THE PEOPLE, Plaintiff and Respondent, v. DEREK JAMES RUDD, Defendant and Appellant.
C090782 (Super. Ct. No. CRF-160001340)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
Filed 6/2/21
NOT TO BE PUBLISHED.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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On appeal, defendant contends the trial court erred in denying his motion to dismiss the charges based on discriminatory prosecution, excluding evidence, and denying his request to use a questionnaire during voir dire. We reject these contentions and affirm the judgment.
FACTUAL BACKGROUND
The Sting Operation
Operation Underground Railroad (OUR) is a nonprofit organization that works with law enforcement agencies throughout the world to “rescue kids from sex trafficking.” Among other things, OUR provides training in undercover sting operations and funding to facilitate those operations, including paying for undercover sting houses.
In 2016, the vice president of OUR, David Stallings, assisted the Sutter County District Attorney’s Office (district attorney) in conducting undercover sting operations aimed at catching individuals seeking to sexually exploit minors. As part of those operations, Stallings helped create e-mail accounts and Internet profile pages (e.g., Facebook profile pages) for fictitious “undercover personas.” Stallings and investigators with the district attorney posted online advertisements using the undercover personas on various websites, including Craigslist. The undercover persona used in this case was a fictitious 13-year-old boy named Timmy Johnson (Timmy). Timmy’s fake profile included an age-regressed photograph of an adult male that was made to look like a 13-year-old boy.
During undercover sting operations in early June 2016, Stallings saw an advertisement in the casual encounters section on Craigslist that caught his attention. The advertisement stated that a 38-year-old bisexual male, later identified as defendant, was
Stallings, playing the role of Timmy, responded to defendant’s Craigslist advertisement at 1:13 p.m. on June 7, 2016.3 He wrote, “[L]uv your ad . . . specially the pics. im probly 2 young but wanted to give props 4 the ad.” Thereafter, defendant and Timmy exchanged a series of e-mails over the course of the following 10 or so hours. The e-mail exchange, which was attached to defendant’s Craigslist advertisement, was admitted into evidence and provided to the jury.
As relevant to defendant’s claims, several hours after Timmy responded to defendant’s Craigslist advertisement, defendant replied, “[W]ho says too young? I like young. [¶] Picture? u’d be pleasantly surprised!” When Timmy responded, he informed defendant that he was 13 years old and “pretty sure” he was “attracted to guys and gay but [was] trying to figure everything out.” Timmy said that his father was not supportive but was never around, and that he would send a “normal” picture because he had sent pictures in the past and “got in trouble.” Defendant answered that he knew what statutory rape was, and assured Timmy that he would not molest him. Defendant also said that he is a “very good/nice guy,” and that people in Timmy’s situation “could use more friends.” Timmy sent defendant the age-regressed photograph and noted that it would not be rape if he was “ok wit it.”
Shortly thereafter, Timmy responded. He said that his father was at work and that he would be home alone until 6:00 a.m. He also said that he thought he knew what he liked but was “afraid of things hurting and bleeding.” Several minutes later, Timmy wrote another e-mail stating, “How do I know this won’t hurt me too bad? I’m kinda nervous.” In response, defendant assured Timmy that he would not “do that kind of thing to [him]” and indicated that they should talk through things first. He also said, “Send me . . . ur address, and we can meet outside for a moment and discuss things. If it’s cool with u, I have a very nice house, and after we meet, if u give the go ahead, I think we both will feel most comfortable hanging out in my serene backyard or can go inside and Netflix and chill. [¶] Ur call, but let’s get the hardest part out of the way. . . Address and digits? [¶] I’ll be driving a new White Lincoln MKC . . . .”
