Opinion
C081255
01-23-2018
THE PEOPLE, Plaintiff and Respondent, v. MARCEL DRAKE JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03077)
A court convicted defendant Marcel Drake Johnson of human trafficking of a minor with intent to pimp and pander (Pen. Code, § 236.1, subd. (c)(1)—count 9), posing a minor for photos involving sexual content (§ 311.4, subd. (b)—count 10), and 12 counts of lewd and lascivious conduct upon a child under the age of 14 years (§ 288, subd. (a)—counts 2, 3, 5 through 8, and 14 through 19).
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses, unless otherwise specified.
Codefendant Daniel Thomas White was charged with defendant in counts 5 through 10 and 14 through 19. White was also charged with additional lewd and lascivious acts in counts 1 and 4, transportation for sale of marijuana (count 11), furnishing methamphetamine to a minor (count 12), and furnishing cocaine to a minor (count 13). White was tried with defendant, convicted on all counts, and sentenced to state prison. This appeal does not involve codefendant White.
The court sentenced defendant to state prison for an aggregate term of 28 years, that is, the midterm of eight years for count 9 (human trafficking), consecutive one-third the midterm or two years each for counts 2, 3, 6, 8, and 14 through 19 (lewd and lascivious), and concurrent six-year terms for counts 5 and 7 (lewd and lascivious). The court stayed sentence (§ 654) on count 10 (posing minor for photos).
Defendant appeals. He contends (1) insufficient evidence supports his conviction on certain child molestation counts or (2) section 654 required the court to stay sentence on such counts. In supplemental briefing, he contends and the People concede that remand is required pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin). We will remand to the trial court and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the spring of 2014, 13-year-old D.B. (the victim) communicated with 19-year-old Daniel White on Instagram. The victim attended seventh grade at a middle school. She told White she was 13 years old. While the victim testified White initially said he was 15 years old, the victim told an officer that White said he was 19 years old.
White asked for and the victim gave her phone number and they started text messaging. On April 27, 2014, the victim and White planned to meet in person after the victim got out of school. The victim texted that she would be wearing a dress and thong and White replied that he needed that. The next day, April 28, 2014, the victim texted White that she had waited at the library and he failed to show up. White angrily responded, "U never hit me up wit yo lying ass" and "that's y I don't f[---] wit young b[------]." She apologized; they planned to meet at the park behind the school after she got out of school the next day. She waited at the park as planned but White never showed up.
On April 30, 2014, White texted the victim that he had been to jail, was out on bail, needed help paying his bail bond of $2,500, advised he got a "telly" (a motel room), and claimed he was about to make $200 but needed "another girl to work." The victim said she would help, asking if he wanted her "to have sex with guys?" White responded in the affirmative. When she asked what she got, White replied, "Whatever u want really." White wanted to meet the victim. She said she would meet the next day. White wanted the victim to sneak out of her parents' house that night but the victim worried her parents would catch her. When White promised to have sex with her and make her "officially" his, the victim agreed to sneak out, asking, "& are you sure guys are gonna wanna f[---] a 13 year old." White responded, "U look older lol And u tell em u 18." The victim asked where the sex acts would occur and how much to charge. White said the acts would occur in his hotel room or the man's car and that he would "set all that up."
The victim later texted White that she would be unable to sneak out but offered to get $200 from her dad. White insisted that she sneak out but the victim replied that she was scared of having sex with "older guys" and asked what she would get for doing so. White asked what she wanted, claiming they both could benefit. She wanted, "[m]oney and you." White claimed they could make $500 that night and that he was "already yours love." White explained that he set the prices for the sex acts and the amount of time that he would wait for her during the "dates" (as they referred to them), which took place in a motel room or the "date's" car, and that she would meet his friend that night who would be "the one that's gonna show u the ropes." The victim gave her address to him and asked what kind of car he would be driving. White replied that he would be in a Mustang, "me n my boy." White told the victim, "If my n[-----] ask ur 15 babe." When she replied that he had previously said 18, White responded, "That's if your date ask you," and "Lol my friend just think u 15." The victim claimed she would "do[] the dates" for him "cause I don't want my babe in jail."
