Opinion
D054245 Super. Ct. No. SCD209842
10-27-2011
THE PEOPLE, Plaintiff and Respondent, v. RODNEY LYDELL TILLIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Reversed in part and remanded with instructions.
A jury convicted Rodney Lydell Tillis of human trafficking (Pen. Code, § 236.1, subd. (a)), pandering by encouraging (§ 266i, subd. (a)(2)) and sexual penetration by a foreign object (§ 289, subd. (a)(1)). Thereafter, Tillis waived a jury trial on the alleged priors and admitted two prior felony convictions, for which he had served one prior prison term. (§§ 667.5, 668, 1203, subd. (e)(4).) The trial court sentenced Tillis to a total prison term of 15 years.
All further statutory references are to the Penal Code unless otherwise specified.
Tillis filed an appeal, contending that his convictions should be reversed because of instructional errors, insufficiency of the evidence and various sentencing errors. On February 9, 2010, we issued an opinion, reversing in part and affirming in part. The Attorney General filed a petition for review, and our Supreme Court granted that petition and ordered the matter held pending its resolution of People v. Zambia (2011) 51 Cal.4th 965 (Zambia). On June 2, 2011, the Supreme Court decided Zambia and thereafter transferred this matter to us with directions to reconsider our decision in light of Zambia.
We have reviewed the parties' supplemental briefing and have reconsidered the matter as directed. We now vacate our previous opinion, and we conclude Tillis's arguments concerning instructional error and insufficiency of the evidence lack merit, but he has established that the trial court committed sentencing error by imposing an unauthorized sentence. Accordingly, we vacate the sentence and remand to the trial court for resentencing.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Offenses
In September 2007, Breanna B., a 21-year-old woman with no job, decided to try to make money by prostituting herself. Giving no thought to having a pimp, she asked a roommate to drop her off after midnight near El Cajon Boulevard in San Diego, in an area known as the "Blade," where numerous prostitutes offer their services in San Diego. Almost immediately, Breanna was picked up by a man in a Cadillac who called defendant Tillis and told him that he was bringing something "hot" for him. The man drove Breanna to a gas station where Tillis was parked.
Tillis asked Breanna where she was from, which she took to be a gang-related inquiry, and told her to get in his car. She did so because she was afraid and did not know what was going to happen. Tillis was in the driver's seat and asked Breanna if she had money. She told him she did not. He told her to take off her clothes and he began to unzip her jacket. Breanna told him she would rather do it herself and took off her jacket. Tillis told her to take off her pants, and she did. Tillis then told her to take off her underwear, and she hesitated until Tillis started pulling them down. Breanna then took off her underwear. Tillis put his hands inside Breanna's bra and told Breanna to open up her legs. She did not do so initially and tried to tell Tillis she had her period. Tillis told Breanna to shut up, stuck his hands between her legs and forcefully put two fingers inside her vagina, stating, "This pussy is going to sell." Feeling the tampon Breanna was wearing, Tillis thought it was money, but Breanna told him it was a tampon. After removing his fingers, Tillis wiped menstrual blood on Breanna's chest, pulled Breanna's hair and forced her to wipe and then lick his fingers. Breanna feared something would happen to her if she did not comply with Tillis's commands. Tillis called Breanna "bitch" and slapped her.
Tillis drove away from the gas station with Breanna in the car, telling her she was going to be his "bitch," and that she needed to make him $1,000 that night before she could go home. Breanna responded she was not going to be his bitch, and Tillis slapped her face. Tillis told Breanna he would "get my bitch to fuck you up," and he picked up his girlfriend, codefendant Rosemary Bojorquez, who was dressed like a prostitute, near El Cajon Boulevard.
Over the next 24 hours, Tillis drove Breanna and Bojorquez to El Cajon Boulevard three times and had Breanna drive to Anaheim in the Harbor Boulevard prostitution area. At each place, Tillis told Breanna and Bojorquez to "walk" the street as prostitutes and warned Breanna that if she tried to escape, he would "fuck [her] up." Breanna accompanied Bojorquez while Bojorquez serviced two customers, but Breanna engaged in no acts of prostitution. At some point, because she was trying to fit in and gain their trust, Breanna told Tillis and Bojorquez that she had prostituted before. Breanna was frightened by Tillis's behavior toward her and toward other women, and did not want to cross him.
After napping at a motel, Tillis drove Breanna and Bojorquez back to El Cajon Boulevard, where Tillis allowed Breanna to walk by herself because she was holding Bojorquez back from making money. Breanna told a stranger she had been kidnapped and obtained a ride home; the next day she told the police what happened. B. Investigation and Interview of Tillis
After Breanna identified him from a photo lineup, the police arrested Tillis at a parking lot on El Cajon Boulevard. In Tillis's car, the police found a laptop computer, computer discs, a digital camera, provocative women's clothing, and a receipt for the motel room Breanna had occupied with Tillis and Bojorquez.
During an interview at the police station, which was audiotaped, Tillis initially denied any involvement in the incident. However, after seeing a surveillance tape that showed him with Breanna, Tillis asked how much prison time he was looking at and stated he guessed he was going to jail. He also asked the vice detective interviewing him whether Breanna already had been out there prostituting, and whether she was of age. During the interview process Tillis was allowed to converse with Bojorquez and was surreptitiously taped. Bojorquez told Tillis that the police "have the evidence."
Tillis admitted that he had ordered Breanna into his car after a man named "T" brought him Breanna as a present. He continued to deny that he had sexually penetrated Breanna. Tillis stated that Breanna was on El Cajon Boulevard without knowing the rules of the game that she had "tried to jump herself into." He admitted he "laced her up," or bought her clothes for prostituting, and told her the rules of the game. He claimed it was obvious that Breanna did not know what she was doing, so he told her what she needed to know to avoid getting hurt. C. Trial Proceedings
The prosecution charged Tillis and Bojorquez with human trafficking and pandering by encouraging (§§ 236.1, subd. (a), 266i, subd. (a)(2)), and Tillis with an additional count of sexual penetration by a foreign object (§ 289, subd. (a)(1)). Bojorquez pleaded guilty to human trafficking in exchange for probation, local custody, and dismissal of the pandering charge.
