Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA269199. Craig Veals, Judge.
Law Offices of Ronald Richards and Associates and Ronald Richards; Cole & Loeterman and Dana Cole for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Michael Dean was convicted of attempting to send harmful messages to a minor (counts 1-5; Pen. Code, §§ 664 & 288.2, subd. (b)), and attempting to commit a lewd act on a child (count 6; §§ 664 & 288, subd. (a)). He was placed on five years of formal probation with 180 days in county jail.
All statutory references are to the Penal Code unless otherwise stated.
The evidence showed that on numerous dates in June and July of 2004, appellant used his computer to send sexually graphic e-mails and photographs to a person he thought was a 13-year-old girl named Hailey. He was actually communicating with two male police detectives who were pretending to be Hailey as part of a sting operation investigating sexual abuse of children through computers. Appellant was arrested when he arrived at the Los Angeles Zoo on July 22, 2004, for a prearranged meeting with Hailey. Counts 1 through 5 were based on his sending pornographic photos on specific days. Count 6 was based on the combination of the Internet communications, his showing up at the zoo, and certain physical evidence that was found in his truck and home computer.
All events occurred in 2004 unless otherwise stated.
Appellant contends: (1) There was insufficient evidence to support his conviction on count 6. (2) For counts 1 through 5, the trial court should have instructed on a lesser included offense. (3) Some of the items of physical evidence were erroneously admitted.
We find no error and affirm.
FACTS
1. Prosecution Evidence
Much of the People’s case consisted of testimony from the two detectives, Robert McCarty and Robert Cervantes, and an oral reading of the 109-page transcript of the steamy e-mail conversations. McCarty testified that sexual abuse of a child on the Internet typically involves “grooming,” in which the suspect befriends the victim to find out the child’s desires and vulnerabilities.
Shortly before noon on May 18, McCarty entered an America On Line chat room called “I Love Older Men,” using the screen name “Skater Hailey 1990.” We will hereafter refer to Hailey as the recipient and sender of e-mails with that screen name, although Hailey was actually McCarty or Cervantes.
Within a few minutes, appellant contacted Hailey using the screen name, “L.A. Wind Rider 88.” He said his name was Mike, he was 49 years old, and he lived in Beverly Hills. Hailey told him she was 13 years old and asked if that was “okay.” He responded, “Well what have you got in mind? Laughing out loud.” She said she didn’t know. He asked her if she was curious. She said, “Yep.” He immediately asked, “What about sex, older men?” She said she was a virgin. She asked if that was “okay.” He responded, “Well do you still wish to be a virgin.” She answered, “Not if I met a nice guy.” He said, “Then yes, it is fine.” He offered to help her with her “curiosities,” as the chat room she was in showed she must be thinking about that subject. She explained that she was thinking all the time about older men, which included having an older man “take care” of her. He asked if she meant, “sexually or otherwise.” She responded, “That too, to teach me I guess.” Appellant answered, “Of course.”
Appellant asked Hailey where she lived. She said, “Venice.” She asked him where he lived. He answered, “Beverly Hills,” which was “[p]retty close” to her. He asked if she had a boyfriend or a girlfriend. She said she did not. During their ensuing conversation, she told him she was thinking about the age of 27 as the age for an older man. He told her he was “much older than that” but was “in pretty good shape.” He described himself as six feet tall, 198 pounds, and fit. Hailey asked appellant if he liked the beach. He said he liked looking at scantily clad women and girls and frequently rode his Harley-Davidson motorcycle at Venice Beach. He said that riding his motorcycle in the wind was “the most fun you can have with your clothes on.”
Appellant then observed: “Indeed it would be fun to ride with you and go to a nice place and enjoy each other but oh I am too old.” He asked for, and was given, details about the ages of Hailey’s parents and Hailey’s height and weight. He told her that she sounded pretty, and he loved petite ladies and girls. She told him she was popular, but the boys her age were “geeks.” He agreed that those boys were at an “awkward age.” She said that was why she liked older men.
At that point, appellant became more aggressive. He told Hailey that she should “find a man or older boy to teach you and show you the magic of mind blowing sex[,] to show you how your body can respond to the right touch.” She said she had no experience. He told her an older man would be her teacher and give her “that delightful experience.” He asked her if she masturbated. She said she did not. He gave her detailed, graphic instructions on how to masturbate, which was her “first lesson” from him. He told her to experiment with various ways of touching herself. He said, “If you find the right []way you will have an orgasm and it will blow your mind.”
