Opinion
C081135
07-07-2017
THE PEOPLE, Plaintiff and Respondent, v. GERALD JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F05165)
Convicted by jury of pandering, defendant Gerald Johnson contends the trial court should have instructed sua sponte on the lesser included offense of attempted pandering. We conclude he was not entitled to such instruction because there was no substantial evidence from which a reasonable jury could have concluded he committed only the lesser offense. Therefore, we affirm the judgment. However, we remand for a correction of the record to show the disposition of certain other counts.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural history
Defendant was charged by an amended consolidated information along with codefendants Delmar D. Reed, whose conviction we affirmed in a prior opinion (People v. Reed (Oct. 18, 2016, C081789) [nonpub. opn.]), and Anton Alvin Perry. Defendant and Reed were jointly charged with human trafficking (count one; Pen. Code, § 236.1, subd. (b)), pimping (count two; § 266h, subd. (a)), and pandering (count three; § 266i, subd. (a)(1)). Defendant alone was charged with assault by means of force likely to commit great bodily injury (count four; § 245, subd. (a)(4)) and battery resulting in the infliction of serious bodily injury (count five; § 243, subd. (d)). Perry alone was charged with selling a person for illicit use (count six; § 266f) and maliciously dissuading the testimony of a victim by threat of force (count seven; § 136.1, subd. (c)(1)). C.D. was the alleged victim in all counts.
Undesignated statutory references are to the Penal Code.
The jury acquitted Perry on count six, but convicted him of witness intimidation on count seven (rejecting the allegations of malice and use or threat of force). He is not a party to this appeal.
C.D. testified at length. The only other witnesses were law enforcement officers and C.D.'s mother. Defendants did not put on any evidence.
The trial court offered to instruct on attempt as to pandering and pimping if defense counsel requested such instructions. Counsel did not do so, however.
In addition to pandering, the jury convicted defendant of simple assault, a lesser offense of assault with serious bodily injury (count five). The jury acquitted defendant of human trafficking (count one), and could not reach verdicts on pimping (count two) and assault by means likely to produce great bodily injury (count four), as to which the trial court declared a mistrial.
It appears that the trial court intended to dismiss counts two and four, but the record does not show that the court did so. We shall remand the matter with directions that the court correct the sentencing minutes to reflect the dismissal of these counts.
Trial evidence
In July 2014 18-year-old C.D. lived in Elk Grove with her mother and her siblings. Around July 18, 2014, her mother kicked her out of the house. C.D. had no money.
C.D. had known codefendant Perry since her freshman year in high school. By July 2014 she considered him her boyfriend. He repeatedly suggested that she work for him as a prostitute. She had also exchanged texts about prostitution with an earlier boyfriend, Markey Gamble. On July 10, 2014, she communicated with both of them on this subject.
C.D. admitted that she texted Perry: "I want to ho for you, I really need the money so bad." She claimed that she could not remember why she said that and denied that she actually wanted to work for him as a prostitute.
C.D. also admitted discussing the practical details of setting up as a prostitute with Gamble and calling him her pimp, but claimed she was lying to him.
After C.D.'s mother kicked her out, C.D. called Perry and asked him to pick her up. (An aunt she called first had too many people staying with her.) She left the house and went walking down the street, looking out for Perry. He finally arrived in a car with several other people in it, including his older brother, codefendant Reed.
C.D. was taken to a Motel 6 near Howe Avenue, where they met defendant and his girlfriend "Jennifer." The group hung out, drank, and smoked marijuana. Perry left with Reed.. After getting drunk, C.D. had sex with defendant and Jennifer.
The next day, Perry and Reed returned to the motel, along with Reed's girlfriend "Ladybug." That evening, Perry got angry with C.D., grabbed her by the hair, and put his arm around her neck. Later, C.D. heard the three defendants talking outside the room about her working as a prostitute for one of them.
As the three defendants lined up side-by-side, defendant told C.D. to "choose up" (a phrase she did not understand). Defendant said he did not spend a lot of money on her only to have her not agree to go with him. Some time afterward, Perry told C.D. that he had sold her to defendant.
