Filed 12/27/21 P. v. Clark CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305709
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA072529
v.
PERRY TERRELL CLARK et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of
Los Angeles County, Kathleen Blanchard, Judge. Affirmed.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant Perry Terrell Clark.
Rudolph J. Alejo, under appointment by the Court
of Appeal, for Defendant and Appellant Javionna Starlena
Richmond.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael R. Johnsen and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
1
A jury convicted Perry Terrell Clark and Javionna Starlena
Richmond of human trafficking for commercial sex acts. Three
of the victims were minors. As to two of the victims, the jury
found true a sentencing factor that the crimes involved force,
fear, fraud, deceit, coercion, violence, duress, menace, or threat
of unlawful injury. The jury also convicted Clark of robbing
one of the victims. On appeal, Clark and Richmond assert
instructional error and insufficient evidence. We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The four victims
a. Wendy S.
In 2014, when she was 14, Wendy ran away from her
group home and started working as a commercial sex worker.
In the spring of 2015, Wendy met Clark, whom she knew as
“P.C.” Clark told Wendy “he had a girl working for him” and
Wendy could make up to $1,500 a day.
Richmond, whom Wendy knew as “J.J.,” contacted her
on Facebook or by text. Richmond was Clark’s “baby mother.”
Richmond asked, “[O]h, can I pull up on you and we’ll smoke?”
Wendy agreed. The next day, Wendy and her friend called Clark
to pick them up. Clark picked her up, they “got drunk and . . .
smoked,” and then Clark took her to Los Angeles “to go on the
blade.”1
Wendy worked about 10 hours that night. Clark “felt like
he needed more money.” He told Wendy, “[Y]ou’re not leaving.
You have to stay and have to make more money.” This pattern
continued. Sometimes Wendy took “pills just trying to stay up.”
Wendy gave the money she made to Clark “immediately”; she
kept none of it.
1 The “blade” or the “track” is “the streets where prostitutes
walk on,” such as Figueroa in Los Angeles.
2
Clark began to rent rooms at the E-Z8 motels in Lancaster
and Palmdale. Then Richmond “post[ed]” Wendy on Backpage,
a website where you could “post a picture of yourself” “if you want
to sell your body.”2 Clark made Wendy “do in-calls.” He also
took her to “out-calls,” where you “go[ ] to their place.” Wendy
was getting 20 “dates” a day. Clark and Richmond were setting
her schedule and arranging her dates, and Clark set the prices.
Richmond “was involved the whole time.” She created
Wendy’s ads for Backpage and took calls from the tricks.3 The
Backpage ads had Richmond’s phone number. Richmond was
“on the phone getting us dates.” She also collected the money.
Wendy never told Richmond no because—for example—if she
didn’t give Richmond the money, Clark “was gonna do whatever
it takes to take it from me.”
One time, Wendy told Clark she didn’t want to have
any more dates. He laughed and told her to get out of the car.
When she didn’t, he “lock[ed] the doors,” pulled her hair, and
“hit[ ] [her] against the window in the car.” “And he told me that
I was gonna work for him.” This type of thing was common;
it happened “[w]henever he would be mad.”
If Wendy kept any of the money she got from dates, Clark
beat her. Once Wendy got an extra $40 as a tip. She hid it in her
dirty clothes. When Clark found it he “lift[ed her] up” from the
bed and “threw” her. “[T]hen he started kicking [her] and
stomping [her] when [she] was on the floor.” Clark called Wendy
2 Backpage.com is now defunct. (People v. Oliver (2020)
54 Cal.App.5th 1084, 1092 (Oliver).)
3 A “trick” or a “John” is “the guy [who] comes and pays
for the services.”
3
“a stupid bitch.” Richmond was there when Clark assaulted
Wendy. She didn’t say anything, do anything, or try to stop him.
Another time Wendy had $20 in her makeup pouch.
Clark found it, took it, and beat her up.
Wendy worked out of motel rooms about 80% of the time.
She was not allowed to leave the room without permission. If she
tried to leave, she “got beat.”
Wendy worked for Clark and Richmond for 18 to 24
months. Eventually, Wendy felt Clark was “really, really
making” her “catch a lot of dates,” so she called her uncle and
cousin to pick her up.
A couple of months later Richmond messaged Wendy on
Facebook. Richmond picked her up and drove to a McDonald’s.
