P. v. Smith
Filed 1/23/14 P. v. Smith CA4/1
OFFICIAL REPORTS
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prohibits courts and parties from citing or relying on opinions not certified
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN LAMAR
SMITH,
Defendant and Appellant.
D063100
(Super. Ct. No.
SCD239290)
APPEAL
from a judgment of the Superior Court of
San Diego County, Peter C. Deddeh, Judge.
Affirmed.
George
L. Schraer for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Steve Oetting, Andrew Mestman and Parag Agrawal, Deputy
Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Kevin
Lamar Smith appeals from a judgment of conviction after a jury convicted him of
one count of pandering and one count of pimping. Smith asserts that in order for his pandering
conviction to be upheld, there must be evidence that he encouraged the
prostitute with whom he was involved to change her business relationship by
ceasing to work as a prostitute for another person and working for him as a prostitute,
instead. Smith claims that there is
conviction for pandering because, he contends, the evidence demonstrates that
the prostitute in question decided to leave her pimp and form a relationship
with him of her own volition and without his inducement or encouragement. Smith also challenges his conviction for
pimping, arguing that the trial court prejudicially erred in not instructing
the jury with a pinpoint instruction he requested that would have told the
jury, in effect, that if it found that the prostitute gave Smith her money for
the purpose of holding it for her and not for his support, then the
pimping.
We
conclude that both of Smith's arguments are meritless. Smith's contention that the evidence is
insufficient to support his conviction for pandering is based on a
misinterpretation of recent Supreme Court authority concerning the pandering
statute. With respect to the trial court's
rejection of Smith's proposed pinpoint jury instruction, the trial court
appropriately rejected Smith's requested pinpoint instruction because the
proffered instruction was ambiguous and provided an incorrect description of
the law pertaining to the offense of pimping.
We therefore affirm the judgment.
II.
FACTUAL
AND PROCEDURAL BACKGROUND
A.
In
late January 2012, officers from the Vice Unit of the San Diego Police
Department were conducting an undercover "in-call" operation to
investigate prostitution in the Hotel Circle
area of San Diego. Detective William Kellner, who was
participating in the operation, found an online advertisement for an escort who
identified herself as "Chilli."
Kellner called the number in the advertisement. The woman who answered his call quoted him a
price of $140 for an hour and asked him to meet her outside a hotel. Kellner went to the hotel and met "Chilli." Once they were inside a hotel room, "Chilli"
agreed to have anal sex with Kellner for $200.
"Chilli" took off all of her clothes and asked Kellner to lock
the door to the room. At that point,
Kellner notified his team to come in.
Kellner's team knocked on the door and indicated that they were from the
San Diego Police Department.
Detective
Luke Johnson entered the hotel room and spoke with "Chilli," who was
subsequently identified as Amber H.
Amber indicated to Johnson that she was scared and told him about her
pimps, including Smith. Johnson looked
through the call logs of two of Amber's cell phones and saw several text
messages from Smith.
Amber
agreed to engage in a pretext telephone call with Smith. During the call, Amber told Smith that she
had made "400 boodles." Smith
said, "That's great. You had a
great night. You had a great night." He then told Amber that he was going to come to
the hotel room.
Amber
told Detective Johnson what Smith looked like and described his car. She also indicated that Smith's normal course
of action was to come and pick up money from her when she was finished with a
client. She said that Smith would pull
into the hotel parking area, drive around the hotel, and park in the last
parking spot next to the elevator.
Amber
explained to Detective Johnson that Smith had been nice to her when they first
met, but that he became violent two or three days after that. Amber described an incident in which Smith
choked her because she had not wanted to work but Smith wanted her to put an
advertisement on the internet. According
to Amber, Smith said that he would beat her if she did not place an online
advertisement. In addition, Smith got
angry when Amber did not do what he wanted her to do and "when the money
d[id]n't match the time." Later, at
the police station, Amber told Johnson that Smith was her pimp.
While
Johnson was talking with Amber, Detective Vincent Bales set up surveillance at
the hotel and waited for Smith to arrive.
Officers detained Smith and a female passenger who was with him when he arrived
at the hotel. When Detective Johnson
called a phone number that was listed as Smith's in Amber's cell phone, a cell
phone that police had found in Smith's car rang and identified the caller as "Chilli." The cell phone found in Smith's car contained
several photographs of Amber that had been used in her online advertisements
for prostitution.
At
trial, Amber testified about the events that preceded her arrest. According to Amber, in October 2011, she had
been living in an apartment with Louis Leonard, who was her pimp at the
time. She was using the internet to
advertise herself as a prostitute and was also working on El Cajon Boulevard. Amber's relationship with
Leonard began to disintegrate because of "domestic violence issues." Amber had tried to leave Leonard in the past,
but he would find her and punish her by having his caregiver, Charles Walser,
beat her.
