NOT TO BE PUBLISHED IN OFFICIAL REPORTS
On February 2, 2009, Jean-Pierre Wiltse Wehry was convicted by a jury of two counts of attempted lewd acts on a child under 14 (counts 1 and 2, Pen. Code, §§ 664/288, subd. (a))
On appeal, Wehry contends the evidence was insufficient to support his convictions on count 2 (attempted lewd act on a child under 14) and count 3 (attempted sodomy of a person under 18.)
In December 2005 and January 2006, the Riverside County Sheriff's Department and the organization named "Perverted Justice" launched an Internet sting operation targeting adult sexual predators of minors. Adult members of Perverted Justice, called "profilers," posed as 13-year-old males and females. One profiler posed as a 13-year-old male named Luke. Profiler Luke posted faux biographical information on a predominantly gay website.
On December 30, 2005, Wehry started a week-long e-mail conversation with the profiler Luke that consisted of more than 75 pages of explicit messages written by Wehry. Throughout the e-mail exchanges Wehry wrote statements including, "By the way why wouldn't I wanna . . . make love to you?"; "I also want to be your man . . . lover"; "I wanna have sex"; "I would love to s____ you and swallow and everything else as well as cuddle"; "I will be there for you from the moment you put your hand in mine to your be and toung [sic] kiss me as your lover."
After Wehry wrote statements such as "I wanna meet," "you also must tell me how to get to your bed," and "I wanna see and taste your beautiful body . . . make love to you," Profiler Luke gave Wehry the address of "his house" (the sting house) so Wehry could meet him. On January 6, 2006, at 11:20 p.m., Wehry arrived at the sting house inside which he was confronted by NBC News Correspondent Chris Hansen. Wehry told Hansen that he was looking for construction work and did not know a boy named Luke and never communicated with him on the Internet. Wehry was arrested shortly thereafter by Riverside Police. At the time of his arrest, Wehry had on his person a floppy disk containing a photograph of teenage boys.
THE SUFFICIENCY OF EVIDENCE GENERALLY
"`In reviewing a challenge to the sufficiency of the evidence . . ., we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.] `The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.'" (People v. Ramirez (2006) 39 Cal.4th 398, 464.) Reversal is not warranted "unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility." (People v. Martinez (2003) 113 Cal.App.4th 400, 412.)
Wehry does not contest that there is sufficient evidence to convict him of one count of attempted lewd act on a child (count 1). However, he contends there is insufficient evidence of his intent to commit more than one attempted lewd act on a child and his conviction on count 2 therefore violates due process under the Fifth Amendment of the U.S. Constitution. He argues that his "numerous sexually explicit [e-mails] were an attempt to arouse himself and the decoy and to get them to meet. Once [Wehry] entered the sting house, it was not clear and `without any equivocality' exactly what particular sex acts they would be doing. [Citation.] It was clear, however, that [Wehry] intended to molest the decoy, which was sufficient for one count of molestation." Wehry argues that other than one act of molestation, any further acts that may have transpired at the sting house are all conjecture.
The People rely on People v. Superior Court (Decker) (2007) 41 Cal.4th 1 to support its position that one ineffectual act supports an attempt to commit two crimes and therefore there is sufficient evidence to support Wehry's convictions of both counts 1 and 2. In Decker, the defendant hired a hitman to kill his sister and her acquaintance. (Id. at pp. 5-6.) The hitman was an undercover sheriff's deputy. (Ibid.) The defendant made statements to the deputy that manifested his intention to have the two individuals killed, such as "shoot her in the heart and head both, just to make sure," and that he was "100 percent sure" that he wanted to go through with the murders. (Id. at p. 7.) The California Supreme Court found that there was enough evidence to support the existence of "a direct but ineffectual act toward accomplishing the intended killings. For an attempt, the overt act must go beyond mere preparation and show that the killer is putting his or her plan into action." (Id at p. 8.) Slight acts in furtherance of committing a crime are sufficient for attempt. (Ibid.)
