People v. Thompson CA2/3

Filed 10/20/20 P. v. Thompson CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B298525

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA456264
v.

TIVEN KEITH THOMPSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Affirmed as modified
in part, reversed in part, and remanded with directions.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

Defendant Tiven Keith Thompson was convicted of
trafficking three minors for commercial sex and raping one of
them. He contends there is insufficient evidence to support two of
the trafficking counts. We conclude that substantial evidence
supports his conviction for trafficking Mykayla C. (count 6) but
that there is insufficient evidence that he trafficked Angela Q.
(count 5). Accordingly, we reverse count 5, modify the judgment
to strike the sentence imposed for that count, and remand with
directions.

PROCEDURAL BACKGROUND

By amended information dated February 27, 2019,
defendant was charged with three counts of human trafficking of
a minor for a commercial sex act (Pen. Code,1 § 236.1, subd. (c)(1);
counts 5–7), one count of human trafficking of a minor for a
commercial sex act by force or fear (§ 236.1, subd. (c)(2); count 8),
and one count of forcible rape of a child over 14 (§ 261,
subd. (a)(2); count 9).2 The information also alleged that
defendant personally used a firearm (§ 12022.5, subd. (a)) to
commit count 8.
After a jury trial at which he did not testify, defendant was
found guilty of counts 5, 6, 8, and 9. The jury was unable to reach
a unanimous verdict on either count 7 or the firearm allegation
associated with count 8; the court declared a mistrial for that
count and allegation and later dismissed them.

1 All undesignated statutory references are to the Penal Code.
2Two additional counts of rape (§ 261, subd. (a)(2); counts 10–11) were
dismissed under section 995.

2
 The court sentenced defendant to an aggregate determinate
term of 16 years 4 months and a consecutive, indeterminate term
of 15 years to life. For the determinate sentence, the court
selected count 9 (§ 261, subd. (a)(2)) as the base count and
imposed the upper term of 11 years. The court imposed
consecutive terms of 2 years 8 months—one-third the midterm of
8 years—for counts 5 and 6 (§ 236.1, subd. (c)(1)). Finally, the
court imposed a consecutive, indeterminate sentence of 15 years
to life for count 8 (§ 236.1, subd. (c)(2)).
Defendant filed a timely notice of appeal.

FACTUAL BACKGROUND

In the fall of 2016, Mykayla (age 15), T.C. (age 15, known
as Ty), Angela (age 14 or 15, known as Angie), and Kayla H.
(age 17) lived together in a group foster home in Simi Valley. As
relevant here, the girls ran away from the group home twice—
first, for three days in late September 2016, then, for two days in
early October 2016. Mykayla and Ty testified at trial; Angie and
Kayla did not.
1. The First AWOL—Day 1
On September 25, 2016, Ty, Mykayla, Kayla, and Angie
were on a group-home outing to the El Capitan theater in
Hollywood when they decided to leave without permission.3 The
girls took the subway to South Los Angeles, where they spent
some time with Ty’s boyfriend, Isaiah.

3 Leaving the group home—or the supervision of group-home staff—
without permission is known as going AWOL, which is short for
“absent without leave.”

3
 On their way back to the train station, the girls met a man
named Laffy, whom none of them knew. He appeared to be in his
early 20s. Laffy was walking back to his car and started talking
to Ty. He asked if the girls wanted to meet his brother; he may
have also offered them marijuana. Ty and Kayla wanted to go
with him, so all four girls got into the car.
Kayla asked Laffy to take her to the blade to make some
money.4 Eventually, he dropped her off on the Imperial blade at
the corner of Crenshaw. Kayla asked Laffy to take care of the
other girls while she worked and offered to pay him to do so.
Laffy took Ty, Mykayla, and Angie to a house just down the
street on the Imperial blade and introduced them to a man
named Blocka.5 The group watched television and smoked some
marijuana Blocka bought for them. Eventually, Laffy left; he
acted like he was going to get Kayla, but neither he nor Kayla
ever came back. Soon thereafter, a man later identified as
defendant arrived. He introduced himself as “Profit the P”—
vernacular for “Profit the Pimp.”
Profit and Ty left to buy alcohol. When they returned, Ty
drank a little bit; Angie drank enough to throw up; and Mykayla
didn’t drink at all. The three girls fell asleep in the living room.
At some point, Ty woke up, and Profit convinced her to
work for him as a prostitute. He took Ty to a hotel room where

