Filed 10/20/15 P. v. Mendez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066113

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN312639)

JIMMY MENDEZ,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, William C.

Gentry, Jr., Judge. Affirmed.

         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney

General, Julie L. Garland, Eric A. Swenson, Lynne G. McGinnis and Junichi P. Semitsu,

Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Jimmy Manuel Mendez of attending an arranged illicit meeting

with a person he believed to be a minor, in violation of Penal Code1 section 288.4(b)

(count 1), and of attempting to contact or communicate with a minor to commit a sexual

offense, in violation of section 288.3(a) (count 2). The trial court sentenced Mendez to 60

days in custody, with credit for time served, and placed him on probation for three years.

On appeal, Mendez contends that he was entrapped as a matter of law, requiring reversal

of the judgment of conviction. Reviewing the record in the light most favorable to the

judgment, we conclude that there is sufficient substantial evidence to support the

conviction and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In November 2012, Mendez posted an online ad on Craigslist's Casual Encounters

website, stating that he was 30 and "looking for a fwb [friend with benefits] in the north

county area." His ad caught the attention of Damian Jackson, a detective with the

Prevention and Child Exploitation Unit of the Escondido Police Department, because it

lacked age parameters and stated, "I'm not picky[,] so don't be afraid or intimidated."

Over the next day and a half, Mendez exchanged 93 e-mail messages and 212 text

messages with Detective Jackson, who was posing as a 14-year-old girl named "Alexis."

       "Alexis" responded to Mendez's Craigslist ad, asking, " r u cool with sum1 a lil

younger?" Mendez asked, "how young?" and "Alexis" replied that she was 14. Mendez



1      All further statutory references are to the Penal Code, unless otherwise specified.



                                             2
said, "Omg! that's real young!...lol" but did not terminate their conversation. "Alexis"

offered Mendez the first of many opportunities to back out, saying: "thas cool I wont b a

pest sry :)." Mendez reassured "Alexis" that she was not a pest and continued the

conversation. He asked, "What exactly are you looking for out of this?" and asked

"Alexis" for a picture. Detective Jackson sent a picture of a young female agent, to

which Mendez replied, "And if that's really you, you don't look 14 in that pic..??? Lol"

Mendez asked whether "Alexis" was "a cop or undercover cop or anything to do with any

law enforcement agency." "Alexis" replied: "omg.. ur so funny NO im not a cop LOL."

       Mendez asked "Alexis" about her prior sexual experience and whether she had

ever "done this before"--i.e., "getting on CL and email random guys." She told him that

she had once before. Mendez asked what "Alexis" had in mind, and "Alexis" deferred,

saying: "im pretty down 4 whatev if we click rite." Mendez asked for another picture,

and "Alexis" sent one. She said she did not have any full-body pictures to send but

mentioned having a "down there pic." Mendez referenced that picture several different

times, but "Alexis" did not send it.

       Mendez asked "Alexis" what attracted her to older men. They spoke a bit about

her high school and her parents' divorce. "Alexis" asked what Mendez was into,

disclosing that she was not into "being treated mean or any butt stuff." Mendez replied

that he was "not like that" and was "a cool chill guy that like[d] to have fun" and "make

ppl have a good time and laugh." Mendez told "Alexis" that she was "very cool...sucks




                                             3
your 14 tho!" He asked her, "So what do you like to do for fun? Or with a guy???"

"Alexis" replied: "if ur lettin me choose im mor n2 oral than anything else lol."

       At that point, the two switched to text messages. Mendez initiated plans for the

two to meet, asking, "So when would you like to hang out or what??" Alexis replied that

she could sneak out later that night, after her mom went to bed. Mendez seemed

surprised and replied: "it's just crazy Quick." "Alexis" again offered him a chance to

back out, saying: "we dont have 2 " and "we can wait 4 sum other time if u want."

Mendez replied, "It's up to you? I'm like I don't mind I'm down for whatevs lol." Mendez

asked "Alexis" to suggest a meeting place and asked what they would do when they met.

