Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CF1755 Luis A. Rodriguez, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Theodor M. Cropley and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Gerald Dennorest Mangham appeals from his conviction for pandering by procuring in violation of Penal Code section 266i, subdivision (a)(1). He raises numerous contentions, one of which has merit-the jury instruction on the offense of pandering by procurement was erroneous because it lessened the prosecution’s burden of proof. Accordingly, we reverse the conviction and remand the matter to the trial court for a new trial.
All further statutory references are to the Penal Code.
FACTS
In the very early morning on May 18, 2007, Santa Ana police officers were “on an undercover sting working prostitution.” They arrested several women for prostitution, including Raela Thompson and Shalandis Roberts, and the women were booked into custody at the Santa Ana jail.
Later in the morning, prior to the women being released from custody, Detective David Lima (also working undercover) set up surveillance outside the jail. The previous night, he had been told about a man in the area who was involved in pimping and prostitution. Lima was aware it was common for pimps to come to the jail to pick up their prostitutes following an arrest. Lima had been told by jail personnel the particular man he was looking for had not shown up, but another man had been loitering in front of the jail and had called the jail several times asking about Roberts.
Between 9 and 9:15 a.m., Lima observed the described male, Mangham, pacing back and forth in front of the jail. Another detective arrived. Lima called the jail and learned the women would be released at 12:45 p.m. The officers continued their surveillance from inside their undercover vehicle parked in front of the police department with a view of the jail door.
At 12:45 p.m., five of the women who had been arrested for prostitution were released. They stood around in front of the jail for about 15 minutes, talking, exchanging telephone numbers, and making telephone calls. At about 1 p.m., Thompson, Roberts, and a blonde woman began walking away from the jail.
Mangham was now driving around the area in a black car. Roberts waved towards the car. Mangham turned the car around and stopped in front of the jail. Roberts walked over to the car and had a brief conversation with Mangham. She then walked back to Thompson and the blond woman and had a brief conversation with them. The blond woman and Roberts walked back to Mangham’s car; Thompson did not follow and she remained standing in front of the jail.
Roberts and the blonde woman got into the car with Mangham, and he drove off slowly. In the course of driving about four blocks, Mangham stopped the car three times and pulled over to the curb. He was talking with the two women and looking back. At one point a hand came out the car window motioning to Thompson to come over. Lima testified, it “is common for pimps after they pick up the prostitutes to slowly... to make sure they are not being followed. So this is what we call counter surveillance where they’re driving slow, pulling over.” He testified this is especially true “if a pimp picks up a girl at the police department.”
After driving about four blocks, Mangham made a U-turn, drove back to the police station, and parked his car in a residential area about 500 feet from the jail. He got out of the car, leaving Roberts and the blonde woman in the car, and walked to the jail exit door where Thompson was sitting. Mangham extended his hand to Thompson, shook her hand, and then talked to her for the next 20 to 25 minutes.
Detective Roger Tolosa was situated where he could listen to Mangham and Thompson’s conversation. At trial, he testified as an expert on the subjects of pimping, pandering, and prostitution. Based on his training and experience, a pimp goes to the jail to pick up his prostitute. Tolosa explained about “circuit girls.” “[B]asically pimps will bring down girls from other areas and other countries. They will bring them to the area, and after a few days if they start to seethe police and it starts getting so-called hot or too many police around... then they will remove them to the next track where it’s safer and they haven’t been seen or arrested.” Thompson was an easy target because she was alone.
Tolosa explained about race dynamics in prostitution. While watching Mangham and Thompson converse, Tolosa noticed Thompson continued to look away and did not look directly at Mangham (who is African-American). Tolosa explained that in prostitution, “there [are] many rules. This is what is termed as reckless eyeballing or being out of pocket.” “Out of pocket is when a female prostitute is on the track or the blade or the area where prostitution takes place and a male black will approach her. She’s not to look at this male in the eye or she will be deemed out of pocket or reckless [eyeballing] at which-at this point that male pimp will either be able to take all of her money, he will be able to have her work for him, he can kidnap her and make her his prostitute.” Prostitutes can look other men in the eye, but not a Black male pimp. “It is well known throughout the Black community that a Black male is not going to be able to pick up a female prostitute.”
