1

Filed 1/30/24 P. v. Khan CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

AFZAL KHAN,

Defendant and Appellant. C096166

(Super. Ct. No. MANCRFE20210003819)

This case arises from an undercover sting operation targeting sexual predators in

San Joaquin County. A jury found defendant Afzal Khan guilty of contact ing a minor

under 14 years of age with intent to c ommit a sexual offense ( Pen. Code, § § 288.3, subd.

(a ) , 288, subd. (a) ; later references are to this code ) and meeting a minor for lewd

purposes ( § 288.4, subd

. (b) )

. Defendant makes three claims on appeal: (1) t he evidence

was insufficient to sustain these convictions ; (2) the prosecutor committed prejudicial

misconduct ; and (3) the police engaged in entrapment as a matter of law. We disagree

and affirm.2 FACTUAL AND PROCEDURAL BACKGROUND

In April 2021, a s part of a joint operation with the San Joaquin County Sheriff’s

Office and Lathrop Police Services, Department of Justice Special Agent Al lison R ue ter

posted an ad vertisement on MegaPersonals, an escort website. The ad vertisement begins

, “NEW new CUTEE [] n yung [] ALL u nEeD dnt Miss Ouut ReDy 2 PLay [].” The text

that follows reads

, “AGE 21.” Then the ad continues, “NEW NEW SWEET STEPH []

ALL u NeEd Redy 2 pLAy [] CUTE n YUNG [] CLAEN [ ¶ ] [] dnt miss out FS BB BBJ

GFE G REEK R P PSE !!!! *** NO LAW ENfrCmnt *** .” Within the text appear emojis

of candy, water spraying, a cat with heart eyes, a flower, a winky face blowing a kiss, and

kissing lips. The ad instructs to “TXT NMBR,” lists a phone number, and include s three

photos of a female with the face partially covered by pink heart emojis

. The female in

the photos was 25 years old.

Agent R ue ter testified that (1) age 21 is the youngest age the site will allow you to

list

, (2) the site did not verify her age

, an d (3) she has spoken to people who created ads

on the site when they were under 18. She further explained what the emojis and

abbreviations meant based on her experience

. For example, FS stands for “full service,

which includes oral and sexual penetration, whatever the responder to the ad wants” ; BB

stands for “[b]areback, meaning no condom”; BBBJ means “[b]areback blow job”; and

Greek means anal sex. The ad received about 250 responses.

Defendant was one such responder. On April 9, 2021, h e called the number twice

,

but no one answered

, 1 and sent the following text messages : “Hi,” “How are you doing

, ”

and “Are you available?” Agent R ue ter responded to the third message with : “Hiii,

[smiley face emoji] Sry bb abt 2 go fam campng trip bt will b in stckton after school nxt

wk 4 sum fun.” Defendant asked when she would be back, Agent Ru e ter responded,

1 Agent Rueter testified she did not want to answer any audio calls because the operation had not officially started.3

“Monday,” and defendant responded, “Ok.” Agent R ue ter then asked

, “Wht do u wnt?”

and defendant answered, “Full service,” which Agent R u e ter interpreted to mean

penetrated sex

.

T w o minutes later, defendant asked, “Are you available now please?” and Agent

R ue ter responded, “Cnt bby, leavin s8n.” Defendant texted, “Please let me know when

you’re available thanks ,” and Agent R ue ter answered, “Will do, hit m3 up Monday.”

Defendant called the number with no answer and then asked, “Can I save your number,”

to whi ch Agent R ue ter responded, “Yes bby ucn save my # n talk 2 me on

. . . mon
, ”

followed by a smiley face emoji.

Two days later ( a Sunday )

, defendant texted the number, “ Hi good morning how

are you doing today

, a re you available now.” He called the number

, but there was no

answer

. Agent R ue ter responded via text later that day, “I b avlble 2mrow if u wnt to c

me then” with an emoji.

The next day (Monday) , defendant sent four text messages to the phone number:

“Hi good morning,” “How are you doing,” “ What time are you going to be available,”

and “?” He called the number

, but no one answered. Department of Justice Special

Agent Kevin Kurtz took over texting (so Agent R ue ter could respond to other replies to

the ad) and wrote “I wil b avlble aftr school in aftrnoon 2day” with an emoji. Defendant

then questioned, “So like what time” and Agent Kurtz responded, “Aftr 1 pm bby do u

lyk yung?” Defendant answered, “Are you available now?” Then defendant called but

no one answered. Agent Kurtz texted, “Yes bby bt wit my mom n hav 2 sn33k out. Cud

u pik me up n g i v me ride? 2 yung 2 drive yt.” Defendant responded, “Send me your

