People v. Clark CA2/3 ( 2021 )


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  • Filed 12/27/21 P. v. Clark CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,                                                    B305709
    Plaintiff and Respondent,                             Los Angeles County
    Super. Ct. No. MA072529
    v.
    PERRY TERRELL CLARK et al.,
    Defendants and Appellants.
    APPEALS from judgments of the Superior Court of
    Los Angeles County, Kathleen Blanchard, Judge. Affirmed.
    James Koester, under appointment by the Court of Appeal,
    for Defendant and Appellant Perry Terrell Clark.
    Rudolph J. Alejo, under appointment by the Court
    of Appeal, for Defendant and Appellant Javionna Starlena
    Richmond.
    Xavier Becerra, Attorney General, Lance E. Winters,
    Chief Assistant Attorney General, Susan Sullivan Pithey,
    Assistant Attorney General, Michael R. Johnsen and Yun K. Lee,
    Deputy Attorneys General, for Plaintiff and Respondent.
    _________________________
    1
    A jury convicted Perry Terrell Clark and Javionna Starlena
    Richmond of human trafficking for commercial sex acts. Three
    of the victims were minors. As to two of the victims, the jury
    found true a sentencing factor that the crimes involved force,
    fear, fraud, deceit, coercion, violence, duress, menace, or threat
    of unlawful injury. The jury also convicted Clark of robbing
    one of the victims. On appeal, Clark and Richmond assert
    instructional error and insufficient evidence. We affirm.
    FACTS AND PROCEDURAL BACKGROUND
    1.    The four victims
    a.    Wendy S.
    In 2014, when she was 14, Wendy ran away from her
    group home and started working as a commercial sex worker.
    In the spring of 2015, Wendy met Clark, whom she knew as
    “P.C.” Clark told Wendy “he had a girl working for him” and
    Wendy could make up to $1,500 a day.
    Richmond, whom Wendy knew as “J.J.,” contacted her
    on Facebook or by text. Richmond was Clark’s “baby mother.”
    Richmond asked, “[O]h, can I pull up on you and we’ll smoke?”
    Wendy agreed. The next day, Wendy and her friend called Clark
    to pick them up. Clark picked her up, they “got drunk and . . .
    smoked,” and then Clark took her to Los Angeles “to go on the
    blade.”1
    Wendy worked about 10 hours that night. Clark “felt like
    he needed more money.” He told Wendy, “[Y]ou’re not leaving.
    You have to stay and have to make more money.” This pattern
    continued. Sometimes Wendy took “pills just trying to stay up.”
    Wendy gave the money she made to Clark “immediately”; she
    kept none of it.
    1     The “blade” or the “track” is “the streets where prostitutes
    walk on,” such as Figueroa in Los Angeles.
    2
    Clark began to rent rooms at the E-Z8 motels in Lancaster
    and Palmdale. Then Richmond “post[ed]” Wendy on Backpage,
    a website where you could “post a picture of yourself” “if you want
    to sell your body.”2 Clark made Wendy “do in-calls.” He also
    took her to “out-calls,” where you “go[ ] to their place.” Wendy
    was getting 20 “dates” a day. Clark and Richmond were setting
    her schedule and arranging her dates, and Clark set the prices.
    Richmond “was involved the whole time.” She created
    Wendy’s ads for Backpage and took calls from the tricks.3 The
    Backpage ads had Richmond’s phone number. Richmond was
    “on the phone getting us dates.” She also collected the money.
    Wendy never told Richmond no because—for example—if she
    didn’t give Richmond the money, Clark “was gonna do whatever
    it takes to take it from me.”
    One time, Wendy told Clark she didn’t want to have
    any more dates. He laughed and told her to get out of the car.
    When she didn’t, he “lock[ed] the doors,” pulled her hair, and
    “hit[ ] [her] against the window in the car.” “And he told me that
    I was gonna work for him.” This type of thing was common;
    it happened “[w]henever he would be mad.”
    If Wendy kept any of the money she got from dates, Clark
    beat her. Once Wendy got an extra $40 as a tip. She hid it in her
    dirty clothes. When Clark found it he “lift[ed her] up” from the
    bed and “threw” her. “[T]hen he started kicking [her] and
    stomping [her] when [she] was on the floor.” Clark called Wendy
    2    Backpage.com is now defunct. (People v. Oliver (2020)
    
    54 Cal.App.5th 1084
    , 1092 (Oliver).)
    3     A “trick” or a “John” is “the guy [who] comes and pays
    for the services.”
    3
    “a stupid bitch.” Richmond was there when Clark assaulted
    Wendy. She didn’t say anything, do anything, or try to stop him.
    Another time Wendy had $20 in her makeup pouch.
    Clark found it, took it, and beat her up.
    Wendy worked out of motel rooms about 80% of the time.
    She was not allowed to leave the room without permission. If she
    tried to leave, she “got beat.”
