1

Filed 10/17/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CLARK ALEXANDER MAHONEY, JR.,

Defendant and Appellant.

E055162

(Super.Ct.No. FVA1000035)

OPINION

APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore, 

Judge. Affirmed with directions.

Jan B. Norman, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr. and Anthony Da 

Silva, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted defendant, Clark Alexander Mahoney, Jr., of possessing child 

pornography or child erotica.1 (Pen. Code, § 311.11, subd. (a).)2 He was granted 

probation and appeals, claiming there was insufficient evidence that the crime occurred 

within the statute of limitations, there was insufficient evidence to support the verdict, 

section 311.11, subdivision (a) is void for vagueness and the trial court erroneously failed 

to give the jury a unanimity instruction. We reject his contentions and affirm, while 

directing the trial court to correct errors in the minutes of the sentencing hearing that the 

parties agree need to be corrected.

FACTS3

On January 4, 2010, defendant lived alone at his home, where he kept, inter alia, 

the four computers discussed below. By way of stipulation, the parties agreed to the 

chain of custody of those computers from the time of their seizure from defendant‟s 

house to the time they were analyzed by the prosecution and defense experts. 

 

1

 The prosecution expert witness and the prosecutor explained that child 

pornography comprised images of children (persons under the age of 18) engaged in a 

sexual act or simulated sexual act or a naked child with the focus of the image on the 

child‟s genitals and child erotica comprises images of children in bikinis or underwear or 

otherwise nude, with their genitals not exposed, but the focus of the image on the child‟s 

covered genitals. The instruction given this jury provided that possession of either 

constituted a violation of Penal Code section 311.11, subdivision (a). 

2

 All further statutory references are to the Penal Code unless otherwise indicated.

3

 The prosecutor made the understatement of the decade when she said, at the 

beginning of her argument to the jury, “I know some of the testimony might have been 

confusing.” This confusion could have been avoided.
3

The prosecution expert testified that Internet Explorer automatically logs into 

Internet history every web page the computer user goes to, and saves into temporary 

Internet files the images on every web page the user views, including the graphics that 

make up the banners on web pages. If a computer user is not savvy, he or she may be 

unaware that the images from every web page viewed are saved. 

On one of the computers removed from defendant‟s home on January 4, 2010, a 

Compaq brand computer (Compaq), the prosecution expert found 12 thumbnail size4

computer generated images5 of children having sex with adults. The images had been 

saved to a folder on the hard drive on October 19, 2009 and December 7, 2009, and, 

subsequently, the folder had been deleted. The prosecution‟s expert could not determine 

whether any of the 12 images had been viewed or how they had been deleted. The fact 

that these images had the same creation,6 modification and last access date suggests that 

they appeared on the screen while the computer user was viewing a website, but the 

prosecution expert could not say that the computer user opened any images beyond 

viewing them within Internet Explorer. The images had been saved to temporary Internet 

files. The fact that the December 7 creation time was within four minutes of the last 

access time suggested that they were consistent with advertisements on a web page. The 

 

4

 The expert described thumbnails as different images that are offered for the 

computer user to view when the user opens a web page. 

5

 This means they were images of computer-generated children, not images of 

real children.

6

 This means when they were saved to the hard drive. 
4

evidence relating to these images was not admitted to prove the charged offense, but as 

evidence of defendant‟s intent or mental state as to it. Also on the Compaq were 188 

thumbnail images of girls in bikinis or panties with their legs spread, with the focal point 

of the images being their genitals or buttocks, nine of which were shown to the jury. The 

images had been saved by the Compaq‟s operating system to temporary Internet space on 

the hard drive by the computer user visiting the website on which the images appeared on 

October 19 and December 7, 2009, and on January 3, 2010, then the images had been 

deleted. The standard user name of “Compaq_administrator” was associated with these 

images. A web page for that user name was for defendant. The images would have come 

across the computer‟s monitor, but it could not be determined whether anyone had 

actually viewed them. They were in temporary Internet space, in deleted folders, 

meaning the images had to have been displayed on a web page and the computer user had 

to have visited that web page. Also on the Compaq was a web banner graphic for a child 

pornography image named, “Real Preteen” that had eventually been deleted. A banner 

graphic is saved to the hard drive when the computer user goes to the website where the 

graphic appears. It had been in a temporary Internet file, meaning the image had to have 

been displayed on a web page and the computer user had to have visited that web page. 

