Opinion
A126481
11-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JERRY LIKAERIE GRAHAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C159324B)
I. INTRODUCTION
Appellant Jerry Likaerie Graham and a friend picked up a prostitute from a street corner and took her to a motel in a different city. At the motel, appellant hit the victim, took the money she had been given in anticipation of her services, told her she had to choose him or his friend as her pimp, and ordered her to orally copulate his friend. The victim escaped, but appellant tracked her down several days later, and threatened her life if she testified against him.
Appellant was charged with kidnapping for extortion (aggravated kidnapping); the property alleged to have been the object of the extortion was "the use of the female body for financial gain." He was convicted on that charge, and also on charges of human trafficking, forcible oral copulation in concert, criminal threats, and dissuading a witness by means of force or threat. On appeal, he argues that his aggravated kidnapping conviction must be reversed on several grounds, including that the conduct charged is covered by specific statutes carrying lesser penalties. We agree that the charged conduct is covered by a statute making it a crime to take a person for prostitution, and accordingly reverse the aggravated kidnapping conviction.
Appellant also argues that: (1) his right to confrontation was violated by the trial court's restrictions on his counsel's cross-examination of his friend and former codefendant, who entered into a plea bargain and testified against him; (2) his convictions for forcible oral copulation in concert and human trafficking must be reversed due to the trial court's failure to instruct on lesser included offenses; and (3) the trial court erred in denying his motion to discharge and replace his appointed counsel. We reject all of these additional contentions, and affirm appellant's conviction on the remaining counts. Due to the reversal of appellant's conviction on the aggravated kidnapping count, we remand for resentencing.
II. FACTS AND PROCEDURAL BACKGROUND
A. Events of June 4, 2008
During the evening of June 4, 2008, an 18-year-old woman, whom we will call A.L., was working as a prostitute at the corner of San Pablo and Brockhurst in Oakland, near the Emeryville border. A.L. did not have a pimp, though she was in the habit of giving the money she earned to her boyfriend for safekeeping until she was done working for the day.
Around 8:45 p.m. that evening, a car stopped just around the corner from where A.L. was standing. The occupants signaled her, and she approached and saw that the car held two men (later identified as appellant and Gregory Eaton) whom she had never seen before. Appellant was in the passenger seat. He asked A.L. if she was "dating" (street slang for prostitution), and when she responded that she was, he inquired what she would charge to orally copulate him. She responded that the price would be $30. A.L. agreed to get in the car and accompany appellant and Eaton to a room "on the other side of San Pablo," which A.L. understood to mean somewhere near San Pablo Avenue in either Oakland or Emeryville. A.L. would not have agreed to leave the Oakland/Emeryville area, because that was her "comfort zone."
After A.L. got in the car, however, Eaton drove toward the freeway. At that point, A.L. became afraid, started to shake and sweat, and asked the men to let her out of the car. They told her to calm down, and said they were not going to do anything to her, but just wanted to "date" her. A little while later, appellant told A.L. to put her head down, explaining that he and Eaton wanted to make sure she did not have someone following them who might rob them. A.L. complied, although that meant she could no longer see where the men were taking her. Appellant and Eaton gave A.L. some marijuana to help her calm down. During the car trip, both men touched A.L. on her legs; appellant told her she was "thick and pretty," and Eaton told her he wanted her to orally copulate him as well. She agreed to do so, for another $30.
According to Eaton, he and appellant wanted to persuade A.L. to let one of them become her pimp, and tricked her into entering the car for that purpose. Eaton denied, however, that the men planned to force A.L. to work for them.
By the time the car stopped at a motel, A.L. did not know what city she was in. She later learned that she had been taken to Richmond. She was frightened and wanted to leave, but she stayed because she needed to make money. Appellant and Eaton took A.L. into a motel room. Once they were inside, appellant gave A.L. the money she had asked for, which she put in her bra. A.L. then asked the men which one wanted to go first.
During trial, the parties stipulated to the identity and location of the motel, which was on San Pablo Avenue in Richmond.
Eaton said he wanted to go first, and asked appellant if he intended to wait in the car. Appellant responded by locking the door and saying, "To be honest with you, I'm not going anywhere and neither is this bitch either." At that point, A.L. panicked and tried to leave the room, but appellant pushed her to the floor. Appellant reached into A.L.'s bra, took back the money he had given her, told her to remove her clothing, slapped and pushed her, and yelled at her, telling her she was "fucking with real pimping now." A.L. tried to defend herself at first, but then decided to cooperate, and undressed. Once she had done so, appellant pushed her to the floor and yelled into her face for about five minutes, and then yanked her up and kept yelling. This treatment made A.L. feel dehumanized.
While appellant was abusing A.L. in this manner, Eaton went through her purse. When he showed appellant a box cutter he found in it, appellant told A.L. that if she had tried to use it, she "would have got [her] ass blasted." A.L. also had a cell phone with her, which belonged to her boyfriend. After it rang twice, appellant answered it. The call was from A.L.'s boyfriend's mother; appellant permitted A.L. to speak to her, but A.L. did not say anything about her situation, because she was afraid appellant would hit her again.
After that, the cell phone rang again, this time with a call from A.L.'s boyfriend. Appellant answered, and told the boyfriend, "If you want your bitch back, you have got to pay," but then added, "No, never mind. This bitch owe[s] me." Appellant then put the phone to A.L.'s ear, and she heard her boyfriend say, "Fuck that bitch, bring me my phone." Appellant pushed A.L. around the room again, taunting her about her boyfriend's apparent lack of concern for her. A.L., still naked, was terrified, and unsure if she was going to be killed.
