THE PEOPLE, Plаintiff and Respondent, v. ISIAH CAMPBELL, Defendant and Appellant.
C088348
(Super. Ct. No. P18CRF0064)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
Filed 6/29/20
Mark A. Ralphs, Judge.
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of El Dorado County, Mark A. Ralphs, Judge. Affirmed.
Scott Concklin, under appointment by the
Defendant Isiah Campbell appeals from the judgment entered after a jury found him guilty of three counts of pimping (
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
We summarize the relevant facts in the light most favorable to the jury‘s verdicts. (See People v. Abilez (2007) 41 Cal.4th 472, 504.) Additional information necessary to the resolution of this appeal is set forth below. For purposes of consistency and clarity, we refer, as the parties did in the trial court, to the alleged victims in this case as Jane Doe 1 through Jane Doe 12 (hereafter JD1, JD2, etc.; collectively Jane Does).
JD1‘s Testimony
JD1 is from Serbia. When she lived there, she occasionally had sex with men in exchange for money or favors, which was an acceptable and a common occurrence at the time.
Around 2008, JD1 immigrated to the United States. Thereafter, she married a man named Rade2 and worked various jobs. At some point, she posted an advertisement on Backpage.com, a classified advertising Web site commonly used to advertise for prostitution activities, and had sex with men in exchange for money or favors “from time to time.”
In early 2014, JD1 met defendant online and they began exchanging messages. They met in person about a year later. Shortly thereafter, she
Defendant was good with computers and came up with a plan in early 2015 to make money and travel by having JD1 engage in sex for money. As part of the arrangement, he took pictures of her, designed and posted advertisements for her on the Internet (e.g., Backpage.com), established the prices she charged for specific sexual acts, negotiated the “meet up” or “dates”3 (which largely took place in hotel rooms), booked hotels for her, drove her around as necessary, and protected her. In return, she agreed to split her earnings with him equally.
Defendant set up dates for JD1 in Seattle and various cities in the Sacramento area, the San Francisco Bay Area, the Central Valley, and Southern California. During the dates, he would wait outside the hotel or somewhere nearby.
Defendant used fear and violence to dominate and control JD1. Following the birth of their daughter in December 2015, JD1‘s relationship with defendant changed for the worse. He became controlling and violent. He dictated when and where she would engage in prostitution activities and forced her to work all day, including shortly after giving birth. He decided where she lived and when she could see her daughter. He had sex with her against her will and occasionally beat her before they had sex. He also beat her if she failed to follow his directions or if she expressed her opinion. The beatings occurred frequently, about “every other day.” On a few occasions, the beatings were “very bad, very, very bad.”
JD1 attempted to end her relationship with defendant several times. However, he would eventually find her and “bad things would happen,” including an incident where he beat her and hit their daughter. In addition to his violent and controlling behavior, defendant decided to take a larger share of JD1‘s earnings. He took her bank card and withdrew money from her account without her permission to pay for his personal expenses and expenses related to other women with whom he was working. When she complained abоut how he was handling her earnings, he beat her.
JD1 worked with defendant until he was arrested in March 2017. During the time period she worked with defendant, he also worked with JD2, JD3, JD5, JD6, JD7, JD8, JD9, JD10, and JD11. Although JD1 never worked with
The Sting Operation
On March 16, 2017, detectives from the El Dorado County Sheriff‘s Department conducted an undercover human trafficking sting operation at the Best Western Motel in Placerville. After researching various Web sites, an undercover investigator set up a date with JD1 at the motel.
At 8:45 p.m., defendant dropped JD1 off at the motel. After she and the undercover investigator agreed on the sex act to be performed and she received the negotiated sum of $300, officers entered the room and detained her. Meanwhile, officers approached defendant‘s car and detained him. A search of his person revealed the following items: approximately $2,000 in cash, two cell phones (hereafter, HTC cell phone & ZTE cell phone), some currency from the Philippines, a credit card, a bank deposit receipt in the amount of $1,100, and a receipt from a 7-Eleven store in Seattle.
JD2‘s and JD3‘s Testimony
JD2‘s and JD3‘s testimony was similar to and consistent with JD1‘s testimony.4 They both began working with defendant, who referred to himself as “Pharaoh” the tech/computer savvy personal assistant, after he promised to provide them Internet advertising services in exchange for a share of their earnings from prostitution activities. He gave them “professional” names and linked their phone numbers to his Google Voice account, which allowed him to monitor their communications and to communicate with clients on their behalf. He placed advertisements for them online (e.g., Backpage.com), set up their dates with clients, established the prices they charged for specific sex acts, booked their hotel rooms, drove them to meet clients, and waited nearby during their dates. He also provided JD2 with condoms and lubrication, and supplied some of the women with drugs.
Defendant was physically and verbally abusive to JD2. While he did not physically abuse JD3, he threatened her with physical violence and verbally abused her. He was also controlling over JD2 and JD3 and frequently angry. He demanded that the women he worked with stay in their hotel rooms all day; they were allowed to leave only with his permission. He decided how many dates the women would go on and attempted to make JD3 engage in
During the time period JD2 worked with defendant, he also worked with JD1, JD3, JD5, JD6, JD8, JD9 and JD11. At times, JD2 worked with JD1, JD3, and JD5. She
explained that she occasionally shared a room with these women,5 and that the “work” the women engaged in was exchanging sex for money. According to JD2, defendant treated JD1 better than the other women he worked with and seemed to care about her more and was more controlling over her. When asked, JD2 said that she saw defendant provide JD1 with condoms and lubrication.
