Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC260075
Premo, J.
Defendant Richard G. Nelson III entered no-contest or guilty pleas to lewd act on a child under 14, oral copulation on a child under 14 more than 10 years younger, and possession of child pornography. The trial court placed defendant on probation. It later revoked probation and sentenced defendant to six years and eight months in prison upon a petition alleging that defendant had (1) violated the standard obey-all-laws condition of probation by displaying lewd material to a minor (Pen. Code, § 288.2, subd. (a)) and indulging in lewd practices in the presence of a minor (§ 273g), and (2) twice violated a no-computer-access condition of probation. On appeal, defendant contends that (1) insufficient evidence supports the findings that he violated sections 288.2 and 273g, (2) section 273g is unconstitutionally vague, and (3) he received ineffective assistance of counsel because his counsel failed to challenge the no-computer-access condition as overbroad and unreasonable. We affirm the judgment.
Further unspecified statutory references are to the Penal Code.
Background
While investigating the underlying offenses, police contacted defendant and asked that he meet them at his home for an interview. Defendant first went to his dance studio, cut the wires to his computer CPU, took away the CPU and a binder of child pornography that he had printed from the internet, and disposed of the CPU and binder. During the police interview, defendant admitted having a problem in being attracted to children and needing to deal with the problem before he molested other children. When someone later found the binder and gave it to the police, defendant admitted that the binder was his.
While on probation, defendant accompanied his wife to her aunt’s residence so the wife could cut and style the aunt’s hair. He brought his wife’s laptop computer into the home and settled on the living room couch with the aunt’s seven-year-old son. He turned on the computer, inserted a chip into the computer, and accessed a Web site. The son observed naked girls and boys “dancing in a bad way,” touching each other “below the belt and behind the back,” and kissing. Defendant gave the son a piece of paper upon which he had written “hotgirlskissing.net” and told the son that he would give him anything if the son would look at the Web site when he “wasn’t there.” Two months later, the son looked at the Web site and the aunt’s husband discovered him doing so. The son explained that defendant had taught him to access the Web site. The aunt viewed the Web site and testified: “I saw naked girls, kissing girls, and I saw naked body pictures, I saw breasts, and penises and bottoms, and people doing actual, um, sexual acts to each other orally.”
The trial court focused as follows: “[F]or purposes of this hearing, we are really concerned with the allegation that he committed potential violations of Penal Code Section 288.2[,] subdivision A and [section] 273G on March 24th of 2008.” And it concluded as follows: “Based upon my evaluation as to what I believe happened here, I believe that, in fact, the allegation that the defendant did what is alleged is true. That he did, in fact, um, show [the son] on this date and time in question this obscene pornographic material from the Internet. And that constitutes, obviously, not only a violation of the law, but certainly his terms and conditions of probation. [¶] And, again, I’m telling you that my decision is certainly a factor, but it is certainly influenced in a great measure by [the son’s] testimony. Approximately two months later, when he’s caught by the father apparently accessing pornographic sites, he says at the time that this is because [defendant] gave him those website, um, IDs, if you will, that allowed him the opportunity, and he was caught. And he explained what happened. I think it was very credible as to what he had to say.”
Displaying Lewd Material--Indulging in Lewd Practices
Section 288.2, subdivision (a), provides in material part: “Every person who, with knowledge that a person is a minor,... knowingly... exhibits... 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 and shall be punished by imprisonment in the state prison or in a county jail.” Section 313, subdivision (a), defines “harmful matter” as follows: “ ‘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.” The statutory definition of “harmful matter” essentially tracks the three-prong test for obscenity articulated by the United States Supreme Court in Miller v. California (1973) 413 U.S. 15, 24 (appeals to prurient interests applying contemporary community standards of average person; depicts specifically defined sexual conduct in a patently offensive way; lacks serious literary, artistic, political, or scientific value) “with the exceptions that under section 313 the relevant community standard by which the material is evaluated is ‘statewide’ and, in context, the work must lack serious literary, artistic, political, or scientific value for minors.” (People v. Dyke (2009) 172 Cal.App.4th 1377, 1383.)
Section 273g provides: “Any person who in the presence of any child indulges in any degrading, lewd, immoral or vicious habits or practices, or who is habitually drunk in the presence of any child in his care, custody or control, is guilty of a misdemeanor.”
