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Name: People v. Jensen
Case #: H024077
Court: CA Court of Appeal
District 6 DCA
Division: 2
Opinion Date: 12/11/2003
Subsequent History: None

A conviction for distributing harmful matter to a minor over the internet under Penal Code section 288.2, subdivision (b), was reversed where the trial court prejudicially erred in instructing the jury on the element of “intent or purpose of seducing” a minor. The defendant had sent sexually explicit photographs to officers posing as underaged boys in an internet chat room, and had engaged in sexual discussion with the officers on several occasions. The court instructed the jury that the requisite intent could be proven by evidence showing that defendant intended to entice the “boys” to masturbate. The Attorney General conceded that the statute required an intent by defendant to engage in a sexual act with the recipient minor, but argued that the instructions were not reasonably likely to lead a reasonable juror to believe that the intent to seduce could be satisfied by an intent to convince a minor to masturbate. The appellate court disagreed, and found that the error was prejudicial under Chapman. The court further held that young gay men in a chat room were not a “clearly defined deviant sexual group” within the meaning of Penal Code section 313, subdivision (a)(1), so the trial court was not required to provide a special definition of “harmful matter” under that section.. Finally, Penal Code section 313.1 is a lesser included offense of Penal Code section 288.2, subdivision (b), and the trial court erred in failing to so instruct the jury.