People v. Conley CA2/8

Filed 11/2/15 P. v. Conley CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B256914

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA092664)
v.

JAMES CONLEY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson
Ong, Judge. Affirmed as modified.

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews, Stephanie
A. Miyoshi and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
 James Conley (defendant) appeals from convictions of multiple counts of pimping
a minor, pandering a minor, lewd acts and human trafficking a minor, all involving the
same two victims: E.D. and J.H.1 He contends: (1) it was prejudicial error to admit
evidence of an expert’s opinion of defendant’s guilt; (2) trial counsel was ineffective in
failing to object to such evidence, and (3) because pimping and pandering by procuring
J.H. when she was over the age of 16 (counts 8 and 9, respectively) are the same crimes
as pimping and pandering by procuring J.H. when she was under the age of 16 (counts 6
and 7, respectively), the conviction on counts 8 and 9 must be vacated; and (4) the
sentence violates Penal Code section 654 in two ways. In addition, the People concede
that defendant’s presentence custody credits were miscalculated. We modify the
judgment and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

A. J.H.

J.H. was born in August 1994. From 2009 until she was arrested in 2012, J.H. was
a prostitute and defendant was her pimp. Police discovered J.H.’s connection to
defendant in May 2012, when a citation issued to J.H. for “loitering for prostitution” was
found in defendant’s car.

1 All undesignated statutory references are to the Penal Code. Defendant was
charged by second amended information with pimping a minor over age of 16 (§ 266h,
subd. (b)(1) (counts 1, 8)); pimping a minor under age 16 (§ 266h, subd. (b)(2)
(count 6)); pandering a minor over age 16 (§ 266i, subd. (b)(1) (counts 2, 9)); pandering a
minor under age 16 years of age (§ 266i, subd. (b)(2)) (count 7)); lewd act on a 14 year
old (§ 288, subd. (c)(1) (counts 3, 4, 5); human trafficking a minor (§ 236.1, subd. (a))
(count 10)); and kidnapping J.H. for rape (§ 209, subd. (b)(1) (count 11)). Enhancements
for prior convictions were also alleged (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i) &
§ 667, subd. (a)(1)).
A jury found defendant not guilty of pimping E.D. (count 1) and of kidnapping
J.H. for rape (count 11), but guilty on the remaining counts. Defendant admitted one
prior conviction. We discuss the details of defendant’s 36-year sentence elsewhere in this
opinion.

2
 J.H. recounted that she and her siblings lived with her drug-addicted mother when
she met defendant in a telephone chat-room in January 2009.2 The next night, defendant
took J.H. to a club in downtown Los Angeles where they had cocktails (J.H. used her
mother’s identification). That night, they had sex in the backseat of the white Mercedes
defendant was driving. After awhile, J.H. was seeing defendant seven days a week. He
bought her gifts, took her to restaurants, clubs and house parties. They had sex several
times a week, usually in defendant’s car, sometimes in a hotel room. On two occasions,
they had sex in defendant’s room at his grandparent’s home in Long Beach, while his
grandparents were asleep. J.H. thought defendant was her boyfriend. About six months
into their relationship, defendant hit J.H. for the first time. It was in response to J.H.
socializing with other men at a bar.
About three months after that, in September or October 2009, on the way home
from a nightclub, J.H. answered affirmatively when defendant asked if she loved him.
Defendant told J.H. that, if she loved him, she would have sex for money with other men;
the money she would earn would be for them both. Defendant went on to explain the
specifics of how to be a prostitute, including the prices to charge for different sex acts.
Because she was drunk and needed the money, J.H. thought it sounded like a good plan.
That first night, J.H. had sex for money with three different men.
J.H. “worked” for defendant seven days a week from that first day until she was
contacted by detectives in December 2012. Her days followed a pattern beginning with
defendant picking her up at school or home and bringing her to the Luxury Inn Motel in
Compton, where she changed out of her own clothes and into “sexy” clothes that
defendant had purchased. Defendant always gave J.H. two condoms and then drove her
to various locations where she would get out of the car and wait for “dates.” Meanwhile,
defendant would usually park nearby to watch her. At the end of her working day,
defendant brought J.H. back to the motel where she changed into her own clothes. He

2 J.H. testified that she was 15 years old. The record shows she was born in August
1994, hence, she would have been 14 years old.

