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Name: People v. Jacobo
Case #: D074887
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/02/2019

Aggravated human trafficking under a pandering theory (Pen. Code, § 236.1, subd. (b)) can be committed when only two persons are involved, i.e., the panderer and the victim, and does not require that the panderer intend to procure the victim for a third person. Defendant used a Facebook account under a fictional female persona to send “friend” requests to seven minor females urging them to become prostitutes. Four of the minors agreed to meet with a “date” who was actually defendant. He engaged in sexual acts with the minors and took sexually explicit photographs of them. He was convicted of numerous human trafficking and sexual offenses based on his acts. On appeal, defendant challenged the sufficiency of the evidence to support his human trafficking convictions under a pandering theory arguing that pandering requires the intention to procure another person for a third person and his intention was to be the minors’ sole client. Held: Affirmed on this point. Penal Code section 236.1, subdivision (c)(2) provides, in pertinent part, that a person who induces or persuades a minor to engage in a commercial sex act in violation of Penal Code section 266i (pandering), is guilty of human trafficking. Pandering includes the use of force, promises, threats or a scheme, to induce, persuade, or encourage another person to become a prostitute. (Pen. Code, § 266i, subd. (a)(2).) It does not require that the panderer intend to procure the other person for a third person; it can be committed when only two persons are involved—namely, the panderer and the victim who the panderer persuades to become a prostitute. Here, there was no dispute defendant persuaded, or attempted to persuade, each of the seven minors in this case to engage in a commercial sex act with the intent to persuade or encourage them to become a prostitute with only himself. As a result, there was substantial evidence to support defendant’s seven convictions of aggravated human trafficking.

Substantial evidence supported defendant’s convictions for using a minor to perform posing or modeling of sexual conduct where photographs of minors in underwear exhibited their genitals/pubic area to sexually stimulate the viewer. Defendant argued there was insufficient evidence to support two of his convictions for using a minor to perform posing or modeling of sexual conduct (Pen. Code, § 311.4, subd. (c)) because the photographs did not depict the required sexual conduct. The Court of Appeal disagreed. For purposes of section 311.4, subdivision (c), “sexual conduct” is defined as including the exhibition of the genitals, pubic, or rectal area for the purpose of sexual stimulation of the viewer. (Pen. Code, § 311.4, subd. (d)(1).) Relying on People v. Kongs (1994) 30 Cal.App.4th 1741 and the six Kongs-factors, the court here concluded that under section 311.4, subdivision (c), the photograph or image need not involve a lewd or naked image of the minor, but may violate the statute based on the conduct depicted, the attire of the minor, partial display of genitalia, and the sexually suggestive setting in which the image was taken. Although the minors in the photographs at issue were wearing underwear, the photographs were sexually suggestive and exhibited the minors’ genitals or pubic area for the purpose of sexual stimulation of the viewer within the meaning of section 311.4, subdivision (d)(1).

Penal Code section 654 did not preclude sentencing defendant for both his aggravated human trafficking offenses and the sex offenses he committed against four of the minors because he had separate intents and objectives. Defendant argued that because the sex offenses committed against four of the minors were part of the same indivisible course of conduct with the same objective as the aggravated human trafficking offenses against those same minors, section 654 precluded sentencing on both. The Court of Appeal disagreed. Section 654 provides that an act or omission punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest term but may not be punished under more than one provision. Where a course of conduct is involved, the question of whether it is divisible and therefore gives rise to more than one act under section 654 depends on the defendant’s intent and objective. In cases involving sex offenses, even if there is but one objective, i.e., sexual gratification, section 654 does not apply to sexual misconduct that is preparatory in the general sense that it is designed to sexually arose the victim or the defendant. Here, the trial court implicitly found defendant had a separate intent and objective in committing the sex offenses from his intent and objective in committing the human trafficking offenses. This was supported by the record, as each of defendant’s human trafficking offenses were committed at separate times and at separate places from the sex offenses. The trial court also reasonably could find that defendant’s aggravated human trafficking offenses were merely preparatory to his subsequent sex offenses and were not incidental to or the means by which those sex offenses were accomplished.

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