Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC631253
BAMATTRE-MANOUKIAN, J.
Defendant Hiren Jagdish Patel was convicted after jury trial of attempted lewd conduct on a child under 14 (Pen. Code, §§ 664, 288, subd. (a)) and attempted distribution or exhibition of harmful matter to a minor by the Internet (§§ 664, 288.2, subd. (b)). The trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.
All further statutory references are to the Penal Code.
On appeal, defendant challenges the constitutionality of section 288.2, subdivision (b). He also contends that (1) the evidence is insufficient to support his conviction under that statute, (2) the probation condition restricting his computer use is unconstitutionally vague and overbroad, (3) his trial counsel rendered ineffective assistance by failing to object to the probation condition on that ground, and (4) the trial court erred in ordering payment of probation costs as a condition of probation. We agree with defendant’s last contention, but find no other error. Accordingly, we will modify the probation order and affirm the order as so modified.
BACKGROUND
Defendant was charged by information with attempted lewd conduct on a child under 14 (§§ 664, 288, subd. (a); count 1) and attempted distribution or exhibition of harmful matter to a minor by the Internet (§§ 664, 288.2, subd. (b); count 2).
The Prosecution’s Case
Campbell Police Officer Gary Berg testified as an expert on Internet sex predator cases that he created a profile for an Internet chat room under the name “sweetcalikelly” (hereafter, “Kelly”) as part of a chat sting operation. The officer did not include any age information in the profile he created, but listed cheerleading and volleyball as interests, and “school sucks” as a quote. On May 30, 2006, he was in a local chat room as “Kelly” when he was contacted by defendant, who was using the profile name “all4hp.” Defendant asked “Kelly” her age, sex, and location (“asl”), and “Kelly” responded “12/f/Campbell.” In response to “Kelly’s” inquiry, defendant responded that he was a 22-year-old male in Santa Clara. Defendant then asked “Kelly” if she liked older guys, if she had a boyfriend, and if she was “SEXY” and “a good Kisser.” He said that he was “Single and looking,” so that if she was sexy “i would love to meet u.” “Kelly” asked, “and then do what???” and defendant replied, “well if we like then we will see am very open minded guy.” “Kelly” said “I don’t even know u” and defendant replied “So that’s y we meet in a public place and if we like then go from there.”
A Yahoo archive of their chat was admitted into evidence as exhibit 2.
Defendant was 35 years old at the time.
“Kelly” asked defendant to send her his picture and he did. “Kelly” sent defendant a picture of a policewoman taken when she was 12 years old that the woman had allowed Officer Berg to use. Defendant asked “Kelly” whether she had “kissed any guy” “and what else have u done with a guy?” “[H]ave u touched a guys DICK?” “Has any guy touched ur VAgina?” When “Kelly” refused to answer, defendant asked, “so u like to have REAL sex?” “[D]o u want to try with me?” “[W]ell if u like then we can do.” “Kelly” asked, “but what r we gonna do?” Defendant replied, “kiss and suck ur nipples . . . in my car.” “[H]ave SEX.”
Defendant told “Kelly” that he drives a red Jetta, that he would bring condoms, and that they could meet at Morgan Park by her home. When she asked him to bring some hard lemonade, he asked, “Y do u get thirsty while fucking huh?” “Kelly” responded that “i like the taste.” Defendant asked, “can u wear something loose” “dont wear jeans” “wear something so i can put my hand in ur clothes.” Defendant asked, “so have u ever had sex before? or this is ur first time?” “Kelly” responded, “ive done other stuff … not the real thing . . .why?” Defendant replied, “so r u ok to do Real sex with me?” “i will do it very slowly ok.” Defendant told “Kelly” that he would meet her at the entrance to the park at 4:20 p.m., “so wear nice loose and sexy clothes ok.” The chat ended at 4:06:44 p.m.
