FACTS
Jessica L. was 23 years old and worked as a home health aide when she bore her son. She grew up in a small farm area in Minnesota. Unable to pаy her bills, she
During this time, Jessica was advertising herself on the Internet as a prostitute in South Dakota. Defendant responded to her online advertisement. He did not describe himself as a pimp, and asked her many questions, such as whether she had kids, was close with her family, and if she finished school. Jessica told defendant she needed to "get [her] son back." She also told him about her financial problems, and that it was important for her to get her traffic tickets paid so she could get her license and car back and get "a regular job."
Defendant sent her picturеs of a mansion and cars and told her, "This could be you." Jessica said, "I'm a country girl from the ranch. You don't see mansions or huge cars and everything." Defendant told her: "You could work for having stuff like this. Like, you know, you could earn this."
Defendant bought Jessica a bus ticket, and picked her up at the bus station in a new car. Jessica was impressed. He introduced her to a woman named Kеlly. Kelly taught Jessica "how to answer the phone, how to talk to the right people, how to not talk to certain people. How to stay focused. Stay in pocket," which means "you don't talk to other pimps, you don't talk to other ho's. You don't miss a phone call, you don't miss a text message." She was required to stay in constant contact with defendant or Kelly. Jessicа was instructed not to speak with, "any guys that don't pull up as a trick or ask for a date." Nor was she permitted to speak with other prostitutes or law enforcement. Defendant helped her obtain fake identification, to use in renting hotel rooms.
Jessica got her son back before Christmas 2014. While she worked, defendant, Kelly or "another girl" watched the child. When her son was not with hеr, Jessica never knew where he was, nor where defendant was. When she wanted to see her son, she had to get defendant's permission. The amount of time Jessica was able to spend with her son depended on how much money she made and how fast she made it. Sometimes she asked to see her child, but defendant would not permit it. Jessica explained if she made money fast, she could have her son all night.
Jessica worked for defendant doing sex acts for money from November 2014 until the police became involved on April 18, 2015. During that time, she had four days off in total. Defendant took all the money Jessica made, although she was allowed to keep a small amount to pay for food, clothes, hotels, and to get her nails done. Defendant told her he bought her a car, showed hеr pictures of it, and told her it was in the shop.
When Jessica did not follow the rules, defendant, who is a foot taller than her,
Jessica felt defendant was always watching her and always knew where she was. He discouraged her from talking to her baby's father, and monitored her phone usage. When she spoke with "the wrong people," defendant took the phone away from her. Defendant changed Jessica's cell phone number three times. The phones defendant gave her to use did not have Internet access, and any time she used someone else's phone to see what her friends were doing on Facebook, defendant would find out, so she "gave up being on it." She felt "stuck" because she had to work every day, the hours were exhausting and she missed her son. Jessica told defendant multiple times that she wanted to go home and "stop doing this," and defendant would respond, "just wait." Jessica felt isolated from other people, was always crying and "just turn numb." She said at times, she "didn't understand what was happening."
Jessica received a $4,500 tax refund from a job she previously had, prior to prostitution. Jessica was able to keeр about $320. Defendant took the rest. Defendant told her the money would be used for a car or an apartment for her.
On April 18, 2015, Jessica decided to sneak away in the middle of the night. She called her father and asked him to have the baby's father pick her up by a Walmart close to her motel later that night, at 12:30 a.m., because that was when she could get away from some рeople. She wanted to have her son and her luggage, and just "hop in" and "keep on driving." She told her father not to try to call her, explaining in court that a call could come in "when I'm like on a date or if I'm with [defendant]." She said she was "scared and nervous."
Jessica's father spoke to the supervising police officer of the Orange County Human Trafficking Multi-Agency Law Enforсement Team at about 8:30 p.m. The police officer stated that the father sounded distraught, frustrated and "in a panic." After the police learned that Jessica was in a motel near the Walmart, they located her in a specific motel and set up surveillance in the general area. When they saw Jessica in the lobby, the supervisor and another officer, wearing police gear, entered the motel. As soon as Jessica saw them, she started crying.
The police determined Jessica's son was not with her, and they did not know where he was. At that point, the police believed the child was with a suspected human trafficker. The supervising police officer testified: "All of our scenarios have been where the child is being used as leverage to get the person to continue working." Until 4:00 a.m., the police worked toward finding the little boy. Jessica called defendant a couple of times to try to get him to bring her son to the motel. The police were present while defendant and Jessica spoke on the speaker phone. A police officer who was a member of the Orange County Human Trafficking Task Force overheard defendant "began yelling at her and calling her names." The officer added: "[Defendant] was on speaker when she was talking to him on the phone. I was standing across from her. She was sitting on the bed. And as he is yelling at her and asking her why she kept calling so many times, she started
Eventually, defendant said on the phone that Kelly was complaining about babysitting, and that he was "tired of this kid shit man." Thereafter, a black Mercedes with defendant and the child inside pulled into the parking lot of the motel. Defendant was detained and the child, who was approximately a year old, was recovered. The little boy was brought to Jessica's motel room. He ran toward her and they embraced each other.
