Opinion
D074632
04-13-2020
THE PEOPLE, Plaintiff and Respondent, v. OSCAR C. WILLIAMS, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Sharon L. Rhodes and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275584) APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Sharon L. Rhodes and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Oscar C. Williams appeals from a judgment entered after a jury convicted him of one count of pandering. On appeal, Williams argues that there was insufficient evidence to sustain his conviction on the pandering charge and that the trial court erred in admitting certain evidence at trial.
Williams first contends that there was insufficient evidence that he committed the offense of pandering. He concedes that there may have been "some minimal evidence of appellant encouraging Heather's lifestyle in one form or another," but he asserts that there is insufficient evidence to establish that he engaged in conduct amounting to "violence, inducement, promise, or scheme," as the pandering statute requires.
Penal Code section 266i, subdivision (a)(2), the provision under which Williams was prosecuted, provides that an individual is guilty of pandering when that person "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute."
With respect to Williams's evidentiary arguments, he claims that the trial court erred in allowing the jury to view a rap video that he made in which he raps about being a pimp and depicts himself as such. Williams also claims that the trial court erred in admitting in evidence for its truth a text message sent to Williams by Heather B., the prostitute whom he was convicted of pandering. Williams argues that the text message was hearsay and was inadmissible for the purpose of establishing the woman's state of mind under that exception to the hearsay rule.
We conclude that there is sufficient evidence to support Williams's conviction for pandering. With respect to the evidentiary challenges that Williams raises on appeal, we conclude that the trial court did not err in admitting the rap video and that Williams forfeited his contention on appeal that the video was more prejudicial than probative by failing to adequately raise this ground as a basis for excluding or limiting the use of the video at trial. However, even if Williams had sufficiently raised the issue, we would conclude that the trial court did not err in admitting the video. With respect to the text message at issue, we conclude that even if the trial court erred in allowing the jury to consider that text message for its truth, in the context of the trial, this single error would not warrant reversal of the conviction.
We therefore affirm the judgment of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecution case
On February 7, 2018, undercover vice detective Joshua Zoller responded to an advertisement for prostitution on the Web site "Backpage.com." Detective Zoller negotiated with the advertiser by text for a 30-minute sex act in exchange for $200. The advertiser gave the detective the address of a hotel on Sports Arena Boulevard. Detective Zoller's surveillance team went to the parking lot of the hotel to look for a possible pimp. Once the surveillance team was in place, Detective Zoller drove to the hotel, contacted the person who had placed the advertisement, and received a room number.
When Detective Zoller went to that room, Heather B. answered the door and escorted him into the room. After Detective Zoller reconfirmed the negotiated deal, he gave Heather B. $200, and she gave him a condom. Detective Zoller then "gave the bust signal" to his surveillance team, and members of the team knocked on the hotel room door. At that point, Detective Zoller, still acting in character, asked Heather B., "You got a pimp?"; she replied, "No."
The detective testified that, in his experience, a prostitute would not typically inform a "John" that she has a pimp because "if there is a pimp at the door, he's there to rob [the John] or take the money or there's going to be some sort of altercation," and, thus, "[g]enerally, the pimps and prostitutes, they don't want you to know there's another male involved, more a security reason." The detective explained that his team is usually not aware whether "there [i]s a pimp involved" until "the deal is done." Then, in the course of interviewing the prostitute or observing the premises and parking lots nearby, officers will find a pimp who was involved with the prostitute.
Someone on the surveillance team announced their presence and indicated that they were with the San Diego Police. Heather B. opened the door. Members of the surveillance team detained her.
Heather B. began to cry and made statements to the effect that she would probably have to go to jail. Heather B. indicated to officers that she had engaged in prostitution for more than a year in multiple states. She also indicated that she had been borrowing and driving Williams's car. The officers issued Heather B. a ticket for prostitution.
Twenty minutes later, Williams pulled into the parking lot of the hotel driving a black Mercedes. Williams did not enter the hotel. Instead, he walked over to a silver BMW that was in the parking lot, looked inside, and then returned to the Mercedes. Officers detained Williams and searched the Mercedes.
Inside of Williams's Mercedes, officers found a room key to the hotel, marijuana, and fake money. Officers determined that the BMW was registered to Williams. The keys to that vehicle were found in Heather B.'s hotel room.
Detectives testified to explain certain aspects of the pimping and prostituting culture and relate their knowledge and experience to evidence gathered in this case. One detective testified that pimps target women who "haven't had a good life" and those who are already working as prostitutes because it requires "less work for the pimp to teach them how to be in the life."
That same detective testified that a pimp-prostitute relationship often "start[s] out kind" and with "[a] lot of promises, a lot of persuasion to get to what the individual wants." The detective has seen pimps promise prostitutes that "they are going to make a lot of money together," and "[t]he love word comes into effect a lot." The detective testified, "But in almost every case I have seen, it's not love. It's just a fact of getting money." And in many instances, the pimp "has a girlfriend on the side [that] the prostitute doesn't know about." Pimps typically offer prostitutes security, safety, and surveillance, and the "feeling of being wanted in her mind and a relationship." In many instances, the detective has found "that prostitutes end up feeling strong feelings for their pimps" because "the pimp plays a role of boyfriend, and they're [the prostitutes] feeling loved and wanted, and they haven't had that before." Sometimes pimps take their prostitutes "out to dinner" or "buy [them] clothes" to "make the prostitute feel like she's wanted."
Pimps, on the other hand, tend to get money and "[n]otoriety in the world" out of their relationship with a prostitute. Typically, a prostitute who has a pimp gives the money that she makes to the pimp. In return, he will pay her what he decides she should get, which tends to be enough to cover her living expenses.
Often, when prostitutes are questioned by law enforcement, they deny having a pimp in order to protect their pimp.
A female detective who participated in the "bust" of Heather B. testified that she had taken photographs of Heather B.'s body afterward. The detective described photographs of particular tattoos depicted on Heather's body, which included the word "Queen," "G-M-T" and a "$" symbol. The detective explained that in her training and experience, the term "Queen" has a specific meaning in the pimping and prostitution world; generally, that word is found "on a girl who is, like, the main girl in the -- for the guy." With respect to the "G-M-T" found on Heather B.'s body, she explained that "[m]any girls have tattoos of their pimps or of the initials [of their pimps] on their body." Finally, the "$," which was tattooed on Heather B.'s pinkie finger, was explained as "[w]orking as a prostitute, that's what you do, you just make money."
Another detective testified that it is very common for pimps and prostitutes to have tattoos to show success and ownership. The "dollar sign" is a "[v]ery common tattoo" in the pimping and prostitution world. Like Heather B., Williams has a dollar sign tattooed on his pinkie finger. The jury was shown a photograph that detectives found in Heather B.'s phone that shows a Caucasian individual's pinkie finger, with a "$" tattoo, intertwined with a Black individual's pinkie finger, with a "$" tattoo.