The same user name as previously mentioned was associated with this graphic as were 

the above-mentioned dates. Also on the Compaq were three images of females under the 

age of 18 years, two of whom were engaging in sex acts with adults and the other of 

whom was naked, on a bed, with her legs apart. Those images had also been deleted. 

The above mentioned user name was associated with them, as were the above-mentioned 
5

dates. They were in temporary Internet files, meaning the images had to have been 

displayed on a web page and the computer user had to have visited that web page. On the 

Compaq there were also 200 more images of girls in underwear and bikinis similar to 

those described above, which were in unallocated clusters, meaning they had been 

deleted, therefore, it could not be determined when they were created or deleted. Also on 

the Compaq were Google Internet searches for web pages associated with child model 

sites and child erotica-type content, with which the above-mentioned user name was 

associated and “the user profile identified [defendant] as having the email address 

associated with [this user name].” They were in unallocated space. The Compaq also 

contained indicia of a peer-to-peer sharing network that had been used on the computer 

and a movie file with a title consistent with child pornography content that had been 

partially downloaded, suggesting that the computer user had either cancelled the 

download, or deleted it after it had been completed. The text in the network program 

included, inter alia, the words, “masturbation, orgasm, panties, . . . vagina, porn, kiddie, 

incest, preteen [and] fuck.” The prosecution expert opined that the images found on the 

Compaq‟s hard drive had been displayed on its monitor. 

On a Hewlett Packard brand laptop (HP) computer taken from defendant‟s home 

on December 4, 2010, were 64 thumbnail size images of child porn or child erotica—nine 

of them, which depicted young or preteen girls in various states of undress, most wearing 

bikinis or panties, which could be viewed by the computer user on the screen, were 

shown to the jury. Because they were in unallocated space, meaning they had been 

deleted, it could not be determined when they were created or deleted. The 64 images 
6

had been saved to the hard drive before being deleted. The images could be consistent 

with an advertising page or the opening page from a model‟s website showing the content 

of that website. The prosecution‟s expert was not able to say that these images were 

displayed on the HP‟s monitor, because they were in unallocated clusters, however, they 

were consistent with the images he found on the Compaq‟s hard drive, which he opined 

had been on its monitor, and with the images he found on the Apple brand computer‟s 

(Apple) hard drive (discussed below), some of which had been enlarged by the computer 

user. The HP laptop also contained web banner graphics of four very small images that 

had been spliced together to make one large, long image of preteen girls in various states 

of undress. A banner graphic is saved to a hard drive when a computer user goes to the 

website that contains the graphic. In the opinion of the prosecution‟s expert, the girls in 

all of the above-mentioned images were under the age of 18. The images could have 

been saved by the computer user or automatically saved by the operating system, the 

latter when the computer user went to the website on which the images were displayed. 

Also on the HP laptop were deleted Google searches—the user name associated with 

them was Clark, which is defendant‟s first name. The text that had been typed into the 

laptop by the computer user for these searches was “Russian ballet model,” “hot preteen 

models,” “nude preteen” and “nude preteen models.” In his opinion, the images he found 

on the Compaq, the HP and the Apple (discussed below) were images that would be 

found if a computer user entered these search terms. Google suggestions, which are 

suggested search terms that appear when the computer user begins typing a search term 

into the Google web page, are not saved to the Internet history but they are saved as a 
7

temporary file in unallocated space.7 Therefore, the Internet history shows only the 

search term actually typed by the computer user and not the Google suggestions. In the 

prosecution expert‟s opinion, Google suggestions would not suggest a term like “nude 

preteen model” and if a computer user typed “nude” into a search, a suggestion of 

“preteen” would not be made. There were no Google suggestion for “nude preteen.” 

When the prosecution‟s expert typed “preteen nude” into a Google search on this 

computer, no suggestions related to child pornography or child erotica came up. He 

testified that due to federal law, Google does not suggest search terms that lead to child 

pornography. Although he could not say that the images on the HP laptop had been 

displayed on its screen, they were consistent with the images that were on the Apple 

computer, which were viewed and which will be described below. 

On the Apple computer, also taken from defendant‟s home on January 4, 2010, 

were 268 images, which had been deleted, and of which the nine shown to the jury were 

representative. Because the 268 images were in unallocated clusters, meaning they had 

been deleted, it could not be determined when they were created or deleted. The nine 

images shown to the jury were of girls and boys, from infancy to early teen (all under 

18), engaged in sexual acts or having their exposed genitals as the focus of the images. 