Appellant also told Hailey to imagine that an older man was licking her vagina. They agreed to talk again more the next day. He wanted to hear about her experience with masturbation. He asked about the size of her breasts. He also told her to erase the “history” of their conversations from her computer, so her mother would not see them. She told him she had a girlfriend who had sex with her boyfriend. He asked what the girlfriend said about “her first time.” The girlfriend had said it was painful. Appellant told Hailey that he knew how to make Hailey’s first act of sexual intercourse less painful, by stimulating her vagina, to make her very excited. He said it would be a big step for her, so it was important for her to wait until she was sure and have the experience with the right man. He thought he might make her “a little angel with a big ass smile.”
During the ensuing e-mails over the next two months, appellant and Hailey exchanged details of their lives, joked about how “naughty” and “nasty” their thoughts were and had explicit discussions of sex acts. Appellant told Hailey that he had a live-in girlfriend who did not know about his conversations with Hailey. Hailey told him that her parents were divorced, she lived with her mother, and she was being home-schooled. He frequently reminded her to practice masturbation, asked her about her experiences with masturbation, and told her that masturbation would prepare her for the sex acts they would perform when they were together. He asked her to imagine how it would feel when they were engaging in various sexual activities. He told her how much he wanted to orally copulate her. He discussed various ways he was going to give her sexual pleasure, such as through touching, kissing, licking, and sucking her genitals. He promised that he would not force her to do anything she did not want to do. He asked her if what he said was making her excited and if her vagina was wet. He wanted to know if she was ready to have sex. He promised he would use a condom to avoid a pregnancy.
The detectives used home-schooling to explain why Hailey was at home when a 13-year-old would normally be at school.
Pretending to be Hailey, the detectives expressed interest in the various sexual activities that appellant described.
In addition to the obscene e-mail exchanges, appellant sent Hailey numerous photos of individuals engaging in sex acts, sometimes with multiple partners. Appellant asked Hailey to choose the picture that excited her most. He told her that after they met and she became comfortable with him sexually, they could add more partners. He repeatedly reminded her that she was not to tell her girlfriends or her mother about him, as he could get into trouble and go to jail. He sent her photos of himself, wearing clothes, and repeatedly asked her for a photo. The detectives eventually sent him a photo that was supposed to be of Hailey but was actually a photo of a female sheriff’s deputy, taken when she was Hailey’s age.
Appellant frequently told Hailey that he wanted to meet her. He directed her to an Internet website that sold vibrators. He told her he was going to bring her a vibrator when they met. He asked her to choose a color. She requested a pink one. He told her he would teach her how to use it.
Appellant and Hailey often discussed places they might meet. Hailey eventually suggested the zoo, which she could reach via bus. They agreed to meet at the zoo at 11:00 a.m. on July 22. Hailey initially said she would wait for appellant at a bench in front of the ticket area. They later agreed to meet at the gift shop near the zoo’s entrance. They discussed the clothes they would be wearing. Appellant said he would bring his digital camera, so he could take pictures of her. He promised to bring a surprise, “a fun little thing,” which had a name that started with the letter “v.”
Officer McCarty testified that he changed the proposed location for the meeting from the front of the zoo to the gift shop, which was 50 to 75 yards from the zoo’s entrance because he drove to the zoo and saw that there was construction underway in front of it. He also testified that it was possible to enter the gift shop without purchasing a ticket for the zoo.
Appellant also told Hailey that they would leave together after they met at the zoo. They might go for a drive. They might only talk. As usual, he told her that he would not force her to do anything that she did not want to do.
The day before the meeting was to occur, appellant asked Hailey what animals she wanted to see at the zoo. He then said they were not actually going into the zoo. He asked her if she was “expecting to do everything” when they met. She said she wanted to do everything they had discussed. He told her he knew she was excited. He wanted her first sexual experience to be special. He asked her if she would be comfortable if he took her to a hotel, took off her clothes and “did things” to her. She replied, “That sounds nice. I leave it up to you.” He told her to immediately put her finger into her vagina and start playing with herself. She expressed reluctance. He told her to do what he asked, as “[t]omorrow starts now.” At his insistence, she said she was doing what he asked, and it felt good. He told her that he had given that order to see if she would do it and to get her accustomed to her body. He also told her that “tomorrow” she “might look down” and see him licking her vagina. She sent him a “wink face” symbol. He said that response was easy for her now, but might not be, “tomorrow.”
