Filed 7/29/16 P. v. Nettles CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H041143
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1121309)
v.
DANIEL JAMIN NETTLES, SR.,
Defendant and Appellant.
I. INTRODUCTION
Defendant Daniel Jamin Nettles, Sr. appeals after a jury found him guilty of
pimping a minor over the age of 16 (Pen. Code, § 266h, subd. (b)(1)),1 procuring a minor
over the age of 16 for prostitution (§ 266i, subd. (b)(1)), pimping an adult (§ 266h,
subd. (a)), and human trafficking a person under the age of 18 (§ 236.1, subd. (c)). Eden
Doe was the alleged victim in the three counts involving a minor, while Mia Doe was the
alleged victim in the count of pimping an adult.
Defendant was sentenced to an eight-year prison term for human trafficking, with
a consecutive one-year four-month prison term for pimping an adult. The terms for the
other two offenses were stayed pursuant to section 654.
1
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends the trial court erred by instructing the jury on
human trafficking pursuant to a version of CALCRIM No. 1243 that incorporated post-
offense amendments to section 236.1. Defendant also contends that the trial court erred
by failing to instruct the jury that Mia Doe was an accomplice whose testimony required
corroboration, and that the instructional errors cumulatively prejudiced him. For reasons
that we will explain, we will affirm the judgment.
II. BACKGROUND
A. Testimony of Eden Doe
Eden Doe was 16 years old in March of 2010. She was about five feet three
inches tall and weighed about 125 pounds. Eden had heard her friend Cherish mention
defendant’s name before and knew that he lived in the same apartment complex as her
friend. Cherish had mentioned that defendant was a pimp.
One night, Eden snuck out of her house and stayed out all night with a friend. On
her way home the next morning, Eden met defendant at a light rail station. Defendant
appeared to be about six feet tall and appeared to weigh about 190 pounds.2 Eden asked
defendant for a cigarette and then conversed with him. Defendant invited Eden to come
over to his apartment, indicating he would give Eden some marijuana. Eden went home
instead, but after her mother yelled at her, she returned to the light rail station, where she
again saw defendant. Defendant suggested they go smoke marijuana at his apartment
with his girlfriend. Eden agreed and accompanied defendant to his apartment.
Defendant’s girlfriend, Mia, was at the apartment, along with two small children.
Eden, Mia, and defendant smoked marijuana in the living room. When their conversation
turned to prostitution, defendant told Eden “that was what [she was] going to do.” Mia
agreed, saying, “[Y]eah.” Defendant had been “really nice” at first, but at this point he
2
Defendant testified that he was five feet ten inches tall and weighed about 172 or
173 pounds at that time.
2
became more serious and made her feel scared. At some point, defendant told Eden that
he knew what school she attended and that he would send Mia to Eden’s school to beat
her up.
Eden had never performed any acts of prostitution before. Defendant said that
Mia would teach Eden “how to do it.” Eden was “really scared” and thought she was
going to die. At defendant’s direction, Eden followed Mia into a bedroom. Mia gave
Eden clothes to wear, including shorts that exposed part of her buttocks.
Defendant received a call on his cell phone. He handed the phone to Mia, who
had a conversation with the person on the other end of the line. Afterwards, defendant
and Mia told Eden they were going to a Jack in the Box. Feeling “forced” to go, Eden
accompanied Mia to the Jack in the Box, where they met three men. Two of the men
were Latin and one was African American. Mia seemed to know the men. Eden and Mia
got into a car with the three men. They drove to a liquor store, where the men purchased
alcohol, and then to a hotel. Eden and Mia went into a hotel room with one of the Latin
men. Eden was given beer to drink, and she smoked more marijuana.
At some point, Mia was talking on the phone, and Eden could hear defendant’s
voice on the other end of the line. Mia told Eden to talk to defendant and to say that
“everything was okay.” When Eden got on the phone, defendant asked about the race of
the three men. Mia instructed Eden to say that the men “weren’t black,” and Eden
complied.
After the phone call, Mia instructed Eden to go into the bathroom, where the Latin
man was taking a shower after having had sex with Mia. When the Latin man got out of
the shower, he told Eden to take off her clothes, and she complied. The Latin man put his
penis in Eden’s vagina. Mia then knocked on the door. She told Eden, “Let’s go,” and
they left the hotel room. Mia was on the phone with defendant again, and she was
counting money. Eden spoke to defendant, who was asking “if everything was okay.”
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Eden could hear defendant, Mia, and the three men engaging in negotiations.
Afterward, Eden went back into the hotel room, where she watched Mia perform oral sex
on one of the men. Eden and Mia then left the hotel again, and Eden saw Mia counting
money again. They took a taxi cab back to defendant’s apartment.
At the apartment, Eden got onto a mattress with defendant and Mia. Eden
removed her clothing after defendant told her to because she was “scared for [her] life.”
Defendant had oral sex with both Eden and Mia. Defendant then instructed Eden and
Mia to give each other oral sex. However, they did not do so.
At some point, Mia got up out of bed. Defendant then got on top of Eden and
began having sex with her. Defendant also put his penis into Eden’s mouth. Defendant,
who did not use a condom, told Eden that she was “going to be his next baby momma.”
