P. v. Fletcher
Filed 3/15/13 P. v. Fletcher 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
THE PEOPLE,
Plaintiff and Respondent,
v.
DRAMAINE FLETCHER,
Defendant and Appellant.
C063305
(Super. Ct. No. 08F09282)
Defendant
and Siama Rivera were arrested in a sting operation after a team of Sacramento police officers investigating child
prostitution saw an ad on Craigslist for a 14-year-old girl (Kimberly J.) they
had previously encountered in a prostitution sting. As a result of evidence uncovered at the
hotel room where the sting took place, evidence uncovered in defendant’s car,
and of Kimberly J.’s preliminary hearing testimony
and statements to officers, defendant was convicted of pimping a minor (count
1), pandering a minor (count 2), photographing a minor involving sexual conduct
(count 3), possession of child pornography (count 5), intercourse with a minor
age 14 or younger (count 6), lewd act (sexual intercourse) with a minor age 14
or younger (count 7), providing marijuana to a minor (count 8), lewd act (oral
copulation) with a minor age 14 or younger (count 9), and lewd act (digital
penetration) with a minor age 14 or younger (count 10). The trial court sentenced defendant to a
prison term of 19 years 4 months.
Defendant argues his federal
BA xc <@con> xl 15 s DLJGBW000026 l "Sixth Amendment" Sixth Amendment
right
confront the witnesses against him was violated because the trial court
admitted the videotaped preliminary hearing testimony of Kimberly J., even
though she was not constitutionally unavailable. He argues she was not constitutionally
unavailable because the prosecution did not exercise due diligence in
attempting to secure her presence at trial.
We shall conclude the prosecution’s efforts were reasonable, good faith
efforts that were timely commenced.
Defendant also argues there was
insufficient evidence of pandering, that his sentence for furnishing marijuana
to a minor should have been stayed pursuant to ADDIN
BA xc <@st> xl 22 s DLJGBW000001 l "Penal Code section 654" Penal Code section 654
in refusing to dismiss his prior strike conviction, and that the trial court
did not exercise its informed discretion when it imposed consecutive sentences
for counts 9 and 10.
We shall remand for the trial court
to reconsider its sentencing choice on counts 9 and 10 because it is unclear
whether the court understood that consecutive sentences were discretionary on
those counts. We shall otherwise affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008, the
Department’s vice unit was examining Web sites trying to locate juveniles
involved in prostitution. On April 8,
Detective Derek Stigerts recognized a girl on Craigslist with whom they had
dealt the prior year, when she was 13 years old. The girl’s name was Kimberly J., and she was
using the same false name, “Sparkle,†she had used previously. Other ads associated with the same phone
number showed Kimberly J. with another female.
One of the ads read, “Come relax and unwind with us, two is better than
one, Sparkle and Cinnamon.†The wording
was typical of a prostitution ad.
Stigerts set up a “date†with the
two girls. They made plans to meet at a
Jack In the Box, where one of the girls, “Cinnamon,†got into the car with the
undercover officer, then went across the street with him to a motel. This procedure is typically used by
prostitutes to see if the persons they meet are law enforcement and to ensure
their own safety. Officer Corey Morgan
was pretending to be the John (customer), because Kimberly J. knew Detective
Stigerts from their previous encounter.
“Cinnamon,†i.e., co-defendant Siama
Rivera, informed Officer Morgan there would be two girls. Kimberly J. was inside the motel room. Rivera seemed nervous, and asked Morgan if he
were a cop. She began touching his
chest, stomach, and waist. Morgan lifted
his shirt and turned around in a circle to show her that he was not wearing a
wire. Rivera told Morgan to “show her
[his] dick.†She then grabbed his penis
through his pants. Morgan asked if she
had any condoms. Rivera said that he
could get a massage and a dance. Morgan
said, “from both of you?†He motioned to
Kimberly J., who nodded “yes.†They told
him it would cost $250. Rivera then got
a call on her cell phone. When she hung
up she said, “all we do is massage and dance.â€
She walked him to the door. When
Morgan opened the door, other officers in the operation were waiting.
There were approximately 10 to 12
law enforcement officers working the operation.
In addition to Officer Morgan, who went inside the motel room, there
were surveillance officers spread out in the parking lot. Pimps are often in the parking lot or in other
rooms in the motel. As several officers
were approaching the room, a white Jaguar that was parked directly below the
room quickly backed out of the parking space.
Defendant was the driver of the Jaguar.
Officers stopped the Jaguar and
found two cell phones inside. One of the
phones contained a photo of Kimberly J. engaged in sexual activity. The officers also found a small amount of
marijuana on defendant, a card key for the motel, a receipt for a different
motel, and $130 cash.
