Opinion
C064210 Super. Ct. No. 09F05359
09-12-2011
THE PEOPLE, Plaintiff and Respondent, v. MARK SWAGERTY, 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Mark Swagerty of causing, inducing, persuading, or encouraging L.F., a person under age 16, to become a prostitute (Pen. Code, § 266i, subd. (b)(2); count one; hereafter "pandering") and attempting to derive support from the earnings of a prostitute under age 16 (§§ 266h, subd. (b)(2), 664; count two; hereafter "attempted pimping").The trial court found that defendant had served two prior prison terms. (§ 667.5, subd. (b).) He was sentenced to state prison for 10 years, consisting of the upper term of eight years on count one plus two years for the prior prison terms. A concurrent upper term of four years was imposed on count two. Defendant was ordered to register as a sexual offender for the rest of his life. (§ 290 et seq.)
Further statutory references are to the Penal Code unless otherwise indicated.
The recent amendment to section 2933 does not entitle defendant to additional presentence credit because he was ordered to register as a sexual offender. (§§ 290 et seq., 2933, subd. (e)(3).)
On appeal, defendant contends the trial court erred by failing to instruct the jury sua sponte (1) that codefendant Stephanie Nicole Peterson was an accomplice as a matter of law, and (2) on lesser included offenses of count one. He also claims (3) the judgment must be reversed with directions to hold a Marsden hearing; (4) the concurrent sentence on count two must be stayed pursuant to section 654 (the Attorney General concedes this point); and (5) the order for mandatory lifetime sex offender registration violates principles of equal protection. We shall modify the judgment.
Peterson is not a party to this appeal.
People v. Marsden (1970) 2 Cal.3d 118.
FACTS
Prosecution Case-in-Chief
On January 15, 2009, parole agent John Edelman was working undercover with a Federal Bureau of Investigation (FBI) task force that targets juvenile prostitution. On that night, Edelman was responding to Internet advertisements for dates with prostitutes. At approximately 9:00 p.m., he responded to an advertisement for a prostitute named "Erotica," who directed him to meet her at a Sacramento motel room. When he arrived at the room, Stephanie Peterson answered the door and identified herself as Erotica.
Upon entering the motel room, Agent Edelman heard the sound of a person in the bathroom whom Peterson identified as her "homegirl." Edelman asked to see the girl and, when Peterson opened the bathroom door, he saw 14-year-old L.F., who was preparing to take a shower. L.F. closed the door after telling Edelman that she was getting ready for the next person.
L.F.'s mother testified that L.F. has a learning disability and suffers from severe depression and low self-esteem. In addition, she has problems with speech and shakes a lot, due to a stroke that she had suffered at age three. At the time of trial, L.F. was in the ninth grade and had "the IQ of a sixth grader."
Agent Edelman then returned to Peterson to discuss her fee; they agreed to an hour for $160. While they were negotiating, Peterson's cellular telephone kept ringing. She answered the phone, looked at Edelman with a surprised expression, and walked to the window. Peterson told the caller that she did not see any police outside. Then she hung up the phone, looked at Edelman, and asked him if he was a police officer; he told her no. Peterson then asked Edelman to lift his shirt and take down his pants, which he did. Next she asked him to uncover his private parts, which he refused to do. After hearing a knock, Peterson opened the motel room door and task force members took her into custody.
In the ensuing investigation, law enforcement learned that L.F. had met defendant through a social networking Web site. On January 9, 2009, defendant had sent L.F. a message introducing himself and inviting her to join his adult entertainment business, "Xtreme Girls Adult Entertainment." He wrote that he had seen L.F.'s photograph and that she was "hot hot hot." He explained that he was looking for someone interested in "dating - domination - fetish - escorting - body essentials - exotic shows - strippers - catering and hosting & business occasions." He added that she must be age 18 or older; that she would be required to provide identification; that he was interested in talking to her; and that, if she were interested, she should send him a photograph and contact information.
