Opinion
A156471
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. DARIUS JAMES SWAIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 17-CR-019486)
Darius James Swain appeals after he was convicted by a jury of several crimes relating to his sexual exploitation, including human trafficking (Pen. Code, § 236.1, subd. (c)(2)), of 15-year-old Jane Doe. On appeal, Swain contends that: (1) certain of his convictions are not supported by substantial evidence; (2) he was deprived of notice and due process; (3) the trial court committed instructional error; (4) the human trafficking statute is unconstitutional; (5) admission of Jane Doe's preliminary hearing testimony violated the confrontation clause of the Sixth Amendment; (6) the trial court was unaware of its discretion to strike an enhancement for a prior serious felony; and (7) his sentence violates section 654. We agree the trial court made sentencing errors but otherwise affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
A.
In March or April 2017, 15-year-old Jane Doe ran away from her home in Fresno. She worked as a prostitute on International Boulevard, which is the "blade" known for street prostitution in Oakland. After a couple of weeks, Jane developed a romantic relationship with another runaway, 17-year-old Melissa Doe, who was also working as a prostitute. Jane began working on a "team" with Melissa for an unidentified pimp.
Later, Swain was both Melissa's and Jane's pimp for about a week. During that time, Jane told Swain she was 17 years old. The girls slept in Swain's car or in housing he arranged. Swain provided Jane with condoms, and she gave him all the money she earned from her commercial sex work. Swain drove them to and from the blade and circled nearby, in his car, while they worked. A 14-year-old girl named L. Doe, but who went by "Destiny" and "Booty," was Swain's "bottom," which meant she held a supervisory position. Jane rarely communicated directly with Swain. Instead, she communicated, via text, with Destiny.
B.
The relationship between Jane and Swain began when Melissa, who had worked for Swain previously, decided to return to work for him. Melissa told Jane that Swain was a pimp she used to work for and that he was the father of Melissa's unborn child. Melissa and Jane, who were drunk at the time, got into Swain's car, and he began driving towards San Jose. Destiny sat in the front passenger seat. Before they left Oakland, Swain stopped at a gas station. Melissa and Destiny were arguing. This upset Swain and he punched Melissa in the face five times. When Jane tried to help Melissa, Swain hit Jane in the face and then drove away. Melissa and Jane found another ride back to International Boulevard.
The next day, Melissa and Jane saw Swain again and got in his car. Swain drove them to another blade, in San Jose, where Jane understood she was to exchange sex for money. Once they arrived in San Jose, Melissa and Swain argued. He hit Melissa, threw her on the ground, and kicked her in the face. Swain also punched Jane. While the girls remained in San Jose, Swain drove around the neighborhood, monitoring whether Melissa and Jane were "catching dates."
On April 20, 2017, a police officer encountered Swain, Jane, and Melissa in San Jose. At Swain's instruction to cooperate, Melissa provided her real name, admitted she had run away from a group home, and left with the officer. Swain drove Jane back to Oakland, to work on International Boulevard.
That night, Jane had an overnight "date"—she spent the night with a customer who paid for sex. When Jane's customer drove her back to International Boulevard the following day, she saw Swain and Destiny. Jane feared she was "going to get beat up" but eventually got in the car with Swain and Destiny. Swain asked Jane for the money from her date. Jane refused, telling him she wanted to go back to Fresno.
Swain became angry and drove Jane to a vacant parking lot. He asked where the money was, and Jane denied she had any. Swain removed Jane's cell phone from her bra and threatened to "beat [her] ass" if she did not hand him the money. Swain repeatedly punched Jane in the face, removed all her clothes (including her underwear), took the money and the clothes, and drove away. When a police officer was summoned by an eyewitness, the officer observed scratches to Jane's chest and a cut and bruising around her left eye.
Two months later, Destiny was cited for loitering with the intent to commit prostitution (§ 653.22, subd. (a)(1)) and released. At the time, she had Swain's identification card in her purse but identified him as her brother. After she was released, law enforcement officers followed Destiny to Swain and arrested him. Officers found a loaded gun, ammunition, and the citation just issued to Destiny in Swain's backpack. Swain claimed Destiny was his cousin and then his girlfriend. Asked about the April interaction with police, in San Jose, Swain denied being a pimp but admitted providing transportation. He also admitted picking Jane up the following day, on International Boulevard, and stripping her in a parking lot.
C.
