Opinion
H046793
04-14-2022
THE PEOPLE, Plaintiff and Respondent, v. JESUS ORTEGA, Defendant and Appellant.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 17CR001435
ELIA, ACTING P.J.Defendant Jesus Ortega was convicted by a jury of communicating with a minor with the intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a)), attempting to meet with a minor for a lewd purpose (§§ 288.4, subd. (b), 664), sending harmful matter to a minor (§ 288.2, subd. (a)(2)), arranging to meet with a minor for a lewd purpose (§ 288.4, subd. (a)(1)), and annoying or molesting a minor (§ 647.6, subd. (a)(1)). The court imposed a four-year prison term.
All statutory references are to the Penal Code unless otherwise indicated.
The sentence was composed of the upper term of four years for the communicating count and concurrent terms for the remaining counts, except for the arranging count, for which the court stayed a term under section 654.
On appeal, defendant contends that (1) there was insufficient evidence that the photograph of an erect penis that he sent to Jane Doe's e-mail address was "harmful matter" within the meaning of section 288.2 or that the photo was sent with the requisite intents, (2) the trial court prejudicially erred in refusing to modify the standard instruction for three of the counts that the conduct must be "motivated by an unnatural and abnormal sexual interest in children" to add "caused by and" before "motivated by," (3) the trial court prejudicially erred in admitting child sexual abuse accommodation syndrome (CSAAS) testimony because it was irrelevant and more prejudicial than probative, (4) the trial court prejudicially erred in giving CALCRIM No. 1193, a standard instruction pertaining to the CSAAS evidence, and (5) the errors were cumulatively prejudicial. We reject his contentions and affirm the judgment.
I. THE PROSECUTION'S CASE
In May 2017, Jane Doe was 13 years old and in seventh grade. Jane liked to play video games, including Minecraft, and she was a fan of anime, particularly Fairy Tail. One of her favorite characters in Fairy Tail was the main character, who was named Lucy. Jane's school provided each student with a Chromebook laptop computer and an assigned school e-mail address. Jane also had a personal Gmail e-mail account.
Defendant was a 32-year-old computer technician employed by the school district to maintain the Chromebooks given to students, and he had access to the school e-mail addresses given to students. On May 8, 2017, defendant created a personal Gmail account for which he chose the user name Lucy Crisp.
On May 10, 2017, defendant sent an e-mail to Jane from the Lucy Crisp e-mail account. Defendant used this e-mail address solely to communicate with Jane, and he never used it to communicate with anyone else. His e-mail said:" 'I see you like Minecraft. What do you play on?'" Jane initially thought the e-mail was from a girl due to the user name. She responded to the e-mail and asked" 'Who are you?'" Defendant explained that he was "keep[ing] track" of how students used their Chromebooks. Jane asked how old he was and how he had obtained her e-mail address. Defendant told her that he worked for her school fixing Chromebooks and had seen her e-mail address "popping up" in connection with video games.
Defendant began e-mailing Jane nearly every day. He asked her what her favorite anime was, and she said it was Fairy Tail. Defendant responded that it was his favorite too. Jane gave defendant her personal Gmail e-mail address so that she could receive his e-mails on her phone. Defendant eventually told her that he was a 21-year-old male named Jesse. He told Jane that he could download "whole seasons" of Fairy Tail to a drive and give her the drive. Jane was "really excited" about that, and defendant told her he would be at her school on May 23 and would give it to her then.
On May 22, 2017, defendant asked Jane if she had a boyfriend and asked if she liked boys. Jane told him that she did not have a boyfriend and was "not really allowed to." Jane had no experience with males. Jane said that her mom had told her that a boy was "checking me out," and defendant responded: "Wow must have the curves lol . . . ." "[Y]ou really are mature for your age. Too bad you're not older." "[Y]ou're perfect. It's so hard to believe you're so young. You seem so innocent too, guessing since you can't have a bf you must be pretty innocent." Jane said that she was innocent until her brother told her things. Defendant assured her that she could "talk to me about anything no matter how bad it is or personal lol I think I know I can have a dirty mind at times . . . ." Jane told defendant that her brother had told her what masturbation was.
Defendant told Jane: "If you were older, I would totally take you out somewhere." Jane asked him how old he would be when she was 18, and defendant said "24 or 25." Defendant said "I think I might be being a little too flirty with you." He insisted "I'm not hitting on you. I can control myself. But if it turns out you're as cute as your personality . . . well that might be tough . . . and if you got a big butt..I might just die." "Hmm so do you think it would be weird if we hung out someday?" "I wanna invite you over but is that ok? I think we'll get in trouble huh?" "I would hate to ask you to sneak out."
On May 24, 2017, defendant arranged, by falsely claiming that he knew her mother, for Jane to be called out of her school class and told to go to the library. When she went to the library, defendant was there. He introduced himself to her and gave her a USB drive. After meeting her, defendant sent her an e-mail saying she was "[t]oo cute."
