People v. Martinez CA2/5 ( 2023 )

Filed 12/1/23 P. v. Martinez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B321009
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA156076)
v.
FRANCISCO JAVIER
MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Joseph R. Porras, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Eric J. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.
Defendant and appellant Francisco Javier Martinez
(defendant) was convicted of attempting to meet with a minor for
the purpose of engaging in lewd or lascivious behavior. The trial
court sentenced him to two years in prison. In this appeal from
the criminal judgment, we consider challenges to the sufficiency
of the evidence, to asserted instructional errors concerning an
element of the crime and the defense of entrapment, and to the
trial court’s decision to admit evidence of defendant’s age. We
also decide whether the trial court abused its discretion in
denying defendant’s request for probation and sentencing him to
prison.
I. BACKGROUND
A. The Offense Conduct
In June 2021, Deputy Lizbeth Martinez created a profile on
“Skout,” a social media site that requires a user to be 18 or older
in order to create an account.1 Deputy Martinez used the name
“Alejandra” and indicated she was 18 years old. She uploaded
pictures of herself that had been edited with a filter to make her
appear younger.
At around 9:00 a.m. on June 2, 2021, defendant, who was
using a profile with the name Carlos Contreras, sent a message
to “Alejandra.” Defendant’s first message read, “Fuck your sexy
as hell, I’m working tonight in my tow truck but fuck id loved to
eat you out bomb as fuck tonight in it [sic]. It’s always been a
1
At the time, Deputy Martinez was working on the Los
Angeles Regional Human Trafficking Task Force, which used
undercover operations to combat human trafficking and to target
individuals seeking to have sex with underage girls.
2
fantasy I’ve had, wish you’d be down this morning. . . .”2
Defendant sent the same message again that same hour.
Deputy Martinez, continuing to pose as “Alejandra,”
responded within the hour and wrote, “umm im in school lol.”
Defendant then asked “Alejandra” where she goes to school and if
they could meet after school; he also offered to meet her
somewhere nearby. “Alejandra” said she was attending Rancho
High School and taking online classes. She also said she was on
vacation the following Friday. Defendant replied that he too was
on vacation the following Friday, and he offered to get them a
room for Friday night. “Alejandra” asked defendant if he wanted
to text (rather than communicating via Skout). Defendant asked
for her phone number, and she provided it to him.
Defendant sent “Alejandra” a text message shortly before
11:00 a.m. They continued to exchange a few more messages,
and defendant requested a photo of “Alejandra,” which she
declined to send at the time. At around 11:41 a.m., “Alejandra”
said, “the truth im 15 and i have not been ate out lol.” In
response, defendant asked if she wanted to “get ate out” and if
she could meet him after he finished work at 10 p.m. “Alejandra”
responded that was too late because her mom wouldn’t let her.
After discussing other logistics about potentially meeting in
person, defendant said, “I’d love to be your first” and suggested
the orgasm would be so good she would want to “hmu [hit me up]
everytime.”
The two continued to text over the course of the day, with
defendant twice more asking “Alejandra” if she could meet him
2
Deputy Martinez explained at trial that “eat you out” was
slang for oral sex.
3
that day. “Alejandra” declined and explained she had to come up
with a lie so she could go out first.
At around 8:00 p.m., “Alejandra” called defendant to tell
him she couldn’t see him that night, and to verify he was a real
person.3 During the call, “Alejandra” said she didn’t want her
mom to ground her or take her phone away. She also said she
was nervous because she hadn’t received oral sex before and
repeated, as she had told defendant via text, that she was “only
15.” Defendant asked if she’d had sex before, and she replied,
“No. I’m only 15.” “Alejandra” asked how old defendant was, and
he said he was 30. Defendant offered to get them a room, but he
also said they could do it in the truck. After discussing logistics
further, “Alejandra” told defendant she didn’t want to get
pregnant. Defendant responded he didn’t want her to get
pregnant either. “Alejandra” then said she would ask her mom.
As they ended the call, defendant asked her to send him some
pictures.
After the phone call ended, defendant and “Alejandra”
continued texting. Defendant asked “Alejandra” whether her
statement that she didn’t want to get pregnant meant she also
wanted to have sex with him. “Alejandra” responded that she
didn’t know, but she also said she didn’t want it to hurt.
