Opinion
F074465
05-09-2017
In re MICHAEL F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL F., Defendant and Appellant.
Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 09CEJ601309-4, JJD069516)
OPINION
THE COURT APPEAL from an order of the Superior Court of Fresno County. Michael J. Idiart, Judge. Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Peña, J.
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Appellant Michael F., a minor at the time of his offense, appeals from the juvenile court's dispositional order declaring him a ward of the court. Following a contested hearing on a petition filed under Welfare and Institutions Code section 602, appellant was found to have committed the crimes of pimping (Pen. Code, § 266h, subd. (a); count one) and collecting or receiving proceeds from prostitution (§ 653.23, subd. (a)(2); count two). Appellant contends insufficient evidence supports the juvenile court's true findings on these offenses. For the reasons set forth below, we affirm in part and reverse in part.
All further references are to the Penal Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2016, Visalia Police Officer Michael Elliott was working as a "john" (undercover decoy) in a human trafficking and prostitution sting at a Motel 6 in Visalia. Visalia Police Officer Jared Garcia had arranged for a suspected prostitute, M.M., to arrive at the Motel 6. Officer Garcia had located an ad posted on a website and, through that ad, contacted M.M. to initiate a paid sexual encounter. Officer Garcia texted M.M. a room number at the Motel 6 and observed as she arrived in a black car with two men. M.M. left the car and walked to the designated room.
Officer Elliott met with the suspected prostitute and agreed upon a set of sexual services and a price of $200. After placing the agreed-upon amount of money on the counter, Officer Elliott gave the bust signal, causing other waiting officers to arrest the suspected prostitute. As part of the bust, Officer Garcia also arrested the two men in the black car that had arrived with M.M. One of those men was appellant.
Upon questioning, appellant admitted he had driven M.M. to the Motel 6 so she could get money for a date and that he expected to receive approximately $20 for gas money. A search of appellant's phone revealed several text messages between him and M.M. One of the text messages appellant sent to M.M. read, "Reply to your dates, and have some dough." Officer Garcia explained the message showed appellant "was telling her to reply to the dates where she's engaging in acts of prostitution and bring back money, which in turn would benefit him." Another text read, "I'm trying to watch you stack some money," which Officer Garcia explained meant, "Make more money. Continue what you're doing," in the context of a prostitute/pimp relationship. A third text message read, "you know who daddy is." Officer Garcia explained, " 'Daddy' is a common term used by prostitutes referring to their pimps." Finally, Officer Garcia explained that a fourth text message, from M.M. to appellant reading, "I would give you anything from 0 to $100," meant appellant was profiting off M.M.'s prostitution.
M.M. testified at appellant's hearing that she was appellant's girlfriend. She admitted to going to the Motel 6 in Visalia for a date, where she would receive money for sexual intercourse. M.M. stated she had arranged the date through a website advertisement. M.M. confirmed appellant had posted the ad, but testified he did not usually post her ads, had posted less than 10 of them, and had only begun doing so because she did not understand how to utilize a new payment method. M.M. confirmed appellant had known she was going on a date when he drove her from Fresno to Visalia and testified appellant was waiting for her because he was her ride home. M.M. stated she did not give appellant any money for driving her to the Motel 6 and, when asked if she ever gave him money, stated, "No, not usually." M.M. denied that her text message stating she would give appellant "anything from 0 to $100" meant she had given appellant money in the past, and generally denied knowing what any other text messages meant.
Based on this incident, appellant was subjected to a petition under Welfare and Institutions Code section 602 alleging he committed the crimes of pimping and collecting or receiving proceeds from prostitution. With respect to the pimping charge, and relevant to this appeal, the petition alleged appellant "unlawfully, and knowing [M.M.] to be a prostitute, as to the above count, live[d] and derive[d] support and maintenance in whole and in part from the earnings and proceeds of said person's prostitution and from money loaned and advanced to and charged against said prostitute by a keeper, manager, and inmate of a house and other place where prostitution was practiced and allowed." At appellant's hearing, the People's exclusive argument for conviction was that the evidence supported the allegation appellant derived support and maintenance from the earnings and proceeds of M.M.'s prostitution.
