People v. Ford CA2/5 ( 2020 )

Filed 9/24/20 P. v. Ford CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
PEOPLE OF THE STATE OF B300811
CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA468311)
v.
DESTIN FORD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Norman Shapiro, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Gary A. Lieberman, Deputy Attorney
General, for Plaintiff and Respondent.
Over a period of several weeks, a young woman named
Raelynn D. (Raelynn) worked as a prostitute and gave all the
money she earned to defendant Destin Ford (defendant). We are
asked to decide (1) whether substantial evidence supports
defendant’s conviction for pimping (he claims he did not profit
from Raelynn’s prostitution and the two were engaged in a
“quasi-familial” relationship) and (2) if so, whether the pimping
statute violates substantive due process guarantees as applied to
him.
I. BACKGROUND
Raelynn was 22 years old when she testified at defendant’s
trial in 2019. She said she did not want to testify and only came
to court because she did not want to go to jail. The following
summary of Raelynn’s testimony about the offense conduct
incorporates statements she made in a Los Angeles Police
Department (LAPD) interview, excerpts of which were admitted
into evidence.
Raelynn grew up in California, worked as a prostitute off
and on for a few years, and then moved to Ohio. When she
returned to California in March or April 2018, she had no
permanent place to stay. She contacted a friend, “LaLah,”1 who is
the mother of a child fathered by defendant.
Raelynn stayed with defendant and LaLah at various
locations over the next several weeks, including Bakersfield, Las
Vegas, and a room defendant and LaLah rented in Lancaster.
She was not sure who paid the rent. Raelynn worked as a
prostitute all but one or two nights during her stay with
1
The appellate record and briefs include several variant
spellings of LaLah’s name. We use the spelling that appears
most frequently in the reporter’s transcript.
2
defendant and LaLah.2 Raelynn recalled describing defendant as
her pimp to police and acknowledged that she called defendant
“daddy” in messages sent via Facebook.3 She testified she saw
him as a friend who would protect her.
Raelynn gave defendant all the money she earned during
the time she was living with defendant—roughly $800. Raelynn
claimed defendant “wouldn’t keep [her] money, he just held it for
[her]. All [her] money went towards [her] children.” Raelynn
was with defendant all day, every day and did not believe he had
a job. Defendant slept in the same rooms as Raelynn. He bought
food for her in cash and, most of the time, also bought food for
himself. Defendant arranged for Raelynn’s children to stay with
one of his friends, a woman named Pam, and Raelynn saw the
children at night when she was done working.
Raelynn testified defendant did not tell her what prices to
charge for sex. She previously told police, however, that
defendant instructed her to charge $60 for a “quick session,” $100
for 30 minutes, $140 for 45 minutes, and $180 for an hour.
Raelynn also acknowledged that during their time in Las Vegas,
defendant sent her messages via Facebook instructing her to
solicit a specific man and to charge him $80 for 10 minutes.
Defendant led Raelynn through the ensuing negotiations, first
telling her not to lower her rates when the potential customer
said he could not afford $80 and subsequently telling her $60 was
acceptable. He sent messages telling her, in effect, that she
2
The precise length of Raelynn’s stay with defendant and
LaLah was not clear: she testified she was with defendant and
LaLah from the end of March through April of 2018, but she also
stated she “worked” for defendant for about two to three weeks.
3
Raelynn acknowledged “daddy” is “usually what a female
calls a guy she is working with.” By “female,” she meant a
commercial sex worker; by “guy she is working with,” she meant
a pimp.
3
needed to bring in a “good trap,” essentially “a good amount of
money,” each night. Later, back in California, defendant sent
Raelynn a message telling her she needed to get at least $80 from
every customer. Raelynn sometimes sent defendant photographs
of cash so he would not think she was lying about the amounts
she earned.
Apart from telling her not to go too far from where he
dropped her off to work, Raelynn testified she did not recall any
other rules defendant set for her. Instead, he encouraged her to
“keep doing what [she] was doing.” Raelynn acknowledged,
however, that defendant sent her messages telling her to walk a
bit faster, to put on or take off her sweater, and to change her
hair. While in Las Vegas, he told her to take a photo of each
casino she entered and asked if she had condoms. When she said
she did not know whether she had condoms, defendant told her to
“make a tric [sic]” and he would give her some.