At midnight on May 1, 2014, the victim snuck out of her home and met White near her house. This was the first time they had met in person. White got out of a red Mustang, gave her a hug, and told her if his friend asked, she was 17 years old about to turn 18 years old. They got into the car which belonged to defendant who was the driver. Defendant was 19 years old. Defendant drove to an apartment complex where defendant and White got out and returned with a bag of marijuana. While defendant sat in the car, White and the victim walked to a play structure inside the complex where White had sexual intercourse with the victim. When they returned to defendant's car, White got in the front seat and the victim got in the backseat. Defendant then climbed into the back seat, and White got out of the car. The victim orally copulated defendant and touched his penis with her hand. Defendant then had sexual intercourse with the victim. White then got back inside the car and defendant drove them to his house, stopping along the way for all to smoke a marijuana "swisher." Defendant went inside his house and White and the victim spent the rest of the night in defendant's car, where the victim saw a gun next to the driver's seat. The next morning, White told the victim about the Web site "Redbook" and the victim knew it was "where girls make money." White planned to rent a motel room for "working" and the victim agreed.
About noon on May 1, 2014, the victim had her first date. Defendant drove White and the victim to the apartment complex they had been to the previous night. White told the victim to get into a man's car that was located around the corner. She did and the man drove to his house where the man asked her name and her age. She gave her name and claimed she was 18. She knew she was going to have sex for money and texted White, "So before sex I just say so how much you gonna pay." The man took the victim into his bedroom and handed her $100. White had explained to the victim that he sets the price for the sex acts, she collects the money, and then has sex with the person. She put the $100 in her pocket and had vaginal intercourse with the man. Afterward, the victim texted defendant, "The condom ripped and I think he cumed inside of me." Defendant replied, "U gonna b alright we got plan b." The man took the victim back to the apartment complex where defendant and White were waiting in the parking lot. The victim gave the money to White. White had told the victim that he and defendant set up the dates and she was supposed to give the money to the one who had set up the date. Defendant, White and the victim then went to a motel. White texted the victim to turn her phone off "so they can't track it."
White and defendant had the victim pose for photos to post on Redbook. The victim, wearing a bra and thong underwear, posed for several photos that White took on his phone. The victim heard White and defendant discuss her name and her description for the photo ads and saw defendant typing on his phone. Both defendant and White began receiving calls, which they had the victim answer. Defendant and White told her what to say in explaining the services and prices. Sometimes she did not talk to the dates that were arranged by White or defendant through text messaging. During dates, defendant and White waited outside the room. After she had performed the sex acts with her date, White and defendant, who were almost always together, returned to the room together, telling her who got the money and it was never her. White offered and the victim took some pills and later snorted drugs to keep awake. White bragged to a friend that he was pimping the victim on Redbook.
At the motel, the victim had sexual intercourse with White and a threesome with White and defendant. When the victim was on the bed, White and defendant laughed and high-fived one another. The victim orally copulated White while defendant inserted his penis in her vagina. After, defendant and White high-fived each other again. Then the victim orally copulated defendant while White inserted his penis in her vagina. Defendant, White and the victim moved from the motel to an inn.
The victim had one date who was aggressive and the victim complained to White who replied that she needed to work until he made a certain amount of money. The victim believed she had had sex (or any sex act the men wanted her to perform) more than 20 times with dates, some of whom were repeat customers. She never slept and was on drugs continuously.
The victim's mother texted her, asking when she would be home. The victim responded the next day. White saw the messages and asked if she wanted to return home. The victim told him she was not sure. White offered to take her home if she wanted to go.
On May 5, 2014, Sergeant Jeff Morris advised Detective Kristine Morse that the victim's family members had seen the victim advertized on Redbook. Detective Morse found the two ads on Redbook. One, with defendant's cell phone number as the contact number, was called "SamiLove01" and described a Latina girl named "Lina" who offered different sex services. The other, with White's cell phone number as the contact number, was called "Dippedinhunny92" and described a Latina girl named "Brandy." The victim is Hispanic. Sergeant Morris called White's number and a girl answered. Sergeant Morris asked if she had time to spend with him and the girl replied that she would text him. Sergeant Morris received a text message and Detective Morse texted back to set up a date. The detective was sent to room 220 at the inn.
