APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA331929)
The opinion of the court was delivered by: Aldrich, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury found defendant and appellant Russell Mecano, a police officer, guilty of solicitation of prostitution, sexual battery by restraint, sexual penetration by force or duress, and sexual penetration under threat by a public official. In the published portion of this opinion, we consider and reject Mecano's contention that because he never explicitly requested sex for money, there was insufficient evidence to support his conviction of solicitation of prostitution. We find that Mecano's words, coupled with his overt acts, constituted sufficient evidence of the crime. In the unpublished portion of this opinion, we reject his remaining challenges to his conviction. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On October 20, 2007, Taylor P. was 18 or 19 years old and homeless, living on the streets of Santa Monica with her boyfriend, Eric A. That night, Taylor slapped a woman who approached Eric. Los Angeles Police Department (L.A.P.D.) Officers Mecano and James Matthews arrived. Mecano told Taylor she was in a lot of trouble, but he could help her out. Unsure what to think about what Mecano said, Taylor thought he was flirting with her and wanted to have sex.
Along with their bikes, Taylor and Eric were taken to the West Los Angeles (West L.A.) police station. While Taylor was alone in a holding cell, Mecano told her she would be charged with battery, but he could get her out of a bad situation and get her "O.R'd" (released on her own recognizance). He told Taylor, however, she would owe him.
Officer Matthews and Mecano transported Taylor to Pacific Division Station for booking. After Taylor was booked, she was alone with Mecano in the patrol car, although Officer Matthews, who was doing paperwork, would come and go. Mecano asked Taylor, in a "flirting kind of way," where she lived and how he could find her. She told him she lived behind the wall on one side of Meth Mountain in Santa Monica. Mecano said that Taylor's boyfriend wasn't good enough for her, and she should be treated better. Mecano would take her out, "wine and dine" her, and treat her right. Not wanting to ruin her chances of being released, Taylor went along with him.
Although Eric remained detained based on warrants, Taylor was released on her own recognizance. Back at the West L.A. station, Mecano ordered a cab for Taylor at about 1:30 a.m. and he gave her $200 in crisp $20's, saying he would be "fucking pissed" if she "burn[ed]" him for the money. He told her to go to a nearby Holiday Inn, to give his name to someone at the front desk, to get a room, and to take a shower and to wait for him. He would come after his shift to see her. Although Mecano didn't say why he was coming to the motel, Taylor thought it was to have sex with her.
When the taxi arrived, Taylor told the driver to take her to the beach. The cab driver, Narbey Savadian, testified that Taylor was upset. She told him that the "policeman" gave her money and she was supposed to go to the Holiday Inn. She was afraid of the policeman, who she thought was following them. Savadian assured her they weren't being followed. After having Savadian take her to Pacific Coast Highway, Taylor hid from a person with a flashlight, thinking it was Mecano looking for her.
Mecano called the taxicab company four times in the early morning to ask for Taylor's final destination. He was told that the driver would call him. When the driver did not call him, Mecano called the taxicab company again and said he needed an "exact address where she's gonna end up staying." The next day, someone identifying himself as a policeman called Savadian and asked if he had dropped off the girl where he was supposed to. Savadian told the caller he'd taken Taylor to Pacific Coast Highway.
Taylor told two officers what happened to her. Homeless Liaison Police Officer Jacob Holloway testified that Taylor told him an Asian sergeant*fn2 released her and gave her $200 to go to a hotel, where she should take a shower. This "sergeant" warned Taylor not to burn him. Officer Holloway told Taylor to report the incident.
Sergeant Joy Smith testified that, on March 16, 2008, Taylor told her that Mecano said he could get her "O.R'd," but she would "owe" him.*fn3 He gave her $200 in $20 bills and ordered a cab for her, telling her to go to the Holiday Inn up the street. He would meet her there when his shift was over at 6:00 a.m. Mecano told her she was good looking and he wanted to be with her. After being dropped off at the beach, she saw Mecano with a flashlight. Taylor knew it was him because he was "Asian looking," and she knew his voice.
On the evening of May 28, 2008, Alexandria H. (Alex), then 18, was at Pacific Palisades Park with Jacob Colman (Colman), Ben W., Audrey L., and Anna F. Audrey, Anna, and Ben were minors. Some members of the group were smoking marijuana. When Officer Mathews and Mecano arrived, Colman was arrested.
Needing a female officer to search the minor girls, Mecano called for additional officers. Officers Alan Parra and Georgina Villalobos arrived, and Villalobos searched Audrey and Anna. Villalobos handed a purse to Mecano, who walked away with it. According to Officer Parra, Mecano threw marijuana he found in the purse into a trash can. Officers Parra and Villalobos left, taking the two minor girls with them. At some point, Ben left with his mother.