"Alexis" replied that she was "cool with oral if its in the car."

       A short while later, Mendez asked, "Why are you so willing to meet up and not

creeped out or nervous or anything like that lol I know I am lol." "Alexis" gave Mendez

another chance to back out, saying "lets jus not meet up if ur sketchd out about it no fun

lol." Mendez replied, "Nah it's cool I just never done this before with a girl your age and

all lol but we can still meet up." "Alexis" said, "yeh thas cool jus dont want u 2 if u

don't," but Mendez persisted, saying "I'm down if you're down" and confirmed that they

were "still up for tonight." Mendez joked at one point that he expected Chris Hansen, the

host of the TV Show "To Catch a Predator," to "pop out somewhere," but Detective

Jackson pretended not to understand the reference. Mendez told "Alexis" that she was

"so different from other teens."




                                               4
       Mendez agreed to meet "Alexis" at a grocery store parking lot that night, after her

mother went to bed. A few hours later, Mendez asked if they were still planning to meet,

saying that he would otherwise go shopping. "Alexis" again offered to meet Mendez

another time, but Mendez said that he could shop after they met.

       Around midnight, Mendez left his house, drove to the meeting spot, and made

several loops around the parking lot. A surveillance team, planted outside his residence,

followed him there. Mendez circled the lot a few times but drove away when he could

not find someone matching "Alexis'" description. Police officers stopped his car shortly

after Mendez left the parking lot. They arrested him and seized the iPod Touch used to

communicate with "Alexis." Officers read Mendez his Miranda rights (Miranda v.

Arizona (1966) 384 U.S. 436), but he decided to speak with Detective Jackson.

       In April 2013, the San Diego County District Attorney filed an information

charging Mendez with four counts: attending and arranging an illicit meeting with a

minor, in violation of section 288.4(b) (count 1); contacting a minor with the intent to

commit a sexual offense, in violation of section 288.3(a) (count 2); attempting a lewd act

upon a child 14 or 15 years of age, in violation of sections 288(c)(1) and 664 (count 3);

and attempted oral copulation by one over 21 on a person under 16, in violation of

sections 288a(b)(2) and 664 (count 4). The trial court scheduled a jury trial for April 7,

2014. Prior to trial, the Court granted the People's motion to dismiss counts 3 and 4.




                                             5
         At trial, the jury heard from Detective Jackson, who testified about his training

and methods in investigating online child exploitation cases. He testified that Mendez

was extremely persistent compared to his past cases, wanting to meet "Alexis" despite

repeated chances to walk away. Detective Jackson agreed that there was a Craigslist

disclaimer that users must be 18 years old and that Mendez's initial ad was "very tame

compared to the other ones" on Craigslist. However, he testified that "nine out of ten

times," when he responds with a specific age, as "Alexis" did in saying that she was 14,

"that's where the communication stops." He testified that Mendez was the "driving force"

behind the communications, initiating the request to meet and repeatedly asking when

and where to meet. On cross-examination, Detective Jackson acknowledged that

"Alexis" was the first to mention oral sex, but he testified that this remark had to be

viewed in context of Mendez's inherently sexual questions. Detective Jackson testified

that after his arrest, Mendez told him that he believed he was speaking to a 14-year-old

girl. Detective Jackson denied ever having told Mendez that "Alexis" was an underage

decoy.

         The jury also heard from Mendez. Mendez testified that he had recently separated

from his wife and had placed the ad looking for a relationship with a woman, not to

interact with a minor. He explained that he was sexually inexperienced, having had only

two sexual partners and no prior one-night stands, and that he had not been intimate with

his wife. Mendez testified that he never believed that "Alexis" was 14, based on the




                                               6
photo she sent. He maintained that he was "role playing" when he made references to

"Alexis" being 14 and spoke about her high school and sneaking out after dark. He

testified that he was surprised by how fast "Alexis" wanted to meet him, stating that he

did not want to move that fast. Mendez testified that he was not physically attracted to

"Alexis" in her photos but agreed to meet her in person because he did not want to be

rude. Mendez denied stating that he planned to meet a 14-year-old girl after his arrest,

testifying that he had not thought of "Alexis" as a 14-year-old until Detective Jackson

informed him that she was an underage decoy.

