Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F06004
CANTIL-SAKAUYE, J.
A jury convicted defendant Brian Corey Draper of two counts of felony unlawful sexual intercourse with a 16 year old more than three years younger than himself (Pen. Code, § 261.5, subd. (c) – counts one and two) and nine counts of pimping (§ 266h, subd. (a) – counts four through twelve). The prosecution had dismissed count thirteen on the first day of trial, and the jury was unable to reach a verdict on count three.
Undesignated statutory references are to the Penal Code.
The court took no action on count three after the jury stated it was deadlocked “[e]ight four” on that count. The clerk’s transcript recounted that the jurors could not reach a verdict on count three but incorrectly recorded, “Defendant acquitted on said charge.” The jury’s inability to reach a verdict does not result in acquittal. The court has discretion to determine there is no reasonable probability of agreement (People v. Harris (2005) 37 Cal.4th 310, 363), which the court did in this case by stating, “All right. We will accept that.” Upon discharge of the jury, the prosecution had the option to dismiss or retry count three. (§§ 1140 & 1141.) Accordingly, on remand the court must entertain the prosecution’s motion and dispose of count three.
The court sentenced defendant to 14 years and eight months in prison: the middle term of two years for count one; a consecutive eight-month term for count two (one-third the middle term); and nine consecutive 16-month terms (one-third the middle term) for counts four through twelve. It also awarded defendant a total of 728 days of presentence credit.
On appeal, defendant argues: (1) the court erred in denying his section 1381 speedy trial motion; (2) he was unlawfully charged with and convicted of nine separate counts of pimping, a crime that consists of a continuous course of conduct; and (3) the abstract of judgment contains an incorrect breakdown of the actual days and conduct credits that make up the 728-day total of presentence credits. We shall vacate seven of defendant’s convictions for pimping. Specifically, defendant’s convictions in counts five and seven through twelve are vacated because the prosecution divided two continuous courses of illegal conduct into nine separate counts, subjecting defendant to multiple convictions for two single offenses of pimping. We will also direct the court on remand to dispose of count three and enter the correct number of actual days and conduct credit in calculating defendant’s presentence credits. We affirm the judgment in all other respects.
FACTUAL BACKGROUND
The victim, L.T., was 19 years old at the time of trial. She had lived in foster care from the time she was 14 years old. With one exception, L.T. found her foster homes unsatisfactory and believed the care givers sheltered her for the money. L.T. ran away from her foster care placements for long periods of time on three occasions.
When L.T. ran away at age 15, she met the 25-year-old defendant through a friend. During that period away from foster care, L.T. stayed with an aunt who was a methamphetamine addict who introduced her to the drug. L.T. also met defendant a second time. Defendant and his friend Jamar tried to convince L.T. that she could make money working as a prostitute. L.T. told them she was not interested. However, she and defendant began dating and lived together at either the Vagabond Inn or Motel Six off Madison Avenue in Sacramento.
Defendant again urged L.T. to become a prostitute, telling her that she needed to make money to help with their expenses. He suggested that if they had enough money, they could move into their own place instead of living in motels. L.T. again refused and fought with defendant about the issue. She felt pressured by defendant and worried that he would leave her on her own again if she did not agree to become a prostitute. After one of the fights, defendant left with all of L.T.’s belongings and did not contact her for a week. L.T. stayed with a friend named Alicia at the Vagabond Inn.
L.T. soon ran short of money. Some of the young women who lived at the Vagabond Inn were prostitutes. They introduced L.T. to Yoshi who said he could help her earn money doing massages or working as a prostitute. After L.T. agreed, Yoshi took pictures of her in her underwear and posted them on the Internet. L.T. immediately received calls from men who wanted sex in exchange for money. She turned her first “trick” the following day and charged $150 per client.
When L.T. saw defendant a few days later, she told him she had started working as a prostitute. Defendant became angry, accusing L.T. of holding out on him and keeping the money for herself. He forced L.T. into his car, drove to an apartment, and strip-searched her for money. Defendant then took L.T.’s cell phone and hit her in the face. L.T. left. When she saw defendant a few days later, he apologized and told her he wanted to continue their relationship. Defendant also urged L.T. to continue working as a prostitute, sharing the money. L.T. agreed.
As before, defendant rented a room for the two of them at the Vagabond Inn or Motel Six. L.T. continued to get calls from the Internet ads. Defendant remained in the room when L.T. received the calls. L.T. explained to the potential customer the acts she was willing to perform, which included only regular intercourse with a condom and excluded the “girlfriend experience” with kissing. She told the men that her price was $150. Once the terms were decided, L.T. told the customer to go to a nearby Denny’s Restaurant and call again. At that point she gave the customer her room number and defendant left the room. After engaging in sexual intercourse, the customer left his money on the dresser while L.T. showered. Defendant stayed outside and watched the door of the room to make sure L.T. was safe. He carried a gun to protect her. Once the customer left, defendant returned to the room and took the money from the dresser. Defendant kept and controlled all the money. L.T. received none of it.
