Filed 4/6/18 P. v. Mincey CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ISIAH MINCEY,

Defendant and Appellant.
D073109



(Super. Ct. No. FWV1300334)

APPEAL from a judgment of the Superior Court of San Bernardino County, Gregory S. Tavill, Judge. Affirmed.
Ronald R. Boyer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Isiah Mincey appeals from a judgment of conviction after a jury trial. The jury convicted Mincey of 10 counts, including pimping, pandering, and human trafficking of a minor, related to two female victims.
On appeal, Mincey raises two arguments regarding the trial court's instructions to the jury. First, Mincey contends that the trial court violated his constitutional right to due process by instructing the jury with the standard instruction on evidence of uncharged misconduct that is admitted under Evidence Code sections 1101, subdivision (b) and 1109. According to Mincey, the instruction is incorrect in that it tells the jury that it may consider the evidence if the People prove by a preponderance of the evidence that the defendant committed the uncharged acts. Mincey contends that such evidence is "circumstantial evidence," and therefore, must be proven beyond a reasonable doubt.
Second, Mincey contends that the trial court violated his constitutional right to due process by instructing the jury to apply a preponderance of the evidence standard to the jurisdictional fact of where the crimes were committed. This, too, he contends, must be proven beyond a reasonable doubt. Mincey concedes, however, that the Supreme Court has already determined that the standard of proof applicable to facts establishing territorial jurisdiction is preponderance of the evidence, not beyond a reasonable doubt.
We conclude that the Supreme Court has already spoken with respect to both of Mincey's claims. Although Mincey argues that the Supreme Court did not consider the "constitutional" question that he is raising with respect to the first issue, we disagree. For this reason, we affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
In December 2012, victim W. was 17 years old and was living with her mother and siblings in Louisiana. She met Mincey at a pool at the apartment complex where she lived. Mincey got W.'s phone number from "his contacts" and the two began talking on the telephone. Mincey told W. that she could make a lot of money by working as a prostitute. Mincey had W. pose in provocative positions and took photographs of her. Mincey also began having sex with W., and videotaped them having sex.
W. began working for Mincey as a prostitute in Louisiana. Mincey would get a hotel room, and he would tell her how much to charge customers. Mincey found W.'s customers through advertisements that he posted on a Web site called Backpage. Mincey listed his own phone number in the advertisements. W. would answer the phone, but Mincey had taught her what to say to potential customers. Mincey also taught her to ask whether the customer was affiliated with law enforcement and to get the money before engaging in any acts with the customer. W. gave the money that she earned from prostitution to Mincey.
W. eventually traveled to Texas with Mincey and another woman, Amber J. In Houston, W. again began working as a prostitute. After a few months, Mincey decided that they should go to California. Mincey and W. headed to California on a bus, and after arriving, Mincey obtained a fake identification card for W. Initially, they stayed in a hotel room but later began living with one of Mincey's cousins. In California, W. looked for customers on the street. She engaged in sex acts in customers' cars, and even in Mincey's cousin's home. W. always gave the money she earned to Mincey. Mincey bought her clothes and food. W. continued to work for Mincey as a prostitute because she did not believe that she had anywhere else to go and she had no family in California.
One day, Mincey questioned W. as to why she was not in bed with him. He got up out of bed and became angry. He slapped and choked W., punched her in the stomach, and pushed her head underwater. She tried to leave the motel room, but he grabbed her and threw her to the floor. Mincey began hitting her in the face. W. pulled out a closed pocketknife, but Mincey was able to take it from her. After Mincey obtained the knife, he started shoving it down W.'s throat. W. eventually managed to crawl under the bed. Mincey lifted up the bed and kicked her. The violent episode continued after W. came out from under the bed, believing that Mincey had calmed down. He began hitting her again, and she ran to the bathroom and tried to lock the door. Mincey entered the bathroom, grabbed W.'s hair, threw her on the floor, and continued to hit her. He eventually bound her hands behind her back and covered her mouth. Mincey ordered W. to get into the bathtub where he was running the water. He left for a short time, and she untied her hands, but he returned and pushed her head under the water. She got out of the tub and he began to choke her. She managed to run to the closet to hide, and he eventually stopped attacking her. W. suffered a black eye, as well as bruises on her arms and ribs.
In late January 2013, W. was working as a prostitute at the TA Ontario Truck Stop. She was contacted by police on January 28, 2013. She had been in contact with Mincey that day and night, and he had sent her a number of texts checking on her. An Ontario police officer responded to a call at the truck stop at about 8:05 p.m. that night. Another officer had detained W. and she was sitting on a curb. Her eyes were bright red, which indicted to the officer that she was suffering from petechial hemorrhaging, as a result of having been strangled. W. told the officer that she was from Louisiana and had come to California with Mincey. She told the officer the name of the motel where she had been staying, and said that she had been away from home since late December. She said that Mincey had caused the injuries to her eyes, and that she was prostituting herself and was giving Mincey the money that she earned.