Shortly after receiving defendant's message, L.F. responded that she was "only 15." Defendant replied that it was not a crime for them to talk. L.F. told defendant that she wanted to become a porn star.
Defendant and L.F. continued trading messages. She gave him her telephone number, and she stored his telephone number in her cellular telephone under the name "Daddy." They exchanged photographs and spoke about her working for him. He told her that he would set her up with someone who would help her become a prostitute. She understood that she would split her earnings with him.
On January 14, 2009, defendant arranged a three-way telephone call between himself, L.F., and Peterson. The next day, L.F. met Peterson at a grocery store in Sacramento. Peterson and her client, "Roc," picked up L.F. and took her to the Sacramento motel. L.F. did not know Roc, but she remembered seeing Peterson walk down a high-prostitution area of Watt Avenue. When she was picked up, L.F. knew that they were going somewhere to prostitute but she did not know where it would be. After they arrived at the motel, the two women went inside while Roc waited outside. Peterson prepared to meet a client. L.F. went to the bathroom to shower while Peterson was with her client. However, the FBI arrived before L.F. met with any clients or engaged in prostitution. A search of her pocket yielded a note containing defendant's telephone number and the word "Daddy."
At trial, L.F. could not remember if there had been any plans for her to meet with clients that night. She testified that defendant was her pimp and admitted that she had never met him in person. Their only contact was via the Internet and telephone.
L.F. testified that she had never been a prostitute prior to January 15, 2009. She remembered telling an FBI agent that she and her best friend had engaged in sex with the understanding that he would pay her some money. However, she did not remember whether the sexual act had actually occurred.
L.F. did not remember telling the FBI agent about other occasions when she had had sex with strangers at a motel on Watt Avenue; nor did she remember whether those events had occurred. However, L.F. admitted that she had falsely accused a man of forcing her to have sex with him. She explained that she had been scared and, when she is scared, she occasionally does not tell the truth.
Peterson testified at trial. She was serving an 18-month prison sentence for her conviction in this case in accordance with her agreement with the district attorney's office. She admitted that she had several prior convictions for prostitution and other crimes of moral turpitude.
At the time of her arrest, Peterson was working as a prostitute. She advertised her services by walking the street and by placing advertisements on the Internet. Peterson was living at a motel and was earning $100 to $500 per day from prostitution.
On January 15, 2009, Peterson and Roc picked up L.F. and brought her back to Peterson's motel room. Roc waited outside the room because he was going to be Peterson's next customer after Agent Edelman.
Peterson discussed the circumstances of her introductions to defendant and L.F. In December 2008, a mutual contact introduced Peterson to defendant. They exchanged photographs and communicated by email, telephone, and text messaging. The two met in person a couple of times and had sex. They also spoke by telephone about money. Defendant became her pimp and referred clients to her. She was supposed to give him all of the money from her encounters. However, on some occasions, she secretly kept some of the money. When he learned of her deception he became upset. However, they both remained interested in making money. They agreed to help L.F. become a prostitute and to split the proceeds equally.
On January 13, 2009, defendant left Peterson a message stating that, in her words, L.F. was "ready to ho, ready to become a slut." Defendant and Peterson planned to photograph L.F., advertise her as a prostitute on an Internet site, and set up some dates for her. The next day, defendant sent Peterson a text message confirming that L.F. was ready to be a prostitute. Defendant gave L.F.'s telephone number to Peterson and told her to pick up L.F. Peterson called L.F. and they agreed to meet on January 15, 2009, at approximately 9:00 p.m. At the chosen time, Peterson picked up L.F. and took her to the motel room where they were taken into custody. Later that night, defendant sent several text messages to Peterson, attempting to contact her and find out what she was doing.
Although Peterson initially told law enforcement that she had never met defendant and that he was not her pimp, Peterson testified at trial that she made those statements to protect defendant.
