Opinion
B222948
10-31-2011
THE PEOPLE, Plaintiff and Respondent, v. RENALDO LAMONT JOHNSON, Defendant and Appellant.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA062957)
APPEAL from a judgment of the Superior Court of Los Angeles County. Martin Herscovitz, Judge. Affirmed with directions.
Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, and Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Renaldo Lamont Johnson appeals from the judgment entered following a jury trial in which he was convicted of pimping a minor over the age of 16. Defendant contends that Penal Code section 266h, subdivision (b) is unconstitutionally vague, the trial court committed instructional error, the trial court erred by granting a pretrial continuance over defendant's objection, and the abstract of judgment requires correction. We direct amendment of the abstract of judgment but otherwise affirm.
BACKGROUND
About 11:40 p.m. on September 1, 2009, Los Angeles Police Department officers working an undercover vice detail in Van Nuys observed A.H., a 16-year-old prostitute, pacing at the corner of Sepulveda Boulevard and Gault Street. Officers saw her get into the passenger seat of a truck, which drove a short distance and parked on a dark side street for about 10 minutes. A.H. then got out of the truck, walked back to Sepulveda while speaking on a mobile phone, and stopped at the corner of Sepulveda and Vose Street. A Nissan Altima drove up and she handed something to the driver, who then drove away. A.H. resumed her pacing.
A.H. testified that the driver of the truck paid her $80 for oral sex, after she left the truck she phoned defendant to come to her, and when defendant drove up in the Altima, she gave him the entire $80 she had just earned. Then she went back to working the street.
The officers who witnessed A.H.'s conduct with respect to the truck and the Altima reported their observations to their colleagues. Officer Thomas Andreas, who was part of the undercover detail, drove up to A.H., and she directed him to a parking lot at the back of a nearby hotel. A.H. approached Andreas, asked if he was a police officer, then directed him to touch her breast. Andreas told her he did not want to do so at that location. When A.H. insisted, he drove away and asked other officers to arrest her for loitering for purposes of prostitution. As Officer Silvia Corral and Sergeant Duane Aikins were arresting A.H., Andreas saw defendant drive slowly past three times, looking toward A.H. and the officers each time. Corral and Aikins stopped defendant's Altima.
Corral searched A.H. and recovered a mobile phone. Aikins searched defendant and recovered $79 and a mobile phone. A search of defendant's car revealed A.H.'s purse, some of her clothing, a third mobile phone, and a full, cold, open can of soft drink. With A.H.'s consent, one of the officers looked at the list of recent calls on her phone. He then dialed one of the most recent numbers from the list, and the phone recovered from defendant's person began ringing.
Corral was the first police officer to speak to A.H. after her arrest. A.H. told Corral that defendant was not her pimp, but she gave him $100 per day from her prostitution earnings, and defendant drove her to Sepulveda Boulevard and "supervised" her to make sure she was safe out there. A.H. testified that she did not tell Corral the truth, but told other officers the truth in a later interview. She denied telling Corral that she gave defendant $100 per day, testifying, "I wouldn't give him a hundred dollars, just a hundred dollars." A.H. admitted she was in custody in a juvenile facility with two prostitution cases pending, and that she was testifying under a grant of immunity.
A.H. testified that she was already a prostitute when she met defendant. Defendant knew she was a prostitute and he became her pimp. A.H. worked as a prostitute four or five days per week. She earned about $500 per day and gave the money to defendant. Asked what defendant did with the money, A.H. testified, "We paid for everything that we needed." A.H. then clarified that by "we" she meant defendant and herself. A.H. and defendant were staying at a hotel, and the Altima was a rental car. A.H. never saw any money coming in other than her prostitution earnings, she never saw defendant go to work, and defendant never told her that he did anything other than act as pimp. Defendant paid for the clothes she bought and sometimes gave her some money— between $50 and $100—"[j]ust to have in [her] pocket."
The jury convicted defendant of pimping a minor over the age of 16 (Pen. Code, § 266h, subd. (b)(1); undesignated statutory references are to the Penal Code). The court found true three prior prison term allegations (§ 667.5, subd. (b) and sentenced defendant to eight years in prison.
DISCUSSION
1. Vagueness of section 266h
Section 266h, subdivision (b) defines the crime of "pimping a minor" as follows: "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, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony . . . ." In addition, the defendant must know that the money from which he lives or derives support or maintenance was the earnings or proceeds of prostitution. (People v. Tipton (1954) 124 Cal.App.2d 213, 218.) If the minor prostitute is 16 or older, section 266h, subdivision (b)(1) provides for a prison term of three, four, or six years.
