P. v. Bodian

Filed 6/30/08 P. v. Bodian CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Patricia M. Schnegg, Judge. Affirmed.

Robert H. Pourvali, 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, Paul M. Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

Peter Bodian appeals his conviction of two counts of pandering by procuring, in violation of Penal Code section 266i, subdivision (a)(1) (all statutory references, unless otherwise indicated, are to this code) and one count of pimping in violation of section 266h, subdivision (a). He claims the evidence is insufficient to support the verdict, and that he was deprived of the right to present a full defense by the courts exclusion of a ledger. We find no error and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

We reserve treatment of the facts for the Discussion portion of this opinion. Appellant was arrested and charged with two counts of pandering by procuring and one count of pimping, in violation of sections 266i and 266h. After jury trial, he was found guilty as charged. This is a timely appeal from the judgment of conviction.

DISCUSSION

I

Appellant claims there is insufficient evidence to support his convictions on all three counts. Count 1 charged appellant with the crime of pandering by procuring, by unlawfully procur[ing] GHETA, A., another person, for the purpose of prostitution. Section 266i, subdivision (a)(1) provides: [A]ny person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: [] (1) Procures another person for the purpose of prostitution.

Officer Gheta testified that she telephoned appellants escort service and asked if they were hiring. She was asked if she did full service, which she understood meant sexual intercourse. Gheta arranged to meet with appellant and wore a wire to their meeting. During the meeting appellant asked Gheta if she was open-minded, which she understood from her experience as a police officer meant open to sexual intercourse and oral copulation. She testified that he asked her if she was okay with giving or doing blow jobs and things like that. After that, appellant proceeded to discuss the price for her services, how the money would be divided, and the fact that she could work for tips. Officer Gheta understood this last as indicating she could receive money for prostitution. Appellant also described the sexual preferences of many of his clients to Officer Gheta, and gave her advice about how to recognize and avoid law enforcement. The jury could infer from this evidence that appellant procured Officer Gheta to work as a prostitute within the meaning of section 266i, subdivision (a)(1).

A

Appellant argues Officer Ghetas testimony does not constitute substantial evidence of procuring Officer Gheta for purposes of prostitution because it was not corroborated by the tape recording made of the conversation. The recording was admittedly of poor quality and difficult to understand. Defense counsel couldand didargue that the officers testimony was inconsistent with the tape recording. The jury, having the opportunity to consider both the live and recorded evidence, resolved the conflict by finding appellant had procured prostitution. Viewing the evidence in favor of the judgment, we find there is substantial evidence from which the jury could conclude that appellant was guilty of procuring prostitution as charged in count 1. (People v. Ceja (1993) 4 Cal.4th 1134, 1143)

Appellant also argues that the only significant evidence against him was Officer Ghetas uncorroborated testimony that he asked her about performing oral sex, and, under the corpus delicti rule, a defendant may not be convicted based on his out-of-court statements alone. The corpus delicti rule generally requires the prosecution to prove the body of the crime itself independent of a defendants extrajudicial statements. (People v. Sapp (2003) 31 Cal.4th 240, 303.) Its purpose is to ensure that one will not be falsely convicted, by his or her untested words alone, of a crime that never happened. (People v. Alvarez (2002) 27 Cal.4th 1161, 1169.)

But in this case, appellants statements in hiring Officer Gheta for purposes of prostitution constitute the crime itself. Where a statement to the victim is the crime, the statement may supply the corpus delicti. (People v. Carpenter (1997) 15 Cal.4th 312, 394.) The jury reasonably could have believed Ghetas testimony and the statements on the tape recording in determining that she was hired by appellant to be a prostitute. This evidence is sufficient to support the conviction on this count.

B

Appellant next challenges the sufficiency of the evidence to support his conviction on count 2, pimping Darlecia Miller in violation of section 266h, subdivision (a), and count 3, pandering by procuring Darlecia Miller for the purpose of prostitution in violation of section 266i, subdivision (a)(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 persons prostitution . . . 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 for three, four, or six years.

The preliminary hearing testimony of Darlecia Miller was read into the record during the trial.[1] Miller went to a hotel room of Officer Hunter, who was posing as a customer on April 26, 2006, in order to perform sexual acts. Appellant drove Miller to Hunter, collected the payment, then left the room. Miller also testified that she responded to appellants advertisement in the newspaper and called him, seeking employment. Miller met with appellant and they discussed their business relationship, in which appellant would book clients and drive Miller to appointments, where Miller would perform sexual acts, including intercourse and oral sex. Appellant and Miller would share the payments collected, with fees split depending on whether appellant needed to drive Miller to the client. Appellant would either collect the fees directly or pick up his portion of the fees each night. Miller testified that she worked for appellant in this capacity for two months. The jury could infer from this evidence that appellant procured Miller to work as a prostitute within the meaning of section 266i, subdivision (a)(1).