Also in January 2013, victim M. was 18 years old and had been going to school at a local college and working at a grocery store. She met Mincey on a bus on her way to school on January 29, 2013, the day after W. was detained by police. M. and Mincey exchanged phone numbers and Mincey called M. that night. They continued to speak on the phone for about a week. M. moved in with Mincey and his cousin at Mincey's cousin's house on February 5, 2013. Mincey and M. had a sexual relationship.
Mincey told M. that she should be a stripper to make more money. He taught her a script for how to speak to potential customers and how to detect whether a potential customer was a police officer. He also taught her how to set prices for sex acts. Mincey threatened to hit M. if she failed to memorize the script that he gave her. He took her to a motel room where he took photographs of her to use in advertisements for prostitution, which he placed on the Backpage Web site. Mincey gave her a name to use for purposes of prostitution, and told her how much to charge.
M. recounted receiving a telephone call from a prospective customer. She used the script that Mincey had given her, and scheduled a time for the man to come have sex. She met the customer at his car and took him to a motel room, where she had sex with him. Mincey had given her a condom to use. The following day, M. went to get her paycheck from work, and she gave Mincey the money.
At another point, Amber J. came to Mincey's cousin's apartment while M. was there. Amber J., Mincey, and M. went to a motel in Pomona. While in Pomona, Mincey took M. out to a street and told her that he expected her to work the street, telling her what to do. While she was out there, a man in a car approached her. She told him that she was not feeling well. The man parked his car and put his arm around her, pulling her into the car. He engaged in anal sex with M. He slapped her at one point, accusing her of not listening to him. Mincey kept trying to call M., and the man asked M. whether the person who was calling her was her pimp. She said no. The man took the phone from M. and answered it. The man told Mincey that M. had been "f'd in her A by another pimp," that she did not know what she was doing, and that she was " 'out here running' " on his turf. Mincey responded, " 'Yeah. That stupid bitch. Yep.' " Mincey also told the man that M. was "green," was "out of pocket," and " 'deserves to get an ass whoopen.' " Later, after M. was back with Mincey, he made her take a shower. After she got out of the shower, he made her hold onto the curtain rod while he hit her 20 to 30 times with his belt. After forcing her back to work on a street in Pomona that night, they left for Fontana the following day.
Mincey was contacted by law enforcement and arrested on February 13, 2013. M. was with him. He was interviewed at a police station. He claimed that he did not know anyone who went by W.'s name or the nickname that she used as a prostitute. He further claimed that he had come to California from Louisiana by himself. Mincey also told police that he had not posted any advertisements on Backpage. He said that he had been staying at several hotels in California and that he had no family in the area. He was not sure whether he had been at the Roadway Inn near the truck stop where W. had been contacted by police. He told police that he had obtained his fake identification card in Fontana.
An Ontario police detective testified at trial as an expert on prostitution. He testified that pimps advertise their prostitutes on escort Web sites, including Backpage.com. Pimps have rules for their prostitutes, and require their prostitutes to check in regularly and to give the money that they earn during a "date" to their pimps. Pimps train prostitutes to avoid contact with law enforcement, and to deny that anyone else is involved in their prostitution if contacted by law enforcement. They may also train prostitutes to ask certain questions or request that customers engage in certain acts in order to ensure that their customers are not law enforcement officers. The detective also testified that the phrase "out of pocket" usually means that the prostitute is either not following the pimp's rules, or that she is working in an area that another pimp has claimed as his own territory.
B. Procedural background
A jury found Mincey guilty on 10 counts, as follows: pimping (§ 266h, subd. (a); count 1); pandering (§ 266i, subd. (a)(1); count 2); inflicting corporal injury resulting in a traumatic condition (§ 273.5, subd. (a); count 3); human trafficking of a minor for a sex act by force (§ 236.1, subd. (c)(2); count 4); pimping a minor over age 16 (§ 266h, subd. (b)(1); count 6); pandering a minor over age 16 (§ 266i, subd. (b)(1); count 7); false imprisonment (§ 236; count 8); assault by means likely to cause great bodily injury (§ 245, subd. (a)(4); count 9); inflicting corporal injury to a cohabitant (§ 273.5, subd. (a); count 10); and unlawful sexual intercourse (§ 261.5, subd. (c); count 11). The jury also found true the allegation, made with respect to count 4, that Mincey used force, fraud, deceit, menace, or threat of unlawful injury to the victim (§ 236.1, subd. (c)(2)).
The trial court sentenced Mincey to a determinate term of six years on count 1, plus a consecutive 8 months on count 11. The court also sentenced Mincey to an indeterminate term of 15 years to life on count 4, to run consecutive to the determinate portion of his sentence.
III.
DISCUSSION
A. The jury was properly instructed with CALCRIM No. 375; the Supreme Court has considered the issue that Mincey raises and has rejected the claim

