Opinion
A146013 A148084
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ELLIOTT PAKEMAN, Defendant and Appellant. In re JUSTIN ELLIOTT PAKEMAN, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH56962)
Defendant Justin Elliott Pakeman appeals from a judgment convicting him of pimping, pandering, and domestic violence. He contends that the prosecution's "sudden" and "unexpected" production just weeks before the start of trial of "almost 6,800 pages of devastating discovery downloaded from [his] cell phone that had sat untouched in police custody for almost a year" resulted in or contributed to a violation of his constitutional rights to due process and effective assistance of counsel. He also contends that the court erred in admitting improper character evidence, much of which was gathered from his cell phone. Defendant reiterates his claims in a petition for a writ of habeas corpus, which we have consolidated with the appeal. Finding no error, we shall affirm the judgment and deny the petition for a writ of habeas corpus.
Factual and Procedural Background
On December 30, 2014, defendant was charged by information with one count of felony pimping (Pen. Code, § 266h, subd. (a)), one count of pandering by procuring (§ 266i, subd. (a)(1)) and one count of felony corporal injury to a relationship partner (§ 273.5, subd. (a)). The information alleged that the crimes occurred in Alameda County on July 18, 2014 and involved a single victim.
All statutory references are to the Penal Code.
On April 23, 2015, after rejecting a number of plea offers, defendant invoked his right to a speedy trial, and the matter was sent out for trial.
On June 15, 2015, the parties declared they were ready for trial. The prosecution made a final plea offer that was rejected.
The following morning, the court heard the prosecution's in limine motion to admit evidence recovered from defendant's cell phone. The prosecution's written motion explained, "A search warrant for an examination of defendant's phone was authored and a subsequent search was performed. Defendant's cell phone return shows text message conversations with [the victim] from a period of June 30, 2014 through July 18, 2014. These text messages are evidence of pimping and pandering. Additionally, the cell phone has evidence of pimping and pandering in the notes, voicemails and text messages to other contacts as well. The People will lay a foundation for the cell phone forensic examination through [an expert] and seek to admit the evidence from the forensic examination for the defendant's phone." Defense counsel noted on the record that the prosecutor had provided a thumb drive with over 6,800 pages of data about a week before the hearing and that he had "slugged [his] way though some of it [but] not all of it." Counsel requested that the prosecutor advise counsel of "whatever she intends to use" so that he could "make an objection or not object based on what she intends to use. Otherwise, [he] would make a general objection to all of it." The court granted the in limine motion but explained to defense counsel, "if you feel you need more time or feel the DA has hidden the ball, I'll give you whatever time you need because I think 6,800 pages of discovery a week before the trial . . . isn't adequate time. However, I counter balance that with [defendant's] desire to go no time waiver." The court advised the prosecutor that she was going to have to reduce the 6,800 pages to "something manageable" and directed her to identify for defense counsel "the really salient or highly relevant pages" she expected to use at trial. The court also observed that it might be a good thing that trial would not start immediately due to his being gone a few days, so defense counsel would have some time to devote to reviewing the cell phone evidence. Defense counsel confirmed, "I accept that [the prosecutor] will provide whatever she thinks she's going to use and I'll have a chance to review it." Defendant never offered to withdraw his demand for the prompt commencement of trial.
On June 17, 2015, the prosecution moved "to amend count 1 and count 2 of the information to allege a date/time period of, on, or about November 2013 through July 18, 2014." The trial court granted the motion over defendant's objection.
Following selection of a jury, the presentation of evidence began on June 29. The following evidence was presented to the jury:
The victim testified that she was 17 and half years old when she first met defendant. Almost immediately they began dating and then later began living together. About a year into their relationship, defendant asked her to work for him as a prostitute. For the next year, starting September, 2013, she worked as a prostitute and considered him to be both her boyfriend and her pimp.
