People v. Calhoun

Filed 7/9/19; pub. order 8/2/19 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G055511
v. (Super. Ct. No. 16CF2487)
JOHN WAYNE CALHOUN, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina,
Annie Featherman Fraser and Lynne G. McGinnis, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
INTRODUCTION
John Wayne Calhoun recruited 13-year-old D.T. into prostitution, acted as
her pimp, treated her violently, and engaged in sex acts with her. A jury convicted him of
human trafficking of a minor, pimping a minor under the age of 16, pandering a minor
under the age of 16, lewd and lascivious acts on a child under the age of 14, unlawful
sexual intercourse, and oral copulation of a child under the age of 14. The jury found
true an allegation that Calhoun unlawfully used force, fear, fraud, deceit, coercion,
violence, duress, menace, or threat of unlawful injury in committing the crime of human
trafficking. The trial court sentenced him to 15 years to life in prison with a consecutive
term of six years for one count of committing a lewd and lascivious act on a child under
the age of 14 and a consecutive term of two years for another count of the same offense.
We affirm. As to each of Calhoun’s contentions, we conclude: (1) the trial
court did not err by excluding evidence of D.T.’s acts of prostitution occurring after
Calhoun was placed in custody; (2) the evidence at the preliminary hearing imparted
notice to Calhoun of the factual basis for counts 6 and 7 sufficient to satisfy due process;
(3) venue in Orange County was proper; (4) the trial court did not err by admitting
evidence of certain text messages; (5) expert testimony on statements made by D.T.
during a police interview and on the content of text messages was admissible and any
error was harmless; and (6) the trial court did stay execution of sentence on counts 2, 3,
and 5 pursuant to Penal Code section 654.
FACTS
I.
Calhoun Turns 13-Year-Old D.T. into a Prostitute.
D.T. was born in October 2002. She was placed in foster homes or group
homes beginning in October 2015 because her father physically and emotionally abused
her and had a substance abuse problem. In May 2016, she ran away from a group home
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in Victorville and went with a friend to visit a man named Raymond, who happened to be
Calhoun’s cousin. At Raymond’s house, D.T. met Calhoun. She spent the night at
Raymond’s house, and in the morning Calhoun gave D.T. and her friend a ride to a store.
D.T. and Calhoun waited in the car while her friend went inside the store. Calhoun asked
D.T. how old she was. D.T. told him she was 21 years old.
After returning to Raymond’s house, D.T. and Calhoun talked for several
hours. Calhoun said he was 30 years old. He asked D.T. if she “had ever made money
before.” D.T. did not know what he was talking about and answered no.
Calhoun asked D.T. to go with him to the home of Anntaneisha Louie,
whom Calhoun called “Auntie,” in San Bernardino. D.T. agreed. When they arrived at
Louie’s house, D.T. waited in the car while Calhoun went inside. Calhoun returned with
women’s clothing, which he said were for D.T. While at Louie’s house Calhoun again
asked D.T. if she “had ever made money.” When she asked what he meant, he asked her
if she “had ever slept with people to get money.” She told him no.
After spending several nights at Louie’s house, Calhoun drove D.T. to
Ontario, California, where he picked up two women at an apartment complex. Each
woman carried a bag of clothing. Calhoun drove D.T. and the women to a hotel in Los
Angeles. The next morning, Calhoun told D.T. to get up and take a shower. When she
got out of the shower, some of the clothes the women had brought were laid out on the
bed. Calhoun selected a dress and told D.T. to put it on. D.T. did as she was told.
Calhoun, along with D.T., took the two women back to Ontario. When D.T. asked
Calhoun who the women were, Calhoun said it was none of her business.
Calhoun and D.T. returned to Louie’s house, where Calhoun told D.T. he
wanted to take photographs of her and post them on Backpage, an online website for
advertising prostitution services. D.T. did not want to do it, but she was scared of what
Calhoun might do if she said no, so she agreed. Calhoun took photographs of D.T.
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wearing lingerie and posted the photographs on Backpage. D.T. did not object because
she did not want Calhoun to believe she did not want to do it.
About one hour later, Calhoun received a text message in response to the
Backpage posting. He drove D.T. to a house in San Bernardino to meet the customer.
On the way, Calhoun gave her a price list for various sex acts and went over some of the
rules of the trade. He gave D.T. a condom and told her to always use one. He asked her
to call him “Daddy” and told her to immediately delete any text messages they exchanged
so the messages would not be available if police ever looked through her phone.
When they arrived, Calhoun parked down the street, said he would wait in
the car, and told D.T. to text him when she went inside. D.T. performed the requested
sexual act and was paid $80. She did not want to do it but she did not want Calhoun to be
angry with her. She gave the money to Calhoun.
Calhoun drove D.T. back to Louie’s house, where D.T. was given some
clothes. He then drove her to G Street, known as a “track” or “blade” (an area frequented
by prostitutes) in San Bernardino. Calhoun told her he was “going to put her down on
G Street” where she “was to make money for him.” He gave D.T. three condoms,
ordered her out of the car, and told her to complete three sex acts and give the money to
him. She did as she was told and turned the money over to Calhoun.
Calhoun and D.T. returned to Louie’s house. Calhoun left and instructed
D.T. to stay there until he returned. D.T. did not want to be alone and texted a friend
named Michael. He picked up D.T. and took her to his house. When D.T. arrived at
Louie’s house, Calhoun asked her where she went. She did not want to tell him the truth
because he had ordered her not to talk to any other African-American men (he had told
her that any African-American man who tried to talk to her was likely another pimp).
D.T. told Calhoun that she had gone to visit her aunt. He accused her of lying and
ordered her to go outside. D.T. and Calhoun left and got into his car. He punched her in
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the left eye (giving her a black eye), and told her not to lie to him again. They spent the
night at Louie’s house and had sexual intercourse with each other for the first time.
Calhoun left Louie’s house the next morning and again told D.T. to stay
there until he got back. D.T. was angry with Calhoun for leaving without saying where
he was going. She sent a text message to her friend Markell Stewart and asked him to
come and get her. While D.T. was with Stewart, Calhoun sent her text messages
instructing her to return to Louie’s house. D.T. sent a text message to Calhoun that she
was staying with her aunt but she spent the night with Stewart in Victorville. The next
day, Stewart dropped D.T. and another woman off along G Street. D.T. walked G Street
looking for customers so that she would have money to give Calhoun.
II.
D.T. Is Detained and Interviewed by Police Detectives.
On May 10, 2016, San Bernardino Police Detective Kimberly Hernandez
was driving a marked patrol car westbound on 9th Street approaching G Street in the City
of San Bernardino. She pulled over a vehicle driven by Stewart because it had tinted
windows. Hernandez searched the vehicle and found two cell phones in the center
console. One cell phone was a white HTC brand and the other was a black Vortex brand.
Hernandez also found, in the back seat of the car, women’s clothing of the type typically
worn by prostitutes in the area. Hernandez confiscated the two cell phones.
Once the traffic stop was concluded, Hernandez continued patrolling the
area. While driving southbound on G Street she saw a woman (K.V.), whom she
recognized from an identification card found in Stewart’s vehicle. Hernandez also
noticed that K.V. was walking with a very young girl whom Hernandez had not seen
before. At trial, Hernandez identified the young girl as D.T. Hernandez believed that
K.V. and D.T. were working as prostitutes and made contact with them.
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D.T. identified herself by a false name and told Hernandez she was 20 years
old. Hernandez observed D.T. had a ZTE brand cell phone and two condoms sticking out
of her back pocket. Hernandez placed D.T. in the back of the patrol car and took her to
the police station. While in the patrol car, D.T. revealed her true name and age and
stated she had run away from a group home.
At the police station, Hernandez and a sheriff’s deputy interviewed D.T. for
over five hours. During the interview, D.T. identified Calhoun as her pimp and said she
had been working for him for several months. She said Calhoun had driven her to several
blades in San Bernardino and Orange County to work as a prostitute for him. She had
been with Calhoun the previous day, but had left him and took his cell phones with her.
Stewart had driven D.T. and K.V. to San Bernardino that day. D.T. said Calhoun had
“laid his hands on her” many times, recently had “socked her in the jaw,” and was mean
to her and did not respect her. Calhoun expected her to earn $500 to $600 in San
Bernardino and $900 in Orange County and if she did not make her “trap” (quota),
Calhoun would “whoop her ass.” Calhoun would apologize after striking D.T. but he did
not change his behavior.
D.T. told Hernandez the two cell phones found in Stewart’s vehicle
belonged to Calhoun. She took the cell phones from Calhoun because she was upset with
him and had left them in Stewart’s vehicle. The white HTC cell phone was used to listen
to music. The black Vortex cell phone was used for text messaging and had a contact
with the name “Daddy” with Calhoun’s photograph. D.T. said she used the black Vortex
cell phone to communicate with Calhoun.
Hernandez obtained permission to look through the Vortex cell phone and
D.T.’s ZTE cell phone. Hernandez reviewed the text messages and concluded they were
consistent with pimping and prostitution. In the text messages, D.T. referred to Calhoun
as John. The ZTE cell phone had a contact for “Daddy” with a photograph of Calhoun.
Hernandez also noticed several text messages sent to Stewart’s phone on May 10 and 11,
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2016. Some of the messages were consistent with pimping and prostitution. Hernandez
noticed there were 90 calls made between D.T. and Stewart from May 9 through May 11,
2016.
D.T. said that, on the previous day, Calhoun had been repeatedly calling her
and leaving threatening voicemail messages. He demanded she return his cell phones,
and called her a “ho,” a “slut,” and a “bitch.”
At the conclusion of the interview, Hernandez released D.T., who was
subject to a custody warrant, to Riverside County Child Protective Services. The next
day, Hernandez took photographs of D.T.’s Facebook messages from May 12, 2016,
which were depicted in exhibit 20. From the Facebook messages, it appeared D.T. had
contacted Calhoun and referred to him as Daddy.
III.
D.T. Returns to Prostitution with Calhoun as Her Pimp.
D.T.’s social worker picked up D.T. from the police station. At some point,
D.T. asked the social worker to stop the car. When the car stopped, D.T. got out and ran
to a gas station where Calhoun had agreed to pick her up. Calhoun was angry and
slapped D.T. in the face. He drove her to Louie’s house and told her never to leave him
again.
Shortly after returning to Louie’s, Calhoun and his cousin Joseph drove
D.T. to Figueroa Street in Los Angeles, an area known for prostitution activity. Calhoun
had told D.T. he was going to “put [her] down on Fig in L.A.” so that she would “make
money for him.” Calhoun gave D.T. three condoms and told her to complete three sex
acts and to text him before each one. D.T. completed oral sex with three customers and
gave Calhoun the money she had earned.
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Calhoun and D.T. returned to Louie’s house where, that night, they
engaged in sexual intercourse. D.T. testified she had sexual intercourse with Calhoun at
least four times and oral sex with him twice. She was 13 years old at the time.
Calhoun told D.T. they would travel to San Francisco because it was easier
to make money in San Francisco than it was in San Bernardino or Los Angeles. D.T. did
not want to prostitute herself in San Francisco, but she did not want to say so to Calhoun
for fear he would get angry and hit her. The next morning, Calhoun drove D.T. to San
Francisco, where they stayed for three days at his cousin’s house. He posted two ads on
Backpage and introduced D.T. to another prostitute named “Heaven.”
