People v. Calhoun CA3 ( 2024 )

Filed 5/24/24 P. v. Calhoun CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C097276
Plaintiff and Respondent, (Super. Ct. No. 22FE006407)
v.
OMAR CALHOUN,
Defendant and Appellant.
A jury found defendant Omar Calhoun guilty of two counts of pandering and
found true multiple aggravating circumstance allegations based primarily on the
testimony of a police detective and transcripts of defendant’s online messages. On
appeal, defendant argues several items of evidence, including the messages and the
detective’s testimony, were inadmissible hearsay, and that the trial court erred when it
instructed the jury on the aggravating circumstances. Defendant also claims insufficient
evidence supports the aggravating circumstance findings.
1
We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The prosecution charged defendant with two counts of pandering (Pen. Code,
§ 266i, subd. (a)(2), unless otherwise stated, statutory section citations that follow are to
the Penal Code; counts one and three), one as to an undercover police detective and
another as to victim R.D., and one count of pimping (§ 266h, subd. (a); count two) as to
R.D. As to counts two and three, the prosecution alleged the victim was particularly
vulnerable (Cal. Rules of Court, rule 4.421(a)(3); unless otherwise designated, rule
citations are to the California Rules of Court) and defendant took advantage of a position
of trust or confidence (rule 4.421(a)(11)). As to all counts, the prosecution alleged the
crime involved planning, sophistication, or professionalism (rule 4.421(a)(8)); defendant
engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1));
defendant had prior convictions that were numerous or of increasing seriousness (rule
4.421(b)(2)); and defendant served a prior term in prison or jail (rule 4.421(b)(3)). The
prosecution later dismissed the allegation of violent conduct.
At trial, Detective Anthony Figueroa testified as an expert in pimping culture and
discussed his investigation of defendant. He discussed different pimping styles and how
pimps groom sex workers by treating them nicely, then encouraging them to “have sex
with somebody for money.” A “boyfriend pimp” was “more manipulative in nature,”
while a “gorilla pimp” used more “brute strength and violence.”
The detective maintained a Facebook account for undercover investigation work.
In the account, he used the name Aaliyah Velasquez. In April 2022, Velasquez’s account
received a message from “Otis Houn.” The detective believed this account belonged to
defendant because the account posted a self-portrait picture of defendant, which showed a
distinctive facial tattoo. Houn also mentioned he had been in prison for 16 years, and the
parties stipulated defendant had been in prison multiple times between 2007 and 2018.
2
The prosecution walked the detective through 25 pages of text exchanges between
Velasquez and defendant and asked the detective to interpret the messages. Among other
things, defendant said he was looking for a “stomp down bitch,” which the detective
understood to mean defendant was looking to recruit a sex worker. Defendant asked
Velasquez to “come home,” which meant he wanted her to go “with him to be his sex
worker.” Defendant discussed business practices as a sex worker, his previous sex
workers, and Velasquez’s online ads. Defendant told Velasquez her “choose up fee”
would be $2,000 if she wanted to “trap” with him, which the detective explained meant
she had to pay him $2,000 if she wanted to earn money through prostitution with him.
Detective Figueroa also discussed conversations he uncovered between defendant
and a Facebook user named “Sadityy Ocasio,” whom he determined was R.D. based on
the photos on the account. Among other things, defendant referred to himself as “the
hardest stepper from Reno ever,” which the detective interpreted to mean that defendant
was bragging, calling himself the “hardest pimp there is in Reno.” He told R.D. they
could “build something” together and gave her his phone number. Detective Figueroa
explained this meant defendant wanted to earn money with R.D. The two discussed the
process of making an escort ad for Mega Personal, a website. Defendant wanted R.D. to
be his “bottom bitch,” or his “right-hand prostitute.”
Finally, Detective Figueroa discussed a series of messages between defendant and
another individual, C.O. Defendant said he wanted her to work for him as a sex worker.
