People v. Brandon

• Decision Date: 15 December 2006
• Docket Number: No. B186361.,B186361.
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Marlon BRANDON, Defendant and Appellant.

52 Cal.Rptr.3d 427

145 Cal.App.4th 1002

The PEOPLE, Plaintiff and Respondent, v. Marlon BRANDON, Defendant and Appellant.

No. B186361.

Court of Appeal, Second District, Division 5.

December 15, 2006.

Certified for Partial Publication.^*

As Modified December 20, 2006.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte, and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Marlon Brandon, appeals from his convictions for: three counts of pimping (Pen.Code,¹ § 266h, subd. (a)); four counts of pandering by procuring (§ 266i, subd. (a)(1)); attempted pandering by procuring (§§ 266i, subd. (a)(1), 664); three counts of false imprisonment by violence (§ 236); forcible rape (§ 261, subd. (a)(2)); aggravated sexual assault of a child (§§ 261, subd. (a)(2), 269, (a)(1)); forcible lewd act upon a child (§ 288, subd. (b)(1)); lewd act upon a child (§ 288, subd. (a)); aggravated sexual assault of a child, oral copulation (§§ 269, subd. (a)(4); 288a); forcible oral copulation (§ 288, subd. (c)(2)); and two counts of procuring a child to engage in a lewd act. (§ 266j.) The jury further found defendant personally used a dangerous and deadly weapon in the false imprisonment by violence offense against Mamie D. Defendant argues: Mamie, a victim, was improperly permitted to testify with her face partially covered; opinion testimony concerning pimping strategies was erroneously presented to the jury; he was denied effective assistance of counsel; there was insufficient evidence to support his false imprisonment conviction; and various sentences must be stayed pursuant to section 654, subdivision (a). We agree that the felony false imprisonment sentence resulting from an attempt to pander Kaleena R. (counts 5 and 22 respectively) must be stayed pursuant to section 654, subdivision (a).

II. FACTUAL BACKGROUND

A. Kaleena (Counts 5 And 22)

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Elliot (2005) 37 Cal.4th 453, 466, 35 Cal.Rptr.3d 759, 122 P.3d 968; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) Kaleena worked as a prostitute on Figueroa Street in Los Angeles. On November 14, 2002, Kaleena was attempting to avoid contact with Officer Rene Minnick, who often arrested prostitutes. Also, Kaleena was hoping to avoid pimps who might "hassle" her to work for them. Kaleena took the side streets to a nearby MacDonald's restaurant.

A man who Kaleena had previously seen on Hollywood Boulevard began following her in a black truck. Kaleena saw defendant sitting on a porch in front of a nearby house. Defendant quickly approached Kaleena and got close to her face. Kaleena was aware of a "rule on the streets" that a prostitute should not look a pimp, other than her own, in the eye. To do so could result in that pimp taking the prostitute's money. Kaleena attempted to turn to walk away. However, defendant placed his arms around her from behind, trapping her between himself and the gate to his house. Defendant asked Kaleena who was her pimp. Kaleena pointed to the name tattooed on her calf. Defendant identified himself at "Mac-Bone" or "Bob." Kaleena saw the man in the truck again. Kaleena told defendant, "`That's the guy right there that was harassing me.'" Defendant said, "`That's my cousin; he's not going to bother you while you standing here talking to me.'" Defendant's mother came outside and said, "`I like her.'" Defendant said Kaleena resembled his "Ho" named "Cherry."

Defendant told Kaleena that he wanted her to be on his "starting lineup." Kaleena understood this to mean that she would be one of the first set of prostitutes who control the rest of the women who work for him. Defendant said he had prostitutes in Florida and several places from which she could choose to work. Defendant told Kaleena she could get into either a green Cadillac or the black Cadillac Escalade parked nearby. Defendant told Kaleena that either way she was going to get into one Cadillac or another. Defendant told her, "We could do this the easy way by you going into the car; or, we could do this the hard way." Kaleena understood that to mean that defendant was going to take her against her will. Kaleena did not want to get into either car. Kaleena, who did not feel free to leave, was afraid because she had heard stories from other prostitutes. Kaleena saw Officer Minnick pull up in a police car. Kaleena stared at Officer Minnick. Kaleena stared in an attempt to communicate that she needed help. Defendant's mother wrote down a number on a piece of paper and gave it to Kaleena. Defendant told her it was his phone number and she should use it. Kaleena understood it to mean that she should call him when she was ready to "Ho" for him. A prostitute is not allowed to work for more than one pimp at a time. The pimp she worked for had placed the tattoo on her leg.