address please

. ” About 25 minutes later, defendant called the number with no answer

and then texted

, “Where can I come pick you up

, ” and “Are you there?” Agent Kurtz

answered, “Sry bby im at my gmas.” Defendant questioned , “So are you not available

then?” Agent Kurtz responded, “I wll b in a lil bit bby.”4

Within the next 16 minutes, defendant text ed four messages: “ Let me know

please,” “Where are you,” “Send me your address please

. W here can I come pick you

up ? ” and two question marks. Agent Kurtz answer ed , “Im still at my gmas house. Ill go

to my frens house in a little.” Defendant responded , “OK thanks let me know please”

followed by

, “Are you in Lodi.” Agent Kurtz then answered , “Ill be in Lathrop when I

go to my frens. Wut did u want to do?” Defendant attempt ed another call but no one

answer ed

. He tex t ed three more messages: “ ‘ Are you available now ?’ Two question

marks and ‘H ello. ’ ” Agent Kurtz ask ed , “Can u pick me up? Im nt old enuff to drive

yet.”

Defendant then text ed

, “Can you please answer the phone” and call ed the number

.
Agent R ue ter answer ed

. D efendant as ked where he should go , and A gent R ue ter

responded by asking if he could pick her up because she wa s too young to driv e

. Agent

R ue ter then stated that she wa s 13 but w ould be 14 soon. Defendant ask ed , “Are you

14?” Agent R ue ter respond ed that she is going to be 14 “like really soon. ” After a pause,

defendant inquire d why she put the ad up

. Agent R ue ter answer ed that she want ed to

have fun and need ed money for things like clothes

. She then ask ed if defendant want ed

to meet up and have fun with her . Defendan t answered with concern about her age and

Agent R ue ter asked , “Is that bad? You don’t like that I’m almost 14. ” Defendant

responded , “ I don’t know. I t’s kind of risky. I don’t know

. ” Agent R ue ter then stated

,

“we could have fun,” suggest ed that defendant bring alcohol, and repeat ed

, “we can just

have fun and you know it’s not risky.” Defendant m ade a sound and then ask ed , “Where

are you right now ?” Agent R ue ter state d she was in Lathrop

, and defendant state d he was

in Lodi. Defendant then state d he could come now

. Agent R ue ter confirmed she would

pick a spot, sneak out, and send him the location. Defendant told her to send him the

address . Agent R ue ter ask ed him to bring condoms because she was too young to buy

them and didn’t have any. Defendant answe r ed , “ O kay.”5

Shortly after the call ended , defendant texted

, “I am on my way

, ” and he and

Agent Kurtz a rrange d via text to meet at a community center in Lathrop. Defe ndant

texted

, “I am on my way” and “See you soon.” Agent R ue ter took over texting and

wrote

, “kk bby [emoji] w at car u drvng? I will look 4 u.” Agent R ue ter and defendant

then exchange d texts regarding how far away he wa s, how defendant could recognize her,

and what defendant’s car look ed like. About one minute later, Agent R ue ter text ed , “Is

that u in truck,” and defend ant respond ed , “ Y es.” A traffic stop was conducted on

defendant’s car after which defendant was taken into custody. No condoms or alcohol

were f ound in his car

.
Defendant was charged with three felonies : (1) attempt ing to commit a lewd act

with a child under age 14 ( §§ 288, subd. (a) ; 664 [ count 1 ] ); (2) contacting a minor with

intent to commit a sexual offense ( § 288.3, subd. (a) [count 2] ) ; and (3) appearing at a

meeting with a minor to engage in lewd and lascivious b ehavior ( § 288.4, subd. (b)

[count 3]). Among other instructions, t he court instructed the jury on defendant’s

entrapment defense . The jury found defendant guilty of counts 2 and 3 but was unable to

reach a verdict on count 1

. As to count 2, the jury fo und defendant guilty of contacting a

minor with intent to commit a lewd or lascivious act on a child under age 14

. (§§ 288.3

,
subd. (a) ; 288, subd. (a).) The t rial court dismissed count 1, suspended imposition of

sentence

, and placed defendant on probation for two y ears with various terms and

conditions, including a 180

- day term in county jail and lifetime sex offender registration

.
Defendant timely filed a notice of appeal.

DISCUSSION

I

Sufficient Evidence

In considerin g a challenge to the sufficiency of the evidence, our role is limited.

“ [W] e review the entire record in the light most favorable to the judgment to determine

whether it contains substantial evidence

— that is, evidence that is reasonable, credible,6

and of solid value

— from which a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt. [Citation.] ” ( People v. Albillar (2010) 51 Cal.4th 47, 60

( Albillar ) .) “Substantial evidence must be more than evidence which merely raises a

strong suspicion of guilt as mere suspicion will not support an inference of fact.”

