P. v. Barilo
Filed 9/11/13 P. v. Barilo CA4/3
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
VIKTOR BARILO,
Defendant and Appellant.
G047386
(Super. Ct.
No. RIF138738)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Harry A. Staley, Judge. (Retired judge of the Kern Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed in part and remanded
with directions.
Rex Williams, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Melissa Mandel and Kathryn Kirschbaum, Deputy
Attorneys General, for Plaintiff and Respondent.
Viktor Barilo
(defendant) appeals from the judgment following his conviction on six counts of
attempted sex crimes involving a minor: count 1, attempted lewd and lascivious
conduct on a minor under the age of 14 (Pen. Code §§ 664, 288, subd. (a);
all further statutory references are to this code); count 2, attempted oral
copulation with a minor under the age of 14 and at least 10 years younger than
defendant (§§ 664, 288a, subd. (c)); count 3, attempted showing up at an
arranged meeting with a person believed to be a minor with intent to engage in
lewd and lascivious acts (§§ 664, 288.3, subd. (b)); and counts 4-6,
attempted showing, distributing or sending harmful material to a minor with the
intent of seducing the minor (§§ 664, 288.2, subd. (a).) With credit for time served, defendant was
sentenced to a total of 20 months in prison, but execution of that sentence was
suspended and defendant was placed on probation for 3 years.
Defendant challenges his
convictions on all counts other than count 1 on the merits, arguing: (1) his conviction on count 2 (attempted oral
copulation) must be reversed because it is unsupported by
on count 3 (attempting to show up at a meeting with a person believed to be a
minor with the intent to engage in lewd and lascivious acts) must be reversed
because the court failed to properly instruct the jury on all the elements of
the offense; and (3) his convictions on counts 4-6 (attempted showing
distributing or sending harmful material to a minor with the intent of seducing
the minor) must be reversed because the crime is facially overbroad in
violation of the First Amendment. We
reject these contentions and consequently affirm defendant’s convictions.
Defendant also claims
the $200 fine imposed against him pursuant to section 288 was unauthorized and
must be stricken, and contends that two minute orders reflecting his
convictions and sentence are erroneous and must be corrected. We conclude the fine was proper, but as the
Attorney General concedes, the minute orders are both inaccurate. On remand, the minute orders must be
corrected.
FACTS
Defendant’s convictions
arose out of a sting operation. In June
2007 he initiated contact through an Internet chat room with a person using the
name “Jazzzyjen113†(Jazzzyjen) whom he believed to be a 13-year-old girl. Jazzzyjen was instead a police
detective. Once he established contact
with Jazzzyjen, defendant asked if they could communicate privately, using
instant messaging. Thereafter, the two
engaged in an explicit conversation about Jazzzyjen’s sexual experience, her
likes and dislikes, and her interest in “[o]lder guys.†Jazzzyjen asked defendant if he liked “having
fun,†and he replied “I love it, but it’s jail time for me LOL you are
13.â€
In the course of the
conversation, defendant asked Jazzzyjen if she was alone and when her mother
was likely to be at work. After
defendant and Jazzzyjen exchanged photographs (defendant’s was made using his
computer’s Web camera and Jazzzyjen’s was “a stock photo off the Internetâ€),
defendant used his Web camera to display his erect penis to Jazzzyjen. Defendant asked Jazzzyjen if she wanted to
“suck†and she replied “yeah.†After
some further explicit conversation, Jazzzyjen claimed her mother had arrived
home, asked defendant when they could chat further, and terminated the
conversation.
Less than two weeks
after the first conversation, defendant initiated contact with Jazzzyjen
again. As before, their conversation was
sexually explicit, with defendant asking Jazzzyjen what she liked and the
extent of her sexual experience. He also
described in some detail what sex acts he would like to engage in with
her. He sent her a video of his face and
a photograph of his penis. He offered to
meet with her at her home while her mother was at work.
The next day, defendant
initiated a third conversation with Jazzzyjen.
