Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA303036, Sam Ohta, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Lawrence M. Daniels and Richard S. Moskowitz, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Defendant was charged with pimping a minor under the age of 16 (Pen. Code, § 266h, subd. (b)(2)) and pandering by procuring a minor under the age of 16 (§ 266i, subd. (b)(2)), as to the same victim, Miranda M. The jury found defendant guilty of pandering and the lesser included offense of attempted pimping. The trial court, having stayed the four-year upper term for the attempted pimping conviction pursuant to section 654, imposed an eight-year upper term prison sentence on the pandering conviction.
All statutory references are to the Penal Code, unless stated otherwise.
In a separate proceeding, defendant waived his right to a jury trial on the alleged prior convictions. The trial court found defendant suffered one of the prior convictions, but that it did not qualify as a “strike” for purposes of the three strikes law.
In his timely appeal, defendant contends: (1) the evidence of attempted pimping was constitutionally insufficient to support his conviction; (2) the trial court was required to instruct the jury sua sponte as to the consideration of evidence of defendant’s uncharged crimes; (3) the court erroneously and in violation of defendant’s federal constitutional rights to due process and a fair trial instructed the jury with new pattern jury instructions pursuant to Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM Nos. 200, 223, 224, 220, 226, 252, 300, 302, 316, 318, 332, and 355; (4) the prosecutor committed misconduct during closing argument; (5) the trial court violated his Sixth Amendment jury trial right by imposing the upper term for both convictions without a jury finding on the aggravating factors pursuant to Cunningham v. California (2007) 549 U.S. ___, ___ [127 S.Ct. 856] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296, 301; and (6) the cumulative effect of these alleged errors amounts to a miscarriage of justice, requiring reversal. Finally, defendant requests this court conduct an independent review of the sealed portion of the record pertaining to discovery of personnel records of Los Angeles Police Department Officers Javier Borrego and Jose Alvarez under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the trial court erroneously withheld discoverable information from the defense. As our independent review discloses no error in the trial court’s Pitchess ruling, and the other appellate claims lack merit, we affirm.
STATEMENT OF FACTS
In approximately April 2006, Miranda was 14 years old and living with her father in Portland, Oregon, when she met defendant at a Taco Bell restaurant. Defendant was in the company of Amber Siegler, who was 18 years old. Miranda did not know either one at the time. Defendant, referring to himself as “Alioch,” asked Miranda if she needed some food. Miranda accepted the invitation, got into defendant’s car, and defendant bought some food for her at the drive-through window.
Miranda testified under a grant of immunity.
Defendant invited Miranda to come with him to Los Angeles, promising to take her shopping there. She believed the trip was for a vacation. Defendant bought airline tickets for Miranda, Amber, and himself. They flew to Los Angeles on May 17, 2006, although she was supposed to be in school. She told her father that she was travelling with Amber, but did not mention defendant. When they arrived, defendant’s mother picked them up at the airport and drove them to her house, where they spent the night. In the morning, defendant told Miranda that he expected her to work for him as a prostitute in Hollywood. She objected, and when he insisted she do so, they argued about it. Miranda said she had never been a prostitute.
That day, defendant took Miranda and Amber to Hollywood on a bus. She had brought $40 with her. She spent $20 on food “and stuff.” In the mid-afternoon, defendant instructed Miranda and Amber to “go get as much money as you can” by prostituting themselves. He expected Miranda to make a “couple hundred” dollars, charging “$50 for a blow job, [$]85 for sex, and a hand job for just [$]40.” Miranda, however, testified that she did not intend to engage in prostitution. Amber, on the other hand, was an experienced prostitute. Defendant gave condoms to Amber, but not to Miranda. Defendant left them alone to ply their trade. Amber entered two different cars, while Miranda pretended to be a prostitute. Miranda wanted to run away, but was unfamiliar with the neighborhood. She had relatives in Downey, but did not know how to get there.
At 8:00 p.m., defendant joined them in front of a hotel on Hollywood Boulevard. Defendant demanded money from Miranda and Amber. As Miranda only had her remaining $20, she gave that to him for “safekeeping.” Defendant demanded that Miranda begin taking prostitution clients, but she again refused. Defendant also promised to take her shopping if she agreed, but she continued to refuse. Nevertheless, defendant waived down a motorist in front of the hotel and told her to get into the car. Miranda initially refused, but changed her mind and entered the car, thinking the driver was a prostitution customer—in fact, the driver was undercover Officer Alvarez. Miranda and Officer Alvarez agreed to prices of $85 for “sex” and $40 for a “blow job.” Miranda testified that she did not intend to follow through and perform any sex act. Officer Alvarez had told her that they would drive around the corner to get condoms. When he stopped the car, Miranda was arrested. She was later returned to Oregon.
