The PEOPLE, Plaintiff and Respondent, v. Edward BURNS, Defendant and Appellant. IN RE: Edward BURNS, on Habeas Corpus.
Appellant Edward Burns was charged with and convicted of numerous counts arising out of a “sting” operation run by law enforcement officials. Specifically, Burns was convicted of soliciting another person to commit or join in committing a lewd act upon a child. (Pen.Code,2 § 653f, subd. (c).) He was also convicted of three “attempt” crimes: two counts of attempted child molestation, one as to Patty and one as to Jeff (§§ 664/288, subd. (a)); and one count of attempted use of a minor as a model in a photo of sexual conduct. (§§ 664/311.4, subd. (c).)
Burns first contends there was insufficient evidence to support his conviction of the “attempt” crimes. Second, he claims the trial court had a sua sponte obligation to modify the instruction on the defense of entrapment. Third, he contends the instruction on the count of attempted “employment of a minor as a model in a photo of sexual conduct” was prejudicially erroneous. Finally, he claims on appeal, and by his petition for writ of habeas corpus, that he was denied effective assistance of counsel because his trial attorney's closing argument withdrew the “entrapment” defense to the “attempt” counts.
I. Factual Background
Several of Burns's contentions are fact-sensitive, requiring a statement in considerable detail of the facts leading to Burns's arrest.
Bruce Ackerman was a special deputy with the United States Marshal's office specializing in investigating the abuse and sexual exploitation of children. In January 1990, he commenced a “sting” operation by placing an advertisement in Swinger's Digest.3 The ad read: “White female with children seeks the right man who understands my needs & those of my children, society does not. Please be discreet.” The ad was phrased in terms to elicit responses from persons with an interest in child pornography and/or molestation, without being so blatant or explicit as to raise suspicions the ad was placed by law enforcement.
Ackerman received approximately 270 letters in response to the ad. The sting operation evaluated all of the initial responses, one of which was from Burns, to “screen out” persons whose interests may not have extended to the targeted conduct. This screening process involved examining the letters for certain linguistic phrases containing clues of the writer's potential interest in the prohibited conduct. Burns's first letter, received January 19, contained two phrases which suggested Burns was a potential target: He described himself as a “very affectionate, clean gentleman” and asked that the woman write or call so “that we can talk and all become good close friends.” The latter statement carried the possible implication Burns intended to include the children.
Ackerman, using the name “Barbara Castro” (hereafter “Mother”), responded on January 30 with a letter to Burns. This response did not specifically refer to sex with children, but it contained the euphemisms that might evoke responses from pedophiles while being overlooked by others without an interest in the targeted conduct. For example, Mother wrote of looking for someone “not bound by society's rules” to help with her children's “special education,” and asked Burns about his ideas, desires and experiences. Ackerman explained that, while pedophiles would recognize and respond to this coded reference to sexual activity, a person without such an interest might respond to the “special education” phrase by asking if the children were retarded or had a physical infirmity. Mother's letter also described her relationship with her children as a “close family,” another oblique reference to possible sexual activity.
On February 5, Ackerman received Burns's response, which contained several key phrases leading Ackerman to believe Burns was interested in sex with children. Burns stated he was happy to hear they were a “close family,” and he understood her caution. He indicated he wanted them all to become close friends, and suggested he could help with their “special education” (underlining these two words for emphasis). He said he was an affectionate, sharing individual not bound by society's rules, and he had many sensual and loving ideas, hopes, experiences, dreams, fantasies and desires. He then asked for the children's ages and sex, asked how they were involved with “special education” and what they thought of it. He stated: “I do believe that we are looking for the same thing.” He asked if Mother would prefer to use the telephone “so their [sic] is nothing in writing.”
Mother responded to Burns's inquiries about the ages of the girls, and affirmed the children's deep interest in their “special education.” 4 Mother also asked Burns a series of questions about his experience and what he had in mind for the special education.
