THE PEOPLE, Plaintiff and Respondent, v. PERRY TERRELL CLARK et al., Defendants and Appellants.
B305709
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 12/27/21
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. MA072529
James Koester, under appointment by the Court of Appeal, for Defendant and Appellant Perry Terrell Clark.
Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant Javionna Starlena Richmond.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
FACTS AND PROCEDURAL BACKGROUND
1. The four victims
a. Wendy S.
In 2014, when she was 14, Wendy ran away from her group home and started working as a commercial sex worker. In the spring of 2015, Wendy met Clark, whom she knew as “P.C.” Clark told Wendy “he had a girl working for him” and Wendy could make up to $1,500 a day.
Richmond, whom Wendy knew as “J.J.,” contacted her on Facebook or by text. Richmond was Clark’s “baby mother.” Richmond asked, “[O]h, can I pull up on you and we’ll smoke?” Wendy agreed. The next day, Wendy and her friend called Clark to pick them up. Clark picked her up, they “got drunk and . . . smoked,” and then Clark took her to Los Angeles “to go on the blade.”1
Wendy worked about 10 hours that night. Clark “felt like he needed more money.” He told Wendy, “[Y]ou’re not leaving. You have to stay and have to make more money.” This pattern continued. Sometimes Wendy took “pills just trying to stay up.” Wendy gave the money she made to Clark “immediately”; she kept none of it.
Richmond “was involved the whole time.” She created Wendy’s ads for Backpage and took calls from the tricks.3 The Backpage ads had Richmond’s phone number. Richmond was “on the phone getting us dates.” She also collected the money. Wendy never told Richmond no because—for example—if she didn’t give Richmond the money, Clark “was gonna do whatever it takes to take it from me.”
One time, Wendy told Clark she didn’t want to have any more dates. He laughed and told her to get out of the car. When she didn’t, he “lock[ed] the doors,” pulled her hair, and “hit[ ] [her] against the window in the car.” “And he told me that I was gonna work for him.” This type of thing was common; it happened “[w]henever he would be mad.”
If Wendy kept any of the money she got from dates, Clark beat her. Once Wendy got an extra $40 as a tip. She hid it in her dirty clothes. When Clark found it he “lift[ed her] up” from the bed and “threw” her. “[T]hen he started kicking [her] and stomping [her] when [she] was on the floor.” Clark called Wendy
Another time Wendy had $20 in her makeup pouch. Clark found it, took it, and beat her up.
Wendy worked out of motel rooms about 80% of the time. She was not allowed to leave the room without permission. If she tried to leave, she “got beat.”
Wendy worked for Clark and Richmond for 18 to 24 months. Eventually, Wendy felt Clark was “really, really making” her “catch a lot of dates,” so she called her uncle and cousin to pick her up.
A couple of months later Richmond messaged Wendy on Facebook. Richmond picked her up and drove to a McDonald’s. Clark walked up and got into the car. Richmond drove them to her (Richmond’s) house. Clark told Wendy, “ ‘You’re gonna work for me.’ ” Wendy said she was not going to work for him. Clark “snatched” her phone and broke it, then took her purse with her wallet in it. He “sock[ed]” her with a closed fist in the face, forehead, eye area, nose, and jaw 40 to 50 times. He also kicked her 10 to 15 times. Wendy was “dripping blood everywhere.” Even a year later, Richmond was still contacting Wendy about working for her and Clark.
b. Lauren R.
Detectives interviewed Lauren R. in the autumn of 2017. Lauren identified Clark and Richmond in photo six-packs. However, at trial, Lauren at first claimed not to remember anything beyond the fact that she had participated in commercial sex at the E-Z8 in Lancaster. She testified “P.C.” and “J.J.” had been at the E-Z8 with her, but initially she claimed not to recognize Clark or Richmond in the courtroom. After the prosecutor showed Lauren a transcript of her preliminary
Clark had been following Lauren in his car and she “confronted the car.” Lauren got into the car, and she and Clark had a conversation about “[m]aking money”; to her that meant “[p]rostitute.” “He said to make money with him” and he was going to take care of her. She was 16 at the time.
