Opinion
A149188
07-10-2018
THE PEOPLE, Plaintiff and Respondent, v. LEWIS WYNN et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C176934)
A jury convicted Lewis Wynn (Lewis) and his half-brother, Samuel Wynn (Samuel, collectively defendants), of kidnapping (Pen. Code, § 207, subd. (a)) and human trafficking for commercial sex (§ 236.1, subd. (b)). The trial court sentenced defendants to state prison.
Undesignated statutory references are to the Penal Code. We refer to each defendant by his first name for clarity, intending no disrespect.
On appeal, Lewis argues the court erred by admitting certain expert testimony, and by admitting one of his prior convictions. Lewis also claims the court gave incomplete instructions on aider and abettor liability. Samuel contends trial counsel rendered ineffective assistance by failing to object to the expert testimony, and that the court erred by imposing punishment on both convictions.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged defendants with kidnapping to commit a sex crime (§ 209, subd. (b)(1)) and with human trafficking for commercial sex (§ 236.1, subd. (b)), by depriving the victim's personal liberty with the intent to pimp and pander (§§ 266h, 266i). The information alleged defendants had several prior convictions, including Lewis's 2003 forcible rape conviction (§ 261, subd. (a)(2)).
Prosecution Evidence
We provide an overview here, and additional factual and procedural details in the discussion of defendants' specific claims.
In July 2015, Jane Doe, an African-American prostitute, traveled from Arkansas to Los Angeles. Doe engaged in prostitution in Los Angeles; then she and another prostitute, Nina, went to Oakland. Doe and Nina drove to the "track"—the corner of 18th Avenue and International Boulevard in Oakland—an area known for prostitution. Doe parked, put her purse behind the passenger seat, and went toward the track. A white Lexus stopped near Doe. Two African American men—later identified as defendants—got out of the car. Two other men remained in the car.
Samuel approached Doe; Lewis approached Nina. Samuel asked Doe: " 'Where's your pimp at' " and said: " 'I'm a mother fucking pimp, and I need a new girl[.]' " Doe refused to make eye contact with Samuel. She ignored him because "[i]t's part of the rules," i.e., prostitutes are "not supposed to look at them, talk to them, none of that" because "they can take you, snatch you up. . . It's called being out of pocket." When she worked, Doe did not speak to African-American men. She believed African-American men in California are "mostly all pimps[.]" She learned this "rule" from other prostitutes.
Doe heard Lewis tell Nina he was a pimp. Lewis asked Nina if she and Doe needed " 'new construction,' " i.e., "guidance" in prostituting themselves. Doe and Nina ignored defendants, who returned to their car and drove away. A short time later, Doe saw defendants get out of the Lexus and look into the backseat of her car. Then defendants returned to the Lexus and drove off.
The Lexus returned. Samuel got out of the car and approached Doe. He got "real close" to Doe and said she was "about to get [her] ass in the motherfucking Lexus." He also said "if [she] would have spoke[n] to [him], [she] wouldn't have had these problems." Doe ignored Samuel and he got "frustrated." He grabbed Doe and forced her into the Lexus. Doe kicked and screamed—trying to get away—but Samuel overpowered her. He pushed Doe inside the car, and then got into the car. Lewis and two other men were in the car. Samuel told Doe, " 'We're going to go to a hotel. You're about to suck all of our dicks, and we'll take you to the white men and make a lot of money[.]' "
Doe thought Samuel " 'was trying to pimp [her][.]' " She was scared. She cursed, and screamed " 'Drop me off. Let me go.' " The other men in the car said they should drop Doe off. Lewis, however, waved Doe's identification card—which he had taken from her purse—and said: " 'Don't stop, we're not dropping this bitch off,' " and " 'Fuck that. She fittin' to go hoe.' " Lewis removed one of Doe's shoes and dangled it outside the window. Lewis also threated to "get" Doe's "sister." Samuel took Doe's cell phone.
A woman in a nearby apartment heard honking and yelling. She looked out her window and saw a white sedan blocking traffic. One man was inside the car; two African American men were outside the car. The men outside the car were aggressively trying to "force" Doe into the car. Eventually one man pushed Doe—who was resisting and yelling—into the backseat. When Doe was inside the car, both men got in, and the car drove away. The neighbor was used to seeing prostitution activity in the area; she called 911 because she did not think that this was a "willing pickup." Oakland police officers received a dispatch about a possible kidnapping and saw the Lexus. One officer saw a man in the backseat trying to hold Doe down. The officers stopped the Lexus. The driver fled, but the officers detained defendants and another man. In the Lexus, officers found Doe's cell phone and identification card.
