Opinion
A129082
01-19-2012
THE PEOPLE, Plaintiff and Respondent, v. RICARDO LOPEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCR540984)
Defendant Ricardo Lopez was charged with attempted commission of a lewd act on a child under age 14 (Pen. Code, §§ 288, subd. (a), 664; Count I); attempted contact with a minor with intent to commit a sexual offense (Pen. Code, § 288.3, subd. (a); Count II); and going to an arranged meeting place to engage in a lewd act with a minor (Pen. Code, § 288.4, subd. (b); Count III). Lopez was convicted by a jury of Counts I and II, and acquitted of Count III. He was granted probation, conditioned on service of 90 days in county jail.
Lopez contends that the judgment must be reversed because the evidence did not support jury instructions pursuant to CALCRIM No. 361 ("Failure to Explain or Deny Adverse Testimony") and CALCRIM No. 362 ("Consciousness of Guilt: False Statements"). We conclude that the instructions were based upon the evidence. Moreover, any error in giving them was harmless. We therefore affirm the judgment.
I. BACKGROUND
On June 18, 2008, Santa Rosa Police Detective Brad Conners created the undercover email address "sweettreat1994@yahoo.com" for the fictitious person "Brittany Daniels." The address was meant to suggest that Brittany was born in 1994. At 10:42 that morning, Conners posted an advertisement on the erotic services section of the Craigslist website. The section warns users that it is for adults only, and that entry constitutes an acknowledgement that a user is 18 years old.
The advertisement was entitled: "Young cutie needs to make some money quick! - w4m (santa rosa)." A browser who clicked on the link would see an ad that read: "Hey guys it's brit. i need to make some money quick to get out of town. i'm young cute and blond. Can u help me out? [¶] hj 50 [¶] bj 100." The abbreviations "w4m," "hj 50," and "bj 100" referred to women seeking men, "hand jobs" for $50, and "blow jobs" for $100. Beneath the text was a cartoon image of a young girl with blond hair. The ad was intended to apprehend people involved in juvenile prostitution.
Lopez, then 32 years old, responded to the ad five minutes after it was posted with an email from "rick lopez" saying, "picture?" Conners, writing as "Brittany," responded with an email saying: "well I don't have a pic cuz im not at home. i ran away the other day cuz life sux. I shuld probly tell u that im only 13 cuz I don't want anyone to freek out or nuttin. if u wanna hook up im downtown [¶] if iwuz a cartoon id look like the pic in my ad! [¶] brit" Lopez replied, "damed! Where in downtown exactly, i might be able to help you out."
After additional emails, Lopez and "Brittany" agreed to meet at 12:15 p.m. next to a movie theatre. Brittany said that she would be wearing jeans and a tan shirt, and Lopez said that he would be dressed in all black. Brittany said, "i do bjs for 100 & i dont do nuttin w/o condoms so u hafta bring em." Conners did not expressly refer to Brittany's age after the first email, but tried by the jargon and spelling he used, and the information he conveyed, to make Brittany's messages sound like they were from a young girl. As Lopez and Brittany were discussing where to meet, she told him that she was at the library, and that she got harassed by security guards when she hung out at a mall.
Conners set up surveillance, and stationed Detective Summer Black, a blond female officer wearing a tan T-shirt and jeans, at the meeting place. Black was 32 years old, and did not look like a 13-year-old. She was sitting on a bench when Lopez walked up wearing black clothes. Lopez walked by her and gave her a long, inquisitive look before he sat down 20 to 40 feet away. Conners called Black and told her to approach Lopez and ask if he was Rick. When she did so, Lopez said "yes," he was Rick, and asked her if she was Brittany. She said "yes," and put her hair into a ponytail, the signal for an arrest.
Lopez was arrested and searched. He had two condoms and five $20 bills in a front pocket of his pants, and ten $20 bills and a condom in his wallet.
Conners interviewed Lopez on the day of his arrest, and the interview was audio and videotaped. The videotape was played for the jury, and the jury was given a transcript of the audiotape.
