Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF128500 Douglas E. Weathers, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck, and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
A jury found Scott Allen Smith, defendant and appellant (hereafter defendant), guilty of an attempt to commit a lewd and lascivious act on a child under the age of 14, in violation of Penal Code section 288, subdivision (a) (count 1), and of an attempt to commit oral copulation with a person under the age of 14, in violation of Penal Code section 288a, subdivision (c)(1) (count 2). The jury could not reach a verdict on count 3, a charge that defendant possessed methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). The trial court declared a mistrial and dismissed that count. The trial court sentenced defendant to serve one year six months in state prison on both count 1 and count 2, but in accordance with Penal Code section 654, stayed execution of the sentence imposed on count 2.
All further statutory references are to the Penal Code unless indicated otherwise.
This case stems from a so-called sting operation jointly conducted by the television show Dateline as part of its “To Catch a Predator” program, and Perverted Justice, a private organization whose goal is to identify sexual predators on the Internet in order to keep them away from children. Defendant, who is 39 years old, made contact in an Internet chat room with a Perverted Justice volunteer posing as Dana, a 13-year-old girl. After chatting with Dana and also talking with her on the phone, defendant drove from his home in San Diego to Dana’s “home” in Mira Loma where based on their Internet exchange defendant believed he would engage in various sex acts with Dana. Riverside County Sheriff’s deputies arrested defendant at the house in Mira Loma.
In this appeal, defendant contends that the evidence, which we recount in detail below, supported a jury instruction on the defense of entrapment, and by refusing to give that instruction, the trial court committed reversible error; the trial court improperly admitted evidence regarding the number of people caught in the Mira Loma sting operation; during closing argument, the prosecutor committed prejudicial misconduct; alternatively, because his attorney did not object to the prosecutor’s purported misconduct, defendant contends he was denied the effective assistance of counsel; the jury instruction on reasonable doubt, CALCRIM No. 220, is incorrect; CALCRIM No. 226 asks the jury to consider evidence not presented at trial and therefore is erroneous; the cumulative effect of the errors is prejudicial; and the evidence is insufficient to support the jury’s implied findings that defendant engaged in an act that was a direct step toward the commission of the charged crimes.
We conclude defendant’s claims are meritless. Therefore, we will affirm.
FACTS
Colleen Tharme, an adult volunteer with Perverted Justice, created an email profile on Yahoo.com that Tharme dubbed dark_dana_666 (hereafter Dana). According to the profile, Dana lived in Riverside, shortened in the profile to “Rside.” To avoid various Yahoo age restrictions, Tharme put “666” in the place that asked for Dana’s age. Dana’s profile stated she was “single and looking.” Tharme also created a MySpace page for Dana that included a photograph of a younger looking girl. In order to avoid MySpace age restrictions, Tharme listed Dana’s age as 16, and stated she was from Corona and Mira Loma.
Posing as Dana, Tharme entered a Yahoo regional chat room on October 7, 2006. There were 20 or more people in the chat room at the time. According to Tharme, the chat room was limited only by the fact that it was for people in California, but it was not an adult or x-rated chat room. Defendant, using the profile name “uncommansense2, ” contacted Dana. When Dana asked for his age, sex, and location, defendant answered, “San Diego, male, old, I guess. 34.” Dana told defendant that she was 13, female and from “Rside.” Defendant asked Dana if she liked “older dudes.” Dana wrote back, “I am mature, so I prefer older guys. You should try talking to a 14 yo [year old] guy. They’re so stupid lol.” Defendant had apparently posted a photograph of himself, and it popped up in the chat box during his exchange with Dana. In response to his photograph, Dana wrote that defendant looked like the actor Orlando Bloom.
At trial Tharme and the prosecutor read for the jury the chat log of the online typed exchange between “Dana” and defendant. Tharme read Dana’s entries and the prosecutor read defendant’s.
