Opinion
D071646
01-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES E. GARY, Defendant and Appellant.
Lindsey M. Ball, 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, Barry Carlton and Seth M. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. SCD266372 & SCS284551) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed. Lindsey M. Ball, 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, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant James E. Gary guilty of two counts of human trafficking involving victims Jane Doe 1 (count 1) and Jane Doe 2 (count 2), both minors (Pen. Code, § 236.1, subd. (c)). The court sentenced defendant to the middle term of eight years on count 1 and two years eight months on count 2, for a total term of 10 years 8 months.
Unless otherwise noted, all further statutory references are to the Penal Code.
The court simultaneously sentenced defendant to two concurrent three-year terms following his guilty plea in San Diego County Superior Court case No. SCS284551, where he was charged with assault with a firearm (§ 245, subd. (a)(2)), possession of a firearm by felon (§ 29800, subd. (a)(1)), and possession of concealed firearm in a vehicle (§ 25400, subd. (c)(1)) among other offenses. The victim in case No. SCS284551 was Doe 2's brother.
On appeal, defendant contends the court erred in failing to suppress under the Electronic Communications Privacy Act (§ 1546 et seq.) (Act) myriad jailhouse conversations between defendant and Jane Doe 1 recorded between January 24 and February 4, 2016, the content of which gave rise to the instant offense. He further contends the court erred in failing to instruct sua sponte that contributing to the delinquency of a minor was a lesser included offense of human trafficking in connection with count 2. Finally, he contends the court improperly relied on certain aggravating factors to impose the middle term on count 1. As we explain, we disagree with these contentions and affirm defendant's judgment of conviction.
The Legislature amended certain provisions of the Act effective January 1, 2017. (Amended by Stats. 2016, ch. 86 (S.B.1171), § 233, eff. Jan. 1, 2017; Stats. 2016, ch. 541 (S.B.1121), § 2, eff. Jan. 1, 2017.) Because the instant offenses involved conduct that took place in January and February 2016, we apply the provisions of the Act then applicable. (See People v. Hiscox (2006) 136 Cal.App.4th 253.)
FACTUAL OVERVIEW
In an emptied courtroom, Doe 1 testified she met defendant in 2015 at a trolley stop. At the time she was 15 years old and defendant was about 20 years old. Their "relationship" turned physical and included sexual intercourse.
Doe 1 testified she had a classmate in 8th grade who "always . . . came to school in new clothes." Doe 1's classmate disclosed she was able to buy such items because of prostitution. Doe 1's aunt also was a prostitute. At her classmate's suggestion, in the summer between 8th and 9th grade Doe 1 posted nude photographs of herself along with her telephone number on various Internet websites known for prostitution. Doe 1 received calls from her post and, along with her friend, went on "dates" where Doe 1 exchanged "sex" for money. Doe 1 estimated she went on between 10 and 20 such "dates" before she met defendant in 2015.
Doe 2 testified she also met defendant at a trolley stop in summer 2015 when she was 16 years old. Like Doe 1, Doe 2 also engaged in a "sexual relationship" with defendant. Doe 2 became a prostitute when she was 13 years old, after she learned school friends "were doing it" and because her mother had become ill. Doe 2 also used various Internet websites to meet "Johns."
The People's expert was Detective Joshua Stone of the San Diego Sheriff's Department who was assigned to the San Diego human trafficking task force. Detective Stone testified the term "John" referred to a "sex purchaser."
On January 23, 2016, defendant was arrested and incarcerated in an unrelated case involving Doe 2's brother. (See fn. 2, ante) Between January 24 and February 4, 2016, when he posted bail, defendant made 52 jailhouse calls, all of which were recorded. Several of these calls were played for the jury.
District Attorney Investigator Christine Penwell testified she reviewed each of the jailhouse calls made by defendant. Investigator Penwell used a specific pass code assigned to her as part of her law enforcement duties to access the jailhouse call system, then entered defendant's name, the specific "pin" corresponding to his "booking" number, and the time frame she wanted to review. Investigator Penwell next prepared a report and downloaded the phone calls to a disk. She also oversaw the preparation of transcripts of some of the calls, which were included in the appellate record.
As summarized post, in the first call from defendant to Doe 1 he immediately began discussing 74-year-old "Ron" or "Ronald Posner." Doe 1 testified that during this call defendant asked her to meet "Ron." Both Does 1 and 2 separately testified that they each engaged in intercourse with Posner. Posner gave Doe 1 about $500, which she used to bail defendant out of jail. At trial, Doe 1 claimed she allegedly did not have sex with Posner until after he gave her the bail money. Doe 2 referred to Posner as her "regular" customer and stated he gave her about $300 per "date" or "trick."
The record shows Posner testified at defendant's preliminary hearing after a grant of immunity. However, over the People's objection, Posner subsequently invoked his Fifth Amendment right against self-incrimination out of concern of possible federal prosecution. Because Posner was "not available" at trial, his preliminary hearing testimony was read to the jury.
As also summarized post, before each of the jailhouse calls an automated message warned the caller and recipient that the call was being recorded and was nonconfidential. The automated message advised that, if the caller and/or recipient did not agree to continue the call on such terms, they should "terminate" the call by hanging up.
January 24; 5:54 a.m.
This was the first of eight calls from defendant to Doe 1 on this day. As noted, Posner's name came up at the start of their conversation. Defendant stated that he knew Posner from a well-known social media website and that Posner was the "CEO of somethin'." The conversation then turned to defendant "sending" Doe 1 to Posner, where the "well ain't dry." Doe 1 responded that Posner "must be [i.e., a CEO], see he's trickin' and shit" and that if he "got that much money he trip—trippin' be on five bitches at the same time." Defendant then stated, "He got it. So, you feel me? I'm sending you somewhere where the well ain't dry, my nigger'. So you—you know, you should be good with that mouthpiece. Yeah and don't put my mother-fucking lips on nobody . . . nigger'." When Doe 1 responded, "Why would I do that?" defendant stated, "if that's what you gotta do—you gotta kiss a nigger' to get me out. Fuck it." (Italics added.)
Later in this call, Doe 1 told defendant, "Nobody needs help when they're about to get money. If you have a vagina and—and you want to be ho [i.e., a prostitute] so bad—go get your own money." Ostensibly referring to Doe 2, defendant responded: "Yeah, she don't know how to a—a talk to the phone on people—talk to the phone with people and like. . . . Shit, she just—she don't know really know what she doin'. If she was willing to do it—she don't know what she doin'." Defendant then repeatedly referred to Doe 2 as a "Pro ho" and stated he did not like Doe 2's friend "Dasia." Defendant told Doe 1 he became angry with Doe 2 because Doe 2 liked to hang out with Dasia, noting he "cut that shit off my nigger' 'cause she—she like to hang out with Dasia too much. I had to tell her about this shit a long time ago. Like—that she a little girl. She act like a little girl. You feel me? She take fuckin' all the money."
