People v. N.C. (In re N.C.)

• Citation: 4 Cal.App.5th 1235,209 Cal.Rptr.3d 357
• Decision Date: 02 November 2016
• Docket Number: A146637
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE N.C., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. N.C., Defendant and Appellant.

4 Cal.App.5th 1235

209 Cal.Rptr.3d 357

IN RE N.C., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent,

v.N.C., Defendant and Appellant.

A146637

Court of Appeal, First District, Division 2, California.

Filed November 2, 2016

Lynette G. Moore, Acton, Under Appointment by the Second District Court of Appeal, for Appellant.

Kamala D. Harris, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney, General, Donna M. Provenzano, Supervising Deputy Attorney General, Christina Vom Saal, Deputy Attorney General, for Respondent.

Kline

, P.J.

The Californians Against Sexual Exploitation Act (CASE Act), enacted by the voters of the state as Proposition 35 at the general election on November 6, 2012,¹ increased penalties for human trafficking, authorized the collection of fines to be used for victim services and law enforcement, required persons convicted of trafficking to register as sex offenders, and required such offenders to provide information regarding Internet access and identities they use in online activities. The CASE Act also added section 1161 to the Evidence Code

(section 1161 ). Subdivision (a) of that statute, which as we later explain, was amended by the Legislature in 2013,² now declares that evidence that a victim of human trafficking “has engaged in any commercial sexual act as a result of being a victim of human trafficking is inadmissible to prove the victim's criminal liability for the commercial sexual act.”

Appellant, a 17–year–old victim of human trafficking, was charged with prostitution under Penal Code section 647, subdivision (b)

, which provides that every person who “solicits or who agrees to engage in or who engages in any act of prostitution [is guilty of disorderly conduct]. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act.”³

At the commencement of the jurisdictional hearing, appellant moved under section 1161

to exclude all evidence sought to be introduced by the district attorney to show that she solicited acts of prostitution in violation of Penal Code section 647, subdivision (b). The district attorney opposed the motion on the ground that evidence is inadmissible under section 1161 only when offered to prove that a victim of human trafficking is criminally liable for a “commercial sexual act,” and the offense described by subdivision (b) of Penal Code section 647 is not such an act. According to the district attorney, the phrase “commercial sexual act” in section 1161 is defined by section 236.1, subdivision (h)(2) of the Penal Code, which states that a “commercial sex act” means “sexual conduct on account of which anything of value is given or received by any person.” As the district attorney emphasized, Penal Code section 647, subdivision (b) does not require, and appellant was not given and did not receive, anything of value as a result of her commission of that offense.

Accepting that argument, and also because it believed section 1161

inapplicable in juvenile proceedings, the trial court denied appellant's motion to exclude.

Finding that section 1161

does apply in juvenile proceedings, and that the trial court's acceptance of the prosecutor's interpretation of that statute would virtually wipe out a significant protection afforded victims of human trafficking by the CASE Act, we shall reverse the judgment.

FACTS AND PROCEEDINGS BELOW

On May 28, 2015,⁴ the Los Angeles County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602

) in case No. PJ51576A (Petition A), alleging that on May 12, appellant, age 17, committed misdemeanor disorderly conduct by soliciting or agreeing to engage in prostitution in violation of Penal Code section 647, subdivision (b)

, and was therefore subject to the jurisdiction of the juvenile court pursuant to section 602 of the Welfare and Institutions Code. That same day, the district attorney filed a second petition in case No. PJ51576B (Petition B), alleging that appellant committed the same offense on May 27.⁵

On June 10, appellant moved under section 1161

to exclude all evidence the district attorney planned to introduce to prove she engaged in commercial sexual acts, because she was a “victim of human trafficking,” who had been coerced into performing those acts by a pimp who was a human trafficker within the meaning of Penal Code section 236.1, subdivision (c), which defines and criminalizes sex trafficking.⁶ The motion also claimed that, since the evidence sought to be excluded consisted solely of the testimony of two undercover police officers regarding the alleged acts of commercial sex, the petitions should be dismissed after the exclusion of the officers' testimony.