Again, the conversation was sexually explicit, with defendant suggesting
sexual acts for Jazzzyjen to engage in, and her claiming a reaction to having
done so.
Defendant initiated his
fourth conversation with Jazzzyjen four days after the third. He told Jazzzyjen he wanted to meet with her
and “play.†She told him her mother was
then on vacation, so “maybe next week.â€
Defendant told Jazzzyjen he wanted her to be his “naughty girl,†and
described explicit sexual acts he wanted to perform on her. She asked if he had “any of those porn videos
we can watch,†suggesting a movie might “give me some ideas on how to tease
you.â€
Five days after that, on
July 28, 2007, Jazzzyjen sent defendant an address where they could meet – a
shopping center near the freeway. He
responded on July 30, telling her that “[s]ometime[] in mid-August I will come
over and spend a day with you. We just
have to figure out when.â€
On August 6, 2007,
defendant initiated yet another conversation, once again sexually explicit, and
they discussed meeting the following week.
And again he sent her a video of his exposed penis.
Three weeks later, on
August 27 (a Monday), defendant again contacted Jazzzyjen and suggested
“[m]aybe I’ll come over on Wednesday.â€
After Jazzzyjen replied “[t]hat’d be cool,†he told her “[y]ou can suck
my dick real good then.†He asked her
for her address, but she informed him “you won’t be able to find it†and then
suggested “we can meet at Farmer Boys [the shopping center she’d identified
previously] a couple of blocks away, and then I can show you the way
here.†He agreed, and requested she not
wear panties to their meeting “so I can start fingering you in the car.†At her request, he described the make, model
and color of the car he would be driving.
He then told her “I’m going to pick you up and take you home. That’s where the real fun will begin.â€
On August 29, the
meeting was postponed to the next day.
On August 30, when defendant showed up at the shopping center, driving
the car he had described to Jazzzyjen, he was arrested. A subsequent search of his home and computer
connected him to the communications with Jazzzyjen. The search of defendant’s computer also
revealed evidence of hundreds of other “chats†with Internet users who
described themselves as girls under the age of 18, although defendant disputed
that those chats – carried out under a different screen name than the one he
admittedly used with Jazzzyjen – were his.
Defendant also admitted
he had been engaging in “those kinds of chats†at issue in this case for years,
but claimed he had never engaged in sexually explicit chats with anyone he did
not believe to be an adult. He denied
believing Jazzzyjen was 13, and characterized their chats as “some kind of a
game,†noting that people often lie about themselves in Internet chat
rooms. Defendant emphasized that he and
Jazzzyjen both used “LOL†a lot in their exchanges, and claimed that usage
revealed both of them were treating the conversations as a joke. He testified he had believed Jazzzyjen to be
an adult when he agreed to meet her at the shopping center, and that he would
have driven away if approached by a 13-year-old girl.
DISCUSSION
Sufficiency of the Evidence to Establish Attempt
Defendant first argues
that his conviction on count 2, attempted oral copulation with a minor under
the age of 14 and at least 10 years younger than he, is unsupported by
substantial evidence that when he travelled to the shopping center, he did so
with the specific intent to engage in oral sex with the fictional Jazzzyjen. We disagree.
“‘In assessing the
sufficiency of the evidence, we review the entire record in the light most
favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citations.]’
[Citation.] We resolve all
conflicts in the evidence and questions of credibility in favor of the verdict,
and indulge every reasonable inference the jury could draw from the
evidence. [Citation.] This standard applies whether direct or
involved.†(People v. Mendez (2010) 188 Cal.App.4th 47, 56.)
Defendant points out
that in order to be convicted of an attempt, the evidence must show he went
beyond mere preparation and took an “immediate step in the present execution of the criminal design.†(Hatch
v. Superior Court (2000) 80 Cal.App.4th 170, 185, italics added.) That is correct. Moreover, we agree that merely participating
in Internet chats about oral sex, no matter how explicit, would not qualify as
an attempt to engage in oral
sex. Where we depart from defendant’s
analysis, however, is when he contends that his act of driving to the place
where he had arranged to meet Jazzzyjen would not qualify as an “immediate
step†toward present execution of his planned oral copulation of a 13-year-old
girl.