C

Appellant argues Millers testimony does not constitute substantial evidence to support the pandering conviction because it was uncorroborated. The jury, having the duty to consider the preliminary hearing testimony of Miller and the testimonies of Officers Gheta and Hunter, believed that appellant had hired Miller for purposes of prostitution. Viewing the evidence in favor of the judgment, we find substantial evidence from which the jury could conclude that appellant was guilty of procuring Miller for purposes of prostitution as charged in count 3. (People v. Ceja, supra, 4 Cal.4th at p. 1143.)

Appellant also argues that, as in count 1, the corpus delicti rule prevents Millers testimony about the out-of-court statements made by appellant from establishing the body of the crime of pandering. But, as we have seen, that rule does not apply where the extrajudicial statements constitute the crime itself. (People v. Carpenter, supra, 15 Cal.4th at p. 394.)

Appellant argues that the evidence showed that he hired Miller for legally advertised massage, stripping, and other services and therefore was receiving payment for legal services, not prostitution activities. The jury had the opportunity to determine whether it believed Miller was hired for legal or illegal purposes, and could weigh the testimony of Miller, Officer Gheta, and Officer Hunter for that purpose. It concluded that Miller was involved in prostitution and appellant derived support from Millers prostitution activities or solicited or received compensation for soliciting for Miller within the meaning of section 266h, subdivision (a). Viewing the evidence in favor of the judgment, we find the evidence sufficient to support the conviction on count 2. (People v. Ceja, supra, 4 Cal.4th at p. 1143.)

II

Appellant argues that the trial court erred in refusing to admit into evidence a ledger seized during a search of Miller. The trial court refused to admit the ledger on the following grounds: lack of authentication, lack of materiality, and the risk of undue prejudice created by the ledgers entries. Miller testified during appellants preliminary hearing, but later at trial Miller exercised her privilege not to testify pursuant to her Fifth Amendment rights. Miller was declared unavailable as a witness, a circumstance which sets up the former testimony hearsay exception. (Evid. Code, 1290 et seq.; see People v. Seijas (2005) 36 Cal.4th 291, 303, quoting People v. Smith (2003) 30 Cal.4th 581, 609; see also Crawford v. Washington (2004) 541 U.S. 36, 59, 68.) Millers preliminary hearing testimony was entered into evidence.

Appellant argues that the effect of the trial courts ruling deprived him of the opportunity to cross-examine and impeach Miller, therefore preventing appellant from presenting a full defense, a due process violation under Chambers v. Mississippi (1973) 410 U.S. 284.

A

In this case, appellant could not directly cross-examine Miller at trial because she asserted her Fifth Amendment right against self-incrimination by refusing to testify. After Miller was declared unavailable, her preliminary hearing testimony was read into evidence. There is no dispute on appeal as to the correctness of the courts finding Miller unavailable for trial or admitting her preliminary hearing testimony into evidence.

Preliminary hearing testimony is admissible under Evidence Code section 1291, subdivision (a)(2) where a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant . . . . (People v. Seijas, supra, 36 Cal.4th at p. 303, quoting People v. Smith, supra, 30 Cal.4th at p. 609; see also Crawford v. Washington, supra, 541 U.S. at p. 59, 68.) The defendants interest and motive in cross-examining the witness at the preliminary hearing must be similar to his interest and motive at subsequent hearings. (People v. Smith, supra, 30 Cal.4th at p. 611; see also People v. Cudjo (1993) 6 Cal 4th 585, 618 [right to confront a witness not violated where, notwithstanding tactical considerations, defendants interest and motive in cross-examining witness during preliminary hearing testimony is essentially the same as defendants interest and motive in cross-examining at trial].) Here, the defense had the opportunity to, and did cross-examine Miller during the preliminary hearing in an effort to discredit her testimony that she worked as a prostitute for appellant. The defense was made aware of the existence of the ledger before the preliminary hearing testimony and had the opportunity to question Miller regarding the ledger entries at that time. Appellant had the opportunity to adequately cross-examine Miller, and the cross-examination performed during the preliminary hearing was also entered into evidence.