Defendant also complained that Dasia was "not up to par," that "she's gonna fuck your money up," and that if Dasia was willing to "work for less," she would make less. When Doe 1 responded "[e]xactly," defendant stated, "you know. You—you're degrading yourself. Like Dasia is a . . . little raunchy bitch . . . . That's not—you don't bring her around no real money." Defendant repeated there was "[n]o big money" with Dasia.
Ostensibly referencing what he had told Doe 2 and how she could make $500 every day as a prostitute, defendant stated Dasia was not "the type of person you bring over to that type of nigger' house. You feel me? . . . This ain't—this ain't the—this ain't easy. Dasia go—you feel me? Like I was tryin' to tell her [i.e., Doe 2] that—you try and fuck this . . . and this was—at this time nigger', this was $500 every morning—no . . . . You feel me? No question. No nigger' . . . this is just $500 every morning nigger—wake up and just bam! We goin' to the bank! You feel me? And then if you wonder why she had started changing. I told her before anything 'cause she used to have Dasia just come over, like when he [i.e., Posner] wasn't there and shit—tell me to come over and get money. But I was telling her like, 'Hey, you need to not. . . .' You know she just did little shit my nigger' and I'm like . . . I know, I know how a nigger's mind works."
Defendant went on that because Doe 2 hung out with Dasia, "Now he [i.e., Posner] think you [i.e., Doe 2] are the equivalent of that little bitch [i.e., Dasia] you brought over here. He feel like you ain't shit. He could treat you—you know what I'm sayin' nigger'? I was letting her, 'You could be $500 every day.' Now nigger' acting like he got excuse."
Defendant complained to Doe 1 that Dasia also was immature and he had no interest in spending time with her after his "bitch put in a night." He also stated he did not want to be seen with Dasia and risk "fuck[ing] up [his] reputation." Specifically, he stated if Dasia was to post "[l]ike naked . . . " "say she was to post—you feel me? . . . [w]hen somebody call the phone, alright. 'Hey we need to go get the money' like nigger' we'll be smokin' or something' and like nigger' I don't like sayin' if I nigger'—if I need to say somethin'—I don't need little bitch talkin' back to me—no none of that shit. You feel me? 'Cause I - hey you got a text or a call from whoever and we need to go over to wherever—you feel me? . . . And Dasia says, 'Oh after you get done doin' that, we should go out.' You know what I'm sayin'? Like—that be like bitch . . . first of all, I'm not—nigger.' My bitch put in a night so nigger' these community bitches can go get their nails and hair and feet and fuck all that. . . . Fuck all that. You fuck up my reputation for other bitches to get their nail and hair. . . . Nah. Hell no!" (Italics added.)
Doe 1 asked defendant if he "slap[ped]" Dasia. Defendant responded, "I ain't slapped Dasia but [Doe 2] got slapped. The only reason I ain't Dasia and I tried to let [Doe 2] know is . . . [Doe 2] . . . . Dasia don't know what she doin.' She wanna ho but she don't know what she doin' nigger'. She got like ten different pimps, five different niggers', and you know, a crush on every nigger' . . . But if a nigger' slap my bitch—I'ma come holler at you nigger'. I slapped that bitch nigger.' She don't even know—she don't even know what she doin' my nigger'. . . . I can't—I can't do—make no moves that make sense around that bitch. You feel me? She is just constantly doing the same dumb shit. Like I'm just like man, she fuck up the money in more ways than one."
Doe 2 at trial denied being "slapped" by defendant.
The conversation then turned to defendant advising Doe 1 how to use social media to contact Posner. Defendant told Doe 1 she needed to keep it "real professional": "When you message him, be like, 'Hey, you know . . . ' say 'What's up? Can you uh, you know—can we hang out sometime or what—you know?' And then when they get into that just . . . keep in mind that he is CEO and shit, so try and make . . . try to talk and you know, 'Oh yeah. I'll be busy until Wednesday.' 'Oh alright. Well, you wanna uh go out for lunch or somethin' Wednesday or around what time?' You know keep it real professional. Don't sound young, nigger'. But I just told you about Dasia. Just . . . nigger' don't do that shit, you know." (Italics added.)
Because Posner was Doe's 2 "regular," Doe 1 asked defendant why he did not call Doe 2 and "tell her that you prefer (unin[telligble]) . . . ." Defendant interrupted Doe 1 and said, "Nigger' she's not answerin' the phone . . . . So I'm telling you this second—the second she knew I was goin' to jail my nigger'. Like her whole agenda . . . I've seen it on her face. Her whole agenda changed . . . ."
9:38 a.m.
Shortly after this call began, Doe 1 asked defendant, "Did you call her?" referring to Doe 2. Defendant responded, "Yeah. She didn't pick up. Yeah, she definitely ignoring me . . . ." Defendant next rejected Doe 1's offer to call Doe 2 because he worried Doe 2 would become jealous, stating "Like I'm in charge of this—for sure gonna be pressed. You feel me? Nigger' she find out I'm fucking' with you again, she gonna be butt hurt like a mother-fucker, my nigger'."
Posner's name again came up during this call. Defendant asked Doe 1, "You feelin' Ronald . . . though?" and then stated, "Send him a uh . . . send him a prayer request." Doe 1 replied, "Yeah." Defendant then asked, "does it [i.e., social media] let ya poke people you're not friends with?" Doe 1 stated, "I don't know. I don't see him right now. Hold on." Doe 1 then said, "Let me message him right now." Doe 1 then asked defendant if he had Doe 2's number. Defendant reminded Doe 1 that if she called Doe 2, things would turn out "ugly."
The conversation next turned to an Internet "dating" or "escort" site. Doe 1 asked defendant how to find people on that site. Defendant instructed that people could be found under the category "Men Seeking Women," where, according to defendant, people may say "I'm looking for ya-da-ya-da-ya-da for how many hours for this? You know, sometimes it's like that but um . . . [¶] . . . for the—for the most part they be finding you and shit—but you can find them too. Like, but he [i.e., Posner] probably won't be on there under like . . . shit, Men Seeking Women or somethin'. Probably well . . . I mean you could check but I don't know. I don't think so . . . or like you go to Personals or Dating and just go to Men Seeking Women."
