Opinion
H043561
04-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JABAR EXSAVIA POLLINS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1477015)
Defendant Jabar Exsavia Pollins was convicted by a jury of second degree robbery (Pen. Code, §§ 211, 212.5). The jury also found true an enhancement that he personally used a firearm during the commission of the offense (§ 12022.53, subd. (b)). Defendant was sentenced to a total term of 12 years in prison. On appeal, he argues the trial court erred when it admitted expert testimony on pimping and pandering. He claims this testimony was irrelevant, prejudicial, and amounted to improper profile evidence. For the reasons set forth below, we find no merit in defendant's argument that expert testimony was admitted in error.
Unspecified statutory references are to the Penal Code.
While defendant's appeal was pending, the Legislature amended section 12022.53, subdivision (h), effective January 1, 2018. (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018.) Section 12022.53, subdivision (h) now grants trial courts the discretion to strike or dismiss firearm enhancements pursuant to section 1385. In a supplemental brief, defendant argues his case must be remanded so the trial court may exercise its discretion to strike or dismiss his firearm enhancement under section 1385. The People concede that the amended version of section 12022.53 applies to defendant's case. We accept the People's concession and remand the matter to the trial court so it may exercise its discretion and decide whether to strike the firearm enhancement.
BACKGROUND
1. The Information
On May 28, 2015, defendant and his codefendant Kandace Holland were charged by information with a count each of second degree robbery (§§ 211, 212.5). The information further alleged that defendant personally used a firearm during the commission of the robbery (§ 12022.53, subd. (b)) and that Holland was armed with a firearm during the commission of the robbery (§ 12022, subd. (a)(1)).
2. Motion in Limine
Prior to the trial, defendant sought to exclude evidence and opinions that he was a pimp. The prosecution's theory of the crime was that defendant was codefendant Holland's pimp, and Holland communicated with defendant to ensure he was there to commit the robbery when the victim was vulnerable and in a state of undress. During the hearing on defendant's motion in limine, the prosecutor explained that he intended to use an expert witness who would testify in general terms about how pimps and prostitutes typically work together. The prosecutor asserted that he did not need to charge defendant with pimping and pandering in order to argue he was Holland's pimp.
Detective Jennifer Galan, the prosecutor's expert on pimping and pandering, testified at a hearing under Evidence Code section 402. Galan explained how pimps and prostitutes work together and described some of the typical dynamics in a pimp and prostitute relationship, such as a pimp's ability to control a prostitute's movements. Afterwards, defendant argued her expert testimony should be excluded as irrelevant and prejudicial. The trial court decided it would permit Galan to testify after determining that the totality of the circumstances supported the prosecution's theory that defendant and Holland had a pimp-prostitute relationship. The court noted that defendant would be able to cross-examine Galan to undermine the prosecution's theory.
3. The Prosecution's Case
a. Victim Mohammad Naveed's Testimony
On November 20, 2013, Mohammad Naveed went to Mariani's Inn in Santa Clara to meet a woman he had met on "Redbook," an Internet Web site for prostitution services. He had called and arranged to meet with the woman after coming across her advertisement on the Web site. The woman had texted Naveed the address for Mariani's Inn and provided him with a specific room number when he arrived at the hotel. Before Naveed arrived, they agreed upon a price of $60. Naveed did not bring his wallet and only brought $60 with him. When he arrived at the room, he knocked on the door. The woman in the photo he had seen online opened the door. Naveed identified the woman as codefendant Holland.
On cross-examination, Naveed said he could not recall if he brought $40 or $60 with him.
After he entered the room, Naveed began to suspect that Holland was not the same woman depicted in the photograph he had seen online. He did not really want to go forward with the transaction, but he went ahead and placed the agreed-upon money on the table. He started to undress himself. He remarked that Holland was not the woman in the photo. Holland told him he was wasting her time and began texting someone. Naveed became afraid that he was going to get robbed. Naveed was intoxicated at the time, and he could not remember how many drinks he had before meeting Holland.
Naveed had previously stated at the preliminary hearing that he had three shots of liquor about two hours before going to the hotel. At trial, he testified that it was possible he had more than three drinks that night.
During the trial, Naveed provided several different accounts about what happened next. On direct examination, Naveed testified that he decided to leave so he put his clothes back on and opened the door of the hotel room. On cross-examination, Naveed admitted that he had previously said he had wanted to get his money's worth from Holland. Although he denied he had sex with Holland, he admitted that Holland had told him to stop what he was doing, which made him angry. He also said he was in the process of putting on a condom when Holland told him he was wasting her time and that his time was up.
