Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB409718
Duffy, J.
Defendant Kirk Hartley Lesser was convicted following a jury trial of one count of attempted distribution of harmful matter to a minor over the Internet, and one count of an attempted lewd or lascivious act on a minor under 14. The charges arose out of an undercover operation in which a police officer created an on-line identity of a 13-year- old girl logging onto a Yahoo! Messenger instant messaging Website that resulted in defendant engaging in sexually explicit communications with the fictitious girl. The court suspended imposition of the sentence and placed defendant on three years formal probation with the condition that he serve nine months in county jail.
Defendant contends that the court abused its discretion in the admission of computer printouts of the contents of the Internet communications between defendant and the fictitious girl. He contends further that there was insufficient evidence to support the conviction of an attempted lewd act on a minor. We conclude that the court did not abuse its discretion in admitting the computer printouts and that there was sufficient evidence to support the attempted lewd act on a minor conviction. We therefore affirm the judgment.
The prosecution called three witnesses on its behalf; the defense called no witnesses. We resolve factual conflicts in support of the verdict. (People v. Holt (1997) 15 Cal.4th 619, 667-668.)
Officer Nathaniel Wandruff is a police officer with the Mountain View Police Department; at the time of trial in 2008, he had been so employed for approximately 11 years. As of August 2004, he was working as a detective in the suppression and support unit, which included undercover operations. Included among his duties was the investigation of sexual exploitation of children over the Internet.
All dates are 2004 unless otherwise indicated.
On the afternoon of August 17, Officer Wandruff, in his official capacity, logged onto a chat room through Yahoo! Messenger. In doing so, he established a fictitious profile of Sarah Kline, using the screen name, “Calisarah13.” (The fictitious person created by Officer Wandruff is hereafter referred to as Sarah.) In the public profile Officer Wandruff created for Yahoo! Messenger, Sarah was described as a 13-year-old girl living in Mountain View with shopping and swimming as her hobbies. Within minutes of logging on, Sarah received an instant message from an individual using the screen name “kirkfromca.” (Since defendant later admitted during questioning by the police that he was the person with the screen name “kirkfromca” who had on-line chat sessions with Sarah, we hereafter refer to the communications from “kirkfromca” as originating from defendant.) Defendant was the person who initiated the instant message (IM) communication with Sarah, and it was an unprompted, unsolicited IM. Over the course of two weeks, defendant and Sarah had six separate chat sessions by using the IM feature of Yahoo! Messenger.
About three minutes into the August 17 chat session, defendant wrote to Sarah, “ ‘I like to drink, work out, make a gal smile, feel good.’ ” He wrote soon afterward, “ ‘Like kissin’, neck/back rubs[?]’ ” Sarah told defendant that she was 13 years old. Defendant responded that he was 24, and shortly afterward indicated he was 25. (He was actually 32 at the time.) He asked Sarah if she liked older men. During the chat session, defendant, without prompting, sent to Sarah a picture of himself dressed in a tuxedo. He asked Sarah if she drank alcohol. During the chat, defendant asked Sarah if she liked to drink; “ ‘kicking it in [the] hot tub with music, someone to massage/relax [her]’ ”; being kissed on her neck, ears, and down the back of her legs; “ ‘being kissed all over to see what makes [her] shiver with anticipation.’ ” He asked Sarah to describe “ ‘the craziest thing [she had] done.’ ” Defendant also asked Sarah if he could meet her to kiss her.
During the second chat session on August 19, defendant asked Sarah if she needed a kiss. Sarah responded with an emoticon signifying a person blushing. He again asked her if she would like kisses on the back of her legs. Defendant also asked Sarah again to describe the “craziest thing” she had ever done. During the chat, Sarah again told defendant that she was 13. He told her that “ ‘we both need to be careful’ ” and they agreed not to tell anyone about their communications. Defendant wrote that he lived with a female roommate who was not his girlfriend. (Defendant told Officer Wandruff during his interview after being arrested that he was married.) Later in the chat, defendant asked whether she was ever at home by herself, and after Sarah essentially told him she was not, defendant wrote, “ ‘[G]uess we would need to go somewhere if we ever me[e]t and hit it off.’ ” Defendant asked Sarah about the extent of her sexual experience; Sarah responded in one of the chats that she had had sex once, but that it wasn’t a good experience for her. Defendant discussed specific physical ways that he hoped to be able to make Sarah feel good and to show her “ ‘how a guy should treat [her] sensually.’ ” He also suggested that he could show her “ ‘how to make a guy feel good’ ” and that she could “ ‘use [him] as a training friend.’ ” Defendant also asked Sarah to give him a physical description of herself. During the chat, defendant sent Sarah a picture of himself without his shirt on, reclining and appearing to have his hand near his crotch. He also asked her, “ ‘So you wouldn’t mind seeing me naked in person, eh?’ ”
An emoticon is “ ’a group of keyboard characters... that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications (as e-mail).’ [Citation.]” (U.S. v. Cochran (7th Cir.2008) 534 F.3d 631, 632, fn. 1.)
