Opinion
A151474
11-30-2018
THE PEOPLE, Plaintiff and Respondent, v. NICHOLAS JAMES PERRY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-652184)
Following a jury trial, defendant Nicholas James Perry was convicted of arranging to meet with a minor for sexual purposes and attempting to distribute harmful matter to a minor for sexual purposes. Defendant raises various procedural challenges to the trial proceedings, including the exclusion of certain expert testimony and instructional errors, alleges ineffective assistance of counsel, and disputes the court's denial of his motion for new trial. We conclude defendant's arguments lack merit and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged by information with unlawfully arranging to meet a person defendant believed to be a minor for purposes of engaging in lewd and lascivious behavior and going to the arranged meeting place at or around the arranged time (Pen. Code, § 288.4, subd. (b); count I), attempting to distribute harmful matter to a minor with the intent of arousing sexual desire (§§ 664, 288.2, subd. (a); count II), and attempting to communicate with a minor with the intent to commit a sexual offense (§§ 664, 288.3, subd. (a); count III).
All statutory references are to the Penal Code unless otherwise specified.
In 2014, Santa Rosa Police Detective Christopher Mahurin and Sonoma County Sheriff's Detective Mechelle Buchignani participated in an undercover investigation to identify individuals who were attempting to solicit sex from minors. Mahurin posted an advertisement on the Internet site, myRedBook.com. In that advertisement, Mahurin posed as an underage girl. The advertisement contained three nude photographs, which were described as depicting the decoy minor's 18-year-old sister.
Mahurin subsequently received a text message from defendant's telephone number asking, "Can I see you two?" In one of the first text exchanges, Mahurin wrote, "My sis is 18 I'm younger. U cool? U a cop?" Defendant responded, "I'm not a cop and yes I want you both!!!" Mahurin then texted, "I don't send pics cuz I'm 13 and don't want cops lookin where they don't need 2." Mahurin testified he always provides the age of the decoy minor very early in the operations to ensure there is no confusion over the age of the decoy and what the responding individual is looking for. Mahurin further testified in most investigations disclosure of the age will either terminate the conversation or result in the responding individual flagging the ad for removal or threatening to call the police. Here, however, defendant responded by asking if they will do "Bareback" and stated, "I like to fuck deep and hard!!! Can u both take a huge cock?" Mahurin and defendant then exchanged numerous texts, including one from defendant containing a picture of an erect penis and the phrase "For u both" and one from defendant containing two pictures of nude male torsos and genitalia and the comment "cmon and show uour [sic] daddy what he is going to fuck!!! Please baby." After defendant texted, "It's just scary u are so young and I haven't seen a pic," and repeatedly requested a photo of "my little girl" and "that tiny body and ass," Mahurin sent a photograph to defendant of a woman's back and buttocks in a shirt and spandex shorts.
Defendant made two telephone calls to the decoy telephone number. Defendant first spoke with Buchignani to confirm the meeting location. He then spoke with Buchignani a second time to inquire whether she was affiliated with law enforcement. Shortly thereafter, defendant arrived at the agreed upon location and knocked on the motel room door. Law enforcement then arrested defendant.
Following defendant's arrest, he was interviewed by Mahurin. Defendant stated he was at the motel to meet "Some girl" he had met on "Redbook." When Mahurin asked what her age was, defendant responded, "I know she's young." Mahurin then asked, "How young is young?" and defendant stated, "I think maybe she said like thirteen or something." Defendant stated he brought $200 with him.
At trial, defendant testified he considered myRedBook.com an adult Web site for prostitution and fantasy. He noted the Web site contained a disclaimer stating anyone using it would be 18 or older. Defendant further testified he previously used the Web site for fantasy conversations and a "rush," but never actually engaged in sex. Defendant stated he believed both the photographs in the advertisement and the photograph texted to him by Mahurin depicted adult women. Defendant repeatedly testified he believed he was communicating with an adult prostitute, he believed any references to a 13-year-old girl was fantasy role-play, and he had no sexual interest in minors.
The jury found defendant guilty of unlawfully arranging a meeting with a minor for the purpose of engaging in lewd and lascivious behavior and attempting to distribute harmful matter to a minor with the intent of arousing the minor's sexual desire (counts I and II). However, the jury was deadlocked on whether defendant attempted to communicate with a minor with the intent of committing a sexual offense (count III).
Prior to sentencing, defendant filed a motion for new trial. He raised numerous arguments, including (1) the People failed to prove count I beyond a reasonable doubt; (2) there was insufficient evidence to show defendant believed the decoy minor was actually a minor; (3) the trial court's limitation on his expert's testimony denied him a fair trial and due process; (4) the court erred in failing to instruct on CALCRIM No. 1126; (5) the jury instruction on expert witness testimony misled the jury; (6) the court erred in failing to instruct on the requirement of independent evidence of a charged crime; (7) the court erred in failing to instruct on entrapment; (8) the court erred in failing to instruct on the requirement that an unnatural or abnormal sexual interest in children be a substantial motivation; (9) defendant was denied effective assistance of counsel; and (10) the cumulative effect of the instructional and evidentiary errors warrant a new trial. The court denied the motion and sentenced defendant to an aggregate term of two years in state prison. Defendant timely appealed.
