Opinion
E051914
10-19-2011
THE PEOPLE, Plaintiff and Respondent, v. SKYE ELY GIPSON, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Andrew Mestman and Steve Oetting, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1001515)
OPINION
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Andrew Mestman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant Skye Ely Gipson guilty of pimping a minor who was under 16 years of age (Pen. Code, § 266h, subd. (b)(2)), and pandering with a prostitute who was under 16 years of age (§ 266i, subd. (b)(2)). The trial court found true the allegation defendant suffered a prior conviction that qualified as a strike offense. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)(i).) The trial court also found true the allegations defendant suffered three prior convictions that resulted in prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to prison for 15 years.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found defendant not guilty of robbery. (§ 211) The jury was unable to reach verdicts on four other counts that concerned a second victim, and charges of pimping, pandering, molestation, and statutory rape. (§§ 266i, subd. (b)(2), 266h, subd. (b)(2), 288, subd. (c)(1), 261.5, subd. (d).) The trial court declared a mistrial on the four counts related to the second victim, and the charges were dismissed.
Defendant raises two issues on appeal. First, defendant asserts there is insufficient evidence that he is guilty of pandering. (§ 266i, subd. (b)(2).) Second, defendant contends the trial court erred by not instructing on all of the elements of pandering. (§ 266i, subd. (b)(2).) We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The victim, a female, was born in March 1996. The victim met defendant in March or April 2010. The victim met defendant when she was walking down a street near the intersection of Arrowhead Avenue and 13th Street, in San Bernardino. Defendant was driving a black Camaro, and it was nighttime. Defendant spoke to the victim about working for him, and he told her that she could "make a lot of money."
The victim worked as a prostitute for defendant. Defendant transported the victim to Pomona, Hollywood, and the Baseline area of San Bernardino, in order for her to prostitute herself. When defendant took the victim to the different cities, she would exit defendant's car and walk around until "somebody pulled up." After someone stopped, the victim would speak to the person, and then perform "[w]hatever they paid for," which included sexual intercourse. The victim would stay on the street for hours after defendant dropped her off. The victim gave defendant half of the money that she made; defendant and the victim had an agreement regarding how much she would charge people. At times, the victim stayed in hotels with defendant; defendant paid for the hotel rooms.
Defendant and the victim stayed in contact with one another via text messages. One of the text message exchanges between defendant and the victim was as follows:
"[Defendant on April 11, 2010, at 6:58 p.m.]: U [good]?
"[Victim at 7:39 p.m.]: Yeah[.]
"[Defendant at 7:40 p.m.]: Ok[.]
"[Victim at 8:20 p.m.]: They playin[.]
"[Defendant at 8:54 p.m.]: Where u [at] so I can meet u[?] [W]hen u fin[ish] call me[.]
"[Victim at 8:55 p.m.]: [O]k.
"[Defendant at 9:22 p.m.]: Make Dad proud Ma[.][]
"Daddy" is how pimps often refer to themselves.
"[Victim at 9:33 p.m.]: I[']m need u to [c]ome pick me up[.]
"[Defendant from 9:36 p.m. to 10:19 p.m.]: Where u [at ?] Call me, [o]r what[']s around u like stores[?] U on yo[ur] way? Is that [right]!
"[Defendant on April 12, 2010, at 1:41 a.m.]: Be patient it[']s gonna cum ma[.]
"[Victim at 2:25 a.m.]: I [ain't] ca[tch]ing no date[.]
"[Defendant at 2:30 a.m.]: U will, jus[t] walk so they can [see] u, get 1 or 2 then we gon[e] ma[.]
"[Victim from 2:36 a.m. to 3:03 a.m.]: Okay[.] [Why] is it so slow[?] It [is] really slow[.]
"[Defendant at 3:06 a.m.]: Ok, [I am going to] get u in 25min so lets try to really get it ma[.]
"[Victim at 3:09 a.m.]: [I] am [ain't] no tricks[.]
"Trick" refers to a potential customer.
"[Defendant at 12:59 p.m.]: Here I cum[.]
"[Defendant at 3:58 p.m.]: U [good]?
"[Victim at 4:02 p.m.]: [J]ust made 300[.]
"[Defendant at 4:03 p.m.]: 4sho ma, do yo[ur] shit[.]
"[Defendant at 5:43 p.m.]: Where u [at?]
"[Defendant at 6:12 p.m.]: [What the fuck]!"
On April 15, 2010, around midnight, the victim was walking near Arrowhead Avenue and Baseline Street, and she had two cell phones in her possession. As the victim was walking, she encountered a group of people in a car; one of the people in the group was known as "Alpha Con Man." Alpha Con Man was the victim's first pimp; he is related to defendant. Alpha Con Man spoke to the victim, then grabbed her neck, took one of her mobile phones, and threw her on the ground. Alpha Con Man then re-entered the car and left.
