The opinion
Filed 1/19/21 P. v. Butte CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, A157561
Plaintiff and Respondent,
(Contra Costa County
v. Super. Ct. No. 05-172131-5)
WILLIAM FELIX BUTTE, JR.,
Defendant and Appellant.
William Felix Butte appeals from an order of probation after a jury
convicted him of meeting a minor for lewd purposes (Pen. Code, § 288.4,
subd. (b); count one), attempting a lewd act upon a child (id., §§ 664, 288,
subd. (c)(1); count two), and sending harmful matter to a minor (id., § 288.2,
subd. (a)(1); count three). Butte argues the judgment must be reversed due to
purported prosecutorial misconduct and the trial court’s exclusion of expert
testimony. We affirm.
BACKGROUND
A.
In August 2017, Darryl Holcombe, a Senior Inspector with the Contra
Costa County District Attorney’s Office, was investigating personal ads
posted on Craigslist. Holcombe discovered an ad, posted by “DaddyW69,”
entitled “Princess, where are you?” The text of the ad asked, “Are you tired of
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boys your age and curious to have a man who makes all the decisions[?]” It
also said, “I am looking for a naughty little girl who likes to be a Princess”
and “[a]ge doesn’t matter.” The ad implored, “[b]e serious about meeting up,
I’m not into endless messages.” The ad also included a cartoon depicting a
woman having sex with a man she called “Daddy.”
Pretending to be a 15-year-old girl named “Lizzy,” Inspector Holcombe
responded to the ad, using a messaging application known as KIK. Shortly
after their conversation began, “DaddyW69”, who was later determined to be
Butte, identified himself as a 48-year-old man. When Lizzy told Butte that
she was 15 years old, Butte replied, “OMG, [love] it.”
Inspector Holcombe sent Butte two photos from a female colleague, who
was 14 years old when the photos were taken. Lizzy gave additional
indications that she was a teenager, such as telling Butte that she was in
math class at school. Lizzy also told Butte that she liked to play soccer and
babysit, and she sent Butte a picture of a school locker. Butte also asked
Lizzy whether she had ever had sex, to which she said “[n]o.” He then asked
when she started masturbating. Throughout the conversation, Lizzy used
abbreviations such as “idk” and “lol.” Undeterred, Butte asked Lizzy if she
was a police officer (Lizzy responded simply, “A what?”), said he hoped they
could meet in person, and asked if she could meet after school.
Butte asked Lizzy several graphically sexual questions, such as
whether she would like “Daddy to lick and finger [her] hot little pussy[?]” He
also asked about Lizzy’s experience with pornography and instructed her on
how to view “daddy-daughter” pornography without her mother seeing it in
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her online browsing history. Butte instructed Lizzy to “look at it alone and
play with [her] sweet pussy like a good naughty girl.”
After Lizzy said she usually went to a Starbucks in a nearby mall after
school, Butte suggested that they meet there that afternoon and promised to
buy her a Starbucks drink. When Lizzy explained she did not have a car or a
ride, Butte assured her, “I have both.” To ease Lizzy’s qualms about being
seen, Butte said, “Well we can bump into each other and I can get two drinks
and then you just grab it like you ordered it.”
Butte told Lizzy he would teach her how to orally copulate him and
asked if she wanted “Daddy to slide [his] think [sic] cock in [her] tight
pussy[?]” When Lizzy asked if they would need protection, Butte said he had
had a vasectomy and would be “gentle.” Immediately thereafter, they agreed
to meet at the Starbucks at 1:30 p.m., and Lizzy asked Butte to buy her a
“carmel [sic] frap[.]”
When police officers arrived at the Starbucks at the agreed time, Butte
was sitting on a bench outside. Inside the Starbucks, Holcombe found two
“carmel [sic] frap” drinks waiting at the counter. When Butte was arrested,
officers seized his phone and downloaded his KIK chat with Lizzy. Despite
the existence of plenty of open parking spaces near the Starbucks, Butte’s car
was parked some distance away, on the upper floor of the parking lot.
