APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed with directions. (Super.Ct.No. RIF128304)
The opinion of the court was delivered by: Ramirez P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jerry Griffitt of attempting to commit lewd and lascivious acts on a minor (Pen. Code, §§ 664 & 288, subd. (a)).*fn1 He was granted probation and appeals claiming his motion to suppress should have been granted, the trial court should have excluded a video and one of his probation conditions is improper. We reject his first two contentions and determine that the inclusion of the probation condition in the minutes of the sentencing hearing was an error by the courtroom clerk, and we order it to be stricken from those minutes. Otherwise, we affirm.
Perverted Justice is an organization of volunteers who posed as
children between the ages of 10 and 15 years old on Yahoo! regional
Internet chat rooms*fn2 and waited to see if adults in
the chat room wanted to talk to them individually via instant message,
and, if so, chatted via instant message, waiting for the adults to
talk about sex and wanting to meet for sex. The Perverted Justice
volunteers were not told by law enforcement what to say during the
chats. Rather, they are trained by Perverted Justice. The
volunteer*fn3 in this particular case (hereinafter, "the
volunteer"), a five-year veteran of Perverted Justice,*fn4
testified that her organization put her and other
volunteers in chat rooms to pose as minors and "whenever they are
approached by someone and they meet prosecution's standards of intent,
then we turn those people over to the police department."
In 2004, Perverted Justice had teamed up with the television show, "Dateline," and the volunteers had engaged adults as described above, culminating in meetings at a "sting" house that had been set up by the two entities in New York and a suburb of Washington, D.C. At the sting house, the "Dateline" investigative reporter had interviewed the adults, who had arrived thinking they were meeting up with the children with whom they had been communicating, and the interviews had been broadcast on the show. The show involving the Washington, D.C. suburb sting house had aired in November 2005 and many viewers had complained to the network because the adults that showed up at the house had not been arrested. Therefore, "Dateline" went looking for law enforcement agencies that would assist them in the sting and arrest the adults and it contacted the case agent in this case, who was an investigator at the Riverside County Sheriff's Department (hereinafter, "the Department").
In December 2005, the volunteer set up on Yahoo! a profile stating that she was 20,*fn5 and under a section entitled "about me" provided other information, including that she was 13 years old. She testified that she had been told by Perverted Justice administration who was handling the sting to use that age. The profile also contained a picture of a child that was between the ages of 12 and 13.*fn6 Using this profile, she entered a regional chat room that was designated for "romance." On January 5, 2006, defendant initiated a chat with the volunteer. During this chat, defendant asked the volunteer if she was single and if she liked older men, telling her that he was 35. She told defendant that she was 13 and he acknowledged this. Defendant sent her a photo of himself during this chat. Defendant said it was too bad she was not a little older, as he was "looking for a good girl to be with." He asked her if she could be with a man his age and she said maybe. He then told her that she was very hot and he was looking for romance. He asked her if she was experienced with boys, even though she was 13 years old. She said she had had a boyfriend. He asked her if she could get out of her house so they could hang out together. When she said she could, he suggested that she come to his home in Long Beach, but she replied that she could not drive. He suggested that he pick her up and she responded favorably. He said he wanted to talk to her on the phone so he could hear her "sexy voice." She told him she could not call him as calls she made appeared on her mother's phone bill. He expressed concern that if he called her, his number would also appear on the bill but she said it would not.
