Filed 9/30/14 CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. DUWAN D. FIELDS et al., Defendant s and Appellant s

. A135605
( Contra Costa County Super. Ct. No. 0 5

- 111775

- 3)

A jury convicted defendants Duwan D. Fields and Claudiens Santrail Griffin of eight counts of pimping , pandering , and committing sexual offenses against minors.
Defendants contend their convict ions must be reversed due to asserted instructional

errors . Griffin further contends his conviction for oral copulation with a minor is not supported by substantial evidence and his felony sentence for the offense violates his right to equal protection of the law. Both defendants challenge a restitution award made jointly and severally against them. We reverse the order of restitution against defendant
Fields
, and otherwise affirm the judgments against both defendants.
I. BACKGROUND Fields was charged by amended information with pimping J ane Doe 2 (count one ) and Jane Doe 3 (count two ), minors over the age of 16 ( Pen. Code, 1 § 266h, subd. (b)); and engaging in an act of unlawful sexual intercourse with Jane Doe 3, a minor more than three years younger t han Fields (§ 261.5, subd. (c); count three ).

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A.1.
, II.B

. , II.C., II.D., II.E., and II.F.

1 All statutory references are to the Penal Code.2

Griffin was charged with committing lewd acts upon Jane Doe 1, a child under the age of 14 (§ 288, subd. (a); counts four & five ); pimping Jane Doe 3, a minor over the age of 16 (§ 266h, subd. (b); count six ) ; pandering Jane Doe 3 (§ 266i, subd. (a); count

seven ); forcibly raping Jane Doe 3 (§ 261, subd. (a)(2); count eight ); and participating in an act of oral copulation with Jane Doe 3, a minor und er the age of 18 (§ 288a,
subd. (b)(1); coun t nine). Griffin entered an open plea of no contest to count four , which was amended to identify the lewd act as oral copulation. A jury was sworn and impaneled on March 7, 2012. After 1 1 days of testimony, the jury found both defendants guilty of all of the charges ag ainst them.
A. Trial Evidence On April 20, 2009, three female foster children

— 13

- year

- old Jane Doe 1, 17

- year

old Jane Doe 2
, and 16

- year

- old Jane Doe 3

— ran away from a group home for children in protective custody operated by Child Protective Services in Sacramento. They got a ride from a stranger to an area of Sacramento known as Del Paso Heights and walked to an apartment Jane Doe 1 knew about in the area. At the apartment, they met some males, including Griffin. Later, the girls met Fields and Fi elds’ s girlfriend, S. G. , who was Griffin’s 16

- year

- old sister. In a car driven by Fields, Griffin, Jane Doe 3 , and S. G. left Del Paso Heights after a few days and went to Fields’ s condominium in San Ramon. Jane Doe 1 and Jane Doe 2
also went to San Ra mon. Just before leavi ng for San Ramon, Jane Doe 3 overheard a telephone call made by Griffin in which he told someone “ he had girls ready to make money and they could go to San Francisco.” Soon after they arrived in San Ramon, Fields and S. G. told Jan e Doe 2 “they wanted me to get ready to .

. . go do this stuff.” S. G. gave Jane Doe 2 clothes to wear, and helped her get ready to go. Fields, S.G. , Jane Doe 2 and Jane Doe 3 went to a house in San Francisco, and then left to go to a hotel. On the way t o the hotel, Jane Doe 2 realized that she, Jane Doe 3 , and S.G. “were actually going to be having sex with other people.” When they arrived at the hotel, S.G. and Fields told Jane Doe 2 “to show [Jane
Doe 3 ] how t o moan and groan.” Also, she should “[j]u st do whatever the guy asked”3

and to “act like you’re enjoying it and whatnot.” They warned, however, “to make sure you get the money from the guy.” As instructed, Jane Doe 3 went up to the hotel room first to perform oral sex on
the client as a means of ensuring he was not a police officer; then, “if everything was okay and he allowed [her] to go down and stuff .

. . then

. . . [Jane Doe 3 ] would tell him to go get [Jane Doe 2 ].” Later, when both Jane Doe 2 and Jane Doe 3 were in the room
with the cli ent, they both engaged in sexual intercourse with him. From that night until April 28, 2009, Jane Doe 2 went out with Fields and S.G. to meet with clients every night but one. Jane Doe 2 could not go that one night because she was “hurting too much” be cause of an appointment in which she and Jane Doe 3 had met with “a room full of guys.” Jane Doe 2 had had sexual intercourse with four men at that appointment; in addition, the men had digitally penetrated both Jane Doe 2 and
Jane Doe 3

. After that appo intment, “ [ a ] lot of m oney was collected and it was [Fields]
and [S.G.] ” who ultimately got the money.
Jane Doe 2 testified neither Fields nor S.G. ever gave her money for what she “had
to do.” S.G. told Jane Doe 2 that the money she had earned was us ed to pay for clothing. The girls stayed in Fields’s home and were also provided food. S.G. generally answered telephone calls from clients responding to ads Fields had placed on Craigslist; Jane Doe 2
did so on one occasion as well. When answering thes e calls, there was a “script” they were supposed to follow, and a pricing structure for the various sexual acts the girls could perform on the clients. Fields and S.G. drove the girls to and from each appointment, and collected the money earned. Jane Doe 2 and Jane Doe 3 would use condoms provided by
Fields and S.G. Jane Doe 1 did not go out to any appointments with clients. Griffin told Jane Doe
1 that when she turned 14, she would “be put on the track, ” 2 and would “wind up being a
hoe like the other s.” Griffin talked about being a pimp; specifically, he said, “he just be

2 Sacramento County Sheriff’s Detective Michelle Hendricks defined “the track” as “basically, walking the stroll, and you had sex for money with strange men.”4

glad when he got the money.” Griffin told Jane Doe 1 “[t]hat if any of us told, that they’d find us.” While in San Ramon, Jane Doe 1 engaged in se xual intercourse with Griffin, an d she orally copulated him. Jane Doe 3 testified she went on several appointments with Jane Doe 2 and S.G

. During that time, she also engaged in sexual intercourse with Griffin several times . O n one of these occasions, she told Griffin “no” but he held her tightly with his hands and continued to engage in sexual intercourse even after she tried “to push him off.”
Jane Doe 3 told Detective Hendricks Griffin “raped” her on that occasion

. On another occasion, Jane Doe 3 engaged in sexual intercourse with Fields after S.G. called Jane
Doe 3 into the bedroom she shared with Fields and asked Jane Doe 3 if she wanted “to
have sex with her man.” On April 28, 2009, about 1:34 a.m., Foster City Police Officer Stephe n Sealy stopped a car driven by Fields ; S.G. was in the fro nt passenger seat, and Jane Doe 2 and
Jane Doe 3 were seated in the back seat of the car. Upon the officer’s initial contact with the females in the car, they provided him with false names and dates of birth. 3 Officer Sealy testified Jane D oe 2 and Jane Doe 3 were scantily dressed in “pretty tight clothes.”
After defendant s were arrested, police searched the San Ramon residence and found, among other items , a tray of condoms in the bedroom shar ed by Jane Doe 1 , Jane Doe 2, and Jane Doe 3
, a piece of paper with “call back numbers,” and a listing of “John type services .” Fields’s cell phone number was included in a Craigslist erotic services ad
discovered in this case.
Criminalist Da

