Filed 4/6/22 P. v. Mahjoob CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan Schneider, Judge. Affirmed.

Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant Mahrad Mahjoob.

Mary Jo Strnad, under appointment by the Court of Appeal, for Defendant and Appellant Jason Tapia.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy Attorney General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

Codefendants Mahrad Mahjoob and Jason Tapia were tried together before separate juries. They appeal from judgments entered after their juries convicted them of human trafficking of a minor, in violation of Penal Code section 236.1, subdivision (c)(1).[1] Mahjoob asserts instructional error on the elements of human trafficking and insufficient evidence to support his conviction. Tapia asserts he was convicted of an offense with which he was not charged, the trial court erred in refusing to instruct his jury with the more inclusive instruction for circumstantial evidence, and the prosecutor committed misconduct.

We affirm both judgments.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

The information charged Mahjoob with a single count of human trafficking of a minor for a commercial sex act (§ 236.1(c)(1)) with intent to violate section 266i, the pandering statute.[2]

The information charged Tapia with a single count of human trafficking of a minor for a commercial sex act with intent to violate section 266h, the pimping statute. In addition, the information alleged Tapia had a serious or violent felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12) and served a prior prison term within the meaning of section 667.5, subdivision (b).

Mahjoob and Tapia pleaded not guilty to the charges.

2. The Prosecution’s Case

Mahjoob and Tapia were tried together before separate juries.[3] The People’s witnesses included Cloey, Ahmad Khan, the forensic nurse who examined Cloey, and police officers and detectives who responded to or interviewed witnesses after the incident with Khan, which took place overnight between May 13 and May 14, 2017. The police officers and detectives also provided expert testimony about commercial sex work. The trial court admitted into evidence complete or excerpted audio recordings and transcripts of field or station interviews with Cloey, Khan and Mahjoob,[4] as well as the audio recording and transcript of a conversation between Tapia, Mahjoob and Officer Torres, who was undercover, posing as a sex worker, the night of the incident.

1. Background

Cloey was 15 years old when she ran away from home on May 6, 2017, and went to stay with her friend. She began using methamphetamine at 15 but had been sober for a few months before May 2017. At her friend’s home and on her friend’s phone, Cloey used a messenger application, Kik.

Mahjoob, who called himself Mike, contacted Cloey through Kik. Cloey said she was 16 years old, and Mahjoob said he was in his thirties. Cloey explained to Mahjoob that she was trying not to use drugs anymore. Mahjoob told Cloey he could pick her up and let her stay at his home, and Cloey gave Mahjoob her friend’s address. Mahjoob picked up Cloey, and while in the car, Cloey smoked methamphetamine that Mahjoob gave her.

They arrived at an apartment that belonged to Mahjoob’s friend Crystal. Cloey was high from smoking methamphetamine in the car. Mahjoob told Cloey she could take a shower. While Cloey was showering, Mahjoob entered the shower and had sex with Cloey. Cloey testified she had a choice to say no but did not do so because she felt obligated to have sex with Mahjoob because he was providing her with a place to stay, and she thought she would not be able to stay if she did not have sex with him.

After Cloey got out of the shower, she met Crystal, who was surprised Cloey was there and began yelling. Cloey offered to leave, but Crystal told her to come downstairs, where Mahjoob, Crystal, and Cloey smoked methamphetamine and talked.[5] The next morning, Crystal wanted Mahjoob and Cloey to leave her home, so she took them to the train station.

Cloey and Mahjoob took the train and bus to Burbank. At the North Hollywood station of the Metro Orange Line, Mahjoob and Cloey ran into Ahmad Khan, also known as “Pops.” Khan had known Mahjoob for five or six months. Khan had paid Mahjoob for sex with two women in the past. Cloey was the third woman that Mahjoob introduced to Khan. After Khan spoke with Mahjoob, Khan thought Mahjoob was pimping Cloey, and Khan agreed to have Cloey be brought to his room.

Mahjoob and Cloey went to the home of Mahjoob’s friend Hamlet. Cloey met Tapia there, and they all smoked methamphetamine. Cloey stayed at Hamlet’s house for several days and used methamphetamine during her stay. Cloey told Tapia she no longer wanted to stay at Hamlet’s home. So, they left and ran into Mahjoob at a convenience store, where he bought food for them. Then, they all went to Mahjoob’s motel room. Within five minutes of arriving, Mahjoob made a phone call. After the call, Mahjoob and Tapia talked amongst themselves, but Cloey was not paying attention to them. After about 10 minutes, they all left to go to Khan’s motel room.

Mahjoob and Tapia went to the Starlight Motel to take Cloey to Khan’s room. Mahjoob wanted Khan to pay $150 for Cloey. But Khan thought it was too much and gave Mahjoob $60 or $80 upfront. Mahjoob and Tapia left Cloey alone with Khan. After Mahjoob and Tapia left the room, the motel manager kicked them off the property. Khan told Cloey that he wanted to have sex with her, which made her feel uncomfortable. Cloey did cocaine, and after speaking for less than an hour, Cloey told Khan her ride was there, and she had to leave. When Khan complained to Cloey that they had not done anything yet, Cloey promised to return the next day. Khan gave Cloey a cell phone, which Cloey explained, “[H]e just wanted to hit me up for business later,” meaning to have sex.

While Cloey was with Khan, Mahjoob and Tapia were waiting on the sidewalk near the motel. Officer Torres was working undercover as a sex worker nearby, and Mahjoob and Tapia approached her. The audio recording of their conversation was played for the jury and admitted into evidence. When the officer asked, “What’s up?” Tapia responded, “Working.” They continued talking. Tapia explained, “He [Mahjoob] got a [sic] Arabian uncle in there. We got money. We got our homegirl in there but she ain’t trying to be in there.” Officer Torres asked where the “homegirl” was, and Tapia responded at the Starlight Motel. Officer Torres inquired further about their “homegirl” “working,” and Tapia responded, “She is trying. I’m trying to lace her up on the game, you know what I mean, but . . . it is what it is.” When Officer Torres commented that it was “slow in the street still,” Tapia asked Mahjoob to call Khan to see if “he needs more company . . . .” Mahjoob went to make a phone call. Tapia continued speaking with Officer Torres: “I got the homegirl in there working! Trying, shit, but she, she wasn’t feeling it, or whatever. She just said she wasn’t feeling it from the beginning.” Tapia continued, “I told her look, go in there and, you know, you not feeling it, whatever . . . . Breaking her in, breaking her in . . . .” Officer Torres asked, “She not having it?”, and Tapia responded, “Yeah. This is her first time.”

Mahjoob and Tapia walked away from the officer, got into a car and drove behind the Starlight Motel. Cloey, Mahjoob and Tapia eventually left the motel, got into a car, and were pulled over by the police.

2. Cloey’s testimony

Cloey testified about how she met Mahjoob and how they spent the first few days after he picked her up. Cloey testified that while at Crystal’s house, Mahjoob had sex with her in the shower and that she “let him” because she felt obligated “in a way.” Cloey explained that she had smoked methamphetamine at Crystal’s house as well as Hamlet’s house and that Mahjoob had supplied the drugs to her.