During the time period JD3 worked with defendant, he also worked with JD1, JD2, JD6, JD8, and JD11. JD3 estimated that approximately 10 different women worked with defendant from the summer of 2016 to early 2017. When asked, JD3 indicated that the “work” the women engaged in was exchanging sex for money. She noted that she shared a room with JD1, JD6, JD8, and JD11.
After defendant was arrested, he called JD2 from jail and asked her to change the passwords to some of his accounts, including his Hotels.com account and his “pinknjuicy” and “yunggoon” e-mail accounts. He explained that she needed to do this because he “got caught human trafficking.” He also told her not to talk to the police.
Police Contact in Galt
Around 12:15 a.m. оn August 17, 2016, a Galt police officer found defendant asleep in his car, which was parked in a city parking lot. A search of the car revealed the following items: a large quantity of condoms, vaginal fungus cream, female hygiene products and toiletries, a bottle of Extenze pills (a male sex enhancement supplement), a piece of paper containing a list of e-mail addresses and passwords (one of which had JD5‘s name next to it), a laptop computer, and multiple motel keys and digital cameras. When the officer opened the laptop, he observed an e-mail account with a “bunch” of e-mails, one of which was asking about availability and prices for different sex acts. The laptop also contained numerous photos of women wearing lingerie or very little clothing.
Electronic Evidence
Following defendant‘s arrest, the police monitored his jails calls. During one of those calls, he asked a woman to change the passwords to his Backpage.com account and his nottierose@gmail.com e-mail account. In doing so, he revealed the passwords to those accounts. Thereafter, a search warrant was obtained for several e-mail accounts associated with defendant: nottierose@gmail.com, zaemai@gmail.com, pinknjuicyqueens@gmail.com, and yunggoon.blogspot@gmail.com. The search yielded a large data file, which included folders for each of the women involved in this case, i.e., JD1 through JD12. Inside the folders were pictures of the women, some of which showed them posed in provocative positions. The women were partially nude or barely clothed in the pictures. The data file also contained a photograph of defendant and photographs of many of the women involved in this case in a file named “PinknJuicy Logo Designs.”
A search warrant was also obtained for information frоm Hotels.com related to defendant‘s zaemai@gmail.com e-mail address. The information obtained from the execution of this warrant showed that between December 1, 2015, and March 15, 2017, this e-mail address was used in 432 hotel reservations with Hotels.com. The hotels were located in Seattle, and in various locations throughout the San Francisco Bay Area, the Sacramento area, Yuba City, the Central Valley, and Southern California. The reservations were made under the names of defendant, JD1, JD2, JD3, JD7, JD8, JD9, JD10, and JD11.
A search warrant was also obtained for documents from Backpage.com related to phone numbers and an e-mail address (pinknjuicyqueens@gmail.com) associated with defendant. In response to the warrant, Backpage.com provided law enforcement over 1,000 portable document format (PDF) files, all of which referenced the user name
nottierose@gmail.com. The search revealed the following: From May 23, 2015, to March 15, 2017, there were 241 posts for JD1. From October 16, 2016, to March 16, 2017, there were 249 posts for JD2. From April 11, 2016, to November 14, 2016, there were 74 posts for JD3. From January 31, 2016, to February 22, 2016, there were two posts for JD4.6 From August 9, 2016, to February 2, 2017, there were 38 posts for JD5. From April 11, 2016, to November 12, 2016, there were 20 posts for JD6. From May 31, 2016, to September 16, 2016, there were 28 posts for JD7. From November 5, 2015, to December 18, 2016, there were 76 posts for
The posts (i.e., advertisements) included barely clothed images of the women posed in provocative positions. Some of the images contained nudity.
Cell Phone Evidence
A search of defendant‘s HTC cell phone disclosed that he had logged into the Backpage.com account with the user name nottierose@gmail.com on multiple occasions on the day he was arrested. The data on the phone also showed that he had user accounts for various Web sites, including Backpage.com, Hotels.com, and Reddit.com. The phone also had Google Voice service, which was associated with the nottierose@gmail.com e-mail address.
The HTC cell phone contained numerous e-mails from Backpage.com and Google Voice that were sent to the nottierose@gmail.com e-mail address. In some of the e-mails from Backpage.com, defendant‘s name was printed underneath the
nottierose@gmail.com e-mail address. The HTC cell phone contained a list of 1,243 contacts, including zaemai@gmail.com, ladydianatheprincess@gmail.com, pinknjuicyqueens@gmail.com, nottierose@gmail.com, and yunggoon.blogspot@gmail.com. The contact profile for the zaemai@gmail.com e-mail account referenced defendant‘s ZTE cell phone number. The contact profile for defendant referenced the nottierose@gmail.com e-mail account.
A search of defendant‘s ZTE cell phone disclosed files with folders for some of the women involved in this case. The phone also had various applications (or “apps“) on it, including apps for Hotels.com and Google Voice, and contained nearly 13,000 e-mails from Backpage.com indicating that advertisements had been renewed or moved to the top of the list. The e-mails were sent to the nottierose@gmail.com e-mail address, which was associated with defendant‘s name in the phone‘s contact list. In some of the e-mails from Backpage.com, defendant‘s name was in the body of the e-mail.
The ZTE cell phone also contained various other prostitution-related information (e.g., information related to Backpage.com advertisements) as well as images and/or messages involving JD1 through JD11 and Rade. There was also information related to JD1‘s and JD2‘s bank cards.
