Opinion
B295306
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. RAYLONZO ROBERTS, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, William H. Shin and Peggy Z. Huang, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA439381) APPEAL from a judgment of the Superior Court of the County of Los Angeles, Robert Perry, Judge. Affirmed and remanded with instructions. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, William H. Shin and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following a jury trial, defendant Raylonzo Roberts was convicted of, among other crimes, human trafficking of a minor, pimping, pandering, and committing lewd acts on a child under the age of 14. On appeal, defendant contends that the trial court erred in instructing the jury on counts 1 and 15, pandering by procuring a minor under the age of 16. He further contends that the court violated his Sixth Amendment confrontation rights by admitting the preliminary hearing testimony of four victims who were unavailable at trial. We affirm.
II. PROCEDURAL BACKGROUND
Because defendant does not challenge the sufficiency of the evidence in support of his convictions, we do not include a detailed summary of the trial evidence.
In a 14 count information, the Los Angeles County District Attorney charged defendant in counts 1 and 15 with pandering by procuring a minor under the age of 16 in violation of Penal Code section 266i, subdivision (b)(2); in count 2 with pimping a minor 16 years of age or older in violation of section 266h, subdivision (b)(1); in counts 3, 8, and 11 with human trafficking of a minor for a commercial sex act, in violation of section 236.1, subdivision (c)(1); in counts 4 and 12 with human trafficking of a minor for a commercial act, by force, fear, fraud, or threat of injury in violation of section 236.1, subdivision (c)(2); in count 5 with aggravated sexual assault of a child in violation of section 261, subdivision (a)(2); in count 10 with assault with a firearm in violation of section 245, subdivision (a)(2); in counts 13 and 14 with committing a lewd act upon a child in violation of section 288, subdivision (a); in count 16 with possession of a firearm by a felon in violation of section 29800, subdivision (a)(1); and in count 17 with human trafficking to commit another crime in violation of section 236.1, subdivision (b).
All further statutory references are to the Penal Code.
The District Attorney alleged as to counts 4, 5, 10, 12, 13, and 14 that defendant had suffered 11 prior serious felony convictions within the meaning of section 667, subdivision (a)(1). The District Attorney further alleged that defendant had suffered two or more serious and/or violent felonies within the meaning of sections 667, subdivisions (b) through (j) and 1170.12.
Defendant pleaded not guilty and denied the special allegations. Prior to trial, the court granted defendant's motion to dismiss count 2. At the close of evidence, the trial court granted defendant's motion to dismiss count 11. Following trial, the jury found defendant guilty on all remaining charges, except count 10 on which the jury found him not guilty.
Following a bifurcated trial on defendant's prior convictions, the jury found true the allegations that defendant suffered prior serious and/or violent felony convictions within the meaning of sections 667, subdivisions (b) through (j) and 1170.12. The trial court sentenced defendant to an aggregate prison term of 301 years, four months to life with the possibility of parole after 260 years.
As to count 8, the transcript of the sentencing hearing reflects that the trial court sentenced defendant to 45 years to life, but the abstract of judgment reflects a sentence of 25 years to life. We will order the trial court to correct the abstract of judgment to accurately reflect its oral pronouncement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
III. DISCUSSION
A. Instruction on Pandering by Procuring a Minor Under 16
1. Background
The trial court instructed the jury on counts 1 and 15, in pertinent part: "The defendant is charged in counts 1 and 15 with pandering in violation of Penal Code section [266i]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant used promises, threats or violence to cause, persuade, encourage or induce the alleged victim to become a prostitute; [¶] 2. The defendant intended to influence the alleged victim to be a prostitute; and [¶] 3. The alleged victim was under the age of 16 years at the time the defendant acted. [¶] It does not matter whether the alleged victim was a prostitute already."
Defendant contends that this instruction was erroneous because it allowed the jury to find him guilty of the pandering charges if it found that he merely encouraged "someone already engag[ed] in prostitution . . . ." According to defendant, section 266i requires instead that defendant encourage someone who was not a prostitute to become one. Relying primarily on the dissenting opinions of Justices Kennard and Werdegar in People v. Zambia (2011) 51 Cal.4th 965 (Zambia), defendant acknowledges the majority opinion in that case, but urges us to express our disagreement with the majority because the issue is one of public importance.
2. Controlling Authority
Section 266i, subdivision (a)(2), provides, in pertinent part, that any person who "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute" is guilty of pandering. In Zambia, supra, 51 Cal.4th 965, the majority of the court rejected the defendant's assertion that the phrase "'to become a prostitute'" did not include encouraging a person who was already a prostitute. (Id. at p. 972.) According to the court, "[t]he phrase 'encourages another person to become a prostitute' can readily be understood to encompass the goal that the target 'become a prostitute' in the future for the benefit of the encourager or some other pimp. (§ 266i, subd. (a)(2).) This interpretation of the pandering statute is consistent with long-standing case law and the Legislature's intent to combat pandering and prostitution." (Zambia, supra, 51 Cal.4th at p. 975.) Based on that construction of the statute, the court concluded "that the proscribed activity of encouraging someone 'to become a prostitute,' as set forth in section 266i, subdivision (a)(2), includes encouragement of someone who is already an active prostitute, or undercover police officer." (Zambia, supra, 51 Cal.4th at p. 981.)
