1

Filed 12/7/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY CARABAJAL,

Defendant and Appellant.

 A162212

 (Solano County

 Super. Ct. No. FCR343307-A)

A jury convicted defendant Johnny Carabajal of three counts of 

contacting or communicating with a minor with the intent to commit a sex 

offense. (Pen. Code, § 288.3, subd. (a).)1 On appeal, defendant contends the 

trial court should have granted his motion for a new trial because one of the 

sitting jurors—Juror No. 5—was biased since she had applied for 

employment with the district attorney’s office that was prosecuting him. 

Defendant makes additional contentions that section 288.3 is 

unconstitutionally vague and improperly restricts free speech; the evidence 

was insufficient to support the convictions; and the court gave conflicting jury 

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this 

opinion is certified for publication with the exception of parts A and B of the 

Factual and Procedural Background, and parts B and C of the Discussion.

1 Further unspecified section references are to the Penal Code.
2

instructions that improperly removed the mental state element of section 

288.3 from the jury’s determination. 

In the published portion of this opinion, we conclude the trial court did 

not abuse its discretion in denying a new trial. Juror No. 5’s testimony at the 

posttrial evidentiary hearing provided substantial evidence supporting the 

court’s finding of no actual bias, and the instant matter does not present an 

extraordinary case in which bias should be implied as a matter of law. In the 

unpublished portion of this opinion, we reject defendant’s remaining claims. 

The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The victims in this case were friends of defendant’s two daughters, S.C. 

and A.C.

2 E.M. (the victim in counts A and B), was a friend of A.C., while

M.J. (the victim in count C) was a longtime friend of older daughter, S.C.

A. Offenses Involving M.J.

In January 2016, defendant (then 54 years old) picked up M.J. (then 15

years old) from school and took her on a preplanned shopping trip. He had 

been giving M.J. car rides that week because M.J.’s mother was having car 

trouble. Earlier in the day, defendant sent M.J. a text message letting her 

know that S.C. had an appointment and would not be joining them. When 

defendant came to pick up M.J., his two sons were in the car, but defendant 

eventually dropped them off at home. Defendant and M.J. then went to a 

store where defendant bought M.J. a pair of shoes. 

During the drive home, defendant made “nasty remarks” to M.J. He 

told her that he had “had sex with about 20 virgins,” that she had “a nice 

ass,” and that he had once seen her in a swimsuit and “wanted to fuck the 

2 Pursuant to California Rules of Court, rule 8.90, governing “Privacy in 

opinions,” we anonymize the names of the victim and witnesses.
3

shit out of” her. He also told M.J. that if she “were to do stuff” with him, he 

would help her get a car, her driver’s license, and a birthmark removed, “just 

trying to bribe [her] with stuff.” Defendant told M.J. that he could pick her 

up from school and that they could “do things” because they would have time 

alone together. Feeling uncomfortable from defendant’s remarks, M.J. did 

not say anything back to him other than falsely telling him that her mother 

was calling for her to come home. Defendant told M.J. not to tell her mother, 

S.C., or anyone else about the things he had said, and to send him a text 

message later that night and “tell him what [she thought] about his ideas.” 

M.J. told S.C. about the incident by text message later that evening.

3 

M.J. also told her mother the next day because M.J. was not comfortable with 

defendant taking her to school. When S.C. confronted defendant, he told S.C. 

that “[M.J.] took it the wrong way, and that he was very blunt with his 

words.” Defendant later sent a text message to M.J. in which he apologized 

and said he was just trying to warn her to stay away from “broke 

motherfucker[s],” but M.J. and defendant had never discussed such a topic. 

M.J.’s mother called the police. 

B. Offenses Involving E.M.

In 2017, 15-year-old E.M. ran away from home and moved into a home 

with defendant’s younger daughter, A.C. The home was owned by 

defendant’s friend, and defendant lived nearby. 

The first time they met, defendant told E.M. that she “reminded him of 

his ex-wife and that she was just so beautiful,” which E.M. took as 

compliments. About a week later, E.M. was alone with defendant while he 

3 At trial, S.C. was asked whether M.J. said defendant “wanted to have 

intercourse or anything like that.” S.C. testified, “Yes,” but that M.J. did not 

name a particular act, just “[t]hat he wanted to do something.” 
4

drove her home from school. Defendant again said E.M. reminded him of his 

ex-wife, who “was sexy,” and he also said E.M. was sexy. The remarks made 

E.M. feel uncomfortable, and she “knew it wasn’t just a compliment.” 

Defendant then asked E.M. that if she wanted to “do stuff” with him in the 

back seat of the car for $50 per week. E.M. did not think defendant was 

referring to sex, but “other things,” such as a “hand job” or “that type of 

thing.” E.M. “told him no” because she had sufficient financial support and 

“did not need [the] money.” 

About a month later, E.M. was “stuck at home with nothing to do” 

while A.C. was out with her boyfriend, so E.M. went with defendant to a tire 

shop. During the drive, E.M. saw that defendant had money and jokingly 

asked for some. In response, defendant said something like, “You know how 

you can make money.” E.M. took the comment as a reference to his previous 

proposal to make $50 a week by doing “stuff” with him in the car. 

On a different occasion, defendant made reference to the “pool room”—a 

room on his property with a bed in it where E.M. and A.C. would occasionally 

hang out. Defendant told E.M. that if the light was on, it meant “either he 

had a lady in there, or, like, [E.M.] can go in there and, like, join him on what 

he was doing, or whatever.” E.M. thought he was hinting that he wanted to 

have “some type of sexual encounters with [her]. Like, not necessarily sex.” 

E.M. never went to the pool room alone or at night. 