- Shing Peng testified the sperm found on underwear collec ted from
Jane Doe 1 was Griffin ’s to a very high level of statistical certainty

. During an interview with police, Griffin admitted Jane Doe 1 and Jane Doe 3 had orally copulated him. Holly Joshi, a police sergeant with the Oakland Police Department, tes tified as an expert on the subjects of child exploitation and pimping . Sergeant Joshi described the different models of pimping and pandering operations, explaining there is always a pimp

3 The girls had been instructed t o use false names and ages by Fields and S.G

.5

at the top and there may also be a “pimp in training.” The “bottom girl” is one who has authority over the other prostitutes in the operation, and has generally been around the pimp the longest amount of time. Based on her review of the materials in this case, she opined that Fields was the pimp and Griffin was a “pimp in training,” or “baby pimp.” She explained a pimp generally does not allow another male in the home with “his stable
of girls” unless he is a pimp

- in

- training. She believed S.G. was the “bottom gir l,” and Fields, as the pimp

- in

- charge, exert ed psycholog ical control on S.G. and the other prostitutes.
B. Judgment and Appeal
T he trial court sentenced Griffin to state prison for a total term of three years eight months, and sentenced Fields to state prison for a total term of eight years. Notices of

app eal were timely filed in May 2012.
II. DISCUSSION
A. Griffin’s Oral Copulation Conviction (Count Nine ) Griffin contends the prosecution wholly failed to establish the corpus delicti of the crime of oral copulation with Jane Doe 3. In the alternative, if this court finds the evidence was sufficient to support his conviction, Griffin maintains his felony sentence for that offense violated his right to equal protection because a person of his age convicted of unlawfully engaging in sexual intercourse with the same victim could only have been punished as a misdemeanant.
1. Corpus Delicti
Jane Doe 3 testified at trial that she and Griffin had sexual intercourse twice at the San Ramon apartment. Sacramento County Sheriff ’s Detective Michelle Hendricks

te stified at trial that she interviewed Jane Doe 3 twice in early May 2009. Jane Doe 3 told the officer she and Griffin had intercourse three or four times, and characterized the sex as only vaginal intercourse. Griffin, however, admitted he engaged in an act of oral6

copulation with Jane Doe 3 when he was interrogated by police. 4 She was 16 years ol d at
the time and Griffin was 18 years old. Griffin contends his admission to police was insufficient to support the verdict because the prosecutor failed to establish the corpus delicti. “ ‘ In any criminal prosecution, the corpus delicti must be established by the prosecution independently from the extrajudicial statements, confessions or admissions of the defendant. ’ ” ( People v. Kraft (2000) 23 Cal.4th 978 , 1057.) The purpose of the corpus delicti rule is to assure the defendant is not admitting to a crime that never occurred. ( People v. Jennings (1991)
53 Cal.3d 334, 368.) The “corpus” of a crime is not synonymous with the “elements” of the crime. ( Peop le v. Hawkins (2004) 124 Cal.App.4th 675, 680.) The prosecution, for example, need not prove the identity of the perpetrator by independent evidence, nor is independent evidence required to demonstrate the degree of a homicide. ( Ibid .) “There is no

requ irement of independent evidence ‘of every physical act constituting an element of an offense,’ so long as there is some slight or prima facie showing of injury, loss, or harm by a criminal agency. [Citation.] In every case, once the necessary quantum of independent
evi dence is present, the defendant’ s extrajudicial statements may then be considered for their full value to strengthen the case on all issues.” ( People v. Alvarez (2002) 27 Cal.4th 1161, 1171.) People v. Jones (1998) 17 Cal.4th 279 ( Jones ) is illustrative. The victim in that
case had been shot in the head and left to die by a roadside. Her underclothing had been removed, and residual semen was found on her clothing, genitals and anus. ( Id . at
p p

. 302, 291.) Although there was no physical evidence the victim had engaged in oral sexual acts, the defendant was convicted of aiding and abetting forced oral copulation because he had admitted the crime to police. On appeal, the defendant argued for a
reversal of this conviction under the doctri ne of corpus delicti. In affirming the trial

4 Griffin’s trial counsel acknowledged Griffin’s admission to the offense in his closing argument to the jury and stated, “And I will have no problem with you finding my client guilty of that.”7

court’ s decision to overturn a magistrate ’ s dismissal of the charge, the court held: “Section 288a, subdivision (a), defines this crime as ‘the act of copulating the mouth of one person with the sexual organ o r anus of another person.’ [¶] Keeping in mind the low threshold of proof required to satisfy the corpus delicti rule, we conclude that the magistrate erred in finding this low threshold was not met by the evidence presented at the preliminary examination. The state of the victim’ s clothing (no underwear or shoes)
and the forensic evidence

. . . indicates multiple sexual acts occurred. [The evidence of force and violence] gives rise to an inference that the sexual activity that occurred was against the vi ctim’ s will. This circumstantial evidence of multiple forcible sexual acts sufficiently establishes the requisite prima facie showing of both (i) an injury, loss or harm, and (ii) the involvement of a criminal agency. [¶]

. . . [¶] .

. . [W]e have never
i nterpreted the corpus delicti rule so strictly that independent evidence of every physical act constituting an element of an offense is necessary. Instead, there need only be independent evidence establishing a slight or prima facie showing of some injury , loss or harm, and that a criminal agency was involved. ” ( Jones , at pp. 302

– 303.) Here, section 288a, subdivision (b) generally proscribes oral copulation with a minor under 18 years of age. Section 261.5, subdivision (b) proscribes sexual intercourse
with a minor who is not more than three years younger than the perpetrator. The evidence showed Jane Doe 3 was 16 years old at the time of the incident and Griffin was
1 8

. Trial testimony established Griffin had sexual intercourse with Jane Doe 3 several
times and on one occasion the intercourse was forcible. This evidence of multiple unlawful sexual acts “ establishes the requisite prima facie showing of both (i) an injury, loss or harm, and (ii) the involvement of a criminal agency ” to satisfy the corpu s delicti
rule

. ( Jones , supra , 17 Cal.4th at p. 302 .) The prosecution was not required to provide independent evidence of the physical act of oral copulation with Jane Doe 3 in order to use Griffin’s admission to that offense to meet its burden of proof. ( Id. at p. 303. ) The evidence was sufficient in this case to support Griffin’s conviction for that offense.8

2. Equal Protection A violation of section 288a, subdivision (b)(1) is punishable either as a felony or a misdemeanor. In this case, the tria l court treated Griffin ’s offense as a felony, sentencing
him to eight months in prison (one

- third the midterm) for the offense, to be se rved consecutively to the three

- year sentence it imposed on one of the other counts. Had
Griffin been found guilty of unlawfully engaging in sexual intercourse with Jane Doe 3, the crime could only have been punishable as a misdemeanor under section 261.5, subdivision (b). According to Griffin , this di screpancy in punishment violates his right to equal protection of the law under the reasoning of People v. Hofsheier (2006) 37 Cal.4th
1185 ( Hofsheier )

