APPEAL from a judgment of the Superior Court of Sacramento County, Timothy M. Frawley, Judge. Affirmed as modified. (Super. Ct. No. 08F01404).
The opinion of the court was delivered by: Cantil-sakauye, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted defendant of attempted pimping of a minor under the age of 16 (Pen. Code, §§ 664/266h, subd. (b)(2))*fn2
(count one); pandering of a minor under the age of 16 (§ 266i, subd. (b)(2)) (count two); pimping (§ 266h, subd. (a)) (count three); and pandering (§ 266i, subd. (a)(1)) (count four). The jury acquitted defendant of assault with a deadly weapon (§ 245, subd. (a)(1)) (count five) and corporal injury on a cohabitant (§ 273.5, subd. (a)) (count six), and failed to reach a verdict on a lesser offense to the assault charge and convicted him of simple battery (§ 243, subd. (e)) as a lesser to the domestic violence charge. The trial court found true the allegation that defendant had served a prison term (§ 667.5, subd. (b)). Defendant was sentenced to an aggregate prison term of 10 years and 8 months.
On appeal, defendant contends (1) the jurors were not properly sworn; (2) it was prejudicial error to admit evidence of a prior rape by defendant; (3) the trial court erred in failing to instruct that defendant‟s good faith belief the minor was 18 was a defense to attempted pimping and pandering of a minor under the age of 16; (4) consecutive sentences for pimping and pandering the same victim violate section 654; (5) it was error to impose two restitution fines under section 1202.4; and
(6) the abstract of judgment must be corrected to show the proper crime in count one. The Attorney General concedes the fourth and sixth errors. We accept those concessions and otherwise affirm.*fn3
Defendant lived with his girlfriend, Krista Armstrong, who worked as a prostitute. It was defendant‟s idea for her to work as a prostitute. Armstrong‟s earnings paid all the bills and defendant did not work. She gave defendant all the money she made and he sometimes drove her to work. During their relationship defendant used force and violence against Armstrong. Sometimes she did not want to work, but defendant would beat her if she did not work as a prostitute.
J.V., who was 15 years old, met defendant when he picked her up and gave her a ride. They exchanged phone numbers and she called him a week later. J.V. spoke with defendant about working as a prostitute. J.V. had worked selling drugs, but wanted to work as a prostitute for the easy money.
When defendant brought J.V. home, Armstrong thought she was young. She asked J.V. how old she was and J.V. said 18, but she gave the wrong year as her birth date. Armstrong told defendant J.V. was only 15. During a fight, a friend of J.V. told defendant J.V. was 15. J.V. also told defendant her true age before she was arrested.
Armstrong caught defendant and J.V. having sex and was very angry. Armstrong and defendant fought and defendant beat Armstrong. Armstrong claimed defendant hit her with a Samurai sword.
Defendant drove Armstrong and J.V. to the stroll to work as prostitutes three times. The first two times J.V. had no business. The third time, on February 6, 2008, J.V. was picked up by an undercover vice detective. J.V. asked what he wanted and the detective replied half and half, meaning oral sex and intercourse. J.V. quoted him a price of $150. The detective said he had only $80 and J.V. said that would get him only sex. J.V. directed him to a park. There the detective asked for oral sex and J.V. said yes if he wore a condom. After the detective gave J.V. $80, he gave the signal and J.V. was arrested.
Armstrong did not return to defendant‟s that night after making $300-400 as a prostitute. The next day she called the police and reported defendant beating her. J.V. told the FBI she saw defendant hit Armstrong.
At trial, J.V. claimed it was Armstrong who instructed her on how to be a prostitute.*fn4 She told the FBI, however, that defendant provided the instruction. He told her what to charge and to never give his name to the police. The night she was arrested, defendant wanted her to make $300 to $400. At trial, J.V. confirmed her statements to the FBI were true.
The police arranged for J.V. to make a pretext call to defendant, instructing her to call defendant by name. In the call, J.V. tells defendant she is locked up; the trick was the police. J.V. tells defendant, "I ain‟t doing this no more." Defendant responds he does not want her to. She told him she was picked up by the police right after he dropped her off.
A phone call from defendant in jail to his mother was played for the jury. Defendant told his mother he did not hit Armstrong that night. "I probably kicked her ass probably a--a couple weeks before that but that week, that night, no." Defendant cautioned his mother, "if they ask you anything about [J.V.], you don‟t know nothing . . . . [¶] . . . [¶] [S]o from here on out, no, you don‟t know nothing about no [J.V.] and I don‟t know nothing about no mother-fucking [J.V.]." At the end of the call, defendant said, "I don‟t give a fuck how much time they give me, when I get up out of here, something happening to that bitch. Watch. As soon as I get up out of here."
Pursuant to Evidence Code section 1109, the trial court admitted evidence of defendant‟s prior acts of violence against L.C. who lived with defendant on and off for four years and had a child with him. In December 2001, defendant came over and wanted sex. L.C. told the police he dragged her to the bedroom and had intercourse with her without her consent. She was involved in a custody battle with defendant and recanted the rape story at the preliminary hearing. In response to the trial court‟s question whether the recanting was the truth or a lie, L.C. said, "It was a lie. Some of it was true."
L.C. also testified about an incident in July 2002, where she and defendant got into an argument in a car and hit each other. Defendant hit her in the face; he ...