(Super. Ct. No. 08F09282)
The opinion of the court was delivered by: Blease , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant and Siama Rivera were arrested in a sting operation after a team of Sacramento police officers investigating child prostitution saw an ad on Craigslist for a 14-year-old girl (Kimberly J.) they had previously encountered in a prostitution sting. As a result of evidence uncovered at the hotel room where the sting took place, evidence uncovered in defendant's car, and of Kimberly J.'s preliminary hearing testimony and statements to officers, defendant was convicted of pimping a minor (count 1), pandering a minor (count 2), photographing a minor involving sexual conduct (count 3), possession of child pornography (count 5), intercourse with a minor age 14 or younger (count 6), lewd act (sexual intercourse) with a minor age 14 or younger (count 7), providing marijuana to a minor (count 8), lewd act (oral copulation) with a minor age 14 or younger (count 9), and lewd act (digital penetration) with a minor age 14 or younger (count 10). The trial court sentenced defendant to a prison term of 19 years 4 months.
Defendant argues his federal Sixth Amendment right to confront the witnesses against him was violated because the trial court admitted the videotaped preliminary hearing testimony of Kimberly J., even though she was not constitutionally unavailable. He argues she was not constitutionally unavailable because the prosecution did not exercise due diligence in attempting to secure her presence at trial. We shall conclude the prosecution's efforts were reasonable, good faith efforts that were timely commenced.
Defendant also argues there was insufficient evidence of pandering, that his sentence for furnishing marijuana to a minor should have been stayed pursuant to Penal Code section 654*fn1 , that the trial court abused its discretion in refusing to dismiss his prior strike conviction, and that the trial court did not exercise its informed discretion when it imposed consecutive sentences for counts 9 and 10.
We shall remand for the trial court to reconsider its sentencing choice on counts 9 and 10 because it is unclear whether the court understood that consecutive sentences were discretionary on those counts. We shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2008, the Sacramento Police Department's vice unit was examining Web sites trying to locate juveniles involved in prostitution. On April 8, Detective Derek Stigerts recognized a girl on Craigslist with whom they had dealt the prior year, when she was 13 years old. The girl's name was Kimberly J., and she was using the same false name, "Sparkle," she had used previously. Other ads associated with the same phone number showed Kimberly J. with another female. One of the ads read, "Come relax and unwind with us, two is better than one, Sparkle and Cinnamon." The wording was typical of a prostitution ad.
Stigerts set up a "date" with the two girls. They made plans to meet at a Jack In the Box, where one of the girls, "Cinnamon," got into the car with the undercover officer, then went across the street with him to a motel. This procedure is typically used by prostitutes to see if the persons they meet are law enforcement and to ensure their own safety. Officer Corey Morgan was pretending to be the John (customer), because Kimberly J. knew Detective Stigerts from their previous encounter.
"Cinnamon," i.e., co-defendant Siama Rivera, informed Officer Morgan there would be two girls. Kimberly J. was inside the motel room. Rivera seemed nervous, and asked Morgan if he were a cop. She began touching his chest, stomach, and waist. Morgan lifted his shirt and turned around in a circle to show her that he was not wearing a wire. Rivera told Morgan to "show her [his] dick." She then grabbed his penis through his pants. Morgan asked if she had any condoms. Rivera said that he could get a massage and a dance. Morgan said, "from both of you?" He motioned to Kimberly J., who nodded "yes." They told him it would cost $250. Rivera then got a call on her cell phone. When she hung up she said, "all we do is massage and dance." She walked him to the door. When Morgan opened the door, other officers in the operation were waiting.
There were approximately 10 to 12 law enforcement officers working the operation. In addition to Officer Morgan, who went inside the motel room, there were surveillance officers spread out in the parking lot. Pimps are often in the parking lot or in other rooms in the motel. As several officers were approaching the room, a white Jaguar that was parked directly below the room quickly backed out of the parking space. Defendant was the driver of the Jaguar.
Officers stopped the Jaguar and found two cell phones inside. One of the phones contained a photo of Kimberly J. engaged in sexual activity. The officers also found a small amount of marijuana on defendant, a card key for the motel, a receipt for a different motel, and $130 cash.
In the motel room, officers found two packaged condoms, a backpack containing one-inch square baggies and men's boxer shorts, a size XXXL T-shirt, a starter kit for a Boost Mobile cell phone and a corresponding $20 phone card, a pair of men's shorts, two cell phones, a wireless Internet card two laptop computers, an address book and day planner, motel receipts in defendant's name, a photo of defendant holding a fan of money, an Amtrak receipt with the names of defendant and "Siama Olivo," and a large stack of DVDs including "Cross Country Pimping" and "Hustle and Flow." They found no cash in the room.
The officers also found a bag belonging to Kimberly J. The bag contained female clothing and other personal items, and included a pair of pink underwear that was "very similar" to the pink underwear worn by the girl featured on the Internet ads. The bag contained no illegal narcotics, no money, no computers, and no phones.
