People v. CalhounPeople v. Calhoun
Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
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John Wayne Calhoun recruited 13-year-old D.T. into prostitution, acted as her pimp, treated her violently, and engaged in sex acts with her. A jury convicted him of human trafficking of a minor, pimping a minor under the age of 16, pandering a minor under the age of 16, lewd and lascivious acts on a child under the age of 14, unlawful sexual intercourse, and oral copulation of a child under the age of 14. The jury found true an allegation that Calhoun unlawfully used force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury in committing the crime of human trafficking. The trial court sentenced him to 15 years to life in prison with a consecutive term of six years for one count of committing a lewd and lascivious act on a child under the age of 14 and a consecutive term of two years for another count of the same offense.
We affirm. As to each of Calhoun‘s contentions, we conclude: (1) the trial court did not err by excluding evidence of D.T.‘s acts of prostitution occurring after Calhoun was placed in custody; (2) the evidence at the preliminary hearing imparted notice to Calhoun of the factual basis for counts 6 and 7 sufficient to satisfy due process; (3) venue in Orange County was proper; (4) the trial court did not err by admitting evidence of certain text messages; (5) expert testimony on statements made by D.T. during a police interview and on the content of text messages was admissible and any error was harmless; and (6) the trial court did stay execution of sentence on counts 2, 3, and 5 pursuant to
FACTS
I.
Calhoun Turns 13-Year-Old D.T. into a Prostitute.
D.T. was born in October 2002. She was placed in foster homes or group homes beginning in October 2015 because her father physically and emotionally abused her and had a substance abuse problem. In May 2016, she ran away from a group home
After returning to Raymond‘s house, D.T. and Calhoun talked for several hours. Calhoun said he was 30 years old. He asked D.T. if she “had ever made money before.” D.T. did not know what he was talking about and answered no.
Calhoun asked D.T. to go with him to the home of Anntaneisha Louie, whom Calhoun called “Auntie,” in San Bernardino. D.T. agreed. When they arrived at Louie‘s house, D.T. waited in the car while Calhoun went inside. Calhoun returned with women‘s clothing, which he said were for D.T. While at Louie‘s house Calhoun again asked D.T. if she “had ever made money.” When she asked what he meant, he asked her if she “had ever slept with people to get money.” She told him no.
After spending several nights at Louie‘s house, Calhoun drove D.T. to Ontario, California, where he picked up two women at an apartment complex. Each woman carried a bag of clothing. Calhoun drove D.T. and the women to a hotel in Los Angeles. The next morning, Calhoun told D.T. to get up and take a shower. When she got out of the shower, some of the clothes the women had brought were laid out on the bed. Calhoun selected a dress and told D.T. to put it on. D.T. did as she was told. Calhoun, along with D.T., took the two women back to Ontario. When D.T. asked Calhoun who the women were, Calhoun said it was none of her business.
Calhoun and D.T. returned to Louie‘s house, where Calhoun told D.T. he wanted to take photographs of her and post them on Backpage, an online website for advertising prostitution services. D.T. did not want to do it, but she was scared of what Calhoun might do if she said no, so she agreed. Calhoun took photographs of D.T.
About one hour later, Calhoun received a text message in response to the Backpage posting. He drove D.T. to a house in San Bernardino to meet the customer. On the way, Calhoun gave her a price list for various sex acts and went over some of the rules of the trade. He gave D.T. a condom and told her to always use one. He asked her to call him “Daddy” and told her to immediately delete any text messages they exchanged so the messages would not be available if police ever looked through her phone.
When they arrived, Calhoun parked down the street, said he would wait in the car, and told D.T. to text him when she went inside. D.T. performed the requested sexual act and was paid $80. She did not want to do it but she did not want Calhoun to be angry with her. She gave the money to Calhoun.
Calhoun drove D.T. back to Louie‘s house, where D.T. was given some clothes. He then drove her to G Street, known as a “track” or “blade” (an area frequented by prostitutes) in San Bernardino. Calhoun told her he was “going to put her down on G Street” where she “was to make money for him.” He gave D.T. three condoms, ordered her out of the car, and told her to complete three sex acts and give the money to him. She did as she was told and turned the money over to Calhoun.
Calhoun and D.T. returned to Louie‘s house. Calhoun left and instructed D.T. to stay there until he returned. D.T. did not want to be alone and texted a friend named Michael. He picked up D.T. and took her to his house. When D.T. arrived at Louie‘s house, Calhoun asked her where she went. She did not want to tell him the truth because he had ordered her not to talk to any other African-American men (he had told her that any African-American man who tried to talk to her was likely another pimp). D.T. told Calhoun that she had gone to visit her aunt. He accused her of lying and ordered her to go outside. D.T. and Calhoun left and got into his car. He punched her in
Calhoun left Louie‘s house the next morning and again told D.T. to stay there until he got back. D.T. was angry with Calhoun for leaving without saying where he was going. She sent a text message to her friend Markell Stewart and asked him to come and get her. While D.T. was with Stewart, Calhoun sent her text messages instructing her to return to Louie‘s house. D.T. sent a text message to Calhoun that she was staying with her aunt but she spent the night with Stewart in Victorville. The next day, Stewart dropped D.T. and another woman off along G Street. D.T. walked G Street looking for customers so that she would have money to give Calhoun.
II.
D.T. Is Detained and Interviewed by Police Detectives.
On May 10, 2016, San Bernardino Police Detective Kimberly Hernandez was driving a marked patrol car westbound on 9th Street approaching G Street in the City of San Bernardino. She pulled over a vehicle driven by Stewart because it had tinted windows. Hernandez searched the vehicle and found two cell phones in the center console. One cell phone was a white HTC brand and the other was a black Vortex brand. Hernandez also found, in the back seat of the car, women‘s clothing of the type typically worn by prostitutes in the area. Hernandez confiscated the two cell phones.
Once the traffic stop was concluded, Hernandez continued patrolling the area. While driving southbound on G Street she saw a woman (K.V.), whom she recognized from an identification card found in Stewart‘s vehicle. Hernandez also noticed that K.V. was walking with a very young girl whom Hernandez had not seen before. At trial, Hernandez identified the young girl as D.T. Hernandez believed that K.V. and D.T. were working as prostitutes and made contact with them.
At the police station, Hernandez and a sheriff‘s deputy interviewed D.T. for over five hours. During the interview, D.T. identified Calhoun as her pimp and said she had been working for him for several months. She said Calhoun had driven her to several blades in San Bernardino and Orange County to work as a prostitute for him. She had been with Calhoun the previous day, but had left him and took his cell phones with her. Stewart had driven D.T. and K.V. to San Bernardino that day. D.T. said Calhoun had “laid his hands on her” many times, recently had “socked her in the jaw,” and was mean to her and did not respect her. Calhoun expected her to earn $500 to $600 in San Bernardino and $900 in Orange County and if she did not make her “trap” (quota), Calhoun would “whoop her ass.” Calhoun would apologize after striking D.T. but he did not change his behavior.
D.T. told Hernandez the two cell phones found in Stewart‘s vehicle belonged to Calhoun. She took the cell phones from Calhoun because she was upset with him and had left them in Stewart‘s vehicle. The white HTC cell phone was used to listen to music. The black Vortex cell phone was used for text messaging and had a contact with the name “Daddy” with Calhoun‘s photograph. D.T. said she used the black Vortex cell phone to communicate with Calhoun.
