Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC586279
OPINION
RUSHING, P.J.
Statement of the Case
After a court trial, the court found defendant Javier Buenrostro guilty of attempting to commit a lewd and lascivious act on a child under 14, attempting to distribute harmful matter to a minor, and driving with a suspended or revoked license. (Pen. Code, §§ 664, 288, subd. (a), 288.2, subd. (b) ; Veh. Code, § 14601.1, subd. (a).) The court suspended imposition of sentence, placed defendant on probation for three years, and ordered him to pay various fines and fees, including a probation supervision fee of $64 per month. (§ 1203.1b.)
All further unspecified statutory references are to the Penal Code.
On appeal from the judgment, defendant claims there was insufficient evidence to support his conviction for attempting to distribute harmful matter, and the court erred in requiring him to pay a probation supervision fee as a condition of probation.
Defendant initially claimed that the judgment must be reversed because he did not personally and expressly waive his right to a jury trial. However, having reviewed the record more closely, defendant has abandoned that claim.
We affirm the judgment.
Facts
On March 22, 2005, defendant entered an internet chat room and began a conversation with Sergeant Daryl Sequeira of the Milpitas Police Department, who was posing as a 13-year-old girl, calling herself “sweetsuzzi14.” Defendant asked “Suzzi” if she liked to party. She said she was not experienced and asked what he had in mind. He said he would start kissing and holding her, then kiss and suck her nipples, go down and kiss her slowly on the belly button, then continue down to her “pussy” and kiss it and lick it. He would then “pull out his dick” and have her suck on it like “a lollypop,” and when she was done, he would spread her legs and “slide [his] dick in nice and slow.” “Suzzi” said he would have to wear protection, and he agreed. She asked him to bring wine coolers, condoms, and “watermelon bubblishous” gum. He again agreed.
The next day, “Suzzi” and defendant arranged to meet. He was going to pick her up in his gold colored jeep at the Days Inn, where she said she would wait for him.
Sergeant Sequeira and other detectives went to the location and established surveillance. Sergeant Sequeira observed defendant approach the motel in a gold jeep. He drove slowly past the motel, circled around, passed it again, and then drove away. Police stopped him and searched his jeep, finding wine coolers, beer, condoms, and watermelon bubblegum. Defendant was arrested and later admitted talking to “Suzzi” about having sex. However, he denied that he intended to engage in sexual activity with her.
Sufficiency of the Evidence
Defendant contends there was insufficient evidence to support his conviction for distributing harmful matter over the internet.
Section 288.2, subdivision (a) provides, in relevant part, “Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means . . . any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense . . . .” (Italics added.)
Section 313, subdivision (a) provides, “ ‘Harmful matter’ means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” (Italics added.)
Defendant claims the record does not support a finding that he distributed “harmful matter” as defined by section 313 because there is no evidence that his “description of sexual conduct was done in a patently offensive way applying contemporary community standards.” He asserts that the conduct he described “consisted of common, heterosexual acts,” and his descriptions were “not particularly graphic and used no profanity.” He further notes that he did not distribute “graphic descriptions or images of child pornography, sexually explicit photographs, or bestiality . . . .” In defendant’s view, his “Internet communications with ‘Suzzi’ involved language commonly heard both over the radio and on public streets; as such, though offensive to some, perhaps many individuals, the impact of [his] words under contemporary community standards on the average person are not ‘patently offensive.’ ” We disagree.
Whether a matter is patently offensive under contemporary community standards is essentially a question of fact. (Miller v. California (1973) 413 U.S. 15, 30; Jenkins v. Georgia (1974) 418 U.S. 153, 159-160; see In re George T. (2004) 33 Cal.4th 620, 633.)
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Thus, here we simply ask whether a rational trier of fact could have found defendant’s description patently offensive under contemporary community standards. In this regard, the primary focus in applying the “contemporary community standards” test is how the material would be judged by its impact on an average person, rather than a particularly susceptible or sensitive person or a totally insensitive one. (Miller v. California, supra, 413 U.S. at p. 33; People v. Wiener (1979) 91 Cal.App.3d 238, 245.)
We conclude that defendant’s descriptions of the sexual acts he planned to perform and have performed on him constituted evidence sufficient to establish the “harmful matter” element of the offense. We disagree with defendant’s suggestion that his descriptions of sexual activity are the sort of thing that one commonly hears over the radio and on the streets. In any event, although an average person might not consider similar descriptions involving consenting adults to be too offensive, defendant was describing acts with a 13-year-old girl. In our view, the court could reasonably find that an average person would consider his graphic descriptions of lewd touching, oral copulation, and sexual intercourse with a young girl, along with his crude references to his and her body parts, to be patently offensive.
Defendant asserts that the prosecution presented no evidence establishing the limits of candor concerning sexual activity under current community standards. Thus, he argues that the prosecution failed to prove that his descriptions exceeded those limits and were “patently offensive.”
