Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. F06904307-6, W. Kent Hamlin, Judge.
Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Rufus Bohnie Levels, Jr. (appellant), was convicted in count 1 of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), in count 2 of corporal injury to a spouse/cohabitant (§ 273.5, subd. (e)), including two prior convictions of violating section 273.5; in count 3 of pimping (§ 266h, subd. (a)); and in count 4 of disobeying a domestic relations order (§ 273.6, subd. (d)). Appellant admitted the “strike” prior conviction that was the subject of three special allegations: that he had previously been convicted of a serious or violent felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)); that he had a prior serious felony conviction (§ 667, subd. (a)(1)); and that he had served a prior prison term (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to a total prison term of 16 years, consisting of the upper term of 12 years (six years doubled) for the pimping conviction, a consecutive two years eight months for the corporal injury conviction, and a consecutive one year four months for the disobeying a domestic relations order conviction. The court struck the section 667.5, subdivision (b) enhancement. It imposed no sentence on the assault conviction of count 1.
On appeal, appellant contends that the trial court erred when it instructed on the pimping allegation, that there is insufficient evidence to support his pimping conviction, that the pimping statute is vague and/or overbroad, that the trial court abused its discretion when it denied his new trial motion, and that CALCRIM No. 220 is unconstitutional. Respondent argues that the abstract of judgment should be amended to reflect that sentence on count 1 was imposed but stayed, pursuant to section 654, and that the case must be remanded to the trial court to impose the mandatory five-year enhancement under section 667, subdivision (a). We reject all of both appellant’s and respondent’s contentions, but nonetheless must remand to the trial court for sentencing on count 1. In all other respects, we affirm.
FACTS
At approximately 4:00 a.m. on June 19, 2006, Jeanette Clayton saw Liza Alvarez at a telephone booth. Alvarez’s eyes were red and she appeared nervous. Alvarez told Clayton that she was trying to hide from her boyfriend. At that point, appellant came up and cursed at Alvarez and hit her. Alvarez fell to the ground and appellant kicked her. Clayton told appellant to leave Alvarez alone, but he told Clayton to mind her own business. Appellant and Alvarez then walked to the Sahara Motel.
Once Alvarez and appellant were inside their room, Clayton could hear Alvarez screaming. Clayton tried to look into the room, but appellant shut the door. Clayton saw appellant swing at Alvarez, and she called 911. The 911 tape was played for the jury. When police arrived, Clayton identified appellant as the person who was beating Alvarez. Clayton saw Alvarez talking with the officers.
Officer James Barnum responded to the June 19 dispatch at the Sahara Motel at 4:50 a.m. When he spoke to Alvarez, who was six months pregnant at the time, he noticed injuries on her face, neck, and arms. She had a bruise below her right eye, an injury to her shoulder, and bruises on her left arm. Alvarez, who was crying, shaking, and short of breath, told the officer that her boyfriend had caused her injuries, but she refused to identify him. She said he had punched her in the face and stomped on her body. Alvarez declined medical treatment.
Alvarez told Officer Barnum that she was a prostitute, and that she and her boyfriend were both drug users. Alvarez stated that she supported herself and her boyfriend by being a prostitute. When asked if there were other instances of abuse, Alvarez told the officer there had been continuous abuse during their relationship, which had become increasingly more violent. Alvarez told the officer the abuse occurred because she “wasn’t improving their quality of living”; she wasn’t making enough money to get them out of “a perverted living condition.”
Alvarez told the officer that there was an active restraining order against her boyfriend, but she refused to name him because she was afraid of him. Alvarez told the officer that if they did not catch him right away, “he was gonna get out and fuck her up or kill her.” Alvarez said, “‘If I tell you his name and press charges, this beating won’t be shit compared to what he’s going to do to me when he gets out.’”
Officer Barnum got appellant’s name from Clayton, who knew him as “Rufus.” Alvarez eventually provided the officer with appellant’s full name. Appellant was found hiding in another room in the motel.
Alvarez did not want to testify at trial. Alvarez and appellant had been together for almost four years, and she considered appellant her “husband,” although they were not married. According to Alvarez, both she and appellant were unemployed, and they asked Alvarez’s father for money to pay for the motel and for food.
Alvarez, who was on probation at the time of the trial, admitted that she had been a prostitute for four or five years. She had been arrested four or five times, including for prostitution. She worked as a prostitute before she met appellant, but claimed to have been out of the business for a year. Alvarez spent most of the money she made from prostitution on drugs, although some of the money was used to support herself and appellant. Alvarez claimed that, when she worked as a prostitute, she did not tell appellant what she was doing. Alvarez insisted that appellant was not her pimp.
Alvarez admitted that she and appellant argued occasionally, but he did not raise his voice or throw things, and he never got very angry. Alvarez claimed that appellant never injured her and she denied speaking to officers about appellant hurting her.