Officer Borrego testified he was in plain clothes, posing as a prostitution customer or “John,” as part of a prostitution investigation in Hollywood. At approximately 8:45 p.m., he drove his unmarked Toyota up to a hotel near the corner of Sunset Boulevard and Hobart Avenue, where he saw defendant standing with his arms on two females—Miranda and Amber. As Officer Borrego approached, defendant caught his eye, gestured to the females, and invited the officer to stop. Through the open car window, defendant asked the undercover officer whether he liked his “girls” and whether the officer wanted defendant “to get [him] one.” When the officer pointed to Amber, defendant asked if he had any money. Officer Borrego said he did. Defendant walked over to Amber who had been standing next to Miranda. After Amber and defendant talked, Amber walked over to the officer’s car and got inside. As the officer drove a short way, they negotiated a price for a sex act. The officer then parked and signaled to his partner, Officer Alvarez, who arrived and assisted Officer Borrego in arresting Amber.
Officer Alvarez testified that he was working undercover that night, driving a Nissan as part of the prostitution investigation. At approximately 8:55 that evening, Officer Borrego directed him to the corner of Sunset and Hobart. Officer Alvarez saw defendant there, monitoring the traffic. As the officer drove up to defendant, they made eye contact and defendant motioned the officer to approach. Officer Alvarez pulled over. Miranda was standing next to defendant. Defendant directed her to the officer’s car, and she complied. Officer Alvarez pulled his car to the curb, next to Miranda.
Through his car window, the officer asked Miranda whether she “had a place” for them. She replied that she did “not even have a place for” herself. When the officer asked if she had “a specialty,” she asked, “like what?” As the conversation went on in a similar elusive fashion, Officer Alvarez determined she was playing a verbal game typical of street-wise prostitutes. The officer changed tactics and asked directly if she performed specific sex acts. After they negotiated prices for two specific acts, the officer asked if Miranda had condoms. She said “no,” so he told her to get inside the car so they could get some. She did so, and the officer drove her to a gas station, where he arrested her.
Later that night, defendant was arrested by two uniformed officers. When searched, the police recovered two cell phones and $137 in cash from his person. Officer Borrego had previously recovered a cell phone from Amber’s purse. Another cell phone was found in Miranda’s purse. Neither Amber nor Miranda had any money in their possession.
DISCUSSION
Sufficiency of Evidence
Defendant contends the evidence of attempted pimping was constitutionally insufficient to support his conviction either because there was no substantial evidence that defendant knew Miranda was a prostitute, or because there was no substantial evidence defendant asked for or received payment for sexual services by Miranda. Recognizing that he was convicted of the inchoate offense of attempted pimping, defendant argues that as a result of those inadequacies, there was no substantial evidence that he took a direct but ineffectual step toward the commission of the offense. We disagree.
In reviewing a challenge of the sufficiency of evidence, we apply the following standard of review: “[We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin); People v. Marshall (1997) 15 Cal.4th 1, 34.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The California Supreme Court has held, “[r]eversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
For purposes of this case, under section 266h, a person commits the offense of pimping if the offender knows “another person is a prostitute” and “solicits or receives compensation for soliciting for the person.” (§ 266h, subd. (a).) Focusing on the knowledge element, defendant argues that he could not have known Miranda was a prostitute because there was no evidence that she actually was a prostitute. “Proof the female involved is a prostitute is essential to a conviction of pimping. [Citations.] Certainly the requirement of the code section that the defendant know the woman he solicits for is a prostitute presupposes she is in fact a prostitute.” (People v. James (1969) 274 Cal.App.2d 608, 613 (James).) Here, in support of his argument, defendant relies on Miranda’s testimony that she had never been a prostitute prior to the night in question, and on that night, she neither intended to perform any sex act for money nor did so.
