People v. Johnson CA1/4 ( 2022 )

Filed 10/19/22 P. v. Johnson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A158288
v.
LESHONE DEWUAN JOHNSON, (Solano County
Super. Ct. No. FCR333521)
Defendant and Appellant.
A jury convicted Leshone Dewuan Johnson of trafficking a minor for a
commercial sex act (Pen. Code,1 § 236.1, subd. (c)(1) [count one]), pimping a
minor over the age of 16 (§ 266h, subd. (b) [count two]]); pandering a minor
over the age of 16 (§ 266i, subd. (b)(1) [count three]; oral copulation of a
person under the age of 18 (§ 288a, subd. (b)(1)) [count four]; and unlawful
sexual intercourse (§ 261.5, subd. (c) [count five]). The trial court sentenced
him to 13 years four months in prison.
On appeal, Johnson contends that his pimping conviction should be
reversed because there is insufficient evidence that the minor, T.B., earned
money from prostitution or that she gave him any money she earned from
prostitution. He further argues, and the Attorney General agrees, the matter
1All further statutory references are to the Penal Code unless otherwise
indicated.
must be remanded for resentencing in light of recent amendments to section
1170. We conclude that sufficient evidence supports Johnson’s pimping
conviction, but agree with the parties that the case should be remanded for
resentencing.
FACTS
T.B. was 18 years old when she testified at Johnson’s trial in 2019.2
T.B. left home when she was 13 years old and turned to prostitution as a
means to support herself. She testified that in prostitution parlance, going on
a “date” meant “go[ing] to the guy that you’re getting money from.” To get
dates, she advertised herself on Backpage, which included “in-calls” (men
went to her location) and “out-calls” (she went to location of the men). T.B.
did not enjoy the dates themselves, but enjoyed the money she earned from
them. Although she would have rather earned money a different way,
prostitution was the only way she knew how to make money. She described a
“pimp” as being someone who told her “where to go, when to go” and
maintained some control over the money she earned from prostitution.
T.B. met Johnson sometime in 2016 after she had stolen a car and was
on the run from the police. Although she was 16 years old, she told Johnson
she was 21. T.B. stayed with Johnson for a few weeks. During this time, they
had a sexual relationship and she never left the house. Eventually, T.B. left
Johnson’s house; she could not remember where she went but believed she
went to juvenile hall.
T.B. returned to Johnson’s house on June 20, 2017. Two days later, T.B.
posted Backpage advertisements to earn some money. T.B. “felt bad” because
2 T.B. testified under partial immunity, whereby her statements made
at trial could not be used against her, but she still could be prosecuted for the
crimes she discussed.
2
Johnson had been taking care of her and she wanted to help pay for some
bills. T.B. testified that she never got any money from these advertisements.
Eventually, T.B. told Johnson about the advertisements, explaining to him
“there was only one way of getting money” that she knew and it was through
prostitution. T.B. asked Johnson to use his phone to post more
advertisements. She denied ever making money from the advertisements.
T.B. testified that she was arrested on June 27, 2017 in connection with
a home invasion and taken to juvenile hall. She told the investigating officer
that she wanted to go to juvenile hall because it was better than prostituting
herself. While at juvenile hall, T.B. called Johnson and sent him letters
referring to him as “daddy.” “Daddy” is a common term for pimp. Johnson
sent her letters with drawings of snowmen and money signs. T.B. denied ever
seeing the letters; she admitted that in the Backpage ads she referred to
herself as a “snow bunny.”
T.B. was later placed in a group home, but she ran away after a few
weeks. Maddy, another girl at the group home, ran away with her. T.B.
earned money for a bus ticket back to Johnson’s house by engaging in
prostitution. Upon her return, T.B. and Johnson resumed their sexual
relationship. T.B. then posted more Backpage advertisements in an effort to
prostitute herself again.
T.B. admitted that on October 24, 2017 she texted with a girl named
Julia to see if she was interested in doing a “two girl special” in San
Francisco. When Julia asked about how much money T.B. had been earning,
T.B. texted, “Girl, you know it depends every day is different.” Later that day,
T.B. texted Julia it was time to head out and get to work.
