People v. Bassett CA3

Filed 7/14/23 P. v. Bassett CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C096388
Plaintiff and Respondent, (Super. Ct. No. MAN-CR-FE-
2021-0003820)
v.
CLYNTON BLEAU BASSETT,
Defendant and Appellant.
Defendant Clynton Bleau Bassett answered an online advertisement offering sex
for money, which was posted by Special Agent Allison Reuter with the Department of
Justice as part of a sting operation. Defendant exchanged text messages with Special
Agent Reuter, and then with Special Agent Michael Campbell, both of whom pretended
to be a 13-year-old girl. While defendant initially said he would have to decline the offer
due to her age, he nevertheless asked for photos, received photos of Reuter in return, and
ultimately agreed to meet and pay her for sex. Defendant was arrested when he arrived at
the location set for the meeting with cash, condoms, and a bottle of vodka.
1
A jury convicted defendant of one count of attempted lewd or lascivious conduct
with a child under the age of 14 years (Pen. Code, §§ 664, 288, subd. (a))1 and one count
of contact with a minor with the intent to commit a sexual offense, the latter crime
encompassing an attempt to make such contact as within the statutory definition of the
offense (§ 288.3, subd. (a)). The trial court suspended the imposition of the sentence and
placed defendant on formal probation for a period of four years, subject to various terms
and conditions.
On appeal, defendant contends: (1) the evidence is insufficient to support his
convictions because (A) the photos he received of Special Agent Reuter obviously
depicted an adult woman and not a minor, and (B) the prosecution did not prove he took a
direct but ineffectual step towards committing either offense; (2) the trial court
prejudicially erred and violated defendant’s federal constitutional rights by (A) providing
a bracketed portion of CALCRIM No. 358 telling the jury to view inculpatory statements
made by a defendant with caution unless the statements are in writing or otherwise
recorded, and (B) refusing to instruct the jury on the defense of entrapment; (3) the
cumulative prejudicial impact of the foregoing assertions of error requires reversal; and
(4) a probation condition ordering defendant to seek and maintain employment must be
stricken.
We affirm. As we explain, the evidence is more than sufficient to support
defendant’s convictions. Defendant’s first claim of instructional error is forfeited, and in
any event, manifestly harmless. His second claim of instructional error lacks merit.
There is, therefore, no cumulative prejudice to assess. And the challenged probation
condition is neither unconstitutional nor unreasonable.
1 Undesignated statutory references are to the Penal Code.
2
BACKGROUND
In April 2021, Special Agent Reuter posted an online advertisement offering sex
for money as part of a sting operation designed to find and apprehend people seeking out
sex with underage girls. The advertisement was titled: “NEW new CUTEE n yung ALL
u nEeD dnt Miss Ouut ReDy 2 Play.”2 The advertisement indicated her name was Steph,
she was 21 years old, and was offering the following services: “FS BB BBBJ GFE
GREEK RP PSE !!!!” Reuter testified to the meaning of these abbreviations: “FS, stands
for, ‘full service,’ which includes oral and or penetrative sex. BB, stand[s] for, ‘bare
back,’ which means no condom. BBBJ, means, ‘bare back blow job,’ which means a
blow job without a condom. GFE. Stands for, ‘girlfriend experience,’ which indicates an
experience in which the woman would pretend to be the buyer’s girlfriend and give him
affection and cuddle, that kind of thing. Greek refers to anal sex. RP, stands for ‘role
play.’ PSE stands[] for, ‘porn star experience.’ ” While it was Reuter’s intention to pose
as a juvenile, the website she used to post the advertisement would not allow her to select
an age younger than 21 years. The advertisement also included three photos of Reuter,
which she took of herself in a hotel bathroom. Her face is obscured in each photo, by her
phone in the first two and by a heart emoji in the third. The telephone number listed in
the advertisement was for a decoy phone used by agents working the operation.
Defendant responded to the advertisement at about 12:30 a.m. the next day,
texting the decoy phone: “ ‘You available?’ ”3 Later in the day, Special Agent Reuter
2 All quotations from this advertisement are set forth verbatim, with spellings and
capitalizations as existing in the original; emojis are omitted.
3 Because the testimony regarding the text message exchange between defendant
and Special Agents Reuter and Campbell is easier to read than the text messages
themselves, we quote primarily from the testimony. We have, however, compared the
testimony to the actual messages to ensure the accuracy of the content, if not spelling and
punctuation.
3
responded: “ ‘Hi,’ smiley face. ‘Sorry, baby. Bout to go on fam camping trip. Lol.
Will be in Stockton on Mond,’ as in Monday, ‘for some fun after school.’ Kissie face
emoji.” Defendant replied: “ ‘Okay.’ ”
Because the advertisement received hundreds of responses over the weekend, the
agents working the operation divided up communication with the various interested
parties. Special Agent Campbell was assigned to engage in further communication with
defendant.
