Filed 12/18/13 P. v. Macauley CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B243963

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA121607)
         v.

MOHAMED NEWLOVE MACAULEY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor
J. Hunter, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and Shawn
McGahey Webb, Deputy Attorneys General, for Plaintiff and Respondent.


                                            _____________________
                                   INTRODUCTION


       Mohamed Newlove Macauley found two 13-year-old girls, who had run away
from home, in Long Beach, convinced them to get into his car, and set them up to work
as prostitutes in Los Angeles. The jury convicted him on two counts of pimping a minor
under the age of 16 years (Pen. Code, § 266h, subd. (b)(2))1 and two counts of pandering
a minor under the age of 16 years (§ 266i, subd. (b)(2)). The trial court sentenced
Macauley to an aggregate state prison term of 14 years by selecting count 1 (pimping one
of the girls) as the base term and imposing the upper term of eight years, and then
imposing consecutive two-year terms (one-third the middle term of six years) on count 2
(pimping the other girl) and on counts 3 and 4 (the pandering counts). On appeal,
Macauley argues that one of his pimping convictions is not supported by sufficient
evidence and that the trial court sentenced him in violation of section 654. We affirm in
part, reverse in part, and remand for resentencing.


                              FACTUAL BACKGROUND


       On the night of January 11, 2012 Macauley stopped at a street corner in Long
Beach and demanded that S.T. and A.H., 13-year-old runaways, get into his car or there
would be problems. The girls complied. Taquana Batty, whom Macauley identified as a
prostitute, was seated next to Macauley. Macauley told S.T. and A.H. he was going to
drive them to Los Angeles where they would have to work as street prostitutes. When
they reached Los Angeles, Macauley parked on a dead end street and gave the girls
condoms. He told them to flag down cars and explained how much to charge for various
sex acts and how to determine whether a potential customer was an undercover police
officer.



1      All further statutory references are to the Penal Code.


                                             2
       S.T. and A.H. stood together on a corner of 60th and Figueroa Streets and began
flagging down cars, while Batty watched them from across the street and Macauley
remained in his car parked nearby. A.H. testified that when a car pulled up to the corner,
either she or S.T. would speak with the male driver and agree on a price for a particular
sex act. A.H. would then enter the front passenger seat and determine whether the
potential customer was a police officer before having him drive a short distance to a
secluded location to engage in either oral copulation or sexual intercourse. After the
driver paid A.H., she would have him take her back to the corner, where she rejoined S.T.
When A.H. returned, Macauley would call her on her cell phone and tell her to bring him
the money. A.H. would then walk to Macauley’s car and give him the money. That
night, A.H. performed sex acts with four men. According to A.H., S.T. got into two
different cars that night, each time leaving from and returning to the corner of 60th and
Figueroa Streets. A.H. testified, “But other than that, I didn’t actually see [S.T.] do
anything.”
       There was also evidence that from late night on January 11 to early morning on
January 12, 2012, Macauley made cell phone calls to A.H. and Batty. Macauley also sent
a text message to Batty, asking “They good?” and Batty responded, “Okay.” Macauley
did not call or text S.T.
       Los Angeles Police Officer Gregory Sovick was on routine patrol at
approximately 5:00 a.m. on January 12, 2012, when he noticed S.T. standing alone on the
corner of 60th and Figueroa Streets. S.T. was wearing a low-cut off-the-shoulder blouse
and a very short skirt. For about 45 minutes, Sovick watched S.T. flag down several
drivers and speak with them briefly, before they drove away. S.T. also spoke with an
unidentified female. Sovick did not see S.T. get into any of the cars. Nor did Sovick see
Macauley in the area that morning. Sovick detained S.T. on suspicion of engaging in
street prostitution, conducted a warrant check, and learned she was a reported runaway.
He transported S.T. to the police station, cited her for loitering with the intent to commit
prostitution, and released her to her parents.