“Knowledge is a question of fact to be determined by the jury from the evidence, including all reasonable inferences to be drawn therefrom.” (People v. Robison (1970) 4 Cal.App.3d 1014, 1018.) Here, as the prosecutor argued to the jury, there was solid, credible evidence that Miranda was a prostitute and defendant knew it. (See ibid.) Defendant repeatedly told Miranda to commit acts of prostitution for his monetary benefit and told her what to charge. Miranda watched as Amber entered cars to prostitute herself for defendant’s benefit. After leaving Amber and Miranda for some hours on the streets, defendant returned and demanded the money they had received from prostitution clients up to that time. Shortly thereafter, Miranda acquiesced when defendant told her to get into the putative john’s car, and she negotiated a fee, consistent with defendant’s instructions, for providing sexual services.
In addition, as Officer Alvarado testified, Miranda’s street-wise banter bespoke prostitution experience, not naïveté. As such, both objectively and from defendant’s perspective, there is sufficient evidence to support the reasonable inference that defendant knew Miranda was a prostitute at the relevant time. Miranda’s words and actions both prior to and during the transaction with Officer Alvarado showed her to be a prostitute because she was actively engaged in prostitution—“offer[ing] herself indiscriminately to sexual intercourse for hire.” (People v. Robison, supra, 4 Cal.App.3d at p. 1017.) The jury was not obliged to believe her self-serving testimony either as to a lack of experience as a prostitute or a lack of intent to commit prostitution. Moreover, pimping does not require a completed act of prostitution. (Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 437 (Wooten); People v. Dell (1991) 232 Cal.App.3d 248, 264 [“The jury was also correctly informed an actual act of intercourse is not required to be guilty of an act of prostitution”].) Rather, “prostitution occurs when the person has the specific intent to engage in either sexual intercourse or lewd acts in exchange for money or other consideration for the purpose of sexual arousal or gratification and takes some step in furtherance of that act.” (People v. Dell, supra, 232 Cal.App.3d at p. 264, citing People v. Hill (1980) 103 Cal.App.3d 525.)
To the extent defendant asserts the knowledge of prostitution element requires proof that Miranda had a history of prostitution, he is mistaken. “The requirement is that she be a prostitute at the time of the alleged offense and inconnection with the activities with which the defendants were charged.” (James, supra, 274 Cal.App.2d at pp. 611-612.) Accordingly, in James, the court held evidence that the alleged prostitute had been “convicted of prostitution in 1963 and pleaded guilty to soliciting an act of prostitution in 1966 [was] not relevant to the pimping charges brought against [the defendants] growing out of the incident which took place in June 1967.” (Id. at p. 612.) As shown above—and unlike the situation in James, where the jury implicitly found that the putative prostitute was acting as a thief, not a prostitute, at the relevant time—there was ample evidence that Miranda was engaging in prostitution in response to defendant’s direction that she enter Officer Alvarado’s car.
Wooten is also distinguishable and provides no support for defendant’s position. There, the prosecution failed to present any evidence that the defendants, managers of a “strip joint,” knew their female employee had offered to perform a sexual act for money. (Wooten, supra, 93 Cal.App.4th at pp. 424, 437.) Indeed, Wooten tends to support defendant’s conviction because it implied that evidence that the defendants knew about that single, unconsummated offer of sex for money would have been sufficient to prove the knowledge element of pimping.
The prosecution also presented substantial evidence that defendant solicited payment for the contemplated prostitution transaction with Officer Alvarado. “[S]ection 266h can be violated in either of two basic ways: (1) by deriving support from the earnings of another’s act of prostitution or (2) by soliciting. In order to violate the statute by soliciting, there must be either the receipt of compensation for soliciting for a prostitute or the solicitation of compensation for soliciting for a prostitute.” (People v. McNulty (1988) 202 Cal.App.3d 624, 630.) The mere fact that defendant did not ask the officer for money prior to the transaction hardly precludes a reasonable inference that he solicited money for the illegal transaction—both implicitly through his own conduct and through his agent, Miranda. A reasonable juror could have found defendant waved Officer Alvarado over for the purpose of providing Amber’s services as a prostitute, a finding corroborated by evidence that Miranda followed defendant’s instructions in getting into Officer Alvarado’s car and bargaining sexual services for a fee. Additionally, there was strong, unchallenged evidence that at 8:00 p.m., defendant had demanded payment from both Amber and Miranda for the prostitution transactions he had instructed them to perform that day. Miranda witnessed Amber pay defendant for her nearly contemporaneous acts of prostitution. As such, there was ample evidence of solicitation to satisfy the compensation element of section 266h, subdivision (a).
