Filed 2/16/23 P. v. Towner CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C095094
v. (Super. Ct. No. 20FE004466)
DAVID TOWNER,
Defendant and Appellant.
A jury convicted defendant David Towner of human trafficking, pimping,
pandering, attempted human trafficking of a minor, and witness dissuasion. The trial
court sentenced him to an aggregate term of 28 years in prison.
Defendant now contends (1) the trial court should have dismissed counts one
through three (charging human trafficking, pimping, pandering) because they alleged the
same conduct charged in another case resolved by plea; (2) the trial court should have
instructed the jury that to convict on count seven (attempted human trafficking of a
minor) the People had to prove that defendant intended to induce a minor to engage in the
prohibited act; (3) insufficient evidence supported the convictions on counts eight and
nine (for dissuasion of witnesses); (4) defendant’s trial counsel was ineffective in failing
to object to a detective’s opinions about defendant’s text messages; and (5) the matter
must be remanded for resentencing under Assembly Bill No. 518 (2021-2022 Reg. Sess.)
and Senate Bill No. 567 (2021-2022 Reg. Sess.).
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We conclude (1) defendant has not established that the prosecution of counts one
through three was precluded in this case; (2) on the count seven charge of attempted
human trafficking of a minor, the trial court should have instructed on the applicable
elements, and the error was not harmless; (3) substantial evidence supports the
convictions for witness dissuasion; (4) defendant has not shown ineffective assistance;
and (5) we will remand the case for resentencing based on current law. We will reverse
defendant’s count seven conviction for attempted human trafficking of a minor; and we
will vacate the sentences on counts one (human trafficking), two (pimping), and three
(pandering) and remand for resentencing on those counts consistent with current law.
We will otherwise affirm the judgment.
BACKGROUND
Sacramento Police Detective Elizabeth Strauss contacted 16-year-old I.D. after
investigating an ad for prostitution. A search of I.D.’s cell phone showed a text message
from defendant that read, “Let’s get an Incall and Take New Pics . . . i can help assist u &
have alot of good call online.” Defendant’s cell phones were seized.
Detective Strauss contacted T.D., who was 35 years old, based on defendant’s cell
phone data, and T.D. testified at trial. Defendant sent clients to T.D. and T.D. gave
defendant half of what she earned from those dates. Detective Strauss testified about text
messages from defendant to T.D. during the period December 3, 2019 to January 1, 2020,
including messages about finding dates, negotiating prices for dates, and taking
photographs for ads.
In addition, Detective Strauss interviewed R.D., who was 25 years old and who
also testified at trial. R.D. met defendant in person after chatting with him on a dating
app. Defendant told R.D. she was going to work for him. He said there would be trouble
if R.D. did not comply. Defendant accessed a website R.D. had used to post ads for
prostitution and reposted an ad, using his cell phone number for client calls and text
messages. An ad was posted for R.D. on April 18, 2019, using a photograph defendant
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took. Defendant arranged dates for R.D. and took the money R.D. earned. In addition,
defendant had sex with R.D. without her consent. At some point, defendant took R.D. to
Santa Cruz, where she was able to get away from him.
Detective Strauss testified about text messages sent from defendant’s cell phone to
different sex workers. A number of text messages appeared to be for the purpose of
recruiting sex workers. In another series of text messages, defendant made threats in
connection with money a sex worker allegedly owed him.
While in jail, defendant made two calls to dissuade T.D. and I.D. from cooperating
with the authorities. We provide more detail regarding those calls in the Discussion as
relevant to contentions on appeal.
The jury convicted defendant of human trafficking involving R.D. (Pen. Code,
§ 236.1, subd. (b) -- count one),1 pimping involving R.D. (§ 266h, subd. (a) – count two),
pandering involving R.D. (§ 266i, subd. (a)(1) – count three), pimping involving T.D.
(§ 266h, subd. (a) – count five), pandering involving T.D. (§ 266i, subd. (a)(1) – count
six), attempted human trafficking involving minor I.D. (§ 236.1, subd. (c)(1) -- count
seven), witness dissuasion of T.D. (§ 136.1, subd. (b)(2) -- count eight), and witness
dissuasion of I.D. (§ 136.1, subd. (b)(2) -- count nine). The jury could not reach a verdict
on the count four charge of forcible rape of R.D. (§ 261, subd. (a)(2)) and that count was
dismissed. The trial court sentenced defendant to an aggregate 28 years in prison.