One of the detectives collected cell phones from Heather B. and Williams on the night of the undercover vice operation and processed the phones for their content. At trial, the prosecution presented 24 pages of text messages and content that had been downloaded from Heather B.'s and Williams's phones. The content included the fact that Williams used the name "Trae," as well as the nickname "Daddy." Williams's phone included the Apple ID "Getmoney Trae."
A detective detailed the text message conversation between Heather B. and Williams that took place over the course of a week prior to the night of the undercover operation. Before relating some of the text messages themselves, the detective noted that Williams had stored his number in his own phone as "Daddy," which detectives recognize as being a common nickname for a pimp. Williams had Heather B. listed in his contacts by the moniker "ToTheTop," a reference that is commonly used in the pimping and prostitution culture as meaning that a certain person is going to take the pimp to the top and make the pimp successful. Heather B. had Williams listed in her phone under the contact name "Dada."
Heather B. did not testify at either the preliminary examination or at trial because the prosecution was unable to locate her.
As testified to by a detective, beginning on Wednesday, January 31, 2018, Heather B. and Williams exchanged text messages. Many of the messages were emojis sent by Heather B. to Williams. The detective described some of the conversation that followed:
Heather B. repeatedly sent Williams an emoji depicting an eggplant followed by an emoji depicting two footprints. There was no testimony provided as to the meaning of these emojis.
"It's [Williams's phone] sent text message of: watch it, bout [sic] to get fried [sic] up. [¶] She responds, you fired up? And then she writes, I'm frustrated, as 'f.' I wish I wouldn't have come out here if it was going to be this slow. [¶] I try my ass off to always make something and make the most, but days like today discourage me and make me upset. [¶] His phone replies: Is cool, babe. Go to sleep. She responds, I love you." "(Second & third bracketed insertions in original.)
The detective explained that it is "very common for prostitutes to update their pimp with text messages as they are working." In the detective's opinion, Heather B.'s reference to things being "slow" was Heather B. explaining to Williams that "[s]he's not getting a lot of customers."
The text exchange continued on February 2, 2018, at 9:00 a.m., when Williams sent Heather B. the word " 'campain.' " Heather B. responded, "Okay." After describing these texts, the detective was asked whether it was "common for pimps and prostitutes to communicate about the business and about when Johns are coming or when Johns are leaving," to which the detective responded, "Yes." The detective then described seeing a number of emojis sent by Heather B. At one point, Williams responds to Heather B. by saying, " 'Love you,' " and Heather B. responds with a kissing face emoji and a two pink hearts emoji. On February 4, 2018, at 10:10 p.m., Heather B. texted Williams, "Alright I'm in bed." The detective testified that it is "common for pimps and prostitutes to be communicating about when the [prostitute] has stopped working and when she's going to sleep."
Although the detective did not specify that the emojis had been sent by Heather B., the exhibit pages that correspond with the detective's testimony demonstrate that the emojis were sent from Heather B.'s phone.
The following day, February 5, 2018, at 3:55 p.m., Heather B. sent Williams a heart-eyed face emoji and a waving hand emoji, and then said, "I love you." Williams responded, "Love you." The next text message was from Heather B. to Williams, stating, "I enjoyed yesterday. Thanks for letting me have the day off and actually including me in things with your family. It means a lot to me considering I don't have a family. I love you a lot. Every day with you is perfect." Later that night, Heather B. wrote, "Back in room." Over an hour later, she sent him an emoji and a photo. The detective explained that it is common for a pimp and a prostitute to communicate about when the prostitute is in the hotel room that is being utilized for prostitution.
The photograph was redacted in the exhibit.
The next day, at 5:38 p.m., Heather B. sent Williams the word, "What." Williams responded, "Bitch, the fuck," and then, in a separate text, "Keep acting like you got a problem." Heather B. replied, "What are you talking about" and then followed that with "You said you were pulling up to practice, give you a min to respond, and I said, okay[?] What problem? I just asked for you to respond to my text message. Not giving any problem." An expert testified that Heather B.'s response to Williams in this exchange shows that she took him to be asserting dominance over her, and that this scenario appeared to elucidate the type of scenario in which a pimp will "check[ ]" or "establish[ ] his dominance over" a prostitute who "works for him." The expert testified that it was his opinion that Williams was being threatening toward Heather B., and that her response was "immediately submissive," and that this type of interaction is consistent with the existence of a pimp-prostitute relationship.
The next message in the text conversation is Heather B. asking Williams, "What time can I go to sleep?" There is no response from Williams in text form. The detective testified that prostitutes often ask their pimps for permission to stop working or to go to sleep.
The following morning, Heather B. texted, "I miss my mom." Williams responded, "I miss mine to [sic] babe" followed by "R u ok." Heather B. then stated, "No but I'll be ok," followed by a sad-faced emoji. Williams said, "I love you," to which Heather B. replied, "Love you to [sic]." Heather B. then texted Williams the following: "I just wish I could actually go and get my mom[']s name on her grave. My grandma grandpa other uncle and mom are all buried together and share a grave stone and everyone's name is on it except my mom. Everyone came together and got everyone's name on it but when my mom died nobody would pitch in to put her name on it I haven't seen her grave in 5yrs and in [M]ay it'll be 10yrs." Williams responded, "I no [sic] how u [sic] feel."
Heather B. then wrote, "12," and although this text shows up above Williams's next text, it would appear that her "12" was given in response to Williams asking in the next text, "What time is room up." Heather B. then wrote, "I'm hungry I just wanna go to the house," to which Williams replies, "Wait to 12" and "Come on babe." The detective testified that it is common in pimp-prostitution relationships for a prostitute to "ask about when [she] can stop work and go eat or go somewhere else."
At 8:30 p.m. on February 7, 2018, the date of the undercover operation, prior to her detention, Heather B. wrote, "I'm going to cry," followed by, "It's so slow." At some point after that, Williams responded, "Y." Heather B. sent Williams three sets of emojis; two of the sets included pink hearts, and one was a waving hand. At 10:46 p.m., Williams wrote "Wtf." A few minutes later, he wrote, "Babe did u leve [sic] me what's up I love you. Let me know what's up." He followed that message with, "Babe don't do this," and then another message in which he stated, "I'm going crazy please say something."
Law enforcement officers found a series of photographs and social media postings on Heather B.'s cell phone that depicted her activities related to prostitution in other states, apparently independent of Williams.
In the course of investigating this case, detectives located a video posted on YouTube entitled "Mother Fucking Race" that featured Williams rapping and making references to various pimping terms and activities. The rap video features Williams, Heather B. and two other women. Officers found the video through a YouTube link on a Facebook page belonging to Williams in which he identified himself as "Trae Williams." The video was played for the jury. The lyrics contain profanity, specific references to the pimping and prostitution world, and references to "beat[ing] . . . bitches" or putting them in their place. In the video, Williams refers to himself as "Get Money Trae." This was apparently Williams's pimping moniker. Multiple detectives opined that the video demonstrated that Williams participated in the prostitution industry as a pimp.
