Filed 12/7/15 Certified for Publication 12/22/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                              DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                                       G050444

        v.                                                          (Super. Ct. No. 13CF1958)

RAPHAEL JARED SCALLY,                                               OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
                 David R. Greifinger, under appointment by the Court of Appeal, for
Defendant and Appellant.
                 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *              *             *
              The jury found defendant guilty of one count of pimping (Pen. Code,
§ 266h, subd. (a)) and one count of pandering (Pen. Code, § 266i, subd. (a)). The court
held a bench trial and found it to be true that defendant committed the offenses while out
on bail. (Pen. Code, § 12022.1, subd. (b).) The court sentenced defendant to the midterm
of four years on the pimping count, stayed imposition of the sentence on the pandering
count, and imposed, but stayed, a two year on-bail enhancement.
              On appeal, defendant raises a single issue: that the court erred by
permitting the People’s expert to testify that certain text messages sent from defendant to
individuals other than the particular prostitute at issue were consistent with pimping
activity. Defendant contends this was improper character evidence under Evidence Code
section 1101. We conclude the evidence was relevant to rebut the defense that the
prostitute was merely defendant’s girlfriend — a nonpropensity basis for relevance —
and thus we affirm.


                                          FACTS


              On June 14, 2013, Santa Ana Police Officer Daniel Padron was assigned to
the vice unit and was working undercover in a high prostitution area. Padron observed a
Volkswagon traveling on a nearby side street abruptly double park in the middle of the
street and let out two women from a rear door. One of the women who got out of the car
was AnaMarie S. (AnaMarie), the other was Dakota L. (Dakota), the latter of whom is
the subject of the pimping and pandering charge here. There were three males that
remained in the car.
              Padron followed AnaMarie and attempted to position his vehicle to speak
with her, but she passed his vehicle and spoke with the driver of a truck; she entered the
truck and it drove away. The truck was subsequently stopped. Padron spoke with the
male driver and AnaMarie and found $50 on the armrest between them. The driver of the

                                             2
truck testified that he had agreed to pay AnaMarie $50 for a sex act, but that the police
had stopped his truck before she performed the act.
              Approximately 45 minutes after initially seeing the Volkswagon drop off
the women, Padron spotted it again and made contact with the occupants. Defendant was
in the rear passenger seat. Padron found $194 in defendant’s right sock. Padron asked
defendant if he had a job, defendant said he did not. Padron asked defendant where he
got the money; defendant replied he did not know.
              Padron obtained defendant’s phone, which was continuously ringing. Text
messages were being sent to defendant’s phone from a number identified as “Sweetie,”
which Padron read. Padron responded to the text messages, first asking where she was
and ultimately arranging to meet her. Dakota was waiting at the meeting location.
Padron recognized Dakota from an earlier prostitution investigation in which Padron had
responded to her online advertisement Dakota had agreed to exchange money for a sex
act. Dakota had a phone on her that contained text messages corresponding to the
messages on defendant’s phone from “Sweetie.” Dakota did not have any money on her.
              The police extracted many text messages from defendant’s phone, which
were admitted into evidence (and which are discussed in connection with the People’s
expert’s testimony, below). The police also found photographs of Dakota on defendant’s
phone that corresponded to the photographs Padron had discovered in the online
prostitution advertisement in his previous investigation of Dakota
              The People called Officer Luis Barragan as an expert in the field of
pimping, pandering, and prostitution. Barragan testified that a tattoo on AnaMarie’s
thigh is indicative of a pimp-prostitute relationship. The tattoo depicts a crown on top of
the letter P, which is next to the letter D and has dollar signs floating around the letters.
Barragan testified that tattoos of a crown and a dollar sign are common symbols of a
pimp. He also testified the term “pimp daddy” is a common term used by prostitutes to
describe a pimp. Barragan offered similar opinions about other tattoos on AnaMarie.