                                                 3
       Los Angeles Police Detective Dan Morgan testified that S.T. told him in an
interview two days later that Macauley was supposed to drive them home on the night of
January 11, 2012, but instead he took them to 60th and Figueroa Streets and told them to
“make some money.” At some point during the interview, S.T. told Morgan she “had
only worked at one location.” At trial, S.T. denied that Macauley told her to make some
money. S.T. testified that she was not doing anything on the corner except standing with
A.H., who, on two occasions, was picked up, driven away, and subsequently returned by
“some dude.” The police arrested S.T. during one of A.H.’s absences. S.T. denied
flagging down any cars or telling the police that any of the drivers offered to pay her to
perform sex acts. S.T. testified some drivers stopped at the corner and asked if S.T.
wanted to have “some fun,” but she shook her head, “No,” and waived them away. When
asked on direct examination why she was standing on the corner, S.T. refused to answer.
       Meanwhile, on the morning of January 12, Macauley drove Batty, A.H. and
another girl to a swap meet and bought A.H. tights, earrings, and heels. Macauley then
took A.H. to his house and had Batty take pictures of A.H. in her bra wearing the clothing
from the swap meet. Macauley told A.H. that he wanted to put the pictures “on the
internet and other people could look at [them] and he could get money off of those
pictures.”
       At some point S.T. sent text messages to A.H. stating that she wanted to retrieve
her iPod, which S.T. had left in Macauley’s car the previous evening. The girls arranged
to meet at a restaurant and exchange the iPod for clothes for A.H. as a part of a set-up
with police. Macauley drove A.H. to the restaurant, and the police arrested Macauley and
a companion in the parking lot.




                                             4
                                       DISCUSSION


       A.     There Is No Substantial Evidence To Support Macauley’s Conviction
              for Pimping S.T.
       In evaluating whether there is sufficient evidence to support a conviction, “we
review the whole record to determine whether any rational trier of fact could have found
the essential elements of the crime or special circumstances beyond a reasonable doubt.
[Citation.] The record must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the prosecution and
presume in support of the judgment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts and even testimony [that] is
subject to justifiable suspicion do not justify the reversal of a judgment, for it is the
exclusive province of the trial judge or jury to determine the credibility of a witness and
the truth or falsity of the facts upon which a determination depends. [Citation.] We
resolve neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]’ [Citation.] A reversal for insufficient evidence ‘is unwarranted
unless it appears “that upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327,
357; accord, People v. Mecano (2013) 214 Cal.App.4th 1061, 1068.)
       Section 266h, subdivision (b)(2), provides that “[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, when the person is a minor, is guilty of
pimping a minor, a felony . . . . [¶] . . . [¶] (2) If the person engaged in prostitution is
under 16 years of age, the offense is punishable by imprisonment in the state prison for

                                               5
three, six, or eight years.” Thus, a defendant can commit the offense of pimping a minor
in one of two ways: (1) by knowingly deriving support from the earnings of a minor’s act
of prostitution, or (2) by soliciting compensation. (Wooten v. Superior Court (2001) 93
Cal.App.4th 422, 446; People v. McNulty (1988) 202 Cal.App.3d 624, 630.) The statute
defines pimping as a general intent crime (People v. Grant (2013) 195 Cal.App.4th 107,
116, fn. 3; McNulty, supra, at p. 630) and does not require that the accused receive the
earnings directly from the prostitute, as opposed to knowingly deriving support from the
prostitute’s earnings collected by a third party. (People v. Coronado (1949) 90
Cal.App.2d 762, 766.)
       In this case, the People did not proceed on the theory Macauley solicited or
received compensation for soliciting S.T. The jury was instructed on the alternative
theory that the People had to prove Macauley knowingly derived some support from
S.T.’s earnings as a prostitute. The evidence is insufficient to support this theory.
       Contrary to Macauley’s contention, the evidence in the record does support an
inference that S.T. engaged in sex acts for money. A.H. testified that she observed S.T.
get into a car, leave, and return “at least two times before she got arrested.” S.T. admitted
to police that she had “worked at one location” prior to her arrest, and Batty sent a text
message to Macauley that the girls were “okay.” After her parents picked up S.T. from
the police station, they took her to the doctor. This evidence supports a reasonable
inference that S.T. engaged in acts of prostitution.
       The evidence in the record, however, does not support an inference that Macauley
directly or indirectly ever received, and thereby derived support from, S.T.’s prostitution
earnings. A.H. never testified that she received any money from S.T. or that S.T. gave
any money to either Batty or Macauley. There is no evidence from which a jury could
reasonably infer that S.T. gave Macauley any proceeds she may have earned that night.
(See People v. Moore (2011) 51 Cal.4th 386, 406 [“[t]hat an event could have happened,
however, does not by itself support a deduction or inference it did happen”]; People v.
Kunkin (1973) 9 Cal.3d 245, 250 [“‘[e]vidence which merely raises a strong suspicion of
the defendant’s guilt is not sufficient to support a conviction’”].)