Defendant was sentenced to two years on count I and four months on count II. The court stayed the count II sentence pursuant to section 654.
II. DISCUSSION
Defendant raises various challenges to his jury verdict. First, defendant contends the trial court improperly limited the testimony of Dr. Sylvia Shirikian, defendant's expert witness. Next, defendant claims the trial court erred by (1) failing to instruct on good faith belief regarding the decoy's age in connection with CALCRIM No. 1126, (2) including extraneous language in CALCRIM No. 332, (3) omitting a corpus delicti instruction, and (4) failing to instruct that the "motivated by" element in section 288.4 must be a substantial factor in the commission of the offense. Finally, defendant asserts an ineffective assistance of counsel claim and contends the trial court erroneously denied his motion for new trial. We address each argument in turn. A. Expert Testimony
The trial court excluded Shirikian from testifying about either defendant's statements to her or defendant's intent in communicating with and attempting to meet the decoy. Defendant contends such testimony was proper and should not have been excluded. We disagree.
1. Background
Prior to trial, the People filed a motion in limine to exclude Shirikian's testimony in its entirety. Alternatively, the People requested Shirikian be prohibited from providing any opinion testimony attributed to statements made by defendant. Following an Evidence Code section 402 hearing, the court concluded Shirikian would be allowed to testify as an expert. The court specifically noted she could testify as to her ultimate opinion and identify the basis for that opinion. However, Shirikian could not "convey or testify to or . . . state any of the statements made to her by the defendant . . . ." The court, citing People v. Yuksel (2012) 207 Cal.App.4th 850, found allowing such testimony would permit defendant to introduce testimony without allowing the prosecution an opportunity to cross-examine.
Prior to Shirikian's testimony, the court again heard argument from the parties regarding the scope of her testimony. The court reaffirmed and clarified its prior ruling. The court explained Shirikian could not testify as to (1) defendant's belief regarding the decoy's age, or (2) defendant's intent or motivation in communicating or attempting to meet the decoy. However, Shirikian could testify as to whether she believed defendant had an unnatural or abnormal sexual interest in children.
Shirikian subsequently testified for the defense at trial. Shirikian provided background information regarding her training as a clinical and forensic psychologist. Shirikian testified she interviewed defendant for approximately six hours over two days, during which she conducted psychological testing and a clinical interview, which involved eliciting extensive personal information and a thorough sexual history. Shirikian discussed two separate psychological tests she administered to defendant, how they were administered, and their reliability. In addition to her interview and psychological testing, she also noted she reviewed and based her opinion on the police reports, the criminal complaints, and various text messages provided to her. Based on this assessment, Shirikian testified defendant "does not meet criteria for a pedophile, pedophilic disorder, and he does not have an abnormal or unnatural interest in children." Shirikian also explained the clinical definition of pedophilia and what conduct would meet that definition.
Defense counsel then posed a hypothetical regarding whether role-playing with an adult constituted a pedophilic act. Shirikian responded, "No. Role-play is a totally different and separate non-deviant sexual category." She further explained why role-playing differed from an abnormal sexual interest in children.
On cross-examination, the prosecution presented various hypotheticals regarding whether seeking sex from, and attempting to meet, a 13 year old would be consistent with someone who has an unnatural sexual interest in children. Defense counsel asserted an objection to the first hypothetical. Following a discussion in chambers, the court ruled such hypotheticals were appropriate because they were based on evidence in the record. Specifically, the court noted the age of 13 already had been presented to the jury and could thus be incorporated into hypotheticals. Upon resumed examination, Shirikian agreed attempting to seek sex from a minor would constitute an unnatural sexual interest in children. But she conditioned her response on whether the person actually knew he was meeting a minor.
On redirect, defense counsel sought to ask a hypothetical regarding an adult meeting someone he believed was pretending to be 13 years old. The prosecution objected and, once again, a discussion ensued in chambers regarding the validity of the objection. The court concluded circumstantial evidence supported the hypothetical and defense counsel could proceed with the question. However, defense counsel did not ask the approved hypothetical when trial resumed and instead solicited further testimony regarding the psychological tests.
Following further cross-examination, defense counsel then asked Shirikian whether role-play involving an adult pretending to be 13 could constitute a pedophilic act. The prosecution objected to the hypothetical as beyond the scope of the preceding cross-examination, and it was sustained by the court.
