People v. Brown CA2/1 ( 2020 )

Filed 11/19/20 P. v. Brown CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B300031
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA474258)
v.
DAVID LAMONT BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig J. Mitchell, Judge. Affirmed and
remanded with directions.
Marilee Marshall for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael C. Keller and Charles J. Sarosy,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
On July 16, 2018, bystander Lexus Scott observed
defendant David Lamont Brown punching and struggling with
T.J., a minor, in the back seat of a parked car. Scott telephoned
911. Brown ejected T.J. from the car and sped away. While T.J.
sat in an ambulance, Los Angeles Police Department (LAPD)
Officer Keleigh Edwards asked her if she was “working,” a
colloquial term referring to prostitution. T.J. responded that she
did not want to, but that “he” insisted she get out of the car; when
she refused, he punched her and threw her out of the car.
T.J. did not testify at Brown’s trial. In her absence, the
prosecution played two recordings for the jury: an audio recording
of the 911 telephone call placed by Scott and a portion of a body
camera video taken while Officer Edwards spoke with T.J. The
trial court also permitted the prosecution to call two witnesses,
M.W. and W.F., to testify that when they were each 14 years old,
they worked for Brown as prostitutes.
The jury convicted Brown of human trafficking of a minor,
T.J., for a commercial sex act (count 1), and found true the
allegation that he used force or fear against her within the
meaning of Penal Code section 236.1, subdivision (c)(2).1 The
jury also found Brown guilty of assaulting T.J. by means likely to
cause great bodily injury under section 245, subdivision (a)(4)
(count 2), and unlawful sexual intercourse with T.J., a minor
more than three years younger than Brown, under section 261.5,
subdivision (c) (count 3). The trial court found true the allegation
that Brown had a prior felony conviction for human trafficking of
a minor, involving M.W. and W.F.
1 All unspecified statutory references are to the Penal Code.
2
The trial court sentenced Brown to a total of 21 years and
eight months to life in state prison. The court also imposed a
one-year enhancement under section 667.5, subdivision (b), for
service of a prior prison term, but stayed this sentence.
On appeal, Brown argues the admission of the two
recordings violated his Sixth Amendment right to confrontation.
He also argues permitting both W.F. and M.W. to testify that
they worked for Brown as prostitutes when they were 14 years
old was so unduly prejudicial that it rendered the trial
fundamentally unfair and violated his Fifth and Fourteenth
Amendment rights to due process. Finally, Brown argues that
pursuant to newly-amended section 667.5, subdivision (b), the
one-year sentencing enhancement should be stricken rather than
stayed. The People agree, as do we, that the enhancement should
be stricken.
For the reasons that follow, we remand for the trial court to
strike the one-year enhancement imposed under former section
667.5, subdivision (b), but otherwise affirm the judgment.
FACTUAL BACKGROUND
A. T.J. is Arrested for Prostitution
During the night of June 6, 2018, undercover LAPD vice
investigator Marco Sanchez posed as a person interested in
soliciting the services of a prostitute. T.J. approached his vehicle.
After she and Investigator Sanchez agreed that he would pay her
3
in exchange for certain sex acts, he drove T.J. to a predetermined
“take-down area,” where uniformed officers arrested her.2
B. Testimony of Brown’s Girlfriend
Brown’s girlfriend, Jasmine Houston, did not work as a
prostitute. She owned a black Nissan Sentra, which she let
Brown use while she was at work.
Sometime in July 2018, Brown and Houston broke up.
Prior to their breakup, Houston and Brown argued about
photographs of T.J. on Brown’s cell phone and texts of a sexual
nature between Brown and T.J. Despite their breakup, Brown
continued to have the keys to Houston’s car.
Houston also testified that Brown commonly referred to
himself on Instagram by using an image of a blue diamond next
to the word “Dave,” and confirmed “Diamond Dave” was one of
Brown’s Instagram names.