Following the testimony and argument, the juvenile court requested a copy of the jury instructions for count one, which defense counsel provided. The court then ruled as follows:
THE COURT: "As to Count No. 1, violation of [section] 266h, subdivision [a], I do find that count to be true. I believe that count is true under the CALCRIM instruction, both the bracket in paragraph 2 -- the first bracket in paragraph 2, as well as the third bracket in paragraph 2. I think there [is] sufficient evidence to prove that beyond a reasonable doubt, that although some of the evidence is circumstantial, I think that there is sufficient evidence, and if there is no reasonable interpretation other than, that count is true. [¶] As to Count No. 2, I also find that count to be true beyond a reasonable doubt based on the evidence provided in this case."
The brackets referenced in CALCRIM No. 1150 are alternative ways of proving the pimping charge. Bracket one, entitled "<Alternative 2A—money earned by prostitute supported defendant>" states, "[2. The (money/proceeds) that __________ <insert name> earned as a prostitute supported defendant, in whole or in part(;/.)]." Bracket three, entitled "<Alternative 2C—defendant asked for payment>" states, "[2. The defendant asked for payment or received payment for soliciting prostitution customers for __________ <insert name>(;/.)]."
No objection followed the juvenile court's statement regarding the basis for the true findings and the matter was continued for disposition. Appellant was ultimately adjudged a ward of the court and committed to the Juvenile Justice Campus for 60 days, to be served at the Fresno County jail, along with other terms and conditions.
This appeal timely followed.
DISCUSSION
Appellant's Pimping Conviction
Appellant raises several arguments with respect to his pimping conviction. First, appellant argues the evidence was insufficient to support a finding he committed pimping under the support argument covered by CALCRIM No. 1150, Alternative 2A. In particular, appellant argues there exists a lack of evidence showing appellant ever received funds from M.M.'s prostitution upon which he could support himself and insists this version of the crime was the only version with which he was charged. Thus, according to appellant, at most he could be convicted of attempted pimping, which was not charged. The People concede there is a lack of evidence appellant received funds from M.M.'s prostitution, and do not attempt to argue the evidence was sufficient for conviction under CALCRIM No. 1150, Alternative 2A, instead arguing the evidence was sufficient under CALCRIM No. 1150, Alternative 2C. The People respond to appellant's claim that only one form of the pimping allegation was properly before the court by alleging appellant has forfeited this claim by failing to object.
Standard of Review and Applicable Law
Generally, "[i]n reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one. ' "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Smith (2005) 37 Cal.4th 733, 738-739.) "The applicable standard of review is the same as for adult criminal appeals." (In re Amanda A. (2015) 242 Cal.App.4th 537, 545.)
Section 266h, subdivision (a) provides that "[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, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping ...." "Thus, section 266h can be violated in either of two basic ways: (1) by deriving support from the earnings of another's act of prostitution or (2) by soliciting. In order to violate the statute by soliciting, there must be either the receipt of compensation for soliciting for a prostitute or the solicitation of compensation for soliciting for a prostitute." (People v. McNulty (1988) 202 Cal.App.3d 624, 630.)
Sufficient Evidence Supports the True Finding for Pimping by Soliciting
In light of the People's concession the evidence is insufficient to support a conviction for pimping under the deriving support factual scenario, we consider first whether the evidence submitted was sufficient to convict appellant for pimping under the soliciting factual scenario. On this point, appellant argues there was no evidence that appellant expected to be paid for placing the prostitution ad and that merely receiving gas money would not amount to pimping under the statute. We disagree and conclude the evidence is sufficient to support the trial court's finding.