In any event, defendant was convicted of attempted pimping. “An attempt to commit a crime . . . requires only a specific intent to commit it and a direct but ineffectual act done towards its commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime. [Citations.] A defendant can be convicted of the attempt to commit most crimes even though a factual impossibility prevented the commission of the crime itself.” (People v. Ross (1988) 205 Cal.App.3d 1548, 1554-1555.) Thus, even accepting Miranda’s self-serving testimony as to her lack of intent to prostitute, there was ample evidence of attempted pimping based on defendant’s actions in doing everything necessary to set up the prostitution transaction between Miranda and Officer Alvarado and by putting the transaction into action.
Jury Instruction on Uncharged Crimes
Defendant argues the trial court was required sua sponte to give a limiting jury instruction, consistent with CALCRIM No. 375, to the effect that evidence of uncharged crimes by defendant can only be considered if proved by a preponderance of evidence, and then only for enumerated purposes. More specifically, defendant contends such a limiting instruction was necessary in light of the testimony by Officer Borrego and Miranda as to defendant’s pimping of Amber. We reject this claim because the evidence concerning Amber was highly relevant to the charged offenses and there was no reasonable likelihood the jury would have considered it for an improper, prejudicial purpose.
The defense did not request such a limiting instruction, thus the court was under no obligation to give one sua sponte. (Evid. Code, § 355 [limiting instruction shall be given “upon request”].) “‘[I]n general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.’ (People v. Collie (1981) 30 Cal.3d 43, 64; see also People v. Valentine (1986) 42 Cal.3d 170, 182, fn. 7 [‘where the fact of a prior conviction is admitted solely to establish ex-felon status as an element of violation of section 12021, the trial court, at defendant’s request, should give an instruction limiting the jury’s consideration of the prior to that single purpose’ (italics added)]; Evid. Code, § 355.)” (People v. Griggs (2003) 110 Cal.App.4th 1137, 1139-1140, fn. omitted.) Defendant seeks to rely on a potential exception to this general rule noted by the court in dicta in People v. Collie, supra, 30 Cal.3d at page 64, for “an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.”
Contrary to defendant’s assertion, this is not the kind of extraordinary case hypothesized in Collie. The limiting instruction defendant belatedly seeks is derived from Evidence Code section 1101, subdivision (b), which provides that evidence of a character trait, such as a predisposition to committing crimes, is inadmissible to prove conduct on a specified occasion. Thus, it has been recognized that evidence that a defendant has committed crimes other than those for which he is on trial has a strong tendency to cause prejudice, and should be excluded, where the connection between the uncharged offense and the ultimate fact in dispute is unclear. (People v. Daniels (1991) 52 Cal.3d 815, 856.) However, subdivision (b) of Evidence Code section 1101 provides that the limitation does not prohibit “the admission of evidence that a person committed a crime . . . when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (See, e.g., People v. Ewoldt (1994) 7 Cal.4th 380, 393; People v. Daniels, supra, 52 Cal.3d at p. 856 [“Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity.”].) As the Collie decision explained: “Evidence of past offenses may not improperly affect the jury’s deliberations” where, for instance, “the evidence is obviously used to effect one or more of the many legitimate purposes for which it can be introduced.” (Collie, supra, 30 Cal.3d at p. 64.)
Here, the evidence concerning defendant’s pimping of Amber was not only inextricably related to the charged offenses as to Miranda, but that evidence was relevant and plainly admissible for the legitimate purposes of proving defendant’s motive, intent, preparation, plan, knowledge, and absence of mistake or accident—all with regard to the pimping of Miranda. At no time did the prosecution argue that defendant was guilty of pimping simply because his conduct vis-à-vis Amber showed he was a pimp. Rather, the prosecution properly argued that defendant’s pimping of Amber helped explain his conduct and intentions as to Miranda. As such, not only was the connection between the uncharged crimes and the ultimate fact at issue clear, but the evidence was used for the legitimate purposes recognized by the Evidence Code.
As an alternative argument, defendant contends his trial counsel rendered constitutionally ineffective assistance by failing to request the limiting instruction. As the appellate record shows neither objectively deficient performance nor a reasonable likelihood of prejudice, we reject the claim.
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)” (People v. Cunningham, supra, 25 Cal.4th at p. 1003 .)