2. Analysis
"An expert may rely on otherwise inadmissible hearsay evidence provided the evidence is reliable and of the type that experts in the field reasonably rely upon in forming their opinions. [Citations.] On the other hand, an expert's reliance on hearsay does not automatically make the hearsay evidence itself admissible. 'An expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably . . . be relied upon" for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, " 'under the guise of reasons,' " the expert's detailed explanation " '[brings] before the jury incompetent hearsay evidence. [Citation.]' " [¶] Because an expert's need to consider extrajudicial matters, and a jury's need for information sufficient to evaluate an expert opinion, may conflict with an accused's interest in avoiding substantive use of unreliable hearsay, disputes in this area must generally be left to the trial court's sound judgment. [Citations.] . . . [¶] . . . In such cases, Evidence Code section 352 authorizes the court to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value. [Citation.]' [Citation.] We review the court's decision for abuse of discretion." (People v. Yuksel, supra, 207 Cal.App.4th 850, 856-857 (Yuksel).)
We find Yuksel, supra, 207 Cal.App.4th 850, and People v. Miller (2014) 231 Cal.App.4th 1301 (Miller), persuasive. In Yuksel, the defendant was convicted of arranging to meet with a minor for sexual purposes. (Id. at pp. 852-853.) A psychologist specializing in sexual offenses testified as an expert and stated he found no evidence the defendant was a pedophile or had an unnatural or abnormal interest in children. (Id. at p. 855.) The expert based this opinion on interviews with the defendant, psychological tests, and a review of the police file. (Ibid.) When explaining the basis for his opinions, the expert sought to testify the defendant had never previously sought sexual contact with a minor. (Id. at pp. 855-856.) The prosecutor objected to this line of questioning, and the court sustained the objection. (Id. at p. 856.) On appeal, the defendant argued the court erred in excluding such testimony because it was relevant to prove he lacked the propensity to commit the offense. (Ibid.) The Court of Appeal rejected this claim. The court acknowledged an expert may rely on inadmissible hearsay and may explain the reasons for his opinions, but noted " 'prejudice may arise if, " 'under the guise of reasons,' " the expert's detailed explanation " '[brings] before the jury incompetent hearsay evidence.' " ' " (Ibid.) The court concluded the trial court did not abuse its discretion because it "appear[s] to have barred only appellant's hearsay statements to the psychologist that appellant's offense . . . was an isolated incident, statements which we infer the court deemed to be unreliable under the circumstances." (Id. at p. 857.) The court noted the expert was allowed to testify why he believed the defendant was not a pedophile, describe the requirements for finding pedophilia, and explain a " 'single incident' of sexual contact with a minor does not qualify as pedophilia." (Ibid.)
Similarly, in Miller, supra, 231 Cal.App.4th 1301, the trial court excluded the defense expert psychologist from disclosing certain out-of-court statements by the defendant found in another psychologist's report. (Id. at p. 1304.) The Court of Appeal noted "an expert may testify under [Evidence Code] section 802 about basis evidence consisting of out-of-court statements." (Id. at p. 1309.) However, "courts have also recognized that the use of a limiting instruction is not always sufficient to alleviate the risk that jurors will use out-of-court statements admitted as expert basis evidence as independent proof on disputed factual issues." (Id. at p. 1310.) Accordingly, " 'California law gives the trial court discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness as a partial basis for [the expert's] opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein.' " (Ibid.) The Court of Appeal concluded the trial court's exclusion of the defendant's statements "was wholly appropriate." (Id. at p. 1312.) It found the defendant's statements "relate to the specific events at issue in the trial, and are directly relevant to the charge of premeditated murder and the defense theory that defendant acted in imperfect self-defense. Because of this overlap between the basis evidence and the disputed issues at trial, there was a substantial risk the jury would consider defendant's out-of-court statements as independent proof of what happened the night of the shooting. Moreover, defendant's out-of-court statements were unreliable—a self-serving substitute for trial testimony tested 'in the crucible of cross-examination.' " (Ibid.)
As in Yuksel and Miller, the trial court did not abuse its discretion in prohibiting Shirikian from testifying regarding defendant's personal belief regarding the decoy's age or his intent in communicating and attempting to meet the decoy. The jury could have potentially considered these hearsay statements " 'as evidence of the truth of the events, effectively permitting defendant to testify to his version of events without being subject to cross-examination.' " (Miller, supra, 231 Cal.App.4th at p. 1313.) As in Yuksel, Shirikian was, however, permitted to testify why she believed defendant was not a pedophile, describe the requirements for finding pedophilia, and explain how role-playing would not qualify as pedophilia. (Accord Yuksel, supra, 207 Cal.App.4th at p. 857.)
While defendant eventually testified to these issues at trial, he had not testified at the time the court made its rulings. Had Shirikian been allowed to testify about defendant's statements, it is unclear whether defendant would have still testified.
Defendant relies on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and People v. Stoll (1989) 49 Cal.3d 1136, to argue an expert is entitled to base his or her opinion on a defendant's statements, and the jury's role is then to assess the adequacy of those facts. Neither case supports defendant's position. And Sanchez, in fact, supports the exact approach adopted by the trial court in this matter.