( People v. Martin (1973) 9 Cal.3d 687, 695.)

“ We presume every fact in support of the judgment the trier of fact could have

reasonably deduced from the evidence. [Citation.] If the circumstances reasonably

justify the trier of fact ’ s findings, reversal of the judgment is not warranted simply

because the circumstances might also reasonably be reconciled with a contrary finding.

[Citation.] ” (

Albilla r, supra
, 51 Cal.4th at p. 60.) “ It is not our function to reweigh the

evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are

functions reserved for the trier of fact.” ( People v. Tripp (2007) 151 Cal.App.4th 951,

955.) And “ [ w ] e need not be convinced of the defendant’s guilt beyond a reasonable

doubt; we merely ask whether ‘ “ any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” ’ ” ( Ibid .) “ Because we must draw all

inferences in support of the judgment, [ a ] defendant bears an ‘ enormous burden ’ when

challenging the sufficienc y of the evidence. [Citation.] ” ( People v. Vasco (2005)

131 Cal.App.4th 137, 161 .)

A. Count 2

Section 288.3, subdivision (a) makes it a crime for a person to contact or

communicate with a minor with the intent to commit a sexual offense. To establish a

violation of this section here

, the prosecut ion was required to prove that defendant

communicated with a minor with the intent to commit a lewd or lascivious act

specifically with a minor under age 14 . ( § 288.3, subd. (a) ; § 288, subd. (a). ) According

to defendant, there is insufficient evidence , and at most only inference based on7

suspicion, to show he harbored such intent after Agent R ue ter identified herself as 1 3

years old

. We disagree.

A reasonable jury could conclude that defendant’s request for “full service”

indicated his intent to commit a lewd or lascivious act based on Agent R ue ter’s testimony

regarding the meaning of the term “full service

. ” The sexual meaning of defendant’s

requ est is reinforced by the ad’s inclusion of more specific sexual terms like “BB” and

“Greek .” A fter revealing her age of 13 and suggesting she and defendant could “just

have fun

, ” Agent R ue ter asked defendant to bring condoms, to which defendant

responded, “ [O] k ay .” Defendant contends Agent R ue ter’s “just have fun” statement

removed sex as an option and his “okay” response to bringing condoms was non

committal , particularly in light of the fac t that no condoms were found

. He also contends

that his intent ions regarding Agent R ue ter “back

- pedal[ed]” after he learned her age , a

change he insists can be “discerned both from his words and his tone” in their phone

conversation. But defendant’s contentions raise mere factual conflicts that we cannot

resolve on appea l

. After reviewing the ad, hearing the testimonies of Agent R ue ter and

Agent Kurtz

, reading the text exchange between the agents and def endant

, and listening

to the phone call, t he jury could reasonably infer that defendant intended to commit a

lewd or lascivious act when he started communicating with Agent R ue ter and that such

intent remained even after Agent R ue ter revealed she was only 13

. This inference was

supported by substantial evidence and not mere suspicion.

Defendant’s reliance on People v. Fromuth (2016) 2 Cal.App.5th 91 ( Fromuth )

,
People v. Korwin ( 2019 ) 36 Cal.App.5th 682 , and People v. Hanna (2013)

218 Cal.App. 4th 45 5 is misplaced. In Hanna , the reviewing court considered whether the

trial court erred in refusing to instruct on a mistake

- of

- fact defense

. ( Hanna, at pp. 460

-

463.) Defendant’s appeal does not concern that defense

. In Korwin , the court rejected

the defendant’s argume nt that section 288.3 requires an actual minor victim as opposed to

a n adult decoy . ( Korwin, at p. 689.) The court concluded the defendant had ample8

reason to know he was communicating with a minor because he repeatedly acknowledged

she was under 18

. ( Id . at p. 690

- 691.) Such reason to know i s also shown here whe n

defendant reacted to learning Agent R ue ter was almost 14

. And i n Fromuth

, the

defendant responded to an advertisement for a “[y]oung cutie looking for a hookup.”

( Fromuth, at p p

. 96

- 97. ) The defendant ’s dogged pursuit of the person who posted the ad

after learning she was 15 years old was sufficient to demonstrate his intent to engage in

sexual conduct with a minor

. ( Id . at p. 106 ) While the facts in Fromuth are different

from those presented here, Fromuth did not set t hreshold facts for satisfying the element

of intent to engage in lewd or lascivious conduct with a minor. “ [T] he facts of other

cases .

. . are not particula rly helpful in evaluating the sufficiency of the evidence in this

case. ” ( People v. Rundle (2008) 43 Cal.4th 76, 140, disappro ved on another point

in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) It is the evidence in this case

that matters

, and that evidence was sufficient.

