Charles M. Sevilla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06HF0372) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Charles M. Sevilla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
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This case is before us for a second time. Previously, we affirmed appellant Stephen Deck's conviction for attempting to commit a lewd act on a child (Pen. Code, § 288, subd. (a); all further statutory citations are to the Penal Code unless otherwise stated). In our opinion, we concluded the prosecutor's misstatements about the law of attempt were harmless because the trial court correctly instructed the jury on the law. (People v. Deck (May 24, 2011, G043434) [nonpub. opn.].) The district court dismissed Deck's petition for federal habeas relief, but on September 29, 2014, the Ninth Circuit Court of Appeals found the prosecutorial error prejudicial and instructed the district court to grant the writ of habeas corpus unless the State granted a new trial to Deck within a reasonable time. (Deck v. Jenkins (9th Cir. 2014) 768 F.3d 1015.) On February 9, 2016, the Ninth Circuit denied the Attorney General's petition for rehearing and rehearing en banc.
Following retrial, a jury found Deck guilty of attempting to commit a lewd act on a child. The trial court reimposed the same five-year probation term Deck received after his first trial, with credit for serving one year in county jail.
Deck contends the trial court erred in denying his motion to suppress certain statements he made to a police officer during the search of his residence. We conclude there was no error because the statements were not elicited during a custodial interrogation.
Deck also raises several claims of instructional error. He contends the attempt instructions unduly expanded the temporal scope of an attempt because the jury could have misapplied the instructions to convict him for acts that occurred several days before the attempt. As explained below, we conclude there was no reasonable likelihood the jury misapplied the instructions in the manner suggested. Deck also contends the trial court erred in denying a proposed pinpoint instruction, but we find no error because the pinpoint instruction was duplicative and potentially confusing. Finally, he contends a unanimity instruction was required because the prosecutor argued several overt acts constituted the attempt. We conclude no unanimity instruction was required because the evidence showed only a single attempt. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Perverted Justice is a nonprofit corporation that uses trained volunteers to act as child decoys while participating in online conversations with adults who seek to arrange sexual liaisons with minors. Once an adult contacts a decoy online, raises the topic of sex and attempts to arrange a meeting with the fictitious minor, Perverted Justice provides law enforcement its computer logs or transcripts of the online conversations for further investigation.
In February 2006, the Laguna Beach Police Department worked with Perverted Justice volunteers on a sting operation to identify and arrest adults using the Internet to meet minors for sex. The operation followed a set protocol. After online conversations confirm the adult's intent, the decoys arrange a meeting between the adult and fictitious minor at an apartment in Laguna Beach. Perverted Justice volunteers arrange at least one phone conversation before meeting the adult to confirm the adult's identity. Police officers would then arrest the adult when he arrived at the apartment.
Carolyn Graham, a Perverted Justice volunteer, acted as a decoy for the sting operation. She created online profiles on Yahoo! and MySpace for a fictitious 13-year-old girl named "Amy." In creating the profiles, Graham used an actual 13-year-old girl's photograph taken from a database of preapproved minors. She used the Yahoo! screen name "Ima_beangirl2."
On February 12, 2006, Deck used the screen name "South_Calif_46M" to contact "Ima_beangirl2" in a Yahoo! chat room. He sent Graham a message saying, "Hi, Bean! Older for younger here." When Graham responded, the two proceeded to chat online privately.
During this initial conversation, Graham confirmed Deck realized her age by asking, "You know, I am 13?" Deck responded, "Yeah," and explained he reviewed "Amy's" Yahoo! and MySpace profiles. The two exchanged their first names and Deck sent Graham a photo of himself. He asked if she liked "older guys" and described himself as "available and looking." Deck explained dating would be "kinda hard though with the age difference" because he thought Graham's "mom would [not] like it much." Deck later stated: "I'd love to date you."
Deck suggested they could meet after school and get some ice cream or go for a walk on the beach. Deck also asked Graham whether her mother would be working the upcoming weekend, and proposed meeting in a public place "where it is safe" so Graham would feel more "comfortable." When Graham expressed concern someone might see them together in public, Deck suggested she tell anyone who saw them together he was her father. He volunteered he "wish[ed] he was your daddy" and "just like[d] that daughter-daddy thing."
Throughout the conversation, Deck referred to Graham as "hot" or a "hottie," and described her online profile picture as "sexy" and "a little slutty." Deck also told Graham he "loved [her] makeup" and thought she had "beautiful lips." They ended this initial conversation by exchanging virtual "hugs and kisses."