Doe 1 told defendant to hold on, as she had "poke[d] him [i.e., Posner]" while they were talking. Defendant said, "Huh?" to which Doe 1 repeated, "Yep. I'll poke him. There—I poked him." Defendant then stated, "Let's see how he'll poke ya back within like ten minutes," and then suggested Doe 1 "Ease [her] way up in there."
A few seconds later, Doe 1 told defendant "He poked me back!" Defendant responded, "I'm telling you—Ron is up and . . . . Nigger' if . . . oh shit! . . . Unless [Doe 2] is over there right now . . ." Doe 1 then asked if she should "poke him back or what?" to which defendant said, "Nah. Good mornin' with an emoji." Doe 1 agreed to "send it." Defendant then confirmed Doe 1 had "deleted all those young pictures though . . . Like you know, ones that make you look . . . young."
Doe 1 informed defendant she and Posner were text messaging and asked what she should write next. Defendant suggested she look at what Posner did for "work," including whether he was "CEO" and "ask[] him a question about his work or something. Be like, 'Hey, you know, like . . . Hey, what? You know, what you do? or like 'What's. . . you know.' Like or 'Hey stranger!' Like, 'Well, hey—hey stranger.' " Defendant predicted Posner would tire of Doe 2 and become interested in Doe 1, noting Doe 1 needed to "trust [him] —he like girls that look at you, my nigger'."
As she was viewing a picture of Posner on the Internet, Doe 1 complained Posner seemed "really old" and wondered if he was married. Defendant responded Posner was not married, and the picture likely was of "all the hoes he's been fuckin' with over time." Defendant reminded Doe 1 not to "over do it," noting Posner "sends cards and shit" to, and arranges cars for, the girls. When Doe 1 told defendant she was in downtown San Diego, he speculated that Posner would "probably go and try to send [her] a car right [then]."
Doe 1 informed defendant she had given Posner her location, and Posner responded, "that's close to me." Doe 1 then asked defendant how she should respond. Defendant replied, "Shit. Be like, 'Can you . . .' say be like um, 'Wanna pick . . . wanna or can you—can you pick me up or is too early?" A short time later, Doe 1 notified defendant that Posner wanted her to send "some pictures." Defendant instructed Doe 1 to "Say—say, 'Yeah, if you send me some. LOL.' " Defendant then said, "You want him to be playful with you, my nigger'. Let his guard down and shit, like you know what I'm sayin'? Open up my nigger." (Italics added.)
The record shows defendant recommended Doe 1 send Posner a "black and white" photograph from her own webpage, noting "when I look at that picture it makes me wanna really fuck the shit out you." Defendant also suggested Doe 1 use her phone around Posner and "mess up on purpose so that he can see you need a new phone . . . ." Defendant encouraged Doe 1, telling her, "it's gonna come eventually," since Doe 1 "look[e]d better than Doe 2. So I'm telling you within like a week you—whatever you want my nigger . . . a ride anywhere, phones . . . understand?" Doe 1 responded, "Alright. It's goin' to Ron's." A short time later, Doe 1 informed defendant that Posner sent her a text message saying, "Tell and show me more." When Doe 1 said Posner was "nosey," defendant laughed and said, "All in the business, huh?" (Italics added.) A minute later, the call timed out.
10:11 a.m.
Defendant called Doe 1 less than an hour later. Defendant immediately asked Doe 1, "What happened baby? What he [i.e., Posner] say?" Doe 1 responded that Posner asked, "How did you find me?" Defendant interpreted Posner's question to mean that "he feel—he feel like uh it's a set-up right now. He feel like [Doe 2] or uh the other little bitch—one of—one of the other little bitches he talking to is tryin' to set him up. But as soon as he feel comfortable . . . like you can't be doin' no weird shit when you go to—go to fuck with him and shit. You know what I'm sayin'? Make that nigger' feel comfortable and shit, man." (Italics added.) Defendant reminded Doe 1 he "really need[ed]" money to make bail and that he had gift cards she could sell "in an emergency."
10:47 a.m.
During this call, Doe 1 informed defendant that she and Posner had exchanged text messages; that she had asked Posner in a follow up message, "What do you want?" and "Where do you want to meet?"; and that Posner had asked her if she was "seeing someone" and where she lived. Defendant warned Doe 1 that she could not have "company" when she met Posner, that Posner already knew he "can't come over to wherever you at" because he "already know how shit go down"; and that he was asking Doe 1 this question because, per defendant, Posner "wanna know if you gonna come over to his condo or if you want to get cha a room." (Italics added.) When Doe 1 asked, "A room?" defendant replied, "Yeah, a room. He'll get ya a room somewhere" and "Oh shit. This shit is gonna help you get your nigger' outta jail." (Italics added.)
11:58 a.m.
In this call, Doe 1 informed defendant that Posner had not text messaged her back. Defendant expressed his desire to get out of jail, hold Doe 1 and "fuck" her. Doe 1 responded, "I'm gonna cry." Defendant replied, "No. No. No. No. No. No, don't cry. Get me out." (Italics added.)
Doe 1 inquired whether "Ron" had children. Defendant responded Posner did, but that Posner "be sayin' he's droppin' his daughter off, that won't be his daughters at the house. It'd be his little hoes he'd be fuckin' with." (Italics added.) When Doe 1 asked defendant how he knew that, defendant replied he had been at Posner's house with Doe 2, stating, "Cause man, I'm in constant . . . I've been posted outside that nigger's shit when he told [Doe 2] like, 'Wait—hold on.' Feel me 'cause I got the keys to that nigger's shit. And they got the same bitches bouncin' in and out and like [Doe 2] pulled up right when the bitches was leavin' or like—you know, little shit."
Doe 1 pondered whether Posner would take her to his house if his "kids" were there. Defendant, showing obvious familiarity with Posner's activities as it related to Doe 2, responded, "No. No. No. No. No. He—if he won't—if there's kids there—he won't take nobody over there. He'll let—he'll just let ya know like, 'Hey, I'm about to go get the kids' or 'I'm about to . . .' you know 'pick 'em up or drop 'em off' . . . ."
Next, Doe 1 on behalf of her friend asked defendant for some advice regarding how to "post" on a well-known dating Internet website. Defendant advised Doe 1 to take "some cute little pictures" and post them, and then look at "other girls' shit that's like, you know, kinda like around the same shit she workin' with," and to ensure she had a "better . . . description than everybody else and yeah—everybody clicks on your shit. You leave a number at the bottom and then people hit you up for massages or you know, whatever—whatever people are into." Defendant then advised Doe 1 that his "home girl used to make a lot of money off of Fetishes too. Like she used to go there and post under 'Fetishes.' Like they see a cute girl willin' to do some weird shit like people would—I don't know. Shit. She used to make some money doin' that." (Italics added.)
