Opinion
D075934
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. JEREMIAH BANKS, Defendant and Appellant.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB1404047-1) APPEAL from a judgment of the Superior Court of San Bernardino County, Steve Malone, Judge. Affirmed as modified. Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found Jeremiah Banks guilty of one count of human trafficking of a minor (Pen. Code, § 236.1, subd. (c); count 1), one count of pimping a minor under 16 years of age (§ 266h, subd. (b)(2); count 2), and one count of pandering by procuring a minor under 16 years of age (§ 266i, subd. (b)(2); count 3). The jury found true allegations Banks used force or fear during the commission of count 1 (§ 236.1, subd. (c)(2)), and, as to counts 1-3, suffered a prior conviction within the meaning of section 12022.5. The trial court sentenced Banks to an aggregate term of 30 years to life.
All further statutory references are to the Penal Code unless otherwise noted.
On appeal, Banks contends the trial court erred in permitting the People to introduce evidence of a prior incident of pandering committed by Banks and prior statements made by the victim in this case. Further, Banks asks us to review for error the trial court's in camera assessment of peace officer personnel records. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
We conclude the trial court did not err in admitting the evidence at issue or in assessing the personnel records. We modify the judgment to correct a minor sentencing inaccuracy and affirm the judgment as modified.
II
BACKGROUND
For purposes of this section, we state the evidence in the light most favorable to the judgment. (People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)
A
In the summer of 2014, 15-year-old Jane Doe moved in with a friend in an apartment complex. Banks lived in a neighboring apartment and invited Jane over one evening. She accepted the invitation, smoked marijuana and drank alcohol with Banks and nine to 12 of his friends, and had sex with Banks in his bedroom. Later, several of his male friends entered the bedroom and engaged in group sex with Jane.
After that night, Jane began prostituting for Banks. He showed her advertisements for prostitution on a classified advertising website and taught her how to create and post her own advertisements. He taught her the language to use in her advertisements and how to pose for photographs. Further, he obtained clothing for her to wear in photographs and created her first prostitution advertisement. He also provided her cell phones to use to contact clients, taught her how to converse with clients, instructed her how much to charge for sex acts, booked motel rooms for her to use for prostitution, and drove her to clients or streets to search for clients. He was physically violent and verbally abusive with her, particularly when she was unable to procure a client. She provided him the money she received from her clients and, in return, stayed part time with him in his apartment.
Eventually, Jane stopped prostituting for Banks, stopped answering calls from him, and stopped going over to his apartment. In total, Jane performed 20 to 30 sex acts while prostituting under Banks's direction.
B
During the same summer as the events involving Jane, the Riverside County Sheriff's Department conducted an undercover sting operation in a nearby city during which it placed a prostitution advertisement on the same website Jane and Banks used to solicit clients for Jane. The advertisement stated a "Latin Princess" needed a "daddy" and was intended to solicit pimps in search of prostitutes to work for them.
Banks responded to the advertisement and showed up at a motel room occupied by a deputy posing as an undercover prostitute. In a recorded conversation, he asked the deputy if he "look[e]d like a trick to [her]," to which she replied, "No." He asked whether she was "looking for a daddy" and if she was "working on [her] own ...." He then asked if she had paid for the motel room and said, "You on my program all this shit got to go. Like everything. [¶] ... [¶] ... [W]e could wrap this shit up and you could come with me right now cause I got everything. You don't have to worry about nothing. [¶] ... [¶] ... I'm telling you if you pay my pockets right you will be straight. Do you understand what I'm saying? [¶] ... [¶] You will be taken care of fully, point, to the top to the tee. My other bitch taken care of. You feel me? [¶] ... [¶] ... I'm a give you a choosing fee." The deputy asked if she would be provided protection and Banks replied, "You get all, you get all that, do you hear me? Once you pay me, I'm a tell you exactly what you gone get."
Shortly after, deputies entered the motel room and arrested Banks. In a postarrest interview, he told the interviewing deputy he responded to the advertisement to find a girl to "take care" of him, not to prostitute for him. He claimed he believed the term "daddy" meant "sugar daddy," but later admitted he knew the term referred to a pimp. In a separate proceeding from the instant case, Banks was prosecuted for his conduct during the undercover sting operation and accepted a plea agreement for pandering (§ 266i).