After leaving Hamlet’s, Cloey, Mahjoob and Tapia went to Mahjoob’s motel room. Cloey testified Mahjoob made a phone call when they got to his motel room. Mahjoob and Tapia talked amongst themselves after the phone call; Cloey “wasn’t paying attention” to what they talked about. Finally, a rideshare vehicle, which Cloey believed was arranged by Khan, arrived to pick up Mahjoob, Tapia and Cloey to go to Khan’s motel room. Cloey was still high from smoking methamphetamine.

When they arrived at the Starlight Motel, Mahjoob and Tapia took Cloey “straight to [Khan’s] room.” Cloey recalled some discussion about money but could not remember any conversation details. After refreshing her recollection with the transcript from her interview with Detective Pinner, Cloey confirmed Khan gave Mahjoob and Tapia $80. Mahjoob and Tapia then left the room. Once alone with Khan, Khan told Cloey he wanted to have sex with her, which made her feel “uncomfortable.” She asked Khan to call Mahjoob and Tapia to pick her up. Khan made the call and, during the call, complained that Cloey would not have sex with him. Cloey thought Khan seemed upset.

The People played clips from Cloey’s interviews with Detective Pinner. She explained that her statement during the interview that “it’s like I didn’t know, until now, what they were actually doing . . . probably because of the drugs,” meant that “at first I didn’t . . . know that they would have wanted me to go there and have sex with him, but at the time [of the interview] I realized.”

On cross-examination, when asked whether she felt as though she was being sold for sex services when she met with Khan the first time, Cloey said no. When she was asked whether there was a plan of what was supposed to happen once she went to see Khan, Cloey responded no. But Cloey testified that she had a conversation with Mahjoob and Tapia about going to Khan’s room and getting money and a phone. When asked whether “this whole thing was a plan for the three of you to re-up” and “to get a phone,” Cloey said yes. Cloey also did not know that Mahjoob and Tapia had “made a deal with [Khan] for $150 to have sex with [her].”

Cloey also testified that she never asked Mahjoob or Tapia to take her home during the entire stay, that they never told her she could not leave or call home and that she stayed with them because she wanted to be there.

Audio clips of Cloey’s field and station interviews were played for the jury.[6] In the excerpts of Cloey’s interview with Detective Pinner and a female officer, Cloey said the defendants dropped her off at Khan’s room. Cloey said that Khan wanted to have sex, but she told him no. The female officer asked, “These two guys are pimping you out. Right? They want you to have sex. Right? Yes?” Cloey responded, “Yeah.” In response to the question, “So, you’ve had sex for them before?” Cloey said, “I guess I have.” The female officer asked, “But they’ve told you to go have sex with guys in motel rooms in exchange for drugs and sex—for money.” Cloey responded, “The other time, yeah.” Cloey’s recollection of how many times she had had sex and with whom over the last several weeks was hazy, but she recalled having sex with Mahjoob once “like last week.”

Cloey explained she ended up in Khan’s room that night because of “[t]he guys, they, their plan.” Cloey said, “[T]hey wanted to re-up,” and they were interested in getting money and drugs. Cloey explained that Khan had given her drugs in an envelope and a phone. Khan gave her a phone because “he just wanted to hit me up for business later.” The female officer asked, “So you can go visit him again? But for sex, right?” Cloey responded, “Yeah.”

Detectives interviewed Cloey again at the station. The transcript noted Cloey was mumbling and speaking inaudibly. Cloey had been sleeping, and the detectives observed she had been more talkative in the field. At the station, Cloey thought she had been with Mahjoob and Tapia for “like two weeks.” Cloey initially denied having sex with Mahjoob or Tapia but later said she had sex with Mahjoob once. Cloey denied she had been dropped off at the Starlight Motel for a “sex date” and described it as “like business, like I was supposed to go there and I was supposed to get the phone and the drugs and stuff.” Khan wore a t-shirt and shorts. Cloey confirmed they did not have sex but that when she was leaving, Khan gave her a “little” kiss on her lips. Cloey said Mahjoob and Tapia did not tell her they wanted her to have sex with Khan.

3. Khan’s testimony

Khan was granted immunity from prosecution in connection with the incident. Khan testified that he first saw Mahjoob and Cloey at an Orange Line metro station. Mahjoob asked Khan if he wanted Cloey sexually, and Khan responded yes. Khan was under the impression that Mahjoob was “in control of Cloey” and that Mahjoob “had her to offer” “to whoever would pay.” Khan arranged for Mahjoob to bring Cloey to Khan’s motel room, and they discussed payment.

Mahjoob brought Cloey to Khan’s motel room. Although Khan usually paid after sexual services have been performed, he paid Mahjoob $60 upfront because he wanted the money for a motel room for Cloey. Once Mahjoob left, Cloey began to cry. Khan realized she was young and asked what her age was. Cloey told Khan she was “working to get a room.” Based on his experience with commercial sex workers, he understood working to mean “doing sexual favors for money.” Based on his experience with drugs, he thought Cloey was under the influence of drugs. Khan testified he did not recall getting a call from anyone while Cloey was in the room with him.

Two excerpts of officer interviews with Khan were played for the jury and admitted into evidence. Khan had met Mahjoob through a friend about six months earlier. Khan saw Mahjoob and Cloey at the Orange Line metro station. Mahjoob asked Khan if he liked Cloey and told Khan he “could have her.” Khan interpreted this to mean “he was pimping her.” Mahjoob did not “name a price.”

Khan attended his mother’s funeral that day. When he got back to his motel room, Mahjoob called him to let Khan know he was nearby. Khan told Mahjoob, “I’m not gonna go to your room with you there to do anything,” and asked Mahjoob to come to his room. Mahjoob showed up with Cloey, and Khan and Mahjoob discussed payment. Mahjoob wanted to be paid up front, but Khan wanted to pay afterward. Mahjoob said it would cost $150 for sex with Cloey, and Khan responded that was too much. Khan wanted to speak with Cloey directly to “make a different deal.” Khan described Cloey as “innocent,” “scared,” and “high on something.” Although Cloey told him she was 18 years old, Khan thought she looked “like 16 or 17.” Cloey wanted to leave, and Khan said, “But we have not done anything.” (Emphasis in original.) Cloey said, “But how about if I promise to come tomorrow,” and Khan agreed.

It is unclear from the interview if Cloey called a rideshare service or if Khan called Mahjoob and asked him to send a cab for Cloey. Khan thought Mahjoob was trying to “rescu[e] [Cloey] from the Armenian guy.” But when the officer asked how Mahjoob could be rescuing her if he’s trying to sell her to Khan for sex, Khan responded, “Yeah, yeah, he’s pimp, he’s trying to become a pimp. He’s not pimp, he’s a doper, he’s a doper.” Khan said, “This is the fourth time he’s offered [a white girl].”