Naveed described that after he opened the hotel room door to leave, he saw a man standing right outside with a gun. The man told Naveed to go back inside the room and to give him everything that he had on him. Naveed took off his belt and gave it to the man. As Naveed was about to leave, the man noticed Naveed's Gucci watch, which Naveed estimated to be valued at approximately $1,500. The man told Naveed to give him the watch, otherwise he would shoot Naveed in the leg. Naveed took off his watch and gave it to the man. Naveed estimated about three or four minutes elapsed between Holland texting someone and the man appearing outside the hotel room door.
Afterwards, Naveed called the police. Initially, Naveed did not tell the officers the truth about the encounter at the hotel, because he did not want the officers to know he had gone there to meet a prostitute. Over the phone, he told officers that someone had taken his watch, and he had gone to the hotel to use the bathroom. He also said he had a friend named Daniel who was with him. Later, when he was at the police station, Naveed told officers a slightly different story. Naveed told officers that he had gone to the hotel to drop off a friend named Daniel. He lied and said he left his car to use the bathroom, and when he walked down the hall he heard footsteps from behind him. When he turned around, he saw an African American man holding a handgun. When pressed by the officers, Naveed was unable to answer any questions about Daniel. Afterwards, Naveed decided to tell the officers the truth. However, he initially told officers he went to the hotel for a massage.
Approximately two weeks later on December 4, 2013, the police came to Naveed with two sets of photo lineups. Naveed chose the photographs from the lineups that most closely matched the man and the woman that he had encountered at Mariani's Inn that night.
At the preliminary hearing, Naveed was able to identify Holland as the woman at the hotel but was not certain that defendant was the man who had robbed him. Naveed explained that it was dark that night and he was drunk. However, he believed defendant had a similar complexion, height, and build as the man who had robbed him. The night of the robbery, Naveed told officers the man who robbed him had a grill or gold teeth. He also remembered the gun that the man used had a silver top and a black bottom. At trial, he could not identify defendant as the man with the gun. He testified he was not 100 percent sure defendant was the culprit. When pressed, Naveed said he was "50/50" certain that defendant robbed him.
b. The Investigation
Santa Clara Police Officer Nathan Crescini was on duty at the time of the robbery. He was first dispatched to Mariani's Inn and later met Naveed outside the police station. Naveed did not appear intoxicated to Crescini at the time. Naveed provided Crescini with a statement about what had transpired at the hotel. Initially, Naveed told Crescini he was robbed at gunpoint after he dropped off a friend at the hotel. Naveed changed his story once Crescini pressed him. Naveed told Crescini that he had found a woman on "myredbook," a Web site used for prostitution. He had sent the woman a picture of himself, and the woman had arranged a meeting place. Naveed showed Crescini his phone to corroborate his story. Naveed asserted that once he arrived at the hotel, he went upstairs to a room, entered, and met with the woman. He was initially alone with the woman in the room. Naveed said he did not like the way the woman looked, so he decided to leave.
Before he left the room, he saw the woman text someone on her phone. As he walked out the door, he was confronted by a man with a gun. Naveed described the man as an "African-American male wearing a gray hoodie, blue jeans, and carrying . . . a chrome semi-handgun . . . about 5 foot 7, 180 pounds." The man's hair was in dreadlocks, and he had gold teeth. Naveed said that the man told him to give him everything that he had. The man "felt" Naveed as if to determine if Naveed had his wallet on him. He took Naveed's Gucci belt. When he saw Naveed's Gucci watch, he told Naveed to hand it over otherwise he would shoot Naveed in the leg. Crescini recalled he asked Naveed whether he had sex with the woman he arranged to meet. Naveed told him he did not. After Crescini spoke with Naveed about the robbery, he told Naveed to wait outside in his truck. Naveed drove away instead.
Later, Officer Crescini went to Mariani's Inn and knocked on the door of the room where Naveed had met the woman. Nobody answered. Crescini also asked the night clerk on duty to call the room. Again, nobody answered.
Officer Stacey MacFarlane conducted two photo lineups, one with six males and one with six females, with Naveed on December 4, 2013. Pursuant to police procedure, MacFarlane was not familiar with the case and had not been involved in its investigation. MacFarlane followed the standard protocol for conducting photo lineups, read Naveed an admonishment, and noted the comments made by Naveed about the photos.
When Naveed was shown the photo lineup of the six females, he initially said he did not recognize any of the women shown. He went through the photos a second time and said it was possible the woman in the fourth photo was the woman he met at the hotel. This woman was later identified to be Holland.
When Naveed was shown the photo lineup of the six males, he paused at the second photo and asked if the man shown in the photo had a "grill." However, he said none of the photos depicted the man who robbed him that day. The second time he was shown the photos, he stopped at the second photo again and remarked that the photo was the closest match to the man who had robbed him. This man was later identified to be defendant.