As defendant continued to explain what a fetish was and how his "home girl" once had put an iron "up somebody's ass," Doe 1 interrupted that "Ron" had just text messaged her back and had asked for more "pictures." A short time later, defendant thanked Doe 1 for helping him get out of jail, telling Doe 1, "I love you to death." Doe 1 cautioned defendant not to thank her "until [she knew]." Defendant dismissed Doe 1's skepticism, noting, "It's for sure my nigger'. Like shit, [Doe 2] is ugly. She's just like a body my nigger' so you—you feel me. Women like . . . you got body. You've already beaten her there. You cute my nigger'!" (Italics added.)
Defendant discussed Doe 2 and how he ended up in jail. He told Doe 1 he had to "slap" Doe 2 because she was taking money from him. Specifically, he said, "Fuck that nigger' my nigger'. Fuck that bitch [i.e., Doe 2]. Like nigger' and then like all that day it was all kind of like . . . I had to slap her [i.e., Doe 2] for tryin' to do some out of pocket shit, my nigger'.[] Like it was—it's too much. I'm tired of this fuckin' dealin' with that bitch . . . ." Defendant then asked Doe 1 what pictures she had sent Posner and suggested Doe 1 and defendant should marry for his "conjugals." When Doe 1 became upset, defendant reassured her that Posner would become "addicted" to her and would come to prefer her over Doe 2.
Detective Stone testified that the term "out of pocket" meant a "prostitute or victim that has broken the rules set forth by a particular pimp."
Doe 1 suggested that Doe 2 was not answering her phone because Doe 2 was "locked up." Defendant disagreed, noting Doe 2 was "smart enough" to turn off her phone if she was locked up "so people [i.e., ostensibly a John] can't go through it." Defendant told Doe 1 he had watched Doe 2 take phone calls even when "we be trickin'," noting it frustrated him when Doe 2 sometimes would not answer the phone because he was losing money: "like she [Doe 2] would look at the phone. I be like, 'Nigger' answer the fucking phone. It's money! But she just looked at that shit, my nigger'. So I know she's lookin' at my shit right now." (Italics added.) Defendant also informed Doe 1 he had paid Doe 2's phone bill, so he knew Doe 2's phone was working.
During this same call, Doe 1 complained Posner was taking too long to respond to her text messages. Defendant surmised it was probably because Posner was "fucking [Doe 2]," but reassured Doe 1 that, once Posner "h[u]ng out with you and shit—like shit he gonna . . . [h]e's gonna be like, 'Fuck [Doe 2]." Defendant recommended Doe 1 message Posner that she would be downtown in about an hour and could he pick her up.
12:47 p.m.
Defendant complained during this call about being in jail "almost a whole 24 hours" and about the "bitch" Doe 2 not answering her phone, when he had not only bought Doe 2 the phone, but had even "put a call app on there so she could see if somebody from the jail [was] callin' so, she purposely ignorin' my shit." Doe 1 suggested maybe Doe 2 was not answering defendant's calls because he "slapped" Doe 2 "too hard." (Italics added.) Defendant responded, "Yeah, I forgot about that," but said it "had to happen" because Doe 2 needed to "[s]tay in [her] place." (Italics added.) Defendant then added, "Make that money. Make that money. . . . Whole lot of money." (Italics added.)
As the conversation continued, Doe 1 asked defendant for additional advice on how to write the Internet "description" for her friend's post. Defendant suggested Doe 1 "[t]ake shit that sounds good you know, and uh make sure hers got the best—best uh—best worded shit." Doe 1 informed defendant her friend was about 16 years old. Defendant recommended Doe 1 list her friend as being 19 years old, to which Doe 1 replied, "I thought so, too."
Doe 1 and defendant then discussed what number Doe 1 should use for her friend's posts. Defendant cautioned Doe 1 she would not always have access to "Wi-Fi." As Doe 1 was completing her friend's posting, she indicated she had to access an "app to accomplish this." Defendant responded, "No. No. No. You gotta pay for those" and then added, "Nah, don't do those. You only do that unless your bitch really making some money. Shit. You really gotta have her at the top of the list, but shit." (Italics added.) Defendant then applauded Doe 1 for "handling business—posting bitches and shit," noting he was "proud of [her] ass." (Italics added.)
Defendant reminded Doe 1 to post her friend's information on another Internet website because people were "spooked" over the "police" monitoring certain sites. Doe 1 specifically mentioned the "Feds," asking if the "Feds be lookin' on this thing?" Defendant replied there were "Feds everywhere but as long as you feel everybody out before—you know . . . before they come to you and shit."
Defendant then advised Doe 1 to take various precautions when responding to "Ron" or to a "John," including as follows: "Say it like—usually this is what I see girls do. Like I see girls like when they call they'll—they'll text and say, 'Who is this?' Like you know. And then they'll text like, 'Hey, this John or Ron or whatever lookin' for . . .' and you know. And uh, yeah you pretty just feel 'em him like: 'Yeah what you know? What area are you in? What are you lookin' for? And you know, all that shit. And uh ask . . . you're not affiliated with uh police or law enforcement are you? . . . If they say, 'yeah' like you know, . . . [then say] Alright. That you, have a nice day." Defendant reassured Doe 1 "it ain't happened yet" and recommended she ask for "dick pictures" from a contact to ensure it is not the police.
1:56 p.m.
Doe 1 at the outset of this call informed defendant that she still had not heard back from Posner and that she had found Doe 2's telephone number on an Internet website. Defendant instructed Doe 1 to use her phone to make a three-way call, but cautioned her to remain silent during the call. Doe 1 made the call but the record shows Doe 2 answered and then immediately hung up. Defendant instructed Doe 1 to call again, believing Doe 2 was "texting numbers and shit thinking it's a john, tricks and shit. She watch—she'll send a text like . . . within . . . within (unin[telligble]) . . . ." Doe 2 again answered the call from Doe 1 and immediately hung up.
The third call to Doe 2 was the charm. After defendant repeatedly said "hello," Doe 2 finally acknowledged defendant, saying "Hi babe." Defendant asked Doe 2 to bail him out of jail. Doe 2 stated she was trying and had "already talked to the lady." Defendant told Doe 2 he needed anywhere from "$3 to $500" to post bail. Defendant said she had no money but she "probably" could get the "whole $5—from Ron." Doe 2 added she had talked to Posner earlier and they were going to meet after work. Defendant told Doe 2 he had been in jail since the night before and for her to "just bail [him] out," noting he might "skip states . . . 'cause I ain't . . . fuck. I ain't even tryin' . . . I ain't even tryin' to wait for the judge, nigger'." Doe 2 informed defendant she would contact a bail bondsman and she had to go because she had a "date." At the very end of the call, defendant and Doe 2 said they loved each other.
