Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P04CRF238
CANTIL-SAKAUYE, J.
In 2004, defendant pled no contest to second degree burglary (Pen. Code, § 459) and was placed on probation for three years. Less than three years later, a petition for violation of probation was filed, alleging defendant had failed to obey all laws by annoying or molesting a child (Pen. Code, § 647.6, subd. (a)). After a jury convicted him of this misdemeanor, the court found a violation of probation. Defendant was sentenced to the midterm of two years on the burglary charge and a concurrent sentence on the misdemeanor child molestation.
Defendant’s appeal from the misdemeanor conviction in case No. P06CRM1091 was transferred to the appellate division of the El Dorado Superior Court on this court’s motion pursuant to People v. Nickerson (2005) 128 Cal.App.4th 33.
On appeal, defendant contends the trial court abused its discretion in finding a violation of probation because there was insufficient evidence to support the conviction for violating Penal Code section 647.6. He further contends it was error to impose a restitution fine under Penal Code section 1202.4 on the violation of probation as that fine had already been imposed when probation was granted. The Attorney General properly concedes the second point. We strike the restitution fine and otherwise affirm.
Pursuant to Miscellaneous Order No. 2010-002, we have considered whether defendant is entitled to additional presentence custody credits under recent amendments to Penal Code section 4019. Because defendant is required to register under Penal Code section 290 due to his conviction for violating Penal Code section 647.6, subdivision (b) (Pen. Code, § 290, subd. (c)), we conclude he is not entitled to additional credit. (Pen. Code, § 4019, subd. (b)(2).)
FACTS
In 2004, after being charged with first degree burglary, defendant entered a plea of no contest to second degree burglary. He was placed on probation for three years and ordered to pay various fines, including a $200 restitution fine under Penal Code section 1202.4. One of the conditions of probation was that defendant “Obey all laws.”
Over a year later, defendant’s sentence was modified to reduce his monthly payments for outstanding fines and fees to $15 per month.
On June 8, 2006, 15-year-old J.C. was working alone at Cuppa Joe’s coffee shop in Placerville. Defendant came into the shop and asked for the key to the bathroom. She gave him the key; he told her she looked pretty and left. He returned and questioned J.C. about her age, her school and whether she had a boyfriend. She told him she was 15, had a boyfriend, and went to Union Mine High School.
During the conversation, defendant told J.C. she was pretty several times. Defendant told J.C. he had an annoying girlfriend he wanted to get rid of because she nagged him. Defendant was playing with his cell phone. He accidentally took a picture and laughed. He then asked J.C. if he could take pictures of her to send to his girlfriend, so she would break up with him.
J.C. thought this request was “weird” and “creepy.” She laughed off the request, thinking defendant was kidding. Defendant leaned over the counter and told her he wanted to take pictures of her cleavage and butt. He was persistent. J.C. was nervous; she was all alone and could not defend herself. Her gut feeling was that she should not make defendant mad.
She “foolishly” allowed defendant to take several pictures. J.C. was wearing a sleeveless tank top and jeans. Defendant had her pose by pulling the top down and pushing her breasts together so her cleavage was visible. Defendant had her turn around and lean over so “her butt look[ed] better.” Defendant took several pictures showing only her breasts or her butt.
Defendant said they were good pictures. He put some money in the tip jar and told J.C. he would give her more later. He said he could not walk away from the counter because he was embarrassed. He pointed to his crotch, hinting he was aroused. J.C. did not respond and defendant left.
J.C. then locked the door and hid in the back. She heard him come back and pull on the door. Finally, defendant walked away. The phone rang and J.C. answered it. It was defendant; he asked why the door was locked and if she had told anyone what happened. When J.C. said no, defendant said good because he did not think it was legal. He said he would come by the next day with the rest of the money.
J.C. was too embarrassed to call the police or tell her parents about what happened. That night she could not sleep; she was worried about defendant coming back. The next day at work she called her mother and told her about the incident. Her mother called J.C.’s grandmother who came to the coffee shop.
J.C. saw defendant drive by, stop and go into the bank. She went next door to a bail bond agency and told Buck Lewis about the incident the day before. Lewis approached defendant and asked why he was taking pictures of a girl. Defendant said he did not have the pictures; they were on a cell phone. Lewis told him the police would be involved and he might as well give up the pictures. Defendant was shaken up by the mention of police. Lewis asked for his phone and defendant turned it over. Lewis found the pictures, but defendant claimed they were of his niece. Lewis demanded defendant’s identification. Defendant gave it to Lewis and left quickly.
DISCUSSION
I.
There is Substantial Evidence of Annoying or Molesting a Child
Defendant contends the trial court abused its discretion in finding he willfully violated probation by failing to obey all laws. Defendant contends there is insufficient evidence that he violated Penal Code section 647.6, subdivision (a) because an ordinary person would not be irritated or disturbed by his actions and his actions were not motivated by an abnormal or unusual sexual interest in J.C.
Penal Code section 1203.2, subdivision (a) provides a court may revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation....” Trial courts are granted great discretion In revoking probation and we will not interfere with the trial court’s decision to revoke probation absent an abuse of discretion. (People v. Kelly (2007) 154 Cal.App.4th 961, 965.)