“The Sixth Amendment guarantees competent representation by counsel for criminal defendants[, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland v. Washington, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8 Cal.4th 450, 513.) “A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. ‘If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citations.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Here, the record is silent as to whether defense counsel had a tactical purpose in failing to request the limiting instruction. This is not a case in which reasonable counsel would necessarily have requested the instruction. As our previous analysis shows, once the trial court overruled defendant’s relevance objection and it became clear that the evidence concerning Amber would be admitted, defense counsel could reasonably have chosen to forgo requesting the limiting instruction. The instruction would have served little purpose since it would merely highlight—and give additional legal credence to—the multiple purposes for which the evidence could be legitimately considered to show defendant’s guilt. (See, e.g., People v. Freeman, supra, 8 Cal.4th at p. 495 [“Nor was counsel ineffective in failing to request the instruction. Counsel may well not have desired the court to emphasize the evidence, especially since it was obvious for what purpose it was being admitted.”].) The same analysis demonstrates why there was no reasonable probability that the absence of the limiting instruction would have affected the verdict.
Pitchess Motion
Defendant requests this court to conduct an independent review of the sealed portion of the record pertaining to discovery of personnel records of Officers Borrego and Alvarez in response to defendant’s pretrial motion under Pitchess, supra, 11 Cal.3d 531. Pursuant to defendant’s request, we must determine whether the trial court abused its discretion and erroneously withheld discoverable information from the defense. Defendant’s Pitchess motion sought information from the personnel records of the two officers who participated in the investigation and the arrests of defendant, Miranda, and Amber to the extent those records contained citizen complaints of the officers’ committing false arrests, fabrication of evidence or police reports, and related misconduct. At the initial in camera hearing, the trial court found some discoverable material and ordered that it be disclosed the following day. Nothing in the record indicates a failure to comply with that order, and defendant does not contend otherwise.
We have reviewed all material in the record regarding defendant’s Pitchess motion, including the moving papers and the sealed transcript of the in camera hearing. “The hearing transcript contains an adequate record of the court’s review and analysis of the documents provided to it. It reveals no abuse of discretion.” (People v. Myers (2007) 148 Cal.App.4th 546, 553, citing People v. Mooc (2001) 26 Cal.4th 1216, 1228.)
Challenges to CALCRIM Nos. 200, 223, 224, 220, 226, 252, 300, 302, 316, 318, 332, and 355
Defendant contends the court erroneously and in violation of defendant’s federal constitutional rights to due process and a fair trial instructed the jury with new pattern jury instructions, specifically CALCRIM Nos. 200, 223, 224, 220, 226, 252, 300, 302, 316, 318, 332, and 355. We review defendant’s constitutional challenges pursuant to sections 1259 and 1469. As we explain, most of these arguments amount to mere logic chopping and all except the challenge to CALCRIM No. 332 have been soundly rejected by our colleagues of the Third and Fifth Districts in People v. Ibarra (2007) 156 Cal.App.4th 1174 (Ibarra) and People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson). We adopt the reasoning in those opinions and affirm.
Accordingly, we reject the Attorney General’s argument that defendant forfeited his instructional challenges by choosing to have the trial court instruct the jury with the CALCRIM, rather than the CALJIC, pattern instructions.
A. CALCRIM No. 200
Pattern instruction CALCRIM No. 200 provides introductory instructions and admonitions concerning the duties of the judge and jury. Defendant presses the same arguments rejected in Ibarra, supra, 156 Cal.App.4th at page 1185 and Anderson, supra, 152 Cal.App.4th at pages 927-929. We adopt the reasoning of those two decisions and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instructions.
