People v. Scally

243 Cal.App.4th 285

196 Cal.Rptr.3d 310

The PEOPLE, Plaintiff and Respondent,

v.Raphael Jared SCALLY, Defendant and Appellant.

G050444

Court of Appeal, Fourth District, Division 3, California.

Filed December 7, 2015

David R. Greifinger, 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, Charles C. Ragland and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

IKOLA, J.

The jury found defendant guilty of one count of pimping (Pen.Code, § 266h, subd. (a) ) and one count of pandering (Pen.Code, § 266i, subd. (a) ). The court held a bench trial and found it to be true that defendant committed the offenses while out on bail. (Pen.Code, § 12022.1, subd. (b).) The court sentenced defendant to the midterm of four years on the pimping count, stayed imposition of the sentence on the pandering count, and imposed, but stayed, a two year on-bail enhancement.

On appeal, defendant raises a single issue: that the court erred by permitting the People's expert to testify that certain text messages sent from defendant to individuals other than the particular prostitute at issue were consistent with pimping activity. Defendant contends this was improper character evidence under Evidence Code section 1101. We conclude the evidence was relevant to rebut the defense that the prostitute was merely defendant's girlfriend—a nonpropensity basis for relevance—and thus we affirm.

FACTS

On June 14, 2013, Santa Ana Police Officer Daniel Padron was assigned to the vice unit and was working undercover in a high prostitution area. Padron observed a Volkswagon traveling on a nearby side street abruptly double park in the middle of the street and let out two women from a rear door. One of the women who got out of the car was AnaMarie S. (AnaMarie), the other was Dakota L. (Dakota), the latter of whom is the subject of the pimping and pandering charge here. There were three males that remained in the car.

Padron followed AnaMarie and attempted to position his vehicle to speak with her, but she passed his vehicle and spoke with the driver of a truck; she entered the truck and it drove away. The truck was subsequently stopped. Padron spoke with the male driver and AnaMarie and found $50 on the armrest between them. The driver of the truck testified that he had agreed to pay AnaMarie $50 for a sex act, but that the police had stopped his truck before she performed the act.

Approximately 45 minutes after initially seeing the Volkswagon drop off the women, Padron spotted it again and made contact with the occupants. Defendant was in the rear passenger seat. Padron found $194 in defendant's right sock. Padron asked defendant if he had a job, defendant said he did not. Padron asked defendant where he got the money; defendant replied he did not know.

Padron obtained defendant's phone, which was continuously ringing. Text messages were being sent to defendant's phone from a number identified as "Sweetie," which Padron read. Padron responded to the text messages, first asking where she was and ultimately arranging to meet her. Dakota was waiting at the meeting location. Padron recognized Dakota from an earlier prostitution investigation in which Padron had responded to her online advertisement Dakota had agreed to exchange money for a sex act. Dakota had a phone on her that contained text messages corresponding to the messages on defendant's phone from "Sweetie." Dakota did not have any money on her.

The police extracted many text messages from defendant's phone, which were admitted into evidence (and which are discussed in connection with the People's expert's testimony, below). The police also found photographs of Dakota on defendant's phone that corresponded to the photographs Padron had discovered in the online prostitution advertisement in his previous investigation of Dakota

The People called Officer Luis Barragan as an expert in the field of pimping, pandering, and prostitution. Barragan testified that a tattoo on AnaMarie's thigh is indicative of a pimp-prostitute relationship. The tattoo depicts a crown on top of the letter P, which is next to the letter D and has dollar signs floating around the letters. Barragan testified that tattoos of a crown and a dollar sign are common symbols of a pimp. He also testified the term "pimp daddy" is a common term used by prostitutes to describe a pimp. Barragan offered similar opinions about other tattoos on AnaMarie.

Barragan testified that a tattoo on Dakota's thigh of a flower with a dollar sign in the middle, underneath which appears the word "Stage," is indicative of a pimp-prostitute relationship, focusing, again, on the dollar sign. "Stage" is defendant's moniker.