The HTC cell phone and ZTE cell phone both contained text message exchanges between JD1 and defendant. In one text messagе, JD1 indicated
Reddit.com
Based on recorded jail conversations involving defendant, a warrant was obtained to search an online discussion blog, Reddit.com, for posts and comments by a user named “Zaemai” on the board “PimpFeet.” The name Zaemai was associated with a photograph of defendant found on one of his cell phones.
The search revealed that in March 2015, August 2015, and May 2016, the user named Zaemai posted comments on the board PimpFeet. In the March 2015 post, Zaemai stated that he was “new to pimping” and asked for advice on how to “better advertise for more upscale clients.” He wrote, “I have one ho right now from Eastern Europe who is about 30. We are in Nor Cal, about an hour and a half from Frisco, and making less than $500 a day online. I told her we are not leaving town until she makes 1K per day for 10 straight days. I am trying to figure out how to better advertise for more upscale clients. Can you all help? If I can figure that out, I may even be able to get a couple more hos added to my stable.” In response to advice he received, he stated, “We are in Nor Cal, not far from Cow Town. We don‘t dance at clubs or hang out in hotels. She wants to move to a better apartment. As soon as we can figure out how to obtain some better clients, high-class independent escorts is my vision.”
In the August 2015 post, the user named Zaemai commented on a post titled, “Knocking Independent Hos.” He indicated that he had a woman that was “turning five tricks a day from Backpage” but complained that she had no high-end clients, no сar, and a “shitty home.” He wrote, “She has been independent for two years because the last P told her a bunch of shit and nothing happened. I like her because she‘s not on drugs and she stays in the room all day for a measly $300. I‘m trying to get some information on how to get her out of this situation.”
Later that same day, the user named Zaemai commented on a post titled, “Lacing Her With Game.” In his comment, he offered advice on how to avoid the police, advising that, “One way to avoid the police is to teach her not to
the telephone.” He also advised that pimps should “[c]heck [their] local forum and read what independent providers are saying,” explaining: “This site is more about clothes and cars pimps should try to catch bitches with as well as for passing on catch phrases and lingo to impress bitches. I‘ve never seen any discussions on screening, booking travel arrangements, encryption devices, and that sort of stuff pimps in 2015 should be aware of. There are few pimps who are aware human trafficking is a charge a lot of young brothers are being dealt. Nobody wants to talk about that issue because it‘s boring. I‘m not a pimp, I‘m here for the entertainment.”
In the May 2016 post, the user named Zaemai indicated that he was working with several prostitutes but complained about the price of hotel rooms and asked for help in how to secure a private residence, explaining that: “The challenge is I only want to stay a couple of months and I may have to stack two to three chickens in the same place and the traffic and headaches are sure to increase.” He later posted several comments about pimping, including: “Being a pimp is about finding what a bitch lacks in her life and meeting that need for her. Identify the needs of a bitch and fulfill them, then use that to your advantage and that‘s the day you‘ll be a pimp.” He also said, “When pimping crosses real life, many of y‘all don‘t know where to go. . . . If a bitch want to raise my seed, she married to game for life. I ain‘t changing for nо ho bitch. The heart of a pimp is a cold thing. . . . A bitch with kid just received a ball and chain with no key. That bitch has checkmated every time. She can‘t go nowhere, but back to me. I‘m not a pimp, I‘m here for the entertainment.” In another comment, he said, “I do know pimps are supposed to get bitches to fall in love with them and trust them. There are no rules to getting another person to fall in love. A pimp has gotta do what path a pimp is to do to build his stable. . . . I ain‘t no pimp, I am here for the entertainment. Your pimp.”
Defendant‘s Testimony
Defendant testified on his own behalf at trial. He confirmed that he began texting with JD1 around early 2014, and that they exchanged messages for about a year before
they met in person. At that time, he was living in Sacramento. Defendant explained that he started exchanging messages with JD1 after he saw her advertisement on MyRedBook.com. He claimed that he wanted to date her and that he did not know the Web site was commonly used to advertise prostitution services.7
Defendant explained that he primarily used JD1‘s premium Backpage.com account, nottierose@gmail.com, for his postings on that Web site. He posted an advertisement for himself, offering his services as an assistant in various services, including marketing, creating profiles and Web pages, making travel arrangements, and screening clients. He acknowledged that he also posted advertisements for some of the women involved in this case. However, he claimed that the advertisements were not for prostitution activities. Rather, the advertisements he posted were for services that did not involve sexual acts (e.g., modeling, dancing, massages, body blotting). He insisted that he never encouraged the women to engage in prostitution activities with clients and claimed that he did not know exactly what the women did with clients. He also claimed that he did not use any nudity in his postings and did not advertise any services for money, although he bragged about his skill in posting advertisements and said that every
person he posted for told him they made more money with his advertisements.8 According to defendant, the women he worked with had access to their advertisements, had seen them, and could delete them if they wanted to. He noted that JD1, JD5, JD8, JD9, and JD11 posted online advertisements for themselves and other women using JD1‘s Backpage.com account.
As for JD1, defendant explained that she was experienced in the “industry,” and that she dated other men while they dated. She told him what cities they should travel to and where they should stay. He claimed that she worked with other men who posted advertisements for her, and that he did not care that she worked with these men. When asked, he said that he never forced her to travel without their daughter.
As for JD2, defendant explained that they agreed to start a business relationship after she responded to his Backpage.com advertisement. He claimed that their business relationship did not involve him arranging for her to have sex with other men in exchange for money. Rather, he agreed to fix
As for JD3, defendant explained that he met her in March 2016 through one of her friends who was already working with him—JD6. Thereafter, they entered into a similar business relationship that he had with JD2, except that he estimated JD3‘s expenses would be about 30 percent of her earnings because she was only 18 years old and needed to share a hotel room with other women for safety reasons.