3
then drove her home and waited outside while she changed clothes and, on school days,
drove her to school.
Defendant laid down “rules” which J.H. tried to follow because she knew failure
to do so would result in a beating. These rules included that J.H. had to continue working
each day until she made $500. If she made the $500 minimum during the day, defendant
sometimes allowed her to spend the night in the motel room.3 But if she failed to make
the minimum during the day, defendant would make her work through the night until she
made the $500 minimum. Another rule was that J.H. had to give everything she earned
to defendant. Although defendant would beat her if he found her in possession of any
money, J.H. was able to secret some money, which she gave to her family. In addition to
having sex for money, J.H. had to have sex with defendant several times a week.
Whether or not J.H. followed the rules, defendant beat her several times a week.
The worst beating occurred when defendant thought J.H. might be leaving him for
another pimp; on that occasion, defendant hit her, spit on her and kicked her “like a dog.”
Once, when J.H. tried to leave the motel room, defendant beat her up so badly she could
not walk. During a beating in September 2011, J.H. told defendant to stop because she
was pregnant; defendant responded that he did not care and continued to beat her. J.H.
stayed with defendant because she and her family needed the money and because she
believed he would follow through on his threats to hurt her family if she left. At the time,
J.H. believed defendant when he told her he beat her because he loved her. At trial, she
no longer believed him.
Defendant was arrested on May 7, 2012, when undercover Los Angeles police
officers watching several prostitutes at a location known for its high incidence of street
prostitution, saw defendant pull over in a blue Cadillac Escalade and two prostitutes get

3 On those occasions, there was sometimes more than one prostitute in the room.
Over the three years J.H. was with defendant, she estimated that four other women
worked for defendant at one time or another.

4
into the car.4 Police discovered a prostitution citation issued to J.H. in defendant’s car
and sexually explicit photographs of J.H. on defendant’s cell phone.5

B. E.D.

When E.D. was 16 years old, she ran away from home and an older friend
introduced her to prostitution as a way to be self-supporting. That friend acted as E.D.’s
pimp until E.D. stopped working as a prostitute in October 2011. E.D. met defendant for
the first time on February 7, 2012. At that time, E.D.’s best friend was 16-year-old
Angela, whom E.D. knew from high school; E.D. knew that Angela worked as a
prostitute. That night, E.D. went to the motel in Compton where Angela lived, for what
E.D. thought was to be a social evening. When E.D. arrived at about 7:00 p.m.,
defendant was there. Since there were only women’s clothes in the room, E.D. assumed
he did not live there. After listening to music for awhile, Angela and defendant began
snorting crystal meth; E.D. did not participate. At about 9:00 p.m., defendant’s demeanor
suddenly changed. He demanded that E.D. make $300 for him by 8:00 a.m. the next
morning or be “chopped.” E.D. understood that defendant wanted her to act as a
prostitute and if she did not earn $300 and bring it back to him that night, he would hit
her. Afraid of what defendant would do to her if she refused, E.D. did as defendant
instructed. E.D. had her first customer within 30 minutes but they were arrested before
the transaction was completed.
On June 2, 2012, Long Beach Police Officer Satwan Johnson was part of a team
that executed a search warrant at defendant’s grandparents’ home. In defendant’s
bedroom, officers found women’s shoes, high-end jewelry, cell phones, pornographic
DVD’s and other DVD’s of films that glorified the “pimp lifestyle.”

4 J.H. identified the Escalade as the vehicle defendant was driving when she was
with him.

5 J.H. testified that defendant used the photographs to advertise J.H. on a
prostitution website.

5
 Johnson also testified as an expert on “human trafficking,” which the Penal Code
defines as the deprivation or violation of “the personal liberty of another with the intent
to obtain forced labor or services . . . .” (§ 236.1, subd. (a).)6 Johnson explained that
when runaway females are enticed, seduced, manipulated or forced into prostitution, it
becomes a human trafficking case. Johnson explained that pimps generally operate in
three ways: (1) run a brothel house; (2) work the internet; or (3) walk the street, which is
known as the “track.” Sexually explicit photographs, like the ones of J.H. on defendant’s
cell phone, are commonly used by pimps to advertise on the internet. Similar to domestic
violence cases, there is often a cycle of abuse and romance in the pimp/prostitute
relationship. The pimp begins by making the female believe he is her boyfriend. After
awhile, the pimp convinces her that working as a prostitute is a good way for her to make
money for “them” and that doing what the pimp wants is a way to show her love for him.
The pimp’s goal is to get the woman on “automatic” because once she is on “automatic,”
she will do what her pimp wants without constant supervision. Even so, when the female
is on the street waiting for “dates,” the pimp usually stays nearby observing. And he will
give the prostitute just a few condoms so that she will have to come back to him for
more, at which time she will report what sex acts she has performed and turn over the
money she has earned. The woman comes to understand that she cannot eat or sleep until
she makes her quota. Without objection, Johnson testified that it was his opinion that
“this is definitely a human trafficking case” and that E.D. and J.H. “fit the profile” of
human trafficking victims. Also without objection, Johnson detailed how the evidence in
this case supported his opinion.
A jury found defendant guilty of pimping E.D. while she was over age 16
(count 1), pandering E.D. while she was over age 16 (count 2), lewd acts upon J.H. while