Defendant warned E.M. that if she told anyone about his remarks, he 

“would completely disown [her] like he did his other daughter.” E.M. did not 

immediately tell the police about defendant’s comments because he was 

providing her “the only house” she had and she had nowhere else to live. 

However, E.M. eventually told defendant’s daughters about his comments. 
5

S.C. angrily confronted defendant, who accused E.M. of being a liar. S.C. 

then told her grandmother, Wendy N. 

When Wendy N. confronted defendant about whether he had offered 

E.M. $50 to have sex with him, he “just kind of laughed it off and said . . . he 

just wanted to see if she would do it[,] . . . to see if she was a whore or not and 

see if . . . she could earn her keep somehow because he said he was paying for 

her to live there.”4 Wendy N. further testified that defendant said “it would 

be [E.M.’s] way of paying him back that she was living there free.” When 

Wendy N. asked defendant what he would have done if E.M. agreed, 

defendant “laughed it off. He never answered [her] about that.” Wendy N. 

did not call the police or social services, but she urged A.C. to come live with 

her and recommended to E.M. that she return to her mother’s house. 

C. Charges

The Solano County District Attorney’s Office charged defendant with 

five counts: forcible lewd act upon a child, A.C. (§ 288, subd. (b)(1), count 

one); attempted lewd act upon a child, A.C. (§§ 664/288, subd. (a), count two); 

two counts of contacting or communicating with a minor, E.M., with the 

intent to commit a sex offense (§ 288.3, subd. (a), counts three and four); and 

contacting or communicating with a minor, M.J., with the intent to commit a 

sex offense (§ 288.3, subd. (a), count five).5

4 At trial, Wendy N. initially testified that defendant “said” he was 

joking when he made the $50 offer to E.M. Later, Wendy N. attempted to 

clarify that “he didn’t say he was joking with her,” but rather, “what he told 

me was that he—yeah, he did say that to her. And I said, why would you say 

such a thing to her? And he said he wanted to test her to see if she would 

really do it because he was supporting her, in his mind, by letting her live 

there because she had ran [sic] away from home.” 

5 This appeal concerns only the counts relating to E.M. and M.J.
6

The trial court granted defendant’s motion to sever counts one and two. 

Counts three, four, and five (styled counts A, B, and C) then proceeded to 

trial. 

D. Trial, Motion for New Trial, and Sentencing

Trial began with jury selection in January 2020. The jury heard 

testimony on January 6, 8, and 9, and returned verdicts on January 9

convicting defendant of counts A, B, and C. 

Defendant thereafter filed a motion for new trial due to juror bias,

indicating the prosecutor recently informed him that during the trial, a 

sitting juror—Juror No. 5—had applied for employment with the Solano 

County District Attorney’s Office and was subsequently interviewed and 

hired for the position. Following an evidentiary hearing, the trial court 

denied the motion for new trial, finding there was no actual or implied bias. 

Defendant was eventually sentenced to prison for two years and two 

months. This timely appeal followed. 

DISCUSSION

A. Motion for New Trial for Juror Bias

Defendant argues the trial court erred in denying his motion for a new 

trial because he demonstrated a substantial likelihood of Juror No. 5’s bias 

based on the juror’s application for employment with the very office that was 

prosecuting him. We find no abuse of discretion by the trial court.

1. Additional Background

The prosecutor informed defendant on June 30, 2020, that Juror No. 5 

had applied for employment as a victim-witness advocate with the Solano 

County District Attorney’s Office on January 8, 2020 (the second-to-last day 

of trial), and that she was subsequently interviewed and hired by the district 

attorney’s office in June 2020. 
7

In July 2020, defendant filed his motion for new trial, and in 

September 2020, the trial court held an initial hearing on the motion. The 

court found that the Solano County District Attorney’s Office was not aware 

of Juror No. 5’s employment application until sometime after March 4, 2020, 

and in late June 2020, the prosecutor notified defense counsel that the juror 

had been hired. Based on the timeline of events, the court found that there 

was “an appearance of some sort of bias,” but the court was not prepared “to 

say it is presumed or implied.” The court decided to hold an evidentiary 

hearing to question Juror No. 5. 

The hearing was held in November 2020. Juror No. 5 testified that she 

began working with the Solano County District Attorney’s Office as a victimwitness advocate in June 2020. In this position, she supported victims 

(including victims of sexual offenses) and witnesses during the court process. 

Prior to this job, Juror No. 5 worked for Solano County Mental Health as a 

mental health specialist, a position she had held since April 2017. Before 

that, she had worked as a family advocate with an agency that was 

contracted by Solano County. 

Juror No. 5 had been actively looking for a new job since December 

2019 and checked the Solano County website for job postings every two or 

three weeks. In December 2019, she applied for two positions with Solano 

County (not with the district attorney’s office). During defendant’s trial, she 

did not look at the Solano County job website except on the evening of 

January 8, 2020, which was when she first saw the posting for the victim 

witness advocate position. No one told her to look at the Solano County job 

website on that date. She saw that the closing date for the position was 

January 13, 2020, so she applied “immediately” because she “was really 

looking for a different job. So when I saw something where I thought I had 
8

opportunity, I . . . would apply for it.” She testified that her decision was not 

influenced by what she heard during the trial, and she “actually thought a 

victim witness advocate maybe would work at the [Family] Justice Center. I 

did not really put the two together and thought I would be in the office at the 

DA.” She applied for ten other jobs besides the position with the district 

attorney’s office. 

When she came to court on January 9, 2020 (the last day of trial), Juror 

No. 5 did not tell the other jurors that she had applied for the job. Nor did 

she tell the trial court because she did not think she would get the position or 

hear back immediately. Asked if her seeking employment with the 

prosecuting agency in the case affected her ability to be fair and impartial as 

she listened to the testimony and jury instructions and participated in 

deliberations, Juror No. 5 testified, “No.” 