Clark walked up and got into the car. Richmond drove them to
her (Richmond’s) house. Clark told Wendy, “ ‘You’re gonna work
for me.’ ” Wendy said she was not going to work for him. Clark
“snatched” her phone and broke it, then took her purse with
her wallet in it. He “sock[ed]” her with a closed fist in the face,
forehead, eye area, nose, and jaw 40 to 50 times. He also kicked
her 10 to 15 times. Wendy was “dripping blood everywhere.”
Even a year later, Richmond was still contacting Wendy about
working for her and Clark.
b. Lauren R.
Detectives interviewed Lauren R. in the autumn of 2017.
Lauren identified Clark and Richmond in photo six-packs.
However, at trial, Lauren at first claimed not to remember
anything beyond the fact that she had participated in commercial
sex at the E-Z8 in Lancaster. She testified “P.C.” and “J.J.”
had been at the E-Z8 with her, but initially she claimed not
to recognize Clark or Richmond in the courtroom. After the
prosecutor showed Lauren a transcript of her preliminary
4
hearing testimony, she admitted Clark had picked her up
at 77th and Figueroa in Los Angeles.
Clark had been following Lauren in his car and she
“confronted the car.” Lauren got into the car, and she and Clark
had a conversation about “[m]aking money”; to her that meant
“[p]rostitute.” “He said to make money with him” and he was
going to take care of her. She was 16 at the time.
Lauren felt “very dazed, confused; out of it.” “It felt
like something had been in [her] arm”; she believed Clark
put a needle in her arm. Clark admitted he’d put something
in Lauren’s arm but he never said what it was. Lauren “[woke]
up” on the freeway, and Clark said they were going to Lancaster.
Clark said Lauren “would try it out” and, once she’d made
$10,000 for him, she could leave Lancaster if she wished.
Richmond got Lauren a room at the E-Z8 in Lancaster
and took her to get some clothes and get her nails done. Lauren
figured she was going to have to “prostitute” in exchange.
Richmond took Lauren’s picture and posted ads; Lauren started
“catching dates.” Lauren did both in-calls and out-calls.
Richmond drove her to the out-calls.
Clark and Richmond determined how much Lauren would
charge. She gave them all the money. Sometimes Clark punched
Lauren in the stomach with a balled-up fist. She couldn’t
remember why he hit her, but “it was usually, in [her] opinion,
over money.” Clark asked Lauren for “a blow job a couple [of]
times” and she felt she couldn’t say no. She couldn’t say no to
Richmond either “[b]ecause they’re a team, and I’m working for
both of them.” Lauren feared not doing what Richmond asked
because “[s]he was like the shot caller.” “She arranged the
dates,” took Lauren to out-calls, got her clothes. “[I]t seemed like
she was . . . the one in control.”
5
Lauren stayed with Clark and Richmond between a week
and a month. She did not feel she could come and go as she
pleased. When Lauren ran out of methamphetamine, Clark
would get some for her. Lauren was “catching dates non-stop”;
she was “doing a lot more” drugs than she had before coming
to Lancaster because the drug was her “happy place.” It also
helped her stay awake so she could catch more dates. Eventually
a customer helped Lauren get away.
c. Faythe S.
Faythe S. met Clark at a gas station in about 2015. She
was 18. They exchanged information. About a week later they
met up, hung out, and smoked. Clark explained he was a pimp,
“he had hoes”; he told Faythe she could work for him. Faythe
started working for Clark on Sepulveda, where there were
“[h]oes, pimps, tricks.”
Richmond went to Sepulveda with Faythe four or five
times. On Sepulveda, Faythe would have seven or “maybe more”
dates in one night. Richmond also got Faythe rooms on
Sepulveda and at the E-Z8 in Palmdale. Faythe’s Backpage ads
had a contact email of queenjavey185@gmail.com and a telephone
number of 323-900-9279. Those were not Faythe’s email or phone
number.
In a 24-hour period, Faythe would have four dates for cash
and ten or more using bitcoin. Clark gave her “crystal meth” so
she could stay up. Richmond provided Faythe with condoms and
got her clothes. Clark and Richmond set Faythe’s prices and she
gave them the money. “I ha[d] to give it to them.” She never
kept any for herself.
Sometimes, when Faythe “finished all the condoms” she’d
been given, she could stop getting dates for that night. But other
times Clark told her she had to keep working. She didn’t feel she
could say no; Clark “was very angry” and would “curse [her] out”
6
and call her “bitch” and “ho” when she was “being lazy.” “And
[he] told me I needed to work—go back to work.” Once, Faythe
was raped on Sepulveda. She told Clark and Richmond. Clark
told her to go back to work. Faythe was scared Clark was going
to get violent.
