California Court of Appeal May 1, 2025 No. E082356Unpublished
Filed 5/1/25 P. v. Titus CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082356
v. (Super.Ct.No. FSB18002017)
DOUGLAS KEVIN TITUS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed in part, vacated in part, and remanded.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin
E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury convicted Douglas Kevin Titus of one count of human trafficking Jane
Doe, a 16-year-old girl, by means of force, fear, fraud, deceit, coercion, violence, duress,
menace, or threat of injury (Pen. Code, § 236.1, subd. (c)(2)), one count of pimping Doe
(Pen. Code, § 266h, subd. (b)(1)), and one count of pandering Doe (Pen. Code, § 266i,
Pimping, pandering, and human trafficking are not strict liability offenses. We
accordingly conclude that Titus has not shown any error as to section 1101(b).
2. Section 1108
Under section 1108, the trial court admitted uncharged prior sex offense evidence
concerning four females: Dejahia, Seitiny, Launique, and International Jazz. Titus
argues that the trial court prejudicially erred by admitting that evidence under section
1108, because pimping, pandering, and prostitution are not enumerated qualifying sex
offenses under section 1108. (See § 1108, subds. (a), (d)(1).) He further argues that the
trial court committed legal error and thus violated his right to due process by not
conducting the required analysis under section 352.
Titus’s argument fails because any such error was harmless beyond a reasonable
doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) There was overwhelming
evidence of Titus’s guilt of all three counts—pimping Doe, pandering Doe, and human
21
trafficking Doe.1 Doe described her relationship with Titus in detail, including how Titus
promised to enrich her and her family by her prostitution and how Titus frequently acted
violently toward her, threatened her and her family if she left, dictated where and when
she worked as a prostitute, gave her rules to follow while prostituting including what
services she could provide and what to charge customers, posted advertisements on the
internet for her services, required Doe to give him all of the money that she earned, and
gave her ecstasy every day that she worked. Titus forced Doe to work when she did not
want to work, even after she was raped, and required her to work until she earned a
certain quota. When Doe expressed that she no longer wanted to be a prostitute, Titus
reacted by beating her. In a direct message with Doe, Titus told her that she deserved the
beatings. Doe feared Titus and believed that she had no choice but to work for him. In a
social media post, Titus confirmed that he did not believe that a prostitute had any choice
but to work, saying “‘[Y]ou don’t have an opinion or choice bitch. Ho up.’”
Hernandez’s expert testimony about the pimping and prostitution subculture was
1 In order to prove the pimping charge, the prosecution had to prove that Titus knowingly derived support or maintenance in whole or in part from the proceeds of Doe’s prostitution activities when she was a minor over the age of 16. (Pen. Code, § 266h, subd. (b)(1).) For the pandering charge, the prosecution had to prove that Titus took a direct step toward pimping a minor 16 years old or older and that he intended to pimp a minor that age. (Pen. Code, § 266i, subd. (b)(1).) For the human trafficking charge, the prosecution had to prove that (1) Titus “caused or induced or persuaded or attempted to cause or induce or persuade another person to engage in a commercial sex act;” (2) when Titus acted, “he intended to commit or maintain a violation of Penal Code section 266h(a),” and (3) when Titus “did so, the other person was under 18 years of age.” (Pen. Code, § 236.1, subd. (c).) The prosecution also had to prove that Titus committed the human trafficking offense by use of “force, or fear, or deceit, or coercion, or violence, or duress or menace or threat of unlawful injury to the other person or to someone else.” (Pen. Code, § 236.1, subd. (c)(2).)
22
consistent in every way with Doe’s account of how Titus manipulated her and forced her
to work for him as a prostitute. In addition to Doe’s and Hernandez’s testimony, the
prosecution admitted online advertisements for sex that contained photographs of Doe
and listed Titus’s phone number as the contact.
Moreover, setting aside any evidence involving Seitiny, Dejahia, Launique, or
International Jazz, Titus’s social media activity showed that Titus was a pimp, was Doe’s
pimp in particular, and was violent with prostitutes. Hernandez explained that Titus’s
social media activity used phrases, terminology, and symbols commonly used by pimps
and that his posts indicated that he was a pimp. Doe’s online comments on some of
Titus’s social media status updates indicated that she was his bottom prostitute.
Hernandez explained that in one of the Facebook videos that Titus posted, his words
indicated that he intended to recruit prostitutes to work for him and that he referred to two
women walking on the street as potential victims.