Alvarez claimed not to remember telling officers about an earlier incident in which she and appellant had an argument while at appellant’s mother’s house, and she denied a photograph was taken of those injuries. According to Alvarez, she did not recall any incident in which appellant had injured her.
Alvarez explained that she was working as a prostitute when a “Mexican guy” beat her up and, although she could not remember how long ago the incident occurred, she was pregnant at the time. Alvarez testified that the man hit her and punched her and she could not get away from him. When she did, she went to the Sahara Motel to get help. There she found appellant hugging a “blond haired girl” inside a motel room, which made her angry. Alvarez left the room to call the police and found someone named Jeanette. She asked Jeanette to call the police but did not explain why. Alvarez testified that she refused to answer the officer’s questions and she did not tell them anything about appellant. According to Alvarez, the police just assumed it was appellant who had beaten her. She did not want to talk to the officers because she was using cocaine at the time, and she did not tell the police about the “Mexican guy” because she was angry with appellant.
Alvarez claimed not to be afraid of appellant. Nor was she afraid that if appellant got out of jail, he would be angry because he was charged with the current crimes. Alvarez sent two letters to the court asking that appellant be released. In the second, she explained that someone other than appellant had assaulted her.
Alvarez’s father testified that he observed injuries to his daughter when she came to his house on March 31, 2006, six weeks before the events here in question. Alvarez told her father that appellant had slapped her. Alvarez’s father insisted that his daughter call the police because she was complaining that her head hurt and her eyes bothered her. Alvarez’s father had known appellant to strike his daughter on a prior occasion. He acknowledged that his daughter was a prostitute and that she used crack cocaine.
Officer Trevor Shipman responded to the March 31 dispatch and spoke to Alvarez. Alvarez had “a very large and swollen black and blue left eye.” Alvarez told the officer that she had had a fight with appellant the day before at his mother’s house, during which appellant grabbed her by the neck and slapped her across the face. Alvarez told the officer there had been other instances of abuse, but she had not reported them because she was afraid of appellant.
Katherine Quinn-Crask testified as an expert on Battered Women’s Syndrome. She explained that abused women do not talk freely about the abuse that they experience and often will distance themselves from others in order to avoid discussing the problem. Quinn-Crask explained the various “phases” that victims of domestic violence go through with their abusers, and the various tactics and behaviors of abusive relationships. According to Quinn-Crask, victims of Battered Women’s Syndrome often demonstrate low self-esteem, fear, and will deny that abuse occurred. The victims will often remain with the abusers despite repeated attacks, will not report the abuse, and frequently do not wish to proceed with prosecuting criminal charges against their abuser.
DISCUSSION
1. Did the trial court incorrectly instruct on the elements of section 266h, subdivision (a)? Is there substantial evidence to support the pimping conviction?
Appellant makes two separate claims with regard to his pimping conviction. Both stem from his interpretation that section 266h, subdivision (a) requires a second “knowing” requirement. He contends that the trial court erred when it failed to instruct that appellant, in addition to knowing that Alvarez was a prostitute, also had to “knowingly” derive support from her prostitution earnings. He also contends there was insufficient evidence that he “knowingly” derived support from Alvarez’s earnings. We combine the two issues here and find no prejudicial error.
The crime of pimping, as pertinent here and set forth in section 266h, subdivision (a), provides: “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution … is guilty of … a felony.” Here, the trial court instructed pursuant to pattern CALCRIM No. 1150 as follows:
“To prove that [appellant] is guilty of pimping, the People must prove that: [¶] 1. [Appellant] knew that Liza Alvarez was a prostitute; and [¶] 2. The money/proceeds that Liza Alvarez earned as a prostitute supported [appellant] in whole or in part.”
The instruction as given follows the exact language of the statute.
The court further instructed that pimping was a general intent crime. “[D]eriving support with knowledge that the other person is a prostitute is all that is required for violating the section .… No specific intent is required.” (People v. McNulty (1988) 202 Cal.App.3d 624, 630-631.)
Appellant’s contention that he had to “knowingly” derive support from Alvarez’s prostitution earnings is based on the language in People v. Tipton (1954) 124 Cal.App.2d 213 (Tipton), in which the court addressed a sufficiency of the evidence challenge on a pimping conviction. The statute at issue, Statutes of 1921, chapter 100, page 96, a precursor to section 266h, provided, in relevant part, “‘Any male person who, knowing a female person to be a prostitute, shall live or derive support or maintenance in whole or in part, from the earnings or proceeds of the prostitution of such prostitute … shall be guilty of a felony, to wit: pimping.’” (Tipton, supra,124 Cal.App.2d at p. 217.)