4Make money refers to working as a prostitute. Blade is a term used to
describe a street or area where prostitutes go to make money.
5 Although Mykayla later identified Blocka in a six-pack photo array,
and he was ultimately arrested on an outstanding warrant, the record
is silent as to Blocka’s true name and whether he was charged with
any crimes stemming from these events.

4
one of his other girls was working.6 Her name was Wish, and she
appeared to be in her 30s. Shortly thereafter, Profit, Ty, and
Wish went to sleep.
2. The First AWOL—Day 2
When Mykayla woke up at 7:00 or 8:00 the next morning,
Angie and Blocka were still in the house, but Ty and Profit were
gone.
Mykayla and Angie wanted to shower and change, but they
didn’t have any toiletries or clean clothes, so Blocka drove the
girls to Fallas—a discount clothing store—and the 99¢ store.
Angie and Mykayla didn’t have any money, so while Blocka
waited in the car, they stole some clothes from Fallas and stole
some toiletries from the 99¢ store. Mykayla stole a tank top,
sweatpants, underwear, and some chocolate. No one gave her
advice about what kind of clothing to get.7
The girls returned to Blocka’s car, and he brought them
back to his house. When they arrived, Mykayla and Angie
showered and changed. Then, Blocka told them that they needed
to either make some money or leave. Mykayla understood make
money to mean that Blocka wanted her to work as a prostitute.
Mykayla asked Blocka to drive them back to the Simi
Valley group home, but he refused, so Mykayla called the group
home using Angie’s mobile phone. The staff member who
answered told her to go to a police station, where someone would
pick her up. Mykayla replied that she didn’t know where the
nearest station was or how to get there—but the staff member

6 Working means working as a prostitute.
7 The record does not reveal what Angie stole.

5
just told her to find one. Meanwhile, Angie didn’t seem to want to
leave Blocka’s house, and Blocka said Ty would be returning
later. Mykayla had no idea where she was; she had no phone or
transportation; and she didn’t want to leave by herself. She didn’t
know what else to do—so she agreed to work.
2.1. Mykayla and Angie Walk the Imperial Blade
That night, Blocka gave Mykayla and Angie some basic
instructions and sent them out to work the Imperial blade. He
gave each of them a handful of condoms and told them to come
back if they ran out. He also told them to bring him any money
they earned so they would not get robbed. The blade was right in
front of Blocka’s house, and he promised to come out if he saw
anyone trying to grab them.
Mykayla and Angie walked the blade together for at least
an hour, but neither of them caught any dates.8 Men in cars
propositioned both girls—but neither girl agreed to date them.
2.2. Ty Begins Working for Profit
While Mykayla and Angie were walking the Imperial blade
for Blocka, Ty was working for Profit. Profit drove Wish and Ty to
a hotel room for a date—a different room than the one in which
they had spent the previous night. Profit let Wish and Ty out of
the car, and they knocked on the hotel room door. They both had
sex with the man inside, who gave them $200 each.
As they left the room, Wish grabbed Ty’s $200 and called
Profit to pick them up. Ty and Wish got into Profit’s car, and
Wish handed him the money they had earned.

