[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *373 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *374 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *375
Prior to trial a number of motions were heard and denied by the trial court, including a motion to dismiss (§
After a trial by jury, appellant was convicted of three counts of violating section
During the next two year period appellant arranged appointments for Doversola with appellant's clients. These meetings took place both in and out of Los Angeles County. Eighty to eighty-five percent of these appointments involved some sort of sex. Appellant received her share of Doversola's earnings either in person or by mail.
Pursuant to a grant of immunity, April White testified that she met appellant in May of 1998. Appellant told White she could make appointments for White with appellant's clients and White would have sex with them in exchange for money. The split would be 60 percent for White and 40 percent for appellant. White was told the rules she would be expected to follow and how to send appellant her share of the proceeds. Appellant arranged for White to meet a client of hers in order to have sex in exchange for $1,000. White had sex with the client, but was only paid $500, of which appellant was paid a portion. During the next year, appellant set up White *377 with clients. Approximately 80 to 95 percent of these appointments involved sex in exchange for money. White sent appellant her share of the money. These appointments took place both inside and outside of Los Angeles County. Before each meeting, appellant told White the date, time and location of the client, as well as the client's sexual preferences. White testified that she felt forced intо some situations by appellant, and that appellant had expanded White's prostitution activities.
Based upon an anonymous tip, the Los Angeles Police Department (LAPD) began an undercover investigation into appellant's "agency," "California Dreamin'." LAPD Officer Cynthia Neff contacted the agency on September 24, 1998, in an undercover capacity, posing as an individual named "Taylor" and "Candice" or "Candy." Appellant originally held herself out as "Sherry," the secretary to the agency's owner, "Sasha."
Appellant and Neff met on October 1, 1998. Officer Neff was wearing recording equipment. Appellant explained the agency's rules to Neff and told her never to negotiate money with its clients as it would not be romantic. Neff was told how to ship appellant's part of the prostitution proceeds to her. Officer Neff was told to bring condoms on her assignments and that all assignments would require sex. The split of proceeds would be 60 percent for Neff and 40 percent for appellant.
In early February of 1999, Kimberly King met with the appellant. King told appellant her name was Candy Hill. Pursuant to a grant of immunity, King testified that appellant offered to hire her for her "agency." Appellant told King whаt the rules were, what her rate would be ($500 an hour) and what the split would be (60 percent for King, 40 percent for appellant). King worked for the appellant for a number of months, both inside and outside of Los Angeles County. Not all of the jobs required King to have sex with the client. When King was late with appellant's share of the money, appellant told King that bounty hunters would collect the money. King had not been a prostitute before going to work for appellant, although she had been an actress in adult films.2
On March 18, 1999, Officer Neff again met with appellant. Neff was again wearing a recorder. Appellant told the officer that appellant could provide her with jobs all over the country. Appellant told Neff the price for an "appointment" was a $1,000 per hour, $3,000 for overnight, $5,000 for anything over two hours and $2,000 an hour for anal sex. In late March 1999, appellant left Officer Neff several messages in order to see if she was available for out-of-state jobs. *378
At her meeting with appellant in March 1999, Officer Neff told appellant that Neff had a client she wanted to introduce to appellant. It was the LAPD's plan to introduce Detective Razmig Kertenian as the client. On April 1, 1999, Detective Kertenian cаlled "California Dreamin'," and left a message, posing as an individual by the name of Robert Agopian. Appellant returned the call and arranged to have Lianne Doversola meet Kertenian at the Century Plaza Hotel for a rate of $1,000 for two hours. Appellant then called Doversola and arranged the meeting.
Doversola met with Detective Kertenian at the hotel. After some conversation Doversola had the detective remove all of his clothes.3 She then reached for his groin area, at which time he stopped her and engaged her in more conversation. Doversola then took off her clothes and retrieved a condom from her purse. Detective Kertenian told her he was enjoying her beauty and their conversation and they should leave it at that. They arranged to meet in Denver the following week. Doversola then provided Kertenian with her full name and telephone number and suggested that he call her directly, thereby bypassing appellant. Doversola told Kertenian that he would save the 40 percent Doversola paid the appellant. Kertenian paid Doversola $1,000, from which she paid appellant $400.
On April 26, 1999, Kertenian spoke to аppellant and told her he was very pleased with Doversola. They spoke about a future job involving Kertenian and a few of his friends, one of whom wanted a girl who would engage in anal sex. Appellant indicated she had a girl who would engage in anal sex and the charge was $2,000 an hour.