Sacramento Police Detective Jeff Morris testified as an expert in pimping, pandering, and prostitution-related cases. He explained that pimps seek out younger girls to become prostitutes because they make more money for the pimp, they are easier to manipulate and control, and they rely on the pimps to rent motel rooms and drive them around. Pimps commonly use flattery and compliments, as well as promises of money and opportunities, to manipulate and induce young girls to become prostitutes. Based on his investigation, experience and training, Detective Morris opined that Peterson, a more experienced prostitute, was supervising and teaching L.F. about prostitution on the night of January 15, 2009.
Defense
Sacramento Sheriff's Deputy Stephen Atkinson testified about a prior (May 2009) investigation of L.F. He had interviewed her at a medical center regarding her sexual encounter with a 20-year-old male who later was arrested for unlawful sexual intercourse with a minor. L.F. initially reported that she and the male were friends and that they had engaged in nonconsensual conduct including sexual intercourse, oral copulation, and digital penetration. She claimed that she had told him to stop, but he grabbed her hands and had pulled down her clothes as he got on top of her. However, a few days later, Atkinson reinterviewed L.F., and this time she claimed that all the acts except the oral copulation were consensual and that she never told the male to stop. She further stated that she was engaged to the male and that they had had sexual intercourse on a prior occasion.
FBI Agent Winifred Fleming testified that she interviewed L.F. on the day of the January 2009 incident. L.F. told Fleming that she previously had seen Peterson walking on Watt Avenue. L.F. denied that she had engaged in prior acts of prostitution, but she admitted that she had engaged in prior acts of sexual intercourse. Following each incident, L.F. walked to a liquor store and gave money to an unknown white male with green eyes. She claimed that these incidents occurred in December 2008 and that they had been arranged by defendant. She had met defendant through an online networking Web site.
In late January 2009, Agent Fleming reinterviewed L.F., and she confirmed that her earlier statements were true. However, in April 2009, Fleming interviewed L.F. a third time. This time she asserted for the first time that her first communication with defendant was in January 2009, not December 2008.
L.F. told Agent Fleming that she had been involved in a three-way telephone conversation with defendant and Peterson. Defendant told Peterson that she would get half of L.F.'s earnings if she taught L.F. how to prostitute. Defendant told L.F. that she could make $100 to $200 per customer and that she might make more money depending upon the sexual act.
DISCUSSION
I
Defendant contends the trial court committed reversible error when it failed to instruct the jury sua sponte that Peterson was an accomplice as a matter of law. We find no prejudicial error.
Background
Peterson was originally charged as a codefendant in all counts. However, prior to defendant's trial, Peterson pleaded no contest to count two in exchange for a stipulated low term sentence of 18 months and dismissal of counts one and three (child endangerment; § 273a, subd. (a)).
The trial court instructed the jury using CALCRIM No. 334, which read in relevant part: "Before you may consider the testimony of Stephanie Peterson as evidence against the defendant, you must decide whether Stephanie Peterson was an accomplice to those crimes. . . . [¶] . . . [¶] If you decide that Stephanie Peterson was not an accomplice, then supporting evidence is not required and you should evaluate her testimony as you would that of any other witness. [¶] If you decide that Stephanie Peterson was an accomplice, then you may not convict the defendant based on her testimony alone. You may use the testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice's testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice's testimony; and [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime."
Analysis
"'"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]'" (People v. Breverman (1998) 19 Cal.4th 142, 154.)
These principles include section 1111, which provides, "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . ." The statute defines an accomplice as "one who is liable to prosecution for the identical offense charged against the defendant on trial . . . ." (§ 1111.)
"Whether a person is an accomplice within the meaning of section 1111 presents a factual question for the jury 'unless the evidence permits only a single inference.' [Citation.] Thus, a court can decide as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witness's criminal culpability are 'clear and undisputed.' [Citations.]" (People v. Williams (1997) 16 Cal.4th 635, 679.)