Eaton reiterated his request for oral copulation from A.L., and appellant pulled her toward Eaton, pushed her to her knees, and ordered her to comply with Eaton's request. A.L. did so for a few minutes, hoping that the sooner she cooperated, the sooner the ordeal would end. After two or three minutes, however, appellant then pulled her away, telling her that he was treating her as he did because she did not know how to behave as a prostitute should, and he wanted to teach her. Appellant then demanded that A.L. choose between himself and Eaton to be her pimp; A.L. chose Eaton, as the apparent lesser of two evils, because he had not hit her, yelled at her, or demeaned her.
After that, Eaton told A.L. to put her clothes on, and they all left the motel room. On the way to the car, A.L. saw a store across the street that looked open, and tried to run toward it. Appellant grabbed her shirt, but let go when A.L. began to scream. The store turned out to be closed, so A.L. continued to run along San Pablo Avenue, screaming and waving her arms. After a few minutes, at about 9:33 p.m., she attracted the attention of a Richmond police officer, Virgil Thomas, who was passing by in his patrol car. Appellant ran away as the police car approached A.L.
A.L. told Thomas that she had been kidnapped, and pointed toward appellant as one of her abductors. She was crying uncontrollably, and very fearful, but did not appear to have been physically injured. After calling in other officers to try to apprehend appellant, Thomas drove A.L. back toward the motel. As they arrived, A.L. spotted Eaton driving past, and identified him to Thomas as one of the kidnappers. Eaton was arrested shortly thereafter.
B. Events of June 12, 2008
By June 12, 2008, A.L. was back on the streets of Oakland working as a prostitute again. That day, she was approached by another prostitute, a woman she had never seen before, who told A.L. she needed a second prostitute to join her in a "double date." A.L. agreed to participate, and accompanied the other woman to a nearby motel. When A.L. and the other woman entered the room, no one was there, but about five minutes later, appellant arrived.
Upon entering the motel room, appellant said to A.L., "Yeah, [b]itch, I bet you thought you wasn't never [sic] gonna see me again." A.L. hit him in the face, and he hit her back, giving her a black eye. Appellant pinned A.L. on the bed, and the other prostitute slapped A.L., but appellant told her to stop.
Appellant told A.L. to strip, and she began to comply, but after she took off her shorts, she was able to persuade him to return them and let her remain clothed. He told her, "Bitch, you owe me," and slapped her about 15 times when she disagreed. Appellant told A.L. she could not go home until Eaton was released from jail. Appellant directed the other prostitute to leave and "go back out on the track," and she did so. Appellant then told A.L. that she could not go anywhere until he was sure she would not "go to court." When she agreed not to do so, he did not believe her, and angrily informed her that the only way he could be sure would be to keep her or kill her.
After some further conversation, appellant used a speaker phone to call someone he told A.L. was Eaton's mother, and then someone he said was Eaton's attorney. Appellant told A.L. to inform each of the people he called that she had been lying when she told the police she had been kidnapped, and that she would not testify against Eaton. A.L. did as appellant directed, because she was scared, and hoped appellant would let her go if she cooperated.
Finally, appellant left, taking A.L.'s shorts with him in an effort to ensure that she would remain in the motel room while he was gone. When the other prostitute returned to the room with a man about two minutes later, A.L. grabbed her purse and ran. Appellant saw A.L. pass the motel office and ran after her, waving her shorts and telling her she did not have to run. A.L. managed to grab her shorts, jumped into the back of a passing truck, and then left town as soon as she was able to do so.
C. Criminal Proceedings
Appellant and Eaton were jointly charged by information, based on the events of June 4, 2008, with human trafficking (Pen. Code, § 236.1, subd. (a) ); forcible oral copulation in concert (§ 288a, subd. (d)); and kidnapping to commit another crime (to wit, forcible oral copulation) (§ 209, subd. (b)(1) (§ 209(b)(1)). As to the forcible oral copulation charge, the information also charged, as an enhancement, that A.L. was kidnapped, and that the substantial movement of the victim increased the risk of harm to her above that inherent in the offense. (§ 667.61, subd. (d)(2).) In the same information, appellant alone was charged, based on the events of June 12, 2008, with criminal threats (§ 422) and dissuading a witness by means of force or threat (§ 136.1, subd. (c)(1)).
All further statutory references are to the Penal Code unless otherwise noted.
We will refer to kidnapping for the purpose of committing another crime, as defined in section 209, as aggravated kidnapping. We will refer to the crime charged as the purpose of the aggravated kidnapping as the target crime.
Just prior to trial, on August 10, 2009, Eaton accepted a plea offer under which he pleaded guilty to kidnapping, false imprisonment, and human trafficking, and agreed to testify against appellant. Shortly before the start of jury selection, on August 13, 2009, the trial court permitted the prosecution, over appellant's objection, to file an amended information against appellant alone.
The amended information pleaded the following charges: count one, kidnapping for ransom or extortion (§ 209, subd. (a) (§ 209(a)); count two, human trafficking (§ 236.1, subd. (a)); count three, forcible oral copulation in concert (§ 288a, subd. (d)), with the previously charged enhancement allegation of increased risk due to kidnapping (§ 667.61, subd. (d)(2)); count four, criminal threats (§ 422); and count five, dissuading a witness by means of force or threat (§ 136.1, subd. (c)(1)). Thus, the substantive change effected by the amendment was to change the target crime in the aggravated kidnapping count from forcible oral copulation (§ 209(b)(1)) to extortion (§ 209(a)). Specifically, the amended information charged that appellant kidnapped A.L. "with the intent to hold and detain, and . . . did hold and detain [A.L.] for ransom, reward, extortion, and to exact from [A.L.] money and other valuable things, to wit: use of the female body for financial gain." (Capitalization omitted.)
