Filed 11/19/20 P. v. Brown CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID LAMONT BROWN,

Defendant and Appellant.

 B300031

 (Los Angeles County

 Super. Ct. No. BA474258)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Craig J. Mitchell, Judge. Affirmed and 

remanded with directions.

Marilee Marshall for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Michael C. Keller and Charles J. Sarosy, 

Deputy Attorneys General, for Plaintiff and Respondent.

______________________
2

On July 16, 2018, bystander Lexus Scott observed 

defendant David Lamont Brown punching and struggling with 

T.J., a minor, in the back seat of a parked car. Scott telephoned 

911. Brown ejected T.J. from the car and sped away. While T.J. 

sat in an ambulance, Los Angeles Police Department (LAPD) 

Officer Keleigh Edwards asked her if she was “working,” a

colloquial term referring to prostitution. T.J. responded that she 

did not want to, but that “he” insisted she get out of the car; when 

she refused, he punched her and threw her out of the car.

T.J. did not testify at Brown’s trial. In her absence, the 

prosecution played two recordings for the jury: an audio recording 

of the 911 telephone call placed by Scott and a portion of a body 

camera video taken while Officer Edwards spoke with T.J. The 

trial court also permitted the prosecution to call two witnesses,

M.W. and W.F., to testify that when they were each 14 years old,

they worked for Brown as prostitutes.

The jury convicted Brown of human trafficking of a minor, 

T.J., for a commercial sex act (count 1), and found true the 

allegation that he used force or fear against her within the 

meaning of Penal Code section 236.1, subdivision (c)(2).

1 The 

jury also found Brown guilty of assaulting T.J. by means likely to 

cause great bodily injury under section 245, subdivision (a)(4) 

(count 2), and unlawful sexual intercourse with T.J., a minor 

more than three years younger than Brown, under section 261.5, 

subdivision (c) (count 3). The trial court found true the allegation 

that Brown had a prior felony conviction for human trafficking of 

a minor, involving M.W. and W.F.

1 All unspecified statutory references are to the Penal Code.
3

The trial court sentenced Brown to a total of 21 years and 

eight months to life in state prison. The court also imposed a 

one-year enhancement under section 667.5, subdivision (b), for 

service of a prior prison term, but stayed this sentence.

On appeal, Brown argues the admission of the two 

recordings violated his Sixth Amendment right to confrontation. 

He also argues permitting both W.F. and M.W. to testify that 

they worked for Brown as prostitutes when they were 14 years 

old was so unduly prejudicial that it rendered the trial 

fundamentally unfair and violated his Fifth and Fourteenth 

Amendment rights to due process. Finally, Brown argues that 

pursuant to newly-amended section 667.5, subdivision (b), the

one-year sentencing enhancement should be stricken rather than 

stayed. The People agree, as do we, that the enhancement should

be stricken.

For the reasons that follow, we remand for the trial court to 

strike the one-year enhancement imposed under former section 

667.5, subdivision (b), but otherwise affirm the judgment.

FACTUAL BACKGROUND

A. T.J. is Arrested for Prostitution

During the night of June 6, 2018, undercover LAPD vice 

investigator Marco Sanchez posed as a person interested in 

soliciting the services of a prostitute. T.J. approached his vehicle. 

After she and Investigator Sanchez agreed that he would pay her 
4

in exchange for certain sex acts, he drove T.J. to a predetermined 

“take-down area,” where uniformed officers arrested her.

2

B. Testimony of Brown’s Girlfriend

Brown’s girlfriend, Jasmine Houston, did not work as a 

prostitute. She owned a black Nissan Sentra, which she let 

Brown use while she was at work.

Sometime in July 2018, Brown and Houston broke up. 

Prior to their breakup, Houston and Brown argued about 

photographs of T.J. on Brown’s cell phone and texts of a sexual 

nature between Brown and T.J. Despite their breakup, Brown 

continued to have the keys to Houston’s car.

Houston also testified that Brown commonly referred to 

himself on Instagram by using an image of a blue diamond next 

to the word “Dave,” and confirmed “Diamond Dave” was one of 

Brown’s Instagram names.