The Expert
At trial, a deputy with the Orange County Human Trafficking Task Force, who was also deemed the investigating officer in this case, testified about pimp culture. Pimps solicit prostitutes to work for them by "selling the dream." The officer explained: "Selling the dream is basically the pimp getting to know the female he's looking to-he's looking to hire as one of his girls and getting to know her, getting to know what she needs. What is she looking for? What is she trying to do? Does she need money? Does she lack family? Does she not have close friends? You know, getting to know her. [¶] And then whatever he discovers or deems that she needs or she lacks in her life, he will somehow fulfill." With regard to Jessica, the expert said: "Well, in this case particularly, the false promises for Jessica were the car, the apartment, the nanny, and her being able to have all this money she was making."
The deputy said that pimps are constantly driving around where the prostitute is "posted on the track." The expert said prostitutes "have experienced where a pimp has parked across the street and has a steady eye on her to monitor what she's doing and/or they're frequently texting." The officer added: "The pimp is constantly texting her or calling her. 'Where are you at? I want you to walk this way. I want you to go that way. I want you to go to this corner or that сorner.' " It is common for pimps to stay at a hotel just down the street from the prostitute.
The investigating officer explained to the jury what a "faggot bitch" means in pimp culture: "[T]hat is just describing someone who isn't down-who isn't down for the cause, who isn't willing to go-who isn't willing to stay on the track, who isn't willing to work through their menstrual cycle, who isn't willing to meet their trap; therefore, they are a faggot bitch or they are fagging off, which means that they're just not committed to the goal."
Based on training and experience, the expert explained that "pimping is when someone gains from another's material or financial gain knowing that that other person has engaged in commercial sex," and a case goes from pimping into human trafficking "[w]hen someone's personal libеrty has been deprived of them and/or violated, it'll elevate the case. It changes the
II
DISCUSSION
Defendant "concedes there was sufficient evidence to establish he was guilty of pandering and pimping; however, he challenges whether there was sufficient evidence to prove he violated Jessica's personal liberty and committed the crime of human trafficking."
Pandering is a crime that targets procuring a person for the purpose of prostitution; it has a sentencing range of three, four or six years in prison. ( Pen. Code, § 266i, subd. (a).) (All further statutory references are to the Penal Code.) Pimping is a crime committed when a defendant knows a person to be a prostitute and derives support or maintenance from the prostitute's earnings; it also has a sentencing range of three, four or six years in prison. (§ 266h, subd. (a).)
Human trafficking entails a deprivation of liberty and carries the much heftier sentencing range of eight, 14 or 20 years in prison. (§ 236.1, subd. (b).) A person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services is guilty of human trafficking. (§ 236.1, subd. (a).) " 'Deprivation or violation of the personal liberty of another' includes substantial and sustained restriction of another's liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or tо another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out." (§ 236.1, subd. (h)(3).)
In assessing a claim for insufficient evidence, the reviewing court will presume in support of the judgment every fact the trier of fact reasonably could infer from the evidence. ( People v. Kraft (2000)
Defendant argues Jessica "was not abducted. She stayed in her own hotel room, she bought her own food, she paid to have her nails done, and she had
But Jessica says she stayed "in [her] own bubble," afraid she would "get caught and yelled at." The various restrictions defendant placed on Jessica, such as isolating her, constantly monitoring her, requiring her to stay in contact with him by phone, checking her phone, requiring her to work so much she was exhausted, falsely promising he had purchased a car for her and depriving her of the financial means to live rendered Jessica totally reliant on defendant. She was afraid of him, never knowing where he was. A police officer observed her cowеr as defendant shouted at her over the cell phone. From this record, a jury could have reasonably found that Jessica was isolated and kept dependent on defendant for her day-to-day sustenance, including food, shelter and money. Under these circumstances, we conclude there is substantial evidence of a substantial and sustained restriction of liberty
And then there's the baby. Defendant kept the child from his mother for four months, in a secret place, permitting Jessica to see him when he determined she earned that right and after he gave his permission. We note that the liberty interest in family privacy has its source in intrinsic human rights. ( Smith v. Organization of Foster Families for Equality & Reform (1977)
Something far more serious and sinister than a pimp deriving support or maintenance from the prostitute's earnings was occurring here. Under the circumstances disclosed in this record, we find there is substantial evidence to support the jury's verdict that defendant committed human trafficking.
Court's Instructions
Defendant next argues the trial court erred in not instructing the jury on the lesser included offense of attempted human trafficking. The Attorney General agrees that attempted human trafficking is a lesser included offense of the crime of human traffiсking, but argues the court was not required to provide the jury with an instruction on attempted human trafficking because there was no substantial evidence to support it.
Here, the evidence demonstrates defendant coerced Jessica to work as a prostitute by controlling when she could sеe her son. The jury could not have found that he only attempted to deprive Jessica of her liberty but was unsuccessful. Thus, there was no basis for an instruction on attempted human trafficking.
Even assuming the trial court had been required to instruct the jury on attempted human trafficking, however, any resulting error was harmless. We conclude it is not reasonably probable that a result more favоrable to defendant would have been reached had the court instructed the jury on attempted human trafficking. ( People v. Watson (1956)
Pitchess Motion
Under Pitchess v. Superior Court (1974)
Our review of the trial court's Pitchess motion determination is for an
We have independently reviewed the sealed reporter's transcript of the in camera proceedings, as well as the defendant's motion. During the in camera proceeding, the trial court reviewed the personnel files of the investigating officer that were provided by the custodian of records. The documents are described and were reviewed by the court. We are satisfied that the court did not abuse its discretion by finding there was no information to disclose. ( People v. Byers (2016)
III
DISPOSITION
The judgment is affirmed.
WE CONCUR:
FYBEL, J.
IKOLA, J.