Officer Berg and other officers positioned themselves in and around Morgan Park. Around 4:28 p.m., defendant drove by Officer Berg in a red Jetta and parked in a park parking lot. Defendant got out of the Jetta, went into the park and looked around. He was wearing a suit and seemed nervous. He walked about 100 yards towards a baseball field and then walked back, still looking around the park. He returned to his car, drove towards another parking lot, turned around, pulled to the curb and parked. He looked out towards the park, drove forward a little bit, parked again, and again looked out towards the park. Officer Berg decided to do an investigative stop and had a uniformed officer in a marked patrol car contact defendant.
The uniformed officer asked defendant for his identification and had him step out of the Jetta. Officer Berg then identified himself and asked defendant why he was at the park. Defendant said that he was meeting a female at the park that he had met online. On the center console of the Jetta was a handwritten note with the address of the park and directions to it from Kiely Boulevard. Defendant was placed under arrest and he and his car were searched. Neither condoms nor alcohol were found on defendant or in his car. Defendant was transported to the Campbell Police Department.
During Officer Berg’s interview of defendant after defendant waived his Miranda rights, defendant stated that he had been using the name “all4hp” while chatting online at work with a girl. He had 10 to 15 minutes before he had to go home to San Mateo, so he thought that he would meet the girl in the park. He had no idea what he planned to do when he got there. Although they had chatted about kissing, he was “just bluffing,” “just kidding around.” When the officer asked defendant why he would meet a 12-year-old girl, defendant replied, “Because of curiosity just to see somebody out there how that person looks? That’s the only reason I went.” When the officer said, “You weren’t bluffing,” defendant responded, “I’m curious, so I went.” “I have no intentions.” “The reason why I went there to see her and I would never have sex with somebody who is that age.” “Even if I would have seen the girl also, I would just kiss & hug her. That’s all, nothing more than that for sure.” “It’s just a normal kiss, not a real kiss (just a kiss on the cheek like it happens in daily life everywhere).” “Just see her and go home.”
Miranda v. Arizona (1966) 384 U.S. 436. A transcript of the interview was read to the jury and admitted into evidence as exhibit No. 6.
Officer Berg went to defendant’s workplace, seized his computer, and took it to a forensics lab. The parties stipulated that the computer was forensically examined at the lab in a scientifically approved manner and that the examination revealed the following: “The term ‘sweetcalikelly’ was found in 10 files, with 59 hits, including a portion of the chat between ‘sweetcalikelly’ and ‘all4hp.’ The photograph “me” was found in a folder on the desktop of the computer. [¶] The computer also showed 22 deleted chat logs on May 30, 2006. [¶] The computer was searched for images depicting child pornography, and none were found. [¶] The computer’s Internet history was retrieved.”
The Defense Case
Faisel Rana, a banker, testified that he has known defendant for almost four years. On May 30, 2006, he and other people, including defendant’s wife, gathered at Shalimar Restaurant in downtown San Francisco to celebrate defendant’s birthday. Rana arrived at the restaurant around 5:30 p.m., but he left after one hour when defendant failed to arrive.
The Verdicts and Sentencing
On April 2, 2007, the jury found defendant guilty of attempted lewd conduct on a child under 14 (§§ 664, 288, subd. (a); count 1) and attempted distribution or exhibition of harmful matter to a minor by the Internet (§§ 664, 288.2, subd. (b); count 2). On June 1, 2007, the court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions.
DISCUSSION
Constitutionality of Section 288.2, subdivision (b)
Section 288.2, subdivision (b), states in pertinent part: “Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet, . . . or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of . . . gratifying the lust or passions or sexual desires of that person . . ., and with the intent, or for the purpose of seducing a minor, is guilty of a public offense . . . .”
Defendant contends that his conviction for count 2 must be reversed because section 288.2, subdivision (b), is facially unconstitutional. He argues that the statute affects interstate commerce and regulates conduct occurring outside the state, thus violating the commerce clause. (U.S. Const., art. 1, § 8, cl. 3; see American Libraries Ass’n v. Pataki (S.D.N.Y. 1997) 969 F.Supp. 160; Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 208-217 (Hatch) (conc. & dis. opn. of McDonald, J.).) He further argues that the statute is overbroad, violating the First Amendment, because it prohibits legitimate speech directed to minors residing in states that have a lower age of consent than California. (See Hatch, supra, 80 Cal.App.4th at pp. 217-225 (conc. & dis. opn. of McDonald, J.).)
