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The People v. Montell Deshay et al

May 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MONTELL DESHAY ET AL., DEFENDANTS AND RESPONDENTS.



Super. Ct. No. 08F00779

The opinion of the court was delivered by: Mauro , J.

P. v. Deshay CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendants Montell Deshay and Keako Lipscomb were convicted of pimping and pandering with a minor. In addition, Deshay was convicted of inducing a minor to pose for a photograph depicting sexual conduct, and Lipscomb was convicted of supervising or otherwise aiding a prostitute, plus three counts of unlawful oral copulation with a person under the age of 18 years.

The following contentions are asserted on appeal: (1) Deshay contends the trial court erred in denying his motion to quash and traverse a warrant to search his residence, because certain facts were misstated in the warrant application; (2) both defendants contend they cannot be convicted of pandering a person who was already a prostitute; (3) defendants contend the trial court erred in admitting a hearsay statement by the minor as a prior inconsistent statement where the minor indicated she did not remember; (4) defendants contend the trial court erred in instructing the jury on conspiracy because the statutes do not identify a conspirator as a principal; and (5) Deshay contends he is entitled to additional conduct credits under Penal Code section 4019.*fn1

We conclude (1) substantial evidence supports the trial court's determination that any misstatement in the search warrant application was not intentional or reckless and that there was probable cause to support the warrant; (2) the convictions for pandering were appropriate on this record because the minor had stopped prostitution at the time that defendants induced her to start again; (3) even if the trial court erred in admitting a hearsay statement by the minor, Lipscomb forfeited her claim of error and Deshay was not prejudiced because it is not reasonably probable that he would have obtained a more favorable result absent the error; (4) controlling case authority supports the trial court's conspiracy instruction in this case; and (5) Deshay is entitled to additional presentence conduct credits.

We will affirm Lipscomb's judgment. We will modify Deshay's judgment to increase his custody credits and affirm his judgment as modified.

BACKGROUND

D.H., the 16-year-old victim, met 32-year-old Lipscomb on MySpace, a social networking website. D.H. had run away from home on multiple occasions, starting when she was 13 years old, and had resorted to prostitution to support herself. However, D.H. no longer worked as a prostitute when she met Lipscomb. She lived in Oakland with her mother and worked with children at a recreational center.

After meeting Lipscomb online, D.H. spoke to her and Deshay on the telephone and also exchanged text messages. D.H. lied to defendants about her age because she thought adults would not be interested in being friends with a girl. Thereafter, D.H. attempted to break off contact with defendants by avoiding them. When they asked why she was doing so, she confessed that she was only 16 years old, not 19 as she had stated previously. One of the defendants replied that "age was just a number" and they would have to be more careful with her.

Lipscomb drove to Oakland from Sacramento to meet D.H. on August 3 or 4, 2007. They stayed in a hotel and the two had oral sex. The next day, Lipscomb and D.H. went to the airport to pick up Deshay. They all went back to the hotel, Lipscomb and D.H. had oral sex again, and D.H. also performed oral sex on Deshay. On August 5, 2007, they all left for Sacramento because D.H. had decided to run away from home and live with defendants. D.H. never told defendants she wanted to work as a prostitute again and D.H. did not plan to be a prostitute.

Soon after arriving in Sacramento, D.H. told Lipscomb that she needed money for clothes. Lipscomb told her that if she needed money she should go back to doing what she had done before, which D.H. understood to mean prostitution. D.H. did so with the help of Lipscomb and Deshay, who both posted ads on Craigslist concerning D.H.'s and Lipscomb's availability for sexual services. Deshay took photographs of D.H. for the advertisements. Lipscomb drove D.H. to her "dates" with clients and sometimes they would have a "threesome." D.H. stayed at hotels where she was working or in the garage of the residence of Deshay's mother, with whom Deshay lived. Deshay did not appear to have a job.

