People v. Petrovic

Filed 4/17/14 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246250
(Super. Ct. No. F458594)
Plaintiff and Respondent, (San Luis Obispo County)

v. ORDER MODIFYING OPINION AND
DENYING REHEARING
ZORAN PETROVIC, [NO CHANGE IN JUDGMENT]

Defendant and Appellant.

THE COURT:
It is ordered that the opinion filed herein on March 26, 2014, be modified as follows:
1. On page 4, the first sentence of the first paragraph is changed to read:
Petrovic concedes the evidence shows he viewed child pornography on the
Internet, but claims there is no evidence he knowingly possessed or controlled the
images found on his computer.
2. On page 5, in the sentence beginning on line 6 in the second full paragraph, delete the
words "The People acknowledge that" so that the sentence reads:
This problematic dictum could be read to mean the viewing of child pornography
is not a criminal offense under section 311.11.

There is no change in the judgment.
Appellant's petition for rehearing in denied.
Filed 3/26/14 (unmodified version)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246250
(Super. Ct. No. F458594)
Plaintiff and Respondent, (San Luis Obispo County)

v.

ZORAN PETROVIC,

Defendant and Appellant.

Defendant Zoran Petrovic appeals a judgment following his felony
conviction of possession or control of child pornography with a prior conviction for child
molestation. (Pen. Code, § 311.11, subd. (b).)1
Petrovic relies on a dictum in Tecklenburg v. Appellate Division (2009) 169
Cal.App.4th 1402 to argue that section 311.11 is to be interpreted the same way that
United States v. Kuchinski (9th Cir. 2006) 469 F.3d 853 interprets a federal child
pornography statute. (18 U.S.C. § 2252A(a)(5)(B).) We do not do so because the
federal and state statutes are different and subject to different interpretations. However
tantalizing, a dictum is not a holding. We affirm.
FACTS
Petrovic was arrested for a parole violation because he was loitering in a
park. He suffered a prior conviction for committing a lewd act on a child. A parole

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All statutory references are to the Penal Code unless otherwise stated.
condition prohibited him from "possessing or having access to any explicit pictures,
video tapes or movies" that showed children engaged "in sexual acts."
Petrovic's parole agent told him she would conduct a forensic review of his
computer to determine his compliance with parole conditions. Petrovic said, "You'll find
nothing on it," and "I am the only one who uses it." The parole agent asked if he uses the
Internet. He responded, "I do not have access." The forensic review revealed that he had
viewed child pornography on his computer.
At trial, the prosecution and defense stipulated to the introduction of a
forensic report by Jeff Joynt, a computer expert who had examined Petrovic's computer.
Joynt found "19 videos in a temporary folder" on the computer. He watched "several [of]
these videos" and determined "they contain child pornography." Joynt said Petrovic
"used sophisticate[d] means to hide his Internet history" and used "software programs to
delete and hide files." Petrovic had a "virus protection program," but there was no
evidence of any viruses on his computer.
Joynt said, "The video files [he] located in the Temp File were likely left
there by mistake when [Petrovic] was transferring them to another location." The
evidence of child pornographic material was discovered in "temporary Internet files"
(TIF). Joynt said, "It is my belief these temporary files were created when the suspect
was accessing the Internet. . . . [Petrovic] neglected to delete the temporary file or did
not even know it was created so he could delete it." Joynt determined that on one day
Petrovic went to the same child pornography Web site "on three separate occasions."
In a parole report admitted into evidence, Petrovic's parole agent said she
reviewed the videos "and observed several that displayed young girls exposing their
genitals, a young girl performing oral copulation, and a male adult vaginally penetrating
what appears to be an infant."
Petrovic's trial counsel stipulated that there were three videos "that would
be considered prohibitive material under [section] 311.11." But he claimed the images
"were located in a temporary file as opposed to something that was saved directly on the

