Filed 5/22/14 P. v. Deng CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JAMES MAJOK DENG, Defendant and Appellant. H038016 (Santa Clara County Super. Ct. No. C1091996)

Defendant James Majok Deng appeals his convictions, following a court trial, for felony distributing harmful matt er to a minor with intent to seduce (former Pen. Code, § 288.2, subd. (a)) 1 and misdemeanor annoying or harassing a minor (§ 647.6, subd. (a)(1)). Before trial, defendant unsu ccessfully moved to suppress all evidence obtained as a result of an alle gedly illegal traffic stop. On appeal, defend ant contends that the trial court erred in denying his motio n to suppress because th e traffic stop was an unlawful detention and that his attorney provid ed ineffective assistan ce of counsel related to the suppression hearing. Alternatively, defendant claims there was insufficient evidence to convict him of eith er offense, that various fe lony probation conditions are unconstitutional, and that his sent ence violates section 654. For the reasons stated here, we will fi nd there was: (1) adequate suspicion to

1 Unspecified statutory references are to the Penal Code. After defendant’s arrest, the Legislature made minor amendments to section 288.2 in 2011 and 2012 before repealing and reenacting section 288.2 in its entirety in 2013. (Stats. 2011, ch. 15, § 317; Stats. 2012, ch. 43, § 16; St ats. 2013, ch. 777, § 1.)justify defendant’s detention; (2) sufficient evidence to support his felony conviction under former section 288.2, subdivision (a); (3) sufficient eviden ce to support his misdemeanor conviction under section 647.6, subdivision (a)(1); and (4) defendant’s section 654 claim is unripe because the trial court suspended imposition of sentence on both counts. We will also m odify five of defendant’s fe lony probation conditions. Defendant’s appellate counsel also f iled a petition for writ of habeas corpus, alleging ineffective assistance of counsel re lated to trial counsel’s performance at the suppression hearing, which we ordered considered with this appeal. We dispose of the habeas petition by separate order filed th is day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).) I. TRIAL COURT PROCEEDINGS This factual background is based on defendant’s interrogation by Officer Alejandro Ortiz of the City of San Jose Po lice Department and the testimony of Officer Ashley Weger of the City of San Jose Police Department at the hearing on defendant’s motion to suppress, as well as the trial testimony of Officer Weger, Officer Ortiz, and the victim. On August 19, 2010 , a mother picking up her child from an el ementary school at the corner of Taper Lane and Tobago Avenue in San Jose called the police at 5:55 p.m. after observing a suspicious vehicle parked on Taper Lane. The moth er stated that the vehicle, a gray or silver Toyota Celica, c ontained one black male (later identified as defendant) in his late twenties or early thirties, who was bald with a mustache. Defendant was reportedly “looking at some of the juveniles that were there at the school, specifically a young boy.” Officer Weger was on duty and was dispatch ed to respond to the report. At the time of the dispatch, the officer did not have any information about how long defendant’s vehicle had been present. Wh en Officer Weger arrived at the intersection of Taper and Tobago ten minutes after the initial report, the officer did not see a car matching thedescription in the immediate area. As Offi cer Weger drove in the surrounding area, she saw a gray or silver Celica traveling nort hbound on Tobago roughly eight houses away from the intersection with Taper heading in the same direction as the officer’s patrol car. The Celica then pulled into a dr iveway to turn around, allowi ng Officer Weger to see that the driver matched the descrip tion provided in the reporting ca ll. As defendant reversed the Celica, Officer Weger made eye contact with him. Defendant, afte r hesitating briefly, completed his turn and proceeded southbou nd on Tobago toward the intersection with Taper. Before Officer Weger and defendant passe d one another, the officer activated her “manual siren” (described as a “short beep or chirp”), “told him to pull over to the side of the road,” and pointed to the side of the road with her left hand. Defendant momentarily stopped his car on the side of Tobago but, as Officer Weger made a U-turn to pull up behind defendant’s car, defendant “pulled away from the curb and . . . a ccelerated around the corner” out of the officer’s sight. Defendant did not br eak traction when proceeding around the corner but made th e turn more quickly “than you would expect” traffic to travel on that street. Rega rding defendant’s sudden acc eleration around the corner, Officer Weger reported to her dispatch offi cer that there could be a language barrier between defendant and the o fficer. Officer Weger completed her U-turn, turned onto Taper, and stopped he r patrol car behind defendant, who was pulled over on the north curb of Taper. At the time of the traffic stop, Officer Weger observed children in the

area. When Officer Weger approached defendant ’s car and asked him why he was in the area, defendant told her he was looking fo r a church. The location of the church defendant provided, however, was not close to their present location. During the traffic stop, the parent who made the original compla int returned to the ar ea at Officer Weger’s request and confirmed that defendant was the same person she originally saw near the school. Officer Ortiz arrived during the stop and joined Office r Weger at defendant’s car.Upon noticing a cellular phone in defendant’s car, Officer Ortiz received permission from defendant both to insp ect the phone and to turn it on. Officer Ortiz reviewed the text messages on defendant’s phone, which were adm itted into evidence at trial. The phone’s “outbox” contained a text message sent to wh at was later determined to be the victim’s phone number that said “Hey babe[.]” Another message stated “Hey i thoungh u gonna give address so that we can hang out fooling around there.” ( Sic .) Based on the text messages he reviewed, Officer Ortiz suspected defendant was in the area to meet someone. Wh en the officer asked defendant if he was there to meet someone, defendant stated he was, and admitted that “ ‘[s]he told me she was 13 or 14.’ ” Upon hearing this, Officer Ortiz arrested defe ndant and took him to the police station for a recorded interrogation. At the beginning of the interrogation, O fficer Ortiz informed defendant of his Miranda 2 rights, which defendant waived. Defenda nt told Officer Ortiz that he met the victim (Doe) on the MySpace online social ne twork about two weeks before his arrest. Although Doe’s MySpace profile indicated she was 20 years old, defendant admitted Doe told him at least two times th at she was between 13 and 15 ye ars old. Defendant claimed that he wished to meet Doe in person to verify her age becaus e he could get into trouble if she was a minor. At some point before the day of his arre st, Doe allegedly aske d defendant if they could have “phone sex.” To gi ve defendant an example beca use he was not familiar with the phrase, Doe said defendant should “jack up,” which defendant understood to mean masturbate. Later, Doe apparent ly asked defendant if he ha d “jack[ed] up” and defendant said “yeah.” Based on this evidence and statements from Doe, defendant was charged by complaint with: (count 1) felo ny attempted lewd or lasciv ious act on a child under 14