At trial, the prosecution presented expert testimony about local prostitution from Lynda Oberlies, a San Diego police sergeant supervising prostitution investigations. Oberlies testified that El Cajon Boulevard and Harbor Boulevard are well known areas or "tracks" of prostitution where pimping and prostitution, known as "the game," has its own language and rules. Prostitutes are told not to look at a Black male to avoid giving the impression she is available to another pimp, and not to get into a Black male's car lest he be a pimp. Pimps call their prostitutes "bitches," and "lace them up," or buy them clothes for prostituting. "Out of pocket" means that a prostitute disrespected a pimp or walked away from the pimp, for which she could be struck or beaten. Pimps set hours and prices, take all of the money that their prostitutes make, and dole some money back to them for food or favors. Any prostitute who works without a pimp and tries to keep her money is called a "renegade." Renegades do not last long on the Blade, as they will be robbed until they are forced to get a pimp for protection.
Breanna testified to the facts surrounding the offense, and the detective who interviewed Tillis after his arrest testified to Tillis's statements during the police interview.
At the close of the prosecution's case, Tillis moved for a judgment of acquittal under section 1118.1, arguing that because he had received no compensation from Breanna, there was at most a pandering attempt, not a completed crime. The court denied the motion without prejudice.
Testifying on his own behalf, Tillis stated that when Breanna was brought to him, she had been "out there trying" to "gig on the Blade" without knowing what she was doing. Tillis said he wanted to help her, and admitted he and Bojorquez bought her clothes and taught her the rules of prostitution.
Bojorquez testified for the defense and claimed that Breanna knew what she was doing. However, Bojorquez admitted she told police Breanna was innocent and fresh in the game, and further that Breanna told her she had just started being a prostitute. On rebuttal, the prosecution presented police testimony that when Bojorquez was interviewed, she had not told the police that Breanna was experienced or knew what she was doing. Instead, at that time Bojorquez told the police: (1) Breanna looked scared; (2) Tillis told Breanna it would cost $1,000 to get free; (3) Bojorquez and Breanna discussed a lower figure that Bojorquez would try to persuade Tillis to accept; and (4) Bojorquez had spoken to Tillis about setting Breanna free, but Tillis said she had to pay him back first.
The jury returned guilty verdicts on all counts. Tillis then waived jury trial on the priors and admitted he had two prior felony convictions for which he had served one prior prison term. D. Sentencing
The trial court sentenced Tillis to prison for 15 years, including a full upper term sentence of eight years on the conviction for sexual penetration by a foreign object, which the trial court stated was the principal term; a consecutive full upper term sentence of six years on the conviction for pandering; a full upper term sentence of five years on the human trafficking conviction, which the trial court stayed under section 654; and a one-year consecutive term for the prison prior.
II
DISCUSSION
A. Tillis Has Not Established That Reversal Is Warranted Due to Instructional Error
Tillis contends each of his convictions should be reversed due to various instructional errors, which we address separately below, applying the de novo standard of review. (See People v. Cole (2004) 33 Cal.4th 1158, 1206 (Cole).)
1. The Trial Court Properly Instructed the Jury That Pandering Requires the Specific Intent to Influence Someone To "Be" a Prostitute
Tillis was charged with pandering by encouraging under section 266i, subdivision (a)(2), which criminalizes conduct that "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute." (Ibid.)
The offense was charged as "pandering by encouraging," but the information did not limit the allegations to "encouraging," as opposed to the other actions delineated in section 266i, subdivision (a)(2). In this opinion, we use the term "to influence [another person] to become a prostitute" as a shorthand term for the entire phrase "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute." (§ 266i, subd. (a)(2).)
The trial court instructed the jury that to prove Tillis guilty of the crime of pandering by encouraging under section 266i, subdivision (a)(2), the prosecution "must prove that: one, the defendant persuaded Breanna B. to be a prostitute, and, two, the defendant intended to influence Breanna B. to be a prostitute." (Italics added.) Tillis contends the trial court improperly expanded the scope of the offense of pandering by encouraging when it instructed the jury that it could find him guilty of pandering for influencing another person " 'to be' " a prostitute, "which is materially different from the statutory requirement that the defendant influence another person 'to become' a prostitute." According to Tillis, the instruction improperly permitted the jury to find him guilty of pandering "if he persuaded Breanna to continue to be a prostitute and intended to influence her to continue to be a prostitute." As authority for his argument, Tillis relies on People v. Wagner (2009) 170 Cal.App.4th 499 (Wagner),which held that pandering, as defined in section 266i, subdivision (a)(2) "does not occur when the person being 'induce[d], persuade[d], or encourage[d]' by a defendant is currently a prostitute." (Wagner, at p. 511.)
Tillis's argument is foreclosed by our Supreme Court's recent decision in Zambia, supra, 51 Cal.4th 965. Zambia expressly disapproved Wagner's holding, and 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 . . . ." (Zambia, at p. 981.) Zambia explained that "the intent and purpose behind section 266i, subdivision (a)(2) is to prohibit a person from encouraging a prostitute to work under his aegis or that of someone else, regardless whether the target being solicited is already a working prostitute." (Id. at p. 977.)
Therefore, under the pandering statute as interpreted by Zambia, the trial court properly instructed the jury that Tillis committed the crime of pandering if he "persuaded Breanna B. to be a prostitute" and "intended to influence Breanna B. to be a prostitute," regardless of whether Breanna was already working as a prostitute.
2. The Trial Court Did Not Commit Prejudicial Error in Its Instruction Regarding the Specific Intent Required for Human Trafficking
Tillis next contends that the trial court prejudicially erred by omitting the human trafficking count from the jury instruction describing the crimes that have a specific intent requirement.
To evaluate this argument, we must first examine whether human trafficking is a specific intent crime. The difference between general and specific intent crimes has been described as follows: " 'When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.' " (People v. Atkins (2001) 25 Cal.4th 76, 82, italics added.) Human trafficking is defined as "depriv[ing] or violat[ing] the personal liberty of another with the intent to effect or maintain a felony violation of Section 266 [enticement of female under age 18 for prostitution], 266h [pimping], 266i [pandering],267 [abduction of person under age 18 for prostitution], 311.4 [child pornography], or 518 [extortion], or to obtain forced labor or services." (§ 236.1, subd. (a), italics added.) Because human trafficking requires an intent to violate one of several specific statutes, it is a specific intent crime. Here, Tillis was prosecuted for human trafficking on the theory that he deprived Breanna of her liberty with the intent to commit pandering as defined in section 266i, subdivision (a)(2).
Next, we consider whether the trial court properly instructed the jury that to find Tillis guilty of human trafficking, it must find that when Tillis deprived Breanna of her liberty, he acted with the required specific intent to commit pandering. Two jury instructions are relevant to our inquiry.
