P. v. Alarcia

P. v. Alarcia

Filed 10/22/08 P. v. Alarcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. ROBERT CARLOS ALARCIA, Defendant and Appellant.

G039164 (Super. Ct. No. 06HF0374) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.

Donald R. Wager 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, David Delgado-Rucci and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted defendant, Robert Alarcia, of one count of attempting to commit a lewd act on a child. (Pen. Code,  664, 288, subd. (a).)^[1] Defendant was initially charged with a second count of possessing child pornography in violation of section 311.11, subdivision (a), but the prosecution dismissed this charge after the trial began. Defendant argues on appeal there was insufficient evidence to sustain a conviction, the court denied defendant his right to a public trial, and the prosecution improperly used defendants silence against him. He also claims the court erred when it ruled the defense could not inform the jury why the prosecutor dismissed the second count, admitted enlarged photographs of a 13-year-old girl into evidence, denied defendants motion to dismiss because of outrageous government conduct, and when it failed to instruct the jury that a nongovernmental agency violated the law by attempting to solicit defendant to violate section 288. Defendant further contends that cumulative errors denied defendant of his right to a fair trial. We affirm.

I

FACTS

We present the facts in the light most favorable to the judgment in accord with established rules of appellate review. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142-143.)

The Laguna Beach Police Department set up a sting operation to take place on February 18, 2006, because there had been some Internet-based crimes against children and they wanted to apprehend internet predators. The police department had been operating a small scale predator operation on its own when they heard about Perverted Justice, a nonprofit group that works with law enforcement agencies by posing as children on the Internet to help catch sexual predators. The police contacted Perverted Justice because they wanted to see if the group could help them achieve their goal of apprehending Internet predators. On February 18, 2006, a Perverted Justice operative, Laura McDade, was using the screen name cyndgrrrl1992 in an Internet chat room as a decoy profile in connection with the sting operation. Defendant, then 29 years old, sent an instant message to cyndgrrrl1992 using the screen name westwoodkush. McDades decoy profile portrayed a 13-year-old girl and rotated five pictures of a 13 year old on the profile throughout the two-hour and 45-minute chat. Defendant contacted cyndgrrrl1992.

After receiving defendants first instant message indicating that he was a 29-year-old male in Los Angeles, McDade responded that she was a 13-year-old female in Dana Point. Defendant told McDade that one of the pictures on her profile of a group of girls in a hot tub, made him want to play with himself. McDade told defendant he was really cute and defendant responded that he was twice her age. McDade asked defendant how old he was, and he told her he was 21. Defendant asked McDade about her level of sexual experience, what type of underwear she had on, if she had ever used marijuana, and asked if she wanted to try some marijuana. McDade complained that she was bored because she was home alone on a Saturday night and defendant told her she was 13 and too young to party.

When McDade returned from a 20-minute break defendant told her that he was playing with himself while she was gone. McDade told defendant that she was going to watch a movie and defendant asked her if she was going to watch a pornographic video or a strip show. Defendant told McDade that she could borrow some of his pornography. Defendant asked for her address and indicated that he wanted to bring a pornographic video over and watch it with her. Defendant later clarified that he wanted to cuddle and doggie. McDade asked if defendant meant like all the way? and defendant said sure. McDade said that she did not want to get pregnant, and defendant offered to bring condoms. McDade gave defendant an address in Laguna Beach, and they arranged to meet at her apartment at 12:30 a.m. There was no actual 13 year old at the location.

Defendant arrived at the apartment building and walked along the hallway towards the apartment where he had been told the fictitious victim lived at the same time as another suspect. Officers apprehended the first suspect while defendant watched before defendant was arrested in the hallway. The officers had set up video cameras to film suspects as they approached the door of the apartment where they believed the fictitious victim lived. Defendants image was not captured on the video, so he did not get as far as the apartment door.

Detective Thaddeus Falencki of the Laguna Beach Police Department searched defendant after his arrest and found a pornographic DVD on his person. Another officer found condoms in defendants car.

