Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-050610-5
Pollak, J.
Defendant Roger Hyder appeals from a judgment convicting him of attempting to commit a lewd act on a child under the age of 14 and attempting to distribute lewd matter to a minor by Internet or electronic mail. The intended victim was an adult private investigator posing as a 12-year-old girl named “Lisa.” Defendant testified that he did not believe that Lisa was under the age of 14 and thought she was an adult role playing as a child. Defendant contends that the trial court erred in instructing the jury that to negate the charged offenses his belief that Lisa was an adult had to be reasonable. He argues that an honest but unreasonable mistake of fact is a defense to the specific intent crimes with which he was charged. We agree, but conclude that the instructional error was harmless.
Factual and Procedural Background
Defendant was charged by information with one count of attempting to commit a lewd act upon a child under the age of 14 (Pen. Code, §§ 664, 288) and three counts of attempting to distribute lewd matter to a minor by Internet or electronic mail (§§ 664, 288.2, subd. (b)). The following evidence was presented at trial:
All further statutory references are to the Penal Code.
Section 288, subdivision (a), provides, “Any 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 and shall be punished by imprisonment in the state prison for three, six, or eight years.”
In November 2004, adult private investigator Chancella Barcellano entered an Internet chat room with the screen name “Lisalisa91.” She was portraying herself as a 12-year-old girl when defendant initiated contact with her. Defendant asked what she looked like and she responded that she was five feet two inches tall and weighed 97 pounds. Barcellano also e-mailed defendant a photograph of a young girl.
Over the next two months, Barcellano acting as Lisa had sexually explicit communications with defendant over the Internet and on the telephone. They also discussed everyday matters that a 12-year-old would discuss, such as doing chores and trick-or-treating on Halloween. On three occasions defendant e-mailed her photographs of his genitals. Barcellano saved their online communications by “cutting and pasting” the text into a word processing document.
On January 20, 2005, Barcellano and defendant made arrangements for defendant to fly from his home in Nevada to meet Lisa at her middle school in Concord, California. At 3:00 p.m., defendant called Lisa as planned and told her he was waiting in a white car at a gas station one block from the school. Defendant was arrested as he waited in the car.
When the police searched defendant’s rental car they found a note with the address of a nearby motel and airline reservations for a return trip to Nevada the following day. The motel confirmed that defendant had a reservation for that evening. Defendant was taken to the police station for questioning, where he admitted to having sexually explicit conversations with Lisa. He also told the officer “[h]e thought she was about 13.”
Defendant testified in his own defense. He admitted being attracted to young girls but denied ever attempting to make physical contact with a young girl. He talked on the Internet to young girls and adult women who role play as young girls to satisfy his attractions. When he agreed to meet Lisa he believed she was an adult role playing as a young girl. He claimed she told him they were role playing and asked him to pretend that he was a pilot. Also, when he saw her screen name, it “sounded familiar because there was a singer back in the eighties called Lisa Lisa.” He did some research and discovered that Lisa Lisa’s last album was released in 1991, so he thought Lisa would have to be old enough to know who the singer was. Defendant testified that Lisa was readily available to chat online weekdays as well as weekends. He acknowledged that he was “[n]ot absolutely certain” that Lisa was an adult, but explained that he intended to confirm his understanding when he met her.
On cross-examination, defendant acknowledged that Lisa’s statement that they were role playing did not appear in the Barcellano transcripts. Defendant claimed that this statement was made over the Internet during a 17-minute gap in the transcript that was “missing.” The transcript shows that just prior to the gap, Lisa gave defendant her cell phone number and wrote that her fingers were getting “lazy again.” In her testimony, Barcellano explained that during the gap they were talking on the telephone and the tape recording of their phone conversation was played for the jury. She denied telling defendant over either the phone or the Internet that they were role playing. Defendant claimed that he could not remember whether he was talking on the phone with Lisa during the missing 17 minutes.
The jury found defendant guilty as charged. He was sentenced to three years eight months in prison. Defendant filed a timely notice of appeal.
Discussion
Defendant argues that the jury was not properly instructed that he was not guilty if he believed, reasonably or unreasonably, that Lisa was an adult. The jury was instructed with a modified version of the standard instruction on mistake of fact (CALCRIM No. 3406) as follows: “The defendant is not guilty of count one or counts two, three, and four if he did not have the intent or mental state required to commit the crime because he reasonably did not know a fact or reasonably and mistakenly believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as he reasonably believed them to be, he did not commit count one or counts two, three, and four. [¶] If you find that the defendant believed that that [sic] ‘Lisa’ was in fact an adult and not under age 14 and if you find that belief was reasonable, he did not have the specific intent or mental state required for count one or counts two, three, and four. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for count one or counts two, three, and four, you must find him not guilty of those crimes.” The bench notes that accompany CALCRIM No. 3406 explain, “If the defendant is charged with a general intent crime, the trial court must instruct with the bracketed language requiring that defendant’s belief be both actual and reasonable. [¶] If the intent at issue is specific criminal intent, do not use the bracketed language requiring the belief to be reasonable.” Defendant contends that because all attempt crimes are specific intent crimes, he was entitled to present a defense based on his honest but unreasonable belief that Lisa was an adult.
