Opinion
F076088
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO VERDE, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F16904045)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Alfredo Verde of human trafficking of a minor for a commercial sex act, finding true that this offense involved force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury (the enhancement allegation) (Pen. Code, § 236.1, subd. (c)(2); count 1). Appellant was also convicted of a second count of human trafficking, which did not involve the enhancement allegation (§ 236.1, subd. (c)(1); count 2). In addition, the jury convicted him of abduction of a minor for prostitution (§ 267; count 3); pandering by encouraging (§ 266i, subd. (a)(2); count 4); dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 5); and giving another person a large-capacity magazine (§ 32310, subd. (a); count 6). Appellant received an aggregate determinate prison sentence of eight years seven months, and a consecutive indeterminate term of 15 years to life.
All future statutory references are to the Penal Code unless otherwise noted.
In sections IV and VI through VIII of the Discussion, we provide additional details regarding appellant's sentence when we address specific sentencing issues.
Appellant raises seven issues in the present appeal. He argues that insufficient evidence supports both his conviction in count 5 for dissuading a witness and the jury's true finding in count 1 regarding the enhancement allegation for human trafficking. He asserts that his conviction for human trafficking in count 2 must be reversed, claiming the same evidence was used to convict him of both human trafficking counts. He contends the prosecutor committed misconduct, alleging the prosecutor elicited false trial testimony from a detective. He raises a claim of instructional error in count 6 (giving another person a large-capacity magazine). Finally, he asserts the trial court abused its discretion in not staying his sentences for abduction of a minor for prostitution and pandering by encouraging. We reject these claims. However, we agree with the parties that the trial court misunderstood its sentencing discretion in count 5 when it followed the erroneous recommendation from probation that a consecutive sentence was required for appellant's conviction of dissuading a witness. We reject respondent's assertion that resentencing would be an idle act. We also agree with the parties that the court miscalculated appellant's sentence in count 4 (pandering). We vacate appellant's sentence and remand for resentencing. In all other respects, we affirm the judgment.
BACKGROUND
We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.
I. J.A. Runs Away From Home.
In February 2016, the victim in this matter, J.A., ran away from home. She was 17 years old and attending a high school near Fresno, California. Her family tried to contact her, but they were unable to locate her. Sometime that month, her father filed a missing person's report with law enforcement.
II. The Altercation Outside A Nail Salon.
On April 23, 2016, J.A.'s older sister learned from a friend that J.A. was at a nail salon in Fresno. The sister contacted her father, informed him of J.A.'s location, and the sister drove to the salon. Outside that salon, an altercation ensued involving J.A., her sister, appellant, and eventually a security officer. We summarize the testimony about the altercation.
A. The relevant testimony from J.A.'s older sister.
J.A.'s sister informed the jury that, once she arrived at the nail salon, she saw J.A. inside by herself getting her nails done. According to the sister, she entered the salon and J.A. saw her. J.A. "just started shaking" and the sister informed J.A. that she was bringing J.A. home. J.A. got up and hugged her sister.
The sister testified at trial that J.A. "wasn't herself" in the salon and she seemed like she was under the influence of something. After they hugged, J.A. received a phone call, which she answered. During the call, J.A. "got really vicious." She started pushing her sister away, saying she had to go. Her sister continued to hug her, saying she would not let her go. The sister was crying. J.A. continued to push her sister away. They ended up outside the salon. The sister grabbed J.A. and shoved her against the salon glass. The sister kept her hands on either side of J.A.'s body. J.A. kept saying, "Please let me go." The sister called for help, saying that J.A. was a minor and the sister was trying to bring her home.
The salon owner came out and tried to help. Around this time, a vehicle pulled up very fast in the parking lot, causing its tires to screech. Appellant got out of the vehicle, and he approached J.A. and her sister. Appellant said, "let her go." The sister testified that appellant was screaming at her. The sister continued to hold J.A., and she yelled back that she was "not letting her go."
Appellant began trying to pull the sister's arms away from J.A. The sister testified that J.A. "seemed scared." Appellant said, "Fuckin' let her go now." The sister hugged J.A., and appellant began bending the sister's fingers back, which was painful. The sister let J.A. go at that point. Appellant told J.A. to run, and J.A. ran toward appellant's vehicle. The sister ran after J.A., saying she wanted J.A. home. Appellant ran after them, and he kept telling J.A. to run. The sister caught up to J.A. and pulled her hair. J.A. fell down and the sister got on top of her. Appellant tried pulling the sister away, repeatedly saying, "Let her fuckin' go now."
J.A. asked her sister to let her go. According to the sister's trial testimony, J.A. seemed scared. The sister yelled that she would not let J.A. go because she knew what appellant is "doing to you." While on the ground, the sister yelled at appellant, "I know what you're doing. She's a minor. She's coming home with me today."
At trial, J.A.'s sister testified that, before the encounter in the nail salon parking lot, she knew appellant. She said she recognized him when he drove up. The sister also told the jury that she had discovered pictures of J.A. on a website called "Backpage" and J.A. was wearing a bra and underwear. The sister testified that, before this encounter, J.A. had sent her messages through social media. Based on J.A.'s messages, the sister testified that she had known appellant was helping J.A. place pictures on Backpage.
Appellant struck the sister twice on the back of her head with a fist. He said, "You're going to fuckin' let her go now." J.A. told appellant to stop. After being struck, the sister felt weak, but she said she was not going to let go of J.A.
Appellant walked towards his vehicle. According to the sister's trial testimony, appellant reached into his vehicle and he picked up a black handgun from underneath the driver's seat. After picking it up, however, he then put the gun down. He looked at J.A. and the sister, he yelled, "Fuck[,]" and he drove off in his vehicle. Around the time appellant drove away, the sister saw a security officer running towards the scene.
At trial, a police officer testified for the defense. According to this police officer, J.A.'s sister had reported that appellant had removed a silver (as opposed to black) colored handgun from underneath the driver's seat before putting it back. The officer also interviewed the security officer, who denied seeing any weapons during this altercation.
B. The relevant testimony from the security officer.
At trial, the security officer testified that he saw the altercation near the nail salon. At first, he saw that an older sister had detained her younger sister by putting her arms around her and sitting down on the ground holding her. The security officer called the police. A vehicle pulled up and a man jumped out. All three individuals began to "scream and yell" at each other. The man was trying to grab the younger sister by the arm and he started pulling her. The man told the younger sister to get into the vehicle. The older sister told the man that the younger sister was going nowhere, and that the police were on the way. The security officer, along with some local employees, tried to break up the altercation. The younger sister ran away, and the older sister pursued her. The man in the vehicle chased them in his vehicle. The man got out of the vehicle, and he grabbed the younger sister. The older sister tried to intervene, and the man "proceeded to slug the older sister in the face." The security officer ran towards them. Through his phone, the security officer informed law enforcement that the man had punched the older sister, and the security officer went to detain the man. The security officer testified that he tried to grab the man, who "shook [him] off," and the man jumped in his vehicle and sped away. The man almost hit the security officer as he drove away.
III. J.A. Leaves Home Again Shortly After The Nail Salon Incident.
After appellant fled from the parking lot, J.A.'s sister got up and J.A. began complaining that she could not breathe. J.A. was crying, and she stood up. At some point, J.A. ran from the parking lot. Police arrived at the scene, and they detained J.A. a short distance away. J.A. was transported to the hospital that day by ambulance. Later that night, she was released from the hospital, and J.A.'s father brought her home. During that night, however, J.A. left her parents' home again.
IV. J.A.'s Family Has Sporadic Contact With J.A.
During the times J.A. was away from home, she had sporadic contact with her mother via telephone calls and with her sister through social media. On or about June 21, 2016, J.A. called her mother. J.A. told her mom that she wanted to come home. Her mother testified at trial that J.A. "sounded scared" and nervous. J.A. sounded like she was crying. Her mother asked her to provide an address, so she could pick her up. J.A. said she would call her mom back later "once I get my clothes together so that I can leave." Her mother told the jury that J.A. had called her several other times prior to this call. Each time J.A. had called, she had been in the same emotional state and had said she wanted to come home.
On June 22, 2016, J.A.'s family created a ruse in an attempt to contact her. A family friend called J.A. using a telephone number that appeared on an advertisement on the Internet. J.A. answered. The call was on speakerphone and J.A.'s sister recognized J.A.'s voice. A "date" was set at a particular motel room. J.A.'s father, sister and the family friend waited in that room for her. They notified law enforcement about their plan. Hours later, however, J.A. canceled the date through a text message.
V. Appellant Is Arrested With J.A. In His Vehicle.
On or about the same day the family tried to set a "date" with J.A., her sister received an anonymous message through a social media account. The message disclosed J.A.'s location, and the family provided that address to police. J.A.'s parents went to the address. They spotted appellant and J.A. in a vehicle, and they followed that vehicle. J.A.'s parents alerted authorities, who stopped the vehicle. Authorities took appellant into custody.
