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Name: People v. Brown
Case #: C078620
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/10/2017

Proposition 35, the Californians Against Sexual Exploitation Act, does not prohibit treating uncharged trafficking victim as an uncharged coconspirator under coconspirator exception to the hearsay rule. Defendant was accused of pimping minors, including B. and D. During trial, the jury heard evidence that D. was a 14-year-old prostitute who helped defendant recruit 17-year-old prostitute B. D. did not testify but her statements and texts to defendant were introduced under the coconspirator exception to the hearsay rule (Evid. Code, § 1223). Defendant was convicted of two counts of human trafficking (Pen. Code, § 236.1, subd. (c)), one for B. (count one) and one for D. (count two). On appeal, defendant argued that because D. was immune from prosecution for trafficking under Proposition 35, she could not be a coconspirator, so her statements were inadmissible hearsay as to count two. Held: Affirmed. Under Evidence Code section 1161, subdivision (a), enacted by Proposition 35, evidence that a human trafficking victim engaged in a commercial sex act is inadmissible to prove “the victim’s criminal liability for any conduct related to that activity.” However, while Proposition 35 strengthened protections for human trafficking victims by limiting the evidence that can be used against them, it does not preclude them from being treated as uncharged coconspirators for purposes of the coconspirator exception to the hearsay rule. Application of the coconspirator exception, which permits introduction of statements made while participating in a conspiracy, does not depend on whether the coconspirator is prosecutable. Thus, even if D. is immune from prosecution, she can still be treated as an uncharged coconspirator. (See People v. Bogan (2007) 152 Cal.App.4th 1070.) The court also disagreed with defendant’s argument that D.’s statements violated his confrontation rights because he did not show that any of D.’s statements were testimonial.

The overlapping provisions of the human trafficking statute (Pen. Code, § 236.1) and the pandering statute (Pen. Code, § 266i) do not render the human trafficking statute vague. A penal statute must be drafted with sufficient clarity to give fair notice of what conduct is proscribed. Here, defendant was convicted under section 236.1, which prohibits trafficking of minors. He argued that because section 236.1 incorporates the definition of pandering (Pen. Code, § 266i), it fails to give an ordinary person notice of what conduct is “human trafficking” as opposed to “pandering,” which is punished less harshly. The court agreed that, as charged in this case, defendant might have been subject to either of two statutory schemes carrying different penalties. However, the uncertainty created by the two statutes is no greater than that resulting from a single statute authorizing alternative punishments. “So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” (United States v. Batchelder (1979) 442 U.S. 114.) Here, both section 236.1 and 266i clearly advised defendant of the conduct that was criminal and the possible penalties each provided, so there is no vagueness about what is prohibited under either statute. The court distinguished Johnson v. United States (2015) 576 U.S.__[192 L.Ed.2d 569].

Defendant was not prejudiced by the exclusion of additional evidence regarding past prostitution by the victims. Evidence Code section 1161, subdivision (b) provides that evidence of the sexual history of a victim of human trafficking is inadmissible to attack the credibility or impeach the victim’s character in a criminal proceeding. While defendant argued this provision violated his rights to due process, confrontation, and to present a defense, it was undisputed in this case that D. and B. were prostitutes before the charged offenses occurred, and defendant failed to show how additional evidence of their prior prostitution would have bolstered his defense. The court also disagreed with defendant’s argument that the use of the word “victim” in section 1161, subdivision (b) was prejudicial, as the trial court would have understood “victim” meant “complainant,” and the jury instructions used “alleged victim” or “complaining witness.”

The full opinion is available on the court’s website here: