[00:00:00] Speaker 04: on 24-8070, United States v. Griffin, Mr. Rashabot. [00:00:07] Speaker 04: Pronounce your name for me, I'm sorry. [00:00:10] Speaker 04: Rashabot. [00:00:11] Speaker 04: Rashabot, okay. [00:00:15] Speaker 02: May it please the court, Jake Rashabot for the appellant, Mr. Griffin. [00:00:19] Speaker 02: Section 2252A imposes a 10-year mandatory minimum if the defendant has a prior conviction for a state offense relating to possession of child pornography. [00:00:28] Speaker 02: Under Bennett, the offense need not be a perfect match for the federal definition. [00:00:32] Speaker 02: However, this court still looks to the least culpable conduct under the statute to determine whether it's an offense categorically relating to the federal definition of child pornography. [00:00:43] Speaker 02: Under federal law, images must depict sexually explicit conduct, which at a minimum requires lascivious exhibition of the anus, genitals, or pubic area. [00:00:53] Speaker 02: The California statute, on the other hand, [00:00:55] Speaker 02: applies to images that are decidedly not pornographic, images that appear to be wholly innocent. [00:01:02] Speaker 02: That's because the statute applies to any physical touching, including dancing or hugging, so long as the defendant had a lewd state of mind. [00:01:11] Speaker 02: Accordingly, it is not an offense categorically relating to child pornography, and this court should reverse the application of the mandatory minimum sentence. [00:01:19] Speaker 00: What do we do with the United States versus Bennett? [00:01:24] Speaker 02: Well, this court is bound by United States versus Bennett and it is, which said that [00:01:30] Speaker 02: This court does apply the categorical approach, but I'm not arguing that even the slightest bit of over-breadth in the California statute as compared to the federal definition is enough to make this not related to child pornography. [00:01:47] Speaker 02: I'm saying the California statute. [00:01:49] Speaker 00: Well, Bennett also said that the enhancement doesn't limit pornography by linking it to the federal definition. [00:02:00] Speaker 00: Right. [00:02:03] Speaker 02: My understanding of Bennett is that that's a quote. [00:02:07] Speaker 00: I just read it from Bennett. [00:02:09] Speaker 02: I understand. [00:02:10] Speaker 02: But I still believe you compare to even though there has to be there can be some overbreath with the federal definition of child pornography. [00:02:21] Speaker 02: The statute, when it says child pornography, [00:02:25] Speaker 02: the federal definition necessarily applies there because the federal definition of child pornography appears in the same chapter. [00:02:35] Speaker 02: So while it doesn't have to directly mirror or follow the state statute, it doesn't have to be a categorical match for the federal definition. [00:02:44] Speaker 02: It still has to categorically relate to the federal definition of child pornography. [00:02:49] Speaker 02: So relating to expands what is [00:02:56] Speaker 02: what the state statute can prohibit beyond the federal definition of child pornography, but the federal definition is still sort of providing that sort of original comparison, the comparison that you do. [00:03:09] Speaker 02: And here, the California statute, even if we're not comparing it to the federal definition of child pornography, even if there is no federal definition of child pornography, the California statute goes so far beyond [00:03:25] Speaker 02: what anyone would consider to be pornography. [00:03:32] Speaker 02: That's because it incorporates, so it applies to depictions of any act under another California statute, 288, [00:03:44] Speaker 02: And the California Supreme Court has held that Section 288 is incredibly broad and amorphous. [00:03:51] Speaker 02: It applies to any form of physical contact with any part of the body, so long as the person doing the touching had the subjective lewd intent. [00:04:02] Speaker 03: Can you compare for me the Colorado statute in Bennett with the [00:04:09] Speaker 03: California statute here, does the Colorado statute require nudity or images of the genitals or breasts? [00:04:26] Speaker 03: Does it require more explicit images than the California statute? [00:04:31] Speaker 03: If so, just tell me what the differences are. [00:04:33] Speaker 02: much more so. [00:04:34] Speaker 02: So the Colorado statute at issue in Bennett was only overbroad as compared to the federal definition because it included the lascivious display of breasts as opposed to just the anus or genitalia. [00:04:47] Speaker 02: And it also