Inside appellant's vehicle, police recovered a handgun inside J.A.'s purse. The handgun had a magazine that held 15 rounds of ammunition. Police also found a flyer that J.A.'s father had made regarding J.A.'s status as a runaway. A condom was on the passenger seat. Letters were recovered from the vehicle that were in appellant's name. Inside the trunk, another purse was located. Police determined that this second purse belonged to a woman named "Molly," whom police believed was another victim in this matter.
Molly was not involved in this trial.
At the scene, J.A. informed detective David Fries that, when appellant was pulled over, he put the gun into her purse. Appellant had told her that nothing would happen to her. Law enforcement tested this gun for fingerprints. No fingerprints were discovered on it.
VI. The Body Cam Recording On The Night Appellant Is Arrested.
When appellant was taken into custody on June 22, 2016, a police officer was wearing a body camera. This camera recorded some of J.A.'s spontaneous statements at the scene. At trial, this recording was moved into evidence and played for the jury.
During this recording, J.A. asked if it was okay to speak with her father, but she was told to wait. She repeatedly asks her father, "What the fuck is going on?" She says, "What the fuck dad you got me into this deep ass (unintelligible). What the fuck dad?"
J.A. asked an officer if appellant was taken to jail. The officer answered that appellant was "probably" taken to jail. The officer asked if J.A. was worried about appellant. J.A. said, "No I don't want to (unintelligible)—I just don't—I just don't want paperwork on me." The officer said it sounded like appellant was keeping her against her will. J.A. denied that she was being held against her will. She said she was willing to go home but "I don't want to testify against him." She denied being scared of appellant, and she denied that he did anything to her, and she reiterated that she did not want to testify against him. She said this situation "put me in a bad position." When asked to explain, she said, "Like, I'm not going to be able to walk on the street comfortable no more." When asked why, she said appellant "is a hood nigga (unintelligible) and it will get the word out there that I through [sic] him under the bus on this—I don't want to testify." She said her father was "putting me in this position that I don't know what to do."
At trial, Fries explained that the term "paperwork" meant somebody had "snitched" or given a statement to police.
VII. Cell Phones Link Appellant To J.A.'s Prostitution.
Inside the trunk of appellant's vehicle, law enforcement recovered contracts for cell phones. Two contracts, People's exhibits 38 and 40, were in appellant's name. Another contract, People's exhibit 39, was in J.A.'s name, and her contract listed the same address as was listed for appellant in his contract (exhibit 38). Two of these contracts (exhibits 38 and 39) were started on April 24, 2016 (the day after the incident at the nail salon). In reviewing J.A.'s cell phone, Fries discovered that she had appellant's phone number listed in her contacts, and her phone identified appellant as "Daddy Blessem." At trial, Fries told the jury that "daddy" is a very common term for a pimp, and a pimp will require his girls to use that name.
During his investigation, Fries found numerous prostitution advertisements on the Internet that listed phone numbers linked to appellant's and J.A.'s phones. Numerous text messages between J.A. and appellant were recovered from J.A.'s phone. The messages related to J.A.'s acts of prostitution, including prices and specific incidents with customers. In one exchange, J.A. texted appellant that she was with a customer and the condom broke. She texted appellant that the customer "won't let me leave." Appellant replied, "Well tell him you'll jack him off."
After appellant was arrested, law enforcement recovered a cell phone in the center console of his vehicle, but it did not work. Based on certain statements that appellant made in some of his recorded jail conversations, Fries determined that appellant had destroyed his own cell phone by placing it inside a cup of syrup located inside his car. During his trial testimony, appellant initially denied having any corn syrup in his vehicle, but then stated, "I didn't have an ashtray. I used [the cup of syrup] like a little ashtray."
VIII. J.A.'s Interview With Fries.
After appellant was arrested, Fries interviewed J.A. at a police station. J.A.'s interview was recorded. At trial, the recording was moved into evidence and it was played for the jury. At trial, Fries stated that J.A. was very emotional during her interview with him, and she appeared "very afraid." He said she cried at times. At one point, she threw up in a trash can. According to Fries, she had said she was nervous and scared about informing law enforcement about everything.
J.A. told Fries that she had met appellant while she was still living at home. They had initially just been friends. She would tell him her problems, and she started counting on him. If she needed money, he would just give it to her. When she ran away from home, she called appellant because she had nowhere to go.
Appellant told her about "working." He had other girls working for him at the time, including Molly. Appellant initially told her, "I helped you out, so you should help me out ...." Appellant told J.A. that he does not have girlfriends, just "hos." She said that "I already knew what I had got myself into. And at that time, I thought it was just like—well, he has been paying stuff for me. And then by saying no, what am I—what's gonna [sic] happen?" She told Fries that she was not scared of appellant, but "I already knew what he was capable of." He would be "mad" sometimes and she saw "how he would react." Appellant would "snap" and she stated, "I necessarily wouldn't wanna [sic] disagree with him."
J.A. explained that Molly showed her how to place advertisements for prostitution. J.A. would use her cell phone to place the ads, which appeared on a website called "Backpage." Appellant would pay for the ads on Backpage using Bitcoins, and he would then direct her to upload the information to the website. J.A. denied knowing how to make such ads before meeting appellant. She denied knowing about prostitution before meeting appellant. She said that it was appellant and Molly who taught her how to talk to customers and how much to charge. According to J.A., appellant was always around, and he took her to all of her dates. Appellant always had a gun. She never saw him use the gun, and he told her he had it for protection.
At trial, Fries explained that historically websites took credit cards. The credit card companies, however, stopped their involvement with Backpage. As a result, Backpage offered ads for free but then it "figured out a way to go to Bitcoin, which is an electronic currency that's untraceable[.]" In order to now place an ad on Backpage for an escort service, a person needs "some type of Bitcoin vendor."
J.A. told Fries that she charged $300 for "just sex." If business was slow, however, she would charge as low as $100 for sex. She never provided oral copulation.
J.A. denied that any of her pictures were ever used in the ads. Instead, appellant used fake pictures because he knew she was underage and 17 years old. She admitted, however, that he took pictures of her while she was in her underwear, and she did not know what he did with those pictures. She said she never worked as a prostitute on the streets.
J.A. told Fries that she wanted police to tell appellant that she "got locked up." She did not want appellant "getting back to me on my family 'cause I know how far the game is. I learned." She denied that appellant ever threatened her. However, she recalled that appellant told her that if she snitched, she could not come back, and everybody would find out and be mad. She told Fries that, when appellant told her this, she knew if she said anything it would get linked back to her.
J.A. knew that appellant was a Bulldog gang member. It was her understanding that appellant knew she was 17 years old. She worked every day, and appellant would get "mad" or "upset" if she did not make money. When upset, appellant would "[s]tart bitchin' " at her. She had six or seven "dates" on a good day and only one or two if it was a bad day. There was a rule that she could not talk to other pimps or other guys.
Appellant would give J.A. "lean" to drink. She told Fries that she went to the hospital following the incident near the nail salon because she had consumed lean and her heart rate was too fast. She said she stopped drinking lean because it made her sleep too much. Instead, she would smoke a blunt before a date.
At trial, Fries explained that "lean" is a "Promethazine cough syrup" with codeine which is often mixed with a syrup or punch. Lean provides "a calming kind of relaxed feeling."
J.A. explained that they used different cell phones to place the ads, and they would change the pictures online to attract new customers. At various times they had traveled and worked in Fresno, Los Angeles, and Seattle, Washington. They often stayed in hotels, which were not rented in appellant's name. They sometimes stayed at a residence belonging to appellant's friend.
J.A. told the detective that, after she went back home after the hospital, appellant "knew" she was home and he came to pick her up. She had called him. "And I had told him. I was like, 'No, I'm at home.' It was like, 'I'm good. I can't, you know, I can't leave right now just what's going on.' What did he do? Starts going off on me, started telling me stuff over the phone. I get scared."
J.A. clarified what appellant told her. " 'Wha- why would you do this to me? And I'm a go get you. I don't care what you say,' type of bullshit. 'I know where you live. I know where you're at.' So I just took another-I took it as a threat. I really did 'cause I was like, 'You're telling me,' I tried calling him to tell him like, 'I'm good.' " J.A. confirmed for the detective that she meant "I'm done" when she had this conversation with appellant. She said, "I got pulled back. I'm just really scared this is gonna [sic] fall back on me."
At trial, Fries testified that, when he spoke with J.A., she informed him that appellant had threatened that "he would kill her." Throughout portions of his opening brief, appellant takes issue with this aspect of Fries's testimony. Appellant points out that J.A. never made such a statement during the recorded portions of her discussions with police. He asks that we disregard this testimony when we review whether substantial evidence supports the jury's true finding for the enhancement allegation in count 1. He also claims that the prosecutor committed misconduct in failing to correct Fries's testimony. Our independent review of the record confirms that J.A. never made such a statement during the recorded portions of her discussions with police. We analyze this disputed testimony in greater detail in sections II and III of the Discussion below.