Redbook, a prostitution Web site, was shut down by the FBI in June 2014.
Shortly after midnight on May 6, 2014, the detective knocked on the door and when no one answered, the detective removed the screen on the front window which was open and pulled back the curtain. The detective saw the victim approaching the door. The victim, who was the only one in the room, opened the door for the detective and two other officers. Defendant and another individual were found next to defendant's Mustang which was parked nearby. When searched, the victim's cell phone was found under the front seat of the Mustang. The victim's phone did not have any text messages setting up dates. The detective asked the whereabouts of White and the victim directed the detective to the room directly below hers. In room 120, officers found White, another girl, and a man, a small plastic bindle of narcotics belonging to White, a scale, White's wallet and cell phone, and the cell phone of the other person with defendant. In room 220, officers found a large quantity of narcotics, a box of condoms, a used condom in the trash, a receipt reflecting that the room was registered to White, clothing and pills in a duffle bag belonging to White, and, in the dresser drawer, lingerie belonging to the victim. White had $275 and defendant had $92.
The cell phones belonging to defendant and White contained the victim's photos used for the Redbook ads and text messages concerning prostitution services, directing men to the motel and later to the inn. White's phone did not have any messages related to prostitution prior to May 2014 but he had earlier text messages with references of previously being involved in "trapping." Defendant's phone had messages related to prostitution dating back to 2013 and the messages numbered well over 100 according to the detective. There were other Redbook ads with defendant's phone number attached for a different girl, "Christina" from May 1 to May 5. Voicemail messages on defendant's phone were from several men asking to speak or meet "Lina." Defendant's phone also had videos of him displaying large sums of cash and in one, he mentions "trapping," which means getting money through prostitution or drug sales. In another video, a gun is seen on a table in the background. Defendant was on a list prohibiting him from renting a room at the motel. Detective Morse found 20 dates (whom he referred to as john or johns) were sent via the phones of White and defendant to the victim's room.
That morning, the detective interviewed the victim who answered questions but appeared tired. The victim was unaware of her Redbook ads. A sexual assault exam revealed that the victim tested positive for a sexually transmitted disease.
Sergeant Morris, testifying as an expert on prostitution and human trafficking, stated that a pimp is often nearby when his prostitute is working, not for protection but to ensure he obtains the money after his prostitute performs her sex act. A younger prostitute, often a runaway, is manipulated and believes she is in love with her pimp.
White testified. He accepted the victim's friend request on Instagram. He denied telling her he was 15 years old. He admitted that he learned she was only 13 years old before they met in person. He admitted he brought up prostitution but stated it was a "two-sided thing," claiming she knew more about it than he did and she was interested in making some money. White stated the victim received alcohol and drugs from a date, not him, although he claimed he was under the influence the entire time and used cocaine with the victim. When they had to leave the motel because there was "too much traffic," the victim wanted to continue making money because it was Cinco de Mayo and suggested she stay at the inn where White had been staying.
On cross-examination, White admitted he lied to the victim about money for a bail bond. He admitted he suggested prostitution to the victim who he knew was only 13 years old and in seventh grade and admitted telling the victim he loved her so she would make money for him. White's friend who was supposed to show the victim "the ropes" was "B Moe" but he "flaked" so White had defendant, his good friend, do it. White denied knowing defendant was involved in prostitution but claimed defendant knew more about it than he did.
White denied arranging the victim's first date. Instead, the man was a regular customer defendant knew who called defendant's phone number and the victim spoke to the man about meeting. Defendant and White waited for the victim and one of them took the money from her and used the money to get a room at the motel. White took the photos of the victim for the Redbook ad and both he and defendant uploaded them. White admitted having had sex with the victim three times, once on the play structure, and twice in the motel, one time being the threesome with defendant. White believed 10 men slept with the victim but she had 20 dates because some were repeat customers. He claimed the victim named her own prices and arranged most of her own dates but admitted either he or defendant had told her how much money to collect. The victim answered both his and defendant's phone at the motel. White admitted he gave methamphetamine to the victim. The money the victim made was spent on the rooms at the motel and inn, drugs, food, gas, and the market.