The jury found appellant guilty of all of the charged offenses, but returned a not true finding as to the enhancement allegation. The trial court sentenced appellant to a term of 11 years to life in prison for aggravated kidnapping, plus a consecutive sentence of 8 years in prison for forcible oral copulation in concert and dissuading a witness.This timely appeal ensued.
The trial court stayed the sentences on the human trafficking and criminal threats counts pursuant to section 654.
III. DISCUSSION
A. Aggravated Kidnapping Charge
As already noted, the prosecution amended the information just prior to trial to remove the charge of aggravated kidnapping with the target crime of forcible oral copulation, under section 209(b)(1), and substitute a charge of aggravated kidnapping under section 209(a), with the target crime of "ransom, reward, extortion, and to exact from [A.L.] money and other valuable things, to wit: use of the female body for financial gain." (Capitalization omitted.) Essentially, the prosecution's theory was that appellant's aim in kidnapping A.L. was to extort her consent to use her body for prostitution in order to obtain money for appellant.
Appellant challenges his conviction on this count on several grounds, including the "special over general" doctrine, also referred to as the Williamson rule, after the California Supreme Court's decision in In re Williamson (1954) 43 Cal.2d 651. Under the Williamson rule, if a course of conduct is criminalized both by a general statute and by a special statute, the court infers that the Legislature intended that course of conduct to be prosecuted exclusively under the special statute. (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy).)
As our Supreme Court has recently explained, the Williamson rule means that "[i]n effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.] 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and "requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision. . . ." [Citation.]' [Citation.]" (Murphy, supra, 52 Cal.4th at p. 86.)
"Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.]" (Murphy, supra, 52 Cal.4th at p. 86.) "[I]f the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely." (Id. at p. 87.) "However, that the general statute contains an element not within the special statute does not necessarily mean that the Williamson rule does not apply. 'It is not correct to assume that the [Williamson] rule is inapplicable whenever the general statute contains an element not found within the four corners of the "special" law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the "special" statute will necessarily or commonly result in a violation of the "general" statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.' [Citation.]" (Ibid., italics omitted.)
In the present case, appellant argues that the Williamson rule requires the reversal of his conviction for aggravated kidnapping based on two "special" statutes: sections 236.1 (human trafficking) and 266a (abduction for prostitution). Respondent contends that neither of these statutes precluded appellant's prosecution under section 209(a), both because section 209(a) contains an additional element, and because conduct violating the special statutes would not commonly or necessarily violate section 209(a).
1. Section 236.1 (Human Trafficking)
Section 236.1, subdivision (a), provides that "[a]ny person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of [specified statutes covering prostitution, child pornography, and extortion], or to obtain forced labor or services, is guilty of human trafficking." Obviously, there is a considerable overlap between the conduct proscribed by section 236.1 and the course of conduct that resulted in appellant's conviction under section 209(a), which accounts for the trial court's decision to stay appellant's sentence on the section 236.1 count.
Appellant argues that under the Williamson rule, section 236.1 precludes his conviction under section 209(a). However, the bill by which the Legislature enacted section 236.1 in 2005 included an uncodified proviso that "Nothing in this act shall be construed as prohibiting or precluding prosecution under any other provision of law or to prevent punishment pursuant to any other provision of law that imposes a greater or more severe punishment than provided for in this act." (Stats. 2005, ch. 240, § 13, p. 2526.) The purpose behind the Williamson rule is to implement the Legislature's intent, so it is self-evident that when the Legislature expresses an intent that a specific statute not preclude prosecution under a general statute with a greater penalty, as it has done with regard to section 236.1, the Williamson rule simply does not apply. Accordingly, the possibility that appellant's course of conduct in this case could—and did—result in his being prosecuted and convicted under section 236.1 does not affect the validity of his conviction under section 209(a).
2. Section 266a (Abduction for Prostitution)
Section 266a provides that "Every person who, within this state, takes any person against his or her will and without his or her consent, or with his or her consent procured by fraudulent inducement or misrepresentation, for the purpose of prostitution, as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000)." The only published authority applying section 266a is a vintage Court of Appeal case, People v. Mandell (1939) 35 Cal.App.2d 368 (Mandell).
In Mandell, one of the two defendants persuaded a young woman to accompany him and his codefendant to another town by promising that he had gotten her a job as a waitress. When they arrived, however, the defendants turned the victim over to the owner of a pool hall and brothel, who kept the victim locked in a room, forced her to work as a prostitute, kept the money she earned, and paid a share of her earnings to both defendants. The Court of Appeal affirmed both defendants' convictions, noting that the offense defined by section 266a "may be committed in two ways, first, by taking a female person for prostitution purposes, against her will; secondly, by obtaining her consent by means of fraudulent inducement." (Mandell, supra, 35 Cal.App.2d at p. 372, italics omitted.)
After Mandell, supra, 35 Cal.App.2d 368 was decided, and before appellant committed the acts at issue in this case, section 266a was amended three times. The amendments made the statute gender-neutral; inserted the cross-reference to section 647, subdivision (b); deleted a five-year maximum on the prison term; and raised the maximum amount of the fine. (Stats. 1975, ch. 996, § 1, p. 2340; Stats. 1976, ch. 1139, § 158, p. 5107; Stats. 1983, ch. 1092, § 257, p. 4031.) Nothing in the amendments calls into question the continuing validity of the Mandell court's interpretation of the statute's elements.