The third chat session occurred on August 20. Defendant asked Sarah if she still wanted to meet him. She replied that she did, but that she was “ ‘a little nervous’ ” and did not want to get “ ‘busted.’ ” Defendant replied, “ ‘And I DO?’ ” (Original capitalization.) He went on to write, “ ‘You realize I could go to jail?’ ” Similarly, he wrote, “ ‘Even kissing you can land me in jail.’ ” Defendant told Sarah that they could get a motel room if she liked and that he would pay for it. He wrote: “ ‘[I c]an lay you on the bed and just kiss you all over’ ” and “ ‘[s]lowly strip your clothes off and touch you, caress you.’ ” He also asked her whether she was a virgin and assured her that he had been tested.
In the fourth chat session on August 31, defendant indicated that they could meet, he could bring wine coolers, and he could “ ‘give [Sarah] a rub down, ’ ” “ ‘kick back in there [the hotel room] for a couple of hours and drink and kiss and stuff.’ ” He told her that they could get a hotel room and that he would pay for it. Sarah expressed concerns about pregnancy and defendant responded that he would bring condoms. During the chat, defendant asked Sarah, “ ‘Are you really not the police?’ ” Sarah responded, “ ‘[L]ol. [Laugh out loud.]... [¶] I’m 13 and I’m a girl.’ ” Defendant asked if she wanted him “ ‘to strip naked first, ’ ” whether she would want to touch him, and whether she “ ‘want[ed him] hard.’ ” Defendant asked her about what sexual practices she wanted to learn, pressed her for specifics, and asked what she would like him to do with her. He told Sarah that he could “ ‘be a teacher’ ” to her. They discussed meeting after Sarah got out of school near the baseball diamond at McKelvey Park in Mountain View. Sarah wrote, “I could just wait till I see you and then run out and get in your car so no one sees.’ ” He wrote to her that she should not run toward the car when they met, because doing so would “ ‘make[] a scene.’ ” Defendant suggested when they met that Sarah wear a strapless top and thong underwear. He asked her if she wanted him to strip off her clothes or if she wanted to do it. At the end of the chat, defendant asked Sarah, “ ’You horny?’ ” and described how he would sexually arouse her when they met: “ ’I want to taste your lips, your tongue, kiss your neck, your ears, kiss down your breasts, your stomach, around your panties and down [your] leg. Move your panties aside, and slowly run my tongue around your entrance. Lightly run my tongue inside you, lightly flicking at your clit, building up the heat in you as I flick faster and my hands brush over your nipples.’ ”
Defendant and Sarah had their fifth chat session on September 1. They firmed up their plans to meet the next day at 3:30 p.m. after Sarah got out of school at the parking lot next to the baseball diamond at McKelvey Park. Sarah wrote that she might be a little late because she had to walk to the park from school. In response to Sarah’s concern about getting “ ’busted, ’ ” defendant wrote, “ ‘Well, you get grounded. I go to jail.’ ” He asked her if [she] “ ‘want[ed] to be naked with [him].’ ” Defendant asked her “if she want[ed] to give him a hand job” or “ ‘a blow job.’ ” They chatted about what Sarah would wear. She wrote that she did not own thong underwear, and defendant responded, “ ‘Okay. Just don’t wear any undies, then.’ ”
On September 2, defendant and Sarah began their sixth chat session at around noon. They confirmed that they were going to meet later in the day at approximately 3:30 p.m. Defendant gave Sarah his name as “Kirk Robertson.” Defendant directed Sarah to turn off the inherent archiving feature of Yahoo! Messenger on her computer so that there would be no permanent record of their communications.
In preparation for apprehending defendant at McKelvey Park, Officer Wandruff determined defendant’s real name from his e-mail account. He obtained information about defendant from the Department of Motor Vehicles database. Officer Wandruff obtained a photograph of defendant; it appeared to match the person depicted in the photograph sent to Sarah. The officer also obtained defendant’s home address and a description of a 2004 Mitsubishi convertible that was registered in defendant’s name.
On September 2, Officer Wandruff assembled a team of police officers in at least three unmarked cars to assist in the surveillance and arrest operation. He operated a mobile unit while at least two other cars were posted at fixed locations near the park. Officer Wandruff observed a Mitsubishi convertible enter the area and observed that the driver appeared to be defendant. The officer followed the Mitsubishi as it drove by the front of the park on Park Avenue, made a right turn on Miramonte, made a U-turn, and then turned back onto Park Avenue. Based upon the driving behavior, Officer Wandruff concluded that the Mitsubishi driver was nervous. Defendant then entered the parking lot at the baseball diamond in McKelvey Park and parked the Mitsubishi. He arrived at the park at approximately 3:45 p.m. Officer Wandruff directed his team to move in and they placed defendant under arrest. During a search of defendant’s car, Mountain View Police Officer Ruben Gonzalez located a credit card slip for a transaction at a Sunnyvale motel. Defendant was taken to the Mountain View Police Department.
