14 Cal. 4th 544, 59 Cal. Rptr. 2d 178, 927 P.2d 288 (1996)
The defendant was prosecuted in the circuit court of Lake County for offenses arising from his Internet communications with an undercover Lake County sheriff's detective.1
On July 13, 1998, Detective Richard White was conducting an investigation on the Internet service provider America Online using the screen name XradboyX.
The profile of XradboyX indicated that the user was named Ricky and was born on December 12, 1986.2
Detective White was in a chat room when he received an instant message from the defendant, who was using the screen name FarWestBoy.3
The defendant asked Ricky how old he was.4
An Internet instant message conversation then ensued during which Detective White represented that he was 12 years old and the defendant indicated that he was 34.5
The conversation included references to sexual behaviors.6
Detective White and the defendant agreed to meet later that day at a Denny's restaurant, but the defendant did not appear.7
The following day the defendant sent two e-mails apologizing for not attending the meeting and expressed his desire to continue the exchange of messages.8
When Detective White logged on to America Online, he received an instant message from the defendant.9
They engaged in a sexually suggestive computer dialogue for about one hour.10
During that conversation Detective White requested that the defendant send pictures via e-mail of men engaged in sexual conduct.11
The defendant complied and forwarded images of two young males engaged in acts of sexual penetration.12
Detective White and the defendant again agreed to meet at the Denny's restaurant.13
At the agreed-upon time on July 15, 1998, Lake County detectives arrived at the location.14
After the defendant arrived he approached Detective Manis, who had been dressed to attempt to match the description of a 12-year-old boy.15
The defendant asked Detective Manis if he was Ricky.16
After Detective Manis responded in the affirmative, the defendant stated that Manis did not look twelve years old.17
Police officers then arrested the defendant.18
Following his arrest the defendant was taken to the sheriff's department where he gave oral and written statements to investigators.19
During the interview the defendant identified himself as FarWestBoy and admitted his understanding that Ricky was 12 years old.20
He confirmed that he had driven to the Denny's restaurant to meet Ricky and that he would have had sex if Ricky had wanted to.21
The defendant presented no evidence at the bench trial and moved for a directed verdict.22
The trial court found the defendant guilty of attempted predatory criminal sexual assault of a child, attempted criminal sexual abuse, and two counts of attempted indecent solicitation of a child.23
The trial court denied the defendant's posttrial motions.24
On February 23, 1999, the trial court sentenced the defendant to 12 years' imprisonment for attempted predatory criminal sexual assault of a child and vacated the judgment on the charge of attempted aggravated criminal sexual abuse.25
The trial court also sentenced the defendant to concurrent terms of 365 days' imprisonment on each of the two charges of attempted indecent solicitation of a child.26
The defendant appealed from that order.27
At the hearing on the motion to suppress, testimony addressed the circumstances under which the defendant signed a Miranda waiver form after initial hesitation and questioning by detectives.28
The trial court took judicial notice of the defendant's 1997 Cook County conviction for possession of child pornography that was later vacated in 2000 after the underlying statute was held unconstitutional.29
Whether the trial court erred in denying the defendant's motion to suppress statements?30
Under Miranda v. Arizona, once a suspect invokes his right to the presence of counsel during interrogation, all questioning must cease until counsel is actually present, unless the suspect initiates further communication.31 If police continue questioning a suspect after he invokes his right to counsel, any statements made by the defendant may be suppressed.32 A trial court's decision regarding a motion to suppress statements will not be disturbed unless it is manifestly erroneous.33
No. The established facts show that after arrest the defendant was taken to the sheriff's department where he gave oral and written statements to investigators. The trial court found the testimony of the detectives more credible than that of the defendant. The trial court explained that it was difficult to believe a person as intelligent and well spoken as the defendant could be so easily cajoled by the police when he says he knows his rights. The trial court based its ruling on its view that the testimony of the officers appeared more credible than that of the defendant and did not rely on the vacated child pornography conviction for the credibility determination.34
The trial court did not err in denying the motion to suppress statements.35
Whether the State proved the defendant guilty beyond a reasonable doubt of attempted predatory criminal sexual assault of a child?36
To prove the defendant guilty of attempt, the State is required to establish beyond a reasonable doubt that the defendant intended to commit the offense and that the defendant took a substantial step toward the commission of the offense.37 The impossibility of completing the offense is not a defense.38 A person commits predatory criminal sexual assault of a child if the accused is at least 17 years of age and commits an act of sexual penetration with a victim under 13 years of age.39 Sexual penetration includes any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person.40
Yes. The established facts show that during the Internet communications the defendant made several references to the possibility that he could get into trouble if he were to have sex with Ricky. The defendant expressed a desire to meet and become acquainted with him. He forwarded two computer images of nude young males, one of which depicts anal penetration.
