People v. Brown

Filed 8/10/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C078620
Plaintiff and Respondent, (Super. Ct. No. SF128800A)
v.
CHESTER LLEWELL BROWN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Joaquin County, Richard
Mallet, Judge. Affirmed.
The Law Offices of Janelle Caywood and Janelle E. Caywood, Retained Counsel
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Peter W.
Thompson, Deputy Attorney General, for Plaintiff and Respondent.
1
A jury found defendant Chester Llewell Brown guilty of two counts of human
trafficking involving two different victims. During the trial, the jury heard evidence that
defendant was essentially pimping minors, in at least one instance against their will.
Proposition 35, the Californians Against Sexual Exploitation Act (sometimes
referred to as the CASE Act), adopted by the People at the 2012 General Election, was
designed in part to protect trafficked minors by treating them as victims, not criminals,
and ensuring they receive services to protect them from exploitation. (See In re M.D.
(2014) 231 Cal.App.4th 993, 998-999.) Defendant‟s claims concern the application and
certain aspects of this law.
Defendant first notes that D. Doe (D.), the named victim in count two, was treated
as his coconspirator for the purpose of introducing hearsay evidence. D. was a 14-year-
old prostitute who helped defendant recruit 17-year-old prostitute B. Doe (B.), the named
victim in count one, to work for him. D. did not testify, but her statements and texted
conversations with defendant were introduced. Defendant argues that because D. was
immune from prosecution for trafficking under Proposition 35, she could not have been
his coconspirator, and her out-of-court statements therefore constitute inadmissible
hearsay. As we will explain, we conclude that D. was properly deemed an uncharged
coconspirator for purposes of Evidence Code section 1223, and that Proposition 35 does
not compel a ruling to the contrary.
Defendant next contends the human trafficking statute is void for vagueness and
duplicates conduct contained in the pandering statute (Pen. Code, § 266i, subds. (a)(6)
and (b)(2)),1 which provides for lesser penalties. He claims these duplicative provisions
allow for discriminatory enforcement. He adds that Evidence Code section 1161,
subdivision (b), which excludes evidence of prior prostitution activity by victims of
1 Further undesignated statutory references are to the Penal Code.
2
trafficking, violates various constitutional principles. We shall reject these contentions of
error as well, and affirm the judgment.2
FACTUAL AND PROCEDURAL BACKGROUND
The following facts, viewed in the light most favorable to the verdicts (see
People v. Abilez (2007) 41 Cal.4th 472, 504), showed that defendant, using D. as his key
assistant, induced B. to prostitute herself in Stockton.
Trial Evidence
Stockton Police Officer Wesley Grinder testified as an expert on prostitution. He
explained that a “blade” is an area known for heavy streetwalking, and there are blades in
Stockton. In addition to advertising by wearing skimpy clothing and waving at passing
cars, prostitutes use many Internet sites, on some of which they post pictures of
themselves. Often a prostitute is not allowed by her pimp to use phones; those are
controlled either by the pimp himself, or by a so-called “bottom bitch,” who stays near
the working prostitute. These “bottom bitches” act as a pimp‟s right hand by screening
clients. They are loyal, and help insulate the pimp from liability. Isolating prostitutes
from the outside world and any support system they may have is a common way to
facilitate their compliance.
On the late afternoon of May 25, 2014, Stockton Police Officer Terrance
Washington was sent to look into a reported kidnapping, and went to a gas station near
the Motel 6 on Plymouth Road. He found a teenage girl (B.) sitting on the ground amidst
suitcases, dressed in “short shorts and a low cut halter top,” distraught and “crying
hysterically.” She said she was afraid for her life, wanted to get away from “Chester,”
and wanted the police to call her father. Washington and other officers waited for
2 Alternatively, defendant claims his trial counsel was ineffective for failing to raise
these last two issues. Because we address the merits of all the issues raised, we do not
address defendant‟s claims of ineffectiveness of trial counsel.
3
“Chester” and arrested defendant when he soon drove by in a car with three female
passengers. When stopped and asked his name, defendant said it was “Bakori Newton”
and he claimed to be 17 years old. After detaining defendant, Washington spoke to D.,
one of the females in the car. She was wearing cut-off shorts. Condoms and many credit
cards were found in the glove compartment. A book entitled “The 40 Laws of the Game:
Pimpology” was found in the trunk, and some of the pages were highlighted. Nearby,
Officer Robert Dominguez found a telephone by the car, which rang when Washington
dialed the number B. had for defendant. Later, defendant admitted it was his telephone.
B. reported that defendant forced her to create an account on an Internet site; the
account showed her in an advertisement for an “escort,” gave her location, and had
photographs that displayed her breasts and genitalia. Washington researched defendant‟s
telephone number on the Internet and discovered the number was associated with several
different websites bearing similar ads. A photograph on one site resembled another one
of the females who had been found in defendant‟s car when it was stopped. B. was 17,
and D. was 14. The other girls in the car with defendant were 16 and 14.
Detective Michael George spoke with D. on May 27, 2014, at juvenile hall. On
her telephone he found Internet escort advertisements associated with the numbers of
D.‟s and defendant‟s telephones. He obtained a warrant to search defendant‟s telephone.
The search revealed photographs--including of B.--depicting prostitution-related
activities, such as young females in suggestive poses with telephone numbers to call to
arrange meetings.
B. testified she was 17 on May 23, 2014, and had met defendant that March in
Antioch. They texted each other and visited once at her cousin‟s apartment. Defendant
told her he was a pimp and told her “how much money you could make, and stuff like
that. Kind of persuasive.” He assured her he could protect her, but she just considered
him a casual friend.