In the motel room, officers found
two packaged condoms, a backpack containing one-inch square baggies and men’s
boxer shorts, a size XXXL T-shirt, a starter kit for a Boost Mobile cell phone
and a corresponding $20 phone card, a pair of men’s shorts, two cell phones, a wireless
Internet card two laptop computers, an address book and day planner, motel
receipts in defendant’s name, a photo of defendant holding a fan of money, an
Amtrak receipt with the names of defendant and “Siama Olivo,†and a large stack
of DVDs including “Cross Country Pimping†and “Hustle and Flow.†They found no cash in the room.
The officers also found a bag
belonging to Kimberly J. The bag
contained female clothing and other personal items, and included a pair of pink
underwear that was “very similar†to the pink underwear worn by the girl
featured on the Internet ads. The bag
contained no illegal narcotics, no money, no computers, and no phones.
When Kimberly J. was picked up, she
denied being involved in prostitution or knowing defendant. She admitted she knew the other woman in the
room, whom she identified as “Cinnamon.â€
She was taken to juvenile hall on an unrelated warrant. Kimberly J. was placed in a group home, from
which she ran away and remained a runaway for approximately four months. After she returned and was interviewed, she
said she was ready to tell the officers the truth and did not want to return to
her old lifestyle.
Kimberly J. told Officer Pamela Rae
Seyffert, who interviewed her, that she met defendant when she was on Watt
Avenue near Interstate 80. She had a
couple of cigars with her and wanted to get some marijuana. She saw defendant parked in his vehicle and
approached him because she thought she might be able to get some marijuana from
him. She told defendant she did not have
a place to stay, and he offered her a room with him and his girlfriend at a
Motel 6. She told defendant she was 18
years old.
She said that defendant took the
photographs that appeared on the Internet.
She said that during the time that she was with defendant and Rivera,
she had walked the streets twice as a prostitute, and the rest of the time had
posted on the Internet for customers.
Kimberly J. explained that when she
and Rivera posted on the Internet, defendant would leave as it was getting
close to the time for the John to show up.
After the “date†was over, they would contact defendant via the Nextel
phone. She said that all the money she
and Rivera earned turning tricks went to defendant. She denied that he demanded the money from her,
but said she would never think of not giving the money to him. Defendant bought her food, marijuana, and
paid for the room.
Kimberly J. testified at defendant’s
preliminary hearing. She was 14 years
old at the time. She testified she
started working as a prostitute about two months before she met defendant. Another man had taught her how to do it. She then worked as a prostitute for three
other people. She was 13 when she
started. When defendant first took her
home with him, they went to a Motel 6.
That was where she met Rivera.
She confirmed that during the time she was with defendant she worked as
a prostitute and advertised on the computer.
She also walked the street. She
and Rivera both worked as prostitutes and put their money together in a certain
spot in the motel room. She knew the
money was going to defendant because the only way she could stay with him was
to make money and do her part. She knew
that she was going to start prostituting because she needed money and a place
to stay, but she was not sure she ever actually talked to defendant about it.
Defendant and Rivera took pictures
of her. She and Rivera posted them as
ads on the Internet. Either Kimberly J.
or Rivera answered the calls they received from the Internet ads. Whenever a “date†came to the motel,
defendant would leave. After the “dateâ€
she or Rivera would call defendant on the phone she had been given. She had sex with defendant once. She had oral sex with Rivera more than
once. Defendant provided her with food and
marijuana, and paid for the motel rooms.
Kimberly J. gave testimony regarding
a number of photographs that were later introduced. One was a staged picture taken by defendant
of oral sex between Kimberly J. and Rivera. It was taken for the purpose of posting it on
the Internet. There were other photos
taken by defendant of Kimberly J. orally copulating Rivera, which were not
staged photos. No one asked Kimberly J.
to perform these sex acts; they just happened.
Defendant was sometimes present, and sometimes was not present.
When Kimberly J. had spoken to a
detective shortly after she was arrested, she had not wanted to admit knowing
defendant because she did not want him to get into trouble for being involved
in her prostitution. She was afraid he might
go to jail for pimping and get into trouble for “messing with an underaged
female.†One of the rules of the street
was that she was supposed to protect her pimp.
Detectives Stigerts and Morris gave
expert testimony on the pimping of juvenile prostitutes. They testified that juvenile prostitutes are
commonly advertised on Internet sites such as Craigslist. Detective Stigerts testified he had never
seen a 14-year-old prostitute that worked without a pimp.
Detective Morris testified it was
very common for pimps to have sexual relations with their prostitutes and
furnish drugs to them. The authorities
recover cell phones and computers in virtually every juvenile prostitution
case. Computers are used to post
Internet ads, and prostitutes communicate with their Johns via cell
phones. It is common for juvenile
prostitution to be advertised on the Internet, and Detective Morris testified
he had never seen a juvenile prostitute advertised on the Internet using a motel
room who did not have a pimp. Juvenile
prostitutes are generally unable to put all of the parts of a prostitution
operation together because they do not have identification, cars, or the
ability to rent motel rooms.
It is common in
prostitution cases to find photos such as those found on the
cell phone in defendant’s car. It is
very common in juvenile prostitution cases to find photos of naked women in
provocative poses. They are typically
taken to be posted on the Internet, for the pimp’s sexual gratification, to
blackmail prostitutes, and to brag to others in the prostitution industry. It is very common in cases of juvenile
prostitution to find photos on cell phones of money or someone holding money.