       On April 9, 2014, a jury convicted Mendez on counts 1 and 2. The court instructed

the jury on Mendez's entrapment defense. On May 7 the court sentenced Mendez to 60

days in custody, with credit for time served, and placed him on probation for three years.

Among the conditions of probation was the requirement that Mendez register as a sex

offender pursuant to section 290.

       Mendez filed a timely notice of appeal. He appeals on only one ground: that there

was insufficient evidence to sustain his conviction because he was entrapped as a matter

of law. Specifically, Mendez argues on appeal that Detective Jackson engaged in

conduct that would have induced a normally law-abiding person to commit the crimes

with which he was charged. For the reasons discussed below, we disagree.




                                             7
                                 STANDARD OF REVIEW

       When we review an appeal that is based on insufficient evidence to support a

conviction, we apply the substantial evidence standard of review. Under that standard,

we review the entire record in the light most favorable to the trial court judgment. We

draw all reasonable inferences in favor of the judgment, but we do not weigh the

evidence nor make credibility determinations. " 'Conflicts and even testimony [that] is

subject to justifiable suspicion do not justify the reversal of a judgment, for it is the

exclusive province of the trial judge or jury to determine the credibility of a witness and

the truth or falsity of the facts upon which a determination depends.' " (People v.

Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is

unwarranted unless it appears "that upon no hypothesis whatever is there sufficient

substantial evidence to support" ' the jury's verdict." (Ibid.)

                                        DISCUSSION

                                        A. Entrapment

       "In California, the test for entrapment focuses on the police conduct and is

objective." (People v. Watson (2000) 22 Cal.4th 220, 223.) "[T]he proper test of

entrapment in California is the following: was the conduct of the law enforcement agent

likely to induce a normally law-abiding person to commit the offense? . . . Official

conduct that does no more than offer that opportunity to the suspect--for example, a

decoy program--is therefore permissible; but it is impermissible for the police or their




                                               8
agents to pressure the suspect by overbearing conduct such as badgering, cajoling,

importuning, or other affirmative acts likely to induce a normally law-abiding person to

commit the crime." (People v. Barraza (1979) 23 Cal.3d 675, 689-690.)2 The California

standard presumes that a law-abiding person would "normally resist the temptation to

commit a crime presented by the simple opportunity to act unlawfully." (Id. at p. 690.)

A defendant's lack of predisposition to commit the crime does not establish entrapment.

(Id. at pp. 690-691.)3

       At trial, the jury was fully and fairly instructed on the defense of entrapment and,

by its verdict, rejected it. Mendez nonetheless contends that he was entrapped as a matter

of law. We disagree.

       "An appellate court will only find entrapment as a matter of law where the

evidence is so compelling and uncontradicted the jury could draw no other reasonable

inference." (People v. Thoi (1989) 213 Cal.App.3d 689, 694.) Here, we conclude that a


2     Mendez argues that entrapment requires only "an 'offer' which fosters a crime
which would not otherwise have occurred." This misstates the standard under California
law. (People v. Barraza, supra, 23 Cal.3d at p. 690.)

3       Mendez cites United States v. Poehlman (9th Cir. 2000) 217 F.3d 692 (Poehlman),
and Jacobson v. United States (1992) 503 U.S. 540 (Jacobson), relying on what he
perceives to be the federal standard for entrapment. However, this Court relies on the
California standard. (People v. Barraza, supra, 23 Cal.3d at pp. 690-691 ["[U]nder this
test such matters as the character of the suspect, his predisposition to commit the offense,
and his subjective intent are irrelevant"]; People v. Benford (1959) 53 Cal.2d 1, 12
["Since the prosecution in California cannot prove prior criminality of defendant to
overcome the defense of entrapment, the absence of such evidence here does not in and
of itself have the significance which it had under federal law"].)



