People v. Stringer CA6

Filed 9/15/20 P. v. Stringer CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H045540
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS151402)
v.
JERRY NICKENS STRINGER, JR.,
Defendant and Appellant.
Defendant Jerry Nickens Stringer, Jr., drove two 17-year-old girls from
Sacramento to Monterey County where they engaged in prostitution. He also took
sexually explicit photographs of the girls and posted the photos on a website to advertise
their prostitution services. A jury convicted defendant of, among other things, trafficking
the minors for a sex act; possessing child pornography; and producing child pornography
for a commercial purpose. Defendant argues that Penal Code section 654 precludes
punishment for both possession and production of child pornography because the
convictions arose from an indivisible course of conduct. We conclude that defendant’s
Penal Code section 654 argument is without merit. We agree with the parties, however,
that the judgment must be reversed and the matter remanded for the limited purpose of
dismissing one of two child pornography possession counts and resentencing defendant
on the remaining counts.
I. TRIAL COURT PROCEEDINGS
The operative information charged defendant with two counts of trafficking a
minor for a sex act (Pen. Code, § 236.1, subd. (c)(1); counts 1 and 2; unspecified
references are to this Code); two counts of pandering a minor over age 16 (§ 266i,
subd. (b)(1); counts 3 and 4); two counts of possessing child pornography (§ 311.11,
subd. (a); counts 5 and 6); one count of producing child pornography for a commercial
purpose (§ 311.4, subd. (b); count 7); two counts of sexually exploiting a minor (§ 311.3,
subd. (a); misdemeanors; counts 8 and 9); and unlawful sexual intercourse (§ 261.5,
subd. (c); count 10). The information also alleged defendant had one prior strike
conviction (§ 1170.12, subd. (b)–(i)).
A. JURY TRIAL TESTIMONY
The two victims were referred to as Jane Doe No. 1 and Jane Doe No. 2 at trial.
Both were 17 years old at the time of the events in June 2015. They were best friends
and were living at Jane Doe No. 1’s father’s house in Sacramento. Jane Doe No. 1
testified that they wanted to travel to Monterey for a few days to visit Jane Doe No. 2’s
family. Jane Doe No. 2 asked a different friend to arrange a ride for them. Neither
victim had ever met defendant before he picked them up in Sacramento. There were two
other passengers (an adult male and a juvenile female), but they are not relevant to the
issues defendant raises on appeal.
Defendant drove the girls to Monterey County, stopping after midnight at a gas
station in Salinas. He asked them how old they were, and they both accurately informed
him that they were 17. Jane Doe No. 1 testified that defendant gave them condoms and
told them to “go out and make money.” Defendant instructed that if they saw a police
officer, they should keep walking and pretend to be talking on the phone. Jane Doe No. 2
testified that defendant told them to charge at least $60 for “car dates,” which meant
having “sex in a car.” Defendant instructed them to always be on top during car dates so
they could watch out for the police. Jane Doe No. 1 testified that she and Jane Doe No. 2
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got out of the car and walked around the area for a few hours. Defendant picked up the
victims around 4:00 or 5:00 a.m. Jane Doe No. 1 testified that when defendant learned
they had not earned any money that night, he told them they needed to “get in the game”
and “make money.”
Defendant drove the girls to an apartment in Seaside. Jane Doe No. 1 testified that
she showered with the bathroom door locked and then went to a bedroom to sleep. Jane
Doe No. 2 showered next, and she testified that defendant had sex with her while she was
in the shower. Jane Doe No. 1 testified that defendant ended up sharing the bed with
them that night.
The next day, defendant dropped off the victims near the same gas station in
Salinas. Jane Doe No. 1 testified that defendant followed them in his car for a period of
time to make sure they were walking. Jane Doe No. 2 had at least one car date that day
that lasted about an hour, during which time Jane Doe No. 1 sat next to the car.
Defendant picked them up again and collected all the money Jane Doe No. 2 had earned.
After driving the girls back to the Seaside apartment, defendant instructed them to
take off their clothes and pose naked for several photographs. (The photographs were
admitted into evidence at trial.) Both victims testified that defendant created accounts for
them on the website “BackPage,” which included their pictures and their phone numbers.
Both testified that they were unable to edit their advertisements on that website because
defendant created them with usernames and passwords that he did not share with them.
Defendant then drove the victims to a motel in Seaside. He rented a room for
them and left. The girls received text messages and phone calls from men who had seen
their BackPage advertisements. Over the course of the night, each had sex with at least
one man in exchange for money. The men visited the motel one at a time, and whichever
victim was not participating would wait in the bathroom during the encounter.