Hernandez obtained permission to look through the Vortex cell phone and D.T.‘s ZTE cell phone. Hernandez reviewed the text messages and concluded they were consistent with pimping and prostitution. In the text messages, D.T. referred to Calhoun as John. The ZTE cell phone had a contact for “Daddy” with a photograph of Calhoun. Hernandez also noticed several text messages sent to Stewart‘s phone on May 10 and 11,
D.T. said that, on the previous day, Calhoun had been repeatedly calling her and leaving threatening voicemail messages. He demanded she return his cell phones, and called her a “ho,” a “slut,” and a “bitch.”
At the conclusion of the interview, Hernandez released D.T., who was subject to a custody warrant, to Riverside County Child Protective Services. The next day, Hernandez took photographs of D.T.‘s Facebook messages from May 12, 2016, which were depicted in exhibit 20. From the Facebook messages, it appeared D.T. had contacted Calhoun and referred to him as Daddy.
III.
D.T. Returns to Prostitution with Calhoun as Her Pimp.
D.T.‘s social worker picked up D.T. from the police station. At some point, D.T. asked the social worker to stop the car. When the car stopped, D.T. got out and ran to a gas station where Calhoun had agreed to pick her up. Calhoun was angry and slapped D.T. in the face. He drove her to Louie‘s house and told her never to leave him again.
Shortly after returning to Louie‘s, Calhoun and his cousin Joseph drove D.T. to Figueroa Street in Los Angeles, an area known for prostitution activity. Calhoun had told D.T. he was going to “put [her] down on Fig in L.A.” so that she would “make money for him.” Calhoun gave D.T. three condoms and told her to complete three sex acts and to text him before each one. D.T. completed oral sex with three customers and gave Calhoun the money she had earned.
Calhoun told D.T. they would travel to San Francisco because it was easier to make money in San Francisco than it was in San Bernardino or Los Angeles. D.T. did not want to prostitute herself in San Francisco, but she did not want to say so to Calhoun for fear he would get angry and hit her. The next morning, Calhoun drove D.T. to San Francisco, where they stayed for three days at his cousin‘s house. He posted two ads on Backpage and introduced D.T. to another prostitute named “Heaven.”
Calhoun and D.T. got into an argument while staying with his cousin. Calhoun put his hands around D.T.‘s neck and choked her. She had difficulty breathing, passed out, fell, and scratched her right arm on a couch. When she regained consciousness, Calhoun was standing over her. He said, “Look what you made me do” and ordered D.T. to go to the car and clean up her arm.
After the third night, Calhoun drove D.T. back to Louie‘s house. He left after telling her to stay at the house. While Calhoun was gone, D.T. sent a text message to a friend, who came to the house and picked her up. When Calhoun returned and found D.T. gone, he sent her text messages asking why she had left. The next morning, the friend drove D.T. back to Louie‘s house so that D.T. could retrieve some personal items. When D.T. went inside, Calhoun told her to go to the bathroom, pulled her by the arm, and demanded to know where she had been. D.T. said she had been at her aunt‘s house. Calhoun told D.T. to stop lying, backhanded her, and punched her several times in the face. She fell backwards into the bathtub and, when she tried to get up, Calhoun struck her in the right eye. D.T.‘s nose started bleeding. Calhoun told her to clean up and get out.
As D.T. walked outside, she received a telephone call from Calhoun‘s cousin Joseph. After she ended the call, Calhoun stepped outside and asked who had
The next day, Calhoun told D.T. he had rented a room in San Bernardino from a friend so they would have a place to stay. After they moved some boxes into the room, Calhoun left and told D.T. to stay there and unload boxes.
That night, Calhoun picked up another woman and told D.T. the three of them were going to Orange County to make money. D.T. agreed because she was afraid he would hit her again. Calhoun drove to Harbor Boulevard and Hazard Avenue in Santa Ana, parked on a side street, gave D.T. three condoms, and told her to go out and make money for him and call him when she was finished. The other woman stayed in the car with Calhoun.
D.T. completed one act of vaginal intercourse and another act of oral sex. Calhoun had her charge $120 for the first and $80 for the second. D.T. gave Calhoun the money. After taking D.T. to get something to eat, Calhoun drove back to Harbor Boulevard and Hazard Avenue, gave D.T. three more condoms, and ordered her out of the car. As Calhoun had instructed, D.T. walked along Harbor Boulevard and waved at tricks to get their attention.
IV.
D.T. Is Detained in Santa Ana for Prostitution; Calhoun Is Arrested.
On June 2, 2016, at about 3:06 a.m., Santa Ana Police Officer Robert Velasco was patrolling the area of Harbor Boulevard and Hazard Avenue in Santa Ana. The area is known as the Santa Ana Blade and is well known for pimping and trafficking
Velasco noticed a very young woman walking along Hazard Avenue just west of Harbor Boulevard. Because she looked extremely young and the area was known for trafficking juveniles, Velasco pulled up and parked the patrol car alongside her. He approached the young woman and asked her for her name and date of birth. She gave a false last name and claimed she was born in October 1997. Velasco later learned the young woman was D.T. When two records checks did not uncover any information for her name or date of birth, Velasco told D.T. he knew she was a juvenile and was lying to him. He asked her for proof of her name and birthdate but D.T. had no identification with her.
Velasco asked D.T., who appeared nervous and scared, why she was out walking at 3:00 a.m. She said she was walking home but said she did not know her home address. When Velasco asked her why she did not know her home address, D.T. said she was going to her cousin‘s house. D.T. did not know the cousin‘s name or address.
Velasco asked D.T. if he could look through her cell phone, which was a brand “BLU.” D.T. agreed and gave him the phone. While Velasco was searching through the cell phone, a text message came through at 3:11 a.m. from a contact named John saying “WYA,” which means “where are you at?”
Velasco told D.T. he knew she was working as a prostitute. D.T. then admitted she had been working as a prostitute for a couple of months and was from San Bernardino, but had been to Santa Ana three to four times to work as a prostitute. She said her friend named John, who had just texted her, had given her a ride from San Bernardino to Santa Ana.
Velasco examined the text message thread between D.T. and John and recognized several messages indicating a pimp/prostitute relationship. One such message began with the words “Good morning, daddy,” which is significant because it is common
Officer Velasco also saw a message thread reading: (1) “He want me to come to Long Beach he said if he got a room“; (2) “He talking big money“; (3) “Okay“; and (4) “What‘s my name to him?” Velasco concluded the first two messages were the pimp setting up a date for the prostitute.
After reading these messages, Velasco and D.T. went to find John. D.T. told Velasco that John was driving a green four-door Honda Accord and that he might be in the area of Hazard Avenue and Bewley Street. Velasco placed D.T. in the back of his patrol car and drove to that area. Velasco eventually found the green Honda Accord in the area of Hazard Avenue and West Street in Santa Ana.
Velasco parked directly behind the Honda, got out of his patrol car, and with his partner Officer Phan, made contact with the two occupants. Calhoun was in the driver‘s seat. The passenger was released without being interviewed. Velasco dialed the number listed for “John” in D.T.‘s phone, and Calhoun‘s cell phone rang. During a search of Calhoun‘s car, $99 was found.