In Tipton, the defendant was convicted of four counts of selling narcotics to a minor and one count of pimping. The principal witness for the prosecution was a 17-year-old minor who lived in a hotel across the street from the defendant. She testified that she was an active prostitute and, although the defendant was not her pimp, she turned over her entire earnings of $30 to $60 per day to the defendant. In return, he provided her with $3 or $4 for food and as much heroin as she needed, which she estimated would have cost her $50 per day. (Tipton, supra, 124 Cal.App.2d at p. 215.)
The defendant claimed the evidence was insufficient to support his pimping conviction because, although he received her prostitution earnings, he furnished her with narcotics worth as much or more than her income. The defendant claimed the minor was simply using her earnings to purchase narcotics. (Tipton, supra, 124 Cal.App.2d at p. 217.)
The court in Tipton disagreed. In doing so it stated:
“Under this statute the prosecution must prove that the accused is a male; that the female is a prostitute; that the defendant knows that fact; that the prostitute has made some earnings from her business, and that the defendant has derived his support in whole or in part from such earnings knowing that the money given him was proceeds from such earnings.” (Tipton, supra, 124 Cal.App.2d at pp. 217-218, italics added.)
The court found that there was sufficient evidence of pimping because the defendant knew the minor was a prostitute, he arranged with the minor to turn over her money for narcotics, and he knew the money he received from her had been earned by her as a prostitute. (Tipton, supra, 124 Cal.App.2d at p. 218.)
Appellant’s contention that the second element of pimping includes a separate knowledge requirement is taken from the italicized language in Tipton. But the plain language of the statute at issue here does not require a second “knowing” requirement. Instead, it requires that the defendant, “knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution .…” (§ 266h, subd. (a).) As stated in People v. McNulty, supra, 202 Cal.App.3d at page 630, which describes the offense as a general intent crime, “[D]eriving support with knowledge that the other person is a prostitute is all that is required for violating the section .…” In addition, the statute “does not require the earnings of a known prostitute to be directly paid by her to the accused person to make him guilty of pimping.” (People v. Coronado (1949) 90 Cal.App.2d 762, 766.)
In instructing a jury, the trial court “must instruct even without request on the general principles of law relevant to and governing the case” and “[t]hat obligation includes instructions on all of the elements of a charged offense.” (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) We do not read the statute to include a second “knowing” requirement.
Even assuming, however, that the instruction given should have included such a second “knowing” element, we conclude the trial court’s error does not require reversal. The failure to instruct the jury on an element of the offense is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24. (People v. Avila (1995) 35 Cal.App.4th 642, 645-646 [failure to instruct on element of charged crime is subject to Chapman test of harmless error].) The error is prejudicial when “the defendant contested the omitted element and raised evidence sufficient to support a contrary finding,” but not when it is clear “beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence.” (Neder v. United States (1999) 527 U.S. 1, 17, 19.)
Appellant does not contest the fact that Alvarez was a prostitute, and he acknowledges that there was “some circumstantial evidence that Alvarez provided at least a small portion of the family’s monthly income from her prostitution activity.” But, he contends there was substantial evidence that family and friends helped Alvarez and him with “the bulk of the reported ‘support’” for their family.
But the amount of money which a defendant receives from the prostitute is irrelevant for purposes of a pimping conviction. (E.g., People v. Jackson (1980) 114 Cal.App.3d 207, 209 [single act of prostitution; defendant received $33]; People v. Courtney (1959) 176 Cal.App.2d 731 [two acts of prostitution; defendant received $20 from the first and undisclosed amount from the second].)
“In order to establish that the accused lived and derived support and maintenance from the earnings of prostitution it is not necessary for the prosecution to prove that the money was expended for that purpose. [Citation.] It is not a defense that the accused had a sufficient income from other sources .…” (People v. Giambone (1953) 119 Cal.App.2d 338, 340, disapproved on another point in People v. Smith (1955) 44 Cal.2d 77, 80-81.)
The overwhelming evidence at trial was that appellant did not work while he and Alvarez lived together and that she worked as a prostitute. And although Alvarez claimed that she used most of the money that she earned on drugs, she admitted that she used her earnings as a prostitute to provide some of their support while she and appellant lived together. Alvarez told Officer Barnum that appellant had abused her in the past because she did not earn enough money for their support. From this evidence, the jury could reasonably infer that appellant knew that Alvarez was a prostitute and that he “derive[d] support or maintenance … in part” from her earnings as such.
The evidence was therefore sufficient to uphold appellant’s pimping conviction.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
We will not reverse unless it clearly appears that on no hypothesis whatsoever is there sufficient substantial evidence to support the jury’s verdict. (People v. Redmond (1969) 71 Cal.2d 745, 755; see also People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
Finding sufficient evidence to uphold appellant’s pimping conviction, we are also satisfied that, in this case, the “jury verdict would have been the same” (Neder v. United States, supra, 527 U.S. at p. 19) had the pimping instruction included an element that appellant knowingly derived support from Alvarez’s earnings as a prostitute.