On May 30, 2017, defendant wrote to Jane: "[T]old you you're a hottie. Don't take this the wrong way but you got something that drives the guys crazy." "I feel weird saying it cause our age difference, but you are pretty hot. Guys go crazy over your thick legs and big butt. Plus you're pretty and you got a thin waist." "A lot of the hottest girls in the world are known for having big butts lol hope you don't mind me saying so but even I look at it." "Maybe it's your innocence though. You said you never done anything right?" Jane told him "I've never even dated a guy." Defendant wrote back: "Being a virgin isn't bad either. And sorry for asking so many personal questions. Just curious to know. I know some at your school have been doing things so was a bit curious if you have tried anything yet." Jane told defendant that she was "[n]ot even thinking of trying anything until I'm out of Collage [sic]." Defendant responded that he had not dated until he was out of high school because he was afraid of getting someone pregnant, and he mentioned "a cop who got in trouble because he let a 14 year old girl give him a bj." He said "I hope you never get a guy into that sort of trouble lol but also hope you don't become the kind that is grossed out by those things." "Hope you still have a fun and wild side when you're older. Not gonna lie, it's hot."
On June 1, 2017, defendant offered to give Jane a tablet and suggested "we might have to meet up outside of school." He also offered her a headset to use for gaming. Defendant continued to make comments about Jane's body. "And you got a booty, my friend lol I'd die." These comments made Jane "uncomfortable." On June 5, defendant suggested that they meet "in person" so he could give her the headset. After she told him that would be impossible due to her mother's and her grandmother's restrictions, he mailed the headset to her grandmother's home. On June 7, Jane told him that she was starting summer school soon, and he responded "maybe I can go visit you at school? [¶] You might even get a free gift." On June 14, defendant offered to give her a "PS 4 and laptop." On June 20, defendant asked Jane "is it wrong if I ask for a pic?" On July 2, he again asked for a "pic of yourself." After she responded that she was "shy," he said "you are beautiful." "And you do like guys right just can't date yet. Atleast [sic] you know about adult things now even if it's just a little." On July 4, he suggested meeting up with Jane at her school.
Jane was initially happy to have someone to talk to because her friends were usually too busy and were not interested in video games. However, as the e-mails became more personal, she became more and more uncomfortable. Jane did not stop responding to defendant's e-mails because she wanted "to be nice." Jane was afraid to tell her mother about defendant's e-mails because she thought her mother would be upset and she might be in trouble.
In early July 2017, Jane's mother found the e-mails from defendant when she was checking Jane's phone. She was concerned by the offers of gifts and asked Jane who "Lucy" was. Jane told her that Lucy was not a female. Jane's mother thought the e-mails were "inappropriate," so she contacted the police. Jane and Jane's mother then met with the police, and Jane provided the police with her e-mail address and password. She gave the police permission to use her e-mail address, and she no longer used it after that. Jane had no more contact with defendant after July 4, 2017, and no e-mails from Jane's e-mail account went to defendant between July 5 and July 15. He continued to e-mail her every few days during this period but received no responses.
On July 18, 2017, a police officer sent an e-mail from Jane's account to defendant saying: "Sorry. My mom wz being dum and wouldn't let me use my phone . . . ." Defendant responded within minutes, "I've missed you." The officer wrote back: "I'm not that innocent. I want 2 experience a relationship." Defendant responded: "I know you're not that innocent. I guess I meant virgin in everything." "You already found a guy you want?" Then the officer sent an e-mail that said "I want love, not the other stuff . . . but I don't want to be a virgin forever." Defendant wrote back: "Omg you are too cute. I also want that. I been looking for a while, and it's crazy and you'd be the one I'd want if I could. [¶] Well, I'm sure you want to try stuff, right?" "[C]ome on, you can tell me what you want to do. It's safe with me I promise."
The officer responded: "I wouldn't know what 2 do." Defendant wrote: "Nothing you want to try, though? Like, maybe just touching. Or maybe more?" The officer wrote: "Ur the guy . . . what do guys like?" Defendant responded: "Lol you want to know what I like?" "Ok but don't tell anyone lol. [¶] I like to be licked, so I would love a bj. I also like big butts so I would like to rub against it and grab it." The officer responded: "I don't know if I'd like it." Defendant wrote back: "Do you want to try it though?" "[I]t's okay to at least want to try things. Do you have a guy you're interested in doing things with? Or me?" He asked "want me to teach you?" "[L]et me know if you do, cause I would love to." "I'll be waiting. . . . Plz get back to me soon."
On July 19, 2017, defendant wrote to Jane telling her that he was at the library and suggested she "stop by." The officer replied: "I was thinking maybe I am ready." Defendant wrote back: "[W]hat do you feel you want to do? And do you have someone you want to try it with?" The officer responded: "Would u really want to do something with me, or are u just saying things? I don't want to just hear stuff. . . ." Defendant wrote back: "I do want to lol but I was worried you wouldn't like me. Plus it has to be a secret, nobody can know. Make sure nobody can read your emails. And don't use school chromebooks to talk about it lol." After the officer said "I know how to keep a secret," defendant responded "now we just need to find a way to hang out. Do you have anything you want to try first?"