A prosecution expert testified on human trafficking, sexual exploitation, pimping, and pandering. The prosecutor played recordings of defendants' jailhouse telephone calls for the jury and the court admitted the recordings into evidence. In one call, Samuel told his wife, "[Y]ou know that . . . I'm not out there doing none of that shit though man. If anything, I'll put a bitch out there to go get some[.]" Samuel also said, "we didn't go to the track for that" but that he was probably facing kidnapping charges because he had told Doe what "she was about to go do," and claimed that she yelled for help because she "was in the car when the police got behind us" and wanted to "get off the hook." Samuel said Doe would probably not come to court because she "was a whore," and that she would be an unreliable witness if she did because she was a prostitute. Samuel also said Doe "was fittin' to go on the blade."
In another call, defendants' father said he had "put two and two together," when defendants had been "talking about hoes yesterday," and he assumed that they "probably went down there." In another call, Lewis's sister said "they [were] talking about Guerilla, Guerilla pimping and all kind of stuff." Lewis responded: "I ain't even be on that mother fucker chasing those raggedy ass bitches though."
The prosecution offered a certified change of plea form and probation minute order showing Lewis's 2003 forcible rape conviction (§ 261, subd. (a)(2)) and the court admitted the documents into evidence. The parties stipulated the documents proved the prior conviction.
Verdict and Sentence
The jury found defendants guilty of kidnapping (§ 207, subd. (a)) and of human trafficking for commercial sex (§ 236.1, subd. (b)). The court found the prior conviction allegations true. It sentenced Lewis to 21 years in state prison and Samuel to 88 years to life in state prison.
DISCUSSION
I.
Assumed Error in Admitting the Allegedly Improper Expert Testimony
Was Harmless
Lewis argues the court erred by admitting certain portions of expert testimony. Samuel contends trial counsel rendered ineffective assistance by failing to object to the testimony.
A. Background
The prosecution moved in limine to admit expert testimony on human trafficking, "specifically commercial sexual exploitation, pimping and pandering," including "recruitment, manipulation, roles of pimps vs. roles of prostitutes, . . . 'rules' of the typical relationship, terminology[,] and the overall sub-culture." The prosecution argued Oakland Police Officer Martin Ziebarth would explain a tactic defendants used called " 'Guerilla Pimping' to forcibly take . . . Doe for the purpose of working as a prostitute for the defendants and to provide them with all the proceeds of her prostitution."
At an Evidence Code section 402 hearing, counsel for Lewis objected to Ziebarth's testimony on several grounds, including that the testimony was inflammatory and unhelpful, that it was improper profile evidence, and that Ziebarth could not opine on defendants' intent. Samuel's attorney did not object. The court qualified Ziebarth as an expert and admitted his testimony. However, the court prohibited Ziebarth from testifying to "the ultimate facts of this case," i.e., that "based upon these facts that . . . [defendants] engaged in human trafficking" or opining on defendants' intent.
At trial, Ziebarth testified as an expert on human trafficking, sexual exploitation, pimping, and pandering. He testified the area around International Boulevard and 18th Avenue is a high prostitution area. Ziebarth defined prostitution terminology: "blade" and "track" refer to the area where the prostitutes work; "fitting to hit the blade" or " 'fittin' to hoe" means the prostitute is going to work. " 'Date' " is an agreement for a sex act in exchange for money. " 'Out of pocket' " refers to a prostitute who is not under a pimp's control or to a prostitute who disrespects a pimp.
Most prostitutes working on International Boulevard are controlled by pimps. A pimp will typically approach a prostitute who is not under a pimp's control soon after the prostitute arrives "on the track." A pimp approaches such a prostitute in two ways: "guerilla or Romeo-style." Guerilla pimping involves "force or violence . . . at the outset of contact," i.e., the pimp kidnaps the prostitute, "force[s] her into a vehicle," and tells "her that she's going to be working for him. Usually it will involve a sexual assault . . . something the pimp can do to demean the female."
The first style of pimping is sometimes referred to as "gorilla" pimping. Ziebarth did not know whether the term referred to "gorilla like the animal or guerilla like the soldier[.]" We adopt the parties' usage and refer to the first style as "guerilla pimping." In Romeo pimping, the pimp approaches a prostitute with a dating-type approach; the pimp gets the prostitute "attached to him and then kind of coerces her into the prostitution that way."
