Opinion
A155688
07-13-2020
The PEOPLE, Plaintiff and Respondent, v. David P. COLLOM, Defendant and Appellant.
Cynthia Diane Jones, First District Appellate Court under appointment of the Court of Appeal for Appellant. Xavier Becerra, Attorney General, Lance A. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce Ortega, Deputy Attorney General, Julia Y. Je, Deputy Attorney General for Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the portions beginning with "On October 13, 2017, after Collom passed along" on page 3 through "Yeah you're only 14 but you're hot baby[.]" on page 6; beginning with the heading "Defense Case" on page 8 through "There was also a google search for ‘16 year old girls that live in Stockton want to have sex.’ " on page 10; and Section B. with the heading "Instructional Error" and Section C. with the heading "Minute Order and Abstract of Judgment" in the Discussion portion of the opinion.
Cynthia Diane Jones, First District Appellate Court under appointment of the Court of Appeal for Appellant.
Xavier Becerra, Attorney General, Lance A. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce Ortega, Deputy Attorney General, Julia Y. Je, Deputy Attorney General for Respondent.
Siggins, P.J. A jury convicted David Collom of multiple counts for meeting a minor for lewd purposes ( Pen. Code, § 288.4, subd. (b) ), sending harmful matter to a minor (§ 313.1, subdivision (a)), and arranging a meeting with a minor for lewd purposes ( § 288.4, subd. (a)(1) ).
All statutory references are to the Penal Code.
On appeal, Collom contends there was no substantial evidence for his convictions under section 313.1, subdivision (a) (section 313.1(a)) which he says can be violated only when harmful matter is transmitted to a minor, and not when, as here, it is transmitted to an adult posing as a minor. He argues the trial court prejudicially erred in failing to instruct the jury sua sponte that his mistaken belief as to the purported minor's age, even if unreasonable, was a complete defense. He also says the clerk's minute order and abstract of judgment must be amended to properly reflect his sentence. In the published portion of this opinion, we reverse the misdemeanor convictions under section 313.1(a). In the unpublished portion, we correct the trial court's sentencing minute order and abstract of judgment to properly reflect the imposed sentence. Otherwise, we affirm.
BACKGROUND
An amended information charged Collom with one count of meeting a minor for lewd purposes ( § 288.4, subd. (b), count 1), four counts of sending harmful matter to a minor (§ 288.2, subd. (a)(2), counts 2, 3, 4, and 5), and three counts of arranging a meeting with a minor for lewd purposes ( § 288.4, subd. (a)(1), counts 6, 7, and 8). The jury trial revealed the following.
Prosecution Case
The social network Skout.com (Skout) provides users a platform where they can register, create profiles, and meet other users nearby with whom they can chat or post online messages. Users who are 13 to 17 years old are placed in Skout's teenage community, while those 18 and older are placed in the adult community.
In July 2017, San Francisco Police Department Sergeant Christopher Servat, a Special Victims Unit officer assigned to the Internet Crimes Against Children subunit, was working an undercover operation to investigate individuals exploiting children online. He created a fictitious profile on Skout for "Briana." Servat gave Briana a birthday that stated she was 18 years old and put her in Skout's adult community. He included this greeting: "Hey, looking for cool, chill people ... I am not 18. I am in high school." For Briana's profile pictures, Servat used two photographs given to him by Sergeant Kathryn Bartel taken when she was 12 and 14 years old.
In October 2017, Collom contacted Briana with the message "Hello, gorgeous." Collom's profile indicated he was 57 years old and from Stockton. Days later, Servat, posing as Briana, responded and the two began communicating. Collom messaged, "I find you very attractive and very beautiful and gorgeous. Oh, and sexy. I would love to get to know you more, if you don't mind." He gave Briana his cell phone number with the comment, "Give me a call so we can have ... a little bit of conversations in a private matter—or a private conversation. This site is too wild."
A few days later, Servat, continuing to pose as Briana, sent Collom a message on Skout and asked his age. He responded, "Does age really matter to you?" Servat answered, "No. I like older guys. I'm 14." Collom replied, "Oh, that's wonderful, sweetheart. I hope your parents do not know what you are doing because you are not even supposed to be on this dating site, but you are a grown woman to me any way. [¶] Is there any chance we can get away, and a have fun in Frisco because I really want to know you even better. Like I said, you are gorgeous. [¶] Get back to me soon, sweety."
