Opinion
B303415
07-31-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBIN DEON MURPHY, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA472680) APPEAL from an order of the Superior Court of Los Angeles County, Ray G. Jurado, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Robin Deon Murphy of (1) human trafficking to commit pimping or pandering (Pen. Code, § 236.1, subd. (b)); (2) inflicting corporal injury on a cohabitant or girlfriend (§ 273.5, subd. (a)); (3) pimping (§ 266h, subd. (a)); (4) attempting to dissuade a witness from attending and testifying at trial (§ 136.1, subd. (a)(2)); and (5) attempting to dissuade a victim and witness from assisting in the prosecution of a criminal complaint or information (§ 136.1, subd. (b)(2)). The court denied defendant's request to stay the sentences on two counts pursuant to section 654 and sentenced him to 21 years 8 months in prison.
Unless otherwise specified, subsequent statutory references are to the Penal Code.
Defendant contends that the prosecutor committed prejudicial misconduct during her closing argument and that the court erred by failing to stay his sentence for pimping pursuant to section 654. We reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Nicole R. left her home in Maine when she was 16 years old and came to California. She began working as a commercial sex worker because, in her words, she was "homeless," "a drug addict," and "needed some food." She stopped working around the time she gave birth to her daughter in August 2017, but eventually returned to commercial sex work. In August 2018, she and defendant began living together in a house in Los Angeles.
On the evening of November 3, 2018, defendant and Nicole drove to a marijuana dispensary. Nicole entered the dispensary and, according to a security guard, appeared "distraught" and began crying "hysterically." Nicole told the security guard that someone was abusing her. Defendant then appeared, grabbed Nicole, and told her to "get back in the car." After two security guards separated defendant and Nicole, Nicole told the guards that defendant had been beating her and threatening to harm her daughter. One of the security guards called the police.
During two recorded interviews—one at the marijuana dispensary and one at Nicole's home later that evening—Nicole told police officers the following. Defendant is her pimp and is known by the nickname, King Sauce. She had met defendant four months earlier. Before they met, Nicole was a commercial sex worker. She tried to quit after her daughter was born, and initially believed that defendant "just wanted to date" her. But within a few days after they met, defendant began "putting [her] out" to work. At his direction, she got a tattoo on her hand with the name, "King Sauce."
During trial, Nicole testified that she had known defendant since about 2013, they began a "[g]irlfriend/boyfriend" relationship in 2017, and became engaged to be married in June 2018.
Defendant initially put Nicole out to work on San Fernando Boulevard in Sylmar, but later used only Internet advertisements on a "bunch of websites," including "Cityxguide, Craigslist, [and] Skipthegames."
Defendant physically beat Nicole "ever since" he began pimping her. The beatings included whipping her with an extension cord. Some beatings left scars on her body. Once, when Nicole had tried "to get away" from defendant, he sent her text messages threatening to send someone to rape and beat her and take her daughter away. Other times, defendant had threatened to kill Nicole, her daughter, and her parents.
Around midnight on the night of November 2, 2018, defendant whipped Nicole on her buttocks with an extension cord and punched her in the back because she was not making money.
At about 10:00 in the morning of November 3, 2018, Nicole "did a date" for defendant. That afternoon, defendant woke from a nap and became upset with Nicole for not making enough money that day, then beat her by kicking her in the ribs and punching her "really hard in [her] back."
That evening, they drove to the marijuana dispensary where defendant told Nicole to pick up some marijuana. When she went inside the dispensary, she "just got the courage" to approach a security guard for help.
After the officers' first interview with Nicole, a third officer took photographs showing red marks and bruises on Nicole's buttocks and discoloration on her left bicep.
