Opinion
A148523
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMAR RASHAD GEETER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City and County of San Francisco Super. Ct. No. 15010588)
A jury returned verdicts convicting defendant Jamar Rashad Geeter of, among other things, multiple counts of commercial sex trafficking, forcible rape and oral copulation, and pimping and pandering of two minors, aged 14 and 16. Defendant now appeals, assigning three claims of error. First, he contends that CALCRIM No. 361, which instructed the jury that it could consider whether he failed to explain or deny any evidence against him, is unconstitutional and was not supported by the evidence in this case. Second, he claims the trial court erred in admitting evidence of two prior uncharged incidents involving him under Evidence Code section 1101, subdivision (b). Third, he claims the trial court erred in allowing a police detective to testify that he believed one of the victims. We find no prejudicial error and affirm.
STATEMENT OF THE CASE
A second amended information charged defendant with 21 counts against two victims, Z.H. and B.C. The charges were: 2 counts of commercial sex trafficking of a minor (Pen. Code, § 236.1, subd. (c)(2); counts 1 and 7); 10 counts of forcible rape of a minor 14 or older (§ 261, subd. (a)(2); counts 2, 4, 8, 10, 12, 13, 15-18); 4 counts of forcible oral copulation of a minor 14 or older (§ 288a, subd. (c)(2)(C); counts 3, 9, 11, 14); 1 count of pimping a minor under 16 (§ 266h, subd. (b)(2); count 5); 1 count of pandering a minor under 16 (§ 266i, subd. (b)(2); count 6); 1 count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count 19); 1 count of pimping a minor 16 or over (§ 266h, subd. (b)(1); count 20); and 1 count of pandering a minor 16 or over (§ 266i, subd. (b)(1); count 21). With respect to counts 2 through 4 and 8 through 18, the information also alleged that the offense involved multiple victims within the meaning of the One Strike law. (§ 667.61, subds. (e)(4), (m).) The information also alleged that defendant served a prior prison term. (§ 667.5, subd. (b).)
We refer to the minor victims by their initials to protect their privacy. No disrespect is intended.
All further statutory references are to the Penal Code unless otherwise stated.
The trial court granted defendant's motion for acquittal as to counts 3, 4, and 9, and dismissed the force allegation as to count 1. The jury found defendant guilty on all counts, except for not guilty verdicts on counts 12 and 19, and guilty as to count 2 only on the lesser offense of statutory rape (§ 261.5, subd. (d)). The prior prison term allegation was also stricken. The trial court sentenced defendant to 15 years to life plus 82 years in prison. Defendant timely appealed.
STATEMENT OF THE FACTS
Z.H.
In July 2014, Z.H., aged 14, spent the Fourth of July weekend with her friend. On July 6, Z.H. called her mother and said she was coming home. While waiting for a bus, Z.H. was approached by defendant, who introduced himself as "Terrific" and invited her to get a burrito. They took a bus and train to a burrito place around 26th Street and Mission Street. Z.H. told defendant she was 15 years old.
Defendant bought Z.H. a burrito and gave her a drink containing vodka. They continued to drink while walking to Capp Street. Defendant told Z.H. he was a pimp and said he would train her to be a prostitute. Defendant then had Z.H. get into a car with a man who asked for sex, but Z.H. said no and got out. Defendant told her she would get used to it. Z.H. was scared and angry, but felt there was no way for her to get away.
Defendant and Z.H. then took a cab to the Broadway Inn. Z.H.'s next memory was waking up the following morning, naked and hurting from her vagina. Defendant left Z.H. in the room for a short time, but she was nervous to leave or use the phone to call for help. Defendant returned with a prostitute whom he introduced as La La, and the three went to the clothing store Forever 21, where defendant bought Z.H. a fitted, pink dress that La La picked out.
That evening, July 7, La La and Z.H. got dressed in the hotel room and took the bus with defendant to Capp Street. Defendant told Z.H. she would get used to being a prostitute and that she had to talk sweet to the customers. He also told her to use condoms when having sex with customers, but not while having sex with him, and to use a sponge if she was on her period. He told Z.H. to stay away from certain types of cars that tended to be used by undercover police officers. Z.H. had vaginal sex with two customers that evening. She turned the money over to defendant, who remained in the area, and they returned to the hotel early the next morning.