Sanchez explained an expert may convey "general knowledge in his field of expertise" but "has traditionally been precluded from relating case-specific facts about which the expert has no independent knowledge." (Sanchez, supra, 63 Cal.4th at p. 676.) While some prior cases concluded a limiting instruction would cure any hearsay problems, the Supreme Court rejected this approach. The Supreme Court noted "an expert's testimony regarding the basis for an opinion must be considered for its truth by the jury." (Id. at p. 679.) "When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert's opinion, it cannot logically be asserted that the hearsay content is not offered for its truth." (Id. at p. 682.) The Supreme Court explained "the jury must consider expert basis testimony for its truth in order to evaluate the expert's opinion" and thus "hearsay and confrontation problems cannot be avoided by giving a limiting instruction." (Id. at p. 684.) Accordingly, the Supreme Court concluded experts may "describe background information and knowledge in the area of his expertise," "rely on information within their personal knowledge . . . . [and] nontestimonial hearsay properly admitted under a statutory hearsay exception," and "give an opinion based on a hypothetical including case-specific facts that are properly proven." (Id. at p. 685.) "What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.)
People v. Stoll, supra, 49 Cal.3d 1136, likewise does not assist defendant. In Stoll, the parties disputed whether an expert could rely on certain psychological tests to opine on the defendant's personality traits. (Id. at p. 1152.) The court did not address whether the expert could convey hearsay statements, but rather noted the expert "was entitled to base his opinion on observations of, and statements made by, the patient during a routine psychological interview." (Id. at p. 1155.) Here, Shirikian was not prohibited from relying on defendant's statements; she simply could not testify as to the contents of those statements. This approach is in accord with the above-discussed authority. (See, e.g., Yuksel, supra, 207 Cal.App.4th at p. 856; Miller, supra, 231 Cal.App.4th at p. 1309; Sanchez, supra, 63 Cal.4th at p. 686.)
In accordance with Yuksel, Miller, and Sanchez, Shirikian provided "background information and knowledge" regarding the clinical definition of pedophilia, the reliability of the psychological tests administered, and the results of those tests. She testified her opinion was based, in part, on her interview with defendant, explained that interview included a thorough discussion of his sexual history, and opined on proper hypotheticals. Moreover, and contrary to defendant's claim, Shirikian was "allowed at least to touch on the question of [defendant's] belief that the decoy was an adult." On direct, she testified role-playing with an adult constituted "a totally different and separate non-deviant sexual category" than a pedophilic act. When Shirikian was asked on cross-examination whether certain conduct demonstrated an unnatural sexual urge toward children, she conditioned her response on whether the person knew he was meeting a minor. And on redirect, the trial court agreed defense counsel could pose a hypothetical regarding an adult meeting someone he believed was pretending to be 13 years old.
Defendant's brief erroneously asserts "the defense was left with an expert on the stand who had . . . no admissible means of offering a hypothetical using the defense's key fact, i.e., that [defendant] did not believe the prostitute was a minor." To the contrary, the trial court held defense counsel could pose a hypothetical regarding an adult meeting another adult who was pretending to be 13 years old.
The trial court imposed reasonable limitations on Shirikian's testimony to address specific hearsay concerns in accord with the above-discussed authority, and the court did not abuse its discretion in doing so. B. Alleged Instructional Errors
1. CALCRIM No. 1126
Defendant argues CALCRIM No. 1126, when supported by evidence, requires courts to instruct sua sponte on a defendant's good faith belief that the victim was not a minor. Defendant contends the court erred by failing to do so.
The People initially contend defendant failed to preserve this objection. "[I]nstructional errors, however, are reviewable on appeal to the extent they 'affect[] his substantial rights.' " (People v. Prieto (2003) 30 Cal.4th 226, 247.) Accordingly, we address the merits of defendant's argument.
The Bench Notes to CALCRIM No. 1126 state: "The court has a sua sponte duty to instruct on the good faith belief that the victim was not a minor as a defense for certain sex crimes with minors, including statutory rape, when that defense is supported by evidence. Until courts of review clarify whether this defense is available in prosecutions for violations of Pen. Code, § 288.4(b), the court will have to exercise its own discretion." (1 Judicial Council of Cal., Crim. Jury Instns. (2018) Bench Notes to CALCRIM No. 1126, p. 859, boldface omitted.) A trial court " 'is required to instruct sua sponte only on general principles which are necessary for the jury's understanding of the case.' " (People v. Garvin (2003) 110 Cal.App.4th 484, 488 (Garvin).) "There is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial." (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)
Here, the parties dispute whether the good faith belief instruction was " ' " 'necessary for the jury's understanding of the case.' " ' " (See Garvin, supra, 110 Cal.App.4th at p. 488.) The People contend the good faith belief defense was already encompassed in the first element of section 288.4, which required the jury to find beyond a reasonable doubt the defendant "arrange[d] a meeting with a minor or a person he . . . believe[d] to be a minor . . . ." (§ 288.4, subd. (a)(1).) We agree.
