California Cases April 18, 2022: People v. Vaughn

Case Description

Certified for Partial Publication.

Jennifer Peabody, Los Angeles; Helen S. Irza, under appointment by the Court of Appeal, for Defendant and Appellant Aaron James Vaughn.

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant Victor Wilkins.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Daniel Rogers, Lise Jacobson, and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RAMIREZ, P. J.

[77 Cal.App.5th 614]

In an exhaustive 19-day jury trial, after 17 witnesses testified and 97 exhibits were admitted, defendants Victor Wilkins and Aaron

[77 Cal.App.5th 615]

James Vaughn were found guilty of human trafficking and multiple counts of pimping and pandering; some counts involved a minor victim.

In very brief outline, a San Bernardino police officer stopped an apparent prostitute for indecent exposure. She indicated that she was 17 years old, and that she was walking the street with a second prostitute. She had a keycard to Room 112 in a nearby motel. Room 112 was rented to Wilkins; he had checked in with Vaughn, who had rented Room 109. At trial, the prostitute testified that Wilkins was her pimp, and Vaughn was the second prostitute's pimp. This was corroborated by text messages and photos from the cellphones of Wilkins, Vaughn, and the prostitute. This evidence also showed that Wilkins had pimped (or attempted to pimp) two additional prostitutes.

In this appeal, Wilkins and/or Vaughn contend:

(1) San Bernardino County was not the proper venue for some counts.

(2) The trial court erred by denying defendants' motions for severance.

(3) The trial court erred by denying Wilkins's motion to suppress the evidence obtained as a result of a warrantless entry into his motel room.

(4) The trial court erred by denying defendants' motion for a mistrial after one prospective juror said, during voir dire, that someone found guilty of the charged crimes should be publicly executed.

(5) There was insufficient evidence that Vaughn knew that the minor victim was underage to support his convictions for human trafficking of a minor and pimping a minor.

(6) The trial court abused its discretion by denying Wilkins probation and by imposing the upper term for human trafficking of a minor.

(7) The trial court violated Penal Code section 654 by imposing a separate and unstayed sentences for both pimping and pandering of the same victim.

We agree that the sentences violated section 654. However, we find no other error, or, at least, no other prejudicial error that has been preserved for appeal. Accordingly, we will modify the sentences and we will affirm the judgments as modified.

[77 Cal.App.5th 616]

I

II

STATEMENT OF THE CASE

In a jury trial, Vaughn was found guilty:

(1) With respect to Jane, of human trafficking of a minor (§ 236.1, subd. (c)(1)), with an enhancement for a prior human trafficking conviction (§ 236.4, subd. (c)); and pimping a minor 16 or older (§ 266h, subd. (b)(1)).

(2) With respect to Molly, of pimping (§ 266h, subd. (a)) and pandering (§ 266i, subd. (a)(1)).

Wilkins was found guilty:

(1) With respect to Jane, of human trafficking of a minor, pimping of a minor 16 or older, and pandering of a minor 16 or older (§ 266i, subd. (b)(1)).

(2) With respect to Molly, of pimping and pandering.

(3) With respect to Selena, of pandering.

(4) With respect to Ebony, of attempted pimping (§§ 266h, subd. (a), 664) and pandering.

Vaughn was sentenced to a total of 19 years 8 months in prison. Wilkins was sentenced to a total of 18 years in prison.

[292 Cal.Rptr.3d 655]

III

VENUE

Defendants contend that San Bernardino County was not the proper venue for some counts. The People respond that defendants forfeited this contention.

[77 Cal.App.5th 617]

A. Additional Procedural Background.

The information alleged that all of the counts were committed in San Bernardino County.

Defendants moved to set aside the information. (§ 995.) In the motion, they argued that there was insufficient evidence of certain counts. However, they also argued, citing the general criminal venue statute (§ 777), that the prosecution had introduced insufficient evidence at the preliminary hearing that any of the crimes were committed in San Bernardino County. The prosecution did not file an opposition.

The trial court denied the motion. Its ruling did not expressly address the venue issue. Defendants did not file a writ petition seeking review of this ruling.

