People v. Moore CA1/3 ( 2021 )

Filed 4/22/21 P. v. Moore CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A159252
v.
LONNEL MOORE, (Alameda County
Super. Ct. No. 18CR015986)
Defendant and Appellant.
Defendant Lonnel Moore appeals after a jury convicted him of human
trafficking of a minor (Pen. Code,1 § 236.1, subd. (c)), soliciting a child under
the age of 16 to prostitute (§ 266h, subd. (b)), inducing a child to engage in a
lewd act (§ 266j), and committing a lewd act upon a child (§ 288, subd. (c)(1)).
His sole contention on appeal is that substantial evidence did not support the
jury’s special allegation finding that the trafficking involved force, fear, fraud,
deceit, coercion, violence, duress, menace, or threat of unlawful injury.
(§ 236.1, subd. (c)(2).) We affirm.
1 Further section references are to the Penal Code.
1
FACTUAL AND PROCEDURAL BACKGROUND
In June 2018, 15-year-old K.D.2 ran away from home. A person she
knew sent defendant to pick her up. K.D. had never met defendant before
and told him she was 19 years old. Defendant said he was 34 years old.
K.D. had worked as a prostitute prior to meeting defendant. They
began living together in a motel room in Oakland, and K.D. continued
engaging in prostitution and gave the money she earned to defendant.3 K.D.
always used condoms with customers but had unprotected sex with
defendant. She loved defendant and believed they were in a relationship.
K.D. used various drugs with defendant, including cocaine, marijuana,
and “ecstasy,” the latter of which she started using for the first time with
him. Defendant provided K.D. with ecstasy, and she it took “almost every
day” and “was never really sober.” The drug heightened her emotions,
affected her perceptions, and kept her awake for prolonged periods.
During the time K.D. was with defendant, they fought often, and
defendant would sometimes hit her and call her names, like “ ‘Bitch’ ” and
“ ‘Stupid.’ ” She explained that most of the time when they fought and
defendant hit her, they were high and she was numb and felt nothing, but
2 Pursuant to the California Rules of Court, rule 8.90, governing “Privacy
in opinions,” we refer to the victim by her first and last initials as indicated in
the record and briefing.
3 In a July 27, 2018, text message admitted into evidence, K.D. told
defendant, “ ‘I really wanna be down wit you and run up a bag 4 you but at
the same time I wish you would treat me different not just like any as hoe
because really I’m not even a hoe I’m just a hustla because I can do hella shit
besides hoe period I chose 2 hoe aint nobody force me so therefore lemme live
my life and do other shit.’ ” Asked at trial by the defense if the statement “ ‘I
choose to ho. Ain’t nobody force me’ ” meant that K.D. was “choosing to
prostitute” herself “[a]nd giving [defendant] the money,” K.D. responded,
“Yes.”
2
after she sobered up, she felt pain from his blows. K.D. left defendant three
times, and not knowing anyone in Oakland, went to other pimps in the area.
However, she “always came back to [defendant]” and was never away from
him for longer than a day or two.
On or about August 6, 2018, defendant kicked K.D. out of the motel
room and told her “to go outside to work.” Before leaving, K.D. took some
ecstasy, which caused her to become delusional and paranoid, and she ended
up spending the night on the streets. She eventually spoke with defendant
on the phone and falsely claimed to have money but said he could not have it
because she was done with him. A short time later, defendant showed up in a
car where K.D. was walking. She had been hiding moments before
defendant’s arrival, but had been lured out of her hiding place by a telephone
call from a woman who said she was there to pick K.D. up. Defendant
quickly exited the vehicle and K.D. started to run, but defendant grabbed her
arm and forced her into the vehicle. Defendant punched K.D. and angrily
asked her where the money was.
Back at the motel room, defendant and K.D. argued, and defendant
said, “ ‘I smell the money.’ ” He struck K.D. with a small metal bat on her
legs and thighs and momentarily placed a pillow over her face so that she
could not breathe. Fearing for her life, K.D. fought back and was able to
escape.
