Opinion
C077871
06-26-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL THOMAS BUSH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F02278)
A jury found defendant Daniel Thomas Bush guilty of pimping (Pen. Code, § 266h, subd. (a)) and pandering (§ 266i, subd. (a)(1)). In a bifurcated proceeding, the trial court found true allegations defendant served one prior prison term (§ 667.5, subd. (b)), had one prior strike (§ 667, subds. (b)-(i)), and committed the underlying offenses while released from custody on a primary offense (§ 12022.1). The trial court sentenced defendant to 13 years in state prison, consisting of 12 years (the upper term, doubled for the strike) for pimping, plus one year for the prior prison term enhancement. The trial court stayed defendant's sentence for pandering pursuant to section 654. The trial court imposed a consecutive two-year sentence for the on-bail enhancement and stayed its execution "pending the outcome of case ending 00585." (§ 12022.1, subd. (d).)
Further undesignated statutory references are to the Penal Code.
Subdivision (d) of section 12022.1 provides: "Whenever there is a conviction for the secondary offense and the enhancement is proved, and the person is sentenced on the secondary offense prior to the conviction of the primary offense, the imposition of the enhancement shall be stayed pending imposition of the sentence for the primary offense. The stay shall be lifted by the court hearing the primary offense at the time of sentencing for that offense and shall be recorded in the abstract of judgment. If the person is acquitted of the primary offense the stay shall be permanent." (Italics added.) Here, the trial court erroneously imposed an additional two years for the on-bail enhancement and stayed its execution. Pursuant to section 12022.1, subdivision (d), the court should not have imposed any sentence on the enhancement. We shall strike the two year on-bail enhancement and order the enhancement stayed in accordance with subdivision (d) of section 12022.1.
Defendant appeals, contending the prosecutor violated Brady v. Maryland (1963) 373 U.S. 83 ) (Brady) by failing to tell the defense that the complaining witness Jasmine Doe purportedly had been promised services, some of which had monetary value, by the prosecutor and victim advocate. He also asserts that the trial court erred in instructing the jury on the support element of the pimping offense, and that there is insufficient evidence to support his convictions for pimping and pandering. We shall modify the judgment by striking the two-year on-bail enhancement and order the enhancement stayed pursuant to subdivision (d) of section 12022.1, and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Jasmine Doe testified at trial under a grant of immunity. In the spring of 2014, Doe and defendant agreed to "team up" to "get money together." Doe would "bust dates," i.e., "having sex with strangers for money," and defendant would drive her to and from the dates. Doe was 20 years old at the time and had been working as a prostitute on and off for about five years. Doe's partnership with defendant lasted about two weeks. During that time, Doe went on six or seven dates and made about $400, $190 of which she gave to defendant. Defendant used the money he received from Doe to purchase things for Doe and her children, including clothing, food, and diapers. He also sometimes used the money to pay for his own needs, like food and gas. He did not use the money to pay for his clothing or personal items or for things for his family. On at least one occasion, Doe used her earnings to pay for a motel room where she and defendant spent the night. Doe did not consider defendant to be her pimp. He never told her that she had to have sex with anyone or demanded money from her. Doe had no idea where defendant got his money.
I
There Was No Brady Violation
Defendant first contends that the prosecutor violated Brady, supra, 373 U.S. 83, by failing to tell the defense that she and the victim advocate "met with [Doe] and promised her services, some of which had monetary value." We are not persuaded.
Federal due process requires the prosecution to disclose evidence, within its custody or control, which is favorable to the defendant and material to guilt or punishment regardless of whether the defendant makes a request. (Brady, supra, 373 U.S. at p. 87 ; In re Brown (1998) 17 Cal.4th 873, 879, 884.) Any exculpatory evidence known to those acting on the state's behalf is imputed to the prosecution. (In re Brown, supra, 17 Cal.4th at pp. 878, 879-880, 883.) "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 302].) A Brady violation is demonstrated " 'by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' [Citation.]" (In re Brown, supra, 17 Cal.4th at p. 887.)
" 'We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence. [Citation.]' [Citation.]" (People v. Masters (2016) 62 Cal.4th 1019, 1067.)
Doe was taken into custody and held at the jail after she failed to appear as a witness in this case. Doe remained in custody when she testified at trial.