Eden spent the night in defendant’s apartment. When she woke up in the morning,
Eden smoked more marijuana, which defendant gave to her. Defendant asked her
questions about what had happened at the hotel. Eden told defendant that the three men
were African American and Latin. She also told defendant that she had sex with one of
the Latin men. Defendant became angry and began yelling. He was upset that one of the
men was African American, and he told Mia that Eden should have just watched and
learned. Defendant was “scary” when he was yelling, and he hit Mia in the face.
Defendant then grabbed Mia by the hair and threw her to the ground. This scared Eden,
who thought “he could do that to [her].”
Defendant told Eden to get ready to leave and said they were going to “The
Blades.” Mia again gave Eden “revealing” clothes to wear. Eden, Mia, defendant, and
the two children took a train from the light rail station to a BART station. During the
train ride, defendant repeatedly instructed Eden not to look up and not to look at any
other guys. Eden complied because she was scared.
At the Concord BART station, defendant’s mother and stepfather picked up the
group. Defendant and his parents spoke about “mak[ing] some money.” They went to a
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park, where Eden smoked more marijuana with Mia and defendant. Defendant’s parents
then drove to a parking lot, where they dropped Eden and Mia off. Defendant told Eden
and Mia to “see if there were any tricks.” Eden and Mia walked around, talking to men
who drove up in cars. The men asked questions such as “how much money are you going
to charge” and “do you do drugs.” Neither Eden or Mia got into a car with any of the
men.
Defendant later returned to the parking lot. Defendant was mad at Eden because
he had instructed her not to look at other guys. Defendant said he was going to “take it
out on Mia,” who should have told Eden the rule.
Eden and Mia continued to walk around, but they never found any customers.
Mia eventually brought Eden to a house where defendant was present along with another
woman and a child. Defendant told the other woman that Eden was his “new girl,” and
Mia and the other woman discussed teaching Eden “how to be a ho.”
After about an hour, defendant’s mother drove the group back to defendant’s
parents’ house. On the drive, defendant and his stepfather argued about how to teach
Eden “to be a ho.” Defendant’s stepfather said he was going to call someone to teach
her, but defendant said that “he had it under control.” Defendant’s stepfather also said
that he wanted Eden, which scared her. Defendant’s parents were mad that Eden and Mia
had not found anyone to give them money for sex. At the house, defendant’s parents
talked about “chains and whips.” Defendant’s mother eventually drove defendant, Eden,
Mia, and the children back to San Jose.
Back at defendant’s apartment, defendant instructed Eden and Mia to get naked
and get into the bed. Defendant had sex with Eden and may also have had sex with Mia.
The next morning, Eden got up and went to the bathroom. Eden waited until she
thought it was safe and then left the apartment. Eden went to school, but she got into
trouble at school for failing to attend detention. Her father picked her up from school and
later brought her to a hospital.
5
B. Testimony of Mia Doe
Mia Doe was found unavailable after she failed to appear at trial, and thus her
preliminary hearing testimony was read to the jury. At the preliminary hearing, she
testified pursuant to an agreement that the prosecution would not use any of her
testimony against her.
Defendant was Mia’s boyfriend in 2010. Before meeting defendant, Mia had
engaged in sex with men for money. After defendant moved in with her and her children,
Mia would sometimes have sex for money if they did not have enough money for food,
which often happened at the end of the month. Defendant had no job during the time he
and Mia lived together. Mia would sometimes give defendant money.
When Eden first came over to the apartment, Mia commented that she looked
“really young,” but Eden replied, “I’m grown enough.” According to Mia, Eden came
over looking for defendant. When Mia went into the bedroom to get dressed, Eden
followed her and asked what she was doing. Mia said she was going “turn a date”
because she needed money. Eden said she wanted to go. When Mia questioned why,
Eden said, “Oh, I’ve done it before.” Mia and Eden then left the apartment. According
to Mia, Eden remained in the clothes she had been wearing when she arrived at the
apartment.
Mia and Eden walked to a Jack in the Box, where they met three “johns” that Mia
had arranged to meet. Mia and Eden got into a car with the men, who drove to a liquor
store and then a hotel. One of the men rented a room, and they all went into the room.
Eden followed Mia into the bathroom, where they discussed “what [they] were about to
do.” One of the men, who was half African American, came into the bathroom and said
he wanted to have sex with Eden and that he would pay $100, the amount Mia had
previously discussed with him. Mia performed oral sex on the man, then left the
bathroom.
6
Mia later knocked on the bathroom door and asked if Eden was okay. Mia said
that she had to call “dad,” referring to defendant. When she called defendant, he asked to
speak with Eden. Mia denied telling Eden what to say to defendant, but she
acknowledged that defendant had a rule against having sex with other African American
men.
Eden gave Mia around $150 to hold after coming out of the bathroom. Mia and
Eden left the hotel but came back after one of the three men called. Eden went with one
of the men to a second room. When she returned, she gave Mia another $150 to hold.
Mia and Eden then called a cab and left. During the cab ride, Eden was holding her head
and had watery eyes. Eden said she was fine, however. Mia paid for the cab and then
gave Eden the rest of her money back. Eden later gave the money to defendant.