                                               3
              Barragan testified that a tattoo on Dakota’s thigh of a flower with a dollar
sign in the middle, underneath which appears the word “Stage,” is indicative of a pimp-
prostitute relationship, focusing, again, on the dollar sign. “Stage” is defendant’s
moniker.
              Barragan also testified about the numerous text messages extracted from
defendant’s phone. In one exchange between defendant and Dakota, which took place on
June 7, 2013 (one week before the arrest), defendant stated, “Bitch I’m good on u don’t
                                                                       1
say shit to me go worry about getting high instead of getting money,” “U dumb bitch,”
“I’m sick of u & ur games but its coo watch ima show yo ass,” “U a weak ass bitch.”
Dakota: “Your just realy being over the top.” Defendant: “I’m done,” “Do u I’m on my
own hustle,” “I’ma make my own $ my way,” “I’m tired of going through this wit u,” “U
making me look super bad rt now smh [shaking my head] its all good though,” “I got u.”
Defendant continued: “U was so down to walk to get a swisher to get fuckin high but u
don’t wanna walk the blade make no money SMH bitch u weak.” (The term “blade”
refers to an area where a prostitute attempts to solicit business.) “U gonna see tho watch!
U think shit is a game.” Dakota: “Ok idk why your saying wen I’m going out your just
realy being mean.” Defendant: “Don’t text me.” “Don’t talk to me.” “All u worried
about is getting high I’m cool on you foreal.” Dakota: “You alwaz say shit win your
mad n u know I’m about my money idk why your saying this shit know,” “I do
everything in my power to keep u happy but tht doesn’t seem to work.” Defendant: “Get
off my line.” “I’m done.” “Do u?” Dakota: “Wht do u mean by tht?” “Forreal.” “Stop
saying tht.” Defendant: “Goodnight.” Dakota: “No talk to me for real.” “Plzzzz.” “Ok
stage I got the messige I will leave you alone ok I will just try my best to get money shit
you ack like I waz talk to other nigga n shit but ok I got the messige.” A few hours later


1
              All text messages are repeated in their original form, including grammatical
errors.

                                             4
defendant texted, “U good?” Dakota replied, “Yea.” Defendant responded, “Ok,” “U
good.”
              Barragan opined this exchange is consistent with a pimp-prostitute
relationship because “it shows a pattern of psychological control.” “Because it shows
him verbally putting her . . . down and telling her, in essence, she is not good for him.”
“And he continues to put her down, where eventually he brings her back up.” Barragan
also noted that some of the terminology in the exchange, such as “walk the blade,” is
consistent with a pimp-prostitute relationship.
              Barragan also opined that the following exchange was consistent with a
pimp-prostitute relationship: Dakota: “There’s 2 pips out.” Defendant: “U good?”
Dakota: “Yea.” Defendant: “Wya [where you at]?” Dakota: “Going back to the
street.” Defendant: “Ok.” “After yo date get in the car.” “We done.” Barragan
explained that a “date” in the pimping culture refers to an agreed upon sex act with a
client. Barragan further explained, “He’s supervising her and continuously asking her if
she’s okay, or where her location is at, and also, giving her directions or orders.”
              Barragan also opined the following conversation between defendant and
Dakota was indicative of a pimp-prostitute relationship: Defendant: “U good?” Dakota:
“Yeah the cops just left tht street thoo my trick getting ciggs nd he pay star to come along
but she didn’t have to do anything I have 120.” Defendant: “Ok.” “Are you still
working? Just get 250 & we can leave.” Approximately 30 minutes later, defendant:
“Go somewhere so we can pick yall up.” “Wya?” “Get off camile.” A “trick” is another
name for a john, or a client. Barragan opined that this “appears a conversation is being
had between a pimp and a prostitute out on the track.” Barragan explained that a
prostitute usually has a quota to meet each night on the street, and opined that the
numbers referred to are dollar amounts.




                                              5
              Another exchange Barragan testified was consistent with a pimp-prostitute
relationship was the following: Defendant: “U good?” Dakota: “Yea.” Defendant:
“Ok I see u getting it we been up & down the blade.” Dakota: “Yea I have 130.” “I’m
trying.” Defendant: “Ok keep working.”
              The final exchange between defendant and Dakota occurred the night of the
arrest. Defendant: “U good?” “We parked on Camille.” Dakota: “Ok yea getting drop
back off.” “Be careful some times the cops shine the lights in the cars.” “Just saw you
pass.” Defendant: “We on shannon.”       Dakota: “Gang of hoes out here n pimps.”
Defendant: “ok ima pull over there.” “U good?” “U see me showin out on the blade?
Lol.” Dakota: “Yeah lol I have 140 and on a date right know for 60 the black girls are
mad lol.” Defendant: “Get 300 & come in.” “U already got 200.” “Just get another
100.” Dakota: “Got one for 80.” Defendant: “After that go to Shannon.” Dakota: “I’m
done.” Defendant: “Where u at?” Dakota: “On shannon.” Defendant: “On my way u
did good luv.” Dakota: “Thank u daddy.” “I had to do good today.” Defendant: “Hella
cops out here.”
              Barragan opined that this conversation is consistent with a prostitute
indicating she had been dropped off after a date and updating her pimp on the amount she
had made, and the pimp giving her instructions on how much more to make prostituting.
Barragan explained that Camille is a street near the main track where prostitutes are
typically dropped off. Shannon is also a street near the main track where prostitutes are
frequently dropped off to avoid police detection. And in connection with Dakota’s
comment that the black girls were mad, Barragan explained that white females tend to
make more money than prostitutes of other races.
              Barragan also testified about various text messages not involving Dakota,
which is the evidence defendant claims was erroneously admitted. In one message to
someone identified as “Ray,” defendant bragged, “Man my bitch had a 500 $ date
yesterday,” “And a 1k date today,” “And she got another 1k date for Friday,” “I’m maxxx

