Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC510499
ELIA, J.Barbara Nguyen appeals from a judgment of conviction of procuring a minor under the age of 16 for prostitution (Pen. Code, § 266i, subd. (b)(2)) (count one) and causing, inducing, and persuading a child under the age of 16 to engage in a lewd act (§ 266j) (count two) following a court trial. The trial court sentenced appellant to a total term of five years, consisting of a lower term of three years on count one and a consecutive one-third of the midterm on count two. The court imposed a restitution fine of $2,000 and a commensurate parole revocation fine of $2,000, suspended unless parole is revoked. (§§ 1202.4, subd. (b); 1202.45.)
All further references are to the Penal Code. Section 266i provides in full: "(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: [¶] (1) Procures another person for the purpose of prostitution. [¶] (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute. [¶] (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. [¶] (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. [¶] (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. [¶] (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. [¶] (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: [¶] (1) If the other person is a minor over the age of 16 years, the offense is punishable by imprisonment in the state prison for three, four, or six years. [¶] (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years."
Section 266j provides: "Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person is guilty of a felony . . . ."
On appeal, defendant raises a section 654 challenge. She further contends that, if the sentence on count two should have been stayed pursuant to section 654, the restitution fine must be reduced. Defendant also presents an effective assistance of counsel argument in the event we conclude the restitution fine issue was waived by defense counsel's failure to raise it below.
We find no violation of section 654 and affirm.
A. Evidence
The evidence, properly viewed (see People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408), shows the following facts.
At time of trial in February 2007, Van was 16 years of age and she had arrived in the United States from Vietnam a year and a half before. In October 2005, when she was 14 years old, Van was looking for massage jobs in two papers, one of which was the local Vietnamese newspaper Thang Mo.
On Saturday October 8, 2005 Van used a friend's phone to make a telephone call regarding a massage job advertised in the paper. Van was looking for a job because she wanted to get away from her family, meet new people, and get money to go back to Vietnam. She first spoke to a man, whom she later referred to as defendant's brother. After he asked her age and then commented that she was too young for the job, he gave the telephone to defendant, a woman whom Van called "Auntie" and whom was identified in court as defendant. The woman was not a relative and "Auntie" is a term of respect in the Vietnamese culture. They arranged to meet on Sunday at a church.
On Sunday October 9, 2005, Van was with Phuong, who had arrived in the United States in August 2005 and who was 18 years old at the time of trial in February 2007. Van and Phuong had met in high school. Van was looking at an ad for a massage job in the Thang Mo. At the time, Phuong did not know enough English to understand the meaning of the word "massage." Van told Phuong the number to call and Phuong initially spoke with a man and then handed the phone off to Van, who talked to someone.
Van made arrangements to meet "Auntie" that day at a new place, a Vietnamese restaurant. Van and Phuong met defendant outside the restaurant and they both got into defendant's car.
After they were in the car, defendant explained that the ad for the massage job was "just for formalities" and the job actually involved "doing husband and wife business," that is "get[ting] in the bed and sleep[ing] together." Defendant told them that they were going to a hair salon to pick up a young woman who worked for her. Defendant told them that the young woman's job involved "living with a man" like "husband and wife" and she enjoyed it.
Phuong told defendant that Van was only age 15, which was her age calculated by Vietnamese tradition of considering a newborn one year old at birth. Van was actually 14 years old as age is calculated in the United States.
At the hair salon, a young woman, who appeared over 18 years of age, entered the car. The young woman talked about the work she did for defendant, which involved the relationship between a man and a woman. The young woman said that the job was "very easy" and "[y]ou just do it and then you will get used to it." Defendant told them that it was "an easy job" and "the only thing [that] needed to be done [was] . . . to sleep with the man at night." Defendant encouraged them to "[j]ust go ahead and do it" and suggested they could earn a lot of money and it would be easy to go to Vietnam.
In the car, defendant indicated that she would pay $100. Van understood that engaging in husband and wife activities meant sexual intercourse and that defendant would pay her $100 to have sexual intercourse with each customer. Phuong understood that the job would require her to have sex with men.
Phuong did not want the job and defendant dropped off Phuong and Van. The two returned to Phuong's home.
After a while, Van used Phuong's cell phone to call defendant and arranged for defendant to pick her up. Van called because she wanted money, she was bored and did not have friends, and she did not want to live at home because "it was too strict" there. When defendant came, Van got into defendant's car and Phuong went with Van "to keep an eye on her."