                                             9
reasonable jury could find that Detective Jackson did "no more than offer that

opportunity" for Mendez to arrange to meet with someone he believed to be a 14-year-old

girl. Consequently, we cannot conclude that Mendez was entrapped as a matter of law.

       Mendez raised the entrapment defense before the trial court, and the court

instructed the jury on entrapment with CALCRIM No. 3408. There were no objections

made at the trial court or on appeal as to the jury instructions found in CALCRIM No.

3408. The jury weighed Mendez's testimony against Detective Jackson's on the issue of

entrapment and reviewed the full string of text and e-mail communications between

Mendez and "Alexis." Mendez never challenged the accuracy of the transcripts of

messages between him and "Alexis." The jury convicted Mendez on both counts,

necessarily finding that Mendez had not met his burden to prove entrapment.

       Throughout their text and e-mail conversations, Mendez made repeated references

to "Alexis" being 14—for example, remarking "Omg! that's real young!" when she

revealed her age; "sucks your 14 tho;!" "I just never done this before with a girl your age

and all lol but we can still meet up;" "U are so different from other teens its crazy;" and

"whY do you like old guys? It's not common for young teens to like older guys." Mendez

asked "Alexis" about her high school and her prior sexual experience and planned for her

to sneak out to meet after her mom went to sleep. He asked whether "Alexis" was "a cop

or undercover cop" and joked that he expected Chris Hansen, the host of the TV Show

"To Catch a Predator," to "pop out somewhere." The jury heard Mendez's testimony that




                                             10
he never believed "Alexis" to be 14, but this was contradicted by his admission to

Detective Jackson that he was "going to meet this 14-year-old girl" to warn her "that it's

probably not a good idea for 14-year-old girls to be meeting with people that they meet

on Craigslist."4

       Detective Jackson, posing as "Alexis" rebuffed Mendez at least six times, offering

him several chances to back away. For example, after Mendez expressed surprise at her

age, "Alexis" offered to leave him alone, saying "thas cool i wont b a pest sry." Mendez

chose to continue the conversation, saying "Nah no worries...your not a prest [sic]" and

asking "Alexis" to send a picture. This happened multiple times during their

conversation: "Alexis" would offer Mendez a chance to back away, but Mendez chose to

re-engage.5 One hour before they were scheduled to meet, "Alexis" gave Mendez a final

chance to back out, but Mendez declined and left his house to meet "Alexis" at the


4      Mendez alludes to the fact that "Alexis" appeared much older than 14 in her
photographs. To the extent this is offered in support of his entrapment defense, it is
unavailing. (See, e.g., Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994)
7 Cal.4th 561, 568-570 [alcohol vendor not entrapped by the use of underage, but mature-
looking decoys because "the seller cannot avoid liability by relying solely on the
appearance of the buyer," and "the decoys simply bought beer and wine, without
attempting to pressure or encourage the sales in any way"].)

5       Specifically after that first rebuff, "Alexis" told Mendez: "if ur sketch tho i wont
bug u seroiusly im not n2 makin any drama" (3:45 p.m.); "we dont hav 2 lol you seem all
surprised" (5:31 p.m.); "we can wait 4 sum other time if u want" (5:33 p.m.); "lets jus not
meet up if ur sketchd out about it thas no fun" (7:25 p.m.); "yeh thas cool jus dont want u
2 if u dont" (7:42 p.m.); "im cool with meetin up but if yer shoppin n stuff then we can
sum othrr time i guesd" (10:32 p.m.); "oh u sounded like u didnt want 2 an wer goin
shoppin" (10:47 p.m.).



                                             11
arranged meeting spot. Detective Jackson testified that this was the most he has had to

rebuff someone in the course of an investigation and that Mendez was "probably the most

persistent of all the cases I have worked with [in terms of] the level of repetitive

communication with us." He testified that he perceived Mendez, not "Alexis," to be the

"driving force" of the conversation.