2 Miranda v. Arizona (1966) 384 U.S. 436.(§§ 288, subd. (a), 664); and (count 2) felony distributing or exhibiting harmful matter to a minor with intent to seduce (former § 288. 2, subd. (a)). In an amended information filed in November 2011, a misdemeanor ch arge of annoying or harassing a minor (§ 647.6, subd. (a)(1)) wa s added as count 3. In April 2011, defendant moved to suppr ess “all tangible and intangible evidence and observations and fruits ther eof, relating to an illegal search and seizure by officers of the San Jose Police Department, on or about A ugust 19, 2010 . . . .” At the hearing on defendant’s motion, the court heard testim ony from Officer Weger (summarized above) as well as arguments regarding the lawfulness of the detention. In denying the motion to suppress, the court concluded that Office r Weger had reasonable suspicion to stop defendant based on the reporting mother’s susp icion and defendant’s continued presence in the area ten minutes later when the office r arrived. Further, “that suspicion was only heightened” when defendant accel erated around the corner. Fi nally, the court stated that its decision was supported by “a strong public in terest in protecting children and the level of scrutiny we give to behavior of persons around school yard s and young children . . . .” After the court denied the motion to su ppress, the People agreed to dismiss count one and defendant waived his right to a jury trial on counts two and three in return for the People’s promise to not seek a pris on sentence if defendant was convicted of count two. At the court tria l in January 2012, Doe, who wa s 12 at the time of defendant’s arrest and 14 at the time of trial, testified about her interactions with defendant. Doe confirmed that they met on MySpace when she accepted a “friend” request from defendant. Doe also confirmed that her MySpace profile listed her age as 20 years old even though she was actually only 12. Doe initially comm unicated with defendant on MySpace through personal messages (similar to email) and inst ant messages. Doe testified that she eventually exchanged phone numbers with defendant and, after having her memory refreshed by her earlier statements to the police, confirmed that she informed defendant she was 12 years old befo re they exchanged numbers.When asked whether she ev er talked about sexual topics with defendant, Doe confirmed she had but was vagu e regarding details. She stat ed that defendant talked about masturbation and about his “penis ” being “excited.” Doe’s testimony was inconsistent regarding whether they discusse d sexual topics via oral communications or telephone text messages. On direct examin ation, she indicated they occurred via text message. On re-direct exam ination, however, she testif ied that the discussion of defendant’s penis being excited occurre d “during the phone conversation.” Apart from the discussion of masturbation, defendant apparently did not discuss any other sexual topics with Doe. Doe stat ed she did not remember whether defendant ever told her anything about wanting to have se x with her and that he never talked to her “about anything specific that he wanted [her] to do . . . .” Doe stated there was no discussion of sexual topics on th e day defendant was arrested. Regarding the day of defendant’s arre st, Doe testified that she responded to defendant’s request that they meet in person by telling him that her house was near McLaughlin Road and Taper La ne. Though she gave him th e general location of her house, Doe testified she was not actually pl anning to meet him and that she became frightened when she r ealized he was coming to the area. The court found defendant guilty of both co unt two, felony di stributing harmful matter to a minor with intent to seduce (former § 288.2, subd. (a)), and count three, misdemeanor annoying or hara ssing a minor (§ 647.6, subd. (a)(1)). This timely appeal followed. II. DISCUSSION
A. L AWFULNESS OF D EFENDANT ’ S D ETENTION The trial court determined that Office r Weger had reasonable suspicion to stop defendant when she activated her manual siren and pointed to the side of the road and “that suspicion was only heightened” when de fendant accelerated around the corner. Onappeal, defendant argues that Officer Wege r did not have reasona ble suspicion that defendant was involved in criminal activity when she stopped his car. In reviewing the denial of a motion to suppress, we defer to the trial court’s findings of fact if they are supported by substantial evidence and exercise our independent judgment to determine the lawf ulness of the search or seizure. ( People v. Miranda (1993) 17 Cal.App.4th 917, 922.) In the traffic stop context, “a police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that th e driver has violated the Vehicle Code or some other law.” ( Id. at p. 926.) Put another way, “[ a] detention is reasonable under the Fourth Amendment when the deta ining officer can point to sp ecific articulable facts that, considered in light of th e totality of the circumstances, provide some objective manifestation that the person detained ma y be involved in criminal activity.” ( People v. Souza (1994) 9 Cal.4th 224, 231 ( Souza ).) To review the reasonableness of defendant’ s detention, we must first determine the point at which defendant was “seized” for Fo urth Amendment purposes. “A person is seized by the police and thus entitled to ch allenge the government’s action under the Fourth Amendment when the officer, ‘ “ by means of physical force or show of authority,” ’ terminates or restrains his freedom of movement, [Citations] . . . . ” ( Brendlin v. California (2007) 551 U.S. 249, 254 ( Brendlin ).) A seizure through a show of authority occurs when a reasonable person would have believed he or she was not free to leave or to decline an officer’s request. ( People v. Zamudio (2008) 43 Cal.4th 327, 341 ( Zamudio ).) Importantly, however, though “[a] police officer may make a seizure by a show of authority and without the use of phys ical force, . . . ther e is no seizure without actual submission . . . .” ( Brendlin, supra, at p. 254, italics added