Faythe saw how Clark treated Wendy: “He treated her
bad.” He yelled at her. When asked, “[W]as it violent?” she
responded, “Yes.”
When asked if she “could really stop working for” Clark
and Richmond, Faythe answered, “Yeah.” When asked if she
was allowed to come and go as she pleased, she again said,
“Yeah.” Faythe testified she didn’t have a car but she could
use Richmond’s and Clark’s car.
Faythe worked for Clark and Richmond for five or six
months. In 2015 or 2016 she went to jail. Sometime later,
Richmond texted her to see if she was “interested again.”
Faythe told Richmond she was not.
On cross-examination Faythe testified Clark and Richmond
didn’t “force[ ] [her] into being a commercial sex worker for
them.” She said Clark never hit her.
d. Carly C.
On October 17, 2017, Santa Ana Police Department
Detective James Marquez was working vice around 4:00 a.m.
in an area that’s “the most famous track in Orange County.”
Marquez saw a young woman—later identified as Carly C.—
standing on a corner in the “track area of the city.” She was
“paying attention to motorists passing by.” Marquez watched
Carly for about 45 minutes and saw her “contact two separate
vehicles . . . occupied by solo male drivers.”
Marquez spoke with Carly later at the police station. She
was 17. He asked her if he could scroll through her cell phone
and she agreed. Based on text messages on the phone, Marquez
7
“was concerned that she was being pimped out or trafficked.”
He saw contacts for “P.C.” and “J.J.” When Marquez asked Carly
if her pimp “was treating her all right,” she replied, “[Y]eah, it’s
nothing.” But then she seemed to “[catch] herself” and denied
she had a pimp. Carly admitted she had a “male friend” to whom
she gave money but she didn’t want to name him. She also told
Marquez that “J.J. had somebody watching over her while she
was at the track to make sure that she was safe.”
In 2017 Detective Gary Furuyama was part of the sheriff’s
department’s human trafficking task force. On October 30, 2017,
he posed as a “commercial sex buyer” under the supervision of
Detective Julia Levenson. Furuyama texted and called a number
listed in a Backpage ad for a “hot Brazilian” in Lancaster. He
was told the charge would be $60 for “[a] blow job and a handjob,”
and he should go to room 225 at the E-Z8 motel.4
When Furuyama got to the top of the stairs leading
to the room, he passed Richmond. She seemed to be coming
from room 225. In the room, Furuyama met Carly, whom he
recognized from her photo in the ad. Furuyama handed Carly
cash in marked bills. She put the money in the nightstand and
retrieved a condom from a suitcase. Furuyama gave a signal to
other officers who then knocked loudly on the door, announcing
it was law enforcement.
At trial, Carly testified she did not want to be a witness
“at all.” She said, “I did everything on my own.” Carly testified
she met Richmond through a friend in early 2017. They “were
4 The prosecution introduced a receipt for the E-Z8 motel
in Lancaster with Richmond’s name on it. The receipt showed
Richmond paid cash for room 221 for the dates of October 16 and
17, 2017, and for room 225 for the dates of October 18, 19, 20, and
21, 2017.
8
very close” and “spen[t] a lot of time together.” In the fall of 2017,
Carly “decided [she] wanted to be a prostitute.” Richmond, who
“was [her] best friend at the time,” “didn’t like [her] doing dates.”
Carly denied Richmond ever did anything to help her
“catch dates”; Richmond didn’t take pictures of her for ads or
post ads for her, nor did she ever drive Carly to the blade. Carly
admitted she’d worked out of a room at an E-Z8 motel, but she
denied Richmond or Clark ever rented that room.5 Carly said,
“I would have a friend do it,” but when asked, “What friend?”
she replied, “I don’t have any names.”
Carly denied she ever communicated with Clark “about
anything commercial sex-related” or ever gave him any money.
She testified she had no knowledge of Clark or Richmond being
pimps.
2. The charges, trial, verdicts, and sentences
The People charged both defendants with two counts of
human trafficking of a minor for a commercial sex act by force,
fear, fraud, deceit, coercion, violence, duress, menace, or threat
of unlawful injury in violation of Penal Code section 236.1,
subdivision (c)(2)6 (counts 1 [Wendy S.] and 4 [Lauren R.]);
one count of human trafficking of a minor for a commercial
sex act in violation of section 236.1, subdivision (c)(1) (count 3
[Carly C.]); and one count of human trafficking in violation of
section 236.1, subdivision (a) (count 5 [Faythe S.]). The People
also charged Clark with second degree robbery of Wendy S.
