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Name: People v. Nakai
Case #: E046559
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/02/2010
Summary

(1) Recorded “chat” dialogues are not confidential communications protected by Penal Code section 632. (2) Penal Code section 313.1, subdivision (a) may be a lesser included offense to Penal Code section 288.2, subdivision (a), requiring sua sponte instruction if there is substantial evidence of the lesser offense. Appellant entered a Yahoo chat room and communicated with a person he believed to be a 12-year-old girl, but in actuality was an adult female involved in an organization that attempts to find adults that solicit children online. After several contacts with the “girl,” appellant arranged to meet her at her house – a location set up as part of a sting investigation by law enforcement, where he was arrested. The trial court denied appellant’s motion to suppress recordings of the chat room and appellant was convicted of Penal Code section 664/288.2, subdivision (a) (attempting to send harmful matter to a minor). On appeal, the appellate court rejected appellant’s argument that the chat room recordings were protected by Penal Code section 632 which makes it a crime to record another’s confidential communication without consent. Although the form of the communication fell within section 632, by the nature of the online medium, they were found to not be confidential. Yahoo has a disclaimer that communications may be shared for investigations or to prevent illegal activities; such communications may be printed and saved; a person communicating via a chat room does not necessarily know the other party; by his own statements to the “girl,” appellant expressed concerns her mother might overhear. With these factors, it was not reasonable for appellant to expect his communications to be confidential, subject to protection of section 632. Regarding instruction on the lesser, the court, assuming but not actually finding that section 313.1, subdivision (a) is a lesser to section 288.2, found that because there was no substantial evidence as to section 313.1, subdivision (a), the trial court had no duty to instruct on that offense.