Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC619867
ELIA, J.Appellant Ricky Cheung seeks reversal of a judgment entered after a jury convicted him of an attempted lewd act on a child under 14 (Pen. Code, §§ 664, 288, subd. (a)) and attempted distribution or exhibition of lewd material to a minor by e-mail (Pen. Code, § 288.2, subd. (b)). Appellant contends that the trial court violated his constitutional right to present a defense by precluding the testimony of an expert defense witness.
Background
The charges against appellant arose from a series of e-mail exchanges between him and a San Jose police officer posing as a 13-year-old female prostitute. In the afternoon of February 7, 2006, Officer Robert Dillon posted a listing on craigslist.com under the category of "Erotic Services." Using the title "Princess is back-w4mm (san jose downtown)," he wrote the following (with deliberate spelling mistakes to enhance his credibility): "Come spoil princess and I'll spoil you. I'm legit and hear to please. Don't be fooled because im 13. I can do it all. I'm descreet and worth it. Pleese no saviors. I'm only in need of your time. 50 reasons for half an hour and 100 for an hour." Thirteen minutes later, he received e-mail from "donbure@yahoo.com," an e-mail address used by appellant. In his message appellant said, "Hey, i wanna make 1/2 appointment for right now. do u have a pix? and whats ur contact number? im looking forward to meet u asap." Dillon replied (from the email address Daddiezprncess@aol.com), "Hey sweetie. sounds good. Im not look in to waste my time so i need to make sure u knoe im 13. u cool wit it?" Appellant said that he was "ok with it" and asked her rate. About 31 e-mail messages were exchanged for the purpose of setting up an appointment.
Officer Dillon explained that a code word such as "reasons" is often used to substitute for "dollars" to conceal prostitution.
Appellant wanted to meet "Princess" right away. They arranged a meeting at a local Starbucks, and appellant said he could be there in 15 minutes. They each described what they would be wearing, and Princess asked appellant to bring "rubbers" and some gum for her.
The arranged time was about 3:25 p.m., but Dillon had another case that took priority and no officer showed up at the Starbucks that day. When he returned to the office, he made up an excuse: "Princess" said she couldn't get a ride and had to walk, and by the time she arrived at the Starbucks, she did not see him there. Appellant said he had been there until 4 p.m. He suggested they meet another time, either that night or the next day. They set up another meeting for 12:30 p.m. the next day, February 8, 2006. At one point that evening Dillon sent a photograph of another police officer taken when she was 13, both to enhance credibility and to give the recipient an opportunity to see how young a 13-year-old was and back out of the encounter. Appellant did not, however, express any reservations or any suspicion that Princess might be a police officer.
The next day they continued making plans to meet. Between 11 a.m. and 12:16 p.m. appellant sent three messages in a row confirming the details of the appointment. The officer reminded appellant to bring condoms and asked him for mints.
On that day, Officer Dillon could not be there, but he gave a description of appellant and his car to two detectives and told them what evidence they could expect to recover—namely, condoms and a camera. When appellant arrived at the appointed place, the detectives questioned him. Appellant said he was there to meet a 13-year-old girl, and they arrested him. They took into evidence two condoms, a cell phone with camera capability, and $123 in cash.
Officer Dillon neglected to ask the detectives to look for gum or mints. They did, however, find gum in appellant's car.
Officer Dillon testified that he was able to save all of the e-mail messages between him and appellant, except for the first one in which "Princess" mentioned again that she was 13 years old. In none of those messages, according to the witness, did appellant ever say that he thought it was a police setup. However, Kan Cheung, an unrelated friend of appellant, testified that in an on line "chat" between 1:11 and 1:55 a.m. on February 8, appellant forwarded to him the posting from Princess. Appellant referred to the 13-year-old as "jail bait"
Officer Dillon explained that he had not sent a photograph upon the first e-mail contact, when he inquired whether appellant was "okay" with Princess's being 13. He always responded to initial inquiries the same way, by cutting and pasting a standard text response; his practice was not to send a photo at first. When the prosecutor showed the witness Defense Exhibit D, a printout of a February 7, 2006 e-mail message on which a photo was attached, the officer stated that part of it was a forgery. The first part of the message sounded like what he had written: "Hey, sweetie. sounds good. Im not look in to waste my time so i need to make sure u knoe im 13. u cool wit it?" The last line, however--"Heres my pic"—was not part of his message, as he had not sent the photo at this early point in the correspondence. The officer noted that the date stamp at the bottom of the document was partially covered by the photographic image, "which means it was placed over the top of that." In his opinion, the image was too low on the page, covering the part of the page where there would be a space for a footer instead of being moved to the next page. When the officer did send the photo, he used a cut-and-paste method to embed the photo in the message rather than send it as an attachment. The text of the message was sent in the afternoon of February 7, but he did not send the photograph until that night after the failed first meeting.