During cross-examination, Doe testified that she had been told by the victim advocate that, upon her release, she would be given certain services aimed at helping her turn her life around, including "some help with food [and] clothes," if she wanted to take advantage of such services. On redirect, she clarified that she was not "promised food or clothing or counseling in exchange for [her] testimony here . . . ." Rather, she was told that services would be available if she wanted them.
Following Doe's testimony, and outside the presence of the jury, defendant's trial counsel claimed that "as far as the meeting, as far as the offering of services, some [of] which had monetary value . . . it's Brady material." The trial court noted the objection and confirmed with the prosecutor that the information in question had been conveyed by "Victim Witness Services." The victim advocate, who was present, advised the trial court that no deal had been made between Doe and the district attorney's office; rather, the victim advocate had referred Doe to "Community Against Sexual Harm [(CASH)]. And they have closets, snacks, toiletries, stuff for young women in her situation."
After the parties rested but before closing arguments, defendant's trial counsel advised the court that Doe had given a statement to the defense investigator indicating that it was her "subjective belief" that the district attorney's office would provide her with money for her testimony and that her belief affected her testimony. Upon learning that Doe was outside the courtroom, the trial court had her brought in and placed under oath. On direct examination by defendant's trial counsel, Doe stated that when she previously testified, it was her understanding that one of the programs she was offered would provide her with money so long as her testimony was consistent with the "district attorney's theory of the case." She had not been told that "in any way," but rather, "[t]hat's how [she] felt." She could not say why she felt that way, only that she got that feeling during a meeting with the prosecutor.
When defense counsel finished questioning Doe, the trial court asked her what she understood defense counsel to mean when he said "DA's theory of the case." Doe responded that it was her understanding that she "would get the programs" if she testified, but that she was not required to testify in any particular way. She also stated that she did not change her testimony in response to any perceived promise on the part of the district attorney. Rather, had she known that she would not receive money or programs for testifying, she would not have testified "because as everybody know, I like the defendant and I wouldn't jeopardize his life like that." Immediately thereafter, however, she said that her testimony "[p]robably" would not have been the same but was unable to say how it would have differed.
On cross-examination by the prosecutor, Doe testified that the prosecutor told her that she would be released from custody if she testified, and that she had testified to things that the prosecutor wanted to hear so that she could go home. She acknowledged that she told the same facts to the police on April 2, 2014, and that her statement had been recorded. After agreeing that she had told the truth when she testified before, she stated that she told "[h]alf of the truth." The court then asked her, "What part did you testify to last week that you believe was not truthful?" Doe responded, "I can't recall."
The trial court ruled that the defense could re-examine Doe but refused to limit any cross-examination to Doe's impression that she was promised services from the district attorney's office in exchange for her testimony. In particular, the court ruled that Doe could be impeached with her initial statement to police, which was made before she was in custody. After conferring with defendant, defendant's trial counsel informed the trial court that they had determined that recalling Doe would not be in defendant's best interest given "the scope of the direct and cross[-]examination" the court had indicated it would allow.
There was no Brady violation. First, there is no evidence that Doe was promised programs or money in exchange for her testimony. To the contrary, Doe testified that no one told her that she would be provided with money or programs if her testimony was consistent with the prosecutor's theory of the case. Rather, "[t]hat's how [she] felt." There also is no evidence that the prosecution, victim advocate, or anyone acting on the state's behalf was aware of Doe's subjective belief prior to trial. Absent such evidence, there can be no Brady violation.
At oral argument before this court, defendant's counsel relied extensively on the Ninth Circuit's recent decision in United States v. Yepiz (9th Cir. 2016) 844 F.3d 1070 for the proposition that the offer of services alone was sufficient to require disclosure under Brady. (Yepiz, at pp. 1074-1075.) In Yepiz, numerous defendants were convicted of various crimes following a jury trial in 2006. At that trial, the government's cooperating witness testified to having received $5,000 in cash from the government after he testified to the grand jury in that case. (Id. at p. 1074.) Three years later, however, the same cooperating witness testified at a subsequent trial that he had received roughly $100,000 to $200,000 in cash from different law enforcement agencies between 2004 and 2009, and was able to solicit paid work from those agencies whenever he wanted. (Id. at pp. 1074-1075.) The defendants in the first trial argued that the government violated Brady by failing to disclose the full extent of the benefits its witness received at trial. (Yepiz, at p. 1075.) The Ninth Circuit found the evidence was material and that it "could very well have resulted in the jury disbelieving all of [the witness's] testimony, which played an important role in the government's case." (Id. at p. 1076.) Here, Doe testified that she was told by a victim advocate that, upon her release from jail, services aimed at helping her turn her life around, including "some help with food [and] clothes," would be available if she wanted to take advantage of them. The victim advocate advised the trial court that she had referred Doe to a community organization that had "closets, snacks, toiletries, [and other] stuff for young women in her situation." In contrast to the information at issue in Yepiz, here the victim advocate merely referred Doe to a community service organization for help, should she want it. These facts are not at all similar to Yepiz, where the government agencies directly gave the witness large amounts of money and failed to disclose the payments.
