Error and/or relief
There is insufficient evidence to support the child pornography count. The court also impermissibly restricted cross-examination to the extent that it violated the defendant’s right to cross-examine the witness. After reconsideration following four days of testimony, the court changed its mind. Rather than allow the defense to rebut the evidence already before the jury or declare a mistrial, the court instructed the jury that it was striking that portion of the victim’s testimony over the last four days as to her feelings in response to defendant’s actions, statements and text messages, instructing the jury to disregard the stricken testimony.
On this record, the defendant was denied a fair trial, and the judgment is reversed.
First Holding:
There is insufficient evidence to support the child pornography count. The photograph on which it relies does not depict a minor personally engaging in or simulating sexual conduct, as defined in section 311.4(d). Exhibition of the breasts is not included in the statutory definition of sexual conduct. In the context of section 311.4, the rectal area is not equivalent to buttocks and, to the extent rectal area may include any portion of the buttocks, it is limited to a portion of the lower buttocks near the rectum or anus.
Authority:
PEN 311.4(d)
PEN 311.11(a)(1)
PEN 311.4(d)
People v. Wallace (1992) 11 Cal.App.4th 568, 582 ([exposure of breasts does not constitute the prohibited exhibition under section 311.4], disapproved on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452)
People v. Cantrell (1992) 7 Cal.App.4th 523, 545
Second Holding:
The Kongs factors are not included in the standard CALCRIM No. 1145 instruction. The factors are derived from People v. Kongs, where the Court of Appeal applied a list of six factors adopted by the federal courts for a trier of fact to consider when determining what constitutes a lascivious exhibition of specified private parts in assessing a sufficiency of the evidence claim under section 311.4 (using a minor to pose for sex acts) and section 311.11(a) (possession of child pornography).
[GARY NOTE: While it would be perfectly proper to provide the specific language and factors recited in the opinion, I’ve exercised my “G-Rating”-censorship-reserved-right to modify the actual language used and to go no further than I’ve recited. If the factors may have a bearing in your case, you should be reading Kongs for yourself.]Authority:
People v. Kongs (1994) 30 Cal.App.4th 1741, 1753–1755
Third Holding:
We conclude no reasonable jury could determine, based on the overall content of the photograph, that it depicts an exhibition of the rectal area for the viewer’s sexual stimulation. We thus conclude the subject photograph does not, as a matter of law, depict the minor engaging in or simulating sexual conduct. Consequently, the evidence was insufficient to support the defendant’s conviction for possession of child pornography in count 26. The Double Jeopardy Clause bars retrial on this charge.
Authority:
People v. Spurlock (2003) 114 Cal.App.4th 1122, 1133
People v. Hin (2025) 17 Cal.5th 401, 468
Fourth Holding:
The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial.
Authority:
People v. Partida (2005) 37 Cal.4th 428, 439
Estelle v. McGuire (1991) 502 U.S. 62, 70
People v. Albarran (2007) 149 Cal.App.4th 214, 229
Fifth Holding:
At trial, the prosecutor extensively questioned the minor about how the defendant made her feel through his statements and actions. The defendant’s defense counsel objected to the prosecutor’s line of questioning on relevance grounds, but the trial court overruled the objection, finding the testimony relevant to the minor’s credibility. As a result, over the course of four days, the minor was permitted to testify extensively on direct examination on how the defendant’s encouraging words made her feel.
When the defense proffered evidence that portrayed an opposite picture of the minor, the trial court conceded that it should have sustained the defense objection on relevancy grounds, denied the defendant’s request to introducing the contrasting evidence, and purported to strike the offending portions of the minor’s direct testimony, instructing the jury to disregard the minor’s testimony over the four days as to her feelings regarding the defendant’s statements. This presentation of extensive inadmissible evidence, combined with the exclusion of defense evidence that would have rebutted the inadmissible testimony, denied the defendant of his due process right to a fair trial.
Authority:
People v. Albarran (2007) 149 Cal.App.4th 214
Sixth Holding:
Constitutional errors in admitting or excluding evidence are both subject to harmless error review. Federal constitutional errors subject to harmless error review are reviewed under Chapman, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a reasonable possibility that the error contributed to the verdict.
Authority:
People v. Mil (2012) 53 Cal.4th 400, 412
Chapman v. California (1967) 386 U.S. 18,
People v. Reese (2017) 2 Cal.5th 660, 671
Seventh Holding:
Even thoughtfully phrased limiting instructions may be insufficient to mitigate the harm resulting from prejudicial evidence.
Authority:
People v. Guerrero (1976) 16 Cal.3d 719, 730 [No limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors’ minds the prejudicial evidence]
Eighth Holding:
Ordinarily, a party’s failure to object to certain testimony at all, or failure to object on the specific grounds asserted on appeal, would render a challenge to the admission of the testimony forfeited.
Authority:
People v. Oyler (2025) 17 Cal.5th 756, 831