B. CALCRIM Nos. 223 and 224
CALCRIM No. 223 defines direct and circumstantial evidence; CALCRIM No. 224 explains how to evaluate circumstantial evidence in assessing whether there is sufficient evidence of guilt beyond a reasonable doubt. Again, defendant advances the essentially same arguments rejected in Ibarra, supra, 156 Cal.App.4th at pages 1186-1187 and Anderson, supra, 152 Cal.App.4th at pages 929-934. We adopt the reasoning of those two decisions and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
C. CALCRIM No. 220
CALCRIM No. 220 defines the reasonable doubt standard of proof. Defendant makes the same argument rejected in Ibarra, supra, 156 Cal.App.4th at pages 1185-1186. We adopt the reasoning of that decision and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
D. CALCRIM No. 226
CALCRIM No. 226 provides guidance for assessing witness credibility. Defendant presses the same arguments rejected in Ibarra, supra, 156 Cal.App.4th at pages 1187-1188 and Anderson, supra, 152 Cal.App.4th at pages 934-936. We adopt the reasoning of those two decisions and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
E. CALCRIM No. 252
CALCRIM No. 252 instructs on the concurrence of act and intent. Defendant makes the same argument rejected in Ibarra, supra, 156 Cal.App.4th at page 1189. We adopt the reasoning of that decision and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
F. CALCRIM No. 300
CALCRIM No. 300 provides: “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” Defendant advances the argument rejected in Ibarra, supra, 156 Cal.App.4th at pages 1189-1190 and Anderson, supra, 152 Cal.App.4th at pages 937-938. We adopt the reasoning of those two decisions and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
G. CALCRIM No. 302
CALCRIM No. 302 provides guidance regarding the evaluation of conflicting evidence. Defendant advances the argument rejected in Ibarra, supra, 156 Cal.App.4th at pages 1190-1191 and Anderson, supra, 152 Cal.App.4th at pages 938-940. We adopt the reasoning of those two decisions and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
H. CALCRIM Nos. 316 and 318
CALCRIM No. 316 provides additional guidance regarding the evaluation of witness credibility. As relevant here, it states: “If you find that a witness has committed a crime or other misconduct, you may consider that fact [only] in evaluating the credibility of the witness’s testimony. The fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.” (CALCRIM No. 316, emphasis added.) CALCRIM No. 318 concerns the evaluation of witness statements made before trial, instructing that if the juror decides a witness made the prior statement, the juror “may use” that statement to assess the witness’s credibility or to assess whether the prior statement is true. (CALCRIM No. 318, emphasis added.)
Defendant advances the same arguments rejected in Anderson, supra, 152 Cal.App.4th at pages 940-941, with regard to CALCRIM No. 316—that the use of the word “may” instead of “must” renders the instruction erroneous and unconstitutional. We adopt the Anderson court’s reasoning and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
I. CALCRIM No. 332
The trial court instructed the jury pursuant to CALCRIM No. 332, which provides the following guidance on the evaluation of expert witness testimony: “A witness was allowed to testify as an expert and to give an opinion. You must consider the opinion, but you are not required to accept it as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.
“An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the expert’s opinion.” (CALCRIM No. 332, emphasis added.)
Defendant focuses on the italicized sentence quoted above, arguing that it serves to violate his constitutional rights to a fair trial and to confront adverse witnesses because it requires the jury to assess the truthfulness of the information on which the expert relied—however, as experts typically rely on hearsay, the instruction improperly forces the jury to consider information not admitted into evidence from sources not subject to cross-examination. We need not discuss the merits of the argument, as there is no possibility defendant was prejudiced by the instruction.
The only testimony that would arguably qualify as expert testimony in this case was that of Officers Borrego and Alvarez, to the extent they explained the meanings of words and conduct on the part of defendant, Amber, and Miranda. Defendant’s briefs do not identify any hearsay upon which the officers relied, nor does our review of the record reveal any. As such, the challenged portion of the instruction was at worst mere surplusage. In addition, defendant has made no argument regarding prejudice, a necessary ingredient for reversal. Accordingly, we hold there was no error in giving an unmodified version of CALCRIM No. 332 in this case, nor has defendant demonstrated prejudice sufficient to warrant reversal under the federal or state constitutions. (Chapman v. California (1967) 386 U.S. 18, 24; Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)
J. CALCRIM No. 355
CALCRIM No. 355 provides guidance regarding a defendant’s “absolute constitutional right not to testify.” Once again, defendant advances the arguments rejected in Ibarra, supra, 156 Cal.App.4th at pages 1191-1192 and Anderson, supra, 152 Cal.App.4th at page 941. We adopt the reasoning of those two decisions and hold the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
K. Cumulative Error
Defendant contends the accumulation of alleged instructional errors addressed above was prejudicial under the Chapman standard and rendered his trial fundamentally unfair. Having rejected each of those appellate challenges, we are compelled to find no merit to this contention. This was not a case in which trial errors that were nonprejudicial singularly, combined to deprive defendants of due process or a fair trial. (See People v. Box (2000) 23 Cal.4th 1153, 1219.)
