People v. Clark

          Appeal from a judgment of the Superior Court of Orange County No. 15NF1695, David A. Hoffer, Judge. Affirmed.

          Cathryn L. Rosciam, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          IKOLA, J.

         A jury convicted defendant Donald Levan Clark of human trafficking of a minor (Pen. Code, § 236.1, subd. (c)(1) (section 236.1(c)); count 1), ^[1] attempted pimping of a minor (§§ 664, subd. (a), 266h, subd. (b)(1); count 2), and pandering (§ 266i, subd. (a); count 3). The court sentenced defendant to a total state prison term of 16 years as follows: (1) the middle term of eight years on count 1, which was doubled to 16 years pursuant to the “Three Strikes” law; (2) the middle term of two years on count 2, which was doubled to four years pursuant to the Three Strikes law; and (3) the middle term of four years on count 3, which was doubled to eight years pursuant to the Three Strikes law. Sentences on counts 2 and 3 were stayed pursuant to section 654. The court also struck defendant's prison prior, ordered defendant to register as a sex offender, and required defendant to pay a $300 sex offender fine, $120 in court operations fees, and a $90 criminal conviction assessment.

         Defendant raises six primary issues on appeal. First, he contends there was insufficient evidence to sustain his conviction for human trafficking of a minor because the victim was not a real person or minor. Second, he claims there was insufficient evidence to sustain his conviction for attempted pimping. Third, he argues the court improperly admitted prejudicial evidence that he was pimping and pandering other women. Fourth, he contends the People's expert witness improperly opined defendant was guilty of the charged crimes and usurped the jury's fact-finding function. Fifth, he claims his confrontation and due process rights were violated because he could not effectively cross-examine the People's expert witness. Finally, he argues the court erred by failing to instruct the jury on an essential element of human trafficking of a minor.

         We disagree with all of defendant's contentions on appeal and affirm the judgment in full. In doing so, we part company with our colleagues in People v. Shields (2018) 23 Cal.App.5th 1242 (Shields) and the majority in People v. Moses (2019) 38 Cal.App.5th 757, review granted November 26, 2019, S258143 (Moses). Section 236.1(c) has two distinct prongs. The statute is violated when a person either (1) causes, induces, or persuades a person who is a minor to engage in a commercial sex act (the Completed Act Prong) or (2) attempts to cause, induce, or persuade a person who is a minor to engage in a commercial sex act (the Attempted Act Prong.) Shields and the majority in Moses held that a violation of the Attempted Act Prong of section 236.1(c) requires the target to be an actual minor, not a fictional minor impersonated by a police officer. We respectfully disagree with the court's reasoning in both cases and hold that a person violates the Attempted Act Prong of section 236.1(c) by engaging in the prohibited conduct whether the target is an actual minor or not.

         FACTS

         The Incident

         Happy Medina, an Anaheim police officer, worked as an investigator for the Orange County human trafficking task force and investigated crimes related to human trafficking. As part of his duties, he maintained a Facebook page posing as a fictional 17-year-old female named Jessica Bryant. Jessica's Facebook page suggested she was a prostitute and included posts related to pimping and prostitution.

         On May 25, 2015, defendant sent a message to Jessica using a Facebook account. After Jessica responded, defendant replied, “My name is P Famous Da Great.” He asked her, “How's your situation?” She responded, “Hoes don't get holiday pay.” He then asked her how old she was, and she said 17 years old. Defendant asked when she would turn 18, and she responded, “Not soon enough.” He told her he would be 25 years old in the following month.