Falencki read defendant his rights pursuant to Mirandav.Arizona (1966) 384 U.S. 436 (Miranda) before interviewing him. Defendant and Falencki had the following exchange:

FALENCKI: Okay, take a seat right down there. Alright before I go any further and ah, talk with you here. [unintelligible] I read your Miranda rights here. Are you willing to ah, waive your rights here and talk with me about whats goin on in your arrest tonight?

ALARCIA: Um, Im, will it get me outta here sooner?

FALENCKI: Whats that?

ALARCIA: Will it get me outta here sooner?

FALENCKI: Well, will it get [you] outta here sooner? Ah, where do you wanna go?

ALARCIA: I just wanna go back home.

FALENCKI: Okay. Well, theres gonna be a certain amount of procedure we have to go through. Theres the booking process and everything else. Ah, your statement will be included inside the report. So, [its] up to you. Now, we dont factor in whether you make a statement or not. You know. [Its] still part of the process.

ALARCIA: Okay.

FALENCKI: So ah, I said the best thing to do, I mean, again, I tell everybody the same thing. Cause Im a detective. Im not just [unintelligible] call me into do this here. You see. So your statement, it would definitely be to your best interest to make, you see. Because we know why youre here. Okay, We also have, information from the computeryou see that were also gonna use. But see again, this is the time now, to go on tape and actually say what was goin on and where you stand with things. You see. So . . . 

ALARCIA: I mean, [its] pretty obvious where things are standing.

So . . . 

FALENCKI: Okay. Well . . . 

ALARCIA: And I . . . 

FALENCKI: . . . it might be obvious . . . 

ALARCIA: I dont think.

FALENCKI: It might be obvious . . . 

ALARCIA: I dont think that . . . 

FALENCKI: . . . to you.

ALARCIA: . . . making that statement is gonna help.

FALENCKI: Well, it might be obvious to you.

ALARCIA: [unintelligible] making

FALENCKI: It might be obvious to me. Okay, the thing is though like I said [unintelligible] got . . . 

ALARCIA: I mean, cause you have everything on digital format.

And . . . 

FALENCKI: Digital format. Whats on digital format?

ALARCIA: Everything thats ah, transcribed.

FALENCKI: Well, you know more about computer stuff than I do. Cause I dont have a computer background. Okay. So, if, if you know about how this works and stuff like that, then Im telling you right now, you know more about it than I do. Cause I dont know how they save the stuff and what digital format means and everything else.

ALARCIA: [unintelligible].

FALENCKI: You see? So, but go on.

ALARCIA: No, I mean I have nothing else to say. I mean . . . 

FALENCKI: Okay.

ALARCIA: Okay. (Ellipses in original denoting pauses.)

Officers seized several computers and a zip drive from defendants apartment based on a search warrant. A computer expert found information related to the screen names westwoodkush and cyndgrrrl1992 on defendants computer.

Defendant testified at his trial. He said he thought he was exchanging messages with and arranging to meet an adult.

The jury convicted defendant and he was sentenced to 180 days in jail and five years of supervised probation. The court also ordered defendant to register as a sex offender.

II

DISCUSSION

Sufficiency of the Evidence

Defendant argues the evidence was insufficient to find he attempted a lewd act with a child. He contends his actions were merely preparatory and did not constitute an attempt because he did not try to enter the apartment. While he concedes he made a date, he claims he stood up the decoy when he did not go all the way to the door of the apartment.

A defendant can be convicted of an attempted lewd act with a child if he attempts, with sexual intent, to commit a lewd and lascivious act on a child under age 14 but fails to complete the crime or is prevented or intercepted before he can complete it. ( 288, 664.) A conviction for an attempt to violate section 288 can be upheld even if there was no actual child involved. (Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185.)

In reviewing a claim of insufficient evidence, the court looks at the record in the light most favorable to the conviction and determines whether there is substantial evidence to support the conviction. (People v. Young (2005) 34 Cal.4th 1149, 1180.) Substantial evidence is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) This court does not reweigh the evidence, but determines whether the evidence and inferences that could be drawn from it supported the fact finders conclusions. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

An attempt to commit a crime requires a specific intent to commit it and a direct but ineffectual act towards its commission. (People v. Imler (1992) 9 Cal.App.4th 1178, 1181.) The act must go beyond preparation or planning and show that a defendant is making a direct movement towards committing the crime. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).) The act does not need to be the last proximate act or an ultimate step towards commission of the crime, or even satisfy an element of the crime. (Ibid.) Whether an act is merely preparatory or . . . sufficiently close to the consummation of the crime depends on the facts and circumstances of a particular case. (Id. at p. 14.)

