De La Cerda v. Superior Court

INTRODUCTION

The writ petition before us concerns Penal Code section 311.11, subdivision (c), 1 and whether that statutory provision constitutes substantive offenses or an alternate penalty provision. Section 311.11(a), defines the offense of child pornography possession and provides an alternate misdemeanor or felony punishment of up to three years in prison upon conviction. An alternate misdemeanor or felony punishment of up to five years in prison is prescribed under section 311.11(c) if section 311.11(a) is violated and at least one of two aggravating factors is present. Petitioner Matthew James De La Cerda was charged with three counts of child pornography possession under section 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). Petitioner filed a demurrer asserting counts 1 and 2 under section 311.11(c) were not predicated on…