The jury found defendant guilty of both pandering counts, but not guilty on the
pimping count. The jury also found true the allegations the crimes involved planning,
sophistication, or professionalism as to both pandering counts. For the pandering count
as to R.D., the jury also found true the allegations the victim was particularly vulnerable,
and defendant took advantage of a position of trust or confidence to commit the crime. In
a bench trial, the trial court found true the allegations defendant’s prior convictions are
numerous or of increasing seriousness, and defendant served a prior prison term.
3
At the sentencing hearing, the trial court noted the numerous aggravating
circumstances that had been found true and the lack of mitigating circumstances and
imposed the upper term sentence of six years for the first pandering count, with a 16-
month sentence (one-third the midterm) for the second pandering count, for a total
aggregate sentence of seven years four months.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Hearsay
Defendant argues the trial court erroneously admitted the Facebook message logs
and Mega Personals ads involving R.D. because both sets of documents were hearsay.
Defendant also argues several portions of Detective Figueroa’s testimony were
inadmissible hearsay opinions that drew conclusions about defendant’s guilt. Defendant
acknowledges defense counsel did not object to the admission of any of these items, but
asserts he received ineffective assistance of counsel. We conclude the issue was forfeited
and find no ineffective assistance of counsel.
A. Additional Background
Before trial, the prosecution filed a motion in limine to admit expert testimony by
Detective Figueroa. Defense counsel did not object. The trial court granted the motion,
but laid out restrictions for the testimony, saying, “[t]hey cannot testify that [defendant] is
a pimp. Obviously that’s up for the jury to decide that issue, but they can talk about the
general culture surrounding life as it’s known in pimping and pandering.”
The prosecution proceeded to admit, without objection, Facebook message logs
showing messages between defendant and R.D., as well as the other Facebook accounts.
4
The trial court also received into evidence a certificate of authenticity from the document
custodian of the message logs.
The prosecution also moved Mega Personals ads featuring R.D. into evidence
without objection. The prosecution used the ads to discuss the mechanics of posting an
ad for sex buyers and establish R.D. was posting such ads in April 2022. The ad read,
“Tired of fake pic[s], then you’ll love me. 100 percent real. No bait and switch. Clean
and discreet. My exotic looks and bubbly personality are sure to put your mind at ease
and have you coming back for more.”
Detective Figueroa testified about the ads, R.D.’s pictures, and several of
defendant’s messages. On appeal, defendant highlights several portions of Figueroa’s
testimony, including:
(1) a statement that a Mega Personals ad was an “advertisement to lure sex
buyers”;
(2) statements about R.D.’s pictures, opining that she was dressed “for the
purposes of prostitution”;
(3) an interpretation of defendant’s message referring to himself as the “hardest
stepper from Reno” to mean he is “essentially the hardest pimp there is in Reno”;
(4) an interpretation of defendant’s message about his age and time in the “pen” to
mean “he’s old, being a 36-year-old, but he’s still young at heart, is how I’m taking that,
and that he served 16 years in prison”;
(5) an opinion that defendant was “grooming” R.D. when he told her they could
“build something” and gave her his phone number;
(6) an opinion that defendant was “trying to recruit [R.D.] and to entice her to
come over to work for him as a prostitute” when he told R.D. they could earn some
money and he would help her take classes;
(7) an interpretation of defendant’s message saying he would help “get [R.D.]
mobile” to mean that defendant was going to help her get a car;
5
(8) interpretations of R.D.’s messages about posting Mega Personal ads;
(9) an interpretation of defendant’s message saying, “I drive across country for the
money” to mean that defendant was coming to pick R.D. up, but wanted to know how
much money she made;
(10) a characterization of defendant’s statements to mean that defendant was
“grooming” R.D. and was “not essentially the kind of person that’s going to beat on her
like a -- for instance, like a gorilla pimp would . . . he’s using more like finesse in this
conversation.”
Defense counsel did not object to any of these statements.
The trial court instructed the jury as to expert testimony using CALCRIM
No. 332, which explained the jury was “not required to accept [expert opinions] as true or
correct. The meaning and importance of any opinion are for you to decide.”
Defense counsel argued in closing the jury should not credit Detective Figueroa’s
testimony, saying, “Officer Figueroa . . . does not understand these terms as well as he
thinks he does and that much should be clear. He gave us a lot of general knowledge
about pimping. . . But we are not talking about the general nature of things. We are
talking about specifics. We are talking about the specific facts in this case, not generally
what happens with pimping. That gives us nothing. That doesn’t inform us of anything.