Calhoun and D.T. got into an argument while staying with his cousin.
Calhoun put his hands around D.T.’s neck and choked her. She had difficulty breathing,
passed out, fell, and scratched her right arm on a couch. When she regained
consciousness, Calhoun was standing over her. He said, “Look what you made me do”
and ordered D.T. to go to the car and clean up her arm.
After the third night, Calhoun drove D.T. back to Louie’s house. He left
after telling her to stay at the house. While Calhoun was gone, D.T. sent a text message
to a friend, who came to the house and picked her up. When Calhoun returned and
found D.T. gone, he sent her text messages asking her why she had left. The next
morning, the friend drove D.T. back to Louie’s house so that D.T. could retrieve some
personal items. When D.T. went inside, Calhoun told her to go to the bathroom, pulled
her by the arm, and demanded to know where she had been. D.T. said she had been at
her aunt’s house. Calhoun told D.T. to stop lying, backhanded her, and punched her
several times in the face. She fell backwards into the bathtub and, when she tried to get
up, Calhoun struck her in the right eye. D.T.’s nose started bleeding. Calhoun told her to
clean up and get out.
As D.T. walked outside, she received a telephone call from Calhoun’s
cousin Joseph. After she ended the call, Calhoun stepped outside and asked who had
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called. D.T. responded, “nobody.” Calhoun snatched the phone from D.T., looked
through it, and discovered text messages between her and Joseph. Calhoun threw the
phone to the ground, slapped D.T. in the face, and accused her of lying. She fell and,
when she tried to get back up, Calhoun slapped her again, threw her back down, and
choked her.
The next day, Calhoun told D.T. he had rented a room in San Bernardino
from a friend so they would have a place to stay. After they moved some boxes into the
room, Calhoun left and told D.T. to stay there and unload boxes.
That night, Calhoun picked up another woman and told D.T. the three of
them were going to Orange County to make money. D.T. agreed because she was afraid
he would hit her again. Calhoun drove to Harbor Boulevard and Hazard Avenue in Santa
Ana, parked on a side street, gave D.T. three condoms, and told her to go out and make
money for him and call him when she was finished. The other woman stayed in the car
with Calhoun.
D.T. completed one act of vaginal intercourse and another act of oral sex.
Calhoun had her charge $120 for the first and $80 for the second. D.T. gave Calhoun the
money. After taking D.T. to get something to eat, Calhoun drove back to Harbor
Boulevard and Hazard Avenue, gave D.T. three more condoms, and ordered her out of
the car. As Calhoun had instructed, D.T. walked along Harbor Boulevard and waved at
tricks to get their attention.
IV.
D.T. Is Detained in Santa Ana for Prostitution;
Calhoun Is Arrested.
On June 2, 2016, at about 3:06 a.m., Santa Ana Police Officer Robert
Velasco was patrolling the area of Harbor Boulevard and Hazard Avenue in Santa Ana.
The area is known as the Santa Ana Blade and is well known for pimping and trafficking
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of juveniles. Velasco had conducted over 100 pimping and prostitution investigations
during his four and a half years as a police officer.
Velasco noticed a very young woman walking along Hazard Avenue just
west of Harbor Boulevard. Because she looked extremely young and the area was known
for trafficking juveniles, Velasco pulled up and parked the patrol car alongside her. He
approached the young woman and asked her for her name and date of birth. She gave a
false last name and claimed she was born in October 1997. Velasco later learned the
young woman was D.T. When two records checks did not uncover any information for
her name or date of birth, Velasco told D.T. he knew she was a juvenile and was lying to
him. He asked her for proof of her name and birthdate but D.T. had no identification
with her.
Velasco asked D.T., who appeared nervous and scared, why she was out
walking at 3:00 a.m. She said she was walking home but said she did not know her home
address. When Velasco asked her why she did not know her home address, D.T. said she
was going to her cousin’s house. D.T. did not know the cousin’s name or address.
Velasco asked D.T. if he could look through her cell phone, which was a
brand “BLU.” D.T. agreed and gave him the phone. While Velasco was searching
through the cell phone, a text message came through at 3:11 a.m. from a contact named
John saying “WYA,” which means “where are you at?”
Velasco told D.T. he knew she was working as a prostitute. D.T. then
admitted she had been working as a prostitute for a couple of months and was from San
Bernardino, but had been to Santa Ana three to four times to work as a prostitute. She
said her friend named John, who had just texted her, had given her a ride from San
Bernardino to Santa Ana.
Velasco examined the text message thread between D.T. and John and
recognized several messages indicating a pimp/prostitute relationship. One such message
began with the words “Good morning, daddy,” which is significant because it is common
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for a prostitute to call her pimp “daddy.” Other such messages were “Get him for 200”
and “He will if get try and fuck 250.” These messages suggested to Velasco that a pimp
was helping D.T. negotiate prices for services. Velasco saw text messages reading:
(1) “Eating yo pussy extra”; (2) “Tell him he do T.G.E. 250”; (3) “You can have a room
available”; and (4) “He gave me 100.” According to Velasco, the first two messages
were the pimp helping to negotiate the price, the third message was the pimp telling the
prostitute he would provide a room to perform the sex act, and the final message was the
prostitute informing the pimp she had completed the sex act and she had the money.
Officer Velasco also saw a message thread reading: (1) “He want me to
come to Long Beach he said if he got a room”; (2) “He talking big money”; (3) “Okay”;
and (4) “What’s my name to him?” Velasco concluded the first two messages were the
pimp setting up a date for the prostitute.
After reading these messages, Velasco and D.T. went to find John. D.T.
told Velasco that John was driving a green four-door Honda Accord and that he might be
in the area of Hazard Avenue and Bewley Street. Velasco placed D.T. in the back of his
patrol car and drove to that area. Velasco eventually found the green Honda Accord in
the area of Hazard Avenue and West Street in Santa Ana.
Velasco parked directly behind the Honda, got out of his patrol car, and
with his partner Officer Phan, made contact with the two occupants. Calhoun was in the
driver’s seat. The passenger was released without being interviewed. Velasco dialed the
number listed for “John” in D.T.’s phone, and Calhoun’s cell phone rang. During a
search of Calhoun’s car, $99 was found.
Velasco had Calhoun step out of the car and detained him. Calhoun was
holding a blue, Samsung Galaxy cell phone. Calhoun confirmed the phone belonged to
him.
After detaining Calhoun, Velasco further questioned D.T. She told Velasco
she had been working in Santa Ana for less than an hour. She confirmed that “John” was
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the man seated in the driver’s side of the Honda, described him as a friend, and said he
drove her to Orange County from San Bernardino because she had no other way to get
here. She said Calhoun keeps track of and protects her, she gives him gas money, and the
$99 the officers found was her money that she had given to Calhoun to hold. She
claimed Calhoun was not her pimp and had done nothing wrong, although he knew she
was working in Santa Ana as a prostitute.
At the police station, an officer named Gibbons obtained D.T.’s correct age,
name, and date of birth. D.T. was arrested for lying to a peace officer and was sent to
juvenile hall. Anaheim Police Investigator Happy Medina interviewed D.T. at juvenile
hall. She told him Calhoun was her pimp.
V.
Expert Testimony on Human Trafficking and Pimping
Medina testified as an expert in pimping, pandering, and human trafficking.
He also testified about the rules governing the pimping and pandering subculture. For
instance, if the pimp is African-American, the prostitute is prohibited from looking at
other African-American men for they might also be pimps. The prostitute must do
whatever the customer asks her to do. Some services cost more than others. The pimp
dictates everything the prostitute does.
A quota is an amount set by a trafficker or pimp which his prostitutes must
earn in a day. A quota can be anywhere from $250 to $2,000 a day. A prostitute is not
permitted to stop working until she has made the quota. The earnings are called a “trap.”
After the prostitute engages in a couple of sex acts, the pimp takes the trap to prevent her
from getting robbed or keeping some for herself.
Pimps generally give the prostitutes condoms three at a time so the pimps
can control the number of sex acts. After every three sex acts, the prostitute must go
back to the pimp’s location, turn over the money, and get more condoms. The prostitute
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will send a text message to the pimp when the sex act is starting and tell the pimp how
much the customer will be paying. The pimp waits nearby. If a prostitute comes into
contact with police, the pimp expects her “100 percent to lie” about their relationship.
The prostitute is permitted to say she gives her pimp money and he drives her to the
track, but, even if arrested, is never to disclose that she has a pimp.
Most communications between a prostitute and a pimp are made through
text messaging. Medina has spoken to prostitutes who were told to delete all text
messages and believes that practice is common. Pimps post advertisements for their
prostitutes on various websites, such as Backpage and Craigslist. The pimp will use a
false name for the prostitute and, if she is a minor, lie about her age. The pimp will
photograph the prostitute for the advertisement and dictate what the prostitute wears and
how she poses. The advertisement will ask the potential customer to send a text message
to the pimp, who is posing as the prostitute. All of the arrangements are made through
the pimp.
There are several styles of pimping and recruitment of prostitutes. The
most common style is called the “boyfriend pimp” in which the pimp pretends to develop
a normal boyfriend/girlfriend relationship with a girl, but the pimp’s motive is to turn her
into a prostitute. This style is most successful on girls who have not been prostitutes in
the past. A “finesse pimp” is similar to a boyfriend pimp but uses charm to nurture
young girls. By contrast, a “guerilla pimp” is one who predominately engages in force
and violence to control the prostitute. Pimps can use more than one style; for example, at
times, a boyfriend pimp may become violent.
A majority of the girls who become prostitutes have no father figure or
male role model in their lives and many also have suffered personal trauma such as
physical or sexual abuse. Most of girls who become prostitutes have a history of being in
group homes or foster care, or running away from home. Girls have told Medina they
were recruited directly out of foster care, placement facilities, and juvenile hall, where
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they overall had bad experiences. Girls who lived in those conditions are “longing for
that attention, some kind of stability in their lives,” and pimps will tell them “all the
things they have been waiting to hear.”
“Daddy” is a very common term used by prostitutes to refer to their pimps.
It connotes a father figure, protector, nurturer, and the person who lays down the rules
and sets the boundaries.
A pimp expects a prostitute to have sex with him “on demand.” The
prostitute is expected to view sex with the pimp as “sort of a reward, something that you
get to do with daddy.” Medina had spoken with prostitutes who do not want be in that
trade but nevertheless stayed with the same pimp. The girl stays because she has
nowhere else to go and no other way to earn money, and accepts prostitution as her fate.
She views the pimp, even if he is abusive, as the only person who accepts her for who
and what she is.
Medina also looked at photographs downloaded from Calhoun’s Samsung
Galaxy cell phone. One photograph depicted Calhoun in a vehicle holding $100 bills. In
more than one photograph, D.T. was in the back seat of the car. These photographs were
of a type commonly taken by pimps, panderers, and human traffickers.
VI.
Expert Testimony on Cell Phone Records
Expert testimony was offered on the subject of cell phone records and data.
The following is a breakdown of the various cell phones in this case:
HTC: The white cell phone found in the center console of Stewart’s
vehicle. D.T. told Hernandez this phone belonged to Calhoun.
Vortex: The black cell phone found in the center console of Stewart’s
vehicle. It belonged to Calhoun but was used by D.T. Hernandez identified the
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Cellebrite report for the Vortex cell phone as exhibit 19. Cellebrite is a forensic
download or collection of data from a cell phone.
