P. v. Scarberry

Filed 7/21/08 P. v. Scarberry CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury found appellant Christopher Warren Scarberry guilty of attempted lewd and lascivious conduct on a child under age 14. (See Pen. Code,^[1] 288, subd. (a), 664.) He was granted probation and was required to register as a sex offender. (See  290.) Scarberry appeals, contending that the trial court erred by (1) denying his motion pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda); (2) allowing a police officer to render an opinion on guilt; (3) allowing a witness to testify both as an expert witness and the lead investigator; and (4) admitting statements he made to police. He also asserts (5) a claim of prosecutorial misconduct, and challenges (6) the sufficiency of evidence to support his conviction. We affirm the conviction.

I. FACTS

On July 18, 2006, Santa Rosa Police Detective Brad Conners conducted an Internet sting operation, hoping to prevent the sexual victimization of a child before it occurred. Posing as a Santa Rosa teen named Emily, he posted an advertisement on the erotic services section of Craigslist, offering oral sex in exchange for $100. He received an e-mail reply to this advertisement from wolfnursehunter@yahoo.com, the e-mail address of appellant Christopher (Chris) Warren Scarberry. Scarberry asked Emily if she was of legal age or [if she was] still Jail baitand inquired about her appearance. Emily replied that she was only 14[I] was hoping no one would askand offered to do everything for $200 or to engage in oral sex for $100. Scarberry never responded to this e-mail.

On July 26, 2006, Conners posted another decoy advertisement for erotic services on the same Web site. In this posting, Summer stated that she needed to make some money quick and would do anything. Scarberry replied that day, asking how old she was, how much money she wanted, if she could host, if she had incall,^[2]and if she worked for the police. Summer answered that she was not a cop, that she was 13 but thought she looked older, that she needed to make some money, and that a friend had done so by giving oral sex. She said that she had run away from home. Scarberry and Summer arranged to meet at a parking garage where he would appear in a few minutes driving a white Corsica.

Summer asked whether she would be making some money and what he was going to make her do. Scarberry told her, You can make some money but mostly I want to talk . . . . I [am] not going to make you do anything. Summer replied that she did not want to talk about her problemsshe just wanted to make some money, offering oral sex but not anal sex. Scarberry agreed. Summer asked if he would give her $100 for oral sex or if he wanted something else. Scarberry agreed to a $100 price and said that he was on his way to meet her.^[3]

Detective Conners concluded that Scarberry had agreed to pay a young girl $100 in exchange for oral sex. He learned that 39-year-old Christopher Scarberry was the registered owner of a white Chevrolet Corsica. A group of officers in unmarked vehicles went to the parking garage. Within 15 minutes of the last e-mail exchange, Scarberry appeared there in a white Corsica. He drove around the garage, slowing down near the stairwells and looking in them. He was stopped by police and placed under arrest. A search of his person revealed five folded $20 bills in his front pants pocket and $45 in other cash found in various other locations.

Scarberry was taken to the police station and interviewed. Conners advised him of his Miranda rights. When asked if he knew why he was at the police department, Scarberry said that he read a computer screen on his way to the station indicating that a person was to be picking up a 13-year-old prostitute. He admitted that he had surfed Craigslist and saw an ad from someone who needed to make money. He told Conners that he was under arrest because he had seen and responded to that ad.

Scarberry said that it wasnt going to be what she thought. He wasnt going to ask for sexhe planned to give her the money she needed and let her leave. When Detective Conners reminded him that they had agreed on a $100 oral sex encounter, Scarberry asked, How much time am I looking at? He asked what felonies had led to his arrest. He was advised that he was under arrest for attempted oral copulation of a minor.

Scarberry acknowledged having committed an indiscretion. He told Conners that when he was e-mailing, he wondered how the girls life was so bad that she had to run away from home. He only meant to meet her and find out, give her some money. He only intended to meet the girl and find out why her life was so bad. Conners reminded Scarberry that he had talked to another underage prostitute online. Scarberry insisted that he never would have gone through with it. He asked if he would have to register as a sex offender. He realized that he could no longer work as a nurse after being charged with a felony. He cited a place where prostitutes congregated, asking if Conners had tried to arrest anyone there.

In September 2006, an information charged Scarberry with one count of attempted lewd conduct with a child under age 14 and one count of attempting to induce a minor under age 16 to become a prostitute. (See  266i, subd. (b)(2), 288, subd. (a), 664.) The information advised him that conviction of the lewd conduct charge would require him to register as a sex offender. He pled not guilty.

In October 2006, Scarberry moved to dismiss the pandering charge for lack of evidence to support it. ( 995.) The trial court granted the motion. In November 2006, Scarberry moved to dismiss the attempted lewd conduct charge. That motion was denied. Scarberry also filed motions in limine seeking to exclude inter alia evidence of statements he made during police interrogation as taken in violation of Miranda. The trial court rejected the Miranda claim, ruling that Scarberrys statement to police would be admissible at trial.

Trial was conducted in January 2007. Detective Conners testified as an expert in child sexual assault and exploitation of children online. A transcript of Connerss postarrest interview of Scarberry was admitted into evidence and a recording of that interview was played for the jury. After the prosecution had presented its case-in-chief, Scarberrys motion for acquittal was denied. He put on no defense evidence. During closing argument, the prosecutor displayed a slide characterizing child prostitution as a nationwide problem for which accountable adults should be held accountable. This content of this slide prompted Scarberry to move for a mistrial, which was denied.

On the basis of an amended information, the jury found Scarberry guilty of attempted lewd conduct with a child under age 14. In February 2007, the trial court granted Scarberry a three-year term of probation subject to various conditions including a one-year jail term and registration as a sex offender. (See  290.)