6 “ ‘Deprivation or violation of the personal liberty of another’ includes substantial
and sustained restriction of another’s liberty accomplished through force, fear, fraud,
deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to
another person, under circumstances where the person receiving or apprehending the
threat reasonably believes that it is likely that the person making the threat would carry it
out.” (§ 236.1, subd. (h)(3).).

6
she was age 14 (counts 3, 4, 5), pimping J.H. while she was under age 16 (count 6),
pandering J.H. while she was under age 16 (count 7), pimping J.H. while she was over
age 16 (count 8), pandering J.H. while she over age 16 (count 9) and human trafficking
J.H. while she a minor (count 10). Defendant timely appealed.

DISCUSSION

A. Erroneous Admission of Evidence

Defendant contends his conviction for pandering by procuring minors E.D. and
J.H. (counts 2, 7 & 9), pimping J.H. (counts 6 & 8), and human trafficking J.H. (count
10) must be reversed because it was an abuse of discretion to admit into evidence the
expert’s opinion that this was a human trafficking case and E.D. and J.H. fit the profile of
human trafficking victims (the challenged opinion evidence). He argues the challenged
opinion evidence was inadmissible evidence of the expert’s opinion of defendant’s guilt.
But defense counsel’s failure to timely object to the admission of this evidence
constitutes a forfeiture of the issue. (Evid. Code, § 353, subd. (a); see People v. Dowl
(2013) 57 Cal.4th 1079, 1089; People v. Doolin (2009) 45 Cal.4th 390, 448.) However,
our inquiry does not end here, because the failure to object is the basis of defendant’s
ineffective assistance of counsel contention. Accordingly, we turn next to that
contention.

B. Ineffective Assistance of Counsel

Defendant contends his conviction on counts 2, 6, 7, 8, 9 and 10 must be reversed
because trial counsel was ineffective for failing to object to the challenged opinion
evidence. As we shall explain, defense counsel should have objected to the inadmissible
challenged opinion evidence, but defendant has failed to show the prejudice necessary to
establish ineffective assistance of counsel.

7
 1. Standard of Review

To prevail on an ineffective assistance of counsel claim, a criminal defendant must
show: (1) trial counsel’s performance fell below an objective standard of reasonableness
under prevailing professional norms; and (2) without counsel’s errors, a different
outcome was reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-
688; People v. Waidla (2000) 22 Cal.4th 690, 718.) Unless there is no plausible or
satisfactory reason for trial counsel’s challenged act or omission, the appellate court
cannot determine an ineffective assistance claim absent a showing on the record of the
reasons for trial counsel’s act or omission. (People v. Cunningham (2001) 25 Cal.4th
926, 1003; People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Failure to make an
objection that has little, if any likelihood, of being sustained does not constitute
ineffective assistance of counsel. (People v. Anderson (2001) 25 Cal.4th 543, 587;
People v. Zavala (2008) 168 Cal.App.4th 772, 780.)
Thus, for defendant to prevail here on his ineffective assistance of counsel claim,
he must show a defense objection to the expert opinion testimony likely would have been
sustained (i.e. that the evidence was not admissible), that there could be no plausible or
satisfactory reason for counsel to not object to such evidence, and that a different result
was reasonably probable if counsel had objected. Defendant has failed to make that
showing.

2. The Challenged Opinion Evidence

After Johnson described in general the culture of pimps and prostitutes, the
prosecutor engaged him in the following colloquy:
“[THE PROSECUTOR]: Have you formed an opinion as to whether or not
the testimony you heard would be evidence of human trafficking? [sic]
[THE WITNESS]: Yes.
[THE PROSECUTOR]: What is that opinion?
[THE WITNESS]: That this is definitely a human trafficking case.

