P. v. Whyms

Filed 1/18/08 P. v. Whyms CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

A jury convicted defendant of attempted distribution or exhibition of harmful matter to a minor through the Internet (Pen. Code 664/288.2, subd. (b)), attempted lewd or lascivious act on a child under the age of 14 (Pen. Code 664/288, subd. (a)), and sexual intercourse with a minor more than three years younger than the defendant. (Pen. Code 261.5, subd. (c).)[1] Defendant was placed on probation on the condition that he serve one year in the county jail.

On appeal, defendant contends reversal of his conviction for an attempted lewd act is required because (1) the trial court failed to instruct sua sponte on entrapment; (2) trial counsel was ineffective; (3) the evidence that his conduct amounted to an attempt is insufficient. He also argues that his conviction for attempted distribution of harmful matter should be reversed because it violates the federal constitutions dormant Commerce Clause and the First Amendment. We affirm.

STATEMENT OF FACTS

In December 2003 Federal Bureau of Investigations (FBI) Special Agent Stacey Mitry was investigating sexual crimes against children, including Internet related crimes. Posing as a 13-year-old male or female, she entered on-line predicated chat rooms.[2] Mitrys screen name was Mandie14NSJ.

December 2, 2003

Defendant did not contact Agent Mitry in the chat room, but within an hour after she exited the chat room, at 2:55 p.m. on December 2, Mandie received an instant message from WHYMS84, defendants screen name. He asked where in San Jose she was located: Mandie responded and asked where he was. His next question was How old are you? Mandie responded she was 13. Whyms replied that he was 18. Mandie told him she liked older mature guys, but 18 is a little young. Whyms then told her he was actually 19, and that his name was Nate.

Mandie asked Nate what he looked like. He described himself as black, six foot one, 200 lbs., with black hair and brown eyes. Mandie responded You sound like a hottie. Whyms then said he was a freshmen at San Jose City and Mandie described herself as five feet tall, 105 lbs. with blonde curly hair and blue-green eyes and said she went to Presentation High School, an all-girls school.

Defendant then said: Are there a lot of lesbians there? You know Im playing. Mandie responded Not really that youd notice, but maybe a few who dont know it yet. Lol [laugh out loud].

He then asked her if she had a boyfriend; she said no. She then asked him if he had a girlfriend, and he said not anymore. Mandie asked him to tell her what happened. Whyms responded: Well, she was talking to people saying my dick was too big and she could find someone smaller, so I said okay, go ahead; Ill find someone who would like it big. Mandie replied: Ha, ha, ha. Thats funny even though its sad, too. Sorry your dick is so big. Lol. Defendant responded: Well, whatever. Girls some say they want a big one, but when the time comes, they dont. Its not even like massive, but its a cool size and Mandie wrote: Yeah, Im not that experienced, so I dont know which is better. Defendant asked her what sorts of things she had done. Mandie responded: Most stuff except full-on sex. Im only 13, you know. Defendant wanted to know what kind of stuff. Mandie said: Oral stuff and things like that, silly. She told him she thought he was funny.

Defendant asked why she didnt have a boy friend: she said her last one was immature like most younger guys. He asked her where she had met her last boyfriend; When she said she met him at the mall, they chatted about malls.

Defendant asked Mandie what kind of guys she liked. She said Nice guys who are cute and middle to big, but not small because she was small. Defendant said he didnt like small girls because There [sic] nothing to grab. Mandie assured him, Well, then, Lol. I got some junk in my trunk, meaning that she had big buttocks. Defendant asked: So you got ass? Mandie responded: Im no J. Lo booty, but its nice. Defendant wanted to know: And you white, right? She said Yup.

Defendant mused: White girl with ass. What a dream come true. Mandie responded Yup. Sometimes the brothas try to holla at me,[3] but I get white guys too. Ha ha. Defendant asked: Do you let them [] [] holla at you? Mandie wrote back: Of course. As long as they look good. Defendant responded: Too bad youre not looking for a man. Mandie wrote: Why do you think that? you can [holla at me]. Defendant responded: But I dont know if you would like me or not. Mandie wrote: Why not? Defendant said he didnt know. Mandie wrote: Well, why would you get in trouble? Cause of my age, you mean? Defendant said No. [] [] My last girlfriend was 15, so I really dont care. [] [] Age aint nothing but a number.

The conversation drifted to where he had met his girlfriend (a party), who he lived with (his grandmother), and that he had graduated from high school in 2003. Defendant then asked: So whats up? Mandie wrote: Nothing. Whats up with you? Defendant: You trying to holla? Mandie wrote that maybe she was, and he responded: Really? They talked about what they liked to do: Mandie said she liked to [h]ang out and shop and kick it with my friends, movies and stuff. He said he liked to [p]lay sports, go out with friends, chill with my girlfriend when I get one and stuff. They talked about their families: Mandie said she had one older brother aged 18, she shared the computer with him. Defendant said he had two younger brothers and a younger sister; they lived in L.A., his sister was 13, and he shared the computer with his grandmother.

These topics exhausted, defendant wrote: [s]o, yeah. Whats up with me and you? Lol. Mandie wrote: You tell me. He responded: Im trying to find out. She wrote: Its all good, to which he said: Really? She responded by sending a smiley face. Defendant wrote: Shit. If its like that, what you doing tonight? Lol. She said she was doing nothing, because she had school the next day. Defendant asked when Mandie was going to the mall again. Mandie informed him that her mother got home at 5:00 p.m. and she could not be on-line then. Defendant suggested she could call him on his cell phone. Mandie asked: What do you want to do? He responded it was up to her. She said: You tell me. Youre older. Ha ha. [] Kick it or something.[4] Defendant replied Do you? Mandie wrote: Sure, but what else? What are we going to do? Defendant replied: What do you mean something? We just met. Calm down there. Think about it. Mandie refused to be specific and wrote that she was being silly and shy, so forget it. K? Defendant told her not to be shy, but silly like him. Mandie replied with a smiley face. He asked her what she thought of him now and she wrote that she still liked him. They agreed to send each other pictures of themselves.

