Opinion
C093179
03-02-2022
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEQUIEZ HAWKINS, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 20FE004144)
BLEASE, Acting P. J.
In this appeal, we address an exception to a criminal defendant's right to confront witnesses, the doctrine of forfeiture by wrongdoing. Defendant Kenneth Lequiez Hawkins was Sarah Doe's pimp. He was arrested shortly after an incident in which he beat her and forced her to go into a vehicle and perform oral sex on a man. Doe gave two statements to the Sacramento police inculpating defendant. When she failed to appear, the trial court, over defendant's objection, granted the prosecution's motion to admit her two statements to a police officer and a detective, finding the forfeiture by wrongdoing exception applied because defendant had facilitated Doe's failure to appear.
Following a jury trial, defendant was convicted of human trafficking (Pen. Code, § 236.1, subd. (b) -count one), pimping (§ 266h, subd. (a)(1)-count two), and pandering (§ 266i, subd. (a)(1)-count three). The trial court sustained a strike allegation and sentenced defendant to a 40-year state prison term. The trial court subsequently recalled the sentence and modified the term to 28 years in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends admitting Doe's statements to the police violated his right to confrontation, there was insufficient evidence to support the human trafficking conviction, and the imposition of certain mandatory fines and fees without determining his ability to pay was a deprivation of various constitutional rights.
The trial court's finding that defendant induced Doe not to testify through wrongdoing was based on preliminary hearing testimony showing defendant was in a control relationship with Doe, a call he made to her from Sacramento County jail in which defendant told Doe she needed to fix what happened, calls to other parties from jail in which defendant emphasized the importance of Doe not testifying, and evidence that Doe had been contacted by others who appeared to be acting on defendant's behalf and in defendant's interest while defendant was awaiting trial. This is substantial evidence supporting the trial court's finding. Since substantial evidence supports the human trafficking conviction and his claim regarding fines and fees is both forfeited and without merit, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case
1. Parking Lot Incident
Tung Tran was working at a store on Franklin Boulevard in Sacramento in the afternoon on March 1, 2020, when he saw a group of men standing in the parking lot. Walking outside, Tran saw a woman sitting in the middle of the parking lot, crying, and yelling. A man was talking and yelling at the woman. An older man approached and interacted with the first man. Tran went back into the store for five to ten minutes. When he went back outside, Tran saw the man, who was yelling, driving to the back of the parking lot of the store while the older man and the woman, who was still crying, walked there.
Tran went back into the store. When he went back out again, Tran saw the yelling man forcing the woman and the older man into the front passenger seat of a vehicle. The first man punched the woman, yelling, "Eat it, Eat it," and "I need the money right now." The woman was crying, and on her knees while the older man dropped his pants down to the floor. Tran could not see what the woman was doing because his view was blocked. He heard her say, "No, please," after which Tran went back into the store. When he came out again, Tran saw the woman on her knees and crying, while the man who had been yelling was holding a baseball bat.
Tran called 911 at around 4:27 p.m. He reported that a man forced a woman to perform oral sex on a random man in a dark blue Lincoln or Mercury vehicle in the parking lot. Tran saw the first man holding a baseball bat aggressively, but the man did not swing it. He saw the abusive man and the woman leaving together in the vehicle.
An Instagram video showed events similar to Tran's description of the incident. In the video, a group of men yelled at a woman to "choose up," while another man ordered the woman to sit in the middle of the parking lot, which she did. The vehicle in the video matched Tran's description of the vehicle the abusive man was driving.
2. Arrest and Aftermath
On the day of the incident, March 1, 2020, Sacramento police identified the abusive man in the video, defendant, and arrested him. The woman in the video, Doe, was with defendant and was visibly injured. There were multiple bloodstains on the front passenger area of defendant's vehicle. The vehicle contained three cell phones, along with dozens of condoms and lubricant in bags that were known as "tools of the trade" that sex workers carry. Defendant asked officers to retrieve his cell phone from his nearby apartment. Within the apartment, officers found a baseball bat which matched the description later given by Doe.
Doe was taken to the hospital. She sustained a laceration above her eye that required nine stitches. Doe also had minor injuries to her arms, legs, torso, and left breast, and she had swollen hands.
3. Doe's Statements
Sacramento Police Officer Michael Nelson took a recorded statement from Doe at the hospital. Doe had known defendant for about two months, meeting him at Wellness and Recovery Center where she used to work. She gave him her number and they started dating.
According to Doe, defendant had "anger issues." He would put his hands on her or try to have others do the same. Defendant was not violent at the beginning of their relationship; he got violent when he thought she was being sneaky or doing things behind his back.
Doe and defendant were with each other much of the time; they usually rented a room or slept in the vehicle. Defendant first asked her to have sex with someone else about a month before the interview and had asked her to "trick" between five and ten times. Doe did not always comply with the requests. When she told defendant she did not want to comply, defendant would start to hit Doe in front of other people, telling her, "[N]obody aint gonna save you! Nobody's going to fucken save you." This embarrassed her, so Doe would tell defendant to just stop as she did not want to get law enforcement involved.
Doe set her own prices. When asked by Officer Nelson, "[h]ow much money do you make doing that," she answered, "[p]robably like four [hundred], depending on how I feel." She would charge $150 for an hour-long date and give defendant $100 of that, even though Doe thought defendant did not deserve it. She met customers online, over the phone, or on the street. Doe met customers in their house or on "car dates," with defendant driving her to the dates. Doe learned about prostitution from her cousin and had been engaged in it for around two years.