We are talking about the facts that were established right here in this courtroom.”
B. Analysis
Under Evidence Code section 353, “A verdict or finding shall not be set aside, nor
shall the judgment or decision based thereon be reversed, by reason of the erroneous
admission of evidence unless: [¶] (a) There appears of record an objection to or a
motion to exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion.” Thus, a “ ‘defendant’s failure to
make a timely and specific objection’ on the ground asserted on appeal makes that
6
ground not cognizable.” (People v. Partida (2005) 37 Cal.4th 428, 434.) Forfeiture
extends to asserted violations of the “federal rights to due process and confrontation.”
(People v. Burgener (2003) 29 Cal.4th 833, 869.)
Defendant did not raise any hearsay objections in his motions in limine, during the
admission of the messages or ads, or during Detective Figueroa’s testimony. Nor did he
invoke his federal constitutional rights. Defendant forfeited the issue.
Anticipating this conclusion, defendant argues he received ineffective assistance
of counsel because defense counsel failed to object on hearsay grounds.
To prevail on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) the deficient performance prejudiced defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692; People v. Ledesma (1987)
43 Cal.3d 171, 216-218.) To show prejudice, a “defendant must also show ‘ “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” ’ ” (People v. Torres (1995) 33 Cal.App.4th 37,
49.) A reviewing court may reject a claim of ineffective assistance of counsel without
addressing both components if a defendant makes an insufficient showing as to either
prong. (Strickland, at p. 697.) “ ‘[A] mere failure to object to evidence . . . seldom
establishes counsel’s incompetence.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567.)
1. Facebook Messages and Mega Personals Ads
Defendant acknowledges the certification of authenticity as to the Facebook
message logs but argues that even if the documents are admissible as business records,
the “content inside the records of communication,” in the form of R.D.’s messages, still
qualifies as hearsay and was thus inadmissible. He claims trial counsel should still have
objected to their admissibility. We conclude the Facebook records were admissible and
trial counsel’s failure to object was reasonable.
7
“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay evidence
is inadmissible.” (Evid. Code, § 1200, subd. (b).)
One exception to the hearsay rule is for a defendant’s own statements. (Evid.
Code, § 1220.) Similarly, the hearsay statements of a person with whom a defendant is
communicating are admissible to give context or meaning to a defendant’s statements
admitted under Evidence Code section 1220. (People v. Turner (1994) 8 Cal.4th 137,
188-189, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555,
fn. 5.) Business records “made in the regular course of a business” that are “made at or
near the time” of an event or act are also admissible where a custodian of records testifies
to their identity or mode of preparation. (Evid. Code, § 1271.)
Some statements do not constitute hearsay because their truth or falsity is
irrelevant; it is the making of the statement at all that is relevant. For example, the
hearsay rule does not apply to directives or requests. (People v. Jurado (2006) 38 Cal.4th
72, 117; People v. Reyes (1976) 62 Cal.App.3d 53, 67.) Similarly, in cases involving
prostitution, the hearsay rule does not apply to communications that constitute the
negotiation of sex acts. (People v. Dell (1991) 232 Cal.App.3d 248, 262.) In this
context, “the content of the words spoken is irrelevant, the significance is in the fact the
words were uttered at all. [Such] statements could be admitted as ‘operative facts’ or
‘verbal acts’ because they demonstrated an issue in the case: that the escorts were
making verbal offers to enter into contracts of prostitution . . . . The purpose of this
evidence, in turn, was to prove appellant’s business involved prostitution as an element of
the pimping and pandering charges.” (Ibid.)
“Pandering is a specific intent crime” and criminalizes the “ ‘knowing and
purposeful conduct of any person seeking to encourage “another person” to work with the
8
panderer or another pimp in plying the prostitution trade.’ ” (People v. Campbell (2020)
51 Cal.App.5th 463, 487.)
Here, the Facebook records were admissible as business records. The prosecution
provided a certification from the custodian of records indicating that the records were
(1) made in the regular course of business; (2) made at or near the time the messages
were transmitted; and (3) the custodian had reviewed the records, certified their
authenticity, and explained how they were prepared.