It took several minutes for defendant to send a picture of himself. He returned to the conversation at 3:45 p.m., typing Sorry, babe. He said he hoped she liked the picture, but if she didnt, [H]opefully we can still be friends. Okay? And if not and you dont ever want to talk to me again, I understand. Mandie told him not to be silly that he was cute. While he waited for Mandie to send him a picture of herself, they talked about Christmas shopping. By 3:57 p.m., Agent Mitry had sent defendant a picture of herself when she was 13 years old. When he received the picture he said it was nice, but he wanted to see the truck referring to her rear end. Mandie called him silly and crazy head and told him I dont have pics of the bootay, meaning her rear end. Defendant replied: Darn.

Defendant asked: You like me? Mandie assured him that she did.

Defendant then asked Mandie a series of questions about her prior boyfriends: how old was the oldest guy she had dated, were they in love with her, did they care about her. Mandie said she was too young for love. Defendant wrote: Thats not true. My mom was in love with my dad at 13 and then they got married at 19. Then she had me.

Defendant asked her what she was doing the next night and she reminded him that it was a school night. They talked about her not having a car, and his having access to his grandmothers car. He wrote: Maybe if we hook up and were together for a long time and you get your Ls [drivers license], Ill let you drive it. He said he would let her drive it even if they didnt hook up but only talked like friends. He gave her his phone number and told her to call any time, except when he was in class or at work, and he gave her those times. He said he had two jobs, one as a basketball coach for girls at a kindergarten to eighth grade school, and one as a counselor at a boys home on weekends. Mandie asked if he ever dated any of the girls at the school who were her age. He said he did not, but they gave him presents for Valentines Day.

At 4:24 p.m. defendant wrote: One girl was talking about sucking my dick and shit. Mandie asked him how old she was, and defendant replied she was 14, 13. One of those. Mandie responded: Like me. Is that bad? Defendant said he told the girl she couldnt handle it; he asked if Mandie could. Mandie said she didnt know. Defendant wrote: You know how to do it, right? Mandie wrote: Do what. Defendant replied: Nothing. Mandie then wrote: Come on and tell me. You mean a BJ [blow job]?

Mandie reminded him that she said had done that kind of stuff. He wanted to know if she liked it. She said she did, but she didnt know if she was good at it. When defendant asked what she was good at, she wrote Gymnastics. He wanted to know if she had given a hand job before. Mandie said no. He asked: Then what other stuff have you done besides those two? Mandie eventually said, oral and touching and stuff but not full-on sex. Defendant asked if the previous boyfriend had put it in your ass. Mandie said no, not anywhere except oral. He asked if she was going to wait to have sex until she was married; Mandie replied that she would have sex when she was ready. He wrote: Maybe youll be ready with me. Lol. She wrote: Maybe. Lol. Defendant said if he was with her and she wanted to do it, he wouldnt leave her. Then he wanted to know who made the moves on the first date, and do you swallow or spit? Defendant wrote: We need to hook up. Mandie wrote: I know.

Defendant told her to call him so they could get started. Mandie asked him what he wanted to do. He said he wanted to get to know her better. Then he asked: If I said give me a BJ, would you? Mandie responded that she would, because she liked him. She added: Why not? Its not illegal, is it? He said it wasnt. Then he wanted to know: What about in your ass or in front. Lol. She said she didnt know; any one he wanted. He said he wanted Both, and you sucking my dick and doggie style.

Defendant wrote: Where do you want to go to do it, but we got to talk first. He said he wanted to know more about her. Mandie said she had to go before her mom came home. Defendant asked her to call him that night, and said Nice meeting you. Mandie wrote it was nice meeting him, too. After a few more good-byes, the conversation finally ended.

December 3, 2003

The next day, December 3, Mandie called defendant on his cell phone. Her conversation with defendant, lasting from 12:40 to 1:05 p.m., was recorded. During this conversation, Mandie again reminded defendant she was 13, saying: You have to tell me six things that were going to do because youre six years older than me, so go. In addition, he gave her a new screen name. Immediately after the phone conversation Mandie sent an instant message to defendant using his new screen name. Their conversation was about what they wanted to do with each other when they met. Mandie wrote that the three things she wanted to do were look at him, smile and laugh because he was funny. Defendant wrote that he wanted to kiss her, feel her up and get a BJ. After the BJ, he wanted to fuck her, and then stick it in her ass, but only if she wanted him to. Mandie wanted to know if it would hurt, and if it had hurt the girl who was like my age. She also told him that her mom had let her go out with an older boyfriend until she saw him and could tell he wasnt 16. Her mom said he could get into a lot of trouble because of her age, and her mom got mad and grounded her for a long time. Defendant wanted to know if she had sucked the former boyfriends dick. She said she had, once. Defendant wanted to know how many others she had sucked. Mandie said a few, but she was not a whore.

Mandie asked defendant why he didnt date girls who were 18 and 19; he said he didnt know. Mandie then wrote: [A] lot of guys ask me, like, why dont I like boys 13 and 14, and I say look how dumb they are. They talked about meeting at Mandies school and also about meeting at a park on Friday. They also made arrangements to talk on-line when Mandie was in the school library. The instant messaging conversation ended at approximately 1:30 p.m.