Defendant contends that section 266h, subdivision (b) is unconstitutionally vague on its face, in that "[t]he phrase 'derive support and maintenance in whole or in part' fails to provide a standard or guide for determining which types of economic interactions with prostitutes are prohibited and which are not." He argues that the phrase is so standardless that it might be applied to anyone who sells goods to or is compensated for providing a service to a prostitute, and even to a prostitute's dependent children. Although defendant's opening brief also asserts that the statute is "overbroad on its face," his reply brief strenuously denies that he includes an overbreadth challenge and complains that the Attorney General "recast[]" the issue as one of overbreadth. Accordingly, we consider only his vagueness claim.
"Statutes are presumed valid and must be upheld unless their unconstitutionality is positively and unmistakably demonstrated." (People v. Basuta (2001) 94 Cal.App.4th 370, 397.) Due process requires that a criminal statute be definite enough to provide a standard of conduct for those whose activities are proscribed and standards for enforcement and ascertainment of guilt. (People v. Heitzman (1994) 9 Cal.4th 189, 199.)
A "facial" challenge for vagueness means a claim that the law is "'invalid in toto—and therefore incapable of any valid application.'" (Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982) 455 U.S. 489, 494, fn. 5 , quoting Steffel v. Thompson (1974) 415 U.S. 452, 474 .) If a statute clearly applies to a defendant's conduct, the defendant may not challenge it on grounds of vagueness, and we will not consider its potential vagueness in hypothetical application to other people. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095; Village of Hoffman Estates, 455 U.S. at p. 495.)
The phrase "lives or derives support or maintenance" in section 266h, subdivision (b) clearly indicates that "support" and "maintenance" are used in reference to living expenses. As such, they have a well-defined meaning. "'Support' is broadly defined as 'a source or means of living; subsistence, sustenance, or living. In a broad sense the term includes all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also, proper care, nursing, and medical attendance in sickness, and suitable burial at death.' [Citation.] [¶] The term 'maintenance' similarly involves expansive concepts of means to cover numerous types of living expenses, including health care: 'The furnishing by one person to another, for his support, of the means of living, or food, clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child, or husband and wife. . . . Term "maintenance" means primarily food, clothing and shelter, but it does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities and household expenses.' [Citation.]" (In re Marriage of Benjamins (1994) 26 Cal.App.4th 423, 429, italics omitted.) "Derive" as a transitive verb is defined as "[t]o receive from a specified source or origin" (Black's Law Dict. (6th ed. 1990) p. 444, col.1); "obtain something from (a specified source)" (New Oxford American Dict. (2010) at <http://www.oxfordreference.com> [as of Oct. 31, 2011]); or "to take, receive, or obtain especially from a specified source" (Merriam-Webster (2011) at <http://www.merriam-webster.com> [as of Oct. 31, 2011]). Thus, a person who "lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution" is one who receives or obtains some or all of the money he or she uses for living expenses from the earnings or proceeds of prostitution.
Section 266h unambiguously applies to defendant's conduct, in that substantial evidence established that he lived on or derived "support or maintenance in whole or in part from the earnings or proceeds of A.H.'s prostitution. He took all of the money she earned as a prostitute, gave her back 10 or 20 percent, and used at least a portion of what he kept to pay for "everything that [he and A.H.] needed," including, apparently, a place to stay, transportation costs, and at least one soft drink. In contrast, nothing showed that defendant merely provided a service to A.H. in exchange for compensation. Although A.H.'s initial statement to Corral—which A.H. contradicted when speaking to other officers and repudiated at trial—was that she gave defendant $100 per night and he drove her to Sepulveda Boulevard and "supervised" her, this did not negate other evidence that defendant paid his living expenses, in whole or in part, from the earnings or proceeds of A.H.'s prostitution. At most, if the initial statement were accepted, it showed that A.H. kept a greater share of her earnings than indicated in her trial testimony. Notably, there was no evidence contradicting A.H.'s testimony that defendant had no job and no source of income for housing, transportation, food, and beverages other than the money she earned as a prostitute. Thus, no evidence supported an inference that he earned a living by providing goods or services to the public at large and A.H. just happened to be one of his customers.
Accordingly, "even if the outermost boundaries of [the statute] may be imprecise, any such uncertainty has little relevance" where, as here, the defendant's conduct falls squarely within the statute. (Broadrick v. Oklahoma (1973) 413 U.S. 601, 608 .) As the Supreme Court of Colorado said in rejecting a challenge comparable to that raised by defendant, "When a butcher, baker or candlestick maker is prosecuted for pimping in selling meat, bread or candles to a prostitute, those issues may be brought before us." (People v. Stage (1978) 195 Colo. 110, 112 [575 P.2d 423, 424].)