    Wendy worked for Clark and Richmond for 18 to 24
    months. Eventually, Wendy felt Clark was “really, really
    making” her “catch a lot of dates,” so she called her uncle and
    cousin to pick her up.
    A couple of months later Richmond messaged Wendy on
    Facebook. Richmond picked her up and drove to a McDonald’s.
    Clark walked up and got into the car. Richmond drove them to
    her (Richmond’s) house. Clark told Wendy, “ ‘You’re gonna work
    for me.’ ” Wendy said she was not going to work for him. Clark
    “snatched” her phone and broke it, then took her purse with
    her wallet in it. He “sock[ed]” her with a closed fist in the face,
    forehead, eye area, nose, and jaw 40 to 50 times. He also kicked
    her 10 to 15 times. Wendy was “dripping blood everywhere.”
    Even a year later, Richmond was still contacting Wendy about
    working for her and Clark.
    b.    Lauren R.
    Detectives interviewed Lauren R. in the autumn of 2017.
    Lauren identified Clark and Richmond in photo six-packs.
    However, at trial, Lauren at first claimed not to remember
    anything beyond the fact that she had participated in commercial
    sex at the E-Z8 in Lancaster. She testified “P.C.” and “J.J.”
    had been at the E-Z8 with her, but initially she claimed not
    to recognize Clark or Richmond in the courtroom. After the
    prosecutor showed Lauren a transcript of her preliminary
    4
    hearing testimony, she admitted Clark had picked her up
    at 77th and Figueroa in Los Angeles.
    Clark had been following Lauren in his car and she
    “confronted the car.” Lauren got into the car, and she and Clark
    had a conversation about “[m]aking money”; to her that meant
    “[p]rostitute.” “He said to make money with him” and he was
    going to take care of her. She was 16 at the time.
    Lauren felt “very dazed, confused; out of it.” “It felt
    like something had been in [her] arm”; she believed Clark
    put a needle in her arm. Clark admitted he’d put something
    in Lauren’s arm but he never said what it was. Lauren “[woke]
    up” on the freeway, and Clark said they were going to Lancaster.
    Clark said Lauren “would try it out” and, once she’d made
    $10,000 for him, she could leave Lancaster if she wished.
    Richmond got Lauren a room at the E-Z8 in Lancaster
    and took her to get some clothes and get her nails done. Lauren
    figured she was going to have to “prostitute” in exchange.
    Richmond took Lauren’s picture and posted ads; Lauren started
    “catching dates.” Lauren did both in-calls and out-calls.
    Richmond drove her to the out-calls.
    Clark and Richmond determined how much Lauren would
    charge. She gave them all the money. Sometimes Clark punched
    Lauren in the stomach with a balled-up fist. She couldn’t
    remember why he hit her, but “it was usually, in [her] opinion,
    over money.” Clark asked Lauren for “a blow job a couple [of]
    times” and she felt she couldn’t say no. She couldn’t say no to
    Richmond either “[b]ecause they’re a team, and I’m working for
    both of them.” Lauren feared not doing what Richmond asked
    because “[s]he was like the shot caller.” “She arranged the
    dates,” took Lauren to out-calls, got her clothes. “[I]t seemed like
    she was . . . the one in control.”
    5
    Lauren stayed with Clark and Richmond between a week
    and a month. She did not feel she could come and go as she
    pleased. When Lauren ran out of methamphetamine, Clark
    would get some for her. Lauren was “catching dates non-stop”;
    she was “doing a lot more” drugs than she had before coming
    to Lancaster because the drug was her “happy place.” It also
    helped her stay awake so she could catch more dates. Eventually
    a customer helped Lauren get away.
    c.     Faythe S.
    Faythe S. met Clark at a gas station in about 2015. She
    was 18. They exchanged information. About a week later they
    met up, hung out, and smoked. Clark explained he was a pimp,
    “he had hoes”; he told Faythe she could work for him. Faythe
    started working for Clark on Sepulveda, where there were
    “[h]oes, pimps, tricks.”
    Richmond went to Sepulveda with Faythe four or five
    times. On Sepulveda, Faythe would have seven or “maybe more”
    dates in one night. Richmond also got Faythe rooms on
    Sepulveda and at the E-Z8 in Palmdale. Faythe’s Backpage ads
    had a contact email of queenjavey185@gmail.com and a telephone
    number of 323-900-9279. Those were not Faythe’s email or phone
    number.
    In a 24-hour period, Faythe would have four dates for cash
    and ten or more using bitcoin. Clark gave her “crystal meth” so
    she could stay up. Richmond provided Faythe with condoms and
    got her clothes. Clark and Richmond set Faythe’s prices and she
    gave them the money. “I ha[d] to give it to them.” She never
    kept any for herself.