On the evening of July 8, Z.H. performed sex acts in exchange for money on Capp Street with seven customers. She performed sex acts for money again on the night of July 9. Around that time, defendant, La La and Z.H. moved from the Broadway Inn to the Civic Center Inn, and Z.H. performed sex acts for money in the Civic Center area as well. Z.H. also had vaginal sex with defendant, even though she was on her period and experiencing cramps. She told defendant she did not want to have sex with him, but he pinned her down by her forearms on the bed and had sex with her.
On July 10, after defendant had an argument with La La, defendant told Z.H., "Fuck that bitch, you my bottom bitch now." This term refers to the person a pimp trusts most and gives loyalty to.
On July 10 or 11, two of defendant's friends drove defendant and Z.H. to International Boulevard in Oakland. Defendant gave Z.H. a cell phone, saying he trusted her to have it and would be using it to contact her. While in Oakland, Z.H. was approached by a prostitute named Coya and agreed to leave with her. Defendant sent Z.H. several text messages from his friend's phone, but Coya told Z.H. not to reply. Defendant then texted, "LOL put it like this. Whoever got my bitch is stupid as fuck. I got eyes everywhere on God so whoever with the bitch, when she's found, getting the business. So just to let you know don't have her back in the Bay CTFU." Z.H. stayed with Coya and worked as a prostitute with her for a few days, turning the money over to Coya's pimp. Z.H. testified that she was afraid of Coya's pimp and did not feel free to leave. While staying in Oakland, Z.H. made some contact with friends and her mother.
During this time, Z.H.'s family had called the police after she did not return home by July 7. On July 12, police were contacted after Z.H. called one of her friends and said she was in Oakland. The friend called back and Z.H. answered, saying she was on International Boulevard.
On July 15, Daly City police detective Andre Bray located Z.H. in the International Boulevard area. Detective Bray took Z.H. down to the police station in Daly City. During an interview, Z.H. told the police officers a mix of truth and lies. After she disclosed that a crime had occurred in San Francisco, Bray called in authorities from that jurisdiction. Bray testified that although there were some inaccuracies in what Z.H. provided to him, "once we got past the initial and she broke down to me, I felt that she was telling me the truth from that point on." He further testified, over defendant's objection, that he believed her.
San Francisco police sergeant Antonio Flores interviewed Z.H. on July 15, August 1 and August 6, 2014, and she provided more and more information as time went on. Some of the information Z.H. provided to Sergeant Flores was different from what she provided to Detective Bray. Flores pressed her more about her activities in Oakland and about the inconsistencies between her version of events and the information extracted from the phone she got from defendant. In response, Z.H. revealed that after she left defendant, she was pimped out again by Coya.
B.C.
On December 31, 2014, B.C., aged 16, took a train with her friend Akili from the Richmond BART station to San Francisco where they met a boy named EJ and defendant, who introduced himself as Terrific. B.C. exchanged phone numbers with EJ, and the two girls then met with some friends to watch fireworks.
The next morning, the girls made plans to meet with EJ again. EJ came to Richmond to pick up the girls in a red Toyota driven by defendant. Within a few blocks, the car was pulled over and impounded by police. Friends of defendant and EJ then picked the group up at the Richmond BART station and drove them to San Francisco. During the drive, defendant sent a text message to his friend, Deshawn Birden, to find a hotel room. The group was eventually dropped off at the Amazon Motel where MacShawn was already staying. While the group was talking in the motel room, defendant and Akili left, but defendant returned without her. B.C. was concerned that it was getting late and that the BART trains would stop running, so she called her father and a friend, but her father did not answer, and the friend would not come. B.C. spent the night at the foot of EJ's bed while defendant slept on the other bed.
Birden is referred to in the record by several different names, including MacShawn, Magnificent, Shawn, and Shawny.