During the following week, L.T. had approximately eight customers. She continued to complain to defendant that she did not like what she was doing. He encouraged L.T. to continue and wanted her to expand her services by allowing customers not to use a condom and providing the “girlfriend experience.” Defendant also gave L.T. methamphetamine to keep her mind off what she was doing.
Defendant became angry with L.T. at the end of the second week because he discovered she had some money. He threw her on the bed and looked through her clothing for more money. Defendant pushed L.T. in the chest, bruising her. Aware of the consequences, but wanting to get away from the situation, L.T. decided she had had enough. On October 30, 2003, she went to a nearby fire station and said she had an outstanding warrant for her arrest. Police arrived, L.T. went to juvenile hall, and the agency placed her in a new foster care home. L.T. talked with detectives about defendant’s role in what she had been doing. The detectives enlisted L.T.’s help in making two pretextual phone calls to defendant which were recorded. In those phone calls, L.T. and defendant talked about their relationship and her prostitution activities.
After spending a couple of weeks at the new foster care home, L.T. ran away and called defendant. She trusted him to take care of her by providing clothing, food and a place to sleep. Although L.T. did not want to work as a prostitute, defendant insisted because they needed the money. Defendant rented another motel room and they continued as before.
Yoshi told defendant and L.T. that they could make more money in Walnut Creek. Defendant purchased Amtrak tickets. Once there, defendant rented a motel room. Potential customers responded to an Internet ad. Thereafter, L.T and defendant followed the same procedure they had used in Sacramento. L.T. was able to charge $180 in Walnut Creek and had approximately five customers per day, which was better than Sacramento.
We take judicial notice that Walnut Creek is located in Contra Costa County. (Evid. Code, §§ 451, subd. (f) & 459.)
After a week or two, Yoshi advised that more money could be had in Concord. Defendant and L.T. moved there for a couple of days. However, L.T. had only one customer. She accepted payment with a laptop computer instead of cash. Yoshi, who was worried about advertising the services of a minor, told L.T. she could use the laptop to place her own ads.
We take judicial notice that Concord is also located in Contra Costa County. (Evid. Code, §§ 451, subd. (f) & 459.)
Thereafter, defendant and L.T. moved to San Jose in hopes of generating more business. Defendant bought the tickets and rented a room at a Days Inn. Using the same procedure as before, L.T. was able to generate only one or two customers.
We take judicial notice that San Jose is located in Santa Clara County. (Evid. Code, §§ 451, subd. (f) & 459.)
L.T. told defendant on February 25, 2004, that she wanted to stop prostituting herself. Upset by the announcement, defendant hit L.T., took all her money, clothing, and laptop computer, and left. L.T. called police in hopes of getting back her belongings. She initially gave a false name, knowing that there were warrants for her arrest. However, she eventually told police her correct name and the details of the prostitution scheme. Police arrested defendant at the Oakland Amtrak station in possession of women’s clothing, a laptop computer and a Tech 9 assault weapon.
Marcie Sanchez testified on behalf of the defense. She identified defendant as her boyfriend and the father of her children. Sanchez stated that she and defendant lived together, uninterrupted, between 2001 and defendant’s arrest in February 2004. She testified defendant slept in their apartment seven nights a week.
Defendant sent Sanchez a letter from jail in April 2006 in which he denied that “these bitches” were part of his plan for their family but were just “some dollars flowing in from one way.” Sanchez denied knowing what defendant had done in the past and what he meant by “these bitches.” She insisted that his plan involved his aspirations for work once he was released from custody.
DISCUSSION
I.
The Section 1381 Motion
Defendant unsuccessfully moved to dismiss the charges against him based on the claim he was denied his right to speedy trial under section 1381. The court ruled that defendant failed to comply with the strict requirements for notifying the district attorney of his place of imprisonment pursuant to section 1381 and failed to demonstrate prejudice from the delay in bringing the case to trial. On appeal, defendant argues he is entitled to reversal because the court improperly weighed the factors relevant to the determination of his motion. We conclude there was no error.
Section 1381 reads in relevant part: “[I]f a charge is filed against a person during the time the person [convicted of a felony] is serving a sentence in any state prison . . . it is hereby made mandatory upon the district attorney of the county in which the charge is filed to bring it to trial within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment or commitment and his or her desire to be brought to trial upon the charge . . . . In the event the action is not brought to trial within the 90 days the court in which the action is pending shall, on motion or suggestion of the district attorney, or of the defendant or person committed to the custody of the Director of Corrections . . . dismiss the charge. The sheriff, custodian, or jailer shall endorse upon the written notice of the defendant’s desire to be brought to trial or for sentencing the cause of commitment, the date of commitment, and the date of release.”