We provide additional excerpts of the lyrics from the rap video in our discussion section.
A detective testified that over a five-day period, Williams would view a particular prostitution advertisement on Backpage.com and then send a text message to the phone number listed in the advertisement; he did this at least 134 different times. In some of these text messages, Williams sent a link to his rap video and attempted to engage the person in conversation. For example, Williams asked a person who was advertising herself as a prostitute to "come fuck with [him]." According to a detective, this meant that he was asking the woman to come and work for him as a prostitute. The detective also testified that Williams was using his rap video as a means to recruit other prostitutes.
The detective testified that in his expert opinion, based on Williams's video, his use of Backpage.com, and his communications with Heather B., Williams was Heather B.'s pimp.
2. The defense
The defense called a single witness to testify. Stephen Groves is Williams's business partner, landlord, and friend. He and Williams had known each other for more than 20 years. Williams and his two sons live in a house that Williams rents from the Groves family, and Williams and his sons help make repairs to the house. Groves and Williams started an equipment rental company when they purchased a tractor and rented it out to the company that employs Groves. Usually, Groves takes the rent that Williams owes each month from Williams's portion of the money earned by their equipment rental business; when Williams's portion is not sufficient, Williams either pays Groves the remainder "or helps out around the house to get that thing back in decent condition." Groves had seen Heather B. around Williams's home; he did not know whether Heather B. was Williams's girlfriend. B. Procedural background
Williams was charged by information with one count of pimping an adult (Pen. Code, § 266h, subd. (a); count 1), and one count of pandering an adult by encouragement (§ 266i, subd. (a)(2); count 2). Both counts were alleged to have occurred between July 19, 2017 and February 7, 2018 and to have involved a Jane Doe, identified at trial as Heather B.
Further statutory references are to the Penal Code unless otherwise specified.
A jury found Williams guilty of both charged offenses. However, the trial court granted a defense motion to dismiss the pimping conviction in count 1 on the ground of insufficient evidence. The trial court thereafter sentenced Williams to a low term of three years in prison for the pandering conviction in count 2.
Williams was charged with pimping under subdivision (a) of section 266h, which provides in relevant part that "any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony . . . ." (Italics added.) The trial court determined that there was insufficient evidence elicited at trial to prove that Williams had "received money from Heather B.," and for this reason the court granted Williams's motion to dismiss the conviction for violating section 266h, subdivision (a) in count 1.
Williams filed a timely notice of appeal.
III.
DISCUSSION
A. Substantial evidence supports the conviction for pandering
Williams contends that there is insufficient evidence to support his conviction for pandering. He argues that "encouragement" alone is not enough, and that in addition, there must be evidence of the use of a "promise, threat, violence, device or scheme" (boldface omitted) in the encouragement of prostitution, and that there was no such evidence in this case.
1. Relevant legal standards regarding a claim for insufficiency of the evidence
In reviewing a claim for insufficiency of the evidence, we determine " 'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' " (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13, quoting People v. Ainsworth (1988) 45 Cal.3d 984, 1022.) Under this standard, we review the facts adduced at trial in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial evidence that the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The question on appeal is whether substantial evidence, of credible and solid value, supports the jury's conclusions, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.) " 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.' " (People v. Bean (1988) 46 Cal.3d 919, 933.)
"In considering a sufficiency claim, 'the reviewing court must consider all of the evidence presented at trial, including evidence that should not have been admitted.' " (In re Z.A. (2012) 207 Cal.App.4th 1401, 1425, italics omitted, quoting People v. Story (2009) 45 Cal.4th 1282, 1296 (Story).) The Supreme Court in Story explained the reason for this rule as follows:
" '[W]here the evidence offered by the State and admitted by the trial court—whether erroneously or not—would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.' [Citation.] Accordingly, 'a reviewing court must consider all of the evidence admitted by the trial court in deciding
whether retrial is permissible under the Double Jeopardy Clause . . . .' [Citation.] We have followed the high court in this regard." (Story, supra, at pp. 1296-1297.)
2. Legal standards pertaining to the offense of pandering
Williams was charged with violating section 266i, subdivision (a)(2), which provides, in relevant part, that a person is guilty of pandering if that person "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute."
Section 266i sets out six alternative methods of committing the offense of pandering. Williams was charged under subdivision (a)(2), only.
"[P]andering is a specific intent crime. Its commission requires that a defendant intend to persuade or otherwise influence the target 'to become a prostitute[.]' " (People v. Zambia (2011) 51 Cal.4th 965, 980 (Zambia), italics added.) The purpose of the pandering statute "is to criminalize 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." (Ibid.) The "long-standing . . . construction of the phrase 'encourages another person to become a prostitute' places the focus on the defendant's unlawful actions and intent, rather than making the targeted victim's character or occupation the determinative factors for conviction." (Ibid., italics omitted.) Therefore, "the proscribed activity of encouraging someone 'to become a prostitute,' as set forth in section 266i, subdivision (a)(2), includes encouragement of someone who is already an active prostitute, or undercover police officer." (Id. at p. 981.)
To encourage prostitution "means to urge, foster, stimulate, to give hope or help." (People v. Hashimoto (1976) 54 Cal.App.3d 862, 867.) Even the fact that a defendant "was not to receive any money from the venture directly is not fatal to the conviction." (Id. at p. 866.)
"[P]andering by encouragement, can be a crime of a continuous ongoing nature." (People v. Leonard (2014) 228 Cal.App.4th 465, 491.) Thus, the evidence presented to establish the offense may take the form of "several discrete events" or may be "directed towards a continuous course" of the alleged promises, threats, violence, or device or scheme. (See id. at p. 492.)
In line with these authorities, the jury was instructed as follows with respect to the offense of pandering:
"The defendant is charged in Count 2 with Pandering by Encouraging, in violation of Penal Code section 266i(a)(2).
"To prove that the defendant is guilty of pandering, the People must prove that:
"1. The defendant used promises, threats, violence, or any device or scheme to persuade, encourage, or induce Heather B. to become a prostitute, although the defendant's efforts need not have been successful.
"AND
"2. The defendant intended to influence Heather B. to be a prostitute.
"It does not matter whether Heather B. was a prostitute already.
"A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money or other compensation. Pandering requires that an intended act of
prostitution be with someone other than the defendant. A lewd act means physical contact of the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification." (Italics omitted.)
3. Analysis
Substantial evidence supports the People's theory that Williams engaged in a device or scheme through which he intended to, and indeed did, encourage and assist Heather B. to "ply[ ] the prostitution trade" (Zambia, supra, 51 Cal.4th at p. 980).