The prosecution presented evidence Swain had previously used a similar prostitution scheme with two other teenaged runaways—Melissa and Thea Doe. Thea met Swain in Las Vegas, in 2004, when she was 16 years old and engaging in prostitution after leaving a group home. Thea brought her possessions to Swain's house and he told her that he was a pimp. Swain then took Thea to the Las Vegas Strip, threatened her with violence, and said, "[she] had to make him money or [she would] not get [her] stuff back." After Thea called the police and Swain discussed acting as her pimp during a pretext call, he was arrested.
Melissa testified she was 17 years old when Swain became her pimp. Swain simply picked her up in his car, told her that he was a pimp, and Melissa agreed to work for him. Melissa gave Swain the money she made each day from prostitution, and he arranged a place for Melissa to sleep. While she worked on the blade, Swain monitored her activities from his car. He punched Melissa when she disrespected him, such as by talking to another pimp.
D.
The prosecution's expert in the sexual exploitation of minors, human trafficking, and pimping and pandering testified that females working for a pimp typically give the pimp all money earned from prostitution, in exchange for protection, transportation, shelter, condoms, and food. Teenagers are attractive to pimps as they are more easily manipulated and may command a higher price from customers.
The expert described "Romeo pimping," which typically involves charm or romance by the pimp, who provides food, housing, and other material support to convince a female to engage in prostitution. This style also commonly involves disciplinary violence against prostitutes, and females who have already worked as prostitutes. Pimps may also "strip" prostitutes of all their clothes to demean the prostitute, to induce fear, and to determine if she is holding any money back. In response to a hypothetical question that assumed facts consistent with the evidence in this case, the expert opined that the assumed facts reflected a pimping relationship between the pimp and the 15-year-old that was consistent with human trafficking.
E.
Swain did not testify. The defense presented evidence that Melissa and Jane did not exhibit any obvious signs of injury when officers interacted with them in San Jose. Jane also told a police officer that she "was hoeing for [Swain] because of . . . Melissa, because wherever she wanted to go that's where I would go . . . but then I didn't have nowhere to go, so she told me to go with [Swain]."
F.
The jury convicted Swain on all counts: human trafficking of a minor (§ 236.1, subd. (c)(2); count one); pimping a child under 16 years old (§ 266h, subd. (b); count two); pandering (§ 266i, subd. (a); count three); second degree robbery (§ 211; count four); possession of a firearm by a felon (§ 29800, subd. (a)(1); count five); and possession of ammunition by a felon (§ 30305, subd. (a)(1); count six). The trial court also found Swain had been convicted of a prior strike offense (§§ 667, subds. (a)(1), (e)(1), 1170.12, subds. (a), (c)(1)) and had served a prior prison term for another felony (§ 667.5, subd. (b)).
Swain was sentenced to a prison term of 15 years to life on the human trafficking conviction, which was doubled for his prior strike (§ 667, subd. (e)(1)). The trial court also imposed a consecutive five-year term for Swain's prior strike offense, pursuant to section 667, subdivision (a)(1), stayed punishment on the prior prison term enhancement, and imposed concurrent terms on counts two through six.
DISCUSSION
A.
Swain raises several challenges to his pandering conviction, arguing that the trial court committed instructional error and deprived him of due process, and that the conviction is unsupported by substantial evidence. None of the arguments has merit.
1.
Section 266i, subdivisions (a)(1) through (a)(6), establishes six different ways in which the offense of pandering can be committed. (People v. Zambia (2011) 51 Cal.4th 965, 977-978 (Zambia).) In relevant part, section 266i, subdivision (a), provides that a person who does any of the following is guilty of pandering: "(1) Procures another person for the purpose of prostitution. [¶] (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute. [¶] (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. [¶] (4) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate."
The pandering statute was intended to "discourag[e] persons other than the prostitute from augmenting and expanding a prostitute's operation, or increasing the supply of available prostitutes." (People v. Hashimoto (1976) 54 Cal.App.3d 862, 867; accord, Zambia, supra, 51 Cal.4th at pp. 973-974.) The chief difference between the first two subdivisions is that subdivision (a)(1) requires successful persuasion of a person to act as a prostitute while subdivision (a)(2) does not require success. (See People v. Bradshaw (1973) 31 Cal.App.3d 421, 425-426.) "Both subdivision (a)(3) and (4) of section 266i address the specific issue of brothels. . . . [T]he Legislature intended subdivision (a)(3) and (4) to address the inherently coercive atmosphere in brothels, recognizing that delivering victims to a brothel, or acting to keep them there, are sufficiently evil acts whether or not the actor encourages or pressures the victim 'to become' a prostitute once there." (Zambia, supra, 51 Cal.4th at pp. 980-981.)