The officer wrote to defendant: "Um . . . I don't know how to say it . . . I've never seen one." Defendant responded: "I'll let you see and you can touch too." The officer responded: "I can see it?" "Ummm . . . this is dum, but I wanna see what it looks like." Defendant responded: "I'm also curious what you look like." The officer replied: "Will you send me a picture? I wanna see . . . ." Defendant said: "Oh haha a pic really? Well I'll have to wait till I go home, can't do that at school lol. [¶] Can you send me a pic of you too? . . . Full body so I can check out that nice curve you have lol." "We'll have to hang out if you want to learn things with me." The officer wrote back: "I kinda want to see what one looks like. . . ." Defendant responded: "Oh is that all you want to do? I'll show you but thought maybe you wanted to see it in person too. Touch it maybe?" The officer responded: "Yeah, I want that, too . . . ." Defendant replied: "Haha ok great. Was kind of hoping you would. You know what a bj is right?" The officer responded: "I mean, kinda." Defendant replied: "It's when you suck on what you want to see. Heard it feels really good." "I'll teach you what I know and we can learn other things together."
On the evening of July 19, 2017, defendant did several google searches, including one for "sexy dick pics." The next morning, he asked Jane if she had taken a picture yet. The officer said no. Defendant said: "I did take some but didn't want to send them till you send me yours first. I just want to make sure it's you. And also wasn't sure which to send lol one where it's normal or one where it's up and excited." The officer responded: "Gross . . . not really me? My mom thinks I'm not ready for this, maybe she's right . . . ." Defendant replied: "I'll leave the choice to you and I'll do what you want. Maybe we can hang out and then decide based on how we feel then?" The officer responded: "[Y]eah I want to see. Maybe I can tell my mom I'm going to the movies or something too." Defendant wrote back: "Yeah that would be cool. We could always go to the movies too if you actually want to go. But ok, want me to send you the pic no."
Defendant then e-mailed to Jane's e-mail address a color photograph of an erect penis. The photo showed the naked body of a male from the waist down with his hand appearing to be cradling his penis. His penis was protruding perpendicularly from his body with a slight angle upward. Defendant wrote: "Don't show anyone ok?" The officer responded: "I've never seen one before . . . it's big." "I can tell my mom I'm going to the movies if you want to hang out." Defendant replied: "[I]t gets like that when I'm excited lol it's pretty small when it's normal. And not so pink lol." The officer wrote to defendant: "I told her I'm going to the movies with my friend and the mall. I wouldn't have long but I can meet for a little while . . . I don't know where." Defendant responded: "Oh nice. When? Today? And I know it's kinda big, but did you like it? It won't always be that big so don't worry."
The officer told defendant that Jane would be at "northridge" around 4:30 p.m. Defendant said he would "get out of work at 4:30" and asked: "Do you want to hang out or would you want to go somewhere we can be private?" The officer said "you could pick me up, maybe?" "after 5" and asked "do I meet you at ur car?" They arranged to meet at 6:00 p.m., and the officer asked "is your car big?" Defendant replied "it's a decent size," and "we don't have to do anything if you don't want to. We can just hang out if you want." The officer responded: "Um . . . I guess so . . . I thought you wanted more." Defendant wrote back: "I do but only if you want to. I'll be honest I would like you to suck on it, but I won't force you." At 4:30 p.m., the officer told defendant "Let me know when you get there." Defendant immediately said that he was already home and was going to shower because "I don't want you to think I stink." The officer reconfirmed the 6:00 p.m. meeting time. He asked what color defendant's car was, and defendant said it was "dark grey" and said "let me know when you get there . . . I'll tell you where to go once I'm there." At 5:21 p.m., the officer wrote: "I'm here . . . where should I go?" Defendant replied two minutes later: "Ok I'm barely driving there. Be there in like 10-15 mins. You at the mall or movies?" The officer replied: "Wanna pick me up behind toysrus?" Defendant left his home in his car shortly before 5:30 p.m. and headed in the direction of the agreed meeting place. Before he reached that location, the police stopped him.
Defendant's and Jane's e-mail accounts had exchanged a total of 422 e-mails between May and July 2017.
II. THE DEFENSE CASE
The defense at trial was that defendant lacked sexual intent. Defendant testified that he had been bullied by family members when he was a child. His cousins were "sexually aggressive" toward females in the neighborhood. They called him names because he did not join them in this behavior. Eventually, to avoid being humiliated, he started "boasting" about "sexual acts" with females. When he first watched a pornographic video with his cousins and uncles at age eight or nine, he asked them why the penis was so big, and they laughed at him. As a result, defendant had "a lot of low self-esteem," which he was never able to overcome. He sometimes took on a "macho guy role" because he was embarrassed to be a "nerd." He also felt that females did not like him unless he put on a "macho act . . . ."
Defendant explained that he was "obsessed" with video games and anime. Video games and anime made him "feel free, like I can be me." He used the name Lucy online because he had created an avatar named Lucy to play a particular video game. In May 2017, he was hoping to create a YouTube channel. He went to a random name generator and put in the name Lucy, and it generated a list of names that included Lucy Crisp. He chose that name because it made his friends laugh.
He testified that, although he sent all of the e-mails to Jane's e-mail address: "I didn't intend to do any of those things. I didn't intend to have any kind of sexual contact with her." "I had absolutely no sexual intention toward her or anybody. I was just -- basically just talking because I was, you know, trying to -- to make a friend." "And honestly, that was all talk because that's just kind of who I am. I'm all talk and no action. I didn't intend to do any of that stuff."