Given the ample evidence of Titus’s guilt, we conclude beyond a reasonable doubt
that Titus would not have obtained a more favorable verdict if evidence of uncharged
sexual offenses involving Seitiny, Dejahia, Launique, and International Jazz had been
excluded.2
2 The section of the respondent’s brief addressing section 1108 discusses evidence concerning “Coldest Winterr,” in addition to evidence relating to Seitiny, Dejahia, Launique, and International Jazz. Titus’s opening brief does not challenge the admission of the evidence concerning Coldest Winterr under section 1108, but he does argue the point in his reply brief. The evidence concerning Coldest Winterr does not affect our analysis—any error in the admission of the evidence is still harmless.
23
II. Section 352.2
Effective January 1, 2023—two months after the jury reached its verdict,
Assembly Bill No. 2799 (2021-2022 Reg. Sess.) added section 352.2 to the Evidence
Code. (Stats. 2022, ch. 973, § 2.) Subdivision (a) of section 352.2 provides: “In any
criminal proceeding where a party seeks to admit as evidence a form of creative
expression, the court, while balancing the probative value of that evidence against the
substantial danger of undue prejudice under Section 352, shall consider, in addition to the
factors listed in Section 352, that: (1) the probative value of such expression for its literal
truth or as a truthful narrative is minimal unless that expression is created near in time to
the charged crime or crimes, bears a sufficient level of similarity to the charged crime or
crimes, or includes factual detail not otherwise publicly available; and (2) undue
prejudice includes, but is not limited to, the possibility that the trier of fact will, in
violation of Section 1101, treat the expression as evidence of the defendant’s propensity
for violence or general criminal disposition as well as the possibility that the evidence
will explicitly or implicitly inject racial bias into the proceedings.” “‘[C]reative
expression’” is statutorily defined as “the expression or application of creativity or
imagination in the production or arrangement of forms, sounds, words, movements, or
symbols, including, but not limited to, music, dance, performance art, visual art, poetry,
literature, film, and other such objects or media.” (Id., subd. (c).)
In People v. Venable (2023) 88 Cal.App.5th 445 (Venable), review granted May
17, 2023, S279081, we held that section 352.2 applies retroactively to nonfinal cases like
24
Titus’s. (Venable, at p. 448.) Other courts have concluded otherwise. (See People v.
Ramos (2023) 90 Cal.App.5th 578, 596 [§ 352.2 does not apply retroactively], review
granted July 12, 2023, S280073; People v. Slaton (2023) 95 Cal.App.5th 363, 376
[same], review granted Nov. 15, 2023, S282047.) The Supreme Court has granted review
on the issue and will resolve the conflict. (People v. Venable (2023) 308 Cal.Rptr.3d
191.) But on a potentially related issue, in People v. Burgos (2024) 16 Cal.5th 1, our
Supreme Court recently held that Penal Code section 1109—a newly enacted provision
mandating bifurcation of gang enhancement allegations if requested by the defendant—
does not apply retroactively. (Burgos, at p. 8.)
Relying on Venable, Titus argues that section 352.2 applies retroactively and that
admission of the rap video “Pimping and Ganging” constituted prejudicial error under the
new law. As the People correctly point out, however, the rap video and its lyrics were
not admitted. Instead, the only evidence admitted concerning the rap video was (1) Doe’s
testimony that Titus once directed her to be in a video for a rap song entitled, “Pimping
and Ganging,” and (2) three still images from the video, depicting Doe and Dejahia with
Titus in two images and with other females in the third. In his argument concerning
section 352.2, Titus also refers to a seven-minute video that shows him walking around
San Bernardino and talking. Titus also refers to a video that depicts him dropping a large
amount of cash into his lap. (Titus conflates the three videos—the rap video, the video of
him walking around, and the video showing him dropping cash into his lap—in his
argument, but they are three different videos, only two of which were admitted.)
25
We need not decide whether Burgos gives us reason to decline to follow Venable
regarding section 352.2’s retroactivity. Even if Venable is right that section 352.2 applies
retroactively to nonfinal judgments, Titus has not shown prejudicial error.
With respect to the video of Titus walking around the streets of San Bernardino
and talking into the camera (and the associated transcript), Titus mischaracterizes the
video as a rap video and assumes on that basis that section 352.2 applies. But it is not a
rap video. Moreover, the video does not appear to constitute creative expression under
section 352.2, and Titus provides no argument to the contrary. (§ 352.2, subd. (c).) The
same analysis applies to the video of Titus dropping cash into his lap.
The three still images taken from the rap video “Pimping and Ganging” are the
only evidence that appears to fall within the purview of section 352.2 that Titus argues
was erroneously admitted under that provision. Any error in admitting those three
images was harmless in light of the overwhelming evidence of Titus’s guilt, as described
ante. Given all of that evidence, it is not reasonably probable that the jury would have
reached a more favorable verdict absent the admission of the three still images taken from
the rap video. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Rodriguez (1999)
20 Cal.4th 1, 20 [state law harmlessness standard applies to evidentiary errors].)
III. Motion for mistrial
Titus argues that the trial court prejudicially erred by denying his motion for a
mistrial without asking the jurors any questions. We are not persuaded.