A few minutes later, defendant sent another e-mail that stated, “Babe, I just replied . . . use ur heart and I would NEVER want anything like that. It’s my job to catapult u thru the toughest times, u think are hell, and uplift u, give u hope, and make sure u don’t
Around 15 minutes later, at 10:19 p.m., defendant wrote, “OK, so long as YOU put it out there, I can’t get arrested. Of course I’m not looking to talk. I like young, because I like to teach, and the more fresh, Virgin ass the better. I won’t hurt u ‘cause I have a tongue that should be patented, and u should know for the future what a real rim job is intended, and should be renamed a Make-out ram job, cause the swirls [o]f my tongue will relax and loosen u, to the point u could never bleed, and be wondering all night between tongue and cock which I will def mix it up, and have u quivering, arching, pillows biting, and sweating until u[] won’t know what the word until means. . . . [¶] I’m an exponentially gifted Top, who hasn’t forgotten the art of foreplay! [¶] OK. Put it [o]n the line, now it’s up to u to pull the trigger and experience what few only wish they could. I’ll teach you how to teach others. [¶] So address plz, and I’ll will be right over to pick you up . . . and ensure ur on ur doorstep by 5:30 a.m., tucked in bed, so no one is the wiser. [¶] Boom! [¶] Drop the address and let’s stop the back and forth!”
Around 10 minutes later, Timmy responded, “I’m IN! If ur really that good u better hurry up and get here! We only have 7 hours.” Timmy then provided defendant with the address of the sting house. Defendant immediately replied, “Lol. On my way. :)”
When defendant knocked on the door of the sting house approximately 30 minutes later,4 an investigator with the district attorney, Jason Parker, answered the door and
At trial, Stallings testified that he was not aware of defendant’s identity prior to his arrest. Parker also testified that he did not learn defendant’s identity until after he was arrested. When asked, Parker said that he was not monitoring Stallings’s communications with defendant on the night of the sting operation and could not recall being made aware that defendant had given Stallings his phone number. Stallings testified that he did not attempt to identify the person he was communicating with by using the phone number he was given, and that he did not provide the phone number to anyone involved in the sting operation prior to defendant’s arrest. When deputy district attorney Clinton Curry testified, he said that he was present during the sting operation and learned of defendant’s identity for the first time after defendant was arrested.5
Defendant’s Interview
During his interview with Parker at the sting house, which was played for the jury, defendant admitted that his sexually related communications with Timmy, a boy he
Defendant’s Testimony
Defendant testified on his own behalf at trial. He explained that he was raised as a Mormon in a very religious household. He struggled with his sexual orientation when he was young and did not reveal he was gay until he was 24 years old. His parents “didn’t take it well.”
When asked, defendant admitted that he posted the Craigslist advertisement at issue in this case, and that he was not bisexual as the advertisement stated. He also admitted he was the person who exchanged a series of e-mails with Timmy on June 7, 2016, including e-mails that were sexual in nature. However, he insisted that he just wanted to talk with Timmy and was concerned that if he were unable to do so, Timmy was going to have sex with someone else. Defendant explained that the sexually explicit e-mail he sent to Timmy at 10:19 p.m. was his last “Hail Mary” attempt to obtain Timmy’s address so he could help Timmy. Defendant claimed that he did not intend to have any sexual relations with Timmy. Defendant also explained that he called his father, Larry Rudd (Larry), after he sent the sexually explicit e-mail to Timmy.6
Upon further questioning, defendant acknowledged that he believed Timmy was 13 years old but reiterated that he did not intend on having sexual relations with Timmy; rather, he just wanted to talk to Timmy because he was worried about Timmy’s safety and wanted to help him. Defendant claimed that he “forgot” who he was communicating with and “took it too far” when he wrote the sexually explicit e-mail describing the sexual acts he would perform on Timmy (e.g., anal sex). He later claimed that he “panicked” and wrote this e-mail because he thought Timmy would find another person to have sex with if he only wanted to talk to Timmy. Defendant admitted that it was inappropriate to subsequently tell Timmy that Timmy was going to “take it,” meaning anal sex.