4
Trial exhibit 56 consisted of 79 pages of mostly redacted texts taken from
defendant‟s telephone--with the subscriber name of “Bakori Brown”--beginning before
and lasting until the end of the charged offenses. At times B. was flirtatious with
defendant in these texts, and when he asked for naked pictures of her, she complied. On
May 12, 2014, he proposed taking her to Stockton over a weekend, to work as a “ho.” In
further texts, she said she was scared, but he told her it was easy and he would protect her
and teach her the trade. Later texts, sent while the two were in Stockton, discussed prices
for sexual acts, and the need for B. to keep in touch with defendant when she was on a
“date.”
On May 23, 2014 (Friday), B. texted defendant, who knew she was only 17,
because she had had an argument with her mother and wanted to talk to him. She left her
mother‟s home to go with defendant, who drove her to Stockton. D. was in the car. The
three eventually went to a motel. There, while the girls were alone, D. told B. they would
walk “the blade” and she would take pictures of B. to post on an Internet escort site.3 B.
protested that that was not why she had come with defendant to Stockton, but then
defendant came in and said it was a “ „money weekend‟ ” and “ya‟ll going to do this,
ya‟ll going to do that.” D. took “exotic pictures” of B. and they were posted on “a call
girl website,” along with her telephone number. Because nobody called, they got dressed
and went out to the streets. Defendant drove both girls to a “ho stroll” at about 9:00 p.m.,
and during this time D. told B. “what type of person” defendant was, and B. recorded D.
on her telephone describing defendant.
Soon a man picked B. up, they had sex in a house, and he paid her $60, the amount
defendant had told her to ask for. She gave that money to defendant. She was terrified
and felt she had no choice but to comply. After she and D. returned to the motel,
3 A defense hearsay objection was overruled.
5
defendant accused B. of having had a customer she had not told him about. He told her
he should kill her, and that he needed to know everything she was doing at all times. B.
and D. strolled again for about an hour, then defendant took them back to a motel.
Defendant saw the recording on B.‟s telephone, in which D. had described (in apparently
negative terms) defendant‟s “demeanor and what he‟s about” to B. He and D. argued,
and he beat and choked her in front of B. He made D. strip naked and told her to leave
that way, claiming everything she had belonged to him. D. left, but returned shortly and
stayed.
The next morning (Saturday) the girls got dressed to return to the “blade.” B. had
another customer, and when it was over again gave defendant the money. That night,
while D. was with a customer, defendant forced B. to fellate defendant. He told her that
if she told anyone he would beat her worse than he had beaten D. On Sunday morning
defendant again asked B. to fellate him, which she did.
When B. asked to go home, defendant‟s reply was “ „Some money need[s] to be
made before anybody can go anywhere.‟ ” Another time he said he would “beat [her]
ass,” and “don‟t play with me.” Two other girls were with them and were depicted in
photographs introduced at trial; an officer testified these were the two other girls found in
defendant‟s car.
An incident where a customer offered $200 to let him rape B. caused her particular
distress about her situation, although the rape did not occur. Eventually B. called 911.
According to the 911 transcript in the record, the accuracy of which the parties do not
dispute, B. reported that she had been kidnapped, but then hung up. The dispatcher
called back and then B. spoke as if she were speaking to a customer, asking to meet in a
motel, discussing the price and details. The 911 dispatcher understood B. could not
speak freely and arranged for her to go to a particular motel. There were further 911
calls, and B. was able to tell the dispatcher the man was named Chester, he “worked me
as a prostitute” and held her against her will, and he had other prostitutes in the car. On
6
cross-examination, B. admitted she had worked as a prostitute before she had ever met
defendant. But she had not intended to work as defendant‟s prostitute that weekend, with
him as her pimp, and give up control of her “choices.”
A jailhouse informant, Tyquan Jeter, had been convicted of (misdemeanor) false
imprisonment and domestic violence in 2013, and was facing jail time because he did not
complete certain classes. He came forward with alleged statements defendant made
while they were incarcerated together, and was promised that if he testified truthfully and
completed the required classes, he would not have to serve additional time. He also had a
2007 theft conviction. Defendant had been his cellmate for a week or two and said he
was “pimping, he had four underaged girls, three overaged girls. He had made a lot of
money. He got caught because the girl called and said . . . something like she was
kidnapped or whatnot.” Defendant had been around pimping all his life, his father having
been a pimp and his mother having been a prostitute. He had a tattoo of the word
“ „pimp‟ ” on his hand, but tried to hide it. He told Jeter a girl who was going to testify
was named B., and asked Jeter to contact her “and just tell her not to show up.”
Defendant told Jeter one of his girls “wasn‟t picking up the phone, and he said something
like „Bitch, don‟t ever do that again. Bitch, I‟ll kill you if you don‟t answer your
phone.‟ ” He bragged about making money with seven girls, and said he would “post the
[girl‟s] ass” on certain websites. He did not care that some of his girls were underage.
An employee from Metro PCS testified as an expert about cellular tower
information. He identified the subscriber of defendant‟s telephone as Bakori Brown, and
authenticated trial exhibit 56, containing the text messages from that telephone. A crime
analyst testified he had examined three telephones relevant to this case (B.‟s, D.‟s, and
defendant‟s) and had prepared trial exhibit 128, a PowerPoint reflecting the information
from the telephones. This included photographs and videos, including of B. He found
some of the racy or semi-naked photographs from the Internet escort sites on defendant‟s
telephone, and many texts discussing prostitution activities.
7
D. did not testify. However, her juvenile records showed she had had prior police
contacts for loitering for purposes of prostitution in Oakland.