Tolosa testified as to the substance of the conversation between Mangham and Thompson. Mangham told Thompson that if she came to work for him, she could make a lot of money. He told her that if she did not have a place to stay, she could stay at one of his homes in San Bernardino because he had many of them. Tolosa explained, “The importance of that is that’s showing that he has status and he has a home; that he has many homes. He can put her up. He can start to take care of her[, ]” because that is “what pimps do.”
Mangham told Thompson he used walkie-talkies and “always follows his girls around when they’re out on the track.” He warned Thompson to “never to get into a Black man’s vehicle[, ]” which Tolosa explained signified that Mangham “wants her to be loyal to him as the pimp, and that’s him teaching this prostitute more rules of the game of prostitution and pimping.” He also told Thompson “he was going to hire some guys to protect the girls[, ]” and could take her to Las Vegas to work.
Finally, Mangham told Thompson “he want[ed] to go out with her and he wanted her to be his girlfriend[, ]” which in Tolosa’s “training and experience [was] just another form or a way of saying in code that [he] want[ed] [her] to be a part of [his] family, [his] stable.” It was not an invitation to enter into a dating relationship but “merely a way of saying it without saying be my prostitute or be my Ho.”
Tolosa testified in his opinion, Thompson was not particularly receptive to Mangham. She would look away and not look him in the eyes; “she just sat there looking around.” Mangham made a gesture asking for a hug from Thompson. Thompson leaned into Mangham, but did not really hug him. But when their conversation ended, Mangham “inputted her phone number into his cell phone.” On cross-examination defense counsel asked Tolosa if Thompson violated the “rules” by giving Mangham her telephone number. He replied, “If she had made up her opinion and was now choosing this new pimp, no it did not.”
Officers arrested Mangham. In a subsequent search of the car, officers found condoms in the center console and a receipt from a hotel located in an area known for prostitution.
In Tolosa’s opinion, Mangham was recruiting Thompson to be a prostitute for him. He based his opinion on “the fact [Mangham] came to pick up a prostitute; that he left the area and he came back and had a conversation, which isconsistent with what takes place on the streets between pimp and prostitutes; the terminology of making her money; of being on the track; of not getting into a Black man’s vehicle; of how to detect the police; how to defend yourself; how to get a gym membership to beautify yourself. And just everything that took place there and her actions. Also of her not wanting to look this individual in the eye; with her telling me that she knew she couldn’t get kidnapped because she was in front of the jail; all of those things make my opinion.”
An information charged Mangham with a single count of pandering by procuring. (§ 266i, subd. (a)(1).) A jury convicted him as charged. After his motion for new trial was denied, the trial court sentenced him to four years in prison.
DISCUSSION
1. Sufficiency of the Evidence
Mangham contends his conviction for pandering must be reversed because there is insufficient evidence to support the conclusion he “procured” Thompson for the purpose of prostitution, and as a matter of law, he cannot be guilty of pandering because Thompson was already a prostitute. We reject both contentions.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).) “Under this standard, the court does not ‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272.) The standard is the same where the prosecution relies mainly on circumstantial evidence. (Rodriguez, supra, 20 Cal.4th at p. 11.) “The credibility of the witnesses is an issue for the trier of fact and the judgment of the trial court will not be reversed unless there is no substantial evidence in the record that will support the conclusion of the trier of fact. [Citation.]” (People v. Hashimoto (1976) 54 Cal.App.3d 862, 866 (Hashimoto).)”
Mangham was convicted of violating section 266i, subdivision (a)(1), which defines the crime of pandering as including when a person “[p]rocures another person for the purpose of prostitution.” “The pandering statute and... section 266h (pimping) are both designed to discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitute’s operation, or increasing the supply of available prostitutes. [Citation.]” (Hashimoto, supra, 54 Cal.App.3d at p. 867.)
