Opinion
D047458
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD HAMMOND, Defendant and Appellant.
A jury convicted James Edward Hammond of five counts of pimping (Pen. Code, § 266h, subd. (a)) and five counts of pandering (§ 266i, subd. (a)(1)). After the verdict, Hammond admitted that he had four prior prison term convictions (§ 667.5, subd. (b)), one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced Hammond to 26 years eight months in prison.
All statutory references are to the Penal Code unless otherwise specified.
Hammond appeals, contending that: (i) the evidence presented at trial was insufficient to support the verdicts; (ii) the trial court erred by failing to instruct sua sponte on lesser included offenses and on applicable defenses; and (iii) he was denied effective assistance of counsel during trial. We conclude that there is no merit to Hammonds contentions and affirm the judgment.
FACTS
The evidence presented at trial consisted primarily of the testimony of two 18-year-old women employed by Hammond, Naomi M. (Naomi) and Randi C. (Randi). Based on their testimony and that of undercover police officers with whom they cooperated, Hammond was convicted of pandering by procuring Naomi for prostitution on three separate occasions, and pandering by procuring Randi for prostitution on two separate occasions. For each of those five total occasions, Hammond was also convicted of the felony offense of pimping.
The facts underlying the counts for which Hammond was convicted are as follows:
A. Facts Related to Convictions for Pandering and Pimping of Naomi (Counts 2-7)
In early September 2004, Naomi met Hammond while she was working at a gas station. Hammond asked Naomi to work as a dancer for his company, Kann Kann Entertainment. Naomi agreed.
1. September 6, 2004 (Counts 2 & 3)
On September 6, Hammond called Naomi and told her he had a dancing job for her that evening. Hammond informed Naomi that the client "might expect more" than just dancing, "and if you do more, youll make more."
Hammond and an associate drove Naomi to the home of the client, "Cameron." Hammond told Naomi that his cut of the proceeds would be $180 and anything beyond that would go to her. When Naomi went in to see Cameron, Cameron gave her a check and about $200 in cash. Cameron informed Naomi that he was lonely and led her to his bedroom where he started hugging and kissing her. Naomi told Cameron that she was only willing to engage in oral sex, and then proceeded to perform oral sex on him. After she was finished, Hammond came into the house and he and Naomi left together. Naomi gave Hammond the check and the cash, and informed him that she had performed oral sex on Cameron. Hammond kept the check and returned the cash to Naomi.
Hammond then took Naomi to his room at a Motel 6 in Carlsbad, the center of his business operations. Hammond told Naomi that it was "better if you do more" with clients because "if [she] did more, [she]d make more" money. Hammond also told Naomi that if she "loosened up" by drinking alcohol before going out, she "could do everything and make a lot more money." While in the hotel room, Hammond "show[ed] [Naomi] things that could improve [her] business," which culminated in his having sex with her. Hammond and Naomi then got back into his car, which was soon stopped by police who were watching the motel.
A police officer testified that the motel was notorious for "criminal activity," including prostitution.
Naomi was "thrilled" to be stopped, and took the opportunity to separate herself from Hammond. Police officers questioned Naomi, and she eventually informed Detective Mark Reyes that she was willing to cooperate in his investigation of Hammond.
2. September 16, 2004 (Counts 4 & 5)
On September 16, Reyes, identifying himself as a client named "Patrick Armstrong," telephoned Hammond and asked to have "Ginger" — the alias Hammonds business used for Naomi — meet him at his room at the Carlsbad Hilton Garden Inn. Hammond told him Ginger was "available" and that he would send her to the room.
Hammond then called Naomi and told her to go to the Hilton to see "Patrick." Hammond instructed Naomi to call him when she arrived, get the money up front, and make sure Patrick was not a police officer. Naomi went to the hotel room where she met Reyes. She called Hammond from the hotel room and informed him that Patrick wanted to have sex; Hammond stated that it was up to her, but if she did have sex, she should charge "at least three hundred" dollars.
After Hammond hung up, Reyes gave Naomi $800 in police funds. Naomi then drove to a pool hall and gave Hammond the $800. Hammond took $200 and gave Naomi the rest.
3. September 23, 2004 (Counts 6 & 7)
On September 23, Reyes, identifying himself as "Patrick," again called Hammond asking for "Ginger." Hammond said she was available and, after getting off the phone with Reyes, called Naomi. Hammond then arranged a three-way phone call in which Reyes told Naomi he hoped their encounter that evening would go "a little bit longer" than the previous one. Hammond then arranged for Naomi to meet Reyes at his room in the Hilton. After Reyes got off the line, Hammond told Naomi that since "Patrick" wanted more time with her, it would cost him more. Hammond also told Naomi that her failure to respond to his calls earlier that week had cost her about $ 9,000 in lost opportunities.
Hammonds phone calls with the undercover police officers and with Randi and Naomi were recorded, and the tapes were introduced into evidence.
