Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 02219428
RIVERA, J.
Jeffery Walker appeals from a judgment entered upon a jury verdict finding him guilty of pandering (Pen. Code, § 266i, subd. (a)(2)). In a bifurcated proceeding, the trial court found that defendant suffered a prior strike conviction (§ 667, subds. (d) & (e)). He contends that the evidence is insufficient to support the verdict; that the court committed instructional, evidentiary and sentencing errors; and that the prosecutor committed misconduct. We affirm.
All undesignated statutory references are to the Penal Code.
I. FACTS
In late April 2005, Juliana G., who was then 22 years old, was walking in San Jose when she saw defendant drive by and then park near her mother’s house. Defendant started to talk to her from the car and said his name was Jeffery, that he also went by the name of “Mr. Wonderful,” and that he was from the radio station 94.9. Juliana had previously heard of Mr. Wonderful. They talked about a contest that the station had to pick a Latin girl for a job. Juliana had heard about the contest but told defendant that she would not do the stuff that girls were doing to get a job at the station and that she “thought it was crazy.” Defendant asked her if she was interested in working for the station. She expressed interest, and told defendant that the job promoting the station by handing out flyers in clubs sounded fun. Defendant asked her for her phone number and she gave it to him. He told her that he would talk to the station to find out if there was an opening. He got out of the car, gave her a hug and said he would call her later.
Defendant called her on Wednesday, April 27, 2005, and asked her if she was still interested in the job doing promotional work. He called her on Thursday and left her a message that he had a job for her at a club on Friday. Juliana called defendant and arranged to meet with him at his office to fill out an application.
Juliana met defendant at his office at approximately 7:00 p.m. on Thursday, April 28, 2005. Defendant’s office was located on White Road in San Jose in a hair salon. Juliana filled out an application. There was a flyer in the salon’s window with the 94.9 logo on it that was promoting a party but there was nothing else in the office connecting it to the radio station. After she completed the application, defendant asked her if she was interested in being a stripper at a club in San Francisco. He said he had an adult entertainment business and showed her a few flyers with girls and phone numbers and asked her if she was interested in escorting. Juliana said that she was not.
Defendant then asked her if she was interested in stripping and Juliana said that she might be interested in working at a topless bar. She had not done that type of work before but she had performed a lap dance in costume at a friend’s birthday party.
Defendant called Juliana and told her that she had a job at Hustler’s in San Francisco and told her to meet him at 7:00 p.m. at his office on Friday. Juliana and her boyfriend, Isaiah L., went to defendant’s office on Friday evening. Isaiah tried to get information about Juliana’s job from defendant but he was vague and said only that they would be promoting at a few clubs. Defendant asked Isaiah in a joking manner whether he was interested in working for Chippendale’s or stripping. Isaiah said he was not interested. Isaiah told Juliana that he did not trust defendant and told her to keep her phone with her and to be careful. Juliana had a backpack with two extra outfits that defendant had asked her to bring.
Juliana understood that other girls would be going with them and that they would drive to San Francisco in a limousine. However, no other girls showed up and defendant was unable to arrange a limousine. They drove to San Francisco in defendant’s car. On the way, defendant asked Juliana personal questions about her relationship with Isaiah. Juliana ignored his questions about her sex life. Juliana felt uncomfortable, thought “everything was becoming a lie,” and felt she was in a situation she could not handle.
Defendant turned his discussion to what would happen in San Francisco at the clubs. He mentioned that in the strip clubs, there were private rooms and that men often asked for sex including hand jobs or oral sex. Defendant said it was alright to have sex as long as the club manager did not know about it. He told her that she should charge $100 for sexual intercourse, and $50 for oral sex. Juliana could not remember what he said to charge for hand jobs. Defendant also told her that she could do extra lap dances in the private rooms. Juliana told defendant she was not interested and asked him if she had to do these acts. Defendant said no but that she would make more money if she did. “He kept going at it and going at it, how it would make me more money, and some of the guys, when they go back there in the private rooms, they are pretty much expecting—he just kept promising me more money.” Defendant also told Juliana about his expertise in martial arts which made her feel intimidated.