. ) The United States Supreme Court’s opinion in California v. Hodari D. (1991) 499 U.S. 621 ( Hodari D. ), is instructive. In Hodari D. , “four or five youths” (including Hodari) who were huddled around a car late at night in a “high-crime area” fled on footwhen they saw an unmarked police car approaching. ( Id. at pp. 622-623.) While fleeing, Hodari discarded a small object that turned ou t to be crack cocaine before being tackled by a police officer and arrested. ( Id. at p. 623.) In attempting to suppress the evidence of the crack cocaine, Hodari argued he was seiz ed for Fourth Amendm ent purposes at the moment he saw the police officer running toward him. ( Ibid. ) The Supreme Court disagreed, stating that even if the police offi cer’s “pursuit in the present case constituted a ‘show of authority’ enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled.” ( Id. at p. 629; accord United States v. Baldwin (2007) 496 F.3d 215, 218 [“ ‘[A]n order to stop must be obeyed or enforced physically to constitute a seizure.’ [Citation.]”]. ) In so holding, the court reasoned that given the risk to the public a ssociated with street pursuits, “compliance with police orders to stop should . . . be encouraged.” ( Hodari D., supra, at p. 627.) Applying this rule to the facts as de termined by the trial court, Officer Weger made a show of authority when she activated her manual siren and physically pointed to the side of the road with her hand because a reasonable person would have believed he or she was not free to leave or to dec line the officer’s de mand to pull over. 3 ( Zamudio,

supra, 43 Cal.4th at p. 341.) However, defend ant did not immediately submit to that show of authority because, despite stoppi ng momentarily on Tobago, he accelerated around the corner onto Taper Lane and out of Officer Weger’s sight before she could turn around and pull up behind him. Because of this delayed submission, defendant was not seized for purposes of the Fourth Amendm ent until he submitted to Officer Weger’s authority by coming to a complete stop on Taper Lane.

3 We note that at oral argument counsel for defendant argued that defendant was not detained until he stopped on Taper Lane and Officer We ger ordered him to put his hands on the steering wheel. This distinction is irrelevant to our analysis because of defendant’s delayed submission to Officer Weger’s show of authority.Turning to the reasonableness of the de tention, when she pulled defendant over, Officer Weger knew from her dispatcher that a mother picking up her child from the school at the corner of Tape r and Tobago saw a bald, black male with a mustache sitting in a gray or silver Toyota Celica staring at ch ildren. Though neither the car nor the driver were at the corner when th e officer arrived ten minutes later, Officer Weger saw a car matching the description near the intersection and then witnessed that car driving back toward the location of the citi zen complaint. Seeing that the driver also matched the description provided, Officer Weger made a sh ow of authority and directed defendant to pull over. Instead of stopping and allowing the officer to approach, defendant stopped momentarily, then took off around the corner and eventually stopped again. Defendant’s temporary flight, combined with Officer Weger’s observations and the information provided by the caller, ( People v. Ramey (1976) 16 Cal.3d 263, 269 [“private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their informati on, should be considered re liable”]), constituted “specific articulable facts that, consider ed in light of the totality of the circumstances, provide[d] some objective manifestation” that defendant might have been involved in criminal activity. ( Souza, supra, 9 Cal.4th at p. 231; see also id. at p. 235 [“even though a person’s flight from approaching police officer s may stem from an in nocent desire to avoid police contact, flight from police is a proper consideration—and indeed can be a key factor—in determining whether in a particul ar case the police have sufficient cause to detain.”].) 4

4 Although we find that there was reasona ble suspicion for defendant’s detention, we note a significant factual misstatement in the Respondent’s Br ief that “[defendant] immediately started to leave without any child in his car when the officer arrived at the school . . . .” When asked at the su ppression hearing whether she actually saw defendant’s car in front of the school when she arrived, Officer Weger unequivocally stated “On Taper, no.” The prosecutor made the same argument at the suppression hearing and was immediately interrupted and corrected by the court. Because it goes directly to the level of suspicion Officer Weger had when she detained defendant, theBecause we conclude that defendant’ s detention was lawful, we need not determine whether defendant’s trial counsel was ineffective in failing or ally to specify the evidence to be suppressed. B. S UFFICIENCY OF THE E VIDENCE TO S UPPORT THE F ELONY C ONVICTION Defendant contends there was insuffi cient evidence to support his felony conviction for distributing harmful matter to a minor with intent to seduce. (Former § 288.2, subd. (a).) Defendant claims his communications with Do e did not constitute “matter” or “harmful matter,” as those term s are defined in section 313. Additionally, defendant contends there was insu fficient evidence of his specific in tent to seduce Doe. “When considering a challenge to the su fficiency of the ev idence to support a conviction, we review the entir e record in the light most fa vorable to the judgment to determine whether it contains substantial evid ence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ( People v. Lindberg (2008) 45 Cal.4th 1, 27.) We will affirm a convictio n if “ ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ [Citations.]” ( People v. Alvarez (1996) 14 Cal.4th 155, 224 ( Alvarez ), italics omitted.) 1. Defendant’s Communicatio n Constituted “Matter” The trial court found defendant guilty of violating former section 288.2, subdivision (a) as a felony. At the time of defendant’s communications with Doe, section 288.2, subdivision (a) stated: “Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable ca re in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, li ve or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing,