Naomi met Reyes at the Hilton hotel room. She then called Hammond and told him Patrick wanted to have sex. Hammond told her to get the money first and call him back when she was finished. Reyes then gave Naomi $660 of police funds. When she again called Hammond, he instructed Naomi to take the money to an associate of his, "Carl," who would be waiting at the Motel 6. Naomi followed Hammonds instructions and gave Carl the $660. After telephoning Hammond, Carl kept $360 for Hammond and gave Naomi the remaining $300.
B. Facts Related to Convictions for Pandering and Pimping of Randi (Counts 11-14)
Randi met Hammond at a court-ordered class for drunk driving offenders. Hammond gave her a business card with his cell phone number and the business name "Spice Girlz Adult Entertainment," and told her that his clients wanted dancing, massages and conversation. Later, Randi called Hammond and told him she was interested. Hammond asked her to come see him at the Motel 6. In Hammonds hotel room, Randi had "an audition" where Hammond told her to take off her clothes and give him a "lap dance." After the lap dance, Hammond and Randi had sex.
In discussing the business arrangement, Hammond informed Randi she did not have to have sex with the clients, but if she did, she should ask for at least $800. Hammond told Randi that otherwise, the standard fee was $200 split evenly between them. Randi understood from her conversations with Hammond and the other women who worked for Hammond that the way to make more money was to "put out more."
1. October 27, 2004 (Counts 11 & 12)
On October 27, at Reyess direction, Sergeant Charles Gaylor called Hammond and asked for a girl to be sent to his room; Hammond said he would send someone. Randi arrived a short time later. Gaylor asked Randi for sex, and she offered him a "blow job"; Randi stated she would have intercourse with Gaylor for an additional $700. Randi undressed and when she got on the bed with Gaylor, Gaylor gave a pre-arranged signal resulting in Randis arrest.
After her arrest, Randi, like Naomi before her, agreed to work as a confidential informant. Reyes then took her to the police station and gave her $300 of police department funds and asked her to contact Hammond. When she did, Hammond agreed to meet Randi at a gas station. At the gas station, Randi told Hammond she had sex with the client. Hammond told her that was good. Randi gave the money to Hammond, who took $100 and gave her $200.
2. November 2, 2004 (Counts 13 & 14)
A few days before November 2, Reyes, again posing as "Patrick," telephoned Hammond and asked for someone other than Ginger, preferably someone who would perform anal sex. Hammond told Reyes he would see what he could do. Reyes called again on November 2, and made the same request. Hammond asked how much Reyes would pay; Reyes said $200, but $500 for anal sex. Hammond said he would try to find someone and call him back.
In response to Reyess request, Hammond telephoned Randi. Hammond asked Randi if she had engaged in anal sex before. Hammond was concerned when Randi responded that she had, telling Randi they would be able to "get more money if you say youve never done it before." Hammond asked Randi if it was "still tight as a whistle?" Randi said, "Yeah." Hammond expressed frustration that Randi had not told him earlier about this, because if she had, he "would have been giving [her] some good ass calls." Hammond told Randi where Patrick was staying, that she should charge him between $600 and $800, and that when she was finished, she should drop off $200 of the money with an associate of his named "Jonathan" at the Motel 6. Hammond also advised Randi to bring lubricant.
Hammond then called Reyes and told him he had arranged someone for him who had "never done" anal sex before, and she would come see him. When Randi and Reyes met at the hotel room, Reyes gave Randi $800 of police department funds. Randi then called Hammond and he arranged for them to meet. Randi gave Hammond the $800 and he returned all but $200 to her.
In addition, the prosecution presented evidence that on November 9, the police executed a search warrant at Hammonds home in Carlsbad. The police located papers documenting the girls that were working for Hammond, his clients and their preferences, and notes regarding meeting places, dates and dollar amounts as well as advertisements for Hammonds various businesses, which depicted nude or partially-nude photos of women. In an earlier stop of Hammonds car, police also found a paper with 15-22 names and a corresponding description of height, weight and "experience."
DISCUSSION
I
The Evidence Is Sufficient to Sustain the Jurys Verdicts
Hammond contends that the evidence was insufficient to sustain a guilty verdict for any of the 10 counts for which he was convicted. Specifically, he argues: (i) the evidence was insufficient to support a conviction on counts 4-7 and counts 11-14, because those counts did not involve any real prostitution but were, in fact, "staged" by undercover police officers; (ii) the evidence was insufficient for counts 2 and 3, and counts 11 and 12, because the evidence supporting those counts did not show that Hammond was aware that prostitution — as opposed to just dancing — would occur; and (iii) the evidence was insufficient with respect to counts 2 and 11, because the evidence supporting those counts showed that Hammond took only the "agency fee" from Randi and Naomi and thus did not profit from any prostitution. We address each of these contentions separately below, after setting forth the applicable standard of review.
A. Standard of Review
Our role in reviewing a challenge to the sufficiency of evidence is a limited one. "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal is not warranted "unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. " (People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).)