Mia and Eden returned to the apartment. After dinner, Mia and defendant had
sexual intercourse. Defendant then told Mia and Eden to have sexual intercourse with
one another. According to Mia, they did so, even though she did not want to. Mia was
afraid of defendant becoming angry and hitting her, which he had done before.
The next morning, defendant pulled Mia out of bed by her hair. He reprimanded
Mia for having “let a black guy touch” Eden, and then he beat her. Defendant then told
Mia to get dressed and to get Eden some clothes. Defendant said they were going out of
town, but he did not say where they were going.
Eden, Mia, defendant, and Mia’s children went to the light rail station and took a
train to the Fremont BART station, then took a BART train to Concord. Defendant’s
mother took the group to Fairfield, where they dropped Mia’s children off at the home of
defendant’s “baby mama” and then to an area where defendant had brought her before.
Defendant and Eden got out, and defendant said, “You know what to do.” Mia and Eden
walked around all day, but neither was able to solicit any customers. Defendant came
back to check on them at one point.
7
Mia denied that defendant was a pimp for her or Eden. She asserted that Eden
wanted to do everything that she did. Eden was not shy or afraid and appeared
comfortable interacting with Mia and defendant. Eden brought and smoked her own
marijuana. Eden did not want to go home and said that her parents were going to send
her away.
Mia had five prior convictions of crimes involving moral turpitude, including a
2007 conviction of engaging in prostitution, a 2004 conviction of loitering with the intent
to commit prostitution, and three convictions of petty theft.
C. Investigation
After going to the hospital, Eden was transported for a Sexual Assault Response
Team exam. Sexual Assault Forensic Examiner Celia Breazile examined Eden. Eden
reported that defendant had put his penis into her vagina two times and had also put his
fingers into her vagina and his mouth on her vagina. She referred to defendant as a
“wannabe pimp” and reported that defendant called her “one of [his] hos.” Eden reported
having had sexual intercourse with a second person as well, referring to him as “some
trick.” Breazile observed abrasions and redness as well as debris during her vaginal
exam of Eden. She took DNA and semen swabs during the exam. Later tests confirmed
the presence of semen. Defendant was the source of the semen.
San Jose Police Officer Tam Truong interviewed Mia. The interview was played
for the jury at trial. Mia’s statement was inconsistent with her preliminary hearing
testimony in several respects: Eden had not claimed to have prior experience
prostituting, defendant was Mia’s pimp and would take her money after she engaged in
prostitution, and Eden did not smoke her own marijuana at the apartment.
Officer Truong also interviewed defendant. The interview was played for the jury
at trial. Defendant admitted having been a pimp and intending to be Mia’s pimp, but he
claimed she was “a dope fiend” who did what she wanted, causing him not to want to
pimp any more. Defendant denied knowing Eden but recognized a photograph of her as
8
someone who hung out with Cherish. Defendant denied inviting Eden to his apartment,
talking to her about prostitution, and having sex with her. Defendant speculated that his
sperm could be in Eden’s vagina if she had taken a condom out of the trash and put it into
her vagina. Defendant consented to a DNA swab.
San Jose Police Officer Jeremy Martinez testified as an expert in human
trafficking. Pimps are often called “dad” or “daddy” by the prostitutes working for them,
but sometimes prostitutes consider their pimps to be their boyfriends. A prostitute may
be referred to as a “ho” or a “bitch.” A “trick” or a “john” is someone who pays for
sexual services. The phrase “walk the blade” means to walk in an area where prostitution
frequently occurs. Pimps often target runaways for prostitution because they are easily
manipulated. Pimps commonly go to places like public transportation sites to find
women. Pimps will often offer women alcohol or drugs and then manipulate them into
becoming prostitutes. Pimps sometimes seek to get a woman pregnant in order to create
a “sense of connection” so that they can assert more control. It is common for a pimp to
have a rule against prostitutes having sex with other black men, because the pimp fears
that other black men are pimps and that the pimp will lose his income from his
prostitutes. It is also common for a pimp to require his prostitutes to keep their heads
down, as a sign of submission.
D. Defense Case
Defendant admitted that he was a pimp when he met Mia. He had met Mia
through an ex-girlfriend and had helped her move into her San Jose apartment. Mia said
she used to work as a prostitute but that she had not been getting any “dates” lately. Mia
wanted defendant to help her. Defendant agreed. At some point, Mia said she “didn’t
want to do it,” but defendant later discovered that Mia was working as a “renegade”
prostitute, without him serving as her pimp. By March of 2010, he did not consider
himself a pimp.
9
Defendant claimed he did not know Eden, although he had seen her at his
apartment complex before. The only other time he had seen her was in court. He would
not have pimped for a 16-year-old girl, nor would he be interested in such a young girl
romantically. Defendant believed that Mia had used Eden to set him up.
Defendant admitted he had pleaded guilty to misdemeanor domestic violence. He
initially asserted that Mia had lied about him beating her, but he later admitted he had
pushed and slapped her. Defendant also admitted he had been convicted of felony drug
possession, misdemeanor battery, misdemeanor receiving stolen property, felony battery
on a spouse or cohabitant, and forgery or passing a bad check (two convictions). He had
been arrested for pimping, which led to a probation violation.