Juliana had been to San Francisco as a child on two occasions but was not familiar with the city. Defendant first tried to locate a friend and when he was unsuccessful, he drove around the city. He showed her a building and told her that it was the location of the radio station. He then drove to an area that appeared to be near a CalTrain station. He parked his car in a dirt lot near a large truck. After he parked, Juliana asked what they were doing since she thought they were going to the clubs. Defendant told her that “he wanted to see what he was working with.” He put his hand on her thigh and started to massage it. Juliana tried to brush his hand off, but defendant put it back and grabbed her hand and tried to make her rub the inner part of his leg. Juliana pulled away but defendant grabbed her hand again. She told defendant to stop. Defendant told her that he was not going to hurt her. He asked Juliana if she knew what she was going to be doing in the clubs and when she said no, he said that “he was going to train [her] on the dick” and “game [her] on the game.” Juliana did not know what he meant. Defendant kept telling her that he wanted to see what he was working with and grabbed her hand and tried to put it on his leg and penis. Juliana was scared, she told him no or words to that effect several times.
Defendant got out of the car and went to the passenger side of the car and pushed her seat back. He got into the car, told her to be quiet, and tried to rub her leg inside her skirt. Juliana tried to push him away but he kept forcing himself on her. He pinned her arms, tried to kiss her, and to force her legs open. He eventually inserted his fingers in her vagina. He started to rub his penis on her leg. Juliana tried to push him off but defendant forced himself on her, penetrated her vagina, and ejaculated.
Defendant went to the trunk of the car, brought her a white T-shirt, and told her to use it to clean herself. He changed into a suit, got back in the car, and told her “that no one is to know about that.” Defendant drove her to Broadway and told her they were running late. Juliana was in shock and felt lost. She wanted to get home and wanted to make sure that defendant would take her home so she pretended like nothing happened. She did not have any money.
Defendant took Juliana to Hustler’s where the manager said that Juliana could not audition because they were too late. The manager told Juliana to fill out an application and to come back tomorrow. Juliana filled out the application, listing defendant’s name and telephone number as a reference. They went to another club nearby where defendant showed her one of the booths where girls dance. At a third club across the street, defendant spoke with the manager and told him Juliana was interested in a job. Defendant asked about the back rooms, but was not allowed to show them to Juliana. Instead, an employee took her upstairs to show her the private booths. Defendant asked Juliana to get the telephone number of one of the dancers at the club. After she got the number, they left.
At the fourth club, Juliana auditioned for the manager. She danced topless for a few minutes and then gave a customer a lap dance. The manager then agreed to let defendant show her the back rooms. Defendant showed her the rooms, told her that the rooms were where all the money was made, and reiterated what he told her in the car about making money in the rooms. At some point, a customer asked her to do a private dance. She went to a back room with him and they talked. She did not dance for the customer. The customer gave her $100. When she left the club with defendant, he told her that she had made about $500 at the club, and that he had to count it and sort it out. They went to another club where the manager pointed out the location of the back rooms but refused to show them the rooms. Defendant whispered to Juliana that the rooms were where the money was being made. Before they left, the manager gave Juliana a card and pulled her aside to tell her that if she came back without defendant, he was willing to give her a job. At another club, defendant directed her to watch the girls dance in order to get tips.
On the way back to the car, defendant received a phone call from a friend who wanted strippers for his party. The friend was not satisfied with the strippers already there. After defendant got off the phone, he asked Juliana if she was willing to go to a bachelor party. Juliana said no that she needed to get back home. Defendant asked her if she had any friends that would be interested in stripping. Juliana called her friend, Stephanie, who told her she was not interested. She told Stephanie to call her boyfriend if she did not arrive home. She did not tell her about the rape because defendant was sitting right next to her. After the phone call, they went to another club where defendant instructed her to watch the dancers and talked to her more about the private rooms.
When they returned to the car, defendant received another phone call from his friend who wanted strippers. Juliana told defendant she was not interested and that she wanted to go home. Defendant, however, told her that they were going to stop by the party because he needed to talk to his friend about how the strippers were doing.
Before they left San Francisco, defendant gave her some money that he said she earned at the club and told her she would get more money but he needed to go home and sort it out. He did not want to give her too much money because he did not want her boyfriend to become suspicious. He then asked her about the private rooms and whether she remembered “about knowing the dick, gaming the game.” Juliana said that she was not sure what he was talking about. Defendant replied, “I want to game you on the game. I want to train you on the dick.” He started to rub her leg and Juliana tried to push his hand away. He put Juliana’s hand in his pants, and she pulled away. Defendant unzipped his pants and said “let me just train you on the dick real quick. . . . The quicker we do this, the quicker we can get to San Jose.”
