Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F06824, 01F06247
SIMS, Acting P. J.
A jury convicted defendant Ed Fedrick Weary, also known as Edward Steven Debbs, of soliciting, and receiving, compensation for soliciting for a prostitute. (Pen. Code, § 266h, subd. (a); undesignated statutory references are to the Penal Code.) Defendant admitted a prior robbery strike conviction. (§§ 211, 667, subds. (b)-(i), 1170.12.) He was sentenced to state prison for eight years. A concurrent term of two years was imposed following revocation of probation in an unrelated case.
At the preliminary hearing, defendant stated that his true name was “Edward Steven Debbs,” not “Ed Fedrick Weary.” Thereafter, the Debbs name was used in the superior court. However, the abstract of judgment inexplicably reverted to “Ed Fedrick Weary [¶] AKA: Edward Debbs.” This court has used the Weary name, as it is listed first on the abstract of judgment.
On appeal, defendant contends there was insufficient evidence that he was involved in acts related to prostitution. He claims the trial court erred by failing to instruct the jury sua sponte on the definition of “lewd act” and unanimity, by admitting hearsay statements, and by instructing the jury with extraneous and conflicting definitions of pimping. We shall affirm the judgment.
FACTS
In August 2005, Sacramento Police Detective Jensen was working undercover for the vice unit, targeting street prostitution in a known “stroll” area around Stockton Boulevard and Massie Circle. He had conducted undercover operations at that location on 20 to 25 previous occasions.
Detective Jensen was assisted by two cover officers, Detective Sergeant Weinrich and Detective Borg. Weinrich and Borg helped identify a prostitute for Jensen to solicit. Then they parked nearby, monitored Jensen’s conversations by means of a one-way transmitter, and were prepared to rescue Jensen if the operation became unsafe.
Detective Weinrich radioed to Detective Jensen, letting him know that Weinrich had observed a possible prostitute walking on Massie Circle. Jensen drove to the area and watched as a black female walked with a male Hispanic to an alcove at the back of the Gold Rush Inn, a locale known for room rentals to prostitutes. After about 10 minutes, the couple reappeared from behind the inn and walked across the street to a mall on Stockton Boulevard. The female went to a maroon Buick parked at the north end of the lot. Jensen drove into the lot and parked about three stalls away from the Buick, with no cars between them.
Detective Jensen watched as the female talked to the driver of the Buick. The driver’s door was open and the female was standing by the rear of the open door, enabling Jensen to see them both as they talked. Another black male sat in the passenger seat of the Buick. After about two minutes Jensen made eye contact with, and nodded his head at, the driver, whom Jensen identified in court as defendant. Defendant walked over to Jensen’s car, leaned into the open passenger window and asked Jensen what he was looking for.
Detective Jensen responded that he was “looking for some pussy.” Defendant stated that he had what Jensen was looking for, and that “she was tight, wet, and hot.” Defendant again asked Jensen what he was looking for and he replied, “just sex.” Defendant asked Jensen, “what are you paying,” and Jensen countered, “what [are you] charging?” Defendant asked again, “what are you spending,” and Jensen said that he had $60; defendant responded that “that was fine” and told Jensen to “hold on.” Defendant walked back to the Buick and conversed with the female for a few seconds. Then defendant and the female returned to Jensen’s car. The female opened the passenger door and got inside.
Defendant told Detective Jensen that the female would “treat [him] right” and asked whether Jensen could “hook him up with something for setting up the deal.” Jensen asked, “what [are you] looking for,” and defendant replied, “payment for hooking it up.” Jensen responded that he could “give him $5,” and defendant said, “that would be fine.” Jensen took a $5 bill from his pocket and handed it to defendant. Defendant took the money and walked back to his car.
Detective Jensen then asked the female if she had a “place where we could go.” She responded that she had a place on Victory Lane, and she gave him driving directions to a location about three-quarters of a mile south. As they drove, they discussed the specific sex acts Jensen was looking for (“[a]nal sex and intercourse”) and agreed on a price of $70. Jensen parked the car, gave the female $70, and sent his cover team an oral bust signal.
