Filed 1/23/14 P. v. Smith CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063100

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD239290)

KEVIN LAMAR SMITH,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.

         George L. Schraer for Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting, Andrew

Mestman and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
                                              I.

                                     INTRODUCTION

       Defendant Kevin Lamar Smith appeals from a judgment of conviction after a jury

convicted him of one count of pandering and one count of pimping. Smith asserts that in

order for his pandering conviction to be upheld, there must be evidence that he

encouraged the prostitute with whom he was involved to change her business relationship

by ceasing to work as a prostitute for another person and working for him as a prostitute,

instead. Smith claims that there is insufficient evidence to support his conviction for

pandering because, he contends, the evidence demonstrates that the prostitute in question

decided to leave her pimp and form a relationship with him of her own volition and

without his inducement or encouragement. Smith also challenges his conviction for

pimping, arguing that the trial court prejudicially erred in not instructing the jury with a

pinpoint instruction he requested that would have told the jury, in effect, that if it found

that the prostitute gave Smith her money for the purpose of holding it for her and not for

his support, then the jury would have to find him not guilty of pimping.

       We conclude that both of Smith's arguments are meritless. Smith's contention that

the evidence is insufficient to support his conviction for pandering is based on a

misinterpretation of recent Supreme Court authority concerning the pandering statute.

With respect to the trial court's rejection of Smith's proposed pinpoint jury instruction, the

trial court appropriately rejected Smith's requested pinpoint instruction because the

proffered instruction was ambiguous and provided an incorrect description of the law

pertaining to the offense of pimping. We therefore affirm the judgment.

                                              2
                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     Factual background

       In late January 2012, officers from the Vice Unit of the San Diego Police

Department were conducting an undercover "in-call" operation to investigate prostitution

in the Hotel Circle area of San Diego. Detective William Kellner, who was participating

in the operation, found an online advertisement for an escort who identified herself as

"Chilli." Kellner called the number in the advertisement. The woman who answered his

call quoted him a price of $140 for an hour and asked him to meet her outside a hotel.

Kellner went to the hotel and met "Chilli." Once they were inside a hotel room, "Chilli"

agreed to have anal sex with Kellner for $200. "Chilli" took off all of her clothes and

asked Kellner to lock the door to the room. At that point, Kellner notified his team to

come in. Kellner's team knocked on the door and indicated that they were from the San

Diego Police Department.

       Detective Luke Johnson entered the hotel room and spoke with "Chilli," who was

subsequently identified as Amber H. Amber indicated to Johnson that she was scared

and told him about her pimps, including Smith. Johnson looked through the call logs of

two of Amber's cell phones and saw several text messages from Smith.

       Amber agreed to engage in a pretext telephone call with Smith. During the call,

Amber told Smith that she had made "400 boodles." Smith said, "That's great. You had

a great night. You had a great night." He then told Amber that he was going to come to

the hotel room.

                                             3
        Amber told Detective Johnson what Smith looked like and described his car. She

also indicated that Smith's normal course of action was to come and pick up money from

her when she was finished with a client. She said that Smith would pull into the hotel

parking area, drive around the hotel, and park in the last parking spot next to the elevator.

        Amber explained to Detective Johnson that Smith had been nice to her when they

first met, but that he became violent two or three days after that. Amber described an

incident in which Smith choked her because she had not wanted to work but Smith

wanted her to put an advertisement on the internet. According to Amber, Smith said that

he would beat her if she did not place an online advertisement. In addition, Smith got

angry when Amber did not do what he wanted her to do and "when the money d[id]n't

match the time." Later, at the police station, Amber told Johnson that Smith was her

pimp.

        While Johnson was talking with Amber, Detective Vincent Bales set up

surveillance at the hotel and waited for Smith to arrive. Officers detained Smith and a

female passenger who was with him when he arrived at the hotel. When Detective

Johnson called a phone number that was listed as Smith's in Amber's cell phone, a cell

phone that police had found in Smith's car rang and identified the caller as "Chilli." The

cell phone found in Smith's car contained several photographs of Amber that had been

used in her online advertisements for prostitution.