Juliana told defendant to take her home and that he could have the money. Defendant pulled her closer and told her that he wanted to train her on the dick so she could make more money in the back rooms. Juliana resisted and tried to pull away but defendant kept pulling her closer and telling her to kiss his penis and that it would be quick and she would get back to San Jose. She gave in and orally copulated defendant. She did not know what he would do if she refused and she wanted to get back to San Jose.
Defendant drove back to San Jose and took Juliana to his friend’s bachelor party. Juliana did not want to get out of the car and told defendant that she was not going to strip. She eventually got out of the car to go in the house to use the bathroom. She saw the strippers in a room across from the bathroom and went to talk to them. She wanted to tell them what had happened with defendant. Defendant, however, started to bang on the door and claimed that the strippers had cheated his friend. One of the strippers opened the door and started arguing with defendant. The strippers did not know defendant and asked Juliana why he was dressed like a pimp with a fur coat and a hat with a feather coming out of it. He tried to prevent the strippers from leaving but one of them called 911 so defendant let them leave.
She admitted that at the preliminary hearing she said she had not gotten out of the car. She did not want to admit going to the party because her boyfriend was present in the courtroom and she was afraid he would not understand.
Juliana returned home about 4:00 a.m. She was upset and crying. She had some abdominal and vaginal pain, some vaginal bleeding, pain in her inner thighs and sore wrists. She told her boyfriend a little bit about what happened and then fell asleep.
Juliana slept until about 2:30 or 3:00 p.m. Defendant had left her a message on her cell phone. He said he had some money for her and wanted to know if she was working Saturday night because it was a big money-making night. He left six messages for her on Saturday. An audiotape of the messages was played for the jury.
After the first message, Juliana, at the urging of Isaiah, called defendant back. Isaiah told her to pretend that nothing had happened. Defendant asked her if she was going to work that evening and offered to pay for a babysitter for Juliana’s son. Juliana said she would call him later. Isaiah answered one of defendant’s calls to Juliana later that evening and told defendant to stop calling. Defendant threatened to send his friend, Marcus, to their house. When Isaiah told him that they were on the way to the police station to report what happened, defendant said, “I’m going to have my boy Marcus meet you at the police department, then.”
Juliana decided to go to the police because she was afraid defendant would come after her. She had already seen his car drive past her house twice that day and she felt threatened. She went to the San Jose Police Department and was told that she would have to report the crimes in San Francisco and that she should take the clothing that she wore the previous night with her. She and Isaiah retrieved her clothing and went to the police department in San Francisco. After she made her report, she was taken to a hospital for an examination.
Isaiah testified that he met defendant in April 2005 when he accompanied Juliana to an interview. Defendant told him that Juliana would be going to San Francisco to hand out flyers at clubs and do promotional work. He told Isaiah he worked for the 94.9 radio station. Defendant asked him if he had ever considered modeling or dancing. Defendant tried to recruit him to be a Chippendale’s dancer or escort. Isaiah had a weird feeling and did not know whether to trust defendant. Juliana told Isaiah she would call him when she arrived in San Francisco. Isaiah tried calling Juliana numerous times that evening but did not reach her.
Isaiah did not see Juliana again until she returned home. She was “freaking out,” crying, and was emotional. She told Isaiah what had happened. Isaiah felt sick, angry, and scared. Isaiah told Juliana they would handle the situation in the morning.
Isaiah was out most of the day and returned home in the late afternoon. He had decided that they should report the incident to the police. Prior to leaving to go to the police station, Juliana told Isaiah that defendant had called her several times. Defendant called again and Isaiah answered the call. Defendant threatened Isaiah and Juliana and said that he was “going to have my boys come see you.” Defendant called again as they were on the way to the police station. Isaiah told him to stop calling and that they were on the way to the police department. Defendant said that he would have his boy Marcus meet them there. After making their initial report at the San Jose Police Department, they were directed to go to the San Francisco police where Juliana reported the incident.