                                              6
       The People (and initially Macauley) requested that if we find the evidence
insufficient to support a conviction of Macauley for pimping S.T., we modify the
judgment pursuant to sections 1181, subdivision 6, and 1260 by reducing the conviction
for pimping S.T. (count 1) to attempting to pimp S.T.2 In People v. Bailey (2012) 54
Cal.4th 740 the Supreme Court recognized that under sections 1181, subdivision 6, and
1260 “an appellate court that finds that insufficient evidence supports the conviction for a
greater offense may, in lieu of granting a new trial, modify the judgment of conviction to
reflect a conviction for a lesser included offense.” (Bailey, supra, at p. 748.) The
Supreme Court held, however, that an appellate court cannot modify a judgment of
conviction “where the attempted offense includes a particularized intent that goes beyond
what is required by the completed offense.” (Id. at p. 753.) Therefore, the Supreme
Court held that the Court of Appeal could not modify a conviction for escape from prison
(for which there was insufficient evidence) to attempted escape because escape is a
general intent crime and attempted escape is a specific intent crime and “not necessarily
included in the offense of escape.” (Id. at p. 752.)
       Here, pimping is a general intent crime. (See People v. Grant, supra, 195
Cal.App.4th at p. 116, fn. 3; People v. McNulty, supra, 202 Cal.App.3d at p. 630.)
Attempted pimping is a specific intent crime. (See § 21a; People v. Kipp (1998) 18
Cal.4th 349, 376 [“[a]n attempt to commit a crime requires a specific intent to commit the
crime and a direct but ineffectual act done toward its commission”]; accord, People v.



2        Section 1181, subdivision 6, provides the court may grant a new trial “[w]hen the
verdict or finding is contrary to law or evidence, but if the evidence shows the defendant
to be not guilty of the degree of the crime of which he was convicted, but guilty of a
lesser degree thereof, or of a lesser crime included therein, the court may modify the
verdict, finding or judgment accordingly without granting or ordering a new trial, and this
power shall extend to any court to which the cause may be appealed.” Section 1260
provides that “[t]he court may reverse, affirm, or modify a judgment or order appealed
from, or reduce the degree of the offense or attempted offense or the punishment imposed
. . . and may, if proper, order a new trial and may, if proper, remand the cause to the trial
court for such further proceedings as may be just under the circumstances.”