(count 2).
Both defendants chose not to testify.
5 The prosecution introduced another receipt from the E-Z8
showing Clark paid cash for room 222 on October 18, 2017.
6 References to statutes are to the Penal Code.
9
The jury convicted the defendants on all counts and, on
counts 1 and 4, found true the sentencing factor that the crimes
involved force, fear, or the like. The trial court sentenced Clark
to 45 years and eight months to life in the state prison. The
court imposed indeterminate terms of 15 years to life on counts
1 and 4. On count 3 the court chose the upper term of 12 years.
On counts 2 and 5 the court imposed one-third the midterms of
one year and two years eight months, respectively, to be served
consecutively.
The court sentenced Richmond to 40 years and eight
months to life in the state prison. Again, the court imposed
indeterminate terms of 15 years to life on counts 1 and 4.
On count 3 the court chose the midterm of eight years. On
count 5 the court imposed one-third the midterm of two years
eight months, to be served consecutively.
DISCUSSION
1. There was no instructional error on counts 1 and 4
Clark contends the trial court prejudicially erred when it
instructed the jury that the sentencing factor of force, fear, or
the like requires only general intent. Richmond joins in this
argument.
a. The trial court instructs the jury with instructions
counsel have agreed to and approved
Section 236.1, subdivision (c) provides, “A person who
causes, induces, or persuades, or attempts to cause, induce,
or persuade, a person who is a minor at the time of commission
of the offense to engage in a commercial sex act, with the intent
to effect or maintain a violation of [specified sections of the
Penal Code] is guilty of human trafficking.” Subdivision (c)(1)
provides for punishment of five, eight, or 12 years and a fine.
Subdivision (c)(2) provides for a sentence of 15 years to life
“when the offense involves force, fear, fraud, deceit, coercion,
10
violence, duress, menace, or threat of unlawful injury to the
victim or to another person.” (§ 236.1, subds. (c), (c)(1) & (c)(2).)
As noted, the People charged defendants with two counts
of violating section 236.1, subdivision (c)(2) (section 236.1(c)(2)),
naming as victims Wendy S. and Lauren R. (counts 1 and 4,
respectively). The People also alleged one count of violating
section 236.1, subdivision (c)(1) (section 236.1(c)(1)), naming
Carly C. as the victim (count 3). Before testimony began,
the court discussed possible jury instructions with counsel.7
The court noted a violation of section 236.1(c)(1) is essentially
a lesser crime of a violation of section 236.1(c)(2). The court
proposed instructing the jury on the elements of section
236.1(c)(1) and then having the jury make “true” or “not true”
findings on the “enhancement allegation” that the offense
involved force, fear, or the like. The court said, “I think that’s
the most efficient and least confusing way to do it.” The court
continued, “Because . . . (c)(2) is just a sentencing enhancement.
If (c)(1) is committed, was it committed under these
circumstances?” None of the lawyers objected to the court’s
proposal.
Toward the end of trial, the court again discussed jury
instructions with counsel. The court noted it had given counsel
7 The issue came up in the context of the prosecution’s
motion in limine to preclude defense counsel from asking the
alleged victims about their “voluntary” conduct or “consent.”
The court noted “consent” is not a defense when the victim
was a minor. (§ 236.1, subd. (e).) The court suggested defense
counsel could cross-examine the victims by asking, for example,
if Clark threatened them with violence or tricked them into
thinking they were going to a party. Clark’s counsel replied,
“I think the court’s ruling is fair and it addresses the concerns
of both parties.”
11
a set of proposed instructions the previous week. The court again
raised the issue of how to instruct on counts 1 and 4.
“[T]here are two separate ways to deal with
the charges here. . . . [¶] You can either instruct
as to (c)(2) and then give (c)(1) as a lesser
instruction, or you can give a (c)(1) instruction
and then give (c)(2) as a further allegation.
[¶] I think the much cleaner way to go is to
instruct first as to (c)(1) and then have the
allegation as to (c)(2). It’s cleaner in the verdict
form. It’s easier to understand, especially here
where we have count 3, which is a separate
count of (c)(1). [¶] Subdivision (c)(2) is only
a sentencing provision. If it’s found that the
violation of (c)(1) was under certain conditions,
then it’s an enhanced sentence. So I set up
the instruction that way, to give [CALJIC No.]
9.62.4 after [CALJIC No.] 9.62.3; meaning
that’s the allegation applied to counts 1 and 4.”