When a defendant bases a challenge to the evidence supporting his conviction on an assertion of factual impossibility — e.g., that the offense charged could not have been committed because of the involvement of undercover officers — our analysis is unchanged. The appellate court need not dwell on "`the niceties of distinction between physical and legal impossibility, " but instead will "focus on the elements of the crime and the intent of the defendant." (People v. Rizo (2000) 22 Cal.4th 681, 684-685 (Rizo).) "Where a defendant has the requisite criminal intent but `elements of the substantive crime [are] lacking due to `circumstances unknown to him, he can only be convicted of attempt — and not the substantive crime itself." (Id. at p. 685.) "If, however, the evidence at trial is sufficient to establish all elements of the crime, then the defendant may be found guilty of the substantive crime." (Ibid.)
B. The Evidence Was Sufficient to Establish that Hammond Committed Completed Offenses of Pandering and Pimping
Hammond contends that the evidence was insufficient to support a conviction on any of the counts that involved "staged" dates because the participation of undercover police officers made the offenses of pandering and pimping factually impossible to complete. He argues that in these circumstances, where neither the prostitute nor the customer ("john") engaged in or intended to engage in prostitution, the most a defendant can be convicted of is attempted pimping and pandering. We disagree.
Under the pandering statute, as applicable here, a completed offense is committed if a person either "[p]rocures another person for the purpose of prostitution" (§ 266i, subd. (a)(1)); or "[r]eceives . . . any money . . . for procuring, or attempting to procure, another person for the purpose of prostitution . . ." (§ 266i, subd. (a)(6)). Neither applicable subdivision of the statute requires that an actual act of prostitution occur or be contemplated by the prostitute or john. The first quoted subdivision requires only that the defendant, believing prostitution is to occur, procures another person for that purpose. (§ 266i, subd. (a)(1).) The second quoted subdivision is even broader, stating that the statute is violated if the defendant receives any money for attempting to procure another person for the purpose of prostitution. (§ 266i, subd. (a)(6).)
The pandering statute states: "(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering . . . : [¶] (1) Procures another person for the purpose of prostitution. [¶] . . . [¶] (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution . . . ." (§ 266i, subd. (a)(1), (6).)
With respect to this offense, the jury was instructed: "Every person who procures another person for the purpose of prostitution, or receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, is guilty of the crime of pandering by procuring in violation of section 266i[, subdivision (a)(1).] [¶] . . . [¶] In order to prove this crime, each of the following elements must be proved: 1. A person procured another person for the purpose of prostitution; or 2. A person received or gave, or agreed to receive or give, money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution."
While both the instruction and the verdict forms explicitly reference subdivision (a)(1) of the pandering statute, the actual text of the instruction incorporates both subdivision (a)(1) and subdivision (a)(6) of section 266i. Hammond did not object below, and does not challenge on appeal the trial courts pandering instructions or the verdict forms provided to the jury.
The witness testimony in the instant case (which was supplemented by recordings of Hammonds own conversations with both the undercover officers and the cooperating witnesses) constituted substantial evidence to support a conviction for each challenged pandering count, based on either or both of the above-described subdivisions of the pandering statute. Under the plain language of the statute, and the jurys instructions as to the elements of the pandering offense, a rational jury could have concluded that Hammond violated section 266i, subdivision (a)(1) by procuring Naomi and Randi for the purpose of prostitution, or section 266i, subdivision (a)(6) by receiving money for procuring or attempting to procure Naomi and Randi for the purpose of prostitution. (See Rizo, supra, 22 Cal.4th at p. 686 [upholding conviction for "sale of `false documents . . . `to conceal the true citizenship or resident alien status of another person " where defendant sold American citizenship documents to undercover police officers who were citizens because statute "by its terms, focuses solely on the acts and intent of the violator"].) These conclusions are in no way inconsistent with the fact that no actual act of prostitution took place or was contemplated by the prostitute or john involved. (Cf. Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 437 (Wooten) ["pimping and pandering do not require a completed act of prostitution"]; Rizo, at p. 685 [conviction is valid despite assertions of factual impossibility as long as "the evidence at trial is sufficient to establish all elements of the crime"].)
Hammonds pandering convictions could permissibly be based on either, or both, of the statutory subdivisions incorporated in the jurys instructions because jurors are not required to unanimously agree upon "disparate alternative means by which a single offense may be committed." (People v. Sutherland (1993) 17 Cal.App.4th 602, 613 ["where a statute prescribes disparate alternative means by which a single offense may be committed, no unanimity is required as to which of the means the defendant employed so long as all the members of the jury are agreed that the defendant has committed the offense as it is defined by the statute"]; cf. Bolin, supra, 18 Cal.4th at p. 331 [reversal is not warranted on the grounds of insufficient evidence "unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence "].)
