People v. Collom

Filed 7/13/20 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A155688 v. DAVID P. COLLOM, (City & County of San Francisco Super. Ct. No. SCN228406) Defendant and Appellant.

A jury convicted David Collom of multiple counts for meeting a minor for lewd purposes (Pen. Code, § 288.4, subd. (b))1, sending harmful matter to a minor (§ 313.1, subdivision (a)), and arranging a meeting with a minor for lewd purposes (§ 288.4, subd. (a)(1)). On appeal, Collom contends there was no substantial evidence for his convictions under section 313.1, subdivision (a) (section 313.1(a)) which he says can be violated only when harmful matter is transmitted to a minor, and not when, as here, it is transmitted to an adult posing as a minor. He argues

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the portions beginning with “On October 13, 2017, after Collom passed along” on page 3 through “Yeah you’re only 14 but you’re hot baby[.]” on page 6; beginning with the heading “Defense Case” on page 8 through “There was also a google search for ‘16 year old girls that live in Stockton want to have sex.’ ” on page 10; and Section B. with the heading “Instructional Error” and Section C. with the heading “Minute Order and Abstract of Judgment” in the Discussion portion of the opinion.

1 All statutory references are to the Penal Code.

1

the trial court prejudicially erred in failing to instruct the jury sua sponte that his mistaken belief as to the purported minor’s age, even if unreasonable, was a complete defense. He also says the clerk’s minute order and abstract of judgment must be amended to properly reflect his sentence. In the published portion of this opinion, we reverse the misdemeanor convictions under section 313.1(a). In the unpublished portion, we correct the trial court’s sentencing minute order and abstract of judgment to properly reflect the imposed sentence. Otherwise, we affirm. BACKGROUND An amended information charged Collom with one count of meeting a minor for lewd purposes (§ 288.4, subd. (b), count 1), four counts of sending harmful matter to a minor (§ 288.2, subd. (a)(2), counts 2, 3, 4, and 5), and three counts of arranging a meeting with a minor for lewd purposes (§ 288.4, subd. (a)(1), counts 6, 7, and 8). The jury trial revealed the following. Prosecution Case The social network Skout.com (Skout) provides users a platform where they can register, create profiles, and meet other users nearby with whom they can chat or post online messages. Users who are 13 to 17 years old are placed in Skout’s teenage community, while those 18 and older are placed in the adult community. In July 2017, San Francisco Police Department Sergeant Christopher Servat, a Special Victims Unit officer assigned to the Internet Crimes Against Children subunit, was working an undercover operation to investigate individuals exploiting children online. He created a fictitious profile on Skout for “Briana.” Servat gave Briana a birthday that stated she was 18 years old and put her in Skout’s adult community. He included this greeting: “Hey, looking for cool, chill people . . . I am not 18. I am in high