People v. Simmons CA6 ( 2022 )

Filed 1/18/22 P. v. Simmons CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046379
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1577674)
v.
PATRICK LEO SIMMONS,
Defendant and Appellant.
In 2015, defendant Patrick Leo Simmons befriended the then 15-year-old victim,
had consensual and nonconsensual sex with her, assaulted her, and acted as her pimp
while she worked as a prostitute.1 Simmons was convicted by a jury of multiple crimes,
including human trafficking (Pen. Code, § 236.1, subd. (c)),2 sexual offenses, and several
offenses related to acts of domestic violence. The trial court sentenced Simmons to a
total term of 15 years to life consecutive to a determinate term of 28 years in prison.
On appeal, Simmons argues that his conviction for human trafficking under
section 236.1, subdivision (c) must be reversed because the statute violates the separation
of powers doctrine, equal protection, due process, and is unconstitutional. Simmons also
argues that the trial court erroneously admitted evidence of uncharged sexual offenses
and acts of domestic violence under Evidence Code sections 1101, subdivision (b), 1108
We use the term “victim” in this opinion to avoid confusion with a witness who
1
shares the same initials.
2
Unspecified statutory references are to the Penal Code.
and 1109. He further argues that the prosecution’s human trafficking expert gave an
improper opinion in response to a hypothetical question that closely tracked the facts of
the case. Moreover, to the extent these errors are not individually prejudicial, Simmons
claims that the cumulative prejudicial impact of the trial court’s errors requires reversal
of his convictions. Finally, Simmons argues that he is entitled to retroactive application
of the mental health diversion statute and that the trial court erred by imposing fines and
fees without determining his ability to pay. After briefing in this case was completed,
Simmons filed a supplemental brief arguing that his case should be remanded for
resentencing in light of recent legislative enactments that ameliorate punishment, Senate
Bill No. 567 and Assembly Bill Nos. 124 and 518, which amended sections 1170 and
654.
We agree with Simmons that he is entitled to resentencing in light of Senate Bill
No. 567 and reverse the judgment. Because we are remanding for resentencing,
Simmons may raise his objections concerning his inability to pay fines and fees to the
trial court. We reject his other claims of error.
I. BACKGROUND
A. The Amended Information
On January 11, 2018, the Santa Clara County District Attorney’s Office filed a
first amended information charging Simmons with human trafficking of a minor (§ 236.1,
subd. (c); count 1), pimping a minor under the age of 16 (§ 266h, subd. (b)(2); count 2),
providing or transporting a child for a lewd act (§ 266j; count 3), two counts of unlawful
sexual intercourse where the defendant is age 21 or older and the minor is under the age
of 16 (§ 261.5, subd. (d); counts 4 & 7), two counts of oral copulation with a minor under
the age of 16 (former § 288a, subd. (b)(2); counts 5 & 8), sodomy where the defendant is
age 21 or older and the minor is under the age of 16 (§ 286, subd. (b)(2); count 6), two
counts of inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); counts 9 & 13),
two counts of assault by means of force likely to produce great bodily injury (§ 245,
2
subd. (a)(4); counts 10 & 14), forcible rape (§ 261, subd. (a)(2); count 11), and forcible
oral copulation of a minor (former § 288a, subd. (c)(2)(C); count 12). It was further
alleged that the count of human trafficking (count 1) involved force, fear, violence,
duress, menace, or threat of unlawful injury to the victim. (§ 236.1, subd. (c)(2).)
B. The Trial
1. The Prosecution’s Case
a. The Charged Offenses
Around October 2014, victim met Simmons online through a dating website called
Fling and started to exchange messages with him. 3 Victim was 15 years old and
Simmons was 32 years old at the time. Simmons asked victim if she wanted to make
money. He also sent victim his phone number, but victim did not call or text him right
away.
In December 2014, victim sent Simmons a message on Fling and told him that she
was looking for a roommate. Simmons sent victim his phone number again and asked
her what she needed. Victim told Simmons that she was not financially secure, and she
was looking for somebody to help her “ ‘get on [her] feet.’ ” Victim sent Simmons her
phone number, and Simmons asked victim if she wanted him to help her make some
money. Victim responded, “ ‘Yeah, that would be great if you could.’ ” At the time,
victim thought that Simmons’s references to making money “had something to do with
sleeping with guys.” Victim, however, was not ready to engage in prostitution when she
first exchanged messages with Simmons over Fling. Victim later sent Simmons a text
message and told him that she was 15 years old.
In January 2015, victim met Simmons in person for the first time. Simmons
picked victim up at her school in his car and drove her to a hotel. Simmons and victim
An expert witness testified that Fling is “advertised as a dating or casual hook up,
3
casual sex connection site” but contains “quite a bit of prostitution activity.”
3
had consensual vaginal and anal sex at the hotel. Victim did not think that Simmons
knew that he had penetrated her anus during sex. Afterwards, Simmons took victim back
to her school.
Victim met Simmons again that same month. Simmons went to victim’s school to
pick her up, and he took her to a different hotel where they had consensual vaginal and
oral sex. Simmons told victim that she could make money by sleeping with other men,
but victim did not pay attention to this comment.
A few days later, victim called Simmons. During their conversation, Simmons
brought up the topic of making money. Victim understood that Simmons was talking
about prostitution.
On February 4, 2015, about a week after their last conversation, victim called
Simmons and told him that she was ready to make money. Later that same day, victim
called Simmons and told him to come pick her up at a class that she was taking at a
church. Simmons drove victim to a store to buy a phone and to a house in Oakland,
where they had vaginal sex. Victim’s mother filed a missing person’s report when she
did not return from her class.
The next day, victim received a few calls on her new phone. Simmons drove
victim to an “outcall,” but nobody showed up at the designated address.4 Sometime later,
Simmons drove victim to meet a “date” in Hayward. 5 Simmons also put an ad for
victim’s prostitution services on a website called Backpage. Simmons wrote the
language of the Backpage ad and gave victim a false name.
After staying in Hayward, Simmons took victim to San Francisco, where he was
violent with her for the first time. Simmons became angry after victim failed to pick up
4
An “outcall” occurs when a prostitute meets the person purchasing sex at his or
her location.
5
The prosecutor later asked victim if the term “dates” referred to “sex acts that the
customer pays for.” Victim answered yes.
4
some calls on her phone because she was getting ready for the date. Simmons hit
victim’s face with an open hand three times, threw her onto the bed, and punched her in
the back with closed fists. Victim’s face became swollen after the assault, and she used a
cold towel to try to reduce the swelling. Victim did not want to go forward with the date
after Simmons hit her, but she was afraid of Simmons and felt that she was obligated to
continue. Simmons told victim that he was going to take her back to her mother. Victim
replied that she did not want to go home to her mother, and she had nowhere else to go.
Simmons and victim stayed in San Francisco for several days, and victim had at least 10
and possibly more than 20 dates in the city.
After San Francisco, Simmons and victim returned to Hayward for a few days.
During that time, Simmons reposted victim’s Backpage ad multiple times, and victim
went on more than 10 dates.
Simmons and victim then traveled to Sunnyvale, where Simmons was violent with
victim a second time. Simmons became angry with victim after she looked at a
photograph on her phone that was sent by one of her dates. Simmons hit victim’s back
and threw her onto the floor and the bed. Shortly afterwards, victim went on a date.
Victim wanted to go on the date because being on the date separated her from Simmons.
Simmons was violent with victim a third time late one night in Sunnyvale.
Simmons and victim were in bed together, and Simmons insinuated that he wanted victim
to perform oral sex on him. Victim said no because she needed to get ready for a date.
Simmons slapped victim’s face with an open hand and punched victim’s arm with a
closed fist. Then, he told victim to come over and take her clothes off. Victim complied
and performed oral sex on Simmons. Afterwards, Simmons and victim had vaginal sex.
Victim did not want to have sex with Simmons, but she also did not want to have another
altercation with him. Victim cried on and off while having sex, and she felt like she was
forced to have sex with him. Victim estimated that on two or three other occasions,
Simmons asked her for oral sex when she made mistakes or got into trouble with him.
5
Simmons was violent with victim a fourth time when she did not follow his
directions. Victim could not recall exactly where the assault took place, but she was
waiting for Simmons in a hotel room. Simmons had told victim to wait by the window
and come down when he pulled his car around the hotel. Victim, however, was unable to
see Simmons’s car when he first pulled up to the hotel because there was a truck blocking
her view. Victim came out of the hotel when she saw Simmons standing outside of his
car, waving at her. After victim got into Simmons’s car, Simmons struck both sides of
her face. Both sides of victim’s face became swollen, and she had trouble seeing out of
one eye, which became “really blurry.” Victim said that the pain from her injuries was
“[l]ike a 9, 10” on a scale of one to 10, with 10 being the most painful. The swelling was
also “pretty bad” and “obvious.” Victim held ice to her injuries for the rest of the
evening, and she was unable to go on any dates until the next day.
After their stint in Sunnyvale, Simmons took victim to several other cities,
including Fresno and a city near Berkeley. Simmons posted a Backpage ad for victim
when they were in Fresno, and victim went on several dates while they were there.
According to victim, Simmons did not set a specific quota for how much money
she had to make each day. Simmons and victim discussed reaching a goal of making
$10,000, but it was unclear whether there was a set timeframe for victim to meet this
goal. Simmons set certain rules for victim which included: setting the rates for victim’s
dates, and requiring that they wear condoms; requiring victim to tell Simmons when each
date started and finished; requiring victim to put the money that she earned under the
Bible in the hotel or in the lining of the trash for Simmons to collect; requiring victim to
use a false name and a false birthday if she was ever approached by law enforcement; and
instructing victim to ask her dates if they were affiliated with law enforcement. Victim
had approximately seven dates a day when she was with Simmons. She typically worked
from around 5:00 or 6:00 a.m. until midnight, with some breaks in between. On her
6
phone, victim saved Simmons’s number under the name “D,” which was short for
“Daddy.”
Victim and Simmons had vaginal sex more than five times when they were
together. They also had oral sex more than five times.
When they were together, victim asked Simmons several times if she could
contact her family members, but he never gave her permission to do so. 6
2. The Police Investigation
a. The Initial Investigation
On February 12, 2015, Vallejo Police Department Sergeant Drew Ramsay was
assigned to victim’s case after her mother reported her missing. Victim’s mother had
found explicit photographs of victim on websites advertising prostitution. Sergeant
Ramsay located victim’s photographs on other websites, including Backpage, and he took
the phone number listed on the Backpage ad and discovered that it belonged to Sprint.
Sergeant Ramsay obtained an emergency ping order to locate the phone. On different
days, the phone pinged at locations in Sunnyvale and Hayward. Sergeant Ramsay also
searched for victim’s Backpage ad, and the ad once showed that she was in Fresno.
b. Simmons’s Arrest
Around February 23, 2015, victim exchanged text messages with a police officer
who was posing as a prospective date. When the “date” arrived, victim opened the door
and saw Santa Clara County District Attorney’s Office Investigator Jeff Nichols.
Initially, victim was reluctant to speak to the police, and she first gave Investigator
Nichols a false name and a false birthday. Victim was scared, and she later cried and
became emotional with the officers. Simmons was arrested outside the motel.