The next morning, Birden visited the motel room with two women who were dressed like prostitutes. B.C. called her friend Curtisa, and defendant arranged to have Curtisa picked up. B.C., EJ, defendant and Curtisa met at a hotel on Polk and Ellis Streets, where they drank orange juice and alcohol, while defendant and Curtisa also smoked marijuana. At one point, defendant turned off the light, and he and Curtisa, who was very intoxicated, began having sex on one side of the bed. EJ sat next to B.C. and put his hand on her leg, but when she pushed him away, he held her arms down and raped her. Defendant then said for them to switch partners. He held B.C.'s wrists and raped her while EJ had sex with Curtisa. Afterward, defendant left the room with Curtisa, and EJ held B.C. back so she could not leave. When defendant returned, he removed the SIM card from B.C.'s phone and told her he was her pimp, and that she would have to do as he said.
The next day, on January 3, defendant had vaginal and oral sex with B.C. twice without using a condom. He told her to use a condom with her "tricks" and gave her other instructions on how to be a prostitute. He gave her clothes and necklaces from Forever 21 and took her out to engage in prostitution. Defendant told B.C. to use a fake name and instructed her on how to talk to customers and on the prices for various sexual acts. He also told her to stay away from black men because they might be pimps. He gave her a cell phone so that he could communicate with her and stayed nearby when she was with customers. B.C. had vaginal sex with a customer and gave the money to defendant.
On January 4, B.C. had sexual intercourse with defendant three times, orally copulated him once, and engaged in commercial sex acts with two customers and gave the proceeds to defendant. On January 5, she had vaginal sex with defendant twice. B.C. testified that on each occasion, she did not want to have sex with defendant.
On January 5, defendant took B.C. out to find customers, but when B.C. tried to leave, they got into an argument, and defendant hit and choked B.C. B.C. then started calling her cousin, but defendant grabbed the phone out of her hand and hung it up. The cousin called back, and B.C. said she was in San Francisco. Later, B.C.'s cousins called defendant and told him that they had EJ and demanded that he let B.C. go. Defendant took B.C. back to the hotel, told her to change back into regular clothes, and allowed her to leave.
Defendant's Arrest and Jail Calls
Defendant was arrested on January 21, 2015. The arresting officer knew defendant as a drug dealer, not a pimp.
Jail call records indicate that defendant called his child's mother and his brother in November 2015. The officer who reviewed the phone calls, Sergeant Daniel Manning, testified that defendant had urged his child's mother and his brother to find La La and talk to her about disappearing, using coded language such as " 'see no evil, hear no evil,'" and " 'abracadabra.' "
Medical Evidence and Expert Testimony
Swabs taken from Z.H.'s cervix and vulva tested positive for semen, and a condom was found inside her vagina, but no foreign DNA was discernable on the swabs or condom. Nurse practitioner Joan Okasako testified that the optimal time for detecting genetic material is right after the sexual assault, but Z.H.'s exam was done four days after she left defendant and after she had been menstruating, making detection less likely. Swabs taken from B.C.'s vagina testified positive for semen, and foreign DNA was detected. Criminalist Taryn Aguilera testified that defendant was a possible source, and the probability of an unrelated individual having a DNA profile that matched the foreign profile was 1 in 21.3 quintillion in the African-American population.
The prosecution's expert on commercial and sexual exploitation, Sergeant Arlin Vanderbilt, testified that the Capp, Polk and Ellis Street areas are known for prostitution activity. Vanderbilt further testified that pimps often discourage their prostitutes from rendering services to black males out of concern that they might be pimps. He also testified that it is common for prostitutes to run away from one pimp only to be pimped out by another, and he interpreted defendant's text message to Z.H. after she left with Coya as "a pimp who's saying you took my prostitute and now you better watch out." Sergeant Vanderbilt also discussed three jail phone calls by defendant made in February and March 2015, which were played for the jury. Vanderbilt opined that in these calls, defendant was giving management advice related to pimping, including how to play "mind games" on the prostitutes under a pimp's control, and to separate or get rid of problematic prostitutes in the group. Text conversations recovered from one of defendant's phones also related to prostitution activity.
Evidence of Prior Crimes and Related Jury Instruction
Over defendant's objection, the trial court granted the prosecution's motion in limine to introduce evidence of two prior uncharged incidents involving defendant under Evidence Code section 1101, subdivision (b), to prove a common scheme or plan as to the charged crimes of pimping, pandering and human trafficking.