B. Forfeiture.

A California court has subject matter jurisdiction to try any crime committed in California. ( People v. Simon (2001) 25 Cal.4th 1082, 1096, 108 Cal.Rptr.2d 385, 25 P.3d 598.) Regrettably, some California statutes use the phrase "jurisdictional territory" to refer to venue. (E.g., § 691, subd. (b).) However, " ‘ "[v]enue is not jurisdictional in the fundamental sense ...." ’ [Citation.]" ( People v. Peoples (2016) 62 Cal.4th 718, 791, 198 Cal.Rptr.3d 365, 365 P.3d 230, italics omitted.)

As a general rule, under section 777, the proper venue for trial is the county in which the crime was committed. (See also § 691, subd. (b).) This general rule, however, is subject to assorted statutory exceptions.

One such exception applies to a prosecution for human trafficking, pimping or pandering. Section 784.7, subdivision (c) provides: "If more than one violation of Section 236.1, 266h, or 266i occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing pursuant to Section 954 .... At the Section 954 hearing, the prosecution shall present written evidence that all district attorneys in counties with jurisdiction of the offenses agree to the venue. Charged offenses from jurisdictions where there is not a written agreement from the district attorney shall be returned to that jurisdiction."

" ‘[A] defendant ... forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial.’ [Citation.]" ( People v. Posey (2004) 32 Cal.4th 193, 200, 8 Cal.Rptr.3d 551, 82 P.3d 755.)

[77 Cal.App.5th 618]

"[I]n felony proceedings a claim of improper venue properly may be raised by demurrer (if the defect in venue appears on the face of the accusatory pleading), by a challenge to venue specifically raised before the magistrate at the preliminary hearing, or by a motion under section 995 challenging the validity of an indictment or information. [Citations.]" ( People v. Simon, supra , 25 Cal.4th at pp. 1106-1107, 108 Cal.Rptr.2d 385, 25 P.3d 598.)

Here, defendants specifically raised an improper venue claim in their section 995 motion. The People fault the motion because it cited only section 777; it did not cite section 784.7, and it did not argue that section 784.7 did not apply. The information, however, alleged — evidently

[292 Cal.Rptr.3d 656]

pursuant to section 777 — that each crime was committed in San Bernardino County. Defendants quite properly argued that the evidence at the preliminary hearing did not support these allegations. "The prosecution has the burden of proving the facts supporting venue by a preponderance of the evidence .... [Citation.]" ( People v. Thomas (2012) 53 Cal.4th 1276, 1283, 140 Cal.Rptr.3d 184, 274 P.3d 1170.) Defendants had no burden other than to raise the issue and put the prosecution to its proof.

The People also argue that defendants forfeited the issue by failing to file a prompt writ petition.

Certainly defendants could have filed a writ petition. They could readily have shown that an appeal would not be an adequate remedy, because it would bring them relief, if at all, only after the anxiety, effort, and expense of a trial that would then have to be repeated elsewhere. However, this does not mean that they had to file a writ petition.

As a general rule, the erroneous denial of a section 995 motion can be raised by way of a writ petition. (§ 999a.) As here, an appeal is not an adequate remedy, because it is available only after the defendant has endured a potentially improper trial. Nevertheless, the issue can also be raised on appeal. ( People v. Flores (1974) 12 Cal.3d 85, 89, fn. 2, 115 Cal.Rptr. 225, 524 P.2d 353.)

Similarly, an order denying a change of venue can be challenged in either a pretrial writ proceeding or a posttrial appeal, at the defendant's option. ( People v. Tidwell (1970) 3 Cal.3d 62, 68, 89 Cal.Rptr. 44, 473 P.2d 748 ["defendant's failure to seek review by mandate prior to his trial in no way limits his right to relief" on appeal].) This is true even though a writ petition is the only way to prevent the trial from occurring in the wrong place.

The People cite People v. Betts (2005) 34 Cal.4th 1039, 23 Cal.Rptr.3d 138, 103 P.3d 883, which held that whether a California court has subject matter

[77 Cal.App.5th 619]

jurisdiction to try a crime committed, at least in part, in another state must be raised before trial. ( Id. at pp. 1046-1054, 23 Cal.Rptr.3d 138, 103 P.3d 883.) As relevant here, it said: " ‘ ... If only a jury could determine subject matter jurisdiction, a defendant would always be put through the expense, anxiety, and uncertainty of a trial and the only mechanism to challenge jurisdiction would be an appeal after the conclusion of trial.’ By contrast, if the issue can be resolved by the court before trial, the defendant will have the opportunity to seek immediate review through a writ proceeding. " ( Id. at pp. 1051-1052, 23 Cal.Rptr.3d 138, 103 P.3d 883, italics added.)