After his arrest, defendant called Nicole from jail. He told Nicole he loved her, was "ready to get out and marry" her, and beseeched her, "Don't let me go out like this, mama, please. [¶] . . . [¶] . . . Please, man, on my mama, please. Man, I can't get out at sixty-something years old, man. Please, man." He told Nicole: "You need to call the detective, and then you need to call the [c]ounty [d]istrict [a]ttorney and tell them, you know, all that stuff, and you know, this, that, and the other. And if they say anything about that shit that was on your buns, just tell them we be having rough, you know[,] exercise or whatever." Later in the call, he advised Nicole that when she talked to others, she needed to "play it deep. . . . Like, '[h]ey, you know, it is what it is and he shouldn't even be punished for this, man. You know what I mean? . . . If anything, you know, he's being punished for . . . screaming at me. You know, I, we need to fix this. Me and him need to fix it, man. You know, he don't need to be away from me; I got a child on the way.' "
Defendant further told Nicole to "get out of [D]odge! Because they gonna try to force you to come to court. . . . Go to Orange County. Or go get your daughter, go out there and just, and just stay out the way until the shit over, please!" He later elaborated: "[T]hey gonna make you come to court. You know, as long as you stay out of L.A. County, they're not gonna come for you. Don't give them no addresses; don't give them no, no nothing, mama, on me, no anything! Don't answer the phone or any, don't, none of that shit. Just disappear! Like, you know what I mean? . . . [J]ust like go spend some time, you know, . . . go to Orange County or, man, you know what I mean, go back . . . across state to the east coast. And shit, I'll be, I should be out like within the next two court dates. They supposedly said you, you don't come; it's over." (Italics omitted.)
By the end of the call, Nicole told defendant that she loved him, and that she would "fix it" and "get you out, daddy."
In April 2019, Nicole was arrested for failing to appear as a witness in defendant's case and thereafter detained as a material witness. During trial, Nicole testified that she lied when she spoke to the police after the incident in the marijuana dispensary, she has never had a pimp, and she received the bruises on her body during a fight with a woman on the street.
During trial, the prosecution introduced evidence of numerous text messages and Internet postings retrieved from Nicole and cell phones found during a search of defendant's residence. The prosecution also introduced the testimony of a police officer with experience investigating pimping and prostitution crimes who explained the meaning of particular words, phrases, acronyms, and textspeak used in messages and Internet postings in the sex worker culture. Although Nicole testified that the text messages were between her and her drug dealer, not defendant, defendant does not dispute on appeal that such evidence supports the jury's implied findings that the messages were between Nicole and defendant and that defendant was Nicole's pimp.
The prosecution's expert testified that prostitutes may, either willingly or by force, have their pimp's nickname tattooed, or branded, on their body. Nicole's tattoo, "King Sauce," he stated, "could be considered a brand."
The officer also distinguished the pimping styles of a "Romeo/boyfriend" pimp and a "gorilla pimp." The Romeo/boyfriend pimp portrays himself to the sex worker "as caring and loving," and as being "marriage/boyfriend material" to get "the prostitute to get them to do what they want." The gorilla pimp "is more aggressive and hands on, more likely to inflict some type of mental or physical assault on the prostitute to get them to do what they want." Some pimps implement a mixture of both styles. Based on hypothetical facts mirroring evidence in this case, the expert opined that some actions of the hypothetical pimp were Romeo/boyfriend style pimping and other actions were gorilla style pimping.
Defendant did not present a defense case.
DISCUSSION
A. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct by using inflammatory language designed to unfairly appeal to the jurors' emotions or biases and by arguing facts not in evidence. We reject the contentions.
1. The challenged statements
Defendant points to the following statements to support his contention.
"I'm going to ask you to forgive me, because I'm going to do a demonstration for you. We're all adults here, and this as you've learned and seen throughout the course of this trial, this business of sex trafficking, and that's exactly what it is, especially in the eyes of the traffickers, is a business that is very graphic and offensive to the people that traffickers refer to as squares, people that are not participants in the commercial sex industry. So please forgive me.
"That peace sign that traffickers use to identify themselves as pimps, that wasn't random either.
"When you flip the bird, okay, I'm not doing this to be offensive, turn it sideways—"
At this point, defense counsel objected on the grounds, "[f]acts not in evidence" and "[i]mproper argument." The court overruled the objections.
"Essentially—and I won't even say essentially, as a matter of actual fact, [Nicole's] position was that of a sex slave.
