Opinion
C080977
07-02-2018
THE PEOPLE, Plaintiff and Respondent, v. MARK RIDDICK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF132894)
Defendant Mark Riddick stopped his car when he saw a West Sacramento police officer posing as a prostitute. Defendant declined the officer's offer of a sex act, but he encouraged her to work for him on the Internet and in the Bay Area. A jury convicted defendant of pandering, and the trial court sentenced him to a term of four years.
Defendant now contends (1) he was improperly convicted of pandering because the officer was posing as a prostitute, (2) the evidence was insufficient to support a conviction for pandering, because there was no evidence of his specific intent to encourage the officer to become a prostitute, (3) the trial court abused its discretion by sentencing him to the middle term, and (4) his trial counsel provided ineffective assistance of counsel by not clarifying a potential mitigating factor for the trial court.
We conclude (1) defendant's argument that he was improperly convicted because the officer was posing as a prostitute has been rejected by the California Supreme Court, as defendant acknowledges, (2) there was sufficient evidence that defendant had the specific intent to encourage the officer to become a prostitute, (3) the trial court did not abuse its discretion by imposing the middle term, and (4) trial counsel's representation was not constitutionally deficient.
BACKGROUND
On July 2, 2013, Officer Alisha Slater of the West Sacramento Police Department, dressed similarly to how prostitutes in the area dress, was working undercover as a prostitute in front of a hotel on West Capitol Avenue. Defendant, driving a silver sedan, drove by the officer, nodded his head, and tapped his brakes. In the officer's experience and from talking to prostitutes, the officer knew that those actions meant that the person was interested. Defendant pulled over, and the officer approached defendant's car.
The officer spoke to defendant through the open driver's side window. She asked him if he was looking for her, and he replied that he was. She asked what he wanted. And he asked what she did. She offered a "blow job" for $20, but he said he was not looking for that. The officer started to walk away, but defendant continued to talk to her. He said it was "very hot" out there, meaning there were too many police officers in the area. The officer said she usually worked on Watt Avenue, and he acknowledged that good money can be made in that area.
Defendant asked the officer to work with him and make money with him. She asked how they could make money, and he said he could put her on the Internet or could take her to the Bay Area. He also said he would provide protection, which is what a pimp commonly offers to a prostitute. Defendant asked the officer if she used drugs, and, when she said she did, he told her not to use too much.
Defendant gave the officer his phone number. He told her to pack her clothes, and he would pick her up later. Then he departed.
About one hour later, the officer texted defendant and asked to buy some methamphetamine. He responded, asking where she was, and she texted that she was in her hotel room. Defendant texted, "You want me to come get you?" and "We need to talk." The officer texted, "Scared to get in with you. Don't want to get hurt, and, yes, call you in a few." Defendant texted, "You will be in good hands."
After several more texting exchanges, defendant returned to the area of the hotel, pulling into the gas station across the street. He was arrested there.
Defendant testified. He claimed he thought the officer was in distress. He encouraged her not to use drugs. When they talked about the Bay Area and the Internet, he said he did not ask for her to work for him. Defendant gave her his number because he wanted her to call him if she wanted to get out of that situation. Defendant testified: "So I work with kids, and I work with St. John's, and I was going to talk to her about St. John's where she can get in there, and she could get shelter."
A jury convicted defendant of pandering. (Pen. Code, § 266i, subd. (a)(2); undesignated statutory references are to the Penal Code.) The trial court sentenced defendant to the middle term of four years.
DISCUSSION
I
Defendant contends he cannot be convicted of pandering unless the victim was not already a prostitute, citing section 266i, subdivision (a)(2), which provides that a person is guilty of pandering if the person "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute." (Italics added.) Because the officer was undercover as a prostitute, defendant reasons, he was not guilty of pandering.