        At trial, Amber testified about the events that preceded her arrest. According to

Amber, in October 2011, she had been living in an apartment with Louis Leonard, who

was her pimp at the time. She was using the internet to advertise herself as a prostitute

                                              4
and was also working on El Cajon Boulevard. Amber's relationship with Leonard began

to disintegrate because of "domestic violence issues." Amber had tried to leave Leonard

in the past, but he would find her and punish her by having his caregiver, Charles Walser,

beat her.1

       Amber first met Smith when Smith came to Leonard and Amber's apartment to

play chess with Walser. In November 2011, Smith's visits to Leonard's and Amber's

home increased in frequency. Leonard instructed Amber not to talk with Smith, and

advised her to "stay in pocket."2 At some point, Amber asked Walser for Smith's

telephone number, which Walser provided.

       In early December 2011, Amber decided to leave Leonard. She packed a few

things and used money she had earned one day working as a prostitute to rent a room at a

motel. Amber called Smith from the motel and told him that she wanted to see him.

Smith came to the motel, and Amber performed oral sex on him. From that point on,

Amber wanted to be around Smith as much as possible. She believed that Smith would

be able to protect her if Leonard and Walser tried to come after her.

       After Amber and Smith met at the motel, Amber continued to work as a prostitute.

A few days later, Smith asked her when she was going to start making money. Amber

said that she continued to work as a prostitute at that time because she was "attached to

the game," and because prostitution was the easiest way for her to earn money. Amber

1      Leonard had muscular dystrophy and was disabled.

2      According to testimony at trial, to be "in pocket" for a prostitute means to remain
under the control of a particular pimp and following that pimp's rules.
                                             5
gave Smith the money she earned from prostitution. According to Amber, she and Smith

used the money for car payments, gas, and rent. Amber also said that some of the money

was to be saved so that she and Smith could get an apartment. Amber admitted that there

were times when Smith would beat her for "[m]oney, attitude, backtalk" and when "the

money doesn't match the time."

       At some point after Amber began working with Smith as her pimp, Leonard and

Walser found Amber and took her back to Leonard's apartment. Amber was pregnant.

Walser beat Amber, kicking her and punching her in the stomach. Amber eventually

managed to run away from the apartment and called Smith to pick her up. Amber began

having complications with her pregnancy. Smith took Amber to the hospital, where she

suffered a miscarriage.

       Amber was discharged from the hospital in mid-January 2012. Smith picked her

up from the hospital. The doctor had told Amber that she should not have sex for two

weeks. She followed these instructions for a day or two, but then went back to work.

Smith had told her that if she did not make money, she would not have a place to stay.

Although Smith told Amber that she had to work, he also said that "ultimately it would

still be left up to her." Amber and Smith were arrested later that month.

B.     Procedural background

       The relevant charging document is a third amended information that charges

Smith with one count of pandering by encouraging (Pen. Code, § 266i, subd. (a)(2); count




                                             6
1)3 and one count of pimping (§ 266h, subd. (a); count 2). The charging document also

alleges that Smith had served two prior prison terms within the meaning of section 667.5,

subdivision (b), and that he had suffered two prior strike convictions within the meaning

of section 667, subdivisions (b) through (i) and sections 1170.12.4

       A jury found Smith guilty on both counts. In a bifurcated proceeding, the trial

court found true the allegations regarding Smith's prior strikes, and also found true one of

the allegations that he had served a prior prison term.

       The trial court sentenced Smith to a term of four years, doubled pursuant to the

three strikes law, on count 1, plus an additional year for the prior prison term findings.

The trial court imposed and stayed the middle term of four years on count 2.

       Smith filed a timely notice of appeal.

                                             III.

                                       DISCUSSION

A.     There is substantial evidence in the record to support Smith's conviction for
       pandering

       Smith contends that the evidence is insufficient to support his conviction for

pandering by encouraging because, he claims, he did not cause, induce, persuade, or

encourage Amber to become a prostitute. Rather, according to Smith, it was Amber who

first contacted him and initiated a relationship.

3      Further statutory references are to the Penal Code unless otherwise indicated.

4      The third amended information also charged Leonard and Walser with a number
of additional counts. Smith's trial was severed from the trial of his codefendants.
Leonard and Walser are not parties to this appeal.
                                                7
       " 'When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence—that is, evidence that is reasonable,

credible, and of solid value—from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.' [Citation] '[T]he relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.' [Citations.] '[I]t is the jury, not the appellate court which must be

convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.]" (People v.