At about 7:00 p.m. on Monday, Special Agent Campbell sent defendant a text
message asking: “ ‘Hey baby, you still interested?’ ” Defendant immediately responded:
“ ‘In two hours.’ ” Campbell asked: “ ‘You want FS, baby?’ ” Again, “FS” means
“ ‘full service,’ ” indicating both oral and vaginal sex. Defendant responded: “ ‘How
much?’ ” And, “ ‘What do you look like?’ ” Campbell answered: “ ‘Young and cute.
No hair. You like young. I do $100 for full service. But I do cheaper if you bring
alcohol. Cause I can’t buy yet.’ ” Defendant responded: “ ‘Okay. I can do that. What
do you want?’ ” and then: “ ‘Age don’t matter as long as you’re over 18.’ ” Campbell
answered: “ ‘I like goose,’ ” referring to Grey Goose vodka, “ ‘and I 13. So I need a ride
too, okay baby.’ ” Defendant responded: “ ‘You’re 13?’ ” and then: “ ‘Or 18.’ ”
Campbell answered: “ ‘Yes. Why I charge more. Because 13. What’s problem? You
don’t like girls?’ ”
Notwithstanding this information, defendant texted: “ ‘Send me a pic of yourself,
please.’ ” Defendant then said, in apparent response to the question about whether he
liked girls: “ ‘Not if you’re 13.’ ” Special Agent Campbell responded: “ ‘I’m almost 14,
baby, that okay?’ ” Defendant again asked for a picture: “ ‘Send me a selfie.’ ” He then
said: “ ‘No. Sorry. If you’re 13, I have to pass.’ ” Campbell responded: “ ‘You want
selfie or not?’ ” Defendant answered: “ ‘Send me one.’ ” Campbell offered to send
defendant a photo, but only if he was serious about “$$$$,” meaning paying for sex.
Defendant responded: “ ‘And if you’re that young, I have to pass.’ ” Campbell asked
4
how a picture would change that, to which defendant replied: “ ‘Okay. It doesn’t.
Good-bye.’ ” Campbell responded: “ ‘Your loss.’ ” Defendant apologized: “Sorry.
You are just too young.” Campbell replied: “ ‘Fine.’ W-E, indicating, ‘whatever.’ ”
This could have been the end of the matter. But instead, about a minute later,
defendant sent another text message to the decoy phone: “ ‘Where are you located?’ ”
Special Agent Campbell said the fictional 13-year-old girl was in Lathrop and asked if
defendant was still interested. Defendant again asked for a photo. Campbell sent
defendant a photo of Special Agent Reuter, which was also taken in the hotel bathroom
before the operation began, but was not posted as part of the online advertisement.
Defendant responded that he would text to meet in two hours, asked what motel she was
at, asked her to confirm she was not a cop, and added: “ ‘You are cute!’ ” Campbell
replied: “ ‘No. Are you? Fuck cops,’ with a 100 emoji.” Defendant also confirmed he
was not a cop and said: “ ‘See you in two hours.’ ” Campbell asked: “ ‘You serious
now? I can sneak out tonight. You serious about’ – dollar signs, indicating money, ‘and
alcohol baby?’ ” Defendant answered: “ ‘Yup’ ” and “ ‘I’ll text you around 9:00.’ ”
Campbell again asked defendant to confirm that he was serious, adding: “ ‘Because I got
to sneak out if we do tonight.’ ” Defendant again responded: “ ‘Yup.’ ” Campbell
asked: “ ‘Okay. Baby, can you bring condoms too?’ ” Defendant again answered:
“ ‘Yup.’ ”
Special Agent Campbell and defendant then agreed that defendant would pick up
the fictional child in Lathrop after 9:00 p.m. and text when he was close. Campbell asked
defendant for a photo, “ ‘so I know you’re serious,’ ” prompting defendant to send a
picture of his car, a white Chevy Camaro. Defendant also sent a picture of himself.