In this case, no one contended defendant actually met with a minor. The first element of section 288.4, subdivision (a)(1), thus could not be met unless the prosecution proved defendant arranged a meeting with a person he believed to be a minor. The jury necessarily had to consider defendant's belief regarding the decoy's age when assessing guilt. Accordingly, under the circumstances presented in this case, the trial court did not abuse its discretion in omitting an additional good faith belief instruction because the issue was encompassed in CALCRIM No. 1126.
Moreover, any alleged error was harmless. The jury received several instructions regarding the burden of proof and how to evaluate whether the prosecution proved the elements of the charges beyond a reasonable doubt. CALCRIM No. 220 instructed the jury that the prosecutor had to prove beyond a reasonable doubt that the crime was committed. CALCRIM Nos. 225 and 251 informed the jury the prosecutor must prove the defendant acted with the required intent or mental state. CALCRIM No. 1126 instructed the prosecutor had to prove defendant arranged to meet a person "he believed to be a minor." CALCRIM No. 224 explained, "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence." Defense counsel argued to the jury defendant believed he was communicating with an adult and asserted "there are reasonable inferences that point toward innocence." Defense counsel also emphasized to the jury the prosecution must prove every element beyond a reasonable doubt and "they failed to prove . . . the abnormal, unnatural interest in children."
Based on the instructions provided to the jury, it is not reasonably probable the jury failed to understand that the prosecution must prove defendant believed the decoy was a minor. Likewise, it is not reasonably probable the jury failed to understand if the prosecution failed to prove that belief, then they must find defendant not guilty. We thus conclude any alleged error in omitting a good faith belief instruction was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) ["a 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"].)
The People assert instructional errors should be analyzed under the state prejudice standard set forth in Watson, supra, 46 Cal.2d 818. Defendant does not contend otherwise.
2. Expert Witness Instruction
When instructing the jury on CALCRIM No. 332, the trial court included language regarding how the jury should evaluate conflicting expert testimony. Defendant claims the court erred by including this language because only one expert testified. He contends the instruction, as given, encouraged the jury to treat the police officers' testimony as expert opinions.
As an initial matter, the People assert defendant waived this objection because CALCRIM No. 332 was an accurate statement of the law, and defense counsel did not object or request a modification. We agree. "A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal." (People v. Lee (2011) 51 Cal.4th 620, 638.)
Nor has defendant demonstrated any resulting prejudice. The instruction merely advises jurors how to assess conflicting expert opinions. And CALCRIM No. 200, on which the court also instructed the jury, states in part: "Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." Nothing in the record suggests the jury treated any prosecution witness as an expert. In the absence of such evidence, we presume the jury followed CALCRIM No. 200 and disregarded the extraneous language in CALCRIM No. 332. (People v. Pearson (2013) 56 Cal.4th 393, 414 ["We presume that jurors understand and follow the court's instructions."].) Accordingly, it is not reasonably probable that defendant would have received a more favorable verdict if the court had omitted the last paragraph of CALCRIM No. 332.
3. Instruction on Corpus Delicti
Defendant next contends the court erred by failing to instruct the jury on CALCRIM No. 359 and the principle of corpus delicti. He asserts courts have a sua sponte duty to provide this instruction "whenever an accused's extrajudicial statements form part of the prosecution's evidence." While the trial court should have given CALCRIM No. 359 because of defendant's postarrest interview, we conclude any failure to do so was harmless.
CALCRIM No. 359 provides: "The defendant may not be convicted of any crime based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant's out-of-court statements to convict (him/her) if you conclude that other evidence shows that the charged crime [or a lesser included offense] was committed. [¶] That other evidence may be slight and need only be enough to support a reasonable inference that a crime was committed. [¶] This requirement of other evidence does not apply to proving the identity of the person who committed the crime [and the degree of the crime]. If other evidence shows that the charged crime [or lesser included offense] was committed, the identity of the person who committed it [and the degree of the crime] may be proved by the defendant's statement[s] alone. [¶] You may not convict the defendant unless the People have proved (his/her) guilt beyond a reasonable doubt."
"In every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime itself—i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its cause. In California, it has traditionally been held, the prosecution cannot satisfy this burden by relying exclusively upon the extrajudicial statements, confessions, or admissions of the defendant. [Citations.] Though mandated by no statute, and never deemed a constitutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law." (People v. Alvarez (2002) 27 Cal.4th 1161, 1168-1169 (Alvarez).) "This rule is intended to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened." (Id. at p. 1169.) A corpus delicti instruction applies to "preoffense statements of later intent as well as to postoffense admissions and confessions [citation], but not to a statement that is part of the crime itself." (People v. Carpenter (1997) 15 Cal.4th 312, 394, superseded by statute on another issue.) Whenever the corpus delicti rule applies, the trial court must instruct on it sua sponte, and it is error not to do so. (Alvarez, at p. 1170.)
This case involves two categories of extrajudicial statements: defendant's text messages to Mahurin, and defendant's postarrest interview.