DISCUSSION
I
Motion to Dismiss
Defendant contends the trial court erred in denying his motion to dismiss the charges based on discriminatory prosecution. He argues that dismissal was warranted because District Attorney Amanda Hopper unlawfully targeted him based on his sexual orientation. We conclude the trial court properly denied defendant’s motion to dismiss.
A. Additional Background
Defendant filed a pretrial motion to dismiss the charges based on discriminatory prosecution. He argued that such relief was warranted because he was singled out for
As support for his position, defendant primarily relied on a declaration submitted by Parker, the former lead investigator for the district attorney. Defendant asserted that Hopper, who knew defendant because she attended the same church as his parents, instructed Parker in April 2016 to send a friend request to defendant through Facebook using Timmy’s fictitious Facebook profile. According to defendant, after Hopper instructed Parker to send the friend request, she made remarks about defendant’s sexual orientation. Hopper also laughed and joked about how “gay” defendant is. She described defendant’s “flamboyant” behavior to Parker. Defendant further asserted that, after he denied Timmy’s Facebook friend request, the prosecution sent another friend request to him using an updated Facebook profile of Timmy, which included a photograph of a rainbow flag, a well-known symbol of gay pride. The prosecution also had Timmy “friend” 10 of defendant’s friends on Facebook to create the illusion that he and Timmy shared mutual friends and thus knew each other. Thereafter, defendant accepted Timmy’s friend request but did not communicate with Timmy through Facebook.7
According to defendant, following Hopper’s failed attempts to communicate with him through Facebook using Timmy’s fake profile, she then sought to “aggressively pursue [him] as a suspect” by communicating with him through his advertisement on Craigslist,8 even though the advertisement stated he was looking for a “ ‘young guy,’ ” not a “ ‘child,’ ‘boy,’ or ‘13-year-old.’ ” Finally, defendant asserted that Hopper, who was present at the sting house, was “jumping up and down in joy” when he was arrested, and
Defendant argued that these circumstances “provide an easy mechanism for identifying discriminatory purpose and discriminatory effect” for purposes of discriminatory prosecution. Defendant insisted that the facts he identified “clearly” demonstrated that “Hopper is prejudiced against homosexuality,” that she “orchestrated a sting operation with a malicious intent to entrap homosexual individuals,” and that he, as a gay man, “was pursued significantly more aggressively than the heterosexual suspects in the sting operation . . . despite no objective indication he was pursuing underage boys.”
The prosecution opposed the motion, arguing that defendant failed to carry his burden to show discriminatory prosecution. To show that defendant was not deliberately singled out for prosecution based on his sexual orientation, the prosecution submitted declarations from four individuals who were present at the sting house on the night of defendant’s arrest (e.g., Hopper, Curry), all of whom averred that they had no knowledge of defendant’s identity as the person communicating with Stallings (i.e., “Timmy”) until defendant arrived at the sting house. The prosecution also pointed to a portion of Parker’s preliminary hearing testimony wherein he testified that he did not know defendant was the person communicating with Timmy until defendant arrived at the sting house. In addition, the prosecution submitted evidence to show that the sting operations
As relevant here, the evidence submitted by the prosecution also showed that Curry and Hopper were acquaintances of defendant prior to his arrest, and that Curry instructed Parker to edit the video recording of defendant’s arrest so that it only showed the arrest portion at the front door. In Curry’s declaration, he explained that he did so because he determined that Hopper’s reaction to defendant’s arrival at the sting house was not relevant to defendant’s guilt or innocence.