Although the parties have cited to no authorities, and we have found none, that interpret the phrase "device or scheme" as used in section 266i, subdivision (a)(2), we see no reason to vary from the common understanding of these words. The word "device" is defined, as relevant here, as "a scheme to deceive" <http://www.merriam-webster.com/dictionary/device> (as of Apr. 10, 2020), "a method that is used to produce a desired effect" <http://dictionary.cambridge.org/us/dictionary/english/device> (as of Apr. 10, 2020), or "a plan or scheme for effecting a purpose" or a "crafty scheme; trick" <http://www.dictionary.com/browse/device?s=t> (as of Apr. 10, 2020). A scheme is variously defined as "a plan, design, or program of action to be followed; project" or "an underhand plot; intrigue" <http://www.dictionary.com/browse/scheme?s=t> (as of Apr. 10, 2020), "a plan or program of action [¶] especially: a crafty or secret one" <http://www.merriam-webster.com/dictionary/scheme> (as of Apr. 10, 2020), or "a plan for doing or organizing something" or "a secret and dishonest plan" <http://dictionary.cambridge.org/us/dictionary/english/scheme> (as of Apr. 10, 2020). We therefore understand the reference to "device or scheme" in section 266i to mean some type of plan, likely involving some element of falsity, trickery, or underhandedness.
Other references to these terms in California's statutes support interpreting these terms pursuant to the ordinary meaning of such terms as we have outlined here. For example, Corporations Code section 27101, subdivision (a) makes it unlawful for someone to "[e]mploy any device, scheme, or artifice to defraud" "in connection with the solicitation, receipt, or collection of, or solicitation of any subscription or contract to pay" contribution or fees for the purpose of protecting the rights of security owners. In section 502.7, subdivision (a)(5), the Penal Code makes it a crime to avoid a charge for telephone service "[b]y using any . . . deception, false pretense, trick, scheme, device, conspiracy, or means, including the fraudulent use of false, altered, or stolen identification."
The evidence in this case demonstrated that Heather B. was acting as a prostitute during the time period relevant to the charge of pandering. This was undisputed. Further, there was significant evidence from which a jury could conclude that Williams and Heather B. had a relationship commonly understood to be that of a pimp and prostitute. For example, Williams and Heather B. had matching tattoos of dollar signs on their pinkie fingers, and Heather B. also had tattoos of the initials that corresponded with Williams's moniker and the phrase "queen" on her body. An expert testified that the matching dollar sign tattoos signified the mutual goal of making money together, and that Heather B.'s tattoos relating to Williams's moniker along with the word "queen" demonstrated that Heather B. was a prostitute who was working for a specific pimp—i.e., Williams.
In discussing the nature of the relationship between Williams and Heather B., we occasionally refer to the relationship as that of pimp and prostitute, based on the expert testimony. Our use of the term "pimp" is intended to refer to the common, layperson understanding of the term, and is not intended as a reference to the statutory definition of a person who commits the offense of "pimping." In lay terms, a "pimp" has been defined as "a man who controls prostitutes (= people paid for sex)" <http://dictionary.cambridge.org/us/dictionary/english/pimp> (as of Apr. 10, 2020) or "a person, especially a man, who solicits customers for a prostitute or a brothel, usually in return for a share of the earnings; pander; procurer" <http://www.dictionary.com/browse/pimp> (as of Apr. 10, 2020). Our use of the term "pimp" in this descriptive sense is to be distinguished from its use to identify someone who has been convicted of the offense of "pimping" under section 266h, subdivision (a) of the Penal Code. The trial court concluded that there was insufficient evidence that Williams had received any money from Heather B.'s prostitution activities, and that he therefore could not be convicted of the offense of "pimping" under section 266h, subdivision (a). However, the colloquial understanding of the term "pimp" does not necessarily include the requirement that the individual at issue have obtained earnings from the prostitute.
There was also substantial circumstantial evidence from which a jury could conclude that Williams engaged in a scheme of emotional manipulation to encourage and induce Heather B. to prostitute herself. The text message communications between Williams and Heather B. showed that Williams would vacillate between professing to love and be concerned about Heather B., and exerting control over her by directing her to continue working as a prostitute, despite indications that she wanted to rest or take break from working. At one point, Heather B. indicated that she wanted to leave a hotel room that she had rented for the purpose of engaging in sexual activities related to her work as a prostitute; Williams asked her until what time she had the room, and when she informed him that she had the room until 12, he told her to "[w]ait to 12." The prosecution presented expert testimony intended to put all of these communications in context, including how pimps often tell the prostitutes who work for them when they may rest or take a break to eat, and when they may stop working. There was also evidence that Williams provided Heather B. with a vehicle to get to the hotel, and that he stayed in contact with her while she was at the hotel.
In addition, the jury viewed Williams's rap video, in which he portrayed himself as a pimp, and heard evidence that Williams sent this video to other women who had advertised as prostitutes online in an attempt to solicit those women to work for him as prostitutes. Based on this evidence, the jury could have reasonably inferred that Williams's intention with respect to Heather B. was to ensure that she continued to work as a prostitute for him. In sum, the jury could have reasonably concluded that Williams was not simply a boyfriend providing generic encouragement to his girlfriend in her endeavors, but instead, that Williams was manipulating Heather B. and, through this manipulation, was encouraging her to engage in further acts of prostitution.
Williams contrasts the evidence in this case with the evidence presented in Zambia, supra, 51 Cal.4th 965. In Zambia, the Supreme Court concluded that evidence that the defendant identified himself as a pimp, told the undercover officer who was posing as a prostitute that he would "provide her with protection, housing, and clothing if she turned her earnings over to him," and said that he would " 'take care of [the undercover officer]' " (id. at p. 981) was sufficient to support the defendant's conviction for pandering. Although Zambia involved a pimp offering to provide an undercover officer with housing, clothing and protection, the Zambia case does not limit application of the pandering statute only to situations in which there is direct evidence of the details of a pimp and prostitute's initial discussions about the specifics of what a pimp might offer a prostitute to encourage or induce her to work for him. Rather, Zambia merely offers a glimpse into one of the ways in which the prosecution could prove that a defendant committed the offense of pandering. The Zambia court noted that the chief concern of the pandering statute is conduct on the part of the defendant of "inducing and encouraging"—that is, conduct by the defendant that "is aimed at producing subsequent conduct by the target: that the target thereafter engage in acts of prostitution following a defendant's inducement or encouragement." (Id. at p. 975.) Such inducement or encouragement can occur in a number of different ways.