applied to where a child was observing explicit sexual conduct. [00:04:55] Speaker 02: So this court still said that even that overbreath is not enough. [00:05:00] Speaker 02: It still is an offense relating to child pornography because the nature of the offense [00:05:03] Speaker 02: is still material depicting a child participating in explicit sexual conduct. [00:05:09] Speaker 02: So that really is the core feature of child pornography under any definition. [00:05:15] Speaker 02: It has to involve a child, and the images have to be pornographic. [00:05:22] Speaker 02: Under the California statute, Mr. Griffin was convicted under [00:05:25] Speaker 02: There is no requirement of any pornographic, any sexually explicit. [00:05:33] Speaker 02: It doesn't even have to have the suggestion of of sexuality. [00:05:40] Speaker 02: So, for example, under federal law, we look to the dose factors. [00:05:46] Speaker 02: to determine whether something is objectively pornographic, that whether it actually is child pornography. [00:05:54] Speaker 02: And here, the California statute applies where none of those factors do. [00:05:58] Speaker 02: So where there's no depiction of genitalia, let alone that it's the specific focus, where the setting is not sexually suggestive, where the minor is not depicted in any unnatural prose, [00:06:10] Speaker 02: pose or inappropriate attire, they're fully clothed, there's not even a suggestion of coyness or willingness to engage in sexual activity, and the visual depiction isn't designed to elicit a sexual response. [00:06:23] Speaker 02: So even wholly [00:06:25] Speaker 02: innocent appearing photographs can be the basis of a conviction under the Colorado, under the California statute. [00:06:34] Speaker 02: And therefore it doesn't categorically relate to child pornography. [00:06:38] Speaker 02: Does the California statute have a title? [00:06:43] Speaker 04: It's such and such and then what's, is there some language after the section number? [00:06:48] Speaker 02: I'm sure it does. [00:06:49] Speaker 02: It doesn't say child pornography. [00:06:52] Speaker 02: Um, [00:06:53] Speaker 02: Off the top of my head, I'm not sure what it is. [00:06:56] Speaker 00: It looks like it says certain activities relating to material, constant tubing, or containing child pornography. [00:07:05] Speaker 02: I apologize. [00:07:06] Speaker 00: That's from 2252A. [00:07:12] Speaker 04: But even then, I mean, as I as I said, you said what it covers, no one would consider tele pornography. [00:07:19] Speaker 04: I probably wouldn't. [00:07:20] Speaker 04: But California is a big section of this country, and that's what their legislature called it. [00:07:27] Speaker 02: Well, I mean, as this court is. [00:07:30] Speaker 02: held numerous times, the title of the statue can be relevant, but it's certainly not dispositive and it's never dispositive. [00:07:40] Speaker 04: Yes, but your statement was no one would consider this child pornography. [00:07:46] Speaker 02: I think no layperson would. [00:07:51] Speaker 04: Just legislators. [00:07:53] Speaker 04: You have impugned the California legislature, but that's fair game. [00:07:59] Speaker 02: Well, so for example, though, I mean, as I pointed out in the reply brief, I mean, Texas considers theft of a vending machine to be burglary. [00:08:07] Speaker 02: And notwithstanding that, I would still just say as a general matter, I don't think anybody, and I guess maybe I'm only speaking of lay people here, would consider robbing or would consider taking a candy bar that's dangling to be burglary. [00:08:20] Speaker 02: It just wouldn't occur to anybody. [00:08:21] Speaker 02: And so the California statute, I mean, the sort of defining feature of pornography to borrow from Justice Stewart, you know when you see it. [00:08:33] Speaker 02: And there is that's [00:08:36] Speaker 02: What, pornography might be hard to define, but it's not hard when you're actually looking at it. [00:08:42] Speaker 02: And the California statue applies to images that a person looking at it could have no idea that it is quote unquote, pornography. [00:08:53] Speaker 00: Well, I guess you somehow have to know what's in the head of the adult, right? [00:09:00] Speaker 00: In the picture. [00:09:02] Speaker 02: Exactly. [00:09:03] Speaker 02: Which, you know, that in order to be convicted, you do have to know. [00:09:08] Speaker 02: But the point is that it's not it is not child. [00:09:11] Speaker 02: It is not pornography. [00:09:12] Speaker 02: There's nothing pornographic about the image. [00:09:14] Speaker 02: It's unlawful because it