8
 [THE PROSECUTOR]: Human trafficking case for which named victim?
[THE WITNESS]: Both of the victims. But in particular, J.H., you know,
you have a young girl that was seduced and enticed into prostitution. [¶] It
was a classic example of how a pimp would take a young girl and turn her
into a prostitute. It is systematic. [¶] It is not rocket science. They use
this systematic method. They all go in under the guise, meet them on party
lines, chat lines, Facebook. [¶] They date them. Date them for awhile and
turn around and say at some point, ‘You need to make money for me.’ ”
The prosecutor next asked a series of questions specifying certain evidence and asking
Johnson how that evidence supported his opinion that this was a human trafficking case.
The colloquy continued:
“[THE PROSECUTOR]: And did these two young women fit the profile of
someone being human trafficking?
[THE WITNESS]: Yes.”
There followed another series of questions specifying certain evidence and asking how
that evidence supported Johnson’s opinion that E.D. and J.H. fit the profile of a human
trafficking victim. The prosecutor concluded with the following:
[THE PROSECUTOR]: . . . [¶] Anything else factor into your opinion as
to this being a case of human trafficking that you can think of besides what
we talked about?
[THE WITNESS]: No.”

3. Although the Challenged Opinion Evidence was Inadmissible and Trial
Counsel’s Failure to Object was Beneath the Standard of Care,
Defendant Failed to Show Prejudice

a. The evidence was not admissible and there was no tactical reason
not to object

Experts opinion evidence is limited to opinions related “to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the

9
trier of fact.” (Evid. Code, § 801, subd. (a).) The expert may state the reasons for his
opinion and the matter upon which it is based (Evid. Code, § 802), including matter made
known to the expert at the hearing (Evid. Code, § 801, subd. (b)).
But an expert may not testify as to his or her opinion of the defendant’s guilt of the
charged crimes. This is “ ‘not because guilt is the ultimate issue of fact for the jury, as
opinion testimony often goes to the ultimate issue. [Citations.] “Rather, opinions on
guilt or innocence are inadmissible because they are of no assistance to the trier of fact.
To put it another way, the trier of fact is as competent as the witness to weigh the
evidence and draw a conclusion on the issue of guilt.” ’ [Citations.]” (People v. Vang
(2011) 52 Cal.4th 1038, 1048.) An expert may, however, respond to hypothetical
questions that track the evidence in the case in which he or she is testifying. (Ibid.) “A
hypothetical question asks the witness to assume certain facts are true and to give an
opinion based on the assumed facts.” (CALCRIM No. 332.)7
In distinguishing the difference between admissible expert opinion and
inadmissible opinion of guilt in the context of crimes involving pimping, pandering
and/or human trafficking, People v. Leonard (2014) 228 Cal.App.4th 465, is instructive.
In Leonard, defendants Leonard and Walser were convicted of pimping and pandering,
among other things. On appeal, Leonard challenged admission of expert testimony about
the culture of pimping and pandering in general, as well as the expert’s interpretation of
Leonard’s social media postings, and the victims’ statements against Leonard. (Id. at
p. 492.) Specifically, the expert described the ways pimps control the prostitutes who
work for them, including different kinds of pimps (e.g. “finesse pimps” and “gorilla
pimps”). (Ibid.) The prosecutor also asked the expert: “And have you, in your speaking
with [victim], as well as reviewing the reports in this case and the cell phone examination
and any other evidence, . . . have you formed an opinion as to what type of pimp [the
defendant] is?” Answering affirmatively, the detective explained that the defendant
started as a finesse pimp but developed into a gorilla pimp. Later, referencing this

