Filed 1/22/16 P. v. Henderson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068257
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF146752A)
                   v.

JEROME RYAN HENDERSON,                                                                   OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Stephen G. Herndon and Max Feinstat, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
         Jerome Ryan Henderson was convicted of two counts of human trafficking and
one count of pandering a minor. On appeal he raises issues that reduce to four categories:
The first consists of constitutional challenges to the human trafficking statute and to
Evidence Code section 1161. Second, Henderson challenges the evidentiary rulings of
the trial court in the exclusion of alleged impeachment evidence under Evidence Code
section 352 and in the court’s failure to exclude his own statement to police on Miranda1
grounds. Third, Henderson asserts the evidence was insufficient to sustain his
convictions. Fourth, he contends the trial court erred in sentencing him consecutively on
all counts and failing to apply Penal Code2 section 654. We reject each of Henderson’s
arguments with the exception of the section 654 claim. As to the latter, we agree the trial
court should have stayed Henderson’s sentences on counts 1 and 3. Accordingly, we
remand the matter for resentencing and affirm the judgment in all other respects.
                               PROCEDURAL HISTORY
       On an information filed on May 10, 2013, Henderson was charged with two
counts of human trafficking and one count of pandering. The human trafficking charge
in count 1 alleged that Henderson violated section 236.1, subdivision (b), by depriving or
violating the personal liberty of M.H., a minor, with the intent to effect and maintain a
violation of section 266i. The second human trafficking charge in count 2 alleged that
Henderson violated section 236.1, subdivision (c),3 by causing, inducing or persuading,
or attempting to cause, induce, or persuade, a minor to engage in a commercial sex act,
with the intent to effect or maintain a violation of section 266i. The information further
alleged that Henderson used force, fear, fraud, deceit, coercion, violence, duress, menace,
or threat of unlawful injury in the commission of the offense. The pandering charge set
forth in count 3 alleged Henderson violated section 266i, subdivisions (a)(6) and (b)(2),
by receiving or giving, or agreeing to receive or give, any money or thing of value in

       1Miranda   v. Arizona (1966) 384 U.S. 436.
       2Subsequent   statutory references are to the Penal Code unless otherwise noted.
       3The  current version of section 236.1, subsection (c), effective November 7, 2012,
was added as part of a substantial amendment of section 231.6 by ballot initiative.
(Prop. 35, § 6, as approved by voters, Gen. Elec. (Nov. 6, 2012).)


                                             2.
attempting to procure a minor for the purpose of prostitution. Finally, the information
alleged that Henderson had suffered a prior residential burglary conviction that qualified
as a strike under the Three Strikes law. (§§ 667, subds. (a)-(e), 1170.12.)
       The case proceeded to jury trial on August 13, 2013. The jury found Henderson
not guilty of human trafficking as alleged in count 1, but, instead, guilty of the lesser-
included offense of attempted human trafficking. Henderson was found guilty of human
trafficking of a minor as alleged in count 2, but the “force” or “fear” enhancement was
found to be not true. Finally, the jury found Henderson guilty of pandering as alleged in
count 3. In a bifurcated bench trial, the court found true the allegation that Henderson
had suffered a prior conviction of first degree burglary.
       On October 8, 2013, Henderson was sentenced to an aggregate term of 32 years 8
months in prison, as follows: the upper term of 12 years on count 2, doubled to 24 years
pursuant to section 667, subdivision (e); a consecutive term of four years eight months on
count 1 (half of one-third the midterm of 14 years, doubled); and a consecutive term of
four years on count three (one-third the midterm of six years, doubled).
                                           FACTS
       The instant offenses took place on January 31 and February 1, 2013. At the time,
the victim, M.H., was 13 years old and lived in Bakersfield with her mother and
stepfather. She was a student at a local continuation school because she was on probation
for a misdemeanor conviction; her probation officer was assigned to and worked at the
continuation school as well.
       M.H. testified that, around the middle of January 2013, she and some of her
friends, including K.R., S.C., J.B., and J. met a man called Orion at a Fastrip store when
S.C. and J.B. asked him for cigarettes. Orion gave the group of friends a ride to J.’s
house. Orion spent about 30 minutes chatting with the group in front of the house. He
then left, only to return a little while later. When he left the second time, M.H. left with
him, because she needed a ride home. During the drive to M.H.’s house, Orion gave her

                                              3.
a phone. The next day, Orion turned off service to the phone, but, before doing so, he
sent M.H. a text message stating, “Let’s go get service.” M.H. did not go with him but
kept the phone.
       A couple of weeks later, on January 31, 2013, M.H. went to the Valley Plaza Mall
with K.R. and J.B. M.H. would hang out every day at the Apple store at the mall to use
the electronic devices on display and access the free Wi-Fi service. That particular day,
J.B. was in contact with Orion, and when the three friends were ready to leave, Orion
came to the mall to give them a ride. Orion drove M.H., K.R., and J.B. around, making a
number of stops. First, Orion took them to a Ramada Inn to pick up Henderson, whom
Orion introduced as his cousin, “Tech.”4 Henderson was leaving for Sacramento shortly,
so they stopped at a 7-Eleven store for him to buy a ticket and made other stops before
heading to a “Frosty Freeze.” At one point, when K.R. and J.B. were briefly out of the
car, Henderson asked to see M.H.’s nails and told her she should have them
professionally manicured. He invited her to come to his hotel room to have Ciroc, a type
of liquor. He also commented that M.H. could make a lot of money for him.
       M.H. agreed to go to Henderson’s hotel because she was too scared to refuse his
overtures, but she secretly planned to “ditch” him and Orion when they got to the Frosty
Freeze. At the Frosty Freeze, however, Orion and Henderson continued to encourage her
to come to the hotel, while K.R. and J.B. went in to get food. Orion offered to get M.H. a
new, working phone, and Henderson offered to get her nails done. M.H. went into the
restaurant to confer with her friends, hoping that K.R., who was her best friend, would
rebuff Henderson on her behalf. Instead, Orion and Henderson took K.R. and J.B. aside
and gave them cash. J.B. handed M.H. $30 of that cash, saying Orion and Henderson had
given the money so M.H. would talk to them for four hours. M.H. told K.R. and J.B. that
she had “no business talking to [Orion and Henderson] for four hours.” Instead of

       4M.H.   referred to Henderson as “Tech” throughout her testimony.


                                            4.
standing up for her, the boys pocketed the money and told her to “[j]ust go.” K.R. even
opened the back door of Orion’s car. Not knowing what to do, M.H. got into the car with
Orion and Henderson.
       K.R. also testified about the events that unfolded at the Frosty Freeze. According
to K.R., Orion called him and J.B. outside and told them that Henderson was in love with
M.H. and wanted to talk more with her; at that point, either Orion or Henderson also
handed them some cash. K.R. testified he and J.B. went into the restaurant to recount the
conversation to M.H., who was intrigued by Henderson’s interest and went outside to talk
to him. Henderson told M.H. he would get her hair and nails done, and “she was buying
it all,” nodding her head. Either Henderson or Orion said M.H. could take a taxi back to
J.B.’s house after they were done talking to her. Orion, Henderson, and M.H. then left in
the car.5 It was about 8:00 or 9:00 p.m. at the time.
       As they drove to Henderson’s hotel, he told M.H. that two prostitutes (Vanessa
Johnson and Vannessa Burgess) worked for him; he also asked M.H. to accompany him
to Sacramento, where he was from, and offered to buy her a ticket. Orion dropped M.H.
and Henderson off at the Ramada Inn where Henderson was staying. Henderson took
M.H. to a hidden landing tucked away at the top of a stairwell in the hotel. He told her he
wanted to have sex with her and tugged on her pants. M.H. told him she had her period
and did not want to have sex with him. Henderson then took his pants off, grabbed M.H.
by the hair, and put his penis in her mouth until he ejaculated.6 Julie Gaines, an
investigator for the Kern County District Attorney’s Office, testified that M.H. had told



       5Subsequently,  on redirect examination, K.R. testified that M.H. “acted like she
didn’t want to go get in the car.”
       6Other   witnesses also testified about this incident. Specifically, Vanessa Johnson
testified that Henderson told her he had shown his penis to M.H. to see whether she
would perform oral sex, but she did not. Vannessa Burgess also testified that Henderson
told her he had taken his penis out in front of M.H. for the same purpose.