Butte admitted to Inspector Holcombe that he posted the Craigslist ad,
asked all the sexual questions reflected in the downloaded messages, and told
Lizzy that he wanted to send her links to pornographic videos. Butte was
asked, “So what made you want to have sex with a 15-year-old girl?” He
responded, “[C]uriosity. Just stupidity.” Butte also said, “I was just curious
if it really existed.” When Inspector Holcombe asked for clarification, Butte
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said he was curious about whether “[t]hese teenagers . . . actually meet and
stuff like that.”
B.
At trial, Butte testified that he did not intend to contact any minors
when he posted his ad, but instead was interested in “role-play or chatting
online” with women pretending to be “little girls.” He did not believe Lizzy
was in fact 15 years old because she would not send him a “live photo” or “live
chat” with him. Butte had previously met with people after being introduced
online. In one instance, the person claimed to be a woman but was in fact a
man. On another occasion, a person portrayed herself as “a little girl” but
was a 25-year-old woman. Butte also said he had no intention of having sex
with Lizzy. He asked Lizzy graphic questions only to determine her identity
and not for sexual gratification.
C.
The jury convicted Butte of meeting a minor for lewd purposes,
attempting a lewd act upon a child, and sending harmful material to a minor.
At sentencing, the trial court placed Butte on probation for five years, on
condition that he serve one year in county jail, complete sex offender
treatment, and register as a sex offender (Pen. Code, § 290).
DISCUSSION
A.
Butte argues the prosecutor committed misconduct during opening
statement that deprived him of a fair trial. We disagree.
1.
The United States Constitution is violated when a prosecutor’s conduct
is so egregious that it infects the trial with such unfairness as to make the
resulting conviction a denial of due process. (People v. Flores (2020) 9 Cal.5th
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371, 403.) A prosecutor’s lesser misconduct will violate state law “ ‘ “if it
involves the use of deceptive or reprehensible methods to persuade the . . .
jury.” ’ ” (Ibid.) We review the trial court’s determinations on prosecutorial
misconduct for abuse of discretion. (People v. Bennett (2009) 45 Cal.4th 577,
595.) We will not reverse a judgment for prosecutorial misconduct in an
opening statement “ ‘unless the misconduct was prejudicial or the conduct of
the prosecutor so egregious as to deny the defendant a fair trial.’ ” (People v.
Wrest (1992) 3 Cal.4th 1088, 1109.)
2.
During opening statement, the prosecutor told the jury, “The defense
[is] trying to say that [Butte] thought that he was talking to an adult. But
the evidence in this case . . . will prove to you beyond a reasonable doubt that
the defendant was going there to meet with a 15 year old girl. . . . [¶] In the
body of evidence that you’re going to receive, a few things will be established
beyond all possible doubt. The first of which is . . . the defendant . . . is a
pedophile.” Defense counsel objected that the statement was argumentative
but did not request an admonition. The trial court sustained the objection.
Later that day, defense counsel made an oral motion for mistrial,
arguing the prosecutor’s “pedophile” comment was incurable misconduct
because the prosecutor knew it lacked evidentiary support. Defense counsel
also argued the term (pedophile) refers to someone who is sexually attracted
to prepubescent children, typically under the age of 13. The prosecutor
opposed defense counsel’s motion, asserting “[a] pedophile is someone who
has a sexual attraction to children. I believe the evidence demonstrates that
incredibly clearly.”
The trial court denied Butte’s motion, explaining that the prosecutor’s
use of the term “pedophile” in opening statement would not deny Butte a fair
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trial because the trial court instructed the jury that statements of counsel
were not evidence.
3.
Butte has not shown prejudicial misconduct.
When a misconduct claim arises from the prosecutor’s comments before
the jury, the initial question “ ‘ “is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.” ’ ” (People v. Adams (2014) 60 Cal.4th 541, 568.)