II. MIRANDA

First, Scarberry contends that the trial court erred by denying his motion to suppress evidence of postarrest statements that he asserts were obtained in violation of his Miranda rights. He argues that the Miranda warning given to him of his right to an attorney before questioning was defective because it failed to convey to him his right to counsel during interrogation. He reasons that his statement was taken in violation of his right to due process and his privilege against self-incrimination, making admission of those statements prejudicial. (See Miranda, supra, 384 U.S. 436; see also U.S. Const., 5th & 14th Amends.)

The trial court denied Scarberrys motion to exclude his statements on Miranda grounds. The record establishes that Detective Conners advised Scarberry that he had the right [to] the presence of an attorney before any questioning if he wished. (Italics added.) In a case involving the precise language used by Detective Conners, the California Supreme Court rejected an identical Miranda challenge to the one that Scarberry now raises. That court acknowledged that Miranda and its progeny require that a suspect be apprised of his or her right to counsel during questioning. (People v. Wash (1993) 6 Cal.4th 215, 236, cert. den. sub nom.Wash v. California (1994) 513 U.S. 836; see Fare v. Michael C. (1979) 442 U.S. 707, 717; Miranda, supra, 384 U.S. at p. 479.) Noting that the United States Supreme Court does not require that the Miranda warnings be given in any particular form, Wash characterized the essential inquiry as whether the warnings given reasonably conveyed to the suspect his or her Miranda rights. (People v. Wash, supra, 6 Cal.4th at pp. 236-237; see California v. Prysock (1981) 453 U.S. 355, 359.)

Although the warning given to the defendant in Wash deviated from the standard form because it did not expressly state that the defendant had a right to counsel both before and during questioning, our Supreme Court was not persuaded that the language used was so ambiguous or confusing that it would lead the defendant to believe that counsel would be provided before but not during questioning. (People v. Wash, supra, 6 Cal.4th at p. 236.) That court found the warnings given in that case reasonably conveyed to the defendant a right to have an attorney present during questioning. (Id. at p. 237.) As the warning given in our case was identical to the one upheld in Wash, we reject Scarberrys identical claim that the warning he received from Miranda was constitutionally defective.^[4]

III. OPINION OF GUILT

A. Expert Opinion Testimony

Scarberry also contends that the trial court erred by improperly allowing Detective Conners to use his dual role as a percipient witness and as an expert witness to engage in improper speculation and to render an opinion on the defendants guilt. He asserts that these errors denied him of his federal constitutional rights to due process of law, a fair trial and a jury determination of all elements of the charge. (See U.S. Const., 6th & 14th Amends.)

The subject of expert opinion testimony is limited to matters sufficiently beyond common experience such that an expert opinion would assist the trier of fact. (Evid. Code,  801, subd. (a); People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Expert opinion testimony may embrace the ultimate issue to be decided by the trier of fact, if that opinion evidence is otherwise admissible. (Evid. Code,  805; People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514.) If the subject of the evidence is one of such common knowledge that ordinary people could reach the conclusion as intelligently as an expert, then the evidence is not a proper subject of expert testimony. (See People v. Hernandez (1977) 70 Cal.App.3d 271, 280; see also People v. Valdez, supra, 58 Cal.App.4th at p. 506.)

However, this question is often one of degree. The jury need not be wholly ignorant of the subject matter of an expert opinion in order to justify its admission. If that were the test of admissibility, little expert opinion testimony would ever be admitted. Instead, section 801 of the Evidence Code provides that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. It will be excluded only if it would add nothing at all to the jurys common fund of knowledge. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) A trial courts determination whether proffered evidence relates to a matter sufficiently beyond common experience such that expert evidence would assist the trier of fact is a question that falls within its wide discretion. On appeal, we will reverse only if we find a clear abuse of that discretion. (People v. Valdez, supra, 58 Cal.App.4th at p. 506; see People v. Sanders (1995) 11 Cal.4th 475, 508, cert. den. sub nom.Sanders v. California (1996) 519 U.S. 838; People v. McAlpin, supra, 53 Cal.3d at p. 1299.)

In this appeal, Scarberry argues that evidence was improperly admitted because Detective Connerss opinion testimony relieved the jury of its duty to determine beyond a reasonable doubt the truth of key facts.^[5] He is correct when he asserts that testimony amounting to no more than an expression of the experts general belief about how the jury should decide the case has no value to the trier of fact in reaching a decision. (People v. Garcia, supra, 153 Cal.App.4th at p. 1513; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) For example, testimony about the typical expectations of gang members when confronted with a certain situation might be proper opinion testimony. However, the prosecution may not elicit, as its sole evidence of an element of the charged offense, answers to hypothetical questions from an expert who testifies that the charged defendant satisfied an element of the charged crime such as subjective knowledge or intent. (People v. Garcia, supra, 153 Cal.App.4th at p. 1513; People v. Killebrew, supra, 103 Cal.App.4th at p. 658.) With these legal guidelines and our standard of review in mind, we turn to the specific issues that Scarberry raises on appeal.

B. Obviously Transacting for Prostitution

1. Preliminary Questions

First, Scarberry complains about Detective Connerss testimony that his e-mail meant that he was obviously . . . entering into a business transaction for prostitution with Summer. Detective Conners was voir dired about his qualifications. He testified that in his work, he specialized in the investigation of online child exploitation and child prostitution. In two and a half years of this work, he had investigated 12 to 15 cases of child prostitution. He had talked with child prostitutes and their pimps. He had attended courses on online child exploitation and child prostitution. He had been trained to interview child victims. He had been designated as a county expert on child sexual assault and online exploitation of children. The trial court permitted him to testify as an expert witness on child sexual assault and online exploitation of children.

