Opinion
B227550
12-06-2011
THE PEOPLE, Plaintiff and Respondent, v. PAUL ENRIQUEZ DIZON, Defendant and Appellant.
Law Offices of Sarah A. Stockwell and Sarah A. Stockwell for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. YA075764)
APPEAL from a judgment of the Superior Court of Los Angeles County. Eric C. Taylor, Judge. Affirmed.
Law Offices of Sarah A. Stockwell and Sarah A. Stockwell for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, appellant Paul Enriquez Dizon was convicted of arranging a meeting with a minor for the purpose of engaging in lewd and lascivious behavior (Pen. Code, § 288.4, subd. (b)). The trial court suspended imposition of sentence and placed defendant on probation for five years, on the condition that he serve 180 days in county jail and register as a convicted sex offender. The trial court imposed various fines and court fees and awarded appellant one day presentence custody credit.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends that (1) there was insufficient evidence that he was motivated by an unnatural or abnormal sexual interest in children, or that he reasonably believed the detective's decoy was a minor; (2) the trial court failed to instruct the jury on a reasonable belief defense; (3) the prosecutor engaged in misconduct; and (4) there was ineffective assistance of counsel.
We affirm.
FACTS
Prosecution Evidence
Detective Dennis Brady of the Torrance Police Department worked in the Sex Crimes Division and was affiliated with the Los Angeles Police Department's Internet Crimes Against Children Unit. He had been a police officer for 16 years and a detective for about five years at the time of this case. His job included posing online as a 14-year-old girl on different Internet social networking sites investigating child exploitation crimes in the City of Torrance.
Yahoo is an online social networking service where individuals have real time conversations in chat rooms. The names of the chat rooms indicate subject matter or geographical locations. Some rooms are adult chat rooms and the conversations there are sexual in nature. Users can choose to create a personal profile and upload pictures but Yahoo does not verify user information. Access to the adult chat rooms required users to state that they were over the age of 18. Typically, Detective Brady signed into a Yahoo adult chat room labeled "California Room" to investigate local crime, and posed as a 14-year-old girl with the screen name "taylorgurl2013." The fictitious person created by Detective Brady is hereafter referred to as "Taylor" and is understood to refer to Detective Brady unless otherwise noted. Taylor's profile did not include any pictures.
On July 28, 2009, at approximately 12:50 p.m., Taylor received an instant message (IM) from appellant while logged into the California Room. Most conversations typically start with the participants sharing their age, sex, and location. Appellant stated that he was 39 years old and from Pomona. Taylor responded that she was in Torrance and was 14. Appellant remarked, "ok. really young[,]" to which Taylor responded, "not reely [sic]." Detective Brady had performed similar Internet investigations for three years and typically after disclosing that Taylor was age 14, the person he was conversing with would "quit talking" to him. Appellant exchanged a number of IM's with Taylor discussing hobbies, and shopping at the local mall and then stated that he liked "adult stuff" such as "sex[.]"
Appellant's subsequent IM's asked Taylor if she liked or had experienced sex, and if so, how many times and whether she had tried all sex positions. Taylor responded that she liked sex and had done just "regular stuff on the four prior occasions she had sex. Appellant asked, "did u [sic] try doggy style?" When Taylor responded that she had, appellant replied that such position "feels deep" and asked if she had used a condom. Taylor said she used a condom because she did not want to get pregnant. Appellant's next IM suggested that Taylor should begin the first few minutes of sex without a condom to "feel how good it is" and "then put on a condom to finish[.]" When Taylor complimented appellant for being smart he said it "feels so awesome without a condom," his method was "pretty safe," and asked if Taylor wanted to "try it."
