IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
April 9, 2009; as modified May 7, 2009
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAVID LAWRENCE DYKE, DEFENDANT AND APPELLANT.
(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, 755.) We will reverse only if it ―clearly appear[s] that upon no hypothesis whatever is there sufficient substantial evidence to support [the judgment].‖ (Ibid.)
1. Statutory Background
Section 288.2, subdivision (a) provides in material 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 in a county jail. [¶] A person convicted of a second and any subsequent conviction for a violation of this section is guilty of a felony.‖ (Italics added.)
Defendant contends the evidence was insufficient to sustain the jury's verdict that the material exhibited to the minor was ―harmful matter‖ within the meaning of section 313, subdivision (a). Section 313, subdivision (a) defines ―harmful matter‖ as follows: ― ‗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.‖
The Legislature adopted the current definition of ―harmful matter‖ in 1988. (Stats. 1988, ch. 1392, § 5, p. 4710.) Prior to 1988, ―harmful matter‖ had been defined as follows: ―[M]atter taken as a whole, the predominant appeal of which to the average person, applying contemporary statewide standards, is to prurient interest, meaning a shameful or morbid interest in nudity, sex, or excretion, and is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and lacks significant literary, artistic, political, educational, or scientific value for minors.*fn3 (Stats. 1986, ch. 51, § 4, p. 132, italics added.)
In amending the statute in 1988, the Legislature deleted the above italicized language. Thus, the statutory definition of ―harmful matter‖ no longer specifies that the material must be such that average adults would consider it patently offensive and unsuitable for minors. Instead, the current statute essentially ―tracks‖ the three-prong test for obscenity articulated by the United States Supreme Court in Miller v. California (1973) 413 U.S. 15, 24 (Miller). (People v. Hsu (2000) 82 Cal.App.4th 976, 992 (Hsu).)
Miller considered the states' power to regulate ― ‗the intractable obscenity problem' ‖ (Miller, supra, 413 U.S. at p. 16), and set out guidelines for regulating obscene materials. Under the Miller test, in determining whether material is obscene, the trier of fact must determine that each of the following three elements are present: ―(a) whether ‗the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, [citations]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.‖ (Id. at p. 24.)
Thus, the modern Miller standard and the current definition of ―harmful matter‖ in section 313 are virtually identical, with the exceptions that under section 313 the relevant community standard by which the material is evaluated is ―statewide‖ and, in context, the work must lack serious literary, artistic, political, or scientific value for minors. In essence, then, to fall within the terms of section 288.2, subdivision (a), the material exhibited to the minor must be ―obscene‖ as defined by Miller, except that its socially redeeming values must be of a nature that can be appreciated by a minor.*fn4 (Miller, supra, 413 U.S. at pp. 23-24.) If this test is not met, there is no violation of section 288.2, subdivision (a) even if the other elements of that statute are met. As to the first two prongs of the test for harmful matter, nothing in section 313 indicates that the ―average person‖ applying ―contemporary statewide standards‖ is anything other than an average adult applying adult standards, or that the determination of whether sexual conduct is depicted or described in a patently offensive way should be made using anything but adult standards.*fn5
2. Sufficiency of the Evidence
Under Miller, the question of what is ― ‗patently offensive' ‖ under the community standard obscenity test is essentially a question of fact. (Miller, supra, 413 U.S. at p. 30.) Thus, we consider whether a rational trier of fact could have found the television clips viewed by A.S. to be patently offensive under contemporary statewide standards. Under this test, ―the primary concern‖ is that the communication be ―judged by its impact on an average person, rather than a particularly susceptible or sensitive person----or indeed a totally insensitive one.‖ (Miller, supra, 413 U.S. at p. 33; see also People v. Wiener (1979) 91 Cal.App.3d 238, 245.)
