Opinion
E051822 Super.Ct.No. RIF153259
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. AARON EDWARD LEVERENZ, Defendant and Appellant.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Willaim M. Wood, A. Natasha Cortina, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed in part as modified and reversed in part with directions.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Willaim M. Wood, A. Natasha Cortina, and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant, Aaron Edward Leverenz (defendant), guilty as charged of three counts of attempted seduction of a minor in violation of Penal Code section 288.2, subdivision (a), and two counts of attempted lewd and lascivious conduct with a minor in violation of Penal Code section 288, subdivision (a). The trial court suspended imposition of the sentence and placed defendant on probation for a term of three years. The charges stem from defendant's contacts in an internet chat room with a law enforcement officer posing as a 13-year-old girl.
In this appeal, defendant challenges the sufficiency of the evidence to support the jury's guilty verdicts on any of the charges. He also contends the trial court committed prejudicial error when it failed to instruct the jury sua sponte on the lesser included offense to the crime of attempted seduction of a minor, as charged in counts 1 through 3. Finally, defendant contends, and the Attorney General concedes, the trial court erroneously imposed a Penal Code section 294 restitution fine.
All further statutory references are to the Penal Code unless indicated otherwise.
We conclude the evidence is insufficient to support the jury's verdict on count 2, the charge that defendant attempted to seduce a minor on August 31, 2009. Therefore, we will reverse the jury's verdict on that count and direct the trial court to dismiss that charge. We will also strike the section 294 restitution fine. Otherwise we will affirm.
FACTS
Defendant, using the screen name "wickedman65," entered a regional internet chat room on August 24, 2009. Investigator Michael Portillo of the Riverside County Sheriff's Department was online, posing as a chat room decoy named Ginger Wine, a 13-year-old girl with the screen name "gingeegurl." Defendant contacted gingeegurl in the chat room and the two of them began a private conversation. After gingeegurl identified herself to defendant as a 13-year-old girl who lived in Riverside, defendant responded that he was 18 years old and lived in West Covina. Defendant asked to trade photos. Gingeegurl sent defendant two photos of a young girl. Defendant sent a photo to gingeegurl and then asked if she had a webcam. Gingeegurl said that her grandmother had taken away her webcam a couple of months ago after she caught gingeegurl "webbing" with someone. Defendant asked if gingeegurl wanted to see his "cam." When she said yes, defendant displayed himself naked and masturbating. The details of their online conversation are set out in the parties' respective briefs. Defendant's contact with gingeegurl on August 24, 2009, is the basis for the attempted seduction charge alleged in count 1, and the attempted lewd and lascivious conduct charge alleged in count 4.
A regional chat room is one for people in a specific geographical area, in this case the Los Angeles area.
Defendant was 30 years old at the time.
Defendant contacted gingeegurl in the chat room again on August 31, 2009. Their exchange on that date, which included another webcam transmission from defendant, is the basis for the attempted seduction charge alleged in count 2 and the attempted lewd and lascivious conduct charge alleged in count 5. Defendant contacted gingeegurl a third time on September 28, 2009. That contact, including defendant's webcam transmission, is the basis for the attempted seduction charge alleged in count 3. All three online conversations between defendant and gingeegurl were read to the jury. The jurors also had transcripts of each conversation. They also viewed each of defendant's webcam transmissions.
DISCUSSION
We first address defendant's challenge to the sufficiency of the evidence to support the jury's guilty verdicts.
1.
SUFFICIENCY OF THE EVIDENCE
A.
Standard of Review
"In reviewing a challenge to the sufficiency of the evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is "evidence which is reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
B.
Analysis
(1.) Attempt to Violate Section 288.2, Subdivision (a)
To find defendant guilty of an attempted violation of section 288.2, subdivision (a) (also referred to as seduction of a minor) as alleged in counts 1 through 3, the evidence had to show, first, that defendant committed a direct but ineffectual act toward committing the crime charged. (§ 21a; People v. Memro (1985) 38 Cal.3d 658, 698.) The elements of the crime, as the trial court instructed the jury, required proof that (1) defendant sent harmful material to a minor over the internet; (2) defendant knew the character of the material at the time he acted; (3) when he acted defendant knew the person was a minor, or failed to use reasonable care to determine the minor's actual age; (4) when he acted defendant intended to sexually arouse, appeal to, or gratify lust, passions, or sexual desires of himself or of the minor; and (5) when he acted defendant intended to seduce the minor, which means, "to entice the minor to engage in a sexual act involving physical contact between the seducer and the minor."