7 CALCRIM No. 332 was given in this case.

10
testimony, the prosecutor asked the expert: “ ‘Relating with that subject area, did you see
patterns of behavior in pimping in manipulation and control of women in the testimony
you heard today?’ ” The detective answered affirmatively and explained that certain
postings on the defendant’s social media referenced pimping and prostitution and that the
defendant’s “style mimicked successful pimps.” (Ibid.)
The Court of Appeal found the expert testimony “regarding what type of pimp
Leonard was and what ‘patterns of behavior in pimping’ were shown in [the victim’s]
testimony could reasonably be interpreted as unhelpful comments on Leonard’s guilt or
innocence on the charge of pimping. [Citation.] The jury was as qualified as [the expert]
to determine whether the evidence showed Leonard was acting as a ‘gorilla pimp’ or
‘finesse pimp,’ for example, after [the expert] had explained those terms. [Citation.]”
(Leonard, supra, 228 al.App.4th at p. 412.) But it found the error harmless, reasoning the
improper expert testimony was brief and the other admissible evidence of guilt was
overwhelming. (Id. at pp. 493-494.)
Although it did not involve pimping and pandering, People v. Spence (2012)
212 Cal.App.4th 478, also offers guidance. The defendant in Spence, supra, was
convicted of multiple counts of sexually assaulting a minor. A defense expert criticized
the conclusions of the doctor who examined the victim. The prosecutor asked the doctor,
“if someone by the name of [the victim] says that she was sexually assaulted by someone
by the name of [the defendant], is there any evidence that you tested in this case that
contradicts that story?” The appellate court agreed with the defendant that the question
was an impermissible hypothetical based upon which the expert gave an impermissible
opinion that the defendant was guilty. (Id. at pp. 508-509.) The “question seems to
unduly focus upon [the defendant] as a presumptively guilty individual, and we
disapprove of this form of questioning.” (Id. at p. 510.) But the Spence court found “any
error in allowing it was harmless. [Citations.] The expert testimony thus interpreting the
laboratory test results was not the only proof of the charges, in light of D.’s own
testimony, the evidence about the family circumstances, and admissions by [the
defendant] about his acts of molestation, all of which could be evaluated by the jury.

11
[Citation.] There was no deprivation of due process in the manner of questioning this
expert witness.” (Id. at p. 510, citing People v. Watson 46 Cal.2d 818, 835–836.)
Here, there is no dispute that the general culture of pimps and prostitutes is
sufficiently beyond common experience that expert opinion on these matters was
admissible to assist the trier of fact. (See Leonard, supra, 228 Cal.App.4th at p. 492.)
But the expert went beyond explaining the esoteric culture of pimps and prostitutes. The
only reasonable interpretation of the expert’s challenged opinions is that they were
unhelpful comments on defendant’s guilt or innocence of human trafficking. Like the
jury in Leonard, the jury in this case was as qualified as Johnson to determine whether
the evidence showed this to be a human trafficking case after Johnson explained how
human trafficking fits into the culture of prostitutes and pimps, generally.8 Other than
arguing the evidence was not inadmissible, the People have not suggested, and we can
conceive of no rational tactical purpose for trial counsel’s failure to object. Accordingly,
such failure fell below an objective standard of reasonableness. (Cunningham, supra,
25 Cal.4th at p. 100.)
The People’s reliance on People v. Lindberg (2008) 45 Cal.4th 1, for a contrary
result is misplaced. The defendant in Lindberg was found guilty of first degree murder;
several special circumstances were found true, including the hate-murder crime special
circumstances. (§ 190.2, subd. (a)(16) [“The victim was intentionally killed because of
his or her race, color, religion, nationality or country of origin.”].) Our Supreme Court
rejected the contention that the trial court abused its discretion in allowing an expert to
opine that the defendant was a White supremacist, reasoning: “The expert stated no
opinion as to defendant’s guilt or the truth of the special circumstances. His opinion that

8 We are not persuaded otherwise by the People’s argument that Johnson’s
testimony did nothing more than define for the jury terms of art common to that culture
and explain the significance of specific evidence such as defendant driving a Cadillac
Escalade, wearing flashy jewelry, etc. This would have been true had the prosecutor
asked the questions in the form of a hypothetical. What the prosecutor could not do,
which he did do, was to ask the expert to give his opinion as to defendant’s actual guilt or
innocence of the charged crimes.

12
defendant was a White supremacist did not bind the jurors on this point or preclude them
from considering other relevant evidence.” (Lindberg, at p. 49.) Lindberg is
distinguishable because the defendant in Lindberg was not charged with being a White
supremacist and, accordingly, the expert’s opinion that he was a White supremacist could
not reasonably be construed as an opinion of the defendant’s guilt. Here, by contrast,
defendant was charged with human trafficking and the expert’s opinion that this was a
human trafficking case and E.D. and J.H. were human trafficking victims, can only
reasonably be construed as an opinion that defendant was guilty of human trafficking.

b. Defendant has not established prejudice.