Between 8:24 p.m. and 9:20 p.m., Campbell sent three text messages to defendant
indicating that the 13 year old was ready to sneak out whenever he was close. Defendant
responded about 40 minutes later with: “ ‘Be there soon’ ” and, “ ‘Where do I pick you
up?’ ” However, because the operation was ending for the day, Campbell responded:
5
“ ‘Can’t sneak out anymore. Can you do tomorrow instead?’ ” and, “ ‘You took too long,
baby. Can’t get out of house anymore. Was ready before.’ ”
The next morning, Special Agent Campbell texted defendant: “ ‘Hey baby. You
going to be serious today?’ ” Campbell told defendant that school got out at 3:00 p.m.,
adding: “ ‘Hit me when you’re ready for me.’ ” Defendant responded: “ ‘Okay.’ ”
About two hours later, defendant sent another text: “ ‘Where would I pick you up?’ ”
Campbell answered: “ ‘Can you pick me up in Lathrop, baby?’ ” Defendant again
responded: “ ‘Okay.’ ” They again agreed that defendant would pick up the purported
13 year old after she snuck out of her house, this time around 6:00 p.m. Defendant also
asked: “ ‘Can you take a selfie right now and send it to me?’ ” Campbell sent another
photo of Special Agent Reuter, this one a close-up selfie with a flower emoji covering
most of her face. Defendant responded: “ ‘Thanks.’ ”
That evening, at 5:22 p.m., defendant texted the decoy phone: “ ‘Where do you
want me to pick you up?’ ” At 6:06 p.m., he texted: “ ‘Are we doing this?’ ” Special
Agent Campbell responded about a minute later: “ ‘Yes, baby. Just got done with school
and chores and waiting for mom to leave.’ ” Defendant replied: “ ‘Okay’ ” and, “ ‘What
did you want to drink?’ ” Campbell answered: “ ‘I like Grey Goose. Maybe bring
condoms too, if you can.’ ” Defendant responded: “ ‘Okay.’ ” At 6:33 p.m., defendant
texted: “ ‘Can I start driving towards you?’ ” He then indicated he was waiting at a gas
station off of Lathrop Road and Highway 99. At 6:47 p.m., defendant texted:
“ ‘Hello.’ ” At 7:03 p.m., he texted: “ ‘What happened?’ ”
During this time period, Special Agent Campbell and other agents and officers,
including Special Agent Reuter, were selecting a location and getting ready to meet and
arrest defendant. At 7:04 p.m., Campbell responded to defendant’s texts: “ ‘Sneaking
out right now, baby. Hang on, see you soon.’ ” Campbell explained: “ ‘Got in a little
trouble with my mom. But she is leaving now. So it is all good.’ ” Campbell then told
defendant to meet the 13-year-old girl he was portraying at a park near Lathrop High
6
School and provided the address. Defendant responded that he was eight minutes away.
At this point, Campbell handed the decoy phone to Reuter, who would be acting as the
in-person decoy, waiting for defendant at the park, while Campbell and the other officers
waited in a car to make the arrest.
At 7:27 p.m., Special Agent Reuter texted defendant: “ ‘KK baby. I am here by
the flagpole.’ ” Defendant responded: “ ‘Okay’ ” and, “ ‘Almost there honey. I am by
the freeway.’ ” A few minutes later, defendant arrived in his white Camaro. He was
contacted in his car and detained. As officers took defendant into custody, Reuter called
the phone number she and Special Agent Campbell had been texting. The call was
received by defendant’s phone. Inside defendant’s car, officers found $80 in cash, a box
of condoms, and an unopened bottle of Grey Goose vodka.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence is insufficient to support his convictions for
attempted lewd or lascivious conduct with a child under the age of 14 years (§ 288, subd.
(a)) and contact with a minor with the intent to commit a sexual offense (§ 288.3, subd.
(a)). He is mistaken.
“In determining the sufficiency of the evidence to support a conviction, ‘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.’ [Citation.] ‘[T]he court must review the whole record in the
light most favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’
[Citation.] Moreover, ‘ “[a] judgment of conviction will not be set aside for insufficiency
of the evidence to support the jury’s verdict unless it is clearly shown there is no basis on
7
which the evidence can support the conclusion of the jury. The credibility of witnesses
and the weight to be accorded to the evidence are matters to be determined by the trier of
fact. [Citations.]” ’ [Citation.] Reversal of the judgment is not warranted even if we
might have made contrary findings or drawn different inferences, as it is the trier of fact,
not the appellate court, that must be convinced beyond a reasonable doubt. [Citation.]”
(People v. Singh (2011) 198 Cal.App.4th 364, 368.)
Defendant was convicted of attempted lewd or lascivious conduct with a child
under the age of 14 years, which requires proof that “(1) the defendant intended to
commit a lewd [or] lascivious act with a child under 14 years of age, and (2) the
defendant took a direct but ineffectual step toward committing a lewd [or] lascivious act
with a child under 14 years of age.” (People v. Singh, supra, 198 Cal.App.4th at p. 368.)
In turn, the offense of lewd or lascivious conduct “has two elements: ‘ “(a) the touching
of an underage child’s body (b) with a sexual intent.” [Citation.]’ [Citation.]” (People v.
Villagran (2016) 5 Cal.App.5th 880, 890; § 288, subd. (a) [“a person who willfully and
lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or
member thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or the child,
is guilty of a felony”].) Thus, in order to sustain his conviction, there must be substantial
evidence that defendant intended to touch, or cause to be touched (see People v. Austin
(1980) 111 Cal.App.3d 110, 114-115), a child under 14 years of age, with sexual intent,
and took a direct but ineffectual step towards doing so.