“ ‘An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.’ Thus, every attempt requires specific intent to commit the target crime, even if the completed crime does not require specific intent.” (People v. Beck (2005) 126 Cal.App.4th 518, 521.) “A defendant is guilty of an attempt if the evidence shows he had the specific intent to commit the substantive offense and under the circumstances as he believed them to be took actions to consummate the substantive offense, even though circumstances unknown to him made completion of the substantive offense impossible.” (Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 187 (Hatch).)
In Hatch, the defendant was charged with numerous counts of attempted violations of sections 288 and 288.2. The facts are somewhat similar to those in this case. The defendant had exchanged lewd materials over the Internet with a television reporter who was posing as two separate 13-year-old girls. After a few months he attempted to meet one of the girls at a hotel. (Hatch, supra, 80 Cal.App.4th at pp. 177, 180.) The defendant was arrested at the hotel after he attempted to hug the reporter, who was still in character as the young girl. The defendant moved to dismiss the information on the ground that the victims’ ages are a necessary element of sections 288 and 288.2, and because the reporter was over the age of 18 years, the prosecution could not establish the age elements of the offenses charged. He argued that since his subjective belief that the victims were more than 18 years of age would not be a defense to the completed offenses if the victims were in fact under age, his belief that the victims were under 14 years of age was likewise irrelevant when the victims were in fact older. (Id. at p. 185.) The court rejected this argument, explaining that the defendant was “not charged with violating section 288, subdivision (a), or section 288.2, subdivision (a) or (b); instead, he is charged with attempting to violate those sections. A defendant is guilty of an attempt when he harbors a specific intent to commit the target crime and does a direct, although perhaps ineffectual, act toward its commission. [Citation.] [¶] The fact the prosecution cannot show that Hatch’s intended victims were in fact under 14 years of age is irrelevant to his culpability for attempting the charged crimes. If Hatch had the specific intent to complete the target crimes, the impossibility of completing the crimes does not exonerate him from attempting those offenses.” (Id. at pp. 185-186.)
In the present case, defendant argues correctly that he did not have the specific intent to commit the charged offenses if under the circumstances as he perceived them he honestly believed that Lisa was a role-playing adult, whether or not his belief was reasonable. However unreasonable his belief may have been, if he thought Lisa was an adult he did not intend to engage in the proscribed conduct with a child under the age of 14. The trial court’s limitation of this defense to a belief that is reasonable was contrary to the use instructions that accompany the CALCRIM instruction and is unsupported by any authority. (See, e.g., 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 39, p. 371, citing People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 8-11 [defendant’s reasonable or unreasonable good faith belief that property was not stolen is defense to crime of receiving stolen property]; Hatch, supra, 80 Cal.App.4th at p. 187.) Thus, the court erred in instructing the jury that defendant’s belief that Lisa was not under age 14 was a defense only if that belief was objectively reasonable.
The Attorney General’s arguments to the contrary are not persuasive. First, the Attorney General argues that defendant waived this error by failing to object to, or request a modification of, the instruction given. The court, however, has a duty to instruct sua sponte regarding a defense if it appears the defendant is relying on the defense, or if substantial evidence supports such a defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) In light of the instruction given and the arguments at trial, there is no doubt that defendant was relying on the defense that he did not believe Lisa to be under 14 years of age. Contrary to the Attorney General’s argument, the other instructions given did not remedy the erroneous limitation of this defense to a reasonable belief. While the jury was instructed that “the People must prove that: [¶]. . . [¶] [t]he defendant intended to commit a lewd act upon a child under age 14” and that “the defendant intended to send harmful material to a minor to seduce the minor,” it was also instructed that if “defendant believed that that [sic] ‘Lisa’ was in fact an adult and not under age 14 and if you find that belief was reasonable, he did not have the specific intent or mental state required for [the charged offenses].” (Italics added.) The more general instructions cannot be deemed to have corrected the explicit limitation of the defense to a reasonable belief. (Fiatarone v. Masterson (1960) 180 Cal.App.2d 305, 308-309 [where “general instructions are correct and specific instructions addressed to the same point are incorrect, the error cannot be cured”].)
The Attorney General also argues that defendant was not entitled to a mistake of fact instruction because a mistake of fact as to the victim’s age is not a defense to the attempted violation of section 288 and because there was no substantial evidence that defendant had an actual and honest belief that the victim was an adult. The Attorney General is correct that a mistake of fact regarding the victim’s age is not a defense to a violation of section 288. (People v. Olsen (1984) 36 Cal.3d 638, 648-649.) However, as in Hatch, defendant was not charged with violating section 288. Rather, he was charged with attempting to violate section 288, which requires that he have the specific intent to commit a lewd act on a child under age 14.