Conners asked Lopez, "[W]hat's going on today. Tell me why we're here." Lopez said he was online and browsing through Craigslist. Conners asked, "Were you on any particular part of Craigslist?" Lopez answered, "Well, yeah. I was just browsing through, an[d] I usually uh, look at the hobby and you know, go through the personals." Conners asked whether Lopez was in the erotic services area, not the personals, and Lopez answered, "Yes, I might have been in there." Conners asked, "erotic services are . . . for prostitutes. Right?" Lopez answered, "you could um, make that assumption," and said, "I been there . . . a couple of times." Lopez said that he found a posting of a female wanting sex. Conners asked what the ad said, and Lopez replied that it talked about "[g]etting out of town." Conners asked whether the female described herself in the ad, and Lopez said, "No. She had . . . a picture and that's it," adding that the picture "was like a cartoon." Conners asked whether the ad "describe[d] the person? Did it say, 'I'm old' or anything like that? What did it say?" Lopez said, "No. It didn't."
At that point Conners showed Lopez the ad, had Lopez read it out loud, and pointed out: "So you told me it didn't say anything about what the person looked like. Right there it says I'm young, cute and blonde." Lopez said, "M-hmm." Conners asked what happened next; Lopez said he was interested and sent emails. Conners said that he had the emails, and "she told you she was only 13." Lopez said, "M-hmm." Conners referred to the message saying that Lopez would need to bring condoms, and noted that he was carrying condoms when he was apprehended. Lopez replied, "I always do carry them." Lopez asked Conners how much trouble he was in, and Conners told him that he had been arrested for the felony offense of attempted lewd act with a child. Lopez said, "I have been making a horrific mistake here, but . . . I'm not a child molester . . . ." He admitted using "poor judgment."
Conners, an expert on internet prostitution and sexual exploitation of children on the internet, testified that there are two types of people who pursue sex with children: "preferential sex offenders," and "situational sex offenders." "Preferential sex offenders" prefer having sexual relations with children. "Situational sex offenders" may have "perfectly normal healthy adult relationships but find themselves . . . having an occasional urge to have a sexual relationship with children," which they will act upon if given the opportunity. Conners opined that Lopez was a situational, not a preferential, offender, and that "this was likely an isolated incident on [his] part."
Conners testified that women who advertise as prostitutes on the internet often falsely describe their appearance, but he had never run into an ad where a prostitute had falsely claimed to be a minor. Conners did not have Lopez's computer examined to determine whether he searched for young or teenage prostitutes because any such evidence would not have altered the charges in the case.
Lopez admitted at trial that he solicited sex for money when he communicated with "Brittany," that he believed Brittany was a prostitute, and that he put money and condoms in his pocked in anticipation of meeting her. But he testified that he did not believe she was 13 years old or expect her to be younger than 18. He had previously procured prostitutes on Craigslist and never met anyone who appeared younger than 18. He had no reason to disbelieve the Craigslist notice that the erotic services section was reserved for adults, and had learned from experience that people who advertise at the website do not always look the way they describe themselves.
On the latter point, the transcript reads: "Q. So you made a plan to meet with her, right? A. Yes. Q. And then you put some money and condoms in your pocket and you showed up and you went to that location, right? A. Yes."
Lopez testified that when he saw Detective Black he thought she was Brittany because she was a blond female wearing the clothes Brittany had described. He testified that he intended to talk with Black and then "continue with what [they] had negotiated earlier." When he was asked why he did not approach Black when he first saw her, Lopez testified, "I don't know. Really, I don't know." He denied waiting to approach Black because he thought he was meeting a 13-year-old.
At one point during his cross-examination, Lopez testified that he did not care how old Brittany was, but at another point said that he "of course" cared about her age. On direct examination, he testified that if he had believed that Brittany was 13 years old, he would have done "the correct thing" and "[l]et it go."
II. DISCUSSION
A. CALCRIM No. 361
Over defense objection, the court instructed the jury pursuant to CALCRIM No. 361 as follows: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure." The court did not believe that this instruction was "really a particularly important [one] in this case," but thought that "it does apply."
Before giving this instruction, the court must determine: "(1) if a question was asked that called for an explanation or denial of incriminating evidence; (2) if the defendant knew the facts necessary to answer the question or if some circumstance precluded the defendant from knowing such facts; and (3) if the defendant failed to deny or explain the incriminating evidence when answering the question." (CALCRIM No. 361, Bench Notes.) Here, Lopez was faced with the incriminating evidence that he did not approach Detective Black despite his professed belief that she was Brittany. Although Lopez denied that he did not approach Black because he was expecting to meet a 13-year-old, he could not explain his inaction. When asked about the matter, he said, "Really, I don't know." Accordingly, there was an evidentiary basis for the CALCRIM No. 361 instruction (ibid.), and the court did not err in furnishing it.
B. CALCRIM No. 362
The court instructed the jury pursuant to CALCRIM No. 362 as follows: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."