Appellant and Taylor then exchanged IM's discussing her physical appearance. Taylor said that she was 5 feet 4 inches tall, 100 pounds, and had blonde hair and blue eyes. Appellant asked if Taylor was "curvy" and "36-30-36?" When Taylor responded that she was "34c[,]" appellant replied, "nice c cups[.]" Appellant then asked Taylor if she shaved her vaginal area and if she would "take a pic and send it to [him.]" Taylor expressed concern that she might "see it all over the Internet[,]" and appellant asked if she wanted to show it to him in person. Appellant asked Taylor to send a picture without a face "to be safe[.]" When Taylor refused to send any pictures appellant again asked, "show me in person, instead?" Taylor said she would if he promised to be nice. Appellant then told Taylor in graphic detail what he wanted to do to her sexually. He told her he could "lick it[,]" or "just fuck it" if she preferred, and "make [her] quiver all over[.]" Appellant asked if he could "start fucking" her without a condom and that he would "put one on after a few minutes[.]" When Taylor said yes, appellant again asked if Taylor wanted to "meet up and do it" because he was getting excited.
When Taylor told appellant that she would "hav [sic] to be home by 7[,]" appellant asked, "so u [sic] want to meet up and fuck?" After Taylor agreed, appellant asked Taylor where she had had sex before and suggested they could have sex in a motel or in the car. Taylor told him they could have sex at her house because no one else would be there until 7:00 p.m. and gave him the cross streets near her house. Taylor added that she did not have any money and she did not drive. Taylor declined appellant's request for "phone sex" and refused to send appellant photos. Appellant sent Taylor a photo of himself (face omitted) holding his penis while lying naked. When Taylor saw the photo she told appellant that her father would "freek" [sic] if he knew she was looking at it, and that her father did not allow her to have photos on the computer. Appellant sent some more IM's telling Taylor in graphic detail what he wanted her to do to him during sex.
At 1:57 p.m. Taylor told appellant she was leaving to go to the mall. Appellant asked for her cell phone number so he could text her. Appellant began texting Taylor at 1:58 p.m. and continued to text throughout the evening. At 2:00 p.m., appellant texted Taylor, "So are you up to fucking me?" At 2:02 p.m., he texted, "When do you want it? I want to feel you so bad." At 2:04 p.m., he texted, "I want my hard cock inside of you now," and added, "I'm serious. Can you sneak out tonight around 9:00 or 10:00?" Taylor told appellant that she would tell her mother that she was visiting a friend's house. Appellant texted Taylor to be "ready to get fucked good," and "I will fuck you without a condom to start, okay?" Appellant asked for her address and Taylor gave him the address of a Taco Bell restaurant because she did not want him coming to her house. Appellant tried calling Taylor's cell phone because he wanted to hear her voice. Taylor texted appellant that she could not receive any calls but would call him later from "a phone booth at 7-Eleven." Appellant told Taylor he was horny and asked, "So is it still wet?" and "Does it get really wet?"
Torrance Police Officer Karen Paolozzi played the voice role of 14-year-old Taylor in recorded telephone conversations with appellant. In the first conversation starting around 3:00 p.m. on July 28, 2009, Taylor told appellant that she was calling from the "7-11 [sic] on Crenshaw" because her parents did not allow her to get more minutes on her cell phone. Taylor said that her friend Lauren would "cover" for her if appellant wanted to meet for sex that day. Appellant asked if Taylor was "good with that?" and explained that he needed to ask because Taylor was "pretty young." When Taylor said she was not "that young," appellant replied, "I know, but still you're under 18." Appellant told Taylor he had an appointment at 8:00 p.m. and would meet her at 9:00 p.m. Taylor informed appellant that she could not call him from her house because her parents "would totally find out" and she was "scared" if that happened. Appellant asked Taylor if she was "absolutely one hundred percent sure" she was "ready for this[.]" Taylor replied that she did not want to get pregnant because it would ruin high school for her. Appellant promised that would not happen because he would use a condom. Appellant stated, "So, let's be honest here right, you're uh, you're under 18, I'm over 18, it's [sic] this is a tough deal." Taylor responded that it was "not that big of a deal" to her, and appellant replied, "It is, legally it is." Appellant explained to Taylor, "I'm breaking the law here basically. You know that right?" and ". . . like I said I'm breaking the law, but you know, if you're good with it, then I'm good with it." Appellant reassured Taylor that he would not "leave anything inside" of her and that they would only do it for a few minutes before he put on a condom. Appellant told Taylor to wear a mini skirt so they could have sex in his car. The telephone conversation ended after appellant made arrangements to meet Taylor at the Taco Bell near her house. Appellant told Taylor he would be driving a black car.