The first incident was an arrest that occurred on February 28, 2012, in Garden Grove. Officer Troy Haller, a vice unit investigator from 2009 to 2014, was driving on Harbor Boulevard, an area of focus in Garden Grove for street prostitution, when he responded to a call regarding suspected prostitution activity. Haller saw the female suspect, later identified as Taylor, wearing a leopard print skirt and engaging in short conversations with a male pedestrian and a male in a pickup truck before contacting two males, later identified as defendant and Birden. Based on his training and experience, Haller opined that Taylor was negotiating a sex act. The three were arrested, and Taylor was found with a cell phone, condoms, and lubrication inside her bra. She was later identified as a missing juvenile from Sacramento. Defendant and Birden were booked for supervising a prostitute (§ 653.23), and Taylor was booked for loitering with intent to commit prostitution (§ 653.22), but the district attorney ultimately filed charges only against Birden and Taylor.
The second incident was an arrest that occurred on August 18, 2013, in San Francisco. San Francisco police officer Antonio Balingit, who had worked in the Mission District for seven years, testified that he was patrolling the Capp Street corridor when he observed defendant three separate times over the course of several hours loitering in the area of 20th Street and Capp Street, and engaging in brief conversations with passersby. Balingit eventually stopped defendant and recognized him from prior stops for prostitution-related activity in the area while in the company of a known pimp named Brazil Harris. Balingit arrested defendant and charged him with loitering with intent to commit prostitution.
The trial court gave the following instruction: "The People presented evidence of other behavior by the defendant that was not charged in this case as a crime. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed such acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden, you must disregard this evidence entirely. [¶] If you decide that the defendant committed such acts, you may but are not required to consider that evidence for the limited purpose of deciding whether or not the defendant had a plan or scheme to commit the pimping and pandering offenses alleged in this case. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses. [¶] Do not consider this evidence for any other purpose. [¶] Do not consider from this evidence other acts that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of pimping and/or pandering. The People must still prove each charge and allegation beyond a reasonable doubt."
DISCUSSION
I. CALCRIM No. 361
The trial court instructed the jury with CALCRIM No. 361, which states: "If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to have done so [based] on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of such failure. [¶]"
Defendant argues that CALCRIM No. 361 violated his Fifth Amendment right to testify in his own defense and his Fourteenth Amendment right to a fair trial because the instruction improperly singled out his testimony for special scrutiny. Defendant contends that to avoid the " 'singling out' problem" and the chilling effect it has on the constitutional right of criminal defendants to testify, the substance of CALCRIM No. 361 should be incorporated into CALCRIM No. 226, which instructs the jury on judging the credibility or believability of all witnesses. Defendant additionally argues it was error to give CALCRIM No. 361 because the instruction lacked an evidentiary foundation, since he had denied or otherwise explained all material evidence presented against him.
The Attorney General argues that the constitutionality of CALCRIM No. 361 has already been upheld in several controlling decisions. The Attorney General further argues the instruction was properly given in this case because defendant offered no explanation for why his phone number appeared on a sex-related advertisement on the media site Backpage for a woman named Diamond.
We review claims of instructional error de novo. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066 (Rodriguez).)
a. Constitutionality of CALCRIM No. 361
Defendant acknowledges that the Supreme Court in People v. Saddler (1979) 24 Cal.3d 671 (Saddler) rejected a constitutional challenge to CALJIC No. 2.62, a substantively similar instruction to CALCRIM No. 361. The court held that CALJIC No. 2.62 did not violate the privilege against self-incrimination, deny the defendant the presumption of innocence, or lighten the prosecution's burden to prove guilt beyond a reasonable doubt. (Id. at pp. 679-680.) In rejecting the argument that the instruction impermissibly singled out a defendant's testimony, Saddler held that the "instruction was consistent with Evidence Code section 413 which permits the drawing of inferences from any party's failure to explain or deny evidence against him." (Id. at pp. 680-681.)
CALJIC No. 2.62 reads as follows: "In this case defendant has testified to certain matters. [¶] If you find that [a] [the] defendant failed to explain or deny any evidence against [him] [her] introduced by the prosecution which [he] [she] can reasonably be expected to deny or explain because of facts within [his] [her] knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against [him] [her] does not, by itself, warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. [¶] If a defendant does not have the knowledge that [he] [she] would need to deny or to explain evidence against [him,] [her,] it would be unreasonable to draw an inference unfavorable to [him] [her] because of [his] [her] failure to deny or explain this evidence."
