In re GARY D. GRANT on Discipline
No. S197503
Supreme Court of California
Jan. 23, 2014
58 Cal. 4th 469
Starr Babcock, Richard J. Zanassi, Mark Torres-Gil, Kimberly Anderson and Margaret Warren for Petitioner Chief Trial Counsel of the State Bar of California.
Gary D. Grant, in pro. per.; Law Offices of Michael G. York and Michael G. York for Respondent Gary D. Grant.
OPINION
CORRIGAN, J.—In 2009, Gary D. Grant pleaded guilty to felonious possession or control of child pornography. (
The office of the Chief Trial Counsel (Chief Trial Counsel) requested review to determine whether such an offense involves moral turpitude in every case. (See In re Lesansky (2001) 25 Cal.4th 11, 16 [104 Cal.Rptr.2d 409, 17 P.3d 764] (Lesansky).) We conclude that it does. Accordingly, we reject the Review Department‘s proposed discipline and disbar Grant from the practice of law.
I. BACKGROUND
Grant was admitted to practice in 1994. In 2008, he was charged with three counts of knowingly possessing or controlling child pornography. (
During a four-day trial, the Bar prosecutor called Amy Wong, a forensic specialist from the High Technology Crime Unit of the Orange County District Attorney‘s Office. Wong examined items seized from Grant‘s residence, including three computers and storage media, flagging images of suspected child pornography. Actual images or videos were not received in evidence, but Wong described a number of them. One computer contained a peer-to-peer file-sharing program with a file titled R@ygold Three Russian PreTeens.mpg. The file contained video showing three girls, two of whom were apparently under 14. They were nude below the waist and urinating.
Wong also found images of nude or seminude girls apparently under 16 as well as evidence that Grant e-mailed three individuals an image of two nude girls under 16 “touching themselves in the crotch area.” Wong acknowledged on cross-examination that she was “not an expert in identifying the ages of children.” But from approximately 100 images of potential child pornography seized from Grant‘s residence, she narrowed down the images to those showing girls whose age she was “comfortable” estimating.
Grant testified in his own defense. He admitted his “sex and love addiction and . . . addiction to Internet pornography.” He obsessively viewed adult pornography online and estimated that he had accumulated more than 300,000 computer images of adult pornography. He admitted having in his “possession or control” two pornographic images of children, but maintained he did not solicit them. He explained that when he acquired adult pornography by e-mail, he unknowingly received the images of children as well. When he saw them, he “found [them] repugnant and instantly deleted [them].” However, unbeknownst to him, they remained on his computer. He
The defense also called numerous character witnesses, including Grant‘s former colleagues and clients. They opined that Grant was a competent attorney possessed of good character. Grant‘s conviction did not alter their view.
James Hughes, one of Grant‘s several therapists, testified Grant suffered from obsessive-compulsive and impulse-control disorders. As a result, he engaged in compulsive “masturbatory activity . . . usually to . . . Internet porn activities.” Hughes opined that Grant “was not a chronic child pornography addict,” having neither “solicit[ed] . . . [nor] collect[ed] kiddie porn.” He admitted on cross-examination, however, that his opinion was based upon Grant‘s account of having received only two unsolicited images.
The hearing judge rejected Grant‘s testimony as not credible. He concluded the facts supporting the conviction involved moral turpitude, and recommended disbarment. The judge reasoned that the conviction “involve[d] such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of [Grant‘s] conduct would be likely to undermine public confidence in and respect for the legal profession,” and is, therefore, a conviction of a crime involving moral turpitude. (Lesansky, supra, 25 Cal.4th at p. 16.)
The Review Department reversed, concluding that Wong‘s testimony was inadmissible as violating the secondary evidence rule (
The Chief Trial Counsel petitioned for review (Cal. Rules of Court, rule 9.14), urging the possession or control of child pornography is an offense of
II. DISCUSSION
Grant contends his conviction under
Whether “[a]n offense necessarily involves moral turpitude [because] the conviction would in every case evidence bad moral character . . . is a question of law to be determined by this court.” (Lesansky, supra, 25 Cal.4th at p. 16, citation omitted.) Moral turpitude is a concept that “defies exact description” (In re Mostman (1989) 47 Cal.3d 725, 736 [254 Cal.Rptr. 286, 765 P.2d 448]) and “cannot be defined with precision” (Baker v. State Bar (1989) 49 Cal.3d 804, 815, fn. 3 [263 Cal.Rptr. 798, 781 P.2d 1344]). We have noted, however, that in attorney discipline cases, moral turpitude should be defined with the aim of protecting the public, promoting confidence in the legal system, and maintaining high professional standards. (Lesansky, at p. 16.)
Lesansky was convicted of attempting to commit a lewd act on a child age 14 or 15. (Lesansky, supra, 25 Cal.4th at p. 13.) We explained that “[c]riminal conduct not committed in the practice of law or against a client reveals moral turpitude if it shows a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties) or if it involves such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney‘s conduct would be likely to undermine public confidence in and respect for the legal profession. [Citations.]” (Id. at p. 16.) In re Craig (1938) 12 Cal.2d 93, 97 [82 P.2d 442], described moral turpitude as “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty.” Moreover, we have noted that “[c]onviction of some crimes establishes moral turpitude on its face . . . includ[ing] particular crimes that are extremely repugnant to accepted moral standards such as . . . serious sexual offenses.” (In re Fahey (1973) 8 Cal.3d 842, 849 [106 Cal.Rptr. 313, 505 P.2d 1369], citations omitted, citing In re Boyd (1957) 48 Cal.2d 69 [307 P.2d 625]; see In re Duggan (1976) 17 Cal.3d 416, 423 [130 Cal.Rptr. 715, 551 P.2d 19].)
