Jensen

Defendant was convicted by jury trial of nine counts of attempted distribution or exhibition of harmful matter to a minor over the Internet (Pen. Code, §§ 288.2, subd. (b), 664). He admitted that he had suffered six prior serious felony convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defendant was committed to state prison to serve a determinate term of three years consecutive to an indeterminate term of 25 years to life. On appeal, he claims that the trial court prejudicially erred in (1) defining the “intent or purpose of seducing” element of the offenses, (2) defining the “harmful matter” element of the offenses, (3) failing to instruct on the lesser offense of attempted misdemeanor distribution of harmful matter and (4) giving the 2000 version of CALJIC No. 2.50.01. He also claims that his sentence constitutes cruel and unusual punishment. We agree with defendant’s first contention and reverse the judgment.

I. Factual and Procedural Background

The “Child Exploitation Detail” of the “Sexual Assault Investigative Unit” of the San Jose police department is composed of several police officers who, among other things, “go…