2.
Swain was charged with pandering by procuring (§ 266i, subd. (a)(1)). However, the trial proceeded on the theory that Swain committed pandering either by procurement or by encouraging Jane to remain a prostitute in a place in which prostitution is encouraged (§ 266i, subd. (a)(4)).
The trial court instructed the jury on both theories without objection, using CALCRIM No. 1151: "To prove that the defendant is guilty of Pandering, the People must prove that: [¶] 1. The defendant successfully persuaded Jane Doe to become a prostitute [§ 266i, subd. (a)(1)]; [¶] or [¶] The defendant used promises, / threats, /violence, or any device or scheme to cause, /persuade, /encourage or induce Jane Doe to remain as a prostitute in a house of prostitution or any other place where prostitution is encouraged or allowed. [¶] AND [¶] 2. The defendant intended to influence Jane Doe to become a prostitute; [¶] AND [¶] 3. Jane Doe was under the age of 16 years at the time the defendant acted. [¶] It does not matter whether Jane Doe was a prostitute already."
3.
Swain maintains the trial court erred by instructing the jury on a legally unsupported theory of pandering. After reviewing the instruction de novo (People v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on other grounds by People v. Hill (1998) 17 Cal.4th 800, 822-823), we find no error.
Specifically, Swain challenges the language of alternative 1D of CALCRIM No. 1151, contending it was erroneous to instruct the jury it could convict him of pandering if he "used promises, / threats, /violence, or any device or scheme to cause, /persuade, /encourage or induce Jane Doe to remain as a prostitute in a house of prostitution or any place where prostitution is encouraged or allowed." (Italics added.) He complains that the trial court eliminated section 266i, subdivision (a)(4)'s "inmate" requirement by substituting the word "prostitute."
We assume the argument is properly before us despite Swain's failure to object below. (See § 1259 ["appellate court may . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"].) Nonetheless, Swain fails to persuade us the language of the standard jury instruction varies materially from the language in section 266i, subdivision (a)(4). Indeed, our Supreme Court has observed that the statutory term, "inmate," refers to "active prostitutes." (Zambia, supra, 51 Cal.4th at p. 977.) Swain has not shown instructional error.
4.
Alternatively, Swain argues he was deprived of notice and due process because the prosecution was permitted to convict him of a pandering offense not charged in the information.
"Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial. [Citations.] This means that except for lesser included offenses, an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense. [Citation.] An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense." (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438; accord, People v. Toro (1989) 47 Cal.3d 966, 975 (Toro), disapproved on other grounds by People v. Guiuan (1998) 18 Cal.4th 558, 568 & fn. 3.)
Swain either implicitly consented to an informal amendment of the information or forfeited his due process argument by failing to object to the jury instruction that included section 266i, subdivision (a)(4) as a possible basis for the pandering conviction. (See, e.g., Toro, supra, 47 Cal.3d at pp. 975-976 ["The general rule . . . is that a claim of unfair surprise at trial may not be raised for the first time after verdict"]; id. at p. 977; People v. Houston (2012) 54 Cal.4th 1186, 1228.)
Swain contends he cannot be considered to have consented because, unlike in Toro, supra, 47 Cal.3d at pp. 969-970, adding alternative 1D to CALCRIM No. 1151 did not subject him to potential punishment on a lesser related offense. However, he fails to persuade us a different rule should apply here—when under either alternative Swain was subject to conviction of the same offense and imposition of the same punishment. (See § 266i, subds. (a)(1), (a)(4); People v. Lax (1971) 20 Cal.App.3d 481, 486 [subdivisions of § 266i "do not state different offenses," they all carry the same penalty, and "merely define the different circumstances under which the crime of pandering may be committed"].) In these circumstances, Swain was required to object to preserve his notice argument.
In any event, Swain's argument fails on the merits. As we explained above, we do not agree with Swain that a violation of section 266i, subdivision (a)(1) constitutes a different offense from a violation of section 266i, subdivision (a)(4). And " '[n]otice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate.' " (People v. Holt (1997) 15 Cal.4th 619, 672; accord, People v. Peyton (2009) 176 Cal.App.4th 642, 657.)