Lauren felt “very dazed, confused; out of it.” “It felt like something had been in [her] arm”; she believed Clark put a needle in her arm. Clark admitted he’d put something in Lauren’s arm but he never said what it was. Lauren “[woke] up” on the freeway, and Clark said they were going to Lancaster. Clark said Lauren “would try it out” and, once she’d made $10,000 for him, she could leave Lancaster if she wished.
Richmond got Lauren a room at the E-Z8 in Lancaster and took her to get some clothes and get her nails done. Lauren figured she was going to have to “prostitute” in exchange. Richmond took Lauren’s picture and posted ads; Lauren started “catching dates.” Lauren did both in-calls and out-calls. Richmond drove her to the out-calls.
Clark and Richmond determined how much Lauren would charge. She gave them all the money. Sometimes Clark punched Lauren in the stomach with a balled-up fist. She couldn’t remember why he hit her, but “it was usually, in [her] opinion, over money.” Clark asked Lauren for “a blow job a couple [of] times” and she felt she couldn’t say no. She couldn’t say no to Richmond either “[b]ecause they’re a team, and I’m working for both of them.” Lauren feared not doing what Richmond asked because “[s]he was like the shot caller.” “She arranged the dates,” took Lauren to out-calls, got her clothes. “[I]t seemed like she was . . . the one in control.”
c. Faythe S.
Faythe S. met Clark at a gas station in about 2015. She was 18. They exchanged information. About a week later they met up, hung out, and smoked. Clark explained he was a pimp, “he had hoes”; he told Faythe she could work for him. Faythe started working for Clark on Sepulveda, where there were “[h]oes, pimps, tricks.”
Richmond went to Sepulveda with Faythe four or five times. On Sepulveda, Faythe would have seven or “maybe more” dates in one night. Richmond also got Faythe rooms on Sepulveda and at the E-Z8 in Palmdale. Faythe’s Backpage ads had a contact email of queenjavey185@gmail.com and a telephone number of 323-900-9279. Those were not Faythe’s email or phone number.
In a 24-hour period, Faythe would have four dates for cash and ten or more using bitcoin. Clark gave her “crystal meth” so she could stay up. Richmond provided Faythe with condoms and got her clothes. Clark and Richmond set Faythe’s prices and she gave them the money. “I ha[d] to give it to them.” She never kept any for herself.
Sometimes, when Faythe “finished all the condoms” she’d been given, she could stop getting dates for that night. But other times Clark told her she had to keep working. She didn’t feel she could say no; Clark “was very angry” and would “curse [her] out”
Faythe saw how Clark treated Wendy: “He treated her bad.” He yelled at her. When asked, “[W]as it violent?” she responded, “Yes.”
When asked if she “could really stop working for” Clark and Richmond, Faythe answered, “Yeah.” When asked if she was allowed to come and go as she pleased, she again said, “Yeah.” Faythe testified she didn’t have a car but she could use Richmond’s and Clark’s car.
Faythe worked for Clark and Richmond for five or six months. In 2015 or 2016 she went to jail. Sometime later, Richmond texted her to see if she was “interested again.” Faythe told Richmond she was not.
On cross-examination Faythe testified Clark and Richmond didn’t “force[ ] [her] into being a commercial sex worker for them.” She said Clark never hit her.
d. Carly C.
On October 17, 2017, Santa Ana Police Department Detective James Marquez was working vice around 4:00 a.m. in an area that’s “the most famous track in Orange County.” Marquez saw a young woman—later identified as Carly C.—standing on a corner in the “track area of the city.” She was “paying attention to motorists passing by.” Marquez watched Carly for about 45 minutes and saw her “contact two separate vehicles . . . occupied by solo male drivers.”