Although the evidence in this case did not include express promises by Williams to "take care of" Heather B., there was evidence that Williams would profess to Heather that he cared for her, interspersed with his insisting that she continue to prostitute herself. Based on this circumstantial evidence, together with evidence demonstrating that Heather B. was working as a prostitute and that Williams exerted control over many aspects of her life, and expert testimony regarding how pimps often manipulate vulnerable women to work for them as prostitutes, the jury could have reasonably concluded beyond a reasonable doubt that Williams's declarations of care, concern, and love for Heather B. were part of a scheme intended to encourage Heather B. to continue plying the prostitution trade. We therefore reject Williams's contention that there was insufficient evidence to support his conviction for pandering. B. The trial court did not commit reversible error in admitting the evidence that Williams challenges on appeal
Williams contends that the trial court abused its discretion in admitting evidence of a rap video in which Williams portrays himself as a pimp, and in allowing the jury to consider for their truth certain statements made by Heather B. in a text message that she sent to Williams. According to Williams, the erroneous admission of this evidence requires reversal of his pandering conviction under either the state or federal constitutional error standards of prejudice review.
1. Additional background
Prior to trial, the prosecutor sought a ruling regarding the admissibility of the rap video and a series of text messages between Williams and Heather B. that was found on their cell phones. The prosecutor argued that the rap video was "highly relevant" because "he's depicting himself doing the exact same thing we believe the evidence in this case is showing he's doing."
To provide a sense of the content of the video, we provide a sample of some of the lyrics that Williams can be heard rapping on the video, which include some of the following statements (repeated lines from the backup singers have been omitted):
• "I don't fuck for free; I make them bitches pay."
• "She know I'm pimpin'. She can see it in my face."
• "Just put anotha' hunned K up in the safe."
• "I check a bitch; I put a bitch up in her place."
• "Where I send a broke bitch? That way, that way that way."
• "Get Money Trae. Get Money Trae. I'm the one the bitch pay."
• "And you'd the mark. You be doin' what the bitch say."
• "They gave me a choosin' fee. I don't motha' fuckin' rob 'em."
• "They gave me all the money without a motha' fuckin' problem."
• "Keep a 30 round stick. She keep a 30 pack of condoms. Hit the road, 30 days, 30 thousand, no problem."
• "Just check another trap. Hold on; pimpin' got it counted."
• "I'll beat a bitch ass, if a bitch up out pocket."
• "I'll sit the bitch down if she gon' sock it to my pocket."
• "Or, you could back off. Bitch, I ain't gon' stop it."
• "She eatin' hot dog; now with me, she was eatin' lobster."
• "She eatin' noodles; now with me, she was eatin' pasta."
• "She say, oh love this money turns me into a monster."
• "I don't fuck for free. I make them bitches pay."
• "She know I'm pimpin'. She can see it in my face."
• "You put anotha' hunned K up in the safe."
• "I check a bitch; I put a bitch up in her place."
• "Give me the money or do the motha' fuckin' race."
Defense counsel objected to the use of the rap video at trial, arguing that it was largely irrelevant and that it constituted protected speech under the First Amendment. Defense counsel also pointed out that the rap video contained "assertive conduct" on the part of other individuals in the video, such that it was inadmissible hearsay, even if the statements made by Williams in the video fell under an exception to the hearsay rule for statements made by the defendant.
The prosecutor argued that the video was particularly relevant because "it shows his direct knowledge, his very specific experience and knowledge in this area. This -- his intent." The prosecutor noted, "He's doing the things that he's rapping about," "he calls himself Get Money Trae" in the video, and Heather B. has a tattoo of the initials of that moniker. In addition, there's "very specific language about what he does with his prostitutes." The prosecutor explained that there would be other evidence that would demonstrate that Williams not only made the video, but that he reached out to individuals who advertised their prostitution services on Backpage.com, sent them a link to the video and said things like "[H]ey, check this out. What do you think? You should come fuck with me," and the prosecution's experts would explain that "come fuck with me" in the pimping and prostitution world "means come work for me." Thus, there was evidence that Williams used the video to "try to recruit other prostitutes to work for him," i.e., to pander.
In response, defense counsel argued that the women in the video were "acting" and that this constituted "assertive conduct." Defense counsel then argued that Williams's sending the video to other people was a method to "increase the likes" on YouTube and to encourage "people to look at it" because he is a rapper and wants to become a star.
After hearing argument from counsel, the trial court said, "All right. So obviously there's a factual dispute about the significance of the video, but it seems that's for the jury." The court indicated that Williams was not being prosecuted for his conduct on the video, but rather, given that the video links Williams and Heather B., and given that Williams made statements on the video related to the pimping industry, the video contained relevant material that had probative value in the case. The court further stated that defense counsel was free to argue to the jury that the rap video had "nothing to do with criminality and it's just First Amendment freedom of expression." The court also mentioned that it was possible that an instruction on that issue might be needed. Ultimately, the court concluded that "it's within the realm of appropriate evidence for the jury to consider and the jury to decide what it means and its significance." The court expressly rejected defense counsel's contention that the conduct of the women in the video "amounts to hearsay," and noted that as to Williams's statements in the video, there is a hearsay exception for the statements of the defendant. The court ruled that the prosecutor would be permitted to show the video to the jury and provide them with transcripts of the lyrics of the rap that Williams performs in the video.
The trial court next turned to the admissibility of the text messages between Williams and Heather B. Defense counsel argued that any statements that Heather B. made in text messages was hearsay, and that there was no basis for admitting those statements for their truth without Heather B. testifying at trial. The court delayed ruling at that time, indicating a need to review the text messages to determine whether some or all of them could be admitted.
The following day, the attorneys and the trial court revisited the issue of Heather B.'s text messages. Defense counsel noted that Evidence Code section 1250, the state of mind exception to the hearsay rule, would not apply to permit Heather B.'s statements to be admitted for their truth because her mental state was not relevant to whether Williams had engaged in pimping or pandering. The court indicated that in certain instances in which Williams responded to Heather B.'s statements, there might be a reason to admit Heather B.'s statements to put Williams's statements in context, but where she made a statement and Williams did not respond, there would appear to be no basis for allowing such statements to be admitted for their truth.
The court ultimately ruled that one of Heather B.'s statements, "where she says, thanks for including me. I like being with your family. Love you a lot. Every day is perfect" was admissible for its truth because it "does go to her state of mind, issue of pandering, whether he's encouraging her, doing activities with her that helps her feel honored by him . . . ." The court concluded, "I think, for that purpose, the state of mind is relevant." The court excluded one other text message from Heather B., and ruled that the prosecution would be allowed to present evidence of the other text messages between Heather B. and Williams, not for the truth of Heather B.'s statements, but to provide context for Williams's statements and as evidence of the nature of their relationship. The court indicated that it would instruct the jury that any statements made by Heather B. were not being offered for their truth, other than the one statement that the court had determined would be admitted for the limited purpose of demonstrating Heather B.'s state of mind.
After the exhibits with the text messages were presented to the jury, the trial court provided the jury with the following limiting instruction:
"With regard to the statements made by Heather B., they are not being received for the truth of the matter stated by her. For example, a statement of it being slow or going to sleep is not being received for the truth that it was actually slow or she was actually going to sleep.
"Instead, you may consider her side of the dialogue for the purpose of showing the nature of the relationship with defendant, the topics being discussed, and his responses to her statements.