Citing the substantial-evidence scope of review that applies following a criminal conviction where the defendant’s guilt must be proven beyond a reasonable doubt, defendant contends that the trial court’s finding of probation violation must be reversed because there was insufficient evidence that he displayed obscene matter within the meaning of section 288.2, subdivision (a). Using the same reasoning, defendant also argues that he could not have violated section 273g unless the evidence showed that the lewd practice in question was showing obscenity. He cites Dyke, an appeal from a criminal conviction, for the propositions that nudity is not necessarily obscene and nothing in the record allows a conclusion that the matter in question here lacked serious literary, artistic, political, or scientific value for minors. Defendant’s analysis is erroneous.
Section 1203.2, subdivision (a), authorizes the trial court to revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his... probation.”
“ ‘The judge is not determining whether the defendant is guilty or innocent of a crime. Rather, he [or she] must determine whether the convicted offender “can be safely allowed to return to and remain in society.” ’ ” (In re Coughlin (1976) 16 Cal.3d 52, 57.) As a result, “evidence which is insufficient or inadmissible to prove guilt at trial nevertheless may be considered in determining whether probation should be revoked.” (Id. at p. 58.)
The facts supporting probation revocation need only be proven by a preponderance of the evidence, and more lenient rules of evidence (as compared to criminal trials) apply. (People v. Rodriguez (1990) 51 Cal.3d 437, 447 (Rodriguez).) This is because “ ‘[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special[] restrictions.’ ” (Id. at p. 442.) It is “ ‘not part of a criminal prosecution.’ ” (Ibid.) “ ‘The court... need not wait until the defendant proves, by new acts of criminality, that the hope and expectation were unfounded. Acts short of criminality, or evidence which leaves a criminal violation still uncertain, may well, in the judgment of the court..., indicate that the hoped for rehabilitation is on the road to complete failure and that a more restrictive process is required both to protect society and to assist the defendant toward ultimate rehabilitation.’ ” (In re Coughlin, supra, 16 Cal.3d at pp. 59-60, italics removed.)
Trial courts have “very broad discretion in determining whether a probationer has violated probation.” (Rodriguez, supra, 51 Cal.3d at p. 443.) “Such discretion ‘implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice.’ ” (Id. at p. 445.) “ ‘[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.’ ” (Id. at p. 443.) “ ‘To reverse a [probation] revocation order, the probationer must establish that the [trial] court abused its discretion.’ ” (Id. at p. 442.)
The obstacle to defendant’s claim is the low standards of culpability and proof applicable at probation revocation proceedings, points not confronted by defendant’s briefing. Again, in a probation revocation proceeding, the trial court need only have “reason to believe” (§ 1203.2, subd. (a)) that the defendant violated probation. And, in evaluating the evidence on that point, it need only apply the preponderance-of-the-evidence standard--the same standard applied in ordinary civil actions. (Rodriguez, supra, 51 Cal.3d at pp. 440-447.) Under that standard, the evidence need only show that “ ‘ “the existence of a fact is more probable than its nonexistence.” ’ ” (In re Angelia P. (1981) 28 Cal.3d 908, 918; see also, e.g., CACI No. 200 [“more likely to be true than not true”]; CALCRIM No. 852 [“more likely than not”].) In other words, to justify revoking probation for violating the obey-all-laws condition of probation, a trial court need only conclude that a defendant probably violated the law.
Here, the trial court could have rationally concluded that defendant probably showed obscene material to the son when he displayed the Web site material.
Defendant admitted being sexually attracted to children. He pleaded to committing sex acts on children and possessing child pornography obtained from the Internet. He possessed a computer and shared his Internet viewing of naked, dancing, and kissing children with a child. He then directed this child to the hotgirlskissing.net Web site that displayed naked kissing girls, penises, and oral sex. Stated another way, given defendant’s sexual problem, the sexual nature of his convictions, the pornography conviction’s association with the Internet, his use of the computer in the child’s presence, and the probable obscenity of the hotgirlskissing.net Web site, one could rationally conclude that the naked-dancing-kissing-children Web site, which defendant shared with the child, probably displayed obscene material.
Defendant simply fails to carry his burden to demonstrate an abuse of discretion.
Secondary Claims
The trial court revoked probation because defendant violated the law by committing the act in question. Since the act violated section 288.2, subdivision (a), it is immaterial whether the act also violated section 273g. We therefore need not address defendant’s contention that that section 273g is unconstitutional.
The trial court did not revoke probation because defendant violated the no-computer-access condition of probation. We therefore need not address defendant’s contention that trial counsel was constitutionally ineffective for failing to challenge the no-computer-access condition of probation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Elia, J.