Filed 8/31/17 P. v. Crawford CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Zion Joshua Crawford was charged with, and convicted of, six counts of attempted delivery of harmful matter to a minor (Pen. Code, §§ 664, 288.2, subd. (b)[1]) and one count of attempted luring to commit lewd and lascivious conduct with a minor (§§ 664, 288.3, subd. (a).) On appeal, he challenges the conviction on the luring count, contending there was insufficient evidence to convict him of that offense, the court erred in failing to instruct the jury on mistake of fact regarding the victim’s age, and his counsel provided ineffective assistance in failing to request that instruction. We find no merit in these contentions and therefore affirm.

BACKGROUND

The primary witness at trial was Jason Weis, the co-founder of a nonprofit organization that seeks to stop online predators from exploiting children. Prior to founding the organization, he received training from law enforcement on conducting online communications posing as a minor. He used chat logs and a video software to record and save his online communications. He used Yahoo Messenger to communicate with others and exchange photographs in online chat rooms. From July 2012 through November 2013, Weis had online contacts with an individual who used the name “Zion.Crawford” on Yahoo Messenger. During that period, he saw Crawford about 15 or 16 times on webcam video. At trial, Weis testified about the typed conversations or “chats” between Crawford and himself (posing as a 14-year-old girl). Excerpts from the video recordings were played for the jury, and the full typewritten chats, which he had copied and saved, were admitted into evidence.

Weis created a profile, using the name Amanda Stevens, whose screen name was “Pink Balloons 11.” The profile, which was posted and visible to people online, contained several photographs.[2] To keep himself in character, Weis also created his own profile of Amanda’s background, according to which she was 14 years old and in ninth grade at Chula Vista High School in San Diego.

On July 19, 2012, Weis signed into Yahoo Messenger as Amanda with the pictures depicting her and chose a rock or country music chat room. He was contacted by someone with the handlebar name of “horrible_noisy 1978.” The individual, who turned out to be Crawford, said his name was “Zion.” Crawford asked “Amanda”[3] if she had a webcam, and she said she didn’t. Crawford said she was pretty, and she asked how he knew. He responded “your display pictures,” and she sent him a smiley face.

Crawford asked Amanda how old she was, and Amanda responded “14.” He told her he was 34 years old and from Fairfield, California. Next, he asked if she wanted to “watch me jack off and cum.” Amanda said, “[O]h, my gosh, probably not.” Amanda told him her sister had come in the room, and he asked how old she was. When Amanda said her sister was 10, Crawford asked if Amanda wanted to watch with her sister. At some point, Crawford told Amanda he was switching to his other user name, Zion.Crawford, so she could view him on his webcam, and his webcam came on. Crawford masturbated on camera with his penis visible. Crawford masturbated for several minutes until he ejaculated. He asked Amanda, “Is your pussy wet?” At the trial, the prosecutor showed the webcam video of that chat to the jury.

On fifteen occasions, in December 2012 and January, February, March, May, July, August, October and November 2013, Weis, continuing to pose as Amanda, had and recorded similar online communications with Crawford. After their first chat, their contacts were direct and not through a chat room. Crawford could see that Amanda was online and could contact her directly. The conversations lasted from one to two hours.

On multiple occasions during those chats, Crawford asked Amanda if she wanted to watch him “jerk off,” and told her it was okay for her younger sister to watch. He also asked to see Amanda’s breasts, using the words “tits” and “nipples”; asked her to let him see her naked; asked her if she “want[ed] to fuck him”; asked her, “ ‘When are we going to fuck?’ ”; asked her to send him nude photographs of herself; asked her to send him nude photographs for his birthday; offered to pay her 20 dollars if she would send him a nude picture of herself; asked her “to give him a blow job to help him go to sleep”; told her to “[c]ome sleep with me”; told her he’d just “lick your pussy until you turn 18 and then we can fuck if you want”; and asked her to run away with him and be his online girlfriend. On five of those fifteen chats, Crawford masturbated and ejaculated on camera (as he had done during the first chat). Between the very “graphic” parts of the conversations, Amanda and Crawford conversed about other things, such as his work and their families. On a number of occasions they discussed whether she had or could have a webcam, and she expressed a number of reasons why she could not have one. He told her to let him know if she got one and that he wanted to see her “on cam.”

In March 2013, he told Amanda, “I want you. You’re a sexy one.” She responded, “I’m not even 15.” He said, “Show me some pictures,” and commented that “you have big tits” and “I love your tits.” He told her, “Show me more pictures,” and said “Maybe jerk off to it.” After Amanda shifted the conversation to talk about computers, Crawford returned to the previous subject, asking, “how big are your tits?,” “I love your tits” and “When are we going to fuck?”

