Filed 1/26/15 P. v. Rios CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058331

v.                                                                       (Super.Ct.No. RIF1201527)

MIKE LUIS RIOS,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger,

Judge. Affirmed in part; reversed in part.

         John F. Schuck, under appointment by the Court of Appeal, for Defendant and

Respondent.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal, and Elizabeth M. Carino, Deputy Attorneys General, for Plaintiff and

Respondent.



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                                              I

                                    INTRODUCTION

       A jury convicted defendant Mike Luis Rios, a former Moreno Valley school board

member, of 17 criminal counts for pimping and pandering—counts 1, 5-8 (B.E.); 10, 15-

19 (V.C.); 20, 23-25 (N.H.); 28 (H.P.); and 29 (A.H.)—and six more counts, counts 30-

35, for insurance fraud. (Pen. Code, §§ 266h, 266i, and 550.)1 The jury’s verdict was

based on overwhelming direct evidence of defendant’s crimes. The court sentenced

defendant to prison for 14 years four months.

       On appeal, defendant successfully argues he could only be convicted of single, not

multiple, counts of pimping as to each of the women involved. The prosecution concedes

this point. Additionally, defendant contends the pandering convictions on counts 28 and

29 should be reversed because defendant did not successfully solicit two women, H.P.

and A.H., to participate in prostitution. Defendant also asserts various instructional errors

and ineffective assistance of counsel. He does not challenge the insurance fraud

convictions. We reverse nine of the pimping convictions (counts 6-8, 16-19, 24-25).

Otherwise, we affirm the remainder of the judgment.2




       1 All statutory references are to the Penal Code.
      2 We deny the petition for writ of habeas corpus. (Davis v. United States (2011)
___ U.S. ___ [180 L. Ed. 2d, 131 S.Ct. 2419].)



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                                             II

                                STATEMENT OF FACTS

A. Background

       In 2011 and 2012, defendant operated a prostitution ring from his house in Moreno

Valley. He recruited several women to work for him as prostitutes and photographed

them at his house either dressed in lingerie or unclothed. He posted advertisements on

Internet websites, with photographs, vague descriptions of services, and a phone number.

The ads did not mention “stripping” or “massages.”

       Defendant used a prepaid cell phone to book appointments. The prostitutes waited

at defendant’s house for clients to call. Defendant would drive the women to a Regency

Inn motel to meet clients.

       A prosecution expert testified that vague Internet ads and prepaid cell phones are

commonly used by pimps and prostitutes to elude police. He explained an “out-call” is

when the prostitute goes to the client and an “in-call” is when the client comes to a

prostitute. A prostitute who works for a pimp is “in pocket.” A prostitute who works

independently is “out of pocket.”

B. Pimping and Pandering of B.E. (Counts 1, 5-8)

       In January 2012, B.E. was 18 years old and already a prostitute when V.C.

introduced her to defendant, who identified himself as a politician for a school.

Defendant asked B.E. to work for him and offered to split what she earned. He asked her

to recruit other prostitutes. Defendant photographed B.E. for online ads. Defendant drove

                                             3
B.E. to her appointments and supplied her with condoms from his car’s glove

compartment. Afterwards, they shared the money. B.E. testified that she worked for

defendant for a year and had sex between 3 and 40 times.

C. Pimping and Pandering of V.C. (Counts 10, 15-19)

       In January 2012, defendant approached V.C., a 19-year-old student. He displayed

his school board credentials and offered to help her obtain her diploma. When V.C.

called the number on his business card, defendant asked V.C. to work for him and to help

him recruit prostitutes. He needed money for his school board campaign. He proposed

they split V.C.’s earnings and she agreed to work for him. In exchange, defendant gave

V.C. the use of his home, car, and electronics. Defendant never discussed stripping with

her.

       Defendant took lingerie photographs of V.C. which he used in ads. Defendant

gave V.C. a cell phone to book appointments for herself and the other prostitutes.

Defendant rented motel rooms for the appointments.

       V.C. worked for about two months, engaged in five to ten acts of prostitution, and

earned several hundred dollars for each act. Defendant drove her to her appointments in

his white Mercedes and supplied her with condoms from the glove compartment. When

she returned to the car, defendant asked her to describe the sexual acts she performed and

he took half her earnings.




                                            4
D. Pimping and Pandering of N.H. (Counts 20, 23-25)

       In January 2012, N.H. answered defendant’s advertisement for a receptionist’s job.

N.H. knew defendant was a school board member. Defendant told N.H. her job would be

to answer phone calls and make appointments for men “to spend time with” the women

or girls. N.H. would also have to pose for sexy photographs to be used in massage

advertisements. Defendant offered to let N.H. and her children live in his house in

exchange for half her earnings and she accepted.

