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Filed 1/19/21 P. v. Butte CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM FELIX BUTTE, JR.,

Defendant and Appellant.

 A157561

 (Contra Costa County

 Super. Ct. No. 05-172131-5)

William Felix Butte appeals from an order of probation after a jury 

convicted him of meeting a minor for lewd purposes (Pen. Code, § 288.4,

subd. (b); count one), attempting a lewd act upon a child (id., §§ 664, 288, 

subd. (c)(1); count two), and sending harmful matter to a minor (id., § 288.2, 

subd. (a)(1); count three). Butte argues the judgment must be reversed due to 

purported prosecutorial misconduct and the trial court’s exclusion of expert 

testimony. We affirm. 

BACKGROUND

A.

In August 2017, Darryl Holcombe, a Senior Inspector with the Contra 

Costa County District Attorney’s Office, was investigating personal ads 

posted on Craigslist. Holcombe discovered an ad, posted by “DaddyW69,” 

entitled “Princess, where are you?” The text of the ad asked, “Are you tired of 
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boys your age and curious to have a man who makes all the decisions[?]” It

also said, “I am looking for a naughty little girl who likes to be a Princess” 

and “[a]ge doesn’t matter.” The ad implored, “[b]e serious about meeting up, 

I’m not into endless messages.” The ad also included a cartoon depicting a 

woman having sex with a man she called “Daddy.” 

Pretending to be a 15-year-old girl named “Lizzy,” Inspector Holcombe 

responded to the ad, using a messaging application known as KIK. Shortly 

after their conversation began, “DaddyW69”, who was later determined to be 

Butte, identified himself as a 48-year-old man. When Lizzy told Butte that 

she was 15 years old, Butte replied, “OMG, [love] it.” 

Inspector Holcombe sent Butte two photos from a female colleague, who 

was 14 years old when the photos were taken. Lizzy gave additional 

indications that she was a teenager, such as telling Butte that she was in 

math class at school. Lizzy also told Butte that she liked to play soccer and 

babysit, and she sent Butte a picture of a school locker. Butte also asked 

Lizzy whether she had ever had sex, to which she said “[n]o.” He then asked 

when she started masturbating. Throughout the conversation, Lizzy used 

abbreviations such as “idk” and “lol.” Undeterred, Butte asked Lizzy if she 

was a police officer (Lizzy responded simply, “A what?”), said he hoped they 

could meet in person, and asked if she could meet after school. 

Butte asked Lizzy several graphically sexual questions, such as

whether she would like “Daddy to lick and finger [her] hot little pussy[?]” He 

also asked about Lizzy’s experience with pornography and instructed her on 

how to view “daddy-daughter” pornography without her mother seeing it in 
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her online browsing history. Butte instructed Lizzy to “look at it alone and 

play with [her] sweet pussy like a good naughty girl.”

After Lizzy said she usually went to a Starbucks in a nearby mall after

school, Butte suggested that they meet there that afternoon and promised to

buy her a Starbucks drink. When Lizzy explained she did not have a car or a 

ride, Butte assured her, “I have both.” To ease Lizzy’s qualms about being 

seen, Butte said, “Well we can bump into each other and I can get two drinks 

and then you just grab it like you ordered it.” 

Butte told Lizzy he would teach her how to orally copulate him and

asked if she wanted “Daddy to slide [his] think [sic] cock in [her] tight 

pussy[?]” When Lizzy asked if they would need protection, Butte said he had 

had a vasectomy and would be “gentle.” Immediately thereafter, they agreed 

to meet at the Starbucks at 1:30 p.m., and Lizzy asked Butte to buy her a 

“carmel [sic] frap[.]” 

When police officers arrived at the Starbucks at the agreed time, Butte 

was sitting on a bench outside. Inside the Starbucks, Holcombe found two 

“carmel [sic] frap” drinks waiting at the counter. When Butte was arrested, 

officers seized his phone and downloaded his KIK chat with Lizzy. Despite 

the existence of plenty of open parking spaces near the Starbucks, Butte’s car 

was parked some distance away, on the upper floor of the parking lot. 

