Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF128328, Michael B. Donner, Judge.
James J. Brustman for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
A jury convicted defendant, Michael Burks, of attempted lewd and lascivious acts on a minor (Pen. Code, §§ 664 & 288, subd. (a)). He was granted probation and appeals, claiming the evidence was insufficient to support his conviction. We reject his contention and affirm. In a petition for writ of habeas corpus, Burks claims he was incompetently represented by counsel at trial.
Defendant filed a petition for writ of habeas corpus on this issue (case No. 50168), which we ordered considered with this appeal. We will resolve that petition by separate order.
Facts
A volunteer at Perverted Justice testified that her organization seeks to interfere with people who look for girls or boys on the Internet to engage in sexual activity with them. She explained that Perverted Justice volunteers pretend to be children and respond to overtures by people on the Internet, but do not initiate contact with them. She used childhood photographs of another female and a juvenile sounding on-screen name when she conversed with defendant, a Homeland Security special agent, in a regional chat room for four days in January 2006.
During their first chat, defendant asked the volunteer if she wanted to meet up and have some fun. The volunteer said she would but her father was there. Defendant offered to meet her somewhere else. Defendant told the volunteer he was 30 years old and she asked him if he knew she was 13, as her profile, which one can click on while having a chat, stated. Defendant said he thought she was 19. Defendant then said the volunteer was jailbait, a statement he repeated, along with the statement that she was 13 years old and inappropriate contact with her was illegal. They continued to chat for awhile and then ended their conversation.
The following day, the volunteer contacted defendant and told him that her father was going to leave the home over the impending weekend to visit her mother, who was in rehab. Defendant told the volunteer to ask her father if she could stay home alone, rather than go to her grandmother’s for the weekend, as was the father’s plan for her. Defendant repeated twice that the volunteer was 13 years old. Eventually, the volunteer told defendant that she would be able to stay home alone. He asked her if she was sure she was not 18 and she said she was not. Defendant told the volunteer that he was a criminal investigator and he could lose his job and go to prison for having inappropriate contact with her. He again called her jailbait. He indicated that he knew what she looked like. He denied being married or having a girlfriend. He again stated that she was too young and was jailbait. The volunteer told defendant her father would be leaving the next morning to visit her mother. Defendant told the volunteer that he and a woman with whom he was sexually involved in high school were recently communicating with each other over the Internet while both were naked. Defendant acknowledged seeing photos of the volunteer and she then resent them to him and he viewed them again. He commented that she was cute. He asked her what sexual activity she has engaged in and whether she had gone “all the way.” Defendant said he cared how old the volunteer was because sexual contact with a minor is illegal. She told him that if he was 17, she would make him fall in love with her. Defendant repeated that he was 30, the volunteer was 13, and it was too bad she was not 18. He said that if he came to see her, he would get in trouble. He repeated their respective ages. He agreed to take her shopping, then added that the webcam was going to get him into trouble. He talked about getting into trouble by having sex with her. During questioning by defendant, the volunteer said that she lost her virginity over the summer, when she was 13. Defendant asked her questions about the male with whom she lost her virginity. She disclosed that there were five other males with whom she had engaged in sexual activity. He asked her what she liked to do sexually and if she wanted to get drunk. She asked him if he wanted to have sex with her and he said yes. They then discussed having sex. Defendant asked her, concerning seeing something on the webcam, “What if you’re a cop, and I’m going to get busted?” He said he was afraid she’d say something. He said he would be naked at her house. They agreed he would come over after her cleaning lady left at 1:30 p.m. Defendant talked about fooling around at her house. He asked her if she was sure she wanted to have sex and she said she was. Defendant said he was not sure he could go through with it-that it seemed wrong to him because he was 30 and she was 13. The volunteer replied, “Then don’t. Whatever.” Defendant asked her again if she wanted him to come over and have sex with her, then leave and she said yes. He told her that she was going to get messed up and sweaty. He said he would be there at 2:30 p.m. She asked him to bring alcoholic lemonade. He asked her what kind of sexual activity in which she wanted to engage. She replied that she liked to kiss. He asked her what else she liked. She asked him if he wanted her to perform oral sex on him. He asked her if she was good at it and if she “finishes.” She told him she was going to get drunk. He asked her what she would not do and she responded that she would not engage in anal intercourse.
Defendant categorizes the references to sexual activity between defendant and the volunteer as “relatively tangential” a view with which we disagree.
Defendant categorizes this as discussing hypothetical sex, a description with which we disagree.
Defendant did not appear at the sting house at the appointed time and when he and the volunteer chatted later, he said he was just coming over to see her and nothing more. He said he did not think he could have sex. He reminded her that she was going to perform oral sex on him. He again asked her what sexual activity in which she wanted to engage. She repeated that she already told him kissing. An hour and 10 minutes passed and she asked him if he could come over that night or the next day. He said he really wanted to see her. He asked her if she wanted to see him or “do” him. He asked her if she would wear a skirt “for easy access.” He asked her what the latest was that he could come over. She replied eight o’clock.