Defendant only takes issue with the sufficiency of the evidence to establish the intent element of the crime. As he correctly notes, for the jury to find him guilty of an attempt to seduce a minor in violation of section 288.2, subdivision (a), the evidence had to show he intended to "entice" gingeegurl to have physical, sexual contact with him. (See People v. Jensen (2003) 114 Cal.App.4th 224, 239-240, which defines the term "seduce" to mean an intent "to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor.") Defendant contends "there was no evidence whatsoever that [he] had any intent to engage in physical contact with [gingeegurl]," and therefore he could not have intended to entice her to engage in such conduct with him.
Defendant does not separately address the evidence offered to prove counts 1, 2, and 3, the counts that charged attempted violations of section 288.2, subdivision (a). Instead, he discusses the evidence as a whole. As the trial court instructed the jury, each count alleges a separate crime that the jurors had to consider separately. The Attorney General, in arguing the evidence is sufficient to support each conviction, also focuses on the evidence as a whole rather than as pertinent to each count. Because each count is a separate crime that requires a separate verdict, we must separately assess the sufficiency of the evidence to establish the elements of each of the three crimes charged. That assessment leads us to conclude, as we explain below, that the evidence is insufficient to support the jury's guilty verdict on count 2.
As previously noted, count 1 is based on defendant's contact with gingeegurl on August 24, 2009, count 2 is based on the August 31, 2009 contact, and count 3 is based on defendant's contact with gingeegurl on September 28, 2009.
(a.) Count 1 - August 24, 2009
The evidence pertinent to the issue of defendant's intent to seduce gingeegurl on August 24, 2009, and thus that supports the jury's guilty verdict on count 1, is that defendant entered a regional chat room on that date; he contacted a person he believed was a 13-year-old girl; he sent her a live webcam feed of himself naked and his penis erect; and he masturbated while he asked her among other things what she wanted him to do to her. Defendant also asked if she liked his dick and if she wanted to play with it and if she would swallow his cum. Defendant also confirmed that he wanted to be gingeegurl's first experience with sexual intercourse and asked if she would let him put his penis in her anus so that he could come in her without risking pregnancy.
A defendant's intent can be "manifested by the circumstances connected with the offense." (§ 21, subd. (a).) In fact, "'[t]he element of intent is rarely susceptible of direct proof and must usually be inferred from all the facts and circumstances disclosed by the evidence.' [Citations.]" (People v. Falck (1997) 52 Cal.App.4th 287, 299.) The trial court instructed the jury on this point by giving CALCRIM No. 225, which states in pertinent part, "An intent or mental state may be proved by circumstantial evidence." The trial court also instructed the jury according to CALCRIM No. 223 on the difference between direct and circumstantial evidence, the latter being "evidence of another fact or group of facts from which you may logically and reasonably conclude the truth of the fact in question."
From the fact that he selected a regional chat room, which meant that he and gingeegurl lived in the same general geographic area, the jury could reasonably infer as the prosecutor argued in closing that defendant wanted to connect with someone within driving distance of his location. That fact supports an inference that defendant intended to contact gingeegurl in person. That defendant spoke with gingeegurl about what he wanted to do to her, and what he wanted her to do to him, further supports the inference that he intended to have actual physical contact with her in order to engage in those sex acts. The jury could reasonably infer from the noted circumstantial evidence that defendant intended to persuade gingeegurl to meet him in person in order for the two of them to engage in a sex act.
In arguing the evidence is insufficient, defendant points out that he never expressly asked to meet gingeegurl in person. In defendant's view, nothing short of making plans to meet or an actual request to meet will suffice to prove the intent element of the crime. Therefore, defendant would have this court hold as a matter of law that the cited evidence is insufficient to show he harbored the requisite intent and thereby attempted to commit the crime of seducing a minor. We decline to hold the evidence is insufficient as a matter of law. Instead, we conclude the circumstantial evidence presented in this case and cited above is sufficient to support the jury's implied finding that on August 24, 2009, defendant intended to entice gingeegurl to engage in a sex act that involved physical contact between the two of them. Consequently we conclude the evidence is sufficient to support the jury's verdict finding defendant guilty of an attempted violation of section 288.2, subdivision (a), as alleged in count 1.
(b.) Count 2 - August 31, 2009
The evidence pertinent to this count consists of defendant's contact with gingeegurl online in the same regional internet chat room where their first contact occurred. The evidence shows that after saying hello, defendant asked if gingeegurl could call him. She said she would have to go to a friend's house to use the phone and that would take about 20 minutes. Defendant then asked, "You just wanna watch me instead?" When she agreed, defendant apparently turned on his webcam and then asked gingeegurl about her webcam. She reminded him that it was in the trunk of her grandmother's car, as she told him in their first chat. Defendant asked gingeegurl if she would try now to get the webcam back because he wanted to see her. Gingeegurl explained that her grandmother was not home so she could not get the webcam right now. Defendant asked her if she would show him her privates and play with herself, and gingeegurl answered, "As long as no one is home." Defendant then showed gingeegurl his penis, and she said she was drooling over him. Gingeegurl asked to hear defendant's voice, and when he in turn asked to hear her voice, she claimed there was something wrong with her computer. Defendant then suggested that he call her. Gingeegurl responded, "You can try to call me, maybe it'll work when you call me. Can you hear me? I can hear your side. I think so. On the computer, isn't it? Cuz I can hear you. Isn't it like a phone." Gingeegurl continued to talk and type but did not get a response from defendant who apparently had ended the chat when she asked for his phone number.
