Filed 10/22/20 P. v. Flores CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B304177
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA098533)
v.
ERIC LUIS FLORES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
A jury convicted defendant and appellant Eric Luis Flores
of pandering, in violation of Penal Code section 266i, subdivision
(a)(6).1 We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
In 2018, the Torrance Police Department Vice and
Narcotics Unit maintained an Instagram social media account in
the name of “Jacklyn Snow,” as part of undercover operations
targeting pimping and prostitution. The profile picture for the
Snow account was of a buxom blonde woman. The account also
displayed various photographs, a video, and several emojis,
including a money bag and two feet with a downward-pointing
arrow. According to Torrance Police Detective Andrew Lee, who
testified as an expert, the feet and arrow emojis stood for “ten
toes down,” which was a coded reference to prostitution,
indicating the prostitute was working by walking a “blade.” A
“blade” is slang for an area where prostitutes walk up and down
the street, seeking clients.
On May 21, 2018, Flores, using an Instagram account
named “Floezy_ytk,” sent a friend request and a message to the
Snow account. It stated, “Thanks for adding choose-up, little
babe, what state you in?” In street vernacular commonly
associated with prostitution and pimping, a “choose-up” is a fee
required to be paid by a prostitute when she selects a pimp.
On May 24, 2018, Flores sent a message to the Snow
account stating, “Send da fee, bitch.” Lee, posing as Snow,
replied, “Ha, what the fee like?” and “What I get for that?” Flores
1
All further undesignated statutory references are to the
Penal Code.
2
replied, “3K. Win.” “Snow” then asked, “You got me a wifey?”
and “You got that stable?” Flores replied affirmatively to both
questions. In street slang associated with prostitution, a “wifey”
is a co-prostitute who acts as a friend and companion to another
prostitute. A “stable” is a group of prostitutes managed by the
pimp. “Snow” then asked whether Flores was “gonna come scoop
me up?” and if she would “need to walk some dusty-ass blade off
Fig.” Figueroa Street in Los Angeles, according to Lee, was
known for prostitution activities. Flores replied, “Hell, no, we
high class in O.C., baby.” “Snow” replied, “What’s in O.C.?”
Flores answered, “Team Floezy, Main Street, Beach Boulevard,
money on every block.” According to Lee, Beach Boulevard in
Orange County is known for prostitution. Flores added, “I have
some tricks lined up.” “Tricks,” in street slang, refers to a
prostitute’s customers. Flores said, “I’ll blend in, trust Daddy.”
Prostitutes commonly call their pimps their “Daddies.”
During subsequent Instagram message conversations,
“Snow” pretended to be in various locations in the Los Angeles
area and Northern California, and discussed meeting with Flores.
During one such conversation, “Snow” asked Flores how much
she should charge when a customer wanted to bring a friend to
participate in a sexual liaison, and when another customer
wished to engage in “Greek,” a slang term for anal sex. Flores
suggested that “Snow” triple the price and charge “500 and up” in
regard to the first scenario, although he was not sure; in regard
to the second, he agreed “Snow” should “charge more.” Flores
stated that he could arrange for a photographer to take pictures
of “Snow.” In a message sent on June 9, 2018, “Snow” stated she
had “$2,000 of the choose-up.” Flores told her to send that money
to him through MoneyGram. When “Snow” expressed hesitation
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about sending money to someone she had never met, Flores said
to forget about sending the money and suggested they meet and
have a meal together. Flores and “Snow” did not further discuss
the terms of a potential pimp-prostitute arrangement between
them.
On June 11, 2018, Detective Erin Velarde, posing as Snow,
spoke with Flores in a recorded telephone call, portions of which
were played for the jury. Velarde said she was still in Northern
California and could not make it to the Los Angeles area as
planned. Flores told Velarde to go a Walmart store and send him
a MoneyGram. When she protested she did not know how to
make such a transaction, Flores called her a bitch, told her to
“shut the fuck up,” and explained the process. He stated that she
needed to give him the MoneyGram confirmation number after
making the transaction. When she asked questions, he said,
“You talkin too mother fuckin much for me, bitch. I said do what
the fuck I said. Do it. I didn’t ask you all that extra shit, did I?”
He admonished her to be sure to send the money, saying: “Bitch,
don’t play with me. Go do that shit like right the fuck now. You
hear me?” and “you better be doing that shit ASAP.” Flores told
her to send the money to “Eric Flores.” He also stated, “I’m tryin
to get you situated,” and “I got . . . all type of shit lined up for you
when you get down here, so.” The officers did not send the
MoneyGram.