Appellant also contends that counsel was ineffective for failing to request that the court instruct that the second element of pimping included a knowledge requirement. Because we have addressed the merits of the underlying contention and have concluded there was no error, or that any alleged error was not prejudicial, his related claim of ineffective assistance of counsel fails and requires no further discussion. (People v. Ledesma (2006) 39 Cal.4th 641, 748.)
2. Is the pimping statute unconstitutionally vague and/or overbroad?
Appellant next argues that the pimping statute is unconstitutionally vague and/or overbroad. Specifically, appellant contends that the pimping statute is vague as to him because it “does not provide fair notice to a husband that merely living with an active prostitute will subject him to such serious penalties.” He claims the statute is overbroad because “it prohibits any cohabitant or spouse or even friend from sharing a meal or housing with the prostitute.” We reject both of appellant’s claims.
To withstand a vagueness challenge, a penal statute must satisfy two basic requirements. First, the statute must provide adequate notice to those who must observe it. (People v. Rubalcava (2000) 23 Cal.4th 322, 332; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1116; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1106.) Ordinary people of common intelligence should be able to understand what is prohibited by the statute and what may be done without violating its provisions. (Tobe v. City of Santa Ana, supra, at pp. 1106-1107.) Second, the statute must provide sufficiently definite guidelines for enforcement. A vague law impermissibly delegates policy matters to the police, judges, and juries for resolution on a subjective basis, with the attendant risk of arbitrary and discriminatory enforcement. (People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 390; People v. Ellison (1998) 68 Cal.App.4th 203, 207.)
In determining the sufficiency of the notice, we examine a statute in light of the conduct with which the defendant is charged. If the defendant can reasonably understand by the terms of the statute, either standing alone or as construed, that his or her conduct was criminal and prohibited, the statute is not vague. (United States v. Lanier (1997) 520 U.S. 259, 267; People v. Powers (2004) 117 Cal.App.4th 291, 298.) The terms of the statute can be construed by reference to other legitimate sources such as statutes, legislative history, and judicial decisions. (People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at pp. 1116-1117.)
It is settled that a statute should be construed “in the light of the objective sought to be achieved by it as well as of the evil sought to be averted.” (In re Huddleson (1964) 229 Cal.App.2d 618, 624.) And where the statute encompasses both innocuous and unlawful conduct, it will be given a restrictive interpretation so that it prohibits only the unlawful conduct. (In re Cregler (1961) 56 Cal.2d 308, 311-312.)
Section 266h, subdivision (a) prohibits, as relevant here, “[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person’s prostitution ….” Pimping laws are aimed at discouraging prostitution by prohibiting third parties, who criminally exploit such persons, from expanding an existing prostitute’s operation or expanding the supply of available prostitutes. (People v. Maita (1984) 157 Cal.App.3d 309, 316; People v. Pangelina (1981) 117 Cal.App.3d 414, 424.) The purpose of section 266h is, therefore, “to discourage any … person from soliciting or receiving material gain from the practice of prostitution.” (People v. Smith, supra, 44 Cal.2d at p. 80, italics added.)
Before we address whether the statute is vague as applied to appellant, we must reject appellant’s claim that he is Alvarez’s “common law” husband. Alvarez testified that she and appellant were not married. Common law marriage has been abolished in California. (Knight v. Superior Court (2005) 128 Cal.App.4th 14, 19.) There is no evidence that Alvarez and appellant validly contracted a common law marriage in another state. Therefore, we will refer to Alvarez and appellant as cohabitants but not spouses.
Generally, one may not attack a statute on grounds that are not shown to be applicable to oneself. In addition, the court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. (In re Cregler, supra, 56 Cal.2d at p. 313; Willadsen v. Justice Court (1983) 139 Cal.App.3d 171, 178.) In other words, one who has received fair warning of the criminality of his or her conduct from the statute in question is not entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and liberal ambit. “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” (Parker v. Levy (1974) 417 U.S. 733, 756.)
In any event, married or not, the pimping statute clearly prohibits “any person” from deriving “support or maintenance in whole or in part” from another person’s known prostitution. Pimping does not become legal or constitutionally protected if the person is married to or cohabiting with the prostitute from whom he or she derives support.
Here, the record reveals that Alvarez admitted she was a prostitute, a fact appellant does not contest. There is also evidence that Alvarez’s income derived from her prostitution was used to support appellant, who was unemployed. “[O]ffenders cannot complain of the vagueness of a statute if the conduct with which they are charged falls clearly within its bounds .…” (People v. Weaver (1983) 147 Cal.App.3d Supp. 23, 36; see People v. Nguyen (1984) 161 Cal.App.3d 687, 695.)