Marquez spoke with Carly later at the police station. She was 17. He asked her if he could scroll through her cell phone and she agreed. Based on text messages on the phone, Marquez
In 2017 Detective Gary Furuyama was part of the sheriff’s department’s human trafficking task force. On October 30, 2017, he posed as a “commercial sex buyer” under the supervision of Detective Julia Levenson. Furuyama texted and called a number listed in a Backpage ad for a “hot Brazilian” in Lancaster. He was told the charge would be $60 for “[a] blow job and a handjob,” and he should go to room 225 at the E-Z8 motel.4
When Furuyama got to the top of the stairs leading to the room, he passed Richmond. She seemed to be coming from room 225. In the room, Furuyama met Carly, whom he recognized from her photo in the ad. Furuyama handed Carly cash in marked bills. She put the money in the nightstand and retrieved a condom from a suitcase. Furuyama gave a signal to other officers who then knocked loudly on the door, announcing it was law enforcement.
At trial, Carly testified she did not want to be a witness “at all.” She said, “I did everything on my own.” Carly testified she met Richmond through a friend in early 2017. They “were
Carly denied Richmond ever did anything to help her “catch dates”; Richmond didn’t take pictures of her for ads or post ads for her, nor did she ever drive Carly to the blade. Carly admitted she’d worked out of a room at an E-Z8 motel, but she denied Richmond or Clark ever rented that room.5 Carly said, “I would have a friend do it,” but when asked, “What friend?” she replied, “I don’t have any names.”
Carly denied she ever communicated with Clark “about anything commercial sex-related” or ever gave him any money. She testified she had no knowledge of Clark or Richmond being pimps.
2. The charges, trial, verdicts, and sentences
The People charged both defendants with two counts of human trafficking of a minor for a commercial sex act by force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury in violation of
Both defendants chose not to testify.
The court sentenced Richmond to 40 years and eight months to life in the state prison. Again, the court imposed indeterminate terms of 15 years to life on counts 1 and 4. On count 3 the court chose the midterm of eight years. On count 5 the court imposed one-third the midterm of two years eight months, to be served consecutively.
DISCUSSION
1. There was no instructional error on counts 1 and 4
Clark contends the trial court prejudicially erred when it instructed the jury that the sentencing factor of force, fear, or the like requires only general intent. Richmond joins in this argument.
a. The trial court instructs the jury with instructions counsel have agreed to and approved
As noted, the People charged defendants with two counts of violating
Toward the end of trial, the court again discussed jury instructions with counsel. The court noted it had given counsel
“[T]here are two separate ways to deal with the charges here. . . . [¶] You can either instruct as to (c)(2) and then give (c)(1) as a lesser instruction, or you can give a (c)(1) instruction and then give (c)(2) as a further allegation. [¶] I think the much cleaner way to go is to instruct first as to (c)(1) and then have the allegation as to (c)(2). It’s cleaner in the verdict form. It’s easier to understand, especially here where we have count 3, which is a separate count of (c)(1). [¶] Subdivision (c)(2) is only a sentencing provision. If it’s found that the violation of (c)(1) was under certain conditions, then it’s an enhanced sentence. So I set up the instruction that way, to give [CALJIC No.] 9.62.4 after [CALJIC No.] 9.62.3; meaning that’s the allegation applied to counts 1 and 4.”
The court then asked both defense attorneys, “Do you have any opposition to that?” Both replied, “No.” All counsel then confirmed they had no objection to any of the proposed instructions, nor were they requesting any additional instructions.8
The court instructed the jury with CALJIC No 9.62.3 on the elements of a
b. No authority supports defendants’ contention that the sentencing factor of force, fear, or the like requires specific intent
Clark asserts the court’s instruction on general intent for the “force or fear” allegation “relieved the prosecution of its burden of establishing a facilitative nexus between [Clark’s] application of the force or coercion and the specific intent to cause or otherwise persuade the minor to engage in the commercial sex transactions for [Clark’s] benefit.” It’s unclear what Clark means by this.
The court instructed the jury that, to prove trafficking in counts 1, 3, or 4, the People were required to prove that the defendant “cause[d], induce[d], or persuade[d], or attempt[ed] to cause, induce, or persuade” a minor “to engage in a commercial sex act, with the specific intent to effect or maintain a violation of section 266h,” pimping. (Italics added.) If, and only if, the jurors found the People had proved that, then they were to decide if the allegation that the crime “involved force, fear,” or the like was true or not true. (See CALJIC No. 9.62.4 [“If you find a defendant guilty of a violation of
Does Clark mean to argue the jury should have been instructed that the People had to prove he caused the victims to engage in commercial sex acts with the specific intent to pimp them, and then also to prove he used force, fear, or the like with the (same) specific intent to pimp the victims? But, again: when reaching and deciding the “force or fear” allegation, the jury already would have determined Clark acted with the requisite specific intent.