Following their initial conversation, Deck and Graham chatted online during five of the next six days. During the first of these conversations, Deck again asked Graham if her mother was working the upcoming weekend. When Graham stated her mother would be working, he suggested meeting on the upcoming Saturday. Deck stated they would go shopping at Fashion Island Mall and "holding each other, [with] passionate kisses, touching and caressing one another . . . ." He confessed he would "love to hold you and kiss you." When Graham stated Deck should bring some pie, Deck made a reference to oral sex, saying, "hehehe. I think you have all the pie I want to eat! LOL." Graham responded that she had never been given oral sex, and Deck stated, "No? I bet you'd really love it . . . I mean REALLY love it." During the next few chats, Deck reiterated, "I want to kiss you so bad," and "I need your hugs."
On the day of their planned meeting, Deck and Graham chatted online several times. He told her he had a sore throat and might be unable to meet that day, but said, "I still love you." He asked for "Amy's" address so he could "check it out on Map Quest." Graham gave him the address of the apartment used for the sting operation.
Later in the day, the two conversed online again. Deck professed he really wanted to see "Amy," but did not feel well. Nonetheless, he promised to stop by her apartment "just [to] say hi" and promised to bring a piece of pie. He provided Graham a phone number and suggested she call him collect so the number would not appear on her mother's phone bill. Sara Oliver, another Perverted Justice volunteer, phoned Deck at 6:13 p.m. Deck told Oliver the drive from his house would take about an hour and asked "Amy" to meet him in front of her apartment complex. Deck explained he would "hate to walk into an apartment where I don't know — really know who's there" and he wanted to "make sure if it's real and you're there . . . ."
After the phone call, Deck and Graham resumed their chat online. He explained he still felt ill and asked to postpone their meeting until one day after school. When Graham explained she could not meet after school because she carpooled with another student, Deck asked to meet her in a public place close to her apartment. They finally agreed on a small park across the street from "Amy's" apartment complex. Before signing off his computer, Deck added, "Remember I am sick so no kissing or nothing. Just bringing you your pie." He stressed they would "hang out" and, if they liked each other, they would go out as "boyfriend and girlfriend" on another weekend when he felt better.
Deck made the 45 mile drive from his residence to "Amy's" apartment, arriving around 8:30 p.m. He parked in the apartment complex's parking lot and walked to the park for his rendezvous with "Amy." Spotting a female sitting at a picnic table in the park, Deck approached and greeted her as "Amy." After she confirmed Deck was "Steve," the police arrested him.
Investigators searched Deck and found a digital camera and the piece of pie he promised to bring "Amy." They also searched Deck's car, where they found a map of "Amy's" apartment and six packaged condoms past the listed expiration date. After he was booked, Deck was released on bail and went home.
The following morning Detective Darin Lenyi and other investigators searched Deck's residence. Deck, a California Highway Patrol officer, was present and told Lenyi he thought there would be "intent issues" with the case and it would be tough to convict a law enforcement officer in Orange County.
Investigators seized Deck's computer and found partial chat logs of Deck's online conversations with Graham. His internet browser history showed he visited a website for people interested in "daughter-daddy" relationships a few hours before he met "Amy." Deck's computer also had full logs of November 2005 chats he had with two other persons who identified as 13-year-old girls — Allison and Kirstin. These logs revealed Deck's online chats with these girls were similar to the chats he had with Graham. He made references to these girls being "hot" and "sexy" and he discussed sexual acts with them. Deck also attempted to arrange meetings with the girls.
A. The Trial Court Properly Denied the Motion to Suppress
Before trial, defense counsel moved to suppress Deck's statements to Detective Lenyi during the search of his home, arguing they were obtained in violation of Miranda. The trial court denied the motion after finding that Deck had not invoked his right to counsel and he was not in custody when he spoke to Lenyi. Deck challenges both findings. In reviewing the trial court's ruling on a motion to suppress, we defer to the trial court's findings of fact, both express and implied, if supported by substantial evidence, but independently apply the pertinent legal principles to those facts to determine whether the motion should have been granted. (People v. Carter (2005) 36 Cal.4th 1114, 1140.)
Miranda v. Arizona (1966) 384 U.S. 436.
