Opinion
E081099
11-30-2023
In re S.S., a Person Coming Under the Juvenile Court Law. v. S.S., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J293231 Tony Raphael, Judge. Reversed.
Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
CODRINGTON Acting P. J.
I.
INTRODUCTION
Following a jurisdictional hearing, the juvenile court found true that defendant and appellant S.S. (minor) committed the offense of possessing and sending obscene material (Pen. Code, § 311.2, subd. (a)). On appeal, minor argues that there was insufficient evidence of sexual conduct and obscenity in the photograph to support the obscene material charge. The People agree, as do we. We thus reverse the juvenile court's true finding.
Unless otherwise stated, all future statutory references are to the Penal Code.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2021, then 14-year-old A.G. took two nude selfies while standing in front of her bathroom mirror with her cellphone. The first photograph was of her front side, which included her breasts, with her legs crossed. A.G.'s vagina was not visible. The second photograph was a reflection from the mirror of her backside revealing her buttocks. In the photographs, A.G. was not touching herself or doing anything sexual to herself.
A.G. stored the photographs in a password protected folder entitled "For My Eyes Only" within Snapchat. She did not intentionally or accidentally send out the photographs. She also never shared her password to the folder containing the photographs. Following the school holiday break, A.G. discovered that the photographs were being shown to students at her high school. Then 15-year-old minor, one of A.G.'s classmates, received both photographs from an anonymous number and sent them to A.G. over Instagram. A.G. acknowledged that other students at her school had also received the photographs.
According to text message exchanges between minor and A.G., minor informed A.G. that he had sent the photograph to her to let her know that she should change her Snapchat password.
A.G. did not see her photographs on minor's phone and never heard minor talking to others about A.G.'s photographs. Sometime later however, minor approached A.G. while she was talking to K.B., a mutual friend at that time, and showed K.B. one of the nude photographs and told K.B. to "'[g]et at that.'" K.B. testified that he could not remember which of the photographs he was shown. K.B. understood "'[g]et at that'" to mean "try to be her boyfriend." A.G. later heard that minor was calling A.G. a "ho" and "weird."
After discovering the photographs were sent out, A.G. deleted both photographs from her phone. She subsequently saved the copy minor had sent to her of the first, frontal photograph and added an emoji to cover her torso and upper thigh region. This copy with the emoji was later entered into evidence as exhibit 1.
In May 2022, a Welfare and Institutions Code section 602 juvenile wardship petition was filed alleging minor committed misdemeanor possession and distribution of obscene photographs. (Pen. Code, § 311.2, subd. (a).)
Following the People's presentation of evidence at the March 2023 jurisdictional hearing, minor filed a motion to dismiss the allegation. Minor's counsel argued that the evidence did not depict obscene material as defined by CALCRIM No. 1142 and caselaw. Counsel maintained that the photograph had to describe or show sexual conduct, which was not shown in this case as the nude photograph that A.G. took of herself did not show any sexual conduct or appeal to any prurient interest. The prosecutor noted that the People were relying on exhibit 1, the picture of A.G.'s front side, to prove the violation and believed the redacted photograph showed A.G.'s pubic area despite A.G.'s testimony otherwise. The prosecutor claimed it was sexually suggestive because even though it was taken in the bathroom, it was not an innocent bath time photograph or a family photo but a nude photo which is considered "sexual attire." Minor's counsel responded that the prosecutor was asking the court to engage in speculation to make the true finding, by speculating that the focal point of the photograph was the genitalia even though the court never saw the actual photograph. Counsel pointed out that the sole area the court could see was A.G.'s shoulders and her thighs in the redacted photograph shown in exhibit 1.
After argument, the juvenile court denied minor's motion to dismiss the petition. The court, focusing on the unredacted version of exhibit 1, despite that it never saw the original unredacted copy, in detail explained the elements of the allegation. The court noted that "the sexual conduct that they're proceeding under is the one that deals with the exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer." In discussing the photograph, the court explained, "we have the photo-a full nude photo of a 14-year-old female," "[n]ow, I know during direct examination [A.G.]" first testified "her vagina was showing." On cross-examination "when asked if her vagina was showing in the photo, she said, 'No.'" The court concluded, based on the testimony, "at a minimum the pubic area of [A.G.] would have been visible in the photograph even if her legs were crossed, as she testified." The court narrowed the question to "whether the photo-the unredacted version of the photo, . . . would depict some sexual conduct and would fall under the definition of being obscene." The court continued, "And the question is whether the conduct is intended or designed to elicit a sexual response in the viewer. And here the Court finds that in this case the unredacted version of a 14-year-old female, frontal nude photo showing her breasts and her pubic area in a close-up in the bathroom meets the definition of being obscene under CALCRIM in the California law."