                                             5.
her Henderson did not specifically threaten her but warned her that if she ever wanted to
go home, she would perform the oral sex.
        After the incident on the landing, Henderson took M.H. to his room on the hotel’s
fourth floor.7 There were three people in the room, P-Boy,8 Vannessa Burgess,9 and
Vanessa Johnson,10 who was naked. Burgess and Johnson worked as prostitutes as part
of a “team” that included Henderson. Henderson told Burgess and Johnson that M.H.
wanted to “hang out” with all of them. Burgess and Johnson showed M.H. internet
advertisements in which they offered their services as prostitutes. Henderson told M.H.
they were prostitutes from Sacramento and they had a “pimp to make money.” He
suggested that M.H. should go to Sacramento the next day with him, Burgess, and
Johnson. He said M.H. could make money with “his girls.” Although Henderson did not
elaborate as to how M.H could make money, he indicated it would be fun and she could
buy new clothes and have everything she wanted. Either Burgess or Johnson told M.H.
that being a prostitute was not a good life, and M.H. should not become one.
        M.H. agreed to go to Sacramento because she was too scared to refuse, but she did
not actually intend to go. Rather, in a bid to get away, M.H. told Henderson that, because
she was on probation, a warrant for her arrest would issue if she did not go to school the
next morning. Henderson said he would call a taxi to take her to school in the morning
but that he would pick her up after school so they could go to Sacramento.


        7This   room was registered to Vannessa Burgess from January 25 to February 2,
2013.
                introduced at trial indicates that P-Boy’s real name is Bradley Marvin
        8Evidence
Sheldon, but M.H. referred to him only as P-Boy, which is the name we use in this
opinion.
        9M.H.   referred to Vannessa Burgess as the “white Vanessa” throughout her
testimony.
        10M.H.referred to Vanessa Johnson, who is African-American, as the “black
Vanessa” throughout her testimony.


                                             6.
       While M.H. was in the hotel room, she used Henderson’s laptop and played Xbox
games. M.H. testified no one told her she could not leave the room, nor did she directly
indicate she wanted to leave. Henderson ordered pizza for everyone and left the room for
a while. M.H. smoked some marijuana but did not drink any alcohol. That night, M.H.
slept in the hotel room in a bed with Burgess. Henderson and Johnson slept in the other
bed, and P-Boy slept on the couch. Henderson woke M.H. at 7:00 a.m. the next morning.
At his direction, M.H. selected some of Burgess’s clothes to wear that day. He called a
taxi to take her to school; the taxi driver was a friend of his. M.H. left her own clothes, as
well as her purse (she was not allowed to bring a purse to school), in the hotel room.
M.H. testified she made sure she got detention for two hours that day so Henderson
would not be able to find her at the end of the regular school day.
       La Frieda Brown, a teacher at M.H.’s school, testified she saw Henderson at the
school on February 1, 2013. Brown was walking students out of the school at the end of
the school day when she noticed a man sitting in a taxi. She asked him why he was there;
he said he was there to pick up his cousin, M.H., to take her to Sacramento. Brown
thought his explanation was strange because M.H. “is Hispanic, and he was black.”
Furthermore, Henderson was unable to identify M.H.’s last name, and Brown heard him
ask someone he was talking to on the phone what M.H.’s last name was. Brown told
Henderson that M.H. was in detention; she also called M.H.’s mother who told Brown to
keep M.H. on campus until she could come to collect M.H. herself. Brown did not know
whether M.H. wanted to go with Henderson or not.
       After his interaction with Brown, Henderson called the school office. He asked
for M.H. to be released from detention because he “need[ed] to take her to Sacramento
right away.” The office clerk found Henderson’s request “fishy” because Henderson did
not know M.H.’s last name. To divert Henderson, the clerk told him M.H. had two hours
of detention when in reality the detention was for 30 minutes. The clerk then called



                                              7.
M.H.’s mother to notify her of the situation. M.H.’s mother came in person to collect
M.H. from school.
       After M.H. got home from school that day, she and her friend, V.F., went to
Valley Plaza Mall, where they met K.R. The three friends spent time at the Apple Store,
where they were accosted by Henderson and P-Boy. Henderson asked M.H. why she
failed to meet him after school and whether she was going with him to Sacramento. He
had brought along M.H.’s clothes and wanted her to change into them and return
Burgess’s clothes, which she was still wearing. He gave V.F. $20 so she could take the
bus home by herself. M.H. and her friends lost sight of Henderson as M.H. ostensibly
looked for a place to change her clothes. P-Boy was following them, but when he
stopped to chat with an acquaintance, M.H. and her friends slipped away and hid in a stall
in a men’s restroom. Shortly thereafter, they snuck out of the mall and took the bus to
V.F.’s house, where M.H. spent the night.
       When M.H. returned to school, her probation officer questioned her about the man
who had tried to pick her up from school in a taxi. M.H. told her about the episode with
Henderson but did not mention the “sexual part.” Her probation officer asked her
whether she wanted to report the incident. M.H. assented and the probation officer called
Detective Cegielski of the Bakersfield Police Department’s Child Abuse Sexual Assault
Unit, who investigated the case.
                                      DISCUSSION
I.     Constitutionality of section 236.1
       A.     Section 236.1, subdivision (c), is not unconstitutionally vague
       Henderson argues that section 236.1, subdivision (c), is unconstitutionally vague
on its face because it “defines the same crime” as the pandering statute, specifically,
section 266i, subdivisions (a)(6) and (b)(2), but prescribes far harsher penalties, thereby
creating the potential for selective enforcement of the statute. The People respond that
Henderson’s vagueness challenge has no merit because section 236.1, subdivision (c),

                                             8.
unambiguously defines the conduct prohibited by the statute and, moreover, contains
clear standards for its application. Henderson does not dispute that section 236.1,
subdivision (c), is internally clear and unambiguous but argues the statute nonetheless is
unconstitutionally vague because it overlaps particular provisions of the pandering
statute. Henderson cites no authority in support of his argument that a statute is
unconstitutionally vague because another statute prescribes lower penalties for the same
conduct.
         “The interpretation of a statute and the determination of its constitutionality are
questions of law” subject to de novo review. (People v. Health Laboratories of North
America, Inc. (2001) 87 Cal.App.4th 442, 445.) For the reasons discussed below, we
reject Henderson’s assertion that section 236.1, subsection (c), is unconstitutionally
vague.
         Initially, the premise of Henderson’s argument, i.e., that section 236.1,
subdivision (c), is identical to section 266i, subdivisions (a)(6) and (b)(2), is itself flawed.
Section 236.1, subdivision (c), states as follows:

         “(c) Any 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, 266i, 266j, 267, 311.1, 311.2,
         311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking.…”
Section 266i, subsections (a)(6) and (b)(2), state as follows:

         “(a) Except as provided in subdivision (b), 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: [¶] … [¶]

         “(6) Receives or gives, or agrees to receive or give, any money or thing of
         value for procuring, or attempting to procure, another person for the
         purpose of prostitution, or to come into this state or leave this state for the
         purpose of prostitution.”