depicts a crime, but it is not under any [00:09:21] Speaker 02: reasonable understanding of what pornography is, pornographic. [00:09:27] Speaker 00: Judge Hartz is enjoying too much any criticism of the California legislature. [00:09:36] Speaker 02: Um, and it really is just the product of the fact that how the statute was written, that it includes the, the, you know, the quote unquote child pornography statute includes, uh, depictions of, of lewd and lascivious acts. [00:09:47] Speaker 02: Um, it's just that then the California Supreme court went on to define that separate offense in this incredibly broad way that applies to, uh, any touching, uh, so long as the subjective intent of the person had a lewd intent. [00:10:03] Speaker 02: So originally courts had interpreted it. [00:10:04] Speaker 02: or several had as requiring them to be objectively lewd. [00:10:10] Speaker 02: And if the requirement, if the statute did require the touching to be objectively lewd, then presumably that would sort of [00:10:21] Speaker 02: then a picture of that objectively lewd act could be considered child pornography. [00:10:26] Speaker 02: But where the lewdness exists only in one person's head, the image of that is not pornographic. [00:10:43] Speaker 04: You still have some time. [00:10:45] Speaker 02: I don't see. [00:10:47] Speaker 02: If there are no further questions, I would reserve the remaining of time I have for rebuttal. [00:10:53] Speaker 04: No further questions on the panel. [00:10:55] Speaker 04: It's not OK. [00:10:57] Speaker 04: Thank you. [00:10:58] Speaker 04: Mr. Griswold, your turn. [00:11:01] Speaker 01: Good morning. [00:11:01] Speaker 01: I think it's still morning. [00:11:02] Speaker 01: Yes. [00:11:03] Speaker 01: And may it please the court, Seth Griswold, representing the United States on this matter. [00:11:08] Speaker 01: And I'm here to tell the court why the district court was correct in this matter. [00:11:13] Speaker 01: when it ruled that the California child pornography statute undeniably relates to the federal definition and this court should have little difficulty deciding that it is a predicate felony under 2252 AB2 and the defendant properly faced the 10-year mandatory minimum. [00:11:32] Speaker 01: The defendant has argued that the district court erred and that 311-11 is overbroad when you get to the least egregious conduct, the lewd and lascivious definition [00:11:42] Speaker 01: But their argument, as just stated here today, hinges on a mischaracterization of what the California child pornography statute requires. [00:11:51] Speaker 01: As stated here, they repeatedly argue that there's only two requirements for an image to satisfy the child pornography statute, that being that it, one, depicts any physical contact with the child, and two, depicts subjective lewd intent. [00:12:08] Speaker 01: They argue that it's [00:12:09] Speaker 01: can include decidedly not pornographic images, that it can include wholly innocent images, but that is not the case. [00:12:17] Speaker 01: That is what is required for a violation of Section 288, a lewd or lascivious act. [00:12:25] Speaker 01: That definition is then incorporated into the child pornography statute under 31111, but to be convicted under 31111, [00:12:34] Speaker 01: It still requires that the defendant knew what he possessed depicted a minor engaged in sexual conduct and that's the very important distinction here. [00:12:44] Speaker 01: As stated in Chavez-Sola cited in my brief from the Ninth Circuit when they were doing the categorical approach for this, [00:12:52] Speaker 01: and albeit that was for a little different statute comparison, but they quote state, both the federal and state statutes require knowing possession, including knowledge that the pornography depicts a minor engaged in sexual conduct. [00:13:08] Speaker 01: And under 31111, it quote says, knowing that the minor depicts a person under 18 years of age personally engaging in or simulating sexual conduct. [00:13:19] Speaker 01: Reading that, and if we have a third party that possesses the image, the image itself must depict overtly sexual conduct. [00:13:27] Speaker 01: A third party possessing it must be able to know that it depicts that, and the state would have to prove beyond a reasonable doubt that the person knew that they possessed an image of a minor engaged in sexual conduct. [00:13:39] Speaker 01: And this is what then relates it to the DOS factors in the federal definition, the one that relates. [00:13:47] Speaker 03: The 311 [00:13:50] Speaker 03: In the course it says that it criminalizes any lewd or lascivious sexual