To the extent Clark contends a sentencing factor or enhancement must require specific intent when the underlying crime to which the allegation is attached requires specific intent, he is mistaken. For example, a defendant may be charged with robbery or criminal threats—both specific intent crimes (see CALCRIM Nos. 1600, 1300)—and with an allegation that he or she used or discharged a firearm, or inflicted great bodily injury, in the commission of the crime. Firearm allegations are general intent enhancements. (See People v. Wardell (2008) 162 Cal.App.4th 1484, 1493-1495 [firearm enhancements alleged for both robbery—a specific intent crime—and felony false imprisonment—a general intent crime].) The personal infliction of great body injury is as well (People v. Carter (1998) 60 Cal.App.4th 752, 755-756), and it may be alleged in connection with a specific intent offense. (See, e.g., People v. Wallace (1993) 14 Cal.App.4th 651, 663-665 [defendant convicted of both general and specific intent crimes]; cf. People v Brown (1985)
Clark concedes there’s no case recognizing the rule he urges us to adopt. Clark cites People v. Carrasco (2006) 137 Cal.App.4th 1050 (Carrasco). He misreads that case.
A jury convicted Carrasco of three robberies and found true allegations that he personally used and discharged a firearm in the commission of the crimes. Carrasco had come to a store where his former friend Dorado worked and demanded money. Dorado refused, and Carrasco left, but returned about an hour later, raising his hand in the shape of a gun outside the store. Carrasco then argued with a driver in the street outside and fired two shots toward the car as the driver left the parking lot. About 30 minutes later, Carrasco called Dorado and told him he was nearby and the bullet was meant for him. Two hours later, Carrasco returned and demanded Dorado give him money for beer. Dorado gave Carrasco $5. (Carrasco, supra, 137 Cal.App.4th at pp. 1054-1055.)
On appeal, Carrasco contended he hadn’t fired the gun “during the commission” of the robbery. (Carrasco, supra, 137 Cal.App.4th at pp. 1053, 1059.) The court rejected this contention, stating that when a defendant “ ‘ “deliberately shows a gun” ’ ” and there’s no evidence of “ ‘ “any purpose other than intimidating the victim,” ’ ” “ ‘ “the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure.” ’ ” (Id. at p. 1059.) The appellate court also rejected Carrasco’s argument that the trial court should’ve instructed the jury that the firearm enhancement required the same “concurrence of act” and specific intent as did the robbery. (Id. at pp. 1060-1061.) In short, Carrasco supports the prosecution’s position, not Clark’s.
2. Substantial evidence supports the jury’s verdicts that Richmond aided and abetted violations of section 236.1(c)(2) as to victims Wendy S. and Lauren R.
Richmond contends her conviction on counts 1 and 4 for trafficking of a minor involving force, fear, fraud, deceit, coercion,
As we have said, the court instructed the jury on the elements of trafficking a minor with CALJIC No. 9.62.3, which included the requirement of specific intent. The court also instructed the jury on aiding and abetting, using CALJIC Nos. 3.00, 3.01, 3.03, and 3.14. CALJIC No. 3.01 set forth the requisite specific intent as well as the requirement of knowledge. CALJIC No. 3.14 told the jurors that “[m]erely . . . assisting” or aiding without the required knowledge, intent, or purpose did not make one an accomplice.
Richmond cites no case that holds a jury must be separately instructed on aiding and abetting a sentencing factor or enhancement. (Cf. Carrasco, supra, 137 Cal.App.4th at pp. 1060-1061 [rejecting contention that court should have modified jury instruction on robbery by inserting “allegations” after the word “crimes”].) Counts 1 and 4 charged Richmond (and Clark) with violating
Richmond also contends she never beat the victims but “was instead beaten herself.” Wendy testified she had seen Clark “assault” and “beat up” Richmond. “[A] couple of times,” Wendy saw Clark “dragging [Richmond] by her hair.”