Also on the cell phone found in defendant’s
car were text messages. One read, “Did u
make dat money 4 me?†This represented a
communication between a pimp and a prostitute, and is common to find in
juvenile prostitution cases. There were
also recruitment-type text messages on the phone.
name="_ftnref2" title="">[2]
These are common because a pimp will browse the Internet looking for
prostitutes and send them text messages.
Detective Morris was not surprised
that no money was found in the motel room.
The pimp usually keeps the money, because allowing the prostitute to
keep money would divest him of control.
A forensic analysis of one of the laptops recovered from the motel room
revealed that someone had used it to visit the Craigslist Web site 373 times. One of the user’s names on the computer was
“Siama.†The photos on the computer were
consistent with the images that were on the Internet ads and on the cell phone.
DISCUSSION
I
Preliminary
Hearing Testimony Did Not Violate Confrontation Right
The trial court granted the People’s
motion to admit Kimberly J.’s videotaped preliminary hearing testimony. The People’s motion informed the court that
Kimberly J. was missing, and detailed the following efforts to locate her: (1) a no-bail warrant for her arrest was
issued on January 14, 2009; (2) Detective Morris routinely searched for her on
the Internet , which is how she was originally located for this case and for
her prior case; (3) a special notice of warrant was issued to all Sacramento
Police Department personnel, and to all California law enforcement agencies;
(4) Kimberly J.’s mother was served with a subpoena on June 9, 2009, but when
she appeared in court she said she had not spoken with Kimberly J. for several
months and was unaware of her whereabouts; (5) the People checked with
Sacramento County Child Protective Services (CPS), Alameda County CPS, San
Francisco County CPS, Fresno County CPS, University of California, Davis,
Medical Center, Kaiser South Sacramento Hospital, and Mercy General Hospital;
and (7) the People contacted Kimberly J.’s last foster parents, who did not
know of her whereabouts.
Defendant argues the admission of
Kimberly J.’s preliminary hearing testimony violated his federal ADDIN
BA xc <@$con> xl 15 s DLJGBW000026 Sixth Amendment
right to confront the witnesses against him.
The United States Supreme Court has held that the testimonial statement
of a witness absent from trial is admissible only where the witness is
unavailable and the defendant has had a prior opportunity to cross-examine the
witness. ( ADDIN BA xc <@cs> xl 65 s
DLJGBW000002 xhfl Rep xpl 1 l "
U.S. 36, 59 [158 L.Ed.2d 177, ]" Crawford v. Washington (2004) 541 U.S. 36, 59 [158 L.Ed.2d 177,
197].) “A witness who is absent from
a trial is not ‘unavailable’ in the constitutional sense unless the prosecution
has made a ‘good faith effort’ to obtain the witness’s presence at the
trial.†( ADDIN BA xc <@cs> xl 44 s
DLJGBW000003 xhfl Rep xpl 1 l "
Cal.4th 613, 622" People
v. Herrera (2010) 49 Cal.4th 613, 622 ( ADDIN BA xc <@$cs> xl 7 s
DLJGBW000003 xpl 2 Herrera).) There is no question here that defendant had
a prior opportunity to cross-examine Kimberly J. at defendant’s preliminary
examination. The only issue is whether Kimberly
J. was unavailable in the constitutional sense that the prosecution made a good
faith effort to obtain her presence.
To establish unavailability, the
prosecution must show that its efforts were reasonable under the circumstances
presented. ( ADDIN BA xc <@$cs> xl 36 s
DLJGBW000003 xhfl Rep xpl 1 Herrera, supra, 49
Cal.4th at p. 623.) We review the trial
court’s determination of disputed facts under a deferential substantial
evidence standard, and review the application of those facts to the standard of
due diligence independently. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.)
“Considerations relevant to the due
diligence inquiry ‘include the timeliness of the search, the importance of the
proffered testimony, and whether leads of the witness’s possible location were
competently explored.’ [Citations.] In
this regard, ‘California law and federal constitutional requirements are the
same . . . .’ [Citation.]â€
(
ADDIN BA xc <@$cs> xl 36 s DLJGBW000003 xhfl Rep xpl 1 Herrera,
supra, 49 Cal.4th at p. 622.) The
prosecution shows due diligence where its efforts are timely, reasonably
extensive, and carried out over a reasonable period. ( ADDIN BA xc <@cs> xl 44 s
DLJGBW000004 xhfl Rep xpl 1 l "
Cal.4th 836, 856" People
v. Bunyard (2009) 45 Cal.4th 836, 856.)
In contrast, diligence is lacking where the prosecution’s efforts to
locate the witness are “perfunctory or obviously negligent.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 855.)
A. Facts Relating to Due Diligence
Kimberly J. appeared at the
preliminary hearing on November 26, 2008.
