Filed 8/14/15 P. v. Williams CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139356
v.
ANDERSON WILLIAMS,                                                   (Alameda County
                                                                     Super. Ct. No. 170886)
         Defendant and Appellant.


         Defendant and appellant Anderson Williams (defendant) appeals following his
convictions for pimping and pandering. We affirm.
                                      PROCEDURAL BACKGROUND
         In February 2013, the Alameda County District Attorney filed an information
charging defendant with human trafficking (Pen. Code, § 236.1, subd. (a);1 count one);
human trafficking for prostitution (§ 236.1, subd. (b); count two); pimping (§ 266h, subd.
(a); count three); and pandering (§ 266i, subd. (a)(1); count four).
         A jury found defendant not guilty on counts one and two and guilty on counts
three and four. The trial court sentenced defendant to the six-year upper term on count
three and stayed the sentence on count four under section 654.
         This appeal followed.




1
    All further statutory references are to the Penal Code unless otherwise indicated.

                                                             1
                                FACTUAL BACKGROUND
Testimony of Whitney Scott
       Whitney Scott (Scott) moved from Iowa to Oakland in February 2012, when she
was 19 years old. She moved to Oakland because a man she met online told her she
could live with him; when she arrived he announced she would have to work for him as a
prostitute or fend for herself. She worked for him for two weeks before switching to
another pimp. She subsequently worked for two other pimps before meeting defendant in
October 2012.
       On the night of October 8, 2012, Scott was working as a prostitute in Oakland and
had to walk home because her pimp failed to pick her up. Defendant approached her and
they talked and walked to defendant’s grandmother’s house, where he was staying. She
spent the night there. Scott opined it would have been obvious she was a prostitute
because of the way she was dressed.
       Scott’s pimp “fired” her after finding out she spent the night with defendant.
Scott’s pimp found out because she was seen at the house by defendant’s brother, who
was also a pimp, and by a prostitute who worked for the brother. Defendant offered to
take Scott in; he told her she needed “to work on the streets for a little bit, but not
permanently.” Scott gave defendant $100 that she made from prostituting for her
previous pimp. She returned to regular prostitution. Scott described her relationship with
defendant, testifying “I knew it was a pimp-and-prostitute relationship, but he made it
feel like it wasn’t, because we were doing things that pimps and hoes weren’t supposed to
be doing. ¶ . . . ¶ Like kissing and . . . saying I love you.”
       Defendant would tell Scott when to work “every day,” and he told her she had to
work when she did not feel like doing so. On busy nights Scott would make about $500;
if she made less than $100 in a night, defendant would make her work longer the next
night. While she was working, defendant called her every hour to check in on her and
find out how much money she was making. Other than her clients, Scott was not
permitted to speak to other men, other than defendant’s brothers. She gave defendant all



                                               2
the money she earned at the end of each evening. If she needed something, defendant
would take her shopping.
       Defendant also encouraged Scott to post ads on internet websites used by
prostitutes. About a month after Scott met defendant, he sent her to Albuquerque with
another prostitute, who worked for his brother. She made about $2,000, which she sent
to defendant. Around Thanksgiving 2012, defendant sent Scott to Albuquerque a second
time. She sent some of the money she made on that trip to defendant, but she also
purchased a laptop computer with his permission; she used the laptop to post internet
prostitution ads.
       After a week in Albuquerque, Scott flew to see her family in Iowa on an impulse,
without defendant’s permission. Defendant was mad. He encouraged Scott to return to
Oakland, telling her she would not have to work as a prostitute. She returned; defendant
was initially affectionate, but then he slapped her for traveling to Iowa without his
permission. She continued to work for defendant as a prostitute. On another occasion, he
slapped her after finding her in a room with a man from whom she had purchased
marijuana. He was upset because she had a man in her room who was not a customer.
On a third occasion, defendant hit her after she started to get into a car that she
mistakenly thought belonged to his brother.
       Eventually, Scott decided to leave defendant. One night, Scott was working and a
police officer came up to her; she thought he was going to arrest her for prostitution.
Scott told the officer she was trying to get away from her pimp and needed help. The
officer took Scott to her hotel room, where she picked up her possessions. He then took
her to a BART station, and she went to a women’s shelter.
       In January 2013, while Scott was in the shelter, defendant sent her threatening text
messages. In particular, defendant urged Scott to give him the laptop she purchased.
One message said, “All I want to do is get that laptop so I can post these hoes [sic]. I
have got to handle my business. I am about to handle business, not for you.” Another
text said, “Bitch, you have made that cause of where I sent you. Ho, that’s my money.
Get it straight. You wouldn’t have touched none of that without me. So you saying you