According to defendant,
the evidence suggests only that he drove to the shopping center to “contemplate[]
whether and where to engage in sexual activity . . . .†Not so.
The evidence clearly supports the conclusion that defendant had already
finished contemplating “whether†and had fixed on the “where.†He had decided to engage in sexual activity
with Jazzzyjen as soon as possible after his arrival at the shopping
center. According to his own description
of what he intended, the sexual activity would actually commence in his car and
continue at Jazzzyjen’s home, which he believed to be only a couple of blocks
away.
Moreover, the fact
defendant carried with him no “sexual materials†such as sex toys or lubricant
in no way undermines the inference he had already commenced his attempt to
commit the planned crime. Use of sexual
materials is not a required element of engaging in oral copulation. Thus, while a defendant’s possession of such
materials would certainly be indicative of a present intention to engage in
some sexual activity (see People v. Reed
(1996) 53 Cal.App.4th 389, 395 [defendant arrived at motel to have sex with
young girls he expected to find there, with sex toys and lubricating jelly in
his possession]), the lack of any does not imply the absence of such intention.
Finally, defendant
claims that even if his act of driving to the shopping center could be
construed as going beyond mere preparation, the question would remain:
“preparation for what?†He points out
that while there is certainly evidence he and Jazzzyjen had discussed engaging
in oral copulation during their chats, that was merely one of the many sexual
options covered, making it impossible to know just which one he had in mind when he arrived at the shopping
center. In defendant’s view, “[a]ny
inference that [he] took a direct step towards the commission of
speculation.†(Italics added.) We reject that view. Contrary to defendant’s implication, his
apparent intention to also perform other sexual acts with Jazzzyjen when he met
with her on August 30, 2007, is not inconsistent with the conclusion he
intended to engage in oral copulation.
There is no either/or to be decided here. Nor is there any requirement that the
prosecutor establish oral copulation was defendant’s number one priority of all
the sex acts he might have contemplated engaging in that day.
Defendant’s own words
made it clear that oral copulation featured prominently in the sexual activity
he intended to engage in when he drove to the shopping center to meet
Jazzzyjen, whom he believed was a 13-year-old girl. Consequently, no speculation was required to
deduce that intent, and the evidence was sufficient to establish his
culpability for the attempt.
Elements of a Violation of Section 288.4, Subdivision (b)
In count 3, defendant
was charged with attempt to violate former section 288.3, subdivision (b). Effective October of 2007, just shortly after
defendant committed the acts at issue in this case, the statute was renumbered
to section 288.4 without substantive change.
To avoid confusion, we will refer to the statute as it is currently
numbered: i.e., section 288.4.
Defendant contends the
instruction given to the jury in connection with this count did not accurately
reflect the elements of a violation of section 288.4, subdivision (b), and thus
that his conviction on the count must be reversed. We agree with the former contention, but not
the latter.
Section 288.4 provides
in pertinent part as follows: “(a)(1)
Every person who, motivated by an unnatural or abnormal sexual interest in
children, arranges a meeting with a minor or a person he or she believes to be
a minor for the purpose of exposing his or her genitals or pubic or rectal
area, having the child expose his or her genitals or pubic or rectal area, or
engaging in lewd or lascivious behavior, shall be punished by a fine not
exceeding five thousand dollars ($5,000), by imprisonment in a county jail not
exceeding one year, or by both the fine and imprisonment. [¶] . . . [¶]
(b)
Every person described in paragraph (1)
of subdivision (a) who goes to the arranged meeting place at or about the
arranged time, shall be punished by imprisonment in the state prison for
two, three, or four years.†(Italics
added.)
Thus, the main crime is
defined in subdivision (a) of the statute, and its elements are: 1) the defendant arranged a meeting with
minor or person believed to be a minor; 2) in doing so, the defendant was
motivated by unnatural or abnormal sexual interest in minors; and 3) the
purpose of the meeting was to engage in specified improper acts or lewd or lascivious
behavior. That crime is punishable by a
fine and by imprisonment of up to one year.
Subdivision (b) of the statute, which is what defendant was charged with
attempting to violate in count 3, adds an
element to the offense already described in subdivision (a). It states that when the person who commits a
violation of subdivision (a) also
goes to the arranged meeting place at roughly the appointed time, the
applicable punishment is increased.
Unfortunately, the
instruction given to the jury with respect to count 3 focused almost entirely
on defendant’s attempt to attend the
arranged meeting – the added element under subdivision (b) of the statute –
rather than on the main crime, which is arranging
the meeting with a minor for improper purposes. Specifically, the court informed the jury
that “[t]he defendant is charged in Count 3 with attempting to go to an
arranged meeting place to meet the person he believed to be a minor for the
purpose of engaging in lewd and lascivious behavior . . . . [¶] To prove the defendant guilty of this
crime, the People must prove that: [¶]
1. The defendant willfully went to an arranged meeting place to meet with a person
the defendant believed to be a minor; and [¶] 2. When
the defendant went to the meeting place, he did so with the specific intent
of engaging in lewd or lascivious behavior with a person he believed to be a
minor.†(Italics added.)
Thus, the instruction
given to the jury misstates the elements of the crime described in section
288.4 in two significant respects.
First, it does not require the jury to find defendant
ascertain defendant’s intent and motivation at
the time he arranged the meeting.
These
are elements of the crime set forth in subdivision (a) of the statute, and only
after the elements of that crime are established, could the jury also be asked
to find that defendant, a “person described in paragraph (1) of subdivision
(a)†went “to the arranged meeting place at or about the arranged timeâ€
(§ 288.4, subd. b), thus fulfilling all of the elements of the crime he
was charged with attempting in count 3.
Consequently, the instruction given to the jury on that count was error. (People
v. Mil (2012) 53 Cal.4th 400, 409 [court has a sua sponte obligation to
instruct on all the elements of a charged offense].)
But determining the
instruction was erroneous does not end our inquiry. As defendant acknowledges, such an error does
not require reversal of the conviction if we determine it was harmless beyond a
reasonable doubt. (People v. Mil, supra, 53 Cal.4th at p. 410.) That is the case here. First, defendant himself admitted it was he
who engaged in the sexually explicit Internet chats with Jazzzyjen, during
which their meeting was arranged.
Consequently, it is undisputed he arranged the meeting. And second, there is simply no evidence from
which the jury might have reasonably inferred that defendant arranged the
meeting with any intention other than to engage in lewd and lascivious acts
with Jazzzyjen. Stated plainly,
defendant talked of nothing else in
the chats with Jazzzyjen (whom it bears repeating was not actually a real
teenage girl, but a police detective engaged in a sting operation.) Perhaps if defendant had some real
relationship with an actual 13-year-old girl, and if their conversations had
ever included significant discussion about their shared interest in (for
example) hiking, shopping, board games or dining out – as alternatives to their
shared interest in engaging in sexual acts – defendant could persuasively argue
it was not absolutely clear what he had in mind when he arranged to meet with
that girl. But that is not the case
here. There can be no doubt defendant’s
intention was to engage in lewd and lascivious acts when he arranged to meet
with Jazzzyjen.
And finally, we reject
defendant’s contention that the error cannot be deemed harmless, merely because
he disputed the prosecutor’s
assertions that he had an abnormal sexual interest in minors and that he had
actually believed Jazzzyjen was 13
years old. The jury necessarily found
against him on both those points when it convicted him on count 1, which
charged him with attempted lewd and lascivious conduct on a minor under the age
of 14. Under these circumstances, there
can be no doubt that if this jury had been properly instructed on the elements
of a violation of section 288.4, subdivision (b), it would have nonetheless
convicted defendant on the charge of attempting to commit that offense. The error was harmless.