Victim, however, testified that she reached out to her mother’s ex-boyfriend a
6
few days after she had left with Simmons and told him that she was okay.
7
Through the text messages sent between Simmons and victim, officers determined
that victim had gone on 73 dates between February 15, 2015, and February 23, 2015.
c. The Backpage Ads and Simmons’s Fling History
Investigator Nichols received information from Backpage about victim’s ads,
including where and when they were placed. The records reflected that in February 2015,
there were multiple Backpage ads for victim’s services placed in Hayward, San
Francisco, Sunnyvale, and Fresno.
Investigator Nichols also served a search warrant on Fling seeking records related
to victim’s and Simmons’s usernames. Simmons discussed “ ‘making money’ ” in all of
his Fling conversations, which Investigator Nichols interpreted as solicitations for Fling
users to engage in prostitution and work for him. Simmons sent messages to several
users asking if they were interested in working as an escort. According to Investigator
Nichols, “escorting” is often used as a code word for “prostitution.”
d. Victim’s History and Prior Statements
Victim had a history of running away from home, and she was having problems
with her mother. She had once lied and said her mother was physically abusing her.
Before victim left with Simmons, she had also communicated with multiple other men on
the Fling website. She sent messages on Fling because she wanted to have sex with older
men, and she was trying to find someone to help her get away from home. Victim had
considered prostituting herself even before she met Simmons and had falsely told
Simmons that she had previously engaged in prostitution.
During the preliminary hearing, victim testified that Simmons never hit her or
forced her to prostitute herself. Victim also testified that before she met Simmons, she
had run away from home and had engaged in prostitution. However, victim testified at
trial that she had lied during the preliminary hearing.
Victim had conflicting emotions about Simmons. She was afraid of him, but also
felt an emotional connection or friendship with him. Victim felt guilty testifying against
8
Simmons because she did not think it was her place to “judge him over something that
happened over a 14-day period of time.”
3. Expert Testimony
Investigator Nichols was designated as an expert in human trafficking, pimping,
and pandering. He characterized Simmons’s activity on the Fling website as pimping and
pandering. Based upon a hypothetical set of facts that closely followed the evidence at
trial, Investigator Nichols also opined that a hypothetical person would have committed
human trafficking.
4. Prior Uncharged Sex Offenses and Acts of Domestic Violence
a. D.D.
D.D. met Simmons in 2004 in Fresno when she was approximately 19 or 20 years
old. D.D. had engaged in prostitution before she met Simmons. Simmons was dealing
narcotics, and D.D. noticed that other people were taking advantage of him. D.D. told
Simmons that he could go to her room if he needed a place to go and gave Simmons her
phone number.
Within a couple of days, D.D. and Simmons formed a “boyfriend and girlfriend”
relationship. However, the relationship quickly led to physical assaults. About a week
after they began their relationship, Simmons slapped D.D. after he counted the money
that he made from selling narcotics and came up short.
Shortly thereafter, Simmons was arrested. Simmons told her to prostitute herself
so that she could pay his bail. D.D. attempted to follow Simmons’s instructions, but he
was later released without having to post bail. Simmons again became violent and
physically attacked D.D. after hearing that she had been “riding around in his car with
somebody else” and smoking methamphetamine. Simmons slapped D.D.’s face and
punched her torso several times. Afterwards, Simmons told D.D. to clean herself up
because she needed to get ready to work. D.D. began to get dates and prostituted herself
on Simmons’s behalf.
9
D.D. wanted to run away, but she did not think she could hide from Simmons.
Simmons told D.D. to follow certain rules. D.D. had to stay within Simmons’s sight, and
she was not allowed to talk to anyone. D.D. had to give Simmons the money that she
made from prostitution.
One time, Simmons placed an order at a restaurant and requested that he wanted
his meal prepared a specific way. D.D. brought the food back to Simmons, but it was not
prepared to Simmons’s satisfaction, so he threw a metal can at D.D., which struck her
shoulder.
D.D. estimated that she went on 30 dates while she was with Simmons.
Sometimes, Simmons forced D.D. to go on dates. D.D. was also expected to earn a quota
of $500 per day. If D.D. did not meet her quota, she was expected to work longer hours.
One time, D.D. worked for almost 48 hours to make her quota. If D.D. returned before
she met her quota, Simmons would hit and choke her. Once, Simmons grabbed D.D. by
the throat and strangled her until she almost passed out.
At a certain point, Simmons was arrested again by the police, and D.D. went to the
other side of town to get a room with the help of an ex-boyfriend. After he was released,
Simmons found D.D. and became angry. Simmons broke the window so he could open
the door to D.D.’s room. He dragged her out of the room by her hair and punched her
torso and face several times with a closed hand. Simmons took D.D. to a friend’s house,
put D.D. naked in the bathtub, lit a cigarette, and placed the cigarette on her left forearm,
burning her. Simmons took a hammer and told D.D. that she should have her teeth
knocked out. He then punched her in the face several more times. Simmons insinuated
to D.D. that he caused someone to go missing in Clovis, a nearby city. Afterwards, D.D.
became even more fearful of Simmons.
Another time, D.D. asked Simmons if he was seeing any women behind her back,
and Simmons “snapped” and grabbed D.D.’s neck and throat. Simmons also once used a
telephone cord to strangle D.D. She had to use her fingernails and clawed Simmons’s
10
arm to get him to stop. Simmons also told D.D. that nobody would know if anything
happened to her. Toward the end of D.D.’s time with Simmons, he took away her cell
phone and her money.
During the one or two months that they were together, D.D. estimated that
Simmons assaulted her approximately 20 to 25 times. D.D. later asked a police officer
for help to get away from Simmons.
b. L.D.
L.D. met Simmons in 2010 when she worked as a prostitute in San Jose. L.D. was
around 21 years old at the time. L.D. saw that Simmons had been pulled over by the
police and offered him a place to stay. Simmons went to L.D.’s room, and they had
consensual sex. Simmons told L.D. that she could make more money if she went to
Southern California or Los Angeles. Simmons offered to bring L.D. there and back to
San Jose in time to pick up her two-year-old son.
L.D. agreed to go with Simmons, and she was with him for approximately three or
four days, from Friday to Monday. Simmons drove L.D. to Anaheim. Simmons told
L.D. that she should wear a dress, heels, and makeup. L.D. could not recall the exact
number of dates that she went on when she was with Simmons. She estimated that she
probably went on more than eight dates on Saturday. L.D. asked Simmons if she could
keep some of the money that she earned, but Simmons told L.D. that he needed to fix his
car. Simmons arranged for dates by posting ads on websites like Craigslist and
Backpage.
Simmons physically assaulted L.D. multiple times when they were together.
Simmons slapped L.D.’s face and the side of her body, and sometimes caused her nose
and lips to bleed. L.D. told Simmons that she wanted to go home, but Simmons replied
that L.D. had to finish making money. L.D. also told Simmons multiple times that she
needed to pick up her son. L.D. was afraid of Simmons, and she once tried to call 911 for
help.
11
L.D. eventually told a date about what was happening with Simmons and asked
the date to call law enforcement.
c. D.M.D.
D.M.D. met Simmons on the OkCupid dating website in 2014 when she was
around 23 years old. She communicated with Simmons for two weeks before arranging
to meet with him in person at his apartment in San Francisco, where they had consensual
sex.
Afterwards, D.M.D. told Simmons that she needed to get back to her two-year-old
daughter, who was being watched by a friend. D.M.D.’s friend had sent her messages
saying that her friend’s parents were going to call Child Protective Services (CPS)
because D.M.D. had been gone longer than expected and D.M.D. was not answering her
phone. D.M.D. was sending text messages to her friend when Simmons took her phone
away from her. D.M.D. started to cry and scream because she was afraid that CPS had
already gotten involved. She asked Simmons to give her a ride back home or order her a
taxi. Simmons punched D.M.D.’s face using a closed fist, hard enough that D.M.D.
heard ringing in her ears. He also punched D.M.D. in the stomach and back. Eventually,
D.M.D. fell to the floor. In total, Simmons struck D.M.D. seven or eight times.
Simmons told D.M.D. to take her clothes off, and instructed D.M.D. to put on his
clothing. Simmons went through D.M.D.’s wallet and took the money that was in her
purse. Simmons also took D.M.D.’s debit card and “made” her use the computer to
access her bank account so he could see how much money she had. D.M.D. told
Simmons that she did not remember her bank password.
Simmons left the apartment and took D.M.D.’s clothes to the laundromat to wash
them. After Simmons returned from the laundromat, he “made” D.M.D. log into her
bank account again. D.M.D. asked to see her phone, and Simmons told her that she was
not allowed to have her phone. D.M.D. told Simmons that she needed to get back to her
daughter, and Simmons replied that D.M.D. did not deserve to be a mother because she
12
was out with him and not with her daughter. Simmons then told D.M.D. that he was
going back to the laundromat to dry her clothes.
After Simmons left, D.M.D. waited for approximately 20 minutes before she ran
out of the apartment. D.M.D. went to a nearby apartment building, knocked on the door,
and asked someone to call 911. 7
d. P.D.
P.D. met Simmons through a phone chat line in 2009 when she was around 14
years old. Simmons told P.D. that he was 17 years old. P.D. told Simmons where she
lived, and he came to meet her at her school. P.D. got into Simmons car, and Simmons
drove her to a house in the Oakland area.
P.D. and Simmons watched television together. Later, Simmons asked P.D. to go
upstairs and asked her to get “naked for him.” P.D. initially refused. Simmons then used
“peer pressure” to get P.D. to comply, and he touched her and reached under her shirt.
P.D. continued to tell Simmons no, but he unbuttoned her pants. P.D. tried to move
Simmons’s hand, but he was stronger than her. P.D. continued to tell Simmons no.
Simmons had vaginal sex with P.D. P.D. laid there and waited “for it to be over.” At one
point, P.D. tried to push Simmons off.
Afterwards, P.D. went to the bathroom. Simmons asked P.D. why she was crying,
and she responded that she was not crying. P.D. and Simmons had sex again. P.D. did
not say no to Simmons this second time, but she did not want to have sex with him. P.D.
did not resist because she knew what would happen, and she did not think it was
necessary to fight him.
Afterwards, Simmons dropped P.D. off at a BART station. P.D. immediately told
one of her friends about what had happened, and she later reported the incident to the
police.
7
An audio recording of D.M.D.’s 911 call was played for the jury.
13
2. The Defense Case
Simmons called victim to testify as part of his defense. Victim testified that
before she met Simmons, she posted an ad as an “escort” on Backpage that falsely
indicated that she was 19 years old. According to victim, “escort” referred to prostitution
services. The ad described the services that victim was willing to offer and included
pricing. The ad stated, “ ‘I am a professional escort.’ ” Victim, however, could not recall
getting any calls in response to her ad.
