APPEAL from a judgment of the Superior Court of Los Angeles County. Melvin D. Sandvig, Judge. Reversed in part and remanded with directions; otherwise affirmed. (Los Angeles County Super. Ct. No. PA050648).
The opinion of the court was delivered by: Cooper, P. J.
CERTIFIED FOR PUBLICATION
Arthur George Crabtree appeals from the judgment entered following a jury trial that resulted in his conviction of felony attempted lewd act upon a child under age 14 (Pen. Code, §§ 288, subd. (a), 664); count 1 (Hope).)*fn1 Felony attempted sending harmful matter to minor (§§ 288.2, (b), 664; counts 2, 4, 8); misdemeanor attempted child molesting (§§ 647.6, subd. (a), 664; counts 3 (Becky), 5 (Hailey), 6 (Jenny), 7 (Sammy)); misdemeanor child molesting (§ 647.6, subd. (a); count 9 (N.N.)); and felony lewd act upon a child age 14 or 15 by perpetrator at least 10 years older (§ 288, subd. (c)(1); count 10 (N.N.)). Appellant was sentenced to prison for 5 years and 8 months.
Appellant contends his convictions for attempted child molesting in counts 3 (Becky) and 6 (Jenny) must be reversed, because they were not prosecuted within the one year statute of limitations. He contends the trial court abused its discretion in denying his request for co-counsel status and violated his right to present a defense (U.S. Const., 14th Amend.) by not allowing the unspecified out-of court statements of C.C. (H.H.'s sister), which were admissible under the state of mind exception to the hearsay rule. He further contends the trial court committed prejudicial error by admitting hearsay evidence of a bubble bath sales receipt and evidence of prior bad acts by him.
Appellant also contends the prosecutor committed prejudicial misconduct and challenges the sufficiency of the evidence to support his convictions in counts 1 (Hope) and 10 (N.N.). He attacks his sentence on count 1 on the dual grounds that consecutive sentences and imposition of the upper term violated Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
By letter, we invited the parties to submit supplemental briefs on these issues:
(1) Did the trial court commit unauthorized sentencing error by failing first to impose the appropriate sentence on count 9 before pronouncing "[c]ount 9 will be stayed pursuant to [section] 654?"; (2) Did the court further err by failing to impose any $20 court security fees (§ 1465.8, subd. (a)(1)?; (3) If so, was the trial court required to impose this fee as to each conviction, including one for which punishment was stayed under section 654 (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371 (Crittle))?; (4) What is the total amount of the court security fees the trial court is required to impose?; and (5) Is the upper term on count 1 justified based on the aggravating circumstance of "multiple victims" although "multiple victims" has been deleted as an enumerated circumstance from rule 4.421 of the California Rules of Court? (See Cal. Rules of Court, rule 4.408(a); People v. Calhoun (2007) 40 Cal.4th 398, 400; but see People v. Sandoval (2007) 41 Cal.4th 825, 842-843, fn. 5.) We have received their responses.
Based on our review of the record and applicable law, we reverse appellant's sentence: (1) on counts 3 and 6, (2) with respect to the trial court's failure to impose an appropriate sentence on count 9 and then stay execution of that sentence, and (3) the court's failure to impose a $20.00 court security fee on each of appellant's eight convictions. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This evidence established: Appellant, an attorney who sometimes acted as a "pro tem judge" and was once a City of Glendale police officer, preyed on children for his own sexual gratification. He sexually molested his minor sister-in-law, committed a lewd act on a 15-year-old girl, and sexually targeted female minors in internet chat rooms.
In 1991, appellant went camping with B.P., his then 12-year-old sister-in-law who had been adopted from Korea, and other members of her family. While B.P. was sleeping in the camper, appellant, who lay near her, fondled her breasts under her shirt a few several minutes and rubbed her genital area under her panties for about five minutes. B.P. noticed bleeding in her vaginal area the next day. Although she reported the incident to a sheriff's deputy at school the next day, she was forced to act as if nothing had happened, because her mother said she would side with appellant if the matter went to court.
In 1995, about 4 or 4:30 a.m., H.H., then 15 years old, was at bus stop in Glendale, waiting for one of two buses needed to take her to her Pasadena High School, when uniformed appellant approached in a Glendale police vehicle. He asked what she was doing out so early and entered her identification information into his vehicle computer. Subsequently, appellant dropped by the same stop three to four times a week and spoke to H.H. on each visit for about 30 minutes to an hour. A few months later, he arrived at H.H.'s house and asked her for a date. Appellant, who had a gun and extra rounds on his police belt, hugged H.H. close in a way she felt "wasn't just a normal hug," and he tried to kiss her before leaving.