Doe told Officer Nelson the blood in defendant's vehicle was from her injury. She injured her hand a couple of days earlier when she held it up to block defendant from striking her face. Doe's injuries were caused by defendant's attacks on that day and a few days before. Defendant had told Doe, "go out there and get me some money!"; when she declined, defendant got mad, slapped Doe, and took her to his cousin's to have someone jump her "for lying and not telling him the truth." Doe sustained the injury above her eye in San Pablo, outside San Francisco, when defendant pushed her, causing her to fall.
The incident at the parking lot started when defendant got mad because he wanted to get money from a "trick" but Doe had walked the wrong way. When they got to the parking lot, defendant opened the door and his "homeboys" were there recording her and saying, "choose up! Choose up! . . . . I know you wanna choose up bitch!" Defendant saw a man walking down the street and asked him, "you want some pussy?" The man pulled out his penis and defendant told Doe to suck it, but she said that she did not want to. Defendant told her the man had paid for it, but Doe knew he had not paid. As the man sat inside the car while Doe was on her knees, defendant told Doe, "[S]uck it! I don't give a fuck. You gonna do whatever the fuck I tell you to." He also told her to "suck his dick, this is what you like to do for free." Defendant was holding a blue metal baseball bat with a black grip. He threatened to hit her with the bat if she did not perform oral sex on the man. Doe told defendant she would not, but nonetheless pretended to perform oral sex on the man. She had only touched the man's penis and put her hands on top of each other. The incident ended when someone said police were coming.
Doe said that defendant never hit her with the bat but previously had hit her with other items, such as striking her head with a curling iron.
Defendant never forced Doe to have sex with him but would force her to have sex with other people when she did not want to. When that happened, defendant would get mad at Doe and expected her to listen to what he told her. She last had sex with a "trick" a few days before the interview when defendant drove her to San Francisco. He last got mad at Doe for not having sex with another man about a week before the interview with Officer Nelson. Defendant would try to embarrass her; Doe would run away but defendant would threaten to kill her. She told defendant she was afraid and wanted to be taken home, but defendant said he would not take her home and told Doe she would be with him for the rest of her life.
Doe told Officer Nelson she did not want anyone to know where she was because defendant's cousins told Doe they would find her and beat her if she put defendant back in jail. Defendant had previously told Doe, "I should just kill you since you don't want to live," and had said something like this that day, before the parking lot incident. He had also told Doe, "I should just kill you for not motherfucking listening . . . . I should just go get the gun and just kill you."
Doe was glad the police came as she had been trying to get away from defendant for "hecka long." She never called the police because defendant took her phone and would give it to her when she was "out making some money."
Doe was interviewed later that day by Sacramento Police Detective Jason Collins. Defendant had become angry at her for not making gas money. She called defendant her boyfriend, but "everybody" called him her pimp. She started working for defendant while they were dating; it was "all cool" until defendant thought she was being sneaky and lying.
Doe had started "working" when she was 15 years old and had been working on her own without any "dudes." She posted ads and liked what she did because it paid well. Doe stopped for two years after she had her child. She identified defendant as her "dude."
Defendant had been fine with Doe being a prostitute; she told him about a week after they started dating. He started hitting her and accusing her of lying about a month into their relationship. Defendant thought she had "choosed up on somebody else" but this was not true. When Doe told defendant she had gone to see a customer, defendant would accuse her of lying and questioned how much money she was giving him.
Doe primarily posted her advertisements on the websites List Crawler or Skip The Game and used her own phone number. She did the ads without defendant's help, although he would drive Doe to her dates. She gave defendant about $150, depending on how much she made. Doe charged $100 to $150 for a 30-minute date, $200 for an hour, and $60 for a "quickie." She did primarily "car dates" and would make about $400 a night working every other day. In exchange for Doe giving him money, defendant would buy her food and clothes.
Doe believed she had given defendant $500 in the two months they had been together. Although defendant did not get very "pimpy" with her, he would get aggressive with her when he thought she was lying and would threaten to beat her up. Defendant considered himself her pimp and was managing her. He was trying to get money from her and would put his hands on her if she did not follow his instructions and directions. Defendant would take her down to the "blade" every day, where she would work from 8:00 p.m. to midnight. While there, defendant would tell her what to do and how to do it, and he would threaten her.
The "blade" is an area where street prostitution takes place.
Defendant had threatened Doe's life. He told Doe he would shoot her or find her and beat up Doe and whoever she was talking to. Doe did not know if defendant would carry out the threats, but she wanted to get away from him.
4. Expert Testimony
Detective Collins specialized in human trafficking cases. He had met women who claim they are voluntarily engaged in prostitution but were in fact exploited by a pimp. A primary rule between a pimp and sex worker is that you do not talk about your pimp to law enforcement, which established a level of control and a layer of protection for the pimp.
The terms "the life" and the "game" are used by sex workers and pimps to describe the life of prostitution or the game of pimping. "Working" means engaging in prostitution. A "date" is the sex act between the sex worker and customer, with a "car date" being the buyer picking up the worker and having sex in the buyer's car in a remote location. Sex workers usually refer to their pimps as "daddy," "dude," or "boyfriend." The phrase "put their hands on them" refers to physical abuse like getting slapped or hit. "Choosing up" happens when the sex worker switches to a new "better pimp."