ZTE: The personal cell phone used by D.T. at the time she was detained by
Hernandez in May 2016. The Cellebrite download report is exhibit 34.
Stewart’s cell phone: The cell phone used by Stewart and apparently
confiscated by police in May 2016.
BLU: The personal cell phone used by D.T. at the time Calhoun was
detained. Exhibit 21 is the Cellebrite download of text messages from this phone.
Exhibit 22 identifies text messages on this cell phone to and from the contact “my baby
heaven.” Exhibit 23 identifies text messages on this phone to and from the number (xxx)
xxx-7157.
Samsung Galaxy: The cell phone Calhoun was holding when he was
detained by Velasco. Exhibit 24 is the Cellebrite download report for this cell phone.
In addition, there were messages and data pertaining to an unrecovered cell
phone with the number (xxx) xxx-5542.
Bruce Linn is an investigator with the Orange County District Attorney’s
Office and qualified as an expert in cell phone technology. Linn is assigned to the
“TRACKRS” unit, which stands for “task force review aimed at catching killers, rapers
[sic], and sexual offenders.” He conducted a forensic analysis of a Cellebrite download
from the Samsung Galaxy cell phone recovered from Calhoun.
Linn is able to determine from data downloaded from a cell phone where it
has been because the internal components of a cell phone produce GPS coordinates. A
photograph taken by a cell phone camera produces metadata of the latitude and longitude
lines identifying the camera’s location when the photograph was taken.
Linn was provided a Cellebrite download from the Samsung Galaxy cell
phone recovered from Calhoun. He determined that only a portion of the photos had
location data. Based upon the chronology of the photos from earliest-dated to most
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recent, he inputted the latitude/longitude into Cell Hawk, which created the map showing
where the photographs were taken. Linn reviewed all the photographs in the Cellebrite
download and noticed Calhoun appeared in most of the photographs. Linn also noticed
videos in the Cellebrite download depicting Calhoun.
At trial, Linn gave a presentation on PowerPoint showing a map, date, time,
and latitude and longitude coordinates of 61 photographs and two videos. The
presentation showed that during the relevant time period, Calhoun was in San
Bernardino, Riverside, Modesto, San Jose, San Francisco, Santa Ana, Los Angeles, and
Long Beach.
During his investigation, Linn downloaded data from D.T.’s BLU cell
phone using Cellebrite. He noticed two separate photographs were take on May 17, 2016
at 11:52 a.m. on both D.T.’s cell phone and Calhoun’s cell phone at the same location
near Richmond Point in the San Francisco Bay area.
Detective Hernandez, who had detained D.T. in May 2016, testified about
text messages retrieved from the two cell phones found in Stewart’s car (the HTC cell
phone and the Vortex cell phone), D.T.’s BLU cell phone, and Stewart’s own cell phone.
Hernandez was familiar with Cellebrite downloads and had Cellebrite downloads
conducted on all of those cell phones.
D.T. had told Hernandez that she used the Vortex cell phone to
communicate with Calhoun. Hernandez testified the Vortex cell phone had a contact
under the name “Daddy” with a corresponding phone number of (xxx) xxx-5542. Text
messages exchanged between D.T. and Calhoun related to pimping and prostitution. For
example, in one message thread, D.T. sent a message advising Calhoun she had a
customer. He replied, “Keep walking.” She then asked Calhoun how long she had to
remain on the blade and if she could take a break and talk to a friend of hers. Calhoun
ordered her immediately to stop talking to the friend.
16
Hernandez was not sure to which cell phone the number (xxx) xxx-5542
was connected. She did not believe that number was associated with either the HTC
phone or the Vortex phone. D.T. saved that number under the contact “Daddy.” On May
12, 2016, Calhoun had told D.T. he had a new phone number.
Medina testified he was familiar with Cellebrite downloads and reports and
had reviewed the cell phone downloads from the Samsung Galaxy, the BLU, the Vortex,
the HTC, and the ZTE cell phones. Medina also reviewed exhibit 35, which is a
collection of text messages to or from the “Daddy” contact with the number (xxx)
xxx-5542. Medina read one incoming message from the Daddy contact: “Don’t give no
fuck. Give me my phones. I need my white one. I’m not playing.”
Medina identified text messages on the Vortex cell phone to or from the
contact Daddy with the number (xxx) xxx-5542. Outgoing messages are addressed to
“Daddy” or “John.” The messages relate to pimping and prostitution activities. One
incoming text message read, “Come get this condom” and an outgoing message read,
“Daddy, hows much long I got to be out here and OK.” Medina testified the question
about how much longer she had to be out was consistent with a pimp controlling the
prostitutes working on the track and “okay” meant the girl would meet the pimp to get
condoms. The next message read, “We need at least 100,” and was significant because it
told the girl she had to make at least $100 before she could stop working.
Medina identified and reviewed exhibit 33, the Cellebrite report for the
ZTE cell phone. Medina testified the BLU cell phone had outgoing text messages that
were consistent with pimping, pandering, and human trafficking. In one message, D.T.
texted, “Baby, I want to make up with you. Imma give you the best . . . sex ever, babe.
I’m sorry for today.” In another, she sent the following text message to the contact listed
as John: “Good morning, Daddy. I hope you have a great day today. I’m sorry for
everything I have been doing wrong. You are the best thing that ever happened to me.
And when I say that I want to spend the rest of my life with you, I mean it Babe. Just
17
know that I love you so much.” Those messages were consistent with the common
practice of a victim apologizing to her pimp after a fight.
Another message thread was between D.T. and her friend Heaven. D.T.
sent a message stating, “Heaven, what you doing? I’m in Oakland making my money.
And it’s for Daddy. Pockets.” Heaven responded, “Be safe tonight. What part of
Oakland you in?” D.T. replied back that she was on “International,” a well-known track
in Oakland. Later, D.T. texted Heaven and told her that she was about to get on the
freeway and head back to San Bernardino. Heaven asked D.T. where “John” was. When
D.T. sent a message back that he was “right here,” Heaven’s response was, “Tell him [to]
answer my text. It’s important.” Medina testified those communications were consistent
with contacts between two women working for the same pimp.
SUMMARY OF VERDICT AND SENTENCES
The jury found Calhoun guilty of one count of human trafficking of a minor
1
under the age of 18 (count 1, Pen. Code, § 236.1, subd. (c)(1)), one count of pimping of
a minor under the age of 16 (count 2, § 266h, subd. (b)(2)), one count of pandering a
minor under the age of 16 by procuring (count 3, § 266i, subds. (a)(1) & (b)(2)), two
counts of lewd and lascivious acts on a child under the age of 14 (counts 4 & 6, § 288,
subd. (a)), unlawful sexual intercourse (count 5, § 261.5, subd. (d)), and oral copulation
with a child under the age of 14 (count 7, § 288a, subd. (c)(1)). The jury found true the
allegation under section 236.1, subdivision (c)(2), made with respect to count 1, that
Calhoun unlawfully used force, fear, fraud, deceit, coercion, violence, duress, menace, or
threat of unlawful injury in committing the crime. Following a bench trial, the court
found a prior conviction allegation to be true.
The court sentenced Calhoun as follows: (1) 15 years to life under count 1
as enhanced by the true finding on the section 236.1 allegation; (2) six years on count 4,
1
Undesignated code citations are to the Penal Code.
18
consecutive to count 1; (3) two years on count 6, consecutive to count 1; (4) two years on
count 7, concurrent to count 1; (5) six years on count 2, concurrent to count 1; (6) six
years on count 3, concurrent to count 1; (7) three years on count 5, concurrent to count 1.
The court stayed execution of sentence on counts 2, 3, and 5 pursuant to section 654.
DISCUSSION
I.
The Trial Court Did Not Err by Excluding Evidence of
D.T.’s Acts of Prostitution Occurring After Calhoun Was
Placed in Custody.
Calhoun contends the trial court erred by not permitting him to introduce
evidence that D.T. continued to work as a prostitute after he was placed in custody. The
trial court concluded such evidence was inadmissible under Evidence Code section 1161,
subdivision (b) (Evidence Code section 1161(b)) and, if admissible, was subject to
exclusion under Evidence Code section 352. Evidence Code section 1161(b) reads:
“ 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.”
Calhoun argues the evidence of D.T.’s subsequent prostitution activity was
relevant and admissible because: (1) Evidence Code section 1161(b) only excluded
evidence of D.T.’s sexual history and history of commercial sexual acts that occurred
before he was placed in custody and (2) he sought to admit evidence of D.T.’s subsequent
commercial sex acts and prostitution arrests not for credibility or impeachment purposes
but to negate an element of the offense of human trafficking. Calhoun also contends the
trial court never made an express finding that D.T. was a victim of sex trafficking.
19
A. Background
Before trial started, the prosecution moved to exclude evidence of D.T.’s
prior or subsequent acts of prostitution for purposes of impeachment. Defense counsel
stated he wanted to impeach D.T. with evidence of acts of prostitution committed after
Calhoun was placed in custody. Defense counsel argued prostitution is a crime of moral
turpitude, there was no causal connection between Calhoun and the acts of prostitution
committed by D.T. after Calhoun was in custody, and Evidence Code section 1161(b) did
not apply because the People had made no preliminary showing that D.T. was a victim of
human trafficking. The trial court ruled that Evidence Code section 1161(b) barred the
defense from introducing evidence of subsequent acts of prostitution for the purpose of
impeaching D.T. or challenging her credibility.
During a break in D.T.’s cross-examination, the trial court returned to the
issue of evidence of D.T.’s acts of prostitution after Calhoun had been placed in custody.
The court stated: “There is so far uncontroverted testimony that [D.T.] had not been a
prostitute until the defendant brought her into the business, this is from direct
examination from the prosecution, the testimony that [Calhoun] caused it by having her
make money, a term she stated that she had never heard before. Going into her
subsequent sexual history as a prostitute is not relevant to the case. It is inflammatory.
And even if [Evidence Code section] 1161 hypothetically did not exist, this would be a
very simple [Evidence Code section] 352 analysis which also applies here because any
probative value is outweighed by the prejudice. [¶] Now if that becomes an issue, we can
talk about that. So far the only evidence that the witness prostituted herself was because
of how the defendant taught her to do that. That’s after the fact, after the defendant was
arrested. According to her, he gave her the tools. The subsequent conduct does not
become relevant at that point.”
After the prosecutor had completed redirect examination of D.T., defense
counsel asked the court to reconsider its ruling due to her testimony that Calhoun had
20
been her only pimp and was responsible for prostituting her to 20 customers. Defense
counsel argued that D.T.’s testimony created the misleading impression that she ceased
engaging in prostitution once Calhoun was in custody. The trial court confirmed its
ruling that evidence of D.T.’s subsequent acts of prostitution was inadmissible under
Evidence Code section 1161(b).
B. The Evidence Was Inadmissible Under Evidence Code
Section 1161(b) for Credibility or Impeachment of Character.
Calhoun was charged with and convicted of human trafficking in violation
2
of section 236.1. In November 2012, the voters of the State of California passed the
Californians Against Sexual Exploitation Act (the CASE Act) with the purpose and intent
“‘[t]o combat the crime of human trafficking’” and “‘[t]o recognize trafficked individuals
as victims and not criminals, and to protect the rights of trafficked victims.’” (In re M.D.
