Opinion
B297585
08-10-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER WILLIAM ROBY, Defendant and Appellant.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Roberta L. Davis and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA145941) APPEAL from a judgment of the Superior Court of Los Angeles County, Sean D. Coen, Judge. Affirmed as modified with directions. Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Roberta L. Davis and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Christopher William Roby of forcible rape, committing a lewd act on a child, distributing or showing harmful matter to a child with specified intents, and other offenses. The trial court sentenced him to over 15 years in prison, and imposed various assessments, fines, and fees.
On appeal, appellant contends: (1) a photo of his penis, which he sent to the minor victim, was not "obscene" and therefore was insufficient to support his conviction for distributing or showing harmful matter to a minor; (2) the trial court misinstructed the jury on the elements of that offense; (3) the court erred by failing to instruct the jury on a lesser-included offense; (4) a $10 crime-prevention fine the court imposed constituted an unauthorized sentence; and (5) the court violated his constitutional rights by imposing assessments, fines, and fees without determining his ability to pay under People v. Dueñas (2019) 30 Cal.App.5th 1157, and his counsel was ineffective in failing to object on that ground.
We agree that the $10 crime-prevention fine was unauthorized and must be stricken. We otherwise affirm.
BACKGROUND
A. The Information
The Los Angeles County District Attorney charged appellant with, inter alia, forcible rape (Pen. Code § 261, subd. (a)(2)), committing a lewd act on a child (§ 288, subd. (c)(1)), distributing or showing harmful matter to a minor with specified intents (§ 288.2, subd. (a)(2)), unlawful possession of ammunition (§ 30305, subd. (a)(1)), and possession for sale of a controlled substance (Health & Saf. Code, § 11351). Appellant pleaded not guilty, and the case proceeded to trial.
Undesignated statutory references are to the Penal Code.
Other charges in the information are not relevant to appellant's challenges on appeal.
B. The Prosecution's Evidence at Trial
We detail only the evidence relating to appellant's offenses against D.W., as the other charges against appellant are not at issue on appeal.
1. Appellant's Rape of D.W.
In the early morning hours of March 8, 2018, 14-year-old D.W. ran away from her stepfather's house and started walking toward her mother's house, which was several miles away. At around 2:00 a.m., appellant, who was 39 years old at the time, approached D.W. and forced her into the passenger side of his car. D.W. did not know appellant. D.W. told appellant that she was 14 years old, but he said he did not care.
Appellant then drove D.W. to the back of a nearby 7-Eleven, and proceeded to rape her. When appellant was done, he asked D.W. for her Instagram account information. D.W. entered the information into appellant's phone, where she saw his Instagram account information. Appellant then drove D.W. to the vicinity of her mother's house, and before dropping her off, told her to text him. When D.W. saw her mother, she told her something had happened, and her mother called the police.
2. The Instagram Communications with Appellant
On March 12, 2018, D.W. spoke with Los Angeles County Sheriff's Detective Max Fernandez and told him about appellant's Instagram account. D.W.'s sister was also present. Detective Fernandez logged into D.W.'s Instagram account and told D.W. to initiate a conversation with appellant.
During the conversation, appellant provided a phone number and told D.W. to call him when she got to a phone. He later wrote, "Why I miss u already." After D.W. asked appellant to "[m]eet me at a&t burger," appellant replied, "I'm not out there right now. I'll be out there later." When asked what time he would be back, appellant said he did not know yet. At some point, D.W.'s sister took over the conversation and posed as D.W.
Appellant asked if D.W. was in Los Angeles. After D.W.'s sister said that she was, appellant wrote, "Why ma dicc get hard everytime I think about u." Around this time, Detective Fernandez took over and continued the conversation for the next day or two, posing as D.W. When appellant asked that D.W. send him pictures, Detective Fernandez asked if he wanted "sexy ones or juss a pics." Appellant responded, "All that lol."
After Detective Fernandez wrote, "I want to get out of this house," appellant asked how long D.W. could stay out of the house. Detective Fernandez asked what appellant wanted to do, to which appellant replied, "Anything. We just gon[na] chill hang out and do what eva." Detective Fernandez wrote, "Okay. I want to, but u betterand pull out. I'm not tryin b no 14 year old mom." Appellant said he promised "100 100 100 [percent]."
Detective Fernandez then wrote, "[You] send me a good pic. I will send [you] one." Appellant sent a closeup photo of his penis, and asked D.W. to "send me one of yo pussy." Fernandez represented that D.W. was trying to take a photo of her genitals but it was "not coming out right." Appellant then repeatedly tried to get D.W. to send him a photo.
Appellant later asked D.W. what she was doing. Fernandez replied, "Fighting w my mom. I don't think she's going to let me leave." Appellant responded, "Oh OK. We can chill a different day." He subsequently sent a message asking, "And what happened to the picture?"