Thus, under Mandell, the elements of the section 266a offense are: (1) taking a person (2) for the purpose of prostitution, (3) either (3)(a) against the person's will and without consent, or (3)(b) having obtained the person's consent by fraudulent inducement or misrepresentation. The elements of the section 209(a) offense, as relevant to the prosecution's theory in this case, are: (1) either (1)(a) kidnapping a person "by any means whatsoever" with the intent to hold or detain that person or (1)(b) holding or detaining a person, (2) to commit extortion. In turn, "extortion," which is defined in section 518, has the following elements, as relevant here: (1) obtaining property from another, (2) with that person's consent, (3) where the consent is induced by a wrongful use of force or fear.
We use the word "kidnapping" here as a shorthand for the statutory language, which includes "seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away." (§ 209(a).)
Respondent contends that under the Williamson rule, section 266a does not preclude prosecution under section 209(a) in this case, because a perpetrator can abduct a victim for the purpose of prostitution through the use of fraud or misrepresentation alone, without resorting to force or fear, and therefore section 266a does not include the element of force or fear required for aggravated kidnapping with the target crime of extortion. As already noted, however, and as respondent acknowledges, the Williamson test does not require that the lesser offense include every element of the greater, as long as commission of the lesser offense (here, abduction for prostitution) would "necessarily or commonly result in a violation of" the statute defining the greater offense (here, kidnapping for extortion).
In our view, any violation of section 266a would "necessarily or commonly" also result in a commission of the section 209(a) crime charged in this case, which was kidnapping for the purpose of extorting the victim's services as a prostitute. The basis for this conclusion is exemplified by the facts of Mandell, supra, 35 Cal.App.2d 368. In that case, the victim initially consented to being taken to a different city on the basis of a fraudulent misrepresentation that she would be working there as a waitress. Once she and her captors arrived at their destination, however, and revealed their true purpose in transporting her, her consent was apparently withdrawn, because the captors' accomplice found it necessary to detain the victim by force in order to compel her to submit to prostitution.
In other words, when a person is induced by fraud to consent to being taken for prostitution, in violation of section 266a, the victim will inevitably discover the fraud as soon as the perpetrators attempt to carry out the actual purpose of the taking. Once that happens, the victim's consent will commonly be withdrawn, and the perpetrators will necessarily (or at least commonly) resort to force or fear in order to carry out their intent to have the victim actually work as a prostitute. Indeed, that is essentially what happened in the present case. Thus, if we accept, for the sake of argument, the prosecution's theory that forcing a person to work as a prostitute constitutes extortion, any violation of section 266a "necessarily or commonly" constitutes a violation of section 209(a). Thus, based on the Williamson rule, appellant was not properly charged or convicted under section 209(a), and his conviction on that count must be reversed.
The only exception would be if the victim is drugged into unconsciousness before being made available to others as a prostitute. This is not sufficiently likely, however, to affect whether a section 266a violation "commonly" also constitutes a section 209(a) violation.
It is theoretically possible that in the interval between the fraudulent taking and the actual prostitution, the victim could be persuaded to consent to the latter without the use of force or fear. This is not likely to happen "commonly," however, because if the victim is inclined to consent to work as a prostitute, the perpetrators would not normally have to resort to fraud or misrepresentation to take the victim in the first place.
Because we reverse appellant's aggravated kidnapping conviction on this ground, we need not and do not address his alternative arguments that: (1) appellant's conduct does not come within the ambit of the crime defined in section 209(a), because "[a] woman's body or its use for financial gain is not 'property' capable of being extorted"; (2) even if this court interprets section 209(a) to permit a conviction based on the theory that the use of a woman's body for financial gain is "property" capable of being extorted, appellant's conviction on that theory cannot be upheld, because appellant did not have fair notice that such conduct could be held to constitute aggravated kidnapping; (3) the aggravated kidnapping conviction cannot be sustained on the alternative exaction theory, because the prosecution did not prove the existence of any secondary victim, and thus the conviction is not supported by substantial evidence; and (4) the aggravated kidnapping conviction is invalid because the trial court's instructions permitted the jury to convict appellant based on the legally invalid theory of exaction with A.L. as the sole victim.
B. Limitation of Cross-Examination Regarding Eaton's Plea Agreement
As already noted, Eaton pleaded guilty just before trial, received a 10-year prison sentence, and agreed to testify against appellant. Because Eaton was permitted to limit his guilty plea to exclude the charge of forcible oral copulation in concert (oral copulation), his sentence did not include a requirement that he register as a sex offender.
During Eaton's direct examination, he testified that after his arrest, he realized that women should not be treated in the way A.L. had been, and that he accepted responsibility for his actions. On cross-examination, appellant's trial counsel sought to impeach Eaton's portrayal of his motivation for the plea bargain by eliciting testimony regarding what Eaton had received in exchange for his agreement to testify. In the course of that cross-examination, counsel elicited from Eaton the fact that he had been allowed to omit oral copulation from the charges to which he pleaded guilty. Counsel then asked Eaton whether he knew that pleading guilty to oral copulation would have required him to register as a sex offender. The prosecutor objected on the basis of the trial court's in limine ruling precluding the defense from introducing evidence regarding the "punishment or possible sentence the defendant would face if convicted." The trial court sustained the objection, and instructed the jury not to consider Eaton's testimony that he was aware he would have had to register as a sex offender if he had pleaded guilty to oral copulation.
The ruling granted a motion in limine made by the prosecution.
