Opinion
H044479
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. DON TRAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1554329)
A jury convicted defendant Don Tran of committing a lewd or lascivious act on a child under 14, sending harmful matter to a minor, and indecent exposure. Defendant challenges the sufficiency of the evidence supporting the harmful matter conviction, and he argues that the sentence for that conviction should have been stayed under Penal Code section 654. For the reasons stated here, we will affirm the judgment.
I. BACKGROUND
The background facts are drawn from the prosecution's evidence at trial.
Super Bowl Sunday 2015 fell on February 1. Twelve-year-old D.D., his brother, and his father were spending the day at D.D.'s paternal grandparents' house. D.D.'s uncle (his father's brother) and his uncle's boyfriend (defendant) lived with D.D.'s grandparents and were home that day. Two cousins also joined to watch the game. During the game, D.D. left with defendant to go to Starbucks. From Starbucks they went to a parking lot where defendant let D.D. drive his car. D.D. drove for about 10 or 15 minutes, until defendant asked him to park the car. Once parked, defendant asked D.D. if he had any pubic hair. The question made D.D. uncomfortable, and he did not respond. Defendant then asked D.D. if he knew what "come" was. D.D.'s discomfort intensified and he became confused. Defendant told D.D. he was going to show him what come was, specifically sex videos about how people come. D.D. did not want to see the videos, but he acquiesced because "I [didn't] think saying no would help." Defendant showed D.D. sex videos on his phone. D.D. did not want to watch the videos so he looked away while defendant watched them. After about 10 minutes, defendant turned his phone off, said he wanted to come, and pulled down his shorts. Defendant began masturbating and told D.D. to remove his own pants. D.D. refused, and defendant felt D.D.'s penis through his pants with one hand as he continued to masturbate with the other hand. The offense continued for several seconds until D.D. opened the car door. At that point defendant said he was done, and the masturbation and molestation stopped. After driving for a few more minutes, D.D. said he wanted to go home. They switched seats and defendant drove them home, stopping en route for gas. Within minutes, D.D. told his brother and grandmother what had happened, and the police were contacted.
In a pretext call on February 4, defendant admitted to his boyfriend (D.D.'s uncle) that he had practiced driving with D.D. for about an hour and had shown D.D. pornographic videos. But he also said he had taken D.D. to a hair salon and had done nothing wrong. He was arrested the next day, and his cellphone was searched. The cellphone's browser history showed multiple pornographic websites visited before, on, and after February 1. The search showed several hardcore pornographic videos accessed during the time defendant and D.D. were in the parking lot.
II. TRIAL COURT PROCEEDINGS
Defendant was charged with committing a lewd or lascivious act on a child under 14 (Pen. Code, § 288, subd. (a); count 1), sending harmful matter to a minor (Pen. Code, § 288.2, subd. (a)(2); count 2), and indecent exposure (Pen. Code, § 314, subd. (1); count 3). Defendant called witnesses at trial who testified that on February 1 he brought D.D. to a hair salon where he worked, and he and D.D. spent about an hour at the salon while D.D. played with a phone. That hour coincided with the time the hardcore pornography had been accessed on defendant's phone. Defendant argued to the jury that D.D. may have accessed the videos at the salon without his knowledge, and D.D. had made up the molestation allegations because D.D.'s mother, who was "shaping him to become homophobic," did not like defendant or approve of defendant and D.D. being friends.
Defendant was found guilty of all charges. He was sentenced to the mitigated term of three years on count 1, a concurrent mitigated term of 16 months on count 2, and a concurrent 30-day jail sentence on count 3.
III. DISCUSSION
A. HARMFUL MATTER CONVICTION
Defendant argues that insufficient evidence supports the harmful matter conviction under California law and the federal due process clause. Sufficient evidence supports a conviction under the due process clause if, "viewing the evidence in the light most favorable to the prosecution, any rational trier of a fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) The same standard applies under the California Constitution. (People v. Berryman (1993) 6 Cal.4th 1048, 1083, overturned on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) In considering a challenge to the sufficiency of the evidence, "we review the entire record in a 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. Albillar (2010) 51 Cal.4th 47, 60.)
1. Elements of the Offense
Penal Code section 288.2 prohibits a person from exhibiting or offering to exhibit to a minor "any harmful matter," with the intent to sexually gratify the sender or the minor, or with the intent or for the purpose of engaging in a sexual act with the minor, or with the intent that either person touch an intimate part of the other. (§ 288.2, subd. (a)(1)-(3). Undesignated statutory references are to the Penal Code.) "Matter" is defined broadly as including a video recording or other pictorial representation or recording. (§ 313, subd. (b).) "Harmful matter" is defined as "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).)
The Penal Code's definition of harmful matter tracks the three-pronged test for obscenity pronounced by the United States Supreme Court in Miller v. California (1973) 413 U.S. 15, 24 (Miller) (obscene material is "limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value"). Thus, "to fall within the terms of section 288.2, subdivision (a), the material exhibited to the minor must be 'obscene' as defined by Miller, except that its socially redeeming values must be of a nature that can be appreciated by a minor." (People v. Dyke (2009) 172 Cal.App.4th 1377, 1383.) Under Miller, hardcore pornography is obscene. (People v. Powell (2011) 194 Cal.App.4th 1268, 1293 (Powell).)