act as defined in section 288. [00:14:04] Speaker 03: So doesn't it bring in anything that could be considered a crime under section 288? [00:14:13] Speaker 01: It does, Your Honour, but then that is the definition of the sexual conduct, but then the person, the image still must, the person possessing it to be found guilty, there's a further element that they must know that the pornography depicts a minor engaged in sexual conduct. [00:14:32] Speaker 00: That's not in the statute, is it? [00:14:36] Speaker 01: Yes, it is, Your Honor. [00:14:37] Speaker 01: If you look at 311.11 subsection A, I quote, knowing that the matter depicts a person under 18 years of age personally engaging in or simulating sexual conduct. [00:14:48] Speaker 01: And that is the key here that makes it so that we're not just talking about California and they're just letting anything be child pornography because they want to criminalize everything. [00:15:00] Speaker 01: No, it still is child pornography. [00:15:03] Speaker 01: And that's what I wanted to get to the analogies that are discussed by the defendant where he talks about just rubbing somebody's back could be [00:15:12] Speaker 01: lewd and lascivious acts, so long as they had the... Where did you read the intent? [00:15:17] Speaker 03: Was that in 311.4A? [00:15:20] Speaker 01: No, Your Honor, it's in 311.11 subsection A. Okay. [00:15:29] Speaker 00: What about people versus Martinez from the California Supreme Court, where it talks about it could have the outward appearance of innocence? [00:15:39] Speaker 01: Yes, Your Honor. [00:15:40] Speaker 01: And so that case, though, is only discussing a violation of California Statute 288, which is a lewd or lascivious conduct. [00:15:52] Speaker 01: And that's where this is getting a little nuanced because we are talking about using that definition within the discussion of a child pornography possession of an image of that act. [00:16:05] Speaker 01: But for a defendant to be convicted of possession of child pornography under the California statute, they must then know that it depicts sexual conduct. [00:16:17] Speaker 01: And so that I think the perfect analogy is talking about these somebody rubbing a back and they could be convicted of 288 if they had the subjective lewd [00:16:28] Speaker 01: intent, but they could not be convicted. [00:16:31] Speaker 01: A third party possessing an image of somebody rubbing somebody's minor's back could not be convicted of subsection 31111 because they couldn't know that that depicts a minor engaged in sexual conduct. [00:16:46] Speaker 01: The only way I could think of that is when we're more talking about when we look at subjective intent for purposes of a 2251 violation production of child pornography where [00:16:56] Speaker 01: Maybe if that person was somehow involved in the making of the image and they could know what the intent of the person was doing and then they had the intent. [00:17:06] Speaker 01: That's the only way this could even possibly be prosecuted under the California state statute. [00:17:12] Speaker 01: And I think it's important to take a step back. [00:17:15] Speaker 01: You know, everybody agrees. [00:17:16] Speaker 01: I think that we're talking about the categorical approach, not the modified categorical approach. [00:17:22] Speaker 01: So we can't consider it was actual child pornography he possessed. [00:17:25] Speaker 01: We have to look at the categorical approach with this broadening relating to language. [00:17:32] Speaker 01: But when we do the categorical approach, the court still looks at the most minimal least egregious conduct that has a realistic probability of being prosecuted under the statute. [00:17:44] Speaker 01: So we can do these hypotheticals, but it still requires a realistic probability that it'd be prosecuted. [00:17:50] Speaker 01: And even further, I think if we want to go down the endless hypothetical rabbit holes, [00:17:55] Speaker 01: The state still has to prove they knew it was sexual conduct, and thus it is very analogous to the federal definition. [00:18:05] Speaker 01: And that's why I think when you read Reinhart in the Ninth Circuit, they say it is overbroad because it allows for the exhibition of any part of the body, not just anus, genitalia, or pubic area. [00:18:21] Speaker 01: And again, they differentiate themselves from the 10th Circuit because they take a different approach and do not read the relating to to broaden the categorical approach because the definitions in the same chapter. [00:18:32] Speaker 01: However, they did that. [00:18:36] Speaker 01: So I think that's what's important