Appellant now contends that the trial court's ruling precluding him from cross-examining Eaton on this point violated his right to confrontation under the California and federal constitutions. As appellant correctly points out, both the United States Supreme Court and the California Supreme Court have held that when an accomplice testifies against a criminal defendant pursuant to a plea bargain, that fact bears on the accomplice's credibility and must be disclosed to the jury. (Giglio v. United States (1972) 405 U.S. 150 [defendant was entitled to new trial based on posttrial discovery that accomplice had been promised he would not be prosecuted if he testified]; People v. Bonilla (2007) 41 Cal.4th 313, 337 [" ' "[W]hen an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility." ' [Citations.]"].)
Appellant also argues that the trial court erred in excluding the evidence based on the in limine motion, because the requirement that a convicted defendant register as a sex offender is not "punishment." (People v. Picklesimer (2010) 48 Cal.4th 330, 344.) The in limine motion was broader than that, however; it included "any mention of . . . possible sentence." Even if a sex offender registration requirement is not "punishment," it is part of the "possible sentence" faced by a defendant charged with forcible oral copulation.
Appellant cites no United States Supreme Court or California authority, however, for the proposition that the trial court must permit defense counsel to inform the jury of every consequence that the accomplice has avoided by entering into the plea bargain. He cites two federal appellate cases dealing with the issue: U.S. v. Larson (9th Cir. 2007) 495 F.3d 1094 (Larson), and U.S. v. Chandler (3d Cir. 2003) 326 F.3d 210 (Chandler). They are not binding on us, of course. (See, e.g., McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 297; Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 763, fn. 9.) Moreover, neither of them, even if binding, would mandate reversal in this case.
In Larson, the court reviewed limitations imposed by the trial court on the cross-examination of two accomplices. As to one, the trial court allowed the witness to testify that she had pleaded guilty and agreed to cooperate with the prosecution in exchange for a motion to reduce her sentence, and that she understood in the absence of such a prosecution motion, she faced a mandatory minimum sentence of five years in prison. The trial court did not, however, permit the witness to testify as to the maximum sentence she would face if she did not cooperate. The Ninth Circuit held that nonetheless, "there was no Sixth Amendment error," because "the jury was sufficiently apprised of [the witness's] incentive to testify to the Government's satisfaction—including the mandatory minimum sentence that [the witness] faced in the absence of cooperation with the Government." (Larson, supra, 495 F.3d at p. 1104.)
As to the other witness, the majority of the Larson court reached a different conclusion. That witness had two prior convictions, and but for his plea agreement, would have faced a mandatory sentence of life in prison without the possibility of release. (Larson, supra, 495 F.3d at pp. 1097, 1104.) The trial court permitted defense counsel to elicit testimony from the witness that he hoped to obtain the government's assistance in reducing his sentence in exchange for his cooperation, but made it clear that defense counsel could not inform the jury that in the absence of that assistance, the witness faced spending the remainder of his life in prison. (Id. at p. 1104.) The Ninth Circuit opined that any risk that such information could have some adverse influence on the jury's deliberative process, "is outweighed by a defendant's right to explore the bias of a cooperating witness who is facing a mandatory life sentence. . . ." (Id. at p. 1105, fn. omitted, citing Chandler, supra, 326 F.3d at p. 223.) The "fact that . . . a cooperating witness face[s] a mandatory life sentence without the possibility of release in the absence of a government motion [to reduce the sentence] is highly relevant to the witness' credibility." (Id. at p. 1106.) Thus, the trial court's ruling meant that the information elicited from the witness "did not reveal the magnitude of his incentive to testify to the Government's satisfaction" and "was therefore insufficient to allow the jury to assess [the witness's] credibility," and violated the defendant's right under the confrontation clause. (Id. at pp. 1105, 1107.)
Nonetheless, the court affirmed the conviction, concluding that because of the strength of the other evidence against the defendant, and the other ways in which defense counsel was able to impeach the witness, the error was harmless beyond a reasonable doubt. (Id. at pp. 1107-1108.)
In Chandler, supra, 326 F.3d 210, the defendant was convicted of participating in a drug distribution conspiracy. At trial, two prosecution witnesses testified after entering into plea agreements relating to their participation in the same conspiracy. The defendant's counsel sought to cross-examine the two about their plea agreements. The trial court did not permit counsel to ask about the penalties normally imposed for the conduct to which the witnesses admitted, thus precluding the jury from learning "the magnitude of the sentence reduction they believed they had earned, or would earn, through their testimony." (Id. at p. 221, original italics.) In fact, one of the witnesses had been sentenced to house arrest and probation instead of the sentence of 97 to 121 months he would have received if he had been convicted of selling the quantity of cocaine he admitted having sold. (Id. at pp. 221-222.) The other witness, who had not yet been sentenced, would have faced a sentence of 151 to 188 months based on her admitted cocaine sale, but expected the prosecution to move for a downward departure, as it had done with regard to the other witness, and "presumably hoped for similar treatment." (Id. at p. 222.)
The Third Circuit held that the trial court's restrictions on the cross-examination of the witnesses precluded the jury from learning "facts . . . which would have underscored dramatically [the witnesses'] interest in satisfying the government's expectations of their testimony." (Chandler, supra, 326 F.3d at p. 222.) The court acknowledged that the confrontation clause does not " 'prevent[] a trial judge from imposing any limits on defense counsel's inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.'. . ." (Id. at p. 219, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Nonetheless, the court held that the prosecution's "valid interest in keeping from the jury information from which it might infer [the defendant's] prospective sentence were she to be convicted, that interest did not trump [the defendant's] entitlement under the Confrontation Clause . . . to probe the 'possible biases, prejudices, or ulterior motives of the witnesses' against her. [Citation.]" (Chandler, supra, 326 F.3d at p. 223.) Finally, the court concluded that the error was not harmless beyond a reasonable doubt, because the testimony of the witnesses in question was "essential in showing that [the defendant] was criminally involved" in the conspiracy (id. at p. 224), and "so much depended on the credibility of the cooperating witnesses" that "additional information about their motives in testifying might have proven decisive." (Id. at p. 225.)