The evidence was also sufficient for conviction of each challenged pimping count. Under the pimping statute, a completed offense is committed when "any person who, knowing another person is a prostitute, . . . solicits or receives compensation for soliciting for the person." (§ 266h, subd. (a).) Again, the statute contains no implicit or explicit requirement that there be a completed act of prostitution, or that one be contemplated by the prostitute or john. (Wooten, supra, 93 Cal.App.4th at p. 437.) The statute requires only that the defendant knowingly solicit or receive compensation for the services of a prostitute. (People v. McNulty (1988) 202 Cal.App.3d 624, 630.) Thus, in the instant case even though no actual act of prostitution occurred or was contemplated by the prostitute or john, the prosecutions evidence supports a rational conclusion that Hammond violated the statute by knowingly soliciting compensation for the prostitution services of Randi and Naomi.
The pimping statute states: "[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the persons prostitution . . . , or who solicits or receives compensation for soliciting for the person, is guilty of pimping . . . ." (§ 266h, subd. (a).)
The jury was instructed: "Every person who knowing another person is a prostitute, lives or derives support or maintains, in whole or in part, from the earnings or proceeds of that persons prostitution, . . . or solicits or receives compensation for soliciting for the person, is guilty of the crime of pimping, in violation of . . . section 266h, subdivision (a). . . . In order to prove this crime each of the following elements must be proved: (1) The defendant knew that the other person was a prostitute; and (2) That defendant lived or derived support or maintenance in whole or in part from the earnings or proceeds of the other persons prostitution . . . . Or two, that defendant solicited or received compensation for soliciting customers for the prostitution service of the other person."
Hammonds reliance on People v. Smith (1955) 44 Cal.2d 77 for the contention that felony pimping "requires there to be real prostitution proceeds received by the pimp" is unavailing. Smith merely holds that in light of the statutory requirement that a person "solicit[] or receiv[e] compensation for soliciting," the pimping offense is not committed by soliciting customers for prostitutes absent evidence that the defendant solicited or received compensation for doing so. (Id. at p. 80.) The Smith opinion is limited to this narrow point and nowhere suggests, as Hammond contends, that a conviction requires a completed act of prostitution.
The other cases that Hammond relies on for his contentions with respect to both the pimping and pandering counts do not concern the statutory sections for which he was convicted and thus do not provide any guidance for the central question on appeal — whether the requisite elements for a conviction under those sections were supported by the evidence presented at trial. (Rizo, supra, 22 Cal.4th at pp. 684-685.)
C. The Evidence Was Sufficient to Establish that Hammond Had the Requisite Intent for Conviction on Counts 2 and 3, and Counts 11 and 12
Hammond also contends that the evidence was insufficient to support a conviction on counts 2 and 3 (September 6), and counts 11 and 12 (October 27), because there was "a complete dearth" of evidence that the acts of prostitution involved in those counts were "intended, planned, or even foreseen by [Hammond]." Although Hammond is correct that if the facts were as he described, a conviction could not stand, his characterization of the evidence is erroneous.
To be convicted of pimping or pandering, a defendant must knowingly solicit compensation for acts of prostitution (pimping) or knowingly procure a person for the purpose of prostitution (pandering). Consequently, a conviction cannot be upheld for either offense if the defendant merely solicits compensation for, or procures another person for, a lawful purpose such as dancing. This is true even if the person procured or for whom the defendant solicits compensation, independently, and without the defendants knowledge, engages in an act of prostitution. (See Wooten, supra, 93 Cal.App.4th at p. 437 [managers of strip club could not be convicted of pimping or pandering based on evidence that dancer offered to give undercover officers a "`hand job" because there was no evidence the defendants knew the dancer was doing anything beyond erotic dancing].)
As summarized above, Wooten, supra, 93 Cal.App.4th 422, is easily distinguishable from the instant case. In Wooten, there was no evidence that the strip club managers were even aware that one of the strippers intended to or had offered to engage in an act of prostitution. (Id. at p. 437.) By contrast, in the instant case there was abundant evidence that Hammond was aware of and, in fact, encouraged Randi and Naomi to engage in acts of prostitution.
Relying on the above legal principle, Hammond contends that he could not be found guilty of the specified counts because there was no evidence that Hammond knew Naomi or Randi were going to engage in any acts of prostitution. According to Hammond, the applicable evidence conclusively demonstrates instead that he intended to procure persons and solicit compensation for dancing, and Naomi and Randi independently, and without his knowledge, introduced an unintended element of prostitution. Contrary to Hammonds contention, however, there was sufficient evidence for the jury to conclude that Hammond believed and intended that the September 6 and October 27 dates would involve prostitution.
With respect to September 6 (counts 2 & 3), the evidence showed that Hammond set up the "date" with Cameron and instructed Naomi that the client "might expect more" than just dancing, and that if she did "more," she would make more money. In fact, when Naomi arrived at Camerons home, it became clear that Cameron was not interested in dancing at all, just sex. When Hammond later debriefed Naomi, she told Hammond she only performed oral sex on Cameron; Hammond told her that it was "better if [she] d[id] more" with clients because "if [she] did more, [she]d make more" money, and that if she "loosened up" by drinking alcohol before going out, she "could do everything and make a lot more money."
