California Court of Appeals, Fourth District, Third Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[256
Cal.Rptr.3d 462] Appeal from a judgment of the Superior Court
of Orange County, David A. Hoffer, Judge. Affirmed. (Super.
Ct. No. 15NF1695)
Page 271
[Copyrighted Material Omitted]
Page 272
COUNSEL
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.
Page 273
[256
Cal.Rptr.3d 463] 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
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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, 233 Cal.Rptr.3d 701');">233 Cal.Rptr.3d 701 (Shields ) and
the majority in People v. Moses (2019) 38
Cal.App.5th 757, 251 Cal.Rptr.3d 462');">251 Cal.Rptr.3d 462, 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 [256 Cal.Rptr.3d 464] 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
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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. [256 Cal.Rptr.3d 465] 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
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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.
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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 [256 Cal.Rptr.3d 466] 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."
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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 [256 Cal.Rptr.3d 467] 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
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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,
233 Cal.Rptr.3d 701');">233 Cal.Rptr.3d 701, 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 [256
Cal.Rptr.3d 468] "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.
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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 ...