Betts does not apply here directly, because it involved subject matter jurisdiction rather than venue (although it recognized that the two can be analogous, People v. Betts, supra , 34 Cal.4th at p. 1051, 23 Cal.Rptr.3d 138, 103 P.3d 883 ). More to the point, however, it did not say that the defendant could seek review only through a writ petition. It merely said a defendant has "the opportunity" to seek review through a writ petition, and will typically prefer to do so.

People v. Simon, supra , 25 Cal.4th 1082, 108 Cal.Rptr.2d 385, 25 P.3d 598 provides somewhat stronger support for the People's position. There, the Supreme Court held that an objection to venue must be raised before trial. ( Id. at pp. 1107-1108, 108 Cal.Rptr.2d 385, 25 P.3d 598.) It explained — in part — that "the right to be tried in a statutorily designated venue is intended, from the perspective of an accused, as a safeguard against being required to stand trial in an unrelated and

[292 Cal.Rptr.3d 657]

potentially burdensome distant location. This protection can be meaningfully afforded to a defendant only if he or she objects to venue before being required to proceed to trial in the allegedly improper locale. If a defendant's timely challenge to venue is sustained, the trial can be conducted in the proper location, before the parties, the witnesses, and the court have incurred the burden and expense of a trial in an unauthorized venue." ( Id. at pp. 1103-1104, 108 Cal.Rptr.2d 385, 25 P.3d 598.)

It is arguable that, for the same reasons, the denial of an objection to venue must be reviewed, if at all, before trial. However, that argument is flawed. The fact that a pretrial objection to venue is necessary to prevent a trial in the wrong place was not the only reason the Supreme Court gave for its holding in Simon. It also noted that: (1) in analogous situations — i.e., misdemeanor prosecutions and civil actions — there are statutes that require an objection to venue to be made before trial ( People v. Simon, supra , 25 Cal.4th at pp. 1101-1103, 108 Cal.Rptr.2d 385, 25 P.3d 598 ); and (2) allowing the defendant to object to venue during trial or for the first time on appeal would enable " ‘sandbagging.’ " ( Id. at p. 1104, 108 Cal.Rptr.2d 385, 25 P.3d 598.)

There are no similar concerns here. As already discussed, in analogous situations — the denial of a section 995 motion or the denial of a motion to change venue — a writ petition is not required. Moreover, under Simon itself, the defendant is required to object to venue before trial. Thus, no sandbagging is possible; if, as here, the prosecution insists on going to trial in the

[77 Cal.App.5th 620]

challenged venue, it knowingly takes the risk that the conviction may be reversed on appeal as a result.

We therefore conclude that defendants have not forfeited their contention that the venue for most counts was improper.

C. Prejudice.

The fact that defendants have raised their venue challenge on appeal, rather than by writ, does have one crucial consequence. If they had raised the issue by writ, they would not have had to show prejudice. Because they raised it on appeal, however, they must. (See People v. Mena (2012) 54 Cal.4th 146, 156, 141 Cal.Rptr.3d 469, 277 P.3d 160 [erroneous denial of motion to suppress must be shown to be prejudicial if raised on appeal, though not if by writ]; People v. Vasquez (2006) 39 Cal.4th 47, 68-69, 45 Cal.Rptr.3d 372, 137 P.3d 199 [erroneous denial of motion to recuse prosecutor must be shown to be prejudicial if raised on appeal, though not if by writ]; People v. Epps (2001) 25 Cal.4th 19, 30, 104 Cal.Rptr.2d 572, 18 P.3d 2 [erroneous denial of a jury trial must be shown to be prejudicial if raised on appeal, though not if by writ]; People v. Martinez (2000) 22 Cal.4th 750, 769, 94 Cal.Rptr.2d 381, 996 P.2d 32 [erroneous denial of motion to dismiss based on violation of statutory right to a speedy trial must be shown to be prejudicial if raised on appeal, though not if by writ]; People v. Williams (1989) 48 Cal.3d 1112, 1125-1126, 259 Cal.Rptr. 473, 774 P.2d 146 [erroneous denial of motion for change of venue must be shown to be prejudicial if raised on appeal, though not if by writ]; see generally Cal. Const., art. VI, § 13 ; § 1258.)