Amber
first met Smith when Smith came to Leonard and Amber's apartment to play chess
with Walser. In November 2011, Smith's
visits to Leonard's and Amber's home increased in frequency. Leonard instructed Amber not to talk with
Smith, and advised her to "stay in pocket."
telephone number, which Walser provided.
In
early December 2011, Amber decided to leave Leonard. She packed a few things and used money she
had earned one day working as a prostitute to rent a room at a motel. Amber called Smith from the motel and told
him that she wanted to see him. Smith
came to the motel, and Amber performed oral sex on him. From that point on, Amber wanted to be around
Smith as much as possible. She believed
that Smith would be able to protect her if Leonard and Walser tried to come
after her.
After
Amber and Smith met at the motel, Amber continued to work as a prostitute. A few days later, Smith asked her when she
was going to start making money. Amber said
that she continued to work as a prostitute at that time because she was "attached
to the game," and because prostitution was the easiest way for her to earn
money. Amber gave Smith the money she
earned from prostitution. According to
Amber, she and Smith used the money for car payments, gas, and rent. Amber also said that some of the money was to
be saved so that she and Smith could get an apartment. Amber admitted that there were times when
Smith would beat her for "[m]oney, attitude, backtalk" and when "the
money doesn't match the time."
At
some point after Amber began working with Smith as her pimp, Leonard and Walser
found Amber and took her back to Leonard's apartment. Amber was pregnant. Walser beat Amber, kicking her and punching
her in the stomach. Amber eventually
managed to run away from the apartment and called Smith to pick her up. Amber began having complications with her
pregnancy. Smith took Amber to the
hospital, where she suffered a miscarriage.
Amber
was discharged from the hospital in mid-January 2012. Smith picked her up from the hospital. The doctor had told Amber that she should not
have sex for two weeks. She followed
these instructions for a day or two, but then went back to work. Smith had told
her that if she did not make money, she would not have a place to stay. Although Smith told Amber that she had to
work, he also said that "ultimately it would still be left up to her." Amber and Smith were arrested later that
month.
B.
The
relevant charging document is a third amended information that charges Smith
with one count of pandering by encouraging (Pen. Code, § 266i, subd. (a)(2);
count 1)
count 2). The charging document also
alleges that Smith had served two prior prison terms within the meaning of
section 667.5, subdivision (b), and that he had suffered two prior strike
convictions within the meaning of section 667, subdivisions (b) through (i) and
sections 1170.12.
title="">[4]
A
jury found Smith guilty on both counts.
In a bifurcated proceeding, the trial court found true the allegations regarding
Smith's prior strikes, and also found true one of the allegations that he had
served a prior prison term.
The
trial court sentenced Smith to a term of four years, doubled pursuant to the
three strikes law, on count 1, plus an additional year for the prior prison
term findings. The trial court imposed
and stayed the middle term of four years on count 2.
Smith
filed a timely notice of appeal.
III.
DISCUSSION
A.
support Smith's conviction for pandering
Smith
contends that the evidence is insufficient to support his conviction for
pandering by encouraging because, he claims, he did not cause, induce,
persuade, or encourage Amber to become a prostitute. Rather, according to Smith, it was Amber who
first contacted him and initiated a relationship.
"
'When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the
judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.' [Citation] '[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.'
[Citations.] '[I]t is the jury,
not the appellate court which must be convinced of the defendant's guilt beyond
a reasonable doubt.' [Citation.]" (People
v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.)
"In
deciding the sufficiency of the evidence, a reviewing court resolves neither
credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in
the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is
physically impossible or inherently improbable, the testimony of a single
witness is sufficient to support a conviction." (People
v. Young (2005) 34 Cal.4th 1149, 1181.)
Smith was
charged in count 1 with violating section 266i, subdivision (a)(2). Pursuant to this statutory provision, a
person is guilty of pandering if he or she "[b]y promises, threats,
violence, or by any device or scheme, causes, induces, persuades, or encourages
another person to become a prostitute."
(Ibid.) The trial court instructed the jury regarding
the offense of pandering, based on CALCRIM No. 1151, as follows:
"The defendant is charged in Count
1 with pandering Amber in violation of Penal Code section 266i.
"To prove that the defendant is
guilty of pandering, the People must prove that:
"1. The defendant used promises,
threats, violence, or any device or scheme to cause, persuade, encourage, or
induce Amber to become a prostitute;
"AND
"2. The defendant intended to
influence Amber to be a prostitute.