Prosecutorial Misconduct
Defendant contends that during closing argument, the prosecutor misstated the law so as to lessen the People’s burden of proof. In a variation on one of the themes of his sufficiency of the evidence claim, defendant argues the prosecutor tried to eliminate the need to prove a fact necessary to the knowledge element of pimping—that Miranda was a prostitute at the relevant time. (James, supra, 274 Cal.App.2d at p. 613; see also Wooten, supra, 93 Cal.App.4th at p. 437.) According to defendant, the prosecutor argued it was enough that defendant believed Miranda was a prostitute and there was need for proof that she actually was a prostitute at the time. As we explain, this argument fails because it is premised on a misreading of the record and a misinterpretation of the law.
Following the close of evidence, the prosecutor waived opening argument. Defense counsel argued the prosecution failed to prove its case for the knowledge element of pimping because, among other things, “there was no evidence presented suggesting that [Miranda was] a prostitute.” To the contrary, argued defense counsel, Miranda “said she has never performed any act of prostitution in Oregon, never performed any act of prostitution here and never intended to.” The prosecutor began her closing argument by controverting that very point, arguing that despite Miranda’s protestations of innocence, “it took her only three cars to finally cave in and walk to the car and negotiate sex for money,” thereby becoming “the very thing that she, in fact, did not want to become: a prostitute.” According to the prosecutor, the evidence showed it was only because of the fortuity that the intended john was an undercover officer that she was spared from consummating the sexual transaction.
Later in her argument, in the passage defendant contends was misconduct, the prosecutor attempted to respond to one of the defense arguments: “[I]f I understand his argument, [defense counsel] wants you to believe that since out of sheer luck Miranda never actually gave anyone a blow job or had sex for money, that his client gets to walk away from [the pimping count] free and clear. But that is not what [section 266h] says. This does not say that Miranda M. was, in fact, a prostitute. This element only requires that the defendant knew she was a prostitute. [¶] Again, it only requires that we go inside the defendant’s state of mind. How do we know that the defendant knew or believed Miranda was a prostitute? We know he believed she was a prostitute because, again, words and actions. This is how you infer someone’s state of mind. That the circumstantial evidence. What does he do when he has Miranda here and Amber here? He holds out his hand and says, ‘Do you like my girls? Which one do you want, the big one or the little one?[’] And we heard testimony Miranda is the little one. So he’s selling his product on the street corner.”
The prosecutor continued arguing along those lines, adding that defendant was “blatantly selling and trying to solicit customers for the two prostitutes that [he had] on either side of him. If he didn’t believe Miranda M. was actually a prostitute, he wouldn’t have tried to sell her as his product. And we know that he actually believed it, even further, when he kept pointing to the cars, pointing to her and telling her, ‘Get in there.’ Again, his word and his actions convicted himself because they proved that [the knowledge element of pimping] has been proven beyond a reasonable doubt.” At that point, the defense interposed an objection to the prosecutor’s use of the word “believe” as being a misstatement of the law. The trial court overruled the objection, instructing and admonishing the jurors that it had “given [them] the law. The attorneys are interpreting the law, and they’re interpreting the facts. This is argument. But I’ve given you the law that applies to this case. If you don’t agree with the attorneys[’] interpretation of the facts [or] the law, you can absolutely disregard it.”
The basic governing principle is clear. While counsel have “‘broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]’” (People v. Mendoza (2007) 42 Cal.4th 686, 702 (Mendoza), quoting People v. Bell (1989) 49 Cal.3d 502, 538.) “To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970.)
Based on our prior discussion of the law regarding the knowledge of prostitution element of pimping, it is clear that section 266h requires that the defendant know the other person he is soliciting (or from whom he is deriving support) is a prostitute. That is, the crime of pimping contemplates that the pimp’s earnings be derived from prostitution, rather than from some other activity. (See, e.g., James, supra, 274 Cal.App.2d at pp. 613-614.) Thus, the prosecutor would have misstated the law if she had argued that it did not matter whether Miranda was engaging in prostitution because defendant’s mere subjective belief about the nature of her activity was sufficient to support a guilty verdict. However, read in context, we find it unlikely the jury would have construed her statements in that manner.