Defendant was also convicted of contact with a minor with the intent to commit a
sexual offense. The statutory definition of this offense encompasses an attempt to make
such contact: “Every person who contacts or communicates with a minor, or attempts to
contact or communicate with a minor, who knows or reasonably should know that the
person is a minor, with intent to commit [certain enumerated sex offenses] involving the
minor shall be punished by imprisonment in the state prison for the term prescribed for an
8
attempt to commit the intended offense.” (§ 288.3, subd. (a), italics added.) Thus,
“[s]ection 288.3, subdivision (a) makes an attempt to communicate with a minor a
completed crime.” (People v. Korwin (2019) 36 Cal.App.5th 682, 688 (Korwin).)
Defendant argues the evidence is insufficient to support either conviction because
(A) the photos he received of Special Agent Reuter obviously depicted an adult woman
and not a minor, and (B) the prosecution did not prove he took a direct but ineffectual
step towards committing either offense. We address and reject each argument in turn.
A. Evidence Related to the Fictional Minor’s Age
As defendant correctly observes, both offenses he was convicted of committing
have an age element. As previously indicated, defendant’s attempted lewd conduct
conviction requires proof that he intended a touching of a child under the age of 14 years
with a further sexual intent. His contact with a minor conviction requires proof that he
intended to contact a minor with the further intent to commit an enumerated sex offense
involving that minor. Defendant also candidly acknowledges that neither offense
requires an actual minor victim. (See Korwin, supra, 36 Cal.App.5th at p. 688 [violation
of § 288.3, subd. (a) “does not actually require a minor victim”]; People v. Reed (1996)
53 Cal.App.4th 389, 397 (Reed) [same with respect to attempted violation of § 288, subd.
(a)].)
Here, the evidence is more than sufficient to support a finding that defendant
intended the proscribed act (the touching and the contact) to have been committed upon
or with a minor who was under the age of 14 years. While the online advertisement listed
the age of the fictional “Steph” as 21 years old, Special Agent Campbell quickly
disclosed that the person he was impersonating was a 13-year-old girl. In apparent
response to Campbell’s question, “ ‘What’s problem? You don’t like girls?’ ” defendant
answered, “ ‘Not if you’re 13.’ ” He also twice said he would “ ‘have to pass’ ” on
paying a 13 year old for sex. Defendant nevertheless asked for a photo of the child four
times before Campbell sent him a photo of Special Agent Reuter. After receiving this
9
photo, defendant agreed to pick up the 13-year-old girl in Lathrop after 9:00 p.m. and text
her when he was close so that she could sneak out of her parents’ house. Campbell
repeated three more times that the child would be sneaking out of the house to meet
defendant. This meeting was postponed after 10:00 p.m. because the operation was
ending for the night, but the reason given to defendant was that the child could not
“ ‘sneak out anymore’ ” and defendant “ ‘took too long’ ” to respond. The next day,
defendant again agreed to pick up the 13-year-old girl after she snuck out of her house,
this time around 6:00 p.m. Defendant asked for another photo of the child and received
another photo of Reuter. After 6:00 p.m., in response to defendant’s text message, “ ‘Are
we doing this?’ ” Campbell responded: “ ‘Yes, baby. Just got done with school and
chores and waiting for mom to leave.’ ” It was apparently at this point that defendant
picked up condoms and vodka, at the fictional child’s request. Then, after a delay in
responding to defendant’s text messages, Campbell told defendant that the fictional child
“ ‘[g]ot in a little trouble with my mom,’ ” but was “ ‘[s]neaking out right now.’ ” It was
after this, after several references to the child being 13 years old, and at least seven
references to the child sneaking out of her parent’s house to meet defendant, that
defendant drove to the designated location with the condoms and vodka and $80 to pay
her for sex.
As in Korwin, supra, 36 Cal.App.5th 682, where the defendant was also convicted
of both attempted lewd conduct with a child and contact with a minor with intent to
commit a sex offense, the foregoing evidence provided defendant with “ample reason to
know he was communicating with a minor” even though there was no actual minor
involved. (Id. at p. 690.) There, the defendant repeatedly acknowledged the girl being
impersonated by law enforcement was 13 years old, and after the girl purportedly had a
birthday, the defendant acknowledged she was still a minor before arriving at an agreed-
upon location with condoms. (Id. at pp. 690-691.) Here, too, defendant repeatedly
acknowledged the fictional “Steph” was 13 years old. He was also repeatedly told that
10
she had to sneak out of her parent’s house to meet him for sex, which was consistent with
her being 13 years old. We have no difficulty concluding the evidence is sufficient to
support a finding that defendant intended to contact and engage in lewd conduct with a
minor under the age of 14 years.
Nevertheless, relying on People v. Carvalho (1952) 112 Cal.App.2d 482(Carvalho), defendant argues, “the rule of inherent improbability” requires reversal of his
convictions because the two photos he received of Special Agent Reuter, who was 25
years old, makes it inherently improbable that defendant believed she was a minor, let
alone a 13-year-old girl. We are not persuaded.
