People v. Thompson
| Decision Date | 24 October 2016 |
| Docket Number | G050905 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. DAMARIS MARKYSE THOMPSON, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINIONAppeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana Cohen Butler and Laura Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
* * * A jury convicted defendant and appellant Damaris Markyse Thompson of pimping (Penal Code, § 266h, subd. (a))1, and the trial court sentenced him to the middle term of four years. On appeal, he contends the prosecution failed to establish the essential element that he derived support or maintenance, in whole or in part, from the earnings of a known prostitute because the prosecution failed to show the money he received from a prostitute exceeded the amount he spent to provide her with food, clothing, and lodging. Thompson also contends the trial court prejudicially erred by failing to sua sponte instruct the jury on the purported lesser included offense of aiding a prostitute by collecting or receiving proceeds of prostitution activities (§ 653.23, subd. (a)(2)). According to Thompson, the evidence was weak that he derived support or maintenance from a prostitute's earnings, as opposed to merely receiving those earnings, and it is reasonably probable the jury would have convicted him of the lesser offense if it had been properly instructed.
We affirm. The support or maintenance element of pimping does not require the prosecution to establish the defendant expended the earnings he or she received from a known prostitute for the defendant's support or maintenance, and the amount of money the defendant received from prostitution activities is irrelevant. The prosecution need only show the defendant received at least some of a known prostitute's earnings and those earnings were available for the defendant to use for support or maintenance. Contrary to Thompson's contention, the crime of pimping is not limited only to those pimps who operate at a profit. As explained below, substantial undisputed evidence establishes Thompson directed a woman to work as a prostitute and he took everything she earned from her acts of prostitution.
Moreover, assuming arguendo that aiding a prostitute is a lesser included offense on which the trial court was required to instruct the jury, the court's failure to doso was harmless error. Thompson failed to establish it is reasonably probable the jury would have convicted him of aiding a prostitute if it had been instructed on that lesser offense. Thompson's contention the evidence on the support or maintenance element was weak is based on the erroneous assumption the prosecution was required to show he received more money from the prostitute's earning than he spent for her food, clothing, and lodging. As stated above, the prosecution was not required to make that showing and substantial undisputed evidence establishes Thompson derived at least some support or maintenance from the earnings of a known prostitute. On the record presented, it is not reasonably probable the jury would have convicted him of aiding a prostitute instead of pimping.
On the morning of November 10 or 11, 2011, Brittany was walking to her sister's house in Hemet when Thompson drove by. The two made eye contact and Brittany walked up to his vehicle as Thompson pulled to the side of the road. They began talking and Brittany got into Thompson's vehicle. She explained she was looking to get out of Hemet, but she had no money and no permanent place to live. She also told him she had two children that lived with her mother and she would like to regain custody of them.
Thompson told Brittany he could help her. He explained he was driving to Los Angeles, but that he would be coming back to Hemet later. Brittany decided to go with Thompson and the two continued to talk. Thompson drove Brittany to a nearby hotel where she picked up a laundry basket full of her clothes. He also took her to a beauty supply store where he bought Brittany a wig before heading to Los Angeles. At some point, Thompson also bought Brittany some clothes.
Thompson first took Brittany to Long Beach Boulevard in Los Angeles County where he "directed" her to work as a prostitute. He told her to charge $60 for oral sex and $90 for intercourse. Brittany agreed and performed several acts of prostitution at Thompson's direction. She gave him all of the money she received because he told her the money she made belonged to him.
Next, Thompson drove Brittany to a hotel on Beach Boulevard in Buena Park. He got a room for the two of them because Brittany did not have her identification with her. When the two got to the room, they had intercourse and afterward Thompson told Brittany, "'I own you now.'" He then told her to go down to Beach Boulevard and to make him some money by performing acts of prostitution, which she did.
Thompson provided Brittany with condoms and a cellphone that enabled him to track her location. She would text Thompson the number "9" when she picked up a "date"—that is, a customer with whom she would perform sex acts—and then she would text him the word "done" when the date was over. Thompson provided her with more condoms when she ran out and took charge of all the money she earned. He decided when she worked, how long she worked, and where she worked. He brought her food when she was hungry because she had no money. Thompson required Brittany to refer to him as "'Daddy.'" Brittany prostituted herself in this manner for a few days without getting much sleep or food.
At one point, Brittany texted Thompson stating she wanted to return to Hemet, and he responded by telling her to come back to the hotel room. When she arrived at the room, the two began arguing and Thompson forcefully put his hands around Brittany's neck, but he did not choke her. Thompson told her, "'Like I said, I own you; so there is really nothing you can say about it,'" and "'I just want you to go out there and go get my money.'" Thompson also told Brittany, " " Frightened, Brittany followed Thompson's orders.
On the morning of November 14, 2011, Brittany was walking on Beach Boulevard in Anaheim wearing a sleeveless short red dress and high heels, and waving at men as they drove by. Officer Steven Craig of the Anaheim Police Department observed Brittany and suspected she may be engaging in prostitution activities because prostitution was common in that area and her clothes were not appropriate for the weather conditions. Craig stopped Brittany and began talking to her. She admitted she was working as a prostitute and she was staying with a man called "Bad Luck" or at a nearby hotel. She told Craig she would give "Bad Luck" or $100 per week. As Brittany spoke with Craig she saw Thompson drive by and she became frightened. Craig eventually arrested Brittany.
After her arrest, Brittany spoke with Investigator Michael Cunha. She again acknowledged she was working as a prostitute and identified "Bad Luck" or as her pimp. She explained how she would text Thompson when she picked up a date and when the date was over, and he would bring her more condoms when she needed them and take the money she received. Brittany told Cunha she had 44 dates in one night, three for intercourse and the rest for oral sex. He told her that would be more than $2,600 she received at the rates she identified.
During their interview, Cunha downloaded the messages from Brittany's cellphone. The phone, however, only had messages starting on November 13, 2011—the day before her arrest—because Brittany had lost another phone Thompson previously gave her when one of her dates tried to grab her as she exited his car. These messages showed Brittany had texted Thompson the number "9" six times between 8:44 p.m. on November 13 and 2:28 a.m. on November 14, suggesting she had at least six dates during that time period.
Cunha began texting Thompson using Brittany's cellphone and also asked Brittany to place three recorded phone calls to Thompson. Posing as Brittany, Cunha arranged a meeting with Thompson, and arrested him when he arrived for the meeting.In Thompson's car, the police found the laundry basket with Brittany's clothes, her purse, and a cellphone box with a serial number that matched the serial number on the cellphone Brittany had.
The prosecution charged Thompson with one felony count of pimping and one felony count of pandering (§ 266i, subd. (a)(1)).2 At trial, Brittany testified to the foregoing facts, except she testified she could not remember telling Cunha she had 44 dates in one night, explaining she gave him only an estimate because she could not remember how many dates she had. She did not remember a lot of details about her arrest and could not count the number of dates she had because she had not slept or eaten very much during the three days leading up to her arrest.3 Cunha, however, testified in detail about Brittany telling him she had 44 dates.
Following closing arguments, the trial court instructed the jury on the crimes of pimping, attempted pimping, pandering, and attempted pandering. The parties did not request the...
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