P. v. Aguilon

P. v. Aguilon

Filed 8/18/08 P. v. Aguilon CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. INGRID ROXANA AGUILON, Defendant and Appellant.

B198267 (Los Angeles County Super. Ct. No. NA071099)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed.

Deborah Blanchard, 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, Assistant Attorney General, Susan D. Martynec and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.

Ingrid Roxana Aguilon appeals from the judgment entered following a jury trial which resulted in her conviction of pimping (Pen. Code, 266h, subd. (a)).^[1] The trial court sentenced Aguilon to three years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The prosecutions case.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that at approximately 5:00 p.m. on July 29, 2006, Long Beach Police Department vice officers were engaged in an undercover operation. Detective Reginald Vega, who was wearing plain clothes and equipped with a wire so that back up officers could hear what was happening, went to 1460 Magnolia in Long Beach. As he approached the front door, Vega heard what sounded like several women speaking Spanish run toward the back of the house. Aguilon then opened the door and asked Vega what he wanted.

Vega told Aguilon he was there looking for a massage. Aguilon seemed very, very surprised and she asked Vega several times if he was a police officer. After Vega told Aguilon he was not a police officer, she wanted to know who had told him that he could get a massage there. Vega told Aguilon that his friend, Mauricio, had told him about the place. Aguilon indicated she did not know a Mauricio and again asked Vega if he was a police officer. When Vega insisted he was not a police officer and showed Aguilon his undercover identification, Aguilon seemed to relax a bit.

Aguilon asked Vega if he wanted a one-half hour or a one-hour massage. Vega told Aguilon he wanted a one-half hour massage to relieve the soreness in his back. Aguilon said they did not give that kind of massage; they gave relaxing, sensual-type massages.

Aguilon told Vega the massage would cost $40. Vega handed Aguilon two prerecorded $20 bills and she led him to a room furnished with a mattress covered with a towel. The window was covered with a bed sheet. After a few minutes, a woman walked in. She was wearing a brown, lace-up top and a pink mini skirt. She told Vega her name was Saeda Martinez.

Martinez told Vega to take off his clothes and lie down on the bed. After removing his clothing, except for his boxer briefs, Vega laid face down on the mattress. Martinez started to rub Vegas back with baby oil. After several minutes, Vega asked Martinez what else he could get with his massage. Martinez told Vega it would be extra. Vega told Martinez that he had $100 and wanted to know if that was enough for everything. After Martinez responded that it was enough, Vega asked her if she had a condom. Martinez replied that she did, then left the room for a moment. Vega got up off of the bed and when Martinez returned with the condom, he told her that he just wanted to have sex. Martinez then removed her clothes, opened the condom and laid down on the mattress. At that point, Vega gave a predetermined arrest signal to the assisting detectives.

Within a few minutes, Vega heard officers knocking on the front door, yelling,  Police, open the door.  As Vega put on his shorts and shirt, Martinez dressed, then left the room. Vega could hear people moving about inside the house. He then walked to the front door to let the other officers in. Officers found Aguilon in a back bedroom with her boyfriend. Martinez was in one of the bedrooms. A third woman in the house stated she was there only to bring food to Aguilon.

Officers checked all of the bedrooms. Each room had a mattress on the floor and a sheet for a curtain across the window. In the kitchen, Vega found $120. On the TV stand in the living room, Vega discovered business cards which, in Spanish, advertised a cleaning service. Also on the TV stand was an ad application for  Besitos Therapy.  Besitos is Spanish for kisses. The telephone number on the advertisement application was the same as that on the business cards. Vega then discovered an El Clasificado magazine with an advertisement for massages. The ad was in Spanish. Translated into English it read:  Grand opening Long Beach. Come and meet . . . us so we can give you . . . a delicate massage. We are soliciting girls.  The telephone number on the advertisement was the same as that which appeared on the business cards and the advertisement for Besitos Therapy. When Vega called the number, a cell phone inside the house began to ring.

b. Defense evidence.

In her defense, Aguilon testified that the $40 collected from Vega would go to Martinez. Aguilon stated, That day I didnt go into any bedroom. We would take turns to take care of each other. [] The forty dollars I received at the door were Saeda Martinezs because we take turns. When someone would come[,] she would go or I would go. Wed take care of each other. Aguilon indicated that, when it was her turn to take care of a customer, Martinez would take the money for her. Aguilon never kept money earned by Martinez and Martinez did not keep money earned by Aguilon.

2. Procedural history.

In an information filed November 27, 2006, Aguilon was charged with one count of pimping in violation of section 266h, subdivision (a).

At the close of the prosecutions case, Aguilon made a motion for a judgment of acquittal pursuant to section 1118.1. The trial court denied the motion.

After being instructed on the elements of pimping, the jury found Aguilon guilty of the charged offense.

At sentencing, the trial court imposed the low term of three years, finding that Aguilon had no prior criminal record. Aguilon was ordered to pay a $600 restitution fine ( 1202.4, subd. (b)), a $600 stayed parole revocation restitution fine ( 1202.45) and a $20 court security fee ( 1465.8, subd. (a)(1)).

Aguilon was awarded presentence custody credit for 43 days actually served plus 20 days of good time/work time, for a total of 63 days.

CONTENTIONS

Aguilon contends: (1) her conviction of pimping must be reversed because there was insufficient evidence of each element of the offense and (2) her Fifth and Fourteenth Amendment rights were violated by the instructional error which led to her conviction.