8 Date means have sex with someone for money.

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 2.3. The Santa Ana Blade
Around 10:00 or 11:00 p.m., Profit drove Ty and Wish to the
Imperial blade, where Ty saw Angie and Mykayla. The police
arrived after about 10 minutes, however, so they all left for the
Santa Ana blade in Orange County.
Ty and Wish rode in Profit’s car. Mykayla and Angie rode
in Blocka’s car. Profit told Ty to give him any money she earned.
Similarly, Blocka told Mykayla to call him if she caught any
dates and to give him any money she earned.
When they arrived at the blade, Wish gave Angie, Mykayla,
and Ty some instructions.9 She told the girls that if other pimps
pulled up and tried to get their attention, they should keep their
heads down and avoid eye contact. They should always ask the
tricks10 if they are with law enforcement—and always approach
cars from the driver’s side, because police find that less
suspicious than approaching from the passenger side. They
should demand payment in advance and only let the tricks drive
around the corner; they should not go anywhere else. Finally,
Wish told Ty to give any money she made to Profit and told
Mykayla and Angie to give their earnings to Blocka.
There were a lot of prostitutes—and a lot of tricks—on the
blade that night. Initially, Ty, Mykayla, and Angie stood together
on the same corner and walked together in the same places. But
Mykayla and Angie didn’t catch any dates. As on the Imperial
blade, Mykayla was not actually trying to catch dates; she was
just walking around so it looked like she was working. Any time a

9 Kayla was not on the Santa Ana blade.
10 A trick is a prostitute’s customer.

7
car pulled up, Mykayla would talk briefly to the driver before
walking off.
As such, Profit told Wish he was concerned that Angie and
Mykayla were slowing Ty down. Wish, in turn, told Ty to walk on
the other side of the street and not to hang around the other girls
when she was working.
Ty ultimately caught a date. The date paid her more than
$200. Ty had never handled that much money before, so she
decided to keep it.
3. The First AWOL—Day 3
Sometime the next day, Angie and Mykayla took the bus to
a police station. The police called the group home, who sent
someone to pick them up. Meanwhile, Profit drove Ty to the train
station; he gave her a mobile phone in which he stored his
number under the name “Pimp.” Ty then made her way back to
the group home alone. Kayla found her way back later that night.
4. The Second AWOL—Day 1
Approximately a week later, through a series of phone calls
with Blocka and Profit, the four girls arranged to leave the group
home to meet them again. Each girl was motivated by different
concerns. Mykayla wanted to retrieve her belongings from
Blocka’s house—namely, the clothes she had changed out of when
she had showered there. Mykayla used Angie’s phone to call
Blocka, who said she could pick up her stuff, but she couldn’t stay
with him; she had to get her things and go. On the other hand,
Kayla wanted to work for or with Profit. Ty testified that the
second trip was Kayla’s idea, and Ty went along only because
Kayla had given Profit the group home’s address. Ty also testified

8
that she returned because Profit had threatened to hurt her
family, Mykayla, and Angie if she didn’t come back.
The girls took the train to downtown Los Angeles, where
Blocka and Profit picked them up in two cars. Kayla and Ty got
into Profit’s car. Mykayla and Angie got into Blocka’s car.
The group convened at Blocka’s house. Blocka took
Mykayla, Angie, and Kayla to the Imperial blade; Wish joined
them, along with a woman named Coco.
Ty stayed with Profit. Profit drove her to an apartment that
belonged to his brother; there, he took her into the bathroom and
raped her.
Meanwhile, Wish, concerned about the police presence on
the Imperial blade, arranged for a Lyft to bring her, Kayla,
Mykayla, and Coco—everyone except Angie—to the Western
blade.11 Coco tried to help Mykayla find dates and gave her
pointers about prices and time limits. After about 30 minutes,
Wish said there were too many police officers and not enough
tricks; she arranged for another Lyft to take everyone to an
apartment.
When they arrived, Ty, Profit, and Blocka were there.
Blocka asked Mykayla if she had made any money; she told him
she hadn’t. Profit also asked Mykayla how much money she had
made.
Mykayla, Kayla, and Ty all stayed at the apartment that
night.