Defendant also acknowledges that the Court of Appeal in Rodriguez applied Saddler in rejecting a constitutional challenge to CALCRIM No. 361. (Rodriguez, supra, at pp. 1066-1068.) Defendant asks us to reexamine the issues decided by Saddler and Rodriguez but provides no compelling basis to do so. Most of his arguments were rejected in those cases, and he does not argue the instant matter is materially distinguishable. Defendant's contentions that the instruction has a chilling effect on a defendant's decision to testify and that the substance of CALCRIM No. 361 should be incorporated into CALCRIM No. 226 were rejected by another panel of this division in People v. Vega (2015) 236 Cal.App.4th 484 (Vega), which held that "[t]hese arguments are more appropriately pitched to the Legislature and the Judicial Council." (Id. at pp. 498, 499-500.) We see no reason to revisit these arguments, and therefore turn to defendant's second reason for objecting to this jury instruction.
b. Evidentiary Foundation for Giving CALCRIM NO. 361
CALCRIM No. 361 "applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge." (People v. Cortez (2016) 63 Cal.4th 101, 117.) We think there was one piece of the case against him that defendant failed sufficiently to explain or deny, but even if it was error for the court to give this jury instruction, any such error was harmless.
The Attorney General argues defendant failed to explain how one of his phone numbers became associated with a sex ad for a woman named Diamond. The phone number on the advertisement was (209) 596-7607. Defendant testified that this phone number was his, but claimed he did not know the woman depicted in the ad, and that she was not the same Diamond listed in his phone contacts. When asked if the phone associated with the 209 number was active under his name, defendant responded, "I think. . . . Probably."
Prior to this exchange, defendant testified that he had a Samsung Galaxy phone that he had loaned to a prostitute named Chantel in May or June 2014. He further testified that he lost this phone in July 2014 after he left it in the car of an acquaintance named Tori, also a prostitute. According to defendant, there were two other women inside the car dressed like prostitutes, and one of the women could have been Z.H. The phone number associated with the Samsung Galaxy had a 408 area code (later changed to a number with a 925 area code). Defendant testified that he loaned B.C. the 209 area code phone, and that he had "lost a lot of phones." Defendant argues this testimony provided a sufficient explanation for the presence of his 209 phone number on the Backpage ad.
On this record, the Attorney General has the better argument that the instruction was properly given. Defendant's testimony about loaning his phone to Chantel and having his phone go missing after he left it in Tori's car did not provide the necessary explanation because those instances did not involve the phone with the 209 number. Defendant's testimony that he loaned the phone with the 209 number to B.C. and "lost a lot of phones" also did not explain how the 209 number ended up on the ad.
But even if it was error to give CALCRIM No. 361, the error was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)—that there is no reasonable probability defendant would have achieved a more favorable outcome without the error. (See Saddler, supra, 24 Cal.3d at p. 683 [applying Watson standard].)
The Backpage ad was one small piece of evidence in the record, which otherwise more than adequately supported defendant's guilt for pimping, pandering, and commercial sex trafficking of a minor. Z.H. and B.C. each testified about similar experiences occurring within 6 months of one another in which defendant told both girls he was a pimp, took them to the Capp Street and Civic Center areas to engage in prostitution, supplied them with apparel from Forever 21, and gave them instructions on pricing and how to deal with customers. Defendant's threatening text message to Z.H. after she left with Coya, as well as his statements in the jail phone calls and the text messages entered into evidence, provided further support for the finding that he was engaged in prostitution activity as a pimp.
Meanwhile, the impact of CALCRIM No. 361 was mitigated by the language of the instruction itself and the jury instructions as a whole. The instruction did not direct the jury to draw any adverse inferences, but left it to the jury to determine if defendant had failed to explain or deny evidence against him, and also to decide the "meaning and importance" of any such failure. It instructed the jury that the failure to explain or deny alone is not a sufficient basis upon which to infer guilt, and it highlighted the prosecution's burden to prove guilt beyond a reasonable doubt. (See Vega, supra, 236 Cal.App.4th at p. 502.) The trial court also advised the jury that not all instructions were necessarily applicable and advised the jurors to follow the instructions that applied to the facts as they found them, which mitigated any prejudicial effect related to CALCRIM No. 361. (Id. at pp. 502-503.)
