Filed 3/29/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re H.N., a Person Coming 

Under the Juvenile Court Law.

2d Juv. No. B313698

(Super. Ct. No. YJ40388)

(Los Angeles County)

THE PEOPLE,

 Plaintiff and Respondent,

v.

H.N.,

 Defendant and Appellant.

By passing Proposition 83 (“Jessica’s Law”), did the voters 

intend to continue to classify the crime of possession of child 

pornography as a “wobbler” so that juvenile courts could continue 

to declare it as either a felony or a misdemeanor? We conclude 

they did.

H.N., a minor, appeals an order of the juvenile court 

sustaining a Welfare and Institutions Code section 602 petition 

with a finding that he possessed child pornography. (Pen. Code, 

§ 311.11, subd. (a).) We conclude, among other things, that the

juvenile court erred by not making an express finding per 
2

Welfare and Institutions Code section 702 whether the Penal 

Code section 311.11, subdivision (a) offense was a felony or a 

misdemeanor. We strike the court’s maximum term of 

confinement finding because H.N. was placed on home probation. 

We remand to the juvenile court to make a finding whether the 

offense is a felony or a misdemeanor, but otherwise affirm. 

FACTS

H.K. testified that she had a “friendship” relationship with 

H.N. In October 2019, H.N. came over to her house. H.K. was 15 

years old. H.N. was also 15 years old. H.N. and H.K. had 

“consensual” sexual “intercourse.”

H.N. videotaped this sexual encounter without H.K.’s 

knowledge or consent. 

The People filed a Welfare and Institutions Code section 

602 petition alleging H.N. had violated “PENAL CODE [section] 

311.11(a), a Felony.” (Italics added.) The juvenile court 

sustained the petition and found H.N. possessed child 

pornography. The court placed H.N. on home probation. It found 

a maximum term of confinement to be three years.

DISCUSSION

Welfare and Institutions Code Section 702 Finding

H.N. contends the juvenile court erred by not making a 

required Welfare and Institutions Code section 702 finding

whether the Penal Code section 311.11, subdivision (a) offense 

was a felony or a misdemeanor. 

The People contend a Welfare and Institutions Code section 

702 finding was not required because the possession of child 

pornography offense is a felony, not a wobbler or a misdemeanor.

Welfare and Institutions Code section 702 provides, in 

relevant part, “If the minor is found to have committed an offense 
3

which would in the case of an adult be punishable alternatively 

as a felony or a misdemeanor, the court shall declare the offense 

to be a misdemeanor or felony.” A Welfare and Institutions Code 

section 702 finding is mandatory where the offense is a wobbler,

and, in appropriate cases, a remand may be required for the 

juvenile court to make the finding. (In re Manzy W. (1997) 14 

Cal.4th 1199, 1209.)

Penal Code Section 311.11, Subdivision (a)1

Section 311.11, subdivision (a) provides, in relevant part, 

“Every person who knowingly possesses or controls any matter 

. . . that contains or incorporates in any manner, any film or 

filmstrip, the production of which involves the use of a person 

under 18 years of age, knowing that the matter depicts a person 

under 18 years of age personally engaging in or simulating sexual 

conduct . . . is guilty of a felony and shall be punished by 

imprisonment in the state prison, or a county jail for up to one 

year, or by a fine not exceeding two thousand five hundred dollars 

($2,500), or by both the fine and imprisonment.” (Italics added.)

The juvenile court sustained the petition. It neglected to 

declare the section 311.11 offense to be a felony or a 

misdemeanor.

H.N. notes the current statute was an amendment of a 

prior 2006 statute which was a wobbler, allowing the crime to be 

sentenced as a felony or a misdemeanor. (§ 311.11.) The prior 

law listed the punishment as either a state prison term or a 

county jail term of one year. He claims the current statute

“retained a county jail term of one year” that “strongly suggests” 

1 All further statutory references are to the Penal Code 

unless otherwise stated.
4

an intent “to make the section 311.11, subdivision (a) offense a 

wobbler.” We agree.

When an offense is punishable by either a state prison or 

county jail term, it is normally considered a “wobbler,” meaning 

that it can be either a felony or a misdemeanor. (In re Grant 

(2014) 58 Cal.4th 469, 475, fn. 3.) Section 311.11 contains the 

alternative sentencing language of a wobbler. In Grant, the court 

did not decide whether this offense was a wobbler because Grant, 

an adult, pled guilty to a felony. But in dicta it said there 

appeared to be a “potential anomaly” because the Legislature 

designated this offense “only as a felony” when it also maintained 

the alternative sentencing language in the statute. (Grant, at 

p. 475, fn. 3.)

In People v. Westerfield (2019) 6 Cal.5th 632, 683, footnote 

6, our Supreme Court said the 2006 version of section 311.11 was 

a wobbler. The People note the court also said the current 2007 

version of this statute designates this offense “a felony.”

