Opinion
A151240
12-06-2018
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DAVAUGHN JACK, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SF399804A)
William Davaughn Jack was convicted by a jury of pandering (Pen. Code, § 266i, subd. (a)(1); count one) and pimping (id., § 266h, subd. (a); count two). On appeal, Jack contends (1) the trial court abused its discretion in allowing an expert witness to testify to the ultimate issue of fact; (2) the trial court abused its discretion in permitting an investigating officer to offer expert testimony without being qualified as an expert; and (3) his pimping conviction is unsupported by substantial evidence. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
On May 31, 2015, San Mateo Police Department officers were conducting surveillance from a motel on El Camino Real to identify prostitution operations. Officer Phoenix O'Rourke responded to an advertisement on a Web site known to contain prostitution advertisements, and he invited a potential prostitute to come to the motel room to perform sex acts in exchange for money. The woman who arrived at the arranged time and place was Karen S., the subject of Jack's pimping and pandering charges. Karen admitted working as a prostitute but denied having a pimp. She was arrested and searched. Her purse contained multiple condoms, a cell phone, an identification card, but no money.
Officer Chris Lewis was a member of the outside surveillance team whose role was to identify anyone assisting or associated with a prostitute. Lewis had been given a photograph of the woman O'Rourke was expecting, later identified as Karen. Lewis watched Karen arrive at the motel in a lime green Dodge Charger and exit from the rear passenger side. Lewis followed the car and watched the male driver stop at an automatic teller machine. After learning Karen was detained, Lewis stopped the car for a traffic infraction. Jack was driving. Jack's teenage son, A.D., was in the front passenger seat.
Lewis searched the car and found two bags of women's clothing, high heeled shoes, a pink bag containing 22 condoms, documents bearing a woman's name, and three cell phones. Lewis also found a wallet containing $245, Jack's identification card, and several "Green Dot" payment cards, which are similar to debit cards but can be used by people who do not have bank accounts. Over a continuing defense objection, Lewis testified he was aware through his prior investigative work that Green Dot cards were commonly used by people engaged in pimping and pandering activities.
The trial court overruled Jack's "hearsay" and "expert opinion" objections, instructing the jury it could consider Lewis's testimony not for its truth, but for the limited purpose of explaining Lewis's actions and investigation.
Jack's son, A.D., told police he and his father planned to go clothes shopping after dropping "off a girl at an apartment." During a police interview, A.D. stated he had been with Jack when he dropped off women approximately 50 times in the last two years. At trial, however, A.D. testified it only happened on five occasions in the past year.
When arrested, Jack was wearing jeans with a crown symbol on them. Over objection, Lewis testified the crown was a common symbol used by pimps. A similar crown with the word "Franchi$e" appeared in a photograph, found on Jack's phone, as a tattoo on a woman's leg. Jack called Karen from jail, gave her his passwords, and asked her to delete his social media, online classified advertisement, and e-mail accounts, which he did not want the police to access. Jack also told Karen to tell "Courtney" not to contact him and "not say anything" if contacted by police. Jack also told Karen to cancel several of his cell phone accounts and delete an e-mail account for "XXX Anastacia Steele XXX."
Searches of Jack's cell phone uncovered other photographs and several short sexually suggestive videos of Karen and other women, which were similar to videos seen in the online advertisements. In particular, the police found a photograph of Karen on Jack's phone that matched the photograph posted in the advertisement O'Rourke found online.
Jack's cell phone also contained imagery associated with the pimping lifestyle. For example, there was a photograph of a baseball hat with the letter "P" on it. Lewis testified, over objection, "P" is commonly used by pimps. There was a photograph of a woman with the label "bottom bitch" on it. Lewis testified, over objection, that "bottom bitch" is commonly used to describe a pimp's highest-ranking prostitute. A price list was also found, showing the "donation" amount required in exchange for a given amount of time with a prostitute. Lewis explained references to "donations" meant money earned from prostitution. Lewis also explained the terms "gorilla pimp" and "Romeo pimp" refer to the way a pimp treats his prostitutes—either violently or gently.
Karen's cell phone contained text messages between herself and Jack. The police also downloaded numerous text messages from Jack's phone, which were admitted into evidence and discussed by Lewis and the prosecution expert on pimping and pandering (discussed below). Lewis testified generally about the meaning of several text messages found on Jack's phone and interpreted the content as consistent with pimping and prostitution.