The images ranged in size from thumbnail to full-size large images, the latter meaning 

 

7

 The prosecution expert‟s testimony concerning whether Google suggestions are 

saved to the hard drive was very confusing. First, he appeared to assert that while they 

were not saved to the Internet history, they were saved into Internet temporary space. 

However, when asked about Internet temporary space, he began talking about deleted 

Internet history. 
8

that they had been opened up, enlarged or modified by the user of the computer. Also on 

the Apple laptop was a web page banner for the Lolita‟s Kingdom web page, deleted web 

pages to Lolita-type sites and child model sites for child erotica and 505 images of child 

erotica. 

On an Acer brand mini-notebook computer, also taken from defendant‟s home on 

January 4, 2010, were deleted web page entries showing web page names relating to child 

models or tiny girl pictures. 

In the expert‟s opinion, whether the Compaq, the HP or the Apple had a virus 

would be irrelevant because no virus would cause a Google search for the term “nude 

preteen” to be typed in as it was on the HP. Also, the images found on all three of these 

computers were consistent with the types of Google searches that had been done on the 

HP (the user name associated with those searches was Clark), and according to the 

prosecution‟s expert, a virus would not put those images onto a computer. He had never 

seen a virus put child pornography onto a hard drive, including the virus, Trojan.8 He 

conceded that pop-ups, which are advertisements that appear on the computer screen, 

could be caused by a Trojan virus. 

He described a “redirect” as occurring when a computer user is on a website and is 

trying to close the website, but another screen appears, directing the user to another 

location. At times, a computer user clicks on a page he or she thinks he or she is going to 

 

8

 Defendant states that the prosecution expert testified that he found Trojan 

viruses on the Compaq, citing Reporter‟s Transcript page 130. However, at that page, 

when asked if he found them on that computer, he responded, “I said I didn‟t pay any 

attention to the viruses or Trojans, whether or not they were present.” 
9

and is actually taken to another page that has different content. Typically, these pop-ups 

or redirects can be viewed by the computer user and the user has to be on the Internet for 

them to occur. In the expert‟s opinion, pop-ups or redirects are irrelevant to this case 

because some user of the HP had to enter the terms “hot preteen models” and “nude 

preteen.” He had never seen a website redirect to child pornography if the computer user 

was not originally on a child porn site. The expert conceded that in some instances, when 

a computer user is on an adult pornography site, there could be a link taking the user to a 

site with younger people (individuals that look 18 or 19 years old, but could be 14 or 15 

years old). However, he had never seen a link on an adult pornography website to a site 

for infants or early teenagers. There was no evidence that the images he found on the 

Compaq, the HP or the Apple were the result of a computer user going on an adult 

pornography website and getting redirected to a child pornography site. The expert 

opined that one of the ways the images on all three computers got there was by a 

computer user doing Google searches for the terms that had been typed into searches on 

the HP (the user name associated with these was Clark), and the searches could not have 

taken place without the computer user typing in the search terms. He explained that 

when the computer user enters a search on Google, the user gets website names, and if 

the user clicks on one of those names, that website appears on the user‟s screen and the 

thumbnail images on that website are part of what the user views on the website. 

Nothing has to be clicked on the website for the thumbnail images to be seen. Of the 

total 1.6 million images he saw on the three computers, well over one thousand were 

suspected child pornography or child erotica. 
10

The prosecution expert testified that during a Google search, a flash on the screen 

comes up on some websites, and even if the pop-up blocker blocks it, whatever flashed 

on the screen can still record to the hard drive. Several years ago, the expert‟s computer 

began flashing while he was on the Internet and everything on the pages that flashed by 

was saved to the hard drive. 

Every child pornography or child erotica image found in this case was either in the 

unallocated space on the hard drives or in the Internet temporary files, the latter of which 

had been saved by the computer‟s operating system. For images in unallocated space, it 

cannot be determined when they were created, when they were deleted or whether they 

were deleted by the computer operator or the system. Typically, when a web page comes 

up in response to a search, the computer user has to scroll down on the page to view all of 

it, so that images on the bottom of the page may not be viewed by the user unless he or 

she scrolls down. Typically, child pornography is not advertised on the web. It is most 

commonly obtained in peer-to-peer programs. 