In our independent review of the record on this point, we have located no evidence demonstrating appellant derived support from M.M.'s prostitution. While circumstantial evidence suggests M.M. had been engaged in multiple acts of prostitution, the evidence regarding financial payments to appellant exclusively suggests the possibility of future payments.
Contrary to appellant's arguments, the evidence in this case does not need to be cabined into either payment for placing an internet advertisement or payment to reimburse gas money. Rather, taken as a whole, the evidence is sufficient for a trier of fact to determine that a pimping relationship existed between appellant and M.M. in which appellant was engaged in soliciting prostitution work for M.M. and, in turn, expected to receive compensation for those activities. In this analysis, the trier of fact could find that appellant's placement of the advertisement, his text messages relating to M.M. completing her dates and collecting money, his role in bringing M.M. to the date in question, and his expectation of reimbursement for gas expenses, are sufficient to conclude appellant solicited compensation in exchange for soliciting a prostitute.
A holistic view of the evidence also disposes of appellant's argument the juvenile court lacked jurisdiction to resolve the petition, because at least some portion of the acts supporting the charge occurred in Tulare County.
Appellant contends the trial court could not convict appellant of pimping on a soliciting basis because the petition alleged only pimping based on a deriving support claim. Appellant is correct that " '[Due] process requires that a minor, like an adult, have adequate notice of the charge so that he may intelligently prepare his defense.' " (In re Robert G. (1982) 31 Cal.3d 437, 442.) However, we need not reach the merits of appellant's argument in this instance. "[A]n objection to lack of notice of the charges must be raised in the trial court and cannot be raised for the first time on appeal." (People v. Torres (2011) 198 Cal.App.4th 1131, 1140.) In this instance, the trial court expressly disclosed its intent to rely upon the soliciting basis for appellant's pimping conviction. Appellant's counsel failed to object and, thus, forfeited this issue on direct appeal. Appellant's Collecting or Receiving Proceeds Conviction
Appellant has not claimed ineffective assistance of counsel in this appeal.
We reject appellant's argument he had no meaningful opportunity to object. Counsel provided the court with the book containing the jury instructions relied on by the court and was directly apprised by the court, on the record, that the conviction would be found on both a support and a solicitation basis, through reference to those same instructions. --------
Appellant contends the trial court's true finding on count two, collecting or receiving proceeds earned from prostitution, must also be reversed due to a lack of evidence appellant received any proceeds from prostitution. The People directly concede the record contains no evidence "appellant actually received any proceeds from any of M.M.'s acts of prostitution." The People argue, however, that this court should modify appellant's conviction to an attempt, citing People v. Rojas (1961) 55 Cal.2d 252, 260 and People v. Post (2001) 94 Cal.App.4th 467, 480-483 (Post). Appellant did not submit argument in reply on this request, but noted in his opening brief that the evidence submitted in this case, "at most, proved only an attempt as to count [two]."
We do not agree with the People that reduction to an attempt to collect or receive proceeds from prostitution is proper. As noted in Post, we have statutory authority under section 1260 "to reduce a judgment of a completed crime to a lesser-included attempted offense." (Post, supra, 94 Cal.App.4th at p. 483.) Section 653.23, subdivision (a)(2) is a general intent offense which makes it a crime to "[c]ollect or receive all or part of the proceeds earned from an act or acts of prostitution committed by another person in violation of subdivision (b) of Section 647." When it comes to general intent crimes, the law generally concludes an attempt to commit the general intent offense is not a lesser included offense. (See People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248 ["If the attempt requires a heightened mental state, as is the case with attempts of many general intent crimes, the attempt requires proof of an additional element and is therefore not a lesser included offense."].) Because the attempt in this case was not a necessarily included offense of the charged crime, we lack statutory authority to modify the conviction. (People v. Bailey (2012) 54 Cal.4th 740, 754.) Therefore, we reverse rather than modify the conviction on count two.
DISPOSITION
We affirm the order with respect to count one and reverse with respect to count two. The matter is remanded for further proceedings consistent with this opinion.