"Now, maybe the defendant didn't get the memo, is not aware of the laws in the United States of America, or simply doesn't care, it doesn't matter which, slavery is abolished in this country. Slavery is abolished in this state. Slavery is abolished in this country. And it doesn't matter what kind of slavery a person is put into.
"For example, if you're a banker and somebody comes to your job and says, no, you can't work for bank X, you're going to work for the bank that I say you work for, and every dollar, dime, and nickel that you earn, working day after day you pay to me.
"That's what slavery is. Somebody else doing all the work, and somebody else profiting from the labors of another individual.
"In the sex trafficking world, the labor is that of sex, it's commercial sex. She's having sex, not because she just loves having sex. I mean, who do you think wants to have sex with random strangers? Just any John, Dick, or Harry on the blade. Any John, Dick, or Harry on the Internet.
The prosecution's expert explained that the words "track" and "blade" refer to a "well-known area where prostitutes and pimps go to conduct their business."
"You think that when Nicole . . . ran away from home at the age of 16, do you think that that was her life's goal? Or as a child, as a little girl, she said in her head, I can't wait to grow up, because I want to be a ho when I grow up. I want to have sex and provide sex services to random strangers, that's what I want to do for a living. What little girl, or what child, or what individual at all—" Defense counsel objected to this on grounds of "[i]mproper argument calling for sympathy, bias," which the court overruled. The prosecutor then completed her sentence, "—has that as a life goal for themselves? Nobody."
The prosecutor continued: "Now, Nicole . . . when she came to California at the age of 18 [sic], do you think that it was her purpose, goal, or aspiration to become—to come to California to become a sex worker? Do you think she wanted to be a prostitute? She wanted to be a ho? What makes her any different from any other person? [Nicole] found herself with no skills, no one to protect her. She was away from her family. She was very young, and she was vulnerable to those who would prey upon and manipulate the young mind of a teenaged runaway to encourage, induce, and persuade her to become a sex worker. That's all she saw for herself.
"And traffickers seize upon these vulnerabilities of these victims. They don't go to this sex worker's family, for example. The defendant didn't go to Maine and knock on [Nicole's] door and ask her parents, can she come to California and work for me as a ho. They don't do that. If a person has some means of protection, some family structure, some kind of normalcy in their everyday life, those persons are less vulnerable to falling into the commercial sex industry. The kids who are runaways, who are products of broken homes, who are in a group home, or something like that, who—even a juvenile delinquent, those are the persons who are at risk and vulnerable."
Defense counsel objected at this point on the grounds of facts not in evidence and improper argument. The court overruled the objections.
In discussing the crime of pandering, the prosecutor stated, "[p]andering is simply offering up this girl for commercial sex. How did he pander? You make her available. For example, driving a known prostitute to the track or the blade, that's an act of pandering." At this point, defense counsel argued that this misstated the law, to which the court responded by admonishing the jurors that, if the attorneys say something different from the court's instructions, they must follow the instructions.
Some time later in her argument, the prosecutor stated that "the reaction of the average citizen to a commercial sex worker" is to look down upon "a commercial sex worker, and say, oh, she's just a ho[ ]." "Even one's own family members, when they become aware of the fact that their daughter, their son, their niece, nephew, aunt, whatever it is, is a commercial sex worker, by and large they are looked down upon." The court overruled counsel's objection that this constituted facts not in evidence.
In addition to the foregoing excerpts of the prosecutor's argument, defendant includes in his opening brief additional excerpts, which he introduces with the statement that they are "similar and related comments without objection." We have reviewed and considered these additional excepts in our evaluation of the merits of defendant's claims, but do not include them in our factual statement in the interest of brevity.
2. Analysis
" 'A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.' [Citation.] 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.' [Citation.] 'When attacking the prosecutor's remarks to the jury, the defendant must show' that in the context of the whole argument and the instructions there was ' "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." ' " (People v. Rangel (2016) 62 Cal.4th 1192, 1219 (Rangel).) " '[W]e "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Dykes (2009) 46 Cal.4th 731, 772 (Dykes).)