Defendants assert that a judgment entered in the wrong venue is "void." Not so. As already noted, the Supreme Court has held that venue is not jurisdictional in the fundamental sense. Defendants cite People v. Betts, supra , 34 Cal.4th 1039, 23 Cal.Rptr.3d 138, 103 P.3d 883. We repeat, however, that Betts dealt with subject matter jurisdiction, not venue. They also cite

[292 Cal.Rptr.3d 658]

Taliaferro v. County of Contra Costa (1960) 182 Cal.App.2d 587, 6 Cal.Rptr. 231. However, the only discussion of voidness in that case related to the limited jurisdiction of municipal courts. ( Id. at p. 591, 6 Cal.Rptr. 231.) If it could be read any more broadly, it would conflict with the Supreme Court's subsequent holdings.

Accordingly, defendants must show that holding the trial in an improper venue was prejudicial under the state constitutional harmless error standard — i.e., that it is reasonably probable that, in the absence of the error, they would have enjoyed a more favorable result. ( People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) This they cannot do. The mere fact that they were tried in the wrong place is not necessarily prejudicial. Indeed, as they

[77 Cal.App.5th 621]

argue that the charged acts took place in some six or seven different counties, arguably they benefited from having all of the counts tried in one place.

Defendants therefore assert that a trial in an improper venue violates their federal constitutional rights under the vicinage clause of the Sixth Amendment. Apparently their point is that the error is subject to the higher, "beyond a reasonable doubt" federal harmless error standard.

We may assume, without deciding, that defendants' venue objection was sufficient to preserve their present vicinage contention. Even if so, our Supreme Court has held that the federal vicinage clause does not apply to the states. ( Price v. Superior Court (2001) 25 Cal.4th 1046, 1065, 108 Cal.Rptr.2d 409, 25 P.3d 618.) And, as defendants concede, the United States Supreme Court has never held otherwise.

Defendants protest that "the rule of stare decisis only applies where a state statute or provision of the state Constitution is at issue." Again, not so. "[I]n the absence of a subsequent contrary decision of the United States Supreme Court, we are bound by the California Supreme Court's holding on [an] issue of federal law ...." ( Tanguilig v. Bloomingdale's, Inc. (2016) 5 Cal.App.5th 665, 673, 210 Cal.Rptr.3d 352.)

While there is a corresponding vicinage right under the state Constitution ( Cal. Const., art. I, § 16 ; People v. Hill (1992) 3 Cal.4th 959, 984, 13 Cal.Rptr.2d 475, 839 P.2d 984, overruled on other grounds in Price v. Superior Court, supra , 25 Cal.4th at p. 1069, fn. 13, 108 Cal.Rptr.2d 409, 25 P.3d 618 ), the violation of a state constitutional right does not require reversal unless the defendant can show prejudice. ( Cal. Const., art. VI, § 13.) As already discussed, defendants cannot.

Finally, defendants argue that the prosecution's violation of the venue statutes — and, in particular, its failure to comply with the procedural requirements of section 784.7 — necessarily violated due process. However, a " ‘mere error of state law’ is not a denial of due process. [Citation.] If the contrary were true, then ‘every erroneous decision by a state court on state law would come [the United States Supreme Court] as a federal constitutional question.’ [Citations.]" ( Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21, 102 S.Ct. 1558, 71 L.Ed.2d 783.) As defendants cannot even show prejudice, a fortiori they cannot show that the trial was fundamentally unfair so as to violate due process.

IV-VI

[77 Cal.App.5th 622]

VII

THE SUFFICIENCY OF THE EVIDENCE THAT VAUGHN KNEW JANE WAS A MINOR

Vaughn contends that there was insufficient evidence that he knew Jane was underage

[292 Cal.Rptr.3d 659]

to support his convictions for human trafficking of a minor and pimping a minor.

"Mistake of fact as to the age of a victim ... who is a minor at the time of the commission of the offense is not a defense" to human trafficking of a minor. (§ 236.1, subd. (f).) Likewise, "a good faith belief the minor is 18 [or over] is not a defense to pimping ... a minor." ( People v. Branch (2010) 184 Cal.App.4th 516, 520-522, 109 Cal.Rptr.3d 412, capitalization altered.)

Vaughn argues, however, that he was guilty of crimes against Jane, if at all, only as aider and abettor. "Aiding and abetting liability requires ‘the intent or purpose of committing, encouraging, or facilitating the commission of the offense. ’ [Citation.]" ( People v. Hardy (2018) 5 Cal.5th 56, 96, 233 Cal.Rptr.3d 378, 418 P.3d 309, italics added.) Vaughn therefore argues that, while Wilkins, as the direct perpetrator, could be guilty even if he did not know that Jane was underage, he, Vaughn, as the aider and abettor, did have to know that Jane was underage.