After a printout of the e-mail conversation was received into evidence, the prosecutor asked Detective Conners to recount its contents for the jury. Scarberrys e-mail read: First of all how old are you and what kinda . . . money are we talking about and can you host do you have incall are you working for the police. The prosecutor asked the officer about the significance of the questions that Scarberry asked, based on his training and experience. Detective Conners offered his view of what each question signified and what certain terms meant in the context of prostitution. When reviewing Scarberrys question what kinda . . . money are we talking about, Detective Conners testified that obviously [Scarberry was] entering into a business transaction for prostitution.

On appeal, Scarberry argues that Detective Connerss testimony was an improper expert opinion telling the jurors how to decide the case. The Attorney General notes that trial counsel made no objection to this inquiry. Despite this fact, Scarberry contends that this claim of error was sufficiently preserved for appeal by his trial counsels objection posed later in Detective Connerss testimony. We may not set aside a judgment because of the erroneous admission of evidence unless a timely objection was posed in the trial court. (See Evid. Code,  353, subd. (a); People v. Lilienthal (1978) 22 Cal.3d 891, 896.) As trial counsel did not raise this issue in a timely manner before the trial court, Scarberry cannot raise it on appeal.

Alternatively, Scarberry contends that trial counsels failure to make a proper objection deprived him of the effective assistance of counsel without any conceivable tactical justification, warranting relief on appeal. A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 687-696; People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) As such, we will address the merits of this claim of error, in order to address the ineffective assistance of counsel issue.

2. No Error

An experts opinion testimony must have some tendency to prove a disputed material fact. (See Evid. Code,  210, 350.) An attempt requires a specific intent to commit the underlying offense. (People v. Kipp (1998) 18 Cal.4th 349, 376, cert. den. sub nom. Kipp v. California (1999) 525 U.S. 1152; see  664, subd. (a).) A lewd act requires a willful intent to arouse, appeal to or gratify the lust, passion or sexual desire of the accused or the child. ( 288, subd. (a).) Thus, Scarberrys intent was an essential element of the charge on which the prosecutor had the burden of proof beyond a reasonable doubt. (See In re Winship (1970) 397 U.S. 358, 364.)

On appeal, Scarberry argues that Detective Connerss testimony that the defendant was entering into a business transaction for prostitution was an improper opinion testimony directing the jury to find that he harbored the required intent to commit a lewd act with a child under 14. We disagree. When Scarberry asked Summer what kinda . . . money are we talking about, the officer reasoned that he was seeking the services of a prostitute. When his response is read in context, Detective Connerss testimony does not appear to be tantamount to an expert opinion on Scarberrys intent to commit the charged crime, but a reasonable inference that a police officer might make from the question that Scarberry posed.^[6] We are satisfied that the evidence was properly admitted and thus, no ineffective assistance of counsel arose from trial counsels failure to object to it. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851; see also Strickland v. Washington, supra, 466 U.S. at p. 687.)

3. No Prejudice

Even if we assume arguendo that this evidence should have been excluded, its admission was harmless. The jurors were instructed that theynot Detective Connershad the exclusive power to decide what the facts were. (See CALCRIM No. 200.) They were also specifically admonished that they need not accept any proffered opinion testimony as true. The meaning and importance of any opinionas well as the truth and accuracy of any information on which the expert relied for that opinionwere matters for the jury to decide. The jury was admonished that it had the power to disregard any opinion that it found unbelievable, unreasonable or unsupported by the evidence on which the expert relied. (See CALCRIM No. 332.) We presume that the jury followed these instructions. (See People v. Delgado (1993) 5 Cal.4th 312, 331.)

The tone of the challenged aspect of Detective Connerss testimony was informative, not accusatory. Nothing about the challenged statement rose to the level of usurping the jurys factfinding function with regard to the significance of the e-mails that Scarberry sent. Even if we were to assume arguendo that the trial court erred in allowing the officer to give this testimony, we would not find that its admission constituted prejudicial error. It is not reasonably probable that a result more favorable to Scarberry would be reached absent this minor error, if error it be. (See People v. Rodrigues, supra, 8 Cal.4th at p. 1126; see also Strickland v. Washington, supra, 466 U.S. at p. 687.)

C. Inquiries about Parents

Scarberry also contends that Detective Conners offered improper speculation in the guise of expert testimony when he testified about the significance of the defendants e-mail inquiries about Summers parents. At trial, a printout of an e-mail from Scarberry to Summer was received into evidence. In it, Scarberry asked where is [sic] your parents. The prosecutor asked Detective Conners to explain the significance of this question, based on his training and experience. Trial counsel objected that the question called for speculation, but the trial court overruled the objection.

Detective Conners went on to testifybased on his experience of child sexual abuse and online child exploitationthat the question was significant because a childs parents [would naturally] interfere with a child having sexual relations with a 39-year-old man. And this 39-year-old man is determining the location of those parents as to whether or not theyll interfere. The prosecutor then asked the officerapplying his training and his experience of the postings he had seen for prostitutionif it was common for someone seeking an adult prostitute to ask about her parents. Detective Conners replied that Scarberrys question was quite uncommon, explaining that an adult would not normally be concerned about the location of an adult prostitutes parents. His reply suggested that Scarberrys question demonstrated his awareness that Summer was a young girl, not an adult prostitute.

