Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. SCD 202883 of San Diego County, Cynthia Bashant, Judge.
AARON, J.
I.
INTRODUCTION
Defendant Eugene Kiser appeals from his judgment of conviction and sentence. A jury convicted Kiser of showing harmful content to a minor with the intent to seduce the minor. On appeal, Kiser argues that there is insufficient evidence that he knew that the victim was a minor and/or that he intended to seduce her when he showed her pornographic videos. Kiser also challenges his sentence, arguing that the trial court made improper dual use of two of his prior prison convictions in imposing both an upper term sentence as well as two one-year enhancements. Kiser asserts that his case should be remanded to the trial court for resentencing.
We conclude that there is sufficient evidence to support the jury's verdict. We further conclude that there is no need to remand the case for resentencing, since the trial court relied on a number of proper factors, other than Kiser's prior prison convictions, in imposing the upper term sentence. We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution's case
On November 14, 2006, at approximately 10:00 p.m., Kiser was walking toward a bus stop when he passed the victim, Sabrina B. Sabrina, who was 13 years old, had attended a high school volleyball dinner earlier that evening and had then gone to visit a friend. Sabrina was walking to a trolley station to take a trolley home for the night when she encountered Kiser.
After passing Sabrina, Kiser turned around and began to follow her. Kiser said, "Hi." Sabrina did not respond and continued walking toward the trolley station. Kiser followed her to the station. When she arrived at the station, Sabrina sat down. Kiser sat next to her and struck up a conversation. They discussed Sabrina's volleyball trophy and a volleyball bag that she was carrying. Kiser asked Sabrina where she went to school. Sabrina told him that she was a freshman at San Diego High School.
Sabrina felt uncomfortable so she got up and walked over to a railing. Kiser pulled out a Game Boy system and began to play it while still talking to Sabrina. Kiser asked her if she "was a good girl or a bad girl." The question made Sabrina uncomfortable and she did not answer.
Sabrina also testified, "I knew he was asking me sexually if I was a good girl or a bad girl."
When the trolley arrived, both Sabrina and Kiser got on. Kiser sat across from Sabrina and continued talking to her. At some point, Kiser pulled out his cellular telephone and started to look through it. He then held the telephone out to Sabrina and showed her videos on the telephone. The videos depicted close-up shots of women performing oral sex on men, women engaging in sexual intercourse with men, and people performing other sexual acts. While Kiser was showing Sabrina the videos, he moved from the seat across from her to a seat next to her. When he sat next to her, his thigh was touching Sabrina's thigh. Kiser held the telephone approximately four inches from Sabrina's face so that she could not help but see the videos.
Kiser asked Sabrina if she "liked" the videos, and she responded, "No." Kiser ultimately showed Sabrina approximately eight videos—four pornographic videos, three videos of Kiser with one of his cars, and one video of Kiser inside his house. He showed her at least two of the pornographic videos more than once.
Sabrina was not sure at what point she told Kiser that she was 13 years old, although she thought that it was either before he began showing her the videos, or toward the end of the time during which he was showing her the videos. Kiser told her that 13 year olds "don't come in [her] size," apparently because Sabrina was 5'11" tall at the time. Kiser also told her that he thought that she was 17 or 18 years old. Kiser continued to sit next to Sabrina showing her videos until the trolley reached Sabrina's stop. Sabrina did not tell anyone on the trolley what was happening because she was afraid of Kiser and was "worried about what he might do to [her]."
Kiser followed Sabrina when she got off of the trolley. As Sabrina walked away, Kiser said, "[Y]ou don't have to be all shy." Kiser remained at the station and did not follow Sabrina home.
At approximately 10:45 p.m., two police officers detained Kiser at the trolley station where Sabrina and Kiser had gotten off the trolley. Sabrina identified Kiser as the person who had shown her the pornographic videos. After a police officer read Kiser his Miranda rights, Kiser said that he thought Sabrina was 17 years old.
Miranda v. Arizona (1966) 384 U.S. 436.
2. The defense
Kiser testified in his own defense. Kiser said that he had seen Sabrina on the bus talking with a man who Kiser believed was a drug dealer. Kiser acknowledged that he had asked Sabrina whether she was a "good girl or bad girl," but said that he asked her that because she had been talking with "bad company" on the bus. According to Kiser, he was scrolling through pictures on his cellular telephone to find photographs of his car when the pornographic images came up on the screen. He said that after Sabrina told him her age, he did not show her any videos, and that they rode together on the trolley for another 10 minutes. Kiser admitted that he told the police officer at the time that he believed Sabrina was 17 years old.
