The opinion
Filed 1/9/26 P. v. Brown CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F088589
Plaintiff and Respondent,
(Super. Ct. No. BF197977A)
v.
JIMMY RAY BROWN, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and Hannah
Janigian Chavez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Jimmy Ray Brown was convicted of human trafficking a minor,
pandering a minor, and pimping a minor. On appeal, he contends the trial court
committed instructional error by (1) instructing the jury that mistake of the target’s age
was not a defense to the pandering and pimping counts, and (2) instructing the jury that it
did not matter, for purposes of pandering, whether the target was already a prostitute. He
further contends the court made an erroneous finding during sentencing and requests we
modify the judgment. We affirm.
PROCEDURAL SUMMARY
On July 8, 2024, the District Attorney of Kern County filed an amended
information charging defendant with human trafficking of a minor for a sex act
(Pen. Code, § 236.1, subd. (c)(1);1 count 1); pandering by fraud or duress a minor under
16 years of age (§ 266i, subd. (b)(2); count 2); pimping a minor under 16 years of age
(§ 266h, subd. (b)(2); count 3); and procuring a child to engage in a lewd act (§ 266j;
count 4). As to all counts, the amended information alleged multiple aggravating
circumstances (Cal. Rules of Court, rule 4.421(a)–(b)). It was also alleged as to all
counts that defendant had a prior “strike” conviction within the meaning of the “Three
Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).
On July 30, 2024, the jury found defendant guilty on counts 1 through 3. The jury
found defendant not guilty of count 4. In a bifurcated proceeding, the trial court found
true the prior strike conviction allegation and several aggravating circumstances.
On August 27, 2024, the trial court sentenced defendant on count 1 to the middle
term of eight years, doubled to 16 years pursuant to the Three Strikes law. The sentence
on the remaining counts was imposed but stayed pursuant to section 654.
Defendant filed a notice of appeal on September 3, 2024.
1 All further statutory references are to the Penal Code.
2.
FACTUAL SUMMARY
The People’s Case
Defendant’s Arrest
On January 27, 2024, Bakersfield Police Officer Christian Hernandez was driving
on Union Avenue in Bakersfield around 8:23 p.m. Hernandez testified this area, known
as the “Blade” (hereafter Blade), was an area where sex workers congregate for
prostitution in nearby motels. Hernandez saw a car leave one motel before immediately
going to another motel. Finding it suspicious, Hernandez followed the car once it left
that motel. He observed the license plate was not properly illuminated in violation of the
Vehicle Code and pulled the car over.
Hernandez approached the car, which was driven by defendant. Hernandez asked
defendant to roll down the back window. Hernandez saw a female in the backseat of the
car wearing a neon green bra and a thong. Based on his training and prior investigations
of activity on the Blade, Hernandez believed the female, A.G., was a sex worker and
defendant was possibly her pimp. Hernandez observed on defendant’s phone a missed
call and text message from the same number. The message stated: “It ain’t trickin. If
you got it, where my money at?” The message was followed by several “emoji” images
depicting a hand and money. Based off his experience, Hernandez noted these emojis
were common symbols used in human trafficking operations. Hernandez understood the
message to mean defendant was being asked to give the person money. Defendant was
arrested with $1,000 in currency in his wallet and $843 in currency in his pocket.
A.G.
A.G. testified at defendant’s trial pursuant to an immunity agreement. A.G. was
15 years old on the day of the incident and at trial. A.G. became a sex worker in
Sacramento in December 2022. Between then and the night of defendant’s arrest, A.G.
had worked in cities across the state.
3.
Around September or October of 2023, A.G. met defendant while she was
working on the Blade. During their conversation, defendant hinted at A.G. working for
him. The two exchanged phone numbers. A.G. texted defendant afterwards, saying she
wanted to start “being with him” and giving him her money. She wanted protection
during the dates as well as transportation to and from the Blade. Defendant accepted her
offer to work for him.
A.G. worked for defendant two separate times. On January 27, 2024, which was
her second time working for him, A.G. made about $700 in currency and $100 through
electronic payment. A.G. stopped working for defendant after that night because he left
and was not around anymore.
Defense Case
Defendant called A.G. to testify. A.G. testified she lied to people about her age
while engaging in prostitution. A.G. lied to defendant about her age, as she had told him
she was 19 years old. Online commercial sex advertisements, which contained pictures
and details of A.G., represented she was 19 or 23 years old.
DISCUSSION
I. INSTRUCTIONAL ERROR
A. Additional Background
The proposed jury instructions were discussed at a hearing outside the presence of
the jury. The trial court stated it would instruct the jury with CALCRIM No. 1244
(Causing Minor to Engage in Commercial Sex Act) for count 1. As relevant here, the
instruction states: “Being mistaken about the other person’s age is not a defense to this
crime.” (See CALCRIM No. 1244.) The court noted it would instruct the jury with
CALCRIM No. 1151 (Pandering) for count 2 and CALCRIM No. 1150 (Pimping) for
count 3. In each of these two counts, the court intended to give the following pinpoint
instruction: “Being mistaken about the other person’s age is not a defense to this crime.”