Officer Minnick saw defendant confining Kaleena. Defendant had his arms around Kaleena. Defendant's hands were clutching the chain link fence. Officer Minnick also saw a black Cadillac Escalade truck illegally parked at the sidewalk over the crosswalk with the passenger door open. Officer Minnick made eye contact with Kaleena. Thereupon, Kaleena stared at Officer Minnick and then looked away. In the meantime, someone moved the black truck and parked it on the other side of the street. A black female got out of the truck and walked over to where Kaleena and defendant were standing. Defendant later let go of the fence. Kaleena immediately walked over to Officer Minnick's police car. Kaleena asked Officer Minnick to fake an arrest. As Kaleena spoke to Officer Minnick, defendant's mother approached from behind with a dog. Officer Minnick asked other officers who had arrived to detain Kaleena. Kaleena explained she did not want it to look like she was "telling." This is because if a prostitute "tells" on a pimp, she can be beaten or killed. Kaleena asked to be taken to the police station because she was afraid to talk to Officer Minnick in the presence of others. All of the foregoing interactions between defendant and Kaleena occurred on a single occasion.

Two officers questioned Kaleena at the police station. Kaleena told them what had occurred and gave them the paper with the phone number. Kaleena was afraid when defendant told her she could do it the easy or the hard way because he could react violently if she made him angry. Kaleena believed defendant might put her in the car against her will. Kaleena understood "`The Game'" to mean: "[Y]ou're set with a pimp and you can't get out of line with any other pimp. That means no eye contact, no conversation, nothing. You have to—you have to stay truthful to your pimp. You can't get out of line with no other pimp." Kaleena knew that if a prostitute gets "out of line," she may be beaten by her pimp. According to Kaleena, "word get[s]" around on the street if a prostitute speaks to another pimp.

B. Elisha G. (Counts 11, 12, 13, 14, 15, 16, And 21)

Elisha was born in October 1987. Elisha had lied about her age to police while working as a prostitute. Elisha used the name Monica E. when she talked to the police. Elisha acknowledged she told Detective Keith Haight that in November 1998, when she was 11 years old, she met defendant at a Greyhound bus station in San Bernardino. When she was subpoenaed to testify against defendant, Elisha fought with jail personnel and lay down on the floor to avoid having to testify against defendant. Elisha did not'recall previously stating that defendant: took her to Los Angeles; asked her out on a date; told her she was pretty and attractive; met her at an auto body shop near her house; showed her pictures of girls dressed in shortshorts and stilettos; asked her if she would like to look like the girls in the photos; told her if she stayed with him she could look like the girls in the photos; told her that her parents did not care about her and she should go with him; and told her he would buy her clothes. In court, Elisha testified, "I went with him on my own free will; he didn't force me to do anything."

Further, Elisha did not remember stating that: defendant took her to a motel room, where he told her that he was a pimp and the girls in the photos were his whores; while in the motel room defendant asked her if she would "whore" for him; and defendant allowed her to call her parents from his cell phone and, when they did not answer, he said, "`See, if they were worried they would have answered the phone[.]'" Elisha did not remember ever stating: she finally agreed to be defendant's prostitute; defendant told her never take less than $50 for "head"; defendant explained that "head" meant oral copulation or sex; defendant told her the customer should touch her first on her breasts or crotch; defendant also said she should fondle the penis of a customer to determine if he is a police officer; defendant said if she was going to a hotel room with a customer, she should call him first; defendant said that she should bring the money back to him immediately after having sex; and defendant promised to take care of her and reward her with pretty clothes if she did all of these things.

Detective Haight interviewed Elisha at the Los Angeles County Juvenile Hall in October and November 2003. Elisha told Detective Haight that defendant, whom she knew as "Mac-Bone," was her pimp. Elisha said she met defendant at a bus station in San Bernardino in November 1998 when she was 11 years old. Defendant approached Elisha. Defendant told Elisha she was pretty. Defendant repeatedly asked Elisha for her phone...