A prisoner must strictly comply with the provisions of section 1381 due to the drastic nature of the sanction the statute imposes on the prosecution. (People v. Gutierrez (1994) 30 Cal.App.4th 105, 111 (Gutierrez).) However, if a defendant does not receive notice to alert him to his rights under section 1381, “‘his failure to request prompt disposition of his case is excused, and the court is then required to determine whether his right to a speedy determination of the matter has been violated by weighing the prejudicial effect of the delay against any justification for the delay. [Citation.]’ [Citation.]” (People v. Martinez (1995) 37 Cal.App.4th 1589, 1596 (Martinez), disapproved on another ground in People v. Lowe (2007) 40 Cal.4th 937, 946 (Lowe).) Once the defendant makes an adequate showing of prejudice, the burden shifts to the prosecution to justify the delay, and “‘the court must balance the harm to defendant against the reasons for the delay in deciding whether dismissal of the prosecution is warranted.’ [Citations.]” (Martinez, supra, at p. 1593; Lowe, supra, at p. 946.) Loss of the opportunity to serve time concurrently is one factor, but not the only factor, to consider in assessing prejudice. (Lowe, supra, at p. 946; Gutierrez, supra, at p. 112.) Actual prejudice also includes “the type shown in traditional speedy trial analysis, such as loss of memory or witnesses.” (Gutierrez, supra, at p. 113.) An appellate court will affirm if the court’s factual finding regarding prejudice is supported by substantial evidence. (Ibid.) The record supports the court’s findings in this case.
Defendant testified at the Evidence Code section 402 hearing on his motion to dismiss. He stated that he was serving a two-and-one-half year sentence at San Quentin State Prison in September 2004. The underlying charge arose from his arrest for possession of an assault weapon at the Amtrak station in Oakland in February 2004. Linda Meyers, a prison counselor, informed defendant that he had a “hold” out of Sacramento County and explained the procedure for requesting a speedy trial on those charges under section 1381. Defendant completed the section 1381 request form and returned it to Meyers for mailing. Meyers signed and returned the original unmailed section 1381 request to defendant within a day or two. She also gave him a document stating that the Sacramento “hold” had been lifted. Defendant had the impression he had nothing to worry about and did not follow up on the section 1381 request. He made no attempt to contact the Sacramento authorities. Defendant was released from San Quentin on March 28, 2005, and arrested on the current charges a week later. He testified he knew nothing about the Sacramento charges prior to that date.
On the question of prejudice, defendant testified that he was unsuccessful in locating several potentially exculpatory witnesses between the time of his release from prison on March 28, 2005, and his arrest on April 5, 2005. Defendant stated that “Alicia,” “Sharmaine,” and “Andrea,” three women that he knew only by their first names, could have testified that defendant did not live with L.T. during the relevant time period. However, defendant admitted he never told the defense investigators about “Alicia” or “Sharmaine” before trial. During the hearing, defendant gave defense counsel the phone number of his girlfriend, Marcie Sanchez, who did testify on his behalf. Defendant stated that had he known about the charges, he “could have got it done and over with already and went on about [his] life.”
The record supports the court’s finding that defendant failed to comply with the requirements of section 1381 and the court’s implied finding there were no grounds to excuse his lack of compliance. Defendant’s discussion with Meyers regarding the Sacramento “hold” provided defendant with notice that something was going on. It was up to him to investigate or to make inquiry as to the nature of the Sacramento hold and to follow up to make sure that the Sacramento District Attorney had not filed charges against him.
The record also supports the court’s finding of no prejudice. Only six months elapsed between September 2004, when Meyers told defendant about the Sacramento “hold,” and defendant’s arrest on the Sacramento charges in early April 2005. Defendant said he attempted to contact “Alicia,” Sharmaine” and “Andrea” during the week between his release from prison and the arrest, that is, before he claimed he knew about the charges involving L.T. Defendant did not tell defense counsel or defense investigators about the potential witnesses before trial. Thus, as the court pointed out, it was unclear whether the three women were, in fact, unavailable. Most importantly, what defendant represented as potentially exculpatory testimony was of negligible probative value. There is nothing in the record to suggest the women defendant named had personal and intimate knowledge of his comings and goings. Defendant’s girlfriend Marcie Sanchez did testify at trial that defendant lived with her during the entire period at issue.
II.
