Opinion
G057644
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. KELAND SCOTT COLEMAN, Defendant and Appellant.
Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Paul M. Roadarmel, Jr., Blake Armstrong and Charles Sarosy, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF1357) OPINION Appeal from a judgment of the Superior Court of Orange County, Maria Hernandez, Judge. Affirmed as modified and remanded with directions. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Paul M. Roadarmel, Jr., Blake Armstrong and Charles Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Keland Scott Coleman appeals from the judgment of conviction entered after a jury found him guilty of human trafficking and several related offenses. Defendant contends the trial court erred by failing to instruct the jury on the lesser included offense of attempted human trafficking because evidence showed defendant was unsuccessful in his efforts to deprive D.B., a prostitute who worked for him, of her personal liberty. He also argues the abstract of judgment must be corrected to reflect that the trial court had stayed execution of sentence for three of defendant's convicted counts under Penal Code section 654.
All further statutory references are to the Penal Code unless otherwise specified.
We affirm the judgment as modified. Any error on the trial court's part in not instructing the jury on attempted human trafficking as a lesser included offense of human trafficking was harmless. Overwhelming evidence showed that over the course of at least a two-year period, defendant successfully used different means, including fear, duress, menace, coercion, and threats of unlawful injury to D.B. to restrain D.B.'s personal liberty in a substantial and sustained way. It is not reasonably probable that a result more favorable to defendant would have been reached had the court instructed the jury on attempted human trafficking.
During the pendency of this appeal, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, §1) (Senate Bill No. 136) amended section 667.5, subdivision (b) to limit the applicability of the prior prison term sentencing enhancement to sexually violent offenses defined by Welfare and Institutions Code section 6600, subdivision (b). Here, the trial court found true three prior prison term sentencing enhancement allegations contained in the amended information but struck those enhancements for purposes of sentencing. As Senate Bill No. 136 has retroactive effect, and defendant's convictions were not for sexually violent offenses as defined by Welfare and Institutions Code section 6600, subdivision (b), we strike the three prior prison term enhancements for all purposes and modify the judgment accordingly.
We remand to the trial court to correct the abstract of judgment to conform to the court's oral pronouncement of judgment to show the court stayed execution of sentence on counts 3, 5, and 6, as alleged in the amended information, under section 654.
FACTS
At the time of trial in 2018, D.B. was a 27-year-old woman who had worked "pretty continuous[ly]" as a prostitute since she was 16 years old. In 2015, D.B. met defendant at a marijuana dispensary; she thought he was "really cute" and felt "very much" attracted to him. D.B. and her friend accepted defendant's offer to give them a ride home. After defendant dropped D.B.'s friend off, D.B. asked defendant where they were going. Defendant told her, "to get some money."
Defendant took D.B. to a motel room where they posted prostitution-related ads on the internet. She did not get any prostitution "dates" that evening; defendant drove her home the next day.
The term "date," as used in the prostitution industry, means "an agreement between a prostitute and a sex purchaser for a sex act in exchange for money."
A few days later, defendant took D.B. to a "track" in Long Beach "to make money." She had one date and gave the money she earned to defendant. D.B. testified that at that point she was "messing with" defendant, meaning that she was "with" him and that she could only give the money she made from working to him. She stated when she first met defendant and started messing with him, he treated her very well; she did not work "really at all that much" and she enjoyed their romantic relationship. When she did work, but did not make much money, "it was okay." A couple of months into the relationship, she started to work every day.
A "track" is an area where prostitutes walk to solicit clients.
Eight to 12 months into the relationship, defendant began treating D.B. poorly. Defendant told her he wanted her to make $500 per day, seven days a week. D.B. did not want to work so much, but she could tell defendant wanted her to work more than she had been working by how he treated her. Defendant verbally abused D.B. and said negative things about her family. Defendant would tell D.B. that he was going to "dig up [her father's] grave and piss on him."
D.B. testified she was on drugs at that time, which might have accounted for how defendant was behaving.
Around the time she had met defendant, D.B.'s father had overdosed on heroin and fell into a coma; he ended up passing away.