"Defendant's statements are received as an exception to the hearsay rule and may be considered for their truth.
"Additionally, Heather's statement from February 5th that begins with the text: I enjoyed yesterday. Thanks for letting me have the day off. is being received as an exception to the hearsay rule and may be considered for -- as it pertains to her state of mind. You can consider it for its truth as to what she was thinking or feeling at that time."
2. Analysis
a. The admission of the rap video
Williams argues that the trial court abused its discretion in admitting the rap video in evidence at trial. According to Williams, the rap video "was not relevant because it did not relate to any question presented to the jury," "was unduly prejudicial under Evidence Code [section] 352," and should not have been admitted because its admission "violated the First Amendment because it was an abstract expression of appellant's beliefs."
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Id., § 210.) However, a trial court may exclude even relevant evidence if the court determines that the probative value of the evidence "is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Id., § 352.)
A trial court's ruling on the relevance of evidence is reviewed for an abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) The abuse of discretion standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.)
Evidence Code section 353 provides, "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ." Therefore, "[r]eviewing courts will generally not consider a challenge to the admissibility of evidence unless there was a ' " 'specific and timely objection in the trial court on the [same grounds] sought to be urged on appeal.' " ' " (People v. Gomez (2018) 6 Cal.5th 243, 286.)
We disagree with Williams's assertion that the rap video was not relevant to the matters to be resolved by the jury. Statements made by a defendant can be used to demonstrate motive, intent, and identity. In particular, rap lyrics written by a defendant may be relevant to establish contested issues of fact, including the defendant's intent. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 (Olguin); see also People v. Zepeda (2008) 167 Cal.App.4th 25, 35 (Zepeda) [rap lyrics were "probative of defendant's state of mind and criminal intent, as well as his membership in a criminal gang and his loyalty to it," and, as such, the evidence "was explicitly relevant to the charges against defendant"].)
Like the lyrics at issue in Olguin and Zapeda, the rap video in this case was probative of a number of matters at issue in the trial. The video of Williams rapping demonstrated his personal knowledge of the pimping and prostitution industry, and was probative of whether he was acting as a pimp generally, and as a pimp to Heather B., specifically; given that the nature of Williams's relationship with Heather B. and that the question whether he was acting as her pimp was in dispute at trial, such matters were relevant to the charges against Williams. The prosecution also sought to use the video to provide fuller meaning and context to the text conversations between Williams and Heather B., as well as to provide circumstantial evidence of Williams's state of mind, intent and motive with respect to his encouraging Heather B. to engage in prostitution. In addition, Williams refers to himself by his full "pimp" moniker in the rap lyrics, which was significant because this moniker linked Williams to one of the tattoos on Heather B.'s body and thus helped to demonstrate their pimp-prostitute relationship. Because the rap video was probative of a number of material issues at trial, the trial court did not abuse its discretion in determining that the rap video constituted relevant, probative evidence regarding contested issues of fact.
Williams's defense was that he had an above-board business with his friend and business partner, and that it was the proceeds from this business that sustained him. He utilized the testimony of his friend and business partner to attempt to frame his relationship with Heather B. as a typical romantic relationship, including by referring to occasions when Williams's friend saw Heather B. with Williams at Williams's house or at the friend's house, and identifying times when Heather B. was photographed with Williams's brother's children. There were also suggestions by the defense that, to the extent that Heather B. might have "worked" for Williams, it could have been in any capacity, such as in the capacity of a babysitter or someone who sold marijuana for him.
We also reject Williams's contention that the admission of the rap video "violated the First Amendment." Williams argues that the First Amendment "bar[s] the admission of evidence relating to a defendant's 'abstract beliefs . . . when those beliefs have no bearing on the issue being tried.' " He further asserts that "the videos were[] an abstract expression of the pimping lifestyle" and were therefore protected by the First Amendment from use in this trial.
There was only a single video admitted at trial.
"[T]he Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations . . . simply because those beliefs and associations are protected by the First Amendment." (Dawson v. Delaware (1992) 503 U.S. 159, 165, italics omitted.) If the evidence is relevant to the issues being tried, its use does not violate the First Amendment. (People v. Quartermain (1997) 16 Cal.4th 600, 629; People v. Smith (2003) 30 Cal.4th 581, 626 [admission of evidence that is "relevant to actual criminal conduct . . . does not violate [a defendant's] constitutional free speech rights"].) As we have explained, the trial court reasonably concluded that the rap video was relevant to the issues being tried: The video depicts Williams in the role of a pimp to Heather B., who portrayed herself as a prostitute. Further, there was evidence presented from which one could conclude that Williams used the video as a recruiting tool to try to entice other women to work as prostitutes for him. This evidence takes the rap video out of the realm of pure fictional entertainment and places it in a different context—one in which a reasonable juror could infer that the video was an accurate depiction of the roles that Williams and Heather B. held vis-à-vis each other, and, based on this, could also infer that Williams knew that Heather B. was a prostitute and that he had the intent to persuade her to prostitute herself when, through his text messages and other conduct, he encouraged her to continue to work. Such use of this evidence is permissible and does not offend the First Amendment.
Finally, we address Williams's contention on appeal that the trial court abused its discretion in allowing the prosecution to present evidence of the rap video to the jury on the ground that the video was more prejudicial than probative under Evidence Code section 352. Specifically, Williams argues that "[t]he content of the rap video is graphic and offensive. It uses extensive profanity, including more than 25 references to 'bitches' which, to[ ] many, would be seen as degrading to women. [Citation.] It also refers to physical violence against women ('sock that bitch up in her motha' fuckin' face') and control of women in the context of pimping and prostitution. In short, the rap video was an artistic expression of a vulgar and misogynistic lifestyle that would have been shocking to the jury." He asserts that the "only use was to evoke an emotional bias against" him, and that "[i]t made him look terrible and predatory in the eyes of the jury."
Although the People do not argue that Williams has forfeited this argument, our review of the record reveals that Williams did not raise any objection to the video under Evidence Code section 352 in the trial court. Significantly, in pretrial motions, with respect to the rap video evidence, defense counsel's only written objections to its admission were as follows: "Grounds: Relevance (not used to recruit Doe, attempted recruitment of anyone else not at issue), First Amendment, Hearsay." There is no reference to Evidence Code section 352 in defense counsel's motion to exclude the video.
