Opinion
C084160
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JODY DEON NATIONAL, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE003944)
A jury convicted defendant of pimping (count 1) and pandering (count 2) and found true an allegation that defendant had a prior serious felony conviction. The trial court sentenced defendant to eight years in prison.
Defendant now contends (1) the prosecutor committed misconduct by telling the jury that the victim, who had pending criminal charges, was entitled to the same presumption of innocence as defendant; (2) his trial counsel was ineffective in failing to object to the prosecutor's comment; (3) the trial court failed to instruct the jury on the procurement element of pandering, and if this Court does not reverse his pandering conviction, the verdict form and abstract of judgment should be amended to reflect the theory of guilt presented to the jury; (4) the Supreme Court should reverse its holding in People v. Zambia (2011) 51 Cal.4th 965 (Zambia); and (5) a clerical error in the abstract of judgment should be corrected.
We agree that a clerical error in the abstract of judgment must be corrected, but we otherwise conclude defendant's contentions are forfeited or lack merit. We will affirm the judgment and direct the trial court to correct the abstract of judgment.
BACKGROUND
We limit the background to facts relevant to the contentions on appeal. D. worked as a prostitute before she met defendant. Defendant knew D. was a prostitute and offered to help her. The two agreed that defendant would post ads on a website and would obtain rides for D., and that D. would give defendant a portion of her earnings from prostitution. Defendant posted ads, set up dates for D., and arranged Uber rides for her.
D. worked with defendant for about a month and they travelled to different cities where she engaged in prostitution. She shared her earnings with defendant, paid for hotel rooms where they stayed, and bought a car for her and defendant, registered in her name. D. gave defendant about $8,000 during the time she was with him.
D. called the authorities after defendant hit her. Officers detained defendant and D. left in the car with some of defendant's belongings. D. subsequently reported to police that defendant sent her threatening text messages. The police arrested defendant.
Information retrieved from defendant's cell phone corroborated certain aspects of D.'s testimony. There were text messages on defendant's cell about posting ads. A text message criticized D. for sleeping and not checking "trap." D. explained "checking trap" meant making money. Detective Kristine Morse said "checking trap" referred to working as a prostitute. Another text message from defendant's cell phone asked D. if she got a date, referring to prostitution services. In a further text message, defendant told D. to "make something shake" and "do what you got to do." Defendant also asked D. if she was "getting calls." Detective Morse explained the text asked about responses to a prostitution ad.
The People also presented evidence of posts on social media accounts associated with defendant which referenced pimping. In addition, there were internet searches conducted on defendant's cell phone which related to prostitution, pimping and a website commonly used for prostitution.
Defendant testified at trial. He admitted knowing that D. was a prostitute but he denied he was her pimp. He also denied posting ads for her. He said he loaned D. a lot of money, and she kept promising to pay him back with interest but she did not give him any money. Defendant admitted he accompanied her to Oakland to get her more business so that she could pay him back, knowing the money would come from prostitution. He loaned D. money for hotel rooms in San Jose so that she could work out of the room. He sent D. texts about making "something shake," doing what she had to do and that she was sleeping too much and "missed out on checking trap." He denied encouraging D. to prostitute herself. He said at some point he told D. he was tired of her "leeching off" him and that they should part ways because he was frustrated that D. had not made money and paid him back. Police detained him in San Leandro and D. left with his belongings in the car they bought in Los Angeles.
Defendant denied conducting the internet searches on his cell phone that the People introduced into evidence. He said he let his cousin and D. use his cell phone and he shared the password for his Facebook and Instagram accounts with other people.
The jury convicted defendant of pimping (count one -- Pen. Code, § 266h, subd. (a)) and pandering (count two -- § 266i, subd. (a)(1)) and found true an allegation that he had a prior serious felony conviction. The trial court sentenced him to eight years in prison.
Undesignated statutory references are to the Penal Code.
DISCUSSION
I
Defendant contends the prosecutor committed misconduct by arguing to the jury that D., who had pending criminal charges, was entitled to the same presumption of innocence as defendant.