Juror No. 5 did not hear back from the Solano County District 

Attorney’s Office until January 31, 2020. After she began work at the district 

attorney’s office in June 2020, she voluntarily told her supervisor (as well as 

the prosecutor in defendant’s trial) in or around the first week of her 

employment that she had served on the jury in defendant’s case. The reason 

she conveyed this information to her supervisor was because she was “asked 

by [her] supervisor if [she] had experience in the court or sitting in court or 

any kind of experience, and [she] honestly didn’t” other than sitting as a 

juror. She did not believe that juror experience would have “been a plus” for 

the position she was seeking because “there are people who had a lot more 

experience in the court system than [she] had.” Her service on the jury in 

question was her first experience with the criminal justice system. 

Juror No. 5 further testified that she did not think her application 

created a conflict of interest with her service as a juror in defendant’s trial
9

because “[w]hen [she] applied, [she] did not even think [she] would hear back 

or [she] would go further into the interview process.” She did not believe that 

seeking the position affected her ability to be fair and impartial in 

defendant’s trial, or that returning a guilty verdict would have helped her get 

the job or benefitted her employment in any way. She further testified that 

her decision to apply for the job did not influence her decision making during 

the trial. When she voted to convict defendant, she did not do so in the hopes 

it would help her get the job. She would have been comfortable telling her 

supervisor that she sat on the jury even if she had voted not guilty. 

The trial court denied the motion for a new trial. The court explained 

that it heard Juror No. 5’s testimony and reviewed the voir dire transcripts of 

Juror No. 5’s questioning, and her voir dire answers were consistent with her 

testimony at the hearing.6 The court expressed that its initial concerns were 

why and how Juror No. 5 applied for the position, but the court found, based 

on its observations of Juror No. 5’s testimony and “her demeanor in 

testifying, thoughtful answers that she gave to the questions that were posed 

by both counsel and by the Court,” that Juror No. 5 applied for the position at 

the “tail-end” of the trial “because she had been looking for a job for some 

time, a change of scenery, if you will,” and “that’s when she looked at the job 

website.” The court further found that Juror No. 5 did not appear to be 

“influenced in any way by applying for employment with the [d]istrict 

[a]ttorney’s [o]ffice one way or another” and that she apparently “did not 

believe that she would get any benefit by applying because of the fact that 

she’s serving on a jury,” as “she didn’t mention to anyone in the [d]istrict 

[a]ttorney’s [o]ffice that she served on a jury until she was asked by her 

6 As the trial court found, Juror No. 5 had not been asked during voir 

dire if she was looking for another job. 
10

supervisor whether she had any experience in the court process.” The court 

concluded that Juror No. 5’s conduct “does not in and of itself say that there 

was bias or implied bias of any sort. The witness testified that did not play 

any role in her decision-making process when she was deliberating.” 

Accordingly, the court found no “implied or actual bias” in violation of 

defendant’s due process rights. 

2. Analysis

A criminal defendant may move for a new trial on specified grounds, 

including juror “misconduct by which a fair and due consideration of the case 

has been prevented.” (§ 1181, item 3.) “The trial court has broad discretion 

in ruling on a new trial motion, and its decision will be disturbed only for 

clear abuse of that discretion.” (People v. Iraheta (2014) 227 Cal.App.4th 611, 

619.)

“Each criminal defendant is entitled to an impartial jury. [Citations.] 

That entitlement imposes upon each juror a duty to maintain impartiality 

throughout the trial. [Citation.] The loss of impartiality requires dismissal 

of the juror. [Citation.] . . . . A jury must be ‘capable and willing to decide the 

case solely on the evidence before it,’ lest a due process violation occur.” 

(People v. Mora and Rangel (2018) 5 Cal.5th 442, 482–483 (Mora).) “If a 

juror’s ability to perform his or her duty is called into question, a court is 

expected to hold a hearing; failure to conduct a sufficient hearing constitutes 

an abuse of discretion. [Citations.] Following a hearing, the trial court may 

discharge a juror if it finds that the juror is unable to perform his or her 

duty.” (Id. at p. 483.)

“Precisely what constitutes ‘ “actual bias” ’ of a juror may vary 

somewhat depending on the particular circumstances of the case. [Citation.] 

The United States Supreme Court has explained that bias, or impartiality, is 
11

a state of mind rather than some specific course of conduct. [Citation.] In 

assessing whether that state of mind is present or not, the law makes room 

for a juror’s humanity, understanding that a juror may not ‘be totally 

ignorant of the facts and issues involved.’ [Citations.] If a juror is able to set 

aside impressions and opinions to render a verdict based on the evidence 

presented in court, the juror is impartial. [Citation.] If, on the other hand, 

the juror forms an opinion so strong that the court is of the belief it cannot be 

set aside even if the juror does not express it, the juror will be adjudged 

biased. [Citations.] The evaluation of bias presents a mixed question of law 

and fact on appeal, the resolution of which obliges this court to review the 

trial court’s examination and the juror’s responses.” (Mora, supra, 5 Cal.5th 

at p. 485.)

In Smith v. Phillips (1982) 455 U.S. 209 (Smith), a majority of the 

United States Supreme Court found no violation of due process on very 

similar—if not more serious—facts than those presented here. The defendant 

in Smith moved to vacate his murder conviction on the ground that during 

the trial, a juror submitted an application for a position with the district 

attorney’s office as a major felony investigator. The prosecuting attorneys 

were informed one week before the end of trial that the juror had applied, but 

they did not disclose this information to the court and defense counsel until 

after the trial was concluded. (Id. at p. 212.) On review from denial of a 

habeas corpus petition, the majority in Smith held the defendant was not 

denied due process of law either by the juror’s conduct or by the prosecutor’s 

failure to disclose the application. In so holding, the court explained that due 

process entitles the defendant to “a jury capable and willing to decide the 

case solely on the evidence before it” but “does not require a new trial every 

time a juror has been placed in a potentially compromising situation.” (Id. at 
12

p. 217.) “[T]he remedy for allegations of juror partiality is a hearing in which 

the defendant has the opportunity to prove actual bias.” (Id. at p. 215.) 