Various websites are used for sex workers to advertise their services, including List Crawler and Skip The Games. Sex workers also walk up and down a street and try to get the attention of prospective customers in an area known as "the blade."
It is very difficult for a woman to get out of "the life" because the pimp usually makes her afraid that the woman or her family will suffer violence if she leaves. The sex worker also may lack the resources to support herself if she leaves.
Detective Collins had asked Doe if defendant was not very "pimpy" to try to gauge whether she was minimizing her circumstances, as some sex workers do. Soon after this characterization, Doe started talking about defendant's actual level of control over her on the street, such as taking her to the "blade," making her stay on the phone so he could monitor her on a date and having her give him money. By the end of the interview, Detective Collins concluded defendant was a pimp who controlled the business parts of Doe's work.
Sex workers are apprehensive when speaking to law enforcement, potentially minimizing their experience until becoming comfortable enough to tell what happened. For example, Doe began the interview by saying defendant was cool with her sex work, but by the end gave specific instances of how defendant managed her work.
The rates Doe quoted Detective Collins were consistent with his experience. Pimps often set a quota that the sex worker must earn each night. Not meeting the quota can lead to physical abuse from the pimp.
Doe did not have defendant's number saved on her phone, which is common for sex workers, as it provides another layer of protection between the worker and her pimp.
Sacramento Sherriff's Sergeant John Sydow testified as an expert on pimping and human trafficking subculture. Pimps can be a "Romeo pimp" who use romance and promises of a better life, or a "gorilla pimp" who uses force and fear, although most pimps use both tactics. Sergeant Sydow opined that the video of the parking lot incident indicates pimping and human trafficking. Given a hypothetical of the facts of this case, Sergeant Sydow opined the hypothetical facts were consistent with pimping and pandering.
5. Other Evidence
Of the three phones found in defendant's car, one phone matched the number Doe gave for her phone, another matched the number she gave for defendant's phone, and the third matched the number Doe provided in her ads. The phone associated with the ads was an old prepaid model meant to be thrown out when the minutes were used up. A prosecution investigator opined the prepaid phone belonged to either defendant or Doe or might have been shared by them. The data from the prepaid phone could not be downloaded, but the data from the other two phones was retrievable.
There were a number of conversations between defendant and Doe on defendant's phone. One text message, "eat, eat, MOBE," meant defendant would bring her something to eat when she was working. The message also said, "[s]ecure our spot love," which referred to working in a particular area. Another text message suggested exchanging sex for rent or a place to stay. Two text messages had defendant directing Doe to continue working and to give him money.
Other text messages showed defendant telling Doe where to stand on the street, and to continue working until she made a couple of hundred dollars. Defendant and Doe also exchanged texts while Doe was arranging sex with a customer. In another text message, defendant directed Doe to earn $1,000 that night by "trapping hard," or working hard as a prostitute. There were also text messages on defendant's phone about Doe setting up dates with sex buyers, discussing rates, and setting locations.
Doe told Sacramento County District Attorney's Investigator Annette Fucles that defendant had asked her not to testify, by contacting her by phone while using his and other inmates' personal identification number assigned to each inmate (PIN) from jail. Doe did not come to several meetings with Fucles and did not appear in court even though she had been served with a subpoena. On September 7, 2020, Fucles found several ads Doe had posted on escort websites for services in Palm Springs. She also posted ads in Sacramento and Southern California dated after July, 2020.
Sacramento County Sheriff's Deputy Michael Headley investigates crimes at the Sacramento County jail. The jail uses PINs and voice recognition software to determine who is calling from jail. Deputy Headley testified regarding two calls made to Doe from the jail. Doe received a call from an inmate, not the defendant, in which the inmate told Doe not to come to court and Doe said she would not come. Another time, defendant called Doe using another inmate's PIN.
B. The Defense
Testifying on his own behalf, defendant said he had a romantic relationship with Doe, with whom he had sex on their first date. He did not like it when he learned she was a prostitute a couple of weeks into their relationship. She continued to work as a prostitute and would lie and sneak around. Doe never asked for defendant to be her pimp. She would ask defendant for rides; defendant at first did not know these were for her sex dates. After defendant learned she was a prostitute by looking at her phone, he asked her to stop. Doe said that she would.
Doe's head injury occurred during an argument over panhandling for gas money; she got additional injuries from fighting other people. The parking lot incident happened after they returned to Sacramento. Defendant was yelling at Doe because a man with whom she had cheated was there. A "white guy" defendant did not know but had seen before, walked by and asked defendant if he wanted to buy drugs. It was a drug sale and defendant did not tell Doe to perform oral sex. Defendant held a bat but did not hit anyone. After getting some marijuana, defendant and Doe went to his place to smoke marijuana and relax.
Defendant was not Doe's pimp; she gave him money voluntarily. He had people talk to her about not coming to court "to a certain extent," but defendant did not recall personally telling Doe not to come to court. Defendant said "choose up" at the parking lot because others were saying it as well. Only a small number of the text messages on Doe's phone were from defendant, and all three phones belonged to Doe. Defendant did not send Doe the text messages about pimping and prostitution.
C. Rebuttal
Sacramento Police Officer Conner Lawrence interviewed defendant on March 1, 2020, and told him they had the Instagram video. Defendant said he had an argument with Doe because she was cheating on him. He said the laceration over Doe's eye was an old injury not from him. Defendant said the blood in the vehicle was also old. Defendant admitted holding the bat and said he used it to "flex a little bit more with her."
