”Harmful Matter” Legal Definition

Penal Code Section 313 defines "'harmful matter'" as "matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." (§ 313, subd. (a).)

This definition "essentially 'tracks' the three-prong test for obscenity articulated by the United States Supreme Court in Miller v. California (1973) 413 U.S. 15," adding that the lack of serious artistic, political or scientific value must be evaluated with regard to minors. (People v. Dyke (2009) 172 Cal.App.4th 1377, 1382-1383.)

"As to the first two prongs of the test for harmful matter, nothing in section 313 indicates that the 'average person' applying 'contemporary statewide standards' is anything other than an average adult applying adult standards, or that the determination of whether sexual conduct is depicted or described in a patently offensive way should be made using anything but adult standards." (Dyke, supra, at p. 1383.)

"In order to determine whether a portrayal of sex is patently offensive to the average adult, 'a reviewing court must, of necessity, look at the context of the material, as well as its content.' " (Dyke, supra, 172 Cal.App.4th at p. 1385.) "The question of what is '"patently offensive"' under the community standard obscenity test is essentially a question of fact. " (Id. at p. 1384.)

Penal Code Section 288.2, subdivision (a) makes it a crime for an individual to knowingly exhibit "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 . . . ." Defendant claims there was insufficient evidence that he exhibited "harmful matter" to A.F. and that he intended to "seduce" her, two of the elements of section 288.2, subdivision (a).

In determining the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Valdez (2004) 32 Cal.4th 73, 104.) We presume the existence of every fact in support of the evidence that the trier of fact could deduce from the evidence, including reasonable inferences based on the evidence. (People v. Lee (1999) 20 Cal.4th 47, 58.)

Inferences reasonably deducible from the evidence constitute substantial evidence. The inferences need not be the only ones the evidence supports, and the evidence of the ultimate fact in question need not be strong. (People v. Wharton (1991) 53 Cal.3d 522, 546; People v. Johnson (1980) 26 Cal.3d 557, 576.)

In People v. Dyke (2009) 172 Cal.App.4th 1377, the 16-year-old minor testified that, while she was at the house of a friend, the defendant, who was her friend's father, displayed what she referred to as "pornography" on the television while flipping through the channels. The minor remembered seeing a naked woman dancing for somewhere between one and eight minutes and, for around 45 seconds, the upper bodies of a naked man and woman who were "'having sex'" with the woman "on top." The defendant stated to the minor: "'"I shouldn't have this on because then you will have funny dreams and feel funny."'" After the minor went to bed, defendant came in, rubbed her breast, kissed her mouth and asked her if she was "horny." In addition to being convicted of section 288.2, subdivision (a), the defendant was found guilty of misdemeanor sexual battery. (Dyke, supra, 172 Cal.App.4th at pp. 1380-1381, 1385.)

The appellate court held the evidence was insufficient to establish that the television images constituted "harmful matter" for purposes of section 288.2, subdivision (a), noting that "nudity alone" and "portrayals of sexual activity" are not per se obscene, even as to minors and "even if they may be characterized as 'dismally unpleasant, uncouth, and tawdry.'" (Dyke, supra, 172 Cal.App.4th at pp. 1384-1385.)

The court cited United States Supreme Court authority stating: "'An essential First Amendment rule is: The artistic merit of a work does not depend on the presence of a single explicit scene.'" (Id. at p. 1386.) The court observed that, "in order to determine whether a portrayal of sex is patently offensive to the average adult, 'a reviewing court must, of necessity, look at the context of the material, as well as its content'" and the record before it was missing "any context" from which it could be determined whether what was depicted was patently offensive to the average adult. (Id. at p. 1385.)

The court concluded that, "without more, neither we nor the jury are permitted to presume that such content a nude woman dancing and a naked couple having sex, shown from the waist up is patently offensive to the average adult, applying statewide community standards." (Ibid.)

The court found the minor's reference to "pornography" equally lacking in evidentiary weight without any testimony "as to what she meant by that term, or how broadly it may have been intended." (Ibid.), fn. 5; see also People v. Powell (2011) 194 Cal.App.4th 1268, 1291 (Powell).) It noted additionally: "It is not the minor's opinion that matters; the sexual conduct depicted must be judged patently offensive under a single contemporary statewide standard." (Dyke, supra, 172 Cal.App.4th at p. 1385, fn. 5.)

In People v. Powell (2011) 194 Cal.App.4th 1268, the defendant was convicted of raping his daughter (who was 10 years old or younger) and exposing her to pornographic movies. (Id. at p. 1274.) With regard to the movies she was shown, the victim testified they depicted "girls and boys" with their penises and vaginas exposed, and they would engage in sexual activity. (Id. at pp. 1284-1286.)

She also described the man in these movies uncovering his penis and "'putting his penis in the vagina,'" but the penis was obscured by pixelization. (Id. at p. 1286.) Then they would have sex, which she could see and hear them perform. (Ibid.)

In evaluating the sufficiency of the evidence as to section 288.2, the appellate court noted that "nudity or depictions of sexual intercourse or other sexual activity do not, by themselves, make a movie obscene." (Powell, supra, 194 Cal.App.4th at p. 1291.)

The court noted that in Miller, the Supreme Court held "'no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed.' " (Powell, supra, 194 Cal.App.4th at p. 1293.)

The court in Powell observed: "Miller makes plain that 'hard-core pornography is synonymous with obscene pornography.' 'Based on Miller, the law distinguishes between hard-core pornography and soft-core pornography, which involves depictions of nudity and limited and simulated sexual conduct. Because it is not as graphic or explicit as hard-core pornography, soft-core pornography is protected under the First Amendment.' " (Powell, supra, at p. 1293.)

The appellate court in Powell concluded that, for the most part, the victim's description of the movies she was shown was insufficient to determine whether the material was "obscene." (Powell, supra, at p. 1293.)

However, the victim's description of seeing a movie depicting people engaged in sexual activity in which "penises, breasts, and vaginas were featured in lewd displays" was sufficient to satisfy the "harmful matter" element of the offense. (Id. at p. 1295.)