Smith relied, in part, on Dennis v. United States (1950) 339 U.S. 162

(Dennis), in which the defendant was convicted of criminal contempt for 

failing to appear before the Committee on Un-American Activities of the 

House of Representatives. The defendant argued that the jury was 

inherently biased because it was composed primarily of federal government 

employees who were subject to discharge upon reasonable grounds of

disloyalty to the government. (Dennis, at pp. 164–165.) As Smith observed, 

Dennis rejected the claim that implied bias based on the jurors’ relationship 

to the government was sufficient for disqualification. Instead,

“ ‘[p]reservation of the opportunity to prove actual bias is a guarantee of a 

defendant’s right to an impartial jury.’ ” (Smith, supra, 455 U.S. at p. 216, 

citing Dennis, at pp. 171–172.)

The trial court here properly afforded defendant due process of law by 

holding an evidentiary hearing that gave defendant the opportunity to prove 

actual bias on the part of Juror No. 5. (Smith, supra, 455 U.S. at p. 215; 

Dennis, 339 U.S. at pp. 171–172.) During that hearing, the trial court and 

defendant both explored whether the juror’s application for employment with 

the prosecutor’s office affected her ability to impartially decide the case based 

on the evidence before her. The juror’s testimony provided substantial 

evidence supporting the trial court’s finding of no bias. (People v. Harris

(2008) 43 Cal.4th 1269, 1304–1305 [deferring to court’s credibility 

determination based on juror’s attestations of ability to deliberate 

impartially].)

Defendant argues nonetheless that a posttrial hearing is not always 

sufficient to assess juror bias. Borrowing language from Justice Marshall’s 
13

dissenting opinion in Smith, defendant contends that “[g]iven the human 

propensity for self-justification,” a court is “unlikely to learn from a juror’s 

own testimony after the verdict whether she was, in fact, impartial.” 

Defendant also cites from Justice O’Connor’s concurring opinion in Smith 

that “there are some extreme situations that would justify a finding of 

implied bias,” such as “a revelation that the juror is an actual employee of the 

prosecuting agency.” (Smith, supra, 455 U.S. at p. 222, O’Connor, J., 

concurring.)

We assume for the sake of argument that bias may be implied in 

appropriate circumstances. (See Tinsley v. Borg (9th Cir. 1990) 895 F.2d 520, 

527 [noting the Supreme Court has never explicitly adopted or rejected the 

implied bias doctrine].) However, the instant matter does not present the 

kind of extreme or extraordinary circumstance that Justice O’Connor 

described in her concurring opinion, as Juror No. 5 was not “an actual

employee of the prosecuting agency” at any time during the trial. (Smith, 

supra, 455 U.S. at p. 222, italics added, O’Connor, J., concurring.) Nor do 

defendant’s other authorities addressing implied bias support a reversal on 

the facts here. (E.g., United States v. Allsup (9th Cir. 1977) 566 F.2d 68, 71–

72 [finding substantial probability that two prospective jurors in bank 

robbery trial could not be impartial because they were employees of different 

branch of robbed bank]; Tinsley, at pp. 524–529 [no implied bias where juror 

in rape case failed to disclose prior social work and court testimony on behalf 

of another rape victim]; see also People v. Terry (1994) 30 Cal.App.4th 97, 

102–103 [trial court erroneously but harmlessly denied challenge for cause 

against juror who was deputy district attorney in same office as prosecutor].)

Defendant’s reliance on Justice Marshall’s dissenting opinion in Smith

fares no better. Justice Marshall wrote that “[i]n cases like this one, an 
14

evidentiary hearing can never adequately protect the right to an impartial 

jury.” (Smith, supra, 455 U.S. at p. 228, italics added.) He then detailed the 

particular facts of the case that showed the juror in question “was not a 

passive, indifferent job applicant.” (Id. at p. 229.) As Justice Marshall 

explained, the juror began pursuing employment with the prosecuting agency 

“the same day he was sworn in” and asked a friend who worked in the 

criminal court to hand deliver his application to the district attorney’s office, 

believing the friend to have a personal contact there. (Ibid.) The juror then 

regularly met with his friend and the jury warden to determine the progress 

of his application, and after the jury returned a guilty verdict, the juror 

contacted the district attorney’s office “[t]he very next day.” (Ibid.) Justice 

Marshall argued that “[w]hen a juror vigorously and actively pursues 

employment in the prosecutor’s office throughout the course of a trial, the 

probability of bias is substantial,” and “it is also unlikely that a post-trial 

evidentiary hearing would reveal this bias.” (Id., at pp. 229–230.) Thus, 

“where a juror pursues employment with the office of the prosecutor, under 

circumstances highly suggestive of misconduct or conflict of interest, bias 

should be ‘implied,’ and he [or she] should be automatically disqualified, 

despite the absence of proof of actual bias.” (Id. at p. 231.)

Here, the evidentiary hearing reflected a very different picture. Juror 

No. 5’s testimony indicated she was more of a “passive, indifferent job 

applicant” rather than one who was “vigorously and actively” pursuing 

employment with the prosecutor’s office “throughout the course of a trial.” 

