People v. Ray

THE PEOPLE, Plaintiff and Respondent, v. RONNIE LIN RAY, Defendant and Appellant.

C091130

California Court of Appeals, Third District, Shasta

October 5, 2021

NOT TO BE PUBLISHED

Super Ct. No. 17F1261

RENNER, J.

A jury convicted defendant Ronnie Lin Ray of attending an arranged meeting with a minor with intent to commit a sexual offense (Pen. Code, § 288.4, subd. (b)-count 1)^[1] and attempting to contact a minor with intent to commit a sexual offense (§ 288.3, subd. (a)-count 2).

At sentencing, the court placed defendant on probation for three years and imposed a term of 178 days in county jail, subject to a suspended prison term of two years and six months.

On appeal, defendant contends: (1) his conviction for violating section 288.4 must be reversed because the statute is unconstitutionally vague; (2) the trial court erred by failing to correct the prosecutor's misstatements regarding the elements of that offense; (3) the evidence was insufficient to support either count; (4) the court erred in admitting a statement he made regarding his son's arrest (5) his conviction for violating section 288.3 must be reversed because the statute requires an actual minor victim and (6) his trial counsel rendered ineffective assistance by not objecting to the court's imposition of certain fees and fines without a hearing to determine his ability to pay them. Additionally, the parties submitted supplemental briefing regarding the applicability of recent legislation limiting probation terms. We will affirm the judgment and remand for resentencing in light of this change.

I. BACKGROUND

A Redding police officer testified he posted advertisements on Craiglist as part of an undercover operation. In 2017, he posted an ad in the personal section titled “ ‘Lonely and bored' ” under the name Brian.

Defendant responded to the ad, describing his interests and stating he “[w]ould like to find a regular fwb. I'm 50 but don't feel it[;] mentally I'm much younger.” Defendant testified “fwb” meant a friend with benefits or “a friend that has sexual relations.” Brian replied, “Wow, it's like it[']s meant to be.”

Defendant asked if age was an issue. Brian responded, “As long as it isn't for you.” Defendant said, “[f]or the most part no” and he was “[n]ot looking for a relationship just a friend with benefits type of thing. [¶] No strings or drama.”

They continued to exchange messages. Eventually, Brian said he was in high school. “You know how old I am, right?” asked defendant. “And you're 18 at least right?” Brian said he was “a mature 15. I hope that doesn't scare you off.”

Defendant asked why Brian would want to hang out with someone his age. Brian said he related better to older people and it was difficult being gay and trying to find a partner. “I can see that, ” said defendant. “However[, ] I'm not going to jail so we can be friends without benefits.”

Brian said, “I understand, let me know if you change your mind.” The officer testified he sent this message to give defendant an easy way out of the conversation and to leave it up to defendant whether to continue. The officer estimated that, in other operations, at least 98 percent of people cut off contact at this point.

Defendant wrote back seven minutes later: “I don't see why we couldn't meet sometime.”

Brian replied, “[S]ounds good. I just don't want to waste your time or mine if you know what I mean, ” and “I would love to meet you and learn a few things.”

As they planned their meeting, defendant asked, “This isn't some kind of trick to entrap/ arrest me is it?”

Brian said he was not a cop. He reiterated that he did not want to waste his or defendant's time and asked, “Are we going to blow each other or have some sex?” Defendant said, “You won't be disappointed.”

They agreed to meet in a parking lot near an aquatic center. Defendant said they should probably drive somewhere else after they met depending on how busy it was. Brian asked defendant to bring protection. Defendant replied, “I will have what we need.”

The officer went to the meeting place and saw defendant arrive in his truck. When the officer approached in full police uniform, defendant's eyes widened, and he put his truck in reverse. The officer announced, “Police, ” and told him to stop. Defendant stopped. As defendant got out of his truck he said, “ ‘I know what this is about, and I didn't do anything. My son just got arrested for the same thing, so I know better.' ” After the officer read defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant said he was there “to counsel Brian on the dangers of Craigslist.” Defendant said he thought he had condoms or lubricant in his car, but the officer did not find any.

At trial, defendant denied any interest in meeting anyone underage. He testified that he continued the conversation after learning Brian's age to make sure he was safe. Further, “I didn't see why we couldn't meet sometime, and I could enlighten him a little bit about the dangers of what he was doing.”

II. DISCUSSION

A. Vagueness

Section 288.4, subdivision (a)(1) provides: “Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5, 000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment.” Subdivision (b) increases the proscribed punishment when this person also “goes to the arranged meeting place at or about the arranged time.” Defendant contends count 1 must be reversed because the terms “unnatural or abnormal sexual interest in children” render section 288.4 unconstitutionally vague under the state and federal constitutions. We disagree.

“The due process concept of fair warning is the underpinning of the vagueness doctrine.” (People v. Castenada (2000) 23 Cal.4th 743, 751.) Under both the federal and state Constitutions, “ ‘due process of law in this context requires two elements: a criminal statute must “ ‘be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.' ”' ” (People v. Morgan (2007) 42 Cal.4th 593, 605.)

Our Supreme Court “has recognized ‘the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute... cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.”' [Citation.] Therefore, ‘a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that “the law is impermissibly vague in all of its applications.”... [Citation.]' [Citation.] Stated differently, ‘ “[a] statute is not void simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language.”' ” (People v. Morgan, supra, 42 Cal.4th at pp. 605-606.)

1. Standard of Conduct

As set forth above, due process first requires that the challenged statute “be definite enough to provide a standard of conduct for those whose activities are proscribed. [Citations.] Because we assume that individuals are free to choose between lawful and unlawful conduct, ‘we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he [or she] may act accordingly. Vague laws trap the innocent by not providing a fair warning.' ” (People v. Heitzman (1994) 9 Cal.4th 189, 199.) In analyzing this requirement, “ ‘we look first to the language of the statute, then to its legislative history, and finally to the California decisions construing the statutory language.' [Citation.] This analytical framework is consistent with the notion that we ‘require citizens to apprise themselves not only of statutory language, but also of legislative history, subsequent judicial construction, and underlying legislative purposes.' ” (Id. at p. 200.)

Defendant argues the language is ambiguous because “[a]bnormal implies a known norm, with an empirical basis in fact.” He also argues “[u]nnatural has no clear meaning because there is no agreed-upon definition of the natural state of sexual relations between two people.” He contrasts a medical definition of pedophilia that specifies ages and age differentials.

The phrase “unnatural or abnormal sexual interest in children” conveys sexual interest in children that departs from both the typical and the accepted standards of social behavior. (See Webster's 3d New Internat. Dict. (2002) p. 4 [defining abnormal as “deviating from the normal”, “differing from the typical, ” and “departing from the accepted standards of social behavior”], p. 2504 [defining unnatural as “not being in accordance with normal feelings or behavior” and “inconsistent with what is natural or expected”].) “That a statute does not afford mathematical precision is not fatal.” (People v Bermudez (2020) 45 Cal.App.5th 358, 369, disapproved on other grounds in People v. Valencia (2021) 11 Cal.5th 818, 839, fn. 17.) “ ‘The law is replete with instances in which a person must, at his peril, govern his conduct by such nonmathematical standards as “reasonable, ” “prudent, ” “necessary and proper, ” “substantial, ” and the like.'... Yet standards of this kind are not impermissively vague, provided their meaning can be objectively ascertained by reference to common experiences...