    Sometimes, when Faythe “finished all the condoms” she’d
    been given, she could stop getting dates for that night. But other
    times Clark told her she had to keep working. She didn’t feel she
    could say no; Clark “was very angry” and would “curse [her] out”
    6
    and call her “bitch” and “ho” when she was “being lazy.” “And
    [he] told me I needed to work—go back to work.” Once, Faythe
    was raped on Sepulveda. She told Clark and Richmond. Clark
    told her to go back to work. Faythe was scared Clark was going
    to get violent.
    Faythe saw how Clark treated Wendy: “He treated her
    bad.” He yelled at her. When asked, “[W]as it violent?” she
    responded, “Yes.”
    When asked if she “could really stop working for” Clark
    and Richmond, Faythe answered, “Yeah.” When asked if she
    was allowed to come and go as she pleased, she again said,
    “Yeah.” Faythe testified she didn’t have a car but she could
    use Richmond’s and Clark’s car.
    Faythe worked for Clark and Richmond for five or six
    months. In 2015 or 2016 she went to jail. Sometime later,
    Richmond texted her to see if she was “interested again.”
    Faythe told Richmond she was not.
    On cross-examination Faythe testified Clark and Richmond
    didn’t “force[ ] [her] into being a commercial sex worker for
    them.” She said Clark never hit her.
    d.      Carly C.
    On October 17, 2017, Santa Ana Police Department
    Detective James Marquez was working vice around 4:00 a.m.
    in an area that’s “the most famous track in Orange County.”
    Marquez saw a young woman—later identified as Carly C.—
    standing on a corner in the “track area of the city.” She was
    “paying attention to motorists passing by.” Marquez watched
    Carly for about 45 minutes and saw her “contact two separate
    vehicles . . . occupied by solo male drivers.”
    Marquez spoke with Carly later at the police station. She
    was 17. He asked her if he could scroll through her cell phone
    and she agreed. Based on text messages on the phone, Marquez
    7
    “was concerned that she was being pimped out or trafficked.”
    He saw contacts for “P.C.” and “J.J.” When Marquez asked Carly
    if her pimp “was treating her all right,” she replied, “[Y]eah, it’s
    nothing.” But then she seemed to “[catch] herself” and denied
    she had a pimp. Carly admitted she had a “male friend” to whom
    she gave money but she didn’t want to name him. She also told
    Marquez that “J.J. had somebody watching over her while she
    was at the track to make sure that she was safe.”
    In 2017 Detective Gary Furuyama was part of the sheriff’s
    department’s human trafficking task force. On October 30, 2017,
    he posed as a “commercial sex buyer” under the supervision of
    Detective Julia Levenson. Furuyama texted and called a number
    listed in a Backpage ad for a “hot Brazilian” in Lancaster. He
    was told the charge would be $60 for “[a] blow job and a handjob,”
    and he should go to room 225 at the E-Z8 motel.4
    When Furuyama got to the top of the stairs leading
    to the room, he passed Richmond. She seemed to be coming
    from room 225. In the room, Furuyama met Carly, whom he
    recognized from her photo in the ad. Furuyama handed Carly
    cash in marked bills. She put the money in the nightstand and
    retrieved a condom from a suitcase. Furuyama gave a signal to
    other officers who then knocked loudly on the door, announcing
    it was law enforcement.
    At trial, Carly testified she did not want to be a witness
    “at all.” She said, “I did everything on my own.” Carly testified
    she met Richmond through a friend in early 2017. They “were
    4     The prosecution introduced a receipt for the E-Z8 motel
    in Lancaster with Richmond’s name on it. The receipt showed
    Richmond paid cash for room 221 for the dates of October 16 and
    17, 2017, and for room 225 for the dates of October 18, 19, 20, and
    21, 2017.
    8
    very close” and “spen[t] a lot of time together.” In the fall of 2017,
    Carly “decided [she] wanted to be a prostitute.” Richmond, who
    “was [her] best friend at the time,” “didn’t like [her] doing dates.”
    Carly denied Richmond ever did anything to help her
    “catch dates”; Richmond didn’t take pictures of her for ads or
    post ads for her, nor did she ever drive Carly to the blade. Carly
    admitted she’d worked out of a room at an E-Z8 motel, but she
    denied Richmond or Clark ever rented that room.5 Carly said,
    “I would have a friend do it,” but when asked, “What friend?”
    she replied, “I don’t have any names.”
    Carly denied she ever communicated with Clark “about
    anything commercial sex-related” or ever gave him any money.
    She testified she had no knowledge of Clark or Richmond being
    pimps.
    2.     The charges, trial, verdicts, and sentences
    The People charged both defendants with two counts of
    human trafficking of a minor for a commercial sex act by force,
    fear, fraud, deceit, coercion, violence, duress, menace, or threat
    of unlawful injury in violation of Penal Code section 236.1,
    subdivision (c)(2)6 (counts 1 [Wendy S.] and 4 [Lauren R.]);
    one count of human trafficking of a minor for a commercial
    sex act in violation of section 236.1, subdivision (c)(1) (count 3
    [Carly C.]); and one count of human trafficking in violation of
    section 236.1, subdivision (a) (count 5 [Faythe S.]). The People
    also charged Clark with second degree robbery of Wendy S.