When Kimberly J. was picked up, she denied being involved in prostitution or knowing defendant. She admitted she knew the other woman in the room, whom she identified as "Cinnamon." She was taken to juvenile hall on an unrelated warrant. Kimberly J. was placed in a group home, from which she ran away and remained a runaway for approximately four months. After she returned and was interviewed, she said she was ready to tell the officers the truth and did not want to return to her old lifestyle.
Kimberly J. told Officer Pamela Rae Seyffert, who interviewed her, that she met defendant when she was on Watt Avenue near Interstate 80. She had a couple of cigars with her and wanted to get some marijuana. She saw defendant parked in his vehicle and approached him because she thought she might be able to get some marijuana from him. She told defendant she did not have a place to stay, and he offered her a room with him and his girlfriend at a Motel 6. She told defendant she was 18 years old.
She said that defendant took the photographs that appeared on the Internet. She said that during the time that she was with defendant and Rivera, she had walked the streets twice as a prostitute, and the rest of the time had posted on the Internet for customers.
Kimberly J. explained that when she and Rivera posted on the Internet, defendant would leave as it was getting close to the time for the John to show up. After the "date" was over, they would contact defendant via the Nextel phone. She said that all the money she and Rivera earned turning tricks went to defendant. She denied that he demanded the money from her, but said she would never think of not giving the money to him. Defendant bought her food, marijuana, and paid for the room.
Kimberly J. testified at defendant's preliminary hearing. She was 14 years old at the time. She testified she started working as a prostitute about two months before she met defendant. Another man had taught her how to do it. She then worked as a prostitute for three other people. She was 13 when she started. When defendant first took her home with him, they went to a Motel 6. That was where she met Rivera. She confirmed that during the time she was with defendant she worked as a prostitute and advertised on the computer. She also walked the street. She and Rivera both worked as prostitutes and put their money together in a certain spot in the motel room. She knew the money was going to defendant because the only way she could stay with him was to make money and do her part. She knew that she was going to start prostituting because she needed money and a place to stay, but she was not sure she ever actually talked to defendant about it.
Defendant and Rivera took pictures of her. She and Rivera posted them as ads on the Internet. Either Kimberly J. or Rivera answered the calls they received from the Internet ads. Whenever a "date" came to the motel, defendant would leave. After the "date" she or Rivera would call defendant on the phone she had been given. She had sex with defendant once. She had oral sex with Rivera more than once. Defendant provided her with food and marijuana, and paid for the motel rooms.
Kimberly J. gave testimony regarding a number of photographs that were later introduced. One was a staged picture taken by defendant of oral sex between Kimberly J. and Rivera. It was taken for the purpose of posting it on the Internet. There were other photos taken by defendant of Kimberly J. orally copulating Rivera, which were not staged photos. No one asked Kimberly J. to perform these sex acts; they just happened. Defendant was sometimes present, and sometimes was not present.
When Kimberly J. had spoken to a detective shortly after she was arrested, she had not wanted to admit knowing defendant because she did not want him to get into trouble for being involved in her prostitution. She was afraid he might go to jail for pimping and get into trouble for "messing with an underaged female." One of the rules of the street was that she was supposed to protect her pimp.
Detectives Stigerts and Morris gave expert testimony on the pimping of juvenile prostitutes. They testified that juvenile prostitutes are commonly advertised on Internet sites such as Craigslist. Detective Stigerts testified he had never seen a 14-year-old prostitute that worked without a pimp.
Detective Morris testified it was very common for pimps to have sexual relations with their prostitutes and furnish drugs to them. The authorities recover cell phones and computers in virtually every juvenile prostitution case. Computers are used to post Internet ads, and prostitutes communicate with their Johns via cell phones. It is common for juvenile prostitution to be advertised on the Internet, and Detective Morris testified he had never seen a juvenile prostitute advertised on the Internet using a motel room who did not have a pimp. Juvenile prostitutes are generally unable to put all of the parts of a prostitution operation together because they do not have identification, cars, or the ability to rent motel rooms.
It is common in juvenile prostitution cases to find photos such as those found on the cell phone in defendant's car. It is very common in juvenile prostitution cases to find photos of naked women in provocative poses. They are typically taken to be posted on the Internet, for the pimp's sexual gratification, to blackmail prostitutes, and to brag to others in the prostitution industry. It is very common in cases of juvenile prostitution to find photos on cell phones of money or someone holding money.
Also on the cell phone found in defendant's car were text messages. One read, "Did u make dat money 4 me?" This represented a communication between a pimp and a prostitute, and is common to find in juvenile prostitution cases. There were also recruitment-type text messages on the phone.*fn2 These are common because a pimp will browse the Internet looking for prostitutes and send them text messages.
Detective Morris was not surprised that no money was found in the motel room. The pimp usually keeps the money, because allowing the prostitute to keep money would divest him of control. A forensic analysis of one of the laptops recovered from the motel room revealed that someone had used it to visit the Craigslist Web site 373 times. One of the user's names on the computer was "Siama." The ...