At 3:21 p.m. appellant resumed texting Taylor and asked her to send her picture using either her phone or her friend's phone. Taylor (Detective Brady) texted that she could not take photos on her phone and her friend's dad would "freak" if she sent appellant photos using that phone. Appellant texted Taylor that she sounded "so cute on the phone," and he wanted her to call him again. He texted, "tell me you want to fuck me, too" and "let me come inside of you." At 8:34 p.m. appellant texted Taylor that he was at home because his "bimmer [BMW vehicle] had a problem," and asked if they could meet up the next day instead. At approximately 9:20 p.m., appellant arranged to meet Taylor at Taco Bell at 12:00 noon the following day.
The next day at 7:16 a.m., appellant texted Taylor and asked if they could meet at 10:30 a.m. instead of noon. Appellant asked if they were going to have sex in her house or in the car. Taylor texted that they could come back to the house and asked appellant to promise to wear a condom. Appellant texted that he wanted to start without a condom but he would be "very careful" and that Taylor should "make sure to shave it so it's smooth." Taylor texted that she had to go because her mother was calling her for breakfast, and she told him she would call from the 7-Eleven.
At 9:50 a.m. in another recorded telephone conversation, Taylor (Officer Paolozzi) told appellant that she would meet him at Taco Bell and they could have sex at her house because her mother would be gone. Appellant said, "I told you yesterday, you know, you're, you're kinda young. So, I'm, I'm, that's why I'm very scared." After Taylor said, "I'm not that young[,]" appellant replied, "Yeah, but still, you're young." Appellant informed Taylor that he needed to "stop and get condoms" and that she should take off her panties "so it would be easier to have sex in his vehicle."
Detective Brady, Officer Paolozzi, and numerous undercover police officers were waiting at the Taco Bell. Appellant parked his black BMW in the parking lot and texted Taylor that he was there and asked her to come outside so they could go to the store. Police officers approached the car and arrested appellant. The cell phone appellant used to send text messages to Taylor was recovered from his car. Appellant was advised of his constitutional rights and agreed to talk. He said he was 41 years old, and had four daughters, aged 10, 14, 17, and 20. He drove from Chino Hills to Taco Bell in Torrance to have sex with a 14-year-old girl he had met on the Internet the previous day. He said that he was a "soccer coach" for his daughters and other girls ranging in age from 10 through 14.
Defense Evidence
Appellant testified that he was married with four daughters. He worked as a computer network analyst and was familiar with security systems and firewall detections, and knew his computer Internet protocol (IP) address was being logged by Yahoo and could be tracked. He stated that he was not looking for sex when he was in the Yahoo Internet adult chat room with Taylor, and was merely looking for "role play and sexual fantasy." As proof it was a fantasy and not real, he told Taylor that he was 39, when in reality he was 41, he lived in Chino Hills, but told Taylor he lived in Pomona, and he told Taylor he had never been with a blonde, but his wife was blonde and he had been with other blondes. He said that in the past he had met an adult woman through an Internet sex chat room and they remained friends.
Appellant testified that he repeatedly tried to find out who Taylor was and asked for a picture to validate her age. He never believed Taylor was 14 years old and would not have continued a sexual discussion with her if she were 14. He admitted that he sounded serious during the recorded conversations with Taylor on the way to Taco Bell but maintained that it was all part of a fantasy. His remarks to Taylor about breaking the law were all part of a "role-play fantasy" and he admitted saying a lot of other "crazy things." He never intended to have sex with anyone that day, and would have left even if an adult woman had approached his car from Taco Bell because he was under a time constraint.
Rebuttal Evidence
Detective Brady testified that he had conducted thousands of prior similar Internet investigations and the conversations followed a similar pattern. Individuals interested in fantasy role playing will quickly ask or comment about fantasies they are interested in discussing shortly after establishing the age, sex, and location of the other person in the conversation. Appellant never said that he was merely fantasizing during his online chats or texts with Detective Brady, or during his phone conversations with Officer Paolozzi, while both officers were posing as 14-year-old Taylor. After his arrest, appellant did not mention fantasy role playing, but did acknowledge that he knew what he did was a bad idea, and illegal.