Before the presentation of evidence, the district attorney argued that the exclusion of evidence authorized by section 1161

did not apply to appellant because it only applies to evidence offered to prove the commission of a “commercial sexual act,” and neither petition alleged she had engaged in any such act. The acts with which appellant was charged, the district attorney emphasized, were not committed in return for “anything of value given or received by any person,” as required by the definition of “commercial sex act” set forth in Penal Code section 236.1, subdivision (h)(2), which, like Evidence Code section 1161, is also a part of the CASE Act. As an offer of proof, the district attorney represented that neither of the officers who would testify “are going to testify that any sexual act was ever committed.”

The trial court elected to defer ruling on that issue, and proceed with an evidentiary hearing, because it felt it appropriate to “make a record” with respect to two threshold legal questions: (1) whether section 1161

applies only in criminal cases and not in juvenile proceedings,⁷ and (2) whether, even if it does apply in juvenile proceedings, it is inapplicable in this case because, as the district attorney claimed, no evidence shows that appellant engaged in a “commercial sex act” as defined in Penal Code section 236.1, subdivision (h)(2)

, as meaning “sexual conduct on account of which anything of value is given or received by any person.” The trial court explained that no matter which way it ruled on these issues it was confident there would be an appeal and, “given the lack of clear direction at the moment,” it was important “that we develop as full a record as possible. So ... my inclination is to let the defense proceed with whatever showing it wants to make, and I'll simply rule at some point after we put this on.”

The court heard the testimony of the two undercover police officers and also that of Nadeah Vali, an expert on human trafficking appointed by the court.

Undercover Los Angeles Police Officer Peter Ruiz, who testified with respect to the facts alleged in Petition A, stated that on May 12, while a member of a task force monitoring prostitution near the intersection of Sepulveda Boulevard and Nordhoff Street “known for prostitution,” he approached appellant, who appeared to be in her early 20's, she told him to meet her around the corner, which he did, and she then entered his unmarked car. After a discussion in which appellant and Ruiz discussed various types of sexual acts and the price Ruiz would have to pay for each act or combination of acts, appellant agreed to engage in “sex and a blowjob” for $60. Appellant told Officer Ruiz she had a room in a hotel at Sepulveda and Tupper Street and told him to drive there. When they arrived at the hotel's parking lot, appellant was arrested by other members of the task force. The police contacted appellant's mother, who lived in Antioch in Contra Costa County, and appellant was released to her the day after she was arrested.

Undercover Los Angeles Police Officer Marcos Gutierrez, a member of an undercover task force monitoring prostitution near the intersection of Sepulveda and Wyandotte Streets in Los Angeles, testified regarding the allegations of Petition B. He stated that on May 27, while he was posing as a “John,” appellant looked in his direction, walked over to the open window on the passenger side of his unmarked car, and stated that “she was only doing blow jobs” that night. He said “O.K.,” asked how much that would cost, and was told $40. Gutierrez drove the two of them to a location he and other officers had previously decided upon, and appellant was immediately arrested by other members of the task force. After her arrest, appellant refused to say whether she had a pimp or to otherwise cooperate. After she refused to telephone her mother, appellant was detained in juvenile hall.

Nadeah Vali, a court appointed expert on human and sexual trafficking, was asked to assess whether appellant was a “victim of human trafficking” within the meaning of section 1161

. After interviewing appellant and familiarizing herself with police reports regarding appellant's present and prior arrests, and the probation reports relating to her detention and pre-plea hearings, Vali concluded that appellant had been exploited by two pimps, one known only as Victor, who had previously coerced her into engaging in prostitution in Oakland, and another known only as Michael, who later exploited her that same way in Los Angeles at the time she was arrested by Officers Ruiz and Gutierrez. In Vali's opinion, appellant “exhibit[ed] the indicators of being a victim of human trafficking,” in that she exhibited ...