C. The July 16, 2018 Attack on T.J.

Scott’s Observations and Call to 911

On July 16, 2018, Scott lived one city-block away from the 

intersection of Figueroa Street and 90th Street. Scott did not 

know T.J. or Brown. Scott heard yelling, including a man saying, 

“Get out of my car, bitch,” and a woman screaming for help. 

While standing outside of her apartment, Scott observed, through 

an open car door, Brown pinning down T.J. in the back seat of a 

black Nissan Sentra. Brown and T.J. appeared to be wrestling, 

and Brown punched T.J. three times. Brown pulled T.J. out of 

the car and prevented her from reentering. T.J. continued to yell 

2 Investigator Sanchez did not know T.J.’s name, but he 

identified a photograph of her as the person he brought to the 

take-down area that night.
5

for help, and Scott telephoned 911. Brown threw some of T.J.’s

belongings out of the car and “sped off.”

Scott then observed T.J. sitting on the ground. T.J. was 

“throwing up or dry heaving, and . . . crying.” She also appeared 

to have urinated in the spot where she sat. About a minute after 

Scott approached T.J., Brown returned in the vehicle. He threw 

more of T.J.’s belongings out of the car window and left again. 

Scott guided T.J. out of the street to the porch of Scott’s

apartment, where T.J. sat until an ambulance arrived. While 

Scott was on the phone with the 911 dispatchers, Scott observed 

“a huge gash” on T.J.’s forehead.

T.J. did not testify at Brown’s trial. Scott identified 

photographs of T.J. as the woman she observed in the altercation 

with Brown that day. Scott also identified Brown as the 

assailant and identified a photograph of Houston’s Nissan Sentra 

as the car in which Brown assaulted T.J.

The prosecution played a recording of Scott’s 911 call for 

the jury. During the call, Scott described her observations to a

fire department dispatcher and then to an LAPD dispatcher. She 

also made three statements not within her own knowledge to the 

dispatchers. First, the fire department dispatcher asked Scott 

how old T.J. appeared to be. Scott estimated that T.J. was 22 

years old. After a statement from T.J. that was not transcribed, 

Scott exclaimed, “She’s seven—oh my God, she’s 17.”

Second, the call was transferred to the LAPD dispatcher, 

who asked Scott if Brown was T.J.’s boyfriend. Scott responded, 

“she told me no but she does know the, she says she does know 

the gentleman but I’m not sure about the relationship.”

Third, during her conversation with the LAPD dispatcher, 

Scott exclaimed, “Are you serious?!” The dispatcher asked, “What 
6

did she say, what did she say?” Scott responded, “She was saying 

that—because I was asking, because they were parked in front of 

my apartment when I came and I was asking how long was she 

here fighting with this man before I came. And she was saying 

they were actually somewhere else when the altercation started 

and that’s where he actually like busted her head open.”

Officer Edwards Questions T.J.

While the paramedics treated T.J. for the injury to her 

forehead, Officer Edwards spoke with her. Out of the presence of 

the jury, the trial court reviewed a video recording of the 

discussion between the officer and T.J., and found that while they 

spoke, T.J.’s respiration was “obviously quite labored,” and she 

had tears streaking down her face. The prosecution played the 

following portion of their recorded conversation for the jury:

3

“[Officer] Edwards: Okay. And what happened today?

“[T.]J.: . . .

“[Officer] Edwards: Were you working?

“T.]J.: [shakes head negatively] I didn’t want to, that’s why 

this happened.

“[Officer] Edwards: Okay, did you know that’s what you 

were coming out here for?

“[T.]J.: . . .

“[Officer] Edwards: It’s okay if you were. I’m just trying to 

get the full story so I understand.

“[T.]J.: He told me to get out the car on 95th, on 90th and 

Figueroa and I said no, I didn’t want to.

“[Officer] Edwards: Okay.

3 The nonverbal descriptions included below are reflected in 

the transcript that was provided to the jury.
7

“[T.]J.: And he said, and he asked one more time and he 

said, ‘If you don’t get out, I’m gonna hurt you.’ I said, ‘But I 

really don’t wanna go. I don’t feel comfortable.’ And then, he was 

like, ‘You take too long to get dressed. Now, you don’t wanna get 

out my car?!’ And then he just start[ed] hitting me. And then we 

pulled over like three blocks down in the back street somewhere. 