Defendant drove Van and Phuong to her mobile home. The young woman from the hair salon was there. She had changed into "sexier attire" and was getting ready to go to work. The young woman said things like, "this is a good job . . . ." At some point, Van saw the young woman go into a room with a man and then, later on, Van saw her come out.
Defendant told them the money was easy. Phuong asked defendant about pregnancy and defendant showed them contraceptives and condoms and said not to worry and there was no way to get pregnant. Defendant instructed that, if police ever asked anything, to say, "I was doing it just to satisfy my own biological needs." They never discussed massage.
Defendant told Van that she would pay $200. When Phuong realized the job was not a good job, she wanted to drag her friend Van out and tried to intervene. Defendant reprimanded Phuong and told her that she "should not be telling this to Van's mom because this [was] her own freedom" or disclose it to anybody else, "not even to the police." Phuong left and walked home but Van stayed.
Defendant took Van to a three bedroom home near the flea market; defendant was going to let Van live there. At some point Sunday, Van telephoned Phuong, whose understanding was that Van was at home.
Later that Sunday, at the house near the flea market, defendant told her to go to a particular bedroom and wait for a customer. Defendant then came into the bedroom and told Van that someone, a mechanic, was going to visit her. A Vietnamese man in his 30's came in a short time later. The man rubbed Van's back and she pushed his hand away. He touched her breast and she again pushed his hand away. The man telephoned defendant on his cell phone and then gave Van the phone. Defendant told Van to "go ahead and please him."
After Van finished talking to defendant, the man sat down next to her and pulled up Van's shirt. She pulled her shirt down. The man telephoned defendant again; defendant returned to the bedroom and the man left. Defendant told Van "just to go ahead and do it," it would "only hurt the first time," and it was "not going to hurt forever." Van understood that defendant was talking about having sex for the first time.
The man came back into the room and pulled down Van's pants. She thought, "Since I lived in her house, I just have to listen to her . . . ." So Van "just let go" and the man put his penis into her vagina. It was the first time she had ever had sex. "[I]t hurt so much" that she "was screaming." Afterward, defendant then took Van to the flea market to buy clothes.
At some point, the man whom Van assumed to be defendant's husband gave her a sex video. On Monday, defendant provided her with sexually explicit x-rated movies and a television. Defendant explained that she was giving the movies to Van to help Van get "used to it" and so Van would not be scared "next time." Defendant instructed Van to watch the movies. Van began watching by herself. They showed adult men and women having sexual intercourse.
Monday afternoon while Van was watching the movies, a Vietnamese man entered her room and he took off her clothes but she "didn't want it." He gave her $20 and left. At some point, defendant told Van that the man was a grocery store owner. The man returned Monday night and Van saw him talking with the man she believed to be defendant's husband. Van locked her door; the grocery store owner knocked on her door. He eventually entered Van's bedroom and took off her clothes. They had sexual intercourse; she was screaming because it hurt, but not as much as before. The man gave her another $20 and left.
During the time she stayed at the home near the flea market, Van saw defendant at the house but not often. Defendant brought her food. Defendant slept at that house one time, on Tuesday night. Van was told by defendant to "stay inside the house, because if people [saw] them, it will cause trouble." At some point, the man whom Van thought was defendant's husband tried to grab at her and tried to touch her when defendant was not around. Van threatened to tell defendant because she was afraid of him and did not want him to touch her. On Thursday morning, defendant gave Van $100 and told her to use it. At some point before Van returned home, defendant told her, if the police ask, to "say that I was just doing it to satisfy my own sexual need."
Sometime on Thursday October 13, 2005, two officers with the San Jose Police Department, Officer Hoa Tran and Sergeant Luu Pham, talked with Van's mother, who had reported her daughter missing. The mother had learned from her daughter's friend Phuong that they had both left together in response to an advertisement for a massage job and Phuong had returned home but her daughter had not. The mother provided the officers with a page of the Thang Mo containing an ad. The ad, translated from Vietnamese, stated that two females were needed for massage work and specified ages "18 to 15" and listed two telephone numbers. The ad stated that no experience was needed and owner would provide a vehicle if applicant lived far away and food and lodging. It was stipulated at trial that there had been a misprint regarding age and the ad should have read "18 to 35."