Although we conclude the challenged opinion evidence was inadmissible and
defense counsel should have objected, defendant has failed to show the prejudice
necessary to establish ineffective assistance of counsel. This is because conviction on all
counts was supported by overwhelming admissible evidence of defendant’s guilt. J.H.’s
description of the threats and actual beatings defendant inflicted on her if she did not give
him all of her earnings, when he thought she might be going to another pimp and on at
least one occasion to prevent her from leaving the motel room, constitutes overwhelming
evidence that defendant used force, violence, menace and threats to deprive her of her
liberty with the intent to force her to work as a prostitute. In other words, there was
overwhelming admissible evidence that defendant was guilty of human trafficking.
Although the challenged opinion evidence did not expressly refer to pimping or
pandering, but only to human trafficking, defendant contends it was an inadmissible
opinion of defendant’s guilt on those charges, as well. Even assuming this is so for the
sake of argument, there was overwhelming admissible evidence that defendant was guilty
of those charges. Pandering is the knowing and purposeful conduct of encouraging or
otherwise influencing another person to become a prostitute. (People v. Zambia (2011)
51 Cal.4th 965, 972, fn. 5, 980; § 266i, subds. (a)(1), (2).) E.D.’s and J.H.’s testimony
constituted overwhelming evidence that defendant encouraged them to become
prostitutes. Pimping is the deriving of support from another person’s prostitution.

13
(§ 266h, subd. (a).) J.H.’s testimony constitutes overwhelming evidence that defendant
derived support from her prostitution.
On this record, it is not reasonably probable a result more favorable to defendant
would have been reached on any of the charges in the absence of Johnson’s opinion that
this is a human trafficking case and that E.D. and J.H. are human trafficking victims.

c. Defendant was Properly Convicted of Pimping and Pandering a
Minor Both Under 16 and Over 16 Years of Age

Defendant was convicted of both pimping and pandering J.H. when she was under
16 years of age in violation of section 266h, subdivision (b)(2) [pimping] and
section 266i, subdivision (b)(2) [pandering] (counts 6 and 7, respectively). He was also
convicted of both pimping and pandering J.H. when she was over 16 years of age in
violation of section 266h, subdivision (b)(1) [pimping] and section 266i, subdivision
(b)(1) [pandering] (counts 8 and 9, respectively). Defendant contends his convictions on
counts 8 and 9 must be vacated because both pimping and pandering are crimes of a
continuing course of conduct which cannot support separate convictions.9 Defendant is
incorrect.
“In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct.” (People v. Reed (2006)
38 Cal.4th 1224, 1227, italics added, citing § 954.) But a person may not be subject to

9 The People contend defendant forfeited this claim by failing to demur to the
complaint pursuant to section 1004, subdivision (5) [defendant may demur to accusatory
pleading when it appears on the face of the complaint that “it contains matter which, if
true, would constitute a legal justification or excuse of the offense charged or other legal
bar to the prosecution.”]. The People are incorrect. “An accusatory pleading may charge
two or more different offenses connected together in their commission, or different
statements of the same offense . . . .” (§ 954.) Defendant’s contention is not that it
appears upon the face of the complaint that his actions were legally justified or excused,
or that there was any bar to prosecution under both subdivisions (b)(1) and (b)(2) of the
pimping and pandering statutes. Defendant’s contention is that he could not be separately
convicted of violating both subdivisions during a single course of conduct.

14
multiple convictions for the same crime arising out of a single course of conduct.
(People v. Lewis (1978) 77 Cal.App.3d 455, 461.) Thus, the issue presented by
defendant’s contention is whether pimping and/or pandering a minor under 16 years of
age is the same crime as pimping and/or pandering a minor over 16 years of age. As we
shall explain, they are not.
Pimping is defined in section 266h, subdivision (a) and pandering is defined in
section 266i, subdivision (a).10 Violation of both section 266h, subdivision (a) [pimping]
and section 266i, subdivision (a) [pandering] are crimes of a “continuous, ongoing
nature.” (Leonard, supra, 228 Cal.App.4th at p. 489 [pandering]; Lewis, supra,
77 Cal.App.3d at p. 461 [pimping].)11
But neither Leonard nor Lewis involved a minor victim victimized both before and
after her 16th birthday and therefore neither is particularly helpful here. This is because
defendant was charged under subdivision (b) of both statutes, not subdivision (a).
Subdivision (b) of both section 266h and section 266i describes a different crime than
subdivision (a). The general pimping and pandering crimes are described in subdivision
(a) of each statute. By contrast, subdivision (b) of each statute makes it a separate crime
to pimp and/or pander a minor (§ 266h, subd. (b) [pimping], § 266i, subd. (b)
[pandering].) Further, subdivision (b) of both statutes distinguishes between pimping
and/or pandering a minor under 16 years of age and one that is over 16 years of age by