Patrick Kanicki, the general manager of the Hustler Club, testified that Juliana filled out a job application on April 29, and that he told her that she would need to make an appointment to audition. The man that was with her was not allowed to enter the club with her because it was against the club’s policy.
Inspector Kenneth Stocker testified as an expert on the subject of vice crimes, specifically pimping and pandering. He testified that pimps often entice women into the prostitute business by telling them they own companies and they can make money modeling, entertaining or singing. Pimps will usually give potential recruits money and other things to get them under their control. Stocker noted that prostitution occurs on the street as well as in massage parlors and in private booths in strip clubs. Stocker testified that when a pimp says, “ ‘I want to see what I’m working with,’ ” he means he wants to have sex with her to make sure she can provide something for the customer. When a pimp says, “ ‘I want to game you on the game’ ” or “ ‘I want to train you on how to work the dick,’ ” he means he wants to show her how she is going to have sex, and how to do it right and quickly.
Ann Brennan, the nurse practitioner manager of the sexual assault medical examiners at San Francisco General Hospital, testified that the nurse who examined Juliana reviewed her medical examination records of May 1, 2005, and concluded that the examination was consistent with Juliana’s report of sexual assault.
Liezl H. testified that on September 17, 2002, she was 19 years old and working as a prostitute in San Francisco near 17th and Folsom Streets. At approximately 2:00 a.m.,defendant pulled up and stopped, and Liezl got into his car. She assumed defendant was a customer. He wanted to know what she was doing out on the streets and who had her working out there as a prostitute. Defendant did not ask to perform any sexual acts but started to drive toward San Jose. Liezl asked to be taken back to 17th Street but defendant refused. Liezl was scared because she did not know what defendant was going to do.
Defendant called someone on his cell phone while he was driving, and Liezl heard him say, “ ‘This bitch is mine.’ ” Liezl became nervous. Defendant told her to work with him and that he was going to show her how to make more money because he said she was doing it wrong. But he warned her not to “fuck with him.” Liezl was afraid that if she did something wrong, defendant would harm her.
Defendant took her to a hotel room in San Jose. She took a shower and defendant lay down on the bed. Liezl was afraid to leave because she believed defendant’s threats that something would happen to her if she made the wrong move. The following day, defendant gave her a red dress to wear and took her to the Department of Motor Vehicles (DMV) to get an identification card. She was too afraid to say anything to anyone at the DMV.
Defendant then took her to Berkeley and instructed her how much to charge, where to stand, and where to take the clients to park. He told her that after a date, she should put the money in his car, and that he was going to have people watching her. Liezl worked as a prostitute in Berkeley and gave the money to defendant as he instructed. Defendant subsequently took her to work on International Boulevard in Oakland. One of her customers took her to a motel where Liezl decided to stay in order to escape. Liezl called her mother and her boyfriend and told them she wanted to go home. While she was on the phone, she heard defendant come to the door and say, “ ‘put the phone down, bitch.’ ” She told her boyfriend that she was scared and he said he would call the police. Defendant then came into the room and hung up the phone, took the money she had earned from her purse, and tried to get her to leave. She stalled and by the time defendant got her to leave, the police arrived.
II. DISCUSSION
A Substantial Evidence Supports the Pandering Conviction
Defendant contends that the evidence is insufficient to support his conviction for pandering because the evidence is lacking that he enticed Juliana to be a prostitute. He argues the evidence showed that he was promoting her for adult entertainment, a legitimate and constitutionally protected activity.
In determining whether the evidence is sufficient to support the verdict, we must review “ ‘the whole record in the light most favorable to the judgment’ and decide ‘whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.)
In order to prove pandering, the prosecution must show that a defendant “[b]y promises, threats, violence, or by any device or scheme” caused, induced, persuaded or encouraged another person to become a prostitute. (§ 266i, subd. (a)(2); People v. Mathis (1985) 173 Cal.App.3d 1251, 1256.) “Implicit in the necessity of [the] elements of the crime is the inference of a specific intent to influence a person to become a prostitute.” (Mathis, at p. 1256, fn. omitted.)
