P. v. Bridges

Filed 5/23/08 P. v. Bridges CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Darlene E. Schempp, Judge. Affirmed.

Ronald White for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Arlene M. Games, Deputy Attorney General, for Plaintiff and Respondent.

__________________________________

Eddie Bridges appeals from the judgment entered following a jury trial in which he was convicted of pandering by procuring a minor under the age of 16 (Pen. Code,  266i, subd. (b)(2)), pimping a minor under the age of 16 (id.,  266h, subd. (b)(2)), pandering by procuring (id.,  266i, subd. (a)(1)), and pimping (id.,  266h, subd. (a)). He was sentenced to eight years in prison and contends that the evidence was insufficient to support his conviction, evidence of uncharged acts of misconduct should have been excluded, his request to relieve counsel was improperly denied, and his rights were violated when he was absent from the courtroom during a critical stage of the trial. We affirm.

BACKGROUND

Fourteen-year-old Kimberly G., who had worked as a prostitute in San Francisco, arrived in Los Angeles on March 21, 2006, in the company of her boyfriend. While walking the streets in Hollywood that night, a car pulled up with two people inside. Defendant, who was the passenger, told Ms. G. that white was right and she was too gorgeous to be on the track with African-American prostitutes. Defendant said he wanted to talk to Ms. G. and asked her name and age. Ms. G. said she went by Gigi and that she was 19. Defendant asked Ms. G. for identification. She said she did not have any. Ms. G. assumed that defendant was a pimp. She got into the car in which he was riding and was taken to defendants apartment in Studio City.

While at defendants apartment, defendant asked Ms. G. for her boyfriends telephone number so he could verify her age. After a few minutes on the phone with Ms. G.s boyfriend, defendant said, Okay, I got her. To Ms. G., this meant that she had left one pimp (her boyfriend) for another (defendant). Thereafter, Ms. G. lived with defendant at his apartment. Other women who worked for defendant also lived there. Defendant paid for Ms. G.s room and board while she worked for him as a prostitute, meeting customers through advertisements she had posted on the Internet.

A Los Angeles police officer who was working undercover investigating Internet prostitution saw one of Ms. G.s postings on the Craigslist Web site, called to make an appointment, and met Ms. G. in a motel room. They negotiated a half-hour sexual encounter for $200, and Ms. G. was arrested. Ms. G. first denied that she worked for anyone but later told officers that defendant was her pimp. Defendants conduct with Ms. G. provided the basis of the crimes of which defendant was convicted.

The prosecution further presented the testimony of Los Angeles County Deputy Sheriff Deanna Ballesteros. Ballesteros testified that in November 2004, she was working as a decoy in an undercover sting operation based in a motel in Compton, seeking to arrest customers of prostitutes. On the afternoon of November 11, defendant approached her and said, Whats up baby, damn you are good. Defendant asked Ballesteros her name (she said she was called Dee) and said, Im a businessman. You know what I mean? and you can make me a lot of money. When Ballesteros asked what she would get, defendant responded, You will stay with me instead of this fucked up place and I will take care of you. You just have to continue doing what youre doing.

Defendant did not present any evidence in his defense.

DISCUSSION

1. Sufficiency of the Evidence

Defendant contends that the evidence was insufficient to support the judgment. The basis of his contention is that Ms. G. was not a credible witness because, for example, she escaped punishment for her own acts of prostitution by testifying against defendant and admitted she lied to defendant about her age. Defendants arguments on appeal are similar to the ones he made before the jury. But it was for the jury, not this court, to evaluate Ms. G.s credibility. (See People v. Bolin (1998) 18 Cal.4th 297, 333; People v. Culver (1973) 10 Cal.3d 542, 548.)

In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendants guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.] [Citation.] (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) [U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.)

There was nothing physically impossible or inherently improbable about Ms. G.s description of the events in this case. Accordingly, the evidence was sufficient to support defendants conviction.

2. Evidence of Uncharged Misconduct

Before the start of trial, the prosecutor sought permission to introduce evidence of defendants conduct with Deputy Ballesteros to prove intent and common plan under Evidence Code section 1101, subdivision (b). Defendant opposed the request. The court ruled as follows: Well, it is prejudicial, but I think the probative value far outweighs the prejudicial effect . . . . It was similar in method and planned, and . . . the charge itself is no more inflammatory than the one that the testimony will come in here. So I will allow it. Contrary to defendants contention, we find no fault in the trial courts ruling.

To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.] (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)

Here, the evidence established that on both the charged and uncharged occasions defendant approached a lone female who appeared to be a prostitute, made a flattering statement, and provided (or offered to provide) his services as a pimp and a place to live. Thus, sufficient common features existed to support admissibility of the Ballesteros testimony.

As [the Supreme Court has] observed, however, evidence of uncharged misconduct is so prejudicial that its admission requires extremely careful analysis and to be admissible, such evidence must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citation.] Thus, [t]he probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.] On appeal, a trial courts ruling under Evidence Code sections 1101 and 352 is reviewed for abuse of discretion. [Citations.] (People v. Lewis (2001) 25 Cal.4th 610, 637.) A court abuses its discretion when its ruling falls outside the bounds of reason. [Citation.] (People v. Kipp (1998) 18 Cal.4th 349, 371.)