Velasco had Calhoun step out of the car and detained him. Calhoun was holding a blue, Samsung Galaxy cell phone. Calhoun confirmed the phone belonged to him.
After detaining Calhoun, Velasco further questioned D.T. She told Velasco she had been working in Santa Ana for less than an hour. She confirmed that “John” was
At the police station, an officer named Gibbons obtained D.T.‘s correct age, name, and date of birth. D.T. was arrested for lying to a peace officer and was sent to juvenile hall. Anaheim Police Investigator Happy Medina interviewed D.T. at juvenile hall. She told him Calhoun was her pimp.
V.
Expert Testimony on Human Trafficking and Pimping
Medina testified as an expert in pimping, pandering, and human trafficking. He also testified about the rules governing the pimping and pandering subculture. For instance, if the pimp is African-American, the prostitute is prohibited from looking at other African-American men for they might also be pimps. The prostitute must do whatever the customer asks her to do. Some services cost more than others. The pimp dictates everything the prostitute does.
A quota is an amount set by a trafficker or pimp which his prostitutes must earn in a day. A quota can be anywhere from $250 to $2,000 a day. A prostitute is not permitted to stop working until she has made the quota. The earnings are called a “trap.” After the prostitute engages in a couple of sex acts, the pimp takes the trap to prevent her from getting robbed or keeping some for herself.
Pimps generally give the prostitutes condoms three at a time so the pimps can control the number of sex acts. After every three sex acts, the prostitute must go back to the pimp‘s location, turn over the money, and get more condoms. The prostitute
Most communications between a prostitute and a pimp are made through text messaging. Medina has spoken to prostitutes who were told to delete all text messages and believes that practice is common. Pimps post advertisements for their prostitutes on various websites, such as Backpage and Craigslist. The pimp will use a false name for the prostitute and, if she is a minor, lie about her age. The pimp will photograph the prostitute for the advertisement and dictate what the prostitute wears and how she poses. The advertisement will ask the potential customer to send a text message to the pimp, who is posing as the prostitute. All of the arrangements are made through the pimp.
There are several styles of pimping and recruitment of prostitutes. The most common style is called the “boyfriend pimp” in which the pimp pretends to develop a normal boyfriend/girlfriend relationship with a girl, but the pimp‘s motive is to turn her into a prostitute. This style is most successful on girls who have not been prostitutes in the past. A “finesse pimp” is similar to a boyfriend pimp but uses charm to nurture young girls. By contrast, a “guerilla pimp” is one who predominately engages in force and violence to control the prostitute. Pimps can use more than one style; for example, at times, a boyfriend pimp may become violent.
A majority of the girls who become prostitutes have no father figure or male role model in their lives and many also have suffered personal trauma such as physical or sexual abuse. Most of girls who become prostitutes have a history of being in group homes or foster care, or running away from home. Girls have told Medina they were recruited directly out of foster care, placement facilities, and juvenile hall, where
“Daddy” is a very common term used by prostitutes to refer to their pimps. It connotes a father figure, protector, nurturer, and the person who lays down the rules and sets the boundaries.
A pimp expects a prostitute to have sex with him “on demand.” The prostitute is expected to view sex with the pimp as “sort of a reward, something that you get to do with daddy.” Medina had spoken with prostitutes who do not want be in that trade but nevertheless stayed with the same pimp. The girl stays because she has nowhere else to go and no other way to earn money, and accepts prostitution as her fate. She views the pimp, even if he is abusive, as the only person who accepts her for who and what she is.
Medina also looked at photographs downloaded from Calhoun‘s Samsung Galaxy cell phone. One photograph depicted Calhoun in a vehicle holding $100 bills. In more than one photograph, D.T. was in the back seat of the car. These photographs were of a type commonly taken by pimps, panderers, and human traffickers.
VI.
Expert Testimony on Cell Phone Records
Expert testimony was offered on the subject of cell phone records and data. The following is a breakdown of the various cell phones in this case:
HTC: The white cell phone found in the center console of Stewart‘s vehicle. D.T. told Hernandez this phone belonged to Calhoun.
Vortex: The black cell phone found in the center console of Stewart‘s vehicle. It belonged to Calhoun but was used by D.T. Hernandez identified the
ZTE: The personal cell phone used by D.T. at the time she was detained by Hernandez in May 2016. The Cellebrite download report is exhibit 34.
Stewart‘s cell phone: The cell phone used by Stewart and apparently confiscated by police in May 2016.
BLU: The personal cell phone used by D.T. at the time Calhoun was detained. Exhibit 21 is the Cellebrite download of text messages from this phone. Exhibit 22 identifies text messages on this cell phone to and from the contact “my baby heaven.” Exhibit 23 identifies text messages on this phone to and from the number (xxx) xxx-7157.
Samsung Galaxy: The cell phone Calhoun was holding when he was detained by Velasco. Exhibit 24 is the Cellebrite download report for this cell phone.
In addition, there were messages and data pertaining to an unrecovered cell phone with the number (xxx) xxx-5542.
Bruce Linn is an investigator with the Orange County District Attorney‘s Office and qualified as an expert in cell phone technology. Linn is assigned to the “TRACKRS” unit, which stands for “task force review aimed at catching killers, rapers [sic], and sexual offenders.” He conducted a forensic analysis of a Cellebrite download from the Samsung Galaxy cell phone recovered from Calhoun.
Linn is able to determine from data downloaded from a cell phone where it has been because the internal components of a cell phone produce GPS coordinates. A photograph taken by a cell phone camera produces metadata of the latitude and longitude lines identifying the camera‘s location when the photograph was taken.
Linn was provided a Cellebrite download from the Samsung Galaxy cell phone recovered from Calhoun. He determined that only a portion of the photos had location data. Based upon the chronology of the photos from earliest-dated to most
At trial, Linn gave a presentation on PowerPoint showing a map, date, time, and latitude and longitude coordinates of 61 photographs and two videos. The presentation showed that during the relevant time period, Calhoun was in San Bernardino, Riverside, Modesto, San Jose, San Francisco, Santa Ana, Los Angeles, and Long Beach.
During his investigation, Linn downloaded data from D.T.‘s BLU cell phone using Cellebrite. He noticed two separate photographs were take on May 17, 2016 at 11:52 a.m. on both D.T.‘s cell phone and Calhoun‘s cell phone at the same location near Richmond Point in the San Francisco Bay area.
Detective Hernandez, who had detained D.T. in May 2016, testified about text messages retrieved from the two cell phones found in Stewart‘s car (the HTC cell phone and the Vortex cell phone), D.T.‘s BLU cell phone, and Stewart‘s own cell phone. Hernandez was familiar with Cellebrite downloads and had Cellebrite downloads conducted on all of those cell phones.
D.T. had told Hernandez that she used the Vortex cell phone to communicate with Calhoun. Hernandez testified the Vortex cell phone had a contact under the name “Daddy” with a corresponding phone number of (xxx) xxx-5542. Text messages exchanged between D.T. and Calhoun related to pimping and prostitution. For example, in one message thread, D.T. sent a message advising Calhoun she had a customer. He replied, “Keep walking.” She then asked Calhoun how long she had to remain on the blade and if she could take a break and talk to a friend of hers. Calhoun ordered her immediately to stop talking to the friend.