When a defendants intent is clear, only slight acts towards commission of the crime are necessary to constitute an attempt. (Decker, supra, 41 Cal.4th at p. 8.) With clear intent, an act that would be otherwise insufficient may be enough to constitute an attempt. (People v. Berger (1955) 131 Cal.App.2d 127, 130.)

A defendant can be convicted of an attempted violation of sections 664 and 288, subdivision (a) by speaking to the victim over the telephone. (People v. Imler, supra, 9 Cal.App.4th at p. 1179.) In that case, the defendant called numerous residences listed in the telephone book and threatened or made lewd comments to the person who answered the phone. (Id. at p. 1180.) A 12-year-old boy answered the phone at one of the residences, and the defendant told him to remove his clothes and touch himself. (Ibid.) The defendant argued that the evidence was insufficient to sustain a conviction for the crime of attempt. (Id. at p. 1179.) The court rejected that argument, stating that the defendants acts of calling the victim and telling him to commit lewd acts went beyond mere preparation. (Id. at p. 1181.)

Only a slight act toward the commission of the crime is necessary to constitute an attempt. (Decker, supra, 41 Cal.4th at p. 8.) After obtaining the address of a person he thought was 13 years old, defendant drove from Los Angeles to Laguna Beach with pornography and condoms, as he promised he would. He then entered the apartment building where he thought a 13-year-old girl lived and began walking towards the apartment where he had been told she lived. We hold the evidence in the record is sufficient for a reasonable jury to conclude defendant attempted to commit a lewd act on a child.

Right to Public Trial

Defendant argues the court denied him his Sixth Amendment right to a public trial by excluding what he refers to sometimes as four character witnesses and other times as appellants friends from the courtroom. Defendant argues the exclusion of his witnesses was structural error and requires automatic reversal.

The record before us is not clear on the issue. The exact order of the court was: The witnesses are asked to leave the courtroom. The order was made after one of defendants witnesses disclosed during his testimony that he and others, including defense witnesses, discussed questions asked by the prosecutor in the hallway

When that witnesss testimony concluded, the court ordered a recess and said, If counsel could join me. The court reporters record says (A recess was taken). It is not clear whether or not there was a discussion off the record during the recess. When the record resumes, the court ordered all witnesses to leave the courtroom.

In his reply brief, defendant cites to the testimony of four witnesses after making the statement: In appellants case, however, the exclusion was not limited to just one witness but to all four of his character witnesses who were also his long time friends and acquaintances over appellants objections and motion for mistrial. The cited testimony reflects that four witnesses were, indeed, longtime friends and acquaintances, but it does not show they were the persons who were excused by the court.

After the court made its order, defense counsel said: Might I put something on the record later about the objection to that order? The court responded, All right. But we find nothing else regarding the issue, and the parties do not cite us to anything else, until the next day when defense counsel said the court excused John Tung, Sam Taniratna and Richard Paul from the courtroom and moved for a mistrial. They are three of the four persons defendant argues were his friends and acquaintances.

It could be that discussions took place during the recess mentioned above and that motions were made regarding this issue. But we have not located any such discussions or motions in the record. Thus, we are left with a record that discloses the court was informed someone was in the hallway informing potential witnesses about the prosecutors questions, and that, at the time the mistrial motion was made and denied, the court expressed concern about witnesses discussing their testimony with other witnesses who had not yet testified.

The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a public trial. Defendants are at the very least entitled to have their friends and family present. (In re Oliver (1948) 333 U.S. 257, 272.) However, that right is not absolute and may be overridden by interests essential to the fair administration of justice. [Citations.] (U. S. v. Sherlock (9th Cir. 1989) 962 F.2d 1349, 1356.) 

