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Name: People v. Futrell
Case #: D039474
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 12/09/2003
Subsequent History: Depublished 3/24/04

A jury convicted appellant of pimping, in violation of Penal Code section 266h. On appeal, he argued that the trial court erred when it failed to instruct the jury on the lesser included misdemeanor offense of aiding a prostitute, in violation of section 653.23. (He argued that the jury might have believed his conduct was less than felonious because the prostitute testified that she had only known him a week and that she had just given him her money to hold in case she got arrested.) The appellate court here rejected the argument and affirmed. Section 653.23 is not a lesser included offense of section 266h, subdivision (a), under either the elements test or the accusatory pleading test. Therefore, the trial court had no sua sponte duty to instruct on such an offense. Further, the trial court had no sua sponte duty to instruct the jury with CALJIC 2.50, 2.50.1, and 2.50.2 concerning other crimes evidence because the prostitute testified she had smoked marijuana and had consensual sex with appellant when she was 15 years old. There was no objection to this testimony, and no request for instructions. Nor was the evidence a dominant part of the case or highly prejudicial. It was “minimally prejudicial” in light of the overwhelming evidence of pimping. ORDERED DEPUBLISHED on 3/24/04.