. The People argue Griffin failed to raise his equal protection claim in the trial court, and has therefore forfeited it on appeal. (See People v. Carpenter (1997)
15 Cal.4 th 312, 362 [holding that a defendant could not raise an equal protection challenge for the first time on appeal].) The People have nonetheless fully briefed the issue, and we will therefore exercise our discretion to address the merits of the issue. Hof sheier involved an adult offender convicted under section 288a
, subdivision (b)(1) of a voluntary sexual act with a minor 16 years or older. 5 ( Hofsheier,

supra , 37 Cal.4th at p. 1198.) All such offenders were required by state law to register
for life as sex offenders under section 290 . ( Hofsheier , at p. 1198

. ) In contrast, an adult
offender convicted of sexual intercourse with a minor 16 years or older under
section 261.5 was not then subject to mandatory registration

. 6 ( Hofsheier , at p. 1197

. )

5 W e use the t erm “voluntary” in the special and restricted sense in which it is used in the Hofsheier opinion to indicate the minor victim willingly participated in the act and none of the statutory aggravating circumstances

— such as the defendant’s use of force or the victim’s unconsciousness or intoxication

— apply. (See Hofsheier
, supra , 37 Cal.4th at p. 1193, fn. 2.) We recognize, however, a minor is not capable of legally consenting to a sexual act and do not intend to intimate otherwise.

6 Former section 290, subdi vision (a)(2)(E) provided that a person convicted of certain other sexual offenses not included specifically in section 290, including section 261.5, subdivision (b), may be required to register “ ‘ if the court finds

. . . that the person committed the off ense as [ a ] result of sexual compulsion or for p urposes of sexual9

The d efendant in Hofsheier asserted the distinction in treatment under section 290 violated his right to equal protection. ( Hofsheier , at p. 1198

. ) The Supreme Court first
addressed the threshold question of whether the law being challenged

— the sex offender

r egistration statute

— adopted a classification affecting two or more similarly situated groups in an unequal manner

. ( Id. at p. 1199.) The court noted both of the criminal
statutes involved concerned sexual conduct with minors. ( Id. at p. 1200.) Since th e only difference between the two offenses was the nature of the sexual act, the court found persons convicted under the two statutes were “ ‘ sufficiently similar to merit application of some level of scrutiny to determine whether distinctions between the two groups justify the unequal treatment

. ’ ” ( Ibid. , quoting People v. Nguyen (1997) 54 Cal.App.4th
705 , 715 .) Because the case involved no classification subject to heightened scrutiny
under established equal protection jurisprudence, the court held the rational relationship test applied. ( Hofsheier

, at pp. 1200

– 1201.) In other words, in view of the objectives of the sex offender registration law, was there any reasonably conceivable state of facts that could provide a rational basis for making persons convicted of voluntary oral copulation with a minor over age 16 automatically subject to lifetime registration while treating persons convicted of voluntary sexual intercourse with a minor of the same age under section 290’s discretionary provisions ? ( Ho fsheier , at pp. 1200

– 1201

. ) Hofsheier answered this question in the negative. The Attorney General in Hofsheier took the position it was “ ‘reasonably conceivable’ that adults who engage in voluntary oral copulation with minors 16 or 17 years of age are more likely to repeat their offense than adults who engage in voluntary sexual intercourse with minors of the same

age. ” ( Hofsheier
, supra , 37 Cal.4th at p. 1203.) This in turn was based solely on media reports that due to the risk of pregnancy and HIV f rom engaging in sexual intercourse, oral copulation had become more prevalent among adolescents in preceding years.

gratification’ ” and “state[d] the reasons for requiring lifetime registration as a sex offender.” ( Hofsheier

, supra , 37 Cal.4th at p. 1197.) Former section 290 thus gave “the trial court discretion to weigh the reasons for and against registration in each particular case.” ( Hofsheier , at p. 1197

. )10

( Ibid. ) The court found the Attorney General’s thesis about relativ e reoffense rates to be wholly lacking in empirical support

. ( Id. at p

. 1203.) The court was unable to find any plausible basis for the distinction in treatment under the sex offender registration law
based on any reasonably conceivable facts , and indeed found mandatory lifetime registration of all persons convicted under s ection 288a , subdivision (b)(1) to be “a historical atavism dating back to a law repealed over 30 years ago that treated all oral copulation as criminal regardless of age or consent. ” ( Hofsheier
, at p. 1206 .) The court
concluded the L egislature could req uire lifetime registration both for persons convicted of voluntary oral copulation and for those convicted of voluntary sexual intercourse, but it could not treat them differently under that law

. ( Id. at p. 1207.) Hofsheier did not address, however, the issue Griffin raises

— whether there is a rational reason based on the purposes of the criminal sentencing laws that the Legislature might have wanted to allow trial courts greater discretion over the criminal penalty for oral copulation between adults and 1 6

- or 17

- year

- old minors than the penalty for sexual intercourse between the same persons.
Griffin also relies on State v. Limon (2005) 280 Kan. 275 [122 P.3d 22] ( Limon ).
Limon invalidated a Kansas “Romeo and Juliet” statute providing more lenient trea tment for voluntary sexual intercourse or sodomy with a 14

- or 15

- year

- old minor relative to statutory rape and sodomy if the offender was less than four years older than the victim, and the victim and offender were members of the same sex. ( Id. at p. 276 .) In other words, the Kansas leniency statute made no distinction between voluntary sexual intercourse and voluntary oral copulation between young persons, but it excluded homosexual acts from its coverage. Based on Lawrence v. Texas (2003) 539 U.S. 558 ( Lawrence ), 7 Limon held Kansas’s statutory distinction between homosexual and

7 Lawrence invalidated a Texas statute criminalizing “ ‘ deviate sexual intercourse ’ ” between persons of the same sex on due process grounds, f inding no legitimate state purpose for the statute’s intrusion into the personal and private life of the individual . ( Lawrence, supra, 539 U.S. at pp. 563, 578.)11

heterosexual acts violated the equal protection clauses of the state and federal Constitutions. ( Limon , at pp. 277, 301

– 302.) We do not have that issue in this case. 8
Notwith standing his reliance on Hofsheier , which applied a rational relationship test, Griffin asserts in passing that the sentencing disparity in issue here “arguably should

. . . be subject to strict scrutiny” because it implicates his liberty interests. Howev er, a defendant does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives. ( People v. Wilk in son (2004) 33 Cal.4th 821, 838 [finding rational basis test applicable to disparate punishments for similar battery offenses against custodial officers].) Griffin ventures no argument to the contrary, but stands on the claim that “ Hofsheier compels the conclusion that the classification at issue
here cannot .

. . withstand the more deferential rational relationship test .