                                                9.
       “(b) Any person who does any of the acts described in subdivision (a) with
       another person who is a minor is guilty of pandering, a felony, and shall be
       punishable as follows: [¶] … [¶]

       “(2) If the other person is under 16 years of age, the offense is punishable
       by imprisonment in the state prison for three, six, or eight years.”
       A comparison of section 236.1, subsection (c), with section 266i,
subdivision (a)(6), indicates the two statutes do not perfectly overlap, since, for one thing,
section 266i, subdivision (a)(6), requires the prosecution to prove the defendant either
gave or received, or attempted to give or receive, money or another thing of value to
procure another person for the purpose of prostitution, while section 236.1,
subdivision (c), does not. Furthermore, even if we assume for the sake of argument that
the two statutes at issue here have identical elements, Henderson’s argument fails.
       “The Fourteenth Amendment to the United States Constitution and article I,
section 7 of the California Constitution, each guarantee that no person shall be deprived
of life, liberty, or property without due process of law. This constitutional command
requires ‘a reasonable degree of certainty in legislation, especially in the criminal
law .…’ [Citation.] ‘[A] penal statute [must] define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.’” (People v.
Heitzman (1994) 9 Cal.4th 189, 199.) If a criminal statute is not sufficiently certain and
definite, it is unconstitutionally vague and therefore void.
       Henderson’s argument that section 236.1, subdivision (c), is unconstitutionally
vague is foreclosed by the holding of United States v. Batchelder (1979) 442 U.S. 114
(Batchelder). Batchelder rejected vagueness and equal protection challenges where the
defendant’s conduct violated two overlapping federal criminal provisions, and he was
charged and sentenced under the one authorizing the greater sentence. In finding that the
overlap in the statutes did not render them unconstitutionally vague, Batchelder stated,
“[t]he provisions in issue here … unambiguously specify the activity proscribed and the


                                             10.
penalties available upon conviction.… That [the] particular conduct [at issue] may
violate both [provisions] does not detract from the notice afforded by each. Although the
statutes create uncertainty as to which crime may be charged and therefore what penalties
may be imposed, they do so to no greater extent than would a single statute authorizing
various alternative punishments. So long as overlapping criminal provisions clearly
define the conduct prohibited and the punishment authorized, the notice requirements of
the Due Process Clause are satisfied.” (Id. at p. 123.)
       Next, Batchelder also firmly rejects Henderson’s contention that, when two
statutes prohibit exactly the same conduct, the resulting prosecutorial discretion is
unconstitutional. (Batchelder, supra, 442 U.S. at p. 124.) First, Batchelder noted, “[t]his
Court has long recognized that when an act violates more than one criminal statute, the
Government may prosecute under either so long as it does not discriminate against any
class of defendants [citations].[11] Whether to prosecute and what charge to file … are
decisions that generally rest in the prosecutor’s discretion.” (Id. at pp. 123-124.) The
court further explained: “Selectivity in the enforcement of criminal laws is, of course,
subject to constitutional constraints.… [But] there is no appreciable difference between
the discretion a prosecutor exercises when deciding whether to charge under one of two
statutes with different elements and the discretion he exercises when choosing one of two
statutes with identical elements. In the former situation, once he determines that the
proof will support conviction under either statute, his decision is indistinguishable from
the one he faces in the latter context. The prosecutor may be influenced by the penalties
available upon conviction, but this fact, standing alone, does not give rise to a violation of
the Equal Protection or Due Process Clause. [Citations.] Just as a defendant has no
constitutional right to elect which of two applicable federal statutes shall be the basis of

       11Like   the defendant in Batchelder, Henderson “does not allege that his
prosecution was motivated by improper considerations.” (Batchelder, supra, 442 U.S. at
p. 125, fn. 9.)


                                             11.
his indictment and prosecution, neither is he entitled to choose the penalty scheme under
which he will be sentenced.” (Id. at p. 125, fn. omitted.)
       Based on Batchelder’s clear reasoning and holding, we find that section 236.1,
subdivision (c), is not unconstitutionally vague, either facially or as applied, simply
because it putatively overlaps another statute with lower penalties. (See also People v.
Superior Court (Caswell) (1988) 46 Cal.3d 381, 395 [stating, citing Batchelder, that “[i]t
is axiomatic the Legislature may criminalize the same conduct in different ways”].) In
considering the application of the void-for-vagueness doctrine, Batchelder focused on the
internal clarity of the challenged statute itself in terms of the conduct it proscribes and the
standards for enforcement and ascertainment of guilt that it encompasses. Since
Henderson does not challenge section 236.1, subdivision (c), on its own terms, his
invocation of the void-for-vagueness doctrine is inapposite.
       B.     Section 236.1, subdivision (e), is not unconstitutionally vague
       Henderson argues that section 236.1, subdivision (e), which was added to
section 236.1 on November 7, 2012, upon voter approval of Proposition 35, is “void for
vagueness as applied to [Henderson] because it deprives him of a defense to count one.”
(Capitalization omitted.) In count 1, Henderson was charged with violating
section 236.1, subdivision (b), which provides:

       “(b) Any person who deprives or violates the personal liberty of another
       with the intent to effect or maintain a violation of Section 266, 266h, 266i,
       266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of
       human trafficking and shall be punished by imprisonment in the state
       prison for 8, 14, or 20 years and a fine of not more than five hundred
       thousand dollars ($500,000).”
Section 236.1, subdivision (e), provides:

       “(e) Consent by a victim of human trafficking who is a minor at the time of
       the commission of the offense is not a defense to a criminal prosecution
       under this section.” (Italics added.)




                                             12.
In instructing the jury regarding count 1, the trial court stated, in accordance with
section 236.1, subdivision (e), “[c]onsent by an alleged victim of human trafficking who
is a minor at the time of the commission of the offense is not a defense to this crime.”
       Henderson argues that section 236.1, subdivision (e), is unconstitutionally vague
as applied to him through the above jury instruction. He contends that, while a minor
cannot consent to performing a commercial sex act, consent is a defense to the element of
section 236.1, subdivision (b), requiring the deprivation or violation of the personal
liberty of another. Henderson argues the court’s instruction to the jury regarding consent
should have reflected this distinction by specifying that a minor’s consent to performing a
commercial sex act or becoming a prostitute is not a defense to the crime of human
trafficking. He asserts the court’s instruction as given was erroneous because it implied
the minor victim’s consent to accompanying and/or remaining with the defendant was not
a defense to the element of depriving or violating the personal liberty of another.
       As with his prior constitutional argument, Henderson fails to cite any authority for
his assertion that section 236.1, subdivision (e), is unconstitutionally vague as applied
because it removes “consent” as a defense to the element of deprivation or violation of
the personal liberty of another in section 236.1, subdivision (b). For the reasons
discussed below, we reject his argument.
       The Legislature and the voters have broad latitude both in defining the elements of
offenses and in specifying or restricting applicable defenses. (See, e.g., People v. Lynn
(1984) 159 Cal.App.3d 715, 733 [Legislature’s removal of defense of diminished
capacity regarding crimes requiring particular mental states did not violate due process];
People v. Martin (2000) 78 Cal.App.4th 1107 [Legislature’s decision to limit application
of defense of voluntary intoxication in certain instances was entirely constitutional].)
Moreover, our Supreme Court addressed a similar issue to the one raised here, albeit with
regard to a different offense, i.e., forcible lewd acts on a child under 14, in People v. Soto
(2011) 51 Cal.4th 229 (Soto). Since the issues are closely analogous despite arising in