December 4, 2003

On December 4, Mandie received an email from WHYMS84. Defendant wrote: Hey, babe. Whats up. How you doing? Fine I hope. Well, I just wanted to talk to you, but its after 5 p.m. so you cant talk on the phone, but its all good anywho. I was wonder [sic] if were still on for tomorrow and this weekend. If so, its hella cool that Im get [sic] to see you, not just for the sexually [sic] stuff, but maybe get to hook up with you, so yeah, I was online this morning but didnt see you, so I guess you were busy but its cool. Well, I hope you call me early so we can hang out tomorrow, but yeah, hit me up. Okay? Ttyl [talk to you later], okay? Bye-bye. Love, Nate, AKA Mini Fresh.

December 5, 2003

Mandie replied to defendants email the next day, December 5 at 10:30 a.m. She told defendant she could not meet him because she was grounded for cutting classes. She said she would call him but he should let her know when was a good time in case your other girlfriend is with you. Ha ha ha. At 11:14 a.m. she received a reply from defendant. He wrote: Okay, but I dont have another girlfriend. The only one I got is you.

December 6, 2003

On December 6, WHYMS84 sent an e-mail message to Mandie at 9:17 p.m. He indicated that he wanted to get together with her. He wrote that he was not trying to just get some and quit it. He added: I think I can have a relationship with you if you want to.

December 8, 2003

On December 8 at 3:21 p.m., Mandie emailed defendant to tell him that she was still grounded and couldnt wait until she was not grounded anymore. Defendant replied that he thought she didnt like him anymore, and indicated he was glad she still did. He asked her to call him on his cell and signed off: Love, Nate Dog. I miss you a lot and cant wait to see you and stuff.

December 9, 2003

On December 9, at a 9:45 a.m., defendant initiated an instant messaging session, writing: Hey, boo, what did you do? Mandie responded: Hey, you. He told her he couldnt wait until she was out of trouble. Mandies next response was that while she was on-line waiting for him, some guy sent me some nasty pics. Defendant asked if she told him she had a man. According to Mandie, the man was all proud of his size. She told defendant that she told the man: my man is bigger. Even though I dont really know. Defendant asked if he was white, and when she said he was, defendant assured her he was bigger. She said she would not be grounded the next week. Defendant wrote: Man, I hella want to see you. Then they talked about what gifts they wanted for Christmas. Defendant next indicated he was going to send her something that someone had sent him. He sent her a series of animated cartoon figures engaged in various sexual acts with explanatory text. She wrote that she liked the way they looked. He asked which one she wanted to do first, the BJ or the 69.[5] He asked what she did after school, she asked where he coached basketball. He repeated that he wanted to see her and next week was so far away. They eventually signed off at 10:30 a.m. Defendant wrote: Love ya. Mandie responded Love you, too.

At 11:09 a.m., defendant sent her three pictures of himself; one of them was the picture he had sent her before. At 11:13 a.m. he emailed Mandie: Your nickname from me is Baby Girl. Is that cool?

At 3:00 p.m. Agent Mitry as Mandie initiated an instant messaging session with defendant. She wrote: Hey you. He responded Hey, babe. They discussed the pictures of himself that he sent her. Mandie wrote she liked the new ones he sent, followed by a smiley face. Mandie asked defendant whats up? He said he was [J]ust thinking of you. She responded: Aww, sweet. He added: And the stuff I want to do to you. She wrote: Tell me two things, he he. He wrote: I want to fuck you then fuck you in the azz. She asked if he had a condom, because she didnt. They talked about whether they would use condoms. She expressed concern that it would hurt, since Ive never had real sex before. He assured her that well just go slow in case it does hurt and if it did hurt real bad Ill stop. He said she would have to be really wet, or you can suck it real good.

Mandie asked if he had pets, and said she loved dogs and wanted to be a vet. Defendant responded: I have a big dog. Lol. She replied: Ha ha.

He asked if she thought about him at school. She said she did, and asked: What about you? He wrote: Yeah. Thats why I am always emailing you. Mandie made a smiley face and asked: So when am I going to see you? Next week? Defendant did not answer that question. They conversed about other things. Returning to the subject of Mandie thinking about him at school, defendant asked Mandie: What do you think about me at school? She replied: All kinds of stuff. [] Like how cute you are and when Im going to see you and if youll like me a lot and stuff like that. Mandie asked defendant what he thought about the way she looked and acted. He said that he thought about how fine she looks and if we were going to hook up and stuff, be together, and if she really is going to do the stuff she says, but really I want to hook up with you. Mandie wrote: I do, too, totally, and a smiley face. In response to his prompt, she added: Want to hook up and be together, and I want to do and try all the stuff we said. Defendant said he was thinking [he didnt] want to hurt her. He asked if she knew what people meant by pop cherry. He asked her how far she had gotten, and if anybody had put it inside you. When she said no, he responded: Well, Ill probably be the first one. She wrote: I know, silly, unless you dont want to. Then tell me. He asked her if she had bled down there before and said I hella want to. Mandie she had not yet had a period and asked if that was okay with him. He responded: Me just talking about it makes me want to do it more. Mandie replied: Well, tell me when and where are we going to go. I want to know everything. Im excited.