Soon they began communicating outside of Skout. Servat used a phone designated for the undercover operation and estimated the two exchanged "probably thousands" of texts between October 2017 and November 2017. He described the "entirety of the conversation [as] very sexual." The following are excerpts from some of their exchanges which were the bases for the criminal charges against Collom and which bear on issues in this appeal.
See footnote *, ante .
Over the next several days, the two exchanged messages in anticipation of Collom's visit. Servat told Collom that Briana lived in San Francisco. On November 1, 2017, Collom wrote, "Yes baby I know you truly want to meet me and fuck me and make love to me .... I will do my damndest to try to show up there Monday after work but it's going to be late when I get there ...." He said he would leave Stockton after work at 4:30 p.m. and would then drive the two hours to San Francisco. Collom sent the photo of an erect penis he previously sent and added, "I truly believe my baby girl really wants to feel this inside her and I will one love to give it to her and show her how much she means to me I love you baby ...." Servat texted Collom a San Francisco street address. After discussing what they planned to do when they met, Servat asked, "How long can u stay on Monday[?]" Collom queried, "When is your mom coming home [¶] Stay as long as I can before your mom comes home[.]" Servat texted, "Love you." When Collom received it later, he responded, "Well I just got your message sweetheart and I must say you are the best and I know you love me and I know you want everything I said I just wish it to hear from your own words I have to tell you you're very mature for your age you would say your 14 but you act like you're 18 but I'm cool with that .... yeah you are my girlfriend and my daughter oh my god I've died and went to heaven[.]" Collom sent two photos of couples having sex.
On November 4, 2017, Collom texted, "Well hello sexy no I love you and I'm in love with you Briana and I hope you real and I hope your true I always wanted a relationship like this ...."
On November 5, 2017, the day before Collom's planned visit, they exchanged dozens more texts. Servat wrote, "I can't [wait] for you to hold me tomorrow [¶] and to kiss you...." He added a photo of a 15-year-old Bartel in pigtails. Later, Collom asked Briana to call. Servat responded, "I can call u tomorrow during school if that's ok [¶] ... [¶] I can either duck out of class and call u or call u at my lunch[.]" At some point, Servat texted, "I want to be your girl forever[.]" Collom replied, "And you will baby and hopefully when you get older you can come to live with me[.]" Servat responded, "I would love that [¶] But not for four years ... [.]" Collom asked, "Why 4 years baby you can leave home at 17 or 16 you're old enough legally ... [¶] ... [I]f you're 16 or 17 [ ] the law is really not going to force you go back home or anything like that [¶] Yeah but when you're at your age now and younger yeah they have a say so but still a lot of people run away from home and never go back...." When they resumed texting that day, Collom inquired, "May I ask what grade you are in and when is your birthday month day and year." Servat answered, "Ok love [¶] I'm in 9th grade[.]" Collom replied, "Oh your freshman [¶] I love ... your first year in high school that's the hardest[.]" Servat added, "Bday is June 10th 2003."
At 2:32 a.m. on November 6, 2017, their planned meeting day, Collom sent Briana the same erect penis photo he sent previously. Around 11:00 a.m., they talked on the phone. A female officer posed as Briana and confirmed Collom's visit. They arranged to meet. Around 4:30 p.m., Servat texted, "On your way love?" Collom responded that he was already in San Francisco. Servat drove out to the address he gave to Collom. A while later, Collom texted Briana that he was around the block from her house. Servat saw Collom in his parked car nearby. Collom was arrested and taken into custody. Officers searched Collom's car and seized a phone and a condom on the passenger seat. Servat confirmed the phone was Collom's. The seized phone contained the number of Servat's undercover phone with the label "Briana 14," and recent text messages on it matched those Servat had sent to Collom.
See footnote *, ante .
The jury returned a mix of verdicts. Collom was found guilty on count 1 of meeting a minor for lewd purposes in violation of section 288.4 subd. (b), on counts 2 and 3 for sending harmful matter to a minor in violation of section 288.2, subdivision (a)(2), and on count 6 for arranging a meeting with a minor for lewd purposes in violation of section 288.4, subdivision (a)(1). On counts 4 and 5, the jury rejected the greater charge of sending to a minor matter depicting minors engaged in sexual conduct under section 288.2, subdivision (a)(2), but found him guilty of section 313.1(a), a misdemeanor, as a lesser included offense. Collom was found not guilty of count 7 (arranging a meeting with a minor for lewd purposes) and count 8 (attempting to arrange such a meeting). Collom appeals.