E. Charges, Verdicts, and Sentence
Defendant was charged with pimping a minor over the age of 16 (§ 266h,
subd. (b)(1); count 1), procuring a minor over the age of 16 for prostitution (§ 266i,
subd. (b)(1); count 2), pimping an adult (§ 266h, subd. (a); count 3), and human
trafficking a person under the age of 18 (§ 236.1, subd. (c); count 4). Counts 1, 2, and 4
pertained to Eden Doe; count 3 pertained to Mia Doe.
A jury found defendant guilty of all four charges. The trial court sentenced
defendant to an eight-year prison term for human trafficking (count 4), with a consecutive
one-year four-month prison term for pimping an adult (count 3); the terms for the other
two offenses (counts 1 and 2) were stayed pursuant to section 654.
III. DISCUSSION
A. Challenges to Human Trafficking Instruction
Defendant challenges the jury instruction on human trafficking, claiming the
instruction erroneously incorporated amendments to section 236.1 that became effective
after the March 2010 incident involving Eden Doe. Defendant contends that when
section 236.1 was amended in 2012, the definition of human trafficking was broadened,
10
and thus the instruction violated the state and federal prohibitions against ex post facto
laws. Defendant also contends that the instruction on human trafficking violated his
rights under the due process and jury trial provisions of the Fifth, Sixth, and Fourteenth
Amendments to the federal Constitution.
1. Legal Background
“Article I, section 10 of the United States Constitution provides: ‘No state
shall . . . pass any . . . ex post facto law . . . .’ The ex post facto clause prohibits only
those laws that ‘retroactively alter the definition of crimes or increase the punishment
for criminal acts.’ [Citation.]” (People v. McKee (2010) 47 Cal.4th 1172, 1193.) The
California state Constitution also prohibits ex post facto application of laws. (Cal.
Const., art. I, § 9; see People v. Farley (1996) 45 Cal.App.4th 1697, 1705.)
In March of 2010, former section 236.1 provided in pertinent part: “(a) Any
person who deprives or violates the personal liberty of another with the intent to effect
or maintain a felony violation of Section 266, 266h, 266i, 267, 311.4, or 518, or to obtain
forced labor or services, is guilty of human trafficking. [¶] . . . [¶] (d)(1) For purposes
of this section, unlawful deprivation or violation of the personal liberty of another
includes substantial and sustained restriction of another’s liberty accomplished through
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. [¶] (2) Duress includes knowingly destroying, concealing,
removing, confiscating, or possessing any actual or purported passport or immigration
document of the victim.” (Stats. 2005, ch. 240, § 7.)
In 2012, section 236.1 was amended by Proposition 35 and substantially rewritten.
(Prop. 35, as approved by voters, Gen. Elec. (Nov. 6, 2012) [see § 6].) The offense
described in former section 236.1, subdivision (a) is now described in section 236.1,
subdivision (b), with additional enumerated target offenses: “Any person who deprives
11
or violates the personal liberty of another with the intent to effect or maintain a violation
of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is
guilty of human trafficking . . . .”
The 2012 amendments to section 236.1 placed the definitions of certain terms in
subdivision (h). Section 236.1, subdivision (h)(3) provides: “ ‘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.” Section 236.1,
subdivision (h)(4) provides: “ ‘Duress’ includes a direct or implied threat of force,
violence, danger, hardship, or retribution sufficient to cause a reasonable person to
acquiesce in or perform an act which he or she would otherwise not have submitted to or
performed; a direct or implied threat to destroy, conceal, remove, confiscate, or possess
any actual or purported passport or immigration document of the victim; or knowingly
destroying, concealing, removing, confiscating, or possessing any actual or purported
passport or immigration document of the victim.”
Section 236.1, subdivision (i) now provides: “The total circumstances, including
the age of the victim, the relationship between the victim and the trafficker or agents of
the trafficker, and any handicap or disability of the victim, shall be factors to consider in
determining the presence of ‘deprivation or violation of the personal liberty of another,’
‘duress,’ and ‘coercion’ as described in this section.”
2. Proceedings Below
Pursuant to CALCRIM No. 1243, the jury was instructed as follows: “The
defendant is charged in count four with human trafficking in violation of Penal Code
Section 236.1. To prove that the defendant is guilty of this crime, the People must prove
that: [¶] (1) The defendant either deprived another person of personal liberty or violated
12
that other person’s personal liberty; and [¶] (2) When the defendant did so, he intended
to effect or maintain a felony violation of Penal Code Section 266 (h) or Penal Code
Section 266 (i). [¶] Deprivation [or] violation of personal liberty as used here includes
substantial and sustained restriction of another [person’s] liberty accomplished through
fraud, deceit, coercion, violence, duress, menace, [or] threat of unlawful injury to the
victim, or to another person under circumstances in which the person was receiving or
perceiving the threat reasonably believes that [it is] likely that the person making the
threat would . . . carr[y] it out. [¶] Duress means a direct or implied threat of violence,
danger, hardship, or retribution that is enough to cause a reasonable person of ordinary
sensitivity to do or submit to something that he or she would not otherwise do or submit
to. When deciding whether the act was accomplished by duress, consider all the
circumstances, including the age of the other person and his or her relationship to the
defendant.”