3. Stipulations
The parties stipulated to the following: (1) On March 18, 2005, Simmons was
convicted in Fresno County of selling a person for illicit use and two counts of domestic
violence causing corporal injury; (2) On October 27, 2010, Simmons was convicted in
Orange County of two counts of pimping, pandering, selling a person for illicit use, and
misdemeanor battery, and two misdemeanor battery charges resulted in a hung jury;
(3) On August 29, 2014, Simmons was convicted in San Francisco County of attempted
pandering.8
C. The Verdict and Sentencing
On February 14, 2018, the jury found Simmons guilty of all the charged counts
and allegations, except it was unable to reach a verdict as to count 6, sodomy where the
defendant is age 21 or older and the victim is under the age of 16 (§ 286, subd. (b)(2)).
The trial court dismissed count 6 on the prosecutor’s motion.
8
The record reflects that the 2005 Fresno County convictions were for the
uncharged acts involving D.D., the 2010 Orange County convictions were for the
uncharged acts involving L.D., and the 2014 San Francisco County conviction was for
the uncharged acts involving D.M.D.
14
On June 4, 2018, the trial court sentenced Simmons to 15 years to life for his
conviction of human trafficking of a minor by force or fear (§ 236.1, subd. (c); count 1),
consecutive to a determinate term of 28 years for his remaining convictions. 9
The trial court imposed a restitution fine of $300 under section 1202.4,
subdivision (b) and imposed and stayed a matching parole revocation restitution fine
under section 1202.45. The trial court further imposed a $520 court operations fee under
section 1465.8, a $390 criminal conviction assessment under Government Code section
70373, and a $300 sex offender fine plus penalty assessments under section 290.3.
II. DISCUSSION
A. Challenges to Section 236.1, subdivision (c)
Simmons raises several challenges to his conviction of human trafficking under
section 236.1, subdivision (c). He argues that the statute violates California’s separation
of powers doctrine and further violates federal and state principles of equal protection
9
The determinate term of 28 years was composed of the following: four years for
unlawful intercourse where the defendant is age 21 or older and the minor is under the
age of 16 (§ 261.5, subd. (d); count 4), three years concurrent for oral copulation with a
minor under the age of 16 (former § 288a, subd. (b)(2); count 5), one year for unlawful
intercourse where the defendant is age 21 or older and the minor is under the age of 16
(§ 261.5, subd. (d); count 7), three years concurrent for oral copulation with a minor
under the age of 16 (former § 288a, subd. (b)(2); count 8), one year for inflicting corporal
injury on a cohabitant (§ 273.5, subd. (a); count 9), four years concurrent for assault by
means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 10), one
year for inflicting corporal injury on a cohabitant (§ 273.5, subd. (a); count 13), four
years concurrent for assault by means of force likely to produce great bodily injury
(§ 245, subd. (a)(4); count 14), 11 years for forcible rape (§ 261, subd. (a)(2); count 11),
and 10 years for forcible oral copulation of a minor (former § 288a, subd. (c)(2)(C);
count 12). In sum, the trial court imposed upper terms for counts 4, 5, 8, 10, 11, 12, and
14. The trial court also imposed and stayed upper sentences of eight years for pimping a
minor under the age of 16 (§ 266h, subd. (b)(2); count 2) and eight years for providing or
transporting a child for a lewd act (§ 266j; count 3) under section 654.
15
and due process. 10 We review the constitutionality of a statute de novo. (People v. Scott
(2016) 3 Cal.App.5th 1265, 1271-1272 (Scott).) As we explain, we find no merit to his
arguments.
1. Separation of Powers
First, Simmons argues that section 236.1, subdivision (c) violates the separation of
powers doctrine. Simmons argues that as worded, conduct that violates sections 266i,
subdivision (b) (pandering a minor) or 266h, subdivision (b) (pimping a minor) would
also violate section 236.1, subdivision (c), but the statutes authorize vastly different
punishments. 11 Thus, Simmons claims that the prosecutor’s decision to charge a crime as
human trafficking under section 236.1, subdivision (c) intrudes upon the judiciary’s core
function to impose appropriate sentences in criminal cases. We agree with Simmons that
the above statutes generally criminalize the same conduct, but we determine that he fails
to establish a violation of the separation of powers doctrine.
Section 266i, subdivision (a) provides in pertinent part that a person who procures
another individual for prostitution or does so by promises, threats, violence, or induces
another person to become a prostitute, is guilty of pandering. (§ 266i, subd. (a)(1)-(2).)
Section 266i, subdivision (b) provides that a person who does any of the acts described
under subdivision (a) with a person who is a minor is guilty of pandering a minor and is
subject to different criminal penalties depending on the minor’s age. (§ 266i, subd. (b).)
10
The Attorney General argues that Simmons has forfeited his separation of
powers claim because he did not raise it in the trial court. Assuming that his arguments
are not forfeited, we find them to be without merit as explained below.
11
The crime of human trafficking under section 236.1, subdivision (c) is
punishable by imprisonment for 15 years to life and a fine of not more than $500,000
when the offense involves force or fear. (§ 236.1, subd. (c)(2).) The crime of pandering
a minor is punishable by imprisonment for three, six, or eight years if the victim is under
16 years of age. (§ 266i, subd. (b)(2).) The crime of pimping a minor under section 266h
is punishable by imprisonment for three, six, or eight years if the victim is under 16 years
of age. (§ 266h, subd. (b)(2).)
16
Section 266h, subdivision (b) provides that a person who derives support or maintenance
from the proceeds of a person’s prostitution is guilty of pimping a minor if the person is a
minor. Section 236.1, subdivision (c) provides in pertinent part that “[a] person who
causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a
minor at the time of commission of the offense to engage in a commercial sex act, with
the intent to effect or maintain a violation of Section . . . 266h, 266i . . . is guilty of
human trafficking.”
Under the California Constitution, the separation of powers doctrine provides that
“[t]he powers of state government are legislative, executive, and judicial. Persons
charged with the exercise of one power may not exercise either of the others except as
permitted by this Constitution.” (Cal. Const., art. III, § 3.) “[T]he separation of powers
doctrine prohibits the legislative branch from granting prosecutors the authority, after
charges have been filed, to control the legislatively specified sentencing choices available
to the court. A statute conferring upon prosecutors the discretion to make certain
decisions before the filing of charges, on the other hand, is not invalid simply because the
prosecutor’s exercise of such charging discretion necessarily affects the dispositional
options available to the court. Rather, such a result generally is merely incidental to the
exercise of the executive function—the traditional power of the prosecutor to charge
crimes.” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 553 (Manduley).)
In this case, section 236.1, subdivision (c) does not confer the prosecutor with the
ability to control the sentencing choices available to the trial court after charges have
been filed. Rather, it permits the prosecutor to make a discretionary decision before
charges are filed to prosecute a case under section 236.1, subdivision (c) or under
sections 266i and 266h. Under Manduley, this is not a violation of the separation of
powers doctrine. (Manduley, supra, 27 Cal.4th at p. 553.)
Simmons acknowledges the California Supreme Court’s decision in Manduley,
but he argues that “the disparity in sentencing between the pandering and human
17
trafficking statutes, particularly in the case of minors, is so extreme” that section 236.1,
subdivision (c) must be interpreted as intruding upon the judiciary’s function to set
appropriate sentences. However, Simmons does not cite to any authority for the
proposition that the separation of powers is necessarily implicated merely because
different statutes that criminalize the same conduct have vastly different punishments. In
fact, Manduley stated that the separation of powers doctrine “ ‘recognizes that the three
branches of government are interdependent, and it permits actions of one branch that may
“significantly affect those of another branch.” ’ ” (Manduley, supra, 27 Cal.4th at
p. 557.) In this case, the prosecutor’s decision to charge a crime under section 236.1,
subdivision (c) significantly impacts the trial court’s sentencing choices after a defendant
is convicted, but the prosecutor’s discretion to charge crimes does not usurp the
judiciary’s function.
In sum, we find no merit in Simmons’s claim that section 236.1, subdivision (c)
violates the separation of powers doctrine.
2. Equal Protection and Due Process
Next, Simmons argues that the vastly different punishments authorized by
sections 236.1, subdivision (c) and 266i, subdivision (b) violate federal and state
principles of equal protection and due process. We disagree and find no equal protection
or due process violation.
“The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’
which is essentially a direction that all persons similarly situated should be treated alike.”
(City of Cleburne v. Cleburne Living Center (1985) 473 U.S. 432, 439.) Likewise, the
California Constitution states that “[a] person may not be . . . denied equal protection of
the laws.” (Cal. Const., art. I, § 7, subd. (a).)
Simmons argues that by violating section 236.1, subdivision (c) with force or fear,
he is similarly situated to a defendant who is prosecuted solely for pandering a minor
18
under section 266i, subdivision (b), but he faces a vastly harsher mandatory sentence of
15 years to life. Similar arguments have been rejected by the California Supreme Court,
which has concluded that “neither the existence of two identical criminal statutes
prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion
in charging under one such statute and not the other, violates the equal protection
principles.” (People v. Wilkinson (2004) 33 Cal.4th 821, 838 [statute criminalizing
battery on custodial officer did not violate equal protection principles]; see United States
v. Batchelder (1979) 442 U.S. 114, 124-125.) Wilkinson determined that “so long as
there is no showing that a defendant ‘has been singled out deliberately for prosecution on
the basis of some invidious criterion,’ that is, ‘ “one that is arbitrary and thus unjustified
because it bears no rational relationship to legitimate law enforcement interests[,]” ’ the
defendant cannot make out an equal protection violation.” (Wilkinson, supra, at
pp. 838-839; Batchelder, supra, at p. 125 [prosecutor may be influenced by penalties
available upon conviction “but this fact, standing alone, does not give rise to a violation
of the Equal Protection or Due Process Clause”].) Here, Simmons’s equal protection
claim fails because he does not allege that his prosecution was “ ‘motivated by improper
considerations.’ ” (Wilkinson, supra, at p. 839.)
We also find no merit in Simmons’s due process argument. Simmons argues that
his federal due process rights require that the disposition of his case complies with the
California Constitution, including the separation of powers doctrine. In other words,
Simmons’s due process claim is premised on his assertion that section 236.1,
subdivision (c) violates the separation of powers doctrine, which we have rejected.
Accordingly, we must also reject Simmons’s due process claim.
B. Evidence of Uncharged Sexual Offenses and Acts of Domestic Violence
Simmons argues that the trial court erroneously admitted evidence of uncharged
sexual offenses and acts of domestic violence under Evidence Code sections 1108 and
1109. He argues that Evidence Code sections 1108 and 1109 are unconstitutional, and, in
19
any event, the trial court abused its discretion under Evidence Code section 352 when it
admitted evidence of his prior acts. We conclude that the trial court did not err when it
admitted evidence of the uncharged acts.
1. Background
Before trial, the prosecutor filed a motion in limine seeking to introduce evidence
of Simmons’s prior acts and convictions. The prosecutor’s motion argued that D.D., L.D.
and D.M.D. should be permitted to testify under Evidence Code section 1101,
subdivision (b) to show Simmons’s intent to commit sexual offenses against victim. The
prosecutor also argued that the “prior incidents/convictions of domestic violence in the
2004 and 2010 cases,” which involved D.D. and L.D., should be admissible against
Simmons under Evidence Code section 1109. Finally, the prosecutor argued that
Simmons’s prior sexual offenses against P.D. should be admitted under Evidence Code
section 1108.