                                              3
are not giving me my shit?” Another message stated, “I am going to kill you. . . .
Remember we was pimping and hoeing [sic]. We was playing by that rules. You not
even giving me a chance to show you what a relationship with me is like outside the
game. . . . It wasn’t cool that I hit you.”
       While in the shelter, Scott continued to occasionally engage in prostitution. Scott
eventually called the Oakland Police Department and reported that defendant was a pimp.
The People’s Other Evidence
       Oakland Police Sergeant Holly Joshi testified she received a call on December 28,
2012 from Scott, who reported she had recently escaped from her pimp and was staying
at a homeless shelter. Scott sounded afraid and nervous. A few days later, Sergeant
Joshi interviewed Scott at the shelter and noticed she had redness, swelling, and slight
bruising to her right eye.
       On January 25, 2013, defendant was arrested at a motel in the presence of a
prostitute identified as D.J. At trial, D.J. (who was 17 years old), testified she did not
consider defendant to be her pimp, but he paid her expenses and she gave him the money
she was earning as a prostitute. Text messages between defendant and D.J. were
consistent with a pimp-prostitute relationship. D.J. was with defendant for about a week
before he was arrested. They did not have sexual contact. Defendant was nice, never
forceful or threatening. She told defendant she was 19 years old.
       The People presented evidence showing defendant sent a standard text message to
numerous prostitutes using an internet prostitution website; the message stated, “Maybe
when you ready for a change or something, better hit me. My name is Dezzle. Ima keep
you truly happy. Have you make more money than what you making now and Ima treat
you the way I supposed to when you wit me. When you ready for something better and
something new, I’m ready to give it to you, baby.” Sergeant Joshi found hundreds of
similar text messages sent out by defendant.
       Sergeant Joshi also provided expert testimony in the area of human trafficking,
pimping, and pandering. Among other things, she described the pimping and prostitution
subculture in Oakland, and the rules regulating the relationships between pimps and their


                                               4
prostitutes. She also explained that certain pimps—a type she described as a “Romeo
pimp”—rely on romance and seduction to acquire and retain prostitutes. The prosecutor
posed hypothetical questions to Sergeant Joshi based on the facts in the present case, and
the officer indicated the circumstances were consistent with a pimp-prostitute
relationship.
       On cross-examination, defense counsel asked Sergeant Joshi about the legal
definition of pimping, and the officer opined there was a difference “between the letter[]
of the law and the spirit of the law.” Although the law defines pimping as “knowing that
someone is working as a prostitute and deriving support or benefit from them, . . . . the
spirit of the law, the intent of the law, the way police officers interpret and enforce the
law is not to go after a taxi cab driver or the clerk at the grocery store or the guy who is
. . . doing her laundry, because he knows she’s a prostitute.”
                                       DISCUSSION
I.     Defendant’s Claims of Unconstitutional Vagueness Lack Merit
       Defendant contends the section 266h prohibition on pimping is unconstitutionally
vague because the phrase “derives support or maintenance in whole or in part” fails to
establish standards that are sufficiently definite to guard against the arbitrary deprivation
of liberty interests.2 In particular, he emphasizes that the prosecution’s expert, Sergeant
Joshi, testified that numerous people violate the “letter of” section 266h, including, for
example, cab drivers. Defendant also contends the section 266i prohibition on pandering
is unconstitutionally vague because it fails to provide guidance as to when a person has
crossed the line between a boyfriend and a panderer.3 In particular, he points to the

2
  Section 266h, subdivision (a), provides in relevant part: “[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 punishable by imprisonment in the state prison for three, four, or six years.”
3
  Section 266i, subdivision (a) provides in relevant part: “[A]ny person who does any of
the following is guilty of pandering, a felony, and shall be punishable by imprisonment in

