APPEAL from a judgment of the Superior Court of Sacramento County, Patricia C. Esgro, Judge. (Retired Judge of Sacramento Sup. Court, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) (Super. Ct. No. 08F07699)
The opinion of the court was delivered by: Robie ,j.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Over a two-year period, defendant Randal Scott Keister molested K., the teenage daughter of his girlfriend, and left sexually explicit writings and objects in K.'s bedroom. A jury found him guilty of four counts of committing a lewd act on a child, one count of battery, and eight counts of contacting or communicating with a minor with the intent to commit an enumerated sex offense (Pen. Code,*fn2 § 288.3, subd. (a)).
Section 288.3, subdivision (a) reads as follows: "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 an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense."
Defendant appeals, raising five constitutional challenges to section 288.3 (including one to the proposition that contains the section) and an argument regarding what he believes is a lesser included offense to section 288.3. Finding no merit in these contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
K. was 15 years old at trial. Since the time K. was in sixth grade, defendant had been the boyfriend of K.'s mother. They all lived together in an apartment in Carmichael, and K.'s grandmother lived a "couple of doors down."
The first time defendant molested K. was in 2006 when she was 12 and in sixth grade. She and defendant were home alone watching a movie in her mother's bed. He started giving K. a "massage" that began on her back and finished on her "butt." She was "[s]uprised" and went to her bedroom. She was "confused" and did not tell her mother.
The last time defendant molested K. was in summer 2009 when she was 14 and transitioning between eighth and ninth grade. It was nighttime, and she had fallen asleep on the couch in the living room. She awoke to defendant touching her vagina with his fingers. She told him to "'[s]top'" and went into her bedroom.
In between these incidents were several more. Before she turned 14, defendant touched her "butt" while she was playing "Guitar Hero." When she was 13 and at her grandmother's apartment, defendant "grabbed [her] [buttocks]" while she was "standing next to [him]" while he was at a computer. Another time at K.'s grandmother's apartment, defendant "grabb[ed] [K.'s] butt" when K. was sitting in his lap while he was on the computer playing "[M]y World of Warcraft." K. "stood up and turned away."
In addition to molesting K., defendant left sexually explicit writings and objects in K.'s bedroom. He left her a book entitled Nervous, which contained numerous passages describing sex acts, along with a note saying, "'I like this part.'" He left her a vibrator. He left her numerous letters and notes.*fn3 K.'s mother found one of these letters and asked her about it. That was the first time K. talked "about this." A few days later, K. told her best friend. The mother of K.'s best friend eventually called "C.P.S." after K.'s mother said she "wanted to deal with the situation herself."
Both K. and defendant were interviewed by police. K. told police about specific instances when defendant had molested her. Defendant told police his involvement with K. was a "misplaced attraction thing," owing to "loneliness" because K.'s mother worked nights. He knew what he did was "wrong." He described specific instances when he had molested K., including one time at her grandmother's apartment. At the suggestion of police, defendant wrote K. an apology letter. He wrote what he did was "unacceptable." He was "sorry [he] put [K.] in a no win situation and made [her] feel trapped and alone."
Defendant presented no witnesses at trial. In closing argument, defense counsel conceded defendant's guilt with respect to two lewd acts (touching of K.'s buttocks while watching the movie and touching her vagina) and all the luring counts with the exception of the one based on the book.
Constitutional Challenges To Section 288.3
Defendant raises five constitutional challenges to section 288.3, including one to the proposition that contains the section. Specifically, he claims: (1) section 288.3 unconstitutionally restricts the freedom to travel; (2) section 288.3 is void for vagueness; (3) section 288.3 improperly restricts free speech; (4) section 288.3 violates the equal protection clause; and (5) Proposition 83 that contains section 288.3 violates the single-subject rule. We address each argument in turn, finding merit in none.
Defendant contends section 288.3 is unconstitutional because "it improperly restricts the freedom of movement of any person the state identifies as having a sexual attraction towards children." According to defendant, this improper restriction comes from the statute's failure to "require the intent to commit an immediate sex act." These arguments are unavailing.
"[T]he nature of our Federal Union and our constitutional concepts of personal liberty . . . require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." (Shapiro v. Thompson (1969) 394 U.S. 618, 629 [22 L.Ed.2d 600, 612].)
Section 288.3 does not unconstitutionally restrict the right to travel because it does not "unreasonably burden or restrict . . . movement." (Shapiro v. Thompson, supra, 394 U.S. at p. 629 [22 L.Ed.2d at p. 612].) Rather, it burdens or restricts movement only to the extent that movement is contact or communication with a minor or an attempt to do so with the specific intent to commit an enumerated sex offense. (§ 288.3, subd. (a).) That restriction is reasonable because the statute which contains it is "one of many penal statutes by which 'the Legislature has evidenced a long-standing and consistent history of specifically protecting minors from sexual exploitation and predation.'" (People v. Hsu (2000) 82 Cal.App.4th 976, 988-989.) That the statute does not require the intent to commit a sex act to be immediate is immaterial. Defendant has pointed to no constitutional requirement requiring the intent be imminent for the contact or communication to be punishable. In addressing a similar type of argument dealing with a challenge to a state "hate crime" statute, our Supreme Court rejected an argument that the federal Constitution always requires the threatened harm to be imminent for the threat to be constitutionally punishable. (In re M.S. (1995) 10 Cal.4th 698, 706, 711.)
For these reasons, defendant's challenge to section 288.3 as an unreasonable restriction on the ...