The noted evidence does not support a finding that defendant intended during his contact with gingeegurl on August 31, 2009, to seduce her, which as the trial court instructed the jury means to entice her to engage in a sexual act involving physical contact between him and her. (See CALCRIM No. 1140 (2011).) Use of the term "entice" in the definition of "seduce" is an unfortunate choice because in our view the term is ambiguous. It could mean, as the prosecutor argued in the trial court, to simply arouse desire in the victim to engage in sex with the seducer. The prosecutor's definition of "entice" is not consistent with the meaning of "seduce." As used in section 288.2, seduce means "'persuading into partnership in sexual intercourse.' [Citation.]" (People v. Hsu (2000) 82 CalApp.4th 976, 992, quoting Webster's 3d New Internat. Dict. (1981) p. 2054.) Consequently it is not enough that the defendant intends for the victim to want or desire to have sex with him; section 288.2, subdivision (a) requires that the defendant intend to persuade the victim actually to engage in a sex act with the defendant. The evidence with respect to count 2 is insufficient to show defendant harbored that intent on August 31, 2009. Therefore, we will reverse his conviction on count 2.
(c.) Count 3 - September 28, 2009
The evidence pertinent to count 3 shows defendant again contacted gingeegurl in the regional chat room on September 28, 2009, by typing "Hi. Hi ya." After saying hello and exchanging brief pleasantries, defendant asked gingeegurl if she could call him yet. When she said she would have to go to her friend's house, defendant asked, "Wanna see my dick?" Defendant gave gingeegurl his phone number and then asked, "Do you wanna fuck me?" Gingeegurl responded, "Hells yeah. You have to be real careful though with me, cuz I haven't been that far yet." Defendant then asked whether gingeegurl would tell anyone, and after she said no, defendant added, "I'm old and you are young." Defendant asked gingeegurl to call his computer and after she confirmed that she would, she said she had been at the West Covina mall. Defendant responded, "We coulda hooked up."
The jury could reasonably infer from the above noted facts that defendant harbored the requisite intent to seduce gingeegurl. Defendant not only asked if she wanted to have sex with him but also asked her if she would tell anyone if they did have sex. His statement that he is old and she is young implies the reason he was concerned about whether she would tell—he could be arrested. The inference that defendant intended to persuade gingeegurl to meet in person is further supported by his statement that they "coulda hooked up" when she was in West Covina at the mall. From these facts the jury could reasonably find that on September 28, 2009, defendant acted with the intent to seduce gingeegurl and thereby attempted to violate section 288.2, subdivision (a).
(2.) Attempt to Violate Section 288, Subdivision (a)
In order to find defendant guilty of the crimes charged in counts 4 and 5, attempted lewd and lascivious conduct with a child under the age of 14, in violation of section 288, subdivision (a), the evidence presented at trial had to show among other things a willful touching of the child committed with the intent to arouse the sexual desires of either the child or the perpetrator. (See People v. Lopez (2010) 185 Cal.App.4th 1220, 1229 [Fourth Dist., Div. Two] (Lopez).) In Lopez we held that a constructive touching, i.e., one the child commits at the perpetrator's direction, satisfies the touching element of section 288, subdivision (a). (Id. at pp. 1231-1232.)
The evidence in this case is that during their chat room exchange on August 24, 2009, which is the basis for the charge alleged in count 4, defendant while masturbating in front of the webcam, said, "Finger yourself, baby." Gingeegurl answered, "Okay, mmm?" During their chat room exchange on August 31, 2009, which is the basis for the charge alleged in count 5, defendant while masturbating told gingeegurl, "Rub your pussy for me." She answered, "K. I like that." Defendant then asked, "Are you wet?" Gingeegurl answered, "You know it. I'm gonna leave a puddle on the chair." That evidence is sufficient to support the jury's implied findings on both counts that defendant attempted to commit a constructive touching of gingeegurl for the purpose of arousing his own or her sexual desires. (Lopez, supra, 185 Cal.App.4th at pp. 1231-1232.)
