As I explained in a post I did several years ago, criminal charges are at least implicitly based on the premise that each “charge” – which usually translates into a “count” in an indictment or other charging document – is based on the commission of a single, distinct “crime.”
As I also explained in that post, a defendant can challenge one or more of the charges in an indictment or other charging document if he/she believes the charge violates the premise noted above, i.e., violates the proposition that each charge, each count, is based on the commission of a single crime. And as I there, a defendant has two different ways to bring such a challenge, one of which involves “duplicity” and the other of which involves “multiplicity.”
As § 919 of the U.S. Department of Justice’s Criminal Resource Manual explains, “[d]uplicity is the joining in a single count of two or more distinct and separate offenses; multiplicity is the charging of a single offense in several counts.” This post examines a recent decision from the California Court of Appeals in which the defendant claimed the charges against him were multiplicitous in that they, to use a phrase I’ve always liked, impermissibly “fractionated a single course of conduct into multiple offenses.” State v. Eisch, 91 Wis.2d 847, 284 N.W.2d 120 (Wisconsin Court of Appeals 1979).
The problem with multiplicitous counts is, as the Third Circuit Court of Appeals noted many years ago, that
multiplicity, the charging of a single offense in different counts of an indictment, has the vice that it may lead to multiple sentences for a single violation. And even if that does not result, it may prejudice the jury against the defendant by creating the impression of more criminal activity on his part than in fact may have been present.
The basic inquiry [is two-fold, and] in determining whether counts of an indictment are truly separate, and not multiplicitous, [a court must determine] whether proof of one offense charged requires an additional fact that proof of the other offense does not necessitate.
U.S. v. Carter, 576 F.2d 1061 (3d Circuit 1978).
(Courts generally agree that duplicity, which isn’t at issue in this case, is less of a problem than multiplicity. As an Ohio federal district court judge noted earlier this year, the remedy for a duplicitous count, i.e., for a count that charges two (or more) crimes instead of just one, is “to have the government dismiss or elect the . . . charge within the count on which the government will rely” in proving its case at trial. U.S. v. McCafferty, 2011 WL 933771 (U.S. District Court for the Northern District of Ohio 2011).)
The case at issue is People v. Sample, __ Cal. Rptr. 3d __, 2011 WL 5581382 (California Court of Appeals 2011). All I can find out about the prosecution, as such, is that a jury
convicted Julius Allen Sample of three counts of receiving stolen property (California Penal Code § 496(a)), two counts of identity theft (California Penal Code § 530.5(a)), three counts of possessing child pornography (California Penal Code § 311.11(a)), six counts of residential burglary (California Penal Code §§ 459, 460) and one count of burglary (California Penal Code § 459).
State v. Eisch, supra. (If you’re interested, you can find the sections of the Penal Code cited above here.)
Sample appealed, “contending there is insufficient evidence to support three separate convictions for possession of child pornography.” People v. Sample, supra. The convictions for possessing child pornography apparently arose from a search that was conducted after Sample had been arrested for, and I’m guessing here, burglary and/or receiving stolen property and/or identity theft. I base that conclusion on this part of the California Court of Appeals’ opinion:
After Sample's arrest, police officers searched Sample's backpack and his storage shed. In Sample's backpack, the officers found a stolen computer and a removable hard drive. In Sample's storage shed, the officers found another stolen computer.
Both computers and the hard drive contained child pornography.
The prosecution charged and the jury convicted Sample of three counts of possession of child pornography: one count for the child pornography on each computer (counts 19 and 20) and one count for the child pornography on the hard drive (count 21).
People v. Sample, supra.
On appeal, Sample argued that the Court of Appeals
must reverse two of his possession of child pornography convictions because case law only permits one conviction for simultaneous possession of multiple images of child pornography, even if the images are contained on different computers or hard drives.
People v. Sample, supra.
In its response, the prosecution (“the People”)
concede[d] [that] Sample could not be properly convicted of all three counts of possessing child pornography. Nonetheless, the People contend Sample could be properly convicted of one count for possessing the child pornography in the computer and removable hard drive found in his backpack, and one count for possessing the child pornography in the computer found in his storage shed because the possession occurred at different locations.