On January 6, during a chat, defendant asked her if she still liked him and when she said she did, he said he liked her too and he hoped they became boyfriend and girlfriend. He added, however, that because of her young age, they could not go out openly and she suggested that they sneak. He asked her if it would be okay with her to make out and "stuff like that" with a man his age. He said he wished he was with her that day. He suggested that they sneak somewhere and be alone. He offered to meet her, but said that it would have to be where no one would see them. He said she could "make out with" him and "cuddle" him. He offered to pick her up and take her to a motel. He said he bet that she was a great kisser. He asked her the age of the oldest guy she had been with and she said 17 years old. He asked her what they did and she said they made out. He asked her if she was still a virgin and she said she was. He asked her if she thought she would ever want to "do it" with him and she said she would. He said he would be gentle and would not get her pregnant. They chatted again two hours later. He gave her his cell phone number. The volunteer then had another volunteer, who, in the opinion of Perverted Justice, had a voice like a child (hereinafter "the decoy"), pose as the girl and call defendant. The decoy*fn7 testified that she had two phone conversations with defendant, one on the 5th and one on the 6th.*fn8 Another internet chat followed the phone call. During it, defendant said he really wanted to meet her and she volunteered that her parents would be away from the family home for the weekend, beginning that night, and he offered to go to her home the next day and spend that night there with her. He suggested that they might "go farther" than "making out" and he volunteered to bring birth control gel and condoms. She asked him to bring some beer and he said he would. He warned her not to have any friends over, as that would be "too risky." She gave him the address of the sting house, which had been provided to her by Perverted Justice. He offered to bring her a present and she said she liked pie. He said he would bring pie and whipped cream, and he would put the latter on her body and lick it off. He also suggested that they shower together, by candlelight. He asked her if she had relatives who lived nearby and when she said she did not, he said that was good, as no one would be dropping in on them. He asked her if she wanted to make love to him. He commented that she had "very kissable lips" according to the picture she had posted on her profile. He promised to show her how to have sex and he suggested that she masturbate to prepare herself. There was another chat two hours later, during which he discussed her "giving [her] virginity to" him. During a subsequent chat that day, they decided to meet that night. He asked her if she still had the phone number he had given her during an earlier chat and he asked her if she had messaging archives.*fn9 She replied that she did and had found the phone number on it. She testified that she had never represented to defendant during her chats with him that she was 22 years old, that her name was Arianna, that she was an adult poising as a 13 year old or that she was engaged in role-playing or sexual fantasy. On February 14, defendant sent her a message saying, "Fuck you. Leave me alone you bunch of liars."
At a time not specified before January 6, for security reasons, the
case agent and his supervisor chose a couple of homes that were for
rent that could be used as the sting home, and "Dateline" rented one
of them. From January 6 through 8, 2006, the Department maintained a
command center*fn10 a few miles from the sting house and
kept its arrest team in a recreational vehicle parked outside the
house next door to the sting house. When adults came out of the sting
house, the arrest team detained them, looked through the chat logs
that had been provided by the Perverted Justice volunteers and
determined if there was probable cause to arrest the adults, and, if
so, effectuated arrests. The Department also kept at least two units
of two plain clothes officers driving around the area looking for the
adults that were on their way to the sting house so they would know
the type of cars being driven by the adults. No Department officers
or employees entered the sting house during the stings.*fn11
Only the "Dateline" investigative reporter interviewed
the adults inside the sting house and, occasionally, a Perverted
Justice volunteer would be in the sting house, hidden from view of the
adults (who could see that the volunteer was not a child), and she
would disguise her voice to pose as the person with whom the adults
had been communicating. The Department had not instructed this
volunteer or the "Dateline" investigative reporter what to say.
On January 6, defendant entered the sting home and began talking to a Perverted Justice volunteer who was out of his sight and was posing as the child with whom defendant had been communicating. He told her that he had brought an apple pie and some whipped cream. Suddenly, the "Dateline" investigative reporter entered the room where defendant was and began questioning him. Defendant claimed that a 22-year-old lady had told him over the Internet to come to the home. After having some trouble, he recalled that her name was Adrianna and she was the aunt of the child to whom the investigative reporter was referring. He admitted that he brought apple pie, whipped cream, lubricant, contraceptives and beer. He admitted he had chatted for some time with Adrianna over the Internet. The investigative reporter read from the chat log a portion of a chat in which the person with whom defendant had been chatting said that she was 13. Defendant acknowledged talking to the girl but insisted that it was with her aunt that he made plans to meet. The investigative reported then confronted defendant with another statement he had made during a chat in which he acknowledged that the person with whom he was chatting was 13 and another statement by her that she was 13. When the investigative reported confronted defendant with more things that had been said during the chats, defendant suggested that he had been entrapped, but he insisted that he thought he was talking to 22-year-old Adriana. He was unable to explain why the name ...