The prosecutor called Officer Scott Valencia as an expert in pimping and pandering. Valencia explained the terms "gorilla pimp" and "Romeo pimp," as well as other terminology commonly used by pimps and prostitutes. According to Valencia, a "Romeo pimp" manipulates his prostitutes by leading them to believe he "is actually caring for their well-being and looking out for them." A "gorilla pimp," on the other hand, uses fear and physical abuse to control prostitutes. He explained Green Dot cards were significant because they are used by those involved in prostitution to disguise cash flow. Valencia testified about Jack's "NOBFE" tattoo, opining it was meant as a notice to his prostitutes that they would have a strictly business relationship.
Valencia defined various terms used in the text messages: "bottom bitch" (the highest ranking prostitute), "out on the blade" (soliciting for prostitution on the street or in public), "GFE" (girlfriend experience), "pop" (ejaculation), "bank" and "kitty" (vagina), "escorting" (prostitution), "roses" and "donations" (price or money), "trading up" (getting a better pimp), and "out-call and in-call" (woman goes to the client or the client goes to the woman).
Valencia reviewed numerous text message strings found on Jack's phone and opined that pimping and prostitution activities were referenced throughout. Some text messages also referenced pornography. Approximately one week before their arrests, Jack texted Karen, asking her to send photos "so [he] can edit them." Half an hour later, Karen forwarded Jack the name of a street intersection and asked, "What you want me to tell him[?]" Jack responded, "Tell him $250/hr." Karen later texted, "Blade for me." Jack responded, "Let me know if u want me to drop u off at the blade." Valencia opined: "My belief is she's asking [Jack] how much she needs to charge for the sexual service that somebody is inquiring about. [¶] [He] replies by giving her a price for the time frame of an hour," which was consistent with the price sheet found on Jack's phone.
Jack told police he had a business, called Franchise Entertainment, involved in the pornography industry. On cross-examination of Valencia, the defense emphasized some text messages between Jack and various women referenced porn, making movies, and Franchise Entertainment.
Another text exchange Valencia testified was consistent with a pimp-prostitute relationship occurred between Jack and Karen on May 27, 2015, in which Jack agreed to post an "add [sic]" for Karen. Valencia opined: "So obviously there's somebody in a working relationship with [Karen] that's able to post these ads for her."
On May 31, 2015 (the day of their arrests), Karen texted Jack, "In." Fifteen minutes later, Karen texted, "Done." Jack responded, "K. [¶] Meet u out front." Valencia opined: "It's going back to the pimp always wanting to know what's going on with her. At this point, she's letting him know that she's in, or . . . in a business relationship with a client for the sexual service that they wish she provided. [¶] The second message [is] stating that the service is over, their time is up, whatever . . . they agreed upon is now finished. [¶] . . . [¶] She's basically saying that she's done. He's giving her a place to meet him at." Valencia acknowledged there was no direct evidence Karen gave the proceeds from this "date" to Jack. However, based on these text messages and the fact she had no cash when arrested, Valencia opined Karen had transferred the money to Jack.
Valencia was also asked to interpret numerous text messages between Jack and approximately 10 other women, which were found on the seized cell phones and admitted pursuant to Evidence Code sections 1101, subdivision (b), and 1220. Valencia testified the texts showed Jack solicited some women to work as prostitutes for him, kept tabs on other women who worked for him as prostitutes, and managed his prostitutes' schedules and business. For example, on April 19, 2015, Jack texted Sierra, "Is he with u?" Sierra responded, "Yeah just got in here lol but 400." Jack responded, "K. [¶] 12:45 is when his time is up . . . [¶] Let him know u have other dates if he try to stay longer." About an hour later, Sierra wrote, "He already popped he only gets one right??" Jack responded, "No . . . he gets like 2 or 3 [¶] . . . [¶] . . . [H]e paid for 2 hours." Valencia opined this exchange suggested a pimp-prostitute relationship between the two. Jack "knows what [the client] paid and the time frame that he paid for. [Jack] has to let Sierra know exactly what she has to provide."