The People did not initially dispute the legal validity of this argument. Instead, they argued that there was substantial evidence that Vaughn knew that Jane was a minor, because he had previously been convicted of sex trafficking of minors, and because he spent a significant amount of time in the car with her. Vaughn's past experience, however, was with 14, 15, and 16-year-olds. Jane was 17 years 3 months old. There are a number of photos of her in the record. She was neither petite nor undeveloped; she appeared to be full-grown. And the People point to nothing about Jane's behavior or her interactions with defendants that would have screamed "minor." Thus, we agree with Vaughn that there was no substantial evidence that he knew Jane was a minor.

The People also argued that Vaughn was a perpetrator of both offenses, because he tried to persuade Jane to continue to work as a prostitute for Wilkins. In Los Angeles, when Jane wanted to leave Wilkins, both Wilkins and Vaughn confronted her; Vaughn said that Wilkins "was a good person" who "was there for [her] best interest." Arguably, this was sufficient evidence

[77 Cal.App.5th 623]

of an attempt to persuade Jane "to engage in a commercial sex act," and thus of the crime of human trafficking. (§ 236.1, subd. (c).)

As Vaughn notes, however, the prosecutor made an election to rely solely on an aiding and abetting theory. In closing argument, she said that, in the counts involving Molly, Vaughn was a "direct perpetrator"; however, the counts involving Jane were "based upon the aiding and abetting theory." As to count 4 (human trafficking), she said, "the question ... is did Vaughn do anything in his words or conduct in which he aided and abetted Wilkins commission of causing Jane Doe to engage in a commercial sex act?" "Then going to count 5 is the other count Vaughn is charged as aider and abettor for the pimping of a minor age 16 or older."

"[W]hen the prosecution has made an election, under circumstances where a unanimity instruction would otherwise have been required, then we, too, are bound by that election. Thus, if the defendant raises a substantial evidence challenge,

[292 Cal.Rptr.3d 660]

our review is limited to whether there is sufficient evidence to support a conviction based exclusively on the act elected by the prosecution. [Citation.]" ( People v. Brown (2017) 11 Cal.App.5th 332, 341-342, 217 Cal.Rptr.3d 589.) Therefore, we consider only evidence of Vaughn's guilt as an aider and abettor.

However, we reject the legal premise of Vaughn's argument — that because he was charged as an aider and abettor, there had to be evidence that he knew Jane was a minor.

We have found almost no California case law on whether an aider and abettor must have knowledge of an element of a crime when the perpetrator need not. This issue could arise in any number of situations. For example, possession of a machine gun does not require knowledge of the nature of the weapon ( People v. May (2020) 47 Cal.App.5th 1001, 1006-1009, 261 Cal.Rptr.3d 365 ); what about aiding and abetting the possession of a machine gun? Robbery does not require the intent to use force or fear; it can be committed by accidentally striking the victim during the taking. ( People v. Anderson (2011) 51 Cal.4th 989, 994-996, 125 Cal.Rptr.3d 408, 252 P.3d 968.) Can one aid and abet such a robbery? And other offenses, like those here, require that the victim be a minor but do not require knowledge that the

[77 Cal.App.5th 624]

victim is a minor. (E.g., § 288 [lewd and lascivious act on a child under 14]; see People v. Olsen (1984) 36 Cal.3d 638, 647, 205 Cal.Rptr. 492, 685 P.2d 52 ["a reasonable mistake as to the victim's age is not a defense to a section 288 charge."].)

Rather than seek a broad principle applicable to all such cases, we decide this case on narrower grounds. We look to the statutes defining the crimes charged in this case.

As already mentioned, the statute defining human trafficking of a minor declares: "Mistake of fact as to the age of a victim of human trafficking who is a minor at the time of the commission of the offense is not a defense to a criminal prosecution under this section." (§ 236.1, subd. (f).) A perpetrator and an aider and abettor are both principals in the same crime. (§ 31.) A person charged with human trafficking of a minor, as an aider and abettor, is subject to "a criminal prosecution under" section 236.1. Thus, the plain language of the statute eliminates a mistake as to the victim's age as a defense for both a perpetrator and an aider and abettor.