In October 2013, Weis perceived that Crawford was getting more serious about actually meeting Amanda. He asked when they were “going to fuck”; stated, “I want to fuck you now”; encouraged her to “move up here with me”; and said he would “send her a ticket” and that she could “go to high school here.” He said he would “be your daddy”; told her to “[j]ust run away with me, move up here”; and gave Amanda his direct phone number. He had told her he lived in Fairfield. He also asked for her phone number and her address. He suggested she get a car and drive up to see him, and when she told him she was 14 and did not know how to drive, he said he could come to see her, that he could borrow his mother’s car, rent a car or take a train. He sent her links to hard core pornography, and told her he wanted to be her first and “teach her how to fuck.” He asked her if she wanted to “fuck” him. He told her to watch him masturbate and “rub your pussy.”

Weis became concerned that Crawford was getting desperate to meet Amanda. He contacted the Fairfield Police Department, spoke with Detective Brian Pereira and provided him with recorded chat logs, video and other information about the case.

Besides Weis, Detective Pereira, the forensic detective for the electronic crimes unit of the Fairfield Police Department, testified. The prosecution played a video of his interview of Crawford. In the interview, Crawford stated that when he communicated with Amanda, she said she was 15 years old but that he initially believed from her photos that she was 18 or 19.

DISCUSSION

I.

Substantial Evidence Supports the Jury’s Guilty Verdict on the Attempted Luring Charge.

Crawford contends there was insufficient evidence to support the jury’s conviction on the charge of attempted luring. He makes two arguments: first, that “he did not ask for a photograph that was necessarily sexual in nature, and second, he did not do anything but ask.”

Preliminarily, we note that despite raising a challenge to the sufficiency of the evidence supporting the attempted luring conviction, Crawford has failed to request that the exhibits, including the transcripts of his online chats with Amanda, be included in the record on appeal. (See Cal. Rules of Court, rules 8.320(e), 8.224(a).) Without the exhibits his claim of insufficient evidence cannot be reviewed. “ ‘It is well settled that an appellant must produce a record which discloses that an error relied upon has, in fact, occurred.’ ” (People v. Denne (1956) 141 Cal.App.2d 499, 514.) While under these circumstances we could presume that the evidence omitted from the record supports the verdict, we have instead exercised our prerogative under California Rules of Court, rule 8.224(d) to direct the superior court to send the pertinent exhibits to this court and to review them notwithstanding Crawford’s failure to request them.

Crawford’s arguments required familiarity with the luring statute, section 311.4,[4] which in relevant part provides: “Every person who, with knowledge that a person is a minor under the age of 18 years, or who, while in possession of any facts on the basis of which he or she should reasonably know that the person is a minor under the age of 18 years, knowingly promotes, employs, uses, persuades, induces or coerces a minor under the age of 18 years, . . . to engage in . . . either posing or modeling alone or with others for purposes of preparing any representation of information, data, or image, including, but not limited to, any . . . photograph, . . . or any other computer-generated image that contains or incorporates in any manner, any film, filmstrip, or a live performance involving, sexual conduct by a minor under the age of 18 years alone or with other persons or animals, is guilty of a felony.” (§ 311.4, subd. (c).) “Sexual conduct” is defined to mean, among other things, “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer.” (Id., subd. (d)(1).)

We now turn to the evidence. Weis’s testimony and the transcripts of the online conversations between Crawford and Amanda reflect that Crawford asked Amanda to send him nude photographs of herself on multiple occasions. His interest in seeing her emerged in their first “conversation” in July 2012, when he asked if she had a webcam and made the first of repeated references to her body in graphic terms. Throughout their conversations he encouraged her to get a webcam and repeatedly commented on, asked her to show him, and expressed interest in, parts of her body, including her breasts (“tits”) and her vagina (“pussy”). He repeatedly referred to her as “sexy,” told her he liked her “tits,” and asked if she wanted “to be [his] online girlfriend,” wanted to watch him “jack off,” liked watching him and wanted to see him naked. He repeatedly masturbated to ejaculation while online with her and on at least one occasion asked her afterward whether her “pussy [was] wet.” He told her to show him pictures and that he might “jerk off” to one. He sent her links to pornography and told her to watch him masturbate and “rub your pussy.” He also repeatedly referred to performing various sexual acts with her (“lick [her] pussy,” have her give him a “blow job,” and “fuck”).