Officer Wandruff interviewed defendant at the department for approximately two and one-half hours. Defendant admitted that he had gone into the Yahoo! Messenger chat room and initiated contact with Sarah on August 17. He acknowledged that he was “kirkfromca” and was the person responsible for all of the chats. He told the officer that his work was located in North San Jose. (It is apparent from the record that some or all of the chats took place in the afternoon while defendant was at work.) Defendant told Officer Wandruff that he had located Sarah from the Yahoo! member directory and that he recalled seeing that the profile indicated that she was 13, lived in Mountain View, and that her hobbies were swimming and shopping. He also admitted to the officer that he was the party who initiated any sexually explicit communications with Sarah and that he had sent the picture of himself without his shirt to her over the Internet. He told Officer Wandruff that he thought the photograph was sexually suggestive.
During the interview, defendant admitted to Officer Wandruff that he had rented a motel room in Sunnyvale on September 2 before going to McKelvey Park. Officer Wandruff told defendant toward the end of the interview that he had invented Sarah’s identity. Before the officer did so, defendant had indicated that he had believed that the person with the user name “calisarah13” was a 13-year-old girl from Mountain View. The officer also asked whether defendant had previously contacted underage girls over the Internet; defendant said that he had contacted a 16-year-old girl in 2001 or 2002, that they had met as a result of the contact, and that the two had kissed.
Kamlesh Patel, the manager of the Vagabond Motel in Sunnyvale, confirmed that defendant paid for a motel room with a credit card on September 2 at 3:23 p.m. Patel testified that defendant noted in the check-in folio his name and that two adults would be staying in the room.
PROCEDURAL BACKGROUND
Defendant was charged by information with two felony offenses, namely the attempted distribution of harmful matter to a minor over the Internet (Pen. Code, §§ 664/288.2, subd. (b); count 1), and an attempted lewd or lascivious act on a minor under 14 (§§ 664/288, subd. (a); count 2).
All further statutory references are to the Penal Code unless otherwise stated.
On August 7, 2008, the jury convicted defendant on both counts. On March 26, 2009, the court suspended imposition of sentence and ordered that defendant be placed on three-year probation on the condition that he serve nine months in the county jail. Defendant filed a timely notice of appeal.
Defendant filed motion for new trial, or, in the alternative, to modify the verdict, which the court denied in February 2009.
DISCUSSION
I. Admission of Computer Printouts of Chat Sessions
A. Background
As noted above, Officer Wandruff testified that he, posing as the 13-year-old Sarah, participated with defendant in six chat sessions over the Internet between August 17 and September 2. He testified that in order to preserve the evidence of these chats, he did two things. Officer Wandruff enabled an archiving feature of Yahoo! Messenger to preserve a record of the chats. He also made “[his] own copy of the chat by very simply copying and pasting the [contents] of the chat into a [W]ord document [which was] saved on the hard disk as well.” The Microsoft Word documents that the officer created in copying each of the six chats were introduced into evidence as separate exhibits. Officer Wandruff testified that the exhibits constituted complete and accurate copies of the six chats. He indicated, however, that the introductory line at the beginning of each chat was dropped unintentionally when he copied the chats into Word documents. Over defendant’s objections based upon lack of foundation, hearsay, and multiple hearsay, the court admitted the six exhibits.
Officer Wandruff was extensively cross-examined by defense counsel concerning the manner in which he saved the six chats to his computer and produced copies of the text of those chats from his computer for trial. There was extensive testimony from Officer Wandruff concerning the fact that when he testified at the preliminary examination in 2005, he produced the text from the six chats that differed from those produced at trial in that the former records omitted the emoticons that were interspersed throughout the text of the chats. He testified that in 2005 when he produced the computer printouts of the texts from the chats for the preliminary hearing, he was unable from a technical standpoint to print the text with the emoticons. At the request of the prosecutor, in preparation for the trial in 2008, Officer Wandruff, with the help of IT personnel, reproduced the six chats from his computer with the emoticons included in the text. With technical support installing a particular program, Snagit, onto his computer, the officer was able to produce computer printouts of the six chats with the entire text and the emoticons (except for the introductory line of each chat). As an example, in comparing the documents used during the preliminary examination with those used at trial, Officer Wandruff testified that the printout of the text of the August 17 (first) chat used at the preliminary examination was identical to the printout of that chat used at trial, except that the latter exhibit included the emoticons.
B. Discussion of Claim of Error
Defendant’s argument that the computer printouts of the chats were inadmissible is essentially twofold. First, he contends that the printouts were unreliable and therefore the prosecution failed to establish a foundation for their admission. Second, he asserts that they were hearsay and that they were not admissible under any recognized hearsay exception.
At the outset, we note that a trial court’s ruling admitting or excluding evidence is reviewed for abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 654.) As defendant here concedes, this standard of review applies to the court’s admission or exclusion of documentary evidence. (People v. Weaver (2001) 26 Cal.4th 876, 933-934; People v. Hernandez (1997) 55 Cal.App.4th 225, 239-240 (Hernandez).) Likewise, “a trial court’s ruling on the sufficiency of the foundational evidence [presented by the proponent of proffered evidence is reviewed] under an abuse of discretion standard. [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 165; see also People v. Cornwell (2005) 37 Cal.4th 50, 81, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) With these principles in mind, we address defendant’s claims below.