2:18 p.m.
Within minutes of finishing the three-way call, defendant called Doe 1 and told her, "I don't love nobody but you. I just really want to get out of jail, like now." Defendant discussed another girl named "Mimi" who he described as also being "under Ron." Defendant noted he "hate[d] that bitch" because "she wasn't even supposed to know nothin' about Ron . . . ." It thus appeared defendant was becoming frustrated by the fact that Posner was being introduced to, and hiring, girls like Dasia and Mimi that were hurting defendant's "business."
Their conversation turned to Doe 2. Defendant accused her of being a "trap queen" and not being "focused," noting "some hoes just can't focus . . . that's why they hoes." Doe 1, still hoping to get the money from Posner to post defendant's bail, informed defendant that Posner did not want to meet that day and instead wanted more photographs of her.
Detective Stone testified that a "trap queen" was "someone very loyal, very loyal to the game, loyal to the pimp," who was at the top of the "hierarchy" of a particular pimp's "stable," or the girls that work for a pimp, as opposed to a "bottom bitch."
February 3; 9:04 p.m.
One day before defendant made bail, he called and informed Doe 1 that Posner was supposed to be giving her money. Doe 1 complained she was "tired of fucking laying down with Ron." (Italics added.) Defendant told Doe 1 he understood and thanked her.
Doe 1 informed defendant she had lied and told Posner earlier that day she needed money to bail her mother out of jail. Doe 1 indicated Posner had given her about $450, but she had tried to get even more money from him because she knew defendant had other expenses. She then relayed how Posner had asked her to come live with him, as Posner stated he enjoyed her company and "[n]obody [had] ever kissed [him] like [Doe 1]. . . ." Doe 1 told defendant she responded to Posner's offer by saying, "Man, let me take a nap."
February 4; 1:06 p.m.
During this call, Doe 1 informed defendant she had attempted to bail him out the night before but could not do so because she was not 18 years old. Doe 1 thus called defendant's uncle to inquire whether he could sign the bond. During a three-way call, defendant's uncle said he could not sign the bond because he believed there was a warrant for his own arrest. Ultimately defendant's grandmother agreed to sign the bond.
2:07 p.m.
Defendant called his mother and inquired whether she would be able to sign the bond if his grandmother could not. Defendant's mother informed him that she was in the hospital and could not help him and that Doe 2 had called earlier and said she had intended to bail out defendant but decided against doing so because he was "fucking" other girls including Doe 1. Later that day, Doe 1 paid defendant's bail bond and defendant was released.
Defendant was arrested in mid-April 2016 for human trafficking based on his recorded conversations with Does 1 and/or 2. In May, Doe 2 and her mother visited defendant in jail. The jail visit was recorded and played to the jury. Defendant explained during this visit that he was being charged merely because Doe 2 had "borrowed" money from Posner, who, according to defendant, "liked to flash" money to show others he had plenty of it.
DISCUSSION
I
As noted, defendant contends the court erred in failing to suppress his recorded jailhouse conversations with Doe 1.
A. Brief Additional Background
The record shows before his preliminary hearing, defendant moved under section 1538.5 to suppress the jailhouse recordings, alleging the recordings violated the Act because they were made without a warrant. At the preliminary hearing, Detective Brandon Powell of the San Diego County Sheriff's Department testified that the Sheriff's Department contracted with Securus to operate the jailhouse system, which testimony Investigator Penwell subsequently confirmed at trial.
Detective Powell noted that at the outset of each jailhouse call, including defendant's, the following message was automatically generated informing the inmate caller and the recipient(s) that the call was being recorded and was nonconfidential:
"Recording: Hello, this is a free call from . . .
"[¶] . . . [Name of inmate]:
"Recording: . . . an inmate at San Diego Central Jail. This call is being recorded. If you are an attorney, physician or religious advisor and would like to speak to your client without being recorded you must first contact the Sheriff's Department . . . during normal business hours. If you proceed with this call, you do so with the understanding that this telephone call is non-confidential and will be recorded by the Sheriff's Department. If you agree to have this call recorded and wish to procced with this call please continue, otherwise you should terminate this call now. . . . You may start the conversation now." (Italics added.)
Beginning in April 2016, the automated message generated before each call was modified slightly to provide: "If you proceed with this call, you do so with the understanding that this telephone call is not confidential and will be recorded by the Sheriff's Department and shared with any law enforcement or government entity seeking to listen to and use it."
The court denied defendant's motion to suppress the jailhouse calls. In so doing, the court noted that the Act did not apply because defendant had no reasonable expectation of privacy; that even if he did, the sheriff's department and the district attorney were "authorized possessors" of the recordings within the meaning of subdivision (b) of former section 1546; and the sheriff's department was also a "service provider" within the meaning of subdivision (j) of this former statute.
Defendant renewed his motion to suppress the jailhouse calls in a section 995 in limine motion. Although the court appreciated defense counsel's "creativity," the court again denied the motion.
B. Guiding Principles
Effective January 1, 2016, the Act states that a "government entity" shall not "[a]ccess electronic device information by means of physical interaction or electronic communication with the electronic device" unless one of several statutory exceptions applies, including obtaining the "specific consent" of the "authorized possessor" of the device. (See Former § 1546.1, subds. (a)(2) & (c)(3).)
The term "government entity" means a "department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or political subdivision thereof." (Former § 1546, subd. (i).)
"Electronic device information" means "any information stored on or generated through the operation of an electronic device, including the current and prior locations of the device." (Former § 1546, subd. (g).) "Electronic communication" means the "transfer of signs, signals, writings, images, sounds, data, or intelligence of any nature in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system." (Id., subd. (c).) "Electronic device" means a "device that stores, generates, or transmits information in electronic form." (Id., subd. (f)).
"Authorized possessor" means the "possessor of an electronic device when that person is the owner of the device or has been authorized to possess the device by the owner of the device." (Former § 1546, subd. (b).)
The Act includes enforcement provisions. Specifically, subdivision (a) of section 1546.4 provides in relevant part that "[a]ny person in a trial, hearing, or proceeding may move to suppress any electronic information obtained or retained in violation of the Fourth Amendment to the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in subdivisions (b) to (q), inclusive, of Section 1538.5."
" ' "As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning." ' " (People v. Scott (2014) 58 Cal.4th 1415, 1421.) "[W]e consider the language of the entire scheme and related statutes, harmonizing the terms when possible." (Riverside County Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 632.) Issues of statutory interpretation are questions of law subject to independent appellate review. (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072; People v. Martinez (2014) 226 Cal.App.4th 1169, 1181.)