With respect to October 27 (counts 11 & 12), the evidence showed that again Hammond arranged the "date" and prior to sending Randi out, Hammond "auditioned" her by having sex with her, and instructed her how much she should charge if she had sex with a client. Hammond also instructed Randi to ask the clients to take off their pants in order to determine if they were police officers. Immediately after the October 27 date, Randi gave the $300 she received from the police to Hammond, and told him that she and the client had sex. Hammond said that "was good."
This evidence alone is sufficient with respect to both the September 6 and October 27 dates to support a rational conclusion that Hammond had the requisite intent to violate the pimping and pandering statutes — i.e., that he knowingly procured Naomi and Randi for the purpose of prostitution and solicited and/or received compensation for prostitution.
In addition, the jury was not required to consider the evidence with respect to each count in a vacuum. In evaluating Hammonds mental state, the jury was permitted to consider all of the relevant circumstantial evidence presented in the case. (People v. Lewis (2001) 26 Cal.4th 334, 379 ["`Reliance on circumstantial evidence is often inevitable when, as here, the issue is a state of mind such as knowledge "].) This evidence demonstrated that Hammond routinely sent Randi and Naomi to clients who were seeking prostitution, and eagerly collected a portion of the proceeds after both Randi and Naomi informed him that they had, in fact, engaged in sex with the clients. In addition, Hammond regularly encouraged Randi and Naomi to "do more" with the clients, to the point of suggesting they use alcohol and avoid relationships to diminish their inhibitions to performing sex acts.
In sum, the totality of the circumstantial evidence allowed the jury to conclude that Hammond had the requisite knowledge and intent for convictions of pandering and pimping with respect to the events of September 6 and October 27. Consequently, we will not overturn the jurys verdicts on this ground.
Without explaining the significance of the point, Hammond states in his reply brief that "a woman who is not a prostitute is by definition not `procured or had for prostitution until she is actually had for that purpose." Whatever the merits of this contention, it has no relevance to the instant case as there was sufficient evidence for the jury to conclude that Naomi and Randi were prostitutes.
D. The Evidence Was Sufficient to Convict Hammond on Counts 2 and 11 Despite Hammonds Contention that He Took Only the "Agency Fee"
Hammond contends that his convictions with respect to counts 2 and 11 must be reversed because the evidence established he took only the "agency fee" and thus did not solicit or receive compensation for prostitution, as required for a pimping conviction.
Even were we to accept Hammonds factual contention that he only accepted the "agency fee" for the "dates" underlying counts 2 and 11, the evidence is still sufficient to support a conviction for pimping on those counts. The pimping statute requires only that Hammond solicit or receive "compensation" for soliciting for prostitution. (§ 266h, subd. (a).) Here, because the prosecutions evidence permitted the jury to conclude that Hammond encouraged and intended Naomi and Randi to engage in acts of prostitution (i.e., not dancing) with respect to each of the counts in question, Hammonds solicitation and/or receipt of some portion of the resulting proceeds — however labeled — is sufficient to support a pimping conviction.
What Hammond labels the "agency fee" was, at most, a loosely agreed cut of the proceeds he would receive after the completion of each "date." Hammond admits in his brief that there was, in fact, no set agency fee as "it appeared the agency fee varied and the deal with each girl varied."
II
The Trial Court Did Not Err by Failing to Instruct Sua Sponte on the Lesser Included Offenses of Attempted Pimping and Pandering, or the Defenses of Mistake of Fact, Entrapment and Factual Impossibility
Hammond argues that even if the evidence was sufficient to support the jurys verdicts, reversal is still required because the trial court erred by failing to instruct the jury, sua sponte, on the lesser included offenses of attempted pandering and pimping, as well as on potential defenses to the charges against him of mistake of fact, entrapment, and factual impossibility. We address each of these claims of error below.
A. The Trial Court Did Not Err by Failing to Instruct on Attempt
Hammond first contends that the trial court erred by failing to instruct sua sponte on the lesser included offenses of attempted pandering and pimping. We disagree.
A trial court errs "if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) No such instruction is required, however, "on theories that have no such evidentiary support." (Ibid.) Consequently, an instruction on a lesser included offense is not required "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime" (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5 (Barton)), and no instruction is required when "there is no proof, other than an unexplainable rejection of the prosecutions evidence, that the offense was less than that charged." (See People v. Kraft (2000) 23 Cal.4th 978, 1063 (Kraft).)
Applying these legal principles to the facts of this case, it is clear that no attempt instruction was required. On the evidence presented, there was no legally cognizable theory — apart from "an unexplainable rejection of the prosecutions evidence" — upon which the jury could conclude that Hammond was guilty only of attempted pandering and pimping. (Kraft, supra, 23 Cal.4th at p. 1063.) As we have explained, the prosecutions evidence, if believed, established completed acts of pimping and pandering despite the absence of completed acts of prostitution. If the prosecution witnesses were not believed, the resulting verdict would have been an acquittal. Thus, on the evidence presented, Hammond was "either guilty of the crime charged or not guilty of any crime," and no instruction on the lesser included attempt offenses was required. (Barton, supra, 12 Cal.4th at p. 196, fn. 5.)