First, the trial court instructed the jury pursuant to CALCRIM No. 252, on "Union of Act and Intent: General and Specific Intent Together." As Tillis correctly points out, this instruction, as given, failed to identify human trafficking as one of the counts that required a finding of specific intent. Instead, the instruction stated that for the jury to find a person guilty of human trafficking "that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act, however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime." In contrast, the jury was informed in the same instruction that to commit the crime of pandering a person "must not only intentionally commit the prohibited act, but must do so with a specific intent."
Second, in setting forth the elements of human trafficking for the jury, the trial court instructed, in relevant part, as follows: "To prove that that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant intentionally and unlawfully acted to deprive or violate the personal liberty of another; [¶] AND [¶] 2. The defendant acted with the intent to effect or maintain a felony violation of Section 266i[, subdivision ](a)(2) Pandering by Encouraging, or to obtain forced labor services."
The instruction based on CALCRIM No. 252 did not adequately inform the jury that a human trafficking conviction required a finding of specific intent, and taken alone, could even have been read by a juror to mean that a finding of specific intent was not required. If the jury read that instruction in isolation, it would have concluded that specific intent was not required for a human trafficking conviction.
We assess whether this error was prejudicial by applying the standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman) Applying that standard, we conclude that because of the additional instruction setting forth the elements of human trafficking, it is not reasonably probable that Tillis would have obtained a more favorable result in the absence of the error. Any prejudice was alleviated by the instruction defining the elements of human trafficking, which plainly stated that human trafficking required that "[t]he defendant acted with the intent to effect or maintain a felony violation of" the pandering statute. A reasonable juror reading that instruction would understand that he or she could not return a guilty verdict in the absence of a finding that Tillis acted with the specific intent to commit pandering. We therefore conclude that the trial court did not prejudicially err in instructing the jury on the type of intent necessary for a violation of the human trafficking statute.
Chapman sets forth the proper standard to assess prejudice in this case because "[u]nder established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 479-480, italics added.) Our Supreme Court has explained that where the jury may have understood conflicting instructions on intent to remove the element of specific intent from their consideration, constitutional error arises. (People v. Lee (1987) 43 Cal.3d 666, 673 [citing, among others, Sandstrom v. Montana (1979) 442 U.S. 510, 520; Francis v. Franklin (1985) 471 U.S. 307, 322]; see also People v. Maurer (1995) 32 Cal.App.4th 1121, 1128 [when "conflicting instructions on the mental state element of an alleged offense can act to remove that element from the jury's consideration, the instructions constitute a denial of federal due process"].)
3. The Trial Court Did Not Err by Failing to Instruct on the Meaning of "Substantial and Sustained Restriction of Liberty" as to the Human Trafficking Charge
Tillis did not request that the trial court instruct the jury with definitions of the statutory terms "substantial" or "sustained" restriction of liberty, which is a term that appears in the statutory definition "unlawful deprivation or violation of the personal liberty of another" in the human trafficking statute. (§ 236.1, subd. (d)(1).) Tillis contends that the trial court had a sua sponte duty to instruct the jury on those definitions, claiming the jury otherwise had no guidance on how to decide the "restriction of liberty" element in the human trafficking count. As support for this argument, Tillis points to definitions of "substantial" and "sustained" that are used in standard jury instructions relating to the offenses of kidnapping and making a criminal threat. (CALCRIM Nos. 1215, 1300; CALJIC Nos. 9.50, 9.50.1.)
"The language of a statute defining a crime or defense is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification. If the jury would have no difficulty understanding the statute without guidance, the court need do no more than instruct in statutory language." (People v. Poggi (1988) 45 Cal.3d 306, 327.) "When a word or phrase ' "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." ' " (People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).)
Nothing in the human trafficking statute, which is fairly detailed in defining certain other terms, suggests that the terms "substantial" and "sustained" are used in any technical sense peculiar to the law. (§ 236.1, subd. (a).) "A dictionary is a proper source to determine the usual and ordinary meaning of a word or phrase in a statute." (E. W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1258, fn. 2.) The dictionary definition of the term "substantial" is "not seeming or imaginary," and "sustained" means "maintained at length without interruption." (Webster's 3d New Internal Dict. (2002) pp. 2280, 2304.) Utilizing such meanings, a reasonable juror should not have difficulty contemplating what constitutes a substantial or sustained restriction of liberty.
Tillis argues that because standard jury instructions define the terms in the context of the crimes of kidnapping and making a criminal threat, clarifying instructions were required in this case. Standard jury instructions "are not themselves the law, and are not authority to establish legal propositions or precedent." (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7; People v. Salcido (2007) 149 Cal.App.4th 356, 366 [dismissing defendant's "reliance on the CALCRIM User Guide and CALCRIM No. 1400 itself as authority for his claims of error"].) The existence of instructions on defined terms, likewise, is not an indication that the same words must be defined in other contexts where the words are used as they are commonly understood. (See, e.g., People v. Solis (2001) 90 Cal.App.4th 1002, 1014-1015 [where defense did not request further definition of " 'sustained' " as used in criminal threat statute, "the court had no sua sponte obligation to define that word because it is a commonly understood word and was not being used in a technical sense peculiar to the law"].)
In the context of the crime of kidnapping, "substantial" is used to describe the distance a kidnapping victim must be moved to satisfy the asportation element of kidnapping, and means " 'a "significant amount" as contrasted with a distance that is "trivial." ' " (People v. Burney (2009) 47 Cal.4th 203, 233, fn. 8, citing People v. Morgan (2007) 42 Cal.4th 593, 606-607.)
We conclude that the terms "substantial" and "sustained" are commonly understood and have no different technical or legal meaning when used to describe the deprivation of liberty at issue in the human trafficking statute. Tillis requested no clarifying instruction. Therefore, the trial court did not err in not providing a definitional instruction. (Estrada, supra, 11 Cal.4th at p. 574.)
4. The Trial Court Did Not Prejudicially Err in Failing to Instruct on Lesser Included Offenses
Tillis contends that the trial court prejudicially erred in two separate instances by failing to instruct the jury, sua sponte, on lesser included offenses. First, Tillis contends that the trial court should have instructed the jury on simple battery and misdemeanor sexual battery as lesser included offenses of sexual penetration by a foreign object. Second, Tillis contends that the trial court should have instructed on felony false imprisonment and misdemeanor false imprisonment as lesser included offenses of human trafficking. We consider each contention in turn, after setting forth the legal standards for instructing on lesser included offenses.
a. Legal Standards for Instructing on Lesser Included Offenses
The trial court has an obligation to instruct sua sponte on lesser included offenses " 'when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)An offense is a lesser included offense if "either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117 (Birks).)