(2014) 231 Cal. App. 4th 993, 998-999, quoting Prop. 35, § 3, as approved by voters Gen.
Elec. (Nov. 6, 2012) eff. Nov. 7, 2012.) “The CASE Act made various changes to state
law regarding human trafficking, including expanding the definition of the offense and
increasing the punishment for such offenses.” (In re Aarica S. (2014) 223 Cal. App. 4th
1480, 1486 (Aarica S.).)
Evidence Code section 1161 was enacted as part of the CASE Act. (In re
M.D., supra, 231 Cal.App.4th at p. 998.) The full text of Evidence Code section 1161 is:
2
Subdivision (c) of section 236.1 defines the offense of human trafficking: “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. A
violation of this subdivision is punishable by imprisonment in the state prison as follows:
[¶] (1) Five, 8, or 12 years and a fine of not more than five hundred thousand dollars
($500,000). [¶] (2) Fifteen years to life and a fine of not more than five hundred
thousand dollars ($500,000) when the offense involves force, fear, fraud, deceit,
coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another
person.”
21
“(a) 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 the commercial
sexual act. [¶] (b) 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.”
Evidence Code section 1161, subdivision (a) (Evidence Code section
1161(a)) in effect means a victim of human trafficking cannot be prosecuted for an act of
prostitution that is causally connected to the victim’s status as human trafficking victim.
(See Aarica S., supra, 223 Cal.App.4th at pp. 1487-1488.) Evidence Code section
1161(a) is not directly relevant here because D.T. was not prosecuted. As we shall
explain, it is relevant to interpreting Evidence Code section 1161(b).
The issue presented here is whether Evidence Code section 1161(b) applies
only to the human trafficking victim’s sexual conduct and acts of prostitution committed
before the alleged human trafficker was placed in custody. Calhoun argues that Evidence
Code section 1161(b), by referring to “sexual history” and “history of any commercial
sex act,” only excludes evidence of D.T.’s conduct prior to his arrest. (Italics added.)
The Attorney General argues that nothing in the text of the CASE Act limits the scope of
Evidence Code section 1161(b) to sexual acts and acts of prostitution committed before
the alleged human trafficker was placed in custody. In resolving this question, we work
on a blank slate. No reported decision has addressed the scope of Evidence Code section
1161(b).
We review issues of statutory interpretation de novo (Kavanaugh v. West
Sonoma County Union High School Dist. (2003) 29 Cal. 4th 911, 916) including statutes
added by the passage of a ballot initiative (People v. Park (2013) 56 Cal. 4th 782, 796).
The primary purpose is to ascertain and effectuate the intent of the voters who passed the
22
ballot initiative. (People v. Briseno (2004) 34 Cal. 4th 451, 459.) “‘In interpreting a voter
initiative . . . we apply the same principles that govern statutory construction. [Citation.]
Thus, “we turn first to the language of the statute, giving the words their ordinary
meaning.” [Citation.] The statutory language must also be construed in the context of
the statute as a whole and the overall statutory scheme [in light of the electorate’s intent].
[Citation.] When the language is ambiguous, “we refer to other indicia of the voters’
intent, particularly the analyses and arguments contained in the official ballot
pamphlet.”’” (Ibid.)
The language of Evidence Code section 1161(b) renders inadmissible for
impeachment or credibility purposes “evidence of sexual history or history of any
commercial sexual act of a victim of human trafficking.” (Italics added.) What does
“history” mean?
History, both formally and colloquially, has several meanings. Formally, it
can mean a “narrative of events connected with a real or imaginary object, person, or
career” or “a systematic written account comprising a chronological record” or the formal
“branch of knowledge . . . of human activities.” (Webster’s 3d New Internat. Dict.
(2002) pp. 1073-1074.) History can mean simply a “tale, story.” (Merriam-Webster’s
Collegiate Dictionary (11th ed. 2004) p. 590, capitalization omitted.) In everyday
speech, history can mean events in the past or even reputation.
The various definitions of history all refer to events in the past, and
Calhoun says history as used in Evidence Code section 1161(b) has the same meaning.
But past of what? Calhoun says before he was taken into custody. Evidence Code
section 1161(b) does not include such a limitation or any temporal limitation except for
the word “history.” We conclude the more reasonable interpretation is that “history”
means at any time before the victim testifies at trial.
Evidence Code section 1161(b) says history of “any commercial sexual
act.” (Italics added.) Use of the word “any” suggests the inadmissible evidence is not
23
limited to commercial sexual acts committed by the victim while using the alleged human
trafficker as the pimp.
Evidence Code section 1161(a) draws a causal connection between the
sexual act and the victim’s status as human trafficking victim by making inadmissible
evidence that the victim “has engaged in any commercial sexual act as a result of being a
victim of human trafficking.” (Italics added.) Evidence Code section 1161(a) applies
“only when there is a specific causal connection between the victim’s status as a victim
of human trafficking and the particularly commercial sex act at issue.” (Aarica S., supra,
223 Cal.App.4th at pp. 1487-1488.) No similar language appears in Evidence Code
section 1161(b). “If the Legislature has included one provision in one part of a statute
but excluded it from another, a court should not imply the omitted provision in that part
of the statute that does not contain it.” (People ex rel. Gwinn v. Kothari (2000) 83
Cal. App. 4th 759, 770.)
The Legislative Analyst stated that ballot initiative 35 “makes evidence of
sexual conduct by a victim of human trafficking inadmissible for the purposes of
attacking the victim’s credibility or character in court.” (Ballot Pamp., Gen. Elec. (Nov.
6, 2012), analysis of Prop. 35 by the Legislative Analyst, p. 44.) As the Attorney General
argues, the language used by the Legislative Analyst encompasses all of the victim’s
sexual conduct.
One purpose of the CASE Act was 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.) At trial, Medina testified that victims of human
traffickers are typically runaways who often had bad experiences in the juvenile
dependency system. Once introduced to (or forced into) prostitution by the trafficker, the
victim remains a prostitute because she has nowhere else to go and no other way to earn a
living. The human trafficker, having forced the victim into a life of prostitution, should
24
not be permitted to use the victim’s sexual history and history of prostitution to discredit
the victim and exonerate himself.
Calhoun argues Evidence Code section 1161(b) requires the prosecution to
prove the witness was in fact a victim of human trafficking before the sexual history and
commercial sex history evidence can be excluded. Otherwise, he argues, Evidence Code
section 1161(b) “would create a blanket privilege to all victims of human trafficking
without the prosecution having to prove that the minor was in fact a victim of human
trafficking.” Calhoun relies on In re M.D., supra, 231 Cal. App. 4th 993, in which the
court interpreted Evidence Code section 1161(a) as placing the burden of proof on the
minor defendant to prove she was a victim of human trafficking when she moved to
exclude the evidence of her commercial sex acts. (Id. at p. 1001.) The court stated,
“nothing in the language of [Evidence Code] section 1161 suggests an intent to create an
evidentiary presumption that all minors charged with committing commercial sex acts
are victims of human trafficking.” (Ibid., italics added.)
D.T. was not charged with prostitution or any offense in this case.
Evidence Code section 1161(b) does not have the “as a result of language” found in
Evidence Code section 1161(a). In People v. Brown (2017) 14 Cal.App.5th 320, 341, the
court rejected the defendant’s argument that by using the word “victim,” Evidence Code
section 1161(b) violated due process and the confrontation clause because, until a trial,
“‘no “victim” yet exists.’” The Court of Appeal concluded the word “victim” as used in
Evidence Code section 1161(b) is synonymous with “‘complainant,’ ‘complaining
witness,’ or the older term ‘prosecutrix.’” (Ibid.) “[A]ny rational trial court would
understand the context of the term, and would not presume the defendant was guilty
before trial.” (Ibid.)
In any case, the trial court did, in effect, make a preliminary finding that
D.T. was a victim of human trafficking. During D.T.’s cross-examination, the court
stated, “there is so far uncontroverted testimony that [D.T.] had not been a prostitute until
25
the defendant brought her into the business.” The evidence at trial was overwhelming
that D.T. was a victim of human trafficking and that Calhoun was the trafficker. D.T.’s
own testimony to that effect was bolstered by the percipient and expert testimony of
Hernandez and Medina. There could be no question that D.T. was a victim of human
trafficking for purposes of Evidence Code section 1161(b).
It might be, as Calhoun claims, that D.T. was not a human trafficking
victim in the subsequent acts of prostitution in the sense that she had no pimp or her pimp
was not Calhoun. He argues that excluding evidence of subsequent acts of prostitution
would make section Evidence Code 1161(b) “an affirmative defense to prostitution.”
Because D.T. was not on trial for prostitution, we are not considering whether or under
what circumstances Evidence Code section 1161(b) evidence is admissible to challenge
the credibility or impeach the character of a defendant. The important point here is D.T.
was not the defendant but a witness testifying as a human trafficking victim against the
man who, as a human trafficker, induced or forced her into prostitution. In that situation,
section Evidence Code 1161(b) prohibited the introduction into evidence, for credibility
or impeachment purposes, evidence of “any” history of commercial sexual act of the
human trafficking victim.
C. The Evidence Was Irrelevant to Negate an Element of
Human Trafficking; Any Error in Excluding the Evidence
Was Harmless.
Calhoun argues evidence of D.T.’s commercial sexual acts was admissible
to negate an element of the crime of human trafficking. The evidence, he argues, would
negate the inducement, causation, and persuasion elements of section 236.1: “[A]ny
evidence that the victim, subsequent to [Calhoun]’s arrest, is using other people to
conduct her prostitution business would be relevant to whether the complaining witness is
actually a victim of human trafficking in this case. If the evidence showed that [D.T.]
26
was an independent contractor and not the property of a pimp, it would have been
relevant to demonstrate that she was an independent contractor with [Calhoun] as well.”
Calhoun undoes his own argument when, in his appellant’s reply brief, he
asserts that evidence of D.T.’s other commercial sex acts “would have supported and
corroborated her previous statements to law enforcement that [Calhoun] was not her pimp
but a friend.” That is a credibility or impeachment purpose intended to discredit D.T.’s
trial testimony.
To the extent Calhoun had a legitimate purpose for introducing evidence of
D.T.’s other commercial sexual acts, exclusion of the evidence was harmless. The
evidence that D.T. was a victim of human trafficking and that Calhoun was the trafficker
was overwhelming. Evidence that D.T. might have later worked as an “independent
contractor” rather than for a pimp does not negate Calhoun’s culpability as a sex
trafficker who initially induced or forced her into a life of prostitution. From evidence of
subsequent acts of prostitution, it is not reasonably likely the jury would have drawn the
inference that D.T. was an “independent contractor” when she was with Calhoun because
such an inference would have been contrary to nearly all the other evidence. We
conclude it was not reasonably probable that a result more favorable to Calhoun would
have been reached had he been permitted to introduce evidence of D.T.’s commercial sex
acts for a purpose other than credibility or impeachment. (People v. Watson (1956) 46
Cal. 2d 818, 836 (Watson).)
D. The Trial Court Did Not Err by Excluding the Evidence
Under Evidence Code Section 352.
