P. v. Pimental

P. v. Pimental

Filed 8/18/08 P. v. Pimental CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. ROBERT PIMENTEL, Defendant and Appellant.

2d Crim. No. B203440 (Super. Ct. No. NA73718) (Los Angeles County)

Robert Pimental appeals from the judgment entered following his conviction by a jury of pimping. (Pen. Code,  266h, subd. (a).) He was sentenced to prison for three years. Appellant contends that the evidence is insufficient to support the conviction because there is no substantial evidence that he knew he was dealing with a prostitute. In addition, he contends that the trial court erroneously excluded evidence that the alleged prostitute had been acquitted of a prostitution charge based on the same facts underlying the pimping charge. We affirm.

Facts

Prosecution Evidence

Detective John Harrigan was assigned to the Vice Investigations Detail of the Long Beach Police Department. While visiting the erotic service section of the website "Craigslist," he saw an advertisement that showed a female "exposing her naked buttocks." The advertisement said, "In call, come over," and "I'm very open to all your personal needs."

Harrigan suspected that the purpose of the advertisement was to solicit customers for prostitution services. He knew that the term "in call" means that prostitutes "will provide a location for you to come to or direct you to a location they're working out of." Harrigan also knew that prostitutes had previously used the erotic service section of the website "to advertise their services."

Harrigan dialed the telephone number listed in the advertisement. "A female voice stating she was Katie answered." "Katie" said that she would charge $200 for "a nude rubdown" or $250 for "a full service with protection." Harrigan explained that "[f]ull service with protection is a term used by prostitutes that means both oral copulation and sexual intercourse with protection using a condom."

"Katie" arranged to meet Harrigan at a hotel. After arriving at his hotel room, Harrigan heard a knock on the door. He opened the door and saw a woman, who identified herself as Katie. But the woman suddenly said she had an emergency and left.

Harrigan received a voicemail apologizing for the woman's departure. The caller said that she would "make it up to [him], . . . and it can be you on top or me, . . . whatever you want . . . ." Harrigan interpreted the words, "you on top or me," as referring to "a sexual position." The voicemail was from appellant, who was pretending to be a woman.

Harrigan dialed the telephone number listed in the advertisement. Appellant answered and, again pretending to be a woman, said that "she'd give [him] a night [he] would not forget."

Appellant drove a vehicle into a parking lot across from the hotel where Harrigan was staying. Sandra Kole exited the vehicle and walked to Harrigan's room. Harrigan heard another knock on the door. He opened it, and Sandra Kole came inside. Kole asked Harrigan if he "was looking for full service." Harrigan responded that he wanted "a blow job and sex," street lingo for oral copulation and sexual intercourse. Kole said, "Okay." She confirmed that the price would be $250.

Harrigan put the money on top of a dresser. After Kole had removed her skirt, shirt, and bra, she was arrested for prostitution. Several condoms were found inside her purse.

Meanwhile, appellant had driven away from the parking lot and had stopped at a restaurant. He and his passenger, Debbie Pimental, were questioned by the police. Appellant said that he had dropped off a friend and was waiting for her telephone call to say when she wanted to be picked up. Debbie Pimental said that they had dropped off a girl "to do a show." She explained that appellant owned a business called "Party Services for You," and that she booked shows for the business at a price of $250 per hour.

Appellant subsequently told the police that he had arranged for women to "perform shows that he called exotic nude rubdowns." He said that the shows did not involve any touching in a sexual manner. He admitted placing the advertisement on Craigslist.

Defense Evidence

Sandra Kole testified that she had signed an agreement with appellant to perform as a dancer. It was understood that no sex would be involved. When she arrived at Harrigan's hotel room, she did not offer to provide sexual services. She assumed that she was going to put "a girlie outfit[] on" and dance for him.

Appellant testified as follows:

Sandra Kole worked for him as an independent contractor. She provided "adult entertainment" that did not involve sexual acts. He did not know that Sandra Kole was a prostitute.

Appellant was the only person who spoke to Harrigan over the telephone. During the telephone conversations, including the initial conversation between Harrigan and "Katie," he impersonated a woman. When he said in the voicemail, "you on top or me," he was referring to a lap dance: "[T]his is a dance situation. The dancer's [sic] can be giving the lap dance, . . . or he [the customer] can give the lap dance." "Full service with protection" meant that he would remain in the area and be available in case there were problems.