Whether appellant realized he was violating the law does not affect section 266h, subdivision (a)’s constitutionality as applied to him. “[W]e ‘require citizens to apprise themselves … of statutory language .…’ [Citations.]” (People v. Heitzman (1994) 9 Cal.4th 189, 200.) They are presumed to know the law (People ex rel. McKune v. Weller (1858) 11 Cal. 49, 65), and ignorance of the law is no excuse for a violation thereof (People v. Mayer (2003) 108 Cal.App.4th 403, 413).
Moreover, “[n]o person of ordinary intelligence would be left guessing as to the meaning of” the statutory language in question here. (People v. Truong (2001) 90 Cal.App.4th 887, 899.) Because the statutory language is sufficiently clear, we reject appellant’s claim that the statute is vague as applied to him.
We next address appellant’s claim that the statute is overbroad on its face because it interferes with the constitutional right of parents and children to live together, or as he states, from allowing “any cohabitant or spouse or even friend from sharing a meal or housing with the prostitute.”
“Statutory overbreadth, as distinct from the related and occasionally overlapping concept of statutory vagueness, is a defect by which a statute, seeking to regulate an area of state interest, reaches too far and punishes innocent behavior.” (People v. Gudger (1994) 29 Cal.App.4th 310, 316.) In accordance with the overbreadth doctrine, a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (NAACP v. Alabama (1964) 377 U.S. 288, 307.) To succeed in a constitutional challenge based on asserted overbreadth, appellant must show that section 266h, subdivision (a) inhibits protected speech or activity (New York v. Ferber (1982) 458 U.S. 747, 768-769), and that the improper impact is substantial as well, judged in relation to the statute’s plainly legitimate sweep. (Broadrick v. Oklahoma (1973) 413 U.S. 601, 615.) A statute is not facially unconstitutional simply because it may not constitutionally be applied to some persons or circumstances. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 424.)
The court rejected a similar argument to that made here in Bailey v. City of National City (1991) 226 Cal.App.3d 1319 (Bailey). In Bailey, the plaintiff’s employment as a police officer was terminated because he violated several police department rules, including one prohibiting continuous personal associations with felons. (Id. at p. 1324.) The plaintiff contended the rule was unconstitutionally overbroad on its face because it could prohibit officers from associating with a variety of persons with whom they should not be prohibited from associating, such as family members, church members, and rehabilitated felons whose convictions happened long ago. (Id. at p. 1330.) Bailey rejected that contention, not because it found the rule was not overbroad, but because it found that the plaintiff lacked standing to assert facial overbreadth. (Ibid.) Bailey stated,
“‘It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand.’ [Citation.] Further, a person to whose conduct a law clearly applies cannot avoid its penalties merely because the statute may be vague or unconstitutionally overbroad when applied to the conduct of others. [Citations.] [¶] There exists, however, an exception to this rule …. When First Amendment concerns are substantially implicated by the challenged statute, the traditional rules of standing are altered to permit attacks on overly broad statutes without requiring the litigant to demonstrate his own conduct could not be regulated by a narrowly drawn statute. [Citation.]” (Bailey, supra, at p. 1331.)
Bailey noted the exception was a narrow one, described by the United States Supreme Court as “‘strong medicine … employed … sparingly and only as a last resort’ [citation] .…” (Bailey, supra, 226 Cal.App.3d at p. 1331, quoting Broadrick v. Oklahoma, supra, 413 U.S. at p. 613.) The exception “is rooted in the special solicitude the courts afford to First Amendment values, and reflects the concern that the existence of an overly broad statute directed at activity sheltered by the First Amendment may ‘chill’ protected activity. [Citation.] However, because the overbreadth doctrine is ‘strong medicine,’ it has been limited to (and not recognized outside of) the First Amendment context. [Citations.]” (Bailey, supra, at p. 1331.)
Bailey then noted the distinction between two different forms of “freedom of association”: (1) the right of expressive association, which is the right to engage in activities protected by the First Amendment, including speech, assembly, petition for redress of grievances, and the exercise of religion, and (2) the right of intimate association, which is the right to enter into and maintain certain intimate human relationships. (Bailey, supra, 226 Cal.App.3d at p. 1331, citing Roberts v. United States Jaycees (1984) 468 U.S. 609.) Finding that the laws regulating purely social relationships that lack a significant expressive component are not subject to a First Amendment overbreadth challenge, the court rejected the defendant’s overbreadth argument because the challenged rule on its face regulated only intimate associations and not expressive associations. (Bailey, supra, at p. 1332.)