Nor are we persuaded by defendant's claims that the prosecutor's arguments to the jury establish the facial invalidity of the statute. If the prosecutor misstated the law in argument, it was incumbent upon defendant to object and request that the jury be admonished, then raise that issue on appeal as an instance of prosecutorial misconduct. Purportedly improper argument does not alter the language of the statue, much less render sufficiently specific language unconstitutionally vague.
2. Inadequacy of instruction on elements of offense
The trial court instructed the jury with CALCRIM No. 1150, which defined the elements of the offense as follows: "The defendant is charged with pimping in violation of Penal Code section 266h. [¶] To prove that the defendant is guilty of pimping, the People must prove that: [¶] 1. The defendant knew that [A.H.] was a prostitute; [¶] 2. The money that [A.H.] earned as a prostitute supported defendant, in whole or in part; [¶] AND [¶] 3. [A.H.] was a minor over the age of 16 years when she engaged in the prostitution." The instruction then defined "prostitute."
Defendant challenges the adequacy of this instruction, specifically its failure to define "support in whole or in part." But defendant's reply brief clarifies that his contention is contingent upon this court finding section 266h unconstitutionally vague. Because we do not find the statute unconstitutionally vague, we need not address defendant's instructional error claim.
3. Failure to instruct on lesser included offense
Defendant asked the trial court to instruct upon "supervising a prostitute" as a lesser related offense. He submitted a proposed instruction based upon section 653.23, subdivisions (a)(1) and (a)(2), that specifically described the offense as a "lesser related crime." The prosecutor did not consent, and the trial court denied the request.
Section 653.23, subdivision (a) provides as follows: "It is unlawful for any person to do either of the following: [¶] (1) Direct, supervise, recruit, or otherwise aid another person in the commission of a violation of subdivision (b) of Section 647 [soliciting, engaging in, or agreeing to engage in prostitution] or subdivision (a) of Section 653.22 [loitering in public with intent to commit prostitution]. [¶] (2) Collect or receive all or part of the proceeds earned from an act or acts of prostitution committed by another person in violation of subdivision (b) of Section 647."
Defendant contends that the offense defined in section 653.23, subdivision (a)(2) is a lesser included offense of section 266h, the trial court was required to instruct upon it sua sponte, and the court's failure to so instruct violated defendant's federal constitutional rights to due process and a jury trial.
An offense is necessarily included in another if either the statutory elements of the greater offense or the facts alleged in the accusatory pleading include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser. (People v. Birks (1998) 19 Cal.4th 108, 117.)
A trial court must instruct sua sponte on a lesser included offense if there is substantial evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser. (People v. Blair (2005) 36 Cal.4th 686, 745.) Substantial evidence in this context is "evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (Ibid.)This duty to instruct exists notwithstanding defendant's wishes, trial theories, or tactics. (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).)But absent consent by the prosecutor, a defendant is not entitled to a jury instruction on an uncharged lesser related offense. (People v. Jennings (2010) 50 Cal.4th 616, 668.)
Given our explanation in this opinion of the meaning of "derive" in section 266h, subdivision (b), a violation of section 653.23, subdivision (a)(2) may be a lesser included offense of the "lives or derives support or maintenance" form of a violation of section 266h, subdivision (b). (And a violation of section 653.23, subdivision (a)(1) may also be a lesser included offense of the "lives or derives support or maintenance" form of a violation of section 266h, subdivision (b) because it is arguable that a defendant who lived on or derived support or maintenance from a prostitute's earnings would also have directed, supervised, or aided the prostitute in the commission of soliciting, engaging in, or agreeing to engage in prostitution or loitering in public with intent to commit prostitution.) But we need not decide this point because there was no substantial evidence that defendant was simply collecting or receiving A.H.'s prostitution earnings, but was not using them to pay at least part of his own living expenses. Defendant argues that A.H.'s testimony could not be trusted because she testified pursuant to a grant of immunity. While the grant of immunity was relevant to her credibility, it did not constitute evidence showing that defendant committed only the lesser offense. Nor did A.H.'s initial statement to Corral to the effect that she gave defendant $100 per day and he drove her to Sepulveda Boulevard and "supervised" her show that defendant did not derive support or maintenance at least in part from A.H.'s prostitution earnings, in light of evidence that defendant used the money he received from A.H. (whether $100 or everything she earned) to pay for "everything that [he and A.H.] needed."
