Filed 7/7/14 P. v. Lupovitz CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055849

v.                                                                       (Super.Ct.No. RIF146943)

OFER MOSES LUPOVITZ,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. David B. Downing,

Judge. Reversed and remanded.

         Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Julie L. Garland, Assistant Attorney General, William M. Wood and Lynne G.

McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.




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       A grand jury issued a 180-count indictment charging defendant and appellant,

Ofer Moses Lupovitz (defendant), and others who are not parties to this appeal, with

conspiracy to commit pimping and pandering in violation of Penal Code1 sections 182,

subdivision (a)(1), 266h, and 266i (count 1); pimping in violation of Penal Code section

266h (count 2); pandering in violation of Penal Code section 266i (count 3); filing a false

tax return in violation of Revenue and Taxation Code section 19705, subdivision (a)(1)

(counts 8-10, 12); failing to file a tax return in violation of Revenue and Taxation Code

section 19706 (counts 11 & 13); grand theft in violation of Penal Code section 487,

subdivision (a) (counts 27-28); and money laundering in violation of Penal Code section

186.10, subdivision (a) (counts 29-180).2 Both sides agreed to sever the trial on counts 1,

2, and 3 from the trial on the remaining counts. The parties further agreed if the jury

found defendant guilty on counts 2 or 3, defendant would then plead guilty to various

other counts, including all the money laundering charges.

       Following a lengthy trial, the jury found defendant guilty on counts 1 and 2.

Therefore, defendant pled guilty to the other counts, as agreed, and the trial court

sentenced him to serve a total term of nine years in state prison.3 In this appeal from the

subsequently entered judgment, defendant raises only one issue—the trial court

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

       2 The indictment also included various enhancements regarding the amount of
money stolen and laundered, the details of which are not pertinent to our resolution of the
issues defendant raises in this appeal.

       3 The abstract of judgment is incorrect in numerous respects. Because we are
reversing the judgment we will not direct the abstract be corrected.


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committed reversible error by correcting its erroneous jury instruction on the elements of

the crime of pimping after defendant had relied on and argued the incorrect jury

instruction in his closing argument. We conclude the trial court violated defendant’s state

and federal constitutional right to a fair trial. Therefore, we will reverse the judgment.4

                                           FACTS

       The facts of the underlying case are not relevant to our resolution of the issue

defendant raises in this appeal. In any event, they are set out at length and in great detail

in the parties’ respective briefs. For our purpose, it is sufficient to note that defendant

was a co-owner of Elite Entertainment (Elite), an escort service with offices in various

locations, including Palm Springs. Women who worked for Elite signed contracts that

said it was illegal for them to engage in sex acts with customers. Secretaries who

answered calls for Elite’s services were directed to tell callers that Elite provided exotic

dancers and nude body rubs. A dancer sent out on a call collected a $200 show fee for an

hour of time. That fee belonged to Elite. The dancer’s compensation consisted of tips

negotiated with the customer.

       Suspecting Elite operated as a cover for prostitution, an investigator with the

Riverside County Sheriff’s Department initiated a sting operation in which undercover

police officers posed as clients. The officers conducted between eight and 10 operations

in which they called Elite, asked for a girl to be sent to a hotel room, and when the girl


       4  Defendant filed a petition for writ of habeas corpus challenging the validity of
his guilty plea (case No. E058729), which we ordered considered with this appeal. We
will resolve that petition by separate order.


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arrived, asked the girl to engage in an act of prostitution. After paying the required fee,

the officer would request a sex act, and a price would be negotiated. The officer would

use a ruse to avoid actually engaging in sex once the girl was sufficiently involved in the

explicit conduct.

       Search warrants executed at various locations, including defendant’s home and

Elite’s Palm Springs office, netted business records and bank account information that

connected defendant with the operation of the escort service. Several alleged prostitutes

and former employees of Elite testified at trial about the operation of the business. Two

of those women testified defendant knew that Elite’s escorts engaged in sex acts and that

defendant received money collected by the escorts for those acts.

       In his defense, defendant presented testimony of his former attorney regarding the

operation of escort services in general, and the operation of Elite, in particular. In that

testimony, the attorney stated that escort services operate as the booking agent for the

escorts. For a fee, the escort service advertises and books shows for the escorts, all of

whom are independent contractors. Defendant retained the attorney to incorporate the

entity under which Elite did business, and to draft various agreements including a

partnership agreement in which defendant would be a “silent investor” while the other

partner would operate the business. The attorney also drafted the so-called agency

agreements that created the independent contractor relationship between Elite and the

escorts. Those agreements also stated the women were not allowed to engage in acts of

prostitution.