Similarly, the statute at issue in this case does not on its face regulate any expressive association protected by the First Amendment. It does not seek to regulate speech, but conduct, and, in any event, regulates only conduct that is criminal. Section 266h, subdivision (a) regulates association that is directed towards the perpetuation of criminal activity, that is, living or deriving support or maintenance in whole or in part from the earnings or proceeds of a known prostitute. The right of association is affected only to the extent the purpose of association is the perpetuation of criminal activity, “and there is no right of association to engage in criminal conduct.” (People v. Gamez (1991) 235 Cal.App.3d 957, 971 [addressing an overbreadth argument to § 186.22, the “criminal street gang” statute], disapproved on other grounds in People v. Gardeley (1996) 14 Cal.4th 605, 624, fn. 10.) Section 266h, subdivision (a)’s sweep is not overbroad.
3. Did the trial court err when it denied appellant’s new trial motion?
After the verdict, appellant informed the trial court that, in his view, counsel had not actively investigated his case. In response, the court appointed independent counsel to review the case and determine whether a motion for a new trial based on ineffective assistance of counsel was warranted.
Appellant’s newly appointed counsel subsequently filed a new trial motion, which included declarations from two witnesses he argued should have been called on appellant’s behalf. One declaration, signed by Clara Cheramie, stated that she was with appellant from midnight through approximately 5:00 a.m. on June 19, 2006. She stated that she was with appellant in a room at the Sahara Motel when Alvarez entered the room and discovered her with appellant. Alvarez appeared to have been beaten about the head and face.
The second declaration, by Edward Vander, stated that he was at the Sahara Motel between midnight and 5:00 a.m. on June 19, 2006, and that he observed appellant sneaking around with a white female. Vander thought appellant and the female were trying to avoid Alvarez. Vander stated that Alvarez returned to the motel “[d]uring the morning hours of June 19, 2006, … covering her face.”
The new trial motion also named several other potential witnesses—Desmond Mosley, “Mercedes,” “E.,” and “Roscoe”—who purportedly would testify about the alleged assault on Alvarez by a male of “Mexican descent.” Counsel argued that, but for trial counsel’s lack of investigation, appellant might have had a different result at trial.
The judge, who had presided over the trial and heard the new trial motion, first noted that he would only consider the attached declarations of Cheramie and Vander, as there was “nobody before me by oath or otherwise whose [sic] named Desmond Mosley, Mercedes, E. or Rosco … [a]nd … I don’t have any credible evidence from any such person.” The court then concluded that appellant’s trial counsel’s performance was not deficient in his failure to locate Cheramie or Vander. The court stated that, while counsel did not meet with appellant “as much as he might have liked,” neither appellant nor Alvarez “produce[d] any name for this person or the individual with whom [appellant] was present, the person he was hugging on. That name never surfaced until months after the trial … concluded.” The court found the information was not available to defense counsel and “it would not have been discovered by him with more time and further investigation.” The court also noted that Vander’s opinion that appellant and another woman “were skulking around to hide from [Alvarez was] nothing more than an opinion,” and therefore inadmissible in court.
The trial court found “no deficiencies in counsel’s efforts,” and, in fact, found his performance as defense counsel “zealous as always” and “most aggressive in his attack on the key witness in this case, Ms. Clayton.” The court found defense counsel’s presentation of the defense case to be “most thorough.” Noting that the prosecution presented a strong case, the court also found appellant suffered no prejudice.
In appropriate cases, a defendant is entitled to a new trial if he or she received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) The determination of a motion for new trial rests so completely within the trial court’s discretion that its ruling will not be disturbed on appeal absent a manifest and unmistakable abuse of discretion. (People v. Delgado (1993) 5 Cal.4th 312, 328; see also People v. Davis (1995) 10 Cal.4th 463, 524 [“A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion”].)
To establish ineffective assistance of counsel, appellant must prove not only that he received representation below an objective standard of reasonableness, but that there is a reasonable probability he would have received a more favorable result but for the deficient representation. (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)
Where the ineffective assistance of counsel claim is presented by a motion for new trial (People v. Chavez (1996) 44 Cal.App.4th 1144, 1148), reviewing courts have recognized that the trial court is in the best position to determine both competence and prejudice when assessing the new trial motion; therefore, an appellate court gives great deference to the trial court’s factual determinations and will not disturb the lower court’s ruling absent an abuse of discretion. (People v. Aubrey (1999) 70 Cal.App.4th 1088, 1104, disapproved on other grounds in People v. Rubalcava, supra, 23 Cal.4th at p. 334, fn. 8.)
We agree with the trial court’s conclusion regarding prejudice and therefore need address only that prong of the ineffective assistance of counsel claim. (In re Fields (1990) 51 Cal.3d 1063, 1079 [“‘a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies [if] it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice’”].)
