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 In the unpublished portion, we correct the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



                                         2
school.” For Briana’s profile pictures, Servat used two photographs given to
him by Sergeant Kathryn Bartel taken when she was 12 and 14 years old.
      In October 2017, Collom contacted Briana with the message “Hello,
gorgeous.” Collom’s profile indicated he was 57 years old and from Stockton.
Days later, Servat, posing as Briana, responded and the two began
communicating. Collom messaged, “I find you very attractive and very
beautiful and gorgeous. Oh, and sexy. I would love to get to know you more,
if you don’t mind.” He gave Briana his cell phone number with the comment,
“Give me a call so we can have . . . a little bit of conversations in a private
matter—or a private conversation. This site is too wild.”
      A few days later, Servat, continuing to pose as Briana, sent Collom a
message on Skout and asked his age. He responded, “Does age really matter
to you?” Servat answered, “No. I like older guys. I’m 14.” Collom replied,
“Oh, that’s wonderful, sweetheart. I hope your parents do not know what you
are doing because you are not even supposed to be on this dating site, but you
are a grown woman to me any way. [¶] Is there any chance we can get away,
and a have fun in Frisco because I really want to know you even better. Like
I said, you are gorgeous. [¶] Get back to me soon, sweety.”
      Soon they began communicating outside of Skout. Servat used a phone
designated for the undercover operation and estimated the two exchanged
“probably thousands” of texts between October 2017 and November 2017. He
described the “entirety of the conversation [as] very sexual.” The following
are excerpts from some of their exchanges which were the bases for the
criminal charges against Collom and which bear on issues in this appeal.
      On October 13, 2017, after Collom passed along a few photographs of
himself, Servat sent Collom a picture of Bartel at 14 years old. In response,




                                         3
Collom texted: “Wow you’re hot baby [¶] So how’s school going [¶] They fresh
men in high school that would be like what ninth grade[.]”
      On October 14, 2017, Collom texted, “You go to school I go to work
make money you go to care to learn to make more money [¶] Now I suppose
I’m your sugar daddy[.]” They discussed relationships, sexual experiences,
and their eagerness to get to know each other better. Servat mentioned
Briana’s mother worked afternoons and evenings and that her father lived
elsewhere. Collom added, “I’ll be your sugar daddy and your daddy.” He
wanted Briana to save pictures he sent her and advised her to lock her phone
so her mother could not see them. He added, “You seem very mature for your
age . . . like your 20-something.”
      On October 15, 2017, Collom texted, “Well, I was hoping you were
awake but anyway imma give you a special could no disrespect intended but
you’re probably imagining and had to guess my age noo, baby be honest with
what you desire that and have it inside you slow an easy until you can accept
it all hang I would show you love like you never had it before sweetheart you
are a fantasy come true and I’m your sugar daddy[.]” He attached a photo of
an erect penis. He continued, “[W]ould you enjoy having sex with me and did
you ever guess my age you are my fantasy and you are so fucking gorgeous.”
Servat replied, “Do you remember my age?” Collom answered, “Really yeah
14 on your profile says you’re 17 so you did not tell the truth shame on you
[¶] But you seem so mature and know exactly what you want . . . .” Servat
wrote, “I put 17 on profile so I can chat with people [¶] But I’m telling u the
truth because I like and trust u, I’m 14[.]” Collom replied, “Really well I’m
glad we got to know each other got connected . . .”
      On October 16, 2017, they exchanged more texts. At some point,
Collom asked, “[W]hat are you doing texting me when you’re supposed to be