1. Factual Background
At the hearing on Deck's suppression motion, Lenyi testified that after Deck was arrested, he read Deck his Miranda rights and Deck invoked his right to remain silent. The transcript of the rights advisal reflects that after Lenyi read the Miranda advisements, Deck stated "I don't wish to waive my rights." When asked whether he wanted to speak with Lenyi, Deck responded, "No."
Investigator Wiseman testified that, on February 18, 2006, after Deck was arrested, he and other officers went to Deck's home to "secure it for a search warrant." When Deck arrived at his residence early the next morning after being released from police custody, Wiseman "told [Deck], he was not under arrest. He was free to leave." At around 7:30 a.m., Lenyi arrived with the search warrant. Deck, who was lying on his couch, was not handcuffed or restrained while the officers conducted the search.
Lenyi, who was afraid Deck might harm himself after the officers left, asked Deck, "when we leave, are you going to be okay? Is there anyone that you can talk to?" Deck expressed concern about retaining his employment with the California Highway Patrol and talked about retirement. He volunteered it was difficult to convict a law enforcement official in Orange County. He also said there might be "intent issues" based on the sting operation.
Lenyi informed Deck they were going to seize Deck's computer but Deck did not have anything to worry about unless investigators found something incriminating. Deck replied, "Well, there might be some logs that were deleted six months or a year ago," referring to girls who had sent him naked pictures of themselves. Lenyi said, "[Y]ou don't have anything - you shouldn't worry, unless you have something to worry about, about what's on your computer." Deck responded, "Well, there might be some pictures of naked girls" or "pictures of girls who are naked, who sent those pictures to me." Lenyi replied, "It wouldn't be a problem, as long as they are not underage." Deck said, "Well, they weren't underage" or "I don't believe they were underage."
The trial court denied the suppression motion, explaining Deck invoked his right to silence, not his right to an attorney, when given Miranda warnings after his arrest and while in custody. The court found Deck's comments about difficulty convicting law enforcement officers and problems with intent were volunteered and therefore not made in response to any interrogation. But the court found Deck did not volunteer statements about what was on the computer because these comments were elicited after the "functional equivalent of an interrogation." The court, however, did not suppress those statements because it found Deck was not in custody at the time.
Deck's statements about the contents on his computer were not introduced at trial.
Under Miranda, statements obtained during custodial interrogation can be used at trial only if law enforcement gave the defendant certain advisements. (Miranda, supra, 384 U.S. at p. 444.) "In determining whether a person is in custody . . . , the initial step is to ascertain whether, in light of 'the objective circumstances of the interrogation,' [citation], a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" (Howes v. Fields (2012) 565 U.S. 499, 509 (Howes).) "Relevant factors include the location of the questioning, [citation], its duration, [citation], statements made during the interview, [citations], the presence or absence of physical restraints during the questioning, [citation], and the release of the interviewee at the end of the questioning, [citation]." (Ibid.) However, "[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda. We have 'decline[d] to accord talismanic power' to the freedom-of-movement inquiry, [citation], and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Ibid.)
Once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be interrogated regarding any offense unless counsel is present. (McNeil v. Wisconsin (1991) 501 U.S. 171, 177, citing Edwards v. Arizona (1981) 451 U.S. 477, 484 (Edwards).) Whether a suspect has actually invoked his right to counsel is an objective inquiry. (Davis v. United States (1994) 512 U.S. 452, 458.) A suspect must unambiguously request counsel, that is, "he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Id. at p. 459.) "In every case involving Edwards, the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress. Now, in cases where there is an alleged break in custody, they simply have to repeat the inquiry for the time between the initial invocation and reinterrogation. In most cases, that determination will be easy. And when it is determined that the defendant pleading Edwards has been out of custody for two weeks before the contested interrogation, the court is spared the fact-intensive inquiry into whether he ever, anywhere, asserted his Miranda right to counsel." (Maryland v. Shatzer (2010) 559 U.S. 98, 111-112 (Shatzer).)
Here, the trial court determined Deck had not invoked his Miranda right to counsel. The record, however, shows Deck told the arresting officer, "I don't wish to waive my rights." Those rights include the right to counsel. Deck's statement therefore constituted an unambiguous invocation of his Miranda right to counsel. Nevertheless, the initial invocation does not resolve whether his later statements to Lenyi during the police search of his home were elicited improperly. Rather, because there was a break in custody that did not last more than 14 days, we must determine whether those statements were obtained during a second custodial interrogation. (Shatzer, supra, 559 U.S. at p. 111.)
