APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Affirmed. (Super. Ct. No. RIF128317).
The opinion of the court was delivered by: Miller J.
CERTIFIED FOR PARTIAL PUBLICATION *fn1
A Riverside County jury found defendant, Karampal Singh Nakai, guilty of two counts of attempting to send harmful matter to a minor with the intent to seduce the minor. (Pen. Code, §§ 664, 288.2, subd. (a).)*fn2 The jury found defendant not guilty of attempting to commit a lewd or lascivious act with a child under the age of 14 years. (§§ 664, 288, subd. (a).) The trial court granted defendant three years of formal probation, with the conditions that defendant (1) serve 270 days in the custody of the Riverside County Sheriff, on weekends; and (2) register as a sexual offender for the rest of his life (§ 290).
Defendant makes three contentions. First, defendant asserts that the trial court erred by not instructing the jury on the lesser included offense of attempting to distribute harmful matter to a minor. (§ 313.1, subd. (a).) Second, defendant contends that the trial court erred by not excluding the Yahoo! chat dialogue between defendant and the purported minor, because it was a confidential communication. (§ 632.) Third, defendant asserts that Riverside County did not have jurisdiction over the case because defendant's criminal acts occurred in San Bernardino County, i.e., the venue was improper. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Coleen is a member of Perverted Justice, and was 35 years old at the time of defendant's trial. Perverted Justice members create internet profiles of 12- or 13-year-old children, and use those profiles in internet chat rooms*fn3 to find adults that solicit children online. In other words, members of Perverted Justice are adults who act as though they are 12- or 13-year-old children, while chatting online with adults who believe that the Perverted Justice member is a child. On January 3, 2006, Coleen entered a regional chat room for California*fn4 -Coleen was chatting from her computer in Michigan. Coleen used the screen name dark_dana_666. While in the chat room, Coleen was contacted by defendant, who used the screen name gavy_nakai.
While chatting, Coleen wrote to defendant that she was a 12-year- old female in Riverside, California. Defendant wrote to Coleen that he was a 20-year-old male in Rancho Cucamonga, California. Defendant asked Coleen if she had a boyfriend and Coleen responded that she did not, but that she previously had a boyfriend. Defendant asked Coleen if she had a camera or a picture of herself. Coleen wrote that she did not have a camera. Defendant then asked Coleen to tell him what she and her ex- boyfriend did together. Coleen responded, "We just made out and did it once." Defendant asked Coleen "[h]ow big" her ex-boyfriend's "thing" was. Coleen responded that her ex-boyfriend's penis was less than seven inches. Defendant wrote that his penis was nine inches. Coleen wrote that she had "never seen one that big." Defendant offered to show Coleen his penis via his internet camera (web cam).*fn5 Defendant then sent Coleen an image of his erect penis. Coleen responded, "[I]t's gigantic." Defendant again informed Coleen that his penis was nine inches long "and almost two inch[es] thick."
Defendant then wrote to Coleen, "What [would] you like to do with my dick? It's secret, girl. Will you suck my dick?" Coleen responded that her mouth was not large enough, and it "would hurt so bad." Defendant asked Coleen if she would "like to ride on it." Coleen again expressed concern that it would "hurt." Defendant wrote, "You will love it." Defendant asked Coleen, "See my dick again?" and "Are you rubbing yourself?"
Defendant requested that Coleen and he speak on the telephone. Coleen wrote that she could not speak on the telephone because her cell phone was charging. Defendant again requested to speak to Coleen on the telephone, but Coleen refused because her "mother" would hear. Defendant sent Coleen images of a naked woman by turning his web cam towards the pornographic picture on his computer monitor-essentially sending Coleen an image of his computer screen. Defendant and Coleen made plans to speak on the telephone the next day.