There was nothing about defendants similar conduct with Ballesteros that would confuse the issues, mislead the jury, or create a serious danger of undue prejudice. Indeed, [t]he prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. (People v. Yu (1983) 143 Cal.App.3d 358, 377.) The trial court did not abuse its discretion in this case by allowing evidence of defendants misconduct with Ballesteros.

3. Issues Regarding Counsel

Defendant contends that his request to relieve counsel was improperly denied and that a critical stage of the trial proceedings should not have been conducted in his absence. The contentions are without merit.

The Record

At trial, defendant was represented by retained counsel. During the first court session after the jury had been sworn, defendant personally told the trial court, I am getting inadequate counsel right now, and it is a conflict of interest because I asked my attorney for different stuff, like the police reports, the transcripts. I asked him to come visit me and talk to me about the case. He doesnt do any of that. And I have the right to act with counsel, so I want to fire him and hire another attorney. The court stated that defendants request was not timely and asked defendant to explain the conflict. Defendant stated that counsel wants to go on vacation, and he has been telling me since we have started the trial, and I feel that this is going to jeopardize my representation for me. Defendant further stated that he was firing counsel right now. The court responded, Then you are going to represent yourself and you will have to proceed. Defendant replied that he was not ready to proceed and would have another lawyer by three days. The court reiterated that defendant would have to represent himself because the trial was starting very shortly. The court told defendant that he could represent himself, adding that [i]f I see any signs of intimidation, I will ask [defense counsel] to step back into the case.

The transcript indicates that a pause in the proceedings then occurred, following which proceedings resumed with defendant not present but his counsel (David Nisson), Kimberly G., and an attorney appointed to represent Ms. G. in the courtroom. Nisson asked if he was still representing defendant and the court stated that it did not know, explaining that the purpose of the proceeding pertained to immunity for Ms. G. Nisson stated, If I was the attorney, I would object, that [defendant] should be present for this. But if I am not representing him anymore, then it doesnt matter. The prosecutor stated that he had been authorized to grant use immunity to Ms. G. in exchange for her testimony. Ms. G.s attorney told the court that she had advised Ms. G. what the immunity did and did not cover. Ms. G. confirmed that she had received this advice and stepped down from the witness stand.

Immediately after the discussion regarding Ms. G.s immunity, the court stated: On the Bridges matter, the defendant is not brought out. I have two sergeants here because the defendant refused first to get dressed, and has been uncooperative. One of the two deputies explained that defendant had agreed to get dressed, but stated that he is going to create a disturbance in court yelling and screaming, whatever he has to do to create a mistrial. The court proposed that defendant be strapped to his chair by a stealth belt. Nisson objected on the grounds that defendant seems like he is going to go along with the program.

Following Nissons objection, defendant was brought back into the courtroom. The court asked defendant if he had made a decision whether to represent himself or be represented by Nisson. Defendant responded that Nisson would represent him.

Request to Relieve Counsel

The right to the effective assistance of counsel encompasses the right to retain counsel of ones own choosing. [Citations.] [Citation.] (People v. Courts (1985) 37 Cal.3d 784, 789.) Generally, the defendant may discharge retained counsel at any time, without or without cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) A necessary corollary [of the right] is that a defendant must be given a reasonable opportunity to employ and consult with counsel . . . . (People v. Courts, supra, 37 Cal.3d at p. 790.) But the right to retained counsel of the defendants choosing is not absolute. The trial court, in its discretion, may deny such a motion if discharge will result in significant prejudice to the defendant [citation], or if it is not timely, i.e., if it will result in disruption of the orderly processes of justice [citations]. (People v. Ortiz, supra, 51 Cal.3d at p. 983.)

Here, defendant was given the opportunity to express the reasons for his dissatisfaction with counsel, describing the conflict of interest that he perceived as being based on counsels failure to get police reports and transcripts, and to visit him in jail. Defendant also stated that he would need three days to secure new counsel. The court listened to those concerns and, noting that the trial was already underway, exercised its discretion to deny defendants request, impliedly finding that there was no conflict of interest and that dismissing counsel would result in disruption of the orderly process of justice. Defendant has not demonstrated the trial court abused its discretion in making this ruling. (See People v. Turner (1992) 7 Cal.App.4th 913, 918919; People v. Lau (1986) 177 Cal.App.3d 473, 479.)

Defendants Absence from the Courtroom

As a constitutional matter, a criminal defendant accused of a felony has the right to be present at every critical stage of the trial. [Citation.] The right derives from the confrontation clause of the Sixth Amendment to the federal Constitution and the due process clauses of the Fifth and Fourteenth Amendments, and article I, section 15 of the California Constitution. [Citation.] A critical stage of the trial is one in which a defendants absence might frustrate the fairness of the proceedings [citation], or whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge [citation]. [Citation.] (People v. Rundle (2008) 43 Cal.4th 76, 133.)

The purpose of the proceeding from which defendant was absent was to confirm a preexisting arrangement that Ms. G. would testify against defendant in exchange for use immunity. As defendant was informed that such immunity had been granted, the proceeding did not affect defendants opportunity to defend against the charges that he faced. His argument that he was absent from a critical stage of the trial must therefore be rejected.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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