Simmons filed a motion in limine to exclude evidence of his prior acts. In part,
Simmons argued that Evidence Code sections 1108 and 1109 violate principles of equal
protection and due process.
At a pretrial hearing, the prosecutor stated that for counts 1 through 3, he intended
to offer the prior acts involving D.D., L.D., D.M.D., and P.D. under Evidence Code
section 1101, subdivision (b) to show a common design or plan, intent, motive,
knowledge, and, to a “more minimal degree,” preparation and opportunity. For counts 4
through 8, he intended to offer the prior acts involving P.D. under Evidence Code section
1101, subdivision (b). For counts 9, 10, 13, and 14, he intended to offer the prior acts of
domestic violence involving D.D., L.D., and D.M.D. under Evidence Code section 1109.
Finally, for counts 4 through 8, 10, and 11, he intended to offer the prior sexual offenses
involving P.D. under Evidence Code section 1108. In response, Simmons argued that the
evidence of his prior acts would be “extremely confusing” to the jury, and the evidence
should be excluded under Evidence Code section 352.
20
After considering the parties’ arguments, the trial court made the following ruling:
“I have considered the arguments of the parties with respect to this other-acts type of
evidence. I’ve read the offers of proof that are contained within the People’s in limine
motions and statement of facts. I’ve looked at the way in which it has been delineated
and described for purposes of each particular count and the reasons, therefore, and I
balanced all of this under Evidence Code Section 352 balancing the probative value of
the evidence to be offered for the various purposes with the concerns of substantial
prejudice, undue consumption of time, confusion of the issues, et cetera. [¶] I do find that
the People should be entitled to introduce this evidence under the various theories for
which they have proffered it . . . .”
2. Constitutionality of Evidence Code Sections 1108 and 1109
Simmons argues that Evidence Code sections 1108 and 1109 are unconstitutional
and violate principles of due process. We review this claim de novo. (Scott, supra, 3
Cal.App.5th at pp. 1271-1272.) And as we explain, we find that it is without merit.
“Character evidence, sometimes described as evidence of a propensity or
disposition to engage in a type of conduct, is generally inadmissible to prove a person’s
conduct on a specified occasion.” (People v. Villatoro (2012) 54 Cal.4th 1152, 1159;
Evid. Code, § 1101, subd. (a).) However, the Legislature has created certain exceptions
to the prohibition against admitting propensity evidence in cases involving sexual
offenses (Evid. Code, § 1108, subd. (a)) and domestic violence (id., § 1109, subd. (a)(1)).
Simmons acknowledges that the California Supreme Court rejected the argument
that Evidence Code section 1108 violates a defendant’s right to due process in People v.
Falsetta (1999) 21 Cal.4th 903 (Falsetta).12 Falsetta held that “the trial court’s discretion
to exclude propensity evidence under [Evidence Code] section 352 saves [Evidence
12
The California Supreme Court recently declined to revisit Falsetta in People v.
Baker (2021) 10 Cal.5th 1044, 1089-1090 (Baker).
21
Code] section 1108 from [a] due process challenge.” (Id. at p. 917.) Although the
California Supreme Court has not specifically ruled on the constitutionality of Evidence
Code section 1109, which is a parallel provision to Evidence Code section 1108, Courts
of Appeal have consistently concluded that Evidence Code section 1109 does not violate
principles of due process under the reasoning in Falsetta. (See, e.g., People v. Hoover
(2000) 77 Cal.App.4th 1020, 1024 (Hoover); People v. Johnson (2000) 77 Cal.App.4th
410, 420.)
We are bound by the Supreme Court’s decision in Falsetta and conclude that
Evidence Code section 1108 is constitutional. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450.) Likewise, we find that Falsetta’s analysis applies to Evidence
Code section 1109 and reject Simmons’s due process claim. (Hoover, supra, 77
Cal.App.4th at p. 1024.)
3. Admission of Uncharged Acts Under Evidence Code Section 352
Simmons contends that the trial court abused its discretion when it admitted P.D.’s
testimony under Evidence Code section 1109 and the testimony of D.D., L.D., and
D.M.D. under Evidence Code section 1108 because the evidence was substantially more
prejudicial than probative under Evidence Code section 352. Simmons argues that many
of the prior acts were dissimilar to his current charges. Moreover, he argues that some of
his prior acts were remote in time. Simmons does not specifically identify acts that
should have been excluded, nor does he expressly articulate at what point the evidence
became more prejudicial than probative. Instead, he generally argues that all the
uncharged sex offenses and acts of domestic violence should have been excluded. As we
explain, we disagree and conclude that the trial court did not abuse its discretion by
admitting the prior acts evidence.
a. General Legal Principles and Standard of Review
As we previously stated, the Legislature created certain exceptions to the general
prohibition against propensity evidence in cases involving sexual offenses (Evid. Code,
22
§ 1108, subd. (a)) and domestic violence (id., § 1109, subd. (a)(1)), so long as the
evidence is admissible under Evidence Code section 352. Evidence is admissible under
Evidence Code section 352 if its probative value is not “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.”
“We apply the deferential abuse of discretion standard when reviewing a trial court’s
ruling under Evidence Code section 352.” (People v. Kipp (2001) 26 Cal.4th 1100,
1121.)
A trial court “ ‘must engage in a careful weighing process under section 352’
when admitting propensity evidence.” (Baker, supra, 10 Cal.5th at p. 1098, quoting
Falsetta, supra, 21 Cal.4th at p. 917.) “Rather than admit or exclude every . . . offense a
defendant commits, trial judges must consider such factors as its nature, relevance, and
possible remoteness, the degree of certainty of its commission and the likelihood of
confusing, misleading, or distracting the jurors from their main inquiry, its similarity to
the charged offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but not all of the
defendant’s other . . . offenses, or excluding irrelevant though inflammatory details
surrounding the offense.” (Falsetta, supra, at p. 917; Baker, supra, at pp. 1098-1999
[applying factors described in Falsetta to determine whether evidence admitted under
Evid. Code, §§ 1108 and 1109 should have been excluded under Evid. Code, § 352].)
“ ‘ “[A] court need not expressly weigh prejudice against probative value or even
expressly state that it has done so, if the record as a whole shows the court was aware of
and performed its balancing functions under Evidence Code section 352.” ’ ” (People v.
Doolin (2009) 45 Cal.4th 390, 438.)
23
b. Relevant Factors
Simmons argues that applying the factors described in Falsetta, all the prior
uncharged acts should have been excluded as substantially more prejudicial than
probative. We proceed to address the various factors relevant to the admissibility of the
evidence.
First, we conclude that the evidence of the uncharged acts was probative because
the acts were similar to the charged offenses. “ ‘ “The principal factor affecting the
probative value of an uncharged act is its similarity to the charged offense.” ’ ” (People
v. Johnson (2010) 185 Cal.App.4th 520, 531 (Johnson); Falsetta, supra, 21 Cal.4th at
p. 917 [trial court should consider factors including “similarity to the charged offense”].)
Simmons argues that the probative value of the evidence was low because the
uncharged acts were dissimilar to the charged offenses. He claims that the acts involving
P.D. were dissimilar to the sexual offenses that he committed against victim because his
initial encounter with P.D. was violent from the start and P.D. testified that Simmons
forcibly had sex with her while she repeatedly said “no.” In contrast, Simmons argues
that his relationship with victim was initially consensual.
We agree with Simmons that the acts involving P.D. were not identical to the
sexual offenses that Simmons committed against victim. Nonetheless, Simmons’s
argument ignores the striking similarities between the acts involving P.D. and the charged
crimes. Simmons met P.D. and victim, who were both teenagers at the time, through
anonymous channels—P.D. through a phone chat line and victim through the Internet.
Both P.D. and victim described that Simmons met them at their schools and drove them
to a more secluded location to have sex. Although Simmons argues that his conduct with
P.D. was violent from the start, P.D. testified that she and Simmons initially watched
television together at a house, and Simmons first used “peer pressure” to get P.D. to
comply with his sexual advances. Simmons argues that victim’s testimony, unlike P.D.’s
testimony, did not contain explicit descriptions to resistance to Simmons’s sexual
24
advances, but victim testified that after the third time Simmons was violent with her, she
had vaginal sex with Simmons while intermittently crying. Contrary to Simmons’s
argument, there is evidence that Simmons forced himself on both P.D. and victim against
their will. Thus, the record reflects that in both situations, Simmons met an underaged
girl, befriended her, and made initially innocuous advances that ultimately led to forcible
sex. The fact that P.D. said no to Simmons from the start does not render the acts
substantially dissimilar to the offenses committed against victim.
Simmons claims that the acts of domestic violence described by L.D., D.D., and
D.M.D. were “more intense and severe” than the violence inflicted on victim by
Simmons, which rendered the acts dissimilar to the charged offenses and created the
potential for prejudice. For example, D.D. testified that Simmons punched her multiple
times in the abdomen and once threw a can at her shoulder. D.D. also testified that
Simmons used a cigarette to burn her arm and choked her. L.D. testified that Simmons
slapped her and hit the side of her body using both an open hand and a closed fist.
Finally, D.M.D. testified that Simmons once punched her in the face, abdomen, and back
multiple times, causing bruising.
We disagree with Simmons’s characterization of the uncharged acts of domestic
violence as being dissimilar. Victim described multiple acts of domestic violence where
Simmons slapped her with an open hand, punched her back with closed fists, and picked
her up and threw her down. Simmons’s assaults against victim also resulted in injuries,
and on one occasion, victim described that she even had difficulty seeing out of one eye
because of swelling.
Furthermore, the prior acts of domestic violence against L.D., D.D., and D.M.D.
were highly probative because they shared multiple characteristics with the charged
conduct against victim. The acts involving L.D. and D.D. involved Simmons assaulting a
woman that he was intimate with and was pimping. As with victim, Simmons’s violence
against L.D., D.D., and D.M.D. often erupted after they did something of which he
25
disapproved. Moreover, the fact that Simmons engaged in multiple acts of domestic
violence against four different women (L.D., D.D., D.M.D., and victim) that he had a
sexual relationship with “strengthens its probative value on propensity.” (People v.
Merchant (2019) 40 Cal.App.5th 1179, 1194 (Merchant).)
Simmons insists that the sheer number of prior acts made the evidence highly
prejudicial. On the contrary, the numerous prior acts of domestic violence enhanced
the evidence’s probative strength and did not necessarily render the acts unduly
prejudicial. (People v. Kerley (2018) 23 Cal.App.5th 513, 536 [“it is the frequency,
regularity, and severity with which [defendant] beat [the prior victim] that infuses this
propensity evidence with probative strength”]; see Merchant, supra, 40 Cal.App.5th at
pp. 1193-1194 [trial court did not abuse its discretion in admitting eight prior acts of
domestic violence]; see also Baker, supra, 10 Cal.5th at pp. 1090-1100 [trial court did not
abuse discretion in admitting multiple prior uncharged acts committed against six victims
under Evid. Code, §§ 1108, 1109, and 1101].) Evidence Code section 1109 “reflects the
legislative judgment that in domestic violence cases, as in sex crimes, similar prior
offenses are ‘uniquely probative’ of guilt in a later accusation. [Citation.] Indeed,
proponents of the bill that became section 1109 argued for admissibility of such evidence
because of the ‘typically repetitive nature’ of domestic violence.” (Johnson, supra, 185
Cal.App.4th at p. 532.) In this case, Simmons’s numerous prior acts of domestic violence
was compelling evidence of his propensity to react angrily and violently toward his
intimate partners when they disobeyed him or did something of which he disapproved.
