People v. Rudd CA3, C090782

Background

Undercover sting: nonprofit OUR created a fictitious 13-year-old persona (“Timmy”) and conducted online sting operations; Timmy (an undercover) responded to a Craigslist ad.
Defendant Derek Rudd posted the Craigslist ad seeking a “young” compact/submissive male; he exchanged sexually explicit e-mails with the undercover in which he acknowledged Timmy was 13 and asked for the address; he went to a sting house and was arrested.
Charges and disposition: jury convicted Rudd of attempted lewd/lascivious acts on a child and contacting a minor with intent to commit a sexual offense; court suspended sentence and placed him on probation with 364 days jail.
Pretrial and trial disputes: Rudd moved to dismiss for discriminatory prosecution (alleging DA Amanda Hopper targeted him because he is gay); the prosecution sought to exclude portions of the arrest video showing Hopper’s reaction; hearsay testimony from Rudd’s father was struck; Rudd requested a homosexuality-focused voir dire questionnaire which the court denied.
Trial court rulings: motion to dismiss denied; portion of arrest video excluded under Evid. Code § 352; hearsay lines struck (but similar testimony later admitted); questionnaire denied though live voir dire on homosexuality was allowed. Appellate court affirmed.

Issues

Issue	People (Respondent) Argument	Rudd (Defendant) Argument	Held
Motion to dismiss for discriminatory prosecution	No evidence DA deliberately singled out Rudd; investigators didn’t know Rudd’s identity until arrest; sting targeted various offenders and statistics show most prosecutions were for males seeking underage females	Hopper knew Rudd from church, used Facebook friend requests and gay-themed cues to target him; Hopper celebrated arrest and edited video to hide bias	Denial affirmed: defendant failed to prove discriminatory purpose or effect; no nexus showing selective prosecution based on sexual orientation
Exclusion of portion of arrest video (Hopper’s reaction)	Exclude under Evid. Code § 352 as irrelevant and unduly prejudicial	Video shows Hopper’s gloating, relevant to credibility and entrapment; exclusion impaired defense	No abuse of discretion: reaction not relevant to central issues (identity, intent, entrapment); no prejudicial error shown
Striking hearsay lines from Larry (father)	Proper hearsay objection to statements about defendant’s phone call	Testimony showed defendant’s state of mind and intent to counsel the youth; exclusion impaired entrapment defense	Any error harmless: similar testimony was later put before jury and overwhelming evidence of guilt makes reversal unlikely
Denial of voir dire questionnaire probing views on homosexuality	Trial court has broad discretion; live voir dire permitted and defense could ask questions about homosexuality	Questionnaire necessary to detect hidden anti-gay bias that jurors might not admit in open court; denial prejudiced jury selection	No abuse of discretion or prejudice: counsel conducted probing live voir dire on homosexuality; no showing of miscarriage of justice

Key Cases Cited

United States v. Armstrong, 517 U.S. 456 (1996) (presumption of prosecutorial regularity; burden to show discriminatory prosecution)
Baluyut v. Superior Court, 12 Cal.4th 826 (1996) (standards for discriminatory prosecution dismissal)
Manduley v. Superior Court, 27 Cal.4th 537 (2002) (invidious purpose defined as arbitrary and unjustified)
Murgia v. Municipal Court, 15 Cal.3d 286 (1975) (equal protection prohibits purposeful selective prosecution)
People v. Lucas, 12 Cal.4th 415 (1995) (prosecutorial charging discretion and constitutional constraints)
People v. Landry, 2 Cal.5th 52 (2016) (trial court’s broad discretion in voir dire procedures)
People v. Linton, 56 Cal.4th 1146 (2013) (standard of review for Evid. Code § 352 exclusions)
People v. Callahan, 74 Cal.App.4th 356 (1999) (harmless error standard for excluded evidence)
People v. Fudge, 7 Cal.4th 1075 (1994) (harmless error analysis for evidentiary rulings)