A trial court errs "if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (Breverman, supra, 19 Cal.4th at p. 162.) No instruction is required, however, "on theories that have no such evidentiary support." (Ibid.)Consequently, an instruction on a lesser included offense is not required "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime." (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5 (Barton).)
b. The Trial Court Did Not Prejudicially Err in Failing to Instruct on Lesser Included Offenses to Sexual Penetration by a Foreign Object
Unlawful penetration with a foreign object is defined, in pertinent part, as "an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim." (§ 289, subd. (a)(1).) "Sexual penetration" is defined to include the "act of causing the penetration, however slight, of the genital or anal opening of any person . . . for the purpose of sexual arousal, gratification, or abuse by any foreign object." (§ 289, subd. (k)(1).) Any " '[f]oreign object,' . . . include[s] any part of the body . . . ." (§ 289, subd. (k)(2).)
Simple battery is defined as "any willful and unlawful use of force or violence upon the person of another." (§ 242; People v. Rocha (1971) 3 Cal.3d 893, 899.) Sexual penetration by a foreign object can be performed with, or without, the use of force or violence. (§ 289, subd. (a)(1) [sexual penetration may be accomplished "by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim"].) Therefore simple battery is not a lesser included offense of sexual penetration by foreign object. (Birks, supra, 19 Cal.4th at p. 117 [offense is lesser included offense when greater offense cannot be committed without also committing the lesser].)
Misdemeanor sexual battery is defined, in pertinent part, as the "touch[ing of] an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse." (§ 243.4, subd. (e)(1).) The word " 'touches' means physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense or through the clothing of the victim." (Id., subd. (e)(2).) The act of touching criminalized by section 243.4, subdivision (e)(1), therefore, must be performed by the person committing the offense and not by a foreign object other than part of that person's body (clothed or not). (Id., subd. (e)(1), (2).)
Comparing these elements, the Attorney General contends that misdemeanor sexual battery cannot be committed without the defendant actually touching the victim, unlike unlawful penetration with a foreign object. We agree. Sexual penetration by a foreign object can be committed by forcing a victim to penetrate him or herself. (People v. Keeney (1994) 24 Cal.App.4th 886, 889; see § 289, subd. (k)(1) [sexual penetration defined as "the act of causing the penetration, however slight, of the genital or anal opening of any person"].) Misdemeanor sexual battery, however, requires a touching by the perpetrator. (§ 243.4, subd. (e)(1), (2).) Therefore, one can commit sexual penetration by a foreign object without also committing misdemeanor sexual battery, and misdemeanor sexual battery is not a lesser included offense. (Birks, supra, 19 Cal.4th at p. 117.)
Even assuming misdemeanor sexual battery is a lesser included offense of sexual penetration with a foreign object, the trial court did not err in failing to instruct on misdemeanor sexual battery because the evidence presented at trial did not support the instruction. If the jury believed Breanna, the elements of sexual penetration under section 289, subdivision (a) were established. On the other hand, Tillis maintained the touching never happened, and if his version of events were credited, he would be entitled to acquittal of any crime. If Tillis was guilty at all, he was guilty of sexual penetration. "A trial court need not . . . instruct on lesser included offenses when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime . . . ." (Barton, supra, 12 Cal.4th at p. 196, fn. 5.) We therefore conclude that the trial court did not err by not instructing on battery or misdemeanor sexual battery as lesser included offenses.
c. The Trial Court Did Not Prejudicially Err in Failing to Instruct on Lesser Included Offenses to Human Trafficking
We next consider whether the trial court prejudicially erred in failing to instruct on felony or misdemeanor false imprisonment as lesser included offenses of human trafficking.
We begin our analysis by examining the elements required to establish each offense. The offense of human trafficking requires the jury to find that the defendant (1) deprived or violated the personal liberty of another, (2) with the intent to obtain forced labor or services or to effect or maintain a felony violation of certain statutes, including, as relevant here, section 266i, which criminalizes pandering. (§ 236.1, subd. (a).) The human trafficking statute defines the term "unlawful deprivation or violation of the personal liberty of another" to include "substantial and sustained restriction of another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out." (§ 236.1, subd. (d)(1).)
False imprisonment is defined as "the unlawful violation of the personal liberty of another." (§ 236.) False imprisonment becomes a felony if "effected by violence, menace, fraud, or deceit." (§ 237, subd. (a).)
Focusing on these statutory elements, we conclude that felony false imprisonment is not a lesser included offense of human trafficking because it is possible to commit human trafficking without also committing felony false imprisonment. (Birks, supra, 19 Cal.4th at p. 117 [an offense is a lesser included offense if the greater cannot be committed without also committing the lesser].) A defendant may commit human trafficking by means of restricting a victim's liberty through coercion or duress and not also commit felony false imprisonment. This is because depriving a victim's liberty by means of coercion or duress are not included in the definition of felony false imprisonment, which can be committed only if the deprivation of liberty is effected by "violence, menace, fraud, or deceit." (§ 237, subd. (a).)
As the Attorney General concedes, however, misdemeanor false imprisonment is a lesser included offense of human trafficking. A defendant who commits human trafficking necessarily commits misdemeanor false imprisonment because he commits deprives or violates the personal liberty of another (§ 236.1, subd. (a)), which fulfills the sole element of the crime of misdemeanor false imprisonment that the defendant commit an "unlawful violation of the personal liberty of another" (§ 236).
Assuming, without deciding, that the trial court erred in failing to instruct with the lesser included offense of misdemeanor false imprisonment, the jury's verdict on the pandering count establishes that any such error was harmless under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). " 'Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.' " (People v. Chatman (2006) 38 Cal.4th 344, 392.)
"[E]rror in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson. A conviction of the charged offense may be reversed in consequence of this form of error only if, 'after an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, 46 Cal.2d 818, 836)." (Breverman, supra, 19 Cal.4th at p. 178.)
The principal distinction between misdemeanor false imprisonment and human trafficking as charged in this case is that human trafficking also required a finding that Tillis deprived Breanna of her liberty with the intent to effect or maintain a violation of the pandering statute. However, because Tillis was also charged with pandering arising out of the same course of events as the human trafficking count, and the jury returned a guilty verdict on the pandering count, the jury made the necessary finding to elevate a misdemeanor false imprisonment verdict to a human trafficking verdict, namely that Tillis acted with the specific intent to violate the pandering statute. Therefore it is not reasonably probable that Tillis would have obtained a more favorable result had the jury been instructed with the lesser included offense of misdemeanor false imprisonment. Any instructional error was harmless.