Defendant testified that he made comments about Jane's physical appearance before he had ever seen her to make her feel good about her appearance. He was feeling "very, very alone, very depressed" when he started e-mailing Jane. He also thought his coworkers were making fun of him. Defendant thought of Jane as a "potential gamer friend." He continued communicating with Jane even though he knew he could lose his job as a result because he "needed someone to talk to." "I didn't have any impure thoughts about her. It was just a friendship." He discussed sexual subjects with Jane because he was afraid of "being too boring." He had heard other guys talking about sexual things, and he thought Jane would want to hear such talk. He made sexual comments to Jane because he thought "that's what she wanted to hear" and believed that she "was taking the conversation" in that direction. When he was asked for a penis photo, he felt that he had to provide one or the friendship would end. He got one off the internet.
Defendant insisted that he had no intention of meeting Jane on July 20, 2017. He was just "playing along" and would "make up some excuse" later for why he had not shown up. "[I]t was all talk. I do that a lot. I tell people that I'm going, and then I don't. I don't go." When he left his house, he was going to a Jack in the Box to get food, not to meet Jane. He did not intend to have any kind of sexual contact with Jane, and he had no lewd or sexual interest in her at any time. Defendant testified that he had no sexual interest in children.
The defense also presented the testimony of several of defendant's friends and relatives. They testified that he had a habit of saying he would come to events and then not showing up. They also testified that they had never known him to show a sexual interest in children. In addition, his witnesses testified that he was honest and had a reputation for honesty. One of his cousins testified that defendant's "reputation is that he appears with very beautiful women, almost appears like he's dating them, even bedding them."
Defendant's trial counsel argued to the jury that defendant had "no bad motive." "[H]is motive and intent was . . . to make and keep a friend. Not a lover." "[Defendant] talked about sex with Jane Doe because he believed that if he didn't, she would lose interest." "The only way he is guilty is if he had the sexual motive, the sexual intent to molest this girl, and had a sexual interest in children." "Only monsters molest. And [defendant] is not a monster."
III. DISCUSSION
A. Substantial Evidence
Defendant claims that there was not substantial evidence that the penis photo he sent to Jane's e-mail address met the statutory definition of "harmful matter" or that it was sent with the requisite intents.
1. Background
After the prosecution's case-in-chief, defendant asked the trial court to dismiss the harmful matter count on the ground that there was insufficient evidence that the penis photo was harmful matter. In his written motion, defendant claimed "there is nothing more here than a photograph of a person holding a naked penis." The prosecution responded that the photograph focused on a naked penis, and noted that "the pose was sexually suggestive because the subject was holding the penis . . . ." The court denied the motion.
The prosecutor described the penis photo in closing argument. "So here, we have an erect penis. So basically, a penis that someone did some sort of act of touching something to get it to an erect stage." She noted that defendant had done a google search for "sexy dick pic." "There is no other reason you're sending a photograph of an erect penis to a child if not for a sexual purpose."
2. Analysis
"Our standard of review is well established.' "[T]he 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."' [Citations.] '[The] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.] 'Evidence is sufficient to support a conviction only if it is substantial, that is, if it" 'reasonably inspires confidence'" [citation], and is "credible and of solid value."' [Citation.]" (People v. Fromuth (2016) 2 Cal.App.5th 91, 103- 04 (Fromuth).)
"Every person who knows, should have known, or believes that another person is a minor, and who knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including by physical delivery, telephone, electronic communication, or in person, any harmful matter . . . to the other person with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other" violates section 288.2. (§ 288.2.)
Section 288.2, subdivision (a)(1) applies where the harmful matter "depicts a minor or minors engaging in sexual conduct," while section 288.2, subdivision (a)(2) applies where the harmful matter "does not include a depiction or depictions of a minor or minors engaged in sexual conduct." Defendant was convicted of violating section 288.2, subdivision (a)(2).
1. Harmful Matter
The words "harmful matter" as used in section 288.2 are defined in section 313. (§ 288.2, subd. (c).)" '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." (§ 313, subd. (a).) "[S]exual conduct" is defined in section 311.4, subdivision (d). (§ 288.2, subd. (b).)" '[S]exual conduct' means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288, or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct." (§ 311.4, subd. (d)(1).)
Defendant contends that the penis photo was not "harmful matter" because the penis was "not fully erect." He characterizes the photo as depicting a "semi-erect penis." In his view: "The image here is of a penis that appears enlarged but is not fully erect and is not engaged in any sexual act. The hand that holds it does not appear to be moving, and the penis is simply displayed. It is not apparently being manipulated, nor is it in the midst of a sexually gratifying act. Rather, it is just a penis on its own that is not quite erect."
Defendant's claim that the photo does not depict a "fully erect" penis, which he never raised in the trial court, is based solely on his own subjective assessment. A police officer testified at trial that the photo showed a "fully erect penis," and the defense not only did not object to this testimony but never made any attempt to demonstrate or even argue that that the penis shown in the photo was not fully erect. The photo itself was before the jury, and it clearly depicted an aroused and erect penis, not a flaccid, drooping, or unaroused penis. Defendant explicitly acknowledged the sexually "excited" nature of the penis shown in the photo in the e-mails he sent to Jane's e-mail address immediately after sending the penis photo. He told Jane that the penis photo showed a "kinda big" penis and that a penis would look like that only "when I'm excited." We reject defendant's suggestion that the penis photo did not depict an aroused and erect penis.