In his statement to police the defendant indicated that he would have had sex with Ricky if Ricky had wanted to. These facts establish that the defendant possessed the intent to engage in an act of sexual penetration with a child under 13 years of age.41 The defendant completed a substantial step by engaging in the Internet communication in which he enticed Ricky to meet with him and by driving to the agreed-upon location for the meeting at the appointed time.42
The State proved the defendant guilty beyond a reasonable doubt of attempted predatory criminal sexual assault of a child.43
Whether the State proved the defendant guilty beyond a reasonable doubt of attempted indecent solicitation of a child?44
When a public act that amends a criminal statute is declared unconstitutional as violating the single subject rule, the effect is to leave the law in force as it was before the public act was effective.45 The types of communication that occurred in this case are precisely the kinds of predatory influences that the legislature intended with the prior version of the solicitation statute.46 The photographs coupled with the defendant's comments regarding the meeting for sex clearly constitute a request that Ricky have sex with him.47
Yes. The established facts establish that the defendant engaged in a sexually suggestive instant-message dialogue lasting about one hour during which the defendant forwarded images of two young males engaged in acts of sexual penetration. In his statement to police the defendant indicated he would have had sex with Ricky if Ricky had wanted to. These facts demonstrate that the computer exchanges included a request for sexual penetration.48
The prior version of the solicitation statute is not limited to solicitation via a particular mode and the communications here fall within its scope even after the unconstitutional amendment adding the word computer is set aside.49
The State proved the defendant guilty beyond a reasonable doubt of attempted indecent solicitation of a child.50
Whether the trial court erred in considering a prior conviction that has since been vacated?51
A conviction that is vacated on constitutional grounds cannot be used for impeachment purposes.52 Upon reviewing the record, it is clear that the trial court never made any specific finding that the defendant was not credible due to the prior conviction.53 The trial court specifically explained that considering the defendant's intelligence and familiarity with his right to counsel it was not persuaded by the defendant's story that he had essentially been fooled by police.54
No. The established facts show that at the hearing on the motion to suppress the trial court took judicial notice of the defendant's 1997 Cook County conviction for possession of child pornography that was later vacated in 2000 after the underlying statute was held unconstitutional. The trial court found the testimony of the detectives more credible than that of the defendant based on the defendant's intelligence and familiarity with his rights rather than on the vacated conviction. The trial court did not make any specific finding that the defendant was not credible due to the prior conviction.55
The trial court did not err in considering a prior conviction that has since been vacated for purposes of the motion to suppress hearing.56
Whether the concurrent sentence of 365 days' imprisonment for attempted indecent solicitation of a child exceeded the maximum allowed for a misdemeanor?57
Yes. The established facts establish that on February 23, 1999, the trial court sentenced the defendant to 12 years' imprisonment for attempted predatory criminal sexual assault of a child and imposed concurrent terms of 365 days' imprisonment on each of the two attempted indecent solicitation charges. A term of imprisonment for a Class A misdemeanor is limited to less than one year. The concurrent sentence of 365 days therefore exceeded the statutory maximum.60
The concurrent sentence of 365 days' imprisonment for attempted indecent solicitation of a child exceeded the maximum allowed for a misdemeanor.61
Whether the defendant was entitled to a new sentencing hearing because the trial court considered a vacated prior conviction in aggravation?62
Because the trial court specifically cited the prior conviction and not the defendant's prior act itself as a factor in aggravation, the defendant is entitled to a new sentencing hearing.63
Yes. The established facts establish that the trial court sentenced the defendant to 12 years' imprisonment for attempted predatory criminal sexual assault of a child. The defendant argued that he is entitled to a new sentencing hearing because the trial court considered in aggravation a prior conviction of child pornography which has since been vacated.64 Because the trial court specifically cited the prior conviction and not the defendant's prior act itself as a factor in aggravation, the defendant is entitled to a new sentencing hearing.
The defendant was entitled to a new sentencing hearing because the trial court considered a vacated prior conviction in aggravation.65