Pimps have all the control in the relationship: they establish the " 'rules of the game,' " which the prostitutes must follow. One common rule is a prostitute must not make eye contact with another pimp, and must walk away from other pimps. Oakland pimps generally require their prostitutes to have white or Hispanic males for customers, and to avoid young African-American men, who are thought to be pimps. Over counsel for Lewis's objection, Ziebarth testified a "prostitute is . . . almost always, prohibited from making eye contact or having a conversation with a young African American man." Pimps often keep a prostitute's ID as a "form of control."
The prosecutor asked Ziebarth "[h]ow many women that are engaged in prostitution told you that they stay away from African American men," and Ziebarth replied: "every time they've told me that if they're not allowed to date an African American, it's because they're suspected pimps." Outside the presence of the jury, Lewis's attorney moved to strike Ziebarth's testimony that "most pimps in Oakland are Black," arguing it was "racial profiling." The prosecutor disagreed. She claimed her question was not whether all pimps are African-American, but rather about the "common rules" in pimping. The prosecutor explained, "[t]his is not the type of racial profiling that . . . we talked about during the motions in limine . . . [¶] This is about rules that are specific to the Oakland area about going on dates with African American men." The court agreed, concluding Ziebarth's testimony was not profile evidence, and observing Ziebarth "didn't say all African Americans were pimps."
Later, the prosecutor asked Ziebarth: "Hypothetically if there was a woman who refused to speak, refused to make eye contact on the street, she was approached by someone who . . . said they were a pimp, they were an African American man, later had stolen her ID card, and then was forced into a vehicle and told that she was going to perform sex acts, in your expert opinion is that typical of any type of pimping situation?" The court overruled Lewis's objection and Ziebarth opined that situation would be a "form of guerilla pimping."
On recross-examination, the prosecutor asked Ziebarth, "You also described there being a difference between pimping and pandering and human trafficking. What is that difference to you?" The court overruled counsel for Lewis's objection and Ziebarth responded: "Pimping and pandering, although it can involve force or violence, there's subsections for pimping and pandering for that, but when someone is engaged in pimping and pandering of another person against their will that rises to the level of human trafficking under [section] 236.1(b), . . . or (c) depending on if they're an adult or minor."
B. Assumed Error in Admitting Ziebarth's Testimony Was Harmless
The jury convicted defendants of human trafficking, defined as "depriv[ing] or violat[ing] the personal liberty of another with the intent to effect or maintain a violation" of sections 266h and 266i, which prohibit pimping or pandering. (§ 236.1, subd. (b).) "Pimping is a crime committed when a defendant knows a person to be a prostitute and derives support or maintenance from the prostitute's earnings[.]" (People v. Guyton (2018) 20 Cal.App.5th 499, 506 (Guyton).) "Pandering is a crime that targets procuring a person for the purpose of prostitution[.]" (Id. at p. 506.) "[P]andering is conduct that '[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute.' " (People v. Leonard (2014) 228 Cal.App.4th 465, 488 (Leonard).)
Lewis claims the admission of Ziebarth's testimony was erroneous because Ziebarth: (1) informed the jury that Lewis "fit the profile of a pimp"; (2) testified Lewis had "the intent to sex traffic Ms. Doe"; and (3) incorrectly described the elements of sex trafficking. Samuel argues Ziebarth's testimony was inadmissible profile evidence. Assuming the trial court erred by admitting the allegedly objectionable portions of Ziebarth's testimony, any error was harmless because the evidence of defendants' guilt "was overwhelming" and the "additional effect on the jury from the allegedly improper testimony, if any, was negligible." (Leonard, supra, 228 Cal.App.4th at p. 494 [in pimping prosecution, erroneous admission of expert testimony was harmless]). The evidence established defendants violated Doe's personal liberty through the use of force, fear, and violence. (See § 236.1, subd. (h).) Doe testified Samuel ordered her to get into the Lexus, and when she did not comply, he forced her into the car, pushing her as she kicked and screamed. Doe also testified she was afraid. The neighbor corroborated Doe's testimony and testified two men were "aggressively" trying to "force" Doe into the car and that the situation was not a "willing pickup." In the car, Doe begged to be released, but Lewis refused, taking Doe's identification card and her shoe, and saying, " 'we're not dropping this bitch off.' " Samuel took Doe's cell phone, likely to prevent her from calling for help. (See Guyton, supra, 20 Cal.App.5th at p. 506 [substantial evidence supported human trafficking conviction].)