                                              7
Santana (2013) 56 Cal.4th 999, 1012.) Therefore, attempted pimping is not a lesser
included offense of pimping, and under Bailey we cannot modify the judgment to reduce
the conviction on count 1 to attempted pimping.
          In response to our request, the parties submitted supplemental briefing on the
effect of Bailey on this court’s authority, if there is insufficient evidence to support a
conviction for pimping, to modify the judgment by reducing the conviction on count 1
from pimping to attempted pimping. The People argue that even if Macauley did not
pimp S.T., his intent to do so “could hardly be more clear” from the evidence. The
People argue that “although the jury was not instructed regarding specific intent or
attempted pimping, nothing in the instructions precluded the jury from concluding that
[Macauley] specifically intended to pimp [S.T.].”
          Had the trial court improperly instructed the jury on attempted pimping by not
including an instruction on specific intent, and the jury had convicted Macauley of
attempted pimping, we could find the instructional error harmless. (See, e.g., People
v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154 [failure to instruct, in the penalty
phase of a capital case, that interference with an executive officer’s duties under
section 69 requires a specific intent to interfere was harmless where “[t]here was
evidence that defendant harbored the requisite specific intent”]; People v. Jones
(1998) 67 Cal.App.4th 724, 727-728 [failure to instruct that intimidation of a victim in
violation of section 136.1 is a specific intent crime was harmless where “the intent to
dissuade [was] clear”].) In this situation, where the trial court did not instruct the jury
on attempted pimping and the jury made no finding on attempted pimping, our
authority to modify the judgment is statutorily authorized and limited by
sections 1181, subdivision 6, and 1260. Under the holding of Bailey, these statutes do
not allow us to modify the judgment on appeal to reflect a conviction of attempted
pimping rather than pimping because the former is not a lesser included crime of the
latter.



                                               8
       It is true that in responding to the Attorney General’s argument in Bailey that
“the absence of an instruction and of a specific intent finding on attempt to escape
does not bar modification because the evidence was overwhelming,” the Supreme
Court stated that the evidence of intent in the case “was conflicting” and that the
record contained “evidence that could lead a rational jury to find the element of
specific intent lacking and such a finding would be consistent with the jury’s verdict.”
(People v. Bailey, supra, 54 Cal.4th at p. 754.) We do not believe that these statements in
the Bailey opinion authorize us to depart from the holding of the case that an appellate
court cannot modify a conviction under sections 1181, subdivision 6, and 1260 to an
attempt that is not a lesser included offense of the conviction. The Supreme Court in
Bailey held that an appellate court cannot reduce a conviction from escape to attempt to
escape because “attempt to escape is not a lesser included offense of escape.” (Bailey, at
p. 744). The Supreme Court did not hold that an appellate court cannot reduce a
conviction from escape to attempt to escape because “attempt to escape is not a lesser
included offense of escape,” (ibid.) unless the evidence supports a conviction for attempt
to escape. Nor did the Supreme Court in Bailey state that an appellate court cannot
modify “an escape conviction to attempt to escape” (id. at p. 747), unless the evidence of
specific intent was overwhelming. Therefore, we reverse rather than modify the
conviction on count 1.


       B.     Macauley’s Sentence Does Not Violate Section 654
       Section 654 prohibits separate punishment for multiple offenses arising from the
same act or from a series of acts constituting an indivisible course of criminal conduct.
(People v. Williams (2013) 57 Cal.4th 776, 781; People v. Rodriguez (2009) 47 Cal.4th
501, 507.)3 “‘Whether a course of criminal conduct is divisible and therefore gives rise



3      Section 654, subdivision (a), provides: “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

                                             9
to more than one act within the meaning of section 654 depends on the intent and
objective of the actor. If all the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one.’” (Rodriguez, at
p. 507, italics omitted; accord, People v. Lewis (2008) 43 Cal.4th 415, 519.) “The trial
court has broad latitude in determining whether section 654, subdivision (a) applies in a
given case.” (People v. Garcia (2008) 167 Cal.App.4th 1550, 1564.) “A trial court’s
express or implied determination that two crimes were separate, involving separate
objectives, must be upheld on appeal if supported by substantial evidence.” (People v.
Brents (2012) 53 Cal.4th 599, 618.)
       Macauley argues that his sentence violates section 654 because there is no basis in
the evidence from which the court could have determined the pimping and pandering
offenses as to each girl were divisible, and therefore subject to separate punishment.
Because we have reversed the conviction on count 1, the section 654 issue with respect to
count 1 (pimping S.T.) and count 3 (pandering S.T.) is moot. We conclude that section
654 does not apply to count 2 (pimping A.H.) and count 4 (pandering A.H.).
       Criminalization of both pimping and pandering seeks to prevent prostitution.
(People v. Patton (1976) 63 Cal.App.3d 211, 217; People v. Hashimoto (1976) 54
Cal.App.3d 862, 867.) Pimping is prohibited “to discourage any . . . person from . . .
receiving material gain from the practice of prostitution.” (People v. Smith (1955) 44
Cal.2d 77, 80.) Pandering is a specific intent crime; its commission requires the knowing
and purposeful conduct of encouraging or otherwise influencing another person to
become a prostitute. Whether the panderer is successful in his or her efforts is not an
element of the crime.4 (People v. Zambia (2011) 51 Cal.4th 965, 972, fn. 5, 980.) The


