California Court of Appeals, Third District, Sacramento
CERTIFIED FOR PARTIAL PUBLICATION [*]
APPEAL from a judgment of the Superior Court of Sacramento County, No. 10F00181 Delbert W. Oros, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NICHOLSON, Acting P. J.
Defendant George Hanna appeals from his convictions of several crimes. The jury concluded he arranged a meeting with a minor in order to engage in lewd and lascivious behavior (Pen. Code, § 288.4, subd. (b)),  attempted lewd and lascivious conduct with a child under the age of 14 years (§§ 288, subd. (a); 664), and attempted to use harmful material to seduce a minor (§§ 288.2, subd. (b); 664).
He claims (1) the court erred as to the charge of attempted lewd conduct with a child under the age of 14 years by not instructing the jury on the defense of mistake of fact regarding the victim’s true age; (2) the prosecutor committed misconduct in his closing argument by asserting facts that were not in evidence; (3) the court erred by not instructing on the defense of entrapment; and (4) cumulative error requires reversal.
We disagree with each of his contentions and affirm the judgment.
A 13-year-old minor lived with her father, D.R. (hereafter father). Acting against her father’s rule, the minor maintained an Internet MySpace social network account. After learning of this, father viewed the minor’s MySpace page. The minor’s profile name or moniker was “Brebre, ” which was not her actual first name. She falsely stated on her MySpace profile that she was 18 years old. She also had posted a picture of herself wearing a top with spaghetti straps pulled down below her shoulders which her father would not allow.
While father was viewing the MySpace page, at around midnight, the page indicated the minor had just received an e-mail from someone named “King Jorge” (hereafter King). King asked the minor if she wanted to have oral sex. To dissuade King from any further sexual communications with his daughter, father responded to the message by writing, “I’m 13, ” is that “okay with you?”
King wrote back by instant messaging instead of e-mail. He wrote, “Are you a cop?” Father responded, “LOL, ” meaning “laughing out loud.” Father was continuing to play the role of a 13-year-old to identify King and possibly arrange a meeting with him. Father then wrote, “Are you a weirdo?”
To father’s last question, King wrote, “No. Do you live in Sacramento?” Father responded, “Well, why the fuck wud nbe a pig [sic], ” referring to King’s earlier question about being a cop. Answering King’s next question about where the minor lived, father wrote, “Well, yeh, my profile says that.”
King typed back, “This might be a set up.” Father, responded, “Not very smart, ” referring to King’s question of where the minor lived. Answering the assertion of a setup, father wrote, “Then bye King, if you don’t want to chat. L8R.”
King responded, “I do. Tell me about yourself.” Father wrote, “I go to South Park Middle School. H8TIN life there.” South Park Middle School was a fictional name based on the South Park television show. Father also asked King to tell about himself.
King wrote, “I’m a bouncer at a Latin night club.” Father asked him, “What [do you] bounce LOL.” King responded he was a security guard at a club. He also mentioned the MySpace profile said Brebre was 18. Still acting the part of his daughter, father wrote, “I know but I can[’t] see the hot older guys if I don’t lie. Foo, get with it.”
The dialogue continued, with father trying to keep King communicating with him by making King think he was a real 13-year-old girl who was interested in older men.
At 12:22 a.m., father wrote: “You have a girlfriend? I don’t need another dude with a chica.”
King: “I don’t have a chica.”
Father: “Na, you don’t want to fuck with a 13 year old. You’re playing with me. My last man fucked me a few time but started to get weird ...