B. Procedural background
On December 4, 2006, the San Diego County District Attorney filed an information charging Kiser with showing harmful matter to a minor with the intent of seducing the minor (Pen. Code, § 288.2, subd. (a)). The information also alleged that Kiser had suffered two prior prison convictions (§§ 667.5, subd. (b), 668) and one strike conviction (§§ 667, subds. (b)-(i), 1170.12, and 668.)
Further statutory references are to the Penal Code unless otherwise indicated.
On February 27, 2008, a jury found Kiser guilty of the charged offense. Kiser admitted the prior prison conviction allegations and the strike prior allegation.
On December 19, 2008, the trial court sentenced Kiser to a total of eight years in prison, which included the upper term of three years, doubled, as a result of his prior strike conviction, plus an additional year for each of the two prison prior convictions.
Kiser personally filed a timely notice of appeal on January 8, 2009. Appointed counsel for Kiser filed a second notice of appeal on January 15, 2009.
III.
DISCUSSION
A. Sufficiency of the evidence
Kiser argues that the evidence presented at trial is insufficient to establish that he harbored any intention to seduce Sabrina, knowing that she was a minor.
When a defendant challenges the sufficiency of the evidence to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) "Unless it is clearly shown that 'on no hypothesis whatever is there sufficient substantial evidence to support the [jury's] verdict[s,]' we will not reverse. [Citation.]" (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
Section 288.2, subdivision (a) provides in pertinent 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... 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 a county jail." Kiser specifically challenges the sufficiency of the evidence to support the findings that he intended to seduce Sabrina, and that he knew or failed to reasonably ascertain that Sabrina was a minor.
Section 313 provides: "(a) '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."
In interpreting subdivision (b) of section 288.2, which makes it unlawful to distribute, send, or exhibit harmful matter by electronic mail or the Internet and includes the same "for the purpose of seducing a minor" language as subdivision (a), the court in People v. Jensen (2003) 114 Cal.App.4th 224, 239-240, clarified the meaning of "seducing," as follows: "[T]he 'seducing' intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and a minor." Kiser argues that there is insufficient evidence to support a finding that he was attempting to persuade Sabrina to engage in any sexual conduct with him, since nothing he said or did indicates that this was his intention. We disagree.
Kiser deliberately made contact with Sabrina, and even changed his course, in order to follow her to the trolley station. He inquired as to whether someone who had been on the bus was her boyfriend, and then asked her whether she was, "a good girl or a bad girl." Sabrina testified that this question made her uncomfortable, and that she understood it to be a sexual question. The jury could have inferred that Kiser intended that the question have a sexual connotation. Kiser then followed Sabrina onto the trolley, where he sat across from her and continued to talk to her. He showed Sabrina pornographic videos, moved to sit next to her, and sat so close that his thigh touched hers, all while displaying the pornographic videos just inches from Sabrina's face. Kiser continued to show Sabrina videos for 10 minutes, until she got off the trolley. Kiser asked Sabrina whether she liked the video of people engaging in sexual intercourse. After he followed her off the trolley, he told her that she did not have "to be all shy." Sabrina testified that Kiser's showing her "the porn videos... indicated [to her] that he wanted to do something [sexual with her]." From all of this evidence, a reasonable trier of fact could infer that Kiser was attempting to entice Sabrina into engaging in a sexual act with him.
The jury also had ample evidence from which it could reasonably have concluded that Kiser knew, or failed to use reasonable care to ascertain, that Sabrina was a minor. When Kiser first engaged Sabrina in conversation, she informed him that she was a freshman in high school. It would be reasonable to infer that Kiser possessed the common knowledge that the vast majority of freshman in high school are under the age of 18. Further, Kiser admitted to Sabrina, and to the police officers who arrested him, that he believed that Sabrina was 17 years old, thus acknowledging that he believed Sabrina was a minor. At a minimum, the jury could have easily concluded that Kiser failed to use reasonable care to ascertain Sabrina's age. At no point did Kiser ask Sabrina how old she was, despite having been informed prior to showing her the pornographic videos that she was a freshman in high school, and despite his stated belief that she was under the age of 18. There is clearly sufficient evidence to support the jury's finding that Kiser either knew that Sabrina was a minor, or that he failed to use reasonable care to determine Sabrina's age.