B. Count 3

We similarly reject defendant’s contention that the evidence was insufficient to

support his conviction for a violation of section 288.4, subdivision ( b ).

Section 288.4 , subdivision ( b ) provides: “Every person who, motivated by an

unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a

person he or she believes to be a minor for the purpose of

. . . engaging in lewd or

lascivious behavior” and “w ho goes to the arranged meeting place at or about the

arranged time” commits a felony. For purposes of this section, a minor is a person under

the age of 18 y ears. ( People v. Yuksel (2012) 207 C al.App. 4th 850, 855 ( Yuksel ) .)

Defendant claims there was insufficient evidence to support the jury’s finding as to both

his purpose and his motivation

.

As to purpose
, the prosecut ion was required to prove that defendant intended to

engage in lewd or lascivious behavior with a minor

. In arguing there was insufficient9

evidence to find this element satisfied

, d efendant relies on the same arguments he makes

under section 288.3

. T hose arguments fail for the same reasons stated above

.

As to motivation, the prosecution was required to prove that defendant was

motivated by an unnatural sexual interest in children, and that this motivation was a

substantial factor in arranging the meeting

. ( Fromut h, supra

, 2 Cal.App. 5th at p. 103.)

“ ‘ “The substantial factor standard is a relatively broad one, requiring only that the

contribution of the individual cause be more than negligible or theoretical. ” ’ ” ( Id. at

p. 105.) We “ p resume that the jury drew all reasonable inferences that could support its

finding that defendant had an unnatural or abnormal sexual interest in children.” ( Id . at

p. 104.) Case law explains that when it comes t o children, it is generally understood that

a defendant ’ s sexual interest in them will be considered abnormal and not within

accepted standards of social behavior. (See Yuksel, supra
, 207 Cal.App.4th at p. 855

[noting that ‘ “there can be no normal sexual interest in any child” ’] ; Fromuth

, at p. 105

[the defendant’s online pursuit of a decoy posing as a 15

- year

- old girl supported “ a

reasonable inference that his sexual interest in [the girl] was demonstrative of his general

sexual interest in child ren”] .)

The record here allowed the jury to conclude that defendant had an abnormal and

unnatural sexual interest in children and was motivated by that interest when he arranged

the meeting with Agent Rueter

. On April 9, 2021, Defendant texted the phone number

listed in Agent R ue ter’s ad inquiring if she was available and stating he wanted “F ull

service.” Three days later, he asked what time she would be available

. Agent Kurtz

stated she “wil be av a lble aftr school in aftrnoon 2day” and asked

, “Cu d up pik me up n

giv me ride? 2 yung 2 drive yt.” A jury could reasonably conclude that this response

informed defendant that Agent R ue ter was under 1 8 years of age. Less than three

minutes later, d efendant responded, “Send me your address please.” Roughly 30 minutes

later, defendant text ed

, “Where can I come pick you up.” Another 30 minutes later, he

texted, “Where are you” and

, “Send me your address please where I can come pick you10

up.” Later th at evening, defendant text ed , “Are you available now

, ” “??,” and “Hello.”

From t hese messages , it was reasonable for the jury to infer that defendant had an

unnatural and abnormal sexual interest in persons under age 18 and was motivated by that

interest in arranging a meeting with her

. The evidence also supports the conclusion that

this interest remained after he learned Agent Rueter was only 13 years of age because he

proceeded to arrange a meeting with her and stated

, “ [O] kay” when she asked h im to

bring condoms

. Defendant’s attempt to distinguish these facts from those presented in

Hanna and Fromuth i s unsuccessful

. Again, Hanna did not concern this issue and

F ro muth d id not establish a template for showing the prohibited motivation.

Defendant ’s reliance on People v. Carskaddon (1957) 49 Cal.2d 423 is similarly

misplaced

. In Carksaddon , the defendant was convicted of child molestation

. ( Id . at p.

pp. 424 .) But t he evidence showed that the defendant was in the company of a 6

- year

- old

girl in a public park, walked down a public street with the girl by his side, and when

stopped and queried by an officer, stated that the girl was lost and he was taking her

home. ( Id . at p. 42 5 .) The conviction was reversed b ecause “ t here [ was ] no substantial

evidence of anything more than friendly noncriminal activity on the part of [the]

defendant toward the girl.” ( Ibid .) Such is not the case here.

Lastly, we r eject defendant’s suggestion that our conclusion render s the

motivation element of section 288.4 surplusage by making it coextensive with the intent

element

. F ro muth is correct that “proof of the specific intent element does not

necessarily satisfy the ‘motivated by’ element,” but the same evidence can establish both

elements. ( Fromuth

, supra , 2 Cal.App.5th at p. 106.)