It was in the context of these sex-focused and graphic conversations that Crawford asked Amanda to send him nude photographs of herself. On January 10, 2013, he twice asked her to “take some naked [or nude] pics for me for my b day.” When she didn’t respond, he followed up with, “you won’t let me see you naked?” In the next chat, on January 17, he offered Amanda money: “f I give you money, let me see you naked.” When she followed up by asking, “[U]ll [[i]sic] giv[e] me money[?],” he responded with, “[H]ow much to see you nude?” About 10 minutes later, he returned to that subject, asking, “[S]o . . . how much to see you naked? 20 bucks?” He assured her he would not post the pictures on the internet and asked her to “think about it.” Still having received no clear response, Crawford persisted, on January 31, 2013, asking, “[A]re you gonna let me see you nude?” On March 26, 2013, he told her, “ want you. You’re a sexy one.” She responded, “I’m not even 15.” In the continued conversation on the same date, he says: “show me some pictures,” “you have big tits?” “[I] love tits,” “I think your [[i]sic] super sexy,” “show more pictures,” “maybe jerk off to it,” “anymore pictures?” and “nomore [sic] pictures?”

In light of the law and the evidence, Crawford’s argument that the evidence does not show he asked for a photograph that was “necessarily sexual in nature” is patently meritless. It ignores the statutory definition of “sexual conduct” to include “exhibition of the genitals or pubic . . . area for the purpose of sexual stimulation of the viewer.” It also ignores the context and obvious purpose of his requests for nude photographs. During their online chats, Crawford unrelentingly focused on Amanda’s sexual attributes, her sexual interest in him, his sexual interest in her and his own sexual gratification. His communications overwhelmingly demonstrated the primary purpose of his interactions with Amanda was to pursue his own sexual stimulation and that this was the purpose for which he sought the photos.

To the extent Crawford’s argument is that he did not specify that the photographs should include Amanda’s genitals, and that this was required in order for the photos to depict “sexual conduct,” again we disagree. The request for pictures of her “nude” or “naked” plainly meant pictures of her entire body without any clothes or other covering. Further, although Crawford at times expressed interest in Amanda’s breasts,[5] he also repeatedly expressed interest in her genitals and in having oral sex and intercourse with her. Given the overall context of Crawford’s words and acts, there could be little ambiguity about the meaning of his expressions of desire to “see [her] naked” or “see [her] nude,” or his requests that she send him “nude pictures” of herself. Crawford was asking to see Amanda without any clothes on so he could see her body, including her genitals.

Crawford’s second argument, that he “did not do anything but ask,” concerns the law governing attempted criminal acts. Section 664 provides in relevant part that “[e]very person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: . . . .” (§ 664.)[6] Section 21a provides that “[a]n attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.”

Crawford argues he “did nothing more than ask for nude pictures and offer Weis/Amanda money.” He contends there was no substantial evidence that he “made any preparations” and characterizes himself as “quite literally, all talk and no action.” He further argues that in order to establish intent here, he would have had to do more than ask for nude pictures and offer money. He suggests he could have “pressed [Amanda] for an address to send money to” and that if she “had deflected that request because [she] did not want mail coming to her home, [he] could have asked if she had a PayPal account so he could send her money online,” “offered to help her set one up,” or “suggested she talk to a friend” to use his or her PayPal account. He further contends that if Weis had given him a physical address or internet address for a valid PayPal account and if he had sent money to that address or account, “then he would have taken that step beyond preparation that was required to establish his intent to commit attempted luring.” He argues that his requests for nude photographs constituted “[m]ere solicitation [that] was insufficient.”

The People argue that “[b]eyond mere online solicitation, [Crawford] provided Amanda with an alternative website to view his webcast images, plied Amanda with broadcasts showing appellant exposing his penis and masturbating, repeatedly asked for sexual contact, offered Amanda money for nude images, and made repeated requests for nude images of Amanda to satisfy his sexual appetite.” This evidence, the People argue, established Crawford’s intent, and supports “the jury’s finding that [Crawford] committed ‘slight acts’ in furtherance of his plan.”