DISCUSSION
I
Defendant contends the trial court should have dismissed counts one through three
(charging human trafficking, pimping, and pandering) because they alleged the same
conduct charged in another case resolved by plea. Specifically, he claims he was
1 Undesignated statutory references are to the Penal Code.
3
prosecuted in the instant case (the Sacramento case) for the same conduct that was the
basis for Santa Cruz County Superior Court case No. 19CR02785 (the Santa Cruz case).
A
Defendant presented the following facts in a motion to dismiss. Santa Cruz police
officers arrested defendant following a domestic violence report. R.D. told officers
defendant had forced her to work as a prostitute and raped her in Sacramento and Santa
Cruz. The Santa Cruz County District Attorney charged defendant with pimping (§ 266h,
subd. (a)), pandering (§ 266i, subd. (a)(1)), human trafficking (§ 236.1, subd. (a)),
forcible rape (§ 261, subd. (a)(2)), and injuring a cohabitant (§ 273.5, subd. (a)). The
pimping allegedly occurred on or about April 23, 2019. The conduct underlying the other
counts allegedly occurred between January 1 and May 1, 2019. After defendant pleaded
no contest to injuring a cohabitant, the other counts were dismissed and the trial court
placed defendant on probation. The People subsequently charged defendant in the
Sacramento case. Counts one through three of the information in the Sacramento case
alleged that defendant committed human trafficking, pimping and pandering in relation to
R.D. between April 18 and 21, 2019.
Defendant’s motion to dismiss argued the following: the crimes charged in the
Sacramento and Santa Cruz cases arose from a single course of conduct in both counties
against one victim; Santa Cruz prosecutors knew about the alleged acts in Sacramento
and charged defendant for those acts; defendant was convicted and sentenced in the Santa
Cruz case; Sacramento County detectives learned about the Santa Cruz case when they
interviewed R.D.; and defendant was charged with the same crimes in the Sacramento
and Santa Cruz cases. Based on the above, defendant argued that counts one through
three in the Sacramento case should be dismissed pursuant to Kellett v. Superior Court
(1966) 63 Cal.2d 822 (Kellett) and section 654.
The People opposed the motion. They argued that the Sacramento case was not
barred because the two prosecuting agencies had no knowledge of the other’s actions;
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therefore, Sacramento County had no meaningful opportunity to prosecute defendant
before he entered a plea in the Santa Cruz case; evidence that would be used in the
Sacramento case was not part of the Santa Cruz case or available at the time of the earlier
prosecution; and defendant was not convicted of pimping, pandering or human trafficking
R.D. in the Santa Cruz case.
The trial court denied defendant’s motion to dismiss. It said Kellett did not apply
because the Santa Cruz prosecutor filed charges without consulting Sacramento County;
Sacramento County independently investigated and brought charges against defendant;
and defendant never pleaded to pimping, pandering or human trafficking as to R.D.
B
Section 654, subdivision (a) contains a multiple punishment and a multiple
prosecution bar. The statute provides, “An act or omission that is punishable in different
ways by different provisions of law may be punished under either of such provisions, but
in no case shall the act or omission be punished under more than one provision. An
acquittal or conviction and sentence under any one bars a prosecution for the same act or
omission under any other.”2 (§ 654, subd. (a).) Here, we consider the rule against
multiple prosecutions, which applies when conduct punishable in different ways by
different laws is prosecuted under a particular law but there was an acquittal or
conviction and sentence for the same conduct under another law. (Ibid.) We review de
novo whether section 654 applies. (People v. Valli (2010) 187 Cal.App.4th 786, 794.)
Kellett is the leading case on section 654’s bar against multiple prosecutions. In
that case, after the defendant stood on a public sidewalk with a pistol in his hand, the
People charged the defendant in municipal court with misdemeanor exhibiting a firearm
2 As we discuss in part V, section 654 was amended after the sentencing hearing.
(Stats. 2021, ch. 441, § 1; Stats. 1997, ch. 410, § 1.) The amendment does not affect
this portion of our discussion.
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in a threatening manner. (Kellett, supra, 63 Cal.2d at p. 824.) Following a preliminary
hearing, the People charged defendant, in a separate case in superior court, with felony
possession of a concealable weapon by a felon. (Ibid.) The defendant pleaded guilty to,
and was sentenced on, the misdemeanor. (Ibid.) He then moved to dismiss the superior
court case pursuant to section 654 on the ground that the municipal and superior court
cases arose from a single act. (Ibid.) The trial court denied the motion (ibid.), but the
Supreme Court issued a writ of prohibition barring trial in the superior court because the
same conduct played a significant part in more than one offense and the initial proceeding
culminated in a conviction and sentence. (Kellett, at pp. 824, 827, 829.)