Defendant required that she earn $1,000 a day and give it all to him. He told her how much to charge and instructed her to get the money up front. She worked every day because, if she objected, he would beat her, threaten her, punish her by taking away her cell phone, or verbally abuse her. He supplied her with condoms; short, skimpy clothing; high heels; manicures; and often drove her to locations where she could get "dates." She stayed in contact with him by phone, texting or calling him when she got a "date." She identified her phone number and her name as "Tema" in text messages extracted from defendant's cell phone. She also identified sexual services web pages on defendant's cell phone that she said defendant set up and paid for, posting both his and her cell phone numbers. He paid for the motel rooms used by her and her clients and bailed her out of jail when she was arrested. When she became pregnant, he took her to a clinic to get an abortion, then sent her back to work a few days later. She continued working for him because she was scared to leave.
On July 18, 2014, when defendant took her to San Jose to work, she refused to get out of the car. On the way home, he pulled off the road and they began fighting. She described him as angry, "hysterical," violent, and said he repeatedly hit her with his belt, cutting her lip and foot.
A neighborhood resident heard the argument and called the police. The victim told the responding officer that defendant was her pimp, so the officers arrested him and searched his car, seizing, among other items, a cell phone. An extraction of the cell phone's data later gathered almost 48,000 items that filled approximately 6,800 pages. It included, since the account was created on September 26, 2013, eight outgoing, seven incoming, and 25 missed calls, as well as 306 text messages, sent to or from "Tema." Several of the messages corroborated the victim's testimony that she was working as a prostitute and defendant was her pimp, including references to prices, and the term G1 ("Got 1") meaning a "date."
Oakland Police Officer Jason Skrdlant testified as an expert on pimping and pandering. He explained that the pimp controls every aspect of the prostitute's work and life and might enforce his rules with violence. Pimps try to isolate the girls from family and friends and make them completely reliant on the pimp for shelter, food, and protection. Officer Skrdlant testified that he was familiar with the online websites used in the sexual services business, including myRedbook.com, which was located on defendant's cell phone. After reviewing the data downloaded from defendant's cell phone, Officer Skrdlant testified that, in his expert opinion, the "holder" of the phone "was involved in pimping and prostitution."
Finally, the prosecution called Shaneika West as a witness. West testified that defendant was her boyfriend and that they had been dating and living together for several years. She denied working as a prostitute and said she did not know defendant to be a pimp. The prosecutor questioned her extensively about numerous text messages and websites downloaded from defendant's phone showing her phone number in connection with prostitution activity by a woman named "Cheyenne."
Defendant rested without putting on any evidence.
The jury found defendant guilty on all counts. Defendant was sentenced to a total of five years four months in prison. Defendant timely filed a notice of appeal.
Discussion
1. Defendant's due process rights were not violated.
Defendant contends the trial court violated his right to due process by forcing him to choose between his constitutional right to a speedy trial and his right to effective assistance of counsel. The record does not support his claim.
Defendant was provided a speedy trial as requested and he does not contend otherwise on appeal. Nothing in the record supports defendant's claim that his attorney was unprepared for trial as a result of his refusal to waive time. As set forth extensively above, defense counsel initially expressed concern about the size of the discovery materials and asked that they be whittled down so that he could make any appropriate objections to their admissibility. After some discussion, defense counsel accepted the prosecutor's assurances that the materials would be reduced and confirmed that he would be ready for trial. Approximately 200 pages were admitted at trial and no objections were lodged. Because the presentation of evidence did not commence until June 29, defense counsel had sufficient time to review this material before trial. Counsel's cross-examination of the witnesses about the cell phone evidence further supports the conclusion that counsel was adequately prepared despite the exercise of defendant's speedy trial right. Accordingly, we find no violation of defendant's due process rights.
Any claim on appeal that the discovery production was untimely was forfeited by defendant's failure to object in the trial court. (People v. Valdez (2012) 55 Cal.4th 82, 121.)
2. Defendant received effective assistance of counsel throughout the proceedings.
To establish ineffective assistance of counsel under either the federal or state guarantee, a defendant must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that counsel's deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for counsel's failings, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Waidla (2000) 22 Cal.4th 690, 718.)