Defendant picked the victims up the next day, and collected all the money they
had earned. Defendant drove them back to the area in Salinas where he had dropped
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them off the preceding two days. Jane Doe No. 1 testified that after defendant dropped
them off and told them to make money, the victims decided they had had enough and
walked to a community college. Once at the college, Jane Doe No. 2 testified that they
hid on tennis courts and called her family friend to pick them up. While they were
waiting for the family friend, defendant pulled up and yelled at them to get into his car.
They walked away from the car, and he drove away. The victims were ultimately picked
up by the family friend.
The police learned about the foregoing after Jane Doe No. 1 disclosed information
during an appointment at Planned Parenthood. When defendant was arrested two months
later following a traffic stop, the memory card of the cell phone in his possession
contained the naked photographs of the victims.
B. VERDICT AND SENTENCING
The jury found defendant guilty of counts 1 through 9. The jury could not reach a
verdict on count 10, and it was ultimately dismissed at the prosecutor’s request.
Defendant waived jury on the prior strike allegation, and the court found it true after
receiving evidence of the prior conviction.
Defendant was initially sentenced in February 2018. The trial court denied a
motion to strike the prior strike (People v. Superior Court (Romero) (1996)
13 Cal.4th 497), and the parties agreed that the punishment for counts 3 and 4 (pandering)
had to be stayed under section 654. Defense counsel argued counts 5 through 9 “should
run concurrent to Counts 1 and 2” because all counts arose “out of the same operative
facts.” The trial court sentenced defendant to 30 years 8 months in prison, calculated as
follows: 24 years for count 1 and a concurrent term of the same length for count 2 (the
upper term, doubled because of the prior strike conviction; §§ 236.1, subd. (c)(1),
1170.12, subd. (c)(1)); 16 months consecutive for count 5 (one-third the mid-term,
doubled because of the prior strike conviction; §§ 311.11, subd. (a), 1170.12,
subd. (c)(1), 1170.1, subd. (a)); 16 months consecutive for count 6 (one-third the mid-
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term, doubled because of the prior strike conviction; §§ 311.11, subd. (a), 1170.12,
subd. (c)(1), 1170.1, subd. (a)); and four years consecutive for count 7 (one-third the mid-
term, doubled because of the prior strike conviction; §§ 311.4, subd. (b), 1170.12,
subd. (c)(1), 1170.1, subd. (a)). There is no record that sentences were imposed for the
misdemeanor counts (counts 8 and 9).
While this appeal was pending, the trial court twice recalled the sentence to
resentence defendant. The operative second amended abstract of judgment reduced
defendant’s sentence to 29 years 4 months. The reduction was the result of the trial court
staying the sentence for count 6 under section 654 in response to a letter from the
Department of Corrections citing People v. Manfredi (2008) 169 Cal.App.4th 622(Manfredi).
II. DISCUSSION
A. CHILD PORNOGRAPHY POSSESSION (COUNTS 5 AND 6)
The parties agree that one of the child pornography possession counts must be
dismissed. Section 311.11, subdivision (a) provides, in relevant part: “Every person who
knowingly possesses ... any matter, ... including ... any ... photograph, ... the production
of which involves the use of a person under 18 years of age, knowing that the matter
depicts a person under 18 years of age personally engaging in or simulating sexual
conduct, ... is guilty of a felony.” Multiple courts have determined that as a matter of
statutory interpretation, “simultaneous possession of multiple child pornography
materials at the same location is chargeable as but one criminal offense” under
section 311.11, subdivision (a). (Manfredi, supra, 169 Cal.App.4th at p. 624; accord
People v. Hertzig (2007) 156 Cal.App.4th 398, 403; People v. Mahoney (2013)
220 Cal.App.4th 781, 796.) We accept the Attorney General’s concession and will
reverse the judgment for the limited purpose of dismissing count 6.
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B. APPLICATION OF SECTION 654 (COUNTS 5 AND 7)
Defendant argues that punishment for counts 5 and 7 (possessing child
pornography and producing child pornography for a commercial purpose, respectively)
must be stayed under section 654 because they were part of the same, indivisible course
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of conduct as that supporting the human trafficking convictions (counts 1 and 2). He
also argues that, even assuming counts 1 and 2 can be separated from counts 5 and 7, the
punishment for count 5 must be stayed because the intent underlying it was indivisible
from the intent underlying count 7. Although defendant did not raise a section 654
objection regarding counts 5 and 7 at sentencing, a sentence that violates section 654 is
unauthorized and therefore reviewable in the first instance on appeal. (People v. Perez
(1979) 23 Cal.3d 545, 549, fn. 3.)