Lewis (2009) 46 Cal.4th 1255, 1289-1290, fn. omitted.)

       "In deciding the sufficiency of the evidence, a reviewing court resolves neither

credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and

inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.]

Moreover, unless the testimony is physically impossible or inherently improbable, the

testimony of a single witness is sufficient to support a conviction." (People v. Young

(2005) 34 Cal.4th 1149, 1181.)

       Smith was charged in count 1 with violating section 266i, subdivision (a)(2).

Pursuant to this statutory provision, a person is guilty of pandering if he or she "[b]y

promises, threats, violence, or by any device or scheme, causes, induces, persuades, or

encourages another person to become a prostitute." (Ibid.) The trial court instructed the

jury regarding the offense of pandering, based on CALCRIM No. 1151, as follows:



                                              8
          "The defendant is charged in Count 1 with pandering Amber in
          violation of Penal Code section 266i.

          "To prove that the defendant is guilty of pandering, the People must
          prove that:

          "1. The defendant used promises, threats, violence, or any device or
          scheme to cause, persuade, encourage, or induce Amber to become a
          prostitute;

          "AND

          "2. The defendant intended to influence Amber to be a prostitute.

          "It does not matter whether Amber was a prostitute already.

          "A prostitute is a person who engages in sexual intercourse or any
          lewd act with another person in exchange for money or other
          compensation. A lewd act means physical contact of the genitals,
          buttocks, or female breast of either the prostitute or customer with
          some part of the other person's body for the purpose of sexual
          arousal or gratification."

       The Supreme Court recently concluded that encouraging a person to "become a

prostitute" does not require that the potential target not have previously worked as a

prostitute, nor does it require that the defendant have encouraged a "virtuous" woman to

change her profession to prostitution. Rather, the statute refers to encouraging the

potential victim to " 'become a prostitute' in the future for the benefit of the encourager or

some other pimp"—i.e., to engage in future acts of prostitution. (People v. Zambia

(2011) 51 Cal.4th 965, 975 (Zambia).)

       In Zambia, the court considered the meaning of the phrase, "to become a

prostitute" in section 266i, subdivision (a)(2). The defendant in Zambia had approached

an undercover officer who was posing as a prostitute. Believing that the undercover


                                              9
officer was already a prostitute, the defendant told her that he was a pimp and promised

her that if she gave him her money and worked for him, he " 'would take care of [her].' "

(Zambia, supra, 51 Cal.4th at p. 970.) Appealing his conviction for pandering, the

defendant argued "that section 266i, subdivision (a)(2)'s phrase 'to become a prostitute'

does not include encouraging a person who is already a prostitute, or is posing as one."

(Zambia, supra, at p. 972.) In response, the People argued that " 'to become a prostitute'

[in subdivision (a)(2) of section 266i] means to 'engage in any future acts of prostitution,'

regardless of the victim's status at the time of a defendant's encouragement." (Zambia,

supra, at p. 972.)

       In affirming the defendant's conviction for pandering, the Supreme Court

explained that with a single exception, other courts had rejected the defendant's

argument. (Zambia, supra, 51 Cal.4th at p. 972.) As to the case that presented the

"single exception," People v. Wagner (2009) 170 Cal.App.4th 499 (Wagner), the Zambia

court dismissed the Wagner court's conclusion that section 266i, subdivision (a) excludes

"efforts to importune someone currently engaged in that profession to change

management." (Zambia, supra, at p. 976.) The Zambia court explained:

          "The language of the pandering statute describes current conduct on
          the part of the defendant: inducing and encouraging. That current
          conduct is aimed at producing subsequent conduct by the target: that
          the target thereafter engage in acts of prostitution following a
          defendant's inducement or encouragement. To encourage an
          established prostitute to change her business relationship necessarily
          implies that a defendant intends a victim 'to become a prostitute' in
          the future regardless of her current status." (Zambia, supra, at p.
          975.)



                                             10
       Smith contends that there is no evidence to demonstrate that he made any

promises or threats, or used any device or scheme, to get Amber to become his prostitute.

