People v. Gerber

6-8-2011 California:

People v. Gerber
196 Cal.App.4th 368 (2011)

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 [196 Cal.App.4th 372] 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.

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E. No-contact Order

At sentencing, the trial court ordered defendant to have no contact with the victim or her family. Defendant argues that the order is invalid because it was not authorized by section 1202.05 or any other statute. Defendant was not convicted of any of the sex offenses enumerated by section 1202.05, which presently authorizes courts to prohibit visitation between a defendant sentenced to state prison and the child victim. The People concede error and ask this court to strike the order. We agree this is the appropriate remedy.

Simants v State

7-3-2014 Alaska:

Simants v State

Carrie D. Simants was thirty-three years old when she had sexual intercourse with R.H., a seventeen-year-old boy who was living in her home. At the time, R.H. had been adjudicated a delinquent, and Simants had agreed to oversee his compliance with his delinquency case plan. A jury therefore found that Simants was in a "position of authority" over R.H. and convicted her of one count of second-degree sexual abuse of a minor.1 Simants was sentenced to 8 years with 3 years suspended (5 years to serve) and 10 years' probation for this offense.

On appeal, Simants challenges her sentence on three grounds. She asserts that the superior court erred by rejecting the two statutory mitigating factors she proposed at sentencing. She argues, in the alternative, that the court should have referred her case to the statewide three-judge sentencing panel for consideration of a sentence below the applicable presumptive range. Lastly, she challenges a condition of probation that could potentially preclude her from living with her own children after her release.

For the reasons explained below, we conclude that the superior court applied the wrong legal analyses when it rejected the two statutory mitigating factors and imposed the challenged probation condition.

Accordingly, we vacate the probation condition and remand this case to the superior court for further proceedings consistent with this opinion. Because Simants may be resentenced, we do not reach the merits of her three-judge sentencing panel arguments at this time.

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Conclusion

We VACATE the special condition of probation limiting Simants from residing in a home where a minor is present to the extent that the condition bars her from living with her own children. If the State wishes to renew its request for a probation condition that restricts Simants's contact with her children, the State must affirmatively show

(1) that there is good reason to believe Simants will pose a danger to her children when she is released from prison, and

(2) that the State's proposed condition of probation is narrowly tailored to avoid unnecessary interference with Simants's relationship with her children.

We retain jurisdiction.

State v Cobler

3-24-2010 Idaho:

State v Cobler
229 P.3d 374 (2010)

Brian C. Cobler appeals from the judgment of conviction and sentence entered upon his guilty plea to sexual battery of a minor, sixteen or seventeen years of age. He challenges the sentence, the denial of his Idaho Criminal Rule 35 motion for reduction of the sentence, and the order denying his motion to modify a no contact order that prohibited contact with any minors.

The order denying the motion to modify the no contact order is vacated and the case is remanded for further proceedings on that issue.

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We affirm the judgment of conviction and sentence, as well as the district court's denial of Cobler's Rule 35 motion. Because the district court abused its discretion in denying Cobler's motion to modify the no contact order, we vacate the district court's denial of that motion and remand the case for proceedings consistent with this opinion.2

Doe v. Annucci

6-18-15 New York:

Doe v. Annucci
No. 14 Civ. 2953 (PAE).

Plaintiff John Doe was convicted of sexual offenses against a teenage girl and served more than eight years in prison. After Doe was released on parole, Doe's wife, Jane Doe, gave birth to a son, M.S. In the years that followed, the Department of Corrections and Community Supervision ("DOCCS") applied one of Doe's special parole conditions to bar him, during two distinct time periods, from having any contact with his infant son. These periods totaled more than one year.

John Doe, Jane Doe, and M.S. bring suit against eight state personnel associated with DOCCS, claiming that DOCCS's actions violated their rights to substantive due process, intimate association, and procedural due process, and that each individual defendant personally participated in these actions. Seven of the eight defendants now move to dismiss, asserting mootness, immunity, and failure to state a claim.

For the following reasons, the motions to dismiss are granted as to defendants Rebecca and Rennie Rodriguez for lack of personal involvement in the alleged constitutional violations, but are denied as to all other defendants.

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