About two days later, Detective Fernandez tried to initiate another Instagram conversation with appellant, but appellant's Instagram account had been deactivated. Detective Fernandez then used the phone number appellant had provided and appellant's Instagram account information to discover appellant's identity.
After the prosecution rested, appellant presented no evidence as to the charges involving D.W.
C. Verdict and Sentence
Following trial, the jury found appellant guilty of all charges involving D.W. (forcible rape, committing a lewd act on a child, and sending harmful matter to a minor with specified intents), and of unlawful possession of ammunition. The jury acquitted appellant of possession for sale of a controlled substance but convicted him of the lesser-included offense of possession of methamphetamine (Health & Saf. Code, § 11377). The jury could not reach an agreement as to other charges not relevant to this appeal, and the court declared a mistrial as to those charges.
The trial court sentenced appellant to a total of 15 years and four months in prison. The court also imposed various assessments, fines, and fees, including a $10 crime-prevention fine under section 1202.5. Appellant timely appealed.
DISCUSSION
A. Sufficiency of the Evidence
Appellant argues that the evidence was insufficient to support his conviction for distributing or showing harmful matter to a minor with specified intents, in violation of section 288.2, subdivision (a)(2), because the photo of his penis, sent to D.W. via Instagram, did not constitute harmful matter. In assessing the sufficiency of the evidence to support a conviction, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Lindberg (2008) 45 Cal.4th 1, 27 (Lindberg).)
Section 288.2, subdivision (a)(1), makes it a crime to send any "harmful matter" to another person the sender "knows, should have known, or believes" to be a minor, "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [the sender or the other person], 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, subds. (a)(1) & (2).) Section 313 defines "'[h]armful matter'" as matter that taken as a whole, (1) "appeals to the prurient interest," as measured by "[an] average person, applying contemporary statewide standards," (2) "depicts or describes in a patently offensive way sexual conduct," and (3) "lacks serious literary, artistic, political, or scientific value for minors." (§ 313, subd. (a).) This definition "essentially 'tracks' the three-prong test for obscenity articulated by the United States Supreme Court in Miller v. California (1973) 413 U.S. 15, 24 . . . (Miller)." (People v. Dyke (2009) 172 Cal.App.4th 1377, 1382-1383 (Dyke).)
Section 313's definition of "'harmful matter'" and Miller's test for obscenity differ in some respects. Notably, Miller requires that the relevant "work[]" lack "serious literary, artistic, political, or scientific value" generally (Miller, supra, 413 U.S. at 24), whereas section 313 focuses on the work's redeeming value "for minors." (§ 313, subd. (a).) We do not elaborate on these differences, as neither party relies on them.
While a matter's redeeming value under the third prong of section 313's definition is examined through the lens of a minor, whether it appeals to the prurient interest and depicts sexual conduct in a patently offensive way is assessed using adult standards. (People v. Powell (2011) 194 Cal.App.4th 1268, 1290.) In determining whether material may be considered obscene or harmful, "[a] reviewing court must, of necessity, look at the context of the material, as well as its content." (Kois v. Wisconsin (1972) 408 U.S. 229, 231; accord, Dyke, supra, 172 Cal.App.4th at 1385.)
As our Supreme court has made clear, "nudity does not equate with obscenity," and absent "'sexual activity,'" nudity is not obscene. (Bloom v. Municipal Court (1976) 16 Cal.3d 71, 79 (Bloom); accord, People v. Noroff (1967) 67 Cal.2d 791, 795 [nudist magazine containing nudity that was "in no sense calculated to stimulate a predominantly sexual response" was not obscene].) Thus, section 313's definition of harmful matter encompasses only patently offensive representations or descriptions of "specific 'hard core' sexual conduct," including "'ultimate sexual acts,'" "'masturbation,'" and "'lewd exhibitions of the genitals.'" (Bloom, supra, at 81, quoting Miller, supra, 413 U.S. at 25.)
Appellant does not argue the photo of his penis did not appeal to the prurient interest. Nor does he claim this photo had any serious literary, artistic, political, or scientific value for minors. Rather, he contends that this material depicted mere nudity, and was therefore not a patently offensive representation of sexual conduct for purposes of section 313. We disagree.
Appellant sent D.W. a closeup photo of his penis in the context of a graphic sexual conversation, during which he proposed that he and D.W. exchange photos of their genitals. Under these circumstances, a reasonable factfinder could find that appellant's photo was a patently offensive lewd exhibition of the genitals, fitting within section 313's definition of harmful matter. (See Bloom, supra, 16 Cal.3d at 81; cf. United States v. Salcedo (5th Cir. 2019) 924 F.3d 172, 178-179 [concluding, even without considering surrounding context, that photo of erect penis was obscene].)