“ ‘ “An attempt to commit a crime consists of a specific intent to commit the crime, and a direct but ineffectual act done towards its commission. [Citation.] Commission of an element of the underlying crime other than formation of intent to do it is not necessary. [Citation.] Although mere preparation such as planning or mere intention to commit a crime is insufficient to constitute an attempt, acts which indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design will be sufficient. [Citations.]” ’ (People v. Jones (1999) 75 Cal.App.4th 616, 627; see §§ 21a [defining attempt], 664 [prescribing punishment]; People v. Toledo (2001) 26 Cal.4th 221, 230 [‘When a defendant acts with the requisite specific intent, that is, with the intent to engage in the conduct and/or bring about the consequences proscribed by the attempted crime [citation], and performs an act that “go[es] beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan into action” [citation] the defendant may be convicted of criminal attempt,’ quoting People v. Kipp (1998) 18 Cal.4th 349, 376].)” (People v. Herman (2002) 97 Cal.App.4th 1369, 1385–1386 (Herman).)

Determining what constitutes an attempt under section 664 obviously requires consideration of the underlying crime. That is, whether the evidence is sufficient to establish the intent to commit the crime and a “direct but ineffectual act” toward committing it necessarily depends on what the crime consists of. While the act need not constitute an element of the crime (Herman, supra, 97 Cal.App.4th at p. 1385), to constitute an attempt it must be directed toward the commission of that crime. Here, as we have discussed, the underlying crime was violation of section 311.4. The question, therefore, is whether the evidence showed Crawford intended to, and committed a “direct but ineffectual act” toward, “promot[ing], employ[ing], us[ing], persuad[ing], induc[ing] or coerc[ing]” Amanda to “pos[e] or model[] . . . for purposes of preparing any . . . image . . . that contains or incorporates in any manner, . . . sexual conduct by a minor under the age of 18 years,” i.e., an image containing an “exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of [Crawford].” (See § 311.4, subds. (c), (d)(1).)

In this case, the sufficiency of the evidence to support Crawford’s intent does not present a close question. As already discussed, Crawford urged Amanda to send him naked photographs of herself on four separate occasions during chat sessions in 2013. He addressed the issue three times during the first of these chats, offered to pay her in the second, raised the issue again in the third, and in the fourth asked twice, adding that he might “jerk off to” such a picture. At one point, he offered a specific amount of money, 20 dollars, for a nude photograph. Crawford’s intent to induce Amanda to take and send him a naked photograph of herself for the purpose of his own sexual stimulation was inescapably clear from these acts and the broader “conversations” of which they were a part, during which he repeatedly masturbated, expressed his sexual interest in Amanda, and referred to her breasts, her genitalia and the various sexual acts he wanted to engage in with her.

As to Crawford’s acts, the issue is closer, but not especially close when one views the acts element in the context of the attempted crime.[7] The acts required to commit an attempt to violate section 311.4 must have been “direct, albeit ineffectual, acts” toward “promot[ing], employ[ing], us[ing], persuad[ing], induc[ing] or coerc[ing]” Amanda to pose for the purpose of creating a sexual image of herself. The evidence was sufficient to establish that Crawford engaged in such acts. His repeated requests that Amanda send him nude or naked photographs of herself constituted direct efforts to “promote,” “persuade” and “induce” her to create and send him such photographs. Further, he offered to pay her for the photos, even specifying an amount. The offer to pay, too, was an act in furtherance of persuading and inducing her to provide the images. Contrary to Crawford’s arguments, these acts went beyond mere preparation. His contacting Amanda via the chat room, engaging her in private online conversations focused on sex, transmitting to her electronic images of himself engaging in sexual acts, inquiring about her interest, and responding and commenting about his sexual interest in her and her attractiveness could all be characterized as “preparation.” But once he asked her to send him nude photographs of herself, little more would have been necessary for him to achieve his goal of obtaining the images he requested.

It is true that Amanda would have required an address or perhaps a cell phone number for Crawford in order to transmit the images to him. There was evidence that he gave her his telephone number, though whether it was a cell phone number is not clear. On this record, however, there can be little doubt that he would readily have given her a cell phone number or address if she had agreed to send him photographs. It is also true that if she had accepted his monetary offer, they would have needed to decide where and how he would transmit the payment. The evidence indicates he at one point asked her for her address, but not that she sent it to him. But at most the fact that further steps may have been required to accomplish a completed violation of section 311.4 does not preclude a finding of attempt. Crawford’s acts went “ ‘ “beyond mere preparation” ’ ” and showed he was “ ‘ “putting his or her plan into action.” ’ ” (Herman, supra, 97 Cal.App.4th at p. 1386.) To meet the direct acts element of an attempt, the act “need not be the last proximate or ultimate step toward commission of the crime or crimes.” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8; People v. Kipp, supra, 18 Cal.4th at p. 376.) In short, Crawford’s numerous requests for Amanda to supply him with nude photographs, especially coupled with his offers to pay for them, were sufficient to establish the direct acts element of the crime of attempt to violate section 311.4, subdivision (c). There was substantial evidence that Crawford attempted to lure Amanda as charged.

