P. v. Sigona
Filed 6/20/12 P. v.
Sigona CA4/1
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opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH
SIGONA, JR.,
Defendant and Appellant.
D058655
(Super. Ct. No. SCD225851)
APPEAL
from a judgment of the Superior Court of
County, Bernard E. Revak, Judge. (Retired judge of the San Diego Sup. Ct. assigned
by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Judgment affirmed.
Joseph
Sigona appeals from a judgment entered upon his conviction of two counts of pandering Hannah B.
and Bessie R. (counts 1, 2) and one count each of pimping (count 3) and
must be overturned because the trial court improperly instructed the jury. He also asserts that the pandering conviction
regarding Bessie must be overturned because the trial court improperly excluded
evidence. We reject his contentions and
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Because Sigona
does not challenge the sufficiency of the evidence to support his convictions,
we summarize the pertinent facts to provide background for our discussion of
his contentions on appeal.
In
February 2010, Bessie and Hannah, both 18 years old at the time, responded to
online ads Sigona had placed for girls to perform escort services. Both women testified at trial under a grant
of immunity and claimed that they never previously worked as a prostitute.
Bessie
testified that Sigona took photographs of her and posted an ad on the internet
for her services. He told her that
"full service" referred to intercourse, "half service" was
a "blow job" and that she would charge $160 a half hour and $200 an
hour, of which she would get $100 and Sigona would get the balance. Bessie later gave a client oral sex in
exchange for $200 and had vaginal intercourse with a second client for $160
plus a $40 tip. Bessie gave Sigona $100
for the first client and $60 for the second client.
Hannah
testified that she responded to Sigona's ad and emailed him photographs so that
he could place an ad for her. Sigona
then picked Hannah up because people had started responding to the ad. He told her that she would be offering
"full service" sexual intercourse to men at his condominium and that
she would charge $160 a half hour and $200 an hour, of which she would keep
$100. After Sigona received a call for
Hannah's services, Hannah returned the call and had Sigona take her to a hotel
in El Cajon. At the hotel, an undercover police officer
exposed himself to Hannah and asked if she would give him a "blow
job" and "full service."
After Hannah said yes, the officer gave her $200, and she was ticketed
for prostitution. She later pleaded guilty
to the offense.
I.
Alleged Instructional Error
A. Facts
A person may be guilty of pandering by procuring another person for the
purpose of prostitution (Pen. Code, § 266i, subd. (a)(1), undesignated
statutory references are to this code) or promising, threatening, using
violence, or by any device or scheme, causing, inducing, persuading, or
encouraging another person to become
a prostitute (§ 266i, subd. (a)(2)). In counts 1
and 2, the People charged Sigona with pandering by procuring another person for
prostitution in violation of subdivision (a)(1) of section 266i.
Thereafter,
without objection, the trial court instructed the jury with a version of
CALCRIM No. 1151 that included language for offenses under subdivisions (a)(1)
and (a)(2) of the statute. The
subdivision (a)(2) portion included an optional second element instruction on
the required specific intent for the inducement offense, namely that Sigona
intended to influence the women to "be" prostitutes. (See CALCRIM No. 1151, including Bench Notes.) Defense counsel, however, requested that the
word "specifically" be included so that the instruction read
that: "The defendant specifically
intended to influence Hannah B. to be a prostitute." The trial court denied the request.
B. Analysis
In
People v. Wagner (2009) 170
Cal.App.4th 499 (Wagner), the court
concluded that the pandering statute did not apply when the victim was already
working as a prostitute, because a person could not "become" a
prostitute if that person was already a prostitute. (Id.
at p. 510.) Relying on
must be overturned because the trial court improperly instructed the jury that
he merely had to intend that the girls "be" prostitutes rather than
"to become" prostitutes as required by the pandering allegation under
section 266i, subdivision (a)(2). He
asserts use of the wording "to be" rather than "to become"
in CALCRIM No. 1151 enabled the jury to convict him even if they found that
Bessie or Hannah were already prostitutes or that he believed that they were
already prostitutes. Sigona argues the
error is not harmless because the jury received evidence from which they could
have concluded that Bessie and Hannah were already prostitutes. (People
v. Flood (1998) 18 Cal.4th 470, 503-507 [Instructions that omit an element
of the offense are reviewed under the harmless error standard announced in
18.].)
Sigona
filed his opening brief prior to our Supreme Court publishing
Supreme Court expressly disapproved Wagner,
concluding that "the proscribed activity of encouraging someone 'to become
a prostitute,' as set forth in section 266i, subdivision (a)(2), includes
encouragement of someone who is already an active prostitute . . . ." (Zambia,
supra, at p. 981.) Sigona conceded in his reply brief that
disapproved Wagner, and relied on the
dissent in Zambia to
essentially argue the case was wrongly decided.
(See Zambia,
Kennard, J. & Werdegar, J.) His
reliance on the dissenting opinion in that case is not persuasive as we are
bound by the majority opinion. (
(1962) 57 Cal.2d 450, 455.) Accordingly,
we reject Sigona's argument that the version of CALCRIM No. 1151 given to the
jury misstated the law.
II.
A. Facts
At the
that after working with Sigona, she
personally placed escort ads for the purpose of selling sex. At trial, defense counsel sought to present
this evidence as character evidence.
Defense counsel also argued that the evidence was relevant to the
pandering charge by showing that Bessie decided to become a prostitute before
she contacted Sigona, to impeach her testimony that she made up an excuse for a
client to leave after 10 or 15 minutes because "it was gross," and
that excluding the evidence, among other things, violated his
witnesses. The trial court excluded the
evidence as inflammatory and irrelevant under Evidence Code section 352. Defense counsel later renewed his request,
but the trial court did not sway from its earlier ruling.
B. Analysis
A
defendant's constitutional right to a fair
trial includes the right to present all relevant evidence that is of
significant value to the defense case. (
926, 999.) Relevant evidence means
evidence, including evidence relevant to credibility, that has any tendency to
prove or disprove any disputed material fact.
(People v. Boyette (2002) 29
Cal.4th 381, 428.) We review a trial
court's evidentiary rulings for abuse of discretion. (People
v. Vieira (2005) 35 Cal.4th 264, 292.)
Application of the ordinary rules of evidence does not impair a
defendant's right to present a defense.
(People v.
Although completely excluding evidence of an accused's defense
theoretically could infringe on his right to present a defense, excluding
defense evidence on a minor or subsidiary point does not. (Ibid.)
Here,
Sigona contends the trial court erred by excluding evidence of Bessie's
subsequent acts of prostitution because the evidence was relevant to the
pandering charge as it suggested she worked as a prostitute before meeting him
and impugned her credibility regarding her innocence. We disagree.
Whether
Bessie acted as a prostitute before
she met Sigona was irrelevant to the pandering charge. (Ante,
part I.) Additionally, acts of
prostitution Bessie may have committed after
she worked with Sigona do not defeat the charge, nor do such acts conclusively
prove that Bessie lied at trial when she testified that she had never worked as
a prostitute before meeting
Sigona. To the extent the evidence had
any probative value regarding Bessie's character and credibility by suggesting
Bessie has always been a prostitute, we cannot conclude that the trial court
abused its discretion.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