We do not view the challenged evidence as an improper expert opinion or speculation, but as a reasonable inference that a working police officer might draw about the significance of the question that Scarberry asked. In this matter, the prosecution had the burden of proving that he had the specific intent to willfully commit a lewd act with a child under the age of 14. (See  288, subd. (a), 664.) The People were entitled to put on evidence to prove these elements. It introduced printouts of the e-mails that Scarberry exchanged with Summer and asked Detective Conners to explain the significance of some of his questions to her.

In support of his claim of error, Scarberry cites People v. Killebrew, supra, 103 Cal.App.4th at pages 651-659. In Killebrew, an expert witness offered testimony about gangs and gang psychology, identifying major gangs in the area, discussing the types of criminal activities that they can be involved with, and explaining how one gang might relate to another. This testimony was admittedly appropriate for an expert to offer. However, the expert went further, offering his view that when one gang member in a car possessed a gun, every other gang member in that car knows that the gun is there and constructively possesses the gun. (Id. at p. 652.) In answer to hypothetical questions, the expert testified that each occupant of the car knew that there was a gun in the car and all of the charged defendants jointly possessed it with every other person in the car for their mutual protection. This expert testimony was the only evidence that the prosecution offered to prove key elements of the crime. (Id. at p. 658.)

Killebrewhaving been convicted of conspiring to possess a handgunsuccessfully argued that the expert offered an improper opinion of his subjective knowledge and intent, not more general evidence of gang culture and habit that would be admissible. (People v. Killebrew, supra, 103 Cal.App.4that pp. 647, 652-659.) Measured against the facts of Killebrew, it is clear that Detective Connerss testimony was benign. It was not the type of overbearing opinion evidence that effectively usurps the jurys factfinding role that was condemned in Scarberrys cited authority. Detective Connerss testimony could be seen as more general than specific to the charged defendant. No hypothetical questions were asked to elevate an opinion about generalities to evidence specifically tied to Scarberrys subjective intent.

Significantly, the challenged testimony was not the only evidence offered to prove the element of intent. Detective Conners offered the jury a reasonable inference that could be raised from the primary evidence of that intentthe printouts of the e-mails themselves. We are satisfied that the trial court acted within its authority when admitting this evidence. (See People v. Valdez, supra, 58 Cal.App.4th at p. 506; see also People v. Sanders, supra, 11 Cal.4th at p. 508; People v. McAlpin, supra, 53 Cal.3d at p. 1299.)

D. Objection Sustained

Scarberry also complains that Detective Conners was asked to explain the significance of his last e-mail to Summer just before leaving to meet her. When the prosecutor posed this question, Scarberry raised an objection, which the trial court sustained. Detective Conners never answered the prosecutors question, so there was no evidence before the jury from him to complain of on appeal. A counsels question is not evidence, as this jury was specifically admonished. As Scarberry prevailed at trial and successfully prevented Detective Conners from answering this question, he has no ground for appeal from this exchange.

IV. EXPERT WITNESS

Scarberry also challenges the trial courts decision to allow Detective Conners to testify at all as an expert witness. He asserts that the prosecution deliberately failed to notify the defense of its intent to have Detective Connersthe lead detective on the case and the sole prosecution witnesstestify as an expert witness. He urges us to find that this breach not only warranted sanctions, but requires exclusion of this testimony in order to preserve his constitutional rights to a fair trial and to present a meaningful defense. (See U.S. Const., 6th & 14th Amends.)

However, Scarberry did not raise this issue in the trial court when Detective Conners was being offered as an expert witness, although he had an opportunity to voir dire the officer before the trial court ruled that he could testify as an expert. Scarberry did not raise the lack of discovery objection until the prosecution was well into its direct examination of Detective Conners.^[7] We have no authority to set aside a judgment because of the erroneous admission of evidence unless the defendant made a timely objection in the trial court and made it on the specific ground asserted on appeal. (See Evid. Code,  353, subd. (a); People v. Lilienthal, supra, 22 Cal.3d at p. 896.) As the discovery issue was not raised in a timely manner in the trial court, Scarberry is barred from raising this claim of error on appeal.^[8]

V. EVIDENCE CODE SECTION 352

A. Standard of Review

Scarberry also contends that the trial court erred by refusing to exclude evidence that he argues was irrelevant and highly prejudicial. He reasons that in admitting this evidence, the trial court violated his state and federal rights to due process and a fair trial. (See U.S. Const., 6th & 14th Amends.; Evid. Code,  352.) A trial court may exclude otherwise admissible evidence if its probative value is substantially outweighed by its prejudicial effectif its admission would result in the undue consumption of time, a danger of undue prejudice, confusion about the issues or the danger of misleading the jury. (Evid. Code, 352.) That discretion is wide and, on appeal, we will not disturb a trial courts exercise of it absent a clear abuse of discretionunless the prejudicial effect of the evidence clearly outweighs its probative value. (See People v. Karis (1988) 46 Cal.3d 612, 637, cert. den. sub nom.Karis v. California (1989) 490 U.S. 1012.)