The officers contacted Phuong at her high school. Phuong told them where she had last seen Van; she accompanied them in their vehicle and directed them to a mobile home located at 411 Lewis Road, space number 370.
Officer Tran and Sergeant Pham entered the home. They spoke with defendant at the dining table in the kitchen; two males were also present. They explained in Vietnamese that they were looking for a missing 14-year-old girl. Defendant said she was the owner of the home. Defendant denied any connection to or knowledge of Van and the men denied seeing a young female at the premises.
The police proceeded to clear the house and, in one of the bedrooms, found a completely nude woman and also found a nude male hiding under the bed. Van was not found.
The bedroom in which the nude woman and nude man had been found did not contain any massage oils or a massage table. A used condom was found on the floor. The man had come to that location after calling the telephone number in a massage ad in the Vietnamese Thang Mo newspaper. Defendant had let him in. Defendant had told him it would be $40 and directed him to a room, where he took off his clothes and lay on the bed. The woman discovered in the bedroom said that she had called defendant in response to a job advertised in a Vietnamese paper. She said that the man and she were not boyfriend and girlfriend.
Defendant stated that she rented out the room to strangers in exchange for a "commission." She denied that her home was a house of prostitution. An in-field show up was conducted and Phuong immediately picked out defendant and identified her as the woman that Van and she had previously met at the restaurant.
Later Thursday, Van was told by the men whom she believed to defendant's husband and brother to go home because the police had arrived at defendant's house. The men drove Van to her friend Phuong's house. Van, who had spent four nights and five days at the house near the flea market, went home sometime Thursday night.
The following day, October 14, 2005, Officer Tran received a telephone call from Van's mother, who said that her daughter had returned home the previous night. Van was interviewed at her high school.
The manager of a mobile home community on Lewis Road identified defendant as a tenant in that mobile home park. He had noticed a lot of rules violations at her residence, including parking in the fire lane, heavy foot traffic at all times of the day and night, and excessive use of guest parking. The park rules prohibited running a business from the mobile homes.
On March 14, 2006, Detective Daniel Anderson, an officer assigned to the San Jose Police Department's vice unit, helped execute a search warrant at the mobile home located at 411 Lewis Road, space number 370. He was responsible for taking photos. He explained, with respect to a photograph of the residence, that it was significant that the area was residential and there were no signs indicating that the place was a massage business. The rooms had beds with only a sheet on them and the windows had dark coverings. Some of the photographs showed Crown brand condoms and that brand is sold in boxes of 1000 and is commonly used in brothels.
In a bedroom closet, the police found a receipt from Thang Mo containing the same telephone number that was used in the Thang Mo ad that police had earlier obtained and to which Van had responded. That same mobile phone number was listed on defendant's T-mobile bill. Bills, statements, and paperwork that had defendant's name on them were found. A photograph showed pornography found in the form of videos, DVDs, and magazines, which was significant because it was "not uncommon" to find pornography in brothels because customers sometimes request it.
Detective Anderson's opinion based upon his training and experience and the evidence was that defendant's mobile home on Lewis Road was "operating as a clandestine prostitution brothel." He found it significant that the ad placed in Thang Mo did not require experience and offered food, housing and transportation. Other significant circumstances included that defendant tried to recruit Van and Phuong, talked about a husband and wife relationship, showed Van and Phuong a condom, talked about pleasing the customer, told Van that she could make $100 to $200, and provided Van with x-rated movies, which the detective characterized as a "training tool," to watch so she would know what to expect. He concluded that defendant was the "onsite manager" in that she directed customers to Van, told Van to lie to police about her sexual activity if questioned, told Van not to leave the house, and paid her $100 at the end. It was his opinion that the man discovered hiding under the bed was a customer of the brothel.
B. Violation of Section 654
Defendant maintains that the trial court violated section 654's multiple punishment prohibition by imposing a sentence on both convictions because she had a single objective of "causing, inducing, persuading, or encouraging" Van to engage in prostitution. She argues that "[t]he mere fact that a given course of criminal conduct might extend over several days has no bearing on the issue of whether the conduct was in furtherance of a single objective." Defendant contends that the objective of encouraging Van to become a prostitute is indistinguishable from the objective of persuading Van to commit lewd acts for money.