J.A. said that only appellant had access to a vehicle. When J.A. was working, all of the money went to him, and he would never give J.A. any money. He would buy her what she needed. She would text him when she was with a trick. She called appellant "Daddy Blessem" when they texted. She could not leave a date without money. She did not know what would happen if she did not get the money, but Molly had experienced that before, and he would yell at her. She would give appellant the money right away as soon as he picked her up. He would drive her to all of her dates. She said that, at the time of her interview with Fries, her most recent commercial sex act had occurred the "day before yesterday." Appellant drove her to complete that sex act, which occurred with a 21-year-old university student.
J.A. stated that, after the incident at the nail salon, appellant got rid of his vehicle. She believed he had traded it in. She also explained that the term "paperwork" meant someone would get a "beating" because they were "a snitch basically."
IX. Appellant's Recorded Conversations From Jail.
At trial, the prosecution introduced into evidence numerous recordings of conversations appellant had while in jail. We summarize the relevant portions of four recordings.
In People's exhibit 3, appellant receives information from an unidentified woman. The woman relays messages from another female, who appears to be J.A. Appellant instructs the first woman to message J.A. on social media and tell her "I got paperwork." The woman indicates that she has messaged J.A., who responded that she (J.A.) will not testify against him.
In People's exhibit 4, appellant speaks with a woman whom he calls Cathy. Another unidentified woman joins the conversation. A message is relayed to appellant that another unidentified female "really likes you" and this other female wants to know what appellant wants her to do. This other female said, "I already gave money to put on your books and what do you want me to do plus I'm—I'm not gonna [sic] let all the time fall on you. I love you at the end of the day." During the conversation, appellant refers to "that girl" as the number one star on the team.
At trial, Fries explained that the "star of the team" referred to the number one moneymaker among a pimp's group of prostitutes.
In People's exhibit 7, an unidentified woman asks appellant if somebody snitched. Appellant replies, "We got set up." He refers to "the bitch." Referring to the pending criminal charges against him, appellant says, "I need all of 'em to drop except the gun ones. I'll take that."
In People's exhibit 90, appellant speaks with an unidentified female. The woman says appellant does not have to worry about another unnamed female. Appellant replies that he has all of his paperwork. The woman says that appellant can give her "the green light." Appellant says he will not give a green light because "everything could be fixed."
At trial, Fries explained that a "green light" means a person is subject to an assault.
X. Appellant's Rap Video.
At trial, a rap video (People's exhibit 9) was introduced into evidence and played for the jury. This video had been uploaded to YouTube on June 28, 2016. In the video, appellant is seen performing with another male. Appellant is holding a black handgun with an extended clip that appears to hold 30 rounds. A cough syrup bottle is visible.
Fries informed the jury that cough syrup is a common street drug known as "lean." It has a calming effect. J.A. had informed Fries that appellant had provided her with this drink.
According to the lyrics in the rap song, appellant was "going to break another bitch." Fries explained that this meant turning a woman into a prostitute. The lyrics also referred to a "16 letter man[,]" which Fries explained referred to the letter P and was short for a pimp. The lyrics referenced appellant's nickname of "Blessem" and it suggested that appellant was shooting a gun.
XI. After Being Recovered, J.A. Provides Money To The Mother Of Appellant's Child.
At trial, J.A's sister testified that, after J.A. was recovered by law enforcement, they began to live together in an apartment. A woman named Cathy regularly called J.A. and visited her multiple times at their apartment complex. J.A.'s sister testified that it appeared like J.A. "had no choice" but to speak with Cathy. At their apartment complex, Cathy would meet J.A. on the side of the complex near a trash can. J.A. would appear to give Cathy money. J.A.'s sister told the jury that she believed Cathy was appellant's sister. A photograph of Cathy (People's exhibit 88) was moved into evidence, and the sister confirmed that this was the person who met with J.A. after appellant was arrested.
At trial, the parties stipulated that the person depicted in People's exhibit 88 is the mother of appellant's child. J.A.'s sister testified that she saw Cathy come and get money from J.A. more than three times. It appeared to the sister that J.A. did not want to give the money to Cathy.
XII. J.A.'s Trial Testimony.
At trial, J.A. admitted that she had worked as a prostitute. In contrast to her statements to police, however, she testified that appellant was not involved in her prostitution. Instead, he was only a friend and she knew him just by his first name. She admitted, however, that she had heard people call him Blessem. She denied that appellant ever assisted her financially after she ran away. She denied that appellant and Molly showed her how to place online ads for prostitution. Instead, she claimed that she placed her own ads for prostitution using money borrowed from friends. When asked about Bitcoin, she claimed she also used this digital money to place her ads. She claimed that she had learned how to place her ads from "friends" who were already "doing this." She testified that she used ride sharing to go to her dates. She denied ever giving appellant money after a date.
Regarding the incident near the nail salon, J.A. testified that her sister walked in and she tried to yank her outside. It became physical. J.A. denied that she was in contact with appellant at that time. Instead, she was working alone as a prostitute. Appellant showed up and tried to break up the altercation that occurred between her and her sister. According to J.A., appellant did not punch her sister. J.A. did not see him run to his vehicle to get a gun. She claimed she went to the hospital that night because she was out of breath. She denied that appellant gave her lean to drink, but she admitted that she had consumed that drink in the past.
After being released from the hospital, J.A. said she went home and then left that night after packing her stuff. She denied calling and talking to appellant that night. She denied telling appellant that she no longer wanted to be in prostitution. She claimed that she left her parents' home on her own and she stayed with a female friend. According to J.A., she had no contact with appellant at that point. She testified that she called her mother about once a week, but she denied remembering calling her mother on June 21, 2016, crying and saying she wanted to come home.
J.A. testified that, on the night appellant was arrested, she had met appellant at a friend's party. She denied that appellant ever threatened her or her family. She admitted knowing that appellant was a gang member, but she denied telling Fries that she was afraid of appellant because he was always armed with a gun. She denied telling Fries that appellant kept a gun around his waist area. She testified that she lied during her police interview in order to go home. She denied knowing Cathy. She denied having contact with appellant through another person.
XIII. Appellant's Trial Testimony.
Appellant informed the jury that he used to work in a restaurant before turning his focus to making music and videos. He met J.A. in April 2016 at a house party. He also met Molly around 2014. Appellant thought Molly was a stripper. Appellant did not know whether or not J.A. was a runaway. Prior to the incident near the nail salon, appellant had contact with J.A. every two or three days over the phone.
Appellant testified that, in April 2016, J.A. asked him to take her to a nail salon and pick her up again in an hour. When he returned to pick her up, J.A. was fighting with another girl. Appellant told the jury that he did not know the other girl. He tried to separate them. He claimed he tried to loosen the other girl's grip by lifting her fingers because she was holding J.A. He punched the other girl because his adrenalin was running. J.A. was telling her, "Bitch, get off me. Let me go." Appellant knew a security guard was trying to call for backup and he felt scared so he drove away. He confirmed at trial that the security guard tried to grab him as he fled. Appellant denied having a gun that day.
Appellant denied being Molly's pimp. He denied ever threatening J.A. Regarding the text message about the customer's condom breaking, appellant said J.A. had called him earlier and said she was on a date. He denied knowing where she was when that incident happened. He testified that he texted her to see if she was okay. He said he was trying to give her advice to get "out of that situation."
Appellant denied ever renting hotel rooms or going out of state with J.A. He told the jury that, during the times he texted messages with J.A., he "didn't know for a fact" if she was a prostitute. However, he admitted that J.A. "always had money" and "large amounts of weed" and she did not have a job. He denied being a pimp or having a "stable" of girls. He said he had played a pimp in videos, but that did not mean it was true.
Regarding the use of his telephone number for an advertisement on Backpage, appellant explained that Molly had posted that ad using his phone. Her phone "was off" at that time. He denied posting ads on Backpage for prostitution. He said he had used that website to post "like me opening studios for models or for several reasons." He testified that the gun recovered from his vehicle when he was arrested did not belong to him.
DISCUSSION
I. Substantial Evidence Supports Appellant's Conviction In Count 5.
Appellant contends that insufficient evidence supports the jury's verdict in count 5, dissuading a witness or victim by force or threat (§ 136.1, subd. (c)(1)). He seeks reversal of this conviction.
A. The standard of review.
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
The standard of review is the same when a conviction is based primarily on circumstantial evidence. (People v. Clark (2016) 63 Cal.4th 522, 625.) "In a case built solely on circumstantial evidence, none of the individual pieces of evidence 'alone' is sufficient to convict. The sufficiency of the individual components, however, is not the test on appeal." (People v. Daya (1994) 29 Cal.App.4th 697, 708.) Rather, when reviewing the sufficiency of circumstantial evidence, we must consider such evidence cumulatively and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. (Id. at p. 709.)