Even if we were to conclude that substantial evidence supported instruction on a violation of section 653.23, subdivision (a)(2), any error would be harmless. Error in failing to instruct on a lesser included offense is an error of state law only and is subject to harmless error analysis under the People v. Watson (1956) 46 Cal.2d 818, 836 standard. (Breverman, supra, 19 Cal.4th at p. 178.) Given the evidence that A.H. gave defendant at least $100 per day of the money she earned through prostitution and he used it to pay for everything they needed, and the absence of any evidence showing that defendant did not use A.H.'s prostitution earnings to pay at least part of his living expenses, it is not reasonably probable that a jury that had been instructed upon a lesser offense of section 653.23, subdivision (a)(2) would have acquitted defendant of violating section 266h and instead have convicted him of the lesser offense.
4. Continuing trial date
Defendant contends that the trial court abused its discretion by continuing his trial beyond the 60-day deadline provided in section 1382 to permit defense counsel to obtain a transcript of A.H.'s recorded police statement.
Section 1382, subdivision (a) requires dismissal of a felony action if the trial is not commenced within 60 days of the defendant's arraignment, unless good cause is shown or the defendant agrees to waive time. (§ 1382, subd. (a)(2).)
On October 2, 2009, defendant was arraigned on the information, the public defender's office was appointed to represent him, and trial was set for November 23, 2009. The last day for trial was December 1, 2009.
On November 5, 2009, the public defender's office notified the court clerk that it was declaring a conflict of interest. On November 10, 2009, the alternate public defender's office was appointed to represent defendant. Defendant refused to waive time under section 1382, subdivision (a)(2), so the assigned deputy alternate public defender, Phillip Nameth, filed a motion for a continuance on November 13, 2009. Nameth's declaration cited the need to complete the investigation initiated by prior counsel and prepare for trial of the matter, and requested a continuance of the trial to December 11, 2009. The trial court granted the requested continuance, over defendant's objection. The last day for trial thus became December 11, 2009. Defendant does not challenge the propriety of this continuance.
On December 2, 2009, Nameth filed a second motion for continuance. His declaration attached to the motion stated that on November 27, 2009, the prosecution provided him with an CD of A.H.'s statement to the police, and a transcript was "absolutely necessary for impeachment purposes" and to establish a defense to the charge. He further stated, "After contacting two other transcription services, I have secirred [sic]the services [of] Kathy Mills, who is court approved, and who will transcribe said statement on CD. However, she is in Idaho at this time and will return to the Los Angeles area next week. I need to get her appointed and she estimates that completion of her transcription to be about thirty days." Nameth requested a continuance of the trial to January 14, 2010.
At the December 8, 2009 hearing on the motion, Nameth informed the court that he had asked the prosecutor if someone from his office could prepare a transcript in a shorter period of time, but the prosecutor only had law clerks available, whereas Nameth felt he needed a transcript prepared by a certified reporter. Over defendant's objection, the trial court granted a 35-day continuance, making the last day for trial January 15, 2010. Defendant challenges this continuance on appeal, although he miscalculates its length as 42 days.
During the course of the December 8, 2009 hearing, Nameth informed the court that defendant had "been offered a time-served, 98-days-in-custody offer on this case, with three years of formal probation, which he has rejected" over Nameth's recommendation. Defendant confirmed that he was not interested in the offer and told the court he had to serve six more months of a nine-month parole revocation.
On January 15, 2010, another attorney from the alternate public defender's office told the court that Nameth's father had died. The attorney requested that the trial be continued to January 21, 2010, and the court found good cause and granted the request. On January 21, 2010, the same attorney told the court that Nameth was still on bereavement leave, but would be available to try the case two court days later, on January 25, 2010. The court found good cause and granted the request. Defendant does not challenge the propriety of either of these continuances.
In deciding whether good cause supports a continuance, the trial court must apply common sense and consider the totality of relevant circumstances. (People v. Sutton (2010) 48 Cal.4th 533, 546 (Sutton.)Relevant factors are the nature and strength of the justification for the delay, the duration of the delay, and the prejudice to either the defendant or the prosecution that is likely to result from the delay. (Ibid.)"'A continuance granted at the request of counsel normally constitutes . . . good cause [citation], at least in the absence of evidence showing incompetency of counsel [citation] or circumstances where counsel's request for a continuance is prompted only by the need to [serve] other clients and the defendant himself objects to the delay. [Citation.]'" (People v. Memro (1995) 11 Cal.4th 786, 852-853.) "If counsel seeks reasonable time to prepare a defendant's case, and the delay is for defendant's benefit, a continuance over the defendant's objection is justified." (People v. Lomax (2010) 49 Cal.4th 530, 556 (Lomax).)