Defendant argues that "the prosecutor here repeatedly imputed guilt by association" and improperly employed a "theme" that defendant "was guilty of all crimes of all human traffickers, both in the abstract and in the concrete." For this argument, defendant cites to 10 pages of the reporter's transcript, then asserts without further or more specific reference to the record that the prosecutor's argument had, as a "theme," that defendant "was guilty . . . for the crimes of those who came before him—guilty of the crimes of the person who 'turned out' the 16-year-old Nicole, guilty of the crimes of Nicole's first pimp, guilty of the crimes of those who trained Nicole to be appellant's 'experienced employee,' guilty of the crimes of the pimp who came after him, and indeed, moreover guilty for taking criminal advantage of the social crimes that create and exploit the vulnerabilities of Nicole, and all those like Nicole." Defendant also points to the prosecutor's reference to defendant having " 'the mindset of any other trafficker,' " which, he argues, implied that defendant "was as liable for all of Nicole's sexual exploitation."
The 10 pages of the transcript to which defendant cites for this argument include only one objection. Although defendant forfeited arguments concerning portions of the prosecutor's argument to which he did not object (see Dykes, supra, 46 Cal.4th at p. 770), we have considered the merits of his claims.
Defendant compares the prosecutor's conduct with the prosecutor's misconduct in People v. Arredondo (2018) 21 Cal.App.5th 493 (Arredondo). In that case, the prosecutor referred to defendants as "cockroaches" 11 times during his argument. (Id. at p. 502.) Several of the references were "couched in terms of the need to protect the community from the criminality of the 'cockroaches.' " (Id. at p. 503.) The Court of Appeal held that, although "a fleeting characterization of [the defendants] as cockroaches would not rise to the level of misconduct," the prosecutor's "use of the epithet . . . was relentless; it began in the very first words uttered by prosecutor to the jury and continued throughout both his opening argument and rebuttal. The vice . . . is that the epithet became, by virtue of both its repetition and its power, the major theme of the prosecutor's argument." (Id. at p. 504.)
Here, we have reviewed the pages cited by the defendant as well as the prosecutor's argument as a whole, and find little to support defendant's argument of an improper "theme." The prosecutor's references to Nicole having been previously "turned out" and an "experienced employee" appear during the prosecutor's discussion of how it was easier for the defendant, "being a sex trafficker, . . . to operate if he has an experienced employee. And that's what [Nicole] was. She knew the game, she had been turned out already, and she had previously worked as a commercial sex worker for some five years." The reference to defendant having "the mindset of any other trafficker," appears only once. There is nothing in the prosecutor's argument comparable to the "relentless" use of an offensive epithet as in Arredondo, supra, 21 Cal.App.5th at p. 504. Nor does the record support defendant's suggestion that the prosecutor urged the jury to find defendant guilty of human trafficking based on "all crimes of all human traffickers."
Defendant further argues that the prosecutor improperly compared defendant's conduct to engaging in slavery. Indeed, the prosecutor referred to Nicole as being in the "position . . . of a sex slave," and stated that Nicole "doesn't have to agree to be somebody's slave just because she was a slave in the past," that "she made no bones about what she was, what she did in terms of work, and who her employer was, essentially who her slave master was, who her king was," and, "even if you want to accept the defense argument that [Nicole] was a volunteer, it's still a violation of the law, because slavery in this country, state, and county is outlawed. No person deserves to be sexually exploited." The prosecutor further argued that, "maybe the defendant didn't get the memo, is not aware of the laws in the United States of America, or simply doesn't care, it doesn't matter which, slavery is abolished in this country. Slavery is abolished in this state. Slavery is abolished in this country. And it doesn't matter what kind of slavery a person is put into."
Initially, we observe that defendant did not object to any of the prosecutor's references to slavery. His argument that the statements constituted misconduct is therefore forfeited. But even on the merits, the argument fails.
