People v. Clark
| Decision Date | 12 December 2019 |
| Docket Number | G055874 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Donald Levan CLARK, Defendant and Appellant. |
A jury convicted defendant Donald Levan Clark of human trafficking of a minor ( Pen. Code, § 236.1, subd. (c)(1) ( section 236.1(c) ); count 1),1 attempted pimping of a minor (§§ 664, subd. (a), 266h, subd. (b)(1); count 2), and pandering (§ 266i, subd. (a); count 3). The court sentenced defendant to a total state prison term of 16 years as follows: (1) the middle term of eight years on count 1, which was doubled to 16 years pursuant to the "Three Strikes" law; (2) the middle term of two years on count 2, which was doubled to four years pursuant to the Three Strikes law; and (3) the middle term of four years on count 3, which was doubled to eight years pursuant to the Three Strikes law. Sentences on counts 2 and 3 were stayed pursuant to section 654. The court also struck defendant's prison prior, ordered defendant to register as a sex offender, and required defendant to pay a $300 sex offender fine, $120 in court operations fees, and a $90 criminal conviction assessment.
Defendant raises six primary issues on appeal. First, he contends there was insufficient evidence to sustain his conviction for human trafficking of a minor because the victim was not a real person or minor. Second, he claims there was insufficient evidence to sustain his conviction for attempted pimping. Third, he argues the court improperly admitted prejudicial evidence that he was pimping and pandering other women. Fourth, he contends the People's expert witness improperly opined defendant was guilty of the charged crimes and usurped the jury's fact-finding function. Fifth, he claims his confrontation and due process rights were violated because he could not effectively cross-examine the People's expert witness. Finally, he argues the court erred by failing to instruct the jury on an essential element of human trafficking of a minor.
We disagree with all of defendant's contentions on appeal and affirm the judgment in full. In doing so, we part company with our colleagues in People v. Shields (2018) 23 Cal.App.5th 1242, 233 Cal.Rptr.3d 701 ( Shields ) and the majority in People v. Moses (2019) 38 Cal.App.5th 757, 251 Cal.Rptr.3d 462, review granted November 26, 2019, S258143 ( Moses ). Section 236.1(c) has two distinct prongs. The statute is violated when a person either (1) causes, induces, or persuades a person who is a minor to engage in a commercial sex act (the Completed Act Prong) or (2) attempts to cause, induce, or persuade a person who is a minor to engage in a commercial sex act (the Attempted Act Prong.) Shields and the majority in Moses held that a violation of the Attempted Act Prong of section 236.1(c) requires the target to be an actual minor, not a fictional minor impersonated by a police officer. We respectfully disagree with the court's reasoning in both cases and hold that a person violates the Attempted Act Prong of section 236.1(c) by engaging in the prohibited conduct whether the target is an actual minor or not.
Happy Medina, an Anaheim police officer, worked as an investigator for the Orange County human trafficking task force and investigated crimes related to human trafficking. As part of his duties, he maintained a Facebook page posing as a fictional 17-year-old female named Jessica Bryant. Jessica's Facebook page suggested she was a prostitute and included posts related to pimping and prostitution.
On May 25, 2015, defendant sent a message to Jessica using a Facebook account. After Jessica responded, defendant replied, "My name is P Famous Da Great." He asked her, "How's your situation?" She responded, "Hoes don't get holiday pay." He then asked her how old she was, and she said 17 years old. Defendant asked when she would turn 18, and she responded, "Not soon enough." He told her he would be 25 years old in the following month.
On May 27, 2015, defendant sent another Facebook message to Jessica. He said, "I'm waiting on you." Jessica responded she had "ten toes on the ground," which was a reference to prostitution. She also asked what defendant wanted from her, and he responded, "Your loyalty, dedication and your trust." Defendant promised to give her the same. Jessica then asked about defendant's "price tag," and he said it was $2,500. At trial, Medina explained this referred to a "choose up fee," which is a fee a prostitute pays to a new pimp to work with him. When Jessica told defendant his fee was too high, he responded he was "hoeless" but "2500 was [his] fee in 2011 when [he] was seven deep, so [he was] not [going to] change it now." She asked defendant how much he expected her to make a night, and he answered, "500 plus." Defendant gave his phone number to her and told her to call him. Medina searched the phone number online and found an advertisement with defendant's phone number on a Web site advertising prostitution services.