1. Foundation
In order to be admitted into evidence, a writing must be authenticated (Evid. Code, § 1401, subd. (a)), and such authentication may occur either by “(a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) “Authentication simply requires a party to establish as a preliminary fact the genuineness and authenticity of the writing. [Citation.] Authentication can be established by any one of a variety of means.” (Interinsurance Exchange v. Velji (1975) 44 Cal.App.3d 310, 318.) Where sufficient evidence is introduced to authenticate the document, the court should admit it, notwithstanding other evidence that supports an inference that the document is not what it is proffered to be; under such circumstances, the document should be admitted into evidence and the trier of fact should determine ultimately the document’s authenticity. (McAllister v. George (1977) 73 Cal.App.3d 258, 262-263.)
Defendant claims that the computer printouts were unreliable and inadmissible. He asserts that Officer Wandruff’s method of copying and pasting the contents of each of the chats in creating a Word document to preserve the text “was not only ambiguous, but was clearly unreliable.” This contention is, in turn, based upon (1) Officer Wandruff’s use in the 2005 preliminary examination of computer printouts of the chats without emoticons; (2) the officer’s testimony that his level of technical expertise was insufficient for him to explain why he could not print out the emoticons in 2005; and (3) the fact that the introductory lines from the chats were lost. We reject defendant’s contention that the court abused its discretion in implicitly finding sufficient foundation under Evidence Code section 1400 to admit the computer printouts.
First, the fact that Officer Wandruff’s 2005 preliminary examination testimony was based upon computer printouts that omitted the emoticons used in the chats is irrelevant to the question of whether a proper foundation was presented in the 2008 trial for the introduction of a different set of computer printouts that included the emoticons. Second, Officer Wandruff’s inability to explain why the printouts he produced in 2005 did not include the emoticons is likewise irrelevant to whether the prosecution presented a sufficient foundation to admit the printouts at trial that did include the emoticons. Third, the fact that the introductory lines for the chats could not be preserved in the computer printouts-which Officer Wandruff testified otherwise accurately and completely set forth the individual chats-did not negate their authentication.
Jazayeri v. Mao (2009) 174 Cal.App.4th 301 is instructive. There, one issue on appeal concerned the admissibility of certain records of the United States Department of Agriculture (USDA) known as “poultry condemnation certificates (PCC’s)” (id. at p. 306) that were excluded by the trial court. The court rejected the respondents’ contention on appeal-one that they did not raise at trial-that the PCC’s had not been properly authenticated under Evidence Code 1400 because a veterinarian testified on cross-examination to some uncertainty that the PCC’s “ ‘were true and correct copies of the official USDA records.’ ” (Jazayeri, at p. 320.) Consistently with the principle in McAllister v. George, supra, 73 Cal.App.3d at pages 262-263 enunciated above, the court reasoned: “Although writings must be authenticated before they are received into evidence or before secondary evidence of their contents may be received [citation], a document is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be [citation]. As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility. [Citations.] As the PCC’s provided in response to Jazayeri’s [Freedom of Information Act] request were properly authenticated, excluding them under [Evidence Code] section 1401 would have been improper even had respondents raised an objection on this ground.” (Jazayeri, at p. 321.)
Similarly, here the prosecution, through Officer Wandruff, offered sufficient evidence to authenticate the computer printouts, including evidence of the method by which he preserved the text of each chat by creating separate Word documents, and his testimony that the printouts were an accurate and complete (save for the introductory lines) representation of the text of the six chats. Defendant’s attacks on the printouts-based upon the absence of the introductory lines, the historical absence of the emoticons in versions of the printouts used in the preliminary examination, and Officer Wandruff’s lack of technical expertise-all go to the weight of the evidence, not its admissibility. Indeed, a key theme of the defense, both in its cross-examination of Officer Wandruff and in its closing argument, was the claimed unreliability and inaccuracy of the computer printouts. The court did not abuse its discretion in admitting the six computer printouts over the foundational objection of the defense.
2. Hearsay
Defendant also contends that the court abused its discretion in admitting the computer printouts into evidence over his hearsay and multiple-hearsay objections. He argues that because the computer printouts introduced at trial were not a complete replica of the chat sessions as contained on the Yahoo! Messenger computer, they are “unreliable and inadmissible hearsay.” Citing Hernandez, supra, 55 Cal.App.4th 225, defendant urges that the mere fact that the printouts originated from data in Officer Wandruff’s “computer does not transform hearsay into non-hearsay, or unreliable evidence into reliable evidence.” In arguing that the printouts contain inadmissible hearsay, defendant makes no effort to analyze the substance of the matters contained in the chat to explain that it is inadmissible hearsay (i.e., material offered for the truth of the statements asserted) as opposed to admissible nonhearsay evidence. We reject defendant’s claim of error.
“ ‘Hearsay evidence’ is evidence of any statement made by a declarant on an occasion other than as a witness while testifying at a current hearing or trial, that is offered at the current hearing or trial to prove the truth of the matter stated, either expressly or impliedly, in the statement. [Citations.]” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2010) Hearsay and Nonhearsay Evidence, § 1.1, p. 5; see also Evid. Code, § 1200, subd. (a).) “ ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140.) The hearsay rule applies to both written and oral statements. (People v. Archer (1989) 215 Cal.App.3d 197, 207.) Subject to a number of exceptions, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).)