3. Analysis
As defendant concedes, stare decisis requires us to apply the holding of the Zambia, supra, 51 Cal.4th 965 decision to resolve the claim of instructional error on appeal against him. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject defendant's assertion of error and decline his invitation to voice disagreement with such longstanding and binding precedent. B. Admission of Preliminary Hearing Testimony
1. Background
Prior to opening statements, the trial court conducted a hearing on whether the prosecution had exercised due diligence in securing the trial appearance of certain witnesses such that those witnesses were unavailable within the meaning of Evidence Code section 240, subdivision (a)(5). At the end of the hearing, the court concluded, "a valid showing of due diligence has been made for the production of Bryanna P., Mary L., Noni B. and Lysheawn G., and I will allow their prior testimony to be read into the record at the appropriate time."
In response, defendant's counsel stated, "That [is] over defense objection, Your Honor." Counsel, however, did not suggest or imply that the preliminary hearing testimony of the unavailable witnesses was inadmissible, notwithstanding the due diligence finding, because defendant's motive and opportunity to cross-examine those witnesses at the prior hearing was different than his motive and opportunity at trial.
During trial, and outside the presence of the jury, the prosecution presented evidence of its efforts to secure the appearance at trial of Christina H. The court concluded that Christina H. was unavailable. Defendant did not object to this finding.
During trial, the preliminary hearing testimony of Noni B., Mary L., Bryanna P., Lysheawn G., and Christina H. was read into the record without further objection.
Defendant contends that the trial court violated his Sixth Amendment right to confront the witnesses against him when it admitted the preliminary hearing testimony of victims Mary L., Lysheawn G., Christina H., and Bryanna P. According to defendant, although our Supreme Court has generally found such prior testimony admissible under the Sixth Amendment because it was subject to cross-examination, those cases do not apply here because he had a different motive and opportunity to cross-examine during the prior hearing than he did at trial.
Noni B. testified at the preliminary hearing as a percipient witness, but not as a victim of a charged offense. --------
2. Controlling Authority
"Although defendants generally have the right to confront their accusers at trial, this right is not absolute. 'If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial.' (People v. Smith (2003) 30 Cal. 4th 581, 609 . . . [(Smith)]; see Evid. Code, § 1291, subd. (a).) The defendant 'must not only have had the opportunity to cross-examine the witness at the previous hearing, he must also have had "an interest and motive similar to that which he has at the [subsequent] hearing."' ([Smith], supra, [30 Cal.4th] at p. 611.) Under these rules, 'we have routinely allowed admission of the preliminary hearing testimony of an unavailable witness.' (Ibid.) The recent decision of Crawford v. Washington (2004) 541 U.S. 36 . . . , although changing the law of confrontation in some respects, left these principles intact. 'Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.' (Id. at p. 59.) 'Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.' (Id. at p. 68.)" (People v. Seijas (2005) 36 Cal.4th 291, 303 (Seijas).)
3. Forfeiture
The Attorney General argues that defendant forfeited his contention that the admission of the preliminary hearing testimony of the four victims violated his confrontation rights. Defendant does not challenge the trial court's unavailability and due diligence determinations, but rather limits his contention to the lack of a similar motive or sufficient opportunity to cross-examine those witnesses. Because defendant did not object in the trial court on that latter ground, the Attorney General concludes that defendant has forfeited the contention on appeal. We agree.
"A fundamental tenet of our system of justice is the well-established principle that a party's failure to assert error or otherwise preserve an issue at trial ordinarily will result in forfeiture of an appeal of that issue. '"The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had."' (People v. Walker (1991) 54 Cal.3d 1013, 1023 . . . , quoting People v. Melton (1990) 218 Cal.App.3d 1406, 1409 . . . .)" (People v. McKinnon (2011) 52 Cal.4th 610, 636.)
Defendant's only objection to the admission of the preliminary hearing testimony of the four victims was made following the due diligence hearing and the trial court's finding that the prosecution had exercised due diligence. Given the context in which that objection was made, it can fairly be construed as, and limited to, an objection to that due diligence finding. At no point prior to the admission of the preliminary hearing testimony, however, did defendant object that his motive or opportunity to cross-examine the victims at the hearing was inadequate to satisfy his confrontation rights. His contention based on that ground has therefore been forfeited.
Even if defendant did not forfeit the argument by failing to object below, to the extent he contends that his motive or opportunity to cross examine at the preliminary hearing was not similar to his motive and opportunity at trial, he has failed to provide specific references to the record of the preliminary hearing demonstrating his lack of sufficient motive or opportunity to cross-examine or otherwise develop his argument on appeal. (See People v. Aguayo (2019) 31 Cal.App.5th 758, 768 [failure to develop an argument or cite authority for a contention forfeits the issue on appeal].) In the absence of such a specific showing, the longstanding line of Supreme Court decisions allowing the admission of preliminary hearing testimony upon a showing of unavailability and an opportunity to cross-examine would require us to conclude that the trial court did not violate defendant's Sixth Amendment confrontation rights. (People v. Valencia (2008) 43 Cal.4th 268, 291-302; Seijas, supra, 36 Cal.4th at p. 303; and Smith, supra, 30 Cal.4th at p. 609.)
IV. DISPOSITION
The judgment is affirmed and the matter is remanded with instructions to correct the abstract of judgment to reflect defendant's sentence of 45 years to life on count 8 and to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN, P. J.
MOOR, J.