While the statute is unambiguous on this point, its legislative history confirms our reading of it. In 2012, Proposition 35 substantially revised section 236.1. Among other things, it created the new crime of human trafficking of a minor (§ 236.1, subd. (c)) and enacted the provision that a mistake of fact as to age is not a defense. The ballot argument in favor of the measure stressed the protection of children. It said, "Many sex trafficking victims are vulnerable children." (Voter Information Guide, Gen. Elec. (Nov. 6, 2012) argument in favor of Prop. 35, p. 46.) "Many victims are girls as young as 12." ( Ibid. ) "[W]e need Prop. 35 to protect children from

[292 Cal.Rptr.3d 661]

exploitation. ( Ibid. ) "Prop. 35 holds human traffickers accountable for their horrendous crimes." ( Ibid. , italics omitted.) This emphasis on making human traffickers accountable for sexual exploitation of children suggests that the electorate did not intend to give aiders and abettors a defense that it denied to perpetrators.

Vaughn argues that "abet," as used in section 31, requires scienter as to each element of the charged offense. "Aiding and abetting liability requires ‘the intent or purpose of committing, encouraging, or facilitating the commission of the offense.’ [Citations.]" ( People v. Hardy, supra , 5 Cal.5th at p. 96, 233 Cal.Rptr.3d 378, 418 P.3d 309.) However, the bare wording of section 31 does not always require the specific intent to commit the exact offense that the perpetrator actually commits, as

[77 Cal.App.5th 625]

shown by the natural and probable consequences doctrine. (See generally People v. Prettyman (1996) 14 Cal.4th 248, 260-263, 58 Cal.Rptr.2d 827, 926 P.2d 1013.)

We recognize that, "outside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that required of the direct perpetrator." ( People v. McCoy (2001) 25 Cal.4th 1111, 1118, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) "[T]he aider/abettor's guilt is based on the combined acts of all the principals and on the aider/abettor's own knowledge and intent." ( People v. Amezcua and Flores (2019) 6 Cal.5th 886, 917, 243 Cal.Rptr.3d 842, 434 P.3d 1121.) We are not violating this principle; under section 236.1, the direct perpetrator does not have to know the victim's age, and neither does the aider and abettor. But even assuming section 236.1 is inconsistent with section 31, then, to that extent, section 236.1 is the more recent statute and must take precedence. (See People v. Bustamante (1997) 57 Cal.App.4th 693, 699, 67 Cal.Rptr.2d 295.) Section 236.1, in combination with section 31, does at least require the aider and abettor to intend to aid the commission of pimping, pandering, or another enumerated offense. Thus, it does not impose criminal liability on an aider and abettor without any mens rea at all. (See State v. Bowman (N.C. Ct. App. 2008) 188 N.C.App. 635, 650, 656 S.E.2d 638 ["Although statutory rape is a strict liability crime, aiding and abetting statutory rape is not."]; 2 LaFave, Substantive Criminal Law (3d ed. 2020) General Principles, § 13.2(f) [subject to statutory exceptions, aider and abettor is not guilty of a strict liability offense if he or she acts without knowledge of the facts making the principal's conduct a crime].)

With respect to pimping, the analysis is a little different, although it leads to the same conclusion.

Section 266h, subdivision (a) provides that "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, 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 ... and shall be punishable by imprisonment in the state prison for three, four, or six years." (§ 266h, subd. (a).)

Section 266h, subdivision (b) then provides that a person who does exactly the same thing, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows:

[77 Cal.App.5th 626]

"(1) If the person engaged in prostitution is a minor 16 years of age or older, the offense is punishable by imprisonment in

[292 Cal.Rptr.3d 662]

the state prison for three, four, or six years.

"(2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years." (§ 266h, subd. (b).)

People v. Branch, supra , 184 Cal.App.4th 516, 109 Cal.Rptr.3d 412 held that a good faith belief that the victim is 18 or older is not a defense to either pimping or attempted pimping of a minor. ( Id. at pp. 520-523, 109 Cal.Rptr.3d 412.) It reasoned that the "defendant's conduct would be criminal regardless of [the victim]'s age." ( Id. at p. 522, 109 Cal.Rptr.3d 412.) "[T]he criminal intent for the crimes of attempted pimping ... of a minor is the attempt to pimp ...; the age of the victim only affects the severity of the sentence, not the criminality of the conduct." ( Ibid. )

The same reasoning applies to aiding and abetting. Pimping is a general intent crime. ( People v. McNulty (1988) 202 Cal.App.3d 624, 631, 249 Cal.Rptr. 22.) Aiding and abetting, however, requires specific intent. ( People v. Mendoza (1998) 18 Cal.4th 1114, 1131, 77 Cal.Rptr.2d 428, 959 P.2d 735.) "To be culpable, an aider and abettor must intend not only the act of encouraging and facilitating but also the additional criminal act the perpetrator commits." ( Id. at p. 1129, 77 Cal.Rptr.2d 428, 959 P.2d 735.)