Here, the evidence demonstrated that defendant encouraged Juliana to become a prostitute. He took her to the clubs to introduce her to the private rooms where he instructed her to engage in sexual acts to earn more money. He told her how much to charge for specific acts, and engaged in sexual activity with her to “train [her] on the dick” and “game [her] on the game.” Inspector Stocker testified that pimps used this language to explain or demonstrate to potential prostitutes how they wanted the prostitutes to work to maximize their income. Defendant also gave Juliana some money and told her he would pay her more after he had sorted it out. Stocker testified that pimps give potential recruits money to gain control over them. Defendant called Juliana repeatedly the following day to persuade her to work that evening, telling her it was the big money night, “like five hundred to a thousand dollars a night plus.” Given this record, substantial evidence supports defendant’s conviction.
Relying on People v. Hill (1980) 103 Cal.App.3d 525 and Wooten v. Superior Court (2001) 93 Cal.App.4th 422 (Wooten), defendant argues that enticing Juliana to dance in an adult entertainment club did not constitute pandering. In Hill, the defendant was charged with pimping and in defense testified that he had arranged to have a 17-year-old boy pose nude for an undercover officer and not for sexual acts. (Hill, supra, 103 Cal.App.3d at pp. 528-530.) The boy also testified that defendant called him to be a nude model. (Id. at p. 530.) The appellate court held that because the trial court failed to define the terms lewd and dissolute acts, the jury could have convicted defendant of pimping even if it believed his defense that the boy was to pose for nude photographs. The court determined that “for a ‘lewd’ or ‘dissolute’ act to constitute ‘prostitution,’ the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification . . . .” and hence that nude modeling for photographic purposes was not prostitution. (Id. at pp. 534-535.) Similarly, in Wooten, the court determined that the defendants did not commit pimping or pandering because the female employees of the strip club did not engage in prostitution but rather had sex with each other while customers paid to watch. Since the employees had no sexual contact with the customers, the court held that the defendants could not be found guilty of pimping or pandering. (Wooten, supra, 93 Cal.App.4th at p. 436.)
Here, by contrast, the evidence showed that defendant committed pandering by encouraging Juliana to engage in sexual contact with customers in the private booths or back rooms of strip clubs, acts which constitute prostitution. While defendant argues that he only sought to secure a job for Juliana as an exotic dancer or stripper, the evidence established that he explained how she would make more money in these clubs by committing acts of prostitution. The prosecution was not required to prove that Juliana actually became a prostitute, only that defendant, by his promises or threats, persuaded or encouraged her to become a prostitute. “[Section 266i, subdivision (a)(2)] includes under its coverage acts which simply ‘encourage’ someone to become a prostitute, whether or not the victim ever performs an act of prostitution at all.” (People v. DeLoach (1989) 207 Cal.App.3d 323, 333; see also Wooten, supra, 93 Cal.App.4th at p. 437 [pandering does not require a completed act of prostitution].)
Defendant’s argument that he was simply promoting adult entertainment and constitutionally protected activity is without merit. The evidence demonstrated that defendant’s purpose in having Juliana approach the adult entertainment clubs for employment was so that she could gain access to the private rooms where she could make more money. He not only told her what acts to perform in the private rooms, he gave her specific prices to charge for each one. Defendant did not encourage Juliana to simply be an exotic dancer, but urged her to engage in prostitution in the private rooms. Substantial evidence supports the jury’s verdict of pandering.
B. The Trial Court Was Not Required to Give a Sua Sponte Instruction Defining
a Lewd Act
Defendant next contends that the trial court erred by failing to instruct sua sponte on the definition of lewd act. He argues that the trial court should have given CALJIC No. 16.400 (2005 rev.) defining lewd act. We conclude that any error in failing to so instruct was harmless.
“ ‘ “In criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to [and] governing the case . . . .” ’ ” (People v. Freeman (1978) 22 Cal.3d 434, 437.) The general principles are “ ‘those principles closely and openly connected with the evidence adduced before the court which are necessary for the jury’s proper consideration of the case.’ ” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 609, p. 868.) This duty imposes an obligation to instruct on a defense when “ ‘ “it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense . . . .” ’ ” (Freeman, supra, 22 Cal.3d at p. 437.)