. . .” As we have explained, Hofsheier is not in fact controlling here. The burden of demonstrating the invalidity of a classification under the rational relationship standard rests squarely on the party who challenges it. ( Chan v. Judicial Council of California (2011) 199 Cal.App.4th 194, 20 4 ( Chan ).) Griffin’s burden in this
case is to demonstrate that the disparity in treatment of offenders convicted under
sections 288a, subdivision (b)(1) and 261.5, subdivision (b) bears no rati onal relationship to any conceivable legitimate state purpose. ( Chan , at p. 204 .) This is a substantial
burden. “There is no question that the determination of punishment for various offenses inherently involves value and policy determinations left to t he Legislature, or to the people acting in a legislative capacity, and penal classifications will be upheld unless they are irrational.” (People v. McKee (2010) 47 Cal.4th 1172, 1204.)
We note t he Legislature has revisited the subject of voluntary sexual conduct involving minors multiple times since 1970 , making nuanced choices about the criminal

8 Although oral copulation with a minor under section 288a, subdivision (b)(1) encompasses a cts between persons of the same sex whereas unlawful sexual intercourse requires penile

- vaginal intercourse ( People v. Holt (1997) 15 Cal.4th 619, 675

– 676), we need not consider the potential Lawrence/Limon challenge that could be raised to a felony senten ce imposed for oral copulation between an adult and a same

- sex minor less than three years younger.12

punishments to be applied for such conduct

. 9 In 1975, the Legislature decriminalized sodomy between adults , which had been punishable as wobbler since 1950 . (S tats. 1950,
1st Ex. Sess., c h . 56, § 1 , p. 512 ; Stats. 1975, c h . 71, § 10 , p. 134.) In that year, the Legislature also differentiated the punishments for oral cop ulation, making oral copulation with a minor punishable as a wobbler with a maximum sentence of five years, making the same act a felony if the adult was over 21 and the minor under 16 years of age, and making oral copulation with a minor under age 14 subject to a minimum three

year sentence if the adult offender was more than 10 years older. ( St ats. 1975, c h. 877, § 2 , p. 1958 .) At that time, unlawful sexual intercourse with a minor female was punishable as a wobbler with a maximum felony sentence of three years. (Former §§ 261.5, 264, subd

. (a).) In 1993, the Legislature made section 261.5 ge nder neutral. (Stats. 1993, c h . 596, § 1 , p. 3139. ) T he Legislature opted at the same time to

9 The following statutes reflect just the amendments affecting criminal punishments for voluntary sexual conduct involving minors made since 1970: (1) a mendments made to section 288a by Statutes 1975, chapter 71, section 10, page 134; Statutes 1975, chapter 877, section 2, page 1958; Statutes 1977, chapter 490, section 2, page 1614; Statutes 1978, chapter 579, section 18, page 1984; Statutes 1979, chapter 944, section 7, page 3254; Statutes 1981, chapter 896, section 2, page 3415; Statutes 1985, chapter 1085, section 5 , page 3636 ; Statutes 1986, chapter 1299, section 5 , page 4595 ; Statutes 2010, chapter 219, section 8 , page 1108 ; (2) amendments made to s ection 261.5 by Statutes 1993, chapter 596, section 1 , page 3139 ; Statutes 1998, chapter 925, section 1 , page 6174 ; (3) amendments made to section 288 (lewd and lascivious conduct) by Statutes 1976, chapter 1139, section 177, page 5110; Statutes 1978, ch apter 579, section 17, page 1984; Statutes 1981, chapter 1064, section 1, page 4093; (4) amendments made to section 286 (sodomy) by Statutes 1975, chapter 71, section 7, page 133; Statutes 1975, chapter 877, section 1, page 1957; Statutes 1976, chapter 1 139, section 175, page 5110; Statutes 1977, chapter 490, section 1, page 1613; Statutes 1979, chapter 944, section 6, page 3253; (5) adoption in 2004 of section 675 (sentence enhancement for persons convicted of felony unlawful sexual acts with minors pr ocured by payment) by Statutes 2004, chapter 769, section 1 , page 5957 ; (6) adoption in 2006 of section 288.7 (sexual acts with a child under 10 years of age) by Statutes 2006, chapter 337, section 9 , pages 2590

– 2591

.13

diffe re ntiate the punishments for unlawful sexual intercourse , including the misdemeanor
classification now found in section 261.5 , subdivision (b)

. ( Stats. 19 93, c h . 596, § 1 , p. 3139

. ) A n alternative bill making the statute gender neutral without modifying the
wobbler classification of the offense failed to pass . ( See Assem

. Bill No. 415 (1993

– 1994 Reg. Sess. ). ) In 1995, in response to concerns about teen pr egnancy, the Legislature
considered a bill that would have amended section 261.5 , subdivision (b) to classify
unlawful sexual intercourse between an adult and a minor less than three years younger as a wobbler if the female became pregnant . (Assem. Bill N o. 1490 (1993

– 1994 Reg.
Sess

. ), as amended Apr

. 6, 1995, §§ 1, 2, 3.) The Legislature in the end chose to address the problem by passing an amended version of the bill imposing substantial civil penalties for unlawful intercourse
, without regard to pregna ncy

. (Stats. 1996, c h

. 789, §§ 2, 3 , pp. 4161

– 4162 .) “Normally, the widest discretion is allowed the legislative judgment in determining whether to attack some, rather than all, of the manifestations of the evil aimed at; and normally that judgment is gi ven the benefit of every conceivable circumstance which might suffice to characterize the classification as reasonable rather than arbitrary and invidious .” (McLaughlin v. Florida (1964) 379 U.S. 184, 191.) Here, the Legislature has devoted substantial at tention to the punishments and penalties attaching to voluntary sexual conduct involving minors, and it is Griffin ’s burden to negate every circumstance that might have rationally supported its choices. For the reasons we have explained, Hofsheier and Lim on addressed distinguishable issues and do
not relieve Griffin from his burden in this case

. Further , we believe the Attorney General has proposed a rational basis for the distinction in penalty between section 288a, subdivision (b)(1) and section 261.5 . As noted earlier, Hofsheier acknowledged there were media reports to the effect that oral copulation had become more prevalent among adolescents due to the risk s of pregnancy and HIV transmission from engaging in sexual intercourse. ( Hofsheier
, supra , 37 Cal.4th14

at p. 1203.) Although t here are academic s urvey s tudies substantiating th ese reports, 10 a rational basis supporting a legislative classification can be “any reasonably conceivable state of facts” that support the classification, even if based so lely on “rational speculation unsupported by evidence or empirical data.” ( FCC v. Beach Communications , Inc. (1993) 508 U.S. 307, 313 , 315 .) It is “entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinctio n actually motivated the legislature.” ( Id. at pp. 314

– 315.) The Attorney General proposes that the L egislature might have rationally wanted to give judges discretion to impose felony punishment as a greater deterrent to oral copulation since the commiss ion of that offense had become more common among teens due to the perceived lower risks
, and minors were more likely to be persuaded to consent

to it compared to sexual intercourse for the same reasons. While Hofsheier found no logical or empirical linkag e between the relative prevalence of oral copulation among

teens and the imposition of mandatory sex offender registration on adults convicted of oral copulation with a minor, we find the data do have some logical relevance to the deterrent purposes served by criminal sentencing laws and classifications.
It is not irrational for the L egislature to want to deter offenses it perceives as more

common , more difficult to detect, and more likely to be committed than similar offenses
, by imposing more severe pun ishment for them, even if the less common offenses involve a greater risk of harm. Thus, in People v. Romo (1975) 14 Cal.3d 189, the court found it was not an equal protection violation to allow a more severe sentence for assault with a deadly weapon (for mer section 245) than that permitted for the greater crime of assault with intent to commit murder (former section 217) on the grounds that the conduct