Defendant asked Dana whether she had ever met anyone online before. Dana wrote, “Yeah. I met this one guy. We dated for like two weeks.” Defendant asked how old the guy was and Dana answered, “He was like 22 or 23. I don’t know.” Defendant wrote, “Only ten years older, unlike me. I am 20 years older.” Dana said she did not care about age. Defendant answered, “Only the police care. Hehe.” Dana asked, “Why you say that? Are you a cop?” Defendant answered, “Cuz they do. No, I’m not a cop. They do. Are you a cop?” Dana said, “Lol. I’m 13. Duh. How can I be a cop?” Defendant answered, “Pretending to be a 13-year-old. They do that now.” When Dana expressed skepticism, defendant said, “They do.” Dana answered, “I’m not a cop silly. They do not.” Defendant wrote, “Yes, they do. So let’s find out if you are.” Dana answered, “That’s so mean, God. I’m not lol.”
Defendant then asked Dana if she had ever had sex with a guy. Dana said she had, one time, with a 19-year-old boy and it hurt. Defendant wrote, “Well, the next time you do, just let them go down on you and only use their finger. It won’t be so bad.” Defendant asked if Dana thought she could handle herself with an older man and Dana wrote, “Yeah, I guess as long as you are nice lol. Not mean like my last bf [boyfriend].” Defendant wrote that he was “[n]ot a mean guy, ” and then asked if Dana lived with her parents. Dana said that she lived with her mom. Defendant asked, “How old is she?” When Dana answered that her mom was about 35, defendant wrote, “Maybe I can have a mom and daughter thing lol.” Defendant then added that he was just kidding.
Next, defendant asked if Dana’s mother worked and left Dana “home alone often.” Dana wrote, “Lol pretty much all the time. She works nights.” Defendant responded, “Really now?” Defendant then asked, “When does [your mother] start and get off work?” Dana answered that she leaves “like 9 when I’m supposed to be in bed lol, but I never am” and comes home “like around 6? I don’t know. I’m asleep.”
Defendant asked Dana to give him access to her MySpace page. Defendant apparently viewed Dana’s MySpace posting and left a comment about her picture, to which Dana responded, “Aww, that’s sweet.” When defendant answered that he had already changed it [presumably referring to his comment] because it “could have been nasty, ” Dana wrote, “Haha, that’s ok.” Dana said that she had to go eat, and asked if defendant would be around later. After writing, “For you, always, ” defendant sent Dana his phone number. Dana responded, “Omg you want me to call you?? Cool.” Defendant answered, “That’s up to you, dear. Yes, I would.” Dana said she would call later when her mom was “doing dishes. She can’t hear lol.”
Tharme explained that Perverted Justice provided the photographs of Dana that were posted online at Yahoo and MySpace.
Dana logged back on to the chat room later that evening and reconnected with defendant. She told him that her mom was doing dishes and wrote, “You want me 2 call you?” Defendant answered, “Sure, if you don’t get in trouble.” When Dana said she was going to call him, but that she was nervous, defendant responded, “Sweet. It’s up to you. I don’t bite unless you ask me to.”
Tharme explained that Perverted Justice uses a “verifier” to place the phone call. According to Tharme, verifiers are women, all over the age of 18, whose voices sound young. Tharme contacted Tracy Grygiel, a Perverted Justice phone verifier, who would call the phone number defendant had given Dana to confirm or verify that “the phone number is what it is....”
Grygiel testified that she telephoned the number given to her by Tharme. When defendant answered the phone, he initially said he was “Dano, ” then he said he was “Riverside Police, ” and then he said he was just kidding, he was “Scott.” Grygiel gave the jury an example of the young sounding voice she uses while talking on the phone as a verifier, and then recounted her brief conversation with defendant in which he “bragged about having another 15-year-old girl who really liked him.” Defendant said he wanted to meet Dana right away, but Grygiel testified that she is not authorized to set up meetings so she did not do that. At the end of the conversation, Grygiel emailed her notes to Investigator Gary Bowen at Riverside County Sherriff’s Department.
Grygiel said that defendant “actually identified himself [by] his full name, ” Scott Allen, and also said “what he did for a living, ” Scott Allen Moving Company.
Grygiel then contacted Tharme to give her a very basic summary of her phone conversation with defendant. Tharme, as Dana, then went back to the chat room where she and defendant resumed their online conversation. Defendant told Dana that she had a “very cute, very sexy voice.” After Dana confirmed that she was not too nervous talking with defendant on the phone because he made her feel “comfortable lol” defendant asked, “Will you be nervous if I come to see you?” Defendant also asked if Dana liked to watch movies and when Dana confirmed that she loves movies, defendant asked, “So do you have some we can watch if I come over?” Next defendant asked, “What do you wanna do with me if I come see you? I’m all yours.” When Dana said she didn’t know, defendant said, “Don’t worry, I [sic] be wearing all my clothes when I arrive there lol.” Dana answered, “Haha, you better. It’s cold.” Defendant responded, “I’m sure you could keep me warm if you had to, hehe.”