Nothing about the certificate or the records indicates they were untrustworthy.
The custodian was not required to establish that defendant was the account holder for the
records to be admissible. Once the prosecution made a “preliminary showing” of the
document’s authenticity using circumstantial evidence -- such as defendant’s self-portrait
on the account -- they were admissible. (People v. Flinner (2020) 10 Cal.5th 686, 729;
see also People v. Calhoun (2019) 38 Cal.App.5th 275, 314-315.) Defendant’s dispute as
to the identity of the account holder goes only to the weight of the evidence, not its
admissibility. (People v. Flinner, at p. 727.)
We likewise reject defendant’s blanket argument that, even if the records
themselves were admissible, R.D.’s statements within the records created a second layer
of inadmissible hearsay. As an initial matter, defendant does not identify which
statements R.D. made that constitute hearsay. And R.D.’s statements were not admitted
for their truth; for example, to prove that she actually had been banned from the Mega
Personals website or to show that she was having a difficult time in her life. Rather, they
were admitted to show the nature of her relationship with defendant and demonstrate the
nature of his business involved prostitution. They were thus admissible to prove the
specific intent requirement of pandering. (People v. Campbell, supra, 51 Cal.App.5th at
p. 488.) Because the Facebook logs were admissible, trial counsel could not have
successfully objected on hearsay grounds.
9
Defendant argues there was no foundation for the business records exception as to
the Mega Personal ads. We agree but see no prejudice in their admission. The only
apparent purpose of the ads was to illustrate Detective Figueroa’s discussion of how ads
for sex work could be posted online and to corroborate the exchanges between defendant
and R.D. about R.D. posting ads. Visual aids were not required for the detective to
explain the process in an effective way. And, the Facebook message logs, which
included screen shots of the Mega Personals website, established defendant was directing
R.D. to post ads seeking sex buyers. Accordingly, defendant has not carried his burden
to prove the admission of the ads were prejudicial and counsel did not provide ineffective
assistance.
2. Detective Figueroa’s Testimony
Defendant argues trial counsel provided ineffective assistance by failing to object
at various points in Detective Figueroa’s testimony and that the detective’s
“interpretations of the on-line photographs and pages he reviewed were the only evidence
relied upon by the prosecution to prove the pandering charge.” We conclude the
testimony defendant complains of was either permissible or nonprejudicial.
“An expert may give opinion testimony ‘[r]elated to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier of fact.’
[Citation.] ‘That is not to say, however, that the jury need be wholly ignorant of the
subject matter of the expert opinion in order for it to be admissible. [Citation.] Rather,
expert opinion testimony “ ‘will be excluded only when it would add nothing at all to the
jury’s common fund of information, i.e., when “the subject of inquiry is one of such
common knowledge that [those with] ordinary education could reach a conclusion as
intelligently as the witness” ’ [citation].” [Citation.]’ [Citation.] ‘The trial court has
broad discretion in deciding whether to admit or exclude expert testimony [citation], and
its decision as to whether expert testimony meets the standard for admissibility is subject
10
to review for abuse of discretion.’ [Citation.]” (People v. Brown (2014) 59 Cal.4th 86,
101.)
“A witness may not express an opinion on a defendant’s guilt. [Citations.] The
reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion
testimony often goes to the ultimate issue. [Citations.]” (People v. Vang (2011)
52 Cal.4th 1038, 1048.) “[A]n expert’s opinion that a defendant is guilty is both
unhelpful to the jury — which is equally equipped to reach that conclusion — and too
helpful, in that the testimony may give the jury the impression that the issue has been
decided and need not be the subject of deliberation.” (People v. Prince (2007) 40 Cal.4th
1179, 1227.) An expert may, however, testify in some cases that an element of a crime
has been satisfied. (People v. Torres, supra, 33 Cal.App.4th at p. 47.)
We find the analysis in People v. Leonard (2014) 228 Cal.App.4th 465 persuasive.