                                        4
in school[?]. Servat responded, “I’m being careful, I hide my phone from my
teacher[.]” Collom responded, “Good girl[.]” Later, Servat texted Collom a
photo of Sergeant Bartel at age 14. Collom reacted, “[D]amn baby you’re sexy
you look older than 14 but like I said you look very sexy and vantastic . . . .”
Servat replied, “Thanks baby [¶] But yes I’m 14.” Collom returned, “You’re
very welcome and I believe you I’m just saying you look older than 14 but I
love every inch of you.”
      Between the evening of October 26 and the early morning of October
27, 2017, they exchanged another round of texts. Collom asked, “[A]re you
busy this Sunday[?]” Servat answered, “Yea doin stuff with family [¶] I
mostly am free after school [¶] Cuz that’s when my mom works[.]” Collom
asked, “So is there any way we can get together on a weekend when you’re
not doing family stuff cuz I really want to meet you and get to know you and
hold you and kiss you[.]” Shortly after midnight, Collom added, “Goodnight
baby I hope you have a great day tomorrow thinking about you can’t wait to
eat your pussy [¶] Cuz I can’t help it but I love you and I can’t wait to fuck
you and make love to you I hope you can understand I desire you and I miss
you so much[.]” This text was followed by the same photo of an erect penis he
sent on October 15.
      On October 29, 2017, Collom texted Briana, “Good morning sweetheart
you’re so beautiful I love you with all my heart.” He included a photo of an
adult man with an erect penis. After the two professed their love for each
other, Collom texted, “I just remember we need to keep everything a secret
we don’t want mama to find out.” Later, Servat texted, “When do u want to
see me[?]” Collom answered, “I would love to see you on the weekend but I
know you’re always with your mother and family [¶] Because me trying to get
down to the Bay Area on a weekday is going to be almost totally impossible



                                        5
and it’s going to take me hours to get there and hours to come back to go to
work the next day[.]”
      They made plans to meet later that week or early the following week.
Servat noted, “[I]f Friday doesn’t work, next Monday is good for me because I
don’t have school.” Collom replied, “Okay either way we’re going to do it now
I’m going to eat your pussy and I’m going to come inside you and don’t worry
if you can’t have kids I can’t have kids anymore so it’s going to feel great [¶]
It would be great if I can get Monday off but I can’t I can’t miss no more time
at work cuz I’m already in trouble but if I could we could have the whole day.”
Servat wrote, “I know that’s why Monday would be better[.]” Collom texted,
“Alright then Monday it is.” Servat added, “I don’t want kids right now, I’m
only 14 years old lol[.]” Collom explained, “No I’m saying you can’t have kids
with me cuz I don’t I’m negative I had my tubes tied years ago so I come
inside you you won’t get pregnant my sperm is negative [¶] Yeah you’re only
14 but you’re hot baby[.]”
      Over the next several days, the two exchanged messages in anticipation
of Collom’s visit. Servat told Collom that Briana lived in San Francisco. On
November 1, 2017, Collom wrote, “Yes baby I know you truly want to meet
me and fuck me and make love to me . . . . I will do my damndest to try to
show up there Monday after work but it’s going to be late when I get there . . .
.” He said he would leave Stockton after work at 4:30 p.m. and would then
drive the two hours to San Francisco. Collom sent the photo of an erect penis
he previously sent and added, “I truly believe my baby girl really wants to
feel this inside her and I will one love to give it to her and show her how
much she means to me I love you baby . . . .” Servat texted Collom a San
Francisco street address. After discussing what they planned to do when
they met, Servat asked, “How long can u stay on Monday[?]” Collom queried,



                                        6
“When is your mom coming home [¶] Stay as long as I can before your mom
comes home[.]” Servat texted, “Love you.” When Collom received it later, he
responded, “Well I just got your message sweetheart and I must say you are
the best and I know you love me and I know you want everything I said I just
wish it to hear from your own words I have to tell you you’re very mature for
your age you would say your 14 but you act like you’re 18 but I’m cool with
that . . . . yeah you are my girlfriend and my daughter oh my god I’ve died
and went to heaven[.]” Collom sent two photos of couples having sex.
      On November 4, 2017, Collom texted, “Well hello sexy no I love you and
I’m in love with you Brianna and I hope you real and I hope your true I
always wanted a relationship like this . . . .”
      On November 5, 2017, the day before Collom’s planned visit, they
exchanged dozens more texts. Servat wrote, “I can’t [wait] for you to hold me
tomorrow [¶] and to kiss you. . . .” He added a photo of a 15-year-old Bartel
in pigtails. Later, Collom asked Briana to call. Servat responded, “I can call
u tomorrow during school if that’s ok [¶] . . . [¶] I can either duck out of class
and call u or call u at my lunch[.]” At some point, Servat texted, “I want to be
your girl forever[.]” Collom replied, “And you will baby and hopefully when
you get older you can come to live with me[.]” Servat responded, “I would
love that [¶] But not for four years . . . [.]” Collom asked, “Why 4 years baby
you can leave home at 17 or 16 you’re old enough legally . . . [¶] . . . [I]f you’re
16 or 17 [] the law is really not going to force you go back home or anything
like that [¶] Yeah but when you’re at your age now and younger yeah they
have a say so but still a lot of people run away from home and never go back.
. . .” When they resumed texting that day, Collom inquired, “May I ask what
grade you are in and when is your birthday month day and year.” Servat
answered, “Ok love [¶] I’m in 9th grade[.]” Collom replied, “Oh your



