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People v. Fromuth

California Court of Appeals, Sixth District

August 3, 2016

THE PEOPLE, Plaintiff and Respondent,
v.
RYAN JHONG FROMUTH, Defendant and Appellant.

         Monterey County Superior Court, No. SS132170, Honorable Pamela L. Butler, Trial Judge.

          Attorney for Defendant and Appellant: Alexis Ivar Haller Under Appointment by the Sixth District Appellate Program.

          Attorneys for Plaintiff and Respondent: Kamala D. Harris Attorney General of California, Gerald Engler Chief Assistant Attorney General, Jeffrey M. Laurence Acting Senior Assistant Attorney General, Catherine A. Rivlin Supervising Deputy Attorney General.

          MIHARA, J.

         Defendant Ryan Jhong Fromuth was convicted by jury trial of violating Penal Code section 288.4, subdivision (b).[1] Section 288.4 provides: “Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of... engaging in lewd or lascivious behavior” and “who goes to the arranged meeting place at or about the arranged time” commits a felony. (§ 288.4.) Defendant was granted probation.

         On appeal, he makes two related contentions premised on his assertion that the “motivated by” element of the offense requires that the motivation be a “substantial factor” in the commission of the proscribed conduct. He asserts that the jury’s verdict is not supported by substantial evidence that the required motivation was a substantial factor and that the trial court prejudicially erred in failing to give a “substantial factor” instruction. Defendant also contends that the trial court prejudicially erred in refusing to instruct on entrapment, that his trial counsel was prejudicially deficient in failing to object to the court’s imposition of probation services fees in the absence of evidence of his ability to pay those fees, and that the court imposed a section 290.3 fine in a statutorily unauthorized amount.

         While we agree with defendant that the “motivated by” element requires proof that the motivation was a substantial factor in the commission of the prohibited conduct, we find substantial evidence to support the jury’s verdict and conclude that the trial court did not have a sua sponte duty to give a substantial factor instruction. We also conclude that the court was not obligated to instruct on entrapment and that defendant’s trial counsel was not deficient in failing to object to the imposition of probation supervision fees. However, we find that the trial court failed to comply with its duty to specify the statutory bases for its imposition of a $1, 610 section 290.3 fine, and we remand for the court to fulfill its duty.

         I. Factual Background

         In October 2013, Sergeant Brian Hoskins of the Monterey County Sheriff’s Department began an investigation into predators on Craigslist. As one part of his investigation, he posted an advertisement on Craigslist. He posted the advertisement in the “casual hookup/NSA” part of the “personal/romance” portion of the “casual encounters” section of Craigslist. “NSA” stands for “No strings attached.” This section is “known to be the section for people looking for... casual sex.” Craigslist permits a person posting an advertisement in this section to specify gender and “what you’re looking for, ” and “[t]here’s a box for your age....” Craigslist prominently states that “ ‘by posting here you confirm you’re 18 or older.’ ”

         Hoskins’s advertisement, which was posted at 2:19 p.m. on October 26, 2013, was headed: “Young cutie looking for a hookup today!!! - w4m (Salinas).” The “w4m” signified a woman seeking a man. The text read: “Hi, I am young and cute looking to hookup with someone today. This is for today only and probably will be a onetime thing. Yes I do have a bf, so this has to be on the way DL. I am drama free and clean and you need to be to. I promise you wont be disappointed with my looks. I am latina 5’6, 115 pound with brown hair past my shoulders and brown eyes. I am looking to do this today, so only send me a message if you can meet today. I am very real. Put ‘today’ in the subject line and send me a pic. I I liked what I see I will respond.” Hoskins left the age box blank. He did this because he knew that an advertisement stating an age under 18 would be removed from Craigslist. Hoskins left his advertisement up for an hour to an hour and a half, and he received over 300 responses.

         At 2:56 p.m., defendant, who was 30 years old, responded to the advertisement. He provided a photo (showing him fully clothed) and said: “Hi there. There’s my picture. I’m 6’0, 160lbs, half asian. Anyway, good luck with your hook up. Oh and I’m in Salinas and available!” Hoskins, who was pretending to be “Maria Garcia, ” responded at 3:05 p.m. “Hey, you are cute. Where are you from? I am 15 and dont drive so you would have to come pick me up let me know if that is going to be a problem. How old are you?” Defendant responded five minutes later: “Thanks. I’m from Salinas, and I’m much older than 15. My advice for you hooking up on craigslist is to stop telling people you’re 15 because that makes people worry about if you’re actually 15 trying to hook up, or police.” Hoskins responded three minutes later: “I just want to be honest so that no dudes go all crzay on me. That’s all, but ok thank you. What if someone asks for my id?” Defendant responded six minutes later: “People ask for id if you look too young and they check if you’re over 18. There’s no reason to ask for ID if you are telling people you’re 15. Maybe there’s something else you can do today besides hook up with someone? You’re unhappy with your boyfriend? Do you have skype or AIM or something?”[2]