A critical aspect for the invocation of the hearsay rule is that the statement be offered to prove the truth of the matter stated. “ ‘Under this definition, as under existing case law, a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay.’ (See com., Sen. Com. on Judiciary, 29 pt. 4 West's Ann. Evid. Code (1995 ed.) § 1200, p. 3.)” (People v. Bolden (1996) 44 Cal.App.4th 707, 714.) Thus, for instance, in Bolden, supra, evidence that the defendant’s girlfriend had relayed a message from her godmother that he should not come around her home anymore was not barred by the hearsay rule, because it was not offered for the truth of the matter stated; rather, it was admissible to establish the defendant’s anger toward the godmother, thereby tending to establish motive for setting fire to her home. (Id. at pp. 714-715.)
Under what is sometimes referred to as the “ ‘operative facts’ ” doctrine (People v. Fields (1998) 61 Cal.App.4th 1063, 1069), “ ‘[a] declarant’s statement may become relevant on some issue in a case merely because the words were spoken or written, and irrespective of the truth or falsity of any assertions contained in the statement. If a fact in controversy is whether certain words were spoken or written and not whether the words were true, evidence that these words were spoken or written is admissible as nonhearsay evidence.’ [Citation.]” (Ibid.)
Thus, for instance, in People v. Dell (1991) 232 Cal.App.3d 248, 252 (Dell), the defendant was charged with pimping and pandering in connection with an escort business she owned and operated that the police suspected to be a front for prostitution. A key issue was the admissibility of the undercover police officers’ testimony concerning the escorts’ statements to them about the sex acts they offered to perform in return for money. (Id. at pp. 258-262.) The appellate court rejected the defendant’s challenge that the evidence constituted inadmissible hearsay, concluding that the evidence was nonhearsay under the operative facts doctrine. (Id. at p. 258.) It reasoned: “[T]he statements of the escorts, testified to by the officers, also were not offered for the truth of the matter asserted. The statements were not offered to prove the escorts would actually perform these specific sex acts and at the quoted price.... The truth or falsity of what the escort said is immaterial. In these types of situations, the content of the words spoken is irrelevant, the significance is in the fact the words were uttered at all. These statements could be admitted as ‘operative facts’ or ‘verbal acts’ because they demonstrated an issue in the case: that the escorts were making verbal offers to enter into contracts of prostitution, that is, to engage in sexual intercourse or other lewd acts for money. The purpose of this evidence, in turn, was to prove [the defendant’s] business involved prostitution as an element of the pimping and pandering charges.” (Id. at p. 262; see also People v. Patton (1976) 63 Cal.App.3d 211, 219 [evidence of conversation in which the defendant, charged with pandering, urged witness to work for him as prostitute was nonhearsay under operative facts doctrine].)
Here, the computer printouts of the six chats between defendant and Sarah were not inadmissible hearsay. The communications were not offered for the truth of the matters asserted in the chats. Rather, the printouts were offered to show merely that defendant in fact made the statements to Sarah in the chats. Proof that defendant made those statements was, in turn, relevant in establishing the operative facts supporting the charges against defendant of attempted distribution of harmful matter to a minor over the Internet (§§ 664/288.2, subd. (b)), and attempted lewd or lascivious act on a minor under 14 (§§ 664/288, subd. (a)).
Defendant’s reliance on Hernandez, supra, 55 Cal.App.4th 225 is misplaced. There, the defendant was convicted of violent sex crimes involving two separate victims. (Id. at p. 227.) Those convictions were based in part upon substantial testimony concerning an in-house computer system the sex crimes unit of the police department had used which consisted of a data base with information about each reported sex crime in the department’s jurisdiction. (Id. at pp. 228-229.) It was held that the trial court prejudicially erred in admitting testimony concerning the computer system. The appellate court observed that the data in the computer system was compiled, inter alia, from accounts of victims and witnesses of sex crimes contained in police reports which constituted hearsay and was not made admissible under the business records exception to the hearsay rule under Evidence Code section 1271. (Hernandez, at pp. 240-241.) It reasoned, “[T]he fact that hearsay evidence is put into a log and then again into a computer in the normal course of business does not render such evidence nonhearsay when it is retrieved from the computer even when most of the requirements of Evidence Code section 1271 are met.” (Id. at p. 241.)
The evidence that defendant here claims to have been inadmissible hearsay bears no resemblance to the evidence in Hernandez, beyond the simple fact that the evidence originated from a computer. While we agree with the basic proposition stated in Hernandez, relied on by defendant, that hearsay evidence does not somehow become nonhearsay when it is inputted into a computer, that proposition is not germane here. In this instance, as stated above-and unlike the circumstances of Hernandez where the evidence was plainly hearsay-evidence of the chats between defendant and Sarah were nonhearsay under the operative facts doctrine, and the computer printouts memorializing the substance of those chats were therefore not barred as inadmissible hearsay under Evidence Code, section 1200, subd. (b). We conclude that the trial court did not abuse its discretion in admitting over defendant’s objection the computer printouts of the six chats.