mischaracterization is significant. Howeve r, at oral argument the Attorney General recognized and a pologized for the misstatement.appealing to, or gratifying the lust or passion s or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state pr ison or in a county jail.” (Former § 288.2, subd. (a).) “ ‘Harmful matter’ ” is defined in secti on 313, subdivision (a) as “matter, taken as a whole, which to the average person, ap plying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way se xual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific va lue for minors.” (§ 313, subd. (a).) Subdivision (b) of section 313 further de fines “ ‘matter’ ” as: “any book, magazine, newspaper, video recording, or other printed or writte n material or any picture, drawing, photograph, motion picture, or other pictorial representation or any st atue or other figure, or any recording, transcription, or mechanical , chemical, or electric al reproduction or any other articles, equipment, machines, or materi als. ‘Matter’ also in cludes live or recorded telephone messages when transmitted, dissem inated, or distributed as part of a commercial transaction.” (§ 313, subd. (b).) Relying on the last senten ce in section 313, subdivisi on (b), defendant claims that because his communications with Doe were n oncommercial “live or recorded telephone messages,” they did not constitu te “matter” for purposes of section 313. Because the messages were not “matter,” defendant conti nues, they could not constitute “harmful matter” under section 313 or fo rmer section 288.2, subdivis ion (a). The People respond that “[t]he harmful matter in this case wa s communicated by text message not a verbal telephone conversation” and that text messa ges are “written material” that meet the definition of matter. (Citing § 313, subd. (b) [“ ‘Matter’ means any . . . written material”].) Before turning to whethe r defendant’s communications fall within the prohibition of former section 288.2, subdivision (a), we must first determine the form of defendant’scommunications with Doe. The record is ambiguous on that point. Both the victim and defendant were unclear in th eir respective statements rega rding how the discussion of masturbation occurred. During defendant’s po lice interrogation, he was broadly asked if he “ever talked to [Doe] about sex” without the means of communication being specified. Defendant said that Doe asked him to have “phone sex,” but he did not specify the means by which that idea was communicat ed. Later in the interroga tion, defendant talks about “call[ing]” Doe and talking about masturbati on, suggesting a verbal communication, but also said he talked about that topic “when we text, yeah.” Similarly, the victim initially testified on direct examinati on that defendant talked about masturbation “on text” but then on re-direct answered “Y es” when the prosecutor aske d if defendant talked about masturbation “during the phone conversation. ” Thus, the exchanges about masturbation may have been via oral message, text message , or a combination of the two. The trial court did not specifically reconcile the testim ony but did state in announcing its guilty verdict as to count two that, “in the Court’s mind, a phone conversation regarding masturbation is covered by [section] 288.2.” To determine whether defendant’s co mmunications constituted “matter” for purposes of former section 288.2, we begin w ith the statutory language and give words their usual, ordinary meaning. ( People v

. Canty (2004) 32 Cal.4th 1 266, 1276.) If the language is unambiguous, we follow its plain meaning. ( Ibid .) If it is ambiguous, we may determine “ ‘whether the literal meaning of a measure comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.’ ” ( Ibid ., quoting Lungren v