                                              5
California Supreme Court’s conclusion in People v. Zambia (2011) 51 Cal.4th 965, 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.” (Id. at p. 981.) Defendant asserts the statute “fails to apprise a young
man who was not a pimp who meets and falls in love with a young woman who is
working as a prostitute where he crosses the line into committing the crime of
‘pandering.’ ”
       “The constitutional interest implicated in questions of statutory vagueness is that
no person be deprived of ‘life, liberty, or property without due process of law,’ as assured
by both the federal Constitution (U.S. Const., Amends. V, XIV) and the California
Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of law in
this context requires two elements: a criminal statute must ‘ “be definite enough to
provide (1) a standard of conduct for those whose activities are proscribed and (2) a
standard for police enforcement and for ascertainment of guilt.” ’ ” (Williams v. Garcetti
(1993) 5 Cal.4th 561, 567.) “The starting point of our analysis is ‘the strong presumption
that legislative enactments “must be upheld unless their unconstitutionality clearly,
positively, and unmistakably appears. [Citations.] A statute should be sufficiently
certain so that a person may know what is prohibited thereby and what may be done
without violating its provisions, but it cannot be held void for uncertainty if any
reasonable and practical construction can be given to its language.” ’ ” (Id. at p. 568.)
       We conclude defendant lacks standing to challenge the constitutionality of
sections 266h and 266i on vagueness grounds. This is because “ ‘a person to whom a
statute may constitutionally be applied will not be heard to challenge that statute on the
ground that it may conceivably be applied unconstitutionally to others, in other situations
not before the Court.’ ” (People v. Thomason (2000) 84 Cal.App.4th 1064, 1070.) That
principle applies in the present case, because defendant’s “ ‘conduct clearly falls under


the state prison for three, four, or six years: . . . (2) By promises, threats, violence, or by
any device or scheme, causes, induces, persuades, or encourages another person to
become a prostitute.”

                                                6
the statute’s purview.’ ” (Ibid.; see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069,
1095 [if a statute “clearly applies to a criminal defendant’s conduct, the defendant may
not challenge it on grounds of vagueness”].) With respect to the pimping charge, there is
no evidence defendant received financial support from Scott in the manner of a taxi
driver, motel operator, or any other hypothetical service provider; instead, the evidence is
that defendant received Scott’s prostitution proceeds as her pimp. With respect to the
pandering charge, there was strong evidence defendant was not merely Scott’s boyfriend,
including Scott’s testimony and the incriminating texts sent by defendant to Scott while
she was in the shelter. The evidence of his pimping and pandering of others following
Scott’s departure was also evidence of his common scheme of obtaining support from
active prostitutes. (See Part IV, post.)
       In his reply brief, defendant emphasizes the jury acquitted him of human
trafficking, which required a showing that he “deprive[d] or violate[d] the personal
liberty of” Scott. He also points out the jury had some difficulty in reaching verdicts on
the pimping and pandering counts: At one point the jury advised the court it was
deadlocked on the pimping count; and the jury requested clarification regarding the
timing of the conduct underlying the pandering count, in relation to when Scott became a
prostitute.4 Finally, defendant points out there was no evidence he “obtained noticeable
financial benefit” from his relationship with Scott, such as lifestyle changes or significant
purchases. Based on those circumstances, he argues the evidence against him was not
overwhelming and he therefore has standing to challenge the constitutionality of the
statutes. However, even if there was a basis for a fact finder to be skeptical of portions of
Scott’s testimony, defendant presents no basis to conclude the jury convicted defendant
based on anything other than a finding of a voluntary pimp-prostitute relationship.
Notably, the prosecutor based her argument for conviction on such a relationship; she did

4
  The jury asked, “does the procure have to happen at the beginning of the relationship or
at any time.” The court responded, consistent with Zambia, supra, 51 Cal.4th 965, “With
respect to whether the ‘procurement’ has to happen at the beginning of the relationship,
or at any time during the relationship, my response is this: there is no fixed time for the
‘procurement’ need to have occurred.”

                                              7
not argue defendant could be convicted of pimping and pandering if he was merely her
boyfriend.5
       In any event, sections 266h and 266i are not unconstitutionally vague. In People
v. Grant (2011) 195 Cal.App.4th 107, 112, the defendant argued the pimping statute is
unconstitutional “because it deprives him of his right of association by prohibiting
cohabitation with a known prostitute.” Another division of this court rejected that
contention, as well as the defendant’s contention the statute is “unconstitutionally
overbroad because it ‘insufficiently specifies the nature of the association it seeks to
criminalize. . . .’ ” (Id. at p. 115.) Grant held the statute was not vague—that is, it is
“ ‘sufficiently clear to inform persons of ordinary intelligence of the character of the
prohibited conduct.’ ” (Ibid.) Grant explained the statute did not “preclude a person
from accepting a known prostitute’s funds gained from the prostitute’s lawful activities or
for purposes other than the person’s support and maintenance.” (Id. at p. 116.) In
particular, a person who receives funds from a known prostitute for a “ ‘legitimate
professional service’ ” is not within the scope of the statute; “ ‘[i]n such circumstances,
even if paid with proceeds earned from prostitution, the [person] derives his support from
his own performance of services, and not directly from the prostitute’s earnings.’ ”
(Ibid., quoting Allen v. Stratton (C.D.Cal. 2006) 428 F.Supp.2d 1064, 1072, fn. 7.) Thus,
contrary to defendant’s hypotheticals and Sergeant Joshi’s testimony, a person
legitimately providing taxi services, selling groceries, or renting a hotel room to a known
prostitute is not within the scope of section 266h. Because application of the statute is


