Garelick

Defendant Brian Garelick was charged by information with an attempted lewd or lascivious act on a child under 14 (Pen. Code, §§ 664, 288, subd. (a)), attempted distribution or exhibition of harmful matter to a minor (§§ 664, 288.2, subd. (b)), and misdemeanor possession of child pornography (§311.11, subd. (a)). After a jury trial, Garelick was found guilty on all counts. The trial court suspended imposition of sentence, placed Garelick on three years’ probation and ordered him to serve 365 days in county jail on the charge of attempted lewd or lascivious act, a consecutive 101 days on the charge of attempted distribution or exhibition of harmful matter, and a concurrent sentence of six months in county jail on the charge of misdemeanor possession of child pornography, with credit for time served.

On appeal, Garelick contends that the trial court committed instructional error and challenges the constitutionality of section 288.2, subdivision (b) (hereafter section 288.2(b)). We reject these arguments and shall affirm.

I. Factual and Procedural Background

A. Presentation of the evidence

On May 13, 2005, Milpitas Police Sergeant Daryl Sequeria was posing as a…