Apart from his erroneous contention that the involvement of undercover officers and cooperating prostitutes rendered his crime (at most) attempted pandering and pimping, Hammond fails to explain the legal theory by which the jury could have concluded he was guilty of attempt, asserting only that "the evidence in this case . . . raise[d] issues for the jury as to attempt." To the extent Hammond relies on some unexpressed theory to support his contention, he has forfeited that claim on appeal. (Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683, 689.)
B. The Trial Court Did Not Err by Failing to Instruct on Mistake of Fact
Hammond contends the trial court was required to instruct the jury either that "independent acts of [Hammonds] dancers of which he was unaware were not pimping or pandering, or simply . . . on mistake of fact" in order "to cover the defense that appellant . . . sent girls to dance, not knowing they would prostitute themselves." We disagree.
It is a defense to a criminal prosecution that the defendant committed a criminal act "by reason of a mistake of fact." (CALJIC No. 4.35; § 26; People v. Reed (1996) 53 Cal.App.4th 389, 396 ["people do not act unlawfully if they commit acts based on a reasonable and honest belief that certain facts and circumstances exist which, if true, would render the act lawful"].) A trial court should instruct on mistake of fact, or related legal principles, where such an instruction is necessary to fulfill its overarching duty to instruct the jury on the "general principles of law relevant to the issues raised by the evidence." (People v. Blair (2005) 36 Cal.4th 686, 744 (Blair); People v. Hill (1980) 103 Cal.App.3d 525, 537 [trial court was required to instruct the jury sua sponte that nude modeling was not prostitution because such an instruction was "`necessary for the jurys understanding of the case "].)
Here the trial court had no obligation to give the instructions Hammond now suggests because the principle contained in those instructions was amply conveyed to the jury in the instructions received. The jury was instructed that for a pimping conviction, the evidence must establish that "the defendant knew that the other person was a prostitute" and "solicited or received compensation for soliciting customers for the prostitution service of th[at] person." (Italics added.) With respect to pandering, the jury was instructed that the evidence must establish that Hammond "procure[d] another person for the purpose of prostitution" or "received . . . money . . . for procuring, or attempting to procure, another person for the purpose of prostitution." (Italics added.) Each of these instructions also included a definition of prostitution. The court further provided the jury with instructions emphasizing the requisite knowledge and intent requirements for each offense.
By exhaustively instructing the jury that Hammond could only be found guilty if he procured a person for the purpose of prostitution or solicited money for prostitution services, the trial court fulfilled its duty to instruct on the "general principles of [applicable] law" with respect to the defense that Hammond only intended for Randi and Naomi to engage in dancing, and not prostitution. (Blair, supra, 36 Cal.4th at p. 744.) The trial court was not required to give an additional instruction that procuring a person and soliciting compensation for dancing, and "sen[ding] girls to dance" (i.e., not "for the purpose of prostitution") was not unlawful; "the point of [such an] instruction was readily apparent from the instructions [already] given." (People v. Bolden (2002) 29 Cal.4th 515, 559; People v. Lewis (2001) 25 Cal.4th 610, 649 [reviewing court must consider alleged deficiencies in the courts instructions in light of the whole of the instructions given to the jury].)
C. The Trial Court Did Not Err by Failing to Instruct on Entrapment
Hammond contends that the trial court erred by failing to instruct sua sponte on entrapment. His argument is without merit.
An entrapment defense is available when a rational jury can conclude that the conduct of law enforcement agents involved in a case was "likely to induce a normally law-abiding person to commit the crime." (People v. Barraza (1979) 23 Cal.3d 675, 690 (Barraza).) For purposes of this test, it is presumed that "a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully." (Ibid.) Thus, "[o]fficial conduct that does no more than offer th[e] opportunity" to commit an offense does not constitute entrapment. (Ibid.) However, when "the police or their agents . . . pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime," entrapment occurs. (Ibid.) In addition, entrapment may be established if the actions of law enforcement make the offense "unusually attractive to a normally law-abiding person" by, for example, creating a motive for the offense "other than ordinary criminal intent," such as "friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose," or by "a guarantee that the act is not illegal or the offense will go undetected, an offer of exorbitant consideration, or any similar enticement." (Ibid.) The trial court has a duty to instruct on entrapment "when there is substantial evidence supportive of [that] defense that is not inconsistent with the defendants theory of the case." (Id. at p. 691.)
In the instant case, an entrapment instruction was not warranted for two reasons. First, there was no substantial evidence to support it, and second an entrapment instruction was inconsistent with the defense theory of the case.
The evidence presented at trial provided no support for an entrapment defense. It was undisputed that Hammond established and operated a string of adult entertainment businesses and solicited customers for those services through an Internet Web site and other marketing efforts. The undercover officers merely contacted Hammond through his marketing, and requested prostitution. Such requests are typical of law enforcement "`ruses, stings, and decoys " that have long been distinguished from entrapment. (Provigo Corp. v. Alcoholic Beverage Control Appeals Bd. (1994) 7 Cal.4th 561, 569 ["the rule is clear that `ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime "]; Barraza, supra, 23 Cal.3d at p. 690.)