Defendant said he would go slow, but it would hurt a bit the first
time. Defendant also said he wanted to “be the first for
everything [she] experience[d] sexually” and wanted her to
experience “every position” with him.
3
The call was recorded, and the recording was played at
defendant’s later criminal trial.
4
The two continued to text about their potential sexual
encounter into the late evening. Defendant and “Alejandra”
exchanged photos. Defendant asked “Alejandra” if he could see
her vagina. Defendant then told “Alejandra” that if there was no
chance she would see him the next day, he wouldn’t get a room.
“Alejandra” said she didn’t think so, and she was going to ask her
mom the next day. They said goodnight and stopped texting
around 10:11 p.m.
The next day, “Alejandra” sent defendant a “good morning”
text message around 10:00 a.m. Defendant responded
approximately two hours later, and “Alejandra” told him she had
asked her mom if she could go do homework with a friend after
class and her mom said yes. Defendant said he would get a room.
“Alejandra” said she would be ready at around 2:30 p.m., and the
two agreed to meet near an El Pollo Loco. At around 2:13 p.m.,
defendant sent a message saying, “Well everything is set. Fuck I
hope you[‘re] not just playing with me or a cop playing hero.”
“Alejandra” denied being a cop and said she didn’t want any
problems or to get into trouble.
At 2:30 p.m. defendant sent “Alejandra” a text message
asking how long it would be until she arrived. She told him it
would be about 15 minutes. The two continued corresponding via
text until 2:51 p.m., at which point “Alejandra” said she was
talking to her mom and would call him.
Defendant, who was sitting in a car parked near the El
Pollo Loco, was then detained by law enforcement officers.
Detective Sinuhe Villegas of the Los Angeles County Sheriff’s
Department, arrived as defendant was being removed from his
vehicle. Detective Villegas looked inside the vehicle and saw
5
condoms in the driver’s side door and two cell phones—one on the
dashboard and another in the rear cargo area.
Deputy Martinez (who had been posing as “Alejandra”)
arrived at the El Pollo Loco while defendant was being detained.
When Deputy Martinez called the number she had been texting
as “Alejandra,” one of the cell phones in defendant’s vehicle
started ringing and the screen displayed the caller as “Alexandra
Sexy 18.” Officers arrested defendant and he admitted his name
was Francisco Martinez (not Carlos Contreras, the name he used
on Skout) and he was 42 years old.
B. Trial, Including Defendant’s Motion to Exclude
Reference to His Actual Age and His Testimony
During the Defense Case
The Los Angeles County District Attorney charged
defendant with a single count of violating Penal Code section
288.4, subdivision (b).4 At trial on the charge, but before the jury
was empaneled, defendant asked the court to exclude any
reference to his actual age. Defendant argued that under
Evidence Code sections 350 and 352, the evidence was neither
4
The statute makes it a crime for a “person who, motivated
by an unnatural or abnormal sexual interest in children,
arranges a meeting with a minor or a person he or she believes to
be a minor for the purpose of exposing his or her genitals or pubic
or rectal area, having the child expose his or her genitals or pubic
or rectal area, or engaging in lewd or lascivious behavior”; the
statute also provides for increased punishment for a person “who
goes to the arranged meeting place at or about the arranged
time.”
Undesignated statutory references that follow are to the
Penal Code.
6
relevant nor probative and the discrepancy between defendant’s
age and “Alejandra’s” age would cause the jury to be prejudiced
against him. The trial court ruled the evidence was relevant and
explained it did not see the prejudice in admitting evidence of
defendant’s actual age. The trial court also said the defendant
was not entitled to have the jury believe he was 30 years old
when that was not true.
After trial was underway, the prosecution presented
evidence to establish the offense conduct we have already
described. Defendant testified in his own defense during the
defense case (he was the only defense witness).
Defendant admitted he was using Skout to find a sexual
partner. He believed the people he was messaging were adults
because only people 18 years old and over were allowed to create
an account. He claimed that when he messaged “Alejandra” he
believed she was 18 or older. When “Alejandra” stated she was
15 years old, relayed that she was in high school, and said she
needed permission from her mom to get out of the house,
defendant did not question her because he thought she was role
playing and her fantasy was being underage. Defendant was
concerned that if he questioned her about the fantasy or role-
playing, he would ruin it.5 Defendant denied having fantasies
about having sex with a high schooler, having sex with a virgin,
or having sex with somebody for their first time.
