Opinion
Fatih Yuksel appeals from his conviction for arranging to meet with a minor for sexual purposes. We affirm.
FACTS AND PROCEEDINGS
Torrance Police Department Detective Dennis Brady was working in a unit targeting sexual assaults and Internet crimes against children. Using a decoy Internet profile named “Taylorgurl” that he had created to lure online predators, Detective Brady logged into an Internet chat room in November 2009. Appellant Fatih Yuksel, who had also logged into the chat room, began exchanging online instant messages with Detective Brady. Identifying himself as “Taylorgurl,” Detective Brady told appellant that he was a 14-year-old girl from Torrance. At appellant’s request, Detective Brady sent online photographs to appellant of a young-looking decoy female police officer purporting to be “Taylorgurl.” Over several chat sessions during the next few days, appellant turned the content of the instant messages between “Taylorgurl” and himself to sexual matters. Four days after their first online exchange, appellant arranged to meet with “Taylorgurl” at a fast-food restaurant in Torrance. When appellant arrived as scheduled at the restaurant, police arrested him.
The People charged appellant with the crime of meeting a person whom appellant believed to be a minor for the purpose of engaging in sexual
DISCUSSION
Defendant contends the trial court committed two errors that warrant reversal. First, the court improperly defined the word “child” in its jury instruction on the elements of the crime. Second, the trial court unduly restricted the scope of the defense expert’s testimony. We find neither point persuasive.
1. Jury Instruction That a “Child” Is Anyone Under 18 Years Old
The People charged appellant with violating section 288.4, subdivision (b).
Appellant correctly notes that in general the meaning of the words “minor” and “child” overlap, but are not exactly the same. California defines a “minor” as a person not of the age of majority, which is 18 years old. (Fam. Code, § 6500.) The definition of “child” is less precise. Webster’s dictionary, for example, defines a child as “a young person especially] between infancy and youth.” (Merriam-Webster's Collegiate Dict. (10th ed. 1995) p. 198.) Recognizing the difference between a minor and a child, the United States military permits a 17 year old to enlist with a parent’s permission, permission required by the enlistee’s being a minor even though one would not call a 17-year-old enlistee a child. (10 U.S.C. § 505, subd. (a).) And, cultural practices often
Appellant contends section 288.4’s use of two different words—children and minor—matters because it advances important societal interests. The statute’s requirement that an abnormal or unusual sexual interest in children motivates the offending adult draws the law’s particular sanction, and law enforcement’s special attention, to pedophiles, who are adults sexually attracted to prepubescent children. The statute’s focus on sexual interest in children carves out, appellant contends, a subcategory smaller than all minors because of the horrific harm pedophiles inflict when they prey on sexually immature younger minors. By defining children, as the court instructed here, as anyone under 18 years old, the court abolished the difference between children and minors, making the two groups exactly the same. In doing so, appellant contends, the court erroneously removed from the jury’s consideration the factual question of whether appellant’s sexual interest in the minor “Taylorgurl,” who purported to be 14 years old, was motivated by an interest in children as section 288.4 requires.
Ordinarily, we must interpret different words in a statute to mean different things. (Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co. (2005)
We do not envision the Legislature meant different things when it used the words “children” and “minor.” (Mejia v. Reed (2003)
2. Defense Expert Testimony
A clinical and forensic psychologist specializing in sexual offenses testified as a defense expert. Before testifying, the psychologist interviewed appellant, administered psychological tests, and reviewed appellant’s police file. The psychologist testified he saw no evidence that appellant was a pedophile, which is an adult with an abnormal and persistent sexual interest in prepubescent children. The psychologist conceded that appellant’s interest in “Taylorgurl” was sexual, but the psychologist opined that appellant’s interest in her was not an unnatural or abnormal interest in children because a 14 year old (“Taylorgurl’s” purported age) is not a prepubescent child.
Defense counsel asked the psychologist to explain the reasons for his opinions. The psychologist’s answer drew the prosecutor’s objection as follows: “[Defense counsel]: In terms of, based on your totality of the database and information you received, does or did [appellant] appear at the time of your evaluation to have an unnatural or abnormal interest—sexual interest in children and/or show pedophilia? [¶] A. No, I don’t believe so. I do not see evidence of pedophilia in this case, [¶] Q. What is the basis of your opinion? [¶] A. The very important consideration is that this is a single
Appellant contends the court erred in excluding evidence that he had no previous attempts at sexual contact with a minor before meeting “Taylorgurl.” He reasons that because Evidence Code section 1108 allows evidence of prior sexual misconduct to prove propensity to commit a sexual offense, the reverse should apply: Evidence of no prior sexual misconduct is admissible to prove no propensity to commit a sexual offense. (People v. Callahan (1999)
Appellant contends the court’s exclusion of his hearsay evidence that he had no previous attempts at sexual contact with a minor before “Taylorgurl” interfered with his right to present his defense. We disagree. An expert may rely on otherwise inadmissible hearsay evidence provided the evidence is reliable and of the type that experts in the field reasonably rely upon in forming their opinions. (Evid. Code, § 801; People v. Hill (2011)
Here, the court permitted the psychologist to testify why he believed appellant was not a pedophile. The psychologist told the jury that pedophilia was a “persistent and abnormal sexual interest in children.” The psychologist explained that a “single incident” of sexual contact with a minor does not qualify as pedophilia. He testified he concluded appellant was not a pedophile after his “comprehensive evaluation” of appellant, including interviewing him, administering two psychological tests, reviewing the police report, and reading the transcript of appellant’s and “Taylorgurl’s” chat room instant messages. In light of the expert’s admitted testimony, the court’s rulings sustaining the prosecutor’s objections appear to have barred only appellant’s hearsay statements to the psychologist that appellant’s offense against “Taylorgurl” was an isolated incident, statements which we infer the court deemed to be unreliable under the circumstances. (See People v. Bell (2007)
In any case, even if the court erred, appellant does not show the error requires reversal. Appellant’s discussion of harmless error principles is conclusory. He merely recites the federal and state tests for error and asserts they apply here. Appellant’s conclusory discussion waives the point on appeal, which provides an alternative basis for affirming the trial court’s ruling. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999)
The judgment is affirmed.
Bigelow, P. J., and Flier, J., concurred.
Notes
Section 288.4, subdivision (b) applies to: “Every person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor for the purpose of exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in lewd or lascivious behavior . . . .” (Pen. Code, § 288.4, subds. (a)(1) & (b).)
All further undesignated section references are to the Penal Code.