Defendant contends his attorney failed to provide effective assistance of counsel "because he failed to move to suppress [the] damning cell phone evidence." He argues, "There was unquestionably a valid challenge to be raised that would have resulted in exclusion of the evidence at trial based on the overbroad, indiscriminate scope of the search, whether in violation of the particularity requirement of the Fourth Amendment, and/or in violation of the Fourth Amendment's requirement of reasonableness in the execution of a warrant."
The warrant in this case authorizes the police to search defendant's phone for "All digital data stored within the cellular telephone[] including any attached storage media, videos and photos." The affidavit submitted in support of the warrant details the circumstances of defendant's arrest, as well as additional investigation into the offense and states based on the training and experience of the affiant officer that "it is common for those committing criminal acts to utilize cellular telephones;" that "analysis of cellular telephone detail; data and call activity can often corroborate and/or dispel testimony of witnesses or suspects;" that "[c]ellular telephones often contain voice messages, text messages, call logs and contact lists documenting communications between suspects and victims. Many of these cellular telephones have built in cameras and may also contain images taken by, or of the participants in the criminal activity being perpetrated. This communication and/or images taken with the telephone camera, or stored in the telephone memory, often occur before, during and after the commission of the criminal activity, including but not limited to the planning phase of said activity" and that "cellular telephones are sometimes used to coordinate the meeting of involved parties for the exchange of sexual favors for money."
The search warrant and supporting affidavit are attached as an exhibit to defendant's consolidated petition for habeas corpus. --------
Even assuming, without deciding, that defendant is correct that the warrant was overbroad or that the indiscriminate downloading of all data on the cell phone violated his Fourth Amendment rights, he has not shown that counsel's failure to move to suppress the evidence was prejudicial. (See People v. Howard (1987) 190 Cal.App.3d 41, 48-49 [even if counsel's failure to bring a suppression motion was unjustified, "a new trial would not be required because there is no 'reasonable probability' of a different result on retrial"].)
It is well established that "[e]ven when a warrant is overbroad in part, evidence will not be suppressed if it was seized pursuant to a portion of the warrant which was not." (People v. Holmsen (1985) 173 Cal.App.3d 1045, 1048, italics omitted; People v. Ulloa (2002) 101 Cal.App.4th 1000, 1005-1006 [no trial error where descriptions of certain items in warrant were overbroad but those items were not introduced at trial].) There is no doubt that the warrant properly authorized the search of the phone for text messages, email, photographs or other data involving the named victim in this case. This evidence, which made up the majority of the cell phone evidence introduced at trial, was clearly admissible. Given the overwhelming weight of the evidence of defendant's guilt, based on the victim's testimony as corroborated by the relevant cell phone evidence, any failure to move to suppress other evidence recovered from the cell phone was undoubtedly harmless.
Defendant also contends his counsel was ineffective because he failed to review the cell phone data and properly advise him about its likely impact prior to his rejection of the prosecution's last plea offer. Where defendant asserts that counsel's ineffective representation resulted in his rejection of an offered plea bargain, the adequacy of counsel's advice " 'depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.' " (In re Alvernaz (1992) 2 Cal.4th 924, 937.) "To establish prejudice, a defendant must prove there is a reasonable probability that, but for counsel's deficient performance, the defendant would have accepted the proffered plea bargain and that in turn it would have been approved by the trial court." (Ibid.)
In his affidavit attached to his petition for habeas corpus, defendant states that he would have accepted the offer had he known that "all cell phone evidence was going to be used against me." He also states, however, that he was aware that the prosecutor had disclosed 6,800 pages of downloaded data from his cell phone and when he asked his trial counsel "if there was any way to suppress the downloaded data and he informed me no." The record indicates that defendant conferred with counsel briefly before rejecting the offer and according to counsel, "what [they] talked about was not so much what the offer was but what portions of the cell phone evidence would and would not be used and [counsel] indicated to [defendant] that that this is something we will have to argue about in this courtroom when we get to that point." Presumably, defendant was aware of the "damning" contents of his phone, including the messages that would corroborate the victim's testimony, and counsel acknowledged having conducted a preliminary review of the disclosed data. Given this record, we fail to see how the advice counsel provided was deficient in any way or how additional time to review the data would have altered the advice given.