. Deukmejian (1988) 45 Cal.3d 7 27, 735.) “The words of the statute must be construed in co ntext, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.” ( Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) “[L]egislative history of the statute . . . maybe be considered in ascertaining the legislative intent.” ( Ibid. )Finally, we must avoid statutory interpretations that would lead to absurd consequences. ( People v. Jenkins (1995) 10 Cal.4th 234, 246.) When former section 288.2, subdivision (a) and section 313, subdivision (b) are read together, an ambiguity emerges. Former section 288.2, subdivision (a) appears to prohibit distribution of harmful matter by any live or recorded telephone message while section 313, subdivision (b) co uld be read to limit that pr ohibition to live or recorded telephone messages “distributed as part of a commercial tran saction.” To determine the intent of the Legislature, we turn to th e legislative history of the sections. In 1988, the Legislature amended section 313, subdivision (b) to add the following sentence: “ ‘Matter’ also incl udes live or recorded teleph one messages when transmitted, disseminated, or distributed as part of a co mmercial transaction.” (Stats. 1988, ch. 1392, § 5.) The Legislature passed this amendment in order to make businesses offering live or recorded pornography over the telephone liable for allo wing minors to access sexually explicit content. (County of Los Angeles, Letter to Chairman of Senate Judiciary Committee in Support of AB 35 68, June 23, 1988; Assem. 3d reading analysis of Assem. Bill No. 3568 (1987-1988 Reg. Sess.) as amende d Aug. 4, 1988, p. 2 [“According to the author, the purpose of this b ill is to update the state’s existing obscenity laws to reflect the new technology being used to promot e pornography through the use of live or prerecorded telephone messages.”].) In February 1989, Assembly Bill 1008 was introduced to amend section 313.2, a section that provides exemptions for parent s and guardians who di stribute harmful matter to their children. (Assem. Bill No. 1008 (1989-1990 Reg. Se ss.) as introduced Feb. 28, 1989.) The bill was later amended to leave section 313.2 unchanged and instead add a new section 288.2 to the Penal Code. (Stats . 1989, ch. 1316, § 1.) The purpose of the law was to prevent “[c]hild molesters who ar e parents and step-paren ts [from] shield[ing] themselves by claiming the pare ntal exemption” contained in section 313.2. (Assem. 3d reading analysis of Assem. Bill No. 1008 (1 989-1990 Reg. Sess.) as amended June 27,1989, p. 2.) Thus, the Legislature’s inte nt in enacting former section 288.2 was prohibiting individuals from distributing harmful matter to minors. In light of the clear legislative intent to criminalize the behavior of individuals rather than businesses, as we ll as the explicit inclusion of “live or recorded telephone messages” as a prohibited means of distri bution without any me ntion of commercial transactions, we find that former sec tion 288.2 applied to distribution of all live or recorded telephone messages regardless of whether they are part of a commercial transaction. An alternative interpretation w ould lead to absurd re sults because it would exempt noncommercial live or recorded telephone messages from prosecution under former section 288.2 even though that section was exp licitly intended to prohibit noncommercial distribution. Defendant ar gues that any ambiguity between former section 288.2 and section 313 must be resolved in his fa vor because the two possible interpretations are reasonable and “ ‘stand in relative equipoise . . . .’ ” (Quoting People
v. Jones (1988) 46 Cal.3d 585, 599.) However, we find the alternative interpretation exempting noncommercial live or recorded telephone me ssages from prosecution under former section 288.2 unreas onable, therefore making the Jones rule inapplicable. We therefore find that former section 288.2 prohibited the di stribution of harmful matter by all live or recorded te lephone messages, regardless of whether they were part of a commercial transaction. T hough the record before th e trial court was ambiguous regarding defendant’s method of communication with minor, “the power to . . . resolve any conflicts in the testimony, weigh the eviden ce and draw factual inferences, is vested in the trial court. On appeal all presumpti ons favor the exercise of that power, and the trial court’s findings on such matters, whether e xpress or implied, must be upheld if they are supported by substantial evidence.” ( People v. Lawler (1973) 9 Cal.3d 156, 160.) In light of this rule, we construe the trial c ourt’s finding that the communications occurred during a “phone conversation” as an imp lied finding that at least some of the masturbation communications occurred duri ng a live phone call and therefore camewithin the prohibition of former section 288.2, subdivisi on (a). For this reason, we need not determine whether a text message constitutes a “live or recorded te lephone message.” 2. Defendant’s Communication Co nstituted “Harmful Matter” Having determined that de fendant’s communication cons tituted “matter,” we turn to whether it was “harmful matter,” which sec tion 313, subdivision (a) defines as “matter, taken as a whole, which to the averag e person, applying contemporary statewide standards, appeals to the prurient interest, a nd is matter which, take n as a whole, depicts or describes in a patently offensive way se xual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scie ntific value for minors. ” (§ 313, subd. (a).) The court in People v. Dyke (2009) 172 Cal.App.4th 1377 ( Dyke ), analyzed the definition of harmful matter and determined that “the cu rrent statute essentially ‘tracks’ the threeprong test for obscenity articulated by the United States Supreme Court in Miller v. California (1973) 413 U.S. 15, 24 [37 L. Ed.2d 419, 93 S.Ct. 2607] ( Miller ).” ( Id. at pp. 1382-1383.) The Dyke court observed that the “har mful matter” definition’s only deviations from Miller ’s adult obscenity standard are that under section 313 “the relevant community standard by which the material is evaluated is ‘statewide’ [rather than community-based] and, in contex t, the work must lack serious literary, artistic, political, or scientific value for minors .” ( Dyke, supra, at p. 1383, original italics.) In People v. Powell (2011) 194 Cal.App.4th 1268 ( Powell ), discussed in greater detail post , this court cited the foregoing analysis from Dyke with approval in a case with facts similar to those in Dyke . ( Id. at p. 1290.) Despite agreeing that the definition of “harmful matter” generally tracks Miller ’s obscenity standard, the People argue that “ Dyke was wrongly decided and should not be followed.” The People quote extensively from Dyke ’s discussion of section 313’s legislative history, which noted that althou gh the purpose of amendm ents leading to the current version of section 313 was to broaden the definition of obscenity, the amendments “contracted the definition of harmfu l matter as applied in [section 288.2].”