For these reasons, we reject defendant’s substantial evidence challenges.

II

Prosecutorial Misconduct

Although a prosecutor possesses wide latitude to vigorously argue his or h er case

and to make fair comment upon the evidence ( People v. Edwards (2013) 57 Cal.4th 658,11

740 )

, “ ‘ a prosecutor commits reversible misconduct if

. . . he or she makes use of

“ deceptive or reprehensible methods ” when attempting to persuade either the trial court

or the jury, and it is reasonably probable that without such misconduct, an outcome more

favorable to the defendant would have resulted

. ’ ” ( People v. Fuiava (2012) 53 Cal.4th

622, 679

. ) “ [I]t is improper for the prosecutor to misstate the law generally [citation],

and particularly to attempt to absolve the prosecution from its prima facie obligation to

overcome reasonable doubt on all elements. ” ( People v. Marshall (1 996) 13 Cal.4th 799,

831. )

“ When attacking the prosecutor ’ s remarks to the jury, the defendant must show

that, ‘ [i]n the context of the whole argument and the instructions ’ [citation], t here was ‘ a

reasonable likelihood the jury understood or applied the complained

- of comments in an

improper or erroneous manner. [Citations.] In conducting this inquiry, we “ do not

lightly infer ” that the jury drew the most damaging rather than the least damaging

meaning from the prosecutor ’ s statements. ’ ” ( Pe ople v. Centeno (2014) 60 Cal.4th 659,

667 ( Centeno ) .) The court must consider the challenged statements in the context of the

argument as a whole to make its determination. ( People v. Cowan (2017) 8 Cal.App.5th

1152, 1159 .)

Defendant challenges the prosecutor’s closing argument on two topics: (1) the

intent elements of sections 288.3 and 288.4 and (2) the reasonable doubt standard.

Acknowledging there were no contemporaneous objections to the prosecutor’s closing

argument, defendant asks us to reach the merits either in the exercise of our inherent

authority or because there are grave doubts of his guilt and the acts of misconduct

materially contributed to the verdict. Alternatively

, defendant contends his trial counsel

was ineffective for failing to object. As explained below, w e conclude defendant has not

demonstrated prosecutorial error.12

A. Remarks Regarding Intent Element s

During closing argument, the prosecutor listed the elements of each count and

argued how she had proven those elements

. As to count 1

, she argued the intent element

was proven because defendant stated he wanted “full service” and Agent R ue ter

explained the meaning of that term based on her experience and training. Then the

prosecu tor pointed to the audio call “when [Agent R ue ter] says at least three times that

she’s under 14 years old, she also says, [‘]C ould you bring condoms, too? [’] And his

response was, [‘]O kay. [’] [ ¶ ] So we are argui ng here that when he went out there, he

w as going to willfully

– he was going

– to intend to touch what he thought was a child

that was going to be out there

. . . .”

The prosecutor referred to this same argument in discussing count 2 :

“Defendant’s also charged with Count 2, that’s Penal Code section 28 8.3 , contact with a

minor for a sexual offense . And here we have three elements. .

. . On the second

element, when [he contacted or communicated with the minor], he intended to commit

the 288 [subdivision] (a) involving [ the ] minor

. . . . [ ¶ ] What did he intend to do when

he got out there? This is about intent. It’s not whether the act was completed. Again, he

didn’t stop texting. He didn’t say, [‘]Y ou’re too young. [’] Hang up the phone with her.

He said, [‘]O kay. Send me an address. [ ’] [ ¶ ] Commit the 288 [subdivision] (a), again,

we don’t need to actuall y prove that it happened but that he intended for it to happen.

And 288 [subdivision] (a) is someone is under 14 years old; again [

, ] full serv ice, bring

condoms; and three times, [‘ ] I’m almost 14. [’] ”

And the prosecutor relied on the same argument as to the intent element of count

3 : “So, again, lewd or lascivious behavior. We’re going back to the full service. That’s

what he initially wanted. He asked to save a phone number. He continued to text and

call that same phone number until April the 1 2th , and then she asked, [‘]C an you bring

condoms? [’] So that was the intention here .”13

Defendant contends the prosecutor committed misconduct by representing that

defendant’s request for “full service” satisfied the requirement for intent to commit a

lewd or lascivious act with a minor. But d efendant omits part of the prosecutor’s

arguments. The prosecut or argued that defendant started his conversation with Agent

R ue ter with the intent fo r lewd or lascivious act s with her and that this intent remained

after learning Agent R ue ter was only 13. We see no misconduct in that argument.

