P. v. Johnson
Filed 2/3/10 P. v. Johnson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, Plaintiff and Respondent, v. STACEY DENISE JOHNSON, Defendant and Appellant. | B213868 (Los Angeles County Super. Ct. No. MA042706) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed as modified.
Cindy Brines, 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, Daniel C. Chang and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Stacey Denise Johnson, appeals from her conviction, after a jury trial, of felony controlled substance possession (Health & Saf. Code, 11350, subd. (a)) (count 1) and misdemeanor loitering to commit prostitution (Pen. Code, 653.22, subd. (a)) (count 2). Defendant admitted she had previously been convicted of a serious and violent felony within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12. Defendants motion to dismiss her prior felony conviction was denied. (Pen. Code, 1385, subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) She was sentenced to four years in state prison on count 1 (the mid-term of two years doubled pursuant to Penal Code sections 667, subdivisions (b) through (i) and 1170.12) and six months concurrent on count 2. Defendant was ordered to pay: a $200 restitution fine (Pen. Code, 1202.4, subd. (b)); a $200 parole revocation restitution fine (Pen. Code, 1202.45); and, with respect to count 1, a $50 criminal laboratory analysis fee. (Health & Saf. Code, 11372.5.) Defendant was found to be in violation of her probation in two misdemeanor cases. As to the two misdemeanors, probation was terminated. As modified in the trial court on July 16, 2009, defendant received credit for 143 days of presentence custody plus 70 days of conduct credit for a total presentence custody credit of 213 days.
II. DISCUSSION
A. Prior Conduct Evidence
Several sheriffs deputies saw defendant having a conversation with a male motorist and spoke to her. Deputy Paul Parkhurst asked defendant if she had anything illegal in her possession. Defendant admitted she did. Defendant admitted she had rock cocaine in her possession. Several law enforcement officers testified as to their prior observations of and contact with defendant, including conversations in which she admitted she was a prostitute. Defendant asserts: it was error to admit evidence of her prior conduct outside the six-month time limit of Penal Code section 653.22, subdivision (b)(5); even if some or all of the prior conduct evidence was admissible, it should have been excluded under Evidence Code section 352; and the violations of state evidentiary law were so egregious they violated her state and federal constitutional due process and fair trial rights.
Defendant argues Penal Code section 653.22, subdivision (b)(5) limits evidence of behavior indicative of prostitution to that occurring within six months of her arrest. The trial court ruled Penal Code section 653.22 did not limit the admissibility of prior conduct evidence under Evidence Code section 1101, subdivision (b) to prove intent. We construe Penal Code section 653.22 as a matter of law (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432) and agree with the trial courts conclusion.
Penal Code section 653.22 states: (a) It is unlawful for any person to loiter in any public place with the intent to commit prostitution. This intent is evidenced by acting in a manner and under circumstances which openly demonstrate the purpose of inducing, enticing, or soliciting prostitution, or procuring another to commit prostitution. [] (b) Among the circumstances that may be considered in determining whether a person loiters with the intent to commit prostitution are that the person: [] (1) Repeatedly beckons to, stops, engages in conversations with, or attempts to stop or engage in conversations with passersby, indicative of soliciting for prostitution. [] (2) Repeatedly stops or attempts to stop motor vehicles by hailing the drivers, waving arms, or making any other bodily gestures, or engages or attempts to engage the drivers or passengers of the motor vehicles in conversation, indicative of soliciting for prostitution. [] (3) Has been convicted of violating this section, subdivision (a) or (b) of Section 647, or any other offense relating to or involving prostitution, within five years of the arrest under this section. [] (4) Circles an area in a motor vehicle and repeatedly beckons to, contacts, or attempts to contact or stop pedestrians or other motorists, indicative of soliciting for prostitution. [] (5) Has engaged, within six months prior to the arrest under this section, in any behavior described in this subdivision, with the exception of paragraph (3), or in any other behavior indicative of prostitution activity. [] (c) The list of circumstances set forth in subdivision (b) is not exclusive. The circumstances set forth in subdivision (b) should be considered particularly salient if they occur in an area that is known for prostitution activity. Any other relevant circumstances may be considered in determining whether a person has the requisite intent. Moreover, no one circumstance or combination of circumstances is in itself determinative of intent. Intent must be determined based on an evaluation of the particular circumstances of each case. (Italics added.) Evidence Code section 1101, subdivision (b), governs the use of character evidence, including specific acts, to prove intent. Evidence Code section 1101, subdivision (b) states: Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as . . . intent . . .) other than [the persons] disposition to commit such an act.