In another example, on May 8, 2015, Jack texted to Dominique: "I really want you with me, I see a lot of potential in you, your just lacking the right man in ur life to show u a different level." Dominique responded the next day, "I really need to make some money tonight. [¶] But everyone is either flaking or complaining about prices. [¶] My donations are 150 roses for half an hour. 300 roses for an hour. 80 roses for a bj anything else just ask . . . im in downtown santa cruz and have a hotel [¶] room. No outcalls." Jack responded: "Then let me come get u and bring u to San Jose and we can make money together." Dominique texted back, "Maybe . . . Im sorry I haven't been responding. How long would I be in san jose for? [¶] Cause i don't want anything like a pimp." Jack replied, "As long as u want . . . we can hit different areas too. [¶] Well I will not beat on u or treat u bad if that's what ur afraid of . . . [¶] I just want a good woman I can trust to get money with." Valencia observed: "[Jack is] not denying that he is in fact a pimp, but he's stating that he [is] not . . . going to treat her with physical abuse."
Finally, Valencia was asked the following hypothetical question: "If you were to suppose that a female subject showed up to a hotel room after being texted in relation to an ad that was placed [online] . . . . [¶] She showed up. She had condoms and [identification] but no money on her person or in her purse. She was dropped off by a male subject. . . . [¶] The male subject's wallet had his [identification], it had U.S. currency in it. The car that he was driving had bags of women's clothing [and] another bag with multiple condoms in it. Multiple phones were located in the car. Those phones were searched, and the messages were consistent with the text messages you've testified about here . . . [¶] There were . . . multiple videos of the female subject . . . that were found in one of the phones, including videos that were consistent with a woman telling a male population, . . . I'm in town for a certain amount of time. . . . I'm a hundred percent real. . . . [¶] There were photographs on his phone that were essentially the same photographs that were on the advertisement. . . . [¶] . . . [¶] Would you have an opinion as to whether . . . that male subject was a pimp?" Valencia testified that "the male subject was, in fact, working in a pimping and pandering capacity."
Defense Case
Jack did not testify. In closing argument, defense counsel maintained that, although Jack was once a pimp, he now only assisted prostitutes.
Verdict and Sentence
Jack was convicted of both counts. He was sentenced to state prison for a total term of six years. Punishment on count two (pimping) was stayed. Jack appeals the convictions.
II. DISCUSSION
Jack contends (1) the trial court abused its discretion in allowing an expert witness to testify to the ultimate issue of fact; (2) the trial court abused its discretion in permitting an investigating officer to offer expert testimony without being qualified as an expert; and (3) his pimping conviction is unsupported by substantial evidence. We take Jack's arguments in a different sequence but conclude he has not demonstrated prejudicial error. A. Sufficiency of Evidence to Support Pimping Conviction
Jack challenges the sufficiency of the evidence to support his pimping conviction. Penal Code section 266h, subdivision (a), defines pimping as follows: "Except as provided in subdivision (b), any 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 person's prostitution . . . is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years." To prove the pimping count, the prosecution had to prove Jack knew Karen was a prostitute and that Jack derived support or maintenance, in whole or in part, from Karen's earnings as a prostitute. (People v. Guyton (2018) 20 Cal.App.5th 499, 506; People v. Scally (2015) 243 Cal.App.4th 285, 292; CALCRIM No. 1150.) Jack challenges only the evidence to support the latter element.
When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) "A reviewing court must accept logical inferences the [fact finder] might have drawn from the circumstantial evidence. [Citation.] ' "A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.' " ' " (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416-1417, disapproved on another point by People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6.) "The standard of review is the same in cases in which the People rely primarily upon circumstantial evidence. [Citations.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " ' " (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)
Although Karen denied having a pimp, ample circumstantial evidence showed Jack derived support from her acts of prostitution. In text messages shortly before their respective arrests, Karen reported having completed a "date," and Jack arranged to pick her up. However, when Karen was arrested, a mere hour and a half later, she had no money. Jack, who was observed dropping Karen off immediately before her arrest, had $245 in cash as well as several Green Dot cards. The incriminating text messages between Jack and Karen, indicia of involvement with prostitution found in Jack's possession, A.D.'s statements to police, and the numerous text messages between Jack and other prostitutes suggested this was not a coincidence. A reasonable jury also could infer from the text messages and presence of matching photographs on Jack's phone that Jack posted Karen's online advertisement and would not have done so without a profit motive. (See People v. Scally, supra, 243 Cal.App.4th at pp. 292-293.) Jack's jail telephone calls provided additional evidence of his consciousness of guilt. A jury could reasonably conclude Jack derived the $245 from Karen's prostitution activities. B. Scope of Expert Testimony
Next, Jack maintains the trial court erred by admitting certain portions of Valencia's expert testimony. Jack does not challenge Valencia's expert testimony regarding terminology and symbols used in the pimp-prostitute culture. Nor does he challenge Valencia's general testimony regarding typical aspects of pimp-prostitute relationships. Rather, Jack maintains Valencia improperly usurped the jury's role by expressing opinions on Jack's guilt. (See People v. Leonard (2014) 228 Cal.App.4th 465, 493 (Leonard).) Specifically, Jack argues the trial court erred in permitting Valencia to respond to the prosecutor's hypothetical question based on the evidence. He also maintains the trial court erred in allowing Valencia to testify, based on the text messages and the fact Karen had no cash when arrested, that Karen transferred the proceeds from her earlier "date" on May 31, 2015, to Jack. He also challenges admission of Valencia's testimony that "[s]omebody is not going to be . . . getting these females' hair done and buying them rooms if they are [not] making a profit off of them." Finally, he asserts Valencia went too far in interpreting messages between Jack and third parties as showing Jack was a pimp. We review a trial court's decision to admit expert testimony for abuse of discretion. (People v. Lindberg (2008) 45 Cal.4th 1, 45.)