Mangham first contends that as a matter of law he cannot be guilty of procuring Thompson for purposes of prostitution because she was already a prostitute. His argument is premised on People v. Wagner (2009) 170 Cal.App.4th 499 (Wagner), a decision by a different panel of this court, which held as a matter of statutory construction that section 266i, subdivision (a)(2), does not apply where the person solicited to engage in prostitution is known to be an active prostitute currently plying his or her trade for someone else. But Wagner is easily distinguishable because it involved a decidedly different subdivision of the pandering statute. Wagner considered pandering as charged under section 266i, subdivision (a)(2), i.e., “By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute.” (Italics added.) Wagner held the statutory “language defining the crime as occurring when a defendant induces or encourages someone else to “become a prostitute, ” seems fairly clear in its exclusion of efforts to importune someone currently engaged in that profession to change management.” (Wagner, supra, 170 Cal.App.4th at p. 509, italics added.) The court concluded “the crime defined by section 266i, subdivisions (a)(2) and (b)(1) [describing penalties if victim is a minor], does not occur when the person being ‘induce[d], persuade[d] or encourage[d]’ by a defendant is currently a prostitute.” (Wagner, supra, 170 Cal.App.4th at p. 511.) Here, Mangham was not charged with pandering under section 266i, subdivision (a)(2), for having encouraged someone to become a prostitute, but under section 266i, subdivision (a)(1), for having “[p]rocure[d] another person for the purpose of prostitution.” There is no similar limitation in that subdivision, and thus Mangham’s contention is without merit.
We note the issue of whether a defendant can be convicted of pandering under section 266i, subdivision (a)(2), if the person encouraged to become a prostitute is already working as a prostitute is under review in our Supreme Court. (People v. Cason, review granted Mar. 18, 2010, S179344; People v. Zambia, review granted Aug. 19, 2009, S173490.)
Mangham also contends there is no substantial evidence he “procured” a person for the purpose of prostitution because there is no evidence Thompson agreed to work for him. Again, we disagree.
“Procurement” encompasses a broad range of conduct, and it is not necessary the victim ever actually perform acts of prostitution. (People v. Deloach (1989) 207 Cal.App.3d 323, 333.) Substantial evidence supports the finding Mangham procured Thompson for the purpose of prostitution. Tolosa testified as to the substance of Mangham and Thompson’s conversation in which he implored her to work for him as a prostitute. He also testified about the complicated rules of conduct between prostitutes and pimps by which Thompson appeared to be abiding, such as not looking directly at Mangham while they conversed lest she be accused of “reckless eyeballing or being out of pocket, ” which could subject her to harm. The 20-minute conversation ended with Mangham getting Thompson’s telephone number, inputting it into his cell phone, and Thompson complying with Mangham’s request for a hug. Although Thompson was far from enthusiastic in her response to Mangham, Tolosa testimony indicated giving Mangham her telephone number would have been a violation of the “rules” of prostitutes unless “[Thompson] had made up her opinion [sic] and was now choosing this new pimp....” The evidence was sufficient to permit a trier of fact to find Thompson at that point had acceded to Mangham’s recruiting efforts.
B. Instructional Error
Mangham contends the trial court’s jury instruction on pandering was erroneous. We agree. Although as explained above there is sufficient evidence to support a pandering by procuring conviction, the instruction misstated the elements and reduced the prosecution’s burden of proof. Accordingly, we reverse and remand for a new trial.
The prosecution requested the jury be instructed in accordance with CALCRIM No. 1151, which defines the crime of pandering. CALCRIM No. 1151 offers several alternatives depending on the charged conduct constituting pandering. Here, because Mangham was charged with pandering by procuring the instruction was given to the jury as follows: “The defendant is charged with pandering in violation of... section [266i]. [¶] To prove that the defendant is guilty of this crime, the People must prove that [1], the defendant persuaded[/]procured... Thompson to be a prostitute and [2], that defendant intended to influence... Thompson to be a prostitute.”
At the prosecutor’s request, the court modified CALCRIM No. 1151 by adding the following language that was not offered in the pattern instruction: “A woman’s consent to be a prostitute is immaterial.” The trial court agreed with the prosecutor that for the crime of pandering by procuring under section 266i, subdivision (a)(1), the target’s agreement to be a prostitute was immaterial. “The jury does not have to consider her acquiescence to anything....”
Additionally, although the prosecution had originally included CALCRIM No. 460 (attempt other than attempted murder) in its package of proposed jury instructions, in discussing instructions with the trial court, the prosecutor agreed with the trial court that an attempted pandering by procurement instruction was not be warranted because the evidence presented demonstrated all elements of pandering by procuring had been established. Accordingly, the prosecution requested no attempt instruction be given.
