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.,

Defendants and Appellants.

 A135605

 (Contra Costa County

 Super. Ct. No. 05-111775-3)

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 convictions 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 Jane 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 than 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 under the age of 18 (§ 288a, 

subd. (b)(1); count 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 11 days of testimony, 

the jury found both defendants guilty of all of the charges against them. 

A. Trial Evidence

On April 20, 2009, three female foster children—13-year-old Jane Doe 1, 17-yearold 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 Fields’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 Ramon. Just before leaving 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 Jane 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 to 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 to moan and groan.” Also, she should “[j]ust 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 client, 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” because 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 appointment, “[a] lot of money 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 used 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 these 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 others.” 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 sexual intercourse with 

Griffin, and 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. On 

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 Stephen Sealy 

stopped a car driven by Fields; S.G. was in the front 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 Doe 2 and Jane Doe 3 were scantily dressed in “pretty tight clothes.” 

After defendants were arrested, police searched the San Ramon residence and 

found, among other items, a tray of condoms in the bedroom shared 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 collected 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, testified 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 to 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 girl,” and 

Fields, as the pimp-in-charge, exerted psychological control on S.G. and the other 

prostitutes. 

B. Judgment and Appeal

The 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 

appeal 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 

testified 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 oral 
6

copulation with Jane Doe 3 when he was interrogated by police.4She was 16 years old 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. 

(People 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 

requirement 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 

evidence 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 

pp. 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 doctrine 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 or 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 victim’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 

interpreted 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 

18. 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 corpus 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 trial court treated Griffin’s offense as a felony, sentencing 

him to eight months in prison (one-third the midterm) for the offense, to be served 

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 discrepancy 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.4th 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.

Hofsheier 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 We use the term “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, subdivision (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 offense as [a] result of sexual compulsion or for purposes of sexual 
9

The defendant 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 

registration 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 the 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? (Hofsheier, 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 from 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 relative 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 section 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 Legislature could require 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 16- 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 treatment 

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),7Limon 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, finding 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

Notwithstanding 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. However, a 

defendant does not have a fundamental interest in a specific term of imprisonment or in 

the designation a particular crime receives. (People v. Wilkinson (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, 204 (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 rational 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 the 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 the 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 acts 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 

sentence 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. (Stats. 1950, 

1st Ex. Sess., ch. 56, § 1, p. 512; Stats. 1975, ch. 71, § 10, p. 134.) In that year, the 

Legislature also differentiated the punishments for oral copulation, 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 threeyear sentence if the adult offender was more than 10 years older. (Stats. 1975, ch. 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 gender neutral. 

(Stats. 1993, ch. 596, § 1, p. 3139.) The 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) amendments 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 section 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, chapter 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 1139, 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 procured 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

differentiate the punishments for unlawful sexual intercourse, including the misdemeanor 

classification now found in section 261.5, subdivision (b). (Stats. 1993, ch. 596, § 1, 

p. 3139.) An 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 pregnancy, 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 No. 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 pregnancy. (Stats. 1996, ch. 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 given 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 attention 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 Limon 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 risks of pregnancy 

and HIV transmission from engaging in sexual intercourse. (Hofsheier, supra, 37 Cal.4th 
14

at p. 1203.) Although there are academic survey studies substantiating these reports,10a 

rational basis supporting a legislative classification can be “any reasonably conceivable 

state of facts” that support the classification, even if based solely 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 distinction actually motivated the 

legislature.” (Id. at pp. 314–315.)

The Attorney General proposes that the Legislature might have rationally wanted 

to give judges discretion to impose felony punishment as a greater deterrent to oral 

copulation since the commission 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 linkage 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 Legislature 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 punishment 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 (former 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 Versus Vaginal Sex Among Adolescents: 

Perceptions, Attitudes, and Behavior (2005) 115 J. American Academy Pediatrics 4; 

Brady & Halpern-Felsher, Adolescents’ Reported Consequences of Having Oral Sex 

Versus Vaginal Sex (2007) 119 J. American Academy Pediatrics 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, 514–515.)
15

denounced by section 245 was more likely to occur than that denounced by section 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 equally 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 from 

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 copulation with a minor of age 16 or 17 as a 

wobbler while treating sexual intercourse with a minor of the same age as a 

misdemeanor. (Hofsheier, supra, 37 Cal.4th at p. 1201, 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 courts to judge the wisdom, fairness or logic of legislative 

choices.’ ” (Trihealth v. Board 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 Instructions

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 evidence 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, including 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 offenses. (Evid. Code, § 1108; People v. Villatoro (2012) 

54 Cal.4th 1152, 1159–1160 (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, uncharged 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 the 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. The 

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 

to 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 required 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 requisite intent for [the] . . . offense[] alleged in count[] . . . 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 of 
17

[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 must 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 Supreme 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 uncharged 

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. Reyes (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 

it 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 preponderance 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 particular 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 preponderance of the evidence standard of proof for any fact. To the contrary, 

the instruction told jurors, “The People must still prove each element of every charge 

beyond a reasonable doubt.” The jury was also instructed with CALCRIM No. 220 that, 

“Whenever I tell you the People must prove something, I mean they must prove it beyond 

a reasonable doubt.” Because the instructions given here sufficiently emphasized the 

reasonable doubt standard applied to the determination of all charged offenses, there is no 

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 

opinions in Villatoro, that the instruction sanctions a “bootstrapping” of verdicts, inviting 
19

the jury if it found against defendant on one count to find against him on the other 

charges. As the majority concluded in Villatoro, allowing one charged sexual offense 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 count. It requires the jury to make a factual finding 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 considered 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.)