As noted, section 1546.4, subdivision (a) expressly provides that any motion brought under the Act "shall be made, determined, and be subject to review" under subdivisions (b) to (q) of section 1538.5. (§ 1546.4, subd. (a), italics added.)
Our review of a motion to suppress under section 1538.5 evidence is governed by well-settled principles including the overarching principle that to claim the protections of the Fourth Amendment, a person must demonstrate he or she has an " 'expectation of privacy' " in the place searched or item seized. (See People v. Ayala (2000) 23 Cal.4th 225, 255; see also People v. Robles (2000) 23 Cal.4th 789, 794-795 [noting the "touchstone of Fourth Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy"].)
A defendant's right to challenge a search or seizure is determined by examining whether the defendant had his or her own Fourth Amendment rights infringed by the questioned conduct. (Rakas v. Illinois (1978) 439 U.S. 128, 133.) A defendant therefore must demonstrate that he or she " 'personally has an expectation of privacy in the place searched, and that his [or her] expectation is reasonable; i.e., one that has "a source outside the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." ' [Citation.] 'In other words, the defendant must show that he or she had a subjective expectation of privacy that was objectively reasonable.' [Citation.]" (People v. Ayala, supra, 23 Cal.4th 225, 255.)
" 'In ruling on a motion to suppress, the [magistrate] must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the [magistrate's] resolution of the factual inquiry under the deferential substantial evidence standard. Whether the relevant law applies to the facts is a mixed question of law and fact that is subject to independent review.' " (People v. Casares (2016) 62 Cal.4th 808, 835.)
C. Analysis
We independently conclude the Act has no application to the recorded jailhouse calls between defendant and Doe 1 because neither party had a reasonable expectation that any such calls would be private. (See People v. Ayala, supra, 23 Cal.4th at p. 255; see also People v. Casares, supra, 62 Cal.4th at p. 835.) Rather, the record shows that before each call, defendant and Doe 1 were expressly warned by an automated message generated by the Securus system that anything they said during such calls was not only being recorded by the sheriff's department, but was also "non-confidential"; that if an "attorney, physician or religious advisor" was involved in a jailhouse call, such persons needed to contact the sheriff's department "during normal business hours" to arrange for the call not to be recorded, thus assuring its privacy; and that if defendant or Doe 1 did not want their calls recorded, they were advised to "terminate" the call rather than continue with it. We thus independently conclude the court properly denied defendant's motion to suppress.
However, even if defendant had his own reasonable expectation of privacy in the recorded jailhouse calls, we nonetheless conclude from the plain language of the Act that it did not apply to such "electronic communication[s]" under the circumstances of this case. (See former § 1546, subd. (c) [defining such communications to include the "transfer of . . . sounds"].) As summarized ante, the Securus system was the jailhouse call system used by the sheriff's department when defendant made the recorded calls. The Securus system "stores, generates, or transmits information in electronic form," and thus constituted an "electronic device" within the meaning of the Act. (See id., subd. (f).) As such, we conclude both Securus and the sheriff's department were "authorized possessor[s]" of that "device" (see id., subd. (b)), inasmuch as Securus was its "owner" and the sheriff's department was "authorized to possess the device" under a contract with Securus. (See ibid.)
We further conclude a "government entity" like the district attorney's office was entitled to "access electronic device information"—the recorded jailhouse calls—as long as it had the "specific consent of the authorized possessor of the device" (see former § 1546.1, subd. (c)(3)), which was clearly the case here. For this separate reason, we independently conclude the court correctly refused to suppress the jailhouse recordings pursuant to the Act and section 1538.5.
In light of our decision, we need not decide whether Securus, the sheriff's department and/or the district attorney's office also constituted a "service provider" under the Act (see former § 1546, subd. (j) [defined as a "person or entity offering an electronic communication service"]). Nor must we decide whether acting in such capacity, one or more of these entities "voluntarily disclose[d] electronic communication[s]" (see former § 1546.1, subd. (f)) to a "government entity" that, absent various statutory exceptions, was required to "destroy that information within 90 days" of its receipt (see id., subd. (g)).
II
Defendant next contends the court erred when it failed sua sponte to instruct the jury in connection with count 2 (i.e., Doe 2) that contributing to the delinquency of a minor (§ 272, subd. (a)(1)) was a lesser included offense of human trafficking (§ 236.1).
Section 272, subdivision (a)(1) provides: "Every person who commits any act or omits the performance of any duty, which act or omission causes or tends to cause or encourage any person under the age of 18 years to come within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code or which act or omission contributes thereto, or any person who, by any act or omission, or by threats, commands, or persuasion, induces or endeavors to induce any person under the age of 18 years or any ward or dependent child of the juvenile court to fail or refuse to conform to a lawful order of the juvenile court, or to do or to perform any act or to follow any course of conduct or to so live as would cause or manifestly tend to cause that person to become or to remain a person within the provisions of Section 300, 601, or 602 of the Welfare and Institutions Code, is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail for not more than one year, or by both fine and imprisonment in a county jail, or may be released on probation for a period not exceeding five years."
A. Brief Additional Background
The record shows Robert Royce testified as a "human trafficking expert" on behalf of the defense. He opined that it was "common for law enforcement to [misidentify] a victim of human trafficking from a sex worker" or prostitute. He noted, "In determining those two types of people, you have to go back to class characteristics, but you have to go to the individual characteristics of each one. For example, a girl that's into prostitution, she has the ability to move around. She has a telephone. She has the ability to make choices[,] her sexual boundaries for example. She has a choice of—she has a client that she doesn't want to engage in anal sex or sex without a condom; she can make that choice. So on a trafficking victim, they don't have choices. Their body is sold to the customer; he does whatever he wants with that particular girl."
During closing, the defense argued defendant did not "cause, induce, or persuade, or attempt to cause, induce, or persuade, either [Doe 1 or Doe 2] to engage in a commercial sex act." To support its argument, the defense noted Doe 1 testified that, during her recorded jailhouse calls with defendant, she did not believe he was "asking or telling her to hang out with Ron Posner in order to have sex with him"; that Posner allegedly gave her the bail money before she had sex with Posner, after she told Posner it was for her mother; and that defendant "wasn't happy" when Doe 1 first informed him she was a prostitute. The defense further noted that, during the investigation, Posner claimed he was not giving money to Doe 1 as "quid pro quo" for sex or "even a promise of sex."
With respect to Doe 2, the defense argued she likewise testified that defendant never asked her to have sexual intercourse with Posner in return for money. The defense also argued that Doe 2's "relationship" with Posner "preexist[ed]" her separate "relationship" with defendant.
