Dyke

Defendant David Lawrence Dyke appeals a judgment entered upon a jury verdict finding him guilty of sending or exhibiting harmful matter to a minor (Pen. Code, § 288.2, subd. (a); count I) and misdemeanor sexual battery (§ 243.4, subd. (e)(1); count II). The court sentenced defendant to the two-year midterm on count I and stayed sentence on count II. We conclude the record does not contain sufficient evidence to support a factual finding that the television scenes that were shown to the minor constituted “harmful matter” within the current meaning of section 288.2, subdivision (a). Accordingly, we shall reverse the conviction as to count I and remand for resentencing.

I. FACTS

A.S., a 16-year-old high school sophomore, was on her school’s wrestling team. She became close friends with her teammate D.D., defendant’s daughter. Defendant helped out with the wrestling team. He started coaching A.S. and taking her to tournaments.

On January 28, 2005, defendant and A.S. drove to defendant’s home after a wrestling tournament. A.S. was to sleep at defendant’s home because he was going to take her to the second day of the tournament the next day. When they arrived, D.D. was the…