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The People v. Montell Deshay et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento


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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 her phone number was programmed into his phone, but denied putting erotic pictures of her on the computer.

Deshay denied having any bank accounts, but bank records indicated he opened a Visa debit card account with U.S. Bank on August 27, 2007. Cash deposits were made into the account in August and September 2007, and a cash deposit was made in Salinas on October 1, 2007. The account was used to make rental car and hotel payments.

A jury convicted Deshay and Lipscomb of pimping and pandering with a minor (Pen. Code, §§ 266h, subd. (b)(1), 266i, subd. (a)(2)), and also convicted Deshay of inducing a minor to pose for a photograph depicting sexual conduct (Pen. Code, § 311.4, subd. (c)). In addition, the jury convicted Lipscomb of supervising or otherwise aiding a prostitute (Pen. Code, § 653.23, subd. (b)(1)), and three counts of unlawful oral copulation with a person under the age of 18 years (Pen. Code, § 288a, subd. (b)(1)). The trial court sentenced Deshay to a total term of six years in state prison, and Lipscomb to four years and four months in state prison.

I DISCUSSION

Deshay contends the trial court erred in denying his motion to quash and traverse the warrant for the search of his home. He argues the warrant contains an intentionally or recklessly false statement of material fact which, if excised, would render the warrant legally insufficient to establish probable cause for the search.*fn2

When a defendant moves to quash a search warrant, the trial court must review the totality of the circumstances presented to the magistrate in the affidavit in support of the warrant, and assess whether the magistrate correctly determined there was a "'fair probability'" that contraband or evidence of a crime would be found at the location named in the place to be searched. If the trial court finds that the affidavit established probable cause for the issuance of the warrant, then the court will deny defendant's motion to quash the warrant. (People v. Hobbs (1994) 7 Cal.4th 948, 975.) A reviewing court "should not conduct a de novo review of the evidence," but rather, should only determine whether the affidavit fails as a matter of law to set forth sufficient competent evidence to support a finding of probable cause. (People v. McDaniels (1994) 21 Cal.App.4th 1560,1564.)

In Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667] (Franks), the United States Supreme Court held that a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. To mandate an evidentiary hearing on a Franks motion to traverse the warrant, the defendant must make a substantial preliminary showing that the affidavit contains material omissions or misstatements which were made either intentionally or with a reckless disregard for the truth. (Id. at pp. 155-156, 171 [57 L.Ed.2d at pp. 672, 681-682].) The defendant must also show that the affidavit's remaining contents, after the false statements are excised, are insufficient to justify a finding of probable cause. (Id. at pp. 155-156, 171 [57 L.Ed.2d at pp. 672, 681-682].)

At the evidentiary hearing, the defendant must establish by a preponderance of the evidence that the false statements were made either deliberately or recklessly, and were necessary to a finding of probable cause. (Franks, supra, 438 U.S. at pp. 155-156, 171 [57 L.Ed.2d at pp. 672, 681-682].) If the defendant prevails, the search warrant is voided and the evidence seized pursuant to the warrant suppressed. (Ibid.) However, innocent or negligent omissions or misstatements will not defeat the warrant. (Franks, supra, 438 U.S. at pp. 155-156, 171 [57 L.Ed.2d at pp. 672, 681-682]; see also People v. Panah (2005) 35 Cal.4th 395, 496.) A mere discrepancy between the actual facts and those recited in the affidavit does not establish reckless disregard for truth; there must be some evidence of affiant's mental state for such a showing. (People v. Costello (1988) 204 Cal.App.3d 431.) But "the 'police [cannot] insulate one officer's deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.'" (People v. Bradford (1997) 15 Cal.4th 1229, 1300, quoting Franks, supra, 438 U.S. at pp. 163-164, fn. 6 [57 L.Ed.2d at p. 677, fn. 6].)

Detective Aaron Borg prepared the search warrant affidavit for Deshay's residence on Tamarindo Lane based on information he received from Stigerts and Morse, who had interviewed Lipscomb and D.H. respectively on the night they were arrested. According to the transcript of Lipscomb's interview, Stigerts asked her how she posted the ads on Craigslist. She stated she used a laptop, but claimed it was broken and was at an unidentified repair shop. When Stigerts confronted Lipscomb with the fact an ad had been posted that night, she laughed and said she asked a friend who lived in the house on Tamarindo to post it. She admitted her "husband" Deshay lived there and that he "probably" was the one that posted the ad on Craigslist.