He asserts that "it was Amber who first contacted and initiated a relationship with [him],"

and maintains that the record shows something akin to "reverse pandering," whereby

Amber was the one who "induced or encouraged appellant to enter into a romantic

relationship with her, which also arguably led to a pimp/prostitute relationship." In

making this argument, Smith contends that his case does not fit into the pandering model

found in Zambia, supra, 51 Cal.4th at page 975. He states that "Amber was already a

prostitute when she first met appellant," and that "[a]ppellant did not encourage Amber to

change her business relationship" to be his prostitute. Smith does admit, however, that

there is evidence that at some point in time, he "encouraged, caused, persuaded and

induced Amber to engage in acts of prostitution." In Smith's view, this is insufficient to

support a conviction for pandering. Apparently relying on the Zambia court's

determination that "encourag[ing] an established prostitute to change her business

relationship" would be sufficient to constitute pandering, Smith contends that pandering

"applies to the establishment of the relationship, not to its perpetuation." We disagree.

       In Zambia, supra, 51 Cal.4th at page 981, the court concluded that, "the proscribed

activity of encouraging someone 'to become a prostitute,' as set forth in section 266i,

subdivision (a)(2), includes encouragement of someone who is already an active

prostitute, or undercover police officer." Contrary to Smith's position on appeal, the

Zambia court did not include any requirement that the defendant have encouraged

another person to change his or her business relationship in order to be considered to

                                            11
have encouraged that person to engage in further acts of prostitution. Although the

Zambia court ultimately determined that evidence that someone has encouraged an

established prostitute to change her business relationship is sufficient to establish that the

person is guilty of pandering, the Zambia court did not hold that the encouragement of a

change in a business relationship is necessary to establish guilt with respect to the offense

of pandering when the defendant's target has already been engaged in acts of prostitution

or is an established prostitute. The Zambia opinion makes it clear that the conduct

targeted by the pandering statute is "inducing and encouraging" someone to "engage in

acts of prostitution." (Zambia, supra, at p. 975.) Thus, pursuant to the authority of

Zambia, anyone who induces or encourages an established prostitute to engage in acts of

prostitution in the future may be found guilty of pandering.5

       There is substantial evidence to support a finding that Smith, by promises, threats,

violence, or by any device or scheme, caused, induced, persuaded, or encouraged Amber

to engage in acts of prostitution. Specifically, Amber testified that on the day that she

and Smith were arrested, she had not wanted to work as a prostitute, but Smith choked


5       The Zambia court's approval of People v. DeLoach (1989) 207 Cal.App.3d 323
(DeLoach) supports this position. In DeLoach, the defendant was convicted of two counts
of pandering, based on her conduct "causing, inducing, persuading or encouraging her
daughter into committing two separate acts of prostitution, by means of separate threats
on two separate occasions." (Id. at pp. 333-334.) The DeLoach court affirmed both
convictions, concluding that "[t]he evidence, which shows that appellant twice forced her
daughter to perform acts of prostitution against her will, fully supports the jury's
conviction of appellant on these charges." (Id. at p. 334.)
        The Zambia court agreed with the DeLoach court's assessment of the pandering
statute, stating that "[t]he Court of Appeal correctly rejected DeLoach's argument that,
because she had coerced S. to act as a prostitute the first time, she was insulated from
punishment for pandering the second time." (Zambia, supra, 51 Cal.4th at p. 975.)
                                              12
her and told her that he wanted her to post an advertisement on the internet.6 Amber also

testified that on another occasion, she began prostituting herself a day or two after being

released from the hospital after suffering a miscarriage because Smith had told her that

she would not have a place to stay if she did not continue working as a prostitute.7

Amber's testimony regarding each of these instances provides sufficient evidence of

Smith's pandering. We therefore affirm Smith's conviction on count 1.

B.     The trial court properly refused to give the pinpoint instruction that Smith
       requested

       Smith contends that his conviction for pimping in count 2 should be reversed

because the trial court erred in refusing to instruct the jury with his proposed pinpoint

instruction pertaining to how the money that Amber earned as a prostitute was used.

       1.      Additional background

       Smith was charged with pimping as set out in section 266h, subdivision (a). That

statute provides:

            "[A]ny person who, knowing another person is a prostitute, lives or
            derives support or maintenance in whole or in part from the earnings
            or proceeds of the person's prostitution, or from money loaned or
            advanced to or charged against that person by any keeper or manager
            or inmate of a house or other place where prostitution is practiced or
            allowed, or who solicits or receives compensation for soliciting for
            the person, is guilty of pimping, a felony, and shall be punished by
            imprisonment in the state prison for three, four, or six years."



