Filed 10/13/15 P. v. Waters CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139439
v.
MICHAEL JAMES WATERS,                                                (Humboldt County
                                                                     Super. Ct. No. CR1300492)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Appellant Michael James Waters was convicted of both possession of child
pornography pursuant to Penal Code section 311.11, subdivision (a) (section 311.11(a))
(count one) and possession of child pornography with a prior conviction requiring
registration under the Sex Offender Registration Act pursuant to section 311.11,
subdivision (b) (section 311.11(b)) (count two).1 Appellant contends that both
convictions must be reversed because section 311.11(b) is a penalty provision, not a
separate offense, and therefore it was prejudicial error for the trial court not to bifurcate
the issue of his prior conviction at trial. If subdivision (b) is a separate offense, then he
asserts that it violated the double jeopardy clause of the federal Constitution for him to be
convicted of the same crime twice based on the same course of conduct. At a minimum,



         1
             All subsequent statutory references are to the Penal Code.


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he argues, and respondent concedes, count one must be vacated as a lesser included
offense of count two.
       We need not decide whether section 311.11(b) is a separate crime from section
311.11(a) because, assuming it is not, and assuming further that it was error for the trial
court not to bifurcate appellant’s prior sex crime conviction from the guilt phase of his
trial, any such error was harmless.
       As to the balance of the contentions raised by appellant, we accept the parties
agreement that assuming the two counts properly state separate offenses, then count one
was a lesser included offense to count two, and must be vacated.2
                                             II.
                  FACTUAL AND PROCEDURAL BACKGROUND
       A. Evidence at Trial
       Two Arcata police officers responded to a call reporting a habitual camper, a
violation of local law. The officers arrived at a van with its windows covered with
cardboard or sheets. The officers knocked on the door of the van for approximately
seven to ten minutes. Appellant came out of the van, locked the door, and hid the key.
Pursuant to a parole search, the officers searched the van and found a laptop computer
and external hard drive. One officer looked through the computer files and the browser,
but did not find anything illegal. The officers elected to seize both the laptop and hard
drive for further analysis.



       2
         Regardless of whether section 311.11(b), if proved, constitutes a separate
offense or is simply a penalty enhancement that attaches to a conviction under section
311.11(a), the net result of our vacating appellant’s conviction for count one is that he
stands convicted of a single count of possession of child pornography with an
enhancement for having a prior conviction subject to registration, within the meaning of
section 311.11(b). For this same reason we need not, and do not, decide whether the
rationale underlying People v. Muhammad (2007) 157 Cal.App.4th 484 is applicable
here. However, we note that at least one appellate court has affirmed a separate
conviction under subdivision (b) in a published opinion. (See People v. Petrovic (2014)
224 Cal.App.4th 1510.)


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       Richard Grimm, a forensic examiner with the Humboldt County District
Attorney’s Office, conducted an examination of the laptop. Grimm was not able to break
the encryption on the hard drive so he was unable to examine the data contained on it. In
examining the laptop, he discovered there were three accounts: an administrator account,
a guest account, and one called “Michael.” He found approximately 300 images of child
pornography in the laptop Internet history cache and other images in deleted files.
Grimm also recovered Internet searches that included the words: Lolita, “PTHC” (a
commonly used term for pre-teen hardcore), and child pornography. Grimm also found
Bit Torrent, a file-sharing program, which contained a folder entitled “66 photos of
under-aged nude girls.”
       At trial, appellant testified that he did not use the laptop to search the Internet for
child pornography. He claimed he purchased the laptop from a person also named
Michael. Appellant said he was “not computer savvy.” He testified that the child
pornography was already on the computer or the police planted it there, but that it was
not his.
       On cross-examination, he admitted that he had prior convictions for setting fire to
a police car, false imprisonment, and second degree sexual assault. As a result of the
sexual assault conviction, he was required to register as a sex offender. The court
admitted exhibit four, a copy of appellant’s conviction in Texas for sexual assault, and
exhibit five, a notice of his sex offender registration.
       B. Bifurcation Motion and Jury Instructions
       Appellant filed a motion in limine to bifurcate his prior conviction and sex
offender registration. He argued that section 311.11(a) criminalizes possession of child
pornography, and section 311.11(b) “elevates the punishment for the same offense”
where a defendant has been convicted of an offense requiring sex offender registration.
He asserted that the issue of the prior conviction is relevant to punishment only and had
no bearing on the charged offense. He also moved to exclude his 1998 sexual assault
conviction if he elected to testify. He argued under People v. Beagle (1972) 6 Cal.3d
441, abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th 1176, that the