The inability to cross-examine Miller at trial due to her unavailability as a witness does not invoke Chambers. As the California Supreme Court has observed, neither due process nor Chambers v. Mississippi has led the high court to question[] the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliabilityeven if the defendant would prefer to see that evidence admitted. (People v. Yeoman (2003) 31 Cal.4th 93, 141-142, quoting Crane v. Kentucky (1986) 476 U.S. 683, 690).

B

The trial court refused to admit the ledger into evidence, finding that it could not be authenticated, was not material, and even if otherwise relevant, its probative value was outweighed by its potential to prejudice the jury against the appellant. Appellant argues that either the prosecution or the trial court should have offered immunity to Miller so that she could testify and authenticate the ledger. The prosecution is under no obligation to offer immunity; it chose to exercise its right not to extend immunity in this case. (People v. Samuels (2005) 36 Cal.4th 96, 127; People v. Hunter (1989) 49 Cal.3d 957, 973.)

The California Supreme Court has not decided whether a trial court is authorized to grant immunity where the prosecutor does not. (People v. Stewart (2004) 33 Cal.4th 425, 468.) But in Stewart, the court concluded that even assuming the existence of such authority, defendants would be entitled to compel the grant of immunity to witnesses only in stringently limited situations. (Ibid.) There is no evidence here that suggests this case meets the stringent limitations suggested in Stewart. A trial court might be authorized to grant immunity where the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence, thereby distorting the judicial factfinding process. (People v. Stewart, supra,33 Cal.4th at p. 470, quoting People v. Hunter, supra, 49 Cal.3d at p. 975.) In this case, the prosecution did not distort the fact-finding process by granting immunity only to favorable witnesses; it did not grant immunity at all.

Appellant also argues that the ledger could have been authenticated via a handwriting sample. The trial court refused to compel Miller to produce a handwriting exemplar. There is authority that an order requiring the production of a handwriting exemplar would not violate the Fifth Amendment rights of a witness. (Gilbert v. California (1967) 388 U.S. 263, 266-267.) However, no showing was made that compelling Miller to produce an exemplar was the only way the ledger could have been authenticated. There is, for example, no evidence that the defense explored the existence of potential handwriting exemplars by Miller, such as drivers licenses or applications, in order to authenticate the ledger.

More fundamentally, the trial court found that the ledger was not material and had very little probative value. The trial court determined that the nature of such entries was speculative, observing that we dont really know what those contacts are. The trial court also stated that Miller does seem to have a log of payments that she obtained for services rendered. What the services are, I dont know. Whether theyre services or whether theyre middleman or whether they are other people collecting on her behalf, I dont know. . . . [T]hats pure speculation and supposition. Appellant argues, and argued during trial, that the ledger could have been used to show admissions and prior inconsistent statements in [the ledger] about dates, about contact with other escort agencies and so forth. But counsel did not provide any specific example of how the ledger might be used in that manner; vague references to the ledgers contents do not provide proof of materiality.

Appellant also argues the ledger should have been admitted for non-hearsay purposes under Evidence Code section 356 because it was necessary for the understanding of Millers preliminary hearing testimony. The trial court found that the ledger entries were speculative, and if anything, tended to show that Miller was a prostitute, a conclusion entirely consistent with her preliminary hearing testimony. The ledger was not shown to clarify Millers testimony or otherwise fall within the scope of Evidence Code section 356, whose purpose is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. (People v. Arias (1996) 13 Cal.4th 92, 156.)

Finally, while the trial court did not specifically cite Evidence Code section 352, it is evident that the court was concerned with the problem of undue prejudice being created if the ledger were introduced into evidence. Even if the ledger was authenticated and material, it contained several entries under the name Peter (appellants name). The court ruled that any inferences that the ledger entries referred to appellant would be very damaging to appellants case while providing limited, if any, insight into Millers testimony.

Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . (b) create substantial danger of undue prejudice . . . . The trial court has wide discretion when determining whether Evidence Code section 352 precludes the admission of evidence, and its exercise of discretion will be disturbed on appeal only if the courts decision exceeded the bounds of reason. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1366-1367.) The court determined that the ledger had minimal probative value and might have led jurors to infer that payments recorded referred directly to appellant. Inferences that appellant was indeed receiving payments from Miller for services rendered would be unduly prejudicial to appellants case. Because the ledgers potential undue prejudicial effects outweighed its probative value, the court did not abuse its discretion to refuse admission of the ledger under Evidence Code section 352.

DISPOSITION

The judgment of conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] Miller invoked her Fifth Amendment right not to testify during the trial. Since she was declared unavailable as a witness under Evidence Code section 240, subdivision (a)(1), her preliminary hearing testimony was read into the record.