The first defense expert opined that of the 248 “suspect” images from the Compaq 

and the HP, most, if not all, were from redirects and had not been clicked on and 

downloaded to either computer. A thumbnail image is saved to a hard drive either by the 

computer user going to the website where the thumbnail image is located, or that website 

popped up, or the computer user was redirected to that website. Based on his training and 

experience, a computer user cannot go to a legitimate website and have a pop-up or 

redirect to child pornography. In order for a thumbnail image to be saved to a hard drive, 

the computer user would have to have gone to the website where the thumbnail image 
11

was located, or the website would have had to have popped-up or the computer user 

would have had to have been redirected to the website. 

The second defense expert testified differently than the first, saying that he has 

seen legitimate sites redirect to child pornography sites. However, once the computer 

user is redirected, the redirected-to-website would be seen on the computer screen. He 

testified that some redirects (the computer user goes on the Internet and is redirected to a 

predetermined website no matter what the user does and as the user tries to get away from 

that website, the user is directed back to it) and some pop-ups (something unexpected 

appears when the computer user is on the Internet) are outside the computer user‟s 

control and the latter may be so fast that the computer user cannot intercept it or see it 

happening. Pop-up providers and redirect websites are constantly changing so they can 

operate freely. Concerning only the images on the Compaq that were dated January 3, 

2010, he testified that most were created within a minute of a particular time and it was 

the same as the modification time and access time, meaning that none had been clicked 

on and viewed. Based on what he said was the small number of suspected child 

pornography and child erotica images relative to the total number of images found (he 

said there were 12,200 which had been modified on January 3, 2010), the small size of 

the former images and the fact that they were created, modified and accessed at the same 

time, he opined that they were pop-ups that appeared on some type of web page or ads or 

thumbnails. Of the 27 that could be traced back to a folder, they were in temporary 

Internet space, which was controlled by the browser, and it did not appear that they had 

been saved by the computer user. It did not appear to him that any had been clicked on or 
12

expanded, however, he could not say whether or not someone had actually viewed them. 

None had been saved to any other folders in the Compaq. All the images on the Compaq 

that he examined were thumbnail size pictures of child erotica, and they could be viewed 

by the computer user while they were on the screen. There was no evidence that the 

Compaq‟s user went to a website containing child pornography and saw the thumbnail 

images. The images could have gotten onto the Compaq‟s hard drive by the website 

loading as an ad, the pop-up blocker could have blocked it and the ad could have been 

saved to the hard drive even though it did not appear on the screen. Concerning Google 

suggestions, he said that it is possible that if the computer user typed into a search the 

word “nude” Google would suggest terms that would lead the user to a child pornography 

website. However, he typed in “little girl” and no such suggestion came up. He testified 

that as to four out of the five or six Google suggestions that had been made, no images 

from the websites referenced by those suggestions had been saved to temporary Internet 

space when he typed a search into Google on a computer and did not click on and open 

any of the suggestions. He then used other computers and was able, with some, to 

duplicate this result, and not able to with others. He could not with a version of Windows 

that was newer than the one defendant had. The same program defendant had could 

duplicate the expert‟s results 8 out of 10 times, but no images from the websites were 

saved. He typed “little” then “girls” into Google and it showed some images from its 

image search capability which appeared below the suggestions, and those images were 

saved to the hard drive, but none of them were pornographic. That same search produced 

results on the screen that the computer user would have had to have scrolled down to in 
13

order to see all of them. The Google suggestions that were saved appeared the same as 

the terms actually typed into the Google search in Internet temporary space. One of the 

five-to-seven viruses on the Compaq was a Trojan, and viruses can cause redirects, but he 

had never seen a virus that dropped child porn onto a computer. He found “a few” 

images of child erotica on the HP9 and none on the Apple. All the images he examined 

on the Compaq and the HP were consistent with pop-ups and redirects. No child 

pornography or child erotica images were found in any of the computer user operated 

space on any of the computers. 

The defendant testified, denying that he had viewed any of the images that had 

been shown to the jury. He denied searching for or viewing any sexually explicit images 

of children or images of children engaging in sexual activity. He denied knowing that 

any web pages he visited were automatically downloaded to his hard drive. He claimed 

the Apple stopped working in early 2009. He admitted using the Compaq on January 3, 

2010, and it worked correctly, but the Internet on it had given him problems. He denied 

doing the searches on the HP under the user name Clark for nude preteen models. He did 

not recall searching the Internet for images of little girls on January 3, 2010. 