"It does not matter whether Amber
was a prostitute already.
"A prostitute is a person who engages in sexual intercourse or any
lewd act with another person in exchange for money or other compensation. A lewd
act means physical contact of the genitals, buttocks, or female breast of
either the prostitute or customer with some part of the other person's body for
the purpose of sexual arousal or gratification."
The Supreme
Court recently concluded that encouraging a person to "become a prostitute"
does not require that the potential target not have previously worked as a
prostitute, nor does it require that the defendant have encouraged a "virtuous"
woman to change her profession to prostitution.
Rather, the statute refers to encouraging the potential victim to "
'become a prostitute' in the future for the benefit of the encourager or some
other pimp"—i.e., to engage in future acts of prostitution. (People
v. Zambia (2011) 51 Cal.4th 965, 975 (Zambia).)
In
of the phrase, "to become a prostitute" in section 266i, subdivision
(a)(2). The defendant in
who was posing as a prostitute. Believing
that the undercover officer was already a prostitute, the defendant told her that
he was a pimp and promised her that if she gave him her money and worked for
him, he " 'would take care of [her].' " (Zambia,
supra, 51 Cal.4th at p. 970.) Appealing his conviction for pandering, the
defendant argued "that section 266i, subdivision (a)(2)'s phrase 'to
become a prostitute' does not include encouraging a person who is already a
prostitute, or is posing as one." (
response, the People argued that " 'to become a prostitute' [in
subdivision (a)(2) of section 266i] means to 'engage in any future acts of
prostitution,' regardless of the victim's status at the time of a defendant's
encouragement." (
In affirming the
defendant's conviction for pandering, the Supreme Court explained that with a
single exception, other courts had rejected the defendant's argument. (Zambia,
supra, 51 Cal.4th at p. 972.) As to the case that presented the "single
exception," People v. Wagner
(2009) 170 Cal.App.4th 499 (Wagner), the
Zambia court dismissed the Wagner
court's conclusion that section 266i, subdivision (a) excludes "efforts to
importune someone currently engaged in that profession to change management." (Zambia,
supra, at p. 976.) The
"The language of the pandering
statute describes current conduct on the part of the defendant: inducing and
encouraging. That current conduct is
aimed at producing subsequent conduct by the target: that the target thereafter
engage in acts of prostitution following a defendant's inducement or
encouragement. To encourage an
established prostitute to change her business relationship necessarily implies
that a defendant intends a victim 'to become a prostitute' in the future
regardless of her current status."
(Zambia, supra, at p. 975.)
Smith
contends that there is no evidence to demonstrate that he made any promises or
threats, or used any device or scheme, to get Amber to become his
prostitute. He asserts that "it was
Amber who first contacted and initiated a relationship with [him]," and
maintains that the record shows something akin to "reverse pandering,"
whereby Amber was the one who "induced or encouraged appellant to enter
into a romantic relationship with her, which also arguably led to a
pimp/prostitute relationship." In
making this argument, Smith contends that his case does not fit into the
pandering model found in
page 975. He states that "Amber was
already a prostitute when she first met appellant," and that "[a]ppellant
did not encourage Amber to change her business relationship" to be his
prostitute. Smith does admit, however,
that there is evidence that at some point in time, he "encouraged, caused,
persuaded and induced Amber to engage in acts of prostitution." In Smith's view, this is insufficient to
support a conviction for pandering.
Apparently relying on the
prostitute to change her business relationship" would be sufficient to constitute
pandering, Smith contends that pandering "applies to the establishment of
the relationship, not to its perpetuation." We disagree.
In
Zambia, supra, 51 Cal.4th at page 981, the court concluded 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, or undercover police officer." Contrary to Smith's position on appeal, the
encouraged another person to change his
or her business relationship in order to be considered to have encouraged that
person to engage in further acts of prostitution. Although the Zambia court ultimately determined that evidence that someone has
encouraged an established prostitute to change her business relationship is
is guilty of pandering, the Zambia court
did not hold that the encouragement of a change in a business relationship is
respect to the offense of pandering when the defendant's target has already
been engaged in acts of prostitution or is an established prostitute. The
statute is "inducing and encouraging" someone to "
supra, at p. 975.) Thus, pursuant to the authority of
engage in acts of prostitution in the future may be found guilty of pandering.
There
is substantial evidence to support a finding that Smith, by promises, threats,
violence, or by any device or scheme, caused, induced, persuaded, or encouraged
Amber to engage in acts of prostitution. Specifically, Amber testified that on the day that
she and Smith were arrested, she had not wanted to work as a prostitute, but
Smith choked her and told her that he wanted her to post an advertisement on
the internet.
title="">[6] Amber also testified that on another
occasion, she began prostituting herself a day or two after being released from
the hospital after suffering a miscarriage because Smith had told her that she
would not have a place to stay if she did not continue working as a prostitute.
instances provides sufficient evidence of Smith's pandering. We therefore affirm Smith's conviction on
count 1.