When Lenyi asked Deck about his well-being once the other officers left, the questioning occurred in Deck's living room while Deck was lying on his couch. (Cf. U.S. v. Craighead (9th Cir. 2008) 539 F.3d 1073, 1086 (Craighead) [suspect was escorted to a back storage room and the door was closed behind him].) The questioning was brief, consisting of four statements by Lenyi. Deck was not handcuffed or physically restrained. Wiseman had informed Deck he was not under arrest and therefore Deck was free to leave. Nothing suggests Wiseman's statement to Deck lacked credibility. (Cf. Craighead, at p. 1088 [presence of agents from three different law enforcement agencies left suspect with doubt as to whether officer had the authority to pronounce him free to leave].) Although Deck was not free to walk about his home unescorted, this constraint on his freedom of movement, by itself, did not amount to custody. (Howes, supra, 565 U.S. at p. 509.) "[W]hen law enforcement agents conduct an in-home interrogation while conducting a lawful search of the home, physical control of the suspect will be necessary to preserve evidence and protect the safety of the agents." (Craighead, supra, 539 F.3d at p. 1086.) Deck thus was not in custody when Lenyi questioned him. The trial court therefore properly denied Deck's motion to suppress. B. There Is No Reasonable Likelihood the Jury Misapplied the Attempt Instructions
Citing Shatzer, supra, 559 U.S. 98, and People v. Bridgeford (2015) 241 Cal.App.4th 887 (Bridgeford), Deck contends even a noncustodial interrogation would violate Edwards. In support, Deck quotes Bridgeford's holding that "appellant's second interview was conducted in violation of the Edwards rule, as interpreted by Shatzer, when the second interview occurred only hours after appellant invoked his right to counsel and was released from custody." (Bridgeford, 241 Cal.App.4th at p. 902, italics added.) Deck misreads Shatzer and Bridgeford.
In Shatzer, the U.S. Supreme Court created a breakincustody exception to the Edwards rule, and established a brightline rule that there is no Edwards violation where the breakincustody period is 14 days or more. (See Shatzer, supra, 559 U.S. at pp. 108111.) The Supreme Court never suggested there can be an Edwards violation if the second interrogation is noncustodial. Rather, it affirmed that the "only logical endpoint of Edwards disability is termination of Miranda custody and any of its lingering effects. Without that limitation—and barring some purely arbitrary time limit—every Edwards prohibition of custodial interrogation of a particular suspect would be eternal." (Id. at pp. 108109, italics added and footnote omitted.) As noted above, the Court instructed that "[i]n every case involving Edwards, the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress." (Id. at p. 111, italics added.) Thus, there cannot be an Edwards violation if the second interrogation is noncustodial. Because Bridgeford, supra, 241 Cal.App.4th 887, merely applied Shatzer, its holding cannot be interpreted to the contrary. Additionally, Bridgeford is factually distinguishable because the second interrogation there was custodial. (See Bridgeford, supra, 241 Cal.App.4th at p. 899 [trial court determined appellant was out of custody between the first and second interviews, both of which occurred at the sheriff's substation, for a period no less than two hours and no more than three and a half hours].) Thus, neither Shatzer nor Bridgeford supports Deck's contention that the Edwards rule applies to noncustodial interrogations.
Moreover, the prosecution introduced only Deck's statements following Lenyi's initial questions about Deck's wellbeing after the police left. These questions were not prohibited by Miranda because they were not reasonably calculated to elicit an incriminating statement. (See Rhode Island v. Innis (1980) 446 U.S. 291, 301 ["'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect"].) The absence of an interrogation seeking an incriminating response constitutes a separate and independent ground for the trial court to deny Deck's motion to suppress.
Deck contends the attempt instructions unduly expanded the temporal scope of an attempt, "allow[ing] a conviction based on a speculative future intent/attempt which could have occurred sometime on the 19th or reasonably close to that date." We independently review whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Where "the claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation," "the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." (Boyde v. California (1990) 494 U.S. 370, 380.)
