Filed 3/1/18 P. v. Peterson CA4/3





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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

ALFONSO KEE KEE PETERSON,

Defendant and Appellant.


G053721

(Super. Ct. No. 15NF1847)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Nancy E. Zeltzer, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Alfonso Kee Kee Peterson of attempted human trafficking of a minor (Pen. Code, §§ 236.1, subd. (c)(1), 664, subd. (a) [count 1]; all statutory citations are to the Penal Code), pandering (§ 266i, subd. (a)(1) [count 2]), and attempted pimping (§§ 266h, subd. (a), 664, subd. (a) [count 3]). Peterson challenges the sufficiency of the evidence to support the pandering, attempted human trafficking, and attempted pimping convictions. He also argues we must reverse his conviction for attempted pimping because it is a lesser included offense of attempted human trafficking. For the reasons expressed below, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
In June 2015, Emad Mitry, an investigator with the Orange County Sheriff working for the Orange County Human Trafficking Task Force, maintained social media profiles on various Web sites to monitor and communicate with individuals involved in the subculture of human trafficking, prostitution, and pimping. Mitry created a profile on a dating Web site called “tag.com” posing as a 19 year-old female named Jen R. (Jen).
On June 19, 2015, Peterson, using the name “Daddy J,” sent Jen a friend request. Mitry accepted the request, which gave him access to Peterson’s profile. Jen messaged Peterson through tag.com, saying, “What’s up?” Peterson responded, “What’s up, let’s make magic. Are you busy?” Jen asked for clarification, and Peterson responded, “Money, love, and sex.” Jen asked for further clarification, and Peterson responded, “30 times 500 equals 15,000 #Igotplans.” Peterson and Jen discussed how easy it was for Peterson to set up the tricks. Peterson sent Jen his phone number, and they began exchanging texts the next day. They continued to exchange text messages through July 2, 2015.
During these conversations, Jen told Peterson she was actually 17 years old. Peterson asked for a photograph, but Jen refused and asked Peterson if he was a police officer. Peterson responded, “I’m starting to think you the feds now . . . .” Jen told Peterson she did not want to get arrested.
Peterson told Jen he planned to obtain hotel rooms and utilize the Internet to solicit clients. According to Mitry, it is common practice for pimps and human traffickers to advertise their prostitutes on the Internet. Peterson offered Jen guidance and protection. In their discussions, Jen told Peterson she was working as a prostitute by telling him she was “on the track” and on one occasion, Jen informed Peterson she made $250 from working as a prostitute. Peterson suggested they use the money to get a hotel room and he would act as her pimp.
Peterson attempted to set up a meeting with Jen on three occasions. On June 30, Peterson texted he would pick Jen up and get a hotel room. Mitry enlisted a female deputy, Naomi Hernandez, to pose as Jen. When she called Peterson, he explained his plan to obtain a hotel room and use the Internet to get work for Jen. Peterson used terms associated with the prostitution and pimping subculture, and mentioned well-known locations populated with prostitutes. He warned Jen not to discuss specifics over the phone, but told her she could make up to $1,000 a day. Jen told Peterson she was currently in Orange County, and Peterson suggested they meet. Peterson later cancelled the plan because it was “vice night,” meaning a law enforcement team combatting prostitution and pimping would be in the area.
On July 1, Jen texted she was stuck in Riverside with a friend, and she could not get a hotel room because she was only 17. Peterson texted he did not “need a hoe who can’t respect a pimp’s direction” and claimed he was a better option than a guerilla pimp, which was a common recruiting tactic for pimps.
On July 2, Jen texted Peterson she was back in Orange County, and Peterson told her to take a bus to his place of employment in Long Beach so they could get a room during his work break. Mitry set up a task force to arrange Peterson’s arrest. Jen asked for a specific meeting location, and Peterson directed her to a fast food restaurant across the street from a hospital. As undercover officers surveilled him inside the restaurant, he texted Jen his break was almost over. The task force officers apprehended Peterson and retrieved his iPhone. Peterson voluntarily gave them his password.
Peterson told investigators he met Jen on tag.com, believed she was a prostitute, and thought she contacted him to “hookup and chill.” Confronted with his texts regarding $500, Peterson claimed the amount related to how much money he made as a security guard. He told officers Jen was 19, and when confronted with a printed dialogue of their text conversations showing Jen stating she was 17, Peterson claimed he did not recall the conversation.
Mitry obtained a search warrant for Peterson’s cell phone and tag.com profile, and searched Peterson’s profile pictures, text messages between Peterson and Jen, and Peterson’s browser history. Peterson saved Jen’s number in his phone under the contact name “Yung Hoe,” and his browser history revealed searches for bus or train routes from Orange County to Long Beach. The photographs posted to Peterson’s tag.com profile included stacks of money, an image with the phrase “choose up,” which Mitry stated referred to a female prostitute selecting her pimp, an image with the phrases “a real one needs a real one” and “choose daddy,” and an image with the phrase “take risk and prosper,” abbreviated as TRAP. Mitry opined based on the evidence and his training and experience, Peterson was attempting to pimp and pander a minor into the human traffic world.
