P. v. Smith

Filed 6/12/06 P. v. Smith CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed.

Cory Lancelin Smith appeals a judgment arising out of his conviction of two counts of pimping and one count of willfully failing to appear for the rendition of the verdict on the pimping counts. He contends that: (1) the trial court erred in denying his motion for acquittal of the pimping counts based on lack of venue in San Diego County to try those counts; (2) the cumulative effect of evidentiary and instructional errors committed by the court denied him a fair trial; and (3) there was insufficient evidence to establish the willfulness element of the failure to appear count. We conclude that Smith failed to preserve his first contention for appellate review and reject his remaining arguments on their merits. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2003, 19-year-old prostitute Crystal Davis met Smith outside a nightclub in Mission Valley and later registered for a room at a nearby Howard Johnson's Hotel, where she stayed with Smith for nine days. 386, 388; see also 2 RT 279)! Smith told Davis that he was a pimp and Davis agreed to work for him. Smith took photographs of Davis and another prostitute, Stephanie Smith (referred to herein as Stephanie), and posted the pictures on an Internet website called "San Diego Exotics." Smith told Davis what to charge for specific services, explained how to recognize an undercover officer and promised to bail Davis out of jail if she was arrested. Smith, who is Black, instructed Davis that she was not to talk other Black men because he was concerned that she might start working for a different pimp; he also took away her identification.

On March 24, Smith, Davis, Stephanie and another man went to Anaheim, where the women worked as prostitutes out of a motel for about four days. Smith paid for the motel room and gave Davis the clothes she wore while she was working. Contrary to Smith's earlier assurances, he kept all of Davis's earnings.

On March 28, the foursome left Anaheim for Las Vegas, where Smith got each of the women a room and the women continued to prostitute themselves. Smith required Davis to give him all of her earnings, although he paid for her food and clothing and bought her a cell phone, the number for which accompanied her picture on the website. During their stay in Las Vegas, Smith made comments to Davis suggesting that he might hit her and one night Davis heard sounds coming from Stephanie's room suggesting that Smith was hitting Stephanie. On April 13, the group returned to San Diego and Davis quit working for Smith and gave the cell phone back to him.

In May, the San Diego Police Department investigated Smith after discovering suspicious items (including a motel key, several cell phones, Davis's identification, as well as identifications for Stephanie and another woman, and a backpack containing women's lingerie) in his car during an impound search incident to a traffic stop and arrest. As part of the investigation, detectives contacted Davis, who told them about her work for Smith. They also discovered that the cell phone Smith had purchased for Davis, which had the contact number listed for her on the San Diego Exotics website, received 698 phone calls for the month of April.

On October 3, prostitute Janice Perry called 911; when police arrived at her room at the Motel 6 in Mission Valley, Perry reported that Smith, who was her pimp, had beaten her up and taken $400 from her purse. Perry told the officers that Smith went to Stephanie's room at the nearby Days Inn Motel; the officers went to the motel, found Smith and questioned him; they found $400, in the same denominations Perry reported Smith to have taken, in one of Smith's pockets. After Perry identified Smith as her assailant, the officers arrested him. Smith was ultimately charged with two counts of felony pimping and one count of robbery. He thereafter posted bail and was released.

At trial in January 2004, the prosecution introduced evidence of the foregoing, although Perry recanted her accusations against Smith, saying that she had made the false accusations out of jealousy arising from her belief that he was sleeping with another prostitute. Smith failed to appear in court on the day the verdict was announced; the jury convicted him of the pimping counts, but acquitted him of the robbery.

In May 2004, the district attorney charged Smith with willfully failing to appear while on bail. Smith was apprehended in March 2005 and the following month he waived his right to a jury trial on the failure to appear charge and the enhancement allegations in both cases. The court found Smith guilty on the charge and that he had suffered one prior prison term, two prior serious felony convictions and five prior strike convictions. It sentenced Smith to 50 years to life, plus one year, on the pimping counts and a consecutive 5-year term on the failure to appear count. Smith appeals.