26
A. Relevant proceedings
At the start of the trial, the trial court instructed the jury as follows: “‘During the
trial, do not speak to a defendant, witness, lawyer, or anyone associated with them.’”
After Hernandez finished testifying, the court told the jury: “I want to just give
you a reminder that when we started the trial, I read an instruction and admonished you to
not discuss the case, but also, you couldn’t talk to the attorneys or witnesses or anybody
else having to do with the case. Remember I told you they’re nice people, but you just
are not allowed to talk to them. So keep that in mind. That includes the witnesses also
who testify, you can’t talk to them either or their families or anything like that.”
Outside the presence of the jurors and with Hernandez present, the court informed
the parties that it gave the jury that additional admonition because the court had been
advised that during one of the breaks a juror approached Hernandez and started to talk to
her. The court said that the juror started to ask Hernandez about police work and getting
the juror’s children into the police academy, and Hernandez confirmed that the inquiry
was about the juror’s children. The court asked Hernandez if she told the juror,
“something like, I can’t talk to you,” and Hernandez answered that she had.
Defense counsel orally moved for a mistrial on the grounds of “[s]everal issues,”
including that a juror spoke with Hernandez in violation of the court’s order. Counsel
acknowledged that none of the issues raised was “quite so significant” on its own to
warrant a mistrial, but counsel stated that Titus believed that his right to a fair trial had
been violated. Defense counsel also stated: “I feel like there’s a chance a mistrial was
27
granted, then Jane Doe 2 would be here and the hot water would be much deeper if we
did the trial over again. So I’m not sure it’s a good idea . . . .” The prosecutor responded
that the court’s admonition after Hernandez’s testimony seemed sufficient, given that the
juror did not attempt to speak with Hernandez about the case.
The court denied the motion. With respect to the juror’s improper communication
with Hernandez, the court reasoned: The juror “may have felt that the question, since it
wasn’t about the case or testimony, that it was an okay thing to approach the witness.
The jury has been admonished at this time, and Detective Hernandez stated it was about
attending the police academy for their children, so it has nothing to do with this case.”
B. Analysis
A criminal defendant has a constitutional right to trial by an impartial and
unbiased jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; People v.
Brooks (2017) 3 Cal.5th 1, 98.) “A deprivation of that right occurs even if only one juror
is biased.” (People v. Merriman (2014) 60 Cal.4th 1, 95.)
“‘A trial court should grant a mistrial only when a party’s chances of receiving a
fair trial have been irreparably damaged’” (People v. Clark (2011) 52 Cal.4th 856, 990),
including “‘“if the court is apprised of prejudice that it judges incurable by admonition or
instruction”’” (People v. Gonzales (2011) 51 Cal.4th 894, 921 (Gonzales)). “‘“Whether a
particular incident is incurably prejudicial is by its nature a speculative matter”’” (ibid.)
and “requires a nuanced, fact-based analysis” (People v. Chatman (2006) 38 Cal.4th 344,
369-370 (Chatman)). “The trial court is entrusted with broad discretion in ruling on
28
mistrial motions.” (Id. at p. 370.) We accordingly review such rulings for abuse of
discretion. (Gonzales, at p. 921.)
“A juror’s unauthorized contact with a witness is improper.” (People v. Cowan
‘presumption’ of prejudice.” (In re Hamilton (1999) 20 Cal.4th 273, 295 (Hamilton).)
“A sitting juror commits misconduct by violating [their] oath, or by failing to follow the
instructions and admonitions given by the trial court.” (Id. at p. 305.) If the alleged juror
misconduct “‘involves an unauthorized communication with or by a juror, the
presumption [of prejudice] does not arise unless there is a showing that the content of the
communication was about the matter pending before the jury, i.e., the guilt or innocence
of the defendant.’” (Id. at pp. 305-306.) Contact between a juror and a witness “may be
nonprejudicial if the contact was ‘de minimis.’” (Cowan, at p. 507.)
The trial court acted within its discretion by denying the mistrial motion. The
unauthorized communication that the juror initiated with Hernandez was brief and was
not about the case or Hernandez’s testimony, so prejudice is not presumed. (Hamilton,
supra, 20 Cal.4th at p. 295.) The trial court questioned Hernandez about the incident, and
she confirmed those facts and that she told the juror that they could not communicate.
The trial court acted well within its discretion by determining that the brief interaction
either was not prejudicial given the content and brevity (Id. at pp. 305-306; Cowan,
supra, 50 Cal.4th at p. 507) or did not amount to the type of prejudice that could not be
29
cured by admonition or instruction (Gonzales, supra, 51 Cal.4th at p. 921), such as the
one that the court promptly gave the jury upon learning of the impropriety.