The proffered testimony of witness Cheramie did little to support appellant’s claim of innocence. Alvarez’s testimony—that she was beaten by an unknown Mexican male and when she returned to the motel she saw appellant with another woman—is hardly believable in light of her further testimony that she asked Clayton to call the police, but did not tell her why, and when police arrived, she did not tell them about the Mexican male because she was angry with appellant. In contrast, the testimony of Alvarez’s father, Clayton, and the officers who responded to both the previous and current incidents was strong evidence that it was appellant who had beaten Alvarez.
Given this evidence, it was not reasonably probable appellant would have obtained a more favorable result had defense counsel called Cheramie as a defense witness.
The trial court did not abuse its discretion in denying appellant’s motion for new trial based on ineffective assistance of counsel.
4. Is CALCRIM No. 220 constitutionally defective?
Appellant contends that instruction in the language of CALCRIM No. 220 violated his federal right to due process because it prevented the jury from considering the lack of evidence in determining whether a reasonable doubt existed as to his guilt. We disagree.
CALCRIM No. 220, as read to the jury, stated:
“The fact that a criminal charge has been filed against [appellant] is not evidence that the charge is true. You must not be biased against [appellant] just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves [appellant] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Appellant refers specifically to the portion of CALCRIM No. 220 instructing the jury to “compare and consider all the evidence that was received throughout the entire trial,” and he argues reasonable doubt may arise from the lack of evidence as much as from the evidence presented at trial. Based on this contention, defense counsel requested a pinpoint instruction which stated, in pertinent part:
“Reasonable doubt is a doubt … arising from the consideration of the evidence, the lack of evidence, a conflict in the evidence, or a combination of these.”
In People v. Flores (2007) 153 Cal.App.4th 1088 (Flores), this court found no violation of the defendant’s federal constitutional rights in the language of CALCRIM No. 220. Despite appellant’s attempts to distinguish the case from his own, this court specifically addressed a contention that the instructions denied a defendant’s federal right to due process because it prevented the jury from considering the lack of evidence in determining whether a reasonable doubt existed as to the defendant’s guilt. (Flores, at pp. 1091-1092.) We held in pertinent part:
“The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361-362 & cases cited therein.) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is ‘whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.’ (Id. at p. 6.) ‘“The essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings.” [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed “ambiguous,” it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]’ (Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 820-821; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
“Here, the plain language of the instruction given tells the jury that ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.’ (CALCRIM No. 220.) … The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. In addition, the trial court instructed the jury with CALCRIM No. 355, which specifically stated that a defendant ‘may rely on [the] state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt.’” (Flores, supra, 153 Cal.App.4th at pp. 1092-1093.)
In the instant case, as in Flores, the trial court instructed the jury with CALCRIM Nos. 220 and 355. Appellant acknowledges our holding in Flores, as well our decision in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, but claims his case is factually distinct because it involves “a case where the ‘victim’ testifies that the incident did not occur as alleged.” For purposes of this issue, we fail to see the distinction, and in view of our holding in Flores, we reject appellant’s challenge to CALCRIM No. 220.
5. Did the trial court err when it failed to impose the section 667, subdivision (a) enhancement?
The trial court sentenced appellant to a total of 16 years in prison, consisting of 12 years on the pimping conviction, two years eight months on the corporal injury conviction, and one year four months on the disobeying a domestic relations order conviction. Respondent contends that the case should be remanded for the court to impose the mandatory five-year enhancement pursuant to section 667, subdivision (a). Appellant disagrees, stating that the enhancement does not apply because his current convictions are not serious offenses. We agree with appellant.
Appellant does not take issue with, and we accept as correct, respondent’s assertion that if error occurred it resulted in the imposition of an unlawful sentence, which respondent is permitted to challenge either by way of its own appeal or in connection with appellant’s. (People v. Johnwell (2004) 121 Cal.App.4th 1267, 1283-1284.)
At trial, appellant admitted that, as alleged, he had been convicted previously of a serious or violent felony (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that he had a prior serious felony conviction (§ 667, subd. (a)(1)), and that he had served a prior prison term (§ 667.5, subd. (b)), all based on a 1997 conviction for robbery (§ 211).
Section 667, subdivision (a)(1) provides a five-year sentencing enhancement for a person convicted of a serious felony who was also previously convicted of a serious felony. Serious felonies are those set forth in section 1192.7, subdivision (c). None of the offenses for which appellant was currently convicted—sections 245, subdivision (a)(1), 273.5, subdivision (e), 266h, subdivision (a), and 273.6, subdivision (d)—are specifically listed in this statute.