Medina testified he was familiar with Cellebrite downloads and reports and had reviewed the cell phone downloads from the Samsung Galaxy, the BLU, the Vortex, the HTC, and the ZTE cell phones. Medina also reviewed exhibit 35, which is a collection of text messages to or from the “Daddy” contact with the number (xxx) xxx-5542. Medina read one incoming message from the Daddy contact: “Don‘t give no fuck. Give me my phones. I need my white one. I‘m not playing.”
Medina identified text messages on the Vortex cell phone to or from the contact Daddy with the number (xxx) xxx-5542. Outgoing messages are addressed to “Daddy” or “John.” The messages relate to pimping and prostitution activities. One incoming text message read, “Come get this condom” and an outgoing message read, “Daddy, hows much long I got to be out here and OK.” Medina testified the question about how much longer she had to be out was consistent with a pimp controlling the prostitutes working on the track and “okay” meant the girl would meet the pimp to get condoms. The next message read, “We need at least 100,” and was significant because it told the girl she had to make at least $100 before she could stop working.
Medina identified and reviewed exhibit 33, the Cellebrite report for the ZTE cell phone. Medina testified the BLU cell phone had outgoing text messages that were consistent with pimping, pandering, and human trafficking. In one message, D.T. texted, “Baby, I want to make up with you. Imma give you the best . . . sex ever, babe. I‘m sorry for today.” In another, she sent the following text message to the contact listed as John: “Good morning, Daddy. I hope you have a great day today. I‘m sorry for everything I have been doing wrong. You are the best thing that ever happened to me. And when I say that I want to spend the rest of my life with you, I mean it Babe. Just
Another message thread was between D.T. and her friend Heaven. D.T. sent a message stating, “Heaven, what you doing? I‘m in Oakland making my money. And it‘s for Daddy. Pockets.” Heaven responded, “Be safe tonight. What part of Oakland you in?” D.T. replied back that she was on “International,” a well-known track in Oakland. Later, D.T. texted Heaven and told her that she was about to get on the freeway and head back to San Bernardino. Heaven asked D.T. where “John” was. When D.T. sent a message back that he was “right here,” Heaven‘s response was, “Tell him [to] answer my text. It‘s important.” Medina testified those communications were consistent with contacts between two women working for the same pimp.
SUMMARY OF VERDICT AND SENTENCES
The jury found Calhoun guilty of one count of human trafficking of a minor under the age of 18 (count 1,
The court sentenced Calhoun as follows: (1) 15 years to life under count 1 as enhanced by the true finding on the
DISCUSSION
I.
The Trial Court Did Not Err by Excluding Evidence of D.T.‘s Acts of Prostitution Occurring After Calhoun Was Placed in Custody.
Calhoun contends the trial court erred by not permitting him to introduce evidence that D.T. continued to work as a prostitute after he was placed in custody. The trial court concluded such evidence was inadmissible under
Calhoun argues the evidence of D.T.‘s subsequent prostitution activity was relevant and admissible because: (1)
Before trial started, the prosecution moved to exclude evidence of D.T.‘s prior or subsequent acts of prostitution for purposes of impeachment. Defense counsel stated he wanted to impeach D.T. with evidence of acts of prostitution committed after Calhoun was placed in custody. Defense counsel argued prostitution is a crime of moral turpitude, there was no causal connection between Calhoun and the acts of prostitution committed by D.T. after Calhoun was in custody, and
During a break in D.T.‘s cross-examination, the trial court returned to the issue of evidence of D.T.‘s acts of prostitution after Calhoun had been placed in custody. The court stated: “There is so far uncontroverted testimony that [D.T.] had not been a prostitute until the defendant brought her into the business, this is from direct examination from the prosecution, the testimony that [Calhoun] caused it by having her make money, a term she stated that she had never heard before. Going into her subsequent sexual history as a prostitute is not relevant to the case. It is inflammatory. And even if [Evidence Code section] 1161 hypothetically did not exist, this would be a very simple [Evidence Code section] 352 analysis which also applies here because any probative value is outweighed by the prejudice. [¶] Now if that becomes an issue, we can talk about that. So far the only evidence that the witness prostituted herself was because of how the defendant taught her to do that. That‘s after the fact, after the defendant was arrested. According to her, he gave her the tools. The subsequent conduct does not become relevant at that point.”
After the prosecutor had completed redirect examination of D.T., defense counsel asked the court to reconsider its ruling due to her testimony that Calhoun had
B. The Evidence Was Inadmissible Under Evidence Code Section 1161(b) for Credibility or Impeachment of Character.
Calhoun was charged with and convicted of human trafficking in violation of
“(a) Evidence that a victim of human trafficking, as defined in Section 236.1 of the Penal Code, has engaged in any commercial sexual act as a result of being a victim of human trafficking is inadmissible to prove the victim‘s criminal liability for the commercial sexual act. [¶] (b) Evidence of sexual history or history of any commercial sexual act of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, is inadmissible to attack the credibility or impeach the character of the victim in any civil or criminal proceeding.”
The issue presented here is whether
We review issues of statutory interpretation de novo (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916) including statutes added by the passage of a ballot initiative (People v. Park (2013) 56 Cal.4th 782, 796). The primary purpose is to ascertain and effectuate the intent of the voters who passed the
The language of
History, both formally and colloquially, has several meanings. Formally, it can mean a “narrative of events connected with a real or imaginary object, person, or career” or “a systematic written account comprising a chronological record” or the formal “branch of knowledge . . . of human activities.” (Webster‘s 3d New Internat. Dict. (2002) pp. 1073-1074.) History can mean simply a “tale, story.” (Merriam-Webster‘s Collegiate Dictionary (11th ed. 2004) p. 590, capitalization omitted.) In everyday speech, history can mean events in the past or even reputation.
The various definitions of history all refer to events in the past, and Calhoun says history as used in
The Legislative Analyst stated that ballot initiative 35 “makes evidence of sexual conduct by a victim of human trafficking inadmissible for the purposes of attacking the victim‘s credibility or character in court.” (Ballot Pamp., Gen. Elec. (Nov. 6, 2012), analysis of Prop. 35 by the Legislative Analyst, p. 44.) As the Attorney General argues, the language used by the Legislative Analyst encompasses all of the victim‘s sexual conduct.
One purpose of the CASE Act was to “‘ensure just and effective punishment of people who promote or engage in the crime of human trafficking.‘” (In re M.D., supra, 231 Cal.App.4th at p. 999.) At trial, Medina testified that victims of human traffickers are typically runaways who often had bad experiences in the juvenile dependency system. Once introduced to (or forced into) prostitution by the trafficker, the victim remains a prostitute because she has nowhere else to go and no other way to earn a living. The human trafficker, having forced the victim into a life of prostitution, should
Calhoun argues
D.T. was not charged with prostitution or any offense in this case.
In any case, the trial court did, in effect, make a preliminary finding that D.T. was a victim of human trafficking. During D.T.‘s cross-examination, the court stated, “there is so far uncontroverted testimony that [D.T.] had not been a prostitute until
It might be, as Calhoun claims, that D.T. was not a human trafficking victim in the subsequent acts of prostitution in the sense that she had no pimp or her pimp was not Calhoun. He argues that excluding evidence of subsequent acts of prostitution would make
C. The Evidence Was Irrelevant to Negate an Element of Human Trafficking; Any Error in Excluding the Evidence Was Harmless.