During her testimony she said she decided to tell the truth at the
preliminary hearing because she was starting to get herself together, and
because a lot of guys take advantage of little girls, and she did not want that
to happen to anybody else, or for them to go through what she went
through. Counsels’ questioning of
Kimberly J. was not completed on November 26, 2008, and she was ordered back on
December 5, 2008. She returned on that
date and completed her testimony.
The trial was initially set for
April 20, 2009, but was later reset for June 15, 2009. As the facts were later revealed through the
testimony of the prosecution’s witnesses, Kimberly J. was living in a foster
home when she gave her preliminary hearing testimony, but was removed from the
home shortly thereafter for using drugs.
She was taken to juvenile hall, and then placed in a group home in
Fresno. The Sacramento County Probation
Department was informed on January 14, 2009, that Kimberly J. had run away.
1. Early Efforts to Locate Kimberly J.
In January 2009, the probation
department issued an arrest warrant for Kimberly J. Detective Morris testified that he had
browsed prostitution-related Web sites over and over again looking for Kimberly
J. His efforts to locate Kimberly J. in
this fashion were ongoing since learning that she was missing. He testified at the hearing in July that he
had been searching “for the last several months.†He also frequently drove down the
prostitution stroll area in Sacramento looking for her.
Detective Morris testified that
searching for a juvenile is challenging because they cannot rent motel rooms or
cars. They have no driver’s license or
car registered to them. Previously, they
had the most success locating Kimberly J. through Internet searches. He had attempted to search for her steadily
on the Internet since she went missing.
2. June 2009 Efforts to Locate Kimberly J.
In June 2009, a special notice of
warrant was issued for Kimberly J. One
notice went to the Sacramento Police Department, and one was sent to every law
enforcement agency and district attorney’s office in the state. On the day the state-wide notice was sent
out, Detective Morris received a call from Foster City Police Department. They believed they had just dealt with
Kimberly J. and sent a photograph of the person. It was not Kimberly J. No other response was received from the
notices.
An investigative assistant in the
district attorney’s office testified that on June 24, 2009, she contacted
Kimberly J.’s last known foster parent, who told her that Kimberly J. was
removed from her home and taken to juvenile hall a few weeks prior to Christmas
because she was using drugs. She heard
that Kimberly J. was taken to a group home in Fresno. The investigator contacted CPS in Fresno
County, Alameda County, Sacramento County, and San Francisco County. She also contacted the University of
California, Davis, Medical Center, Mercy General Hospital in Sacramento, and
Kaiser South Hospital in Sacramento. The
investigator was able to obtain a Fresno address, and performed a skip trace on
the address. The address was for a group
home in Fresno. The manager there stated
no one named Kimberly J. had been there in the four months she had been
managing the home.
Detective Morris contacted Kimberly
J.’s mother in June 2009, who told him she did not know where Kimberly J. was,
but that Kimberly J. had called her from a blocked number about two months
earlier. She thought Kimberly J. might
have been in the Bay Area, and was trying to make her way to Sacramento. Detective Morris spoke with Kimberly J.’s
mother two other times, but she had not been contacted by Kimberly J.
again. Detective Morris spoke with
Kimberly J.’s foster mother, but she had not heard from her either.
3. Pretrial Hearing
The trial court granted the People’s
request to use Kimberly J.’s preliminary hearing testimony at trial. The court explained its ruling:
“[T]he Court
was persuaded by the testimony that there are certain unique circumstances that
exist when one is confronted with the situation of searching for a juvenile
runaway witness who has a fair amount of apparent street savvy as it’s alleged
that the witness in this case does. And
I think one can certainly infer . . . that this witness is not keen
on being located.
“I understand the arguments of the
defense and I will indicate that the Court’s assessment is based on a totality
of the evidence presented by the People.
But the most compelling efforts were the ongoing attempts of law
enforcement, Detective Morris, rather than those specifically initiated by the
District Attorney’s office. But I do
attribute all of that to state action as it’s clear that the motivation of
Detective Morris included a successful presentation of that witness and
availability of that witness at trial.â€
The court stated that in light of
the timing of the outset of the trial (the court ruled on July 6, 2009, and the
first witness was called on July 15, 2009), the People would have additional
time to locate Kimberly J., and the court directed them to “continue to make
diligent and persistent efforts and present proof . . . of their
efforts to locate this witness.â€
4. Posthearing Efforts to Locate Kimberly J.
Detective Morris submitted a
declaration detailing his additional efforts to locate Kimberly J. He contacted the police departments for
Richmond, San Francisco, and Santa Clara, and the Alameda County Sheriff’s
Department. He sent another email to all
Sacramento Police Department personnel, and continued his Internet
searches. Detective Stigerts continued
the Internet search for Kimberly J. He
also contacted the Fresno and Oakland police departments to no avail.
Jay Czajkowski, an investigator for
the district attorney’s office contacted a Sacramento County probation officer,
who told him the department’s last contact with Kimberly J. was when she was
placed in a Fresno group home.