Defendant also contends the pro secutor improperly argued it was defendant’s

burden to prove that his original “full service” intent no longer applied after he knew

Agent Rueter’s age. Defendant grounds this claim in the following statement by the

prosecutor : “Now, the defense also tal ked about all these red flags of

– that were there of

Special Agent R ue ter being a minor, and yea h , there were lots of red flags. .

. . But

beyond the hints and red flags, there was actual evidence, and that’s on the audio.

There’s actual evidence: [‘] I’m 13. [’] That’s not a hint. That’s not a red flag. That’s

actual evidence : [‘] I’m 13. I’m going to be 14 soon. [’] Again, i t’s more than a hint. It’s

straight up saying that. And there was the third time, but this defendant didn’t just stop

and block her; didn’t just end the conversation; didn’t just say, oh, yeah, it’s too risky,

goodbye. He continued. As a matter of fact, he didn’t put on the brakes here. He put the

gas on from Lodi to Lathrop. He went forward. It didn’t stop him once he learned that

she was 13. He continued. That’s the attempt. That’s more than just stopping.” We

disagree with defendant’s characterization of this state ment. The prosecutor argued the

People’s view of what the evidence showed and made no express or implied suggestion

that defendant bore the burden of proof

. ( See People v. Bennett (2009) 45 Cal.4th 577,

596 [comments do not impermissibly shift the burden of proof when the prosecutor does

not “state or imply that defendant had a duty to produce evidence”].) Because we see no14

misconduct, we need not reach defendant’s arguments that the asserted misconduct was

prejudicial. 2 ( People v. Tully (2012) 5 4 Cal. 4th 952, 1023.)

B. Re marks Regarding Reasonable Doubt

In closing argument, defendant’s counsel relied on reasonable doubt. He argued

the advertisement and the text messages did not provide proof beyond a reasonable doubt

that defendant intended t o “attempt a child molest with an underage 14

- year

- old.” And

he insisted that Age nt Rue ter’s later suggestion , after revealing her age of 13, that she and

defendant “have fun” did not provide “unequivocal proof beyond a reasonable d o ubt”

that de fendant intended to have sex with her

.
The prosecutor responded to these arguments in her rebuttal , beginning with the

following statement : “So reasonable doubt is proof beyond a reasonable doubt that

leaves you with an abiding conviction that the charg e is true. The evidence need not

eliminate all possible doubt because everything in life is open to some possible or

imaginary doubt. [ ¶ ] So my burden is not proving that there’s no doubt at all. It’s that

there’s no reasonable doubt. So was it reasonab le? And that’s what you have to

determine, if I have proven it beyond a reasonable doubt or not. So when you look at all

the evidence

– and I ask

– I know some of you took notes and some of you didn’t. Use

2 Defendant contends there is strong evidence the jury was confused by the prosecutor’s intent arguments because during deliberations they asked

, “ [a] s to count 1,
does the defendant have to believe that the child was under 14, or does that have to be established by fact / testimony?” At trial, defense counsel argued the question “ sounded like burden shifting ” and called it a confusing question. The t rial court agreed it was a confusing question and directed the jury to refer to the jury instructions on attempt,

section 288 , subdivision (a), and mistake of fact. Defendant contends that the jury’s question

, combined with the jur y’s guilty verdicts on c ounts 2 and 3 and hung verdict on count 1, shows that the jury remained confused as to the intent required for counts 2 and

3. In reply, defendant suggests that the jury’s request for the closing argument transcript,
which the trial court denied, also sho ws the jury was influenced by the closing arguments and confused regarding intent

. Because defendant has not shown misconduct, we do not reach this argument.15

your notes. Use your memory. When you go back there, discuss it between all of you

and see if there’s a reasonable doubt. And I want to bring up that there is no reasonable

doubt here. ” ( Italics added.)

Defendant takes issue with th e prosecutor’s question, “ So was it reasonable?” He

claims this question “ effectively shifted the jury’s focus from evaluating the evidence to

evaluating the doubt.” Defendant likens this question to the mischaracterization of

reasonable doubt presented in Pe ople v. Hill (1998) 17 Cal. 4th 800, where the prosecutor

stated th at reasonable doubt means

, “you have to have a reason for this doubt. There has

to be some evidence on which to base a doubt .” ( Id . at p. 831.) After a defense objection

was overruled, the prosecutor in Hill reiterated, “ ‘There must be some evidence from

which there is a reason for a doubt. You can’t say, well, one of the attorneys said

so.’ (Italics added.) ” ( Ibid .) Although the question was close, our Supreme Court

concluded it was reasonably likely tha t that the prosecutor’s comments taken in context,

“were understood by the jury to mean defendant had the burden of producing evidence to

demonstrate a reasonable doubt of his guilt.” ( Id . at p. 832.) We see no parallel between

the offending statement in Hill and the statement here. The question

, “So was i t

reasonable?” appears within a larger, accurate statement regarding reasonable doubt.