C. The July 16, 2018 Attack on T.J.
Scott’s Observations and Call to 911
On July 16, 2018, Scott lived one city-block away from the
intersection of Figueroa Street and 90th Street. Scott did not
know T.J. or Brown. Scott heard yelling, including a man saying,
“Get out of my car, bitch,” and a woman screaming for help.
While standing outside of her apartment, Scott observed, through
an open car door, Brown pinning down T.J. in the back seat of a
black Nissan Sentra. Brown and T.J. appeared to be wrestling,
and Brown punched T.J. three times. Brown pulled T.J. out of
the car and prevented her from reentering. T.J. continued to yell
2 InvestigatorSanchez did not know T.J.’s name, but he
identified a photograph of her as the person he brought to the
take-down area that night.
4
for help, and Scott telephoned 911. Brown threw some of T.J.’s
belongings out of the car and “sped off.”
Scott then observed T.J. sitting on the ground. T.J. was
“throwing up or dry heaving, and . . . crying.” She also appeared
to have urinated in the spot where she sat. About a minute after
Scott approached T.J., Brown returned in the vehicle. He threw
more of T.J.’s belongings out of the car window and left again.
Scott guided T.J. out of the street to the porch of Scott’s
apartment, where T.J. sat until an ambulance arrived. While
Scott was on the phone with the 911 dispatchers, Scott observed
“a huge gash” on T.J.’s forehead.
T.J. did not testify at Brown’s trial. Scott identified
photographs of T.J. as the woman she observed in the altercation
with Brown that day. Scott also identified Brown as the
assailant and identified a photograph of Houston’s Nissan Sentra
as the car in which Brown assaulted T.J.
The prosecution played a recording of Scott’s 911 call for
the jury. During the call, Scott described her observations to a
fire department dispatcher and then to an LAPD dispatcher. She
also made three statements not within her own knowledge to the
dispatchers. First, the fire department dispatcher asked Scott
how old T.J. appeared to be. Scott estimated that T.J. was 22
years old. After a statement from T.J. that was not transcribed,
Scott exclaimed, “She’s seven—oh my God, she’s 17.”
Second, the call was transferred to the LAPD dispatcher,
who asked Scott if Brown was T.J.’s boyfriend. Scott responded,
“she told me no but she does know the, she says she does know
the gentleman but I’m not sure about the relationship.”
Third, during her conversation with the LAPD dispatcher,
Scott exclaimed, “Are you serious?!” The dispatcher asked, “What
5
did she say, what did she say?” Scott responded, “She was saying
that—because I was asking, because they were parked in front of
my apartment when I came and I was asking how long was she
here fighting with this man before I came. And she was saying
they were actually somewhere else when the altercation started
and that’s where he actually like busted her head open.”
Officer Edwards Questions T.J.
While the paramedics treated T.J. for the injury to her
forehead, Officer Edwards spoke with her. Out of the presence of
the jury, the trial court reviewed a video recording of the
discussion between the officer and T.J., and found that while they
spoke, T.J.’s respiration was “obviously quite labored,” and she
had tears streaking down her face. The prosecution played the
following portion of their recorded conversation for the jury:3
“[Officer] Edwards: Okay. And what happened today?
“[T.]J.: . . .
“[Officer] Edwards: Were you working?
“T.]J.: [shakes head negatively] I didn’t want to, that’s why
this happened.
“[Officer] Edwards: Okay, did you know that’s what you
were coming out here for?
“[T.]J.: . . .
“[Officer] Edwards: It’s okay if you were. I’m just trying to
get the full story so I understand.
“[T.]J.: He told me to get out the car on 95th, on 90th and
Figueroa and I said no, I didn’t want to.
“[Officer] Edwards: Okay.
3 The nonverbal descriptions included below are reflected in
the transcript that was provided to the jury.
6
“[T.]J.: And he said, and he asked one more time and he
said, ‘If you don’t get out, I’m gonna hurt you.’ I said, ‘But I
really don’t wanna go. I don’t feel comfortable.’ And then, he was
like, ‘You take too long to get dressed. Now, you don’t wanna get
out my car?!’ And then he just start[ed] hitting me. And then we
pulled over like three blocks down in the back street somewhere.