5
  In its brief, respondent challenged defendant’s standing on the basis that “ ‘his conduct
clearly falls under the statute’s purview,’ and ‘a person to whom a statute may
constitutionally be applied will not be heard to challenge the statute on the ground that it
may conceivably be applied unconstitutionally to others, in other situations not before the
Court.’ ” In his reply, defendant never challenged that standard but did seek to show that
the evidence did not establish that his conduct clearly fell within the statute. At oral
argument, defendant contended that a different standard for standing applied because he
had relied on an overbreadth as well as a vagueness challenge to the statutes. Because
this argument was raised for the first time at oral argument, we do not consider it. (Palp,
Inc. v. Williamsburg Nat. Ins. Co. (2011) 200 Cal.App.4th 282, 291, fn. 2.)

                                              8
not unclear in the circumstances hypothesized by defendant, his claim section 266h is
unconstitutionally vague fails.6
       Defendant’s claim section 266i is unconstitutionally vague was rejected in People
v. Hashimoto (1976) 54 Cal.App.3d 862. Hashimoto explained that both sections 266h
and 266i are “designed to discourage prostitution by discouraging persons other than the
prostitute from augmenting and expanding a prostitute’s operation, or increasing the
supply of available prostitutes.” (Hashimoto, at p. 867.) The court concluded section
266i is not vague, reasoning “It is not reasonably susceptible of being interpreted to cover
any activity beyond that involved in the social evil of pandering. [Citation.] The terms
‘procuring, persuading and encouraging’ are all words capable of precise definition.”
(Ibid.)7 Defendant suggests the statute does not provide sufficient guidance regarding
what conduct is prohibited when a person is a boyfriend of an active prostitute, but he
does not explain why the actual statutory language (“encourage,” etc.) is vague.
Defendant posits a hypothetical as to whether a motel manager that gave a prostitute a
discount, knowing the room’s intended use, would be guilty of encouraging prostitution.
We need not decide in the present case whether section 266i applies to such conduct, but
the possibility it does is not such an overbroad application as to render the statute
unconstitutionally vague.
       For the reasons stated, defendant’s constitutional challenges on the ground of
vagueness are without merit.

6
  Grant did not expressly address whether section 266h is applicable to a bona fide
boyfriend of a prostitute who derives unearned support from the prostitute’s earnings.
Even assuming it does, defendant does not show that would render the statute
unconstitutionally vague. In particular, he does not show that the possibility that police
might decline to pursue an investigation in such a case, as Sergeant Joshi testified, means
the statute provides insufficient guidance or “ ‘encourage[s] arbitrary or discriminatory
enforcement.’ ” (People v. Castenada (2009) 23 Cal.4th 743, 751.)
7
  Although the relatively recent Zambia decision held that the pandering statute includes
“encouraging a person who is already a prostitute,” that holding confirmed a line of cases
dating back to 1973. (Zambia, supra, 51 Cal.4th at p. 972.) That line of cases was
followed in Hashimoto, supra, 54 Cal.App.3d at p. 866, so Hashimoto’s holding on
vagueness was based on an understanding of section 266i consistent with Zambia.