On February 17, 2014, Officer Patrick Nikolai developed a lead on defendant and Holland's location. He believed they were at the Embassy Suites Hotel in Santa Clara. When he arrived at the hotel, he saw defendant walking into the hotel lobby. Nikolai and another officer, Sergeant Hoesing, approached defendant and asked him to identify himself. Defendant initially identified himself as "Chris." He later gave his real first name. Nikolai and Hoesing learned defendant had rented a room inside the hotel. When they went to the room, they found Holland inside.
The officers searched defendant's car and found a gun in the glove box, a letter addressed to Holland, and a rental agreement for the hotel room at the Embassy Suites. The gun was registered to Satira Padilla. In the car's trunk, the officers found two Gucci belts and a Gucci watch. There were several other belts in the trunk, as well as some other clothes and personal hygiene items. Naveed confirmed that the Gucci watch found in defendant's car was his. He later clarified that he was "90 percent" sure the watch was his, because his watch was a limited edition watch.
The officers searched defendant and found $2,256 in cash, divided into two bundles of $1,000, two bundles of just two bills, and the rest in miscellaneous denominations. Officer Nikolai could not recall if he searched Holland individually but remembered that she had several large bags of personal property in the hotel room.
A criminalist with the Santa Clara County Crime Laboratory, who was qualified as an expert in DNA collection and firearms function examination, examined the gun found in defendant's car. He determined the gun was functional. He also swabbed the gun in several locations to obtain contact DNA samples. Another criminalist with the crime lab who was qualified as an expert in forensic DNA analysis examined the DNA swabs. He determined that defendant was a possible contributor to the DNA found on the gun's grip. He also concluded that defendant's DNA was a major contributor to DNA found on multiple parts of the gun. According to the criminalist, DNA can be found on a gun even if the person did not personally handle it.
c. Expert Testimony on Pimping and Pandering
Detective Galan testified over defendant's objection as an expert in pimping and pandering. Galan was assigned to the Santa Clara County Sheriff Office's Human Trafficking Task Force.
Detective Galan defined a "pimp" as a person who derives monetary or financial gain from another person who is acting as a prostitute. She defined "prostitute" as a person who engages in sexual service in exchange for money or goods. Prostitutes usually have close relationships with their pimps, and they usually talk to each other every day, multiple times a day. Pimps exercise a great deal of control over their prostitutes. Typically, prostitutes need permission from their pimps for a variety of different daily tasks, such as eating or buying things, and pimps often give their prostitutes a set of rules to follow. Pimps often control the movement of prostitutes and dictate where they work. Pimps frequently drive their prostitutes around to different locations and move them every few days in order to evade police detection. Although many prostitutes say they work alone, in Galan's experience approximately 80 to 90 percent of prostitutes work with a pimp.
Prostitutes sometimes advertise their services online. The advertisements will have provocative pictures of the prostitute as well as a dollar amount for the services offered. Sometimes an advertisement will say "incall only." "Incall" means that the prostitute will not leave her hotel room, and the customer needs to go to the prostitute. Detective Galan had previously conducted operations where officers went undercover to "incall" locations. During these operations, officer safety is an issue, because officers are entering the prostitute's territory and are not fully aware of what may be waiting for them at the location. In past operations, officers have found stolen handguns in the room. If the prostitute is working with a pimp, it is common for the pimp to be armed and nearby during an "incall" service to watch over the transaction and ensure things are going smoothly.
Detective Galan testified that prostitutes usually work for cash. Prostitutes also often try to cover and lie for their pimps so the pimp will not get in trouble. Sometimes they will lie and take the blame for certain acts. A prostitute is not always victimized by his or her pimp. Prostitutes often have pimps for safety and protection.
d. Testimony by Codefendant Holland
Holland, defendant's codefendant, testified that she had been working as a prostitute since 2012. Holland explained that she became a prostitute after she became homeless. She had posted an advertisement online for her services, which described herself as "mixed race." Holland used two phones, one phone was for personal use ("the 925 number") and the other was listed on the advertisement ("the 805 number"). Holland said that a friend helped her take the photographs used for her advertisement.
On November 20, 2013, Holland was staying at Mariani's Inn in Santa Clara. In the early morning that day, Naveed responded to her online advertisement. It was not the first time Naveed had requested her services. Naveed and Holland agreed that Naveed would bring $60. When Naveed arrived at the hotel, Holland texted him her hotel room number and Naveed went up to her room. Holland did not think Naveed was intoxicated at the time. Naveed placed money on the table and the two started to get undressed. Naveed took his pants and shoes off but left his shirt on. Holland got fully undressed. She also provided Naveed with a condom. The two began having intercourse on the bed.