The final e-mail interchange occurred at 7:09 a.m. on July 22. Appellant and Hailey expressed their excitement about meeting later that morning. At approximately 10:46 a.m., appellant arrived at the zoo’s entrance and was arrested by two uniformed police officers. The arrest was videotaped by a surveillance camera. The jury watched the videotape at the trial. At the time of the arrest, McCarty was waiting at the nearby gift shop, in plain clothes. He had obtained a search warrant for appellant’s truck and home computer by using America On Line records to connect appellant with the screen name, “L.A. Wind Rider 88.” The truck was in the parking lot at the zoo. In its center console, there were condoms and a pink vibrator. A digital camera was on the floor. In a pouch attached to the back of the driver’s seat, police officers found a stun gun and a pornographic magazine. The vibrator and stun gun were operable.
During the booking process, appellant asked what would happen to his truck. An officer suggested that he call a friend to pick it up. He responded that “he didn’t want his friends to know about his indiscretions.”
A huge number of pornographic pictures were stored on appellant’s computer, including the photos he had sent to Hailey. There were no pornographic pictures of children. The photos were all of adults, except for a few that showed a female who might be a minor.
2. Defense Evidence
Dr. Daniel Dorman, a psychiatrist, had been treating appellant once a week for two years, since appellant was arrested in this case. Dorman did not believe that appellant met the medical definition for pedophilia. Appellant had admitted to Dorman that he had fantasized about “getting together with” Hailey, even though he was “quite distressed and remorseful about what he’d done.” Dorman believed that there were two “reasonable conclusions” about what appellant would have done. Given appellant’s “overall picture,” it was “less likely” that he would actually have acted on his fantasy, but it was also possible that he would have acted on it, since he drove to the zoo with the objects in his car.
Appellant’s girlfriend, Susan Ellis, testified that she had had lived with him as his girlfriend for 16 years. They had a normal relationship and he interacted appropriately with the children they knew. She loved him and did not believe he was a child molester. She did not mind that he liked pornographic magazines. She did not like it that he chatted with women online and had not known about his conversations with Hailey. Based on what appellant told her, she thought he had been playing out a fantasy that originated in chatting online and had not intended to have sex with anybody when he went to the zoo.
Ellis provided innocent explanations for the objects in the truck. She said that she and appellant each kept stun guns in their respective vehicles. They had purchased the weapons years earlier when she had a job that required her to walk to her car at night. He kept a camera in his truck because he used it in connection with his work as a building contractor. They kept condoms in the truck because they used them for contraception when they took road trips. He had bought the pink vibrator years earlier. She did not like it and never touched it, but he took it in his truck on road trips.
Appellant’s brother and the brother’s fiancée similarly testified that they had known him for years and had never observed any strange behavior. They did not think he would have harmed a child or would have actually entered the zoo.
3. Prosecution Rebuttal Testimony
Officer Daniel Aguirre and his partner, Officer Jose Omeldo, were the uniformed officers who arrested appellant. They were waiting in their patrol car behind some bushes. Around 10:45 a.m., they received a radio call, which caused them to drive across the parking lot to the front of it. As they approached the curb, at the bottom of the stairway, they saw appellant above the stairway, walking back and forth. When he saw the patrol car, he turned toward a second stairway that also led down to the parking lot. Omeldo jumped out of the patrol car and went up the second stairway. Appellant then turned toward the first stairway, which Aguirre was climbing. Aguirre told him to stop. He ignored that command. Aguirre repeated it and told appellant to put his hands behind his back. The two officers then made the arrest without further incident.
DISCUSSION
1. Sufficiency of the Evidence for Count 6
Appellant argues that there was insufficient evidence that he attempted to violate section 288, subdivision (a), because his intent was not clearly shown and because he abandoned the plan after he arrived at the zoo. Applying the appropriate standard of review (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054), we find that the evidence was sufficient.