I think he made a right or something. I’m not sure. We pulled a
few blocks down and he hit me in my head again and then it just
split open and it start squirting, blood start squirting out. Blood
got in my eye and I just blacked out. And the next thing you
know, I was over here. And he was on top of me, like, ‘Get out my
car!’ Like, ‘Go!’
“[Officer] Edwards: What did he hit you in the head with?
“[T.]J.: [makes a fist with left hand] His hand; he punched
me.
“[Officer] Edwards: Okay, so this was from his fist
[pointing to cut on victim’s forehead]. He didn’t hit you with any
objects?
“[T.]J.: [shakes head negatively]
“[Officer] Edwards: Okay. And then he drove you over
here and that’s when he threw you out?
“[T.]J.: [nodding head affirmatively]
“[Officer] Edwards: Was he hitting you over here too?
“[T.]J.: Yeah. I asked him to take me to the hospital or
something because of my head was like . . . . And he was like,
‘No, walk,’ or something. So, then he just started like, hitting me
again and then he said, ‘I feel like killing you right now!’ So,
that’s when he was like trying to throw me out the car. I was
getting like hit so I couldn’t see what was coming.”
7
At trial, Officer Edwards also testified that T.J. directed
the officers to a corner of 90th and Figueroa Streets, where they
found T.J.’s cell phone lying in the street.
D. Sexual Assault Examination of T.J.
On July 17, 2018, a nurse conducted a sexual assault
examination of T.J. During the examination, the nurse observed
bruising on T.J.’s right forearm, left shoulder, back of her left
shoulder, left eye, chin, and inside her left cheek; a scratch about
eight centimeters long on her upper left breast; a cut above her
left eye; and an abrasion inside her left cheek. The nurse also
took several DNA sample swabs, which revealed Brown’s DNA in
anal and vaginal swab samples taken from T.J.
E. Officers Arrest Brown
On July 20, 2018, Detective Jose Rodriguez and two of his
partners located Brown at an address on Paramount Boulevard
and recovered from him a set of car keys belonging to Houston.
Houston’s black Nissan Sentra was across the street. While
detaining Brown, the officers photographed a diamond tattoo on
the right side of Brown’s face, below his eye. Brown denied
knowing T.J. When Detective Rodriguez asked whether Brown
was at the location where Scott’s apartment was located, Brown
responded that if his GPS showed that Brown was there, then he
was there.
F. Testimony of W.F. and M.W.
In 2014, when W.F. was 14 years old, she worked as a
prostitute for Brown. During the time she worked for him, W.F.
lived at Brown’s house and he provided her anything she needed.
Brown educated W.F. about how to behave while working for
him. While working for him as a prostitute, Brown took W.F. to
8
an area on Figueroa Street, where she acknowledged prostitution
is commonly practiced. W.F. also testified that M.W. worked for
Brown as a prostitute, and stated that it was W.F.’s idea that
M.W. do so. W.F. did not reveal their true ages to Brown, telling
him she was 17 years old, and M.W. was 16 years old.
M.W. testified that in 2014, when she was 14 years old, she
met Brown through her friend W.F. Shortly after meeting
Brown, M.W. and Brown were arrested. At trial, M.W.
repeatedly denied working as a prostitute for Brown. However,
the prosecution played a 2014 audio recording between M.W. and
Detective Satwan Johnson for the jury. During that recording,
M.W. told Detective Johnson she provided money she earned
from prostitution to Brown, and Brown purchased clothes for her
to use when she worked as a prostitute.
G. Testimony of the Prosecution’s Expert Witness
Detective Johnson testified as the prosecution’s human
trafficking expert. He explained that individuals known as
pimps may persuade, entice, or manipulate young girls and
women into the commercial sex trade. Some pimps, known as
Romeo or boyfriend pimps, present themselves as someone who
cares for the woman and may clothe her, feed her, or house her.
In this way, the pimp systematically gains her trust and
convinces her to work for him as a prostitute and give him any
money she earns. Other pimps, known as gorilla pimps, use
aggression and violence to attain compliance with their demands,
which could include punching, slapping, or hitting with a belt.