Sacramento County Probation was informed on January 14, 2009, that
Kimberly J. ran away from the home and had not been seen since. Czajkowski was given five former addresses
for Kimberly J.: two group homes and
three foster homes. The owner of the
group home that was Kimberly J.’s last known address stated that Kimberly J.
expressed during her short stay at the home that she planned to run away and
work the streets in Oakland. The owner
gave her opinion that nobody from the home would know where to find Kimberly
J. Czajkowski made several attempts to
contact Kimberly J.’s mother, but met with no success. He also spoke with Kimberly J.’s grandmother,
but she had not had any contact with Kimberly J.
B. Discussion
Defendant’s argument that the
prosecution did not use due diligence in locating Kimberly J. is twofold. He argues first that the prosecution should
have taken steps to ensure Kimberly J. did not go missing, and second that the
prosecution’s efforts to locate Kimberly J. were too little, too late.
1. The Prosecution Was Not Required to Prevent
Kimberly J. from Running
Defendant argues the prosecution was
aware the Kimberly J. was a habitual runaway, and that because of this, it
should have incarcerated her until the trial, or sought to have her committed
to the custody of the probation department as a material witness pursuant to ADDIN
BA xc <@osdv> xl 12 s DLJGBW000028 l "section 1332" section 1332.
When Kimberly J. was interviewed in
juvenile hall following defendant’s arrest, she was willing to talk about the
events at the motel because she did not want to return to her previous
lifestyle. Kimberly J. told Officer
Seyffert that she wanted to be placed in a foster home because she did not like
the group home environment. Officer
Seyffert told Kimberly J. that she would work on getting her placed in a foster
home. Her efforts were apparently
successful because when Kimberly J. gave testimony at defendant’s preliminary
hearing, she was living in a foster home in Elk Grove, California. Kimberly J. testified at the preliminary
hearing that she was starting to get herself together.
When Kimberly J. finished her
preliminary hearing testimony the trial court asked counsel if they wanted to
have her on call until the end of the hearing, or if she could be excused. There was no request to have her on call, and
she was excused. Given these facts,
neither the prosecution nor the defense would have predicted that Kimberly J.
would be removed from her foster home for using drugs and then placed in a
group home from which she would run away.
Certainly, the prosecution had no “foreknowledge†of her disappearance,
as defendant argues.
Since Kimberly J. seemed to have
made the decision to turn her life around at the time of the
hearing and was in a foster home as she had wanted,
the prosecution was not obligated to incarcerate her or commit her to a
probation officer or other appropriate agency as a material witness to fulfill
the requirements of due diligence. This
is especially true since Kimberly J.’s preliminary hearing testimony was given
in November 2008 and testimony did not begin in defendant’s trial until July
15, 2009. (See ADDIN
BA xc <@cs> xl 51 s DLJGBW000005 xhfl Rep xpl 1 l "In re Francisco M. (2001)
longer the expected detention, the greater the showing required by the state to
justify itâ€].)
2. Prosecution’s Efforts to Locate Kimberly J.
Were Reasonable
A witness is unavailable in the
constitutional sense only if the prosecution’s efforts to locate and produce
the witness are reasonable. ( ADDIN BA xc <@$cs> xl 36 s
DLJGBW000003 xhfl Rep xpl 1 Herrera,
supra, 49 Cal.4th at p. 622.)
“Considerations relevant to the due diligence inquiry ‘include the
timeliness of the search, the importance of the proffered testimony, and
whether leads of the witness's possible location were competently explored.’
[Citations.]†( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.) However, “the prosecution need not exhaust
every potential avenue of investigation to satisfy its obligation to use due
diligence to secure the witness.†( ADDIN BA xc <@cs> xl 52 s
DLJGBW000006 xhfl Rep xpl 1 l "
Cal.App.3d 1624, 1641" People
v. Guiterrez (1991) 232 Cal.App.3d 1624, 1641, fn. omitted, disapproved
on other grounds in ADDIN
BA xc <@cs> xl 43 s DLJGBW000007 xhfl Rep xpl 1 l "People v. Cromer (2001)
Here, Detective Morris testified he
had steadily searched for Kimberly J. on the Internet sites he had previously
used to find her since learning of her disappearance. We agree with the trial court that Detective
Morris’s efforts may be attributed to the prosecution, since he clearly had an
interest in defendant’s successful conviction.
He was designated the case agent on the operation that culminated in defendant’s
arrest. The prosecutor designated him as
the investigating officer in defendant’s prosecution. He was a participant in defendant’s arrest
and a witness at the trial in which defendant was convicted.
Searching likely Web sites for
Kimberly J. was a reasonable way to locate her, since that was how officers had
found her in the past. Detective
Morris’s efforts were also timely, as they began as soon as he was notified
that Kimberly J. was missing. His efforts,
plus those of the investigators working for the district attorney’s office,
appear to have been sincerely designed to locate Kimberly J. and not merely
perfunctory efforts. No leads were
ignored, and every lead was competently explored. (See ADDIN
BA xc <@$cs> xl 36 s DLJGBW000003 xhfl Rep xpl 1 Herrera, supra, 49 Cal.4th at p. 622.)