5
A prosecution witness testified at trial that Skout is not
advertised as a fantasy type of website, and is not advertised as a
place to go to role-play. There are other, specific websites and
chatrooms used to role-play fantasies and fetishes.
7
C. Jury Instructions, Verdict, and Sentencing
After the presentation of evidence, the trial court
instructed the jury with the parties’ agreed-upon version of
CALCRIM No. 1126. In relevant part, the instruction provided:
“The defendant is charged in Count 1 with going to a meeting
with a minor for a lewd purpose in violation of Penal Code section
288.4(b). [¶] To prove that the defendant is guilty of this crime,
the People must prove that: [¶] 1. The defendant arranged a
meeting with a person he believed to be a minor; [¶] 2. When the
defendant did so, he was motivated by an unnatural or abnormal
sexual interest in children; [¶] 3. At that meeting, the defendant
intended to expose his genitals or pubic or rectal area, or have
the minor expose her genitals or pubic or rectal area, or engage in
lewd or lascivious behavior; [¶] AND [¶] 4. The defendant went
to the arranged meeting place at or about the arranged time.”
Defendant made no request for an instruction to clarify any
of the elements of the section 288.4, subdivision (b) offense. Nor
did he request an instruction on the defense of entrapment.
The jury convicted defendant on the single charge against
him. As described in more detail post, the trial court declined
defendant’s request for a probationary sentence and instead
imposed a low-term sentence of two years in state prison.
II. DISCUSSION
Defendant’s several assignments of error are all
unpersuasive. Substantial evidence supports the jury’s finding
that defendant was motivated by an abnormal or unnatural
interest in children: he continued to proposition “Alejandra” after
she repeatedly told him she was “only 15,” and his messages and
statements (particularly those appearing excited at the prospect
8
of being her “first”) established a substantial motivating factor
for his sexual interest in her was her status as a minor. The trial
court did not have a sua sponte duty to further explain for the
jury the “motivated by an unnatural or abnormal sexual interest
in children” element of the offense because the language of the
CALCRIM pattern instruction was adequate. The trial court did
not have a duty to instruct on the defense of entrapment because
defendant did not rely on the defense and there was no
substantial evidence supporting it. There is no basis in the
appellate record to hold trial counsel was constitutionally
ineffective in not requesting either instruction (i.e., to clarify
“motivated by” or to explain entrapment) because there could be
satisfactory explanations for the decision not to make such a
request. Defendant forfeited any objection to the admission of
evidence of his actual age on the ground he now argues—namely,
that it was improper character evidence. And finally, the trial
court did not abuse its discretion by declining to sentence
defendant to probation instead of prison.
A. Substantial Evidence Supports the Verdict
Section 288.4 requires, among other things, proof that a
person charged with violating the statute was “motivated by an
unnatural or abnormal sexual interest in children.” Precedent
elaborates that “section 288.4 requires that the prohibited
motivation be a substantial factor in the commission of the
prohibited act.” (People v. Fromuth (2016) 2 Cal.App.5th 91,
103.) “‘“The substantial factor standard is a relatively broad one,
requiring only that the contribution of the individual cause be
more than negligible or theoretical.” [Citation.] Thus, “a force
which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing
9
about injury, damage, or loss is not a substantial factor”
[citation], but a very minor force that does cause harm is a
substantial factor [citation].’ [Citation.]” (Id. at 105.)
Substantial evidence supports the jury’s finding on the
“motivated by” element of the offense in this case. (People v.
Westerfield (2019) 6 Cal.5th 632, 713 [on substantial evidence
review, we look at the record in the light most favorable to the
judgment and decide whether there is evidence that is
reasonable, credible, and of solid value such that a reasonable
trier of fact could have found the defendant guilty beyond a
reasonable doubt].) Although “Alejandra’s” Skout profile
indicated she was 18 years old, she informed defendant she was
only 15 years old within just a few hours of defendant’s first
message to her. Then, when “Alejandra” informed defendant she
had not experienced oral sex before, defendant stated he wanted
to be her “first.” When the two spoke on the phone the next day,
“Alejandra” mentioned that she was 15 years old three more
times. Again, rather than ceasing to contact her, defendant
persisted in pursuing a sexual encounter and again stated he
wanted to “be the first for everything” that “Alejandra”
experienced sexually. More generally, defendant’s messages to
“Alejandra” were explicitly focused on his interest in a sexual
encounter with her and they did not engage in any significant
communication on any other topic. The jury could have
reasonably concluded from these communications between the
two that defendant’s belief that “Alejandra” was a minor was a
substantial factor in his continued interest in pursuing her and
not just a “negligible or theoretical” factor.