DISCUSSION
I. Sufficiency of the Evidence
Appellant was convicted of arranging to meet a minor for lewd purposes in violation of section 288.4, subdivision (b). The elements of this offense are that a defendant arranged to meet a person he believed to be a minor, that he was motivated by "an unnatural or abnormal sexual interest in children," that he intended to engage in lewd or lascivious behavior, and that he went to the arranged meeting place as planned.
CALCRIM No. 1126 as given to the jury states: "The defendant is charged in Count 1 with going to meet with a minor for a lewd purpose, in violation of Penal Code section 288.4(b). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] (1) The defendant arranged a meeting with a person he believed to be a minor; [¶] (2) When the defendant did so, he was motivated by an unnatural or abnormal sexual interest in children; [¶] (3) At that meeting, the defendant intended to engage in lewd or lascivious behavior; [¶] AND [¶] (4) The defendant went to the arranged meeting place at or about the arranged time. [¶] A minor is a person under the age of 18."
Appellant contends that there was insufficient evidence that he reasonably believed that Detective Brady's online character (Taylor) was a minor, or that he was motivated by an unnatural or abnormal sexual interest in children.
"On November 7, 2006, the voters enacted Proposition 83, The Sexual Predator Punishment and Control Act: Jessica's Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006); hereafter Proposition 83 or Jessica's Law). Proposition 83 was a wide-ranging initiative intended to 'help Californians better protect themselves, their children, and their communities' (id., § 2, subd. (f)) from problems posed by sex offenders by 'strengthen[ing] and improv[ing] the laws that punish and control sexual offenders' (id., § 31)." (In re E.J. (2010) 47 Cal.4th 1258, 1263.)
Proposition 83 added new laws penalizing those who use the Internet to contact or communicate with anyone under 18 years of age for sexually motivated purposes. Specifically, section 288.4, subdivision (a)(1) provides in pertinent part: "Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of . . . engaging in lewd or lascivious behavior, shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment." Section 288.4, subdivision (b) provides: "Every person described in paragraph (1) of subdivision (a) who goes to the arranged meeting place at or about the arranged time, shall be punished by imprisonment in the state prison for two, three, or four years."
The original Senate Bill referred to section 288.3. In 2007, the section was renumbered as 288.4. (Sen. Bill No. 172 (2007-2008 Reg. Sess.).)
Although the requisite age of the minor is not expressly indicated in section 288.4, CALCRIM No. 1126 instructs that "[a] minor is a person under the age of 18."
B. Standard of Review
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the trier of fact could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, at p. 331.)
C. Sufficiency of the Evidence That Appellant Reasonably Believed Taylor Was a Minor
Appellant contends that the evidence was insufficient to prove that he reasonably believed that Taylor was a minor because specific statements throughout the conversations are open to multiple reasonable interpretations, and support his contention that he was engaged in fantasy role playing. We disagree.
Within moments of appellant initiating the Internet IM chat, Taylor told appellant that she was 14. When appellant remarked, "ok. really young[,]" Taylor responded, "not reely [sic]." Appellant did not ask what Taylor meant by that remark, or indicate at any time during the Internet IM chat that he was interested in fantasy role playing. Approximately two hours after learning that Taylor was 14, appellant confirmed his belief that Taylor was a minor. During the first recorded telephone call, appellant told Taylor, "I need to ask because you're, you know, you're pretty young." After Taylor said she was not "that young[,]" appellant replied "I know, but still you're under 18." Later in the same call, appellant reiterated his belief that Taylor was a minor when he said, "So let's be honest here right, you're uh, you're under 18, I'm over 18, it's this is a tough deal."
Appellant's "tough deal" comment in reference to sex with a minor was not an isolated incident. When Taylor responded that it was "not that big of a deal" to her, appellant replied, "It is, legally it is." Appellant explained to Taylor, "I'm breaking the law here basically. You know that right?" and ". . . like I said I'm breaking the law, but you know, if you're good with it, then I'm good with it." During the second audio-recorded telephone call, appellant told Taylor he was "very scared" because she was "kinda young." Appellant never mentioned during either of the recorded telephone calls that knowingly breaking the law by having sex with a minor was a fantasy he was interested in role playing with Taylor.