Barragan also testified about the numerous text messages extracted from defendant's phone. In one exchange between defendant and Dakota, which took place on June 7, 2013 (one week before the arrest), defendant stated, "Bitch I'm good on u don't say shit to me go worry about getting high instead of getting money,"¹ "U dumb bitch," "I'm sick of u & ur games but its coo watch ima show yo ass," "U a weak ass bitch." Dakota: "Your just realy being over the top." Defendant: "I'm done," "Do u I'm on my own hustle," "I'ma make my own $ my way," "I'm tired of going through this wit u," "U making me look super bad rt now smh [shaking my head] its all good though," "I got u." Defendant continued: "U was so down to walk to get a swisher to get fuckin high but u don't wanna walk the blade make no money SMH bitch u weak." (The term "blade" refers to an area where a prostitute attempts to solicit business.) "U gonna see tho watch! U think shit is a game." Dakota: "Ok idk why your saying wen I'm going out your just realy being mean." Defendant: "Don't text me." "Don't talk to me."

"All u worried about is getting high I'm cool on you foreal." Dakota: "You alwaz say shit win your mad n u know I'm about my money idk why your saying this shit know," "I do everything in my power to keep u happy but tht doesn't seem to work." Defendant: "Get off my line." "I'm done." "Do u?" Dakota: "Wht do u mean by tht?" "Forreal." "Stop saying tht." Defendant: "Goodnight." Dakota: "No talk to me for real." "Plzzzz." "Ok stage I got the messige I will leave you alone ok I will just try my best to get money shit you ack like I waz talk to other nigga n shit but ok I got the messige." A few hours later defendant texted, "U good?" Dakota replied, "Yea." Defendant responded, "Ok," "U good."

Barragan opined this exchange is consistent with a pimp-prostitute relationship because "it shows a pattern of psychological control." "Because it shows him verbally putting her ... down and telling her, in essence, she is not good for him." "And he continues to put her down, where eventually he brings her back up." Barragan also noted that some of the terminology in the exchange, such as "walk the blade," is consistent with a pimp-prostitute relationship.

Barragan also opined that the following exchange was consistent with a pimp-prostitute relationship: Dakota: "There's 2 pips out." Defendant: "U good?" Dakota: "Yea." Defendant: "Wya [where you at]?" Dakota: "Going back to the street." Defendant: "Ok." "After yo date get in the car." "We done." Barragan explained that a "date" in the pimping culture refers to an agreed upon sex act with a client. Barragan further explained, "He's supervising her and continuously asking her if she's okay, or where her location is at, and also, giving her directions or orders."

Barragan also opined the following conversation between defendant and Dakota was indicative of a pimp-prostitute relationship: Defendant: "U good?" Dakota: "Yeah the cops just left tht street thoo my trick getting ciggs nd he pay star to come along but she didn't have to do anything I have 120." Defendant: "Ok." "Are you still working? Just get 250 & we can leave." Approximately 30 minutes later, defendant: "Go somewhere so we can pick yall up." "Wya?" "Get off camile." A "trick" is another name for a john, or a client. Barragan opined that this "appears a conversation is being had between a pimp and a prostitute out on the track." Barragan explained that a prostitute usually has a quota to meet each night on the street, and opined that the numbers referred to are dollar amounts.

Another exchange Barragan testified was consistent with a pimp-prostitute relationship was the following: Defendant: "U good?" Dakota: "Yea." Defendant: "Ok I see u getting it we been up & down the blade." Dakota: "Yea I have 130." "I'm trying." Defendant: "Ok keep working."

The final exchange between defendant and Dakota occurred the night of the arrest. Defendant: "U good?" "We parked on Camille." Dakota: "Ok yea getting drop back off." "Be careful some times the cops shine the lights in the cars." "Just saw you pass." Defendant: "We on shannon." Dakota: "Gang of hoes out here n pimps." Defendant: "ok ima pull over there." "U good?" "U see me showin out on the blade? Lol." Dakota: "Yeah lol I have 140 and on a date right know for 60 the black girls are mad lol." Defendant: "Get 300 & come in." "U already got 200." "Just get another 100." Dakota: "Got one for 80." Defendant: "After that go to Shannon." Dakota: "I'm done." Defendant: "Where u at?" Dakota: "On shannon." Defendant: "On my way u did good luv." Dakota: "Thank u daddy." "I had to do good today." Defendant: "Hella cops out here."

Barragan opined that this conversation is consistent with a prostitute indicating she had been dropped off after a date and updating her pimp on the amount she had made, and the pimp giving her instructions on how much more to make prostituting. Barragan explained that Camille is a street near the main track where prostitutes are typically dropped off. Shannon is also a street near the main track where prostitutes are frequently dropped off to avoid police detection....