As to the text messages, the People contend defendant made the statements during the commission of the offenses and were thus not subject to CALCRIM No. 359. In In re I.M. (2005) 125 Cal.App.4th 1195, the defendant attempted to mislead police by providing them with false information regarding the cause of a murder. (Id. at p. 1203.) The court noted while the defendant's attempt to mislead police were "in the form of a statement made by him to the investigating officers. . . . the statement itself was a part of the corpus delicti. Statements that, although extrajudicial, are themselves a part of the conduct of the crime, are not subject to the corpus delicti rule." (Id. at pp. 1203-1204.) The court concluded, "Defendant's attempt to mislead police, therefore, can be used to establish the corpus delicti of his crime." (Ibid.)
We agree the text messages were part of the crimes and fell outside the corpus delicti rule. Count I involved, in part, "arrang[ing] a meeting with [the decoy] . . . for the purpose of exposing the genitals . . . of [the decoy] and defendant, and to engage in lewd and lascivious behavior . . . ." Count II involved sending harmful matter to a minor. The texts at issue arranged which sexual acts would be performed, coordinated a meeting location and time, and sent the decoy pictures of male genitalia. These texts are directly connected to the elements of counts I and II, and thus were properly used to establish the corpus delicti of those crimes. CALCRIM No. 359 was not necessary.
The postarrest interview, however, constitutes a "postoffense admission[] and confession[]" to which the corpus delicti instruction usually applies. (People v. Carpenter, supra, 15 Cal.4th at p. 394.) The People acknowledge as much, but contend the court's failure to give CALCRIM No. 359 was harmless error. We agree.
"Error in omitting a corpus delicti instruction is considered harmless, and thus no basis for reversal, if there appears no reasonable probability the jury would have reached a result more favorable to the defendant had the instruction been given. [Citations.] [¶] Of course, as we have seen, the modicum of necessary independent evidence of the corpus delicti, and thus the jury's duty to find such independent proof, is not great. The independent evidence may be circumstantial, and need only be 'a slight or prima facie showing' permitting an inference of injury, loss, or harm from a criminal agency, after which the defendant's statements may be considered to strengthen the case on all issues. [Citations.] If, as a matter of law, this 'slight or prima facie' showing was made, a rational jury, properly instructed, could not have found otherwise, and the omission of an independent-proof instruction is necessarily harmless." (Alvarez, supra, 27 Cal.4th at p. 1181.)
In this case, the prosecution presented sufficient independent evidence of defendant's belief regarding the decoy's age and his motive for going to the motel. In addition to the text conversations discussed above, defendant also viewed and responded to an advertisement on myRedBook.com that stated, "My big sis is 18 and she is teaching me the ropes. . . . I am like the same just a lil smaller," and he withdrew money from an ATM, drove to the motel, and knocked on the motel room door. The record thus contains the requisite prima facie showing, independent of defendant's extrajudicial statements, from which the jury could infer the defendant believed the decoy was under 18 and went to the motel to engage in sexual activity with the decoy. Accordingly, insofar as the trial court erred in failing to instruct the jury on CALCRIM No. 359, the error was harmless. (Alvarez, supra, 27 Cal.4th at p. 1182.)
4. Instruction on "Motivated By" Element of Section 288.4
Finally, defendant argues the court erred by failing to provide a sua sponte instruction that the "motivated by" element in section 288.4 must be a substantial factor in the commission of the offense.
The only case cited by defendant in support of his position is People v. Fromuth (2016) 2 Cal.App.5th 91 (Fromuth). But Fromuth contradicts his argument. In Fromuth, the defendant was convicted of arranging to meet with a minor for lewd purposes and going to such an arranged meeting. (Id. at p. 95.) The defendant argued on appeal the "motivated by" element—i.e., that he was " 'motivated by an unnatural or abnormal sexual interest in children' "—must be a "substantial factor" in the commission of the crime. (Ibid.) While the Court of Appeal agreed the motivation must be a substantial factor, it disagreed the trial court was required to provide a specific instruction on this issue. (Id. at pp. 103, 109.) The Court of Appeal noted the trial court "instructed the jury on the 'motivated by' element using the language of the statute." (Id. at p. 108.) The court explained statutory language " ' "is generally an appropriate and desirable basis for an instruction . . . . [provided] the jury would have no difficulty in understanding the statute without guidance . . . ." ' " (Ibid.) The court concluded, "Because 'motivated by' is a commonly understood phrase that is naturally understood to require causation, a lay jury would readily understand that the 'motivated by' element required that the motivation be a cause of defendant's conduct." (Id. at p. 109.) Accordingly, "[s]ince defendant did not request a substantial factor instruction and the court had no sua sponte duty to give such an instruction, the trial court did not err in failing to so instruct the jury." (Ibid.)