Unlike in Kellett, here the record does not establish that the conduct for which
defendant was convicted in the Santa Cruz case (willful infliction of corporal injury upon
a cohabitant in violation of section 273.5, subdivision (a)) was the same as the conduct
giving rise to the offenses charged in the Sacramento case in count one (deprivation of
personal liberty in violation of section 236.1, subdivision (b)) or count two (deriving
support from prostitution in violation of section 266h, subdivision (a)) or count three
(procurement for prostitution in violation of section 266i, subdivision (a)(1)). Defendant
was not convicted of grabbing or striking R.D. in more than one case. Kellett is not on
point, and for the same reasons, neither are People v. Britt (2004) 32 Cal.4th 944 and
Barriga v. Superior Court (2012) 206 Cal.App.4th 739, two other cases cited by
defendant.
Defendant nevertheless cites In re Grossi (1967) 248 Cal.App.2d 315 for the
proposition that Kellett applies when the prosecutor refiles a charge in a second case after
dismissing it in a prior case. But In re Grossi did not analyze the language of section 654
or acknowledge that Kellett involved successive prosecutions for different offenses based
on the same conduct. We have found no subsequent case adopting the cited holding in In
re Grossi and we decline to do so here.
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II
Citing People v. Moses (2020) 10 Cal.5th 893 (Moses), defendant next argues the
trial court should have instructed the jury that to convict on count seven (attempted
human trafficking of a minor) the People had to prove that defendant intended to induce a
minor to engage in the prohibited act.
The People counter that defendant forfeited his appellate claim by not objecting
to the CALCRIM No. 1244 instruction given. However, an objection is not required to
preserve a challenge to an instruction that omitted an essential element of the charged
offense. (People v. Hillhouse (2002) 27 Cal.4th 469, 503; People v. Moses (2021)
65 Cal.App.5th 14, 22.)
As relevant here, section 236.1, subdivision (c) prohibits attempts to cause, induce
or persuade a minor to engage in a commercial sex act with the intent to effect or
maintain a violation of section 266h (pimping) or 266i (pandering). In Moses, the
California Supreme Court held that section 236.1, subdivision (c) incorporates the
elements of attempt, i.e., a specific intent to commit the crime and a direct but ineffectual
act done toward its commission. (Moses, supra, 10 Cal.5th at pp. 899, 907, 909.) Moses
involved a detective who posed as a minor. (Id. at p. 896.) The Court said section 236.1,
subdivision (c) specifically targets the trafficking of minors, and “to violate
subdivision (c) as an attempt, the defendant must intend to induce a minor . . . . [A]s long
as the defendant has attempted to induce a person and intends that the object of his
inducement be a minor, the elements of the attempt provision are satisfied. This
understanding honors the general law of attempt that punishes a criminal intent coupled
with an ineffectual act done towards its commission.” (Moses, at p. 909, italics omitted;
see id. at pp. 908-909 & fn. 10, 912-913.) Because attempt requires a specific intent to
commit the crime (id. at p. 899), intent to induce a minor to engage in a commercial sex
act is an element of attempted human trafficking of a minor. Although CALCRIM
No. 1244 does not include intent to induce a minor to commit a commercial sex act as
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an element of a section 236.1, subdivision (c) violation (CALCRIM No. 1244 (April
2022 Update)), CALJIC No. 9.62.3 does (CALJIC No. 9.62.3 (October 2022 Update)).
The trial court instructed the jury on the elements of attempt to traffic a minor
using CALCRIM No. 1244. The instruction did not require the jury to find that
defendant intended to induce a minor to engage in a commercial sex act. Rather, it told
the jury the People must prove that defendant attempted to induce another person to
engage in a commercial sex act.
Instructional error regarding an element requires reversal of the judgment unless
we can conclude beyond a reasonable doubt that the error did not contribute to the
verdict. (People v. Chun (2009) 45 Cal.4th 1172, 1201.) Comments by defendant’s trial
counsel and the trial court indicate they believed count seven did not require a showing of
intent to traffic a minor. Neither the prosecutor nor defendant’s trial counsel argued that
in order to convict defendant on count seven, the People were required to prove that
defendant acted with the specific intent to traffic a minor. Instead, the prosecutor
admonished the jury to focus on the language of the jury instructions and not to add to
that language. The evidence the Attorney General recites in its appellate brief does not
show that defendant intended to target a minor when he sent a text to I.D. The
instructional error as to count seven was not harmless. Accordingly, we will reverse
defendant’s conviction on count seven.
Because we conclude reversal is required we do not consider defendant’s
additional instructional error and sufficiency of the evidence claims pertaining to count
seven.
III
Defendant also challenges the sufficiency of the evidence supporting his count
eight and nine convictions for dissuasion of witnesses.