                                              9
II.    The Trial Court Did Not Abuse Its Discretion in Admitting Expert Testimony
       Defendant contends the trial court abused its discretion in permitting Sergeant
Joshi to provide expert testimony regarding prostitution, pimping, and pandering. The
claim fails.
       “The requirements for expert testimony are that it relate to a subject sufficiently
beyond common experience as to assist the trier of fact and be based on matter that is
reasonably relied upon by an expert in forming an opinion on the subject to which his or
her testimony relates. [Citations.] Such evidence is admissible even though it
encompasses the ultimate issue in the case.” (People v. Olguin (1994) 31 Cal.App.4th
1355, 1371.) “On the other hand, ‘[e]xpert opinion is not admissible if it consists of
inferences and conclusions which can be drawn as easily and intelligently by the trier of
fact as by the witness.’ ” (People v. Valdez (1997) 58 Cal.App.4th 494, 506.) “ ‘As a
general rule, a trial court has wide discretion to admit or exclude expert testimony.”
(Ibid.) This discretion extends to the trial court’s determination “ ‘as to whether a
particular subject is a proper one for expert opinion.’ ” (People v. Dejourney (2011) 192
Cal.App.4th 1091, 1110 (Dejourney).)
       In admitting Sergeant Joshi’s expert testimony, the trial court relied on two federal
decisions, United States v. Taylor (9th Cir. 2001) 239 F.3d 994 and United States v. King
(D. Haw. 2010) 703 F.Supp.2d 1063. In Taylor, the government sought admission of
expert testimony on prostitution “in particular to explain why a person in [the testifying
prostitute’s] position might not have testified truthfully in previous proceedings about her
relationship with her pimp.” (Taylor, at p. 998.) The court approved admission of the
testimony, reasoning, “By and large, the relationship between prostitutes and pimps is not
the subject of common knowledge. [Citations.] A trier of fact who is in the dark about
that relationship may be unprepared to assess the veracity of an alleged pimp, prostitute,
or other witness testifying about prostitution.” (Ibid.) Similarly, in King, the court
reasoned expert testimony regarding prostitution was “pertinent to jurors’ determination
of the credibility of the prostitutes . . . . Without such testimony, jurors might presume
that the victims did not want to escape from [the d]efendant’s alleged operation because


                                             10
they failed to run away on the occasions when they were beyond his physical grasp. . . .
The Court finds that [the expert’s] testimony could aid the jury in understanding how
these women could be the victims of fraud, force or coercion rather than simply willing
participants with free will to exit their situation.” (King, at p. 1075.)
       Defendant contends Taylor and King are distinguishable because “Scott never
minimized [defendant’s] conduct . . . . To the contrary, [] Scott freely accused
[defendant] of guilt at all times and when he slapped her she became angry with him and
left him. She was not a battered woman, and any issues as to her credibility had nothing
to do with any reluctance to testify against [defendant] because of ‘psychological
issues.’ ” We disagree. Although Scott did not appear to minimize defendant’s conduct,
she did testify defendant coerced her to continue prostituting herself. The trial court
could reasonably conclude Sergeant Joshi’s testimony would aid the jury in
understanding why Scott did not take opportunities to leave defendant, and why she
returned to Oakland from Iowa, after traveling there from Albuquerque. Courts have
admitted expert testimony to explain victim behavior in analogous circumstances. (See,
e.g., Dejourney, supra, 192 Cal.App.4th at p. 1110 [“courts have repeatedly recognized
the appropriate use of expert testimony when an alleged victim’s actions during or
following a crime seem to contradict the victim’s claims in cases of alleged molestation
or abuse”].)8 The federal D.C. Circuit engaged in similar analysis in United States v.
Anderson (D.C. Cir. 1988) 851 F.2d 384. There, the court affirmed admission of expert
testimony on prostitution, reasoning the testimony “helped the jury to determine the
credibility of the government’s prostitute-witnesses, which counsel for [the defendant]
had sought to undermine on cross-examination by pointing up the inconsistencies in the
witnesses’ testimonies, and by intimating that they would not have remained with [the
defendant] if he had mistreated them as they claimed.” (Id. at p. 393.)



8
 Although the jury ultimately found defendant not guilty of human trafficking, the
prosecution’s theory was that Scott was coerced by defendant, so the expert testimony
was relevant to that theory.

