PEOPLE v. KEISTER

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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE, Plaintiff and Appellant, v. Thomas Edwin KEISTER, Defendant and Respondent.

No. E016140.

Decided: June 27, 1996

Dennis L. Stout, District Attorney, and Robert J. Lemkau, Deputy District Attorney, for Plaintiff and Appellant. Peter A. Estern, San Jose, under appointment by the Court of Appeal, for Defendant and Respondent.

 An information charged defendant with two counts of attempted lewd acts upon two fictitious or imaginary children in violation of Penal Code sections 664 and 288, subdivision (a).1  The information also alleged that defendant had received two prior felony convictions within the meaning of section 667, subdivisions (b) through (i).   The superior court granted defendant's section 995 motion to dismiss the information.   The People appeal this ruling.2

FACTS

In November 1993, Detective Jack Trotter of the San Bernardino County Sheriff's Office conducted a sting operation in which he placed an advertisement in a periodical called “New Friends and Swingers.”   The advertisement stated a single mother was looking for a “liberal” adult male.   Trotter received hundreds of responses to this ad, including one from defendant on January 20, 1994.   Trotter corresponded with defendant, pretending to be a divorced woman named Heather who had three children, a 9–year–old female, an 11–year–old female and a 12–year–old male.   Heather told defendant the two female children were named Rita and Rachel, and those were the names of “victims” which were alleged in the information.

In the correspondence between Trotter and defendant, Heather told defendant she was looking for someone to help her with her children's “special education.”   Between January and April 1994, numerous letters were exchanged and defendant eventually expressed a desire to commit sex acts with the two girls.   Defendant indicated the first lesson would involve touching of the girls' nude bodies and oral copulation.   He indicated he would place the girls' bodies on top of him to allow him to control penetration.

In telephone conversations held on April 14 and 21, 1994, Detective Carolyn Felts played the part of Heather.   Defendant explained that at the first lesson he would go slowly because he was not a small man and that foreplay was a must.   He explained that anal penetration would begin about the 15th lesson.   Heather set up a meeting with defendant at a hotel where defendant was supposed to meet Heather and the imaginary female children.

On April 22, 1994, defendant met Heather (Felts) at a hotel room.   Heather asked defendant if he was ready to give the girls sexual lessons and asked how he intended to proceed.   Defendant responded by describing specific activity which would have constituted child molestation.   Heather told defendant the girls were waiting in the next room for him.   When defendant entered the room, he was arrested by police officers.   There were never any children in the hotel room during this event.

DISCUSSION

I.Section 995 Motion

 The People contend that the court erred in setting aside the information.  “In an appeal from an order of the superior court granting a Penal Code section 995 motion, we disregard the ruling of the superior court and directly review the determination of the magistrate holding the defendant to answer.  [Citation.]   The factfinding power, including that of determining credibility of witnesses, rests with the magistrate.  [Citation.]”  (People v. Molina (1994) 25 Cal.App.4th 1038, 1041, 30 Cal.Rptr.2d 805.)   An information will be set aside only if there is a total absence of evidence to support a necessary element of the offense charged.   The elements may be supported by circumstantial evidence and reasonable inferences from that evidence.  (People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226, 6 Cal.Rptr.2d 242.)

 An attempt to commit a crime is shown by a specific intent to commit that crime and a direct but ineffectual act toward that crime's commission.  (People v. Dillon (1983) 34 Cal.3d 441, 452, 194 Cal.Rptr. 390, 668 P.2d 697.)  “ ‘Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt,’ but the acts will be sufficient when they ‘clearly 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․’ ”  (Ibid.) However, where the intent to commit the offense is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown.  (People v. Staples (1970) 6 Cal.App.3d 61, 68, 85 Cal.Rptr. 589.)