The court then asked both defense attorneys, “Do you have
any opposition to that?” Both replied, “No.” All counsel
then confirmed they had no objection to any of the proposed
instructions, nor were they requesting any additional
instructions.8
The court instructed the jury with CALJIC No 9.62.3 on the
elements of a section 236.1(c)(1) violation and CALJIC No. 9.62.4
regarding the allegation that the crime “involved force, fear,
8 Clark’s counsel had raised an issue about the definition
of “debt bondage,” as used in CALJIC No. 9.62.4. The court
had found a definition in a case and added it to the instruction;
Clark’s counsel was satisfied.
12
fraud, deceit, coercion, violence, duress, menace, or the threat of
unlawful injury.” CALJIC No. 9.62.3 included the requirement
that “[t]he person did so with the specific intent to effect or
maintain a violation of section 266h of the Penal Code.” The
court also gave the jury the elements of section 266h, pimping.
In addition, the court gave CALJIC No. 3.30, instructing the jury
that, for the allegation in counts 1 and 4 that the offense involved
force, fear, or the like, “there must exist a union or joint operation
of act or conduct and general criminal intent.”
b. No authority supports defendants’ contention that
the sentencing factor of force, fear, or the like requires
specific intent
Clark asserts the court’s instruction on general intent
for the “force or fear” allegation “relieved the prosecution of
its burden of establishing a facilitative nexus between [Clark’s]
application of the force or coercion and the specific intent to cause
or otherwise persuade the minor to engage in the commercial sex
transactions for [Clark’s] benefit.” It’s unclear what Clark means
by this.
The court instructed the jury that, to prove trafficking
in counts 1, 3, or 4, the People were required to prove that the
defendant “cause[d], induce[d], or persuade[d], or attempt[ed] to
cause, induce, or persuade” a minor “to engage in a commercial
sex act, with the specific intent to effect or maintain a violation of
section 266h,” pimping. (Italics added.) If, and only if, the jurors
found the People had proved that, then they were to decide if
the allegation that the crime “involved force, fear,” or the like
was true or not true. (See CALJIC No. 9.62.4 [“If you find
a defendant guilty of a violation of Penal Code section 236.1,
subdivision (c)(1) in Count 1 and/or Count 4, you must determine
whether that offense involved” force, fear, or the like. (Italics
added.)]. Cf. CALCRIM No. 3184 [“If you find the defendant
13
guilty of the crime[s] charged . . . you must then decide
whether[, for each crime,] the People have proved the additional
allegation that when the defendant committed (that/those)
crime[s], (he/she) used [force or fear or the like].” (Italics
added.)].) In other words, the jury had to determine if each
defendant committed the crime with the requisite specific
intent before deciding the “force or fear” sentencing factor.
Does Clark mean to argue the jury should have been
instructed that the People had to prove he caused the victims
to engage in commercial sex acts with the specific intent to
pimp them, and then also to prove he used force, fear, or the like
with the (same) specific intent to pimp the victims? But, again:
when reaching and deciding the “force or fear” allegation,
the jury already would have determined Clark acted with
the requisite specific intent.
To the extent Clark contends a sentencing factor or
enhancement must require specific intent when the underlying
crime to which the allegation is attached requires specific intent,
he is mistaken. For example, a defendant may be charged with
robbery or criminal threats—both specific intent crimes (see
CALCRIM Nos. 1600, 1300)—and with an allegation that he
or she used or discharged a firearm, or inflicted great bodily
injury, in the commission of the crime. Firearm allegations are
general intent enhancements. (See People v. Wardell (2008)
162 Cal.App.4th 1484, 1493-1495 [firearm enhancements alleged
for both robbery—a specific intent crime—and felony false
imprisonment—a general intent crime].) The personal infliction
of great body injury is as well (People v. Carter (1998) 60
Cal.App.4th 752, 755-756), and it may be alleged in connection
with a specific intent offense. (See, e.g., People v. Wallace
(1993) 14 Cal.App.4th 651, 663-665 [defendant convicted of both
general and specific intent crimes]; cf. People v Brown (1985)
14
174 Cal.App.3d 762, 766-767 [great bodily injury enhancement
in rape case does not require specific intent].)
Clark concedes there’s no case recognizing the rule he
urges us to adopt. Clark cites People v. Carrasco (2006) 137
Cal.App.4th 1050 (Carrasco). He misreads that case.
A jury convicted Carrasco of three robberies and found true
allegations that he personally used and discharged a firearm
in the commission of the crimes. Carrasco had come to a store
where his former friend Dorado worked and demanded money.
Dorado refused, and Carrasco left, but returned about an hour
later, raising his hand in the shape of a gun outside the store.