B. Analysis.
Appellant contends no evidence reasonably established his intent to dissuade a victim or witness from reporting his crimes. He notes that, during closing argument, the prosecutor asserted that count 5 was based on appellant's intimidation of J.A. during the incident near the nail salon. According to the prosecutor, appellant attempted to prevent J.A. from reporting her victimization. Appellant claims it is "pure speculation" that his actions were directed towards witness intimidation. He argues it is just as likely he merely wanted J.A. to get into his vehicle. He further maintains that no evidence was presented that either J.A. or her sister intended to report his crimes to police. He relies on People v. Morris (1988) 46 Cal.3d 1 (Morris), disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6. Appellant's numerous assertions are without merit.
In relevant part, section 136.1 precludes a person from attempting to prevent or dissuade a witness or victim from reporting a crime. (§ 136.1, subd. (b)(1).) While attempting to dissuade, a felony occurs if a person "knowingly and maliciously" acts with force (or an express or implied threat of force or violence) upon a witness or victim. (Id. at subd. (c)(1).) Dissuading a witness from reporting a crime is a specific intent crime. (People v. Brenner (1992) 5 Cal.App.4th 335, 339.)
Appellant's reliance on Morris, supra, 46 Cal.3d 1, is misplaced. There, a murder victim was shot to death. Circumstantial evidence linked the defendant to the crime scene. After this murder, the defendant tried to use a credit card which had previously been loaned to the victim. (Id. at pp. 10-11.) In addition to murder, a jury convicted the defendant of robbery and found true a robbery-murder special-circumstance allegation. (Id. at p. 9.) The Supreme Court, however, determined it was impossible to know whether the defendant took the credit card from the victim before or after the murder. It was also impossible to know whether the taking was accomplished with force or fear. (Id. at p. 20.) The high court reversed the robbery conviction and the robbery-murder special-circumstance finding. (Id. at p. 21.)
Morris is distinguishable from the present matter. J.A. received a telephone call after her sister contacted her inside the nail salon. J.A.'s demeanor immediately changed. She told her sister that she had to go. When J.A.'s sister physically prevented her from leaving, appellant suddenly arrived in a vehicle and he intervened. Based on the timing of events, reasonable jurors could have inferred that appellant was watching J.A. when her sister entered the salon. The jurors could have reasonably determined it was appellant who called J.A. The jurors could have reasonably concluded that appellant took immediate steps to prevent J.A. from leaving his control and returning to her family.
J.A.'s sister yelled at appellant, telling him that J.A. was a minor. The sister yelled that she knew what he was doing with J.A. According to the security officer, J.A.'s sister was yelling that police were on the way, and J.A. was not leaving with appellant. The evidence establishes that, after J.A.'s sister warned appellant that police were coming, appellant assaulted the sister, including striking her twice on her head. A security officer ran towards them. Appellant fled in his vehicle when the security officer attempted to detain him.
We reject appellant's assertion that we should reverse this conviction because it is possible appellant merely attempted to get J.A. into his vehicle. To the contrary, reasonable jurors could have determined that, when he struck J.A.'s sister, appellant believed that law enforcement authorities were on their way. Reasonable jurors could have inferred that appellant used violence in an effort to prevent J.A. and/or her sister from disclosing his crimes.
Apart from the incident near the nail salon, other evidence reasonably and substantially supports the verdict in count 5. When law enforcement arrested appellant, J.A. made spontaneous statements which were recorded on the officer's body camera. J.A.'s comments overwhelmingly demonstrate that she was afraid to report her victimization. She said she did not want any "paperwork" on her. Although she claimed she was not afraid of appellant, she was also unwilling to testify against him. She said she was "in a bad position" and she could not walk comfortably on the streets anymore. She said appellant "is a hood nigga" and she complained that he "will get the word out" that she threw him under the bus.
At trial, Fries explained that the term "paperwork" meant somebody had "snitched" or given a statement to police. He testified that J.A. was very emotional during her interview with him, and she appeared "very afraid." He said she cried at times. At one point, she threw up in a trash can. According to Fries, she said she was nervous and scared about informing law enforcement about everything. During her interview, J.A. explained that the term "paperwork" meant someone would get a "beating" because they were "a snitch basically."
J.A. told Fries that she wanted police to tell appellant that she had been "locked up." She did not want appellant "getting back to me on my family" because she knew "how far the game is. I learned." She said she was not "necessarily" scared of appellant, but she knew what he was capable of doing. She had seen his reactions when he was mad. Although she had never seen him use a gun, appellant always had a gun and he was a Bulldog gang member.
During one of appellant's recorded jail conversations, he appears to communicate with J.A. through an unidentified woman. Appellant instructs the woman to message J.A. on social media and tell her "I got paperwork." The woman indicates that she has messaged J.A., who responded that she (J.A.) will not testify against him.
Unlike the situation in Morris, the reasonable inferences drawn from the circumstantial evidence conclusively demonstrate appellant's criminal intent. J.A. was clearly frightened and reluctant to report her victimization. The circumstantial evidence overwhelmingly suggests that appellant threatened her and attempted to dissuade her from reporting his crimes. As such, we will not reverse the conviction in count 5 because the circumstances reasonably justify the jury's conclusion. (People v. Ghobrial (2018) 5 Cal.5th 250, 278 [it is the jury, and not the appellate court, which must be convinced of appellant's guilt beyond a reasonable doubt].) Morris does not dictate reversal.
Based on this record, substantial evidence supports the jury's conviction in count 5. A reasonable jury could have found appellant guilty beyond any reasonable doubt. (See People v. Daya, supra, 29 Cal.App.4th at p. 709.) This evidence was reasonable, credible and of solid value. (See People v. D'Arcy, supra, 48 Cal.4th at p. 293.) As such, appellant's arguments regarding the insufficiency of the evidence in count 5 are without merit and this claim fails.
In section VII of the Discussion, we agree with the parties that the trial court misunderstood its sentencing discretion regarding this count. As we explain in greater detail later in this opinion, the court followed an erroneous recommendation from probation that indicated a consecutive sentence was mandated for appellant's conviction of dissuading a witness in count 5.
II. Substantial Evidence Supports The Enhancement Allegation In Count 1.
In count 1, the jury convicted appellant of human trafficking of a minor for a commercial sex act, finding true the enhancement allegation (§ 236.1, subd. (c)(2)). Appellant argues that insufficient evidence supports the jury's true finding.
A. The standard of review.
We have already set forth the standard of review. We must review the record in the light most favorable to the judgment looking for evidence that is reasonable, credible and of solid value from which a reasonable jury could make the necessary finding beyond a reasonable doubt. (People v. D'Arcy, supra, 48 Cal.4th at p. 293.)
B. Analysis.
Appellant contends he was non-violent, he cared about J.A., and he never threatened her. He further asserts that, when we review this claim, we must disregard certain testimony from Fries.
At trial, Fries claimed that, when he spoke with J.A., she informed him that appellant had threatened "he would kill her." Appellant asserts this testimony is unreliable, noting that J.A. never made such a comment during her recorded statements to law enforcement. He argues that Fries's disputed testimony "tainted" how the jury may have viewed the evidence, and he seeks reversal of the jury's true finding.
Our independent review of the record confirms that, in her recorded statements, J.A. never said that appellant had threatened to "kill her."
The parties dispute whether or not Fries provided false testimony. We need not, however, resolve this disagreement. Setting Fries's disputed testimony aside, substantial evidence conclusively and overwhelmingly supports the jury's true finding in count 1.
In section III of the Discussion, we analyze appellant's claim of prosecutorial misconduct stemming from Fries's disputed testimony. We conclude that appellant has forfeited his claim of misconduct and he does not establish ineffective assistance of counsel.
Pursuant to section 236.1, subdivision (c), a person is guilty of human trafficking when he or she "causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act," with the intent to effect or maintain a violation of certain enumerated crimes such as procurement (§ 266), pimping (§ 266h), pandering (§ 266i), abduction of a minor for prostitution (§ 267), and extortion (§ 518), among others. Under section 236.1, subdivision (c)(1), a person convicted of this statute may be punished in state prison with terms of five, eight or 12 years, and a fine. Under section 236.1, subdivision (c)(2), a person convicted of this statute may receive an indeterminate sentence of 15 years to life and a fine when the offense involves the enhancement allegation (i.e., force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person).
In this matter, the jury was instructed that, to be guilty of human trafficking in counts 1 and 2, appellant must have intended to violate section 266i, pandering.
The jury was properly instructed on the required elements for the enhancement allegation in count 1. The jury was told that appellant must have used "force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to [J.A.] or another person." The court defined these terms for the jury. The jurors were correctly told that, when deciding whether appellant used duress or coercion, they should consider all of the circumstances, including J.A.'s age, her relationship to appellant, and appellant's age.