In People v. Olsen, supra, 36 Cal.3d at pages 648-649, the court held that a mistake of fact as to the victim’s age is not a defense to prosecution under section 288, subdivision (a). The court recognized that “at common law ‘ “ ‘an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the person is indicted an innocent act, has always been held to be a good defense’ ” ’ ” but explained that “the public policy considerations in protecting children under the age of 14 from lewd or lascivious conduct . . . compel a different rule as to section 288.” (Id. at p. 649.) The court found that “[t]he legislative purpose of section 288 would not be served by recognizing a defense of reasonable mistake of age. Thus, one who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril.” (Ibid.) The Attorney General suggests, without citation, that “[t]hese public policy considerations apply equally to the inchoate crime of attempting to commit a lewd and lascivious act on a child under the age of 14.” There is, however, a significant difference between the crime proscribed by section 288, which requires a real victim under the age of 14, and the crime of attempting to commit such an offense, for which the actual age or even existence of a real victim is irrelevant. (Hatch, supra, 80 Cal.App.4th at p. 185; People v. Reed (1996) 53 Cal.App.4th 389, 396-397.) In order to violate section 288, the defendant must have some physical contact with, and opportunity to observe, the victim. In touching the victim, the defendant acts at his or her peril in assessing the age of the person with whom there is contact. In order to commit an attempted violation of section 288, however, there need be no such contact, and thus no opportunity for the defendant to sensorily gauge the age of the intended victim. One cannot say that the defendant acted at his peril in performing the proscribed conduct, because the defendant did not engage in that conduct. One can judge only what the defendant intended to do. The public policy concerns that support the decision in Olsen do not justify modifying the specific intent element when the defendant is charged with attempting to violate section 288.
The Attorney General’s argument that there is no substantial evidence to support the instruction fares no better. While the Attorney General cites substantial evidence discrediting defendant’s belief that Lisa was an adult, the trial court found sufficient evidence to warrant a “reasonable and good faith belief” instruction. If there was sufficient evidence to justify such an instruction, and we agree with the trial court that there was, there necessarily was sufficient evidence to support an instruction covering an unreasonable but good faith belief.
Despite the error in requiring that defendant’s good faith belief be reasonable, the error was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) As the case was argued to the jury, the focus was entirely upon whether defendant in fact believed that Lisa was an adult, and not upon whether such a belief was reasonable. At no point in the closing argument did the prosecutor emphasize to the jury that defendant’s belief had to be reasonable, or argue that if he did believe Lisa was an adult, such a belief was unreasonable. Rather, he argued that “it’s the defendant’s intent that controls,” that there was no mistake of fact, and that defendant “believed he was sending [harmful materials] to a minor.” “[R]egardless of what he may have testified to on the stand about Lisa, . . . [e]very bit of information you have . . . will demonstrate that the defendant believed [Lisa was a] minor[].” Likewise, defendant’s attorney argued, without objection, “The judge told you and it is the case that even though there’s no victim in this case, Mr. Hyder is guilty of an attempt if he thought there was a victim, if he believed Ms. Barcellano to be a minor. But he must have intent to be guilty. You have to believe that he thought Ms. Barcellano was a minor. He would have to have the intent to send lewd messages to a minor, and in that case, the [d]istrict [a]ttorney is charged with proving that he thought she was a minor and—and an attempt to molest a minor. . . . If Roger Hyder thought Ms. Barcellano knew—because she was an adult—if he thought she was an adult, Roger Hyder is not guilty.” As framed by these arguments, the jury was asked to decide whether or not defendant believed Lisa was an adult, and by its verdict must have found that defendant did not have such a genuine belief. The reasonableness of defendant’s belief was never an issue, which undoubtedly accounts for the failure to have requested an instruction concerning a genuine but unreasonable belief.
The Attorney General notes that the California Supreme Court has not determined which harmless error standard applies to a trial court’s failure to instruct on an affirmative defense (People v. Salas (2006) 37 Cal.4th 967, 984), but argues that the error was harmless even assuming the more rigorous Chapman test applies.
The evidence that defendant did not in fact believe Lisa was an adult was overwhelming, leaving little room to speculate that the verdict would have been different if the jury had been instructed that a genuine but unreasonable belief that Lisa was not a minor was also a defense. Although defendant testified in some detail regarding the basis for his belief that Lisa was an adult, there was absolutely no corroborating evidence. Indeed, the evidence was that when originally asked how old he thought Lisa was, he answered “about 13.” He had arranged to meet Lisa in front of what he thought was her middle school. Moreover, defendant’s credibility was severely undermined by the prosecution’s evidence. His testimony about Lisa’s “missing” acknowledgment that they were role playing was contradicted by Barcellano and refuted by the transcript of the Internet messages and the recording of the telephone conversation. His suggestion that Lisa was available to chat during school hours was not supported by the record. The record reflects that most of the Internet chats took place during the late afternoon and early evening. While there may have been others, defendant did not indentify any specific chat that occurred during school hours. In short, there is absolutely no basis to believe that a rational jury could have found that defendant believed Lisa was an adult, even if an unreasonable belief would have sufficed. The instructional error therefore provides no basis for reversal of the judgment. (People v. Johnson (1993) 6 Cal.4th 1, 45-47.)
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.
Section 288.2, subdivision (b) provides, “Every person who, with knowledge that a person is a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by electronic mail, the Internet, as defined in Section 17538 of the Business and Professions Code, or a commercial online service, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. . . . ”