4. Forensic nurse Jessica Bain’s testimony

Bain, a forensic nurse examiner, specializing in treating sexual assault victims, examined Cloey on May 14, 2017. Bain wrote down verbatim statements made by Cloey during the examination, including, “Mike wanted me to make him money and get him drugs. I went to a motel with Mike. Pops asked if I wanted to have sex, and I told him no.”

5. Officer Torres’s testimony

Officer Torres testified that she had been with the Los Angeles Police Department for six years and was working as an undercover officer in the human trafficking unit at the time of the incident. Officer Torres testified that Sepulveda Boulevard, where the Starlight Motel is located, was “an area well known as a track which means it is well known for elicit [sic] behavior, in this case prostitution . . . .”

Officer Torres testified about the meaning of Tapia’s words in the context of human trafficking. She explained that “the game” referred to the culture of pimping and pandering, that “‘lace up’ is street vernacular for teaching someone to work as a prostitute,” and that “to ‘break’ someone in” meant “introducing them to this life-style [sic] and . . . essentially teaching them how to be a prostitute by way of doing the job.” She defined “business” as “providing dates or if it’s a john . . . purchasing a sex act from a prostitute.” She said, “working” referred to a prostitute looking for a “date” with someone willing to pay for sexual favors. She also explained that “company” referred to someone who “wanted another date” and that “not feeling it” referred to a prostitute who “did not want to perform what was expected.” When asked if, based on her conversation with Tapia and Mahjoob, she was “absolutely 100 percent sure that this was referring to prostitution and nothing else,” Officer Torres responded unequivocally, “Yes.”

6. Detective Pinner’s testimony

Detective Pinner explained that pimps often used sex to groom the prostitutes. Pimps made sure the prostitutes were dependent on them. Pimps usually took sex workers to places where prostitution was common. The Sepulveda Corridor, where Cloey was taken, was a prime location for breaking in a commercial sex worker. Detective Pinner said that a “teenage white girl” was the “most valuable commodity in terms of a commercial sex worker.” He also noted that it was common for the term “sex” never to be used when discussing commercial sex acts, that “johns” were customers, and that a pimp usually got paid directly for the prostitute’s sex acts.

Detective Pinner also testified that words like “business,” “working,” and “companionship” were used to refer to the process of exchanging money or anything of value for a sex act. Pinner explained that a “hustle” was when a woman meets with a man and does things other than sexual intercourse. Detective Pinner acknowledged that some human trafficking terms could also mean something else in different contexts.

7. Mahjoob’s interview

During Detective Pinner’s examination, the People played, only for Mahjoob’s jury, an audio recording of Mahjoob being questioned by Detective Pinner.

Mahjoob initially said that Cloey was Tapia’s friend, that he wasn’t “too sure” about her name, and he thought Cloey was staying at the motel or visiting a friend. Mahjoob eventually explained he met Cloey online and picked her up because she seemed in trouble. Cloey told Mahjoob she was 18 years old, but Mahjoob thought she might be underage based on her appearance. Mahjoob explained they went to his friend Crystal’s house and then to Burbank to another friend’s house. Mahjoob denied having sex with Cloey.

The detective described the doorway negotiation at Khan’s motel room, which Mahjoob did not readily acknowledge. Mahjoob said they went to Khan so Cloey could get a phone. Mahjoob said Khan “likes, you know just the company of women . . . but we never discussed him having sex and that definitely wasn’t like something that . . . anything either of them would [do] . . . .” Mahjoob said he told Cloey “she doesn’t have to do anything she doesn’t want to do, she just has to like entertain the guy you know he likes company and you, I always knew that he likes to be around women.” Mahjoob told Cloey “she didn’t have to have any kind of sex” with Khan, and she could “just . . . go talk to Pops and he’s got a phone for you and if you don’t want to be there you can leave . . . .” Mahjoob denied that Khan had told him that he wanted to have sex with Cloey.

Mahjoob recounted that before going to Khan’s, Tapia told Cloey what Tapia’s “baby mama” does, which is “lead the guys on to believe there’s something going on like that, I guess, and then you know, as soon as they bring up some, such as you know, . . . the girl can . . . say that’s she’s not . . . trying to do anything like that and she can leave.”

As for Tapia’s conversation with Officer Torres, Mahjoob said Tapia was being “silly” and not “serious-wise” and was trying to “impress her . . . .” Mahjoob said Tapia kept asking him to call Khan to see if Khan wanted “some more company.” Mahjoob explained he did it because he “thought [he] was helping the other lady, that, that’s what her profession is.”

3. The Defense Case

Mahjoob did not testify. Mahjoob played for the jury two excerpts of interviews with Cloey during her cross-examination, which were admitted into evidence. A complete transcript of Cloey’s interview at the station also was admitted into evidence.

1. Excerpts of Cloey’s interviews

In one excerpt of an interview with Cloey, Detective Pinner asked, “Okay and why did you get dropped off there? For a sex date?” Cloey responded, “NO.” (Emphasis in transcript.) Cloey explained, “It was like business, like I was supposed to go there and I was supposed to get the phone and the drugs and stuff.” She did not think she had to do anything for it.

In another excerpt of an interview with Cloey, Detective Pinner asked if Mahjoob or Tapia told her they wanted her to have sex with Khan. Cloey said no. She described what she was doing as “hustling” and that this was her first hustle.

2. Tapia’s testimony

Tapia testified before both juries. Tapia testified that he, Mahjoob and Cloey came up with a plan to “hustle” Khan. Specifically, Cloey would meet Khan in his room, “play the part, take the money, the phone and drugs and leave the room.” Her reason for leaving the room would be to smoke a cigarette. Tapia testified that Cloey brought up not wanting to have sex with Khan, and they discussed “[f]or her not to have sex.”

On cross-examination, Tapia admitted he knew Khan was a purchaser of sex services from commercial sex workers, Khan was trying to purchase sex services from Cloey, and a “deal” had been made. Tapia said that before taking Cloey to Khan’s room, he told Cloey that Khan wanted to have sex with her in exchange for money, a phone and drugs. Tapia confirmed he believed Officer Torres was a prostitute, and while he was speaking with her, he asked Mahjoob to call Khan to see if Khan needed more “company.” Tapia explained he was “just bullshitting” with Officer Torres. Tapia testified that “hustle” meant to him to “rip[ ] off the guy who wanted to pay for sex,” and the “hustle” was to benefit himself, Mahjoob and Cloey.

4. The Verdict and Sentencing

Mahjoob and Tapia were convicted of violating section 236.1, subdivision (c).

After Mahjoob agreed to waive 180 days of pretrial custody credit and 180 days of conduct credit, the trial court denied probation and sentenced Mahjoob to the low term of five years in state prison. Mahjoob timely appealed.

Tapia waived a jury trial on his prior conviction and admitted suffering the strike prior. The trial court struck the prison prior under section 1385. The court sentenced Tapia to the low term of five years, doubled as a second strike, and imposed a total term of imprisonment of 10 years. The court awarded Tapia 1397 days of credit (699 actual credits plus 698 conduct credits). Tapia timely appealed.