Defendant cites to Plessy v. Ferguson (1896) 163 U.S. 537, 542, overruled in Brown v. Board of Education of Topeka (1954) 347 U.S. 483, 495, for a definition of slavery within the meaning of the Thirteenth Amendment: "Slavery implies involuntary servitude[ ]—a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services." (Plessy v. Ferguson, supra, 163 U.S. at p. 542.) The crime of human trafficking as alleged against defendant, by contrast, does not require proof of a defendant's "ownership" of another "as a chattel" or, necessarily, the control of the other's labor and services. Thus, human trafficking, as heinous as it is, does not necessarily encompass slavery as defined in Plessy v. Ferguson. If the prosecutor's references to slavery were meant to convey the meaning given in Plessy v. Ferguson and the jury understood them in that sense, defendant's argument that the prosecutor was urging the jury to find him guilty because he engaged in slavery has some persuasive force.
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (U.S. Const., 13th Amend., § 1.)
When, however, we view the comments, as we must, "in the context of the whole argument and the instructions" given to the jury, there is not " ' "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." ' " (Rangel, supra, 62 Cal.4th at p. 1219.) Initially, we observe that modern definitions of slavery include mere "submissiveness to a dominating influence" and "subservience" (Merrim-Webster Unabridged Dict. (2020) <https://unabridged.merriam-webster.com/unabridged/slavery.html> [as of July 30, 2020], capitalization omitted), and the 2012 initiative that amended section 236.1 expressly equated human trafficking with "modern slavery, manifested through the exploitation of another's vulnerabilities." (Ballot Pamp., Gen. Elec. (Nov. 6, 2012) text of Prop. 35, p. 101, § 2(2); see In re Aarica S. (2014) 223 Cal.App.4th 1480, 1486.) In light of these modern usages of the word "slavery," we cannot assume that the jury understood it in the pre-Civil War sense. To the extent the jury did understand the prosecutor to mean slavery as defined in that sense, they likely viewed the use as an advocate's hyperbole. (See, e.g., People v. Poggi (1988) 45 Cal.3d 306, 339-340 [counsel's assertion that the defendant will face "another trial" and "be sentenced to eternal damnation and hell" was nonprejudicial hyperbole].) Moreover, the jury was instructed on the elements of human trafficking, which do not include the circumstances that distinguish that crime from 19th Century antebellum slavery, and presumably followed the instructions. For all these reasons, we conclude that the prosecutor's references in this case to slavery do not constitute prejudicial misconduct.
Next, defendant argues that the prosecutor improperly "narrativize[d] Nicole's life, supplying real and imagined details particularly designed to evoke sympathy for the victim beyond the facts of the crime." He refers to the prosecutor's rhetorical question whether, when Nicole "ran away from home at the age of 16," did she have as "her life's goal . . . to be a ho" "and provide sex services to random strangers. . . . What little girl, or what child, or what individual at all [¶] . . . [¶] . . . has that as a life goal for themselves? Nobody." The prosecutor used these statements and others about Nicole to provide context for defendant's relationship with Nicole as her pimp and panderer: Nicole's vulnerability allowed defendant to "prey upon and manipulate the young mind of a teenaged runaway to encourage, induce, and persuade her to become a sex worker." The remarks are fair comments on the evidence, and do not constitute misconduct. To the extent they were intended to evoke the jury's sympathy, the comments were brief and it is not reasonably likely the jury applied them in an improper or erroneous manner.
The prosecutor's statements are not comparable or analogous to those in People v. Vance (2010) 188 Cal.App.4th 1182, upon which defendant relies. In that case, the prosecutor argued: " 'In order for you as jurors to do your job, you have to walk in [the murder victim's] shoes. You have to literally relive in your mind's eye and in your feelings what [the victim] experienced the night he was murdered. You have to do that. You have to do that in order to get a sense of what he went through. Can you imagine thinking about just hanging out with your friends, people who you think are your friends, driving them around in your car from place to place. . . . Being told to turn into a dark driveway, no cars in sight. Being told to turn off your car engine, the lights, the music. Getting out of your car with the two people you thought up to that point were your friends, the one you just had met that night and the one you have been with before. And then suddenly, without warning, being jumped, being put into a choke hold, taken down to the ground and choked out. You're trying to gasp for air but the pressure from the choke hold doesn't let up. You don't know what's going on and at first you think it's a nightmare. [¶] . . . There's nothing more terrifying than a feeling of not being able to breathe. You're totally trapped. Trapped in darkness without the ability to breathe." (Id. at p. 1194.) The Court of Appeal held that these and other remarks were improper "Golden Rule" arguments, which ask the jurors to put themselves in the victim's position and imagine what the victim experienced. (Id. at p. 1188.) The statements in Vance are patently more graphic, detailed, extensive, and evocative of sympathy than those in the instant case. Vance is thus distinguishable.
