There was insufficient evidence to establish defendant’s conduct was objectively irritating or disturbing to support a conviction for annoying or molesting a child. Defendant was convicted of multiple sex crimes in the 1980’s and sentenced to 10 years in state prison. In 2016, during a routine sex offender compliance check, an officer found evidence in the form of emails and photos that he had formed relationships with three minor boys and their families. Defendant was charged with two counts of annoying or molesting a child under 18 years old (Pen. Code, § 647.6) and four counts of communicating with a minor with the intent to commit a sexual offense (Pen. Code, § 288.3). The boys testified that defendant was like a family member and never touched them inappropriately or made them feel uncomfortable. The family members were aware of defendant’s past and most indicated they had no concerns about the conversations between defendant and the boys. Defendant was convicted as charged and appealed, arguing there was insufficient evidence to support a conviction for annoying or molesting a child. Held: Reversed. To convict a defendant of annoying or molesting a child, the prosecution must prove, among other elements, that a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct and that defendant’s conduct was motivated by an abnormal sexual interest in the child. Thus, violation of section 647.6 requires that both an objective and subjective element be proven. (People v. Lopez (1998) 19 Cal.4th 282, 291.) The Attorney General contended that viewed together, the emails would disturb most based on defendant’s known history as a child molester. However, viewing the objective conduct in light of defendant’s past blurs the objective and subjective elements of the crime, an approach expressly rejected by Lopez. Ambiguous conduct is not enough to satisfy the statute. There was not substantial evidence of conduct that would objectively unhesitatingly disturb a normal person. The two counts must be reversed.
Trial counsel was prejudicially ineffective for his consistent failure to object to inadmissible expert testimony and irrelevant, inflammatory testimony about defendant’s prior sexual offenses. Defendant argued that his trial counsel committed numerous errors that prejudicially deprived him of effective assistance of counsel and a fair trial, based on his failure to object to inadmissible and highly inflammatory testimony on several significant topics(1) psychiatric expert testimony; (2) child sexual abuse accommodation syndrome (CSAAS) testimony; and (3) inflammatory propensity evidence. Here, the psychiatric expert testimony impermissibly suggested that defendant had a particular mental state at the time he committed the charged offenses, which was highly prejudicial given that intent was not established by any other evidence at trial. The prosecutor relied on CSAAS expert testimony to suggest that the victims in this case were actually sexually molested rather than merely explaining why some victims may not disclose abuse until later in life. Witness testimony about defendant’s prior convictions went well beyond the facts of the underlying crimes without objection where defendant’s former victims and their family members explained the impact of his conduct and their opinions about defendant’s release from prison. In the face of this prejudicial and irrelevant testimony, trial counsel’s decision to remain silent fell below an objective standard of competence. The cumulative effect undermined confidence in the jury’s verdict. The judgment of conviction was reversed as to all counts and the matter remanded for further proceedings as to the four counts of communicating with a minor.