At some point, defendant paid to have C.D.'s and Jennifer's nails and hair done. C.D. testified inconsistently about whether that had happened before this conversation.
Later, at Reed's house, C.D. and defendant spoke privately. He seemed to be saying that he wanted her to take over his girlfriend's "position," whatever that meant. He also said C.D. was "a bad bitch," meaning "really attractive," but she did not see it as a compliment.
Overhearing this conversation, Reed intervened angrily, telling C.D. to repeat after him: "I don't appreciate where I'm at and I deserve to be slapped." He told her that if she did not do so, everyone there would jump her. He slapped her, causing her to lose her balance and end up leaning against a door. He told defendant that defendant "needed to control his bitches."
Reed took Ladybug into the bathroom and tortured her with a Taser as she screamed. He then brought her back out naked and continued to use the Taser as she lay on the ground. Defendant recorded the incident on his cell phone and waved the Taser at C.D. as though he were going to use it on her. She told him to stop and went into the backyard with Jennifer.
Later (apparently after Perry told C.D. he had sold her to defendant), defendant told her she could not go anywhere by herself, could not talk to Perry, and could talk only to defendant. At some time, defendant took her cell phone away and gave her another one, on which, at his direction, she installed a Facebook app for texting; she used it only to text Perry that she missed him. After defendant found that out, he said that if she wanted to leave, she was "not going to leave the same way that [she] came."
Jennifer and defendant spoke to C.D. at different times about how to conduct herself on the job. Jennifer told her that when she answered the phone, she should first ask whether the caller was affiliated with law enforcement. Later, when a caller texted asking for a "quickie," defendant told her what to charge for it.
Defendant, Jennifer, C.D., and others went to a motel off Zinfandel Drive, where defendant paid for C.D.'s lunch. While at the motel, Jennifer took photographs of C.D. to use for online advertising. At the same time, defendant was creating a website on Backpage.com, on which C.D.'s photographs were later shown in advertisements that called her "Navaeh," a name defendant told her to use.
From there, they all went to a motel in Santa Cruz. Defendant, Jennifer, and C.D. stayed in one room, while Reed, Ladybug, and two other "new girls" ("Moe" and "Slidey") stayed in another room. Angry because C.D. was spending time with Moe and Slidey and not answering his cell phone calls, defendant threatened to cut her hair off, then slapped her, knocking her against a refrigerator door and causing her to lose consciousness; he also poured cold water on her, then made her sleep on the floor next to an air conditioner blowing cold air. The next day, defendant told C.D. to answer the door; a man came into her room, had sex with her, and paid her $60, which she gave defendant afterward.
After two days the group left Santa Cruz, returned to Sacramento, and went to the Red Roof Inn off Zinfandel Drive. Once again, defendant, Jennifer, and C.D. shared a room, while Reed and his entourage shared a separate room.
Defendant threatened to kill C.D. if she called the police on him. C.D. decided to leave.
Grabbing the nearest phone, C.D. walked out and called her mother, who told her to go to the nearest mall, lock herself in a bathroom, and call the police. C.D.'s mother then called them herself.
Calling from the bathroom of a store at the mall, C.D. told the 911 operator she had been walking down the street with a friend, who left her "with his people" and did not tell her anything; they then took away her phone.
C.D. attempted to invoke the Fifth Amendment under cross-examination about the 911 call. The trial court admonished her outside the jury's presence that she was not entitled to claim Fifth Amendment privilege at this point, and the court later so instructed the jury. The court also instructed the jury that it could consider C.D.'s attempt to invoke the Fifth Amendment in assessing her credibility.
A Rancho Cordova police sergeant located C.D., who looked scared. She told officers that Perry had sold her to defendant and Reed, defendant had slapped her and threatened to kill her, that she had been advertised on Backpage.com, and that she had been in the company of three of Reed's prostitutes. When a call came in on the cell phone defendant had given C.D., displaying the number of defendant's phone, C.D. said it was him and they knew she was missing.
Other officers detained defendant and Reed. The officers found C.D.'s personal cell phone and defendant's phone on his person.