4.
Defense counsel objected to the pinpoint instruction.2 Defense counsel argued the
instruction was not included in the standard instruction and was not necessary. The trial
court disagreed: “It is, arguably, a defense to [c]ount 4 so it was important that it be
referenced in [c]ount 1, which it already is, and in the jury instruction in [c]ounts 2 and 3,
which is in the use notes but not in the specific instruction.” The court read the pinpoint
instruction to the jury for both counts 2 and 3.
B. Applicable Law and Analysis
“Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact that, we believe, is however predominantly
legal. As such, it should be examined without deference.” (People v. Waidla (2000)
22 Cal.4th 690, 733; People v. Shaw (2002) 97 Cal.App.4th 833, 838 [“[A]ssertions of
instructional error are reviewed de novo.”].)
i. Pandering and Pimping — Mistake of Age is Not a Defense
Defendant contends the trial court erred by instructing the jury with the pinpoint
instruction in counts 2 and 3. He argues being reasonably mistaken about the victim’s
age is a defense to those counts. The People disagree, as do we.
Section 26 states, in pertinent part, that “[a]ll persons are capable of committing
crimes” except “[p]ersons who committed the act or made the omission charged under an
ignorance or mistake of fact, which disproves any criminal intent.” The mistake of fact
defense thus is “an assertion by the defendant that a particular factual error in his
perception of the world led him to lack the mens rea required for the crime.”
(People v. Hendrix (2022) 13 Cal.5th 933, 940; People v. Hernandez (1964) 61 Cal.2d
2 Defendant objected to the pinpoint instruction on the ground that the instruction
was unnecessary, not that the instruction was an incorrect statement of law. Moreover,
although the same language appears in both count 2 and count 3, it appears defense
counsel only objected to the pinpoint instruction in count 3. The People do not contend
the issue was forfeited in any respect. We address the merits of his argument on appeal
as to both counts.
5.
529, 535 (Hernandez) [“ ‘At common law an honest and reasonable belief in the
existence of circumstances, which, if true, would make the act for which the person is
indicted an innocent act, has always been held to be a good defense.’ ”].) Generally, “a
mistake of fact defense is not available unless the mistake disproves an element of the
offense.” (In re Jennings (2004) 34 Cal.4th 254, 277.)
The act of pandering is proscribed by section 266i. Section 266i has six subparts
which define the different circumstances under which the crime may be committed.
(People v. Campbell (2020) 51 Cal.App.5th 463, 485.) As relevant here, section 266i,
subdivision (a)(1) states that a person is guilty of pandering if he “[p]rocures another
person for the purpose of prostitution.” In this context, the term “procures” means
“ ‘assisting, inducing, persuading or encouraging’ [another] to engage in prostitution.”
(Campbell, at p. 485.) Subdivision (b) of that section is specific to the act of pandering
with a minor. It states, in pertinent part: “Any person who does any of the acts described
in subdivision (a) with another person who is a minor is guilty of pandering, a felony ….”
(§ 266i, subd. (b).)
The act of pimping is proscribed by section 266h, subdivision (a). (See § 266h,
subd. (a); People v. Scally (2015) 243 Cal.App.4th 285, 292.) Subdivision (b) of that
section states, in pertinent part: “Any person who, knowing another person is a
prostitute, lives or derives support or maintenance in whole or in part from the earnings
or proceeds of the person’s prostitution, … or who solicits or receives compensation for
soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a
felony ….” (§ 266h, subd. (b).)
Defendant argues being reasonably mistaken about A.G.’s age is a defense to
pandering a minor and pimping a minor. Not so. The act of pandering or pimping a
person is unlawful regardless of that person’s age. (§ 266i, subd. (a) [criminalizing the
act of pandering]; § 266h, subd. (a) [criminalizing the act of pimping].) When that
person is a minor, the statutes affix harsher punishments for the unlawful activity.
6.
(§§ 266i, subd. (b), 266h, subd. (b).) Importantly, a conviction for pandering a minor or
pimping a minor does not require the defendant’s knowledge of the person’s age. (See
People v. Branch (2010) 184 Cal.App.4th 516, 522 (Branch) [“the criminal intent for the
crimes of attempted pimping and pandering of a minor is the attempt to pimp and
pander”].) The age of the person being pandered or pimped only affects the severity of
the sentence, not the criminality of the conduct. As such, being reasonably mistaken
about the person’s age is not a defense to pandering a minor or pimping a minor. (See In
re Jennings, supra, 34 Cal.4th at p. 277; People v. Richards (2017) 18 Cal.App.5th 549,
563 [“[W]hen a mistake concerns only the severity of an offense, and the defendant’s
conduct remains unlawful even under the defendant’s mistaken view of the facts, courts
have not recognized mistake as a defense.”].)