As the chat dialogue progressed, defendant wrote, "I am so hot now. I gotta go jack-off now." He then wrote that he would be thinking about Coleen while "jacking off." Coleen wrote that she would be staying online, so defendant wrote that he would "jack-off later." Defendant then asked Coleen, "Do you have hair on your pussy?" Coleen responded, "Um, yeah, a little." Defendant wrote, "Oh, hmm, nice" and asked, "Do you like [it] when some[one] lick[s] it?" Coleen wrote that she had "never [done] that" and asked if it hurt. Defendant responded, "Licking don't hurt." Defendant then wrote, "I can lick hard with my fingers in it."
Coleen commented that she liked the photograph included in defendant's online profile. Defendant responded, "Girl with me. I fuck her in her ass all the time." Defendant again requested that Coleen call him on the telephone. At that point, Coleen contacted Amanda, another member of Perverted Justice, via online instant messenger. Amanda is able to alter her voice to sound like a young person. Amanda called defendant. On the telephone, defendant asked Amanda, "What's up." Amanda responded, "Nothing." Defendant asked Amanda how she obtained her cell phone. Amanda said that her mother bought it for her. Defendant then said, "You're just a baby." Defendant asked Amanda if she "liked what [she] saw." Amanda responded, "I guess I did." Defendant asked Amanda if she "would lick it," and Amanda said she "could if he wanted [her] to" and then Amanda abruptly ended the telephone conversation.
Coleen then wrote to defendant, in the private chat room, "I'm so sorry. My mom called me. She was coming in. Are you mad? I'm sorry." Defendant wrote that he was not mad, and that he wanted Coleen to call him the next day. Defendant then wrote, "[T]ell me how you want [a] guy to do sex with you." Coleen wrote that she did not engage in cyber sex.*fn6 The following chat ensued:
"[Defendant]: Do you like to kiss first?
"[Coleen]: . . . Yeah, I do.
"[Defendant]: Then what [do] you want [a] guy to do after he kiss[es] you?
"[Coleen]: I don't know. Make-out, I guess.
"[Defendant]: Ok. You want him to suck your tits?
"[Coleen]: . . . Yeah, sure.
"[Defendant]: Then what [do] you w[an]t him to do? [¶] . . . [¶]
"[Defendant]: Do you like to lick his cock first, or you want me to lick your pussy first?
"[Coleen]: I don't know. Whatever is cool."
Defendant asked Coleen where she engaged in sex with her ex- boyfriend. Coleen wrote that she had sex in her room while her mother was at work. Defendant wrote that he would "love to have sex." Coleen asked, "[W]ith me?" Defendant responded, "What [do] you think?" Coleen responded that she was afraid defendant's penis "would hurt." Defendant wrote, "We can just lick each other, oral." Defendant then asked, "Do you rub yourself?" Coleen wrote that she did. Defendant asked, "Did you cum," and Coleen wrote, "Yeah." Defendant asked, "Tell me, did you cum? Baby, oh, yeah. Did you taste it? Lick your fingers?" Coleen responded, "No." Defendant wrote, "I'm going to cum, ok?" Defendant then wrote, "I am going to think that I am cumming on your pussy." Defendant and Coleen made plans to speak on the telephone the next day, and wrote "good night" to one another.
The next day, on January 4, 2006, Coleen wrote to defendant, online, that she was sorry for not telephoning defendant, but that she had been at a friend's house, without defendant's telephone number, and therefore, had been unable to call. Defendant wrote that it was okay that Coleen did not call because he "was scared [a] little" due to Coleen being "too young." The following dialogue then occurred:
"[Defendant]: I can get in trouble.
"[Defendant]: You're not 18.
"[Coleen]: Oh, but I'm mature. I told you I was.
"[Defendant]: You d[o]n't get it.
"[Defendant]: You're not 18. I can get in trouble for that. You know that. People [are going to] call me [a] child abuser.
"[Coleen]: I'm not telling if you ain't. . . . I'm not a child.
"[Defendant]: You're 13. Hello.
"[Coleen]: I'm almost 13, but that don't matter. [¶] . . . [¶] I'm mature and not like other ...