ISSUES AND DISCUSSION

1. Statute of Limitations

Defendant contends that the People failed to carry their burden of proof that the 

child pornography and erotica were possessed within the 10 years statute of limitations 

 

9

 The People incorrectly state that he found none. 
14

applicable to violations of section 311.11, subdivision (a). (§ 801.1, subd. (b).) This 

burden is by a preponderance of the evidence. (People v. Castillo (2008) 168 

Cal.App.4th 364, 369.) Prosecution is to commence within 10 years after commission of 

the offense. (§ 801.1, subd. (b).) Prosecution is commenced when an information is 

filed. (§ 804, subd. (a).) The information charging defendant with possession on or 

about January 4, 2010 was filed June 2, 2011. Therefore the People had the burden of 

proving by a preponderance of the evidence that defendant possessed the child 

pornography and erotica after June 2, 2001. Defendant here asserts that the prosecution 

failed to prove that defendant possessed the images in the unallocated spaces after June 2, 

2001 because the prosecution expert testified that he was unable to say when those 

images were created, i.e., placed on the hard drive by the website that contained them 

being visited. However, the People‟s theory was that defendant possessed the child 

pornography and erotica by “having them on his computer” and there was proof, by a 

preponderance of the evidence, that they were on his computer on January 4, 2010. 

Defendant argued to the jury only that he was not aware that they were there—that they 

got there due to pop-ups, redirects, and/or that they had been placed far enough down on 

websites he viewed that he failed to see them because he had not scrolled down that far. 

Therefore, defendant possessed all the child pornography and erotica within the statute of 

limitations period. 

2. Insufficiency of the Evidence

Relying on United States v. Kuchinski (9th Cir. 2006) 469 F. 3d 853 (Kuchinski), 

defendant asserts that there was insufficient evidence to prove that he knew of the 
15

existence of the child pornography and erotica images that were in temporary Internet 

space. In Kuchinski, the defendant “d[id] not argue that he is not responsible for the 

possession of [images of child pornography]” “located in the computer‟s downloaded 

files and . . . in its deleted files.” (Id. at p. 856.) “[W]e have declared that, „[i]n the 

electronic context, a person can receive and possess child pornography without 

downloading it, if he or she seeks it out and exercised dominion and control over it.‟ 

[Citations.] Thus, [defendant] properly concedes that he did knowingly receive and 

possess the . . . images that he downloaded. But [defendant] was charged with [receipt 

and possession of] . . . images, which appeared in his cache files [i.e., Deleted Temporary 

Internet Files]. [¶] . . . [¶] According to the evidence before the district court, when a 

person accesses a web page, his web browser will automatically download that page into 

his Active Temporary Internet Files, so that when the site is revisited the information will 

come up much more quickly than it would have if it had not been stored on the 

computer‟s own hard drive. When the Active Temporary Internet Files get too full, they 

spill excess saved information into the Deleted Temporary Internet Files. All of this goes 

on without any action (or even knowledge) of the computer user. A sophisticated user 

might know all of that, or might even access the files. But, [according to the government 

expert,] „most sophisticated—or unsophisticated users don’t even know [that downloaded

web pages are] on their computer.‟ [¶] . . . „[T]he cache is a “system-protected” area, 

which the operating system tries to prevent users from accessing by displaying a warning 

that access involved an “unsafe” system command.‟ [Citation.] [A computer] user, who 

knows what he is doing, can go forward and get access to the cache files anyway. 
16

[Citation.] In the case at hand, there was no evidence that [defendant] was sophisticated, 

that he tried to get access to the cache files, or that he even knew of the existence of the 

cache files. [¶] There is no question that the child pornography images were found on 

the computer‟s hard drive and that [defendant] possessed the computer itself. Also, there 

is no doubt that he had accessed the web page that had those images somewhere upon it, 

whether he actually saw the images or not. What is in question is whether it makes a 

difference that, as far as this record shows, [defendant] had no knowledge of the images

that were simply in the cache files. It does. [¶] . . . In [United States v.] Romm, 455 F. 