10 See Halpern

- Felsher et al., Oral V ersus Vaginal Sex Among Adolescents: Perceptions, Attitudes, a nd Behavior (2005) 115 J. American Academy Pediatrics 4; Brady & Halpern

- Felsher, Adolescents’ Reported Consequences o f Having Oral Sex Versus Vaginal Sex (2007) 119 J. American Academy Pediatri cs 2. A court “may consider arguments in support of finding a rational basis for the statute even if those arguments were not part of the original legislative discussion at the time of enactment.” ( People v. Hollins ( Ill. 2012) 971 N.E.2d 504, 514

– 51 5.)15

denounced by section 245 was more like ly to occur than that denounced by se ction 217. ( Romo , at pp. 196

– 197.) In People v. Hernandez (2005) 134 Cal.App.4th 474, the court upheld a statute imposing greater penalties on aiders and abettors of crimes committed for the benefit of street gangs than aiders and abettors of crimes committed for the benefit of equa lly or more dangers groups such as hate groups or terrorist organizations. ( Id . at pp. 481

– 482.) The court cited statistics on the growing frequency of gang

- related crimes and reasoned that the equal protection clause does not prohibit the Legislature fr om focusing its attention on the classes of cases where it deems the need to be greatest. ( Id

. at p. 482.) Here, there is a “ ‘ “ ‘ reasonably conceivable state of facts ’ ” ’ ”

— data and media reports on the sexual behaviors and attitudes of teens

— that “ ‘ “ ‘ could provide a rational
basis ’ ” ’ ” for the Legislature to classify oral copulat ion with a minor of age 16 or 17 as a wobbler while treating sexual intercourse with a minor of t he same age as a misdemeanor

. ( Hofsheier
, supra , 37 Cal.4th at p. 120 1, italics omitted .) Whether that legislative distinction is wise or effective is not for this court to determine. Rational basis
review is a “ ‘a paradigm of judicial restraint,’ growing out of recognition that ‘equal protection is not a license for cou rts to judge the wisdom, fairness or logic of legislative choices.’ ” ( Tri h ealth v. B oard of Com’ rs , Hamilton County, OH (6th Cir. 2005)
430 F.3d 783, 791 .) For these reasons, Griffin ’s equal protection challenge to his sentence for count
nine fails

. B. Propensity Instruction s Griffin contends his rape conviction (count eight ) must be reversed because (1) the jury was improperly instructed on the use of propensity evidence , and (2) the trial court failed to weigh the probative value of the propensity e vidence against its prejudicial effect before giving the propensity instruction

. Fields contends the propensity instruction given as to his sexual offenses improperly allowed the jury to find he was predisposed to commit all of the charged offenses, inclu ding two pimping counts.16

1. Griffin’s Contentions If the defendant in a criminal action is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense can be admitted to show the defendant was disposed to commit such o ffenses. (Evid. Code, § 1108 ; People v. Villatoro (2012) 54 Cal.4th 1152, 115 9

– 1160 ( Villatoro ) .) The other sexual offense can include an offense charged in the same action , or a separate uncharged sexual offense, as long as the jury finds the defendant had in fact committed the other offense. ( Villatoro
, at pp. 1160

– 1167 .) To be considered as propensity evidence by the jury, u ncharged sexual offenses need only be proved by a preponderance of the evidence. ( People v. Cottone (2013)
57 Cal.4th 269, 287

– 288.) Villatoro held that in the case of charged offenses offered as propensity evidence the threshold standard of proof is the same as that required to prove the defendant guilty of the offense

— proof beyond a reasonable doubt that he in fact
committed th e offense. ( Id. at pp. 1167

– 1168.) Here, the prosecution offered both charged and uncharged sexual offenses as propensity evidence relevant to proving count eight , forcible rape of Jane Doe 3. T he jury was instructed in relevant part as follows using a modified version of CALCRIM
No. 1191: “ The People presented evidence that Defendant Griffin committed the crimes of lewd act upon child under age 14 as to Jane Doe 1; forcible rape as to Jane Doe 3; oral copulation of a minor under age 18, Jane Doe 3; and unlawful intercourse with a minor as

t o Jane Doe 2. These crimes are defined for you in these instructions. [¶] If you decide that the defendant committed a charged offense listed above or the uncharged offense as to Jane Doe 2, you may , but are not requ ired to conclude from that evidence that the defendant was disposed or inclined to have the requisite intent for the crime [] charged in

count []

. . . 8 , . . . and based on that decision also conclude that the defendant was likely to and did have the requis ite intent for [the]

. . . offense [] alleged in coun t []

. . . 8

. . . . [¶] If you conclude that the defendant committed a charged offense or the uncharged offense
as to Jane Doe 2 listed above
, that conclusion is only one factor to consider along with all
the other evidence. It is not sufficient by itself to prove that the defendant is guilty of17

[the]

. . . offense [] as alleged in Count []

. . . 8

. . . . The People must still prove each element of every charge beyond a reasonable doubt. ”
Griffin points out the jury instruction in issue in Villatoro included the following language specifying the standard of proof the jury had to apply before it could consider one charged offense as evidence the defendant committed another charged offense:

“ ‘ The People m ust still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge

. ’ ” ( Villatoro , supra , 54 Cal.4th at p. 1167 , italics added , fn. omitted .) The Sup reme Court held this language “ clearly told the jury that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity ,”
and thus “ there was no risk the jury would apply an impermissibly low standard of proof. ” ( Id. at p. 1168.) Griffin contends the instruction given in this case was not explicit enough about the standard of proof of charged offenses to eliminate the risk the jury would apply an impermissibly low standard of proof to decide whether to consider the specified charged offenses as evidence of his guilt for rape . He asserts that risk was compounded in this case because the jury (1) was instructed as to defendant Fields that it need only find by a preponderance of the evidence that he committed the u ncharged
offense of unlawful sexual intercourse with S.G. in order to consider it as propensity
evidence , and (2) also instructed under CALCRIM No. 203 that “[u]nless I tell you otherwise, all instructions apply to each defendant.” “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from [ one] particular instruction.” ( People v. Burgener (1986) 41 Cal.3d 505, 538, overruled on other grounds
in People v. Re yes (1998) 19 Cal.4th 743, 753 .) In reviewing Griffin ’s claim, we look to the instructions as a whole to determine whether there is a reasonable likelihood the jury
misunderstood the standard of proof it was to apply to the other charged offenses before
i t could consider them as evidence the defendant was guilty of rape

. ( People v. Smithey (1999) 20 Cal.4th 936, 963.) In doing so, we presume jurors are intelligent persons who are capable of understanding and correlating all of the jury instructions they are given.18

( People v. Guerra (2006) 37 Cal.4th 1067, 1148
, overruled on another point by People v.
Rundle (2008) 43 Cal.4th 76, 151 .) First, notwithstanding CALCRIM No. 203 we find no reasonable likelihood the jury believed it had to apply the same prepo nderance standard of proof to Griffin ’s charged offenses as it was instructed to apply to Fields’s uncharged unlawful intercourse offense. The court gave separate and distinct instructions under CALCRIM No. 1191 for each defendant, mentioning them by name and delineating the specific offense or offenses to be considered by the jury as possible propensity evidence

