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Name: People v. Yuksel
Case #: B231571
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 07/11/2012
Summary

Despite references to both child and minor, Penal Code section 288.4 (arranging a meeting with minor for lewd and lascivious behavior) applies to any child under the age of 18 years. Appellant, having exchanged sexual messages with a police decoy portrayed as a minor, and then arranging a meeting, was charged with a violation of Penal Code section 288.4. At trial, he unsuccessfully objected to the court’s jury instruction defining a “child” as any person under the age of 18 years. Affirmed. The Legislative history for section 288.4 reveals that its provisions were drawn from Penal Code section 647.6, which prohibits a person with an abnormal sexual interest in children from annoying or bothering any child under the age of 18. With reference to this history, it is clear that the two words in section 288.4, child and minor, refer to the same thing; i.e., a child under the age of 18.

An expert’s reliance on hearsay in formulating his opinion does not necessarily make the hearsay admissible. The trial court permitted a defense expert to testify to his opinion that appellant was not a pedophile but excluded appellant’s statements to the expert that he had no prior behavior of such a nature. The appellate court found that the trial court did not abuse its discretion under Evidence Code section 352 to exclude the evidence because the trial court deemed it to be unreliable under the circumstances.