We have reviewed the transcript from the preliminary hearing and find no support for Swain's position that he was unprepared to defend the pandering case against him. Indeed, at the preliminary hearing Swain's counsel quoted the language of CALCRIM No. 1151 that corresponds to section 266i, subdivision (a)(4), referred to it as an "alternative" to procuring, and argued that the evidence was insufficient to meet it. Combined with the fact that Swain never claimed he was surprised at trial, it is evident that he had notice. (See People v. Lax, supra, 20 Cal.App.3d at p. 487 [notwithstanding variance between the charge "couched in the language of" former section 266i, subdivision (c), and evidence and instruction on former subdivision (b), defendant "knew what he had to defend against and made his defense accordingly; and at no time [did] he ever claim[] he was misled"].) The authorities Swain cites do not compel a different conclusion.
5.
Swain argues his pandering conviction is unsupported because he did not affirmatively "procure" Jane as a prostitute; rather, Jane selected him, and he merely assisted her ongoing prostitution. Swain has failed to meet his appellate burden to show error.
As noted above, the jury was instructed on two alternate theories. (See § 266i, subds. (a)(1), (a)(4).) Yet, Swain only challenges the sufficiency of the evidence supporting the first theory. He effectively concedes substantial evidence supports his conviction under subdivision (a)(4). We must presume a trial court's judgment is correct; the appellant bears the burden of affirmatively demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666; see also, People v. Thompson (2010) 49 Cal.4th 79, 119 [" 'Where the jury considers both a factually sufficient and a factually insufficient ground for conviction, and it cannot be determined on which ground the jury relied, we affirm the conviction unless there is an affirmative indication that the jury relied on the invalid ground' "].) Swain has failed to meet his burden and we must uphold his pandering conviction.
B.
We also reject Swain's challenges to his conviction for human trafficking.
1.
First, Swain argues the People presented insufficient evidence he "cause[d], induce[d], or persuade[d], or attempt[ed] to cause, induce, or persuade" Jane to engage in commercial sexual activity, as is required by section 236.1, subdivision (c)(2). We disagree.
Section 236.1, subdivision (c), provides: "A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor . . . to engage in a commercial sex act, with the intent to effect or maintain a violation of Section . . . 266h, [or] 266i, . . . is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison as follows: [¶]. . .[¶] (2) Fifteen years to life and a fine of not more than five hundred thousand dollars ($500,000) when the offense involves force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person." (Italics added.) Subdivision (d) of the statute states, "In determining whether a minor was caused, induced, or persuaded to engage in a commercial sex act, the totality of the circumstances including the age of the victim, his or her relationship to the trafficker or agents of the trafficker, and any handicap or disability of the victim, shall be considered."
Swain may be correct that Jane infrequently communicated with him directly. But he cites no authority suggesting that only words of encouragement or persuasion are prohibited by section 236.1, subdivision (c). In fact, both the purpose of the statute and the stiffer penalties for offenses that include "force" and "violence" suggest otherwise. (§ 236.1, subd. (c)(2).) Here, there was ample evidence that Swain assaulted Jane and forcibly took her phone, money, and clothes after she refused to hand over the proceeds of a commercial sex act, saying she wanted to return to Fresno. Jane testified about these events, and an eyewitness, surveillance video, and Swain's admissions corroborated her testimony. The jury could also consider the expert testimony, the evidence of Swain's prior use of threats and violence, and the fact that Jane was a 15-year-old runaway to reasonably infer that Swain used force and fear to attempt to persuade Jane to continue engaging in commercial sex acts for his benefit as her pimp. That the jury could have drawn other inferences, as Swain urges, is irrelevant on appeal. (People v. Harrison (2005) 35 Cal.4th 208, 249.)
It is also no defense that, after Jane told Swain she wished to return to Fresno, he failed to persuade Jane to resume commercial sex acts for his benefit. (People v. Shields (2017) 23 Cal.App.5th 1242, 1250 ["Under [subdivision (c)] of the statute, the prohibited conduct [includes] attempting (i.e., specifically intending) to cause, induce, or persuade another person to engage in a commercial sex act with the intent to commit one of the target offenses"].) The focus is on the defendant's wrongful acts, not the victim's subjective response. (Cf. People v. Soto (2011) 51 Cal.4th 229, 246; see § 236.1, subds. (h)(1) [" 'Coercion' includes a scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person" (italics added)], (h)(4) [" 'Duress' includes a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to acquiesce in or perform an act which he or she would otherwise not have submitted to or performed" (italics added)].)
