People v. Guess

• Decision Date: 24 April 2007
• Docket Number: No. H029808.,H029808.
• Citation: People v. Guess, 59 Cal.Rptr.3d 80, 150 Cal.App.4th 148 (Cal. App. 2007)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Cedric GUESS, Defendant and Appellant.

59 Cal.Rptr.3d 80

150 Cal.App.4th 148

The PEOPLE, Plaintiff and Respondent, v. Michael Cedric GUESS, Defendant and Appellant.

No. H029808.

Court of Appeal, Sixth District.

April 24, 2007.

Jeffrey A. Glick, under appointment by the Court of Appeal for Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Eric D. Share, Supervising Deputy Attorney General, Violet M. Lee, Deputy Attorney General, for Plaintiff and Respondent.

RUSHING, P.J.

Introduction

Defendant Michael Cedric Guess was tried on the following charges: pimping Emily,¹ a prostitute under the age of 16 (count 1; Pen.Code, § 266h, subd. (b)(2)²); pimping Dra., a prostitute under the age of 16 (count 2); aiding and abetting a forcible lewd act on Dra. (count 3; § 288, subd. (b)(1)), and possessing cocaine (count 4; Health & Saf.Code, § 11350, subd. (a).) In the jury's absence, defendant admitted having served a prior prison term for possessing cocaine for sale. (§ 667.5, subd. (b).) When the jury, after deliberating, could not agree on count 1, the court declared a mistrial and later dismissed the charge on the prosecutor's motion. Defendant was acquitted of all other charges, but he was convicted of the lesser-included offenses of attempting to pimp Dra. (§ 664) and abetting a lewd act on Dra. without force or duress.

The court sentenced defendant to prison for nine years, consisting of the upper term of eight years for aiding and abetting a lewd act, enhanced by one year due to defendant's prison prior. The court also imposed the upper term for attempted pimping, and stayed it pursuant to section 654.³

On appeal, defendant contends that he was prejudiced by the trial court's errors in denying his motion to continue the preliminary examination, admitting into evidence Dra.'s preliminary examination testimony and police interviews, and imposing the upper term sentence based on facts not found by the jury. For the reasons stated below, we agree with the last contention and will reverse the judgment for resentencing.

TRIAL EVIDENCE

On Friday, March 18, 2005, San Jose Police Officers Mario Brasil and Rick Galea conducted undercover surveillance in the parking lot of a San Jose shopping center known for prostitution. Automobiles were circling in the lot and some female pedestrians were having brief conversations with the occupants. About 10:00 p.m., the officers followed one of these females in their car. The female got into the right rear seat of defendant's car, which was parked in the lot. Also inside the car were defendant in the driver's seat, Emily in the front passenger's seat, and Dra. sitting behind defendant. In 45 minutes of surveillance the officers had not seen Emily or Dra. outside of the car, but for some of that time they watched and cited another female for prostitution. The officers got out of their car and spoke with the three girls, both separately and together.

Defendant was wearing a white hat, white pants, a black sweatshirt, and he had a yellow ring on a yellow chain. He had a wallet but no cash. None of the girls had cash either.

A search of defendant's car revealed over 50 pieces of paper listing "Lil Daddy" and a telephone number in the glove compartment, a cell phone with "Lil Daddy" on the screen, and a baggie containing a rock of .23 grams of cocaine under the driver's seat. A blood test of defendant was negative for any drugs.

Defendant was arrested and transported to the police station. Officer Brasil interviewed him after defendant waived his rights. Defendant stated the following.

He had driven down from Oakland and was waiting for his aunt when the girls came to his car. When asked if he was pimping the girls, he said he is or was a coke dealer. He has a 14-year-old daughter, so he would not pimp a girl that age. The name tags were for handing to girls, though he is married. Defendant denied that the cocaine was his. He had retired from that life. He does not use drugs.

Emily refused to testify at trial, even under a grant of use immunity.

Dra.'s First Interview

Dra. was a runaway from her mother and from juvenile hall in Sacramento. She had cut off an ankle bracelet for electronic monitoring.

On March 18, 2005, Officer Brasil spoke with Dra. in his car and recorded part of their conversation. The recording was in evidence at trial.⁴ He told her she would not get in trouble if she cooperated.

Dra. initially gave Brasil a false name, birth date, and high school. She also called Emily "Chloe." Officer Brasil did not believe she was as old as 17, as she claimed.