In this case, it was "clear and undisputed" that Peterson not only was "liable to prosecution for the identical offense[s] charged" against defendant, but she was in fact prosecuted in this case and entered a no contest plea to attempted pimping before defendant's jury was instructed. (§ 1111; italics added; People v. Williams, supra, 16 Cal.4th at p. 679.) Moreover, the evidence was undisputed, and permitted "only a single inference," that Peterson committed the present offenses. (Williams, supra, at p. 679.) The factual issue was whether she did so in conjunction with defendant or independent of him and "possibly in association with 'Roc' . . . ." In either scenario, Peterson was liable to prosecution and thus came within the statutory definition of an accomplice. Contrary to the Attorney General's argument, it was defendant's status, not Peterson's, which was disputed and subject to jury determination.
Thus, the trial court should have instructed the jury with CALCRIM No. 335, which states that if the charged crimes were committed, then the witness is an accomplice to those crimes and her testimony must be supported by independent, believable evidence that connects defendant to the crimes.
"A trial court's failure to instruct on accomplice liability under section 1111 is harmless if there is 'sufficient corroborating evidence in the record.' [Citation.] To corroborate the testimony of an accomplice, the prosecution must present 'independent evidence,' that is, evidence that 'tends to connect the defendant with the crime charged' without aid or assistance from the accomplice's testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] '"[T]he corroborative evidence may be slight and entitled to little consideration when standing alone." [Citation.]' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 562-563.)
Count one alleged that defendant caused, induced, persuaded, or encouraged L.F. to become a prostitute. L.F. testified that she obtained defendant's telephone number and stored it in her cellular telephone under the name "Daddy." They spoke about L.F. working for defendant as a prostitute, and they exchanged photographs. Defendant told L.F. that he would set her up with someone to help her start being a prostitute. This is ample corroboration of the "encouragement" required for count one.
Count two alleged that defendant attempted to derive support from the earnings of L.F., a prostitute under age 16. L.F. testified that she understood from her discussions, evidently with defendant and Peterson, that she would split her earnings with defendant. This is ample corroboration of defendant attempting to derive support from L.F.'s earnings.
For the first time in his reply brief, defendant argues the omission of CALCRIM No. 335 was prejudicial because "[t]he jury had to find beyond a reasonable doubt that [L.F.] was not currently a prostitute at the time the alleged crime occurred." (See part II, post.)We disagree.
L.F. claimed to have had some prior knowledge of Peterson, but Peterson did not claim to have had any prior knowledge of L.F. Peterson opined that L.F. "already knew how prostituting worked," but Peterson did not address--perhaps because she did not know--whether L.F. was currently, as opposed to previously, engaged in that profession. It is not reasonably probable that the jury's implied finding that L.F. was not currently a prostitute (part II, post) was based entirely upon Peterson's uncorroborated testimony, which cast little if any light upon the issue. The trial court's error in omitting CALCRIM No. 335 could not have been prejudicial.
II
Defendant contends the trial court erred by failing to instruct the jury sua sponte on two lesser included offenses of count one: attempted pandering, and contributing to the delinquency of a minor. We find no reversible error.
The trial court's obligation to instruct the jury sua sponte "'has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given.[]
The Attorney General claims "an instruction on attempted pandering or contributing to the delinquency of a minor would have been contrary to [defendant's] defense." This argument misses the mark because the instructional duty does not depend upon consistency with the proffered defense.
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[Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]' [Citations.]" (People v. Breverman, supra, 19 Cal.4th at pp. 154-155.)
Defendant contends "'the evidence raises a question as to whether all of the elements of'" count one were committed, because certain evidence suggested that L.F. was currently a prostitute. (People v. Breverman, supra, 19 Cal.4th at p. 154.) Defendant's argument is based upon People v. Wagner (2009) 170 Cal.App.4th 499, 502 (Wagner), which held the crime of inducing, etc. a person "to become a prostitute" is not committed if the person is currently a prostitute. However, in People v. Zambia (2011) 51 Cal.4th 965, the California Supreme Court disapproved Wagner and held that "the proscribed activity of encouraging someone 'to become a prostitute,' as set forth in section 266i, subdivision (a)(2), includes encouragement of someone who is already an active prostitute . . . ." (Id. at p. 981.) Thus, evidence suggesting that L.F. was currently a prostitute did not entitle defendant to a lesser offense instruction.