here. [00:18:38] Speaker 01: And when you look to Bennett, which this court is bound by relating to does have a broadening effect, as Judge Hugh pointed out. [00:18:47] Speaker 01: The enhancement statute does not limit child pornography by linking it to the federal definition, and Congress chose this expansive term to ensure that individuals with a prior conviction bearing some relation to sexual abuse or abusive conduct involving a minor or child pornography receive the enhanced minimum and mandatory sentences. [00:19:14] Speaker 01: And relating to is a broadening language. [00:19:16] Speaker 01: It then incorporates anything that stands in relation to, pertains to, has a connection to. [00:19:23] Speaker 01: And then Judge Temkovich, when you brought up the Colorado statute, the similarities, the United States, they're very similar, the differences between the California versus federal and the Colorado versus federal. [00:19:39] Speaker 01: The Colorado allowed any [00:19:41] Speaker 01: images that contain breasts but not genitals, and also just a child observing but not engaging sexually explicit conduct. [00:19:50] Speaker 01: And Congress, Bennett found Congress characteristically employs this to reach all these more broader things. [00:19:57] Speaker 01: What's also important is Bennett isn't even the line. [00:20:00] Speaker 01: They never say that this is the lowest level or the most removed we can get. [00:20:05] Speaker 01: It's just an example of something that relates to the federal definition. [00:20:10] Speaker 01: And even if this court does find that the California statute is a little more broad than the Colorado's, it still undeniably relates to the federal definition. [00:20:22] Speaker 01: When you talk about lascivious, which isn't even defined, and then the dos factors. [00:20:29] Speaker 01: In my prosecution experience, one of the dos factors I rely upon the most is six, whether the visual depiction is intended or designed to elicit a sexual response in the viewer. [00:20:38] Speaker 01: And that's how we can get to some of the cases such as what cited in my brief, United States v. Helton, where you could have a minor in a bathing suit on a beach that can actually be child pornography, depending on how it's framed. [00:20:53] Speaker 01: And the big difference there is, yes, it does require the genitalia to be in the image for the federal definition, but the California statute isn't that much different. [00:21:04] Speaker 01: It still requires that they know it relates to sexual conduct. [00:21:08] Speaker 01: And while yes, the Luder-Lascivious Act for 288 is quite broad and you have to go into subjective intent and you have to look at the totality of the circumstances, the actual child pornography statute still requires that knowledge and it has to be proven and that's what brings it within the same realm of the federal statute. [00:21:35] Speaker 01: One of the other analogies that the defense brings up in their reply brief is talking about Pugin v Garland, which was analogy analyzing the broad language of relating to in context of an obstruction and [00:21:49] Speaker 01: They argue it supports his position, but it actually supports our position more because as said in Pugin, an offense relates to obstruction of justice only if it categorically involves an objective or intent to obstruct justice. [00:22:04] Speaker 01: And that's exactly what we have here. [00:22:06] Speaker 01: 311.11 requires that intent, that knowledge that it's a minor engaged in sexual conduct. [00:22:13] Speaker 01: So all of these wholly innocent, decidedly not pornographic images that the defendant complains of could never be prosecuted in California. [00:22:22] Speaker 01: And certainly there's no realistic probability that it would be prosecuted. [00:22:28] Speaker 01: And for those reasons, in the end, the analysis is simple. [00:22:32] Speaker 01: It's whether it relates to, connects to, pertains to the federal definition. [00:22:37] Speaker 01: And 31111, while is broader, is only slightly so because it does allow [00:22:44] Speaker 01: uh, any touching of any part of the body. [00:22:46] Speaker 01: But besides that, because of the knowledge requirement, it is, I don't, the United States does not believe any broader as nearly as broad as the defendant is putting forth. [00:22:58] Speaker 01: Uh, and for those reasons, uh, the United States asked that the court affirm the ruling of the district court and the sentence in this matter. [00:23:06] Speaker 00: Let me focus you for a minute on section 311.4. [00:23:12] Speaker 00: which defines sexual conduct under the