There, a detective expert in a pandering trial reviewed the defendant’s social media
postings opined that the defendant was a “finesse pimp” that later developed into a
“gorilla pimp[].” (Id. at p. 492.) The detective answered affirmatively when asked
whether he saw “patterns of behavior in pimping in manipulation and control of women
in the testimony” he heard during trial. (Ibid.) He also interpreted the defendant’s social
media postings and said the defendant’s style “mimicked successful pimps.” (Ibid.)
The appellate court divided the testimony into two categories. The testimony
interpreting the defendant’s social media and opinion that the defendant was attempting
to mimic a successful pimp. (People v. Leonard, supra, 228 Cal.App.4th at p. 493 fn. 9.)
The testimony opining what kind of pimp the defendant was and saying what “patterns of
behavior in pimping” he saw in the trial testimony was “unhelpful,” however, and the
court assumed the trial court abused its discretion in admitting it. (Id. at p. 493.) The
court found any error harmless, however, because the improper testimony was brief, the
other evidence against defendant was overwhelming, and the jury was instructed with
11
CALCRIM No. 332, which told the jury it could evaluate the expert opinion testimony
for itself. (Id. at p. 494.)
Here, as in Leonard, Detective Figueroa opined on defendant’s social media
postings and messages. The detective interpreted defendant’s messages on topics
including defendant’s references to himself as a pimp and his background in prison,
defendant’s references to “build[ing] something” with R.D., defendant’s offer to “get
[R.D.] mobile,” the process of posting a Mega Personal ad and description of the ad
itself, and defendant’s reference to driving “across country for the money.” None of
these explanations of the postings and messages offered opinions on defendant’s guilt or
innocence; rather, they translated defendant’s messages into understandable language in
the context of pimping and pandering culture.
The detective’s testimony that some of defendant’s actions appeared to be
“grooming” behavior was similarly admissible. As Detective Figueroa explained,
“grooming” was a term used to describe the process to “woo over the victim” so the
victim “will do anything to make them happy.” A statement characterizing defendant’s
behavior as “grooming” is thus distinguishable from an opinion as to his guilt or
innocence as to pandering; “grooming” describes a particular approach to the victim that
may lead to pandering, but it is not itself the crime.
Likewise, Detective Figueroa’s statement that defendant was “not essentially the
kind of person that’s going to beat on her like a -- for instance, like a gorilla pimp would
. . . he’s using more like finesse in this conversation” was admissible. “Simply because
something a defendant does is ‘consistent with’ the modus operandi of some underworld
caper, does not make him guilty of an offense.” (People v. Crooks (1967)
250 Cal.App.2d 788, 792, fn. omitted.) The same can be said of the testimony that R.D.’s
appearance was “consistent with” a sex worker’s appearance. Neither of these statements
opined on defendant’s guilt or innocence; they merely described his behavior as similar
12
to illegal behavior and were thus admissible. (People v. Leonard, supra, 228 Cal.App.4th
at p. 493 fn. 9.)
By translating defendant’s statements into readily understandable language, the
detective’s testimony assisted the jury in understanding defendant’s behavior in the
pimping and pandering culture. And because the statements were admissible, trial
counsel did not provide ineffective assistance by failing to object.
To the extent Detective Figueroa did opine on defendant’s guilt, as when he said
defendant was “trying to recruit [R.D.] and to entice her to come over to work for him as
a prostitute,” we conclude similarly to People v. Leonard that the reference was harmless.
(People v. Leonard, supra, 228 Cal.App.4th at pp. 493-494.) Here, as in People v.
Leonard, the jury was instructed with CALCRIM No. 332 and could weigh the expert
opinion as it saw fit. The offending testimony comprised only a small part of the
detective’s testimony and the remainder of the testimony, which covered defendant’s
messages saying he wanted R.D. to work for him and solicit sex work, directed her to
create an escort ad, and described himself as a pimp, were persuasive evidence that he
was attempting to recruit R.D. as a prostitute. We thus conclude defendant has not
established prejudicial error based on trial counsel’s failure to object.
II
Jury Instructions
Defendant claims the jury instructions used for the aggravating circumstances did
not adequately inform the jury of the legal requirements for each circumstance.