Defendant observes sections 266i and 266h do not prohibit the mistake of fact
defense regarding the age of the victim. Defendant further observes such a prohibition
has been made explicit in other sections of the Penal Code. For example, in
section 236.1, the statute criminalizing human trafficking of a minor, the section states:
“Mistake of fact as to the age of a victim of human trafficking who is a minor at the time
of the commission of the offense is not a defense to a criminal prosecution under this
section.” (§ 236.1, subd. (f).) Thus, defendant argues, the Legislature could have added
a similar provision to sections 266i and 266h if it intended to prohibit the mistake of fact
defense as to the victim’s age.
It is true that distinctions in related statutory provisions may suggest a meaningful
difference. (See Russello v. U.S. (1983) 464 U.S. 16, 23 [“ ‘[W]here Congress includes
particular language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’ ”].) However, we are not convinced the absence of
language prohibiting the mistake of fact defense in sections 266i and 266h suggests the
Legislature intended its availability for prosecutions under those sections. The mistake of
7.
fact defense disproves criminal intent. (§ 26; People v. Lawson (2013) 215 Cal.App.4th
108, 111 [“The mistake-of-fact defense operates to negate the requisite criminal intent or
mens rea element of the crime”].) Sections 266h and 266i plainly do not require the
defendant to know the victim was a minor. (§§ 266h, subd. (b), 266i, subd. (b).) If the
Legislature intended for the mistake of fact defense to be available for these crimes, the
Legislature could have added such a knowledge requirement.
Defendant also argues Branch was wrongly decided. He believes one must
specifically intend to pander or pimp a minor to violate sections 266i or 266h. We
disagree. As discussed above, no such intent is required for a conviction under either
statute. Defendant fails to provide any authority supporting the conclusion that a
defendant must know the age of the person to be convicted of pandering or pimping a
minor. To the contrary, authority exists supporting the opposite conclusion. (See, e.g.,
People v. Clark (2019) 43 Cal.App.5th 270, 287 [knowledge of person’s age not a listed
element of pimping a minor]; People v. Banks (2023) 97 Cal.App.5th 376, 388
[knowledge of person’s age not a listed element of pandering a minor].) Moreover,
Branch’s holding has been accepted by subsequent cases. (See People v. Calhoun (2019)
38 Cal.App.5th 275, 318 [mistake of fact about the minor victim’s age is not a defense to
pandering a child or pimping a child]; People v. Richards, supra, 18 Cal.App.5th at
p. 563.) Insofar as defendant suggests our Supreme Court declined to endorse Branch in
People v. Moses (2020) 10 Cal.5th 893, we note the Moses court neither endorsed nor
refuted Branch and instead distinguished Branch as inapplicable to the facts in Moses.
(Moses, at p. 912 [“Assuming without deciding that Branch’s interpretation of
section 266h is correct, the case is distinguishable because it did not involve an issue of
factual impossibility”].)
Finally, defendant suggests Hernandez compels a different result. It does not. In
Hernandez, our Supreme Court considered the mistake of fact defense to a conviction
under section 261, which defined statutory rape as sex with a female under the age of 18.
8.
(Hernandez, supra, 61 Cal.2d at pp. 529–530.) The Hernandez court concluded a
reasonable and good faith mistake as to the victim’s age could eliminate the intent
necessary for a conviction under section 261 because the defendant’s belief, if true,
would have made “the act for which the person is indicted an innocent act ….” (Id. at
pp. 535–536.)
Here, by contrast, if defendant’s mistaken belief was true and A.G. was 18 years
of age or older, his conduct would still be criminally culpable. (§ 266i, subd. (a); § 266h,
subd. (a).) Defendant’s “honest and reasonable belief,” if true, would not “make the act
for which [he] is indicted an innocent act ….” (Hernandez, supra, 61 Cal.2d at p. 535.)
Thus, unlike in Hernandez, defendant’s belief here would only affect the severity of the
punishment. (See id. at p. 534; see also People v. Magpuso (1994) 23 Cal.App.4th 112,
118 [rejecting Hernandez-type defense because the defendant “was committing a
criminal act, with criminal intent, regardless of her belief as to [the victim]’s age”];
People v. Williams (1991) 233 Cal.App.3d 407, 411 [rejecting Hernandez-type defense
because “[s]elling cocaine to a minor falls within a category of crimes in which criminal
intent exists ‘regardless of a defendant’s mistaken belief or lack of knowledge ....’ ”].)