Defendant testified he first met D. on a website, and met her in person in May
2014. He first met B. in Antioch. On May 23, 2014, he picked D. up “from the ho stroll”
in Oakland and then drove to Antioch to pick up B. Eventually they went to a motel in
Stockton. He had intended that D. would teach B. how to steal (from men for defendant),
but B. was already a prostitute and did not want to steal. Later, B. went out “hoing, I
guess.” She asked to be taken to the “blade” and “[D.] was watching her back.” On
Sunday, B. asked him to take her home and he agreed, but he picked up two other girls on
the way. He and B. had an argument because defendant had things to do and she could
not pay for the gas needed to drive her to Antioch. He eventually dropped her off with all
of her things, and was stopped by the police. He never had sex with B., although he
admitted that--at his request for “sexy” pictures--she sent him pictures of her vagina,
buttocks and breasts, and that on May 24, she texted him regarding fellatio. According to
defendant, Tyquan Jeter was lying, and had access to defendant‟s paperwork, from which
he could have learned about his case. Defendant took no money from B. Both girls were
prostitutes before he met them, and he was only trying to help them.
Defendant admitted a juvenile adjudication for felony assault with a firearm. He
had lied about his name to the officer when he was stopped because he had an
outstanding warrant and did not have his driver‟s license. He admitted he had “ „pimp‟ ”
tattooed on his hand, as well as “ „pay me,‟ ” but denied he was a pimp. He claimed he
was performing rap music on videos in which he used the term “pimp.” In some texts
from his telephone he said he was a pimp, or the exchanges clearly referenced specific
sex transactions, but he claimed some were not from him, and others just reflected his
“image.” He admitted that Internet escort photographs of B. were on his telephone, and
his telephone number was on at least one of the websites. He claimed B. “put herself on
the blade.”
8
Many texts from defendant‟s phone referenced prostitution and included explicit
photographs for websites and reference to specific sexual acts for specific dollar amounts.
D. referred to defendant as “Daddy” in texts. Defendant denied he and D. planned to use
B. as a prostitute, but claimed they were going to “train her to steal.” He insisted he was
not a pimp, testifying: “I can‟t stop nobody from doing nothing. Everybody [makes
their] own decisions.”
Closing Arguments and Verdicts
The prosecutor emphasized the evidence that defendant acted and spoke like a
pimp, and even tattooed his hand to declare himself as such, and therefore he was a pimp.
Defendant also lied about his name when stopped by the police, and tossed his telephone
out of the car, evidencing consciousness of guilt. The prosecutor pointed to defendant‟s
effort, via his cellmate Tyquan Jeter, to influence B. not to testify, and to a text directing
D. to delete her texts, both evidencing defendant‟s consciousness of guilt. He
emphasized that consent did not matter for a charge of human trafficking; even if the girls
were willing prostitutes, and even if defendant thought they were 18, he was still guilty of
those charges. Part of the trafficking law incorporated the crime of pandering, which was
persuading the girls, successfully or not, to act as prostitutes. An uncharged criminal
conspiracy existed, because the evidence showed defendant and D. had agreed to traffic
B. This was significant because each member of a conspiracy was responsible for the
acts or statements of other members made in aid of the conspiracy. Thus, D.‟s texts that
tended to incriminate defendant could be used to do so if the prosecution showed by a
preponderance of the evidence they were in aid of a conspiracy.
Defense counsel emphasized the presumption of innocence beyond a reasonable
doubt, and the rule that if two reasonable interpretations of circumstantial evidence exist,
the jury must interpret that evidence in favor of the defendant. She emphasized
discrepancies or exaggerations by B., and argued B. became angry at defendant and made
9
up her story. She also emphasized that D. did not testify and argued defendant‟s
testimony that he was trying to wean the girls from prostitution to robbery was plausible.
The jury deadlocked on two charges of oral copulation with a minor (§ 288a, subd.
(b)(1), both alleging B. as the victim) but found defendant guilty of both charged counts
of human trafficking--one count for trafficking B. and one count for trafficking D.
(§ 236.1, subd. (c)). Defendant admitted a strike (assault with a firearm). (§§ 245, subd.
(a)(2); 667, subd. (d), 1170.12, subds. (b)-(i).) The trial court sentenced him to 21 years
four months in state prison; defendant timely appealed.
DISCUSSION
I
D.’s Texts and Other Statements
In his opening brief, defendant claims: “Extensive evidence of texts between
[defendant] and [D.] were admitted in which [defendant] appears to be making dates and
setting fees for [D.] in May of 2014.” However, defendant fails to describe the details of
the challenged texts, citing to exhibits 56 and 128 in their entirety and three pages of the
expert‟s trial testimony. He adds that B. was permitted to testify about “[D.]‟s statements
that they were going to take photographs, post them to [the Internet], and walk „the
blade,‟ ” citing to testimony about the conversation. He contends such evidence should
not have been admissible as to count two, the trafficking charge naming D. as the alleged
victim. He does not challenge the evidence as admitted to support count one, the charge
naming B. as the alleged victim.
A. Background
The People moved in limine to introduce texts from defendant to both victims to
show he induced or persuaded them to engage in commercial sex acts. The defense
replied that text messages should be redacted “to only relevant text messages.” When
exhibit 56--containing texts from defendant‟s telephone--was discussed, defense counsel
objected that some did not have anything to do “with the two girls [who] are involved in
10
this.” On some individual pages, it was not clear to whom a particular text (such as
“ready to get some money?”) was sent or to whom it referred; therefore the parties
redacted exhibit 56 extensively to address defense counsel‟s objections. The in limine
motion did not address D.‟s oral statements, as opposed to her text conversations.