In his affidavit, Borg declared he had been a vice detective since 2005, had been involved in several investigations regarding prostitution, pimping and pandering, and had extensive experience regarding internet sources used by pimps to advertise prostitutes. Borg averred that in his experience and that of other vice detectives, pimps and panderers keep the computers they use to post "escort ads" in their residences or vehicles. They also keep photos of their escorts on their computer for postings.

Borg related (1) the background of Officer Milligan's contact with Lipscomb and D.H.; (2) that prostitution ads for D.H. were posted on Craigslist; (3) that Morse's interview with D.H. indicated the girl was working as a prostitute and that the money she earned was used to support Lipscomb and Deshay; (4) that Deshay was listed in D.H.'s phone as "Daddy," which is a term used by prostitutes for their pimps; (5) that Stigerts interviewed Lipscomb, who "stated that the computer used to post the Craigs List ads depicting her and [D.H.] were at her 'husband's' house" (emphasis added); (6) that Lipscomb stated Deshay was her husband and lived on Tamarindo Lane; (7) that Deshay's address of record was 5621 Tamarindo Lane; and (8) that based on Borg's training and experience and the aforementioned information, Borg "believe[d] that there is a computer and/or evidence of pimping and/or pandering at 5621 Tamarindo Lane."

Deshay contends the emphasized statement -- that the laptop used to post advertisements for D.H.'s services was in his home -- was an intentionally or recklessly false one. Lipscomb told Detective Stigerts that the laptop used to post the ads was in the repair shop. Although she indicated she asked someone at the Tamarindo residence to post an ad for her that night, that does not mean the computer used to do so was in the residence rather than elsewhere.

The trial court found that Deshay made the preliminary showing necessary to entitle him to an evidentiary hearing, but after hearing the witnesses' testimony it denied the motion to quash and traverse the warrant. It found that Officer Stigerts was negligent but that there were no intentional or reckless misstatements in the search warrant affidavit.

"Appellate review of such a factual finding is strictly limited. If the trial court's determination is supported by substantial evidence, it will be upheld on appeal." (People v. Glance (1989) 209 Cal.App.3d 836, 847; see also People v. Costello, supra, 204 Cal.App.3d at pp. 440-441 [trial court's factual finding as to the falsity or recklessness of an affidavit statement must be upheld if supported by substantial evidence].) Under this standard of review, there is enough evidence to support the trial court's finding that the alleged misstatement was not intentional or reckless.

Stigerts testified that based on his experience and statements Lipscomb made about her financial arrangement with Deshay, he believed that Deshay was a pimp. It was not common for a pimp to use a public computer to post a prostitution advertisement. Stigerts opined that a computer at the Tamarindo residence was used to post the ad on Craigslist because Lipscomb had asked someone there to post the ad; she said that the "someone" was probably Deshay, who appeared to be a pimp; and in Stigerts's experience, the pimp has the computer. Although his police report stated, "Someone at his house probably posted the ads from Craigslist" and "[t]hat's where our laptop is," this was "a miswrite, . . . an error." Stigerts did not deliberately provide Borg with false information pertaining to Lipscomb's interview, and did not deliberately provide false information in his report.

Stigerts wrote his police report on the same day that Borg prepared his affidavit. Borg and Stigerts testified the report had not been prepared when Borg drafted the affidavit. Borg based the affidavit on information he obtained directly from Stigerts and Morse. Although neither Stigerts nor Borg could remember their face-to-face discussion, which occurred several years prior to the Franks hearing, it was Stigerts's practice to confer verbally with the person preparing the warrant and it was Borg's practice to speak with the people providing supporting information for the affidavit.

According to Borg, Stigerts had never provided him with false information before. If he had known that Stigerts merely assumed rather than knew that the computer was in Deshay's house, Borg would have drafted the affidavit differently. Borg testified that because (1) the interviews of D.H. and Lipscomb indicated they were prostitutes and Deshay was their pimp; (2) a computer had been used to post ads on Craigslist; and (3) pimps tend to keep their computers with them in their residence or car, this would cause him to focus the search on finding a computer in Deshay's house or car.

Substantial evidence supports the trial court's determination that Stigerts's misstatement was made negligently, rather than intentionally or with a reckless disregard for the truth. Facts known to Stigerts, Morse, and Borg indicated that D.H. was a prostitute and Deshay was acting as her pimp. Even if Lipscomb's statement that the laptop was in the repair shop was credible, it did not mean that the laptop was the only computer owned by Lipscomb and/or Deshay given that someone posted a prostitution ad on the night of her arrest and there was no computer in Lipscomb's car when she was arrested. Lipscomb told Stigerts that Deshay probably posted the prostitution ad. Based on the detectives' experience and training concerning computer-based prostitution, pimps tend to keep their computers with them and do not use public computers to post ads. Under the totality of the circumstances, there was probable cause to believe that the computer Deshay used to post the ads was located in his house.