Appellant’s only possible serious offense was for the assault in count 1. Section 245, subdivision (a)(1) may be violated by committing an assault either with a deadly weapon or by means of force likely to produce great bodily injury. But not all assaults in violation of section 245 constitute serious felonies. (People v. Equarte (1986) 42 Cal.3d 456, 462; People v. Winters (2001) 93 Cal.App.4th 273, 275.) Section 1192.7, subdivision (c)(31) categorizes as serious only “assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245.” In addition, any felony in which the defendant “personally inflicts great bodily injury on any person, other than an accomplice” or “personally used a dangerous or deadly weapon” is serious. (§ 1192.7, subd. (c)(8), (23).) Thus, assault by means of force likely to produce great bodily injury, but without use of a deadly or dangerous weapon, does not constitute a serious felony unless the defendant actually and personally inflicts great bodily injury.
The information here did not allege that great bodily injury had been inflicted. Neither the jury nor the trial court made any finding that appellant had inflicted great bodily injury. The jury was instructed pursuant to CALCRIM No. 875 that, in order to convict appellant of assault with force likely to produce great bodily injury, the People had to prove that:
“1A. [Appellant] did an act that by its nature would directly and probably result in the application of force to a person, and [¶] 1B. The force used was likely to produce great bodily injury; [¶] 2. [Appellant] did that act willfully; [¶] 3. When [appellant] acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone; and [¶] 4. When [appellant] acted, he had the present ability to apply force likely to produce great bodily injury to a person.”
In addition, while the jury was instructed that “[g]reat bodily injury means significant or substantial physical injury” it also was instructed that “[n]o one needs to actually have been injured by [appellant]’s act.”
The verdict form stated that the jury found appellant “guilty of a violation of Penal Code section 245(a)(1), Assault by Means Likely to Produce Great Bodily Injury, as charged in Count 1 of the Information .…”
Respondent states that the section 667, subdivision (a)(1) serious felony enhancement was admitted by appellant at the bifurcated proceeding at trial, suggesting that the serious nature of his current offense was also admitted. But a review of the reporter’s transcript reveals that appellant admitted only the fact of his prior conviction. The trial court asked appellant whether he had “suffered the prior and that [he] remained out of custody for less than five years after the commission of that prior and the commission of the present offense.” Appellant replied “Yes.” No mention was made of the current offense or its seriousness.
Because appellant expressly waived his right to have a jury determine any aspect of the truth of the section 667, subdivision (a)(1) enhancement allegation, the court could have legitimately determined the seriousness of the current offense. (People v. Yarbrough (1997) 57 Cal.App.4th 469, 478.) But it did not do so.
There is no mention of the section 667, subdivision (a)(1) enhancement in either the probation report or the sentencing transcript. The probation report recommended that the instant offense be doubled by the prior strike and that the one-year prior prison term enhancement be imposed, but it made no mention of the section 667, subdivision (a) allegation. Neither did the trial court discuss the section 667, subdivision (a) allegation at sentencing. The closest it came was when, only in passing and while discussing appellant’s motion to strike his prior strike, the court stated it was declining to do so because, “[b]oth the prior and present offense are violent and serious.”
From this record, even were we permitted to do so (which we do not decide), we could not attribute to the trial court an implicit finding of seriousness on the assault conviction. Under the circumstances, the section 667, subdivision (a)(1) enhancement was properly not imposed upon appellant.
6. Must the abstract of judgment be corrected?
At the sentencing hearing, the trial court imposed sentence on counts 2, 3, and 4, but made no mention of count 1. The probation report recommended that the sentence on count 1 be stayed pursuant to section 654, and the minute order indicates that count 1 was stayed pursuant to section 654. Count 1 does not appear on the abstract of judgment. Respondent contends the abstract of judgment should be corrected to reflect the stayed sentence on count 1. We find, instead, that the case must be remanded for sentencing on that count.
“In a criminal case, judgment is rendered when the trial court orally pronounces sentence. [Citations.]” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.) Because appellant was convicted on count 1, the trial court was required to pronounce sentence with regard to count 1, and was required to do so orally and in appellant’s presence. (§ 1193; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Hartsell (1973) 34 Cal.App.3d 8, 13.) The minute order and abstract of judgment are documents prepared by the clerk. They cannot add to or modify the judgment. (People v. Mesa, supra, at p. 471.) The purported sentence on count 1 as set forth in the minute order is therefore invalid.
Although section 654 appears to require a stay of any sentence on count 1, and remand may be an inefficient use of limited public resources, the power to sentence and discretion in selecting a sentence are vested solely in the trial court. We cannot step into the position of the trial court and impose a sentence where that court failed to do so. Accordingly, we must remand for sentencing on count 1.
DISPOSITION
The convictions are affirmed. The sentence is reversed and the matter is remanded for resentencing consistent with this opinion. The clerk of the superior court is directed to prepare an amended abstract of judgment and to transmit it to the Department of Corrections and Rehabilitation.
WE CONCUR: LEVY, Acting P.J., GOMES, J.