Dra. told Officer Brasil the following. She was out "ho'ing" (whoring). It was her second day. Emily had gotten her started. She was working with defendant, whom she knew as "Mike." She did not consider him her pimp. The prior night, Thursday, she had given him $50, although he did not ask for anything. Thursday they were out until midnight. She made $60. She initially said she had one date that night. She first said it was $40 for oral sex, then said it was sex when Officer Brasil questioned her. She made another $20 by showing her breasts to another man. She spent Thursday night at defendant's place in Oakland. They slept in different rooms and did not have sex. She had not made any money on Friday night.

Dra.'s Second Interview

On April 1, 2005, Dra. was interviewed for over an hour in an interview room at the Sacramento Juvenile Hall by Elliott Beard, a law enforcement officer. It was against the hall policy for Officer Beard to bring in a tape recorder, so he took notes. Dra. was quiet and shy and did not maintain eye contact with Officer Beard. She told him the following.

She left Sacramento because she had removed an ankle monitor. A friend took her to Oakland. While she was walking on the street, a car drove up containing Emily and Mike. Dra. knew Emily from Sacramento. She got into the car. Defendant said "let's go make some money." He asked Dra. to call him "Lil Daddy." He took them out and bought them some clothes. She got a short skirt and a tight shirt.

Defendant drove Emily and Dra. to San Jose. Emily left the car and came back later with $200 that she said was for having sex with men.

Dra. cried because she did not want to get out of the car and do the same thing. She thought defendant would hit her. She did get out of the car and have sex with one man for $40. She returned to defendant's car and gave him the money. She kissed his ring as he requested. When Emily returned to the car, they went to get something to eat and returned to Oakland. Emily gave defendant another $60.

In Oakland, they stayed at defendant's house. In his house were other girls, who were selling drugs and "ho'ing."

Officer Beard was initially confused about whether Dra. was describing one night or two. She said that they engaged in the same activity in San Jose the second night. Defendant gave her four condoms and told her to charge $80 for sex and $60 for "sucking ... dick." Dra. tried unsuccessfully to get a "date." She went back to the car that night when she saw the police. Emily and defendant were in the car. Another prostitute came up to the car.

At one point defendant yelled at Emily and raised his hand as if to strike her. He did not strike Emily or Dra. Officer Beard believed that this occurred on the second night.

Dra. told Officer Beard that a man paid her $20 to look at her breasts. He did not include this statement in his report.

DRA'S PRELIMINARY EXAMINATION

The following parts of Dra.'s preliminary examination testimony were read to the jury.

Dra. turned 13 in January 2005. Her home is in Sacramento. She was in juvenile hall because she ran away from home.

On Thursday, March 17, 2005, she came to Oakland with a friend. As she was walking down a street, a car drove by and hailed her. Inside were Emily and defendant, who introduced himself as "Mike" or "Lil Daddy." Dra. knew Emily from Sacramento as a prostitute.

Dra. got into the car to talk with Emily and because she had nowhere else to go. She had no money. Defendant offered them some food and drove them to a San Jose shopping center, where he bought them clothes. He. did not tell her what clothes to get. Emily told her to get some heels, a skirt, and a t-shirt. He took them to "Auntie's" house where they changed. He brought them back to the shopping center in the early evening.

At the shopping center, Emily got out of defendant's car at his suggestion. After a while she came back with some money. Dra. could not recall the amount. Defendant was wearing a ring. He told Emily to "get [her] lips wet." She kissed the ring and handed defendant the money. He said "you all go on...."

Emily and Dra. got out of his car. Defendant spoke to her on Emily's cell phone. He told her to ask people driving by if they wanted "panucha," which Emily said meant "vagina." Dra. went back to defendant's car. He said, "there's a whole bunch of tricks out there, go out there." Dra. did not know what "tricks" meant. She was afraid he might hit her, so she did. He did not hit her or Emily, but earlier that day he had yelled at Emily and raised his hand to her.

Dra. had never done anything like this before. She stood by a telephone booth as defendant had instructed. Emily hailed a car and directed it to Dra. The driver asked her for "panucha." On Emily's cell phone, defendant told her, "you better get him." Dra. got into the car and had intercourse with the man for $80. She used a condom that Emily had given her.

Dra. brought the money back to defendant in his car. At his request, she kissed his ring and gave him the money. Dra. at first said that she tried to get more money that night as defendant told her, but she failed. Men approached her, but she said she was not a prostitute.

Dra. later recalled she had made another $20 the...