Filed 11/16/18 P. v. Graves CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Matthew Graves appeals his convictions for pimping a minor 16 years of age or older (Pen. Code, § 266h, subd. (b)(1))[1] and related charges. His sole challenge on appeal is prosecutorial misconduct during closing arguments. We affirm.

BACKGROUND

Jane Doe testified she met appellant in October 2015, when she was 16 years old. She was working as a prostitute before she met appellant, and he became her pimp shortly after they met. During the time Doe worked for appellant, she also had sex with appellant and believed she was in love with him. At appellant’s suggestion, Doe got a tattoo on her finger that read “MG50”—“MG” for appellant’s initials and “50” for his nickname.

Doe testified appellant took photographs of Doe and used them to create an online advertisement for prostitution. Doe arranged to meet men over the phone, and appellant would drive her to hotel rooms where she would engage in prostitution. Afterwards, she gave the money she received to appellant. Doe also received drugs from clients, including crystal methamphetamine, LSD, and cocaine. If Doe did not make enough money, appellant would hit and push her. On one occasion, appellant drove Doe to a client’s house but Doe, intoxicated and scared, refused to get out of the car. Appellant hit her multiple times. On another occasion, Doe neglected to count the money she received from a client. Appellant indicated the client had not given Doe enough money, and hit and pushed her.

Doe’s grandmother and primary caregiver testified that, between October and December 2015, Doe was away from home for a week at a time or more. When Doe periodically returned home, she had bruises. Doe and her grandmother fought about Doe’s drug use and dropping out of school. Doe once falsely claimed her grandmother beat her, because she was hoping to be placed in a foster home.

On December 8, 2015, Doe and appellant exchanged a series of text messages, which were subsequently recovered from appellant’s phone by law enforcement. In the texts, Doe explained she had been in the hospital due to a panic attack and was scared appellant would not take her back because of “dis stupid shit.” Appellant responded that he could come pick her up, and if she was going to “stop acting stupid” and “get this money then it’s cool.” After discussing when appellant would get Doe, she texted him: “ohk [sic] but can you like not beat my ass for the one time??” Appellant responded, “Ok I won’t beat you.”

Doe used crystal methamphetamine, LSD, and cocaine that night and did not remember exactly what happened. However, the next morning she woke up in a hotel with a black eye and numerous bruises, and she testified appellant caused the injuries. Doe took a hotel shuttle to a nearby airport, and airport security called an ambulance.

That day, Doe told law enforcement that her boyfriend and pimp, who she identified as appellant, had beaten her the night before at the Red Roof Inn. In subsequent interviews, Doe told police that appellant was not her pimp and instead was like a brother to her and took care of her. She told police her injuries were from another woman, and also said she had gotten into a fight with some gang members. At trial, Doe testified she made these subsequent statements to protect appellant.

On December 9, 2015, Police Corporal Jason Orloff went to the Red Roof Inn and was informed by hotel staff that appellant was not checked in at the time.[2] The next day, hotel staff told police appellant had returned to the hotel. A hotel employee also gave Corporal Orloff a screenshot of an internet advertisement for prostitution displaying several photographs of Doe and the phone number appellant had given when he checked in to the hotel.[3]

Corporal Orloff arrested appellant on an unrelated warrant and appellant agreed to be interviewed. Appellant initially denied knowing Doe, but then admitted he knew her. Appellant claimed he had met Doe only a few weeks earlier and denied being her pimp or having sex with her. Appellant said he had no idea why she had a tattoo of his initials and nickname, and she must be crazy and in love with him. When Corporal Orloff showed him the prostitution ad displaying appellant’s phone number, appellant claimed he had never seen it before and had no idea why his phone number was on the ad. The photographs of Doe featured in the prostitution ad were subsequently recovered from appellant’s phone. Also recovered from appellant’s phone were numerous text message exchanges with Doe consistent with a pimp/prostitute relationship, including messages where appellant told her to go earn him money.[4]

In March 2016, appellant called Doe from jail; a recording of the call was played for the jury. Appellant told Doe to “stay away” from people asking her questions and not attend any “court dates.” In the same month, appellant made multiple phone calls to a female named “Na-Na,” who Doe described as appellant’s “main girl,” asking her to contact Doe so the charges against him would be dismissed. Doe testified that after appellant’s arrest, Na-Na told Doe to write a letter exonerating appellant. Doe wrote a letter stating appellant was innocent, she had been a prostitute “for no one but [herself],” and she had been lying to the police when she incriminated him.

An expert in pimping, pandering, and human trafficking testified that victims of human trafficking are typically very young and may suffer from mental health or substance abuse issues. Victims often consider their pimps to be a source of stability, security, and love.

The jury convicted appellant of the charged crimes of pimping a minor 16 years or older (§ 266h, subd. (b)(1)), pandering a minor 16 years or older (§ 266i, subd. (b)(1)), forcible human trafficking of a minor for a sex act (§ 236.1, subd. (c)(2)), and witness intimidation (§ 136.1, subd. (b)(2)). The trial court found true a prior strike allegation, and sentenced appellant to an aggregate prison term of 34 years to life.