Evidence of D.T.’s subsequent commercial sex acts was subject to
exclusion under Evidence Code section 352. The trial court found that any probative
value of the evidence was outweighed by prejudice. The trial court’s section 352 ruling
was not an abuse of discretion. (People v. Brooks (2017) 3 Cal.5th 1, 40-41.) The
relevance of evidence of D.T.’s subsequent commercial sexual acts was substantially
27
outweighed by probability it would focus attention on D.T.’s character and conduct and
away from the issues of Calhoun’s culpability. Admission of the evidence had the
distinct probability of misleading the jury into believing D.T., and not Calhoun, was on
trial. In addition, as the Attorney General argues, admission of evidence of D.T.’s
subsequent commercial sex acts would have led to a mini-trial on all the circumstances
surrounding D.T.’s conduct.
II.
The Evidence at the Preliminary Hearing Imparted Notice
to Calhoun of the Factual Basis for Counts 6 and 7
Sufficient to Satisfy Due Process.
Calhoun was charged in count 6 with committing a lewd and lascivious act
on a child under the age of 14 in violation of section 288, subdivision (a) and was
charged in count 7 with oral copulation of a child under the age of 14 in violation of
section 288a, subdivision (c)(1). Calhoun argues he was denied due process notice of the
charges in counts 6 and 7 because he was convicted of them based on evidence not
adduced at the preliminary hearing.
A. Background
The initial felony complaint alleged six counts. Count 1 charged Calhoun
with human trafficking of a minor, count 2 charged him with pimping a minor, and count
3 charged him with pandering with a minor under the age of 16. Counts 4 and 6 charged
Calhoun with violating of section 288a—committing a lewd and lascivious act on a child
under the age of 14—and count 5 charged him with violating section 261.5, subdivision
(b)—engaging in unlawful sexual intercourse with a minor.
At the preliminary hearing, D.T. testified she performed oral sex with
Calhoun in Santa Ana on June 1, 2016. She could not recall where in Santa Ana or at
what time that happened. At the preliminary hearing, D.T. testified she had sexual
intercourse with Calhoun on June 1, 2016 at the home of his friend Joe. She also testified
28
she had sexual intercourse with Calhoun at his friend’s house in San Bernardino and, on
two occasions while they were in San Francisco, they had sexual intercourse at a cousin’s
house. D.T. testified that on June 1 and 2, she caught five dates with customers.
Based upon D.T.’s testimony, the prosecution requested the complaint be
amended to add two more counts, count 7 and count 8, both alleging that between June 1
and June 2, 2016, Calhoun violated section 288a, subdivision (c)(1) by participating in an
act of oral copulation with D.T. Count 7 was based on the theory D.T. orally copulated
customers and Calhoun aided and abetted those offenses. Count 8 was based on D.T.’s
testimony that she orally copulated Calhoun on June 1 or 2, 2016. At the preliminary
hearing, the prosecutor confirmed that count 6 was also based on the theory Calhoun had
aided and abetted customers in committing lewd and lascivious acts upon Danielle.
The trial court granted the request to add counts 7 and 8. The court then
found sufficient and probable cause and held Calhoun to answer counts 1 through 8.
Subsequently, the trial court granted Calhoun’s motion under section 995 to
dismiss newly added count 7. An amended information removed the previously
dismissed count 7 and renumbered count 8 as count 7. Count 6 remained count 6.
When the case was tried, count 7 alleged that on or about June 1 and 2,
2016, Calhoun violated section 288a, subdivision (c)(1) by engaging in oral sex with
D.T., a child under 14 years of age and more than 10 years younger than he was. Count 6
alleged that on or about June 1 and 2, 2016, Calhoun violated section 288, subdivision (a)
by committing a lewd and lascivious act on the body of D.T., a child under 14 years of
age. Count 4 alleged the same offense as count 6 but for the time period from April 20
through June 2, 2016.
At trial, D.T. testified she had oral sex with Calhoun twice. D.T. could not
recall where, when, or how the acts of oral sex took place except to say they took place
somewhere in California. She was certain she orally copulated Calhoun twice. D.T.
testified she had sexual intercourse with Calhoun at least four times, twice on two
29
different occasions at Louie’s house. Later, during cross-examination, D.T. testified she
did not know where or when she had sexual intercourse with Calhoun. D.T. also testified
that on the night of June 1 and 2, 2016 she caught only two dates, rather than five.
At trial, the prosecution did not argue, and the court never instructed the
jury, that count 6 was based on an aiding and abetting theory. Instead, the prosecutor
argued in closing that count 6 related to one of the occasions when D.T. had sexual
intercourse with Calhoun and count 7 related to an act of oral copulation between her and
Calhoun. The trial court gave a unanimity instruction directed to counts 4, 6, and 7.
B. Relevant Law
Article I, section 14 of the California Constitution requires that “[f]elonies
shall be prosecuted as provided by law, either by indictment or, after examination and
commitment by a magistrate, by information.” This constitutional requirement means a
person may not be prosecuted “in the absence of a prior determination of a magistrate or
grand jury that such action is justified.” (Jones v. Superior Court (1971) 4 Cal. 3d 660,
666.) “Before any accused person can be called upon to defend himself on any charge
prosecuted by information, he is entitled to a preliminary examination upon said charge,
and the judgment of the magistrate before whom such examination is held as to whether
the crime for which it is sought to prosecute him has been committed, and whether there
is sufficient cause to believe him guilty thereof. These proceedings are essential to
confer jurisdiction upon the court before whom he is placed on trial.” (People v. Bomar
(1925) 73 Cal. App. 372, 378.)
Once a defendant has been held to answer on the offenses alleged in a
complaint, the People must within 15 days file an information alleging the offenses
shown by the evidence presented at the preliminary hearing. (§ 739.) Due process
requires that “an accused be advised of the charges against him so that he has a
reasonable opportunity to prepare and present his defense and not be taken by surprise by
evidence offered at his trial.” (People v. Jones (1990) 51 Cal. 3d 294, 317.) A defendant
30
therefore cannot be prosecuted for an offense not shown by the evidence at the
preliminary hearing or not arising out of the transaction upon which the commitment was
based. (People v. McCoy (2013) 215 Cal. App. 4th 1510, 1531; People v. Graff (2009)
170 Cal. App. 4th 345, 360 (Graff).) Phrased somewhat differently, the rule is, “[a]n
information which charges the commission of an offense not named in the commitment
order will not be upheld unless (1) the evidence before the magistrate shows that such
offense was committed [citation], and (2) that the offense ‘arose out of the transaction
which was the basis for the commitment on a related offense.’” (Jones v. Superior Court,
supra, 4 Cal.3d at pp. 664-665.)
C. There Was No Material Variance Between the Evidence
at the Preliminary Hearing and the Evidence at Trial for
Counts 6 and 7.
Calhoun argues his conviction under count 7 was based on evidence not
elicited at the preliminary hearing. At the preliminary hearing, D.T. testified that she
engaged in oral sex once with Calhoun, in Santa Ana. At trial, D.T. testified she orally
copulated Calhoun twice, but could not remember where or when she did so other than to
say it was in California.
The variance between D.T.’s preliminary hearing testimony and trial
testimony was not material and does not warrant dismissal of count 7. “[U]nder normal
circumstances, [a defendant’s] opportunity to prepare an effective defense would not be
affected merely because the evidence at trial showed the offenses occurred at a different
time (within the time frame alleged in the original information) or a different [place]. . . .
[N]either the time [citation] nor the place at which an offense is committed [citation] is
material, and an immaterial variance will be disregarded.” (People v. Pitts (1990) 223
Cal. App. 3d 606, 906 (Pitts).)
The preliminary hearing placed Calhoun on notice he was being charged
with one count of engaging in oral copulation with D.T. Her trial testimony was that she
31
orally copulated him twice. D.T. never recanted her preliminary hearing testimony; she
merely testified at trial she could not remember where or when the acts occurred. D.T.’s
trial testimony did not foreclose the possibility that at least one of the two acts was the
one to which D.T. testified at the preliminary hearing. Either act of oral copulation to
which D.T. testified at trial would have supported a conviction under count 7, and the
trial court gave a unanimity instruction. Defendant does not demonstrate how he was
misled when mounting his defense to count 7.
As to count 6, Calhoun argues: “The oral copulation events that [D.T.]
testified to at trial and the evidence supporting Count Six were never the subject of a
preliminary hearing . . . where it could be determined whether there was probable
cause to believe that the offense had occurred.” D.T.’s testimony at the preliminary
hearing supported binding over Calhoun under count 6 on a theory he directly committed
lewd and lascivious acts on D.T. At the preliminary hearing, D.T. testified Calhoun had
sexual intercourse with her on at least four occasions between April 20 and June 1, 2016.
Any one of those acts would have supported a conviction under section 288,
subdivision (a) inasmuch as sexual intercourse when committed on a 13-year-old girl is a
lewd and lascivious act.
The preliminary hearing thus placed Calhoun on notice that he must be
prepared to defend against no less than four acts of committing a lewd and lascivious act
on a child. Count 4 covered the period from April 20 through June 2, 2016, while count
6 covered the period June 1 and 2 of the same year. Although the prosecutor stated at the
preliminary hearing that count 6 was based on an aiding and abetting theory, the evidence
presented, and thus the transcript of the hearing, established he also could be held liable
as a direct perpetrator. “[I]t is not the complaint but the totality of the evidence produced
at the preliminary hearing which notifies the defendant of the potential charges he may
have to face in the superior court.” (People v. Donnell (1976) 65 Cal. App. 3d 227, 233.)
32
Calhoun contends the evidence at the preliminary hearing was insufficient
to bind him over on counts 6 and 7 because at trial D.T. retracted her preliminary hearing
testimony. She did no such thing. At trial, D.T. testified she and Calhoun had oral sex
twice and sexual intercourse at least four times; she simply could not remember by the
time of trial where or when they did so. D.T. did not retract or recant her preliminary
hearing testimony. Except for the number of customers she had on June 1 and 2, 2016,
she did not testify she lied at the preliminary hearing. The only variance in evidence
between the preliminary hearing and the trial was at trial D.T. could not recall where or
when the acts of oral copulation or sexual intercourse took place.
Instructive is People v. Gil (1992) 3 Cal. App. 4th 653, in which the
defendant was convicted of five counts of forcible lewd conduct on two girls under the
age of 14. At trial, one girl testified to incidents of the defendant touching her breasts
and the defendant putting his penis in her vagina, and the other girl testified to acts of the
defendant touching her breasts, putting his finger in her vagina, and putting his penis in
her vagina. (Id. at pp. 655-657.) The defendant testified he had not committed any of the
offenses. On appeal, the defendant argued he was denied notice of the charges because
the evidence adduced at trial involved offenses not shown at the preliminary hearing. He
claimed the inconsistencies about the dates of offenses and other changes in testimony at
trial made the charges different than those shown at the preliminary hearing. (Id. at
p. 657-658.)
In rejecting that argument, the Court of Appeal held the information
charged the defendant with offenses shown by the evidence at the preliminary hearing in
that the evidence at the preliminary hearing clearly supported five counts of lewd conduct
however committed. (People v. Gil, supra, 3 Cal.App.4th at p. 658.) The court
explained: “Inconsistencies and contradictions during the course of thorough
cross-examination of child witnesses at trial is not persuasive of appellant’s contention
that the incidents at trial were completely different from the incidents described at the
33
preliminary hearing. The inconsistencies went to the weight and credibility of the
testimony, not to the question of notice claimed by appellant.” (Id. at p. 659.) The court
found that even if there were inconsistencies, “it is unlikely appellant’s ability to defend
was prejudiced; his defense was not a specific alibi but a denial that molestations
occurred at all.” (Ibid.)