         On May 27, 2015, defendant sent another Facebook message to Jessica. He said, “I'm waiting on you.” Jessica responded she had “ten toes on the ground, ” which was a reference to prostitution. She also asked what defendant wanted from her, and he responded, “Your loyalty, dedication and your trust.” Defendant promised to give her the same. Jessica then asked about defendant's “price tag, ” and he said it was $2, 500. At trial, Medina explained this referred to a “choose up fee, ” which is a fee a prostitute pays to a new pimp to work with him. When Jessica told defendant his fee was too high, he responded he was “hoeless” but “2500 was [his] fee in 2011 when [he] was seven deep, so [he was] not [going to] change it now.” She asked defendant how much he expected her to make a night, and he answered, “500 plus.” Defendant gave his phone number to her and told her to call him. Medina searched the phone number online and found an advertisement with defendant's phone number on a Web site advertising prostitution services.

         On May 29, 2015, defendant contacted Jessica again and said “S.M.M.F.P.F.H.” Medina interpreted this to mean “shake my mother fucking P Famous head.” Jessica told defendant she was considering working with a different pimp who would take 10 percent of the choose up fee, which was $250. Defendant said he was willing to do the same.

         On May 31, 2015, Jessica asked defendant, “W Yo' plans for me? Track shit or da back page?” Defendant responded both but that he prefers the track, which is an area where prostitutes solicit business. Defendant told Jessica to “choose up, ” “come to [Los Angeles], ” and “stay down for his crown” (i.e., give him her loyalty). Defendant called her a “hoe” and said it would just be the two of them until he had the opportunity to “knock another bitch.” Jessica asked defendant for a photograph, and he sent a photograph showing him lying on a bed with money on his chest and stomach. He also sent a photograph of him smiling and asked Jessica for a photograph. Medina sent a manipulated photograph of a female and repeated she was 17 years old. Defendant answered, “C.T.F.U. [crack the fuck up] Yeah. Okay, lil' hoe.”

         Over the next few days, Jessica told defendant she had a fight with her mother and had an aunt who was on her death bed. She said she was going to go to San Diego. Defendant said, “Come to me.” On June 10, 2015, defendant contacted Jessica and asked where she was. She said she was back home from San Diego, and defendant responded he was still waiting on her and encouraged her to go to Los Angeles. Jessica asked if defendant would help her buy a car because she was only 17 years old. He agreed and said, “Just come down.”

         Jessica later sent a message to defendant and tried to negotiate a better choose up fee. Defendant said he wanted $500. After Jessica responded this was not what they had originally discussed, defendant called her a “hoe” and “fake ass bitch.” Jessica then told him to “have a nice life” and suggested she had intended to send a $250 choose up fee to defendant. He told her to bring the money to him before he “find[s] [her] and beat[s her] ass.” He also said he had “knocked two hoes the night prior” and had “another one planning to come from Oregon soon.” Defendant then said she could bring the choose up fee to him in person or send it through PayPal. He explained she could get a PayPal account at a 7-Eleven store and gave specific instructions about how she could get a PayPal card.

         On June 13, 2015, defendant contacted Jessica again. At one point, defendant said he did not “have any other hoes at that time and... wanted [her].” He told Jessica she could send the choose up fee by getting a card at a CVS or Walmart store and sent a photograph of a PayPal card. They eventually agreed Jessica would go to a Walmart store and arrange a wire transfer. During this conversation, Jessica mentioned she had a 16-year-old friend named Kimmie. Defendant responded, “Tell Kimmie to choose up as well.” He said he expected both of them to be with him by his birthday and told Jessica to send a $400 choose up fee for both of them.

         On June 17, 2015, defendant and Jessica exchanged messages again. Medina then had a female officer call defendant and pretend to be Jessica. They talked about how long it would take Jessica to pay off the choose up fee and how much she could charge for certain sex acts. When Jessica asked how much she could make for a “blow job, ” defendant said she could make at least $60. She also asked if he would provide the condoms, and defendant agreed. Jessica eventually said she and Kimmie were at a Walmart store where they were arranging to send the choose up fee to defendant. She said she would go to Los Angeles to meet defendant the next day, and defendant gave her instructions on how to take a bus to Union Station where he would pick her up. Jessica reminded defendant she was 17 years old and Kimmie was 16 years old. Defendant said he “[did not] care about none of that.” After the call, Medina wired the money to defendant and asked if defendant received the money. Although defendant suggested he received the money, he was arrested the next day before he actually picked up the money.