Butte admitted to Inspector Holcombe that he posted the Craigslist ad, 

asked all the sexual questions reflected in the downloaded messages, and told 

Lizzy that he wanted to send her links to pornographic videos. Butte was 

asked, “So what made you want to have sex with a 15-year-old girl?” He 

responded, “[C]uriosity. Just stupidity.” Butte also said, “I was just curious 

if it really existed.” When Inspector Holcombe asked for clarification, Butte 
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said he was curious about whether “[t]hese teenagers . . . actually meet and 

stuff like that.” 

B.

At trial, Butte testified that he did not intend to contact any minors

when he posted his ad, but instead was interested in “role-play or chatting 

online” with women pretending to be “little girls.” He did not believe Lizzy 

was in fact 15 years old because she would not send him a “live photo” or “live 

chat” with him. Butte had previously met with people after being introduced 

online. In one instance, the person claimed to be a woman but was in fact a 

man. On another occasion, a person portrayed herself as “a little girl” but 

was a 25-year-old woman. Butte also said he had no intention of having sex 

with Lizzy. He asked Lizzy graphic questions only to determine her identity

and not for sexual gratification. 

C.

The jury convicted Butte of meeting a minor for lewd purposes, 

attempting a lewd act upon a child, and sending harmful material to a minor. 

At sentencing, the trial court placed Butte on probation for five years, on 

condition that he serve one year in county jail, complete sex offender 

treatment, and register as a sex offender (Pen. Code, § 290). 

DISCUSSION

A.

Butte argues the prosecutor committed misconduct during opening 

statement that deprived him of a fair trial. We disagree. 

1.

The United States Constitution is violated when a prosecutor’s conduct

is so egregious that it infects the trial with such unfairness as to make the 

resulting conviction a denial of due process. (People v. Flores (2020) 9 Cal.5th 
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371, 403.) A prosecutor’s lesser misconduct will violate state law “ ‘ “if it 

involves the use of deceptive or reprehensible methods to persuade the . . .

jury.” ’ ” (Ibid.) We review the trial court’s determinations on prosecutorial 

misconduct for abuse of discretion. (People v. Bennett (2009) 45 Cal.4th 577, 

595.) We will not reverse a judgment for prosecutorial misconduct in an 

opening statement “ ‘unless the misconduct was prejudicial or the conduct of 

the prosecutor so egregious as to deny the defendant a fair trial.’ ” (People v. 

Wrest (1992) 3 Cal.4th 1088, 1109.) 

2.

During opening statement, the prosecutor told the jury, “The defense 

[is] trying to say that [Butte] thought that he was talking to an adult. But 

the evidence in this case . . . will prove to you beyond a reasonable doubt that 

the defendant was going there to meet with a 15 year old girl. . . . [¶] In the 

body of evidence that you’re going to receive, a few things will be established 

beyond all possible doubt. The first of which is . . . the defendant . . . is a 

pedophile.” Defense counsel objected that the statement was argumentative

but did not request an admonition. The trial court sustained the objection. 

Later that day, defense counsel made an oral motion for mistrial, 

arguing the prosecutor’s “pedophile” comment was incurable misconduct 

because the prosecutor knew it lacked evidentiary support. Defense counsel 

also argued the term (pedophile) refers to someone who is sexually attracted 

to prepubescent children, typically under the age of 13. The prosecutor 

opposed defense counsel’s motion, asserting “[a] pedophile is someone who 

has a sexual attraction to children. I believe the evidence demonstrates that 

incredibly clearly.” 

The trial court denied Butte’s motion, explaining that the prosecutor’s 

use of the term “pedophile” in opening statement would not deny Butte a fair 
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trial because the trial court instructed the jury that statements of counsel 

were not evidence. 

3.

Butte has not shown prejudicial misconduct. 

When a misconduct claim arises from the prosecutor’s comments before 

the jury, the initial question “ ‘ “is whether there is a reasonable likelihood 

that the jury construed or applied any of the complained-of remarks in an 

objectionable fashion.” ’ ” (People v. Adams (2014) 60 Cal.4th 541, 568.) 