Appellant contends it was unclear if his penis was erect in the photo, and thus that there was no lewd exhibition. But while the photo was subject to interpretation, the jury could reasonably have concluded that it depicted an erect penis. (See Lindberg, supra, 45 Cal.4th at 27.) Moreover, even if appellant's penis was not erect in the photo he sent D.W., the surrounding sexual context supports a conclusion that this photo constituted a lewd exhibition of appellant's penis. There was, therefore, sufficient evidence for the jury to conclude the photo was harmful matter under section 313, and that appellant had therefore violated section 288.2.
B. Erroneous Instruction on the Elements of Section 288 .2
1. Background
Appellant claims the trial court misinstructed the jury on the elements of distributing or showing harmful matter to a minor with specified intents. As described above, the mens rea component of that offense requires the prosecution to prove that the defendant acted "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [the defendant or the other person], 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), italics added.)
Following appellant's trial, the court instructed the jury that a person committed this offense if he acted "with the specific intent to arouse, appeal to, or gratify the lust or passions or sexual desires of that person or [the other person], or with the intent, or for the purpose 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." (Italics added.)
2. Analysis
Respondent concedes the trial court erred in listing the required intents under section 288.2, subdivision (a), in the disjunctive, rather than in the conjunctive. Respondent argues, however, that the error was harmless beyond a reasonable doubt and therefore does not require reversal. As explained below, we agree.
Omitting an element of the offense is subject to harmless-error analysis under the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (Neder v. United States (1999) 527 U.S. 1, 15.) Under that standard, an error is harmless if "it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" (Ibid.)
The trial court's instructional error was harmless beyond a reasonable doubt, because the evidence was overwhelming that appellant intended to meet with D.W. and engage in sexual activity specified in section 288.2. Appellant raped D.W. just five days before sending her the photo of his penis. After the rape, appellant asked D.W. to text him. In the Instagram messages, appellant discussed meeting with D.W., both before and after he sent his photo, volunteering that the mere thought of her caused him to become sexually aroused. Appellant told D.W. to call him, and later asked if she was in Los Angeles. When Detective Fernandez, posing as D.W., wrote, "I want to get out of this house," appellant asked how long D.W. could stay out. After Detective Fernandez asked what appellant wanted to do, appellant replied, "Anything. We just gon[na] chill hang out and do what eva." When Detective Fernandez wrote that appellant better "pull out," appellant promised he would: "100 100 100 [percent]." And when Detective Fernandez wrote that D.W. would not be able to leave, appellant replied they could "chill a different day." This evidence left no room for doubt about appellant's intention to meet with D.W. and have sex with her. (Cf. People v. Lee (1987) 43 Cal.3d 666, 679 [no reasonable juror would have entertained reasonable doubt about defendant's intent to kill where he fired at chasing officers from 15 to 20 feet away; thus, instructional error was harmless beyond reasonable doubt].)
Appellant does not contend that absent the error, the jury might have failed to find that he had acted with specific intent to arouse, appeal to, or gratify his or D.W.'s lust, passions, or sexual desires.
Appellant claims that despite this evidence, his intent to engage in sexual activity with D.W. was not conclusively established. He notes that when D.W. supposedly asked him to meet her at "a&t burger," he replied that he was not in the area and did not say when he would be. He further notes that after D.W. had supposedly told him she would not be able to leave the house, he did not suggest a particular day they could meet, and that he later deactivated his Instagram account. Given this evidence, appellant suggests he might have intended only to engage in fantasy or to persuade the victim to send him a photo of herself.
In support, appellant cites People v. Jensen (2003) 114 Cal.App.4th 224 (Jensen). There, the defendant sent explicit photos to police officers who posed as minor boys during online conversations. (Id. at 227-234.) These conversations included extensive discussions of various sex acts and suggestions that the defendant and the minors engage in them together. (Ibid.) Yet the defendant never attempted to meet with the minors, and "repeatedly deferred or rejected" the suggestions of one of them that they meet, at times citing concerns that he would be arrested. (Id. at 241.) The defendant was charged with violating former section 288.2, subdivision (b), the predecessor to current section 288.2, subdivision (a)(2). (Jensen, supra, at 235.) At trial, the defendant argued that he had no intention to meet the boys and that his communications with them were mere fantasy and entertainment. (Id. at 238.) After the trial court misinstructed the jury on the requirement that the defendant intend to engage in sexual activity with the minors, the jury found the defendant guilty. (Id. at 236, 241.) On appeal, the court concluded the instructional error was not harmless beyond a reasonable doubt, noting that "it was hotly contested at trial whether [the defendant] ever intended to meet with [the minors] and have physical contact" and that he had repeatedly declined invitations to meet with one of the minors. (Id. at 241.)
