Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIF128837. Carol S. Koppel, Judge. (Retired judge of the San Bernardino S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury convicted defendant Oneida Myra Aldape of pimping (Penal Code § 266h; a felony), pandering (§ 266i; a felony), solicitation of prostitution (§ 647, subd. (b); a misdemeanor), and false representation of identity to peace officer (§ 148.9; a misdemeanor). The court sentenced her to state prison for three years on count 1, with varying sentences on the remaining counts, to run concurrently. On appeal she argues her conviction for solicitation of prostitution must be reversed because it is a lesser included offense of pimping, and maintains there is insufficient evidence that she falsely represented her identity with the requisite evasive intent. Finding no merit to either contention, we affirm.
All further statutory references will be to the Penal Code unless otherwise indicated.
Defendant was initially charged only with pimping. After the start of trial, an amended information was filed, adding a second count for pandering. A second amended information was filed two days later, adding counts 3 and 4.
FACTUAL AND PROCEDURAL BACKGROUND
On an evening in March 2006, Enrique Galaviz drove to a Moreno Valley liquor store where prostitutes were known to congregate. He pulled into the parking lot, and as he got closer to the store, defendant approached his car. “‘I’m looking for a woman,’” he said. Defendant replied, “‘I can’t help you, but I think I know someone who can.’” After discussing with Galaviz his desire to hire a prostitute for a “blow job,” defendant introduced him to Sara Olson and said the price would be $40. Galaviz agreed and gave defendant $20. They all got into Galaviz’s car; defendant was in the front seat, while Olson sat in the rear, smoking methamphetamine. Galaviz then drove to the other side of the parking lot where the sex act was to take place.
At approximately 7:00 p.m. that evening, Deputy Jason Sevieri of the Riverside County Sheriff’s Department was on patrol in Moreno Valley. As he drove by the liquor store, he observed a man standing outside yelling and waving his arms at several persons in a parked car. Sevieri contacted the man, who indicated there were people in the car “smoking drugs.” As Sevieri approached the car, Galaviz rolled down his window. Noticing two other individuals inside the vehicle, Sevieri asked if any of them was on probation or parole. Olson responded that she was on probation, and the officer asked for her name in order to confirm her asserted status. Sevieri then asked defendant for her information, and when she gave him a name, he “ran” it—only to have it come back as “false.” Sevieri did, however, eventually learn defendant’s true identity.
Defendant, Galaviz, and Olson exited the car, after which Sevieri and Olson engaged in a conversation. Olson told Sevieri that defendant approached Galaviz as Galaviz pulled into the parking lot, that defendant introduced her to Galaviz, and that defendant and Galaviz worked out a transaction for a “blow job,” at a cost of $40. Olson also told Sevieri that defendant had been introducing her to people who would hire her as a prostitute, for which defendant would receive a percentage of her earnings. Olson explained that she used defendant as a pimp because “‘[i]t’s easier for [her] to do that than walking the streets.’”
At trial, Olson denied that defendant was her pimp or that she gave defendant any money. She also testified that she was so high that night that she did not remember what she told Sevieri.
DISCUSSION
A. Solicitation of prostitution is not a lesser included offense of pimping.
Defendant contends her conviction for solicitation of prostitution, which she asserts was based on the same facts and conduct as that for pimping, must be reversed because it is a lesser included offense of pimping. We disagree.
Section 266h, subdivision (a), states, in pertinent part: “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping . . . .”
The jury was instructed that to prove defendant guilty of pimping, “the People must prove that the defendant knew that Sara Olson was a prostitute; and two, money that Sara Olson earned as a prostitute supports the defendant in whole or in part or the defendant asked for payment or received payment for soliciting prostitution customers for Sara Olson . . . .”
Section 647, subdivision (b), provides that a person who “solicits or who agrees to engage in or who engages in any act of prostitution,” is guilty of a misdemeanor.
The jury was instructed that to prove defendant guilty of solicitation, “the People must prove that, one, the defendant requested that another person engage in an act of prostitution; and, two, the defendant intended to engage in an act of prostitution with the other person; and, three, the other person received communication containing the request. [¶] A person engages in an act of prostitution if he or she has sexual intercourse or does lewd acts to someone else in exchange for money or compensation.” The jury was also given an aiding and abetting instruction.
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); see also § 954.) However, “[a] judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.]” (Reed, at p. 1227; see also People v. Pearson (1986) 42 Cal.3d 351, 355.)
Ordinarily, one offense may be necessarily included in another under either of two tests. “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]” (Reed, supra, 38 Cal.4th at pp. 1227-1228.)
In Reed, however, the Supreme Court held that where the validity of multiple convictions is in issue, only the statutory elements test is to be used in determining whether an offense is necessarily included in another. The court explained: “The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. . . . But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses.” (Reed, supra, 38 Cal.4th at p. 1229.) Accordingly, our high court concluded: “Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes.” (Id. at p. 1231.)