. This triggered the “unless I tell you otherwise” exception under CALCRIM No. 203, signaling to the jurors
these instructions pertained only to the individual defendant named in them , not to both
defendants. We must therefore presume the jury understood that the instruction on the use of propensity evidence it was told applied to Fields’s uncharged offense did not also apply to Griffin.
We also do not find it reasonably likely the jury otherwise misunderstood the standard of proof to be applied under the modified CALCRIM No. 1191 instruction given

as to Griffin

. While Villatoro approved the instruction used in that case , it did not hold that par ticular wording was mandatory in all cases in which other charged sexual offenses are offered to prove a defendant’s propensity or disposition to commit a specified sexual offense. The instruction given in this case made no reference to a more relaxed pre ponderance of the evidence standard of proof for any fact. To the contrary
, the instruction told jurors, “ T he People must still prove each element of every charge beyond a reasonable doubt. ” The jury was also instructed with CALCRIM No. 220 that, “Whenev er I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.” Because t he instruction s given here sufficiently emphasized the reasonable doubt standard applied to the determination of all charged offenses
, there is n o reasonable likelihood the jury applied a lesser standard in deciding whether Griffin committed one or more of the charged offenses specified in the propensity instruction

. We also reject Griffin’s contention, based on the concurring and dissenting opini on s in Villatoro , that the instruction sanctions a “ bootstrapping ” of verdicts, inviting19

the jury if it found against defendant on one count to find against him on the o ther charges. A s the majority concluded in Villatoro
, allowing one charged sexual offe nse to be considered as potential evidence relevant to another charged sexual offense does not in
fact permit the jury to convict the defendant of one count based simply on its guilty “verdict” on any other cou n t. It requires the jury to make a factual fi nding that the defendant has committed a sex offense before it can draw an inference of disposition or propensity from such finding, and affirms that evidence the defendant committed a charged offense is only one factor to consider and may not be considere d sufficient in itself to prove his guilt of another charged offense. ( Villatoro , supra , 54 Cal.4th at
p. 1165.) We are bound by the majority opinion in Villatoro on this point . ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Gri ffin complains that before reading the modified CALCRIM No. 1191 to the jury the trial court undertook no analysis of the propensity evidence under Evidence Code
section 352

. 11 While recognizing that evidence of char ged offenses may not be
excludable under section 352, Villatoro held that some weighing of the evidence’s probative value and possible prejudicial effect as propensity evidence is still appropriate. ( Villatoro
, supra , 54 Cal.4th at p. 1163.) If the sexual offenses are sufficiently dissimilar

o r so remote or unconnected to each other as to be inadmissible under a section 352 weighing test, it might not be proper for the jury to consider some of the charged offenses as evidence of a propensity to commit other charged offenses. ( Ibid. ) Here, the re is no indication on the record the trial court conducted such an analysis. Griffin contends the charged oral copulation and lewd and lascivious conduct charges in this case were so

11 Evidence Code section 352 provides: “ The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial dange r of undue prejudice, of confusing the issues, or of misleading the jury. ” Evidence Code section 1108 provides in relevant part: “ In a criminal action in which the defendant is accused of a sexual off

ense, evidence of the defendant’ s commission of anothe r sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352. ” ( Id., subd. (a).)20

dissimilar from the forcible rape charge it was improper to allow the j ury to consider
evidence of the former as evidence of his propensity to commit the lat t er. We are not persuaded. Griffin maintains that evidence he engaged in unlawful sexual activities with a willing partner has no tendency to show he had a propensity for forcibly committing sexual acts over the protestations of an unwilling partner. This greatly overstates the differences between the rape charge against Griffin and his ot her
sexual offenses. All of the victims of these offenses were highly vulnerable minors
,

r unaways from a receiving home for foster children

. All were sexually inexperienced.
Jane Doe 1 was 13 years old. A ll were being manipulated by Griffin into prostituting
themselves for his benefit. He had threatened them all with reprisals if they told about what was going on. It may be inferred Griffin felt he was in control of the minors and
entitled to have sexual relations with them when he wanted to

. In this context, the minors were not willing partners in any meaningful sense , and the d ividing line was all but
indiscernible between the rape conduct alleged against Griffin

— proceeding to have
intercourse with Jane Doe 3 despite her protestations and efforts to push him off

— and the
other sexual offenses charged against him

. In the context of this case, the trial court’s
asserted failure to explicitly weigh the probative value of the latter offenses before giving
the modified CALCRIM No. 1191 instruction was harmless

. We find no prejudicial error in connection with the propensity instructio n given as
to defendant Griffin.
2. Fields’s Contention There was evidence Fields engaged in unlawful sexual intercourse with 16

- year

old S.G. in violation of section 261.5. Based on that evidence, the trial court instructed the jury with CALCRIM No. 1 191. The instruction told the jury the prosecution had presented evidence “Defendant Fields committed the crime of unlawful intercourse with

m inor
, [ S.G. ] , from April 20 th through April 28 th , 2009 that was not charged in this case,” and if the prosecution proved the uncharged offense by a preponderance of the evidence, the jury could, but was not required to, conclude from that evidence Fields “was disposed or inclined to commit sexual offenses,” and based on that decision further21

conclude he “was likely t o commit and did commit unlawful sexual intercourse with a
minor ,” as charged in count three . CALCRIM No. 1 191 also cautioned the jury the uncharged offense evidence was “not sufficient by itself” to prove Fields “guilty of
unlawful sexual intercourse wit h a minor ,” and the People still had to prove “the charge” beyond a reasonable doubt. Fields contends the foregoing instruction is erroneous because it told the jury it could use the uncharged crime to conclude he was disposed or inclined to commit “sexu al offenses” generally, which the jury “undoubtedly” interpreted to include the crime of pimping. According to Fields, pimping is commonly understood by nonlawyers to be a
sexual offense. He maintains the jury might reasonably have interpreted the instru ction “to mean that if it found, by only a preponderance of the evidence, that [Fields] had committed the uncharged crime, it could infer that he was disposed to commit the pimping charges.” According to Fields, the instruction thereby violated his consti tutional right to due process of law. Preliminarily, we note the California Supreme Court found “no constitutional
error” in the nearly identical predecessor instruction to CALCRIM No. 1191, CALJIC
No. 2.50.01. (See People v. Reliford (2003) 29 Cal.4th 1007, 1012

– 1016 .) T here is no
material difference between CALCRIM No. 1191 and the older CALJIC No. 2.50.01, and the analysis in Reliford applies with equal force to the CALCRIM instruction. ( People v. Cromp (2007) 153 Cal.App.4th 476, 480 .) Further, w e do not agree it was reasonably likely the jury misunderstood the instruction in the manner Fields proposes. First, it is pure supposition by Fields that pimping is “commonly understood” to be a sexual offense. By common understanding, a
sexual offense w ould be one involving sexual activity or gratification by the offender. The elements of p imping w ere defined in the jury instructions, and include d no such
element

. In any event, the instruction did not tell the jury it could use the uncharged
crime to c onclude Fields was disposed to commit sexual offenses in general

. It told the jury that if it decided Fields committed the uncharged offense, it may, but was not required to, conclude defendant was disposed or inclined to commit sexual offenses, and22

