P. v. Armstrong
On April 25, 2005, the Santa Clara County District Attorney charged defendant Brian Jerome Armstrong with committing a lewd and lascivious act on a child under 14 (Pen. Code, 288, subd. (a); count one), with employing, persuading or inducing a minors involvement in modeling, posing or performing sexual conduct (Pen. Code, 311.4, subd. (c); count two), and with four counts of misdemeanor possession of child pornography (Pen. Code, 311.11, subd. (a); counts three through seven).[1] The jury found defendant guilty on all counts. The trial court sentenced defendant to two years in prison on count one and three years on count two, for a total of five years in state prison. On appeal, defendant contends: (1) the search warrant executed on February 12, 2004 was not supported by probable cause; (2) there is insufficient evidence to support the conviction under count two; (3) evidence submitted on count two was obtained in violation of his rights under Massiah;[2] (4) his counsel provided ineffective assistance by failing to move to suppress evidence obtained in violation of his Sixth Amendment rights under Miranda;[3] (5) evidence admitted pursuant to Evidence Code section 1108 should have been excluded; and (6) the trial court committed instructional error by failing to specify the sexual offenses referenced in CALJIC No. 2.50.01. We find insufficient evidence to support defendants conviction for a violation of section 311.4, but reject defendants remaining contentions. Court reverse the judgment and remand for resentencing.
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