Opinion
E050598 Super.Ct.No. RIF128267
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. GILBERT TITO SUTHERLAND, JR., Defendant and Appellant.
N. Fred Thiagarajah for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed.
N. Fred Thiagarajah for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and William M. Wood and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
As part of a sting operation aimed at catching sexual predators, a volunteer posed as a 13-year-old girl online and waited for people to chat with her. Defendant and appellant Gilbert Tito Sutherland, Jr. initiated contact with the girl and arranged to meet with her. Upon arriving at what he thought was the girl's house, defendant was arrested and later charged with attempted lewd and lascivious acts upon a child under 14 years of age (count 1; Pen. Code, §§ 288, subd. (a), 664) and attempted oral copulation upon a child under 14 years of age and 10 years younger than defendant (count 2; Pen. Code, §§ 288, subd. (a)(c)(1), 664). A jury convicted defendant of both counts. The trial court sentenced defendant to probation, including one year in county jail.
On appeal, defendant contends the trial court violated his state and federal constitutional rights to due process when it denied his request to instruct the jury on entrapment. He further contends the trial court abused its discretion when it denied his motion to continue the trial. We reject these arguments and affirm.
II. FACTUAL SUMMARY
"Perverted Justice" is a private organization aimed at catching sexual predators on the Internet. Volunteers for Perverted Justice pose on the Internet as 12- or 13-year-old boys and girls and wait for adults to initiate contact with them. If the chat turns sexual in nature, the volunteer then provides an address where they can meet.
Sarah Oliver, a Perverted Justice volunteer, created an online profile of a fictitious 13-year-old girl named "Eve," with the screen name "Eveaintsogreat." Defendant, who had a profile with the screen name "Kingspade1714," initiated contact with Eve on December 23, 2005. The two chatted online eight days over the next two weeks. Eventually, defendant and Eve agreed to meet at Eve's house in Mira Loma at 5:30 p.m. on January 7, 2006.
The content of defendant's online chats with Eve was archived by the Riverside County Sheriff's Department in two ways. First, "Yahoo instant messenger," the program defendant used, automatically archives online chats. Additionally, the sheriff's department set up a proxy server that kept a dual log of the conversations and encrypted them into an unalterable file format.
Unbeknownst to defendant, Eve's house was actually the location of a three-day sting operation conducted by Perverted Justice and the Riverside County Sheriff's Department. Lieutenant Chad Bianco of the Riverside County Sheriff's Department supervised the entire operation, personally reviewing all of the online chats before deciding whether to provide the potential predator with the address. Lieutenant Bianco based his decision to provide the address on whether it appeared the person seriously intended to meet up with the fabricated child. Lieutenant Bianco reviewed several chats between defendant and Eve and decided to provide defendant with the Mira Loma address.
As planned, defendant arrived at the Mira Loma address and walked into the house. Instead of finding Eve, defendant saw a man sitting at a table, who he initially thought was Eve's father. The man was actually NBC reporter Chris Hansen. When defendant saw news cameras pointed at his face, he fled. Defendant went back outside of the house, where Lieutenant Bianco arrested him and took him into custody.
After defendant's arrest, Steven Welch, a senior investigator with the Riverside County District Attorney's Office, searched defendant's person and his vehicle. On defendant's person, he found two condoms in a jacket pocket. In the front passenger seat of defendant's vehicle, he found a piece of paper with directions to the address. He also found a pornographic video titled "Big Natural Breasts." In a back pocket of the right passenger seat he found a pornographic video titled "Gang Bang a Teen," and a disposable camera.
At trial, defendant testified that despite Eve's representation that she was 13 years old, he never once thought he was chatting with a 13-year-old girl. Defendant further testified that on the day of his arrest, he changed his mind about going to Eve's house, but, after Eve called him three or four times and "begged" him to come over, he decided to go. The prosecutor objected to defendant's testimony of the content of the telephone conversations on hearsay grounds, and the trial court sustained the objections.
III. ANALYSIS
A. Failure to Instruct on Entrapment Defense
At the close of the evidence at trial, defendant asked that the jury be instructed according to CALCRIM No. 3408 on the defense of entrapment. A hearing was held, after which the trial court denied the request on the grounds that (1) Perverted Justice is not an agent of law enforcement and the defense applies only when law enforcement or its agent engages in conduct that induces the defendant to act, and (2) the evidence did not warrant giving the instruction. Defendant challenges the trial court's refusal to give the entrapment instruction, contending his federal and state constitutional rights to due process and to trial by jury were violated.