Similar to Decker, Wehry is charged with multiple counts of attempted crimes based on one ineffectual act: two counts of section 288, subdivision (a). Section 21a defines "attempt" as consisting of two elements: "a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." Section 288, subdivision (a), provides:
To sustain a conviction of attempted violation of section 288, subdivision (a), the prosecution has the burden of demonstrating (1) the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age. (See People v. Memro (1985) 38 Cal.3d 658, 698, overruled on other grounds by People v. Gains (2009) 46 Cal.4th 172, 181.) The requisite intent for section 288, subdivision (a), may be proven by circumstantial evidence. (People v. Levesque (1995) 35 Cal.App.4th 530, 543.)
Here, to satisfy the two elements of attempt, the evidence of Wehry's e-mails shows he specifically intended to go to the sting house to molest Luke, and he made an unequivocal but ineffectual step toward committing a lewd and lascivious act with a child under the age of 14 by going to the sting house. His intent was made evident through his e-mail statements such as "I luv [sic] you Luke and I want to sleep with you and you in me I want to wake to you in the morn;" and "[i]s it safe for me to sleep with you at night?" These e-mail statements, in which Wehry expressed his intent to commit a lewd and lascivious sexual act with 13-year-old Luke, also satisfy section 288, subdivision (a). Therefore, the pages of lewd e-mails written by Wehry over a week-long period to Profiler Luke also satisfies the requisite lewd intent requirement under section 288, subdivision (a).
However, we do not find Wehry's going to the sting house with the intent to molest a minor gives rise to two counts of an attempt to violate section 288, subdivision (a), rather than one count. Both counts 1 and 2 stemmed from the same intent of committing a lewd act on a child under 14. The intent was made evident from Wehry's e-mails and the direct but ineffectual act occurred when Wehry went to the sting house; however, he only made one stop at the house. It is true that Wehry had manifested his intention through multiple e-mails, but his intent was still the same—to go to the sting house on January 6, 2006, and commit a lewd and lascivious act with a child under the age of 14. Unlike Decker, in which the evidence showed an intent to attempt to murder two people, here the evidence shows only an intent to molest Luke with no differentiation between or among acts that violate section 288, subdivision (a); there was only one intended victim. In this case, counts 1 and 2 are duplicative and we conclude the evidence is insufficient to support a conviction of more than one section 288, subdivision (a), offense.
Wehry also argues the evidence is insufficient to support his conviction on count 3, attempted sodomy of a person under 18. Section 286, subdivision (b)(1), provides:
To sustain a conviction of an attempted violation of section 286, subdivision (b)(1), the prosecution has the burden of demonstrating (1) the defendant intended to commit sodomy with a person under 18 years of age, and (2) the defendant took a direct but ineffectual step toward committing sodomy of a person under 18 years of age. (See People v. Memro, supra, 38 Cal.3d at p. 698.)
The evidence shows Wehry met the requisite requirements for attempted sodomy. This charge arose from the portion of Wehry's e-mail in which he wrote: "[w]ould you like me inside you or you inside me or both?" Wehry also wrote, "I want to sleep with you and you in me," which expresses his intent to commit sodomy with a person under 18, a crime separate and distinct from the section 288, subdivision (a), molestation crime. Wehry had the intent to commit the crime, and, by arriving at the sting house at a little before midnight, he took the direct but ineffectual step toward committing sodomy with a person under 18 years of age.
When the situation is one "`without any equivocality'" that the design will be carried out if not interrupted, the defendant's conduct satisfies the test for an overt act. (People v. Superior Court (Decker), supra, 41 Cal.4th at p. 13.) In contrast to the allegations of attempted lewd conduct in counts 1 and 2, the allegation of attempted sodomy is an allegation of a separate and distinct crime, and therefore the separate crimes are supported by separate intents and may be affirmed based on the one ineffectual act of going to the sting house. Wehry's actions and e-mail statements show his intent to commit both sodomy and lewd and lascivious acts—two separate crimes. We conclude there was substantial evidence to support his conviction on count 3.
ABSTRACT OF JUDGMENT
The reporter's transcript reflects that Wehry was sentenced to consecutive terms of 25 years to life. However, the entries made by the court clerk in the minute order and on the abstract of judgment reflect concurrent terms. We direct the court to prepare an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation.
The judgment of conviction on count 2 is reversed. The judgment is otherwise affirmed. The matter is remanded to the trial court for resentencing. The trial court is directed to issue an amended abstract of judgment to reflect the resentencing and consecutive rather than concurrent terms and to forward a copy to the Department of Corrections and Rehabilitation.
NARES, Acting P. J.