Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08CF3451, Richard W. Stanford, Jr., Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Kaycie Tamaia Brown appeals from her conviction for pandering in violation of Penal Code section 266i, subdivision (a)(1). She challenges the sufficiency of the evidence to support that specific violation of the pandering statute, and contends the court erred by instructing the jury about two distinct violations of the pandering statute, when she had been charged with only one. Additionally, Brown asserts the court erred in refusing to give the jury a “unanimity instruction, ” requiring them to agree unanimously that Brown had committed one the two variations of pandering they had been instructed about.
All further statutory references are to the Penal Code.
The Attorney General acknowledges the court erred by allowing the prosecutor to argue that Brown committed a variation of pandering which was not charged in the information. However, he contends Brown waived the error by failing to object to the instruction at the time it was given. We find no waiver, as an uninvited error in jury instructions, which affects the substantial rights of the defendant, can be raised for the first time on appeal. It is difficult to conceive of an error that affects the substantial rights of the defendant more than one which allows the jury to find her guilty of a crime not charged. We are also unpersuaded by the Attorney General’s contention that the error was not prejudicial, because “substantial reasons exist to find that the verdict was based on a legally valid theory.” In the circumstances of this case, there is simply no way to tell which pandering charge was actually adopted by the jury. Moreover, if we had to guess, we would begin our analysis by noting it was the uncharged version of the crime which was the only one actually addressed by the prosecutor in his closing argument.
In light of the instructional error, we have no alternative but to reverse the judgment. Hence, we need not address the contention that the court further erred by refusing to give a unanimity instruction.
FACTS
On November 20, 2008, Officer Jose Gonzalez of the Santa Ana Police Department was working undercover. He pulled into the parking lot of a fast food restaurant at the corner of Harbor and Hazard Boulevards, a location known for prostitution, and parked his car. A blue car, containing three women, pulled into the space next to him. Gonzalez noticed Brown, sitting in the front passenger seat of the blue car, was talking on a cell phone. She was telling the person on the phone to obtain a hotel room for her, because the City of Santa Ana makes it difficult for “ho’s” to get a hotel room, and consequently her manner of dress would make it difficult for her to get one herself.
Gonzalez then heard the woman in the back seat, Angel Vasquez, ask “what am I supposed to do?” Brown told her all she had to do was stand in the parking lot and guys would come to her. She should then ask a guy what he wanted, and when he told her, she would quote him a price. And if she didn’t like the look of the guy, or what he said, all she had to do was walk away.
Gonzalez acknowledged he did not remember the women’s conversation word-for-word, and was instead relating its substance.
Brown then asked Gonzalez if he wanted “a date, ” and he said yes. She asked him how much money he had, and when he told her $80, she told him that “for $80, Angel will either perform oral sex for you or can have sexual intercourse with her.” Brown and Vasquez then got out of the car. As they were standing next to the car, Gonzalez asked how much for both women, and Brown replied $200. She explained that for that amount, both she and Vasquez would perform oral sex, and Vasquez would have intercourse with him. Gonzalez questioned whether Vasquez was old enough, and she told him she was 21.
Upon further questioning, Gonzalez acknowledged that Brown actually characterized his options using more profane language.
Brown told Gonzalez she had a room on Bristol Street, and all he had to do was follow the blue car (driven by Brown’s sister) to get there. At that point, Vasquez got back into the blue car, and Brown got into Gonzalez’ car with him, and they departed the parking lot. Gonzalez signaled to other undercover officers nearby that an arrest should be made, and conversed with Brown until the uniformed officers who were to make the arrest were able to catch up to his car.
During their conversation in the car, Gonzalez commented that Vasquez seemed nervous, and Brown assured him she would be fine, and then explained it was her (Brown’s) job to make sure Vasquez took care of him and he should not worry. She said Vasquez was “new, ” and that the reason she had agreed to also participate in the sex acts with Gonzalez was to ensure that he was satisfied. Gonzalez asked Brown who he was supposed to give the money to, and she responded that he should pay her, and she would make sure Vasquez got paid for the services she performed.
Brown told Gonzalez she had five other girls besides Vasquez, and if he was interested in contacting her for sexual services on another day, she would give him her phone number. She then wrote down the name “Allure” and a phone number on a piece of paper and gave it to Gonzalez. Brown also explained that she personally engaged in prostitution only occasionally, and that her main job was to watch over her girls.
Shortly thereafter, the other officers caught up to Gonzalez’ car, performed a traffic stop, and Brown was arrested.