In April 2016, the jury convicted Peterson as noted above. In June 2016, the court imposed a midterm four-year prison sentence for pandering, and stayed the imposed terms for the other offenses. The court also imposed various fines and fees and ordered Peterson to register as a sex offender pursuant to section 290.
II
DISCUSSION
A. Sufficiency of the Evidence on the Conviction for Pandering
Peterson contends the evidence is insufficient to support his conviction for pandering (§ 266i, subd. (a)(1) [count 2]). The information charged Peterson as follows: “On or about and between June 19, 2015 and July 02, 2015, in violation of section 266i (a)(1) of the Penal Code (pandering by procuring), a felony, Alfonso Kee Kee Peterson did unlawfully procure Jane Doe for the purpose of prostitution.” Section 266i, subdivision (a)(1), provides, “any person who . . . [p]rocures another person for the purpose of prostitution” is guilty of pandering. (§ 266i, subd. (a)(1). The court instructed the jury with CALCRIM No. 1155, which explained the prosecution was required to prove Peterson used promises or any device or scheme to cause, persuade, encourage or induce Jen to become a prostitute and he must have intended to influence her to be a prostitute. The jury was told Peterson’s efforts need not have been successful, and it did not matter whether Jen was a prostitute or an undercover police officer. Peterson argues there was insufficient evidence because there “was no definitive agreement with respect to the actual arrangements” and he and Jen had “merely preliminary discussions.”
On appeal, we must view the record in the light most favorable to the judgment below. (People v. Elliot (2005) 37 Cal.4th 453, 466.) The test is whether substantial evidence supports the verdict. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Johnson (1980) 26 Cal.3d 557, 577-578.) The question is whether the evidence is of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Albillar (2010) 51 Cal.4th 47, 60.) It is the jury’s exclusive province to weigh the evidence, assess the credibility of the witnesses, and resolve conflicts in the testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) The appellate court must presume in support of the judgment the existence of facts reasonably drawn by inference from the evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 139; see People v. Stanley (1995) 10 Cal.4th 764, 792 [same deferential standard of review applies to circumstantial evidence].) The fact that circumstances can be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.) Consequently, an appellant “bears an enormous burden” in challenging the sufficiency of the evidence. (Sanchez, at p. 330.)
As explained in People v. Zambia (2011) 51 Cal.4th 965 (Zambia), a person may be convicted of pandering by encouraging an undercover officer posing as a prostitute to engage in future acts of prostitution. (Id. at p. 972.) “Our courts have repeatedly [held] . . . the phrase ‘to become a prostitute’ includes both recruiting someone to enter the prostitution trade for the first time and encouraging an existing prostitute, or an undercover officer, to work for him or someone else under some type of new business relationship.” (Id. at p. 973.) Zambia observed that “when a pimp offers protection and support to a prostitute in return for some or all of her income, the offer increases the likelihood that the prostitute will be able to maintain or expand her activities, an outcome squarely at odds with the statutory goal.” (Id. at p. 974.) “Subdivision (a)(1), . . . of section 266i, . . . plainly envision[s] that any solicited ‘person,’ whether an active prostitute or not, may be the target of unlawful pandering. The plain intent and purpose behind all the provisions of section 266i, taken together, is to deter pimps or others from establishing new working relationships in the unlawful prostitution trade. Our appellate courts have long recognized that California’s pandering statute “‘cover[s] all the various ramifications of the social evil of pandering and include[s] them all in the definition of the crime, with a view of effectively combating the evil sought to be condemned.’” [Citation.]” (Id. at p. 978.)
Ample evidence supports the jury’s decision Peterson encouraged Jen to engage in acts of prostitution. The jury reasonably could infer from the evidence he offered his services as a pimp by telling her he would provide protection and money if she allowed him to market and manage her services, which also showed he specifically intended to influence her to engage in acts of prostitution. (See Zambia, supra, 51 Cal.4th at p. 980 [pandering requires specific intent to influence a person to engage in prostitution.) Peterson told Jen he would find her work on the Internet and that it would be easy for him to set up the tricks for her. He told her he wanted “5 bands” or $5,000 out of the relationship. He claimed she could make $1,000 a day with him and promised he would take care of her. He offered protection and guidance, and he explained he would get her a room with the $250 she had earned recently as a prostitute so she could service other customers. His attempt to arrange three meetings with Jen, his text messages, recorded phone conversation, and statements to investigators show Peterson had a plan to prostitute Jen and he encouraged, persuaded, and assisted her to become a prostitute. Peterson’s efforts far exceeded his characterization of these actions as merely “preliminary discussions.”