On July 3, 2018, “Snow” messaged Flores, telling him she
was in Torrance. Detective Lee, posing as Snow, arranged that
Flores would come pick Snow up at a Howard Johnson’s hotel in
Torrance. Flores indicated, in another Instagram message, that
he was on his way. Officers were waiting at the hotel, and
arrested him when he arrived. Detective Lee recognized Flores
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by the photo on the “Floezy” Instagram account, and by his voice.
The hat Flores wore was the same one depicted in his Instagram
account.
2. Procedure
On November 27, 2018, Flores was charged by information
with pandering in violation of section 266i, subdivision (a)(6), by
attempting to procure “Jane Doe” for the purpose of prostitution.
The information also alleged that Flores had suffered a prior
“strike” conviction for robbery. (§§ 211, 667, subd. (d), 1170.12,
subd. (b).)
Jury trial commenced in November 2019. In pretrial
motions, the trial court granted the defense request to bifurcate
the prior conviction allegations and denied the defense motion to
preclude impeachment of Flores with the prior robbery
conviction, should he choose to testify. Prior to trial, on
September 12 and October 22, 2019, the trial court denied
Flores’s two Marsden motions.2
The jury convicted Flores of pandering by agreeing to
receive money or something of value, for attempting to persuade
or procure “Jane Doe” for the purpose of prostitution, in violation
of section 266i, subdivision (a)(6). Thereafter, in a bifurcated
trial, the jury found Flores had suffered a prior conviction for
robbery.
The trial court granted Flores’s Romero motion3 and
sentenced him to the low term of three years in prison. It
imposed a $300 restitution fine, a suspended parole revocation
restitution fine in the same amount, a $30 court facilities
2
People v. Marsden (1970) 2 Cal.3d 118.
3
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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assessment, and a $40 court operations assessment. Defense
counsel objected on the ground that Flores “ha[d] no ability to
pay.” The trial court offered to conduct an ability-to-pay hearing,
but counsel declined.
Flores timely appealed.
DISCUSSION
After review of the record, Flores’s court-appointed counsel
filed an opening brief that raised no issues and requested that
this court conduct an independent review of the record pursuant
to People v. Wende (1979) 25 Cal.3d 436. Appellant was advised
that he had 30 days to submit by brief or letter any contentions
or argument he wished this court to consider.
On August 4, 2020, Flores submitted a supplemental brief.
Therein, he makes a variety of assertions, none of which
demonstrates any legal or reversible error. He mentions, without
further explanation, Strauder v. West Virginia (1879) 100 U.S.
303, Batson v. Kentucky (1986) 476 U.S. 79, Brady v. Maryland
(1963) 373 U.S. 83, and “veteran statutes.” By citing Strauder
and Batson, Flores presumably intends to raise a claim relating
to racial or ethnic discrimination in jury selection. But Flores
does not aver that any Batson motion was made and denied at
trial, nor does he otherwise explain the basis for his claim or offer
argument or authority to support it. Consequently, this
contention fails. (See People v. Anderson (2007) 152 Cal.App.4th
919, 929 [failure to provide argument or cite authority for it
forfeits the issue on appeal].)
Brady v. Maryland requires that the prosecution disclose to
the defense all exculpatory, material evidence known to the
prosecution team. (People v. Beck and Cruz (2019) 8 Cal.5th 548,
668.) Flores fails to explain the basis for his Brady claim, and
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the record reflects no Brady violation. As to the vague reference
to “veteran statutes,” this contention is so nonspecific as to defy
review. (See People v. Kraft (2000) 23 Cal.4th 978, 1049–1050.)
The same is true as to Flores’s contentions that his First
Amendment rights were violated, and that his trial was “unfair”
and “unconstitutional.”
Flores next lists “absense of probable cause—absense of
intent is unlawful” [sic] as an issue he wishes to raise. To the
extent he intends to assert that the evidence presented at the
preliminary hearing failed to demonstrate probable cause, the
record does not reflect that he brought any challenge to the
preliminary hearing prior to trial. Therefore, any such
contention is waived. (People v. Alcala (1984) 36 Cal.3d 604, 628;
People v. Shaw (1986) 182 Cal.App.3d 682, 684.) In any event,
our review of the preliminary hearing reveals no evidentiary
deficiency. It is unclear what Flores means by his reference to
“absen[c]e of intent,” but the court and parties agreed the
charged offense was a specific intent crime, and the jury was so
instructed.