In any event, any error is harmless by any standard. At the request of the defense, the jury was instructed in accordance with Wagner as follows: "The defendant cannot be convicted of pandering if [L.F.] was currently a prostitute at the time of the alleged crime." By convicting defendant of pandering, the jury necessarily concluded that L.F. was not currently a prostitute, thus rejecting the contrary evidence on which defendant's argument relies. Because the jury rejected the factual predicate for the lesser included offense instructions, their omission could not have been prejudicial. (People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, and in People v. Blakely (2000) 23 Cal.4th 82, 89.)
III
Defendant contends the judgment must be "reversed with directions to hold a hearing, appoint new counsel, and consider a new trial motion grounded on ineffectiveness" of counsel. He further requests "an evidentiary hearing on counsel's alleged ineffective assistance . . . ." Neither point has merit.
Background
Following the verdict, defendant submitted to the trial court a letter seeking a new trial based on several alleged deficiencies that had occurred throughout the proceeding. Specifically, the letter claimed the prosecutor committed misconduct, defendant's trial counsel committed misconduct and was ineffective, there had been a "conflict of laws," and there had been a violation of his rights. The letter stated in part: "[Defendant's trial counsel] asserted Four [sic]times that I should have a [M]arsden hearing however supervisor Zeulinski advised me the courts would deny a [Marsden hearing] and it would only prolong trial."
At sentencing, the trial court acknowledged its receipt of defendant's letter. The court noted that, to the extent the letter sought a mistrial, it was untimely; and, to the extent it sought a mistrial or a new trial, it was not properly before the court because defendant was represented by counsel.
Before sentence was pronounced, defendant was allowed to address the court. First, he claimed his trial counsel had violated his speedy trial rights by requesting, and obtaining, good cause continuances for further investigation and preparation for trial. Next, he claimed his trial counsel had withheld evidence: a photograph of L.F. in her panties and a bra.
Moreover, defendant claimed his trial counsel had failed to call witnesses and erroneously had entered into stipulations regarding the authenticity of telephone records and other documentary evidence. In addition, defendant claimed that both the prosecutor and his trial counsel had "taint[ed] the exhibits," and that the prosecutor committed misconduct by allowing Peterson to lie on the witness stand.
Defendant next cited "[t]he ineffectiveness of attorney, who attempt [sic]to remove herself four times by assuming I needed a Marsden hearing, who failed to recall witnesses, and failed to represent [defendant] effectively."
Finally, defendant reiterated his complaint that the prosecutor failed to call custodians of records as witnesses to authenticate the documentary evidence. After listing these complaints, defendant asked that his "wrongful conviction be vacated for legal malpractice."
In response, the trial court noted that defendant's complaints were similar to the contentions he had raised in his letter. The court added: "The record does not support either prosecutorial misconduct, nor ineffective assistance of counsel. [¶] There were a number of stipulations that were entered into, which is not uncommon. It's a decision that was made by the attorneys, and in fact, from the perspective of the Court, it certainly saves a lot of time. [¶] My recollection is there were a number of other certified documents that were submitted as well."
The trial court then gave trial counsel an opportunity to respond, which she declined to do.
Analysis
"Although a formal motion is not required, the trial court's duty to conduct an inquiry into the reasons the defendant believes his or her attorney is incompetent arises only when the defendant (or in some instances counsel) provides '"at least some clear indication"' that the defendant wishes to substitute counsel. [Citations.]" (People v. Martinez (2009) 47 Cal.4th 399, 418, quoting People v. Dickey (2005) 35 Cal.4th 884, 920 (Dickey);accord, People v. Valdez (2004) 32 Cal.4th 73, 97; People v. Mendoza (2000) 24 Cal.4th 130, 157; People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8 (Lucky).)