The evidence conclusively demonstrates that, after the incident near the nail salon, appellant threatened J.A., which caused her to renew her prostitution. J.A. told Fries that, after she went home following discharge from the hospital, she spoke with appellant. She told appellant that she was "good." She indicated she could not leave home. Appellant, however, starting "going off" and she became "scared." He said he was going to get her, and he knew where she lived. J.A. informed Fries that she took this "as a threat." She had tried to tell appellant that she was "done" but she "got pulled back."
It is clear that, after threatening her, appellant resumed his prostitution scheme with J.A. They obtained new cell phones together on April 24, 2016 (the day after the incident at the nail salon). Their respective contracts listed the same address. Fries found online advertisements for prostitution linked to their respective cell phone numbers. J.A. had appellant's phone number listed in her contacts, and her phone identified appellant as "Daddy Blessem." J.A. told Fries that she had performed a commercial sex act just prior to appellant's arrest. Appellant had driven her to meet that customer, a 21-year-old university student.
At trial, Fries told the jury that "daddy" is a very common term for a pimp, and a pimp will require his girls to use that name.
J.A. was 17 years old when these events occurred, and appellant turned 21 years old during the time he was with her. About one day before appellant was arrested in this matter, J.A. called her mother. J.A. said she wanted to come home, and she was crying. When appellant was taken into custody, J.A. was very upset. As heard on the officer's body camera, she complained that she did not want any "paperwork" on her. She denied that appellant had held her against her will. However, she told police that she did not want to testify against him and she did not feel safe walking on the streets.
It is abundantly clear appellant knew that J.A. was a runaway teenager. A flyer was found in appellant's vehicle at the time of his arrest. This flyer, created by J.A.'s father, alerted that J.A. was missing from home. J.A. informed Fries that appellant used fake pictures to advertise her prostitution because he knew she was underage and 17 years old.
Based on this record, overwhelming substantial evidence supports the jury's true finding regarding the enhancement allegation in count 1. Setting Fries's disputed testimony aside, the evidence conclusively established that appellant used force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to J.A. or another person when he trafficked J.A. for commercial sex acts. (§ 236.1, subd. (c)(2).) This evidence was reasonable, credible and of solid value. (See People v. D'Arcy, supra, 48 Cal.4th at p. 293.) As such, appellant's arguments regarding the insufficiency of the evidence for the enhancement allegation in count 1 are without merit and this claim fails.
III. Appellant Has Forfeited His Claim Of Prosecutorial Misconduct And He Does Not Establish Ineffective Assistance Of Counsel.
Appellant contends that the prosecutor committed misconduct because she failed to correct the record or alert the court and jury about Fries's alleged false testimony. He claims that the prosecutor violated his rights to due process. He seeks reversal of his convictions in count 1 for aggravated human trafficking of a minor for a sex act (§ 236.1, subd. (c)(2)) and in count 3 for abduction of a minor for prostitution (§ 267).
Under section 267, abduction of a minor for purposes of prostitution occurs when a person "takes away any other person under the age of 18 years from the father, mother, guardian, or other person having the legal charge of the other person, without their consent, for the purposes of prostitution[.]"
Respondent argues that the prosecutor did not knowingly present false testimony. Respondent points out that, during his cross-examination, Fries admitted he was not perfect, and he makes mistakes. Fries also agreed with defense counsel that the jurors were free to listen to J.A.'s taped police interview and to the body camera recording and make their own determinations regarding what J.A. had stated. According to respondent, Fries's testimony was "equivocal" and he deferred to the recordings as being the most accurate indication of J.A.'s statements. In the alternative, respondent argues that appellant has forfeited his claim of prosecutorial misconduct by failing to raise it in the trial court, and appellant does not establish ineffective assistance of counsel. Respondent also asserts that any presumed error was harmless.
We need not resolve each of the disputes surrounding this testimony or the prosecutor's alleged omissions. Instead, we agree with respondent that appellant has forfeited this claim, and he does not establish ineffective assistance of counsel.
A. Appellant has forfeited his claim of prosecutorial misconduct.
As a rule, a claim of prosecutorial misconduct is forfeited if the defense fails to object and request an admonition to cure any harm. (People v. Centeno (2014) 60 Cal.4th 659, 674; People v. Tully (2012) 54 Cal.4th 952, 1010.) The exception to this rule occurs only if an objection would have been futile or an admonition ineffective. (People v. Thomas (2012) 54 Cal.4th 908, 937.) As our high court has stated, "we see no reason to carve out an exception to the general rule that a defendant must object to misconduct at trial to raise the claim on appeal. [Citation.]" (People v. Cleveland (2004) 32 Cal.4th 704, 762 [addressing claim that the prosecutor improperly suggested the responsibility for a death verdict rested elsewhere].)
Appellant failed to object when Fries testified about appellant's alleged threat to kill J.A. Further, at no time did the defense raise an objection regarding alleged prosecutorial misconduct. As such, appellant has forfeited the present claim.
We reject appellant's assertion that, despite his failure to object, he has preserved this issue for appeal. Appellant cites Sivak v. Hardison (9th Cir. 2011) 658 F.3d 898, 909 for the proposition that a defendant cannot waive a prosecutor's ethical and constitutional obligations to protect the integrity of the court and judicial system. Appellant's reliance on Sivak is misplaced. We are not bound by decisions of the lower federal courts, even on questions of federal law. (People v. Avena (1996) 13 Cal.4th 394, 431; McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 297.) In any event, our Supreme Court has made it clear that appellant was required to object in the trial court to preserve this claim for appeal. (See People v. Centeno, supra, 60 Cal.4th at p. 674; People v. Tully, supra, 54 Cal.4th at p. 1010; People v. Cleveland, supra, 32 Cal.4th at p. 762.) In light of clear California authority, this claim is forfeited.
B. Appellant does not establish ineffective assistance of counsel.
To overcome forfeiture, appellant raises a claim of ineffective assistance of counsel.
Under the federal and state constitutions, a criminal defendant is entitled to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
1. Appellant does not establish that his counsel had no rational tactical reason for his omission.
Appellant claims that his trial counsel could have had no tactical reason for not raising a claim of misconduct. We disagree.
An appellate court is to defer to counsel's reasonable tactical decisions, and there is a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) An appellate court will reverse the conviction "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission." (People v. Fosselman (1983) 33 Cal.3d 572, 581.)
This record does not affirmatively disclose that defense counsel had no rational tactical purpose for his alleged omissions. During Fries's cross-examination, appellant's trial counsel challenged Fries's recollection of events. Defense counsel asked Fries if he was aware that J.A. never said during her interview that appellant had threatened to kill her. In response, Fries stated that J.A. must have made this comment during the body camera recording. Defense counsel elicited Fries's admission that he makes mistakes. Fries also agreed that the jurors were free to review J.A.'s recorded statements and make their own determinations.
During J.A.'s cross-examination, appellant's trial counsel asked her if appellant had ever threatened her. She denied it. She denied that she was ever afraid of him. She denied that she was afraid of appellant while testifying. Defense counsel specifically asked J.A. if appellant had ever threatened to kill her. She denied that.
During closing argument, the prosecutor never asserted that appellant had threatened to kill J.A., and the prosecutor never mentioned Fries's disputed testimony. Instead, the prosecutor argued that appellant threatened J.A.'s sister when she tried to take J.A. home from the nail salon. Appellant also threatened J.A. when she went home after the hospital and she tried to leave him. Appellant said he knew where she lived, and he was coming to get her.
During appellant's closing argument, his counsel acknowledged that J.A.'s trial testimony "was all over the place." Defense counsel, however, emphasized that J.A. was not scared of appellant. Defense counsel told the jury that J.A. "about fell out of the chair when I asked if [appellant] ever threatened to kill her like Detective Fries said was in one of the recorded interviews and it's not. No. Are you kidding. Not at all."
This record does not affirmatively disclose that defense counsel had no rational tactical purpose for his alleged failures. (See People v. Fosselman, supra, 33 Cal.3d at p. 581.) To the contrary, the prosecutor did not highlight this disputed testimony during her closing argument. The defense attempted to show that Fries's disputed testimony was false. Under these circumstances, defense counsel made a tactical decision, which appears reasonable. As such, we will defer to that choice, and we must presume that counsel's conduct fell within the range of reasonable professional assistance. (See People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) Accordingly, appellant has failed to establish that his counsel had no rational tactical purpose for his alleged omission, and this claim fails.
2. Appellant does not establish prejudice.
Appellant contends that Fries's disputed testimony was prejudicial. He asserts that this was the "only evidence" that he made a direct threat to J.A. We reject this argument.
To establish prejudice, it is not sufficient to show that the alleged errors may have had some conceivable effect on the trial's outcome. Instead, a defendant must demonstrate a "reasonable probability" that the result would have been different absent the alleged error. (People v. Williams (1997) 16 Cal.4th 153, 215.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
We have already concluded that, setting aside Fries's disputed testimony, the record overwhelmingly established that appellant threatened J.A. Moreover, during closing argument, the prosecutor did not rely on this disputed testimony. Defense counsel, however, challenged Fries's recollection of events and argued to the jury that J.A. was never afraid of appellant.