3d [990,] 995-98, [(9th Cir. 2006)] the evidence demonstrated that the defendant knew 

about the cache files and had actually taken steps to access and delete them. On appeal,

he conceded knowledge, and contested dominion and control, but we rejected his 

arguments. [Citation.] In so doing, we opined that „to possess the images in the cache, 

the defendant must, at a minimum, know that the unlawful images are stored on a disk or 

other tangible material in his possession.‟ [Citation.] We relied upon a case wherein the 

Tenth Circuit Court of Appeals had declared that the defendant was properly found guilty 

where he knew that child pornography images would be sent to his „browser cache file 

and thus saved to his hard drive.‟ [Citation.] . . . [¶] . . . [¶] Where a defendant lacks 

knowledge about the cache files, and concomitantly lacks access to and control over 

those files, it is not proper to charge him with possession and control of the child 

pornography images located in those files, without some other indication of dominion 

and control over the images.” (Id. at pp. 856, 861-863, italics added, fns. omitted.)
17

Assuming for purposes of this argument only that Kuchinski is good law and binds 

us, contrary to defendant‟s assertion, its holding does not mean that there was insufficient 

evidence in this case that defendant knew of the existence of the images in the temporary 

Internet files. First, as the Kuchinski court pointed out, there was no evidence in that case 

that the defendant was even aware that the automatically downloaded web pages he had 

viewed were in the cache files of his computer. Moreover, the prosecution expert in 

Kuchinski testified that even most sophisticated computer users do not know that the web 

pages they have accessed have been automatically downloaded to his or her hard drive. 

There was no such evidence in this case, but there was sufficient evidence from which 

this jury could reasonably infer that defendant knew the web pages he was visiting were 

being automatically downloaded to his hard drive. That circumstantial evidence was that 

defendant was a sophisticated computer owner and user, having owned four computers at 

the time of the search of his home, in addition to 18 other media devices. Additionally, 

defendant testified that he had done “lots and lots [of Internet searches,]” that he had 

taken classes on instructional technology, during which he learned how to make and 

present a PowerPoint presentation, how to put together information on a teacher website, 

how to use a Smart Boards in the classroom10 and how to run a projector and that he used 

a computer to do his lesson plans and play a game. He testified that he used computers 

both at work and at home. He conceded that one might have the opinion that he was 

pretty knowledgeable about computers. The prosecutor identified the central issue in this 

 

10

 Defendant taught boys and girls. 
18

case for the jury during her argument as follows, “Did the defendant know that he 

possessed those images?” The jury answered this question in the affirmative and there 

was sufficient evidence to support their implied finding. Kuchinski does not stand for the 

proposition that just because a web page is automatically downloaded to the hard drive by 

the system, it cannot be proven that defendant was aware of this.

Defendant also points out that a decision out of the Third Appellate District 

disagrees with the holding in Kuchinski. In Tecklenburg v. Appellate Division (2009) 169 

Cal.App.4th 1402 (Tecklenburg), the appellate court noted that there was not universal 

acceptance of the holding in Kuchinski. (Tecklenburg at pp. 1416-1417.) The 

Tecklenburg court went on to observe that, “The operative language of section 311.11, 

subdivision (a), provides it is a criminal offense for any person to „knowingly possess[] 

or control[] any . . . computer-generated image that contains or incorporates in any

manner, any film . . . , the production of which involves the use of a person under the age 

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

engaging in or simulating sexual conduct.‟ (Italics added.)” (Id. at p. 1418.) The 

Tecklenburg court held, “By its plain language, section 311.11, subdivision (a), prohibits 

either possession or control of any child pornography . . . [image] . . . then broadly 

describes numerous forms and methods by which such child pornography may be 

distributed, including not just physical storage devices, but any „computer-generated 

image.‟ [Citation.] The statutory language reflects a far-reaching intent by the 

Legislature to cover . . . the new era of Internet use in an effort to reduce the exploitation 

of children. By its plain terms, section 311.11 includes an image of child pornography as
19

it is displayed on a computer screen as an object that can be knowingly possessed or 

controlled. Section 311.11, subdivision (a), is not limited to the knowing possession or 

control of the computer‟s underlying data or files. [¶] We view . . . the language of 

section 311.11, subdivision (a), as having material differences from the federal child 

pornography statute at issue in Kuchinski . . . [T]he federal statute does not make it 

illegal to knowingly possess or control an image of child pornography; only to knowingly 

possess the material containing the image. In the context of computer child pornography, 

it is understandable that the federal courts have focused . . . on the data stored in the 

computer‟s files as that which is illegal under the federal statute to possess. Without 

knowledge of such files, there can be no „knowing‟ possession under the federal statute. 