The essence of defendant’s argument is that one cannot violate section 266h without also necessarily violating section 647. She maintains that a violation of section 266h requires solicitation for prostitution and receipt of compensation, whereas a violation of section 647, subdivision (b), requires only a solicitation for prostitution; thus, section 647, subdivision (b) is a lesser included offense within section 266h. Her reasoning is flawed.
The cases upon which she relies are inapposite. People v. McNulty (1988) 202 Cal.App.3d 624, 631 (McNulty) and People v. Smith (1955) 44 Cal.2d 77 (Smith) both stand for the proposition that there are two different ways in which an individual may be guilty of pimping. Yet, defendant takes the untenable position that the crime of pimping requires solicitation and receipt of compensation. As the People point out, in order to be guilty of pimping, a person needs knowledge that another person is a prostitute and he or she either (1) solicits customers for that person, or (2) derives a financial benefit (i.e., derives support or maintenance from that person’s earnings as a prostitute). Either element is needed; both are not required. Thus, a person may be convicted of pimping without ever having solicited prostitution.
McNulty holds that “if the accused has solicited for the prostitute and has solicited compensation even though he had not intended to receive compensation, he would nevertheless be guilty of pimping.” (McNulty, supra, at p. 632.) Smith holds that pimping may be committed “by the receipt of compensation for soliciting for a prostitute.” (Smith, supra, at p. 79.) Neither case, however, precludes finding an individual guilty of pimping by a means other than soliciting.
Defendant’s position stems from her failure to distinguish between the two tests utilized for determining whether an offense is necessarily included within another offense. As we have already indicated, only the statutory elements should be considered in deciding whether a defendant may be convicted of multiple charged crimes. (Reed, supra, 38 Cal.4th at p. 1231.)
Applying the statutory elements test here, there can be no question that solicitation of prostitution is not a lesser included offense of pimping. Although pimping can include solicitation, it need not. Indeed, the statutory elements for pimping do not necessarily include all of the elements for solicitation of prostitution.
We disagree with defendant’s position that if a defendant is guilty of pimping on the basis of deriving support or maintenance from a known prostitute’s earnings, he or she is also guilty on an aiding and abetting basis of the solicitation by which the prostitute makes her earnings. Thus, under “the lesser included offense principles, he may not be convicted of both offenses.” Defendant misconstrues the People’s position. Indeed, the People do not contend that solicitation cannot be committed by deriving support or maintenance from a known prostitute’s earnings as a prostitute. Rather, they assert only that a person may be convicted of pimping without ever having solicited prostitution. Thus, even if a defendant who is guilty of pimping by deriving support or maintenance from a known prostitute’s earnings is also guilty of solicitation on an aiding and abetting basis, the fact remains that, under the elements test, it would still have been unnecessary for that individual to solicit for purposes of the pimping statute.
B. Substantial evidence supports defendant’s conviction for falsely representing her identity to a peace officer.
Defendant contends the only evidence of the alleged falsity regarding the name she gave to Sevieri consisted of “objected-to hearsay, which should have been stricken,” and that without its admission, there was insufficient evidence to support the judgment. We disagree.
Section 148.9, subdivision (a), provides: “Any person who falsely represents himself or herself as another person or as a fictitious person to any peace officer . . . upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.” “The purpose of this law is to require the defendant to give ‘sufficient information to allow law enforcement to locate the person if he or she does not appear in court.’ [Citation.]” (In re Kelly W. (2002) 95 Cal.App.4th 468, 471 (Kelly W.).) To establish a violation of the statute, “the prosecution need only establish the act of impersonation before a peace officer upon a lawful detention or arrest, for the purpose of evading the process of the court or proper identification.” (People v. Robertson (1990) 223 Cal.App.3d 1277, 1281.)
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
At trial, upon questioning by the prosecutor, Sevieri testified that after learning that Olson was on probation, he “asked Ms. Aldape. She gave me a false name. I ran her name.” No objection was interposed. The following colloquy then took place:
“[PROSECUTOR:] Let me stop you right there. Do you remember the name she gave you.
“[SEVIERI:] I have it written in my notes.
“[PROSECUTOR:] If it would refresh your recollection, take a look at your report?
“[SEVIERI:] It’s not in my report.
“[PROSECUTOR:] Do you have those notes?
“[SEVIERI:] Do I have those notes here? No, I don’t.
“[PROSECUTOR:] Now, did it come back it was a false name?
“[SEVIERI:] Yes, it did.
“[DEFENSE COUNSEL]: Objection. Foundation.
“THE COURT: Overruled. You said you ran the name she gave you?
“[SEVIERI:] Yes, I did.
“[DEFENSE COUNSEL]: Objection. Hearsay.
“THE COURT: Overruled.
“[SEVIERI:] “The name that she gave me—actually there were several names she gave me. I was unable to find them. Every time she gave me a name and date of birth to our dispatcher, they would say they were UTL, meaning they were unable to find this person in the system. I actually had to contact a POP officer, Deputy Lamb. POP is a special unit which is an acronym that stands for ‘Problem Oriented Policing.’ They are deputies who basically contact transients on a daily basis. That’s all they do. I called him up, and I advised him who I had stopped, who was with the person, and I gave a brief description of what Ms. Aldape looked like, and he instantaneously called me and told me that’s Ms. Aldape.