In arguing to the contrary, defendant emphasizes his
testimony that he was seeking a sexual encounter with an adult
10
female when he logged onto Skout and he believed “Alejandra”
was an adult when they began communicating. He asserts that
he was already infatuated with the adult “Alejandra” after their
brief communications before she disclosed that she was 15 years
old. At best, however, this suggests defendant’s initial response
to “Alejandra” may not have been motivated by an unnatural or
abnormal sexual interest in children (though this does not
grapple with the evidence that a filter was used on “Alejandra’s”
profile picture to make her appear younger). Defendant’s
subsequent actions after learning “Alejandra’s” age, however, do
reflect that abnormal interest, and nothing in the statute
precluded the jury from relying on that evidence to find her
status as a minor was a substantial motivating factor (or from
inferring that “Alejandra’s” young age was defendant’s
motivation all along).6 (Fromuth, supra, 2 Cal.App.5th at 104-
105.)
6
Defendant cites two cases in which a defendant who
solicited sexual contact or responded to a request for sexual
contact was found to be substantially motivated by the minor’s
age, noting that in those cases the defendant had not initially
been informed the minor was an adult. (Fromuth, supra, 2
Cal.App.5th at 96; People v. Reed (1996) 53 Cal.App.4th 389,
393.) Neither of these cases, though, indicates the initial absence
of information about the minor’s age had any impact on the
verdict—and we do not believe it would.
11
B. The Trial Court Was Not Obligated to Give a
Clarifying “Substantial Factor” Instruction Sua
Sponte, Nor Was It Obligated to Instruct on
Entrapment
1. Substantial factor
“In criminal cases, even absent a request, the trial court
must instruct on general principles of law relevant to the issues
raised by the evidence.” (People v. Koontz (2002) 27 Cal.4th 1041,
1085.) Defendant argues the trial court erred by failing to sua
sponte instruct the jury that an unnatural or abnormal sexual
interest in children must be a “substantial factor” motivating a
defendant’s behavior in arranging a meeting with a minor in
violation of section 288.4, subdivision (b). He contends a
“substantial factor” instruction was required both because it was
a principle of law necessary to the jury’s decision and because it
is, “as a practical matter,” an element of the charged offense.
The question of whether a trial court has a sua sponte duty
to give such a “substantial factor” instruction to a jury
considering a section 288.4, subdivision (b) charge was addressed
in Fromuth. (Fromuth, supra, 2 Cal.App.5th at 106.) There, as
here, the defendant argued the court erred by not explaining to
the jury that “motivated by” meant “an unnatural or abnormal
sexual interest in children” was a substantial factor (i.e., a more
than trivial or remote factor) in the commission of the proscribed
conduct. (Id. at 108.) While the Fromuth court agreed the
motivation must be a substantial factor, it disagreed the trial
court was required to provide a specific instruction on this issue.
(Id. at 103, 109.) The Fromuth court observed the instruction the
trial court delivered used the language of the statute, and
explained statutory language “‘“is generally an appropriate and
12
desirable basis for an instruction . . . . [provided] the jury would
have no difficulty in understanding the statute without
guidance . . . .”’” (Id. at 108.) The court concluded that “[b]ecause
‘motivated by’ is a commonly understood phrase that is naturally
understood to require causation, a lay jury would readily
understand that the ‘motivated by’ element required that the
motivation be a cause of defendant’s conduct.” (Id. at 109.)
Accordingly, “[s]ince defendant did not request a substantial
factor instruction and the court had no sua sponte duty to give
such an instruction, the trial court did not err in failing to so
instruct the jury.” (Ibid.)
We agree with the reasoning in Fromuth, which fully
applies here. The only contrary authority defendant cites is
People v. Villanueva (2008) 169 Cal.App.4th 41, which he relies
on for the proposition that a trial court must instruct a jury sua
sponte on principles of law applicable to a case. While this is true
as a general matter, it does not establish the trial court was
required to issue an additional instruction sua sponte here.7
2. Entrapment
A trial court must instruct on “an affirmative
defense[,] . . . even in the absence of a request, ‘if it appears the
defendant is relying on such a defense, or if there is a substantial
evidence supportive of such a defense and the defense is not
inconsistent with the defendant’s theory of the case.’” (People v.