    (count 2).
    Both defendants chose not to testify.
    5    The prosecution introduced another receipt from the E-Z8
    showing Clark paid cash for room 222 on October 18, 2017.
    6     References to statutes are to the Penal Code.
    9
    The jury convicted the defendants on all counts and, on
    counts 1 and 4, found true the sentencing factor that the crimes
    involved force, fear, or the like. The trial court sentenced Clark
    to 45 years and eight months to life in the state prison. The
    court imposed indeterminate terms of 15 years to life on counts
    1 and 4. On count 3 the court chose the upper term of 12 years.
    On counts 2 and 5 the court imposed one-third the midterms of
    one year and two years eight months, respectively, to be served
    consecutively.
    The court sentenced Richmond to 40 years and eight
    months to life in the state prison. Again, the court imposed
    indeterminate terms of 15 years to life on counts 1 and 4.
    On count 3 the court chose the midterm of eight years. On
    count 5 the court imposed one-third the midterm of two years
    eight months, to be served consecutively.
    DISCUSSION
    1.     There was no instructional error on counts 1 and 4
    Clark contends the trial court prejudicially erred when it
    instructed the jury that the sentencing factor of force, fear, or
    the like requires only general intent. Richmond joins in this
    argument.
    a.    The trial court instructs the jury with instructions
    counsel have agreed to and approved
    Section 236.1, subdivision (c) provides, “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 [specified sections of the
    Penal Code] is guilty of human trafficking.” Subdivision (c)(1)
    provides for punishment of five, eight, or 12 years and a fine.
    Subdivision (c)(2) provides for a sentence of 15 years to life
    “when the offense involves force, fear, fraud, deceit, coercion,
    10
    violence, duress, menace, or threat of unlawful injury to the
    victim or to another person.” (§ 236.1, subds. (c), (c)(1) & (c)(2).)
    As noted, the People charged defendants with two counts
    of violating section 236.1, subdivision (c)(2) (section 236.1(c)(2)),
    naming as victims Wendy S. and Lauren R. (counts 1 and 4,
    respectively). The People also alleged one count of violating
    section 236.1, subdivision (c)(1) (section 236.1(c)(1)), naming
    Carly C. as the victim (count 3). Before testimony began,
    the court discussed possible jury instructions with counsel.7
    The court noted a violation of section 236.1(c)(1) is essentially
    a lesser crime of a violation of section 236.1(c)(2). The court
    proposed instructing the jury on the elements of section
    236.1(c)(1) and then having the jury make “true” or “not true”
    findings on the “enhancement allegation” that the offense
    involved force, fear, or the like. The court said, “I think that’s
    the most efficient and least confusing way to do it.” The court
    continued, “Because . . . (c)(2) is just a sentencing enhancement.
    If (c)(1) is committed, was it committed under these
    circumstances?” None of the lawyers objected to the court’s
    proposal.
    Toward the end of trial, the court again discussed jury
    instructions with counsel. The court noted it had given counsel
    7      The issue came up in the context of the prosecution’s
    motion in limine to preclude defense counsel from asking the
    alleged victims about their “voluntary” conduct or “consent.”
    The court noted “consent” is not a defense when the victim
    was a minor. (§ 236.1, subd. (e).) The court suggested defense
    counsel could cross-examine the victims by asking, for example,
    if Clark threatened them with violence or tricked them into
    thinking they were going to a party. Clark’s counsel replied,
    “I think the court’s ruling is fair and it addresses the concerns
    of both parties.”
    11
    a set of proposed instructions the previous week. The court again
    raised the issue of how to instruct on counts 1 and 4.
    “[T]here are two separate ways to deal with
    the charges here. . . . [¶] You can either instruct
    as to (c)(2) and then give (c)(1) as a lesser
    instruction, or you can give a (c)(1) instruction
    and then give (c)(2) as a further allegation.
    [¶] I think the much cleaner way to go is to
    instruct first as to (c)(1) and then have the
    allegation as to (c)(2). It’s cleaner in the verdict
    form. It’s easier to understand, especially here
    where we have count 3, which is a separate
    count of (c)(1). [¶] Subdivision (c)(2) is only
    a sentencing provision. If it’s found that the
    violation of (c)(1) was under certain conditions,
    then it’s an enhanced sentence. So I set up
    the instruction that way, to give [CALJIC No.]
    9.62.4 after [CALJIC No.] 9.62.3; meaning
    that’s the allegation applied to counts 1 and 4.”
    The court then asked both defense attorneys, “Do you have
    any opposition to that?” Both replied, “No.” All counsel
    then confirmed they had no objection to any of the proposed
    instructions, nor were they requesting any additional
    instructions.8
    The court instructed the jury with CALJIC No 9.62.3 on the
    elements of a section 236.1(c)(1) violation and CALJIC No. 9.62.4
    regarding the allegation that the crime “involved force, fear,
    8     Clark’s counsel had raised an issue about the definition
    of “debt bondage,” as used in CALJIC No. 9.62.4. The court
    had found a definition in a case and added it to the instruction;
    Clark’s counsel was satisfied.