Taylor repeatedly indicated she was controlled by her parents. During the Internet IM chat, Taylor told appellant that her "dad" would freak out if he knew that she was looking at a photo of appellant holding his penis while lying nude, and she could not send any photos of herself because her photos were on her father's laptop. Taylor also told appellant that she did not drive. Taylor also texted appellant to say that in order to have sex with him she would tell her mother that she was going to her friend's house. During the first recorded telephone call Taylor told appellant that her parents did not allow her to get more minutes on her cell phone because she talked too much; she could not call appellant from her house because her "parents would totally find out[;]" and that she did not want to get pregnant by appellant because it would "ruin high school" for her. The next day around 7:16 a.m., in response to appellant's text, Taylor texted to appellant that "mom leaves at 10:00" and she had to stop texting because "my mom is calling me for breakfast." Appellant replied that she should call him after her mother left.
Appellant's suggestion that Taylor's presence in an adult chat room implied that she was at least 18 is not supported by the evidence. Access to adult chat rooms simply requires the user state they are over the age of 18. Yahoo does not verify the date of birth information entered. Appellant testified that his work was "all about computers and systems and networks" and that he had received a number of certifications related to security systems in the networking world. Given appellant's acknowledged expertise and knowledge of computer systems in general and Yahoo in particular, he could not have relied on Taylor's mere presence in an adult chat room as proof that she was an adult.
We conclude the jury's finding that appellant reasonably believed that Taylor was a minor was supported by substantial evidence.
D. Sufficiency of the Evidence That Appellant Was Motivated by an Unnatural or Abnormal Sexual Interest in Children
The jury was required to find that appellant's conduct was "motivated by an unnatural or abnormal sexual interest in children" (CALCRIM No. 1126). Appellant argues that element was not supported by substantial evidence, stressing that the evidence points to a "sophisticated woman with a curvy physique" who was "readily familiar with adult activities and adult grooming[,]" and his "conversation" with Taylor evidenced a natural and normal sexual interest in a peer.
The element "motivated by an unnatural or abnormal sexual interest in children" is not defined in section 288.4 or CALCRIM No. 1126. We look to other statutes designed to protect children from sex offenders and the cases that have interpreted them. While interpreting the crime of annoying or molesting a child under the age of 18 in violation of section 647.6, a federal court found: "As construed by the California courts, this 'unnatural or abnormal sexual interest' requirement is not very demanding." (Nicanor-Romero v. Mukasey (9th Cir. 2008) 523 F.3d 922, 1001.) Specifically, the "unnatural or abnormal" element "may be shown by the mere fact that the subject of the interest was underage." (Ibid.)Therefore, "a sexual interest that would be natural and normal if motivated by conduct directed at an 18-year old becomes unnatural or abnormal under § 647.6(a) if directed at someone who is underage." (Ibid.)"[T]here can be no normal sexual interest in any child[.]" (People v. Shaw (2009) 177 Cal.App.4th 92, 103.)
In discussing the term "unnatural or abnormal sexual interest" as used in section 647.6 the court employs an objective test to determine if a normal person would unhesitatingly be irritated or disturbed by the conduct. (People v. Lopez (1998) 19 Cal.4th 282, 290.)
Appellant's contention that Taylor was "a sophisticated woman" who was "readily familiar with adult activities and adult grooming" is not supported by the evidence. Appellant's explanation of "protected" sex involved "doggy style" sex for a few minutes without a condom followed by condom use before ejaculation. He assured Taylor that she would not get pregnant and this method was "pretty safe" and disease free. Taylor's response that this method was "smart" belies appellant's claim that he was dealing with a sophisticated woman. Appellant's attempt to deceive Taylor shows that he was motivated by an unnatural or abnormal desire to have sex with her, and a normal person would objectively and unhesitatingly be irritated and disturbed by a 41-year-old man falsely advising a 14-year-old high school student of sexual practices that could lead to pregnancy and disease.