DISCUSSION
A. Sufficiency of the Evidence (Counts 4 and 5)
Collom argues the evidence was insufficient to support his misdemeanor convictions under section 313.1(a) as a matter of law.
When sufficiency of the evidence is challenged, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Johnson (1980) 26 Cal.3d 557, 562, 162 Cal.Rptr. 431, 606 P.2d 738.) If there is substantial evidence to support the verdict, "we must accord due deference to the trier of fact." ( People v. Jones (1990) 51 Cal.3d 294, 314, 270 Cal.Rptr. 611, 792 P.2d 643.) As such, we will not "reweigh any of the evidence" and we will "draw all reasonable inferences, and resolve all conflicts, in favor of the judgment." ( People v. Poe (1999) 74 Cal.App.4th 826, 830, 88 Cal.Rptr.2d 437.)
Section 313.1(a) states: "Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly sells, rents, distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter to the minor shall be punished ...." (§ 313.1, subd. (a).)
Collom contends section 313.1 can only apply to conduct involving an actual minor, and because his convictions were premised upon his communication with an adult police officer posing as a minor, he could not have violated section 313.1(a). The People counter that section 313.1(a) "does not require that the intended recipient of the harmful matter be an actual minor as long as a defendant knows or believes that the other person was a minor." The parties have cited no case, nor have we found any, that directly addresses whether section 313.1(a) is violated when the recipient of the harmful matter is not a minor.
Thus, Collom raises an issue of statutory interpretation. "Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs." ( Day v. City of Fontana (2001) 25 Cal.4th 268, 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196.)
The elements of a section 313.1(a) misdemeanor are "(1) distribution ‘by any means,’ (2) of ‘any harmful matter,’ (3) to a minor and (4) with knowledge that the person is a minor or with a lack of reasonable care in ascertaining the minor's true age." ( People v. Jensen (2003) 114 Cal.App.4th 224, 244, 7 Cal.Rptr.3d 609 ( Jensen ), italics added.) Under its plain meaning, the statute is violated only where harmful matter has been distributed to a minor, not an adult posing as one. It is undisputed that Servat, an adult police officer, posed as 14-year-old Briana. Thus, Collom's offensive texts and pictures were never sent to a minor and his misdemeanor convictions under section 313.1(a) cannot stand.
Many sex offenses can be committed when defendants "believe" their target victims are minors. For example, section 288.2, subdivision (a) states, "Every person who knows, should have known, or believes that another person is a minor , and who knowingly distributes ... any harmful matter ... is guilty of a misdemeanor...." (§ 288.2, subd. (a), italics added.) Section 288.4 also contains similar qualifying language: "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 ...." ( § 288.4, subd. (a)(1), italics added.) These statutes clearly provide culpability for defendants who believe they are interacting with minor victims. Section 313.1(a) contains no similar language that would allow Collom to be found guilty if he believed Briana was a minor, and instead she turned out to be fictitious or an adult posing as a minor.
We are not persuaded by the People's argument that no actual minor is necessary for a conviction under section 313.1(a). Relying on Jensen , supra , 114 Cal.App.4th 224, 7 Cal.Rptr.3d 609, the People state, "Case law establishes that section 313.1 is a lesser included offense of section 288.2, in that it criminalizes exhibiting harmful matter to a minor, but does not require the prosecution to establish the defendant's specific lewd intent as required for a conviction under section 288.2." Based on this syllogism, the People contend that because section 288.2 allows a conviction based on "a reasonable belief" the victim was a minor, so must section 313.1(a), its purported lesser included offense. (See Jensen , supra , 114 Cal.App.4th at p. 243, 7 Cal.Rptr.3d 609 ["A lesser offense is necessarily included in a greater offense if ... the statutory elements of the greater offense ... include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.’ "].)
The People also rely on People v. Nakai (2010) 183 Cal.App.4th 499, 107 Cal.Rptr.3d 402 (Nakai ), to support this position. But Nakai reached no such conclusion. (Id. at p. 507, 107 Cal.Rptr.3d 402 ["For purposes of this opinion, we will assume without deciding that section 313.1, subdivision (a) constitutes a necessarily included offense of section 288.2, subdivision (a)."].)
