Appeal from a judgment of the Superior Court of Orange County, David A. Thompson, Judge. (Super. Ct. No. 09CF0367)
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
SUMMARY OF CONCLUSIONS, HOLDING, AND REASON FOR PUBLICATION
Defendant John Stuart Moses was convicted of a single count of violating Penal Code section 288, subdivision (a). He challenges his conviction, and many of the probation conditions imposed by the trial court. We conclude substantial evidence showed defendant acted with the specific intent to gratify his own or the victim's sexual desires, and the trial court did not err in modifying the standard jury instruction on unanimity.
We hold that several of the probation conditions are unconstitutionally overbroad because they fail to adequately inform defendant whether his conduct will comply with the probation conditions. We direct the trial court to modify those probation conditions to include a knowledge requirement, and to strike certain other probation conditions. We publish this portion of the opinion because each of the probation conditions we are directing the trial court to modify or strike is part of a four-page, preprinted form of probation conditions used in the Orange County Superior Court, apparently since 2003, entitled "Superior Court of California, County of Orange Sex Offender Terms and Conditions of Probation-Addendum." The superior court should modify that form to comply with constitutional mandates and to avoid further repetitive, successful challenges to its probation conditions.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In December 2007, then 13-year-old C.C. began communicating with defendant, then 23 years old, via a Web site called VampireFreaks. Her age was listed as 18 on her VampireFreaks and MySpace.com profiles, which defendant saw. About a week after they first exchanged online messages, defendant and C. met at a library near her home, where they hugged, and talked for about an hour. C. told defendant she was 18 years old; when defendant said she looked "really young," she told him "baby faces ran in the family."
The second time defendant and C. met, they sat together in the backseat of defendant's car. They took photographs of themselves kissing, embracing, and "making out."
Defendant and C. met for the final time on December 8, 2007. They sat together in the backseat of defendant's car, which was parked in a dark parking lot, for one or two hours; they kissed and made out, and C. testified she performed oral sex on defendant. Although they tried to engage in sexual intercourse, according to C., they were unable to do so because defendant could not maintain an erection.
C.'s mother found out about the relationship after discovering "very explicit sex conversations" between her daughter and defendant on C.'s computer, and finding the pictures of C. and defendant. C.'s mother confronted her daughter, who initially denied it, but then said she loved defendant, and admitted engaging in sexual activity with him. C.'s mother called defendant, who, she testified, admitted he and C. had engaged in oral sex and sexual intercourse in the backseat of his car, and that he threw the condom he had used out of the car window.
Defendant testified that he believed C. was 18 years old. According to defendant, he and C. only met twice, and the only physical contact between them was the hugging and kissing in the backseat of his car, which had been captured on camera. Defendant admitted he and C. had French kissed, but claimed they did not engage in any sexual activity, and that C. had never seen or touched his penis.
Defendant was charged with three counts of committing a lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a)); the information alleged that, with respect to count 3, defendant engaged in substantial sexual conduct with a child under 14 years of age (id., § 1203.066, subd. (a)(8)). A jury found defendant not guilty of two counts of committing a lewd act, and deadlocked on count 3. A second jury found defendant guilty of count 3, but found the substantial sexual conduct allegation not true. The trial court suspended imposition of sentence, and placed defendant on three years' probation, with conditions. Defendant timely appealed.
WAS THERE SUBSTANTIAL EVIDENCE SUPPORTING DEFENDANT'S CONVICTION FOR COMMITTING A LEWD OR LASCIVIOUS ACT ON A CHILD UNDER THE AGE OF 14?
Defendant argues there was insufficient evidence to support the jury's finding that he acted with the specific intent to gratify the sexual desires of himself or of C., which is an element of the crime of committing a lewd or lascivious act.*fn2 "'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if "'upon no hypothesis whatever is there sufficient substantial evidence to support'" the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"'[Penal Code S]section 288 is violated by 'any touching' of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.' [Citation.] 'Because intent can seldom be proved by direct evidence, it may be inferred from the circumstances. [Citations.]' [Citation.]" (People v. Mullens (2004) 119 Cal.App.4th 648, 662.)
We conclude that evidence of making out and French kissing for an extended period of time in the backseat of a car parked in a dark parking lot is sufficient to prove the intent to gratify sexual desires necessary to violate Penal Code section 288, subdivision (a). As another appellate court explained: "Defendant gave Melinda a 'French kiss' on the mouth and touched her breasts by placing his hand under her shirt. This conduct is quintessentially lewd and lascivious and blatantly betrays defendant's intent to gratify his own sexual desires." (People v. Guardado (1995) 40 Cal.App.4th 757, 762.) C. testified that on December 8, 2007, she and defendant kissed and made out in the backseat of defendant's car. Defendant testified the two were in the backseat of his car for a couple of hours that day, and were French kissing and making out for some part ...