On May 10, 1999, appellant left a message that she had three women ready for Kertenian. On June 1, 1999, Kertenian left appellant a message that he wanted to hire two women and had a business proposition for the appellant. Appellant returned the call and Kertenian told appellant he wanted to hire two women. He also told appellant he wanted her to send women to Kuwait, and they agreed upon a minimum price of $30,000 per week per woman. Further details of the Kuwait deal were to be worked out at a meeting set for June 8, 1999.
Appellant telephoned April White and arranged to send her on a call. Appellant told White there would be another woman on the job with her. On June 2, 1999, appellant left Detective Kertenian a message that she had two women ready to meet him on June 8, and that she wanted to meet Kertenian on the same date to discuss future jobs. On June 3, 1999, appellant left a message reiterating that the two women would be available on June 8, 1999, *379 and inquiring if Kertenian was paying for both women. Kertenian left a message for appellant on June 7 indicating his hotel and room number.
On June 8, 1999, Kertenian and his fellow undercover officer Shoukry Ethnasios occupied two rooms in the Century Plaza Hotel. The rooms were across from each other. They were met by two of appellant's employees, "Kelly" (Aliza Scherer) and "Bethany" (April White). They all gathered in Detective Kertenian's room, where Kertenian handed "Kelly" $2,000, which the women split in the bathroom. "Kelly" remained with Kertenian, while "Bethany" went with Ethnasios to his room. After Ethnasios removed his clothes, "Bethany" grabbed his penis. Ethnasios told her to wait until they got to Kuwait to have sex. The officer then let back-up officers into the room and "Bethany" was detained.
Kertenian and "Kelly" conversed in his room, with "Kelly" asking Kertenian what he would like. After a time, Kertenian brought back-up officers into the room. Kelly was detained. Officers recovered $1,400 from "Kelly" and $600 from "Bethany."
Kertenian then met with appellant at which time she was arrested. A search of her purse yielded an electronic organizer containing Kertenian's undercover name and number.
Appellant was staying in a room at the Airtel Plaza Hotel in Van Nuys. Pursuant to a search warrant, police recovered copies of appellant's "agency's rules," her date book containing the names of Doversola, White and King, and an entry that read, "Lee to Robert Agopian (Candice) $1,000 — $400." The police recovered other evidence that clearly linked the appellant to the previously mentioned call girls and officers Neff and Kertenian.
Pursuant to another search warrant, the appellant's Palo Verde residence in Imperial County was searched. The police recovered numerous items which linked appellant to various call girls, the "California Dreamin'" website, and Detective Kertenian.
Detective Keith Haight was shown a typewritten manuscript found at the appellant's hotel as well as a handwritten manuscript found at appellant's residence. These manuscripts concerned prostitution activities. He opined that both were consistent with pimping and pandering and that one of the manuscripts was also a "trick-book." Haight used these manuscripts in forming his opinion that appellant was involved in pimping and pandering.
*380The defense offered no evidence at trial.
Notes
2. The trial court's admission into evidence of the manuscripts recovered from appellant's residence and hotel room was error.
3. The trial court improperly instructed the jury on "pimping by solicitation."
4. The trial court improperly refused to instruct the jury on the lesser-included or lesser-related charge of aiding and abetting prostitution.
5. The mandatory minimum sentence for рimping constitutes cruel and unusual punishment.
There must be probable cause to believe that the material sought to be seized will be on the premises to be searched when the warrant is served. (People v. Mesa (1975)
However, the question of staleness depends on the facts of each case. Having granted the attorney general's request for judicial notice, we have reviewed the affidavit in support of the search warrant. It reveals that between October of 1998 and January of 1999, law enforcement surveillance of the appellant established her residence at the address that was the subject of the search warrant. The surveillance established appellant's customary *381 residence at the Palo Verde house and occasional travel tо the Airtel Plaza Hotel to conduct business.
There was no reason to believe the appellant had moved. Appellant continued her pattern of traveling to the Airtel Plaza Hotel. The magistrate was presented with ample evidence of a continuing criminal enterprise. (See People v. Mikesell (1996)
Appellant argues that information was omitted from the warrant which would have cast doubt on where appellant lived. This allegation is based on the following facts: In March of 1999, the trial court issued a search warrant, which among other things, sought items such as utility bills and phone numbers at the Palo Verde residence, which would have shown current use of the residence by the appellant. Based upon arguments made at the section
Appellant now argues that in their affidavit to the June warrant, the police were required to include their inability to obtain any new information confirming that appellant resided at the Palo Verde address. Appellant also contends that she was entitled to a hearing pursuant toFranks v. Delaware (1978)
Here, the allegedly omitted information added nothing to the case. The magistrate was aware that no specific information linked appellant to the Palo Verde residence after January of 1999. The "omitted" information neither adds to nor detracts from the known state of facts. Even if the "omitted" information is added into the affidavit, probable cause still exists to show that appellant resided at the Palo Verde residence in June of 1999, as we have discussed, supra. The trial court correctly denied aFranks hearing.