Defendant also became violent and threatened D.B., although she insisted that he did not become violent because she had not made enough money; she testified he did not force her to go to work when she did not want to. She testified that defendant would verbally abuse her and make her physically uncomfortable when she did not make enough money. For example, when she wanted to go to sleep, defendant would pull off the bed covers, turn on the lights and the television, and say bad things about her to make it difficult for her to rest. Defendant called D.B. junky and scar face, and told her she was ugly and that he did not know why he was with her.
D.B. also testified she did not want to get defendant into trouble.
During the last two years of their three-and-one-half-year relationship, defendant was violent with D.B. two to three times a week. He would throw things at D.B., put her in a chokehold, and cover her mouth with his hands. D.B. testified that when she wanted to see her family, but had failed to achieve her $500 earning quota, defendant told her she could not see them.
D.B. also testified that from time to time she would leave defendant after concluding he did not love her and did not care about her. At least on one occasion, D.B. told defendant she did not want him anymore. D.B. testified that defendant would respond to her by leaving threatening text messages. Defendant would text D.B. that he was coming to find her and would cause her to be afraid he would hurt her. In text messages sent in June 2017, defendant stated, "Let me find you, bitch" and "ugly bitch. I know what you're doing, giving my dough away."
D.B. told a detective that when she attempted to leave defendant, he would find her through social media or word of mouth. D.B. testified she went back to defendant because she loved him but was also afraid of him. She testified she wanted to have a regular relationship with defendant and felt jealous when he would interact with other women. She did not want to work every day in prostitution. D.B. knew defendant was happy that she wanted to give him all of her money. When she would return to defendant after leaving him, however, his attitude toward her would be worse.
D.B. testified that defendant took her identification from her because she had a habit of losing it; she testified her prior preliminary hearing testimony that defendant had taken her identification to keep her from leaving was untrue. She admitted at trial, however, that on at least one occasion defendant took her identification to keep her from leaving.
Evidence was admitted that during a recorded conversation between defendant and D.B. shortly before trial, defendant told her: "Make sure you're on your shit and, just like I said, the whole thing is you've got to make the jurors believe you was lying the whole time, so you've got to let them know, oh, I have your ID's because you always lose them."
On another occasion, defendant used something sharp and cut D.B.'s leg, scarring her. D.B. thereafter texted him: "You cut me. I will never forgive you or want you anymore. You cut me."
In October 2017, D.B. texted defendant a "goodbye note" stating she was done with him, but later told him she loved him. Defendant sent her text messages stating: "If you don't have any dough for me when I pull up"; "Then you will never see me again on good terms"; "Fuck your dead dad, ugly bitch"; and "Watch your back. Heard you ran off with some pimp, drugs." D.B. testified that what defendant said worried her and she was afraid for her safety.
In March 2018, D.B. tried to leave defendant and he threatened to cut her. Defendant told D.B. to come back and that "he's going to fuck [her] life up if [she] didn't come back." He also told D.B. he was going to be looking for her, to "[w]atch when he runs into [her]," and that he was going to hurt her. He stated: "Come here or get hurt," and "[t]hat's why your punk ass got sliced up last time, bitch." He also texted, "Either you tell me where you are or I'm going to jump out on your shit and sit on your chest and cut you up."
In early May 2018, D.B. attempted to leave defendant and he tried to find her by calling her numerous times and sending her messages to answer her phone. He texted her a variety of threats and insults but also stated, "Nobody going to hurt you." He texted: "Don't be mad when you get what you got coming," and "Can't wait until you meet your dad" who defendant knew to be deceased. Defendant accused D.B. of snitching on him; D.B. testified she never snitched on him and that "[e]verything he's ever done to me, I never told."
Ultimately, defendant picked up D.B. and took her to a track in Orange County. On May 8, 2018, D.B. earned about $400 which she gave to defendant. D.B. stated defendant would get mad when she did not make $500.