( Dyke, supra , 172 Cal.App.4th at p. 1383, fn. 4.) In light of this legislative intent, the People continue, we should “apply section 31 3 in a way that is unencumbered by the adult obscenity standard of the [ Miller ] test.” As noted above, to determ ine the meaning of a statute, we give the words in a statute their usual, ordinary meaning. ( Canty, supra, 32 Cal.4th at p. 1276.) If the language is unambiguous, we follow its plain meaning. ( Ibid .) Here, we find nothing ambiguous about the definition of “harmful matter” in section 313, subdivision (a), and will apply the section’s modified Miller test to the facts found by the trial court to determine whether any rational trier of fa ct could find defenda nt’s communications “patently offensive” beyond a reasona ble doubt. (§ 313, subd. (a); Alvarez, supra, 14 Cal.4th at p. 224.) A brief survey of cases involving secti on 288.2 convictions is instructive. In Dyke, for example, while flipping through television channels, the defendant showed the victim “a naked female dancing, and a ma n and woman, from the waist up, ‘having sex.’ ” ( Dyke, supra, 173 Cal.App.4th at p. 1384.) Th e court found that, without more, those facts were insufficient to meet the definition of harmful matter. ( Id. at pp. 1384- 1385.) The Dyke court reviewed judicial interpretati ons of obscenity, noting that “ ‘sex and obscenity are not synonymous.’ ” ( Dyke, supra, 173 Cal.App.4th at p. 1385, quoting Roth v. United States (1957) 354 U.S. 476, 487.) The cour t explained that “portrayals of sexual activity are not ipso facto obscene [cita tion], even if they may be characterized as ‘dismally unpleasant, uncouth, and tawdry’ ( Manual Enterprises v. Day (1962) 370 U.S. 478, 490 [8 L.Ed.2d 639, 82 S.Ct. 1 432] (lead opn. of Harlan, J.)).” ( Dyke, supra, at p. 1385.) The court concluded that “[w]ithout more, neither we nor the jury are permitted to presume that such content is patently offensive to the aver age adult, applying statewide community standards.” ( Ibid. )We described an example of patently offensive conduct in People v. Jensen (2003) 114 Cal.App.4th 224 ( Jensen ). In Jensen , the defendant engaged in numerous conversations via instant messa ge with police officers posi ng as minors during which he discussed sexual topics in graphic detail, including extended discussions of how the defendant hoped to engage in sexual acts with the supposed minors. ( Id. at pp. 227-236.) The defendant also transm itted naked photogra phs, including one showing three individuals engaged in sexual acts with one another. ( Id. at pp. 227-228.) Though the defendant’s conviction was revers ed due to an errone ous jury instruction related to one of the intent elements of the offense, ( id. at pp. 239-241), Jensen provides an example of the type of conduct section 288.2 is meant to criminalize. A closer case was presented by the facts in Powell. The victim, who was 10 years old or younger, testified that the defendant showed her “ ‘pornographic movies’ ” before sexually assaulting her, and other evidence indicated that the assaults were “always preceded by the showing of pornographic movies.” ( Powell, supra, 194 Cal.App.4th at pp. 1285-1286.) The court expressed concer n about whether that constituted “harmful matter” but ultimately conclu ded there was “a minimum of evidence to sustain the conviction” because the victim described seei ng “[p]enises, breasts, and vaginas featured in lewd displays as the act ors ‘did it,’ i.e., engaged in sexual activity and not just kissing.” ( Id. at p. 1295.) Construing the evidence here in the light most favorable to the judgment, ( Lindberg, supra, 45 Cal.4th at p. 27), defendan t communicated with Doe about masturbation. Doe testified that she and de fendant talked about masturbation and that defendant talked about his “penis” being “exc ited.” These were the only specific details Doe could remember regarding their communica tions. Doe stated she did not remember whether defendant ever told her anything about wanting to have sex with her and that he never talked to her “about anything specific that he wanted [Doe] to do . . . .” There wasalso no evidence that defendant transmitted any pictures or videos to Doe or that defendant forced Doe to view any material of that nature. Though the evid ence presented by the prosecutio n is far from overwhelming, we conclude that a reasonable trie r of fact could have found that it met the definition of “harmful matter.” (§ 313, subd. (a).) An “average person, a pplying contemporary statewide standards” would find that a de scription of a man’s penis being excited “appeals to the prurient interest . . . .” ( Ibid. ) There was no evidence to suggest that the description had any “literary, artistic, political, or scien tific value for minors.” ( Ibid. ) The final element—whether the communication “d escribe[d] in a patently offensive way sexual conduct”—presents a more difficult question. ( Ibid. ) Though “ ‘sex and obscenity are not synonymous,’ ” ( Dyke, supra, 173 Cal.App.4th at p. 1385, quoting Roth, supra, 354 U.S. at p. 487), we find that th e prosecution presented a minimum of evidence to sustain the conviction. 3. Defendant Had Specific In tent to Seduce Doe Former section 288.2 proh ibited the knowing distributio n of harmful matter “with the intent or for the purpose of seduci ng a minor . . . .” As we noted in Jensen , “the ‘seducing’ intent element of the offense requ ires that the perpetra tor intend to entice the minor to engage in a sexual act involving ph ysical contact between the perpetrator and the minor.” ( Jensen, supra, 114 Cal.App.4th at pp. 239-24 0.) Defendant claims the prosecution did not provide substantial eviden ce of defendant’s intent to seduce Doe at the time of the harmful communications. We disagree. As noted by the trial court, the pr osecution provided evidence that defendant communicated harmful matter to Doe with knowledge that she was a minor and that he subsequently attempted to meet her in pers on. The prosecution also provided text messages sent by defendant to Doe on the day of his arrest. The earliest of those text messages greeted Doe with “[h]ey babe.” De fendant then asked Doe for her address “so that we can hang out fooling around there.” ( Sic. ) Later, he asked her “[w]hat cloth uwear?” ( Sic. ) Though these text messages occurred after the masturbation conversation, a rational trier of fact could have concl uded that by “fooling around” defendant meant sexual contact, that his interest in “fooling ar ound” with Doe predated the text messages, and that defendant thus had a specific intent to seduce Doe when he had the masturbation conversation with her. In su m, there was sufficient evid ence to support defendant’s felony conviction under former section 288.2. C. S UFFICIENCY OF THE E VIDENCE TO S UPPORT THE M ISDEMEANOR C ONVICTION Defendant claims there was insufficient evidence to show that he violated section 647.6, subdivision (a)(1), which punish es “[e]very person who annoys or molests any child under 18 years of age . . . .” The Supreme Court discussed this offense in detail in People v. Lopez (1998) 19 Cal.4th 282. In Lopez , the court explained that an indi vidual can violate section 647.6, subdivision (a)(1) without touching the victim. ( Id. at p. 289.) The subdivision requires “(1) conduct a ‘ “normal person would unhesitatingly be irritated by” ’ [citations], and (2) conduct ‘ “motivated by an unnatural or abnormal sexual interest” ’ in the victim [citations].” ( Ibid. ) The court continued that “the words ‘annoy’ and ‘molest’ . . . are synonymous and generally refer to conduct designed to disturb, irritate, offend, injure, or at least tend to injure, another person.” ( Ibid. ) Finally, “to determine whether the defendant’s conduct would unhesitatingly irrita te or disturb a normal person, we employ