1. Standard of Review
A trial court is "required to instruct the . . . jury on the defense of entrapment if, but only if, substantial evidence supported the defense. [Citations.]" (People v. Watson (2000) 22 Cal.4th 220, 222-223.) We review the record to determine whether defendant presented substantial evidence to support the claimed defense. (People v. McIntire (1979) 23 Cal.3d 742, 746; People v. Salas (2006) 37 Cal.4th 967, 983.)
2. Analysis
"In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.] '[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect—for example, a decoy program—is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.' [Citation.]" (People v. Watson, supra, 22 Cal.4th at p. 223, quoting People v. Barraza (1979) 23 Cal.3d 675, 689-690.)
There are two guiding principles. "'First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established.' [Citation.]" (People v. Watson, supra, 22 Cal.4th at p. 223.) "'Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.' [Citation.]" (Id. at p. 223; see also People v. Federico (2011) 191 Cal.App.4th 1418, 1422 [Fourth Dist., Div. Two].)
In light of these principles, we now review the content of the online chats between defendant and Eve. On December 23, 2005, defendant initiated an online chat with a stranger who identified herself as Eve, a 13-year-old female living in Riverside County. After learning that Eve purported to be 13 years old, defendant—who was 26 years old—continued to chat with her, asking her, "So are you worth the drive?" and, "if I was hot and drove way over there, what would we do?" Defendant directed Eve to his online profile pictures and said, "Tell me what you think." Eve replied, "You're hot." Defendant, after viewing Eve's profile, said, "You're a little hotty," and asked, "what you wanna do if I come over?" Eve replied, "Whatever you want." "Anything?" defendant asked. "Yep anything you're hot." Eve replied.
Defendant initially told Eve he was 21 years old.
Three days later, on December 26, defendant again initiated an online chat with Eve. Defendant said, "I want to see you." Eve said, "I don't know. I'm kind of scared now. I'm afraid you're playing me." Defendant assured Eve he was not "playing" her, and proceeded to ask her about her height and weight. Defendant turned the conversation sexual in nature by saying, "But I don't think you could handle me?" and, "I want to throw you around hee hee." Eve told defendant she did not want him to hurt her, and defendant replied, "Okay. Don't worry. You'll like it." Defendant then asked Eve, "Tell me what you want me to do to you?" Eve replied, "What? What do you want to do?" Defendant said, "You[!]" Defendant asked Eve, "So how many guys have you had sex with?" Eve said, "One." Defendant replied, "That's cool. [¶] Am I lucky No. 2?" Eve said maybe, if defendant was nice. Defendant asked Eve for her address, and Eve said she would not give him her address until she knew when he was coming over.
The next day (December 27, 2005), defendant initiated contact with Eve, and the two chatted briefly. Defendant said, "I'm ready when you are girlie," and ended the chat by saying, "Call me whenever you can ttyl [talk to you later]."
The following day (December 28, 2005), defendant initiated contact with Eve. Defendant said, "I'm getting in the mood again," and asked Eve, "What are you wearing baby?" Defendant told Eve she needed to help him by talking "dirty" to him. Eve responded, "I don't cyber." Defendant replied, "I don't think I can wait," and asked, "Will you help me out when I come over?" Eve said she would, to which defendant replied, "Okay. Do you masturbate?"
Oliver testified at trial that "cyber" is short for cyber sex, which occurs when people exchange sexual messages online.
On December 30, 2005, defendant again initiated contact with Eve. Defendant asked, "So are you getting ready for me?" Eve replied that she was, and that she was "excited." Defendant asked Eve what day she wanted him to come over. Eve replied that she was not sure.
On January 1, 2006, defendant initiated contact with Eve again. Defendant asked Eve how she was doing, and when Eve replied that she was bored, defendant told her that he would "entertain" her by stripping for her.
Two days later (January 3, 2006) defendant again initiated contact with Eve. Eve asked defendant, "You still wanna come this weekend?" Defendant replied, "Yeah. Do you want me to come?" Eve said, "Yeah if you want to. I'd be happy." Defendant reaffirmed, "You said we can do anything, right?" Eve replied, "Yeah if you're nice." Defendant asked Eve if she would be his "personal little sex slave" if he was nice. Defendant proceeded to ask Eve a series of questions, all involving whether she would do various sexual acts with him—including performing oral copulation—if he told her to. To all of these questions, Eve replied in the affirmative. Eve asked defendant if he would bring condoms, and defendant said that he would.