                                         7
freshman [¶] I love . . . your first year in high school that’s the hardest[.]”
Servat added, “Bday is June 10th 2003.”
      At 2:32 a.m. on November 6, 2017, their planned meeting day, Collom
sent Briana the same erect penis photo he sent previously. Around 11:00
a.m., they talked on the phone. A female officer posed as Briana and
confirmed Collom’s visit. They arranged to meet.
      Around 4:30 p.m., Servat texted, “On your way love?” Collom
responded that he was already in San Francisco. Servat drove out to the
address he gave to Collom. A while later, Collom texted Briana that he was
around the block from her house. Servat saw Collom in his parked car
nearby. Collom was arrested and taken into custody. Officers searched
Collom’s car and seized a phone and a condom on the passenger seat. Servat
confirmed the phone was Collom’s. The seized phone contained the number
of Servat’s undercover phone with the label “Briana 14,” and recent text
messages on it matched those Servat had sent to Collom.
                                  Defense Case
      Collom testified he set up a Skout profile to meet women between the
ages of 18 and 45, not to date minors. When he registered, he had no idea
that minors were allowed on the site and he never had any previous online
encounters with minors on dating sites. He also believed Skout required
users to be 18 or older and somehow verified their ages. Through a
matchmaking feature, Skout suggested Collom’s potential match with
Briana.
      Collom believed Briana was 18 years old. Her profile said she was 18.
Based on her profile pictures, she looked 18. Also, “[t]he way she actually
engaged herself in the conversation texting to me was a lot more mature than
a 14 year old.” When Briana told him she was 14, he “figured she [was]



                                         8
playing with [him] or teasing [him] or playing some kind of role play or
something.” His text to her that stated “I am cool with what you got going
on. No problem” meant he understood Briana was older, wanted to role play,
and accepted it.
      He acknowledged that he fantasized about a woman pretending to be
younger and that he pretended to be her “daddy.” He described it as “[j]ust
like fantasizing like I am her daddy, and that’s my daughter or something
like that.” He was attracted to adult women acting like teenagers. He had
engaged in this type of fantasy role play with his second wife, who always
called him “daddy.” He had also engaged in such role play with other women
he met online, including on Skout. In those chats, which were submitted as
exhibits, a user whose profile indicated she was 31 years old referred to him
as “daddy” and he referred to himself as “daddy.” In another exchange, a
woman whose profile indicated she was 39 years old, told him she was “into
older m[e]n who ha[ve] a fetish with incest little girl,” to which he responded,
“Daddy is waiting.” In his mind, he was engaged in a similar “daddy-
daughter” role play with Briana. While they never openly discussed their
role play, they had veiled discussions about it.
      The first time he realized Briana must actually be 14 years old was
when he was arrested. Had he met with her and discovered she was only 14,
he never would have had sex with her.
      Dr. Elisabeth Sheff-Stefanik testified on Collom’s behalf as an expert
on sexuality and particularly unconventional sexual relationships. One of
the unconventional relationships she discussed was age play in which one
person pretends to be younger than they are while the other person retains
their chronological age. She explained, “It’s a very common sexual fantasy to
imagine oneself especially as younger.”