II. Conviction of Attempted Lewd Act on Minor Under 14
A. Applicable Law
In order to establish that a defendant is guilty of the crime of committing a lewd or lascivious act on a minor under 14, the prosecution must show beyond a reasonable doubt that (1) a person either willfully touched the body of a minor or willfully caused the minor to touch his or her body or the body of the defendant; (2) the minor was under the age of 14 years; and (3) the defendant committed the act with the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the defendant or the minor. (§ 288, subd. (a); CALCRIM No. 1110.) To prove guilt for the attempted commission of a crime, the People must show that the defendant (1) had the specific intent to commit the crime, and (2) committed “a direct but ineffectual act” toward the commission of the crime. (§ 21a; see also CALCRIM No. 460.)
Preparation and planning for a crime alone are insufficient to establish guilt for the attempted commission of a crime. (People v. Memro (1985) 38 Cal.3d 658, 698 (Memro), overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) As the Supreme Court explained many years ago, “There is, of course, a difference between the preparation antecedent to the commission of an offense and the actual attempt to commit it. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after preparations are made and must be manifested by acts which would end in the consummation of the particular offense unless frustrated by extraneous circumstances.” (People v. Anderson (1934) 1 Cal.2d 687, 690 (Anderson).) Such “extraneous circumstances” may include the fact that it may not have been possible to complete the crime. “A defendant can be convicted of the attempt to commit most crimes even though a factual impossibility prevented the commission of the crime itself. [Citation.]” (People v. Ross (1988) 205 Cal.App.3d 1548, 1555.) For instance, where the circumstances were not as defendant perceived them to be, because the minor that was his intended victim was a fictitious creation by the police as part of a sting operation, factual impossibility to complete the sex crime would not exonerate a defendant who had the requisite specific intent and committed an unequivocal act toward the commission of the crime. (Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185-186; People v. Reed (1996) 53 Cal.App.4th 389, 399 (Reed).)
“The purpose of requiring an overt act is that until such act occurs, one is uncertain whether the intended design will be carried out.” (People v. Superior Court (Decker)(2007) 41 Cal.4th 1, 13(Decker).) The overt act toward the commission of the crime need not necessarily itself constitute an element of the completed crime (People v. Dillon (1983) 34 Cal.3d 441, 455 (Dillon).) Nor must the act “be the last proximate or ultimate step toward commission of the crime or crimes. [Citation.]” (Decker, at p. 8, citing People v. Kipp (1998) 18 Cal.4th 349, 376.) But the overt “act [must] be unequivocal. It is obviously impossible to be certain that a person will not lose his [or her] resolve to commit the crime until he [or she] completes the last act necessary for its accomplishment. But the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized. If it is not clear from a suspect’s acts what he [or she] intends to do, an observer cannot reasonably conclude that a crime will be committed; but when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway, and a last-minute change of heart by the perpetrator should not be permitted to exonerate him [or her].” (Dillon, at p.455.) Further, “[a]cts that could conceivably be consistent with innocent behavior may, in the eyes of those with knowledge of the actor’s criminal design, be unequivocally and proximately connected to the commission of the crime; it follows that the plainer the intent to commit the offense, the more likely that steps in the early stages of the commission of the crime will satisfy the overt act requirement. [Citations.]” (Ibid.; see also Anderson, supra, 1 Cal.2d at p. 690.) Under this “slight-acts rule” (Decker, at p. 8), “[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.” (Anderson, at p. 690.)
While the principle that overt, unambiguous acts may establish guilt for the attempted commission of a crime but preparation and planning will not appears straightforward, its practical application, as the Supreme Court has acknowledged, is more problematic. (See Decker, supra, 41 Cal.4th at p. 8: “As simple as it is to state the terminology for the law of attempt, it is not always clear in practice how to apply it”]; see also ibid. [“a definitive test has proved elusive”].) As the high court has observed further, “Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case.” (Id. at p. 14.)
B. Sufficiency of Evidence to Support Conviction
Defendant contends that there was insufficient evidence to support the conviction of the attempted commission of a lewd act upon a minor under 14 under sections 288, subdivision (a) and 664. He does not dispute that there was sufficient evidence of his specific intent to commit the crime. But he argues that the evidence did not show that he took any overt acts beyond mere preparation and planning and therefore the prosecution failed to establish the “overt act” element of an attempted crime. We reject defendant’s challenge.
In addressing a claim of whether there was sufficient evidence to support the conviction-in this instance based upon the view that there was insufficient evidence to establish the attempt-“the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence- that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) “In making this determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. [Citation.]” (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Jones (1990) 51 Cal.3d 294, 314.) Rather, we consider whether “ ‘ “any rational trier of fact could have found the essential elements of [the charged] crime beyond a reasonable doubt.” ’ [Citations.]” (People v. Rich (1988) 45 Cal.3d 1036, 1081.) This standard applies to sufficiency-of-the-evidence challenges to convictions for attempted crimes as well. (People v. Marshall (1997) 15 Cal.4th 1, 33-34, 36.)
