(Solano County Super. Ct. No. FCR222246) Trial Judge: Honorable Mike Nail.
The opinion of the court was delivered by: Rivera, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant David Lawrence Dyke appeals a judgment entered upon a jury verdict finding him guilty of sending or exhibiting harmful matter to a minor (Pen. Code,*fn2 § 288.2, subd. (a); count I) and misdemeanor sexual battery (§ 243.4, subd. (e)(1); count II). The court sentenced defendant to the two-year midterm on count I and stayed sentence on count II. We conclude the record does not contain sufficient evidence to support a factual finding that the television scenes that were shown to the minor constituted ―harmful matter‖ within the current meaning of section 288.2, subdivision (a). Accordingly, we shall reverse the conviction as to count I and remand for resentencing.
A.S., a 16-year-old high school sophomore, was on her school's wrestling team. She became close friends with her teammate D.D., defendant's daughter. Defendant helped out with the wrestling team. He started coaching A.S. and taking her to tournaments.
On January 28, 2005, defendant and A.S. drove to defendant's home after a wrestling tournament. A.S. was to sleep at defendant's home because he was going to take her to the second day of the tournament the next day. When they arrived, D.D. was the only other person at home.
A.S. testified that defendant, D.D., and A.S. watched television in the living room. At some point, defendant sent D.D. to her room and stayed alone with A.S. He started flipping through the television channels, some of which showed pornographic material. Of the scenes A.S. saw, she specifically remembered two. One program showed a naked woman dancing. At that point, defendant said, ― ‗I shouldn't have this on because then you will have funny dreams and feel funny.' ‖ Although A.S. initially testified that they watched this scene for about eight minutes, she later said it might have been for about a minute. The second program showed a naked woman and a naked man ―having sex.‖ The television showed only their upper bodies, from a side angle, and the woman was on top. The scene was on for about 45 seconds. The scenes made A.S. feel uncomfortable. She stayed for a little while, and then told defendant she wanted to go to sleep.
Defendant took A.S. to the room where she was to sleep and left, but later returned. A.S. was lying in bed and he kneeled at the bedside, with his elbows on the bed. He started to speak to her and then there was a long and awkward silence that lasted about 25 seconds. Defendant placed his hand on A.S.'s breast, stroking and rubbing it. She felt very uncomfortable and pushed his hand away. Defendant then leaned over and kissed her mouth. A.S. turned away and he put his mouth on her ear. He then asked her if she was horny. A.S. said no, and he asked her if she wanted to be horny. A.S. again said no. Defendant asked her what she wanted to do, and A.S. responded that she wanted to go to sleep. He then said ― ‗I'm an adult. I shouldn't be doing this. I apologize,' ‖ and left the room.
Defendant testified that on January 28, 2005, he drove A.S. back to his home after the wrestling tournament. After defendant, D.D., and A.S. had dinner, he joined the girls in the living room, where they were watching television, and started flipping through the television channels. Defendant denied that any pornographic shows came up while he was flipping through the channels. Defendant told A.S. and D.D. to go to bed, and the girls left together. Defendant then went to A.S.'s room, where he stood about two or three feet from the door. He gave her words of encouragement because she was depressed about having lost one of her matches that day. Defendant reached over, patted her on the shoulder, and told her not to worry. He walked out of the room, closed the door, and went to bed.
A. Evidence of Showing Harmful Material to a Minor
Defendant contends the evidence is insufficient to support a conclusion that the television scenes he showed A.S. constituted harmful matter for purposes of section 288.2.
We review the conviction for substantial evidence. (People v. Huggins (1997) 51 Cal.App.4th 1654, 1656.) Under this standard, we review the whole record ―in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‖ (People v. Johnson (1980) 26 Cal.3d 557, 578.) If the circumstances reasonably justify the finding, we cannot reverse merely because a contrary finding might also be reasonably deduced from the circumstances. (People v. Redmond (1969) 71 Cal.2d 745, ...