People v. Brandon (2006) · DecisionDepot

People v. Brandon

Name: California Superior Court Tentative Rulings
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California Court of Appeal Dec 20, 2006 No. B186361Published

Before: Turner

52 Cal.Rptr.3d 427 (2006) 145 Cal.App.4th 1002 The PEOPLE, Plaintiff and Respondent,

Marlon BRANDON, Defendant and Appellant.

No. B186361. Court of Appeal of California, Second District, Division Five.

December 15, 2006. As Modified December 20, 2006. [430] Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte, and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

Certified for Partial Publication.[*]

TURNER, P.J.

I. INTRODUCTION

Defendant, Marlon Brandon, appeals from his convictions for: three counts of pimping (Pen.Code,[1] § 266h, subd. (a)); four counts of pandering by procuring (§ 266i, subd. (a)(1)); attempted pandering by procuring (§§ 266i, subd. (a)(1), 664); three counts of false imprisonment by violence (§ 236); forcible rape (§ 261, subd. (a)(2)); aggravated sexual assault of a child (§§ 261, subd. (a)(2), 269, (a)(1)); forcible lewd act upon a child (§ 288, subd. (b)(1)); lewd act upon a child (§ 288, subd. (a)); aggravated sexual assault of a child, oral copulation (§§ 269, subd. (a)(4); 288a); forcible oral copulation (§ 288, subd. (c)(2)); and two counts of procuring a child to engage in a lewd act. (§ 266j.) The jury further found defendant personally used a [431] dangerous and deadly weapon in the false imprisonment by violence offense against Mamie D. Defendant argues: Mamie, a victim, was improperly permitted to testify with her face partially covered; opinion testimony concerning pimping strategies was erroneously presented to the jury; he was denied effective assistance of counsel; there was insufficient evidence to support his false imprisonment conviction; and various sentences must be stayed pursuant to section 654, subdivision (a). We agree that the felony false imprisonment sentence resulting from an attempt to pander Kaleena R. (counts 5 and 22 respectively) must be stayed pursuant to section 654, subdivision (a).

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The United States Supreme Court has held: "The Sixth Amendment's Confrontation Clause provides that, `[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.'" (Crawford v. Washington (2004) 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177; see U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Maryland v. Craig (1990) 497 U.S. 836, 844, 110 S.Ct. 3157, 111 L.Ed.2d 666; Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 674.) However, the Supreme Court clarified in Maryland v. Craig, supra, 497 U.S. at page 844, 110 S.Ct. 3157, "We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial." (Original italics; see People v. Williams (2002) 102 Cal.App.4th 995, 1006-1007, 125 Cal.Rptr.2d 884.) The Supreme Court further held: "[A] defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." (Maryland v. Craig, supra, 497 U.S. at p. 850, 110 S.Ct. 3157; accord Coy v. Iowa (1988) 487 U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857; Ohio v. Roberts (1980) 448 U.S. 56, 64, 100 S.Ct. 2531, 65 L.Ed.2d 597, overruled on another point in United States v, Gonzalez-Lopez (2006) ___ U.S. ___, ___, 126 S.Ct. 2557, 2562, fn. 1, 165 [445] L.Ed.2d 409.) On another occasion, the United States Supreme Court has held, "[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose ... infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." (Delaware v. Fensterer (1985) 474 U.S. 15, 22, 106 S.Ct. 292, 88 L.Ed.2d 15; see Ohio v. Roberts, supra, 448 U.S. at p. 69, 100 S.Ct. 2531 [substantial compliance with confrontation requirements where witness was under oath, subject to cross-examination, and testified before a court]; California v. Green (1970) 399 U.S. 149,165-168, 90 S.Ct. 1930, 26 L.Ed.2d 489 [witness's preliminary hearing testimony, which was subject to cross-examination, satisfied the Confrontation Clause].) In Craig, a case involving the testimony of child abuse victim witnesses by closed circuit television, the United States Supreme Court concluded: "[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation." (Maryland v. Craig, supra, 497 U.S. at p. 857, 110 S.Ct. 3157; see People v. Thomas (2005) 130 Cal.App.4th 1202, 1208, 30 Cal.Rptr.3d 582.)