As for JD4 through JD12, defendant admitted that he posted advertisements for JD5, JD8, JD9, and JD12, but denied or did not remember posting advertisements for JD4, JD6, JD10, and JD11.10 He claimed that he was not the primary person who responded to clients asking for services from the women he worked with. Rather, he only replied and communicated with clients if the women asked him to, or when he first started working with them. He further explained that all of the women who worked with him shared a hotel room at some point, and that he did not force them to do anything. He noted that his financial arrangement with each woman was different; the amount they paid him depended on their expenses. According to defendant, the women did not work for him but rather he worked with them. He was just their assistant.
Defendant denied beating any of the women involved in this case but admitted to smacking JD1‘s head once and “popp[ing]” her in the face once. He also admitted that he hit his daughter once, and that he pushed JD2 one time and sent text messages to JD1, JD2, and JD3 threatening to hit them. He explained that he threatened to beat JD2 because she was texting while on a date with a client. He further explained that he threatened to beat JD1 because she texted negative things all day and called him a “stupid, dumb nigger.”
Defendant admitted that he linked JD1‘s, JD2‘s, and JD3‘s phone numbers to his Google Voice account but claimed that he did not set up dates for them
explaining that he only responded to messages from clients when the women requested his assistance. He maintained that he did not provide condoms or drugs to any of the women who worked with him. When asked about the numerous condoms fоund in his car by the Galt police officer, he claimed the condoms belonged to him, explaining that he had many girlfriends.
Although he was aware that the owner of Backpage.com was arrested on prostitution charges, defendant admitted that he continued to post advertisements on that Web site. He also admitted that he observed men come to the hotel rooms occupied by the women in this case and stay for a short period of time, and that he collected money from the women to pay for online advertising and other costs associated with their working relationship. However, he insisted that he did not know exactly what the women did for the money they received. He made this claim after he was confronted with evidence of two text messages he sent to JD1, which said: “You need your ass kicked because it‘s wrong to have the baby in front of a client having sex,” and “You‘re looking for a guy that follows you around while you fuck whoever, but want some for money and others don‘t have to pay.” Defendant did not deny sending these messages. Instead, he explained that the messages were meant to be hurtful.
Defendant denied posting any comments to the PimpFeet board on Redditt.com, explaining that the e-mail account associated with the postings (zaemai@gmail.com.) was a “group account” accessible by several other people and that one of those people must have made the postings.
Procedural History
In June 2018, an amended information was filed in the El Dorado County Superior Court charging defendant with 18 counts: human trafficking (
in Santa Clara County and involved JD12. The remaining counts were all alleged to have occurred in Sacramento County and involved JD2 (counts 4, 5, & 6), JD3 (counts 7, 8, & 9), JD4 (count 10), JD5 (count 11), JD6 (count 12), JD7 (count 13), JD8 (count 14), JD9 (count 15), JD10 (count 16), and JD 11 (count 17).
Following a jury trial, defendant was found guilty on counts 2, 3, 5, 6, and 8 through 17 (i.e., 11 counts of pandering involving JD1 through JD11 & three counts of pimping involving JD1, JD2, & JD3). He was found not guilty on counts 1, 4, 7 (i.e., the human trafficking counts involving JD1,
Defendant filed a timely notice of appeal.
DISCUSSION
1.0 Improper Venue
As noted, this case was prosecuted in El Dorado County. The amended information alleged that counts 1 through 3 occurred in El Dorado County and counts 4 through 17 occurred in Sacramento County. According to the People, jurisdiction was proper in El Dorado County as to counts 4 through 17 pursuant to
evidence showing that the Sacramento County District Attorney‘s Office agreed to the prosecution of the offenses in El Dorado County.12 We disagree.
1.1 Applicable Legal Principles
Determining the proper venue presents an issue of law to be decided prior to trial. (People v. Posey (2004) 32 Cal.4th 193, 201.) Accordingly, we apply the de novo standard of review. (People v. Galvan (2008) 168 Cal.App.4th 846, 852.)
“Traditionally, venue in a criminal proceeding has been set, as a general matter, in the county or judicial district in which the crime was committed. Under the provisions of . . .
Nevertheless, “[a]lthough under
under appropriate circumstances. (Id. at p. 1097 [explaining that “venue statutes do not involve a court‘s jurisdiction in the fundamental sense of subject matter jurisdiction“]).13
“A defendant‘s right to be tried in a venue authorized by statute is a right subject to waiver by the defendant.” (People v. Aleem (2006) 144 Cal.App.4th 1155, 1160, fn. 9, citing Simon, supra, 25 Cal.4th at p. 1097.) In Simon, our Supreme Court stated, “[T]aking into account the nature and purpose of the venue safeguard and the substantial state interest in protecting the integrity of the process from improper ‘sandbagging’ by a defendant, we conclude that a defendant who fails to raise a timely objection to venue in a felony proceeding forfeits the right to object to venue—either at trial or on appeal.” (Simon, at p. 1104.)