A few lines later he declared: I hella like you and not just for sex but more. Mandie wrote: Well, you make me feel confused. You say youre all excited too, but then you act like nothing matters. [] Its not like I have a license and a car and can just go somewhere whenever I want to. It would be easy if I did, but Im only 13, and I got to either get a ride lined up or get the bus. All you gotta do is drive yourself around. Defendant then wrote: Either Ill pick you up or Ill tell you what bus to take. Mandie wanted to know: Well, when, so I can fake sick or cut school or whatever. Defendant asked: What day? Do you want to do this next week? Mandie replied: You tell me. Youre the one with the car and three jobs. Lol. Defendant suggested Monday. She said she couldnt come Monday because of gymnastics. He wrote: You cant even meet. [] Just to say hi? Mandie relented and said Oh, okay. I guess so, but I have to take the bus off school then get back before my mom comes.

Defendant proposed picking her up after school Monday, hanging out for a little while and then dropping her off at gym. She said that wouldnt work because her mom was picking her up. Defendant wrote: Never mind, then. Mandie wrote back: Ill just wait to see you when Im 16 and have a car. K? Defendant typed: Thats what you want to do, and a smiley face. Mandie replied: No, but I feel bad cause nothing will work for us. Defendant wrote: It will as soon as you get off grounded. It will. Trust me. Mandie then suggested that she skip on Tuesday and take the bus to my fav[orite] park and meet you there. K? Defendant asked: Where that? Mandie said it was called Marijane Park and was near Highway 17. Its real quiet and, like, private, and I really like it there. I could look it up on-line if you dont know where it is. []  [] Want me to look it up? Defendant said: Yeah, babe. Mandie told him to hold on, then said she looked at Google.com and put Marijane Park and it gave the address. She asked: Can you look and find it? She said she had just sent him the map by email. He thanked her for looking it up. She asked if he thought he could find it. He said Yeah and she sent him two smiley faces. Defendant asked her what time she wanted to meet. Mandie told him to pick a time and she would be there looking cute. He he. Its cold so no short skirts. Sorry. He said: Damn. [] [] If you could wear a skirt without any pants it would have been easier. He asked her if she wanted to fuck standing up or laying down. She said she didnt know, whichever hurt less. Defendant said standing up would hurt less and he would pick her up. He wanted to know if they were going to do this in a bathroom. Mandie said there was a big bathroom there, so yeah, I guess. [] [] I cant wait and she made a smiley face. He said he was trying not to get hard. She said she was sorry if he was hard, smiley face. A few lines later he asked if she was going to swallow. Mandie wrote: Yeah. Why? [] [] Is that good or bad. He wrote: Good. Mandie replied: K. Well, what time am I going to see you then and swallow. He he. You make me talk dirty. Lol. He asked her if she wanted to fuck real bad; she said Yeah, now I do. He asked if she wanted his dick; she said I wish I wasnt grounded. Yeah. He replied: Then Ill turn you around and fuck you in your ass real good. Mandie wrote: I am so excited I cant stand it now. Then she said she had to get off the computer before her brother saw what was going on. He wrote: Love you. Mandie wanted to know what time Tuesday so I can check the bus? Oh, Im sorry. Love you more. After several more exchanges of love, the conversation finally ended.

December 10, 2003

On December 10, at approximately 3:00 p.m., Agent Mitry sent defendant the following email: Whats up? Im on-line but I cant remember if youre working tonight or not. Hope to see you on here and because I dont want to be a bugaboo then Ill just say cant wait to see you on Tuesday either. Did you get the E-mail about the park? I hope so. I didnt know if would work though. Anyways, Im going to call you or be on-line tomorrow after school, K? [smiley face] Mandie, AKA baby girl.

Defendant replied at 11:38 p.m.: Hey, baby girl, whats up? Me, nothing. I just got your E-mail. Sorry it took so long for me to write you. But anywho, I really, really cant wait to see you and be with you and maybe hook up. I cant wait. I really want to fuck you and so hard, then I want you to suck my dick real good, so then I can cum in your mouth, but yeah, that coming. Im counting the days till Im with you. I want you to wear that skirt so I can lift it up and put my dick inside you all the way and pop your cherry. I hope you moan and yell my name out loud like, Faster, faster, Nate, Nate, Nate, Nate. Jk [joke]. Well, yeah I better go. Im getting really hard just thinking of it. I may be at work, but still call me. Okay? Love you very much. Love, Nate, AKA baby boy. P.S. My dick is really big. Because you wanted to know, its six inches in size. Jk [joke]. I dont know, ???? Well, bye. Call me, please. I need to hear your voice to make my day? I love you.

December 11, 2003

Agent Mitry responded to defendants email the next day. She said she would try to call him on the weekend, but if she couldnt she would see him on-line Monday morning. She wanted to know what he was going to wear, and what he was going to bring. She signed off Love, Mandie, AKA baby girl.

December 12, 2003

Defendant emailed Mandie at 12:36 p.m. on December 12: Cant wait to see you, fuck you very good.

December 14, 2003

Defendant emailed Mandie on December 14: Hey, baby girl. Whats up? Me, nothing. Just sitting here on this boring Sunday afternoon just thinking of you and how I count the days till Ill be in your arms and cant wait to give you a big hug and see that junk in the truck. Lol. So yeah, tomorrow its the big day. So, yeah, Ill holla at you later, boo. I cant wait to see you. OMG [Oh my god]. I really think well make a good couple and that Ill get to be the first to pop the cherry. Lol. But yeah, I cant wait till you give me a BJ and swallow and let me go down on you, then we have sex. Lol. But yeah, cant wait to give you a big, big, big, big, big, big, big hug. Well, got to go. Ill talk. Bye. Love, AKA baby boy.