         The Court's Evidentiary Rulings

         At trial, the court admitted three categories of evidence at issue in this appeal. First, the court admitted defendant's text messages with third parties. Medina testified about each of these conversations. In one conversation, defendant encouraged a woman in Oregon to come to Los Angeles and work for him. He told her his choose up fee was $2, 500 and said she could make $1, 000 a night in Las Vegas. He also told her he had been pimping for five years and had worked in more than seven states.

         In another conversation, defendant communicated with a woman named “Lele, ” a prostitute who formerly worked for defendant. Defendant told Lele to “[g]et a fee and come home.” Defendant also told her he had three other women and “the Snow Bunny” coming over on his birthday. Medina explained a “snow bunny” is a white prostitute and believed this was a reference to Jessica. When Lele indicated she was not interested in working for defendant, he threatened her and said he had other girls working for him.

         Defendant exchanged messages with another woman named Destiny, a prostitute who formerly worked for defendant. Destiny complained about how defendant treated her while he was her pimp. Defendant told her he was a pimp and tried to convince her to work for him again.

         Defendant also had conversations with several unidentified women. In one conversation with a woman he met on Facebook, defendant told her he was a pimp and encouraged her to be his prostitute. In another conversation, defendant told a woman to come to the track and work for him. He also communicated with a woman named “Passion.” He told her to stop using that name and asked her to choose a “Young Compton P.” In another conversation, he told a woman, “If you make 200 tonight, we gonna get you some heels tomorrow.” Defendant also told her to be mindful of the time she was taking with each sex purchaser because “any extra time is more money.”

         Finally, defendant exchanged messages with another pimp. They talked about certain prostitution areas and referred to each other as “P.”

         In admitting the text messages, the court required the People to redact certain information, including references to defendant being on parole and a “concession” regarding defendant's “past.” The court found the text messages were probative of defendant's intent in communicating with Jessica who was a fictional minor. The court explained: “[T]he jury has got to decide whether there is an innocent explanation for this or whether... these communications on Facebook [with Jessica] indicate an attempt to induce somebody to engage in commercial sex.” The court further stated: “[Y]ou've got to be able to look at [defendant's conversations with Jessica] in context to understand what the intent is behind them. And I think the only way to do that is to know the whole context.... These text messages are tremendously probative on that point....” According to the court, defendant used “language [in the text messages] and discuss[ed] things which would show that he's really immersed in... the culture of prostitution. There are even instances where he basically just says I'm a pimp, and I think that those give context to what he might be talking about in these... Facebook discussions with somebody who he allegedly believed was underage.”

         In weighing the probative value and prejudicial effect of the text messages, the court noted there was a risk the text messages “might convince the jury to find [defendant] guilty” based on his past conduct. The court acknowledged it was a “close question” but ultimately found the prejudicial impact and probative value were in “equal poise.”

         Second, the court admitted defendant's posts on his Facebook and Instagram accounts, which included photographs and memes^[2] related to pimping and pandering. The court found the evidence was “highly relevant” to show “what [defendant's] intent was when he was speaking with the fictitious Jessica... encouraging her to work for him.” The court also found the probative value outweighed the prejudicial impact and required the parties to agree upon redactions.

         Third, the court admitted certain photographs and videos retrieved from defendant's cell phone. The court excluded all photographs that were duplicates of defendant's posts on Facebook and Instagram. The court also excluded all photographs depicting defendant with large amounts of money. The court admitted a photograph of defendant holding around $200 while lying on a bed. Because defendant had sent this photograph to Jessica, the court found it was relevant. The court also admitted two additional photographs: (1) a photograph that said “Fly Guy P Famous the Great and Stay Down, Bitch”; and (2) a photograph of defendant with several memes, including one meme that said “Faggotville Population: You.”^[3] The court found these photographs show defendant was “involved in the lifestyle of pimping” and contained many of the terms Medina had defined for the jury.