Thus, as the trial court observed, Stigerts did not need to fabricate that Lipscomb said a computer was in Deshay's house in order to obtain a warrant. The aforementioned evidence supported a conclusion that the computer was there and would have been sufficient to obtain a warrant had Stigerts spelled out the basis for his assumption. And the fact it was unnecessary for Stigerts to lie supports the court's finding that Stigerts's misstatement was negligent rather than intentional. Accordingly, the trial court did not err in denying the motion to quash and traverse the search warrant.

II Defendants challenge the sufficiency of the evidence in support of their convictions for pandering a minor (§ 266i, subd. (a)(2); count2).

In reviewing a challenge to the sufficiency of the evidence, we "consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432; see also People v. Staten (2000) 24 Cal.4th 434, 460.) Our sole function is to determine if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573]; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Marshall (1997) 15 Cal.4th 1, 34.) Reversal is not warranted unless it appears "'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin, supra, 18 Cal.4th at p. 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.) The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. (People v. Zamudio, supra, at p. 357; People v. Maury (2003) 30 Cal.4th 342, 396.) The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.)

As relevant to the present case, section 266i, subdivision (a) provides: "Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, . . . : [¶] . . . [¶] (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute. . . ."*fn3 Subdivision (b) sets forth penalties for pandering a minor.

The trial court instructed the jury: "Inducing, persuading or encouraging a person, who is currently acting as a prostitute, is not a violation under this law. [¶] However, inducing, persuading or encouraging a person, who has been a prostitute in the past, but is not currently acting as a prostitute, is a violation of the law. [¶] So the requirement is that someone, in these ways, did cause, persuade or encourage [D.H.] to become a prostitute or be a prostitute. You draw the distinction. If she was currently acting as a prostitute when that occurred, then the law does not cover that." (See People v. Wagner (2009) 170 Cal.App.4th 499, 506-511 [section 266i, subd. (a)(2) is not violated when the person being induced, persuaded or encouraged is currently a prostitute]; but see People v. Bradshaw (1973) 31 Cal.App.3d 421, 426; People v. Patton (1976) 63 Cal.App.3d 211, 216-218; People v. Hashimoto (1976) 54 Cal.App.3d 862, 866-867.)*fn4

Defendants maintain that this instruction was not sufficient. They contend that, as a matter of statutory construction, section 266i, subdivision (a)(2) is not violated where the person being induced, persuaded or encouraged to become a prostitute is already a prostitute and D.H. had been one since she was 13 years old. According to defendants, it matters not that D.H. may have ceased working as a prostitute for a period of time before coming to live with them. In effect they argue: Once a prostitute, always a prostitute. Accordingly, they did not encourage D.H. "to become" a prostitute within the meaning of the statute and their convictions for pandering must be reversed based on insufficiency of the evidence. Deshay argues further that even if one can pander a former prostitute, there is no evidence that he encouraged D.H. to become a prostitute, only Lipscomb did so. And once D.H. began prostituting again, any further encouragement by him cannot be considered pandering as D.H. was already a prostitute. We disagree with defendants' selective interpretation of the statute and of the evidence.

"Pandering, as defined in section 266i, includes a broad spectrum of behaviors and degrees of culpability." (People v. Almodovar (1987) 190 Cal.App.3d 732, 740-741.) The statute is an attempt "'"to cover all the various ramifications of the social evil of pandering and include them all in the definition of the crime, with a view of effectively combating the evil sought to be condemned."' [Citations.] It is 'designed to discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitute's operation, or increasing the supply of available prostitutes.' [Citation.]" (Id. at p. 741; People v. Patton, supra, 63 Cal.App.3d at p. 217; People v. Hashimoto, supra, 54 Cal.App.3d at p. 867.)

There is nothing in the statutory language indicating that the Legislature intended to give panderers free rein to pander former prostitutes. Indeed, given the legislative purpose of discouraging prostitution and inhibiting its expansion, it would defy logic to interpret the statute as excluding the act of convincing a reformed prostitute to return to the trade. Under the circumstances, defendants' challenge to the sufficiency of the evidence fails because, when the evidence is viewed in the light most favorable to the judgment (People v. Staten, supra, 24 Cal.4th at p. 460), it is clear that a rational jury could find that defendants encouraged, induced, or persuaded D.H. to become a prostitute again.