    12
    fraud, deceit, coercion, violence, duress, menace, or the threat of
    unlawful injury.” CALJIC No. 9.62.3 included the requirement
    that “[t]he person did so with the specific intent to effect or
    maintain a violation of section 266h of the Penal Code.” The
    court also gave the jury the elements of section 266h, pimping.
    In addition, the court gave CALJIC No. 3.30, instructing the jury
    that, for the allegation in counts 1 and 4 that the offense involved
    force, fear, or the like, “there must exist a union or joint operation
    of act or conduct and general criminal intent.”
    b.     No authority supports defendants’ contention that
    the sentencing factor of force, fear, or the like requires
    specific intent
    Clark asserts the court’s instruction on general intent
    for the “force or fear” allegation “relieved the prosecution of
    its burden of establishing a facilitative nexus between [Clark’s]
    application of the force or coercion and the specific intent to cause
    or otherwise persuade the minor to engage in the commercial sex
    transactions for [Clark’s] benefit.” It’s unclear what Clark means
    by this.
    The court instructed the jury that, to prove trafficking
    in counts 1, 3, or 4, the People were required to prove that the
    defendant “cause[d], induce[d], or persuade[d], or attempt[ed] to
    cause, induce, or persuade” a minor “to engage in a commercial
    sex act, with the specific intent to effect or maintain a violation of
    section 266h,” pimping. (Italics added.) If, and only if, the jurors
    found the People had proved that, then they were to decide if
    the allegation that the crime “involved force, fear,” or the like
    was true or not true. (See CALJIC No. 9.62.4 [“If you find
    a defendant guilty of a violation of Penal Code section 236.1,
    subdivision (c)(1) in Count 1 and/or Count 4, you must determine
    whether that offense involved” force, fear, or the like. (Italics
    added.)]. Cf. CALCRIM No. 3184 [“If you find the defendant
    13
    guilty of the crime[s] charged . . . you must then decide
    whether[, for each crime,] the People have proved the additional
    allegation that when the defendant committed (that/those)
    crime[s], (he/she) used [force or fear or the like].” (Italics
    added.)].) In other words, the jury had to determine if each
    defendant committed the crime with the requisite specific
    intent before deciding the “force or fear” sentencing factor.
    Does Clark mean to argue the jury should have been
    instructed that the People had to prove he caused the victims
    to engage in commercial sex acts with the specific intent to
    pimp them, and then also to prove he used force, fear, or the like
    with the (same) specific intent to pimp the victims? But, again:
    when reaching and deciding the “force or fear” allegation,
    the jury already would have determined Clark acted with
    the requisite specific intent.
    To the extent Clark contends a sentencing factor or
    enhancement must require specific intent when the underlying
    crime to which the allegation is attached requires specific intent,
    he is mistaken. For example, a defendant may be charged with
    robbery or criminal threats—both specific intent crimes (see
    CALCRIM Nos. 1600, 1300)—and with an allegation that he
    or she used or discharged a firearm, or inflicted great bodily
    injury, in the commission of the crime. Firearm allegations are
    general intent enhancements. (See People v. Wardell (2008)
    
    162 Cal.App.4th 1484
    , 1493-1495 [firearm enhancements alleged
    for both robbery—a specific intent crime—and felony false
    imprisonment—a general intent crime].) The personal infliction
    of great body injury is as well (People v. Carter (1998) 
    60 Cal.App.4th 752
    , 755-756), and it may be alleged in connection
    with a specific intent offense. (See, e.g., People v. Wallace
    (1993) 
    14 Cal.App.4th 651
    , 663-665 [defendant convicted of both
    general and specific intent crimes]; cf. People v Brown (1985)
    14
    
    174 Cal.App.3d 762
    , 766-767 [great bodily injury enhancement
    in rape case does not require specific intent].)
    Clark concedes there’s no case recognizing the rule he
    urges us to adopt. Clark cites People v. Carrasco (2006) 
    137 Cal.App.4th 1050
     (Carrasco). He misreads that case.
    A jury convicted Carrasco of three robberies and found true
    allegations that he personally used and discharged a firearm
    in the commission of the crimes. Carrasco had come to a store
    where his former friend Dorado worked and demanded money.
    Dorado refused, and Carrasco left, but returned about an hour
    later, raising his hand in the shape of a gun outside the store.
    Carrasco then argued with a driver in the street outside and fired
    two shots toward the car as the driver left the parking lot. About
    30 minutes later, Carrasco called Dorado and told him he was
    nearby and the bullet was meant for him. Two hours later,
    Carrasco returned and demanded Dorado give him money
    for beer. Dorado gave Carrasco $5. (Carrasco, supra, 137
    Cal.App.4th at pp. 1054-1055.)