DISCUSSION

1. The Trial Court Did Not Err in Instructing the Jury on the Human Trafficking of a Minor Charge Against Mahjoob

1. Relevant law and standard of review

Section 236.1, subdivision (c), is violated “in two circumstances: when a person, acting with the requisite intent, (1) induces a minor to engage in a commercial sex act; or (2) attempts to induce a minor to engage in such an act.” (People v. Moses (2020) 10 Cal.5th 893, 902.) It provides: “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 266, 266h [the pimping statute], 266i [the pandering statute], 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking.” (§ 236.1, subd. (c).)

“A trial court has a sua sponte duty to correctly instruct the jury on all elements of any charged offenses.” (People v. Sta Ana (2021) 73 Cal.App.5th 44, 60; accord, People v. Mil (2012) 53 Cal.4th 400, 409-410, 415 [due process violation where the trial court’s charge to the jury omitted an essential element of the crime].) But “‘[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel . . . .”’ (People v. Jackson (2016) 1 Cal.5th 269, 336.)

“We review a claim of instructional error de novo. [Citation.] The challenged instruction is considered ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.’” (People v. Rivera (2019) 7 Cal.5th 306, 326 (Rivera); see People v. Smithey (1999) 20 Cal.4th 936, 987 [“‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.”’”].) “‘“Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.”’” (People v. Spaccia (2017) 12 Cal.App.5th 1278, 1287.)

2. It is not reasonably likely the jury applied the challenged instruction in an impermissible manner

The first element of the crime of human trafficking is “a person, acting with the requisite intent, (1) induces a minor to engage in a commercial sex act; or (2) attempts to induce a minor to engage in such an act.”[7] (Moses, supra, 10 Cal.5th at p. 902.) CALCRIM No. 1244 provides that for a defendant to be found guilty of a violation of section 236.1, subdivision (c), the People must prove beyond a reasonable doubt for element one that “ [t]he defendant (caused/ [or] induced/ [or] persuaded) [or] attempted to (cause/ [or] induce/ [or] persuade)] another person to engage in a commercial sex act.”

However, for the first element, the trial court modified CALCRIM No. 1244 and instructed the jury, “To prove that a defendant is guilty of this crime, the People must prove that: the defendant caused, induced or persuaded or attempted to cause, induce or persuade another person to become a prostitute or engage in a commercial sex act.”

Mahjoob contends the court’s modification of the standard jury instruction to add the words “become a prostitute or” suggested to the jury that it could convict Mahjoob of human trafficking (§ 236.1, subd. (c)) without proving he had induced or attempted to induce a minor of “engag[ing] in a commercial sex act”—a required element. Mahjoob argues the result of the modified instruction was to “remove[ ] the commercial sex act element from the human trafficking offense.” Mahjoob argues the instructional error violated his rights to due process and trial by jury under the United States Constitution and his right to have a jury determine each element of an offense under the California Constitution.[8]

We conclude that although the additional four words were not ideal, they were superfluous and not error. It is improbable the jury applied the instruction in an impermissible manner in the context of the rest of the instructions.

Most importantly, according to the definitions the court gave the jury, a commercial sex act encompassed prostitution. The court defined the terms “prostitute,” a “lewd act” and a “commercial sex act:” “A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money or other compensation. [ ] A lewd act means physical contact of the genital, buttocks or female breasts or either the prostitute or customer with some part of the person’s body for the purpose of sexual arousal or gratification. [¶] A commercial sex act is sexual conduct that takes place in exchange for anything of value.” In effect, for the first element, the court instructed the jury that the People had to establish “the defendant caused, induced or persuaded or attempted to cause, induce or persuade another person to become a prostitute”—meaning “to engage in sexual intercourse or any lewd act with another person in exchange for money or other compensation”—“or engage in a commercial sex act.” Not only are the definitions nearly identical, but the definition of a prostitute is narrower than that of a commercial sex act. If the jury found that Mahjoob persuaded or attempted to persuade Cloey to become a prostitute, the jury would have also found that Mahjoob persuaded or attempted to persuade Cloey to engage in a commercial sex act.

The court even clarified, “In order to cause, persuade encourage or induce another person to become a prostitute, and to intend to influence another person to become a prostitute, the defendant must intend that the other person, at some point, actually engage in sexual intercourse or another lewd act for money or other compensation.”

In addition, the court correctly stated the charge against Mahjoob: “The defendant is charged with causing, or inducing or persuading or attempting to cause, induce, or persuade a minor to engage in a commercial sex act.” (Emphasis added.)

Moreover, the court repeated several times that the charge involved inducing or attempting to induce a minor to engage in a commercial sex act. The court explained, “When you decide whether the defendant caused or induced or persuaded or attempted to cause, induce or persuade the other person to engage in a commercial sex act, consider all the circumstances including the age of the other person, her relationship to the defendant and the other’s handicap or disability, if any.” (Emphasis added.) In connection with evidence of uncharged unlawful sexual intercourse with a minor under the age of 16 years, the court instructed: “If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely to commit the crime causing, inducing or persuading or attempting to cause, induce or persuade a minor to engage in commercial sex acts as charged here.” (Emphasis added.) The court continued, “It is not sufficient by itself to prove that the defendant is guilty of causing, inducing or persuading or attempting to cause, induce or persuade a minor to engage in commercial sex acts. The People still must prove causing, inducing or persuading or attempting to cause, induce or persuade a minor to engage in commercial sex acts beyond a reasonable doubt.”[9] (Emphasis added.)

2. Substantial Evidence Supports Mahjoob’s Conviction for Human Trafficking of a Minor

1. Standard of review

“‘When reviewing a challenge to the sufficiency of the evidence, we ask “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” [Citation.] Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for “‘substantial evidence — that is, evidence which is reasonable, credible, and of solid value’” that would support a finding beyond a reasonable doubt.’ [Citation.] In doing so, we ‘view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence.’ [Citation.] ‘We must also “accept logical inferences that the jury might have drawn from the circumstantial evidence.”’ [Citation.] We do not question the credibility of a witness’s testimony, so long as it is ‘not inherently improbable,’ nor do we reconsider the weight to be given any particular item of evidence.” (People v. Navarro (2021) 12 Cal.5th 285, 302.)

2. Substantial evidence supports the jury’s finding that Mahjoob attempted to induce Cloey to engage in a commercial sex act

Mahjoob argues substantial evidence does not support the jury’s finding that he attempted to induce Cloey to engage in a commercial sex act. Mahjoob supports his position by relying on the evidence presented through himself, Tapia and Cloey, who “all denied that there was any attempt to cause, induce, or persuade Cloey to engage in a commercial sex act, with each participant stating emphatically that she was not to engage in sex with Khan.”

We conclude the evidence presented was sufficient.