Pimping As A Continuous Course of Conduct
The jury convicted defendant of pimping in counts four through twelve in violation of section 266h, subdivision (b), which reads in relevant part: “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, . . ., or who solicits or receives compensation for soliciting for the person, . . ., is guilty of pimping . . . .” The statutory language “leads to but one conclusion--that the legislative intent was that living or deriving support or maintenance from the earnings of a prostitute or proceeds of her prostitution . . . is an ongoing continuing offense that occurs over a period of time.” (People v. Lewis (1978) 77 Cal.App.3d 455, 462.)
Based on Lewis, defendant contends that the evidence supports conviction of only a single count based on a continuous course of conduct, and he was unlawfully charged with and convicted of nine separate counts. The Attorney General concedes that defendant should not have been convicted of counts eight through eleven, but argues the interruption in the relationship between defendant and L.T. and the geographic changes in location of the prostitution enterprise support defendant’s conviction of four separate counts of pimping. In response, defendant argues that “because the prosecution did not present any evidence to prove [defendant] was not continuing to live off [L.T.’s] prior earnings as a prostitute during this period, it must be assumed the offense of pimping committed over the entire five-month period alleged here constituted a continuing course of conduct.” We conclude the jury properly convicted defendant of two counts of pimping.
The question whether there was an interruption in defendant’s continuing course of conduct turns on the existence of an uninterrupted business relationship between defendant and L.T., as well as defendant’s continued use of L.T.’s prior earnings. Lewis demonstrates the correct application of section 266h. In that case the court reversed three of four counts for pimping, concluding that the record established “but one continuous criminal act committed by defendant between 1971 and 1976.” (Lewis, supra, 77 Cal.App.3d at p. 461.) In that case, although the defendant sent S.T. to work as a prostitute in Alaska in 1975 and Chicago in 1976, the evidence supported “a whole uninterrupted relationship between [S.T.] and defendant over a period of five years during which she daily turned her entire earnings over to him . . . .” (Id. at p. 462, italics added.)
The information in this case alleged nine counts of pimping. However, the only significant interruption in the business relationship between defendant and L.T. occurred between October 30, 2003, when L.T. turned herself in at the fire station and returned to foster care, and late November 2003, when she ran away from her foster home and contacted defendant. During that period of several weeks where L.T. was away from defendant, she described defendant’s activities to police. She also assisted the police in their investigation of defendant by making two pretextual phone calls to defendant which the police recorded. We can infer from the length of the break in the business relationship that defendant spent what little money was left over from L.T.’s work in October.
The information alleged the following dates and locations in counts four through twelve:
There is no merit in the Attorney General’s suggestion that the relocation of L.T.’s prostitution business from Sacramento to Walnut Creek to Concord to San Jose interrupted defendant’s continuous course of criminal conduct. There was no break in the business relationship between defendant and L.T. during February 2004. Defendant was still L.T.’s pimp; he made the business decisions and he collected all the money. The prosecution failed to prove otherwise.
Based on the foregoing, we conclude the jury properly convicted defendant of two counts of pimping: count four, which took place in Sacramento County in October 2003; and count six, which took place in Contra Costa County in February 2004. We vacate defendant’s convictions in counts five, seven, eight, nine, ten, eleven and twelve which were part of the continuous courses of conduct punished in counts four and six.
III.
Presentence Credits
At sentencing, the court properly awarded defendant a total of 728 days of presentence credit, but incorrectly calculated the number of actual days served as 456. Defendant argues, and the Attorney General agrees, that the number of actual days was 486: the 437 days served between defendant’s arrest on April 5, 2004, and his original sentencing date of June 15, 2005, plus 49 additional days served between June 15, 2005, and August 4, 2005, the actual sentencing date. Based on the 486 figure, defendant’s local conduct credits should have been listed as 242.
We shall direct the court to correct the abstract of judgment on remand to show 486 actual days plus 242 days of conduct credit.
DISPOSITION
The convictions for counts five and seven through twelve are vacated and the case remanded for resentencing. The court is directed to: (1) dispose of count three on motion by the prosecution to retry or dismiss; and (2) correct the abstract of judgment to show 486 actual days plus 242 days of conduct credit. The judgment is affirmed in all other respects.
We concur: NICHOLSON, Acting P.J., BUTZ, J.
Count Four: Sacramento County Oct. 1 - Oct. 30, 2003;
Count Five: Sacramento County Oct. 1 - Oct. 30, 2003;
Count Six: Contra Costa County Feb. 1 - Feb. 27, 2004;
Count Seven: Contra Costa County Feb. 1 - Feb. 27, 2004;
Count Eight: Contra Costa County Feb. 1, - Feb. 27, 2004;
Count Nine: Contra Costa County Feb. 1 - Feb. 27, 2004;
Count Ten: Contra Costa County Feb. 1 - Feb. 27, 2004;
Count Eleven: Contra Costa County Feb. 1 - Feb. 27, 2004;
Count Twelve: Santa Clara County Feb. 24 - Feb. 27, 2004.