T.B. testified that she could not remember if she made money on
October 24, 2017. T.B. did admit, however, that in an October 25 text, when
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Maddy asked if she was getting any money, she replied, “Girl, duh”. T.B.
admitted this response meant that she had been earning money. That same
day, T.B. texted Johnson a picture of herself holding wads of cash. Although
T.B. felt like she “owed” Johnson money because he had been giving her a
place to stay and giving her food, she denied giving Johnson any of the money
she earned that day. On October 25, T.B. also texted Johnson, “We not
getting no where money wise,” to which he responded, “Because you wasn’t
trying to get no money.” T.B. replied, “Yes I was you didn’t put me on.”
On October 26, 2017, T.B. and Johnson texted each other about T.B.
prostituting herself. Johnson texted T.B. warning her that she better come
back with some money. When T.B. texted that the “Homeboy” she had been
with did not have the money, Johnson reprimanded her for being at his
house. T.B. admitted that Johnson told her to go to the “blade”3 to make
money and instructed her to bring the money back to him. Although her text
message indicated that she agreed to go to the blade, T.B. testified that she
did not go to the blade that evening.
T.B. was contacted by an officer on the blade on October 27, 2017 and
brought in for questioning. Detective Adam Brunie interviewed T.B. at the
police station. Detective Brunie saw her place $40 in her bra before he began
the interview. She told him that she made $70 that evening from “hoeing”
and an additional $40 from babysitting. She said the money she placed in her
bra was from babysitting and the other money she made that day was “gone”
because she “put it in the bank.” T.B. told him that she did not want to be a
prostitute and wanted to live with her father, though she said she could not
3The blade or “working the blade” means actual street walking as
opposed to internet-based prostitution.
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do so at that time. She told Detective Brunie that she had been dating
Johnson for six months.
During the interview, Detective Brunie told T.B. that he would provide
services for her whether or not she gave him the name of her pimp. She
denied having a pimp until Detective Brunie mentioned that the police could
obtain a protective order if she provided the name of her pimp. She then
asked for a pen and notepad, and wrote down Johnson’s name. T.B. told
Detective Brunie that she and Johnson “needed some money.” She explained
that they had been living at Johnson’s mom’s house and his mom was upset
about T.B. staying there. At first, Johnson tried to make some extra money
by selling bikes or fishing poles. Johnson and T.B. agreed that if his sales
attempts did not work, then she would earn money through prostitution. T.B.
told Detective Brunie that this was a “joint” plan in which she and Johnson
agreed to split the proceeds from her prostitution. T.B. admitted that
Johnson told her that they needed to proceed with the plan to earn money
through prostitution.
T.B. told Detective Brunie that she and Johnson planned to get a hotel
on the day she was brought in for questioning, which Detective Brunie
believed meant that they “would get a hotel room and split the money.” T.B.
told Detective Brunie that Johnson would be upset if she did not return that
evening.
T.B. consented to a sexual assault exam (SART) after speaking with
Detective Brunie. T.B. initially told the examining nurse that Johnson was
her boyfriend and that they had been dating for approximately six months.
When asked for further clarification about whether Johnson was her
boyfriend, T.B. told the nurse, “well, kind of. He’s my pimp.”
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Detective Brunie testified as an expert in pimping, pandering and the
associated vernacular. Some of the common characteristics that human
trafficking victims share or tend to exhibit are a history of being a runaway,
low self-esteem, developmental disabilities and substance abuse.
An adult pimp or panderer typically exhibits power and control over a
minor victim akin to that in the domestic violence arena. Isolation, economic
dependence, emotional, physical and sexual violence, and affection and
economic support are typical components of the power exerted by a pimp or
panderer. Minor human trafficking victims typically do not see themselves as
victims. Minors view their pimp as a family member or boyfriend and want to
protect their pimp based on loyalty, trust and love. In Detective Brunie’s
training and experience, minors do not want to identify their pimp for fear of
being labeled a snitch. When Detective Brunie asked T.B. the number one
rule during her interview, she said it was “don’t tell the name of your pimp.”