Interviewed by a police detective later that day, C.D. said Perry gave her to defendant and defendant told her after that that she could not talk to Perry. C.D. also said defendant's girlfriend told her that since C.D. had "choosed up" defendant, she was now his "ho." C.D. said defendant told her he wanted her to be his "main bitch." She initially denied performing any acts of prostitution, but later admitted she had done so once and had given the money to defendant, who complimented her.
In a subsequent interview, C.D. told the detective that Perry had called her, blaming her for calling the police, telling her he wanted her to change her story to get Reed out of jail, and saying it was "tic for tac," which C.D. took as a threat.
Exhibits introduced at trial included an online prostitution advertisement for "Navaeh," an e-mail address for "navaeh," photographs of C.D. (apparently those taken by Jennifer for use in online advertisements) and other members of the defendants' entourages, e-mails and iPhone notes apparently relating to prostitution, a video of the torture episode involving Ladybug on defendant's phone, and records showing that defendant and Jennifer rented two adjacent rooms at the Comfort Inn in Santa Cruz, all created during the relevant time frame.
In closing argument, defendant's and Reed's counsel argued the People had not proved their case because C.D. was not credible. As to pandering, defendant's counsel asserted that it was Jennifer, not defendant, who performed all the acts alleged to constitute the offense.
DISCUSSION
Defendant contends the trial court erred prejudicially by not instructing sua sponte as to count three on the lesser included offense of attempted pandering. We find the trial court did not err by omitting this instruction.
Section 266i, subdivision (a)(1), under which defendant was charged, provides:
"(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years:
"(1) Procures another person for the purpose of prostitution."
Section 266i has numerous subdivisions, specifying many different ways of committing the offense of pandering. In People v. Zambia (2011) 51 Cal.4th 965 (Zambia), our high court construed a different subdivision (§ 266i, subd. (a)(2), penalizing inter alia anyone who "encourages another person to be a prostitute") in a manner which casts doubt on whether an attempt crime can be committed under that subdivision. (Zambia, at p. 981, fn. 8.) Zambia did not address the subdivision of section 266i at issue in our case, however.
The Attorney General appears to suggest that the reasoning of Zambia's footnote No. 8 sweeps beyond subdivision (a)(2) to cover all forms of pandering. But the Zambia court did not purport to go so far. In particular, it did not disapprove the appellate decisions on which defendant relies, holding that attempted pandering exists under other subdivisions of section 266i.
"[T]he term 'procure' means assisting, inducing, persuading or encouraging a . . . person to become [a prostitute]. [Citation.]" (People v. Schultz (1965) 238 Cal.App.2d 804, 812.)
At the time People v. Schultz, supra, 238 Cal.App.2nd 804 was decided, section 266i required the victim to become or remain an inmate of a "house of prostitution." (Stats. 1953, ch. 32, §§ 4, 21, pp. 635, 643.) The broader expression "to become a prostitute" was added by amendment in 1969. (Stats. 1969, ch. 542, § 2, p. 1169; cf. Zambia, supra, 51 Cal.4th at p. 979, fn. 6.)
A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense or the facts pleaded include all the elements of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117-118.) The trial court must instruct on a lesser included offense, with or without request, if substantial evidence exists which would allow a reasonable jury to find that the defendant committed only the lesser offense. (People v. Duff (2014) 58 Cal.4th 527, 561; People v. Halvorsen (2007) 42 Cal.4th 379, 414.) If, however, " ' "there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions [on lesser included offenses] shall not be given." ' " (People v. Friend (2009) 47 Cal.4th 1, 51-52.) In making this determination, the court considers only the bare legal sufficiency of the evidence, not its weight. (People v. Moye (2009) 47 Cal.4th 537, 556; People v. Breverman (1998) 19 Cal.4th 142, 177)
Attempt consists of "a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) Attempted pandering may be a lesser included offense of pandering where the evidence establishes that the defendant acted with the specific intent to procure a person for purposes of prostitution, but the person did not become a prostitute. (People v. Charles (1963) 218 Cal.App.2d 812, 819 (Charles).) Thus, to show that he was entitled to instruction on attempt, defendant needs to show that there was substantial evidence from which a reasonable jury could have found that any acts he did with the specific intent to procure C.D. for the purpose of prostitution were ineffectual. He cannot do so.