         With respect to the videos, the court excluded two videos but admitted one video that showed defendant counting $60 while talking about “big racks, ” a reference to making money through prostitution. Although the video was prejudicial, the court found it was “powerfully probative” because it gave “meaning to the conversations that [defendant had] with [Jessica].” Because the video did not show defendant committing a crime and involved a small amount of money, the court held the prejudicial impact did not substantially outweigh the probative value.

         The court also excluded another video depicting defendant with a large sum of money in his hands but allowed the People to play the audio. The court redacted portions of the audio and admitted the remainder because “the discussion of pimping and the culture of pimping is more relevant than it is prejudicial.” According to the court, the audio “allows the People when combined with all other evidence including the text messages and the photographs to present their case the defendant is deeply involved in the lifestyle of pimping without creating the potential for the jury to find the defendant guilty because of other pimping....”

         DISCUSSION

         Defendant's Conviction for Human Trafficking of a Minor

         Relying principally on Shields, supra, 23 Cal.App.5th 1242, defendant argues the evidence is insufficient to sustain his conviction for human trafficking of a minor because Jessica was not a minor - she was a fictitious person. He contends the People had to prove Jessica was an actual minor under 18 years of age because they charged him with the completed offense of human trafficking of a minor. The People disagree, claiming the plain language of section 236.1(c) does not require an actual minor. They argue the statute “incorporate[s] attempts into the definition of the criminal offense and thus provide[s] punishment for those attempts.” Because the commission of an attempt does not require proof of any specific element of the completed crime, the People contend the attempt prong of section 236.1(c) can be violated when there is no actual minor. The People also argue a finding that no actual minor is required comports with the electorate's intent in enacting Proposition 35, the Californians Against Sexual Exploitation Act (CASE Act).

         The People have the better argument. We hold that the electorate, in adopting the CASE Act, defined the single crime of human trafficking of a minor in two separate ways - an attempted act and a completed act - each of which it chose to punish identically.^[4] The phrase “attempt to commit a crime” is a well-established term of art in the criminal law. It is also well-established that the defense of factual impossibility is foreclosed when the proscribed unlawful act is charged as an attempt. Thus, where the act is attempted, but not completed, defendant may not rely on factual impossibility as a defense. Accordingly, the existence of an actual minor is not required where defendant is charged with an attempt under the statute.

         We start with the words of the statute. Section 236.1(c) provides: “A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of [s]ection 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking.”^[5] Plainly, the statute has two distinct prongs. The statute is violated when a person either (1) causes, induces, or persuades a person who is a minor to engage in a commercial sex act (the Completed Act Prong) or (2) attempts to cause, induce, or persuade a person who is a minor to engage in a commercial sex act (the Attempted Act Prong). The punishment for violation of either prong is identical, and includes a state prison term of 5, 8, or 12 years (§ 236.1(c)(1)), or 15 years to life if the offense involves force, fear, fraud, deceit, violence, duress, menace, or threat of unlawful injury to the victim or to another person (§ 236.1(c)(2)). Here, the People pursued defendant's conviction under the Attempted Act Prong of the statute - the prong that has generated confusion and the interpretation of which results in our departure from the reasoning of our colleagues in Shields, supra, 23 Cal.App.5th 1242 and the majority opinion in Moses, supra, 38 Cal.App.5th 757, review granted.