K.D. called her mother, who called 911. K.D. eventually flagged down
two police officers, one of whom noticed that her shirt was torn and her thigh
bruised. K.D. told the officers, “The guy I was messing with[,] . . . he tried to
kill me in the room. . . . [¶]. . . [¶]. . . He tried to kill me. Like this dude.
He’s a pimp, I was the hoe. . . . [¶]. . . [¶]. . . He just tried to, like
. . . [¶]. . . [¶] kill me because I had no money.” Defendant was eventually
3
arrested, and his cell phone was seized and its contents extracted and
reviewed. On the date of his arrest, defendant was 36 years old.
Defendant was charged with human trafficking of a minor (§ 236.1,
subd. (c); count one); soliciting a child under the age of 16 to prostitute
(§ 266h, subd. (b); count two); inducing a child to engage in a lewd act (§ 266j;
count three); kidnapping (§ 207, subd. (a); count four); and committing a lewd
act upon a child (§ 288, subd. (c)(1); count five.) The information contained
an enhancement allegation on count one that the trafficking involved the use
of force, fear, deceit, violence, menace, or threat of unlawful injury. (§ 236.1,
subd. (c)(2).)
At trial, Oakland Police Officer Martin Ziebarth of the department’s
vice and child exploitation unit testified as an expert on prostitution,
pimping, and pandering. He opined that pimps typically discipline females
working for them with tactics including beatings, forcing them to work in cold
weather, and forcing them to work for long periods of time. A pimp will
commonly use drugs like ecstasy to keep a female working for him.
Ziebarth further testified that pimps often use “psychological”
techniques to control the females working for them, such as engaging in a
sexual relationship, which causes them to feel that they are in love with their
pimps and that any physical abuse is deserved. Ziebarth pointed to specific
text messages between defendant and K.D. that were indicative of a sexual
relationship. He also discussed the July 27 text message (see fn. 3, ante),
stating, “In my opinion, [K.D.] is, she doesn’t want to commit acts of
prostitution anymore. She wants to be with [defendant], so there’s a
romantic attachment that she has to him. But she doesn’t want to prostitute.
And she’s offering to do other things for him to earn money. Throughout all
of the text messages, it was obvious that he was involved in selling marijuana
4
and pills. So she’s offering to sell dope for him instead of prostituting. But
she doesn’t want to leave him.”
According to Ziebarth, other text messages between defendant and K.D.
showed she “didn’t have a choice” when dealing with him. In one message,
defendant wrote, “Bitch, either get dressed and get ready to go outside and
get some money, or you could leave. I ain’t got time for this BS.” Ziebarth
noted that K.D. had to ask permission “for pretty much everything” including
buying a bag of chips. In a series of text messages sent early one morning,
K.D. told defendant: “ ‘I’m not fitten to be out here all night.’ ” “ ‘Please at
least come get me.’ ” “ ‘I’m not turning up no dates, so why keep me out
here?’ ” “ ‘Where you at? Please, daddy. It’s too cold.’ ”
The jury found defendant guilty on counts one, two, three, and five, and
found the enhancement allegation on count one to be true. The trial court
sentenced defendant to state prison for three years on count five plus 15
years to life on count one, and stayed the sentences on counts two and three.
Defendant appealed.
DISCUSSION
When considering a challenge to the sufficiency of the evidence to
support a conviction or a sentencing enhancement, “ ‘ “we review the entire
record in the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is reasonable, credible,
and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” ’ ” (People v. Williams (2015) 61
Cal.4th 1244, 1281.) In making this determination, we do not reweigh the
evidence or the credibility of witnesses. (People v. Quintero (2006) 135
Cal.App.4th 1152, 1162.) “Unless it is clearly shown that ‘on no hypothesis
5
whatever is there sufficient substantial evidence to support the verdict’ the
conviction will not be reversed.” (Ibid.)