The amended information charged defendant with human trafficking (
Having reviewed the relevant “jurisdiction” letters submitted to the trial court, we conclude the record contains sufficient written evidence demonstrating that the district attorney in the county with jurisdiction over the offenses alleged in counts 10 through 17 agreed to venue in El Dorado County. A fair reading of the record does not support defendant‘s contention that the Sacramento County District Attorney did not agree that venue was proper in El Dorado County with respect to these offenses. The record reflects that an amended complaint adding counts 10 through 17 was filed in March 2018. These counts alleged pandering in Sacramento County involving JD4 through JD11. Eight days after the amended complaint was filed, the Sacramento County District Attorney‘s Office sent a letter (i.e., the “third” letter) to the El Dorado County District Attorney‘s Office agreeing to venue in El Dorado County for these offenses. The fact that the letter refers to the prosecution of defendant for “Human Trafficking charges” and does not specifically mention pandering is not a basis to reverse defendant‘s convictions on counts 10 through 17 for improper venue. The letter makes clear that the Sacramento County District Attorney‘s Office agreed to the prosecution of defendant in El Dorado County for the offenses alleged in counts 10 through 17. The letter indicates that the Sacramento County District Attorney‘s Office was aware that, during the course of the investigation
of defendant for human trafficking, “it was determined that . . . several of the victims suffered similar conduct by . . . defendant in Sacramento.”14 (Italics added.) The letter goes on to
On this record, we cannot conclude that reversal is required due to improper venue. Defendant provides no authority and legal analysis compelling a contrary conclusion. Nor has he explained the purpose of the third letter written by the Sacramento County District Attorney‘s Office. As noted, defendant concedes that the two earlier letters written by the same office showed that the Sacramento County District
Attorney agreed to venue in El Dorado County for counts 4 through 9. In view of the timing and content of the third letter, it is evident that its purpose was to provide consent to the prosecution of counts 10 through 17 in El Dorado County.
2.0 Sufficiency of the Evidence
Defendant contends his convictions on counts 10 through 17 must be reversed because substantial evidence does not support the conclusion that he was guilty of pandering involving JD4 through JD11. He argues there was insufficient evidence to establish that he “affirmatively influenced” any of these women to “become a prostitute or continue in prostitution.” We disagree.
2.1 Standard of Review
” ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] We determine ‘whether, after viewing the evidence in the
” ‘The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence . . . . [Citation.] “[I]f the circumstances reasonably justify the jury‘s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or reevaluate a witness‘s credibility.’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1215.)The jury is entitled to draw reasonable inferences based on the evidence (People v. Livingston (2012) 53 Cal.4th 1145, 1166), and we must accept all logical inferences the jury might have drawn from the evidence, even if we would have concluded otherwise (People v. Salazar (2016) 63 Cal.4th 214, 242). ” ‘Although it is the jury‘s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant‘s guilt beyond a reasonable doubt. [Citation.]’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury‘s verdict.” (Id. at p. 357.)
2.2 Applicable Legal Principles
Pandering is “the business of recruiting a prostitute, finding a place of business for a prostitute, or soliciting customers for a prostitute.” (People v. Dixon (2011) 191 Cal.App.4th 1154, 1159-1160.) A panderer is “one ’ “who procures the gratification of the passion of lewdness for another.” ’ ” (Id. at p. 1156.)
The crime of “pandering comprises a broad range of conduct. [¶] The purpose of . . . section 266i is to ’ “. . . cover all the various ramifications of the social evil of pandering and include them all in the definition of the crime” . . . . ’ ” (People v. DeLoach (1989) 207 Cal.App.3d 323, 333.) In enacting section 266i the Legislature sought to “prevent prostitution ‘by discouraging persons other than the prostitute from augmenting and expanding a prostitute‘s operation, or increasing the supply of
Subdivision (a) of section 266i has six subparts that ” ‘define the different circumstances under which the crime of pandering may be committed.’ ” (People v. Leonard (2014) 228 Cal.App.4th 465, 490 (Leonard).) The commission of any one of the acts described in subdivision (a) constitutes the offense of pandering. (People v. Charles (1963) 218 Cal.App.2d 812, 816People v. Montgomery (1941) 47 Cal.App.2d 1, 12, 24, 27-28 (Montgomery), disapproved on another ground in Murgia v. Municipal Court for Bakersfield Judicial Dist. (1975) 15 Cal.3d 286, 301, fn. 11, People v. Dillon (1983) 34 Cal.3d 441, 454, fn. 2, & Zambia, supra, 51 Cal.4th at p. 981; see also People v. Lax (1971) 20 Cal.App.3d 481, 486.) The relevant subparts of subdivision (a) here are (1), (2), and (5).16
The crime of pandering requires no monetary gain. (
2.3 Analysis
Viewing the evidence in the light mоst favorable to the judgment, we conclude there was sufficient evidence from which a reasonable jury could have concluded defendant was guilty on counts 10 through 17, which charged him with pandering involving JD4 through JD11.
At the outset, we pause to note that defendant does not challenge the sufficiency of the evidence with respect to his pandering convictions involving JD1, JD2, or JD3. And with good reason. As set forth above, those witnesses testified in detail about how defendant assisted and encouraged
Collectively, the testimony of JD1, JD2, and JD3 showed that defendant worked with JD4 through JD11, and that the “work” the women engaged in was prostitution activities. There was also evidence that defendant knowingly assisted and encouraged JD4 through JD11 to engage in such activities. Among other things, the evidence showed that he posted online advertisements for each of these women to perform “services,” which contained images of them barely clothed and posed in provocative positions. Some of the images contained nudity. The evidence also showed that defendant booked hotel rooms for JD5 and JD7 through JD11. In addition, there was evidence—the postings on Reddit.com—from which a reasonable jury could have concluded that defendant admitted to being a pimp who assisted and еncouraged the women he worked with to engage in prostitution activities. When defendant testified, he admitted that he posted advertisements for some of the nontestifying Jane Does, including posting advertisements on Backpage.com, which was a Web site commonly used to advertise for prostitution activities.