(Smith, supra, 455 U.S. at p. 229, Marshall, J., dissenting.) As Juror No. 5 

explained, she had been an employee of Solano County or a county-affiliated 

agency for many years and was actively in the process of looking for new 

employment with the county at the time she saw the victim witness advocate 
15

posting on January 8, 2020, with an impending closing date. Indeed, she 

applied to ten other jobs besides the position with the district attorney’s 

office. She did not think she would get the position or immediately hear 

back, nor did she think she would be working with the prosecutor in 

defendant’s trial. After she began work in June 2020, she mentioned her jury 

service only because her supervisor asked about her experience in the courts, 

and she would have told her supervisor about her jury service even if she had 

voted not guilty. Based on her testimony, which the trial court found 

credible, Juror No. 5’s conduct did not present a “circumstance[] highly 

suggestive of misconduct or conflict of interest” for which Justice Marshall 

urged bias should be implied. (Smith, supra, 455 U.S. at p. 231, Marshall, J., 

dissenting.)

Moreover, the posttrial evidentiary hearing here was not an ineffectual 

remedy in protecting defendant’s right to an impartial jury. Rather, the trial 

court and counsel engaged in effective questioning that elicited detailed 

testimony providing the context for Juror No. 5’s actions and a sound factual 

basis from which the court could find that her decision to apply to the 

prosecuting agency was not connected to and did not impact her jury service. 

From this, the trial court could reasonably conclude that Juror No. 5 

remained “capable and willing to decide the case solely on the evidence 

before” her (Smith, supra, 455 U.S. at p. 217), and that therefore defendant’s 

constitutional right to an impartial jury was not violated.

In sum, defendant was afforded due process through the posttrial 

evidentiary hearing. Juror No. 5’s testimony at the hearing provided

substantial evidence in support of the court’s finding of no actual bias, and 

the instant matter does not present an extraordinary case in which bias 
16

should be implied as a matter of law. Accordingly, the trial court did not err 

in denying the motion for new trial.

B. Section 288.3

Defendant challenges his conviction on the grounds that (1) section 

288.3 is unconstitutionally vague and infringes on free speech; and (2) the 

evidence was insufficient to support the conviction. Both challenges fail.

1. Vagueness and Overbreadth

Under section 288.3, subdivision (a), “[e]very person who contacts or 

communicates with a minor, or attempts to contact or communicate with a 

minor, who knows or reasonably should know that the person is a minor, 

with intent to commit an offense specified in Section 207, 209, 261, 264.1, 

273a, 286, 287, 288, 288.2, 289, 311.1, 311.2, 311.4 or 311.11, or former 

Section 288a, involving the minor shall be punished by imprisonment in the 

state prison for the term prescribed for an attempt to commit the intended 

offense.” For purposes of the statute, “ ‘contacts or communicates with’ shall 

include direct and indirect contact or communication that may be achieved 

personally or by use of an agent or agency, any print medium, any postal 

service, a common carrier or communication common carrier, any electronic 

communications system, or any telecommunications, wire, computer, or radio 

communications device or system.” (§ 288.3, subd. (b).)

Defendant argues section 288.3 is unconstitutionally vague because it 

lacks statutory guidelines for determining what it means to impermissibly 

“contact[] or communicate[]” with a minor. Defendant argues, for example, 

that casual words, jokes, looks, glances, or smiles may trigger the statute’s 

prohibition, and that this purported vagueness creates an unnecessary risk of 

chilling free speech. 
17

These arguments were considered and rejected by the Third District 

Court of Appeal in People v. Keister (2011) 198 Cal.App.4th 442 (Keister). 

Keister held that arguments of vagueness based on the possibility that “a 

glance, wink, or smile” may establish a contact or communication for 

purposes of section 288.3 “do not address the issue of vagueness” because 

“ ‘[t]he mere fact that close cases can be envisioned’ does not ‘render[] a 

statute vague.’ ” (Keister, at p. 448.) As Keister explained, “ ‘[w]hat renders a 

statute vague is not the possibility that it will sometimes be difficult to 

determine whether the incriminating fact it establishes has been proved; but 

rather the indeterminacy of precisely what that fact is.’ ” (Id. at p. 449.) 

Keister concluded that whether a defendant made contact or communication

with a minor with the requisite intent were “yes-or-no determinations, not 

subjective judgments” that rendered section 288.3 unconstitutionally vague. 

(Keister, at p. 449.)

Keister also rejected the argument that section 288.3 infringes on free 

speech since “[t]he only time the communication is criminal is if it is 

motivated by a specific intent to commit an enumerated sex crime.” (Keister, 

supra, 198 Cal.App.4th at p. 449.) As the court explained, section 288.3 “has 

been written in a way that does not unconstitutionally restrict protected 

speech. Before the statute is violated, the defendant must know or 

reasonably should have known the other person was a minor, have the 

specific intent to commit an enumerated sex offense, and then contact or 

communicate with that minor or attempt to do so. [Citation.] Thus, without 

the unlawful sexual intent, the statute is not violated.” (Keister, at pp. 449–

450.)

We agree with and adopt Keister’s analysis and conclusions that section 

288.2 is not unconstitutionally vague and does not impermissibly infringe on 
18

free speech. As defendant provides no persuasive grounds why this court 

should depart from Keister, his constitutional challenges lack merit.

2. Sufficiency of Evidence

Defendant argues the evidence was constitutionally insufficient to 

prove that his communications with the minors were done with the intent to 

sexually abuse them. 

As to E.M., defendant argues it is highly unlikely she would have 

voluntarily gone with him to the tire store if, in fact, he had previously made 

the improper offer of $50 to engage in sexual acts. Defendant notes he never 

told E.M. to do anything in particular during the tire store trip, that E.M. did 

not seem bothered by their joking at the time, and that she never mentioned 

anything about the incident to S.C. or her mother that day. As for the pool 

room incident, defendant points to E.M.’s testimony that she was not sure 

what he meant by his remarks. 

