In the supreme court of california



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2. Child Pornography


The prosecutor also sought to introduce evidence of the child pornography found on the computer. Defendant objected to all of this evidence but also, more specifically, argued that the pornographic materials themselves were unduly prejudicial. He offered to stipulate that what was found on the computer was, in fact, child pornography. Because of this offer, the court found that “the prejudicial effect from the inflammatory nature of the photographs is such that it outweighs the probative value . . . .” It excluded the photographs themselves but permitted the witness to describe what he found on the computer. Accordingly, the jury heard the evidence summarized in the factual recitation in part I.A.1.b., ante.

Defendant contends the court erred in permitting even this limited evidence that he possessed child pornography. We disagree. Evidence that defendant possessed child pornography, and that the day before the murder he printed out a story involving an adult male having sex with young children, was probative of defendant’s intent to commit lewd acts on the young murder victim in this case. The court took steps to minimize any prejudicial effect by excluding the pornographic materials themselves and only permitting a witness to describe those materials.

In People v. Memro (1995) 11 Cal.4th 786, 864, the trial court admitted magazines and photographs containing “sexually explicit stories, photographs and drawing of males ranging in age from prepubescent to young adult.” We found no abuse of discretion in admitting the evidence because “the photographs were admissible to show defendant’s intent to molest a young boy in violation of section 288 [committing a lewd and lascivious act].” (Ibid.) We explained that “the photographs, presented in the context of defendant’s possession of them, yielded evidence from which the jury could infer that he had a sexual attraction to young boys and intended to act on that attraction.” (Id. at p. 865; see also People v. Page (2008) 44 Cal.4th 1, 40.) Similarly, we find no abuse of discretion here.




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