Burns's next letter, received February 14, referenced his intent to protect the children, and described what he had in mind for their special education: exploring sexual nudity, love and hidden secrets; using adult videos, show-and-tell sessions, one-on-one group practice; exploring everything that feels good; and possibly playing adult games. Burns also stated, in apparent response to Mother's question about Burns's experience, that he had previously been involved with a 12–year–old girl named “Kathy.” Burns described Kathy as very sexual, and discussed how she liked watching adult videos, engaging in masturbation to orgasm, “playing doggy,” looking at nude photos, and joining her mother and Burns in threesomes whenever possible. Burns stated Kathy was willing and eager, could not wait to start, and always wanted more. Burns also asked Mother for “full” photos of Mother and the children, which Ackerman understood to be a request for sexually explicit photos, and indicated Burns hoped Mother would decide on him without delay so that the special education of the children could begin very soon.
Mother's response mirrored many of the ideas and experiences contained in Burns's preceding letter, identified her children as Patty (aged 12), Jeff (aged 10) and Liz (aged 7), and indicated she did not want to rush into anything. Mother also asked questions about what kind of photos Burns desired and about his experiences with “Kathy.”
Burns's response letter described in explicit detail his sexual actions with “Kathy,” and stated he wanted to help with the children's special education and wished Mother would send him nude photos of her children if possible. He also suggested they could rent some adult video tapes to show the children, and stated he would be happy to show Jeff the things men can do together. Burns also said he might buy a Polaroid or camcorder. He closed by restating he hoped Mother could decide on him very soon, and he wanted her to consider him a close, special friend, not just a letter writer.
Mother's response, mirroring Burns's description of his picture taking with “Kathy,” stated Patty was also a “ham,” and asked whether Burns would want to take pictures during the children's education. Mother also asked about Burns's prior experiences with other children. She “approved” of his buying a camcorder. She ended the letter by stating she was close to deciding.
Burns's next letter described his prior experiences with younger children. He assured Mother that he could answer Jeff's questions and show him many things, and that he would take pictures of the children during their special education depending on whether they and Mother wanted him to do so. He affirmed that he enjoyed such pictures, and that he was sexually excited at the prospect of obtaining some special pictures of the children. He also stated he could bring some adult videos with him to use during their education.
Mother responded to Burns's letter, asking for more details about Burns's experience with a young boy, and whether Burns thought Liz (the fictitious seven-year-old daughter) was too young for involvement in the special education he proposed. Mother also responded to Burns's request for pictures, stating she had numerous sexually explicit pictures and asking Burns which ones he wanted. Burns's response detailed the ways in which her letter sexually excited him and his sexual experiences with the young boy. He assured her Liz was not too young. Burns also said he was sexually excited by Mother's descriptions of the pictures of the children and hoped she would send him some pictures soon. He reiterated his intention to buy a Polaroid camera.
Mother's next letter mirrored many of Burns's comments about the children, but turned down his request for photos based on her rule against sending any pictures unless the recipient first sent pictures to her. In response, Burns expressed disappointment at being unable to get pictures and offered alternatives. He also expressed his hope that he would soon be able to show and teach Jeff in person.
After a brief hiatus, Mother wrote to Burns explaining why she would not send pictures and asking questions concerning his lesson plan for Patty. Burns responded that he wanted to give Patty “thousands of very deep kisses in all her special spots.” He described his “lesson plan” for Patty as involving baths, videos, and sexual conduct. He reiterated that Jeff's questions were better answered by showing and doing. Burns suggested Mother might also want a lesson.
Mother's response letter asked Burns what he planned to show Jeff, what movies he would use with Patty, and whether he had obtained the Polaroid. Mother also made clear that she was not personally interested in Burns and sought only to establish a special relationship between him and the children. She hoped he had not formed the “wrong idea” and asked how he felt about no personal involvement with her. Burns's response, received June 8, described in explicit detail the homosexual conduct he had in mind for Jeff and the sexual plan he had for Patty, reassuring Mother that he agreed the children's special education came first. He closed by again asking when they could meet to start the “special education.”