2.
In the alternative, Swain complains that the same act may violate both the pandering statute (§ 266i, subd. (b)(2)) and the human trafficking statute (§ 236.1, subd. (c)(2)) but be punished in vastly different ways, "[d]epending entirely on the whim of the prosecution." He contends section 236.1 violates California's separation of powers clause (Cal. Const., art. III, § 3) by delegating judicial sentencing discretion to the executive branch. We agree with the People that Swain forfeited this argument by failing to raise it below.
Even if we exercise our discretion to address this issue of law for the first time on appeal (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds), it fails on the merits. (See, e.g., Manduley v. Superior Court (2002) 27 Cal.4th 537, 553 ["[a] statute conferring upon prosecutors the discretion to make certain decisions before the filing of charges . . . is not invalid simply because the prosecutor's exercise of such charging discretion necessarily affects the [court's] dispositional options"].)
3.
Swain's equal protection and due process challenges to the human trafficking statute also fail. Again, even if we exercise our discretion to address issues raised for the first time on appeal, it is settled that "neither the existence of two identical criminal statutes prescribing different levels of punishments, nor the exercise of a prosecutor's discretion in charging under one such statute and not the other, violates equal protection principles," as long as charging decisions are not made on the basis of race, religion, or other suspect classifications. (People v. Wilkinson (2004) 33 Cal.4th 821, 838, citing United States v. Batchelder (1979) 442 U.S. 114, 124-125, & fn. 9.) Nor is due process violated by the existence of overlapping criminal statutes with different punishments. (Batchelder, supra, at pp. 123-125; Wilkinson, supra, at p. 841, fn. 7.) "Although [Swain] might have been both a panderer and a trafficker, that does not mean the prosecutor was obligated to charge him with the more lenient of the two offenses." (People v. Brown (2017) 14 Cal.App.5th 320, 340.)
C.
Swain contends admission of Jane Doe's preliminary hearing testimony violated the confrontation clause of the Sixth Amendment because the People failed to demonstrate she was "unavailable." We disagree.
1.
"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)" (People v. Cromer (2001) 24 Cal.4th 889, 892.) However, that right is not absolute. An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination. (Evid. Code, § 1291, subd. (a)(2); Cromer, supra, at p. 892.) Under federal constitutional law, such testimony is admissible if the prosecution shows it made "a good-faith effort" to obtain the presence of the witness at trial. (Barber v. Page (1968) 390 U.S. 719, 725.) California allows introduction of the witness's prior recorded testimony if the prosecution has used reasonable or due diligence in its unsuccessful efforts to locate the missing witness. (Evid. Code, § 240, subd. (a)(5); Cromer, supra, 24 Cal.4th at p. 892.)
The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable. (People v. Smith (2003) 30 Cal.4th 581, 609.) "The term '[r]easonable diligence, often called "due diligence" in case law, " 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' " ' [Citation.] Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.' [Citation.] In this regard, 'California law and federal constitutional requirements are the same[.]' " (People v. Herrera (2010) 49 Cal.4th 613, 622.) When the facts are undisputed, we independently review the due diligence question. (People v. Fuiava (2012) 53 Cal.4th 622, 675 (Fuiava).)
2.
In September 2017, Jane Doe testified at Swain's preliminary hearing. But when trial began about one year later, the prosecution sought to introduce Jane's preliminary hearing testimony under Evidence Code section 1291 because she could not be located after running away from home. In support of its motion, filed on October 24, 2018, the prosecution included an unsworn report detailing efforts made, by Inspector Tim Bergquist, to maintain contact with Jane and her mother between the preliminary hearing and trial, as well as his efforts to locate her after learning of her disappearance. The trial court considered this report without objection.
Specifically, Bergquist stated he had met with Jane in person twice and had spoken with Jane or her mother on the phone on six other occasions since the preliminary hearing. On September 21, 2018, Jane's mother assured him that Jane knew of the approaching trial date, that Jane and her mother would travel to Oakland to testify, and that Jane's social worker would accompany them. When the trial began on October 4, Jane's mother repeated these assurances and Bergquist booked a hotel room for them.