On May 9, 2018, D.B. and defendant got into an argument, and D.B. mumbled something under her breath before she got into the car with defendant. As soon as she got into the front passenger seat of the car defendant, who was sitting in the driver's seat, hit D.B. on the side of her head "very hard." After defendant started to drive, D.B. attacked him by "hitting him all over" and scratching his face; defendant lost control of the wheel. While stopped at a light, defendant put D.B.'s seat belt on her and started driving without saying anything to her. D.B., who felt scared and thought that defendant was either going to leave her or hurt her, decided to jump out of the moving car. After a struggle with defendant, who held on to her shirt to try to keep her inside the car, a topless D.B. rolled out of the car, got up, and ran to a nearby car screaming for help. Defendant briefly stopped his car and then drove away.
Santa Ana Police Officer Luis Barragan provided expert witness testimony regarding the prostitution lifestyle. He testified about pimps using the strategy of the "boyfriend pimp" relationship to recruit prostitutes to work by using love or the prospect of a romantic relationship as inducement. Barragan testified that the "boyfriend pimp will seek out girls, make them believe there is a relationship between the two, a winer/diner, give her everything that she wants, find out what she lacks in her life. He gives her that. [¶] When he . . . realizes that they have a relationship, then he will turn into that pimp status and start telling her that for the benefit of the relationship she needs to go out and work and promise—and then because of the fruits of her labor, they are going to be rich and have houses and jewelry and money, and it is easier for the pimp to do that once he knows that she's totally in love with him." Barragan explained, "Once he has her committed, he will often times threaten her, tell her that if she leaves or if she doesn't follow the rules, she's basically going to be beat," and further noted the "threat of violence" is always part of the dynamic.
Barragan testified: "[L]ots of times a pimp will use psychological tendencies on the girl [by] telling her, nobody loves you, you don't have a home, I'm everything that you have, and she starts believing that, which makes it hard for her to run away." He further testified that typically, pimps possess the belongings of the prostitutes who work for them, including their identification cards, driver's licenses, and passports for two reasons. First, if a prostitute is contacted by the police, she has the ability to lie about her identity. Second, pimps possess prostitutes' identification documents because "[i]t is a sense of ownership. . . . They can't leave. It is the belief that they have that they can't leave because [the pimp is] holding [the prostitute's] documents." Barragan noted that a prostitute would have a difficult time getting a hotel room without showing her identification.
PROCEDURAL HISTORY
Defendant was charged in an amended information with one count each of kidnapping (§ 207, subd. (a)) (count 1), human trafficking (§ 236.1, subd. (b)) (count 2), criminal threats (§ 422, subd. (a)) (count 3), assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 4), pimping (§266h, subd. (a)) (count 5), and pandering (§ 266i, subd. (a)) (count 6). The amended information further alleged three prior prison term sentencing enhancements under section 667.5, subdivision (b).
The jury found defendant guilty on all counts as charged except for count 1; the jury found defendant not guilty of kidnapping but guilty of the lesser included offense of false imprisonment in violation of sections 236 and 237, subdivision (a). The trial court found the three prior prison term enhancement allegations true.
The trial court sentenced defendant to a total prison term of 21 years and eight months by imposing (1) the upper term of 20 years on count 2 (selected as the principal term); (2) an eight-month consecutive term on count 1; (3) a two-year concurrent middle term on count 3; (4) a consecutive one-year term on count 4; (5) a four-year concurrent term on count 5; and (6) a four-year concurrent term on count 6.
The trial court stayed execution of punishment on counts 3, 5, and 6 under section 654. The trial court also struck the three prior prison term enhancements under section 667.5, subdivision (b) for purposes of sentencing only. Defendant appealed.
DISCUSSION
I.
Even Assuming the Trial Court's Failure to Instruct the Jury on Attempted Human
Trafficking Constituted Error, Any Such Error Was Harmless.
Defendant contends the trial court erred by failing to instruct the jury on attempted human trafficking as a lesser included offense of human trafficking. The Attorney General concedes that the offense of attempted human trafficking is a lesser included offense of human trafficking but argues the court did not err by failing to so instruct the jury because insufficient evidence supported giving that instruction. The Attorney General also argues that even if the trial court erred, any error would be harmless.