In the middle of having intercourse, Naveed stopped and told Holland he wanted to "try [her] rear." Holland responded that they had already made an agreement, and he would have to "provide a little bit more" to get what he wanted. Naveed responded that he had a watch. He described it as a "Gucci Latin watch, Grammy watch." Holland used the 805 number phone to research Naveed's watch. She believed the watch had value (approximately $1,200), so she agreed to take the watch. In exchange, she also agreed to give Naveed around five or six hours of time. Naveed took his watch off and placed it on the table with the money he had brought. Naveed never gave her his Gucci belt.
Naveed proceeded to have intercourse with Holland, but Holland soon believed it was getting rough and uncomfortable. Holland told him to slow down, but he did not respond. She then told him to stop, because he was hurting her. Naveed placed his hand on her back so she could not get up. After Naveed finished, Holland jumped up and told him that he had hurt her. She then told him that she was going to call the police. She grabbed the 805 number phone and pretended she was dialing a number. Naveed took his clothes and ran out of the hotel room.
After Naveed left, Holland was left alone in the room. She did not call anyone, but she used the 805 number phone to call the 925 number phone. She did so because she thought Naveed may have accidentally grabbed the 925 number phone as he was leaving. Holland showered. Later, she heard knocks on the door of the hotel room. She did not answer the door, because she thought Naveed may have come back.
Holland said she had known defendant since she was two years old. She did not have a car, but defendant would often give her rides. She said that defendant was not her boyfriend, although she had previously referred to him that way. As a prostitute, she thought people would "look at [her] in a better way" if she had a boyfriend with her. She also insisted that he did not stay with her at Mariani's Inn or at the Embassy Suites where she was later arrested.
Holland admitted that she never reported Naveed to the police even though she had the opportunity to do so. She also admitted that she advertised 30 minutes of anal sex for $100 on her Web site, but insisted that on the night in question she essentially charged Naveed $1,200, the cost of the watch, for the same services.
According to Holland, defendant was not at Mariani's Inn at the same time as Naveed. She never saw defendant pull a gun on Naveed or threaten Naveed with a gun. She called defendant to come give her a ride after Naveed had forced himself on her, and defendant did not arrive at the hotel until well after Naveed had left.
Prior to their encounter on November 20, 2013, Holland had met Naveed three times. They met for the first time around August 2013 at a Motel 6. Naveed paid Holland around $60. They met again a month later at the same hotel, and Naveed paid Holland $100. The third time occurred sometime in October 2013 at the same hotel, and Naveed paid her around $60. Before their meeting in November 2013, Holland asked Naveed for a photograph even though she already knew what he looked like. She explained she did so, because she initially did not know she was conversing with Naveed.
Defendant was the one who drove her to the Motel 6 for her previous meetings with Naveed. Defendant was also the one who drove her to Mariani's Inn and the Embassy Suites. Holland explained that she would give defendant money, and defendant would get her a hotel room while she waited. The hotel rooms were booked using defendant's name.
According to cell phone records, Holland called the phone number she had initially insisted at trial was her personal cell phone number (the 925 number) three times the evening of the robbery. Holland was unable to provide a clear explanation about why she called the 925 number more than once. She was also unable to provide a clear explanation about why phone records showed that she called the same 925 number 200 times between October 1, 2013, and March 18, 2014. She insisted the 925 number was hers, and it was not defendant's phone number. She denied she called the 925 number to check in with defendant. She also denied that defendant was her pimp. She said defendant was her cousin, and she did not believe he knew that she was a prostitute. She claimed he did not question why she needed him to arrange for hotel rooms or why she went to many different hotels. At the time, she believed defendant was self-employed and took care of seniors.
Holland confirmed she worked for cash as a prostitute. She did not give her earnings to defendant. She kept the cash with her belongings, usually in a bag. However, the police would not have been able to find the cash when they conducted a search of her belongings at the hotel where she was arrested. She kept her money at home. She explained that defendant was bringing her some of her mail at the time of the arrest, which is why there was a letter addressed to her inside of defendant's car.
She also acknowledged that defendant's car trunk was filled with bags of her belongings. She denied that the bag of belts found in the trunk was hers. She also did not know why defendant would have clothing in the trunk. She described the Gucci watch as her watch and said she did not have a negative association with the watch despite what had happened that night with Naveed. Holland said she had never seen defendant with a gun.
Later, Holland testified that she had not been truthful earlier about the two phone numbers she had. She clarified that the phone number she had initially claimed to be her personal phone number, the 925 number, was a shared phone number she used with a friend—the same friend that had helped her with the photographs on her online advertisement. According to Holland, her friend, who was also a prostitute, had come with her to Mariani's Inn that night. She called her friend at the 925 phone number after Naveed left that night. However, she claimed she had not spoken to her friend since December 2014. She also insisted that to the best of her knowledge, defendant and her friend did not know each other. However, the 925 number was the same number defendant used the night he checked into Mariani's Inn on Holland's behalf.