                                       9
      A common form of age play is parent-child role play, which involves a
power exchange where the older figure is endowed with authority. Daddy-
daughter role play can reflect that authority dynamic but is not always
construed as incest. In such scenarios, the player in the younger role will
often add details about parental disapproval or concern to make the fantasy
more real. In online interaction, people will sometimes slip into role play
without advance discussion.
      Many people begin exploring their sexual fantasies online because it is
the easiest place to obtain information and explore aspects of their sexual
identity that were previously unexplored in real life. Plus, if someone makes
a mistake online, the consequences are not as significant as in real life
because he or she can simply disengage.
                                   Rebuttal
      In rebuttal, Servat provided details about the contents of Collom’s
seized phone. Another officer had processed the phone and generated an
“extraction report” which summarized information found on it, including the
websites visited. Of the thousands of web searches in the report and texts
and photos, Servat flagged certain ones. One was called “nude teenagers in
bed together.” Other sites visited were called “16 Year Old Naked,” “Fucking
14,” “I’m a young girl attracted to older men relationship advice,” “Do older
men find 13 to 17 year old girls attractive,” and “13 year old having sex with
older men, family education.” There was also a google search for “16 year old
girls that live in Stockton want to have sex.”
                                 Jury Verdict
      The jury returned a mix of verdicts. Collom was found guilty on count
1 of meeting a minor for lewd purposes in violation of section 288.4 subd. (b),
on counts 2 and 3 for sending harmful matter to a minor in violation of



                                       10
section 288.2, subdivision (a)(2), and on count 6 for arranging a meeting with
a minor for lewd purposes in violation of section 288.4, subdivision (a)(1). On
counts 4 and 5, the jury rejected the greater charge of sending to a minor
matter depicting minors engaged in sexual conduct under section 288.2,
subdivision (a)(2), but found him guilty of section 313.1(a), a misdemeanor, as
a lesser included offense. Collom was found not guilty of count 7 (arranging a
meeting with a minor for lewd purposes) and count 8 (attempting to arrange
such a meeting). Collom appeals.
                                 DISCUSSION
               A. Sufficiency of the Evidence (Counts 4 and 5)
        Collom argues the evidence was insufficient to support his
misdemeanor convictions under section 313.1(a) as a matter of law.
        When sufficiency of the evidence is challenged, we “must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” (People v.
Johnson (1980) 26 Cal.3d 557, 562.) If there is substantial evidence to
support the verdict, “we must accord due deference to the trier of fact.”
(People v. Jones (1990) 51 Cal.3d 294, 314.) As such, we will not “reweigh any
of the evidence” and we will “draw all reasonable inferences, and resolve all
conflicts, in favor of the judgment.” (People v. Poe (1999) 74 Cal.App.4th 826,
830.)
        Section 313.1(a) states: “Every person who, with knowledge that a
person is a minor, or who fails to exercise reasonable care in ascertaining the
true age of a minor, knowingly sells, rents, distributes, sends, causes to be
sent, exhibits, or offers to distribute or exhibit by any means, including, but




                                       11
not limited to, live or recorded telephone messages, any harmful matter to
the minor shall be punished . . . .” (§ 313.1, subd. (a).)
      Collom contends section 313.1 can only apply to conduct involving an
actual minor, and because his convictions were premised upon his
communication with an adult police officer posing as a minor, he could not
have violated section 313.1(a). The People counter that section 313.1(a) “does
not require that the intended recipient of the harmful matter be an actual
minor as long as a defendant knows or believes that the other person was a
minor.” The parties have cited no case, nor have we found any, that directly
addresses whether section 313.1(a) is violated when the recipient of the
harmful matter is not a minor.
      Thus, Collom raises an issue of statutory interpretation. “Our
fundamental task in construing a statute is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute. [Citation.] We
begin by examining the statutory language, giving the words their usual and
ordinary meaning. [Citation.] If there is no ambiguity, then we presume the
lawmakers meant what they said, and the plain meaning of the language
governs.” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.)
      The elements of a section 313.1(a) misdemeanor are “(1) distribution ‘by
any means,’ (2) of ‘any harmful matter,’ (3) to a minor and (4) with knowledge
that the person is a minor or with a lack of reasonable care in ascertaining
the minor’s true age.” (People v. Jensen (2003) 114 Cal.App.4th 224, 244
(Jensen), italics added.) Under its plain meaning, the statute is violated only
where harmful matter has been distributed to a minor, not an adult posing as
one. It is undisputed that Servat, an adult police officer, posed as 14-year-old
Briana. Thus, Collom’s offensive texts and pictures were never sent to a
minor and his misdemeanor convictions under section 313.1(a) cannot stand.