Defendant argues that Lopez is distinguishable and should not be extended to this case because, unlike this case, the crime in Lopez was a violation of section 288, subdivision (a) rather than an attempted violation of that section, and the defendant in Lopez was physically present when he directed the victim to commit the lewd act that constituted the constructive touching. We do not see the distinction defendant purports to draw between a completed and attempted violation of section 288, subdivision (a). The attempt in this case consists of defendant directing gingeegurl to touch herself. Because defendant gave that direction over the internet, rather than in person, he could not ensure that gingeegurl actually complied with his direction. As a result, the resulting crime can only be an attempt to violate section 288, subdivision (a).
In arguing otherwise, defendant notes, "A person can be virtually anyone on the internet." Defendant contends he was only "engaged in a fantasy, and his suggestion that [sic]the person on the other end of the chat was nothing more that [sic] a part of the fantasy." Because he neither could see nor hear gingeegurl, and was relying on his imagination to fuel the fantasy, defendant argues "it is hard to say he formed the specific intent" that gingeegurl touch herself. In other words, defendant denies that he formed the requisite intent and argues instead that he was only fantasizing.
Defendant's denial does not negate the inference the jury was entitled to draw from the evidence. In assessing a challenge to the sufficiency of the evidence to support a conviction, our task is to determine whether the jury's express and implied findings are supported by "evidence which is reasonable, credible, and of solid value." (People v. Johnson, supra, 26 Cal.3d at p. 578.) We conclude the evidence that defendant masturbated while he asked gingeegurl to "finger" herself and "rub [her] pussy," even though communicated over the internet and thus only a constructive touching, is sufficient evidence to support the jury's guilty verdicts on counts 4 and 5.
2.
LESSER INCLUDED OFFENSE INSTRUCTION
Defendant contends the trial court had a sua sponte duty to instruct the jury on the misdemeanor violation set out in section 313.1, as a lesser included offense to the crime of seduction of a minor in violation of section 288.2, subdivision (a), as alleged in counts 1, 2, and 3. Defendant further contends the trial court's error was prejudicial. We agree the crime is a lesser included offense, but find the evidence in this case does not warrant the instruction.
"[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." (People v. Birks (1998) 19 Cal.4th 108, 117. "[T]he trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (Id. at p. 118.)
Section 313.1, subdivision (a) states, "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 sells, rents, distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter to the minor shall be punished as specified in Section 313.4."
The Attorney General acknowledges that section 288.2, subdivision (a) "proscribes virtually identical conduct," but also requires the defendant act with the specific 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." (§ 288.2, subd. (a).) Because section 288.2, subdivision (a) includes all the elements of section 313.1, and the former cannot be committed without also committing the latter, the misdemeanor offense set out in section 313.1 of distributing harmful material is a necessarily included lesser offense of the felony set out in section 288.2, subdivision (a).
In People v. Jensen, supra, 114 Cal.App.4th 224, the Sixth District held that section 313.1 is a lesser included offense to subdivision (b) of section 288.2. (Id. at pp. 243-245.)
"A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] 'there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser. [Citations.]" (People v. Memro (1995) 11 Cal.4th 786, 871.)
Defendant argues that the lesser included offense instruction was required in this case because there was no substantial evidence to prove he had the specific intent to seduce gingeegurl. In the absence of such evidence, defendant contends the jury could have found that he intended to arouse himself and/or gingeegurl, but he lacked the intent to have physical contact with her. We have addressed and rejected defendant's challenge to the sufficiency of the evidence to prove his intent to seduce and thus to prove his guilt on the seduction of a minor charges. Defendant does not cite any evidence that would absolve him of the greater offense but not the lesser. Instead, he cites the absence of evidence that he made any express plan to meet gingeegurl in person. The absence of such evidence does not absolve defendant of the greater offense, in light of the circumstantial evidence previously discussed that shows defendant's intent to seduce gingeegurl. Accordingly, we reject defendant's claim that the trial court had a sua sponte duty to instruct the jury in connection with counts 1, 2, and 3, on the lesser included misdemeanor offense.
3.
SECTION 294 RESTITUTION FINE
The trial court ordered defendant to pay a restitution fine of $1,000 under section 294. Defendant contends that fine was imposed incorrectly because section 294 does not apply to either section 288.2 or section 288, subdivision (a), the crimes of which defendant was convicted in this case. The Attorney General appropriately agrees with defendant. Therefore, we will strike the section 294 fine.
The Attorney General urges us to remand the matter to permit the trial court "to reevaluate its restitution order," rather than simply strike the restitution fine. We decline the request in part, because the Attorney General does not cite any authority under which the trial court could impose a restitution fine on remand.
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DISPOSITION
The judgment is modified by reversing defendant's conviction on count 2 with directions to dismiss that charge, and by striking the $1,000 restitution fine imposed under section 294. Except as modified, the judgment is affirmed in all other respects. The trial court is directed to prepare an amended abstract of judgment that reflects defendant's modified sentence and forward the amended abstract to the appropriate governmental agencies.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur: Miller
J.
Codrington
J.