Holland also acknowledged she gave the police a phone number during an incident in March 2013 when she was with defendant. That phone number was identical to the 925 number she insisted she shared with her friend, except it was off by one digit. Later, Officer Mitch Maeruga testified that he spoke with defendant and Holland in March 2013 during that incident. At that time, he got one phone number from defendant, and it was a phone number that was off by one digit from the 925 number Holland insisted she shared with her friend.
e. Defense Investigator's Interview with Naveed
John Christopher Miles, an investigator employed by the defense, interviewed Naveed at his work on April 2, 2014. Miles asked Naveed to describe the gun that was used during the crime. Naveed specifically said the gun was "not a revolver," and the top of the gun was black and the bottom of the gun was silver.
4. Verdict and Sentencing
On March 25, 2016, the jury found defendant guilty of second degree robbery (§§ 211, 212.5) and found true an enhancement that he personally used a firearm during the commission of the robbery (§ 12022.53, subd. (b)). On April 29, 2016, defendant was sentenced to a determinate term of 12 years in prison, composed of the low term of two years for the robbery and 10 years for the firearm enhancement. Defendant appealed.
DISCUSSION
1. Expert Testimony on Pimping and Pandering
Defendant argues the trial court erred when it admitted Detective Galan's expert testimony on pimping and pandering. He claims that Detective Galan's testimony should have been excluded under Evidence Code section 352. He argues the evidence was irrelevant and prejudicial, because defendant and Holland were not charged with pimping and pandering in the underlying case. We review a trial court's rulings on the admission or exclusion of evidence under Evidence Code section 352 for an abuse of discretion. (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
Evidence of uncharged criminal misconduct is not per se inadmissible. The general proposition in criminal cases is that evidence must be relevant to be admissible and all relevant evidence is admissible unless otherwise excluded. (Evid. Code, §§ 350, 351; People v. McCurdy (2014) 59 Cal.4th 1063, 1095 (McCurdy).) Pertinent here, evidence of uncharged crimes is admissible under Evidence Code section 1101, subdivision (b), which permits "admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Additionally, otherwise admissible evidence, including evidence of uncharged crimes, may be excluded under Evidence Code section 352 if its probative value is substantially outweighed by the probability that its admission will be unduly prejudicial. (McCurdy, supra, 59 Cal.4th at p. 1095.) Under Evidence Code section 352, a trial court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." " 'The "prejudice" referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.) " 'In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction.' " (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
Defendant analogizes his case to those cases prohibiting admission of gang evidence in cases where there are no gang allegations, citing People v. Memory (2010) 182 Cal.App.4th 835 (Memory), People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), and People v. Bojorquez (2002) 104 Cal.App.4th 335 (Bojorquez). Defendant's reliance on these cases demonstrates a fundamental misunderstanding of what these cases hold. Neither Memory, Albarran, nor Bojorquez stand for the proposition that gang evidence is always inadmissible if there are no underlying gang charges brought in a criminal prosecution.
In Memory, the appellate court concluded that " '[g]ang evidence is relevant and admissible when the very reason for the underlying crime, that is the motive, is gang related.' " (Memory, supra, 182 Cal.App.4th at p. 858.) However, the appellate court determined that in the particular case at bench, there was no evidence of a gang-related motive in the underlying case. (Ibid.) Nor was the gang evidence probative of other material facts in the case, such as the defendant's mental state or intent. (Id. at p. 859.) Generally, " '[g]ang evidence should not be admitted at trial where its sole relevance is to show a defendant's criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense.' " (Ibid.) The court, however, noted that in certain circumstances, "testimony regarding the beliefs and practices of an organization may be relevant to explain the conduct of a member on a particular occasion." (Id. at p. 862.)
Similarly, in Albarran, the appellate court found that gang evidence was erroneously admitted after it determined the evidence was obviously prejudicial and irrelevant to the underlying charges. (Albarran, supra, 149 Cal.App.4th at pp. 227-228.) In reaching this conclusion, the appellate court noted that some of the gang evidence was unrelated to the underlying crime, because there was insufficient evidence to support the prosecution's argument that the shooting was done to gain respect for the gang. (Id. at p. 227.) Likewise, in Bojorquez, the appellate court held that some of the evidence presented by a gang expert—such as his testimony that gangs are motivated by profitable criminal activity and gang members protect each other by killing witnesses—should have been excluded, because it was irrelevant to the charged offenses. (Bojorquez, supra, 104 Cal.App.4th at pp. 344-345.)