1. Relevant background
The information charged Deck with a single count of attempted lewd act with a child under 14 years old "on or about" February 18, 2006. Before trial, the parties discussed the temporal requirement for an attempt crime. The trial court expressed concern that instructing the jury the proposed meeting with "Amy" occurred "on or about" February 18, 2006, would preclude an attempt charge if the proposed meeting did not occur until past midnight. To address the court's concern, defense counsel suggested the court could modify the instruction to state "on 2/18 or 2/19," and the prosecutor and the court agreed with this suggestion. Later, during the trial, defense counsel asked the court to "reconsider . . . adding the 19th" to the instructions because "then I think it expands it beyond the time and place when he got arrested." The prosecutor noted Deck had talked about watching television with "Amy" so the lewd act could have occurred past midnight. The trial court did not make a ruling on the instructions.
Toward the end of trial, defense counsel asked the trial court to modify the attempt instruction (CALCRIM No. 460) to state the prosecution must prove the defendant intended to commit a lewd act on a child under 14 "during the proposed February 18th meeting." The trial court denied the requested modification.
Ultimately, the trial court gave the following modified version of CALCRIM No. 460:
"The defendant is charged with attempted lewd act on a child under 14.
"To prove that the defendant [is] guilty of this crime, the People must prove that:
"1. The defendant took a direct, but ineffective step toward committing a lewd act on a child under 14.
" 2. The defendant intended to commit a lewd act upon a child under 14.
"A direct step requires more than merely planning or preparing to commit a lewd act on a child under 14, or obtaining or arranging for something needed to commit a lewd act upon a child under 14. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action.
"A direct step indicates a definite and unambiguous intent to commit a lewd act upon a child under 14. It's a direct movement toward the commission of a crime, after preparations are made. It's an immediate step that puts the plan in motion, so the plan would have been completed if some circumstance outside of the plan had not interrupted the attempt.
. . .
"The People must prove that the defendant intended to commit a lewd act upon a child under 14 on February 18th, or 19th, 2006, during his meeting with, quote, Amy."
Before giving CALCRIM No. 460, the trial court gave preliminary instructions, including CALCRIM No. 207, which provides: "It is alleged that the crime occurred [on] or about February 18th, 2006. The People are not required to prove the crime took place exactly on that day, but only that it happened reasonably close to that day."
The jury also was instructed with a modified version of CALCRIM No. 251, which provided: "The crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent. For you to find a person guilty in this case, that person must not only intentionally commit the prohibited act, but must do so with a specific intent."
During closing argument, defense counsel urged the jury to focus on whether Deck intended to commit a lewd act with a 13-year-old child "sometime in the future" or "during this meeting." Counsel argued the jury should decide "But for the intervention of the police, would this have happened on this day?" Later, counsel argued the evidence showed "that when [Deck] is talking to her, particularly on the 18th, he is not intending to do it that day."
In rebuttal, the prosecutor argued:
"[Defense counsel] said that I have to prove to you that he was going to commit a lewd act on February 18, 2006. [¶] Folks, he doesn't -- the defendant doesn't turn into a pumpkin at midnight. Let me tell you what the law says. There are two relevant instructions on this. [¶] First, it's alleged that the crime occurred on or about February 18th, 2006. [¶] The People are not required to prove that the crime took place exactly on that day, but only that it happened reasonably close to that day. [¶] The second relevant instruction is the intent instruction. And the last sentence of that says: [¶] 'The People must prove that the defendant intended to commit a lewd act upon a child, under 14, on February 18th or 19th, 2006, during his meeting with Amy.' [¶] So the actual day, February 18th, doesn't have any significance, in the sense that if the alleged lewd conduct didn't happen before midnight, it's not a crime. He doesn't turn into a pumpkin at midnight. It's any time that evening, early the next morning, during that meeting he had with Amy, that he was going to commit a lewd act."
"An attempt to commit a lewd act upon a child requires both an intent to arouse, appeal to, or gratify 'the lust, passions, or sexual desires of [the defendant] or the child' [citations] 'and . . . a direct if possibly ineffectual step toward that goal — in other words, he attempted to violate section 288.' [Citation.]" (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1322.) As our Supreme Court has explained, to establish an attempt the defendant's overt act "must go beyond mere preparation and show that the [defendant] is putting his or her plan into action." (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker).) Indeed, "'the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. [Citations.]' [Citations.]" (People v. Memro (1985) 38 Cal.3d 658, 698 (Memro), overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181.) A speculative possibility of a potential future rendezvous is inconsistent with the inevitable nature of an attempt, where the offense will be accomplished "'unless frustrated by extraneous circumstances'" (Memro, supra, 38 Cal.3d at p. 698) or "'absent an intervening force'" (Decker, supra, 41 Cal.4th at p. 9).
