People v. Cooper

THE PEOPLE, Plaintiff and Respondent, v. DOMONIC ANTONIO COOPER, Defendant and Appellant.

D073129

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

February 26, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. FSB1300804)

APPEAL from a judgment of the Superior Court of San Bernardino County, R. Glenn Yabuno, Judge. Affirmed as modified.

Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Daniel J. Hilton, and Eric Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Domonic Cooper of pimping a minor over the age of 16 (Pen. Code,¹ § 266h, subd. (b)) (count 1); pandering by procuring a minor over the age of 16 (§ 266i, subd. (b)(1)) (count 2); unlawful sexual intercourse (§ 261.5, subd. (c)) (count 3); and human trafficking of a minor for a sex act (§ 236.1, subd. (c)(1)) (count 4). The jury found that Cooper committed counts 1, 2, and 4 for the benefit of, at the direction of, or in association with a criminal street gang with specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22, subdivision (b)(1)(A). The jury also found Cooper's commission of count 4 involved the use of force, fear, fraud, deceit, violence, duress, menace, or threat of unlawful injury to the victim or another person within the meaning of section 236.1, subdivision (c)(2). In a bifurcated proceeding, the court found Cooper had a prior strike conviction (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and three prior prison term convictions (§ 667.5, subd. (b)).

The court sentenced Cooper to a total prison term of eight years and four months followed by a term of 30 years to life, calculated as follows: On count 4, which the court deemed the principal count, the court imposed a term of 15 years to life, doubled to 30 years for the prior strike, plus four years for the gang enhancement and three years for the three prison prior enhancements. On count 3, the court imposed a consecutive term of eight months, doubled to 16 months for the prior strike. The court imposed prison terms of 16 years on counts 1 and 2, but stayed punishment on those counts under section 654.

Cooper raises the following arguments on appeal: (1) there was insufficient evidence to support the gang enhancements; (2) the prosecution's gang expert relied on case-specific, testimonial hearsay to prove the gang enhancements, in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez); and (3) the trial court erred by imposing a term of years under section 186.22 rather than a minimum parole date for the gang enhancement on count 4. The People concede the sentencing error. We modify the judgment in light of the conceded sentencing error, and otherwise affirm.

I.FACTUAL AND PROCEDURAL BACKGROUND

In February 2013, Cooper first contacted Jane Doe, who was 16 years old and had learning and emotional disabilities. Doe and her younger sister were walking to a store in San Bernardino when Cooper pulled over his car, initiated a conversation with Doe, and exchanged phone numbers with her. After Doe and her sister left the store, Doe called Cooper "to see what he was doing." After a short phone conversation, Cooper picked up Doe and her sister and drove them home. Doe went inside the house with her sister while Cooper waited outside in his car. Doe shortly went back outside and got into Cooper's car because "he looked like he was mean" and Doe was afraid.

Cooper then drove Doe to a clothing store and bought her a mini dress and underwear that he picked out. After Doe changed into the new clothes, Cooper drove her to his apartment in Los Angeles and had sex with her. That night he talked to her about prostitution. He told her she was "going to get out there," and she knew that "he was talking about . . . prostituting."

The next day, Cooper drove Doe back to San Bernardino and dropped her off on Baseline Avenue, San Bernardino's main "track" or "blade," which is a street or area where prostitution is conducted. Doe was wearing the mini dress that Cooper bought the previous day. Cooper gave her condoms and told her to charge $20 for a "hand job," $40 for "head," and $100 for sex, and not to talk to other prostitutes. Doe earned about $100 performing sex acts that night and gave the money to Cooper. Cooper then took Doe back to his apartment in Los Angeles and had sex with her.

The next day, Cooper dropped off Doe in an area of Los Angeles to perform prostitution while he attended school. Doe had sex that day with a person who picked her up and drove her to a motel. When Cooper got out of school, Doe gave him the money she had been paid for the sex. Cooper then drove her back to San Bernardino, where she continued to work as a prostitute on Baseline Avenue.