In Carvalho, the appellate court reversed a kidnapping conviction as unsupported
by substantial evidence, concluding the testimony of the alleged victim was inherently
improbable for reasons we need not discuss. (Carvalho, supra, 112 Cal.App.2d at
pp. 489-490, 493.) Here, defendant points to no testimony he claims to be inherently
improbable. Instead, he wants this court to conclude, based solely on the two photos he
received of Special Agent Reuter, that it is inherently improbable that he believed he was
meeting a 13-year-old girl for sex, adding “if ever there was a case where a picture was
worth a 1,000 words, this case is it.” For reasons already stated, the jury could have
reasonably concluded, based on the text message exchange with Special Agent Campbell,
that defendant believed he was communicating with a 13-year-old girl and intended to
meet that girl for sex. Whether the photos he received undermined such a conclusion was
a matter for the jury, not this court. “Our function is not to determine the weight of the
evidence but to decide whether upon the face of the evidence it can be held that sufficient
facts could not have been found by the jury to warrant the inference of guilt.” (Carvalho,
at p. 489.) In order to reject a jury’s considered judgment as not “ ‘reasonably’ justified
by the facts and circumstances disclosed by the evidence,” it is not enough to conclude
that the “evidence . . . discloses circumstances that are unusual.” (Ibid.) Instead, we
must be convinced that the inference drawn by the jury “would not seem possible
11
. . . under the circumstances.” (Ibid.) While it might be unusual for a 13-year-old girl to
look like the photos of Reuter, who was 25 years old at the time they were taken, we
cannot conclude that it would not seem possible for defendant to have believed she was
13 years old.
In sum, notwithstanding the photos defendant received, the jury’s finding
regarding his intent to contact and engage in lewd conduct with a minor under the age of
14 years is supported by substantial evidence.
B. Evidence Related to Defendant’s Attempt to Contact and Engage in Lewd
Conduct with a 13-Year-Old Girl
Defendant also argues the evidence is insufficient to support a finding that he took
a direct but ineffectual step towards violating either section 288 or section 288.3. We
disagree.
“ ‘ “An attempt to commit a crime consists of a specific intent to commit the
crime, and a direct but ineffectual act done towards its commission. [Citation.]
Commission of an element of the underlying crime other than formation of intent to do it
is not necessary. [Citation.] Although mere preparation such as planning or mere
intention to commit a crime is insufficient to constitute an attempt, acts which indicate a
certain, unambiguous intent to commit that specific crime, and, in themselves, are an
immediate step in the present execution of the criminal design will be sufficient.
[Citations.]” ’ [Citations.]” (People v. Herman (2002) 97 Cal.App.4th 1369, 1385-1386
(Herman); People v. Dillon (1983) 34 Cal.3d 441, 455 [“when the acts are such that any
rational person would believe a crime is about to be consummated absent an intervening
force, the attempt is underway”].) Moreover, “when ‘ “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.” ’ [Citation.]” (Herman, at p. 1388.)
12
Here, the evidence clearly establishes defendant’s intent to engage in lewd conduct
with a minor under the age of 14 years in violation of section 288, subdivision (a). It also
clearly establishes his intent to contact that minor for that specific purpose (i.e., engaging
in lewd conduct with the minor) in violation of section 288.3, subdivision (a). Indeed,
defendant candidly admits his sexual purpose when he contacted “Steph” and arrived at
the designated location with condoms, vodka, and cash. And we have already explained
that his age-related challenge to his convictions fails. Thus, given the strong evidence of
defendant’s criminal design, slight acts done in furtherance of that design will amount to
a direct but ineffectual step towards the commission of these offenses. (Herman, supra,
97 Cal.App.4th at p. 1388.) That standard is satisfied.
With respect to defendant’s violation of section 288.3, subdivision (a), while he
initially responded to an advertisement that indicated “Steph” was 21 years old, he was
quickly informed that she was actually 13 years old, after which defendant continued
communication and ultimately agreed to meet and pay her for sex. That continued
communication, with the requisite intent, violated the statute. Indeed, the only thing
making defendant’s text message exchange “attempted” communication with a minor
was the fact that there was no actual minor. However, as mentioned, section 288.3,
subdivision (a) makes an attempt to communicate with a minor a completed crime and
does not require an actual minor victim. (Korwin, supra, 36 Cal.App.5th at p. 688.)
Defendant’s challenge to this conviction therefore fails.
With respect to defendant’s attempted violation of section 288, subdivision (a),
again, the jury had strong evidence of defendant’s intent to violate this statute. He agreed
to pick up the fictional 13-year-old girl at a certain location after she snuck out of her
parent’s house. He agreed to bring condoms and vodka. He agreed to pay her for sex.
He then arrived at the designated location to pick up the child with condoms, vodka, and
$80 in cash. Arriving with these items “was clearly a step beyond mere preparation for
the crime, though it was not an element of the crime.” (Reed, supra, 53 Cal.App.4th at
13
p. 399.) We conclude the jury could have reasonably found that had “Steph” been an
actual 13-year-old girl, the crime would have been carried out as planned, and
defendant’s arrival at the meeting place with the aforementioned items “was an
unequivocal first act in carrying out the intended crime.” (Ibid.) Defendant’s challenge
to this conviction also fails.