The reasoning of the prosecutor in arguing for the modified pandering instruction and against an attempted pandering instruction was made clear in his closing argument-Mangham had “procured” Thompson to be a prostitute by virtue of having simply asked her to work for him regardless of whether she had agreed. In closing argument, the prosecutor argued extensively that although the jury had to find Mangham had “persuaded or procured... Thompson to be a prostitute[, ]” Thompson’s acquiescence to his entreaties was immaterial: “That’s important in this case because [Mangham’s] crime is completed when [the] statements come out of his mouth.... [T]here does not have to be a meeting of the minds between the two of them. There does not have to be a mission accomplished on the part of [Mangham]. [¶] In other words... Thompson doesn’t have to agree to participate in prostitution with [Mangham]. [His] crime is already completed when [the] words come out of his mouth. He doesn’t actually have to be successful in recruiting her.” The prosecutor also argued evidence Thompson eventually gave Mangham her telephone number suggested “maybe he was successful in some small way[, ]” but that evidence was unnecessary because the prosecution was not required to show Thompson agreed to be a prostitute for him. In short, Mangham was guilty of pandering by procuring Thompson to be a prostitute if he asked her to join his stable, even if she said, “no.”
Mangham is correct the modified instruction advising “consent is immaterial” was in error. This is particularly so in view of the way the prosecution presented and argued the case. Mangham was charged with being one who “[p]rocures another person for the purpose of prostitution” in violation of section 266i, subdivision (a)(1). (Italics added.) The word “procure” necessarily connotes success, not merely rejected entreaties. But the modification to the instruction allowed the prosecution to argue Mangham was guilty of pandering if he attempted to recruit Thompson to work for him, regardless of whether she agreed.
In People v. Charles (1963) 218 Cal.App.2d 812, 819 (Charles), in the context of a charge of pandering by “procuring” an inmate for a house of prostitution, the court noted, “‘Pandering is established when the evidence shows that the accused has succeeded in inducing his victim to become an inmate of a house of prostitution. [Citations.] Attempted pandering is proved by evidence of the acts of the accused which have failed to accomplish the actor’s purpose by reason of its frustration by extraneous circumstances rather than by virtue of a change of heart on the part of the one who made the attempt.’ [Citation.] [¶] Under the foregoing rule the refusal of the person solicited to accept the proposal to become an inmate of a house of prostitution is an extraneous circumstance which frustrates her procurement for such purpose. [Citation.]” (Italics added.) In such case the crime committed is attempted pandering. (Ibid. See also People v. Bradshaw (1973) 31 Cal.App.3d 421, 426 [word “procure” indicates success].)
Indeed, the holding of Charles, supra, 218 Cal.App.2d 812, is consistent with the common meaning of the verb “procure.” Webster’s Third New International Dictionary (1981) defines “procure” as necessarily meaning success, not just an attempt: “procure:... to get possession of: OBTAIN, ACQUIRE... GAIN, WIN... to get possession of (women) and make available for promiscuous sexual intercourse... to cause to happen or be done: bring about: EFFECT... ACHIEVE... to bring about by scheming and plotting... to prevail upon to do something indicated: INDUCE... to cause....” The modified instruction, which then allowed the prosecutor to argue to the jury Thompson’s agreement to Mangham’s proposition was irrelevant, was in error.
The Attorney General implicitly concedes success in recruiting efforts was not “immaterial” as the prosecutor argued. This is evident from his response to Mangham’s substantial evidence argument above. Mangham contended there was not substantial evidence of procurement because there was no evidence Thompson agreed to work for him. The Attorney General replies there was substantial evidence of her agreement (the hug and giving Mangham her telephone number showed they had “solidified their business relationship as pimp and prostitute”), and if we find evidence of Thompson’s acquiescence lacking, then the offense should be reduced to attempted pandering by procurement. (See People v. Dillon (1983) 34 Cal.3d 441, 452 (Dillon) [“attempt to commit a crime requires proof of a specific intent to commit the crime, and of ‘a direct but ineffectual act done towards its commission’”].)
Nonetheless, the Attorney General makes an effort to justify the modified jury instruction, asserting the language added to the instruction was a technically correct statement of the law-the target’s consent is immaterial because, “A person may become a prostitute either willingly, or by force and duress. Either way, she has been ‘procured.’” He cites People v. Cimar (1932) 127 Cal.App. 9 (Cimar), People v. Montgomery (1941) 47 Cal.App.2d 1 (Montgomery), and People v. Caravella (1970) 5 Cal.App.3d 931 (Caravella), in support of the argument. The cases are inapposite.