“ base d on that decision, also conclude that defendant was likely to commit and did
commit unlawful sexual intercourse with a minor, as charged here .” (Italics added.) T he instruction thus specifically directed the jury’s attention to the charged offense of

un lawful sexual intercourse with a minor . It did not mention or direct the jury’s attention

to pimping, and it did not suggest the uncharged offense was relevant to any charged
offense other than unlawful sexual intercourse with a minor. Assuming as we mus t that jurors are intelligent persons capable of understanding and following the jury instructions they are given, we find no reasonable likelihood the jury believed it could use evidence
Fields had unlawful intercourse with S.G. to conclude he was guilty of pimping.
C. Failure to Instruct on Accomplice Testimony Principles Defendants join in the argument that their pimping and pandering convictions must be reversed because the trial court failed to instruct the jury sua sponte on the principles related to accomplice testimony. Defendants theorize Jane Doe 2 and Jane Doe 3 should have been considered as their accomplices in this case , and the jury should have been instructed on accomplice corroboration and the need to view accomplice testimony with cauti on

. O ur Supreme Court held in People v. Tobias (2001) 25 Cal.4th 327 that when a child under 18 has a consensual sexual relationship with a parent she is still a victim and not a perpetrator of the incest. A child in this situation can never be an accom plice and accomplice instructions are not appropriate. ( Id . at p. 329 .) W hen an adult engage s in
sexual acts with a minor the law considers the minor to be the victim and places the
burden on the adult to avoid the sexual relationship. ( Id . at p. 337 .) Even had they been adults, the minors in this case would not be treated as accomplices. I n explaining why
the L egislature affirmatively intended to punish prostitutes less severely than those arrested for pimping or pandering, the court in People v. Pang elina (1981)
117 Cal.App.3d 414 recognized “[i]t has been understood that, rather than being accomplices or coconspirators of those charged with felony pimping or pandering, prostitutes are criminally exploited by such persons.” ( Id . at p. 422.) “I n a pr osecution
unde r section 266h

. . . , the prostitute whose earnings are taken is not a n accomplice23

[ citation]; and under section 266 i

. . . , the woman who is induced or procured to become
an inmate of a house of ill

- fame is not an accomplice.” ( People v. F rey (1964)
228 Cal.App.2d 33, 52 ; see also People v. Berger (1960) 185 Cal.App.2d 16, 19

– 20 [“it has been uniformly held in this state that the woman who is exploited by a male in violation of section 266h is not an accomplice of the man who exploits her ” ] ; People v.
Grow (1978 ) 84 Cal.App.3d 310, 313 [as a matter of law
, adult “encounter parlor” employee was not an accomplice to pimping and pandering offenses charged] .) Under California law, Jane Doe 2 and Jane Doe 3 were victims of defendants and not

coc onspirator s or accomplice s in their own abuse. No accomplice instruction was required.
D. Conspiracy Theory of Liability Defendants contend the trial court improperly instructed the jury they could be found guilty of pimp ing and pandering based on an un charged conspiracy. In relevant part the jury was instructed as follows under CALCRIM No. 416 : “ The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy. [¶] To prove that a defendant was a member of a conspiracy in this case, the People must prove that: [¶] The defendant intended to agree and did agree
with one or more of the other defendants a nd/or [S.G.] , an uncharged co

- participant, to commit pimping and/or pandering; [¶] At the time of the agreement, the defendant and

one or more of the other alleged members of the conspiracy intended that one or more of them would commit pimping and/or pand ering; [¶] One of the defendants or [ S

. G .] or both or all of them committed at least one of the following overt acts to accomplish pimping and/or pandering in April of 2009 : [¶] [listing overt acts].” Defendants contend “conspiracy is not a valid theory of criminal liability” in California and “[t]he myriad cases that hold otherwise without critical examination of section 31, the controlling statute, are not viable. ” Section 31 provides in relevant part that “[a]ll persons concerned in the commission of a crime,

. . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being24

present, have advised and encouraged its commission,

. . . are principals in any crime so committed.” According to defendants, a conspiracy theory of liability is inconsistent
with section 31 because the statute does not state that people who conspire to commit a
crime

—unless they also engage in conduct amounting to aiding and abetting

— are principals in the commission of the crime

. Cases rec ognizing conspiracy liability are “divorced from and in conflict wit h the plain language of section 31,” according to
defendants. Defendants’ contention was directly refuted in People v. Mohamed (2011)
201 Cal.App.4th 515
, rev iew den ied Feb rua ry 29, 2012 : “ The ‘all

- persons concerned’ language in section 31 indicates the Legislature intended the definition of principal to apply broadly. [Citation.] A broad application of the language would necessarily include conspirators. As one appellate c ourt explained, ‘ “All persons concerned in the
commission of a crime

. . . are principals ” and, when two or more are “concerned,” they are bound by the acts and declarations of each other, when such acts and declarations are part of the “transaction” in w hich they are engaged, because they are “principals” and not because they are conspirators

. . . . [C]onspiracy comprehends nothing that is not included in the definition of “who are principals.” Liability attaches to anyone “concerned,” however slight suc h concern may be, for the law establishes no degree of the concern required to fix liability a s a principal.’ ” ( Id. at p. 524.) In any event, the California Supreme Court has consistently held conspirators are liable as principals for substantive crimes committed by another conspirator. ( People v.
Belmontes (198 8) 45 Cal.3d 744, 788 , overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ; People v. Kauffman (1907) 152 Cal. 331; People v.
Creeks (1915) 170 Cal. 368, 374

– 375; Pe ople v. Harper (1945) 25 Cal.2d 862, 871

– 873; People v. Weiss (1958) 50 Cal .2d 535, 563 .) Under Auto Equity Sales, Inc. v. Superior
Court , supra , 57 Cal.2d at p age 455, we are bound by these decisions to reject defendants’ claim that the use of CALCRIM No . 414 constituted prejudicial error.25

E

. Pimping Instruction
Fields contends a modified version of CALCRIM No. 1150 given as to counts one and two (for pimping minors Jane Doe 2 and Jane Doe 3, respectively) improperly lightened the prosecution’s burden o f proving the crime of pimping beyond a reasonable
doubt. The jury was instructed as follows as to the elements of pimping: “ Defendant Fields is charged in Count

. . 

### . with pimping in violation of Penal Code section 266h. [¶] To prove that the defendan t is guilty of pimping, the People must prove that: [¶] The
defendant knew that Jane Doe

. . . was a prostitute; and [¶] The money and / or proceeds
that Jane Doe

. . . earned as a prostitute supported the defendant, in whole or in part; or [¶] The defendant received payment for soliciting prostitution customers for Jane Doe

. . . ; and [¶] Jane Doe

. . . was a minor over the age of 16 years when she engaged in the prostitution.” In ad dition, a further instruction on pimping requested by the prosecutor and g iven by the trial court over Fields’s objection stated: “A conviction for deriving support from a prostitute’s earnings does not require evidence that the defendant received money directly from the prostitute, or that the money received paid his own livin g
expenses .” (Italics added.) According to Fields, the italicized language directly
contradicted the CALCRIM pattern instruction which requires the money earned from prostitution by the minor “supported the defendant
, in whole or in part.” An appellate court will examine the jury instructions as a whole, along with the attorneys ’ closing arguments to the jury, to determine if the instructions sufficiently conveyed the correct legal principles. (See, e.g., People v. Moore (19 88) 47 Cal.3d 63,
87