2. Supporting Evidence
Defendant argues that the only descriptive evidence of the videos viewed in the car came from D.D.'s testimony, and that testimony—that defendant showed him "three videos of a naked man and a naked woman having sex"—was insufficient to establish that the content was patently offensive or lacked serious literary, artistic, political, or scientific value. He analogizes D.D.'s description of the videos to the description of television images in People v. Dyke, supra, 172 Cal.App.4th 1377. In that case, the minor described seeing on television "a naked female dancing, and a man and woman, from the waist up, 'having sex.' " (Id. at p. 1384.) In concluding the minor's description of the television images was insufficient to support a finding that the content was obscene, the Dyke court observed the minor offered "only a bare bones recital" of what she saw, which lacked any context by which a reasonable trier of fact could evaluate whether the images were patently offensive. (Id. at p. 1385.) The Dyke court noted that " 'sex and obscenity are not synonymous' " (ibid.), and further concluded there was no way to know and no reasonable basis for inferring from the minor's testimony that the images as a whole lacked " 'serious literary, artistic, political or scientific value for minors.' " (Id. at pp. 1386-1387.)
While D.D.'s description of the videos alone may be insufficient to establish harmful matter, the jury was presented with additional evidence distinguishing the case from Dyke and providing substantial evidence to support the conviction. The titles and descriptions of the videos accessed on defendant's phone during the time he was with D.D. is consistent with hardcore pornography. (Powell, supra, 194 Cal.App.4th at p. 1294 [describing hardcore pornography as showing aroused genitalia, ejaculation, or penetration].) The investigating detective testified that the videos were accessed from a pornographic website called X Videos.com. One of the videos, titled "Me Vengo En Su Culo" depicted a man ejaculating on a woman's buttocks after having anal intercourse. Another video, titled "After Getting Undressed by This Guy Before Her Boyfriend," depicted three young adults on a bed. The female and one of the men undressed and had sex while the other man watched. A third video was titled "Close-Up Vid of Teen Getting Fucked From Behind." That evidence is sufficient to establish that the videos were hardcore pornography patently offensive under Miller and California law.
The evidence is likewise sufficient to show that the videos lacked artistic, literary, scientific, or political value to a minor. The videos were accessed from a pornography website, not from any source of recognized artistic, literary, scientific, or political value. The titles and descriptions of the videos accessed do not suggest redeeming value for a minor.
Defendant acknowledges the investigating detective's testimony relating the description and content of the videos on his phone, but contends there was no evidence that defendant showed or offered those videos to D.D. To the contrary, D.D. testified that defendant told him he was going to show him sex videos about how people come. Defendant was sitting close to D.D. in the car, and D.D. saw the video content which he described as "a boy and a girl undressed," and naked men and women having sex. D.D.'s grandmother testified that D.D. told her that defendant " 'was watching these dirty videos with me,' " and " 'we were watching videos for a long time, dirty videos of two people, of a man and a woman. And they didn't have their clothes on,' " and " '[Defendant] said they were having sex. That's what sex means.' "
The detective testified that the viewing timeframe for those videos was between 4:54 p.m. and 5:02 p.m. on February 1, which coincides with the time the prosecution's evidence places defendant and D.D. in the parking lot, and that no other websites were accessed during that time. D.D. testified that he drove for a few more minutes after the molestation, and that defendant drove to a gas station on the way back to D.D.'s grandparents' home. The gasoline receipt found in the car shows that stop was made at 5:15 p.m. Thus, a reasonable juror could find from the collective evidence that defendant showed or offered to show D.D. the videos described by the investigating detective. The testimony of D.D. and his grandmother, together with the investigating detective's description of the videos, is reasonable, credible, and solid evidence from which the jury could find defendant guilty of count 2 beyond a reasonable doubt.
B. SENTENCING
Defendant argues that the trial court erred under section 654 by not staying the sentence for the harmful matter conviction because it was based on the same course of conduct as the conviction for committing a lewd and lascivious act on D.D. Defendant did not object to the imposition of sentence for that count in the trial court. The issue is properly before us, however, because imposing multiple sentences prohibited by section 654 constitutes jurisdictional error which need not be preserved to be corrected on appeal. (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3; People v. Isenor (1971) 17 Cal.App.3d 324, 336.)
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 applies "not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation]" (People v. Perez, supra, 23 Cal.3d at p. 551.) A single indivisible course of conduct is one in which the defendant had only one criminal intent or objective. (Powell, supra, 194 Cal.App.4th at p. 1296.) We review for substantial evidence the trial court's factual finding, implicit or explicit, regarding whether there was a single criminal objective. (Ibid.)
Defendant argues that his actions—driving D.D. to a parking lot, asking D.D. questions about sex, offering to show D.D. videos, and touching D.D.'s penis—constituted a single course of conduct because they transpired over a period of minutes with the sole intent to arouse D.D. sexually. We disagree with defendant's view that the evidence can show only a single intent, and conclude there is substantial evidence to support the trial court's implicit finding that defendant harbored separate intents for the two offenses.
Regarding the harmful matter conviction, defendant's intent to sexually arouse D.D. is shown by his asking D.D. whether he had pubic hair and knew what come was, by telling D.D. he was going to show him sex videos about how people come, by playing the videos for D.D, and by explaining them to him. Substantial evidence shows that defendant had the separate intent of gratifying himself when he committed the lewd act of touching D.D. After watching the videos, defendant put down his phone, told D.D. he wanted to come, and started masturbating. As he was masturbating he rubbed D.D.'s penis and stopped the simultaneous acts when he was "done."
IV. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Elia, J.