Brown was charged with a single count of pandering in violation of section 266i, subdivision (a)(1), which states that a person is guilty of pandering when he or she “[p]rocures another person for the purpose of prostitution.” However, at trial, the prosecutor essentially argued that Brown was guilty of the crime of pandering as defined in subdivision (a)(2) of the statute, which provides that a person is guilty of pandering when he or she “[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute.” The prosecutor explicitly invited the jury to find Brown guilty under either of her “two alternate theories.”
Technically, both of the prosecutor’s two “theories” were closer to a violation of subdivision (a)(2) than of subdivision (a)(1), the specific “procuring” crime charged in this case. As she explained, the first theory “is [that] the defendant persuaded Angel... to be a prostitute. That’s one theory. The other theory is that the defendant used promises to encourage Angel... to become a prostitute.” At another point in her argument, the prosecutor characterized the first theory as being based upon “the fact that the defendant did, in fact, persuade Angel... to become a prostitute, ” while her “alternative theory [is] that the defendant made promises to Angel... in order to encourage her to become a prostitute.” At no point did the prosecutor even mention “procuring.”
Moreover, the court expressly instructed the jury that the crime of pandering was established in this case if the prosecutor proved either “number one, that the defendant persuaded or procured Angel... to be a prostitute; or number two, that the defendant used promises or any device or scheme to cause or persuade or encourage or induce Angel... to become a prostitute.”
Brown requested that the court give the jury a “unanimity” instruction, requiring them to reach a unanimous agreement on one or the other version of pandering included in the instructions, but the court refused. The jury then found Brown guilty of pandering, but without specifying whether it had concluded she “procured” Vasquez (the § 266i[, subd.] (a)(1) violation charged in the information), or that she had caused, induced or persuaded Vasquez to “become a prostitute, ” as prohibited in the uncharged subdivision (a)(2) of section 266(i).
I
Section 266i, subdivision (a) defines the crime of “pandering” as including several distinct factual scenarios. Specifically, the statute provides in pertinent part that: “any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: [¶] (1) Procures another person for the purpose of prostitution. [¶] (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute. [¶] (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. [¶] (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. [¶] (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. [¶] (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution.” (Italics added.)
As explained in People v. Lax (1971) 20 Cal.App.3d 481, 486, “[t]he subdivisions of the... statute do not state different offenses but merely define the different circumstances under which the crime of pandering may be committed.” (Italics added.)
According to the complaint, the specific type of pandering charged in this case was a “violation of [s]ection 266i[, subdivision] (a) (1)... (pandering by procuring). The complaint further alleged that Brown “did unlawfully procure Angel... for the purpose of prostitution.”
Brown’s first contention is there was insufficient evidence in the record to show that she “procured” Vasquez, as prohibited by subdivision (a)(1) of section 266i. According to Brown, she cannot have “procured” Vasquez, because Vasquez “was already right there on the spot, ” when the acts of prostitution were agreed to with Gonzalez, and because there was “no credible evidence that Ms. Brown encouraged Ms. Vasquez to engage in an act of prostitution.” But the first point simply ignores the evidence that it was Brown who was responsible for Vasquez being “right there on the spot, ” because she (along with her sister, the driver) brought Vasquez to the parking lot – a popular spot to for prostitutes to generate business – where Gonzalez was working under cover. As for the second point, “credibility” is an issue for the jury, not the Court of Appeal, but there is clearly substantial evidence that upon their arrival in the parking lot, Brown gave Vasquez explicit instructions as to how she should comport herself to obtain customers for anticipated acts of prostitution, and then she personally negotiated the terms under which Vasquez would engage in such acts with Gonzalez. It would be difficult to conceive of how one might do more to “encourage” another to engage in prostitution.
Although section 266i, subdivision (a)(1), does not explicitly define what constitutes “procuring, ” and Brown makes no effort in her brief to provide any authority defining the term, we note that section 266j, entitled “Procurement of child under age 16 for lewd or lascivious acts; punishment, ” specifies that a person commits that procurement crime when he or she “intentionally gives, transports, provides, or makes available, or... offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in [s]ection 288, or... causes, induces, or persuades a child under the age of 16 to engage in such an act with another person....”
Applying that definition (absent the references to the age of the procured person, and substituting “prostitution” for “lewd and lascivious acts”), it is clear the evidence was sufficient to demonstrate Brown “procured” Vasquez for purposes of prostitution. She transported Vasquez to the parking lot which was a popular spot for prostitution activity, and then explicitly made her available to Gonzalez for that purpose. Consequently, we reject Brown’s contention the evidence introduced in this case was insufficient to support a conviction for the charged crime of pandering by procuring under section 266i, subdivision (a)(1).