The prosecution’s efforts to locate
and produce Kimberly J. constituted due diligence, thus Kimberly J. was a
constitutionally unavailable witness.
Defendant’s confrontation rights were not violated by the use of her
preliminary hearing testimony.
II
Sufficient
Evidence of Pandering
Defendant was convicted of violating
ADDIN BA xc <@osdv> xl 12 s
DLJGBW000029 l "section 266i" section 266i,
pandering. Defendant’s twelve-year
sentence for violating this statute was stayed pursuant to ADDIN
BA xc <@$st> xl 11 s DLJGBW000001 section 654.
Defendant argues there is no
substantial evidence he had the specific intent to encourage Kimberly J. to be
a prostitute because there was no sufficient evidence that he “ ‘knowingly
and purposefully’ acted ‘to persuade or otherwise influence’ Kimberly J. to
engage in any future acts of prostitution.â€
Defendant argues Kimberly J. needed no persuasion to engage in
prostitution, but did so on her own initiative in order to pay for her room and
board.
As is relevant here, ADDIN
BA xc <@$osdv> xl 12 s DLJGBW000029 section 266i makes
it unlawful to: (1) procure another for
the purpose of prostitution; (2) cause, induce, persuade, or encourage another
person to become a prostitute by threats, violence, or any device or scheme;
(3) procure another as an inmate in a house of prostitution or a place where
prostitution is encouraged or allowed; (4) cause, induce, persuade, or
encourage an inmate of a house of prostitution to remain there as an inmate by
promises, threats, violence or any device or scheme; (5) procure another for
the purpose of prostitution or to enter any place where prostitution is
encouraged or allowed by fraud or artifice or by duress of person or goods, or
abuse of a position of confidence or authority; or (6) receive or give any
money or thing of value for procuring another person for the purpose of
prostitution.
The term “procure†as used in the
statute means to assist, induce, persuade, or encourage. ( ADDIN BA xc <@cs> xl 48 s
DLJGBW000008 xhfl Rep xpl 1 l "
Cal.App.2d 804, 812" People
v. Schultz (1965) 238 Cal.App.2d 804, 812.) A house of prostitution is any place where
prostitution is allowed or encouraged, including a motel room. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.) An inmate is a person who is “induced or
encouraged to occupy, live or abide in a house of prostitution.†( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Ibid.) It is immaterial that the person consents to being
a prostitute, or that the person is already a prostitute. ( ADDIN BA xc <@cs> xl 43 s
DLJGBW000009 xhfl Rep xpl 1 l "
Cal.4th 965, 981" People
v. Zambia (2011) 51 Cal.4th 965, 981; ADDIN
BA xc <@cs> xl 47 s DLJGBW000010 xhfl Rep xpl 1 l "People v. Hobson (1967)
There was sufficient evidence that
defendant assisted or induced Kimberly J. to be a prostitute, and that he assisted
or induced her to be an inmate in a house of prostitution (the motel
room). Kimberly J. testified that she
knew all of the money she made was going to defendant, and that she believed
this was the only way that she could stay with him -- to make money and do her
part. Defendant gave Kimberly J. a cell
phone to assist her in making “dates†from her Internet postings. Defendant took pictures of Kimberly J. that
were used to post ads for prostitution on the Internet. During the time Kimberly J. was with
defendant, he provided her with food and marijuana, for which she did not
pay. He never asked her to pay for
it. All of this evidences a tacit
agreement between Kimberly J. and defendant that he would pay for her room,
board, and drugs if she would sell herself as a prostitute and give him her
earnings.
Furthermore, a defendant’s specific
intent may be and usually must be inferred from the circumstances of the
crime. ( ADDIN BA xc <@cs> xl 47 s
DLJGBW000012 xhfl Rep xpl 1 l "
Cal.App.3d 754, 767" People
v. Kaiser (1980) 113 Cal.App.3d 754, 767.) Defendant’s actions in paying for Kimberly
J.’s room, board, and drugs, and in taking pictures for her to use to advertise
her services as a prostitute, and in giving her a phone to facilitate her
“dates†are circumstantial evidence that he had the specific intent to assist,
induce, persuade, or encourage her for the purpose of prostitution.
III
ADDIN
BA xc <@$st> xl 11 s DLJGBW000001 Section 654
ADDIN
BA xc <@$st> xl 11 s DLJGBW000001 Section 654 provides that an act or omission
which is punishable in different ways by different provisions of law may not be
punished by more than one provision.
Although the statutory language applies only to a single act or
omission, the statute has been construed to apply where several offenses are
committed during “ ‘a course of conduct deemed to be indivisible in time.’