Had we concluded that felony false imprisonment was a lesser included offense of human trafficking, we would have applied the same harmless error analysis to conclude that an error in failing to instruct on felony false imprisonment was harmless.
B. Substantial Evidence Supports Tillis's Convictions for Pandering, Human Trafficking and Sexual Penetration by a Foreign Object
Tillis contends there was insufficient evidence supporting his convictions for pandering (§ 266i, subd. (a)(2)), human trafficking (§ 236.1) and sexual penetration by a foreign object (§ 289, subd. (a)(1)). We therefore review the evidence in support of each count after setting forth the applicable standard of review.
1. Standard of Review
When determining whether the evidence is sufficient to sustain a criminal conviction, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) We presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears " 'that upon no hypothesis . . . is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) " 'If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.' " (People v. Love (1960) 53 Cal.2d 843, 850-851, italics added.)
2. Substantial Evidence Supports Tillis's Conviction for Pandering
As our Supreme Court explained in Zambia, supra, 51 Cal.4th 965, a defendant is guilty of pandering by encouraging in violation of section 266i, subdivision (a)(2) when he "encourg[es] a prostitute to work under his aegis or that of someone else, regardless whether the target being solicited is already a working prostitute." (Zambia, at p. 977.) Pandering by encouraging is a specific intent crime in that "[i]ts commission requires that a defendant intends to persuade or otherwise influence the target 'to become a prostitute' as that phrase has been interpreted [in Zambia]." (Id. at p. 980.) Section 266i, subdivision (a)(2) is violated by the "knowing and purposeful conduct of any person seeking to encourage 'another person' to work with the panderer or another pimp in plying the prostitution trade." (Zambia, at p. 980.) Further, as set forth in the statutory language, the defendant must use "promises, threats, violence, or . . . any device or scheme" in encouraging the victim to work as a prostitute. (§ 266i, subd. (a)(2).)
Applying this definition of pandering, we conclude that substantial evidence supports Tillis's conviction. The jury heard evidence that Tillis used threats, violence and promises to control Breanna and have her walk the streets as a prostitute. Tillis forcefully penetrated Breanna's vagina; pulled her hair; slapped her and threatened to have his girlfriend "fuck [her] up"; made his own threats to "fuck [her] up" if she escaped; and made a promise that she would be able to go home if she made him $1,000. These facts are sufficient to support a finding that, in violation of section 266i, subdivision (a)(2), using promises, threats and violence, Tillis acted with the specific intent to encourage Breanna to work for him as a prostitute.
Likewise, based on our review of the evidence at the close of the prosecution's case, there was substantial evidence supporting the elements of pandering by encouraging. Therefore, the trial court did not err in denying Tillis's section 1118.1 motion for acquittal. (Cole, supra, 33 Cal.4th at pp. 1212-1213 [§ 1118.1 motion made at the close of the prosecution's case-in-chief is determined by sufficiency of the evidence as it stood at that point under same standard as review of sufficiency of the evidence to support a conviction].)
3. Substantial Evidence Supports Tillis's Conviction for Human Trafficking
Tillis contends his conviction for human trafficking is not supported by substantial evidence for a variety of reasons, each of which we address separately below.
a. The Federal "Commercial Sex Act" Requirement Is Not an Element of the Human Trafficking Offense
Tillis first contends his human trafficking conviction was not supported by evidence that Breanna actually completed a commercial sex act for remuneration. As we will explain, we reject Tillis's argument.
As we have explained, the elements of the crime of human trafficking are set forth in section 236.1, subdivision (a), which states: "Any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of Section 266, 266h, 266i, 267, 311.4, or 518, or to obtain forced labor or services is guilty of human trafficking." Tillis attempts to import an additional element into the statute, which would require that the defendant induce a commercial sex act, either by force, fraud or coercion, or on a minor. For this statutory interpretation, Tillis relies on section 236.1, subdivision (f), which states: "The Legislature finds that the definition of human trafficking in this section is equivalent to the federal definition of a severe form of trafficking found in Section 7102(8) of Title 22 of the United States Code." The federal statute, in turn, defines severe human trafficking, in relevant part, as "sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age." (22 U.S.C. § 7102(8)(A).) For the purposes of the federal statute, a "commercial sex act" is defined as "any sex act on account of which anything of value is given to or received by any person." (22 U.S.C. § 7102(3).)
We reject Tillis's attempt to import an additional element into the statute because it is contrary to the statute's plain language. Nothing in section 236.1, subdivision (a) indicates that a defendant violates that provision only if he deprives the victim of liberty while inducing a commercial sex act. Instead, the statute plainly states that a defendant is guilty of human trafficking if he deprives a victim of liberty with the intent to violate one of several statutes, or to obtain forced labor or services.
Even were we to import the federal definition of severe human trafficking into section 236.1, subdivision (a) and require a finding that Tillis used force, fraud, or coercion to induce a commercial sex act, substantial evidence supports such a finding. The evidence supports a finding that Tillis used force and violence on Breanna, requiring Breanna to offer herself for prostitution on the streets, with the intent that Breanna would engage in a sex act if she found a paying customer. That conduct constitutes inducement of a commercial sex act.
In connection with our substantial evidence analysis, we note that the jury was instructed according to Tillis's theory that the crime of human trafficking is defined as the inducement of a commercial sex act induced by force, fraud or coercion.
We see no indication in the federal definition of "severe human trafficking" that the commercial sex act must have actually been completed. Instead, the federal definition focuses on the act of inducing. Here, the evidence supports a finding that Tillis completed all of the acts necessary to induce a commercial sex act. It appears that the only reason a commercial sex act was not completed is that Breanna managed to escape from Tillis while she was soliciting customers at Tillis's direction.
b. Substantial Evidence Showed Tillis Subjected Breanna to a Substantial and Sustained Restriction of Her Liberty Through Violence, Menace or Threat of Unlawful Injury
Section 236.1, subdivision (d)(1) defines the restriction of liberty required for conviction of the crime of human trafficking as including a "substantial and sustained restriction of another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out." (Ibid.)
Tillis contends insufficient evidence supports his conviction for human trafficking because the prosecution failed to show he used (a) violence, menace, or threat of unlawful injury, or (b) coercion or duress, to effect a (c) substantial and sustained restriction of Breanna's liberty, (d) with intent to effect a violation of the pandering law.