December 15, 2003

At 9:17 a.m. Agent Mitry as Mandie emailed defendant to tell him that she was off grounded. At 9:58 a.m. defendant instant messaged Mandie and a desultory conversation with her ensued while defendant was simultaneously [t]yping something for [his] boss. Referring to one of Mandies earlier emails, he asked how she wanted him to warm her up at the park. She wrote : Hold me for starters and kiss and stuff. []  [] like what you wrote in your juicy email. Defendant responded: Which one? [] [] The one where I want you to suck my D and then swallow? He wrote he couldnt wait to see her and she said she couldnt wait either. He also wrote that he went looking for the park over the weekend and wasnt sure if he had found it. The session ended shortly thereafter.

At 10:21 a.m. Agent Mitry as Mandie recontacted defendant. She wrote: I got kicked off and now Im back. When defendant did not respond immediately she wrote: I have to go soon, so you could at least say something. Hello? Wtf [what the fuck]. He apologized for the delay in responding and Mandie continued: K. Well, I have to go soon, and I dont know if you want to see me tomorrow or what, so just tell me whats up and Ill leave you alone. He wrote that he wanted to see her the next day for sure. Mandie wrote that she had her gymnastic party that night and that it was for both parents and kids; she was not sure she could call him that night. She wrote: [I]f I cant get away from my mom, then what? Mandie continued: Im sorry if Im being too hard, but Im not old enough to do all the stuff you want me to do. Defendant replied: Its okay. I still want you. Its okay. He asked her what time she was going to the park the next day and Mandie responded: You tell me. Defendant suggested 12:30 p.m. and she agreed. They discussed the directions to the park. Defendant asked if she was going to wear a skirt and no underwear. She asked if he was going to bring a condom; he said no. Mandie asked him if he was going to bring her anything special, Like a flower or something just for me. Defendant said, My dick, and then said he would bring her something. He wrote that he couldnt wait to fuck and do all the stuff. Mandie replied: I cant wait to fuck you too. Defendant asked: [s]o whats the first, middle and last thing were going to do? Mandie replied: First say hi and hug. Then your turn. Last thing is say bye and hug. He he. When he pressed her for more specifics, Mandie wrote: Kiss and go down on you and you go down on me, then have sex if thats okay. The session concluded with further assurances that Mandie should still go to the park at 12:30. As a seeming afterthought, Mandie asked: What color is your car? Defendant responded it was a Taurus.

At 11:20 a.m. defendant emailed Mandie: Tomorrow is the day that I get to see you. P.S. I got two favor condoms. One for your p**** and the other one for that nice ass of yours. Lol. Well, got to go. Bye. I cant wait till you suck my dick real good. OMG.

At 7:43 p.m. defendant emailed Mandie to say he was looking for the park that evening. At 8:15 p.m. and 8:59 p.m. defendant emailed Mandie again. He referred to the park and provided the same cell phone number he had given her before.

December 16, 2003

At 8:08 a.m. Agent Mitry as Mandie called defendant on his cell phone and gave him directions to the park. In cooperation with the San Jose Police Department, Agent Mitry went to Marijane Hammon Park, dressed in jeans and a sweatshirt to draw defendants attention to herself, a blonde-haired white female. She saw defendant pull up, get out of his car and walk in her direction. After that, she lost sight of him but heard about defendants location from the police radio in her backpack.

San Jose Police Department Detective Robert Dillon testified that defendant arrived at the park at 12:20 p.m. in a Ford Taurus. He was alone. He parked and sat in his car for three or four minutes making a call on his cell phone. Then defendant got out of his car and entered the park. Detective Dillon was parked 50 feet away. When defendant was 20 feet into the park and heading in the direction of the decoy, Detective Dillon arrested him. Defendant had a MapQuest map of the park in his backpack, and a white teddy bear in the passenger seat of his car.

Defendant was taken to the police department, Mirandized and interviewed. He said he was at the park to meet a friend, a girl named Mandie. He first said the girl was 15; later he said she was around 13 or 14; finally he said she was 13. He said that Mandie asked him to bring a flower, or a gift. He could not get a flower so he brought the teddy bear instead. He said he was meeting Mandie for a sexual purpose. He understood that a sexual relationship with Mandie was against the law; he said you cant do that.

Defendant used the computer at home and at the group home where he worked to contact Mandie. Pursuant to a search warrant, defendants home was searched and his hard drive was confiscated and examined. No files relating to Mandie were found. Two DVD containers were also taken and examined. One was empty, but the cover depicted adults engaged in oral sex. The other contained a DVD of consensual sexual activity between adult men and women.

On cross-examination, Agent Mitry was asked: What sort of safeguards to [sic] you employ to avoid entrapment? She testified: We dont bring up the subject of sex or any kind of getting together first. If the person that were speaking with brings that up and begins to discuss it, then were allowed to continue that conversation, but not escalate it.

The Statutory Rape Count

Melissa Doe had just turned 15 in mid-September 2002 when she met defendant at a party. He said he had just turned 18. Soon they started making out and having dry sex with their clothes on, and by Thanksgiving they had engaged in intercourse. The police contacted her around Christmas and she had no contact with defendant after New Years.

DISCUSSION

Sua Sponte Entrapment Instruction

Defendant argues that the trial court had a sua sponte duty to instruct the jury on the affirmative defense of entrapment. (People v. Barraza (1979) 23 Cal.3d 675 (Barraza); People v. Watson (2000) 22 Cal.4th 220, 222-223 (Watson).) A trial court has a sua sponte duty to instruct on defenses only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) In this context, substantial evidence means  evidence from which a jury composed of reasonable [persons] could have concluded that there was [entrapment] sufficient to negate the requisite criminal intent. (People v. Flannel (1979) 25 Cal.3d 668, 684, superseded by statute on another point as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)

Defendant does not argue that he relied on such a defense, as indeed he did not. He does argue that the record contains substantial evidence that defendant sent Agent Mitry sexually explicit emails and went to meet her at the park because he became romantically involved with her. He also argues that the record contains at least some evidence that Agent Mitry manipulated and cajoled [defendant ] into discussing sex and a possible sexual relationship between them. (Italics added.) We disagree.