Mincey relies on dicta in People v. Leon (2015) 61 Cal.4th 569, 597, to fashion his argument that the trial court erred in instructing the jury with CALCRIM No. 375, the standard instruction related to uncharged crimes evidence, and CALCRIM No. 852, the standard instruction related to uncharged acts of domestic violence. According to Mincey, because every fact essential to a conviction must be found beyond a reasonable doubt, the trial court erred in instructing the jury that it could consider evidence of other uncharged crimes if it found he had committed those crimes by a preponderance of the evidence. Mincey argues that, by allowing the jury to draw inferences based on evidence that was proven by only a preponderance of the evidence, the trial court's instructions unconstitutionally diminished the prosecutor's burden to prove guilt beyond a reasonable doubt.
1. Additional background
The trial court instructed the jury regarding the evidence that was presented pertaining to uncharged acts of pimping or pandering that occurred in Louisiana and Texas, prior to January 16, 2013, consistent with CALCRIM No. 375. The jury was instructed as follows:
"The People presented evidence that the defendant may have committed acts of pimping and pandering prior to January 16, 2013 in the states of Louisiana and Texas that was (sic) not charged in this case.

"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged acts. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

"If the People have not met this burden, you must disregard this evidence entirely.

"If you decide that the defendant committed the uncharged acts, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not:

"• The defendant knew that [W.] was acting as a prostitute when he allegedly acted in this case; and/or

"• The defendant had a plan or scheme to commit the offenses alleged in this case.

"In evaluating this evidence, consider the similarity or lack of similarity between the uncharged acts and the charged offenses.

"Do not consider this evidence for any other purpose.

"Do not conclude from this evidence that the defendant has a bad
character or is disposed to commit crime.

"If you conclude that the defendant committed the acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any of the charged offenses in this case. The People must still prove each charge beyond a reasonable doubt."

The court also instructed the jury regarding evidence of uncharged acts of domestic violence, consistent with CALCRIM No. 852. Specifically, the court instructed the jury in this respect as follows:
"The People presented evidence that the defendant committed acts
of domestic violence that were not charged in this case.

"Domestic violence means abuse committed against a cohabitant, former cohabitant, or person with whom the defendant has, or previously had, a dating relationship.

"Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else.

"The term cohabitants means two unrelated persons living together for a substantial period of time, resulting in some permanency of the relationship. Factors that may determine whether people are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same residence, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties held themselves out as husband and wife[,] (5) the continuity of the relationship, and (6) the length of the relationship.

"A dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations.

"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of
the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

"If the People have not met this burden of proof, you must disregard this evidence entirely.

"If you decide that the defendant committed the uncharged
domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence, and, based on that decision, also conclude that the defendant was likely to commit the crimes charged in Counts 3 and 10.

"If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged in this case. The People must still prove each charge beyond a reasonable doubt.

"Do not consider this evidence for any other purpose."

In addition, the trial court instructed the jury with CALCRIM No. 224, as follows:
"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.

"Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."

2. Analysis
Mincey contends that because "every fact essential to a conviction must be found beyond a reasonable doubt," a jury may rely on evidence of other uncharged crimes only if it is satisfied that those crimes have been proven beyond a reasonable doubt. He asserts that the jury in his case was erroneously instructed otherwise, consistent with the standard instruction.
The Supreme Court has considered and rejected the argument that it is error to instruct a jury that it may consider other crimes evidence and rely on it if it finds that those crimes have been proven by only a preponderance of the evidence. In People v. Virgil (2011) 51 Cal.4th 1210, 1259 (Virgil), the Supreme Court addressed a defendant's argument that the court had " 'not adequately addressed the conflict between the circumstantial evidence instruction [CALJIC No. 2.01],' which requires proof beyond a reasonable doubt of each essential fact in the chain of circumstances necessary to establish guilt, and CALJIC No. 2.50, which permits consideration of uncharged crimes if they are proven by only a preponderance of the evidence." In addressing the issue, the Virgil court stated:
"We have explained before, however, that these different standards of proof are reconciled by the different purposes for which the evidence is used. When evidence of uncharged misconduct is admitted for the purpose of establishing identity or intent, we have explained that the crimes are mere 'evidentiary facts.' [Citation.] The jury cannot consider them at all unless they find them proven by a preponderance of the evidence. 'If the jury finds by a preponderance of the evidence that defendant committed the other crimes, the evidence is clearly relevant and may therefore be considered. (Evid. Code, § 351; see Huddleston v. United States [(1988)] 485 U.S. [681,] 689 [99 L.Ed.2d 771, 108 S.Ct. 1496].)' (People v. Carpenter, supra, 15 Cal.4th at p. 382.) If the jury finds the facts sufficiently proven for consideration, it must still decide whether the facts are sufficient, taken with all the other evidence, to prove the defendant's guilt beyond a reasonable doubt. (People v. Medina[ (1995) 11 Cal.4th 694,] 763 [(Medina)]; see also People v. Foster (2010) 50 Cal.4th 1301, 1347–1348, 117 Cal.Rptr.3d 658, 242 P.3d 105 [no danger jury would use preponderance of evidence standard to decide elemental facts or issues because instructions on the People's burden and on circumstantial evidence make clear that ultimate facts must be proved beyond a reasonable doubt].)" (Italics added.)