Khan testified extensively about how he and Mahjoob discussed arranging for Khan to have sex with Cloey. Mahjoob had previously arranged two meetings with other commercial sex workers for Khan. When Khan saw Mahjoob and Cloey at the Orange Line metro station, Mahjoob asked Khan if Khan wanted to have sex with Cloey. When Khan replied yes, Mahjoob agreed to bring Cloey to Khan’s room at the Starlight Motel. Khan and Mahjoob discussed the payment. When Mahjoob and Cloey came to Khan’s room later that day, there was a further negotiation of the payment amount, and Khan gave Mahjoob a partial upfront payment ostensibly so Cloey could pay for a room. After Mahjoob left, Cloey told Khan that she was “working” to get a room. Khan understood “working” to mean performing sexual favors. Although Cloey did not end up having sex with Khan, Khan was clear about his belief that the purpose of the arrangement was to have sex, and he told Cloey as much.[10]

In her field interview, Cloey explained she ended up in Khan’s room because of “[t]he guys, they, their plan.”[11] Cloey said, “[T]hey wanted to re-up,” and they were interested in getting money and drugs. Cloey explained that Khan had given her drugs in an envelope and a cell phone. Khan gave her a phone because “he just wanted to hit me up for business later.” The female officer asked, “So you can go visit him again? But for sex, right?” Cloey responded, “Yeah.”

While Cloey was inside with Khan, Mahjoob and Tapia were outside unwittingly speaking with Officer Torres, who they believed was a prostitute. A transcript of their recorded conversation was admitted into evidence. Among other things, Tapia said to Officer Torres that he had “the homegirl [Cloey] in there working” and that he was “trying to lace her up on the game” and “breaking her in” because “[t]his [was] her first time.” At one point, at Tapia’s urging, Mahjoob called Khan to find out if he wanted more “company.” Officer Torres and Detective Pinner testified about the meaning of the words “working,” “lace her up on the game,” “breaking her in,” and “company” in the context of human trafficking and prostitution, explaining the words were street vernacular referencing various aspects of commercial sex work.

Detective Pinner explained common circumstances and practices used to recruit and groom someone as a commercial sex worker, including meeting online, engaging face-to-face, targeting runaways, creating a sense of reliance on the groomer, and “trying out the merchandise,” meaning having sex with the person being groomed as a form of “instruction.” The evidence established these grooming characteristics as to Cloey. Cloey was a runaway who met Mahjoob through a social media application. Mahjoob picked Cloey up and took her to a friend’s home where he had sex with her. Cloey testified she felt obligated “in a way” to have sex with Mahjoob because he gave her a place to stay.

Mahjoob contends he told Cloey not to have sex with Khan in exchange for money. But a violation of human trafficking of a minor does not necessarily turn on an incident involving a specific person at a particular time. (See People v. Dell (1991) 232 Cal.App.3d 248, 265-266 [“both pimping and pandering have been held to be crimes of a continuous ongoing nature and are therefore not subject to the requirement the jury must agree on the specific act or acts constituting the offense”].) Moreover, a “commercial sex act” does not require intercourse or the exchange of money. Rather, a “commercial sex act” broadly covers any “sexual conduct on account of which anything of value is given or received by a person.” (§ 236.1, subd. (h)(2).)

According to Mahjoob, the evidence demonstrated the entire scheme involved a “hustle” to steal money, drugs and a phone from Khan, and there was insufficient evidence for a jury to find an attempt to cause, induce or persuade Cloey to engage in sexual conduct in exchange for anything of value. But even if Mahjoob expressly told Cloey not to have sex with Khan, a jury could have concluded that Mahjoob’s conduct—knowing Khan wanted to have sex with Cloey, arranging a date with Khan, taking Cloey to Khan’s motel room, negotiating and accepting payment for the date, leaving Cloey with Khan—amounted, at a minimum, to an attempt to cause Cloey to engage in some form of sexual conduct in exchange for money, drugs and a cell phone. Further, Khan gave Cloey a cell phone to get in touch with her in the future so they could have sex. The jury was free to credit the testimonies of Cloey, Khan, Officer Torres and Detective Pinner that Mahjoob was grooming and attempting to cause, induce or persuade Cloey to engage in a commercial sex act, whether with Khan on that night or with Khan (or someone else) in the future. (See People v. Dell, supra, 232 Cal.App.3d at pp. 265-266 [explaining that pandering and pimping are crimes of an ongoing nature].)

3. Tapia’s Due Process Rights Were Not Violated When the Jury Convicted Him of Human Trafficking of a Minor

1. Relevant law and standard of review

“Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial.” (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438; see People v. Whitmer (2014) 230 Cal.App.4th 906, 919 [“the purpose of an accusatory pleading is ‘“to provide the accused with reasonable notice of the charges”’”].) “‘[A]n accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense.’” (People v. Sawyers (2017) 15 Cal.App.5th 713, 720.)

An exception to the rule is when “‘the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense.’” (People v. Sawyers, supra, 15 Cal.App.5th at p. 720; see People v. Whitmer, supra, 230 Cal.App.4th at p. 919 [“‘proceedings in the trial court may constitute an informal amendment of the accusatory pleading, when the defendant’s conduct or circumstances created by him amount to an implied consent to the amendment’”].) The failure to object to an instruction on a nonincluded offense may be “‘“regarded as an implied consent to treat the information as having been amended to include the offense on which the sentence was imposed”’” and results in the forfeiture of any contention of error. (People v. Toro (1989) 47 Cal.3d 966, 976-977, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3; see Whitmer, at p. 920 [“Because appellant never raised any objection to the instructions before the trial court, he impliedly consented to the submission of both theories [of liability based on an included and nonincluded offense] to the jury.”].)

Because Tapia’s argument involves resolving a question of law and procedural fairness, we apply a de novo standard of review. (See, e.g., People v. Marrero (2021) 60 Cal.App.5th 896, 911 [“‘We review procedural due process claims de novo because “the ultimate determination of procedural fairness amounts to a question of law.”’”]; see also People v. Cole (2004) 33 Cal.4th 1158, 1205 [“Whether defendant received constitutionally adequate notice that the prosecution was relying on a particular theory of guilt entails a resolution of a mixed question of law and fact that we believe is predominantly legal.”].)

2. Tapia impliedly consented to have the jury consider whether he was guilty of human trafficking of a minor with intent to pander

Tapia was charged with and convicted of human trafficking of a minor in violation of section 236.1, subdivision (c)(1). However, the information charged Tapia with human trafficking of a minor with intent to violate section 266h, the pimping statute, and the trial court instructed the jury on human trafficking of a minor with intent to violate section 266i, the pandering statute. Specifically, the court instructed the jury with a modified version of CALCRIM No. 1244, which referenced section 266i, and with CALCRIM No. 1151, which described the elements of pandering. Tapia did not object to giving CALCRIM No. 1244. Tapia objected to some of the language included in CALCRIM No. 1151 but not to giving the instruction.

Tapia contends the trial court’s erroneous instruction[12] resulted in him being convicted of an offense with which he was not charged, in violation of his state and federal due process rights.[13] But he does not argue he was surprised or unaware of the pandering theory such that he was deprived of an opportunity to adequately defend himself at trial.