         Hoskins ceased communicating with defendant after defendant gave this response because his protocol was to terminate contact if the responder suggested something other than sex. At 3:15 p.m., Hoskins took down the advertisement. Almost an hour later, defendant wrote to “Maria” again: “You deleted your ad so I hope you found your hookup?” Hoskins responded one minute later: “I think I did. But if I didnt, ill message you.” Defendant responded six minutes later: “When you delete your ad, pretty soon I don’t think it lets us talk anymore. We’ll have to share email directly... mine it ryan909@gmail.com [¶] Good luck I hope everything goes okay~”

         Several hours later, just before 8:00 p.m., Hoskins sent an e-mail to defendant: “So it looks like I got ditched on. Are you still interested?” Defendant responded seven minutes later: “Hi. Did it go badly too? What part of Salinas are you?” Hoskins responded 49 minutes later: “Im in creekbridge. Yes he ditched me. never showed up. Where are you at?” Defendant replied three minutes later: “south salinas. You think you want to see me?” Hoskins responded one minute later: “If you are down and not into games. We both know what this is about.” Defendant responded seven minutes later: “So, where are we going? Am I picking you up or am i just visiting you?” Hoskins responded two minutes later: “Well are you down or do you just want to talk?” Defendant responded two minutes later: “I’m down. What’s the plan?”

         Over the next hour, Hoskins and defendant exchanged a flurry of e-mails. Hoskins told defendant “I don’t want to do this in a car in case we get caught.” Defendant offered to “get us a room.” Hoskins informed defendant: “I am not on bc [birth control] so you would have to bring something to handle that too. I have to know before we meet you are not into weird stuff?” Defendant responded: “I consider this weird actually, because I wouldn’t tell people I know that I consider doing this.” Hoskins told defendant: “Well I am not very expereinced, so I want to know what you want me to do. But I am good with all the normal stuff. I guess I am trying to say I am scared of anal. You aren’t going to try that with me or make me do that right.” Defendant asked where he would pick her up, and he reassured her that “[i]f you were uncomfortable with something it would bother me.” He also reassured her that he would be “using protection” and was “not here to trick or bother you, but it’s good to be cautious!” Hoskins told defendant “I have only been with two guys” and was therefore “nervous.” When Hoskins asked “wat motel, ” defendant replied: “You seem pretty bright, so I hope you appreciate that both of us are facing a risky situation. I can’t just be reckless now either. That means I don’t want to type any direct answer for that in a message.” Hoskins told defendant: “Other than regular and oral you arent expecting anything else right. No crazy stuff. Just fun for us both. There are a lot of creepers out there. But you dont seem like.”

         Just after 10:00 p.m., as they making final arrangements to meet, defendant asked: “It’s not too late for you to go out?” Hoskins responded: “No my mom works nights.” Hoskins asked defendant: “I want to know how much you are cuz I am very tight down there and if you are to big it is guna hurt and will you lick me first cuz I have never had a guy do that to me. Or is that something you dont do?” Defendant responded: “Sounds fun. 6” is the average size I am. I can’t believe nobody has ever ever licked you.” Hoskins responded: “Ok, sounds good.... Make sure you have protection I am not on BC.” Hoskins expressed concern that defendant’s roommates might hear them. Defendant asked “Are you loud?” Hoskins responded: “I am loud if it feels good.” Hoskins asked if defendant’s “bed make lots of noise when you do it.” Defendant assured Hoskins that it was “not too noisy.” Hoskins reminded defendant “Dont forget protection.” As Hoskins was providing directions to defendant to the location where “Maria” would meet defendant, defendant e-mailed: “This is the riskiest part you know.... It’s very scary.”

         When defendant arrived at the designated meeting location, he was arrested. A single condom was found in the center console of his vehicle. Defendant told Hoskins that he was there to meet a girl he had met on Craigslist. Hoskins asked defendant “why he thought it was a good idea to meet with a 15-year-old girl.” Defendant responded “that it wasn’t a good idea, that it was a horrible idea. That he had wrecked his life and his family was going to be disappointed in him.” Defendant explained to Hoskins that he was “both horny and stressed, ” “had broken up with his ex-girlfriend several months earlier, ” and “had issues with impulse control.” He also admitted to Hoskins that, “if there would have actually been a 15 year old, ” he would have had sex with her. Defendant told Hoskins that he “felt this may have been a police sting operation” and “didn’t know why he still came.” He admitted that he knew that what he had done was wrong. Defendant said that he had brought the condom at the girl’s request. He also told Hoskins that he “didn’t even actually think that it was possible for a 15 year old to be on Craigslist looking for a hookup.”