Dana said defendant would have to leave by three or four in the morning before her mom comes home. Defendant answered, “She won’t even know I was there.” After confirming that defendant should leave at 7:30, presumably meaning from San Diego to drive to Dana’s house in Mira Loma, defendant added, “I don’t want you to think I’m coming for sex or anything like that, ok?” Dana answered, “Then why you coming here? Duh. Lol.” Defendant wrote, “You are funny. If that’s the reason why, then it’s up to you, but it will be something you’ll remember for a lifetime.” Defendant added, “I’m not too sure about the act of sex with you, seeing you haven’t been with a guy for a long time.” Defendant then told Dana that he had three piercings on his penis, all but one of which he could take out.
Dana said she had to find something to wear to which defendant responded, “Nothing would be nice. It’s a whole ordeal?” Then he said he was just kidding and added, “The whole foreplay thing is the most fun. Getting you out of your clothes is the best.” Dana asked whether he meant making out and said that she loved that. Defendant added, “The fun time before sex, like licking you from top to bottom [a]nd from front to back, kissing you all over, rubbing every inch of your body mmmm, hehe.” When Dana said, “Oh, my, I better take a shower lol, ” defendant answered, “Yes, you better, ” and added, “I like to spend a lot of time down there!” Defendant then described what he intended to do with Dana, including licking her, sticking his finger and tongue in her anus, and having her sit on his face.
Dana told defendant her mother was calling and that she had to go. Defendant asked for her address, and Dana gave defendant a house number on River Boat Drive in Mira Loma. Defendant checked Mapquest.com and then told Dana that the drive was 101 miles from San Diego. Defendant added, “I hope you are worth it, lol, jk [just kidding].” When Dana said she was going to shower with her mango shower gel so that she would smell really good for defendant, he said, “Good. Clean it really good, even your little behind. Remember, my tongue will be there.” Dana asked defendant to bring Smirnoff Ice, apple or raspberry flavor. Defendant told Dana that he was going to give her a full body massage which would make her sleepy. Dana said she did not want to sleep, and defendant asked, “Not even with me? Lol.”
Defendant asked Dana additional questions such as whether she liked “to kiss with your tongue, ” whether kissing made her “hot, ” “horny, ” and “wet down there, ” whether she had ever had an orgasm, whether she had pubic hair, and whether it was the same color as the hair on her head. Defendant also encouraged Dana to wash herself well when she showered because “[m]y tongue is gonna be everywhere... [m]ostly your little crack.” Shortly before Dana and defendant ended their chat Dana wrote, “Oh, I forgot to tell you, lol, my mom put a cabinet in front of the door because our lock is broke, so you need to come in the back. It’s easy.”
Riverside County Sheriff’s Investigator Gary Bowen testified, in pertinent part, that he was involved in the sting operation conducted by Dateline and Perverted Justice in Mira Loma Initially he reviewed the chat logs of the exchange between defendant as “uncommansens2” and dark_dana_666 in order to verify that the content was of a sexual nature, and therefore evidence that a crime was contemplated. Bowen and other Riverside Sheriff’s deputies set up a command post in a travel trailer in the driveway of a house near the River Boat Drive sting house. Other deputies were in unmarked cars parked at various locations in the neighborhood surrounding the sting house.
Defendant arrived at the sting house driving a moving truck, a “box-type delivery truck.” Defendant walked down the walk to the back of the house as Dana had directed him to do. Defendant entered the house carrying a six pack of grape-flavored Smirnoff beverages. The takedown team from the trailer and Investigator Bowen waited for defendant to come out of the house and then arrested him.
Investigator Bowen questioned defendant after first advising him of his rights under Miranda v. Arizona (1966) 384 U.S. 436 and obtaining defendant’s waiver of those rights. Defendant admitted that he spoke with a female on the Internet whom he believed was 13 years old, and that defendant is 39 years old, although he lied and told the girl that he was 34. Defendant also admitted that he was at the house to engage in oral copulation with the girl and also to penetrate her buttocks with his fingers.