– 89 [ clos ing arguments can be considered in determining adequacy of accomplice
instruction ].) The record shows t he portion challenged by Fields was intended to clarify
for th e jury that Fields’s “support” was broader than just his living expenses. After reading t he challenged portion of the instruction to the jury in closing argument, the prosecutor explained it, without objection, as follows: “So it can be a third party intermediary. You don’t have to use it specifically for your rent, specifically for your uti lities. There’s no specific thing you need to do with the money. If you’re using it, if26

you’re putting it in savings, if you’re putting gas in your car, if you’re feeding yourself or others, that is sufficient under the law.” For his part, Fields’ s atto rney argued to the jury there was no evidence Fields received or used any of th e money derived from Jane
Doe 2 ’s and Jane Doe 3’s acts of prostitution.
Th e arguments of counsel correctly framed the issues for the jury . To support a pimping conviction, i t is not necessary to prove the money defendant receive d went solely to pay for his own expenses ( People v. Navarro (1922) 60 Cal.App. 180, 182), or to prove exactly how the defendant spent the money he receive d ( People v. Giambone (1953) 119 Cal.App.2d 338, 340 , disapproved on another ground in People v. Smith (1955) 44 Cal.2d 77, 80

– 81 ). It is immaterial the defendant has ample legitimate income from other sources to fully support him. ( People v. Coronado (1949) 90 Cal.App. 2d 762,
766

– 767; see also Pe ople v. Kennedy (1962) 200 Cal.App.2d 814, 817 [ not a defense to pimping that the accused had a sufficient income from other sources ].) The cases thus
establish
, “ T he scope of proof does not necessitate a showing that the money earned from prostitution wa s actually spent to provide support and maintenance if it may reasonably be inferred that the accused has spent the money or applied it to his benefit.” ( People v.
Ganatta (Colo. 1981) 638 P.2d 268, 271

– 272 [ construing California cases ] .) In People v.
Ja ckson (1980) 114 Cal.App.3d 207, the Court of Appeal upheld a conviction for pimping based solely on evidence the defendant picked up $33 from a motel room bed derived from a single act of prostitution. (See also Kennedy
, at p. 817 [no showing is required that money defendant received from person he knew to be a prostitute was used for his support and maintenance].) We do not think it was reasonably likely the jury would have understood the challenged portion of the pi mping instruction as eliminating or d iluting the requirement
that the prosecution prove beyond a reasonable doubt defendant received
, and derived
benefit from
, the money Jane Doe 2 and Jane Doe 3 earned from prostitution , as the case law requires

. Certainly there was ample evidence from whic h the jury could have
concluded this element was satisfied. Jane Doe 3 testified she gave the money she earned from prostitution to Fields , and got none back. She testified she saw him put the money27

in his pocket. Jane Doe 2 testified S.G. told her the money from her and Jane Doe 3’s acts of prostitution went to both S.G. and Fields . Jane Doe 2 testified she received no money from them for what she had to do. She further testified she handed the considerable money she and Jane Doe 3 collected from havi ng sex with several men in a
hotel room to Fields and S.G. S.G. ’s sister, D.G. , testified S.G. would give money to Fields and she saw Fields with “racks” of money. During the time the minors were

sta ying at the San Ramon house, D.G. saw S.G. give cash to Fields after she returned from dates that he would count and put in his pocket. D.G. heard S.G. and Field s talking about how Fields would put the money in a bank account and spend it on clothes and buying a new car. In April 2009, she saw Fields come in to the San Ramon residence with groceries and bags of new clothes he and S.G. had bought. She saw Fields filling his car with gas. D.G. testified Fields had a lot of jewelry and clothes, liked to go shopping, and owned three or four cars.
In view of th e case law, the evidence, and the arguments of counsel w e find no error in the modified CALCRIM No. 1150 instruction given , nor any reasonable likelihood the jury misunderstood the instruction to mean the prosecution did not have to prove beyond a reasonab le doubt that the minors’ prostitution earnings supported Fields
, in whole or in part

. F

. Restitution Issues The trial court ordered Fields and Griffin, jointly and severally, to pay restitution
to Jane Doe 1 and her guardian/parent in the amount of $3
, 0 00 , under section 1202.4, subdivision (f). Fields contends the award was improper as to him because he was not charged with or convicted of any criminal acts against Jane Doe 1. Griffin for his part maintains he was deprived of his right to unconflicted counsel at the restitution hearing
because Fields’s trial counsel , Christopher Feasel, specially appeared to represent both
defendants at the hearing

. Fields’s contention has merit, as the Attorney General properly concedes. “Courts have interpreted sec tion 1202.4 as limiting restitution awards to those losses arising out of the criminal activity that formed the basis of the conviction.” ( People v. Woods (2008)28

161 Cal.App.4th 1045, 1049.) In Woods , this court held that a defendant convicted of being a n accessory after the fact to a murder could not be ordered to pay restitution to the murder victim’s family under section 1202.4 because his conduct did not cause the loss for which compensation was sought. ( Woods
, at p. 1051.) We rejected the argument that a conviction of being an accessory after the fact ha d sufficient nexus to the victim’s
economic loss to r ender that loss a “result ” of the defendant’s conduct for purposes of
section 1202.4 , subdivision (f). 12 ( Woods
, at p. 1052.) We believe the tria l court erred in this case in imposing a restitution obligation on Fields because he was “essentially the kingpin of the operation,” who was “responsible for whatever happens under his tutelage,” including the crimes committed by Griffin. That result was improper under
Woods . We will therefore reverse the restitution order as to Fields. Even assuming for the sake of analysis Griffin has shown Feasel represented conflicting interests at the restitution hearing, he has failed to show prejudice

— a reasonable probability that but for counsel ’ s deficiencies, the result of the proceeding
would have been different. The record shows Jane Doe 1 ’ s expenses were incurred as the
result of Griffin ’s unlawful sexual conduct with her

. Under these circumstances, there i s no possibility the trial court would have placed less responsibility for restitution on Griffin just because Fields was, h e asserts, the kingpin of the criminal enterprise , and the
older of the two. We find no basis for reversing the restitution award a s to Griffin. 13

III. DISPOSITION
The order for restitution as to defendant Fields is reversed . In all other respects we affirm the judgments.

12 With exceptions not relevant here, section 1202.4, subdivision (f) provides, “ in every case in which a victim has suffered economic lo ss as a result of the defendant’ s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or vi ctims or any other showing to the court. ”

13 In his opening brief, Griffin states he “joins in and incorporates all of the arguments and contentions made by codefendant Fields that may inure to his benefit.” We have found no instance in which our resolutio n of Fields’s claims benefits Griffin.29 _________________________ Margulies, Acting P. J.

We concur:

_________________________ Dondero, J.

_________________________ Banke, J.Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Theresa J. Canepa

Counsel:
William J. Capriola , under appointment by the Court of Appeal, for Defendant and Appe llant Duwan D. Fields.
Mark Shenfield, under appointment by the Court of Appeal, for Defendant and Appellant Claudiens Santrail Griffin.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, René A. Chacó n and Nanette Winaker , Deputy Attorneys General for Plaintiff and Respondent.