Super.Ct.No. RIF128308 APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Affirmed. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Teresa Torreblanca, Donald W. Ostertag and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
CERTIFIED FOR PUBLICATION
Following a jury trial, defendant and appellant Joseph Gene Federico was convicted of attempting to commit a lewd act with a child under the age of 14 (Pen. Code,*fn1 §§ 288, subd. (a), 664, count 1) and attempting to send harmful matter to a minor with the intent of seducing the minor (§§ 288.2, subd. (b), 664, count 2). Defendant admitted he had a prior strike conviction for manslaughter with the use of a firearm (§ 192) within the meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). He was sentenced to prison for a total term of six years eight months. He appeals.
I. PROCEDURAL BACKGROUND AND FACTS
In January 2006, the Riverside County Sheriff's Department conducted a sting operation in Mira Loma aimed at catching a sexual predator who was preying on a young girl through the Internet. The sheriff's department was contacted by Perverted Justice.*fn2 Perverted Justice volunteers pose on the Internet as children and wait for adults who are soliciting sexual activity from children to contact them.
Beginning the first week of December 2005, a volunteer of Perverted Justice, Susan Elder (Elder), posed as a young girl, "Missie," with a profile set up under the screen name "Missie_prissie93." The profile included a picture of Missie and stated her age as being 12. Defendant, who had a profile with the screen name "Hunglowilove69" viewed Missie's profile and initiated contact with her on the night of January 5, 2006. The two chatted for about three hours, into the morning of January 6.
In a short period of time, the conversation turned sexual. Although Missie identified herself at the outset as a 12-year-old girl, defendant showed her a picture of his penis, which was on his profile. Defendant asked detailed questions about Missie's prior sexual experiences and stated he would "teach" her and "do all kinds of things" with her. When Missie expressed worry because she had heard sex was painful, defendant assured her he was "very gentle." Missie told defendant she would be alone at her house over the weekend and gave him her Mira Loma address. Defendant was living in Orange County.
As the two were chatting, defendant decided he would masturbate for Missie on his Webcam. As he did, he instructed Missie to touch herself and gave her instructions on where her clitoris was located. Defendant asked Missie: "did u think ur 1st cock would be so big?" He also informed Missie he was going to ejaculate into her mouth and instructed her that she would have to swallow his ejaculate. Defendant arranged a time to visit Missie later, and asked that she answer the door wearing only her bra and underpants.
When defendant arrived at the house, there were police officers waiting for him and he was arrested. Defendant had two vibrating dildos in his car, along with printed directions to the address which Missie had provided.
The only witness for the defense was defendant's ex-girlfriend, who testified that she owned the vibrating dildos. She stated that defendant was supposed to be bringing them to her the night of his arrest.
II. FAILURE TO INSTRUCT ON ENTRAPMENT DEFENSE
Defendant asked that the jury be instructed according to CALCRIM No. 3408 on the defense of entrapment. The trial court denied the request on the grounds that (1) Perverted Justice is not an agent of law enforcement and the defense applies only when law enforcement or its agent engages in the conduct that induces the defendant to act, and (2) the evidence did not warrant giving the instruction. Defendant challenges the trial court's ruling, contending his federal and state constitutional rights to due process and to trial by jury were violated.
A trial court is "required to instruct the . . . jury on the defense of entrapment if, but only if, substantial evidence supported the defense. [Citations.]" (People v. Watson (2000) 22 Cal.4th 220, 222-223.) We review the record to determine whether defendant presented substantial evidence to support the claimed defense and thus require the trial court to give the jury the entrapment jury ...