We conclude Tapia has failed to demonstrate a due process violation because he impliedly consented to an informal amendment of the information.

“[G]enerally an accused will receive adequate notice of the prosecution’s theory of the case from the evidence adduced at the preliminary examination . . . .” (People v. Cole, supra, 33 Cal.4th at p. 1205.) Tapia’s preliminary hearing provided him notice that the People would be pursuing a pandering theory against him—that Tapia had knowingly and purposefully encouraged Cloey to become a prostitute regardless of whether his efforts were successful. (See People v. Zambia (2011) 51 Cal.4th 965, 973, fn. 5, 980.) Officer Torres testified about her conversation with Tapia, in which she recounted that Tapia told her “he had a girl [in the motel] that he was working . . . and that he was training her up and breaking her in.” Detective Pinner and Officer Torres testified about their experiences and expertise involving pandering, pimping and commercial sex trafficking. At the conclusion of the hearing, the trial court found it could “draw a very strong and reasonable inference that the victim, Cloey, was being trafficked for prostitution.” Accordingly, the court held Tapia to answer to “count two, also a felony, violation of Penal Code section 236.1(c)(1),” without specifying the statute supplying the specific intent element of the offense.

At the outset of the jury trial, the descriptions of the charge and evidence against Tapia included references to both pimping and pandering. In describing the charge against Tapia to potential jurors, the trial court read the charge as stated in the information and added, in reference to section 266(h), that “you will be further instructed on that, but basically that is the pimping and pandering statute . . . .” The prosecutor’s opening statement explained, “The evidence in this case will show that the defendants acted in concert to pander, which is to offer up, a child for sex in exchange for money with the intent of pimping that child, and pimping simply means benefiting financially from the sexual labor of others.”

During the trial, when the trial court asked counsel about “any issues you have with the jury instructions,” Tapia’s counsel said, “[A]s to 266h and [266]i . . . I don’t know what we need 1-B. I don’t think there is an issue that this was a house of prostitution.” Tapia’s counsel did not object to the instruction as improper because Tapia had not been charged with human trafficking of a minor with the intent to pander or argue the instruction on pandering should not be given.

By closing arguments, it was clear that the People were proceeding on a pandering theory. In closing, the prosecutor defined the second element of the human trafficking offense as when Tapia “acted, he intended to commit a violation of the pandering statute.” Likewise, Tapia’s counsel explained to the jury that the intent element of the human trafficking offense was being supplied by section 266i: “Number two, when Jason acted, he intended to commit a felony in violation of Penal Code section 266i[,] which is the pandering statute.” Neither side mentioned “pimping” as an element of the offense charged.

4. The Trial Court Did Not Err by Denying Tapia’s Request To Instruct the Jury with CALCRIM No. 224

1. Relevant law and standard of review

The trial court is required to instruct the jury ‘“on the general principles of law relevant to the issues raised by the evidence.”’ [Citation.] A trial court must instruct the jury on how to evaluate circumstantial evidence ““‘sua sponte when the prosecution substantially relies on circumstantial evidence to prove guilt.’”” (People v. Contreras (2010) 184 Cal.App.4th 587, 591; accord, People v. Wright (2021) 12 Cal.5th 419, 451.)

As discussed, “We review a claim of instructional error de novo.” (Rivera, supra, 7 Cal.5th at p. 326.) “Whether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is . . . predominantly legal. As such, it should be examined without deference.” (People v. Waidla (2000) 22 Cal.4th 690, 733.)

2. The nature of the case warranted giving only CALCRIM No. 225

“CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171-1172.) CALCRIM No. 224 instructs the jury on how to evaluate circumstantial evidence with regards to any necessary element that must be proven, including intent. (Ibid.; see People v. Cole, supra, 33 Cal.4th at p. 1222 [CALCRIM No. 224 “is the proper instruction to give unless the only element of the offense that rests substantially or entirely on circumstantial evidence is that of specific intent or mental state”].) CALCRIM No. 225 focuses on circumstantial evidence to prove intent. (People v. Samaniego, supra, at pp. 1171-1172.)

Tapia argues the trial court erred when it only instructed the jury with CALCRIM No. 225 and denied his request to also instruct the jury with CALCRIM No. 224. Tapia contends the more comprehensive instruction of circumstantial evidence was necessary because the People relied on circumstantial evidence to prove all three required elements of human trafficking of a minor.[14]

We conclude the court did not err in denying Tapia’s request to instruct the jury with CALCRIM No. 224. CALCRIM No. 225 was proper because the People substantially relied on circumstantial evidence only to prove Tapia’s intent or mental state. (See People v. Hughes (2002) 27 Cal.4th 287, 347; accord, People v. Marshall (1996) 13 Cal.4th 799, 849; see also Bench Notes to CALCRIM No. 225 (2021) [“Give this instruction when the defendant’s intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. If other elements of the offense also rest substantially or entirely on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence.”].)

To find Tapia guilty of human trafficking of a minor, the People needed to prove three elements beyond a reasonable doubt: (1) Tapia induced, caused, persuaded, or attempted to induce, cause, or persuade Cloey to commit a commercial sex act; (2) Tapia had the intent to violate section 266i; and (3) Cloey was under the age of 18 during this period. (§ 236.1, subd. (c); CALCRIM No. 1244.)

Other than the second element on intent, the elements were primarily established with direct evidence. Specifically, the first element was supported by Tapia’s testimony. Tapia admitted he knew Khan used his money to buy sex, and Khan was trying to purchase sex services from Cloey. Tapia also said that before taking Cloey to Khan’s room, he told Cloey that Khan wanted to have sex with her in exchange for money, a phone and drugs. Tapia also knew that when he escorted Cloey to the Starlight Motel, an agreement had been reached with Khan to pay for sex services from Cloey. Further, as described earlier, Tapia’s conversation with Officer Torres, notwithstanding his characterization that he was “just bullshitting” with her, also supplies direct evidence of Tapia’s involvement in causing or attempting to cause Cloey to engage in a commercial sex act. Finally, the third element was supported by Cloey’s testimony. Cloey testified that her birthdate was September 22, 2001, and she was 15 years old in May 2017.

In addition, CALCRIM No. 225 briefly explained to the jury how to use circumstantial evidence to find any necessary fact had been proven: “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.” And the jury was provided with additional instructions that explained the concept of circumstantial evidence, its potential uses, what the concept of reasonable doubt means, and how they must first find that the People proved each fact “essential to [the] conclusion beyond a reasonable doubt.”

