People v. Richardson

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts III, V, VI, and VII of the DISCUSSION.

OPINION

In this case, we discuss a number of issues arising out of the convictions of a 36-year-old man who used Internet chat rooms to solicit sex with 13-year-old girls. A jury convicted defendant Michael Richardson of sending or exhibiting harmful matter to a minor (count 1; Pen. Code, § 288.2, subd. (b); undesignated section references are to the Penal Code); attempting to commit a lewd act with a child under 14 (count 2; §§ 288, subd. (a), 664); annoying or molesting a minor (count 4; § 647.6, subd. (a)); and possessing methamphetamine (count 5; Health Saf. Code, § 11377, subd. (a)). The jury hung on count 3 (annoying or molesting a minor), and the trial court declared a mistrial on that count. The trial court sentenced defendant to a total state prison term of five years four months, consisting of four years (the upper term) on count 2, eight months consecutive on count 1, and eight months consecutive on count 5, with a six-month concurrent term on count 4. Defendant contends: (1) Insufficient evidence supports his conviction on count 1 because there is no evidence the material exhibited was harmful. (2) The trial court erred reversibly as to count 1 by instructing the jury that the People did not need to prove the material was harmful. (3) The trial court erred reversibly as to count 1 by failing to give a unanimity instruction. (4) Insufficient evidence supports defendant's conviction on count 2 because the evidence showed his actions were ambiguous and constituted mere preparation, not attempt. (5) The trial court abused its discretion by denying defendant's motion to discharge appointed counsel. (6) The trial court abused its discretion by denying defendant's motion to represent himself. (7) Defendant's upper term sentence is unconstitutional in light of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856] (Cunningham.) Agreeing only with the last contention, we shall affirm defendant's convictions and remand the matter to the trial court for resentencing.

FACTS Counts 1 through 4 sprang from online conversations between defendant and the victims, "Jane Doe" (counts 2 4) and "Mary Roe" (counts 1 3), on the night of April 8, 2004. Defendant had made Mary Roe's online acquaintance earlier, but the police did not learn that until after they had arrested defendant for his conduct toward Jane Doe. *Page 793 Jane Doe On April 8, 2004, 13-year-old Jane Doe and her family were visiting her grandparents in Las Vegas. Around 10:00 p.m., Jane was sitting with her cousin in her grandparents' house, exchanging instant text messages (IM) with a friend through the Yahoo! Internet service. Jane's Yahoo! profile showed that her screen name, "invader_tabbz," belonged to a 13-year-old girl living in Roseville. A pop-up message appeared on Jane's screen from "supersmartguy2004," who claimed to be Mike from Roseville, aged 29. Mike asked if Jane wanted to "meet up" that night. This message made Jane uncomfortable. She knew she was not supposed to exchange IM's with strangers and felt her privacy had been invaded. Calling the message "weird," she showed it to her cousin, then turned over the conversation to her. Jane's cousin, posing as Jane, asked Mike how he got her screen name; Mike answered that he got it from the "member directory." Soon afterward the cousin asked Jane's stepfather, S.G., to intervene. "[F]lustered" and scared, Jane told S.G. that "some guy" who knew where she lived had tried to contact her. S.G. sat down at the computer and told her to leave the room. He then carried on the conversation as Jane, meanwhile telephoning the Roseville Police Department and getting advice on "what kind of information to solicit." After finishing the conversation with "supersmartguy2004," S.G. faxed or e-mailed a hard copy to the police. According to the hard copy, "supersmartguy2004" tried to set up a liaison with "invader_tabbz," whom he believed to be a 13-year-old girl named Kathy. He asked her, "have you ever made out before?" When "she" said she had, he replied, "so lets makeout[.]" He instructed her to sneak out and meet him at a nearby 7-Eleven so they could go back to his place for that purpose. He said he would be driving a "lil black 2 door" with "chrome rims" and gave her a cell phone number.1 He also said he would be wearing a black T-shirt and jeans; at his request, "Kathy" promised to wear a skirt. *Page 794 Roseville Police Sergeant Bergstrom advised the police dispatcher about what to tell S.G. Bergstrom suggested the 7-Eleven which S.G. (as Kathy) and defendant picked as the place to meet at 12:30 a.m. on April 9, 2004. After getting a description of the suspect, his clothing, and his car, Bergstrom deployed officers to watch the 7-Eleven and to arrest the suspect if he showed up. Roseville Police Officer Wernli, parked near the 7-Eleven in an unmarked car, saw a black car park in