De La Cerda v. Superior Court
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The defendant was charged with three counts of child pornography possession under Penal Code 311.11: count 1–violation of section 311.11(a) that includes over 600 images of child pornography, including 10 or more images of a prepubescent minor or minor under 12 years of age (311.11(c)(1)); count 2–violation of section 311.11(a) that includes sadomasochistic child or youth pornography (311.11(c)(2)); and count 3–possession of child pornography in violation of section 311.11(a). He argued that counts 1 and 2 under section 311.11(c) were not predicated on substantive offenses for which separate convictions were permitted–section 311.11(c) was an alternate penalty provision for a violation of section 311.11(a) where at least one aggravating factor exists.
On remand from the California Supreme Court, the court of appeal concluded section 311.11(c) is an alternate penalty provision, not a substantive offense. As counts 1 and 2 do not state substantive offenses, they may not be separately charged pursuant to section 954.
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