As to M.J., defendant first argues she falsely claimed she did not know 

S.C. would be absent from the shopping trip, as the evidence demonstrated 

that defendant had informed her by text message prior to the trip that S.C. 

had an appointment. Defendant further argues his statement to M.J. that he 

previously wanted to “fuck the shit out of” her was not an invitation to have 

sex, nor did it supply evidence of his intent at the time of the communication. 

He also contends “there was nothing to corroborate” M.J.’s testimony, and 

that text messages taken from her phone merely reflected M.J.’s discomfort 

with defendant. Defendant maintains that his remarks to M.J. were really 

about “the perils of dating people who had no money.” Finally, defendant 

argues there was no other evidence that defendant continued to contact the 

girls after the initial encounters or sent them any sexually explicit messages. 
19

“ ‘In reviewing the sufficiency of evidence under the due process clause 

of the Fourteenth Amendment to the United States Constitution, the 

question we ask is “whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” ’ [Citations.] We 

apply an identical standard under the California Constitution. [Citation.] ‘In 

determining whether a reasonable trier of fact could have found defendant 

guilty beyond a reasonable doubt, the appellate court “must view the 

evidence in a light most favorable to respondent and presume in support of 

the judgment the existence of every fact the trier could reasonably deduce 

from the evidence.” ’ ” (People v. Young (2005) 34 Cal.4th 1149, 1175.) “Even 

where, as here, the evidence of guilt is largely circumstantial, our task is not 

to resolve credibility issues or evidentiary conflicts, nor is it to inquire 

whether the evidence might reasonably be reconciled with the defendant’s 

innocence.” (People v. Zaragoza (2016) 1 Cal.5th 21, 44.) “ ‘ “Reversal on this 

ground is unwarranted unless it appears ‘that upon no hypothesis whatever 

is there sufficient substantial evidence to support [the conviction].’ ” ’ ” 

(People v. Manriquez (2005) 37 Cal.4th 547, 577.)

Under these well-settled standards, defendant’s challenge to the 

sufficiency of the evidence necessarily fails. His attempt to cast doubt on the 

minors’ testimony goes to their credibility, not the sufficiency of the evidence. 

Viewing the minors’ testimony in a light most favorable to the judgment, we 

conclude the jury was provided with evidence from which they could find 

beyond a reasonable doubt that defendant made offers of money or other 

benefits to the girls in exchange for sexual acts. That defendant employed 

vague terms like “stuff” and “things” is immaterial, as the conversations in 

which the proposals were made were explicitly of a sexual nature, and both 
20

M.J. and E.M. affirmatively testified that they understood his remarks to 

relate to sexual conduct. Defendant’s intent to commit sex acts with the 

minors was reasonably inferred from the nature of his remarks—repeated 

indications of his sexual attraction to the girls followed by direct proposals for 

sexual favors in exchange for money or other benefits. That there was no 

evidence of further improper contacts by defendant is immaterial on 

substantial evidence review, as this goes to the weight of the evidence.

In sum, we reject defendant’s contention that substantial evidence did 

not support the jury’s finding that he acted with the requisite intent under 

section 288.3, subdivision (a). 

C. Alleged Instructional Error7

Defendant contends the trial court erred by instructing the jury 

pursuant to CALCRIM No. 3708 that motive is not an element of the charged 

offenses, as this instruction conflicted with CALCRIM No. 1124 requiring the 

People to prove defendant’s intent to commit lewd and lascivious acts.

9 

7 The People contend defendant forfeited his claim of instructional error 

by failing to request modification of CALCRIM No 370 during the trial court 

proceedings below. However, we may review claims of instructional error, 

even though no objection was made in the trial court, if the substantial rights

of the defendant were affected. (People v. Mackey (2015) 233 Cal.App.4th 32, 

106; § 1259.) Under this authority, we will reach the merits of defendant’s 

claim.

8 The instruction under CALCRIM No. 370 was follows: “The People are 

not required to prove that the defendant had a motive to commit the 

crimes. In reaching your verdict, you may, however, consider whether the 

defendant had a motive. [¶] Having a motive may be a factor tending to 

show that the defendant is guilty. Not having a motive may be a factor 

tending to show that the defendant is not guilty.” 

9 The instruction under CALCRIM No. 1124 stated, in relevant part, that 

to prove defendant’s guilt under counts A, B and C, the People had to prove 

that when defendant contacted a minor, he “intended to commit lewd or 

lascivious acts involving that minor. . . . To decide whether the defendant 
21

Defendant argues these “irreconcilably conflicting instructions effectively 

removed the mental element of the offense [under section 288.3] from the 

jury’s determination.” We find no error, and alternatively, no prejudice.

“ ‘We determine whether a jury instruction correctly states the law 

under the independent or de novo standard of review.’ [Citation.] In 

reviewing a claim of instructional error, we ‘must consider the jury 

instructions as a whole, and not judge a single jury instruction in artificial 

isolation out of the context of the charge and the entire trial record.’ 

[Citation.] ‘What is crucial . . . is the meaning that the instructions 

communicated to the jury. If that meaning was not objectionable, the 

instructions cannot be deemed erroneous.’ ” (People v. Kumar (2019) 

39 Cal.App.5th 557, 563–564 (Kumar).) “We also ‘consider the arguments of 

[trial] counsel in assessing the probable impact of the instruction[s] on the 

jury.’ [Citation.] ‘Jurors are presumed able to understand and correlate 

instructions and are further presumed to have followed the court’s 

instructions.’ ” (Id. at p. 564.) “If conflicting instructions on the mental state 

element of an alleged offense can act to remove that element from the jury’s 

consideration, the instructions constitute a denial of federal due process and 

invoke the Chapman [v. California (1967) 386 U.S. 18 (Chapman)] ‘beyond a 

reasonable doubt’ standard for assessing prejudice.” (People v. Maurer (1995) 

32 Cal.App.4th 1121, 1128 (Maurer).)

To demonstrate defendant’s guilt under section 288.3, the People were 

required to prove that defendant contacted or communicated with a minor 

“with intent to commit” one of the sex offenses enumerated in the statute. 