                                             13.
the context of different statutes, we find Soto’s reasoning applicable here. As discussed
in more detail below, in the instant matter, the prosecutor argued that Henderson violated
M.H.’s personal liberty by using force or duress, based on the definition of “[d]eprivation
or violation of the personal liberty of another” set forth in section 236.1,
subdivision (h)(3). Accordingly, Henderson’s present contentions are foreclosed by
Soto’s basic holding that a minor victim’s consent is not “logically inconsistent with the
perpetrator’s use of force or duress.” (Soto, supra, at p. 233.)
       The defendant in Soto was charged with three counts of lewd acts on a child under
14 by use of force, violence, duress, menace, or fear. (§ 288, subd. (b)(1).) The jury was
instructed pursuant to CALCRIM No. 1111. Under this instruction, the People must
prove “the defendant used force, violence, duress, menace, or fear of immediate and
unlawful bodily injury to the child or someone else” in committing the lewd act. “Force”
and “duress” are defined as follows: “The force used must be substantially different from
or substantially greater than the force needed to accomplish the act itself. [¶] [Duress
means the use of a direct or implied threat of force, violence, danger, hardship, or
retribution sufficient to cause a reasonable person to do [or submit to] something that he
or she would not otherwise do [or submit to]].” Finally, the version of CALCRIM
No. 1111 read to the jury in Soto stated: “It is not a defense that the child may have
consented to the act.” In Soto, the prosecutor argued in closing that the jury could find
the defendant had violated section 288, subdivision (b)(1), based on his use of force or
duress. (Soto, supra, 51 Cal.4th at p. 236.)
       The defendant in Soto argued that, although there is no language in section 288,
subdivision (b)(1), requiring that a lewd or lascivious act be committed against the child’s
will, such a requirement must be read into the offense because an act committed by force
or duress necessarily implies that the perpetrator applied these pressures in order to
overcome the victim’s will. He contended the evidence that the child freely consented to
a sexual encounter tends to rebut a finding that the perpetrator actually used force or

                                               14.
duress to accomplish the act. The defendant maintained “it is error to instruct a jury that
the victim’s consent is not a defense to charges under section 288(b)(1).” (Soto, supra,
51 Cal.4th at pp. 237-238.)
       The Soto court rejected the defendant’s analysis, holding that the Legislature could
“draft[] the child molestation laws to make issues regarding the child victim’s consent
immaterial as a matter of law in these cases.” (Soto, supra, 51 Cal.4th at p. 238.) Soto
noted, “‘[l]ack of consent is not an element of the offense prohibited by section 288,
subdivision (b), and the victim’s consent is not an affirmative defense to such a charge.
The victim’s consent or lack thereof is simply immaterial.’” (Id. at p. 245, quoting
People v. Bolander (1994) 23 Cal.App.4th 155, 163 (conc. opn. of Mihara, J.).) As to the
requirement of force, Soto, explained: “‘While the fact that the victim actually consents
to a lewd act might render the use of force unnecessary, the victim’s actual consent does
not eliminate the fact that the defendant actually uses violence, compulsion or constraint
in the commission of the lewd act, nor does the victim’s consent diminish the defendant’s
culpability or immunize the defendant from suffering the penal consequences that arise
from a forcible lewd act.’” (Soto, supra, at p. 245, quoting People v. Soto (Sept. 9, 2008,
HO30475) [nonpub. opn.].) Likewise, with respect to implied coercion or duress, Soto
stated that “‘[a] child victim’s actual consent does not eliminate the fact that the
perpetrator utilizes duress in the commission of the lewd act, and does not reduce the
perpetrator’s culpability or eliminate the penal consequences that attach due to the
perpetrator’s conduct.’” (Soto, supra, at p. 245, quoting People v. Soto, supra,
HO30475) [nonpub. opn.].)
       Soto explained that the Legislature had amended section 288, subdivision (b), in
1981 to delete a previous requirement that lewd acts committed by the use of force,
violence, duress, menace, or fear be “‘against the will of the victim.’” (Soto, supra, 51
Cal.4th at p. 245.) In doing so, “it effectively removed the concept of consent from child
molestation cases.” (Ibid.) In the instant case, the voters similarly removed the concept

                                             15.
of consent from human trafficking cases by approving the enactment of section 236.1,
subdivision (e), which clearly and unambiguously states that the consent of a minor
victim is not a defense to any human trafficking offense. Just as it was a “legitimate
exercise of the Legislature’s authority” to remove the concept of consent from child
molestation cases, so too may the voters legitimately remove the concept of consent from
human trafficking cases involving minor victims. (Soto, supra, at p. 246.) Both acted to
“protect young children, who may make ill-advised ‘choices’ when under the coercive
influence of an overreaching adult,” and to shift the focus from the minor victim to the
“the conduct of the assailant.” (Id. at pp. 245-246.)
       With respect to the human trafficking offense at issue here, section 236.1 defines
“depriv[ing] or violat[ing] the personal liberty of another” as including “substantial and
sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit,
coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another
person, under circumstances where the person receiving or apprehending the threat
reasonably believes that it is likely that the person making the threat would carry it out.”
(§ 236.1, subds. (b) and (h)(3).) Just as the prosecutor in Soto argued the defendant could
be convicted of committing a forcible lewd act if the jury found he had acted with force
or duress, in the instant case, the prosecutor also argued that Henderson was guilty of
human trafficking under section 236.1, subdivision (b), because he violated M.H.’s
personal liberty by force or duress. Specifically, the prosecutor argued Henderson
deprived M.H. of her personal liberty when he forced her to perform oral sex on him and
when he kept her in his hotel room overnight. The jury was instructed, and the
prosecutor also told the jury, that duress, as defined in section 236.1, includes “a direct or
implied threat of force, violence, danger, hardship, or retribution sufficient to cause a
reasonable person to acquiesce in or perform an act which he or she would otherwise not
have submitted to or performed .…” (§ 236.1, subd. (h)(4), italics added.)