According to Tapia, the other elements of the charged offense relied on drawing inferences from circumstantial evidence. Tapia identifies five pieces of evidence: “Mahjoob’s having sex with Cloey was a ‘test run’ and was an act of violence . . . ; providing drugs to Cloey was a device or scheme . . . ; isolating her and making her dependent on Mike for food and shelter was duress . . . ; Sepulveda Boulevard was “a place where prostitution was encouraged or allowed’ . . . ; whether the terminology or lingo used between Tapia and Detective Torres necessarily holds the meaning Detective Pinner states . . . .” Tapia does not specify which element of the offense these pieces of evidence are meant to support. But by identifying acts of violence, a device or scheme, duress, and a place where prostitution is encouraged or allowed, Tapia refers to how section 266i can be violated. (§ 266i, subd. (a)(2), (4) & (5).) But to be guilty of human trafficking, it must be shown that Tapia intended to violate section 266i, meaning these pieces of evidence go towards showing that Tapia had the intent to violate the statute, which supports the trial court’s decision to give CALCRIM No. 225.[15]

5. Tapia Forfeited His Claims of Prosecutorial Misconduct

1. Relevant proceedings

The prosecutor’s closing argument focused on Tapia’s role as an aider and abettor of Mahjoob, who the prosecutor characterized as “the main perpetrator.” The prosecutor focused on human trafficking of a minor as being a crime of intent, and that intent could be inferred from Tapia’s actions. The prosecutor argued Tapia’s testimony demonstrated he was trying to blame Cloey for what happened, or at a minimum, he thought Cloey was “game for all this.” The prosecutor referenced “somebody else’s child” or “someone else’s child” on several occasions, primarily in the context of arguing Tapia exploited “somebody else’s child” and thought it was “okay because he didn’t do it to his own kid.”

In closing, defense counsel argued the defendants’ scheme was never to induce Cloey into engaging in a commercial sex act but rather to have her steal money, drugs and a phone from Khan. Defense counsel refuted the prosecutor’s assertion that Tapia was “blaming Cloey for anything happened.” Defense counsel argued Tapia’s limited role in the incident and his conversation with Officer Torres could mean something other than attempting to cause Cloey to engage in a commercial sex act. Defense counsel relied on statements made by Cloey near the time of the incident that the entire thing was “hustle,” which counsel argued meant to take Khan’s money, and that “Mike and Jason did not send her to Pop’s room to have sex.”

In rebuttal, the prosecutor again focused on Tapia’s efforts to blame Cloey for what happened and Tapia’s argument Cloey agreed to the plan to steal from Khan. The prosecutor argued that once Cloey had been offered sex in exchange for money, the crime of pandering had been committed. The prosecutor painted Tapia and Mahjoob as uncaring about what happened to Cloey and referred to how Tapia “brag[ged] about how he was making [Cloey] do it” even though he knew she “didn’t want to be there, did not want to do this . . . .”

2. Relevant law and standard of review

When addressing a jury, prosecutors enjoy wide latitude in commenting on the evidence, including identifying reasonable inferences derived from the evidence. (See People v. Edwards (2013) 57 Cal.4th 658, 736 [“[a] prosecutor’s ‘argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom’”]; People v. Hill (1998) 17 Cal.4th 800, 823 [same].) That latitude, however, does not extend to statements that appeal solely to the passions or prejudices of the jurors. (See People v. Redd (2010) 48 Cal.4th 691, 742 [“‘t is, of course, improper to make arguments to the jury that give it the impression that “emotion may reign over reason,” and to present “irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response”’”]; [i]People v. Kipp (2001) 26 Cal.4th 1100, 1130 [“‘[a]n appeal for sympathy for the victim is out of place during an objective determination of guilt’”].) A prosecutor also cannot engage in “personal attacks on the integrity of opposing counsel.” (People v. Gionis (1995) 9 Cal.4th 1196, 1215.)

We consider the prosecutor’s remarks in the context of the entire record. (People v. San Nicolas (2004) 34 Cal.4th 614.) “Ultimately, the test for misconduct is whether the prosecutor has employed deceptive or reprehensible methods to persuade either the court or the jury.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) “‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]”’ (People v. Brown (2003) 31 Cal.4th 518, 553-554.)

“‘[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’” (People v. Stanley (2006) 39 Cal.4th 913, 952; accord, People v. Riggs (2008) 44 Cal.4th 248, 322; accord, People v. Perez (2018) 4 Cal.5th 421, 450.) Exceptions exist to the general rule in cases where an objection would have been futile, an admonition would not have cured the harm, or an immediate overruling of the objection deprived the defendant of the opportunity to request an admonition. (See People v. Hill, supra, 17 Cal.4th at p. 819; accord, People v. Navarro, supra, 12 Cal.5th at p. 332.)

When preserved, we review a trial court’s rulings on prosecutorial misconduct for an abuse of discretion.[16] (People v. Alvarez (1996) 14 Cal.4th 155, 213.)

3. Tapia failed to object and request admonishments

Tapia raises numerous misconduct challenges to statements in the prosecutor’s closing and rebuttal arguments, which Tapia contends disparaged defense counsel as blaming Cloey for her victimization and improperly appealed to the jury’s emotions. Tapia concedes that none of the comments were reprehensible in isolation. He also acknowledges that he failed to object to most of the statements he now challenges and that such failure generally results in forfeiture on appeal. But because he “complains of the broader impact from multiple comments,” he contends we should exercise our discretion to consider his argument.

We conclude Tapia forfeited his prosecutorial misconduct claims and decline to review them.

Tapia did not object to 15 of the 17 statements he now argues were problematic. (Cf. People v. Williams (2009) 170 Cal.App.4th 587, 606 [exercising discretion to consider prosecutorial misconduct claims on the merits where the defendant forfeited some claims but raised “numerous appropriate and timely objections in the trial court” on the same concern raised in the forfeited claims].)

Tapia objected to two statements during closing and rebuttal arguments. In the closing rebuttal argument, the prosecutor urged, “They want you to believe that it’s okay for all of you to turn all of your children over to the defendant.” The trial court sustained Tapia’s counsel’s objection. The prosecutor then reframed the statement: “To turn over all the children in the world to the defendant and his pimp partner, so that they can take them out on the track, make deals with them for johns and then arguing it’s the child’s fault.” Tapia did not object to the restatement.[17] At the end of the rebuttal argument, the prosecutor said, “Don’t . . . be a Jason Tapia or a Mahrad Mahjoob and think that because that child is a run away [sic] that it’s okay for you to sexually exploit her.” Again, the court sustained Tapia’s counsel’s objection.

The first statement Tapia objected to was improper and is troubling. The statement broke the Golden Rule by expressly personalizing the crime and appealing to the jurors’ emotions, asking them to put themselves in the shoes of Cloey’s parents. (See People v. Vance (2010) 188 Cal.App.4th 1182, 1198 [“The condemnation of Golden Rule arguments. . . is so widespread that it is characterized as ‘universal.’”]; see People v. Fields (1983) 35 Cal.3d 329, 362 [“It has long been settled that appeals to the sympathy or the passions of the jury are inappropriate at the guilt phase of a criminal trial.”].) We are less troubled by the second statement Tapia objected to, which was consistent with the evidence that Cloey was a runaway and the People’s theory that the defendants had sexually exploited her. Moreover, immediately after the objection, and as her final word, the prosecutor said, “Apply the law to the evidence, and when you do that you can only come to one fair, just, and reasonable conclusion and that is that the defendant is guilty.”

