People v. Hertzig

In People v. Hertzig (2007) 156 Cal.App.4th 398, the court provided a compelling rationale for charging one count of possession of child pornography ( 311.11, subd. (a)) for a defendant who possessed 30 different pornographic videos involving children that had been downloaded onto his laptop computer. The Attorney General in Hertzig justified the multiple convictions based on the separate existence of each pornographic video and the fact that different child victims appeared in each of the videos. (Id. at p. 401.) Acknowledging that the matter was one of first impression, the Hertzig court held that the defendant's possession "of multiple images on one computer" was a single violation of section 311.11, subdivision (a). (Hertzig, supra, 156 Cal.App.4th at pp. 401-402.) The court pointed out that the act proscribed by section 311.11, subdivision (a), is the act of possessing child pornography, not the act of abusing or exploiting children. (Id. at p. 43.) Consequently, the Hertzig court looked to analogous possession cases for guidance. These cases involved multiple convictions for the possession of property with altered serial numbers (People v. Harris (1977) 71 Cal.App.3d 959); multiple convictions for the possession of controlled substances (People v. Rouser (1997) 59 Cal.App.4th 1065); multiple convictions for the possession of firearms (People v. Rowland (1999) 75 Cal.App.4th 61) and multiple convictions for the possession of false checks (People v. Bowie (1977) 72 Cal.App.3d 143). In these possession cases, the courts concluded that where a person is in possession of numerous items of property, there could only be one count of possession for the entire group of items, regardless of the number. The Hertzig court reasoned: "like the 11 blank checks, the nine different pieces of property with defaced or obliterated serial numbers, the two different kinds of controlled substances, or the three weapons of the same type, defendant violated a provision of the Penal Code by the solitary act of possessing the proscribed property. And like the courts in these varied types of possession cases, we are not at liberty to fragment a single crime into more than one offense." (Hertzig, supra, 156 Cal.App.4th at p. 403.)