P v. Fromuth (6th) The Phrase "Motivated By", In PC 288.4, Means "Substantial Factor".

Mr. Fromuth, 30 years old, was surfing the Craigslist category "casual hookups/NSA" when he saw a posting by an attractive woman in his hometown.  The posting did not specify the poster's age.  Fromuth replied to the posting, whereupon the poster identified herself as being 15 years old.  Fromuth then warned the poster to be careful due to her age and asked if perhaps she would like to do something else that day other than "hookup".  She failed to respond.

Fromuth contacted the poster again.  After much online communication, Fromuth and the poster arranged a meeting.  Fromuth would bring "protection" because the poster was not on birth control and he assured his bed was not noisy and that he would perform pre-coitus oral sex on her to ensure a comfortable experience.  

When Fromuth arrived at the poster's home to pick her up he found out that the 15-year old female with whom he had arranged a "hookup" was actually a middle-aged Monterey County Sheriff's Sergeant.  Fromuth was arrested and charged with, among other crimes, violating PC 288.4.

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 . . . engaging in lewd or lascivious behavior” and “who goes to the arranged meeting place at or about the arranged time” commits a felony.

A jury convicted Fromuth of this count and Fromuth appealed.  The Sixth District, agrees with Fromuth's statutory interpretation of 288.4, but affirms the conviction.

The interpretation at issue is that of the words "motivated by".  Fromuth argues this phrase means "substantial factor", meaning a conviction for violating 288.4 requires a jury find that an "unnatural or abnormal sexual interest in children" was a substantial factor in the defendant arranging the meeting.  The Sixth District agrees, examining cases involving "hate crime" statutes that equated the phrase "motivated by" with the phrase "because of", a phrase interpreted to mean a "substantial factor".  

However, it is a Pyrrhic victory for Fromuth.  The panel holds that there was substantial evidence presented to the jury that Fromuth had an abnormal sexual interest in children and that same was a "substantial factor" in plans to meet a 15-year old girl.  Neither was the trial sua sponte required to give a "substantial factor" instruction.  

Fromuth's last shot was to argue the court erroneously denied his requested instruction regarding entrapment.  This misses the mark also, says the panel.  The good Sergeant did nothing at his keyboard other than provide an opportunity for Fromuth to arrange the illegal tryst.  Notably, when Fromuth learned "Maria" was 15 and suggested they do something other than "hookup", the Sergeant stopped communicating with Fromuth.  The communications resumed only because Fromuth, unprompted, re-initiated the "hookup" dialogue with "Maria".

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