P. v. Watkins





















Filed 7/2/12
P. v. Watkins CA3













NOT TO BE PUBLISHED







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Sacramento)

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>

THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEONARD WATKINS, Defendant and Appellant.

C067268 (Super. Ct. No. 10F00343)

Defendant
Edward Leonard Watkins and acquaintance Jaquann Garrett were pimps. One underage girl who Garrett pimped was
Faith. Faith would prostitute herself in
Oakland and Stockton, and it was Garrett who encouraged her, dropped her off at the
streets where she prostituted herself, and took half her earnings. Sometimes defendant and two other prostitutes
named Kream and Cherry were with Garrett and Faith in the car. Kream and Cherry also prostituted themselves
on the streets of Oakland, and they gave their earnings to defendant. On one occasion (resulting in the charged
acts), they all took defendant’s car to Sacramento where
Faith, Kream, and Cherry were going to prostitute themselves on Watt Avenue and
defendant and Garrett and would “get [the] money.” Later that day, Faith, Kream, and Cherry used
a motel room defendant had rented for prostitution. Defendant and Garrett were arrested in the
parking lot of the motel.

Defendant
was charged with both pimping and pandering.href="#_ftn1" name="_ftnref1" title="">[1] A jury found defendant
guilty of pimping Faith (on a theory he aided and abetted Garrett), pandering
Kream, and attempting to pimp Kream.

Defendant
appeals from the resulting conviction, raising contentions relating to the
instructions and his presentence credits.
Finding no merit in these contentions, we affirm.

DISCUSSION

I

>The Giving Of CALCRIM No.
375

>Did Not Affect Defendant’s
Substantial Rights

The
court instructed pursuant to CALCRIM No. 375, which allowed the jury to
consider evidence of defendant’s uncharged acts of pimping or pandering Kream
and Faith in other jurisdictions to infer his intent to pimp in this case or
his motive to commit the offenses in this case.href="#_ftn2" name="_ftnref2" title="">[2] Defendant raises two
contentions with respect this instruction.
One, he contends the instruction was not supported by substantial
evidence in violation of his federal constitutional
rights because there was no evidence defendant pandered Kream in other
jurisdictions. Two, he contends the
instruction incorrectly implied there was prior-act evidence defendant aided
and abetted Garrett’s pimping of Faith, also in violation of his federal
constitutional rights. Defendant’s
contentions lack merit because his substantial rights were not affected by this
instruction.

Defendant
did not object to this instruction in the trial court, so the only way he can
raise these contentions on appeal is if his “‘substantial rights . . . were
affected thereby.’ Substantial rights
are affected if the error ‘result[s] in a miscarriage of justice, [i.e.,]
making it reasonably probable defendant would have obtained a more favorable
result in the absence of error.’” (>People v. Elsey (2000) 81 Cal.App.4th
948, 953, fn. 2.) There was no such
reasonable probability here.

As
to defendant’s first contention, if the jury viewed the evidence in the same
way as defendant does and indeed found there was no evidence that defendant pandered
(as opposed to pimped) Kream on prior occasions, then there was no prejudice to
defendant. The instruction itself stated
as follows: “You may consider this
evidence only if the People have proved by a preponderance of the evidence that
the defendants in fact committed the uncharged offenses. . . . [¶]
If the [P]eople have not met this burden, you must disregard this
evidence entirely.” Here, if there
indeed was no evidence defendant pandered Kream in other jurisdictions, then
the jury would not have formed any inference from that nonexistent
evidence. (See People v. Bramit (2009) 46 Cal.4th 1221, 1247 [“Absent any contrary
indication, we presume the jury followed the instruction”].)

As
to defendant’s second contention, which is the instruction incorrectly implied
there was evidence he had aided and abetted Garrett’s pimping of Faith on
occasions prior than the charged acts, there was no such implication. The relevant part of the instruction stated
as follows: “The People presented
evidence of other behavior by the defendant that was not charged in this case
that the defendants engaged in pimping and pandering of Faith . . . and [Kream]
in other jurisdictions.” From this
language, defendant argues the instruction “created an improper inference that
his past conduct constituted aiding and abetting Mr. Garret’s pimping of
Faith.” However, nowhere in this
instruction does the term “aided and abetted” appear. The concept of aiding and abetting was
presented to the jury, but this concept did not apply to the uncharged
act. The aiding and abetting instruction
here specifically stated, “This instruction [i.e., the aiding and abetting
instruction] applies to Counts One and Three and the lesser offenses within those
counts of attempted pimping.”

II

>The Intent Element Of
Pandering Was

>Correctly Articulated Here

Defendant
contends the People failed to prove and the court failed to instruct on what he
claims was an essential element of pandering, i.e., he specifically intended to
establish a new working relationship with Kream.href="#_ftn3" name="_ftnref3" title="">[3] He bases these contentions
on People v. Zambia (2011) 51 Cal.4th
965. As we explain, Zambia does not support defendant’s contentions.

>Zambia held that “the proscribed
activity of encouraging someone ‘to become a prostitute,’ as set forth in
[Penal Code] section 266i, subdivision (a)(2), includes encouragement of
someone who is already an active prostitute . . . .” (People
v. Zambia, supra, 51 Cal.4th at
p. 981.) In so holding, the court
explained, “Subdivision (a)(1), and (a)(3) through (a)(6), of section 266i,
when harmonized and read together in context, plainly envision 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.” (>Zambia, at p. 978.)

It
is from this last sentence defendant gleans that Zambia articulated the intent requirement that he claims was not
met here. Defendant reads >Zambia incorrectly. The court’s sentence quoted above described
the intent and purpose behind the law; it did not articulate the intent element
of the crime. That occurred later in the
opinion as follows: “We clarify here
that pandering is a specific intent crime.
Its commission requires that a defendant intend to persuade or otherwise
influence the target ‘to become a prostitute’” as that phrase has been
interpreted here. This construction of
section 266i, subdivision (a)(2) effectuates the purpose and intent of the
pandering statute, which is to criminalize the knowing and purposeful conduct of any person seeking to encourage
‘another person’ to work with the panderer or another pimp in plying the
prostitution trade.” (>People v. Zambia, supra, 51 Cal.4th at p. 980.)
Consistent with this articulation of the intent requirement, the jury
was correctly instructed here it had to find that “[t]he defendant intended to
influence [Kream] to be a prostitute.”
The People therefore did not to have to provide evidence defendant
intended to establish a new working relationship with Kream.

III

>The Court Calculated
Defendant’s Credits Correctly

Defendant
contends he is entitled to one more day of presentence custody credit and a
corresponding two more days of presentence conduct credit. He argues the court’s error in calculating
his credit arose because it failed to credit him for the day of his arrest, as
he was not booked into jail until early the next morning. We find no error.

Defendant
is entitled to receive presentence custody credit for time spent in a jail or
“similar residential institution” before the sentence is imposed. (Pen. Code, § 2900.5.) The term “custody,” as that term is applied in
Miranda v. Arizona (1966) 384 U.S.
436 [16 L.Ed.2d 694], is inapplicable in determining custody credit for time
served under Penal Code section 2900.5.
(See People v. Ravaux (2006)
142 Cal.App.4th 914, 919-921.) Here, the
trial court properly awarded the credit here, because that credit commences on
the day a defendant is booked into jail.
(Id. at pp. 919-920.) We find Ravaux
on point and decline defendant’s invitation to revisit that authority.

DISPOSITION

The
judgment is affirmed.







ROBIE , Acting P. J.







We concur:







DUARTE , J.







HOCH , J.