Based on this record, appellant has failed to demonstrate a "reasonable probability" that the result would have been different had his trial counsel alerted the court or the jury about the prosecutor's alleged misconduct. (See People v. Williams, supra, 16 Cal.4th at p. 215.) Apart from Fries's disputed testimony, the evidence conclusively established the enhancement allegation in count 1 regarding human trafficking (§ 236.1, subd. (c)(2)). The evidence also overwhelmingly demonstrated appellant's guilt in count 3 because he took J.A. away without her parents' consent for purposes of prostitution (§ 267). Our confidence in the outcome of this matter is not undermined. As such, appellant has failed to show the required prejudice to establish ineffective assistance of counsel, and this claim fails. (See Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Lucas, supra, 12 Cal.4th at p. 436.)
IV. We Will Not Reverse Appellant's Conviction In Count 2 Because It Was Based On Divisible Acts From His Conviction In Count 1.
In counts 1 and 2, the jury convicted appellant of human trafficking. Unlike the offense in count 1, the offense charged in count 2 did not involve the enhancement allegation. Appellant argues that his convictions in counts 1 and 2 were based on the same facts. He seeks reversal of his conviction in count 2.
A. Background.
Prior to sentencing, the probation officer recommended that the sentence in count 2 be stayed pursuant to section 654. According to the probation report, counts 1 and 2 were committed for the same intent and purpose and were part of one indivisible course of conduct. The trial court, however, declined to follow this recommendation. According to the court, appellant's two counts of human trafficking involved separate and distinct acts. In count 1, the court imposed an indeterminate term of 15 years to life in prison. In count 2, the court imposed a consecutive term of two years eight months (one-third the midterm of eight years).
B. The standard of review.
A defendant cannot be convicted of an offense and a necessarily included lesser offense when both are based on the same act. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) The statutory elements test is used to determine whether a defendant may be convicted of multiple charged offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1231.) Under that test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. (Id. at p. 1227.)
C. Analysis.
Appellant notes that, during closing argument, the prosecutor asserted that J.A. was emotional when she received the phone call while inside the nail salon. The prosecutor contended that J.A.'s reaction showed the fear which appellant had created. According to appellant, this indicates the aggravating circumstances had already occurred prior to the incident near the nail salon, making counts 1 and 2 indivisible. He argues the phone call which J.A. received at home was a mere continuation of the aggravated human trafficking that had already occurred. We disagree and conclude that counts 1 and 2 were based on divisible acts.
As an initial matter, we agree that human trafficking under section 236.1, subdivision (c)(1), is a lesser included offense to aggravated human trafficking under section 236.1, subdivision (c)(2). Both crimes occur when a defendant "causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act," with the intent to effect or maintain a violation of certain enumerated crimes such as pandering (§ 266i). (§ 236.1, subd. (c).) Aggravated human trafficking is present if the prosecution also proves the enhancement allegation (i.e., force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person). (§ 236.1, subd. (c)(2).) In short, a person cannot violate the aggravated form of human trafficking of a minor without also violating section 236.1, subdivision (c)(1).
Although human trafficking under section 236.1, subdivision (c)(1), is a lesser included offense to aggravated human trafficking, appellant is mistaken that his conviction in count 2 should be reversed. We reject appellant's suggestion that he committed aggravated human trafficking from the very start of his relationship with J.A. To the contrary, the evidence demonstrates that he first caused, induced, and/or persuaded J.A. to work as a prostitute. Later in their relationship, and especially after she returned home, he used fear and threats to encourage her continued prostitution.
J.A. told Fries that she initially had "a friendship" with appellant and she relied on him for emotional and financial support. She had known him for about a month before she ran away. It was appellant who first informed J.A. about working as a prostitute. According to J.A., appellant was "looking out for me" and he told her that he had helped her, and she should now help him. She stated that, when she started, she "already knew" what she had gotten herself into. She said appellant had "been paying stuff for me" and she felt uncomfortable saying no. She said she was not "necessarily" scared of appellant, but she knew what he was capable of doing. Appellant (and Molly) showed J.A. how to place the ads for sex, how to talk to the clients, and how much to charge. She denied ever seeing appellant use a gun or threaten anyone with it. She said appellant never threatened her, but he had told her a story that suggested a snitch gets in trouble for talking.
J.A. told Fries that all of her commercial sex acts were derived from the ads and she never worked on the streets. She worked every day when she was with appellant, and he drove her to all of her dates. She had to return from those encounters with money, and she gave appellant all of the money she earned.
On April 23, 2016, appellant physically tried to prevent J.A.'s sister from taking J.A. from him. Before appellant arrived on the scene, J.A. kept telling her sister to "let me go." Once appellant arrived, J.A.'s sister yelled that she knew what appellant was doing with J.A. At trial, J.A.'s sister testified that she had discovered pictures of J.A. on the Internet and J.A. was wearing a bra and underwear. The sister testified that, before this encounter, J.A. had sent her messages through social media. Based on J.A.'s messages, the sister testified that she had known appellant was helping J.A. place pictures on Backpage.
Appellant concedes a reasonable inference exists that J.A. was committing acts of prostitution before the incident near the nail salon. We agree. This record establishes that, prior to the incident near the nail salon, appellant had caused, induced or persuaded J.A. to engage in commercial sex acts. The record does not demonstrate that, at least at the very beginning, appellant relied on force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person to cause, induce or persuade J.A. to start her prostitution. Thus, when J.A. commenced her commercial sex acts, appellant committed human trafficking. (§ 236.1, subd. (c)(1).)
After the incident at the nail salon, however, it is clear that appellant used threats, fear, duress and/or coercion to cause or induce J.A. to resume her commercial sex acts. J.A. went home after she was discharged from the hospital. She spoke with appellant on the telephone. She said she was "done" and she did not want to work anymore. Appellant, however, threatened her. J.A. admitted to Fries that she was scared. Although she wanted to stop, she "got pulled back." About two months later, J.A. was with appellant in his vehicle when police stopped and arrested him. Based on the evidence from the cell phones, it is clear that appellant and J.A. resumed her prostitution shortly after he reacquired her in April.
Just prior to being recovered by law enforcement, J.A. had an emotional telephone call with her mother. She expressed her desire to come home. When appellant was taken into custody, J.A. was very upset and clearly frightened. She is heard on the officer's body camera saying that she would not testify against appellant, and she feared for her safety. She said she did not want to be accused of throwing him under the bus.
Based on this record, appellant's convictions in counts 1 and 2 were based on divisible acts. The evidence overwhelmingly established that, at the beginning of their relationship, appellant caused, induced or persuaded J.A. to engage in commercial sex acts. (§ 236.1, subd. (c)(1).) Sometime later, and especially after J.A. returned home, appellant used fear, violence, coercion, duress and/or threats to cause, induce or encourage J.A. to continue her commercial sex acts. (Id. at subd. (c)(2).) As such, although count 2 was a lesser included offense to count 1, appellant could be convicted of both offenses because they were not based on identical acts. (See People v. Sanchez, supra, 24 Cal.4th at p. 987.) Accordingly, we reject appellant's assertions that his conviction in count 2 must be reversed, and this claim fails.
V. Instructional Error Did Not Occur In Count 6.
In count 6, appellant was convicted of manufacturing, importing, selling, giving, or receiving a large-capacity magazine (§ 32310, subd. (a)). He raises a claim of instructional error, contending the jury was permitted to find him guilty based on mere possession of a large-capacity magazine, which was not an element of this crime at the time of his arrest.
It is undisputed that the magazine in question held more than the legal limit of 10 rounds, and, thus, qualified as large capacity. (§ 16740.) The jury was properly instructed on the definition of a large-capacity magazine.
A. Background.
To understand this claim, we summarize both the relevant change in the law and the jury instruction given in this matter.
1. The change in law.
When appellant committed these crimes in 2016, neither the word "possesses" nor any variation of that word appeared in former section 32310. That former statute stated that "any person in this state who manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, buys, or receives any large-capacity magazine is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170." (Former § 32310, subd. (a).)
Effective January 1, 2017, section 32310 was amended. Under the current law, a person who "legally possesses a large-capacity magazine" must dispose of it on or before July 1, 2017, through various enumerated ways. (§ 32310, subd. (c)(1)-(4); Senate Bill No. 1446 (Stats 2016, ch. 58, § 1).) Failure to dispose of such a magazine, regardless of the date it was acquired, results in various punishments. (§ 32310, subd. (b).)