On January 5, 2006, Eve sent defendant an offline message that said, "Hey, if you still want to meet, you can get with me tonight about my addy [address]."
On January 7, 2006, defendant initiated an online conversation with Eve. Defendant asked Eve, "Am I gonna see you today?" Eve said, "You want to?" Defendant replied, "Yeah." Eve said, "Okay. That would be cool." Defendant asked Eve for her address, and Eve provided the address, "7177 Riverboat Drive. Mira Loma." Defendant figured that it would take him 30 minutes to drive there, and the two agreed that defendant would meet Eve at her house at 5:30 p.m. that day. Defendant asked Eve for her telephone number, and Eve replied that because her house had no landline telephone and her parents took the cell phones to work with them, she would need to call defendant. Eve asked defendant if she should call him when her parents were gone. Defendant said, "Yeah." He told Eve he would probably be driving a gray Montero sport. Eve told defendant that he could park in the driveway if he wanted. Defendant asked Eve, "So what do you want?" Eve replied, "Um, sex, laugh out loud." Eve asked defendant how long he could stay. Defendant said he was not sure, and Eve explained that defendant could stay for a long time because her mother was working late. Eve asked defendant if he could stay a couple of hours, and defendant said, "Sure. Yeah." Eve then said, "Yay okay." Defendant ended the conversation by saying, "Bye. Hey, call me. Bye."
The evidence is insufficient to support an entrapment instruction. Oliver posed as Eve, a 13-year-old girl on the Internet. Throughout a two-week period, defendant and Eve chatted online on eight different days. Defendant initiated contact each time. After he contacted her and told her he was 21, she told him that she was 13. During these online conversations it was defendant who repeatedly initiated sexually-based dialogue, describing explicitly the sexual acts he would like to do with her. It was defendant who asked Eve, "So how many guys have you had sex with?" and upon reading Eve's response, replying, "Am I lucky No. 2?" When defendant found out that she lived 30 minutes away, he asked her if she was "worth the drive" and "if [he] was hot and drove way over there" what would they do. It was defendant who initiated contact; it was defendant who suggested that he visit Eve; and it was defendant who asked if she was a virgin and said he wanted to see her.
Throughout the eight chats, Eve brought up the subject of defendant coming over to her house only once. On January 3, Eve said, "You still wanna come this weekend?" When defendant replied by asking, "Yeah? Do you want me to come?" Eve responded, "Yeah if you want to. I'd be happy." Although Eve's language in this exchange may be viewed as what defendant describes as "minimal encouragement," entrapment requires more than this. During the entirety of the conversations, Eve displayed no pressure or overbearing conduct, and, tellingly, she did not chat unless chatted to first. Eve responded only after defendant initiated conversations, and her responses were nothing more than those of a police agent taking "reasonable, though restrained, steps to gain the confidence of" defendant. (See People v. Barraza, supra, 23 Cal.3d at p. 690, fn. 4.) Her responses were in no way "overbearing conduct such as badgering, cajoling, [or] importuning . . . ." (Id. at p. 690.) Eve merely provided an opportunity for defendant to spend time with a 13-year-old girl in an empty house. (See People v. Federico, supra, 191 Cal.App.4th at p. 1424.) The fact that a decoy program was used does not alter our analysis. (See Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 568-570 [holding that the use of underage, but mature-looking, decoys to expose unlawful sales of alcoholic beverages to minors is not entrapment; no pressure or overbearing conduct has occurred, and targets could have protected themselves by routinely checking customer identifications].)
Eve did send defendant one offline message on January 5. However, Eve merely told defendant that she would provide him with her address if he still wanted to come over. Thus, Eve was doing nothing more than responding to defendant's multiple prior requests for her address.
We remain skeptical whether sufficient evidence existed that Oliver acted as an agent of the sheriff's department, but we need not decide this issue.
Defendant contends that, applying the objective entrapment test, Perverted Justice's conduct "would force a reasonable person into acting criminally." Defendant claims that because people typically falsify their age in an online setting and the voice on the telephone sounded "fake," a reasonable person in his position would become curious and want to investigate whether the person was an adult masquerading as a child. As defendant puts it, "the assurances of sex in an empty house from this mysterious 'voice,' very well might push a reasonable person to explore the situation . . . ." Although a reasonable person with such curiosity might "investigate" the matter by asking the ostensible 13 year old whether she is actually an adult, a normal law-abiding person would not "explore the situation" by driving 30 minutes to the girl's house at the time appointed for a sexual encounter with condoms in his pocket. Here, there is no evidence that defendant ever asked Eve if she was really only 13 years old.