DISCUSSION
I
Doe's Statements to the Police
Defendant contends the admission of Doe's statements to the police violated his right to confrontation. We disagree.
A. Background
The prosecution moved pretrial to admit Doe's statements to the police. The following facts were adduced at the Evidence Code section 402 hearing on the matter.
On March 23, 2020, defendant called Doe from the Sacramento County jail. During the call, defendant told Doe she should try to "write a email explaining, you know, saying everything. Because at this stage of the game, they'll be fixing to let go folks out the people. I might qualify for that shit." He told Doe, "I don't feel its right for me to be up in here and you doing you know what I'm saying. You living your life and I'm up in here you just feel me." Defendant said that he wanted to "be able to live my life how you living yours right now," and "for that to happen shit, you gotta do some things sh- you know, to fix what occurred."
After telling Doe that his attorney had told him about her statements to the police, defendant said, "All that shit was fairy tale, you feel me. So you have to fix that somehow, someway, I don't know the procedures or what you gotta do to go about. But I would truly appreciate that. So I can go on about my life." He later told Doe, "Like, come on, baby. Now, you supposed to better than that for me. I thought you was gonna really hold me down and represent me the right way. But I'm feeling and you gotta understand. . . we done shared something intimately before, right? So, every time you're doing something, I feel every time you do it." Doe replied, "Yeah, when we were good we shared."
When Doe later called defendant a "weirdo," he replied, "You is hella out of pocket," and later told her, "why is you being so difficult . . . ? Like this . . . is some out of pocket shit ever love."
On July 20, 2020, Doe was served with a subpoena to appear in court for this case. The following day, Investigator Fucles received a voicemail from Doe expressing concerns about being contacted by defendant. Fucles called Doe at the number she provided. Doe told Fucles she did not want defendant to be able to contact her on a different number, and that she wanted a restraining order against him. Doe told Fucles that defendant had not threatened her, but he had told Doe not to testify.
A no-contact order was issued on July 28, 2020.
On August 19, 2020, Fucles and Doe made plans to meet in two days. Fucles called and texted Doe after she failed to show up; Doe replied that she had a family emergency and needed to reschedule. They agreed to meet on August 24, 2020, but Doe neither appeared nor responded to Fucles' messages. Fucles drove to an address Doe gave her; the man who answered the door said Doe was not present and did not live there. Fucles texted Doe the following day to remind her of her August 2020 court date, but Doe did not respond.
Doe was scheduled to appear in court on August 26, 2020. While Doe responded to Fucles' text that day and affirmed she was coming, Doe did not appear. Doe called Fucles at the end of the day and asked if a warrant had been issued for her. Fucles told her a stayed bench warrant was issued that day. They agreed to meet on September 2, 2020.
On August 31, 2020, Doe received a call from another Sacramento County jail inmate, Devon Smith. Smith told Doe that "Kinki" was going to court that day and he "just want to make sure you don't come and shit like that." Doe replied that she was not going to court. Smith told Doe, "Alright Yeah well he said try to uh he said he said if you had me and he said stop talking to the DA you know what I mean cause he's trying to get out and shit and he said just uh he says it's just uh you know like uh it's probably just play things in his favor do you know what I mean?. . . .Because the negative is trying to he's trying to beat this case you hear me?" Doe stated that she understood.
The prosecutor argued that while the transcript read, "Kinki," the recording actually sounded like, "Ken-Ken," a reference to defendant, Kenneth Hawkins. The prosecutor also noted there was a reference to defendant as "Ken-Ken" in a September 9, 2020, call from Sacramento County jail.
Smith continued, "And he's going to trial today so you just want to make sure that you don't you know I mean just don't show up to like no court date you know they just they'll stay away from the DA don't talk to him and everything like that hear me?" Doe replied, "Uh huh."
Doe did not show for her September 2, 2020, meeting with Fucles. Doe did not reply to a text message from Fucles offering to pick her up.
Fucles found that an ad featuring Doe was posted in Palm Springs on September 7, 2020. The following day, Fucles texted Doe a reminder that she had to be in court the next day. Doe replied "okay." Doe did not show up for her September 9, 2020, court appearance. Fucles could not find Doe at two of her known addresses. She also left a voicemail and sent her a text message that showed a read receipt.
On September 9, 2020, defendant made a call using another inmate's PIN to Doe's number and spoke to a woman other than Doe. Defendant told the woman she needed to "knock her." The woman asked, "Knock who?" and defendant replied, "The one you been tappin in with? Man you need to go ahead and knock her bruh." When the woman said she was not doing it, defendant told her, "[Y]ou're doing what we have to do to in order for us to win."
The woman asked defendant what happened in court. He replied that a bench warrant was issued for "lil mama that I'm in here for." Defendant told the woman, "Now, they're like, if she uses her identification or anything, they can use it to hunt her down, so now they're on a hunt trying to like find out where this person is through her phone, or um, you know what I am saying. Trying to track her down . . . ." He later said, "so they may more than likely just drop this case but they're like, 'you're [sic] honor if we arrest her, we gonna bring her in, in cuffs,' you see what I'm saying. If she's not in our county, we can have her arrested in whatever county she's in and then ship her back to our county. You see what I'm saying so at the end of the day all she gotta do is lay low. Stay out of the way and don't come in contact with no police." The woman replied, "Well, I'll tell her that when I talk to her."