Under separate heading, defendant argues that the prosecutor used facts not in evidence, thereby making " 'the prosecutor [her] own witness—offering unsworn testimony not subject to cross-examination.' " (Quoting People v. Hill (1998) 17 Cal.4th 800, 828.) Defendant further argues under this same heading that the prosecutor engaged in a form of "vouching" by making statements that suggest " 'that information not presented to the jury supports the witness's testimony.' " (People v. Rivera (2019) 7 Cal.5th 306, 336.) Vouching, in this sense, may be used either to bolster testimony that support's the People's case or discredit defense witnesses. (People v. Perez (1962) 58 Cal.2d 229, 246.)
These arguments are made without any citations to the record, contrary to rule 8.204(a)(1)(C) of the California Rules of Court. (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29 ["It is axiomatic that an appellant must support all statements of fact in his briefs with citations to the record."].) We nevertheless address the merits of the arguments.
In the absence of references to the record for this argument, we assume that defendant is referring to the four instances in which defendant objected to the prosecutor's argument on the ground that the prosecutor argued facts not in evidence. The court sustained one objection and instructed the jury to disregard the argument. Defendant describes this instance as a "relatively minor transgression," and does not contend that the court's admonition failed to cure the prosecutor's error.
Of the other three objections, which were overruled, one is to the prosecutor's statements regarding the vulnerability of runaways and others whom human traffickers may seize upon to become sex workers. We discussed these statements above (see ante, pp. 11-12) and conclude there was no prejudicial error in their use.
A third objection based on facts not in evidence is to the prosecutor's apparent display of a hand sign, similar to the two-finger peace sign, purportedly used in the commercial sex business to refer to a pimp. Two photographs purporting to show Nicole and defendant displaying the hand sign were used in trial. Although the record does not include any testimony explaining the meaning of the symbol, the prosecutor's reference to the hand sign is brief and insignificant in light of the entire argument; it does not constitute prejudicial misconduct. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 95; People v. Ashmus (1991) 54 Cal.3d 932, 990.)
The fourth objection was made to the prosecutor's statement that a commercial sex worker's own family members will look down upon them. The statement is based on common knowledge or drawn from common experience and, therefore, does not constitute misconduct. (See People v. Young (2005) 34 Cal.4th 1149, 1197.) The other statements defendant refers to in support of his argument that counsel relied on facts not in evidence and constitute vouching, were unobjected to and, to the extent we can identify them in the record, appear to be either insignificant or permissible as based on common knowledge or experience.
For all the foregoing reasons, defendant has failed to establish that the prosecutor committed prejudicial misconduct in her closing argument.
B. Section 654
Defendant contends that the court erred in failing to apply section 654 to stay the punishment on the conviction under count 3 for pimping in light of the conviction on count 1 for human trafficking. We reject the contention.
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. [Citations.] We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives. [Citations.]" (People v. Corpening (2016) 2 Cal.5th 307, 311.)
A court's express or implied factual findings with respect to section 654 are reviewed for substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Cleveland (2001) 87 Cal.App.4th 263, 271.) In conducting that review, we presume every fact in support of the ruling that the court could reasonably deduce from the evidence. (People v. Atencio (2012) 208 Cal.App.4th 1239, 1242.)
Here, defendant was convicted under count 1 of human trafficking in violation of section 236.1, subdivision (b), and under count 3 of pimping in violation of section 266h, subdivision (a). Section 236.1, subdivision (b), as alleged in this case, is violated by depriving or violating "the personal liberty of another with the intent to effect or maintain a violation" of pimping under section 266h or pandering under section 266i. A deprivation 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).)