But when it identified section 313(a) as a lesser included offense of section 288.2, Jensen was comparing section 313.1(a) to an earlier version of section 288.2, subdivision (b) which had similar language. That earlier version stated: "Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet ... or a commercial online service, 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 ...." (Former § 288.2, subd. (b) [effective through Sept. 11, 2011].) Jensen did not determine, and is not authority for the proposition, that section 313.1(a) is a lesser included offense of section 288.2, subdivision (a) , as currently drafted. Collom was charged and tried under the current version of section 288.2, subdivision (a), as amended in 2014 to criminalize behavior by a defendant "who believes that another person was a minor ." (Stats.2013, c. 777 (S.B.145), § 2.) There was no similar amendment enacted for section 313.1(a), and under the statutory elements test it is no longer a lesser included offense of section 288.2, subdivision (a).
Section 313.1(a) is also materially different from other sex offenses which expressly include "attempt" within the statutory definition of the crime. For instance, section 288.3, subdivision (a) provides, "Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor , who knows or reasonably should know that the person is a minor, with intent to commit [a specified] offense ... involving the minor shall be punished ...." (§ 288.3, subd. (a), italics added.) Such "attempt" language makes plain that the lack of an actual minor is not a defense to an attempt to commit a sex offense against a minor. ( People v. Korwin (2019) 36 Cal.App.5th 682, 689, 248 Cal.Rptr.3d 763.)
In addition, Collom was not charged with attempting to violate section 313.1(a), or section 288.2, subdivision (a), the original charge brought against him. The fact that Collom's intended victim was a fictitious person or a police officer posing as a minor does not mean he was innocent of a crime. Rather, had attempt been charged and the jury so instructed, Collom could have been found guilty of attempts to violate section 313.1(a). Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 94 Cal.Rptr.2d 453 is instructive. There, the court rejected the defendant's argument that a necessary element of the charges under section 288.2, subdivision (a) was proof that the victims were minors. ( Id. at p. 185, 94 Cal.Rptr.2d 453.) Because the crime was charged as an attempt, "[th]e fact the prosecution cannot show that Hatch's intended victims were in fact under 14 years of age [was] irrelevant to his culpability for attempting the charged crimes." ( Ibid. ) Thus, although Hatch's intended victims were not in fact under the threshold age and not even real people, he could still be guilty of attempting to violate 288.2 subdivision (a). Collom was not charged with attempts. He was charged with violating section 288.2, subdivision (a) and convicted of violating the purportedly lesser included offense of section 313.1(a). But section 313.1(a) is no longer a lesser included offense of section 288.2, subdivision (a), and the absence of a minor victim means Collom did not violate it.
Hatch was prosecuted under the earlier version of section 288.2, subdivision (a).
Had the Legislature intended to punish defendants who attempt to distribute harmful matter to minors or individuals they believe to be minors , it could clearly so state in section 313.1(a) like it has in sections 288.2 and 288.3. The prerogative rests with the Legislature to define crimes, and "[i]t is up to the Legislature to implement any change that may be desirable." ( People v. Nguyen (2000) 24 Cal.4th 756, 763-764, 102 Cal.Rptr.2d 548, 14 P.3d 221.)
Finally, in some circumstances, appellate courts can reduce convictions for a crime to a lesser included offense, such as attempt, when the evidence has not proven the completed crime. (See § 1181, subd. (6).) We will not do so here. The People make no argument that section 1181 will authorize this result, and as explained, section 313.1(a) is not a lesser included offense of section 288.2. For this court to convict Collom of attempts to violate section 313.1(a) would be too attenuated in the circumstances in the absence of a charge or instruction. (See People v. Bailey (2012) 54 Cal.4th 740, 753, 143 Cal.Rptr.3d 647, 279 P.3d 1120 [law of attempt is complex and intricate, not subject to generalization]; People v. Strunk (1995) 31 Cal.App.4th 265, 271, 36 Cal.Rptr.2d 868 [trial court must instruct on lesser included offenses and attempts when warranted by the evidence].)
See footnote *, ante .
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DISPOSITION
We reverse the misdemeanor convictions under section 313(a) (counts 4 and 5). In addition, the trial court is ordered to correct the October 19, 2018 sentencing minute order and the abstract of judgment to indicate Collom's sentence on count 3 is stayed and his sentence on count 6 is six months. In all other respects, the judgment is affirmed.
The trial court shall prepare a corrected and amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
WE CONCUR:
Petrou, J.
Jackson, J.