At this point the sting operation moved into its next phase: establishing telephonic contact with the suspect. On June 12, Mother (played by officer Janet Wright of the Child Abuse Unit of the San Diego Police Department) phoned Burns, mentioned his latest request for a personal meeting, and, after he reaffirmed his desire to meet the children personally, she asked him his thoughts on an appropriate date and place for the meeting. Burns checked his calendar and decided that his heavy work schedule meant he could not devote an entire weekend to the children until July 6. He told Mother he would fly to San Diego to meet her. Mother also asked Burns to outline his program, and he said he would start with Patty, proceed to the other children, and eventually have all three together. He said he would bring some movies to show the children, as well as a gift of sexy clothing for Patty and gifts for the others. Mother told Burns she would rent a motel room where she and Patty could meet with him, and that if things went well they could go back to her house where the other kids were waiting. Burns described his program for Patty's lesson, and asked whether Mother would be able to get Patty on birth control before they met.
In Burns's follow-up letter he provided the date and time his flight would arrive, and asked Mother to confirm the dates he planned to stay (July 6 through 10), his tickets being nonrefundable. He asked whether Mother could bring Patty to the motel, and mentioned he would bring the children some gifts, and perhaps some games or toys for their lessons. He signed off by stating he was sexually excited over the upcoming meeting.
Mother wrote back, confirming the dates were fine and stating she would get a motel room where she could meet and become acquainted with Burns, after which he could be with Patty. They could then go back to her house. Mother said the children asked what Burns would be teaching them.
In Burns's next letter he described his flight plans and his excitement at meeting Patty and Jeff. He also stated he had just acquired a new camera. He then described his plan for Patty (culminating in intercourse) and said he would show Jeff many things that two men can do together. Burns also said he was still thinking about Liz's special education.
In Mother's final letter she described her and her children's excitement at Burns's upcoming visit, discussed the proposed arrangements, and expressed her hope he had not paid too much for his new camera. Thereafter, Mother (played by Wright) and Burns communicated by phone. In their next conversation, after confirming Burns's travel plans and their meeting site, they again discussed the program for their upcoming meeting: Burns would start with Patty and, after returning to her home, proceed with the other children. Burns again mentioned the videos and “toys” he would be bringing. He also asked if Mother could bring some nude photos of the children, mentioned she could use his new camera to take pictures of their education, and asked her to try to get a video camera. Burns expressed his excitement at taking pictures. He also reassured Mother that he would bring some birth control materials for Patty, and suggested he and Patty could be alone at the motel before going to the home to have sex with the other children.
Officer Wright arranged for two adjoining motel rooms, one in which she could meet Burns and the other in which officers could wait and monitor the meeting between him and Mother. On July 6, Burns flew to San Diego. After collecting his luggage, he called Mother at the motel. He confirmed that Patty was with Mother, and obtained the number of the room where Mother would be waiting. He then took a taxi to the meeting place and went to the designated room.
Police videotaped the meeting between Burns and Mother. A copy of the tape and a transcription thereof were introduced at trial. Burns showed Mother the materials he brought with him: two Polaroid-type cameras, one of which was newly purchased, and film; various contraceptives and lubricants; three adult videos, one showing heterosexual conduct, one depicting male/male conduct for Jeff, and one involving female homosexual conduct; the “toys” (a vibrator kit with attachments); and a nightgown for Patty. Burns discussed how the cameras operated and his plan to show the adult videos to Patty and the children. Mother showed Burns some pictures of nude children, including ones which she represented were pictures of her own children. Burns examined and declared them to be good, rare pictures. Burns discussed the difficulty of obtaining good pictures, and said he had brought a Polaroid-type camera to avoid the danger of having the film developed. He said he could start giving lessons to Patty at the motel, and when Mother asked if she could watch he reiterated he had promised Patty private lessons. He said he and Patty would watch the adult video and perhaps experiment with the vibrator; it would be up to Patty to decide if she was ready for a man. Mother told Burns that Patty was waiting in the adjacent room. When they both began to go next door Burns stopped her, stating, “No, you wait here, give me 10 or 15 minutes for private lessons,” to which Mother replied, “Okay, you bet, you want private lessons, you got them.”
When Burns entered the room where Patty was supposedly waiting, he was arrested by officers. Burns subsequently signed consent forms for searches of his home and workplace, but no child pornography was seized. The defense rested without putting on evidence.