Calhoun argues evidence of D.T.‘s commercial sexual acts was admissible to negate an element of the crime of human trafficking. The evidence, he argues, would negate the inducement, causation, and persuasion elements of
Calhoun undoes his own argument when, in his appellant‘s reply brief, he asserts that evidence of D.T.‘s other commercial sex acts “would have supported and corroborated her previous statements to law enforcement that [Calhoun] was not her pimp but a friend.” That is a credibility or impeachment purpose intended to discredit D.T.‘s trial testimony.
To the extent Calhoun had a legitimate purpose for introducing evidence of D.T.‘s other commercial sexual acts, exclusion of the evidence was harmless. The evidence that D.T. was a victim of human trafficking and that Calhoun was the trafficker was overwhelming. Evidence that D.T. might have later worked as an “independent contractor” rather than for a pimp does not negate Calhoun‘s culpability as a sex trafficker who initially induced or forced her into a life of prostitution. From evidence of subsequent acts of prostitution, it is not reasonably likely the jury would have drawn the inference that D.T. was an “independent contractor” when she was with Calhoun because such an inference would have been contrary to nearly all the other evidence. We conclude it was not reasonably probable that a result more favorable to Calhoun would have been reached had he been permitted to introduce evidence of D.T.‘s commercial sex acts for a purpose other than credibility or impeachment. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
D. The Trial Court Did Not Err by Excluding the Evidence Under Evidence Code Section 352 .
Evidence of D.T.‘s subsequent commercial sex acts was subject to exclusion under
II.
The Evidence at the Preliminary Hearing Imparted Notice to Calhoun of the Factual Basis for Counts 6 and 7 Sufficient to Satisfy Due Process.
Calhoun was charged in count 6 with committing a lewd and lascivious act on a child under the age of 14 in violation of
A. Background
The initial felony complaint alleged six counts. Count 1 charged Calhoun with human trafficking of a minor, count 2 charged him with pimping a minor, and count 3 charged him with pandering with a minor under the age of 16. Counts 4 and 6 charged Calhoun with violating of section 288a—committing a lewd and lascivious act on a child under the age of 14—and count 5 charged him with violating
At the preliminary hearing, D.T. testified she performed oral sex with Calhoun in Santa Ana on June 1, 2016. She could not recall where in Santa Ana or at what time that happened. At the preliminary hearing, D.T. testified she had sexual intercourse with Calhoun on June 1, 2016 at the home of his friend Joe. She also testified
Based upon D.T.‘s testimony, the prosecution requested the complaint be amended to add two more counts, count 7 and count 8, both alleging that between June 1 and June 2, 2016, Calhoun violated
The trial court granted the request to add counts 7 and 8. The court then found sufficient and probable cause and held Calhoun to answer counts 1 through 8.
Subsequently, the trial court granted Calhoun‘s motion under
When the case was tried, count 7 alleged that on or about June 1 and 2, 2016, Calhoun violated
At trial, D.T. testified she had oral sex with Calhoun twice. D.T. could not recall where, when, or how the acts of oral sex took place except to say they took place somewhere in California. She was certain she orally copulated Calhoun twice. D.T. testified she had sexual intercourse with Calhoun at least four times, twice on two
At trial, the prosecution did not argue, and the court never instructed the jury, that count 6 was based on an aiding and abetting theory. Instead, the prosecutor argued in closing that count 6 related to one of the occasions when D.T. had sexual intercourse with Calhoun and count 7 related to an act of oral copulation between her and Calhoun. The trial court gave a unanimity instruction directed to counts 4, 6, and 7.
B. Relevant Law
Article I, section 14 of the California Constitution requires that “[f]elonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.” This constitutional requirement means a person may not be prosecuted “in the absence of a prior determination of a magistrate or grand jury that such action is justified.” (Jones v. Superior Court (1971) 4 Cal.3d 660, 666.) “Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to a preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial.” (People v. Bomar (1925) 73 Cal.App. 372, 378.)
Once a defendant has been held to answer on the offenses alleged in a complaint, the People must within 15 days file an information alleging the offenses shown by the evidence presented at the preliminary hearing. (§ 739.) Due process requires that “an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.” (People v. Jones (1990) 51 Cal.3d 294, 317.) A defendant
C. There Was No Material Variance Between the Evidence at the Preliminary Hearing and the Evidence at Trial for Counts 6 and 7.
Calhoun argues his conviction under count 7 was based on evidence not elicited at the preliminary hearing. At the preliminary hearing, D.T. testified that she engaged in oral sex once with Calhoun, in Santa Ana. At trial, D.T. testified she orally copulated Calhoun twice, but could not remember where or when she did so other than to say it was in California.
The variance between D.T.‘s preliminary hearing testimony and trial testimony was not material and does not warrant dismissal of count 7. “[U]nder normal circumstances, [a defendant‘s] opportunity to prepare an effective defense would not be affected merely because the evidence at trial showed the offenses occurred at a different time (within the time frame alleged in the original information) or a different [place]. . . . [N]either the time [citation] nor the place at which an offense is committed [citation] is material, and an immaterial variance will be disregarded.” (People v. Pitts (1990) 223 Cal.App.3d 606, 906 (Pitts).)
The preliminary hearing placed Calhoun on notice he was being charged with one count of engaging in oral copulation with D.T. Her trial testimony was that she
As to count 6, Calhoun argues: “The oral copulation events that [D.T.] testified to at trial and the evidence supporting Count Six were never the subject of a preliminary hearing . . . where it could be determined whether there was probable cause to believe that the offense had occurred.” D.T.‘s testimony at the preliminary hearing supported binding over Calhoun under count 6 on a theory he directly committed lewd and lascivious acts on D.T. At the preliminary hearing, D.T. testified Calhoun had sexual intercourse with her on at least four occasions between April 20 and June 1, 2016. Any one of those acts would have supported a conviction under
The preliminary hearing thus placed Calhoun on notice that he must be prepared to defend against no less than four acts of committing a lewd and lascivious act on a child. Count 4 covered the period from April 20 through June 2, 2016, while count 6 covered the period June 1 and 2 of the same year. Although the prosecutor stated at the preliminary hearing that count 6 was based on an aiding and abetting theory, the evidence presented, and thus the transcript of the hearing, established he also could be held liable as a direct perpetrator. “[I]t is not the complaint but the totality of the evidence produced at the preliminary hearing which notifies the defendant of the potential charges he may have to face in the superior court.” (People v. Donnell (1976) 65 Cal.App.3d 227, 233.)
Instructive is People v. Gil (1992) 3 Cal.App.4th 653, in which the defendant was convicted of five counts of forcible lewd conduct on two girls under the age of 14. At trial, one girl testified to incidents of the defendant touching her breasts and the defendant putting his penis in her vagina, and the other girl testified to acts of the defendant touching her breasts, putting his finger in her vagina, and putting his penis in her vagina. (Id. at pp. 655-657.) The defendant testified he had not committed any of the offenses. On appeal, the defendant argued he was denied notice of the charges because the evidence adduced at trial involved offenses not shown at the preliminary hearing. He claimed the inconsistencies about the dates of offenses and other changes in testimony at trial made the charges different than those shown at the preliminary hearing. (Id. at p. 657-658.)