At the outset, we note that the definition in section 236.1, subdivision (d)(1) does not purport to set forth the only circumstances in which a defendant may unlawfully deprive or violate a victim's personal liberty. Instead, the statute states that "unlawful deprivation or violation of the personal liberty of another includes" the conduct described therein. (Ibid., italics added.) In arguing that substantial evidence does not support the human trafficking conviction, Tillis makes the unwarranted assumption that he could be found guilty only if the definition set forth in section 236.1, subdivision (d)(1) was satisfied. Nevertheless, as we will explain, even assuming, as Tillis does, that a finding satisfying the definition in subdivision (d)(1) is required, Tillis's challenge to the sufficiency of the evidence is without merit.
i. Substantial Evidence Supports a Finding That Tillis Employed Menace and Violence
Neither the human trafficking statute, nor any cases decided under it, define what type of "menace" or "violence" suffices to prove an unlawful deprivation or violation of personal liberty. (See § 236.1, subd. (d)(1).) In such circumstances, we turn to prior judicial interpretations of the same words in analogous contexts. It is a well-established principle of statutory construction that when enacting statutes, the Legislature is presumed to be aware of, and is presumed to intend to employ, the well-settled meaning of such words, unless it expressly states otherwise. (Estate of Sax (1989) 214 Cal.App.3d 1300, 1304.) An analogous context in which the terms "menace" and "violence" are interpreted is in the case law involving felony false imprisonment. (See § 237, subd. (a) [false imprisonment is a felony if achieved "by violence, menace, fraud, or deceit"].) We therefore examine that case law here.
The trial court instructed the jury that "menace" means "a verbal or physical threat of harm. The threat of harm must be express or implied." This instruction appropriately defined "menace" in a way that is consistent with the law of false imprisonment. (People v. Reed (2000) 78 Cal.App.4th 274, 280; accord, People v. Wardell (2008) 162 Cal.App.4th 1484, 1490.) The trial court did not define violence. However, in false imprisonment cases, the term "violence" is defined in accordance with its dictionary definitions as an " '[u]njust or unwarranted exercise of force,' " and " 'exertion of any physical force so as to injure or abuse.' " (People v. Babich (1993) 14 Cal.App.4th 801, 807, fn. 2; see Webster's 3d New Internat. Dict., supra, p. 2554 ["violence" defined as "exertion of any physical force so as to injure or abuse"].)
Here, Tillis forcefully inserted his fingers into Breanna's vagina, pulled Breanna's hair and slapped her. He stated Breanna was going to make him money and be his prostitute, and when she balked, said his girlfriend would "fuck [her] up." Tillis later warned Breanna not to escape or he would "fuck [her] up." Tillis had his girlfriend stay with Breanna on the street to guard her and make sure she did not go home or contact the police. Breanna testified she did not run away from Tillis or Bojorquez because she was afraid of what Tillis might do. We conclude from this evidence that the jury could reasonably find that Tillis restricted Breanna's liberty by using menace (including express threats) and violence.
Tillis's reliance on People v. Matian (1995) 35 Cal.App.4th 480, 484, also a false imprisonment case, is misplaced. In Matian, after sexually assaulting his victim, the defendant kept her in a chair in a nearby room by glaring at her and getting up to approach her when she tried to leave. (Id. at p. 485.) The Matian court concluded the evidence did not support felony false imprisonment because the defendant did not use a deadly weapon or threats, apart from his earlier sexual assaults and grabbing the victim's arm to restrain her. (Id. at pp. 486-487.) Matian is inapposite, because here, unlike Matian, the jury could infer that Tillis used violence apart from his sexual penetration — including slapping and pulling her hair — to restrict Breanna's liberty by intimidating her. Tillis also made express threats to commit future violence against Breanna if she left before making him $1,000. Accordingly, Matian does not support a conclusion that there was insufficient evidence of violence and menace in this case.
Because the evidence supports a finding that Tillis used violence and menace, we need not determine whether he also used coercion and duress to restrain Breanna's liberty.
ii. Substantial Evidence Supported a Finding That Tillis Restricted Breanna's Liberty in a Substantial and Sustained Way
Tillis contends the evidence was insufficient to support his human trafficking conviction because Breanna did not suffer a "substantial and sustained" restriction of her liberty. He argues that Breanna "willingly" walked the streets with Bojorquez and drove Tillis's car to the Harbor Boulevard prostitution area while he slept. We disagree. The evidence was sufficient for the jury to conclude Breanna accompanied Tillis and Bojorquez only because Tillis threatened to hurt her if she did not comply, and the restriction imposed on Breanna lasted nearly 24 hours, which was sufficient for the jury to find it was "substantial and sustained." (See, e.g., People v. Allen (1995) 33 Cal.App.4th 1149, 1150-1151, 1156 [15 minutes of fear sufficient to find " 'sustained fear' " required for criminal threat].)
4. Substantial Evidence Supports Tillis's Conviction for Sexual Penetration by a Foreign Object
Tillis next contends his conviction for sexual penetration by a foreign object must be reversed because there was insufficient evidence supporting the elements of the crime, namely, that the sexual penetration by a foreign object was accomplished: (1) against Breanna's will; (2) by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury; and (3) for the purpose of sexual arousal, gratification, or abuse. (§ 289, subd. (a)(1).) As we will explain, we disagree.
a. Substantial Evidence Supports the Jury's Determination That Tillis Accomplished Sexual Penetration by a Foreign Object Against Breanna's Will
Tillis contends there was no substantial evidence that he put his fingers into Breanna's vagina against her will, because she did not resist and because she "had come to him as a working prostitute and made no statements or other indications that she did not want to do what he asked." Based on his position that Breanna had implicitly consented to his sexual penetration of her by "working as a prostitute," Tillis argues that Breanna was required to "convey to the defendant her lack of consent or withdrawal of consent" in order to demonstrate the act was done against her will. We disagree.
The evidence showed Breanna was initially taken to Tillis against her will, causing her to think she was going to be raped. When Tillis told her to get into the car, Breanna did so only because she was afraid and did not know what was going to happen. Tillis asked Breanna for money and when she told him she did not have any, he ordered her to take her clothes off. When Breanna hesitated, Tillis swore at her and began doing it himself. Because Breanna was scared and did not want Tillis touching her, she complied. Tillis then told her to open her legs; she refused and tried to tell him she was menstruating. Tillis told Breanna to shut up, and stuck his hand between her legs and his fingers forcefully into her vagina. Nothing in the evidence permits the inference that Breanna impliedly consented to Tillis's sexual penetration.