“An attempt to commit a crime has two elements: the intent to commit the crime and a direct ineffectual act done toward its commission. The act must not be mere preparation but must be a direct movement after the preparation that would have accomplished the crime if not frustrated by extraneous circumstances.” (People v. Carpenter (1997) 15 Cal.4th 312, 387; see also People v. Memro (1985) 38 Cal.3d 658, 698.)
Appellant maintains that his actions were not an attempt to violate section 288, subdivision (a) because he did not buy a ticket, and the officers arrested him when he had changed his mind and was walking away from the entrance.
Appellant’s argument misstates and overlooks some of the salient facts. The evidence showed that he arrived at the zoo’s entrance about 15 minutes before he was supposed to meet Hailey at the gift shop. The gift shop was 50 to 75 yards from the entrance and not far away from it as appellant maintains. He did not have to buy a ticket for the zoo to enter the gift shop. From that evidence, the jury could reasonably have concluded that appellant walked back and forth near the entrance because he arrived too early for the meeting and decided to intercept Hailey at the entrance before she reached the gift shop.
Appellant’s briefing overlooks the evidence that he turned and walked toward one of the staircases to the parking lot when he saw the uniformed officers approaching. His attempt to flee when he was caught does not mean he changed his mind about committing the crime.
Appellant also argues that his intent was not clear, so it would be incorrect to apply the rule that only slight acts in furtherance of the criminal design are necessary if intent is clearly shown. (People v. Memro, supra, 38 Cal.3d at p. 698.) He further maintains that his acts were insufficient because, unlike the defendant in People v. Reed (1996) 53 Cal.App.4th 389, 395, he did not actually walk into the room where he intended to commit child molestation. We find that his intent was clearly shown, and his acts were sufficient based on these facts: During the e-mails, appellant sought to make Hailey enthusiastic about having sex with him by telling her in detail how much pleasure he would give her, and constantly reminding her to masturbate, to prepare herself for sexual relations with him. Over time, he told her that they would perform sex acts after they met at the zoo, he would use condoms to prevent a pregnancy, he would teach her how to use the vibrator he was bringing her, and he would bring a camera to take pictures of her. He traveled all the way from Beverly Hills to the Los Angeles Zoo, arriving slightly early for the meeting. He had the vibrator, camera, condoms, and a sexually explicit magazine in his truck along with a stun gun. That combination of facts was amply sufficient to support his conviction.
Appellant’s briefing relies heavily on an out-of-state case, State v. Duke (Fla.Dist.Ct.App. 1998) 709 So.2d 580. In Duke, another Internet sting case, the court found insufficient evidence of attempted sexual battery when the defendant was arrested when he arrived at the parking lot where he was supposed to meet the underage girl. We find Duke to be inapposite because there was no evidence that there were objects of that type that were found in appellant’s truck. We also find it significant that in State v. Glass (Idaho App. 2003) 87 P.3d 302, 306, the court reviewed numerous similar decisions, rejected Duke, and recognized that most courts have “concluded that arranging a meeting place and arriving there at the prearranged time are sufficient to constitute a substantial step in furtherance of the commission of a sex crime against a minor.”
2. Instructing on a Lesser Included Offense (Counts 1-5)
Appellant argues that the trial court committed reversible error by failing to instruct sua sponte on the misdemeanor offense in section 313.1, subdivision (a) (section 313.1(a)), as a lesser included offense of the wobbler offense in section 288.2, subdivision (b) (section 288.2(b)). Defense counsel raised the lack of the instruction in the motion for new trial but did not request such an instruction before the case went to the jury. Even so, an instruction on the lesser included offense had to be given sua sponte if (1) section 313.1(a) was a lesser included offense of section 288.2(b), and (2) there was substantial evidence that appellant was guilty only of section 313.1(a) and not of section 288.2(b). (People v. Lacefield (2007) 157 Cal.App.4th 249, citing People v. Birks (1998) 19 Cal.4th 108, 117-118.)
Section 288.2(b) provides: “Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet, . . . or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.”
Section 313.1(a) provides: “Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly sells, rents, distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter to the minor shall be punished as specified in Section 313.4.” The punishment set forth in section 313.4 is either a fine, imprisonment in county jail for up to a year, or by both a fine and imprisonment.