II. There Was Sufficient Evidence to Support Conviction on the “Attempt” Charges
Burns first attacks the sufficiency of the evidence to support the conviction of the two attempted child molestation counts and the attempted “employment” count. Specifically, Burns notes that two essential elements are required in order to be convicted of an “attempt”: (1) a specific intent to commit the crime; and (2) direct but ineffectual acts toward its commission. Burns then notes it is not a crime merely to fantasize about committing a crime, arguing that whatever acts he did were insufficient to show he progressed from merely thinking about the crime to actually commencing toward its commission. He also argues that because Patty and Jeff were always nonexistent victims, he could not have performed the “acts necessary to consummate the substantive offense” (Lupo v. Superior Court (1973) 34 Cal.App.3d 657, 663, 110 Cal.Rptr. 185), claiming he never consummated nor could have come close to consummating the crime. In short, Burns argues (1) his acts had not crossed from mere preparation into an immediate step toward consummation; and (2) impossibility of actual consummation precludes guilt of attempted consummation. We disagree.
A defendant is guilty of an attempt when he harbors a specific intent to commit the crime and does a direct but ineffectual act toward its commission. (People v. Ross (1988) 205 Cal.App.3d 1548, 1554, 253 Cal.Rptr. 178.) The act need not be an element of the substantive offense, but need only indicate a certain intent to commit the crime and constitute an immediate step in the present execution of the criminal design. (Ibid.) No bright line distinguishes when an act crosses into commencement of the criminal scheme, and the courts have recognized that the more clearly the intent to commit the offense is shown, the less proximate the acts need be to final consummation of the crime. (People v. Berger (1955) 131 Cal.App.2d 127, 130, 280 P.2d 136; People v. Fiegelman (1939) 33 Cal.App.2d 100, 105, 91 P.2d 156.)
Here, Burns's intent was clearly shown by his letters describing his goals to meet, have sex with and photograph the victims, and by his confirmatory conduct of acquiring and transporting the implements needed to carry out the offenses, one such implement being the camera with a timer. His acts were also sufficient to constitute an attempt: He arranged the meeting with Mother and Patty, flew to San Diego, took a taxi to the appointed site, met with Mother to finalize the schedule, and then left for the room where he expected his first victim, Patty, to be waiting. There is ample evidence that Burns had progressed well beyond merely thinking about the crimes and had taken steps toward executing his criminal plan.
The fact that Patty and Jeff were fictitious children provides no defense to Burns. While here completion of the crimes was indeed “impossible,” courts have held that a defendant is guilty of “attempt” if he harbors the requisite intent and commits the acts even though circumstances unknown to him render completion of the target crime factually impossible. (People v. Camodeca (1959) 52 Cal.2d 142, 147, 338 P.2d 903; People v. Siu (1954) 126 Cal.App.2d 41, 43–44, 271 P.2d 575.) The fictitious victims made consummation of the planned crimes “factually” impossible, but such impossibility does not prevent conviction on the attempted crimes. “ ‘If there is an apparent ability to commit the crime in the way attempted, the attempt is indictable, although, unknown to the person making the attempt, the crime cannot be committed ․ because of extrinsic facts, such as the nonexistence of some essential object․’ ” (People v. Siu, supra, 126 Cal.App.2d at p. 44, 271 P.2d 575, quoting 22 C.J.S. 142, § 77.) Thus, for example, a defendant can be convicted of attempted pandering in trying to convince women to become employees of a house of prostitution even though the house of prostitution may not exist and the women have no intention of accepting the offer. (People v. Charles (1963) 218 Cal.App.2d 812, 819, 32 Cal.Rptr. 653.) A person can be convicted of attempting to receive stolen property even though, unbeknownst to the defendant, the “bait” was never stolen. (People v. Meyers (1963) 213 Cal.App.2d 518, 520–523, 28 Cal.Rptr. 753.)
Here, the crime was impossible of consummation only because, unbeknownst to Burns, the victims were fictitious. This case appears to be like any other “sting” operation where the police participation makes consummation of the target crime factually impossible.5 It was not necessary for police, in order to obtain a conviction, to place a live 12–year–old child in harm's way to await Burns's further advances before he could be prosecuted for “attempt.”