omission be punished under more than one provision. An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any other.”
4      Section 266i, subdivision (a), provides, in relevant part, that “any person who does
any of the following is guilty of pandering . . . : [¶] (1) Procures another person for the
purpose of prostitution. [¶] (2) By promises, threats, violence, or by any device or
scheme, causes, induces, persuades, or encourages another person to become a

                                             10
crime of pandering is distinct from the crime of pimping, and “[i]t is possible to commit
one offense without committing the other.” (Id. at p. 981, fn 7.)
       Here, Macauley’s effort to conflate the pimping and pandering offenses with
respect to A.H. lacks merit. It is true that Macauley’s successful efforts to recruit A.H. as
a prostitute extended over many hours and many miles. There is substantial evidence,
however, to support the jury’s implied findings Macauley’s conduct on January 11 and
12, 2012 was divisible, involving separate acts as to each girl, committed with separate
objectives: Macauley committed the offense of pandering A.H. on January 11 in Long
Beach, where he coerced her to get into his car and announced that she and S.T. were
going to work as street prostitutes in Los Angeles.5 Upon arriving in Los Angeles,
Macauley pimped A.H. by demanding and receiving her illicit earnings. The pandering
offenses were thus separated from the pimping offense by time, location, conduct, and
motive.
       Finally, Macauley argues that he is entitled to a single punishment under section
654 for his pimping and pandering convictions because his actions constituted a
continuing course of conduct with the sole objective of achieving financial gain. The
Supreme Court has rejected such an argument as “akin to an assertion of a desire for
wealth as the sole intent and objective in committing a series of separate thefts,” which
would “preclude punishment for otherwise clearly separate offenses” and “would violate
[section 654’s] purpose to insure that a defendant’s punishment will be commensurate
with his culpability.” (People v. Perez (1979) 23 Cal.3d 545, 552; see, e.g., In re Noelle
M. (2008) 169 Cal.App.4th 193, 195, 197 [minor’s argument that five sales of methadone


prostitute.” Section 266i, subdivision (b), provides: “Any person who does any of the
acts described in subdivision (a) with another person who is a minor is guilty of
pandering . . . : [¶] . . . [¶] (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.”
5      Macauley also engaged in acts of pandering on January 12 in Los Angeles by
taking A.H. to the swap meet for clothes and jewelry, and by photographing A.H. at his
home.


                                              11
pills to other minors during a football game constituted “‘an indivisible course of
conduct’” was “too broad for purposes of section 654 because her culpability increased
with each illegal act of selling the methadone pills”]; People v. Neder (1971) 16
Cal.App.3d 846, 853-854 [although defendant’s multiple uses of a stolen Sears credit
card “were incident to the fundamental objective of taking goods from Sears by use of the
credit card and by forging the sales slips . . . this objective is too broad to tie the separate
acts into one transaction” for purposes of section 654].) The intent and objective of
achieving financial gain is “much too broad and amorphous to determine the applicability
of section 654.” (Perez, supra, at p. 552.) The trial court did not sentence Macauley in
violation of section 654.


                                       DISPOSITION


       The conviction on count 1 is reversed. The convictions on counts 2, 3, and 4 are
affirmed, and the matter is remanded for resentencing on those counts.



                                                    SEGAL, J.*


We concur:



              WOODS, Acting P. J.



              ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                               12