Respondent's position is that both crimes may be punished because they involve "separate conduct on separate days and involved distinct elements" and, furthermore, punishment for both offenses was consistent with defendant's individual culpability and the moral repugnancy of the offenses against a vulnerable minor. Respondent asserts that defendant's course of conduct resulting in Van coming to live at the "mobile home brothel" as an "inmate" constitutes the violation of section 266i and defendant's course of conduct thereafter in making Van available to two male customers for lewd and lascivious acts constituted the violation of section 266j. Respondent asserts that the "consecutive sentences [on counts one and two] were proportionate to appellant's sex crimes and her individual culpability" and were not barred by section 654.
Section 654, subdivision (a), states: "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." "Section 654 bars multiple punishment for separate offenses arising out of a single occurrence where all of the offenses were incident to one objective. (Neal v. State of California (1960) 55 Cal.2d 11, 19 . . . .)" (People v. Lewis (2008) 43 Cal.4th 415, 519.)
"[Section 654's] protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' (People v. Beamon (1973) 8 Cal.3d 625, 639 . . . .)" (People v. Harrison (1989) 48 Cal.3d 321, 335.) However, "a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]" (People v. Beamon, supra, 8 Cal.3d 625, 639, fn. 11; see Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1248 [permissible to punish four contempts occurring on four days on which lewd acts were permitted to occur in theater in violation of injunction because contempts were "divisible temporally"].)
" 'Where the question is whether a transaction is divisible or indivisible, each case must be resolved on its facts.' (People v. Brown, 49 Cal.2d 577, 591 . . . .)" (People v. Camodeca (1959) 52 Cal.2d 142, 148.) " 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]' [Citation.]" (People v. Coleman, supra, 48 Cal.3d at p. 162.) "Although the question of whether defendant harbored a 'single intent' within the meaning of section 654 is generally a factual one, the applicability of the statute to conceded facts is a question of law. (Perez, supra, 23 Cal.3d at p. 552, fn. 5.)" (People v. Harrison, supra, 48 Cal.3d at p. 335.)
In support of punishment of both convictions, the People cite People v. Perez (1979) 23 Cal.3d 545, which is the "touchstone" in determining how to apply general section 654 principles to sex offenses. (People v. Harrison, supra, 48 Cal.3d at p. 336.) In Perez, supra, 23 Cal.3d 545, the defendant was convicted of multiple offenses, including forcible rape, forcible sodomy, and two counts of forcible oral copulation that had been committed during a continuous attack of 45 minutes to an hour. (Id. at pp. 548-549.) The People contended that the trial court erred in staying execution of sentence on the oral copulation and sodomy convictions pursuant to section 654. (Ibid.) The defendant "assert[ed] that the trial court properly found that his sole intent and objective was to obtain sexual gratification, and that since the evidence supports this finding, the trial court's ruling must be upheld." (Id. at p. 552, fn. omitted.)
Although the pandering and child procurement statutes (§§ 266i, subd. (b), 266j) do not criminalize particular sex acts, violations of those laws may be viewed as sexual offenses. (See §§ 290 [persons required to register under Sex Offender Registration Act includes persons convicted of sections 266i, subd. (b), and 266j]; 290.005, subds. (c) and (d)(5) [sex offenders required to register where convicted of pandering offense in out-of-state court and required to register in the state of conviction if the offense contained all of the elements of California pandering offense under section 266i]; 1203.065, subd. (a) [no probation or suspension of sentence for specified sex offenses, including sections 266i and 266j]; see also People v. Bautista (2005) 129 Cal.App.4th 1431, 1437 [rejecting argument that section 266j was not a sex crime within the meaning of section 288.5].)
In deciding the section 654 issue, the Supreme Court "focus[ed] on the question whether defendant should be deemed to have entertained single or multiple criminal objectives." (Id. at p. 552.) It recognized that a defendant "may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct" "if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other . . . . [Citations.]" (Id. at p. 551.)
The court found an intent and objective of "sexual gratification" "much too broad and amorphous to determine the applicability of section 654." (Id. at p. 552) It stated: "Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute's purpose to insure that a defendant's punishment will be commensurate with his culpability. (See Neal v. State of California, supra, 55 Cal.2d at p. 20 . . . .) It would reward the defendant who has the greater criminal ambition with a lesser punishment. [Citation.]" (Ibid.) It "decline[d] to extend the single intent and objective test of section 654 beyond its purpose to preclude punishment for each such act" because "[a] defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act." (Id. at p. 553.) The court concluded that, in the case before it, section 654 did not "preclude punishment for each of the sex offenses committed by defendant" because "[n]one of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other." (Id. at pp. 553-554.)