       The jury heard evidence that while "Alexis" was the first to mention oral sex, this

remark responded to an inherently sexual line of questioning from Mendez. Twelve

minutes after "Alexis" voiced her preference for oral sex (and less than 24 hours after

their first communication), Mendez asked, "So when would you like to hang out or

what??" The jury heard uncontroverted evidence that Mendez, not Detective Jackson,

initiated the plan to meet with someone posing as a minor. Mendez repeatedly asked for

details on when and where to meet—by Detective Jackson's count, he asked "Alexis" for

this information no less than 45 times. After "Alexis" mentioned having a "down there"

picture, Mendez brought it up numerous times, offering to send another picture "if you

send me that one" and saying "Sooo I guess I won't be getting that pic huh?" when

"Alexis" did not send it. (Mendez testified at trial that he was referencing a full-body

picture, not a nude picture.)

       Viewing the record in the light most favorable to the judgment, as we must, a

reasonable jury could have found that Detective Jackson, at most, extended an

opportunity for Mendez to seek sexual relations with someone he believed to be a 14-




                                             12
year-old girl. The number of opportunities afforded to Mendez to back out does not

necessitate the conclusion that the police caused a normally law-abiding person to

commit a crime. There is no evidence in the record to support that "Alexis" badgered or

cajoled Mendez, preyed on his sympathies or insecurities, induced him with guarantees

that he would not get caught,6 or took any "other affirmative acts likely to induce a

normally law-abiding person to commit the crime." (People v. Barraza, supra, 23 Cal.3d

at p. 690.) Indeed, while the jury heard evidence that Mendez was sexually

inexperienced and had recently separated from his wife, Mendez never disclosed these

facts, or any other personal details, to "Alexis."7

       In short, while a different jury might have reached a different conclusion, there is

sufficient evidence in the record to support this jury's conclusion that the police did not

entrap Mendez. (See, e.g., People v. Federico (2011) 191 Cal.App.4th 1418, 1423 [no

entrapment where the decoy "merely provided an opportunity for defendant to spend time

6     The denial by "Alexis" that she was an undercover agent does not constitute such a
guarantee. (People v. Barraza, supra, 23 Cal.3d at p. 690, fn. 4 ["There will be no
entrapment, however, when the official conduct is found to have gone no further than
necessary to assure the suspect that he is not being 'set-up' "].)

7       Mendez's federal cases, Poehlman and Jacobson, are also distinguishable on this
basis, Poehlman involved six months of e-mail correspondence between defendant and a
decoy, who pressed defendant to serve as her daughter's sexual mentor as a condition for
their further communication and companionship. (Poehlman, supra, 217 F.3d at p. 702.)
Jacobson involved 26 months of repeated mailings and communications from
government agents and fictitious organizations to lure defendant into receiving child
pornography. (Jacobson, supra, 503 U.S. at p. 548.) By contrast, Mendez asked to meet
"Alexis" after less than 24 hours of correspondence and persisted in wanting to meet
"Alexis" despite several opportunities to back out.



                                             13
alone with a 12-year-old girl in an empty house"].) Here, as in People v. Peppars (1983)

140 Cal.App.3d 677, "[t]he trial court properly submitted the issue of entrapment to the

trier of fact, and it cannot be said that there is no substantial evidence to support the

implied finding of the jury that the conduct of [the police] was not likely to induce a

normally law-abiding citizen . . . to commit [the crime]." (Id. at p. 685.)

                             B. Testimony of Detective Jackson

       Although not clearly articulated in the briefs, Mendez appears to challenge the

trial testimony of Detective Jackson about the TV show, "To Catch a Predator."

