California v. Hishmeh
Annotate this CaseAfter police found thousands of photographs and videos containing child pornography, defendant Joseph Hishmeh was eventually charged in an information with two counts of using his finger to sexually penetrate the victim (a female child between two and three years of age at the time the crimes were committed)(counts 1 and 2), and five counts of touching her in a lewd or lascivious way while photographing and/or videotaping her (counts 3 through 7). After being instructed with CALCRIM No. 3517, the jury asked the trial court how to address lesser included offenses. In its response, the court twice instructed the jury that unless it found the defendant not guilty of the charged crimes, it could not consider the lesser included offenses. By doing so, the Court of Appeal found the trial court erred. Under the circumstances of this case, the error was prejudicial, and convictions were reversed for the charged crimes in counts 1 and 2 of the information.
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