We agree with the court's reasoning in Fromuth. The instruction provided to the jury stated in part, "When the defendant [arranged a meeting with a person he believed to be a minor], he was motivated by an unnatural or abnormal sexual interest in children." Defendant did not request a "substantial factor" instruction and, as noted in Fromuth, "A substantial factor instruction would have made no difference in discerning whether defendant harbored such a motive because the instructions already informed the jury of the need for a causation finding." (Fromuth, supra, 2 Cal.App.5th at p. 109.) We, therefore, decline to impose a sua sponte duty on the court to give such an instruction. C. Ineffective Assistance of Counsel
Defendant contends he received ineffective assistance of counsel because his counsel lacked the requisite skill and competence necessary to establish his innocence. Specifically, defendant alleges his counsel failed to adequately represent him by (1) not asking Shirikian a counter-hypothetical question; (2) providing a weak cross-examination of Mahurin; (3) not cross-examining Buchignani and only calling her on direct; (4) not challenging the sexually graphic photographs sent by defendant to the decoy; (5) not asking defendant about his statements to the police in the postarrest interview; (6) failing to strongly advance an entrapment defense; and (7) allowing various jury instruction errors.
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540.)
As acknowledged by defendant, " ' " 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of professional assistance." ' [Citation.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' " ' " (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.) "Defendant's burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission." (Id. at p. 1148.)
1. Examination of Dr. Shirikian
Defendant argues his counsel was ineffective for failing to ask Shirikian a hypothetical question regarding a prostitute role-playing a 13 year old. As the People note, the record is silent as to why defense counsel decided not to ask this hypothetical after convincing the court to overrule the prosecution's objection. "[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
Accordingly, we must reject defendant's claim because the record is silent as to defense counsel's reasons for failing to ask the hypothetical, and we cannot say, based on the record before us, that there could be no satisfactory explanation for counsel's omission. At least two possible explanations appear from the record. First, defense counsel may have been concerned about Shirikian's potential testimony in response to the hypothetical. The trial court overruled the prosecution's objection based on Detective Mahurin's testimony regarding how he selected which photograph to send to defendant. But the parties and the court had conflicting memories of Mahurin's testimony—i.e., whether he would only use an adult's image for nude photographs or for any photographs. Defense counsel may have been concerned Mahurin would be recalled and provide additional testimony undermining his hypothetical. Defense counsel's potential concern regarding Shirikian's testimony is also reflected in his request to confer with Shirikian before she testified. The court denied this request, and defense counsel then proceeded with a separate line of questioning.
Second, defense counsel could have concluded the relevant information was already elicited on direct examination. The hypothetical at issue posited an individual meeting someone pretending to be 13 and not someone he believed was 13. A prior hypothetical, which was asked and answered, involved an individual who knew they were engaging with an adult but role-playing an engagement with a Catholic school girl. Defense counsel could reasonably have concluded the role-playing argument was established and his time was better spent on alternative questioning.
2. Examinations of Detectives Mahurin and Buchignani
Defendant next contends his counsel failed to vigorously cross-examine Mahurin regarding the terms and acronyms from myRedBook.com, the alternative versions of the advertisement, and the age of the woman in the photographs, and connect those issues to defendant's role-playing and entrapment defenses. Similarly, defendant asserts counsel erred in failing to cross-examine Buchignani and instead only calling her on direct.
"[N]ormally the decision to what extent and how to cross-examine witnesses comes within the wide range of tactical decisions competent counsel must make." (People v. Cleveland (2004) 32 Cal.4th 704, 746.) "Such matters as whether objections should be made and the manner of cross-examination are within counsel's discretion and rarely implicate ineffective assistance of counsel." (People v. McDermott (2002) 28 Cal.4th 946, 993.) Moreover, " '[s]uch claims must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation.' " (People v. Bolin (1998) 18 Cal.4th 297, 334.)
Defendant fails to identify any material "establishing . . . the substance of the omitted evidence." Nor has he identified its likelihood to exonerate defendant. Instead, defendant speculates on various areas of inquiry he contends should have been subject to further examination. For example, defendant claims counsel should have further inquired about the photograph sent by Mahurin. But he does not identify what additional information could have been elicited from doing so. Defense counsel obtained Mahurin's concession that he did not know the age of the woman in the photograph. But, despite asking numerous questions regarding the photograph, Mahurin repeatedly refused to state the woman was an adult. Likewise, defendant argues defense counsel should have asked further questions regarding the acronyms as evidence myRedbook.com was used for fantasy scenarios. But he again does not identify "the substance of the omitted evidence." (See People v. Bolin, supra, 18 Cal.4th at p. 334.) Defense counsel's one attempt to make this connection resulted in adverse testimony. It was reasonable for him to avoid further adverse testimony and instead make such a connection in his summation. And he did so.
Defendant also argues counsel should have presented the alternative version of the advertisement. But defense counsel attempted to do so and was prohibited by the court.
We also are disinclined to find ineffective assistance of counsel merely because defense counsel examined Buchignani on direct rather than cross. Defendant fails to identify a single line of inquiry that was hampered by this decision.
Defendant has neither identified omitted evidence nor demonstrated such evidence would have impacted the jury's assessment. We, therefore, cannot conclude defense counsel rendered ineffective assistance.