California statute. [00:23:17] Speaker 00: And as a separate category of sexual conduct, it has lewd or lascivious sexual acts as defined in section 288. [00:23:29] Speaker 00: The 288, I mean, the difficulty here with the statute is the definition in 288. [00:23:42] Speaker 00: very broad. [00:23:43] Speaker 00: Do you agree with that? [00:23:45] Speaker 04: Yes, Your Honor. [00:23:46] Speaker 00: So by defining it as sexual conduct standing alone, does that support the defendant's argument here? [00:23:55] Speaker 01: It does not, Your Honor, because the individual who possesses the image and is charged under 311 [00:24:02] Speaker 01: 11a would still have to know that it's sexual conduct, and that could be done in numerous amounts of ways. [00:24:10] Speaker 01: You can prove intent through circumstantial evidence, the totality of the circumstances, and either it would have to, on its face, be sexually explicit so that they could know that it's sexual conduct, [00:24:25] Speaker 01: or to get down to these analogies of just rubbing on the back and touching of anybody innocently, quote unquote, but with that subjective loot intent. [00:24:35] Speaker 01: The only way they could then be prosecuted under that is if they knew the subjective intent of the person. [00:24:42] Speaker 01: So say you had two people that are grooming a child and one knows that the other one is touching the child with that subjective loot intent. [00:24:53] Speaker 01: then perhaps I could see a case where then a person could be prosecuted and convicted for possessing what some people might think on its face is a seemingly innocent photo. [00:25:04] Speaker 00: But then that's- And wouldn't that, in that instance that you've just identified, be categorically broader than the federal definition? [00:25:14] Speaker 00: only because you could have an innocent depiction somebody you know rubbing a kid's back and two maybe they're co-conspirators i don't know they happen to know it's a grooming exercise and there are lewd and lascivious thoughts going on in the head of the adult in the picture i mean that that's broader isn't it only because [00:25:41] Speaker 01: it allows touching of any other body part, not just the genitalia. [00:25:45] Speaker 01: That's the only reason it's more broad. [00:25:47] Speaker 01: I have prosecuted cases where somebody recorded a video of a minor rolling on the floor and we were able to prosecute under 2251 because of his subjective intent. [00:25:58] Speaker 01: He ended up admitting it was because for his sexual gratification. [00:26:02] Speaker 01: So anybody you or I viewing the image would think it was wholly or innocent. [00:26:09] Speaker 01: But when you looked at the dos factors and that's again why I pointed the court to that six factor something you do have to have that focus on the genitalia has to be included in the federal definition, but then you look to whether the visual depiction is intended or designed to elicit. [00:26:26] Speaker 01: a sexual response in the viewer. [00:26:28] Speaker 01: And that's the subjective intent. [00:26:29] Speaker 01: That's the subjective, lewd intent of the person who's producing or possessing the child, the federal child pornography images. [00:26:38] Speaker 01: And that's why they are so related in this case. [00:26:43] Speaker 00: Go ahead. [00:26:46] Speaker 00: I'm deferring to you. [00:26:51] Speaker 03: I was just following up on that. [00:26:54] Speaker 03: You know, if rubbing the shoulders could be fit within the federal definition, somebody pinching the shoulder, an adult pinching the shoulder of a child, could that be prosecuted under the California law 288? [00:27:15] Speaker 03: If a person pinching the child had a lewd and lascivious motive, [00:27:22] Speaker 01: I think reading it on its face and analyzing the Martinez statute that, yeah, if the state was able to prove beyond a reasonable doubt the subjective lewd intent of the individual, they could be prosecuted under 288, but an image of that could not be prosecuted under 31111 unless if there is evidence that the person who possessed that image knew it depicted a minor engaged in sexual conduct. [00:27:51] Speaker 01: OK, got it. [00:27:53] Speaker 01: And I apologize for going much over my time. [00:27:56] Speaker 01: If there's no further questions. [00:27:58] Speaker 04: You were expecting any questions. [00:28:00] Speaker 04: That's fine. [00:28:01] Speaker 04: But I think Closing Council is entitled to a little, oh, four minutes, 20 seconds of rebuttal. [00:28:09] Speaker 04: So we're ready for you now. [00:28:11] Speaker 02: Thank you, Your