10 Subdivision (a)(1) through (6) of section 266i defines different circumstances
under which the crime of pandering may be committed, not six different crimes. (People
v. Lax (1971) 20 Cal.App.3d 481, 486.) In this case, the circumstances alleged were
“procuring” in violation of subdivision (a)(1).

11 As such, a defendant cannot be convicted of more than one offense of pimping and
one offense of pandering when the offenses are part of a single course of conduct, even if
that occurs over a long period of time. (Leonard at p. 489.) It is the single course of
conduct element that distinguishes Leonard from People v. DeLoach (1989)
207 Cal.App.3d 323, in which, based on evidence showing two distinct acts of pandering,
separated in time by several months, with no pandering conduct intervening, the Court of
Appeal held multiple convictions were proper.

15
providing greater mid and high term sentences when the minor is under 16 years of age.12
Thus, the age of the minor victim is an element of the crimes of pimping a minor in
violation of section 266h, subdivisions (b)(1) and (2) and pandering a minor in violation
of section 266i, subdivisions (b)(1) and (2). (See e.g. People v. Alvarado (2001)
87 Cal.App.4th 178, 195 [where age is element of crime, it cannot also be used as
aggravating factor in sentencing]; People v. Quinones (1988) 202 Cal.App.3d 1154,
1159, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12.)
[same].) Thus, subdivisions (b)(1) and (2) of sections 266h and 266i define different
crimes depending on the victim’s age, not the same crime. A perpetrator cannot escape
criminal liability for the separate crimes of victimizing a minor under 16 years of age and
a minor over 16 years of age by beginning the victimization when the minor is under 16,
and continuously victimizing the same minor until he or she turns 16.

d. Section 654

Defendant’s 36-year prison sentence included, in relevant part, a base term of
16 years (the eight year upper term doubled pursuant to Three Strikes) on count 10
(human trafficking); plus a consecutive 4 years (one third the six year midterm (2 years)
doubled pursuant to Three Strikes) on count 6 (pimping J.H. while she was under 16);
plus a consecutive 4 years (one third the six year midterm (2 years) doubled pursuant to
Three Strikes) on count 7 (pandering J.H. while she was under 16). He contends
section 654 proscribed multiple punishments on counts 6 and 7 and counts 6 and 10.13

12 If the victim is 16 years of age or older, each crime is punishable by imprisonment
in the state prison for three, four, or six years. (§ 266h, subd. (b)(1) [pimping]; § 266i,
subd. (b)(1) [pandering].) If the victim is under 16 years of age, each crime is punishable
by three, six or eight years. (§ 266h, subd. (b)(2) [pimping]; § 266i, subd. (b)(2)
[pandering].)

13 At the sentencing hearing, defense counsel argued that section 654 applied to all
counts. On appeal, he argues only that section 654 proscribes separate sentences on
counts 6 and 7 and 6 and 10.

16
We agree that section 654 proscribes separate sentences on counts 6 and 7, but disagree
as to counts 6 and 10.
Section 654 provides: “An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) It “prohibits multiple
punishment for a single physical act that violates different provisions of law.” (People v.
Jones (2012) 54 Cal.4th 350, 358.) But for purposes of section 654, “an act” may include
a course of conduct. (People v. Chung (2015) 237 Cal.App.4th 462, 467.) Thus,
section 654 precludes “multiple sentences where the defendant commits different acts
that violate different statutes but the acts comprise an indivisible course of conduct
engaged in with a single intent and objective. [Citation.]” (Alvarado, supra,
87 Cal.App.4th at p. 196.) The divisibility of a course of conduct depends on the
“ ‘ “ ‘intent and objective’ of the actor.” [Citation.]’ [Citation.]” (People v. Archer
(2014) 230 Cal.App.4th 693, 704.) Intent and objective are factual questions, the trial
court’s determination of which we review for substantial evidence. (Chung at p. 469;
People v. Petronella (2013) 218 Cal.App.4th 945, 964.)