2. The jury instruction in this matter.
For count 6, the court drafted a "special instruction" regarding appellant's alleged violation of section 32310, subdivision (a). The court properly defined a large-capacity magazine was one that could hold more than 10 rounds of ammunition. The court stated that appellant was guilty of this crime if the prosecution proved beyond a reasonable doubt that (1) appellant "gave, lent, bought, or received a large capacity magazine" and (2) he "actually knew" of its presence. The court explained that, "[t]o receive property means to take possession and control of it. Mere presence near or access to the property is not enough. Two or more people can possess the property at the same time. A person does not actually—have to actually hold or touch something to possess it. It is enough if the possession—if the person has control over it or the right to control it either personally or through another person." (Italics added.)
CALCRIM does not contain a specific form instruction pertaining to a large-capacity magazine.
B. The standard of review.
Instructional errors are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570; People v. Jandres (2014) 226 Cal.App.4th 340, 358.) We must ascertain the relevant law and determine whether the given instruction correctly stated it. (People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
C. Analysis.
Appellant contends that the trial court's instruction regarding count 6 "fundamentally misstated the elements of the crime." He argues that the court's special instruction permitted the jury to find him guilty based on mere possession, which was not an element at that time. We disagree that instructional error occurred.
Respondent maintains that appellant has forfeited the present claim due to a failure to object below. We decline to find forfeiture in this situation. A defendant may raise a claim of instructional error even in the absence of an objection if the error impacts the defendant's substantial rights. (§ 1259.) Because appellant contends that his substantial rights were violated, we will address the merits of this claim. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34.)
A defendant bears the burden to demonstrate a reasonable likelihood the jury misunderstood a particular instruction. (People v. Cross (2008) 45 Cal.4th 58, 67-68.) We cannot view the challenged instruction alone but must analyze the entire trial record, including the other instructions, the evidence, and the arguments from counsel, to determine if a reasonable likelihood exists the jury applied the instruction in an impermissible manner. (People v. Houston (2012) 54 Cal.4th 1186, 1229; People v. Nem (2003) 114 Cal.App.4th 160, 165.)
Here, it is undisputed that the handgun recovered from J.A.'s purse held a large-capacity magazine (i.e., 15 rounds). At the scene, J.A. informed Fries that, when appellant was pulled over, he put the gun into her purse. Appellant had told her that nothing would happen to her.
During closing argument, the prosecutor did not argue or even suggest that appellant was guilty in count 6 because he merely possessed this magazine. To the contrary, the prosecutor asserted that appellant was guilty because he gave J.A. the handgun when police pulled him over. The prosecutor's theory of guilt was proper under former section 32310, subdivision (a).
Although the court's instruction mentioned "possession" when defining what it meant to "receive" property, appellant has not demonstrated a reasonable likelihood the jurors understood that appellant could be guilty for mere possession of the magazine. Instead, the evidence overwhelmingly established that appellant gave this magazine to J.A., and the prosecutor used that as the basis to argue appellant's guilt. The instruction properly informed the jury of the required elements for guilt. We presume the jurors are "intelligent and capable of understanding and applying the court's instructions." (People v. Gonzales (2011) 51 Cal.4th 894, 940.)
Based on this record, it is not reasonably likely the jury applied this instruction in an impermissible manner. (People v. Houston, supra, 54 Cal.4th at p. 1229.) As such, instructional error did not occur. Accordingly, appellant's arguments are without merit and this claim fails.
In his reply brief, appellant cites People v. Guiton (1993) 4 Cal.4th 1116 and argues that his conviction in count 6 may have been based on a legally inadequate theory. We will not analyze this argument in depth. As an initial matter, appellant raised this specific argument for the first time in his reply brief. An appellate court will not entertain arguments made for the first time in a reply brief because it is unfair to the other party. (People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219.) In any event, instructional error did not occur in count 6 and it is clear that this conviction was not based on a legally inadequate theory.
VI. The Trial Court Did Not Abuse Its Sentencing Discretion When Failing To Stay The Sentences In Counts 3 And 4 Pursuant To Section 654.
In count 1, human trafficking of a minor for a commercial sex act (§ 236.1, subd. (c)(2)), the court imposed an indeterminate sentence of 15 years to life. In count 3, abduction of a minor for prostitution (§ 267), the court imposed a consecutive eight-month prison term. In count 4, pandering by encouraging (§ 266i, subd. (a)(2)), the court imposed a consecutive term of one year three months.
Appellant claims that the trial court erred when it failed to stay the sentences for his convictions in counts 3 and 4. He asserts his abduction and pandering convictions were indistinguishable from his convictions for human trafficking.
A. The standard of review.
"Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
B. Analysis.
Although a person may be convicted of more than one crime arising out of the same act or course of conduct, section 654 bars multiple punishments for the same criminal act or omission. (People v. Correa (2012) 54 Cal.4th 331, 337.) "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on another ground in People v. Correa, supra, 54 Cal.4th at p. 334.)
We examine the evidence and the parties' arguments regarding counts 3 and 4.
1. Appellant's conviction in count 3 (abduction) was based on a divisible act from his human trafficking (counts 1 and 2).
Appellant argues that his conviction for abduction of J.A. for purposes of prostitution (§ 267; count 3) cannot be separated from his human trafficking (counts 1 and 2). To establish an abuse of sentencing discretion, he cites this court's opinion in People v. Roberson (1988) 198 Cal.App.3d 860 (Roberson).
In Roberson, the defendant was convicted of numerous sexually-related offenses involving a victim who was younger than 14 years old. (Roberson, supra, 198 Cal.App.3d at pp. 862-863.) The defendant forced the victim to have sex with multiple men over a period of days. (Id. at pp. 863-866.) One such incident involved the victim being forced to have sex with three or four men on one particular day. Stemming from this incident, the defendant was convicted of both procurement of a child under the age of 14 for lewd and lascivious acts (§ 266j; count 10) and for lewd and lascivious conduct with a child under 14 by use of force, violence, duress, menace or fear (§ 288, subd. (b); count 11). The conviction for lewd and lascivious conduct was based on a complicity theory. (Roberson, at p. 871.)
On appeal, the defendant asserted his conviction in count 11 was based on the "procurement" in count 10. He argued that imposition of consecutive sentences on those counts constituted double punishment for the same act and violated section 654. This court agreed. (Roberson, supra, 198 Cal.App.3d at p. 871.) The Roberson court noted that section 654 applies in sexual offense cases "when one offense is committed as a means of committing another, facilitates commission of any other, or is incidental to commission of any other." (Roberson, supra, at p. 871.) The Roberson court determined that the men would not have had an opportunity to commit the sexual acts with the victim (count 11) had the defendant not provided her to them (count 10). (Ibid.) The matter was remanded for resentencing. (Id. at p. 872.)
Appellant argues that Roberson supports application of section 654 in the present matter. He contends he induced J.A. to leave home when he threatened her. He argues that her subsequent acts of prostitution would not have occurred without this taking. He maintains that his intent in both situations was to obtain money from her prostitution, requiring the sentence in count 3 to be stayed. We reject appellant's analysis and conclude that Roberson is distinguishable.
During closing argument, the prosecutor asserted that count 3 (abduction of a minor for prostitution) occurred when appellant threatened J.A. during their telephone conversation after she was released from the hospital. The prosecutor claimed that appellant used "improper solicitations and inducements" to take her.
Under section 267, abduction of a minor for purposes of prostitution occurs when a person "takes away any other person under the age of 18 years from the father, mother, guardian, or other person having the legal charge of the other person, without their consent, for the purpose of prostitution[.]" California has long held that the taking need not be by force. Instead, improper solicitations or inducements are sufficient. (People v. Demousset (1887) 71 Cal. 611, 613-614; People v. Marshall (1881) 59 Cal. 386, 388.)
Here, the jury was properly instructed that appellant was guilty in count 3 if he took away J.A. (who was a minor) from her mother or father without her parents' consent for the purpose of having her engage in acts of prostitution. Appellant is mistaken that his threats to J.A. established his guilt in this count. To the contrary, it was after this conversation when appellant made physical contact with J.A. and took her away without her parents' consent. In short, appellant did not violate section 267 when he threatened J.A.
The "inducements" necessary to take a minor away for purposes of prostitution are those made to a parent or legal guardian. (See People v. Demousset, supra, 71 Cal. at pp. 613-614; People v. Marshall, supra, 59 Cal. at p. 388.) It is immaterial if the minor victim willingly goes with the perpetrator because the crime occurs when the minor is taken from the person having lawful charge of him or her for purposes of prostitution. (People v. Demousset, supra, at pp. 614-615.)
Moreover, unlike the unique circumstances that occurred in Roberson, wherein the defendant procured the victim for lewd acts and then provided her to multiple men that same day, appellant exhibited clear divisible intents on different days. He abducted J.A. without her parents' consent for purposes of continued prostitution. Based on the cell phone evidence, it is clear that appellant resumed his advertising scheme with J.A. on or about April 24, 2016. After abducting her, he continued to cause, induce and/or persuade her to perform commercial sex acts. On June 22, 2016, J.A. was in his vehicle when law enforcement arrested him. She told Fries that, at the time of her interview, her most recent commercial sex act had occurred the "day before yesterday." Appellant had driven her to that date, which occurred with a 21-year-old university student. The evidence overwhelmingly established that appellant's abduction of J.A. was a separate criminal act from both his prior and subsequent acts of human trafficking. Roberson is factually distinguishable, and it does not establish an abuse of discretion in the present matter.