We fail to discern any appropriate purpose served by, among other things, the admission of expert testimony that prostitutes are generally prohibited from making eye contact with, or talking to, young African-American men, nor any legitimate purpose served by the expert's testimony that prostitutes have said "they're not allowed to date an African American . . . because they're suspected pimps." We conclude the admission of this testimony, however, was harmless because—as discussed below—the evidence of defendants' guilt was overwhelming. Additionally, we note that Doe testified, without relevant objection, that she believed African-American men in California are "mostly all pimps."
The evidence also demonstrated defendants possessed the intent to pimp or pander. Samuel told Doe he was a pimp, that he needed a new " 'girl,' " and that he was going to " 'make a lot of money' " when she committed sex acts for " 'white men.' " Lewis asked Nina if she needed a pimp, said Doe was "fittin' to go hoe," and that defendants were going to go "get" Doe's "sister." Defendants' jailhouse telephone calls provided additional evidence of their intent. (Leonard, supra, 228 Cal.App.4th at p. 488 [sufficient evidence of pandering]; People v. Zambia (2011) 51 Cal.4th 965, 981 [pandering conviction supported by substantial evidence where the defendant identified himself as a pimp and offered his services as a pimp]; People v. Maita (1984) 157 Cal.App.3d 309, 317-320 [sufficient evidence supported pimping and pandering convictions].)
The prosecutor did not—as defendants claim—spend a great deal of time discussing Ziebarth's testimony. Additionally, the court instructed the jury that they need not accept Ziebarth's testimony as true or correct (CALCRIM No. 332). "Considering this instruction, and after reviewing the entire record, we conclude [defendants have] not established prejudicial error." (Leonard, supra, 228 Cal.App.4th at p. 494.) Defendants' arguments to the contrary are not persuasive. This case is not, as defendants argue, similar to People v. Robbie (2001) 92 Cal.App.4th 1075, where a division of this court concluded the erroneous admission of "profile evidence" was prejudicial. In Robbie, the parties gave "starkly conflicting versions of events," the defense impeached the key prosecution witnesses, and the prosecutor "emphasized" the expert's testimony during closing argument. (Id. at pp. 1087, 1088.) Robbie is distinguishable.
We conclude the admission of Ziebarth's testimony was not prejudicial. Having reached this result, we reject Samuel's ineffective assistance of trial counsel claim premised on counsel's failure to object to Ziebarth's testimony. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1010.)
II.
Lewis's Challenge to the Admission of His Rape Conviction Fails
Lewis argues the court erred by admitting his rape conviction.
A. Background
In 2003, Lewis was convicted of forcible rape (§ 261, subd. (a)(2)). Over Lewis's objection, the court admitted the conviction under Evidence Code section 1108. It determined kidnapping to commit a sex offense (§ 209, subd. (b)(1)) was a "sex offense" under Evidence Code section 1108. The court conducted a thorough Evidence Code section 352 analysis and determined the conviction was "not prejudicial."
At the conclusion of its case-in-chief, the prosecution offered a certified change of plea form and probation minute order for the conviction, and the court admitted the documents. The parties stipulated the documents proved the prior conviction. The court instructed the jurors they may, but "are not required, to conclude from that evidence that [Lewis] was disposed or inclined to commit sexual offenses, and based upon that decision, also conclude [Lewis] was likely to [commit] [sic] kidnapping to commit a sex crime, as charged here. If you conclude that [Lewis] committed the uncharged offense that conclusion is only one fact to consider along with all the other evidence. It is not sufficient by itself to prove that [Lewis] is guilty of kidnapping to commit a sex crime. The People must still prove the charge beyond a reasonable doubt. Do not consider this evidence for any other purpose."
B. Assumed Error in Admitting the Rape Conviction Under Evidence Code Section 1108 Was Harmless
Lewis claims the court erred by admitting the rape conviction under Evidence Code section 1108, which "permits ' " 'consideration of . . . other sexual offenses as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.' " ' " (People v. Holford (2012) 203 Cal.App.4th 155, 182; People v. Falsetta (1999) 21 Cal.4th 903, 920 (Falsetta).) He claims kidnapping to commit a sex crime is not a "sex offense" listed in Evidence Code section 1108 and, as a result, the court erred by admitting the conviction.