“[T]here is no reasonable likelihood the jurors would have underst oo d [ this question ] as

imposing any burden on de fendant. ” ( People v. Y oun g (2005) 34 Cal. 4th 1149, 11 96.)

Defendant claims the statements by the prosecutor th at followed crossed the line

into improper territory. Specifically, defendant focuses on the following example the

prosecutor presented : “So there’s a guy. He walks into a bank, and he’s wearing a black

ski mask. He’s wearing all black clothing, and he shows up, and he doesn’t say anything,

and he goes up to the teller

, and he slips her a note. In the note it says, give me $2 5,000

now, and he puts a gun on the counter when he hands her the note. Now, later, he tells

people that he had the mask on becaus e he had laryngitis that day and he didn’t want to

give it to anybody. So he had this mask on. He wore all black clothing t hat day because16

all his laundry was dirty, so he ran out of clean clothes, and that’s all he had to wear.

And he ended up pass ing the note to the teller because he had laryngitis, and he didn’t

want to give her laryngitis. That’s why he gave her the note instead of talking to her. He

put the gun on the counter because his holster was broken, so he had to place it

somewhere, so he put it on the counter. Tell me, ladies and gentlemen, it is possible he

had laryngitis? Sure. Is it possible he didn’t have any clean laundry? Sure. Is it possible

that he slipped the note to the teller because of the laryngitis and he didn’t want to get her

sick? Yeah, that’s possible. Is it possible he ended up putting the gun on the counter

because his holster was broke ? Yeah, it’s possible. But all of that together, is that

reasonable? No. And that’s what we have here. Everything together it is not reasonable

doubt. ” The prosecutor then summarized her view of the evidence and concluded

,

“ T here’s no reasonable doub t here, ladies and gentlemen.”

Defendant contends this example “ had absolutely nothing to do with this case ” and

“ ‘confounded the concept of rejecting unreasonable inference with the standard of proof

beyond a reasonable doubt,’ ” analogizing it to the example used in Centeno

.

But Centeno is distinguishable . In Centeno , the p rosecutor used an incomplete

and partially inaccurate map of California to illustrate the concept of proof beyond a

reasonable doubt

, ask ing the jury whether there could be reasonable doubt the map was

of California, even with inaccurate and missing information

. ( Centeno, supra
, 60 Cal.4th

at p p

. 6 65

- 666

. ) The co urt held that the “ use of the visual image misstated the burden of

pr oof, misled the jury into believing its task was analogous to solving a picture puzzle

unrelated to the evidence, and failed to accurately portray the state of the evidence

presented at trial

. [Citation.] ” ( People v. Meneses (2019) 41 Cal.App.5th 63, 72.) In

addition, the prosecutor “repeatedly suggested that the jury could find [the] defendant

guilty based on a ‘reasonable’ account of the evidence.” ( Centeno, supra , at p. 7 3, italics

omitted.)17

Here, the prosecutor did not present a visual image or other g raphic display to

explain reasonable doubt

. S he also did not leave “the jury with the impression that so

long as her interpretation of the evidence was reasonable, the People had met their

burden.” ( Centeno, supra
, 60 Cal.4th at p. 672.) Rather, she att empted to exp la i n the

difference between possible doubt and reasonable doubt consistent with the statute

defining the burden of proof

. ( § 1096 ; see People v. Bell (2019) 7 Cal. 5th 70, 111

[approving prosecutor ’s example of a possible or imaginary, but unlikely, occurrence] .)

Moreover, w hen considered in the context of the entire record, we see no

reasonable likelihood that the jury would have understood the prosecutor’s comments in

an improper or erroneous manner. ( See Centeno, supra
, 60 Cal. 4th at p. 667.) Following

the prosecutor’s rebuttal, the court inst ructed the jury on the applicable law and explained

that the jury was required to follow the court’s instructions over conflicting attorney

c omments. The court explained that a defendant in a criminal case is presumed innocent

and that this presumption requires the People to prove a defendant guilty beyond a

reasonable doubt. “Proof beyond a reasonable doubt,” explained the court, is “proof t hat

leaves you with an abiding conviction that the charge is true. The evidence did not

eliminate all possible doubt because everything in life is open to some possible or

ima ginary doubt.” This instruction carr ies more weight with a ju ry than the prosec utor’s

argument

. ( People v. Mendoza (2007) 42 Cal.4th 686, 703. ) Defendant ’s contention that

“C ounts 2 and 3 were particularly susceptible ” to a reasonableness argument fails to rebut

the presumption that the jury understood and followed the court’s instructions

. ( P eople v.