Here, however, the record discloses that defendant was not relying on the definition of lewd to defeat the pandering charge. Rather, he argued that Juliana was lying and that no pandering occurred. Indeed, in closing argument, defense counsel recognized that “[i]f you believe Julianna [sic] and these words were said, that might be a pandering.” The prosecutor’s argument further made clear to the jury that defendant’s actions, in taking Juliana on a tour of the private booths where he told her she could make more money by doing various sex acts, was the offense of pandering. The jury was correctly instructed on the elements of pandering. Defendant did not request any clarification to the instructions given nor did he advance the theory of the case on which he now relies. (See People v. Brunt (1972) 24 Cal.App.3d 945, 955-956.) On this record, the court was not required to give any instruction defining lewd act.
C. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of
Uncharged Crimes
Defendant argues that the trial court erred in admitting evidence that he pimped or pandered a 19-year-old girl in September 2002. He argues that the alleged prior offense was dissimilar and not significantly probative on the issue of his intent.
Evidence Code section 1101, subdivision (a) prohibits the admission of evidence of a person’s character “whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct.” The statute, however, permits admission of character evidence when it is relevant to establish some fact “(such as motive, opportunity, intent, preparation, plan, knowledge . . .) other than his or her disposition to commit such an act.” (Id., subd. (b).) “ ‘Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, the identity of the perpetrator of the charged crimes, the existence of a common design or plan, or the intent with which the perpetrator acted in the commission of the charged crimes.’ ” (People v. Catlin (2001) 26 Cal.4th 81, 111.) “We review the admission of evidence under Evidence Code section 1101 for an abuse of discretion.” (People v. Memro (1995) 11 Cal.4th 786, 864.)
Here, as the trial court found, the evidence of the defendant’s prior acts with Liezl was relevant to prove a common design or plan and to show defendant’s intent. There were several distinct similarities between the crimes. In each, defendant managed to get the young victim alone in his car, and it was not until the victims were in the car that they realized defendant wanted them to work as prostitutes to make more money. In both cases, defendant controlled the victims through threats and intimidation. Defendant also instructed the victims on how much to charge for sex, prevented them from going home, and isolated them in venues with which they were unfamiliar. The inferences supporting evidence of intent and common scheme were thus compelling.
D. The Prosecutor Did Not Commit Misconduct
Defendant contends that the prosecutor committed misconduct during closing argument by appealing to the juror’s racial stereotyping, by vouching for the complaining witness, and by using the evidence of uncharged acts to urge that he was of bad character. This contention does not withstand scrutiny.
“ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ ” (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill), quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.) Here, defendant did not object to the alleged misconduct below; we, however, review the issue to obviate a claim that his trial counsel was ineffective for failing to raise the issue in the trial court.
First, defendant complains that the prosecutor appealed to racial stereotyping by her argument that defendant dressed and spoke like a pimp. The prosecutor drew an analogy between a duck’s appearance and that of defendant: “Well, how about this: Instead of yellow feathers we have a fur coat and flashy clothes and a whole wardrobe of styling shoes. Instead of a bill we have a hat. Instead of webbed feet we have lots of styling shoes. Instead of a pond we have strip clubs and tracks, tracks where sex workers work. Instead of saying, ‘quack, quack,’ when he speaks he says, ‘I am going to check out what I am working with. I’m going to game you on the game. . . .’ [T]hat second scenario that I have just described is a pimp. . . .”
The prosecutor’s argument was fair comment on the evidence. “ ‘ “ ‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ” (Hill, supra, 17 Cal.4th at p. 819.) Here, Juliana testified to defendant’s appearance on the night of the incident and a photograph depicting defendant in similar dress was admitted into evidence. In addition, evidence of defendant’s statement inducing and encouraging Juliana to become a prostitute was before the jury. The evidence did not suggest any racial profiling, but simply commented on the state of the record. The prosecutor’s comments did not constitute misconduct.
Nor did the prosecutor commit misconduct by arguing that Juliana told the truth during the trial. Juliana’s alleged lack of credibility was the focus of the defense counsel’s closing argument. The prosecutor, in arguing that Juliana had told the truth during the trial, was not improperly vouching for Juliana’s credibility but was arguing against defense counsel’s attack on her credibility. The prosecutor’s argument was that Juliana had corrected her earlier error in judgment when she lied at the preliminary hearing by testifying truthfully at trial. It is not reasonably probable that the jury construed or applied the prosecutor’s complained-of remarks in an objectionable manner. (See People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.)