People v. Sample, supra.
In ruling on these arguments, the Court of Appeals noted that California Penal Code § 311.11(a) “prohibits the knowing possession of `any matter’ depicting persons under 18 years of age engaging in or simulating sexual conduct” and that two California “appellate courts have addressed the question of whether simultaneous possession of multiple items of child pornography constitutes multiple offenses or a single offense”. People v. Sample, supra.
In People v. Hertzig, 156 Cal. App.4th 398 (California Court of Appeals 2007), Timothy Hertzig was found with
multiple videos of children engaged in sexual acts on his computer. . . . The prosecution charged [him] with and a jury convicted him of 10 counts of possession of child pornography. . . . On appeal, he argued his possession of multiple child pornography videos constituted a single violation of section 311.11, subdivision (a). . . . .
The appellate court reviewed cases involving multiple convictions for other types of possession crimes and derived two distinct principles from them. . . . First, the simultaneous possession of multiple items of one type of contraband constitutes a single violation. . . . Second, the simultaneous possession of two types of contraband in the same location constitutes a single violation. . . .
Applying these principles, the court concluded [Hertzig’s] possession of multiple pornographic videos constituted a single act of possession under section 311.11, subdivision (a). . . .
People v. Sample, supra (quoting People v. Hertzig, supra).
In People v. Manfredi, 169 Cal. App.4th 622 (California Court of Appeals 2008), prosecutors “filed a complaint” charging Eric Manfredi “with multiple counts of possession of child pornography after police officers found multiple items of child pornography” in his home. People v. Manfredi, supra. Manfredi challenged the charges, arguing that
arguing that, under Hertzig, the prosecution could only charge him with one possession count. . . . The prosecution countered that it could charge him with multiple possession counts because the specified items of child pornography were in separate media containers (i.e., separate computers, hard drives, discs, and tapes). . . .
The appellate court agreed with [Manfredi]. . . . After reviewing the same possession cases relied upon in Hertzig, the appellate court rejected the prosecution's one container equals one possession argument and held that `simultaneous possession of multiple child pornography materials at the same location is chargeable as but one criminal offense’. . . .
People v. Sample, supra (quoting People v. Manfredi, supra).
In the Sample case, the prosecutors argued that the Hertzig and Manfredi cases were “distinguishable” from what Sample did
because in those cases police officers found the child pornography at the same time and in the same location. In this case, however, police officers found the child pornography at two different times in two separate locations: Sample's backpack and Sample's storage shed.
People v. Sample, supra.
The Court of Appeals agreed with the prosecutors:
As the Hertzig and Manfredi courts did, we look to analogous possession cases for guidance and find People v. Von Latta (1968) 258 Cal. App.2d 329 particularly instructive.
In Von Latta, police officers found [Clifford Von Latta] in someone else's home with a marijuana pipe in his hand. The officers found additional marijuana on a table in the same room. . . . Six hours later, the officers searched [Von Latta’s] home, which was approximately 30 miles away from where they arrested [Von Latta], and found four pounds of marijuana hidden in [his] garage. . . .
On appeal, [Von Latta] argued he could not be separately convicted for his actual possession of marijuana at someone else's home and his constructive possession of marijuana in his garage, as these two offenses constituted a single act. . . . The appellate court disagreed, reasoning that possession offenses occurring at different times and locations, even if they occurred on the same day, are separate and distinct acts supporting separate convictions. . . .
Applying Von Latta to this case, we conclude Sample's act of actually possessing child pornography in the computer and removable hard drive found in his backpack was separate and distinct from his act of constructively possessing child pornography in the computer found in his storage shed. Thus, we conclude he was properly convicted of two of the three possession counts.
People v. Sample, supra. (If you’re interested in the distinction between “actual” possession and “constructive” possession, check out the blog post you can find here.)
The Court of Appeals therefore reversed Sample’s conviction on Count 21 of the indictment but upheld his conviction on all the other charges. People v. Sample, supra.
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