6      Amber also recounted this event to Detective Johnson when he interviewed her on
the day of her arrest.

7      According to Amber, Smith could stay with his mother, but Amber's only other
options, as she viewed them, were living on the street or going back to Leonard.
                                             13
      The trial court instructed the jury with respect to this offense with CALCRIM No.

1150, as follows:

          "The defendant is charged in Count 2 with pimping Amber, in
          violation of Penal Code section 266h.

          "To prove that a defendant is guilty of pimping, the People must
          prove that:

          "1. The defendant knew that Amber was a prostitute;

          "AND

          "2. The money that Amber earned as a prostitute supported
          defendant, in whole or in part;

          "A prostitute is a person who engages in sexual intercourse or any
          lewd act with another person in exchange for money or other
          compensation. A lewd act means physical contact of the genitals,
          buttocks, or female breast of either the prostitute or customer with
          some part of the other person's body for the purpose of sexual
          arousal or gratification."

      Smith's attorney requested that the trial court instruct the jury with a pinpoint

instruction regarding the second element of the above instruction:

          "If you find that Amber gave or loaned Mr. Smith money that she
          earned from prostitution, for the purpose of holding, saving or for
          any other purpose except for the purpose of being supported or
          maintained by Amber, then it will be your duty to find Mr. Smith
           . . . not guilty of count 2 Pimping (Pen. Code §266h).

          "If you find Mr. Smith accepted money from Amber for purposes
          other than for his support and maintenance, then it will be your duty
          to find Mr. Smith . . . not guilty of count 2 Pimping (Pen. Code
          §266h)."




                                            14
       The trial court reviewed the authorities that defense counsel cited and declined to

give the instruction to the jury. The trial court indicated that the court believed that other

instructions adequately covered the idea at issue in the proffered pinpoint instruction.

       2.     Analysis

       "[L]egally correct and factually warranted pinpoint instructions designed to

elaborate and clarify other instructions should be delivered upon request." (People v.

Hughes (2002) 27 Cal.4th 287, 362, italics omitted.) A trial court errs when it refuses to

give such an instruction. (Ibid.) However, it naturally follows that "a trial court may

properly refuse an instruction offered by the defendant if it incorrectly states the law, is

argumentative, duplicative, or potentially confusing [citation], or if it is not supported by

substantial evidence [citation]." (People v. Moon (2005) 37 Cal.4th 1, 30.)

       "[A] claim that a court failed to properly instruct on the applicable principles of

law is reviewed de novo." (People v. Martin (2000) 78 Cal.App.4th 1107, 1111; see also

People v. Posey (2004) 32 Cal.4th 193, 218 [instructional error is reviewed de novo].)

       The trial court did not err in refusing to give the pinpoint instruction that Smith

requested because that instruction is ambiguous, and one reasonable interpretation of the

instruction constitutes an inaccurate statement of the law. Specifically, pursuant to

Smith's proposed instruction, if the jury found that some of the money that Amber gave

Smith was for the purpose of him holding it or saving it for her, then the jury could find

Smith not guilty, even if it determined that other money that Amber gave Smith was for

his support and maintenance. Under section 266h, subdivision (a), a person is guilty of

pimping if that person knowingly "lives or derives support or maintenance in whole or in

                                              15
part from the earnings or proceeds of [another person's] prostitution." The statute does

not require that all of the money that a prostitute gives to her pimp be used solely for the

purpose of the pimp's support. The CALCRIM instruction that the trial court gave to the

jury in this case adequately and correctly identified these elements for the jury. The

proposed pinpoint instruction inaccurately implies that if some of the money that Amber

gave Smith was for the purpose of him holding it for her, Smith was not guilty of

pimping. However, pursuant to the statute, in order to find Smith guilty of pimping, the

jury had to determine only that some of the money that Amber earned as a prostitute was

used to support Smith. The trial court therefore properly rejected the defense's proffered

pinpoint instruction.

                                             IV.

                                      DISPOSITION

       The judgment is affirmed.




                                                                                 AARON, J.

WE CONCUR:



             BENKE, Acting P. J.



                  McDONALD, J.



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