Defendant also argues that the prosecutor committed misconduct by commenting that “circumstantial evidence . . ., including an incident that Mr. Walker participated in a few years ago . . . shows his background” and by stating that he was a pimp with Liezl and “He hasn’t changed his colors.” He argues that these comments amounted to using the uncharged acts evidence to show bad character.
Contrary to defendant’s characterization of the comments, the record shows that the prosecutor mentioned the prior incident with Liezl, not to show defendant’s propensity or bad character, but to demonstrate his intent in this case. In commenting on the prior incident the prosecutor, said that it “shows his background. It shows what his intent is in this case.” Even if we were to construe the prosecutor’s argument as defendant suggests, we cannot conclude that defendant was prejudiced by the prosecutor’s brief remarks on the prior incident. Prosecutorial misconduct requires reversal only when, viewing the record as a whole, it results in a miscarriage of justice. (People v. Green (1980) 27 Cal.3d 1, 29.)
E. The Trial Court Properly Imposed the Aggravated Term
The trial court sentenced defendant to a total term of 12 years, imposing the upper term of six years on the pandering offense and doubling that term based on defendant’s prior strike conviction. Defendant contends that the court’s sentence violates Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856; 127 S.Ct. 856] (Cunningham) because the sentencing decision was based on facts neither admitted by him nor found true by a jury.
In Cunningham, the United States Supreme Court held that imposition of an upper term sentence under California’s determinate sentencing law violates the Sixth Amendment because it permits trial courts to impose the sentences based on aggravating factors found true using only a preponderance of the evidence standard. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 876; 127 S.Ct. at p. 871], fn. omitted.) The court, however, indicated that trial courts may determine the fact of a defendant’s prior conviction. “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Id., 549 U.S. at p. ___ [166 L.Ed.2d at p. 864; 127 S.Ct. at p. 860], italics added.)
Our Supreme Court recently addressed Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black). The court held that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) Because “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law, “if one aggravating circumstance has been established in accordance with the constitutional requirements . . ., the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Black, at p. 813, fn. omitted.) The court further held that the Sixth Amendment does not confer a right to a jury trial on either “the fact that a prior conviction occurred” or “other related issues that may be determined by examining the records of the prior convictions. [Citations.]” (Black, at p. 819.) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], 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.’ ” (Id. at pp. 819-820.)
Cunningham error is reviewed under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24, as applied in Neder v. United States (1999) 527 U.S. 1, 17. (People v. Sandoval (2007) 41 Cal.4th 825, 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
Here, the trial court found the following factors in aggravation: (1) The victim was particularly vulnerable; (2) the manner in which the crime was carried out indicates planning, sophistication and professionalism; (3) defendant took advantage of a position of trust or confidence; (4) defendant’s prior convictions as an adult are numerous; and (5) defendant served a prior prison term. The fact that defendant served a prior prison term was sufficient to support imposition of the aggravated term on the pandering offense. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864; 127 S.Ct. at p. 860]; Black, supra, 41 Cal.4th at pp. 819-820.) Since defendant did not have a right to a jury trial on the fact of his prior conviction, the court did not violate Cunningham in imposing the aggravated term.
In his reply brief, defendant suggests that the court could not use defendant’s prior conviction to both aggravate the sentence and double his sentence for the same reason. While the dual-use-of-facts doctrine precludes the use of a fact underlying an enhancement to impose an upper term sentence and an enhanced term (§ 1170, subd. (b); Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 868; 127 S.Ct. at p. 863]), section 667, subdivision (e)(1) is not an enhancement. “ ‘Instead, it defines the term for the crime itself, supplanting the term that would apply but for the prior serious or violent felony.’ [Citation.] . . . ‘The legislative determination, that under these circumstances the base term is doubled, does not constitute an enhancement. Instead, it is the articulation of a parallel sentencing scheme for specifically described recidivists.’ [Citation.]” (People v. Nelson (1996) 42 Cal.App.4th 131, 141.)
Finally, we have considered the contentions raised by defendant in his letter brief concerning ineffective assistance of counsel, equal protection, prosecutorial misconduct, jurisdiction, and jury instructions. We have reviewed the entire record and conclude that the issues defendant seeks to raise are not meritorious. To the extent defendant’s letter can be construed as a request to substitute appellate counsel, we decline the request.
III. DISPOSITION
The judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.