Code, 1 § 288, subd. (c)(1); count 1); contacting a minor with knowledge and intent to
commit a sexual offense (§ 288.3, subd. (a); count 2); and meeting with a minor for lewd
purposes (§ 288.4, subd. (b); count 3). 2 The court sentenced Korwin to three years in
prison based upon the middle term for count 3. The court stayed punishment for count 1
(one year) and count 2 (three years) pursuant to section 654.
Korwin challenges only his conviction for count 2, contending there was
insufficient evidence to support his conviction under section 288.3, subdivision (a)
because the agent was not actually a minor. He contends his erroneous belief he was
communicating with a minor is not a substitute for the statutory requirements. We
1 Statutory references are to the Penal Code unless otherwise stated. 2 The jury acquitted Korwin of one count of possession of child pornography (§ 311.11, subd. (a); count 4).
2
disagree with his interpretation of the statute concluding it is contrary to both the plain
meaning of the statute and its purpose. We, therefore, affirm the judgment.
II
BACKGROUND
Korwin posted an advertisement on the casual encounters section of an online
classified Website looking for a younger female between the ages of 18 and 28, possibly
with a "daddy complex." The advertisement wanted individuals to respond to the
message with a title line "young and willing" and stating an age.
An agent working in the child exploitation unit on an Internet task force responded
to the advertisement with an e-mail titled "Young and Willing 13." The body of the
message said, "Probably too young, but you sound sweet. Thought I'd say hi anyways."
Korwin responded saying she was too young, but they could chat. Korwin continued to
communicate for four and a half to five months with the agent who was using the persona
of a 13- or 14-year-old girl. 3 The messages were primarily sexual.
When the girl asked what a "daddy complex" was, Korwin responded saying,
"some girls like to imagine they are having sex with their daddy, and some dad's [sic]
fantasize the same. It can extend to getting bare butt spankings and other things."
Korwin said he had never been a woman's first lover and the purpose of his advertisement
was to find a "legal-aged virgin," but he put in parenthesis that it was "harder to do these
3 Because the agent communicated with Korwin under the assumed persona, we hereafter refer to the agent as "the girl."
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things." He asked the girl about her sexual encounters with boys her age. Korwin said if
she was 18 they could have "some legitimate fun."
Korwin asked questions about the girl's body including whether she had pubic
hair, the size of her breasts, and about her menstrual cycles. As the conversations
progressed, Korwin said he wanted to "mentor" the girl and gave specific instructions on
how to masturbate and give oral sex.
Korwin sent a picture of himself and asked for a picture of the girl. The agent sent
an age-regressed photo of another female agent.
Korwin said he was a high school teacher. He said he had some crushes on
students over the years, but he did not act on them.
Eventually, Korwin suggested he could treat the girl to fast food and a soda if he
was in the town where she said she lived. He suggested he could take some head shots of
her to send to a modeling agency. He also said he wanted to take naked photos or
suggestive photos at a park.
Korwin expressed a desire to meet, but also expressed concern about getting
caught. He said they could meet without doing anything physical except maybe a foot
massage and a hug. He again discussed taking suggestive photos in a park.
Korwin mentioned meeting before the end of the school year. He told the girl to
pick out polish so they could paint each other's toenails. He said he would wear loose
shorts when they met so the girl could touch his genitals with her feet. Korwin said he
would bring a camera to take suggestive pictures.
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When they finally arranged to meet at a fast food restaurant, Korwin gave specific
instructions about what the girl should bring and wear. He also instructed her to bring an
extra set of panties. He said she could change in the car on the way to the park where he
would take photos. He said he would wear gym shorts and sandals.
Korwin was arrested when he arrived at the meeting spot. He was wearing loose
gym shorts. Several cell phones and two cameras were located in a search of Korwin's
vehicle along with male enhancement pills, condoms, and a camera bag containing
women's underwear. One of the phones contained the age-regressed photo sent to
Korwin.
III
DISCUSSION
Korwin's sole contention on appeal is that there was insufficient evidence for his
conviction under section 288.3, subdivision (a), because he did not communicate with an
actual minor. We reject this contention.
A
Where a defendant challenges the sufficiency of the evidence supporting a
conviction, we " ' " 'must review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.' " ' [Citation.] … 'Substantial
evidence includes circumstantial evidence and any reasonable inferences drawn from that
evidence.' " (People v. Brooks (2017) 3 Cal.5th 1, 57.) We presume the existence of
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every fact the trier of fact could reasonably deduce from the evidence in support of the
judgment. (People v. Clark (2011) 52 Cal.4th 856, 943.)
We independently review issues regarding statutory interpretation. In doing so,
we begin with the plain language of the statute, then look to the statute's purpose,
legislative history, public policy, and statutory scheme to " ' " 'select the construction that
comports most closely with the apparent intent of the Legislature, with a view to
promoting rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences.' " ' " (People v. Barba (2012) 211
Cal.App.4th 214, 222.) The same principles of statutory construction are applied when
interpreting a voter initiative. (People v. Canty (2004) 32 Cal.4th 1266, 1276).
B
Section 288.3, subdivision (a) provides: "Every 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