People v. Towner

• Decision Date: 16 February 2023
• Docket Number: C095094
• Parties: THE PEOPLE, Plaintiff and Respondent, v. DAVID TOWNER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,
v.
DAVID TOWNER, Defendant and Appellant.

C095094

California Court of Appeals, Third District, Sacramento

February 16, 2023

NOT TO BE PUBLISHED

Super. Ct. No. 20FE004466

MAURO, J.

A jury convicted defendant David Towner of human trafficking, pimping, pandering, attempted human trafficking of a minor, and witness dissuasion. The trial court sentenced him to an aggregate term of 28 years in prison.

Defendant now contends (1) the trial court should have dismissed counts one through three (charging human trafficking, pimping, pandering) because they alleged the same conduct charged in another case resolved by plea; (2) the trial court should have instructed the jury that to convict on count seven (attempted human trafficking of a minor) the People had to prove that defendant intended to induce a minor to engage in the prohibited act; (3) insufficient evidence supported the convictions on counts eight and nine (for dissuasion of witnesses); (4) defendant's trial counsel was ineffective in failing to object to a detective's opinions about defendant's text messages; and (5) the matter must be remanded for resentencing under Assembly Bill No. 518 (2021-2022 Reg. Sess.) and Senate Bill No. 567 (2021-2022 Reg. Sess.).

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We conclude (1) defendant has not established that the prosecution of counts one through three was precluded in this case; (2) on the count seven charge of attempted human trafficking of a minor, the trial court should have instructed on the applicable elements, and the error was not harmless; (3) substantial evidence supports the convictions for witness dissuasion; (4) defendant has not shown ineffective assistance; and (5) we will remand the case for resentencing based on current law. We will reverse defendant's count seven conviction for attempted human trafficking of a minor; and we will vacate the sentences on counts one (human trafficking), two (pimping), and three (pandering) and remand for resentencing on those counts consistent with current law. We will otherwise affirm the judgment.

BACKGROUND

Sacramento Police Detective Elizabeth Strauss contacted 16-year-old I.D. after investigating an ad for prostitution. A search of I.D.'s cell phone showed a text message from defendant that read, "Let's get an Incall and Take New Pics . . . i can help assist u &have alot of good call online." Defendant's cell phones were seized.

Detective Strauss contacted T.D., who was 35 years old, based on defendant's cell phone data, and T.D. testified at trial. Defendant sent clients to T.D. and T.D. gave defendant half of what she earned from those dates. Detective Strauss testified about text messages from defendant to T.D. during the period December 3, 2019 to January 1, 2020, including messages about finding dates, negotiating prices for dates, and taking photographs for ads.

In addition, Detective Strauss interviewed R.D., who was 25 years old and who also testified at trial. R.D. met defendant in person after chatting with him on a dating app. Defendant told R.D. she was going to work for him. He said there would be trouble if R.D. did not comply. Defendant accessed a website R.D. had used to post ads for prostitution and reposted an ad, using his cell phone number for client calls and text messages. An ad was posted for R.D. on April 18, 2019, using a photograph defendant

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took. Defendant arranged dates for R.D. and took the money R.D. earned. In addition, defendant had sex with R.D. without her consent. At some point, defendant took R.D. to Santa Cruz, where she was able to get away from him.

Detective Strauss testified about text messages sent from defendant's cell phone to different sex workers. A number of text messages appeared to be for the purpose of recruiting sex workers. In another series of text messages, defendant made threats in connection with money a sex worker allegedly owed him.

While in jail, defendant made two calls to dissuade T.D. and I.D. from cooperating with the authorities. We provide more detail regarding those calls in the Discussion as relevant to contentions on appeal.

The jury convicted defendant of human trafficking involving R.D. (Pen. Code, § 236.1, subd. (b) -- count one),^[1] pimping involving R.D. (§ 266h, subd. (a) - count two), pandering involving R.D. (§ 266i, subd. (a)(1) - count three), pimping involving T.D. (§ 266h, subd. (a) - count five), pandering involving T.D. (§ 266i, subd. (a)(1) - count six), attempted human trafficking involving minor I.D. (§ 236.1, subd. (c)(1) -- count seven), witness dissuasion of T.D. (§ 136.1, subd. (b)(2) -- count eight), and witness dissuasion of I.D. (§ 136.1, subd. (b)(2) -- count nine). The jury could not reach a verdict on the count four charge of forcible rape of R.D. (§ 261, subd. (a)(2)) and that count was dismissed. The trial court sentenced defendant to an aggregate 28 years in prison.