In this case, defendant's letter arguably furnished "some" indication that he wished to substitute counsel. But following his oral statement, any indication that remained was far from "clear." (People v. Martinez, supra, 47 Cal.4th at p. 418.)
As noted, defendant's letter stated that his trial counsel had "asserted Four [sic] times that [he] should have a [M]arsden hearing however supervisor Zeulinski advised [defendant] the courts would deny a [Marsden;i.e., substitution of counsel] and [the unsuccessful hearing] would only prolong trial."
Because this passage follows defendant's claim that his trial counsel had been ineffective, the passage arguably means in context that counsel and defendant both believed a Marsden hearing should be held and substitute counsel appointed; however, no such hearing was sought, because counsel's supervisor believed that substitution would be denied and the trial would be prolonged. By tendering this passage to the court prior to sentencing, defendant arguably indicated that he still wished to substitute counsel. (People v. Martinez, supra, 47 Cal.4th at p. 418.)
However, defendant's ensuing remarks at the hearing cast doubt upon this interpretation of his writing. Defendant orally referred to "[t]he ineffectiveness of attorney, who attempt[ed] to remove herself four times by assuming [defendant] needed a [Marsden]hearing . . . ." (Italics added.) The word "assuming" signals disagreement with counsel's view; she assumed defendant needed the hearing, but he evidently did not agree.
In her brief, the Attorney General goes so far as to claim defendant "actually chastised trial counsel for her attempts to 'remove herself four times by assuming [defendant] needed a Marsden hearing.'" We need not go as far as the Attorney General. Even if defendant did not chastise trial counsel, he obscured whatever clarity had existed in his earlier written expression of desire to substitute counsel. On these facts, the trial court did not err by failing to conduct a Marsden hearing. (People v. Martinez, supra, 47 Cal.4th at p. 418.)
None of defendant's authorities requires a different result. In People v. Kelley (1997) 52 Cal.App.4th 568, the appellate court acknowledged that "Kelley did not expressly seek to have his attorney replaced," but it nevertheless concluded his "complaints related to his attorney's alleged incompetence were sufficient to trigger the need for a Marsden inquiry," because "his complaints plainly set forth an arguable case of the attorney's alleged incompetence, the requisite ground for replacement of counsel under Marsden." (Id. at p. 580.) Kelley did not cite or discuss Lucky, supra, 45 Cal.3d at page 281, footnote 8; nor did it consider whether the defendant had satisfied Lucky's requirement that he make at least some clear indication that he wanted a substitute attorney. In any event, the Kelley court could have believed the defendant's written request for a new trial was sufficiently clear; here, in contrast, the request was not.
Similarly, the court in People v. Mejia (2008) 159 Cal.App.4th 1081 failed to discuss Lucky or its progeny, which by that point included Dickey, supra, 35 Cal.4th at page 920. Moreover, Mejia distinguished a prior case on the ground that counsel therein had been "ambiguous. Trial counsel here was not." (Id. at p. 1086, citing People v. Rivers (1993) 20 Cal.App.4th 1040, 1051, fn. 7.) The present case is closer to Rivers than to Mejia because defendant's oral and written statements, taken together, made any request for substitution of counsel ambiguous at best.
Defendant relies on People v. Mendez (2008) 161 Cal.App.4th 1362 (Mendez),in which the defendant made a new trial motion based on competency of counsel but "never indicated 'he wanted another attorney.'" (Id. at pp. 1366-1367.) Mendez rejected the Attorney General's argument that defendant's lack of indication relieved the trial court of any duty to conduct a Marsden hearing. Instead, Mendez concluded the defendant's act of informing his trial counsel that he was making a new trial motion "'based on competency of counsel'" was adequate to put the court on notice of the defendant's request for a Marsden hearing. (Id. at p. 1367.)