Rather than accept those formulations, Grant relies on People v. Castro (1985) 38 Cal.3d 301, 315 [211 Cal.Rptr. 719, 696 P.2d 111], in which we described crimes involving moral turpitude as including those that indicate a ” ‘general readiness to do evil.’ ” He contends that “violation of
“Child pornography harms and debases the most defenseless of our citizens.” (United States v. Williams (2008) 553 U.S. 285, 307 [170 L.Ed.2d 650, 128 S.Ct. 1830].) Its production, sale, and distribution are ” ‘intrinsically related’ to the sexual abuse of children in two ways. [Citation.] First, as a permanent record of a child‘s abuse, the continued circulation itself . . . harm[s] the child who had participated. Like a defamatory statement, each new publication of the speech . . . cause[s] new injury to the child‘s reputation and emotional well-being. [Citation.] Second, . . . the traffic in child pornography [provides] an economic motive for its production. . . .” (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 249 [152 L.Ed.2d 403, 122 S.Ct. 1389] (Ashcroft), citing New York v. Ferber (1982) 458 U.S. 747, 759–760 [73 L.Ed.2d 1113, 102 S.Ct. 3348]; see Osborne v. Ohio (1990) 495 U.S. 103, 109–110 [109 L.Ed.2d 98, 110 S.Ct. 1691] (Osborne).) Under either rationale, child pornography is proximately linked to the sexual abuse of children (Ashcroft, at p. 250), “a most serious crime and an act repugnant to the moral instincts of a decent people” (id. at p. 244, italics added).
Grant does not “dispute that any harm or abuse to a child is serious or that the subject of unlawful images may suffer while an image circulates.” He also concedes that “the manufacture or distribution of child pornography likely involves moral turpitude per se.” He attempts to distinguish what he terms the “simple possession” of child pornography, however, arguing that it “does not include an intent to harm, offend, or corrupt another; thus, it does not necessarily involve moral turpitude.” The argument is unpersuasive.
“[T]he ‘victimization’ of the children . . . does not end when the photographer‘s camera is put away. The consumer, or end recipient, of pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways. [¶] First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials. . . . The consumer who ‘merely’ or ‘passively’ receives or possesses child pornography directly contributes to this continuing victimization. [¶] Second, . . . [t]he recipient of child pornography obviously perpetuates the existence of the images received, and therefore the recipient may be considered to be invading the privacy of the children depicted, directly victimizing these children. [¶] Third, the consumer of child pornography instigates the original production of child pornography
In arguing that the knowing possession or control of child pornography does not necessarily involve moral turpitude, Grant posits “two scenarios wherein a person could be convicted under section 311.11(a) and the individual‘s conduct would not evidence bad moral character.” Neither example advances his argument.
First, Grant contends that the possession of a pornographic image “depict[ing] an individual on the cusp of majority” would not evidence bad moral character. He reasons that, in such a situation, “possession of an image may be unlawful, but the image in and of itself may not be patently offensive (as images of pre-pubescent minors may be).” This argument relies on a First Amendment obscenity inquiry: Whether material “appeals to the prurient interest [and] is patently offensive in light of community standards.” (Ashcroft, supra, 535 U.S. at p. 246.) Grant conflates that question with the issue at hand: Whether the possession of pornographic images depicting a person under 18 necessarily involves moral turpitude.
Before 1994,
Second, Grant contends that “a person [who] unknowingly come[s] into possession of an unlawful image” can be convicted under
Grant tries to distance himself from his plea by relying on Tecklenburg. That reliance is misplaced. The narrow question of law presented in that case was whether Tecklenburg could be convicted of knowingly possessing pornographic images of children contained in his computer‘s temporary Internet files (TIFs) without evidence he knew that the images had been stored there. (Tecklenburg, supra, 169 Cal.App.4th at pp. 1414–1415.)
Thus, neither of Grant‘s scenarios undermines our conclusion that the knowing possession or control of child pornography involves moral turpitude in every case. Moreover, our holding is consistent with other state and federal decisions. In Iowa Supreme Court Attorney Disciplinary Bd. v. Blazek (Iowa 2007) 739 N.W.2d 67, 69, the Iowa Supreme Court disbarred an attorney after concluding that the possession of child pornography is ” ’ “an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general” ’ ” constituting moral turpitude. In U.S. v. Santacruz (9th Cir. 2009) 563 F.3d 894, 895, the Ninth Circuit concluded that the possession of child pornography is a crime of moral turpitude. Nunez v. Holder (9th Cir. 2010) 594 F.3d 1124, 1132, described the knowing possession of child pornography as “categorically [a] crime[] of moral turpitude.” Although Santacruz and Nunez arose in the immigration context, the Ninth Circuit applied the standard of moral turpitude as involving a crime that was ” ‘vile, base or depraved and . . . violates societal moral standards.’ ” (Santacruz, at p. 896; see Nunez, at p. 1131.) That formulation is substantially similar to those we have employed in attorney disciplinary proceedings. (See, e.g., In re Fahey, supra, 8 Cal.3d at p. 849; In re Craig, supra, 12 Cal.2d at p. 97.)4
The question presented here is a narrow one. Our resolution does not turn on the evidentiary determinations raised in the Bar hearing or review process. We express no opinion on the evidentiary admissibility or sufficiency questions. Grant pleaded guilty to the felony of knowingly possessing child pornography. His guilty plea establishes those facts as a matter of law. The only question here is whether that crime, as admitted by him, constitutes moral turpitude per se. It does. The knowing possession of child pornography is “a serious breach of the duties of respect and care that all adults owe to all
III. DISPOSITION
It is hereby ordered that Gary D. Grant be disbarred from the practice of law and that his name be stricken from the roll of attorneys. Costs are awarded to the State Bar.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Liu, J., concurred.