         II. Procedural Background

         Defendant was charged by information with three counts: a violation of section 288.4, subdivision (b); a violation of section 288.3, subdivision (a) (contacting or communicating with a person he believed to be a minor for the purpose of committing a sexual offense); and attempted oral copulation of a person under 16 (§§ 288a, subd. (b)(2), 664). It was further alleged that he had previously suffered a felony conviction for which he had served a prison term (§ 667.5, subd. (b)).[3]

         Hoskins was the only prosecution witness at trial. Defendant was the only defense witness. He testified that he did not intend to have sex or engage in any other lewd conduct with a 15-year-old when he arrived at the arranged meeting with “Maria.”[4] His trial counsel argued that “the issue in this case is whether or not Mr. Fromuth thought he was meeting a 15 year old for sex. The other elements, quite frankly, aren’t really in dispute.” “We posit that he never believed this person to be a minor, that he wasn’t intending to go and have sex with a 15-year-old girl.”

         Defendant was acquitted of the attempted oral copulation count and convicted of the section 288.4 count. The jury was unable to reach a unanimous verdict on the section 288.3 count.[5] The court suspended imposition of sentence and placed defendant on probation for three years conditioned on him serving a year in jail. He was ordered to register as a sex offender for the rest of his life. The court also ordered defendant to pay a probation services fee of $864 plus $81 per month and a section 290.3 fine of $1, 610. Defendant timely filed a notice of appeal.

         III. Discussion

         A. Section 288.4’s “Motivated By” Element

         The premise for defendant’s challenges to the sufficiency of the evidence to support his conviction and to the validity of the court’s instructions on the section 288.4 offense is that the “motivated by an unnatural or abnormal sexual interest in children” element of the section 288.4 offense requires that this motivation be a “substantial factor” in the commission of the proscribed conduct.

         Section 288.4 provides: “(a)(1) Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of... engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5, 000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment. [¶]... [¶] (b) Every person described in paragraph (1) of subdivision (a) who goes to the arranged meeting place at or about the arranged time, shall be punished by imprisonment in the state prison for two, three, or four years.” (§ 288.4.)

         Defendant relies on In re M.S. (1995) 10 Cal.4th 698 (M.S.) to support his claim that the “motivated by” element requires that the specified motivation be a “substantial factor.” The two minors involved in M.S. had participated in a physical assault on a group of gay men, which had been preceded by the minors shouting “antigay epithets” and making threats of harm to the victims. (M.S., at pp. 707-708.) A petition was filed alleging that the minors had violated section 422.6, which makes it a misdemeanor to engage in certain conduct, including criminal threats, “because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.” (§ 422.6, subds. (a), (b), italics added.) The petition also alleged assault and battery counts that were accompanied by enhancement allegations under section 422.7, which applies where “the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured to him or her” by law. (§ 422.7, italics added.) The juvenile court found the allegations true. (M.S., at p. 709.)

         The minors in M.S. claimed that the “ ‘because of’ ” language was unconstitutionally vague and that this language required proof of “ ‘but-for’ causation.” (M.S., supra, 10 Cal.4th at pp. 716, 718.) The California Supreme Court concluded that the “ ‘because of’ ” language, which it referred to as the “discriminatory motivation, ” was not vague because this language was “commonly and properly used to indicate that an event, in this case the crime, was caused in fact by something, in this case the accused’s prohibited bias.”[6] (M.S., at pp. 716-718, italics added.) The court noted that this same language appeared in a variety of other civil rights and antidiscrimination statutes, and it cited People v. Superior Court (Caswell) (1988) 46 Cal.3d 381 (Caswell) as an example of a criminal case in which it had upheld an analogous statute against a vagueness challenge. (M.S., at pp. 717-718.) Caswell involved section 647, subdivision (d), which prohibited “ ‘loiter[ing] in or about any toilet open to the public for the purpose of engaging in or soliciting any lewd or lascivious or any unlawful act.’ ” (Caswell, at p. 390.)

         After resolving the vagueness issue, the court considered the meaning of the “ ‘because of’ ” language. The minors claimed that the “ ‘because of’ ” language required “ ‘but-for’ causation, ” while the Attorney General contended that all that was required was that the “bias motivation” “ ‘contributed to’ or was ‘a factor in’ the offense.” (M.S., supra, 10 Cal.4th at pp. 718-719.) The California Supreme Court considered “the legislative purpose” in enacting these statutes and concluded that the “bias motivation” was not required to be the sole cause but only “a substantial factor” in the offense. “By employing the phrase ‘because of’ in sections 422.6 and 422.7, the Legislature has simply dictated the bias ...


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