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conviction was remote in time, did not demonstrate dishonesty, and was unduly
prejudicial.
        The court held a hearing on the motion, and appellant argued the prior conviction
was not an element of the offense in the way being a felon in possession of a firearm is an
element. Instead, it was a “status enhancement” rather than a “conduct enhancement.”
Counsel pointed out that section 311.11(b) contained the same elements as section
311.11(a) and was “simply a matter of punishment” that should not be presented to the
jury.
        The court concluded count one was a “wobbler” and count two was a separate
offense carrying a different term. The court stated that for count two, the conviction of
an offense requiring registration was “an element that the People are required to prove to
the jury.” The court concluded that because the People did not elect to stipulate to the
prior conviction, it must be presented to the jury.
        The court next addressed appellant’s motion to have his 1998 sexual assault
conviction excluded as impeachment if he testified. The court found that because the
conviction would be admitted to prove count two, the information would already be
before the jury. The prosecution added that the prior sex offense could come in for
impeachment purposes as a crime of moral turpitude.
        The jury was instructed separately as to section 311.11(a) and (b), with the added
element that to convict appellant of subdivision (b), the jury must find: “[t]he defendant
has been previously convicted of an offense requiring registration under the Sex Offender
Registration Act.” The jury convicted appellant of both counts.
        C. New Trial Motion and Sentencing
        Appellant moved for a new trial on the grounds that the court erred in refusing to
bifurcate his prior conviction for sexual assault. The court concluded that the prosecution
was required to prove the prior conviction as an element of the offense. This was
different from a prior prison term, which is a status offense and is an enhancement for
sentencing purposes, not an element of the offense.



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       The court stayed the sentence on count one because section 654 prohibited the
imposition of two separate terms for the same course of conduct. The court stated “the
first count was simply possession. The second count, that same possession but with [a]
prior conviction.” The court ordered count one “stayed pending sentencing on the greater
count.” The court sentenced appellant to prison for a period of six years.3
                                              III.
                                       DISCUSSION
       Appellant primarily contends that his convictions on both counts must be reversed
because the trial court erred in failing to bifurcate the issue of his prior sexual assault
conviction and duty to register as a sex offender. Underlying his contention is his belief
that count 1 is not a separate offense from count 2. He claims that section 311.11(a) sets
forth the substantive crime of possession of child pornography and section 311.11(b) is a
penalty provision, claiming the rationale employed by Division Five in its decision in
People v. Muhammad, supra, 157 Cal.App.4th 484 is applicable here. As noted, we do
not and need not decide whether appellant’s contention is correct because, even assuming
it is, any error in denying his pretrial motion to bifurcate was harmless.4




       3
        Later in the sentencing hearing, the court incorrectly stated that “[t]he other
assessments, Count Two, will be stayed pending completion of the sentence for Count
One.” The minute order, however, reflects a sentence of six years on count two and a
two-year sentence on count one that was stayed.
       4
          In his opening brief, appellant argues that if this issue was forfeited because of
the failure of his counsel to raise the issue by way of a demurrer to the information, under
People v. Upsher (2007) 155 Cal.App.4th 1311, then it was ineffective assistance of
counsel not to file a demurrer to the information. Respondent does not argue forfeiture
on appeal, and because we need not decide whether counts one and two state separate
crimes, we also need not decide either the issue of forfeiture, nor ineffective assistance of
counsel. (See id. at p. 1318; People v. Goldman (2014) 225 Cal.App.4th 950, 952-953
[defendant could not demonstrate ineffective assistance of counsel because it was not
reasonably probable defendant would have obtained a better result if defense counsel had
demurred to the information].)


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       A. Appellant Cannot Demonstrate Prejudice from Introduction of his Prior
       Sexual Assault Conviction at Trial

       As we noted in this opinion’s Introduction, appellant’s principle argument is that
his conviction on either count must be reversed because the court erroneously refused to
bifurcate evidence about his prior sex offense and this prejudiced him before the jury as
to the issue of guilt of possession of child pornography. He argues allowing the jury to
learn he was a registered sex offender undermined his credibility and was “highly
inflammatory.” Appellant further contends that the trial court abused its discretion in
admitting the prior convictions without properly weighing the potential prejudice to him.
       The prosecution admitted two exhibits, without objection, to prove appellant had a
prior conviction requiring that he register as a sex offender. Exhibit four consisted of
certified conviction documents from a 1998 sexual assault conviction in Texas. The
exhibit included the grand jury indictment that alleged the details of the offense including
intentional and knowing oral and vaginal penetration of the victim while placing her in
fear of death or serious bodily injury. Exhibit five was appellant’s sex offender
registration form that listed him as “transient” and “unemployed.”
       Appellant argues the court failed to weigh properly whether this evidence unduly
prejudiced him, relying on People v. Calderon (1994) 9 Cal.4th 69 (Calderon). Calderon
held that a trial court has discretion to bifurcate a prior conviction, but is not required to
do so if the defendant will not be unduly prejudiced by the unitary trial. (Id. at p. 72.)
Bifurcation is not required in cases where the jury would still learn of the existence of the
prior conviction before returning a guilty verdict. (Id. at p. 78.)
       Even accepting appellant’s argument that the trial court should have bifurcated the
issue of his prior conviction until he was found guilty of possession of child pornography,
ultimately there was no prejudice from the admission of the evidence that he had a prior
conviction for sexual assault. The same evidence was admitted appropriately to impeach
appellant when he testified at trial, as that prior was a crime of moral turpitude: “[T]he
degrading use of another, against her will, for one’s own sexual arousal is deserving of
moral condemnation. We hold that sexual battery is a crime of moral turpitude.” (People