In determining whether sufficient evidence supports a conviction, “ ‘we do not
determine the facts ourselves. Rather, we “examine the whole record in the light most
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favorable to the judgment to determine whether it discloses substantial evidence --
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.” [Citations.] We
presume in support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.] [¶] . . . “[I]f the circumstances reasonably justify
the jury’s findings, the judgment may not be reversed simply because the circumstances
might also reasonably be reconciled with a contrary finding.” [Citation.]’ ” (People v.
Nelson (2011) 51 Cal.4th 198, 210 (Nelson).) We review de novo the interpretation of a
statute. (People v. Mgebrov (2008) 166 Cal.App.4th 579, 585.)
Counts eight and nine charged defendant with violating section 136.1,
subdivision (b)(2). The People had to prove that defendant had the specific intent to
dissuade a witness or victim from causing a complaint or information to be prosecuted,
and from assisting in the prosecution. (People v. Velazquez (2011) 201 Cal.App.4th 219,
223-224, 229-230, 232-233; see People v. Brown (2016) 6 Cal.App.5th 1074, 1082.)
Defendant argues the evidence was insufficient because the relevant statements
were made after defendant was aware that the initial complaint had been filed, and there
was no evidence he attempted to dissuade the filing of an amended complaint. But the
jailhouse call upon which counts eight and nine are based occurred before the filing of
the information. At the time of the call, law enforcement officers had contacted I.D. and
interviewed T.D. Defendant indicated he knew about those police contacts. He asked a
friend to tell T.D. not to talk anymore. And defendant asked the friend to tell I.D. that if
anybody came to talk to her, just to say she didn’t know. The friend understood
defendant’s request to mean “shut it down.” Defendant agreed. T.D. testified that after
defendant’s arrest, someone told her, “Just remember we don’t say anything.”
The count eight and nine convictions are supported by substantial evidence.
Based on the evidence, the jury could reasonably find that defendant intended to dissuade
9
T.D. and I.D. from causing an information to be prosecuted and from assisting in the
prosecution.
IV
Defendant further contends his trial counsel was ineffective in failing to object
to Detective Strauss’s opinions about defendant’s text messages.
To establish ineffective assistance of counsel, a defendant must prove (1) that his
trial counsel’s representation was deficient because it fell below an objective standard of
reasonableness under prevailing professional norms, and (2) the deficiency resulted in
prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury);
Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674] (Strickland).) If a
defendant makes an insufficient showing on either of those components, his ineffective
assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland, at p. 687.)
We review trial counsel’s performance with deferential scrutiny, indulging a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance and recognizing the many choices that attorneys make in handling
cases and the danger of second-guessing an attorney’s decisions. (Maury, supra, 30
Cal.4th at p. 389; Strickland, supra, 466 U.S. at p. 689.) On direct appeal, we will find a
deficiency only if (1) the record affirmatively discloses counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked for a reason and failed
to provide one, or (3) there simply could be no satisfactory explanation. (People v. Mai
(2013) 57 Cal.4th 986, 1009.) And to establish prejudice, defendant must show a
reasonable probability of a more favorable result. (People v. Ledesma (1987) 43 Cal.3d
171, 217-218; Strickland, pp. 693-694.)
A
Defendant contends his trial counsel should have objected, on the ground of an
improper legal conclusion, to Detective Strauss’s testimony that certain texts from
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defendant constituted pandering or attempted pandering. In a text to I.D., for example,
Detective Strauss opined that defendant sent I.D. a “pandering text.”
Expert opinion on a question of law is inadmissible. (People v. Brown (2016)
245 Cal.App.4th 140, 167; Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155,
1178, 1185.) And an expert may not express an opinion on the defendant’s guilt.
(People v. Clark (2019) 43 Cal.App.5th 270, 292-293 (Clark).) Nevertheless,
“ ‘[w]hether to object to inadmissible evidence is a tactical decision; because trial
counsel’s tactical decisions are accorded substantial deference [citations], failure to
object seldom establishes counsel’s incompetence.’ [Citation.] ‘In order to prevail on
[an ineffective assistance of counsel] claim on direct appeal, the record must
affirmatively disclose the lack of a rational tactical purpose for the challenged act or
omission.’ ” (People v. Williams (1997) 16 Cal.4th 153, 215.)
Defendant’s trial counsel said he did not object to Detective Strauss’s testimony
about whether a pimping-and-pandering relationship existed because he intended to
challenge the detective’s use of certain terms and attack the detective’s credibility on
cross-examination. In fact, on cross-examination, defendant’s trial counsel elicited
testimony from Detective Strauss about whether a particular scenario constituted
pandering. We accord “ ‘great deference to [defense trial] counsel’s tactical choices’.”