Defendant notes that the applicable pattern jury instructions, which did not exist at the
time of trial, include various requirements that were not part of the trial court’s
instructions. The People respond defendant forfeited this issue because defense counsel
did not object to the instructions before the trial court. Even assuming the issue was
preserved, however, we see no merit in defendant’s argument.
13
A. Additional Background
At the end of trial, the parties discussed the jury instructions. The prosecution
proposed jury instructions for the aggravating factors involving the particular
vulnerability of the victim, the sophistication and planning involved in the crime, and the
fact defendant took advantage of a position of trust. Defense counsel stated he was
satisfied with those instructions.
The trial court instructed the jury on the applicable aggravating factors. First, as to
the victim’s particular vulnerability, the trial court stated, “The People allege that the
alleged victim of the offense charged in Count 2 and 3 was particularly vulnerable. You
must determine if this allegation is true. [¶] A victim is vulnerable if he or she is
defenseless, unguarded, unprotected, assailable, and susceptible to a Defendant’s attack.
[¶] The term particularly as used in this instruction means the victim was vulnerable to a
special or unusual degree. [¶] The People have the burden of proving this allegation
beyond a reasonable doubt. If the People have not met this burden, you must find that the
allegation has not been proven.”
As to the criminal sophistication factor, the trial court stated, “The People allege
that the Defendant used planning, sophistication, or professionalism in the commission of
the crimes for which he has been charged. [¶] If you find him guilty of Count 1, 2, or 3,
you must determine if this allegation is true. [¶] Planning involves formulating a plan or
scheme to commit the crimes for which the Defendant has been charged. [¶] The People
have the burden of proving this allegation beyond a reasonable doubt. If the People have
not met this burden, you must find that the allegation has not been proved.”
For the position of trust aggravating circumstance, the trial court instructed, “The
People allege that the Defendant in the commission of the crimes charged in Counts 2
and 3 took advantage of a position of trust or confidence. You must determine if this
allegation is true. [¶] To find this factor to be true, you must conclude that the victim of
14
the crime for which the Defendant was charged trusted or relied upon the Defendant, and
that the Defendant used this trust or reliance to assist him in the commission of the crime.
[¶] The People have the burden of proving this allegation beyond a reasonable doubt. If
the People have not met this burden, you must find that the allegation has not been
proved.”
B. Analysis
We review claims of instructional error de novo. (People v. Mitchell (2019)
7 Cal.5th 561, 579.) We must review the wording of the jury instruction and assess
whether it accurately states the law. (Ibid.) We must consider whether a reasonable
likelihood exists that the challenged instruction “caused the jury to misapply the law in
violation of the Constitution. [Citations.] The challenged instruction is viewed ‘in the
context of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.’
[Citation.]” (Ibid.) “There is no error in a trial court’s failing or refusing to instruct on
one matter, unless the remaining instructions, considered as a whole, fail to cover the
material issues raised at trial. As long as the trial court has correctly instructed the jury
on all matters pertinent to the case, there is no error.” (People v. Dieguez (2001)
89 Cal.App.4th 266, 277.)
As to the victim’s particular vulnerability, defendant argues the trial court did not
direct the jury to “consider all surrounding circumstance[s]” or to find that the
“defendant’s conduct was distinctly worse than the ordinary commission of the crime.”
But the trial court instructed the jury that “particularly” means “vulnerable to a special or
unusual degree,” which is consistent with the law and requires a finding the victim was
uniquely vulnerable. (People v. Smith (1979) 94 Cal.App.3d 433, 436.) In other words,
the jury was required to find the victim was distinctly more vulnerable than an ordinary
victim. Thus, it was not necessary to further explain defendant’s conduct must have been
15
worse than in the “ordinary commission of the crime.” Likewise, the trial court
instructed the jury to “consider all the evidence.” We see little reason why an additional
instruction to “consider all surrounding circumstance[s]” would be necessary.