[Citation.]†( ADDIN BA xc <@cs> xl 44 s
DLJGBW000013 xhfl Rep xpl 1 l "
Cal.3d 321, 335" People v. Harrison (1989) 48 Cal.3d 321, 335, quoting ADDIN
BA xc <@cs> xl 41 s DLJGBW000014 xhfl Rep xqt xpl 1 l "People v. Beamon (1973)
divisible and therefore gives rise to more than one act within the meaning of ADDIN
BA xc <@$st> xl 11 s DLJGBW000001 section 654
depends on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.†( ADDIN BA xc <@cs> xl 37 s
DLJGBW000015 xhfl Rep xpl 1 l "
Cal.2d 11, 19" Neal v. State of California (1960) 55 Cal.2d 11, 19,
disapproved on other grounds in ADDIN
BA xc <@cs> xl 43 s DLJGBW000016 xhfl Rep xpl 1 l "People v. Correa (2012)
Defendant contends the trial court
erred in failing to stay the sentence in count 8, furnishing marijuana to a
minor, because furnishing marijuana to Kimberly J. was incident to his
objective of pimping Kimberly J.
disagree because the acts were divisible in time. Multiple crimes do not amount to a single
indivisible course of conduct where the defendant had a chance to reflect
between offenses. ( ADDIN BA xc <@cs> xl 42 s
DLJGBW000017 xhfl Rep xpl 1 l "
Cal.2d 899, 908" People v. Massie (1967) 66 Cal.2d 899, 908; ADDIN BA xc <@cs> xl 47 s
DLJGBW000018 xhfl Rep xpl 1 l "
Cal.App.4th 1236, 1255" People
v. Kwok (1998) 63 Cal.App.4th 1236, 1255.)
Whether defendant’s acts constituted
an indivisible course of conduct or a divisible transaction is a question of
fact for the trial court, which we review for substantial evidence. ( ADDIN BA xc <@$cs> xl 54 s
DLJGBW000018 xhfl Rep xpl 1 People
v. Kwok, supra, 63 Cal.App.4th at pp. 1252-1253.) Kimberly J. testified that defendant gave her
marijuana when she first met him and throughout the time she knew him. She was with him approximately one
month. She, defendant, and Rivera all
three smoked the marijuana together.
This was sufficient evidence that defendant gave Kimberly J. marijuana
several times, that she smoked it with him, and that she did so when she was
not performing for him as a prostitute.
Since defendant supplied Kimberly J. with marijuana throughout the time
she was with him, there were multiple opportunities for defendant to reconsider
his decision to supply a minor with marijuana.
This was substantial evidence of a divisible transaction, and the trial
court did not err when it declined to stay the sentence on count 8.
IV
Prior Strike
Defendant claims the trial court
abused its discretion when it failed to strike his prior serious felony
conviction. A trial court has discretion
to dismiss a prior felony conviction allegation in cases brought under the
Three Strikes law. ( ADDIN BA xc <@cs> xl 64 s
DLJGBW000019 xhfl Rep xpl 1 l "
allegation is reviewed for abuse of discretion.
(
ADDIN BA xc <@cs> xl 44 s DLJGBW000020 xhfl Rep xpl 1 l "People v. Carmony (2004)
the decision was so irrational or arbitrary that no reasonable person could
agree with it. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 376.) The circumstances where no
reasonable person could agree with the trial court’s decision must be
“extraordinary.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 378.)
Defendant argues he was entitled to
have his prior conviction allegation
dismissed because his current crimes are not violent or life threatening, and
because his prior strike was “from a brief period of aberrant behavior.â€
We find no abuse of discretion. Defendant’s case is not extraordinary. Even though defendant’s current offenses were
nonviolent offenses, they were not minor felonies. Furthermore, defendant’s criminal background
is more extensive that a brief period of aberrant behavior. As a juvenile, he was adjudged a ward of the
court after robbing a bank. The wardship
terminated on October 30, 1995, and less than eight months later, he committed
another bank robbery. A month later he
used a firearm to rob two men in separate incidences. On February 26, 1998, defendant was convicted
for these crimes and sentenced to four years in state prison. He was paroled, but in 2001 he violated
parole and was sentenced to finish his term.
He was discharged from parole on March 8, 2004. His present offenses were committed in 2008.
The trial court acted well within
its considerable discretion when it refused to dismiss the prior conviction
allegation.
V
Sentencing
By failing to raise any objection
below, defendant has waived his claim that the case must be remanded for
resentencing because the trial court failed to give its reasons for consecutive
sentencing. ( ADDIN BA xc <@cs> xl 47 s
DLJGBW000021 xhfl Rep xpl 1 l "
Cal.App.4th 1114, 1117" People
v. Neal (1993) 19 Cal.App.4th 1114, 1117.)
Defendant also claims the trial
court should have imposed concurrent, rather than consecutive sentences on counts
6 (unlawful intercourse with a minor), 8 (furnishing marijuana to a minor), 9
(oral copulation with a minor), and 10 (digital penetration of a minor). He argues that counts 6, 9, and 10 occurred
on the same occasion, and count 8 occurred on the same occasion as the pimping
count.