Flores asserts that he is innocent, and requests that this
court “file a motion to drop all charges” against him or order
“a reexamination of evidence by honest investigation.” He also
asserts that the evidence was unreliable and unpersuasive. We
interpret these assertions as a challenge to the sufficiency of the
evidence.
When determining whether the evidence was sufficient to
sustain a criminal conviction, “ ‘ “we review the entire record
in the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
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trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.]’ ” (People v. McCurdy (2014) 59 Cal.4th 1063,
1104.) The same standard of review applies when the
prosecution relies on circumstantial evidence. (People v. Salazar
(2016) 63 Cal.4th 214, 242.) “ ‘ “Although it is the duty of
the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which
suggests guilt and the other innocence [citations], it is the jury,
not the appellate court which must be convinced of the
defendant’s guilt beyond a reasonable doubt.” ’ ” (People v.
Abilez (2007) 41 Cal.4th 472, 504.) Unless physically impossible
or inherently improbable, the testimony of a single witness is
sufficient to support a verdict. (People v. Jones (2013) 57 Cal.4th
899, 963.)
Flores’s conviction is supported by substantial evidence.
The evidence showed Flores agreed to receive money from a
person he believed to be Jacklyn Snow, a prostitute, as a fee for
him to become her pimp, with the understanding he would
facilitate her work as a prostitute by finding her customers and
showing her a lucrative area in which to ply her trade. He
promised that he had “tricks” lined up for her, and that the area
she would work for him was “high class,” with “money on every
block.” A person may violate section 266i, subdivision (a), even if
the targeted person is already an active prostitute or is an
undercover police officer. (People v. Zambia (2011) 51 Cal.4th
965, 970, 981.) Thus, the evidence was sufficient to prove Flores
agreed to receive money in exchange for attempting to procure
“Jane Doe” for the purpose of prostitution. (§ 266i, subd. (a)(6);
People v. Campbell (2020) 51 Cal.App.5th 463, 484 [“Pandering is
‘the business of recruiting a prostitute, finding a place of business
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for a prostitute, or soliciting customers for a prostitute,’ ” and
comprises a broad range of conduct]; see People v. Almodovar
(1987) 190 Cal.App.3d 732, 740–741.)
Finally, Flores complains that his trial counsel provided
ineffective assistance by hiding and withholding “key mitigating
evidence that could prove [his] innocence,” “incriminate[ing]” him
during closing argument, and failing to inform the jury that he
was a Navy veteran. To establish ineffective assistance of
counsel, a defendant must show counsel’s representation fell
below an objective standard of reasonableness under prevailing
professional norms, and there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have
been different. (People v. Bell (2019) 7 Cal.5th 70, 125.)
Flores fails to meet this burden here. Counsel did not
provide ineffective assistance by failing to inform the jury that
Flores was a Navy veteran, as such evidence was irrelevant to
any issue at trial. (See Evid. Code, §§ 210, 350.) We have
reviewed counsel’s closing argument, and counsel did not say
anything that can be construed as improperly “incriminating”
Flores. Counsel’s argument that the evidence supported an
alternate conclusion—that Flores was not really attempting to
recruit “Snow” as a prostitute, but instead sought a sexual liaison
with her or hoped to induce her to send him money—was a
reasonable tactical choice, given the evidence counsel had to work
with. We accord great deference to counsel’s tactical decisions
and presume that counsel’s actions fell within the broad range of
reasonableness and can be explained as a matter of sound trial
strategy. (People v. Mickel (2016) 2 Cal.5th 181, 198; People v.
Bell, supra, 7 Cal.5th at p. 125; People v. Gamache (2010) 48
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Cal.4th 347, 392–393 [sensible concessions during argument are
an acceptable and often necessary tactic].)
Flores’s contentions that counsel hid or withheld evidence
turn on matters outside the record, and therefore must be raised
in a petition for writ of habeas corpus. (People v. Duong (2020)
10 Cal.5th 36, 56 [“Any claim of ineffective assistance based on
evidence not in the trial record must be made in a habeas corpus
petition”]; People v. Salcido (2008) 44 Cal.4th 93, 172.)
We have examined the record, and are satisfied no arguable
issues exist and Flores’s attorney has fully complied with the
responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106,
125–126; People v. Wende, supra, 25 Cal.3d at pp. 441–442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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