The trial court is required to instruct the jury "sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) No such instruction is required, however, "on theories that have no such evidentiary support." (Ibid.) Therefore, an instruction on a lesser included offense is not required "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime" (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5), and no instruction is required when "there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged" (People v. Kraft (2000) 23 Cal.4th 978, 1063). "Speculation is insufficient to require the giving of an instruction on a lesser included offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
Defendant was charged in count 2 of the amended information with human trafficking in violation of section 236.1, subdivision (b), which provides in relevant part: "A person who deprives or violates the personal liberty of another with the intent to effect or maintain a violation of Section . . . 266h [pimping] is guilty of human trafficking and shall be punished by imprisonment in the state prison for 8, 14, or 20 years and a fine of not more than five hundred thousand dollars ($500,000)."
The jury was instructed on this offense with a modified version of CALCRIM No. 1243 which provided: "To prove that a defendant is guilty of this crime, the People must prove that:
"1. The defendant either deprived another person of personal liberty or violated that other person's personal liberty;
"AND
"2. When the defendant acted, he or she intended to commit or maintain a felony violation of Pimping (Penal Code Section 266h)[.]
The jury was instructed that in order to prove defendant was guilty of pimping in violation of section 266h, the prosecution must prove that (1) defendant knew D.B. was a prostitute and (2) "[t]he money or proceeds that [D.B.] earned as a prostitute supported defendant, in whole or in part." --------
"Depriving or violating another person's personal liberty, as used here, includes substantial and sustained restriction of another person's liberty accomplished through force, fear, duress, coercion, violence, or threat of unlawful injury to the victim or to another person under circumstances in which the person receiving or perceiving the threat reasonably believes that it is likely that the person making the threat would carry it out.
"Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that is enough to cause a reasonable person to do or submit to something that he or she would not otherwise do or submit to.
"Violence means using physical force that is greater than the force reasonably necessary to restrain someone.
"Menace means a verbal or physical threat of harm. The threat of harm may be express or implied.
"Coercion includes any scheme, plan, or pattern intended to cause a person to believe that failing to perform an act would result in serious harm to or physical restraint against someone else.
"When you decide whether the defendant used duress, used coercion, or deprived another person of personal liberty or violated that other person's personal liberty, consider all of the circumstances, including the age of the other person, and her relationship to the defendant."
We do not need to decide whether sufficient evidence supported instructing the jury on attempted human trafficking because, even if the trial court erred by failing to give that instruction, any such error was harmless.
Here, overwhelming evidence showed that, particularly during the last two years of their relationship, defendant restricted D.B.'s personal liberty in a substantial and sustained manner in a number of ways. First, D.B. lived under constant threat of violence at defendant's hand if she did not play by his rules and earn the minimum he set for her working as a prostitute. Although D.B. testified defendant did not become violent with her when she did not work or earn enough, he would get angry when she did not work as much as he wanted and was violent with D.B. two or three times per week.
Defendant coerced D.B. to work as a prostitute by controlling when she could see her family (e.g., when she earned her quota) and, on at least one occasion, by taking her identification to keep her from leaving. He would also make her living environment uncomfortable (e.g., he would remove bed covers, turn on lights and the television, and verbally abuse her) to keep her from resting when she did not work as much as he wanted.
D.B. testified that she was afraid of defendant; whenever she tried to leave him, he was always able to find her through word of mouth or social media. It was her fear of what he might do, concomitant with her expressed love for him, that would cause her to return and resume working for him. In addition, as chronicled in multiple text messages, defendant both routinely threatened to cause serious physical harm to D.B. by, for example, cutting her, and impliedly threatened to kill her by referencing her seeing her deceased father, if she did not do what he demanded. Given defendant's regular violent acts against D.B. during their relationship, D.B. reasonably believed it was likely defendant would carry out his threats.
On this record, even assuming the trial court had been required to instruct the jury on attempted human trafficking, any resulting error was harmless. It is not reasonably probable the jury would have reached a result more favorable to defendant had the trial court instructed the jury on attempted human trafficking. (People v. Watson (1956) 46 Cal.2d 818, 836-837; People v. Guyton (2018) 20 Cal.App.5th 499, 507-508.)
II.