The parties expected D. would testify, and after B. testified, the prosecutor told the
court he anticipated D. would testify the next day. But the next morning, the prosecutor
advised that he had learned D. was afraid and did not want to testify. The trial court
mentioned that whether or not D. testified, she was a coconspirator and therefore jury
instructions on that issue would be required. Defense counsel did not then object.
During the instructional conference, when the conspiracy instructions were
discussed, defense counsel simply stated “if she doesn‟t show up tomorrow, she‟s
probably not coming.” But later, defense counsel objected that because D. was a minor,
she could not be a coconspirator. The trial court replied that D. was not a coconspirator
as to the count alleging she was a victim, but only as to the counts alleging B. was a
victim. Defense counsel argued the human trafficking laws made D. a victim for “any
crime” related to trafficking. The court stated that where B. was the victim, the evidence
showed D. was, in the trial court‟s words, “the bottom bitch.” Defense counsel argued
texts from D.‟s telephone were inadmissible hearsay and violated defendant‟s right of
confrontation. Defense counsel did not explicitly address D.‟s oral statements.
The trial court ultimately ruled D.‟s statements would be admissible as to both
trafficking counts, and the jury was so instructed.4 No objection was interposed to this
change of the scope of the tentative ruling.
4 At first the relevant part of the instruction referenced “text statements of alleged co-
conspirator [D.] Doe,” but it later referred to “text[s] or statements in order to further the
goal of the conspiracy.” As indicated earlier, the thrust of the defense objection was to
the extensive texts between D. and defendant, although the jury also heard B.‟s testimony
11
B. Contentions
Defendant contends (1) admission of D.‟s statements violated the confrontation
clause, and (2) D. could not be a coconspirator (as to count two only, which referenced
her as the victim), because of Proposition 35.
Defendant‟s confrontation clause claim fails because defendant‟s briefing does not
explain how any of D.‟s statements were testimonial. (See People v. Clark (2016) 63
Cal.4th 522, 563-564 & fn. 37; People v. Sanchez (2016) 63 Cal.4th 665, 689
[“Testimonial statements are those made primarily to memorialize facts relating to past
criminal activity, which could be used like trial testimony. Nontestimonial statements are
those whose primary purpose is to deal with an ongoing emergency or some other
purpose unrelated to preserving facts for later use at trial”]; see also Crawford v.
Washington (2004) 541 U.S. 36, 56 [158 L.Ed.2d 177, 195-196] [“Most of the hearsay
exceptions covered statements that by their nature were not testimonial--for example,
business records or statements in furtherance of a conspiracy”], italics added.)
Defendant‟s Proposition 35 claim is predicated on Evidence Code section 1161,
subdivision (a). This statute as enacted by section 4 of Proposition 35 provided:
“Evidence that a victim of human trafficking, as defined in Section 236.1 of the Penal
Code, has engaged in any commercial sexual act as a result of being a victim of human
trafficking is inadmissible to prove the victim‟s criminal liability for any conduct related
to that activity.”5 One case has held this section applies only where the child prostitute
engaged in a sex transaction “as a result” of being a human trafficking victim. (In re
Aarica S. (2014) 223 Cal.App.4th 1480, 1487-1488 [upholding delinquency adjudication;
about alleged oral communications between her and D., or which she overheard between
D. and defendant.
5 A minor amendment effective January 1, 2014 changed “for any conduct related to that
activity” to “for the commercial sexual act.” (Stats 2013, ch. 126, § 1.)
12
minor was “ „an independent contractor‟ ”].) Another has assigned the minor the burden
to show that she was a victim in order to invoke this statute. (In re M.D., supra, 231
Cal.App.4th at pp. 999-1001.) A third case has held that Evidence Code section 1161,
subdivision (a) applies to protect minors in delinquency proceedings. (In re N.C. (2016)
4 Cal.App.5th 1235, 1243-1245.) Defendant‟s claim is that, because D. enjoyed some
kind of protection from prosecution to the extent she was a victim--the precise scope of
which we need not decide--she could not be defendant‟s coconspirator as to count two.
Defendant‟s claim cannot be squared with the coconspirator exception to the
hearsay rule. Evidence Code section 1223 permits the introduction of evidence of
statements “made by the declarant while participating in a conspiracy to commit a crime
or civil wrong and in furtherance of the objective of that conspiracy” if “made prior to or
during the time that the party was participating in that conspiracy.”
As the Attorney General points out, defendant does not contend insufficient
evidence supported a finding that D. met the general statutory definition of a
coconspirator, or that the evidence did not support any of the alleged overt acts. Instead,
his claim is that the evidentiary shield provided to her by Proposition 35 removes her
from consideration as a coconspirator, at least as to count two, in which she is the named
victim.
Although this claim might have some superficial appeal, under settled law,
generally it does not matter whether or not an uncharged coconspirator is prosecutable, or
instead enjoys immunity, in determining the application of the coconspirator exception.6
6 Further, as the trial court pointed out, and the Attorney General notes, the bulk of the
texted statements admitted at trial would be admissible against defendant either as party
admissions (Evid. Code, § 1220), because he wrote them, or adoptive admissions (Evid.
Code, § 1221), because he responded to the texted statements as though they were true.
Defendant does not fully address this point, but merely faults the Attorney General for
being vague about the statements in question.