                                        12
      Many sex offenses can be committed when defendants “believe” their
target victims are minors. For example, section 288.2, subdivision (a) states,
“Every person who knows, should have known, or believes that another person
is a minor, and who knowingly distributes . . . any harmful matter . . . is
guilty of a misdemeanor. . . . ” (§ 288.2, subd. (a), italics added.) Section
288.4 also contains similar qualifying language: “Every person who,
motivated by an unnatural or abnormal sexual interest in children, arranges
a meeting with a minor or a person he or she believes to be a minor for the
purpose of exposing his or her genitals or pubic or rectal area, having the
child expose his or her genitals or pubic or rectal area, or engaging in lewd or
lascivious behavior, shall be punished . . . .” (§ 288.4, subd. (a)(1), italics
added.) These statutes clearly provide culpability for defendants who believe
they are interacting with minor victims. Section 313.1(a) contains no similar
language that would allow Collom to be found guilty if he believed Briana
was a minor, and instead she turned out to be fictitious or an adult posing as
a minor.
      We are not persuaded by the People’s argument that no actual minor is
necessary for a conviction under section 313.1(a). Relying on Jensen, supra,
114 Cal.App.4th 1224, the People state, “Case law establishes that section
313.1 is a lesser included offense of section 288.2, in that it criminalizes
exhibiting harmful matter to a minor, but does not require the prosecution to
establish the defendant’s specific lewd intent as required for a conviction
under section 288.2.”2 Based on this syllogism, the People contend that


      2
        The People also rely on People v. Nakai (2010) 183 Cal.App.4th 499
(Nakai), to support this position. But Nakai reached no such conclusion. (Id.
at p. 507 [“For purposes of this opinion, we will assume without deciding that
section 313.1, subdivision (a) constitutes a necessarily included offense of
section 288.2, subdivision (a).”].)

                                         13
because section 288.2 allows a conviction based on “a reasonable belief” the
victim was a minor, so must section 313.1(a), its purported lesser included
offense. (See Jensen, supra, 114 Cal.App.4th at p. 243 [“A lesser offense is
necessarily included in a greater offense if . . . the statutory elements of the
greater offense . . . include all the elements of the lesser offense, such that the
greater cannot be committed without also committing the lesser.’ ”].)
      But when it identified section 313(a) as a lesser included offense of
section 288.2, Jensen was comparing section 313.1(a) to an earlier version of
section 288.2, subdivision (b) which had similar language. That earlier
version stated: “Every person who, with knowledge that a person is a minor,
knowingly distributes, sends, causes to be sent, exhibits, or offers to
distribute or exhibit by electronic mail, the Internet . . . or a commercial
online service, any harmful matter, as defined in section 313, to a minor with
the intent of arousing, appealing to, or gratifying the lust or passions or
sexual desires of that person or of a minor, and with the intent, or for the
purpose of seducing a minor, is guilty of a public offense . . . .” (Former §
288.2, subd. (b) [effective through Sept. 11, 2011].) Jensen did not determine,
and is not authority for the proposition, that section 313.1(a) is a lesser
included offense of section 288.2, subdivision (a), as currently drafted.
Collom was charged and tried under the current version of section 288.2,
subdivision (a), as amended in 2014 to criminalize behavior by a defendant
“who believes that another person was a minor.” (Stats.2013, c. 777 (S.B.145),
§ 2.) There was no similar amendment enacted for section 313.1(a), and
under the statutory elements test it is no longer a lesser included offense of
section 288.2, subdivision (a).
      Section 313.1(a) is also materially different from other sex offenses
which expressly include “attempt” within the statutory definition of the



                                        14
crime. For instance, 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 [a specified] offense . . . involving
the minor shall be punished . . . .” (§ 288.3, subd. (a), italics added.) Such
“attempt” language makes plain that the lack of an actual minor is not a
defense to an attempt to commit a sex offense against a minor. (People v.
Korwin (2019) 36 Cal.App.5th 682, 689.)
      In addition, Collom was not charged with attempting to violate section
313.1(a), or section 288.2, subdivision (a), the original charge brought against
him. The fact that Collom’s intended victim was a fictitious person or a police
officer posing as a minor does not mean he was innocent of a crime. Rather,
had attempt been charged and the jury so instructed, Collom could have been
found guilty of attempts to violate section 313.1(a). Hatch v. Superior Court
(2000) 80 Cal.App.4th 170 is instructive. There, the court rejected the
defendant’s argument that a necessary element of the charges under section
288.2, subdivision (a) was proof that the victims were minors. (Id. at p. 185.)3
Because the crime was charged as an attempt, “[th]e fact the prosecution
cannot show that Hatch’s intended victims were in fact under 14 years of age
[was] irrelevant to his culpability for attempting the charged crimes.” (Ibid.)
Thus, although Hatch’s intended victims were not in fact under the threshold
age and not even real people, he could still be guilty of attemping to violate
288.2 subdivision (a). Collom was not charged with attempts. He was
charged with violating section 288.2, subdivision (a) and convicted of
violating the purportedly lesser included offense of section 313.1(a). But