In this case, as in People v. Gil, the variations and inconsistencies between
D.T.’s trial testimony and preliminary hearing testimony did not make the offenses
charged in count 6 and count 7 different from those shown at the preliminary hearing.
Instead, the inconsistencies and variances at most go to the weight and credibility of
D.T.’s trial testimony. We cannot see how Calhoun could have suffered any prejudice
because his defense was, like that of the defendant in People v. Gil, he never committed
the offenses.
The cases relied upon by Calhoun do not support dismissal of count 6 or 7.
Pitts, supra, 223 Cal.App.3d at page 634, involved a 53-count information against one
group of defendants, and a 58-count information against another group of defendants.
The two informations alleged numerous charges of sex abuse against many child victims.
(Ibid.) The Court of Appeal dismissed some of the counts because variances between the
evidence at the preliminary hearing and the evidence at trial denied the defendants an
opportunity to prepare a meaningful defense. (Id. at p. 905.) The court noted that
variances in the time and place at which specific acts occurred were not material. (Id. at
p. 907.) But many counts charged the defendants with conduct for which no evidence
was adduced at the preliminary hearing; in others, the evidence at the preliminary hearing
supported a different count; and in others, evidence was adduced at one defendant’s
preliminary hearing that was not adduced at the preliminary hearings for other
defendants. (Id. at pp. 908-914.) The Court of Appeal noted that for some counts as
charged in an amended information “the specific act and/or actors changed from previous
amendments, and/or the specific act involving specific actors was not shown by evidence
34
adduced at a particular preliminary hearing.” (Id. at p. 907.) Such variances were
material and, consequently, the preliminary hearing transcript did not impart notice
sufficient to satisfy due process. (Id. at pp. 907-908.)
In this case, in stark contrast to Pitts, the evidence at the preliminary
hearing placed Calhoun on notice that, in addition to human trafficking, pimping, and
pandering, he would have to defend charges he orally copulated D.T. once on June 1 or 2,
2016, engaged in sexual intercourse with her at least four times between April 20 and
June 2, 2016, and aided and abetted her in engaging in sex acts with others on June 1
and 2, 2016. The information and amended information charged Calhoun with
committing the acts against D.T. adduced by the evidence at the preliminary hearing.
There were no changes in the specifics or actors from previous charging documents or
from the evidence adduced at the preliminary hearing. Unlike Pitts, here, there could be
no confusion about the actors, since Calhoun and D.T. were the only actors, about the
time frame, which did not change from April 20 to June 2, 2016, or about the charged
sexual acts directly perpetrated against D.T. To the extent there was a variance, Calhoun
has not demonstrated how he might have been misled or suffered prejudice.
In People v. Burnett (1999) 71 Cal. App. 4th 151, 155-156 (Burnett), the
defendant was charged with being a felon in possession of a weapon, which was
specifically alleged to be a .38-caliber revolver. During trial, a new witness described a
second, entirely different incident involving a .357-caliber revolver. (Id. at p. 157.) The
trial court permitted the prosecutor to amend the information to strike the .357-caliber
allegation from the information. (Id. at p. 164.) The prosecutor argued the jury could
convict the defendant based on either incident. (Id. at p. 169.) The jury convicted the
defendant of being a felon in possession. (Id. at p. 156.)
On appeal, the defendant argued his conviction must be reversed because
he was tried for the incident involving possession of the .357-caliber revolver, an offense
not shown by the evidence at the preliminary hearing. (Burnett, supra, 71 Cal.App.4th at
35
p. 164.) The Court of Appeal concluded the defendant could not have been prosecuted or
convicted for possession of the .357-caliber revolver because that incident was separate,
distinct, and not transactionally related to the incident shown by the evidence at the
preliminary hearing. (Id. at p. 178.) The court reversed the conviction because the
defendant’s trial attorney rendered ineffective assistance of counsel by failing to object
when it became clear the jury was going to be asked to convict based either on the
incident that was the subject of the preliminary hearing or on the second incident
described at trial. (Id. at pp. 179-183.)
This case does not present the situation in which a new witness, who did
not testify at the preliminary hearing, testifies at trial about an incident separate, distinct
and transactionally unrelated to the offense shown by the evidence at the preliminary
hearing. Instead, in this case, the victim, D.T., testified at trial to a greater number of
offenses than the number charged. The unanimity instruction ensured the juror’s
agreement as to the facts constituting the offense. (Burnett, supra, 71 Cal.App.4th at
p. 173.)
In Graff, supra, 170 Cal.App.4th at page 349, the Court of Appeal reversed
the defendant’s convictions on two counts of violating section 288, subdivision (c)(1)
(section 288(c)(1)) because the jury was permitted to convict based on charges not
established at the preliminary hearing. The defendant was initially charged with six
counts of violating section 288(c)(1). At the preliminary hearing, the victim testified to
five incidents of lewd conduct committed by the defendant, two of which involved the
defendant watching her masturbate. Because the victim was not certain whether the
masturbation incidents occurred before or after she turned 16 years old, the magistrate
dismissed the two counts that were based on those incidents. (Id. at p. 351 and fn. 7.)
After the preliminary hearing, an information was filed charging the defendant with three
counts of violating section 288(c)(1). (Id. at pp. 350-351.)
36
At trial, the victim testified to the same five incidents of lewd conduct and
was also allowed to testify concerning the masturbation incidents “as indicative of motive
or intent” under Evidence Code section 1101, subdivision (b). (Graff, supra, 170
Cal.App.4th at p. 353.) The victim testified she was 15 years old when the first
masturbation incident occurred, but was unsure of her age when the second incident
occurred. (Id. at p. 354.) In closing argument, defense counsel stated there were “[n]o
charge[s] concerning the masturbation episodes.” (Id. at p. 357.) In rebuttal, the
prosecutor disagreed and argued the defendant could be convicted of “any lewd act that
he committed with [the victim] while she was 14 or 15 years old,” including the
masturbation incidents. (Id. at p. 358.) The jury convicted the defendant of two counts
of violating of section 288(c)(1). (Id. at p. 360.)
The Court of Appeal, reversing, held “[the defendant’s] due process rights
to notice of the charges against him were violated by the prosecution’s decision to go
forward with charges not established at the preliminary hearing.” (Graff, supra, 170
Cal.App.4th at p. 360.) The court concluded the magistrate was correct in ruling the
prosecution failed to present evidence at the preliminary hearing to show the
masturbation incidents fell within the timeframe necessary to establish a section
288(c)(1) violation. (Id. at p. 361.) The prosecution never sought, and the trial court
never granted, an amendment of the information to charge the defendant with violations
of section 288(c) based on the incidents of masturbation. (Id. at p. 362.) Thus, the
defendant was wrongly convicted of offenses not established at the preliminary hearing
or charged in the information. The Court of Appeal concluded the defendant suffered
prejudice from the prosecution’s delay in making its theory known because “[i]n cross-
examining [the victim], defense counsel had no reason to pin down the dates of the
masturbation incidents or to impeach [the victim] with her earlier testimony that she
could not remember when either of the incidents occurred.” (Ibid.)
37
Graff does not help Calhoun. In Graff, the defendant was convicted of
violating section 288(c)(1) based on the masturbation incidents even though the
magistrate had dismissed the counts based on those incidents and the prosecutor had
never amended the information. Here, Calhoun was not convicted of any offense based
on incidents that had formed the basis of counts dismissed by the magistrate after the
preliminary hearing. In addition, unlike the defendant in Graff, Calhoun has not
demonstrated how any variance between the preliminary hearing testimony and the
information or the trial testimony had any effect on the way in which D.T. was
cross-examined.
III.
Venue in Orange County Was Proper.
After the prosecution rested, Calhoun brought an oral motion for judgment
of acquittal under section 1118.1 on the ground that Orange County was an improper
3
venue for counts 4 through 7. He contends the trial court erred by denying the motion.
A. Background
At the preliminary hearing, D.T. testified that on June 1, 2016 she had oral
sex with Calhoun in Santa Ana and had five customers. That testimony was the basis for
establishing venue in Orange County for counts 4 through 7. At trial, D.T. testified she
did not know where Calhoun engaged in oral sex and sexual intercourse with her except
to say it was somewhere in California.
In opposition to Calhoun’s motion for a judgment of acquittal for improper
venue, the prosecutor argued that human trafficking (count 1) was a continuous offense,
3
We refer to the counts as they were numbered and presented at trial, that is, counts 4
and 6 were for lewd and lascivious acts on a child under the age of 14 (§ 288, subd. (a)),
count 5 was for unlawful sexual intercourse (§ 261.5, subd. (d)), and count 7 was for oral
copulation with a child under the age of 14 (§ 288a, subd. (c)(1)).
38
and that the acts alleged in counts 4 through 7 were part of human trafficking. Thus, the
prosecutor argued, all of the counts were connected in their commission. In a written
brief, the prosecutor argued Calhoun’s motion was untimely and should have been made
before the start of trial. If timely, the motion should be denied because venue in Orange
County was proper under section 781 in that the offenses were committed at least in part
in Orange County and because venue was a fact to be established at the preliminary
hearing. At the preliminary hearing, D.T. testified at least one act of sexual intercourse
and one act of oral copulation occurred in Orange County.
Defense counsel argued in response that the matter was governed by
section 784.7, subdivision (a), which governs sex offenses where some are committed in
one county, and some in another, and which allows cross-county filings only upon
written permission of the transferring county and a hearing assuring that the offenses are
properly joined.
The trial court concluded section 781 was the controlling statute. The court
found that D.T. had testified at the preliminary hearing the sexual acts had been
committed in Orange County and her later trial testimony that she did not know where
the acts occurred was not in conflict. D.T.’s uncontradicted preliminary hearing
testimony established venue in Orange County under section 781. The court denied
Calhoun’s motion.
B. Relevant Venue Statutes
Section 777, which sets forth the basic rule of venue for criminal cases,
states: “[E]xcept as otherwise provided by law the jurisdiction of every public offense is
in the competent court within the jurisdictional territory of which it is committed.”
Under section 777, “venue lies in the superior court of the county in which the crime was
committed, and a defendant may be tried there.” (People v. Posey (2004) 32 Cal. 4th 193,
199 (Posey).) Venue is a question of law to be decided by the court prior to trial. (Id. at
p. 201.)
39
When the criminal conduct is committed in more than one county, section
781 sets forth the basic rule. Section 781 states in relevant part: “[W]hen a public
offense is committed in part in one jurisdictional territory and in part in another
jurisdictional territory, or the acts or effects thereof constituting or requisite to the
consummation of the offense occur in two or more jurisdictional territories, the
jurisdiction for the offense is in any competent court within either jurisdictional
territory.” Under section 781, “‘where only a part of a crime has been committed in one
county and the other part or parts have been committed in another, venue lies where only
a part of the crime was done.’” (People v. Thomas (2012) 53 Cal. 4th 1276, 1283.)
Section 784.7 governs venue for multiple violations of certain sex offenses.