Carrasco then argued with a driver in the street outside and fired
two shots toward the car as the driver left the parking lot. About
30 minutes later, Carrasco called Dorado and told him he was
nearby and the bullet was meant for him. Two hours later,
Carrasco returned and demanded Dorado give him money
for beer. Dorado gave Carrasco $5. (Carrasco, supra, 137
Cal.App.4th at pp. 1054-1055.)
On appeal, Carrasco contended he hadn’t fired the gun
“during the commission” of the robbery. (Carrasco, supra,
137 Cal.App.4th at pp. 1053, 1059.) The court rejected this
contention, stating that when a defendant “ ‘ “deliberately shows
a gun” ’ ” and there’s no evidence of “ ‘ “any purpose other than
intimidating the victim,” ’ ” “ ‘ “the jury is entitled to find
a facilitative use rather than an incidental or inadvertent
exposure.” ’ ” (Id. at p. 1059.) The appellate court also rejected
Carrasco’s argument that the trial court should’ve instructed
the jury that the firearm enhancement required the same
“concurrence of act” and specific intent as did the robbery. (Id.
at pp. 1060-1061.) In short, Carrasco supports the prosecution’s
position, not Clark’s.
15
The statutory language here does not say the defendant
must have intended to traffick the minor using force or fear.
Rather, it prescribes a life sentence if the “offense involve[d] force,
fear, fraud, deceit, coercion, violence, duress, menace, or threat
of unlawful injury.” (§ 236.1(c)(2), italics added.) “The specific
intent requirement [of trafficking a minor for sex] is entirely
separate from the [requirement that the offense involved force,
fear, or the like].” (See People v. Jones (1997) 58 Cal.App.4th
693, 717 [one strike sentencing factor that defendant used
force or fear to move victim a substantial distance and that
the movement substantially increased the risk of harm to victim
did not require specific intent; “The specific intent requirement
is entirely separate from the ‘risk of harm’ requirement.”; “We
see no reason to drag the specific intent requirement along with
it.”].)9
9 The Attorney General contends subdivision (c)(2) of
section 236.1 “is not an enhancement, but an alternate penalty
provision.” The CALCRIM equivalent of CALJIC No. 9.62.4 is
CALCRIM No. 3184. That instruction is entitled, “Sex Offenses:
Sentencing Factors—Using Force or Fear to Cause Minor
to Engage in Commercial Sex Act.” (CALCRIM No. 3184.)
An enhancement is “an additional term of imprisonment
added to the base term.” (Cal. Rules of Court, rule 4.405(3).)
An enhancement doesn’t define a crime but instead imposes
an added penalty when the crime is committed under specified
circumstances. (See, e.g., People v. Superior Court (Grilli) (1978)
84 Cal.App.3d 506, 512.) As a leading treatise notes, it may be
difficult to determine “whether a particular statute defines a
crime, specifies the term of imprisonment for a crime, or creates
an enhancement, and the case law is sometimes confusing.”
(3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2021)
Punishment, § 344, p. 526. See, e.g., People v. Bright (1996)
12 Cal.4th 652, 665 [section 664, subdivision (a), prescribing
life term for willful, deliberate, premeditated murder, defines
16
Finally, any instructional error on this point was harmless
in any event. (People v. Watson (1956) 46 Cal.2d 818.) There
was no evidence that Clark beat or threatened Wendy and
Lauren for any reason other than to compel them to continue
to work for him and to give him the money they made as sex
workers. Clark stomped and kicked Wendy when she hid her
$40 tip; he called her names; and he beat her until she was
“dripping blood” when she refused to return to work for him
and Richmond. Similarly, Clark punched Lauren “over money.”
It is not reasonably probable the jury would have reached a result
more favorable to Clark had the court instructed the jury that
the sentencing factor required specific intent. (See People v.
Guyton (2018) 20 Cal.App.5th 499, 508 (Guyton).)
2. Substantial evidence supports the jury’s verdicts
that Richmond aided and abetted violations of
section 236.1(c)(2) as to victims Wendy S. and
Lauren R.
Richmond contends her conviction on counts 1 and 4 for
trafficking of a minor involving force, fear, fraud, deceit, coercion,
enhancement, not separate crime]; People v. Best (1983) 143
Cal.App.3d 232, 235 [section 264.1, specifying punishment for
rape in concert, defines separate crime and is not enhancement].)