Boyer (2006) 38 Cal.4th 412, 468-469.)
7
Insofar as defendant asserts the “substantial factor”
requirement is an element of the section 288.4, subdivision (b)
offense, the assertion is incorrect.
13
“In California, the test for entrapment focuses on the police
conduct and is objective. Entrapment is established if the law
enforcement conduct is likely to induce a normally law-abiding
person to commit the offense. [Citation.] ‘[S]uch a person would
normally resist the temptation to commit a crime presented by
the simple opportunity to act unlawfully. Official conduct that
does no more than offer that opportunity to the suspect—for
example, a decoy program—is therefore permissible; but it is
impermissible for the police or their agents to pressure the
suspect by overbearing conduct such as badgering, cajoling,
importuning, or other affirmative acts likely to induce a normally
law-abiding person to commit the crime.’ [Citation.]” (People v.
Watson (2000) 22 Cal.4th 220, 222-223.)
There are two guiding principles for determining if law
enforcement conduct is likely to induce a normally law-abiding
person to commit an offense. “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. An example of such
conduct 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. 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.” (People v.
Barraza (1979) 23 Cal.3d 675, 690.)
14
Substantial evidence would not have warranted an
entrapment instruction in this case. The record demonstrates a
scant three hours passed between the first message defendant
sent “Alejandra” on Skout and the text message in which Deputy
Martinez revealed that “Alejandra” was 15 years old. The
majority of the communication between Deputy Martinez and
defendant centered around defendant describing the acts he
wanted to perform to or with “Alejandra” and the logistics of their
potential meeting. Deputy Martinez asked clarifying questions
about some of the sexual contact defendant mentioned and asked
about the size of his penis. Nothing, however, indicates Deputy
Martinez made the crime unusually attractive, induced
defendant to act out of friendship or sympathy, or badgered or
cajoled defendant. And, since Deputy Martinez was undercover
as “Alejandra,” she made no assertions regarding the legality of
the crime or defendant’s likelihood of being detected.
Deputy Martinez’s conduct would not have induced a
normally law-abiding person to arrange to have sex with a 15-
year-old girl. Her conduct did nothing more than present
defendant with the opportunity to commit the offense. “[A]
person who arranges to have sex with a child when given the
opportunity is an opportunistic sexual predator, not a normally
law-abiding person.”8 (Fromuth, supra, 2 Cal.App.5th at 111.)
8
Defendant contends that because there was no evidence he
had a pre-existing sexual interest in minors, criminal intent was
planted in his mind by law enforcement. He suggests that the
period during which he was in contact with “Alejandra” before he
learned her true age created that intent. He also argues that
“Alejandra’s” suggestion that they communicate via text rather
than via Skout encouraged and strengthened his infatuation with
her. Contrary to defendant’s arguments, none of these actions
15
Additionally, there was no indication defendant was
attempting to rely on an entrapment defense at trial.
Defendant’s testimony was solely aimed at another defense: his
claimed belief that “Alejandra” was an adult engaging in a
fantasy of being a 15-year-old. Defendant’s opening and closing
statements likewise focused solely on that defense.
3. Asserted ineffective assistance of counsel for not
requesting either instruction
“When challenging a conviction on grounds of ineffective
assistance, the defendant must demonstrate counsel’s
inadequacy. To satisfy this burden, the defendant must first
show counsel’s performance was deficient, in that it fell below an
objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different . . . . On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively
discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason
and failed to provide one, or (3) there simply could be no
satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986,
1009.)
are of the sort that would give rise to criminal intent in a
normally law abiding citizen. Deputy Martinez, as “Alejandra,”
responded to defendant’s messages and suggested they use an
alternate method of communication. She “did not use any
enticing or overbearing language” in doing so. (Fromuth, supra, 2
Cal.App.5th at 111.)
16
The record in this case does not affirmatively disclose
defendant’s trial attorney had no rational tactical purpose for
declining to request instructions explaining “substantial factor”
or entrapment. There is also no indication in the record that
defendant’s attorney was asked and refused to explain why he
did not request such instructions. Defendant therefore can only
establish deficient performance by counsel if there could be no
satisfactory explanation for not requesting the instructions. As
we now explain, the contrary is true.