Because there is no evidence of any initial consent in this case, the cases upon which Tillis relies are factually distinguishable. (In re Jose P. (2005) 131 Cal.App.4th 110, 117 [involving victim who consensually engaged in foreplay]; In re John Z. (2003) 29 Cal.4th 756, 760 [analysis assumed the victim tacitly consented until after penetration].) Here, Tillis did not offer to pay Breanna as a prostitute, and there was no evidence she participated willingly or did anything but resist his attempts to undress or penetrate her. We conclude there was sufficient evidence that Tillis sexually penetrated Breanna against her will.
b. Substantial Evidence Supports the Jury's Determination Tillis Accomplished Sexual Penetration by a Foreign Object with Force
The degree of force required to show sexual penetration by a foreign object is the same as that required in rape cases — force sufficient to overcome the victim's will. (In re Asencio (2008) 166 Cal.App.4th 1195, 1204-1205 [the requisite amount of force for a rape conviction is the amount sufficient to overcome the victim's will].) As our Supreme Court has held, the kind of physical force applied is immaterial and may consist of " ' " 'taking of indecent liberties with a woman, or laying hold of and kissing her against her will.' " ' " (People v. Griffin (2004) 33 Cal.4th 1015, 1024 ["under the modern rape statute, the jury no longer evaluates the element of force in terms of whether it physically prevents the victim from resisting or thwarting the attack" (id. at p. 1025)].)
Using this standard, the record contains substantial evidence upon which a jury reasonably could find Tillis forcibly penetrated Breanna. (In re Asencio, supra, 166 Cal.App.4th at pp. 1204-1205 [sexual penetration committed by force in violation of § 289, subd. (a)(1) does not require physical force greater than that inherent in the act of sexual penetration].) Although Breanna testified the penetration did not hurt — which Tillis contends shows insufficient evidence of force — she also testified Tillis just stuck his hand between her legs and forcefully into her vagina. If credited, Breanna's testimony is sufficient for a reasonable jury to find that Tillis used force to overcome Breanna's will and accomplish the act of sexual penetration with a foreign object. (See People v. Young (2005) 34 Cal.4th 1149, 1181 ["unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction"].)
c. Substantial Evidence Supports the Jury's Finding Tillis Performed the Sexual Penetration by a Foreign Object by Duress
"Duress" is the " 'direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.' " (People v. Leal (2004) 33 Cal.4th 999, 1004 (Leal), italics omitted, quoting People v. Pitmon (1985) 170 Cal.App.3d 38, 50; see also People v. Senior (1992) 3 Cal.App.4th 765, 775.) Duress can arise from physical control or psychological coercion under various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. (Pitmon, at p. 50, fn. 9 & p. 51 [noting also that duress need not be accompanied by force].)
Here, the jury had before it multiple pieces of evidence pointing to duress. Breanna was a young and naive woman, confronted by an older male who was apparently a pimp, who swore at her and told her to shut up when she resisted his orders to take off her clothes and spread her legs and when she tried to tell him she was menstruating. We conclude this evidence is sufficient for a rational juror to find a reasonable person in Breanna's position would have been coerced to acquiesce in an act to which she otherwise would not have submitted. (Leal, supra, 33 Cal.4th at p. 1004.) While Tillis claims in his reply brief that there was no "apparent protest," the pertinent question is not whether Breanna protested but whether the evidence showed a threat " 'of force, violence, danger, hardship or retribution' " by Tillis sufficient for the jury to conclude Breanna acted under duress. (Ibid., italics omitted.) We conclude it does.
This evidence shows an implied threat of danger or retribution, and therefore distinguishes this case from People v. Espinoza (2002) 95 Cal.App.4th 1287, upon which Tillis relies. In Espinoza, there was insufficient evidence of duress used to accomplish a series of molestations of a stepdaughter, where the perpetrator never threatened or said anything with the exception of two expressions of love to the victim during the acts. (Id. at p. 1295.) Unlike Breanna, the victim in Espinoza "made no oral or physical response to his acts." (Id. at p. 1320.)
Having concluded that the evidence is sufficient to establish that Tillis accomplished the sexual penetration by a foreign object against Breanna's will and by means of force or duress, we next determine whether Tillis's penetration of Breanna meets the final element of sexual penetration by a foreign object, namely, that it was accomplished for the purpose of sexual abuse.
d. Substantial Evidence Supports the Jury's Finding Tillis Performed the Sexual Penetration by a Foreign Object for the Purpose of Sexual Abuse
The offense of sexual penetration by a foreign objection must be accomplished "for the purpose of sexual arousal, gratification, or abuse." (§ 289, subds. (k)(1) & (a)(1).) In this case, the prosecution argued Tillis committed the penetration of Breanna's vagina for the purpose of sexual abuse, specifically, to cause Breanna "pain, discomfort and shame."
The requirement that the penetration be for the purpose of "sexual abuse" is met where a defendant intends to cause discomfort, injury or pain by mistreatment directed to a victim's sexual parts. (People v. White (1986) 179 Cal.App.3d 193, 203-206 (White).)In the related context of sexual battery, conduct intended to insult or humiliate or intimidate a person is also "sexual abuse." (In re Shannon T. (2006) 144 Cal.App.4th 618, 622 (Shannon T.).)
The evidence showed Tillis forced Breanna to strip and spread her legs, swore at her, told her to shut up, pulled her hair, called her "bitch," smeared her menstrual blood on her chest, and forced her to wipe and then lick his fingers. Based on this evidence, a reasonable juror could find Tillis performed the sexual penetration to insult, humiliate or intimidate Breanna.
Tillis contends that sexual abuse requires acts that are intended to physically hurt or injure the victim, and that he did not act with such intent. (Citing White, supra, 179 Cal.App.3d 193.) To the contrary, White held that " '[t]o "abuse" someone is to hurt them by treating them badly, or to cause pain or injury through mistreatment. When such mistreatment is directed to a victim's sexual or "private" parts, the resulting conduct would certainly be considered sexual abuse.' " (Id. at p. 205, italics added.) As later explained in Shannon T., sexual abuse also occurs when sexual mistreatment is intended to cause psychological pain or injury, i.e., to insult, humiliate or intimidate. (Shannon T., supra, 144 Cal.App.4th at p. 622.) Likewise, here, we conclude the evidence supports an inference Tillis intended to mistreat, intimidate and humiliate Breanna and committed the act for the purpose of sexual abuse.
