Opinion
INTRODUCTION
A jury сonvicted Julius Allen Sample of three counts of receiving stolen property (Pen. Code, § 496, subd. (a)),
Sample appeals, contending there is insufficient evidence to support three separate convictions for possession of child pornography. He also contends there is insufficient evidence his prior Florida burglary conviction qualified as a prior strike conviction under California law.
The People concede Sample could only be convicted of two of the three counts of possession of child pornography, and we reverse the judgment as to one of the counts. We affirm the judgment in all other respects.
I
Child Pornography Convictions
A
After Sample’s arrest, police officers searched Sample’s backpack and his storage shed. In Sample’s backpack, the officers found a stolen computer and a removable hard drive. In Sample’s storage shed, the officers found another stolen computer. Both computers and the hard drive contained child pornography. The prosecution charged and the jury convicted Sample of three counts of possession of child pornography: one count for the child pornography оn each computer (counts 19 and 20) and one count for the child pornography on the hard drive (count 21).
On appeal, Sample contends we must reverse two of his possession of child pornography convictions because case law only permits one conviction for simultaneous possession of multiple images of child pornography, even if the images are contained on different computers or hard drives. The People concede Sample could not be properly convicted of all three counts of possеssing child pornography. Nonetheless, the People contend Sample could be properly convicted of one count for possessing the child pornography in the computer and removable hard drive found in his backpack, and one count for possessing the child pornography in the computer found in his storage shed because the possession occurred at different locations. We agree.
B
California law prohibits the knowing possession of “any matter” depicting persons under 18 years of age engaging in or simulating sexual conduct. (§311.11, subd. (a).)
In Hertzig, the defendant had multiple videos of children engaged in sexual acts on his computer. (Hertzig, supra,
The appellate court reviewed cases involving multiple convictions for other types of possession crimes and derived two distinct principles from them. (Hertzig, supra,
In Manfredi, the prosecution filed a complaint charging the defendant with multiple counts of possession of child pornography after police officers found multiple items of child pornography in the defendant’s home. Each count referenced a separate item of pornography. (Manfredi, supra, 169 Cal.App.4th at pp. 624-625.) The defendant demurred to the complaint, arguing that, under Hertzig, the prosecution could only charge him with one possession count. (Manfredi, supra, at p. 625.) The prosecution countered that it could charge him with multiple possession counts because the specified items of child pornography were in separate media containers (i.e., separate computers, hard drives, discs, and tapes). (Id. at pp. 625, 629.)
The appellate court agreed with the defendant’s position. After reviewing the same possession cases relied upon in Hertzig, the appellate court rejected the prosecution’s one container equals one possession argument and held that “simultaneous possession of multiple child pornography materials at the same location is chаrgeable as but one criminal offense . . . .” (Manfredi, supra, 169 Cal.App.4th at pp. 624, 634.)
The People contend Hertzig and Manfredi are distinguishable because in those cases police officers found the child pornography at the same time and
As the Hertzig and Manfredi courts did, we look to analogous possession cases for guidance аnd find People v. Von Latta (1968)
Applying Von Latta to this case, we conclude Sample’s act of actually possessing child pornography in the computer and removable hard drive found in his backpack was separate аnd distinct from his act of constructively possessing child pornography in the computer found in his storage shed. Thus, we conclude he was properly convicted of two of the three possession counts.
II
Prior Strike Conviction Finding
A
The prior strike conviction allegations against Sample involved a Florida burglary conviction.
The prosecution also submitted and the trial court admitted into evidence an exhibit containing a transcript of the Florida court proceedings. According to the transcript, Sample’s defense counsel informed the Florida court Sample agreed to plead no contest to the burglary of a structure offense in exchange for a six-month jail sentence.
The Florida court then asked the prosecutor for the factual basis for Sample’s plea. The prosecutor stated that Sample had entered the victim’s home, the victim was there at the time and heard noises, the victim yelled at Sample to get out of his house and saw Sample running away. Sample was later apprehended and the victim’s wallet was found nearby. Neither Sample nor his defense counsel objected to or responded to the prosecutor’s recital and, after hearing it, the court accepted Sample’s plea.