We note, however, that the acts that defendant described—lewd touching, oral copulation, and sexual intercourse with a minor under the age of 14—are all illegal and punishable as felonies even when they are consensual. (§§ 288, subd. (a) [lewd conduct]; 288a, subd. (c)(1) [oral copulation]; 261.5, subd. (a) [unlawful sexual intercourse].) Where society in general considers sexual conduct with minors so harmful and offensive as to be punishable, we do not believe that expert testimony is necessary to establish that graphic descriptions of such conduct exceed limits of candor under current community standards. Indeed, at trial, defense counsel did not argue that defendant’s descriptions were within the normal limits of conversation about sexual activity or suggest that they would not be patently offensive to an average person. Nor did counsel argue that the prosecution had failed to prove that they constituted “harmful matter” as defined in section 313. Rather, the defense to this charge was that the prosecution had failed to prove that defendant acted with intent to seduce.
Probation Supervision Costs
Defendant contends that the court erred in ordering him to pay a monthly supervision fee as a condition of probation.
Section 1203.1b provides, “(a) In any case in which a defendant is convicted of an offense and is the subject of any preplea or presentence investigation and report, whether or not probation supervision is ordered by the court, and in any case in which a defendant is granted probation or given a conditional sentence, the probation officer, or his or her authorized representative, taking into account any amount that the defendant is ordered to pay in fines, assessments, and restitution, shall make a determination of the ability of the defendant to pay all or a portion of the reasonable cost of any probation supervision or a conditional sentence, of conducting any preplea investigation and preparing any preplea report pursuant to Section 1203.7, of conducting any presentence investigation and preparing any presentence report made pursuant to Section 1203, and of processing a jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies. The reasonable cost of these services and of probation supervision or a conditional sentence shall not exceed the amount determined to be the actual average cost thereof. A payment schedule for the reimbursement of the costs of preplea or presentence investigations based on income shall be developed by the probation department of each county and approved by the presiding judge of the superior court. The court shall order the defendant to appear before the probation officer, or his or her authorized representative, to make an inquiry into the ability of the defendant to pay all or a portion of these costs. The probation officer, or his or her authorized representative, shall determine the amount of payment and the manner in which the payments shall be made to the county, based upon the defendant's ability to pay. The probation officer shall inform the defendant that the defendant is entitled to a hearing, that includes the right to counsel, in which the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver.”
It is settled that probation supervision costs imposed under section 1203.1b “may not be a condition of probation as the costs are collateral and the statute itself provides for enforcement of the order by civil collection.” (People v. Hart (1998) 65 Cal.App.4th 902, 907; People v. Bennett (1987) 196 Cal.App.3d 1054, 1056-1057; People v. Wilson (1982) 130 Cal.App.3d 264, 268-269.)
Initially, we note that in general, absent evidence to the contrary, we presume that “official duty has been regularly performed.” (Evid. Code, § 664.) Moreover, the existence of error “ ‘is never presumed, but must be affirmatively shown . . . . [A]ll presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.’ ” (People v. Green (1975) 95 Cal.App.3d 991, 1001, quoting People v. Clifton (1969) 270 Cal.App.2d 860, 862; In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452; see People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523, quoting People v. Garcia (1987) 195 Cal.App.3d 191, 198 [“ ‘We must indulge in every presumption to uphold a judgment, and it is defendant’s burden on appeal to affirmatively demonstrate error—it will not be presumed’ ”]; People v. Nitschmann (1995) 35 Cal.App.4th 677, 684 [“Error is never presumed and appellant has the burden to show error”].) This rule requires us to conclude, in the absence of an affirmative showing to the contrary, that the trial court did the right thing for the right reasons.
With this in mind, we note that at sentencing on May 11, 2006, the court announced that it had read the probation report, which recommended that defendant be referred to the Department of Revenue for a determination of his ability to pay fines and fees and also recommended that the court impose a monthly probation supervision fee up to $64. The report did not expressly recommend or suggest that payment of the fee be made a condition of probation.
The court referred defendant to the Department of Revenue. It then warned defendant that he shall not possess or consume alcohol, illegal drugs, firearms, or ammunition; and shall submit to chemical testing, enter a substance abuse and psychological treatment programs; submit to warrantless searches at any time; seek gainful employment except at a place that involves the supervision of minors; provide biological samples; and register under section 290.
The court also ordered defendant to pay a penalty assessment under section 290.3; not use a computer to communicate with minors or access pornography; and pay a court security fee, restitution fund fines, a criminal justice administration fee, a presentence investigation fee, and a probation supervision fee.
After a discussion of attorney fees, which would also require a finding of ability to pay, the court reiterated that it was referring the case to the Department of Revenue for a determination. The court advised defendant that if he disagrees with its determination, he could return to court for a hearing. That said, the court then stated, “Sir, as to the condition of probation, do you accept those conditions.” Defendant said that he did.
The court’s last statement does not establish that it imposed the cost of probation supervision as a condition of probation. In our view, the statement changed the subject, distinguishing orders that required a determination of defendant’s ability to pay, which he could challenge, from the conditions of probation to which defendant had to agree if he wanted to be placed on probation. Moreover, the minute order does not state that the supervision fee was imposed as a condition of probation. Accordingly, we find no error.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.