Sufficiency of the Evidence

To prove the crime of pimping, the prosecution was required to show that appellant knew Kole was a prostitute. (Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 446.)[1] "A 'prostitute' for this purpose is a person who indiscriminately offers to perform sexual intercourse or other lewd acts between persons for hire. [Citations.]" (Ibid.) Appellant contends that the evidence is insufficient to show that he knew Kole was a prostitute.

"[W]e 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 - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.) "[I]t is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]" (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) '[A]ll conflicts in the evidence . . . must be resolved in favor of the judgment. [Citations.]" (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.)

Viewing the evidence in the light most favorable to the judgment and resolving all conflicts in its favor, we conclude that substantial evidence supports the jury's finding that appellant knew Kole was a prostitute. Appellant admitted placing the advertisement on Craigslist. The advertisement showed a woman "exposing her naked buttocks." It said, "In call, come over," and "I'm very open to all your personal needs." The jury could have reasonably found that the advertisement was for prostitution services. Harrigan testified that "in call" is used by prostitutes to indicate that "they will provide a location for you to come to or direct you to a location they're working out of."

In addition, appellant said that for $250 he would provide "a full service with protection." Harrigan explained that "[f]ull service with protection is a term used by prostitutes that means both oral copulation and sexual intercourse with protection using a condom."

Furthermore, in the voicemail appellant said that he would "make it up to [Harrigan], . . . and it can be you on top or me, . . . whatever you want . . . ." The jury could have reasonably interpreted "you on top or me" as referring to a position taken during sexual intercourse.

Finally, when Kole arrived at Harrigan's hotel room, she agreed to orally copulate him and engage in sexual intercourse. Her purse contained condoms, which would have been unnecessary if she had intended to just perform a dance.

Exclusion of Evidence of Acquittal

Appellant contends that the trial court erroneously excluded evidence that Kole had been acquitted of a prostitution charge based on the same facts underlying the pimping charge. The trial court ruled that the evidence was inadmissible because it was hearsay and irrelevant. Appellant argues that evidence of the acquittal was admissible "to counter the impression of Ms. Kole as a known prostitute." "The fact Ms. Kole was acquitted of the prostitution charges strongly reinforced appellant's defense that he did not know she was a prostitute, yet the jury was never allowed to hear it."

"We review the trial court's rulings on relevance . . . for abuse of discretion. [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1198.) "Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.]" (People v. Scheid (1997) 16 Cal.4th 1, 13-14.)

The trial court did not abuse its discretion. "[E]vidence of a prior acquittal is not relevant because it does not prove innocence but rather merely indicates that the prior prosecution failed to meet its burden of proving beyond a reasonable doubt at least one element of the crime. [Citations.]" (United States v. Kerley  (5th Cir. 1981) 643 F.2d 299, 300-301; accord, United States v. Jones (7th Cir. 1986) 808 F.2d 561, 566.) Moreover, "it is impossible to know exactly why a jury found a defendant not guilty on a certain charge." (United States v. Watts  (1997) 519 U.S. 148, 155 [117 S.Ct. 633, 136 L.Ed.2d 554].)

We recognize that, pursuant to People v. Griffin (1967) 66 Cal.2d 459, "if a trial court permits the prosecution to present evidence that the defendant committed one or more similar offenses for which he or she is not charged in the current prosecution, the trial court must also allow the defense to present evidence of the defendant's acquittal, if any, of such crimes . . . ." (People v. Mullens (2004) 119 Cal.App.4th 648, 664-665.) The Griffin rule is inapplicable here because the acquittal was of an offense allegedly committed by Kole, not an uncharged similar offense allegedly committed by appellant. [2]

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

James B. Pierce, Judge

Superior Court County of Los Angeles

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Stacy S.Schwartz, Deputy Attorney General, for Plaintiff and Respondent.

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[1] Section 266h, subdivision (a), provides: "[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping . . . . " (Emphasis added.)

[2] Because the trial court did not abuse its discretion in determining that evidence of the acquittal was irrelevant, we need not consider its alternative ground for excluding the evidence: that the acquittal was inadmissible hearsay.