I think he made a right or something. I’m not sure. We pulled a 

few blocks down and he hit me in my head again and then it just 

split open and it start squirting, blood start squirting out. Blood 

got in my eye and I just blacked out. And the next thing you 

know, I was over here. And he was on top of me, like, ‘Get out my 

car!’ Like, ‘Go!’

“[Officer] Edwards: What did he hit you in the head with?

“[T.]J.: [makes a fist with left hand] His hand; he punched 

me.

“[Officer] Edwards: Okay, so this was from his fist 

[pointing to cut on victim’s forehead]. He didn’t hit you with any 

objects?

“[T.]J.: [shakes head negatively]

“[Officer] Edwards: Okay. And then he drove you over 

here and that’s when he threw you out?

“[T.]J.: [nodding head affirmatively]

“[Officer] Edwards: Was he hitting you over here too?

“[T.]J.: Yeah. I asked him to take me to the hospital or 

something because of my head was like . . . . And he was like,

‘No, walk,’ or something. So, then he just started like, hitting me 

again and then he said, ‘I feel like killing you right now!’ So, 

that’s when he was like trying to throw me out the car. I was 

getting like hit so I couldn’t see what was coming.”
8

At trial, Officer Edwards also testified that T.J. directed 

the officers to a corner of 90th and Figueroa Streets, where they 

found T.J.’s cell phone lying in the street.

D. Sexual Assault Examination of T.J.

On July 17, 2018, a nurse conducted a sexual assault 

examination of T.J. During the examination, the nurse observed 

bruising on T.J.’s right forearm, left shoulder, back of her left 

shoulder, left eye, chin, and inside her left cheek; a scratch about 

eight centimeters long on her upper left breast; a cut above her 

left eye; and an abrasion inside her left cheek. The nurse also 

took several DNA sample swabs, which revealed Brown’s DNA in 

anal and vaginal swab samples taken from T.J.

E. Officers Arrest Brown

On July 20, 2018, Detective Jose Rodriguez and two of his 

partners located Brown at an address on Paramount Boulevard 

and recovered from him a set of car keys belonging to Houston. 

Houston’s black Nissan Sentra was across the street. While 

detaining Brown, the officers photographed a diamond tattoo on 

the right side of Brown’s face, below his eye. Brown denied 

knowing T.J. When Detective Rodriguez asked whether Brown

was at the location where Scott’s apartment was located, Brown 

responded that if his GPS showed that Brown was there, then he 

was there.

F. Testimony of W.F. and M.W.

In 2014, when W.F. was 14 years old, she worked as a 

prostitute for Brown. During the time she worked for him, W.F. 

lived at Brown’s house and he provided her anything she needed. 

Brown educated W.F. about how to behave while working for 

him. While working for him as a prostitute, Brown took W.F. to 
9

an area on Figueroa Street, where she acknowledged prostitution 

is commonly practiced. W.F. also testified that M.W. worked for 

Brown as a prostitute, and stated that it was W.F.’s idea that 

M.W. do so. W.F. did not reveal their true ages to Brown, telling 

him she was 17 years old, and M.W. was 16 years old.

M.W. testified that in 2014, when she was 14 years old, she 

met Brown through her friend W.F. Shortly after meeting 

Brown, M.W. and Brown were arrested. At trial, M.W.

repeatedly denied working as a prostitute for Brown. However, 

the prosecution played a 2014 audio recording between M.W. and 

Detective Satwan Johnson for the jury. During that recording, 

M.W. told Detective Johnson she provided money she earned 

from prostitution to Brown, and Brown purchased clothes for her 

to use when she worked as a prostitute.

G. Testimony of the Prosecution’s Expert Witness

Detective Johnson testified as the prosecution’s human 

trafficking expert. He explained that individuals known as 

pimps may persuade, entice, or manipulate young girls and 

women into the commercial sex trade. Some pimps, known as 

Romeo or boyfriend pimps, present themselves as someone who 

cares for the woman and may clothe her, feed her, or house her. 

In this way, the pimp systematically gains her trust and 

convinces her to work for him as a prostitute and give him any 

money she earns. Other pimps, known as gorilla pimps, use 

aggression and violence to attain compliance with their demands, 

which could include punching, slapping, or hitting with a belt. 