III
DISCUSSION
A
Prior to trial, the People filed a motion in limine to introduce evidence of Banks's pandering of the undercover deputy. They argued it was relevant to prove his motive to pimp and pander, intent to traffic Jane, and knowledge of the pimping culture. Banks opposed the request on grounds that: (1) the pandering incident was not sufficiently similar to the acts alleged in the instant case to support an inference of motive, intent, or knowledge; and (2) the probative value of the evidence was substantially outweighed by the probability its admission would create undue prejudice. The trial court found the evidence was prejudicial, but granted the motion. It reasoned the pandering incident was "similar" to the conduct charged in the present case and "highly relevant" because both incidents occurred "close in time" and involved "defendant contact[ing] someone for the express purpose [of] procur[ing] that person as a prostitute." Banks challenges the admission of the evidence concerning his pandering of the undercover deputy.
" 'Character evidence, sometimes described as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a specified occasion.' " (People v. Leon (2015) 61 Cal.4th 569, 597 (Leon); Evid. Code, § 1101, subd. (a).) "The purpose of this rule is to avoid placing an accused in the position of defending against crimes for which he has not been charged and to avoid having a jury convict him on prejudicial character evidence alone." (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 430.)
However, evidence that a person committed a crime, civil wrong, or other act (hereinafter, uncharged misconduct) may be admitted to prove a material fact other than the person's predisposition to commit such an act, including the person's intent or common plan, among other facts. (Evid. Code, § 1101, subd. (b).) "As long as there is a direct relationship between the [uncharged misconduct] and an element of the charged offense, introduction of that evidence is proper." (People v. Daniels (1991) 52 Cal.3d 815, 857.) A ruling on the admissibility of uncharged misconduct evidence is reviewed under an abuse of discretion standard. (People v. Rogers (2013) 57 Cal.4th 296, 326.)
"Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense. 'In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.' [Citation.] .... [¶] Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged. Unlike evidence used to prove intent, where the act is conceded or assumed, '[i]n proving design, the act is still undetermined....' " (People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2 (Ewoldt).)
"In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.] [¶] A greater degree of similarity is required in order to prove the existence of a common design or plan.... [I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' " (Ewoldt, supra, 7 Cal.4th at p. 402.) The common "plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (Id. at p. 403.)
Applying these standards, we conclude the trial court did not abuse its discretion in admitting the uncharged misconduct evidence at issue. The pandering incident involving the undercover deputy and the conduct alleged in the charged offenses were sufficiently similar and marked by common features from which it could be inferred that Banks: (1) had a common design or plan; and (2) acted with the requisite intent to violate the sex offenses specified in the human trafficking statute (§ 236.1, subd. (c)) and to influence Jane to become a prostitute (§ 266i, subd. (b)(2)). In both incidents, Banks used the same classified advertising website to further his conduct. In both incidents, he promised assistance to (as far as he knew) unaccompanied females in return for money. Additionally, both incidents occurred just one month apart and in close geographic proximity to one another. For all these reasons, the uncharged misconduct evidence was probative of both Banks's intent and the existence of a common plan.
The uncharged misconduct evidence was also relevant to show Banks knew Jane was a prostitute, which the prosecution was required to prove to sustain a conviction of the offense of pimping. (§ 266h, subd. (b)(2).) As the prosecution's expert in pimping, pandering, and prostitution opined, street-level pimps and prostitutes use language specific to their subculture. The uncharged misconduct evidence revealed Banks was conversant in this language, as well as pimping and pandering procedures. For instance, during the recorded sting operation, he referenced a "choosing fee" (a fee a prostitute pays a pimp to begin working for the pimp) and asked the undercover deputy whether he looked like a "trick" (a prostitute's client). In the interrogation following his arrest, he further explained a "daddy" was synonymous with a pimp. Such evidence was probative of Banks's familiarity with pimping culture, which could in turn be used to demonstrate his knowledge that Jane was a prostitute. (People v. Scally (2015) 243 Cal.App.4th 285, 293 [evidence showing defendant was "steeped in the pimping culture" admissible to show intent to pimp].)
If evidence of uncharged misconduct is sufficiently similar to the charged crimes to be probative of a material fact other than predisposition to commit a crime, " 'the trial court then must consider whether the probative value of the evidence "is 'substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " ' " (Leon, supra, 61 Cal.4th at p. 599; Evid. Code, § 352.) Here, the trial court found the uncharged misconduct evidence was prejudicial, but nevertheless admitted the evidence after concluding its "probative value outweighs the prejudicial effect." The trial court did not abuse its discretion in reaching this finding.