At the hearing on defendant’s motion to dismiss, the prosecutor acknowledged that the recording showed that Hopper was excited when defendant arrived at the sting house, but argued the reaction was irrelevant to whether the charges should be dismissed for discriminatory prosecution because there was no evidence that Hopper directed Parker to target defendant based on his sexual orientation. In response, the court asked the prosecutor to clarify that: “the charges in this case stem from a Craigslist ad that the defendant posted and that even though there had been a prior Facebook friend request initiated by the District Attorney’s office, there had not been communication between defendant and Timmy . . . prior to the Craigslist ad that was posted by defendant.” The
The trial court found that there was no evidence showing a discriminatory purpose, noting that the evidence submitted did not establish a link between the Craigslist advertisement and the Facebook friend request. The court further found that there was no evidence of a discriminatory effect, noting that the sting operation statistics “show more heterosexual behavior was prosecuted, . . . men seeking underage females,” than “homosexual behavior, men seeking underage . . . boys.”
The court directed the parties to jointly review the unedited version of the recording of defendant’s arrest and the transcript of the recording. The parties complied with the court’s directive and indicated that they had no objection to the court reviewing the recording. The prosecutor stated, and defense counsel did not disagree, that the transcript “fairly reflects what can be heard and understood on the video.” The court
In denying defendant’s motion, the trial court concluded that there was no evidence showing a discriminatory effect from the sting operation. The court further concluded that there was no evidence showing that defendant had been deliberately singled out for prosecution based on his sexual orientation.
B. Applicable Legal Principles
“In the ordinary case, ‘so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file . . . , generally rests entirely in his [or her] discretion.’ ” (United States v. Armstrong (1996) 517 U.S. 456, 464 (Armstrong); People v. Lucas (1995) 12 Cal.4th 415, 477.) “As a result, ‘[t]he presumption of regularity supports’ their prosecutorial decisions and, ‘in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’ ” (Armstrong, supra, 517 U.S. at p. 464.) However, the People’s discretion to prosecute and what to charge is “ ‘subject to constitutional constraints’ ” including “the equal protection component of the Due Process clause of the Fifth Amendment.” (Ibid.)
In order to establish a claim of discriminatory prosecution, “ ‘the defendant must prove: (1) “that he has been deliberately singled out for prosecution on the basis of some invidious criterion”; and (2) that “the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities.” ’ ” (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 832 (Baluyut).) “ ‘[A]n invidious purpose for prosecution is one that is arbitrary and thus unjustified because it bears no rational relationship to legitimate law enforcement interests . . . .’ ” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 568-569.)
“Although referred to for convenience as a ‘defense,’ a defendant’s claim of discriminatory prosecution goes not to the nature of the charged offense, but to a defect
“Unequal treatment which results simply from laxity of enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute does not deny equal protection and is not constitutionally prohibited discriminatory enforcement. [Citations.] However, the unlawful administration by state officers of a state statute that is fair on its face, which results in unequal application to persons who are entitled to be treated alike, denies equal protection if it is the product of intentional or purposeful discrimination.” (Baluyut, supra, 12 Cal.4th at p. 832.)
“[A]n equal protection violation does not arise whenever officials ‘prosecute one and not [another] for the same act’ [citation]; instead, the equal protection guarantee simply prohibits prosecuting officials from purposefully and intentionally singling out individuals for disparate treatment on an invidiously discriminatory basis.” (Murgia v. Municipal Court for Bakersfield Judicial Dist. (1975) 15 Cal.3d 286, 297.)
C. Analysis
We conclude the trial court properly denied defendant’s motion to dismiss. The record does not reflect that defendant was subjected to a discriminatory prosecution. The evidence submitted in connection with defendant’s motion does not show that he was deliberately singled out for prosecution based on his sexual orientation, or that the
Because we have addressed the merits of defendant’s claim, we need not and do not address the People’s forfeiture argument.
II
Video Recording of Defendant’s Arrest
Defendant contends the trial court abused its discretion in excluding a portion of the video recording capturing his arrest. According to defendant, the ruling deprived him from arguing that a witness (Hopper) engaged in conduct that reflected on her believability. We reject this claim.