When we assess the trial courts ruling, we must consider the probative value and prejudicial effect of the challenged evidence in an appropriate manner. All evidence that tends to prove the defendants guilt is necessarily prejudicial. (People v. Yu (1983) 143 Cal.App.3d 358, 377, cert. den. sub nom. Yu v. California (1984) 464 U.S. 1072.) It is not unfair to paint a faithful portrait of a person. (See Peoplev. Harris (1998) 60 Cal.App.4th 727, 737.) The prejudice that Evidence Code section 352 seeks to avoid is not that naturally flowing from relevant, highly probative evidence. Instead, the statute attempts to avoid the prejudging of a case based on extraneous facts. (People v. Zapien (1993) 4 Cal.4th 929, 958, cert. den. sub nom. Zapien v. California (1993) 510 U.S. 919; People v. Escobar (1996) 48 Cal.App.4th 999, 1023.) In this context, prejudicial evidence tends to evoke an emotional bias against the defendant as an individual based on evidence that has very little relevance to disputed trial issues. (People v. Bolin (1998) 18 Cal.4th 297, 320, cert. den. sub nom. Bolin v. California (1999) 526 U.S. 1006; People v. Yu, supra, 143 Cal.App.3d at p. 377.) With these principles in mind, we turn to the specific evidence that Scarberry contends should have been excluded from evidence.

B. Wolfnursehunter@yahoo.com E-mail Moniker

First, Scarberry argues that the trial court erred in refusing to exclude references to his e-mail address, including his wolfnursehunter moniker. He moved to exclude this evidence before trial, but the motion was denied. The trial court rejected the claim that the evidence was prejudicial and found that it was probative. At trial, the jurors saw this e-mail address along with Scarberrys name on the printouts of the e-mail exchanges that he had with both Emily and Summer. Detective Connerss testimony and the prosecutors closing argument also made mention of it.

Scarberry argues that the evidence was highly prejudicial and lacked any genuine probative value. We disagree. His intent was the central issue in dispute at trial. (See  288, subd. (a), 664, subd. (a).) The prosecutor was obligated to prove the existence of that intent beyond a reasonable doubt. (See In re Winship (1970) 397 U.S. 358, 364.) A juror could reasonably infer that a person who identified himself as a wolfa sexually charged termwhile contacting someone through the erotic services section of an Internet Web site possessed an intent to commit a sexual act. Thus, the evidence was probative. The prejudicial effect of the evidence was not the type of prejudice that would inflame jurors or encourage them to prejudge the case based on extraneous facts, but was evidence directly related to the key element of Scarberrys intent. (See People v. Zapien, supra, 4 Cal.4th at p. 958; see also People v. Bolin, supra, 18 Cal.4th at p. 320; People v. Yu, supra, 143 Cal.App.3d at p. 377.) Thus, the trial court did not abuse its discretion in finding the challenged evidence more probative than prejudicial and allowing its admission. (See Evid. Code,  352.)

C. Knowledge of Places Where Adult Prostitutes Congregate

Scarberry also contends that the trial court erred in refusing to exclude statements he made demonstrating his knowledge of locations where adult prostitutes congregate. Before trial, he moved to exclude a postarrest statement he made to Detective Conners suggesting that he knew of local places where prostitutes could be found. Defense counsel argued both that the evidence was irrelevant and that even if it was relevant, it was more prejudicial than probative. The trial court denied the motion. At trial, the jury heard a recording of Scarberrys statement, including his reference to a place where he thought that prostitutes were operating and his inquiry whether Detective Conners had tried to arrest anyone there. In his closing argument, the prosecutor reasoned that this evidence demonstrated that Scarberry knew where prostitutes were located and suggested that he was attempting to work out a deal with police.

On appeal, Scarberry contends that because his statement pertained to places where adult prostitutes congregated, the evidence was irrelevant because he was charged with an attempt to commit a lewd act with a child. His view of the relevancy of this evidence is too narrow. Relevant evidence is evidence that has any tendency in reason to prove or disprove any disputed fact of consequence to the determination of the action. (Evid. Code,  210.) The key issue at trial was whether Scarberry intended to commit a lewd act or merely intended to give Summer money without engaging in any sexual acts. Evidence that he knew where prostitutesregardless of their agegathered was relevant, as it had some tendency to prove his intent to engage in a sexual act.

Scarberry also argues that whatever relevancy this evidence might offer, it was far outweighed by its prejudicial effect. Again, we disagree. In our view, this evidence was not unduly prejudicialthe trial courts ruling did not fall outside the bounds of reason. (See, e.g., People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) We find that the trial court did not abuse its discretion in finding that this evidence was more probative than prejudicial. (See Evid. Code,  352.)

D. Potential Consequences

Scarberry also complains that the trial court erred in refusing to exclude statements about possible consequences of his arrest and conviction. He moved to exclude this evidence before trial. The prosecution argued that the statements showed that he knew he had done something wrong. Defense counsel argued that inquiries about the consequences of the arrest were ambiguous and could be misconstrued by the jurors as admissions of guilt. The trial court denied the motion, ruling that the meaning of the statements was an issue for the jury and specifically rejecting defense counsels Evidence Code section 352 objection.

At trial, the jury heard a recording of statements Scarberry made to police at his arrest, including: How much time am [I] looking at?; How long will I be in jail?; How much jail time does this carry?; Will I get off with a fine?; and [W]ill I be classified as a sex offender? They also heard Detective Conners recount some of these statements during his testimony. During closing argument, the prosecutor argued that when he asked how much time he was looking at, Scarberry knew that he was guilty.

On appeal, Scarberry argues that this evidence should have been excluded as akin to evidence of an offer to plead guilty. He contends that the statements had no probative value and thus, should have been excluded as more prejudicial than probative. (See Evid. Code,  352.) Again, we disagree with his too-narrow view of relevancy. The evidence had a tendency in reason to prove Scarberrys intent to commit the charged offenses, because the jury could have viewed his queries as an admission of guilt. The evidence was relevant, and the trial court acted within its discretion when finding that its prejudicial effect did not outweigh its probative value.