For our purposes, it doesn’t matter whether the “force, fear”
sentencing factor is an enhancement, a special allegation, or
something that renders a violation of section 236.1(c)(1) the
entirely separate crime of a violation of section 236.1(c)(2),
“aggravated human trafficking.” (See, e.g., People v. Jacobo
(2019) 37 Cal.App.5th 32, 37, 40-42.) As a true finding on that
sentencing factor increases a defendant’s punishment, the jury
of course must find the prosecution has proved it beyond a
reasonable doubt. (Apprendi v. New Jersey (2000) 530 U.S. 466.)
The jury so found in this case.
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violence, duress, menace, or threat of unlawful injury must
be reversed or, in the alternative, the “force or fear” allegation
stricken.10 She asserts she was “tried . . . solely as a direct
perpetrator as to” the “force or fear” allegation, and there was no
evidence she personally used force or violence against the victims.
In the alternative, Richmond argues the accomplice liability
instruction applied only to the “crime” and not to the “force or
fear” allegation. We are not persuaded.
As we have said, the court instructed the jury on the
elements of trafficking a minor with CALJIC No. 9.62.3, which
included the requirement of specific intent. The court also
instructed the jury on aiding and abetting, using CALJIC
Nos. 3.00, 3.01, 3.03, and 3.14. CALJIC No. 3.01 set forth the
requisite specific intent as well as the requirement of knowledge.
CALJIC No. 3.14 told the jurors that “[m]erely . . . assisting”
or aiding without the required knowledge, intent, or purpose
did not make one an accomplice.
Richmond cites no case that holds a jury must be
separately instructed on aiding and abetting a sentencing factor
or enhancement. (Cf. Carrasco, supra, 137 Cal.App.4th at
pp. 1060-1061 [rejecting contention that court should have
modified jury instruction on robbery by inserting “allegations”
after the word “crimes”].) Counts 1 and 4 charged Richmond (and
Clark) with violating section 236.1(c)(2), trafficking a minor for
10 It is unclear if Clark purports to join in this argument. In
his opening brief, he says he “joins in any arguments advanced
by co-defendant Richmond that may accrue to his benefit.” As
the Attorney General notes, Clark offers no “argument [on this
issue] specific to his own circumstances.” In any event, any
such contention by Clark is without merit, as there was ample
evidence that he used force, fear, coercion, violence, and menace
in his dealings with victims Wendy S. and Lauren R.
18
commercial sex by force or fear. The jury found Richmond guilty
on those counts, and substantial evidence supports those
verdicts. While Clark was the one who actually beat the girls,
Richmond directly aided and abetted him in the crimes by placing
Backpage ads, taking calls from tricks, arranging dates, and
collecting money from the victims. She drove Lauren to out-calls
and rented a room at the E-Z8 in Lancaster for her to perform
services. She stood by while Clark threw Wendy off a bed, then
kicked and stomped her as she lay on the floor. Lauren believed
she couldn’t say no to Richmond because she and Clark were
“a team.” “She was like the shot caller.” “[I]t seemed like she
was . . . the one in control.” Even after Wendy left, Richmond
was the one who contacted her and then drove her to a
McDonald’s where Clark got into the car, then later beat and
robbed her, leaving her “dripping blood.” A year later, Richmond
was still contacting Wendy about coming back to work for her
and Clark.
Richmond also contends she never beat the victims but
“was instead beaten herself.” Wendy testified she had seen Clark
“assault” and “beat up” Richmond. “[A] couple of times,” Wendy
saw Clark “dragging [Richmond] by her hair.”
But Richmond chose not to testify. She never said Clark
forced her to do anything. Her counsel never asked the court
to instruct on a defense of duress (see CALCRIM No. 3402)
nor, in any event, was there any evidence that, if she had not
participated fully in the recruitment and management of the
victims, her “life would [have been] in immediate danger.”
(CALCRIM No. 3402.)
In closing argument, Richmond’s counsel suggested Clark
was “actually running the show” but he conceded Richmond “was
like the right-hand man [sic].” Counsel acknowledged Richmond
and Clark had children together, and Richmond “operate[d] in
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sort of a managerial capacity.” But, he argued, Clark “kept the
money in the end.” Counsel referred to Wendy’s testimony—
though noting “her credibility ha[d] been serious[ly] called
into question”—and proposed “[m]aybe [Richmond] . . . was
battered into low self-esteem.”
Low self-esteem does not constitute duress. Having
examined the entire record in the light most favorable to
the judgment of conviction, as we must (Guyton, supra, 20
Cal.App.5th at p. 506), we are satisfied substantial evidence
supports the jury’s true finding on the sentencing factor
for Richmond.