Immediately after accepting the plea, the Florida court asked Sample’s defense counsel whether there was any legal cause why Sample’s sentencing should be delayed. Defense counsel did not identify any cause nor did he comment on what had transpired in the proceedings to that point. Rather, he asked the court to consider work release for Sample. The court then asked Sample whether there was anything he wanted to say before the court imposed his sentence. Sample replied, “Um, if I could get a job in the outside, I [unintelligible] taking responsibility for my actions and all, this will never happen again.” After determining there was no cause to delay sentencing, the court once again accepted Sample’s plea of no contest, adjudicated him guilty of burglary of a structure, and sentenced him to the agreed-upon term of six months in jail.
Based on this evidence, the trial court in the instant casе found Sample suffered the prior Florida conviction. The trial court further found the conviction qualified as a prior strike conviction under California law.
Sample contends there is insufficient evidence his prior Florida burglary conviction qualifies as a prior strike conviction under California law because there is insufficient evidence that the structure he burglarized was a residence or that he entered the structure with the intent to commit theft. We conclude there is no merit to this contention.
“For an out-of-state conviction to render a criminal offendеr eligible for sentencing under the three strikes law [citations], the foreign crime (1) must be such that, ‘if committed in California, [it would be] punishable by imprisonment in the state prison’ [citations], and (2) must ‘include[] all of the elements of the particular felony as defined in’ section 1192.7 [, subdivision] (c).” (People v. Warner (2006)
The elements of first degree burglary in California are (1) entry into a structure currently being used for dwelling purposes and (2) with the intent to commit a theft or a felony. (§§ 459,460; People v. Anderson (2009)
In such situations, a trial court may look behind the statutory elements of the prior crime and consider the entire record of conviction to determine whether a defendant’s actual conduct constitutes a prior strike conviction under California law. (People v. Miles (2008)
Sample, however, contends the trial court erred in considering the factual basis the Florida prosecutor supplied because it was inadmissible hearsay. The People counter that the trial court properly considered the factual basis because it cоnstituted an adoptive admission. We agree with the People.
The hearsay exception for adoptive admissions is codified in Evidence Code section 1221, which provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” Thus, “ ‘ “[w]hen a person makes a statement in the presence of a party to an action under circumstances that would normally call for a response if the statement were untrue, the statement is admissible for the limited purpose of showing the party’s reaction to it. [Citations.] His silence, evasion, or equivocation may be considered as a tacit admission of the statements made in his presence.” ’ ” (People v. Jennings (2010)
“Whether the statement constitutes an adoptive admission is ‘determined upon the facts and circumstances therein presented.’ ” (Roberts, supra,
Two appellate courts have addressed- the application of the adoptive admission hearsay exception in circumstances similar to those presented in this case: People v. Sohal (1997)
On appeal, the defendant argued the prosecution’s recital was insufficient to establish the assault conviction was a prior strike conviction because the recital was inadmissible hearsay. (Sohal, supra, 53 Cal.App.4th at pp. 914-915.) The appellate court disagreed, however, concluding the recital was an adoptive admission because defense counsel agreed with it and because the defendant specifically pleaded guilty to assault with a deadly weapon and not a lesser form of assault. (Id. at p. 916.)
Roberts similarly involved the question of whether a priоr Washington assault conviction qualified as a prior strike conviction under California law. (Roberts, supra, 195 Cal.App.4th at pp. 1111-1112.) As in Sohal and the instant case, the prior conviction at issue in Roberts resulted from a guilty plea and the trial court determined it constituted a prior strike conviction relying at least in part on the factual basis supplied by the prosecution at the guilty plea hearing. (Roberts, supra, at pp. 1113-1116.) Specifically, immediately after the defendant pleaded guilty, the prosecution stated the defendant had bit a woman’s lip during a physical altercation with her, part of the woman’s lip could not be reattached, and the woman had permanent scarring. (Id. at pp. 1115, 1119.) Neither defense counsel nor the defendant commented on the prosecution’s recital. {Id. at p. 1119.) Based on the recital, the Washington court determined there was a factual basis for the defendant’s plea and accepted it. (Ibid.)