DISCUSSION

1. Substantial evidence supports Aguilons conviction of pimping.

Aguilon contends there is insufficient evidence to support her conviction of pimping. She asserts there is no evidence she profited or benefitted from Martinezs acts.

With regard to claims of insufficiency of the evidence, our role on appeal is a limited one. The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

Section 266h, subdivision (a) prohibits pimping. It provides, in relevant part: Except as provided in subdivision (b), any 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 persons 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, a felony, and shall be punishable by imprisonment in the state prison . . . .

Section 266h, subdivision (a) can be violated in two ways: (1) by deriving support from the earnings of anothers act of prostitution or (2) by soliciting. In order to violate the statute by soliciting, there must be either the receipt of compensation for soliciting for a prostitute or the solicitation of compensation for soliciting for a prostitute. [Citation.] (People v. McNulty (1988) 202 Cal.App.3d 624, 630, italics in original; see Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 427.) In regard to the first basic way to violate the statute, deriving support with knowledge that the other person is a prostitute is all that is required for violating the section in this manner. (People v. NcNulty, supra, at p. 630.)

Aguilon asserts the prosecution failed to show that she retained the $40 from Vega for herself or received other remuneration for soliciting for Martinez. The evidence indicates otherwise. It was Aguilon who answered the door and, after some discussion, decided to allow Vega to enter the apartment. When Vega then inquired about a massage, it was Aguilon who informed him of the price, took his money and showed him to a room. Martinez received no money from Vega and the $120 dollars found in the kitchen did not appear to have been divided in any way; the $40 Vega paid to Aguilon had not been separated from the rest of the money.

Other evidence indicated Aguilon was acting as a pimp. The advertisement application for Besitos Therapy and the ad in El Clasificado magazine indicating Aguilon was having a Grand opening and was soliciting girls bore Aguilons cell phone number.

In view of this evidence, considered as a whole, a jury could reasonably infer that Aguilon was deriving support from the earnings of acts of prostitution. Substantial evidence supports the finding Aguilon was acting as a pimp.

2. Any instructional error was harmless.

The trial court instructed the jury on pimping as follows: Every person who knowing a person is a prostitute solicits or receives compensation for soliciting for the person is guilty of the crime of pimping, in violation of Penal Code section 266[h], subdivision a. [] Prostitution is engaging in sexual intercourse or any lewd act between persons for money or other consideration. [] In order to prove this crime each of the following elements must be proved: [] 1. The defendant knew that another person was a prostitute, and; [] 2.  . . . [] That defendant solicited compensation or received compensation for soliciting customers for the prostitution services of either person. . . . (Italics added.)^[2]

Aguilon contends her rights under the Fifth and Fourteenth Amendments were violated by the instructional error. She claims the phrase either person was incorrect and caused the jury to believe it could find her guilty of pimping if she received compensation for Martinezs or her own acts of prostitution. She further argues that, since she testified that she is a prostitute, the instruction was highly prejudicial. In addition, the written version of the instruction provided to the jury did not cure the error. That instruction, which Aguilon deems unintelligible, read as follows: [Defendant is accused in [Count I] of having committed the crime of pimping in violation of section 266h, subdivision (a) of the Penal Code.] [] Every person who, knowing another person is a prostitute, person by any keeper or [solicits compensation or receives compensation for soliciting for the person], is guilty of the crime of pimping in violation of Penal Code section 266h, subdivision (a).

An erroneous instruction requires reversal if there was a reasonable probability an appellant would have received a more favorable result had the jury been properly instructed. (People v. Flood (1998) 18 Cal.4th 470, 490; People v. Watson (1956) 46 Cal.2d 818, 836-837.)

In the present case, there is no reasonable probability the jury believed Aguilon was acting as a pimp on her own behalf. At the beginning of trial, the court read to the jury the charge being alleged against Aguilon. It read as follows: [T]hat on or about July 29th, 2006, in the County of Los Angeles, the crime of pimping, in violation of Penal Code section 266h[,] subdivision (a) was committed by Roxana Ingrid Aguilon, who did unlawfully . . . and knowing Saeda Martinez to be a prostitute, live and derive support and maintenance, in whole and in part, from the earnings and proceeds of said persons prostitution . . . . The charge clearly alleges Aguilon was acting as a pimp, not as a prostitute. Moreover, although at trial Aguilon testified she was a prostitute, the evidence in this case could not have supported such a finding. Aguilon did not take part in any acts of prostitution.

Viewing the evidence and instructions as a whole, the jury could not have misunderstood the trial courts misstatement of either person as permitting Aguilon to be convicted of pimping for her own acts of prostitution. Any error which occurred was harmless. (People v. Flood, supra, 18 Cal.4th at p. 490; People v. Watson, supra, 46 Cal.2d at pp. 836-837.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] CALJIC No. 10.70 provides in relevant part: Every 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 that other persons prostitution, or from money loaned or advanced to or charged against that other person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed [or] [solicits or receives compensation for soliciting for the person], is guilty of the crime of pimping in violation of Penal Code section 266h, subdivision (a). [] Prostitution is engaging in sexual intercourse or any lewd act between persons for money or other consideration. [] In order to prove this crime, each of the following elements must be proved: [] 1. The defendant knew that another person was a prostitute, and [] [2. . . . [] That defendant [solicited [or] [received] compensation for soliciting customers for the prostitution services of the other person. (Italics added.)