Within 10 minutes of the incident with Alpha Con Man, the victim met a man, Edward, near a fast food restaurant. The victim went to a convenience store with Edward. At the convenience store, the victim saw defendant with Alpha Con Man and "some other dude." Edward and Alpha Con Man argued. Edward hit Alpha Con Man's car with a bat, and instructed him to return the victim's telephone. The victim never received her telephone; she reported the theft to the police.
City of San Bernardino Police Officer Mary Yanez spoke to the victim after the telephone theft. Officer Yanez arrested the victim, because there was a Welfare and Institutions Code warrant in the system for the victim. Officer Yanez explained that the victim was reported as a runaway from a group home.
City of San Bernardino Police Officer Jerry Valdivia had been an officer for 29 years, and was a vice investigator, which covered crimes such as prostitution, pimping, and pandering. Officer Valdivia explained pimps will sometimes recruit prostitutes on the street, and sometimes a pimp will monitor areas around group homes, in order to recruit prostitutes. The officer explained pimps will draw girls from group homes into prostitution "by feeding them, clothing them, [and] sheltering them at the beginning."
On April 15, 2010, Officer Valdivia spoke to the victim. In conjunction with the police, the victim made pretext calls to defendant. The telephone calls were made from inside an unmarked police vehicle, which was parked in a grocery store parking lot, near Baseline Street and Waterman Avenue.
A pretext call involves a false story or false information that is designed to gather a confession or information about a suspect or an offense.
During the pretext conversation, the victim told defendant she made $700, so if defendant brought the cellular telephone Alpha Con Man stole, then the victim would bring defendant the money she made. The following conversation then took place:
"[Defendant]: [H]ell naw, your ass is out of pocket.[]
The phrase "out of pocket" refers to a prostitute working independently, without a pimp.
--------
"[Victim]: I'm out of pocket?
"[Defendant]: Yha.
"[Victim]: So you don't want that money[?]
"[Defendant]: How much you got?
"[Victim]: I got 700.00 dollars.
"[Defendant]: I don't know man.
"[Victim]: 700.00. [¶] . . . [¶]
"[Defendant]: That don't even matter. It ain't even about the money though you know I can get that shit anyways you know what I mean? You outta pocket though you with me though you still owe me though so man fuck that for all you know you call it (inaudible) because I'm going to do it anyway. Because I'm going to real you up."
As the conversation continued, the victim told defendant she wanted him to help her retrieve her telephone from Alpha Con Man. Defendant said he could not help the victim, because the victim owed him money. When the victim grew tired of waiting for defendant, and claimed she would leave the grocery store parking lot if he made her wait much longer, defendant responded, "[Y]ou can go home cuz I don't even give a fuck . . . man you slept with mother fucking shit . . . ."
After waiting awhile longer for defendant to arrive at the grocery store, the victim told defendant "You got 5 minutes or I'm leaving." Defendant responded, "I don't give a fuck you can't tell me I'm a motha fuckin pimp man I get my moth[a] fuckin money man . . . ." Defendant arrived at the grocery store; he was arrested shortly thereafter.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Defendant contends substantial evidence does not support the finding that he encouraged the victim to become a prostitute. (§ 266i, subd. (b)(2).) We disagree.
"'When reviewing a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citations.] '[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.)
A person is guilty of pandering if he "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute." (§ 266i, subd. (a)(2).) Our Supreme Court has recently concluded that encouraging a person to "become a prostitute" does not mean that the potential victim was not previously a prostitute, and the defendant encouraged a "virtuous" woman to change her profession to prostitution; rather, it means encouraging the potential victim to "'become a prostitute' in the future for the benefit of the encourager or some other pimp"—to engage in future acts of prostitution. (People v. Zambia (2011) 51 Cal.4th 965, 975 (Zambia).)
The victim testified that when she was walking down a street defendant spoke to her about working for him, and he told her she could "make a lot of money." The victim testified that "work" refers to prostitution. The victim further testified that when she worked as a prostitute for Alpha Con Man, she gave all the money she made to Alpha Con Man; however, defendant allowed the victim to keep 50 percent of the money she earned.
A trier of fact could reasonably infer from the foregoing evidence that defendant encouraged the victim to work for him as a prostitute by offering to let her keep 50 percent of the money she earned, which was a substantial increase from the zero percent that Alpha Con Man allowed the victim to retain. Accordingly, the foregoing is substantial evidence supporting a finding that defendant made a promise involving money, which caused, induced, persuaded, or encouraged the victim to become a prostitute for him. (§ 266i, subd. (a)(2).)