II
The Trial Court Properly Instructed the Jury on the Meaning of "Support" as It Relates to
the Charge of Pimping
Defendant next contends that the trial court prejudicially erred "in giving incorrect and misleading instructions on an element of the offense of pimping . . . ." More particularly, he asserts that the trial court erred in instructing the jury that " '[i]n order to establish that the accused lived and derived support and maintenance from the earnings of the prostitute it is not necessary for the prosecution to prove that the money received by the defendant was actually expended for that purpose.' " The challenged instruction was proper.
"When . . . the jury asks a question about the meaning of an element of the crime, Penal Code section 1138 imposes on the trial court 'a "mandatory" duty to clear up any instructional confusion expressed by the jury.' [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 261.) "Where . . . the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1213, superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
"In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights. In making this determination we consider the specific language under challenge and, if necessary, the instructions as a whole." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.)
Defendant was convicted with violating section 266h, subdivision (a), which states that "any 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 . . . is guilty of . . . a felony." (Italics added.) The trial court initially instructed the jury pursuant to CALCRIM No. 1150, that a conviction for pimping required the prosecution to prove that "[t]he defendant knew that Jasmine Doe was a prostitute," and "[t]he money that Jasmine Doe earned as a prostitute supported the defendant, in whole or in part." During deliberations, the jury asked the trial court to define the terms "support" and "whole or in part." The jury also asked whether there is "a specific dollar amount that defines whole vs. part?" Over the defense's objection, the trial court responded, "For the offense charged in Count One, Pimping, the defendant must have derived support and maintenance from the earnings of the prostitute. There is no fixed dollar amount that defines whether someone derives support or maintenance from the earnings of the prostitute. It is not necessary that the defendant's living expenses or necessities of life be fully or exclusively paid for by the proceeds of the earnings of the prostitute. It is only necessary that the defendant derive some amount of support from those earnings. In order to establish that the accused lived and derived support and maintenance from the earnings of the prostitute it is not necessary for the prosecution to prove that the money received by the defendant was actually expended for that purpose. Any earnings possessed by the defendant for the purpose of supporting the prostitute are not earnings used to support and maintain the defendant. Whether the defendant was wealthy or had sufficient income from other legitimate sources is not determinative as to whether the defendant derived support from such earnings." (Italics added.)
Defendant takes issue with the following portion of the trial court's statement, "In order to establish that the accused lived and derived support and maintenance from the earnings of the prostitute it is not necessary for the prosecution to prove that the money received by the defendant was actually expended for that purpose." He claims that the statement is legally incorrect and "allowed the jury to convict if [defendant] just took and held the money." Without any citation to legal authority, defendant urges that a "defendant must have already used the money to pay for something to support himself, not just intended to use the money for that." We are not persuaded.