On October 22, Bergquist learned that Jane had run away. He immediately and repeatedly searched law enforcement databases, instructed Jane's mother and social worker to file missing person reports, distributed flyers to law enforcement in Oakland and Fresno, and contacted Jane's witness advocate. Jane was not located.
At the hearing on the prosecution's motion, defense counsel objected to admission of Jane's preliminary hearing testimony on confrontation grounds, stating specifically that "the foundation for Evidence Code [section] 240 hasn't been laid." The trial court determined the prosecution had used reasonable diligence and that Jane was unavailable to testify at trial. Accordingly, Jane's prior testimony was read to the jury.
3.
The People met their burden to show Jane was unavailable. In arguing to the contrary, Swain contends the People did not meet their duty to use reasonable means to prevent Jane from becoming absent, relying on People v. Louis (1986) 42 Cal.3d 969 (Louis).
In Louis, our Supreme Court held the due diligence standard was unmet because the prosecutor took no steps to prevent a vital witness's absence. (Louis, supra, 42 Cal.3d at pp. 990-991.) The absent witness was known to be unreliable, his credibility was suspect, and nonetheless the prosecution did not seek to hold him as a material witness pending trial but agreed to the witness's request for an "own recognizance" release immediately preceding the witness's sentencing on his own criminal charges. (Id. at pp. 977-978, 989, 990-991, 993.) The prosecutor later admitted knowing " 'there was a very real possibility that the [witness] would boogie, that he wouldn't show up.' " (Id. at p. 992.)
As our Supreme Court has noted, however, Louis was an extreme case, and "[s]ubsequent cases have limited [its] holding . . . to its peculiar facts." (People v. Thomas (2011) 51 Cal.4th 449, 502.) The prosecution does not have an "obligation to keep 'periodic tabs' on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive." (People v. Hovey (1988) 44 Cal.3d 543, 564 (italics added); accord, People v. Herrera, supra, 49 Cal.4th at p. 630.) The People must take precautions to prevent a witness from disappearing only if the witness's testimony is "critical" or "vital" to the prosecution's case and the prosecution knows of a "substantial risk" he or she will become unavailable. (People v. Wilson (2005) 36 Cal.4th 309, 342; People v. Hovey, supra, 44 Cal.3d at p. 564; People v. Roldan (2012) 205 Cal.App.4th 969, 976-977.)
Here, at least one of these two prerequisites is missing. (People v. Hovey, supra, 44 Cal.3d at p. 564.) Even if Jane, as the victim of the first four charges, was "vital" or "critical", Swain cannot show Jane presented a risk of disappearing at all comparable to the witnesses in Louis. (Compare Louis, supra, 42 Cal.3d at p. 974 [witness was "likely to disappear" if released from custody on his own recognizance because he faced his own sentencing hearing] and People v. Roldan, supra, 205 Cal.App.4th at p. 976 [witness was "already in the process of being deported by the federal government"] with People v. Friend (2009) 47 Cal.4th 1, 69 ["The fact that [the absent witness] had missed one hearing date did not create a substantial risk that he would permanently disappear"].)
Swain argues the prosecution should have anticipated Jane's disappearance because she was a runaway at the time of the charged conduct and because her mother testified that she had run away on other occasions. We cannot consider Jane's mother's testimony because that evidence was presented after the trial court's due diligence inquiry. In this case, we see no reason the People should have foreseen a substantial risk that Jane would suddenly stop cooperating and go missing, after she testified at the preliminary hearing and her mother provided repeated assurances they would voluntarily appear at trial. (People v. Cromer, supra, 24 Cal.4th at p. 904.)