We also reject defendant's claim that the penis photo did not depict "sexual conduct" because, in his view, the penis was "simply displayed." The photo itself rebuts this claim. What is shown is an aroused penis cradled in its owner's hand. The only possible inference is that the penis has been sexually stimulated into that state by masturbation or other sexual activity, and such a display of an aroused penis serves no apparent purpose other than to sexually stimulate the viewer. The photo plainly depicts sexual conduct within the meaning of section 311.4.
None of the cases defendant relies on provides any support for his claims. In People v. Dyke (2009) 172 Cal.App.4th 1377, the matter displayed to the child was a brief portion of a television program viewed by a child, which was not before the jury. (Id. at p. 1384.) All that was known about the matter was the child's testimony that, while the defendant was" 'flipping'" channels, she saw a nude woman dancing and briefly saw a couple, who were seen only from the waist up with the woman on top, having sex. The Court of Appeal held that this evidence was insufficient to establish that the program was harmful matter because it was "impossible" to determine whether the program as a whole was offensive rather than having redeeming value. (Id. at pp. 1384-1386.) Here, on the other hand, the entirety of the penis photo was in evidence, as were the e-mails surrounding defendant's transmission of the photo to
Jane's e-mail address. The evidence was easily sufficient to support a jury finding that defendant's transmission of a photo of an erect penis to Jane was in and of itself offensive and had no redeeming value.
In People v. Powell (2011) 194 Cal.App.4th 1268, as in Dyke, the videos that were displayed to the child were not in evidence, and all that was known about most of them was the child's description of the movies as bad, nasty, and pornography. (Powell, at p. 1290.) The court found that the child's description was inadequate to overcome First Amendment protections. However, the child also described one of the movies as showing penises, breasts, and vaginas engaged in sexual activity, and the Court of Appeal concluded that this testimony was sufficient to meet the statutory definition of harmful matter because it described an obscene movie. (Id. at pp. 1290-1295.) Again, here the penis photo was in evidence, and it was clearly not protected by the First Amendment as it had no redeeming value.
Defendant also cites People v. Nakai (2010) 183 Cal.App.4th 499 as support for his contention, but that case did not involve the sufficiency of the evidence to support a finding of harmful matter. While it is true that" 'nudity does not equate with obscenity'" (Bloom v. Municipal Court (1976) 16 Cal.3d 71, 79), the penis photo that defendant sent to Jane's e-mail address did not simply depict a nude penis. As we have already discussed, it depicted an aroused and erect penis that had been sexually stimulated, and defendant's accompanying e-mails described the pictured erect penis as being "excited," an obvious reference to sexual stimulation.
We conclude that substantial evidence supports the jury's finding that the penis photo was harmful matter within the meaning of section 288.2, subdivision (c).
2. Intents
Defendant contends that the prosecution did not present substantial evidence that he had the intent to arouse or "seduce" when he sent the penis photo.
Section 288.2 is violated only when the harmful matter is sent "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, and with the intent or for the purposes of engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other . . . ." (§ 288.2, subd. (a)(1).)
Defendant's reliance on People v. Jensen (2003) 114 Cal.App.4th 224 is misplaced because section 288.2's second intent element was substantially revised after Jensen construed the statute. At the time of Jensen, the "intent of arousing . . ." element was the same as it is now, but the second intent element in section 288.2 required that the harmful matter be sent "with the intent or for the purpose of seducing a minor." (Stats. 1997, ch. 590, italics added.) Jensen dealt with the meaning of "seducing." Section 288.2 was amended, effective January 1, 2014, to replace the "seducing a minor" language with "engaging in sexual intercourse, sodomy, or oral copulation with the other person, or with the intent that either person touch an intimate body part of the other . . . ." (Stats. 2013, ch. 777.) Thus, the statute no longer requires an intent to seduce. An intent that there be an intimate touching is sufficient.
Defendant claims that he lacked the requisite intents because "the context" of the e-mail "conversation" surrounding the sending of the penis photo showed that he "sent the image reluctantly" and that he "believed that the picture was a separate request unrelated to meeting Doe in person." He maintains that his sending of the photo showed only "an attempt to appease rather than to arouse."
We disagree. In fact, the "context" in which the photo was sent demonstrated that defendant explicitly linked the photo with his request for a physical meeting. Defendant's e-mails during the leadup to the sending of the penis photo demonstrated what defendant intended to accomplish by means of sending the photo. First, defendant tried to entice Jane to meet him in person by offering her the opportunity to "see and . . . touch" his penis, which clearly contemplated an in-person intimate touching. Second, after the officer explicitly sought a photo in advance of any meeting, defendant offered to send a penis photo in exchange for a "full body" photo of Jane showing "that nice curve you have." This exchange illustrated defendant's intent to immediately gratify himself by exchanging the penis photo for an alluring photo of Jane's body. Third, defendant told Jane during the discussion about the request for a penis photo that "[w]e'll have to hang out if you want to learn things with me," which showed his intent for a physical meeting during which sexual activities would take place. He continued to link the photo to a physical meeting: "I'll show you but thought maybe you wanted to see it in person too. Touch it maybe?" And he explicitly linked the requested photo to his desire that she orally copulate him: "You know what a bj is right?"; "It's when you suck on what you want to see." (Italics added.) All of these e-mails linked the penis photo to defendant's desire to see Jane's body (the intent to gratify himself) and meet her in person so that she could suck on his penis (the intent to engage in oral copulation).
