People v. Gerber

• Decision Date: 17 August 2011
• Docket Number: No. H034639.,H034639.
• Citation: 196 Cal.App.4th 368,11 Cal. Daily Op. Serv. 6954,126 Cal.Rptr.3d 688,2011 Daily Journal D.A.R. 8317
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Lowell GERBER, Defendant and Appellant.

196 Cal.App.4th 368

126 Cal.Rptr.3d 688

11 Cal. Daily Op. Serv. 6954

2011 Daily Journal D.A.R. 8317

The PEOPLE, Plaintiff and Respondent,

v.Joseph Lowell GERBER, Defendant and Appellant.

No. H034639.

Court of Appeal, Sixth District, California.

June 8, 2011.

Review Denied Aug. 17, 2011.^*

Robert L.S. Angres, Fresno, Under Appointment by the Court of Appeal Attorney for Appellant.

Edmund G. Brown, Jr. and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon and Nanette Winaker, Deputy Attorneys General, Attorneys for Respondent.

ELIA, Acting P.J.

Defendant Joseph Lowell Gerber appeals from a judgment of conviction of possession of child pornography (Pen.Code, § 311.11, subd. (a)) ¹ (count one), annoying or molesting a child (§ 647.6, subd. (a)) (count two), furnishing marijuana to a minor under 14 years of age ( Health & Saf.Code, § 11361, subd. (a)) (count three), and two counts of furnishing a controlled substance to a minor ( Health & Saf.Code, § 11353) (counts four and five).

On appeal, defendant challenges the sufficiency of the evidence to support the conviction of possession of child pornography (§ 311.11) and raises claims of ineffective assistance of counsel and instructional error. In addition, he asserts that the trial court lacked authority to make its no-contact order.

We hold that the phrase “the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct” in section 311.11 requires a real child to have actually engaged in or simulated the sexual conduct depicted. We reverse the conviction of possession of child pornography in violation of section 311.11 based on the insufficiency of the evidence (count one) and we reverse the convictions of furnishing a controlled substance to a minor in violation of Health and Safety Code section 11353 (counts four and five) based on instructional error. We also strike the no-contact order.

A. Procedural History

By information filed September 5, 2008, defendant was charged with the five counts. At the commencement of the jury trial, the clerk read the information, which alleged in counts four and five that defendant violated Health and Safety Code section 11353 by providing the victim with a controlled substance, namely cocaine base.

After the prosecution rested and defense counsel indicated that no evidence would be presented on behalf of the defendant, the court and counsel discussed the jury instructions off the record. Back on the record, out of the jury's presence, defense counsel and the court discussed the situation that the evidence showed defendant provided cocaine on three occasions, the second of which was outside of Santa Clara County, and the information charged defendant with two violations of Health and Safety Code section 11353.

When court reconvened the next morning, the People received permission to file a first-amended information conforming to proof as to counts four and five. The first-amended information specified that count four was “The First Time” and count five was “The Third Time.” After the prosecution briefly recalled a witness, the trial court then proceeded to instruct the jury. In its jury instructions, the court read the charges in the information, including counts four and five alleging defendant furnished cocaine base to the minor victim. But the court instructed as to counts four and five that the People were required to prove that the “controlled substance was cocaine and methamphetamine.”

During subsequent closing argument, the prosecutor argued that, as to counts four and five, the controlled substance furnished or given away by defendant was “cocaine and/or methamphetamine.” She explained that count four was the first time defendant and the victim used cocaine at defendant's house in Milpitas and count five referred to the third time defendant used cocaine with the victim and then told her to pose for pictures. The prosecutor specified that the second time they used cocaine, the incident at the park, was not a charged offense because that incident occurred outside Santa Clara County.

During deliberations, the court received several communications from the jury. On the second day of deliberations, the jury sent a third communication, which asked the court in essence whether “meth” was interchangeable with cocaine in counts four and five and whether the controlled substance cocaine base specified in counts four and five included “meth.” Out of the jury's presence, the prosecutor indicated that the People wished to amend counts four and five of the information to conform to proof to read “ cocaine base and/or methamphetamine.” The court permitted that amendment. Defendant waived arraignment but objected to the amendment. In counts four and five of the first-amended information as amended, the phrase “and/or methamphetamine” is interlineated in handwriting after “cocaine base.”