(§ 288.3, subd. (a).) Defendant argues the instruction under CALCRIM 

intended to commit lewd or lascivious acts with a minor, please refer to the 

separate instructions that I will give you on that crime. 
22

No. 370 removed this intent element from the jury’s determination by 

indicating the People were not required to prove that defendant had a 

“motive” to commit the offenses. Although defendant acknowledges that

motive is not an express element of section 288.3, subdivision (a), he insists 

the concept must be construed as an element because all offenses listed 

within the statutory scheme of sexual offenses against children necessarily 

involve “sexually motivated” conduct.

The instructions in question did not pose a conflict or misstate the law. 

Motive is not generally an element of a criminal offense (Maurer, supra, 

32 Cal.App.4th at p. 1126), nor is it an express element of section 288.3. And 

as the California Supreme Court has explained, motive and intent are not 

synonyms but reflect “ ‘separate and disparate mental states.’ ” (People v. 

Hillhouse (2002) 27 Cal.4th 469, 504.) “Motive describes the reason a person 

chooses to commit a crime. The reason, however, is different from a required 

mental state such as intent or malice.” (Ibid.) While an offender’s motive 

may often align with his or her intent—i.e., to fulfill a desire to commit lewd 

or lascivious acts on the minor—that does mean the instructions on motive 

and section 288.3 given in this case were necessarily in conflict.

In Maurer, supra, 32 Cal.App.4th 1121 and People v. Valenti (2016) 243 

Cal.App.4th 1140 (Valenti), the appellate courts held that a motive 

instruction similar to CALCRIM No. 370 improperly removed the mental 

state element required under a different sex offense, i.e., section 647.6. As 

Maurer observed, however, section 647.6 “is a strange beast” because it 

expressly required the prosecution to prove the defendant’s motive—i.e., that 

the defendant engaged in acts or conduct that are “ ‘motivated by an 

unnatural or abnormal sexual interest.’ ” (Maurer, at p. 1126.) By contrast, 
23

section 288.3 does not use the terms “motive” or “motivated” in articulating 

the requisite mental state of the offense.

That said, we acknowledge there may be a potential for confusion 

between the terms “motive” and “intent” as those words might be commonly

understood. “[T]he audience for these instructions is not a room of law 

professors deciphering legal abstractions, but a room of lay jurors.” (Maurer, 

supra, 32 Cal.App.4th at p. 1127.) Where, as here, it is suggested that jury 

instructions are so confusing as to violate fundamental ideas of fairness, “we 

inquire ‘whether there is a reasonable likelihood that the jury has applied the 

challenged instruction in a way’ that violates the Constitution.” (Estelle v. 

McGuire (1991) 502 U.S. 62, 72; accord, People v. Holt (1997) 15 Cal.4th 619, 

677.) In making this determination, we look to the trial record as a whole, 

including the other instructions given and the arguments of counsel, and 

presume the jury was able to understand and correlate the instructions. 

(Kumar, supra, 39 Cal.App.5th at pp. 563–564.)

Here, it is not reasonably likely the jury was led to believe it could 

convict defendant without finding his intent to commit sexual acts on the 

minors. In addition to CALCRIM Nos. 370 and 1124, the jury was instructed 

under CALCRIM No. 225 that “[t]he People must prove not only that the 

defendant did the acts charged, but also that he acted with a particular 

intent.” Under CALCRIM No. 251, the jury was told that “[t]he crimes 

charged in this case require proof of the union, or joint operation, of act and 

wrongful intent. [¶] For you to find a person guilty of the crimes in this case 

of luring to commit lewd and lascivious act[s] . . . that person must not only 

intentionally commit the prohibited act, but must do so with a specific 

intent.” To that end, CALCRIM No. 1124 instructed the jury on the specific 

intent element under section 288.3. 
24

Additionally, the closing arguments of both the prosecution and the 

defense assisted the jury in the proper understanding that proof of 

defendant’s intent was required to convict him. During closing arguments, 

the prosecutor specifically drew the jury’s attention to CALCRIM No. 1124 

and discussed the element of intent. After defining lewd or lascivious acts, 

the prosecutor explained it was immaterial to defendant’s intent whether he 

succeeded in committing such acts, as his “intent was present” when he 

communicated the offers to the minors. Likewise, defense counsel repeatedly 

made clear to the jury that it had “to decide if[,] when [defendant] had 

contact with and communicated with these young women, that he had the 

specific intent when he made the communication. That’s what 1124 of 

CALCRIM says. When the communication was made, he had the specific 

intent to commit the sex act.” Later, defense counsel remarked, “You are 

being called upon to coolly and dispassionately make a decision if the 

government has proven beyond a reasonable doubt that when these 

communications happened, he intended to have sexual contact with these 

minors.” Defense counsel further impressed upon the jury that “[t]he only 

way your vote can be guilty is if you believe beyond a reasonable doubt that 

in that moment he had the specific intent to have sexual contact with her.” 

On rebuttal, the prosecutor once again pointed the jurors to CALCRIM 

No. 1124 for “the elements of this crime” and argued that “the intent was 

made when the comments were made.” At no time did the prosecution or 

defense make remarks that would have created or reinforced a mistaken 

belief that the jury could find defendant guilty under section 288.3, 

subdivision (a), without finding that he had the requisite intent under the 

statute.
25

On this record, we conclude defendant fails to demonstrate a 

reasonable likelihood that the jury interpreted the instruction under 

CALCRIM No. 370 to remove from its consideration the element of intent.