Defendant told the woman, "I aint supposed to have no contact with her, even though I want to talk to her hellabad, you feel me, I aint gonna lie, I'm trying to slide up to her." Later, the woman told defendant that upon hearing that "she put your ass in jail [N-word] I beated her ass and I don't give a fuck but for her just to think it's okay and have my [N-word] or my husband in jail behind your ass, bitch no." The woman had asked Doe to go to Las Vegas with her, but she declined. Defendant replied, "All we on is making sure motherfuckers is in the right state of mind."
Defendant said that if "she go to court, I'll get sixty years because no matter what she say, they're going to go off the paper." When the woman responded, "what if she go to court and say that was all a lie," defendant countered, "they gonna put her on the stand and say that she lying." Defendant told the woman, "All they want her to do is get on the stand and say yeah your honor I said that. I get sixty years for that . . . ."
The woman told defendant she talked to "her" last night and she said that she was in Sacramento and wondered if defendant had called her. The woman told her, "I don't want anything to do with you. I'm only dealing with you because Ken Ken wanted me to deal with you." Defendant instructed the woman, "when you do communicate with her, you gotta let her know to stay out the way, you feel what I am saying." When the woman said she would call her, defendant replied, "they're going to drop this but tell her she need to quit communicating with them people. You feel what I'm saying, she need to quit talking to them cause that was making them feel like they got a case. They were still offering me twenty-one years." Defendant reiterated, "she don't need to show up, cause we don't need her getting on the stand. We don't need her getting on the stand." The woman suggested getting her out of town on the train, "because if she's in Sacramento and gets arrested, there's nothing I can do." When defendant asked the woman if she would do everything she could to get him out, the woman replied that she would talk to her and "choke her;" defendant said not to choke her, just "knock her."
The trial court lifted the stay for Doe's bench warrant on September 11, 2020. On September 14, 2020, the prosecutor informed the trial court they could not find Doe over the weekend and summarized the efforts to find her.
Following argument on the People's motion, the trial court ruled:
"The court does find, based upon the hearing had on Friday and the evidence adduced in that hearing and further information provided today, that, A, [Doe], the witness, is unavailable, and that, B, her unavailability was facilitated by Mr. Hawkins, that he engaged in or aided and abetted in wrongdoing intended to procure the unavailability of Ms. Doe as a witness.
"I am satisfied that the elements of Evidence Code 1390 are met squarely here. I do find factually that the specifics of the communications-telephone recorded conversations-standing independently constitute a basis to find that the prior statements are admissible as an exception under [Evidence Code section] 1390.
"I would add that there's another layer of persuasiveness in the People's position on this, and that there's also been evidence-I read the preliminary hearing transcript- that there is a preexisting control relationship between the Defendant and Ms. Doe, which, of course, is not unusual in the situation of the charges presented here, but is not something I'm concluding simply based on the charges. I have looked at actual evidence presented, and I'm satisfied that not only standing alone the evidence I heard on Friday but also the-that's enough to satisfy the [Evidence Code section] 1390 elements, but there's another layer on that cake, and that layer is a control dynamic that it appears [appellant] held over Ms. Doe.
"So the ruling is that the People's motion to admit prior statements-assuming they are otherwise relevant and otherwise admissible under the Evidence Code-shall not be inadmissible as a consequence of being hearsay and that they come within the exception of [section] 1390 of the Evidence Code."
B. Analysis
Defendant contends the trial court's decision to admit Doe's statements to the police under the forfeiture by wrongdoing exception deprived him of his right to confrontation.
Assessing the admissibility of out-of-court statements involves a two-part analysis. (People v. Sanchez (2016) 63 Cal.4th 665, 680.) We must first decide whether the statement is hearsay and if a hearsay exception applies. (Evid. Code, § 1200; People v. Alvarez (1996) 14 Cal.4th 155, 185.) If the hearsay statement is otherwise admissible under a hearsay exception, we next determine whether admissibility is limited by the Sixth Amendment's confrontation clause. (Sanchez, supra, at p. 680.)
As interpreted by the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 and its progeny, the Confrontation Clause generally bars admission of "testimonial" hearsay statements against a defendant unless the declarant is unavailable to testify, and the defendant had a previous opportunity to cross-examine the witness. (Id. at pp. 53-54, 59, 68 [158 L.Ed.2d at pp. 194, 197, 203]; People v. Sanchez, supra, 63 Cal.4th at pp. 680, 687.) One recognized exception to the confrontation clause is when a witness's absence is procured through the defendant's own wrongdoing. (Crawford, supra, at p. 62 [158 L.Ed.2d at p. 199.) This exception, commonly known as "forfeiture by wrongdoing," has its foundation in the equitable maxim that "no one shall be permitted to take advantage of his own wrong." (Reynolds v. United States (1879) 98 U.S. 145, 159 [25 L.Ed. 244, 248].)