In 2003, N.N. (counts 9, 10) encountered appellant, the uncle of a church friend, for the first time in an online chat room under N.N.'s screen name "'Actress NMN." Appellant on one occasion sent her a picture of himself. During a chat, N.N. told appellant she was 15 years old. When he asked N.N. to masturbate, she complied.
From 2002 until his arrest in 2005, appellant was the subject of six internet sexual child predator sting operations. Three were conducted by the Federal Bureau of Investigation (FBI) Sexual Assault Felony Enforcement Team, an FBI state and local task force that investigates crimes against children. The FBI special agent would log on to the internet pretending to be a child between age 12 and 14 and wait in chat rooms to be approached by individuals seeking to entice or coerce minors into sexual relationships. Additional sting operations were conducted by the Los Angeles Police Department, the San Jose Police Department, and the California Department of Justice On March 26, 2002, FBI Agent Timothy Alon, whose screen name was "'BECKY13NLA," went online posing as 13-year-old "Becky" (count 3), who lived in Los Angeles. Appellant, whose screen name was "MARKH661," contacted "Becky" and stated he, was a lawyer in his "30's" and that he was "from Valencia, by Magic Mountain." When Becky said she was "13," he responded, "Hi, perfect age." In response to his inquiry, Becky replied she was in the seventh grade. He also asked "how big" [Becky] was "on top" and whether she had "French kissed" before.
On March 28, 2002, appellant contacted "Becky" and asked her for a date, suggesting they meet the following week. He wanted to know whether she had a one-or two-piece swimsuit and said he wanted to rub lotion on her. He added they could go to a spa and she should definitely bring her bikini.
During his contact with "Becky" on April 1, 2002, appellant again asked about her grade in school. After giving "Becky" his "800" phone number, appellant told her to throw away the number after she called him.
On April 11, 2002, appellant again contacted "Becky." After she related that she had written down his number in her diary, appellant became concerned and stated she should "be careful about that." He then suggested "Becky" skip school and meet him. He asked if she had seen pornographic movies.
On April 18, 2002, appellant told "Becky" he wanted to snuggle and kiss her while watching television and related he might get "horny" while watching a pornographic movie.
Appellant gave "Becky" his phone number again on April 22, 2002. He told her he would like to put sun screen lotion on her and "Becky" should have her bikini ready. He concluded by telling her he was getting really attached to her although they had not met yet and he would like to give "Becky" a big hug and a kiss. He added he will make her "a great kisser."
When he contacted "Becky" on April 30, 2002, appellant discussed in detail how he wanted to engage in oral sex with "Becky." On May 14, 2002, appellant asked "Becky" if she had a "cute butt," discussed oral sex again, and once more asked "Becky" how big she was "up top." He instructed "Becky" how to call his "800" number without her parents finding out. He told her he could get into trouble "[b]ecause of age difference...."
On May 22, 2002, "Becky" and appellant exchanged photographs. The photograph of "Becky" was in fact that of a Los Angeles County sheriff's deputy when she was about 12 to 13 years old. Appellant instructed "Becky" how to delete his picture file and empty to the computer's trash can. He discussed his desire to take a bubble bath in a spa with "Becky," and how he would orally copulate her. He asked if "Becky" would be okay with kissing and "even French kissing."
During June, 2002, appellant had various online contacts with "Becky." On June 5, he asked if she looked "pretty good in a bikini" and whether she had a "web cam." He requested she switch from AOL to Yahoo, which had "web cam" availability. After sending her a video of his penis, appellant asked "Becky" if she would really touch it. He also asked about her pubic hair. On June 17, 2002, appellant related he was a "lawyer." On June 18, "Becky" told appellant she had left a telephone message. After listening to the message, which was left by a female decoy, appellant responded that she had "the sweetest voice." On June 26, appellant once more asked "Becky" her size "up top" and then inquired about her nipples and bikini tan lines. He asked about the types of condoms he should bring and wanted to know what she wore to sleep. He also whether she had her first period yet and whether she became "horny" when her menstrual cycle was about to begin.
