The Ninth Circuit compared the federal child pornography possession statute (18 U.S.C. § 2252(a)(4)(B)) and the California child pornography possession statute (California Penal Code § 311.11(a)) and determined that the California statute encompassed broader conduct than the federal statute.  Specifically, the federal definition of “sexually explicit conduct” includes only five types of conduct: (i) sexual intercourse, (ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic abuse, and (v) lascivious exhibition of the genitals or pubic area.  The California statute includes all of these acts, but also includes include “any lewd or lascivious sexual act," which includes any touching on any part of a child's body.  This catch-all provision renders the California statute broader than the federal analogue, and thus, it is not a categorical match to the federal definition of possession of child pornography.  Moreover, because California juries are not required to unanimously agree on what sexual conduct appears in a particular image in order to convict a defendant of possession of child pornography, the statute is not divisible, and the modified categorical approach may not be used.

The full text of Chavez-Solis v. Lynch can be found here: