P. v. Tremblay

Filed 12/26/08 P. v. Tremblay CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury found defendant Paul Leo Tremblay guilty of 18 counts of committing lewd and lascivious acts with a minor under age 14 (counts one through thirteen and counts sixteen through twenty) and two counts of exhibiting harmful matter to a minor (counts fourteen and fifteen). Sentenced to 41 years 4 months in prison, defendant appeals and contends: (1) the People presented insufficient evidence to support his convictions for exhibiting harmful matter to a minor; and (2) the trial courts imposition of consecutive sentences violated Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. Disagreeing with these contentions, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim was born in 1991. The charges against defendant covered the period between December 17, 1996 (count one) or December 17, 1998 (counts two through twenty) and December 31, 2004. The victim, age 16 at the time of trial, was the chief prosecution witness.

The victim testified that defendant began to molest her when she was five and continued (at first once every week or two, later about once a month) until she was in eighth grade, when she finally told her mother. Except for one attempted anal penetration which defendant stopped when the victim said it hurt, the acts consisted mostly of oral sex or digital fondling of her vagina.

When the victim was in the fifth or sixth grade, defendant at least twice showed her porn on cable TV -- a show called Real Sex. The program consisted of half-hour or hour episodes with story lines, including one with a circus theme. Sooner or later, however, there would always be naked adults having sex.^[1]

As the victim and defendant watched, he would tell me, like, how I should do what they were doing and, like, he would, like, show me, like, tips, or he would tell me, like, what they were doing and tell me that I should do it. [] And, like, he would just, like, use the porn to, like, teach me stuff. And he would, like -- he would be, like, the girl has to be above the guy because you have to -- he would just, like, tell me all this stuff about how, like, the right way to do stuff and, like, like what they were doing in the show, like thats what I should be doing and stuff. He also told her: [W]hen you get older, Im going to stick a rubber on, and then youll be old enough to have sex and stuff. By older, he meant 13 or 14.

The victim did not pay[] attention very closely to these programs because it made me feel really weird . . . . I just didnt like it. However, she recalled seeing oral sex and sexual intercourse on the programs.

At least once, defendant and the victim engaged in oral sex after watching the show.

DISCUSSION

I

The People Presented Sufficient Evidence To

Support Defendants Convictions For

Exhibiting Harmful Matter To A Minor

Defendant contends his convictions for exhibiting harmful matter to a minor must be reversed because the People failed to present sufficient evidence the material qualified as harmful matter, he acted with the intent to sexually arouse himself or the victim, and he acted with the intent to seduce her. Defendant is wrong.

Penal Code^[2]section 288.2, subdivision (a) provides

in part: Every person who, with knowledge that a person is a minor, . . . knowingly . . . exhibits . . . 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, is guilty of a public offense and shall be punished by imprisonment in the state prison or a county jail.

Section 313 provides that: (a) Harmful matter means 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.

Courts have held that matter may be harmful to minors even if it does not wholly lack serious literary, artistic, political or scientific value for adults, provided that the matter is exhibited to the minors for purposes proscribed by the statutes. (See, e.g., Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075, 1081-1082, fns. 1 & 3 [a trier of fact could find advertisements depicting two extremely buxom women . . . essentially naked from the waist up and posing suggestively, but not performing any sexual act, harmful to minors]; People v. Hale (2005) 133 Cal.App.4th 942, 945-946 [the court found probable cause for a search warrant under 313.1 where the suspect was alleged to have shown pornographic movies to minors]; People v. Hsu (2000) 82 Cal.App.4th 976, 992-993 [harmful matter must be understood in a common sense fashion].)

As we will explain, in light of this case law and the evidence presented by the People, a jury reasonably could have found that as used by defendant in this case, Real Sex constituted harmful matter within the meaning of sections 288.2, subdivision (a) and 313, subdivision (a), that defendant acted with the intent to sexually arouse himself or the victim, and that he acted with the intent to seduce her.

First, applying contemporary statewide standards, the jury could reasonably have concluded that Real Sex, taken as a whole, . . . appeal[ed] to the prurient interest, depict[ed] or describ[ed] . . . sexual conduct in a manner patently offensive when shown to minors, and taken as a whole, lack[ed] serious literary, artistic, political or scientific value for minors. ( 313, subd. (a), italics added.) Real Sex depicted porn (as described by the victim) and included oral sex and intercourse. Thus, it went beyond the materials which the court in Berry, described as harmful to minors under section 313, subdivision (a), and resembled those which the court in Hale found sufficient, when shown to minors, to justify a search warrant under section 288.2, subdivision (a).

Defendant argues that victims description of the material as porn was insufficient to support the convictions because she was at the time of trial a 16-year-old who presumably was in no position to offer an opinion on statewide standards of acceptance in the community. But she did not just call Real Sex porn -- she described its contents. And it was not her job to define statewide standards of acceptance in the community; it was the jurors job, applying their collective good sense and experience, to decide what those standards were and whether Real Sex, as used by defendant, met them. They did so, based on sufficient evidence, and we are in no position to second-guess their determination.

Second, a jury reasonably could conclude that defendant showed Real Sex to victim with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [himself] or of a minor. ( 288.2, subd. (a).) On at least one occasion, they engaged in oral sex after watching the program.

And third, a jury reasonably could conclude that defendant showed Real Sex to the victim with the intent or for the purpose of seducing a minor. ( 288.2, subd. (a).) As she explained, while the two were watching the show, defendant would tell her she should do what they were doing and instruct her on the right way to do stuff.^[3] (See People v. Jensen (2003) 114 Cal.App.4th 224, 239-240 [seducing element under 288.2, subd. (b), entails the intent to entice the minor to engage in a sexual act involving physical [i.e., genital] contact between the perpetrator and a minor]; People v. Hsu, supra, 82 Cal.App.4th at p. 992.)

Defendants contrary arguments consistently miss the point that matter which is not obscene or utterly without redeeming social value for adults may nevertheless be harmful to minors under sections 288.2, subdivision (a) and 313, subdivision (a). For example, defendant asserts that the People failed to prove the absence of literary value in Real Sex and because the shows were dramas with themes, it strongly suggest[s] that [they] did have literary value for minors. But the statutes do not require proof of the entire absence of literary value. And if any material that could be described as a drama with themes -- no matter what else it contained or why an adult showed it to a minor -- were beyond the statutes reach, they would be rendered a nullity. Defendant also makes much of the

fact that the actors were not minors and the show was aired on cable television and was thus presumably subject to regulation. Even if the makers of Real Sex did not violate the law by using minors to film the program, it does not follow that defendant did not violate the law by showing Real Sex to a minor. And that the contents of the show might be subject to federal regulation as defendant asserts does not prevent anyone from taking material intended for adult viewing and illegally showing it to a minor.

For all these reasons, there was sufficient evidence to support defendants convictions for exhibiting harmful matter to a minor.

II

The Court Did Not Err In Imposing Consecutive Sentences

After imposing the middle term on count one, the principal term, the trial court sentenced defendant consecutively on counts two through twenty, finding that the offenses were committed at separate times and places and that the counts charged represented only a small percentage of defendants actual crimes against the victim. Defendant contends that this consecutive sentencing was based on facts not found true by the jury or admitted by defendant and violated Cunningham v. California, supra, 549 U.S. 270 [166 L.Ed.2d 856]. As he acknowledges, however, the California Supreme Court has rejected this claim. (People v. Black (2007) 41 Cal.4th 799, 822.) We therefore cannot consider it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND , P. J.

RAYE , J.

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^[1] In the victims words: They were, like, just, like, in their 30s or 20s. []  They were old.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.

^[3] As defendant observes: [The victim] indicated the shows might have been intended to have a teaching purpose. More precisely, she indicated that defendant intended to use the show for a teaching purpose: to teach her how to have adult sex with him when she got old enough. That is exactly the sort of teaching purpose the law forbids.