This court has previously declined to follow Mendez because it did not "discuss[] Dickey or the rule of law contained therein . . . ." (People v. Richardson (2009) 171 Cal.App.4th 479, 485 (Richardson).)In other words, Mendez never considered whether the defendant's mere act of informing his trial counsel of an ensuing new trial motion claiming ineffective counsel constituted sufficient "'clear indication'" that he wished to substitute counsel. (People v. Martinez, supra, 47 Cal.4th at p. 418.)
In People v. Reed (2010) 183 Cal.App.4th 1137 (Reed),the court held that the defendant's "expressed desire to pursue a motion for new trial based on counsel's incompetence," plus "the fact that defense counsel said, 'I cannot make it for him,'" viewed in the context of the defendant's prior unsuccessful Marsden motions, made it sufficiently clear that he was requesting substitute counsel. (Id. at pp. 1145-1146.)
Reed is distinguishable because only the first of its three elements (expressed desire for a new trial) arguably is present in this case (Reed, supra, 183 Cal.App.4th at pp. 1145-1146); and the force of that element is diminished, not enhanced, by defendant's oral reference to trial counsel merely "assuming" that he "needed a Marsden hearing." Nothing in Reed suggests that defendant's request for substitute counsel was clear enough to compel a Marsden hearing.
Reed went on to "respectfully disagree" with Richardson's "conclusion that Mendez is inconsistent with the Supreme Court's holding in Dickey." (Reed, supra, 183 Cal.App.4th at p. 1148.) As noted, the "inconsisten[cy]" we had identified in Richardson consists of Mendez's failure to discuss Dickey or its rule of law. (Richardson, supra, 171 Cal.App.4th at p. 485.) Nothing in Reed points us to any discussion of Dickey that we had overlooked.
Nor does Reed suggest that the Mendez defendant's mere act of informing his trial counsel of an ensuing new trial motion claiming ineffective counsel constituted sufficient "'clear indication'" that he wished to substitute counsel. (People v. Martinez, supra, 47 Cal.4th at p. 418.) Reed had no occasion to so suggest, because additional factors (prior unsuccessful Marsden motions and counsel's statement that he cannot make a motion based on his own incompetence) were present in Reed that had not been present in Mendez. We find nothing in Reed that dissuades us from our analysis in Richardson. The trial court's failure to order a Marsden hearing was not error. Because no hearing was required, we have no occasion to consider defendant's claim that such hearing must take the form of an evidentiary hearing.
IV
Defendant contends, and the Attorney General concedes, the concurrent sentence on count two must be stayed pursuant to section 654. We accept the Attorney General's concession.
Section 654 provides in relevant part: "An act or omission that is 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."
"'The proscription against double punishment in section 654 is applicable where there is a course of conduct which . . . comprises an indivisible transaction punishable under more than one statute . . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.' [Citation.] 'The defendant's intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentenced. [Citation.]' [Citation.]" (People v. Coleman (1989) 48 Cal.3d 112, 162; see People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
In this case, the evidence showed that the acts of pandering and attempted pimping occurred at the same time (on or about January 15, 2009) and that both acts were incidental to the same objective, i.e., for defendant and Peterson to make money from L.F.'s prostitution services. We shall modify the judgment to stay sentence on count two. (E.g., People v. Pena (1992) 7 Cal.App.4th 1294, 1312.)
V
Defendant contends the order for mandatory lifetime sex offender registration violates federal and state principles of equal protection because "he would not have faced mandatory lifetime registration" if he "had engaged in unlawful sexual intercourse, oral copulation, or penetration with" L.F. (Citing People v. Hofsheier (2006) 37 Cal.4th 1185, 1192-1193, 1207 and People v. Ranscht (2009) 173 Cal.App.4th 1369, 1371, 1375.) We disagree.
Defendant has forfeited his contention by failing to object to the registration requirement in the trial court when the prosecutor proposed it or when the court imposed it. (People v. McClellan (1993) 6 Cal.4th 367, 377.)
DISPOSITION
The judgment is modified by staying sentence on count two pursuant to section 654. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
BLEASE, Acting P. J.
We concur:
BUTZ, J.
DUARTE, J.