In view of the record, we conclude substantial evidence supports the pandering convictions on counts 10 through 17 involving JD4 through JD11. A reasonable jury could have found the essential elements of the crime as to each woman beyond a reasonable doubt. The evidence established that defendant was in the business of recruiting prostitutes, finding a place of business for them (hotels), and solicitingcustomers for them. Substantial evidence supports the jury‘s conclusion that JD4 through JD11 were part of that business.
Contrary to defendant‘s contention, reversal is not required because there was no evidence that certain Jane Does actually engaged in an act of prostitution. The crime of pandering does not require that actual acts of prostitution take place. (People v. Osuna (1967) 251 Cal.App.2d 528, 531.)
Finally, we reject defendant‘s contention that the evidence was insufficient to convict him of pandering by procuring because the evidence only showed
3.0 Constitutional Challenge to the Pandering Statute
Defendant contends that
3.1 Applicable Legal Principles
“The constitutional interest implicated in questions of statutory vagueness is that no person be deprived of ‘life, liberty, or property without due process of law,’ as assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in this context requires two elements: a criminal statute must ’ “be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.” ’ ” (Williams v. Garcetti (1993) 5 Cal.4th 561, 567; see People v. Maciel (2003) 113 Cal.App.4th 679, 683 [” ’ “[A] penal statute [must] define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” ’ “].)
” ‘Although the [void-for-vagueness] doctrine focuses both on actual notice to citizens and arbitrary enforcement, . . . the more important aspect of the vagueness doctrine “is not actual notice, but the other principal element of the doctrine—the requirement that a lеgislature establish minimal guidelines to govern law enforcement.” [Citation.] Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” ’ ” (People v. Brown (2017) 14 Cal.App.5th 320, 336.)
” ’ “[T]he starting point of our analysis is ‘the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. . . .” ’ [Citation.]” [Citation.]’ ” (People v. Sullivan (2007) 151 Cal.App.4th 524, 543.) ” ‘The fact that a
” ’ “A statute . . . cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.” ’ [Citation.] Therefore, ‘a party must do more than identify some instances in which the application of the statute may be uncertain or ambiguous; he must demonstrate that “the law is impermissibly vague in all of its applications.” . . . [Citation.]’ [Citation.]” (People v. Morgan (2007) 42 Cal.4th 593, 605-606People v. Ervin (1997) 53 Cal.App.4th 1323, 1328-1329 [rejecting vagueness challenge as to ” ‘immediately after’ ” and ” ‘in the vicinity’ ” in statute punishing robberies taking place while the victim is using an ATM “or immediately after the person has used an [ATM] and is in the vicinity of the [ATM]“].) ” ’ [A] statute will not be held void for vagueness at the behest of a defendant whose conduct falls clearly within its bounds. [Citation.]’ ” (Ibid.)
“[I]n determining whether the relevant language of [the statute] is sufficiently certain to meet the constitutional requirement of fair notice, ‘we look first to the language of the statute, then to its legislative history, and finally to the California decisions construing the statutory language.’ ” (People v. Heitzman (1994) 9 Cal.4th 189, 200.)
3.2 Analysis
We conclude that defendant‘s constitutional challenge to the pandering statute is without merit. A similar challenge was rejected nearly 45 years ago in People v. Hashimoto (1976) 54 Cal.App.3d 862 (Hashimoto). In that case, the appellate court explained that section 266i is “designed to discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitute‘s operation,or increasing the supply of available prostitutes.” (Hashimoto, at p. 867.) The court concluded that the language of section 266i is not vague, reasoning: “It is not reasonably susceptible of being interpreted to cover any activity beyond that involved in the social evil of pandering. [Citation.] The terms ‘procuring, persuading and encouraging’ are all words capable of precise definition.
The fact that section 266i does not define the term “procure” does not render the statute unconstitutionally vague. The language of the statute is sufficiently clear and settled to provide fair notice of the proscribed conduct. Indeed, long-standing case law in effect at the time of defendant‘s offenses provided adequate guidance as to what the term “procure” means in the context of pandering. Since 1941, case law has construed the term to mean assisting, inducing, persuading or encouraging a person to engage in prostitution. (Montgomery, supra, 47 Cal.App.2d at p. 12.) Such a construction is consistent with the purpose and intent of the pandering statute, which our Supreme Court has explained is to criminalize the knowing and purposeful conduct of any person seeking to persuade, encourage, or otherwise influence the target to become a prostitute. (Zambia, supra, 51 Cal.4th at p. 980.) In concluding that the six subparts of subdivision (a) of section 266i apply to any victim, regardless of whether that victim is already acting as a prostitute, the Zambia court explained, “The plain intent and purpose behind all the provisions of section 266i, taken together, is to deter pimps or others from establishing new working relationships in the unlawful prostitution trade. Our appellate courts have long recоgnized that California‘s pandering statute ’ “cover[s] all the various ramifications of the social evil of pandering and include[s] them all in the definition of the crime, with a view of effectively combating the evil sought to be condemned.” ’ ” (Zambia, at p. 978section 266i, subdivision (a)(1) at the time of his offenses.