The majority of pimps are a hybrid between these two types.

According to Detective Johnson, the area along Figueroa 

Street intersected by the streets numbered in the 90s is a “pimp-
10

controlled” area, which is an area that a gang or a number of 

pimps control.

Detective Johnson explained that pimps typically require 

their prostitutes to get a tattoo on their face as a way of branding 

them, to show other pimps they are his “property.” He further 

testified that T.J. had a diamond tattoo on her forehead, which he 

opined was a brand. Detective Johnson opined that another 

tattoo on T.J.’s arm depicting the word “loyalty” referred to her 

loyalty to her pimp.

Detective Johnson also reviewed a number of Brown’s 

Instagram posts under the pseudonym “Diamond Dave” and 

described how each related to pimping. For example, one post 

stated, “I been done with 9 to 5. Bitch it’s 304’s [sic] only.”

Detective Johnson testified 304 spells out the word “hoe,” a slang 

term for a prostitute. In another post, Brown stated, “Can’t wait 

to break this bitch,” which Detective Johnson explained meant to 

take money from a prostitute after she committed an act of 

prostitution. Another post stated, “I can honestly say I 

appreciate ma bitches. Keep it up lil [sic] hoes,” and included a 

picture of several feet. Detective Johnson stated that the picture 

of the feet alluded to the expression “ten toes down,” which refers 

to a prostitute making money for her pimp.

H. T.J.’s Birth Certificate

The trial court admitted T.J.’s birth certificate as proof that 

she was 17 years old at the time of the charged offense.
11

DISCUSSION

A. The Trial Court Did Not Err in Admitting the 911

Recording

Brown contends the trial court erred in admitting the

recording of Scott’s 911 call in violation of his Sixth Amendment

right to confrontation. During trial, Brown objected to the 

introduction of the 911 recording on the ground that it did not 

qualify as a spontaneous statement and was precluded by the 

decision in Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 

1354, 158 L.Ed.2d 177] (Crawford).

In Crawford, the Supreme Court noted a difference 

between testimonial and nontestimonial out-of-court statements,

and clarified that testimonial statements are the primary object 

of the Confrontation Clause. (Crawford, supra, 541 U.S. at 

pp. 51-53.) In Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 

2266, 165 L.Ed.2d 224), the Supreme Court provided further 

clarification concerning the type of statements that are deemed to 

be testimonial, holding as follows: “Statements are 

nontestimonial when made in the course of police interrogation 

under circumstances objectively indicating that the primary 

purpose of the interrogation is to enable police assistance to meet 

an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is 

to establish or prove past events potentially relevant to later 

criminal prosecution.” (Id. at p. 822, fn. omitted.)

In Michigan v. Bryant (2011) 562 U.S. 344 [131 S.Ct. 1143, 

179 L.Ed.2d 93], the Supreme Court again recognized that “not 

all ‘interrogations by law enforcement officers’ [citation] are 

subject to the Confrontation Clause.” (Id. at p. 355, fn. omitted.) 
12

Relying on the analysis in Bryant, our state Supreme Court

summarized six guidelines courts should consider in examining 

the primary purpose of an interrogation. (People v. Blacksher

(2011) 52 Cal.4th 769, 813-815.) First, “[t]he court must 

objectively evaluate the circumstances of the encounter along 

with the statements and actions of the parties.” (Id. at p. 813.) 

Second, “[t]he court should consider whether an ‘ “ongoing 

emergency” ’ exists, or appears to exist, when the statement was

made.” (Id. at p. 814.) Third, “[w]hether an ongoing emergency 

exists is a ‘highly context-dependent inquiry.’ [Citation.] Even 

when a threat to an initial victim is over, a threat to first 

responders and the public may still exist.” (Ibid.) Fourth, “[t]he 

medical condition of the declarant is a relevant consideration, as 

it bears on both the injured declarant’s purpose in speaking and 

the potential scope of the emergency.” (Ibid.) Fifth, “[a] 

nontestimonial encounter addressing an emergency may evolve,

converting subsequent statements into testimonial ones.” (Ibid.) 