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hard drive." Petrovic argues he did not know that his computer had the capability to save
files in this fashion.
The trial court found Petrovic violated the statute because: Petrovic's past
history "strongly indicates an interest in prepubescent children"; Petrovic admitted it was
his computer and that no other person had access to it; and he had a "unique" computer
"deletion program" to erase his Internet browser history. The court said, "I believe it is a
reasonable inference that he said you won't find anything because he didn't think they'd
be able to, not because he didn't know it was there."
DISCUSSION
Section 311.11
Petrovic contends there is no evidence to support a finding that he
knowingly possessed or controlled child pornography on his computer. He claims the
evidence shows only that he used his computer to visit child pornography Web sites. He
argues such conduct is not a crime under section 311.11.
Section 311.11, subdivision (a) provides, in relevant part, "Every person
who knowingly possesses or controls any matter, representation of information, data, or
image, including, but not limited to, any film, filmstrip, photograph, negative, slide,
photocopy, videotape, video laser disc, computer hardware, computer software, computer
floppy disc, data storage media, CD-ROM, or computer-generated equipment or any
other computer-generated image 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 . . . ." (Italics added.)
Section 311.11 contains broad language to achieve a remedial purpose.
"The statutory language reflects a far-reaching intent by the Legislature to cover both
traditional means of displaying child pornography and the new era of Internet use in an
effort to reduce the exploitation of children." (Tecklenburg v. Appellate Division, supra,
169 Cal.App.4th at p. 1418.)

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 Petrovic concedes he viewed child pornography on the Internet, but claims
there is no evidence he knowingly possessed or controlled the images found on his
computer. He claims the data found by law enforcement came from TIF's automatically
saved by the computer's "cache" system when he went to Web sites.
"Every time a Web page is accessed on the Internet by the computer, the
computer automatically saves the material, without any affirmative action by the
computer user, in a TIF." (Tecklenburg v. Appellate Division, supra, 169 Cal.App.4th at
p. 1407.) A cache is a computer "storage mechanism designed to speed up the loading of
Internet displays." (Id. at p. 1407, fn. 7.) "When a computer user views a webpage, the
web browser stores a copy of the page on the computer's hard drive in a folder or
directory. That folder is known as the cache, and the individual files within the cache are
known as [TIF]." (Ibid.)
Kuchinski
Petrovic suggests we apply the standard Kuchinski used in its interpretation
of title 18 of the United States Code section 2252A(a)(5)(B). (United States v. Kuchinski,
supra, 469 F.3d 853.) If he did not know that the cache automatically stores visits to
Web sites in a TIF, he could have a defense under the federal act. In Kuchinski, the
appellate court wrote, "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. To do so turns
abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion
and control." (Id. at p. 863.)
In response to an order of the California Supreme Court that it consider
Kuchinski, the Tecklenburg court concluded that the Kuchinski standard does not apply to
section 311.11 convictions. The federal and state child pornography statues have a
similar underlying goal of protecting children. But the Tecklenburg court concluded the
California statute covers a broader scope of conduct than its federal counterpart.

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Consequently, permitted conduct under that federal statute is prohibited conduct under
section 311.11.
The Tecklenburg court said, "[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." (Tecklenburg v. Appellate Division, supra,
169 Cal.App.4th at p. 1418, italics added.) "[F]ederal courts have focused, therefore, on
the data stored in the computer's files as that which is illegal under the federal statute to
possess." (Id. at p. 1419.) "Without knowledge of such files, there can be no 'knowing'
possession under the federal statute." (Ibid.) But "section 311.11, subdivision (a), is not
so limited." (Ibid.) It "makes it directly illegal to knowingly 'possess[] or control' any
'image' of child pornography." (Ibid.) We agree that Kuchinski does not apply here.
Viewing Child Pornography and Section 311.11
Petrovic contends his act of viewing child pornography on the Internet is
not prohibited by section 311.11, subdivision (a). He relies on language from
Tecklenburg: "Although a few states have prohibited the viewing of child pornography,
[fn. omitted] we do not interpret section 311.11, subdivision (a), as doing so."
(Tecklenburg v. Appellate Division, supra, 169 Cal.App.4th at p. 1419, italics added.)
The People acknowledge that this problematic dictum could be read to mean the viewing
of child pornography is not a criminal offense under section 311.11. If this were so,
Tecklenburg's judgment of conviction would not have been affirmed. We interpret this
dictum to mean that those who unintentionally view child pornography or unknowingly
download it on their computers are not in violation of section 311.11.
Petrovic claims the conflicting language in Tecklenburg could lead to
arbitrary results. He argues there is danger that trial courts could rely on it and rule that
"some viewing of child pornography is allowed--the more casual variety, . . . while others
are not, with a murkily drawn line somehow having to do with the energy that led to the
activity." But Tecklenburg does not allow computer users to search for child

