People v. Kurey

• Decision Date: 28 March 2001
• Docket Number: No. B,B
• Citation: 106 Cal.Rptr.2d 150,88 Cal.App.4th 840
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 2 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH KUREY, Defendant and Appellant. Case141119 Filed

106 Cal.Rptr.2d 150 (Cal.App. 2 Dist. 2001)

THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOSEPH KUREY, Defendant and Appellant.

Case No. B 141119

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Filed 3/28/01; pub. order 4/27/01 (see end of opn.)

APPEAL from an order of the Superior Court of the County of Los Angeles,

THE COURT: The opinion in the above entitled matter filed on March 28, 2001, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered. COOPER, Acting P. J.TODD, J.

Robert C. Gustaveson, Judge. Affirmed.

John D. Lueck for Defendant and Appellant. (Los Angeles County Super. Ct. No. KA043389

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Chung Mar, Deputy Attorney General, Michael W. Whitaker, Deputy Attorney General, for Plaintiff and Respondent.

COOPER, J.

INTRODUCTION

Appellant challenges the finding of a probation violation for the violation of Penal Code section 311.11 on the grounds that the statute is unconstitutional, allowing conviction when the minor "appears" to be under 18, that expert testimony of "apparent age" is inadmissible and that there is insufficient evidence that appellant knew the actors in the video clips were under 18. We affirm.

STATEMENT OF FACTS¹

Appellant, Thomas Joseph Kurey (Kurey) was charged with two counts of committing a lewd act upon the body of a child under the age of 14. (Pen. Code,

288(a); counts 1 and 2).² On March 23, 1999, prior to the preliminary hearing, Kurey pled guilty to count 1 and count 2 was dismissed pursuant to a plea agreement. On April 30, 1999, imposition of sentence was suspended, Kurey was placed on five years formal probation with various conditions of probation, including 270 days in the County jail, submission to search and seizure at any time of the day or night, by law enforcement or probation officer, and obey all laws and orders of the court.

On December 22, 1999, Orange County Sheriff Wade Walsvick went to Kurey's residence to evaluate Mr. Kurey as a section 290 registrant. Deputy Walsvick searched Mr. Kurey's computer, and discovered movie clips purchased from a commercial web site, depicting young male and female individuals engaged in sexual activity. The password to the file containing the movie clips was "Incest is Best." Walsvick asked Kurey how old be believed the individuals in the films to be. Kurey responded that he hoped they were 18, but "I believe they are under 18." The discovery was reported to Kurey's probation officer who requested a probation violation hearing, alleging violation of section 311.11 subdivision (a) (possession of child pornography, a misdemeanor depicting a person under the age of eighteen (18) years personally engaging in and or simulating sexual conduct as defined in section 311.4 subd. (d)).³

The District Attorney moved to revoke Kurey's probation. Kurey surrendered to the Pomona Court on or about January 28, 2000, at which time he denied a violation of probation. The matter was set for a hearing which commenced on April 13, 2000. Kurey filed a motion in liminie seeking to exclude opinion evidence of the People's medical expert regarding the apparent age of the young males and females in the movie clips. Kurey argued that "the [P]eople sought to interpret California Penal Code 311.11 in an unconstitutional manner, in that the sole basis for the allegation the movie clips depict individuals under the age of 18, is opinion evidence based on their appearance, despite the specific representation that all models depicted on the site were over the age of 18." (Emphasis in original.)

The probation revocation hearing continued on April 14, 2000. An evidentiary hearing was conducted with both the People and Kurey presenting testimony, including expert witnesses. The trial court found appellant in violation of his probation. He was given the low term of three years in state prison for count 1; ordered to pay sex offender and restitution fines in the amount of $200 pursuant to 290.3 and 1202.4. The trial court also imposed and stayed a parole revocation fine of $200 pursuant to 1202.45.