      3
       Hatch was prosecuted under the earlier version of section 288.2,
subdivision (a).

                                       15
section 313.1(a) is no longer a lesser included offense of section 288.2,
subdivision (a), and the absence of a minor victim means Collom did not
violate it.
      Had the Legislature intended to punish defendants who attempt to
distribute harmful matter to minors or individuals they believe to be minors,
it could clearly so state in section 313.1(a) like it has in sections 288.2 and
288.3. The prerogative rests with the Legislature to define crimes, and “[i]t is
up to the Legislature to implement any change that may be desirable.”
(People v. Nguyen (2000) 24 Cal.4th 756, 763-764.)
      Finally, in some circumstances, appellate courts can reduce convictions
for a crime to a lesser included offense, such as attempt, when the evidence
has not proven the completed crime. (See § 1181, subd. (6).) We will not do
so here. The People make no argument that section 1181 will authorize this
result, and as explained, section 313.1(a) is not a lesser included offense of
section 288.2. For this court to convict Collom of attempts to violate section
313.1(a) would be too attenuated in the circumstances in the absence of a
charge or instruction. (See People v. Bailey (2012) 54 Cal.4th 740, 753 [law of
attempt is complex and intricate, not subject to generalization]; People v.
Strunk (1995) 31 Cal.App.4th 265, 271 [trial court must instruct on lesser
included offenses and attempts when warranted by the evidence].)
                            B. Instructional Error
      Collom also argues that his remaining convictions must all be reversed
because the trial court’s instruction on mistake of fact improperly required
that his mistaken belief about Briana’s age had to be objectively reasonable.
He argues the court should have instead instructed the jury sua sponte that
the mistake of fact defense required his acquittal if he actually believed




                                        16
Briana was 18 or older, no matter how unreasonable that belief may have
been.
        “We review instructional error claims de novo.” (In re Loza (2018) 27
Cal.App.5th 797, 800.)
        “ ‘ “It is settled that in criminal cases, even in the absence of a request,
the trial court must instruct on the general principles of law relevant to the
issues raised by the evidence. [Citations.] The general principles of law
governing the case are those principles closely and openly connected with the
facts before the court, and which are necessary for the jury’s understanding of
the case.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)
“In the case of defenses, . . . a sua sponte instructional duty arises ‘only if it
appears that the defendant is relying on such a defense, or if there is
substantial evidence supportive of such a defense and the defense is not
inconsistent with the defendant’s theory of the case.’ ” (Id. at p. 157.)
However, when there is evidence to support the instruction, the trial court
should not measure its substantiality by weighing witness credibility and
should resolve any doubts as to sufficiency in favor of the defendant. (People
v. Barnett (1998) 17 Cal.4th 1044, 1145 (Barnett); see also People v. Cole
(2007) 156 Cal.App.4th 452, 484 [“ ‘The threshold is not high.’ ”].)
        A mistake of fact defense differs based on whether the charged crime
requires general intent, specific intent or knowledge of a requisite fact. For
crimes requiring a general criminal intent, the defendant’s mistaken belief
must be reasonable. For specific intent crimes, or crimes that include the
defendant’s knowledge as an element, a defendant’s unreasonable mistaken
belief is a defense so long as it is in good faith. (People v. Russell (2006) 144
Cal.App.4th 1415, 1425-1427 (Russell), disapproved on another ground in
People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14.)