The challenged portion of the trial court's instruction was taken from People v. Giambone (1953) 119 Cal.App.2d 338, 340 (Giambone), questioned on another ground in People v. Smith (1955) 44 Cal.2d 77, 80-81. In that case, the defendant helped arrange a couple of "dates" for a prostitute, who then gave the defendant a portion of her earnings. (Giambone, at p. 339.) The defendant also offered to sell the prostitute a book of names for a significantly discounted price because "he was 'busted' and in need of money." (Id. at p. 340.) When defendant was arrested, he had $25.67, and admitted to the officers that he received $25 of that amount from the prostitute. (Ibid.) The defendant did not dispute the above facts. (Ibid.) Rather, he claimed to have previously paid $50 to a doctor for medical treatment for the prostitute, and that the money he received from her was merely reimbursement. (Ibid.) The prostitute testified that there was no arrangement for her to reimburse the defendant. (Ibid.) In appealing his pimping conviction, the defendant argued that "it was not proved that he received the money for his support or maintenance, in whole or in part, and that having advanced money for the girl its return was a legitimate business transaction." (Ibid.) In affirming the defendant's conviction, the appellate court found, "In order to establish that the accused lived and derived support and maintenance from the earnings of prostitution it is not necessary for the prosecution to prove that the money was expended for that purpose. (People v. Navarro [(1922)] 60 Cal.App. 180.)" (Giambone, at p. 340, italics added.) The court determined that defendant's admission to police that he received $25 from the prostitute along with his statement that he was " 'busted' and in need of money" was sufficient to justify an inference that the defendant received the money for his partial support and maintenance. (Ibid.) The court explained, "That he was in need of money for the necessities of life appeared from his own statement, if, indeed, such an inference was not reasonably to be drawn from the fact that he was engaged in the nefarious business described. Although he took the stand he did not testify that he was employed or had any means of livelihood other than half of the money the girl received from customers which he supplied. From the undisputed evidence and defendant's admissions he appeared to be a person who was living in whole or in part on the earnings of a prostitute." (Id. at pp. 340-341.)
We reject defendant's claim that Giambone is not good law because "[t]he quotation about expending is not in the opinion of Navarro." In concluding there was sufficient evidence that "the appellant did 'live and derive support and maintenance in whole or in part from the earnings and proceeds of the prostitution' of the prosecutrix," the Navarro court found: "[T]he evidence is that prior to the time when the appellant and the prosecutrix entered into their relation he had been engaged in the business of driving a jitney bus from which he obtained his support and maintenance. The prosecutrix testified that when he went to live with her he abandoned this occupation and was engaged solely in soliciting for her; that he appropriated to himself all the earnings of the prosecutrix, which were unquestionably proceeds of her prostitution. It was shown that, during the period of their cohabitation, the appellant paid the room rent and purchased some meals for the prosecutrix and himself. It was not necessary to show that the money he received from her was used solely to pay his own living expenses." (People v. Navarro, supra, 60 Cal.App. at pp. 181-182.) That holding provides some support for the Giambone court's ruling that "[i]n order to establish that the accused lived and derived support and maintenance from the earnings of prostitution it is not necessary for the prosecution to prove that the money was expended for that purpose." (Giambone, supra, 119 Cal.App.2d at p. 340.) That Navarro's holding does not match Giambone does not undermine the efficacy of Giambone. --------
Giambone stands for the proposition that the prosecution need not show that the defendant expended the earnings or proceeds of a person's prostitution on the defendant's support or maintenance in order to establish that the defendant derived his support and maintenance in whole or in part from those earnings. (Giambone, supra, 119 Cal.App.2d at p. 340.) Where, as in Giambone, there is evidence the defendant received money from a prostitute while having no other means of support, it may be inferred that the defendant derived support or maintenance, in whole or in part, from the earnings of the prostitute. (Id. at pp. 340-341.) The challenged instruction was a legally correct statement of the law.
Contrary to defendant's assertion, this court's decision in People v. Coronado (1949) 90 Cal.App.2d 762 (Coronado), does not conflict with Giambone or the trial court's instruction in this case. In that case, the defendant claimed that there was insufficient evidence that he "derived his support or maintenance, in part, or at all, from the earnings of prostitution" because "his income was adequate from other legitimate sources to fully pay for his support and maintenance." (Coronado, at p. 764.) We concluded that the evidence was sufficient because the defendant admitted that he spent a portion of the prostitute's earnings on gas and oil for his car. (Id. at p. 766.) As for the defendant's argument concerning his other sources of support, we explained, "There is no merit in the contention that the appellant may not be held to have acquired support or maintenance, in part, for the alleged reason that his income from other legitimate sources was adequate to support him, and that the earnings of the prostitute were not applied to his necessary support or maintenance. The evidence in this case does not furnish satisfactory proof that his income was adequate to defray wholly the cost of his support. But even if it did establish that fact, the statute contains no such qualification or limitation. The words 'necessary support' are not used in the act. We assume that if such earnings are received knowingly and applied to the support of the accused person, under the circumstances mentioned in the statute, he would be guilty of pimping regardless of his wealth, possessions or legitimate income from other sources. . . . We do not think the act was intended to favor opulent pimps over impecunious ones." (Id. at pp. 766-767.)