“Finally, regardless of the existence of an emergency, the 

informality of the statement and the circumstances of its 

acquisition are important considerations. Inquiries that are 

conducted in a disorganized way and in turbulent circumstances 

are distinguishable from a jailhouse interview, as in Crawford, or 

the sequestered and formal preparation of an affidavit . . . . 

[Citation.]” (Id. at p. 815.)

Viewed objectively, T.J.’s statements to Scott, as relayed by

Scott to the dispatchers, were not elicited by Scott as part of a 

formal investigation. Further, the circumstances during Scott’s 

911 call indicated there was an ongoing emergency. At the start 

of the call, Scott advised that a woman had been beaten. The 

initial dispatcher’s questions focused on ascertaining the location 
13

of the incident, the extent of the victim’s injuries, and the 

whereabouts of the assailant. Scott’s second discussion with the 

LAPD dispatcher centered on a description of the assailant, who 

was still at large, and an assessment of any weapons used during 

the attack. These questions were posed in response to a report of 

a violent event and were necessary to establish the scope of the 

emergency, and to assist in coordinating a response by emergency 

services personnel. They “were the exact type of questions

necessary to allow the police to ‘ “assess the situation, the threat 

to their own safety, and possible danger to the potential victim” ’ 

and to the public.” (Michigan v. Bryant, supra, 562 U.S. at 

p. 376, quoting Davis v. Washington, supra, 547 U.S. at p. 832). 

Therefore, the statements during the 911 call were 

nontestimonial and did not implicate the Confrontation Clause.

B. The Trial Court Did Not Err in Admitting the Body

Camera Video

Brown also challenges the admission of the body camera 

recording of the interaction between Officer Edwards and T.J. on 

the ground that its admission violated the Confrontation Clause. 

While Brown asserted the Confrontation Clause argument under 

Crawford with respect to the 911 call, he failed to squarely raise 

a Crawford objection with respect to the body camera recording. 

We conclude that Brown forfeited his challenge under the 

Confrontation Clause. (People v. Alvarez (1996) 14 Cal.4th 155, 

186 [“ ‘ “questions relating to the admissibility of evidence will 

not be reviewed on appeal in the absence of a specific and timely 

objection in the trial court on the ground sought to be urged on 

appeal” ’ ”].) We nonetheless exercise our discretion to consider 

this issue on the merits. (People v. Denard (2015) 242 

Cal.App.4th 1012, 1030, fn. 10 [“where an otherwise forfeited 
14

claim presents an important question of constitutional law or a 

substantial right, the appellate court may exercise discretion to 

review the claim”].)

The circumstances of the encounter between T.J. and 

Officer Edwards demonstrate the primary purpose of Officer 

Edwards’ questioning was not to gather evidence for trial. At the 

time Officer Edwards began to question T.J., she could not yet 

conclude that the emergency had ended and that there was no 

threat of violence to law enforcement or the public. Although the 

record does not reflect how much time had elapsed since the 

assault, the fact that T.J. continued to have labored respiration 

and had tears streaming down her face, suggests that Officer 

Edwards spoke to T.J. close in time to the assault. Officer 

Edwards did not know who the assailant was, his relationship to 

T.J., what he had used to injure T.J., whether the assailant

would return to the location a third time, or whether he was 

likely to injure others.

Further, “the informality of the statement and the 

circumstances of its acquisition” also weigh in favor of finding the 

statements were nontestimonial. (People v. Blacksher, supra, 52 

Cal.4th at p. 815.) T.J. made her statements while she was in 

distress in the back of an ambulance. The statements were not 

made during a structured question and response interaction. 

Rather, one of the things that is striking about T.J.’s statements 

is that she made them during a lengthy narrative, not directly 

responsive to the immediate “yes or no” question put to her by 

Officer Edwards. Based on the surrounding circumstances, we 

conclude the statements were not testimonial. (See, e.g.,

Michigan v. Bryant, supra, 562 U.S. at pp. 376-377 [holding 

shooting victim’s statements were nontestimonial when he was 
15

questioned in a gas station parking lot prior to the arrival of 

emergency medical services, by multiple officers in a disorganized 

fashion]; People v. Brenn (2007) 152 Cal.App.4th 166, 178 

[holding stabbing victim’s answers to police questions as he 

waited for paramedics were not testimonial although police had 

arrested assailant moments before].)