We will not recount the facts pertinent to count 3, the methamphetamine possession charge on which the jury was unable to reach a verdict.
DISCUSSION
We address defendant’s various contentions according to the order they are set out in his opening brief. Therefore, we begin our discussion with defendant’s claim that the trial court should have instructed the jury on the defense of entrapment.
1.
FAILURE TO INSTRUCT ON ENTRAPMENT DEFENSE
Defendant asked the trial court to instruct the jury according to CALCRIM No. 3408 on the defense of entrapment. The trial court denied that request, first, because the trial court found that Perverted Justice is not an agent of law enforcement and the defense only applies when law enforcement or its agent engages in the conduct that induces the defendant to act, and, next, because the evidence did not warrant giving the instruction in any event. Defendant challenges both aspects of the trial court’s ruling in this appeal.
If the trial court had given CALCRIM No. 3408 in this case, the jury would have been instructed, in pertinent part, that, “Entrapment is a defense. The defendant has the burden of proving this defense by a preponderance of the evidence.... To meet this burden, the defendant must prove that it is more likely than not that [he] was entrapped. [¶] A person is entrapped if a law enforcement officer [or (his/her) agent] engaged in conduct that would cause a normally law-abiding person to commit the crime. [¶] Some examples of entrapment might include conduct like badgering, persuasion by flattery or coaxing, repeated and insistent requests, or an appeal to friendship or sympathy.... [¶] If an officer [or (his/her) agent] simply gave the defendant an opportunity to commit the crime or merely tried to gain the defendant’s confidence through reasonable and restrained steps, that conduct is not entrapment. [¶] In evaluating this defense, you should focus primarily on the conduct of the officer [or the officer’s agent].... [¶] When deciding whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation. Do not consider the defendant’s particular intentions or character, or whether the defendant had a predisposition to commit the crime. [¶] [As used here, an agent is a person who does something at the request, suggestion, or direction of an officer. It is not necessary that the agent know the officer’s true identity, or that the agent realize that he or she is actually acting as an agent.]”
A. Standard of Review
A trial court is “required to instruct the... jury on the defense of entrapment if, but only if, substantial evidence supported the defense. [Citations.]” (People v. Watson (2000) 22 Cal.4th 220, 222-223.) We review the record to determine whether defendant presented substantial evidence to support the claimed defense and thus to require the trial court to give the jury the entrapment jury instruction. (People v. McIntire (1979) 23 Cal.3d 742, 746; People v. Salas (2006) 37 Cal.4th 967, 983.)
B. Analysis
“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.’ [Citation.] (People v. Watson, supra, 22 Cal.4th at p. 223, quoting People v. Barraza (1979) 23 Cal.3d. 675, 689-690 (Barraza).)
“The Barraza court described two guiding principles. ‘First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established.’ [Citation.]” (People v. Watson, supra, 22 Cal.4th at p. 223.) “‘Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement.’ [Citation.]” (Id. at p. 223.)
As previously noted, the trial court in this case denied defendant’s request to instruct the jury on entrapment first because there was no evidence to show that Perverted Justice acted as an agent of law enforcement and, next, because even if Perverted Justice had acted as an agent of law enforcement there was no evidence that Tharme, the Perverted Justice volunteer, caused defendant to commit an act he would not otherwise have committed. We agree with the trial court.
The pertinent evidence is undisputed. On the question of whether Perverted Justice or Tharme acted as an agent of law enforcement, the evidence shows that law enforcement officers participated in the sting operation by arresting defendant, and others who fell prey to the sting operation, when they arrived at the house in Mira Loma. Evidence of that involvement is not sufficient to show that Tharme acted as an agent of law enforcement. In order to show that Perverted Justice, or its volunteer Tharme, was an agent of law enforcement, the evidence had to show they acted at the request, suggestion, or direction of law enforcement. (See CALCRIM No. 3408 (2009-2010 ed.).) As the trial court phrased it, law enforcement’s involvement was limited to arresting people “under the color of authority, ” which was the only function Perverted Justice could not perform. The presence of law enforcement officers at the Mira Loma house to perform that function is not evidence that Perverted Justice or Tharme acted as agents of law enforcement in conducting the sting operation, defendant’s contrary claim notwithstanding.
