P. v. Bodnar




Filed 1/3/11 P. v. Bodnar CA4/1



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. THOMAS JOHN BODNAR, Defendant and Appellant.

D056811 (Super. Ct. No. RIF127887)

APPEAL from a judgment of the Superior Court of Riverside County, Douglas E. Weathers, Judge. Affirmed as modified.

I.
INTRODUCTION
Defendant Thomas John Bodnar appeals from his conviction and sentence on one count of attempting to commit a lewd and lascivious act on a child under age 14. Bodnar was caught in a sting operation that was arranged by a volunteer organization called Perverted Justice, in conjunction with the producers of the Dateline television show. Bodnar was led to believe that he was going to meet a 13-year-old boy, after chatting online and on the telephone with Perverted Justice volunteers who posed as the boy.
Bodnar challenges his conviction on the grounds that there is insufficient evidence to support a finding that he believed he was going to meet a child who was under 14 years of age, that the trial court erred in refusing his request for a jury instruction on the defense of entrapment, and that the court abused its discretion in admitting certain evidence related to sexual activity that Bodnar engaged in with a young boy more than 20 years prior to the current offense. Bodnar also challenges his sentence to the extent that the court ordered that he serve a five-year period of parole, rather a three-year period. Specifically, Bodnar contends that his conviction for an attempted enumerated offense does not constitute a violation of that particular enumerated offense, so that the five-year period that applies to commission of the offense should not apply to him.
We conclude that there is substantial evidence to support the jury's verdict, including its determination that Bodnar believed that the child he was going to meet was under 14 years of age, and that the court did not abuse its discretion in admitting in the prior bad acts evidence. We further conclude that there was insufficient evidence of entrapment to warrant a jury instruction pertaining to that defense, and that the trial court thus did not err in declining to instruct the jury on entrapment. We therefore affirm Bodnar's conviction for attempting to commit a lewd and lascivious act on a child under the age of 14.
With respect to the parole period, the People concede that the trial court erred in ordering that Bodnar serve a five-year parole period, rather than a three-year period. We accept the concession and direct the trial court to modify the abstract of judgment to change the parole period from five years to three years.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The current offense
Bodnar was arrested as part of a sting operation that was arranged by an organization called Perverted Justice and that has been publicized on the Dateline television show. Perverted Justice is a private organization of volunteers who pose as children on the internet in order to attract the attention of sexual predators. Riverside County Sheriff's Department investigator Richard Sheldon began working with Perverted Justice volunteers in February 2005. Sheldon had been contacted by Dateline producers about an undercover operation that they were planning to conduct in Riverside. The Riverside County Sheriff's Department agreed to work with Dateline and Perverted Justice on the sting operation.
Perverted Justice volunteers set up profiles on the internet in which they posed as 12- or 13-year-old boys and girls who lived in Mira Loma. A home in the Mira Loma area was rented for use in the sting operation. On January 6, 7, and 8, sheriff's deputies were in a recreational vehicle parked outside the rented home, waiting to arrest suspects who went to the sting house, were confronted by the Dateline host, and then left
the house.
With respect to Bodnar's case, Perverted Justice volunteer Gregory Brainer created a profile of a fictional 13-year-old boy named "Luke" in a chat room called "Guys for Older Men." Brainer used the e-mail name "BaNGinDraGon909," and indicated that "Luke" was in the eighth grade and lived in the 909 area code. Brainer entered the chat room on December 25, 2005, and waited for individuals to solicit him as "Luke." Brainer did not initiate contact with anyone in the chat room.
Using the e-mail name "CasperIN909," Bodnar initiated contact with "Luke" by typing, "hey, wats up. im on ontario that close lol." "Luke" responded, "kewl" and "bored." The following exchange then occurred:
"BaNGinDraGon 909 [5:09 P.M]: how old ru[;]
"CasperIN909 [5:10 P.M.]: 31[;][^[1]]
"CasperIN909 [5:10 P.M.]: so wat type of guys you like[;]
"BaNGinDraGon 909 [5:10 P.M]: <------ 13[;]
"BaNGinDraGon 909 [5:10 P.M.]: i just want some1 to like me for bf[;]
"CasperIN909 [5:10 P.M.]: oh cool me too lol[;]
"CasperIN909 [5:10 P.M.]: so you have any pix[;]
"BaNGinDraGon 909 [5:11 P.M.]: yea uâ€