Detective Brunie testified that the Backpage ads associated with
Johnson’s and T.B.’s cell phones contain terminology unique to the
prostitution trade. For example, one ad said, “just arrived, new in town,”
which could indicate the prostitute was a younger person. The call back
number placed in the ads belonged to Johnson. That meant Johnson’s
number had to be called in order to set up the date. Ads that said “snow
bunny” and “21” told the customer the female was young, but said 21 years of
age in order to avoid law enforcement interest. The reference in some of the
ads to “no AA,” meant no African-Americans, which signaled that the
advertiser had a pimp.
The October 2017 ads did not reference Johnson’s cell phone number,
but bore the number of the phone Johnson gave to T.B. This suggested
Johnson could be in control of T.B.’s communications with clients. Texts
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between Johnson and T.B. confirmed that Johnson had been controlling
T.B.’s communication with clients. In Detective Brunie’s opinion, this was a
form of pimping and pandering.
Based on a hypothetical mirroring the facts of the case, Detective
Brunie opined that Johnson was trafficking, pimping, and pandering T.B.
DISCUSSION
1. Substantial Evidence Supports Johnson’s Pimping Conviction
A. Standard of Review
The principles governing appellate review of a substantial evidence
challenge to a conviction are well settled. To assess the sufficiency of the
evidence, we review the whole record in the light most favorable to the
prosecution, presuming in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence to determine
whether there is substantial evidence to support the verdict. (People v.
Mendez (2019) 7 Cal.5th 680, 702.) That is, we look for “ ‘evidence which is
reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ ” (People v.
Westerfield (2019) 6 Cal.5th 632, 713.)
The standard of review is the same even where the case against the
defendant was based primarily on circumstantial evidence. (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.) On appeal, “our task is not to resolve
credibility issues or evidentiary conflicts, nor is it to inquire whether the
evidence might reasonably be reconciled with the defendant’s innocence.”
(People v. Zaragoza (2016) 1 Cal.5th 21, 44; People v. Manibusan (2013)
58 Cal.4th 40, 92.) Rather, “[i]t is the duty of the jury to acquit the defendant
if it finds the circumstantial evidence is susceptible to two interpretations,
one of which suggests guilt and the other innocence.” (Zaragoza, at p. 44.)
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And “[w]here the circumstances reasonably justify the trier of fact’s findings,
a reviewing court’s conclusion the circumstances might also reasonably be
reconciled with a contrary finding does not warrant the judgment's reversal.”
(People v. Zamudio (2008) 43 Cal.4th 327, 358.) Indeed, we will not reverse a
judgment of conviction for insufficient evidence lest “ ‘it appears “that upon
no hypothesis whatever is there sufficient substantial evidence to support” ’
the jury’s verdict.” (Id. at p. 357.) Moreover, “ ‘unless the testimony is
physically impossible or inherently improbable, testimony of a single witness
is sufficient to support a conviction.’ ” (People v. Ghobrial (2018) 5 Cal.5th
250, 281.)
B. Analysis
Section 266h, subdivision (a), defines pimping as follows: “Except as
provided in subdivision (b), any person who, knowing another person is a
prostitute, lives or derives support or maintenance in whole or in part from
the earnings or proceeds of the person’s prostitution . . . is guilty” of pimping.
To prove the pimping count, the prosecution had to prove that Johnson knew
T.B. was a prostitute and that Johnson derived support or maintenance, in
whole or in part, from T.B.’s earnings as a prostitute. (People v.
Guyton (2018) 20 Cal.App.5th 499, 506; People v. Scally (2015)
243 Cal.App.4th 285, 292; CALCRIM No. 1150.) Johnson challenges only the
evidence to support the latter element.
Johnson contends there was no evidence that T.B. actually earned
money from prostitution and/or to the extent she did earn money from
prostitution there is no evidence he received any such money from T.B. We
disagree.