                                             6
up rt now bro,” “I’m doing really good rt now.” Barragan testified that this is consistent
with pimping culture because pimps tend to brag about the money their prostitutes are
making on the job.
              In another exchange with “Ray,” Ray stated, “U gone b good pimp.” Later
in that exchange, defendant stated, “Man guess who on my line lol,” “Jasmine Bell,” “Its
Choose’n season lmao,” “Niggaz better cuff they bitch lmao,” “She outta pocket talkin to
me.” Barragan explained that “out of pocket” could mean a prostitute is looking to leave
her current pimp for a new pimp. In a text exchange with “Jazmine Bell,” defendant
stated “I’m to focused on getting $$$,” “I need a girl who hustle like me,” “A lot of girls
I kno are lazy & to much drama.” Barragan opined this was consistent with pimping.
              In another exchange with Jazmine Bell, defendant stated, “What’s good
with u Jasmine, this Stage.” When asked what he has been up to, defendant responded,
“Shit just grindin tranna get this $$$ . . . .” Defendant identifying himself as “Stage” is
consistent with the tattoo Dakota had on her leg depicting the word “Stage.” Barragan
also testified the term “grinding” refers to prostitution activity in the pimping culture.
              In an exchange with someone identified as “moe,” defendant commented he
was “wit 2 bad hoes,” “They about to work the blade.”
              In an exchange with someone identified as “dakeis,” defendant is asked, “U
comin out tonight?” When defendant responded “Probably,” dakeis texted “smh,” after
which defendant explained, “Idk [I don’t know] yet she might have an overnight date
tonight.” Barragan explained that in the pimp culture an overnight date is when a client
is willing to pay for a prostitute’s service for the entire night.




                                                7
                 In an exchange with someone labeled “twin,” defendant commented he was
“Makin sum $$$,” “I went to harbor last night,” “It was weak smh.” Barragan interpreted
this as a reference to the popular area around Harbor Boulevard where prostitutes ply
their trade.
                 Finally, Barragan was asked about the following hypothetical: “Let’s
assume we have Jane Doe 1. She gets out of a car. A guy named Dave is in the car, let’s
call him Dave. Okay. Jane Doe 1 gets out of the car with a guy named Dave in an area
known for prostitution, high prostitution area. She’s got Dave’s nickname tattooed on
her, that tattoo is a dollar symbol. She only calls Dave by daddy or his nickname. She’s
given an amount by Dave to make while working the blade. [¶] She tells Dave that she’s
on a date for 60 after making 140. And she’s given a quota to get $300 and stop
working.” Barragan opined this was a pimp-prostitute relationship: “there’s multiple
indicators. She’s being dropped off in a prostitution track. She’s got the tattoo. She’s
receiving phone calls. She’s being directed how much money to make. She’s telling
Dave how much money she’s made. He’s telling her how much more money to make
before coming back to him. And they are using words such as . . . ‘date’ and ‘blade.’ [¶]
Based on the totality of that hypothetical and factoring in all those indicators, coupled
with my expertise in the subject, I would have to say that yes, it’s a pimp/prostitute
relationship.”
                 Before argument the court dismissed the counts of pimping and pandering
as to AnaMarie pursuant to Penal Code section 1118.1. Thus the sole charges remaining
were pimping and pandering as to Dakota.
                 In closing argument, defense counsel argued defendant’s relationship with
Dakota was merely a boyfriend/girlfriend relationship: “Mr. Scally had a girlfriend who
was a prostitute.” “It’s not a crime.” “She did not support Mr. Scally in whole or in
part.”