In California, the test for entrapment focuses on the police conduct and is objective. Entrapment is established if the law enforcement conduct is likely to induce a normally law-abiding person to commit the offense. (Barraza, supra, 23 Cal.3d at pp. 689-690.) [S]uch a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully. Official conduct that does no more than offer that opportunity to the suspect for example, a decoy program is therefore permissible; but it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime. (Id. at p. 690.) (Watson, supra, 22 Cal.4th at p. 223.) Barraza cited two ways to establish entrapment under the objective test. First, if the actions of the law enforcement agent would generate in a normally law-abiding person a motive for the crime other than ordinary criminal intent, entrapment will be established. (Barraza, at p. 690; Watson, supra, 22 Cal.4th at p. 223.) Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law-abiding person will likewise constitute entrapment. Such conduct would include, for example, a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement. (Barraza, at p. 690.) The court further explained: There will be no entrapment, however, when the official conduct is found to have gone no further than necessary to assure the suspect that he [or she] is not being set up. The police remain free to take reasonable, though restrained, steps to gain the confidence of suspects. A contrary rule would unduly hamper law enforcement; indeed, in the case of many of the so-called victimless crimes, it would tend to limit convictions to only the most gullible offenders. (Id. at p. 690, fn. 4.)

Defendant cites no case in support of his proposition that becoming romantically involved with a supposed 13-year-old girl is a state of mind other than criminal intent. Barraza does notsupport his argument. In Barraza the court stated that an example of police conduct that would produce a non-criminal state of mind would be an appeal by the police that would induce such a person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. (Barraza, supra, 23 Cal.3d at p. 690.) Here, Mandie was nice to defendant, laughed at his jokes, sent him smiley faces, said he was cute and repeatedly told him she was 13, inexperienced and even sexually immature (she had not yet started to menstruate). She also said she was too young for love, to which defendant responded with the example of his own parents. The communications between 13-year-old Mandie and defendant are more easily read as defendants attempt to seduce 13-year-old Mandie by getting her to believe that it would be okay for her to engage in sex acts with him, despite her age, inexperience and physical immaturity, because he loved her. In our view, this was a typical criminal purpose. Even if defendant was sincere, evidence that defendant had a crush on a girl who said she was 13 years, and that he wanted to have oral, anal and vaginal sex with her, did not provide substantial evidence to support entrapment instructions based on the altruism prong of Barraza.

Nor does the record of the communications between Mandie and defendant which we have carefully reviewed and meticulously summarized in the statement of facts provide substantial evidence of entrapment to justify sua sponte instructions under the second prong of Barraza. Mandie never guaranteed that sex with her was not illegal or that the offense would go undetected. Indeed, Mandie several times raised the question of the legality of defendants sexual conduct with her and other underage girls. Defendant dismissed those concerns. Defendant talked about sex first; Mandie repeatedly told him she was 13, and told him she was grounded, made excuses for not being able to see him (the Gymnastics Christmas party) and generally gave him numerous opportunities to extricate himself. The fact that Mandie occasionally talked dirty back to him and proposed the park as the site of their assignation was not, in the context of their entire communication, substantial evidence of entrapment. Such conduct did not make the idea of having sex with a 13 year old unusually attractive to a normally law-abiding person. (Barraza, supra, 23 Cal.3d at p. 690.) On the contrary, [s]ome persons, obviously including defendant, might have found the temptation hard to resist. (Watson, supra, 22 Cal.4th at p. 224.) But just as a person who steals when given the opportunity is an opportunistic thief, not a normally law-abiding person (ibid.), so too a person who tries to seduce a 13 year old who seems to like him is an opportunistic predator, not a normally law-abiding person. Sua sponte entrapment instructions were not required in this case.

Ineffective Assistance of Counsel

Defendant contends that his conviction should be reversed because he was deprived of the effective assistance of counsel. Specifically, defendant claims counsel was ineffective for (1) failing to take advantage of a favorable ruling; and (2) failing to object to prosecutorial misconduct during closing argument.

In order to prevail on a claim of ineffective assistance of counsel, defendant must show both that counsel failed to act in a manner to be expected of a reasonably competent attorney acting as a diligent advocate and that defendant was prejudiced thereby. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Strickland v. Washington (1984) 466 U.S. 668, 684 (Strickland).) In other words, even if counsels actions fall below the threshold of reasonableness, defendant must still demonstrate that counsels actions were prejudicial. (People v. Ledesma, at p. 218.) Therefore, we need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed. (In re Jackson (1992) 3 Cal.4th 578, 604, quoting Strickland,at p. 697, disapproved of on other grounds in In re Sassounian (1995) 9 Cal.4th 535.) A defendant establishes prejudice by demonstrating that without the deficient performance there is a reasonable probability the result would have been more favorable. A defendant must prove prejudice that is a demonstrable reality, not simply speculation. (People v. Williams (1988) 44 Cal.3d 883, 937; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Finally, our Supreme Court has repeatedly stressed that [if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected. [Citations.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

We will address each of defendants alleged instances of ineffective assistance of counsel separately.