Sergeant Weinrich took the female into custody. Detectives Borg and Jensen drove back to the parking lot where defendant was still sitting in his Buick. Defendant was taken into custody. He had a $5 bill in his front pants pocket.
The defense rested without presenting evidence or testimony.
DISCUSSION
I
Defendant contends his conviction is not supported by sufficient evidence that he was involved in acts related to prostitution, as opposed to legitimate and constitutionally protected adult entertainment or dating. Relying on a trio of sex entertainment cases (Wooten v. Superior Court (2001) 93 Cal.App.4th 422 [dancers in private booths]; People v. Freeman (1988) 46 Cal.3d 419 [the making of pornographic films]; People v. Hill (1980) 103 Cal.App.3d 525 [nude modeling]), he claims there was insufficient evidence that he “knew that [the female] was a prostitute” who “would perform ‘lewd’ acts of sexual intercourse or touching.” He reasons that, without such knowledge, his own acts “might have been nothing more than a simple act of panhandling, rather than the serious crime of pimping.” We are not persuaded.
“‘To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole.’” (People v. Carpenter (1997) 15 Cal.4th 312, 387, quoting People v. Johnson (1993) 6 Cal.4th 1, 38; see Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560].)
Section 266h provides in relevant part: “[A]ny person who, knowing another person is a prostitute, . . . solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony . . . .”
In this case, Detective Jensen watched as the female, walking in a “stroll” area, took a male Hispanic behind a hotel building alcove for 10 minutes, then parted with the male and walked to defendant’s Buick parked nearby. Jensen watched as the female talked with defendant. In two or three minutes, Jensen made eye contact with defendant, who walked to Jensen’s car and asked Jensen what he was looking for. Jensen said he was “looking for some pussy”; defendant replied that he had what Jensen was looking for, and that “she was tight, wet, and hot.” Jensen added that he was looking for “just sex.” After negotiating a price with Jensen, defendant conversed for a few seconds with the female. Defendant asked for and received $5 compensation for “hooking it up.” The female entered Jensen’s car, directed him to a secluded location, discussed the sexual acts (“[a]nal sex and intercourse”) that Jensen was looking for, and agreed on a price ($70).
On these facts, jurors could readily deduce that defendant knew that the female was a prostitute rather than an actor, dancer, escort or model. Because defendant responded to Jensen’s request for “some pussy” by offering him the female, with assurances that she was “tight, wet, and hot,” and what Jensen “was looking for,” and because he continued with the transaction after Jensen clarified that he was looking for “just sex,” the jury could deduce that defendant knew he was offering the female’s services as a prostitute rather than for “constitutionally protected adult entertainment or dating.” Defendant’s conviction is supported by substantial evidence. (People v. Carpenter, supra, 15 Cal.4th at p. 387.)
II
Defendant contends the trial court erred by failing to instruct the jury sua sponte on the meaning of “lewd act” as used in CALJIC No. 10.70 on the elements of pimping. We disagree.
CALJIC No. 10.70 told the jury in relevant part: “Every person who knowing another person is a prostitute lives or derives support or maintenance in whole or in part from the earnings or proceeds of that other person’s prostitution or from money loaned or advanced or charged against that other person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed or solicits or receives compensation for soliciting for the person is guilty of the crime of pimping in violation of . . . section 266h subdivision (a).
“Prostitution is engaging in sexual intercourse or lewd acts with a person or persons for money or other consideration.
“In order to prove this crime each of the following elements must be proved.
“One, the defendant knew that another person was a prostitute.
“And two, that defendant solicited or received compensation for soliciting customers for the prostitution services of the other person.” (Italics added.)
Defendant claims the court had a sua sponte duty to instruct the jury that a “lewd act” requires that “the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.” (People v. Hill, supra, 103 Cal.App.3d at pp. 534-535.) He is incorrect.
New CALCRIM No. 1150 (Fall 2006 Ed.) includes this definition of lewd act.