11Sometime after Blocka picked her up downtown but before Mykayla,
Kayla, Wish, and Coco took the Lyft to the Western blade, Angie
returned to the group home—but the record does not reveal when, how,
or under what circumstances this occurred.

9
5. The Second AWOL—Day 2
Mykayla woke up in the apartment around midday. She,
Ty, and Kayla showered and dressed. Then, the three of them
went back to Blocka’s house.
Sometime after they arrived, Kayla left for work, and
sometime after that, Mykayla and Ty left the house to look for
her. As they searched, they saw Wish and Profit in a car
following them.12 Mykayla and Ty decided they would be safer in
public and headed to McDonald’s, where Ty would have access to
wifi. Ty called the police to pick them up so they could go back to
the group home. Meanwhile, Mykayla saw Blocka driving by and
hid in a slide on the playground.
When Ty and Mykayla left McDonald’s to continue their
search, they saw Blocka in a car. He pulled up beside them and
said, “Bitches, get in the car. What y’all doing?” Blocka told them
they had left their belongings behind again. Mykayla was scared,
so she and Ty got into the car and returned to Blocka’s house.
Mykayla hurriedly collected her things. She told Ty to come
with her—but Ty wouldn’t leave Kayla. Ty called Kayla on the
phone and Kayla told her, “You bitches need to choose up.”
Mykayla understood Kayla to mean that they should come work
with her—and Kayla was working for Profit.
Mykayla decided to leave on her own. She made her way to
a police station, and someone from the group home came to get
her. Sometime later that day, Ty went to the Inglewood police

12 Profit did not speak to them.

10
station and reported the rape. She underwent a sexual assault
exam, then returned to the group home.13

DISCUSSION

1. Sufficiency of the Evidence for Trafficking Mykayla
(Count 6) and Angie (Count 5)
A criminal defendant may not be convicted of any crime or
enhancement unless the prosecution proves every fact necessary
for conviction beyond a reasonable doubt. (U.S. Const., 5th &
14th Amends.; see Cal. Const., art. I, §§ 7, 15; In re Winship
(1970) 397 U.S. 358, 364; People v. Tenner (1993) 6 Cal.4th 559,
566.) “This cardinal principle of criminal jurisprudence” (Tenner,
at p. 566) is so fundamental to the American system of justice
that criminal defendants are always “afforded protection against
jury irrationality or error by the independent review of the
sufficiency of the evidence undertaken by the trial and appellate
courts.” (United States v. Powell (1984) 469 U.S. 57, 67.)
Here, defendant contends there is insufficient evidence to
support his convictions for trafficking Mykayla (count 6) and
Angie (count 5). He argues that there is no evidence he “had,
attempted to have, or intended to have, a pimp–prostitute
relationship with either Angie or Mykayla … [n]or was there
evidence that [defendant] ever personally persuaded either Angie
or Mykayla to prostitute—Blocka was their pimp and persuader.”

13Ty continued to run away from various group homes and shelters
and to work for Blocka and Profit as a prostitute until January 2017.
During that time, she was repeatedly beaten and raped. We do not
discuss those later events, however, because they are not germane to
the issue in this appeal: defendant’s convictions for trafficking
Mykayla and Angie.

11
The People respond that the “evidence established that
[defendant] engaged in pandering, both directly and through the
prostitute he used to train the girls. In addition, substantial
evidence establishes that [defendant] and Blocka were literal
partners in crime, with [defendant] being the senior partner.”
1.1. Standard of Review
In assessing the sufficiency of the evidence to support a
conviction, we review the entire record to determine whether any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. (People v. Albillar (2010) 51 Cal.4th
47, 59–60.) “The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.)
In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the
judgment the existence of every fact the jury could reasonably
deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) We may not reweigh the evidence or resolve evidentiary
conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The
same standard applies where the conviction rests primarily on
circumstantial evidence. (People v. Thompson (2010) 49 Cal.4th
79, 113.)
Deference is not abdication, however, and substantial
evidence is not synonymous with any evidence. (People v.
Johnson (1980) 26 Cal.3d 557, 576–577.) “ ‘A decision supported
by a mere scintilla of evidence need not be affirmed on appeal.’
[Citation.] Although substantial evidence may consist of
inferences, those inferences must be products of logic and reason