A. Additional Background
The prosecution filed a pretrial motion to exclude a portion of the video recording capturing defendant’s arrest. The prosecutor stated that he only intended to introduce the
During a pretrial discussion regarding the defense of entrapment, the prosecutor argued that the comments made by Hopper after defendant’s arrest should be excluded under Evidence Code section 352 because they were not relevant to entrapment or any other issue in the case, and, as a result, the evidence “could only . . . inflame the passions of the jury, inflame their prejudices . . . .” The trial court granted the prosecution’s request to exclude this evidence. In so ruling, the court found that the comments made by Hopper were not relevant to the defense of entrapment, and that any marginal relevance the evidence had to other issues in the case was outweighed by the prejudicial effect of the evidence within the meaning of Evidence Code section 352.
Prior to closing arguments, the trial court instructed the jury on the defense of entrapment pursuant to CALCRIM. No. 3408.11 In closing argument, defense counsel
B. Applicable Legal Principles
Evidence Code section 352 permits the trial court, in its discretion, to exclude relevant evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review a trial court’s decision to exclude evidence under Evidence Code section 352 for abuse of discretion. (People v. Linton (2013) 56 Cal.4th 1146, 1181.) We reverse for improper exclusion of evidence only if the error has resulted in a miscarriage of justice. In other words, we reverse only if it is reasonably probable that the appellant would have obtained a more favorable result in the absence of the error. (People v. Callahan (1999) 74 Cal.App.4th 356, 363.)
officers to discover that the crime had been committed. [¶] When deciding whether the defendant was entrapped, consider what a normally law-abiding person would have done in this situation. Do not consider the defendant’s particular intentions or character, or whether the defendant had a predisposition to commit the crime. [¶] If the defendant has proved that it is more likely than not that he attempted to commit [the charged crimes] because he was entrapped, you must find him not guilty of [the charged crimes].”
We conclude defendant has failed to show an abuse of discretion or prejudice. The central issues at trial were whether defendant was the person communicating with Timmy with regard to the Craigslist advertisement, whether defendant intended to engage in sexual relations with Timmy when he arrived at the sting house, and whether defendant was entrapped by law enforcement. Hopper’s reaction to defendant’s arrest at the sting house was not relevant to any of these issues. Stallings (playing the role of Timmy), not Hopper, was the person communicating with defendant about the Craigslist advertisement. There was no evidence that Hopper or anyone else involved in the sting operation knew that defendant was the person communicating with Timmy prior to defendant’s arrival at the sting house. As we have described, all evidence was to the contrary. Defendant has made no attempt to explain how Hopper’s “gloating” over his arrest was relevant evidence that was erroneously excluded. Moreover, he has made no attempt to show that the trial court’s exclusion of evidence was prejudicial, i.e., it is reasonably probable that he would have obtained a more favorable result in the absence of the asserted error. On this record, we see no basis for reversal.
Because we have addressed the merits of defendant’s claim, we need not and do not address the People’s forfeiture argument.
III
Larry’s Trial Testimony
Defendant contends the trial court erred by sustaining a hearsay objection and striking certain testimony Larry gave about defendant’s state of mind prior to his arrival at the sting house. We conclude any error was harmless.
A. Additional Background
The relevant exchange between defense counsel and Larry was as follows:
“Q. All right. Now, I want to direct your attention to June 7 of 2016. Okay?
“A. Yes.
“A. Yes.
“Q. Do you remember approximately what time that conversation occurred?
“A. My wife and I were getting ready for bed. I think it was around 10 o’clock.
“Q. All right. Can you tell us what the nature of that conversation was?
“A. Derek seemed to be upset, and he was talking to a kid on Facebook. He said that the kid was having some problems, that he thought he was gay, but he also said he couldn’t talk to his father because of apparently their relationship.”
“[Prosecutor]: Objection. Hearsay.
“The Court: Sustained.
“[Prosecutor]: Move to strike.
“The Court: Stricken.”