Defendant acknowledges, however, that the California Supreme Court rejected such an argument in People v. Zambia (2011) 51 Cal.4th 965 (Zambia), a case like this one involving a defendant who encouraged an undercover police officer. As the Supreme Court explained, "[t]he language of the pandering statute describes current conduct on the part of the defendant: inducing and encouraging. That current conduct is aimed at producing subsequent conduct by the target: that the target thereafter engage in acts of prostitution following a defendant's inducement or encouragement." (Id. at p. 975.) California decisions have long interpreted the phrase "to become a prostitute" to include not only recruiting someone to enter the prostitution trade for the first time, but also encouraging an existing prostitute, or an undercover officer, to work for the defendant or someone else under some type of new business relationship. (Id. at p. 973.) The Court concluded the proscribed activity of encouraging someone to become a prostitute, as set forth in section 266i, subdivision (a)(2), includes encouragement of someone who is already an active prostitute, or someone who is an undercover police officer. (Id. at p. 981.)
Here, the officer was working undercover as a prostitute. Defendant's contention lacks merit because we are bound by the decision in Zambia, supra, 51 Cal.4th 965. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)
II
Defendant next contends the evidence of pandering was insufficient to support his conviction because there was no substantial evidence of his specific intent to encourage the officer to become a prostitute and because he suffered from a mistake of fact, believing that the officer was a prostitute.
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 319-320 .) Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' (People v. Redmond (1969) 71 Cal.2d 745, 755.)" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We draw every reasonable inference in favor of the jury's verdict. (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.)
As we have already explained, the California Supreme Court held that the applicable statutory language includes encouragement of an undercover police officer. To encourage means to "urge, foster, stimulate, to give hope or help." (People v. Hashimoto (1976) 54 Cal.App.3d 862, 867.) In this case, because pandering is a specific intent crime, the evidence must establish that defendant intended to encourage the officer to work with him as a prostitute. (See Zambia, supra, 51 Cal.4th at pp. 973, 980-981.)
Defendant claims no reasonable inference can be drawn that he harbored the requisite specific intent. To the contrary, the evidence, including the reasonable inferences the jury could draw from the evidence, was sufficient to establish defendant specifically intended to encourage the officer to work with him as a prostitute.
Defendant encountered the officer on West Capitol Avenue, which is a known area of prostitution. The officer was dressed like a prostitute. Defendant signaled to the officer in a way that those who want a prostitute's services signal by nodding his head and tapping his car brakes. He stopped in a nearby parking lot and told the officer he was looking for her. While defendant turned down the officer's offer to perform a sex act, he asked her if she wanted to make money with him. Defendant mentioned two known ways of engaging in prostitution, soliciting business over the Internet and working in San Francisco. He also offered the officer protection, assuring her that she would be in good hands, and he later returned to pick up the officer. Considering this evidence in its entirety, the jury could reasonably infer defendant encouraged the officer to work with him as a prostitute in violation of section 266i, subdivision (a)(2).
Defendant nevertheless argues against the sufficiency of the evidence by emphasizing possible innocent inferences that the jury could have drawn from the evidence. For example, he argues he was only concerned that she was OK, she should not be working out there because of too much police presence, and she should not use drugs. He claims his intent was to rescue her and give her shelter at St. John's. But even if the evidence could support alternative inferences, we are bound by the standard of review on appeal, which we have already articulated. Under that standard, the evidence is sufficient to sustain the conviction.
Defendant argues that because the officer was not actually a prostitute, his "mistake of fact" disproved the required intent. He quotes the dissent in Zambia, supra, 51 Cal.4th at pages 986-987, for the proposition that a mistaken belief that an undercover officer is a prostitute establishes that defendant lacked the specific intent to encourage the officer to become a prostitute. However, as the majority explained in Zambia under similar circumstances, the targeted victim's actual occupation is not a determinative factor for conviction. (Zambia, supra, 51 Cal.4th at p. 980.) We are bound by the majority opinion, not the dissent. (Auto Equity, supra, 57 Cal.2d at p. 455.)
III
Defendant also contends the trial court abused its discretion by imposing the middle term for pandering.
We review a trial court's sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The trial court must not exercise its discretion arbitrarily or capriciously but must consider the offense, the offender, and the public interest. (Ibid.) It may rely on any aggravating and mitigating circumstances reasonably related to its sentencing decision (Sandoval, supra, 41 Cal.4th at p. 848; Cal. Rules of Court, rule 4.420) and need not explain its reasons for rejecting alleged mitigating circumstances (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583).