Defendant's subsequent actions demonstrated that these intents remained unabated in the hours between the request for the photo and his fulfillment of that request. Defendant spent the evening acquiring penis photos, explicitly seeking "sexy" ones, and sent one to Jane's e-mail address the next morning. The e-mails he sent to Jane after he sent the penis photo confirmed that the penis photo was intended to persuade Jane to meet him and suck on his penis. He commented on the penis's appearance in the photo ("it gets like that when I'm excited") and sought her approval of the photo ("I know it's kinda big, but did you like it?"). In sum, the "context" surrounding defendant's sending of the penis photo provided strong support for a finding that defendant sent the photo with the intent of gratifying himself and with the intent and purpose of persuading Jane to orally copulate him.
Substantial evidence supports the jury's finding that defendant harbored the intents required for a violation of section 288.2.
B. Refusal to Give Requested Modified Instructions
Defendant asserts that the trial court prejudicially erred in refusing to give modified instructions he requested with respect to three of the counts.
1. Background
Defense counsel's trial brief sought modifications to CALCRIM Nos. 1122, 1125, and 1126 to change "it was motivated by an unnatural or abnormal sexual interest in children" to "it was caused by and motivated by an unnatural or abnormal sexual interest in children" in all three instructions. (Italics added.) The trial brief stated that this language was derived from "footnote 13" of this court's decision in Fromuth. At the instruction conference, the defense reiterated its request and again cited Fromuth. The court concluded that the requested modifications were not "necessary" and denied the request.
The defense also asked the court to modify CALCRIM No. 252, concerning the annoying count, to add to the pattern instruction a requirement that "the person must be motivated by an unnatural or abnormal sexual interest in the child." The prosecution did not oppose this request, and the court included similar language in the instruction.
The court's jury instructions described the "motivated by" element of the attempting to meet and arranging a meeting counts as: "When the defendant did so, he was motivated by an unnatural or abnormal sexual interest in children." The court's instruction on the annoying count described the corresponding element as: "The defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child."
The communication count and the harmful matter count had no corresponding "motivated by" requirement.
The prosecutor addressed this element of these offenses in her argument to the jury. "[H]e was motivated by an unnatural or abnormal sexual interest in children. [¶] So what that means is basically that he arranged a meeting with Doe because he was interested in her sexually. [¶] So the question here is did he arrange the meeting because he was interested in children sexually or because he wanted to be Jane Doe's friend? That's the question." "He admitted that he checked out a 13-year-old girl's legs, thighs, waist. [¶] Why is a man looking at a girl's body like that? There's no reason other than he was interested in that child sexually." "And then he tells her specifically what sex acts he wants."
2. Analysis
Defendant's argument falters at its premise because his claim that Fromuth supported the requested modifications is incorrect.
The issue in Fromuth was whether the trial court had a sua sponte duty to give a "substantial factor" instruction requiring the jury to find that defendant's unnatural or abnormal sexual interest in children motivation was" 'more than a trivial or remote factor'" in his commission of the prohibited conduct. (Fromuth, supra, 2 Cal.App.5th at p. 106.) "Defendant's claim of error is solely that the court did not explain to the jury that 'motivated by' meant that 'an unnatural or abnormal sexual interest in children' was a substantial factor, that is a more than trivial or remote factor, in the commission of the proscribed conduct." (Id. at p. 108.) Since the "common understanding of the phrase 'motivated by'" is that it means caused by, "the trial court's instruction that the jury was required to find that, at the time of the conduct, defendant was 'motivated by an unnatural or abnormal sexual interest in children' fully informed the jury of the need for proof that the motivation 'cause[d]' the conduct." (Id. at p. 109.) Footnote 13 of the Fromuth opinion explained that telling the jury that the motivation "needed to be only a more than trivial factor in causing the conduct" would "offer no potential benefit to a defendant" and "would appear to benefit the prosecution rather than the defense." (Id. at p. 109, fn. 13.)
Defendant misunderstands Fromuth. He argues: "Fromuth held that section 288.4, subdivision (b) required that the defendant's aberrant behavior be 'caused by' an abnormal or unnatural sexual interest in children, rather than being a mere substantial factor in it." Not so. Fromuth held that the legal meaning of "motivated by" was a substantial factor in causing, but that the common understanding of "motivated by" was "caused by," which included the lesser substantial factor requirement. This was why the Fromuth trial court's failure to give a substantial factor instruction could not have been detrimental to the defendant. None of that is relevant to this case, which does not involve a claim that a substantial factor instruction should have been given.
Defendant did not request a substantial factor instruction. Instead, he requested that the jury be instructed that his conduct must have been both "caused by and motivated by" his unnatural or abnormal sexual interest in children. As we made clear in Fromuth, the commonly understood meaning of "motivated by" is "caused by" so defendant's requested modifications were repetitive, unnecessary, and potentially confusing, since they would have suggested that the two phrases were not synonymous without providing any guidance as to how they differed. "[A] trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing . . . ." (People v. Moon (2005) 37 Cal.4th 1, 30.) Here, as the requested modified instructions were duplicative and potentially confusing, the trial court did not err in refusing to give them.