Second, the extent of victim’s injuries demonstrates the nature of the charged acts
of domestic violence were not significantly less inflammatory compared with the
uncharged acts, and it is unlikely that evidence of the uncharged acts would have caused
undue prejudice. (People v. Branch (2001) 91 Cal.App.4th 274, 283-284 [unlikely that
jury would have been prejudiced by “inflammatory” testimony about prior uncharged
offenses because of similarity to the charged offenses] (Branch).) And even if the
26
uncharged acts were somewhat more inflammatory than the charged offenses, they were
neither extreme nor misleading. (People v. Harris (1998) 60 Cal.App.4th 727, 738
[evidence was “inflammatory in the extreme”] (Harris); see also People v. Christensen
(2014) 229 Cal.App.4th 781, 799 [prior offense was “more severe” than charged offenses
but “not so much so that it should be excluded without a consideration of other factors”].)
Third, we find that the probative value of the evidence was further enhanced
because the evidence came from sources independent of the charged offenses, the
testimonies of L.D., D.D., D.M.D., and P.D. (Falsetta, supra, 21 Cal.4th at p. 917
[probative value of uncharged offense is increased by independent sources of evidence].)
Fourth, we consider whether the absence of a criminal conviction for the
uncharged sexual offense involving P.D. weighs in favor of exclusion. (See Falsetta,
supra, 21 Cal.4th at p. 917 [trial court must consider “the likelihood of confusing,
misleading, or distracting the jurors from their main inquiry”].) There was nothing in the
record that indicated that Simmons was charged or convicted of crimes stemming from
the incidents involving P.D., which raises the potential for prejudice. (People v. Tran
(2011) 51 Cal.4th 1040, 1047 [“prejudicial effect of [uncharged act] evidence is
increased” if there is no criminal conviction].)
Simmons acknowledges that he was convicted of crimes related to the acts
involving D.D., L.D., and D.M.D., but he expresses concerns that some jurors may have
felt compelled to punish him further for his uncharged acts because the record reflects
that he received only minimal criminal sanctions for his many offenses. In part,
Simmons relies on Harris, supra, 60 Cal.App.4th 727. In Harris, the Court of Appeal
held that the jury may have concluded that the “defendant escaped appropriate rape
charges” when it was told that the defendant was convicted solely of burglary in
connection with a prior act that involved both a burglary and a sexual assault. (Id. at
p. 738.) We acknowledge that Simmons was not convicted of crimes for every act that
D.D., L.D., and D.M.D. described during trial. For example, it appears that Simmons
27
was convicted in 2014 of one count of attempted pandering for the acts that involved
D.M.D., but D.M.D. testified that Simmons also physically assaulted her.
Any prejudice, however, was allayed at least in part by the fact that the jury was
expressly told not to consider punishment in its deliberations, and we presume that it
followed this instruction. (See People v. Thomas (2011) 51 Cal.4th 449, 487.)
Furthermore, the potential for prejudice from the absence of prosecution is but one factor
for the trial court to consider when it weighs whether to admit evidence under Evidence
Code sections 1108 and 1109. This factor, however, is not by itself determinative.
Fifth, we find that “the burden on the defendant in defending against the
uncharged offense” does not weigh in favor of excluding the evidence. (Falsetta, supra,
21 Cal.4th at p. 917.) Simmons disagrees and argues that the evidence was unduly
prejudicial because the number of prior acts and the passage of time since the acts were
committed made it difficult for him to mount an appropriate defense. This argument,
however, is not supported by the record. Simmons concedes that he was on notice of the
charged offenses and knew the identity of the witnesses before trial. Yet there is nothing
in the record to indicate that Simmons sought a continuance to investigate the uncharged
acts, nor is there anything in the record to support Simmons’s claim that it was
impossible for him to effectively challenge the propensity evidence. In fact, the majority
of the uncharged acts (D.M.D. in 2014, L.D. in 2010, and P.D. in 2009) were not
significantly remote in time compared to the charged offenses, which took place in 2015.
Sixth, we conclude that the “degree of certainty” of the commission of the
uncharged acts also does not weigh in favor of exclusion. (Falsetta, supra, 21 Cal.4th at
p. 917.) Simmons argues that the alleged prior acts were solely established by the
testimonies provided by D.D., L.D., D.M.D., and P.D. which does not equal certainty of
commission. This argument ignores the other evidence in the record that supported the
uncharged acts. As we have stated, there was evidence that Simmons was convicted of
crimes for some of the acts he committed against D.D., L.D. and D.M.D. Furthermore,
28
an audio recording of D.M.D.’s 911 call was played for the jury. It is true, as Simmons
points out, that the majority of evidence came from the witnesses’ respective testimonies.
However, it was up to the jury to assess the credibility of D.D., L.D., D.M.D., and P.D.
and decide whether to believe them. (See People v. Maury (2003) 30 Cal.4th 342, 403
[determination of witness credibility within the exclusive province of jury].) Based on
this record before us, we cannot say that the testimonies provided by D.D., L.D., D.M.D.,
and P.D. were equivocal or lacked certainty.
Seventh, we determine that the “possible remoteness” of the prior acts do not
render them unduly prejudicial. (Falsetta, supra, 21 Cal.4th at p. 917.) Simmons
disagrees and specifically claims that the remoteness of the acts involving D.D., which
date back to 2004 (11 years before the charged offenses), warranted their exclusion.
Evidence Code section 1109, subdivision (e) provides that “[e]vidence of acts
occurring more than 10 years before the charged offense is inadmissible under this
section, unless the court determines that the admission of this evidence is in the interest
of justice.” Although the statute establishes a presumption that domestic violence acts
committed 10 years before the charged conduct is inadmissible, the statute also “clearly
anticipates that some remote prior incidents will be deemed admissible and vests the
court with substantial discretion in setting an ‘interest of justice’ standard.” (Johnson,
supra, 185 Cal.App.4th at p. 539.) “[T]he ‘interest of justice’ exception is met where the
trial court engages in a balancing of factors for and against admission under [Evidence
Code] section 352 and concludes . . . that the evidence was ‘more probative than
prejudicial.’ ” (Id. at pp. 539-540.) “To the extent a higher degree of scrutiny is called
for, it is the conclusion drawn from the balancing test, not the process itself, that must
change under subdivision (e).” (Id. at p. 539.) Thus, under the “interest of justice”
exception, evidence is admissible when the “probative value [of the prior acts] weighs
more heavily on [the] same scales [as Evidence Code section 352].” (Ibid.)
29
Simmons notes that the trial court made no express finding on whether the acts
involving D.D., which were more remote than the other uncharged acts, should be
admitted in the interest of justice. As a general rule, however, “ ‘ “a trial court is
presumed to have been aware of and followed the applicable law.” ’ ” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 398.) In this case, the striking similarities
between the present acts and the acts involving D.D. supported the trial court’s implied
finding that admitting the evidence was in the interest of justice. D.D., like victim, first
had a consensual sexual relationship with Simmons that evolved into a relationship where
Simmons acted as D.D.’s pimp. The relationship then went through cycles where
Simmons engaged in violence against D.D. when D.D. did something of which Simmons
disapproved.
Additionally, there is no specific time limit that establishes when a prior act is so
remote that it becomes inadmissible. (See Branch, supra, 91 Cal.App.4th at p. 284 [trial
court did not abuse discretion in admitting evidence of prior act that was committed 30
years before charged conduct].) The trial court in this case could have reasonably
determined that the multiple other prior acts of domestic violence committed against L.D.
(2010) and D.M.D. (2014) that occurred during the intervening years meant that the
remoteness of the prior acts of domestic violence against D.D. in 2004 did not render the
evidence significantly less probative. (See Johnson, supra, 185 Cal.App.4th at p. 534
[remote prior conduct is less probative of propensity than more recent misconduct
“especially . . . if the defendant has led a substantially blameless life in the interim”].)
Thus, the remoteness of the acts involving D.D. do not weigh in favor of excluding the
evidence.
c. The Evidence Code Section 352 Analysis
After carefully considering the record, we conclude that the trial court did not
abuse its discretion when it admitted evidence of the uncharged offenses under Evidence
Code sections 1108 and 1109. In fact, the trial court carefully considered Simmons’s
30
motions and performed the required weighing under Evidence Code section 352.
Certainly, the evidence of the prior uncharged acts was significant. However, the
prejudice contemplated by Evidence Code section 352 “ ‘is not so sweeping as to include
any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is
used in a section 352 context, merely because it undermines the opponent’s position or
shores up that of the proponent. The ability to do so is what makes the evidence
relevant. . . . “ ‘The “prejudice” referred to in Evidence Code section 352 applies to
evidence which uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the issues.’ ” ’ ” (People v. Doolin, supra,45 Cal.4th at pp. 438-439.)
Based on the totality of the circumstances, Simmons has not demonstrated that the
probative value of the prior uncharged acts was substantially outweighed by the risk of
undue prejudice under Evidence Code section 352. The record does not reflect that the
trial court exercised its discretion “ ‘in an arbitrary, capricious or patently absurd manner
that resulted in a manifest miscarriage of justice’ ” when it admitted the evidence.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)13
C. Improper Expert Opinion
Simmons argues that Investigator Nichols invaded the province of the jury and
improperly opined that a hypothetical 32-year-old male who committed acts that closely
13
Simmons also argues that the evidence of his prior acts should not have been
admitted under Evidence Code section 1101. We do not need to reach this argument
because we have found the evidence was admissible under Evidence Code sections 1108
and 1109. (See Branch, supra, 91 Cal.App.4th at pp. 280-281.)
Furthermore, we find no merit to Simmons’s derivative due process claim that
admission of the prior acts rendered his trial fundamentally unfair because evidence of
the uncharged acts was irrelevant or unduly prejudicial. As we have concluded, the
uncharged acts were relevant and admitting the evidence did not cause undue prejudice
under Evidence Code section 352.
31
tracked the facts of Simmons’s case was a pimp and a human-trafficker. We conclude
that the trial court properly admitted Investigator Nichols’s expert opinion.
1. Background
During trial, the prosecutor asked Investigator Nichols a lengthy and detailed
hypothetical question that closely tracked the facts of the current case. 14 The prosecutor
14
The prosecutor asked: “The situation is you have a 15-year-old girl[] she meets
a guy online. He’s 32 that guy brings up making money. Says I want to get some
money. He asks for a cell phone number, her cell phone number. He’s persistent. She
says she’s looking for a roommate in the correspondence. She also says, ‘Well, right now
I’m not in the best position financially. I’m not looking to use anybody or live off of
them. I just need somebody to help me get on my feet if not, I can completely understand
and maybe we can just get to know each other and start meeting every once in a while.’
“The guy offers to come get her. He picks her up from school and they have sex
twice. That second time once he picks her up, he talks to her again about making money
and that he has some friends who will pay or people he knows who will pay to have sex
with her.
“She then—sometime later she calls him up and says, ‘I’m ready to make money.’