Griffin 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 charged 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 

or 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, there 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 danger 

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 offense, evidence of the defendant’s commission of another 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 jury to consider 

evidence of the former as evidence of his propensity to commit the latter. 

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 other 

sexual offenses. All of the victims of these offenses were highly vulnerable minors, 

runaways from a receiving home for foster children. All were sexually inexperienced. 

Jane Doe 1 was 13 years old. All 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 dividing 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 instruction given as 

to defendant Griffin.

2. Fields’s Contention

There was evidence Fields engaged in unlawful sexual intercourse with 16-yearold S.G. in violation of section 261.5. Based on that evidence, the trial court instructed 

the jury with CALCRIM No. 1191. The instruction told the jury the prosecution had 

presented evidence “Defendant Fields committed the crime of unlawful intercourse with 

minor, [S.G.], from April 20th through April 28th, 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 further 
21

conclude he “was likely to commit and did commit unlawful sexual intercourse with a 

minor,” as charged in count three. CALCRIM No. 1191 also cautioned the jury the 

uncharged offense evidence was “not sufficient by itself” to prove Fields “guilty of 

unlawful sexual intercourse with 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 “sexual 

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 instruction 

“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 constitutional 

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.) There 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, we 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 would be one involving sexual activity or gratification by the offender. 

The elements of pimping were defined in the jury instructions, and included no such 

element. In any event, the instruction did not tell the jury it could use the uncharged 

crime to conclude 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, and 
22

“based 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.) The 

instruction thus specifically directed the jury’s attention to the charged offense of 

unlawful 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 must 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 caution. 

Our 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 accomplice and 

accomplice instructions are not appropriate. (Id. at p. 329.) When an adult engages 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. In explaining why 

the Legislature affirmatively intended to punish prostitutes less severely than those 

arrested for pimping or pandering, the court in People v. Pangelina (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.) “In a prosecution 

under section 266h . . . , the prostitute whose earnings are taken is not an accomplice 
23

[citation]; and under section 266i . . ., the woman who is induced or procured to become 

an inmate of a house of ill-fame is not an accomplice.” (People v. Frey (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 

coconspirators or accomplices 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 pimping and pandering based on an uncharged 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 and/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 pandering; [¶] 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 being 
24

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 recognizing conspiracy liability are

“divorced from and in conflict with the plain language of section 31,” according to 

defendants. 

Defendants’ contention was directly refuted in People v. Mohamed (2011) 

201 Cal.App.4th 515, review denied February 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 court 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 which 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 such concern may be, for the law establishes no degree of the concern 

required to fix liability as 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 (1988) 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; People 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 page 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 of 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 defendant 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 addition, a further instruction on pimping requested by the prosecutor 

and given 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 living 

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 (1988) 47 Cal.3d 63, 

87–89 [closing arguments can be considered in determining adequacy of accomplice 

instruction].) The record shows the portion challenged by Fields was intended to clarify 

for the jury that Fields’s “support” was broader than just his living expenses. After 

reading the 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 

utilities. There’s no specific thing you need to do with the money. If you’re using it, if 
26

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 attorney argued to the jury 

there was no evidence Fields received or used any of the money derived from Jane 

Doe 2’s and Jane Doe 3’s acts of prostitution. 

The arguments of counsel correctly framed the issues for the jury. To support a 

pimping conviction, it is not necessary to prove the money defendant received 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 received (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 People 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, “The scope of proof does not necessitate a showing that the money earned from 

prostitution was 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. 

Jackson (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 pimping instruction as eliminating or diluting 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 which 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 money 
27

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 having 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 

staying 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 Fields 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 into 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 the case law, the evidence, and the arguments of counsel we 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 reasonable 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 $3,000, 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 section 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 an 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 had sufficient nexus to the victim’s 

economic loss to render 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 trial 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 is 

no possibility the trial court would have placed less responsibility for restitution on 

Griffin just because Fields was, he asserts, the kingpin of the criminal enterprise, and the 

older of the two. We find no basis for reversing the restitution award as 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 loss 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 victims 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 resolution 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 

Appellant 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. Chacón and Nanette Winaker, Deputy Attorneys General for 

Plaintiff and Respondent.