[¶] . . . [¶] However, the language of section 311.11, subdivision (a), is not so 

limited. . . . [It] makes it directly illegal to knowingly „possess[] or control‟ any „image‟ 

of child pornography. [¶] The evidence here amply supports the jury‟s conclusion that 

defendant did knowingly possess or control images of child pornography. The evidence 

established defendant actively searched for child pornography Web sites, opened such 

Web sites, went past the homepages, clicked through images on at least one site tour, 

displayed multiple images of child pornography from the Web sites on his computer 

screen, in some cases multiple times, and enlarged some of the images from thumbnail 

views. In our view, the T[emporary] I[nternet] F[ile]s . . . evidenced defendant‟s 

knowing possession or control of the images. There was no need for additional evidence 

that defendant was aware of the T[emporary] I[nternet] F[ile]s . . . in order for defendant 
20

to have violated section 311.11, subdivision (a).” (Tecklenburg at pp. 1418-1419, fn. 

omitted.) 

As already explained, we do not need here to reject the holding in Kuchinski in 

favor of the holding in Tecklenburg, as we have concluded that even under the former, 

there was sufficient evidence that defendant knew that the images of child pornography 

or erotica found in the Internet temporary files had been downloaded to his hard drives. 

However, we note that the evidence here tracks the evidence Tecklenburg held was 

sufficient to establish that knowing possession where the computer automatically 

downloads the images to a temporary Internet file in certain important respects, i.e., 

according to the prosecution‟s expert, defendant actively searched the Internet for child 

pornography and erotica and opened such cites (although unlike the defendant in 

Tecklenburg, there was no evidence he went past the homepages or clicked through 

images on a site tour) and he displayed multiple images of child pornography and erotica 

on his computer screen, and in some cases, multiple times, enlarged some of the images 

from thumbnail, although not the images in the temporary Internet files. (Tecklenburg, 

supra, 169 Cal.App.4th at p. 1402.) 

Defendant also asserts that there was insufficient evidence that he knowingly 

possessed or controlled the child pornography or erotica images in the temporary Internet 

space. However, as to the Compaq, the jury could reasonably conclude, based on 

testimony by the prosecution expert, that on two separate dates, defendant viewed the 

computer-generated images of children having sex with adults, which could establish 

defendant‟s intent or knowledge. The jury could also reasonably conclude that defendant 
21

viewed 188 thumbnail images of child erotica, the child pornography banner graphic for 

“Real Preteen” and pornographic/erotica images of three female children all on three 

separate dates, as well as 200 additional images of child erotica. There were Google 

searches on the Compaq for child erotica-type content associated with defendant‟s name, 

a partially downloaded or completely downloaded, then deleted, movie file consistent 

with child pornography and text in the network program including words related to child 

pornography and erotica. On the HP, besides the 64 images of child pornography and 

erotica and the web banner graphic depicting child erotica, which were consistent with 

the images on the Compaq and the Apple, were Google searches under a user name 

associated with defendant for, inter alia, “nude preteen” and “nude preteen models.” In 

the prosecution expert‟s opinion, the images of child pornography and erotica found on 

all three computers were consistent with searches using these terms. Of the 268 child 

pornography and erotica images on the Apple, of particular importance were those that 

had been clicked on and enlarged. Also on the Apple were, inter alia, 505 images of 

child erotica. The sheer volume of child pornography or erotica images, along with the 

Google searches tied to defendant, created sufficient evidence to support the verdict. As 

the prosecutor poignantly asked the jury, why would the same type of images be on three 

of defendant‟s different computers if he did not interface with them? She used the same 

argument to contradict the defense claim that the images were the result of a virus—she 

asserted that it was too much of a coincidence that child pornography and erotica ended 

up on three different computers as a result of viruses. Two of the three computers had 

searches for child pornography or erotica on them. While there was a possibility that 
22

defendant had not viewed these images, the jury was free to believe otherwise, based on 

the other evidence presented.

Next, defendant asserts that absent proof that on January 4, 2010, he “had the 

ability to access, view, manipulate or modify” the images that were on his computer, the 

evidence was insufficient. He relies on a federal decision from the same circuit that gave 

us Kuchinski. (United States v. Flyer (9th Cir. 2011) 633 F.3d 911.) However, there is 

nothing in the jury instructions nor in any case construing section 311.11, subdivision (a) 

containing such a requirement.

3. Section 311.11, subdivision (a) as Void for Vagueness

Defendant contents that he cannot stand convicted of violating section 311.11 

because “[b]ased on the facts presented by the prosecution, [he] could have been 

convicted for possession of child pornography based on nothing more than a record that 

[he] conducted a search for websites related to „hot preteen models.‟ If this is the 

case, . . . 311.11, subdivision (a), prohibits searching for websites (at any time) that may 

contain child pornography even if those websites identified as containing child 

pornography (in response to the search) are never entered. [Section 311.11, subdivision 

(a)] fails to provide adequate notice that such conduct is prohibited and is void for 

vagueness. [¶] . . . [¶] [S]ection 311.11, subdivision (a) fails to provide adequate notice 

that entering a search term for child pornography without entering any child pornography 

websites constitutes criminal behavior.” 