The majority of pimps are a hybrid between these two types.
According to Detective Johnson, the area along Figueroa
Street intersected by the streets numbered in the 90s is a “pimp-
9
controlled” area, which is an area that a gang or a number of
pimps control.
Detective Johnson explained that pimps typically require
their prostitutes to get a tattoo on their face as a way of branding
them, to show other pimps they are his “property.” He further
testified that T.J. had a diamond tattoo on her forehead, which he
opined was a brand. Detective Johnson opined that another
tattoo on T.J.’s arm depicting the word “loyalty” referred to her
loyalty to her pimp.
Detective Johnson also reviewed a number of Brown’s
Instagram posts under the pseudonym “Diamond Dave” and
described how each related to pimping. For example, one post
stated, “I been done with 9 to 5. Bitch it’s 304’s [sic] only.”
Detective Johnson testified 304 spells out the word “hoe,” a slang
term for a prostitute. In another post, Brown stated, “Can’t wait
to break this bitch,” which Detective Johnson explained meant to
take money from a prostitute after she committed an act of
prostitution. Another post stated, “I can honestly say I
appreciate ma bitches. Keep it up lil [sic] hoes,” and included a
picture of several feet. Detective Johnson stated that the picture
of the feet alluded to the expression “ten toes down,” which refers
to a prostitute making money for her pimp.
H. T.J.’s Birth Certificate
The trial court admitted T.J.’s birth certificate as proof that
she was 17 years old at the time of the charged offense.
10
DISCUSSION
A. The Trial Court Did Not Err in Admitting the 911
Recording
Brown contends the trial court erred in admitting the
recording of Scott’s 911 call in violation of his Sixth Amendment
right to confrontation. During trial, Brown objected to the
introduction of the 911 recording on the ground that it did not
qualify as a spontaneous statement and was precluded by the
decision in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct.
1354, 158 L.Ed.2d 177] (Crawford).
In Crawford, the Supreme Court noted a difference
between testimonial and nontestimonial out-of-court statements,
and clarified that testimonial statements are the primary object
of the Confrontation Clause. (Crawford, supra, 541 U.S. at
pp. 51-53.) In Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct.
2266, 165 L.Ed.2d 224), the Supreme Court provided further
clarification concerning the type of statements that are deemed to
be testimonial, holding as follows: “Statements are
nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet
an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution.” (Id. at p. 822, fn. omitted.)
In Michigan v. Bryant (2011) 562 U.S. 344 [131 S.Ct. 1143,
179 L.Ed.2d 93], the Supreme Court again recognized that “not
all ‘interrogations by law enforcement officers’ [citation] are
subject to the Confrontation Clause.” (Id. at p. 355, fn. omitted.)
11
Relying on the analysis in Bryant, our state Supreme Court
summarized six guidelines courts should consider in examining
the primary purpose of an interrogation. (People v. Blacksher
(2011) 52 Cal.4th 769, 813-815.) First, “[t]he court must
objectively evaluate the circumstances of the encounter along
with the statements and actions of the parties.” (Id. at p. 813.)
Second, “[t]he court should consider whether an ‘ “ongoing
emergency” ’ exists, or appears to exist, when the statement was
made.” (Id. at p. 814.) Third, “[w]hether an ongoing emergency
exists is a ‘highly context-dependent inquiry.’ [Citation.] Even
when a threat to an initial victim is over, a threat to first
responders and the public may still exist.” (Ibid.) Fourth, “[t]he
medical condition of the declarant is a relevant consideration, as
it bears on both the injured declarant’s purpose in speaking and
the potential scope of the emergency.” (Ibid.) Fifth, “[a]
nontestimonial encounter addressing an emergency may evolve,
converting subsequent statements into testimonial ones.” (Ibid.)
“Finally, regardless of the existence of an emergency, the
informality of the statement and the circumstances of its
acquisition are important considerations. Inquiries that are
conducted in a disorganized way and in turbulent circumstances
are distinguishable from a jailhouse interview, as in Crawford, or
the sequestered and formal preparation of an affidavit . . . .