In sum, Memory, Albarran, and Bojorquez merely underscore the general propositions we have already described: that evidence must be relevant to be admissible, and admissible evidence is subject to the limitations, including the limitations set forth under Evidence Code sections 352 and 1101, subdivision (b). The gang evidence at issue in Memory, Albarran, and Bojorquez was determined to be erroneously admitted, because the evidence had no underlying link to the crime and was admitted to demonstrate that the defendants had a criminal disposition to commit the charged acts. (Memory, supra, 182 Cal.App.4th at p. 859; Albarran, supra, 149 Cal.App.4th at pp. 227-228; Bojorquez, supra, 104 Cal.App.4th at p. 344.)
Even if we agree with defendant that his analogy to the admissibility of gang-related evidence applies, we note that the Supreme Court has upheld the admission of expert testimony on gangs, even when there is no underlying gang charge in the crime, when the proffered evidence is relevant to motive and identity. (See People v. Williams (1997) 16 Cal.4th 153.) In Williams, the defendant was charged with murder. (Id. at pp. 176-177.) The prosecution's theory of the crime was that the victim was clothed in a rival gang's colors and was thus shot by defendant because of gang violence. (Id. at pp. 193-194.) Thus, the Supreme Court determined that the trial court did not err in denying defendant's motion to exclude gang evidence, including expert testimony describing gang colors, behaviors, and area of influence, was relevant because it tended to prove defendant had a motive for killing. (Id. at p. 194.)
Unlike the aforementioned cases, Detective Galan's testimony about pimping and pandering was probative to the underlying crime. It was also properly admitted as expert testimony, which " 'is admissible on any subject "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." ' " (People v. Davis (2009) 46 Cal.4th 539, 605.) Galan's expert testimony provided background information that helped the jury understand the dynamics of the case. The prosecution's theory of the crime was that defendant and Holland had a pimp and prostitute relationship, and Holland communicated with defendant the night of the robbery, facilitating his presence at the hotel room. Galan's expert testimony was relevant to explain why defendant would book hotel rooms for Holland, why defendant would remain close by while Holland was in the room with Naveed, why Holland would text defendant, and why Holland's possessions were ultimately found in defendant's car. Furthermore, evidence of a pimp and prostitute relationship between defendant and Holland was relevant to Holland's bias, interest, and motives as a testifying witness. (Evid. Code, § 780, subd. (f).) Detective Galan's testimony about how prostitutes sometimes lie and take blame for their pimps helped the jury understand the prosecution's argument that Holland may be motivated to lie on defendant's behalf.
Having determined that Detective Galan's testimony was relevant evidence, we must next determine whether it should have been excluded under Evidence Code section 352. Defendant argues the evidence was highly prejudicial, because the People chose not to charge him with pimping yet were free to argue, in part based on Detective Galan's testimony, that he was in fact Holland's pimp. He insists the People's repeated argument on that point circumvented his constitutional protections, because the prosecutor was able to introduce minimal evidence of pimping without having to prove beyond a reasonable doubt each of the elements of the crime of pimping.
We do not believe the trial court abused its discretion under Evidence Code section 352 when it admitted Detective Galan's testimony. Again, Evidence Code section 1101, subdivision (b) permits evidence of uncharged misconduct unless it is used to prove the defendant had the disposition to commit the crime. Contrary to defendant's claim, Detective Galan's testimony was not admitted to prove defendant had a criminal disposition. Additionally, even though expert testimony about pimps and prostitutes was prejudicial, "[w]e will only disturb the trial court's exercise of discretion under Evidence Code section 352 'when the prejudicial effect of the evidence clearly outweighed its probative value.' [Citation.] A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.)
It was not outside the bounds of reason to conclude that the probative value of the expert testimony outweighed its prejudicial effect. As we already described, the expert testimony was probative; it provided crucial background information for the case and was relevant as to pertinent trial issues such as Holland's credibility as a witness. And Detective Galan's testimony, which provided general background information about pimping and pandering, was not significantly more prejudicial than the circumstances of the crime as described by Naveed—that he was robbed at gunpoint after he went to a hotel to meet a prostitute. (See People v. Carter (2005) 36 Cal.4th 1114, 1150 [uncharged misconduct not significantly more inflammatory than charged offenses].)
Detective Galan's expert testimony was also not the only evidence presented by the prosecution that purported to show defendant was Holland's pimp. At trial, Holland admitted she was a prostitute. The prosecution introduced evidence that Holland called a number that was associated with defendant numerous times, defendant often drove Holland around, and defendant booked hotels for Holland on a regular basis, including the hotel where the robbery took place and the hotel where the two were later arrested. Although there could have been an innocent explanation for defendant's behavior and his relationship with Holland, we see no reason why the People should be prohibited from arguing that a reasonable inference from the evidence presented was that defendant and Holland had a pimp and prostitute relationship. Defendant was free to argue to the contrary—which he did.