Defendant testified. He apologized for making the wrong decisions. He had nothing to add or correct to the evidence adduced at trial other than he claimed he had been under the influence and "lied in the testimony that [he] took [sic]."
On cross-examination, defendant admitted having had vaginal and oral sex with the victim in the car and at the motel. He admitted helping White make the victim's Redbook ad. He admitted he set up the victim's first date (who was a regular customer) and helped White set up the rest. Defendant claimed the victim set up most of her own dates and used his phone to text. Defendant believed the victim was just as guilty as he was. Defendant did not think the victim was 18 years old but denied knowing the victim was 13 years old, stating no one ever told him her age. He admitted that he had just graduated high school and that a freshman looked younger than a senior in high school and that a seventh grader looked younger than an 18-year-old girl. He admitted that the victim did not look like she was 18 but claimed she did not look like she was 13 either. Defendant denied making money but admitted helping White make money off of the victim. Defendant admitted he had previously pimped other girls but denied pimping other girls at the same time as the victim. He claimed "Christina" was a friend and her prostitution was a "mutual thing." He admitted that he was helping Christina prostitute herself. He denied the gun seen in the video belonged to him and denied having a gun in his car. In response to court questioning, defendant admitted that he arranged dates for "Ashley" with the same man who was the victim's first date.
DISCUSSION
1.0 Sufficiency of Evidence for Aiding and Abetting Lewd or Lascivious Acts
Defendant was convicted on counts 14 through 19 for aiding and abetting the johns in committing a lewd or lascivious act with a child under the age of 14 years. Defendant contends there is insufficient evidence that he knew the victim was under 14 years of age. We conclude sufficient evidence supports his convictions.
"To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole." (People v. Johnson (1993) 6 Cal.4th 1, 38.)
Section 288, subdivision (a) provides, in relevant part, as follows: "[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
People v. Olsen (1984) 36 Cal.3d 638, 649 concluded "one who commits lewd or lascivious acts with a child, even with a good faith belief that the child is 14 years of age or older, does so at his or her peril." In other words, "[t]he mistake-of-fact defense, as a matter of public policy, does not apply to the commission of a lewd act on a child under the age of 14 years." (People v. Hanna (2013) 218 Cal.App.4th 455, 461.)
Section 31 provides, in relevant part, as follows: "All persons concerned in the commission of a crime, . . . , whether they directly commit the act constituting the offense, or aid and abet in its commission, . . . , are principals in any crime so committed." Thus, "[u]nder California law, a person who aids and abets the commission of a crime is a 'principal' in the crime, and thus shares the guilt of the actual perpetrator." (People v. Prettyman (1996) 14 Cal.4th 248, 259.)
"[T]he weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.) "[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime." (Id. at p. 561.)
White knew that the victim was 13 years of age prior to meeting her. White enlisted his good friend, defendant, to show the victim "the ropes," defendant knowing more about pimping and pandering than White. Defendant helped White make the victim's Redbook ads and set up the victim's first date with one of defendant's regular customers. Defendant drove White and the victim around in defendant's car, knowing the victim would be committing acts of prostitution at the motel and inn. Defendant had other girls, Christina and Ashley, whom he was pimping at the same time as the victim. Defendant knew the victim was under 18 years of age but claimed no one ever told him how old she was. Defendant was only 19 years of age himself, had recently finished high school, and knew what an underage girl looked like. Defendant and White, good friends, both committed lewd acts with the victim on more than one occasion, laughed and high-fived one another. White knew the victim's age. The trial court, as the trier of fact, properly found that defendant knew as well.
