P. v. Purnell
Filed 7/19/13 P. v. Purnell CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
SCORPIO DEMAR PURNELL,
Defendant and Appellant.
D062088
(Super. Ct.
No. SCD238470)
APPEAL from
a judgment of the Superior Court
of
County, Laura H. Parsky, Judge. Affirmed.
Janice R.
Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, James D. Dutton and Donald W.
Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Scorpio
Demar Purnell appeals the judgment sentencing him to prison for five years four
months after a jury found him guilty of two counts of pimping. Purnell contends the
admitting three hearsay statements at trial.
We affirm.
FACTUAL
BACKGROUND
Luke
Johnson, a detective with the San Diego Police Department, conducted an
undercover investigation involving a suspected prostitute named Marissa
Williams. As part of that investigation,
Johnson visited various Internet sites on which prostitutes advertise and
located an advertisement for Williams.
Johnson then contacted Williams to set up a "date" for an
"in‑call," i.e., a meeting at a motel to have sex. Williams informed Johnson she charged $220
per hour and directed him to meet her at a certain motel that has a reputation
for prostitution.
Johnson
went to the motel with other undercover police officers. While the other officers stayed outside,
Johnson went to Williams's room and knocked on the door. Williams opened the door, and Johnson entered
the room. Another woman, later
identified as Brittni Silva, was also in the room. When Silva went into the bathroom, Johnson
and Williams discussed their "date."
Williams agreed to perform fellatio for $220. Johnson gave Williams the money and asked her
to use a condom. Williams went to
retrieve a condom and then returned wearing only a brassiere and panties. At that point, Johnson signaled the other
officers who had accompanied him to enter the room and arrest Williams.
The other
officers entered the motel room and escorted Johnson out. While Johnson went to his car and waited in
the parking lot for information from the other officers, they detained Williams
and Silva in the room and conducted a search.
One of the officers found men's clothing hanging near the bathroom and a
laptop computer resting on one of the beds.
The computer contained photographs of Williams and Silva that were used
in Internet advertisements, as well as a photograph of Purnell holding a stack
of cash with a distinctive white band through the middle. The Internet search history of the computer
indicated a user recently had searched for parts for a Dodge Charger and for
information about "burning during intercourse." Based on his discovery of men's clothing in
the motel room and his training and experience that most prostitutes work for
pimps, the officer asked Williams if there was a man in the parking lot waiting
for her, and she said there was. The
officer then contacted Johnson to let him know there was probably a pimp in a
Dodge Charger in the parking lot.
Johnson
located a Dodge Charger in the motel parking lot. Purnell was in the driver seat, and another
man was in the front passenger seat.
Johnson removed the men from the vehicle and conducted a search. Johnson found a laptop computer on which
Purnell's passenger was conducting an Internet search for Dodge Charger
parts. In the glove box, Johnson found
$9,000 in stacked bills, which Williams later told him was her and Silva's
"earnings." The profile of the
stack of cash had the same distinctive white band as that held by Purnell in the
photograph of him stored on the computer found in the motel room. Insurance papers and other documents found
inside the vehicle indicated Purnell was the owner. In the trunk, Johnson found women's clothing,
as well as papers and a container bearing Williams's name.
Johnson also
searched Purnell's person. He found $130
in one of Purnell's pants pockets and more money in his wallet. Johnson confiscated a mobile telephone
Purnell was holding. The telephone had a
Facebook account with Purnell's picture on it.
Purnell's telephone also contained listings for telephone numbers that
matched the numbers posted in Williams's and Silva's Internet advertisements;
when Johnson called those numbers, mobile telephones inside Williams's motel
room rang.