More importantly, the test is not whether the police conduct would raise a reasonable person's curiosity, but whether the police conduct was "likely to induce a normally law-abiding person to commit the offense[.]" (People v. Barraza, supra, 23 Cal.3d at pp. 689-690, italics added.) The chats with Eve appeared to provide defendant with an opportunity to engage in sex with a 13-year-old girl, a crime. Even if a normally law-abiding person might be curious about the situation, such a person would not be induced to pursue the opportunity. (See id. at p. 690 [a normally law-abiding person would "normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully."].)
In short, the record demonstrates that Perverted Justice's conduct was not likely to induce a normally law-abiding person to commit the charged offenses. Therefore, the trial court properly denied defendant's request to instruct on entrapment.
Defendant claims, however, that the trial court erroneously excluded some evidence at trial which, had it been properly considered by the trial court, would have amounted to substantial evidence of entrapment. The evidence he claims was improperly excluded is his testimony regarding the content of telephone calls from Eve on the day of his arrest. This testimony was objected to on four separate occasions.
The first time, defense counsel asked, "Now, do you remember the content of these conversations on [January] 7th?" Defendant replied, "Just—she just really wanted me to come over." The prosecutor objected on hearsay grounds, and the trial court sustained the objection. Defense counsel proceeded to the next question.
The second time, defense counsel asked, "Why did you go after on the 7th after getting phone calls?" Defendant replied, "Well, I was gonna go because I was so curious, but then I just got—I just didn't feel like it. I just didn't want to drive. But then when she called me again, and I told her no on the phone, and she begged me to go. She begged me three or four times." The prosecutor objected on hearsay grounds, and the trial court sustained the objection and struck defendant's answer. Defense counsel immediately proceeded to the next question.
The third time, defense counsel asked, "But you did go?" Defendant replied, "I did go because she begged me to go." The prosecutor objected on hearsay grounds, and the trial court sustained the objection and struck defendant's answer. Defense counsel proceeded to the next question.
The fourth time, defense counsel asked, "Just give the jury an explanation why you went." Defendant replied, "Well, first of all, I thought about going before because I was so curious. And then I had to find out just for me. And maybe she would—could have been attractive and of course 18 and over. But I just—I don't know. I got tired of talking to her. And it was—I didn't feel like driving, so I just said, nah, I'm cool. I don't want to go. But then she started begging me." The prosecutor objected and moved to strike the answer as hearsay. The trial court sustained the objection on hearsay grounds.
On appeal, defendant asserts that the objections to his testimony of the content of the telephone calls were erroneously sustained because his testimony "was not offered for its truth, but rather for its effect upon himself, the listener." We conclude the argument has not been preserved for appeal and, if we did consider the additional evidence, it would not alter our conclusion.
"On appeal, we may not reverse a judgment for the erroneous exclusion of evidence unless '[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.'" (People v. Vines (2011) 51 Cal.4th 830, 868-869, quoting Evid. Code, § 354, subd. (a).) Here, defendant made no offer of proof or attempted otherwise to advise the court of the substance and purpose of the testimony he sought to elicit. Four times the prosecutor objected on hearsay grounds, and four times defense counsel failed to make an offer of proof in response. He has therefore failed to preserve the issue for appeal. (See People v. Livaditis (1992) 2 Cal.4th 759, 778.)
An offer of proof that might have resulted in the admission of the testimony is that Eve's statements were not offered for the truth that Eve wanted him to come to the house, but as an operative fact, or nonhearsay verbal act, evidencing Perverted Justice's conduct, which is arguably relevant to establishing entrapment. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714.) That is, whether Eve was telling the truth when she "begged" him to come over is immaterial; what matters for the purpose of entrapment is that she spoke words of inducement. This theory, however, was not asserted below or on appeal, so we do not address it.