D.H., a minor, was working with children at a recreational center and was no longer working as a prostitute when she was befriended by the adult defendants. After learning that she was a minor, they indicated that "age was just a number" and they would have to be more careful with her. Lipscomb drove to Oakland to meet D.H. and Deshay joined them a day later. The two adults transported D.H. to Sacramento. When D.H indicated that she needed money for clothes, Lipscomb told her to go back to doing what she had done before. Deshay took photographs of D.H. and he and Lipscomb posted them in Craigslist ads for D.H.'s sexual services. Lipscomb drove D.H. to her prostitution "dates." This evidence supports a finding that Lipscomb encouraged D.H. to return to prostitution and that Deshay did so too by taking concrete steps to prepare and assist D.H. in restarting her prostitution endeavor.

Furthermore, despite Deshay's attempts to insulate himself from liability, the evidence supports an inference that Lipscomb was Deshay's "bottom" woman and was acting on his behalf when she encouraged and assisted D.H. in returning to work as a prostitute. Lipscomb collected the money for Deshay, deposited it into his bank account, and she or Deshay used his Visa debit card to book hotel rooms and rental cars for their prostitution enterprise. The two adults knew what they were doing when they went to collect D.H. in Oakland, and that was to bring her back to Sacramento to have her work as a prostitute for "Daddy" pimp Deshay. This arrangement is reaffirmed by the evidence that after D.H. left for Oakland without telling defendants and then returned to Sacramento, Deshay choked her and both defendants pressured her to work more.

The record supports Lipscomb's and Deshay's convictions for pandering a minor.

III Defendants contend the trial court erred when it admitted a hearsay statement by D.H. under the prior inconsistent statement exception to the hearsay rule (Evid. Code, § 1235).

While questioning Detective Morse about her interview of D.H. on October 7, the prosecutor asked if D.H. had ever spoken about the Laurel Inn. Defense counsel interposed a hearsay objection and the prosecutor responded that the evidence was offered for impeachment. The court called a 15-minute recess and held an unreported sidebar conference. After the jury returned, the court explained that counsel and the court had been discussing the hearsay rule and "wrestling with" the prior inconsistent statement exception to the rule.

The next day, the prosecutor questioned Morse about her interview of D.H. in January. Morse related that D.H. said that Deshay and Lipscomb posted most of the prostitution ads on Craigslist and that D.H. posted some of them. This was consistent with D.H.'s testimony that she posted some ads and saw Lipscomb and Deshay post others. When the prosecutor asked Morse if D.H. indicated whose e-mail address was used to post the ads, counsel objected on the grounds of hearsay "and not inconsistent." The prosecutor responded that "it is an inconsistent statement, and I can provide information as such, and we discussed this yesterday, as far as the ability to redirect."

The court stated: "Well, I, earlier, prevented you from asking some questions because it had not been made clear to me that they were offered as inconsistent statements of [D.H.] or statements in which she had indicated she didn't remember, her testimony in which she didn't remember certain things. So I will permit you, in those areas, to impeach the witness; that is, [D.H.], by bringing out these earlier statements. They are permissible and the jurors may consider them. [¶] So the objection is overruled."

Thereafter, Morse testified that during the January interview, D.H. told her that Deshay's e-mail was used to post the ads.

Defendants contend the trial court erred in admitting the hearsay statement because the fact D.H. exhibited a lack of recollection, or may have answered "I don't know," is not a prior inconsistent statement unless there is evidence she was being intentionally evasive or had a selective lack of recall. Defendants argue that although there is evidence that a specific e-mail account was used to post and delete ads and to receive confirmations for hotel and rental car reservations, the prosecutor never asked D.H. if it was Deshay's account or if D.H. knew to whom it belonged. D.H. simply testified it was not her account. Thus, defendants contend that the prior inconsistent statement exception to the hearsay rule did not apply.

Assuming without deciding that the court erred in admitting the evidence, defendants' claim of error fails because Lipscomb forfeited her claim and Deshay was not prejudiced by the court's ruling. A conviction will not be reversed unless it is reasonably probable a result more favorable to the defendant would have occurred in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

Lipscomb forfeited her challenge to the alleged error because she does not present any analysis regarding how the evidence that Deshay's e-mail was used to post the ads could have caused her any prejudice. (People v. Coley (1997) 52 Cal.App.4th 964, 972 [the appellant bears the burden of showing both error and prejudice]; People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136 [the appellant's analysis must be connected to the evidence in the case].) As for Deshay, the alleged error was harmless. Other evidence established that (1) Deshay took the photos used in the prostitution ads posted on Craigslist and Redbook; (2) D.H. testified Deshay and Lipscomb posted the ads; (3) Deshay accompanied Lipscomb and D.H. on prostitution trips; (4) Deshay's Visa debit card was used to pay for the rental cars and hotel rooms; (5) the money earned was turned over to Lipscomb at Deshay's instruction; (6) during the trips money was deposited into Deshay's bank account; and (7) Deshay had no other visible means of support. Deshay also choked D.H. and told her it was not that easy to leave and come back. Deshay and Lipscomb both pressured D.H. to earn more money. This evidence amply demonstrates that even if the court had excluded the challenged hearsay evidence, a more favorable verdict was not reasonably probable. (People v. Watson, supra, 46 Cal.2d at p. 836.)