We recognize that the Bench Notes to the pattern instruction for the crime of pandering (CALCRIM No. 1151) explain that the term “persuade” was included as an option in element one where, as here,
4.0 Alleged Instructional Errors
4.1 Standard of Review
“In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury‘s understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.) A claim of instructional error is reviewed de novo. (People v. Cole (2004) 33 Cal.4th1158, 1210.) An appellate court independently reviews the wording of a jury instruction and assesses whether the instruction accurately states the law. (People v. Posey, supra, 32 Cal.4th at p. 218.) When making this determination, we consider the instructions taken as a whole; we also presume jurors are intelligent people capable of understanding and correlating all jury instructions and applying them to the facts of the case. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground by People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Smith (2008) 168 Cal.App.4th 7, 13.)
The Watson22 standard of prejudice (i.e., the error is reversible when there is a reasonable probability defendant would have obtained a more favorable result in the absence of the error) applies to an instruction that misdirects the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions. In contrast, the Chapman23 standard of review (i.e., error is harmless only when it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained) applies when an instruсtion improperly describes or omits an element of the offense. (People v. Larsen (2012) 205 Cal.App.4th 810, 829-830.)
4.2.1 Additional Background
At the close of trial, the jury was instructed orally and in writing on the crime of pandering in accordance with CALCRIM No. 1151. The trial court instructed the jury as follows:
“The defendant is charged in Count [3, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17], and [18] with pandering, in violation of
Penal Code Section 266i .“To prove that the defendant is guilty of pandering, the People must prove that:
“1. The defendant successfully persuaded/procured a Jane Doe to become a prostitute, or the defendant used promises or any device or scheme to cause, persuade, encourage, induce a Jane Doe to become a prostitute, or the defendant used fraud or trickery to persuade/procure a Jane Doe . . . to be a prostitute; and,
“2. The defendant intended to influence a Jane Doe to be a prostitute.
“It does not matter whether a Jane Doe was a prostitute already.
“A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money. Pandering requires that an intended act of prostitution be with someone other than the defendant. A lewd act means physical contact of the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person‘s body for the purpose of sexual arousal or gratification.”
The trial court instructed the jury with the foregoing language after an extended discussion with counsel regarding the proposed instruction submitted by the prosecution. No objection or request for clarification or modification of this language was made by the defense.
4.2.2 Analysis
Defendant identifies two instructional errors regarding the CALCRIM No. 1151 instruction given to the jury in this case. First, he argues that the instruction eliminated an essential element of the crime of pandering. Second, he argues the instruction erroneously advised the jury that, “It does not matter whether a Jane Doe was a prostitute already.” We reject these contentions.
We reject defendant‘s initial contention that the CALCRIM No. 1151 instruction given to the jury eliminated an essential element of the crime of pandering because it allowed the jury to convict him of pandering based on a finding that he “persuaded/procured a Jane Doe to become a prostitute,” without the additional finding that he did so by promises, threats, violence, or by any device or scheme, as required by
As previously indicated,
The jury in this case was instructed on three alternative theories of pandering liability under
To the extent defendant‘s claim of error rests on the premise that the term “procure” as used in the pandering statute cannot be construed to mean “persuade” another person to become a prostitute, we find that it lacks merit. Again, we point out that longstanding case law has construed the term “procure” in the context of the pandering statute to mean assisting, inducing, persuading or encouraging a person to engage in prostitution. (Montgomery, supra, 47 Cal.App.2d at p. 12 [noting that the “alternatives recited in the statute are plainly not all mutually exclusive of each other“]; Schultz, supra, 238 Cal.App.2d at p. 812.) Such a construction is consistent with the purpose and intent of the pandering statute, which our Supreme Court has explained is to criminalize the knowing and purposeful conduct of any person seeking to persuade, encourage, or otherwise influence the target to become a prostitute. (Zambia, supra, 51 Cal.4th at p. 980; see id. at p. 973 [the statute is meant to ” ’ “cover all the various ramifications of the social evil of pandering and include them all in the definition of the crime” ’ “; the Legislature sought to “prevent prostitution ‘by discouraging persons other than the prostitute from augmenting and expanding a prostitute‘s operation, or increasing the supply of available prostitutes’ “].) Moreover, as noted, the Legislature‘s numerous amendments to the pandering statute since Montgomery and Schultz, without altering the judicial construction of the term “procure,” gives rise to the presumption that theLegislature has acquiesced in and ratified the judicial interpretation of the statute. (Zambia, at pp. 975-976.)
We also reject defendant‘s contention that the trial court erroneously instructed the jury with the following language of CALCRIM No. 1151: “It does not matter whether a Jane Doe was a prostitute already.” In Zambia, our Supreme Court concluded that each of the six subparts of
4.3 CALCRIM Nos. 316, 375, and 852
Defendant contends the trial court prejudicially erred in instructing the jury, pursuant to CALCRIM Nos. 316, 375, and 852, that evidence of his
4.3.1 Additional Background
The amended information charged defendant with three counts of human trafficking in violation of
In relevant part,
Prior to trial, the prosecutor filed a motion pursuant to
At the close of trial, the jury was instructed pursuant to CALCRIM No. 375 (Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc.)25 andCALCRIM No. 852 (Evidence of Uncharged Domestic
As previously indicated, the jury found defendant guilty on 11 counts of pandering involving JD1 through JD11 and three counts of pimping involving JD1, JD2, and JD3. He was found not guilty on the pandering count involving JD12 and the human trafficking counts involving JD1, JD2, and JD3.
4.3.2 Analysis
As a general rule, failure to object to an instruction forfeits the issue on appeal. (People v. Rivera (1984) 162 Cal.App.3d 141, 146.)