13
“By definition, a conspiracy is an agreement, and requires the guilty
concurrence of at least two parties. [Citation.] Therefore, a defendant in a
prosecution for conspiracy cannot be convicted where all of his or her alleged
coconspirators have been acquitted. [Citation.][7] However, impossibility of
conviction is not the same as innocence, and if the guilt of two is established, one
may be convicted although the other may be protected by immunity or some other
procedural bar. (Perkins & Boyce, Criminal Law (3d ed. 1982) [Conspiracy,] pp.
693-694.) For example, the acts of a coconspirator who has been granted
prosecutorial immunity may be considered in establishing the culpability of other
coconspirators. [Citations.] „Where . . . the discharge of an alleged coconspirator
is not inconsistent with his guilt, but simply bars a subsequent prosecution of him,
it does not invalidate the conviction of his coconspirators.‟ [Citation.] Similarly,
a defendant may be charged with conspiracy to deliver documents to a foreign
government even though his coconspirators are not amenable to prosecution
because of diplomatic immunity.” (People v. Eberhardt (1985) 169 Cal.App.3d
292, 299-300, italics added; see People v. Alleyne (2000) 82 Cal.App.4th 1256,
1261, 1262 [approving Eberhardt; the fact a coconspirator died before any overt
act occurred did not alter the defendant‟s liability for the unlawful agreement:
“Allen entered into an agreement with Alleyne to kill Wengert. Allen‟s death
terminated his life but not the agreement. All that was left to make the agreement
punishable as a conspiracy was Alleyne‟s perpetration of an overt act in
furtherance of the agreement”]; People v. Williams (1979) 97 Cal.App.3d 382, 395
[“the grant of immunity to Ms. Hoover is not inconsistent with her culpability as a
coconspirator. Her acts in furtherance of the conspiracy may therefore be
considered in establishing the culpability of her fellow coconspirators”].)
Application of this rule would allow D.‟s statements, whether oral or texted, to be
admitted so long as they were made in furtherance of the conspiracy, and defendant does
not contend any of the statements introduced at trial did not further the conspiracy.
Although not clearly briefed by defendant, we acknowledge that there is an
exception to the above general rule where there is found “in the law declaring [an alleged
coconspirator] incapable [of prosecution for the target offense], a policy precluding
liability not only for the target offense but also for a conspiracy to commit it.” (4
Wharton‟s Crim. Law (15th ed. 1996) Conspiracy, § 683, p. 549, italics added.) The
7 This rule does not apply in California. (See People v. Palmer (2001) 24 Cal.4th 856,
861-867 [rejecting the so-called “rule of consistency” in conspiracy cases].)
14
seminal case cited by Wharton involved the conviction of a man and a willing woman for
conspiring to violate the Mann Act (popularly known as the federal “White Slavery”
statute), which generally provided that “[t]ransportation of a woman or girl whether with
or without her consent, or causing or aiding it, or furthering it in any of the specified
ways, are the acts punished, when done with a purpose which is immoral within the
meaning of the law.” (Gebardi v. United States (1932) 287 U.S. 112, 118 [77 L.Ed. 206,
209].) After acknowledging the coconspirator rule, the high court held:
“[W]e perceive in the failure of the Mann Act to condemn the woman‟s
participation in those transportations which are effected with her mere consent,
evidence of an affirmative legislative policy to leave her acquiescence unpunished.
We think it a necessary implication of that policy that when the Mann Act and the
conspiracy statute came to be construed together, as they necessarily would be, the
same participation which the former contemplates as an inseparable incident of all
cases in which the woman is a voluntary agent at all, but does not punish, was not
automatically to be made punishable under the latter. It would contravene that
policy to hold that the very passage of the Mann Act effected a withdrawal by the
conspiracy statute of that immunity which the Mann Act itself confers.”
(Gebardi v. United States, supra, 287 U.S. at p. 123 [77 L.Ed. at pp. 211-212],
italics added; see People v. Buffum (1953) 40 Cal.2d 709, 722 [abortion-seekers
not deemed accomplices under § 1111, whose testimony required corroboration in
prosecution for conspiracy to commit abortions, because the conspiracy rule “does
not apply where the statutes defining the substantive offense disclose an
affirmative legislative policy that the conduct of one of the parties involved shall
be unpunished”; however, they were subject to the corroboration requirement
applicable to abortion-seekers provided by § 1108], overruled on another point by
People v. Morante (1999) 20 Cal.4th 403; see also Hutchins v. Municipal Court
(1976) 61 Cal.App.3d 77, 83-84.)
This exception does not help defendant. D. is not appealing after a conviction (or
delinquency adjudication) for conspiracy to traffic herself. Evidence Code section 1161,
subdivision (a) provides an evidentiary exclusion that could shield D. from prosecution.
It provides that certain evidence “is inadmissible to prove the victim’s criminal
liability . . . .” (Italics added.) Defendant does not point to any provision in Proposition
35 that operates to limit proof of the trafficker’s criminal liability, whether in the form of
15
statements admissible via the coconspirator hearsay exception or otherwise. We see
nothing in the text or spirit of Proposition 35 to support such a result. Instead, it contains
an explicit legislative purpose to “ „ensure just and effective punishment of people who
promote or engage in the crime of human trafficking.‟ ” (In re M.D., supra,
231 Cal.App.4th at p. 999; quoting from Prop. 35, § 3.)
We find further guidance for our conclusion in People v. Bogan (2007)
152 Cal.App.4th 1070, cited by defendant. There, we found that a legislative purpose to
treat prostitutes as misdemeanants meant they could not be charged as coconspirators
with their pimps, because that would elevate their conduct to felony status, frustrating the
legislative purpose of the statutory scheme. (Id. at p. 1075; see People v. Pangelina
(1981) 117 Cal.App.3d 414, 422; Williams v. Superior Court (1973) 30 Cal.App.3d 8, 12-
14.) However, we also found prostitutes could be treated as uncharged coconspirators, as
D. was in this case. (Bogan, at p. 1075.) In part we relied on an earlier case that “upheld
the admission of statements made by the defendant‟s suspected prostitutes under the
coconspirator exception to the hearsay rule.” (Id. at p. 1076; discussing People v.