The United States Supreme Court has explained the theory behind the forfeiture-by-wrongdoing doctrine in the following manner: "[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system." (Davis v. Washington (2006) 547 U.S. 813, 833 [165 L.Ed.2d 224, 244].) The forfeiture-by-wrongdoing doctrine is "grounded in 'the ability of courts to protect the integrity of their proceedings'" by" removing the otherwise powerful incentive for defendants to intimidate, bribe, [or] kill the witnesses against them . . . ." (Giles v. California (2008) 554 U.S. 353, 374 [171 L.Ed.2d 488, 504] (Giles))
For the forfeiture-by-wrongdoing exception to apply, a defendant must have caused a witness to be unavailable by wrongful conduct intended to cause the witness to be unavailable. (Giles, supra, 554 U.S. at p. 367 ; People v. Merchant (2019) 40 Cal.App.5th 1179, 1185.) The exception applies "not only when the defendant intends to prevent a witness from testifying in court but also when the defendant's efforts were designed to dissuade the witness from cooperating with the police or other law enforcement authorities." (People v. Banos (2009) 178 Cal.App.4th 483, 501.) The exception applies if "at least one" of the defendant's reasons for committing the wrongdoing was to make the declarant unavailable as a witness. (People v. Quintanilla (2020) 45 Cal.App.5th 1039, 1049.)
Forfeiture by wrongdoing is codified in Evidence Code section 1390, which provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement is offered against a party that has engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness." (Evid. Code, § 1390, subd. (a).) The party seeking to introduce evidence under this hearsay exception (here, the prosecution) must establish admissibility in a foundational Evidence Code section 402 hearing. The hearsay may be used in the foundational hearing, but there must also be independent corroborative evidence to support admission of the hearsay evidence at trial. (Evid. Code, § 1390, subd. (b).)
A trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. (People v. Quintanilla, supra, 45 Cal.App.5th at pp. 1049-1050.) But where the issue is whether the trial court erred in finding that the factual predicates for application of Evidence Code section 1390 were met, the substantial evidence test applies. (Quintanilla, at p. 1050.)
Defendant's argument centers on whether the three phone calls from Sacramento County jail admitted at the Evidence Code section 402 hearing provide substantial evidence for the trial court's finding that the forfeiture by wrongdoing exception applies. He notes that the only call between himself and Doe, the March 23, 2020 call, involved no attempt to dissuade Doe from testifying in his upcoming trial. He contends this call involves nothing more than his expressing a belief that he is wrongly in jail and a desire for Doe to make things right by telling officers what really happened. According to defendant, encouraging Doe to "fix" what happened is the opposite of dissuading her from testifying, as remedying her allegedly false narrative would lead Doe to come to court.
Defendant admits it is reasonable to conclude that the unidentified recipient of the second call, the August 31, 2020 call made by Devon Smith, is Doe. He also notes that during the call Smith did try to dissuade Doe from testifying However, defendant claims that Smith's statements during the call that" 'he'" (defendant) wanted Doe to stop talking to the prosecution and that the same" 'he'" (defendant), was going to trial that day and did not want Doe to show up at court, were inadmissible hearsay. Although Evidence Code section 1390 allows for hearsay evidence to be admitted at the hearing to determine whether to apply the wrongdoing by forfeiture exception, defendant argues that Smith's call to Doe involves two levels of hearsay, "as Smith's statements are made out of court and he is supposedly relaying appellant's statements that are also made out of court."
"The hearsay evidence that is the subject of the foundational hearing is admissible at the foundational hearing. However, a finding that the elements of subdivision (a) have been met shall not be based solely on the unconfronted hearsay statement of the unavailable declarant, and shall be supported by independent corroborative evidence." (Evid. Code, § 1390, subd. (b)(2).)
Since defendant's statements are party admissions (Evid. Code, § 1220), there is in fact only one level of hearsay.
Regarding the last, September 9, 2020, call between defendant and an unidentified female, defendant notes that this call was made after Fucles found an ad Doe had posted in Palm Springs the previous week. According to defendant, Doe's decision to leave town before the call cannot be as a result of this call.
Regarding the trial court's finding that defendant exerted a" 'control dynamic'" over Doe, defendant asserts there is no evidence he exercised that control to dissuade Doe from testifying. Defendant concludes the trial court's finding that these three calls establish the elements of Evidence Code section 1390 cannot withstand scrutiny, and the erroneous admission of Doe's statements was prejudicial.
Defendant did not directly ask Doe to refrain from testifying when he called her from the Sacramento County jail. He did tell Doe that her statement to the police was false, it had harmed him, leaving him in jail while she was free, and asked Doe to help him, telling her, "I don't know the procedures or what you gotta do to go about. But I would truly appreciate that. So I can go on about my life." This open-ended request for help does not necessarily suggest that Doe rectify the matter by testifying in court and refuting her prior statements. During the call, defendant suggests a different means of helping him, asking Doe to "write an email explaining everything, you know, saying everything" and to "fix what occurred." Although defendant never addressed whether Doe should testify, he did try to instill guilt in her for her statements to the police implicating him when he told Doe it was not right for him to be in jail while Doe was "living your life . . . ." Defendant also told Doe that she was "out of pocket," which according to Fucles' testimony at the hearing, refers to a prostitute not behaving or acting in a manner that her exploiter expects.