The probative value of the uncharged misconduct was quite high, as it showed Banks had used the same website he later used to advertise Jane's prostitution services. Further, the uncharged misconduct involved an adult female (the undercover deputy) and was no more inflammatory—and, in fact, was decidedly less inflammatory—than the charged offenses, which involved a 15-year-old victim. (Ewoldt, supra, 7 Cal.4th at p. 405.) Further, the guilty plea Banks entered for the uncharged misconduct minimized "the danger that the jury might have been inclined to punish defendant for the uncharged offenses, regardless whether it considered him guilty of the charged offenses ...." (Ibid.) Considering all these factors, we conclude the trial court did not abuse its discretion in admitting the evidence of Banks's pandering of the undercover deputy.
B
The prosecutor questioned Jane about the first night she went over to Banks's apartment, among other topics. Jane testified she did not remember numerous details about the evening, including whether Banks tried to persuade her to have sex with him or his friends, the number of men with whom she had sex that evening, whether he remained in the bedroom while she engaged in group sex with his friends, or the content of her conversations with him that evening or the following day. After Jane's testimony concluded, the prosecutor told the court she intended to call Officer Aaron Jones of the San Bernardino Police Department, who interviewed Jane on two occasions, to testify about statements she made to him during the interviews. She contended Jane's prior statements fell within an exception to the rule against hearsay, and were therefore admissible, because the prior statements were inconsistent with her in-court testimony.
Over defense counsel's objection, the trial court found "some inconsistencies" between Jane's prior statements and her in-court testimony, in which she claimed not to remember details about the night in question. Therefore, it permitted the prosecutor to call Officer Jones to testify about Jane's prior statements. Under questioning, Officer Jones then testified Jane had told him she did not want to have sex with Banks and he told her it would "be fun." Officer Jones further testified Jane had told him she was under the influence of alcohol and marijuana when she had sex with Banks and his friends.
The People assert Banks did not object with sufficient particularity to preserve his arguments regarding the admissibility of Officer Jones's testimony. We disagree. The trial court asked the prosecutor whether any witnesses would be called "to testify as to prior inconsistent statements" and the prosecutor replied that she intended to call Officer Jones, at which point Banks's counsel stated he was "vehemently opposed" to the testimony and the "Court would have to decide" whether Jane's prior statements were inconsistent with her trial testimony. Banks's stated opposition to the testimony adequately preserved the issue for our review.
" 'A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.' " (People v. Chism (2014) 58 Cal.4th 1266, 1294.) Banks contends the trial court erred in admitting Jane's prior statements on grounds that there was no inconsistency between Jane's prior statements and her trial testimony. According to Banks, Jane "truly did not remember" the evening she went to Banks's apartment during her trial testimony.
" 'Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However, ... [w]hen a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's "I don't remember" statements are evasive and untruthful, admission of his or her prior statements is proper.' " (People v. Ledesma (2006) 39 Cal.4th 641, 711 (Ledesma); see People v. Rodriguez (2014) 58 Cal.4th 587, 633 [no hearsay violation where record provided a "reasonable basis" for the conclusion that jail inmate's "repeated 'I don't recall' claims" were untruthful]; People v. Gonzalez (2006) 38 Cal.4th 932, 950 ["to the extent a claimed lack of memory amounts to deliberate evasion, as the court could readily have found here, inconsistency is implied"].)
There was ample basis in the record from which the trial court could have concluded Jane was evasive at trial when asserting lack of memory. Jane admitted she did not want to testify in the trial. She failed to comply with multiple prior subpoenas compelling her to appear and was in custody to compel her appearance. Further, her professed lack of memory concerned a topic she described as embarrassing and "very disturbing." For all these reasons, there was a "reasonable basis" for concluding that Jane's testimony was deliberately evasive. (Ledesma, supra, 39 Cal.4th at p. 712.)
C
Officer Jones testified as the prosecution's pimping, pandering, and prostitution expert and, as noted ante, relayed prior statements made by Jane during pretrial interviews. In the previous section, we concluded the trial court did not violate state hearsay law by permitting Officer Jones to testify about Jane's prior statements because they were prior inconsistent statements and therefore fell within a recognized exception to the hearsay rule. (Evid. Code, §§ 700, 1235.) Banks also contends the prior statements constituted testimonial hearsay, the admission of which violated his rights under the confrontation clause of the Sixth Amendment to the federal Constitution.
"The admission of ... testimony is governed not only by state evidence law, but also by the Sixth Amendment's confrontation clause, which provides that, '[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.' [Citation.] As the United States Supreme Court observed, 'this bedrock procedural guarantee applies to both federal and state prosecutions.' [Citations.] ' "The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination." ' " (People v. Sanchez (2016) 63 Cal.4th 665, 679.) The confrontation clause therefore guarantees that testimonial statements of witnesses absent from trial may be admitted in a criminal trial only where the declarant is unavailable and the criminal defendant has had a prior opportunity to cross-examine the declarant. (Crawford v. Washington (2004) 541 U.S. 36, 59, 68 (Crawford).)
