California Probation Revocation Computer Apparent Age Expert Knowledge Child Pornography Lawyers Att
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH KUREY, Defendant and Appellant.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
March 28, 2001, Decided
The trial court entered an order revoking defendant's probation for violation of Pen. Code, § 311.11 (possession of child pornography, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct). A sheriff's deputy had searched defendant's computer, and discovered movie clips purchased from a commercial Web site, depicting young male and female individuals engaged in sexual activity.
Issues:
Observation and Holding:
As to the constitutional infirmity, the court observed the California statute applies to the possession of material "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 years personally engaging in or simulating sexual conduct." The California statute thus requires a real minor and also requires knowledge of minority on the part of the perpetrator. There is no constitutional infirmity in section 311.11 similar to that found in Free Speech.
As to the appearance evidence the court observed that appearance evidence as proof of age has been received in prior California cases. In People v. Montalvo the court discussed in dictum the proof necessary to satisfy the element of age, noting that it was not limited to documents of actual age. Instead, in every case such evidence [corporal appearances] should be accepted and weighed for what it may be in each case worth. In particular the outward physical appearance of an alleged minor may be considered in judging his age."
As to the defendant's insufficient evidence of knowledge of minority the court observed in the case at bar, the trial judge had his own observations of the video clips as well as the expert testimony of Ms. Ming. This constituted substantial evidence that the persons depicted were in fact under the age of 18. To prove that Kurey had knowledge that the matter depicted a person under the age of 18 years personally engaging in or simulating sexual conduct, in addition to the above evidence, the trial judge also had the testimony of the investigator that when asked how old he believed the subjects on the video to be, appellant answered that he hoped they were 18, but "I believe they are under 18." The burden of proof in a probation revocation hearing is a preponderance of the evidence. Kurey's own statement is sufficient to prove that he had knowledge of the minority status of the actors in the video clips he possessed.
The order of the trial court is affirmed.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
March 28, 2001, Decided
The trial court entered an order revoking defendant's probation for violation of Pen. Code, § 311.11 (possession of child pornography, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct). A sheriff's deputy had searched defendant's computer, and discovered movie clips purchased from a commercial Web site, depicting young male and female individuals engaged in sexual activity.
Issues:
- Whether the finding of a probation violation was unconstitutional?
- Whether evidence of "apparent age" should be restricted to that which is competent to establish true chronological age?
- Whether the trial court should have sustained appellant's objection to the testimony of Ms. Ming?
- Whether the evidence was insufficient to show that Kurey had knowledge that the actors were under 18 years of age?
Observation and Holding:
As to the constitutional infirmity, the court observed the California statute applies to the possession of material "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 years personally engaging in or simulating sexual conduct." The California statute thus requires a real minor and also requires knowledge of minority on the part of the perpetrator. There is no constitutional infirmity in section 311.11 similar to that found in Free Speech.
As to the appearance evidence the court observed that appearance evidence as proof of age has been received in prior California cases. In People v. Montalvo the court discussed in dictum the proof necessary to satisfy the element of age, noting that it was not limited to documents of actual age. Instead, in every case such evidence [corporal appearances] should be accepted and weighed for what it may be in each case worth. In particular the outward physical appearance of an alleged minor may be considered in judging his age."
As to the defendant's insufficient evidence of knowledge of minority the court observed in the case at bar, the trial judge had his own observations of the video clips as well as the expert testimony of Ms. Ming. This constituted substantial evidence that the persons depicted were in fact under the age of 18. To prove that Kurey had knowledge that the matter depicted a person under the age of 18 years personally engaging in or simulating sexual conduct, in addition to the above evidence, the trial judge also had the testimony of the investigator that when asked how old he believed the subjects on the video to be, appellant answered that he hoped they were 18, but "I believe they are under 18." The burden of proof in a probation revocation hearing is a preponderance of the evidence. Kurey's own statement is sufficient to prove that he had knowledge of the minority status of the actors in the video clips he possessed.
The order of the trial court is affirmed.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content