Here, the probation report recommended the upper term for pandering, defense counsel argued for the lower term, and the trial court imposed the middle term, analyzing the relevant factors. Concerning factors in aggravation, the trial court said the crime showed some, but not a large amount of, planning and sophistication. Defendant had numerous prior convictions, increasing in seriousness, but the last felony was over 25 years ago. He served a prior prison term, and he had a probation revocation in 1990. Concerning factors in mitigation, the trial court rejected defendant's claim that he was a passive participant. Although the officer initiated the interaction, she did not initiate the pandering element. The trial court also rejected the argument that defendant acted in response to great provocation. But it acknowledged defendant had not been convicted of crimes recently. Although he had a prior probation violation, his performance on probation was otherwise satisfactory. The trial court concluded the factors "substantially balance[d]" and imposed the middle term of four years.
Defendant argues that some of the aggravating factors cited by the trial court were inapplicable. For example, he claims there was no evidence of planning or sophistication. But defendant approached an individual he thought was a prostitute, declined a sex act, asked the officer to make money with him, said he could put her on the Internet or could take her to the Bay Area, said he would provide protection, provided her with his contact information, communicated with her by text, attempted to allay her fears, and arranged to meet with her. His comments and conduct indicate he gave thought to the interaction and knew how the prostitution trade worked. Concerning his prior crimes and prison term, defendant notes the trial court placed little weight on them because they were remote, but the trial court acknowledged as much.
Defendant further argues the trial court did not give sufficient weight to mitigating factors. He claims the trial court did not give sufficient weight to the officer's initiation of the interaction, but the trial court discussed that factor and noted that defendant went beyond what the officer proposed. Defendant also faults the trial court for not addressing the defense argument that the crime is unlikely to recur. But that is not self-evident from the record. Defendant seemed to know what he was doing in interacting with someone he thought was a prostitute. Finally, defendant notes that, in mitigation, the trial court found that his performance on probation had mostly been satisfactory, contradicting the aggravating factor that his performance on probation had been unsatisfactory.
Defendant concludes: "On any scale, the balance must tip heavily in favor of the mitigating factors." We disagree. The trial court properly found both aggravating factors and mitigating factors. Even if the aggravating factors were not strongly aggravating, they were sufficient to balance the mitigating factors, which were not as mitigating as defendant argues on appeal (such as his performance on probation, which was satisfactory except when it was not).
Unless mitigating or aggravating factors preponderate, the trial court generally will impose the middle term. The sentencing court has wide discretion to balance the aggravating and mitigating factors, qualitatively and quantitatively. (People v. Avalos, supra, 47 Cal.App.4th at pp. 1582-1583.) In this case, the trial court was well within its discretion to determine that neither the mitigating nor the aggravating factors justified deviation from the middle term.
IV
Defendant contends his trial counsel provided constitutionally deficient representation because he did not object to the trial court's application of a sentencing factor.
To demonstrate ineffective assistance of counsel, a defendant must show deficient representation and prejudice resulting from the deficient representation. The standard for deficiency is that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. The standard for prejudice is that there is a reasonable probability the defendant would have obtained a better result absent the deficiency. (People v. Avena (1996) 13 Cal.4th 394, 418; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L.Ed.2d 674, 693-694, 697-698].)
In a written statement, defense counsel argued in mitigation that the crime was the result of unusual circumstances unlikely to recur. Defendant now claims the trial court misunderstood the argument as one of provocation rather than the unlikelihood of recurrence, and he faults trial counsel for not disabusing the trial court of the misunderstanding.
As we have explained, however, the asserted mitigating factor is not as strong as defendant now suggests because, from the way defendant committed the crime, it could reasonably be inferred that he was familiar with prostitution and pandering, and there is no basis in the record to presume the crime is unlikely to recur. Because the evidence did not support defendant's asserted mitigating factor, trial counsel had no duty to defendant to repeat the argument at sentencing. Therefore, trial counsel's performance did not fall below an objective standard of reasonableness under prevailing professional norms and there was no prejudice.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, Acting P. J. We concur: /S/_________
MURRAY, J. /S/_________
RENNER, J.