E. Request for Attorney

Scarberry also complains that the trial court erred in admitting his request for an attorney as part of his statement to Detective Conners. He moved to redact this query from his statement to Detective Conners before his statement was admitted into evidence, but the trial court denied this request. It rejected an Evidence Code section 352 objection, finding no prejudice in the admission of this evidence. At trial, the jury heard a recording of Scarberrys statement to police that included his question about whether he could get a PBA or public attorney.

Scarberry also argues that whatever minimal probative value we may find from this evidence was outweighed by its great potential for prejudice, because it suggested to the jury that this was not his first experience with the criminal justice system. (See Evid. Code,  352.) The manner in which the jury should have interpreted the evidence was a subject for argument in the trial court, going to the weight but not the admissibility of the challenged evidence. Scarberry has not convinced us that this trial court ruling that the evidence was more probative than prejudicial was outside the bounds of its discretionary authority. (See, e.g., People v. DeSantis, supra, 2 Cal.4th at p. 1226.)

VI. PROSECUTORIAL MISCONDUCT

A. Entrapment Argument

Scarberry also asserts that several instances of prosecutorial misconduct occurred at trial. First, he complains that the prosecutor countered a defense of entrapment in his argument to the jury. As Scarberry did not assert a defense of entrapment at trial, he reasons that the prosecution attempted to recast his actual defense into one of entrapment, misleading the jury into believing that his defense of lack of intent was effectively withdrawn. He contends that this misconduct violated his state and federal rights to due process, a fair trial and the presentation of a meaningful defense. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I,  15.)

In the trial court, the prosecutor argued about the elements of an entrapment defense that he expected to be included in anticipated jury instructions. Defense counsel objected that the argument was irrelevant because she would not be offering an entrapment defense. The prosecutor told the jury that if the defense did not argue entrapment, they should completely disregard his argument about this matter and put it out of your mind. Its not something for you to consider any longer.

After the defense presented its own closing argument, the prosecution argued that the defense argument was ambiguous about entrapment. The prosecutor reasoned that Scarberry was really offering an entrapment defense. The prosecutor told the jury that he would ask for an entrapment instruction and proceeded to discuss the elements of that defense. In fact, no entrapment jury instructions were given.

On appeal, Scarberry contends that the jury was misled by the prosecutors argument about an entrapment defense made after defense argument had been completed. His counsel did not raise any objection to this argument at the time it was made. The California Supreme Court has repeatedly held that in order to preserve an issue of prosecutorial misconduct for review on appeal, the defendant must request an admonition from the trial court. (People v. Valdez (2004) 32 Cal.4th 73, 122, cert. den. sub nom.Valdez v. California (2005) 543 U.S. 1145; People v. Cox (2003) 30 Cal.4th 916, 952, cert. den. sub nom. Cox v. California (2003) 540 U.S. 1051; People v. Earp (1999) 20 Cal.4th 826, 858, cert. den. sub nom.Earp v. California (2000) 529 U.S. 1005; see People v. Sapp (2003) 31 Cal.4th 240, 279, cert. den. sub nom.Sapp v. California (2004) 541 U.S. 1011.) This requirement allows the trial court an opportunity to correct any error. (People v. Cox, supra, 30 Cal.4th at p. 952.) If the defense fails to request an admonishment, the right to appeal the issue is waived. (People v. Earp, supra, 20 Cal.4th at pp. 858-859.)

Scarberry urges us to find that it would have been futile for defense counsel to object and that the lack of a trial objection does not bar him from presenting this issue on appeal. In these circumstances, we may review the merits of a claim of prosecutorial misconduct only if an admonition would not have cured the harm caused by the alleged misconduct. (See People v. Valdez, supra, 32 Cal.4th at p. 122.) We are satisfied that the prosecutors argument about an entrapment defense was not so extreme or inherently prejudicial that a timely admonishmentif soughtcould not have cured the error. (See id. at p. 123; People v. Dennis (1998) 17 Cal.4th 468, 521, cert. den. sub nom.Dennis v. California (1998) 525 U.S. 912; People v. Jennings (1991) 53 Cal.3d 334, 373, 380, cert. den. sub nom.Jennings v. California (1991) 502 U.S. 969 [nonresponsive answer].) In fact, the prosecution had already conceded that the entrapment defense might be irrelevant and the trial courts failure to instruct on it must have made that clear to the jury. Thus, we find that an objection would not have been futile, that it should have been raised, and that its lack bars Scarberry from raising this issue on appeal.

Alternatively, Scarberry asserts an ineffective assistance of counsel claim on appeal, arguing that his trial counsel fell below the objective standard of reasonable counsel by failing to make a proper objection to this argument. To establish a claim of incompetence of counsel, a defendant must establish that counsels representation fell below an objective standard of reasonableness. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688; People v. Ledesma, supra, 43 Cal.3d at p. 216.) Our hindsight scrutiny of defense counsels performance must be highly deferential. On appeal, the defendant must overcome the presumption that under the circumstances, the challenged action or omission might be considered a sound tactical decision. (See Strickland v. Washington, supra, 466 U.S. at p. 689.)

In this matter, Scarberrys defense counsel had already objected to an earlier argument about entrapment, prompting the prosecutor to urge the jury to disregard his own argument if this defense was not pursued. Having already obtained this concession from the prosecution, defense counsel may have decided as a matter of trial tactics not to raise the matter up again. Thus, we find that defense counsels performance in failing to make a second objection to the prosecutors closing argument did not fall below an objective standard of what is to be expected of reasonable counsel. (See Strickland v. Washington, supra, 466 U.S. at p. 689.)