       At trial, Detective Jackson testified about his extensive training in investigating

online child exploitation cases. He testified on direct examination that he applied "a set

protocol and manner" to avoid the legal pitfalls and ramifications of entrapment. In

providing this testimony, Detective Jackson referenced "To Catch a Predator," clarifying

that the TV show used techniques geared for ratings, whereas his investigations aimed to

comply with certain legal requirements. Defense counsel objected on relevance grounds,

but the court overruled. Later into his direct examination, the court ruled that entrapment

was an issue for the jury but allowed Detective Jackson to testify as to his mental

impressions in conducting his investigation.

       On cross-examination, defense counsel asked Detective Jackson a series of

questions about "To Catch a Predator," ostensibly trying to demonstrate that his methods

were similar to the questionable methods used on the show. The court sustained the




                                              14
prosecution's objection, ruling that it saw no connection between the TV show and

Detective Jackson's investigation and was "disinclined" to allow a trial of "To Catch a

Predator" to unfold within this trial.8

       On appeal, Mendez appears to argue that Detective Jackson's testimony about "To

Catch a Predator" demonstrates bias, tarnishing his whole opinion. Specifically, Mendez

contends that "the jury's consideration of the evidence was tainted [by] Detective

Jackson's emphasis on his own self-touted lack of entrapment, as contrasted with To

Catch a Predator." Therefore, he argues, Detective Jackson's testimony "was entitled to

no weight, as an opinion of no entrapment." Mendez contends that "[n]ot just the

detective's entrapment opinion, but to some degree all of his testimony, was at least

slightly tarnished by his biased interjection of matters he must have known were not

proper. . . . It was really unfair for him to use To Catch a Predator to bolster his

credibility, then stonewall reasonable defense cross-examination on just how his practices

varied from those on the suspect show."




8       It is not clear whether Mendez intends to challenge this evidentiary ruling on
appeal. In any event, the trial court did not abuse its discretion in sustaining the
prosecution's objection to cross-examination questions about "To Catch a Predator." The
court acted within its discretion under Evidence Code section 352 to exclude evidence of
marginal impeachment value that would entail the undue consumption of time. (People
v. Pearson (2013) 56 Cal.4th 393, 455 ["Although we have said that '[c]ross-examination
to test the credibility of a prosecuting witness in a criminal case should be given wide
latitude' . . . , such latitude does not 'prevent the trial court from imposing reasonable
limits on defense counsel's inquiry based on concerns about harassment, confusion of the
issues, or relevance' "].)



                                              15
        At the outset, this argument misstates the standard. Under California law, the

inquiry on appeal is not whether the prosecution overcame the defendant's entrapment

defense (e.g., by providing evidence of no entrapment), but rather whether the evidence

shows that entrapment occurred as a matter of law. (See, e.g., People v. Benford, supra,

53 Cal.2d at p. 12 ["Our inquiry is not, as defendant's argument suggests, whether the

prosecution has 'overcome the defense of entrapment' . . . but, as he states elsewhere in

his briefs, whether the prosecution evidence as a matter of law shows entrapment"].)

        Furthermore, Mendez appears to be asking this Court to reweigh the credibility of

Detective Jackson on appeal. This we cannot do. (People v. Zamudio, supra, 43 Cal.4th

at p. 357 [on review for substantial evidence, the appellate court defers to the trial court

on witness credibility]; People v. Jones (1990) 51 Cal.3d 294, 314-315 ["it is not a proper

appellate function to reassess the credibility of the witnesses"].) "To warrant the

rejection of the statements given by a witness who has been believed by a trial court,

there must exist either a physical impossibility that they are true, or their falsity must be

apparent without resorting to inferences or deductions." (People v. Kelley (1984)

158 Cal.App.3d 1085, 1101; People v. Hovarter (2008) 44 Cal.4th 983, 996 ["Except

in . . . rare instances of demonstrable falsity, doubts about the credibility of the in-court

witness should be left for the jury's resolution"].) We cannot make such a determination

here.




                                              16
                                DISPOSITION

    The judgment is affirmed.


                                              HUFFMAN, J.

WE CONCUR:



          McCONNELL, P. J.



                   BENKE, J.




                                    17