The exclusion of witnesses from the courtroom is a matter within the trial courts discretion. (See People v. Valdez (1986) 177 Cal.App.3d 680, 687.) Evidence Code section 777 provides in pertinent part that the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses. (Italics added.)

The court expressed concern witnesses were possibly tainting the testimony of other witnesses. The courts order included all witnesses. Under the circumstances in this record, we conclude the court did not err when it ordered witnesses to leave the courtroom during the trial. 

Doyle Error

Defendant argues the prosecution committed Doyle error by using his post-Miranda silence to impeach his credibility in cross-examination and closing argument. (Doyle v. Ohio (1976) 426 U.S. 610.) Doyle holds that a prosecutor cannot use a defendants post-Miranda silence to impeach an exculpatory story told for the first time at trial. (Id. at p. 611.) In order to establish a due process violation under Doyle, the defendant must show the prosecutor inappropriately used his post-Miranda silence to impeach him and the court permitted it. (People v. Champion (2005) 134 Cal.App.4th 1440, 1448.) Permission usually takes the form of overruling a defense objection.

(Id. at p. 1448.)

Doyle does not apply to cross-examination questions that inquire into prior inconsistent statements, even if they were made post-Miranda. (Anderson v. Charles (1980) 447 U.S. 404, 408.) A defendant who speaks after receiving Miranda warnings does so voluntarily and cannot be said to have been induced to remain silent. (Ibid.) During cross-examination, the prosecutor asked defendant the following questions:

Q. Now, after you were arrested, you were interviewed by Detective Falencki, correct?

A. Yes.

Q. That was in the downstairs apartment, correct?

A. Correct.

Q. And you were handcuffed?

A. Yes.

Q. You were given every opportunity to make a statement as to why you were there, correct?

A. Yes.

During that time, you never told Detective Falencki that you thought she was an adult? The court overruled defendants objection.

The prosecutor made the following statements during her closing argument: All of this evidence that is that he intended on committing a lewd act on a 13-year- old child. He knows it. Thats why when he was asked by the detective do you want to go on tape, tell us where youre standing. Where youre standing with things, he said I mean its pretty obvious where things are standing. You have everything on digital format. Everything thats transcribed. He didnt ever say, hey man, I thought she was 18. Everything in the chat showed me that she was 18. I had absolutely no idea this girl was 13 years old. She gave me no indication of that. [] Wouldnt that have been the appropriate time to make that statement youre under arrest? Youre sitting in front of a detective whos telling you this is your opportunity to tell us why youre here. Im giving you this opportunity. He says its obvious why Im here. [] . . . [] Wouldnt you expect that [he say something to the detective] if he was innocent of the charges? Wouldnt you expect him to make a statement that he thought she was an adult at the time. That thats the reason he went down there, that the content of the chats appeared to him that she was an adult? Wouldnt you expect that if he was innocent?

The prosecutors inquiry into defendants silence during cross-examination referred to defendants silence before he invoked his Fifth Amendment right. When a defendant voluntarily speaks after being advised of his Miranda rights, his refusal to answer questions can be used for impeachment purposes until he invokes his right to remain silent. (People v. Hurd (1998) 62 Cal.App.4th 1084, 1093.) When a defendant freely chooses to waive his right to remain silent, the prosecutor can point out inconsistencies between his testimony and prior statements or silence. (People v. Poon (1981) 125 Cal.App.3d 55, 84-85, disapproved on other grounds by People v. Lopez (1998) 19 Cal.4th 282, 292.)

The prosecutor did not improperly use defendants silence against him during her closing argument. Instead, she used defendants voluntary statements to show the falsity of his defense that he thought he was meeting an adult. The prosecutors suggestion contrasted defendants statement at the time of arrest that it was obvious why he was there with the statements an innocent person would have made and with the statements he made in his testimony. We find no error with the prosecutors cross-examination question or closing argument.

Evidentiary Rulings

Defendant contends the court erroneously admitted two enlarged photographs of a 13 year old that were among the photographs rotated on the decoy profile because there was no evidence that defendant actually saw the photographs. Defendant objected to the admission of these photographs on the ground that they were more prejudicial than probative. (Evid. Code 352.) Defendant also argues the court did not engage in the weighing process required by Evidence Code section 352. Defendant further argues the court erred in preventing the defense from telling the jury the child pornography charges were dropped because the child pornography images found on defendants zip drive had been placed on it by defendants uncle and not defendant.