(Westerfield, p. 683, fn. 6.) But the People’s reliance is misplaced.

In Westerfield, the court made this brief reference in a footnote.

The defendant was convicted under the former version of this 

statute. The court was not asked to decide, nor did it decide,

whether the current statutory offense could also be interpreted to 

be a wobbler. We “do not treat cases” as “authority” for positions 

not considered on appeal. (People v. Fontenot (2019) 8 Cal.5th 57, 

73.)

The People highlight a phrase in section 311.11 mentioning 

“felony” and claim it is dispositive. We do not view that phrase in 

isolation. (People v. Nelson (2011) 200 Cal.App.4th 1083, 1098.) 

We view the entire language of the statute in context. (Ibid.) 

The label placed on a crime may not be dispositive because a 
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crime may be a wobbler based on “the punishment prescribed.”

(People v. Park (2013) 56 Cal.4th 782, 789.) 

The Legislature added the phrase “is guilty of a felony” to 

the current 2007 version of section 311.11 after the voters passed 

Proposition 83. (Stats. 2007, ch. 579, § 38.) But it also included 

the alternative sentencing language of the prior 2006 statute. 

It is reasonable to conclude the lawmakers and the 

electorate: 1) intended to maintain the wobbler status of this 

offense, and 2) intended “the characterization of the crime” would

be “dependent upon the actual punishment imposed.” (People v. 

Terry (1996) 47 Cal.App.4th 329, 332.)

Because the amendment of section 311.11 occurred due to 

the passage of Proposition 83 (the Sexual Predator Punishment

and Control Act), we apply the following rules: 1) “ ‘When 

interpreting statutory provisions enacted by voter initiative or 

legislative action, our primary purpose is to ascertain and 

effectuate the intent of the enactors’ ” (In re E.G. (2016) 6 

Cal.App.5th 871, 876); and 2) “ ‘[t]o determine this intent, we 

consider the plain, commonsense meaning of the language used, 

and construe the language in the context of the overall 

enactment.’ ” (Ibid.) A relevant factor in determining the voters’ 

intent is the ballot argument in favor of the proposition. (C-Y

Development Co. v. City of Redlands (1982) 137 Cal.App.3d 926, 

933.) Proponents of Proposition 83 claimed amending this 

statute would “[a]llow prosecutors to charge criminals who 

possess child pornography with a felony.” (L.A. County Voter 

Information Guide, Gen. Elec. (Nov. 7, 2006) (hereafter “Guide”)

argument in favor of Prop. 83 by the Legislative Analyst, p. 46), 

some italics added.) 
6

H.N. notes Proposition 83 only advised voters that 

prosecutors would be allowed to consider the offense as a felony.

It does not state they would be required or mandated to do so. 

This is consistent with the offense remaining a wobbler. One

court in dicta concluded that “[a]s a result of Proposition 83,” this 

crime “can now be punished as a felony or misdemeanor.” (People 

v. Manfredi (2008) 169 Cal.App.4th 622, 634.)

The People suggest this offense is a “straight felony” that 

precludes the juvenile court from entering a disposition of 

anything less than a felony. But a straight felony cannot be 

alternatively punished by a one-year county jail term and a fine. 

(People v. Beebe (1989) 216 Cal.App.3d 927, 930.) Had the 

Legislature and electorate intended this crime to be a straight 

felony, they would have included only a state prison term as the 

punishment. (Ibid.) Where the Legislature classifies the crime 

as a felony “without providing for alternative punishment,” it is a 

straight felony. (People v. Mauch (2008) 163 Cal.App.4th 669, 

674.)

But where lawmakers provide the alternative sentencing 

option in that statute, it provides the authority to sentence it as a 

misdemeanor. (Ibid.) In Proposition 83, voters were advised that 

“existing provisions” of section 311.11 that are “proposed to be 

deleted are printed in strike out type.” (Guide, supra, text of 

proposed laws, p. 127.) But the amended portion of this offense 

required by the proposition did not strike out the alternative 

punishment of “up to one year” in a county jail. (Id. at p. 128.)

The People’s position that violation of this statute must

always be a felony assumes lawmakers and the electorate

believed the offense involves such a uniform level of seriousness 

and culpability that all violators must be felons. But there are
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levels of seriousness and culpability in committing this offense. 

The most serious violations involve people who stockpile large 

amounts of this material, as opposed to defendants who possess a 

single item, as in this case. (§ 311.11, subd. (c)(1).) There is a

more egregious nature of the crime where it includes possession 

of images of child “ ‘sexual sadism’ ” or “ ‘sexual masochism,’ ” 

elements not involved here. (Id., subd. (c)(2).) This shows an 

intent that the higher and lower levels of this offense should be 

treated differently in determining punishment and in deciding 

whether the offense, based on the facts in a given case, is a felony 

or a misdemeanor. 