Subdivision (a) of section 784.7 states: “If more than one violation of Section 220,
except assault with intent to commit mayhem, 261 [rape], 262 [spousal rape], 264.1 [rape
or genital penetration in concert], 269 [aggravated Sexual assault of a child], 286
[sodomy], 287, 288 [lewd or lascivious conduct with child under 14], 288.5 [continual
sexual abuse of child], 288.7 [sexual acts with a child 10 years or younger], or 289
[forcible sexual penetration] or former Section 288a [oral copulation] occurs in more than
one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses
properly joinable with that offense, is in any jurisdiction where at least one of the
offenses occurred, subject to a hearing, pursuant to Section 954, within the jurisdiction of
the proposed trial. At the section 954 hearing, the prosecution shall present written
evidence that all district attorneys in counties with jurisdiction of the offenses agree to the
venue. Charged offenses from jurisdictions where there is not a written agreement from
the district attorney shall be returned to that jurisdiction.” Section 784.7 governs venue
only if no other statute authorizes trial in a particular jurisdiction. (People v. Aleem
(2006) 144 Cal. App. 4th 1155, 1160.)
Venue in Orange County for counts 1, 2, and 3 was proper under sections
781 and section 784.7, subdivision (c). Section 784.7, subdivision (c) provides, in
40
relevant part: “If more than one violation of Section 236.1 [human trafficking of a
minor], 266h [pimping of a minor under the of 16], or 266i [pandering of a minor under
the age of 16 by procuring] occurs in more than one jurisdictional territory, the
jurisdiction of any of those offenses, and for any offenses properly joinable with that
offense, is in any jurisdiction where at least one of the offenses occurred, subject to a
hearing pursuant to section 954, within the jurisdiction of the proposed trial.”
C. D.T.’s Preliminary Hearing Testimony Established Venue
in Orange County for Counts 4 Through 7.
At the preliminary hearing, D.T. testified she had sexual intercourse and
oral sex with Calhoun in Santa Ana on June 1, 2016. She also testified she caught two
dates that night before getting a bite to eat and caught two or three dates after eating. At
the preliminary hearing, the prosecutor stated count 6 was based on the theory that
Calhoun committed lewd and lascivious acts on D.T. by aiding and abetting those acts of
prostitution in Santa Ana. D.T.’s testimony conferred venue in Orange County over
counts 5, 6, and 7 under section 777 and allowed joinder of count 4. Count 5 (§ 261.5,
subd. (d)) was not subject to section 784.7, subdivision (a). An alternate basis for venue
of count 5 was that it was alleged to have been committed as part of the human
trafficking offense with acts or effects in several counties and therefore venue in Orange
County was proper under sections 781 and 784.7, subdivision (c).
Calhoun agrees Orange County venue was properly established at the
preliminary hearing for counts 4 through 7. He concedes he had no cause to challenge
venue based on the preliminary hearing testimony and he did not challenge venue until
4
after the prosecution rested at trial. He contends, however, that D.T.’s trial testimony
4
The Attorney General argues venue must be challenged before trial or is forfeited. In
People v. Simon (2001) 25 Cal. 4th 1082, 1086-1087, the California Supreme Court
concluded, “the interests of both the accused and the state support a requirement that any
objection to the proposed location of a . . . trial must be specifically raised prior to
commencement of trial, before the defendant is required to undergo the rigors and
41
eliminated the factual basis for Orange County venue over counts 4 through 7 because at
trial D.T. testified she did not know where she orally copulated Calhoun except to say it
was in California.
D.T.’s trial testimony did not divest Orange County of venue for counts 4
through 7. We assume for argument’s sake that trial testimony could divest a court of
venue once venue has been confirmed by evidence at the preliminary hearing. We find it
significant, as did the trial court, that D.T. did not testify she lied at the preliminary
hearing about engaging in oral sex with Calhoun in Santa Ana. She testified at trial she
did not know where that happened. Thus, venue was not premised on false testimony.
The trial court, in which venue decisions are vested (Posey, supra, 32 Cal.4th at p. 201),
reached the same conclusion. As there was no contradiction between D.T.’s preliminary
hearing and trial testimony, and D.T. did not retract her preliminary hearing testimony,
D.T.’s preliminary hearing testimony remained sufficient to support venue under section
777. If, as Calhoun contends, D.T.’s trial testimony were controlling on the issue of
venue, then no county would have venue over counts 4 through 7.
Upholding Orange County venue on counts 4 through 7 comports with the
purposes for the criminal venue statutes identified in People v. Simon, supra, 25 Cal.4th
at page 1095. Calhoun does not contend that Orange County venue caused him
inconvenience or impaired his ability to obtain evidence or secure witnesses. To the
contrary, he was subject to trial on counts 1 through 3 in Orange County regardless of
venue on the other counts. Defense evidence and witnesses were the same for all counts.
Calhoun was arrested in Orange County while engaging in acts of human trafficking,
pimping, and pandering, for which he was prosecuted. Orange County thus bore a
hardship of standing trial in an assertedly improper locale, and before the state incurs the
time and expense of conducting a trial in that county.” Simon did not address the
situation presented here, in which the grounds for challenging venue first appeared during
trial. We address Calhoun’s venue challenge on the merits.
42
reasonable relationship to the criminal offenses, and it cannot be said the prosecution
chose Orange County because it would be more hostile to or burdensome for Calhoun.
The people of Orange County have a right to judge Calhoun on crimes committed here.
Because we conclude D.T.’s preliminary hearing testimony established
venue in Orange County over counts 4 through 7 under sections 777, 781, and 784.7, we
need not address the Attorney General’s arguments that Calhoun forfeited a challenge to
venue, a motion under section 1118.1 was the wrong vehicle for challenging venue, or
that venue for the human trafficking count also established venue over counts 4, 6, and 7.
IV.
The Trial Court Did Not Err by Admitting Evidence of
Text Messages from the Vortex Cell Phone and Messages
Related to Number (xxx) xxx-5542.
Calhoun argues the trial court erred by admitting text messages from the
Vortex cell phone and text messages to and from the cell phone associated with the
number (xxx) xxx-5542. He argues the prosecution failed to authenticate the text
messages as coming from numbers associated with him.
A. Background
Exhibit 19, the Cellebrite report for the Vortex cell phone, identified
incoming and outgoing text messages from July 5, 2016 through November 5, 2016.
Calhoun’s trial counsel did not object to admission of exhibit 19. To avert an ineffective
assistance of counsel claim, we shall address Calhoun’s argument that the trial court erred
in admitting it.
The cell phone associated with the number (xxx) xxx-5542 was never
recovered and so there is no Cellebrite report for it. The Vortex cell phone and the ZTE
cell phone (D.T.’s personal cell at the time D.T. was detained by Hernandez)
communicated with the (xxx) xxx-5542 cell phone. Exhibit 35 is a collection of text
messages to and from number (xxx) xxx-5542. Calhoun’s counsel objected to the
43
admission of any evidence of text messages from the (xxx) xxx-5542 cell phone to the
Vortex cell phone or the ZTE cell phone on the ground the prosecutor failed to lay a
foundation to show the messages from the (xxx) xxx-5542 cell phone were made by
Calhoun.
B. Relevant Law
A writing must be authenticated before it may be admitted into evidence.
(Evid. Code, § 1401; People v. Goldsmith (2014) 59 Cal. 4th 258, 266.) Authentication is
defined as “the introduction of evidence sufficient to sustain a finding that it is the
writing that the proponent of the evidence claims it is” or “the establishment of such facts
by any other means provided by law.” (Evid. Code, § 1400.) The proponent of
documentary evidence has the burden of establishing authenticity and meets that burden
by producing evidence sufficient to sustain a finding the document is what it purports to
be. (People v. Perez (2017) 18 Cal.App.5th 598, 621.) Authenticity may be established
by the contents of the writing, or other means, including circumstantial evidence, and the
author’s testimony is not required. (People v. Valdez (2011) 201 Cal. App. 4th 1429,
1434-1435.)
C. The Text Messages Were Properly Authenticated.
1. Vortex Cell Phone
The prosecution produced sufficient evidence to support a finding that the
text messages related in exhibit 19 (the Cellebrite report for the Vortex cell phone) were
between D.T. and Calhoun. Hernandez’s testimony established the Vortex cell phone
belonged to Calhoun. Hernandez testified that when she stopped Stewart in May 2016
she searched his car and found two cell phones in the center console. D.T. told
Hernandez the phones belonged to Calhoun and the Vortex cell phone was used for text
messages. D.T. said she took the cell phones with her when she left Louie’s house while
Calhoun was away.
44
The evidence also showed that, although the Vortex cell phone belonged to
Calhoun, D.T. used that phone to communicate with him. D.T. told Hernandez that she
used the Vortex cell phone to communicate with Calhoun. In addition, the contacts and
messages reflected in the Cellebrite report establish that D.T. used the Vortex cell phone
to communicate with Calhoun. The Vortex cell phone had a contact for “Daddy” with
Calhoun’s photograph. Exhibit 19 shows the contact for Daddy is associated with the
number (xxx) xxx-5542.
Exhibit 19 shows two outgoing text messages (#83, #188) sent to (xxx)
xxx-5542 that refer to “John,” and other text messages refer to pimping and prostitution.
Incoming text messages from (xxx) xxx-5542 clearly are from the pimp (#28: “Hey wen
u out there don’t text”; #55: “Do u have a condom”; #76: “I got to get you some
condoms, I forgot”). Outgoing text messages to (xxx) xxx-5542 are clearly from the
prostitute (#39: “I got one that has 40”; #48: “I have the money”; #102 “Daddy hows
much long I got to be out here”).
Calhoun argues the Vortex cell phone probably belonged to D.T. Whether
the phone belonged to D.T. or to Calhoun, the significant point is that the prosecution met
its burden of establishing that D.T. used the cell phone to communicate by text message
with Calhoun at the (xxx) xxx-5542 number.
2. Phone No. (xxx) xxx-5542
The prosecution presented sufficient evidence to establish that the
unrecovered phone associated with the number (xxx) xxx-5542 belonged to Calhoun.
There are at least two outgoing messages on the Vortex cell phone to the number (xxx)
xxx-5542 that refer to “John.” Exhibit 35 is an extraction report for messages to or from
(xxx) xxx-5542. The messages listed on exhibit 35 are either to or from “Daddy” and
most refer to pimping and prostitution. Several messages (#11, #45, and #55) sent to
(xxx) xxx-5542 refer to “John.” One message (#20) sent to that number was “Auntie said
for u to call her.” Auntie was the nickname Calhoun used for Louie.
45
Exhibit 34 is the Cellebrite report for D.T.’s personal ZTE cell phone.
Entry number 146 on exhibit 34 is an incoming message dated May 11, 2016 from Daddy
at number (xxx) xxx-5542. The message reads in part, “give me my phones I need my
white [one] I’m not playing.” D.T. told Hernandez the two phones found in the center
console of Stewart’s car were taken from Calhoun. One phone was white. Hernandez
detained D.T. on the night of May 11 or the early morning of May 12, 2016.
V.
Expert Testimony on D.T.’s Statements Made During a
Police Interview and on the Content of Text Messages
Was Admissible or Harmless Error.
Calhoun argues the trial court erred by permitting Hernandez to testify
about statements made by D.T. during her police interview on May 11, 2016 and by
permitting Hernandez and Medina to testify about the content of text messages between
D.T. and Calhoun. He argues the challenged testimony constituted case-specific hearsay
made inadmissible by People v. Sanchez (2016) 63 Cal. 4th 665 (Sanchez) and violated
his Sixth Amendment right to confront and cross-examine witnesses.