On August 2, 2002, appellant told "Becky" his concern about being caught if he met her in person. He asked if she wanted to watch a pornographic movie online together and if she ever thought about a possible "threesome."
Appellant's last sexually-related contact with "Becky" was on September 2, 2002. He asked for more pictures of her and related his desire to take pictures of "Becky," in her swimsuit and nude pictures in sexual poses. He asked if she had a two-piece bikini. He also spoke about getting "Becky" a vibrator to play with and discussed in detail how he was going to orally copulate her. During their last contact on October 17, 2002, appellant and "Becky" talked about Hawaii.
The second FBI sting operation also involved Alon, whose screen name at the time was "JennySF13," and who posed as 13-year-old "Jenny" (count 6) living in San Fernando Valley. On May 5, 2003, "Jenny" was contacted online by appellant who told her he liked "young girls" and asked her age. "Jenny" said she was 13 and in seventh grade. Appellant gave her his "800" number and discussed using a spa together and French kissing. He also asked how big "Jenny" was "up top." He told her he was near Magic Mountain. On June 23, 2003, appellant contacted "Jenny" again and talked about going together to the movies. He encouraged her to call him at his "800" number. His last contact with "Jenny" was on November 11, 2003, at which time he related that seeing her in a bikini would "make him nuts."
The final FBI sting operation involved agent Adrienne Mitchelle, whose screen name was "Sammy13CA," posing as a 13-year-old girl named "Sammy" (count 7) living in Santa Monica. On August 27, 2003, appellant contacted "Sammy" on line for the first time. They chatted on 13 separate occasions. "Sammy" told appellant she was "kind of shy" and that she was "five-two with brown hair and blue eyes" and going into the eighth grade. Appellant said he lived by Magic Mountain. They conversed about the type of food "Sammy" liked, romantic walks along the beach, cuddling in the spa, and whether she was a good French kisser. Appellant asked "how big [she was] up top" and whether she preferred "one-piece or two-piece swimsuits." When asked about a girlfriend, appellant stated he had a platonic relationship with someone. He also related he owned a business and he was a lawyer in his thirties.
In September 2003, appellant contacted "Sammy" twice. On September 2, while in the "I Love Older Men" chat room, he asked her what grade she was in and the age of the guys she preferred. She again said she was in the eighth grade. On September 29, appellant again asked about her grade in and asked whether she had a "webcam" and if she were "okay with the age difference." He spoke about meeting her after school and asked where he should pick her up.
Appellant once more asked what grade "Sammy" was in on November 11, 2003. She said the eighth grade. He also asked whether she liked one-or two-piece swim suits and for her picture. He related his marital status and stated his wife was "never here." On January 30, 2004, appellant asked Sammy whether she was okay with age, which was in the "upper 30's," and was serious about meeting him. He again asked about the age of the guys she preferred and for a picture during their chat on February 18, 2004.
On March 3, 2004, appellant became sexually explicit during an instant message and related his desire to "lick" "Sammy" and "suck" her top "so bad" and spoke about spending a weekend together and his "body slamming up against [hers] as [they] do it." He asked where she wanted him to "explode" if he "were to explode[.]" He told her he also wanted to speak with her on the phone." "Sammy" told appellant again she was 13 years old and in the eighth grade."
On June 2, 2004, "Sammy" repeated that she was in the eighth grade and related she was not experienced with sex.
While in a chat room known as "School Yard Hotties" on August 27, 2004, "Sammy" was again contacted by appellant. While discussing what they would do if they met, he asked if she was the "romantic type." She responded, "I don't know. I am only 13." He also asked if she was a good kisser and who she lived with at home. When "Sammy" said she had to leave, appellant replied, "Okay. I love you, Sammy. God, I wish you were here. E-mail me also. Okay." He then wrote, "Smiley face with "'X, O, X, O, X, O.'"
On August 31, 2004, during an instant message, appellant discussed with "Sammy" what they would do when they met. He asked if she could handle a boyfriend of his age, adding, "Um, not meaning like can you handle me inside you or anything." He mentioned rubbing suntan lotion on her and asked "Sammy" if she would rub it on him too. He related his desire to be "boyfriend girlfriend" with "Sammy" and explained he no longer had sex with his wife because he had caught her cheating on him.