Deck contends the modified versions of CALCRIM Nos. 207 and 460 permitted the jury to convict him based on "an unduly elastic concept of the time frame [for attempt,] including days before the 18th during the many chats between [him] and Amy." We disagree.
"CALCRIM No. 207 accurately states the general rule that when a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304].) The modified CALCRIM No. 460 also correctly instructed the jury "The People must prove that the defendant intended to commit a lewd act upon a child, under 14, on February 18th or 19th, 2006, during his meeting with 'Amy.'" (Italics added.)
The instructions did not unduly expand the temporal limitation on an attempt. They did not suggest there was more than one meeting between Deck and "Amy." Rather, as the prosecutor argued, the evidence showed only one meeting, but the meeting might have continued from the late evening of February 18th into the early morning of February 19th, and thus the attempted lewd act might have occurred either on February 18th or February 19th during that single continuous meeting.
As to Deck's argument the jury may have convicted him based on chats before February 18th, the court instructed the jury the necessary "direct step" to constitute an attempt "requires more than merely planning or preparing to commit" the target offense, but instead "goes beyond planning or preparation" with a "direct movement towards the commission of the crime after preparations are made." (CALCRIM No. 460, italics added.) In addition, the court instructed the jury an attempt requires proof of the union, or joint operation, of act and wrongful intent and it could find Deck guilty only if he specifically intended to commit the prohibited act. (CALCRIM No. 251.) When the instructions are viewed as a whole, there is no reasonable likelihood the jury misapplied the instructions to convict Deck based on overt acts that occurred before February 18th or after the meeting between Deck and "Amy." Therefore, there was no instructional error or erroneous prosecutorial argument on the temporal scope of the charged attempt. C. The Trial Court Properly Denied the Proposed Defense Instruction
Deck argues the trial court erred in denying his request to modify CALCRIM No 460 and instruct the jury that "'[i]n order to find the defendant guilty, the People must prove that he intended to actually commit the lewd act on Amy, on February 18th, , and was only prevented from committing such a lewd act by the intervention of law enforcement.'" (CALCRIM No. 460, italics added.) We disagree.
A court may "properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.) Here, the proposed instruction is duplicative or potentially confusing. The trial court instructed the jury with CALCRIM No. 460, which informed them that "the People must prove . . . the defendant intended to commit a lewd act upon a child under 14." We discern no substantive difference between "intended to commit" and "actually intended to commit." As to the request for modification with the phrase "was only prevented from committing such lewd act by the intervention of law enforcement," the jury instead was instructed the necessary "direct step" for an attempt is "an immediate step that puts the plan in motion, so the plan would have been completed if some circumstance outside the plan had not interrupted the attempt." (Italics added.) The proposed instruction may have confused the jurors because the attempt here did not involve an actual person, and thus the interruption of the plan was not solely because of police intervention. In sum, we independently conclude the trial court did not err in denying the requested pinpoint instruction. D. No Unanimity Instruction Was Required
Finally, Deck contends a unanimity instruction was required because the prosecutor argued there were numerous acts that could have been the "direct steps" to constitute the attempt. We disagree. People v. Russo (2001) 25 Cal.4th 1124 (Russo), is instructive. There, our Supreme Court addressed whether a unanimity instruction was required in a case involving a conspiracy charge. (Russo, 25 Cal.4th at p. 1133.) The Court reaffirmed "the unanimity instruction is appropriate 'when conviction on a single count could be based on two or more discrete criminal events,' but not 'where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event.'" (Id. at p. 1135, quoting People v. Perez (1993) 21 Cal.App.4th 214, 223.) Because the evidence showed only one agreement and thus one conspiracy, the court concluded no unanimity instruction was required. (Russo, 25 Cal.4th at p. 1135.)
Here, the evidence showed only one meeting between Deck and "Amy." Thus, there was only a single possible attempt. Although there were several overt acts that could constitute the attempt, the jury need not decide on any one specific overt act as long as it unanimously found Deck committed an overt act that went beyond mere preparation. (Decker, supra, 41 Cal. 4th at p. 8; cf. Russo, 25 Cal.4th at p. 1128 ["the jury need not agree on a specific overt act as long as it unanimously finds beyond a reasonable doubt that some conspirator committed an overt act in furtherance of the conspiracy."]) No unanimity instruction was required.
The judgment is affirmed.
ARONSON, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.