The trial court revoked defendant’s probation based on his violation of Penal Code section 647.6, subdivision (a). That subdivision states a misdemeanor offense for every person who “annoys or molests any child under the age of 18.” Defendant’s conduct must be such that a normal person would unhesitatingly be irritated by it and it must be motivated by an unnatural or abnormal sexual interest in the victim. (People v. Lopez (1998) 19 Cal.4th 282, 289.)
The words “annoy” and “molest” in section 647.6, subdivision (a) are synonymous; they generally “refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person. [Citations.]” (People v. Lopez, supra, 19 Cal.4th at p. 289.) While Penal Code section 647.6 is often applied to incidents of explicit sexual conduct, it may also apply to conduct that is more ambiguous. (People v. Kongs (1994) 30 Cal.App.4th 1741, 1749-1750.) “The deciding factor for purposes of a Penal Code [section] 647.6 charge is that the defendant has engaged in offensive or annoying sexually motivated conduct which invades a child’s privacy and security, conduct which the government has a substantial interest in preventing....” (Id. at p. 1752.)
Defendant contends his conduct was simply taking pictures of a girl in a public place. He argues that since J.C. admitted she wore the same clothes to school and students often took pictures of each other at school with their cell phones, no ordinary girl would be unhesitatingly irritated or disturbed by his conduct. He asserts his conduct is distinguishable from cases that found sufficient evidence of a violation of Penal Code section 647.6. He did not pose as a legitimate photographer while clandestinely taking “crotch shots” of young girls (People v. Kongs, supra, 30 Cal.App.4th 1741); he did not stalk a 12-year-old girl on a bicycle (People v. Thompson (1988) 206 Cal.App.3d 459); he did not pick up girls and refuse to let them out of his car (In re Sheridan (1964) 230 Cal.App.2d 365); he did not ask a teenager if she had ever had certain unnatural acts performed upon her (People v. Carskaddon (1959) 170 Cal.App.2d 45).
Defendant makes this argument only by minimizing his conduct. He did more than simply take pictures of J.C. (See People v. Lopez, supra, 19 Cal.4th 282, 296 (conc. opn. of Baxter, J.) [in deciding whether conduct was objectively irritating or annoying, fact finder should consider factual context].) Defendant engaged her in a scheme to anger his girlfriend, injecting her in the middle of an adult relationship. He took advantage of her youth and lack of sophistication, and that she was alone, to pose her provocatively and take pictures of only specific areas of her anatomy. He then called attention to his sexual arousal, gave her money and promised to return with more. He called after returning to a locked door and drove by the next day. J.C. felt the incident was “creepy” and “weird” and she feared making the persistent defendant mad. Defendant recognized the inappropriateness of his conduct when he told J.C. it might be illegal and when he became skittish once Lewis mentioned the police. This was “offensive or annoying sexually motivated conduct” that invaded J.C.’s privacy and security. (People v. Kongs, supra, 30 Cal.App.4th at p. 1752.)
Defendant next contends his conduct was not motivated by an abnormal or unnatural sexual interest in J.C. He contends that since she was not prepubescent, but an attractive and developed teenager, his sexual interest in her was normal.
Defendant ignores that he knew J.C. was only 15 years old. She told him her age and that she was in high school at the beginning of their encounter. In People v. Shaw (2009) 177 Cal.App.4th 92, defendant claimed instructional error; he contended his Penal Code section 647.6 offense had to be motivated by an unnatural and abnormal sexual interest in children in general, rather than a sexual interest in his 16-year-old victim. The court disagreed. “[T]here can be no normal sexual interest in any child and it is the sexual interest in the child that is the focus of the statute’s intent.” (People v. Shaw, supra, at p. 103, original italics.) The court noted defendant knew his victim was a minor and his conversations with her acknowledged her youth and innocence. (Id. at p. 104.) The same is true here.
Since there was sufficient evidence that defendant violated Penal Code section 647.6, subdivision (a) and thus failed to obey all laws, the trial court did not abuse its discretion in revoking his probation. (People v. Robinson (1954) 43 Cal.2d 143, 146 [subsequent conviction sufficient to justify revocation of probation].)
II.
The Penal Code Section 1202.4 Restitution Fine Must be Stricken
Defendant contends the trial court erred in imposing a restitution fine under Penal Code section 1202.4 upon revocation of probation because the court had already imposed such a fine when probation was granted. The Attorney General properly concedes this issue.
The same situation occurred in People v. Chambers (1998) 65 Cal.App.4th 819. The trial court imposed a $200 restitution fine when it granted defendant probation; when his probation was revoked, the court imposed a $500 restitution fine. This court held, “a restitution fine imposed at the time probation is granted survives the revocation of probation.” (Id. at p. 820.) Since the first restitution fine survived, the second fine was unauthorized and must be stricken. (Ibid.)
DISPOSITION
The judgment is modified by striking the $200 restitution fine. The original $200 restitution fine imposed in 2004 remains in force. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and forward it to the Department of Corrections and Rehabilitation.
We concur: SIMS, Acting P. J. BUTZ, J.