To rebut the officer's assertion that the e-mail message had been altered to appear as if it had been sent with a photograph, appellant sought to introduce expert testimony by Ronald Short, a specialist in computer forensics. During voir dire at an Evidence Code 402 hearing, Short became ill and the hearing was continued to the next day. After hearing Short's description of his expertise and argument by counsel, the court ruled that Short did not have sufficient recent experience to serve as an expert in the authenticity of e-mail messages. The defense offered no other witnesses and rested.
Discussion
Appellant contends that the trial court deprived him of his Sixth Amendment right to present a defense by precluding Short's testimony. He maintains that Short would have authenticated the proffered e-mail message and photo, thereby conclusively demonstrating that appellant believed he was corresponding with a police officer, not a child prostitute. According to appellant, he was only engaged in "a game of cat and mouse with law enforcement" and lacked the requisite intent to meet a 13-year-old for sex. With the exclusion of Short's opinion testimony, the jury (1) had no evidence of an innocent mental state and (2) was left with the impression that appellant had "tried to pull the wool over their eyes by introducing faked documents"—that is, he was not only "a man who would have sex with a child, but a liar in the bargain."
The People respond to appellant's argument with reference to the "chat" between appellant and Kan Cheung. It is apparent from both the record and appellant's argument, however, that only the e-mail with the photo attachment was the subject of Short's proposed testimony.
Appellant acknowledges the standard by which we review his assertion of error. "As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused." (People v. Page (1991) 2 Cal.App.4th 161, 187; accord, People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Furthermore, any error in excluding the testimony is subject to reversal only if prejudice is shown. Although appellant cites both Chapman v. California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818, 836 as applicable to an evaluation of prejudice, this court will follow the latter case, as the trial court's ruling " 'did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense.' " (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317, citing People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
The trial court's ruling, even if erroneous, could not have been prejudicial. The content of Defense Exhibit D, the printout of the e-mail message with the photo attachment, was not controversial with the exception of the photograph. Officer Dillon did not dispute that he sent the photograph; he only insisted that he had sent it (by pasting it in the message, not by attaching it) after the first failed meeting on February 7, not early in the correspondence with appellant, as the exhibit suggests. The only difference Short's authentication of the exhibit could have made is to rebut the officer's opinion that the original message was altered before appellant printed it and brought it to court. Such a rebuttal might have had the effect of dispelling the impression left by Officer Dillon that appellant had tampered with evidence. But it would not have weakened any inference that appellant had intended to meet a 13-year-old for a sexual encounter.
The e-mail exchange itself speaks volumes. In his first message responding to the "Erotic Services" listing, he asked for an appointment with Princess "asap." Once he ascertained the rate for her services, he asked if he would be seeing her "rite now." They exchanged information about what they would each be wearing when they met, and appellant asked for the address of the Starbucks. After Princess explained that she was late because she had had to walk, appellant suggested that they meet "either tonight or tomorrow day time?? let me know, I got rubber and gum." Once they arranged a time for the next day, appellant asked if she had a place for them to meet, or "any suggestion place like hot tub or something. looking for about 1/2 hr to try the taste, if good then next time will gather for an hr." Princess asked if he wanted "to fuk or just suck," and he replied that he wanted both; and he asked again "where r we gonna have this done at? u have a room to host or wanna get it done in my car? or watever . . . ." Appellant again said he was "looking forward to" meeting her, verified her plans to wear certain clothing, asked if she had a whole-body picture, and assured her that he had the requested camera. She asked his race; he replied that he was Asian. He asked if they could "go to [her] house and do it ? cuz acura is kinda not big enough. wanna get lay and get comfortable." Princess then said she had somewhere they could go; she reminded him to bring "rubber" and asked for mints. She also asked whether, if "it goes good," he would want "seconds." He replied, "yah, definitelly if it goes good ill go 4 senconds." He expressed the desire to use "a room or some building's back stairs," which would be "more exciting" than his car. They finally confirmed the 12:30 meeting time at the Starbucks and he said he would be on his way in 10 minutes.
This correspondence makes it abundantly clear that appellant fully intended to avail himself of Princess's services as a 13-year-old prostitute. He even showed up at the appointed time, in the attire he had said he would be wearing, and in possession of the requested items, and he told the arresting officer that he was there to meet a 13-year-old girl. Nothing in the proposed testimony by Short would have even suggested that appellant was knowingly playing any sort of cat-and-mouse game. In the circumstances presented, there is no reasonable probability that the result would have been different even if Short had been permitted to authenticate the missing e-mail message.
Disposition
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.