Ambrose (1986) 183 Cal.App.3d 136, 139 [“A prostitute, while exploited, is not
criminally blameless”].)8
Thus, Bogan bolsters our view that even though Proposition 35 strengthened
protections for human trafficking victims by limiting the evidence that can be introduced
against them, it does not preclude treating them as uncharged coconspirators for purposes
of the coconspirator exception to the hearsay rule. Indeed, as stated ante, that result
8 We note that in Bogan, the defendant conceded a prostitute could be liable as a
coconspirator with her pimp if she “assists in the exploitation of another person.”
(People v. Bogan, supra, 152 Cal.App.4th at pp. 1074, 1075.) That was the theory in this
case as to count one, naming B. as the victim.
16
advances the purpose of Proposition 35 by facilitating prosecution of traffickers, rather
than giving them the benefit of an evidentiary exclusion designed for their minor victims.
Thus, D. was properly treated as an uncharged coconspirator for purposes of the
coconspirator exception to the hearsay rule, and evidence of her statements was
admissible to show defendant‟s liability as to both human trafficking counts.
II
Overlapping Statutes
Defendant makes two interwoven claims hinging on the fact that, as the case was
prosecuted against him in particular, the human trafficking statute overlapped with
provisions of the pandering statute. We reject these connected claims.
Defendant contends section 236.1 is void for vagueness because, as applied to him
in this case, it incorporated the definition of pandering as provided by section 266i. The
jury was instructed that pandering was the underlying sex transaction for which
defendant‟s liability under section 236.1--if any--would attach. He contends he was not
given fair notice of what punishment he might face because pandering provides a lesser
penalty than trafficking. He separately contends this overlap allows for selective
enforcement of penal laws, and speculates about implicit bias and racial disparities in
prosecutorial charging decisions.
We reject each of defendant‟s contentions, which we discuss together.
We agree with defendant that a penal statute must be drafted with sufficient clarity
to give fair notice of what conduct is proscribed (or mandated). (See, e.g., People v.
Heitzman (1994) 9 Cal.4th 189, 199; People v. Vincelli (2005) 132 Cal.App.4th 646, 650-
651.) The high court explained this point in a case invalidating a California statute
(§ 647, former subd. (e)) that required a detained person to provide credible identification
to peace officers upon penalty of arrest for disorderly conduct:
17
“[T]he void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement. [Citations.] Although the doctrine focuses both on
actual notice to citizens and arbitrary enforcement, we have recognized recently
that the more important aspect of the vagueness doctrine „is not actual notice, but
the other principal element of the doctrine--the requirement that a legislature
establish minimal guidelines to govern law enforcement.‟ [Citation.] Where the
legislature fails to provide such minimal guidelines, a criminal statute may permit
„a standardless sweep [that] allows policemen, prosecutors, and juries to pursue
their personal predilections.‟ ” (Kolender v. Lawson (1983) 461 U.S. 352, 357-
358 [75 L.Ed.2d 903, 909].)
The challenged statute defined “disorderly conduct” as applicable to anyone
“[w]ho loiters or wanders upon the streets or from place to place without apparent reason
or business and who refuses to identify himself and to account for his presence when
requested by any peace officer so to do, if the surrounding circumstances are such as to
indicate to a reasonable man that the public safety demands such identification.” (Pen.
Code, § 647, former subd. (e), added by Stats. 1961, ch. 560, § 2, p. 1672; see People v.
Solomon (1973) 33 Cal.App.3d 429, 437-438 [construing this statute to require
production of “credible and reliable” identification].) It was held to be infirm in part
because it “vests virtually complete discretion in the hands of the police to determine
whether the suspect has satisfied the statute and must be permitted to go on his way in the
absence of probable cause to arrest. An individual, whom police may think is suspicious
but do not have probable cause to believe has committed a crime, is entitled to continue
to walk the public streets „only at the whim of any police officer‟ who happens to stop
that individual under § 647(e).” (Kolender v. Lawson, supra, 461 U.S. at p. 358 [75
L.Ed.2d at p. 909].)
Defendant contends section 236.1, subdivision (c) is vague under Kolender and
similar cases because it “fails to give the ordinary person fair notice of the conduct that
constitutes „human trafficking‟ as opposed to „pandering.‟ ” We agree with defendant‟s
premise that as charged in this case defendant might have been subject to either of two
18
statutory schemes carrying different penalties, but we disagree with his conclusion that
this renders the statute under which he stands convicted infirm.9
Section 236.1, subdivision (c) provides in part: “A person who causes, induces, or
persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time
of commission of the offense to engage in a commercial sex act, with the intent to effect
or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4,
311.5, 311.6, or 518 is guilty of human trafficking.” (Italics added.) A commercial sex
act is “sexual conduct on account of which anything of value is given or received by a
person.” (§ 236.1, subd. (h)(2).) Trafficking a minor triggers a punishment triad of five,
eight, or twelve years and a fine up to $500,000. (Id., subd. (c)(1).) If force or fear is
used, the punishment is 15 years to life and a fine of up to $500,000. (Id., subd. (c)(2).)