By its plain and clear terms (Imperial Merchant Services, Inc. v. Hunt, supra, 47 Cal.4th at pp. 387-388; People v. Lopez (2003) 31 Cal.4th 1051, 1056; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798), Penal Code section 653.22 describes circumstances that may be considered among other relevant evidence in determining intent to commit prostitution. Penal Code section 653.22, subdivision (c) expressly states, The list of circumstances set forth in subdivision (b) is not exclusive. (Italics added.) Penal Code section 653.22 plainly and clearly does not say no evidence of behavior indicative of prostitution activity that occurred more six months prior to arrest may under any circumstances be introduced. There is no merit to defendants argument Penal Code section 653.22 absolutely barred the trial court from admitting the challenged evidence.
We asked the parties to brief the question whether defendant forfeited her Evidence Code section 352 and constitutional due process or fair trial objections by failing to raise them in the trial court. Defendant argues she preserved the Evidence Code section 352 objection even though it was never specifically raised as required by Evidence Code section 353, subdivision (a). She reasons the trial court conducted an Evidence Code section 352 analysis. (See People v. Scott (1978) 21 Cal.3d 284, 290; accord, People v. Samuels (2005) 36 Cal.4th 96, 120; People v. Diaz (1992) 3 Cal.4th 495, 528.) Further, she contends her Evidence Code section 352 objection preserved her constitutional claims. (See People v. Partida (2005) 37 Cal.4th 428, 431, 433-439; accord, People v. Thornton (2007) 41 Cal.4th 391, 443; People v. Huggins (2006) 38 Cal.4th 175, 199-200.) We disagree. Defendant did not raise any objection premised on Evidence Code section 352, not even an inadequately phrased one. (See People v. Samuels, supra, 36 Cal.4th at p. 120; People v. Scott, supra, 21 Cal.3d at p. 290.) That the trial court engaged in an analysis pursuant to Evidence Code section 352 did not preserve the issue for appeal. (See People v. Zamudio (2008) 43 Cal.4th 327, 354; People v. Partida, supra, 37 Cal.4th at p. 435; People v. Seijas (2005) 36 Cal.4th 291, 302.)
B. Fees, Assessments, Surcharge and Penalties
We asked the parties to brief the question whether any additional fees, penalty assessments, or a surcharge should have been imposed. The clerks transcript and the abstract of judgment include fees and assessments that were not orally imposed. But the oral pronouncement of judgment controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) The trial court should have imposed and the judgment must be amended to reflect a $20 court security fee for each of defendants two convictions for a total of $40. (Pen. Code, 1465.8, subd. (a)(1); People v. Walz (2008) 160 Cal.App.4th 1364, 1372; People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) In addition, the Health & Safety Code section 11372.5, subdivision (a) criminal laboratory analysis fee is a fine (People v. Martinez (1998) 65 Cal.App.4th 1511, 1522; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1332) and as such is subject to additional assessments, a surcharge and penalties as follows: a $50 state penalty assessment under Penal Code section 1464, subdivision (a)(1); a $35 county penalty assessment pursuant to Government Code section 76000, subdivision (a)(1); a $10 Government Code section 76000.5, subdivision (a)(1) county additional penalty assessment for emergency medical services; a $10 state surcharge under Penal Code section 1465.7, subdivision (a); a $15 Government Code section 70372, subdivision (a)(1) state court construction penalty (the amount payable in Los Angeles County); a $5 deoxyribonucleic acid penalty pursuant to Government Code section 76104.6, subdivision (a)(1); and a $5 deoxyribonucleic acid state-only penalty under Government Code section 76104.7, subdivision (a). (People v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530.) The judgment must be modified to include the foregoing. Further, upon remand, the trial court is to personally insure the clerk accurately prepares a correct amended abstract of judgment that reflects the modifications to the judgment we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426; People v. High (2004) 119 Cal.App.4th 1192, 1200.)
IV. DISPOSITION
The judgment is modified to include the additional penalty assessments, the surcharge, and fees set forth in the body of this opinion. Upon remittitur issuance, the clerk of the superior court is to prepare an amended abstract of judgment reflecting the modifications and forward a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J. KRIEGLER, J.
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