The only evidence Hammond cites in support of his contention that entrapment was presented by the facts of his case is that the police gave Naomi and Randi "bales of money" in exchange for their staged prostitution encounters which constituted "`exorbitant consideration " that Hammond could not resist.
The funds the police officers provided to Naomi and Randi — $300, $660 and $800 (most of which Hammond returned to them) on separate occasions — were not sufficient, at least on the evidence presented in the instant case, to support a defense of entrapment. There was no evidence presented that such payments constituted a significant departure from the norm for prostitution, or would have, for any other reason, motivated someone to commit the charged offenses for a reason "other than ordinary criminal intent." (Barraza, supra, 23 Cal.3d at p. 690.) In addition, in each instance, Hammond received the purported exorbitant consideration after he had procured Naomi and Randi, and thus no rational trier of fact could conclude that he had only done so because of the compensation received.
In fact, the evidence included testimony that Hammond told Randi that were she to engage in sex with a client, she should charge at least $800.
Second, an entrapment instruction was not warranted because it was inconsistent with the defendants theory of the case. The defense theory of the case at trial was that Hammond was operating a lawful escort service and, as far as he knew, his employees performed lawful services such as dancing and stripping. The entrapment theory now offered by Hammond on appeal conflicts with this theory by suggesting that Hammond did in fact participate in the provision of prostitution, but only because the police induced him to do so.
Hammonds reliance on People v. Osborne (1978) 77 Cal.App.3d 472, 477-478, is unavailing. In Osborne, the defense theory (that the defendant accepted stolen property with the intent to arrest the thief) was not inconsistent with an entrapment defense (that the idea to do so originated in the first place with law enforcement). (Ibid.) By contrast, in the instant case, as explained above, an entrapment defense was not consistent with the defense theory, and thus an instruction was not warranted.
Hammond also contends that the court should have instructed sua sponte on "factual impossibility." We disagree. Hammond fails to identify what the courts factual impossibility instruction should have been, and we are unaware of any standard instruction regarding factual impossibility, or any case that discusses such an instruction. Rather, it appears that under California law, neither the court nor the jury is required to consider impossibility as a discrete defense. As explained in Rizo, supra, 22 Cal.4th at pages 684-685, when a defendant claims impossibility, the question presented to the jury is unchanged — the pertinent question remains, as in all criminal cases, whether "the evidence at trial is sufficient to establish all elements of the crime." (Id. at p. 685.) If so, "the defendant may be found guilty of the substantive crime." (Ibid.) Thus, as the jury here was properly instructed that a conviction required proof of all the elements of the crime, the trial court did not err by failing sua sponte to instruct the jury regarding factual impossibility.
III
Hammond Fails to Establish that He Received Ineffective Assistance of Counsel
Hammond contends that his convictions must be reversed because he did not receive effective assistance of counsel as guaranteed by the California and federal constitutions. Reiterating a number of contentions he raised in a posttrial motion for a new trial, Hammond asserts his trial counsel was ineffective because he: (i) failed to object to Detective Reyess testimony that a photograph located in a box of documents related to Hammonds various adult entertainment businesses depicted Hammond "wearing blue" with "several gang members" who appeared to be a "clique of the Crips gang"; (ii) failed to object to testimony regarding "uncharged offenses and immoral conduct," such as Hammonds prior arrest for driving under the influence; and (iii) did not seek a mistrial after jurors saw Hammond in shackles. We reject these contentions because Hammond has not made the requisite showing that his counsel had no conceivable tactical purpose for the identified omissions.
A. Standard of Review
To obtain relief on the ground of ineffective assistance of counsel, a defendant has the burden of establishing both counsels deficiency and resulting prejudice, i.e.: (i) that "`counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms "; and (ii) "`there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. " (In re Fields (1990) 51 Cal.3d 1063, 1069, 1070, quoting Strickland v. Washington (1984) 466 U.S. 668, 688, 693-694.) In evaluating a claim of ineffective assistance of counsel, we must indulge a "strong presumption that counsels conduct falls within the wide range of reasonable professional assistance" (Strickland, at p. 689); accordingly, "a mere failure to object to evidence or argument seldom establishes counsels incompetence." (People v. Ghent (1987) 43 Cal.3d 739, 772.)
When a claim of ineffective assistance of counsel is brought on direct appeal, reversal is permitted "`"only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission."" (People v. Lucas (1995) 12 Cal.4th 415, 437, 445 (Lucas).) If the "record does not demonstrate there could be no rational tactical reason for [an] omission," the claim fails. (Id. at p. 442; People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsels challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation"].)