The People concede that we should
remand the matter for resentencing only on counts 9 and 10 to allow the trial
court to exercise its discretion to impose consecutive or concurrent sentences
on counts 9 and 10. We agree.
The basis for the convictions on
counts 6, 9, and 10 was Kimberly J.’s preliminary hearing testimony. She testified that she had sexual intercourse
with defendant only once (count 6). She
also had oral sex with defendant (count 9).
She thought it was the same time as the sexual intercourse, but she was
not sure. Defendant also put his fingers
inside Kimberly J.’s vagina (count 10).
This occurred at the same time she had sexual intercourse with him.
ADDIN
BA xc <@osdv> xl 31 s DLJGBW000031 l "Section 667, subdivision (c)(6)" Section 667,
subdivision (c)(6), mandates consecutive sentencing for any current felony
that is “not committed on the same occasion, and not arising from the same set
of operative facts.†Consecutive
sentences for multiple current felonies that are committed on the same occasion
and that arise from the same set of operate facts are not mandatory by
implication. ( ADDIN BA xc <@cs> xl 48 s
DLJGBW000022 xhfl Rep xpl 1 l "
Cal.4th 508, 512-513" People
v. Hendrix (1997) 16 Cal.4th 508, 512-513.) The trial court retains discretion to
sentence a defendant for such convictions either concurrently or
consecutively. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 514.)
Where the record fails to disclose
whether the trial court understood it had discretion impose concurrent terms,
the matter should be remanded to the trial court for the court to exercise its
sentencing discretion. ( ADDIN BA xc <@cs> xl 45 s
DLJGBW000023 xhfl Rep xpl 1 l "
Cal.App.4th 128, 137" People
v. Hall (1998) 67 Cal.App.4th 128, 137-138.) If the trial court believed it had discretion
to impose a consecutive or concurrent term, it was required to provide a
statement of reasons for choosing a consecutive term. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 Id.
at p. 138) No statement of reasons is
required if consecutive terms are mandated.
(
ADDIN BA xc <@$id> xl 5 s ID xpl 1 Ibid.)
The trial court did not provide a
statement of reasons for counts 6, 9, and 10.
When sentencing defendant on counts 9 and 10, the court stated: “As to Count Nine, a violation of [Penal Code
section] 288 [subdivision] (c)(1), I will order an additional consecutive
sixteen-month sentence. [¶] As to Count [Ten], a separate violation of ADDIN
BA xc <@st> xl 31 s DLJGBW000024 l "Penal Code Section 288(c)(1), I" Penal Code Section 288
[subdivision] (c)(1), I will order the defendant be imprisoned in the state
prison for sixteen months, and that -- again, that’s consecutive.â€
Counsel did not argue whether the
sentences for counts 9 and 10 should be concurrent or consecutive. The probation report stated that defendant
was “subject to mandatory consecutive sentencing pursuant to ADDIN
BA xc <@st> xl 28 s DLJGBW000025 l "Penal Code Section 667(c)(6)" Penal Code Section 667
[subdivision] (c)(6).â€
Specifically as to counts 9 and 10, the probation report recommended the
sentences be served consecutively.
There being no way to determine
whether the trial court was aware of its discretion to impose consecutive or
concurrent sentences for counts 9 and 10, we shall remand to the trial court
for it to exercise such discretion.
However, a consecutive sentence for
count 8 was mandated under the terms of ADDIN
BA xc <@$osdv> xl 31 s DLJGBW000031 section 667,
subdivision (c)(6), because the facts underlying the furnishing a minor
with marijuana charge did not occur on the same occasion as the facts
underlying the pimping charge. As noted
earlier, defendant furnished Kimberly J. with marijuana throughout the time she
knew him, and she smoked marijuana with him.
Since defendant was never in the room when Kimberly J. was performing as
a prostitute, the crimes were not committed on the same occasion and did not
arise from the same set of operative facts.
DISPOSITION
The judgment is reversed with
respect to imposition of consecutive sentences for counts 9 and 10, and the
cause is remanded for a new sentencing hearing in which the trial court is to
exercise its discretion to impose consecutive or concurrent sentences. In all other respects the judgment is
affirmed.
BLEASE , J.
We concur:
RAYE , P.
J.
DUARTE , J.
name="_ftn1" title="">[1] Further references to an undesignated section
are to the ADDIN BA xc <@ost> xl 10 s
DLJGBW000027 l "Penal
Code" Penal Code.
name="_ftn2" title="">[2] The phone contained the following messages:
“Hey there sexi ladies u both look like the only thing
yall missing is a Bo$$ & betta direction in ur life get with mr & let me
show u how 2.†“[D]o u have room n yo
life 4 somebody thats tryna show u a better way 2 do wat u doin? [S]ave this numba til you ready to put it to
good use.†“How u doin, jus seein if u
were independent or if wanted get wit a real nig and get sum money.†“I just want to compliment ur sexieness and
inquire about ur happieness . . ma are u ready to put sum elevation n ur
situation.â€