an objective test not dependent on whether the child was in fact irritated or disturbed.” ( Id. at p. 290.) Applying these concepts to defendant’s conduct, defendant discussed masturbation (in terms of “jack[ing] up” or, at the very le ast, talking about his penis being “excited”) with an individual he knew wa s under 18 years old. A rational trier of fact could find that the discussion of masturbation in the context of “phone sex” by a 30-year-old adult with someone who previously told him she was between 12 and 15 years old constitutedirritating conduct “motivated by an unnatural or abnormal sexual interest” in the minor. ( In re Gladys R. (1970) 1 Cal.3d 855, 867.) D. C ONSTITUTIONALITY OF F ELONY P ROBATION C ONDITIONS Defendant claims that several of the felony probation conditions imposed by the trial court are unconstitutional because they lack an explicit knowledge requirement. A trial court has broad discre tion to impose “reasonable cond itions . . . [that] it may determine are fitting and proper to the end that justice may be done . . . .” (§ 1203.1, subd. (j).) That wide discreti on is limited by the state and federal constitutions. Claims that a probation condition is unconstitutionally vague or overbroad ca n be raised even when, as here, defendant did not object in th e trial court so long as the claim presents a pure question of law that can be resolved with out reference to the se ntencing record. ( In re Sheena K. (2007) 40 Cal.4th 875, 887-889 ( Sheena K. ).) Vagueness challenges are based on “the due process concept of ‘fair warning.’ [Citation.]” ( Sheena K., supra, 40 Cal.4th at p. 890.) A cond ition is unconstitutionally vague if it “either forbids or requires the doing of an act in terms so vague that men of common intelligence must neces sarily guess at its meaning and differ as to its application . . . .” ( Connally v. Gen. Const. Co. (1926) 269 U.S. 385, 391.) Alternatively stated, the condition “ ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated’ . . . . [Citation.]” ( Sheena K., at p. 890.) Unconstitutional overbreadth occurs wh en a probation condition “substantially limits a person’s rights and those limitations are not closely tailored to the purpose of the condition.” ( People v. Harrison (2005) 134 Cal.App.4th 637, 641.) Thus, “[a] probation condition that imposes limitations on a person’ s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” ( Sheena K. , supra, 40 Cal.4th at p. 890.)When analyzing claims that probation conditions ar e unconstitutional, we are mindful that probation violations must be w illful to justify revocation of probation. ( People v. Rodriguez (2013) 222 Cal.App.4th 578, 594 ( Rodriguez ); People v. Cervantes (2009) 175 Cal.App.4th 291, 295 ( Cervantes ); People v. Galvan (2007) 155 Cal.App.4th 978, 982; § 1203.2, subd. (a).) “A probation co ndition should be given ‘the meaning that would appear to a r easonable, objective reader.’ [Citation.]” ( People v. Olguin (2008) 45 Cal.4th 375, 382.) Finally , if modification of a prob ation condition will cure a constitutional defect, we may modi fy the condition on appeal. ( Sheena K., supra , 40 Cal.4th at p. 892.) 1. Condition Prohibiting “Contact” with Doe Condition number six as proposed in the probation report states: “The defendant shall have no contact with the victim(s).” At the sentencing hearing, the court specified that defendant was “not to have any contact w ith the individual that we have referred to as A. Doe . . . .” Defendant argues he c ould accidentally violate this condition if he found himself in the same public place as Doe. We find it unlikely that a probation officer or a court would deem the passive conduct described by defendant a willful violation of the no c ontact condition. ( Rodriguez, supra, 222 Cal.App.4th at p. 594.) However, in the interest of specificity we will modify this condition to read: “The defendant shall not initiate contact with the victim A. Doe.” 2. Condition Requiring Defendant to Remain 100 Yards from Doe Condition number 13 as propos ed in the probation report states: “The defendant shall remain 100 yards from vi ctim.” The court expressed the condition at the sentencing hearing as follows: “You are to remain 100 ya rds from the victim A. Doe.” Like the no contact condition, defendant argues this condition is defective because he could “inadvertently violate” it by accidenta lly running into Do e in public. As this court stated recently, “[n]o r easonable law enforcement officer or judge can expect probationers to know wher e their victims are at all times.” ( Rodriguez, supra,222 Cal.App.4th 578, 594.) Like the condition at issue in Rodriguez , defendant’s condition “requires defendant to remove himself ([‘remain 100 yards from the victim’]) when he knows or learns of a victim’s presence.” ( Rodriguez , at 594.) That being said, in view of the mobile nature of victims, in contrast to a fi xed location like a residence, the addition of an explicit know ledge requirement is warranted. We therefore modify condition number 13 as follo ws: “The defendant sha ll remain 100 yards from any location where he knows the victim A. Doe is present.” 3. Conditions Regarding Computer Usage Condition number 16 as propos ed in the probation report states: “The defendant shall not enter any social netw orking sites, nor post any ads, either electronic or written, unless approved by the probati on officer.” As amended with a handwritten interlineation, condition number 18 states: “The defendant shall not access th e Internet or any other online service through use of a computer, or other electronic device at any location (including place of employment) other than his home without prior approval of the probation officer. The defendant shall not possess or use any data encryption technique program.” Finally, condition number 19, as imposed, states: “The defendant shall not clean or delete Internet browsing activity a nd must keep a minimum of four weeks of history.” The trial court’s oral pronouncemen t of the conditions at the sentencing hearing did not materially depart from the recommenda tions in the probation report. Defendant contends that by failing to include an exp licit knowledge requirement, these conditions are unconstitutionally vague and overbroad becau se they could be violated by “inadvertently hitting the wrong keys on a com puter” or “a wrong icon on an electronic device.” “A probation condition that imposes limitations on a pe rson’s constitutional rights must closely tailor those limitations to the purpose of the c ondition to a void being invalidated as unconstitu tionally overbroad.” ( Sheena K. , supra, 40 Cal.4th