Similarly, defendant argues the criminal sophistication instruction did not define
sophistication or professionalism, did not direct the jury to consider the totality of the
circumstances, and did not require proof defendant’s conduct was distinctly worse than
the ordinary commission of the crime. As with the particular vulnerability instruction,
we see no risk the jury misapplied the instruction, even absent these elements. First, the
given instruction does define “planning,” and defendant does not object to the trial
court’s definition of that term. Because the aggravating circumstance requires “planning,
sophistication or professionalism,” the factor may be satisfied by any one of those three
requirements; thus, even if the instruction only permitted a true finding based on
defendant’s planning, rather than his sophistication or professionalism, the instruction
would still be adequate. (Cf. People v. Duran (1982) 130 Cal.App.3d 987, 990.) Second,
neither “sophistication” nor “professionalism” have legal meanings that are significantly
different than the common understanding of the terms. (See CALCRIM No. 3230.) The
jury was instructed in CALCRIM No. 200 that any undefined terms were “to be applied
using their ordinary, everyday meanings.” Thus, any additional definitions were
unnecessary. And, as with the particular vulnerability instruction, an additional
instruction to consider the totality of the circumstances would not make a difference
because the jury was already instructed to consider all evidence.
Finally, defendant argues the position of trust instruction did not require “that the
defendant formed a relationship with the victim that allowed him to occupy a position of
trust and that his conduct was distinctly worse than an ordinary commission of the
underlying crime.” The trial court instructed the jury, however, that the factor required
“the victim . . . trusted or relied upon the defendant and that the defendant used this trust
or reliance to assist him in the commission of the crime.” This instruction adequately
16
informs the jury that the victim and defendant must have had a relationship that gave the
defendant a position of trust. The instruction also captures the substance of CALCRIM
No. 3233, which requires: (1) the defendant had/developed a relationship with the
victim; (2) the relationship caused the victim to have confidence in the defendant; and
(3) the defendant took advantage of this position of trust or confidence to commit the
crime.
Although the criminal sophistication and position of trust instructions did not
include an express statement that the aggravating facts must make defendant’s conduct
“distinctly worse” than an “ordinary commission” of the crime, we disagree the
instructions were inadequate as a result. While defendant is correct that an aggravating
circumstance must “make[] the offense ‘distinctively worse than the ordinary’ ” (People
v. Black (2007) 41 Cal.4th 799, 817), “[c]ourts applying that standard have not imagined
an abstract, ‘ordinary case’ to determine whether a finding of an aggravating
circumstances is warranted by the facts of the case. Rather, they have considered
whether the manner of the crime’s commission was distinctively worse ‘when compared
to other ways in which such a crime could be committed.’ ” (Chavez Zepeda v. Superior
Court (2023) 97 Cal.App.5th 65, 89.)
The trial court instructed the jury that, to find defendant guilty of pandering, the
prosecution was required to prove: 1) defendant used promises to persuade R.D. to
become a prostitute and 2) defendant intended to influence R.D. to be a prostitute.
(CALCRIM No. 1151.) The trial court then instructed the jury on the aggravating
factors, saying the prosecution was required to prove, beyond a reasonable doubt, that the
crime involved a “planning, sophistication or professionalism” and defendant “took
advantage of a position of trust or confidence.” Because the aggravating circumstance
requirements did not overlap with the elements of the crime, the instructions together
make clear the jury had to find additional facts, beyond the basic elements of the offense,
to find the aggravating factors true. While an express statement that the aggravating facts
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must make the offense distinctively worse than ordinary is a correct statement of law, we
see little chance the jury misapplied the instruction because the trial court omitted such a
statement.
We conclude the trial court did not err in its instructions on the aggravating
circumstances. We thus need not reach defendant’s claim that he received ineffective
assistance of counsel because trial counsel failed to object to the instructions; “defense
counsel is not required to make futile motions or to indulge in idle acts to appear
competent.” (People v. Kendrick (2014) 226 Cal.App.4th 769, 780.)
III
Insufficient Evidence
Defendant argues the jury’s findings as to the aggravating circumstances are not
supported by sufficient evidence.
We review the sufficiency of the evidence “ ‘in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the [aggravating circumstance] beyond a reasonable doubt.’ ” (People v.