                                             16.
       The definition of duress provided to the jurors in the instant case is virtually
identical to the definition of duress contained in CALCRIM No. 1111 that was read to the
jurors in Soto (see above). Soto noted the defendant there erred in “assuming lack of
consent must be proven when the prosecution relies on duress because this term
necessarily implies that the victim’s will was overcome.” (Soto, supra, 51 Cal.4th at
p. 246.) Rather, “the legal definition of duress is objective in nature and not dependent
on the response exhibited by a particular victim.” (Ibid.) “Because duress is measured
by a purely objective standard, a jury could find that the defendant used threats or
intimidation to commit a lewd act without resolving how the victim subjectively
perceived or responded to this behavior.” (Ibid.) Soto concluded that, “[c]onsistent with
the language of section 288 and the clear intent of the Legislature, the focus must be on
the defendant’s wrongful act, not the victim’s response to it.” (Ibid.)
       Soto’s analysis applies equally to the instant case as the jurors were instructed with
the same definition of duress. Here, the prosecutor specifically argued to the jury that,
“when you consider personal liberty—and you’ll see this in other jury instructions—you
have to use a reasonable person in the victim’s situation” and did not argue that the
victim’s consent was not a defense. (Italics added.) Subsequently, in giving the jury the
definition of duress, the prosecutor noted that the issue as to the element of personal
liberty was whether the duress was “enough to cause a reasonable person of ordinary
sensitivity to do or submit to something that he or she would not otherwise do or submit
to,” specifying that the reasonable person in this case was a reasonable 13 year old.
       Finally, Soto referenced the analysis in People v. Verdegreen (1895) 106 Cal. 211
in which the defendant argued that consent was a defense to an assault with intent to
commit rape because the crime necessarily implied resistance by the person assaulted.
(Soto, supra, 51 Cal.4th at p. 247.) “We disagreed, explaining, ‘It is true that an assault
implies force by the assailant and resistance by the one assaulted; and that one is not, in
legal contemplation, injured by a consensual act. But these principles have no

                                             17.
application to a case where under the law there can be no consent. Here the law implies
incapacity to give consent, and this implication is conclusive. In such case the female is
to be regarded as resisting, no matter what the actual state of her mind may be at the time.
The law resists for her.’” (Id. at pp. 247-248, quoting Verdegreen, supra, at p. 215.)
       Under Soto’s reasoning, the application of section 236.1, subdivision (e), to
Henderson did not violate his due process rights.12 The jury was properly instructed that
consent is not a defense to human trafficking under section 236.1, subdivision (b), based
on the plain language of section 236.1, subdivision (e). Finally, Soto addressed an
offense under section 288, which, by definition, is committed against a victim under the
age of 14. Therefore, in applying the holding of Soto to this case, we are mindful that
M.H. was 13 years old at the time of commission of the offense. Although we recognize
that section 236.1 defines a “minor” as “a person less than 18 years of age,” we need not
and did not consider whether our analysis would be different had the victim in this case
been between the ages of 14 and 18. (§ 236.1, subd. (h)(7).)




       12In  Soto, Justice Werdegar, in a concurring and dissenting opinion joined by
Justices Kennard and Moreno, stated as follows: “Because the victim’s freely given
consent is inconsistent with the commission of a lewd act by use of duress, menace or
fear, as section 288(b)(1) employs those terms, to instruct a jury weighing such charges
that the child’s consent is not a defense is potentially confusing. While consent is not an
affirmative defense to charges under section 288(b)(1), evidence of consent tends to
negate the statutory element that the lewd act be committed by use of duress, menace or
fear. An instruction that consent is not a defense might lead a reasonable juror to
improperly disregard any evidence of freely given consent put forward by the defense,
rather than considering that evidence, in deciding whether the prosecution has met its
burden to prove the child’s compliance was in fact produced by duress, menace or fear of
bodily injury.” (Soto, supra, 51 Cal.4th at p. 252 (conc. & dis. opn. of Werdegar, J.).)
Henderson essentially makes the same point. We are persuaded, however, that Soto is
closely analogous to this case, so we apply the reasoning of the Soto majority.


                                            18.
II.    The trial court properly excluded, under Evidence Code section 352, statements
       made by M.H. in a separate criminal matter
       During the hearing on motions in limine held prior to trial, the parties presented
arguments regarding the admissibility of evidence of a prior incident involving M.H. The
prior incident resulted in a separate criminal case, against an unrelated defendant, that
was pending in the Kern County Superior Court at the time. The unrelated defendant in
the separate case was charged with violating section 288, which prohibits the commission
of lewd and lascivious acts on a child under 14. During the investigation of that case,
M.H. had provided a statement to the police, which Henderson wanted to use in cross-
examining her. The trial court found that M.H.’s statements from the separate case were
inadmissible under Evidence Code section 352. Henderson now argues the trial court
erred in excluding the statements. We disagree.
       A.     Background
       The prosecution provided a police report about the prior incident to Henderson’s
defense counsel. M.H. had been found in a car with another man and in her statement to
the police admitted she had sex with him on several occasions because he had threatened
her and she was afraid of him. Although the facts of the prior incident remain unclear on
appeal, defense counsel argued that M.H. had engaged in prostitution, and, when she was
caught she lied, stating she acted out of fear to avoid getting into trouble. Counsel
contended that M.H.’s statements regarding the prior incident were admissible to
impeach her credibility in the instant case based on a pattern-of-conduct theory. Because
she had claimed fear in a prior matter, she was once again lying in the present case that
she had spent the night at Henderson’s hotel room out of fear. Counsel asserted that the
details of the prior incident constituted relevant impeachment evidence, i.e., to show
M.H. “consented” to orally copulating Henderson on a hidden landing at the Ramada Inn
and that, when caught in a difficult situation, she utilized the previously manufactured
excuse of being afraid so as to avoid getting in trouble.



                                             19.
       More specifically, at trial defense counsel characterized the significance of M.H.’s
statements regarding the prior incident as follows:

       “The issue is that in the other case, [M.H.] is found in a vehicle with an
       adult male. He is acting nervous and fidgety. CHP call for the sheriff or
       the BPD…. They come out to do this investigation, and they get statements
       from the guy saying that he had sex with her over in this orchard. They
       talked to her about it. She said this happened on multiple occasions with
       this same guy, that he has paid her.

               “Now, all of that I really don’t care about, except for this part.
       When asked why she didn’t report it, why she didn’t say anything to her
       mother, why she continued to go with this guy—because it’s on multiple
       occasions. She goes to the orchard again and again and again. She
       willingly gets in the car with him. When asked why she does these things,
       she says, ‘Oh wait. He threatened me.’ So all of a sudden we have an
       after-the-fact report of some kind of force or fear when there’s a pattern of
       willing conduct.

               “The reason that’s relevant in this case is that this same victim—the
       same alleged victim goes to a hotel with my client. She spends the night in
       the hotel. She leaves, goes to school the next day. Mr. Henderson shows
       up at the school to pick her up to take her to Sacramento, and then she
       doesn’t go with him. Her mother gets called. And her mother doesn’t
       know anything about this incident, and so then she’s asked about it.
       [¶] … [¶] … What does she do? She resorts to the same thing that she did
       before. She said, ‘It was against my will.’ First she said, ‘We went to the
       hotel. I didn’t do anything wrong. We hung out, played video games, ate
       pizza.’ When pressed, she said, ‘Yeah. I engaged in this oral copulation
       with the guy.’ Then when asked again, yes, it was by force or duress.

              “So my point is I am not trying to bring this in to show that she is an
       unchaste person or to somehow throw her under the bus as this immoral
       woman of the night. What I am trying to show is that we have a—[to] use
       the Court’s term—she is going to be on the stand under a false aura of
       credibility if she is not—if I am not permitted to cross-examine her on the
       exact same explanation she used before when she was caught engaged in
       prostitution.