Johnson later
downloaded and analyzed the contents of Purnell's telephone, including 3,000
text messages. Several messages, many
containing jargon commonly used by pimps and prostitutes, indicated that
Williams and Silva were performing sex acts in exchange for money and that
Purnell was in control of the money. For
example, in one conversation between Williams and Purnell, Williams complained
of mistreatment: "How do I deserve
this when I [have] been the only one getting dates[?] [¶]
[T]hat guy is coming tomorrow so that's 400 dollars." Purnell responded that Williams was being
disrespectful by not earning more money:
"$400[?] [B]itch[,] keep
it[,] if that's going help [yo]u represent me better[.] [Y]ou'll never understand[.] [I]t[']s good." The next day, Williams asked Purnell,
"Can I get a few dollars[?]"
On another occasion, Williams wrote that she was "loyal" to
Purnell and "would never lie to [him] when it comes to money." She also asked Purnell to drop her off at a
motel for a "date," and he agreed to do so. In another series of text messages, Williams
reported she had received three requests for "bb" services (i.e.,
bareback sex acts, which are those performed without a condom) through her
Internet advertisements. Purnell then
asked whether Silva had also posted an advertisement on the Internet, and
directed Williams to tell Silva how to do "car dates" (i.e.,
solicitations of motorists as they drive along the street): "[M]oney first[.] Make [them] touch [yo]u first before they say
anything[.] [Yo]u know the get
down." The following day, Williams
sent Purnell a text message that "Brit got a date ☺ 130." That "date" apparently did not go well,
for later that day Silva sent Purnell a message that she needed to see a
physician as soon as possible because "[e]ver since that night [they] had
sex [her] private hasn't been the same.
[It's] burning, [and] in my date I sta[r]ted crying[.] [T]hat's how bad it hurts, even dur[i]ng
sex."
Williams and Silva also had
"dates" with Adam Brooks.
Brooks saw Williams's advertisement on the Internet and contacted
her. On one "date," Williams
brought Silva with her; Brooks had sex with both women, and paid them $800 or
$900. On another "date,"
Brooks paid Williams $500 or $600 for sex.
After Williams was arrested in the undercover operation, she contacted
Brooks and told him "she needed some money to live" because
"something happened to her."
When Brooks asked Williams what she needed, she sent him a text message
with Purnell's name and bank account number, and told him to deposit money into
that account.
PROCEDURAL
BACKGROUND
The People
charged Purnell with two counts of pimping, one for Williams and the other for
Silva. (Pen. Code, § 266h,
subd. (a).) A jury found Purnell
guilty on both counts. The court sentenced
him to prison for the middle term of four years for one conviction, plus a
consecutive term of one year four months for the other. (Id., §§ 266h, subd. (a),
1170.1, subd. (a).)
DISCUSSION
Purnell
challenges the admissibility of three statements the People introduced at
trial: (1) Johnson's statement that
Williams told him the $9,000 found in Purnell's car was from her and Silva's
"earnings"; (2) the text message from Williams to Purnell that
"Brit got a date ☺130"; and (3) Brooks's statement that
Williams telephoned him and asked him to deposit money into Purnell's bank
account. Purnell renews on appeal the
same hearsay objections he raised in the trial court. (Evid. Code, § 1200.) He further argues the admission of these
statements was "extremely prejudicial because, together, they provided the
only direct evidence that [he] was supported, in whole or in part, by
the women's prostitution earnings, a necessary element of the two
charges." The People counter that
the challenged statements were not hearsay, but were "admissible as
'verbal acts' or 'operative facts' of the charged crimes." Alternatively, the People argue that even if
the statements were hearsay, they were admissible under the exception to the
hearsay rule for statements of a coconspirator.
(Id.,
§ 1223.) Lastly, the People contend
any error in admitting the three challenged statements was harmless. We agree with the People that any error in
admitting the statements of which Purnell complains was harmless, and we
therefore need not, and do not, consider the parties' competing contentions
regarding the admissibility of the challenged statements.