In sum, the trial court did not err by providing the pinpoint instruction on counts 2
and 3. We decline to consider whether any assumed error was prejudicial.
ii. Pandering – Already A Prostitute
Defendant contends the trial court committed instructional error on count 2 in
another respect. He argues CALCRIM No. 1151, which states that it does not matter
whether the person was already a prostitute, incorrectly stated the law. The People first
9.
contend defendant forfeited this claim. On the merits, the People contend the instruction
correctly stated the law. Addressing the claim on the merits, we agree with the People.3
Section 266i, subdivision (a)(2), provides, in relevant part, that a person who “[b]y
promises, threats, violence, or by any device or scheme, causes, induces, persuades, or
encourages another person to become a prostitute” is guilty of pandering. Our Supreme
Court held “the proscribed activity of encouraging someone ‘to become a prostitute,’ as
set forth in section 266i, subdivision (a)(2), includes encouragement of someone who is
already an active prostitute, or undercover police officer.” (People v. Zambia (2011)
51 Cal.4th 965, 981.) The court reasoned, “[t]he phrase ‘encourages another person to
become a prostitute’ can readily be understood to encompass the goal that the target
‘become a prostitute’ in the future for the benefit of the encourager or some other pimp.
(§ 266i, subd. (a)(2).) This interpretation of the pandering statute is consistent with long-
standing case law and the Legislature’s intent to combat pandering and prostitution.” (Id.
at p. 975; accord People v. Hashimoto (1976) 54 Cal.App.3d 862, 866 [“The purpose of
the anti-pandering statute [§ 266i] is to ‘cover all the various ramifications of the social
evil of pandering and include them all in the definition of the crime, with a view of
effectively combatting the evil sought to be condemned.’ ”].)
As defendant acknowledges, we are bound by the majority opinion in
People v. Zambia, supra, 51 Cal.4th 965. (See Auto Equity Sales, Inc. v. Superior Court
3 Generally, “a party may not complain on appeal that an instruction correct in law
and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.” (People v. Hudson (2006)
38 Cal.4th 1002, 1011.) Here, the People note defendant failed to raise an objection in
the trial court to the inclusion of the statement in the instruction. Defendant does not
dispute this in his reply. However, defendant’s claim on appeal is not subject to the
general rule of forfeiture because it challenges whether the instruction was correct in law.
(See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 4 [“Defendant’s claim, however,
is that the instruction is not ‘correct in law,’ and that it violated his right to due process of
law; the claim therefore is not of the type that must be preserved by objection.”].) As
such, we address his claim on the merits.
10.
(1962) 57 Cal.2d 450, 455.) Accordingly, we reject defendant’s claim. To the extent
defendant invites us to express disagreement with Zambia, we decline to do so.
II. MODIFY THE JUDGMENT
Defendant asks us to modify the judgment to strike the trial court’s finding that
defendant’s present conviction, human trafficking of a minor, is “a strike.” Defendant
argues the court “had no business making a finding that the present conviction will
constitute a strike for the purpose of a hypothetical future case.” The People respond that
the court’s finding was not improper. We agree with the People and decline to modify
the judgment.
“Section 1192.7, subdivision (c) enumerates those felony violations that constitute
serious felonies under California law. Where a defendant has been convicted of a serious
felony, reoffending may result in severe consequences: certain prior serious felony
convictions are strikes under the Three Strikes law [citations], and all prior serious felony
convictions subject a defendant to an additional five-year sentence enhancement if the
current offense is a serious felony.” (People v. Briceno (2004) 34 Cal.4th 451, 458.)
Effective January 1, 2024, Senate Bill No. 14 (2023–2024 Reg. Sess.) amended
section 1192.7 to, as relevant here, add human trafficking of a minor to the enumerated
list of serious felonies. (Stats. 2023, ch. 230, § 4; see § 1192.7, subd. (c)(42).)
Here, at sentencing, the trial court noted: “Count 1 of which [defendant] has been
convicted of is a strike.” We are not convinced this finding was improper. Senate Bill
No. 14 was in effect during defendant’s offense in January 2024 and his sentencing in
August 2024. The court was thus correct that the charge in count 1 was a “strike” offense
under the Three Strikes law. Importantly, there is no indication in the record that this
finding affected defendant’s sentencing. Although defendant’s middle term sentence in
count 1 was doubled under the Three Strikes law, the record makes clear that doubling
occurred as a result of the prior strike conviction from a separate offense. Additionally,
we note that, in the event defendant is convicted of another crime in the future, that
11.
sentencing court is not bound by this court’s finding. (See People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 529.) We see no need to modify the judgment.
DISPOSITION
The judgment is affirmed.
FRANSON, Acting P. J.
WE CONCUR:
SNAUFFER, J.
DE SANTOS, J.
12.