Contrary to the People's assertion that Jack forfeited any objection, we conclude he adequately preserved the instant arguments by opposing the prosecutor's motion in limine addressing this issue. (See People v. Perez (2010) 182 Cal.App.4th 231, 245, fn. 5.) In any event, the trial court did not prejudicially abuse its discretion in admitting Valencia's challenged testimony.
"As a general rule expert opinion testimony is limited to an opinion that is '[r]elated to a subject that is sufficiently beyond common experience that the opinion . . . would assist the trier of fact.' (Evid. Code, § 801, subd. (a).) Because admissibility of expert opinion is a question of degree, and a jury need not be wholly ignorant of the subject matter under the statutory rule, exclusion is only necessary where the opinion would add nothing at all to the jury's common fund of information." (People v. Dejourney (2011) 192 Cal.App.4th 1091, 1110.) It is undisputed " 'the relationship between prostitutes and pimps is not the subject of common knowledge.' " (United States v. Brooks (9th Cir. 2010) 610 F.3d 1186, 1196; accord, People v. Scally, supra, 243 Cal.App.4th at pp. 287-288, 293.) Expert opinion testimony is not inadmissible merely "because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.) "On the other hand, '[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.' " (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Thus, "[a] witness may not express an opinion on a defendant's guilt." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77.)
Taking Jack's objection to the prosecutor's hypothetical first, we find no error. Our Supreme Court has made clear an expert witness is not prohibited from answering hypothetical questions regarding hypothetical persons but is merely prohibited from opining on the knowledge or intent of a specific defendant on trial. (People v. Vang (2011) 52 Cal.4th 1038, 1047-1048 & fn. 3.) There is a "critical difference between an expert's expressing an opinion in response to a hypothetical question and the expert's expressing an opinion about the defendants themselves." (Id. at p. 1049; accord, People v. Spence (2012) 212 Cal.App.4th 478, 509-510 [concluding expert testimony in response to question using evidence and the defendant's name "unduly focus[ed] upon [the defendant] as a presumptively guilty individual"].)
Here, Valencia did not directly opine that Jack was acting as Karen's pimp. Rather, he testified that a hypothetical "male subject," involved with a prostitute in the manner described by a hypothetical question, was "working in a pimping and pandering capacity." It is not problematic that the facts of the hypothetical closely tracked the facts of Jack's alleged crime. " 'Such a hypothetical question must be rooted in facts shown by the evidence . . . .' " (People v. Vang, supra, 52 Cal.4th at p. 1045, italics added; accord, id. at pp. 1046, 1050-1051.) "The jury still plays a critical role in two respects. First, it must decide whether to credit the expert's opinion at all. Second, it must determine whether the facts stated in the hypothetical questions are the actual facts, and the significance of any difference between the actual facts and the facts stated in the questions." (Id. at pp. 1049-1050.) The jury was properly instructed on its role in evaluating Valencia's response to the hypothetical question. The trial court did not abuse its discretion in admitting Valencia's opinion in response to the hypothetical question.