In this case, defendant was charged in count one with violating section 266i, the pandering statute, by procuring a 14-year-old female for purposes of prostitution by promises, threats, violence, and device or scheme, causing, inducing, persuading and encouraging her to become a prostitute and found guilty. Defendant was charged in count two with violating section 266j, the child procurement statute that like section 266i has different statutory forms, by causing, inducing or persuading a child under the age of 16 to engage in a lewd and lascivious act with another person and found guilty. The facts showed defendant engaged in conduct over the course of a Sunday culminating in Van engaging in an act of sexual intercourse as a prostitute, although she initially balked and had to be coaxed through that first encounter. The following day, before a second man arrived at Van's room, defendant provided sexually explicit x-rated movies to Van and encouraged her to watch them to overcome her fear and resistance to engage in such acts "next time."
A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money or other compensation. (See People v. Freeman (1988) 46 Cal.3d 419, 424 [meaning of "prostitution" in section 266i derives from section 647, subdivision (b)]; § 647, subd. (b)); see also CALCRIM No. 1151 (2008 ed.) p. 959); cf. § 647, subd. (b) [disorderly conduct statute defines "prostitution" to include "any lewd act between persons for money or other consideration"].) A lewd act must involve bodily contact between the prostitute and the customer to constitute prostitution within the meaning of the pimping and pandering statutes (§§ 266h, 266i). (See Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 424; People v. Hill (1980) 103 Cal.App.3d 525, 534-535.) In contrast, a lewd and lascivious act within the meaning of section 288, as required by section 266j, does not necessarily require a defendant to touch the child's body since the requisite touching may be done by the child victim at the defendant's instigation. (See People v. Meacham (1984) 152 Cal.App.3d 142, 152-154, disapproved on another ground in People v. Brown (1994) 8 Cal.4th 746; People v. Austin (1980) 111 Cal.App.3d 110, 112-114.)
Our section 654 analysis is complicated by the nature of pandering and the general principle that once someone is "procured" for ongoing prostitution, each separate act of prostitution does not ordinarily give rise to a separate crime of pandering. (See People v. White (1979) 89 Cal.App.3d 143, 151 [applying section 266i, subdivision (c) (now subdivision (a)(3)]; cf. People v. Dell (1991) 232 Cal.App.3d 248, 266 [refusal of unanimity instruction in pimping and pandering prosecution not error because those were continuous, ongoing crimes not subject to requirement that jurors agree on specific acts constituting the offense]; cf. also People v. Lewis (1978) 77 Cal.App.3d 455, 459-461 [multiple convictions of pimping reversed because defendant could be convicted of only single offense of pimping in violation of section 266h where continuous criminal conduct involved one prostitute and multiple acts of prostitution over period of years].) On the other hand, where unlawful conduct under section 266i or section 266j was separable in time, defendants have been convicted and punished for more than one offense. (See People v. Deloach (1989) 207 Cal.App.3d 323 [mother, who forced daughter to commit separate acts of prostitution about three weeks apart, was guilty of two pandering offenses in violation of former subdivision (b) (now subdivision (a)(2)) of section 266i]; People v. Roberson (1988) 198 Cal.App.3d 860 [two convictions of child procurement under section 266j for conduct occurring on different days].)
In applying section 654, "we focus on the question whether defendant should be deemed to have entertained single or multiple criminal objectives" (People v. Perez, supra, 23 Cal.3d at p. 552) and we consider the divisibility of defendant's course of conduct in terms of time. We keep in mind the rationale of applying section 654 to ensure punishment will be commensurate with culpability (id. at pp. 551-553). We conclude that defendant's conduct on Monday was separable in time and aimed at the further separate objective of overcoming Van's fear and resistance and inducing her to provide sex again. (Cf. § 266i, subd. (a)(4) [another form of pandering covers causing, inducing, persuading or encouraging a person to remain as an "inmate" "in a house of prostitution, or any other place in which prostitution is encouraged or allowed," by "promises, threats, violence or by any device or scheme"].) Section 654 does not preclude punishment for both convictions.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.