“A trial court must sua sponte instruct ‘on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case.’ [Citation.] The trial court must instruct the jury on all elements of the charged offenses. [Citation.] As to additional matters ‘falling outside the definition of a “general principle of law governing the case,” it is “defendant’s obligation to request any clarifying or amplifying instruction.”’ [Citation.]” (People v. Mays (2007) 148 Cal.App.4th 13, 36.)
In this case, defendant responded to Jensen’s request for “some pussy” by offering him the female, with assurances that she was “tight, wet, and hot,” and what Jensen “was looking for”; he continued with the transaction after Jensen clarified that he was looking for “just sex.” No evidence suggested that defendant was offering Jensen any form of “sex” other than sexual intercourse. Thus, the jury was not required to know the Hill definition (Hill, supra, 103 Cal.App.3d 25) of “lewd” or to determine whether defendant was offering acts falling outside its scope. The Hill definition was not “closely and openly connected to the facts before the court,” and thus not within the scope of its sua sponte duty. (People v. Mays, supra, 148 Cal.App.4th at p. 36.) It was defendant’s obligation to request any clarifying or amplifying instruction. (Ibid.)
III
Defendant contends the trial court erred by failing to instruct the jury with CALJIC No. 17.01 on unanimity. Noting that CALJIC No. 10.70 refers to a person who “solicits or receives compensation for soliciting for” a prostitute, he claims the jurors could have disagreed as to the act that constituted the offense. We are not convinced.
“In order to violate [section 266h, subdivision (a)] by soliciting, there must be either the receipt of compensation for soliciting for a prostitute or the solicitation of compensation for soliciting for a prostitute.” (People v. McNulty (1988) 202 Cal.App.3d 624, 630, citing People v. Smith (1955) 44 Cal.2d 77, 79.)
“The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.]” (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
Here, defendant’s query whether Jensen could “hook him up with something for setting up the deal,” and his ensuing receipt of Jensen’s $5 bill, are so closely connected as to form a single transaction. There was no basis for the jury to distinguish between the two acts. Thus, no unanimity instruction was required. (People v. Stankewitz, supra, 51 Cal.3d at p. 100.)
But that is not the end of the matter. CALJIC No. 10.70, in its pattern form and as given here, did not make plain that a violation of section 266h, subdivision (a), requires either (1) the solicitation, or (2) the receipt, of compensation for the act of soliciting customers for a prostitute. (People v. McNulty, supra, 202 Cal.App.3d at p. 630.)
The second element is patently ambiguous, as can be seen by adding alternative implicit punctuations:
CALCRIM No. 1150 rectifies this problem by requiring: “[2. The defendant asked for payment or received payment for soliciting prostitution customers for ____ (;/.)]”
The prosecutor’s argument, which tracked the language of CALJIC No. 10.70, did not clarify the matter and, at several places, asserted an incorrect theory.
Thus in opening summation, the prosecutor argued: “How do we know defendant either -- either solicited, which is coming to agreement for prostitution services, or received compensation for brokering the prostitution services?” (Italics added.) The italicized language invited the jurors to focus improperly on the solicitation of customers, not the solicitation for or receipt of compensation.
Later, the prosecutor argued: “And then after -- after the initial conversation back and forth the defendant responds I got what you need. She’s tight, wet, and hot, clearly referring to a female for prostitution services. [¶] That exchange of words alone is sufficient for soliciting prostitution services of another.” (Italics added.)
Still later, the prosecutor argued: “And he said at one point in the conversation he wanted just sex. After that they talked about money. And they came to an agreement -- $60. Detective Jensen agreed to pay $60. The defendant said fine. Hold on. And he left. [¶] So there is the solicitation taking place. The crime is the agreement for $60. They’re clearly talking about sexual services by a female prostitute.” (Italics added.)
The prosecutor continued: “So clearly we are talking about prostitution services. Then he goes further. Instead of just soliciting he actually goes to receive compensation for setting up this prostitution service. He says you’re going to give me something for hooking this up; right?”
Then the prosecutor summarized: “So we have the solicitation. We have the agreement. We also have the defendant receiving compensation for setting this up, the -- namely the $5.”