Defendant's opening brief was filed prior to our Supreme Court publishing Zambia. In his opening brief, defendant argued there was insufficient evidence he encouraged the victim to become a prostitute, because the victim was already working as a prostitute when she met defendant. Defendant's argument was centered upon People v. Wagner (2009) 170 Cal.App.4th 499, 510, which concluded the pandering statute did not apply when the victim was already working as a prostitute, because a person could not "become" a prostitute if that person was already a prostitute. In Zambia, our Supreme Court expressly disapproved Wagner. (Zambia, supra, 51 Cal.4th at p. 981.)
In defendant's reply brief, he concedes that Zambia disapproved Wagner, but argues that the dissenting justices in Zambia "have the better of the argument." (Zambia, supra, 51 Cal.4th at pp. 982-988 (dis. opns. of Kennard, J. & Werdegar, J.).) We do not analyze the majority versus dissenting opinions in Zambia, because such a discussion would be fruitless, in that we must follow the majority's opinion. (Auto Equity Sales, Inc v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) Thus, we find defendant's argument to be unpersuasive.
B. JURY INSTRUCTION
1. PROCEDURAL HISTORY
a) Information
The People charged defendant with pandering as follows: "On or about April 15, 2010, in the above named judicial district, the crime of PANDERING BY ENCOURAGING A MINOR UNDER AGE 16, in violation of . . . SECTION 266i(b)(2), a felony, was committed by [defendant], who did unlawfully, and by threats, violence, promises, a device, and scheme, cause, induce, persuade, and encourage [the victim], another person who was a minor under the age of [16] years, to become a prostitute."
b) Pandering Statute
Section 266i, subdivision (a), provides, in relevant part, "[A]ny person who does any of the following is guilty of pandering . . .
"(1) Procures another person for the purpose of prostitution.
"(2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute.
"(3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state." (Italics added.)
c) CALCRIM No. 1151
The standard jury instruction associated with section 266i is CALCRIM No. 1151, which provides in relevant part:
"To prove that the defendant is guilty of pandering, the People must prove that:
"<Alternative 1A—persuaded/procured>
"[1. The defendant (persuaded/procured) _____ <insert name> to be a prostitute(;/.)]
"<Alternative 1B—promises/threats/violence used to cause person to become [a] prostitute>
"[1. The defendant used (promises[,]/ threats[,]/ violence[,]/ [or] any device or scheme) to (cause/persuade/encourage/induce) _____ <insert name> to become a prostitute(;/.)]"
d) Discussion of the Jury Instruction
When discussing jury instructions, an issue was raised regarding whether pandering (§ 266i) is a specific or general intent crime. The trial court remarked that the courts of appeal are split on the issue. In discussing the appellate history of the intent issue, the trial court cited Wagner, which is a case that involved the "encouragement" portion of the pandering statute, and People v. Montgomery (1941) 47 Cal.App.2d 1, 8, which concerned the portion of the pandering statute related to procuring a person "for a house of prostitution." When speaking about the issue, the trial court said, "[P]rocuring someone to be a prostitute implies a form of encouragement . . . ."
The trial court remarked, "a statute that the People are proceeding under— necessarily implies . . . the use of persuasion, solicitation, encouragement, and assistance, in achieving the unlawful purpose. That being the case I think the definition of procurement as defined by the various courts of appeal implies . . . an intent to influence them to be prostitutes." In explaining what it means to have an intent to influence, the trial court said, "[T]he defendant has to basically encourage the victim in this particular occasion to be a prostitute. [¶] So based on that definition of procure— and I will note that the pinpoint instruction defined in procure doesn't necessarily include that element, I think that . . . problem is solved by the inclusion of Element 2, namely the specific intent element set forth in the pattern jury instruction. So for that reason over the People's objection I am going to include Element 2, the specific intent requirement instruction."
The prosecutor asked the trial court what specific definition of procurement the court had been referring to, because she was "wondering if that language should be included in our procurement definition that's given to the jury." The trial court explained it would read from Montgomery, supra, but remarked that the appellate opinion "doesn't burrow in and actually unpack the meaning of procure." As an alternative, the court offered "to not define procure and to tell the jury to apply it in [its] common and everyday meaning."
The prosecutor responded, "I think if we don't include some type of a definition it's going to come back with a question, What does that mean?" The People then argued that "procure" was redundant, since the term "encourage" was already included in the People's allegation. The trial court agreed, but remarked that "procure means to obtain a person as a prostitute for another person." The court explained that procuring a person to be a prostitute for another person was "an accurate definition of procure but not legally complete in the context of the pandering statute." The court explained that the second element of pandering was influencing the victim to be prostitute, and that element was not proven simply by obtaining a person for purposes of prostitution; rather there had to be proof that defendant "encourage[d], influence[d]" the victim. The prosecutor responded, "That's fine, your Honor." The trial court asked defendant's trial counsel if there was "anything else?" Defendant's trial counsel responded, "No."
e) Jury Instruction
The trial court instructed the jury as follows: "The defendant is charged in Counts 4 and 6 with pandering in violation of Penal Code section 266i. [¶] To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant procured [the victim] (count 4) or Sonya (count 6) to be a prostitute;
"2. The defendant intended to influence [the victim] (count 4) or Sonya (count 6) to be a prostitute; [¶] AND [¶]
"3. [The victim] (count 4) or Sonya (count 6) was under the age of 16 years at the time the defendant acted.