Where, as here, issues of ineffective assistance of counsel were initially raised in a motion for a new trial, we grant deference to the trial courts factual findings, if any, but review de novo the ultimate question of whether the facts established in the trial court demonstrate a violation of the constitutional right to effective assistance of counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
B. The New Trial Motion
Allegations of ineffective assistance of counsel were first raised in a posttrial motion in which Hammonds trial counsel asserted, among other grounds, his own ineffective assistance of counsel. The defense did not present evidence in support of its motion, but in the accompanying memorandum of points of authorities, defense counsel characterized his failure to object to the gang evidence as "unconscionable conduct, unethical conduct, unprofessional conduct, unforgivable conduct, and unjustifiable conduct by any standard." Defense counsel also asserted in the memorandum that Hammond was "entitled to a new trial because defense counsel failed to timely and properly object and demand a mistrial" after Hammond was seen in shackles.
Twice during trial, defense counsel brought to the trial courts attention that jurors had seen Hammond in shackles — which were otherwise hidden from the jury. Defense counsel did not request any relief based on these events, and the trial court sua sponte (and without objection) admonished the jurors that any observations they might have made outside the trial proceedings "are not evidence, and should not and must not be considered by you in any of your rendering of opinions in this case or determination of the facts."
After hearing argument on the new trial motion, the trial court concluded that defense counsels lack of objection to the gang affiliation testimony constituted "a tactical decision by the defense," and concluded as well that there was no prejudice from that testimony. With respect to the shackling, the court stated there was no prejudice from the failure to request a mistrial. The court stated it would not have granted a mistrial based on "the slight viewing by one or two of the jurors possibly through a door of a shackle," as such viewing would not "prejudice the jury to such an extent that it would require a new trial."
The trial court emphasized that rather than object to the testimony regarding the photograph, Hammonds counsel took up the issue on cross-examination, attempting to use the testimony to demonstrate Reyess bias. During that examination, defense counsel emphasized that Reyes made the gang affiliation comment "without hesitation" and asserted that it was Reyess intent to "contaminate" the jurys evaluation of the case. As a result of this combative questioning, Reyes ultimately admitted that he in fact "ha[d] no evidence of a gang affiliation or a gang tie to this particular case."
C. Hammond Fails to Carry His Burden of Demonstrating that Trial Counsel Had No Conceivable Tactical Purpose for the Failures to Object or Request a Mistrial
Hammond has failed to carry his burden of establishing ineffective assistance of counsel on any of the grounds asserted. For each of the failings asserted by Hammond there are potential reasonable tactical grounds for counsels actions not ruled out by the appellate record.
With respect to the gang evidence, the record demonstrates, as the trial court noted, that Hammonds counsel attempted to utilize that evidence tactically to establish that Detective Reyes was a biased witness. Similarly, counsel may have had less apparent, but equally valid, tactical reasons to refrain from objecting, over the course of the lengthy trial, to the other evidence highlighted on appeal — that Hammond had been arrested for drunk driving, had prior "amicable contacts" with police, cheated on his wife, gambled, was seen in the vicinity of an act of prostitution, and had threatened a police officer. Counsel may have refrained from objecting to this evidence because: (i) it arguably supported the defense theory that Hammond was unfairly targeted by the prosecution and police; (ii) it was not objectionable; and/or (iii) it was insignificant to the issues at trial. Alternatively, trial counsel could have determined that the evidence was damaging, but that an objection would highlight it for the jury. (In re Seaton (2004) 34 Cal.4th 193, 200, fn. 3 ["Attorneys often choose not to object for reasons that have no bearing on their competence as counsel"].) We need not speculate further, however, as Hammonds claim must fail whether or not these or other considerations motivated his counsel, because the "record does not demonstrate there could be no rational tactical reason" for the challenged actions. (Lucas, supra, 12 Cal.4th at p. 442). Thus, Hammonds contentions are more properly raised in a petition for habeas corpus and must be rejected on direct appeal. (People v. Mayfield (1993) 5 Cal.4th 142, 188 ["tactical choices presented . . . on a silent record" are "better evaluated by way of a petition for writ of habeas corpus" and will be rejected on direct appeal].)
The only suggestion that trial counsels failures were the result of incompetence is defense counsels unexplained, conclusory assertion in his new trial motion with respect to the purported gang photograph of "unprofessional conduct[, etc.,]" noted above. Even if we were to construe this assertion as speaking (coherently) to the issue of trial tactics, such an assertion contained in a memorandum of points and authorities does not constitute evidence. (Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1090-1091 ["except for stipulations or admissions contained therein, the unsworn pleadings of counsel do not constitute evidence"].)
Similarly, Hammonds contention that his trial counsel was constitutionally deficient because he failed to request a mistrial after some of the jurors allegedly saw him in shackles during the trial proceedings also fails. There are reasonable tactical considerations that could have motivated defense counsel to forego a request for a mistrial, including that the motion was highly unlikely to have been granted. (People v. Slaughter (2002) 27 Cal.4th 1187, 1213 ["a jurys brief observations of physical restraints generally have been found nonprejudicial"].)
In sum, we must presume competence where the record does not demonstrate otherwise, and as a consequence, Hammond has failed to carry his burden of demonstrating that he received ineffective assistance of counsel during trial.
DISPOSITION
Affirmed.
WE CONCUR:
NARES, Acting P. J.
McINTYRE, J.