    On appeal, Carrasco contended he hadn’t fired the gun
    “during the commission” of the robbery. (Carrasco, supra,
    137 Cal.App.4th at pp. 1053, 1059.) The court rejected this
    contention, stating that when a defendant “ ‘ “deliberately shows
    a gun” ’ ” and there’s no evidence of “ ‘ “any purpose other than
    intimidating the victim,” ’ ” “ ‘ “the jury is entitled to find
    a facilitative use rather than an incidental or inadvertent
    exposure.” ’ ” (Id. at p. 1059.) The appellate court also rejected
    Carrasco’s argument that the trial court should’ve instructed
    the jury that the firearm enhancement required the same
    “concurrence of act” and specific intent as did the robbery. (Id.
    at pp. 1060-1061.) In short, Carrasco supports the prosecution’s
    position, not Clark’s.
    15
    The statutory language here does not say the defendant
    must have intended to traffick the minor using force or fear.
    Rather, it prescribes a life sentence if the “offense involve[d] force,
    fear, fraud, deceit, coercion, violence, duress, menace, or threat
    of unlawful injury.” (§ 236.1(c)(2), italics added.) “The specific
    intent requirement [of trafficking a minor for sex] is entirely
    separate from the [requirement that the offense involved force,
    fear, or the like].” (See People v. Jones (1997) 
    58 Cal.App.4th 693
    , 717 [one strike sentencing factor that defendant used
    force or fear to move victim a substantial distance and that
    the movement substantially increased the risk of harm to victim
    did not require specific intent; “The specific intent requirement
    is entirely separate from the ‘risk of harm’ requirement.”; “We
    see no reason to drag the specific intent requirement along with
    it.”].)9
    9      The Attorney General contends subdivision (c)(2) of
    section 236.1 “is not an enhancement, but an alternate penalty
    provision.” The CALCRIM equivalent of CALJIC No. 9.62.4 is
    CALCRIM No. 3184. That instruction is entitled, “Sex Offenses:
    Sentencing Factors—Using Force or Fear to Cause Minor
    to Engage in Commercial Sex Act.” (CALCRIM No. 3184.)
    An enhancement is “an additional term of imprisonment
    added to the base term.” (Cal. Rules of Court, rule 4.405(3).)
    An enhancement doesn’t define a crime but instead imposes
    an added penalty when the crime is committed under specified
    circumstances. (See, e.g., People v. Superior Court (Grilli) (1978)
    
    84 Cal.App.3d 506
    , 512.) As a leading treatise notes, it may be
    difficult to determine “whether a particular statute defines a
    crime, specifies the term of imprisonment for a crime, or creates
    an enhancement, and the case law is sometimes confusing.”
    (3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2021)
    Punishment, § 344, p. 526. See, e.g., People v. Bright (1996)
    
    12 Cal.4th 652
    , 665 [section 664, subdivision (a), prescribing
    life term for willful, deliberate, premeditated murder, defines
    16
    Finally, any instructional error on this point was harmless
    in any event. (People v. Watson (1956) 
    46 Cal.2d 818
    .) There
    was no evidence that Clark beat or threatened Wendy and
    Lauren for any reason other than to compel them to continue
    to work for him and to give him the money they made as sex
    workers. Clark stomped and kicked Wendy when she hid her
    $40 tip; he called her names; and he beat her until she was
    “dripping blood” when she refused to return to work for him
    and Richmond. Similarly, Clark punched Lauren “over money.”
    It is not reasonably probable the jury would have reached a result
    more favorable to Clark had the court instructed the jury that
    the sentencing factor required specific intent. (See People v.
    Guyton (2018) 
    20 Cal.App.5th 499
    , 508 (Guyton).)
    2.     Substantial evidence supports the jury’s verdicts
    that Richmond aided and abetted violations of
    section 236.1(c)(2) as to victims Wendy S. and
    Lauren R.
    Richmond contends her conviction on counts 1 and 4 for
    trafficking of a minor involving force, fear, fraud, deceit, coercion,
    enhancement, not separate crime]; People v. Best (1983) 
    143 Cal.App.3d 232
    , 235 [section 264.1, specifying punishment for
    rape in concert, defines separate crime and is not enhancement].)
    For our purposes, it doesn’t matter whether the “force, fear”
    sentencing factor is an enhancement, a special allegation, or
    something that renders a violation of section 236.1(c)(1) the
    entirely separate crime of a violation of section 236.1(c)(2),
    “aggravated human trafficking.” (See, e.g., People v. Jacobo
    (2019) 
    37 Cal.App.5th 32
    , 37, 40-42.) As a true finding on that
    sentencing factor increases a defendant’s punishment, the jury
    of course must find the prosecution has proved it beyond a
    reasonable doubt. (Apprendi v. New Jersey (2000) 
    530 U.S. 466
    .)
    The jury so found in this case.