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v. Chavez (2000) 84 Cal.App.4th 25, 29-30 [crimes of moral turpitude include crimes that
indicate a “ ‘ “general readiness to do evil,” ’ ” or demonstrate moral depravity of any
kind that have “ ‘ “some ‘tendency in reason’ [citation] to shake one’s confidence in [the
person’s] honesty” ’ ”].)
       Appellant is, however, correct that the scope of the evidence admitted only for
impeachment purposes should have been more limited, and should not have included the
details about the prior sex offense in exhibit four. But, even if it was error to admit some
of the details surrounding appellant’s sexual assault crime during the trial as to count one,
it too was harmless. “[S]tate law error in admitting evidence is subject to the traditional
Watson test: The reviewing court must ask whether it is reasonably probable the verdict
would have been more favorable to the defendant absent the error. . . .” (People v.
Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson (1956) 46 Cal.2d 818, 836
(Watson).)
       It is not reasonably probable that if the trial court had bifurcated the evidence
about appellant’ prior sexual assault conviction, the verdict would have been more
favorable to him. The prosecution presented overwhelming evidence that appellant
possessed child pornography on his computer. When officers knocked on the door of
appellant’s van, it took him seven to ten minutes to open the door, and then he attempted
to lock them out. The user account on the computer was in appellant’ first name,
Michael. There were 300 child pornography images in the laptop Internet history cache
and other images in deleted files. The forensic examiner also found Bit Torrent, a file-
sharing program that contained a folder entitled “66 photos of underaged nude girls.”
Appellant admitted using Bit Torrent but claimed it was for music, movies, and
automotive books.
       The only contrary evidence was appellant’s testimony that he happened to
purchase the computer from someone with the same first name as his, and that person
was responsible for the child pornography. In his own testimony, appellant stated the
other Michael was responsible or “perhaps the police planted it there, but of course, that’s



                                              7
a purple unicorn theory.” This statement reveals that even appellant recognized the
implausible nature of his defense.
       Further, when appellant elected to testify, the prosecution was able to impeach him
with three prior convictions, only one of which included the sexual assault conviction.
Our Supreme Court has held that where a trial court erred in admitting a defendant’s prior
convictions for rape and murder, the error was harmless given the substantial evidence of
guilt and the fact the convictions could have been used to impeach defendant. (People v.
Gurule (2002) 28 Cal.4th 557, 609.) “Considering together the availability of the prior
felony conviction for impeachment, the strong evidence of defendant’s guilt, and the fact
his version of the crime reached the jury, we conclude the trial court’s error was harmless
under []Watson[, supra,] 46 Cal.2d [at p.] 836 . . . . [Citations.]” (People v. Gurule, at
p. 609.)
       Therefore, we conclude that it was proper to admit the evidence of appellant’s
prior conviction for sexual assault as impeachment evidence, and that even if the scope of
the evidence admitted was error, it did not prejudice appellant’s trial as to the underlying
offense.
       B. Appellant’s Conviction on Count One Must Be Reversed
       “ ‘ “Under California law, a lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts actually alleged
in the accusatory pleading, include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser. [Citations.]”
[Citation.]’ ” (People v. Upsher, supra, 155 Cal.App.4th at p. 1319, quoting People v.
Medina (2007) 41 Cal.4th 685, 701.) “When section 954 permits multiple conviction[s],
but section 654 prohibits multiple punishment, the trial court must stay execution of
sentence on the convictions for which multiple punishment is prohibited. [Citations.]”
(People v. Reed (2006) 38 Cal.4th 1224, 1227.) “However, an exception to this general
rule allowing multiple convictions prohibits multiple convictions based on necessarily
included offenses. [Citations.]” (People v. Medina, at p. 701.)



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       As we have already observed both parties agree that assuming counts one and two
are both substantive offenses, then possession of child pornography (count one) is a lesser
included offense of possession of child pornography with a prior conviction requiring
registration as sex offender (count two). The greater offense of a violation of section
311.11(b) cannot be committed without also committing a violation of section 311.11(a).
(See People v. Upsher, supra, 155 Cal.App.4th at pp. 1320-1321.)
       “ ‘When the jury expressly finds defendant guilty of both the greater and lesser
offense . . . the conviction of [the greater] offense is controlling, and the conviction of the
lesser offense must be reversed.’ . . .” (People v. Milward (2011) 52 Cal.4th 580, 589,
quoting People v. Moran (1970) 1 Cal.3d 755, 763.)
       Therefore, we vacate appellant’s conviction for count one, leaving only his
conviction for the greater crime alleged in count two to remain.
                                             IV.
                                       DISPOSITION
       Appellant’ conviction for count one, section 311.11(a), is vacated, and count two,
section 311.11(b), is affirmed.




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                                 _________________________
                                 RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




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A139439, People v. Waters




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