We finally note that defendant’s appellate briefing discusses Reed at length.
There, as here, while there was no actual minor victim, the defendant arrived at a
designated location, a motel room, with the intent to violate section 288, subdivision (a),
and with items useful for that purpose. (Reed, supra, 53 Cal.App.4th at p. 399.) Those
are the relevant similarities. Defendant, however, focuses on the following differences.
The defendant in Reed intended to molest two fictional children; prior to his arrival at the
motel room, he had communicated with an undercover agent posing as the children’s
mother for a few months; the defendant enthusiastically agreed to meet the children in
order to educate them sexually and bragged about having done so in the past; and he
arrived at the motel with various sex toys, some of which were small in size. (Id. at
pp. 393-395.) Defendant argues he did not communicate with Special Agent Campbell
for nearly as long as the defendant in Reed, his text messages to Campbell did not
“gleefully and repeatedly” talk about having sex with children, and also unlike Reed,
defendant did not arrive at the designated location with “sex toys useful for children of
the expected size.” We accept these factual differences. “[H]owever, the facts of other
cases . . . are not particularly helpful in evaluating the sufficiency of the evidence in this
case.” (People v. Rundle (2008) 43 Cal.4th 76, 140, disapproved on another point in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Simply put, even if we accept defendant’s position that the evidence was stronger
with respect to attempted lewd or lascivious conduct in Reed, this does not mean that
defendant did not also attempt to commit the same crime in this case. It is the evidence
14
in this case that matters. For the foregoing reasons, we conclude the evidence was more
than sufficient to support his convictions.
II
Instructional Error Claims
Defendant also claims the trial court prejudicially erred and violated his federal
constitutional rights by (A) providing a certain bracketed portion of CALCRIM No. 358,
and (B) refusing to instruct the jury on the defense of entrapment. The first claim is
forfeited, and in any event, manifestly harmless; the second lacks merit.
A. Bracketed Portion of CALCRIM No. 358
The challenged portion of CALCRIM No. 358, as given to the jury in this case,
provides: “Consider with caution any statement made by the defendant tending to show
his guilt unless the statement was written or otherwise recorded.” Defendant did not
object to this portion of the instruction. “Failure to object to instructional error forfeits
the issue on appeal unless the error affects defendant’s substantial rights. [Citations.]
The question is whether the error resulted in a miscarriage of justice under People v.
Watson (1956) 46 Cal.2d 818 . . . . [Citation.]” (People v. Anderson (2007)
152 Cal.App.4th 919, 927.) There was no miscarriage of justice.
Although the trial court has a duty to instruct the jury on general principles of law
relevant to the issues raised by the evidence, it has a correlative duty to refrain from
instructing on irrelevant principles of law that might tend to confuse the jury. (People v.
Alexander (2010) 49 Cal.4th 846, 920.) “The purpose of the bracketed language in
CALCRIM No. 358 is to aid the jury in evaluating whether the defendant actually made
the statement. [Citation.] ‘The cautionary instruction is concerned with the reliability
and credibility of the witness who testifies about the defendant’s statements.’ [Citation.]
No such caution is necessary when the statements are recorded.” (People v. Xiong (2020)
54 Cal.App.5th 1046, 1079 (Xiong).)
15
Here, defendant’s statements were recorded in the text message exchange between
himself and Special Agents Reuter and Campbell. Nor was there any suggestion at trial
that defendant did not send these text messages. Thus, there was no need to instruct the
jury to consider these statements with caution and the trial court erred in so instructing
the jury.
The error was not prejudicial, however; nor did it violate defendant’s federal
constitutional rights. Beginning with the latter assertion, defendant argues the bracketed
portion of the instruction “effectively lowered the prosecution’s burden of proof.” We
rejected this argument in Xiong, explaining, “ ‘[t]he language of the cautionary
instruction [in CALCRIM No. 358] does not reference the People’s burden of proof or
the elements of the offense, or in any other way suggest to jurors that the instruction was
meant to create an exception to the rule that all elements of the crime must be proved
beyond a reasonable doubt.’ [Citation.] The cautionary instruction, given under the
circumstances of this case and considered in the context of the instructions as a whole
and the trial record, did not ‘ “so infect[ ] the entire trial that the resulting conviction[s]
violate[ ] due process.” ’ [Citation.] Accordingly, we review this claim of instructional
error under the standard set forth in [People v.] Watson, supra, 46 Cal.2d 818, . . . and
inquire whether it is reasonably probable that, but for the error, the jury would have
reached a result more favorable to defendant.” (Xiong, supra, 54 Cal.App.5th at
pp. 1081-1082; People v. Diaz (2015) 60 Cal.4th 1176, 1188 [“nothing in the wording of
the instructions would suggest to a jury that the cautionary instruction was meant to apply
in lieu of—rather than in addition to—the reasonable doubt instruction”].)