There is ample evidence T.B. earned money from prostitution. T.B.
testified that she wanted to help Johnson pay for living expenses and the only
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way she knew how to make money was through prostitution. The jury was
entitled to discredit T.B.’s testimony that she never gave Johnson any money.
Although T.B. denied making money from the internet ads, she admitted she
told Julia that she earned money from prostitution and the amount varied
depending on the day. T.B. also admitted that she told Maddy that she had
been earning money from prostitution. T.B. sent Johnson a picture of herself
holding wads of cash. Finally, at the time she was brought into the station for
questioning, T.B. admitted to having earned $70 from “hoeing.”
There is also substantial evidence Johnson derived a benefit from T.B.’s
prostitution. That Johnson provided T.B. with room and board, supplied her
with a cell phone, told her to go to the blade and come back with money, and
expressed anger when T.B. had a date who could not pay her is evidence from
which it may be inferred that he had a financial stake in her welfare and
expected to benefit from her prostitution activities. Even if it were
conceivable his interests were altruistic rather than pecuniary, this
possibility does not compel reversal. “Where the circumstances support the
trier of fact’s finding of guilt, an appellate court cannot reverse merely
because it believes the evidence is reasonably reconciled with the defendant’s
innocence.” (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) Despite a
plausible theory of innocence, we must affirm if “ ‘any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.’ ” (People v. Earp (1999) 20 Cal.4th 826, 887.)
Looking at the circumstances of this case and construing them, as we
must, in the light most favorable to the prosecution (People v. Earp, supra, 20
Cal.4th at pp. 887-888), there is substantial evidence Johnson derived
support from T.B.’s prostitution. Johnson’s phone number was the main point
of contact listed on numerous internet postings advertising T.B.’s services.
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T.B. and Johnson had a joint plan to split the money she earned from
prostitution. On the night she was questioned by police, T.B admitted that
she made $70 from “hoeing” and the plan was to get a hotel with Johnson
that night. Even though Johnson did not receive the money that night, it is
reasonable to infer that over the course of the several months that T.B. lived
with Johnson he derived some benefit from her prostitution. Johnson not only
knew T.B. was a prostitute but also aided and controlled her prostitution.
Combined, these facts strongly suggest that Johnson was in the business to
make money and that he derived support from T.B.’s prostitution. We
therefore find substantial evidence to support his conviction for pimping.
2. Requested Remand for Resentencing Under Senate Bill No. 567
Senate Bill No. 567 (2021–2022 Reg. Sess.) recently amended section
1170, subdivision (b), to specify that, when a sentencing court chooses a term
from a statutory triad, the chosen term shall not exceed the middle term,
unless the facts supporting the aggravating circumstances are (1) established
by the defendant’s stipulation, (2) proven to a jury (or to a court, if jury is
waived) beyond a reasonable doubt, or (3) based on prior convictions
evidenced by a certified record of conviction. (Stats. 2021, ch. 731, §§ 1.3, 3,
subd. (c), adding § 1170, subd. (b)(1)–(3), by amendment.) Senate Bill No. 567
also added a provision that requires the trial court to impose the low term if
the defendant’s psychological, physical, or childhood trauma was a
contributing factor in the commission of the offense, “unless the court finds
that the aggravating circumstances outweigh the mitigating circumstances
[so] that imposition of the lower term would be contrary to the interests of
justice.” (Stats. 2021, ch. 731, §§ 1.3, 3, subd. (c), adding § 1170, subd. (b)(6),
by amendment.)
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The trial court here imposed the upper term of 12 years for the
trafficking offense (count 1). The parties agree that the above-mentioned
ameliorative amendments apply retroactively to this case, and the matter
should be remanded for resentencing under current section 1170. We agree.
(People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039 [remanding for
resentencing under section 1170 as amended by Senate Bill No. 567].)
DISPOSITION
Johnson’s sentence is conditionally vacated, and on remand the court
shall resentence him in accordance with newly enacted section 1170,
subdivisions (b)(1)–(3) and (b)(6). The judgment is otherwise affirmed.
GOLDMAN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
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