                                              11
       Moreover, the trial court could reasonably conclude Sergeant Joshi’s testimony
about the rules of the Oakland prostitution subculture would aid the jury in understanding
what relationship characteristics—such as strict prohibitions on contact with men who
weren’t customers—were markers of a pimp-prostitute relationship, as well as why other
relationship characteristics—such as romantic behaviors—were not inconsistent with a
pimp-prostitute relationship. The California Supreme Court has recognized that expert
testimony regarding criminal subcultures may be appropriate. (People v. Gardeley
(1997) 14 Cal.4th 605, 617 [approving expert testimony regarding “the culture and habits
of criminal street gangs”].)
       Defendant argues the expert testimony was “cumulative” because Scott provided
“articulate and thorough” testimony regarding the rules of the Oakland prostitution
subculture. However, the prosecution was not obligated to rely on Scott, whose
credibility could be questioned, in order to educate the jury about those relevant facts.
Defendant also argues aspects of the expert testimony were “irrelevant” because they
described circumstances not present in the present case, such as the fact that many pimps
have multiple prostitutes working for them. However, defendant fails to show it is
“reasonably probable” (People v. Prieto (2003) 30 Cal.4th 226, 247) any irrelevant
testimony was prejudicial. To the extent that Sergeant Joshi described characteristics and
behavior typical of pimps but not manifested by defendant, it arguably was helpful to his
case rather than harmful.
       Finally, defendant contends Sergeant Joshi “vouched for [defendant’s] guilt” by
testifying on cross-examination that she doesn’t “work cases that don’t involve force, fear
or coercion.” We understand defendant’s objection to be that the expert improperly
expressed an opinion on his guilt. (People v. Leonard (2014) 228 Cal.App.4th 465, 493.)
However, because defendant failed to move to strike that testimony, his claim is not
cognizable on appeal. (Evid. Code § 353, subd. (a).) Neither did defendant object to
Sergeant Joshi’s testimony that various factual circumstances in the present case were
“consistent with” a pimp-prostitute relationship.
       The trial court did not abuse its discretion.


                                              12
III.   Defendant’s Brady Claim is Without Merit
       Defendant contends the trial court erred in denying his motion for mistrial based
on the prosecution’s failure to identify the Oakland police officer who approached Scott
while she was working on December 27, 2012, and then ultimately assisted her in getting
to a shelter. Defendant contends the prosecution was obligated to disclose the officer’s
name under Brady v. Maryland (1963) 373 U.S. 83. We conclude defendant has not
shown material evidence was suppressed by the prosecution.9
       “In Brady, the United States Supreme Court held ‘that the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.’ [Citation.] The high court has since held that the duty to
disclose such evidence exists even though there has been no request by the accused
[citation], that the duty encompasses impeachment evidence as well as exculpatory
evidence [citation], and that the duty extends even to evidence known only to police
investigators and not to the prosecutor [citation]. Such evidence is material ‘ “if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” ’ ” (People v. Salazar (2005) 35 Cal.4th
1031, 1042 (Salazar).) “ ‘The question is not whether the defendant would more likely
than not have received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ ”
(In re Brown (1998) 17 Cal.4th 873, 886.)
       On appeal, defendant makes the same argument his counsel made below, that the
officer who approached Scott while she was working was “central to [the] defense that
the officer may have put Miss Scott in a situation where she had to choose between going
to jail or claiming to be [a] victim.” Defendant suggests that, if the officer’s identity had


9
 Because we conclude defendant has not made a showing of materiality, it is
unnecessary to summarize the elaborate procedural history surrounding the search for the
police officer’s identity, defense counsel’s efforts to obtain disclosure of the name of the
officer, and the trial court’s reasoning and rulings.

                                              13
been disclosed, the officer’s testimony might have undermined Scott’s credibility by
showing she identified defendant as her pimp only because she was otherwise threatened
with arrest. Defendant asserts, “Obviously avoiding jail is a strong incentive, and by
accusing [defendant] of being a pimp Miss Scott in effect exchanged her freedom for his.
That motivation has a strong impact on the assessment of her credibility.”
       We recognize that, because defendant never had an opportunity to interview the
police officer at issue, it is appropriate to somewhat “relax[] . . . the specificity required
in showing materiality.” (United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 870
(Valenzuela-Bernal).) Nevertheless, as the United States Supreme Court explained,
“while a defendant who has not had an opportunity to interview a witness may face a
difficult task in making a showing of materiality, the task is not an impossible one. In
such circumstances it is of course not possible to make any avowal of how a witness may
testify. But the events to which a witness might testify, and the relevance of those events
to the crime charged, may well demonstrate either the presence or absence of the required
materiality.” (Id. at p. 871; see also United States v. Damra (6th Cir. 2010) 621 F.3d 474,
487–488.)10
       Defendant has failed to demonstrate the unidentified police officer’s role was so
important that failure to identify him constituted a Brady violation. At the outset, the
evidence does not support defendant’s assertion Scott would have been arrested had she
not reported defendant. Although Scott testified she thought the officer was going to
arrest her when he approached, there is no evidence the officer actually had probable
cause to arrest Scott for prostitution. Scott’s testimony is that she was searching for
shelters on her phone and talking with a possibly drunk “regular” at the time the officer
approached her. Without some indication the officer had probable cause to arrest Scott,
there is little reason to believe the officer had sufficient leverage to coerce Scott into


10
   Although Valenzuela-Bernal addressed a claim for denial of the right to compulsory
process, the United States Supreme Court analogized the materiality requirement for such
a claim to the materiality requirement for Brady claims. (Valenzuela-Bernal, supra, 458
U.S. at pp. 867–868.)