In light of the strong evidence of defendant's guilt and the jury instructions as a whole, it is not reasonably probable that defendant would have obtained a more favorable verdict had CALCRIM No. 361 not been given.
II. Evidence of Prior Crimes
Defendant argues the prior uncharged incidents in 2012 and 2013 lacked sufficient similarity to the charged crimes to be admissible evidence of a common design or plan under Evidence Code section 1101, subdivision (b). Defendant contends the error was inherently prejudicial, allowed the prosecution to argue guilt by association, and encouraged the jury to convict him for the prior uncharged offenses.
a. Legal Standards
"Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes. [Citation.] Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.] On appeal, the trial court's determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]" (People v. Kipp (1998) 18 Cal.4th 349, 369.)
"[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' [Citation.] . . . . [¶] [T]he 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. . . . 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, 402-403 (Ewoldt).)
Additionally, "to be admissible such evidence 'must not contravene other policies limiting admission, such as those contained in Evidence Code section 352. [Citations.]' [Citation.] We thus proceed to examine whether the probative value of the evidence of defendant's uncharged offenses 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.' [Citation.]" (Ewoldt, supra, at p. 404.) "In general, 'the probative value of the evidence must be balanced against four factors: (1) the inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues; (3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses.' [Citation.]" (People v. Daniels (2009) 176 Cal.App.4th 304, 316.)
b. The 2012 Garden Grove Arrest
In our view, the trial court acted within the bounds of reason by admitting the evidence of defendant's arrest in Garden Grove in 2012. Defendant was arrested in an area known for prostitution and was seen contacting a female (later found to be a missing juvenile like Z.H. and B.C.) who appeared to be soliciting customers for prostitution, according to the testimony of an experienced vice officer. Defendant's companion during the Garden Grove incident, Birden, was charged in that incident with supervising a prostitute, and was also present when defendant first took B.C. to a San Francisco motel and began prostituting her. Given these similarities, the evidence showed a concurrence of common features between the uncharged and charged acts to suggest the existence of a general plan. (Ewoldt, supra, 7 Cal.4th at pp. 402-403.)
The probative value of this evidence was not substantially outweighed by the probability of prejudice. (Evid. Code, § 352; Ewoldt, supra, at p. 404.) The uncharged conduct was not more inflammatory, and in fact, was less egregious than the charged acts of forcible rape and oral copulation. Nor was the evidence of the Garden Grove incident too remote in time, as it occurred less than three years prior to the crimes involving Z.H. and B.C. There was no undue consumption of time, since only one witness testified for a portion of one day. Given this limited presentation of evidence, as well as the distinct geographical location where the prior incident took place, we think there was no danger of confusing the issues or distracting from the main issues in the case. Thus, we find no abuse of discretion by the trial court in admitting the evidence of defendant's 2012 arrest in Garden Grove.
c. The 2013 Capp Street Arrest
The 2013 Capp Street arrest presents a closer call. In this incident, defendant appeared to be alone and was not seen communicating with any females. He was also seen engaging in brief conversations with passersby, which differed from the evidence of the charged crimes that he directed Z.H. and B.C. to negotiate with the customers. Although the Capp Street area was known for prostitution, it was also known for drug activity, and defendant was a known drug dealer. Unlike the prior incidents in which Officer Balingit stopped defendant in the area, defendant was not in the company of a known pimp during the incident in question.
Despite these factual dissimilarities, we cannot say the trial court abused its discretion in admitting this evidence. Any inference that defendant was engaged in drug dealing rather than pimping in the 2013 incident was rebutted by Balingit, who testified, based on his observations and experience, that defendant was not trying to sell drugs that night because he had no money or drugs on his person when he was arrested. Furthermore, both Z.H. and B.C. testified that defendant remained in the area while they solicited customers, and defendant's conduct in the 2013 incident could have reasonably been seen as consistent with this practice. Applying the deferential standard of review on the trial court's determination of relevance, it was not outside the bounds of reason for the trial court to conclude that the 2013 Capp Street incident sufficiently bore common features with the charged acts to suggest a general plan as to how defendant supervised prostitution in the Capp Street area. For the same reasons discussed above with respect to the Garden Grove arrest, the probative value of the Capp Street arrest was not substantially outweighed by the probability of prejudice. (Evid. Code, § 352; Ewoldt, supra, at p. 404.) Finally, even if there was error, it was harmless precisely because the evidence of defendant's conduct during the 2013 incident had proved little, if anything, that was not well-established by other evidence.