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pornography on the Internet. That would undermine the goal of the statute, which is to
protect children from sexual exploitation.
Tecklenburg gave examples of conduct that are violative of section 311.11.
A computer user contravenes the statute by: 1) "actively downloading and saving [child
pornography] to his or her computer," 2) "printing it," or 3) "e-mailing it." (Tecklenburg
v. Appellate Division, supra, 169 Cal.App.4th at p. 1419, fn. 16.) In Tecklenburg, the
defendant repeatedly searched the Internet for child pornography and he viewed those
pornographic images on his computers. The court noted he was "manipulating the
display of such images on his computer screen" and "enlarged some of the images from
thumbnail views." (Ibid.) Because he "knowingly possessed or controlled images of
child pornography" on his computer, he violated the statute. (Ibid.) There "was no need
for additional evidence that defendant was aware of the TIF's or cache in order for
defendant to have violated section 311.11, subdivision (a)." (Ibid.)
The Tecklenburg holding is consistent with the statute. "By its plain terms,
section 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." (Tecklenburg v.
Appellate Division, supra, 169 Cal.App.4th at p. 1418, italics added.) "We conclude
defendant here knowingly possessed or controlled images of child pornography in
violation of section 311.11, subdivision (a), because the evidence . . . demonstrates
defendant intentionally used his home and work computers to find, access, and peruse
through quantities of child pornography, manipulating the display of such images on his
computer screen." (Id. at p. 1419, italics added.)
The People cite People v. Kent (2010) 910 N.Y.S.2d 78, a New York
Supreme Court Appellate Division opinion, which cites Tecklenburg and discusses the
California statute. The People note that it states the standard applicable to this case. It
also provides a clear standard to differentiate between the type of viewing that is exempt
and the type that is prohibited. The Kent court said, "By accessing the Web sites, the
defendant has the ability to manipulate, download, copy, print, save, or e-mail the

6
images; it is not important whether he chooses to engage in these additional activities
'because intentionally seeking out child pornography and purposefully making it appear
on the computer screen--for however long the defendant elects to view the image--itself
constitutes knowing control . . . .'" (Id. at p. 88, italics added.) "The consistent thread in
these cases is the need to distinguish inadvertent or unintentional acquisition or
possession of the offensive material from knowing or intentional procurement and
possession . . . ." (Ibid., italics added.) "'The relevant inquiry thus becomes whether the
defendant knowingly possessed the images, in that he exerted some control over them,
. . . or whether the presence of the images on his computer was merely inadvertent. This
inquiry is a question of fact.'" (Id. at p. 89.)
Substantial Evidence
Petrovic contends there is no substantial evidence to support the judgment.
"The role of an appellate court in reviewing the sufficiency of the evidence
is limited." (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We review the record in the
light "'most favorable to the judgment.'" (Ibid.) We do not weigh the evidence or decide
the credibility of the witnesses. (People v. Belcher (1961) 189 Cal.App.2d 404, 407.)
But substantial evidence to support a criminal conviction must be "reasonable, credible,
and of solid value." (People v. Clark (2011) 52 Cal.4th 856, 942.) "'[M]ere speculation
cannot support a conviction.'" (People v. Bohana (2000) 84 Cal.App.4th 360, 368.)
Petrovic contends "there was no evidence of any unusually deliberate sort
of control of the computer beyond that which is inherent to getting any images onto a
screen." We agree that Petrovic's conduct was not identical to the actions of the
Tecklenburg defendant. Here there is no evidence that Petrovic enlarged images on his
computer screen.
But there is sufficient evidence for the trial court to reasonably infer that
Petrovic had "intentionally used his home" computer "to find, access, and peruse through
quantities of child pornography" and to deliberately display such images on his computer
screen. (Tecklenburg v. Appellate Division, supra, 169 Cal.App.4th at p. 1419.) Joynt's

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report shows that Petrovic repeatedly visited child pornography Web sites. Petrovic's
parole conditions prohibited him from viewing that material. He told his parole agent
that he lacked access to the Internet. This false statement is indicative of his
consciousness of guilt. At trial, Petrovic stipulated that three videos were "prohibited
material under [section] 311.11." Petrovic has made no showing that his case involves
the "inadvertent or unintentional acquisition or possession of the offensive material."
(People v. Kent, supra, 910 N.Y.S.2d at p. 88.) Moreover, the trial court could find from
the evidence that Petrovic had knowledge of and access to the TIF's. Joynt said that
"[t]he video files [he] located in the Temp File were likely left there by mistake when
[Petrovic] was transferring them to another location." (Italics added.) This is probative
evidence that Petrovic used sophisticated techniques to conceal his visits to Web sites.
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

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 Barry T. LaBarbera, Judge

Superior Court County of San Luis Obispo

______________________________

John Derrick, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C.
Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney
General, for Plaintiff and Respondent.

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