my name is wayne mcmillan please the court the issue presented in this case is whether california penal code section me the biggest problem and i think you might benefit from addressing is twenty to fifty to eighty four b n if you just go right down the elements of each of the statutes there seems to be a pretty close well there it is close but there appeared to be pretty similar correct oh yes in another representation of image that image including but not limited to film photographs computer disks twenty to thirty two a for books films videotapes or other matter statutory term matter i believe includes drives in desks as well so that's pretty similar correct yes ok and then the defendant knows that the matter depicts a person under age of eighteen years personally engaging in or simulating sexual depiction of the minor engage in sexually explicit conduct to minors a person under age of eighteen years those two pretty simple and then if you turn the production of the other involves the use of a person under the age of eighteen years eleven a person can violate the statute by possessing material of an individual personally engaging in sexual conduct or simulating sexual conduct as defined in section the three eleven you're suggesting that the word sexually explicit in the federal statute is different from engaging in your stimulating use just mr i mean how must a been convicted under the stimulating sexual activity rather than the engaging in sexual activity well of course the burden is on the conduct the find of the federal statute yes and how to be different well compare the city but first of all the whole scheme of this of the statute deals with the sexual exploitation of exploitation of children not merely pornography there is another section that is specifically not listed in the act and that does the alleged child pornography and that's two thirty to capitalize it uses practically the same language but instead of a special sexually explicit conduct that is the phrase pornography perhaps one could argue that mr armey has disaster in this picture of the young lady is child pornography perhaps he was but it is clearly not sexually explicit conduct considered sexually explicit conduct on the federal statute there's another distinction though under the federal statute there's an affirmative defense here from a defense allows someone to demonstrate that they only matter the question in this case is the purely legal question of whether under the categorical approach the state law child porn i possessed child pornography possession charge under which mr armey who was convicted i sense that needs to be in the state statute that to be equivalent moving on to his argument about the affirmative defense first i'd like to point out that the the affirmative defense in the federal statute confirms that the deals with the phrase in the terminology of child pornography something that is less serious because one can create or produce child pornography in a way that does not involve the exploitation of the child conduct that she was engaged in and less not sexually explicit as as contemplated by the three statutes that it could be sexually explicit as define under california law and i think that's a distinction ok thank you the matter will be submitted