12
and must be based on the evidence.” (In re James R. (2009) 176
Cal.App.4th 129, 135.) Accordingly, we “may not … ‘ “go beyond
inference and into the realm of speculation in order to find
support for a judgment.” ’ ” (People v. Franklin (2016) 248
Cal.App.4th 938, 947; People v. Waidla (2000) 22 Cal.4th 690, 735
[speculation is not evidence and cannot support a conviction].)
Evidence that merely raises a strong suspicion of guilt is
insufficient to support a conviction. (People v. Thompson (1980)
27 Cal.3d 303, 324.)
1.2. Elements of Sex Trafficking
To convict defendant of sex trafficking in counts 5 and 6,
the prosecution was required to prove:
◦ Defendant caused, induced, or persuaded
Mykayla and Angie to engage in a commercial sex
act—or intended to do so;
◦ When defendant acted, he intended to commit the
crime of pandering (§ 266i); and
◦ When defendant did so, Mykayla and Angie were
under 18 years of age.
(§ 236.1, subd. (c); CALCRIM No. 1244.)
To prove the second element—that defendant intended to
commit pandering—the prosecution had to prove:
◦ Defendant intended to use promises, threats,
violence, or any device or scheme to persuade
Mykayla and Angie to become prostitutes,
although he need not have been successful; or
◦ Defendant intended to arrange for Mykayla and
Angie to be prostitutes in either a house of

13
 prostitution or any other place where prostitution
is encouraged or allowed; and
◦ Defendant intended to influence Mykayla and
Angie to be prostitutes.
(§ 266i; CALCRIM No. 1151.) “The language of the pandering
statute describes current conduct on the part of the defendant:
inducing and encouraging. That current conduct is aimed at
producing subsequent conduct by the target: that the target
thereafter engage in acts of prostitution following a defendant’s
inducement or encouragement.” (People v. Zambia (2011) 51
Cal.4th 965, 975.)
1.3. Substantial evidence supports defendant’s
conviction for trafficking Mykayla (count 6).
Defendant contends there is no evidence that he “ever
personally persuaded” Mykayla to work as a prostitute. We
disagree.
First, defendant extolled the benefits of prostitution to
Mykayla. He told her she would earn enough money to buy
whatever she wanted—a car, shoes, clothes—and that she would
meet famous rappers. The jury could reasonably infer that in
doing so, defendant attempted to “cause[ ] or persuade” Mykayla
to work as a prostitute. (§ 236.1, subd. (c).)
Defendant also instructed Mykayla about how to conduct
herself as a prostitute: ask potential dates if they worked for law
enforcement; keep her head down around other pimps; collect
payment in advance. And, when Mykayla returned from working
the Western blade, defendant asked her if she had earned any
money. The jury could reasonably infer from this conduct that

14
defendant was attempting to “cause” Mykayla to engage in
commercial sex. (§ 236.1, subd. (c).)
Finally, the jury could reasonably conclude that this
evidence demonstrated defendant’s intent to pander Mykayla—
namely, that he used “promises” or “any device or scheme” to
“persuade[ ] or encourage[ ]” her to become a prostitute, and that
he intended to influence her to do so. (§ 266i, subd. (a)(2);
CALCRIM No. 1151.)
Thus, taken together, the evidence is legally sufficient to
support defendant’s conviction for count 6.
1.4. There is no substantial evidence to support
defendant’s conviction for trafficking Angie
(count 5).
Count 5, however, is a different story. Unlike Mykayla,
Angie did not testify at trial. Nor did any law enforcement
witnesses testify about what, if anything, Angie said to them.
And, the evidence supporting defendant’s conviction for
trafficking Mykayla does not support his conviction for trafficking
Angie because those events occurred either after Angie had left—
as when defendant asked Mykayla if she had made any money on
the Western blade—or when Angie’s whereabouts are unknown—
as when defendant told Mykayla that if she worked as a
prostitute, she would meet famous rappers and earn enough
money to have anything she wanted. Indeed, the People point to
just a few snippets of testimony that even mention defendant and
Angie in proximity to each other—and they are mistaken about
what that testimony says.
First, the People argue that defendant gave “the girls”
instructions about interacting with the police and other pimps.
The People cite to the following exchange:

15
 Q. And who gave you the instruction about find out
what the trick wants and provide the service that
the trick wants?
A. A lot of people: Blocka, Profit, Wish, and Coco, I
guess.
Q. When Profit was giving you the instructions,
what instructions do you recall Profit giving you?
A. Basically, the same, like about the police and to
keep your head down by other pimps.
Q. Did you receive any instructions about the types
of dates that you were supposed to service or not
service?
A. No.
Q. When Profit was giving you instructions about
working the blade, who else was present other
than yourself?
A. Angie and Ty, I think.
Contrary to the People’s claim, Mykayla does not testify here that
defendant “gave the girls” certain instructions. At most, Mykayla
testified that Angie was present when defendant instructed
Mykayla to keep her head down if other pimps approached her.
Mykayla was not asked whether defendant’s advice was also
directed at Angie—and the People do not explain how Angie’s
mere presence in a room in which defendant gave instructions to
a different person amounts to substantial evidence that he
attempted to cause, induce, or persuade Angie to engage in a
commercial sex act. (§ 236.1, subd. (c).)
Next, the People insist that defendant “told Mykayla,
Angela, and [Ty] they were to collect the money before having

16
sex.” Again, the People are mistaken. As with the earlier
testimony, Mykayla said that defendant gave her—Mykayla—
those directions. When asked who else was present, Mykayla
replied, “Angie. Angie, I think, Angie and Ty. I can’t really
remember.” And again, Mykayla did not testify that defendant
directed those instructions to Angie as well.
Moreover, in each instance, Mykayla could not remember
the circumstances under which the statement was made or when
it was made—and to the extent Angie’s mere presence is
relevant, the timing here matters. Angie and Mykayla spent
almost all of their time with Blocka. Mykayla testified, “I barely
seen Profit.” Indeed, there are only two clear occasions when
Mykayla and Profit were even in the same room: the first night at
Blocka’s house, when Angie was drunk enough to throw up but
Mykayla was sober, and in the apartment after Mykayla walked
the Western blade, when Angie was gone. Defendant instructing
Mykayla under these circumstances does not support an
inference that defendant gave Angie instructions about sex work,
much less constitute substantial evidence that defendant
trafficked her.
The People are also mistaken that Wish gave instructions
to Mykayla and Angie at Blocka’s house in defendant’s presence.
Mykayla testified that Wish was one of the people who instructed
her about sex work. The prosecutor then asked where Mykayla
saw Wish. Mykayla replied that she saw Wish at Blocka’s house
with Profit. The prosecutor asked about the nature of the
instructions, then asked, “Where were you, Angie, and Ty when
you were receiving these instructions from Wish?” Mykayla
answered that she was on the blade. Thus, this testimony may
support an inference that defendant was present when Mykayla