He then picks her up that same day and gets her a cell phone. He gives her the idea that
they can make enough money to get an apartment together at some point. He starts
prostituting her the next day. Other than the dates, he does not work in order to make
money.
“This 15-year-old girl commits numerous commercial sex acts for money in Santa
Clara County, Alameda County, San Francisco County, and Fresno County. During this
time she’s assaulted—physically assaulted four times. There are a lot of rules in this
dynamic. The 15 year old can show no attitude. Can’t say no, can’t have sex with black
man, can’t look black men in the eye—can’t look at black guys, dates can use the towel
in the motel, dates can’t kiss her on the mouth.
“She has to text this individual, this guy, 32 year old whenever a date arrives and
tell him the length of time. She must put money in a specific locations among others
[sic].
“There are consequences if she breaks any rules like being assaulted, must give
him oral sex yelled at [sic]. This guy tells her to call him ‘Daddy.’ In the 15 year old’s
cell phone the 32 year old’s number is programmed in and it’s under the letter D. That
32 year old collects and keeps all the money after she—the 15 year old has the sex with
Johns. She averages about seven to ten per day. The 32 year old determines all prices
and time for the sex acts.
(continued)
32
asked Investigator Nichols whether he believed that a hypothetical 32-year-old man who
committed certain acts against a hypothetical 15-year-old victim would be considered a
pimp.
Defense counsel objected, arguing that the question called for an improper
opinion, which the trial court overruled. Investigator Nichols subsequently testified that
in his opinion, the hypothetical man “is a pimp but also more than that.” Investigator
Nichols further testified: “Because of the age of the minor under the age of 18 being
induced into prostitution, which has now become sexual exploitation for commercial
profit for money, that constitutes human trafficking.”
2. General Legal Principles and Standard of Review
“ ‘California law permits a person with “special knowledge, skill, experience,
training, or education” in a particular field to qualify as an expert witness (Evid. Code,
§ 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence
Code section 801, expert opinion testimony is admissible only if the subject matter of the
testimony is “sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” (Id., subd. (a).)’ ” (People v. Vang (2011) 52 Cal.4th 1038, 1044
(Vang).)
“ ‘When expert opinion is offered, much must be left to the trial court’s
discretion.’ [Citation.] The trial court has broad discretion in deciding whether to admit
or exclude expert testimony [citation], and its decision as to whether expert testimony
meets the standard for admissibility is subject to review for abuse of discretion.” (People
v. McDowell (2012) 54 Cal.4th 395, 426.)
“The period of time she’s with him is February 4th, 2015 to February 23rd, 2015.
And this 32 year old has three prior felonies for pimping and pandering. And in regard to
each of these priors, the individual was physically violent with the prostitutes.
“Given all these factors about this individual, this 32 year old, do you have an
opinion about whether he’s a pimp?”
33
3. Analysis
Simmons argues that Investigator Nichols’s response to the prosecutor’s detailed
hypothetical question was improper because it amounted to an assertion that he was
guilty of human trafficking.
“ ‘Generally, an expert may render opinion testimony on the basis of facts given
“in a hypothetical question that asks the expert to assume their truth.” ’ ” (Vang, supra,52 Cal.4th at p. 1045.) In Vang, the California Supreme Court held that use of
hypothetical questions “is subject to an important requirement,” that the “ ‘hypothetical
question must be rooted in facts shown by the evidence . . . .’ ” (Ibid.) Thus, a
“prosecutor’s hypothetical questions had to be based on what the evidence showed
[Simmons] did, not what someone else might have done.” (Id. at p. 1046.)
Here, Investigator Nichols never opined that Simmons was guilty of human
trafficking. His response to the prosecutor’s question was that the person in the
hypothetical question had committed human trafficking. This expert opinion was proper.
(See Vang, supra, 52 Cal.4th at pp. 1045-1046.)
Simmons argues that Vang noted that “there are dangers with hypothetical
questions.” (Vang, supra, 52 Cal.4th at p. 1051.) He insists that the hypothetical
question mirrored the facts of the case so closely that the “dangers” observed by Vang
were apparent, rendering Investigator Nichols’s opinion inappropriate. The “dangers”
noted by Vang included criticisms that hypothetical questions “might be unduly partisan
or posed in an argumentative or obfuscating manner, might be overlong, might
misrepresent or omit important facts, might confuse the jury, and might improperly be
used as a ‘closing argument midstream.’ ” (Ibid.) Vang expressly rejected the argument
Simmons makes here that a hypothetical question should not adhere closely to the facts of
a case, noting that “it is not a legitimate objection that the questioner failed to disguise
the fact the question was based on the evidence.” (Ibid.) Accordingly, the trial court did
34
not err when it permitted Investigator Nichols to answer the prosecutor’s hypothetical
question.
Simmons also claims that Investigator Nichols’s opinion was tantamount to a
directed verdict that deprived him of his right to a jury trial and to due process. However,
“expert testimony is permitted even if it embraces the ultimate issue to be decided.
(Evid. Code, § 805.)” (Vang, supra, 52 Cal.4th at p. 1049.) “The jury still plays a critical
role in two respects. First, it must decide whether to credit the expert’s opinion at all.
Second, it must determine whether the facts stated in the hypothetical questions are the
actual facts, and the significance of any difference between the actual facts and the facts
stated in the questions.” (Id. at pp. 1049-1050.) Here, the jury was instructed that it was
not required to accept the expert’s opinion as true. The jury was also instructed that an
expert may have been asked a hypothetical question, and that it is the jury’s role to decide
whether the assumed facts in the hypothetical are true. In sum, Simmons’s attempt to
analogize his case to a directed verdict is without merit.15
D. Cumulative Error
Simmons contends that the cumulative effect of the trial court errors in his case
deprived him of a fair trial. “[A] series of trial errors, though independently harmless,
may in some circumstances rise by accretion to the level of reversible and prejudicial
error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) We have found no errors. Because
there are no errors to cumulate, Simmons’s claim of cumulative error must be rejected.
E. Mental Health Diversion
Simmons argues that his convictions should be conditionally reversed so that
the trial court can conduct a pretrial mental health diversion eligibility hearing under
section 1001.36. Simmons argues that section 1001.36 as originally enacted by the
Because we conclude that Investigator Nichols’s opinion was properly admitted,
15
we do not need to reach Simmons’s argument that any error in admitting the testimony
was reversible per se.
35
Legislature applies to his case and that under section 3, we must presume that the 2019
amendments to section 1001.36 apply prospectively and do not render him ineligible for
diversion. He further claims that applying the 2019 amendments to section 1001.36 and
to his case would result in an ex post facto violation. Simmons’s argument raises
questions of law that we review de novo. (See People v. Whaley (2008) 160 Cal.App.4th
779, 792.) As we explain, we disagree and conclude that the 2019 amendments to section
1001.36, which render Simmons ineligible for pretrial mental health diversion, apply
retroactively; thus, Simmons is not entitled to a remand.
1. Legislative History of Section 1001.36
Effective June 27, 2018, after Simmons was sentenced in this case, the Legislature
enacted sections 1001.35 and 1001.36, which created a pretrial diversion program for
certain defendants with mental health disorders. (Stats. 2018, ch. 34, § 24.) Section
1001.36 provides that a trial court may grant pretrial mental health diversion if it finds
that the defendant is eligible because, among other factors, the defendant suffers from a
qualifying mental disorder, the disorder played a significant role in the commission of the
charged offense, and the defendant’s symptoms will respond to mental health treatment.
(§ 1001.36, subd. (b)(1)(A)-(F); People v. Frahs (2020) 9 Cal.5th 618, 626-627 (Frahs).)
The maximum period of diversion is two years, and if the defendant performs
satisfactorily in diversion, the trial court must dismiss the criminal charges that were the
subject of the criminal proceedings at the time of the initial diversion. (§ 1001.36,
subds. (c)(3), (e).)
On September 30, 2018, approximately three months after section 1001.36 was
enacted and became effective, the Legislature amended section 1001.36. (Stats. 2018,
ch. 1005, § 1.) In part, the amendments eliminated pretrial mental health diversion
eligibility for defendants who are charged with certain offenses, including defendants
who commit offenses of which a person, if convicted, would be required to register
pursuant to section 290 (except for a violation of section 314). (§ 1001.36,
36
subd. (b)(2)(B).) This amendment to section 1001.36 took effect on January 1, 2019.
(People v. Cawkwell (2019) 34 Cal.App.5th 1048, 1053-1054, review granted Aug. 14,
2019, S256113, review dismissed Aug. 26, 2020 (Cawkwell).) Simmons concedes that
his convictions in this case require him to register as a sex offender under section 290,
subdivision (c), and under the 2019 amendments, he is ineligible for pretrial mental
health diversion.
2. Section 3, the Estrada Rule, and the Rule of Lenity
Simmons argues that section 1001.36 as originally enacted by the Legislature
applies retroactively under the Estrada rule to his case. That version of section 1001.36,
however, is no longer in effect because the Legislature has since amended the statute.
Nonetheless, Simmons insists that the subsequent amendments to section 1001.36 cannot
apply to him under section 3.
“Generally, statutes are presumed to apply only prospectively.” (Frahs, supra, 9
Cal.5th at p. 627.) This presumption is codified by section 3, which states that “[n]o part
of the [Penal Code] is retroactive, unless expressly so declared.” “[T]he language of
section 3 erects a strong presumption of prospective operation.” (People v. Brown (2012)
54 Cal.4th 314, 324.) “However, this presumption is a canon of statutory interpretation
rather than a constitutional mandate.” (Frahs, supra, at p. 627.)
In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the California Supreme Court
carved out an exception to section 3 and held that “an amendatory statute lessening
punishment for a crime was presumptively retroactive and applied to all persons whose
judgments were not yet final at the time the statute took effect.” (Frahs, supra, 9 Cal.5th
at p. 624; citing Estrada.) Estrada reasoned that “ ‘[a] legislative mitigation of the
penalty for a particular crime represents a legislative judgment that the lesser penalty or
the different treatment is sufficient to meet the legitimate ends of the criminal law.
Nothing is to be gained by imposing the more severe penalty after such a pronouncement;
the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a
37
desire for vengeance. As to a mitigation of penalties, then, it is safe to assume, as the
modern rule does, that it was the legislative design that the lighter penalty should be
imposed in all cases that subsequently reach the courts.’ ” (Estrada, supra, at
pp. 745-746.)
Frahs concluded that Estrada’s inference of retroactivity applies to section
1001.36. (Frahs, supra, 9 Cal.5th at pp. 631-637.) Thus, we agree with Simmons that
section 1001.36 is retroactive. The issue is which version of the statute applies to
nonfinal cases.
Simmons does not cite to any authority, nor have we found any on our own, for
the proposition that the Estrada rule permits the retroactive application of a statute that is
no longer in effect. Frahs declined to address “the separate question of whether the 2019
amendments, which rendered defendants charged with certain crimes categorically
ineligible for diversion, apply retroactively.” (Frahs, supra, 9 Cal.5th at p. 640.) Frahs
did not need to consider this question because the defendant in that case did not commit a
crime that was categorically ineligible for diversion under the 2019 amendments. (See
id. at pp. 625-626 [Frahs defendant was found guilty of two counts of second degree
robbery and a lesser included misdemeanor offense of throwing a substance at a motor
vehicle without intent to cause injury]; § 1001.36, subd. (b)(2) [listing categories of
excluded criminal offenses].)