The sole evidence that the television programming A.S. viewed met the test for harmful matter was the testimony of A.S herself. There was no tangible evidence introduced at trial of precisely what A.S. saw. A.S. testified that while appellant was ―flipping‖ through the channels of the television, she recalls seeing a naked female dancing, and a man and woman, from the waist up, ―having sex.‖ The camera angle was such that the lower portion of the couple could not be seen. The upper bodies of the two people were unclothed, and the woman was ―on top.‖ A.S. observed the female dancing for ―[p]robably like eight minutes,‖ and the couple apparently having sex for ―maybe like 45 seconds.‖
We conclude there is insufficient evidence in the record to hold that the television images, as described by A.S, met the test for harmful matter.*fn6 First, applying a contemporary adult standard, nudity alone is not per se obscene (see Jenkins v. Georgia (1974) 418 U.S. 153, 161), and the high court has stated that ―all nudity cannot be deemed obscene even as to minors‖ (Erznoznik v. City of Jacksonville (1975) 422 U.S. 205, 213). Indeed, the definition of sexual conduct in a statute found in a companion chapter of the Penal Code includes a variety of sexual acts, but not simple nudity or nude dancing. (§ 311.4; see Hsu, supra, 82 Cal.App.4th at p. 993 [looking to § 311.4 to provide guidance on meaning of sexual conduct for purposes of § 313].) Likewise, portrayals of sexual activity are not ipso facto obscene (Kois v. Wisconsin (1972) 408 U.S. 229, 231-232), even if they may be characterized as ―dismally unpleasant, uncouth, and tawdry‖ (Manual Enterprises v. Day (1962) 370 U.S. 478, 490 (lead opn. of Harlan, J.)). As the court stated in Roth v. United States (1957) 354 U.S. 476, 487, sex and obscenity are not synonymous.? Accordingly, in order to determine whether a portrayal of sex is patently offensive to the average adult, [a] reviewing court must, of necessity, look at the context of the material, as well as its content.? (Kois, supra, 408 U.S. at p. 231.) [¶] What is missing from this record is any context by which the reasonable trier of fact can make this determination. There is only a bare-bones recital by A.S. of what she saw: a nude woman dancing and a naked couple having sex, shown from the waist up, and her own characterization of it as pornography.? Without more, neither we nor the jury are permitted to presume that such content is patently offensive to the average adult, applying statewide community standards.
Even if a reasonable jury could conclude that the television clips observed by A.S. ―depict or describe, in a patently offensive way, sexual conduct‖ (Miller, supra, 413 U.S. at p. 24), not all depictions of such conduct constitute harmful matter. Section 313, subdivision (a) also requires that the matter, ―taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.‖ The United States Supreme Court has made clear that even a work that depicts sexual conduct in a patently offensive way-and even a work involving participants who are minors-does not meet the definition of obscenity unless, as a whole, it lacks serious literary, artistic, political, or scientific value. In Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 239, 258 (Ashcroft), the high court struck down as unconstitutional certain provisions of the Child Pornography Prevention Act of 1996 (CPPA) (18 U.S.C. § 2251 et seq.). The court concluded that the CPPA was overbroad in the types of materials it deemed obscene and, therefore, illegal under that federal law. The court noted that the year before the opinion was written, one of the Academy Award nominees for Best Picture was Traffic (USA Films 2000),in which a 16-year-old addict was trading sex for drugs. It observed further that the year before that, the film American Beauty (DreamWorks 1999) won the Academy Award for Best Picture; a movie in which ―a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man.‖ (Ashcroft, at pp. 247-248.)
The court went on to comment: ―Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. See Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Mass.  383 U.S. 413, 419 . . . (plurality opinion) (‗[T]he social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness'). Under Miller, the First Amendment requires that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive. See Kois v. Wisconsin[, supra,] 408 U.S. 229, 231 . . . . For this reason, and the others we have noted, the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the definition of obscenity.‖ (Ashcroft, supra, 535 U.S. at pp. 248-249.)
It is impossible on this record to conclude that the television segments A.S. observed did not contain ―serious literary, artistic, political, or scientific value for minors.‖ (§ 313, subd. (a).) Was the dance by the unclothed female lurid, artistic, or even a cultural or tribal dance? There is no way to know and no reasonable basis for inferring that it lacked such value. As to the 45-second glimpse of the couple presumably having sexual intercourse, was the clip part of a tawdry adult film, a former Academy Award winner being shown on television that night, or even a brief scene from Shakespeare's Romeo and Juliet?*fn7 Once again the record provides no basis for drawing a reasonable inference that either clip lacked ―serious literary, artistic, political, or scientific value for minors.‖ Without that evidence, a reasonable jury would not be able to judge the clips viewed by A.S. to be ―harmful matter,‖ as defined in section 313.