The trial court has broad discretion in determining whether good cause exists, and we review its decision for abuse of discretion. (Sutton, supra, 48 Cal.4th at p. 546) We will not reverse a conviction for denial of a speedy trial unless the defendant shows that the delay prejudiced him. (Lomax, supra, 49 Cal.4th at p. 557.)
The 35-day continuance in issue here was for the purpose of obtaining a transcript defense counsel reasonably believed he needed in order to cross-examine A.H. at trial and effectively provide defendant with a defense. The continuance was thus for defendant's benefit. Defendant chiefly challenges the duration of the delay, arguing that "[i]t is not plausible that there was no other certified court reporter in the State of California available to transcribe the police interview who was not on vacation in Idaho or elsewhere." Nameth's declaration and statements during the hearing showed that he tried to find a way to acquire a transcript from a certified court reporter in a shorter period of time, but his efforts were not successful. Nameth was not required to contact every certified court reporter in California to find one who could provide the transcript sooner. Defendant suggests in his reply brief that Nameth should have simply played the CD during trial and let the courtroom reporter create the transcript. This ignores both the stated purpose of obtaining the transcript, that is, cross-examining A.H., and the risk that playing the CD would have resulted in the jury hearing matters damaging to defendant. Defendant did not suggest to the trial court that the requested continuance would likely cause him any prejudice, and in fact he informed the court that he was required to serve six more months on a parole violation. Thus, defendant would remain in custody even if the trial court denied the continuance motion—or granted a shorter continuance—and defendant were acquitted at trial. Given the totality of these circumstances, the trial court's decision to continue the trial for 35 days was not arbitrary, capricious, or patently absurd. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Nor has defendant shown that the continuance caused him prejudice. He argues that, absent the continuance, A.H. would not have testified against him because she did not enter into the immunity agreement until January 26, 2010, and "by the time of trial, [A.H.] had been arrested on a second prostitution charge, which may be what ultimately influenced her to cooperate with the prosecution." This argument is completely speculative and is partially based on matters outside the record. It appears that A.H. entered into the immunity agreement on January 26, 2010, the day she testified. Nothing in the record shows that she previously refused to testify or refused an offer of immunity. It is thus pure speculation to argue that, had the trial not been continued for 35 days, A.H. would not have testified against defendant. Similarly, nothing in the record shows when A.H.'s second prostitution charge was filed. It may have been pending before the trial court granted the 35-day continuance in issue.
Defendant also argues that he should not be required to show prejudice because he had a conflict of interest with defense counsel and the trial court neither appointed an independent attorney to evaluate the issue nor advised him that he could file a writ petition in propria persona. Although the circumstances presented a conflict between defendant's statutory right to a speedy trial and his constitutional right to competent and adequately prepared counsel (Lomax, supra, 49 Cal.4th at p. 556), defendant has cited no authority supporting his position that it was also a conflict of interest. The record shows that defense counsel was acting solely for the purpose of providing defendant with the most robust defense he could present. The conflict between them was not a matter of divided loyalties, but simply a difference over timing. "Defendant's argument confuses conflicts of interests with trial tactics. . . . Here, both defendant and counsel were attempting to achieve what was best for defendant, but they disagreed on trial strategy. . . . Because this difference of opinion on strategy did not create a situation in which counsel's efforts on defendant's behalf were threatened by 'responsibilities to another client or a third person or by his own interests' [citation], there was no conflict of interest." (People v. Jones (1991) 53 Cal.3d 1115, 1138 [addressing presentation of conflicting defenses].) Defendant's claim regarding the trial court's failure to advise him or appoint new counsel to file a writ petition also lacks supporting authority and is inherently premised on speculation that this court would have granted such a petition.
For all of these reasons, we find defendant's claim meritless.
5. Correction of abstract of judgment
Defendant contends that the abstract of judgment must be corrected because it indicates he was convicted of "solicit minor for prostitution over 1."
The abstract correctly reflects that defendant was convicted of violating section 266h, subdivision (b)(1), but refers to an alternative means of violating it. The statute provides that a person who violates it either by deriving support or by soliciting "is guilty of pimping a minor." (§ 266h, subd. (b).) Defendant has cited no authority justifying further specification of the means by which defendant violated the statute. Nevertheless, the abstract incorrectly describes defendant's offense. Accordingly, we direct the trial court to issue an amended abstract of judgment reflecting that defendant was convicted of "pimping a minor over 16."
DISPOSITION
The judgment is affirmed. Unless it has already done so, the trial court is directed to issue an amended abstract of judgment reflecting that defendant was convicted of "pimping a minor over 16."
NOT TO BE PUBLISHED.
MALLANO, P. J. We concur: ROTHSCHILD, J. JOHNSON, J.