DISCUSSION

1. Venue

Penal Code section 777 states the general rule for venue in criminal actions, as follows: "except as otherwise provided by law the jurisdiction of every public offense is in any competent court within the jurisdictional territory of which it is committed." (All further statutory references are to the Penal Code except as otherwise noted.) Thus, venue generally lies in the superior court of the county in which the crime was committed, where the defendant may then be tried. (People v. Posey (2004) 32 Cal.4th 193, 199 (Posey).) Section 781 sets forth one of the many exceptions to the general rule for venue; it provides that "[w]hen a public offense is committed in part in one jurisdictional territory and in part in another, or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more jurisdictional territories, the jurisdiction of such offense is in any competent court within either jurisdictional territory." Where section 781 applies, venue is proper in the superior court in each of the counties in question and the defendant may be tried in any of them. (Posey, supra, 32 Cal.4th at p. 199.)

A defendant forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial. (Posey, supra, 32 Cal.4th at p. 200, citing People v. Simon (2001) 25 Cal.4th 1082, 1086 (Simon).) Here, Smith did not raise the issue of venue until he moved for acquittal pursuant to section 1118.1, which he made after the completion of closing arguments. Smith appears to contend that Simon was wrongly decided; however, unless and until the California Supreme Court invalidates Simon, we are bound by its holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455.)

Smith also argues that because the California Supreme Court's decision in Posey radically changed the law governing venue determinations and because that decision issued during his trial, he should be deemed to have adequately preserved the issue for appeal by virtue of having made the acquittal motion and having argued the venue issue to the jury. However, although Posey rejected the historical rule that venue was a question of fact for the jury and held instead that the issue was one of law for a court's determination, it did not change the existing rule, as stated in Simon, requiring a defendant to raise a challenge to venue prior to the commencement of trial. To the contrary, Posey not only reiterated the holding of Simon, but also set forth the fundamental reasons underlying that holding. There was no confusion in the law as to what was required to preserve the issue, a requirement with which Smith did not comply. In accordance with Simon, a case in which the defendant raised a venue objection by a motion for acquittal after the close of evidence, Smith's objection was untimely and thus was not sufficient to preserve the issue for appeal.

2. Evidentiary and Instructional Errors

A. Admission of Evidence of Uncharged Acts

Smith contends that the trial court erred in admitting "[e]vidence of an unclear amount of uncharged offenses", which he contends should have been excluded pursuant to Evidence Code sections 1101, subdivision (a) or 352. In making this argument, Smith does not specifically identify the precise evidence to which he objects, much less provide an individual analysis of why that evidence was subject to exclusion; rather he simply maintains that all evidence relating to his bad character was inadmissible. Based on Smith's broad-brush approach to this issue, our discussion of the issue will also be of a more general nature.

Evidence Code section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity, but recognizes that there are facts other than criminal propensity to which such evidence may be relevant. (See Evid. Code, § 1101, subd. (b); People v. Catlin (2001) 26 Cal.4th 81, 145.) The statute lists examples of facts that legitimately may be proved by other-crimes evidence; however, that list is not exclusive. (People v. Catlin, supra, 26 Cal.4th at pp. 145-146.) In determining whether the evidence was properly admitted, we must thus begin our analysis by considering whether the uncharged misconduct is relevant to some fact other than his criminal disposition.

Here, we conclude that the evidence of Stephanie's general involvement and participation in the trips to Anaheim and Las Vegas was directly relevant to establish not only the circumstances of the charged offense relating to Davis, but also Smith's motive and intent relating to the trip. We agree, however, that the evidence of Davis's belief that Smith beat Stephanie up during their stay in Las Vegas and the evidence that he bailed Stephanie out after she was arrested for prostitution in December 2003 did not have any relevance other than to establish that Smith had a propensity for violence and pimping, respectively, and that the court thus should not have admitted that evidence.

Having reached this conclusion, however, we also find that the admission of the latter evidence was not so prejudicial as to require a reversal of the judgment. The court specifically instructed the jury regarding the limited purposes for which it could consider the evidence. Further, Davis's testimony regarding the pimping count relating to her was uncontroverted, with Smith's argument to the jury being only that because the evidence did not establish that Davis prostituted herself for him in San Diego County, San Diego was not the proper venue for trial. In addition, in light of (1) the evidence of Perry's statements to the 911 operator and the police officers who responded to her 911 call, (2) the officers' testimony that Perry had what appeared to be fresh injuries (including scratches and bruising on her neck and back), (3) the evidence that Smith had cash in the exact amount and denominations Perry reported stolen in his pocket at the time of his arrest, and (4) the items found in the trunk of Smith's car when he was stopped for a traffic violation, there is no reasonable possibility that the jury would have reached any different conclusion if the evidence of the beating in Las Vegas or Smith's bailing Stephanie out had been excluded.

B. Limitation on Defense Evidence Relating to Perry's Credibility

Smith also argues that the court improperly refused to allow his counsel to follow up with Perry regarding her brief testimony that she had previously made false 911 calls against prior boyfriends or to call witnesses who would have testified that Perry frequently made false crime reports against others (including one in which Perry accused her mother of kidnapping a granddaughter). Assuming, without deciding, that the trial court abused its discretion in not allowing these lines of inquiry (which arguably implicated Evidence Code section 1101, subdivision (a)), the error was not prejudicial because the proposed evidence was not relevant to the pimping counts, but related only to the robbery count, of which the jury acquitted him. In light of the acquittal, Smith's appellate challenge to the limitation on his proffered evidence relating to Perry is moot.

C. Exclusion of Evidence of Smith's Gainful Employment

Smith also complains that the court abused its discretion in excluding proffered evidence that he was employed as a professional rap musician to rebut the prosecution's evidence (consisting of Smith's statements to police at the time of his arrest) that he was unemployed and its related argument that he had to be pimping to support himself. Again, however, even if we assume that the court should have admitted this evidence, we conclude that the error in excluding it was harmless in light of the other, substantial evidence establishing Smith's guilt of the pimping charges.

D. Giving of a Flight Instruction

Finally, Smith objects that the court improperly gave a flight instruction to the jury. A flight instruction is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt and a purpose of avoiding observation or arrest. (§ 1127c; People v. Visciotti (1992) 2 Cal.4th 1, 60.) Again, however, the evidence of Smith's purported flight was not relevant to the pimping counts, but rather related only to the robbery count, making this appellate argument moot.

3. Sufficiency of the Evidence as to the Willfulness of Smith's Failure to Appear

Finally, Smith contends the evidence was insufficient to establish that his failure to appear for the verdict on the pimping counts was willful, that is that he had the specific intent to evade the process of the court. (§ 1320.5; see People v. Wesley (1988) 198 Cal.App.3d 519, 522-523.) In determining whether the evidence is sufficient to support a conviction, we review the record in the light most favorable to the judgment to determine whether there is substantial evidence to support a reasonable trier of fact in finding the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Hatch (2000) 22 Cal.4th 260, 272.) A defendant's failure to appear within 14 days of the required date provides strong circumstantial evidence that he had the specific intent to evade the court's process. (People v. Forrester (1994) 30 Cal.App.4th 1697, 1702-1703.)

Smith was released on bail shortly after his arrest in October 2003, but was notified of the date set for trial and was repeatedly ordered to appear therefor. Smith in fact appeared in court for the four days of trial that preceded the jury's deliberations. On the fifth day, the jury announced that it had reached a verdict and defense counsel informed the court that he had notified Smith of the need to appear; although Smith's family appeared for the reading of the verdict, Smith did not. Smith was arrested on the resulting bench warrant in March 2005, more than a year later.

This evidence described above was more than sufficient to support the trial court's finding that Smith knew of the verdict and willfully failed to appear for its rendition. In fact, the record does not offer any evidence to support a contrary conclusion. (Compare People v. Wesley, supra, 198 Cal.App.3d 519 [evidence suggested that the defendant did not appear in court after a lunch break because he had taken medication leaving him disoriented].)

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

NARES, Acting P.J.

O'ROURKE, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Apartment Manager Attorneys.