There are multiple reasonable understandings of the word “pedophile.” (See 

Johnson v. Department of Justice (2015) 60 Cal.4th 871, 883 [noting that 

pedophiles “by definition” target prepubescent minors]; Merriam-Webster 

Dict. Online (2020) <https://www.merriamwebster.com/dictionary/pedophilia#medicalDictionary> [as of Jan. 19, 2021]

[defining pedophilia as “sexual perversion in which children are the preferred 

sexual object”].) 

Here, the prosecutor’s opening statement made clear this case involved 

a law enforcement officer posing as a 15-year-old girl; there was no mention 

of prepubescent children. We find it unlikely that the jury understood the 

word “pedophile,” in this context, to mean Butte was sexually attracted to 

prepubescent minors. (See People v. Dykes (2009) 46 Cal.4th 731, 772 [“ ‘we 

“do not lightly infer” that the jury drew the most damaging rather than the 

least damaging meaning from the prosecutor’s statements’ ”].) 

Butte admitted, on cross-examination, that he was aroused by a 

graphic of a grown man having sex with his daughter. He also posted an ad 

seeking a “naughty little girl” and sent graphically sexual texts, along with 

explicit invitations to engage in sexual activity, to someone he believed was a 

15-year-old girl. Given this record, we cannot agree with Butte that the 
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prosecutor’s use of the word “pedophile” was wholly unsupported. We 

conclude there was no misconduct. 

In any event, the trial court repeatedly instructed the jurors that the 

attorneys’ statements were not evidence and that the jury should decide the 

case based on the evidence. Given this cautionary instruction and the 

prosecution’s strong case against him, there is no reasonable probability that 

any fleeting impropriety in the opening statement prejudiced Butte. (People 

v. Flores, supra, 9 Cal.5th at p. 405; People v. Bennett, supra, 45 Cal.4th at p. 

595 [“When a trial court sustains defense objections and admonishes the jury 

to disregard the comments, we assume the jury followed the admonition and 

that prejudice was therefore avoided”].)

B.

Butte also contends the trial court abused its discretion in excluding, 

under People v. Kelly (1976) 17 Cal.3d 24 (Kelly), the opinion testimony of his 

online communications expert. We find no abuse of discretion. (See Sargon 

Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 

773 [standard of review]; People v. Richardson (2008) 43 Cal.4th 959, 1008 

[same].)

1.

In order to be admissible, expert testimony must “relate to a subject 

sufficiently beyond common experience as to assist the trier of fact and be 

based on matter that is reasonably relied upon by an expert in forming an 

opinion on the subject to which his or her testimony relates.” (People v. 

Olguin (1994) 31 Cal.App.4th 1355, 1371; accord, Evid. Code, § 801.)1

1 Undesignated statutory references are to the Evidence Code.
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“When admission of expert testimony relating the use of novel scientific 

methods or techniques is at issue, the proponent of the evidence must 

demonstrate the technique’s reliability through testimony from an expert 

qualified to opine on the subject. The technique’s reliability, in turn, depends 

on a showing that it has achieved general acceptance among practitioners in 

the relevant field. Finally, the proponent of the evidence must show any 

procedures necessary to ensure the technique’s validity were properly 

followed in the given case. [Citation.] The purpose of these threshold 

requirements—commonly referred to as the Kelly test—is to protect against 

the risk of credulous juries attributing to evidence cloaked in scientific 

terminology an aura of infallibility.” (People v. Peterson (2020) 10 Cal.5th

409, 444.) General acceptance means “a consensus drawn from a typical 

cross-section of the relevant, qualified scientific community.” (People v. 

Leahy (1994) 8 Cal.4th 587, 612.) 

2.

In support of Butte’s theory that he had no intent to engage in lewd 

acts with a 15-year-old, the defense offered the testimony of Professor Jeffrey 

Hancock. Defense counsel proposed that Hancock was an expert in “online 

communications.”

Before trial, the prosecution moved to exclude Hancock’s proposed 

opinion testimony on the grounds, among others, that it was speculative, the 

jury was equally qualified to evaluate the communications between Lizzy and 

Butte, and that the defense could not establish the foundational 

requirements under Kelly. 

