Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06HF0352, David Hoffer, Judge.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant was convicted by jury of an attempted lewd and lascivious act upon a child (Pen. Code, §§ 664, 288, subd. (a)). The court suspended imposition of sentence and placed defendant on five years of formal probation, on condition, inter alia, that he serve 240 days in the county jail. Presentence custody credit of 12 days was granted; eight days of actual custody, and four days of conduct credit. Defendant was also ordered to register as a sex offender for the remainder of his life. Defendant timely filed a notice of appeal.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against defendant, but advised the court no issues were found to argue on defendant’s behalf. Defendant was given 30 days to file written argument in his own behalf. That period has passed, and we have not received any communication from defendant. We have examined the record and have not found an arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) Accordingly, we affirm the judgment.
FACTS
During a sexually explicit conversation in an Internet chat room, defendant offered to touch a 13-year-old girl inappropriately when he met her at her apartment in Laguna Beach. The girl, going by the screen name “Ling_Lee13” (Ling) had assured defendant her parents were gone until the next day, and had promised defendant she would not tell anyone about the proposed encounter. But Ling was a fictional person. An adult volunteer with an organization known as “Perverted Justice” was using the name “Ling-Lee13” in the Internet chat room, pretending to be a 13-year-old girl, “to see if there was anyone interested in . . . soliciting sex from” her. Perverted Justice was working with the Laguna Beach Police Department in setting up a sting operation, and the Internet chat came about as part of that operation.
Defendant drove one hour to the apartment where the fictional 13-year-old was supposedly waiting for him. He was met at the apartment door by an adult woman who claimed to be Ling’s mother. Defendant asked the decoy mother how old Ling was, and was told she was “young.” Defendant said “there must be some misunderstanding,” and tried to leave, but he was tackled by several police officers and placed under arrest.
Defendant testified on his own behalf at trial. He stated he believed Ling was actually an older woman who was role playing with him, merely pretending to be a young girl. Other facts will be described as necessary in the discussion section which follows.
DISCUSSION
Pursuant to Anders v. California (1967) 386 U.S. 738, counsel suggested we consider several issues in conducting our independent review of the record. As we now explain, counsel correctly concluded the potential issues are not arguable.
Counsel first suggests we consider whether the police, working with Perverted Justice, entrapped defendant by its conduct of the sting operation. “In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. [Citation.] “‘[S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect — for example, a decoy program — is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.’” (People v. Watson (2000) 22 Cal.4th 220, 223.) “Merely providing people in general an opportunity to commit a crime is not an improper enticement or otherwise entrapment. ‘[T]he rule is clear that “ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime.”’” (Ibid.)
The conversation in the Internet chat room, by which defendant’s illicit meeting was arranged, presented an opportunity for defendant to commit a crime, but it did not entice him to do so. The Perverted Justice volunteer signed into a chat room with the screen name “Ling-Lee13” and waited to be contacted. She was contacted by defendant who used the screen name “Magichands7777.” As the chat got underway, Ling indicated she was a 13-year-old female residing in Laguna Beach. Defendant told her he was 33 years old. Defendant steered the conversation toward sexual content by asking Ling whether she had breasts yet. Defendant asked whether Ling was home alone, and asked her if she wanted “someone to come over.” The conversation thereafter became more explicit. Suffice it to say that throughout the conversation, defendant was the one initiating the idea of going to Ling’s house for lewd purposes. There was no entrapment here.
Counsel also asks us to consider whether defendant could be guilty of an attempt to commit the crime where, as here, the targeted victim of the crime does not exist. It has long been established that the law imposes punishment “when guilty intent is coupled with action that would result in a crime but for the intervention of some fact or circumstance unknown to the defendant.” (People v. Camodeca (1959) 52 Cal.2d 142, 147.) Counsel’s proposed issue is not arguable.
Counsel also suggests we consider an evidentiary issue arising out of a recorded telephone conversation. In the course of the internet chat, a separate Perverted Justice volunteer spoke with defendant on the telephone, pretending to be Ling. These calls were recorded and played for the jury. Counsel cites Penal Code section 632, which prohibits the recording of telephone calls without consent of the other party, and points out that subdivision (d) of that section prohibits the use of any recording obtained in violation of the section in any judicial proceeding. We are asked to consider whether the court erred by admitting the recording of defendant’s conversation as evidence in this trial. The point is not arguable for at least two reasons. First, defendant did not object to the playing of the recording. It is fundamental that a “verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .” (Evid. Code, § 353, subd. (a).) Second, Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) “was intended to permit exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution . . . .” (In re Lance W. (1985) 37 Cal.3d 873, 890, italics added.) The exclusionary rule in Penal Code section 632 is not required by the United States Constitution. (Cf. People v. Ratkin (1989) 212 Cal.App.3d 1165, 1169 [applying Proposition 8 to Penal Code section 631, subdivision (c), the analogous exclusionary rule for wiretap evidence].) Thus, the proposed evidentiary error is not arguable.
Counsel also suggested we review whether the court erred by disallowing a proposed line of cross-examination of the witness who had pretended to be Ling in the recorded phone conversations. Defendant wanted to examine the witness about the amounts of money Perverted Justice had been paid by the television program known as “Dateline” for the right to televise the stings set up by Perverted Justice. The court sustained an Evidence Code section 352 objection, stating: “[T]here’s virtually no probative value. It’s minimal at best. Very little probative value. It’s hard to see how this would affect this very low-level person at Perverted Justice, and I think that it is very prejudicial because it suggests that the whole organization, all their operations could be — could be corrupt.” “Rulings under Evidence Code section 352 are reviewed under an abuse of discretion standard, and a trial court’s determination ‘will not be overturned on appeal in the absence of a clear abuse of that discretion, upon a showing that the trial court’s decision was palpably arbitrary, capricious, or patently absurd, and resulted in injury sufficiently grave as to amount to a miscarriage of justice.’” (People v. Lamb (2006) 136 Cal.App.4th 575, 582.) Here, the court’s ruling was not arbitrary, capricious, or patently absurd. Indeed, it was manifestly reasonable. There was no error.
Finally, counsel suggests we consider whether lifetime registration as a sex offender under Penal Code section 290 constitutes cruel and unusual punishment as applied to defendant’s offense. In In re Debeque (1989) 212 Cal.App.3d 241, the Court of Appeal assumed that registration was a form of punishment, but nevertheless concluded that lifetime registration after conviction of a misdemeanor count of annoying or molesting a child under the age of 18 was not “‘out of all proportion’” to the offense. (Id. at p. 255.) We likewise conclude a similar analysis here arrives at the same result. The point is not arguable.
Our independent review of the record has failed to disclose any other arguable issues.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J. O’LEARY, J.