Error and/or relief
There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.
First Holding:
We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.
Authority:
People v. Zaragoza (2016) 1 Cal.5th 21, 44
Second Holding:
The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.
Authority:
People v. Bolin (1998) 18 Cal.4th 297, 331
Third Holding:
Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.
Authority:
People v. Clark (2011) 52 Cal.4th 856, 943
People v. Covarrubias (2016) 1 Cal.5th 838, 890
Fourth Holding:
While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.
Authority:
People v. Lara (2017) 9 Cal.App.5th 296, 320
Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]
People v. Ware (2022) 14 Cal.5th 151, 167
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009
Fifth Holding:
The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.
Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.
Authority:
People v. Collins (1968) 68 Cal.2d 319, 327–332
People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889
People v. Wilson (2019) 33 Cal.App.5th 559, 568–572
People v. Panah (2005) 35 Cal.4th 395, 476
Sixth Holding:
Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.
Authority:
Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510
Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981
Seventh Holding:
Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.
The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.
Authority:
People v. Lara (2017) 9 Cal.App.5th 296, 324
People v. Collins (2025) 17 Cal.5th 293, 307–308
People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]
Eighth Holding:
We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.
Authority:
People v. Brents (2012) 53 Cal.4th 599, 618
People v. Jones (2002) 103 Cal.App.4th 1139, 1143
Ninth Holding:
Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.
(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)
(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)
Authority:
(Regarding section 12022.1 on reversal of primary count:)
PEN 12022.1(g)
(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)
People v. Scott (2012) 203 Cal.App.4th 1303, 1324
People v. Mitchell (2001) 26 Cal.4th 181, 185
People v. Zackery (2007) 147 Cal.App.4th 380, 387–388
People v. Gobert (2023) 89 Cal.App.5th 676, 689
People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2
Tenth Holding:
Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)
Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.
Authority:
People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209
Eleventh Holding:
Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.
Authority:
People v. Fuentes (2022) 78 Cal.App.5th 670, 680
People v. Andra (2007) 156 Cal.App.4th 638, 640
Twelfth Holding:
When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.
Authority:
People v. Deloza (1998) 18 Cal.4th 585, 591-592
Thirteenth Holding:
If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.
Authority:
People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268