Defendant argues, "[T]he only real issue the expert testimony here addressed was the credibility of the prostitute-witness...." Defendant further argues that in comparison to such phenomena as rape trauma, battered wife, and child sexual abuse accommodation syndromes, the "prostitution strategies" referred to by Dr. Lee were within the common knowledge or experience of a reasonable trier of fact. We disagree. In People v. Brown, supra, 33 Cal.4th at page 906, 16 Cal.Rptr.3d 447, 94 P.3d 574, the Supreme Court held, "[I]n [People v.] McAlpin, supra, 53 Cal.3d 1289, 283 Cal.Rptr. 382, 812 P.2d 563, we made it clear that admissibility of expert testimony does not depend on a showing based on a recognized `syndrome.'" The Supreme Court has also explained: "The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would every be heard. Instead, the statute declares that even if the jury as some knowledge of the matter, expert opinion may be admitted whenever it would `assist' the jury. It will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when `the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness' [citation]." (People v. McDonald (1984) 37 Cal.3d 351, 367, 208 Cal.Rptr. 236, 690 P.2d 709, quoting People v. Cole, supra, 47 Cal.2d at p. 103, 301 P.2d 854, disapproved on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 912-914, 98 Cal. Rptr.2d 431, 4 P.3d 265.) The Brown Court explained that in cases involving the behavior of abused children and their parents, opinion testimony on the common reactions to child molestation was admissible because: "`[E]xpert testimony on the common reactions of child molestation victims ... is admissible to rehabilitate such witness's credibility.... Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual [449] abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior.'" [Citation.]" (People v. Brown, supra, 33 Cal.4th at p. 906, 16 Cal.Rptr.3d 447, 94 P.3d 574, quoting People v. McAlpin, supra, 53 Cal.3d at pp. 1300-1301, 283 Cal.Rptr. 382, 812 P.2d 563.) The Brown court then drew the analogy to domestic violence cases where the victim's testimony may be inconsistent with what was earlier told to the police. (People v. Brown, supra, 33 Cal.4th at p. 906,16 Cal.Rptr.3d 447, 94 P.3d 574.)

We also reject defendant's suggestion that Dr. Lee's testimony amounted to a type of "profile" testimony prohibited in People v. Robbie (2001) 92 Cal.App.4th 1075, 1084, 112 Cal.Rptr.2d 479. Dr. Lee's testimony related to the experiences of young girls drawn into prostitution by pimps, rather than profiling or categorizing defendant. This is not a case where a hypothetical inquiry was presented to a witness and the circumstances matched those of the charges against the accused as was the case in Robbie and the body of authority it synthesizes. (Id. at pp. 1082-1087, 112 Cal.Rptr.2d 479.) The California Supreme Court has described "profile evidence" of the type to which defendant objects thusly: "In [People v. Walkey (1986) 177 Cal.App.3d 268, 223 Cal.Rptr. 132], the prosecution introduced expert evidence that the most important factor in the profile of a child abuser was that he had himself been abused as a child, elicited an admission from the defendant that he had been abused as a child, then argued that the defendant was guilty because he fit the profile of a child molester. ([Id.] at pp. 276-277 [223 Cal.Rptr. 132].) The Court of Appeal held the evidence inadmissible and the prosecution's argument improper. (Id. at p. 279 [223 Cal.Rptr. 132] )[H] In People v. Robbie, supra, 92 Cal.App.4th 1075, 112 Cal.Rptr.2d 479, a prosecution expert testified that many rapists use only minimal force, and described in detail a scenario in which the rapist is in effect acting as if he thinks of the sexual acts as consensual. (Id. at pp. 1082-1084, 112 Cal.Rptr.2d 479.) Not coincidentally, the behavior the expert described matched the testimony of the alleged victim. The expert conceded that the same behavior would be consistent with a truly consensual encounter. The Court of Appeal in Robbie characterized this evidence as inadmissible `profile evidence.' It explained: `[The evidence] implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People's expert conceded here.' (Id. at p. 1085, 112 Cal.Rptr.2d 479.) Other cases excluding profile evidence include People [450] v. Castaneda (1997) 55 Cal.App.4th 1067, 1072, 64 Cal.Rptr.2d 395 (drug dealer profile), People v. Martinez (1992) 10 Cal. App.4th 1001, 1006, 12 Cal.Rptr.2d 838 (truck thief profile), and [United States] v. Beltran-Rios (9th Cir.1989) 878 F.2d 1208, 1210 (drug courier profile)." (People v. Smith (2005) 35 Cal.4th 334, 357-358, 25 Cal.Rptr.3d 554,107 P.3d 229.)