On May 29, 2015, defendant contacted Jessica again and said "S.M.M.F.P.F.H." Medina interpreted this to mean "shake my mother fucking P Famous head." Jessica told defendant she was considering working with a different pimp who would take 10 percent of the choose up fee, which was $250. Defendant said he was willing to do the same.
On May 31, 2015, Jessica asked defendant, Defendant responded both but that he prefers the track, which is an area where prostitutes solicit business. Defendant told Jessica to "choose up," "come to [Los Angeles]," and "stay down for his crown" (i.e., give him her loyalty). Defendant called her a "hoe" and said it would just be the two of them until he had the opportunity to "knock another bitch." Jessica asked defendant for a photograph, and he sent a photograph showing him lying on a bed with money on his chest and stomach. He also sent a photograph of him smiling and asked Jessica for a photograph. Medina sent a manipulated photograph of a female and repeated she was 17 years old. Defendant answered,
Over the next few days, Jessica told defendant she had a fight with her mother and had an aunt who was on her death bed. She said she was going to go to San Diego. Defendant said, "Come to me." On June 10, 2015, defendant contacted Jessica and asked where she was. She said she was back home from San Diego, and defendant responded he was still waiting on her and encouraged her to go to Los Angeles. Jessica asked if defendant would help her buy a car because she was only 17 years old. He agreed and said, "Just come down."
Jessica later sent a message to defendant and tried to negotiate a better choose up fee. Defendant said he wanted $500.
After Jessica responded this was not what they had originally discussed, defendant called her a "hoe" and "fake ass bitch." Jessica then told him to "have a nice life" and suggested she had intended to send a $250 choose up fee to defendant. He told her to bring the money to him before he "find[s] [her] and beat[s her] ass." He also said he had "knocked two hoes the night prior" and had "another one planning to come from Oregon soon." Defendant then said she could bring the choose up fee to him in person or send it through PayPal. He explained she could get a PayPal account at a 7-Eleven store and gave specific instructions about how she could get a PayPal card.
On June 13, 2015, defendant contacted Jessica again. At one point, defendant said he did not "have any other hoes at that time and ... wanted [her]." He told Jessica she could send the choose up fee by getting a card at a CVS or Walmart store and sent a photograph of a PayPal card. They eventually agreed Jessica would go to a Walmart store and arrange a wire transfer. During this conversation, Jessica mentioned she had a 16-year-old friend named Kimmie. Defendant responded, "Tell Kimmie to choose up as well." He said he expected both of them to be with him by his birthday and told Jessica to send a $400 choose up fee for both of them.
On June 17, 2015, defendant and Jessica exchanged messages again. Medina then had a female officer call defendant and pretend to be Jessica. They talked about how long it would take Jessica to pay off the choose up fee and how much she could charge for certain sex acts. When Jessica asked how much she could make for a "blow job," defendant said she could make at least $60. She also asked if he would provide the condoms, and defendant agreed. Jessica eventually said she and Kimmie were at a Walmart store where they were arranging to send the choose up fee to defendant. She said she would go to Los Angeles to meet defendant the next day, and defendant gave her instructions on how to take a bus to Union Station where he would pick her up. Jessica reminded defendant she was 17 years old and Kimmie was 16 years old. Defendant said he "[did not] care about none of that." After the call, Medina wired the money to defendant and asked if defendant received the money. Although defendant suggested he received the money, he was arrested the next day before he actually picked up the money.
At trial, the court admitted three categories of evidence at issue in this appeal. First, the court admitted defendant's text messages with third parties. Medina testified about each of these conversations. In one conversation, defendant encouraged a woman in Oregon to come to Los Angeles and work for him. He told her his choose up fee was $2,500 and said she could make $1,000 a night in Las Vegas. He also told her he had been pimping for five years and had worked in more than seven states.
In another conversation, defendant communicated with a woman named "Lele," a prostitute who formerly worked for defendant. Defendant told Lele to "[g]et a fee and come home." Defendant also told her he had...
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