"A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money. A lewd act means physical contact of the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person's body for the purpose of sexual arousal or gratification. To procure means to obtain a person, as a prostitute, for another person."
2. ANALYSIS
Defendant contends the trial court erred by instructing the jury on the procurement form of pandering, as opposed to the encouragement form of pandering, because he was charged with encouraging, not procuring. The People concede the trial court erred, but assert that the error was harmless. We agree with the People.
Defendant frames the issue as "[t]he trial court's failure to instruct on an essential element of the offense is reversible error." Since the People concede the trial court erred, and the record reflects the trial court instructed the jury on the "procurement" portion of the pandering statute, as opposed to the "encouragement" portion of the statute, we will assume that the trial court erred, and move on to the harmless error portion of the analysis.
When a trial court's error "consists of a failure to instruct on an element of a charge or amounts to an instruction of a legally incorrect theory, the judgment must be reversed unless the People prove beyond a reasonable doubt that the error did not contribute to the verdict in the case at hand; one way to meet this burden is to show from the verdicts that the jury necessarily found all the elements required to convict under a proper theory. [Citations.]" (People v. Lewis (2006) 139 Cal.App.4th 874, 884 [Fourth Dist., Div. Two].) The proper theory in this case would be that defendant was guilty of pandering by encouragement, as opposed to the theory that defendant was guilty of pandering by procurement. Accordingly, we review the record to determine if the verdicts reflect that the jury necessarily found all the elements required to convict defendant of pandering by encouragement.
A person is guilty of pandering by encouragement, if "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute." (§ 266i, (a)(2).) Accordingly, there must be a finding that (1) defendant encouraged, induced, or persuaded the victim to be a prostitute; and (2) the encouragement or persuasion involved promises, threats, violence, a device, or a scheme.
The trial court instructed the jury that the People were required to prove "defendant intended to influence [the victim] . . . to be prostitute" and "defendant procured [the victim] . . . to be a prostitute." "The 'recognized meaning' of procure 'refers to the act of a person "who procures the gratification of the passion of lewdness for another."'" (People v. Dixon (2011) 191 Cal.App.4th 1154, 1159.) In other words, the "procurement" portion of the pandering statute typically refers to obtaining a prostitute for another person.
The jury found defendant guilty of pandering because defendant procured the victim as a prostitute, and the jury found that defendant influenced her decision to be a prostitute; therefore, the jury necessarily found that defendant encouraged the victim to become a prostitute, because the act of encouraging is subsumed within the acts of procuring and influencing, in that defendant could not have merely procured the victim to be a prostitute by asking "Would you like to work for me?," if he also had the intent to influence—with the intent to influence there comes an implied finding that defendant procured the victim by encouragement. In other words, defendant did not procure the victim by asking her a simple question—he influenced her decision. By influencing the victim, he encouraged the victim to become a prostitute.
Next, the record reflects defendant persuaded the victim to work for him by speaking to her on the street and telling her that she could "make a lot of money." Thus, the jury's findings that (1) defendant procured the victim to be a prostitute; and (2) intended to influence the victim to be a prostitute, imply a finding that defendant accomplished these acts by promising the victim money, because that is the only evidence supporting the findings. For example, defendant did not testify that the victim saw him on the street and asked him to be her pimp. Thus, the jury's verdict is necessarily based on a finding that defendant promised the victim money. As a result, there is an implied finding that defendant's encouragement involved a promise.
Since the encouragement element is subsumed within the jury's verdict, and the promises finding is implied in the jury's verdict, we conclude the verdicts show the jury necessarily found all the elements required to convict defendant under the proper legal theory. Thus, the trial court's instructional error is harmless beyond a reasonable doubt.
Defendant points out there is evidence of defendant telling the police he was not a pimp, and that the jury did not convict defendant of pandering on count 6, which related to a different victim, Sonya. Defendant asserts the weak evidence of encouragement and promises cannot support a conclusion that the trial court's error was harmless beyond a reasonable doubt, because a rational jury may have acquitted defendant if it had been properly instructed. Defendant's argument does not address the findings that the jury made related to the victim and pandering. Thus, we find the argument to be unpersuasive.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.