[Citation.]” (Id. at p. 815.)
Viewed objectively, T.J.’s statements to Scott, as relayed by
Scott to the dispatchers, were not elicited by Scott as part of a
formal investigation. Further, the circumstances during Scott’s
911 call indicated there was an ongoing emergency. At the start
of the call, Scott advised that a woman had been beaten. The
initial dispatcher’s questions focused on ascertaining the location
12
of the incident, the extent of the victim’s injuries, and the
whereabouts of the assailant. Scott’s second discussion with the
LAPD dispatcher centered on a description of the assailant, who
was still at large, and an assessment of any weapons used during
the attack. These questions were posed in response to a report of
a violent event and were necessary to establish the scope of the
emergency, and to assist in coordinating a response by emergency
services personnel. They “were the exact type of questions
necessary to allow the police to ‘ “assess the situation, the threat
to their own safety, and possible danger to the potential victim” ’
and to the public.” (Michigan v. Bryant, supra, 562 U.S. at
p. 376, quoting Davis v. Washington, supra, 547 U.S. at p. 832).
Therefore, the statements during the 911 call were
nontestimonial and did not implicate the Confrontation Clause.
B. The Trial Court Did Not Err in Admitting the Body
Camera Video
Brown also challenges the admission of the body camera
recording of the interaction between Officer Edwards and T.J. on
the ground that its admission violated the Confrontation Clause.
While Brown asserted the Confrontation Clause argument under
Crawford with respect to the 911 call, he failed to squarely raise
a Crawford objection with respect to the body camera recording.
We conclude that Brown forfeited his challenge under the
Confrontation Clause. (People v. Alvarez (1996) 14 Cal.4th 155,
186 [“ ‘ “questions relating to the admissibility of evidence will
not be reviewed on appeal in the absence of a specific and timely
objection in the trial court on the ground sought to be urged on
appeal” ’ ”].) We nonetheless exercise our discretion to consider
this issue on the merits. (People v. Denard (2015) 242
Cal.App.4th 1012, 1030, fn. 10 [“where an otherwise forfeited
13
claim presents an important question of constitutional law or a
substantial right, the appellate court may exercise discretion to
review the claim”].)
The circumstances of the encounter between T.J. and
Officer Edwards demonstrate the primary purpose of Officer
Edwards’ questioning was not to gather evidence for trial. At the
time Officer Edwards began to question T.J., she could not yet
conclude that the emergency had ended and that there was no
threat of violence to law enforcement or the public. Although the
record does not reflect how much time had elapsed since the
assault, the fact that T.J. continued to have labored respiration
and had tears streaming down her face, suggests that Officer
Edwards spoke to T.J. close in time to the assault. Officer
Edwards did not know who the assailant was, his relationship to
T.J., what he had used to injure T.J., whether the assailant
would return to the location a third time, or whether he was
likely to injure others.
Further, “the informality of the statement and the
circumstances of its acquisition” also weigh in favor of finding the
statements were nontestimonial. (People v. Blacksher, supra, 52
Cal.4th at p. 815.) T.J. made her statements while she was in
distress in the back of an ambulance. The statements were not
made during a structured question and response interaction.
Rather, one of the things that is striking about T.J.’s statements
is that she made them during a lengthy narrative, not directly
responsive to the immediate “yes or no” question put to her by
Officer Edwards. Based on the surrounding circumstances, we
conclude the statements were not testimonial. (See, e.g.,
Michigan v. Bryant, supra, 562 U.S. at pp. 376-377 [holding
shooting victim’s statements were nontestimonial when he was
14
questioned in a gas station parking lot prior to the arrival of
emergency medical services, by multiple officers in a disorganized
fashion]; People v. Brenn (2007) 152 Cal.App.4th 166, 178
[holding stabbing victim’s answers to police questions as he
waited for paramedics were not testimonial although police had
arrested assailant moments before].)