at p. 890.) In his brief, defendant does not identify a ny constitutional right that is limited by theprobation conditions restricting computer us e. Even if defendant had identified a constitutional right and showed that the proba tion conditions “substantially limit[ed]” that right, ( Harrison, supra, 134 Cal.App.4th at p. 641), we find that any limitation of his constitutional rights is closely tailored to the purpose of the co nditions. Defendant initially met Doe on th e Myspace online social network. By limiting defendant’s access to the Internet, the conditi ons serve the purpose of ke eping defendant “away from situations likely to lead to criminal conduct.” ( Rodriguez, supra, 222 Cal.App.4th at p. 590.) Further, like the inte rnet access condition another pane l of this court approved in People v. Pirali (2013) 217 Cal.App.4th 1341, the co nditions here do not amount to a “blanket prohibition” on Internet access because they “grant[] defendant the ability to access the Internet on his com puter and other elect ronic devices so long as he obtains prior permission from his [probation] officer.” ( Id. at pp. 1349-1350.) As for whether the conditions are vague, inadvertently hitting the wrong keys on a computer or accidentally tapping the wrong icon on an electroni c device would not constitute willful conduct sufficient to revoke probation. Instead, that inadvertent access is more akin to conduct outside the control of a defendant that other courts have deemed insufficient to constitute a willful probation violation, such as arriving 22 minutes late to a court hearing because of “last minut e unforeseen circumstance[s],” ( People v. Zaring (1992) 8 Cal.App.4th 362, 379), or failing to attend a court hearing due to detention by federal immigration authorities. ( Cervantes, supra, 175 Cal.App.4th at p. 295; see also Galvan, supra, 155 Cal.App.4th at pp. 983-984 [reve rsing trial court order revoking probation when defendant’s failure to re port to probation officer was due to his immediate deportation u pon release from jail].) We are nonetheless mindful that the Internet now pervad es daily life and “that data encryption is ubiquitous in modern computer technology . . . .” ( People v. Friday (2014) 225 Cal.App.4th 8, 43.) Because the add ition of explicit knowledge elements will protect defendant from truly inadvertent acts while s till serving the purpose of ensuring that hisprobation officer can track defendant’s Intern et activity as necessary, we will modify the conditions as follows: Conditi on number 16: “The defendant shall not knowingly enter any social networking sites, nor post any ads, either elect ronic or written, unless approved by the probation officer;” Condition number 18: “The defendant shall not knowingly access the Internet or any othe r on-line service th rough use of a computer, or other electronic device at any location (including place of employment) other than his home without prior approval of the probation o fficer. The defendant shall not knowingly possess or use any data encr yption technique program;” a nd Condition number 19: “The defendant shall not knowingly cl ean or delete Internet browsing activity and must keep a minimum of four weeks of history.”
E. S ECTION 654 Defendant contends that the trial court imposed concurrent sentences for the felony count and the misdemeanor count, wh ich violated secti on 654 by punishing defendant’s one act under more than one criminal provisi on. The People respond that defendant’s section 654 claim is unripe beca use the trial court suspended imposition of sentence when it placed defendan t on felony probation. The probation report recommended su spending imposition of sentence and granting formal probation for three years. At the March 2012 sentencing hearing, the court stated that “the judgment of the [c] ourt then is that imposition of sentence is suspended and formal probation will be granted . . . .” The court then ambiguously stated that “[a] county jail sentence is going to be imposed for a total of 848 days.” Later, the court indicated that “[t]he actual sentence th e [c]ourt did impose, and if it didn’t, will impose, [is] a total of 848 days. That will be the sentence.” The sentencing minute order does not provide greater clarity. The box next to the phrase “Imposition of sentence suspended for probation period” is checked but a sentence of 848 days (which is “Deemed Served”) is listed as applicable to both th e felony conviction and the misdemeanor conviction. Importantly, howeve r, neither the sentencing minute order northe court’s statements at the sentencing hearing suggest an intention to deny probation on either count. From the foregoing, we conclude that the trial court suspended imposition of sentence on both counts and that the county jail “sentence” referred to was intended to be a condition of probation. 5 Because the trial court susp ended imposition of sentence on both counts, defendant’s section 654 argument is unripe. (See People v. Wittig (1984) 158 Cal.App.3d 124, 137 [finding “no [§ 654] double punishment issue” when imposition of sentence was suspended].) III. DISPOSITION The judgment is modified to reflect th e following probation conditions. Condition number 6 is modified to read: “The defendant shall not initiate contact with the victim A. Doe.” Condition number 13 is modified to read: “The defe ndant shall remain 100 yards from any location where he knows the victim A. Doe is present.” Condition number 16 is modified to read: “The defendant shall not knowingly enter any social networking sites, nor post any ads, either electronic or written, unless approved by the probation officer.” Condition number 18 is modified to read: “The defendant shall not knowingly access the Internet or any other on-line service through use of a computer, or other electronic device at any location (including pl ace of employment) other than his home without prior approval of the probation offi cer. The defendant shall not knowingly possess or use any data encryption technique program.” Condi tion number 19 is modified to read: “The defendant shall not knowi ngly clean or delete

5 Given the jail time imposed and custo dy credits awarded, we recognize that defendant appears to have no further custody exposure on the misdemeanor count. (§ 647.6, subd. (a)(1) [maximum pe nalty for conviction is 365 days].)Internet browsing activity and must keep a mi nimum of four weeks of history.” As so modified, the judgment is affirmed.

__________ _______________ ___________ Grover, J.

WE CONCUR:

_____________ _______________ Bamattre-Manoukian, Acting P.J.

_____________ _______________ Márquez, J.