The trial court introduced the subject matter of the video at the motion hearing by saying to the attorneys, "With regard to motion 5, to admit the rap video, so, again, sounds like you are saying he admitted he made it. There's not an authentication issue. The issue would be relevance and 352." However, in the discussion that ensued, neither the prosecutor nor defense counsel ever discussed or even mentioned the possible prejudice from the playing of the video, nor made any reference to Evidence Code section 352. Rather, when asked to respond to the prosecutor's argument, defense counsel stated that her "first objection would be relevance," and that her "second ground would be First Amendment" because "people, rappers, musicians, actors, artists depict all types of things in their art." Counsel stated that the video constituted entertainment, and that there would be a chilling effect on free speech, etc., if the video were admitted against Williams. Counsel did not mention the possibility that Williams would be prejudiced as a result of the jury being exposed to the full content of the video. Counsel did not argue that the video would make Williams look bad or would evoke an emotional bias against him. Rather, counsel went on to argue that the video constituted "inadmissible hearsay." When the court pointed out that there is an exception to the hearsay rule for statements made by the defendant and that the rapping in the video was being done by the defendant, counsel asserted that there remained a hearsay issue with respect to the video because the conduct of the women who appear in the video constituted "assertive conduct" that suggested that the women are prostitutes, even though there was no proof that the women were, in fact, prostitutes. Counsel argued that the prosecution should not be permitted to use the video to establish that the women in the video were prostitutes. Over the course of nine pages of reporter's transcript covering the discussion between the court and the attorneys regarding this issue, neither counsel mentions Evidence Code section 352, and the word "prejudice" is never uttered. The closest that defense counsel comes to making any such reference is the following:
"I mean, art extends to painting, poetry, to movies. We don't investigate actors who shoot people in movies. This is just a video, a song that doesn't prove or disprove anything. [¶] One of the other reasons that the People intend to use it is to say that Mr. Williams used it to try to recruit other prostitutes. [¶] First of all, that's not relevant because he's not charged with recruiting other prostitutes. He's not charged with attempted pimping or pandering of anybody but Heather. [¶] And Heather is in the video. There [is] no evidence that he used a video like this to recruit Heather. So it doesn't show any sort of a plan or a motive or a scheme.
"I mean, it's hearsay. It's an out-of-court statement offered for the truth of the matter asserted, that he's a pimp.
"I mean, it's just -- I think it's offensive on so many levels. It's not relevant. It's hearsay without an exception. There's no exception to the hearsay rule that allows this." (Italics added.)
Typically, the reference to "offensive" in an argument about the admissibility of evidence might lead one to determine that the attorney making the reference was raising a question about the potential prejudice to the defendant. However, in this instance, when the phrase "offensive" is placed in context with the rest of the argument, it appears more likely that counsel was commenting that the prosecution's seeking to admit the video was offensive, and was not then arguing that the content of the video, itself, was offensive and therefore should not be admitted as unduly prejudicial.
Finally, the statements that the trial court made when it ruled on the admissibility of the video indicate that the court was not performing a weighing of the potential prejudice that could result from the introduction of the video against the probative value. The court did not mention Evidence Code section 352 in its ruling nor refer to prejudice resulting from the potential admission of the video. Rather, the court touched on each of the specific objections that defense counsel had raised: relevance, First Amendment questions, and hearsay. These are the same objections that defense counsel raised in pretrial written motions and in oral arguments before the judge. Given the lack of any indication that the trial court was weighing the potential for the evidence to evoke an emotional bias against Williams or considering whether such potential prejudice would outweigh the probative value of the video, we cannot conclude that the trial court was considering an objection under Evidence Code section 352 in rendering its ruling on the admissibility of the video.
Courts "have consistently held that the 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes that ground not cognizable." (People v. Partida (2005) 37 Cal.4th 428, 433-434 (Partida).) "The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal." ' " (Id. at p. 434.) " 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' " (Ibid.) "If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (Id. at p. 435.)
Given the absence of any reference by defense counsel to seeking to exclude the video under Evidence Code section 352 and no request for a ruling on the question of whether the potential prejudice from showing the video to the jury would outweigh its probative value, we conclude that defense counsel did not raise an objection under Evidence Code section 352 in the trial court. As a result, we conclude that this issue has been forfeited.
However, even if Williams had not forfeited this issue, we would not find an abuse of discretion in the trial court's ruling admitting the rap video in evidence. Although the content of the video is potentially offensive in that it depicts three women as prostitutes and contains lyrics that are misogynistic and aggressive, the video overall is not highly graphic, given the subject matter. Further, as noted, the video was probative of the existence of a pimp-prostitute relationship between Williams and Heather B. in that it could reasonably be understood as Williams describing his role as a pimp, though in an exaggerated manner. The video thus provided context for understanding the text communications between Williams and Heather B. and giving those communications meaning. Although the video depicted potentially offensive conduct, it was not admitted simply to demonstrate that Williams was a bad actor or that he has a dim view of women. Rather, it was admitted to demonstrate that Williams was, in fact, Heather B.'s pimp, and that he was trying to facilitate her prostitution.
The admission of the rap video is significantly different from the multiple rap videos that the court ruled should not have been admitted at trial in the recent appellate court opinion in People v. Coneal (2019) 41 Cal.App.5th 951 (Coneal). The Coneal court was considering the admission of five rap videos made by the defendant and other members of his gang. In light of the cumulative nature of the videos, as well as the fact that there was no reason to believe that the rap lyrics should be literally construed, the probative value of the multiple videos and the accompanying rap lyrics was minimal. In addition to having minimal probative value, the rap lyrics were "extremely prejudicial," due to their "graphic, widespread violence" and "misogynistic" statements. (Id. at pp. 966, 968, 970.) Here, in contrast, the lyrics in Williams's rap video were essential to the probative value of the video, given that the lyrics demonstrated Williams's knowledge of the prostitution industry, provided circumstantial evidence of his intent to encourage Heather B. to engage in prostitution, and provided Williams's full pimp moniker, which linked him to the tattoo on Heather B.'s body. In addition, unlike the lyrics at issue in Coneal, where there was no indication that the lyrics in the rap videos could be taken literally, there was evidence presented in this trial that suggested that Williams's lyrics could be understood literally. Specifically, the People presented evidence that Williams was using the rap video to attempt to recruit other women to work for him as prostitutes. Thus, there was evidence to suggest that this rap video was not simply an "entertainment" piece, and that its lyrics could be understood to have some degree of "literal truth." (Id. at p. 969 [noting that lyrics may at times be "probative of their literal truth," and that probative value of lyrics may be increased by "sufficient corroboration from other evidence" regarding whether the lyrics could be taken literally].)
Finally, to the extent that Williams was concerned with the prejudicial impact from the jury viewing the video or hearing the lyrics, he could have sought some limitation on the presentation of the evidence. It is possible that if the trial court had been presented with the argument that Williams is now raising on appeal, the court might have considered limiting the video's admission in some way. Because Williams did not specifically object to the "graphic and offensive" nature of the video, or argue that the playing of the video "would have been shocking to the jury" and could lead the "evo[cation of] an emotional bias against appellant," as he now does on appeal, it is impossible to know whether or to what extent the trial court might have addressed such concerns. Regardless, however, we conclude that even if the court had admitted the entire video over an Evidence Code section 352 objection, such a decision would not have been an abuse of the court's discretion.
b. The admission of one of Heather B.'s text messages for its truth with respect to Heather B.'s state of mind
Williams contends that Heather B.'s text message from February 5 regarding her gratitude for Williams giving her a day off and allowing her to spend time with his family was improperly admitted for the truth of the statements made in the text message as reflecting Heather B.'s state of mind under Evidence Code section 1250. According to Williams, Heather B.'s state of mind was not relevant to the pandering and pimping charges.