               “So my point is—I’ll actually back up a little bit more. The facts in
       this case indicate that Mr. Henderson paid two other guys some amount of
       money to spend a couple of hours with [M.H.]. So it certainly looks like
       another act of prostitution, and then when questioned about it, she makes

                                            20.
       the same claim that she made before. It’s the magic bullet. It’s the get-out-
       of-jail card. It’s how she explains her way out of this kind of trouble.
       When questioned about it, she comes up with this threat theory.”
       The prosecution had preemptively moved, in its limine motion No. 8, to exclude
M.H.’s statements regarding the prior incident. The prosecution argued that evidence of
the prior incident was inadmissible under Evidence Code section 1161, subdivision (b),13
as the defense was essentially attempting to use M.H.’s prior sexual history to impeach
her credibility. The prosecution questioned the probative value of a 13-year-old’s
statements in an unrelated, pending child molestation case, when the purported falsity of
the statements was purely speculative. The prosecution argued, in the final analysis, that
evidence of M.H.’s statements relating to the prior incident should be excluded as more
prejudicial than probative under Evidence code section 352.14 Specifically, the
prosecutor contended as follows:

       “The People’s position is it’s highly prejudicial and not probative because
       she’s in some other situation—and I appreciate that the defense wants to
       call it an act of prostitution. I would note that what the charge is against the
       defendant in that particular case is 288. But because she happens to be in
       another situation in which sex occurs and she has some internal feeling of
       fear, that somehow impeaches her because in this particular case she is with
       an adult male who engenders in her some fear and she doesn’t …
       immediately report to authorities. We all know that in cases of child
       molest, it’s often the case that they don’t report. So that would be, in
       essence, saying there’s this one other molest that occurred with her and she
       didn’t report immediately about force or fear. Now there’s this new one

       13Evidence   Code section 1161 was added to the Evidence Code effective
November 7, 2012, upon voter approval of Proposition 35. Evidence Code section 1161,
subdivision (b), provides as follows: “Evidence of sexual history or history of any
commercial sexual act of a victim of human trafficking, as defined in Section 236.1 of the
Penal Code, is inadmissible to attack the credibility or impeach the character of the
victim in any civil or criminal proceeding.”
       14Evidence   Code section 352 provides as follows: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) creative substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”


                                             21.
       that occurs, and she doesn’t report immediately about force or fear. I don’t
       see, first of all, how the fact that it’s occurred twice makes it a lie and,
       second of all, how that in any way is really of any probative value.…
       [¶] … The second part is sexual history. How you can possibly talk about
       what happened in this case without introducing her sexual history—and it is
       an attempt to impeach her credibility. It is just an end run around 1161.…
       [¶] So the People would ask that any mention of that case be excluded or
       anything to do with what she said or didn’t say as being highly prejudicial
       and not probative.”
       Defense counsel strenuously argued that Evidence Code section 1161 did not
apply because he was “not asking the Court to admit evidence of M.H.’s prior sexual acts
for the purpose of saying she is not credible on account of this prior sexual act,” which is
“what 1161 prohibits”; in contrast, he was simply seeking to admit “statements made in
relation to those and a pattern of conduct.” To avoid any confusion in this regard,
counsel suggested the court give a “limiting instruction that complies with 1161,” to the
effect that the jury may not consider M.H.’s prior sexual acts or acts of prostitution “to
determine whether she is credible.” Counsel argued that the evidence relating to her prior
sexual acts would only be admissible for purposes of determining “this pattern of her
statement[s] and her motivation for making the statements and also the issue of whether
or not she was actually … under duress, force or fear at the time of this oral copulation or
[whether] she was there of her own free will .…” Counsel stated that he “agree[d] at her
age she doesn’t legally have the competence to consent, but there is a big difference
between a minor consenting even though she doesn’t have the legal capacity to do it and
a minor forced to do something because she is afraid to be harmed.”
       After considering the parties’ arguments, the court ruled the evidence of M.H.’s
prior statements was inadmissible pursuant to Evidence Code section 352. Although the
court noted in passing that there were sound policy considerations underlying the
enactment of Evidence Code section 1161, the court analyzed the issue through the lens
of Evidence Code section 352. Thus, tracking the language of Evidence Code
section 352, the court noted that evidence regarding the prior incident should be excluded


                                             22.
“if not because it may be confusing and misleading, [because] it may also undertake a
substantial amount of time in proving something that is otherwise not necessarily
provable.”15 The court went on to rule as follows:

              “The comment was made numerous times regarding [M.H.] and her
      testifying, and if she were to testify without this information being
      presented to the jury, that she would be testifying under a false aura or false
      sense of credibility, and in that circumstance, this court has not been
      persuaded.

              “It does appear to the Court that whether or not she was threatened
      in the other case[,] or whether or not she feared for her life because the
      defendant knew where she lived in the other case[,] would justify her not
      disclosing immediately or would justify a delay of some sort or would be
      consistent with lying certainly is not for this court. That is a separate and
      distinct case, and that case will have its day in court in due time.

              “Unlike In Limine Motion No. 9, wherein [M.H.] has conducted
      conduct of moral turpitude and that certainly is not in dispute and a
      question in this case, her involvement in her prior sexual case which is
      pending before the court, certainly this is a contentious issue as to whether,
      in fact, she was lying or whether it was germane and truthful when she
      stated she was in fear for her life. There is a dispute as to whether she was
      lying or not, unlike In Limine Motion No. 9, wherein there is no dispute
      that she committed moral turpitude conduct.

             “For those reasons, it does not appear to the Court that the probative
      value, if any, under Evidence Code Section 352(b) would outweigh the
      prejudicial effect if it was presented.

              “Additionally, under … 352(b) nor under 352(a), in trying to present
      this information and evidence, whether it would consume substantial court
      time in presenting something, that still is not as dispositive as [a conviction
      for a crime of moral turpitude] .…”



      15In  outlining these substantive standards of Evidence Code section 352, the court
nominally referenced Evidence Code section 1161. However, taken in context, the
reference to Evidence Code section 1161 appears to be accidental in that either the court
misspoke or a transcription error occurred. In any event, in further analyzing the issue
and making its ultimate ruling, the court explicitly relied on Evidence Code section 352.


                                            23.
The court thus granted the People’s motion, as stated on the record, to exclude evidence
of the prior incident at issue in the separate section 288 case.
       A week later, after jury selection, defense counsel—apparently wanting to make a
record of his objections to Evidence Code section 1161 although the court had not
applied it in the case—stated he had additional objections to the court’s ruling to
“exclude any evidence regarding [M.H.’s] prior activity as a prostitute.” Counsel
asserted that, because Evidence Code section 1161 contained the word “victim,” it
violated the presumption of innocence; he also argued that Evidence Code section 1161
violated the confrontation clause. The court stated that it had “not been persuaded to
change the previous ruling.” Since it did not have a transcript of its previous ruling, the
court could not recollect the “minor” role of Evidence Code section 1161 therein. Rather,
the court reiterated that its ruling was based on Evidence Code section 352, both
subdivisions (a) and (b). The court stated as follows:

              “And in granting In Limine Motion No. 8, the Court exhausted
       measures as it relates to 352, both [subdivisions] (a) and (b), and did make
       reference consistent with [the prosecutor’s] representation that it would
       effectively be a trial within a trial with predetermining whether the
       complaining witness in this case actually lied in the previous case. That
       was an endeavor this court was unwilling to make and is still unwilling to
       make recognizing the sensitive nature of that particular area even though it
       might be critical as it relates to the defendant’s case.

