P. v. Cabrera
Defendant Silvestre Cabrera forced his minor daughter, M.M., to download pornographic videos on a computer and watch them with him. He was initially charged with the misdemeanor offense of annoying or molesting a child (Pen. Code, § 647.6, subd. (a), hereafter section 647.6),[1] to which he pled guilty. When the police later discovered that the computer hard drive contained files depicting minors engaged in sex acts, defendant was charged with felony possession of matter depicting a minor engaging in sexual conduct (§ 311.11, subd. (a), hereafter section 311.11). Defendant moved to dismiss the section 311.11 charge under section 654 and Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett), contending that the charge arose from the same course of conduct as the section 647.6 conviction. The trial court denied the motion, concluding that the prosecution had acted with due diligence in discovering the existence of the child pornography on the computer. Later, in a bench trial, defendant was convicted of violating section 311.11. He was sentenced to three years in state prison and ordered to register as sex offender under section 290.
On appeal from the judgment of conviction, defendant contends that the trial court erred in denying his motion to dismiss. We agree. Substantial evidence does not support the trial court’s finding of due diligence, and no exception to the bar of section 654 and Kellett applies. Therefore, we reverse the judgment.
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