We Modify the Judgment to Strike the Prior Prison Term Sentencing Enhancements for
All Purposes.
Effective January 1, 2020, Senate Bill No. 136 amended section 667.5, subdivision (b) to provide that the one-year prior prison term sentencing enhancement applies only for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Jennings (2019) 42 Cal.App.5th 664, 681; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341.) The record shows the trial court found true three prior prison term sentencing enhancement allegations set forth in the amended information, which the trial court thereafter struck for purposes of sentencing only.
As neither party raised this issue in the original appellate briefing, we invited the parties to file supplemental letter briefs on the impact of Senate Bill No. 136 on this appeal and whether this court should strike the prior prison term sentencing enhancements or remand for resentencing. In their respective letter briefs, both defendant and the Attorney General agree that Senate Bill No. 136 applies retroactively to defendant because his sentence is not final. (See People v. Jennings, supra, 42 Cal.App.5th at p. 682 ["Senate Bill No. 136's . . . amendment to section 667.5, subdivision (b) applies retroactively to all cases not yet final as of its January 1, 2020, effective date"]; People v. Lopez, supra, 42 Cal.App.5th at pp. 341-342 [applying Senate Bill No. 136 retroactively].) Both parties also agree that none of defendant's convictions underlying the prior prison term enhancement allegations constitutes a sexually violent offense identified in Welfare and Institutions Code section 6600, subdivision (b), and therefore the prior prison term sentencing enhancements are inapplicable to this case.
Defendant argues we should remand for full resentencing. The Attorney General argues that, because defendant's sentence did not include any prior prison term enhancements, there are no enhancements for this court to strike.
Although the trial court struck the three prior prison term sentencing enhancements for purposes of sentencing, at the sentencing hearing, the trial court confirmed its true findings as to those enhancements; the true findings on the enhancements are also confirmed in the court's minutes. As those enhancements cannot be true as to defendant given the change in the law, they must be stricken for all purposes. Because the sentence imposed by the trial court was not in error, and because the trial court is not vested with any new discretion regarding sentencing, there is no reason to remand the matter for resentencing. Defendant's argument that the trial court might not have imposed the upper 20-year sentence for the human trafficking count had it known the three one-year prior prison term sentencing enhancements were inapplicable is untenable. The trial court concluded a total prison term of 21 years and eight months was appropriate in this case. Nothing in the record suggests the court would have been inclined to impose the 14-year middle term on the human trafficking count, or otherwise make a different sentencing choice had it known the prior prison term sentencing enhancements, which it struck for purposes of sentencing, were inapplicable.
We therefore modify the judgment to strike the true findings as to the three prior prison term sentencing enhancements.
III.
The Abstract of Judgment Must Be Amended.
In his appellate opening brief, defendant argues the current abstract of judgment fails to state that execution of sentence on counts 3, 5, and 6 was stayed under section 654. At the sentencing hearing, the trial court imposed concurrent sentences on counts 3, 5, and 6 but then stated punishment on those counts was stayed under section 654. The abstract of judgment reflects the imposition of concurrent sentences on those counts but, next to each count, the box showing that execution of sentence had been stayed under section 654 is unchecked.
The Attorney General agrees that a corrected abstract of judgment should be prepared showing that the trial court stayed execution of sentence as to counts 3, 5, and 6.
It is "important that courts correct errors and omissions in abstracts of judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) A reviewing court may correct clerical errors at any time, sua sponte or at the request of a party. (Ibid.) For the reasons discussed, we remand to the trial court with directions that the court prepare an amended abstract of judgment that conforms to the oral pronouncement of judgment regarding the applicability of section 654 to counts 3, 5, and 6. (People v. Delgado (2008) 43 Cal.4th 1059, 1070 [where there is a conflict between the trial judge's oral imposition of judgment and the abstract of judgment, the oral imposition controls].)
DISPOSITION
The judgment is modified to strike the true findings as to defendant's three prior prison term sentencing enhancement allegations for all purposes; the judgment is affirmed as so modified. The trial court is directed to prepare an amended abstract of judgment that reflects the stay of execution of sentence on counts 3, 5, and 6 under section 654 and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.