The prosecution initially requested this instruction based on misleading statements by Lopez in his interview with Conners. The court thought that the instruction was "probably justified," but reserved a ruling until the close of evidence. Later, the prosecution again argued for the instruction based on misleading statements during Lopez's interview, "particularly as to the content of the ad that he responded to[,] [b]efore he knew that the detective actually had it . . . ." The court said that it was not inclined at that point to furnish the instruction, but would reserve a ruling until Lopez finished his testimony. After Lopez finished, the court had an off-the-record discussion with counsel, and gave the instruction.
The People contend that Lopez forfeited his argument against the instruction by failing to object to it on the record. We do not reach the forfeiture argument because we conclude that the instruction was supported by the evidence.
Consciousness of guilt may be inferred from " 'any false or misleading statements [the defendant] may make to the arresting officers or others with relation to material facts, for the purpose of misleading, or warding off suspicion . . . .' " (People v. Fritz (2007) 153 Cal.App.4th 949, 959 [italics omitted].) A consciousness of guilt instruction is proper if "some evidence in the record . . . w[ould] sufficiently support the suggested inference." (People v. Hannon (1977) 19 Cal.3d 588, 597.)
Lopez made a number of statements to Conners that supported giving CALCRIM No. 362. He first misleadingly suggested that he was browsing the hobby and personals sections of Craigslist rather than the erotic services area. As for the contents of Brittany's ad, Lopez submits that he "recalled much of what the advertisement said, and what he did recall was accurate." However, before Conners showed Lopez the ad, Lopez falsely claimed that it did not describe Brittany's appearance when it in fact stated that she was "young, cute, and blond." Lopez told Conners that he had condoms because he "always" carried them, but his trial testimony was to the effect that he carried them because he planned to have sex with a prostitute. (Fn. 1, ante.) The evidence was thus sufficient to support CALCRIM No. 362.
C. Prejudice
It is not reasonably probable that the result would have been different if either or both of these instructions had not been given. (See People v. Saddler (1979) 24 Cal.3d 671, 683 (Saddler) [prejudice from erroneous use of CALJIC No. 2.62, the predecessor to CALCRIM No. 361, assessed under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]; People v. Lamer (2003) 110 Cal.App.4th 1463, 1471 [same] (Lamer); People v. Mattson (1990) 50 Cal.3d 826, 872 [applying Watson to alleged error in giving CALJIC No. 2.03, predecessor to CALCRIM No. 362]; People v. Rankin (1992) 9 Cal.App.4th 430, 436 [same]; see generally People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [Watson applies if instruction is given "which, while correctly stating a principle of law, has no application to the facts of the case"].) We conclude that any error was harmless for a number of reasons.
First, the court instructed pursuant to CALCRIM No. 200 that "[s]ome of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them." This instruction mitigates any prejudicial effect that may result from an instruction that is not warranted by the evidence. (See Saddler, supra, 24 Cal.3d at p. 684; Lamer, supra, 110 Cal.App.4th at p. 1472.) The challenged instructions by their terms do not apply unless the jury finds, in the case of CALCRIM No. 361, that Lopez unreasonably failed to explain or deny evidence against him, or, in the case of CALCRIM No. 362, that he knowingly made false or misleading statements relating to the charged offenses. If, as Lopez maintains, the evidence did not support those preliminary findings, then the jury would presumably have followed CALCRIM No. 200 and disregarded the challenged instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [jurors are presumed to understand and follow the instructions]; People v. Sanchez (2001) 26 Cal.4th 834, 852 [same].)
Second, portions of the instructions were favorable to the defense. CALCRIM No. 361 states that a defendant's failure to deny incriminating evidence does not by itself prove guilt, and that the prosecution must still prove each element of the crimes beyond a reasonable doubt. (Lamer, supra, 110 Cal.App.4th at p. 1472 [noting aspects of CALJIC No. 2.62 that were favorable to the defendant].) CACRIM No. 362 likewise cautions that a defendant's false or misleading statements are not alone sufficient for a conviction.
Finally, the prosecution did not refer to the challenged instructions, or the evidence supporting them, in jury arguments. (Lamer, supra, 110 Cal.App.4th at p. 1473 [that fact among others established harmless error].) The instructions and related evidence were not at all central to the prosecution's theory of the case.
There is no likelihood that omission of the instructions would have changed the outcome.
III. DISPOSITION
The judgment is affirmed.
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Siggins, J.
We concur:
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McGuiness, P.J.
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Pollak, J.