There are multiple reasonable understandings of the word “pedophile.” (See
Johnson v. Department of Justice (2015) 60 Cal.4th 871, 883 [noting that
pedophiles “by definition” target prepubescent minors]; Merriam-Webster
Dict. Online (2020) <https://www.merriam-
webster.com/dictionary/pedophilia#medicalDictionary> [as of Jan. 19, 2021]
[defining pedophilia as “sexual perversion in which children are the preferred
sexual object”].)
Here, the prosecutor’s opening statement made clear this case involved
a law enforcement officer posing as a 15-year-old girl; there was no mention
of prepubescent children. We find it unlikely that the jury understood the
word “pedophile,” in this context, to mean Butte was sexually attracted to
prepubescent minors. (See People v. Dykes (2009) 46 Cal.4th 731, 772 [“ ‘we
“do not lightly infer” that the jury drew the most damaging rather than the
least damaging meaning from the prosecutor’s statements’ ”].)
Butte admitted, on cross-examination, that he was aroused by a
graphic of a grown man having sex with his daughter. He also posted an ad
seeking a “naughty little girl” and sent graphically sexual texts, along with
explicit invitations to engage in sexual activity, to someone he believed was a
15-year-old girl. Given this record, we cannot agree with Butte that the
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prosecutor’s use of the word “pedophile” was wholly unsupported. We
conclude there was no misconduct.
In any event, the trial court repeatedly instructed the jurors that the
attorneys’ statements were not evidence and that the jury should decide the
case based on the evidence. Given this cautionary instruction and the
prosecution’s strong case against him, there is no reasonable probability that
any fleeting impropriety in the opening statement prejudiced Butte. (People
v. Flores, supra, 9 Cal.5th at p. 405; People v. Bennett, supra, 45 Cal.4th at p.
595 [“When a trial court sustains defense objections and admonishes the jury
to disregard the comments, we assume the jury followed the admonition and
that prejudice was therefore avoided”].)
B.
Butte also contends the trial court abused its discretion in excluding,
under People v. Kelly (1976) 17 Cal.3d 24 (Kelly), the opinion testimony of his
online communications expert. We find no abuse of discretion. (See Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,
773 [standard of review]; People v. Richardson (2008) 43 Cal.4th 959, 1008
[same].)
1.
In order to be admissible, expert testimony must “relate to a subject
sufficiently beyond common experience as to assist the trier of fact and be
based on matter that is reasonably relied upon by an expert in forming an
opinion on the subject to which his or her testimony relates.” (People v.
Olguin (1994) 31 Cal.App.4th 1355, 1371; accord, Evid. Code, § 801.)1
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Undesignated statutory references are to the Evidence Code.
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“When admission of expert testimony relating the use of novel scientific
methods or techniques is at issue, the proponent of the evidence must
demonstrate the technique’s reliability through testimony from an expert
qualified to opine on the subject. The technique’s reliability, in turn, depends
on a showing that it has achieved general acceptance among practitioners in
the relevant field. Finally, the proponent of the evidence must show any
procedures necessary to ensure the technique’s validity were properly
followed in the given case. [Citation.] The purpose of these threshold
requirements—commonly referred to as the Kelly test—is to protect against
the risk of credulous juries attributing to evidence cloaked in scientific
terminology an aura of infallibility.” (People v. Peterson (2020) 10 Cal.5th
409, 444.) General acceptance means “a consensus drawn from a typical
cross-section of the relevant, qualified scientific community.” (People v.
Leahy (1994) 8 Cal.4th 587, 612.)
2.
In support of Butte’s theory that he had no intent to engage in lewd
acts with a 15-year-old, the defense offered the testimony of Professor Jeffrey
Hancock. Defense counsel proposed that Hancock was an expert in “online
communications.”
Before trial, the prosecution moved to exclude Hancock’s proposed
opinion testimony on the grounds, among others, that it was speculative, the
jury was equally qualified to evaluate the communications between Lizzy and
Butte, and that the defense could not establish the foundational
requirements under Kelly.