the lot around 12:20 a.m. Defendant, wearing a black T-shirt and jeans, went into and out of the store, got back in his car, and drove off. Roseville Police Officer Buelow, on assignment with Officer Wernli, got out of their car for a better view from what he believed to be a shadowed spot. He saw defendant walking around in the store and making a purchase, then heard defendant's car "rapidly accelerating" as it left. Buelow later realized the spot he had stood in was well lit and defendant might have observed him. At 12:22 a.m., Sergeant Bergstrom learned that the suspect's car was leaving the 7-Eleven. He got behind the speeding car, then stopped and arrested defendant, its sole occupant. Sergeant Bergstrom determined the car was registered to defendant at an address on Sunrise Boulevard in Roseville, just a few miles away. Searching the car, on the backseat the officers found a paper bag containing a bottle of Mike's Hard Lemonade and a box of Trojan condoms. Officer Wernli confirmed that the 7-Eleven stocked those items. The 7-Eleven's surveillance videotape showed defendant entering the store at 12:16 a.m. on April 9, 2004, and standing at the counter at 12:18 a.m. Later on April 9, 2004, Roseville Police Detective Walstad searched defendant's residence and seized a computer, which he turned over to the high tech crimes task force for forensic analysis. Sacramento County Sheriff's Detective Dale Lee, a member of the task force, examined the computer's hard drive. Lee determined the computer was used by Yahoo! subscriber "Mike," whose screen names included "supersmartguy2004" and "mikeys20032003." Four photographs of a White male adult, printed from the computer, were identified as depicting defendant. *Page 795 A Yahoo! subscriber can identify and view subscribers' profiles by gender, age, and location, although he cannot be sure the information is accurate because the subscriber provides it and Yahoo! does not verify it. "Mike" had viewed profiles of users purporting to be females under 18, including "invader_tabbz."2 A search on the computer for "invader_tabbz" revealed an IM conversation between a person using that name and defendant, beginning around 10:49 p.m. on April 8, 2004. The conversation was identical to the one S.G. sent the Roseville police. Mary Roe People's exhibits 37 and 38 showed an IM dialogue between defendant and "ascension_into_lies," profiled as a 13-year-old girl living in Sacramento (Mary Roe), on March 7, 2004, and March 19, 2004. On March 7, he introduced himself and asked if she wanted to "fuck tonight seriously," but got no response. On March 19, he asked if she wanted to meet "right now tonight no bullshit"; she answered, "not really," since she did not know him and he was "probably too old." She also said she did not feel like "sneaking out" and she had a boyfriend. People's exhibit 33 showed Mary Roe's Yahoo! profile, including her photograph, which defendant had viewed. People's exhibits 35 and 36 showed this and other photographs of Mary Roe, found on defendant's hard drive along with a photograph of a White adult male.3 People's exhibit 32 showed 58 pages of further IM conversation between defendant and Mary Roe on April 8, 2004, beginning around 3:32 p.m. and ending shortly before he contacted Jane Doe. Mary Roe testified about this evidence. In March and April 2004, she was a 13-year-old Yahoo! subscriber using the screen name "ascension_into_lies." She remembered at least three IM conversations with "supersmartguy2004" *Page 796 or "mikeys20032003." She ignored his first message, thinking "it was just some random person that was trying to harass" her; she felt the same way about the second message. However, on April 8, she engaged in a prolonged and sexually suggestive discussion with defendant.4 During this conversation, defendant said he would like Mary "passed out naked" on his "bedroom floor"; though she felt "harassed," she did not end the discussion. She told him she was "not even old enough to get a work permit"; he answered, "oh shit ok." She sent him photographs of herself; he said, "hey you look good." She told him she was wearing a skirt, underwear, a bra, and a tank top; he responded, "oh yeah" and "im liking that skirt thing." She said, "Having sex in a skirt." He gave her his cell phone number and told her to call him. Later, defendant said he wanted to take her "panties off play with you HI pussy while you give me those big lips on my you know then I fuck that wet little pussy k," then added, "hows that sound"; she replied, "Very good." He reiterated that he wanted "to just hike that skirt and get busy." He also asked if they could "just park somewhere and do it in my car huh?" During a one-hour break in the IM conversation, defendant called Mary on the phone and tried to engage in "phone sex" with her. She did not reciprocate. At another point, defendant and Mary further discussed sex acts. He asked her if she liked "it from behind or from the front