Defendant applied both persuasion and force to keep
Raelynn working for him. When she told him she wanted to stop,
he reminded her of “all the things that [she] told him [she]
wanted to do,” things that cost money. At one point, after
Raelynn briefly left defendant and LaLah, defendant saw her in a
Palmdale WalMart and grabbed her arm. (Raelynn told police
defendant grabbed her by the hair.) Defendant escorted her to
his car and she then resumed working for him. Raelynn testified
she did not want to go with defendant, “but at the same
time . . . [she] wanted to” because she had no money.
Raelynn finally stopped working for defendant on April 27,
2018. That evening, LAPD vice officer Jose Leon was working
undercover along the Sepulveda Corridor, an area frequented by
prostitutes. He observed Raelynn monitoring traffic and walking
without purpose; he made eye-contact with her, pulled over, and
waited for her to approach his car. When Raelynn offered to
perform different sex acts for different dollar amounts, Officer
Leon’s team took her into custody and then released her at the
4
scene. Raelynn called defendant to pick her up because she
would go to jail if she continued working in the area. Defendant
refused because Raelynn had not made any money. He told her
to continue working the back streets.
Raelynn called her mother to pick her up. Raelynn’s
mother told her she would not do so unless she told the police
about her situation. Raelynn agreed, and she and her mother
went to a police station in Van Nuys the same night. There,
Raelynn was interviewed by officers assigned to LAPD’s human
trafficking unit. Officer Leon picked up Raelynn’s children from
Pam’s home in Palmdale.
Aaron Korth, one of the LAPD officers who interviewed
Raelynn, testified about the circumstances of the interview and
opined as an expert about the commercial sex trade generally.
He also testified about evidence recovered from Raelynn’s phone,
including text messages and messages sent via Facebook. In
addition to the messages we have already discussed, Officer
Korth found text messages from defendant telling Raelynn to
stay in pocket (i.e., not to disrespect him while she was working)
and to keep walking (i.e., to not stand still when trying to solicit
customers). Officer Korth identified defendant based on his
Facebook account, which Raelynn showed them.
At trial, a jury found defendant guilty of the sole count
charged against him: pimping in violation of Penal Code section
266h, subdivision (a).4 Defendant admitted a prior conviction for
robbery. The total sentence imposed was six years in state
prison: the low term of three years, doubled on account of the
prior “strike” conviction. (§§ 667(b)-(i), 1170.12.)
4
Undesignated statutory references that follow are to the
Penal Code.
5
II. DISCUSSION
Sufficient evidence supports defendant’s pimping
conviction. He argues he did not derive support or maintenance
from Raelynn’s prostitution, as required to establish a violation of
the pimping statute, because the money he spent on her room,
board, and childcare must have exceeded the $800 she gave him.
But there is substantial evidence defendant supported himself at
least partly from Raelynn’s prostitution money, even if he also
spent some of that money on her. Defendant’s substantive due
process challenge to the pimping statute fails because the statute
infringes on no fundamental right and is rationally related to the
goal of suppressing prostitution.
A. Substantial Evidence Supports Defendant’s
Conviction
Under section 266h, subdivision (a), “any person who,
knowing another person is a prostitute, lives or derives support
or maintenance in whole or in part from the earnings or proceeds
of the person’s prostitution, or from money loaned or advanced to
or charged against that person by any keeper or manager or
inmate of a house or other place where prostitution is practiced or
allowed, or who solicits or receives compensation for soliciting for
the person, is guilty of pimping, a felony . . . .” (§ 266h, subd. (a).)
“Thus, section 266h can be violated in either of two basic ways:
(1) by deriving support from the earnings of another’s act of
prostitution or (2) by soliciting.” (People v. McNulty (1988) 202
Cal. App. 3d 624, 630 (McNulty).)
In this case, the jury was instructed on only the first
theory: defendant deriving support from the proceeds of
Raelynn’s prostitution. “[D]eriving support with knowledge that
the other person is a prostitute is all that is required for violating
the section in this manner. No specific intent is required.
[Citation.]” (McNulty, supra, 202 Cal. App. 3d at 630.)
6
“‘In order to establish that the accused lived and derived
support and maintenance from the earnings of prostitution it is
not necessary for the prosecution to prove that the money was
expended for that purpose. [Citation.] It is not a defense that the
accused had a sufficient income from other sources ....... ’
[Citation.]” (People v. Jackson (1980) 114 Cal. App. 3d 207, 210
(Jackson).) It is also no defense that the proceeds from another
person’s prostitution were used to pay shared expenses. (People
v. Navarro (1922) 60 Cal. App. 180, 182 [“It was shown that,
during the period of their cohabitation, the [defendant] paid the
room rent and purchased some meals for the prosecutrix and
himself. It was not necessary to show that the money he received
from her was used solely to pay his own living expenses”]; see
also People v. Scally (2015) 243 Cal. App. 4th 285, 293 [when there
is evidence a defendant “was instructing” another individual to
“meet certain quotas” working as a prostitute, a jury may
conclude, “as a matter of common sense,” that “he was doing so
for his own gain”].)