Pandering is punished less harshly. Section 266i, subdivision (a)(6) provides that
any person who does the following is guilty of pandering: “Receives or gives, or agrees
to receive or give, any money or thing of value for procuring, or attempting to procure,
another person for the purpose of prostitution, or to come into this state or leave this state
for the purpose of prostitution.” Pandering an adult or a minor 16 years or older triggers
a punishment triad of three, four, or six years. (Id., subds. (a), (b)(1).) Pandering a
younger minor triggers a punishment triad of three, six, or eight years. (Id., subd. (b)(2).)
A panderer is subject to fine of up to $5,000. (§ 266k, subd. (a).)
9 The Attorney General weakly asserts the two charges do not overlap, because section
266.1, subdivision (a)(6) requires the giving of a thing of value for prostitution, “while
section 236.1, subdivision (c), does not.” But as for the latter offense, the jury was
instructed it had to find defendant committed the former offense, and that a commercial
sex act for purposes of section 236.1 means “sexual conduct on account of which
anything of value is given or received by any person.” (§ 236.1, subd. (h)(2).) And the
prosecutor argued to the jury that pandering was a component of the trafficking charge.
Accordingly, for purposes of this appeal, we will accept defendant‟s view that the
charges as prosecuted in this case overlapped.
19
Because defendant‟s predicate offense under section 236.1, subdivision (c) was
pandering under section 266i, defendant views it as unfair that he is subject to the greater
punishment triad and possible fine provided by the former statute. He suggests this
means a person of ordinary understanding is not given fair notice of which statute is
violated when pandering a minor. Further, he contends this circumstance--that he might
have been punished as either a panderer or a trafficker--opens the door to invidious
prosecutorial charging determinations.
Although defendant tries to distinguish United States v. Batchelder (1979) 442
U.S. 114 [60 L.Ed.2d 755] (Batchelder), we agree with the Attorney General that it
forecloses his claim.
At issue in Batchelder were “two overlapping provisions of the Omnibus Crime
Control and Safe Streets Act of 1968 (Omnibus Act). Both prohibit convicted felons
from receiving firearms, but each authorizes different maximum penalties. We must
determine whether a defendant convicted of the offense carrying the greater penalty may
be sentenced only under the more lenient provision when his conduct violates both
statutes.” (Batchelder, supra, 442 U.S. at pp. 115-116 [60 L.Ed.2d at p. 759], fn.
omitted.) A lower court had concluded the lesser punishment should be applied as a
matter of Congressional intent, including the need to avoid the constitutional doubt that
might ensue if prosecutors had unfettered discretion to charge defendants under either
statute. (Id. at pp. 116-117 [60 L.Ed.2d at pp. 759-760].) The high court unanimously
disagreed, in part holding:
“It is a fundamental tenet of due process that „[no] one may be required at
peril of life, liberty or property to speculate as to the meaning of penal statutes.‟
[Citation.] A criminal statute is therefore invalid if it „fails to give a person of
ordinary intelligence fair notice that his contemplated conduct is forbidden.‟
[Citations.] So too, vague sentencing provisions may pose constitutional questions
if they do not state with sufficient clarity the consequences of violating a given
criminal statute. [Citations.]
20
“The provisions in issue here, however, unambiguously specify the activity
proscribed and the penalties available upon conviction. [Citation.] That this
particular conduct may violate [two statutes] does not detract from the notice
afforded by each. Although the statutes create uncertainty as to which crime may
be charged and therefore what penalties may be imposed, they do so to no greater
extent than would a single statute authorizing various alternative punishments. So
long as overlapping criminal provisions clearly define the conduct prohibited and
the punishment authorized, the notice requirements of the Due Process Clause are
satisfied.” (Batchelder, supra, 442 U.S. at p. 123 [60 L.Ed.2d at p. 764].)
That is exactly the situation in this case. Two statutes each clearly advised
defendant of conduct that was criminal, and of the possible penalties each provided.
Regarding possible selective or discriminatory enforcement, the high court said:
“This Court has long recognized that when an act violates more than one
criminal statute, the Government may prosecute under either so long as it does not
discriminate against any class of defendants. [Citations.] Whether to prosecute
and what charge to file or bring before a grand jury are decisions that generally
rest in the prosecutor‟s discretion. [Citations.]
“The Court of Appeals acknowledged this „settled rule‟ allowing
prosecutorial choice. [Citation.] Nevertheless . . . the court distinguished
overlapping statutes with identical standards of proof from provisions that vary in
some particular. [Citation.] In the court‟s view, when two statutes prohibit
„exactly the same conduct,‟ the prosecutor‟s „selection of which of two penalties
to apply‟ would be „unfettered.‟ [Citations.] Because such prosecutorial
discretion could produce „unequal justice,‟ the court expressed doubt that this form
of legislative redundancy was constitutional. [Citation.] We find this analysis
factually and legally unsound.
“Contrary to the Court of Appeals‟ assertions, a prosecutor‟s discretion to
choose between [the two statutes] is not „unfettered.‟ Selectivity in the
enforcement of criminal laws is, of course, subject to constitutional constraints.
And a decision to proceed under [the statute with the more severe punishment]
does not empower the Government to predetermine ultimate criminal sanctions.
Rather, it merely enables the sentencing judge to impose a longer prison sentence
than [the other statute] would permit and precludes him from imposing the greater
fine authorized by [the other statute]. More importantly, there is no appreciable
difference between the discretion a prosecutor exercises when deciding whether to
charge under one of two statutes with different elements and the discretion he
exercises when choosing one of two statutes with identical elements. . . . The
prosecutor may be influenced by the penalties available upon conviction, but this
21
fact, standing alone, does not give rise to a violation of the Equal Protection or
Due Process Clause. [Citations.] Just as a defendant has no constitutional right to
elect which of two applicable federal statutes shall be the basis of his indictment
and prosecution, neither is he entitled to choose the penalty scheme under which
he will be sentenced.” (Batchelder, supra, 442 U.S. at pp. 123-125 [60 L.Ed.2d at
pp. 764-766], italics added, fn. omitted.)