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       Additional factual and procedural details pertinent to our resolution of the issue

raised in this appeal will be recounted below.

                                       DISCUSSION

                                   A. Procedural Details

       Before closing arguments, the trial court instructed the jury, in order to find

defendant guilty of pimping as alleged in count 2, the prosecutor had to prove, among

other things, that defendant “knew Arielle Yori, Candis Castro, Tiffany Welch, Carson

Bailey, Leanne Bell, Shawna Alexander, Cynthia Rodriguez, Mahalia Pereza, Courtney

Hoffman, Rebecca Hernandez, Larenda Lara, Kelly Alderman, and Kimberly Smith were

prostitutes.” (Italics added.) Because the trial court’s instruction used the conjunction

“and,” defense counsel argued in closing that to find defendant guilty of pimping, the

evidence had to prove defendant knew all of the named women, “not some, not one, but

all of these individuals were prostitutes.” Defense counsel argued that a failure of proof

as to one of the named women required the jury to find defendant not guilty on the

pimping and pandering counts.

       The prosecutor also included the above quoted jury instruction in her initial

closing argument. She displayed the instruction in a Power Point presentation, and

advised the jury that in order for them to find defendant guilty of pimping, the

prosecution was required to prove “the defendant knew that all of the[] girls, and what’s

listed there [referring to the displayed jury instruction] are the women that were talked

about in this case, specifically or testified . . . .” Although the prosecutor did not

complete the thought, when she discussed the second element of pimping, she stated,


                                               5
“So, in addition to knowing that they were prostitutes, the evidence has to show . . . that

the money or the proceeds that the prostitutes earned working for Elite supported the

defendant in whole or in part.”

       After defense counsel’s closing argument, the prosecutor realized the apparent

error in the jury instruction and requested a conference in chambers. Although that

discussion was not reported, the trial court recounted the essential details when later

addressing the jury’s questions about the pimping and pandering charges. Because the

jury acquitted defendant on the pandering charge, we will only recount their question

about the pimping jury instruction. In that regard, the jury asked with respect to the

pimping charge whether, to be guilty of that crime, defendant had to know all the women

listed in the jury instruction were prostitutes.

       In discussing with counsel the appropriate response to the jury’s question, the trial

court noted that the issue “no doubt arose because of the fact that the defense lawyers[5]

yesterday argued . . . since the word ‘and’ is used instead of the word ‘or’ in naming all

the ladies in the instruction, that, therefore, all of the ladies had to be found to be

prostitutes . . . .” The trial court added, “And we had a discussion off the record about

that. My response was when [the prosecutor] argued, she could clean it up by saying

‘any one would be sufficient.’ And that’s the way it was left.”




       5 Defendant was represented at trial by two attorneys, both of whom argued
during closing. Two deputy district attorneys prosecuted the case.


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       In accordance with that understanding, in her final closing argument, the

prosecutor told the jury, “I respectfully, unlike what [defense counsel] told you, I

respectfully disagree with his interpretation of the law. The law does not require the

prosecution to prove more than one of these girls was a prostitute, and that the defendant

knew it and was deriving support from it. It is simply not the state of the law.” The

jurors apparently recognized the conflict between the attorneys’ closing arguments and

the jury instruction, as evidenced by their previously noted question to the judge during

their deliberations.6

       In discussing the appropriate response to the jury’s question, defense counsel

argued the prosecutor should be estopped from asserting that the People had to prove that

defendant only knew that one of the identified women was a prostitute because the

prosecutor had submitted the pimping jury instruction to the court, she had displayed it to

the jury in her Power Point presentation during her closing argument and, as a result,

defense counsel had argued that specific instruction during his closing argument.

Alternatively, defense counsel asserted the trial court either should grant a mistrial

because defendant’s right to competent, credible counsel had been violated, or should

allow defense counsel to reargue the case, this time relying on the correct jury instruction.

Finally, defense counsel argued the trial court should answer the jury’s question with a




       6The jury’s actual question was, “Pimping—paragraph 1 and 2—Does the
defendant have to know that all of the women on the list were prostitutes and that the
proceeds from all of the prostitutes supported defendant?”