IV Defendants contend the trial court committed reversible error when, over their objection, it instructed the jury about the substantive offense of conspiracy and indicated it was an alternate theory of criminal liability for the pimping and pandering offenses. Defendants argue that the error was exacerbated by the prosecutor's closing argument to the jury. Again, defendants' contention is not persuasive.

The trial court instructed the jury that a person may be guilty of a crime in two ways, either as a direct perpetrator or as an aider and abettor. After instructing the jury concerning aider and abettor liability, the court stated: "Now, here's another concept, and that is the concept of conspiracy." The court instructed the jury in the language of CALCRIM No. 416 concerning evidence of an uncharged conspiracy. It advised the jury of the elements of conspiracy, that the People contended defendants conspired to commit pimping or pandering, and that "[a] member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy."

Thereafter, the prosecutor argued to the jury that even if it believed that Lipscomb was the panderer, there was evidence that Deshay conspired with Lipscomb to pimp and pander D.H. He photographed D.H. for the ads, posted some of the ads on Craigslist, deleted the ads to hide evidence, and received money from the enterprise into his bank account.

Defendants maintain that conspiracy is not a valid theory of liability because the Penal Code does not specify conspirators as principals. Defendants acknowledge, however, that the California Supreme Court has indicated otherwise in In re Hardy (2007) 41 Cal.4th 977 (Hardy). The court in Hardy stated that "[o]ne who conspires with others to commit a felony is guilty as a principal" and that "'"[e]ach member of the conspiracy is liable for the acts of any of the others in carrying out the common purpose . . . ." [Citations.]'" (Hardy, supra, 41 Cal.4th at pp. 1025-1026, italics omitted; see also People v. Kauffman (1907) 152 Cal. 331, 334-337; People v. Pike (1962) 58 Cal.2d 70, 88-89.) Nonetheless, defendants argue that the courts simply "assume" conspirators are principals without any statutory basis, and that in Hardy, unlike in the present case, it was appropriate to give a conspiracy instruction because the defendant in Hardy was actually charged with conspiracy. (Hardy, supra, 41 Cal.4th at p. 1026.)

Defendants' argument is unavailing because we are bound to follow the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.) Moreover, as Deshay's counsel acknowledged at trial, the trial court must give a conspiracy instruction sua sponte when the prosecutor is relying on evidence of an uncharged conspiracy in order to establish a defendant's liability as an aider and abettor. (People v. Washington (1969) 71 Cal.2d 1170, 1174; People v. Ditson (1962) 57 Cal.2d 415, 447; People v. Williams (2008) 161 Cal.App.4th 705, 709; People v. Remiro (1979) 89 Cal.App.3d 809, 842.) That is what occurred in the present case. Under the circumstances, the trial court did not err in giving the instruction.

V The court awarded defendant Deshay 212 days of presentence custody credit plus 106 days of conduct credit, for a total of 318 days of presentence credit.

Although unnecessary in light of this court's miscellaneous order No. 2010-002, defendant raises the issue of whether amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence custody credits, apply retroactively to his pending appeal and entitle him to additional conduct credits.*fn5 We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)

On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 3X 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; § 4019, subd. (g).)

The amendment effective September 28, 2010, which now supersedes the amendments effective January 25, 2010, does not state it is to be applied prospectively only. Consequently, for the reasons we concluded the amendments increasing the rate of earning presentence conduct credit, effective January 25, 2010, applied retroactively to defendants sentenced prior to that date, we similarly conclude the rate now provided in Penal Code section 2933 applies retroactively to all appeals pending as of September 28, 2010.*fn6

Accordingly, having served 212 days of presentence custody, defendant is entitled to 212 days of conduct credits.*fn7

DISPOSITION

Lipscomb's judgment is affirmed. Deshay's judgment is modified to reflect that he is entitled to a total of 424 days of presentence custody credits, consisting of 212 days of actual custody credit plus 212 days of conduct credit. As modified, Deshay's judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation.

We concur: BLEASE Acting P. J. ROBIE J.


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