In rejecting that argument, the Court of Appeal held the information charged the defendant with offenses shown by the evidence at the preliminary hearing in that the evidence at the preliminary hearing clearly supported five counts of lewd conduct however committed. (People v. Gil, supra, 3 Cal.App.4th at p. 658.) The court explained: “Inconsistencies and contradictions during the course of thorough cross-examination of child witnesses at trial is not persuasive of appellant‘s contention that the incidents at trial were completely different from the incidents described at the
In this case, as in People v. Gil, the variations and inconsistencies between D.T.‘s trial testimony and preliminary hearing testimony did not make the offenses charged in count 6 and count 7 different from those shown at the preliminary hearing. Instead, the inconsistencies and variances at most go to the weight and credibility of D.T.‘s trial testimony. We cannot see how Calhoun could have suffered any prejudice because his defense was, like that of the defendant in People v. Gil, he never committed the offenses.
The cases relied upon by Calhoun do not support dismissal of count 6 or 7. Pitts, supra, 223 Cal.App.3d at page 634, involved a 53-count information against one group of defendants, and a 58-count information against another group of defendants. The two informations alleged numerous charges of sex abuse against many child victims. (Ibid.) The Court of Appeal dismissed some of the counts because variances between the evidence at the preliminary hearing and the evidence at trial denied the defendants an opportunity to prepare a meaningful defense. (Id. at p. 905.) The court noted that variances in the time and place at which specific acts occurred were not material. (Id. at p. 907.) But many counts charged the defendants with conduct for which no evidence was adduced at the preliminary hearing; in others, the evidence at the preliminary hearing supported a different count; and in others, evidence was adduced at one defendant‘s preliminary hearing that was not adduced at the preliminary hearings for other defendants. (Id. at pp. 908-914.) The Court of Appeal noted that for some counts as charged in an amended information “the specific act and/or actors changed from previous amendments, and/or the specific act involving specific actors was not shown by evidence
In this case, in stark contrast to Pitts, the evidence at the preliminary hearing placed Calhoun on notice that, in addition to human trafficking, pimping, and pandering, he would have to defend charges he orally copulated D.T. once on June 1 or 2, 2016, engaged in sexual intercourse with her at least four times between April 20 and June 2, 2016, and aided and abetted her in engaging in sex acts with others on June 1 and 2, 2016. The information and amended information charged Calhoun with committing the acts against D.T. adduced by the evidence at the preliminary hearing. There were no changes in the specifics or actors from previous charging documents or from the evidence adduced at the preliminary hearing. Unlike Pitts, here, there could be no confusion about the actors, since Calhoun and D.T. were the only actors, about the time frame, which did not change from April 20 to June 2, 2016, or about the charged sexual acts directly perpetrated against D.T. To the extent there was a variance, Calhoun has not demonstrated how he might have been misled or suffered prejudice.
In People v. Burnett (1999) 71 Cal.App.4th 151, 155-156 (Burnett), the defendant was charged with being a felon in possession of a weapon, which was specifically alleged to be a .38-caliber revolver. During trial, a new witness described a second, entirely different incident involving a .357-caliber revolver. (Id. at p. 157.) The trial court permitted the prosecutor to amend the information to strike the .357-caliber allegation from the information. (Id. at p. 164.) The prosecutor argued the jury could convict the defendant based on either incident. (Id. at p. 169.) The jury convicted the defendant of being a felon in possession. (Id. at p. 156.)
On appeal, the defendant argued his conviction must be reversed because he was tried for the incident involving possession of the .357-caliber revolver, an offense not shown by the evidence at the preliminary hearing. (Burnett, supra, 71 Cal.App.4th at p. 164.) The Court of Appeal concluded the defendant could not have been prosecuted or convicted for possession of the .357-caliber revolver because that incident was separate, distinct, and not transactionally related to the incident shown by the evidence at the preliminary hearing. (Id. at p. 178.) The court reversed the conviction because the defendant‘s trial attorney rendered ineffective assistance of counsel by failing to object when it became clear the jury was going to be asked to convict based either on the incident that was the subject of the preliminary hearing or on the second incident described at trial. (Id. at pp. 179-183.)
This case does not present the situation in which a new witness, who did not testify at the preliminary hearing, testifies at trial about an incident separate, distinct and transactionally unrelated to the offense shown by the evidence at the preliminary hearing. Instead, in this case, the victim, D.T., testified at trial to a greater number of offenses than the number charged. The unanimity instruction ensured the juror‘s agreement as to the facts constituting the offense. (Burnett, supra, 71 Cal.App.4th at p. 173.)
In Graff, supra, 170 Cal.App.4th at page 349, the Court of Appeal reversed the defendant‘s convictions on two counts of violating
The Court of Appeal, reversing, held “[the defendant‘s] due process rights to notice of the charges against him were violated by the prosecution‘s decision to go forward with charges not established at the preliminary hearing.” (Graff, supra, 170 Cal.App.4th at p. 360.) The court concluded the magistrate was correct in ruling the prosecution failed to present evidence at the preliminary hearing to show the masturbation incidents fell within the timeframe necessary to establish a section 288(c)(1) violation. (Id. at p. 361.) The prosecution never sought, and the trial court never granted, an amendment of the information to charge the defendant with violations of section 288(c) based on the incidents of masturbation. (Id. at p. 362.) Thus, the defendant was wrongly convicted of offenses not established at the preliminary hearing or charged in the information. The Court of Appeal concluded the defendant suffered prejudice from the prosecution‘s delay in making its theory known because “[i]n cross examining [the victim], defense counsel had no reason to pin down the dates of the masturbation incidents or to impeach [the victim] with her earlier testimony that she could not remember when either of the incidents occurred.” (Ibid.)
III.
Venue in Orange County Was Proper.
After the prosecution rested, Calhoun brought an oral motion for judgment of acquittal under
A. Background
At the preliminary hearing, D.T. testified that on June 1, 2016 she had oral sex with Calhoun in Santa Ana and had five customers. That testimony was the basis for establishing venue in Orange County for counts 4 through 7. At trial, D.T. testified she did not know where Calhoun engaged in oral sex and sexual intercourse with her except to say it was somewhere in California.