As to the “substantial factor” instruction, the trial court
instructed the jury on general principles of law, including the
elements of the crime with which defendant was charged.
Defendant’s trial attorney could reasonably have concluded the
instruction on the elements of section 288.4, which correctly
stated the law, was adequate to address the issue of defendant’s
motivation. Indeed, given that a “substantial factor” is merely
one that is more than trivial or remote, counsel could have
concluded that requesting a clarifying instruction would have
actually been detrimental and closed off otherwise available
avenues for argument. (Fromuth, supra, 2 Cal.App.5th at 109,
fn. 13 [“We note that a substantial factor instruction appears to
offer no potential benefit to a defendant. The plain meaning of
the ‘motivated by’ instruction given by the court required the jury
to find that the conduct was caused by the motivation. A
substantial factor instruction would have told the jury that the
motivation needed to be only a more than trivial factor in causing
the conduct. Such an instruction would appear to benefit the
prosecution rather than the defense”].)
As for entrapment, defendant did not present an
entrapment defense at trial and there was no evidence to support
17
such an instruction. Ineffective assistance of counsel is not
shown by the absence of a request for an instruction that would
have been groundless. (People v. Cunningham (2001) 25 Cal.4th
926, 1037-1038 [no ineffective assistance where counsel did not
seek an instruction to which the defendant was not entitled];
People v. Givan (2015) 233 Cal.App.4th 335, 351, fn. 4; cf. People
v. Bradley (2012) 208 Cal.App.4th 64, 90 [“Failure to raise a
meritless objection is not ineffective assistance of counsel”].)
C. The Trial Court Did Not Err by Admitting Evidence
of Defendant’s Actual Age
Defendant argues the trial court erred by admitting
evidence of his actual age (42 years old) when he represented
himself to “Alejandra” as being younger (30 years old).
Defendant contends his age was a character trait within the
meaning of Evidence Code section 1101, subdivision (b) and was
used to present him in a negative light based on a stereotype of
his character.
Although defendant objected to the admission of this
evidence below, he objected only under Evidence Code sections
350 and 352, arguing it was prejudicial and not probative.
Defendant thus forfeited the objection under Evidence Code
section 1101 because he did not assert the testimony was
inadmissible character evidence. (Evid. Code, § 353, subd. (a);
People v. Valdez (2012) 55 Cal.4th 82, 130 [objections to gang-
related evidence on other grounds were “insufficient to preserve
for appeal the claim that the evidence was inadmissible under
Evidence Code section 1101, subdivision (a)”]; People v. Doolin
(2009) 45 Cal.4th 390, 437 [trial objection that evidence “was
irrelevant and unduly prejudicial under Evidence Code section
18
352” was insufficient to preserve for appeal claim under section
1101 of the Evidence Code].)
Defendant’s opening brief does at one point state, however,
that the risk of undue prejudice from the admission of his actual
age was great while any probative value was nonexistent because
it was factually irrelevant. Charitably reading this as a
challenge to the trial court’s Evidence Code section 352 ruling,
that challenge still fails.
The evidence of defendant’s actual age was relevant to the
case: defendant’s mendacity about his age was relevant to his
credibility. It was also relevant to his understanding that
someone using Skout could misrepresent their age—and
therefore relevant to his assertion that he relied on “Alejandra’s”
age on her Skout profile. The evidence of defendant’s actual age
also was not outweighed by undue prejudice. The fact that
defendant was a 42-year-old man seeking to meet a 15-year-old
girl for sex rather than a 30-year-old man doing the same was not
likely to “‘evoke an [appreciably different] emotional bias against
the defendant as an individual.’” (People v. Karis (1988) 46
Cal.3d 612, 638.) We therefore hold the trial court’s Evidence
Code section 352 ruling was not an abuse of discretion. (People v.
Williams (1997) 16 Cal.4th 153, 213 [deferential abuse of
discretion review applies to evidentiary rulings.)
D. The Trial Court Did Not Abuse Its Discretion in
Declining to Sentence Defendant to Probation
1. Additional background
Defendant’s pre-conviction probation report revealed
defendant had a prior felony conviction from the state of
Oklahoma in January 2006 for possession of a controlled
19
substance with intent to sell. He was sentenced to ten years
state supervision, with four years in prison and six years
suspended. He also had prior misdemeanor convictions for
driving on a suspended license.