or does it matter" and said, "bet you get wet really easy huh"; she replied, "Yeah." He added, "just think we couldve been doing it right now[.]" He explained he liked "the top thing" and "to see a grl play with herself for me a lil first and spreads herself open for me to do you know wat i mean"; she said she did. He followed up: "omg I'm getting hornier i really want to hike up your skirt take your panties off and go inside you right now though would you like that?"; she answered "mmhmm." He asked if she was "getting wet at all right now." He asked if she liked "it slow or hard and fast" and added, "lil of both huh"; she answered "yep." He said he wanted "to suck those sweet tits of yours chew on your lips to mmm."5 Defendant then tried to talk Mary into sneaking out and meeting him. She answered, "maybe," adding, "night er escapades are a lot harder to pull off *Page 797 than day ones." He offered to pick her up near home, saying she would not "be gone all that long you know." Apparently sensing reluctance, he accused her of playing "some kind a game or something"; she replied it was "not a game," her parents were home, she was "under high alert and all," and did not want to "face the consequences." He asked when they went to bed; she said "no set bedtimes." Uncharged acts Sacramento County Sheriff's Detective Dale Lee also testified about other IM conversations on the computer between defendant and apparently underage females. Hard copies were introduced as exhibits.6 People's exhibit 20 showed an IM conversation between defendant and "mllefloride," profiled as a 16-year-old girl, around 7:00 p.m. on March 6, 2004. Defendant asked if she wanted to "fuck tonight maybe." She responded, "illegal"; he replied, "so." She asked if he wanted to be arrested; he said, "sure im not scared." She said she was "only 14, and my dads a cop"; he said he "always wanted to do a cops lil girl." He asked her to sneak out and meet him because he wanted "some hot young sweet pussy I could eat for awhile." He explained he preferred to "pick up" girls on the Internet because they are "way sweet compared to bars." People's exhibit 16 showed IM's defendant sent to "blink_chicka_182," profiled as a 15-year-old girl. Ultimately identifying himself as a 29 year old in Roseville, he contacted her on four different dates from March 12, 2004, to April 5, 2004, repeatedly asking to get together and "make out" or "fuck maybe." He asked if she was a virgin and said he "really want[ed]" her. She never responded. People's exhibit 20 showed IM's defendant sent to "bammawuvsyou," profiled as a 16-year-old girl living in Roseville, on three dates beginning January 2, 2004, and ending February 12, 2004. The first time he asked her to let him give her a "full body massage with warm passion fruit lotion all over"; the second time he asked if she could come over that night; the third time he said he sought a "cute girl" who wanted to "fuck no strings no bullshit games im serious reply if your interested in hearing more[.]" She never responded. *Page 798 People's exhibit 17 showed an IM defendant sent to "babkitz," profiled as a 16-year-old girl living in Sacramento, on February 12, 2004, confiding that he "really want[ed] to get laid tonight." She did not respond. People's exhibit 21 showed an IM dialogue between defendant and "ilikeitinthebutt05," profiled as a 16-year-old girl living in Rocklin, over the period January 13, 2004, to February 8, 2004. On January 13, defendant wrote that she had a "nice sn"; she replied, "haha." On January 14, defendant told her he "really want[ed]" her, invited her to "come over," and let her know he wanted "to do you somewhere not just the but"; she did not respond then, or on January 23 or February 1. His February 4 promise to "give it to you inthebut if you want" did not improve his luck; nor did his February 6 invitation to come see him at his house. On February 8, he asked her to meet him sometime soon; she replied that she did not know him and asked his age; he invited her to look at his profile. She said she was 15; he said he was 29. People's exhibit 19 showed IM's defendant sent to "flutterbyes01," profiled as a 16-year-old girl living in Roseville, over the period February 22, 2004, to April 9, 2004. On February 22, introducing himself as a 29 year old living in Roseville, he asked if she wanted to meet that night; on February 24, he asked if they could "meet and just fuck"; on February 26, he hoped to be her "teddy bear forever"; on February 29, he asked her to marry him; on March 7, he asked her to meet him that night to "fuck"; on April 9, he again asked her to meet that night. She never responded. Other evidence While searching defendant's home, in a desk drawer Detective Walstad found a plastic bag containing a substance which proved to be a usable amount of methamphetamine, along with a "methamphetamine pipe" and defendant's expired driver's license. Defendant did not testify or put on evidence.