Accordingly, in the absence of evidence that the material defendant showed to A.S. was ―harmful matter‖ as defined in section 313, defendant's conviction of violating section 288.2 must be reversed.
B. Inquiry into Juror Misconduct
Defendant contends the trial court conducted an inadequate inquiry into possible juror misconduct. When a juror's ability to perform his duties properly is called into question, ―[t]he duty of the court to conduct [an] inquiry [to determine the fact] is well settled.‖ (People v. Haskett (1990) 52 Cal.3d 210, 238.) The inquiry must be sufficient to determine whether there is good cause to discharge a juror, and failure to make such an inquiry is an abuse of discretion. (People v. Keenan (1988) 46 Cal.3d 478, 532.)
Before the jury began deliberations, the trial court instructed it that during ―deliberations [it should] not discuss or consider the subject of penalty or punishment.‖ While the jury was deliberating, however, defense counsel alerted the court that defendant and his wife had heard one of the female jurors in the hallway say, ― ‗It's not like he is getting life for it.' ‖ The trial court questioned the bailiffs, who had been with the jurors, as to whether they had heard such statement, and they said they had not. The trial judge then asked the jurors, as a group, whether they had said or heard such a statement. They said they had not heard the statement and that they had not discussed the question of punishment. The court reminded the jurors that they could not consider punishment and allowed them to continue deliberating. The court refused defendant's request to interview the female jurors individually. Defendant contends that by questioning the jurors as a group, instead of individually, the court failed to properly investigate the issue of jury misconduct.
We find guidance in People v. Manriquez (1976) 59 Cal.App.3d 426. The court there held that an en masse inquiry by the trial court on possible jury misconduct was adequate to determine whether a juror should be discharged. (Id. at p. 431.) In Manriquez, a first degree robbery case, during deliberations the court found that one of the jurors had been the victim of an attempted armed robbery, and that she had discussed it with the other jurors. (Id. at pp. 428-430.) The court asked the other jurors as a group whether they would be able to continue with their duties, and they responded that they would. (Id. at p. 430.) The Court of Appeal affirmed, noting that although it was aware of no cases with similar facts, the procedure the trial court used was adequate. (Id. at pp. 431, 433.)
The trial court did not abuse its discretion here. Defendant and his wife were not able to identify the juror they heard make the comment. The assembled jurors all told the judge that they had neither made nor heard such a comment, and that they understood they should not consider it. The trial court was also assured that the jurors had not discussed the subject of penalty in their deliberations. Under the circumstances, this inquiry was adequate.
C. Admission of A.S.'s Testimony Regarding D.D.'s Statements
Defendant contends the trial court erred by admitting hearsay evidence of statements D.D. made to A.S. A.S. testified that the day after the incident in question, she told D.D. what had happened. D.D. was supportive, became upset, and cried. Over defense counsel's objection, A.S. further testified that D.D. said ― ‗You have to tell on him.' ‖ A.S. then said, ― ‗I think I'm making it a bigger deal than it is. I don't know if this is grounds for him to even get in trouble,' ‖ and D.D. responded, ― ‗It is. He is an adult. He knows better.' . . . ‗You need to tell on him because that was wrong.' ‖ According to defendant, these statements were inadmissible hearsay and their introduction prejudiced him.
A statement is hearsay only if it ―is offered to prove the truth of the matter stated.‖ (Evid. Code, § 1200, subd. (a).) The trial court does not commit error when overruling a hearsay objection, if ―the testimony was offered merely to show that the conversation was held and not to prove the truth of the matters asserted.‖ (People v. Gonzales (1968) 68 Cal.2d 467, 471-472; see People v. Dalton (1959) 172 Cal.App.2d 15, 19.) D.D.'s statements were not admitted for the truth of the matter asserted-that is to prove that defendant was an adult and that his actions were wrong. Their relevance, if any, was to the reasons for A.S.'s own actions after the incident.
In any event, the admission of D.D.'s statements was not prejudicial. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1293 [―[w]hen the court abuses its discretion in admitting hearsay statements, we will affirm the judgment unless it is reasonably probable a different result would have occurred had the statements been excluded‖].)
D.D. had no first-hand knowledge of defendant's actions. We see no possibility that a jury would be improperly influenced by her opinion that the actions A.S. described were wrong.*fn8
Defendant's conviction of violating section 288.2, subdivision (a) (count I) is reversed, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.