As a circumstance in aggravation, the probation office
concluded the manner in which the crime in this case was carried
out indicated planning, sophistication, or professionalism. As a
circumstance in mitigation, the probation office stated defendant
had an insignificant record of criminal conduct, considering the
recency and frequency of prior crimes.
The probation office opined in pertinent part as follows:
“The defendant’s actions were without regard for the age of the
victim, the victim’s wellbeing[,] or the consequences for himself.
Although the defendant does not have a significant criminal
background, it does not negate the severity of his criminal
behavior. Due to the significance of the crime, the undersigned
deputy respectfully recommends the defendant be sentenced to
state prison.”
At the sentencing hearing, defendant requested the court
sentence him to probation rather than prison. Defendant argued
his criminal record was insignificant and he had performed
satisfactorily on supervision following his conviction in
Oklahoma. Defendant also argued there was “some willing
participation” by the ostensible victim in this case. Finally,
defendant represented he grew up without a father figure in his
life because both his biological father and his mother’s
subsequent partner abandoned the family by the time he was
four years old. Defendant’s mother worked constantly to provide
for her children, leaving defendant and his sibling with
insufficient supervision.
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The trial court declined to impose a probationary sentence.
The court stated defendant’s behavior in the case was predatory
behavior of the sort that children do not see coming. The court
also stated this was not an offense of the type where it wanted to
put defendant on probation and hope for the best. Instead, the
court viewed defendant’s sentence as punishment meant to keep
him off the street for a period of time. The court did
acknowledge, though, that defendant’s prior conviction for a
drug-related offense in 2006 tended to lean toward being a factor
in mitigation because defendant had only one felony conviction in
15 years. The court determined the low term of two years in
prison was appropriate in light of the mitigating factors and
defendant’s lack of prior offenses of this type.
2. Analysis
“Probation is generally reserved for convicted criminals
whose conditional release into society poses minimal risk to
public safety and promotes rehabilitation.” (People v. Carbajal
(1995) 10 Cal.4th 1114, 1120.) The Rules of Court enumerate
criteria affecting the decision of whether to grant probation and
divide them between facts relating to the crime and facts relating
to the defendant. (Cal. Rules of Court, rule 4.414.)
Facts regarding the crime include the seriousness and
circumstances of the crime, the vulnerability of the victim,
whether the defendant was an active participant, and whether
the crime was committed because of an unusual circumstance
that is unlikely to recur. (Cal. Rules of Court, rule 4.414(a).)
Facts regarding the defendant include any prior record of
criminal conduct, whether the defendant is remorseful, and the
likelihood that the defendant will be a danger to others if not
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imprisoned. (Cal. Rules of Court, rule 4.414(b).) A trial court is
also permitted to consider factors not listed in rule 4.414 so long
as those factors are reasonably related to the decision. (Cal.
Rules of Court, rule 4.408(a).)
“A trial court has broad discretion in determining whether
or not to grant probation. In reviewing that determination it is
not our function to substitute our judgment for that of the trial
court. Our function is to determine whether the trial court’s
order granting probation is arbitrary or capricious or exceeds the
bounds of reason considering all the facts and circumstances.”
(People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)
The considerations respecting discretionary sentencing choices
that are identified in the Rules of Court “will be deemed to have
been considered unless the record affirmatively reflects
otherwise.” (Cal. Rules of Court, rule 4.409.)
The trial court’s decision to deny defendant probation—a
decision that was explained by the court at some length during
the sentencing hearing and that is consistent with the
recommendation of the probation office—is supported by the
record and not an abuse of discretion. “Alejandra’s” age
established she was vulnerable. Her communications with
defendant underscored her vulnerability and naivete.
Defendant’s actions required planning, as he attempted to
arrange a meeting with “Alejandra” over the course of two days.
Defendant was an active participant in the crime, as he
repeatedly asked “Alejandra” if she was available to meet with
him so they could engage in sexual conduct either in his truck or
in a hotel room. In light of all the facts, the trial court considered
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defendant’s behavior “predatory,” and this was well within the
bounds of reason.9
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
9
Defendant asserts the trial court abused its discretion
because it did not cite a single aggravating factor in making its
decision. A trial court, however, is permitted—but not required—
to consider factors in aggravation. (Cal. Rules of Court Rule
4.414(c).) Moreover, though the court did not recount factors in
aggravation on the record, the probation officer’s report did
identify a factor in aggravation.
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