Appellant related he dreamt about being together with "Sammy" in a spa while holding hands and kissing. He asked if there were things she would not want to do with a boyfriend, such as having "sex or having him lick you." He then said, "Hmmm, sexually? [W]ell, nothing more than you are willing to do, but if you were ready, I think after we got to know each other, some serious foreplay, like me licking/fingering you would be fun." When asked if having sex would hurt, he responded, "Hmmm, first time it's uncomfortable because your hymen is stretched/broken, but it's incredible feel. There's nothing like sex in the world." He then asked "Sammy," whether she would "honestly want me to slide my cock inside you and make you cum?" He added, "Okay. So I can either pull out, cum on your tummy, or use a condom. You okay with that?"
Expressing concern about their relationship, he asked "Sammy" to "promise not to tell anyone[,] not even your best friend." He told her, "I can promise no one will find out from me, and I can't promise it won't be uncomfortable [the] first time if we go full sex, but I can either lick you or make you cum. That way will be gentle."
Appellant asked "Sammy" if she could meet him Friday and whether she was serious about "meeting in real life." "Sammy" said she had school Friday but suggested they meet next week.
Los Angeles Police Department Detectives Robert Cervantes and Robert McCarty participated in an internet investigation posing as "Hailey" (count 5), a 13-year-old girl, whose screen name was "SK8RHailey1990." On May 28, 2004, appellant contacted "Hailey" through e-mail. "Hailey" related she was 13 years old, 5 feet 2 inches tall, 95 pounds, and had blond hair and blue eyes. Appellant stated he was a lawyer in his "upper 30's," and he lived in Santa Clarita near Magic Mountain. He asked "Hailey" for a picture, said he wanted to meet her, and spoke about French kissing and two-piece swimsuits.
During June 2004, appellant had four online contacts with "Hailey." On June 4, 2004, appellant asked to meet "Hailey" and if she was "a good kisser." On June 7, 2004, appellant talked about "French kissing while [he] let [his] fingers slowly wander around down there." He also talked about taking a bath with her. On June 14, 2004, appellant said he wanted to check out her tan line and talked about "doing X-rated stuff and actually watching the acts--doing the acts together and maybe watching them on TV." She responded that she was not experienced. On June 15, appellant asked "Hailey" to call him at a telephone number later confirmed to be registered to appellant at his Santa Clarita address. In addition to their chats, appellant and "Hailey" also exchanged e-mails discussing tan lines, rubbing lotion, and a possible meeting after school.
The duties of San Jose Police Officer Adam Tover included engaging in internet chats to seek out individuals interested in underage children. His screen name was "BrittanySanJose." On November 24, 2004, while in a chat room known as "Daughters Bikini Too Small," "Brittany" was contacted by appellant through instant messaging. They spoke about going to Hawaii and sharing the same bed together. They discussed "Brittany's" appearance, and appellant expressed his desire to put sun screen on her.
Appellant then turned the chat into one of an explicitly sexual nature. He asked if "Brittany" was experienced sexually and offered to teach her "how to make love." He asked if he could "lick you down there" or "between your legs" and "[d]o you have any hair down there?" He asked "how big [she was] up top." When appellant asked for a picture, "Brittany," who already had told him she was 13 years old and a foster child," sent him a picture of another officer who was 13 when the picture was taken.
He sent "Brittany" three pictures. One of himself wearing a plaid shirt and a second picture through instant messaging. After asking if he should show her "something nasty," he sent a picture of his penis. He asked "Brittany" to show herself naked if she had a webcam. He gave her his "800" number so that it would not show up on the telephone bill and asked her to call him. He expressed continual concern about the pictures he had sent and asked whether "Brittany" had erased the files.
Appellant told "Brittany" he was "just thinking of us [F]rench kissing" and asked whether she already had her first period. He told her "I would definitely like to start rubbing your pussy area while we [F]rench kiss and make you very wet down there" and added, "[M]aybe to make it wetter, I would like to lick down there and put my tongue inside you...." He again mentioned "teaching" her and related his desire to "suck [her] nipples." He also told "Brittany," "Especially once I am inside you and your pussy muscles will be clenching onto me, trying to milk cum out of me, you will feel so good." He offered to buy "Brittany" a plane ticket to fly to Hawaii and related his desire to volunteer to be her foster parent.
During December 2004, appellant made three additional online contacts with "Brittany." On December 7, when asked what grade she was in, "Brittany" responded the ninth grade. Appellant again discussed his concern about the pictures he had sent her. On December 8, appellant expressed his desire to teach "Brittany" "oral" and asked, "[S]o you wouldn't mind me licking, fingering you?" He also asked, "[W]ould you be okay with my age doing it with you?"