One night, Doe saw Cooper get out of his car and kick "[a]n old prostitute that used to work for him." Cooper said to the woman he kicked, "Bitch, you owe me some money." Another night, Cooper saw Doe sitting down near a liquor store on Baseline. When Cooper approached Doe and asked her why she was sitting there, Doe "got smart with him" and mumbled something under her breath. Cooper slapped her and later hit her twice in his car for sitting down when she was supposed to be working as a prostitute. Doe was afraid of Cooper because he told her he was a member of the gang PPHG (Pimps, Players, Hustlers, and Gangsters), and he threatened to kill her mother if Doe tried to leave.

On February 26, 2013, Doe attracted the attention of police officers driving down Baseline Avenue because she was wearing a fishnet dress with nothing underneath. One of the officers testified that "[Doe] really stood out. She looked like she was naked walking down the street." Doe had been wearing leggings and a bra under the dress, but Cooper ordered her to take them off because she was not attracting enough attention. Doe complied because she was afraid of Cooper. The officers parked across the street from the intersection where Doe was located and observed her waving at passing vehicles. A vehicle eventually pulled over and Doe entered it after a brief conversation with the driver. Shortly after the car drove off, police stopped it and took Doe to the police station.

When Doe was initially interviewed at the police station, she falsely told the detective who interviewed her that she learned prostitution from someone named Melissa, whom she had met at the continuation school she attended. Doe testified that she lied because she was scared. She was in possession of a cell phone and a condom that was the same brand, color, and lot number of several condoms that police later recovered from Cooper's car. After the police took possession of Doe's cell phone, the phone received numerous calls from Cooper's phone number that was identified in Doe's phone as belonging to "Chase." There had been 153 calls between Cooper's phone and Doe's phone, and a text message from Doe to Cooper stating, "I'm doing everything I can. I'm waving at them. They wave back, but keep on going."

Doe agreed to make a series of "pretext calls" to Cooper on her cell phone in the presence of police officers. When Cooper answered the first pretext call, he soundedangry and asked Doe where she was. She told him the police had arrested her and let her go. Cooper responded, "Bitch, you with the police. I don't give a fuck about no police, ho. You tell them I'm your husband. You ain't never gave me no money. I ain't no pimp. I'm your husband, bitch. You be a good ho, bitch[.]"

During a later pretext call, Doe asked Cooper to pick her up at a store in downtown San Bernardino. Police set up surveillance points around that location and saw Cooper's vehicle pass through the store's parking lot at a high rate of speed. After Cooper exited the lot, the police pulled him over and arrested him. Cooper told the police his name used to be "Insane" from the gang PPHG, but now he goes by "Big Sane" because he makes wise decisions. The police searched Cooper's car with his permission and found three condoms; women's shorts; a pink and black bra; a handwritten note with the heading, "My name is Chase"; a cellphone; a handwritten biography; and a flier with a photo of Cooper, the word "sane," and the number "4."

Police later searched Cooper's apartment in Los Angeles and found a flier taped to the wall that contained a picture of Cooper and the number "4." Police also found a handwritten poem or "rap" that included the following references to pimping: "East Side Baby with a Baseline dream, six, seven hoes, eight, nine stacks green." A police officer who worked as an investigator for the San Bernardino Police Department's vice unit testified that "Baseline" referred to San Bernardino's active track or blade (prostitution area); "six, seven hoes" referred to a pimp's women; "eight, nine stacks" referred to a thousand dollars; and "green" was a reference to money.

Jennifer Kohrell, a detective with the San Bernardino Police Department who had been a detective in the department's vice and narcotics unit and conducted prostitution programs, testified that the majority of female prostitutes working on the Baseline track had pimps, and all of the juvenile prostitutes she had interviewed had pimps. She testified that "[t]he younger the girl is, the more naïve they are, the less life experience they have, and the more they're susceptible to these lies and the devious behavior these pimps will...