Peterson also argues “[p]andering requires that an intended act [of prostitution] be with someone other than the defendant,” there was no evidence of customers “lined up for the purpose of prostitution,” and his intent “may well have been to have sex with Jen himself.” As noted, the court instructed pandering requires an intended act of prostitution with someone other than the defendant. Given his prior conversations with Jen, and his admission he got a room to set up tricks, ample evidence shows Peterson specifically intended Jen engage in prostitution with someone other than himself.
Finally, we reject Peterson’s claim he was guilty only of “attempted pandering.” (See § 664; People v. Charles (1963) 218 Cal.App.2d 812, 819.) Based on prior discussions of money and arranging tricks, culminating in his agreement to meet Jen in person on July 2, the jury reasonably could find he encouraged Jen to engage in acts of prostitution, and thus completed the crime.
B. Sufficiency of the Evidence on the Conviction for Attempted Human Trafficking
Peterson also argues there was insufficient evidence to support his conviction for attempted human trafficking. The information (count 1) alleged: “On or about and between June 19, 2015 and July 02, 2015, in violation of Section 664 (a) – 236.1 (c)(1) of the Penal Code (attempt – human trafficking of a minor), a felony, [] Peterson did unlawfully attempt to cause, induce, persuade and attempt to cause, induce, and persuade Jane Doe, a person under eighteen (18) years of age, to engage in a commercial sex act, with the intent to effect and maintain a felony violation of Section 266h and 266i of the Penal Code, pimping and pandering.”
Section 236.1 provides in relevant part: “(c) A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section . . . 266h [pimping] [or] 266i [pandering] is guilty of human trafficking.”
The court instructed the jury concerning attempted human trafficking as follows: “To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant attempted to cause or induce or persuade another person to engage in a commercial sex act; [¶]2. When the defendant acted, he [] intended to commit or maintain a felony violation of pimping or pandering; [¶] And [¶] 3. When the defendant did so, the other person was under 18 years of age. [¶] A commercial sex act is sexual conduct that takes place in exchange for anything of value. [¶] When you decide whether the defendant caused or induced or persuaded the other person to engage in a commercial sex act, consider all of the circumstances, including the age of the other person, his [] relationship to the defendant.” (CALCRIM No. 1244.) The court also instructed on pimping and attempts. (See § 266h, subd. (a) [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 person’s prostitution is guilty of pimping]; CALCRIM No. 460 [defining attempt]; see § 21a [“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission”]; People v. Kipp (1998) 18 Cal.4th 349, 376 [defendant’s actions must go beyond mere preparation].)
Peterson asserts “if the jury’s verdict on count 2 for pandering is upheld, then the jury’s verdict on count 1 must have been premised on the target offense of pimping . . . based on the fact the intent to commit or maintain the target offense was worded in the disjunctive in the jury instruction, e.g. pimping or pandering, and the pandering charge was found true as to count 2.” Building on this premise, he argues the evidence showed nothing more than mere preparation: “While there appears to be no question as to appellant’s knowledge that Jen was a prostitute, an issue arises with respect to whether appellant’s suggestion to Jen to meet him in Long Beach to get a room established that Jen was about to embark upon a transaction with someone other than appellant and derive proceeds therefrom, beyond the preparatory stage.”
As noted, Peterson was guilty of human trafficking if he attempted to cause, induce, or persuade a minor to engage in a commercial sex act with the intent to violate statutes proscribing pandering or pimping. It is unclear why the attempted human trafficking conviction “must have been premised on the target offense of pimping,” as Peterson asserts. The jury could have concluded Peterson both pandered (encouraged Jen with intent to influence her to engage in prostitution) and attempted to pimp her (acted intending to live or derive support or maintenance from Jen’s earnings or proceeds from prostitution). Because there was sufficient evidence he encouraged her to engage in prostitution, as noted above, the attempted human trafficking conviction stands.
In any event, substantial evidence demonstrates Peterson attempted to cause, induce, or persuade Jen to engage in a commercial sex act with the intent to effect or maintain a violation of the pimping statute. A person can be convicted of pimping where he knows another person is a prostitute and “‘lives or derives support or maintenance in whole or in part from the earnings or proceeds of [the person’s] prostitution.’” (People v. Smith (1955) 44 Cal.2d 77, 78; (Smith) see § 266h [“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 person’s prostitution, . . . or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping”]; CALCRIM No. 1150.) A person may violate the pimping statute by “soliciting compensation for soliciting for a prostitute” or by “receiving compensation for soliciting for a prostitute.” (Smith, at pp. 79-80.)