Failure to Take Advantage of a Favorable Ruling

The trial court ruled admissible defendants 90-minute taped statement to Detective Dillon. During in limine proceedings, the prosecutor indicated that he wished to introduce defendants admissions that Mandie was 13 and that he used the workplace computer. Defense counsel responded that if any portion of the interview is brought into evidence, then my request would be to play the whole interview. The court denied that request, ruling that Evidence Code section 356 did not require it: So Im going to allow the prosecution to bring out something more specific out about that same area, well go into it, well discuss it, and certainly you can go into anything that specifically relates to the area that he brings out, but I think the law is clear that the entire interview does not necessarily come in just because one or two areas are referred to. I just dont think theres any question about that. This is the favorable ruling defendant argues his attorney failed to exploit later in his cross-examination of Detective Dillon.

On direct examination, the prosecutor asked Detective Dillon:

[Q]: When you were interviewing the defendant, did the defendant say why he was meeting a girl named Mandie?

[A]: Yes, he did.

[Q]: Was it for a sexual purpose?

[A]: Yes, sir.

Defendant argues that this response was not a fair representation of defendants statements on that topic, and that defense counsel was derelict for not introducing, through his cross-examination of Detective Dillon, the following: Detective Dillon asked [defendant] whether he was there to hook up^[[6]] with Mandie. [Defendant] said that he did not think so and that he was there just to meet her. Detective Dillon then asked [defendant] whether Mandie would have thought their meeting was for the purpose of sex. Defendant explained that while [he] and Mandie talked about sex and planned to have sex, [he] did not think [he] was going to do it. [] Detective Dillon asked [defendant] whether he would have gone through with the plan had he not been arrested. [Defendant] said he did not think anything was going to happen because Mandie might not have liked him. [Defendant] also thought he and Mandie were probably going to end up being friends because [defendant] was older and having sex with someone age 13-15 is against the law.

Defendant also argues defense counsel should have introduced these later statements: (1) that he did not think anything was going to happen between him and Mandie; (2) that he thought the meeting would consist of just saying hi; (3) that he was planning not to show up at all because Mandie was 13; and (4) that he decided to go to the meeting because he did not want to stand Mandie up.

Assuming for the sake of argument that the trial court would have permitted defense counsel to introduce these statements in response to Detective Dillons direct testimony, we also assume the court would also have permitted the prosecutor to establish the full context of the statements on re-direct. Thus, the jury would have learned that defendant admitted Mandie probably thought defendant was there to try to hook up with her; that the plan was pretty much to hook up; and even though he didnt think anything was going to happen because she was 13 and he was not that kind of guy, the reason he showed up was that, in his words, he was horny.

Although defendant argues that counsel could not have had a tactical reason for declining to cross-examine Detective Dillon about defendants other statements, we find his arguments unconvincing. It is clear, as defendant concedes, that under the trial courts ruling, defense counsel was well aware he could have argued, probably with some success, for the introduction of at least some of defendants additional statements. Therefore, his decision to abstain from doing so was not the product of ignorance of the law. However, the overall tenor of the interview excerpt quoted by the parties in their briefs is that defendant went to meet Mandie with the plan and the hope of having sex tempered by the expectation of likely disappointment. This did not undermine the prosecutions position that defendant went to meet Mandie for a sexual purpose. Defense counsel may well have decided that defendants responses to Detective Dillons questions were more harmful than helpful to his cause.

However, it is not the place of an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorneys course of conduct. (People v. Wilson (1992) 3 Cal.4th 926, 936.) The cross-examination of witnesses is a matter falling within the discretion of counsel, and rarely provides an adequate basis on appeal for a claim of ineffective assistance of counsel. (People v. Frye (1998) 18 Cal.4th 894, 985.) This record sheds no light on why counsel conducted his cross-examination in the manner he did. Counsel was not asked for an explanation, and defendant has not demonstrated that this is a case where there simply could be no satisfactory explanation. (People v. Wilson, at p. 936.) We therefore reject defendants ineffective assistance claim on this ground.

Failure to Object to Prosecutors Argument

Defendant argues that trial counsel was ineffective for failing to object to the prosecutors remarks, early in his first argument to the jury, about reasonable doubt. This is what the prosecutor said about reasonable doubt, with the parts to which defendant objects highlighted:

Now, our system is a system that I feel very privileged to be a part of and to try and make sure it works fairly. And in our Constitution [it] says, If youre accused of a crime, there are a number of protections for you. And perhaps at the heart of those protections is the presumption of innocence. When youre accused of a crime, your presumed innocent until an agent of the government, in this case, in this courtroom, me, proves the charges beyond a reasonable doubt. Yet theres a practical reality, that almost sacred protection. The defendant need do nothing. Enters a plea of not guilty. And it is true, whether theres lots of evidence or not so much, its as if the defendant said prove it. Someone like me has to prove it, unless youd like your law enforcement arms of the government to throw up their hands and say never mind in the face of strong evidence. So mere denial is not a reasonable doubt. And its been my job to prove to you the elements of the crime, elements that have been created which you have in front of you, Ill review them briefly, I will review them, to be objective, and fair, to cover a range of situations.

Ultimately, of course, the case has to be beyond a reasonable doubt, and theres a definition of reasonable doubt, After considering the entire case, you cannot say with abiding conviction the charges are true. What does that mean, abiding conviction? Are you sure? Are you sure, in this case, that Mr. Whyms tried to send obscene material to a minor in the hopes of seducing her? And if youre not sure, Reasonable doubt is not all possible doubt because everything involving human affairs is open to some possible or imaginary doubt, says the instruction. Reasonable doubt means youre not sure what happened and you have a good reason and you can tell it to your other jurors. Its not about prejudice. Its not about sympathy. Its not about the fact that one officer didnt remember some minor detail or anything. You have a good reason and you can tell your other jurors what that good reason is, and youre not sure that that man, when he said all of those things he said to a person who kept saying she was a 13-year-old, grounded by mom, youre just not sure, you know, I have a good reason. (Italics added.)