Here, defendant was guilty of lewd conduct as an aider and abettor on counts 14 through 19 since the evidence shows that he knew each john intended to commit a lewd act on the victim, that defendant intended to aid and abet each john in committing the lewd act on the victim, and that defendant did in fact aid each john in committing the lewd act on the victim. Sufficient evidence supports defendant's convictions on counts 14 through 19 as an aider and abettor to the johns in committing lewd acts on the victim who was 13 years of age, in violation of section 288, subdivision (a).
2.0 Section 654 and Sentencing on Counts 14 through 19
Defendant contends the trial court erred in failing to stay sentence on counts 14 through 19 because these counts were part of an indivisible course of conduct with count 9, human trafficking of a minor with the intent to pimp and pander. We disagree.
Section 654 provides that an "act or omission" punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. (§ 654, subd. (a).) The phrase " 'act or omission' " refers to a single act/omission or a course of conduct that constitutes an indivisible transaction. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.) " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " (People v. Rodriguez (2009) 47 Cal.4th 501, 507, italics omitted.) "Under section 654, a course of conduct divisible in time, though directed to one objective, may give rise to multiple convictions and multiple punishment 'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.' " (People v. Lopez (2011) 198 Cal.App.4th 698, 717-718 (Lopez).) "The trial court has broad latitude in determining whether section 654, subdivision (a) applies in a given case." (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) "A trial court's express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence." (People v. Brents (2012) 53 Cal.4th 599, 618.)
Defendant misplaces his reliance upon People v. Roberson (1988) 198 Cal.App.3d 860 and People v. DeLoach (1989) 207 Cal.App.3d 323. In Roberson, section 654 applied because the sex offense was committed as a means of committing another sex offense. (See Roberson, supra, at pp. 870-872; see also People v. McCoy (2012) 208 Cal.App.4th 1333, 1338-1339 ["Roberson did not provide any authority in support of its conclusion" and its holding is not a correct statement of the "trial court's authority to make factual findings under section 654"].) In DeLoach, the defendant pandered her daughter on two occasions, forcing her daughter to go with a man who committed two acts of oral copulation and sexual intercourse. The defendant was convicted of two counts of pandering, forcible oral copulation, oral copulation, and sexual intercourse with a female under 18 years of age. DeLoach concluded the defendant could not be punished for the nonforcible oral copulation and unlawful sexual intercourse which were indivisible from the second incident of pandering but the defendant could be punished for the pandering and the forcible oral copulation as they were separate and distinct and not incidental to one another. (DeLoach, supra, 207 Cal.App.3d at pp. 327-332, 336-339.)
Defendant was charged and convicted in count 9 of human trafficking of a minor with intent to pimp and pander. Section 236.1, subdivision (c) makes it a crime for a person to "cause[ ], induce[ ], or persuade[ ] . . . a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of" sections 266h and 266i, as well as other expressly included statutes.
Section 236.1, subdivision (c) provides, in relevant part, as follows: "A person who causes, induces, or persuades, or attempts to cause, induce, or persuade, a person who is a minor at the time of commission of the offense to engage in a commercial sex act, with the intent to effect or maintain a violation of Section . . . 266h [or] 266i, . . . is guilty of human trafficking. A violation of this subdivision is punishable by imprisonment in the state prison as follows: [¶] (1) Five, 8, or 12 years and a fine of not more than five hundred thousand dollars ($500,000)."
Section 266h proscribes pimping (derives support from the earnings or proceeds of the person's prostitution).
Section 266h provides, in relevant part: "(a) 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, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years. [¶] (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, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows: [¶] . . . [¶] (2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years."
Section 266i proscribes pandering (procures another person for purpose of prostitution).
Section 266i provides, in relevant part: "(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years: [¶] (1) Procures another person for the purpose of prostitution. [¶] (2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute. [¶] (3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state. [¶] (4) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate. [¶] (5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution. [¶] (6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution. [¶] (b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows: [¶] . . . [¶] (2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years."
In order to convict a defendant of human trafficking, the prosecution is not required to prove that a minor engaged in an act of prostitution. Here, defendant intended that the victim engage in prostitution for his benefit, as evidenced, for example, by arranging her first date and all the text messages on his phone arranging her subsequent dates. That the victim did, in fact, engage in an act of prostitution was not required.