DISCUSSION

I

Defendant contends the trial court should have dismissed counts one through three (charging human trafficking, pimping, and pandering) because they alleged the same conduct charged in another case resolved by plea. Specifically, he claims he was

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prosecuted in the instant case (the Sacramento case) for the same conduct that was the basis for Santa Cruz County Superior Court case No. 19CR02785 (the Santa Cruz case).

A

Defendant presented the following facts in a motion to dismiss. Santa Cruz police officers arrested defendant following a domestic violence report. R.D. told officers defendant had forced her to work as a prostitute and raped her in Sacramento and Santa Cruz. The Santa Cruz County District Attorney charged defendant with pimping (§ 266h, subd. (a)), pandering (§ 266i, subd. (a)(1)), human trafficking (§ 236.1, subd. (a)), forcible rape (§ 261, subd. (a)(2)), and injuring a cohabitant (§ 273.5, subd. (a)). The pimping allegedly occurred on or about April 23, 2019. The conduct underlying the other counts allegedly occurred between January 1 and May 1, 2019. After defendant pleaded no contest to injuring a cohabitant, the other counts were dismissed and the trial court placed defendant on probation. The People subsequently charged defendant in the Sacramento case. Counts one through three of the information in the Sacramento case alleged that defendant committed human trafficking, pimping and pandering in relation to R.D. between April 18 and 21, 2019.

Defendant's motion to dismiss argued the following: the crimes charged in the Sacramento and Santa Cruz cases arose from a single course of conduct in both counties against one victim; Santa Cruz prosecutors knew about the alleged acts in Sacramento and charged defendant for those acts; defendant was convicted and sentenced in the Santa Cruz case; Sacramento County detectives learned about the Santa Cruz case when they interviewed R.D.; and defendant was charged with the same crimes in the Sacramento and Santa Cruz cases. Based on the above, defendant argued that counts one through three in the Sacramento case should be dismissed pursuant to Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett) and section 654.

The People opposed the motion. They argued that the Sacramento case was not barred because the two prosecuting agencies had no knowledge of the other's actions;

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therefore, Sacramento County had no meaningful opportunity to prosecute defendant before he entered a plea in the Santa Cruz case; evidence that would be used in the Sacramento case was not part of the Santa Cruz case or available at the time of the earlier prosecution; and defendant was not convicted of pimping, pandering or human trafficking R.D. in the Santa Cruz case.

The trial court denied defendant's motion to dismiss. It said Kellett did not apply because the Santa Cruz prosecutor filed charges without consulting Sacramento County; Sacramento County independently investigated and brought charges against defendant; and defendant never pleaded to pimping, pandering or human trafficking as to R.D.

B

Section 654, subdivision (a) contains a multiple punishment and a multiple prosecution bar. The statute provides, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."^[2] (§ 654, subd. (a).) Here, we consider the rule against multiple prosecutions, which applies when conduct punishable in different ways by different laws is prosecuted under a particular law but there was an acquittal or conviction and sentence for the same conduct under another law. (Ibid.) We review de novo whether section 654 applies. (People v. Valli (2010) 187 Cal.App.4th 786, 794.)

Kellett is the leading case on section 654's bar against multiple prosecutions. In that case, after the defendant stood on a public sidewalk with a pistol in his hand, the People charged the defendant in municipal court with misdemeanor exhibiting a firearm

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in a threatening manner. (Kellett, supra, 63 Cal.2d at p. 824.) Following a preliminary hearing, the People charged defendant, in a separate case in superior court, with felony possession of a concealable weapon by a felon. (Ibid.) The defendant pleaded guilty to, and was sentenced on, the misdemeanor. (Ibid.) He then moved to dismiss the superior court case pursuant to section 654 on the ground that the municipal and superior court cases arose from a single act. (Ibid.) The trial court denied the motion (ibid.), but the Supreme Court issued a writ of prohibition barring trial in the superior court because the same conduct played a significant part in more than one offense and the initial proceeding culminated in a conviction and sentence. (Kellett, at pp. 824, 827, 829.)

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