(People v. Mickel (2016) 2 Cal.5th 181, 198.) Defendant does not contend that the reason
trial counsel had proffered for not objecting to Detective Strauss’s testimony about
pimping and pandering was not a rational defense tactic.
In any event, defendant has not established prejudice, as the evidence of pandering
was otherwise overwhelming. Considering the evidence presented at the trial and the
jury instructions given, it was not reasonably probable that defendant would have
obtained a more favorable result had trial counsel objected to Detective Strauss’s
opinions about pandering or attempted pandering. (See Clark, supra, 43 Cal.App.5th
at pp. 294-296.)
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B
Defendant next asserts that his trial counsel should have objected to Detective
Strauss’s testimony about what defendant meant in his text messages.
Under Evidence Code section 801, expert opinion testimony is admissible only if
the subject matter of the testimony is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact. (People v. Vang (2011) 52 Cal.4th
1038, 1044.) The subject matter of the culture of pimping, pandering and prostitution
falls within this category. (People v. Leonard (2014) 228 Cal.App.4th 465, 492-493
(Leonard); United States v. Taylor (9th Cir. 2001) 239 F.3d 994, 998.) Thus, an expert
may testify as to the meaning of words or phrases within the culture of pimping and
prostitution. (Leonard, at p. 493, fn. 9.)
Even if defendant’s trial counsel was deficient in failing to object to Detective
Strauss’s testimony about defendant’s text messages, defendant has failed to establish
prejudice because the evidence supporting his convictions was otherwise overwhelming.
C
Defendant further argues that his trial counsel should have objected when
Detective Strauss speculated that certain text messages from defendant were for the
purpose of blackmail or control or pertained to sex work. Again, however, even if
defendant’s trial counsel should have objected to the testimony, defendant fails to
establish the requisite prejudice, because the evidence was otherwise overwhelming.
V
In addition, defendant argues the matter must be remanded for resentencing under
Assembly Bill No. 518 and Senate Bill No. 567.
A
At the time of defendant’s sentencing, section 654 provided that an act or omission
punishable in different ways by different provisions of law shall be punished under the
law that provided for the longest potential term of imprisonment. (Stats. 1997, ch. 410,
12
§ 1.) Effective January 1, 2022, Assembly Bill No. 518 amended section 654 to afford
sentencing courts discretion to choose the count for which it will stay punishment,
allowing the trial court to stay the longer rather than the shorter term of imprisonment
after imposing punishment. (Stats. 2021, ch. 441, § 1.)
The trial court imposed a sentence of 20 years on count one, four years on count
two, and four years on count three, and stayed the sentences on counts two and three
under section 654. In sentencing on count six, to which it also applied section 654, the
trial court noted it had to impose the longest term. Amended section 654 does not require
resentencing on counts five and six because the trial court imposed the same sentence on
those counts. However, had the current version of section 654 been in effect at the time
of defendant’s sentencing, the trial court would have had the discretion to stay the upper
term sentence on count one.
The parties agree defendant is entitled to the ameliorative benefit of newly
amended section 654 because defendant’s appeal was not yet final when the amended
statute took effect. We agree that amended section 654 applies to defendant’s appeal.
(In re Estrada (1965) 63 Cal.2d 740, 744-745; see also People v. Superior Court (Lara)
(2018) 4 Cal.5th 299, 307-309; People v. Jones (2019) 32 Cal.App.5th 267, 272.)
Assembly Bill No. 518 did not indicate that the Legislature intended the amendment to
section 654 to apply prospectively only. (Stats. 2021, ch. 441, § 1.)
“Generally, when the record shows that the trial court proceeded with sentencing
on the erroneous assumption it lacked discretion, remand is necessary so that the trial
court may have the opportunity to exercise its sentencing discretion at a new sentencing
hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) The Attorney General
agrees that the case should be remanded for the trial court to exercise its discretion under
amended section 654. We will vacate the sentences on counts one through three and
remand the matter.
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B
Defendant also contends his case must be remanded for resentencing under Senate
Bill No. 567 because the facts upon which the trial court relied in imposing an upper term
sentence were not established in a manner consistent with the amended law. Because we
have already decided that the matter must be remanded for resentencing, we need not
address this contention. When the trial court resentences, it must comply with current
law.
DISPOSITION
Defendant’s count seven conviction for attempted human trafficking of a minor is
reversed. The sentences on the count one human trafficking conviction, the count two
pimping conviction, and the count three pandering conviction are vacated, and the matter
is remanded for resentencing consistent with current law. The judgment is otherwise
affirmed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
HULL, J.
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