On January 7, defendant initiated a chat with the volunteer. He said that they might meet a few times, but “nothing serious” was going to happen. He said all he wanted to do was “kick back” but not go out or buy her alcoholic beverages because that would “open a Pandora’s box.” He asked her if she had any alcohol at her home and she said she had one alcoholic lemonade. He said if he came over, he could not stay long. He said he would come for one to two hours and they could watch a movie. He said he would be there about 2:30 p.m., but he had to leave by 5:00 p.m., as he was going to the gym with a friend. He said he just wanted to meet her and say hi. She told him she had to take a shower. He asked her for her address. They then had a brief phone conversation, during which another Perverted Justice volunteer with a childish sounding voice played the part of this volunteer. During the conversation, defendant confirmed that he was coming over. Both said during the call that they had to shower. She told him to hurry up and he replied, “You want me that bad, huh?” He asked her why she had to shower and brush her hair and her teeth.
The volunteer, who had two years experience, testified that people commit to engaging in sex, then “backpedal” as defendant had done.
A Riverside County Sheriff’s Department sergeant testified that his office had a sting house in Mira Loma, the address of which this volunteer gave defendant as her home. If adults solicited for sexual activity the Perverted Justice volunteers who posed as children on line, he and his cohorts would show up at the sting house and arrest the adults. The sergeant and other sheriff’s investigators were stationed in a recreational vehicle which was parked in the driveway of the sting house’s next door neighbor. Fifty-two adults showed up at the sting house over a three-day period in January 2006, and all were arrested by the sheriff’s office. When defendant arrived at the sting house, and parked across the street from it, there was another suspect down the street and a third that was entering the sting house in precisely the manner the volunteer had asked defendant to enter it. The sheriffs arrested all three simultaneously, between three and five minutes after defendant had arrived. On cross-examination, the sergeant testified that Perverted Justice had computers and phones in the second story of the sting house, from which they engaged in phone calls with suspects. Also present in the house was a crew from the television show, “Dateline.”
Defendant testified, admitting that it was inappropriate for him to discuss sexual matters on January 5 and 6 with someone he believed to be 13, but he claimed he was talking to others in the chat room who were over 18 about such matters and he lost track of with whom he was speaking. He maintained that he had no intention at any point of engaging in any sexual activity with the volunteer. He planned to go by the sting house, 43.6 miles from his home, and say hello, then go to the home of a friend, who lived nearby. He claimed that when he was one to two and one-half minutes from the sting house, he called whom he thought was the volunteer a second time and said that he was just coming by to say hello, he was not going to stick around and “absolutely nothing is going to happen” to which the recipient of his call agreed, telling him to continue on to the sting house. He also claimed that when he parked across the street from the sting house, he called a third time and told the volunteer to come outside so they could talk for a minute, then he had to go. At first, she insisted he come in the house, then she agreed to come outside. He admitted that he saw the other man approach the house and assumed that the volunteer had made plans to have him come there as well. He realized that it was “silly” and he had no idea why he was there. He called her again and told her there was another person outside and he was leaving to see his friend. She asked him to come back later if he decided to leave. He said he would not and was going to leave, but he was stopped by a sheriff’s deputy.
The woman who spoke with defendant by phone stated in a stipulation that she had no specific recollection of this conversation and, although she could not state with certainty that he did not call her on this occasion, it would be unlikely that he did.
Issue and Discussion
Defendant contends there is insufficient evidence to support his conviction for attempted lewd and lascivious acts on a minor. We disagree. “In our limited role on appeal, ‘[c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the... jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.] Further, ‘if the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] Accordingly, we need not-and do not-address all of defendants’ assertions of conflicts in the evidence, or their alternative theories regarding the inferences that should have been drawn from the evidence.” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.)
Defendant contends the evidence was insufficient because there was no evidence that he brought with him instrumentalities he could use to molest the volunteer and because he did not walk into the sting house. However, he drove over 40 miles to get to the house. He failed to walk in, according to his own testimony, because he saw the other suspect enter in the same manner he had been instructed and he assumed that the volunteer had summoned this man as well. We are unaware of what instrumentalities are necessary to commit lewd and lascivious acts on a minor who is sexually experienced, other than the body parts with which defendant arrived. As for alcohol, he had solicited from the victim that she had some on hand, so there was no need for him to bring any. The fact that on January 7, defendant may have appeared as a man with a devil on one shoulder and an angel on the other, whereas, before, there had been only a devil, did not prevent him from asking her if she had alcohol on the premises, telling her he was going to shower and asking her if she wanted him “that bad.” Perhaps he was struggling with his conscience-perhaps he was playing the tease. In either case, it was for the jury to make the inference and a reasonable one was that defendant continued his prior clear intent of having sexual contact with the volunteer.
Disposition
The judgment is affirmed.
We concur: HOLLENHORST J., CODRINGTON J.