In her closing argument to the jury, the prosecutor said: "The pending Alameda case, okay, this is a unique one. The case is still pending. As the defendant sits here before you, right, defense is going to argue to you that he is protected by this veil of innocence. Innocent until proven guilty in a court of law. It works both ways. You can't pick and choose when the Constitution applies. [¶] She was arrested for that crime, she admitted she was arrested for that crime. How you interpret it while she is protected with that presumption of innocence, that's up to you. But please remember, that is a two-way street. [¶] So when defense gets up here and tells you that she's a bad person, she's a thief, she is still protected by that veil of innocence, okay? And that is not to say that she has not previously admitted a theft, but think about how much weight you're going to put into that."
Defense counsel highlighted D.'s lack of credibility during his closing argument. He pointed out that D. was recently arrested for car burglaries in Alameda County and was facing charges for those offenses. In rebuttal, the prosecutor once again mentioned the presumption of innocence with regard to D.'s Alameda County case.
Defendant's trial counsel did not object to the prosecutor's closing argument remarks that he now challenges, and he did not ask the trial court to admonish the jury regarding them. Defendant has thereby forfeited his prosecutorial misconduct claims. (People v. Riggs (2008) 44 Cal.4th 248, 298; People v. Panah (2005) 35 Cal.4th 395, 462.) " 'The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the [trial] court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.' " (People v. Brown (2003) 31 Cal.4th 518, 553.) Because there was no objection at trial, the trial court had no opportunity to address the challenge. Defendant concedes as much, acknowledging that a claim of prosecutorial misconduct is not cognizable on appeal absent a timely objection and request for admonishment.
II
Anticipating forfeiture, defendant argues his trial counsel was ineffective in not objecting to the prosecutor's statements that the presumption of innocence applied to D.
To establish ineffective assistance of counsel, defendant must prove (1) that his trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) If defendant makes an insufficient showing on either of those components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland, at p. 687.)
Thus, even if we were to assume deficient representation, defendant must affirmatively prove prejudice to establish ineffective assistance. (People v. Mickel (2016) 2 Cal.5th 181, 198.) Defendant must show a reasonable probability of a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)
Defendant fails to show prejudice. Evidence that D. had previously been convicted of crimes indicating dishonesty was presented at the trial. (People v. Chavez (2000) 84 Cal.App.4th 25, 28 [discussing crimes of moral turpitude].) The parties stipulated that D. had been convicted of solicitation to engage in acts of prostitution and attempted burglary. (People v. Chandler (1997) 56 Cal.App.4th 703, 709 [prostitution is a crime of moral turpitude]; People v. Muldrow (1988) 202 Cal.App.3d 636, 645 [attempted burglary is an act of moral turpitude].) D. admitted her prior convictions. Moreover, she admitted that she possessed other people's credit card information without permission and that she was testifying under a grant of immunity. Given the above evidence, there was no false aura of veracity surrounding D.
The trial court told the jury it must judge the credibility of a witness and that it may believe all, part or none of a witness's testimony. It instructed that the factors which the jury may consider in evaluating a witness's testimony included whether the witness committed a crime or other misconduct that reflected on his or her believability and whether the witness was promised immunity in exchange for his or her testimony. And if the jury found that a witness committed a crime or other misconduct, it was up to the jury to decide the weight of that fact and whether that fact made the witness less believable. The jury was told that the testimony of only one witness can prove a fact, but the jury should carefully review all of the evidence before it concluded that the testimony of one witness proved a fact. The trial court further instructed that if the jury determined there was a conflict in the evidence, it must decide what evidence to believe. The trial court told the jury to follow its instructions on the law. It admonished the jury to follow its instructions if the jury believed the attorneys' comments on the law conflicted with the trial court's instructions. Absent evidence to the contrary, and defendant does not identify any, we presume the jury followed the trial court's instructions on how to consider D.'s conduct in evaluating D.'s credibility. (People v. Houston (2012) 54 Cal.4th 1186, 1214; see People v. Cortez (2016) 63 Cal.4th 101, 131 [" '[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade' "].)
