P. v. Henry

Filed 10/29/09 P. v. Henry CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Judith L. Champagne, Judge. Affirmed.

Law Offices of John F. Schuck and John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Bryne, and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Kenneth Carl Henry appeals from a judgment entered after the jury returned a guilty verdict against him for count 1, solicitation of prostitution (Pen. Code,  647, subd. (b)).[1] Defendant admitted serving six prior prison terms. ( 667.5, subd. (b).) The jury found true the allegation that defendant had a prior conviction for violation of section 647, subdivision (b), for which a blood test was administered pursuant to section 1202.6, yielding a positive result of which defendant was informed pursuant to section 647f.

The trial court sentenced defendant to six years in state prison, consisting of the upper term of three years, plus three one-year terms for three of the prison term priors, to be run consecutively. Sentence on the remaining prison priors was stayed.

Defendant contends that the trial court abused its discretion when it admitted evidence of defendants prior convictions. We disagree and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On April 11, 2008, at Agatha Street and Towne Avenue, defendant was arrested for violation of section 647, subdivision (b). Prior to trial, an Evidence Code section 402 hearing was held regarding defendants prior convictions for violations of section 647, subdivision (b), which the People sought to admit pursuant to Evidence Code section 1101, subdivision (b). The People represented that the prior convictions were relevant to show defendants intent and modus operandi. The trial court allowed evidence of defendants prior convictions in 2003 for agreeing to perform oral sex for $10 on an undercover officer on August 9, 2002, at nearby 7th Street and Ceres Avenue; in 2004 for agreeing to perform oral sex for $20 on an undercover officer on April 6, 2004,at Agatha Street and Towne Avenue; and in 2006, for agreeing to perform oral sex for $20 on an undercover officer on December 7, 2006, at nearby Stanford Avenue and Agatha Street. The trial court observed that the locations and activities were nearly identical to the present charges and that the convictions were probative of intent. During trial, the People introduced a document establishing defendants June 29, 2004 conviction for a violation of section 647, subdivision (b).

At trial, Los Angeles Police Officer Brandon Mamrot (Mamrot) testified that on April 11, 2008, at 8:10 p.m., he and his partner, Officer Plummer (Plummer), worked undercover at the intersection of Agatha Street and Towne Avenue, an area known for prostitution. Mamrot was parked in an unmarked police car while his partner was on the street posing as a customer, or John. Mamrot provided backup for Plummer. Defendant, dressed as a woman, wearing hair extensions, lipstick, and carrying a purse, opened Mamrots car door and sat in the passenger seat. Defendant asked, Whats up, baby? Mamrot testified that he was very surprised when defendant entered his car, because he was expecting to see his partner. He said, What the hell are you doing in my car? I dont know you. Defendant replied, What you up to? I am Ashley. Mamrot asked defendant if he was trying to rob him. Defendant answered, No. It is not like that. I am here for you. Defendant then asked, What are you looking for? Mamrot testified that he believed defendant was playing word games, and unwilling to be distracted from providing backup for his partner, told defendant to get out of his car. Defendant then said If you want, I will blow you for 10. Mamrot responded, All right. It sounds good. Defendant then left the car. During the conversation with Mamrot, defendant did not mention that he was HIV-positive. Mamrot advised other police officers that a crime had occurred and described defendant. Officer Vanessa Siordia (Siordia) detained defendant and patted him down. Defendant did not appear to be surprised or ask why he was being arrested. When Siordia asked defendant if he had anything on him she should know about, he replied, I have HIV, just so you know. Defendant was arrested and handcuffed. When defendant was booked, 11 condoms were found in his purse.

Defendant testified at trial that he discovered he had HIV in 1995 but continued to engage in sexual acts and prostitution. Defendant admitted that he had committed prostitution in the area of Agatha Street and Towne Avenue for which he was convicted in 2003, 2004 and 2006. He acknowledged that he had entered a vehicle with an undercover police officer and agreed on a fee in exchange for oral copulation. Defendant testified that on the day he was arrested in this case, he had been at a facility for HIV patients near the area of Agatha Street and Towne Avenue and was trying to reach the Salvation Army shelter, which was two miles away. He testified that he did not get into Mamrots car for the purpose of solicitation of prostitution, rather, for a ride, after he saw Mamrot wave him over. Defendant testified that Mamrot looked crazy, and was unshaven and rude. Defendant then said You know what, I could do a better thing for you and I can get out of your car.

Defendant testified that he asked Siordia why he was being arrested. When she told him that he was under arrest for attempted prostitution, he said he was just trying to get a ride and that he had not engaged in attempted prostitution.

DISCUSSION

Defendant contends that the trial court abused its discretion when it allowed the People to introduce evidence of his prior convictions in violation of Evidence Code sections 1101, subdivision (b), and 352. We disagree.

Evidence Code section 1101, subdivision (a) provides that: [E]vidence of a persons character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion. Evidence Code section 1101, subdivision (b), however, permits the admission of evidence that a person committed a crime or other act when it is relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.