B.
pinpoint instruction that Smith requested
Smith
contends that his conviction for pimping in count 2 should be reversed because
the trial court erred in refusing to instruct the jury with his proposed
pinpoint instruction pertaining to how the money that Amber earned as a
prostitute was used.
1. Additional
background
Smith
was charged with pimping as set out in section 266h, subdivision (a). That statute 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 person's 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 punished by imprisonment in the state
prison for three, four, or six years."
The
trial court instructed the jury with respect to this offense with CALCRIM No.
1150, as follows:
"The defendant is charged in Count
2 with pimping Amber, in violation of Penal Code section 266h.
"To prove that a defendant is
guilty of pimping, the People must prove that:
"1. The defendant knew that Amber was a
prostitute;
"AND
"2. The money that Amber earned as a prostitute
supported defendant, in whole or in part;
"A prostitute is a person who engages in sexual intercourse or any
lewd act with another person in exchange for money or other compensation. A lewd
act means physical contact of the genitals, buttocks, or female breast of
either the prostitute or customer with some part of the other person's body for
the purpose of sexual arousal or gratification."
Smith's
attorney requested that the trial court instruct the jury with a pinpoint
instruction regarding the second element of the above instruction:
"If you find that Amber gave or
loaned Mr. Smith money that she earned from prostitution, for the purpose of
holding, saving or for any other purpose except for the purpose of being
supported or maintained by Amber, then it will be your duty to find Mr. Smith
. . . not guilty of count 2 Pimping (Pen. Code §266h).
"If you find Mr. Smith accepted
money from Amber for purposes other than for his support and maintenance, then
it will be your duty to find Mr. Smith . . . not guilty of
count 2 Pimping (Pen. Code §266h)."
The
trial court reviewed the authorities that defense counsel cited and declined to
give the instruction to the jury. The
trial court indicated that the court believed that other instructions
adequately covered the idea at issue in the proffered pinpoint instruction.
2. Analysis
"[L]egally
correct and factually warranted pinpoint instructions designed to elaborate and
clarify other instructions should be delivered upon request." (People
v. Hughes (2002) 27 Cal.4th 287, 362, italics omitted.) A trial court errs when it refuses to give
such an instruction. (
However, it naturally follows that "a trial court may properly
refuse an instruction offered by the defendant if it incorrectly states the
law, is argumentative, duplicative, or potentially confusing [citation], or if
it is not supported by substantial evidence [citation]." (People
v. Moon (2005) 37 Cal.4th 1, 30.)
"[A] claim
that a court failed to properly instruct on the applicable principles of law is
reviewed de novo." (
1107, 1111; see also People v. Posey
(2004) 32 Cal.4th 193, 218 [instructional error is reviewed de novo].)
The
trial court did not err in refusing to give the pinpoint instruction that Smith
requested because that instruction is ambiguous, and one reasonable
interpretation of the instruction constitutes an inaccurate statement of the law. Specifically, pursuant to Smith's proposed
instruction, if the jury found that some of the money that Amber gave Smith was
for the purpose of him holding it or saving it for her, then the jury could
find Smith not guilty, even if it determined that other money that Amber gave
Smith was for his support and maintenance.
Under section 266h, subdivision (a), a person is guilty of pimping if
that person knowingly "lives or derives support or maintenance in whole or
in part from the earnings or proceeds of [another person's] prostitution." The statute does not require that all of the
money that a prostitute gives to her pimp be used solely for the purpose of the pimp's support. The CALCRIM instruction that the trial court
gave to the jury in this case adequately and correctly identified these
elements for the jury. The proposed
pinpoint instruction inaccurately implies that if some of the money that Amber
gave Smith was for the purpose of him holding it for her, Smith was not guilty
of pimping. However, pursuant to the
statute, in order to find Smith guilty of pimping, the jury had to determine only
that some of the money that Amber earned as a prostitute was used to support
Smith. The trial court therefore properly
rejected the defense's proffered pinpoint instruction.
IV.
DISPOSITION
The
judgment is affirmed.
AARON, J.
WE CONCUR:
BENKE,
Acting P. J.
McDONALD,
J.
name="_ftn1" title="">[1] Leonard had muscular dystrophy and was disabled.
name="_ftn2" title="">[2] According to testimony at trial, to be "in
pocket" for a prostitute means to remain under the control of a particular
pimp and following that pimp's rules.