C. CSAAS Evidence and CALCRIM No. 1193
Defendant claims that the trial court prejudicially erred in permitting the prosecution's CSAAS expert to testify because all but one of the charged offenses involved defendant's communications with the police officer, not his communications with Jane, which in his view rendered CSAAS evidence irrelevant. Defendant also contends that instructing the jury with CALCRIM No. 1193 was prejudicially erroneous.
1. Background
The prosecution made an in limine motion seeking admission of CSAAS expert testimony by Anthony Urquiza. The defense opposed the motion. Defendant's trial counsel argued that CSAAS evidence would be irrelevant because four of the five counts did not even involve Jane, and the remaining count (the annoying count) did not involve significantly delayed reporting or any other "myth" concerning child sexual abuse. He argued that all of the charges were based on undisputed e-mails and did not depend on the credibility of Jane's trial testimony. "[T]he myths and misconceptions that supposedly Dr. Urquiza is going to disabuse the jury of don't exist in this case." The prosecution argued that Jane's credibility would be relevant to the annoying count.
The court deferred ruling on the motion until after Jane's testimony. After Jane's testimony, the court entertained further arguments from counsel on this issue. Defendant's trial counsel argued that none of the components of CSAAS applied. "[W]hat happened is not in debate here . . . ." He maintained that no "myths and misconceptions" existed in this case. The prosecutor argued that Jane's credibility was at issue because she had testified about her meeting with defendant (in the library), her "feelings," and her "counterintuitive" behavior.
The court decided that Urquiza could provide "very limited" testimony. It ruled that testimony about "grooming tactics" was not relevant. But Urquiza could testify about "why a child would not report" and a "typical response" to abuse. The court clarified that the prosecutor could ask about whether gift-giving might make a child reluctant to report and about why a child might continue to communicate even if the child was uncomfortable.
Urquiza's testimony on direct examination was quite brief. He testified that he did not know anything about this case and explained that there were "myths or misconceptions" about child sexual abuse victims. He explained that not all victims hate the perpetrator, and some are fond of the perpetrator. This could be true because the perpetrator provided the victim with "special attention" or "gifts." Even when a victim feels uncomfortable about the abuse, the victim may maintain a relationship with the perpetrator because the victim still likes the attention. Delayed disclosure of abuse is common. Victims often feel that they have done something wrong and are worried about getting in trouble, which can contribute to delayed disclosure.
The trial court instructed the jury with CALCRIM No. 1193: "You have heard testimony from Dr. Anthony Urquiza regarding [CSAAS]. [¶] Dr. Anthony Urquiza's testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him. [¶] You may consider this evidence only in deciding whether or not Jane Doe's conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of her testimony." The prosecutor made no mention of Urquiza's testimony in her argument to the jury.
2. Analysis
Defendant claims that the trial court abused its discretion in admitting CSAAS evidence because the evidence was irrelevant and more prejudicial than probative.
"The governing rules are well settled. (1) First, the decision of a trial court to admit expert testimony 'will not be disturbed on appeal unless a manifest abuse of discretion is shown.' [Citations.] (2) Second, 'the admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would "assist" the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness." '" (People v. McAlpin (1991) 53 Cal.3d 1289, 1299- 1300.) "Trial courts may admit CSAAS evidence to disabuse jurors of five commonly held 'myths' or misconceptions about child sexual abuse. [Citation.] While CSAAS evidence is not relevant to prove the alleged sexual abuse occurred, it is well established in California law CSAAS evidence is relevant for the limited purpose of evaluating the credibility of an alleged child victim of sexual abuse." (People v. Lapenias (2021) 67 Cal.App.5th 162, 171.)
Defendant's primary contention is that the CSAAS evidence was irrelevant because "the prosecution failed to identify any myth or misconception implicated by the case that needed to be rebutted by expert testimony." Not so. The prosecution identified two potential misconceptions that were implicated by Jane's testimony, and the trial court limited Urquiza's testimony to these two areas. Urquiza was permitted to testify only concerning the potential misconceptions that a child would not fail to report abuse and that a child would not have positive feelings about the abuser. He explained to the jury, based on his experience, why a child might fail to report or delay reporting abuse due to fear and shame and why a child might maintain positive feelings for an abuser despite the abuse, particularly where the abuser had given the child gifts. Both of these potential misconceptions were implicated in this case because Jane never reported the abuse even though it made her uncomfortable, and she testified that she enjoyed her interactions with defendant despite her uneasiness with his inappropriate sexual comments.
Defendant argues that Urquiza's testimony on these two limited topics should not have been admitted because Jane "adequately explained" her actions and feelings, thereby dispelling the need for expert testimony. We disagree. It was not an abuse of discretion for the trial court to decide that the jury's understanding of Jane's counterintuitive reactions would be enhanced by hearing Urquiza's expert testimony. The existence of some evidence potentially explaining what might otherwise be seen as counterintuitive behavior did not eliminate the relevance of Urquiza's expert testimony, which placed such behavior in context.