Appellant initiated all conversations involving "adult activities and adult grooming" and Taylor's generally restrained responses to appellant's pointedly graphic remarks did not support his contention that she was "readily familiar" with such matters. After Taylor told appellant that she was 14 years old, appellant asked if she shaved her vaginal area. When he learned that she did he asked her to "take a pic and send it to [him]." After Taylor refused to send any photos of her shaved vaginal area, appellant asked, "u [sic] wanna [sic] show me in person?" On the morning he arranged to meet Taylor, referring again to her vaginal area, he texted that Taylor should "make sure to shave it so it's smooth." Appellant was motivated by an unnatural or abnormal interest in Taylor's shaved vaginal area and a normal person would objectively and unhesitatingly be irritated and disturbed by a 41-year-old man continually having this conversation with a 14-year-old girl.
Appellant described in graphic detail various sex acts he wanted to do. Referring to Taylor's vaginal area, appellant said he could "lick it" if she preferred or he would just "fuck it." He asked if he could "start fucking" Taylor without a condom for a few minutes followed by sex with a condom. He texted, "I want my hard cock inside of you now." Appellant discussed sexual positions such as "doggy style" and asked if Taylor ever had sex while "being on top?" Appellant sent Taylor a photo of himself holding his penis while lying naked. A normal person would objectively and unhesitatingly be irritated and disturbed by a 41-year-old man sending pornographic material and graphically describing what he wanted to do sexually to a 14-year-old girl.
Detective Brady testified that typically after disclosing that his online decoy character was age 14, the other person would "quit talking" to him, but appellant continued talking to Taylor. Appellant proceeded with plans to meet Taylor while admitting he was aware of the legal consequences of his actions. Appellant's willingness to overlook the legal consequences of his actions shows that he was motivated by an unnatural or abnormal interest in sexual intercourse with a minor, and a normal person would objectively and unhesitatingly be irritated and disturbed by a 41-year-old man confessing that he was "good with" "breaking the law" so that he could have sexual intercourse with a 14-year-old girl.
We conclude the jury's finding that appellant was motivated by an unnatural or abnormal sexual interest in children was supported by substantial evidence.
II. Sua Sponte Jury Instruction on a Reasonable Belief Defense
Appellant contends the trial court had a sua sponte duty to instruct the jury on applicable affirmative defenses and because the jury received sufficient evidence that he reasonably believed Taylor was over the age of 18, the trial court erred by failing to give the jury an instruction like CALCRIM No. 1070.
The pertinent portion of CALCRIM No. 1070 reads as follows: "The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. In order for reasonable and actual belief to excuse the defendant's behavior, there must be evidence tending to show that (he/she) reasonably and actually believed that the other person was age 18 or older. If you have a reasonable doubt about whether the defendant reasonably and actually believed that the other person was age 18 or older, you must find (him/her) not guilty."
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A trial court has a sua sponte duty to instruct on a defense if it appears the defendant is relying on the defense, or if there is substantial evidence to support the defense and the defense is not inconsistent with the defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) Here, appellant's reasonable belief that Taylor was an adult was a defense relied on at trial and the instruction would have been consistent with the defense. But we find no reversible error in the court's failure to give such an instruction.
The jury received several instructions regarding the burden of proof. CALCRIM No. 220 instructed the jury that the prosecutor had to prove beyond a reasonable doubt that the crime was committed. CALCRIM No. 251 instructed that as to the crime of meeting a minor for a lewd purpose, the defendant must have committed a prohibited act with "specific intent." The prosecutor had to prove that appellant arranged to meet a person "he believed to be a minor" (CALCRIM No. 1126). The prosecutor explained to the jury that if the circumstantial evidence in the case led to two or more reasonable conclusions, then the jury must accept the one that points to innocence in accordance with CALCRIM No. 224. Defense counsel argued to the jury that the People had failed to prove appellant knew or believed he was chatting with a person who was 14. The prosecutor argued to the jury that appellant's belief defense was unreasonable given the evidence in this case.
We are satisfied in light of the instructions that the jury did receive, it is not reasonably probable that the jury did not understand that appellant's belief that Taylor was 14 was a necessary element that the prosecution was required to prove, and, if the prosecution failed to prove that belief, they should find appellant not guilty. We conclude that appellant suffered no prejudice and any error in the jury not being instructed with a reasonable belief type instruction such as CALCRIM No. 1070 was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24 [standard of harmless beyond a reasonable doubt employed for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a more favorable result is standard for assessing state law error].)