II
Brown next argues the court erred by instructing the jury it could find her guilty of pandering based upon one of two scenarios: (1) that Brown “procured” Vasquez to be a prostitute, which is what is prohibited by subdivision (a)(1) of section 266i; or (2) that Brown used promises or any device or scheme to cause, encourage or induce Vasquez to become a prostitute, ” which is what is prohibited by subdivision (a)(2) of section 266i. The problem, as Brown points out, is that she was charged specifically with a violation of subdivision (a)(1) of section 266i, and not charged with a violation of subdivision (a)(2).
The Attorney General properly concedes this was error, and we consequently need not belabor the point. However, the Attorney General also asserts the error was waived, because Brown did not object to the instruction in the trial court. We cannot agree. As Brown correctly points out, an instructional error may be raised for the first time on appeal if it affects the defendant’s substantial rights.
As set forth in section 1259, “[u]pon an appeal taken by the defendant, the appellate court may.... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” “In this regard, ‘[t]he cases equate “substantial rights” with reversible error’ under the test stated in People v. Watson (1956) 46 Cal.2d 818.... (People v. Arredondo (1975) 52 Cal.App.3d 973, 978....)” (People v. Felix (2008) 160 Cal.App.4th 849, 857.)
It is difficult to conceive of an error which would affect the defendant’s substantial rights – and undermine due process – more than an instruction which invites the jury to convict her of a factually different crime than the one charged. Thus, an error of such magnitude is not waived by the failure to raise it in the trial court. (People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 [a claim that an “instruction... violated [defendant’s] right to due process of law... is not of the type that must be preserved by objection.”].) There was no waiver.
III
The Attorney General next argues that even if the conceded instructional error was not waived, no reversal is warranted because the error was not prejudicial. To his credit, the Attorney General acknowledges the specter of prejudice is substantial; going so far as to characterize it as “a close call” in his brief. However, that concession alone essentially dooms the claim, because the error here amounted to a due process violation, and thus the Attorney General can only avoid reversal by demonstrating it was “harmless beyond a reasonable doubt.” (People v. Scheller (2006) 136 Cal.App.4th 1143, 1152.) “A close call” is not one that is beyond reasonable doubt.
In any event, we find the harmless error assertion unpersuasive under any standard. The Attorney General theorizes it is more likely the jury convicted Brown of pandering in violation of subdivision (a)(1) of section 266i – the subdivision charged in the complaint – because that is a “broader and simpler” version of the crime than the version set forth in subdivision (a)(2) of section 266i.
There are two significant flaws in the Attorney General’s argument. First, we find nothing significantly more complex in a charge of pandering pursuant to subdivision (a)(2) of section 266i, than in one pursuant to subdivision (a)(1) of the statute. The former has more words, but it boils down to a fairly simple idea: defendant persuaded or induced another person to “become a prostitute.” By contrast, subdivision (a)(1) – the pandering crime actually charged in this case – contains fewer words, but the key word, “procures, ” is likely a less familiar one to jurors. Consequently, we cannot agree that a violation of subdivision (a)(1) of section 266i would be significantly simpler for jurors to comprehend than a violation of subdivision (a)(2) of that statute would be.
The second, and more significant, flaw in the Attorney General’s contention is his failure to acknowledge that the prosecutor in this case actually focused his closing argument exclusively on the facts which demonstrated a violation of the uncharged subdivision (a)(2) of section 266i – the theory that Brown persuaded or induced Vasquez to become a prostitute – while ignoring the charged allegation of “procuring” in violation of subdivision (a)(1). Indeed, the prosecutor never spoke the word “procuring” in his closing argument. Under these circumstances, we certainly could not presume the jury chose to focus its deliberations on the “procuring” charge alleged, rather than the “persuading or inducing another person to become a prostitute” charge which was not alleged.
Finally, the Attorney General suggests the instructional error should be viewed as non prejudicial “in light of the strength of the evidence of the properly charged crime.” And indeed, as we have already noted, there was certainly sufficient evidence to support a conviction on the “procuring” charge under subdivision (a)(1) of section 266i. However, the fact the jury could have convicted on the proper crime does by any means establish it did, and does not change the fact that crime was never charged.
Because the Attorney General has failed to demonstrate the instructional error was not prejudicial in this case, we have no choice but to reverse the judgment. In light of that determination, we need not reach the issue of whether the court further erred in refusing the unanimity instruction.
DISPOSITION
The judgment is reversed.
WE CONCUR: O’LEARY, J., MOORE, J.