 In the present case, defendant's intent was clearly expressed when he stated to Heather that he was going to teach the girls about sex.   His first lesson would include touching the girls' nude bodies and oral copulation.   His intent was clear from his letters, telephone conversations and conversation at the motel.   Given his clear intent, defendant's entry into the room which allegedly contained the girls was sufficient.

In People v. Berger (1955) 131 Cal.App.2d 127, 280 P.2d 136, the court held, where the defendant's intent to perform an abortion was clear, his act of sterilizing surgical instruments was sufficient to constitute an attempt to perform an abortion.  (Id., at pp. 131–132, 280 P.2d 136.)   The court held this act was a first step toward the commission of the intended crime.

In the present case, defendant performed the first act necessary for commission of his clearly expressed intent.   He entered a room which he thought contained the minors.   Defendant had just explained to Heather that, after meeting the girls, he intended to “lick the girls on their vaginas in positions A thru Z.” Defendant also stated he would place the girls “on top of him” because “he was not a small man and that this first time it would be painful for the girls.”   Defendant was shown photographs of prepubescent girls and was told they were photographs of Rachel and Rita, the intended victims.   Defendant stated he was ready to meet the girls.

“Public safety would be needlessly jeopardized if the police were required to refrain from interceding until absolutely certain in each case that the criminal would go through with his plan.   The law of attempts eliminates precisely that burden once the subject has plainly demonstrated, by his actions, his intent presently to commit the crime.”  (People v. Dillon, supra, 34 Cal.3d at p. 454, 194 Cal.Rptr. 390, 668 P.2d 697.)

 Further, it does not matter that the consummation of defendant's intent was factually impossible.  (People v. Siu (1954) 126 Cal.App.2d 41, 44, 271 P.2d 575.)  “One of the purposes of the criminal law is to protect society from those who intend to injure it.   When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.   Although the law does not impose punishment for guilty intent alone, it does impose punishment when guilty intent is coupled with action that would result in a crime but for the intervention of some fact or circumstance unknown to the defendant.  [Citations.]”  (People v. Camodeca (1959) 52 Cal.2d 142, 147, 338 P.2d 903.)   An attempt depends on the intent and act of the defendant, not on the effect and result of his intended act.   (People v. Rojas (1961) 55 Cal.2d 252, 256–258, 10 Cal.Rptr. 465, 358 P.2d 921.)

 Defendant contends that he did not and could not perform the acts of attempted child molestation.   Because there were no victims, he asserts it is impossible for the court to make the necessary finding concerning the age of the victims.   However, there is no requirement in an attempt conviction that the elements of the substantive offense be proved.  (People v. Dillon, supra, 34 Cal.3d at p. 454, 194 Cal.Rptr. 390, 668 P.2d 697.)

 “Our task is to determine whether the magistrate, acting as a person of ordinary prudence, could conscientiously entertain a reasonable suspicion that the defendant committed the crime charged.  [Citation.]   To that end, we draw every legitimate inference supported by the competent evidence and refrain from substituting our judgment for that of the magistrate.”  (People v. Alonzo (1993) 13 Cal.App.4th 535, 538, 16 Cal.Rptr.2d 656, emphasis added.)   Because there was evidence to support the charged offenses, the magistrate could entertain a reasonable suspicion that defendant committed the crimes charged.   The superior court erred in granting the motion to set aside the information.

DISPOSITION

The order granting the motion to set aside the information is reversed.

FOOTNOTES

1.   All further references to code sections will be to the Penal Code.

2.   Appellate defense counsel informed this court in a supplemental letter brief filed March 20, 1996, that defendant died during the pendency of this appeal.   Because this case poses an issue of broad public interest that is likely to recur, we resolve that issue even though defendant's death would normally render this case moot.   The issue not addressed in this opinion is deemed moot.  (People v. McCoy (1992) 9 Cal.App.4th 1578, 1581, fn. 3, 12 Cal.Rptr.2d 476.)

RAMIREZ, Presiding Justice.

RICHLI and McDANIEL*, JJ., concur.

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