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simple “no.” Ultimately, however, the trial court denied all of defendant’s requests. The

trial court responded to the jury’s question, “No. One is sufficient.”

       After the jury returned their guilty verdicts, defendant moved for a judgment of

acquittal and/or new trial. He argued in that motion, as he does in this appeal, because

the prosecutor did not object to the incorrect jury instruction7 and the trial court

instructed the jury according to that instruction without objection from the prosecutor, the

incorrect jury instruction on pimping became law of the case. Defense counsel also

reasserted his ineffective assistance of counsel claim. The trial court denied defendant’s

motions.

                                          B. Issue

       In this appeal, defendant reasserts his law of the case argument. Law of the case,

as defendant raises it in this appeal, is based on cases from jurisdictions other than

California, which hold the prosecution, in an appeal, may not for the first time challenge

the jury instruction that defines the elements of the crime, even if the instruction added an

element that is not included in the statutory definition of the offense. “The law of the

case is applied to hold the government to the burden of proving each element of a crime

as set out in a jury instruction to which it failed to object, even if the unchallenged jury

instruction goes beyond the criminal statute’s requirements. [Citation.] In cases to which


       7  The record indicates the trial court proposed the jury instructions and then
asked the attorneys to review them. In their discussion of CALCRIM No. 1150, the
instruction on the elements of the crime of pimping, the only subject addressed was
whether the instruction included all the names of all the women about whom the
prosecution had presented evidence at trial.


                                              8
the doctrine of law of the case applies, the evidence must conform to the unchallenged

jury instructions to support a conviction. [Citation.] The doctrine of law of the case is an

equitable remedy whose purpose is to prevent the government from arguing on appeal a

position which it abandoned below. [Citation.]” (U.S. v. Williams (10th Cir. 2004) 376

F.3d 1048, 1051; see also State v. Hickman (1998) 954 P.2d 900, 901 [“elements in the

‘to convict’ instruction not objected to become the ‘law of the case’ which the State must

prove beyond a reasonable doubt to prevail. By acquiescing to jury instructions which

included venue as a necessary element to convict, even though it really is not an element,

the State assumed the burden of proving venue; it however failed to do so”].)

       Defendant acknowledges there are no California cases that apply law of the case in

this manner. The principle is a species of forfeiture or invited error. However, we will

not address the issue because, regardless of what we call it, the principle is not relevant

here. Defendant’s contrary assertion notwithstanding, the prosecutor objected to the

pimping jury instruction during trial, albeit belatedly. Therefore, this case does not

involve forfeiture or invited error. The issue in this appeal is whether the trial court erred

when it responded to the jury’s question, after it had declined to reinstruct the jury on the

elements of the crime of pimping and also denied defendant’s request to reargue the

evidence based on the corrected jury instruction.




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                                         C. Analysis

       As previously recounted, when the prosecutor pointed out the error in the pimping

jury instruction, the trial court did not correct the instruction and reinstruct the jury.

Instead, the court directed the prosecutor to resolve the issue in final closing. As a result,

the prosecutor told the jury the law was other than that set out in the jury instruction and

argued by defense counsel. The prosecutor argued the law only required her to prove

defendant knew one, not all, of the named women was a prostitute and derived income

from that prostitute. The trial court, in our view, erred by failing to reinstruct the jury

once the prosecutor identified the error in the instruction. It is the trial court’s

responsibility to instruct the jury on the pertinent law. (See § 1093, subd. (f).) Therefore,

the court should have corrected the erroneous pimping jury instruction by instructing the

jury according to the correct legal principle.

       Because the trial court did not correct the jury instruction, the jurors were left with

an instruction framed in the conjunctive and, therefore, incorrect. When they later asked

the trial court for direction on the issue, the court was required to clarify the jury’s

confusion, which in this case meant the trial court was required to correct the error in the

jury instruction on pimping. (See People v. Smithey (1999) 20 Cal.4th 936, 985; see also

People v. Giardino (2000) 82 Cal.App.4th 454, 465 [Fourth Dist., Div. Two] [“under

section 1138 the trial court must attempt ‘to clear up any instructional confusion

expressed by the jury’”].) The trial court’s response to the jury’s question in effect gave

the jury a different statement of the law pertinent to the crime of pimping than the one

included in its instruction and that defendant had argued in closing.


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       Defendant has a constitutional and statutory right to present a closing argument.