But Richmond chose not to testify. She never said Clark forced her to do anything. Her counsel never asked the court to instruct on a defense of duress (see CALCRIM No. 3402) nor, in any event, was there any evidence that, if she had not participated fully in the recruitment and management of the victims, her “life would [have been] in immediate danger.” (CALCRIM No. 3402.)
In closing argument, Richmond’s counsel suggested Clark was “actually running the show” but he conceded Richmond “was like the right-hand man [sic].” Counsel acknowledged Richmond and Clark had children together, and Richmond “operate[d] in
Low self-esteem does not constitute duress. Having examined the entire record in the light most favorable to the judgment of conviction, as we must (Guyton, supra, 20 Cal.App.5th at p. 506), we are satisfied substantial evidence supports the jury’s true finding on the sentencing factor for Richmond.
3. Substantial evidence supports defendants’ convictions on count 5
Both Clark and Richmond contend there was not substantial evidence that they deprived Faythe S. of, or violated, her personal liberty, as required for a violation of
The principles governing our assessment of a defendant’s challenge to the sufficiency of the evidence are well settled. We must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57.) We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. (Guyton, supra, 20 Cal.App.5th at p. 506People v. Wyatt (2010) 48 Cal.4th 776, 781;
Clark asserts “there was virtually no evidence that Faythe was ever compelled to work as a prostitute or that her personal liberty was in any way compromised through any coercive actions on either [Clark’s] or Richmond’s part.” Similarly, Richmond argues, “Faythe was already a sex worker when she met Clark, and agreed of her own free will to work for him.” Richmond says Faythe “was free to come and go whenever she pleased,” and she “had access to Clark’s car if she ever wanted to go somewhere.”
While Faythe had “had sex for money” before she met Clark when she was 18,
The use of the word “includes” suggests other means—in addition to those listed—can satisfy the statute. (See Oliver, supra, 54 Cal.App.5th at pp. 1096-1097.) “[T]he Legislature adopted a broader definition of deprivation of personal liberty for purposes of human trafficking” than that for false imprisonment. (Id. at p. 1096.) Human trafficking does not require that the deprivation of personal liberty—the confinement or restraint—is
When walking the blade, Faythe had seven or “maybe more” “dates” a night. At the E-Z8—where Richmond rented a room for her—she had 14 or more “dates” in a 24-hour period (some for cash and some for bitcoin). Faythe gave Clark and Richmond all the money she made; she never kept any for herself.
If Faythe “finished all the condoms” Richmond had given her, she might be able to stop for the night. But other times Clark told her she had to keep working. Clark made her work even after she was raped. She didn’t feel she could say no; a “very angry” Clark would yell and “curse [her] out.” She feared Clark would get violent. Clark gave Faythe methamphetamine so she could stay up.
While Faythe testified Clark had never hit her, Wendy testified about a time Faythe “didn’t want to work no more, and she was tired.” “[S]he didn’t want to work, or . . . she wanted something.” Clark “got mad that he had to buy her something, or that she had to go to sleep.” “He took her to the car.” When Faythe returned, she had injuries that gave Wendy reason to believe she’d been beaten up.
While the evidence at trial, taken as a whole, might “reasonably be reconciled” with a not guilty finding, it is sufficient to support the guilty verdicts on count 5. (See Oliver, supra, 54 Cal.App.5th at pp. 1098-1101 [finding substantial evidence to support conviction for human trafficking even though victim “was free to go when she pleased”; defendant used verbal abuse to gain victim’s compliance and “required [her] to work as a prostitute every day and to give [him] all the money she earned”]; Guyton, supra, 20 Cal.App.5th at pp. 503, 506-507
DISPOSITION
We affirm the judgments.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
WINDHAM, J.✱
✱ Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Notes
For our purposes, it doesn’t matter whether the “force, fear” sentencing factor is an enhancement, a special allegation, or something that renders a violation of