CALCRIM No. 1244 provides: "The defendant is charged [in Count ___ ] with (causing, inducing, or persuading / (and/or) attempting to cause, induce, or persuade) a minor to engage in a commercial sex act [in violation of Penal Code section 236.1(c)]. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant (caused/ [or] induced/ [or] persuaded) [or] attempted to (cause/ [or] induce/ [or] persuade)] another person to engage in a commercial sex act; [¶] 2. When the defendant acted, (he/she) intended to (commit/ [or] maintain) a [felony] violation of __________ <insert appropriate code section[s]>; AND [¶] 3. When the defendant did so, the other person was under 18 years of age. [¶] A commercial sex act is sexual conduct that takes place in exchange for anything of value. [¶] When you decide whether the defendant (caused/ [or] induced/ [or] persuaded) the other person to engage in a commercial sex act, consider all of the circumstances, including the age of the other person, (his/her) relationship to the defendant [or defendant's agent[s]], and the other person's handicap or disability, if any. [¶] [Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.] [¶] [The other person's consent is not a defense to this crime.] [¶] [Being mistaken about the other person's age is not a defense to this crime.]"
Here, the evidence showed that the victim had 20 dates with johns. Defendant was charged with and convicted of only six counts of aiding and abetting johns in committing lewd acts with the victim. (§ 288, subd. (a)—counts 14 through 19.) The dates occurred over several days. Defendant transported the victim from the motel to the inn for the purpose of aiding and abetting additional lewd acts with johns. At trial, the court stated that it had reviewed the text messages and "stopped at 35 phone numbers" on defendant's phone, arranging dates for the victim. In imposing sentence on counts 14 through 19, the trial court stated that those counts represented "six of the, at least, 20 John Does [(johns)] where sexual intercourse was arranged by the defendants." The trial court reasonably concluded that human trafficking and the lewd counts with the johns were divisible in time insofar as they occurred on different days and that separate punishments were warranted. (See Lopez, supra, 198 Cal.App.4th at pp. 717-718.) 3.0 Limited Remand Pursuant to Franklin
In supplemental briefing, defendant contends and the People concede that remand is required pursuant to Franklin, supra, 63 Cal.4th 261. Franklin determined the defendant's constitutional challenge to his 50-year-to-life sentence as cruel and unusual punishment under Miller v. Alabama (2012) 567 U.S. 460 was rendered moot by recent amendments to sections 3051 and 4801. (Franklin, supra, at p. 268.) Even so, the defendant in Franklin "raise[d] colorable concerns as to whether he was given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth," so the case was remanded in order for the trial court to "determine whether [the defendant] was afforded sufficient opportunity to make such a record at sentencing." (Id. at p. 269.)
Section 3051 requires the Board of Parole Hearings to conduct youth offender parole hearings during the 15th, 20th, or 25th year of incarceration for any prisoner who was under 25 years of age at the time of the controlling offense. (§ 3051, subd. (b)(1)-(3).) In conducting the parole hearings, the Board is required to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law." (§ 4801, subd. (c).)
Here, defendant was 19 years old at the time of the offenses; he was sentenced six months before the decision in Franklin to state prison for 28 years. As in Franklin, we remand the case to the trial court to determine whether defendant was afforded sufficient opportunity to make a record at sentencing of mitigating evidence tied to his youth, according to the following procedure:
At the time of defendant's sentencing, section 3051 initially applied only to youthful offenders under 18 years of age. (Former § 3051, subd. (a)(1), added by Stats. 2013, ch. 312, § 4.) The statute has been amended twice to reflect 23 and now 25 years of age, respectively.
"If the trial court determines that [the defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [The defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law' [citation]." (Franklin, supra, 63 Cal.4th at p. 284.)
DISPOSITION
The matter is remanded to the trial court in accordance with this opinion. In all other respects, the judgment is affirmed.
BUTZ, Acting P. J. We concur: MURRAY, J. RENNER, J.