In his summation, defendant (who represented himself at trial) argued that the case was “all based on perjured testimony of Detective Jensen.” Defendant identified several purported lies, including one regarding the $5 payment: “He lied. Where is the $5 at? He claimed he got $5 from the defendant’s pocket. Where is it at? Do you see any evidence introduced in the case of $5? Where is it at? The district attorney can’t tell you because he wasn’t there. Was he supposed to book that evidence?” Based on the lie, defendant asked the jury to reject Detective Jensen’s testimony in its entirety.
In closing summation, the prosecutor did not return to the elements of the offense.
The judicial error here was not, as defendant claims, the omission of a unanimity instruction. Rather, it was the use of an ambiguous (and now superseded) pimping instruction that allowed the prosecutor to argue repeatedly that “solicited” meant “coming to agreement for prostitution services,” rather than for the pimp’s compensation; and that “[t]he crime is the agreement for $60,” rather than the agreement for $5. (People v. Mays, supra, 148 Cal.App.4th at p. 36 [sua sponte duty to instruct on general principles of law commonly or closely and openly connected to facts before the court and necessary for jury’s understanding of the case].)
Defendant claims the error is not harmless beyond a reasonable doubt. (Citing People v. Smith (2005) 132 Cal.App.4th 1537, 1545.) He argues jurors could have concluded that he solicited Officer Jensen for the prostitute’s services, yet did not solicit or receive his own compensation, because no $5 bill was admitted into evidence.
However, the jury was instructed that it “must determine what facts have been proved from the evidence received in the trial and not from any other source. A ‘fact’ is something proved by the evidence.” (CALJIC No. 1.00.) The jury was further instructed that “[s]tatements made by the attorneys during the trial are not evidence.” (CALJIC No. 1.02.) The jury was also instructed that “[n]either side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence.” (CALJIC No. 2.11.)
Thus, the jury was effectively instructed that defendant’s argument that he did not solicit or receive $5 was not evidence of non-solicitation or non-receipt. The jury was further instructed that its determination whether defendant had solicited or received compensation must be based on “evidence received in the trial,” rather than from non-evidence such as an argument of counsel (or party in pro per). Because the only evidence showed a payment, and no evidence supported defendant’s argument that no payment was solicited or received, the jury had no basis to find from the evidence at trial that he solicited for a prostitute but did not solicit or receive his own compensation. We presume the jurors followed their instructions. (People v. Young (2005) 34 Cal.4th 1149, 1214.)
Because defendant’s unsupported argument had no basis in the evidence, the ambiguous instruction and incorrect argument collectively allowing the jury to disregard the unsupported argument were surely “unimportant” to the jury’s consideration of the case. (Yates v. Evatt (1991) 500 U.S. 391, 403 [114 L.Ed.2d 432], overruled on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4 [116 L.Ed.2d 385]; People v. Flood (1998) 18 Cal.4th 470, 493-494.) Any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
IV
Defendant contends the trial court erred by failing to exclude the absent female’s hearsay statements to Detective Jensen as they drove to the secluded location suggested by the female. We disagree.
Background
Prior to trial, defendant objected to “any of [the female’s] statements given to any officer or -- based on the grounds of hearsay and that the court not allow any of the officers to testify to any statements she made.”
The prosecutor responded that a warrant was out for the female’s arrest, and that, if she did not testify, he would not introduce any of her statements to the officers without discussing the issue with the court and defendant. The court assured defendant that the statements would not be admitted before it made a further ruling.
The next day, defendant stated: “I made an objection yesterday to [the female’s] statement. Her confession to Detective Sergeant Weinrich on hearsay grounds. The court granted that, and what -- today I want to make the objection -- I want to object to her statement and to any officers testifying to her statement on the grounds that would deny defendant right to confront and cross-examine under 611.” (Italics added.)
The trial court responded in part: “Again, I’m not going to rule on it until we see, first of all, whether [the female] actually appears in court to testify. And, second, what theory they have for the admissibility of an out-of-court statement that she made to somebody else.”
Later that morning, Detective Jensen testified without further objection that (1) the female stated she had a place on Victory Lane, (2) they discussed the specific sex acts he was looking for, and (3) they discussed and reached an arrangement on price.