Here, there was extensive evidence that defendant had the specific intent to commit one or more lewd acts on a minor under 14, Sarah, thereby establishing one of the two requisite elements of an attempted crime. Defendant had six lengthy chat sessions with Sarah, a girl he believed to have been 13, in which he discussed sexual matters and various sexual acts he wanted to perform with her if and when they met. Within minutes of their first chat session and after Sarah had informed him that she was 13, he asked her if she liked older men and broached the subject of intimate contact. He asked her if they could meet so that he could kiss her. During the chat sessions, defendant repeatedly asked Sarah to describe the extent of her sexual experience; said that he would like to give her sexual pleasure and described on a number of occasions various acts he would like to perform with her; told her that he could be her teacher in showing her ways that she could give a man pleasure; sent her a sexually suggestive picture of himself; advised her not to tell anyone about their chats; instructed Sarah to erase their chats from the Yahoo! archives of her computer; repeatedly acknowledged that he could go to jail for the acts he was suggesting performing with her; told her that he would bring condoms when they met; twice wrote saying that he would arrange and pay for a motel room when they met; suggested that he could bring alcohol for them to drink when they met; arranged for a particular place where they could meet in order for him to take her in his car to a motel; suggested what she should wear, and when Sarah told him that she did not have thong underwear, instructed her to not wear any underwear; told her not to “ ‘make[] a scene’ ” by running up to his car when they met; and, on the day before their prearranged meeting, asked if she “ ‘want[ed] to be naked with [him]’ ” and if she wanted to “ ‘give [him] a hand job’ ” or “ ‘a blow job.’ ”
Although defendant concedes that the evidence was sufficient to show his intent, a review of the evidence establishing this element is necessary here in considering the sufficiency of the evidence of both attempt elements, since, as the high court has observed, under the slight acts rule, “ ’[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.’ [Citations.]” (Decker, supra, 41 Cal.4th at p. 8, quoting Anderson, supra, 1 Cal.2d at p. 690.)
Defendant’s actions of renting a motel room shortly before the prearranged time he and Sarah were supposed to meet, and then driving to Mountain View to the precise location where they had agreed to meet, constituted overt acts that were a “direct movement toward the commission after preparations [were] made.” (Anderson, supra, 1 Cal.2d at p. 690.) Defendant’s actions on September 2-of renting a motel room seven minutes before the appointed time of the meeting, and travelling to Mountain View and parking in the lot next to the baseball diamond at McKelvey Park where he and Sarah agreed to meet-viewed in a vacuum, are equivocal. But as our high court has explained, “[a]cts that could conceivably be consistent with innocent behavior may, in the eyes of those with knowledge of the actor’s criminal design, be unequivocally and proximately connected to the commission of the crime.” (Dillon, supra, 34 Cal.3d at p. 455.) Given the entire record-including defendant’s specific arrangements to meet with Sarah at 3:30 p.m. at the parking lot of McKelvey Park by the baseball diamond, his agreement to rent a motel room for them to travel to for the purpose of engaging in a physical relationship, his oft-stated sexual reasons for meeting with Sarah, and the prior instance in which he met a girl he believed to have been 16 through the Internet that resulted in him kissing her-his conduct on September 2 may have reasonably been viewed by the trier of fact as constituting one or more “direct but ineffectual act[s]” toward the commission of the crime. (§ 21a.) Applying the slight acts rule, since defendant’s “design... to commit crime [was] clearly shown, [his] slight acts in furtherance of the design[, namely, his rental of a motel room immediately before the scheduled meeting and his arrival at the specific meeting place at the time agreed, ]... constitute[d] an attempt.” (Anderson, supra, 1 Cal.2d at p. 690.)
In Reed, supra, 53 Cal.App.4th at pages 393 to 395, the defendant, in corresponding with a detective posing as a mother of two children, described the sexual acts he intended to perform with the children. They arranged to meet at a motel. (Id. at p. 395.) Defendant came to the motel and talked to a deputy posing as the mother about what he intended to do with the girls. (Ibid.) He brought sex toys with him, and the deputy told him that the children were in an adjoining room. (Ibid.) When the defendant entered the adjoining room, he was arrested. (Ibid.) The court rejected the defendant’s claim that the evidence was insufficient to support his conviction of attempted lewd acts, explaining, “His act of walking with the undercover deputy into the room he expected to contain the girls was clearly a step beyond mere preparation for the crime, ... That this was an unequivocal first act in carrying out the intended crime is especially evident given that his plan for the seduction was known in detail to the officers at the time they arrested him.” (Id. at p. 399.) Here, defendant rented a motel room shortly before the time he agreed to meet with Sarah, and drove to the park and parked in the lot where he had expected to pick her up after school. These actions were the equivalent of walking into the room where the defendant in Reed expected to find the girls.