We review a trial courts decision to admit or exclude evidence for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) We will uphold the trial courts exercise of discretion unless defendant shows the court acted in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.] (Id. at pp. 9-10.) When a defendant objects to evidence on the grounds of undue prejudice, the record must show that the court actually weighed prejudice against probative value. (People v. Crittenden (1994) 9 Cal.4th 83, 135.) An explicit statement is unnecessary as long as the record shows that the court engaged in the weighing process. (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) The reviewing court can infer that the trial court was aware of and fulfilled its duty to weigh prejudice against probative value from arguments of counsel or comments by the trial court that touch on those issues. (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800.)

Regarding the original photographs, the record shows the court weighed the possibility of the undue prejudice against the probative value. Defendant objected to the admission of two of the photographs and argued they were prejudicial because he did not see them. The prosecutor argued the photos were relevant and probative because McDade testified that she rotated them on the decoy profile during the chat, and that whether defendant actually looked at them went to the weight of the evidence. She argued they were not unduly prejudicial. The court stated: The court is going to admit exhibit 4 as it stands. The evidence is that these were the pictures on the profile, whether the defendant saw them all is it seems to me something that the parties can argue. And its up to the jury to determine whether he, in fact, saw them all or only saw three of them. It seems to me that these were the pictures on the profile.

Defendant then objected to the admission of the enlarged versions of the same photographs: Both sides have tried to make clear that the images as they appear on the computer screen are much smaller, inch and a half, inch. And you can tell from the conversations its hard for the defendant to even see. These pictures are dramatically blown up. I think just in size alone theyre prejudicial, especially when I think the swimming pool picture, the picture of the young female not smiling and the picture at least those two pictures have been shown in a smaller form and are redundant and prejudicial, and the court should not admit those for that reason. The court overruled defendants objection: I understand counsels concern in that regard. It was taken up earlier. The court will admit the exhibit. I do think that its been made clear how large the photographs are. Im sure counsel will reiterate it in argument. But these are easy for the jury to see and they have seen them. And therefore, the court will admit exhibit 4.

The court listened to both counsels arguments on the issues of prejudice and probative value. The court explained its reasoning for admitting the enlarged photographs that they were photographs posted on the profile and the enlargements were relevant because they were easier for the jury to see. The record is silent as to whether or not the images could have been enlarged on defendants computer screen.

The court did not act in an arbitrary, capricious, or patently absurd manner and we cannot find an abuse of discretion.

Defendant next contends the court erred when it refused to allow defendant to tell the jury why the prosecution dismissed the child pornography count. As defendants argument goes, the evidence would have added credibility to his sisters testimony that she had been molested by their uncle when she was a child by showing that the charge was dismissed because the child pornography on the zip drive belonged to the uncle. Defendant further argues that the information would have supported defendants testimony that the idea of sex with a 13 year old was abhorrent to him due to his sisters experiences.

We disagree. The prosecutions reason for dismissing the count was irrelevant and thus inadmissible as it did not have the tendency to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210, 350.) Even if the information may have possibly been relevant, the court has broad discretion to determine the relevancy of evidence, People v. Heard (2003) 31 Cal.4th 946 at page 973, and has further discretion to decide whether to admit or exclude evidence. (People v. Rodriguez, supra, 20 Cal.4th at p. 9.) Also, the court instructed the jury not to consider count two for any purpose. Under these circumstances, when the relevancy of evidence is so attenuated, we cannot find an abuse of discretion.

Alleged Outrageous Government Conduct

Defendant argues the court erred when it denied his motion to dismiss and his motion for a new trial based on outrageous government conduct. The United States Supreme Court has acknowledged the possibility that there may be some situations where police conduct is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction . . . . (United States v. Russell (1973) 411 U.S. 423, 431-432.) In order to bar a conviction, the government conduct must violate principles of fundamental fairness and be shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment. [Citation.] (Id. at p. 432.)