    17
    violence, duress, menace, or threat of unlawful injury must
    be reversed or, in the alternative, the “force or fear” allegation
    stricken.10 She asserts she was “tried . . . solely as a direct
    perpetrator as to” the “force or fear” allegation, and there was no
    evidence she personally used force or violence against the victims.
    In the alternative, Richmond argues the accomplice liability
    instruction applied only to the “crime” and not to the “force or
    fear” allegation. We are not persuaded.
    As we have said, the court instructed the jury on the
    elements of trafficking a minor with CALJIC No. 9.62.3, which
    included the requirement of specific intent. The court also
    instructed the jury on aiding and abetting, using CALJIC
    Nos. 3.00, 3.01, 3.03, and 3.14. CALJIC No. 3.01 set forth the
    requisite specific intent as well as the requirement of knowledge.
    CALJIC No. 3.14 told the jurors that “[m]erely . . . assisting”
    or aiding without the required knowledge, intent, or purpose
    did not make one an accomplice.
    Richmond cites no case that holds a jury must be
    separately instructed on aiding and abetting a sentencing factor
    or enhancement. (Cf. Carrasco, supra, 137 Cal.App.4th at
    pp. 1060-1061 [rejecting contention that court should have
    modified jury instruction on robbery by inserting “allegations”
    after the word “crimes”].) Counts 1 and 4 charged Richmond (and
    Clark) with violating section 236.1(c)(2), trafficking a minor for
    10     It is unclear if Clark purports to join in this argument. In
    his opening brief, he says he “joins in any arguments advanced
    by co-defendant Richmond that may accrue to his benefit.” As
    the Attorney General notes, Clark offers no “argument [on this
    issue] specific to his own circumstances.” In any event, any
    such contention by Clark is without merit, as there was ample
    evidence that he used force, fear, coercion, violence, and menace
    in his dealings with victims Wendy S. and Lauren R.
    18
    commercial sex by force or fear. The jury found Richmond guilty
    on those counts, and substantial evidence supports those
    verdicts. While Clark was the one who actually beat the girls,
    Richmond directly aided and abetted him in the crimes by placing
    Backpage ads, taking calls from tricks, arranging dates, and
    collecting money from the victims. She drove Lauren to out-calls
    and rented a room at the E-Z8 in Lancaster for her to perform
    services. She stood by while Clark threw Wendy off a bed, then
    kicked and stomped her as she lay on the floor. Lauren believed
    she couldn’t say no to Richmond because she and Clark were
    “a team.” “She was like the shot caller.” “[I]t seemed like she
    was . . . the one in control.” Even after Wendy left, Richmond
    was the one who contacted her and then drove her to a
    McDonald’s where Clark got into the car, then later beat and
    robbed her, leaving her “dripping blood.” A year later, Richmond
    was still contacting Wendy about coming back to work for her
    and Clark.
    Richmond also contends she never beat the victims but
    “was instead beaten herself.” Wendy testified she had seen Clark
    “assault” and “beat up” Richmond. “[A] couple of times,” Wendy
    saw Clark “dragging [Richmond] by her hair.”
    But Richmond chose not to testify. She never said Clark
    forced her to do anything. Her counsel never asked the court
    to instruct on a defense of duress (see CALCRIM No. 3402)
    nor, in any event, was there any evidence that, if she had not
    participated fully in the recruitment and management of the
    victims, her “life would [have been] in immediate danger.”
    (CALCRIM No. 3402.)
    In closing argument, Richmond’s counsel suggested Clark
    was “actually running the show” but he conceded Richmond “was
    like the right-hand man [sic].” Counsel acknowledged Richmond
    and Clark had children together, and Richmond “operate[d] in
    19
    sort of a managerial capacity.” But, he argued, Clark “kept the
    money in the end.” Counsel referred to Wendy’s testimony—
    though noting “her credibility ha[d] been serious[ly] called
    into question”—and proposed “[m]aybe [Richmond] . . . was
    battered into low self-esteem.”
    Low self-esteem does not constitute duress. Having
    examined the entire record in the light most favorable to
    the judgment of conviction, as we must (Guyton, supra, 20
    Cal.App.5th at p. 506), we are satisfied substantial evidence
    supports the jury’s true finding on the sentencing factor
    for Richmond.
    3.     Substantial evidence supports defendants’
    convictions on count 5
    Both Clark and Richmond contend there was not
    substantial evidence that they deprived Faythe S. of, or violated,
    her personal liberty, as required for a violation of section 236.1,
    subdivision (a).
    The principles governing our assessment of a defendant’s
    challenge to the sufficiency of the evidence are well settled.
    We must review the whole record in the light most favorable to
    the judgment below to determine whether it discloses substantial
    evidence—that is, evidence that is reasonable, credible, and of
    solid value—such that a reasonable trier of fact could find the
    defendant guilty beyond a reasonable doubt. (People v. Brooks
    (2017) 
    3 Cal.5th 1
    , 57.) We presume in support of the judgment
    the existence of every fact the trier of fact reasonably could infer
    from the evidence. (Guyton, supra, 20 Cal.App.5th at p. 506.)