The prosecution's efforts in this case are like those our Supreme Court deemed sufficient in People v. Fuiava, supra, 53 Cal.4th at pp. 675-676. In that case, a detective began looking for the witness two weeks before the date set for trial. First, he checked her last known addresses and, when she was not found there, checked Department of Motor Vehicle, hospital, and jail records, and visited another address discovered through such searches. Finally, the detective gave patrol deputies the witness's photograph and a physical description. (Ibid.) The court rejected the defendant's argument that the prosecution was duty bound to have kept tabs on the witness between the preliminary hearing and trial because it knew she was fearful of testifying and thus should have known she might flee. (Id. at p. 676.) The Fuiava court explained: "[S]he did testify at the preliminary hearing, and, . . . she testified that she had moved (with the assistance of the sheriff's department) since the shooting, which presumably was for her protection." (Ibid.) The court also emphasized that the administrative burdens of requiring monitoring of witnesses would be prohibitive and that it was unclear what effective measures the prosecution could take when a witness decides to leave or disappear. (Id. at pp. 676-677)
As in Fuiava, the prosecution's failure to keep closer tabs on Jane does not negate a finding of reasonable diligence. Here, too, it is unclear what other steps the People should have reasonably taken to locate Jane after she disappeared. Swain claims Bergquist himself should have searched for Jane along the blades in Oakland and San Jose. But this is based on speculation. There is no indication Jane returned to either location, and officers in Oakland had been informed to watch for Jane. " 'That additional efforts might have been made or other lines of inquiry pursued does not affect [a] conclusion [there was due diligence].' " (People v. Diaz (2002) 95 Cal.App.4th 695, 706.)
We conclude the People carried their burden of showing due diligence.
D.
Next, Swain argues, as he did below, that section 654 barred the trial court from imposing unstayed sentences on all three sexual exploitation offenses—human trafficking, pandering, and pimping—because his actions comprised a single course of conduct and he acted with the same objective, i.e., to induce Jane to commit acts of prostitution for his financial benefit. (See § 654, subd. (a) [where an act is "punishable in different ways by different provisions of law . . . , in no case shall the act . . . be punished under more than one provision"].) The People concede Swain's punishment for pandering must be stayed because it is based on the same underlying acts as the human trafficking offense, but they assert punishment on the pimping count does not violate section 654. The People have the better argument.
1.
"Section 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) The statute ensures a defendant's punishment is commensurate with his culpability and that he is not punished more than once for what is essentially a single criminal act. (See People v. Latimer (1993) 5 Cal.4th 1203, 1211.)
" 'If [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.] '[A] course of conduct divisible in time, although directed to one objective, may [also] give rise to multiple violations and punishment.' " (People v. Leonard (2014) 228 Cal.App.4th 465, 499; accord, People v. Britt (2004) 32 Cal.4th 944, 951-952.) "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation . . . already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
2.
Even if Swain committed the offenses with a single objective, the trial court's imposition of multiple punishment for trafficking and pimping was proper because substantial evidence supports the implicit finding his course of conduct was temporally divisible. (See People v. Leonard, supra, 228 Cal.App.4th at p. 499.)
Here, unlike in People v. Dearborne (2019) 34 Cal.App.5th 250, 263-264, Jane and Melissa testified regarding events that took place over the course of approximately one week, in which Jane committed multiple acts of prostitution from which Swain derived support. But at the end of their week together, and after an overnight separation, Swain punched and stripped Jane to attempt to persuade her to commit further sex acts for his financial benefit. On this occasion, Swain was unsuccessful; Jane returned to Fresno. Swain's pimping and human trafficking offenses were temporally separated, and he had an opportunity to reflect in between them. Section 654 does not bar multiple punishment in these circumstances. (People v. Gaio, supra, 81 Cal.App.4th at p. 935.)
E.
We accept the People's concession that remand is necessary because the trial court misunderstood its discretion to strike the five-year term for the prior serious felony enhancement (§ 667, subd. (a)(1)). (See § 1385.) A week before Swain's sentencing, Senate Bill No. 1393 (2017-2018 Reg. Sess.) became effective and eliminated a statutory prohibition on striking any prior serious felony for enhancement purposes. (See former § 1385, subd. (b); Stats. 2018, ch. 1013, § 2, effective January 1, 2019.) However, despite Swain's trial counsel raising the issue in his sentencing memo, the record affirmatively shows the trial court erroneously believed imposition of the five-year term remained mandatory. We agree remand is necessary in these circumstances. (See, e.g., People v. Meloney (2003) 30 Cal.4th 1145, 1165; People v. Brown (2007) 147 Cal.App.4th 1213, 1228 ["when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing"].)
DISPOSITION
The five-year consecutive sentence on the prior serious felony enhancement is reversed, and the matter is remanded for a new sentencing hearing at which the court shall exercise its discretion under section 1385 to either strike or impose the five-year enhancement provided by section 667, subdivision (a)(1). The trial court shall also impose a six-year term for pandering (count three) that is stayed pursuant to section 654. In all other respects, the judgment is affirmed.
/s/_________
BURNS, J. We concur: /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.