Where, as
here, a party challenges a judgment on the ground that evidence was erroneously
admitted over an objection based on the rules of evidence, an appellate court
may reverse the judgment only if the error "resulted in a
Const., art. VI, § 13; Evid. Code, § 353, subd. (b).) We apply the standard articulated in
determine whether the erroneous admission of hearsay resulted in a miscarriage
of justice that requires reversal. (
618-619; People v. Leach (1975) 15
Cal.3d 419, 445; People v. Garcia (2008)
168 Cal.App.4th 261, 292.) Under that
standard, such error is reversible "only when the court, 'after an
examination of the entire cause, including the evidence,' is of the 'opinion'
that it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error." (Watson,
at p. 836.) We therefore must
examine the record to determine whether it is reasonably probable the jury
might not have found Purnell guilty of pimping had the trial court excluded the
three statements he contends were inadmissible hearsay.
We begin by
setting out what the People had to prove for the jury to find Purnell guilty of
pimping. A defendant commits the offense
of pimping when he "know[s] another person is a prostitute" and
"lives or derives support or maintenance in whole or in part from the
earnings or proceeds of the person's prostitution." (Pen. Code, § 266h, subd. (a); see
107, 115; People v. McNulty (1988) 202
Cal.App.3d 624, 630.) A
"prostitute" includes a person who engages in sexual intercourse or
other lewd acts with another person in exchange for money. (Pen. Code, § 647, subd. (b);
309, 317-318.) Thus, to establish the
offenses charged in this case, the People had to prove that Purnell knew
Williams and Silva engaged in sexual intercourse or other lewd acts for money,
and that he derived support from their earnings for engaging in such acts.
Although
Purnell does not dispute that he knew Williams and Silva performed sex acts for
money, he contends that if the statements he challenges on appeal had been
excluded at trial, there would have been no direct evidence that he derived
support from their performance of such acts.
We disagree. In a highly
incriminating series of text messages found on Purnell's telephone, Williams
reported she had an upcoming "date" in which she would earn $400, and
Purnell, using jargon common among pimps and prostitutes, complained she was
being disrespectful by not earning enough money for him. Other text messages found on Purnell's
telephone also established that he directed Williams and Silva to perform sex
acts for money, transported them to certain "dates," and had control
over the money they earned on "dates."
Moreover, the facts revealed in the
undercover police investigation, when considered together, strongly suggested
that Purnell derived support from Williams's and Silva's prostitution. Specifically, (1) Purnell was waiting in
his car outside a motel known for prostitution, while Williams and Silva were
inside the motel and Williams agreed to perform fellatio on Johnson for $220;
(2) Purnell stored Williams's and Silva's telephone numbers in his mobile
telephone; (3) Purnell had $9,000 in cash inside his car; (4) a
photograph of Purnell holding what appeared to be the same stack of cash was
stored in the computer found in the motel room, which also contained
photographs that Williams and Silva used in their Internet prostitution
advertisements; (5) men's clothing was found in the motel room; and
(6) women's clothing, as well as papers and a container with Williams's
name on them, were found in the trunk of Purnell's car. Although this evidence is circumstantial, not
direct, "[c]ircumstantial evidence is as sufficient to convict as direct
evidence." (People v. Reed (1952) 38 Cal.2d 423, 431; accord,
347; People v. Park (2003) 112
Cal.App.4th 61, 68.)
In sum, even without the three
statements that Purnell argues the trial court should have excluded as hearsay,
there was ample evidence to establish that Purnell derived support from the
money Williams and Silva earned as prostitutes.
That evidence was not contradicted at trial, is not challenged on
appeal, and points convincingly to Purnell's guilt. Having reviewed the record, we are of the
opinion that there is no reasonable probability the jury would not have
returned guilty verdicts had the trial court excluded the statements Purnell
challenges on appeal. Any error in the
admission of those statements therefore did not result in a miscarriage of
justice requiring reversal of the judgment.
(Cal. Const., art. VI, § 13; Evid. Code, § 353,
subd. (b); Watson,
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
BENKE,
Acting P. J.
McDONALD, J.