C. Any Error in Admitting the 911 Recording or Body

Camera Video Was Harmless

Assuming, arguendo, that the recordings constitute

testimonial hearsay, a violation of the Confrontation Clause is 

subject to review to determine if the error was harmless beyond a 

reasonable doubt. (People v. Garton (2018) 4 Cal.5th 485, 507,

citing Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 

824, 17 L.Ed.2d 705].) In determining whether the error is 

harmless, we consider “ ‘the importance of the witness’ testimony 

in the prosecution’s case, whether the testimony was cumulative, 

the presence or absence of evidence corroborating or contradicting 

the testimony of the witness on material points, the extent of 

cross-examination otherwise permitted, and, of course, the 

overall strength of the prosecution’s case.’ ” (People v. Mitchell 

(2005) 131 Cal.App.4th 1210, 1225, fn. omitted, quoting Delaware 

v. Van Arsdall (1986) 475 U.S. 673, 684 [106 S.Ct. 1431, 89 

L.Ed.2d 674].)

The record demonstrates the statements on the 911 and 

body camera recordings were duplicative of other evidence at 

trial. T.J.’s birth certificate established she was a minor on 

July 16, 2018. Investigator Sanchez’s testimony concerning his 

arrest of T.J. just one month earlier in June 2018 for prostitution 

established that T.J. recently had worked as a prostitute. 

Houston’s testimony that she saw a photograph of T.J. on 
16

Brown’s cell phone and texts of a sexual nature between them, as 

well as the DNA samples, established that Brown and T.J. knew 

each other and had a sexual relationship.

Further, the prosecution’s expert, Detective Johnson, 

testified that pimps brand their workers. He opined the diamond 

tattoo on T.J.’s forehead was such a brand. Indeed, the evidence

demonstrated Brown uses the Instagram name “Diamond Dave”

and also has a diamond tattoo on his face. Detective Johnson 

opined that Brown engaged in communications on Instagram 

typical of pimps. He also testified that the area where Brown 

attacked T.J.—and where her cell phone was found—was a wellknown pimp-controlled area.

Moreover, Detective Johnson testified that pimps use 

violence against their workers to control them, including 

punching them. Scott observed Brown punching T.J. three times 

one city-block away from the pimp-controlled neighborhood. T.J. 

suffered from several cuts and bruises as well as “a huge gash” on 

her forehead.

Taken together, the evidence is sufficient to establish 

beyond a reasonable doubt that Brown induced a minor to engage 

in an act of prostitution by use of force, fear or violence; inflicted 

great bodily injury on T.J. during the course of an assault; and 

engaged in sexual intercourse with her. Based on the strength of 

the prosecution’s case, any error in admitting the two recordings 

is harmless.

D. The Trial Court Did Not Abuse Its Discretion in 

Permitting Testimony by W.F. and M.W.

At trial, the People presented W.F.’s and M.W.’s testimony

pursuant to Evidence Code section 1108, subdivision (a), to show

that Brown had a propensity to engage in the trafficking of 
17

minors for commercial sex.4 Brown argues the admission of this

evidence concerning two 14-year-old girls was so inflammatory

and prejudicial that it rendered his trial fundamentally unfair, in 

violation of the federal due process clause.

“The admission of relevant evidence will not offend due 

process unless the evidence is so prejudicial as to render the 

defendant’s trial fundamentally unfair.” (People v. Falsetta

(1999) 21 Cal.4th 903, 913.) Under Evidence Code section 1108, a 

court may admit propensity evidence of a sexual offense if it “is 

not inadmissible pursuant to [Evidence Code s]ection 352.” (Id., 

subd. (a).) Thus, “ ‘[t]he evidence is presumed admissible and is 

to be excluded only if its prejudicial effect substantially 

outweighs its probative value in showing the defendant’s 

disposition to commit the charged sex offense or other relevant 

matters.’ [Citation.]” (People v. Williams (2016) 1 Cal.5th 1166, 

1196.)

“ ‘ “In applying [Evidence Code] section 352, ‘prejudicial’ is 

not synonymous with ‘damaging.’ ” ’ ” (People v. Hollie (2010) 180 

Cal.App.4th 1262, 1276.) “ ‘ “Undue prejudice” refers not to 

evidence that proves guilt, but to evidence that prompts an 

emotional reaction against the defendant and tends to cause the 

trier of fact to decide the case on an improper basis.’ ” (Id. at. 

pp. 1276-1277.)