First, the prosecutor began her argument by asserting that the facts showed Miranda was a prostitute at the relevant time for purposes of pimping. Second, in the challenged portion of her argument, the prosecutor stated that she was responding to the defense argument that the knowledge element was not proved because Miranda did not complete an act of prostitution. And, finally, the prosecutor never argued that it was unnecessary to prove that Miranda was actually engaging in prostitution at the relevant time. Rather, in her use of “believe” for “know,” she was focusing on the evidence that proved defendant’s knowledge of Miranda’s prostitution, not arguing that the nature of her activity was irrelevant. Accordingly, the most reasonable interpretation of the prosecutor’s remarks is that she was making the legitimate argument that whether Miranda actually consummated an act of prostitution (or intended to do so) was not determinative. Rather, for purposes of the knowledge element of pimping, the crucial fact was whether defendant knew (or believed) that Miranda entered the car for the purpose of prostitution. As we explained in discussing defendant’s insufficiency of evidence challenge, pimping’s knowledge-of-prostitution element can be established by substantial evidence the defendant knew the alleged prostitute intended to engage in sex for money and acted in furtherance of that intent.
The prosecutor cannot reasonably be said to have engaged in the kind of intemperate behavior that violates the federal Constitution—behavior that comprises a pattern of conduct “‘“‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’” (People v. Samayoa (1997) 15 Cal.4th 795, 841, citing People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Espinoza (1992) 3 Cal.4th 806, 820.)
Even if the prosecutor had misinterpreted the law of pimping, we are confident there was no reasonable likelihood that defendant would have suffered prejudice. “[A]rguments of counsel ‘generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.’ (Boyde v. California (1990) 494 U.S. 370, 384.)” (Mendoza, supra, 42 Cal.4th at p. 703.) Here, not only did the trial court admonish the jurors that the prosecutor’s statements merely constituted argument, but it correctly instructed them that the prosecution was required to prove: (1) “defendant knew that Miranda M. was a prostitute”; (2) defendant “asked for payment . . . for soliciting prostitution customers for Miranda M.”; and (3) “Miranda M. was a minor under the age of 16 years when she engaged in prostitution.”
Accordingly, the trial court left no room for ambiguity as to whether the jurors were required to find that Miranda was in fact a prostitute—and not that defendant merely believed her to be one—at the relevant time. “‘[It is] the almost invariable assumption of the law that jurors follow their instructions.’ [Citation.] ‘[We] presume[e] that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’ [Citations.]” (United States v. Olano (1993) 507 U.S. 725, 740.) There is no good reason to find they did otherwise here. It follows that there was no prejudice under Chapman’s harmless-beyond-a-reasonable-doubt standard for constitutional error. (Chapman, supra, 386 U.S. at p. 24.)
Upper Term Sentences
Defendant contends the imposition of upper term sentences for pandering and attempted pimping violated his Sixth Amendment jury trial right to have a jury finding on the aggravating factors pursuant to Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at p. 856] and Blakely v. Washington, supra, 542 U.S. at page 301. We disagree.
In People v. Black (2007) 41 Cal.4th 799, 805 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, 831 (Sandoval), the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham, supra, 549 U.S. at page ___ [127 S.Ct. at pp. 863-864]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466 (Apprendi)] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) Our Supreme Court further held: “It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
In addition, Black II made it clear that, consistent with Apprendi, aggravating circumstances justifying the upper term may be established “based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) Further, “‘[r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Id. at p. 818.) Black II held the prior conviction exception includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Id. at pp. 819-820, fn. omitted.)
Here, the trial court found no circumstances in mitigation and found three statutory aggravating factors, two of which qualified as recidivism under Black II—that defendant engaged in violent conduct indicative of a serious danger to society “with respect to his prior convictions,” and that defendant served a prior prison term. (Cal. Rules of Court, rule 4.421(b)(1) & (b)(3).) The trial court found beyond a reasonable doubt that defendant had been convicted of robbery in Oregon. Also, the probation officer’s report included a listing of adult criminal history that included three robberies and one “reckless burning” conviction in Oregon. “The trial court is presumed to have read and considered the probation report.” (Black II, supra, 41 Cal.4th at p. 818, fn. 7.)
Because defendant’s “criminal history” established aggravating circumstances which “independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term[,] . . . he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by imposition of the upper term sentence . . . .” (Black II, supra, 41 Cal.4th at p. 820; see also People v. Burch (2007) 148 Cal.App.4th 862, 873 [“The use of prior convictions as factors for a sentencing departure from the statutory maximum (middle term) is constitutionally permissible because it falls within the Supreme Court’s bright-line exception”].)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.