       During two weeks in January and February 2012, N.H. had sex three or four times

with clients. Defendant drove her to the appointments and supplied her with condoms

from the glove compartment. They split the money paid by the client.

E. Pandering of H.P. (Count 28)

       Defendant responded to an advertisement posted by H.P., who was a 17-year-old

prostitute. Defendant told H.P. his wife had been deported and he needed to replace her

income.3 Later that day, H.P. asked to borrow defendant’s Jetta. She told him she was 21

years old.

       The next day, H.P. began living at defendant’s house. Defendant had asked her to

work as a stripper and a prostitute and to recruit others. H.P. denied working for

defendant as a prostitute. Nevertheless, she continued to live with him and to work as a

prostitute. Defendant paid for H.P.’s advertisements and her cell phone bills. H.P. used

       3   Apparently, defendant’s wife also worked as a prostitute.



                                              5
defendant’s car to make “out calls” although she was not licensed to drive. Defendant

asked for part of her earnings but she denied giving defendant any money.

F. Pandering of A.H. (Count 29)

       In January 2012, defendant approached A.H., who was working as a bartender,

and solicited her to work as a prostitute. Defendant promised she would earn between

$500 and $1,000 to be split with him. A.H. declined. She also refused to solicit other

women to act as prostitutes.

G. Insurance Fraud (Counts 30-35)

       H.P. was in a single-car accident in December 2011 while driving defendant’s

Jetta. Defendant told the claims adjuster that, when he was driving, he was injured in a

hit-and-run accident and the car was totaled. He sold the car before the insurance

company could inspect it. Defendant coached H.P. and her passenger about what to tell

the claims adjuster.

H. Defendant’s Evidence

       Defendant was an elected member of the board of the Moreno Valley Unified

School District. He denied being a pimp. A woman who defendant dated in 2011 and

2012 testified that he never asked her to be a prostitute.

       After his wife was deported, defendant operated a stripping and massage business

in November and December 2011. He hired women to work as strippers. He

photographed the women and created advertisements, using vague language. He drove




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the women to their appointments. He denied keeping condoms in the glove

compartment.

      Defendant and his friend, Richard Quinonez, testified about the circumstances of

the Jetta accident. Defendant admitted he lied to the police and the insurance company.

                                            III

                         THE NINE PIMPING CONVICTIONS

      The parties agree that defendant could “only be convicted of one count of pimping

per prostitute” because pimping is a continuous offense. (People v. Culuko (2000) 78

Cal.App.4th 307, 325; People v. Lewis (1978) 77 Cal.App.3d 455, 461-462.) The

evidence showed that B.E., V.C., and N.H. worked for defendant as prostitutes

continuously from November or December 2011 until March 2012. Defendant could

only be convicted of three counts of pimping, one for each woman (counts 5, 15, and 23).

It is not disputed that the other nine pimping counts (counts 6-8, 16-19, and 24-25) must

be reversed.

                                            IV

                                  COUNTS 28 AND 29

      H.P., a minor, was already working as a prostitute when defendant tried to recruit

her to work for him. H.P. testified that she never worked for defendant although she

continued to work as a prostitute while living in defendant’s house and allowing him to

pay her expenses. A.H. refused defendant’s solicitation to work for him. Consequently,

defendant argues that, because he did not succeed in convincing H.P. and A.H. to work

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for him as prostitutes, he could not be convicted of pandering by procurement on counts

28 and 29 under section 266i, subdivision (a): “. . . any person who does any of the

following is guilty of pandering, a felony, and shall be punishable by imprisonment in the

state prison for three, four, or six years: [¶] (1) Procures another person for the purpose

of prostitution.” Defendant also contends there was related instructional error.

       The People agree that a procurement conviction may require the offender

successfully persuade a person to act as a prostitute. (People v. Bradshaw (1973) 31

Cal.App.3d 421, 426.) However, an alternative is section 266i, subdivision (a)(2),

providing that it is pandering by encouragement if a person “[b]y promises, threats,

violence, or by any device or scheme, causes, induces, persuades, or encourages another

person to become a prostitute.” That part of the statute does not require a successful

solicitation: “The statute is clear that the crime of pandering is complete when the

defendant ‘encourages another person to become a prostitute’ by ‘promises, threats,

violence, or by any device or scheme . . . .’ (§ 266i, subd. (a)(2).) There is no

requirement that defendant succeed. (Bradshaw, supra, 31 Cal.App.3d at p. 425.) Nor is

there a requirement that, in selecting his targets, the panderer choose only those who

present a high probability of success. Again, the focus is on the actions and intent of the

panderer, not the target.” (People v. Zambia (2011) 51 Cal.4th 965, 981, fn. 8.)




                                             8
       Throughout the trial the two subdivisions of section 266i, (a)(1) and (a)(2), were

treated somewhat interchangeably. The information charged defendant with violations of

section 266i on counts 28 and 29.4 The jury instruction, using the language of

subdivision (a)(2), referred to persuading or influencing a person to be a prostitute. The

jury verdicts found defendant guilty on counts 28 and 29 of section 266i, subdivision (a).