B. Imposition of an upper term sentence
Kiser contends that the trial court erred in imposing the upper term by relying on improper aggravating factors to support that decision. Specifically, Kiser argues that the court improperly used his prior convictions both as the basis for two additional one-year enhancement terms, and also to support the court's decision to impose an upper term sentence. He further contends that the one remaining aggravating factor not related to his prior convictions was not found true by a jury, and that the trial court therefore could not properly rely on that factor to impose an upper term.
The court explained its reasons for imposing the upper term as follows:
"I do think the upper term is appropriate in this case and that's in part because of his priors. He has numerous priors. He was on parole when the crime was committed. His prior performance when he was on parole and probation was unsatisfactory and the planning that went into this. He clearly had the videos, was looking for someone and I think given that the upper term is appropriate."
Kiser contends that the trial court "used" his prior convictions to impose an upper term and also to impose two one-year prison prior enhancements, in violation of the prohibition against dual use of enhancements in section 1170, subdivision (b). Section 1170, subdivision (b) provides, "The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law."
Kiser appears to acknowledge that the trial court mentioned additional factors, beyond the mere fact of his prior prison convictions, in support of its decision to impose the upper term. He argues, however, that with the exception of the element of "planning," all of the factors that the court mentioned (i.e., his "numerous priors," the fact that he was "on parole when the crime was committed," and the fact that his performance on probation and parole was unsatisfactory) are essentially aspects of the "fact" of his prison priors. Kiser further contends that the court could not properly rely on the one remaining factor—the "planning" factor—to support the upper term under Cunningham v. California (2007) 549 U.S. 270 (Cunningham), because a jury did not find that factor true. We reject Kiser's argument.
Even if we assume that the trial court's reference to Kiser's "numerous priors" as a factor supporting imposition of the upper term related solely to Kiser's prior prison convictions and was thus improper, this would not necessarily require resentencing. " 'When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.' [Citation.]" (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) This is because "a single valid factor in aggravation is sufficient to justify an upper term." (People v. Forster (1994) 29 Cal.App.4th 1746, 1759.) Here, the trial court identified at least three additional factors to support the imposition of an upper term sentence beyond Kiser's prior prison convictions.
First, although Kiser argues otherwise, the fact that Kiser was on parole at the time of the current offense and that he performed unsatisfactorily on probation and/or parole are not aggravating factors that are subsumed under Kiser's prior prison convictions. "Parole status and performance on parole are distinct aggravating factors. Each is distinct from the aggravating factors of having numerous prior convictions and having served prior prison terms. [Citation.]" (People v. Yim (2007) 152 Cal.App.4th 366, 369; see also People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 ["It is well settled that it is not a dual use of facts to consider one's performance on parole notwithstanding consideration of the underlying conviction as an enhancement. [Citation.]"].)
The trial court also cited the fact that Kiser's offense indicated a certain level of planning as a factor in aggravation in deciding to impose the upper term. Kiser contends that use of this factor violates Cunningham because that factor was not found true by a jury. In making this argument, Kiser misapprehends the current state of California sentencing law. Before Kiser was sentenced, the legislature amended the Determinate Sentencing Law (DSL) in response to Cunningham, setting the upper term as the statutory maximum. (People v. Sandoval (2007) 41 Cal.4th 825, 843-845.) This amendment permits courts to exercise discretion when selecting among the lower, middle, and upper terms. (Ibid.) The Supreme Court has held that "it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments, regardless of whether the offense was committed prior to the effective date of the amendments." (People v. Jones (2009) 178 Cal.App.4th 853, 866-867.) It is thus clear that the trial court acted within its discretion in relying on the fact that Kiser's offense indicated planning in imposing the upper term, despite the fact that the jury did not make any finding with respect to that factor.
The trial court relied on at least three aggravating factors, beyond the fact that Kiser had "numerous priors," in imposing the upper term. Under these circumstances, we conclude that it is not reasonably probable that the trial court would have imposed a lesser term if it had known that one of the factors it relied on was improper. Thus, any error arising from dual use of Kiser's prison priors was harmless, and resentencing is not required.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR: McCONNELL, P. J.HALLER, J.