Accordingly, we find that defendant was adequately represented throughout the proceedings.
3. The court did not introduce improper character evidence.
Evidence Code section 1101, subdivision (a), establishes a general rule excluding "evidence of a person's character or a trait of his or her character . . . when offered to prove his or her conduct on a specified occasion." Evidence Code section 1101, subdivision (b) clarifies, however, that this general rule does not exclude evidence of uncharged conduct which is relevant to prove some fact other than bad character or criminal disposition. If a trial court determines that evidence of a criminal defendant's uncharged conduct is not excluded by the general rule codified in Evidence Code section 1101, the court must also independently consider whether the evidence should be excluded pursuant to Evidence Code section 352. (People v. Balcom (1994) 7 Cal.4th 414, 426.) Evidence must be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission would "(a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." On appeal, we review rulings under Evidence Code sections 1101 and 352 for an abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329.)
Defendant contends the expert testimony of Officer Skrdlant, including his opinion that the "holder" of the phone was "involved in pimping and prostitution," was inadmissible character evidence under Evidence Code section 1101. Prior to trial, the prosecutor moved to admit the testimony of an expert in the area of "pimping and pandering" who would be qualified to discuss such things as "recruitment, manipulation, roles of pimps vs. roles of prostitutes, victimology, 'rules' of the typical relationship, terminology and the overall subculture." Defense counsel objected, stating, "I have to know what the expert is going to say. I would assume that the complaining witness in this case would be able to at least tell the court what she understood certain terms to mean without the need of an expert. But I'm not sure that other than that there's anything that an expert could add." The court granted the prosecution's motion, noting that there are certain phrases and words that maybe the average citizen may not understand and some people may be "very unfamiliar" with the subject matter involved.
Following the expert's testimony, the court noted for the record that "prior to the officer's testimony, [defense counsel] re-enumerated his objection from pretrial motions, that the officer's testimony was really irrelevant, unduly prejudicial and somewhat cumulative." The trial court reiterated that the basis for the initial ruling was that "some of the terms and issues may be unfamiliar to the average person." The court acknowledged, however, that after hearing the testimony he was "worried about the unduly prejudicial aspect" but that the ruling had been made and "whether or not it's cumulative or unduly prejudicial" would be up to the appellate court.
We cannot say that the court abused its discretion in admitting Skrdlant's testimony as a whole. Some portions of the testimony clearly fall within the scope of reasonable expert testimony. With respect to defendant's argument that the expert's opinion that the holder of the phone was involved in pimping was either inadmissible as character evidence or unduly prejudicial, we note the absence of a specific objection. Nonetheless, given the overwhelming evidence of defendant's guilt based on the properly admitted testimony, we conclude that any potential error in the admission of this testimony would be harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant also contends that the victim's testimony that defendant forced her to have an abortion and return to prostitution a few days later was inadmissible character evidence. While this evidence is potentially inflammatory, it is also highly relevant to establishing the coercive nature of defendant's relationship with the victim. Again, however, we need not resolve the admissibility issue because any error would certainly not be prejudicial.
Finally, defendant contends the court erred in admitting most or all of Ms. West's testimony. Defendant argues that the prosecutor's "direct examination elicited little evidence material to the charges; it was repetitive, pointless, cumulative, time consuming, and prejudicial." More importantly, he suggests that West's testimony was merely a vehicle to introduce prejudicial character and uncharged crimes evidence against defendant by impeaching West with her text and email messages to and from defendant. Defendant's brief, however, identifies only three specific objections made by defense counsel, two of which were sustained and the third was overruled with a warning that the testimony was "getting quite repetitive." Defendant's argument on appeal that the bulk of West's testimony was improper character evidence and thus should not have been admitted is likely beyond the scope of the objections made at trial. Again, however, any potential error in this regard is harmless in light of the overwhelming evidence of defendant's guilt.
Disposition
The judgment is affirmed. Defendant's consolidated petition for habeas corpus is denied.
/s/_________
Pollak, J. We concur: /s/_________
McGuiness, P. J. /s/_________
Siggins, J.