                                              14
falsely implicating defendant. Even more importantly, there is no evidence to support an
inference the officer’s decision to help Scott was conditioned on her reporting defendant.
The officer did not escort Scott to the shelter, and defendant cites no evidence he
followed up with Scott, suggested that another officer follow up with Scott, or filed a
report documenting the information he learned from Scott. Neither does defendant cite
any evidence suggesting Scott’s decision to report defendant to the police was anything
but an entirely voluntary decision she made after arriving at the shelter. Thus, even if
Scott claimed to be a victim the night of December 27, 2012 in order to avoid arrest,
there is no basis to conclude her subsequent report to the police was motivated by a desire
to avoid prosecution.
       Therefore, contrary to defendant’s assertions below and on appeal, there is no
indication the unidentified police officer was directly connected to Scott’s decision to
report defendant to the police; without that direct connection, there is insufficient basis to
conclude the officer was a material witness within the meaning of Brady. Neither has
defendant shown there was a reasonable probability (Salazar, supra, 35 Cal.4th at
p. 1042) of a different outcome if the officer’s testimony contradicted Scott’s description
of the events of the night of December 27, 2012, because that was only a small portion of
her testimony and because her testimony was corroborated by defendant’s texts and other
evidence in the case. The trial court did not err in denying defendant’s motion for a
mistrial on the ground of Brady error.
IV.    The Trial Court Did Not Err in Admitting Evidence of Uncharged Conduct
       Defendant contends the trial court erred in admitting evidence that, after Scott
entered a shelter, he tried to recruit prostitutes to work for him on an internet site and
acted as a pimp to D.J. The trial court did not abuse its discretion. (People v. Lewis
(2001) 25 Cal.4th 610, 637 (Lewis).)
       The introduction of evidence of a defendant’s uncharged conduct is governed by
Evidence Code section 1101. That statute reads, in relevant part, as follows: “(a) Except
as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a
person’s character or a trait of his or her character (whether in the form of an opinion,


                                              15
evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b)
Nothing in this section prohibits the admission of evidence that a person committed a
crime, civil wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, . . . ) other than his or her disposition to commit such an act.” (Evid. Code,
§ 1101.)
       The California Supreme Court has “considered specific circumstances under
which evidence of uncharged crimes may be admitted under subdivision (b) of Evidence
Code section 1101. When the prosecution seeks to prove the defendant’s identity as the
perpetrator of the charged offense with evidence he had committed uncharged offenses,
the admissibility of evidence of the uncharged offenses turns on proof that the charged
and uncharged offenses share sufficient distinctive common features to raise an inference
of identity. A lesser degree of similarity is required to establish the existence of a
common plan or scheme and still less similarity is required to establish intent.
[Citations.] In order to be admissible to prove intent, the uncharged misconduct must be
sufficiently similar to the charged offense to support the inference that the defendant
probably acted with the same intent in each instance.” (People v. Lindberg (2008) 45
Cal.4th 1, 23.) Regardless of the theory of admissibility, “evidence of uncharged
misconduct ‘ “is so prejudicial that its admission requires extremely careful analysis” ’ ”
and “ ‘[t]he probative value of the uncharged offense evidence must be substantial and
must not be largely outweighed by the probability that its admission would create a
serious danger of undue prejudice, of confusing the issues, or of misleading the jury.’ ”
(Lewis, supra, 25 Cal.4th at p. 637.)
       Although courts often group the theories together, the three theories of
admissibility differ in “subtle but significant” ways. (People v. Ewoldt (1994) 7 Cal.4th
380, 394, fn. 2 (Ewoldt).) Under the identity theory, the evidence is admitted not to show
that a crime was committed, but that the defendant was the one that committed the crime.
(Ibid. [“Evidence of identity is admissible where it is conceded or assumed that the