Analysis
The Attorney General argues defendant limited his pretrial objection to the female’s “confession to Detective Sergeant Weinrich on hearsay grounds,” thereby forfeiting any objection to her statements to Detective Jensen. We disagree.
Defendant initially objected to “any of [the female’s] statements given to any officer or -- based on the grounds of hearsay and that the court not allow any of the officers to testify to any statements she made.” His statement the following day did not purport to limit the scope of his earlier objection. We thus proceed to the merits of his contention.
In People v. Dell (1991) 232 Cal.App.3d 248 (Dell) the defendant claimed “the testimony of the police officers relating the escorts’ statements concerning the sex acts they would perform for the fee was inadmissible hearsay.” (Id. at p. 258.) The court rejected the contention, explaining “the statements of the escorts, testified to by the officers, also were not offered for the truth of the matter asserted. The statements were not offered to prove the escorts would actually perform these specific sex acts and at the quoted price. For example, there is no special significance in one escort’s statement it would cost an additional $40 for oral copulation without a condom. The truth or falsity of what the escort said is immaterial. In these types of situations, the content of the words spoken is irrelevant, the significance is in the fact the words were uttered at all. These statements could be admitted as ‘operative facts’ or ‘verbal acts’ because they demonstrated an issue in the case: that the escorts were making verbal offers to enter into contracts of prostitution, that is, to engage in sexual intercourse or other lewd acts for money. The purpose of this evidence, in turn, was to prove appellant’s business involved prostitution as an element of the pimping and pandering charges.” (Id. at p. 262.) Dell is dispositive of defendant’s hearsay contention.
Defendant’s confrontation clause contention fares no better. This court has rejected the argument that statements made to a police officer, albeit unknowingly, are per se “testimonial” within the meaning of Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. (People v. Morgan (2005) 125 Cal.App.4th 935, 947.) Defendant does not claim the female’s statements were within any other category of “testimonial” hearsay considered in Crawford. There was no error.
V
Defendant contends the pimping instruction erroneously contained additional definitions of the crime, despite the prosecution’s election to proceed on the theory of pimping by soliciting, or receiving, compensation; the superfluous definitions “resulted in conflicting instructions to the jury.” We find no prejudicial error.
As noted, CALJIC No. 10.70 defined pimping in part as living or deriving “support or maintenance in whole or in part from the earnings or proceeds of that other person’s prostitution or from money loaned or advanced or charged against that other person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed.” (See part II, ante.) None of these alternate forms of pimping was at issue in this case.
However, the instruction properly clarified that, “[i]n order to prove this crime each of the following elements must be proved. [¶] One, the defendant knew that another person was a prostitute. [¶] And two, that defendant solicited or received compensation for soliciting customers for the prostitution services of the other person.” (Italics added.) This portion of the instruction properly focused the jury’s attention on the relevant definition of pimping.
The jury was further instructed to “[d]isregard any instruction which applies to facts determined by you not to exist.” (CALJIC No. 17.31.) Because no facts suggested defendant was deriving support from the female’s acts of prostitution, the jury effectively was instructed to disregard the superfluous portions of the instruction.
“[A]lthough it is error for a trial court to give an ‘abstract’ instruction which is correct in law but irrelevant to the case, in most cases this is only a nonprejudicial technical error which does not constitute grounds for reversal. [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.) So it was in this case.
DISPOSITION
The judgment is affirmed. The trial court is directed to determine defendant’s true name and perform any necessary correction to its records.
We concur: HULL, J., ROBIE, J.
The Attorney General requests that we caption this action using the Debbs name and amend the abstract of judgment to reflect the Debbs name. Because the trial court was not bound by defendant’s statement at the preliminary hearing, we shall direct that court to determine defendant’s true name and perform any necessary correction to its records.
Correct: “And two, that defendant solicited[,] or received[,] compensation for soliciting customers for the prostitution services of the other person.”
Incorrect: “And two, that defendant solicited[,] or received compensation for soliciting[,] customers for the prostitution services of the other person.”