III. The Trial Court Did Not Err in Giving Unmodified Entrapment Instructions
The trial court instructed the jury on the entrapment defense using the language taken from CALJIC Nos. 4.60, 4.61 and 4.61.5. Although Burns concedes such language is ordinarily correct, he nevertheless argues that using the unadulterated language was improper here, and that the trial court had a sua sponte obligation to modify those instructions to account for the peculiar proclivities of child molesters. Specifically, Burns points out that the instructions repeatedly refer to whether conduct of police was such as would likely induce “a normally law-abiding person” to commit the crime. Burns claims that no normal person would be tempted to commit a crime such as child molestation, and hence the language needed modification to allow the jury to evaluate whether police conduct would likely induce a person with Burns's proclivities to commit the crime. We reject Burns's argument.
First, the sua sponte instructional obligation does not extend to cases such as this. A trial court is obligated sua sponte to provide general principles of law that are closely and openly connected with the facts before the court and necessary for the jury's understanding of the case. (People v. Wickersham (1982) 32 Cal.3d 307, 323, 185 Cal.Rptr. 436, 650 P.2d 311.) The instructions here satisfied that obligation by adequately describing the general principles of the entrapment defense outlined by People v. Barraza (1979) 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947. Burns does not complain that the instructions were erroneous, only that they should have been modified to replace the “normally law-abiding person” language with “persons who are not ready to commit the offense,” in order to accommodate the fact that child molesters are not “normal” persons. However, where, as here, the instructions correctly state applicable principles of law, a defendant desiring further amplification must request such, and his failure to do so precludes him from complaining on appeal that the instructions were inadequate. (People v. Martinez (1978) 82 Cal.App.3d 1, 19, 147 Cal.Rptr. 208, disapproved on other grounds in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142; People v. Burrows (1968) 260 Cal.App.2d 228, 230, 67 Cal.Rptr. 28.)
In any event, the instructions as given were proper. In People v. Barraza, supra, 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947, our Supreme Court exhaustively evaluated the two approaches to entrapment law. It definitively adopted the “objective” test, which focuses on the conduct of police and the impact of such conduct on a “normally law-abiding person,” and rejected the so-called “subjective” test, which focuses on whether the defendant had a predisposition to commit the offense. (Id. at pp. 686–691, 153 Cal.Rptr. 459, 591 P.2d 947.) The language of which Burns complains—“normally law-abiding person”—is taken verbatim from Barraza, and indeed the entire set of instructions dealing with entrapment is a near-verbatim paraphrasing of the factors the Barraza court approved as relevant to the entrapment analysis. (Compare CALJIC Nos. 4.60, 4.61 and 4.61.5 with People v. Barraza, supra, 23 Cal.3d at pp. 689–691, 153 Cal.Rptr. 459, 591 P.2d 947.)
Burns attacks the language as inadequate, claiming the term “normally law-abiding person” is likely to be construed as referring to the “average person,” thereby robbing the entrapment defense of any significant application where an average person would never be tempted to commit an offense (such as child molestation) as would persons with a weakness toward such conduct. However, the language “normally law-abiding person” does not refer to the “average” person. It is fully applicable to a person who, although possessing abnormal tastes, is normally law-abiding. This court recently stated in an analogous context: “The instructions do not limit the entrapment defense to law-abiding persons. Rather, they focus the jury's attention on the officer's conduct in a hypothetical sense—its effect on a ‘normally law-abiding person.’ ․ Nowhere do any of the challenged instructions require or intimate a defendant who is not ‘normally law-abiding’ is not entitled to the entrapment defense.” (People v. Lee (1990) 219 Cal.App.3d 829, 838, 268 Cal.Rptr. 595.) The Lee court cataloged numerous other cases rejecting claims that the CALJIC instructions drawn from Barraza were deficient (ibid.), and we join that chorus.6
Finally, we note that an implicit aspect of Burns's argument is that where the criminal conduct is such as would only tempt persons with abnormal proclivities, the entrapment defense should be modified to account for such proclivities. Burns's argument effectively seeks to re-inject into entrapment law the subjective element which the objective test sought to excise—the predispositions of the targeted individual. Barraza specifically emphasized that the proper focus of entrapment law is the conduct of law enforcement officers, not the proclivities of the targeted individual:
“The success of an entrapment defense should not turn on differences among defendants; we are not concerned with who first conceived or who willingly, or reluctantly, acquiesced in a criminal project․ (People v. Barraza, supra, 23 Cal.3d at p. 688 [153 Cal.Rptr. 459, 591 P.2d 947].)