Although defendant did not directly ask or tell Doe not to testify, after Doe was subpoenaed, she told Fucles that defendant had contacted her and told Doe not to testify, which in turn led to the no-contact order. This in turn must be evaluated in light of that other factor cited by the trial court, the preliminary hearing testimony regarding defendant's relationship with Doe. The preliminary hearing testimony largely consisted of Officer Nelson and Detective Collins relating the contents of their respective interviews with Doe. This testimony included Doe describing to Officer Nelson how defendant acted as her pimp and how he would use violence against her, how he had threatened to harm Doe and those with her if she ever left him, and how he would monitor Doe when she was working to control her. Doe's reaction to defendant's conversation is better understood and more reasonable when viewed in the context of their relationship. (See Giles, supra, 554 U.S. at p. 377 [noting that "[a]cts of domestic violence often are intended to dissuade a victim from resorting to outside help . . . ."]; Davis v. Washington, supra, 547 U.S. at pp. 832-833 [165 L.Ed.2d at pp. 243-244] [domestic violence offenses are notoriously susceptible to intimidation or coercion of the victim].)
The second and third calls both show that attempts were made to directly dissuade Doe from testifying in defendant's case. The unidentified woman with whom defendant spoke in the third call told defendant she had contacted Doe and took instructions from defendant on what to do when she contacted Doe again. She had apparently already contacted Doe before the call, as she told defendant she had beaten Doe after the woman heard that Doe was responsible for defendant being in jail. During the call, defendant correctly states that having Doe appear and refute her prior statements through testimony would not prevent the prior statements from being admitted into evidence. He accordingly discussed with the woman the importance of Doe not testifying and how to keep her from testifying in his case. During the discussion, defendant tells the woman to "knock" Doe, a reference to hitting her. In so doing, defendant tells the woman that "you're doing what we have to do to in order for us to win." Defendant also admits that he was legally banned from contacting Doe, but nonetheless he was trying to "slide up" to her.
While this conversation took place on September 9, 2020, after Doe had placed an ad in Palm Springs, this does not mean, as defendant argues, that Doe already was rendered unavailable when the third call happened. Although Doe had failed to make appearances or keep appointments associated with the case by the time of this call and had placed the ad in Palm Springs before the call, this call nonetheless took place before the September 11, 2020, Evidence Code section 402 hearing and on the same day Doe had been scheduled to appear in court. The fact that Doe was potentially in another location, such as Palm Springs or Las Vegasat some point before the call does not render her unavailable; she could change her mind and subsequently decide to testify. In the third call defendant expressed his desire for Doe not to testify and instructed the woman he called to keep Doe from testifying. The trial court could reasonably conclude that this was successful, and Doe was persuaded not to testify.
Doe's ad in Palm Springs said that Doe was in Las Vegas.
The third call also provides important context for the second call involving Doe and another inmate at Sacramento County jail, Smith. The third call shows defendant's willingness to employ other inmates to help him keep Doe from testifying without it being traced back to him. There is no evidence that Smith had any prior relationship with Doe or reason to be interested in a case against defendant in which Doe is expected to be the primary witness. Given the circumstances of the third call, it is reasonable to infer that as in that call, the second call involved defendant utilizing a fellow inmate and a third person to keep Doe from testifying without it coming directly from defendant.
In applying the substantial evidence test," a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" (People v. Edwards (2013) 57 Cal.4th 658, 715.) The inferences the trial court made in finding the forfeiture by wrongdoing exception applied were reasonable. Defendant was in an abusive relationship with Doe, told Doe he wanted her to fix the problems caused by her inculpatory statements, and later successfully used other people to try to dissuade her from testifying, in one F case discussing having force used on Doe. This is substantial evidence showing defendant committed acts causing Doe to be dissuaded from testifying, and in so doing intended for her not to testify. Substantial evidence supports the trial court's ruling that the forfeiture by wrongdoing exception applied.
II
Substantial Evidence of Human Trafficking
Defendant contends there is insufficient evidence to support his conviction for human trafficking.
The standard of review for insufficient evidence claims is well-established.
" 'When considering 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.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
"The California human trafficking statute provides, in pertinent part, that '[a] person who deprives or violates the personal liberty of another with the intent to obtain forced labor or services, is guilty of human trafficking.' (§ 236.1, subd. (a).) As summarized in the official standard jury instructions for criminal cases, the elements of this offense are (1) the defendant either deprived another person of personal liberty or violated that other person's personal liberty; and (2) when the defendant did so, he or she intended to obtain forced labor or services from that person. [Citation.] As the phrase is used in the definition of this crime, unlawful' "[d]eprivation or violation of the personal liberty of another" includes substantial and sustained restriction of another's liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out.' (§ 236.1, subd. (h)(3).)" (People v. Halim (2017) 14 Cal.App.5th 632, 643. "The total circumstances, including the age of the victim, the relationship between the victim and the trafficker, . . . and any handicap or disability of the victim, shall be factors to consider in determining the presence of 'deprivation of liberty' . . . ." (§ 236.1, subd. (i).)
Defendant asserts that Doe's history of engaging in prostitution both before she met defendant and after their relationship was severed is "a factor when considering whether the offense involves force, fear, or violence." He finds that the record "upon careful examination, reveals two things; that S. did not prostitute herself out of force, fear, or violence coming from appellant, and that this record is insufficient to support the conviction because of the incomplete and fragmentary nature of the statement given by S. to officers." According to defendant, his testimony provides the only complete picture of his relationship with Doe. He notes Doe's statement that she gave defendant $500 during the time they were together is inconsistent with a finding that he deprived Doe of her liberty in order to force her to engage in prostitution. Defendant also points out alleged inconsistencies in Doe's statements, such as her claiming to give $100 out of every $150 she made, meaning that if she gave him a total of $500, then Doe made only $750 during the two month period they were together.