The trial court held a section 402 hearing. Hancock testified he would
opine that a reasonable person would suspect “Lizzy” was not 15 years old.
Hancock would not opine that a reasonable person would think Lizzy was
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over 18 years old. Defense counsel also indicated Hancock would opine that
there was insufficient evidence Butte “groomed” Lizzy and that their text
conversation, via KIK, was atypical for a “sting operation.”
Hancock’s opinions were based on “dozens of articles that have
examined how people communicate online and the kinds of beliefs people hold
when they are attracted to another person online.” Hancock had published
two articles on the subject, based on his review of over 500 transcripts of
online communications between pedophiles and victims that resulted in
criminal convictions. Hancock’s opinion was also based on a computer-
automated analysis of language used, which he said could indicate the age or
gender of a person. In addition to the language used by the purported minor,
in this particular case Hancock relied on other “characteristics” of the
exchange, such as a comparison of Lizzy’s indicated school hours to the
dismissal time of schools in the area; the fact that schools in the area forbid
cell phone use at school; Lizzy’s use of some terms that were atypical for a 15-
year-old girl; and Butte’s repeated requests for live photos.
After reading two of Hancock’s published articles, which are not
included in the appellate record, the trial court excluded Hancock’s
testimony, agreeing with the People that Kelly’s scientific reliability
requirements were unsatisfied. The trial court also ruled that Hancock’s
proffered opinion that a reasonable person texting with Lizzy would not
believe Lizzy was 15 years old—which Hancock arrived at on the basis of
Lizzy’s school schedule, the district policy regarding use of cell phones at
school, and her use of phrases like “kicking it”—was not the proper subject of
expert testimony.
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3.
Butte does not challenge the trial court’s application of Kelly to this
case or argue that Hancock’s opinion regarding Lizzy’s age would assist the
jury (§ 801, subd. (a)). He merely contends the trial court abdicated its
gatekeeping role because defense counsel had no opportunity to present
evidence to show the reliability of Hancock’s technique. Butte is wrong.
Here, the record clearly shows that a section 402 hearing was held to
give Butte an opportunity to demonstrate the reliability of Hancock’s
technique. (See People v. Peterson, supra, 10 Cal.5th at p. 444; Kelly, supra,
17 Cal.3d at p. 30, italics omitted [“reliability of the method must be
established, usually by expert testimony”].) At that hearing, the trial court
asked Hancock if he could cite a case or other authority showing general
acceptance in the community, but Hancock could not. The trial court also
reviewed Hancock’s published articles and stated that, in his 2014 article,
Hancock conceded his technique was new and not scientifically validated.
The court further indicated that Hancock’s 2017 article did not claim that his
technique had then been scientifically accepted.
By failing to provide us with these articles, Butte has not met his
burden on appeal to demonstrate the trial court abused its discretion in
concluding the evidence was inadmissible. (See People v. Whalen (2013) 56
Cal.4th 1, 85 [appellant’s failure to provide an adequate record requires
resolution against appellant]; Denham v. Superior Court (1970) 2 Cal.3d 557,
564 [judgment challenged on appeal is presumed to be correct and appellant
bears burden to affirmatively demonstrate error].)
The record before us supports the trial court’s conclusion that Butte
failed to meet his burden below to show Hancock’s techniques were reliable.
(See People v. McWhorter (2009) 47 Cal.4th 318, 365, 367 [no abuse of
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discretion in excluding opinion testimony when Kelly foundational
requirements not met because expert failed to identify computer software
used to enhance images and failed to satisfactorily explain process]; People v.
Dellinger (1984) 163 Cal.App.3d 284, 293 [expert’s opinion testimony
erroneously admitted after expert testified she did not know of prior
experiments using same technique and “there was no corroborative testimony
that this technique was accepted within the scientific community”].)
DISPOSITION
The judgment is affirmed.
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_______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
NEEDHAM, J.
A157561
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