Defendant has not established prejudice and his claim of ineffective assistance lacks merit.
III
Defendant further claims the trial court failed to instruct the jury on the procurement element of pandering.
Section 266i sets forth alternative methods of pandering. (People v. Deloach (1989) 207 Cal.App.3d 323, 333.) Defendant was charged with violating section 266i, subdivision (a)(1). That subdivision defines pandering as "procuring" another person for the purpose of prostitution. (Ibid.) Consistent with an option in CALCRIM No. 1151, the trial court instructed, among other things, that to convict defendant of pandering, the jury must find that defendant successfully "persuaded" D. to become a prostitute and defendant intended to influence D. to be a prostitute.
The use notes to CALCRIM No. 1151 explain the word "persuade" in the subdivision (a)(1) instruction was included as an option "because the statutory language, 'procure,' may be difficult for jurors to understand." (Bench Notes to CALCRIM No. 1151 (2019) p. 903.) Among other things, the word "procure" can mean to persuade. (Black's Law Dict. (6th ed. 1990) p. 1208, col. 1.) It necessarily implies the use of persuasion. (People v. Schultz (1965) 238 Cal.App.2d 804, 812 [defining "procure"]; People v. Montgomery (1941) 47 Cal.App.2d 1, 11-12, disapproved on other grounds in Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11, People v. Dillon (1983) 34 Cal.3d 441, 454, fn. 2 and Zambia, supra, 51 Cal.4th at p. 981; People v. Cimar (1932) 127 Cal.App. 9, 12.) Given the evidence in this case, the use of the word "persuaded" in the pandering instruction did not change the elements of the section 266i, subdivision (a)(1) crime.
Another alternative for pandering is set forth in section 266i, subdivision (a)(2). That subdivision refers to the use of promises, threats, violence or any device or scheme. (Ibid.) Consistent with that language, CALCRIM No. 1151 offers a different option for a section 266i, subdivision (a)(2) charge. That option, which the trial court did not use, said that to prove that the defendant is guilty of pandering, the People must prove the defendant used promises, threats, violence, or any device or scheme. Contrary to defendant's argument, this different wording shows that the instruction given did not merge the subdivision (a)(1) and (a)(2) definitions of pandering. The instruction given did not require a finding that defendant used promises, threats, violence or any device or scheme. The trial court did not err in instructing the jury on pandering.
Defendant claims the prosecution presented a case of pandering under section 266i, subdivision (a)(2) rather than subdivision (a)(1), and the abstract of judgment should be amended to reflect a subdivision (a)(2) conviction. We disagree. Using the language of the CALCRIM No. 1151 instruction for subdivision (a)(1), the prosecutor argued to the jury that defendant successfully persuaded D. to become a prostitute. The prosecutor did not argue that defendant used promises, threats, violence or a device or scheme to cause D. to become a prostitute.
IV
Defendant disagrees with the California Supreme Court's holding in Zambia, supra, 51 Cal.4th 965, that a defendant can be convicted of pandering under section 266i by encouraging someone who is already a prostitute to engage in prostitution. He says Zambia should be reversed.
Because we are bound by the Supreme Court's decision in Zambia, supra, 51 cal.4th 965 (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), defendant's challenge in this court lacks merit.
V
Defendant asserts that the abstract of judgment should be corrected to show that defendant was sentenced pursuant to section 1170.12. The Attorney General agrees.
The trial court orally imposed the middle term on count one and doubled the term pursuant to section 1170.12 based on defendant's prior strike. The abstract of judgment does not reflect that defendant was sentenced pursuant to section 1170.12. If an abstract of judgment fails to reflect the judgment pronounced by the trial court, the error is clerical and the record can be corrected at any time to make it reflect the true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will direct the trial court to correct the abstract of judgment.
DISPOSITION
The judgment is affirmed. The trial court shall prepare a corrected abstract of judgment reflecting that defendant was sentenced pursuant to section 1170.12, and forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
HOCH, J.