People v. Jensen (2003) 114 Cal.App.4th 224, 243-245 (Jensen), held that section 313.1(a) is a lesser included offense of section 288.2(b). We need not analyze that ruling in detail because, assuming that it is correct, there was no evidence here from which the jury could have found that appellant violated only section 313.1(a), and not section 288.2(b).
Jensen, supra,114 Cal.App.4th 224, contains an important factual distinction from the facts here, which justified its holding that an instruction on the lesser included offense was necessary. In Jensen, the defendant exchanged sexually explicit e-mails with underage boys, and sent them pornographic photos, but he never arranged to meet them. The court found that “[r]easonable jurors could have concluded that defendant distributed harmful matter to [the minor victims] believing that they were minors and harbored the intent to arouse himself or them but lacked the intent to have any physical contact with them.” (Id. at pp. 244-245.) In other words, the absence of an intent to actually meet and seduce the minors meant the jury might have found the defendant guilty only of violating section 313.1(a), and not section 288.2(b).
Here, in contrast, appellant’s communications with Hailey were directed toward an actual meeting with her, at which she would lose her virginity to him. He professed that he knew how to decrease the pain of her first act of sexual intercourse. He repeatedly told her to masturbate, which was supposed to prepare her for having sex with him, and also to teach her to follow his sexual commands. To increase her enthusiasm, he graphically described the various pleasures he would give her. He promised to teach her how to use a vibrator and brought one with him in the truck when he went to the zoo along with other items that could potentially be useful for sexual abuse of a minor.
Thus, since there was no substantial evidence that appellant committed only the lesser offense, and not the greater, the trial court did not err in failing to instruct on section 313.1(a). (People v. Breverman (1998) 19 Cal.4th 142, 165.)
3. Evidentiary Rulings
A. Admission of Young Adult Pornography in Appellant’s Computer
The jury never saw most of the thousands of pornographic photos that were found inside of the hard drive of appellant’s computer. He does not attack admission of the particular photos that he sent to Hailey. He maintains, however, that the trial court erred in admitting seven other photos, which were selected, for the purpose of criminal intent, because they depicted females who might have been underage. He argues that the seven photos should have been excluded because he could legally possess them, they constituted improper character evidence, they were irrelevant to his guilt, and they were introduced in violations of his First Amendment rights under the United States Constitution.
It appears that the handful of pictures of relatively young women were properly admitted on the issue of intent. (See U.S. v. Curtin (9th Cir. 2007) 489 F.3d 935, 948.) Assuming arguendo that they were erroneously admitted, there was no possible prejudice, since the jury saw the pornographic photos that appellant actually sent, and heard the graphic descriptions of sex acts that he provided in the e-mails.
B. Sexually Explicit Magazine
Appellant complains that the admission of the sexually explicit magazine that was found in his truck was unnecessarily cumulative. It appears that he waived this issue by not raising it below. In any event, the argument lacks merit since the presence of the magazine in the pouch that also held the stun gun tended to show his intent to commit lewd acts on the morning that he went to the zoo.
C. The Stun Gun
Prior to the trial, appellant sought to suppress the stun gun that was found in his truck, on the ground that it was seized in violation of his Fourth Amendment rights. He repeats that argument on appeal.
We find no error in denial of the suppression motion. The presence of the stun gun was not anticipated, so it was not named in the search warrant. It still could properly be seized, since it was in plain view during the search pursuant to the warrant, and it had an incriminating nature that was immediately apparent, as it could have been used to force Hailey to comply with appellant’s sexual demands. (See People v. Gallegos (2002) 96 Cal.App.4th 612, 623.)
Appellant also unsuccessfully argued below that the stun gun was irrelevant, or should be excluded pursuant to Evidence Code section 352. We find no error in the trial court’s rulings. As the trial court recognized, the stun gun was relevant, as it might have been used by appellant to prevent resistance by Hailey. On the other hand, according to appellant’s girlfriend’s testimony, the stun gun was simply something that appellant routinely kept in his vehicle. Considering all of the circumstances, the jurors could appropriately assess the weight to be given to the presence of the stun gun, and the trial court did not abuse its discretion when it refused to exclude it.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., EGERTON, J.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.