In any case, any perceived error in instructing the jury under 

CALCRIM No. 370 was harmless beyond a reasonable doubt. (See Maurer, 

supra, 32 Cal.App.4th at p. 1129 [applying Chapman standard of prejudice 

where instructions remove element from jury’s consideration].) “In making 

this determination of harmlessness, we must ask ‘whether it appears “beyond 

a reasonable doubt that the error complained of did not contribute to the 

verdict obtained.” ’ ” (Maurer, at p. 1129.) “Significant in this regard is 

whether the evidence is ‘ “of such compelling force as to show beyond a 

reasonable doubt” that the erroneous instruction “must have made no 

difference in reaching the verdict obtained.” ’ ” (Ibid.) We will not find the 

error harmless “ ‘ “where the defendant contested the omitted element and 

raised evidence sufficient to support a contrary finding.” ’ ” (Valenti, supra, 

243 Cal.App.4th at p. 1166.)

Here, the evidence of defendant’s intent to commit sex acts with E.M. 

and M.J. was compelling. Both minors testified that defendant made express 

proposals to give them money and other benefits in exchange for what they 

reasonably understood to be sexual acts. In making these proposals, 

defendant openly expressed his sexual attraction to each of the minors. As to 

M.J., defendant not only complimented her looks (“a nice ass”) but told her 

that he once “wanted to fuck the shit out of” her before proposing that they 

“do stuff” alone, and then later asking her to message him “about his ideas.” 

Defendant called E.M. “sexy,” offered her money to do things in the back seat 

of his car, and invited her to a room in his house where he sometimes “had a 

lady in there.” Defendant was alone with each minor when making the 
26

statements, and he cautioned both girls not to tell anyone about their 

conversations. Despite the defense’s efforts to undermine the minors’ 

credibility, M.J.’s immediate reporting of the incident was corroborated by 

the testimony of her mother and S.C. as well as the text message evidence 

admitted at trial, while E.M.’s account was corroborated by Wendy N., who

testified that defendant admitted to propositioning E.M.

Defendant maintains that a rational juror could have come to a 

different conclusion and viewed his remarks simply as crude jokes. In 

support, he cites Maurer and Valenti, but we find both cases sharply 

distinguishable. In Maurer, the appellate court found that the defendant was 

prejudiced by an instruction similar to CALCRIM No. 370 because the 

evidence showed that the defendant and the minor were “confidants”; they

“freely discussed sexual and nonsexual matters, sometimes in a counseling 

mode,” and their discussions of sexual matters were usually in a joking way. 

(Maurer, supra, 32 Cal.App.4th at p. 1131.) In Valenti, the court found the 

instructional error prejudicial because the defendant, a children’s soccer 

coach, testified in his defense that he hugged some of the victims “in a 

nonsexual, innocent way,” such to celebrate making a soccer goal. (Valenti, 

supra, 243 Cal.App.4th at p. 1167.) Valenti held that in assessing Chapman 

prejudice, “[t]he testimony of a single witness may be sufficient” to support 

an alternative conclusion on the omitted element, and the defendant’s own 

testimony constituted significant countervailing evidence that his conduct 

was not motivated by an unnatural sexual interest in children. (Valenti at 

p. 1167.)

Defendant’s reliance on Maurer and Valenti merely serves to 

underscore the distinguishing facts of the instant case. There was no 

evidence here that defendant and the minors were in a close relationship in 
27

which they freely and frequently discussed sexual matters, or that the minors 

made sexually explicit or suggestive comments to defendant during the 

incidents in question or at any other time. Unlike the situation in Valenti, 

defendant did not testify as to his own state of mind, and he points to no 

other witness whose testimony supported the inference that he lacked sexual 

motivation in making his proposals to the minors. At best, E.M. testified that 

on the trip to the tire shop, she jokingly asked defendant for some money

because she saw he had some, but the record confirms that she never testified 

or otherwise indicated that she made jokes or comments of a sexual nature 

with defendant, and she testified without contradiction that she felt 

uncomfortable by his multiple advances. Nor did Wendy N.’s testimony 

provide exculpatory evidence as to defendant’s intent, as she testified that 

defendant troublingly suggested his proposal would have been E.M.’s “way of 

paying him back” or “earn[ing] her keep” for free housing, and he refused to 

answer Wendy N.’s query as to what he would have done had E.M. agreed. 

This was simply not a case where countervailing evidence supported an 

inference that defendant’s proposals to the minors were other than sexually 

motivated.

Having carefully examined the record, we conclude it is beyond a 

reasonable doubt that the jury’s verdict would have been the same had the 

CALCRIM No. 370 instruction not been given.

DISPOSITION

The judgment is affirmed.
28

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Tucher, P.J.

_________________________

Rodríguez. J.

People v. Carabajal A162212 
29

Trial Court: Superior Court of the County of Solano

Trial Judge: Hon. Carlos R. Gutierrez

Counsel: Law Offices of Bobbie Stein, Bobbie Stein, under 

appointment by the First District Appellate Project, for 

Defendant and Appellant

Rob Bonta, Attorney General of California, Lance E. 

Winter, Chief Assistant Attorney General, Charles C. 

Ragland, Acting Senior Assistant Attorney General, A. 

Natasha Cortina, Supervising Deputy Attorney General, 

Lynne G. McGinnis, Deputy Attorney General, and

Kelley Johnson, Deputy Attorney General for Plaintiff 

and Respondent 

People v. Carabajal A162212