In opposition to Calhoun‘s motion for a judgment of acquittal for improper venue, the prosecutor argued that human trafficking (count 1) was a continuous offense,
Defense counsel argued in response that the matter was governed by
The trial court concluded
B. Relevant Venue Statutes
Venue in Orange County for counts 1, 2, and 3 was proper under sections 781 and
C. D.T.‘s Preliminary Hearing Testimony Established Venue in Orange County for Counts 4 Through 7.
At the preliminary hearing, D.T. testified she had sexual intercourse and oral sex with Calhoun in Santa Ana on June 1, 2016. She also testified she caught two dates that night before getting a bite to eat and caught two or three dates after eating. At the preliminary hearing, the prosecutor stated count 6 was based on the theory that Calhoun committed lewd and lascivious acts on D.T. by aiding and abetting those acts of prostitution in Santa Ana. D.T.‘s testimony conferred venue in Orange County over counts 5, 6, and 7 under section 777 and allowed joinder of count 4. Count 5 (
Calhoun agrees Orange County venue was properly established at the preliminary hearing for counts 4 through 7. He concedes he had no cause to challenge venue based on the preliminary hearing testimony and he did not challenge venue until after the prosecution rested at trial.4 He contends, however, that D.T.‘s trial testimony
D.T.‘s trial testimony did not divest Orange County of venue for counts 4 through 7. We assume for argument‘s sake that trial testimony could divest a court of venue once venue has been confirmed by evidence at the preliminary hearing. We find it significant, as did the trial court, that D.T. did not testify she lied at the preliminary hearing about engaging in oral sex with Calhoun in Santa Ana. She testified at trial she did not know where that happened. Thus, venue was not premised on false testimony. The trial court, in which venue decisions are vested (Posey, supra, 32 Cal.4th at p. 201), reached the same conclusion. As there was no contradiction between D.T.‘s preliminary hearing and trial testimony, and D.T. did not retract her preliminary hearing testimony, D.T.‘s preliminary hearing testimony remained sufficient to support venue under section 777. If, as Calhoun contends, D.T.‘s trial testimony were controlling on the issue of venue, then no county would have venue over counts 4 through 7.
Upholding Orange County venue on counts 4 through 7 comports with the purposes for the criminal venue statutes identified in People v. Simon, supra, 25 Cal.4th at page 1095. Calhoun does not contend that Orange County venue caused him inconvenience or impaired his ability to obtain evidence or secure witnesses. To the contrary, he was subject to trial on counts 1 through 3 in Orange County regardless of venue on the other counts. Defense evidence and witnesses were the same for all counts. Calhoun was arrested in Orange County while engaging in acts of human trafficking, pimping, and pandering, for which he was prosecuted. Orange County thus bore a
Because we conclude D.T.‘s preliminary hearing testimony established venue in Orange County over counts 4 through 7 under sections 777, 781, and 784.7, we need not address the Attorney General‘s arguments that Calhoun forfeited a challenge to venue, a motion under section 1118.1 was the wrong vehicle for challenging venue, or that venue for the human trafficking count also established venue over counts 4, 6, and 7.
IV.
The Trial Court Did Not Err by Admitting Evidence of Text Messages from the Vortex Cell Phone and Messages Related to Number (xxx) xxx-5542.
Calhoun argues the trial court erred by admitting text messages from the Vortex cell phone and text messages to and from the cell phone associated with the number (xxx) xxx-5542. He argues the prosecution failed to authenticate the text messages as coming from numbers associated with him.
A. Background
Exhibit 19, the Cellebrite report for the Vortex cell phone, identified incoming and outgoing text messages from July 5, 2016 through November 5, 2016. Calhoun‘s trial counsel did not object to admission of exhibit 19. To avert an ineffective assistance of counsel claim, we shall address Calhoun‘s argument that the trial court erred in admitting it.
The cell phone associated with the number (xxx) xxx-5542 was never recovered and so there is no Cellebrite report for it. The Vortex cell phone and the ZTE cell phone (D.T.‘s personal cell at the time D.T. was detained by Hernandez) communicated with the (xxx) xxx-5542 cell phone. Exhibit 35 is a collection of text messages to and from number (xxx) xxx-5542. Calhoun‘s counsel objected to the
B. Relevant Law
A writing must be authenticated before it may be admitted into evidence. (
C. The Text Messages Were Properly Authenticated.
1. Vortex Cell Phone
The prosecution produced sufficient evidence to support a finding that the text messages related in exhibit 19 (the Cellebrite report for the Vortex cell phone) were between D.T. and Calhoun. Hernandez‘s testimony established the Vortex cell phone belonged to Calhoun. Hernandez testified that when she stopped Stewart in May 2016 she searched his car and found two cell phones in the center console. D.T. told Hernandez the phones belonged to Calhoun and the Vortex cell phone was used for text messages. D.T. said she took the cell phones with her when she left Louie‘s house while Calhoun was away.
Exhibit 19 shows two outgoing text messages (#83, #188) sent to (xxx) xxx-5542 that refer to “John,” and other text messages refer to pimping and prostitution. Incoming text messages from (xxx) xxx-5542 clearly are from the pimp (#28: “Hey wen u out there don‘t text“; #55: “Do u have a condom“; #76: “I got to get you some condoms, I forgot“). Outgoing text messages to (xxx) xxx-5542 are clearly from the prostitute (#39: “I got one that has 40“; #48: “I have the money“; #102 “Daddy hows much long I got to be out here“).
Calhoun argues the Vortex cell phone probably belonged to D.T. Whether the phone belonged to D.T. or to Calhoun, the significant point is that the prosecution met its burden of establishing that D.T. used the cell phone to communicate by text message with Calhoun at the (xxx) xxx-5542 number.
2. Phone No. (xxx) xxx-5542
The prosecution presented sufficient evidence to establish that the unrecovered phone associated with the number (xxx) xxx-5542 belonged to Calhoun. There are at least two outgoing messages on the Vortex cell phone to the number (xxx) xxx-5542 that refer to “John.” Exhibit 35 is an extraction report for messages to or from (xxx) xxx-5542. The messages listed on exhibit 35 are either to or from “Daddy” and most refer to pimping and prostitution. Several messages (#11, #45, and #55) sent to (xxx) xxx-5542 refer to “John.” One message (#20) sent to that number was “Auntie said for u to call her.” Auntie was the nickname Calhoun used for Louie.
V.
Expert Testimony on D.T.‘s Statements Made During a Police Interview and on the Content of Text Messages Was Admissible or Harmless Error.
Calhoun argues the trial court erred by permitting Hernandez to testify about statements made by D.T. during her police interview on May 11, 2016 and by permitting Hernandez and Medina to testify about the content of text messages between D.T. and Calhoun. He argues the challenged testimony constituted case-specific hearsay made inadmissible by People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and violated his Sixth Amendment right to confront and cross-examine witnesses.
The Attorney General argues Calhoun forfeited his confrontation clause claim by not posing objections specifically on that ground. Calhoun made a general objection to evidence about text messages and made a hearsay objection to any testimony about statements made by D.T. to Hernandez. “‘[C]ounsel‘s failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal.‘” (People v. Redd (2010) 48 Cal.4th 691, 729.) Calhoun never specifically objected based on Sanchez or the confrontation clause. But to avert an ineffective assistance of counsel claim, we deem counsel‘s objections sufficient to preserve those claims.
A. Crawford v. Washington and Sanchez
The confrontation clause of the Sixth Amendment to the United States Constitution grants a criminal defendant the right to confront adverse witnesses. (
In Sanchez, the California Supreme Court concluded the holding in Crawford applies to testimonial hearsay information concerning a defendant‘s gang affiliation and activity. (Sanchez, supra, 63 Cal.4th at pp. 679-685.) In Sanchez, the court held (1) an expert witness may not relate as true case-specific facts asserted in hearsay statements unless they are independently proven and (2) if a prosecution expert witness seeks to relate testimonial hearsay, there is a violation of the federal confrontation unless there is a showing of unavailability, the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing. (Id. at p. 686.)