Jensen is distinguishable. The defendant in Jensen engaged only in remote sexual conversations with the purported minors: he never attempted to meet the minors, and repeatedly rebuffed invitations to meet in person, in part because he was concerned he would be arrested. He therefore had a reasonable argument that he intended to engage only in sexual conversations and fantasy. Appellant, on the other hand, raped D.W. before ever communicating with her remotely, decisively establishing his willingness to engage in sexual activity with the victim. And while the subsequent Instagram communications included sex talk, much of the conversation related to whether and when appellant and D.W. would be able to meet. Appellant went so far as to promise D.W. he would not risk impregnating her during intercourse. Under these circumstances, any claim that appellant intended to engage only in fantasy (a claim he never made at trial), would have gone far beyond the bounds of credulity of any reasonable juror. (Cf. People v. Lee, supra, 43 Cal.3d at 679; People v. Young (2019) 7 Cal.5th 905, 926-927 [no reasonable juror would have believed defendant's explanation that inculpatory statement to third party was "'posturing,'" given statement's unflattering content; thus, any error in admitting subsequent inculpatory statement was harmless beyond reasonable doubt].) Accordingly, the trial court's instructional error was harmless beyond a reasonable doubt.
C. Failure to Instruct on Lesser-Included Offense
Appellant argues that the trial court erred in failing to instruct the jury sua sponte on the offense of distributing or showing harmful matter to a minor under section 313.1, subdivision (a), as a lesser-included offense of section 288.2, subdivision (a)(2). A trial court has an obligation, even without a request, to instruct the jury on lesser-included offenses if there is substantial evidence to support a conclusion that the defendant committed that offense, but not the greater one. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) Section 313.1, subdivision (a), makes it a crime to send any harmful matter to a minor, either knowingly or after failing to exercise reasonable care in ascertaining the minor's age. (§ 313.1, subd. (a).) This provision does not require proof of any specific intent in sending the harmful matter.
Appellant contends the evidence required the trial court to instruct the jury on this offense. Respondent counters that (1) it is not clear that section 313.1 is a lesser-included offense of section 288.2; (2) the evidence did not warrant an instruction on section 313.1 even if it is a lesser-included offense, and (3) any error in failing to give the instruction was harmless. We need not decide whether section 313.1 is a lesser-included offense and whether the trial court erred in failing to instruct on it, as we agree that any error would have been harmless.
The failure to instruct sua sponte on a lesser-included offense in a noncapital case is an error under state law alone, and is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. (Breverman 19 Cal.4th at 165.) Appellant contends the jury could have found there was reasonable doubt whether he had intended to engage in sexual activity with D.W. But as discussed, no reasonable juror could have found appellant lacked the intent to engage in sexual conduct with D.W. It follows that there was no reasonable probability that the jury would have acquitted appellant of the offense under section 288.2 while convicting him of the offense under section 313.1
D. The Crime-Prevention Fine
Appellant claims the $10 crime-prevention fine the trial court imposed under section 1202.5 constituted an unauthorized sentence. Respondent agrees, as do we.
Section 1202.5, subdivision (a), states: "In any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, subdivision (a) of Section 487a, or Section 488, or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed." Appellant was not convicted of any of those enumerated offenses. Accordingly, the crime-prevention fine was unauthorized and must be stricken. (See People v. Jefferson (2016) 248 Cal.App.4th 660, 663 [crime-prevention fine under § 1202.5, subd. (a), may not be imposed for unenumerated offense].)
E. Constitutional Challenges to Assessments , Fines , and Fees
Appellant challenges the trial court's imposition of fines, fees, and assessments, arguing the court violated his right to due process by imposing them without determining his ability to pay. Before the trial court, appellant neither objected to these financial impositions nor requested a hearing on his ability to pay. Accordingly, he has forfeited his contention by failing to raise it below. (See Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 [arguments not raised before trial court are forfeited].)
We also reject appellant's alternative argument that his counsel's failure to object constituted ineffective assistance of counsel. "To secure reversal of a conviction for ineffective assistance of counsel, a defendant must establish that counsel's performance fell below an objective standard of reasonableness and that, to a reasonable probability, defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Kraft (2000) 23 Cal.4th 978, 1068, quoting Strickland v. Washington (1984) 466 U.S. 668, 687-694.) "If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft, supra, at 1068-1069.)
Nothing in the record reveals why appellant's trial counsel did not object to the assessments, fines, and fees, and appellant cannot show there could be no satisfactory explanation. For example, it is possible counsel determined that appellant, who identified his occupation as that of "safety inspector," was well able to pay the relevant monetary obligations and therefore chose not to raise a futile objection. (See People v. Memro (1995) 11 Cal.4th 786, 834 [defense counsel has no duty to make futile or frivolous objections].) Accordingly, appellant has not shown his counsel was constitutionally ineffective.
DISPOSITION
The judgment is modified to strike the $10 crime-prevention fine under section 1202.5 and is affirmed as modified. The trial court is directed to prepare a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. COLLINS, J.