Accordingly, we find no prejudicial error in the trial court's admission of the prior acts evidence under Evidence Code section 1101, subdivision (b).
III. Opinion Testimony
Defendant argues it was error for the trial court to permit Detective Bray to testify that he believed Z.H. because a witness may not express an opinion on a defendant's guilt or innocence. We review the trial court's exercise of discretion in admitting this testimony for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
We do not find this claim of error to be forfeited. Defense counsel initially objected to the question as calling for a legal conclusion. The trial court was inclined to sustain the objection as calling for an opinion, but then said to the prosecutor, "You can ask him if he believed her," which the prosecution did. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 [exception to waiver rule where objection would have been futile].)
"[A] witness cannot express an opinion concerning the guilt or innocence of the defendant." (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) "Lay opinion about the veracity of particular statements by another is inadmissible on that issue. . . . With limited exceptions, the fact finder, not the witnesses, must draw the ultimate inferences from the evidence. . . . A lay witness is occasionally permitted to express an ultimate opinion based on his perception, but only where 'helpful to a clear understanding of his testimony' [citation], i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed." (People v. Melton (1988) 44 Cal.3d 713, 744.)
Relying on People v. Brown (2001) 96 Cal.App.4th Supp. 1 (Brown), the Attorney General argues that Detective Bray's testimony was properly admitted for the limited purpose of explaining why he ultimately contacted the San Francisco Police Department about a crime having been committed in their jurisdiction. In Brown, the officers' testimony about a witness's credibility was admissible because it was helpful to the jury's understanding of the actions of the police "[i]n light of appellant's theory that the police acted unreasonably and grossly overreacted to the situation . . . ." (Brown, supra, at p. 33.) In contrast, defendant did not contend that Detective Bray acted unreasonably in referring the matter to the San Francisco Police Department or in any other way after his interview with Z.H. Thus, the reasonableness of his actions based on his belief in Z.H.'s credibility was not at issue. Nor was Detective Bray's lay opinion about Z.H.'s credibility admissible because, as the trial court noted, he did not know Z.H. "well enough to have an opinion on her character trait of—for telling the truth." (See People v. Sergill (1982) 138 Cal.App.3d 34, 39, 40 [officers' testimony regarding child victim's credibility was irrelevant because they were not experts and "neither knew the child, nor knew her reputation for truthfulness"].)
Nevertheless, we think the error in allowing this testimony was harmless because it is not reasonably probable that a result more favorable to defendant would have been reached had Detective Bray's opinion testimony been excluded. (Watson, supra, 46 Cal.2d at p. 836.) Just before giving the challenged testimony, Detective Bray testified, without objection, that after Z.H. had broken down to him, he felt she was telling the truth from that point on. His subsequent statement that he believed her, even if erroneously admitted, simply repeated his previous, unchallenged testimony. While Z.H.'s credibility was significant to the prosecution, the jury personally viewed her testimony on the stand and was properly instructed that it was the sole judge of witness credibility. Z.H.'s testimony was bolstered by the similarities between her experiences with defendant and those of B.C., as well as the other evidence in the record which more than adequately supported defendant's guilt for pimping, pandering, and commercial sex trafficking.
IV. Cumulative Error
Finally, we reject defendant's argument that the cumulative effect of the alleged errors at his trial requires reversal of his conviction. The errors we have found or assumed for purposes of argument were harmless under any standard, whether considered individually or collectively, and they did not deny defendant due process and a fair trial. (See People v. Williams (2009) 170 Cal.App.4th 587, 646; People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
DISPOSITION
The judgment is affirmed.
/s/_________
Tucher, J.
We concur:
/s/_________
Streeter, Acting P.J.
/s/_________
Judge of the Superior Court of California, City and County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------