    If the circumstances reasonably justify the trier of fact’s findings,
    reversal of the judgment is not warranted simply because the
    circumstances might also be reconciled with a contrary finding.
    A reviewing court neither reweighs evidence nor reevaluates a
    witness’s credibility. (People v. Wyatt (2010) 
    48 Cal.4th 776
    , 781;
    20
    Oliver, supra, 54 Cal.App.5th at p. 1099.) Substantial evidence
    includes circumstantial evidence and any reasonable inferences
    drawn from that evidence. (Brooks, at p. 57; Oliver, at p. 1099.)
    Clark asserts “there was virtually no evidence that Faythe
    was ever compelled to work as a prostitute or that her personal
    liberty was in any way compromised through any coercive actions
    on either [Clark’s] or Richmond’s part.” Similarly, Richmond
    argues, “Faythe was already a sex worker when she met Clark,
    and agreed of her own free will to work for him.” Richmond says
    Faythe “was free to come and go whenever she pleased,” and she
    “had access to Clark’s car if she ever wanted to go somewhere.”
    While Faythe had “had sex for money” before she met
    Clark when she was 18, section 236.1(a) does not require that
    the defendant be the first to persuade a victim to become a
    commercial sex worker. The crime is committed when the
    defendant “deprives or violates the personal liberty of another
    with the intent to obtain forced labor or services.” (§ 236.1,
    subd. (a).) The statute provides, “ ‘Deprivation or violation of the
    personal liberty of another’ includes substantial and sustained
    restriction of another’s liberty accomplished through force, fear,
    fraud, deceit, coercion, violence, duress, menace, or threat of
    unlawful injury to the victim . . . , under circumstances where
    the person receiving or apprehending the threat reasonably
    believes that it is likely that the person making the threat
    would carry it out.” (§ 236.1, subd. (h)(3).)
    The use of the word “includes” suggests other means—
    in addition to those listed—can satisfy the statute. (See Oliver,
    supra, 54 Cal.App.5th at pp. 1096-1097.) “[T]he Legislature
    adopted a broader definition of deprivation of personal liberty for
    purposes of human trafficking” than that for false imprisonment.
    (Id. at p. 1096.) Human trafficking does not require that the
    deprivation of personal liberty—the confinement or restraint—is
    21
    itself unlawful. “Instead, confinement or restraint is punishable
    . . . if it is done with ‘the intent to effect or maintain’ a separate
    enumerated offense such as pimping and prostitution.” (Ibid.)
    When walking the blade, Faythe had seven or “maybe
    more” “dates” a night. At the E-Z8—where Richmond rented
    a room for her—she had 14 or more “dates” in a 24-hour period
    (some for cash and some for bitcoin). Faythe gave Clark and
    Richmond all the money she made; she never kept any for
    herself.
    If Faythe “finished all the condoms” Richmond had given
    her, she might be able to stop for the night. But other times
    Clark told her she had to keep working. Clark made her work
    even after she was raped. She didn’t feel she could say no; a
    “very angry” Clark would yell and “curse [her] out.” She feared
    Clark would get violent. Clark gave Faythe methamphetamine
    so she could stay up.
    While Faythe testified Clark had never hit her, Wendy
    testified about a time Faythe “didn’t want to work no more, and
    she was tired.” “[S]he didn’t want to work, or . . . she wanted
    something.” Clark “got mad that he had to buy her something,
    or that she had to go to sleep.” “He took her to the car.” When
    Faythe returned, she had injuries that gave Wendy reason to
    believe she’d been beaten up.
    While the evidence at trial, taken as a whole, might
    “reasonably be reconciled” with a not guilty finding, it is
    sufficient to support the guilty verdicts on count 5. (See Oliver,
    supra, 54 Cal.App.5th at pp. 1098-1101 [finding substantial
    evidence to support conviction for human trafficking even though
    victim “was free to go when she pleased”; defendant used verbal
    abuse to gain victim’s compliance and “required [her] to work
    as a prostitute every day and to give [him] all the money she
    earned”]; Guyton, supra, 20 Cal.App.5th at pp. 503, 506-507
    22
    [human trafficking conviction affirmed; even though adult victim
    had her own hotel room, bought her own food, and had a cell
    phone, defendant gave her a daily quota, called her names
    when she didn’t follow the rules, made her work when she
    was exhausted, and took all the money she made].)
    DISPOSITION
    We affirm the judgments.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    EGERTON, J.
    We concur:
    LAVIN, Acting P. J.
    WINDHAM, J.
    
    Judge of the Los Angeles Superior Court, assigned
    by the Chief Justice pursuant to article VI, section 6 of the
    California Constitution.
    23
    

Document Info

Docket Number: B305709

Filed Date: 12/27/2021

Precedential Status: Non-Precedential

Modified Date: 12/27/2021