              “In balancing under 352, the Court’s previous ruling still stands, and
       the Court abides by that and has not been persuaded to change the
       balancing test previously analyzed.”
       B.     Analysis
       Under Evidence Code section 352, the court must determine whether evidence that
is otherwise admissible must be excluded because its probative value is substantially
outweighed by the probability that its admission will necessitate undue consumption of
time or create a substantial danger of undue prejudice, confusion of the issues, or
misleading the jury. The court enjoys broad discretion in making this determination, and


                                             24.
its exercise of discretion under section 352 “will not be disturbed on appeal except upon a
showing that it was exercised in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice. [Citations.]” (People v. Brown (2011) 192
Cal.App.4th 1222, 1233.) “The weighing process under [Evidence Code] section 352
depends upon the trial court’s consideration of the unique facts and issues of each case,
rather than upon the mechanical application of automatic rules.” (People v. Jennings
(2000) 81 Cal.App.4th 1301, 1314.)
       Here the trial court acted well within its broad discretion in excluding, under
Evidence Code section 352, M.H.’s statements regarding the prior incident. The defense
sought to introduce M.H.’s statements to show that she consented to orally copulating
Henderson at the Ramada Inn and spending the night with him in his hotel room.
However, since consent is not a defense to the offenses Henderson was charged with, the
evidence had virtually no probative value. (§ 236.1, subd. (e); People v. Hobson (1967)
255 Cal.App.2d 557, 561 [under § 266i, “[a] woman’s consent to becoming a prostitute is
immaterial”].) Furthermore, the trial court properly concluded that, to the extent the
evidence had any marginal probative value, it was substantially outweighed by the fact
that its admission would require a trial within a trial to establish the falsity or veracity of
M.H.’s statements, resulting in an undue consumption of time. (See People v. Tidwell
(2008) 163 Cal.App.4th 1447, 1458 [evidence of allegedly false, prior allegations of rape
made by victim properly excluded under Evid. Code, § 352 in rape case because proving
falsity of prior allegations would cause significant diversion]; People v. Hamilton (2009)
45 Cal.4th 863, 930 [trial court did not abuse its discretion under Evid. Code, § 352 by
excluding evidence of limited probative value that “would have required ‘a mini-trial’”];
People v. Jones (2003) 30 Cal.4th 1084, 1108-1109 [Evid. Code, § 352 properly applied
to exclude evidence that was “not particularly probative” and “would have required
evidence of the details of an otherwise unrelated crime”].) The trial court was also



                                              25.
justifiably concerned that the details of M.H.’s prior sexual activity would have distracted
the jury and potentially led to undue prejudice and confusion of issues.
       Henderson further argues the trial court erred in excluding M.H.’s statements
regarding the prior incident under Evidence Code section 1161, and that section 1161 is
unconstitutional because it violates due process as well as the rights to present a defense
and to confront witnesses under the United States Constitution. However, we need not
reach these issues because the trial court did not base it ruling on Evidence Code
section 1161, and Henderson was not prejudiced by any application of the statute.16

III.   The trial court properly denied Henderson’s motion to suppress
       Henderson argues the trial court erred in denying his motion to suppress a
statement he gave to Detective Cegielski because Henderson’s Miranda waiver was
invalid. We disagree.
       A.     Background
       The trial court held an Evidence Code section 402 hearing regarding the
admissibility of Henderson’s statement to Detective Cegielski. In investigating the
present case, Detective Cegielski had questioned Henderson on February 13, 2013, at the
Rio Cosumnes Correctional Facility in Sacramento County, where he was serving time
for a parole violation; at the time, Henderson had not been arrested for the instant
charges. Detective Cegielski had previously talked to M.H. about her encounter with
Henderson, and she had identified Henderson from a photograph or other image.
Detective Cegielski intended to refer the matter to the district attorney’s office upon
concluding his investigation.
       Before commencing his questioning of Henderson, Detective Cegielski read the
Miranda warnings to him from a “department-issued” card; Henderson stated he

       16To  the extent the trial court’s ruling was based on Evidence Code section 1161,
any error is harmless because the trial court properly concluded that M.H.’s prior
statement was inadmissible under Evidence Code section 352.


                                            26.
understood his rights. Henderson then asked whether he was being charged with
anything. Detective Cegielski told him, “No, but you are in custody, and if I am talking
to you like this, I got to read you this stuff.” Henderson responded, “The only reason—if
I am not being charged with anything, that’s the only—you know what I am saying? If I
am being charged with something, I want an attorney.” Detective Cegielski replied,
“Well, I am not charging you with anything right now.” Detective Cegielski then asked
Henderson questions related to the instant matter, and Henderson answered the questions.
       At the conclusion of the Evidence Code section 402 hearing, the prosecutor argued
as follows:

       “There was a valid Miranda [waiver] given. There was a discussion about
       the circumstances under which the defendant wanted an attorney. He didn’t
       articulate that he wanted an attorney at that moment but rather that if he is
       being charged with something, he wants an attorney. Detective Cegielski
       told him he was not being charged with anything right now, which was, in
       fact, the case. So it’s the People’s position that the statements made
       subsequent to this are admissible.”
Defense counsel contended that Henderson’s Miranda waiver was invalid because “the
detective deceived him into, in essence, waiving his right to an attorney .…” Defense
counsel argued as follows:

       “In this case the detective intended to have him charged. He was charging
       him with something. He deceived him and procured a waiver of his Sixth
       Amendment right to an attorney and consequently a Fifth Amendment right
       against self-incrimination, and he got statements from him.”
The court concluded that “the Miranda advisal was properly given and that the defendant,
understanding those rights, either expressly or impliedly waived them depending on what
else transpired in that transcript and thereafter began to answer the questions voluntarily.”
       Detective Cegielski then testified about the statement Henderson had provided.
Henderson, who was 22 years old at the time of the questioning, admitted he knew Orion
Johnson, albeit by a different name. He also admitted he had tried to collect M.H. from
her school on February 1, 2013. Later that afternoon, Henderson called K.R., found out


                                            27.
that M.H. was at the Apple Store in the mall, and went there to find her. He gave V.F.
$20 at the mall. After M.H. left to change clothes, Henderson looked for her but did not
find her. Henderson admitted he went with Orion to drop off M.H., J.B., and K.R. at the
Frosty Freeze and gave M.H. some money. Initially Henderson denied staying at the
Ramada Inn in Bakersfield but eventually he admitted he had stayed there. He denied
acting as a pimp for Vanessa Johnson and Vannessa Burgess. He admitted M.H. had
stayed overnight in his hotel room but denied he had sex with her or that she engaged in
any acts of prostitution. Detective Cegielski testified Henderson initially stated he did
not stay in the same hotel room as M.H., but eventually Henderson admitted he spent the
night in the same room.
       B.     Analysis
       Henderson argues his waiver of Miranda rights was involuntary and unknowing
because it was obtained by deception on the part of Detective Cegielski. He argues
Detective Cegielski misled him by stating he was not being charged with anything at that
moment since the detective fully intended to refer the case to the district attorney. Once
again, Henderson fails to provide any authority demonstrating that, under these
circumstances, his waiver was invalid. For the reasons that follow, we reject his
contention.
       Miranda v. Arizona, supra, 384 U.S. 436, held that a defendant’s statements made
during a custodial interrogation are admissible against him only if he knowingly and
intelligently waived his rights to remain silent and to the presence and assistance of
counsel. (People v. Cruz (2008) 44 Cal.4th 636, 667.) “The waiver must be ‘voluntary
in the sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception’ [citation], and knowing in the sense that it was
‘made with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.’ [Citation.]” (People v. Sauceda-Contreras
(2012) 55 Cal.4th 203, 219.) The prosecution bears the burden of demonstrating the