DISCUSSION

Appellant contends the prosecutor committed misconduct during closing arguments by making statements that undermined the reasonable doubt standard and the presumption of innocence. Appellant concedes that, because defense counsel below did not object to the statements, a direct challenge on appeal is forfeited. (See People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno) [challenge to prosecutor’s misstatement of the reasonable doubt standard forfeited by trial counsel’s failure to object].) Instead, he contends the failure to object constitutes ineffective assistance of counsel. We conclude that any deficient performance by trial counsel in failing to object was not prejudicial.

I. The Challenged Statements

Appellant relies on the following portions of the prosecutor’s closing arguments, made at various points during the prosecutor’s initial and rebuttal remarks, with the assertedly objectionable statements italicized:

“There is an instruction where you are told you have to look at the, you know, evidence and totality of the circumstances. And I’m just going to stress that again. Don’t go in there and look at each individual item and say, does this prove beyond a reasonable doubt. No. You have to look at all of it and say, does all of this prove beyond a reasonable doubt that the defendant is guilty or do -- can you reach a logical conclusion, reasonable conclusion that points to innocence, even despite all the evidence. And the answer is no.”

“The People have to put on enough evidence to convince you beyond a reasonable doubt that the defendant is guilty as charged. Not beyond any doubt, not beyond all doubt. And the facts -- the facts of this case speak for themselves. The text messages that the defendant has written. The testimony that Jane Doe gave. When you look at all of that together, there is no reasonable conclusion that points to innocence, and I’m going to ask you to find him guilty on all counts as charged.”

“Beyond a reasonable doubt means you have an abiding conviction based on the evidence. Based on the evidence, you think to yourself, yes, I think he was pimping her out, he was prostituting her, he was human trafficking, and there was force, fear, coercion involved. And I’m basing that not because he’s a young guy, not because he’s black, not because of anything else but based on the evidence. If you believe that, then the case has been proven to you beyond a reasonable doubt.”

“The totality of all the evidence proves his guilt. And please remember that when you are making that decision about whether or not the evidence points to guilt or innocence, conclusion has to be reasonable pointing to innocence given all the evidence.”

Appellant argues these statements “diminished the proof beyond a reasonable doubt standard, impermissibly shifted the burden of proof beyond a reasonable doubt, and undermined the presumption of innocence.”

II. Ineffective Assistance of Counsel

“ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ [Citation.] . . . He bears the burden of showing by a preponderance of the evidence that (1) counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficiencies resulted in prejudice.” (Centeno, supra, 60 Cal.4th at p. 674.) To prove prejudice, a defendant must show “a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” (Id. at p. 676.)

We will assume, without deciding, that trial counsel’s failure to object constituted deficient performance, and turn to the question of prejudice. Appellant contends that counsel’s deficiency was prejudicial only with respect to the forcible human trafficking charge—he explicitly concedes he cannot prove prejudice with respect to the pimping and pandering charges, and forfeits any challenge with respect to the witness intimidation charge by failing to argue it on appeal.

Appellant argues the failure to object was prejudicial with respect to the element that the human trafficking involved “force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim . . . .” (§ 236.1, subd. (c)(2).)[5] Appellant first argues Doe had been a prostitute before she met appellant, and therefore appellant did not force her to be a prostitute. Even assuming this was so at the beginning of their pimp/prostitute relationship, Doe testified to at least one incident when appellant hit her because she refused to see a client for a prearranged meeting. Similarly, appellant’s argument that, because Doe and appellant were “involved in a dating relationship,” the jury could conclude that any physical abuse was “a more common domestic violence situation involving a couple who were dating,” is unpersuasive. Doe specifically testified that appellant hit her when she refused to see a client and when she did not make enough money from prostitution. This physical abuse was not related to any “dating relationship” between Doe and appellant.

Appellant then argues Doe was the sole witness testifying that appellant physically abused her and the jury had multiple reasons to doubt her credibility: she had performed prostitution, a crime of moral turpitude; she was a heavy drug user during the time appellant was her pimp; prior to trial, she made inconsistent statements about whether appellant physically abused her; and she admitted that she had falsely accused her grandmother of violence. Doe’s testimony about appellant’s physical abuse was corroborated by the text message exchange between her and appellant, when she asked him to “not beat my ass for the one time,” and by her documented injuries the following day when she ran away from appellant. Although her story was inconsistent over time, her initial statement to law enforcement was that appellant caused her injuries; moreover, appellant does not challenge the jury finding that appellant attempted to intimidate Doe into exonerating him. Finally, as appellant concedes, there was ample corroboration of her testimony that appellant was her pimp, and appellant suggests no reason why the jury would believe Doe’s testimony about pimping and pandering but disbelieve it as to appellant’s physical abuse.

In sum, we see no reasonable probability that, had appellant’s trial counsel objected to the prosecutor’s statements during closing arguments, the verdict on the forcible human trafficking charge would have been more favorable to appellant.

DISPOSITION

The judgment is affirmed.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.

(A152219)