                                          17
      The People do not dispute Collom’s contention that his remaining
convictions were for specific intent crimes. Section 288.2, subdivision (a)(2)
(counts 2 and 3) makes it a crime to send harmful matter to a minor with the
intent or purpose of seducing the minor. (§ 288.2, subd. (a)(2).) Section
288.4, subdivision (a)(1) (count 6) makes it a crime for a person to arrange a
meeting with a minor or a person he believes to be a minor for the purpose of
engaging in lewd or lascivious behavior. (§ 288.4, subd. (a)(1).) Section 288.4,
subdivision (b) (count 1) makes it a crime for the person to go to an arranged
meeting place at or near the arranged time to meet with the minor. (§ 288.4,
subd. (b).) Each of these crimes appear to require a defendant’s specific
intent to seduce a minor by sending harmful materials or intent to engage in
lewd or lascivious conduct with a minor by arranging a meeting. Thus,
Collom’s mistaken belief regarding Briana’s age could be a defense to the
crimes, even if it was unreasonable. (See Russell, supra, 144 Cal.App.4th at
pp. 1425-1427.)
      But the trial court gave the following mistake-of-fact instruction: “The
defendant is not guilty of all of the crimes charged in Counts 1 through 8, and
the lesser included offenses, if he reasonably and actually believed that the
other person was 18 or older. In order for reasonable and actual belief to
excuse the defendant’s behavior, there must be evidence tending to show that
he reasonably and actually believed that the other person was age 18 or
older. [¶] If you have a reasonable doubt about whether the defendant
reasonably and actually believed that the other person was age 18 or older,
you must find him not guilty of Counts 1 through 8 and the lesser included
offenses.” (Italics added.)
      Collom makes no claim that he objected to this instruction or requested
the court to omit the qualification that his mistaken belief had to be



                                       18
reasonable. Even so, we agree that there was enough evidence Collom
actually believed Briana was an adult to trigger the court’s sua sponte duty
to modify its instruction. (See Breverman, supra, 19 Cal.4th at p. 154.)
Collom testified repeatedly that he believed Briana was an adult and the two
were engaged in age-based role play. Moreover, he met Briana in the adult
community of a social network site which he believed verified users’ ages, and
Briana’s profile indicated she was 18 years old. Without assessing Collom’s
credibility and resolving doubts as to the sufficiency of the evidence in his
favor (Barnett, supra, 17 Cal.4th at p. 1145), the jury should not have been
instructed that any mistaken belief he had about Briana’s age must have
been reasonable.
      We next consider whether the trial court’s instructional error was
prejudicial. The parties dispute the harmless error standard we must apply.
Collom argues the instruction violated his constitutional rights by lessening
the prosecution’s burden of proof and must be reviewed under the standard
articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman). Under
Chapman, an error is reversible unless the reviewing court can say, beyond a
reasonable doubt, the error did not contribute to the conviction. (Id. at p. 24.)
The People argue instructional error should be reviewed under the less
stringent harmless error standard in People v. Watson (1956) 46 Cal.2d 818
(Watson).) Under Watson, the error is prejudicial unless the reviewing court
can say there is no reasonable probability the jury would have reached a
more favorable verdict if the instruction had been properly given. (Id. at p.
836.) We need not decide which standard to apply in this case because the
error is harmless under even the Chapman standard. There is no way the
error in the instructions contributed to Collom’s convictions.




                                       19
      The evidence that Collom really believed Briana was 14 years old was
plentiful and compelling. Even though Briana’s profile appeared in Skout’s
adult community, Servat told Collom when he began chatting as Briana, “I
am not 18.” Servat repeatedly told Collom that Briana was 14 years old.
When Collom asked about Briana’s birthday, Servat said she was born in
2003, which made her 14 years old at the time. Servat emphasized Briana’s
age by explaining she was a high school freshman living with her mother.
And except for one, all of the photos sent to Collom that purported to be
Briana depicted a girl between 12 and 15 years old.
      Moreover, Collom’s conduct revealed his belief that Briana was 14
years old. While he commented repeatedly that he found Briana mature, he
never disputed she was 14 and acknowledged her age multiple times.
Collom’s texts reflected he understood Briana was a high school freshman,
and certainly not 18 or older. Other actions also showed he knew he was
engaging with a 14-year-old. When he and Servat first began texting, Collom
suggested Briana lock her phone so her mother could not see his messages.
Despite great difficulty, he made it a point to travel two hours to visit Briana
on a weekday during a window in time when her mother was supposed to be
working and she could be avoided. The content and browsing history of
Collom’s cell phone also corroborated his interest in minor girls. This was
more than sufficient evidence to support the jury’s guilty verdicts.
      Most of the evidence Collom relied on for his defense that he believed
Briana was an adult engaged in age-based role play was not convincing.
Collom suggested that his exchange with Briana when they discussed the
discrepancy between her age on her Skout profile and her stated age to him
set up their game. At the time he responded, “I am cool with what you got
going on. No problem.” But this statement is too ambiguous to warrant the