We note that in U.S. v. Mussare (3d Cir. 2005) 405 F.3d 161, 170 (Mussare)—a case decided after Chandler, supra, 326 F.3d 210, and not cited by either party here—the Third Circuit clarified the limitations of its holding in Chandler. In Mussare, the trial court allowed testimony that the accomplice had been dropped from the indictment, promised an " 'extremely favorable plea proposal,' " and released on bail after agreeing to testify against the defendants. (Id. at pp. 169-170.) However, the court refused to permit defense counsel to inquire into the maximum penalty the accomplice would have received in the absence of his plea bargain. The Third Circuit held that this limitation was not an abuse of discretion, concluding that once an accomplice has testified to the terms of a plea bargain, as the accomplice understands them, a defendant does not have, in addition, "a categorical right to inquire into the penalty [the accomplice] would otherwise have received." (Id. at p. 170.)
As the above discussion makes clear, neither Chandler, supra, 326 F.3d 210, nor Larson, supra, 495 F.3d 1094, requires reversal on the facts of this case. Here, as in Mussare, supra, 405 F.3d 161, the jury was given considerably more information about the benefit Eaton received from his plea bargain than occurred in Chandler, including the fact that Eaton had been permitted to omit the oral copulation charge from his guilty plea. The only limitation about which appellant complains was his counsel's inability to inquire into the mandatory sex registration component of the potential oral copulation sentence he avoided by his plea agreement. In our view, there was sufficient information, under the circumstances, to enable the jury to evaluate Eaton's credibility with reasonable accuracy. Thus, we are not persuaded that the trial court abused its discretion in limiting appellant's cross-examination of Eaton.
Moreover, in the present case, as in Larson, supra, 495 F.3d 1094, and unlike in Chandler, supra, 326 F.3d 210, Eaton's testimony was far from the only evidence directly implicating appellant in the charged offenses. Much of Eaton's testimony was essentially cumulative, and the prosecution's primary witness was the victim, A.L. Moreover, her account of the events of June 4, 2008, coincided with Eaton's except as to a few relatively unimportant details. In addition, A.L.'s own credibility was reinforced by the testimony of police officer Thomas as to her emotional state in the wake of her ordeal. Thus, any error in limiting appellant's cross-examination regarding Eaton's motivation to testify was harmless beyond a reasonable doubt.
C. Failure to Instruct on Lesser Included Offenses
Appellant argues that the trial court erred in failing to instruct the jury, sua sponte, on necessarily included lesser offenses with regard to the forcible oral copulation in concert and human trafficking offenses. We review this issue de novo (People v. Waidla (2000) 22 Cal.4th 690, 733), bearing in mind the following legal principles. First, an offense is a lesser included offense if "either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.)
Second, the trial court has an obligation to instruct sua sponte on lesser included offenses when there is substantial evidence to support a jury finding that the lesser offense was committed, but not the greater. (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).) Instructions on lesser included offenses are not required, however, unless supported by "evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.) Consequently, the trial court need not instruct on a lesser included offense "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime." (Id. at p. 196, fn. 5.) In other words, even if an offense is a lesser included, a court need not give the instruction if there is insufficient evidence that the offense committed, if any, was less than that charged. (People v. Duncan (1991) 53 Cal.3d 955, 970.) In addressing whether the evidence requires that a particular instruction be given, doubts must be resolved in favor of the defendant. (People v. Wilson (1967) 66 Cal.2d 749, 763.)
1. Forcible Oral Copulation in Concert
As relevant here, section 288a, subdivision (d)(1), defines forcible oral copulation in concert as occurring when one person (the defendant), voluntarily acting in concert with another (the accomplice), commits, or aids and abets the accomplice in committing, an act of oral copulation against the victim's will, by means of force, fear of immediate bodily injury of the victim or another person, or a credible threat of retaliation against the victim or another person. A reasonable, good faith belief in the victim's consent is a defense to this charge. (People v. May (1989) 213 Cal.App.3d 118, 124.) Assault (§ 240) and battery (§ 242) are lesser included offenses of forcible oral copulation. (Cf. People v. Elam (2001) 91 Cal.App.4th 298, 308 [simple assault is lesser included offense of assault with intent to commit forcible oral copulation]; People v. Thomas (2007) 146 Cal.App.4th 1278, 1293 [battery is lesser included offense of lewd and lascivious acts against a minor].)
Based on these principles, appellant argues the trial court erred in failing to instruct the jury that if it believed A.L. consented to orally copulate Eaton, appellant should be convicted of assault and battery rather than forcible oral copulation in concert. In support of this argument, appellant relies on Eaton's testimony that at the time A.L. performed oral copulation on him, he believed the act was consensual. Indeed, there was some evidence supporting Eaton's testimony on this point. It was undisputed that A.L., who was working as a prostitute, initially agreed to orally copulate appellant for $30; later agreed to do the same for Eaton; asked which of the men wanted to go first; and was given the money she had requested before the oral copulation occurred.