Defendant insists that because the prosecution had already presented evidence establishing a preexisting relationship between defendant and Holland, Detective Galan's testimony was cumulative and should have been excluded. However, the cumulative nature of evidence is but one factor to be considered by the trial court when it determines the admissibility of evidence under Evidence Code section 352. In this particular case, it was not unreasonable for the trial court to conclude that the additional information supplied by Detective Galan was not unnecessarily cumulative. Her testimony was not duplicative of Holland's, which established that she knew defendant; it instead provided context to help the jury understand the working dynamics between a pimp and a prostitute and provided background information about how these criminals typically operate. In sum, we find the trial court did not err when it concluded the expert testimony was admissible under Evidence Code section 352.
Next, defendant insists that Detective Galan's testimony should have been excluded as improper profile evidence. "A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime," and "[p]rofile evidence is generally inadmissible to prove guilt" because it is " ' "inherently prejudicial" ' " (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084 (Robbie)) due to " 'the potential of including innocent people as well as the guilty' " within the profile. (Id. at p. 1085.)
The California Supreme Court has described profile evidence as follows: "In [People v. Walkey (1986) 177 Cal.App.3d 268], the prosecution introduced expert evidence that the most important factor in the profile of a child abuser was that he had himself been abused as a child, elicited an admission from the defendant that he had been abused as a child, then argued that the defendant was guilty because he fit the profile of a child molester. [Citation.] The Court of Appeal held the evidence inadmissible and the prosecution's argument improper. [Citation.] [¶] In [Robbie, supra, 92 Cal.App.4th 1075], a prosecution expert testified that many rapists use only minimal force, and described in detail a scenario in which the rapist is in effect acting as if he thinks of the sexual acts as consensual. [Citation.] Not coincidentally, the behavior the expert described matched the testimony of the alleged victim. The expert conceded that the same behavior would be consistent with a truly consensual encounter. The Court of Appeal in Robbie characterized this evidence as inadmissible 'profile evidence.' It explained: '[The evidence] implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People's expert conceded here.' " (People v. Smith (2005) 35 Cal.4th 334, 357-358 (Smith).)
"Profile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt." (Smith, supra, 35 Cal.4th at p. 358.) "[P]rofile evidence is inherently prejudicial because it requires the jury to accept an erroneous starting point in its consideration of the evidence. We illustrate the problem by examining the syllogism underlying profile evidence: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior . . . ." (Robbie, supra, 92 Cal.App.4th at p. 1085.)
" 'Profile evidence,' however, is not a separate ground for excluding evidence; such evidence is inadmissible only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative." (Smith, supra, 35 Cal.4th at p. 357.) Again, we review issues of relevance and undue prejudice for an abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 474.)
Here, the trial court reasonably determined that Detective Galan's testimony was not inadmissible profile evidence. Robbie, supra, 92 Cal.App.4th at page 1084, upon which defendant relies, is distinguishable. In Robbie, the prosecution posed hypothetical questions to the expert that tracked the victim's description of the perpetrator's conduct, and the expert responded that the described behavior was typical of certain criminals. The Robbie court noted that "[t]he jury was invited to conclude that if [the] defendant engaged in the conduct described, he was indeed" guilty. (Id. at p. 1085.) In this case, the prosecutor did not pose hypothetical questions to Detective Galan that closely tracked or incorporated Naveed's description of defendant's conduct. Furthermore, Galan did not provide an overview of typical behavior or dynamics between a pimp or a prostitute and then opine based on her experience that defendant was indeed Holland's pimp. In fact, Galan offered no opinion as to whether defendant was Holland's pimp given the circumstances of the offense.
Defendant also relies on People v. Martinez (1992) 10 Cal.App.4th 1001. In Martinez, the defendant was arrested while driving a stolen truck. (Id. at p. 1003.) The defendant had been driving with a suspended driver's license, the truck's license plates had been replaced, and the certificate of registration had been forged. (Ibid.) The defendant insisted he did not know the car was stolen when he purchased it. (Ibid.) During his trial, two experts on auto theft rings were allowed to testify, and they described that some of the circumstances and operations of auto theft rings in the area matched the circumstances of the defendant's case, including the type of truck he drove, his driving route, and his denial of knowledge that the truck was stolen. (Id. at pp. 1004-1006.) The appellate court concluded these expert's testimonies amounted to improper and prejudicial profile evidence, because "the clear thrust of the evidence was to establish that defendant 'fit' a certain 'profile.' " (Id. at p. 1006.)