We assume for the sake of argument the court erred in admitting the prior conviction under Evidence Code section 1108. Any error in admitting Lewis's prior conviction was undoubtedly harmless because it is not reasonably probable he would have obtained a more favorable result had that evidence not been admitted. (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1120.) The evidence used to prove the prior conviction was a single exhibit and did not consume an undue amount of trial time. Additionally, the court instructed the jury on the limited purposes for which it could use the evidence (CALCRIM No. 1191; see also Falsetta, supra, 21 Cal.4th at p. 920), and we presume the jury "followed the court's instruction." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Moreover, the jury did not find Lewis guilty of kidnapping to commit oral copulation, the only offense for which the uncharged misconduct was admitted. As we have already discussed, the evidence supporting Lewis's guilt was abundant and compelling, and there is no indication the admission of the conviction tempted the jury to punish Lewis for the uncharged offense, nor any indication the conviction improperly diverted the jury's attention from the charged offenses. Under the circumstances, we conclude the admission of the prior conviction was harmless.
We have considered and rejected Lewis's claim that the admission of the evidence pursuant to Evidence Code section 1108 violated his right to due process. (See, e.g., Falsetta, supra, 21 Cal.4th at p. 920.)
III.
Assumed Instructional Error Was Harmless
Lewis's final contention is the instructions on aider and abettor liability should have included CALCRIM Nos. 402 and 403, which define aider and abettor liability under the natural and probable consequences doctrine.
A. Background
The trial court instructed the jury on the general principals of aiding and abetting in CALCRIM No. 400 as follows: "A person may be guilty of a crime in two ways. One, he . . . may have directly committed the crime. I will call that person the perpetrator. Two, he . . . may have aided and abetted a perpetrator, who directly committed a crime. A person is guilty of a crime whether he . . . committed it personally or aided and abetted the perpetrator. [¶] Under some circumstances, if the evidence establishes aiding and abetting of one particular crime, a person may also be found guilty of other crimes during the commission of the first crime."
The second paragraph of CALCRIM No. 400 defines aider and abettor liability under the natural and probable consequences doctrine. When the court instructs the jury with this optional paragraph, it should also instruct the jury with CALCRIM Nos. 402 or 403. (Bench Notes to CALCRIM No. 400, p. 190.) As relevant here, defendants did not object to the prosecutor's proposed jury instructions, which omitted CALCRIM Nos. 402 and 403, nor request these instructions. The court also instructed the jury on conspirator liability. (CALCRIM Nos. 416-418.) Defendants do not challenge the conspirator liability instructions.
The court instructed the jury with CALCRIM No. 401, on intended crimes: "To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that, one, the perpetrator committed that crime. Two, the defendant knew that the perpetrator intended to commit the crime. Three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime. And four, the defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he . . . knows of the perpetrator's unlawful purpose and he . . . intends to, and does in fact, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that the defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether defendant was an aider and abettor. However, the fact that a person is present at the scene of the . . . crime or fails to prevent the crime does not, by itself, make him . . . an aider and abettor."
During closing argument, the prosecutor told the jury Samuel was the "perpetrator" and Lewis was an "aider and abettor under the aiding and abetting theory. To aid and abet, a defendant must know of the perpetrator's unlawful purpose and specifically intend to and in fact aid, facilitate, encourage, instigate the perpetrator's commission of the crime." The prosecutor did not mention the natural and probable consequences theory of aiding and abetting.
B. Assuming Lewis Preserved this Argument and the Court Erred, Any Error is Harmless
" '[A]n aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also "for any other offense that was a 'natural and probable consequence' of the crime aided and abetted." ' " (People v. Lisea (2013) 213 Cal.App.4th 408, 414.)
As stated above, the court instructed the jury on the first type of aider and abettor liability. It also instructed the jury on the second type of aider and abettor liability—based on the natural and probable consequences theory—but did not give CALCRIM Nos. 402 and 403. We assume for the sake of argument Lewis preserved this claim on appeal and that the court erred. We conclude any assumed error is harmless. (See People v. Prettyman (1996) 14 Cal.4th 248, 274 [harmless error in failing to instruct on natural and probable consequences theory].)