Defendant did not object to the above instruction.
3. Analysis
The question presented in this case is whether, at the time of defendant’s offenses,
section 236.1 defined duress solely in terms of “knowingly destroying, concealing,
removing, confiscating, or possessing any actual or purported passport or immigration
document of the victim” (former § 236.1, subd. (d)(2); see Stats. 2005, ch. 240, § 7) or
whether duress also could be found if the defendant made “a direct or implied threat of
force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to
acquiesce in or perform an act which he or she would otherwise not have submitted to or
performed” (§ 236.1, subd. (h)(4)). This case also presents the question of whether, at the
time of defendant’s offenses, “[t]he total circumstances, including the age of the victim”
could to be considered in determining the existence of duress. (§ 236.1, subd. (i).) In
other words, we must determine whether the 2012 amendments to section 236.1
expanded the definition of duress or merely clarified existing law.
13
We apply settled rules of statutory construction in determining the meaning of
“duress” as used in former section 236.1. In interpreting the statute, “ ‘our fundamental
task . . . is to determine the Legislature’s intent so as to effectuate the law’s purpose.’
[Citation.] ‘We begin with the plain language of the statute, affording the words of the
provision their ordinary and usual meaning and viewing them in their statutory context,
because the language employed in the Legislature’s enactment generally is the most
reliable indicator of legislative intent.’ [Citations.] The plain meaning controls if there
is no ambiguity in the statutory language. [Citation.] If, however, ‘the statutory language
may reasonably be given more than one interpretation, “ ‘ “courts may consider various
extrinsic aids, including the purpose of the statute, the evils to be remedied, the
legislative history, public policy, and the statutory scheme encompassing the
statute.” ’ ” ’ [Citation.]” (People v. Cornett (2012) 53 Cal.4th 1261, 1265 (Cornett).)
Looking at the plain meaning, the statute in effect at the time of defendant’s
offenses did not limit the definition of duress to acts involving passports or immigration
documents. Rather, former section 236.1, subdivision (d)(2) provided that “[d]uress
includes knowingly destroying, concealing, removing, confiscating, or possessing any
actual or purported passport or immigration document of the victim.” (Stats. 2005,
ch. 240, § 7, italics added.) “ ‘Includes’ is ‘ordinarily a term of enlargement rather than
limitation.’ [Citation.] The ‘statutory definition of a thing as “including” certain things
does not necessarily place thereon a meaning limited to the inclusions.’ [Citation.]”
(Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774.) Thus, by using the word “includes,”
the Legislature indicated that “knowingly destroying, concealing, removing, confiscating,
or possessing any actual or purported passport or immigration document of the victim”
(Stats. 2005, ch. 240, § 7) would be sufficient to constitute duress for purposes of former
section 236.1, but that such an act would not be necessary for a finding of duress. (See
People v. Arnold (2006) 145 Cal.App.4th 1408, 1414 [reading the word “includes” as a
term of enlargement in statutes defining “firearm”].) Moreover, “interpretations that
14
render statutory terms meaningless as surplusage are to be avoided” (People v. Hudson
(2006) 38 Cal.4th 1002, 1010 (Hudson)), and defendant’s proposed interpretation of
former section 236.1, subdivision (d)(2) would render the term “includes” meaningless.
Defendant points out that “there are exceptions to the rule” regarding the term
“includes,” relying on People v. Horner (1970) 9 Cal.App.3d 23 (Horner). That case
does not support defendant’s position, however. In Horner, the court examined former
section 12401, which purported to define “tear gas” for purposes of certain penal statutes.
(Horner, supra, at pp. 26-27.) The statute provided: “ ‘ “Tear gas” ’ as used in this
chapter shall apply to and include all liquid, gaseous or solid substances intended to
produce temporary physical discomfort or permanent injury through being vaporized or
otherwise dispersed in the air. . . .” (Ibid.) Applying the principle that “the words
‘include’ and ‘including’ are ordinarily words of enlargement, and not of limitation,” the
court held that the Legislature intended the term “tear gas” “to include substances not
ordinarily understood to be tear gas.” (Id. at p. 27.) Thus, contrary to defendant’s
representation, the Horner court did not find an exception to the general rule of statutory
interpretation regarding the word “includes.”
Defendant presents several additional arguments in support of his claim that the
plain meaning of former section 236.1 is not dispositive. First, defendant contends the
legislative history shows that the Legislature enacted former section 236.1 in order to
curb international human trafficking and that the statute was not intended to apply to
“general prostitution offenses.”