The only other evidence defendant cites to support his claim that Tharme acted as an agent of law enforcement is her purported testimony that she used “Rside” as the location in her online profile at the direction of law enforcement. Tharme testified the information came from law enforcement and from Perverted Justice Administration. That limited involvement of law enforcement is insufficient to show Tharme acted as a law enforcement agent rather than as a private citizen volunteer with Perverted Justice, an organization comprised of private citizens. That evidence shows only that law enforcement was involved in the sting operation. It does not demonstrate that law enforcement directed the operation, or that it requested or suggested the operation occur.
Because defendant did not present evidence to show that the sting operation at issue in this case was conducted either by law enforcement or by Perverted Justice as an agent of law enforcement, defendant has not demonstrated that an instruction on the defense of entrapment was warranted. Consequently, we must conclude that the trial court properly denied defendant’s request to instruct on that defense.
2.
ADMISSIBILITY OF EVIDENCE THAT 54 PEOPLE WERE ARRESTED IN STING OPERATION
During questioning of Investigator Bowen of the Riverside County Sheriff’s Department, the prosecutor asked him for various details about the sting operation, including how many deputies and investigators were involved and the period of time over which the sting operation at the house in Mira Loma occurred. Bowen believed six investigators and deputies were involved and that the operation lasted two days. When the prosecutor asked, “And over the course of those few days, how many people showed up at that particular house, ” defense counsel made a relevance objection. The trial court overruled that objection, and Investigator Bowen answered, “I believe the number was about 54.” The prosecutor then asked, “Approximately how many arrests were made?” Investigator Bowen answered, “54.”
Defendant contends the trial court abused its discretion in overruling his relevance objection and that the erroneously admitted evidence was unduly prejudicial under Evidence Code section 352. We disagree, for reasons we now explain.
A. Standard of Review
Under Evidence Code section 350 only relevant evidence is admissible. “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The trial court has broad discretion to determine what evidence is relevant, but it lacks discretion to admit irrelevant evidence. (People v. Heard (2003) 31 Cal.4th 946, 973.)
Evidence Code section 350 states, “No evidence is admissible except relevant evidence.”
B. Analysis
“It is the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection at the trial on the ground sought to be urged on appeal....” (People v. Welch (1972) 8 Cal.3d 106, 114-115.) Defendant did not assert an objection in the trial court under Evidence Code section 352 and instead only objected on the basis of relevance when the prosecutor asked how many people showed up at the Mira Loma house during the two-day sting operation. The Attorney General also contends that defendant has not preserved the issue for review on appeal because he did not object when the prosecutor asked how many people were arrested at the house; he only objected to the prosecutor’s first question asking how many people showed up.
We are inclined to agree with defendant that he preserved the relevance issue for review on appeal by objecting to the first question because it would have been futile to raise the same objection after the trial court had just overruled it. However, we will not resolve that issue or defendant’s claim that the evidence was not relevant and therefore improperly admitted at trial. Even if we were to agree with defendant, which we do solely for the sake of discussion, the erroneous admission of evidence requires reversal of a conviction only if that error was prejudicial in that it resulted in a miscarriage of justice. (Evid. Code, § 353.) In this context, a miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818 (Watson).)
Defendant contends the error was prejudicial because the evidence of his guilt was not overwhelming. We do not share defendant’s view of the evidence. Defendant acknowledges that he admitted to Investigator Bowen that he drove from San Diego to the house in Mira Loma to engage in oral copulation with 13-year-old Dana and to “[p]enetrate her buttocks with his fingers.” Defendant argues that other evidence regarding his ambivalence about having sexual “contact” with Dana indicates that his “intent may not have been so clear and that his conduct may not have gone beyond mere preparation.”
The so-called “other evidence” defendant relies on to support his claim concerns whether he intended to have sexual intercourse with Dana. Evidence that defendant did not intend to engage in sexual intercourse does not undermine or render inconclusive the otherwise overwhelming evidence that defendant drove from San Diego to Mira Loma with the expectation and thus the corresponding intent that once there he would engage in lewd and lascivious conduct with Dana by digitally penetrating her anus with his finger and also by engaging in oral copulation. In view of that overwhelming evidence, we can only conclude that if the trial court erred in admitting evidence that 54 people were arrested in the sting operation, that evidence was not prejudicial in this case. Simply stated, it is not reasonably probable the jury would have reached results more favorable to defendant on either charge on which it found defendant guilty if the jurors had not heard the purportedly inadmissible evidence.