Following that third jury communication, the trial court provided a written response and a supplemental instruction. The communication was returned with a handwritten message from the judge: “We have amended the Information to add methamphetamine as a controlled substance and clarified instruction 2380 to say cocaine base and/or methamphetamine see attached. As it now reads either methamphetamine or cocaine base or a combination of both satisfy the elements of counts 4 + 5.” The revised instruction specified with respect to counts four and five that the controlled substance furnished could be “cocaine and/or methamphetamine.”

The minutes show that, on June 11, 2009, the court's written response was provided to the jury at 10:05 a.m. and the jury advised it had reached a verdict at 10:11 a.m. The jury found defendant guilty of all five counts.

The court sentenced defendant to a total prison term of 13 years and four months on the four felony counts (counts one, three, four and five) and a concurrent one-year county jail term on count two.

B. Evidence

The victim J., who was in eighth grade and 14 years old at the time of trial in June 2009, testified that her parents had been separated for about 12 years and she lived with her mother. In 2008, when she was a seventh grader in junior high and 13 years old, her mother thought J. should work on building a relationship with her father, whom she identified as defendant, and J. began to spend more time with him. Over approximately a couple of months ending in July 2008, while J. was 13 years old, she often spent time with defendant. During this period, defendant was at first living in a trailer on someone's driveway, then he was living in hotels, and then he moved to a house in Milpitas.

J. indicated that, before this time period, she had started smoking marijuana with friends. She knew some friends were using cocaine and she was interested in trying some. At the point when her mother was encouraging her to work on a relationship with defendant, she was “interested in experimenting with drugs....”

J. recalled an early incident during this time period when defendant, who was then living in the trailer, allowed her to drink alcohol, a Smirnoff, that she found in his refrigerator. Defendant told her that his father used to let him have drinks. She did not tell her mother.

Defendant provided J. with marijuana, which he had bought. She had seen marijuana before. The first time he gave her marijuana, they were in the trailer. She initially smoked marijuana alone but, after a few times, they smoked together. One time, they ate marijuana. She also smoked marijuana with defendant when he was living in Milpitas. J. got high when she smoked or ingested the marijuana.

J. and defendant drank alcohol together on several different occasions. She recalled a time when she visited defendant in a rented hotel room where he was living and he allowed her to have alcohol, which he had bought. He also offered her Vicodin, which she had seen there. She drank Jägermeister, Red Bulls, and took four Vicodin pills. She ended up vomiting for a long time while defendant stood there. Defendant took pictures of her throwing up and J. later found them on his phone. He then laughed about the pictures, which he thought were funny. When she asked why he took them, he said, “ ‘Just memories.’ ” J. told her mother that she had gotten sick but did not tell her mother about the alcohol and pills.

J. continued to spend time with defendant after the hotel incident.

On July 4, 2008, defendant gave J. a substance that he said was cocaine. He was then living in a house in Milpitas. Upstairs in his bedroom, defendant made two lines of cocaine and she snorted one line and he snorted the other. She recalled that it was a “yellowish color.” When asked at trial how she knew it was cocaine, J. replied that defendant told her. She also stated “I'm not sure if what he gave me was cut with something else.” J. recalled that defendant and she drank alcohol, specifically Crown Royal, that night. Defendant told J., who was only 13 years old, that alcohol is something good to use with cocaine and advised her to take a couple of shots with a couple of lines. When she went home, J. did not tell her mother what happened.

Defendant and J. made a plan for her to sneak out of her home, meet defendant, and do cocaine for a second time. Defendant drove to J.'s house at night and picked up J., who had snuck out of her house, and drove her to the park. They went to a table in the park, defendant put the cocaine in lines, and they snorted it. Defendant told J. it was cocaine and “it looked like the same powdery substance” to J. They then returned to defendant's truck.

Back in the truck, J. tried to convince defendant to give her the rest of the cocaine. He asked whether she was willing to take pictures and she agreed. He specifically told her that if she wanted the rest of the cocaine, she had to pose for pictures for...