Unlike the Sohal court, however, the Roberts court concluded the prosecution’s factual recital was not admissible as an adoptive admission. (Roberts, supra,
The Roberts court distinguished Sohal because the defendant in Sohal entered his no contest plea after the prosecution’s factual recital. In addition, his plea was specifically to the crime of assault with a deadly weapon, which is a strike offense.
Sohal is not precisely analogous to the instant case because Sample made his no contest plea after the prosecution’s factual recital, but before the trial court accepted it. Likewise, Roberts is not precisely analogous because Sample did not make an Alford plea. Nonetheless, considering all the circumstances, we conclude there was sufficient evidence to support the trial court’s implied finding Sample’s lack of objection to or response to the prosecution’s factual recital was an adoptive admission.
Moreover, here the circumstances of the offense recited by the prosecution were uncomplicated—Sample entered a person’s home and took the person’s wallet. If he had not entered a home or was disputing this point, it would not have been difficult for him or his counsel to qualify the recital to reflect the discrepancy.
Further, immediately after hearing the prosecution’s recital and accepting Sample’s plea, the Florida court provided both defense counsel and Sample opportunities to speak. While the court’s focus at that point had naturally turned to sentencing as the next step in the plea process, nothing in thе record suggests the court would have precluded defense counsel or the defendant from using the opportunity to comment on the prosecution’s recital if they desired to do so. Rather, it appears from the record that anything done previously in the proceedings could still be clarified, modified, or even undone if necessary. The fact that both defense counsel and Sample used their opportunities to address the court for other purposes—defense counsel to alert the court to Sample’s desire for work release and Sample to express remorse
The judgment is reversed as to count 21 (possession оf child pornography on the removable hard drive).
Haller, J., and Mon, J., concurred.
Notes
Further statutory references are also to the Penal Code unless otherwise stated.
Given the narrow and distinct issues raised on appeal, we omit a general summary of the facts underlying all of Sample’s crimes. We instead include a separate summary of the relevant fаcts in our discussion of each issue raised on appeal.
Section 311.11, subdivision (a) provides: “Every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18
The appellate record did not include the evidence relating to Sample’s Florida conviction or a transcript of the first day of the bench trial on the prior conviction allegation. Because Sample challenged the trial court’s findings regarding the Florida conviction, we augmented the record on our own motion to include these items and ordered copies of them to be provided to counsel. We also provided counsel an opportunity to supplement their arguments based on the augmented items.
Sample admitted during the jury trial on the substantive offenses that he had previously been convicted in Florida of a felony involving theft.
The Florida court simultaneously handled Sample’s plea and the pleas of four other defendants in an assembly line fashion. We reference only those portions of the transcript dealing with Sample’s plea.
The Roberts case was decided after the parties submitted their briefing in this case. We provided the parties with an opportunity to supplement their briefing based on the Roberts case. Both parties elected to do so and we considered their supplemental briefing in reaching our decision.
In North Carolina v. Alford (1970)
In dictum, the Roberts court also expressed doubt that a defendant’s failure to rеspond to a prosecution’s factual recital at a change of plea hearing could ever be an adoptive admission. (Roberts, supra,
The transcript of the Florida court proceedings does not contain all of Sample’s remarks to the court, as the transcriber found some of the remarks unintelligible. It appears Sample’s expression of remorse included an acceptance of responsibility. The Roberts court concluded a defendant’s postplea statements may not be used as admissions to prove a prior strike conviction because once a defendant’s plea is accepted, the defendant is free to speak or not speak without further consequence. (Roberts, supra,
Our rationale for concluding Sample could only have been convicted of two of the three possession of child pornography counts necessitates reversal of either the count related to the computer found in Sample’s backpack or the count related to the removable hard drive, which was found in the same location. Since we cannot determine from the record before us which possession count relates to the computer found in Sample’s backpack and which relates to the computer found in Sample’s storage shed, we are reversing the count related to the removable hard drive.