Defendant also contends that admission of the other arrest evidence violated his federal constitutional right to due process and therefore the standard of harmless beyond a reasonable doubt is the applicable test of prejudice. We have no reasonable doubt that if the evidence were improperly admitted that it did not affect the jury’s verdicts in this case. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendant has not demonstrated otherwise. Instead, defendant argues that because he demonstrated prejudice under the less stringent Watson standard, that he necessarily has also met the Chapman standard. As discussed above, we have concluded the evidence was not prejudicial under Watson and, therefore, must necessarily reject this boot-strapped argument.
3.
PROSECUTORIAL MISCONDUCT CLAIM
Defendant contends the prosecutor committed misconduct during closing argument by vouching for the veracity of law enforcement officers who testified at trial. In addressing the defense suggestion during closing argument that the methamphetamine recovered from a vial attached to defendant’s keychain had been planted by law enforcement officers, the prosecutor stated, “There’s no evidence [the keys] were planted on [defendant]. There’s no evidence the cops took a little pill vial and shoved meth in it and came in here and jeopardized their entire career, under oath, that they somehow made this story up. That’s absolutely unreasonable. Those were upstanding law enforcement officers that were doing nothing but testifying honestly under oath, as their obligation is. [Italics added.]”
We will not address the issue because defendant did not object in the trial court and ask the trial court to admonish the jurors to disregard the improper argument. (People v. Frye (1998) 18 Cal.4th 894, 969-970 [“to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm”]; People v. Hill (1998) 17 Cal.4th 800, 820 [general rule is that claim of prosecutorial misconduct is not preserved for review on appeal unless the defense makes timely objection and requests an appropriate admonition].)
Moreover, even if we were to assume without actually deciding that the prosecutor’s statement was improper, and were to assume further that an objection was unnecessary because the prosecutor’s statement was so egregious it could not be cured with an appropriate admonition to the jury, reversal of the judgment would only be required if the misconduct were prejudicial. (People v. Bolton (1979) 23 Cal.3d 208, 214 [“in the absence of prejudice to the fairness of a trial, prosecutor misconduct will not trigger reversal”].)
Defendant’s contrary argument notwithstanding, the prosecutor’s statement during closing argument pertained only to count 3, the methamphetamine possession charge. As noted previously, the trial court dismissed that charge after the jury was unable to reach a verdict. Consequently, we need not resolve the prejudice issue because the issue is moot.
For this same reason we must reject defendant’s alternative ineffective assistance of counsel claim. To prevail on that claim defendant must show both deficient performance and resulting prejudice, “i.e., [that] there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) If trial counsel’s performance was deficient because he did not object to the prosecutor’s purportedly improper statement during closing argument, that oversight only affected count 3. Because the trial court dismissed that count, the prejudice issue, and therefore defendant’s ineffective assistance of counsel claim, is also moot.
4.
VALIDITY OF REASONABLE DOUBT INSTRUCTION
Defendant raises various challenges to CALCRIM No. 220, the standard jury instruction on reasonable doubt, which the trial court gave in this case. In particular, defendant contends the instruction precluded jurors from considering the absence of evidence and also reduced the prosecution’s burden of proof from beyond a reasonable doubt to a preponderance of evidence. Defendant’s claims are based on the following sentence in CALCRIM No. 220, which the trial court gave the jury: “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial.”
With respect to his first claim, that the instruction precludes the jury from considering the lack of evidence, defendant argues that the above quoted sentence combined with CALCRIM No. 222, which instructs that evidence includes “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence, ” effectively “limited the jury’s determination of reasonable doubt to the evidence received at trial and precluded it from considering the lack of other evidence proving that [defendant] committed the offenses charged.”
The identical argument has been considered and rejected in numerous cases. (See, e.g., People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510 (Westbrooks).) As the Westbrooks court explained, the sentence to which defendant objects “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial. The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt. Further, the remainder of the instructions clearly conveyed to the jury the notion that the People had the burden of proving [the defendant’s] guilt beyond a reasonable doubt and that the jury was required to determine whether the People had met their burden of proving all of the facts essential to establishing his guilt.” (Id. at p. 1509.)