We agree with the People that defendant has forfeited his claim of instructional error by failing to object. At no point did defendant object in the trial court on the ground that the challenged instructions were improper because the prior uncharged acts of domestic violence did not amount to conduct involving moral turpitude, and therefore the acts could not be used in evaluating his credibility. Had defendant objected, the trial court could have made an explicit determination as to whether the prior uncharged acts could be considered by the jury to assess his credibility as a witness. That determination is a legal question that turns on whether the prior uncharged acts involved moral turpitude. (See People v. Wheeler (1992) 4 Cal.4th 284, 296-297; id. at p. 297, fn. 7 [a witness‘s prior conduct involving moral turpitude is admissible to impeach his or her credibility “whether or not it produced any conviction, felony or misdemeanor“]; People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1402 [domestic violence under
In any event, even assuming instructional error as defendant claims, we conclude the error did not result in a miscarriage of justice. Since defendant was acquitted on the human trafficking charges, we limit our prejudice inquiry to defendant‘s convictions for pimping and pandering. As relevant here, the jury was instructed that it could consider the prior uncharged acts of domestic violence if it found, by a preponderance of the evidence, that defendant committed those acts. Furthermore, the jury was told that it could, but was not required to, consider the uncharged acts evidence for the limited purpose of determining defendant‘s credibility as a witness. (CALCRIM Nos. 316, 375, 852.) The jury was further instructed that it alone must judge the credibility of witnesses using common sense and experience, (CALCRIM No. 226 [Witnesses]) and that defendant‘s commission of other misconduct (i.e., the prior uncharged acts of domestic violence) does not necessarily destroy or impair his credibility, and it was for the jury to decide the weight to be given to the evidence and whether it made defendant less believable. (CALCRIM No. 316.)
4.4 Alleged Failure to Instruct on Lesser Included Offenses
Defendant contends the trial court prejudicially erred in failing to instruct the jury on aiding and abetting prostitution, as a lesser included offense of pandering. Defendant further contends the trial court prejudicially erred in failing to instruct the jury on attempted pandering, as a lesser included offense of pandering. In support of his claims, defendant relies on the accusatory pleading test. We find no instructional error.
4.4.1 Applicable Legal Principles
“A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous
In determining whether a trial court must instruct on a lesser included offense, ” ‘a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]’ ” (People v. Smith (2013) 57 Cal.4th 232, 240.)
We review the trial court‘s failure to instruct on a lesser included offense de novo, considering the evidence in the light most favorable to the defendant. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) The erroneous failure to instruct sua sponte on a lesser included offense in a noncapital case is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome. In other words, we apply the Watson standard of prejudice. (People v. Breverman (1998) 19 Cal.4th 142, 165.)
4.4.2 Aiding and Abetting Prostitution
We conclude the trial court had no duty to sua sponte instruct the jury on aiding and abetting prostitution, as a lesser included offense of pandering. As
Defendant was charged with 12 counts of pandering by procuring in violation of
In connection with prohibiting prostitution as a form of disorderly conduct,
A person is liable as an aider and abettor when (1) with knowledge of the unlawful purpose of the perpetrator and (2) with the intent or purpose of committing, encouraging, or facilitating the commission of the crime, that person (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.)
Here, defendant has failed to demonstrate that he is guilty only of what he claims is a lesser offense of pandering. He has not shown how a reasonable jury could have concluded that the alleged lesser offense of aiding and abetting prostitution, but not the greater offense of pandering, was committed.
Generally, the court need not instruct on a lesser included offense when, as here, the defendant completely denies the charged offense, and no evidence reasonably supports the inference that the defendant committed only the lesser included offense. (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1019-1020.) Defendant testified that the online advertisements he posted for the women involved in this case were not for prostitution activities. Rather, the advertisements he posted were for services that did not involve sexual acts (e.g., modeling, dancing, massages). He insisted that he never encouraged the women to engage in prostitution activities with clients and claimed that he did not know exactly what the women did with clients for the money they received. He also claimed that he collected money from the women only to pay for online advertising and other costs associated with their working relationship. In other words, defendant claimed he had no knowledge that the Jane Does were engaging in prostitution activities and did not take a portion of their earnings from such activities. If the jury credited his version of events, it would have returned not guilty verdicts. An instruction on a lesser included offense is not required “when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime.” (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
4.4.3 Attempted Pandering
We also reject defendant‘s contention that the trial court erred by failing sua sponte to instruct the jury on attempted pandering, as a lesser included offense of pandering. As discussed, the prosecution‘s evidence, if believed, established completed acts of pandering. If the prosecution‘s witnesses were not believed, the resulting verdict would have been an acquittal. Based on the evidence presented, defendant was “either guilty of the crime charged or not guilty of any crime,” and no instruction on the lesser included attempt offenses was required. (People v. Barton, supra, 12 Cal.4th at p. 196, fn. 5.)
Contrary to defendant‘s contention, an instruction on attempted pandering was not required because there was no evidence the nontestifying Jane Dоes (i.e., JD4 through JD11) engaged in any act of prostitution. (People v. Osuna, supra, 251 Cal.App.2d at p. 531 [the crime of pandering does not require that actual acts of prostitution take place].) Nor was such an instruction required because JD4 was a fictitious or imaginary target. There was no substantial
5.0 Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective assistance by failing to object to certain testimony based on lack of foundation and hearsay. We disagree.
5.1 Applicable Legal Principles
” ‘In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel‘s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” [Citations.] Second, he must also show prejudice flowing from counsel‘s performance or lack thereof. [Citation.] Prejudice is shown when there is a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Citations.]’ ” (In re Harris (1993) 5 Cal.4th 813, 832-833.)