After the defense rested calling no witnesses, the juvenile court found true the allegation that minor violated section 311.2, subdivision (a). The court found A.G. and K.B.'s testimony to be credible. The court explained, "during the testimony of [A.G.], at one point early on direct she said that her vagina was showing, and then later on she said no on cross. [¶] . . . [¶] . . . But, regardless, at a minimum, as I stated earlier, even if with her legs crossed, at a minimum the pubic area would have been shown." Focusing on exhibit 1, the court continued, "[A.G.] testified that even though she saw [minor] show others at school the photos of her phone-on his phone, the photos on his phone, or photos on his phone and made comments to her, she did not actually see the photos from his phone that he was showing to the others." The court also acknowledged, then "[K.B.] testified that he does not remember if [minor] showed him the photo of the front or the back of [A.G.]" And then, as to which of the photos it was, he testified, "[t]he front, I think. I don't really remember." The court also noted, "There was indication that-or evidence that [minor] had shown the photo to more than one person. [¶] And when he showed it to [K.B.], [minor] made statements, quote, 'Get at that,' and also referred to [A.G.] as a ho." The court determined, "at a minimum the photo that [minor] would have shown was the photo of the front since he had both photos and-and he was showing them around. It would not make any sense that he would only show the photo of the backside and not the more-I think the People referred to it as 'salacious' in their argument earlier, the front nude." Minor was subsequently placed on summary probation in the custody of his father. Minor timely appealed.
III.
DISCUSSION
Minor argues there was insufficient evidence to support the juvenile court's true finding that he committed a violation of section 311.2, subdivision (a), possession and distribution of obscene photographs, because the court's findings were based on speculation and conjecture and the photographs were not intended to sexually stimulate anyone. The People concede. Under the circumstances of this case, we also agree.
In this appeal challenging the sufficiency of the evidence to support a juvenile court judgment, "we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal." (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) Thus, "[i]n a challenge to the sufficiency of the evidence to support a jurisdictional finding, the issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) "But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record. '"[A] reasonable inference . . . 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.'"' [Citations.] It 'must logically flow from other facts established in the action,' and it cannot be 'based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.' [Citation.]" (People v. Ware (2022) 14 Cal.5th 151, 167-168.)
We must affirm if we find "evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) "'"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends."'" (People v. Penunuri (2018) 5 Cal.5th 126, 142.) "However, '[e]vidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction.'" (People v. Tripp (2007) 151 Cal.App.4th 951, 955956; see People v. Wader (1993) 5 Cal.4th 610, 640-641.) "'Substantial evidence must be more than evidence which merely raises a strong suspicion of guilt as mere suspicion will not support an inference of fact.' [Citation.]" (People v. Thongvilay (1998) 62 Cal.App.4th 71, 79.) To withstand an insufficiency of the evidence challenge, the trial court must find and the record must contain evidence substantial enough to support the finding of each essential element of the crime. (United States v. Gaudin (1995) 515 U.S. 506, 522-523; People v. Johnson (1992) 5 Cal.App.4th 552, 558.) That means not only every element of the offense, but also all of the "facts necessary to establish each of those elements." (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.)
Minor was charged with violating section 311.2, subdivision (a), which in relevant part, provides: "Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor."
Section 311, subdivision (a), defines "[o]bscene matter," as "matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political or scientific value." Neither section 311 nor section 311.2 specifically define sexual conduct. Section 311.4, subdivision (d)(1), however, provides a relevant definition-a definition the trial court here adopted in denying minor's motion to dismiss the allegation. That provision states that sexual conduct includes "exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer." (§ 311.4, subd. (d)(1).) Similarly, section 311.3, subdivision (b)(5), defines "[e]xhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer." (§ 311.3, subd. (b)(5).)
CALCRIM No. 1142, alternative 1D-distributed, instructs that to find a person guilty, the trier of fact must find: "[t]he defendant [showed] obscene material to someone else," and, "[w]hen the defendant acted, [h]e knew the character of the material." The instruction also provides factors for the trier of fact to consider in determining guilt: "You must decide whether the material at issue in this case meet[s] the definition of obscene material. Material, when considered as a whole, is obscene if: [¶] 1. It shows or describes sexual conduct in an obviously offensive way; [¶] 2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value; [¶] AND [¶] 3. An average adult person applying contemporary statewide standards would conclude that it appeals to a prurient interest. [¶] A prurient interest is a shameful or morbid interest in nudity, sex, or excretion." (Italics omitted.) The instruction further asserts, "[t]he depiction of nudity, by itself, does not make material obscene. In order for material containing nudity to be obscene, it must depict sexual activity and must meet the requirements for obscenity listed above." (CALCRIM No. 1142; see People v. Cantrell (1992) 7 Cal.App.4th 523, 542-543 (Cantrell) ["simple, straightforward nude photographs of children without more would not fall within the purview of the statute"].)