B. Display of Slide

Scarberry also contends that the prosecutor committed misconduct during argument by surreptitiously displaying a slide in a deliberate attempt to inflame the jury and appeal to the jurors emotions. He argues that in so doing, the prosecutor acted in violation of his state and federal rights to due process and a fair trial. (See U.S. Const., 6th & 14th Amends.; Cal. Const., art. I,  15.)

During the prosecutions closing argument on the morning of January 8, 2007, a slide was presented reading that child prostitution was a nationwide problem, that victims of child prostitution come from all walks of life and that we must hold accountable the adults responsible for the supply and demand in this industry. (Capitalization omitted.) The prosecutor did not read this slide aloud, but it appears that it was left on display long enough for the jurors to read. Defense counsel was not aware that this slide was shown to the jury, as she was taking notes to counter a prosecution comment during her own, upcoming argument. The matter was brought to defense counsels attention after all closing arguments were completed. Her motion for mistrial based on this slide presentation was filed and denied the following day.

We are not certain whether defense counsel preserved this issue for consideration on appeal, because she did not seek an admonition from the trial court about this slide at the time that it was presented. (See People v. Valdez, supra, 32 Cal.4th at p. 122.) She made a motion for mistrial once the matter was brought to her attention, but she did not seek an admonition to the jury for fear of bringing the information to the jurys attention again.

We need not resolve this question because Scarberry asserts an ineffective assistance of counsel claim on appeal, allowing us to consider the merits of this claim of error in order to resolve that related question. On appeal, Scarberry contends that there was no tactical reason for trial counsel to fail to object during cross-examination. We disagree. Defense counsel was unaware of the slide at the moment that it was read by the jurors for a proper reasonbecause she was preparing for closing argument by noting a prosecution oral statement that she wanted to be certain to counter. Even reasonably competent counsel may miss a visual presentation made without verbal cues in such circumstances. Even if she had been aware of the slide, her motion for mistrial makes it clear that she would have had a tactical reason not to raise an objection, because to do so would have only highlighted it for the jurors attention again. Thus, Scarberry has not demonstrated ineffective assistance of counsel on this ground.

Scarberry also argues that the slide stating that we must hold adults accountable for child prostitution was an improper attempt to align the jury with the prosecution. The trial court heard this argument and rejected it when denying his motion for mistrial. The use of deceptive or reprehensible methods to attempt to persuade a jury constitutes prosecutorial misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Whether a particular incident is incurably prejudicial and thus merits a mistrial is by nature speculative. (People v. Hines (1997) 15 Cal.4th 997, 1038, cert. den. sub nom.Hines v. California (1998) 522 U.S. 1077; People v. Haskett (1982) 30 Cal.3d 841, 854.) In all but an unusual case, the prejudicial effect of improperly admitted evidence can be cured by admonishment. (People v. Prather (1901) 134 Cal. 436, 439; People v. Allen (1978) 77 Cal.App.3d 924, 935.) The trial court acted within its authority when finding that the alleged misconduct was not incurably prejudicial and thus, properly denied the motion for mistrial.

C. Inflammatory Closing Argument

Next, Scarberry argues that the prosecutor committed misconduct when he engaged in inflammatory and irrelevant closing argument about evidence that should have been excluded at trial. He challenges prosecution arguments about his e-mail moniker, his knowledge of places where prostitutes congregate, and implications that he tried to make a deal with Detective Conners during his statement.

This claim of error fails for various procedural and substantive reasons. Scarberry raised no objection to any of the arguments he now asserts as misconduct, thus forfeiting the right to raise these issues on appeal. (See People v. Valdez, supra, 32 Cal.4th at p. 122.) These claims of error also fail because they are based on his underlying assertion that the trial court should have excluded the evidence discussed during these portions of the closing argumenta claim which we have rejected. (See pt. V., ante.) The admissibility of the underlying evidence and our sense that the inflammatory effectsif anyof that evidence could have been extinguished by a prompt admonition satisfy us that no ineffective assistance of counsel claim would prevail on appeal. Thus, this claim of error necessarily fails.

D. Violation of In Limine Motions

Scarberry also contends that the prosecutor twice committed misconduct by violating the trial courts in limine rulings. First, he complains that during trial, the prosecution referred to a traffic ticket issued to him after the trial courts in limine order precluded any reference to this at trial. Before trial, Scarberrys in limine motion was granted to prevent any prosecution witness from mentioning this citation. It also ordered Scarberrys statement to police to be redacted to exclude any reference to this traffic citation. When Detective Conners testified about checking on Scarberry before going to meet him on July 26, 2006, he told the jury that he found a record for Christopher Scarberry associated with a white Chevrolet Corsica.

Defense counsel made an objection and argued at a bench conference that this testimony violated the in limine order. The prosecution disagreed, noting that Detective Conners made no mention of a traffic ticket. The trial court did not resolve this specific issue, but was concerned that the manner in which the evidence was presented might suggest to the jury that Scarberry had a criminal recorda more serious matter than a simple traffic violation.

Back before the jury, the prosecutor made an initial attempt to elicit testimony from Detective Conners that did not suggest that Scarberry might have a criminal record, without success. Defense counsel was dissatisfied with this attempt. During a break in the trial, defense counsel drafted acceptable questions for Detective Conners, which the prosecutor asked. The officer told the jury that he had not reviewed any criminal records relating to Scarberry, but only found a record of a minor traffic violation.