Moreover, even if we consider defendant's testimony regarding the telephone calls from Eve, the evidence of entrapment is still insufficient. Three or four telephone calls from a purported 13-year-old girl begging one to drive 30 minutes to engage in sex is not likely to induce a normally law-abiding adult to commit lewd and lascivious acts on a 13-year-old girl. Thus, even if we consider the content of the alleged telephone calls, our conclusion would not change. B. Denial of Defendant's Motion to Continue Trial
Defendant also argues that the court's refusal to give an entrapment instruction was error because: (1) the trial court incorrectly ruled that Perverted Justice did not act as an agent of law enforcement; (2) the trial court relied on information about Perverted Justice not presented at defendant's trial; and (3) the trial court incorrectly considered defendant's subjective propensities and intent when determining whether there was substantial evidence of entrapment. Because we conclude the evidence was insufficient to support an entrapment instruction, we need not address these arguments.
Defendant contends the trial court erred in denying his motion to continue trial, thereby violating his constitutional right to due process. For the reasons that follow, we reject this argument.
1. Factual and Procedural Background
On Thursday, September 24, 2009, at 4:01 p.m.—the eve of trial—the prosecutor sent defense counsel an e-mail, stating: "Hi, Mr. Creary. We are set for the Sutherland jury trial tomorrow. As of this afternoon, I was made aware that you might want to run a Pitchess motion on . . . [¶] . . . [¶] . . . Investigator Richard Sheldon. If you have any questions, feel free to contact me. Natalie Pitre." Confused at the ambiguous message, defense counsel replied: "Who told you that?"
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
The next morning, the prosecutor explained to the court and defense counsel what the e-mail was about. Investigator Richard Sheldon, who was not being called as a witness by either party, was the "main investigator of all the Dateline cases." The prosecutor explained that the day before, another deputy district attorney told the prosecutor over the telephone that the investigating officer in defendant's case had heard a rumor from another officer that Investigator Sheldon had filed a false report about another officer.
The prosecutor later indentified "who the officer was who was the result of the complaint and who made the accusation to the other [deputy district attorney]." The person was identified as Senior Investigator Matthew Weinstein.
The prosecutor clarified that this was all rumor. The court asked how the rumor related to defendant's case. The prosecutor opined that it related to Investigator Sheldon's veracity in testifying, but noted that he was not being called as a witness. The court noted that because it was all a rumor, the court would not grant a motion to continue, but nonetheless was "going to look into it" over the weekend, and told the parties that by Monday each of them could preserve their objection.
The following Monday, defense counsel moved to continue the trial in order to investigate the rumor. Defense counsel argued that because Investigator Sheldon was involved significantly as the main investigator of the sting operation, his credibility was at issue. Defense counsel argued that this raised a Pitchess issue, and further, because the district attorney's office must have some more information, a Brady issue was also raised. The court responded that there was no factual substance and what was before the court was all rumor. The court observed that to grant a continuance based on a rumor would utilize an unnecessary amount of court resources and would require an inquiry into interpersonal relationships that was collateral to defendant's case. The court further noted that a continuance based on defendant's reason "would require an undue use of the Court's time . . . [¶] . . . [¶] . . . in having, essentially, a trial within a trial dealing with an interoffice relationship that we know nothing about that is based on rumor and innuendo."
Under Pitchess, a defendant has a limited right to discovery of a peace officer's confidential personnel records if those files contain information that is potentially relevant to the defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538.)
Brady v. Maryland (1963) 373 U.S. 83. Under Brady and its progeny, the prosecution has a duty to disclose to the defendant material exculpatory evidence. (See People v. Verdugo (2010) 50 Cal.4th 263, 279.)
After some further argument, the court denied defendant's motion to continue the trial because the rumor of a false report by Investigator Sheldon was unsubstantiated, had "nothing to do with this case," and Investigator Sheldon was not being called as a witness in defendant's case. The court then added that if either side decided to call Investigator Sheldon as a witness, the court would then hold a hearing outside the presence of the jury and determine what must be divulged.
Defendant contends the court abused it discretion in denying his motion to continue the trial. We disagree.
2. Legal Principles
"Continuances shall be granted only upon a showing of good cause." (Pen. Code, § 1050, subd. (e).) "The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge." (People v. Howard (1992) 1 Cal.4th 1132, 1171.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked. [Citation.]" (People v. Beames (2007) 40 Cal.4th 907, 920.) "Under this state law standard, discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered. [Citations.]" (Ibid.)
3. Discussion
"There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. [Citations.]" (Ungar v. Sarafite (1964) 376 U.S. 575, 589, italics added.) Our inquiry thus becomes: at the time defendant's continuance was denied, what circumstances were present, and what reasons were presented to the trial court?
Defense counsel requested the continuance "in order to further investigate and prepare and serve a Pitchess motion." Defendant essentially was asking for more time to substantiate a rumor that, if true, defendant argued would give rise to a Pitchess motion.
