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
...