Peterson concedes he knew Jen was a prostitute, but claims his suggestion they get a room in Long Beach was insufficient to show “Jen was about to embark upon a transaction with someone other than appellant and derive proceeds therefrom, beyond the preparatory stage. . . . [¶] . . . [A]ppellant told Jen to take a bus to Long Beach, whereupon he would get a room on his break. While appellant may have told Logan he was getting a room to set up tricks, there was no indication he had secured a room or obtained tricks through the internet or otherwise for purposes of prostitution. There was no evidence which established he did anything beyond the suggestion of getting a room. Appellant was on a break from his security guard duties at Kaiser Hospital. Certainly, while on duty, it was unlikely he would be able to transact internet business to secure tricks and reap the benefit of Jen’s acts of prostitution. In short, there was nothing to suggest appellant’s statements were anything but antecedent preparation, and thus insufficient to constitute the required direct, ineffectual act.”
We disagree. The numerous exchanges between Peterson and Jen suggest an intent and plan to set up a pimp and prostitute relationship. Peterson admitted in his police interview he was getting a room to set up tricks. Sufficient evidence exists he acted in furtherance of a plan to pimp even if the prosecution did not present other evidence he actually obtained a room and lined up clients for Jen. (See People v. Reed (1996) 53 Cal.App.4th 389, 399 [defendant informed undercover detective he wanted to have sexual relations with her underage children and arranged to meet at a motel; act of walking into the motel room where he expected the children to be was “clearly a step beyond mere preparation for the crime, though it was not an element of the crime”].)
C. Sufficiency of the Evidence on the Conviction for Attempted Pimping
Peterson contends “a reversal on count 1, attempted human trafficking on the basis of pimping, requires a reversal of his conviction on count 3, attempted pimping.” Because we rejected his challenge to the attempted human trafficking conviction, Peterson’s claim fails. As noted above, substantial evidence supports the jury’s finding Peterson’s acts of pimping went beyond mere preparation. Peterson told Jen he would find her work on the Internet and it would be easy for him to set up the tricks for her. He told her he wanted “5 bands” or $5,000 out of the relationship, enticing her with the claim she could make $1,000 a day with him and his promise to take care of her. He offered protection and guidance, and would screen out potential undercover officers. He told her the plan was to get a room and secure tricks once they met in person, and promised to make the arrangements for the room with money she had earned from prostituting herself. His social media profile had several pictures depicting money and phrases common to the pimping and prostitution lifestyle. He complained to Jen on one occasion when she was unable to meet him that he did not “need a hoe who can’t respect a pimp’s direction.” Ample evidence supports the pimping conviction.
D. Attempted Pimping Is Not Lesser Included Offense of Attempted Human Trafficking
Peterson argues we must reverse his conviction for attempted pimping (count 3) as a lesser included offense of attempted human trafficking (count 1). Under a judicially-created exception to the general rule permitting multiple convictions, a defendant may not be convicted of separate crimes if one is a necessarily included offense of the other. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 (Reed); see §§ 954, 654.) An offense is necessarily included in another offense if the greater offense cannot be committed without also committing the lesser, or necessarily included, offense. (Ibid.) The court-created exception to the general rule permitting multiple convictions is based on the rationale that permitting conviction of both the greater and lesser offense in effect convicts the defendant twice of the lesser offense. (People v. Medina (2007) 41 Cal.4th 685, 702.) Courts apply the “elements” test in assessing the propriety of multiple convictions for offenses arising out of the same act or course of conduct. (Reed, supra, 38 Cal.4th at p. 1229.) Under the elements test, an offense is necessarily included in another offense if all the legal elements of one offense are included in the legal elements of the other offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034; see People v. Villegas (2012) 205 Cal.App.4th 642, 646 [claim of erroneous multiple convictions reviewed under independent standard of review].)
The statutory elements of human trafficking do not include all the elements of attempted pimping. As noted, section 236.1 provides in relevant part: “(c) A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section . . . 266h [pimping] [or] 266i [pandering] is guilty of human trafficking.” Section 266 prohibits living or deriving support or maintenance in whole or in part from the earnings of prostitution, or soliciting or receiving compensation for soliciting prostitution. A person can cause, induce, or persuade a minor to engage in commercial sex acts with the intent to effect or maintain a violation of the pimping or pandering sections without intending to derive financial support from prostitution. (See People v. Hicks (2017) 17 Cal.App.5th 496, 508 [while defendant must have the intent to violate section 311.4 subdivision (c), to commit human trafficking there is no requirement he actually do so; accordingly it is not necessary to commit the prohibited act offense to commit the trafficking offense].)
E. Section 290
Section 290 requires lifetime sexual offender registration for persons convicted of attempted human trafficking. Peterson argues if the court reverses his conviction for that offense, the lifetime registration requirement imposed at sentencing must be stricken. Because we do not reverse the conviction, there is no basis to reverse the registration order.
III
DISPOSITION
The judgment is affirmed.


ARONSON, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.