Section 654, subdivision (a) provides: “An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” Section 654 applies “not only
where there was but one act in the ordinary sense, but also where there was a course of
conduct which violated more than one statute but nevertheless constituted an indivisible
transaction.” (People v. Perez, supra, 23 Cal.3d at p. 551.) Whether a course of conduct
is indivisible depends on the intent and objective of the defendant. (Ibid.) Separate
punishment is permissible if the defendant had “multiple or simultaneous objectives,
independent of and not merely incidental to each other.” (People v. Cleveland (2001)
87 Cal.App.4th 263, 267 (Cleveland).) And even offenses that are aimed at a single
intent or objective can be punished separately to the extent they are “temporally separated
in such a way as to afford the defendant opportunity to reflect and to renew his or her
intent before committing the next one, thereby aggravating the violation of public
1
As we have determined count 6 must be dismissed, we do not consider it in
relation to section 654.
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security or policy already undertaken.” (People v. Hicks (2017) 17 Cal.App.5th 496, 514
(Hicks); accord People v. Lopez (2011) 198 Cal.App.4th 698, 717–718; People v.
Petronella (2013) 218 Cal.App.4th 945, 964.) We review these determinations for
substantial evidence. (People v. Powell (2011) 194 Cal.App.4th 1268, 1296.)
1. Possessing Child Pornography Is Separately Punishable
Defendant argues that section 654 bars separate punishment for possessing child
pornography (count 5) because the “purpose of posing the girls and creating the images
was identical to the purpose of possessing the images.” That argument ignores the
substantial temporal separation between the time the images were created and used to
facilitate prostitution, and the time of defendant’s arrest two months later with the
photographs still in his possession (stored on his cell phone). That temporal separation
alone gave defendant ample opportunity to reflect and form new intent, making multiple
punishments permissible. (Hicks, supra, 17 Cal.App.5th at p. 514.) Further, the trial
court could reasonably conclude that defendant retained the images for his own sexual
gratification, an intent and objective distinct from the commercial objective underlying
counts 1 and 7. (Cleveland, supra, 87 Cal.App.4th at p. 267 [multiple punishment
permissible for simultaneous, distinct objectives].) Defendant contends “there was no
evidence that they were ever used for any other purpose.” But evidence of use is not
required for the trial court to infer from their presence on his phone months later that
defendant retained them for his own sexual gratification. The sentence for count 5 does
not violate section 654.
2. Producing Child Pornography Is Separately Punishable
Defendant argues punishment for producing child pornography (count 7) must be
stayed because his intent in taking pornographic photographs was to create content for
website advertisements in order to further his objective of persuading the victims to
engage in prostitution (i.e., the conduct leading to counts 1 and 2). Though we agree that
defendant’s commercial intent and objective underlying the human trafficking counts is
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the same as that behind the child pornography production count, we again conclude that
separate punishment is permissible because of the temporal separation between the
offenses.
Defendant drove the victims from Sacramento to Monterey County and left them
near a gas station in Salinas with condoms and instructions to “make money.” He picked
them up early the next morning and took them to an apartment in Seaside to sleep. He
drove them back to the same area the next day with similar instructions. Jane Doe No. 2
had sex for money with at least one customer that day, and she gave the money to
defendant when he picked her up. At that point, defendant had already committed all
elements necessary to be convicted of human trafficking. Indeed, when addressing in
closing argument the conduct that formed the basis for the human trafficking counts, the
prosecutor argued defendant persuaded the victims to participate in commercial sex acts
not only at the motel in Seaside, but also on the streets in Salinas. It was only after
completing all the elements of section 236.1 that defendant brought the victims to the
Seaside apartment to take the photographs that formed the basis for count 7.
Defendant argues the “human trafficking offenses extended in time before and
after the creation of the photographs and the creation of the photographs was, itself, an
act in furtherance of the human trafficking.” But the trial court could reasonably
conclude that the “car dates” defendant demanded the victims engage in on the streets of
Salinas were distinct from producing promotional photographs and renting a motel room
to facilitate organized prostitution. The period of time between dropping off the victims
in Salinas and picking them up to be photographed and driven to the motel provided
ample opportunity for defendant to reflect on and renew his intent, which aggravated the
“violation of public security or policy already undertaken.” (Hicks, supra,
17 Cal.App.5th at p. 514.) The sentence for count 7 does not violate section 654.
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III. DISPOSITION
The judgment is reversed and the matter is remanded with instructions to dismiss
count 6 and resentence defendant on the remaining counts.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Danner, J.
H045540 - The People v. Stringer