As noted above, the plain meaning of a statute controls if there is no ambiguity in
the statutory language, and we look to legislative history only if “ ‘the statutory language
may reasonably be given more than one interpretation.’ ” (Cornett, supra, 53 Cal.4th at
p. 1265.) Since we have concluded that under the plain meaning of former section 236.1,
“duress” was not limited to acts involving a victim’s passport or immigration document,
we need not consider the legislative history. However, even assuming that the definition
15
of the “duress” was ambiguous, the legislative history does not support defendant’s
position.3
Defendant references bill analyses of Assembly Bill 22 (A.B. 22), which enacted
former section 236.1 in 2005. As defendant notes, the bill’s author described human
trafficking as “the fastest growing industry in the world” and cited statistics about the
number of people who were being trafficked into the United States. (See Sen. Rules
Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 22 (2005-2006
Reg. Sess.) as amended Sept. 7, 2005, p. 10.) However, as the Attorney General points
out, the bill’s author also referenced the number of American children who are victims
of human trafficking annually. (See Sen. Com. on Pub. Saf., Analysis of Assem. Bill
No. 22 (2005-2006 Reg. Sess.) as amended June 16, 2005, p. P.) The bill’s author also
noted that in addition to confiscating passports and visas, human traffickers “keep victims
enslaved” through “debt bondage, isolation from the public, and confiscation of . . .
pieces of identification.” (See Sen. Com. on Pub. Saf., Analysis of Assem. Bill No. 22
(2005-2006 Reg. Sess.) as amended June 16, 2005, p. P.) Another bill analysis quoted
from a report on human trafficking, which stated that while the majority of victims come
from abroad, some victims are “United States citizens who have fallen into the clutches
of traffickers.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 22 (2005-2006
Reg. Sess.) as amended April 21, 2005, p. E.) The legislative history thus shows that
former section 236.1 was enacted to combat human trafficking of all types, including but
not limited to international human trafficking.
Defendant next contends that the 2012 amendments to section 236.1 show that the
Legislature was “clean[ing] up an oversight” with respect to the definition of duress,
rather than clarifying the meaning of that term. In fact, former section 236.1 was
3
We have taken judicial notice of several documents from the legislative history
of former section 236.1, pursuant to the parties’ requests.
16
amended by the electorate, not the Legislature, through Proposition 35, which enacted the
Californians Against Sexual Exploitation Act (CASE Act). (Prop. 35, as approved by
voters, Gen. Elec. (Nov. 6, 2012) [see §§ 1, 6].) Nothing in the ballot materials or text of
the initiative measure indicates that the electorate’s intent was to expand the definition of
duress. The Legislative Analyst’s analysis of Proposition 35, printed in the ballot
pamphlet for the General Election of November 6, 2012, states that the initiative would
include more crimes in the definition of human trafficking, increase penalties for human
trafficking, provide services for human trafficking victims, change evidentiary rules in
human trafficking cases, require law enforcement training in human trafficking, and
expand requirements for sex offenders. Likewise, nothing in the “Findings and
Declarations” or “Purpose and Intent” sections of the CASE Act indicates an intent to
expand the definition of duress. (Prop. 35, as approved by voters, Gen. Elec. (Nov. 6,
2012) [see §§ 2, 3].)
The Attorney General asserts that the 2012 addition of a more general and
expansive definition of duress “merely codified the long-standing judicial construction
of the term . . . .” In other words, when the Legislature enacted section 236.1 in 2005,
it intended duress to have a meaning consistent with the definition provided by case law.
As explained below, we agree.
In 1985, the court in People v. Pitmon (1985) 170 Cal.App.3d 38 (Pitmon) noted
that “[d]uress, as an element of a criminal offense[,] ha[d] not been previously given legal
definition.” (Id. at p. 48.) The Pitmon court held that in the context of section 288,
which prohibits lewd acts, duress should be given its “commonly understood meaning.”
i.e., “a direct or implied threat of force, violence, danger, hardship or retribution
sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act
which otherwise would not have been performed or, (2) acquiesce in an act to which one
otherwise would not have submitted.” (Pitmon, supra, at p. 50, fn. omitted.) The court
further noted, “The total circumstances, including the age of the victim, and his
17
relationship to defendant are factors to be considered in appraising the existence of
duress.” (Id. at p. 51.) In 2004, the California Supreme Court noted that “[t]he Pitmon
definition of ‘duress’ ha[d] been followed consistently for almost 20 years,” not just with
respect to section 288 but with respect to other sex offenses. (People v. Leal (2004) 33
Cal.4th 999, 1004, 1005 (Leal).)
“It is a settled principle of statutory construction that the Legislature ‘ “is deemed
to be aware of statutes and judicial decisions already in existence, and to have enacted or
amended a statute in light thereof. [Citation.]” [Citation.]’ [Citation.] Courts may
assume, under such circumstances, that the Legislature intended to maintain a consistent
body of rules and to adopt the meaning of statutory terms already construed. [Citations.]”
(People v. Scott (2014) 58 Cal.4th 1415, 1424.)
Here, at the time former section 236.1 was enacted in 2005, the term “duress”
had a “commonly understood meaning” confirmed by case law. (See Pitmon, supra,
170 Cal.App.3d at p. 50; Leal, supra, 33 Cal.4th at pp. 1004-1005.) That meaning was
“a direct or implied threat of force, violence, danger, hardship or retribution sufficient
to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which
otherwise would not have been performed or, (2) acquiesce in an act to which one
otherwise would not have submitted.” (Pitmon, supra, at p. 50, fn. omitted.) It was also
settled that in determining the existence of duress, “[t]he total circumstances, including
the age of the victim, and his relationship to defendant are factors to be considered.” (Id.
at p. 51.) The instruction on duress given in the instant case was consistent with this
definition.