People v. Kongs (1994) 30 Cal.App.4th 1741 (Kongs), adopting factors identified in United States v. Dost (1986) 636 F.Supp. 828, 832 (Dost), noted six factors to consider in determining whether a visual depiction of a minor constitutes a prohibited exhibition of the genitals or pubic area: (1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is clothed, fully or partially, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; and (6) whether the visual depiction is intended to elicit a sexual response in the viewer. (Kongs, at pp. 1754-1755.) "With the exception of factor No. 6, which is a required element of a Penal Code section 311.4 violation, a trier of fact need not find that all of the first five factors are present to conclude that there was a prohibited exhibition of the genitals or pubic or rectal area: the determination must be made based on the overall content of the visual depiction and the context of the child's conduct, taking into account the child's age." (Kongs, at p. 1755.)
Other courts have also emphasized that "consideration of the specific Dost factors is not mandatory under section 311.4," and reiterated that in ruling on a sufficiency challenge in this context, a reviewing court must consider the overall content of the visual depiction and the context of the child's conduct in determining whether the photograph depicts an exhibition of the genitals for the purpose of sexual stimulation of the viewer. (People v. Spurlock (2003) 114 Cal.App.4th 1122, 1133.) The court acknowledged the complexity of the consideration, noting "[w]hether a particular display is an illicit exhibition is a more complicated inquiry than simply asking whether the genitals are exposed. Photographs showing a partially clad pubic area may well be intended to elicit a sexual response on the part of the viewer." (Id. at p. 1129.) The court in Cantrell, supra, 7 Cal.App.4th at p. 543, which discussed the constitutionality of section 311.4 and found the statute to be not overbroad, highlighted that the statute requires the material to be "'for the purpose of sexual stimulation of the viewer,'" thus preventing any overzealous prosecutions of parents photographing their children playing at bath time. (Id. at p. 542.)
In this case, after analyzing the Dost factors, the juvenile court found true minor violated section 311.2, subdivision (a), possession and distribution of obscene material. The court acknowledged that in direct examination, A.G. stated that her vagina was showing, yet on cross-examination, answered "'No'" to the very same question. After examining the photograph and considering A.G.'s testimony, the court determined that "at a minimum the pubic area of [A.G.] would have been visible in the photograph even if her legs were crossed, as she testified" in direct examination. The court then inferred that the photograph minor showed K.B. was exhibit 1 because, "[i]t would not make any sense that he would only show the photo of the backside and not the more-I think the People referred to it as 'salacious' in their argument earlier, the front nude." The court then analyzed the Dost factors and found that the photograph satisfied the fourth factor that A.G. was fully nude in the photograph. The court later added, "age is-is an important factor," and noted, "it is a 14-year-old female, fully nude, and a close-up showing her breasts and at a minimum her pubic area." The court then reiterated the central issue of "whether the conduct is intended or designed to elicit a sexual response in the viewer." The court found that "the unredacted version of a 14-year-old female, frontal nude photo showing her breasts and her pubic area in a close-up in the bathroom" was intended to elicit a sexual response in the viewer and therefore met "the definition of being obscene under CALCRIM in the California law."
However, the juvenile court's findings are not supported by substantial evidence. There was no evidence the photograph of A.G. that was shown was created for the purpose of sexual stimulation of the viewer. There was also no evidence that the exhibition of A.G.'s pubic area was for the purpose of sexual stimulation of the viewer. A.G. took the photographs herself and did not pose sexually, unnaturally, or with sexual coyness. There was no sexual suggestiveness in the photograph. There was no evidence that A.G. was forced, coerced, persuaded, or even induced by anyone in taking the nude photographs and no one else was present or depicted in the photograph. The evidence merely showed that the photograph was a nude selfie taken by a 14-year-old girl for her eyes only in her bathroom, not a place of sexual suggestiveness. Nor were there any props or clothing that would have added any sexual connotations to the photographs. There was no evidence as to why A.G. took the photographs, so it is unclear if they were taken for personal use or for another reason. Even if we agree with the juvenile court's finding that A.G.'s pubic area would be visible without the emoji, there was no evidence that the exhibition was for the purpose of sexual stimulation of the viewer. In addition, there was no evidence that the photograph minor showed K.B. was the first full frontal nude photograph. K.B. testified that he did not remember which photograph was shown. The court inferred that the full frontal nude was the photograph shown because it was more "salacious" than the photograph of A.G.'s backside.
We conclude that the juvenile court's true finding was based on speculation and conjecture, rather than any evidence in the record. Accordingly, there was insufficient evidence to support the court's true finding minor violated section 311.2, subdivision (a).
IV.
DISPOSITION
The juvenile court's true finding minor violated section 311.2, subdivision (a), is reversed.
We concur: FIELDS J. RAPHAEL J.