Despite this statement from Virgil, in his reply brief, Mincey argues that the "California Supreme Court in People v. Virgil 'did not address the constitutional implications of such an instruction.' " He contends that the Virgil court was addressing an "admissibility decision," and not a question about the use of evidence and standard of proof, and suggests that the Virgil court's "last passage does not actually address the question of whether the jury must find the facts of the prior uncharged crimes proved beyond a reasonable doubt prior to using those facts as circumstantial evidence of guilt." Mincey further charges that the Virgil court "dispensed with the argument that was presented somewhat summarily based on prior holdings that it declined to reconsider." Essentially, Mincey is arguing that the Virgil court did not consider the "constitutional question" that he raises. We disagree.
The defendant in Virgil argued that the instructions that the trial court had given the jury "were flawed because they 'failed to convey the jury's need to find Mr. Virgil's guilt for the uncharged crimes beyond a reasonable doubt before those crimes could be used as an inference in establishing his identity as the perpetrator of the charged offenses . . . .' " (Virgil, supra, 51 Cal.4th at p. 1259, italics added.) This claim is a constitutional argument—the defendant was arguing that by instructing the jury regarding other crimes evidence, the court had diminished the beyond a reasonable doubt burden of proof; this is, fundamentally, a constitutional claim. Additionally, the argument presented by the defendant in Virgil is precisely the argument that Mincey is making on appeal. Mincey contends that the trial court violated his right to have his guilt proven beyond a reasonable doubt by instructing the jury that it could consider other crimes evidence if it found by only a preponderance of the evidence that Mincey committed the other crimes. We reject Mincey's contention that the argument that he raises in this appeal is distinct from the issue addressed in Virgil and in earlier Supreme Court cases (see, e.g., Medina, supra, 11 Cal.4th at p. 764 ["Defendant argues that when 'other crimes' evidence is offered to prove such matters as intent or identity, these facts should be proved by the 'beyond reasonable doubt' standard usually applicable to facts sought to be proved by circumstantial evidence. But, as noted, the cases have developed special rules for the consideration of other crimes evidence"]). We are bound by the Supreme Court's holding that it is not error to instruct a jury that it may consider other crimes evidence and rely on it if it finds that those crimes have been proven by only a preponderance of the evidence. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 (Auto Equity Sales).)
B. The jury was properly instructed that the People must prove by a preponderance of the evidence that the offenses occurred in California

Mincey further contends that, with respect to counts 4, 8, 9, and 10, the trial court denied Mincey "due process of law" in instructing the jury that the People had to prove that the crimes were committed in California by only a preponderance of the evidence. According to Mincey, the jurisdictional fact of where the crimes were committed is a prerequisite to finding him guilty of the offenses, and thus, they must be proved beyond a reasonable doubt.
Mincey concedes that the Supreme Court has rejected precisely this contention in People v. Betts (2005) 34 Cal.4th 1039, 1052–1053 (Betts). The Betts court approved of its earlier decision in People v. Cavanaugh (1955) 44 Cal.2d 252, which "upheld a jury instruction that required the facts establishing territorial jurisdiction to be proved by a preponderance of the evidence rather than beyond a reasonable doubt." (Betts, supra, 34 Cal.4th at p. 1048.)
Although Mincey concedes that this question has been decided against him in Betts, supra, 34 Cal.4th at page 1048, he nevertheless raises the argument in order to preserve it for review by the Supreme Court and federal courts. As he is aware, however, this court is bound to apply the Supreme Court's holding in Betts, and therefore, must reject his contention on appeal. (See Auto Equity Sales, supra, 57 Cal.2d 450.) For this reason, we reject Mincey's contention regarding the instruction on the standard of proof applicable to facts establishing territorial jurisdiction.
IV.
DISPOSITION
The judgment of the trial court is affirmed.


AARON, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.