Can a defendant be convicted of possessing child pornography with a prior conviction requiring registration as a sex offender?

" ' "Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" [Citation.]' " (People v. Upsher, supra, 155 Cal.App.4th at p. 1319, quoting People v. Medina (2007) 41 Cal.4th 685, 701.) "When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]" (People v. Reed (2006) 38 Cal.4th 1224, 1227.) "However, an exception to this general rule allowing multiple convictions prohibits multiple convictions based on necessarily included offenses. [Citations.]" (People v. Medina, at p. 701.)

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As we have already observed both parties agree that assuming counts one and two are both substantive offenses, then possession of child pornography (count one) is a lesser included offense of possession of child pornography with a prior conviction requiring registration as sex offender (count two). The greater offense of a violation of section 311.11(b) cannot be committed without also committing a violation of section 311.11(a). (See People v. Upsher, supra, 155 Cal.App.4th at pp. 1320-1321.)

" 'When the jury expressly finds defendant guilty of both the greater and lesser offense . . . the conviction of [the greater] offense is controlling, and the conviction of the lesser offense must be reversed.' . . ." (People v. Milward (2011) 52 Cal.4th 580, 589, quoting People v. Moran (1970) 1 Cal.3d 755, 763.)