Immediately after this exchange occurred, defense counsel asked Larry if defendant had expressed concern about the “child’s” (i.e., Timmy’s) relationship with his father. Thereafter, Larry testified that defendant sounded upset during the phone call and was concerned because Timmy was unable to tell his father that he is gay. Larry further testified that defendant was afraid that Timmy might “do something” and get hurt or something might happen to Timmy, and that defendant wanted to go talk to Timmy to try and “counsel” him. On cross-examination, the prosecutor asked Larry if defendant told him what Timmy was planning on doing. Larry responded as follows: “[Defendant] said that [Timmy] was questioning whether he was gay and that he may be . . . making a decision where he could be . . . injured and [defendant] was trying to help him . . .”
B. Analysis
On this record, any evidentiary error was harmless. Even assuming the trial court erred in sustaining the hearsay objection and striking the few lines of challenged testimony, the same evidence was subsequently placed before the jury by Larry. Given
IV
Voir Dire
Defendant contends the trial court erred in denying his request to use a questionnaire during voir dire containing questions designed to probe the prospective jurors’ views regarding homosexuality. According to defendant, “[h]ad the jury been thoroughly questioned with the . . . voir dire [questionnaire], a different result is likely to have occurred.” We find no abuse of discretion or prejudice.
A. Additional Background
Defendant filed a pretrial motion asking the trial court to use a questionnaire during voir dire containing questions about homosexuality. He argued that a questionnaire was necessary to determine if prospective jurors were biased or prejudiced against homosexuals.
At the hearing on this matter, the trial court initially expressed its general dislike of questionnaires, and that it preferred to ask potential jurors questions in open court where their demeanor could be observed. Thereafter, defense counsel argued that a questionnaire was necessary because there are people with “very strong religious” opinions about homosexuality and it is important to find out whether any prospective jurors have those viewpoints and whether it would impact their ability to be fair and impartial. In making this argument, counsel suggested that prospective jurors might not disclose such viewpoints in open court.
Following the trial court’s initial examination, the parties questioned the prospective jurors at length. During this process, defense counsel was permitted to ask questions about homosexuality, including whether prospective jurors had any moral or religious beliefs that homosexuality is wrong.
B. Applicable Legal Principles
“ ‘There is no constitutional right to voir dire per se. Nor is there any constitutional right to conduct voir dire in a particular manner. [Citation.] Rather, the voir dire process serves as a means of implementing the defendant’s Sixth Amendment right to an impartial jury. [Citations.] [¶] Consistent with applicable statutory law, the trial court has wide latitude to decide the questions to be asked on voir dire [citation], and to select the format in which such questioning occurs [citation]. The court likewise has broad discretion to contain voir dire within reasonable limits.’ ” (People v. Landry (2016) 2 Cal.5th 52, 83.)
“To select a fair and impartial jury in a criminal jury trial, the trial judge shall conduct an initial examination of prospective jurors. At the first practical opportunity prior to voir dire, the trial judge shall consider the form and subject matter of voir dire questions. Before voir dire by the trial judge, the parties may submit questions to the trial judge. The trial judge may include additional questions requested by the parties as the trial judge deems proper.” (
“The trial judge’s exercise of discretion in the manner in which voir dire is conducted, including any limitation on the time that will be allowed for direct questioning of prospective jurors by counsel and any determination that a question is not in aid of the exercise of challenges for cause, is not cause for a conviction to be reversed, unless the exercise of that discretion results in a miscarriage of justice, as specified in Section 13 of Article VI of the California Constitution.” (
C. Analysis
We conclude defendant has shown neither abuse of discretion nor prejudice. Although the trial court denied defendant’s request to provide prospective jurors with a questionnaire containing questions probing their beliefs about homosexuality, defense counsel was permitted to ask questions on this topic during the voir dire process without limitation. Defendant has made no attempt to demonstrate that the way the trial court conducted voir dire resulted in a miscarriage of justice.
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Mauro, Acting P. J.
/s/
Krause, J.