People v. Goerzen CA5

── People v. Goerzen CA5 ── Court: California Court of Appeal Date: May 28, 2026 Category: General Filed 5/28/26 P. v. Goerzen CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F088874 Plaintiff and Respondent, (Super. Ct. No. F24900703) v. DAVID GOERZEN, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Fresno County. James A. Kelley, Judge. Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Christopher J. Rench and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  INTRODUCTION David Goerzen exchanged sexual chat messages with girls purporting to be minors, asking them to touch themselves and/or asking them to elicit others to touch them while he was chatting with them and to describe the touching to him. Defendant was arrested after a tip was received from Microsoft and sent to the National Center for Missing and Exploited Children (NCMEC), which local law enforcement investigated. After a court trial, defendant was found guilty of two counts of attempted lewd or lascivious acts on a minor (Pen. Code, §§ 288, subds. (a), (c)(1), 664; counts 1 & 2)1; two counts of contact or communication with a minor with intent to commit a sexual offense (§ 288.3, subd. (a); counts 3 & 4); and one count of possession of child pornography with a prior offense allegation (§ 311.11, subds. (a), (b); count 5). Defendant admitted four prior strike convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)– (i), 1170.12, subds. (a)–(d)) for lewd or lascivious acts on a minor (§ 288, subd. (a) (section 228(a)). Defendant was sentenced as a third-strike offender (§ 667, subd. (e)(2)(A)) to an aggregate term of 75 years to life as follows: 25 years to life for count 1 (§§ 664/288(a)); a consecutive term of 25 years to life for count 2 (§§ 664/288, subd. (c)(1) (section 288(c)(1)); and a third consecutive term of 25 years to life for count 5 (§ 311.11, subd. (a)). Execution of the 25-year-to-life sentences for counts 3 and 4 was stayed under section 654. On appeal, defendant argues there is no substantial evidence to support the attempt convictions under section 288 (counts 1 & 2) because the prosecution did not prove defendant was chatting with humans, let alone minor children. To establish an attempted violation of section 288, the prosecution is not required to prove defendant, in fact, chatted/messaged minor children online—it is sufficient if defendant believed he was 1 All further statutory references are to the Penal Code unless indicated otherwise. 2. messaging with minor children. Here, there is substantial evidence to support the convictions for attempted violation of section 288(a) and section 288(c)(1). FACTUAL BACKGROUND In February 2024, an information charged defendant with two counts of attempted lewd or lascivious acts on a child (§§ 288, subds. (a), (c)(1), 664; counts 1 & 2), two counts of contact with a minor for