Defendant argues that the Legislature could not have intended to adopt the Pitmon
definition of duress when it enacted former section 236.1 in 2005, because there were
other definitions of duress in existence at that time. First, as noted in Pitmon, the term
duress was defined differently for the defense of duress (§ 26, subd. (6)). In Pitmon, the
court noted that “[t]he defense of duress” had a different definition—“it is established
18
only if one acted out of fear of imminent death or great bodily harm”—and found that
definition to be “inapplicable” in the context of an element of a sex offense. (Pitmon,
supra, 170 Cal.App.3d at p. 49.) Second, as noted in Leal, the term duress was defined
differently for the crimes of rape (§ 261, subd. (b)) and spousal rape (former § 262,
subd. (c); Stats. 1996, ch. 1077, § 15). (See Leal, supra, 33 Cal.4th at p. 1007.) In Leal,
the court found it “clear” that the definitions of duress in the rape and spousal rape
statutes did not apply “to any other sexual offenses.” (Ibid.) Since section 236.1 did not
involve the defense of duress or the crimes of rape or spousal rape, it is reasonable to find
the Legislature intended former section 236.1 to incorporate the Pitmon definition of
duress, including the factors to be considered in determining the existence of duress.
Next, defendant points out that following the 2012 amendments to section 236.1,
the Bench Notes to CALCRIM No. 1243 provided: “This instruction is based on the
language of the statute effective November 7, 2012, and only applies to crimes
committed on or after that date.” However, the 2012 amendments to section 236.1
changed more than the definition of duress. The 2012 amendments to section 236.1 also
amended the definition of the phrase “[d]eprivation or violation of the personal liberty of
another.” (Compare former § 236.1, subd. (d)(1) [Stats. 2005, ch. 240, § 7] with § 236.1,
subd. (h)(3).) Thus, it is far from clear that the cautionary admonition in the Bench Notes
was intended to apply to the definition of duress. Moreover, “the Bench Notes and the
CALCRIM jury instructions are not themselves legal authority.” (People v. Johnson
(2016) 243 Cal.App.4th 1247, 1269.)
Finally, defendant argues that the rule against rendering statutory language
surplusage (see Hudson, supra, 38 Cal.4th at p. 1010) should lead this court to hold that
the Legislature intended to give “duress” a restricted meaning in former section 236.1 As
defendant points out, the 2012 amendments to section 236.1 changed the definition of the
phrase “[d]eprivation or violation of the personal liberty of another” to specify that a
“substantial and sustained restriction of another’s liberty” may be accomplished through
19
“force” or “fear” in addition to “fraud, deceit, coercion, violence, duress, menace, or
threat of unlawful injury to the victim or to another person.” (§ 236.1, subd. (h)(3); see
former § 236.1, subd. (d)(1); Stats. 2005, ch. 240, § 7.) However, this change did not
affect the definition of duress, which is defined as including “a direct or implied threat of
force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to
acquiesce in or perform an act which he or she would otherwise not have submitted to or
performed.” (§ 236.1, subd. (h)(4), italics added.) A threat of force or violence is not the
same as actual force or violence. Thus, including a “threat of force” in the definition of
duress does not render meaningless the terms “force,” “violence” and “threat of unlawful
injury” as used in the current definition of “deprivation or violation of the personal liberty
of another” under section 236.1, subdivision (h)(3).
Because the jury instruction on human trafficking correctly stated the definition
of duress in effect at the time of defendant’s offenses, the instruction did not violate the
prohibitions against ex post facto laws or defendant’s rights under the Fifth, Sixth, and
Fourteenth Amendments.
B. Failure to Instruct on Accomplice Testimony
Defendant contends the trial court erred by failing to instruct the jury that Mia Doe
was an accomplice whose testimony required corroboration.
1. Legal Background
Section 1111 provides that “[a] conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.” Section 1111
defines an accomplice as “one who is liable to prosecution for the identical offense
charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.”
20
A person is “liable to prosecution” for an offense (§ 1111), if he or she is a
principal to that offense. (People v. Lewis (2001) 26 Cal.4th 334, 368-369 (Lewis).)
Principals are “[a]ll persons concerned in the commission of a crime, . . . whether they
directly commit the act constituting the offense, or aid and abet in its commission, or, not
being present, have advised and encouraged its commission . . . .” (§ 31.)
“When there is sufficient evidence that a witness is an accomplice, the trial court
is required on its own motion to instruct the jury on the principles governing the law of
accomplices. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 965-966, disapproved
on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Whether a
witness is an accomplice is a question of fact for the jury when the facts are disputed or
susceptible to different inferences. However, if the evidence establishes as a matter of
law that the witness is an accomplice, the court must instruct the jury of that fact.
(People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271.) Furthermore, if the evidence is
insufficient as a matter of law to support a finding that a witness is an accomplice, the
trial court may make that determination and, in that situation, need not instruct the jury
on accomplice testimony. (Lewis, supra, 26 Cal.4th at p. 369.) A defendant has the
burden to prove by a preponderance of the evidence that a witness is an accomplice.
(People v. Fauber (1992) 2 Cal.4th 792, 834.)