There are four factors the court considers in determining whether police conduct violates due process principles. (People v. Smith (2003) 31 Cal.4th 1207, 1225-1226.) First, the court examines whether the police manufactured an otherwise unlikely crime or only involved themselves in ongoing criminal activity. (Id. at p. 1226.) Next, the court considers whether the governments conduct was repugnant to a sense of justice. (Ibid.) The third factor is whether the police overcame defendants reluctance to commit the crime by appeals to humanitarian interests, temptation of exorbitant gain, or persistent solicitation in the face of unwillingness. (Ibid.) Finally, the court determines whether the record shows a police desire to obtain a conviction or a motive to prevent crime. (Ibid.)

Even though defendants arrest resulted from a sting operation, defendant made the initial contact. By responding to defendants instant message, McDade was merely involving herself in potential criminal activity that had already begun, not manufacturing a crime. Regarding the second factor, there was nothing repugnant to justice about the set up of the sting operation or McDades participation in it. It was defendant who initiated the sexual discussion, even after acknowledging that he was twice the fictional victims age.

Regarding the third factor, defendant did not demonstrate any initial reluctance so there was no reluctance for McDade to overcome. When McDade invited defendant over after he offered to let her borrow his pornography, he immediately agreed to bring it to her. To the extent defendants statement that he was twice the fictional victims age can be construed as reluctance, McDade did not appeal to defendants humanitarian interests or tempt him with exorbitant gain. At best, defendants comments about the fictional victims age show slight hesitation, not unwillingness, and McDades conduct did not constitute persistent solicitation in the face of unwillingness. (People v. Smith, supra, 31 Cal.4th at p. 1226.)

Finally, examination of the record shows the police acted out of a desire to protect society. The Laguna Beach Police Department set up the sting operation because there had been some Internet-based crimes against children and they wanted to apprehend internet predators. The police contacted Perverted Justice because they wanted to see if Perverted Justice could help them achieve their goal of apprehending Internet predators. One of the goals of Perverted Justice is to make the Internet safer for children by posing as children and catching adults who would try to use the Internet to meet children for sexual encounters. It is clear that the police set up the sting operation and requested Perverted Justice to participate in it out of a desire to protect society.

Jury Instructions

Defendant contends the court also erred when it refused to instruct the jury that McDade violated the law by attempting to solicit an attempted violation of section 288, subdivision (a). He claims McDades actions violated section 653f, subdivision (c). Section 653f, subdivision (c) makes it a crime to solicit a violation of section 288 with the specific intent that the violation of section 288 be committed.

Defendant requested the court to add a paragraph to the credibility of witness instruction that says you may find that if Ms. McDade was not an agent of the police, then you may consider whether she solicited the defendant to commit an act to attempt to commit an act of child molestation. [] . . . [] [Defense Attorney]: If she did if you find that she did, then she committed a crime, a felony. The court refused to give the instruction because it did not find substantial evidence that McDade committed a crime and because the instruction would confuse the jury.

We review the courts refusal to give a requested jury instruction for abuse of discretion. (See People v. Smith (1968) 265 Cal.App.2d 775, 779.) The court did not abuse its discretion when it refused defendants request to instruct the jury that McDade violated the law.

Defendant cites no authority to support his position that McDades participation in a sting operation was an illegal attempt to solicit an attempt to commit a crime, and the law is clear that ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law . . . . (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 569.) McDades participation in a sting operation at the request of the police was lawful, and the court did not abuse its discretion.

Alleged Cumulative Errors

Defendant argues that the cumulative effect of the errors at trial constituted a miscarriage of justice and denied him a fair trial. The cumulative effect of multiple errors may sometimes constitute a miscarriage of justice, even if the errors are independently harmless. (See People v. Holt (1984) 37 Cal.3d 436, 459.) Cumulative errors warrant a reversal if the court, upon reviewing each allegation of error and their cumulative effect, determines that it is reasonably probable that a result more favorable to defendant would have been reached without the errors. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) Since we have found no errors, there can be no cumulative errors. (People v. Coryell (2003) 110 Cal.App.4th 1299, 1309.)

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

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^[1] All further statutory references are to the Penal Code unless otherwise stated.