Our Supreme Court has followed Batchelder and permitted prosecutors to make
charging decisions that implicate different penalty provisions, so long as those decisions
are not made for invidious reasons (e.g., race, gender, etc.). (See People v. Wilkinson
(2004) 33 Cal.4th 821, 834-836 [rejecting equal protection claim]; see also People v.
Superior Court (Caswell) (1988) 46 Cal.3d 381, 395 [“It is axiomatic the Legislature may
criminalize the same conduct in different ways”].)10
Defendant cites Johnson v. United States (2015) 576 U.S. __ [192 L.Ed.2d 569], a
case holding a particular sentencing statute was, by its terms, vague; however, that case is
distinguishable. Johnson involved a “residual” clause defining a violent felony for
penalty purposes as one presenting “ „a serious potential risk of physical injury to
another,‟ ” and invalidated this clause because “the indeterminacy of the wide-ranging
inquiry . . . both denies fair notice to defendants and invites arbitrary enforcement by
judges.” (Id. at pp. ___, ___ [192 L.Ed.2d at pp. 576, 578].) That is not the situation
here. Nonetheless, relying on Johnson, defendant claims that Batchelder only applies to
10 A footnote in Batchelder emphasized: “The Equal Protection Clause prohibits
selective enforcement „based upon an unjustifiable standard such as race, religion, or
other arbitrary classification.‟ [Citation.] Respondent does not allege that his
prosecution was motivated by improper considerations.” (Batchelder, supra, 442 U.S. at
p. 125, fn. 9 [60 L.Ed.2d at p. 765, fn. 9].) Similarly, although defendant raises the
specter of discriminatory charging based on race, he did not make any motion or
objection in the trial court urging any such discrimination occurred in this case.
Batchelder and Murgia v. Municipal Court Bakersfield Judicial Dist. (1975) 15 Cal.3d
286 at pages 290-291 teach that a charging decision based on race or other invidiously
selected class violates equal protection. This protection vitiates defendant‟s contention
that overlapping statutes are per se invidious. And nothing in the record on appeal
indicates invidious discrimination occurred in this case.
22
“statutes fixing sentences,” and claims here the problem goes deeper. We disagree. As
we have explained, to the extent defendant‟s conduct could have been charged as either
pandering or human trafficking--the former with less severe penalty provisions than the
latter--defendant has no legitimate complaint, because there is no vagueness about what
the law prohibited under either statute. That different possible criminal labels and
penalties may be attached to defendant‟s acts is unimportant under the reasoning of
Batchelder, where a felon possessing a firearm could have been charged under either of
two statutes. So, too, here: Although defendant might have been both a panderer and a
trafficker, that does not mean the prosecutor was obligated to charge him with the more
lenient of the two offenses, nor that either of the two statutes is vague.
III
Exclusion of Evidence of Past Prostitution
Evidence Code section 1161, subdivision (b) provides: “Evidence of sexual
history or history of any commercial sexual act of a victim of human trafficking, as
defined in Section 236.1 of the Penal Code, is inadmissible to attack the credibility or
impeach the character of the victim in any civil or criminal proceeding.” Defendant
contends Evidence Code section 1161, subdivision (b) is unconstitutional because it
violates the due process clause and his rights to confrontation and to present a defense.
He faults the use of the term “victim,” which in his view is prejudicial because until a
trial occurs “no „victim‟ yet exists.”
To the extent defendant is making a facial challenge, we reject it. In context, the
word “victim” is used in the statute as a synonym for “complainant,” “complaining
witness,” or the older term “prosecutrix.” (See, e.g., People v. Long (2010)
189 Cal.App.4th 826, 840; People v. Branch (2010) 184 Cal.App.4th 516, 521.) It is
unreasonable to suppose the use of the word “victim” in the statute would prejudice a
trial court‟s evidentiary rulings, as any rational trial court would understand the context
of the term, and would not presume the defendant was guilty before trial.
23
To the extent defendant is making an as-applied challenge to this statute--a
challenge the People properly note was not made in the trial court--we reject it as well.
The defense theory was defendant was trying to wean the girls from prostitution by
teaching them to make a living by robbing their customers. In addition to defendant‟s
testimony to the effect both girls were already prostitutes, B. testified she had been a
prostitute before she met defendant, and D.‟s juvenile record was introduced, showing
her history of loitering for purposes of prostitution. Thus, it was not disputed in this case
that both girls were prostitutes before the charged offenses, and defense counsel so
argued to the jury. Therefore, regardless of the trial court‟s in limine ruling excluding
evidence, we fail to see--and defendant fails to explain--how the statute deprived
defendant of any relevant evidence in this case. Defendant does not explain how further
details about the prior prostitution history of either girl would have bolstered his defense,
he merely assumes that the statute impaired his case. In short, defendant does not
establish with reference to the record how he was prejudiced by the statute in this case,
given the state of the evidence admitted.
Further, the jury instructions used “alleged victim,” “alleged victims” and
“complaining witness”; therefore this jury never heard either B. or D. referred to in the
instructions as a “victim” because of the challenged statute.
Thus, we reject defendant‟s challenges to Evidence Code section 1161,
subdivision (b).
24
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Butz, Acting P. J.
/s/
Renner, J.
25