Nonetheless, we are not persuaded that the trial court erred in failing to instruct on assault and battery as lesser included offenses. What appellant's briefs fail to acknowledge is that between the time A.L. initially consented to orally copulate Eaton, and the time she actually did so, the nature of A.L.'s encounter with Eaton and appellant changed drastically from the "date" to which she had agreed. After A.L. entered the car with the two men, and before she orally copulated Eaton, she was taken against her will to a motel room outside her "comfort zone," where appellant locked the door and announced that "this bitch" was "not going anywhere"; prevented A.L. from leaving the room; took back the money she had been paid for her anticipated services; slapped, pushed, and yelled at her; ordered her to remove her clothing, which she had not agreed to do; and told her boyfriend that "[t]his bitch owes me." It was only after all of this had occurred that Eaton reiterated his request for oral copulation, and even then, it was not until after appellant pushed A.L. onto her knees in front of Eaton that she complied. Significantly, Eaton himself testified at trial that in retrospect, he realized A.L.'s oral copulation of him was not consensual.
Given this evidence, even if Eaton subjectively believed at the time that the oral copulation was consensual, no reasonable jury could have concluded his belief was objectively reasonable. In other words, if appellant was guilty at all on this count, he was guilty of forcible oral copulation in concert. Thus, the lesser included offense instructions were not supported by substantial evidence, and were not required.
2. Human Trafficking
Section 236.1, subdivision (a), provides that "Any person who deprives or violates the personal liberty of another with the intent to effect or maintain a felony violation of Section . . . 266h [pimping], [or] 266i [pandering], . . . or to obtain forced labor or services, is guilty of human trafficking." Subdivision (d)(1) of the statute specifies that "unlawful deprivation or violation of the personal liberty of another includes substantial and sustained restriction of another's liberty accomplished through fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim . . . ."
Appellant argues that false imprisonment, as defined by section 236, and attempted pimping and pandering, as defined by sections 266h and 266i, are lesser included offenses to the crime of human trafficking as charged in the present case, and thus that the trial court erred in failing to instruct on those offenses. Specifically, appellant contends that because the undisputed evidence showed that appellant and Eaton confined A.L. for an hour at most, the jury reasonably could have harbored a reasonable doubt as to whether A.L.'s liberty was restricted for a "substantial and sustained" period of time. If the jury so found, appellant argues, it could have convicted him of false imprisonment or attempted pimping rather than human trafficking.
We disagree. In People v. Allen (1995) 33 Cal.App.4th 1149, the court was called upon to decide whether 15 minutes was sufficient to constitute a "sustained" period of fear induced by criminal threats, as required by section 422. The court "[d]efin[ed] the word 'sustained' by its opposites," and concluded "that it means a period of time that extends beyond what is momentary, fleeting, or transitory." (Id. at p. 1156.) Accordingly, the court held that 15 minutes was sufficient.
Here, appellant and Eaton forced A.L. to remain with them, first in the car and then in the motel room, until she escaped by running away 45 minutes to an hour later. Appellant acknowledges that this is longer than the period held sufficient in People v. Allen, supra, 33 Cal.App.4th 1149, but argues nonetheless, without citation of authority, that it is not significant when "compared to the prototypical case of sex trafficking." Nothing in section 236.1 requires that the restraint of the victim's liberty extend for any "prototypical" period of time, however. The statute requires only that the restraint be "substantial and sustained." In our view, no reasonable jury would have found that appellant's restriction of A.L.'s liberty in this case did not qualify as a "substantial and sustained" deprivation of liberty under the ordinary meaning of those words used in the statute. Accordingly, there was insufficient evidence that appellant committed the lesser offenses, and instruction on them was not required.
D. Denial of Marsden Motion to Substitute Appointed Counsel
During the course of the pretrial proceedings in this case, appellant made three separate motions for the substitution of a new court-appointed counsel, commonly referred to as Marsden motions. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The first was made on August 22, 2008; the second on October 29, 2008 (the October 2008 motion); and the third on August 27, 2009, after the start of appellant's trial (the August 2009 motion). All three motions were denied.
Appellant's opening brief addresses only the denial of the October 2008 motion. Appellant's failure to discuss his other two Marsden motions in his opening brief effects a forfeiture of any argument he might make that the denial of those motions was improper. (See People v. Stanley (1995) 10 Cal.4th 764, 793.) Nonetheless, we have reviewed the record made in connection with the August 2009 motion to the extent it bears on the question of harmless error.
In his moving papers for the October 2008 motion, and at the ensuing in camera hearing, appellant complained that his counsel failed to respond to his calls; could not answer his questions; and did not permit him, when they met, to "finish expressing [him]self" or ask questions. The trial court asked appellant to "amplify" regarding "[h]ow much . . . your attorney [has] failed to confer or communicate with you." Appellant responded that he called his counsel's office "at least two or three times a week and he never answers." He said counsel had come to see him at least twice, and that every time they met, they would argue, and his counsel would "basically" "get up and walk off." The court asked appellant "what have the clashes been over," and appellant responded that he disagreed with counsel, but did not specify about what, and added that when he asked counsel simple questions, counsel could not answer them, and appellant got upset. Again, however, appellant gave no specifics.
The trial court then asked appellant to be more specific about what necessary investigations he contended had not been done. Appellant complained that his counsel had not sent his investigator to speak with Eaton or with A.L. The trial court responded by explaining to appellant that his counsel could not contact these witnesses directly, because Eaton was his codefendant and was represented by separate counsel, and A.L., as the crime victim, was "entitled to certain protections against harassment," so that counsel would have to "jump through legal hoops" in order to contact her. The court asked whether appellant wanted to comment further on his allegation that his relationship with trial counsel had broken down. In response, appellant explained that his counsel said he did not care if appellant got a life sentence, and had not provided him with any discovery.