The Attorney General argues Calhoun forfeited his confrontation clause
claim by not posing objections specifically on that ground. Calhoun made a general
objection to evidence about text messages and made a hearsay objection to any testimony
about statements made by D.T. to Hernandez. “‘[C]ounsel’s failure to object to claimed
evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue
on appeal.’” (People v. Redd (2010) 48 Cal. 4th 691, 729.) Calhoun never specifically
objected based on Sanchez or the confrontation clause. But to avert an ineffective
assistance of counsel claim, we deem counsel’s objections sufficient to preserve those
claims.
46
A. Crawford v. Washington and Sanchez
The confrontation clause of the Sixth Amendment to the United States
Constitution grants a criminal defendant the right to confront adverse witnesses. (U.S.
Const., 6th Amend.) Admission of testimonial hearsay is therefore barred by the
confrontation clause unless the speaker is unavailable to testify and the accused
previously had the opportunity to cross-examine the speaker, or the accused has forfeited
the right to do so by his or her own wrongdoing. (Crawford v. Washington (2004) 541
U.S. 36, 68.)
In Sanchez, the California Supreme Court concluded the holding in
Crawford applies to testimonial hearsay information concerning a defendant’s gang
affiliation and activity. (Sanchez, supra, 63 Cal.4th at pp. 679-685.) In Sanchez, the
court held (1) an expert witness may not relate as true case-specific facts asserted in
hearsay statements unless they are independently proven and (2) if a prosecution expert
witness seeks to relate testimonial hearsay, there is a violation of the federal
confrontation unless there is a showing of unavailability, the defendant had a prior
opportunity for cross-examination, or forfeited that right by wrongdoing. (Id. at p. 686.)
The California Supreme Court confirmed that an expert may rely on
hearsay in forming an opinion but concluded an expert may not relate case-specific facts
asserted in hearsay statements “unless they are independently proven by competent
evidence or are covered by a hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 686.)
An expert may “testify about more generalized information to help jurors understand the
significance of those case-specific facts. An expert is also allowed to give an opinion
about what those facts may mean.” (Id. at p. 676.) The court in Sanchez explained that
case-specific facts are those of which the expert has no independent knowledge and relate
“to the particular events and participants alleged to have been involved in the case being
tried.” (Ibid.) The expert may render an opinion based on case-specific facts but may not
relate such facts unless they are within the expert’s personal knowledge. (Ibid.)
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The Sanchez court considered the permissible scope of expert testimony
and adopted this rule: “When any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true and accurate to support the
expert’s opinion, the statements are hearsay. It cannot logically be maintained that the
statements are not being admitted for their truth. If the case is one in which a prosecution
expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless
(1) there is a showing of unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at
p. 686, fn. omitted.)
We assess prejudice resulting from the admission of expert testimony in
violation of Sanchez under the standard of Watson, supra, 46 Cal.2d at page 836.
(People v. Flint (2018) 22 Cal.App.5th 983, 1003-1004 (Flint); People v. Jeffrey G.
(2017) 13 Cal.App.5th 501, 510.) The Watson standard applies “even where the expert’s
testimony included multiple statements that were inadmissible under Sanchez.” (Flint,
supra, at p. 1004.) Under the Watson standard, reversal is required only if “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
B. Testimony on D.T.’s Statements Made During the Police
Interview Was Admissible Under the Hearsay Exception for
Prior Consistent Statements.
When D.T. was detained in May 2016, she was taken to a sheriff’s station
where she was interviewed by Hernandez and a sheriff’s deputy. At trial, Hernandez
testified about statements made by D.T. during the interview. The Attorney General does
not dispute the testimony was offered for the truth of the statements made by D.T. but
argues D.T.’s statements fell within the hearsay exception for prior consistent statements.
Evidence Code section 1236 states: “Evidence of a statement previously
made by a witness is not made inadmissible by the hearsay rule if the statement is
48
consistent with his testimony at the hearing and is offered in compliance with
Section 791.” Evidence Code section 791, subdivision (b) allows a prior consistent
statement if “[a]n express or implied charge has been made that his testimony at the
hearing is recently fabricated or is influenced by bias or other improper motive, and the
statement was made before the bias, motive for fabrication, or other improper motive is
alleged to have arisen.”
Calhoun concedes that express and implied charges of fabrication were
made throughout D.T.’s trial testimony. “This broad, implicit charge of fabrication”
allowed the introduction of D.T.’s prior consistent statements. (People v. Kopatz (2015)
61 Cal. 4th 62, 86.) Calhoun contends D.T.’s statements made during the interview were
inconsistent with her trial testimony and D.T. admitted at trial that some statements made
during the interview were false.
We agree with the Attorney General that D.T.’s statements made during the
interview, and related by Hernandez in her testimony, were for the most part consistent
with D.T.’s trial testimony. Most significantly, D.T. told Hernandez and testified at trial
that Calhoun was her pimp, he drove her to several blades to work as a prostitute, she had
been working for Calhoun for several months, and he physically abused her.
Calhoun does not entirely disagree; instead, he identifies four categories of
statements made by D.T. during the interview which he contends either were inconsistent
with her trial testimony or admitted to be false.
(1) Calhoun asserts: “[D.T.] never testified on direct that Mr. Calhoun
believed she was 14 years old. [D.T.] never testified that Mr. Calhoun punched her in the
jaw. [D.T.] never testified that Mr. Calhoun required a trap of $500 to $600 a night and if
she did not make her trap, Mr. Calhoun would hit her. [D.T.] also never testified that Mr.
Calhoun’s cousin Raymond threatened to shoot her up.” This assertion is correct. But, as
the Attorney General points out, there was abundant evidence that on one occasion
Calhoun punched D.T. on the left side of her face, giving her a black eye, and that on
49
another occasion he hit her in the face several times with the back of his hand.
Admission of the other statements was harmless: The evidence established that Calhoun
used violence against D.T., and whether or not Calhoun punched her in the jaw, he did
punch her. Raymond’s threat to shoot D.T. did not implicate Calhoun. Whether or not
Calhoun believed or knew D.T. was 14 years old is immaterial because mistake of fact
about a minor victim’s age is not a defense to human trafficking, pimping a child, or
procuring a child. (§ 236.1, subd. (e); People v. Branch (2010) 184 Cal. App. 4th 516,
521-522.)
(2) Calhoun asserts D.T., at trial, admitted the following statements made
during the police interview were false: Stewart was her boyfriend, she first had sex with
him, he turned her into a prostitute, and she stayed with him when she had nowhere to go.
Stewart was her pimp and told her “the rules” for being a prostitute. Those statements
were inconsistent with D.T.’s trial testimony and should have been excluded. The error
was harmless given the overwhelming evidence that Calhoun committed the charged
offenses. Indeed, the error redounded to his benefit, because the inconsistency
undermined D.T.’s credibility.
(3) Calhoun asserts D.T. was not telling the truth when she told Hernandez
that Calhoun had taken her “multiple times” to the blade in Orange County. At trial, D.T.
testified the first time and only time she went to Orange County was on the night she was
arrested (June 1-2, 2016). Hernandez testified D.T. had said Calhoun drove her to several
blades, including Harbor Boulevard in Orange County, to work as a prostitute. D.T.’s
statement to Hernandez was inconsistent with D.T.’s trial testimony. Error in admitting
evidence of the statement was harmless given the overwhelming evidence that Calhoun
committed the charged offenses. Indeed, the error redounded to his benefit, because the
inconsistency undermined D.T.’s credibility.
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(4) Calhoun asserts D.T. was not telling the truth when she said at the
interview she and Calhoun had had sex several times. He does not provide a citation to
the record for D.T.’s statement to Hernandez. We decline to consider the assertion.
C. Any Sanchez Error Was Harmless.
Calhoun contends the trial court committed Sanchez error and violated his
confrontation clause rights by permitting Hernandez and Medina to testify about the
content of text messages between D.T. and Calhoun. Any conceivable Sanchez error was
harmless because the content of the text messages was independently proven through the
Cellebrite reports and extracts from those reports, which were properly authenticated and
admitted into evidence as exhibits 19, 21-26, and 33-35. (Flint, supra, 22 Cal.App.5th at
p. 1000.)
In addition, as the Attorney General argues, the content of the text
messages between Calhoun and D.T. was admissible under the coconspirator exception to
the hearsay rule, Evidence Code section 1223. Hearsay statements made by
coconspirators are admissible against a party if the offering party presents independent
evidence to establish the prima facie existence of a conspiracy. (People v. Hardy (1992)
2 Cal. 4th 86, 139.) “Once independent proof of a conspiracy has been shown, three
preliminary facts must be established: ‘(1) that the declarant was participating in a
conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the
objective of that conspiracy; and (3) that at the time of the declaration the party against
whom the evidence is offered was participating or would later participate in the
conspiracy.’” (Ibid.)
Sufficient evidence was presented at trial to establish the prima facie
existence of a conspiracy between Calhoun and D.T. A prostitute can conspire with a
pimp; their functions are “interrelated” and one aids and abets the other. (People v.
Ambrose (1986) 183 Cal. App. 3d 136, 139.) Sufficient evidence at trial was presented to
establish the three preliminary facts necessary to make the coconspirator statements
51
admissible. The challenged text messages were by D.T. or Calhoun while he was
pimping her (while participating in the conspiracy), the messages all dealt with pimping
and prostitution (the object of the conspiracy), and Calhoun (the party against whom the
evidence was offered) was participating in pimping when the text messages were sent or
received.
D. There Was No Confrontation Clause Violation.
There was no confrontation clause violation because the text messages were
not testimonial. In determining whether a hearsay statement is testimonial, “the question
is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of
the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.” (Ohio v.
Clark (2015) __ U.S. __ [135 S. Ct. 2173, 2180].) “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.” (Sanchez, supra, 63 Cal.4th at p. 689.)
We question whether the text messages are hearsay and thus even subject to
exclusion under the confrontation clause. We do not need to decide that issue because
the text messages are not in the least bit testimonial. The messages were informal, did
not involve law enforcement, and did not have the primary purpose of creating a
substitute for trial testimony or memorializing facts relating to past criminal history.
VI.
The Trial Court Stayed Execution of Sentence on Counts
2, 3, and 5 Pursuant to Section 654.
Calhoun argues the trial court erred by imposing concurrent sentences on
counts 2, 3, and 5 instead of staying execution of sentence on those counts under section
654. The trial court stayed execution of sentence on those counts. At the sentencing, the
court stated, “stayed 654 of the Penal Code,” as to counts 2, 3, and 5. The court minutes
52
have the entry “stayed pursuant to Penal Code section 654” for the sentence on each of
those counts. The abstract of judgment indicates the sentences on counts 2, 3, and 5 as
being stayed under section 654.
DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
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Filed 8/2/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G055511
v. (Super. Ct. No. 16CF2487)
JOHN WAYNE CALHOUN, ORDER GRANTING REQUEST
FOR PUBLICATION
Defendant and Appellant.
The Office of the District Attorney, Orange County, California, has filed a
request that our opinion, filed on July 9, 2019, be certified for publication. It appears our
opinion meets the standards set forth in California Rules of Court, rule 8.1105(c)(1), (4),
and (6). The request is GRANTED. The opinion is ordered published in the Official
Reports. Respondent’s request for partial publications is DENIED as moot.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
54