4 Evidence Code section 1108, subdivision (a), states: “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.”
18

We review the admission of evidence under Evidence Code 

section 1108 for an abuse of discretion. (People v. Williams, 

supra, 1 Cal.5th at pp. 1196-1197.)

The evidence of Brown’s involvement with W.F. and M.W. 

was relevant to establish Brown’s manner of conducting his 

pimping operation and managing the prostitutes who worked for 

him. Their testimony showed that he had worked with minors in 

the past and developed personal relationships with them, as he 

did with T.J. Also, W.F. testified that she worked in the vicinity 

of Figueroa Street where prostitutes commonly work, the same 

area where T.J.’s cell phone was found, and a block away from 

where Scott observed Brown assault T.J. This evidence tended to 

corroborate the charge of trafficking of a minor for commercial 

sex involving T.J. (See People v. Hollie, supra, 180 Cal.App.4th 

at p. 1274 [“ ‘The principal factor affecting the probative value of 

an uncharged act is its similarity to the charged offense’ ”].)5

Although Brown focuses on W.F.’s and M.W.’s actual ages, 

the jury learned that W.F. lied to Brown and told him she was 17 

years old and M.W. was 16 years old. Also, their testimony 

centered on Brown’s day to day pimping operations and did not 

include any reference to the use of force, fear, or violence. We

conclude that although the testimony by W.F. and M.W. may 

have been damaging, it was not so prejudicial as to outweigh its 

probative value. (People v. Hollie, supra, 180 Cal.App.4th at 

5 The offenses Brown committed with W.F. and M.W. in 

2014 were not remote in time because Brown was imprisoned 

during the interim period for convictions related to W.F. and 

M.W. (See People v. Hollie, supra, 180 Cal.App.4th at p. 1276 

[two sex offense incidents, committed within two years of each 

other, were not remote in time].)
19

pp. 1276-1277.) Therefore, the trial court did not abuse its 

discretion, and the admission of the evidence did not render the

trial fundamentally unfair under the due process clause. 

Moreover, for the reasons discussed above, due to the strength of 

the prosecution’s case, any error was harmless.

Because we have found no error in the trial court’s 

admission of the recordings or W.F.’s or M.W.’s testimony, 

Brown’s cumulative error argument fails. (See People v. Myles

(2012) 53 Cal.4th 1181, 1225; People v. Cunningham (2001) 25 

Cal.4th 926, 1009.)

E. The One-year Sentencing Enhancement Imposed 

Under Section 667.5 Must be Stricken

At the time of Brown’s sentencing, section 667.5, 

subdivision (b), imposed a one-year enhancement for each prior 

separate prison term served. Effective January 1, 2020, Senate 

Bill No. 136 amended section 667.5, subdivision (b), to apply only 

when the defendant served a “separate prison term for a sexually 

violent offense as defined in subdivision (b) of Section 6600 of the 

Welfare and Institutions Code.” (§ 667.5, subd. (b), italics added; 

see Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) Brown’s prior

prison term was based on a conviction of human trafficking under 

section 236.1, subdivision (c). That crime is not enumerated 

under Welfare and Institutions Code section 6600, subdivision 

(b). Thus, under the newly-amended version of section 667.5, a 

one-year sentencing enhancement could not be imposed.

Because the judgment against Brown is not yet final, he is 

entitled to the retroactive benefit of the change in the law. 

(People v. Lopez (2019) 42 Cal.App.5th 337, 341 [finding Sen. Bill 

No. 136 applies to non-final judgments on appeal]; see In re 

Estrada (1965) 63 Cal.2d 740, 744-746 [absent evidence of 
20

legislative intent to the contrary, ameliorative statutory 

amendments apply to all defendants whose judgments are not yet 

final].)

DISPOSITION

The matter is remanded to the superior court with 

instructions to strike the one-year enhancement imposed under 

section 667.5, subdivision (b). In all other respects, the judgment 

is affirmed. The trial court is directed to prepare an amended 

abstract of judgment and forward a certified copy to the 

Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.