People v. Shin

THE PEOPLE, Plaintiff and Respondent, v. TOM SUNGWON SHIN, Defendant and Appellant.

G056674

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

August 28, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18CF0488)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Larry Yellin, Judge. Affirmed.

Roger Jon Diamond for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Alana Cohen Butler and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

* * * A defendant can be convicted of pimping under a "support" theory or a "solicitation" theory: "any person who, knowing another person is a prostitute, lives or derives support . . . in whole or in part from the earnings or proceeds of the person's prostitution . . . , or who solicits or receives compensation for soliciting for the person, is guilty of pimping . . . ." (Pen. Code, § 266h, subd. (a), italics added.)

Defendant Tom Sungwon Shin posted ads online for Queen's Day Spa (QDS), a prostitution business fronting as a massage parlor. Shin was paid $1,000 a month. A jury found Shin guilty of pimping. He raises several arguments on appeal.

Shin argues the court erred by admitting evidence he posted ads online for other massage parlors. We disagree; these "uncharged acts" were probative of Shin's knowledge. (Evid. Code, § 1101, subd. (b).)¹ Shin argues the court violated due process by instructing the jury on both theories of pimping when only one was alleged in the pleadings. We disagree; Shin was given adequate notice through the preliminary hearing evidence and in other ways. Shin argues the court erred by refusing to grant a defense witness immunity from prosecution. We disagree; courts have no such authority.

Shin also raised several other miscellaneous arguments in his briefs in a cursory fashion with no citations to the record or to legal authorities. Consequently, Shin has forfeited these arguments on appeal. (People v. Marshall (1990) 50 Cal.3d 907, 945, fn. 9.) In any event, these arguments all lack merit. Thus, we affirm the judgment.

IFACTS AND PROCEDURAL HISTORY

In June 2016, Investigator David Pultz received a tip that prostitution was occurring at QDS, a Stanton massage parlor. Pultz began an investigation, finding ads for QDS on Backpage.com, a website that routinely advertised prostitution services. Theads indicated that QDS was soliciting prostitution, rather than legitimate massage services (e.g., "'Cutest Asian girls ever. So sweet. Very pretty'"). Pultz also found reviews of QDS on a website where men posted about illicit massage parlors.

Investigator Pultz conducted surveillance on QDS and saw circumstances consistent with prostitution (e.g., only men entered, and they left after 15 to 30 minutes). Pultz spoke with a man who had just left QDS, he said that an Asian female has masturbated him in exchange for $60 (a "hand job"). An undercover sheriff's deputy entered QDS and paid $35 for a purported half-hour massage. After he undressed and laid on a massage table, an Asian female later identified as Huong N., asked the deputy through hand gestures whether he wanted a hand job.

Investigator Pultz and another investigator entered QDS to conduct a search. The investigators found items consistent with prostitution (cash, ledgers, and pay-owe sheets). Huong had three cell phones, and she appeared to be living at QDS. Huong admitted that she gave hand jobs. Huong said that Charlie D. was the owner and she paid him half the money.

Evidence Concerning Shin

Huong told the investigators that she paid $1,000 each month to "John" for advertising services. Huong said that "John" was due at QDS to pick up the money. When Shin arrived at QDS, Huong identified him as "John." Investigators found approximately $800 in cash on Shin's person, a bank receipt for a $600 cash deposit, and a cell phone. In Shin's car, investigators found $424 in cash, a receipt book, and a ledger, which included "a notation for Queen's." On Shin's cell phone, investigators found "'stock photos'" of scantily clad women, of a type that were commonly used for prostitution ads. Shin's phone also contained photographs of login and payment pages for Backpage.com.

The investigators found text conversations between Huong and Shin. Huong complained to Shin regarding online reviews that "are not true about my shop. . . . Here we never do BJ but on review says there is a BJ. I don't know why on review say that[] everybody here only do HJ . . . ." Shin replied, "Yes the review websites are terrible." Huong regularly updated Shin on the number of customers: "Thanks a lot JOHN I've just finished a customer he very, very nice[.]" Shin texted Huong, "I am installing a 'counter' for massage ads so we can see how many people click ads[.]"

The investigators obtained records from Backpage.com, which were connected to e-mail addresses on Shin's phone. The records contained ads for other massage parlors connected to Shin.

Court Proceedings

In February 2018, the People filed a complaint, which alleged Shin committed one count of pimping and four counts of pandering. The trial court dismissed the pandering counts.² Following a preliminary hearing, the People filed an information alleging one count of pimping.

In August 2018, a jury found Shin guilty of pimping. The court imposed a mandatory prison sentence, choosing the low term of three years.

IIDISCUSSION

Shin asserts the trial court: A) improperly admitted evidence of uncharged acts; B) violated due process by instructing the jury on both the support and solicitation theories of pimping; C) erred by refusing to grant Charlie D. (the purported owner of QDS) immunity from prosecution; and D) committed several other miscellaneous errors.

A. Admission of Uncharged Acts

Shin argues that the trial court erred by admitting ads for other massage parlors under section 1101 (b). We disagree.

A trial court's ruling under section 1101 (b) is reviewed for an abuse of discretion. (People v. Moore (2016) 6 Cal.App.5th 73, 92.) As such, "we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)

1. General Legal Principles

Generally, evidence "of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a), italics added.) However, uncharged acts are admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than [a person's] disposition to commit such an act." (§ 1101 (b), italics added.)

The admissibility of uncharged acts "'"depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged [act] to prove or disprove the material fact; and (3) the existence of anyrule or policy requiring the exclusion of relevant evidence."'" (People v. Moore, supra, 6 Cal.App.5th at p. 92.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (§ 352.)

2. Relevant Proceedings

The prosecutor told the court the proffered evidence included ads for other massage parlors, and that Investigator Pultz would testify: "That those ads look like the type he has learned, in his training and experience, that are consistent with prostitution . . . ." The prosecutor sought to introduce the evidence to show Shin's knowledge under section 1101 (b): Shin "has a very particular manner in which he posts these ads. It is very evident that the same person is posting these ads, and he even discusses with Huong what is going to generate more customers. . . . [¶] . . . The defendant is not charged with anything as it relates to those particular establishments, but . . . the probative value of all the ads that he posts [are] extremely high . . . ."

The court ruled that the ads were relevant because "any evidence that shows there is knowledge is relevant. Any evidence that shows there is a lack of knowledge would be relevant for the defense." As far as prejudice, the court cited case law and ruled that evidence was "prejudicial in that it may show knowledge, but it's not prejudicial in that it may flame the passions of a jury." The court admitted the evidence of the other massage parlor ads to "show knowledge."

3. Analysis

In order to prove pimping, the prosecution was required to prove that Shin "knew that [Huong N.] was a prostitute." (See CALCRIM No. 1150.) According to the testimony of Investigator Pultz, the other ads—that were apparently designed and posted by Shin—were consistent with massage parlors that routinely engaged in prostitution.Therefore, the Backpage.com ads for massage parlors other than QDS logically tended to prove Shin's knowledge of prostitution. As such, the court did not abuse its discretion in finding that the ads were admissible under section 1101 (b).

Indeed, other trial courts have admitted uncharged acts to show a defendant's specific knowledge of prostitution. (People v. Scally (2015) 243 Cal.App.4th 285 (Scally).) In Scally, defendant was on trial for pimping and...