In Cimar and Caravella defendants had successfully procured women for the prostitution objective. The discussions in those cases of the women’s “consent” being irrelevant was in the context of whether the pandering crime could be committed if the woman was a willing participant in prostitution, as opposed to having been procured through duress, threats, violence, or fraud. (Cimar, supra, 127 Cal.App. at p. 15 [“statute makes it a crime for one to procure a female to become an inmate in a house of prostitution, with or without her consent, and regardless of whether it is accomplished by means of threats, violence or fraud”]; Caravella, supra, 5 Cal.App.3d at p. 933 [“immaterial to a charge of pandering ‘“whether the female ‘procured’ is an innocent girl or a hardened prostitute of long experience; nor is it material that the procurement was either at her request or upon the defendant’s own initiative”’”].)
Similarly Montgomery, supra, 47 Cal.App.2d 1, considered multiple counts of pandering and attempted pandering. It held it was not material to a charge of pandering that the procurement was either at the woman’s request or on the defendant’s initiative. (Id. at p. 12.) None of these cases suggest the word “procure” has a different meaning than its common meaning-that something has actually been obtained or acquired as opposed to having only been sought or asked for. The prosecutor argued repeatedly consent was irrelevant because the jury did not need to find Mangham was successful in getting Thompson to work for him, only that he asked her to change her business relations.
The Attorney General contends Mangham has waived his objection to the modified instruction because although he objected to the additional “consent to be a prostitute is immaterial” language, he did not object to the prosecutor’s repeated statements to the jury that success in his efforts at recruiting Thompson was immaterial and “[Mangham’s] crime was already complete once he spoke the words.” The issue is not waived because the instruction and its use by the prosecutor affected the prosecution’s burden of proof, allowing his possible conviction based on a mere attempt, thus implicating Mangham’s substantial rights. (People v. Carpenter (1997) 15 Cal.4th 312, 380-381.)
Mangham raises an additional challenge to the CALCRIM No. 1151 instruction, which we must briefly address for retrial. He complains the word “persuaded” (as in “persuaded/procured”) has no place in the pattern instruction because it improperly adds a non-existent element to the pandering crime, which section 266i, subdivision (a)(1), defines as occurring when a person “[p]rocures another person for the purpose of prostitution.” We disagree.
The use notes to CALCRIM No. 1151, explain the word “persuade” was added to the instruction “because the statutory language, ‘procure, ’ may be difficult for jurors to understand.” We reject Mangham’s suggestion the use of the word “persuade” somehow alters the elements of the crime. Procuring is the illegal conduct; persuasion is simply a means by which the illegal act might be achieved. As noted in Montgomery, supra, 47 Cal.App.2d at p. 12, the word “procure” as used in the pandering statute “necessarily implies the use of persuasion, solicitation, encouragement and assistance in achieving the unlawful purpose.” (Disapproved on other grounds in Dillon, supra, 34 Cal.3d at p. 454, fn. 2, and Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11.)
Having concluded the modification of CALCRIM No. 1151 was error and requires reversal, we must consider the proper remedy. One choice is outright reversal of the judgment of conviction, entitling Mangham to a retrial on the pandering by procurement charge. A second remedy, the one advocated by the Attorney General, is to reduce the conviction to the lesser offense of attempted pandering, subject to retrial at the option of the People. (Cf., e.g., People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Cameron (1994) 30 Cal.App.4th 591, 602, 605; People v. Heffington (1973) 32 Cal.App.3d 1, 14-17.) In view of the prosecution’s argument against an attempt instruction, we select the former remedy.
In view of our conclusions, we need not address Mangham’s other issues which include whether the trial court erred by not instructing on attempted pandering and whether his trial counsel’s failure to raise various evidentiary objections deprived him of effective assistance of counsel. We do note Mangham’s contention the trial court erred by not obtaining from him an express waiver of his right to testify is contrary to well established California Supreme Court authority (see People v. Alcala (1992) Cal.4th 742, 805-806), by which we are bound (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455).
DISPOSITION
The judgment is reversed and the matter remanded to the trial court for further proceedings.
WE CONCUR: SILLS, P. J.RYLAARSDAM, J.