3. Substantial evidence supports defendants’
convictions on count 5
Both Clark and Richmond contend there was not
substantial evidence that they deprived Faythe S. of, or violated,
her personal liberty, as required for a violation of section 236.1,
subdivision (a).
The principles governing our assessment of a defendant’s
challenge to the sufficiency of the evidence are well settled.
We must review the whole record in the light most favorable to
the judgment below to determine whether it discloses substantial
evidence—that is, 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. Brooks
(2017) 3 Cal.5th 1, 57.) We presume in support of the judgment
the existence of every fact the trier of fact reasonably could infer
from the evidence. (Guyton, supra, 20 Cal.App.5th at p. 506.)
If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the
circumstances might also be reconciled with a contrary finding.
A reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility. (People v. Wyatt (2010) 48 Cal.4th 776, 781;
20
Oliver, supra, 54 Cal.App.5th at p. 1099.) Substantial evidence
includes circumstantial evidence and any reasonable inferences
drawn from that evidence. (Brooks, at p. 57; Oliver, at p. 1099.)
Clark asserts “there was virtually no evidence that Faythe
was ever compelled to work as a prostitute or that her personal
liberty was in any way compromised through any coercive actions
on either [Clark’s] or Richmond’s part.” Similarly, Richmond
argues, “Faythe was already a sex worker when she met Clark,
and agreed of her own free will to work for him.” Richmond says
Faythe “was free to come and go whenever she pleased,” and she
“had access to Clark’s car if she ever wanted to go somewhere.”
While Faythe had “had sex for money” before she met
Clark when she was 18, section 236.1(a) does not require that
the defendant be the first to persuade a victim to become a
commercial sex worker. The crime is committed when the
defendant “deprives or violates the personal liberty of another
with the intent to obtain forced labor or services.” (§ 236.1,
subd. (a).) The statute 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 . . . , under circumstances where
the person receiving or apprehending the threat reasonably
believes that it is likely that the person making the threat
would carry it out.” (§ 236.1, subd. (h)(3).)
The use of the word “includes” suggests other means—
in addition to those listed—can satisfy the statute. (See Oliver,
supra, 54 Cal.App.5th at pp. 1096-1097.) “[T]he Legislature
adopted a broader definition of deprivation of personal liberty for
purposes of human trafficking” than that for false imprisonment.
(Id. at p. 1096.) Human trafficking does not require that the
deprivation of personal liberty—the confinement or restraint—is
21
itself unlawful. “Instead, confinement or restraint is punishable
. . . if it is done with ‘the intent to effect or maintain’ a separate
enumerated offense such as pimping and prostitution.” (Ibid.)
When walking the blade, Faythe had seven or “maybe
more” “dates” a night. At the E-Z8—where Richmond rented
a room for her—she had 14 or more “dates” in a 24-hour period
(some for cash and some for bitcoin). Faythe gave Clark and
Richmond all the money she made; she never kept any for
herself.
If Faythe “finished all the condoms” Richmond had given
her, she might be able to stop for the night. But other times
Clark told her she had to keep working. Clark made her work
even after she was raped. She didn’t feel she could say no; a
“very angry” Clark would yell and “curse [her] out.” She feared
Clark would get violent. Clark gave Faythe methamphetamine
so she could stay up.
While Faythe testified Clark had never hit her, Wendy
testified about a time Faythe “didn’t want to work no more, and
she was tired.” “[S]he didn’t want to work, or . . . she wanted
something.” Clark “got mad that he had to buy her something,
or that she had to go to sleep.” “He took her to the car.” When
Faythe returned, she had injuries that gave Wendy reason to
believe she’d been beaten up.
While the evidence at trial, taken as a whole, might
“reasonably be reconciled” with a not guilty finding, it is
sufficient to support the guilty verdicts on count 5. (See Oliver,
supra, 54 Cal.App.5th at pp. 1098-1101 [finding substantial
evidence to support conviction for human trafficking even though
victim “was free to go when she pleased”; defendant used verbal
abuse to gain victim’s compliance and “required [her] to work
as a prostitute every day and to give [him] all the money she
earned”]; Guyton, supra, 20 Cal.App.5th at pp. 503, 506-507
22
[human trafficking conviction affirmed; even though adult victim
had her own hotel room, bought her own food, and had a cell
phone, defendant gave her a daily quota, called her names
when she didn’t follow the rules, made her work when she
was exhausted, and took all the money she made].)
DISPOSITION
We affirm the judgments.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
WINDHAM, J.
Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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