The full text of the relevant text message is, "I enjoyed yesterday. Thanks for letting me have the day off and actually including me in things with your family. It means a lot to me considering I don't have a family. I love you a lot. Every day with you is perfect."
At one point in briefing, Williams asserts, without citation to the record, that "the message was admitted to establish that appellant did in fact give Heather the day off and include her in his family." However, as we have previously described, the trial court gave the jury a limiting instruction with respect to this text message, stating: "Additionally, Heather's statement from February 5th that begins with the text: I enjoyed yesterday. Thanks for letting me have the day off. is being received as an exception to the hearsay rule and may be considered for -- as it pertains to her state of mind. You can consider it for its truth as to what she was thinking or feeling at that time." (Italics added.) The court's limiting instruction thus precluded the jury from using the text in the way that Williams asserts in his brief without citation to the record. Given other phrasing of the argument presented in Williams's briefing, as well as the trial court's limiting instruction on this matter, we understand Williams to be making the argument that we describe in the text.
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Id., subd. (b).) Evidence Code section 1250 provides for an exception to the hearsay rule. It states in relevant part that "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant." (Id., subd. (a).)
The People contend that evidence of Heather B.'s "then existing state of mind, i.e., her gratitude, was relevant to show the manipulation and encouragement appellant used to pander her," thereby contending that Heather B.'s state of mind was "itself an issue in the action." (Evid. Code, § 1250, subd. (a).) However, Heather B.'s state of mind is not probative of Williams's conduct or intent; as Williams notes, the People's contention was that "because Heather felt or perceived something, facts must have existed to support those feelings and perceptions." The trial court appears to have believed that Heather's state of mind would be admissible because it would go to "whether he's encouraging her, doing activities with her that helps her feel honored by him . . . ." This would not be a proper use of "state of mind" evidence under Evidence Code section 1250. (See People v. Deeney (1983) 145 Cal.App.3d 647, 653 [statements made by victim "were not offered to explain" victim's "acts or conduct" but were improperly used to "attempt to demonstrate [the defendant's] conduct"].)
Assuming that the trial court erred in allowing the jury to consider Heather B.'s text message for the truth of Heather B.'s state of mind at that time, we conclude that this error does not require reversal of Williams's conviction.
Williams's contention with respect to the prejudice that flows from this error is somewhat difficult to parse. He asserts that both of the evidentiary errors that he raises on appeal (the admission of the rap video and the admission of Heather B.'s February 5 text message to demonstrate her state of mind), "individually and collectively compel reversal under any standard of prejudice." Although he refers to each error as individually requiring reversal, Williams's argument in that section of his briefing does not distinguish between the effect of the two claimed evidentiary errors and instead relies on both in making his prejudice argument. Since we have concluded that the trial court did not err in admitting the rap video, we must consider whether the court's admission of one of Heather B.'s text messages for the purpose of establishing the "truth" of Heather B.'s state of mind requires reversal of Williams's conviction under the relevant standard of prejudice review.
In the section on prejudice in Williams's reply brief, he appears to complain about the manner in which one of the detectives testified with respect to Heather B.'s text messages. Specifically, Williams appears to contend that the detective's testimony was intended to establish the truth of Heather B.'s other text messages, despite the trial court's ruling and limiting instruction, and claims that the prosecutor "intentionally and repeatedly used the content of the texts for their truth." Williams did not raise this as a claim of error, and we therefore decline to address it as a contention of error supporting reversal on appeal.
Although Williams suggests that the erroneous admission of Heather B.'s February 5 text message to establish Heather B.'s state of mind was so serious as to constitute a violation of his due process rights, thereby entitling him to the standard for prejudicial error announced in Chapman v. California (1967) 386 U.S. 18, 24, we are not convinced. "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (Partida, supra, 37 Cal.4th at p. 439, italics omitted.) " 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) Thus, " '[t]he dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." [Citations.]' [Citation.]" (Ibid.) Heather B.'s statement about her gratitude to Williams for giving her a day off and inviting her to spend the day with his family, even if admitted erroneously for the purpose of proving her state of mind, is not of such a unique quality that its admission rendered Williams's trial fundamentally unfair.
We therefore consider whether the admission of this text message for the purpose of establishing Heather B.'s state of mind at the time she wrote it was prejudicial under the standard for prejudicial error stated in People v. Watson (1956) 46 Cal.2d 818, 836. Under this standard, we ask whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Ibid.) " ' "[A] 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." ' [Citation.]" (People v. Jandres (2014) 226 Cal.App.4th 340, 360, italics omitted.) We conclude that it is not reasonably probable that Williams would have obtained a more favorable result absent the admission of this one text message.
The jury heard evidence about how law enforcement officers came into contact with Heather B.; the evidence demonstrated that Heather B. was a prostitute, and that she was advertising her services. It also showed that Williams was acting in a manner demonstrating some degree of control over Heather B.'s activities. Williams arrived at the hotel where Heather B. had been detained by officers after texting Heather B. numerous times and getting no response. Experts explained the role that pimps play in the prostitution industry. In addition, there was other evidence, including the matching dollar sign tattoos, Heather B.'s tattoos (which included the initials of the moniker Williams used in the rap video) and the nicknames each used to for themselves and each other, that demonstrated the existence of something other than simply a romantic relationship between the two. Further, the car that Heather B. had driven to the hotel was registered to Williams, demonstrating that Williams was assisting Heather B. in her prostitution.
It is undisputed that the trial court properly allowed the jury to consider numerous other text messages from Heather B. to provide context to, and explain, Williams's own text message responses. These text messages provided significant circumstantial evidence of the nature of Williams and Heather B.'s relationship, as well as Williams's encouragement of Heather B.'s prostitution through a scheme intended to keep her believing that he cared for her and considered her to be his girlfriend. Williams's text messages also provided evidence of his specific encouragement of Heather B.'s prostitution, such as when he asked for how long she had the hotel room and then told her to wait in the room until her reservation had expired.
Although the evidence in this case was not overwhelming, the totality of the evidence, direct and circumstantial, painted a clear picture that the nature of Williams's relationship with Heather was not simply one of romantic partners, and that Williams engaged in conduct intended to ensure that Heather B. continued working for him as a prostitute. The evidence of Heather B.'s state of mind as provided by a single text message, in the context of all of the text messages between Williams and Heather B., was not particularly significant. It is thus not reasonably probable that the jury would have returned a more favorable verdict if evidence of the particular text message that Williams challenges on appeal had been excluded.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: MCCONNELL, P. J. HALLER, J.