People v. Waters CA1/4

I.

INTRODUCTION

Appellant Michael James Waters was convicted of both possession of child pornography pursuant to Penal Code section 311.11, subdivision (a) (section 311.11(a)) (count one) and possession of child pornography with a prior conviction requiring registration under the Sex Offender Registration Act pursuant to section 311.11, subdivision (b) (section 311.11(b)) (count two).1 Appellant contends that both convictions must be reversed because section 311.11(b) is a penalty provision, not a separate offense, and therefore it was prejudicial error for the trial court not to bifurcate the issue of his prior conviction at trial. If subdivision (b) is a separate offense, then he asserts that it violated the double jeopardy clause of the federal Constitution for him to be convicted of the same crime twice based on the same course of conduct. At a minimum,

1 All subsequent statutory references are to the Penal Code.

1 he argues, and respondent concedes, count one must be vacated as a lesser included offense of count two. We need not decide whether section 311.11(b) is a separate crime from section 311.11(a) because, assuming it is not, and assuming further that it was error…