                                             28.
validity of the defendant’s waiver by a preponderance of the evidence. (People v. Dykes
(2009) 46 Cal.4th 731, 751.)
       “In reviewing a trial court’s Miranda ruling, we accept the court’s resolution of
disputed facts and inferences and its evaluations of credibility, if supported by substantial
evidence, and we independently determine, from the undisputed facts and facts properly
found by the trial court, whether the challenged statement was illegally obtained.
[Citation.]” (People v. Bacon (2010) 50 Cal.4th 1082, 1105.)
       Henderson’s argument is foreclosed by People v. Suff (2014) 58 Cal.4th 1013
(Suff). In Suff, the defendant, who was suspected of being a serial killer, stated during a
custodial interrogation, “‘I need to know, am I being charged with this, because if I’m
being charged with this I think I need a lawyer.’” (Id. at p. 1067.) The investigating
officer responded, “‘Well at this point, no you’re not being charged with this.’” (Ibid.)
The prosecutor was also present for the interrogation, albeit he or she was monitoring it
from another room. (Id. at p. 1068.) The defendant argued the investigating officer had
“‘responded deceptively’ to his question by stating that he was not being charged ‘at this
time,’” because she already had evidence linking him to one murder and charges against
him were virtually certain. (Id. at p. 1069.) He contended the investigating officer’s
“failure to inform him of ‘critical information’ and ‘the severity of his predicament’
rendered his waiver of rights under Miranda involuntary and unknowing.” (Id. at
p. 1070.) The Suff court rejected this argument, explaining its decision as follows:

       “Miranda requires that the person in custody be informed of the right to
       remain silent, the consequences of forgoing that right, the right to counsel,
       and that if the person is indigent, a lawyer will be appointed. [Citation.]
       There is no requirement that, before a person may validly waive his
       privilege against self-incrimination, he must be apprised of the evidence
       against him, the ‘severity of his predicament,’ or the chances he will be
       charged.” (Suff, supra, 58 Cal.4th at p. 1070.)




                                             29.
Under Suff, Detective Cegielski was not deceptive, and Henderson’s Miranda waiver was
not involuntary or unknowing.17 The trial court, in turn, did not err in denying
Henderson’s motion to suppress his statement.
IV.    The evidence was sufficient to sustain the jury’s verdicts on all counts
       The jury found Henderson guilty of one count of attempted human trafficking
pursuant to section 236.1, subdivision (b), one count of human trafficking of a minor
pursuant to section 236.1, subdivision (c), and one count of pandering a minor under the
age of 16, pursuant to section 266i, subdivisions (a)(6) and (b)(2). Henderson argues
that, “[t]o prove all of these counts, the state had to prove [he] intended to violate Penal
Code section 266i, i.e. that [he] had the intent to cause M.H. to engage in commercial sex
acts,” but “there was no evidence to support that conclusion.” We reject Henderson’s
claim that the evidence was insufficient to prove he had the intent to influence M.H. to
become a prostitute. (See CALCRIM No. 1151.)
       When the sufficiency of the evidence is challenged on appeal, “the court must
review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d. 557, 578.)
       M.H. testified that when she met Henderson, he told her “[she] could make him a
lot of money and that [she] should come with him to his hotel.” He offered to give her
Ciroc liquor if she went with him to his hotel room. He and Orion also gave money to


       17To  the extent Henderson argues that he provided a conditional waiver of his
Miranda rights in that he had only waived his rights if he were not being charged with a
crime, this argument is also foreclosed by Suff, supra, 58 Cal.4th 1013. Just like the
defendant in Suff, Henderson “did not state that he would speak to the detective[] without
the assistance of counsel only if he would not be charged with the crimes.” (Id. at
p. 1070.) Suff held that an ambiguous reference to counsel, as the one here, does not
constitute a “limitation on [a defendant’s] waiver of his Miranda rights.” (Ibid.)


                                             30.
J.B. and K.R. so they would encourage M.H. to go with Henderson; M.H., in turn,
received $30 from J.B. En route to the hotel, Henderson told M.H. he was from
Sacramento and was going back there, and he could buy her a ticket to go with him. He
also told her, en route to the hotel, that “he had two prostitutes,” “one was his girlfriend,
supposedly. [¶] … [¶] But she made him money.” At the hotel, Henderson forced M.H.
to orally copulate him (in closing, the prosecutor argued that he did this, not for his own
sexual gratification, but to ascertain whether M.H. had what it took to do the acts she
would have to do if he succeeded in inducing her to become a prostitute). He then took
her to a hotel room where Johnson and Burgess showed her internet sites on which they
advertised prostitution services. Johnson told M.H. how they used prostitution to make
money. Henderson tried to persuade M.H. to go with all of them to Sacramento, telling
her he would buy her a “bunch of new clothes,” “it [would] be fun,” and she could “have
everything” she wanted, if she went with them. He told her “[she] should go with them
and [she] can make money with his girls.” Henderson had also told Burgess and Johnson
that M.H. was going to work with them as a prostitute.
       When M.H. came up with a ruse to go to school the next morning, Henderson told
her, “[w]e are going to pick you up after school. So be right there. We are going to go to
the Valley Plaza and get you a bunch of new clothes.” He then showed up at M.H.’s
school at the end of the school day and brazenly told the staff that he was her cousin and
had to pick her up because they were leaving for Sacramento. After the school rebuffed
him, Henderson pursued M.H. to the mall where she had gone with her friends later in the
day. She had to hide in a mall bathroom until he gave up looking for her and left.
       Here, the record discloses substantial evidence such that a reasonable juror could
find Henderson guilty beyond a reasonable doubt of counts one, two, and three.
V.     The sentences for counts 1 and 3 must be stayed pursuant to section 654
       At sentencing, the trial court concluded that section 654 did not apply and imposed
consecutive sentences for each conviction. The court ruled as follows:

                                             31.
               “After considering the arguments of counsel and, more importantly,
       reviewing the notes this court took during the presentation of evidence, this
       court will find that Counts 1, 2, and 3 were committed at different times or
       at separate places rather than their being commit[ed] so close in time and
       place as to indicate a single period of abhorrent behavior. And based on
       those observations, this court is confident that consecutive sentencing is
       justified.”
Henderson now argues his “consecutive sentence[s] on all three counts [are] inconsistent”
with section 654. The People concede the point. We agree with the parties.
       We review the trial court’s application of section 654 under the deferential
“substantial evidence” standard. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
Section 654, subdivision (a), provides, in relevant part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” The statute has
been interpreted to bar multiple punishments not only for a single criminal act, but also
for a single indivisible course of conduct in which the defendant had only one criminal
intent or objective. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64
Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19.) When
reasonable minds can differ as to whether a course of conduct comprises a divisible or
indivisible transaction, we apply the “intent and objective” test set forth in Neal:
“Whether a course of criminal conduct is divisible and therefore gives rise to more than
one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.” (Neal, supra, at p. 19.)
       Here, all the offenses were incident to one objective, i.e., to procure M.H. to be a
prostitute. Moreover, the trial court’s conclusion that the offenses were committed at
different times and in different places is not supported by substantial evidence. All three
offenses essentially are based on the same set of operative facts, and all the relevant


                                             32.
events occurred on January 31 and February 1, 2013. Accordingly, Henderson may only
be punished for the offense that provides the longest potential sentence, i.e., his human
trafficking offense pursuant to section 236.1, subdivision (c). His sentences on counts 1
and 3 are therefore stayed.
                                     DISPOSITION
       The case is remanded for resentencing consistent with this opinion. The trial court
is directed to vacate the consecutive sentences as to counts 1 and 3, impose sentence as to
those counts, and stay each in accordance with section 654. The judgment is otherwise
affirmed.
                                                                 _____________________
                                                                               Smith, J.
WE CONCUR:


 _____________________
 Franson, Acting P.J.


 _____________________
 Peña, J.




                                            33.