                                              16
charged offense was committed by someone, in order to prove that the defendant was the
perpetrator.”].) Under the intent theory, the evidence is admitted to show the defendant’s
intent, where intent remains an issue even assuming the defendant committed the alleged
conduct. (Ewoldt, supra, 7 Cal.4th at p. 406 [“[e]vidence of intent is relevant to establish
that, assuming the defendant committed the alleged conduct, he or she harbored the
requisite intent”].) Finally, under the common plan theory, the evidence is admitted to
support an inference that criminal conduct occurred, where the defendant disputes the
alleged conduct occurred at all. (Id. at p. 394 [“Evidence of a common design or plan . . .
is not used to prove the defendant’s intent or identity but rather to prove that the
defendant engaged in the conduct alleged to constitute the charged offense.”].)
       In the present case, defendant objected to the evidence of his involvement with
D.J. and his attempts to recruit other prostitutes, and the trial court found the evidence
was admissible to prove defendant’s intent and to show a common plan and was not
subject to exclusion under section 352 of the Evidence Code. We conclude the trial court
did not abuse its discretion in concluding the evidence was admissible to show a common
plan. Defendant’s identity was not at issue, and, if defendant engaged in the conduct
described by Scott, “his intent in doing so could not reasonably be disputed.” (Ewoldt,
supra, 7 Cal.4th at p. 406; see People v. Lopez (2011) 198 Cal.App.4th 698, 715 [under
section 352 of the Evidence Code, “evidence of uncharged acts cannot be used to prove
something that other evidence showed was beyond dispute; the prejudicial effect of the
evidence of the uncharged acts outweighs its probative value to prove intent as it is
cumulative regarding that issue”].) On the other hand, as explained below, the evidence
of uncharged conduct showed a common plan that corroborated Scott’s testimony that
defendant encouraged her to engage in prostitution and received the proceeds of her
prostitution.
       “To establish the existence of a common design or plan, the common features
must indicate the existence of a plan rather than a series of similar spontaneous acts, but
the plan thus revealed need not be distinctive or unusual. . . . [E]vidence that the
defendant has committed uncharged criminal acts that are similar to the charged offense


                                             17
may be relevant if these acts demonstrate circumstantially that the defendant committed
the charged offense pursuant to the same design or plan he or she used in committing the
uncharged acts.” (Ewoldt, supra, 7 Cal.4th at p. 403.) The evidence that defendant was
D.J.’s pimp and attempted to recruit numerous other prostitutes showed defendant’s
common plan of obtaining personal financial benefit through establishing relationships
with current prostitutes. That evidence of a common plan, in turn, supported an inference
that defendant established a similar relationship with Scott, and that his relationship with
her was not merely that of a boyfriend. (Id. at p. 393 [“ ‘The presence of a design or plan
to do or not to do a given act has probative value to show that the act was in fact done or
not done.’ ”].) Although defendant’s common plan is not “distinctive or unusual,” his
uncharged acts of pimping and pandering “demonstrate circumstantially that” he
employed a similar plan in his relationship with Scott. (Id. at p. 403.)
       Defendant also argues in passing that the trial court erred in failing to exclude the
evidence under Evidence Code section 352 because there was a danger the jury would
convict defendant for his conduct in relation to D.J. and for his efforts to recruit other
prostitutes. Although that is a factor weighing against admission of the evidence
(Ewoldt, supra, 7 Cal.4th at p. 405), the trial court did not abuse its discretion. The
evidence of defendant’s uncharged conduct had high probative value due to its temporal
proximity to the charged offenses and the circumstance that the sources of the evidence
of the uncharged conduct were independent from the source of the evidence of the
charged offense. (Id. at pp. 404–405; People v. Balcom (1994) 7 Cal.4th 414, 427.)
Moreover, the uncharged conduct was not more inflammatory than the charged conduct,
as the charged conduct included allegations of violence and coercion. (Ewoldt, at p. 405;
People v. Sullivan (2007) 151 Cal.App.4th 524, 559.)11 In light of the passing nature of
defendant’s argument on the point, the trial court’s ruling under Evidence Code section
352 requires no further discussion.

11
  It is true that D.J. was a minor when she was with defendant, but she testified she told
defendant she was 19 and defendant was always nice to her. On balance, the allegations
regarding D.J. were not more inflammatory.

                                              18
      The trial court did not abuse its discretion in admitting evidence of defendant’s
uncharged conduct relating to pimping and prostitution.
                                     DISPOSITION
      The judgment is affirmed.




                                                SIMONS, Acting P.J.




We concur.




NEEDHAM, J.




BRUINIERS, J.




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