The California Supreme Court confirmed that an expert may rely on hearsay in forming an opinion but concluded an expert may not relate case-specific facts asserted in hearsay statements “unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 686.) An expert may “testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean.” (Id. at p. 676.) The court in Sanchez explained that case-specific facts are those of which the expert has no independent knowledge and relate “to the particular events and participants alleged to have been involved in the case being tried.” (Ibid.) The expert may render an opinion based on case-specific facts but may not relate such facts unless they are within the expert‘s personal knowledge. (Ibid.)
The Sanchez court considered the permissible scope of expert testimony and adopted this rule: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert‘s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.)
We assess prejudice resulting from the admission of expert testimony in violation of Sanchez under the standard of Watson, supra, 46 Cal.2d at page 836. (People v. Flint (2018) 22 Cal.App.5th 983, 1003-1004 (Flint); People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 510.) The Watson standard applies “even where the expert‘s testimony included multiple statements that were inadmissible under Sanchez.” (Flint, supra, at p. 1004.) Under the Watson standard, reversal is required only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
B. Testimony on D.T.‘s Statements Made During the Police Interview Was Admissible Under the Hearsay Exception for Prior Consistent Statements.
When D.T. was detained in May 2016, she was taken to a sheriff‘s station where she was interviewed by Hernandez and a sheriff‘s deputy. At trial, Hernandez testified about statements made by D.T. during the interview. The Attorney General does not dispute the testimony was offered for the truth of the statements made by D.T. but argues D.T.‘s statements fell within the hearsay exception for prior consistent statements.
Evidence Code section 1236 states: “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is
Calhoun concedes that express and implied charges of fabrication were made throughout D.T.‘s trial testimony. “This broad, implicit charge of fabrication” allowed the introduction of D.T.‘s prior consistent statements. (People v. Kopatz (2015) 61 Cal.4th 62, 86.) Calhoun contends D.T.‘s statements made during the interview were inconsistent with her trial testimony and D.T. admitted at trial that some statements made during the interview were false.
We agree with the Attorney General that D.T.‘s statements made during the interview, and related by Hernandez in her testimony, were for the most part consistent with D.T.‘s trial testimony. Most significantly, D.T. told Hernandez and testified at trial that Calhoun was her pimp, he drove her to several blades to work as a prostitute, she had been working for Calhoun for several months, and he physically abused her.
Calhoun does not entirely disagree; instead, he identifies four categories of statements made by D.T. during the interview which he contends either were inconsistent with her trial testimony or admitted to be false.
(1) Calhoun asserts: “[D.T.] never testified on direct that Mr. Calhoun believed she was 14 years old. [D.T.] never testified that Mr. Calhoun punched her in the jaw. [D.T.] never testified that Mr. Calhoun required a trap of $500 to $600 a night and if she did not make her trap, Mr. Calhoun would hit her. [D.T.] also never testified that Mr. Calhoun‘s cousin Raymond threatened to shoot her up.” This assertion is correct. But, as the Attorney General points out, there was abundant evidence that on one occasion Calhoun punched D.T. on the left side of her face, giving her a black eye, and that on
(2) Calhoun asserts D.T., at trial, admitted the following statements made during the police interview were false: Stewart was her boyfriend, she first had sex with him, he turned her into a prostitute, and she stayed with him when she had nowhere to go. Stewart was her pimp and told her “the rules” for being a prostitute. Those statements were inconsistent with D.T.‘s trial testimony and should have been excluded. The error was harmless given the overwhelming evidence that Calhoun committed the charged offenses. Indeed, the error redounded to his benefit, because the inconsistency undermined D.T.‘s credibility.
(3) Calhoun asserts D.T. was not telling the truth when she told Hernandez that Calhoun had taken her “multiple times” to the blade in Orange County. At trial, D.T. testified the first time and only time she went to Orange County was on the night she was arrested (June 1-2, 2016). Hernandez testified D.T. had said Calhoun drove her to several blades, including Harbor Boulevard in Orange County, to work as a prostitute. D.T.‘s statement to Hernandez was inconsistent with D.T.‘s trial testimony. Error in admitting evidence of the statement was harmless given the overwhelming evidence that Calhoun committed the charged offenses. Indeed, the error redounded to his benefit, because the inconsistency undermined D.T.‘s credibility.
(4) Calhoun asserts D.T. was not telling the truth when she said at the interview she and Calhoun had had sex several times. He does not provide a citation to the record for D.T.‘s statement to Hernandez. We decline to consider the assertion.
C. Any Sanchez Error Was Harmless.
Calhoun contends the trial court committed Sanchez error and violated his confrontation clause rights by permitting Hernandez and Medina to testify about the content of text messages between D.T. and Calhoun. Any conceivable Sanchez error was harmless because the content of the text messages was independently proven through the Cellebrite reports and extracts from those reports, which were properly authenticated and admitted into evidence as exhibits 19, 21-26, and 33-35. (Flint, supra, 22 Cal.App.5th at p. 1000.)
In addition, as the Attorney General argues, the content of the text messages between Calhoun and D.T. was admissible under the coconspirator exception to the hearsay rule, Evidence Code section 1223. Hearsay statements made by coconspirators are admissible against a party if the offering party presents independent evidence to establish the prima facie existence of a conspiracy. (People v. Hardy (1992) 2 Cal.4th 86, 139.) “Once independent proof of a conspiracy has been shown, three preliminary facts must be established: ‘(1) that the declarant was participating in a conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration the party against whom the evidence is offered was participating or would later participate in the conspiracy.‘” (Ibid.)
Sufficient evidence was presented at trial to establish the prima facie existence of a conspiracy between Calhoun and D.T. A prostitute can conspire with a pimp; their functions are “interrelated” and one aids and abets the other. (People v. Ambrose (1986) 183 Cal.App.3d 136, 139.) Sufficient evidence at trial was presented to establish the three preliminary facts necessary to make the coconspirator statements
D. There Was No Confrontation Clause Violation.
There was no confrontation clause violation because the text messages were not testimonial. In determining whether a hearsay statement is testimonial, “the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.” (Ohio v. Clark (2015) 576 U.S. 237, 245 [135 S.Ct. 2173, 2180].) “Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” (Sanchez, supra, 63 Cal.4th at p. 689.)
We question whether the text messages are hearsay and thus even subject to exclusion under the confrontation clause. We do not need to decide that issue because the text messages are not in the least bit testimonial. The messages were informal, did not involve law enforcement, and did not have the primary purpose of creating a substitute for trial testimony or memorializing facts relating to past criminal history.
VI.
The Trial Court Stayed Execution of Sentence on Counts 2, 3, and 5 Pursuant to Section 654.
Calhoun argues the trial court erred by imposing concurrent sentences on counts 2, 3, and 5 instead of staying execution of sentence on those counts under section 654. The trial court stayed execution of sentence on those counts. At the sentencing, the court stated, “stayed 654 of the Penal Code,” as to counts 2, 3, and 5. The court minutes
DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
ORDER GRANTING REQUEST FOR PUBLICATION
The Office of the District Attorney, Orange County, California, has filed a request that our opinion, filed on July 9, 2019, be certified for publication. It appears our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c)(1), (4), and (6). The request is GRANTED. The opinion is ordered published in the Official Reports. Respondent‘s request for partial publications is DENIED as moot.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.