The trial court held a section 402 hearing. Hancock testified he would

opine that a reasonable person would suspect “Lizzy” was not 15 years old. 

Hancock would not opine that a reasonable person would think Lizzy was 
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over 18 years old. Defense counsel also indicated Hancock would opine that

there was insufficient evidence Butte “groomed” Lizzy and that their text 

conversation, via KIK, was atypical for a “sting operation.” 

Hancock’s opinions were based on “dozens of articles that have 

examined how people communicate online and the kinds of beliefs people hold 

when they are attracted to another person online.” Hancock had published 

two articles on the subject, based on his review of over 500 transcripts of 

online communications between pedophiles and victims that resulted in 

criminal convictions. Hancock’s opinion was also based on a computerautomated analysis of language used, which he said could indicate the age or 

gender of a person. In addition to the language used by the purported minor, 

in this particular case Hancock relied on other “characteristics” of the 

exchange, such as a comparison of Lizzy’s indicated school hours to the 

dismissal time of schools in the area; the fact that schools in the area forbid 

cell phone use at school; Lizzy’s use of some terms that were atypical for a 15-

year-old girl; and Butte’s repeated requests for live photos. 

After reading two of Hancock’s published articles, which are not 

included in the appellate record, the trial court excluded Hancock’s 

testimony, agreeing with the People that Kelly’s scientific reliability 

requirements were unsatisfied. The trial court also ruled that Hancock’s 

proffered opinion that a reasonable person texting with Lizzy would not 

believe Lizzy was 15 years old—which Hancock arrived at on the basis of 

Lizzy’s school schedule, the district policy regarding use of cell phones at 

school, and her use of phrases like “kicking it”—was not the proper subject of 

expert testimony. 
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3.

Butte does not challenge the trial court’s application of Kelly to this 

case or argue that Hancock’s opinion regarding Lizzy’s age would assist the 

jury (§ 801, subd. (a)). He merely contends the trial court abdicated its 

gatekeeping role because defense counsel had no opportunity to present 

evidence to show the reliability of Hancock’s technique. Butte is wrong.

Here, the record clearly shows that a section 402 hearing was held to 

give Butte an opportunity to demonstrate the reliability of Hancock’s 

technique. (See People v. Peterson, supra, 10 Cal.5th at p. 444; Kelly, supra, 

17 Cal.3d at p. 30, italics omitted [“reliability of the method must be 

established, usually by expert testimony”].) At that hearing, the trial court 

asked Hancock if he could cite a case or other authority showing general 

acceptance in the community, but Hancock could not. The trial court also 

reviewed Hancock’s published articles and stated that, in his 2014 article, 

Hancock conceded his technique was new and not scientifically validated. 

The court further indicated that Hancock’s 2017 article did not claim that his 

technique had then been scientifically accepted. 

By failing to provide us with these articles, Butte has not met his 

burden on appeal to demonstrate the trial court abused its discretion in 

concluding the evidence was inadmissible. (See People v. Whalen (2013) 56

Cal.4th 1, 85 [appellant’s failure to provide an adequate record requires 

resolution against appellant]; Denham v. Superior Court (1970) 2 Cal.3d 557, 

564 [judgment challenged on appeal is presumed to be correct and appellant 

bears burden to affirmatively demonstrate error].) 

The record before us supports the trial court’s conclusion that Butte 

failed to meet his burden below to show Hancock’s techniques were reliable. 

(See People v. McWhorter (2009) 47 Cal.4th 318, 365, 367 [no abuse of 
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discretion in excluding opinion testimony when Kelly foundational 

requirements not met because expert failed to identify computer software 

used to enhance images and failed to satisfactorily explain process]; People v. 

Dellinger (1984) 163 Cal.App.3d 284, 293 [expert’s opinion testimony 

erroneously admitted after expert testified she did not know of prior 

experiments using same technique and “there was no corroborative testimony 

that this technique was accepted within the scientific community”].) 

DISPOSITION

The judgment is affirmed.
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_______________________

BURNS, J. 

We concur:

____________________________

SIMONS, ACTING P.J.

____________________________

NEEDHAM, J.

A157561