1. Defendant’s acts of pimping J.H. when she was under 16
years of age (count 6) and pandering J.H. when she was
under 16 years of age (count 7) was a single course of
conduct within the meaning of section 654

The trial court found section 654 inapplicable to pimping and pandering as
charged in counts 6 and 7, reasoning that they are different crimes: “The acts are
different. The elements are different. And the time in which one pimps and the time in
which one panders are different time periods.” The trial court is correct that pimping and
pandering are different crimes, but incorrect in its conclusion that this fact makes
section 654 inapplicable.
Pandering is, among other things, the procuring of another person for the purpose
of prostitution. (§ 266i, subd. (a)(1); People v. Dixon (2011) 191 Cal.App.4th 1154, 1156

17
[a panderer is “ ‘ “one who procures the gratification of the passion of lewdness for
another.” ’ [Citation.]”].) It requires no monetary gain. (Aguilera v. Superior Court of
Los Angeles County (1969) 273 Cal.App.2d 848.) By contrast, pimping is the deriving of
support from another person’s prostitution. (§ 266h, subd. (a).) “It is necessarily part of
the aim, objective and intent of a panderer that the person who is the object of the
pandering become a prostitute. . . .” (DeLoach, supra, 207 Cal.App.3d at p. 337.) But it
is not an element of pandering that the panderer receives remuneration directly from the
prostitute. For example, in Aguilera, supra, evidence that a maitre d’ at an expensive
restaurant referred customers to a prostitute was sufficient to support a charge of
pandering against the maitre d’. Because the crimes have different elements, it is
“possible to commit one offense without committing the other.” (Zambia, supra,
51 Cal.4th at p. 981, fn 7.) But that is not the test for applicability of section 654 – an
issue the Zambia court did not address because the defendant in that case was convicted
of only a single count of pandering. The test is whether the defendant’s acts constituted a
single course of conduct, during which the defendant had a single intent and objective,
which resulted in violation of different statutes. (Alvarado, supra, 87 Cal.App.4th at
p. 196.) If so, sentence may be imposed on only the count providing for the longest
potential term of imprisonment; sentence on the other count must be stayed.14
The only reasonable inference from the evidence in this case is that defendant
engaged in a single course of conduct of pimping and pandering for which he had but one
intent and objective: procuring J.H. for the purposes of prostitution so that he could
derive support from her prostitution. As such, section 654 precluded separate sentences
on counts 6 and 7.

14 The gist of the discussion between defense counsel and the trial court was whether
section 654 required concurrent sentences. In fact, if section 654 is applicable, the
defendant must be sentenced under the “provision that provides for the longest potential
term of imprisonment” and sentence on the other count must be stayed.

18
 2. Section 654 does not preclude multiple sentences for
pimping J.H. when she was under 16 years of age (count
6) and human trafficking J.H. when she was a minor
(count 10)

We do not reach the same conclusion with respect to the convictions on counts 6
and 10. This is because the evidence showed defendant pimped J.H. for the first time in
September or October 2009. On that occasion, J.H. agreed to defendant’s proposal that
she sleep with men for money. Defendant did not, in the beginning of his pimp/prostitute
relationship with J.H., use force to violate her personal liberty with the intent of obtaining
her forced labor or services. It is unclear when, exactly, defendant began using such
force. Other than the beating that occurred in September 2011 when she was pregnant,
J.H. does not state the date on which defendant beat her to keep her from switching
pimps, or the date he beat her to keep her from leaving the motel room. But a reasonable
inference from the record is that these violations of J.H.’s personal liberty occurred later
in their relationship and certainly did not co-exist during the entirety of the pimping
relationship. At the point defendant began using violence to restrict J.H.’s personal
liberty, defendant began a new criminal transaction – human trafficking. Under these
circumstances, section 654 does not preclude separate sentences on counts 6 and 10.

DISPOSITION

The judgment is modified as follows: (1) the term imposed on count 7 is stayed
pursuant to section 654 pending completion of the term imposed on count 6, the stay then
to become permanent; and (2) to reflect 828 days of presentence custody credits based on
the People’s concession, comprised of 720 days in actual custody and 108 days of good
conduct/work credits. The superior court is directed to prepare an amended abstract of

19
judgment and to send a certified copy to the Department of Corrections and
Rehabilitation. As so modified, the judgment is affirmed.

RUBIN, J.
WE CONCUR:

BIGELOW, P. J.

FLIER, J.

20