D.H. and Lipscomb plied their trade in Sacramento and Salinas. Per Deshay's instructions, D.H. gave all of the money she earned to Lipscomb, who used it to pay for meals, hotels and rental cars, or she took it to the bank. Sometimes Deshay stayed with them at the hotels and ate meals with them, but Lipscomb acted as a buffer between D.H. and Deshay, requiring her to communicate with him through Lipscomb. Lipscomb told D.H. that if she ever got caught she should not mention Deshay because he could get in a lot of trouble.

After a few weeks, D.H. returned to Oakland without telling defendants. She prostituted herself there for awhile but then decided to go back to Sacramento after Lipscomb assured her she would not be in trouble with them. When D.H. returned, however, Deshay grabbed her by the throat and choked her, telling her it was not that easy to leave and come back. D.H. understood that her role in the relationship with defendants was to bring in the money. They both pressured her to work more. The arrangement ended on the night of October 6, 2007, however, when D.H. was caught as she was about to engage in oral sex with a man in his car.

Police Officer Marc Milligan was on patrol when he noticed a vehicle parked facing in the wrong direction. He parked behind the vehicle, illuminated it with his spotlight and saw two people in the back seat, who were later identified as D.H. and Jeremiah Pearson. D.H. initially told Officer Milligan that her name was Alliayah Johnson and gave him two conflicting birthdates, one of which indicated she was a juvenile. When Milligan found an ATM card bearing the name D.H. in her purse, she admitted that was her true name. He also found a cell phone, pepper spray and approximately 30 small pieces of paper bearing the name Alliayah and a phone number. Based on his experience, these pieces of paper were typically used by prostitutes as business cards to solicit customers.

Officers Thebeau and Walker were dispatched to assist Officer Milligan. The officers observed an additional vehicle across the street and spoke with the driver, Lipscomb. She claimed she was there to pick up her daughter, Alliayah Johnson. Lipscomb provided conflicting birthdates for her alleged daughter, but both dates made her a minor. When confronted with the fact her alleged daughter was actually named D.H., Lipscomb replied that her daughter used the alias "Ally Johnson." The officers arrested Lipscomb and D.H. for providing false information to an officer and obstructing an investigation. Lipscomb's purse contained a driver's license belonging to Deshay and a U.S. Bank Card in Deshay's name.

On October 7, 2007, just after 1:00 a.m., Detective Derek Stigerts received a phone call from a patrol sergeant regarding a possible juvenile prostitution matter. He entered the phone number found in D.H.'s purse on Craigslist and Redbook and retrieved two advertisements for erotic services with photographs of two African American women. According to Stigerts, prostitution has become more of an internet based business, with Craigslist and Redbook being the two most prevalent prostitution sites. The typical hierarchy in juvenile prostitution involves a pimp at the top, a stable of prostitutes called "wifeys," and a "bottom" woman or trusted prostitute, who insulates the pimp from law enforcement. The "bottom" will collect the money, do the recruiting, get the motel rooms and drive the girls to dates so that the pimp will not be around and in danger of being arrested. The prostitutes commonly refer to their pimp as "Daddy."

Detective Kristine Morse also testified it was typical for prostitutes to refer to their pimp as "Daddy" and other prostitutes they work with as "wifey." According to D.H., she and Lipscomb referred to Deshay as "Daddy." Deshay's cell phone number was listed in D.H.'s phone under "Daddy D." and Lipscomb's cell number was listed under "wifey." On the night D.H. had her "date" with Pearson and around the time she was discovered by Office Milligan, she received two phone calls from "wifey" and one from "Daddy D."

Law enforcement officers searched Deshay's residence on Tamarindo Lane pursuant to a search warrant. They seized a computer used to post prostitution ads on the internet. According to a computer forensic expert, someone had deleted the ads, including an ad posted on the night D.H. was arrested.

Morse arrested Deshay, searched him, and found receipts for D.H.'s cell phone, a car rental, and the Laurel Inn in Salinas where D.H. said she had worked as a prostitute. Deshay stated he went to Salinas with Lipscomb for an air show, and he had stayed at the Laurel Inn when he was in Salinas for a jazz festival. Deshay stated he had heard of D.H. but he had never met her in person. He acknowledged that ...


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