Any Error by the Trial Court in Failing to Instruct Sua Sponte on Mistake of Fact Was Harmless.

Crawford did not request a jury instruction on mistake of fact. Nonetheless, he contends, “the trial court had a sua sponte duty to give CALCRIM No. 3406,” since his defense was “that he did not have the requisite intent or mental state to commit the charged offenses because he may not have believed Weis/Amanda when he claimed to be a 14- or 15-year-old girl.”

“It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant’s theory of the case.” (People v. Salas (2006) 37 Cal.4th 967, 982.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.’ ” (Ibid.)

Here, whether the trial court erred in failing to instruct that a defendant is not guilty of the crime of luring a minor unless he believed he was communicating with a minor depends on whether there was substantial evidence that Crawford reasonably and in good faith believed “Amanda” was under the age of 18 years. If Crawford reasonably believed he was requesting a nude photograph from an 18 year old, he cannot be guilty of an attempt to induce a minor under the age of 18 to pose for an image containing sexual conduct of such minor. (See People v. Hanna (2013) 218 Cal.App.4th 455, 462 [attempt to commit lewd act with child under 14 requires specific intent to commit that particular offense; mistake of fact defense may apply to that crime].)

Crawford contends there was evidence sufficient to raise a reasonable doubt about his belief that Amanda was a minor, whereas the People argue there was not. Since Crawford did not testify, both parties rely on the evidence of Detective Pereira’s interview of Crawford. Crawford also contends that Weis’s testimony proves that “people using Internet chat rooms can turn out to be very different from who and what they claim to be.”

Crawford points to his statement during Pereira’s interview that “I thought she was 18–19 when I first saw her in the beginning”—that is, when he saw her pictures online. Crawford omits, however, many other statements he made during the same interview. Most significant was what he said when he was first asked about whether he remembered a girl he talked with named Amanda:

“Q: Do you remember one named (Amanda)?

“A.: Yeah.

“Q: Yeah—what’s up with (Amanda)?

“A: I haven’t talked to her in a while.

“Q: Oh can you tell me about her?

“A: Yeah.

“Q: What about her?

“A: She’s 15.

“Q: Fifteen?

“A: Yeah.

“Q: Okay.

“A: Yeah.” (Italics added.)

The interview continued:

“Q: Where’s she from?

“A: Ah, somewhere—southern California I think.

“Q: Okay do you remember her screen name?

“A: Ah, Pink Balloons—something I don’t remember it—12 or something.

“Q: Okay you don’t find it odd that you’re chatting with a 15-year-old?

“A: I talked to her for a long time.

“Q: How long?

“A: Like two years.

“Q: Okay.

“A: Is that about her—is this about her?

“Q: Well it’s about a lot of things. I’m sure she’s not the only minor you’ve been talking (unintelligible).

“A: No that’s—she’s the only one I ever talked to that’s a minor.

“Q: Even on Paltalk?

“A: Even—not on Paltalk—nothing.

“Q: So she’s the only minor that you’ve ever talked to?

“A: Yeah I liked her so—she’s the only one I ever talked to that was under age.

“Q: Okay but you know she’s under age right?

“A: Yeah.

“Q: So why are you talking to her?

“A: I like her so I talk to her.

“Q: Okay.

“A: She’s the only one I ever talk to that was—I told her that too that she’s the only one I ever talked to that’s under age at all. My mom knows about it too.

“Q: Your mom knows you been talking to a 15-year-old?

“A: I told her that she’s 15.

“Q: Okay.

“A: I’d like to see her when she’s 18—she’s turning 18 pretty soon.” (Italics added.)

Later in the interview, there was the following colloquy, which includes the statement on which Crawford relies:

“Q: Do you remember talking to her how—how . . .

“A: I remember seeing her on the web—I don’t know if it’s a girl or a guy but I seen her pictures and I liked her.

“Q: Okay but you knew she was a 15-year-old?

“A: That’s what she said?

“Q: Okay and you saw pictures, right . . .

“A: Yeah.

“Q: . . . that she sent you?

“A: Yeah.

“Q: Okay did she look like she was 15?

“A: I thought she was 18–19 when I first saw her in the beginning, but over the years I learn from it—probably two years I (unintelligible).