Prosecution Evidence re: Age

Jeanie Ming, a Certified Pediatric Nurse Practitioner who is part of the Child Abuse Services Team in Orange County, testified as an expert that several of the individuals in the video clips were under 18 years old. Using the Tanner Scale of physical development, Ming testified that based upon their lack of muscle development, their body stature and lack of body hair, three of the males depicted in the videos were between the ages of 14 and 16. Ming also testified that based on breast development, one of the females depicted in the video was less than 18 years old. Ming stated that she could not determine the true chronological age of the individual, but that 95% of individuals displaying these traits were under the age of 18.

Defense Evidence re: Age

The defense presented the testimony of Thomas E. Long, a medical doctor, with over twenty years experience, specializing in emergency medicine. He prepared for the hearing by reading the reports prepared by the police officers, the report of Ms. Ming, and viewing the subject video clips.

Dr. Long testified that it is not medically possible to determine whether any of the persons depicted were under the age of 18. Dr. Long testified that the "Tanner Scale" utilized by Ms. Ming measures only physical maturation, and says nothing about chronological age. Dr. Long testified with respect to male participants, that in his practice he has seen literally hundreds of young men with the same degree of maturation,⁴ despite the fact they were over the age of 18. With respect to the youngest appearing female, "Evelyn" with a "breast maturation of Tanner 4," he testified that he has in his practice examined more than one hundred women, over the age of 18, but with her level of physical maturation or less. He believes a number of factors to be far more important to physical maturation, including genetic/family history, malnutrition, racial background, and mother's use of tobacco and drugs during pregnancy.

The court also received into evidence, the published assertion by the website that all persons depicted on the site were over the age of 18.

DISCUSSION

Kurey alleges that 1) the finding of a probation violation was unconstitutional;

2) evidence of "apparent age" should be restricted to that which is competent to establish true chronological age, 3) the trial court should have sustained appellant's objection to the testimony of Ms. Ming, and 4) the evidence was insufficient to show that Kurey had knowledge that the actors were under 18 years of age.

Kurey's argues the application of section 311.11 is unconstitutional based on his interpretation of a Ninth Circuit opinion which held that portions of a federal statute, criminalizing possession of computer generated material depicting minors in a sexually explicit fashion, were unconstitutional. Appellant argues that the Ninth Circuit case of The Free Speech Coalition v. Reno⁵ (Free Speech) supports his argument that "[i[t is . . . absolutely required that to prevail, the [P]eople 1) must produce evidence that the individuals depicted were in fact under the age of 18, not merely that they appear to be under the age of 18; and 2) That Appellant knew in fact they were under the age of 18." Kurey's suggests that in Free Speech, the Ninth Circuit "analyzes a similar federal statute and finds it to be unconstitutional, based on [its] definition of child pornography based on appearance."

Free Speech⁶ involved the extension of the federal Child Pornography Prevention Act of 1996 (CPPA) to criminalize "the generation of images of fictitious children engaged in imaginary but explicit sexual conduct." ⁷ In 1996 the Congress had expanded the CPPA to apply to the use of computer technology to produce pornography containing images that look like children. Rejecting this expansion of the scope of the CPPA, the court held "while such images are unquestionably morally repugnant, they do not involve real children nor is there a demonstrated basis to link computer-generated images with harm to real children. Absent this nexus, the law does not withstand constitutional scrutiny."⁸

Additionally Free Speech held the phrases "appears to be a minor" and "'convey[s] the impression' that the material is a minor engaged in explicit sexual activity" are vague and over broad and thus do not meet the requirements of the First Amendment. The reasoning being that "[t]he two phrases in question are highly subjective. There is no explicit standard as to what the phrases mean. The phrases provide no measure to guide an ordinarily intelligent person about prohibited conduct and any such person could not be reasonably certain about whose perspective defines the appearance of a minor, or whose impression that a minor is involved leads to criminal prosecution."⁹

Free Speech does not support appellant's position in the appeal. The Free Speech court stated that legislation "may serve its legitimate purpose in protecting children from abuse by prohibiting pornography actually involving minors."¹⁰ Even if the depiction involves computer generated images, the court stated "our holding demonstrates that if morphed computer images are of an identifiable child, the statute is enforceable because there is then the potential for harm to a real child." ¹¹

It is noteworthy that nowhere in their opinion did the court condemn a statutory construction similar to 311.11. The California statute applies to the possession of material "the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally...