People v. Hicks
225 Cal. Rptr. 3d 682
Cal. Ct. App. 5th2017Background
- Defendant Daryl Hicks, age 57, was convicted of: three counts of human trafficking of a minor (Pen. Code § 236.1(c)), four counts of unlawful sexual intercourse with a minor more than three years his junior (§ 261.5(c)), three counts of 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. Sentenced to 19 years, 4 months.
- Victims were runaways from a group home (Orangewood): Angelica (17), Jazmin (16), Marlene (16), and Bree (17). Hicks supplied drugs, paid for sex, and took sexually explicit photos of several girls.
- Evidence included victims’ testimony describing sex, payments, drug provision, and a memory card with explicit images seized at Hicks’s residence.
- Trial used CALCRIM Nos. 1244 and 1144 to define human trafficking (intent to commit § 311.4 offense) and using a minor to produce sexual images; an expert on trafficking also testified.
- Posttrial, Hicks raised multiple claims on appeal: instructional error (mistake-of-age language and lesser‑included offenses), insufficiency as to one trafficking count, refusal to give accomplice instruction, imposition of aggravated terms, section 654 stays, and an error on the abstract of judgment.
- Court affirmed all convictions and most sentencing determinations but ordered correction of an error on the abstract of judgment concerning count 11.
Issues
| Issue | Plaintiff's Argument (Prosecution) | Defendant's Argument (Hicks) | Held |
|---|---|---|---|
| CALCRIM mistake‑of‑age language with CALCRIM 1144 | Instructions were correct and context made clear jury considered intent to commit § 311.4 under § 236.1(c) | Inclusion of "being mistaken about the other person's age is not a defense" conflicted with CALCRIM 1144’s knowledge element and confused jury | No reversible error; instructions correct in context and harmless under Chapman because jury convicted related § 261.5 counts showing knowledge of age |
| Failure to instruct sua sponte on lesser included (§ 311.4(c)) | No lesser included because § 236.1(c) requires intent to commit § 311.4, not commission — elements and accusatory‑pleading tests fail | Instruction on § 311.4(c) as lesser should have been given | No duty to instruct; not a lesser included offense; even if error, harmless under Watson |
| Sufficiency of evidence for trafficking as to Marlene | Substantial evidence showed Hicks intended to violate § 311.4 and had knowledge or could be inferred to know victim age | Prosecution failed to show photos were taken after Hicks knew Marlene’s true age | Conviction supported; intent and knowledge can be inferred from surrounding facts; sufficiency upheld |
| Accomplice instruction re: victim testimony | Minors who are victims are not accomplices; statutes and Evidence Code § 1161 bar prosecuting victims | Victims (e.g., Angelica) acted as accomplices (brought others, encouraged) so testimony required corroboration | Court correctly refused accomplice instruction; minors are victims not accomplices under cited authority |
| Imposition of upper term on trafficking count for Marlene | Prior convictions numerous and increasing in severity justified aggravated term under Rule 4.421(b)(2) | Aggravated term improper given facts; prosecution initially offered lower exposures | No abuse of discretion; court stated reasons on record and evidence supports aggravation |
| Failure to state reasons for aggravated concurrent terms on other counts | Court articulated Rule 4.421(b)(2) reasons on record for counts 3–5, 8, 10, 12; count 13 received lower term | Court silent as to reasons, requiring remand | No error — court did state reasons on the record for those counts |
| Section 654 stay of multiple counts (drugs, intercourse, photos) | Offenses were separate acts on different occasions or preparatory, so multiple punishments proper | Single objective; punishment should be stayed as indivisible conduct | No 654 error; temporal separation and distinct objectives/supporting facts show divisibility for each victim |
| Abstract of judgment error | N/A | Abstract incorrectly described count 11 term; court meant one‑third midterm (2 years) | Court ordered correction of abstract to reflect consecutive one‑third midterm (2 years) |
Key Cases Cited
- People v. Houston, 54 Cal.4th 1186 (instructional error reviewed in context)
- People v. Breverman, 19 Cal.4th 142 (trial court must instruct sua sponte on lesser included offenses when evidence supports)
- People v. Tobias, 25 Cal.4th 327 (minor victims of proscribed conduct are not accomplices; corroboration instruction not required)
- People v. Black, 41 Cal.4th 799 (aggravating circumstances and sentencing discretion)
- People v. Gaio, 81 Cal.App.4th 919 (temporal separation and renewed intent defeat section 654)
- People v. Watson, 46 Cal.2d 818 (prejudice standard for failure to instruct on lesser included offenses)
- Chapman v. California, 386 U.S. 18 (harmless beyond a reasonable doubt standard for federal constitutional error)