C. Any Error in Admitting the 911 Recording or Body
Camera Video Was Harmless
Assuming, arguendo, that the recordings constitute
testimonial hearsay, a violation of the Confrontation Clause is
subject to review to determine if the error was harmless beyond a
reasonable doubt. (People v. Garton (2018) 4 Cal.5th 485, 507,
citing Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct.
824, 17 L.Ed.2d 705].) In determining whether the error is
harmless, we consider “ ‘the importance of the witness’ testimony
in the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case.’ ” (People v. Mitchell
(2005) 131 Cal.App.4th 1210, 1225, fn. omitted, quoting Delaware
v. Van Arsdall (1986) 475 U.S. 673, 684 [106 S.Ct. 1431, 89
L.Ed.2d 674].)
The record demonstrates the statements on the 911 and
body camera recordings were duplicative of other evidence at
trial. T.J.’s birth certificate established she was a minor on
July 16, 2018. Investigator Sanchez’s testimony concerning his
arrest of T.J. just one month earlier in June 2018 for prostitution
established that T.J. recently had worked as a prostitute.
Houston’s testimony that she saw a photograph of T.J. on
15
Brown’s cell phone and texts of a sexual nature between them, as
well as the DNA samples, established that Brown and T.J. knew
each other and had a sexual relationship.
Further, the prosecution’s expert, Detective Johnson,
testified that pimps brand their workers. He opined the diamond
tattoo on T.J.’s forehead was such a brand. Indeed, the evidence
demonstrated Brown uses the Instagram name “Diamond Dave”
and also has a diamond tattoo on his face. Detective Johnson
opined that Brown engaged in communications on Instagram
typical of pimps. He also testified that the area where Brown
attacked T.J.—and where her cell phone was found—was a well-
known pimp-controlled area.
Moreover, Detective Johnson testified that pimps use
violence against their workers to control them, including
punching them. Scott observed Brown punching T.J. three times
one city-block away from the pimp-controlled neighborhood. T.J.
suffered from several cuts and bruises as well as “a huge gash” on
her forehead.
Taken together, the evidence is sufficient to establish
beyond a reasonable doubt that Brown induced a minor to engage
in an act of prostitution by use of force, fear or violence; inflicted
great bodily injury on T.J. during the course of an assault; and
engaged in sexual intercourse with her. Based on the strength of
the prosecution’s case, any error in admitting the two recordings
is harmless.
D. The Trial Court Did Not Abuse Its Discretion in
Permitting Testimony by W.F. and M.W.
At trial, the People presented W.F.’s and M.W.’s testimony
pursuant to Evidence Code section 1108, subdivision (a), to show
that Brown had a propensity to engage in the trafficking of
16
minors for commercial sex.4 Brown argues the admission of this
evidence concerning two 14-year-old girls was so inflammatory
and prejudicial that it rendered his trial fundamentally unfair, in
violation of the federal due process clause.
“The admission of relevant evidence will not offend due
process unless the evidence is so prejudicial as to render the
defendant’s trial fundamentally unfair.” (People v. Falsetta
(1999) 21 Cal.4th 903, 913.) Under Evidence Code section 1108, a
court may admit propensity evidence of a sexual offense if it “is
not inadmissible pursuant to [Evidence Code s]ection 352.” (Id.,
subd. (a).) Thus, “ ‘[t]he evidence is presumed admissible and is
to be excluded only if its prejudicial effect substantially
outweighs its probative value in showing the defendant’s
disposition to commit the charged sex offense or other relevant
matters.’ [Citation.]” (People v. Williams (2016) 1 Cal.5th 1166,
1196.)
“ ‘ “In applying [Evidence Code] section 352, ‘prejudicial’ is
not synonymous with ‘damaging.’ ” ’ ” (People v. Hollie (2010) 180
Cal.App.4th 1262, 1276.) “ ‘ “Undue prejudice” refers not to
evidence that proves guilt, but to evidence that prompts an
emotional reaction against the defendant and tends to cause the
trier of fact to decide the case on an improper basis.’ ” (Id. at.
pp. 1276-1277.)