Also during closing, the defense argued the reason Does 1 and 2 engaged in sexual intercourse with Posner was not the result of anything defendant did or said, but rather the result of "environmental and life circumstances." Relying on Royce's expert testimony, the defense argued Doe 2 became a prostitute when she was 13 years old in part to support her family, as her mother had become ill.
Toward the end of closing, the defense argued defendant was being unfairly blamed for inducing, or attempting to induce, Does 1 and/or 2 to engage in prostitution when in fact the "bad guy" was Posner, who was a 74-years-old "CEO of a . . . major company." The defense blamed Posner, noting he liked to meet young "girls" online, spend time with them including taking them to dinner and the movies, and ultimately groom them to have sex with him.
B. Guiding Principles
It is axiomatic that a trial court must instruct sua sponte on a lesser offense if substantial evidence indicates that the defendant is guilty only of that offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) "[T]he obligation to instruct on a lesser included offense does not arise when there is no evidence that the offense was less than that charged." (People v. Wyatt (2012) 55 Cal.4th 694, 702-703.) Thus, the existence of " 'any evidence, no matter how weak,' " does not justify lesser included offense instructions, " 'but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury[.]' " (Id. at p. 698.) We review de novo whether a lesser included offense instruction should have been given. (People v. Manriquez, at p. 584.)
C. Analysis
1. The Lesser Included Instruction Was Unwarranted
Here, the record shows the defense in closing relied extensively on Royce's expert testimony in aggressively arguing defendant committed no crime at all with respect to Doe 2. That is, there was no substantial evidence in the record that defendant encouraged Doe 2 to break the law, but that he simultaneously lacked the requisite intent necessary for the offense of human trafficking. (See People v. Leal (2009) 180 Cal.App.4th 782, 792 [noting a trial court may properly give a lesser included offense instruction "where the evidence shows that if the defendant is guilty, he [or she] is guilty of the greater offense"].)
As such, we conclude it is not reasonably probable a jury would have found defendant guilty of the alleged lesser include offense of contributing to the delinquency of a minor on count 2, even if the jury had been given that option. Clearly, the jury—as was its right as the trier of fact—rejected defendant's argument that he lacked the intent to cause, induce, or persuade, or attempt to cause, induce, or persuade (CALCRIM No. 1244), Doe 2 to commit a "commercial sex act," a finding defendant wisely has not directly challenged on appeal.
A "commercial sex act" was defined as "sexual conduct that takes place in exchange for anything of value."
2. Harmless Error
In any event, we separately conclude any alleged error in failing to give delinquency of a minor as a lesser included offense of human trafficking was harmless. Error in failing to give a lesser included instruction is reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818 standard. (People v. Walker (2015) 237 Cal.App.4th 111, 115.) Under that standard, reversal is warranted only if it appears "reasonably probable" the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Watson, at p. 836.) Defense counsel's statements during closing argument may be considered in determining whether an error in instructing the jury was prejudicial. (People v. D'Arcy (2010) 48 Cal.4th 257, 297 [noting the trial court's error in failing to instruct that the special circumstance of murder in the commission of mayhem is inapplicable if the mayhem was merely incidental to the murder was harmless because defense counsel did not argue that the mayhem was merely incidental].)
Here, we conclude there was overwhelming evidence of defendant's guilt on both counts 1 and 2, as set forth in the recorded jailhouse calls summarized ante. (See People v. Breverman (1998) 19 Cal.4th 142, 177-178 [noting an "appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result"].) As such, we conclude any alleged error in failing to give a lesser included instruction was harmless.
III
Defendant contends the court erred when it sentenced him to the middle term on count 1, the term recommended by the probation report. Defendant further contends the court could not rely on the potential aggravating factor that Doe 1 was "particularly vulnerable" because one of the elements of the offense of human trafficking in this case was that she was a minor. (See Cal. Rules of Court, rule 4.420(d) [noting a "fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term"].) Defendant also contends the court could not rely on the potential aggravating factor that defendant "took advantage of a position of trust" because this factor allegedly only applies to "special relationships."
A. Additional Background
The probation report noted that in mitigation, defendant allegedly had a "minimal record of prior criminal conduct" (see Cal. Rules of Court, rule 4.423(b)(1)), which included: a juvenile adjudication in April 2013 after he was charged with robbery (§ 211), resisting arrest (§ 148, subd. (a)(1)), and grand theft from a person (§ 487, subd. (c); a felony conviction just four months later for prohibition on firearm access (§ 29820); a shoplifting conviction in September 2015 (§ 459.5); and a conviction for felon in possession of a firearm (case No. SCS284551, arising from the January 2016 altercation with Doe 2's brother).
The report further noted possible circumstances in aggravation included the fact that defendant was on probation when he committed the instant offense and that he "took advantage of a position of trust to commit the offense," inasmuch as defendant "acted as if he loved and cared for the victims in order to manipulate them to engage in prostitution."
At sentencing, the record shows the court reviewed both probation reports (the one prepared for the instant case summarized ante, and the other for case No. SCS284551); a lengthy sentencing memorandum and statement in mitigation submitted by defendant, as well as various attachments including interviews from defendant's mother and brother showing defendant had a difficult and tumultuous childhood; a 19-page psychological report on defendant prepared by a clinical and forensic psychologist recommending defendant be referred for "vocational training" while "under probation and/or parole" as a result of him being a "low risk" to the community; and myriad support letters including from his family and respected friends, among other materials.
The defense argued the court should impose probation, in light of defendant's age, his childhood, his limited criminal history including the fact he had never been to prison, and the fact that Does 1 and 2 were not "terribly younger than" defendant and that both girls admitted engaging in prostitution before meeting defendant. Alternatively, the defense argued that if the court was disinclined to grant probation, it should impose the low term of five years on count 1 and make "everything else concurrent."
The prosecutor argued defendant should be sentenced to prison because he was already on probation when he committed the instant offense. The prosecutor thus recommended the court follow the probation report and impose the middle term on count 1.
After hearing additional argument, the court followed the recommendation in the probation report and sentenced defendant on count 1 to the middle term, as noted. In so doing, the court stated that it did not like sentencing 21-year-old men to prison; that it realized defendant had not "had the easiest life"; but that it was obvious defendant knew "right from wrong" and the instant offense "wasn't one wrong," but rather "several wrongs." The court further noted the human trafficking statute carried a "significant custodial term" as a result of the seriousness of this crime.
The court then announced defendant's sentence as follows: "While I do realize that technically you are eligible for probation in [the human trafficking case], it's not a probation case. It just isn't. And the other one you are presumptively ineligible."