         The factual backgrounds in both Shields and Moses are, for purposes of analyzing the issue before us, essentially identical. In Shields, the defendant became friends with a fictional 17-year-old prostitute through her Facebook page, which was created by an undercover officer. (Shields, supra, 23 Cal.App.5that p. 1244.) Defendant's relationship and conversations with the fictional minor ultimately led to his arrest. (Id. at p. 1247.) In reversing his conviction, the court held the third element of the offense - the victim must be under 18 years of age - could not be satisfied because the victim was not an actual minor. (Shields, at p. 1256.) In Moses, the defendant also communicated with a fictional 17-year-old prostitute through an Internet site. (Moses, supra, 38 Cal.App.5th at pp. 759-760, review granted.) Those conversations with the fictional minor also ultimately led to his arrest. (Id. at p. 760.) As in Shields, the majority of another panel of this court likewise reversed the conviction because the victim was not an actual minor. (Moses, at p. 759.) We disagree with the analysis in Shields and the majority opinion in Moses.

         We begin with a seemingly simple definition. Section 21a defines the phrase “attempt to commit a crime” thusly: “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” The Penal Code guides our interpretation of its provisions. Section 7, subdivision (16) provides that “[w]ords and phrases must be construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, must be construed according to such peculiar and appropriate meaning.” (Italics added.) The phrase “attempt to commit a crime” (§ 21a) as used in the criminal law, is one of those words that has “acquired a peculiar and appropriate meaning in law, ” and accordingly “must be construed according to such peculiar and appropriate meaning.” (§ 7, subd. 16; cf. In re Estate of Kirby (1912) 162 Cal. 91, 93 [word “murder” is a technical word that “has acquired a peculiar and appropriate meaning in the law”].) “[W]hen a word used in a statute has a well-established legal meaning, it will be given that meaning in construing the statute. This has long been the law of California: ‘The rule of construction of statutes is plain. Where they make use of words and phrases of a well-known and definite sense in the law, they are to be received and expounded in the same sense in the statute.'” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 19.) As used throughout the Penal Code, therefore, an “attempt to commit a crime” embodies both “a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a.)

         Despite the ubiquitous use of the attempt to commit a crime language in the Penal Code as having the meaning ascribed to it in section 21a, the court in Shields, and the majority opinion in Moses, held the phrase had a different meaning in section 236.1(c). Those courts held that the attempt to commit the crime of causing, inducing, or persuading a person who is a minor at the time of commission of the offense to engage in a commercial sex act meant something more than required by section 21a - the existence of an actual minor. In effect, those courts rewrote the Attempted Act Prong of section 236.1(c) to require proof of an element of the completed crime, in derogation of section 21a which does not require such proof. (Shields, supra, 23 Cal.App.5th at p. 1250 [referring to the “false premise that section 236.1(c) criminalizes an attempt to commit a crime”]; Moses, supra, 38 Cal.App.5th at p. 761 [“We find the Shields analysis persuasive concerning the distinction between a traditional ‘attempt' crime and the discrete crime described in section 236.1(c)”], review granted.)

         Defendant has not identified any section of the Penal Code that uses the word “attempt” or the phrase “attempt to commit a crime” to mean something other than the definition in section 21a. And we are aware of only one such instance. Section 240 defines the crime of assault this way: “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Italics added.) In considering this statutory definition of assault, our Supreme Court noted that despite the definition's use of the word “attempt, ” the crime of assault is recognized to be a general intent crime, thus making the definition of “assault” seemingly inconsistent with the statutory definition of “attempt” which requires a specific intent. (People v. Colantuono (1994) 7 Cal.4th 206, 216, abrogated by statute on another ground as stated in People v. Conley (2016) 63 Cal.4th 646, 660, fn. 4, italics added.) The Court explained that “the Legislature of 1872 used the reference [to attempt] only in its ordinary sense, not as the term of art we currently conceptualize, i.e., a failed or ineffectual effort to commit a substantive offense.” (Ibid.) Here, we do not have a historical anomaly “developed at an earlier day than the doctrine of criminal attempt in general....” (Colantuono at p. 216.) We have instead language chosen by the electorate in 2012, some 26 years after ...