We also reject defendant's claim that there was no "need" for Urquiza's testimony because Jane's credibility was unchallenged. Defendant's trial counsel's cross-examination of Jane focused on her admission that she "really liked" discussing with defendant their "mutual interest" in games and anime. Defense counsel elicited Jane's testimony that she was not "bother[ed]" by defendant's gifts, but liked them, that she had never told him to stop e-mailing her, and that she did not believe that he was trying to have a sexual relationship with her. The obvious intent of this cross-examination was to suggest that defendant's interaction with Jane was inoffensive and could not be considered objectively annoying given that she had not discouraged him from continuing to interact with her, even though she had testified that some of his comments made her uncomfortable.
Defendant points out that proof of the elements of the annoying count did not depend on Jane's subjective responses as those elements are objective. (People v. Phillips (2010) 188 Cal.App.4th 1383, 1396.) "The forbidden annoyance or molestation is not concerned with the child's state of mind, but rather refers to the defendant's objectionable acts that constitute the offense." (People v. Lopez (1998) 19 Cal.4th 282, 290.) Nevertheless, the irrelevance of Jane's state of mind does not mean that Jane's responses to defendant's conduct were irrelevant, as they provided the context in which defendant's actions were to be evaluated to determine whether they were objectively annoying. Although Jane provided some explanation as to why she continued to converse with defendant, Urquiza's expert testimony provided the jury with background information that helped to explain why a child might maintain and even enjoy contact with someone who engaged in some conduct that made the child uncomfortable, and why such a child might not report such contact to an adult. This background information had some relevance in assisting the jury in evaluating whether defendant's conduct, in context, was objectively annoying.
Defendant alternatively claims that the trial court should have excluded Urquiza's testimony as more prejudicial than probative. The record does not reflect that defendant objected to Urquiza's testimony under Evidence Code section 352, and, in any case, the trial court's ruling allowed Urquiza to give only "very limited" testimony on narrowly restricted issues. Urquiza's testimony on these strictly limited issues was probative on those two issues, and the risk of prejudice was minimal due to the fact that the charged offenses were proved largely through undisputed e-mails. The defense at trial was solely that defendant lacked the requisite intent, and Urquiza's testimony did not touch on that issue. We find no abuse of discretion in the trial court's implicit conclusion that Urquiza's limited testimony was not substantially more prejudicial than probative.
Defendant also argues that Urquiza provided improper "profile evidence" when he testified that it was "common" for a child to fail to report abuse and to maintain a relationship with an abuser. Not only did defendant fail to make an objection on this ground below, but there was no basis for such an objection. Urquiza testified, based on his clinical experience, that it was common for sexually abused children to fail to report or delay reporting the abuse and to maintain a relationship with the abuser. Nothing in his testimony suggested any profiling of an abuser or a victim. Instead, he explicitly acknowledged that he knew nothing about this case and had no opinion about whether defendant had committed any offenses or Jane had been a victim of any offenses. And the jury was expressly instructed that Urquiza's testimony could not be utilized in deciding whether the offenses were committed. Defendant has failed to identify any error in this regard.
Finally, defendant contends that the trial court prejudicially erred in instructing the jury with CALCRIM No.1193 because the instruction permitted the jury to use Urquiza's testimony in evaluating Jane's credibility.
Defendant's challenge to CALCRIM No. 1193 is essentially identical to the challenge made by the defendant in People v. Brackins (2019) 37 Cal.App.5th 56 to CALCRIM No. 850. CALCRIM No. 850, much like CALCRIM No. 1193, tells the jury that it may use expert testimony about intimate partner violence (formerly known as Battered Women's Syndrome) in evaluating whether the victim's" 'conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony.'" (Brackins, at pp. 68-69.) The defendant claimed that by instructing the jury that it could use the expert testimony in evaluating the victim's "believability," the court was erroneously permitting the jury to use the "testimony to 'prove the occurrence' of the abuse." (Id. at p. 71.) This court rejected the challenge. "We reject this premise because it presumes that expert testimony that may be used by the jury to assist it in evaluating the credibility of an alleged abuse victim is prohibited evidence of whether the abuse occurred. If the expert testimony was not related in some way to whether the abuse occurred, it would be irrelevant. Expert testimony may not be improperly used to directly determine whether the abuse occurred. But like much of the other evidence that comes in at a trial, it may be used indirectly to assist the jury in evaluating whether the alleged victim's statements are believable." (Ibid.) The same is true here. CALCRIM No. 1193 properly told the jury that it could use Urquiza's testimony in evaluating the believability of Jane's testimony.
Defendant takes issue with two published cases that have rejected similar challenges to CALCRIM No. 1193. (People v. Gonzales (2017) 16 Cal.App.5th 494, 503-504; People v. Munch (2020) 52 Cal.App.5th 464, 474.) These cases found that CALCRIM No. 1193 properly permitted the jury to use the CSAAS evidence to "neutralize[ ] the victim's apparently self-impeaching behavior." (Gonzales, at p. 504; accord Munch, at p. 474.) We find nothing improper in this analysis, and we agree that CALCRIM No. 1193 properly permits the jury to use the CSAAS evidence in its evaluation of the believability of the victim's testimony. We therefore reject defendant's claim that CALCRIM No. 1193 is infirm in this respect.
D. Cumulative Prejudice
Defendant claims that multiple errors were cumulatively prejudicial. Since we have found no errors, there is no cumulative prejudice.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: BAMATTRE-MANOUKIAN, J., WILSON, J.