Here, the jury could reasonably infer that when defendant
told Raelynn what prices to charge, identified potential
customers, advised her on how to look and act when soliciting
customers, and insisted that she bring home a good amount of
money—to the point that Raelynn felt the need to send him
photographs of cash—he was doing so for his own gain. In
addition, notwithstanding Raelynn’s testimony that “all” her
money was spent on her children, the jury could reasonably
conclude that the rooms defendant shared with Raelynn and his
use of apparently commingled cash to purchase meals for himself
demonstrate that he derived at least some portion of his
subsistence expenses from her earnings. Further, even if
defendant did not realize a profit on any particular day,
substantial evidence supports the jury’s conclusion that
defendant’s spending on Raelynn was a criminal investment in
expected or hoped for future profits. (See, e.g., People v. Tipton
7
(1954) 124 Cal. App. 2d 213, 215-218 [affirming conviction under
earlier version of pimping statute where a young woman earning
“from $30 to $60 per day” working as a prostitute was furnished
with “heroin each day that would otherwise have cost her $50”
because “furnishing of the heroin had the purpose, intent and
effect of inducing [the woman] to engage in prostitution in order
that [the defendant] could make a profit therefrom”].)
Defendant nevertheless characterizes the money given to
him by Raelynn as reimbursement for household expenses, but
that ignores her testimony emphasizing the commercial nature of
their relationship. Although Raelynn testified that she
considered defendant a friend, she also said that she worked for
him, described him as her pimp, and called him “daddy.” The fact
that Raelynn gave defendant all of her earnings, without
demanding or expecting any accounting of how he spent it,
forecloses any analogy to scenarios in which proceeds from
prostitution are used to pay for discrete services rendered (see,
e.g., Allen v. Stratton (C.D.Cal. 2006) 428 F. Supp. 2d 1064, 1072,
fn. 7 [“even if paid with proceeds earned from prostitution, [a]
psychologist derives his support from his own performance of
services, and not directly from the prostitute’s earnings”]) or
offered as a loan (see, e.g., People v. Reitzke (1913) 21 Cal. App.
740, 742). In short, there was substantial evidence that, whether
or not he ultimately realized a profit, the proceeds from Raelynn’s
prostitution went toward defendant’s support and maintenance.5
B. Section 266h Is Constitutional as Applied
Separate from his sufficiency of the evidence argument,
defendant also contends his pimping conviction violates the
5
Indeed, if the contrary were true, it is hard to fathom why
defendant refused to pick up Raelynn after she was arrested and
released for the reason he gave her, namely, because she had not
made any money from prostitution that day.
8
Fourteenth Amendment’s guarantee of substantive due process.
“In addressing a substantive due process argument, we first
identify the liberty interest asserted and then determine whether
it is a ‘fundamental right[ ] and libert[y that is] objectively,
“deeply rooted in this Nation’s history and tradition” ....... ’
([Washington v. Glucksberg (1997) 521 U.S. 702,] 720-721, 117
S. Ct. 2258 [(Glucksberg)].)” (In re H.K. (2013) 217 Cal. App. 4th
1422, 1432.) If the challenged statute implicates a fundamental
right, it is subject to strict scrutiny review. (Id. at 1433.) If, on
the other hand, the “statute does not implicate a fundamental
right or operate to the singular disadvantage of a suspect class,
only a rational relationship to a legitimate state purpose is
necessary to uphold the constitutional validity of the legislation.
[Citations.]” (Ibid.; accord In re Taylor (2015) 60 Cal. 4th 1019,
1036.)
Defendant contends application of the pimping statute in
this case intrudes upon his “fundamental rights to create and
maintain intimate relationships, his right to privacy, [and] his
right to liberty.” In more concrete terms, defendant contends he
has a fundamental right to enter into a “quasi-familial”
relationship with a person working as a prostitute and to pay
shared expenses with her earnings.
Most aspects of defendant’s domestic arrangements are
irrelevant to his conviction under section 266h, subdivision (a).