Unlike the expert testimony presented in Martinez, much of Detective Galan's expert testimony did not imply that defendant was guilty because his actions matched those of pimps in general. "Not all testimony concerning general patterns of criminal activity is 'profile' testimony." (People v. Lopez (1994) 21 Cal.App.4th 1551, 1555.) "[B]ackground testimony is not 'profile' evidence and does not specifically address the guilt or innocence of the defendant. Instead, it enables the jury to understand other evidence that does address guilt or innocence." (Id. at p. 1556.) In Lopez, expert testimony on the general organization of methamphetamine manufacturing rings was permitted as relevant background information, because its admission allowed the jury to understand the evidence in the case. Like the evidence contemplated in Lopez, Detective Galan's testimony about how pimps and prostitutes generally work together provided background information for the jury to understand the evidence adduced at trial.
Additionally, Detective Galan's testimony, such as her testimony providing an overview of the general process for "incall" prostitute services, was akin to testimony concerning a criminal modus operandi, and courts have routinely upheld admission of expert testimony on analogous subjects. (People v. Prince (2007) 40 Cal.4th 1179, 1223-1224; People v. Clay (1964) 227 Cal.App.2d 87 [testimony permitted that defendant's conduct followed the usual procedure followed when individuals commit the crime of till tapping]; People v. Martinez (2003) 113 Cal.App.4th 400, 413-414 [expert testimony that a gang will usually get revenge on gang members who "rat" on other gang members].)
Even if we assume that Detective Galan's testimony was profile evidence, profile evidence is inadmissible only if it is irrelevant, lacks a foundation, or is more prejudicial than probative. (Smith, supra, 35 Cal.4th at p. 357.) For example, in People v. Covarrubias (2011) 202 Cal.App.4th 1, the appellate court held expert testimony on structure and practices of drug trafficking organizations was erroneously admitted when the defendant was not charged with conspiracy and there was no evidence the defendant had a role in a drug trafficking organization. Unlike the expert testimony in Covarrubias, the expert testimony in this case was relevant and was more probative than prejudicial, as we have previously described. The evidence bore on Holland's credibility. Although defendant was not charged with pimping and pandering, there was evidence he may have been Holland's pimp, and evidence of his preexisting relationship with Holland was relevant to the issues raised at trial and did not lack a foundation. Thus, even if Galan's testimony was profile evidence, its admission was not erroneous, and reversal is not required.
2. Section 12022.53
While defendant's appeal was pending, the Legislature enacted Senate Bill No. 620. Senate Bill No. 620 amended section 12022.53, subdivision (h), which now reads: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." Senate Bill No. 620 took effect on January 1, 2018. Prior to its passage, trial courts did not have the discretion to strike or dismiss firearm enhancements imposed under section 12022.53.
After briefing in this case was completed, defendant submitted a supplemental brief arguing that Senate Bill No. 620 should be given retroactive effect, and we should remand the matter to the trial court so it may exercise its discretion in deciding whether to strike defendant's enhancement imposed under section 12022.53. The People agree that Senate Bill No. 620 retroactively applies in defendant's case, as his judgment is not yet final. In the interest of judicial economy, we accept the People's concession.
We find the rule articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada) applies. Whether a statute is prospective or retroactive is a matter of legislative intent. (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).) The "default rule" is that absent an express retroactivity provision, " 'a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application.' " (Ibid.; § 3.) In Estrada, the court created a "contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (Brown, supra, at p. 323, fn. omitted; Estrada, supra, at pp. 742-748.) However "[t]he rule in Estrada . . . is not implicated where the Legislature clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent." (People v. Nasalga (1996) 12 Cal.4th 784, 793.)
There is nothing in the statutory language that clearly signals the Legislature intended the amendments made by Senate Bill No. 620 to apply prospectively. Thus, we remand the matter to the trial court so it may exercise its discretion to strike the enhancement imposed under section 12022.53. (See People v. Francis (1969) 71 Cal.2d 66, 75-76.)
As defendant notes, his trial counsel erroneously argued to the trial court during the sentencing hearing that it should exercise its discretion under section 1385 to strike the enhancement imposed under section 12022.53. However, the People corrected defendant's counsel's assertion and informed the court it did not have the discretion at that time to dismiss the enhancement. The trial court did not express an opinion at that time as to whether it would have been inclined to strike the enhancement if it had the discretion to do so.
DISPOSITION
The judgment is reversed and remanded for resentencing for the limited purpose of allowing the trial court to consider whether the enhancement imposed under Penal Code section 12022.53 should be stricken under Penal Code section 1385.
/s/_________
Premo, J. WE CONCUR: /s/_________
Elia, Acting P.J. /s/_________
Grover, J.