                                              8
                                        DISCUSSION


              Defendant’s sole contention on appeal is that the admission of text
messages pertaining to pimping activity not involving Dakota, and Barragan’s testimony
about the same (the “disputed evidence”), was improper character evidence under
Evidence Code section 1101, subdivision (a). Defendant contends the disputed evidence
was inadmissible because it “effectively gutted the defense that appellant’s interactions
with Dakota were between a boyfriend and girlfriend.” In our view, however, that is
precisely why the disputed evidence was admissible.
              Penal Code section 266h, subdivision (a), defines pimping as follows:
“Except as provided in subdivision (b), any 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, . . . is guilty of pimping, a felony, and shall be
punishable by imprisonment in the state prison for three, four, or six years.” To prove
this count, the People had to prove defendant knew Dakota was a prostitute and that the
money Dakota earned as a prostitute supported defendant, in whole or in part.
(CALCRIM No. 1150.)
              The issue is whether the court admitted prejudicial evidence in violation of
Evidence Code section 1101, subdivision (a), which states, “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, 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.” Subdivision (b) provides several
exceptions: “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, [or] absence of
mistake or accident, . . .) other than his or her disposition to commit such an act.”

                                               9
              The texts between defendant and others were relevant on the issue of intent.
Defendant’s argument at trial was, essentially, that defendant was an innocent bystander,
a helpful boyfriend who took no part in Dakota’s independent prostitution activity.
Defendant’s counsel described Dakota as “an independent woman,” and called her “a
business woman.” Defense counsel argued there was nothing illegal about having a
prostitute as a girlfriend. To accept this theory the jury would have to conclude that
defendant was merely holding Dakota’s money for her, and his various instructions to her
were simply disinterested encouragement for her to earn more. As implausible as that
theory seems, the prosecution was entitled to rebut it by showing that defendant is
steeped in the pimping culture, thus undermining the claim that defendant was merely an
innocent bystander. And that is precisely what the texts with third parties did. They
showed him using pimp terminology, bragging about the money he was making,
recruiting, exhibiting knowledge of high prostitution areas, and scheduling his work
around prostitution dates. This evidence informed the jury that when defendant
apparently acted as Dakota’s pimp on June 14, 2013, he was not a victim of his own
ignorance, but was deliberately acting the part of the pimp.
              Even if we assume the court erred in admitting the disputed evidence
(which it did not), the error was harmless. The record overwhelmingly supports the
conviction for this charge. In closing argument, defendant’s counsel acknowledged that
defendant knew Dakota was a prostitute: “I’m not here to argue that [defendant] didn’t
know what she was doing out there.” And there was circumstantial evidence that he
derived support from Dakota the night of the arrest. In her text messages to him shortly
before the arrest, she claimed to have made $200. When defendant was arrested, he had
approximately $200 ($194) stuffed into his sock, and he had no explanation for how he
got it. Dakota had no money on her when she was apprehended. A jury could reasonably
conclude defendant had derived the $200 from Dakota’s prostitution activities.



                                            10
Moreover, a jury could conclude that, as a matter of common sense, when defendant was
instructing Dakota to meet certain quotas, he was doing so for his own gain.
              With regard to the pandering charge, Penal Code section 266i, subdivision
(a)(2), defines pandering as anyone who “[b]y promises, threats, violence, or by any
device or scheme, causes, induces, persuades, or encourages another person to become a
prostitute.” Our high court has held that this applies to existing prostitutes as well: “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.” (People v. Zambia (2011) 51 Cal.4th 965,
975.) “[W]e conclude 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.” (Id. at p.
981.)
              Here again, even if we assume the court erred in admitting the disputed
evidence (which it did not), the error was harmless. The record overwhelmingly supports
the pandering charge. One week before the arrest, when Dakota apparently was not
working enough as a prostitute for defendant’s liking, defendant berated her and made
veiled threats: “ima show yo ass.” “U gonna see tho watch! U think shit is a game.” The
threats had their intended effect, with Dakota ultimately capitulating: “Ok stage I got the
messige I will leave you alone ok I will just try my best to get money . . . .” On the night
of the arrest defendant was instructing Dakota to continue prostituting until she had made
a certain quota. He was thus encouraging her by the force of his threats and
psychological manipulation to continue prostituting.




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                                DISPOSITION


          The judgment is affirmed.




                                           IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.




                                      12
Filed 12/22/15
                             CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                          G050444

        v.                                             (Super. Ct. No. 13CF1958)

RAPHAEL JARED SCALLY,                                  ORDER

    Defendant and Appellant.


                 The Orange County District Attorney has requested that our opinion filed
on December 7, 2015, be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED.
                 The opinion is ordered published in the Official Reports.



                                                   IKOLA, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.