Pursuant to Branch , the only criminal intent necessary to aid and abet pimping of a minor is the intent that the perpetrator commit pimping. The aider and abettor need not intend that the perpetrator commit pimping specifically of a minor. "[T]he age of the victim only affects the severity of the sentence, not the criminality of the conduct." ( People v. Branch, supra , 184 Cal.App.4th at p. 522, 109 Cal.Rptr.3d 412.)

As the People aptly note, "in some circumstances, severely enhanced penalties may be imposed absent the accused's knowledge of all the facts bringing his conduct within the prohibition of the statute." ( People v. Coria (1999) 21 Cal.4th 868, 879, 89 Cal.Rptr.2d 650, 985 P.2d 970 ; e.g., People v. Ervin (1997) 53 Cal.App.4th 1323, 1330-1331, 62 Cal.Rptr.2d 231 [first degree robbery, based on victim's use of ATM, does not require knowledge that victim used ATM]; People v. Magpuso (1994) 23 Cal.App.4th 112, 115, 28 Cal.Rptr.2d 206 [aggravated punishment for kidnapping child under 14 does not require knowledge of child's age]; People v. Deleon (1982) 138 Cal.App.3d 602, 606-607, 188 Cal.Rptr. 63 [great taking enhancement does not require knowledge of value of loot].) People v. Price (1989) 210 Cal.App.3d 1183, 259 Cal.Rptr. 282, overruled on other grounds by People v. Meza (1995) 38 Cal.App.4th 1741, 1748-1749, 45 Cal.Rptr.2d 844, specifically held that a weight enhancement does not require knowledge of weight

[77 Cal.App.5th 627]

of drugs, regardless of whether the defendant is a perpetrator or aider and abettor of the underlying crime. ( Price, supra , at pp. 1193-1194, 259 Cal.Rptr. 282.)

Vaughn argues that, if he can be guilty of aiding and abetting without any knowledge of the victim's age, then the relevant statutes are unconstitutionally vague. He is confusing vagueness with strict liability as to a single element. " ‘[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. [Citations.]’ [Citation.]" ( People v. Redd (2010) 48 Cal.4th 691, 717, 108 Cal.Rptr.3d 192, 229 P.3d 101, italics omitted.) As to a perpetrator,

[292 Cal.Rptr.3d 663]

the pimping and pandering statutes are not vague. ( People v. Campbell (2020) 51 Cal.App.5th 463, 491-493, 265 Cal.Rptr.3d 136 [pandering]; People v. Grant (2011) 195 Cal.App.4th 107, 115, 123 Cal.Rptr.3d 840 [pimping].) However, the perpetrator must shoulder the risk that the prostitute is underage. The same is true of an aider and abettor: The aider and abettor must intend that the perpetrator commit pimping or pandering but must shoulder the same risk. We repeat, the aider and abettor cannot be convicted without any criminal intent at all.

We therefore conclude that Vaughn could be guilty of both human trafficking of a minor and pimping a minor, as an aider and abettor, even if he did not know that Jane was a minor.

VIII-X

XI

DISPOSITION

Wilkins's sentence on count 7 (pandering of Molly) is stayed; as a result, his total sentence is reduced from 18 years to 16 years 8 months. This stay will become permanent once Wilkins has served the remainder of his sentence.

Vaughn's sentence on count 9 (pandering of Molly) is stayed; as a result, his total sentence is reduced from 19 years 8 months to 18 years 4 months. This stay will become permanent once Vaughn has served the remainder of his sentence.

[77 Cal.App.5th 628]

The judgments, as thus modified, are affirmed. The superior court clerk is directed to prepare amended sentencing minute orders and amended abstracts of judgment and to forward a certified copy of the amended abstracts to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)

We concur:

McKINSTER, J.

FIELDS, J.