Defendant acknowledges that the California courts that have considered arguments similar to his have rejected those arguments. (See, e.g., Hatch, supra, 80 Cal.App.4th at pp. 192-204 [Fourth District, Division One]; People v. Hsu (2000) 82 Cal.App.4th 976, 982-991 [First District, Division Five] (Hsu).) He urges this court to reject the holdings of those courts.
This court recently considered arguments similar to defendant’s in People v. Garelick (2008) 161 Cal.App.4th 1107 (Garelick), and was not persuaded that Hatch and Hsu were wrongly decided. (Garelick, supra, at p. 1122.) “Both Hsu and Hatch noted that section 288.2(b) differs materially from the New York statute at issue in Pataki since section 288.2(b) requires the offender to communicate harmful matter to a known minor with the intent to seduce the minor, and this requirement greatly narrows the scope of the law and its concomitant effect on interstate commerce. [Citations.] The Hatch court explained that ‘[w]hile a ban on the simple communication of certain materials may interfere with an adult’s legitimate rights, a ban on communication of specified matter to a minor for purposes of seduction can only affect the rights of the very narrow class of adults who intend to engage in sex with minors. We have found no case which gives such intentions or the communications employed in realizing them protection . . . .’ ” (Id. at p. 1121.) “[W]e agree with those cases, find that the Pataki analysis does not apply to section 288.2(b), and conclude that the statute does not place an undue burden on interstate commerce in violation of the commerce clause.” (Id. at p. 1122.)
In addition, “the Hsu court agreed with the Hatch majority’s conclusion that section 288.2(b) was not impermissibly overbroad and found that the statute passes the strict scrutiny test.” (Garelick, supra, 161 Cal.App.4th at p. 1124.) “[S]ection 288.2(b) serves the compelling interest of protecting children from harmful material,” and the statute is “one of many specifically designed to ‘ “protect [] minors from sexual exploitation and predation.” ’ [Citation.]” (Ibid.) Moreover, the Hsu court found that the statute “is narrowly tailored to serve that compelling interest” in that it “employed the least restrictive means to achieve its purpose.” (Ibid.) “We agree with the analysis in Hsu that section 288.2(b) is sufficiently tailored to serve a compelling state interest and is therefore constitutional.” (Ibid.; see also, Simmons v. State (Fla. 2006) 944 So.2d 317, 323-335; State v. Backlund (N.D. 2003) 672 N.W.2d 431, 436-442; State v. Stone (Tex.Ct.App. 2004) 137 S.W.3d 167, 179-183.)
Defendant urges us to reconsider this court’s opinion in Garelick and to find that section 288.2, subdivision (b) is facially invalid. For the reasons stated in the opinion, we decline defendant’s request.
Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support his conviction for violating section 288.2, subdivision (b). Specifically, he contends that “the evidence was insufficient to prove that his chats constituted ‘harmful matter’ within the meaning of Penal Code section 313, subdivision (a).” He argues that the second prong of the three-prong test for obscenity set out in Miller v. California (1973) 413 U.S. 15, 24 (Miller) was not met, as there was insufficient evidence to prove that his communications with “Kelly” were “patently offensive” within the meaning of sections 313, subdivision (a), and 288.2, subdivision (b).
“A reviewing court faced with [an insufficiency-of-the-evidence] claim determines ‘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, italics omitted; see also People v. Kraft (2000) 23 Cal.4th 978, 1053.) We examine the record to determine ‘whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Further, ‘the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.]” (People v. Caitlin (2001) 26 Cal.4th 81, 139.)
“ ‘Harmful matter,’ as used in section 288.2, subdivision (b) incorporates the definition from section 313, subdivision (a): ‘[M]atter, 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.’ This definition essentially tracks the three-pronged test for obscenity articulated in Miller, supra, 413 U.S. at page 24: ‘[1] whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; [2] whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and [3] whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ ” (Hsu, supra, 82 Cal.App.4th at p. 992.) The consideration of contemporary statewide standards, rather than general community or national standards, is constitutionally permissible. (Miller, supra, 413 U.S. at p. 31.)