The prosecutor presented evidence that Lewis was liable based on a straight aiding and abetting theory. The prosecutor did not charge Lewis with, nor present evidence of, non-targeted crimes. Nor did the prosecutor argue Lewis was guilty based on the natural and probable consequences theory. The court instructed the jury to ignore inapplicable instructions. (CALCRIM No. 200; People v. Chism (2014) 58 Cal.4th 1266, 1299.) Thus, the court's failure to sua sponte instruct the jury with CALCRIM Nos. 402 and 403, was " ' "only a technical error which does not constitute ground for reversal." ' " (People v. Cross (2008) 45 Cal.4th 58, 67 [giving an instruction that is legally correct, but irrelevant or inapplicable, is mere technical error]; People v. Johnson (2016) 243 Cal.App.4th 1247, 1289, 1290 [assuming instruction was incomplete, any error was harmless].) Additionally, "[a] defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross, supra, at pp. 67-68.) Lewis has not satisfied this burden here; there was overwhelming evidence Lewis was guilty based on a standard aiding and abetting theory. Lewis's arguments in reliance on Rosemond v. U.S. (2014) 572 U.S. 65 are not persuasive.
We reject Lewis's cumulative error claim. As already discussed, "any error or possibility of error . . . was nonprejudicial and, considered together, they fare no better." (People v. Cole (2004) 33 Cal.4th 1158, 1232.)
IV.
The Court Did Not Violate Section 654 by Imposing Punishment for Samuel's
Kidnapping and Human Trafficking Convictions
Samuel claims section 654 precluded the court from imposing punishment on both of his convictions.
A. Background
The prosecution charged Samuel with kidnapping to commit a sex crime; the court instructed the jury he committed the kidnapping for the purpose of oral copulation. The prosecution also charged Samuel with human trafficking; the court instructed the jury he violated Doe's personal liberty while intending to commit pimping or pandering. The jury convicted Samuel of the lesser included offense of kidnapping, and of human trafficking for commercial sex. The court sentenced Samuel to consecutive prison terms for the convictions.
B. No Section 654 Error
" 'An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.' (§ 654, subd. (a).) The prohibition on multiple punishments in section 654 extends to a single act or an indivisible course of conduct. [Citation.] ' "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." ' " (Leonard, supra, 228 Cal.App.4th at pp. 498-499.)
" 'If [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' [Citation.] '[A] course of conduct divisible in time, although directed to one objective, may [also] give rise to multiple violations and punishment.' [Citations.] [¶] [Samuel] may raise the applicability of section 654 on appeal even if no objection was made in the trial court. [Citation.] We review the trial court's implied determination that section 654 does not apply for substantial evidence." (Leonard, supra, 228 Cal.App.4th at p. 499.)
The "argument" in Samuel's opening brief consists of one substantive paragraph. Without citing authority, Samuel contends: "By acquitting [him] of this charge, the jury effectively rejected the theory that the intent behind the kidnapping was oral copulation. Of course, there was only one remaining intent that the evidence supported — commercial sex. The human trafficking, a restraint on personal liberty for . . . commercial sex, was thus part of an indivisible course of conduct with the same intent and objective. Section 654 is therefore applicable here to bar punishment both for kidnapping and for human trafficking." We reject this claim because it is not supported by "analysis or argument[.]" (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366-367 & fn. 2; People v. Halim (2017) 14 Cal.App.5th 632, 644, fn. 8.)
We also reject the argument on the merits. As the Attorney General acknowledges, the jury's finding that Samuel was guilty of kidnapping, but not guilty of kidnapping with the intent to commit oral copulation showed the jury rejected the prosecutor's theory that defendants kidnapped Doe for the purpose of committing forcible oral copulation. But the jury's guilty verdict on the kidnapping offense did not necessarily establish the jury found there was only one objective for both that offense and the human trafficking offense. The record supports an implied finding that Samuel kidnapped Doe to punish her for ignoring and disrespecting him. Before forcing Doe into the car, Samuel told her she was "about to get [her] ass in the motherfucking Lexus" and "if [she] would have spoke[n] to [him], [she] wouldn't have had these problems." The record also supports an implied finding that Samuel's objective in committing the human trafficking offense was to obtain money by forcing Doe to prostitute herself for defendants. While holding Doe against her will inside the car, Samuel told Doe of his plan to pimp her out to "white men" so that she could make defendants "a lot of money[.]" Samuel's interpretation of the evidence does not demonstrate otherwise.
We conclude substantial evidence supports the court's implicit finding of separate and consecutive intents and objectives, i.e., first to punish Doe, and second, to force her to prostitute herself. (People v. Brents (2012) 53 Cal.4th 599, 618 [substantial evidence supported implied section 654 finding].) Accordingly, the court did not violate section 654 by imposing punishment for both of Samuel's convictions.
DISPOSITION
The judgments are affirmed.
/s/_________
Jones, P.J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.