There was no evidence presented that appellant actually wrote or typed either manuscript, nor were any fingerprints obtained from either document. The trial court found that because of where the manuscripts were recovered, there was circumstantial evidence the appellant possessed them. The trial court also found that due to their contents the manuscripts were "tantamount to an admission or confession of sorts," and that the People were entitled to use them to show appellant was a madam. The trial court also found the manuscripts were admissible to show appellant's state of mind as to whether she was acting as a madam.4
Defense counsel conceded that he would not argue that appellant was not a madam, only that she was not as to the prostitutes mentioned in the information. In fact, defense counsel argued to the jury they could find that appellant was a madam. *383
Appellant argues that the manuscripts were improperly admitted because they were not adequately authenticated pursuant to Evidence Code sections
The law is clear that the various means of authentication as set forth in Evidence Code sections
Appellant also claims that in admitting the manuscripts, the trial court did not understand or exercise its discretion within the meaning of Evidence Code section
Appellant overlooks the context of the court's remarks. Only moments before this comment was made, the trial court had specifically excluded evidence pursuant to Evidence Code section
We find the trial court was aware of and exercised its discretion pursuant to Evidence Code section
At the close of the preliminary hearing, appellant's counsel argued that the evidence was insufficient to show a violation of the first part of the statute in that appellant had received any money. The prosecution argued that they had established a violation of the second part of the statute, namely solicitation.
When the information was filed, and in each subsequent amendment, the People did not set forth the portion of the statute dealing with solicitation.
Appellant now argues, as she did at trial, that she was denied due process because she had no notice the People were relying on the solicitation component of section
In People v. Vetri (1960)
In the instant matter, the evidence presented at both the preliminary hearing and at trial clearly gave the appellant adequate notice of the charges against her, which included all acts proscribed by section
At the outset we note there is no "crime" of aiding and abetting prostitution. In connection with prohibiting prostitution as a form of disorderly conduct, section
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. (CALJIC 3.01; People v. Beeman
(1984)
More importantly, our Supreme Court has made clear that pimping and solicitation for prostitution are intended to be different categories of crimes. In People v. Smith (1955)
We note that the solicitation component of section
Finally, as is clear from our discussion of the facts, supra, the evidence showed appellant derived support from the earnings of prostitutes, received compensation for the solicitation of prostitutes and solicited compensation for the solicitation of prostitutes. The appellant failed to show she is only guilty of what she perceives to be a lesser offense. The only possible offense she committed wаs that of pimping. Therefore the trial court correctly refused to instruct the jury as to any possible lesser offense.
In order to determine whether a sentence constitutes cruel and/or unusual punishment, we turn to our Supreme Court's decision in In ReLynch *387
(1972)
"[T]he nature of the offense and/or the offender, with particular regard to the degree of danger both present to society;" Comparison of the challenged penalty with penalties imposed in the same jurisdiction for different offenses which "must be deemed more serious" under the same standards used to assess the nature of the offense and the offender; and
Comparison of the penalty with punishments prescribed for the "same offense in other jurisdictions." (Id. at pp. 425-427.)
As to the first part of the first prong set forth in Lynch, various courts of appeal have unanimously decided there is no constitutional violation in regards to the naturе of the offense. Section
As to the second part of the first prong, the record reveals the appellant to be a sophisticated, experienced madam, with a business that reached across the United States and was attempting to expand internationally. Her illegal and high-priced business affected many people. In addition, she was not above making threats tо ensure she received her share of the proceeds of the prostitution enterprise she conducted. Appellant's sentence is not grossly disproportionate to her culpability.
Turning to the second prong of Lynch, we must examine the minimum mandatory sentence imposed for pimping with the penalty imposed in California for other crimes. Appellant argues that section
We note the opening section of
We also take note of the cases cited in McNulty, supra, People v.Madden (1979)
Appellant also points to section
The final prong of Lynch mаndates that we compare punishments between California and other states.
As McNulty, supra,
We are satisfied that although the trial court discussed the possibility of probation for the appellant but for her ineligibility for probation, her sentence is not so out of propоrtion to the offense that judicial intervention is required in order to prevent a violation of the rule against cruel or unusual punishment. (People v. Dillon (1983)
We concur:
KLEIN, P.J.
KITCHING, J.