Defendant acknowledges that other courts, including Westbrooks, have addressed and rejected the claims he raises in this appeal. He raises the issues in order to preserve them for possible further review by the California Supreme Court and federal courts.
Like the defendant in Westbrooks defendant contends here that People v. McCullough (1979) 100 Cal.App.3d 169 supports his claim. “In McCullough, after the jury asked a question regarding one of the elements of the charged offense, the trial court reconvened the jury and invited other questions from the jurors. [Citation.] While the court was discussing the concept of reasonable doubt with the jury, one juror asked, ‘So then the doubt must arise from evidence?’ [Citation.] The trial court responded: ‘Well, I would answer that yes, if you are saying-if your question is-what is reasonable doubt-reasonable doubt is that state of the case which, after a comparison and consideration of all of the evidence – that is the evidence introduced in the trial – after a comparison and consideration of all of the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.’ [Citation.]” (Westbrooks, supra, 151 Cal.App.4th at pp. 1509-1510.) “The McCullough court concluded that the trial court had ‘misled’ the jury by telling it that the ‘“doubt must arise from the evidence, ”’ because reasonable doubt may arise from the lack of evidence in a case. [Citation.]” (Westbrooks, at p. 1510.) “Unlike in McCullough, the trial court in this case did not tell the jury that reasonable doubt must arise from the evidence presented at trial, and, given the court’s other instructions, it would not have been reasonable for the jury to interpret CALCRIM No. 220 as stating that the jury was precluded from considering any perceived lack of evidence in determining [the defendant’s] guilt. [Citation.]” (Ibid., fn. omitted.)
Because his challenge to CALCRIM No. 220 is identical to that raised in Westbrooks, we reject that claim for the reasons set out in that case and quoted above.
5.
VALIDITY OF CALCRIM NO. 226
The trial court instructed the jury according to CALCRIM No. 226 that, “You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have.”
Defendant contends that “instruction is troubling because ‘common sense and experience’ are necessarily subjective concepts, and the use of such language likely encourages jurors to consider matters not in evidence. As a result, there is a genuine danger that this instruction will cause jurors (1) to rely on extra-judicial evidence and/or (2) to employ a standard less than proof beyond a reasonable doubt since ‘common sense’ can be used as a substitute for objective (and substantial) evidence of guilt.”
Defendant acknowledges that the precise argument he raises in this appeal was addressed and rejected in People v. Campos (2007) 156 Cal.App.4th 1228 (Campos), where the court stated, “To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror’s background, experience and reasoning must necessarily provide the backdrop for the juror’s decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses’ credibility should be evaluated is common sense and experience. Unlike People v. Bickerstaff (1920) 46 Cal.App. 764, 773, and People v. Paulsell (1896) 115 Cal. 6, 7, cited by Campos, CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses’ [sic] credibility.” (Campos, at p. 1240.)
Defendant also relies on People v. Bickserstaff and People v. Paulsell to support his argument.
Here, as in Campos, “other instructions given to jurors make clear that the term ‘common sense and experience’ is not a license to consider matters outside of the evidence. Jurors were instructed that they must decide the facts based on the evidence presented (CALCRIM No. 200), that they were not to conduct research or investigate the crime (CALCRIM No. 201), that their determination of guilt had to be based on evidence received at trial (CALCRIM No. 220), that they were only to consider evidence (sworn testimony and exhibits) presented in the courtroom (CALCRIM No. 222), that they had to decide whether facts have been proved based on ‘all the evidence’ (CALCRIM No. 223), that they should review all the evidence before concluding that the testimony of one witness proves a fact (CALCRIM No. 301) and other instructions emphasizing the exclusive significance of the evidence (CALCRIM No. 302).” (Campos, supra, 156 Cal.App.4th at p. 1240.)
In short, we reject defendant’s claim in this appeal for the reasons quoted above, and articulated in People v. Campos.
6.
SUFFICIENCY OF THE EVIDENCE
As his final claim on appeal, defendant contends the evidence presented at trial is insufficient to prove he attempted to commit any crime and therefore does not support the jury’s verdicts finding him guilty of an attempt to commit a lewd and lascivious act on a child under the age of 14 as alleged in count 1, or an attempt to commit oral copulation with a person under the age of 14, as alleged in count 2. According to defendant, the evidence shows mere preparation on his part. We disagree.