“[DEFENSE COUNSEL:] Objection. Hearsay. I’d like the answer stricken.
“THE COURT: There is a motion to strike. It will go out. Lay the foundation.
“[PROSECUTOR:] Did you eventually learn this person’s name was Ms. Aldape?
“[SEVIERI:] Yes, I did.” Again, no objection was interposed.
Defendant argues that her attorney’s initial hearsay objection should have been sustained. In essence, she maintains that Sevieri’s statement that he “ran” her name and that it came back “false,” was offered for the truth of the matter asserted, i.e., that the name given by defendant was false, and that it should have been excluded as inadmissible hearsay. We cannot agree.
“Hearsay, of course, is evidence of an out-of-court statement offered by its proponent to prove what it states. [Citation.] Unless it comes within an exception, it is inadmissible. [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 185.)
Here, Sevieri did not testify that the dispatcher said that the name was false. Rather, he simply stated that he had learned the name was false. Thus, there was no out-of-court statement offered for its truth. As such, because Sevieri’s testimony was not hearsay, the court did not err in overruling defense counsel’s objection.
We therefore need not address the People’s assertion that the trial court used “potentially proper reasoning” in overruling defendant’s hearsay objection, i.e., that the testimony was admitted to show Sevieri’s state of mind in continuing to seek appellant’s identity—not to establish that the name given was false.
Defendant also contends “for a jury to properly convict a defendant of giving a false name or fictitious name, there must be evidence of the name given. Here, because there is no such evidence, reversal is required.” In a similar vein, noting that the prosecution presented no evidence as to her true name, defendant argues that without such evidence it was not possible to properly determine that the name she gave was a false or fictitious name. In other words, she argues that without evidence of both her true name and the name she gave to Sevieri, the jury could not have determined that the name she gave was actually false. She relies on Kelly W., supra, 95 Cal.App.4th at pp. 471-473 for the proposition that proof of the necessary evasive intent requires knowledge of the actual name given by the defendant.
We note that although the first and second amended informations charged defendant as Oneida Modesta Aldape, the original information also included 14 aliases.
Citing various appellate decisions in which the name given by the defendant happened to be revealed, defendant contends, “the relevant authorities demonstrate that, for a jury to properly convict a defendant of giving a false or fictitious name, there must be evidence of the name given.” Those cases do not so hold and we are aware of none that do.
In Kelly W., the defendant’s conviction for falsely identifying himself to a police officer was reversed. The defendant, whose name was shown on his birth certificate as “Kelly W.-K.”, had told the officer his name was “Kelly K.” Although court records identified him as “Kelly W.,” the prosecution presented no evidence that “Kelly W.” was the name he commonly used. (Kelly W., supra, 95 Cal.App.4th at p. 472.) Accordingly, the majority concluded that the prosecution “produced no evidence to show that Kelly K. was either a false name or another person” (ibid), and that it was “indisputable that Kelly did not represent himself as another person.” (Id. at p. 473.) A dissenting justice believed there was substantial evidence from which “[a] rational trier of fact could conclude that this was a false identification because Kelly W. did not use the name that appears on his birth certificate or the name he used in prior contacts with law enforcement and the juvenile courts. [Citation.] A rational trier of fact could also reasonably deduce that he used the false name because he was a fugitive . . . . The juvenile court judge could therefore rationally find beyond a reasonable doubt that appellant gave the police officer a false name with the requisite intent, in violation of Penal Code section 148.9, subdivision (a).” (Id. at p. 474.)
The circumstances in the present case are distinguishable from those in Kelly W. Here, the prosecution produced sufficient evidence that defendant falsely represented herself as another person. Indeed, although Sevieri could not recall the name which defendant gave to him, he testified that he learned that the name was false and that he eventually learned her true name. This was enough to establish that the name given—which obviously was not the same as defendant’s true name, which Sevieri ultimately ascertained—must have been false.
Further, we are reluctant to accept the premise, as urged by defendant, that in the absence of evidence of the precise name which she gave to Sevieri, it cannot be said that the statutory requirement of evasive intent was met. As defendant puts it, a “wrong name” may just be a name other than the person’s “official” name, in which case it is arguable that there is no bad intent in giving it. While there may well be situations in which defendant’s position would hold true, we are not convinced that this is one of them. In light of the particular circumstances surrounding Sevieri’s contact with defendant, we are confident that a rational trier of fact could reasonably deduce that defendant gave the deputy a name other than her true name with the express purpose of evading prosecution.
The People assert “[t]he fact that [defendant] provided multiple different names and dates of birth, aside from the results of the dispatch check, is sufficient evidence that she had evasive intent.” The People are referring to the deputy’s testimony, as quoted above, to the effect that defendant gave him several names and dates of birth which turned out to be false. That testimony, however, was stricken.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.
Moreover, as previously indicated, defense counsel also objected on foundational grounds to Sevieri’s testimony that the name given by defendant came back as a false name. While we believe the trial court erred in overruling that objection, defendant does not challenge that ruling on appeal.