Mecano asked Alex what was going on, and she told him she had a marijuana pipe and marijuana. Mecano found the pipe in her purse, but he left it there. She gave him her driver's license, which had a restriction. Mecano told Alex she was responsible for the minors' actions and that her car could be impounded.
Mecano repeatedly asked what Alex would do if he let her go. When Alex answered she was just telling the truth, Mecano blatantly asked if she would hook up with him if he let her go. Terrified, Alex said yes, maybe. He asked if she had money to meet him at a hotel when he got off his shift at 6:00 a.m., and he mentioned several places they could meet, including the Holiday Inn. Although Alex indicated she would go along with Mecano, she never intended to meet him.
Saying he wanted to know if she was "for real," Mecano walked Alex towards a building, adding that he could "tell the good ones from the bad ones."*fn4 With Alex's back against a wall, Mecano kissed her. He put his hands up her shirt and touched her breast. He unzipped her pants and put two fingers into her vagina. To stop him, Alex put her hands on his chest, saying they could do this later. Mecano told Alex he would keep her driver's license until she met him at the hotel. She wrote her cell phone number on a white card for him, and he gave her his phone number, which she wrote on her hand. Without having been given any citation, Alex left.
Crying, she called Ben and told him that she'd let Mecano do things to
her, and she felt dirty. Alex called 411 and told a Pasadena police
officer that she just had an "incident" with a police officer,
"Rusty," in which he let her "off," and "bribed me with sex." She
told the Pasadena officer, "[h]e wants to meet me at a hotel room at
6:00 in the morning." Alex also called her mother and told her what
happened. While talking to her mother, someone tried to call her, but
she didn't answer it because she thought it was Mecano. She answered
it once and it was Mecano, who had left her a voicemail message.*fn5
She told him she was on her way home. When Alex got home, her
mother was on the phone with the police department. Alex told the
watch commander that an officer named Rusty or Russ assaulted her.
Several hours later, detectives arrived at her house and she told them
That same night, swabs were taken from Alex for DNA testing. Swabs were also taken from Mecano's hands. A DNA profile was obtained from his right hand, and Alex could not be excluded as a minor contributor to the mixture. The probability of randomly selecting a Caucasian who fit that profile was 1 in 8,842. Swabs from Mecano's police car contained a mixture of at least three, most likely four, people. Alex and Mecano could not be excluded as potential contributors to the mixture. In the Caucasian population, the probability of randomly selecting an individual and being able to include them in the mixture was 1 in 1,328.
Anna testified that she was at the park that night to hang out and smoke. Although she did not go to the park to sell marijuana and did not recall anyone discussing buying or selling marijuana that night, she and Audrey had, in the past, pooled money to buy drugs. She saw Mecano walk away with Audrey.
Ben initially testified that everybody at the park smoked except him and Alex, and he tested negative for drugs. Then Ben admitted that he smoked marijuana at the park and faked his drug test. After he left the park that night, Alex called him. Crying, she told him an Asian officer kissed her and wanted to meet her at 6:00 a.m.
Mecano testified. With respect to the May 28, 2008 incident, Alex told Mecano she didn't want to go back to "rehab." Mecano did tell Officer Parra that Audrey had some "shit" in her purse and, feeling that Audrey was in enough trouble due to curfew, he advised her to throw it away. Mecano admitted walking about 60 feet with Alex, but only because she wanted to tell him something. They exchanged phone numbers because Alex wanted to tell him over the phone. After Alex left the park, Mecano called her to follow up.
As to the October 20, 2007 incident with Taylor, when Mecano first came into contact with her, he merely told her why she was being arrested. He transported her to the West L.A. station, where he advised the watch commander that Taylor was eligible for release on her own recognizance. He went to Taylor's holding cell to clear up what would be in the report. After Taylor was booked at Pacific Station, Mecano's partner went into the station to retrieve some papers, leaving Mecano alone with Taylor. Mecano did not tell Taylor he wanted to date her, wine and dine her or have contact with her after her release. Instead, Taylor told him she was homeless, she lived at Meth Mountain, and she was a "cutter."
When they returned to the West L.A. station and Taylor was getting ready to go, she became upset because one of her bikes was damaged. To avoid an altercation with her, Mecano called a taxi and withdrew from the station's ATM machine $200, $40 of which he gave to Taylor for the taxi fare. Taylor asked where she should go, and he told her she could go to the Holiday Inn. He did not tell her to take a shower at the motel and to wait for him. He did not go to Meth Mountain to find ...