One commits pandering for purposes of section 266i when, among other means, he or she "[p]rocures another person for the purpose of prostitution," or "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute." (§ 266i, subds. (a)(1) & (2).) Procuring, in this context, means " 'assisting, inducing, persuading or encouraging' a person to engage in prostitution." (People v. Campbell (2020) 51 Cal.App.5th 463, 485.) The phrase, " 'to become a prostitute[,]' includes both recruiting someone to enter the prostitution trade for the first time and encouraging an existing prostitute . . . to work for him or someone else under some type of new business relationship." (People v. Zambia (2011) 51 Cal.4th 965, 973.)
One commits pimping for purposes of section 266h when he knows "another person is a prostitute" and "lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution." (§ 266h, subdivision (a).)
Here, there is substantial evidence to support the implied finding that the convictions of human trafficking and pimping were based upon more than one physical act. Nicole told police officers that defendant was her pimp who, four months earlier, "put [her] out on the street." Defendant had been beating and threatening her "ever since." In particular, one week before seeking the security guard's help at the marijuana dispensary, Nicole had "left" him and tried "to get away." She returned to defendant after he sent her messages threatening that he would send someone to rape and beat her and take her daughter away. Nicole took the threats seriously and said she was "really scared" and "scared for [her] life." The night before they went to the dispensary, defendant had whipped her with an extension cord because she was not making money. And earlier that day defendant had kicked her in the ribs and punched her because she was not making enough money.
The multiple incidents of threats and violence in the context of defendant's ongoing pimping relationship with Nicole constitute discrete acts of depriving or violating Nicole's "personal liberty" within the meaning of section 236.1. In addition, the crime of pimping, apart from the threats and violence defendant used to commit that crime, is established by Nicole's statements that defendant was her pimp and that he had put her out to work on the street in Sylmar and later advertised her commercial sex work on websites. There was, therefore, more than one act underlying the separate counts of pimping and human trafficking.
Even when two crimes are based upon different acts, section 654 requires a stay of the punishment of one crime when both crimes are committed as part of a course of conduct with a single intent and objective. (People v. Corpening, supra, 2 Cal.5th at p. 311.) Thus, "if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored 'multiple criminal objectives,' which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
A defendant may harbor multiple criminal objectives for purposes of applying section 654 even if the intent and objective of each crime is the same or similar. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Thus, one who commits multiple sex crimes may have the same objective—sexual gratification—each time he commits the crime, but can be punished separately for each crime. (See People v. Perez (1979) 23 Cal.3d 545, 553-554; People v. Harrison, supra, 48 Cal.3d at pp. 336-337.) Likewise, one is not entitled to a stay under section 654 by claiming that a series of burglaries was committed with the single intent and objective of acquiring wealth. (People v. Perez, supra, 23 Cal.3d at p. 552.)
Here, even if defendant had a consistent intent and objective in threatening and beating Nicole—to maintain his control over Nicole through force and fear—his separate instances of abusive conduct were independent of and not merely incidental to others. The court, therefore, did not err when it rejected defendant's request for a stay under section 654.
Defendant relies on People v. Dearborne (2019) 34 Cal.App.5th 250. In that case, the defendant was convicted of human trafficking, kidnapping to commit a sex offense, rape, forcible oral copulation, robbery, pimping, and pandering—all of which the defendant committed against one victim during a single night. (Id. at pp. 253-256.) On appeal the defendant argued that the trial court should have stayed the sentence on the pimping conviction under section 654 based on the execution of the sentence for the human trafficking conviction. The Court of Appeal agreed, explaining that "[t]here was only a single pimping activity relevant to [the human trafficking and pimping] counts," and the "human trafficking charge . . . necessarily was part of the same criminal 'intent and objective' as the pimping charge." (People v. Dearborne, supra, at pp. 263-264.)
Here, by contrast, defendant acted as Nicole's pimp for about four months, during which time he committed multiple discrete acts of violence and threats against Nicole, each with separate, albeit similar, objectives to maintain his crime of pimping. Dearborne, therefore, is factually distinguishable and we reject its application here.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------