The resolution of Simmons’s claim lies with the proper application of the Estrada
rule. In People v. Vieira (2005) 35 Cal.4th 264 (Vieira), the California Supreme Court
determined that when a statute is retroactive under Estrada, the statute that applies to
nonfinal cases is the current version of the statute in effect at the time of the final
judgment. (Id. at p. 305.) In Vieira, the defendant, who committed his crimes in 1990,
argued on appeal that the trial court erred by imposing a restitution fine under former
section 1202.4. (Vieira, supra, at pp. 274, 305.) The Vieira defendant argued that he was
entitled to the benefit of a 1992 amendment to section 1202.4, which added language that
38
the imposition of a restitution fine was subject to a defendant’s ability to pay. (Vieira,
supra, at p. 305.) The California Supreme Court held that the defendant was not entitled
to the benefit of the 1992 amendment because it was repealed in 1994, and restitution
should be considered “under the current version” of section 1202.4 at the time of the final
judgment. (Vieira, supra, at p. 305.) Vieira stated that “ ‘[t]he key date is the date of
final judgment. If the amendatory statute lessening punishment becomes effective prior
to the date the judgment of conviction becomes final then, in our opinion, it, and not the
old statute in effect when the prohibited act was committed, applies.’ ” (Ibid., quoting
Estrada, supra, 63 Cal.2d at p. 744.) Applying the reasoning in Vieira to this case, the
2019 amended version of section 1001.36 is the version that applies to Simmons’s case
because that is the version that is in effect at the time of his final judgment. (See Vieira,
supra, at p. 305; see also Estrada, supra, at p. 744.)
As we have stated, Estrada reasoned that current ameliorative statutes should be
retroactive because “ ‘[a] legislative mitigation of the penalty for a particular crime
represents a legislative judgment that the lesser penalty or the different treatment is
sufficient to meet the legitimate ends of the criminal law.’ ” (Estrada, supra, 63 Cal.2d
at p. 745.) This rationale would be thwarted if we applied the original version of
section 1001.36 because the Legislature has since made it clear that it does not believe
that pretrial mental health diversion should apply to defendants who commit certain
crimes, including crimes that require a defendant to register as a sex offender under
section 290.
To support his argument that the 2019 amendments cannot apply to him, Simmons
relies on several cases, including People v. Perez (1998) 68 Cal.App.4th 346 (Perez),
abrogated on a different point as stated in People v. Mazurette (2001) 24 Cal.4th 789,
796. In Perez, the defendant committed his crime in 1996. (Perez, supra, at p. 349.) At
the time the defendant committed his offense, the drug diversion statute (former § 1000)
provided for pretrial diversion in certain drug cases without the requirement that the
39
defendant plead guilty to the charged offense. (Perez, supra, at p. 350.) By the time the
Perez defendant was sentenced in 1997, section 1000 had been amended to provide for a
deferred entry of judgment conditioned on a guilty plea. (Perez, supra, at p. 351.)
Accordingly, the Court of Appeal held that “application of the 1997 amendments to
section 1000 to pre-1997 conduct can be viewed as making a defendant’s punishment
more burdensome than the applicable punishment at the time of commission of the
alleged conduct.” (Id. at p. 356.) Perez observed that application of the 1997 version of
section 1000 “arguably is a prohibited application of an ex post facto law.” (Perez,
supra, at p. 356.)
Perez is distinguishable. There, the defendant committed his offenses when the
pretrial diversion program was already in effect. (Perez, supra, 68 Cal.App.4th at
p. 350.) Here, Simmons committed his offenses in 2015, before section 1001.36 was
enacted by the Legislature. Thus, the 2019 amendments to section 1001.36 could not
have made Simmons’s punishment “more burdensome than the applicable punishment at
the time of the commission of the alleged conduct.” (Perez, supra, at p. 356.)
Simmons also relies on People v. Buycks (2018) 5 Cal.5th 857, which reiterated
that section 3 creates “ ‘a strong presumption of prospective operation, codifying the
principle that, “in the absence of an express retroactivity provision, a statute will not be
applied retroactively unless it is very clear from extrinsic sources that the
[lawmakers] . . . must have intended a retroactive application.” ’ ” (Buycks, supra, at
p. 880.) The general proposition reiterated in Buycks—that section 3’s presumption of
prospective application applies when the Legislature has not made an express
retroactivity provision—is not applicable to this situation. There are no retroactivity
provisions in either the original version of section 1001.36 or the 2019 amendments. The
only way that section 1001.36 retroactively applies to Simmons is under the Estrada
rule’s exception to section 3 as “an amendatory statute lessening punishment for a
crime.” (Frahs, supra, 9 Cal.5th at p. 624; citing Estrada, supra, 63 Cal.2d 740.) And
40
here, under the current version of section 1001.36, Simmons is not entitled to pretrial
mental health diversion. 16
Finally, Simmons argues that imposing a retrospective intent on the 2019
amendments to section 1001.36 would violate the rule of lenity. (See Perez, supra, 68
Cal.App.4th at p. 357.) Under the rule of lenity, “courts resolve doubts as to the meaning
of a statute in a criminal defendant’s favor.” (People v. Cornett (2012) 53 Cal.4th 1261,
1271.) “ ‘[T]he rule of lenity is a tie-breaking principle, of relevance when “ ‘two
reasonable interpretations of the same provision stand in relative equipoise . . . .’ ” ’ ”
(People v. Manzo (2012) 53 Cal.4th 880, 889 (Manzo).) For example, the Court of
Appeal in Perez held that to the extent there was uncertainty over whether the Legislature
intended the 1997 version of section 1000 to apply retrospectively to pre-1997 conduct,
“the more favorable construction of that section to defendants would be to apply it only
to conduct committed on or after January 1, 1997.” (Perez, supra, at p. 357.)
Perez, however, did not apply the rule of lenity to resolve uncertainty over the
retroactive application of a statute that has since been amended and is no longer in effect.
Moreover, we do not believe that applying the rule of lenity in this context is appropriate.
The original and amended versions of section 1001.36 are silent about retroactivity, and
the current version of section 1001.36 is retroactive to defendants whose judgments are
not yet final under the Estrada rule. (Frahs, supra, 9 Cal.5th at pp. 631-637; see also
Vieira, supra, 35 Cal.4th at p. 305.) There is no competing interpretation of the
Legislature’s intent that “ ‘ “ ‘stand[s] in relative equipoise’ ” ’ ” to the Estrada rule’s
judicially created exception to section 3’s presumption of prospective application.
16
We express no opinion about whether section 3 requires a prospective
application of the 2019 amendments to those defendants who committed their offenses
during the brief period of time after section 1001.36 was originally enacted and before
the 2019 amendments took effect, as that issue is not before us.
41
(Manzo, supra, 53 Cal.4th at p. 889.) Therefore, there is no ambiguity for us to resolve
through the application of the rule of lenity.
3. Ex Post Facto Violation and Due Process
Simmons argues that if we conclude that the current version of section 1001.36
applies to his case, its application violates the state and federal ex post facto clauses.
Two appellate decisions have concluded that the retroactive application of the
2019 amendments to section 1001.36 does not violate the state and federal ex post facto
clauses. (People v. McShane (2019) 36 Cal.App.5th 245, 259, review granted Sept. 18,
2019, S257018, review dismissed Aug. 26, 2020 [finding no ex post facto violation]
(McShane); Cawkwell, supra, 34 Cal.App.5th at pp. 1053-1054 [same].)
In McShane, the Court of Appeal stated that “ ‘[t]he purpose of the ex post facto
doctrine is to ensure fair notice of the conduct that constitutes a crime and of the
punishment that may be imposed for a crime. [Citation.]’ [Citation.] Hence, ‘ “the
operative event for retroactivity purposes, and the necessary reference point for any ex
post facto analysis, is criminal conduct committed before the disputed law took
effect.” ’ ” (McShane, supra, 36 Cal.App.5th at p. 260.) McShane concluded that
applying the amended version of section 1001.36 to the defendant was not an ex post
facto violation because when the defendant committed his crime, he was not eligible for
pretrial diversion because section 1001.36 did not yet exist. (McShane, supra, at p. 260.)
Thus, McShane held that “the enactment of the murder exclusion [in section 1001.36] did
not change the consequences of his crime as of the time he committed it. The fact . . . that
he was briefly eligible for pretrial diversion under Penal Code section 1001.36, as
originally enacted, is irrelevant to the retroactivity analysis.” (Ibid.; see Cawkwell, supra,
34 Cal.App.5th at p. 1054 [“Cawkwell could not have relied on the possibility of
receiving pretrial mental health diversion when he” committed the charged offenses].)
We agree with McShane and Cawkwell that applying the amendments to section
1001.36 to Simmons is not an ex post facto violation. Simmons was sentenced before
42
section 1001.36 was enacted. The enactment of section 1001.36 and the subsequent
enactment of the 2019 amendments that narrowed the class of defendants eligible for
pretrial mental health diversion did not increase or decrease Simmons’s potential
punishment at the time he committed his crimes. In other words, the 2019 amendments
to section 1001.36 did not remove an ameliorative benefit as to Simmons. Nor did the
2019 amendments increase Simmons’s punishment. (See McShane, supra, 36
Cal.App.5th at p. 260.) Accordingly, there is no ex post facto violation.
For these same reasons, we conclude that Simmons’s assertion that applying the
2019 amendments to section 1001.36 deprives him of due process of law is without merit.
Simmons’s argument is premised on his claim that he had a “vested right to a diversion
hearing.” Simmons relies on Strauss v. Horton (2009) 46 Cal.4th 364, which held that
the retroactive application of Proposition 8 to invalidate previously lawful same-sex
marriages would conflict with principles of due process by depriving a person “ ‘of a
vested right without due process of law.’ ” (Id. at p. 473.) Simmons, however, had no
vested right in pretrial mental health diversion. When he committed his offenses in 2015,
section 1001.36 did not exist, and he could not have relied upon its provisions. And as
we have determined, to the extent that section 1001.36 is retroactive under the Estrada
rule, it is the current version—not the one that was briefly in effect while Simmons’s
appeal was pending—that is retroactive. (See Vieira, supra, 35 Cal.4th at p. 305.)
In sum, Simmons is not entitled to remand for consideration for pretrial mental
health diversion because he is ineligible under section 1001.36.
F. Retroactivity of Recent Amendments to Sections 1170 and 654
After briefing in this case was completed, Simmons filed a supplemental brief
arguing that recent legislative enactments that became effective January 1, 2022, Senate
Bill No. 567 and Assembly Bill Nos. 124 and 518, retroactively apply to his case under
the Estrada rule, and his case must be remanded for resentencing. The Attorney General
agrees that remand for resentencing is necessary.