3. The Sexually Graphic Photographs
Defendant then asserts three photographs of male genitalia were introduced "without any challenge." He first claims defense counsel should have challenged the photographs because they did not show a visible face. But as correctly noted by the People, section 288.2, subdivision (a)(2) does not require defendant to have sent a photograph of his own genitalia to the decoy. Rather, section 288.2 only requires the transmission of "harmful matter," which is defined in section 313, subdivision (a) as "matter, taken as a whole, which . . . appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." The photographs at issue indisputably fall within this definition.
Defendant next argues defense counsel should have challenged the photographs because defendant did not believe the recipient was a minor. Specifically, defendant contends the photograph Mahurin sent depicted an adult woman, and so he believed he was transmitting his photographs to an adult woman. But this argument lacks merit. Contrary to his claim, defendant sent his genitalia photographs between 4:57 p.m. and 5:04 p.m. Mahurin did not send the photograph of a woman's backside until 5:46 p.m. As a result, defense counsel could not have relied on Mahurin's photograph to argue defendant believed the recipient of the genitalia photographs was an adult.
Defense counsel repeatedly presented evidence and argument that defendant believed the decoy was an adult. He elicited relevant testimony from Shirikian and defendant, and he extensively argued this issue in his summation. Accordingly, defense counsel did, in fact, contest count II.
4. Defendant's Testimony
Defendant argues defense counsel failed to examine him regarding his postarrest interview statements regarding the age of the decoy. But defendant fails to demonstrate any such failure prejudiced his defense. (People v. Dennis, supra, 17 Cal.4th at p. 540.) Had counsel focused on defendant's postarrest statement that "she said like thirteen or something," the prosecution likely would have highlighted defendant's prior statement—"I know she's younger than eighteen." We cannot conclude defense counsel's approach was either deficient or prejudicial to defendant.
5. Entrapment Defense
Defendant claims defense counsel should have mounted a more vigorous entrapment defense by challenging the advertisement language and the text change.
Entrapment occurs when police conduct is likely to induce a normally law-abiding citizen to commit an offense. (People v. Watson (2000) 22 Cal.4th 220, 223.) We utilize an objective test and focus on the conduct of the police. (Ibid.) The trial court is required to instruct on the defense of entrapment only if substantial evidence supports the defense. (Id. at p. 222.)
Here, the advertisement and the entire text message exchange was entered into evidence. Defense counsel questioned Mahurin regarding his training on entrapment. Defense counsel then sought an entrapment instruction. In doing so he highlighted the repeat texts from Mahurin insisting defendant come to the hotel. Counsel argued these texts amounted to improper persuasion to commit a crime. Counsel also discussed the appeal for sympathy within those text messages and its potential impact on defendant. The court, however, concluded there was no substantial evidence to suggest Mahurin's conduct was likely to induce a law-abiding citizen into a sexual exchange with a 13 year old.
Defendant relies on In re Avena (1996) 12 Cal.4th 694 to argue his counsel's performance rendered the proceeding " 'fundamentally unfair.' " But in Avena, the Supreme Court noted " 'there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.' " (Id. at p. 727.) Defendant fails to do so. While he generally contends his counsel should have engaged in more robust advocacy, his counsel clearly pursued this defense and defendant fails to identify any " 'specific errors' " in his counsel's advocacy.
6. Jury Instructions
As discussed in part II.B., ante, we find no prejudicial error in connection with the jury instructions. Nor do we find the alleged omissions impacted the jury verdict. (See parts II.B.1., 3., 4., ante.) Thus, defendant was not prejudiced by any alleged omissions in the jury instructions. D. Motion for New Trial
Defendant asserts the trial court erred by denying his motion for new trial. Specifically, he contends the court's failure to "adequately address" his concerns regarding various alleged evidentiary and instructional errors and the effectiveness of his counsel amounted to an abuse of discretion.
"A criminal defendant may move for a new trial on specified grounds. (§ 1181.)" (People v. Ault (2004) 33 Cal.4th 1250, 1260.) Those specified grounds include, as relevant here, "[w]hen the court has misdirected the jury in a matter of law[] or has erred in the decision of any question of law arising during the course of the trial . . ." or "[w]hen the verdict or finding is contrary to law or evidence . . . ." (§ 1181, subds. (5), (6).) Moreover, "in appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because 'justice is expedited when the issue of counsel's effectiveness can be resolved promptly at the trial level.' " (People v. Cornwell (2005) 37 Cal.4th 50, 101, italics omitted.) The trial court has no discretion to award a new trial where no prejudicial error occurred. (People v. Ault, at pp. 1262-1263.) The trial court's ruling on a new trial motion will be disturbed only for clear abuse of discretion. (Id. at p. 1260.)
As discussed in parts II.A., B., and C., ante, no prejudicial error occurred. Indeed, the court's only error was its failure to instruct on CALCRIM No. 359. (See part II.B.3, ante.) But we found that error harmless. (Ibid.) Accordingly, the trial court properly denied defendant's motion for new trial. E. Cumulative Error
Because the only error we find is the failure to instruct on CALCRIM No. 359, which we have concluded was harmless, there is no basis for a claim of cumulative error.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.