Conviction for PC 288.3 If the Minor Is 2,000 Miles Away?
At the time, JD was at a boarding school and “horribly home sick.” Shapiro told JD that he was 16 and claimed his name was Todd Christopher Elliott. Shapiro sent JD photos of a young man that he said was him. JD told “Todd” she was 14.In a Nutshell: Can a Person Be Convicted of Contacting a Minor for Purposes of Committing Sexual Penetration (Penal Code § 288.3 (a)) if the Minor Is 2,000 Miles Away?
Shapiro sent her flowers. In response, JD sent “Todd” a drawing of him. By the time JD was 15, they were chatting every day for an average of three hours per day. By the time JD was 16, the two were saying “I love you” to each other and using pet names. JD had no idea that Shapiro was 45 years her senior.
Shapiro, apparently aware that the age of consent in Indiana is 16, then began sending JD links to pornographic videos. They would then watch the videos together and they would describe to each other the sexual acts they wanted to perform on each other. Shapiro was still in California and JD was still in Indiana.
JD’s family did not know about these conversations, but during a weeklong family vacation, she spent almost the entire time on a cell phone chatting with “Todd Elliott.” JD then sued her father to get information about her trust fund, which prompted the parents to look into “Todd Elliott;” finding it was actually Shapiro.
When JD was told who “Todd Elliott” really was, she continued talking to him because, in her words, “I loved him and I told him it didn’t matter how old he was.”
In January, 2010, the Huntington Beach Police searched JD’s house and found computer files with images of a nude female with JD’s name on it.
The Orange County District Attorney filed a complaint against Shapiro, alleging he violated Penal Code § 288.3(a), which prohibits contacting a minor for purposes of various crimes, including sexual penetration (§ 289(h)).
Shapiro filed a demurrer to the complaint, alleging JD was not a minor because the age of consent in Indiana is 16 years old, and that, in any event, he could not have caused the sexual penetration from thousands of miles away.
The trial court denied the demurrer, stating that Shapiro’s seduction of JD under false pretenses, with his repeated suggestions that she masturbate, satisfied the statutory elements of intending to participate in causing sexual penetration. Moreover, even if she was an adult for purposes of Indiana law, she was a minor for purposes of applying California law.
The trial court judge denied the motion and Shapiro took the case all the way through to a jury trial. He lost. The judge sentenced him to five years of formal probation, with many conditions, including that he serve 240 days in the Orange County jail.
Shapiro appealed to the Fourth Appellate District, which in People v. Mark Irving Shapiro (2014 DJDAR 9683), affirmed the trial court.
The appellate court rejected Shapiro’s argument that he could not be guilty of participating in an act of sexual penetration because he did not intend to participate in the act. The court commented that Shapiro took too narrow view of the law, as physical participation is not required. Indeed, subdivision (k) of Penal Code § 289 includes causing another person to accomplish the penetration.
Shapiro then argued that his act of merely inviting her to penetrate herself or encourage it was not a crime. In response to this, the appellate court strongly rejected such a defense, noting that Shapiro and ingratiated himself with JD by false pretenses, nurturing a strong relationship, had built trust.
Lastly, Shapiro argued that JD was not a minor for purposes of California law. The court noted that for purposes of California law, a minor is anyone under 18 years of age (Family Code § 6500; People v. Yuksel (2012) 207 Cal. App. 4th 850, 853). However, the court made it clear that it was not applying Indiana law for purposes of punishing JD as a minor. It was punishing Shapiro for contacting someone under age 18 while he was in California. Thus California law applied to his conduct and the age of the victim.
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