On appeal, Scarberry argues that the prosecution violated the in limine order by asking the questions that it did. The initial questions asked by the prosecution did not violate the order at all, but appear to be an attempt to comply with that order. The later questions to Detective Conners were drafted by defense counsel herself. Scarberry cannot complain of the questions asked at his counsels request. In these circumstances, the doctrine of invited error applies to preclude reversal on appeal. (People v. Cooper (1991) 53 Cal.3d 771, 827, cert. den. sub nom.Cooper v. California (1991) 502 U.S. 1016; People v. Lara (1994) 30 Cal.App.4th 658, 673; see People v. Lucero (2000) 23 Cal.4th 692, 723-724, cert. den. sub nom. Lucero v. California (2001) 531 U.S. 1192.)

Scarberry also contends that the prosecution referred to his booking photograph in violation of the trial courts in limine order precluding any trial admission of this evidence. He acknowledges that the photograph was not admitted into evidence. No prejudice could result from the reference to this photograph which was not admitted into evidence.^[9]

VII. SUFFICIENCY OF EVIDENCE

Finally, Scarberry challenges the sufficiency of evidence to support his conviction. Specifically, he contends that the prosecution failed to prove that he harbored the intent necessary to attempt to commit a lewd act with a child. He argues that the evidence offered by the prosecution on his intent was absent, ambiguous, or merely improper assumptions and character attacks. (See  288, subd. (a), 664.)

In his interview with police, Scarberry denied having an intent to actually engage in sex with a minor. He told Detective Conners that he planned to give Summer the money she needed and leave. At trial, he noted this evidence, suggesting that he lacked the required intentthat he intended to give her money to help her out, not in exchange for sex. His defense attorney argued that there was a reasonable doubt whether he intended to commit a lewd act with Summer. The jury necessarily found that he harbored this intent when it convicted Scarberry of the attempt charge.

Interestingly, Scarberry did not make a motion for new trial on the basis of insufficiency of evidence. When the trial court rules on a motion for new trial made on sufficiency of evidence grounds, the trial court weighs the evidence and judges the credibility of witnesses. (People v. Lewis (2001) 26 Cal.4th 334, 364, cert. den. sub nom.Lewis v. California (2002) 535 U.S. 1019; People v.Robarge (1953) 41 Cal.2d 628, 633; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment,  102, pp. 134-136.) In the exercise of its supervisory power over the verdict, the trial court considers the probative force of the evidence and satisfies itself that the evidence as a whole is sufficient to sustain the verdict. (People v. Robarge, supra, 41 Cal.2d at p. 633.)

While a trial court determining a motion for new trial on insufficiency of evidence grounds would have been required to consider the credibility of the evidence of intent, we have no power to do so on appeal. The scope of our appellate review is quite narrow. (See, e.g., People v. Protopappas (1988) 201 Cal.App.3d 152, 167.) When testing for sufficiency of evidence, we determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof that Scarberry intended to commit a lewd act. We must view the evidence in the light most favorable to the jurys verdict and presume in support of those findings the existence of every fact that could be reasonably deduced from that evidence. (See People v. Johnson (1980) 26 Cal.3d 557, 576.) We may not reweigh or reinterpret the evidence on appeal. (People v. Pace (1994) 27 Cal.App.4th 795, 798.) We determine whether substantial evidence supports the jurys verdict, not whether evidence proves the disputed issue beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Crittenden (1994) 9 Cal.4th 83, 139, cert. den. sub nom. Crittenden v. California (1995) 516 U.S. 849; People v. Johnson, supra, 26 Cal.3d at p. 576.)

The same standard of review applies whenas herea conviction rests on circumstantial evidence. (See People v. Kraft (2000) 23 Cal.4th 978, 1053, cert. den. sub nom. Kraft v. California (2001) 532 U.S. 908; People v. Bloom (1989) 48 Cal.3d 1194, 1208, cert. den. sub nom. Bloom v. California (1990) 494 U.S. 1039; People v. Park (2003) 112 Cal.App.4th 61, 68.) As we must draw all inferences in support of the jurys finding, Scarberry bears an enormous burden when he challenges the sufficiency of evidence on appeal. (See, e.g., People v. Vasco (2005) 131 Cal.App.4th 137, 161.) We may reverse a judgment for insufficiency of evidence only if it appears that under no hypothesis whatever is there substantial evidence to support the underlying conviction. (People v. Bolin, supra, 18 Cal.4th at p. 331.)

Scarberry argues that his acts of solicitation were merely preparatory and did not rise to the level of an attempt to engage in lewd and lascivious conduct. In support of this argument, he relies on the Second Appellate District decision in People v. La Fontaine (1978) 79 Cal.App.3d 176, 180-183. Scarberry acknowledges that the holding of La Fontaine has been much criticized by other appellate courts, including our own. (See, e.g., People v. Herman (2002) 97 Cal.App.4th 1369, 1387-1392; People v. Ansaldo (1998) 60 Cal.App.4th 1190, 1195-1196.) We decline any implied invitation to reconsider our holding in Herman, as its reasoning remains sound. Thus, we find that La Fontaine does not persuade us to adopt Scarberrys argument.

This leaves us to analyze the requirements of an attempt and the evidence that was presented to the Scarberry jury. An attempt to commit a crime requires a specific intent to commit the underlying offense and a direct but ineffectual act done toward its commission. (People v. Herman, supra, 97 Cal.App.4th at p. 1385.) The defendants acts must go so far that they would result in completion of the crime if not frustrated by circumstances. (People v.Memro (1985) 38 Cal.3d 658, 698.) There is no bright-line test to distinguish between merely preparatory acts and commencement of a criminal design. However, the more clearly the intent to commit the offense is shown, the less proximate the acts in consummation of the crime must be. (Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 187-188.)

In this matter, the jury heard evidence from