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The People v. Mark Swagerty

September 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK SWAGERTY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F05359)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Swagerty

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury convicted defendant Mark Swagerty of causing, inducing, persuading, or encouraging L.F., a person under age 16, to become a prostitute (Pen. Code, § 266i, subd. (b)(2); count one; hereafter "pandering")*fn1 and attempting to derive support from the earnings of a prostitute under age 16 (§§ 266h, subd. (b)(2), 664; count two; hereafter "attempted pimping").*fn2 The trial court found that defendant had served two prior prison terms. (§ 667.5, subd. (b).) He was sentenced to state prison for 10 years, consisting of the upper term of eight years on count one plus two years for the prior prison terms. A concurrent upper term of four years was imposed on count two. Defendant was ordered to register as a sexual offender for the rest of his life. (§ 290 et seq.)

On appeal, defendant contends the trial court erred by failing to instruct the jury sua sponte (1) that co-defendant Stephanie Nicole Peterson was an accomplice as a matter of law, and (2) on lesser included offenses of count one.*fn3 He also claims (3) the judgment must be reversed with directions to hold a Marsden*fn4 hearing; (4) the concurrent sentence on count two must be stayed pursuant to section 654 (the Attorney General concedes this point); and (5) the order for mandatory lifetime sex offender registration violates principles of equal protection. We shall modify the judgment.

FACTS

Prosecution Case-in-Chief

On January 15, 2009, parole agent John Edelman was working undercover with a Federal Bureau of Investigation (FBI) task force that targets juvenile prostitution. On that night, Edelman was responding to Internet advertisements for dates with prostitutes. At approximately 9:00 p.m., he responded to an advertisement for a prostitute named "Erotica," who directed him to meet her at a Sacramento motel room. When he arrived at the room, Stephanie Peterson answered the door and identified herself as Erotica.

Upon entering the motel room, Agent Edelman heard the sound of a person in the bathroom whom Peterson identified as her "homegirl." Edelman asked to see the girl and, when Peterson opened the bathroom door, he saw 14-year-old L.F., who was preparing to take a shower.*fn5 L.F. closed the door after telling Edelman that she was getting ready for the next person.

Agent Edelman then returned to Peterson to discuss her fee; they agreed to an hour for $160. While they were negotiating, Peterson's cellular telephone kept ringing. She answered the phone, looked at Edelman with a surprised expression, and walked to the window. Peterson told the caller that she did not see any police outside. Then she hung up the phone, looked at Edelman, and asked him if he was a police officer; he told her no. Peterson then asked Edelman to lift his shirt and take down his pants, which he did. Next she asked him to uncover his private parts, which he refused to do. After hearing a knock, Peterson opened the motel room door and task force members took her into custody.

In the ensuing investigation, law enforcement learned that L.F. had met defendant through a social networking Web site. On January 9, 2009, defendant had sent L.F. a message introducing himself and inviting her to join his adult entertainment business, "Xtreme Girls Adult Entertainment." He wrote that he had seen L.F.'s photograph and that she was "hot hot hot." He explained that he was looking for someone interested in "dating - domination - fetish - escorting - body essentials - exotic shows - strippers - catering and hosting & business occasions." He added that she must be age 18 or older; that she would be required to provide identification; that he was interested in talking to her; and that, if she were interested, she should send him a photograph and contact information.

Shortly after receiving defendant's message, L.F. responded that she was "only 15." Defendant replied that it was not a crime for them to talk. L.F. told defendant that she wanted to become a porn star.

Defendant and L.F. continued trading messages. She gave him her telephone number, and she stored his telephone number in her cellular telephone under the name "Daddy." They exchanged photographs and spoke about her working for him. He told her that he would set her up with someone who would help her become a prostitute. She understood that she would split her earnings with him.

On January 14, 2009, defendant arranged a three-way telephone call between himself, L.F., and Peterson. The next day, L.F. met Peterson at a grocery store in Sacramento. Peterson and her client, "Roc," picked up L.F. and took her to the Sacramento motel. L.F. did not know Roc, but she remembered seeing Peterson walk down a high-prostitution area of Watt Avenue. When she was picked up, L.F. knew that they were going somewhere to prostitute but she did not know where it would be. After they arrived at the motel, the two women went inside while Roc waited outside. Peterson prepared to meet a client. L.F. went to the bathroom to shower while Peterson was with her client. However, the FBI arrived before L.F. met with any clients or engaged in prostitution. A search of her pocket yielded a note containing defendant's telephone number and the word "Daddy."

At trial, L.F. could not remember if there had been any plans for her to meet with clients that night. She testified that defendant was her pimp and admitted that she had never met him in person. Their only contact was via the Internet and telephone.

L.F. testified that she had never been a prostitute prior to January 15, 2009. She remembered telling an FBI agent that she and her best friend had engaged in sex with the understanding that he would pay her some money. However, she did not remember whether the sexual act had actually occurred.

L.F. did not remember telling the FBI agent about other occasions when she had had sex with strangers at a motel on Watt Avenue; nor did she remember whether those events had occurred. However, L.F. admitted that she had falsely accused a man of forcing her to have sex with him. She explained that she had been scared and, when she is scared, she occasionally does not tell the truth.

Peterson testified at trial. She was serving an 18-month prison sentence for her conviction in this case in accordance with her agreement with the district attorney's office. She admitted that she had several prior convictions for prostitution and other crimes of moral turpitude.

At the time of her arrest, Peterson was working as a prostitute. She advertised her services by walking the street and by placing advertisements on the Internet. Peterson was living at a motel and was earning $100 to $500 per day from prostitution.

On January 15, 2009, Peterson and Roc picked up L.F. and brought her back to Peterson's motel room. Roc waited outside the room because he was going to be Peterson's next customer after Agent Edelman.

Peterson discussed the circumstances of her introductions to defendant and L.F. In December 2008, a mutual contact introduced Peterson to defendant. They exchanged photographs and communicated by email, telephone, and text messaging. The two met in person a couple of times and had sex. They also spoke by telephone about money. Defendant became her pimp and referred clients to her. She was supposed to give him all of the money from her encounters. However, on some occasions, she secretly kept some of the money. When he learned of her deception he became upset. However, they both remained interested in making money. They agreed to help L.F. become a prostitute and to split the proceeds equally.

On January 13, 2009, defendant left Peterson a message stating that, in her words, L.F. was "ready to ho, ready to become a slut." Defendant and Peterson planned to photograph L.F., advertise her as a prostitute on an Internet site, and set up some dates for her. The next day, defendant sent Peterson a text message confirming that L.F. was ready to be a prostitute. Defendant gave L.F.'s telephone number to Peterson and told her to pick up L.F. Peterson called L.F. and they agreed to meet on January 15, 2009, at approximately 9:00 p.m. At the chosen time, Peterson picked up L.F. and took her to the motel room where they were taken into custody. Later that night, defendant sent several text messages to Peterson, attempting to contact her and find out what she was doing.

Although Peterson initially told law enforcement that she had never met defendant and that he was not her pimp, Peterson testified at trial that she made those statements to protect defendant.

Sacramento Police Detective Jeff Morris testified as an expert in pimping, pandering, and prostitution-related cases. He explained that pimps seek out younger girls to become prostitutes because they make more money for the pimp, they are easier to manipulate and control, and they rely on the pimps to rent motel rooms and drive them around. Pimps commonly use flattery and compliments, as well as promises of money and opportunities, to manipulate and induce young girls to become prostitutes. Based on his investigation, experience and training, Detective ...


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