Under Miller, the question of what is “patently offensive” under the community standard obscenity test is essentially a question of fact. (Miller, supra, 413 U.S. at p. 30; Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 506.) Thus, we simply consider whether a rational trier of fact could have found defendant’s communications with “Kelly” to be patently offensive under contemporary statewide standards. Under this test, “the primary concern” is that the communication be “judged by its impact on an average person, rather than a particularly susceptible or sensitive person—or indeed a totally insensitive one.” (Miller, supra, 413 U.S. at p. 33; see also, People v. Wiener (1979) 91 Cal.App.3d 238, 245.)
On the record before us, we conclude that defendant’s inquiries about “Kelly’s” sexual history and his descriptions of the sexual acts he planned to perform constituted evidence sufficient to establish the “harmful matter” element of section 288.2, subdivision (b). We disagree with defendant that his communications do not rise to the level of describing or representing sex in a patently offensive manner within the meaning of section 313, subdivision (a). Here, defendant was communicating with a 12-year-old girl. In our view, the jury could have reasonably found that an average person would consider defendant’s graphic sexual questions and descriptions of lewd touching of and by a young girl, along with his crude references to private body parts and sexual intercourse, to be patently offensive.
Defendant argues that “there was absolutely no evidence presented regarding the relevant community standards.” We note, however, that the acts defendant described in his communications with “Kelly” constitute lewd conduct with a minor prohibited by section 288, subdivision (a), the court instructed the jury as to the elements of that offense, and the jury found defendant guilty of attempting that offense. Therefore, the jury necessarily found that evidence was presented regarding whether defendant’s conduct violated the relevant community standards. Where the Legislature and the community in general considers sexual conduct with minors so harmful and offensive as to be criminally punishable, we do not believe that any further evidence is necessary to establish that defendant’s communications regarding such conduct was patently offensive.
Probation Conditions
When imposing the terms and conditions of defendant’s probation, the court stated in pertinent part: “As additional conditions of probation, I will impose a $40 security fee pursuant to Penal Code section 1465. [¶] A $129.75 criminal justice administrative fee to the City of Campbell pursuant to Government Code section 29550. [¶] A presentence investigation fee not to exceed $450 pursuant to Penal Code section 1203.1B, the exact amount to be determined by the Department of Revenue based upon the defendant’s ability to pay. [¶] A probation supervision fee not to exceed $64 per month. Again, the amount to be determined by the Department of Revenue based upon the defendant’s ability to pay. [¶] I’m also going to impose an additional condition that the defendant not use a computer to engage in Internet chat rooms, social sites, or other similar activities.”
Defendant contends that the court erred in ordering him to pay a probation supervision fee as a condition of his probation. The Attorney General contends that the order to pay the probation supervision fee was not a condition of probation. We note that the probation report recommended that a probation supervision fee not to exceed $64 per month be imposed pursuant to section 1203.1b, but it did not recommend or suggest that payment of the fee be made a condition of probation.
“[A] trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. (§ 1203.1b; People v. Hart (1998) 65 Cal.App.4th 902, 907.)” (Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321; see also People v. Bennett (1987) 196 Cal.App.3d 1054, 1056-1057.) We agree with defendant that the grant of probation in this case did include an order for payment of a probation supervision fee as a condition of probation. The court stated that it was imposing “additional conditions of probation,” and then listed four separate fees. On this record, we can only conclude that all four of the then listed fees were the “additional conditions of probation” the court intended to impose. The probation supervision fee was the fourth listed fee. “Accordingly, the order granting probation must be modified to delete the order to pay costs of probation from the conditions of probation, making it simply an order entered at judgment. As such, the order may be enforced as permitted in the relevant statutes.” (People v. Hart, supra, at p. 907.)