“Finally, while the inquiry must focus primarily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand․ We reiterate, however, that under this test such matters as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant.” (Id. at pp. 690–691 [153 Cal.Rptr. 459, 591 P.2d 947].)
In sum, Burns did not request a modification of the standard instructions, and even had he done so, it appears the court's instructions were adequate and correct. There was no error.
The judgment is affirmed; the petition for writ of habeas corpus is denied.
FN2. All statutory references are to the Penal Code unless otherwise specified.. FN2. All statutory references are to the Penal Code unless otherwise specified.
3. The magazine allegedly appealed to, among other people, those with an interest in child pornography and child molestation. The coded ad allowed correspondents to keep their addresses private.
4. Ackerman explained that, in responding to letters from potential targets, he used a technique called “off-center mirroring.” This technique takes the target suspect's ideas, alters them enough to disguise the fact the ideas are the same as those expressed by the target, and then returns them to the target. The goal of this technique is to make the fictitious mother appear to have the same set of values as those projected by the suspect, and hence make it appear she shares interests in common with the suspect.
5. We recognize that some courts have occasionally held factual impossibility of completion precludes conviction of an “attempt.” (See, e.g., People v. Jaffe (1906) 185 N.Y. 497, 78 N.E. 169.) However, California does not adhere to the Jaffe approach, and has specifically held that impossibility does not excuse criminal conduct. (See, e.g., People v. Rojas (1961) 55 Cal.2d 252, 256–258, 10 Cal.Rptr. 465, 358 P.2d 921 [where perpetrator commits acts toward crime and is only prevented from consummating the crime because police intervention makes it impossible to do so, conduct is punishable as an attempt because consequences to the perpetrator “should be more serious than pleased amazement” that the crime was impossible].) The Model Penal Code likewise eliminates impossibility as a defense to attempt. (See Model Pen.Code, § 5.01, subd. (1) [criminal culpability for attempt exists where conduct would have resulted in a crime had facts been as the perpetrator believed them to be].) Even New York, from which Jaffe emanated, has legislatively eliminated impossibility as a defense to attempt. (See People v. Leichtweis (1977) 59 A.D.2d 383, 399 N.Y.S.2d 439 [revision to New York Penal Code, based on approach used by Model Penal Code, eliminated “impossibility” as a defense to attempt].)
6. Burns claims the CALJIC language should be changed to the language contained in Model Penal Code section 2.13, subd. (1)(b), which adopts the objective test but uses the language of inducing “persons who are not ready to commit the offense,” because that is what Barraza actually meant to adopt. Burns points out that the Barraza court, in adopting the objective standard, cited with approval a dissenting opinion in People v. Moran (1970) 1 Cal.3d 755, 83 Cal.Rptr. 411, 463 P.2d 763 which argued in favor of the Model Penal Code language. (See People v. Barraza, supra, 23 Cal.3d at p. 689, fn. 3, 153 Cal.Rptr. 459, 591 P.2d 947, citing Chief Justice Traynor's dissent in People v. Moran, supra, 1 Cal.3d at p. 765, 83 Cal.Rptr. 411, 463 P.2d 763.) Burns then concludes it is likely that Barraza intended to adopt the Model Penal Code approach, but that its adoption of the “normally law-abiding person” standard was “nothing more than an accident or mistake.”First, we doubt that adoption of the “normally law-abiding person” standard was merely an accident or mistake, because the Barraza court was cognizant of all three alternative formulations of the objective standard (People v. Barraza, supra, at p. 689, 153 Cal.Rptr. 459, 591 P.2d 947) and chose to adopt the “normally law-abiding person” standard. Even were it a mistake, however, “the language in the instruction is drawn directly from Barraza. ․ To the extent that this language is not consistent with an objective test of entrapment, defendants' remedy is to seek review in the higher court. No other court has the power to change the high court's definition of entrapment.” (People v. Kelley (1984) 158 Cal.App.3d 1085, 1097, 205 Cal.Rptr. 283.)
FOOTNOTE. See footnote 1, ante.
FROEHLICH, Associate Justice.
KREMER, P.J., and BENKE, J., concur.