Ortiz (2012) 208 Cal.App. 4th 1354, 1370 .)

III

Entrapment

Entrapment is a n affirmative defense that the defendant has the burden of proving

by a preponderance of the evidence. ( People v. Farley (1971) 19 Cal.App.3d 215

, 224 )

“ [ T ] he test for entrapment focuses on the police conduct and is objective.” ( People v.18

Watson (2000) 22 Cal.4th 220, 223 .) It is established if the law enforcement conduct is

“ likely to induce a normally law

- abiding person to commit the offense.” ( Ibid .) Police

conduct that offers the suspect an opportunity to commit a crime is not entrapment.

( I bi d ..) Thus, a decoy program is permissible. ( Ibid .) This standard presumes that a law

abiding person would “normally resist the temptation to commit a crime presented by the

simple opportunity to act unlawfully.” ( Ibid .)

On the other hand, “ it is impermissible for the police or their agents to pressure the

suspect by overbearing conduct such as badgering, cajoling, importuning, or other

affirmative acts likely to induce a normally law

- abiding person to commit the crime.”

( People v. Barraza (1979) 23 Cal.3d 675, 690 .) For example, “a ffirmative police conduct

that would make commission of the crime unusually attractive to a normally law

- abiding

person will [] constitute entrapment. Such conduct would include, for example, a

guarantee that the act is not illegal o r the offense will go undetected, an offer of

exorbitant consideration, or any similar enticement.” ( Ibid .)

“ Entrapment is ordinarily a fact question. ” ( People v. Lee (1990) 219 Cal.App.3d

829, 836 .) “ An appellate court will only find entrapment as a matter of law where ‘ the

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

inference. ’ ” ( Ibid .) “ While case law concedes the possibility of such a finding by an

appella te court, it would be a rare result indeed. ” ( People v. Thoi (1989) 213 Cal.App.3d

689

, 693.)

Here, the jury reached the conclusion that the police conduct did not constitute

entrapment. We cannot conclude that the evidence is so compelling and uncontradicted

that the jury could only reach the opposit e conclusion. Defendant claims the

adve rtisement “drew him in , and it was only at the last minute that he was informed that

the ‘escort’ w as actually a min or.” Specifically, he takes issue with Agent R ue ter’s use

of a use r

- friendly escort website and the ad’s portrayal of Agent R ue ter as 21 years of age

with photographs of a 25

- year

- old woman

. We are not convinced the ad and text19

exchange leading up to the point where Agent R ue ter revealed she was only 13 was likely

to induce a n ormally law

- abiding person to continue talking to and arrange a meeting

with Agent R ue ter after her younger age was re ve al ed . T he jury was able to reasonably

conclude that there was no badgering, cajoling, or other overbearing conduct in the

exchange. (See Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994)

7 Cal.4th 561, 569 [“ ‘r uses, sti ngs, and decoys are permissible stratagems in the

enforcement of criminal law, and they become invalid only when badgering or

importuning takes place to an extent and degree that is likely to induce an otherwise law

abiding person to commit a crime ’ ”].)

Defendant also point s to the conversation that followed the moment that Agent

R ue ter revealed she was only 13 . He claims that “he balked” after learning her age and,

in response, Agent R ue ter “ importuned, cajoled, and promised that they could ‘just have

fun,’ which wouldn’t be ‘risky.’ ” Defendant contends Agent R ue ter’s actions

constituted “affirmative actions taken to induce [him] to continue with the

communication and meeting. ” And, according to defendant, her request that he bring

condoms was an additional affi rmative act “trying to induce him to commit a crime.” But

the jury did not agree with defendant

, and we cannot conclude the jury clearly erred in its

view of the evidence. There is no evidence of cajoling or badgering

, and a reasonable

jury could conclud e that Agent R ue ter’s conduct did not amount to importuning or offer a

guarantee of legality

. Viewing the record in the light most favorable to the judgment, as

we must, a reasonable jury could find that Agent R ue ter , at most, extended an

opportunity for defendant to commit a crime.

Defendant’s comparison to Fromuth

, supra
, 2 Cal.App.5th 91 is unpersuasive. In

Fromuth , the court considered whether the trial court erred in refusing to instruct on

entrapment. ( Id. a t p. 109.) Here, the court gave the entrapment instruction, limiting our

inquiry on appeal to whether the evidence was so compelling and uncontradicted the jury

could draw no other reasonable inference than defendant was entrapped.20 DISPOSITION

The judgm ent is affirmed.

/s/

MESIWALA

, J.

We concur:

/s/ MAURO, Acting P. J.

/s/

DUARTE , J.