Coronado stands for the proposition that the prosecution need not show that the earnings of the prostitute were necessary for defendant's support and maintenance in order to establish the defendant derived support or maintenance from such earnings. (Coronado, supra, 90 Cal.App.2d at p. 766.) While there was evidence in that case that the defendant had expended a portion of the prostitute's earnings on gas and oil for his car, we did not hold that such evidence was required to support the defendant's conviction. (Id. at pp. 765-766.)
In sum, Giambone remains good law (see People v. Jackson (1980) 114 Cal.App.3d 207, 210) and the trial court did not err in instructing the jury in accordance therewith.
III
Defendant's Pimping Conviction Is Supported by Sufficient Evidence Defendant contends his pimping conviction must be reversed because "there was not substantial evidence he derived support from money made by Jasmine [Doe] in her prostitution activities." He is mistaken.
In evaluating the sufficiency of the evidence underlying a conviction, we ask only whether there was enough credible evidence of solid value for a rational jury to find the defendant guilty beyond a reasonable doubt. (People v. Shamblin (2015) 236 Cal.App.4th 1, 9.) We do so while viewing the record as a whole in the light most favorable to the jury's guilty verdict, which includes drawing all reasonable inferences and resolving all credibility determinations in favor of that verdict. (People v. Prunty (2015) 62 Cal.4th 59, 89.)
As detailed above, section 266h, subdivision (a) states that "any 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 . . . is guilty of . . . a felony."
Defendant does not dispute that he knew that Doe was a prostitute when they agreed to team up. Rather, he contends that there is insufficient evidence he derived support or maintenance from Doe's earnings as a prostitute. We disagree.
The evidence at trial showed that Doe earned approximately $400 from engaging in prostitution during her two-week partnership with defendant, and that she gave defendant $190 of her earnings. The evidence also showed that defendant sometimes used Doe's earnings to pay for his food and gas, and that Doe used her prostitution earnings to pay for a motel that she shared with defendant. The record contains ample evidence to support a finding that defendant derived support or maintenance, in whole or in part, from Doe's earnings as a prostitute. (See Navarro, supra, 60 Cal.App. at p. 182 [pimping conviction upheld where evidence showed defendant used proceeds from a prostitute's earnings to purchase rooms and meals for himself and the prostitute]; Coronado, supra, 90 Cal.App.2d at pp. 765-766 [pimping conviction upheld where evidence showed defendant used proceeds from a prostitute's earning to purchase oil and gas for his car].) That Doe's partnership with defendant lasted just two weeks is of no consequence. (See People v. Jackson, supra, 114 Cal.App.3d at pp. 208-210 [evidence defendant received $33 from single act of prostitution was sufficient to support finding defendant derived support from a prostitute's earnings].)
IV
Defendant's Pandering Conviction Is Supported by Sufficient Evidence
Lastly, defendant contends that his pandering conviction must be reversed because "there was not substantial evidence he persuaded [Doe] to be a prostitute or that he intended to influence her to be a prostitute." Again, he is mistaken.
As relevant here, pandering is the "[p]rocur[ing of] another person for the purpose of prostitution." (§ 266i, subd. (a)(1).) It requires no monetary gain. (Aguilera v. Superior Court of Los Angeles County (1969) 273 Cal.App.2d 848.) "[T]he term 'procure' means assisting, inducing, persuading or encouraging" a person to engage in prostitution. (People v. Schultz (1965) 238 Cal.App.2d 804, 812.) It does not matter that the person is a prostitute already. (People v. Zambia (2011) 51 Cal.4th 965, 977.)
There is ample evidence to support defendant's conviction for pandering. He entered into a partnership with Doe which enabled them to both make money from Doe's prostitution activities. He provided Doe with transportation specifically directed at facilitating her prostitution activities from which he benefitted. (People v. Hobson (1967) 255 Cal.App.2d 557, 561 [providing car for prostitution business was sufficient to show procurement].) He ran personal errands for her so she had time to do other things, such as engage in prostitution. He also ensured that she asked potential clients if they worked in law enforcement and texted with potential clients. On this record, a juror reasonably could infer that defendant encouraged Doe to and assisted Doe in engaging in acts of prostitution, and that he intended to do so.
DISPOSITION
The judgment is modified to strike the two-year on-bail enhancement and stay that enhancement pursuant to subdivision (d) of section 12022.1. The judgment is affirmed as modified.
/s/_________
Blease, Acting P. J. We concur:
/s/_________
Butz, J.
/s/_________
Duarte, J.