Defendant argues that there was insufficient evidence to support his conviction for the felony false imprisonment of Kaleena. Defendant argues the force he used to restrain her "was not done with violence over and above that needed to effect the restraint" and hence the evidence is insufficient. In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: "[We] consider the evidence in a light most [451] favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, 6 Cal.Rptr.2d 822, 827 P.2d 388, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631, 276 Cal.Rptr. 874, 802 P.2d 376; People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.) Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319, 99 S.Ct. 2781, orig. italics; People v. Bolin, supra, 18 Cal.4th at p. 331, 75 Cal.Rptr.2d 412, 956 P.2d 374; People v. Marshall (1997) 15 Cal.4th 1, 34, 61 Cal.Rptr.2d 84, 931 P.2d 262; People v. Ochoa (1993) 6 Cal.4th 1199, 1206, 26 Cal. Rptr.2d 23, 864 P.2d 103; People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110; Taylor v. Stainer, supra, 31 F.3d at pp. 908-909.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal.Rptr.2d 413, 971 P.2d 618; People v. Stanley (1995) 10 Cal.4th 764, 792, 42 Cal.Rptr.2d 543, 897 P.2d 481; People v. Bloom (1989) 48 Cal.3d 1194, 1208, 259 Cal.Rptr. 669, 774 P.2d 698; People v. Bean (1988) 46 Cal.3d 919, 932, 251 Cal.Rptr. 467, 760 P.2d 996.) The California Supreme Court has held, "Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin, supra, 18 Cal.4th at p. 331, 75 Cal.Rptr.2d 412, 956 P.2d 374, quoting People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) Section 236 provides: "False imprisonment is the unlawful violation of the personal liberty of another." Section 237, subdivision (a) provides in pertinent part: "If the false imprisonment be effected by violence, menace, fraud, or deceit, it shall be punishable by imprisonment in the state prison."

There are three prostitution related statutes that are pertinent to defendant's multiple sentencing contentions as to Mamie, Orlaith, and Elisha. The first statute, pimping, section 266h, subdivision (a) provides in pertinent part: "[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper of manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping...." The second statute, section 266i defines pandering in part as follows: "(a) ... [A]ny person who does any of the following is guilty of pandering ... [¶] (1) procures another person for the purpose of prostitution, [¶] (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute, [¶] (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. [¶] (4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. [¶] (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution." The third prostitution related statute, section 266j, procuring a minor under the age of 16, states in part: "Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony...." As defendant acknowledges, the Legislature criminalized both pimping and pandering to discourage prostitution. (People v. Patton (1976) 63 Cal.App.3d 211, 217, 133 Cal.Rptr. 533; People v. Hashimoto (1976) 54 Cal.App.3d 862, 867, 126 Cal. Rptr. 848.)

People v. Brandon

TURNER, P.J.

I. INTRODUCTION

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II. FACTUAL BACKGROUND

C. Mamie (Counts 3, 4, 9, 10, 18, And 19)

III. DISCUSSION

C. Felony False Imprisonment of Kaleena (Count 22)

IV. DISPOSITION

NOTES