People v. Hicks, G052778

Background

In 2013–2014 defendant Daryl Hicks (age 57) met several minor runaways from Orangewood (Angelica 17, Jazmin 16, Marlene 16, Bree 17), furnished drugs, paid for sex, and took naked photographs of some victims. Police found drugs, firearms, and a memory card with explicit images.
Indictment: 3 counts human trafficking of a minor (Pen. Code § 236.1(c)), 4 counts unlawful sexual intercourse with a minor >3 years younger (§ 261.5(c)), 3 counts furnishing a controlled substance to a minor (Health & Saf. Code § 11380(a)), possession of a controlled substance, and possession of a firearm by a felon.
At trial victims testified defendant paid them for sex, took nude photos, and supplied drugs; an expert testified about trafficking but acknowledged statutory changes removing coercion as an element for minor-victims.
Jury convicted on all charged counts; sentence aggregated to 19 years 4 months prison (including aggravated upper term on one trafficking count and concurrent aggravated terms on several sexual-intercourse counts).
On appeal Hicks raised instructional-error claims (CALCRIM 1244/1144 and failure to give lesser-included and accomplice corroboration instructions), insufficiency as to one trafficking count, multiple sentencing challenges (upper term abuse, failure to state reasons, § 654 stay), and an error on the abstract of judgment.
Court affirmed all convictions and most sentencing rulings, found only the abstract of judgment contained a clerical error as to count 11 and ordered it corrected.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Instructional error: CALCRIM 1244 (mistake of age language) given with CALCRIM 1144	The prosecution argued instructions were legally correct and not confusing given the trafficking statute disallows mistake of age as a defense.	Hicks argued including “mistake of age is not a defense” together with CALCRIM 1144 (which requires knowledge under §311.4(c)) negated the age-knowledge element and was confusing/incorrect.	No reversible error. Instruction correct in context: jury decided §236.1(c) (intent to violate §311.4), not adjudicate a §311.4 guilt requiring age knowledge; harmless beyond a reasonable doubt.
Failure to instruct on lesser-included offense (§311.4(c) posing/modeling) sua sponte	Prosecution: not required because §236.1(c) (intent to commit §311.4) can be satisfied without actually committing §311.4; elements/pleading tests not met.	Hicks: trial court should have instructed on §311.4(c) as a lesser-included offense of trafficking.	No error. §311.4(c) is not a lesser-included offense under elements or accusatory-pleading tests; any error would be harmless.
Sufficiency of evidence as to Marlene trafficking conviction	Prosecution: substantial evidence supports intent to violate §311.4 and trafficking; mistake-of-age statute precludes reliance on age mistake.	Hicks: insufficient evidence he photographed Marlene after learning her true age.	Conviction upheld. Evidence supported intent to commit §311.4 and jury could infer awareness of minors; actual sequence/timing not required for §236.1(c).
Sentencing: imposition of upper term(s); reasons on record; §654 stays; abstract error	Prosecution: aggravating factors (numerous prior convictions of increasing gravity) justified upper term(s); court stated reasons on record; crimes were temporally separable so §654 inapplicable; clerical error on abstract should be corrected.	Hicks: abuse of discretion on upper term for count 1; court failed to state reasons for other aggravated concurrent terms; multiple counts should have been stayed under §654; abstract misstates count 11 term.	Mixed: No abuse of discretion—court stated adequate reasons (Rule 4.421(b)(2)) for aggravated terms; reasons were placed on the record for each count; substantial evidence supported denial of §654 stays because offenses were temporally separable or preparatory; court ordered correction of abstract (count 11 to reflect consecutive 1/3 midterm = 2 years).

Key Cases Cited

People v. Houston, 54 Cal.4th 1186 (explains inquiry on jury instruction error in context)
People v. Breverman, 19 Cal.4th 142 (mandatory sua sponte instruction on lesser-included offenses test)
People v. Tobias, 25 Cal.4th 327 (victim-minors are not accomplices; no corroboration instruction required)
People v. Black, 41 Cal.4th 799 (standards for imposing aggravated term and abuse-of-discretion review)
People v. Gaio, 81 Cal.App.4th 919 (temporal separation and opportunity to reflect defeat §654 unity)
People v. Alvarez, 178 Cal.App.4th 999 (preparatory sexual conduct and §654 analysis)
People v. Watson, 46 Cal.2d 818 (standard for harmless error on omitted jury instructions)