Section 236.1 defines “coercion” to include “providing and facilitating
the possession of a controlled substance to a person with the intent to impair
the person’s judgment.” (§ 236.1, subd. (h)(1).) In determining whether there
was coercion, courts “shall” consider “[t]he total circumstances, including the
age of the victim” and “the relationship between the victim and the
trafficker.” (Id., subd. (i).)
Viewing the record in the light most favorable to the judgment, a
reasonable juror could have found beyond a reasonable doubt that
defendant’s trafficking of K.D. involved drug-induced coercion. K.D.’s
testimony that defendant supplied ecstasy for her to take every day, leaving
her “never really sober,” and her descriptions of the effects of the drug (e.g.,
altered perception, prolonged wakefulness) supported an inference that
defendant intended to impair her judgment and keep her performing sex
work for long hours. A reasonable juror could also have credited Ziebarth’s
testimony that pimps commonly use drugs like ecstasy to control the females
working for them to conclude that defendant engaged in similar conduct.
Finally, the significant 20-year age gap between defendant and K.D. provided
further support that the trafficking was coercive. Thus, we conclude there
was substantial evidence of coercion. (§ 236.1, subds. (c)(2), (h)(1).)
We also conclude substantial evidence supported a finding of duress.
Section 236.1 defines “duress” to include “a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to cause a reasonable
person to acquiesce in or perform an act which he or she would otherwise not
have submitted to or performed.” (§ 236.1, subd. (h)(4).) As with coercion, in
6
determining duress, courts must consider the relationship and age gap
between the trafficker and the victim. (Id., subd. (i).)
Defendant contends substantial evidence of duress was lacking because
his prior acts of violence towards K.D. were unrelated to her sex work and
merely established that they had a combative relationship. We disagree.
Viewing the evidence favorably to the judgment, a reasonable juror could
have concluded that K.D. was under duress based on defendant’s prior acts of
violence against her, his controlling treatment (e.g., forcing K.D. to work all
night in the cold, requiring her to ask permission for everything), and the 20-
year age gap between them. That is, given the circumstances in which
defendant had repeatedly hurt and controlled K.D., a reasonable person in
her position would fear violence, hardship, or retribution from defendant if
she did not continue to engage in prostitution and turn over her earnings.
Indeed, K.D. was so fearful of defendant during the August 6 incident that
she hid and then ran when she first saw him.
Defendant emphasizes K.D.’s testimony that she was a prostitute
before meeting him, as well as her July 27 text message and related
testimony that she chose to continue engaging in prostitution with him.4
However, viewing the record in the light most favorable to the judgment, a
reasonable juror could have disbelieved K.D.’s testimony on the voluntariness
of her actions (CALCRIM no. 226 [jurors may believe some parts and
disbelieve other parts of witness’s testimony]) and instead credited Ziebarth’s
testimony that it is common for juveniles with pimps to “refer to them as a
boyfriend and usually say, ‘It was my decision. I made the choices.’ ”
4 We note that consent by a minor is not a defense to criminal
prosecution under section 236.1 (§ 236.1, subd. (e)), but we consider
defendant’s argument as it relates to the element of duress for purposes of
the special allegation finding under section 236.1, subdivision (c)(2).
7
Ziebarth’s testimony in this regard was bolstered by the evidence that
defendant had manipulated K.D. into thinking they were in a romantic
relationship. Furthermore, as Ziebarth observed, the July 27 text message
suggested that K.D. no longer wanted their relationship to involve
prostitution. The fact that it continued to do so, along with the evidence of
defendant’s violent and controlling behavior, provided substantial evidence
for a reasonable juror to conclude beyond a reasonable doubt that defendant’s
trafficking of K.D. involved duress.
DISPOSITION
The judgment is affirmed.
8
_________________________
Fujisaki, Acting P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Wiseman, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
9