43
1. Background
In this case, the trial court sentenced Simmons to 15 years to life for his conviction
of human trafficking of a minor by force or fear (§ 236.1, subd. (c); count 1), consecutive
to a determinate term of 28 years for his remaining convictions. As noted ante, footnote
8, the determinate term of 28 years included upper term sentences for counts 4, 5, 8, 10,
11, 12, and 14. The trial court also imposed and stayed upper sentences of eight years for
pimping a minor under the age of 16 (§ 266h, subd. (b)(2); count 2) and eight years for
providing or transporting a child for a lewd act (§ 266j; count 3) under section 654.
When imposing the upper term for count 4, the trial court found in part that the
aggravating circumstances outweighed the mitigating circumstances, and expressly
considered factors such as Simmons’s “status on probation and Post Release Community
Supervision at the time of the alleged offense, his criminal history regarding similar
conduct, that the Court believes to be callousness and cruelty [sic] with respect to the
offenses in this case . . . and the totality of the circumstances and the vulnerability of the
victim . . . .” The trial court did not specifically articulate a reason for selecting the upper
term for counts 5, 8, 10, and 14. As to counts 11 and 12, the trial court stated that it was
imposing “aggravated terms and consecutive terms” based on “the defendant’s status on
Post Release Community Supervision and probation. The crimes and objectives being
independent and separate of other counts committed at separate times, based on separate
transactions and occurrences, the defendant’s poor performance while on previous
supervision and the defendant’s record of engaging in criminal conduct of a similar
nature in the past.”
2. The Estrada Rule
As discussed ante, part E.2., in Estrada, the California Supreme Court held that
“an amendatory statute lessening punishment for a crime was presumptively retroactive
and applied to all persons whose judgments were not yet final at the time the statute took
effect.” (Frahs, supra, 9 Cal.5th at p. 624; citing Estrada, supra, 63 Cal.2d 740.)
44
“Estrada . . . stand[s] for the proposition that (i) in the absence of a contrary indication of
legislative intent, (ii) legislation that ameliorates punishment (iii) applies to all cases that
are not yet final as of the legislation’s effective date.” (People v. Esquivel (2021) 11
Cal.5th 671, 675.)
3. Retroactivity of Amendments to Procedure to Impose Upper Terms
At the time Simmons was sentenced, former section 1170 provided that when a
judgment of imprisonment is to be imposed and a statute specifies three possible terms,
“the choice of the appropriate term rests within the sound discretion of the court.”
(Former § 1170, subd. (b).) To inform the sentencing court’s decision, California Rules
of Court, rules 4.421 and 4.423 list various circumstances in aggravation (rule 4.421) and
mitigation (rule 4.423).
Senate Bill No. 567 amended section 1170, effective January 1, 2022. (Stats.
2021, ch. 731, § 1.3.) Under the newly-amended version of section 1170, when a
judgment of imprisonment is to be imposed and a statute specifies three possible terms,
“the court shall, in its sound discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in [section 1170, subdivision (b)(2)].”
(§ 1170, subd. (b)(1).) Section 1170, subdivision (b)(2) provides that the trial court may
impose a sentence exceeding the middle term “only when there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been stipulated to by
the defendant, or have been found true beyond a reasonable doubt at trial by the jury or
by the judge in a court trial.” Under section 1170, subdivision (b)(3), a trial court can
consider a defendant’s prior convictions when making its sentencing decision based on a
certified record of conviction without submitting the prior conviction to a jury.
Here, nothing in the statutory language or legislative history of Senate Bill
No. 567 indicates that the amendments to section 1170 were intended to apply
prospectively. Moreover, Senate Bill No. 567 is an ameliorative statute because it
45
provides for a presumptive middle term absent the presence of circumstances in
aggravation that either must be stipulated to by the defendant or proven beyond a
reasonable doubt to a jury or at a court trial. (§ 1170, subd. (b)(2).) Enacting restrictions
on the trial court’s discretionary ability to impose an upper term under section 1170
constitutes an ameliorative change in the law by reducing the possible punishment for
certain defendants. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303
[Estrada inference of retroactivity applies to Proposition 57 because it “reduces the
possible punishment for a class of persons”].) Finally, Simmons’s judgment is not yet
final, as it is pending on appeal. (Vieira, supra, 35 Cal.4th at p. 306.) Thus, we agree
with the parties that under Estrada, Senate Bill No. 567’s amendments to section 1170,
subdivision (b) apply to Simmons’s case.
Here, the trial court relied on multiple aggravating circumstances when imposing
the upper terms in this case, including Simmons’s “criminal history regarding similar
conduct.” Certainly, some of Simmons’s criminal history was supported by the certified
records of conviction that were admitted at trial, and a sentencing court can rely on
certified records of conviction without having to submit the prior convictions to the jury.
(§ 1170, subd. (b)(3).) However, the trial court also expressly relied on aggravating
circumstances that were not stipulated to by Simmons or found true by the jury as
required under section 1170, subdivision (b)(2), such as his “callousness and cruelty” and
the “vulnerability of the victim.” Moreover, we cannot discern from this record whether
the trial court would have found a departure from the middle term to be justified based
solely on prior convictions that were established by certified records. Thus, we agree
with the parties that reversal is required. 17
17
We note that in People v. Black (2007) 41 Cal.4th 799, the California Supreme
Court held that “the presence of one aggravating circumstance renders it lawful for the
trial court to impose an upper term sentence” under a prior version of section 1170.
(continued)
46
On remand, the Attorney General argues that the district attorney should be given
the opportunity either to prove the existence of aggravating circumstances before a jury
in compliance with section 1170, subdivision (b)(2) or to submit to resentencing based on
the state of the current record. The Attorney General claims that such an election is
proper because the district attorney was under no obligation to comply with the
requirements of the amended version of section 1170, subdivision (b)(2) at the time of
Simmons’s trial or at sentencing, and such an election would not violate either the double
jeopardy clause or constitute an ex post facto violation.
We agree with the Attorney General. Even if we assume that the double jeopardy
clause applies to sentencing factors, Simmons has never been tried on any of the
aggravating circumstances, rendering this constitutional provision inapplicable.
(See People v. Monge (1997) 16 Cal.4th 826, 832 [double jeopardy clause “ ‘protects
against a second prosecution or the same offense after acquittal’ ”].) Moreover, section
1170, subdivision (b)(2) does not increase the punishment for an offense because the
same statutorily-prescribed sentencing range remains intact. (See Collins v. Youngblood
(1990) 497 U.S. 37, 46 [ex post facto law is one that imposes an additional punishment to
(Black, supra, at p. 815.) The prior version of section 1170 considered in Black stated
that “ ‘the [trial] court shall order imposition of the middle term, unless there are
circumstances in aggravation or mitigation of the crime.’ ” (Black, supra, at p. 808.)
Thus, the prior version of section 1170 permitted the trial court to rely on aggravating
facts that were not found true by the jury. (Black, supra, at p. 808.) Under the Sixth
Amendment of the federal Constitution, “any fact that exposes a defendant to a greater
potential sentence must be found by a jury, not a judge, and established beyond a
reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham v.
California (2007) 549 U.S. 270, 281; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
Black concluded that so long as one aggravating circumstance was found by a jury
consistent with Sixth Amendment principles, judicial fact finding on additional
aggravating circumstances was not unconstitutional. (Black, supra, at p. 815.) Black
does not inform our decision because it is distinguishable. Unlike the prior version of
section 1170 at issue in Black, the amended version of section 1170 that applies to
Simmons’s case requires that the aggravating circumstances relied on by the trial court
be found true by a jury or stipulated to by a defendant. (§ 1170, subd. (b)(2).)
47
what was originally prescribed].) Thus, on remand, the district attorney should be given
the opportunity to prove the existence of aggravating circumstances in compliance with
the amended statute.
4. Retroactivity of Other Legislative Amendments
In addition to Senate Bill No. 567’s amendments changing the procedure to
impose an upper term under section 1170, Simmons argues that he is entitled to
retroactive application of amendments to section 1170 that were proposed by Assembly
Bill No. 124. Senate Bill No. 567, which was enacted after Assembly Bill No. 124,
incorporated the amendments to section 1170 that were proposed by Assembly Bill
No. 124. Because it was enacted last, Senate Bill No. 567 takes precedence over
Assembly Bill No. 124. (In re Thierry S. (1977) 19 Cal.3d 727, 738 [“the bill signed last
is the one which takes precedence”].)
As initially proposed in Assembly Bill No. 124, Senate Bill No. 567 added
subdivision (b)(6) to section 1170, which now provides the following: “Notwithstanding
[section 1170, subdivision (b)(1)], and unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that imposition of the lower term
would be contrary to the interests of justice, the court shall order imposition of the lower
term if any of the following was a contributing factor in the commission of the offense:
[¶] (A) The person has experienced psychological, physical, or childhood trauma,
including, but not limited to, abuse, neglect, exploitation, or sexual violence. [¶] (B) The
person is a youth, or was a youth as defined under subdivision (b) of Section 1016.7 at
the time of the commission of the offense. [¶] (C) Prior to the instant offense, or at the
time of the commission of the offense, the person is or was a victim of intimate partner
violence or human trafficking.” (Stats. 2021, ch. 731, § 1.3.)
Simmons also argues that he is entitled to retroactive application of the
amendments to section 654 made by Assembly Bill No. 518. At the time Simmons was
sentenced, former section 654, subdivision (a) provided in pertinent part that “[a]n act or
48
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.” Effective January 1, 2022, Assembly Bill No. 518 amended section 654,
subdivision (a), removing the requirement that an act or omission that is punishable by
multiple statutes be punished under the statute providing for the longest term of
imprisonment. (Stats. 2021, ch. 441, § 1.) Section 654, subdivision (a) now reads in
pertinent part: “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.”
We need not decide whether section 1170, subdivision (b)(6) or the amended
version of section 654 retroactively applies to Simmons’s case. Because we are
remanding the matter for resentencing, the trial court on remand may reconsider all of its
prior sentencing decisions as to all counts under the statutes that are now in effect, which
includes both section 1170, subdivision (b)(6) and the amended version of section 654.
(See People v. Buycks, supra, 5 Cal.5th at p. 893 [“when part of a sentence is stricken on
review, on remand for resentencing, ‘a full resentencing as to all counts is appropriate, so
the trial court can exercise its sentencing discretion in light of the changed
circumstances’ ”].)
G. Fines and Fees
Finally, we address Simmons’s claims regarding fines and fees. Relying on
People v. Dueñas (2019) 30 Cal.App.5th 1157, Simmons argues that the trial court
erroneously imposed fines and fees without considering his ability to pay them. We do
not need to resolve this issue because we are already remanding the matter to the trial
court. Should he choose to do so, Simmons can raise an argument regarding his ability to
pay his fines and fees on remand.
49
III. DISPOSITION
The sentences are vacated as to counts 2, 3, 4, 5, 8, 10, 11, 12, and 14, and the
judgment is reversed and remanded for the sole purpose of resentencing. On remand, the
trial court may reconsider all of its sentencing decisions, and the district attorney may
elect to prove the circumstances in aggravation to permit the imposition of upper terms as
required under Penal Code section 1170, subdivision (b)(2) or to submit to resentencing
on the current record.
50
___________________________________
Wilson, J.
WE CONCUR:
______________________________________
Elia, Acting P.J.
______________________________________
Grover, J.
People v. Simmons
H046379