The statute does not prohibit defendant’s cohabitation with
Raelynn. It does not even prohibit him from collecting her share
of household expenses. It only prohibits him from knowingly
deriving his own support from the proceeds of Raelynn’s
prostitution. “[U]nlike the United States Supreme Court’s
recognition of certain fundamental liberties in Lawrence [v. Texas
(2003) 539 U.S. 558,] 575-577, 123 S. Ct. 2472[,] Eisenstadt [v.
Baird (1972) 405 U.S. 438,] 440, 453, 458, 92 S. Ct. 1029, and
Meyer [v. Nebraska (1923) 262 U.S. 390,] 399, 43 S. Ct. 625, with
which we have no quarrel, we are here concerned with a
9
prohibition related to commercial sexual conduct.” (People v.
Grant (2011) 195 Cal. App. 4th 107, 113 [rejecting facial challenge
to section 266h, subdivision (a)] (Grant).) The commercial
dimension of defendant’s relationship with Raelynn has no place
in the lineage of cases “interpreting the Due Process Clause to
protect certain fundamental rights and ‘personal decisions
relating to marriage, procreation, contraception, family
relationships, child rearing, and education’ . . . .”6 (Glucksberg,
supra, 521 U.S. at 726, quoting Planned Parenthood of
Southeastern Pa. v. Casey (1992) 505 U.S. 833, 851.)
“In the absence of a fundamental liberty interest, we review
the constitutionality of the challenged portion of [the pimping
statute] to determine whether it bears some rational relationship
to a valid state interest.” (Grant, supra, 195 Cal.App.4th at 113-
114.) Section 266h, subdivision (a) “discourage[s] prostitution by
discouraging persons other than the prostitute from augmenting
and expanding a prostitute’s operation, or increasing the supply
of available prostitutes. [Citations.]” (People v. Hashimoto
(1976) 54 Cal. App. 3d 862, 867.) As the Court of Appeal explained
in Grant, suppressing prostitution is a proper legislative goal and
the “prohibition against deriving support from the earnings of a
6
Defendant suggests the rationale for applying the pimping
statute in this case would apply with equal force to dependent
adults living with people who work as prostitutes, anyone whose
roommate pays his or her share of the rent with proceeds from
prostitution, and landlords of people working as prostitutes.
Even if defendant’s argument did not ignore material differences
between this case and the hypothetical cases (e.g., defendant is
not a dependent of Raelynn, the money she gave him was not
limited to her share of expenses, and he was not her landlord), it
has no relevance to his as-applied challenge. As we have already
mentioned, and as defendant acknowledges, the Court of Appeal
rejected a facial challenge to section 266h, subdivision (a) in
Grant, supra, 195 Cal. App. 4th 107 at 113. Defendant does not
argue Grant was incorrectly decided, and rightly so.
10
known prostitute” is “neither novel nor unprecedented as the
same or essentially similar language has been validated as a
necessary means to suppress prostitution by legislatures and
decisions of the courts in other states. [Citations.]” (Grant,
supra, at 117.)
Defendant suggests the statute is not rationally related to
suppressing prostitution because its “Dickensian” approach
criminalizes the provision of necessities such as food and shelter
to those working as prostitutes. Even if such conduct were
prohibited under section 266h, subdivision (a)—and it is not7—
defendant’s conviction does not rest on his providing food and
shelter to Raelynn. It rests, rather, on his collecting all proceeds
from Raelynn’s prostitution while setting the prices she charged,
advising her on soliciting customers, and using at least some of
the money she made to support himself. Enforcement of the
pimping statute under these circumstances is rationally related
to suppressing prostitution.
7
Defendant’s construction of the pimping state is based on
the Court of Appeal’s quotation, in Grant, of a 1942 opinion by
the Supreme Court of Arizona observing that “‘[i]f a prostitute
knows that no one in the state will accept any of her earnings,
even for food and shelter, she is certainly much less likely to ply
her trade within the state, and indeed, if all citizens obey the law,
would be compelled either to cease her profession or remove to
some other locality.’” (Grant, supra, 195 Cal.App.4th at 116,
quoting State v. Green (1942) 60 Ariz. 63, 66 [ ].) Grant, however,
expressly held that section 266h, subdivision (a) “does not
preclude a person from accepting a known prostitute’s funds
gained from the prostitute’s lawful activities or for purposes other
than the person’s support and maintenance.” (Ibid.) Grant cites
the Arizona opinion only to illustrate that, even if section 266h,
subdivision (a) could be construed more broadly, it would still be
rationally related to a proper legislative goal. (Ibid.)
11
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
12