"In this matter I do acknowledge your—you don't have a lack of record, but it hasn't gotten to the level that we're here today on. This is what I'm focusing on and why I have to send you to prison is the victims in this case were very vulnerable. We're talking about 15 and 16 years old. They're children. I mean, that's the only way I can describe that. And you essentially controlled them in a manner that was not positive for them, and it wasn't positive for you. And you took advantage of a position of trust. One, you shouldn't have been dating them anyway, and I don't care what their mothers think. That just doesn't matter to me. They're young. You got no business dating them. You had no business manipulating them to engage in prostitution.
"So based on that—I've gone back and forth. It's not an upper term case, but I honestly looked at the lower term and I looked at the mid[-]term, and I can't think of a reason to mitigate from the mid[-]term . . . ." (Italics added.)
B. Guiding Principles
"California law affords the trial court broad discretion to consider relevant evidence at sentencing." (People v. Towne (2008) 44 Cal.4th 63, 85).) "[T]he court may consider the record in the case, the probation officer's report, . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, . . . and any further evidence introduced at the sentencing hearing." (§ 1170, subd. (b).) The trial court may also consider any "criteria reasonably related to the decision being made."
In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, " '[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 (Alvarez), quoting People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Second, a " 'decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." ' " (People v. Alvarez, at p. 978, quoting People v. Preyer (1985) 164 Cal.App.3d 568, 573.)
Where, as here, "the statute specifies three possible terms [of imprisonment], the choice of the appropriate term shall rest within the sound discretion of the [trial] court." (§ 1170, subd. (b); People v. Sandoval (2007) 41 Cal.4th 825, 847 [noting abuse of discretion review on appeal].) A trial court abuses that discretion if, in choosing among the low, middle and high terms, it relies upon facts or circumstances that are irrelevant or prohibited. (Ibid.)
C. Analysis
We conclude the court properly exercised its discretion in sentencing defendant to the middle term on count 1. (See § 1170, subd. (b); People v. Sandoval, supra, 41 Cal.4th at p. 847.) In reaching our conclusion, we note the court was not required to find aggravating factors to impose the middle-term sentence, despite defendant's argument to the contrary. (See People v. Shenouda (2015) 240 Cal.App.4th 358, 370.) Instead, the record shows defendant's sentence was properly " 'based upon an "individualized consideration of the offense, the offender, and the public interest." ' " (See People v. Sandoval, at p. 847.)
In any event, we conclude there is ample evidence in the record to support the findings that victim Doe 1 was "particularly vulnerable" (Cal. Rules of Court, rule 4.421(a)(3)); that defendant "took advantage of a position of trust or confidence" during the commission of count 1 (id., (a)(11)); and that defendant was on probation when he committed this offense (id., (b)(4)).
Courts have interpreted the term "particularly vulnerability" as follows: " ' "[p]articularly . . . means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act." [Citation.]' [Citation.] Thus, a crime victim can be deemed particularly vulnerable as an aggravating factor 'for reasons not based solely on age, including the victim's relationship with the defendant and his [or her] abuse of a position of trust.' [Citations.]" (People v. DeHoyos (2013) 57 Cal.4th 79, 154.)
The record shows when Doe 1 met defendant, she was 15 years old, or about five years younger than defendant, and was already "working" as a prostitute. The record further shows defendant and Doe 1 entered into a "relationship" that turned sexual. Defendant at or near the same time also entered into a "relationship" with Doe 2, who was about the same age as Doe 1 and who was also a prostitute.
During the recorded calls, Doe 1 and defendant talked about Doe 2 and the reason or reasons why Doe 2 was not answering defendant's jailhouse calls. The record shows at one point Doe 1 suggested defendant perhaps had "slapped" Doe 2 "too hard." Defendant admitted that was a possibility, but then defended his need to do so because Doe 2 was "constantly doing the same dumb shit" and she "fuck[ed up] the money in more ways than one."
We conclude this evidence is substantial and supports the finding that Doe 1 was "particularly vulnerable" not "solely" because of her age, but because she was an underage prostitute in a "relationship" with defendant—her pimp, who in the past had "slapped" one of his girls because she had gotten out of line. We further conclude this same evidence also supports the finding that defendant took advantage of his position of trust in his role as Doe 1's "pimp" while committing the offense in count 1. (See People v. DeHoyos, supra, 57 Cal.4th at p. 154.)
But there's more. The record shows within a few hours of being incarcerated, defendant repeatedly began calling Doe 1, after Doe 2 refused to answer his calls as noted ante. Defendant ostensibly attempted to contact Doe 2 first because Posner was a "regular" customer of Doe 2 who paid her about $300 per "trick." However, when Doe 2 would not answer defendant's calls—despite the fact defendant had paid her phone bill, defendant had little choice but to turn to Doe 1 for help.
As such, it is not surprising that during his myriad recorded calls with 15-year-old Doe 1, defendant repeatedly told her how much he loved her and even suggested at one point they should wed, while at the same time disparaging Doe 2, including referring to Doe 2 as "ugly" and a poor prostitute. It was in this context that defendant "coached" Doe 1 on how to engage Posner, including what she should say and write to him to appear "real professional" so he would "let down his guard"; the pictures she should send him so she didn't appear to be "young"; and where and how she should meet up with him among other advice. Defendant gave Doe 1 this advice and instructions because he needed bail money, which Doe 1 would "earn" from Posner by exchanging "sex" for money.
We conclude this additional evidence also supports the finding defendant committed count 1 by exploiting Doe 1's trust and confidence in him. (See People v. Dancer (1986) 45 Cal.App.4th 1677, 1694-1695 [noting a person who is not a "parent, relative, quasi-parent, volunteer or authorized babysitter, religious figure, or day-care provider" can still take "advantage of a position of trust or confidence" as a potential aggravating factor if the person committed his or her offense "by exploiting the trust and confidence" the person "cultivated" with the victim].)
Finally, the record shows defendant was on probation when he committed the instant offense. (Cal. Rules of Court, rule 4.421(b)(4).) For this additional reason we conclude the court properly sentenced defendant to the middle term of eight years on count 1.
In light of our decision on the merits, we need not consider respondent the People's alternate contention that defendant forfeited the challenge to his sentence on count 1. (See People v. Gonzalez (2003) 31 Cal.4th 745, 751 [noting a "party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial"], quoting People v. Scott (1994) 9 Cal.4th 331, 353; see also People v. Sperling (2017) 12 Cal.App.5th 1094, 1101 [noting a "defendant cannot remain mute while the trial court states its reasons for imposing a sentence and then on appeal claim that its statement of reasons was defective"].)
DISPOSITION
Defendant's judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.