Banks's confrontation clause argument fails for at least two reasons. Although Banks objected to the admission of testimony concerning Jane's prior statements as violative of state hearsay law, he did not assert a timely and specific objection on grounds that the prior statements violated the confrontation clause. Therefore, Banks has forfeited his confrontation clause argument. (People v. Redd (2010) 48 Cal.4th 691, 730 & fn. 19 [hearsay objection did not preserve confrontation clause objection].)
Banks's argument fails on the merits as well. As the Crawford decision makes clear, "when the declarant appears for cross-examination at trial, the [c]onfrontation [c]lause places no constraints at all on the use of his prior testimonial statements." (Crawford, supra, 541 U.S. at p. 59, fn. 9; see People v. Sanchez (2019) 7 Cal.5th 14, 42 [defendant's confrontation rights not violated because declarant was subject to cross-examination at trial]; People v. Clark (2011) 52 Cal.4th 856, 927 [same].) This is true even if the witness experiences an alleged lack of memory while testifying at trial. (Sanchez, at p. 42; Clark, at p. 927.) In the present case, Jane testified at trial and was subject to cross-examination. In fact, Banks's counsel cross-examined her extensively about the evening she went to Banks's apartment, including the discussions in which she engaged and her sexual encounters with Banks and his companions. Because Banks could (and did) cross-examine Jane at trial, there was no violation of the confrontation clause.
D
Banks filed a pretrial Pitchess motion requesting discovery of information relevant to certain misconduct allegations and complaints in the personnel records of two police officers: (1) Officer Aaron Jones, who interviewed Jane; and (2) Officer David Baughman, who assisted Officer Jones in the interview of Jane. The trial court found good cause to conduct an in camera review of documents relating to possible instances of coercive or abusive tactics as to alleged victims. It then conducted an in camera inspection of potentially relevant documents procured from the personnel files of the officers and found no discoverable materials.
The clerk of the superior court was unable to locate Banks's Pitchess motion and therefore did not include it in the clerk's transcript. We draw our description of the motion from the People's brief in opposition to the Pitchess motion. --------
In his appellate brief, Banks asks us to review the sealed in camera materials to determine whether the trial court properly exercised its discretion in concluding there were no discoverable materials. The People do not oppose this request.
"When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself." (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) "The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined." (Id. at p. 1229.)
We have independently reviewed the sealed record of the trial court's in camera proceeding. Based on that review, we conclude the trial court conducted the proper inquiry into the discovery of the police officers' personnel records, made an adequate record for our review, and correctly found there was no relevant information to disclose.
E
The trial court imposed an indeterminate sentence of 15 years to life for count 1 (§ 236.1, subd. (c)(2)), doubled to 30 years to life due to the prior strike; the upper term of 8 years for count 2 (§ 266h, subd. (b)(2)), doubled to 16 years due to the prior strike; and the upper term of 8 years for count 3 (§ 266i, subd. (b)(2)), doubled to 16 years due to the prior strike. It found section 654 applicable to counts 2 and 3 and stayed execution of the sentences for those counts. During the oral pronouncement of judgment, however, the court further indicated the stayed sentences for counts 2 and 3 were concurrent, even though execution of the sentences was stayed.
Banks contends the trial court erred in designating the sentences for counts 2 and 3 as concurrent because it stayed execution of the sentences under section 654. The People agree and ask us to modify the judgment accordingly.
The determination whether to stay execution of a sentence under section 654 precedes a determination regarding whether the sentence is concurrent or consecutive. (Cal. Rules of Court, rule 4.424.) If the court finds execution of the sentence must be stayed, there is no need to proceed further; the sentence is simply imposed in full and execution is stayed, with no determination made as to whether it is consecutive or concurrent. (See People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164 ["the imposition of a 'consecutive' and 'stayed' sentence would be meaningless because the stayed sentence would only operate if the principal count were eliminated"].)
In accordance with the foregoing principles, the trial court should have imposed the full sentences for counts 2 and 3 and stayed execution of the sentences without designating them concurrent or consecutive. Therefore, pursuant to our inherent authority to modify judgments (§ 1260), we strike the concurrent designation of the stayed sentences for counts 2 and 3.
IV
DISPOSITION
The judgment is modified to strike the concurrent designation of the stayed sentences for counts 2 and 3. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
McCONNELL, P.J. WE CONCUR: O'ROURKE, J. IRION, J.