                                       20
meaning ascribed by Collom. Given his other testimony, it is equally if not
more probable the jury would have viewed this statement as Collom’s
acceptance of her minority age, or his enthusiasm over a 14-year-old who
would lie about her age to meet older men like him. More telling was the fact
that Servat and Collom exchanged hundreds, possibly over a thousand texts,
and not a single one ever discussed role play.
      Collom’s evidence that he had engaged in age-based role play before to
suggest his experience with Briana was simply more of the same was also not
persuasive. Simply being called “daddy” by an ex-wife, referring to himself as
“daddy,” or engaging in fantasy talk with a woman who admitted to being an
adult, was not akin to the highly sexualized exchanges between Collom and a
girl he met online who said she was 14 years old in every direct
communication with him.
      Thus, we can conclude beyond a reasonable doubt that any
instructional error did not contribute to Collom’s convictions. The evidence
that Collom actually believed Briana was 14 years old, and not an adult
playing a 14-year-old, was too strong.
              C. Minute Order and Abstract of Judgment
      At sentencing for counts 2 and 3 under section 288.2, subdivision (a)(2),
the trial court found Collom entertained a single criminal intent to seduce a
person he believed was a minor and both counts were part of an indivisible
course of conduct. Thus, the court applied section 654. Under that provision,
“An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (§ 654.) When section
654 applies, the proper procedure is to pronounce the sentence and then stay



                                         21
it. (People v. Jones (2012) 54 Cal.4th 350, 353.) The court imposed a two-
year term on count 3 to run concurrent to the sentences imposed on counts 1
and 2, and then stayed the sentence on count 3 pursuant to section 654. The
clerk’s minute order and abstract of judgment do not show the sentence on
count 3 was stayed. Collom says it should be amended.
      On count 6 the court sentenced Collom to six months in county jail for
violation of section 288.4, subdivision (a)(1). The minute order, however,
indicates a term of “365 days” for this conviction. Collom contends the
minute order does not reflect the six-month jail term imposed on count 6 and
should also be amended.
      On both points, the People agree, and so do we. (See People v. Zackery
(2007) 147 Cal.App.4th 380, 385 [where a discrepancy exists between oral
pronouncement of judgment and a minute order or abstract of judgment, the
oral pronouncement controls].) Accordingly, the October 19, 2018 clerk’s
minute order and the abstract of judgment shall be amended to reflect the
sentence for count 3 is stayed pursuant to section 654 and the jail term
imposed on Count 6 is six months.4
                                DISPOSITION
      We reverse the misdemeanor convictions under section 313(a) (counts 4
and 5). In addition, the trial court is ordered to correct the October 19, 2018
sentencing minute order and the abstract of judgment to indicate Collom’s
sentence on count 3 is stayed and his sentence on count 6 is six months. In
all other respects, the judgment is affirmed.




      4
       Collom also contends the sentences for his count 4 and 5 misdemeanor
convictions need to be corrected. In light of our reversal of these convictions,
we need not amend or address his sentences under those counts.

                                       22
      The trial court shall prepare a corrected and amended abstract of
judgment and forward it to the Department of Corrections and
Rehabilitation.




                                     23
                                 _________________________
                                 Siggins, P.J.


WE CONCUR:


_________________________
Petrou, J.


_________________________
Jackson, J.




People v. Collom, A155688



                            24
Trial Court:                                    City & County of San Francisco Superior
                                                Court


Trial Judge:                                    Hon. Christopher C. Hite


Counsel:


Cynthia Diane Jones, First District Appellate Court under appointment of the Court of
Appeal for Appellant.


Xavier Becerra, Attorney General, Lance A. Winters, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Bruce Ortega, Deputy Attorney
General, Julia Y. Je, Deputy Attorney General for Respondent.




                                           25