17
met Wish. And, it establishes that Wish gave instructions to
Mykayla and Angie on the blade. But it does not establish that
defendant was present when she did so. Nor, given the non-linear
nature of the prosecutor’s questioning style, is it susceptible to
such an inference. To the contrary, Mykayla testified that she
never saw Profit on the Santa Ana blade—or any other blade.
Next, the People assert Ty testified “that after she was
raped, [she] saw Mykayla, Angela, and Kayla return to the house
and give both [defendant] and Blocka money.”14 The People are
referring to the following exchange:
Q. After the rape by Profit, did you ever see the
other three girls: Angela, Mykayla, and Kayla?
A. Yes.
Q. What did you see them do when they returned?
A. They gave Profit and Blocka money.
This testimony does not support an inference that Angie gave
money to defendant, however. First, the exchange is, at best,
ambiguous about who gave what to whom: The question and
answer are consistent with any subset of the three girls giving
money to either or both of the two men. Second, there is no
evidence anywhere in the record that Angie or Mykayla ever
made any money; to the contrary, Mykayla testified that neither
of them caught any dates and that they were otherwise penniless.
Kayla, however, did make money—and Kayla turning over her

14The People posit that this is evidence that Blocka and defendant
were part of a “ ‘pimping organization’ ” in which Blocka was the junior
partner. As discussed post, however, the jury was not instructed on
that theory, and we decline to consider it.

18
earnings to Blocka and/or Profit is consistent with both the
question and the answer. Third, Ty was raped in the apartment
Mykayla went to after working the Western blade. Mykayla
testified that Angie had gone back to the group home by this
point, which is consistent with Ty’s later testimony in which she
is adamant that Angie was not in the apartment with Mykayla
and Kayla. Given the ambiguity of the initial statement, the
context surrounding it, and Ty’s later testimony to the contrary,
the statement is not evidence that Angie gave money to
defendant.
Finally, unable to point to any clear evidence of defendant’s
interactions with Angie, the People’s main contention is that
Blocka’s and Wish’s actions constitute substantial evidence that
defendant is guilty of trafficking Angie. We disagree.
Although the prosecutor occasionally suggested below that
the jury could attribute Blocka’s and Wish’s actions to defendant,
the jury was not instructed on that topic. Specifically, neither
party asked the trial court to instruct the jury with CALCRIM
Nos. 400 and 401 on aiding and abetting, and the court did not
give those instructions sua sponte.15 (See People v. Leonard
(2014) 228 Cal.App.4th 465, 489–490 [defendant guilty of
pandering on an aiding and abetting theory].) Likewise, neither
party requested, and the court did not give, CALCRIM Nos. 416
and 417, concerning evidence of an uncharged conspiracy and
liability for coconspirators’ acts. Indeed, the prosecutor’s main

15Although the court has a sua sponte duty to instruct on aiding and
abetting when the prosecution relies on it as a theory of culpability,
neither party argues on appeal that the court erred by failing to give
an aiding and abetting instruction here. (See People v. Beeman (1984)
35 Cal.3d 547, 560–561.)

19
theory of the case—and the only theory on which the jury was
instructed—was that defendant was the direct perpetrator.
Furthermore, while the People contend that Blocka’s and
Wish’s behavior amounts to substantial evidence of defendant’s
guilt, they offer us no authority suggesting that we may find
substantial evidence here using a legal theory the jury was not
provided, based on evidence the jury was not told how to
evaluate. As such, we do not address whether the evidence would
have been sufficient to support defendant’s conviction under an
aiding and abetting or co-conspirator theory.16
Having reviewed the entire record, we conclude there is no
substantial evidence to support defendant’s conviction for
count 5.
1.5. The judgment is modified to strike the sentence
for count 5.
When a conviction is reversed on appeal for lack of
substantial evidence, the typical remedy is to remand for
resentencing so that the trial court may restructure its
sentencing choices to compensate for the lost count. (See People v.
Navarro (2007) 40 Cal.4th 668, 681, quoting People v. Burbine

16We are aware that under section 236.1, subdivision (d), “’[i]n
determining whether a minor was caused, induced, or persuaded to
engage in a commercial sex act, the totality of the circumstances,
including the age of the victim, his or her relationship to the trafficker
or agents of the trafficker, and any handicap or disability of the victim,
shall be considered.” (Italics added.) CALCRIM No. 1244 contains
language tracking this provision; here, however, the court omitted the
phrase “agents of the trafficker” from the instruction. And, in any
event, the People’s argument here involves evidence of Blocka’s and
Wish’s actions; the People do not point to any evidence concerning
Mykayla’s or Angie’s “relationship to” Blocka or Wish.