4 Evidence Code section 1108, subdivision (a), states: “In a
criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by Section 1101, if
the evidence is not inadmissible pursuant to Section 352.”
17
We review the admission of evidence under Evidence Code
section 1108 for an abuse of discretion. (People v. Williams,
supra, 1 Cal.5th at pp. 1196-1197.)
The evidence of Brown’s involvement with W.F. and M.W.
was relevant to establish Brown’s manner of conducting his
pimping operation and managing the prostitutes who worked for
him. Their testimony showed that he had worked with minors in
the past and developed personal relationships with them, as he
did with T.J. Also, W.F. testified that she worked in the vicinity
of Figueroa Street where prostitutes commonly work, the same
area where T.J.’s cell phone was found, and a block away from
where Scott observed Brown assault T.J. This evidence tended to
corroborate the charge of trafficking of a minor for commercial
sex involving T.J. (See People v. Hollie, supra, 180 Cal.App.4th
at p. 1274 [“ ‘The principal factor affecting the probative value of
an uncharged act is its similarity to the charged offense’ ”].)5
Although Brown focuses on W.F.’s and M.W.’s actual ages,
the jury learned that W.F. lied to Brown and told him she was 17
years old and M.W. was 16 years old. Also, their testimony
centered on Brown’s day to day pimping operations and did not
include any reference to the use of force, fear, or violence. We
conclude that although the testimony by W.F. and M.W. may
have been damaging, it was not so prejudicial as to outweigh its
probative value. (People v. Hollie, supra, 180 Cal.App.4th at
5 The offenses Brown committed with W.F. and M.W. in
2014 were not remote in time because Brown was imprisoned
during the interim period for convictions related to W.F. and
M.W. (See People v. Hollie, supra, 180 Cal.App.4th at p. 1276
[two sex offense incidents, committed within two years of each
other, were not remote in time].)
18
pp. 1276-1277.) Therefore, the trial court did not abuse its
discretion, and the admission of the evidence did not render the
trial fundamentally unfair under the due process clause.
Moreover, for the reasons discussed above, due to the strength of
the prosecution’s case, any error was harmless.
Because we have found no error in the trial court’s
admission of the recordings or W.F.’s or M.W.’s testimony,
Brown’s cumulative error argument fails. (See People v. Myles
(2012) 53 Cal.4th 1181, 1225; People v. Cunningham (2001) 25
Cal.4th 926, 1009.)
E. The One-year Sentencing Enhancement Imposed
Under Section 667.5 Must be Stricken
At the time of Brown’s sentencing, section 667.5,
subdivision (b), imposed a one-year enhancement for each prior
separate prison term served. Effective January 1, 2020, Senate
Bill No. 136 amended section 667.5, subdivision (b), to apply only
when the defendant served a “separate prison term for a sexually
violent offense as defined in subdivision (b) of Section 6600 of the
Welfare and Institutions Code.” (§ 667.5, subd. (b), italics added;
see Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) Brown’s prior
prison term was based on a conviction of human trafficking under
section 236.1, subdivision (c). That crime is not enumerated
under Welfare and Institutions Code section 6600, subdivision
(b). Thus, under the newly-amended version of section 667.5, a
one-year sentencing enhancement could not be imposed.
Because the judgment against Brown is not yet final, he is
entitled to the retroactive benefit of the change in the law.
(People v. Lopez (2019) 42 Cal.App.5th 337, 341 [finding Sen. Bill
No. 136 applies to non-final judgments on appeal]; see In re
Estrada (1965) 63 Cal.2d 740, 744-746 [absent evidence of
19
legislative intent to the contrary, ameliorative statutory
amendments apply to all defendants whose judgments are not yet
final].)
DISPOSITION
The matter is remanded to the superior court with
instructions to strike the one-year enhancement imposed under
section 667.5, subdivision (b). In all other respects, the judgment
is affirmed. The trial court is directed to prepare an amended
abstract of judgment and forward a certified copy to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
FEDERMAN, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
20