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Name: People v. Leonard
Case #: D062660
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/18/2014

Where amended information was filed without an order explicitly approving filing, it is presumed it was filed with leave of court. Leonard and Walser were convicted of pimping (Pen. Code, § 266h, subd. (a)), pandering (Pen. Code, § 266i, subd. (a)(2)), and assault by means of force likely to inflict great bodily injury (former Pen. Code, § 245, subd. (a)(1)). Leonard was also convicted of criminal threats (Pen. Code, § 422), and a prior prison term, prior serious felony, and strike prior were found true. Defendants were sentenced to state prison and appealed. Held: Affirmed. Leonard claimed the trial court lacked jurisdiction to arraign him or proceed to trial on a third amended information (which added the priors) because the court did not explicitly approve the filing. Where the record is silent as to whether or not permission was granted to file an amended information, and in the absence of any indication that leave of court was not granted, it may be presumed such permission was granted. On appeal, it is presumed the judgment of the lower court is correct. Even if the trial court acted in excess of jurisdiction because it failed to exercise its discretion to allow the amended information to be filed, Leonard forfeited the issue by failing to raise it below. “[A] court’s act in excess of jurisdiction is valid until set aside, and a party may be precluded from setting it aside, due to waiver, estoppel, or the passage of time.” (People v. Tindall (2000) 24 Cal.4th 767.)

Trial counsel was not ineffective for failing to object to the filing of the third amended information. The third amended information was filed and, about a month later, the appellants were arraigned on it without objection. The gap in time and absence of any discussion regarding the amended information reflects that considerations may have been involved that resulted in no defense objection, which are not apparent from the record.

Pandering by encouragement is an ongoing offense. Walser challenged the sufficiency of the evidence to show he pandered either of the two prostitutes, Jordan or Hanson, because there was no evidence he aided and abetted Leonard before the crime was complete. Pimping and pandering are continuous offenses. Pandering is complete once the victim is encouraged to be a prostitute and continues as long as the prostitution is ongoing for purposes of aider and abettor liability. Walser’s violence and intimidation towards the two women was sufficient to support his conviction as an aider and abettor. (Distinguishing People v. DeLoach (1989) 207 Cal.App.3d 323, which rejected the defendant’s argument that pandering her daughter on two separate occasions, 20 days apart, was an “ongoing offense” and held that two separate charges of pandering by encouragement were sufficiently distinct and supported.)

The trial court did not err in failing to give a unanimity instruction. When the evidence suggests more than one discrete offense, either the prosecution must elect among the crimes or a unanimity instruction should be given requiring the jury to agree on the same criminal act. Such an instruction is not required, however, if the statute contemplates a continuous course of conduct. Walser claimed the trial court was required to instruct the jury it must unanimously agree on which of his acts formed the basis of his aider and abettor liability. However, as pandering by encouragement (Pen. Code, § 266i, subd. (a)(2)) can be a continuous course of conduct, and the offense as charged here reflects Walser’s acts occurred over a specified period of time, a unanimity instruction was not required.

The trial court erred in allowing prosecution expert testimony which expressed an opinion regarding Leonard’s status as a pimp. The court allowed Detective Hunter to give expert testimony regarding “pimp culture” and to characterize Leonard’s type of pimping. These were unhelpful comments on Leonard’s guilt or innocence which the trier of fact was competent to assess. However, the error was harmless as the testimony was brief and the remaining evidence of Leonard’s guilt was overwhelming.