The trial court offered appellant's counsel an opportunity to comment on appellant's contentions. Counsel responded that he had given appellant copies of the police reports, although not the transcript of the preliminary hearing. Counsel agreed that he and appellant had "reached a point in the relationship that there is no communication," and that they were unable to work together on the case. Accordingly, counsel requested that he be permitted to withdraw. The trial court asked counsel if the inability to communicate was "brought about through [appellant's] own behavior or choice," and counsel responded, "I would agree." Finally, the trial court asked if appellant had anything to add, and appellant responded by reiterating that he was requesting another attorney because "[m]y life is on the line and he do[es]n't want to do his job, that's how I feel."
After reading appellant's motion and hearing what appellant and his counsel had to say, the trial court found that "the only possible ground for the Marsden motion is because of the allegation of a breakdown in the attorney-client relationship, and that . . . ground is, in some respects, joined by [appellant's counsel]. However, . . . that breakdown has occurred . . . in some respects [because of appellant's] own conduct during communications with [counsel], and under the law the defendant cannot prevail in a Marsden motion if the breakdown occurs because of events within the defendant's own control." Based on that rationale, the trial court denied the motion.
Appellant now argues that the trial court should not have denied his Marsden motion without conducting a more thorough inquiry into the causes for his dissatisfaction with his counsel. We review the trial court's decision for abuse of discretion. (People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on another ground by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
"When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) "However, 'a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.' [Citation]." (People v. Leonard (2000) 78 Cal.App.4th 776, 786; see also People v. Smith (1993) 6 Cal.4th 684, 696.)
In conducting a Marsden hearing, the "court must inquire on the record into the bases of defendant's complaints and afford him an opportunity to relate specific instances of his attorney's asserted inadequacy. [Citations.] Depending on the nature of the grievances related by defendant, it may be necessary for the court also to question his attorney. [Citations.]" (People v. Hill (1983) 148 Cal.App.3d 744, 753; see also Marsden, supra, 2 Cal.3d at pp. 123-124; People v. Turner (1992) 7 Cal.App.4th 1214, 1219.) However, "[o]nce the defendant is afforded an opportunity to state the reasons for discharging an appointed attorney, the decision to allow a substitution of attorney is within the discretion of the trial judge unless defendant has made a substantial showing that failure to order substitution is likely to result in constitutionally inadequate representation. [Citations.]" (People v. Crandell, supra, 46 Cal.3d at p. 859.) "A Marsden motion is addressed to the discretion of the trial court, and a defendant bears a very heavy burden to prevail on such a motion. The defendant . . . cannot rest upon mere failure to get along with or have confidence in counsel. [Citations.]" (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
In this case, appellant contends that the trial court's factual inquiry into the basis for his Marsden motions was "plainly wholly inadequate for the trial court to reasonably conclude that new counsel was not required because the deterioration in the attorney-client relationship was due . . . to appellant's . . . attitude." It was appellant's burden, however, not the court's or his counsel's, to articulate a sufficient factual basis for his Marsden motion. (See People v. Avalos (1984) 37 Cal.3d 216, 231.) As long as the court gave appellant an adequate opportunity to do so, it fulfilled its obligations in hearing the motion. (See People v. Huffman (1977) 71 Cal.App.3d 63, 80-81 ["A trial court's duties [in hearing a Marsden motion] are fully performed when it has given the defendant every opportunity to present and substantiate his specific charges."].)
In fact, the trial judge gave appellant ample opportunity at the hearing on the October 2008 motion to explain his reasons for wanting new counsel. Indeed, the judge explicitly and repeatedly asked appellant to provide details, and repeatedly received only vague, general expressions of discontent in reply. The only specific contentions appellant raised were that: (1) he wanted counsel to interview witnesses whom, as the trial court explained, counsel was legally prohibited from contacting; and (2) counsel had not given him any discovery, which his counsel stated was untrue. Accordingly, we conclude the trial court conducted a sufficient inquiry to determine that the reasons appellant provided for his Marsden motion were inadequate; that is, they fell short of establishing that a denial of substitution of counsel would substantially impair appellant's constitutional right to effective assistance of counsel. (See People v. Webster (1991) 54 Cal.3d 411, 435 ["Denial of [a Marsden] motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would 'substantially impair' the defendant's right to assistance of counsel."].)
Moreover, even if the trial court erred in denying the motion, this is not a basis for reversal of the conviction if the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 36; People v. Chavez (1980) 26 Cal.3d 334, 348-349 [Marsden does not establish a rule of per se reversible error].) At the hearing on the August 2009 motion, appellant's trial counsel noted that he had 30 years of criminal defense experience, including 50 jury trials, all but one of which involved felonies. Counsel also outlined the scope of his work on appellant's case, which included reviewing the police reports and other discovery; representing appellant at the preliminary hearing; filing a section 995 motion, and preparing cross-examination and opening and closing statements. Counsel explained that he had not interviewed witnesses because the only percipient witnesses were A.L. and Eaton, and he did not have access to them. Counsel had met with appellant six or seven times, and had "fully discussed . . . his exposure" and the plea offers made to him by the prosecution; according to counsel, appellant's statements to the contrary were misrepresentations.
It appears from this evidence, and from the overall trial record, that counsel conducted a defense that met the constitutional standard for effective assistance. Moreover, the evidence of appellant's guilt was strong, and essentially uncontroverted. Accordingly, even if the trial court erred in failing to conduct a more thorough inquiry as to the reasons for the October 2008 motion, any error was harmless beyond a reasonable doubt.
IV. DISPOSITION
Appellant's conviction on count one, aggravated kidnapping under section 209(a), is REVERSED. Appellant's convictions on the remaining counts are AFFIRMED. The matter is remanded to the trial court for resentencing.
RUVOLO, P. J. We concur: REARDON, J. SEPULVEDA, J.