Defendant‟s argument contains several misconceptions. First, section 311.11, 

subdivision (a) is abundantly clear in prohibiting the possession or control of child 
23

pornography or erotica. It does not punish searching for such images if the search does 

not result in the defendant coming into the possession or control of the images. It would 

be like a defendant asking a friend if the friend has any child pornography he could give 

the defendant, but before the friend hands it over, the defendant tells the friend he really 

doesn‟t want to see it. In that case, although the defendant has “searched” for the 

pornography by asking his friend to give him what the friend has, he has not violated 

section 311.11, subdivision (a) because he stopped short of taking possession or control 

of the pornography. Next, the fact that defendant searched for websites using, inter alia, 

“hot preteen models[,]” “nude preteen” and “nude preteen models” was circumstantial 

evidence of his knowledge in possessing or controlling the images of child pornography 

and erotica that were found on his hard drives. Moreover, the fact that these images were 

consistent with those searches created the reasonable inference that the presence of these 

images on his hard drives was due to the searches defendant had conducted for them and 

were not the result, as the defense suggested, of pop-ups, redirects and flashes. Finally, 

as both the prosecution and defense experts testified, those images could not have gotten 

onto defendant‟s hard drives unless defendant (or some other user of his computer) 

visited the website that contained those images. Therefore, we do not understand 

defendant‟s assertion that “those websites identified as containing child pornography (in 

response to the search) were never entered. [¶] . . . [¶] [S]ection 311.11, [subdivision] 

(a) fails to provide adequate notice that entering a search term for child pornography 

without entering any child pornography websites constitutes criminal behavior.” 
24

4. Failure to Give a Unanimity Instruction

Citing Tecklenburg, defendant asserts that a violation of section 311.11, 

subdivision (a) occurs when a person “use[s] his computer to locate, access, and view” 

child pornography. While Tecklenberg held that “311.11 includes an image of child 

pornography as it is displayed on a computer screen as an object that can be knowingly 

possessed or controlled” (Tecklenberg, supra, 169 Cal.App.4th at p. 1418) it did not hold, 

nor was it presented with the issue, that that section is violated only by the act of locating, 

accessing and viewing child pornography. In fact, this holding in Tecklenberg addresses 

the knowledge requirement of section 311.11, subdivision (a), not when the crime occurs. 

Based on this faulty premise, i.e., that defendant violated section 311.11, subdivision (a) 

only when he located, accessed and viewed the images, defendant asserts that because the 

jury was not given a unanimity instruction, it was free to convict him of the crime while 

individual jurors did not agree on which images he possessed or controlled. He contends 

that he was prejudiced by this because the jury may have convicted him based solely on 

the images that were in unallocated space, whose date of location, access and view might 

have fallen outside the 10 year statute of limitations. As we explained in rejecting this 

argument previously, the prosecution‟s theory was that defendant violated section 311.11, 

subdivision (a) on January 4, 2010, when his computers had all the images of child 

pornography and erotica on them testified to by the prosecution‟s expert. Thus, the 

prosecution made the essential election that removed from this case the need to give a 

unanimity instruction. For his part, defendant denied knowingly possessing or 

controlling any of these images. It was an all or nothing proposition. Thus, there was no 
25

reason for the jurors to treat any one or more images any differently that the others and 

no need to direct them to chose and agree upon particular images, defendant‟s possession 

and control of which constituted the crime. Moreover, as a matter of law, possession of 

multiple images constitutes one violation of section 311.11, subdivision (a). (People v. 

Manfredi (2008) 169 Cal.App.4th 622, 624; People v. Hertzig (2007) 156 Cal.App.4th 

398, 401, 402.)

DISPOSITION

The trial court is directed to amend the minutes of the sentencing hearing to reflect 

that defendant was ordered to reimburse supervision fees at the rate of $15 per month 

payable through General Collections, rather than $26, as the minutes currently state, and 

that terms 27-30 have been stricken, rather than that they were imposed, as the minutes 

currently state. In all other respects, the judgment is affirmed.

CERTIFIED FOR PUBLICATION

RAMIREZ

P. J.

We concur:

KING

J.

CODRINGTON

J.