2. Analysis
Defendant asserts that Mia was liable to prosecution for pimping, since Mia knew
Eden was a prostitute and used some of the proceeds of Eden’s prostitution. (See § 266h,
subd. (b).) Defendant points out that the prosecutor even told the jury that Mia could
have been charged because she, like defendant, had encouraged Eden to be a prostitute
and “took the money.”
The Attorney General contends that defendant “did not prove by a preponderance
of the evidence that Mia was an accomplice,” because in his trial testimony he
“vehemently denied knowing Eden and instead suggested that he was being set up by Mia
21
and/or Eden.” However, a defendant need not affirmatively introduce evidence in order
for the trial court to give an accomplice testimony instruction. “When the prosecution
calls an accomplice as a witness, the trial court must instruct the jury that the witness’s
testimony should be viewed with distrust.” (People v. Mincey (1992) 2 Cal.4th 408,
461.) The cases cited by the Attorney General are inapposite and do not hold that an
accomplice instruction is unnecessary when, as here, the sole defendant denies guilt.
(See, e.g., People v. Sagehorn (1956) 140 Cal.App.2d 138, 150-151 [no evidence witness
was the defendant’s accomplice]; People v. Terry (1970) 2 Cal.3d 362, 399 [accomplice
instruction would have been prejudicial to codefendant who “testified in her own behalf,
not as a prosecution witness, and denied her guilt”], disapproved of on other grounds by
People v. Carpenter (1997) 15 Cal.4th 312, 381-382.)
We will assume that an accomplice instruction should have been given because
there was “record evidence” indicating that Mia “participated in (or aided and abetted)”
the crimes of pimping or pandering. (See People v. Williams (1997) 16 Cal.4th 153,
247.) We proceed to consider whether the error was prejudicial.
“A trial court’s failure to instruct on accomplice liability under section 1111 is
harmless if there is sufficient corroborating evidence in the record. [Citation.]
‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be
sufficient to establish every element of the charged offense. [Citations.]’ [Citation.]
The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a
way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]” (Lewis,
supra, 26 Cal.4th at p. 370.)
Defendant argues that he was prejudiced by the lack of an accomplice instruction
because there was no corroboration of Mia’s testimony that Eden gave money to
defendant. (See § 266h, subd. (b) [crime of pimping a minor requires that the defendant
“lives or derives support or maintenance in whole or in part from the earnings or
22
proceeds of the person’s prostitution” or “solicits or receives compensation for soliciting
for the person”].)
As noted above, corroborating evidence need not establish every element of the
charged offense. (Lewis, supra, 26 Cal.4th at p. 370.) “ ‘ “[O]nly a portion . . . of the
accomplice’s testimony need be corroborated” ’ ” and “[i]t is only required that the
evidence ‘ “ ‘tends to connect the defendant with the commission of the crime in such a
way as may reasonably satisfy the jury that the [accomplice] is telling the truth.’ ” ’
[Citation.]” (People v. Miranda (1987) 44 Cal.3d 57, 100, abrogated on other grounds
by People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)
Here, Mia’s testimony about defendant pimping Eden was corroborated by Eden
in many respects, and Eden’s testimony tended to connect defendant with the commission
of that offense such that the jury could be reasonably satisfied that Mia was telling the
truth. Eden corroborated Mia’s testimony about how the two of them met three men at a
Jack in the Box and went to a hotel with the men, about how Eden went into the
bathroom with one of the men, and about how Mia and Eden both spoke to defendant on
the phone afterwards. Eden’s testimony also corroborated Mia’s testimony about other
matters, including defendant’s order that Eden and Mia engage in sexual acts with each
other, defendant’s physical abuse of Mia, and the trip to Concord. In addition,
defendant’s sperm was found in Eden’s vagina, which further connected defendant to the
charged offenses. Also, Mia’s testimony was corroborated by the expert, who explained
that a pimp is often referred to as “dad,” the term Mia said she used when referring to
defendant, and that many pimps have a rule again their prostitutes having sex with other
African American men, as Mia testified defendant had. The instant case is thus
distinguishable from the case defendant relies on, in which the alleged accomplice’s
testimony was “crucial” because he was the only witness to have seen the defendant
attack a particular victim. (People v. Hernandez (2003) 30 Cal.4th 835, 876, disapproved
of on other grounds by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.)
23
In addition, “other instructions given . . . were sufficient to inform the jury to view
[Mia’s] testimony with care and caution.” (See Lewis, supra, 26 Cal.4th at p. 371.) The
jury learned that Mia had five prior convictions of crimes involving moral turpitude and
that she was testifying under an immunity agreement with the prosecution. Pursuant to
CALCRIM Nos. 226 and 316, the jury was instructed that a felony conviction and a
promise of immunity could be considered when evaluating a witness’s testimony. Thus,
“there was no reasonable probability that defendant would have received a more
favorable result if the trial court instructed the jury to view [Mia’s] testimony with
distrust. [Citation.]” (Lewis, supra, 26 Cal.4th at p. 371.)
C. Cumulative Prejudice
Defendant contends there was cumulative prejudice from the multiple alleged
errors in this case. (See People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of trial
errors, though independently harmless, may in some circumstances rise by accretion to
the level of reversible and prejudicial error”].) However, we have not found multiple
errors and thus there is no cumulative prejudice.
IV. DISPOSITION
The judgment is affirmed.
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___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.