In addition to Charles, supra, 218 Cal.App.2d 812, defendant relies on People v. Benenato (1946) 77 Cal.App.2d 350, at pages 366-367 (Benenato), disapproved on other grounds in In re Wright (1967) 65 Cal.2d 650, at pages 654-655, footnote 3. Even if correctly decided, Benenato has little relevance here.
In Benenato, the appellant, who owned a brothel, and her codefendants were charged with attempted pandering as an alternative to conspiracy to commit pandering. (Benenato, supra, 77 Cal.App.2d at p. 353.) Although the targeted person did not enter the appellant's establishment (having failed a required medical examination), she did work as a prostitute for another defendant afterward. (Id. at pp. 354355.) The appellant was convicted of attempted pandering, but obtained a new trial order from the trial court on that count. The appellate court reversed, finding that the appellant's conviction was proper. (Id. at p. 367.) The court noted the statutory rule that a defendant charged with attempt may properly be convicted thereof even if the evidence shows the crime was completed. (Id. at p. 365, citing § 663.) The court also observed, however, that as to the appellant, the attempt to procure the targeted person was not consummated; thus, in that respect, her crime was one of attempt. (Id. at p. 367.) So far as the court found attempt on the latter ground, the case is factually inapposite. So far as the court found that conviction on attempt was proper under section 663, even if the crime was completed, because attempted pandering was actually charged, the case is legally inapposite.
The only evidence defendant cites as to his own conduct is C.D.'s testimony that defendant told her to "choose up." This testimony cannot support an attempt instruction because it would not enable a reasonable jury to find that defendant's act was ineffectual. On the contrary, the overwhelming weight of the evidence of what followed defendant's command shows that C.D. "chose" defendant (or had the choice made for her), subsequently performed an act of prostitution at his direction, and handed him the proceeds.
Aside from that point, defendant merely alludes vaguely to "other evidence suggesting [defendant] harbored an intent to procure [C.D.] for the purpose of prostitution." In support, he cites only "RT 100-101," where C.D.'s testimony about "choosing up" occurs, and pages 11 through 20 of his opening brief, which contains his entire "statement of facts." It is defendant's obligation to identify the evidence he relies on. A general citation to his statement of facts identifies nothing. We do not consider factual assertions offered without specific record citation. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16.)
Defendant additionally claims that C.D.'s testimony was generally "untrustworthy" because evidence showed that she "lied about the circumstances of the charged crimes," and the jury must have found her impeachment with that evidence effective because it failed to convict him on two counts and hung on two others. But he does not explain how a reasonable jury could have chosen to rely on the one part of C.D.'s testimony he offers as support for an attempt instruction, while rejecting all the rest. (See People v. Friend, supra, 47 Cal.4th at pp. 51-52.)
Defendant observes that the jury did not convict him on count five (assault with serious bodily injury), but fails to mention here that it convicted him of a lesser offense on that count.
Defendant renews his trial argument that his girlfriend Jennifer, not he himself, performed all the acts alleged to constitute pandering. But he does not explain how the evidence that Jennifer did any act that might constitute pandering would prove that he himself merely attempted that crime, or how a reasonable jury could have found that she acted independently as a principal rather than as defendant's agent, accomplice, or aider and abettor.
As noted above, trial counsel placed the blame on Jennifer not to argue that it would be proper to convict defendant of an attempt crime, but to argue that the People could not prove beyond a reasonable doubt that defendant committed any crime. --------
Finally, defendant cites evidence tending to implicate Perry and/or Reed in the crime of pandering. Again, however, defendant fails to explain how this evidence, even if credited by the jury, would have shown that he himself attempted the offense but did not complete it.
Because defendant has not shown he was entitled to instruction on attempted pandering, we do not address his contention that the absence of this instruction prejudiced him.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court with directions to expressly dismiss counts two and four or to prepare a sentencing minute order showing that those counts were dismissed.
RAYE, P. J. We concur: HULL, J. HOCH, J.