Boyce (2014) 59 Cal.4th 672, 691.) We presume “the existence of every fact that the trier
of fact could reasonably deduce from the evidence.” (People v. Medina (2009)
46 Cal.4th 913, 919.) In making this determination, we do not reweigh the evidence,
resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
A. Particularly Vulnerable Factor
For purposes of the particularly vulnerable factor, “ ‘ “[p]articularly . . . means in a
special or unusual degree, to an extent greater than in other cases” ’ ” and
“ ‘ “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one
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who is susceptible to the defendant’s criminal act.” ’ ” (People v. DeHoyos (2013)
57 Cal.4th 79, 154.)
Here, R.D. told defendant she was not at a “good point in her life”; she had been in
a car accident in which she sustained serious injuries and did not have a car. She said she
was “lost and confused these days” and described her challenges as a mother, saying
aside from her parents, she had nobody to rely on. She wanted to make sure defendant
wasn’t just looking for money. She warned defendant she had mental health issues.
Based on R.D.’s personal characteristics, including her precarious life situation and
mental health issues, a reasonable jury could conclude that R.D. was particularly
vulnerable to defendant’s approach.
We reject defendant’s assertion that most victims of pandering have histories of
“abuse, neglect, or rape,” and that R.D. was not more vulnerable than the typical victim.
As noted above, “distinctively worse than the ordinary” means only worse “ ‘when
compared to other ways in which such a crime could be committed.’ ” (Chavez Zepeda v.
Superior Court, supra, 97 Cal.App.5th 65 at p. 89.) Pandering requires a defendant to
induce or encourage a victim to become a prostitute through “promises, threats, violence,
or by any device or scheme.” (§ 266i, subd. (a)(2).) The basic elements of the crime do
not require a defendant to target individuals suffering from mental health issues or other
difficult life circumstances. Thus, R.D.’s characteristics could make her “particularly
vulnerable,” regardless of the circumstances of other, hypothetical victims.
B. Planning Factor
Sophistication, planning, or professionalism can be shown even if a defendant is
“not a particularly sophisticated person,” so long as the crimes at issue are methodical or
involve “significant planning.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1259.)
Planning can be shown by behavior that demonstrates conduct for a specific purpose.
(See People v. Forster (1994) 29 Cal.App.4th 1746, 1758-1759.)
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Here, defendant had a clear method of recruiting sex workers that targeted the
victims’ needs, including money, housing, and love. He also had a specific management
structure for those he recruited into prostitution. Even if, as defendant argues, the victims
were randomly targeted initially, defendant attempted to fit victims into his plan once he
identified them as vulnerable individuals. We likewise find unpersuasive defendant’s
argument that he “was not engaged in a sophisticated operation” because he was arrested
without seeing any profit. Nothing precludes the use of this aggravating factor for a
crime that has been foiled.
And, as above, we reject defendant’s contentions that his scheme to recruit sex
workers was not distinctively worse than the ordinary because his methods were “pretty
common.” The sophistication of defendant’s scheme exceeds the required elements of
the pandering offense, and defendant’s attempts to manipulate R.D. and fit her into his
prostitution scheme could convince a reasonable factfinder that the crime involved more
sophistication or planning than was otherwise required.
C. Position of Trust Factor
A defendant can abuse a position of trust by using his relationship with the victim
to achieve his aims in a way that goes “beyond the elements of the offense.” (People v.
DeHoyos, supra, 57 Cal.4th at p. 155.)
After R.D. conveyed her difficult life situation, defendant told her he would take
care of her and her children saying, “I got you and your kids without a question.” After
she told him she was looking for someone who would make her feel “safe and secure”
and who would “always be here” for her, defendant assured her he would “keep you close
to me.” He assumed a position in R.D.’s life such that he controlled her movements and
monitored her location. He reassured her about their relationship and told her he wanted
her communicating with him “at all times.” Detective Figueroa explained victims could
be “manipulated into thinking that the pimp is there for her best interest” and that they
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may work for pimps based on their emotional attachment to the pimp. These facts are
adequate to conclude defendant had placed himself in a position of confidence as to R.D.
beyond the basic elements of the pandering charge. There was sufficient evidence to
support this factor.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
RENNER, J.
KRAUSE, J.
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