“Q: So—so initially you thought she was older?

“A: I thought she was older when I first—she said she was 15 but I told he [sic] well you’re really pretty—I think you’re pretty and stuff like that.” (Italics added.)

Near the end of the interview, there was one more exchange touching on age:

“Q: Okay—okay well I’ll just cut to it I’m in—pretty much—just so you know (Amanda) isn’t (Amanda). (Amanda) is actually somebody whose [sic] a . . .

“A: My mom told me that same thing too.

“Q: And you continued doing it?

“A: No.

“Q: She told you it’s probably not a 15-year-old girl?

“A: No don’t talk to her she’s under age something like that.

“Q: But you kept doing it?

“A: Yeah.

“Q: Okay.

“A: ‘Cause I liked her—soon as I first seen her I like—I usually don’t talk to—if they’re under age I don’t talk to them.

“Q: Okay but you know that’s not right right?

“A: Yeah.” (Italics added.)

When the entire interview is considered, we cannot find substantial evidence to support a mistake of fact defense regarding Crawford’s understanding of Amanda’s age. At most, one of Crawford’s statements indicates he was unsure of her age when he first saw her online profile photographs. But his many other statements to Detective Pereira about Amanda unequivocally indicate that at the time of the interview he believed she was 15, that he knew she had not yet turned 18, that while he “usually” did not talk to under-age girls Amanda was an exception, that he told his mother Amanda was 15, that he disregarded his mother’s advice not to talk to an under-age girl, that he knew talking to her wasn’t right, and that he did so anyway because he liked her.

It is true that defense counsel argued to the jury that it could interpret the evidence to indicate defendant’s online acts were part of a “virtual world” of “sexual fantasy” which people like Crawford engaged in on the internet, and in which “it’s known” that people “represent themselves as people that they’re not.” But argument is not evidence. The evidence regarding Crawford’s state of mind, including all of the online conversations in which Amanda consistently presented as a 14-year-old girl, does not support an inference that he believed he was communicating with someone who was 18 or older. The evidence of what Amanda told Crawford about herself—that she was 14, a freshman in high school, did not know how to drive, had a 10-year-old sister—does not suggest any reason for him to believe she was at least 18. Nor do the statements he made to her during their conversations suggest any disbelief in her stated age. Crawford at various points told Amanda he was willing to wait until she turned 18 to have intercourse with her, that she could come to live with him and go to high school in Fairfield, that he wanted to be her “first” and “teach her” about sex. All of these statements indicate that he accepted her statements that she was a minor. Crawford’s statements to Pereira are even stronger. He volunteered when Pereira asked about Amanda that she was 15 and did not deny knowing or believing that during the interview. He indicated only that he was uncertain of her age at the beginning, but admitted she was currently 15 and that he knew she was “under-age” and a “minor” throughout their interactions.

In short, there is no substantial evidence that Crawford believed Amanda was 18 or older, and thus the trial court was not required to provide a mistake of fact instruction to the jury. Finally, even if the failure to give one had been error, it would have been harmless under any standard.[8] This is so for three reasons. First, as already discussed, the evidence could not have raised a reasonable doubt as to Crawford’s knowledge of Amanda’s minority. Second, the jury was in any event instructed regarding count 7 (the attempt offense) that it was the People’s burden to prove “the defendant knew or reasonably should have known that the person was a minor” and that “[a] minor is a person under the age of 18.” Further, the jury was instructed on the elements of section 311.4, including that “the person knew or reasonably should have known based on the facts of which he was aware that the minor was under 18 years of age.” The jury therefore well understood that it could not find Crawford guilty of attempting to violate section 311.4 unless it found beyond a reasonable doubt that he “knew” or “reasonably should have known” Amanda was under 18. Third, both the defense counsel and the prosecutor addressed the prosecution’s burden of proving that Crawford knew the person he was communicating with was a minor and the evidence relating to that element in their closing arguments. For all of these reasons, the failure to give an instruction on mistake of fact was harmless beyond a reasonable doubt.

Defense Counsel’s Failure to Request an Instruction on Mistake of Fact Did Not Constitute Ineffective Assistance.

Finally, Crawford argues his trial counsel’s failure to request a mistake of fact instruction constituted ineffective assistance of counsel. For the reasons we have just discussed, it was not. The instruction was not warranted by the evidence, and it is not ineffective assistance not to request an unwarranted instruction. And if counsel had erred, Crawford would have suffered no prejudice.

DISPOSITION

The judgment is affirmed.

STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.

People v. Crawford (A146245)