H.N. claims that even if the statute may be considered 

ambiguous, the rule of lenity should apply in his favor. We agree.

“[W]hen a statute defining a crime or punishment is susceptible 

of two reasonable interpretations, the appellate court should 

ordinarily adopt that interpretation more favorable to the 

defendant.” (People v. Avery (2002) 27 Cal.4th 49, 57.) In this 

case the reasonable interpretation of the statutory language is 

that the crime is a wobbler. (People v. Manfredi, supra, 169 

Cal.App.4th at p. 634 [the “defendant is entitled to the benefit of 

the ambiguity in section 311.11”].)

A Straight Felony for a Child Offender?

But even assuming the voters had a general intent to make 

this crime a straight felony, the relevant question is who they 

wanted to target for the felony label. Proposition 83 was entitled 

“SEX OFFENDERS. SEXUALLY VIOLENT PREDATORS. 

PUNISHMENT, RESIDENCE RESTRICTIONS AND 

MONITORING. INITIATIVE STATUTE.” (Guide, supra, text of 

Prop. 83, p. 42.) Voters were told, “Proposition 83–JESSICA’S 

LAW–will protect our children by keeping child molesters in 
8

prison longer; keeping them away from schools and parks; and 

monitoring their movements after they are released.” (Id., 

argument in favor of Prop. 83, p. 46, italics added.) Proposition 

83 amended section 311.11 to allow prosecutors “to charge 

criminals who possess child pornography with a felony.” (Ibid., 

some italics added.)

But wards of the juvenile court are not classified as 

criminals (Welf. & Inst. Code, § 203) and their cases “ ‘are 

resolved by dispositions, not sentences.’ ” (In re E.G., supra, 6 

Cal.App.5th at p. 876.)

In Proposition 83, voters were advised that those convicted 

of this offense would be “guilty of a felony” because “[p]redators 

often use child pornography to aid in their molestation.” (Guide, 

supra, text of proposed laws, p. 127.) 

Voters were not asked whether a straight felony should be 

applied to a child who commits this offense and who is not a 

sexual predator or child molester. They were not asked to reform

juvenile court law. We do not assume voters intended to cover 

areas that were not related “to the general object” of the 

proposition (Senate of the State of Cal. v. Jones (1999) 21 Cal.4th

1142, 1158) or were not “expressed or strongly implied” in the 

proposition’s text. (Farmer’s Ins. Exchange v. Superior Court

(2006) 137 Cal.App.4th 842, 858.)

The subject matter of Proposition 83 involved increased 

prison time for sexual predators, screening them before they are 

released, and monitoring them after they are released from 

prison. It did not involve reforming juvenile court dispositions for 

child wards who possess child pornography. We may not infer

Proposition 83 was intended to change the practice of juvenile 

courts declaring the offense to be a misdemeanor for child wards 
9

because the proposition’s “voter information materials” did not 

“make any reference” to changing that practice. (People v.

Valencia (2017) 3 Cal.5th 347, 365.)

Adults who commit this crime may be classified as felons. 

But that classification would not necessarily be appropriate in all 

cases involving a child ward. The People have not shown the 

voters intended to place a minor teenager in a juvenile court

proceeding in the same felony category for this offense as an 

adult sexual predator in criminal court.

“[T]he teenager [is] less able to evaluate the consequences 

of his or her conduct while at the same time he or she is much 

more apt to be motivated by mere emotion or peer pressure than 

is an adult.” (Thompson v. Oklahoma (1988) 487 U.S. 815, 835, 

plur. opn.) Consequently, “the Court has already endorsed the 

proposition that less culpability should attach to a crime 

committed by a juvenile than to a comparable crime committed by 

an adult.” (Ibid., italics added.) The People’s claim that their 

position falls within the words of the statute is thus not 

dispositive here. “ ‘ “[A] thing may be within the letter of the 

statute and yet not within the statute, because not within its 

spirit nor within the intention of its makers.” ’ ” (Westfall v. 

Swoap (1976) 58 Cal.App.3d 109, 116.) 

The California Legislature has been concerned about

applying adult criminal liability standards for minors because

they have “the diminished culpability of youth,” their brains are 

not fully developed, and they lack the judgment possessed by 

adults. (In re Williams (2020) 57 Cal.App.5th 427, 434; see also 

Thompson v. Oklahoma, supra, 487 U.S. at p. 835.) Lawmakers 

are aware that juvenile court wards are substantially different 

from adult court defendants and “[j]uveniles are not directly 
10

charged with crimes.” (In re Hector R. (1984) 152 Cal.App.3d 

1146, 1154.) “That criminal and juvenile justice share a common 

value does not mean that every provision of the Penal Code 

designed to implement that value must be read into the Juvenile 

Court Law . . . .” (Alex T. v. Superior Court (1977) 72 Cal.App.3d 

24, 30.) Unlike an adult defendant in criminal court, “[t]he 

dominant purpose of the Juvenile Court Law remains the welfare 

of the minor.” (Id. at p. 33.)