III. Prosecutorial Misconduct
A. Appellant's Argument
Appellant contends he suffered from two instances of prosecutorial misconduct. He claims the prosecutor intentionally asked compound questions that could not be answered completely with a simple yes or no in order to elicit unintentional admissions from appellant. Appellant also contends that during closing argument the prosecutor told the jury that appellant was a "sexual predator" and a "pedophile" that "went on the Internet to troll for young children who would be willing to have sex with him." Appellant contends these statements constituted unsworn testimony.
B. Relevant Authority
"A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects '"the trial with unfairness as to make the resulting conviction a denial of due process." [Citation.]' [Citation.] The focus of the inquiry is on the effect of the prosecutor's action on the defendant, not on the intent or bad faith of the prosecutor. [Citation.] Conduct that does not render a trial fundamentally unfair is error under state law only when it involves '"'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" [Citation.]' [Citation.]" (People v. Mendoza (2007) 42 Cal.4th 686, 700.)
"A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.] Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.)
1. Cross-Examination
"Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to . . . discredit, the witness." (Davis v. Alaska (1974) 415 U.S. 308, 316.)
During cross-examination of appellant, the following exchanges occurred:
"Q [Ms. Vo, Prosecutor] With that understanding, you continued to have communications with 'TaylorGurl'; isn't that correct?
"A [Appellant] She told me "not really."
"Ms. Vo: Objection. Nonresponsive.
"THE COURT: Nonresponsive. Sustained.
"Q By Ms. Vo: The question was, you continued to have a conversation with the girl who you knew was 14 years old; isn't that correct?
"A I continued to have conversation. I did not fully know who this person was.
"Ms. Vo: Objection; nonresponsive. Move to strike.
"THE COURT: Sustained as to the latter part.
[¶] . . . [¶]
"Q By Ms. Vo: . . . this is a photo of a naked man. . . . Is that something you would normally send to a 14-year-old girl?
"A No.
"Q Did you think it was appropriate in this instance?
"A It was an adult chat room. I don't know who it was.
[¶] . . . [¶]
"Q But the question was is it appropriate to send it to a 14-year-old girl?
"A No, it's not.
"Q And you sent it to her, actually?
"A Yeah. Did I know she was 14?
"Ms. Vo: Objection; move to strike as nonresponsive.
"THE COURT: It's stricken. Just answer questions.
[¶] . . . [¶]
"Q Isn't it true that after you had asked 'TaylorGurl' about whether or not she wanted to have sex with you that you actually asked if it would be okay that you meet her that very day to have sex with her? Isn't that true?
"A Yes. But, again, we are fantasizing here.
"Ms. Vo: Objection; move to strike as being nonresponsive.
"THE COURT: Stricken.
[¶] . . . [¶]
"Q And the text that you sent to her was sexual in nature; correct?
"A If those were the fantasies, yes.
"Q That isn't my question, Mr. Dizon. Move to strike, your honor.
"THE COURT: Stricken."
We conclude that the prosecutor's questions and argument were proper and, in any event, they resulted in no prejudice to appellant in the context of the strong evidence against him. The prosecutor's questions were proper cross-examination given that appellant testified in his defense that he made numerous attempts to obtain more information about Taylor, and he never intended to engage in a lewd act with a minor. The prosecutor's direct questions were intended to prohibit appellant from providing narrative answers that were inconsistent with the prosecution's evidence. On each occasion when appellant attempted to explain his answer it was stricken as nonresponsive. The prosecutor was testing appellant's credibility and had wide latitude in the scope, subject matter and technique of the questioning. (In re Anthony P. (1985) 167 Cal.App.3d 502, 506-507.) The prosecutor's precise questions prevented appellant from dictating the terms of the cross-examination and being neither deceptive nor reprehensible, did not constitute misconduct. (People v. Chatman (2006) 38 Cal.4th 344, 382.)
During closing argument, the prosecutor stated, "The defendant is a sexual predator. He's a pedophile who is a grown man, who went on the Internet to troll for young children who would be willing to have sex with him."