The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence. (People v. Carpenter (1997) 15 Cal.4th 312, 378, 379, overruled by statute on other grounds as discussed in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) For the tendency of prior acts to prove the disputed facts only the least degree of similarity is needed to prove intent. (People v.Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt), superseded by statute on other grounds as discussed in People v. Britt (2002) 104 Cal.App.4th 500, 505.) A greater degree of similarity is needed to prove common design or plan and the greatest degree of similarity is required to prove identity. (Ewoldt, at pp. 402-403.) In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] (Ewoldt, at p. 402.)

If a defendants uncharged criminal conduct is relevant, the court then determines whether the probative value of the defendants uncharged offense is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352; People v. Balcom (1994) 7 Cal.4th 414, 426-427 (Balcom).) We review the trial courts decision in admitting evidence of a defendants uncharged misconduct for abuse of discretion. (Ewoldt, supra, 7 Cal.4th at p. 405.)

Section 647 makes it unlawful for [e]very person . . . [w]ho solicits or who agrees to engage in or who engages in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, prostitution includes any lewd act between persons for money or other consideration.

Defendant contends that the trial court erred in admitting the prior convictions in order to show intent. He acknowledges that in general, a defendants plea of not guilty puts in issue all of the elements of the offenses, including his intent. (Balcom, supra, 7 Cal.4th at p. 422.) Nevertheless defendant cites People v. Miller (2000) 81 Cal.App.4th 1427, 1447-1448, for the proposition that other crimes evidence is admissible where the proof of the defendants intent is ambiguous, as when he admits facts and denies the necessary intent because of mistake or accident. He also cites Ewoldt, which states that: Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it. [Citation.] (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) Defendant denies that he told the officer, I will blow you for 10. He claims, therefore, that the issue for the jury was whether [defendant] made the incriminating statement, not his intent when allegedly making it.

Defendant, however, defines the disputed conduct too narrowly. He urges that if we assume the defendant committed the alleged conduct (telling the police officer I will blow you for 10), his intent to solicit prosecution is undisputed. However, defendant was charged with a violation of section 647, subdivision (b), that he agreed to engage in an act of prostitution, with the specific intent to engage in the prostitution. The jury was instructed that that People must prove that the defendant solicited another person to engage in an act of prostitution, the defendant intended to engage in an act of prostitution with the other person, and the other person received the communication. The jury was also instructed that intent may be proved by circumstantial evidence.

Therefore, defendants intent to engage in the act of prostitution must be considered from all the circumstances. At trial defendant testified that Mamrot waved him over, and he got into Mamrots car in order to get a ride back to the shelter and only left when he determined that Mamrot looked crazy. Mamrot, on the other hand, testified that he was surprised when defendant opened the door and sat in his car, because he expected his partner. Mamrot testified that defendant began playing word games with him and when he told defendant to get out of the car, defendant offered a lewd act. Clearly, defendant challenged the element of intent at trial and the evidence of a prior, similar conviction was admissible to rebut defendants claim that he intended to enter the car only to get a ride. Furthermore, the prior convictions in 2003, 2004 and 2006 were each sufficiently similar to the current incident to prove intent. Defendant approached each of the officers while they were sitting in their vehicles, prior to soliciting them; each occurred in the same location as the instant offense, and involved the offer of oral sex for $10, $20 and $30. On all three prior occasions defendant flagged down or approached the officers while they were in their cars. In making its ruling, the trial court concluded that the locations and activities were nearly identical and with regard to the issue of intent, I think it would come in.

Defendant further contends that the trial court abused its discretion in admitting the evidence under Evidence Code section 352, because the probative value of the prior convictions did not outweigh their prejudicial nature. Defendant claims this error was exacerbated when the People repeatedly referred to defendants prior history in closing argument. But the evidence of the 2003, 2004 and 2006 prior convictions was probative on the issue of intent to solicit prostitution and the testimony regarding the prior convictions was no stronger and no more inflammatory than the testimony concerning the charged offense. Also, any prejudicial impact was lessened precisely because defendant was previously convicted of the prior acts. First, the jury was not tempted to convict defendant of the charged offenses, regardless of his guilt, in order to assure that he would be punished for the uncharged offenses, because the jury was aware he had been sentenced to a substantial prison term for the uncharged offenses. Second, the attention of the jury was not diverted to a determination whether or not defendant had committed the uncharged offenses, because that fact had been determined conclusively by the resulting . . . conviction. (People v. Balcom, supra, 7 Cal.4th 427.)

We conclude that the trial court did not abuse its discretion in admitting the evidence of the prior convictions.

Even if the admission of the evidence of the prior convictions was error, defendant did not suffer prejudice because it is not reasonably probable that in the absence of the admission of the evidence, defendant would have received a more favorable result. (People v. Mullens (2004) 119 Cal.App.4th 648, 658-659.) The evidence that defendant solicited Mamrot for prostitution was strong. In an area known for prostitution, defendant entered the car, and offered oral copulation for $10. In contrast, the jury could well conclude that defendants version, that he entered a strangers car to ask for a ride, was not credible.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________________, J.

CHAVEZ

We concur:

____________________________, Acting P. J.

DOI TODD

____________________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.