Turning to the state law standard for assessing prejudice, defendant argues he
stated several times during the text message exchange that he had no interest in having
sex with a 13-year-old girl, and only agreed to meet the purported child after receiving
photos of a 25-year-old woman. According to defendant, the bracketed portion of the
instruction “told the jury to not approach the text messages with caution,” which the jury
16
would have understood to mean that it did not need to carefully consider the content of
those messages, including his stated reluctance to meet a 13-year-old girl for sex. No
reasonable juror would have understood the bracketed portion of CALCRIM No. 358 in
such an irrational manner. As we have explained, the cautionary instruction warns the
jury to consider witness testimony concerning a defendant’s inculpatory statements with
“caution,” i.e., wariness or suspicion, specifically about the possibility that the testimony
might not be truthful or accurate. (Xiong, supra, 54 Cal.App.5th at p. 1079.) The
instruction does not instruct the jury to be careless in their appraisal of recorded
statements, as defendant suggests. If anything, the instruction would have benefitted
defendant because he wanted the jury to accept his statements regarding his lack of
interest in having sex with a 13-year-old girl at face value, and the instruction informed
the jury not to view those recorded statements with caution.
In sum, giving the bracketed portion of CALCRIM No. 358 was in error because,
while a correct statement of the law, it was not relevant to the issues raised by the
evidence. However, as our Supreme Court has explained, “giving an irrelevant or
inapplicable instruction is generally ‘ “only a technical error which does not constitute
grounds for reversal.” ’ [Citation.]” (People v. Cross (2008) 45 Cal.4th 58, 67.) That is
the case here. Because defendant’s substantial rights were not affected by this technical
error, defendant’s failure to object at trial forfeits the issue on appeal. (People v.
Anderson, supra, 152 Cal.App.4th at p. 927.) For the same reason, his alternative
assertion of ineffective assistance of counsel also fails. (Strickland v. Washington (1984)
466 U.S. 668, 695 [80 L.Ed.2d 674] [reversal for ineffective assistance of counsel is
warranted only if “there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt”].)
B. Failure to Instruct on Entrapment
Defendant also claims the trial court prejudicially erred and further violated his
constitutional rights by refusing to instruct the jury on the defense of entrapment. Not so.
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“The trial court was required to instruct the . . . jury on the defense of entrapment
if, but only if, substantial evidence supported the defense. [Citations.] 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.)
Our Supreme Court has established two guiding principles for assessing whether
police conduct amounts to entrapment: “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.) The Barraza court
also explained that “while the inquiry must focus primarily on the conduct of the law
enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged
by the effect it would have on a normally law-abiding person situated in the
circumstances of the case at hand. Among the circumstances that may be relevant for this
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purpose, for example, are the transactions preceding the offense, the suspect’s response to
the inducements of the officer, the gravity of the crime, and the difficulty of detecting
instances of its commission.” (Ibid.)
In People v. Fromuth (2016) 2 Cal.App.5th 91 (Fromuth), a case with facts similar
to our own, our colleagues at the Sixth Appellate District held the trial court did not err in
declining to instruct on entrapment. (Id. at p. 112.) There, an officer posted an online
advertisement pretending to be a “ ‘[y]oung cutie looking for a hookup.’ ” (Id. at p. 96.)
He left the age field on the advertisement blank because he intended to pose as a minor
and the online platform would have deleted the advertisement if he listed an age younger
than 18 years. (Ibid.) When the defendant responded to the advertisement, the officer
revealed the fictional girl, Maria, was 15 years old. After the defendant suggested doing
something other than meeting for sex, the officer ceased communication. About an hour
later, the defendant resumed contact through the platform, saying: “ ‘I hope you found
your hookup?’ ” (Id. at p. 97.) The officer indicated that the girl thought she had found
someone, but she would message the defendant again if it fell through, prompting the
defendant to provide his email address for further communication. Several hours later,
the officer emailed the defendant indicating the girl “ ‘got ditched on’ ” and asked if he
was still interested. (Ibid.) The defendant said he was and further messages were
exchanged over the next hour. The officer and the defendant discussed where the
defendant would pick the girl up, where they would have sex, and what sex acts the girl
was willing to do. (Id. at pp. 97-98.) When they were finalizing the details for the
meeting, the defendant asked whether it was too late for the girl to go out, to which the
officer responded: “ ‘No my mom works nights.’ ” (Id. at p. 98.) Additional sexual
details were then discussed. The fictional girl also asked the defendant to bring
protection. The defendant was arrested when he arrived at the designated meeting place
with a condom. (Ibid.)