2. Closing Argument
"[T]he prosecutor has a wide-ranging right to discuss the case in closing argument." (People v. Lewis (1990) 50 Cal.3d 262, 283.) The prosecutor may discuss the facts and law as he or she sees fit, advance any theory fairly within the evidence and urge any conclusions deemed proper. (People v Hardy (1969) 271 Cal.App.2d 322, 329-330.) "Counsel have a right to present to the jury their views of the proper deductions or inferences which the facts warrant. Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of opposing counsel." (People v. Willard (1907) 150 Cal. 543, 552.)
It is well established that a prosecutor may not express a personal opinion or belief in the guilt of the accused when there is a substantial danger that the jury will view the comments as based on information other than evidence adduced at trial. (People v. Bain (1971) 5 Cal.3d 839, 848.) Appellant contends that the prosecutor should be held to a higher standard in her use of words because the term "pedophile" refers to a psychological diagnosis, but appellant also concedes that the term is frequently used in public. The prosecutor's comments must be "evaluated in the context in which they were made, to ascertain if there was a substantial risk that the jury would consider the remarks to be based on information extraneous to the evidence presented at trial. [Citation.]" (People v. Mincey (1992) 2 Cal.4th 408, 447-448.)
A sexual predator is one who engages in conduct that is motivated by an unnatural sexual interest in children and directs that conduct towards a child with the intent to be observed. (People v. Phillips (2010) 188 Cal.App.4th 1383, 1394.) The evidence showed that appellant visited chat rooms on the Internet, engaged in a sexual conversation, transmitted pornographic photos (purportedly of himself), and arranged to meet and have sexual intercourse with a 14-year-old girl. The prosecutor's statements were permissible arguments within the wide latitude afforded her in putting forth a reasonable view of the evidence and were neither deceptive nor reprehensible. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 179.)
Finally, no harm could have resulted. Prior to opening statements and also before closing argument and the commencement of deliberations, the trial court told the jury that what the attorneys said in closing arguments was not evidence (CALCRIM No. 222). We presume the jury followed this instruction, which was sufficient to dispel any prejudice created by the prosecutor's argument. (People v. Waidla (2000) 22 Cal.4th 690, 725 ["The presumption is that limiting instructions are followed by the jury"]; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions"].)
We cannot conclude that the prosecutor's argument was an impermissible comment upon the evidence. Whether the inferences the prosecutor suggested were reasonable was for the jury to decide. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 179.)
C. Forfeiture
Respondent argues that these contentions were waived because prosecutorial misconduct is subject to a strict rule of forfeiture and appellant failed to object to the prosecutor's questions and failed to object during closing argument.
'"As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]'" (People v. Hill (1998) 17 Cal.4th 800, 820.) The record shows that defense counsel did not object to the complained-of questions and argument on the basis of prosecutorial misconduct, nor did he request an admonition based on this ground. None of the exceptions to these requirements apply in this case, and the issue is therefore forfeited. In any event, appellant's contentions are without merit.
IV. Ineffective Assistance of Counsel
Appellant contends his trial counsel provided ineffective assistance by failing to object to the prosecutor's compound questions during cross-examination of appellant, and failing to object to the prosecutor's closing argument that characterized appellant as a sexual predator and a pedophile.
To establish ineffective assistance of counsel, a defendant must prove that (1) counsel's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsel's failings, the defendant would have received a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Waidla, supra, 22 Cal.4th at p. 718.)
Because we have concluded that asking appellant compound cross-examination questions was not prosecutorial misconduct (People v. Chatman, supra, 38 Cal.4th at p. 382), therefore it was not objectively unreasonable for trial counsel to fail to object. Also, because CALCRIM No. 222 properly instructed the jury that closing argument was not evidence and the jury would decide if the prosecutor's inferences were reasonable (People v. Letner and Tobin, supra, 50 Cal.4th at p. 179), it was not objectively unreasonable for trial counsel to fail to object to the prosecutor's closing argument.
Given the overwhelming evidence of appellant's guilt in this case, we conclude that there was no reasonable probability that had trial counsel made the objections now asserted, appellant would have obtained a more favorable verdict.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, J. We concur: BOREN, P. J. ASHMANN-GERST, J.