There is authority from other jurisdictions that supports our conclusion here. For example, in Kirwan v. State (Ark.2003) 96 S.W.3d 724, during an Internet sting operation, the defendant made plans to meet with a fictitious 11-year-old girl to take sexually explicit photographs of her and to have sex with her. He was arrested as he “walked up to the apartment” where he expected to meet the victim and her mother. (Id. at p. 730.) The court rejected the defendant’s claim of insufficient evidence to support the attempted rape conviction, holding that the defendant’s act of driving to the scene of the arranged meeting “constituted a substantial step toward the commission of the offense.” (Ibid.) Likewise, in Van Bell v. State (Nev.1989) 775 P.2d 1273, the defendant viewed a collection of photographs prepared by an undercover officer, selected a young girl for sexual intercourse, arranged for a room and purchased a lubricant. (Id. at p. 1274.) He was arrested as he “started driving to the apartment” where the victim was supposedly waiting for him. (Id. at p. 1275.) The defendant’s conviction of attempted sexual assault was upheld against his sufficiency of the evidence challenge. (Ibid.) And in People v. Patterson (Ill.2000) 734 N.E.2d 462, 465, the defendant communicated over the Internet with an officer posing as a young boy and made plans to meet at a McDonald’s restaurant to engage in oral sex. The defendant traveled to the restaurant, entered, and then returned to his car. (Ibid.) When an officer contacted him in the parking lot, he admitted being there to meet a 15-year-old boy. (Ibid.) The court upheld the conviction of attempted criminal sexual abuse, concluding that the defendant “took a substantial step toward the commission of the crime by traveling to the agreed-upon meeting place.” (Id. at p. 470.)
Defendant cites Memro, supra, 38 Cal.3d 658, in support of his contention that there was insufficient evidence of overt acts supporting the attempted commission of a crime. In Memro, the defendant invited the victim to his apartment “for a Coke, ” but he “ ‘had in the back of his mind’ that he would try to take pictures of the boy in the nude.” (Id. at p. 699.) After defendant had gotten the victim into his apartment, he took him into his bedroom, turned on strobe lights, and sat down on the bed. (Ibid.) The victim stood watching the lights, then announced he was leaving. (Ibid.) The defendant became angry and strangled the victim, killing him. (Ibid.) On appeal, the high court concluded that the evidence was sufficient to support a finding that the defendant committed the murder during the commission or attempted commission of a lewd or lascivious act on a child under section 288. (Memro, at p. 699.) The court reasoned: “[A]ppellant went beyond preparation. He ushered the boy into the bedroom to watch the strobe lights and stayed close by. These were steps which furthered his aim of readying [the victim] for a nude photography session which was, in all likelihood, intended to culminate in lewd conduct. These acts, therefore, constituted the ‘actual commencement of his plan’ and were sufficient to support an attempt. [Citation.] But for [the victim’s] abrupt decision to leave the apartment, it is likely that these steps would have resulted in a completed violation of section 288.” (Ibid.) In so holding, the court noted in dictum-that defendant relies upon here-that “the simple act of accompanying [the victim] up to appellant’s apartment probably fell within the ‘zone of preparation.’ ” (Ibid.)
Memro does not support defendant’s sufficiency-of-the-evidence challenge. Here, as discussed above-in contrast to Memro, where the defendant’s intent to commit a lewd act was based primarily on his subsequent statement that he “ ‘had in the back of his mind’ that he would try to take pictures of the boy in the nude” (Memro, supra, 38 Cal.3d at p. 699)-there was a wealth of evidence from the six chats that defendant intended to commit lewd acts upon Sarah when they met. Under the slight acts rule, defendant’s actions on September 2 in furtherance of the commission of the crime were enough to establish the “overt act” element for an attempt. Moreover, the “ ‘zone of preparation’ ” language in Memro (ibid.) was merely dictum by which we are not bound here. (See Ferguson v. Workers’ Comp. Appeals Bd. (1995) 33 Cal.App.4th 1613, 1624.)
Defendant’s reliance on People v. La Fontaine (1978) 79 Cal.App.3d 176, overruled on other grounds in People v. Lopez (1998) 19 Cal.4th 282, 293, is similarly misplaced. There, the defendant, who was giving the victim a ride, asked him if he wanted to make an easy $5 or $10; in response to the victim’s question of how he could make the money, the defendant said, “ ’I give you a blow job.’ ” (La Fontaine, at p. 179.) The victim said “no” and left the car. (Ibid.) The court concluded that defendant’s acts were those of solicitation that “constitute[d] preparation only.” (Id. at p. 182.) La Fontaine is distinguishable, and, in any event, its continued vitality on the question of whether mere acts of solicitation, without more, may support a conviction of an attempted crime is very questionable. (See, e.g., People v. Herman (2002) 97 Cal.App.4th 1369, 1387, citing People v. Ansaldo (1998) 60 Cal.App.4th 1190, 1196 [“La Fontaine’s holding ‘ha[s] not been adopted in any other published decision’ and in view of later developments, ‘the time may be at hand for a reevaluation’ ”]; Hatch, supra, 80 Cal.App.4th at p. 188 [rejecting claim that under La Fontaine, the defendant did not attempt to violate Pen. Code, § 288 because he made no effort to touch victim and that mere solicitation to commit sexual acts was insufficient].) Moreover, for the reasons we have stated, there were overt acts committed by defendant on September 2 beyond the acts that might be regarded as solicitation in the six chats before the scheduled meeting, and therefore there was sufficient evidence of the commission of an attempted crime.
There was substantial evidence from which the trier of fact could have rationally concluded that defendant was guilty of attempting to commit a lewd act upon a minor under 14 in violation of sections 288, subdivision (a) and 664. Accordingly, we reject defendant’s sufficiency-of-the-evidence challenge.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J. Premo, J.