(Herring v. New York (1975) 422 U.S. 853, 865; § 1093, subd. (e).) As a matter of

statutory law, the trial court is to decide which instructions to give before the

commencement of argument. (§ 1093.5.) The reason for this rule is to give the parties

the opportunity to intelligently and persuasively argue the case to the jury. (People v.

Kronemyer (1987) 189 Cal.App.3d 314, 341.) “Material modification and departure from

agreed upon instructions may deprive a defendant of a fair trial.” (Ibid.) However, there

is no error where a modification is de minimis and it neither changes the thrust of the

instruction nor prejudices the defense argument. (Ibid.)

       Defendant argues he was denied his constitutional right to the effective assistance

of counsel and to a fair trial because, in answering the jury’s question, the trial court

effectively materially modified the jury instruction on the elements of the crime of

pimping. Defendant contends, at the very least, the trial court should have granted the

request to reopen closing argument, and failure to do so deprived him of his right to a fair

trial. We agree.

       “To prevent unfair prejudice, if a supplemental instruction introduces new matter

for consideration by the jury, the parties should be given an opportunity to argue the

theory. [Citations.] ‘The Sixth and Fourteenth Amendments to the United States

Constitution and article I, section 15 of the California Constitution guarantee a criminal

defendant the right to the effective assistance of counsel at all critical stages of the

proceedings.’ [Citation.] ‘“To effectuate the constitutional rights to counsel and to due

process of law, an accused must . . . have a reasonable opportunity to prepare a defense


                                              11
and respond to the charges.” [Citation.]’ [Citation.] If supplemental or curative

instructions are given by the trial court without granting defense counsel an opportunity

to object, and if necessary, offer additional legal argument to respond to the substance of

the new instructions, the spirit of section 1093.5 and the defendant’s right to a fair trial

may be compromised. [Citations.]” (People v. Ardoin (2011) 196 Cal.App.4th 102,

129.)

        The trial court denied defendant his due process right to a fair trial by in effect

reinstructing the jury during their deliberations on the elements of the crime of pimping.

Defense counsel had based a significant part of the defense on CALCRIM No. 1150, as

given by the trial court and discussed by the prosecutor during her initial closing

argument. The trial court then undermined that argument by telling the jury in response

to their question they could find defendant guilty based on the acts of only one of the

named women. Although defense counsel had also argued defendant’s general lack of

knowledge that prostitution was occurring, and the lack of evidence to show defendant

derived income from such conduct, they did not review the evidence, or lack thereof,

with respect to each of the women named in the pimping jury instruction. Under these

circumstances, we are not able to say the trial court’s modification of CALCRIM

No. 1150 was de minimus. Instead, it went to the heart of defendant’s closing argument

and the credibility of his attorneys. As such, the error requires reversal of the judgment.

(See, e.g., U.S. v. Gaskins (9th Cir. 1988) 849 F.2d 454, 459 [defense counsel should

have been allowed to address new aiding and abetting instruction because “arguments

based on convicting a defendant as a principal or convicting a defendant as an aider and


                                              12
abettor are based on two conceptually different theories”]; U.S. v. Oliver (6th Cir. 1985)

766 F.2d 252, 254 [during closing argument in prosecution for making threats by U.S.

mail, “defense counsel expressly tailored his closing argument upon the alleged failure of

the government to prove a critical element of the crime, i.e., that the letter had in fact

been delivered, as directed by the original jury charge. When the court subsequently

omitted that element as a prerequisite for conviction [saying defendant only had to have

deposited the letter for delivery], the defense attorney was left with the impossible task of

rearguing to the jury points which he had conceded during his first argument”]; People v.

Sanchez (1978) 83 Cal.App.3d Supp. 1, 5-7 [during the defense closing argument in a

sexual battery trial, the court informed the jury “lack of consent” was not an element of

the crime].)

       In short, the trial court rendered defendant’s trial fundamentally unfair by, in

effect, modifying the jury instruction on the elements of the crime of pimping after

defendant had relied on the instruction in his closing argument. We cannot say the errors

that occurred in this case are harmless beyond a reasonable doubt. (Chapman v.

California (1967) 386 U.S. 18, 24.) We have no alternative but to reverse the judgment

and remand this matter to the trial court for a new trial.




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                                       DISPOSITION

         The judgment is reversed, and the matter is remanded to the trial court for a new

trial.

         NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                Acting P. J.
We concur:


KING
                            J.


CODRINGTON
                            J.




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