Whether Crime of Attempted Violation of Section 288.2, Subdivision (a),
is Overbroad
Next defendant asserts
his convictions on counts 4-6 must be reversed because the crime charged in
each of those counts, attempting to
distribute, send or exhibit “any harmful matter, as defined in Section 313, to
a minor with the intent of arousing, appealing to, or gratifying the lust or
passions or sexual desires of that person or of a minor, and with the intent or
for the purpose of seducing a minor,†(§ 288.2, subd. (a)) is overbroad in
violation of the First Amendment to the United States Constitution.
Defendant first
acknowledges that the crime defined by
section 288.2, subdivision (a), while content based, is narrowly tailored to
advance a compelling state interest, which is the protection of minors, because
it only punishes the actual distribution of harmful materials
(See People v. Hsu (2000) 82
Cal.App.4th 976, 983-984.) But, he
argues, to punish the mere attempt to violate that statute sweeps up those
offenders, like him, who actually distributed their questionable material
communications, based on their content, sweeps too broadly, and thus improperly
interferes with his constitutionally protected freedom of expression.
We disagree. People
v. Hsu, supra 82 Cal.App.4th 976, is factually on point. There too, the defendant was actually
convicted of an attempt to violate
section 288.2, subdivision (a), with the flaw in his seduction plan also being
the fact he was actually communicating with a police detective, rather than the
minor he supposed. The conviction was
upheld. In rejecting the defendant’s
claim the statute was overbroad, the Hsu
court focused on the fact that culpability under the statute turns on
defendant’s wrongful intent in distributing the materials to someone he
believed was a minor, and thus does not implicate the intended distribution of
such materials to other adults: “section
288.2, subdivision (b), . . . was tailored so that the offense was restricted
to the transmittal of the proscribed material with the double intent of
arousing the minor’s sexual desire and seducing the minor, thereby ensuring that adult-to-adult communication was undeterred.†(Id.
at p. 989, italics added.) The opinion
in Hsu does not reveal that the
appellant made the exact point defendant makes here – i.e., that criminalizing
a mere attempt to violate the statute can have the effect of punishing
communications between adults, but the point does not materially affect the
analysis. That the person defendant
adult changes nothing, because defendant’s conviction still rests on the fact
that what he was attempting to do was
distribute the material to a minor, with the intention of seducing
does not interfere with anyone’s ability to send whatever they like to someone
they reasonably believe to be an adult.
The $200 Fine
Defendant also
challenges the court’s imposition of a $200 fine against him. He claims the court imposed the fine pursuant
to section 288, which authorizes a fine of up to $10,000 “[u]pon the conviction
of any person for a violation of subdivision (a) or (b) [of the statute]â€
(§ 288, subd. (e)), and argues this was error because he was not convicted
of violating the statute. His was merely an attempt.
But, as the Attorney
General points out, the general attempt statute, section 664, provides that
when a defendant is convicted of attempting to commit a crime which is
punishable by fine, “the offender convicted of that attempt shall be punished
by a fine not exceeding one-half the largest fine which may be imposed upon a
conviction of the offense attempted.â€
(§ 664, subd. (c).) And
one-half of the largest fine authorized by section 288 is $5,000, which is well
above the $200 fine imposed here. The
court did not err.
Correction of the Minute Orders
Defendant’s final
contention is that two of the court’s minute orders are erroneous, one because
it does not accurately reflect the charges defendant was convicted of and the
other because it does not accurately reflect the court’s oral pronouncement of
judgment. The Attorney General agrees
the orders are both inaccurate and must be corrected. We consequently remand the case for the
limited purpose of directing the trial court to do so. Specifically, the court is directed to: (1) correct its minute order dated May 15,
2012, to reflect the jury found defendant guilty of only an
subdivision (b), as charged in count 3; and (2) correct its minute order dated
June 20, 2012, to reflect that on each of counts 4-6, defendant was sentenced
to the lower term, halved on account of his offenses being only attempts, and
that he was assessed a fine of only $200, rather than $300.
DISPOSITION
We remand the matter to
the trial court with directions to amend its minute orders dated May 15, 2012,
and June 20, 2012, as specified herein.
In all other respects, the judgment is affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.