Defendant also contends that the probation condition prohibiting him from using a computer to engage in “Internet chat rooms, social sites or other similar activities” is unconstitutionally over broad and vague. He argues that the condition is overbroad as it “prohibits uses that may have a legitimate communication or informative function as well as those that do not.” For instance, the condition “may very well have the effect of prohibiting [defendant] from communicating with his parents and other family and friends in India via e-mail or other forms of Internet communication.” Defendant further argues that the condition is vague, as the court did not define “social sites” or “other similar activities.” “There is a virtually limitless number of activities in which [defendant] might engage that could result in his being deemed to have violated this condition.” For instance, he may wish to “participate in an on line seminar or work-related meeting or discussion.”
The Attorney General first contends that defendant has waived this claim on appeal by failing to object to the condition below. As defendant contends that his trial counsel rendered ineffective assistance by failing to object to the probation condition when imposed, we will reach defendant’s claim. (See Strickland v. Washington (1984) 466 U.S. 668, 693-694; In re Marquez (1992) 1 Cal.4th 584, 602-603.) The Attorney General also contends that the probation condition is constitutional as it is reasonably related to present and future criminality. We agree with this latter contention.
In granting probation, courts have broad discretion to impose terms and conditions to foster rehabilitation and to protect public safety pursuant to section 1203.1. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal); see also People v. Welch (1993) 5 Cal.4th 228, 233 (Welch).) “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .’ [Citation.] Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted; People v. Balestra (1999) 76 Cal.App.4th 57, 65 (Balestra).)
Probation conditions have been upheld even though they restrict a probationer’s exercise of constitutional rights so long as they are narrowly drawn to serve the important interests of public safety and rehabilitation (People v. Keller (1978) 76 Cal.App.3d 827, 839, disapproved on another ground by Welch, supra, 5 Cal.4th at p. 237), and are specifically tailored to the individual probationer. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; see also People v. Zaring (1992) 8 Cal.App.4th 362, 370.) Probation conditions regulating free speech and expression are carefully scrutinized, as they pose a particular danger of abuse. (See Keller, supra, at p. 839; People v. Harrisson (2005) 134 Cal.App.4th 637, 641-642 (Harrisson).)
Against the framework of these principles, we review the trial court’s imposition of conditions of probation for abuse of discretion. (Carbajal, supra, 10 Cal.4th at p. 1121; Balestra, supra, 76 Cal.App.4th at p. 65.) A broad prohibition on the use of a computer and the Internet that bears no relation to the defendant’s conviction and imposes a greater restriction of his or her rights than is reasonably necessary constitutes an abuse of discretion. (In re Stevens (2004) 119 Cal.App.4th 1228, 1239 (Stevens).)
In Stevens, a convicted child molester was released on parole, and a parole condition prohibited his use of computers and the Internet even though his crime did not involve a computer. The appellate court concluded that the parole condition was unreasonable. (Stevens, supra, 119 Cal.App.4th at p. 1231.) Unlike the parole condition at issue in Stevens, the probation condition at issue here is not a broad prohibition. Defendant is permitted to use a computer and to access the Internet. Thus, the condition does not restrict defendant from accessing work-related websites, seminars, or discussion groups. Defendant is also allowed to use electronic mail to communicate with his family, friends, and coworkers. The probation condition simply precludes his access to social chat rooms, social websites, and social discussion groups. As defendant was convicted of using an Internet chat room in an attempt to distribute harmful material and to commit lewd conduct on a minor, this probation condition is reasonably related to the offenses of which defendant was convicted and to future criminality. “In upholding the probation conditions imposed in this case, we recognize the ubiquity of the Internet and its power as a tool of commerce, information, and entertainment. Nonetheless, when such a beneficial tool is put to evil use, there is no constitutional impediment to restrictions calculated to forestall a recurrence.” (Harrisson, supra, 134 Cal.App.4th at p. 647.)
DISPOSITION
The probation order (the judgment) is modified to delete the requirement to pay the costs of probation supervision as a condition of probation and to add the order that defendant pay such costs not to exceed $64 per month according to his ability to pay. As so modified, the probation order is affirmed.
WE CONCUR: ELIA, ACTING P.J. DUFFY, J.