P. v. Zambia 5/12/09 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B207812

Case Date: 08/20/2009

Preview:Filed 5/12/09

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. JOMO ZAMBIA, Defendant and Appellant.

B207812 (Los Angeles County Super. Ct. No. LA055997)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis E. Mulcahy, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Jomo Zambia was convicted of pandering in violation of Penal Code section 266i, subdivision (a)(2),1 by encouraging Officer Erika Cruz to become a prostitute. He was sentenced to the middle term of four years in prison. In his timely appeal, defendant contends there was constitutionally insufficient evidence to support his conviction. Alternatively, he argues the evidence only supported a conviction for attempted pandering. We disagree and affirm.

STATEMENT OF FACTS

On the evening of June 8, 2007, Officer Cruz was conducting an undercover investigation in an area known for prostitution activity on Sepulveda Boulevard in Van Nuys. Defendant drove past her in a Ford pickup truck, looked in her direction, made a U-turn, and stopped next to her at the corner of Sepulveda and Valerio. In her experience, this was typical of how pimps and "johns" (prostitution customers) drive in that area. Defendant rolled down his window and asked the officer to get into his vehicle. Officer Cruz asked defendant, "what for?" and "he said that he was a pimp." The officer told him to back up so they could talk. Officer Cruz saw cell phones on the pickups center console.2 Defendant again told her to get into his car. When the undercover officer asked why, defendant repeated that he was a pimp. She asked what he meant. Defendant said he would "take care of" her. Defendant asked how much money she had with her. Hearing that she had $400, defendant told her that if she gave it to him, defendant would provide her with housing and clothing. When Officer Cruz expressed some misgivings about getting into

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All further statutory references are to the Penal Code.

Officer Kathyrn Paschal testified that when she arrested defendant, she found three cell phones, some condoms, and a business card on the pickups center console. It is common for pimps to carry condoms, which they provide to their prostitutes. Pimps will typically have more than one cell phone. 2

defendants car, he said he was "a legit business man," waived a business card at her, and said he would not "strongarm" her. In her experience, pimps, prostitutes, and their customers use the term "strongarm" to mean the forceful taking of a prostitutes cash. Defendant used a very aggressive tone of voice and demeanor during this conversation. Based on Officer Cruzs training and experience, defendant was behaving like a "gorilla pimp"--persons who used "verbal threats and violence to get their way and to scare prostitutes into working for them." Officer Cruz asked if she could continue to work in the Sepulveda area. Defendant said, "yes, and that he would just take care of [her]." At that point, Officer Cruz directed defendant to drive across the street. She signaled to her partners, who arrived and arrested defendant. Officer Paschal testified that in her experience, pimps place their prostitutes on the street, where they perform sex acts for money. The prostitute will turn the money over to the pimp, who will provide the prostitutes with food, clothing, and other services. Sergeant Alan Kreitzman was in charge of the investigation that night. In his experience, pimps carry business cards for legitimate businesses, which they provide to their prostitutes to give the false appearance of being involved in a legal trade. Where a john will be very circumspect in approaching a prostitute, pimps typically approach them in a direct, aggressive manner.

Defense According to defendants mother, Barbara Zambia, her son lived at home with her and her husband at the time of the incident. The family owned a janitorial business, First Class Building Maintenance. Defendant was employed in the business as a janitor. Although his hours varied, defendant usually worked 40-hour weeks, on evenings from approximately 6:00 p.m. to 12:30 a.m. Defendant carried one working cell phone, but had a broken one in the car, along with one he had borrowed from a friend. Two of the phones found in his car were purchased by defendants father.

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Defendant had recently become engaged to Celina Payano. They have an infant daughter. Payano works for the Los Angeles County Probation Department. Payano confirmed that defendants work hours varied along the lines described by his mother, but Payano also added that defendant often returned to the jobsite to pick up equipment in the morning hours. She recognized all three cell phones found in defendants pickup truck. She had no reason to think defendant also worked as a pimp.

DISCUSSION In reviewing a challenge of the sufficiency of evidence, we "consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted; People v. Hayes (1990) 52 Cal.3d 577, 631.) Our sole function is to determine if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin); People v. Marshall (1997) 15 Cal.4th 1, 34.) The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Stanley (1995) 10 Cal.4th 764, 792; People v. Bloom (1989) 48 Cal.3d 1194, 1208.) The California Supreme Court has held, "[r]eversal on this ground is unwarranted unless it appears ,,that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." (Bolin, supra, 18 Cal.4th at p. 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) As is relevant in this appeal, a person is guilty of pandering if he or she "causes, induces, persuades or encourages another person to become a prostitute" by "promises, threats, violence, or by any device or scheme." (

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