       It is undeniable that defendant encouraged A.H. and H.P. to work as prostitutes by

promising them various benefits, including living at his house and using his cars. (People

v. Hashimoto (1976) 54 Cal.App.3d 862, 865-867.) A.H., of course refused defendant.

However, even though H.P. claimed she did not work for defendant, she lived at his

house, used his car, and allowed him to pay her prostitution-related expenses.

Defendant’s own testimony established that he made promises to the women he solicited.

Thus, the People argue counts 28 and 29 are supported by substantial evidence of a

violation of section 266i, subdivision (a)(2).

       A conviction under section 266i, subdivision (a)(2), was authorized under the

charging language of the information. Based on substantial evidence, the jury found all

the elements necessary to convict defendant on the theory of pandering by

encouragement. (People v. Lewis (2006) 139 Cal.App.4th 874, 884.) We agree there is

substantial evidence defendant committed pandering by encouragement and therefore any


       4Count 28’s reference to section 266i, subdivision (b)(1), applies because H.P.
was a minor but it is inclusive of section 266i, subdivision (a).



                                                 9
instructional error on these counts was harmless beyond a reasonable doubt. (People v.

Flood (1998) 18 Cal.4th 470, 494.) The purpose of section 266i to combat “the social

evil of pandering” is well-served by upholding the convictions under counts 28 and 29.

(People v. Montgomery (1941) 47 Cal.App.2d 1, 24.)

                                                V

                                     CALCRIM NO. 224

       Because the case was based almost entirely on direct testimony, the trial court

rejected the defense request to give CALCRIM No. 224 involving how to evaluate

circumstantial evidence. Instead, the court gave CALCRIM No. 223, instructing the jury

that both direct and circumstantial evidence are acceptable. The court explained that it is

direct evidence if a witness sees a jet plane fly across the sky and it is circumstantial

evidence if the witness sees a jet’s contrail but not the jet itself.

       Here, as described above, five witnesses testified that defendant solicited them to

work as prostitutes, offering his house and car in exchange for splitting the money they

earned. Defendant also photographed the women, posted the advertisements, arranged

for appointments, transported the women, and supplied them with prophylactics. All of

this information was established through direct testimony. There was actually little, if

any, circumstantial evidence that contradicted or altered the direct testimony.

       Instead, defendant contended that he operated a stripping and massage business,

not prostitution, and the advertisements were vague about what services were being

offered. For these reasons, defendant’s premise that significant circumstantial evidence

                                               10
was offered at trial—and that the jury should have been instructed about how to evaluate

it—is demonstrably wrong. An instruction on circumstantial evidence is not required

where the proof of defendant’s guilt is shown almost entirely by direct evidence. (People

v. Williams (1984) 162 Cal.App.3d 869, 875.) We reject defendant’s assertion on appeal

that the prosecution’s case “rested to a substantial degree upon circumstantial evidence.”

(People v. Marquez (1992) 1 Cal.4th 553, 577.)

       We also reject defendant’s related challenge to the trial court’s explanation of the

distinction between direct and circumstantial evidence using the example of a jet and a

jet’s contrail as alternative ways of showing jet flight. It is not plausible that a jury would

have failed to understand what the trial court meant by its example. To the extent we can

understand it, defendant offers the strained criticism that a contrail “is only circumstantial

evidence [of a jet flying] that such might be a reasonable conclusion when considered in

conjunction with other evidence.” Certainly the jury would not have been misled by the

trial court’s instruction into not considering “any other facts,” as defendant warns. We

conclude the trial court did not err in not giving CALCRIM No. 224 and in giving a

modified version of CALCRIM No. 223.

                                              VI

                                 OTHER INSTRUCTION

       Defendant also argues the court erred by not giving an instruction sua sponte on

defendant’s theory of the case that stripping or massage did not constitute pimping or

pandering. Even if there was any merit to this claim—which there is not—any possible

                                              11
error was harmless. (People v. Breverman (1998) 19 Cal.4th 142, 176-177.) The

evidence was overwhelming that defendant encouraged five people, including a minor, to

be prostitutes. The jury was well-informed about what constitutes pandering and

pimping and that defendant claimed he was operating a business involving stripping and

massage, not prostitution. It is not reasonably probably defendant could have obtained a

more favorable result. For the same reason, defendant cannot establish ineffective

assistance of counsel. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.)

                                           VII

                                     DISPOSITION

       We reverse nine of the pimping convictions (counts 6-8, 16-19, 24-25).

Otherwise, we affirm the remainder of the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              CODRINGTON
                                                                                         J.

We concur:


HOLLENHORST
          Acting P. J.


KING
                         J.




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