Citing People v. Nguyen (1995) 40 Cal.App.4th 28, defendant contends the highlighted portion trivialized the reasonable doubt standard, much in the same way that comments comparing the reasonable doubt standard to changing lanes while driving, or to getting married, trivialize it. In our view, telling the jury it must be sure about the defendants guilt before it convicts him does not trivialize the reasonable doubt standard.

Next, citing Cage v. Louisiana (1990) 498 U.S. 39, defendant argues that the prosecutors comments were the equivalent of the defective instruction in Cage that violated due process by shifting the burden of proof to the defendant. We disagree. First, the arguments of counsel should not be judged as having the same force as an instruction from the court. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21; Boyde v. California (1990) 494 U.S. 370, 384-385.) More importantly, defendant fails to explain how the prosecutors comments implied that defendant had to prove a good and articulable reason for acquittal. In fact, the prosecutor expressly told the jury that the defendant need do nothing.

Citing People v. Light (1996) 44 Cal.App.4th 879 at page 885, defendant also complains that the prosecutor made no attempt to convey that abiding conviction means the jurors belief in the truth of the charges must be long-lasting and deeply felt and by failing to do so, the prosecutors comments lessened the Peoples burden of proof. The prosecutors rhetorical question are you sure the charges are true? may not have been as accurate as Lights definition of abiding conviction, but it did convey the seriousness of the jurys endeavor and did nothing to lessen the prosecutors burden of proof.

In short, none of defendants belated objections to the prosecutors comments withstand analysis. The prosecutors comments did not constitute misconduct and defense counsel was not ineffective for failing to object to them at the time.

Substantial Evidence of Attempt

Next, we consider whether the evidence presented at trial provides substantial evidence that defendant attempted the commission of a lewd and lascivious act with Mandie/Agent Mitry, in violation of sections 288, subdivision (a) and 664. A completed violation of section 288, subdivision (a) requires a touching of a child under the age of 14 with the specific intent of arousing or gratifying the sexual desires of the defendant or the child. An attempted violation of that section requires the specific intent to touch the child with lewd intent and a direct but ineffectual act towards the commission of the act. (CALJIC No. 6.00.)[7] Defendant contends there is no evidence that defendant committed any act beyond mere preparation. He also contends there is no evidence [he] would have committed any lewd and lascivious act. We disagree.

In reviewing a claim of insufficiency of the evidence on appeal, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence [citation]. An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)

Defendant acknowledges that People v. Memro (1985) 38 Cal.3d 658 (Memro) is the seminal decision on the sufficiency of the evidence to support a conviction for attempted violation of section 288. As the Memro court itself acknowledged, none of the various tests used by the courts can possibly distinguish all preparations from all attempts. (Memro, at p. 699.) We evaluate defendants entire course of conduct in light of his confessed intent and his prior history. (Ibid.)  [W]henever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime. (Id. at p. 698; see also People v. Bonner (2000) 80 Cal.App.4th 759, 764 [where the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown]; People v. Anderson (1934) 1 Cal.2d 687, 690.)

In Memro, the defendant invited the victim to his apartment for a Coke, but defendant had in the back of his mind that he would try to take pictures of the boy in the nude. (Memro, supra, 38 Cal.3d at p. 699.) Inside the apartment, the defendant turned on strobe lights and sat down on the bed. The victim stood watching the lights, then announced he was leaving. The defendant became angry and strangled the victim, killing him. On appeal, the issue was whether the defendant committed the murder during the commission or attempted commission of a crime: namely, attempted lewd or lascivious conduct ( 664, 288). The court concluded that the evidence was sufficient to support such a finding. The court first noted in dicta that the simple act of accompanying [the victim] up to appellants apartment probably fell within the zone of preparation.  (Memro, supra, 38 Cal.3d at p. 699.) The court continued: However, appellant went beyond preparation. He ushered the boy into the bedroom to watch the strobe lights and stayed close by. These were steps which furthered his aim of readying [the victim] for a nude photography session which was, in all likelihood, intended to culminate in lewd conduct. These acts, therefore, constituted the actual commencement of his plan and were sufficient to support an attempt. [Citation.] But for [the victims] abrupt decision to leave the apartment, it is likely that these steps would have resulted in a completed violation of section 288. (Ibid.)

Defendant argues that defendants intent was equivocal but, in our view, defendants intent very clear. Although it was Mandie who suggested meeting at a park, rather than at school or at his house, defendant avidly agreed. The emails and instant messaging sessions detailed in the statement of facts attest to defendants unabated intent to pop Mandies cherry and engage in a variety of other sexual acts with her. He asked whether there was a bathroom for them to engage in sex privately; he suggested standing up would be less painful for her; he told Mandie he was bringing two condoms. Given this intent, only slight acts in furtherance of his intent would constitute an attempt. (Memro, supra, 38 Cal.3d at p. 698.)

People v. Reed (1996) 53 Cal.App.4th 389 (Reed) upheld a conviction of attempted lewd acts on similar facts. In Reed, the defendant corresponded with a detective who was posing as a mother of two children. In his correspondence, the defendant described the sexual acts he would perform with the children. The detective and the defendant arranged to meet at a motel. Defendant came to the motel and talked to the detective about what he was going to do. He brought sex toys with him. The detective told him that the children were in an adjoining room. When the defendant entered the adjoining room, he was arrested. On appeal, the defendant claimed that the evidence was insufficient to support his conviction of attempted lewd acts. The court rejected this claim, explaining: His