Finally, appellant is mistaken that, even if he held one overall objective, his sentence for the abduction conviction should be stayed under section 654. Appellant's offenses were committed on different occasions and they were temporally separated. He had the opportunity to reflect and renew his intent before committing the next crime. As a result, he may be punished for his separate criminal acts. (People v. Hicks (2017) 17 Cal.App.5th 496, 514.)
Based on this record, appellant's conviction for abduction of a minor for prostitution (count 3) was based on a divisible act from his convictions for human trafficking (counts 1 and 2). Appellant demonstrated separate criminal intents. (See Neal v. State of California, supra, 55 Cal.2d at p. 19.) Substantial evidence supports the trial court's sentencing determination. (See People v. Jones, supra, 103 Cal.App.4th at p. 1143.) Thus, section 654 does not bar punishment in count 3. Accordingly, appellant's arguments are without merit and this claim fails.
2. Appellant's conviction in count 4 (pandering) was based on divisible acts from his convictions for human trafficking (counts 1 and 2).
In counts 1 and 2, appellant was convicted of human trafficking. In count 4, appellant was convicted of pandering, which occurs when a person "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute." (§ 266i, subd. (a)(2).) When instructing on human trafficking, the court informed the jury that to prove appellant's guilt in these counts, the People had to establish beyond a reasonable doubt that: (1) appellant "caused, induced or persuaded" another person to engage in a commercial sex act; (2) when appellant acted, he intended to commit a violation of section 266i, pandering, (which was defined in a separate instruction); and (3) when appellant did so, the other person was under 18 years of age.
Appellant argues that, based on the jury instruction given in this matter, pandering was an element of the human trafficking charges in counts 1 and 2, and he could not have committed human trafficking without also committing pandering. He claims he held only one objective, i.e., having J.A. prostitute herself. He asserts that the human trafficking and pandering charges were based on an indivisible course of conduct. We disagree.
It was appellant who first informed J.A. about working as a prostitute. She denied knowing anything about prostitution before meeting him. Appellant, along with Molly, taught her how to speak with customers and how much to charge. They showed her how to place the ads for sex. J.A. explained that she used her cell phone to place the ads, which appeared on Backpage. Appellant would pay for the ads using Bitcoins, and he would notify J.A., who would upload the information to the website. She said that all of her prostitution activity came through these ads and she never worked on the streets.
It is clear that appellant used a device or scheme that caused, induced, persuaded or encouraged J.A. to become a prostitute. In short, he committed pandering. (§ 266i, subd. (a)(2).) After implementing his advertising scheme on the Internet, appellant then caused, induced, and/or persuaded J.A. to engage in the specific commercial sex acts which followed. In doing so, appellant acted with the specific intent to maintain his pandering. Thus, appellant was guilty of human trafficking of a minor. (§ 236.1, subd. (c)(1).)
Moreover, once J.A. went home, appellant threatened her. His threats encouraged her to resume her prostitution. After appellant abducted J.A., they continued the advertising scheme, and he continued to cause, induce, or persuade her to engage in commercial sex acts, with the intent to maintain his pandering. Because of his clear threat, appellant was also guilty of aggravated human trafficking. (§ 236.1, subd. (c)(2).)
Based on this record, substantial evidence supports the trial court's sentencing determination. (See People v. Jones, supra, 103 Cal.App.4th at p. 1143.) Appellant initially encouraged J.A. to become a prostitute, and he created and provided her with the advertising scheme. He then encouraged her to engage in specific commercial sex acts. After she returned home, he threatened her, which caused her to continue her commercial sex acts. Appellant's conduct established that he held more than one criminal objective. Thus, section 654 does not bar punishment for his conviction for pandering (count 4). Accordingly, appellant's arguments are without merit and this claim fails.
VII. The Trial Court Abused Its Sentencing Discretion In Count 5.
The parties agree, as do we, that the trial court misunderstood its sentencing discretion in count 5. In this count, appellant was convicted of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). He received a consecutive upper term sentence of four years.
At sentencing, the court stated its belief that a consecutive sentence was required. The prosecutor agreed with that assessment. The court's belief stemmed from the probation officer's report, which stated that section 1170.15 mandated a consecutive term for the conviction in count 5. This understanding was erroneous.
Under California's determinate sentencing law, when a trial court imposes consecutive terms for multiple felony offenses, the defendant receives an aggregate term consisting of the principal term (the felony with the greatest term of imprisonment, including enhancements), coupled with the remaining felonies, which are deemed the subordinate terms. (People v. Sasser (2015) 61 Cal.4th 1, 9.) The subordinate terms consist of one-third of the middle term of imprisonment for those offenses, plus one-third of the term imposed for any specific enhancements. (Ibid.)
The crime of dissuading a witness, however, is an exception. Under section 1170.15, "when a defendant is convicted of a felony, and also convicted of a second felony for a violation of section 136.1 (dissuading a witness) involving a witness to the first felony, 'the subordinate term for each consecutive offense' of dissuading a witness must be the full middle term for the dissuading a witness count plus any enhancements applicable to that count." (People v. Woodworth (2016) 245 Cal.App.4th 1473, 1478-1479.)
Our Court of Appeal has determined that, under its plain language, "section 1170.15 does not mandate consecutive sentences." (People v. Woodworth, supra, 245 Cal.App.4th at p. 1479.) Instead, a trial court shall "impose the full middle term of imprisonment only if a consecutive sentence is imposed. The section does not require the trial court to impose a consecutive sentence, but instead indicates that if the trial court chooses consecutive sentencing it must impose a full-term sentence for the witness dissuasion count." (Ibid.)
Here, it is clear from the trial court's comments at sentencing that it did not realize it had discretion to impose a concurrent sentence in count 5 for appellant's conviction of dissuading a witness. This represented an abuse because the court did not understand the scope of its discretion. (People v. Woodworth, supra, 245 Cal.App.4th at p. 1480.)
Respondent asserts that the court's error was harmless, contending a remand would be an idle act. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [finding it unnecessary to remand matter for trial court to consider retroactive discretionary authority].) According to respondent, the court would impose the same sentence even if it had exercised its discretion. To establish harmless error, respondent notes the following.
During sentencing, the court concluded that appellant's crimes had "separate and distinct" purposes and effects. The court determined that J.A. "has been irreparably victimized for life." The court noted that appellant had engaged in "a pattern of calculated, greedy, dehumanizing enslavement of another." The court stated that appellant was "appropriately" ineligible for probation. The court imposed consecutive sentences on all counts, except for appellant's conviction for giving a large-capacity magazine in count 6 (§ 32310, subd. (a)). In this count, the court imposed a concurrent middle term of two years. The court noted that this count "had no ultimate bearing" on the other charges.
We disagree with respondent that remand would be an idle act. The probation report recommended an upper term of four years in count 5, and it stated a consecutive sentence was mandatory. Under section 1170.15, however, if a court imposes a consecutive term for a conviction of dissuading a witness (§ 136.1), then the court shall impose "the full middle term of imprisonment" for the felony. (Italics added.) In light of the erroneous recommendations appearing in the probation report, we are unwilling to conclude a remand would serve no purpose. We remand for resentencing, so the court may properly exercise its discretion. We take no position regarding how the court should exercise that discretion upon remand.
VIII. The Trial Court Imposed An Incorrect Term In Count 4, Which It Shall Correct At Resentencing.
The parties agree, as do we, that the trial court miscalculated appellant's sentence in count 4 when it imposed a consecutive sentence for pandering (§ 266i, subd. (a)(2)). Because this was a subordinate term, appellant received a sentence that was one-third of the middle term, which the court stated was one year three months. The determinate abstract of judgment reflects this calculation. Appellant received an aggregate determinate sentence of eight years seven months.
The middle term sentence for pandering is four years. (§ 266i, subd. (a).) Correctly calculated, the one-third term in count 4 should have been one year four months. As a result, appellant should have received an aggregate determinate sentence of eight years eight months. Upon remand, the court is directed to impose subordinate terms that conform to section 1170.1, subdivision (a).)
DISPOSITION
Appellant's sentence is vacated, and this matter is remanded for resentencing. In count 5, the court shall exercise its discretion whether or not to impose a consecutive sentence. If a consecutive sentence is imposed, that term shall comply with section 1170.15. The court shall also ensure the subordinate terms imposed in this matter conform to section 1170.1, subdivision (a), and those terms are listed correctly in the determine abstract of judgment. Following resentencing, the court shall forward new abstracts of judgment to the appropriate authorities. In all other respects, appellant's judgment is affirmed.
/s/_________
LEVY, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.