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The Fromuth court held the foregoing facts did not support instruction on
entrapment, explaining: “[The officer’s] conduct would not have induced a normally
law-abiding man to arrange to have sex with a 15-year-old girl. His conduct did nothing
more than present defendant with the opportunity to commit the offense. ‘[A] person
who steals when given the opportunity is an opportunistic thief, not a normally law-
abiding person.’ [Citation.] Similarly, 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. A normally law-abiding person would not have continued to arrange a
‘hookup’ after [the officer] revealed that ‘Maria’ was a 15-year-old girl. Nothing [the
officer] did thereafter would have ‘ “pressure[d]” ’ a normally law-abiding man to pursue
sex with a 15-year-old girl. An objective examination of [the officer’s] conduct reveals
no basis for an entrapment defense.” (Fromuth, supra, 2 Cal.App.5th at p. 111.)
So too here. Special Agent Campbell did not badger, cajole, importune, or do
anything else that would be likely to induce a normally law-abiding person to attempt to
meet a 13-year-old girl for sex. Campbell merely provided defendant with an opportunity
to do so. To be sure, defendant initially declined the offer. However, as in Fromuth,
Campbell ended the communication at that point, stating: “ ‘Fine.’ W-E, indicating,
‘whatever.’ ” It was defendant who resumed the conversation, asking the fictional 13-
year-old girl: “ ‘Where are you located?’ ” We have already recounted what transpired
after that point in considerable detail. For present purposes, it will suffice to note that,
aside from a lack of harassment, Campbell did not attempt to induce defendant to meet
the fictional 13-year-old girl by appealing to things such as friendship or sympathy. The
“inducement” was simply the prospect of having sex with the child. But that is precisely
the criminal purpose that a normally law-abiding person would not have. Nor did
Campbell do anything that would make the commission of the crime unusually attractive
to a normally law-abiding person. Instead, as in Fromuth, Campbell simply offered an
opportunity to attempt a lewd act with a child.
20
The trial court did not err in declining to instruct on entrapment.
III
Cumulative Prejudice
Defendant’s first instructional error claim is forfeited and the second lacks merit.
There is, therefore, no cumulative prejudice to assess.
IV
Challenged Probation Condition
Finally, defendant challenges a probation condition ordering him to seek and
maintain employment, arguing the condition is both unconstitutional and unreasonable.
We are not persuaded.
In People v. Sanchez (2019) 38 Cal.App.5th 907, our colleagues at the Second
Appellate District rejected a nearly-identical challenge to the same probation condition.
The court explained: “We find no infirmity with this condition of probation. Section
1203.1 specifically authorizes a trial court to ‘require as a condition of probation that the
probationer go to work and earn money . . .’ [Citation.] Not surprisingly, ‘[a]n order that
a criminal defendant seek and maintain gainful employment as a condition of probation is
one commonly imposed.’ [Citations.] The same is true of conditions requiring a
probationer to remain in school and ‘maintain satisfactory grades.’ [Citation.] [¶]
Although defendant’s ability to ‘maintain’ ‘training, schooling or employment’ may not
be entirely within her control, any noncompliance with these requirements due to
‘circumstances beyond . . . her control’ cannot give rise to a probation violation.
[Citation.] That is because courts routinely imply a ‘willfulness’ requirement into
conditions of probation. [Citations.] However, the possibility of noncompliance due to
circumstances beyond a probationer’s control precludes the imposition of the condition of
probation in the first place only where the trial ‘court can say as a matter of law [that]
compliance would be impossible.’ [Citation.] Here, there was no such showing; indeed,
21
defendant’s prior employment constitutes substantial evidence that her compliance is not
impossible.” (Id. at p. 919.)
We agree with this analysis in its entirety. We add that in this case, while
defendant’s counsel stated at sentencing that defendant was not working, counsel added,
“[b]ut that doesn’t mean he won’t be working in the future. Hopefully, he will be
working in the future.” Thus, the record does not establish as a matter of law that seeking
and maintaining employment would be impossible.
Finally, we are also unpersuaded by defendant’s assertion that the condition is
unconstitutionally vague. As our Supreme Court has stated, “a probation condition
should not be invalidated as unconstitutionally vague ‘ “ ‘if any reasonable and practical
construction can be given to its language.’ ” ’ [Citation.]” (People v. Hall (2017)
2 Cal.5th 494, 501.) The challenged condition requires defendant to look for a job and
keep that job to the best of his ability. It is not unconstitutionally vague, notwithstanding
the various hypothetical scenarios posited by defendant in the opening brief concerning
employer conduct that defendant might find to be “deplorable.” We need not specifically
address any of these scenarios because no reasonable person would read the condition to
require defendant to maintain a particular job in the face of intolerable employer
behavior. Such behavior would also be outside defendant’s control. At that point, the
probation condition plainly and unambiguously requires him to look for a different job.
It is not unconstitutionally vague.
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DISPOSITION
The judgment is affirmed.
\s\ ,
McADAM, J.*
We concur:
\s\ ,
RENNER, Acting P. J.
\s\ ,
BOULWARE EURIE, J.
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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