White involved the defendant's contention that "sexual abuse," like sexual arousal or gratification, required a sexual motive. The court rejected this argument, stating that the purpose of sexual abuse was to cause pain or injury, not lewdness. (White, supra, 179 Cal.App.3d at p. 205.) White did not, however, state that no abuse could be found in the absence of resulting pain or injury.
Tillis also argues that he was just looking for money. We disagree that the evidence supports an inference that Tillis's only intent was to search for money. His actions before and after the actual penetration bespeak an intent to insult, humiliate or intimidate Breanna, and the jury was entitled to consider those actions as circumstantial evidence of his intent to abuse. (E.g., People v. Smith (2009) 178 Cal.App.4th 475, 479 ["Because intent can seldom be proven by direct evidence, it typically is inferred from the circumstances."].)
We conclude Tillis's challenges to the sufficiency of the evidence lack merit, and next turn to his claims of sentencing error. C. The Trial Court Imposed an Unauthorized Sentence
Finally, we consider Tillis's contention that the trial court made errors at sentencing.
Tillis contends that the trial court erred in imposing an upper term sentence under section 667.6, subdivision (c) on each of the three counts of his conviction after designating the sexual penetration count as the principal term. Tillis's contention has merit.
Under the determinate sentencing scheme set forth in section 1170.1, the trial court selects a principal term, for which it imposes a full term sentence, and on the remaining subordinate terms it imposes one-third of the middle term sentence. (§ 1170.1, subd. (a).) Section 667.6, subdivision (c) provides an exception for the sentencing of certain sex crimes. It states: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. A term may be imposed consecutively pursuant to this subdivision if a person is convicted of at least one offense specified in subdivision (e). If the term is imposed consecutively pursuant to this subdivision, it shall be served consecutively to any other term of imprisonment, and shall commence from the time the person otherwise would have been released from imprisonment. The term shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to that term shall not be merged therein but shall commence at the time the person otherwise would have been released from prison." (Ibid.)
With respect to the three crimes of which Tillis was convicted, the crime of penetration by a foreign object in violation of section 289, subdivision (a)(1) is included in the offenses specified in section 667.6, subdivision (e). The crimes of pandering and human trafficking are not.
Our Supreme Court has explained that "if a defendant is convicted of both sex offenses and nonsex offenses, a trial court may properly designate the longest nonsex offense as the principal term and may treat all of the sex offenses under section 667.6, subdivision (c)." (People v. Belmontes (1983) 34 Cal.3d 335, 346 (Belmontes).) However,the statutory language is clear that when a defendant is convicted of both an enumerated sex offense and nonsex offenses, only the enumerated sex offense is given a full consecutive term when it would otherwise have been given a one-third term under section 1170.1, subdivision (a). A conviction of an enumerated sex offense "trigger[s] the sentencing court's discretion under . . . section 667.6, subdivision (c), to impose a full, consecutive sentence for that conviction." (People v. Jones (1988) 46 Cal.3d 585, 589, italics added.) Therefore, unless it is designated as the principal term, a nonsex offense may not be given a full term sentence when the court sentences pursuant to section 667.6, subdivision (c).
Two other alternatives, when applicable, are that the trial court could (1) "choose to have a sex offense serve as the principal term if it carried the longest sentence and to treat all other offenses — regardless of whether they include sex offenses listed in section 667.6, subdivision (c) — as subordinate terms under section 1170.1" or (2) "choose to treat some of the sex offenses under the principal/subordinate scheme of section 1170.1, while imposing fully consecutive sentences on others under section 667.6, subdivision (c)." (Belmontes, supra, 34 Cal.3d at p. 346.)
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Here, the trial court chose the sexual penetration count as the principal term and imposed an upper term sentence of eight years. It then stated that, pursuant to section 667.6, subdivision (c), it was imposing a full upper term of six years for the pandering count and a full upper term of five years on the human trafficking count. It stayed the sentence on the human trafficking count and ordered that the sentence on the sexual penetration count and the pandering count be served consecutively.
Based on the terms of sections 667.6, subdivision (a) and 1170.1, subdivision (a), that sentence was unauthorized. As we have explained, an offense, such as pandering or human trafficking, that is not enumerated in section 667.6, subdivision (e), may not be given a full term sentence unless it is designated as the principal term under section 1170.1. However, the trial court did not designate the pandering count or the human trafficking count as the principal term. Instead, the pandering count and the human trafficking counts were treated as subordinate terms to the sexual penetration count, which the trial court designated as the principal term. Therefore, the trial court was not authorized to impose a full term sentence on the pandering or the human trafficking counts when neither of them were designated as the principal term.
The Attorney General points out that the trial court could have achieved the same result — i.e., requiring Tillis to serve full consecutive terms on both the pandering and the sexual penetration counts — by designating the pandering count as the principal term, for which it could impose a full term sentence, and then imposing a full term consecutive sentence on the sexual penetration count pursuant to section 667.6, subdivision (c). According to the Attorney General, instead of reversing the judgment based on the unauthorized sentence, we should divine that the trial court would have designated the pandering count as the principal term if it had realized its error, and we should therefore correct the sentence rather than reversing and remanding. As we will explain, we will not do so.
For one thing, the Attorney General's suggestion that we correct the sentence by designating the pandering count as the principal term does not address the trial court's additional error of imposing an unauthorized full term sentence on the human trafficking count, when that count was not selected as the principal term. Although that sentence was stayed pursuant to section 654, its imposition was nevertheless unauthorized and must be reversed.
In addition, we decline to correct the unauthorized sentence because Tillis also challenges his sentence on the ground that the trial court failed to state the reasons for its sentencing choices. Although we need not, and do not, reach the issue of whether the trial court prejudicially erred in that regard, Tillis does advance a substantial argument, and the Attorney General tacitly concedes the trial court's failure to state reasons was error, although harmless.
Therefore, we will reverse the judgment and remand for resentencing so that the trial court may impose an authorized sentence and adequately state the reasons for its sentencing choices. (See Cal. Rules of Court, rule 4.406(b) [requiring statement of reason for sentencing choices]; Belmontes, supra, 34 Cal.3d at pp. 347-349 [trial court is required to state reasons for choosing to sentence under § 667.6, subd. (c)]; People v. Pierce (1995) 40 Cal.App.4th 1317, 1320 ["Incorporating by reference the enumeration of aggravating and mitigating factors in a probation report, as was done here, does not satisfy the requirement of a statement of reasons."].)
DISPOSITION
The sentence is vacated and this matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR:
MCCONNELL, P. J.
NARES, J.