However, Tapia failed to request an admonition. (See People v. Sanchez (2016) 63 Cal.4th 411, 476 [“A claim of misconduct is preserved for review only if an admonition would not have cured the harm.”]; see, e.g., People v. Gonzales (2012) 54 Cal.4th 1234, 1275 [“The court sustained objections to the prosecutor’s Hitler and Bosnia references, and counsel’s failure to request an admonition forfeited the claim of misconduct.”].)

Moreover, Tapia does not explain why requesting an admonition would have been futile or would not have cured the alleged harm. (See People v. Centeno (2014) 60 Cal.4th 659, 674 [finding prosecutorial misconduct claim forfeited where “[n]othing in this record indicates that an objection would have been futile. Nor was the prosecutor’s argument so extreme or pervasive that a prompt objection and admonition would not have cured the harm”]; see also People v. Fuiava (2012) 53 Cal.4th 622, 680 [rejecting defendant’s request to excuse his failure to preserve misconduct claims where “the record does not establish that properly framed objections would have been in vain or provoked any ‘wrath’ on the part of the trial court; rather, all indications are that the court was reasonably responsive to defense objections throughout the trial”].) Having sustained defense counsel’s objections, it appears the trial court would have granted requests for admonitions. Further, the record discloses no reason to believe that an admonition to the jury to decide the case based on the facts and law, and not on emotions or sympathy, would not have cured any prejudice caused by the prosecutor’s statements. (See, e.g., People v. Velez (1983) 144 Cal.App.3d 558, 569 [prosecutor’s statement that “‘[w]e wouldn’t be here if someone were not dead’” was improper argument, but the trial court’s admonition not to let emotions govern the verdict was adequate to cure any potential prejudice]; see, e.g., People v. Earp (1999) 20 Cal.4th 826, 858-859, [“because any harm could have been cured by an admonition, defendant’s failure to make a timely objection and ask the court to admonish the jury precludes him from now challenging as misconduct many of the questions and comments by the prosecutor that he cites as part of an asserted pattern of misconduct”]; cf. People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [prosecutor’s statement to jurors to “‘[s]uppose . . . this had happened to one of your children’” did not prejudice the defendant even in the absence of an admonition to the jury].)

DISPOSITION

Mahjoob’s and Tapia’s judgments are affirmed.

IBARRA, J.*

We concur:

PERLUSS, P. J.

FEUER, J.

[1] Undesignated statutory references are to the Penal Code.

[2] The information originally stated the human trafficking charge against Mahjoob was with an intent to violate section 266h. The information was interlineated at trial to conform with the evidence.

[3] The prosecutor gave a joint opening statement to both juries. The prosecutor’s closing and rebuttal arguments and the opening statement and closing argument of each defendant were presented separately to each defendant’s jury.

[4] The audio recording and transcript of Mahjoob’s interview was admitted only in his case. Mahjoob’s jury also heard additional testimony from Detective Pinner about his interview with Mahjoob. Other evidence was presented to both juries unless specifically noted.

[5] Cloey testified at trial that she does not recall telling Detective Pinner during her initial interview that she smoked methamphetamine with Mahjoob and Crystal.

[6] Cloey testified that she recalled being interviewed at the police station, but she did not recall the specific statements she had made.

[7] The elements of section 236.1, subdivision (c) are: (1) a person “cause[d], induce[d], or persuade[d], or attempt[ed] to cause, induce, or persuade” another person to “engage in a commercial sex act”; (2) while doing so, the person had “the intent to effect or maintain a violation of [s]ection 266, 266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518”; and (3) the other person was “a minor at the time of the commission of the offense.” (§ 236.1, subd. (c).)

[8] The People argue Mahjoob forfeited any argument that the trial court misinstructed the jury on an element of his charge because he did not object to the instruction. But section 1259 preserves for appeal any challenge to instructional error that affects the substantial rights of a defendant: “The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” And “nstructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review.” ([i]People v. Hillhouse (2002) 27 Cal.4th 469, 503; see also People v. Mitchell (2019) 7 Cal.5th 561, 579-580 [defendant “claims that the flawed instructions deprived him of due process, and because this would affect his substantial rights if true, his claim is not forfeited”]; accord, People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012 [failure to object to instruction does not forfeit issue on appeal when alleged error concerns elements of offense].)

[9] Our conclusion is supported by the People’s closing and rebuttal arguments, which repeatedly emphasized the commercial sex act element needed to prove a human trafficking charge against Mahjoob. The People did not suggest to the jury that proving Mahjoob induced Cloey to become a prostitute was sufficient by itself to prove human trafficking without also proving Mahjoob induced or attempted to induce Cloey into engaging in a commercial sex act.

[10] During her examination for sexual assault, Cloey told the forensic nurse, “Mike wanted me to make him money and get him drugs. I went to a motel with Mike. Pops asked if I wanted to have sex, and I told him no.”

[11] Cloey referred to what she was doing as a “hustle.” Detective Pinner testified about the meaning of the word “hustle” as when a sex worker goes on a prearranged date but rather than have sexual intercourse finds other ways to satisfy the john and “effectively get[s] away with something because she hasn’t had actual sex.”

[12] Although Tapia uses the language of instructional error in his argument, his underlying contention is that because he was charged with human trafficking of a minor with intent to pimp but convicted of human trafficking of a minor with intent to pander, he was convicted of a different crime. We need not resolve this issue because even if Tapia is correct, he acquiesced to having the jury consider a charge of human trafficking of a minor with intent to pander.

[13] The verdict form states the jury found Tapia “guilty of the crime of HUMAN TRAFFICKING OF A MINOR FOR A COMMERCIAL SEX ACT, in violation of Penal Code Section 236.1(c)(1), a Felony, as charged in Count 2 of the Information.”

[14] Tapia also argues the trial court incorrectly believed that it could give only one of the two jury instructions and that CALCRIM No. 225 was the “better” instruction for the defense. But the reasons why the court did not give CALCRIM No. 224 are immaterial to our conclusion that the court did not err by only instructing the jury with CALCRIM No. 225.

[15] In his reply brief, Mahjoob joins in Tapia’s argument that the trial court erred in failing to instruct the jury with CALCRIM No. 224. But Mahjoob does not explain why this failure was error in his case and how it prejudiced him. (See People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) In any event, direct evidence supported finding Mahjoob attempted to cause, induce or persuade Cloey to engage in a commercial sex act.

[16] Tapia argues the applicable standard of review is de novo, citing People v. Uribe (2011) 199 Cal.App.4th 836, 860, and People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7. Because we find Tapia forfeited his arguments of prosecutorial misconduct, the result would be the same regardless of the standard of review applied.

[17] Having failed to object to the restatement, Tapia forfeited his argument of prosecutorial misconduct based on this statement. (See People v. Stanley, supra, 39 Cal.4th at p. 952; People v. Riggs, supra, 44 Cal.4th at p. 322.)

* Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.