The parties highlight what they consider to be the 

conflicting language of the statute. But they have not considered 

the application of this statutory offense when applied to adult 

offenders and child offenders. “ ‘We must harmonize “the various

parts of a statutory enactment . . . .” ’ ” (In re Greg F. (2012) 55 

Cal.4th 393, 406.) The “guilty of a felony” and the alternative 

sentencing language are in harmony with respect to the 

distinction between adult and child offenders. They further the 

purposes of both Proposition 83 and Welfare and Institutions 

Code section 702 by: 1) allowing adult sexual offenders, who are 

the target of Proposition 83, to be charged with a felony; and 2) 

giving juvenile courts discretion to declare the offense a 

misdemeanor involving certain child offenders.

The statute and the wobbler language in Proposition 83 

prevent those who were not the target of Proposition 83 from 

automatically falling within the straight felony classification.

Lawmakers and the electorate know children use the Internet to 

“regularly search for online pornography.” (United States v. 

American Library Assn. (2003) 539 U.S. 194, 200; Kathleen R. v. 

City of Livermore (2001) 87 Cal.App.4th 684, 690.) A substantial 

percentage of teenagers engage in “sexting” pornographic images.

But the conduct of these children is substantially different from 
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the actions of adult pedophiles, and making a distinction in the 

legal treatment between these two groups is necessary to prevent 

a miscarriage of justice. (Thompson v. Oklahoma, supra, 487 

U.S. at p. 835; McLaughlin, Crime and Punishment: Teen Sexting 

In Context (2010) 115 Penn St. L.Rev. 135, 140, 173; Mummert, 

Sexting and The Law: How Lack of Reform in California Put 

Teenagers in Jeopardy of Prosecution Under Child Pornography 

Laws Enacted to Protect Them (2010) 38 W.St.U. L.Rev. 71, 76.) 

Classifying adult offenders who possess child pornography

as felons furthered the goal of the proposition by protecting 

children from dangerous pedophiles who view the material to 

stimulate their pedophilia tendencies and potential actions. But 

the automatic inclusion of children who view this material 

because of childhood curiosity into the straight felony category

would not further the main goal of the proposition and could be 

detrimental to those children.

The Legislature and the electorate may have reasonably 

believed that a juvenile court should therefore have the authority 

to decide whether classifying the offense as a felony would not be 

suitable for a child who may need counseling, or in those cases 

where the child, due to immaturity or other youth-related 

reasons, possessed the material. They could reasonably have 

intended that in such cases the juvenile court should have the 

discretion to determine whether calling this a felony would be 

detrimental to the child’s future development or would not 

further the purposes of juvenile court rehabilitation. (In re E.G., 

supra, 6 Cal.App.5th at p. 883.) This offense should be a wobbler 

in those cases.

Lawmakers and the electorate knew the main goal of

juvenile courts is to apply “maximum flexibility” to achieve a just 
12

result based on the individual circumstances of each case for the 

benefit of child wards. (In re James R. (2007) 153 Cal.App.4th

413, 432.) Treating this offense as a wobbler for children enables 

the courts to fully exercise their authority to achieve that goal. 

Treating it as a straight felony limits the scope of their flexibility,

impedes that goal, and is a result that was not anticipated by 

lawmakers and the electorate.

The juvenile court erred by not deciding whether the 

offense was a felony or a misdemeanor. 

Maximum Term of Confinement Finding

The juvenile court placed H.N. “HOME ON PROBATION.” 

But it also found H.N. “may not be held in physical confinement 

for a period to exceed 3-years.”

The parties correctly note that the juvenile court’s threeyear maximum term of confinement finding must be stricken.

“[W]here a juvenile court’s order includes a maximum 

confinement term for a minor who is not removed from parental 

custody, the remedy is to strike the term.” (In re A.C. (2014) 224 

Cal.App.4th 590, 592.)
13

DISPOSITION

The maximum term of confinement finding is stricken. The 

case is remanded to the juvenile court for a finding whether the 

section 311.11 offense is a felony or a misdemeanor. If the court 

finds it is a misdemeanor, it shall modify the remaining 

disposition orders to be consistent with a misdemeanor offense. 

In all other respects, the order sustaining the petition is affirmed. 

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

PERREN, J.

TANGEMAN, J.
14

Nancy L. Newman, Judge

Superior Court County of Los Angeles

______________________________

Mary Bernstein, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.