Honor. [00:28:13] Speaker 02: Quick clarification, Section 311.11, which is a California statute, I don't see child porn anywhere in the title or the text. [00:28:24] Speaker 02: It says, possession and control of matter depicting persons under 18 years of age [00:28:28] Speaker 02: engaging in or simulating sexual conduct, digitally altered or AI generated matter, punishment, previous conviction exemptions. [00:28:35] Speaker 02: So I'm not sure where the child porn language comes from, but I don't think it's the name of the statute. [00:28:41] Speaker 02: As to this idea, I've never claimed that somebody could innocently possess one of these and then be prosecuted under the California statute. [00:28:53] Speaker 02: That's not what I'm saying at all. [00:28:54] Speaker 02: What I'm saying is the actual content of the image [00:28:57] Speaker 02: would appear to any objective observer not to be pornographic or sexual in any way whatsoever. [00:29:04] Speaker 02: It would just appear to be depicting innocent conduct. [00:29:07] Speaker 02: Now, [00:29:08] Speaker 02: If there was a picture of, let's say somebody took a picture of themselves with a teenager with lewd intent and they take a selfie and they have their arm around them, if their subjective intent was lewd, then they have now committed, they violated section 288. [00:29:29] Speaker 02: And if they possess that picture, then they violated 311.11. [00:29:36] Speaker 02: What opposing counsel is talking about is difficulty of proving the violation, but that's not [00:29:44] Speaker 02: That's not what we're talking about here. [00:29:46] Speaker 02: And he brings up the realistic possibility of prosecution. [00:29:51] Speaker 02: But again, that's not saying would it be difficult to prove. [00:29:54] Speaker 02: What that's saying is in some cases, not here, you need to provide where we've come up with these sort of crazy hypotheticals of how somebody could be prosecuted under the statute. [00:30:10] Speaker 02: You only have to show examples of prosecution where [00:30:14] Speaker 02: where the defendant is interpreting a generic term [00:30:18] Speaker 02: in a non-generic way. [00:30:21] Speaker 02: You don't have to provide specific examples of prosecution when the statute on its face and the Supreme Court's interpretation of the statutes plainly apply to that conduct. [00:30:36] Speaker 02: So here, as opposing counsel just conceded, based on the plain language of the statute and Martinez, you could be prosecuted for exactly that. [00:30:47] Speaker 04: So as I understand, since the statute is clear of what's prohibited, the fact that it's highly unlikely that anyone would be prosecuted for some of that conduct. [00:31:01] Speaker 04: is not relevant in this context, because all you're doing is interpreting the clear meaning of the statutory language. [00:31:10] Speaker 04: Am I correct about that? [00:31:12] Speaker 02: I think it's highly unlikely in that it would be difficult to prove. [00:31:18] Speaker 02: I don't think it's relevant. [00:31:20] Speaker 02: But again, I actually don't think it's, I think it's overstating how difficult to prove it would be. [00:31:23] Speaker 02: You can imagine a scenario where [00:31:25] Speaker 02: somebody is caught as, you know, perhaps with a hands-on offense, and then you look at their phone, they got a bunch of pictures of them with, you know, touching children. [00:31:36] Speaker 02: And even though those pictures at the time appeared to be totally normal, we now know, oh, those are sort of like trophies of prior violations of 288. [00:31:47] Speaker 02: So I don't think it's particularly far-fetched. [00:31:49] Speaker 02: And, you know, council site Chavez Solis, Chavez Solis talks about [00:31:54] Speaker 02: exactly this issue, which is the realistic probability prosecution. [00:31:58] Speaker 02: And it cites a cal saying, we don't, you know, defendant doesn't need to cite a specific case here because the plain language of the statute and Martinez clearly show that you can be convicted for that. [00:32:09] Speaker 02: And in any event, they do cite some California cases where 288, a lewd touching under 288 was the basis of a child poor conviction. [00:32:22] Speaker 04: Thank you, Councilor. [00:32:24] Speaker 04: All right, thank you. [00:32:26] Speaker 04: Okay, you have six seconds. [00:32:27] Speaker 04: I would say this is six seconds. [00:32:31] Speaker 04: You'll save your six seconds. [00:32:33] Speaker 04: You're most kind, most kind. [00:32:35] Speaker 04: Thank you, Council. [00:32:36] Speaker 04: Case is submitted. [00:32:37] Speaker 04: Councilor excused.