In challenging the other portions of Valencia's testimony, Jack relies on Leonard, supra, 228 Cal.App.4th 465. In that case, the trial court admitted a police officer's expert opinion that the defendant started out as a "finesse" pimp but developed into a "gorilla" pimp. (Id. at pp. 492-493.) The detective also opined other evidence presented in the prosecution's case mimicked patterns of behavior in pimping and the defendant's social media referenced pimping and prostitution. (Id. at p. 492.) The reviewing court assumed the trial court erred in admitting this testimony but deemed the error harmless. (Id. at pp. 493-494.) Leonard explained: "The testimony regarding what type of pimp [the defendant] was and what 'patterns of behavior in pimping' were shown in [the prostitute's] testimony could reasonably be interpreted as unhelpful comments on [the defendant's] guilt or innocence on the charge of pimping. [Citation.] The jury was as qualified as [the officer] to determine whether the evidence showed [the defendant] was acting as a 'gorilla pimp' or 'finesse pimp,' for example, after [the officer] had explained those terms. [Citations.] [¶] However, even assuming the trial court abused its discretion in admitting this testimony, any error was harmless." (Id. at p. 493, fns. omitted.)
Jack argues Valencia's testimony is analogous to that involved in Leonard. If it is, any error was similarly harmless. As our prior discussion makes clear, Valencia's expert opinion was far from the only support for the pimping conviction. Overwhelming circumstantial evidence showed Jack knew Karen was a prostitute and derived support from her prostitution activities. Had the purported error not occurred, Jack concedes the jury would have simply read the challenged text messages, which were incriminating even without hearing Valencia's opinion about their content. Furthermore, the trial court properly instructed the jury with CALCRIM No. 332: "A witness was allowed to testify as an expert and to give an opinion. You must consider the opinion, but you are not required to accept it as true or correct. The meaning and importance of any opinion are for you to decide. . . . [¶] . . . [¶] . . . You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence." We must presume the jury followed this instruction. (People v. Pinholster (1992) 1 Cal.4th 865, 919, disapproved on another point by People v. Williams (2010) 49 Cal.4th 405, 459.) "Considering this instruction, and after reviewing the entire record, we conclude [Jack has] not established prejudicial error" under any standard of prejudice. (Leonard, supra, 228 Cal.App.4th at p. 494.) C. Lay Opinion Testimony
Finally, Jack claims Lewis gave impermissible lay opinion testimony. Lewis testified to facts, as an investigating officer, and was not qualified as an expert witness. However, over defense objection, Lewis also defined various terms and opined regarding the significance of various symbols and evidence uncovered during the investigation. Jack asserts "Lewis's testimony should have been limited to explaining his role as part of the external surveillance team and the arrest and search of [Jack] and his property."
"Lay opinion is also admissible, but it plays a very different role than expert opinion and is subject to different rules of admissibility." (People v. Chapple (2006) 138 Cal.App.4th 540, 547.) " 'A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony (Evid. Code, § 800, subd. (b)), "i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed." [Citation.]' [Citation.] Such a situation may arise when a witness's impression of what he or she observes regarding the appearance and demeanor of another rests on 'subtle or complex interactions' between them [citation] or when it is impossible to otherwise adequately convey to the jury the witness's concrete observations. [Citations.] A lay witness generally may not give an opinion about another person's state of mind, but may testify about objective behavior and describe behavior as being consistent with a state of mind. [Citation.] Matters that go beyond common experience and require particular scientific knowledge may not properly be the subject of lay opinion testimony." (People v. DeHoyos (2013) 57 Cal.4th 79, 130-131.) "[W]e do not have a third category of admissible opinions provided by highly experienced, nonexpert, lay witnesses." (Chapple, at p. 548.)
We need not decide whether the trial court abused its discretion by admitting Lewis's opinion testimony. Assuming the trial court did so, any error was harmless. Here, Lewis's challenged testimony was entirely duplicative of Valencia's testimony defining the meaning of such terms, to which Jack offers no challenge. The trial court instructed the jury it was not required to accept Lewis's opinion as true or correct. Because the evidence of Jack's guilt was overwhelming and the effect from the allegedly improper testimony, if any, was negligible, the admission of Lewis's challenged testimony was not prejudicial. (See People v. Bradley (2012) 208 Cal.App.4th 64, 84 [erroneous admission of lay opinion testimony harmless when "it is not reasonably probable the jury would have reached a result more favorable" absent the error].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.