Defendant raises one additional claim-that the cumulative error denied him his due process right to a fair trial-but he does not support the claim with anything other than the cursory and conclusionary statement that “the cumulative effect of the errors noted above was not harmless beyond a reasonable doubt and mandates reversal.” Our conclusions, set out above, that the trial court did not commit any of the errors about which defendant complains in this appeal easily disposes of this issue. But even if defendant had established all the errors he claims occurred in the trial court, we nevertheless would reject this claim because defendant has not supported it with the required discussion. “Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.)
A. Standard of Review
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence -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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
B. Analysis
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.) “‘It is... well settled that there is a material difference between the preparation antecedent to an offense and the actual attempt to commit it. The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. [Citations.]’ [Citations.]” (People v. Memro (1985) 38 Cal.3d 658, 698.)
Defendant’s contrary view notwithstanding, the evidence in this case supports the jury’s implied finding that defendant committed a direct but ineffectual act toward the commission of the crimes charged in count 1 and count 2, and that defendant harbored the specific intent to commit those crimes. In particular, the evidence shows that during his online chat with Dana, a girl defendant believed to be 13 years old, defendant described the various acts he would engage in with Dana including putting his tongue and finger in her vagina and anus. Defendant arranged to meet Dana at the address she gave him and which defendant believed was her home. Dana asked defendant to bring Smirnoff Ice with him. Defendant then drove from San Diego to the address in Mira Loma where he believed 13-year-old Dana lived. Once at the house, defendant went to the back door as Dana had directed. Defendant entered the house carrying the six pack of Smirnoff Ice Dana had requested. The noted evidence, combined with defendant’s statements during his online exchange with Dana, is sufficient to support the jury’s implied finding that defendant attempted to commit both a lewd act and oral copulation as alleged in counts 1 and 2.
Defendant argues that evidence of “some further step toward contact” with Dana was required to constitute sufficient evidence of an attempt to commit either a lewd act or an act of oral copulation. In particular, defendant contends there must be evidence that he attempted to actually touch Dana in order for the evidence to be sufficient to support an attempt to commit either of the crimes in question. Defendant bases his argument in part on People v. La Fontaine (1978) 79 Cal.App.3d 176, in which the court held that an act of solicitation to commit a lewd act does not constitute an attempt. In People v. Ansaldo (1998) 60 Cal.App.4th 1190 [Fourth Dist., Div. Two], we expressly rejected People v. La Fontaine and instead relied on People v. Memro in which the Supreme Court held, “‘“[W]henever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime.” [Citations.]’ [Citation.]” (People v. Ansaldo, supra, at p. 1197, quoting People v. Memro, supra, 38 Cal.3d at p. 698.)
In arguing that there must be evidence to show he attempted to touch the victim, defendant also incorrectly cites Hatch v. Superior Court (2000) 80 Cal.App.4th 170. In Hatch, Division One of this court rejected an argument that such evidence was necessary and noted that People v. La Fontaine, which Hatch also cited to support his claim, was no longer good law. The Hatch court added, “Even assuming La Fontaine’s analysis remains good law, ” there was evidence that Hatch did try to touch his victim. (Hatch, supra, at p. 188.) Hatch does not hold, as defendant contends that an attempt requires evidence the defendant tried to touch the victim.
Defendant relies on several other cases that involve facts different from the facts in this case and which he asserts support his claim that the evidence in this case is insufficient to support a finding that defendant attempted to commit either a lewd and lascivious act or oral copulation. (See, e.g., People v. Crabtree (2009) 169 Cal.App.4th 1293 [defendant had Viagra and condoms in the trunk of his car when he arrived at prearranged location to meet his victim].) The cases defendant relies on do not hold that only evidence of the type and quality involved in those cases is sufficient to support an attempt. Therefore the cases are irrelevant.
Defendant cites a case from Indiana and a case from Florida that he claims support his insufficiency of the evidence argument claim. We will not address either case for the obvious reason that the cases are irrelevant both on the law (which defendant does not discuss) and the facts.
For the reasons stated above, we conclude the evidence presented in this case was sufficient to support the jury’s implied findings that defendant attempted to commit the crimes charged in count 1 and in count 2. Therefore, we reject defendant’s final claim of error in this appeal.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J., Miller J.