Titus argues that the trial court did not conduct an adequate “nuanced, fact-based
analysis” because it did not question the juror about the exchange. (Chatman, supra, 38
Cal.4th at p. 370.) The argument lacks merit. The court’s questioning of Hernandez
about the encounter was sufficient to confirm both the content and the brevity of the
encounter. The court was not obligated to ask the juror about the communication,
particularly given the de minimis nature of the exchange and that it was not
presumptively prejudicial. (Hamilton, supra, 20 Cal.4th at pp. 305-306; Cowan, supra,
50 Cal.4th at p. 507.)
IV. Sentencing issues
Before sentencing, Titus moved to strike his prior strike conviction under Penal
Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero). “A trial court’s authority under section 1385, subdivision (a), to dismiss ‘an
action’ includes the authority to dismiss allegations of prior serious or violent convictions
(i.e., prior strikes) in the furtherance of justice, considering ‘“‘both . . . the constitutional
rights of the defendant, and the interests of society represented by the People . . . .’”’”
(People v. Ortiz (2023) 87 Cal.App.5th 1087, 1093.)
In January 2023, the prosecutor filed an opposition to Titus’s Romero motion, and
the court held a hearing on the same day. The record on appeal does not include a
reporter’s transcript of that hearing. The minute order states: “Action comes on for
30
Sentencing and Defense Romero Motion. [¶] Defendant states he has hired Attorney
Miles Clark. [¶] Attorney needs to be present in order for Conflict Panel to be relieved.
[¶] Matter continued by stipulation.”
The sentencing hearing was held in August 2023, with Titus’s new counsel
present. During that hearing, the prosecutor stated that the Romero motion filed by
Titus’s prior counsel had already been denied. Defense counsel did not object. Defense
counsel urged the court to sentence Titus to the shortest possible sentence. The court
indicated that the problem was that Titus rejected a pretrial offer of a determinate term, at
which time the court advised Titus that he faced a life sentence if convicted at trial. The
court remarked: “And not only that, this is—the sad thing about it is, is that he has prior
acts of violence, and so—and they’re recent in time. I knew going forward that—that if
he was convicted, you know, fighting—filing a Romero motion, because they’re so close
in time and it’s an ongoing pattern, it would be very difficult for anyone to overcome
that, as far as the prior strikes are concerned.” The trial court doubled Titus’s sentence on
the basis of the prior strike. (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)
Titus argues, the People concede, and we agree that remand for resentencing is
necessary for the trial court to rule on Titus’s motion to strike the prior strike conviction.
The record does not contain an express ruling on the motion and does not clearly indicate
how the court would have ruled on it if the issue had been brought to the court’s
attention. We must therefore vacate Titus’s sentence and remand for resentencing.
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) And because we are vacating Titus’s
31
entire sentence, he is entitled to a full resentencing. (People v. Buycks (2018) 5 Cal.5th
857, 893.) “‘[A] full resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed circumstances.’” (Ibid.; People
v. Valenzuela (2019) 7 Cal.5th 415, 424-425.) The sentence imposed on resentencing
may not exceed the original aggregate sentence. (People v. Jones (1994) 24 Cal.App.4th
1780, 1783-1784; People v. Hanson (2000) 23 Cal.4th 355, 357-358.)
Our remand for resentencing eliminates the need for us to address Titus’s
argument concerning Penal Code section 654, which Titus will have the opportunity to
raise in the trial court.
DISPOSITION
Titus’s sentence is vacated, and the matter is remanded for resentencing. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J.
MILLER J.
32
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for human trafficking, pimping, and pandering, but vacated the sentence and remanded for resentencing because the trial court failed to consider the defendant's motion to strike a prior strike conviction. The court rejected the defendant's claims regarding the admission of evidence of uncharged conduct and juror misconduct.
Issues
Whether the trial court erred in admitting evidence of uncharged conduct under Evidence Code sections 1101, 1108, and 352.
Whether Evidence Code section 352.2 applies retroactively to nonfinal appeals.
Whether the trial court abused its discretion in denying a motion for a mistrial based on juror misconduct.
Whether the trial court erred in failing to consider a motion to strike a prior strike conviction and in failing to stay sentences under Penal Code section 654.
Disposition. Affirmed in part, vacated in part, and remanded.
Quotations verified verbatim against the opinion
“We agree with both parties on that issue and consequently vacate the sentence, remand for resentencing, and do not address the other claimed sentencing error. We reject Titus’s remaining arguments.”
“The court ruled admissible “any prior behavior that [Titus] has that would show—or an expert is going to testify is indicia of pimping activity that goes to intent and knowledge.””