Defendant's argument does not survive scrutiny. Even assuming the rumor turned out to be true—i.e., that Investigator Sheldon did file a false report against another officer—the false report had no relevance to defendant's case. The rumored report itself was in no way related to defendant's case; it was about another police officer and involved an issue completely unrelated to the sting operation. If the false report was relevant to anything, it would have to be to Investigator Sheldon's credibility.
At the hearing, defense counsel contended Investigator Sheldon's rumored false report was "an issue involving the credibility and voracity [sic] . . . of an investigator of one of the law enforcement officers that was involved significantly in the investigation and preparation of this case." Later, defense counsel asserted that "[a]ny evidence . . . that bears upon [Investigator Sheldon's] credibility is relevant." Defense counsel further explained that Investigator Sheldon "apparently, according to the reports, was responsible and was involved in the investigation of this case prior to [defendant's] arrest. He was in communication with Perverted Justice. He took—on behalf of the Sheriff's Department, he managed the chat logs and the e-mails that were sent to him by Perverted Justice." So, defense counsel reasoned, "I would submit to the Court that it is very relevant whether this person is a liar or someone who falsifies reports or not, given the fact that he wrote a report in this case."
Although defense counsel referred to a report written by Investigator Sheldon "in this case," there is nothing in the record to indicate that the investigator ever wrote a report about defendant's case. Indeed, the only mentioned report that Investigator Sheldon was rumored to have written was about another officer in a matter totally unrelated to defendant's case.
Moreover, although defense counsel generally asserted that Investigator Sheldon's credibility was unquestionably relevant to defendant's case, he failed to establish how it was relevant. To be sure, if Investigator Sheldon handled defendant's chat logs, an attack on his credibility could raise a question as to whether he altered the chat logs. But defendant did not question the authenticity of the chat logs at the hearing. Even more telling, when defendant had the opportunity to challenge the authenticity of the chat logs when testifying at trial, he conceded that the chat logs were, in all material respects, an accurate representation of the nature of his chats with Eve.
Based on defendant's testimony, only a single line in the entirety of the chat logs was not in harmony with defendant's recollection of his chats with Eve. The chat logs indicated that upon viewing defendant's pictures, Eve told defendant: "You're hot." Defendant claimed that Eve said: "You're hot. I would do you." This single discrepancy is not a material difference; there is no doubt that Eve agreed to have sexual intercourse with defendant. And although defendant claimed that it was Eve who brought up the topic of sex, defendant also testified that he began talking sexually to Eve "to find out that she was older than 13."
For instance, defendant testified that he and Eve chatted about seven or eight times over a period of no longer than two weeks. He further testified that he initiated the first conversation by saying "hi," and that Eve claimed to be a 13-year-old girl. Defendant testified he started talking sexually to Eve "to find out that she was older than 13." Defendant described the content of his and Eve's chats as "a lot of explicit sex talk." Defendant explained: "Because the reason why I was talking about sex and these gross things, I would not—I didn't believe I was talking to a 13-year-old girl. I was sure of it. I would have never talked to—like that to a minor." (Italics added.) Defendant's testimony thus was not that the content of the chat logs was inaccurate, but that he lacked the requisite intent for his charged offenses. Thus, because defendant did not dispute the content of the chat logs, Investigator Sheldon's credibility was not an issue as to the chat logs.
Of course, if Investigator Sheldon was being called as a witness, his credibility would certainly be relevant. But neither party had planned on calling him as a witness. Moreover, the trial court addressed this possibility and made clear that if Investigator Sheldon was called to testify, the court would revisit the issue.
Defense counsel stated that he would "consider[] calling [Investigator Sheldon] as a witness, possibly," depending upon what information he received as a result of his investigation or Pitchess motion.
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In short, defendant's motion was based on an unsubstantiated rumor that an officer not being called as a witness had filed a false report against another officer in a matter wholly unrelated to defendant's trial. Defense counsel made a general assertion that the officer's credibility was relevant merely because the investigator was a key player in the sting operation and he needed time to investigate whether the rumor was true. The trial court denied the continuance, concluding that delaying the trial to investigate a rumored false report of an officer not being called as a witness regarding a matter unrelated to defendant's case would be a waste of judicial resources. The trial court noted that if the officer should be called, the court would revisit the issue. Under these circumstances, the trial court did not abuse its discretion.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
Richli
J.