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(2003) 106 Cal.App.4th 1250, 1259 [“ ‘upon remand for
resentencing after the reversal of one or more subordinate counts
of a felony conviction, the trial court has jurisdiction to modify
every aspect of the defendant’s sentence on the counts that were
affirmed, including the term imposed as the principal term’ ”].)
Here, however, “the trial court imposed the maximum possible
sentence. As there are no sentencing choices to restructure, it is
appropriate for us to modify the sentence on appeal. (§ 1260
[appellate court’s power to modify judgments]; People v. Rogers
(2009) 46 Cal.4th 1136.)” (People v. Francis (2017) 16 Cal.App.5th
876, 887.)
Accordingly, in the interest of judicial economy, we modify
the judgment as follows: The subordinate term imposed for
count 5 is stricken, reducing the aggregate determinate sentence
to 13 years 8 months. There is no change to the indeterminate
sentence. The total court security fees (§ 1465.8) are reduced from
$160 to $120. The total criminal conviction assessments (Gov.
Code, § 70373) are reduced from $120 to $90.
2. The abstract of judgment is inaccurate and must be
corrected.
In a criminal case, the oral pronouncement of a sentence
constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466,
471.) “An abstract of judgment is not the judgment of conviction;
it does not control if different from the trial court’s oral judgment
and may not add to or modify the judgment it purports to digest
or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185;
Mesa, at p. 471 [to the extent a minute order diverges from the
sentencing proceedings it purports to memorialize, it is presumed
to be the product of clerical error].) Accordingly, courts may
correct clerical errors at any time, and appellate courts may order

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correction of an abstract of judgment that does not accurately
reflect the oral pronouncement of sentence. (Mitchell, at pp. 185–
188.)
Here, the court properly imposed one $40 court security fee
(§ 1465.8) and one $30 criminal conviction assessment (Gov.
Code, § 70373) for each of the four counts of conviction, for a total
of $160 in court security fees and $120 in criminal conviction
assessments. All of those fees are reflected on the abstract of
judgment for the indeterminate sentence—along with the
restitution fine and defendant’s pretrial custody credit. However,
fees for two of the determinate counts are also listed a second
time on the determinate abstract of judgment. When the two
abstracts are combined, therefore, the fees are too high.
Because the abstract of judgment for the determinate
sentence contains duplicative fees, it must be corrected to remove
them. (See People v. Mitchell, supra, 26 Cal.4th at pp. 185–188
[discussing the importance of correcting inaccurate abstracts of
judgment on appeal].) Because we have modified the judgment to
strike defendant’s sentence for count 5, the court must also
reduce the fees on the indeterminate abstract of judgment as
outlined in section 1.5, ante.

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 DISPOSITION

Count 5 is reversed for insufficient evidence and the
judgment is modified to strike the sentence for count 5, as
discussed in section 1.5 of the discussion. In all other respects, we
affirm as modified. Upon remand, the court is instructed to:
(1) enter a judgment of acquittal on count 5; (2) amend the
minute order of May 21, 2019, to reflect the judgment as
modified; (3) amend the abstract of judgment for the determinate
sentence to reflect the judgment as modified and delete the court
fees; (4) amend the abstract of judgment for the indeterminate
sentence to reduce the court security fees (§ 1465.8) to $120 and
to reduce the conviction assessments (Gov. Code, § 70373) to $90;
and (5) forward certified copies of the amended abstracts of
judgment to the Department of Corrections and Rehabilitation.
The clerk of this court is directed to send a certified copy of
this opinion and the remittitur to the Department of Corrections
and Rehabilitation. (Cal. Rules of Court, rule 8.272(d)(2).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.
WE CONCUR:

EDMON, P. J.

EGERTON, J.

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