When asked whether he had sex with a girl before, appellant responded he had sex with his then 14-year-old sister-in-law. He repeated his desire to be her foster dad and explained that way they could make out in front of the fireplace and take romantic nude baths together. When appellant again asked about her grade, "Brittany" said ninth grade. She also told him she just turned 13 years old. The two then discussed fingering or using a dildo and "Brittany's" menstrual cycle.
On December 12, appellant told "Brittany" that he was thinking about flying to San Jose to meet her and about a "way that wouldn't raise suspicion to get you down here with me." "Brittany" suggested January would be better, because she was being transferred to a new group home. Appellant told "Brittany" he loved her.
On January 14, 2005, their last contact, appellant told "Brittany" he just had eye surgery and was going to go rest.*fn2
Jeffrey MacKanin, a California Department of Justice special agent supervisor who oversaw a federal and state task force investigating child exploitation crimes, posed online as an underage girl named "Hope" (count 1) and whose screen name was "RunawayGirl14." On December 7, 2004, appellant contacted "Hope" online. "Hope" told him she was a 13-year-old runaway living in Sacramento. When she related she was "four-ten, 90 pounds with blue eyes," he responded, "Damn, you sound nice." He said he was "in his upper 30's."
Appellant sent an e-mail picture of himself in a checkered shirt and he asked for a picture of her. Special Agent Tera (Faris) MacKey handwrote the greeting card containing a picture of a female detective when she was an early teenager and sent the card through the mail to appellant from "Hope." Appellant originally identified himself as "Mark" to "Hope," but then asked her to send the picture to a mailbox address in Santa Clarita addressed to "Arthur." He also sent "Hope" a picture of a 13-year-old girl with her nipples showing through her clothes.
After appellant gave "Hope" his "800" number, MacKay, posing as "Hope," contacted him at this number about five minutes later. A Google search of that number led to appellant's law practice website.
Appellant had two separate online contacts with "Hope" on December 14, 2004. During the first, appellant stated his real name was "Arthur" and explained he used "Mark" while chatting online. "Hope" related she was staying with a man named "Jeff" and they would "get intimate" a "couple of times a week." Appellant asked detailed questions about their sexual relationship. He then told "Hope" he was looking into various kinds of transportation for her to meet with him and expressed concern about age restrictions for those who were underage using Greyhound buses. During their second chat, appellant and "Hope" discussed possibly going to Hawaii together. Appellant sent "Hope" several pictures of individuals engaging in sex acts.
On December 15, 2004, appellant told "Hope" about his relationship with his wife and talked about "Hope" staying in a motel during her visit. He discussed oral sex and spoke of his purchase of a thong bikini for "Hope." He mentioned they could spend time with appellant's seven-or eight-year-old son Jimmy, and "Hope" was not to worry about the ticket cost because appellant had money. He repeatedly told "Hope" he loved her.
In the latter part of December, appellant made three more online contacts with "Hope." On December 16, he told "Hope" of his dream about having sex with her "doggy style" and related his sister-in-law, whom he had molested previously, was adopted from Korea. On December 21, he told "Hope" they should meet on January 3, 2004, and he would send her money to buy a Greyhound bus ticket. While discussing what they would do when they met and got a room, he said they would "cuddle" under a blanket and engage in sex. On December 22, appellant told "Hope" that he was going to buy the bus ticket and stated they would take a bubble bath together. They again discussed a possible Hawaii trip together and talked about making arrangements for someone to care for Jimmy while appellant was traveling.
On January 5, 2005, appellant had two separate online chats with "Hope." During the first, appellant told "Hope" they would have to be careful not to get her pregnant and asked about the alcoholic drinks she liked. During the second chat, the two discussed sexual topics. In a pretext telephone call made by MacKay as "Hope" that same day, "Hope" and appellant agreed to meet on January 19, 2005. The next day, appellant sent "Hope" several pictures, including one of his penis. Before he sent them, he made "Hope" promise to delete both pictures.
On January 14, 2005, appellant contacted "Hope" online and related he bought a bus ticket from Sacramento to Newhall for January 19, 2005, at 6:30 a.m., and he would include $20 for food with the ticket. He gave "Hope" a telephone number to call upon her arrival. He told her he was leaving the ...