Metropolitan News-Enterprise


Friday, December 12, 2003


Page 1


Court of Appeal Overturns Conviction in Internet Pornography Case


By DAVID WATSON, Staff Writer


An instruction that could have allowed jurors to find a Sacramento man guilty of attempting to distributing harmful matter over the Internet with intent to seduce a minor based on evidence of chat room and e-mail efforts to get policemen posing as juveniles to masturbate was reversible error, the Sixth District Court of Appeal ruled yesterday.

Martin James Jensen was convicted on nine counts of violating Penal Code Sec. 288.2(b) based on Internet contacts with two San Jose police officers who pretended to be 13-year-old boys. Jensen e-mailed them photographs depicting sexual conduct, chatted with them about sexual activity, and encouraged them to masturbate and describe the conduct to him.

He made vague promises to meet the supposed boys to engage in sexual activity, but resisted pressure to schedule any actual visits. The Penal Code section criminalizes Internet distribution of harmful matter, elsewhere defined, to a minor “with the intent, or for the purpose of seducing” him or her.

Intent Element

Writing for the court, Justice Nathan D. Mihara said that the instructions given by Santa Clara Superior Court Judge Diane Northway would have permitted jurors to find the intent element of the statute satisfied if the prosecution proved Jensen’s aim was to persuade what he believed to be teenaged boys to masturbate. Northway, he noted, told jurors that “the word ‘seduce’ means persuading one into sexual intercourse or other sexual activity, not mere discourse.”

While the trial judge did not define sexual activity, she did tell the jurors that “sexual conduct” included “masturbation” that was “performed alone.”  The prosecutor also argued to the jury, “I don’t have to prove the contacts or the intent to contact,” Mihara pointed out.

“[T]he ‘seducing’ intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor,” the justice declared. “Intending to entice a male minor to masturbate himself does not satisfy this ‘seducing’ intent element of Penal Code section 288.2, subdivision (b).”

Mihara noted that prosecutors conceded on appeal that the instruction was erroneous, but contended the error was harmless.

The justice explained:

Not ‘Subsumed’

“The Attorney General argues that no reasonable juror would have understood the instructions to permit the ‘seducing’ intent element to be based on an intent to entice a minor to masturbate because such an intent ‘would be subsumed’ by the other intent element of the offense. Not so. The other intent element of the offense may be satisfied by proof that the perpetrator acted ‘with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of that person or of the minor.’”

He went on to say:

“The perpetrator may act with this intent even if the perpetrator does not intend to entice the minor to perform any sexual act even masturbation.  The perpetrator may simply intend to arouse the minor without enticing the minor to perform any act or the perpetrator may be solely concerned with the perpetrator’s arousal. We do not believe that reasonable jurors would believe that the ‘seducing’ intent element was ‘subsumed’ by the ‘arousing’ intent element if they believed that the ‘seducing’ intent element could be satisfied by proof that the perpetrator intended to entice the minor to masturbate alone.”

Justices Franklin D. Elia and Eugene M. Premo concurred.

The case is People v. Jensen, H024077.


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