Defendant claims the prosecution's theory of guilt was based on snippets from Doe's statements to law enforcement, but those statements, when viewed as a whole, show Doe was only referring to a domestic dispute. According to him, the prosecution relied on Doe's statement, "I be, like, get away from me. Leave me alone, and he'll come back and chase me down the street or do anything, and I'll be like, just get away from me," but this statement was immediately preceded by her saying, "when he kicked me out his car and told me to get away from him, he comes back and follows me. . . he come back and follows me." He finds this entire snippet showing a domestic dispute rather than defendant depriving Doe of her liberty.
According to defendant, there are two conclusions that can be drawn from the evidence, either Doe earned a lot of money and gave defendant only a little or she earned only a little money and thus did not work much as a prostitute. He argues both conclusions are inconsistent with a finding that he restricted Doe's liberty within the meaning of section 236.1 and accordingly did not commit the crime of human trafficking.
Defendant's argument misapplies the standard of review for the sufficiency of the evidence. An apparent or possible inconsistency in the victim's account does not invalidate the portions of the victim's statement which establish the element of the charged offense." 'Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.' [Citation.]" (People v. Brown (2014) 59 Cal.4th 86, 106.) The fact that Doe said she gave defendant only $500 does not invalidate her statements that she made good money working as a prostitute or that she gave defendant $100 out of every $150 she earned. Detective Collins provided expert testimony that some sex workers would minimize their experiences and that Doe did this when she said defendant was not very "pimpy." The jury could reasonably infer Doe was minimizing when she said she gave defendant only $500, and in fact gave much more, as her other statements to the police showed she made much more than $750 during the two months defendant was her pimp. Doe's statements and her text messages with defendant showed he exerted control over her sex work, provided her with transportation, and would have to engage in sex work when she did not want to. Defendant would also use violence or the threat of violence to enforce his dictates.
For example, Doe told Officer Nelson she made $400 a night, working every other night. If she worked 30 nights during the two months defendant was her pimp, Doe would earn $12,000, and if she gave defendant two-thirds, he would get $8,000.
Doe told Detective Collins that defendant was "[j]ust tryin' to get money out of me- being my pimp and if I didn't follow his instructions and his directions, then that's when he put his hands on me." Likewise, when she once asked to be taken home, defendant told Doe, "I'm not gonna take you home, you're gonna be with me for the rest of your fucken life . . . ." Doe also said she at times was forced to engage in sex acts with others when she did not want to because defendant would "just get's mad and expects me to listen to what he tells me."
The parking lot incident is particularly vivid evidence of defendant's use of violence and humiliation to exert control over Doe's sex work. According to Doe's statement, the incident was precipitated by a dispute between defendant and Doe over sex work; defendant wanted to get money from a "trick", but Doe walked the wrong way. Doe's statements, Tran's testimony, and the parking lot video show that defendant struck Doe, threatened her with a baseball bat, and had his associates surround and yell at her so she would perform oral sex on the man against her will. Even if no money was exchanged for the sex act (or simulated sex act if Doe's statement is believed), this supports defendant's use of threats and violence to get Doe to comply with his directives over her sex work.
The fact that defendant's testimony paints a more consistent and self-servingly exculpatory picture of their relationship is irrelevant. Doe's statements, supplemented by other evidence, provides ample evidence that defendant deprived her of liberty through violence and threats in order for her to engage in prostitution for his financial benefit. Substantial evidence supports the human trafficking conviction.
III
Dueñas
Without objection, the trial court imposed a restitution fine of $8,000 (§ 1202.4); a stayed $8,000 parole revocation restitution fine (§ 1202.45); $120 in court operations fees (§ 1465.8); and a $90 conviction assessment. (Gov. Code, § 70373).
Citing People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant contends the imposition of these fines, fees, and assessments without a finding of his ability to pay deprived him of due process.
Defendant was sentenced on October 16, 2020, long after Dueñas was decided. His failure to raise his ability to pay forfeits the contention on appeal. (Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 489 [finding the defendant did not forfeit Dueñas argument because it was decided after sentencing]; see People v. Aguilar (2015) 60 Cal.4th 862, 866-867 [the defendant's failure to object at sentencing to certain fees on the basis of his inability to pay forfeited the challenge on appeal].)
Our Supreme Court is now poised to resolve the issues raised in Dueñas, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, which agreed with the court's conclusion in Dueñas that due process requires the trial court to conduct an ability to pay hearing and ascertain a defendant's ability to pay before it imposes court facilities and court operations assessments under section 1465.8 and Government Code section 70373, but not restitution fines under section 1202.4. (Kopp, at pp. 95-96.)
In the meantime, we join several other courts in concluding that the principles of due process do not require determination of a defendant's present ability to pay before imposing the fines and assessments at issue in Dueñas and in this proceeding. (People v. Cota (2020) 45 Cal.App.5th 786, 794-795; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40 Cal.App.5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39 Cal.App.5th 1055, 1069; People v. Caceres (2019) 39 Cal.App.5th 917, 928.) Defendant's claim pursuant to Dueñas is without merit.
We likewise reject defendant's claim that imposition without an ability to pay determination constitutes an excessive fine on violation of the Eighth Amendment. (People v. Aviles, supra, 39 Cal.App.5th at pp. 1069-1072.)
Since we find the claim to be without merit, we need not address defendant's claim that the failure to raise an objection below was ineffective assistance of counsel
DISPOSITION
The judgment is affirmed.
We concur: DUARTE, J., KRAUSE, J.