P. v. Davis

Filed 6/7/17 P. v. Davis CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
STEVEN ERIC DAVIS,
Defendant and Appellant.
B265537
(Los Angeles County
Super. Ct. No. TA136469)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa P. Magno, Judge. Affirmed in part and
reversed in part.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Shawn M. Webb and Ilana Herscovitz, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________

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Defendant Steven Eric Davis was charged with a single
count of pandering by procurement. (Pen. Code, § 266i, subd.
(a)(1)).1 The case was tried, however, on the theory that Davis
committed pandering by encouragement (id., subd. (a)(2)), and
the trial court instructed the jury on that theory. The verdict
form, which was tied to the charge and never was conformed to
the proof and instructions, states that the jury found Davis guilty
of pandering by procurement. Davis did not object to the
variance or the verdict form.
On appeal, Davis contends the evidence was insufficient to
support his pandering conviction and the trial court committed
prejudicial error in declining to instruct the jury on the lesser
included offense of attempted pandering. Evaluating these
claims under the rubric of pandering by encouragement, we
conclude that substantial evidence supports Davis’s pandering
conviction and that any error in the court’s failure to instruct on
attempted pandering was harmless.
Davis also challenges two separate one-year sentence
enhancements the trial court imposed based on prior felony
convictions for which he served prison terms (§ 667.5, subd. (b)).
Davis contends that these enhancements should be stricken
because, after the court imposed them, the felony convictions on
which they rested were reduced to misdemeanors pursuant to
Proposition 47, the Safe Neighborhoods and Schools Act of 2014
(§ 1170.18). We agree. In our view, the reduction of a felony
conviction to a misdemeanor under Proposition 47 invalidates a
sentence enhancement based on that conviction when the
1 Statutory references are to the Penal Code unless
otherwise stated.

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judgment of which the enhancement is a part has yet to become
final. Because the judgment in this case was not final when the
prior felony convictions on which the challenged enhancements
rested were reduced to misdemeanors, the enhancements must be
stricken from his sentence. The judgment is affirmed in all other
respects.
FACTUAL AND PROCEDURAL BACKGROUND
On April 7, 2015, the People filed an information charging
Davis with one count of pandering by procurement in violation of
section 266i, subdivision (a)(1). to the elements of pandering by
encouragement (§ 266i, subd. (a)(2)), and stated that the People
intended to prove that Davis encouraged an undercover law
enforcement officer to become a prostitute. Davis did not object
to the variance between the information and the theory on which
the prosecution proceeded at trial.2
A. The Prosecution’s Evidence of Pandering By Encouragement
1. The 2015 Undercover Investigation of Davis for
Pandering
In early February 2015, Detective Gary Furuyama of the
Los Angeles County Sheriff’s Department became aware of two
flyers that someone had posted at a Metrolink station in the City
of Compton. The flyers depicted the posterior of a woman in blue
shorts. They advertised work paying “[$]75.00 to [$]100.00 an
2 Davis’s counsel reserved an opening statement. She never
made one, however. And Davis did not testify at the trial or put
on a defense case.

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hour” with benefits including “housing hair nails smokes and
food.” One of the flyers also referred to “adult entertainment and
escort services.” Both flyers listed the same phone number for
interested persons to call. They identified the person to call as
“Shermen Williams.”
At the time he became aware of the flyers, Furuyama was
assigned to the vice detail of the sheriff’s department major
crimes unit. The vice detail is responsible for the investigation of
crimes of moral turpitude, including the recruitment of
prostitutes. Furuyama previously had conducted undercover
investigations arising from the posting of similar flyers.
Furuyama testified that, based on his experience, the type of
compensation promised in the flyers (hair and nail care, smokes,
and food) for purported “escort services” was a strong signal that
the person who posted the flyers was seeking to recruit persons
for prostitution.
Furuyama thus decided to conduct an undercover
investigation into the flyers. To that end, he sought the
assistance of Los Angeles County Sheriff’s Deputy Miesha
McClendon. Furuyama previously had worked with McClendon
on similar investigations. McClendon had been involved in 15 to
20 prior prostitution-related undercover investigations.
McClendon testified that, posing as an interested person,
on February 4, 2015, she called the phone number on the flyers.
She spoke with a man who stated that he was Shermen Williams,
the contact person listed on the flyers. This person turned out to
be Davis. McClendon asked Davis about the job that was
advertised on the flyers. In response, Davis asked if she wanted
to apply, and McClendon said that she did. Davis asked
McClendon what she looked like; she provided a physical

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description. Davis asked her to send him some pictures.
McClendon stated that she needed some information first. They
agreed to talk again later.
That evening, they spoke by phone. McClendon asked
Davis what kind of escort services the job entailed. Davis
responded that the flyers were “pretty straightforward” and,
“everybody know [sic] what escort service is.” McClendon stated
that a friend of hers “did some escort stuff and it was, like, you
know, she was fucking, and you know, she was doing this, that
but she was also doing, like, dancing and massaging.” Davis
responded, “Well, right, right.” He added, “So, all I can tell you
right now is that you already understand what the job was based
on, you know?” McClendon asked him, “what if I’m, like, not cute
and then, but I got some bomb ass fucking skills[?]” Davis
responded that he would “be the judge of it,” and used the word
“trick” to describe those for whom she would be providing
services.
The following day McClendon emailed photos of herself to
Davis, as he had requested. After Davis received the photos, the
two spoke again by phone. In that conversation, Davis
commented on McClendon’s physical appearance as depicted in
the photos. McClendon turned the subject of the conversation to
seeking more information from Davis about the job. In response,
Davis told her that all of the money she earned per hour would be
hers to keep. McClendon also asked Davis what he would get out
of the arrangement, to which Davis responded that McClendon
was “sounding like an investigator.” The two spoke several more
times over the next few days and agreed to meet in person at a
restaurant in Lynwood between 8:00 and 9:00 on the morning of
February 7, 2015.

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McClendon was the first to arrive at the restaurant that
morning. She wore a wire and waited for Davis in the far corner
of the restaurant. Furuyama was working undercover on the
scene as well, along with sheriff’s department deputies. Davis
arrived at the restaurant around 9:40 a.m. Shortly before
arriving, he called McClendon by phone from his car. He stated
that he was about to pull up and asked McClendon, “You not the
police, are you?” Davis said that he was concerned about that
possibility because the photographs McClendon had sent him did
not clearly show her face. McClendon responded that she was
concerned about the potential misuse of a photograph of her face
and that she would need to know Davis better before sending him
such a photograph. A short time later Davis called McClendon on
the phone again and asked her to meet him outside the
restaurant. McClendon stated that she would be more
comfortable meeting him inside the restaurant.
Within a few minutes after that, Davis entered the
restaurant and approached McClendon. Davis stated that they
should go outside, but McClendon said that she preferred to talk
with him inside the restaurant. After further conversation, Davis
stated, “I’m not comfortable talking to you here,” and asked
McClendon to go with him to his car. McClendon ignored the
request and steered the conversation to the nature of Davis’s
business. Davis stated that he could make a flyer with
McClendon’s picture on it, setting forth a price, the words “escort
service,” and a phone number. McClendon asked if there were
“other girls” and whether she would be “number 5 or 6 in line
when guys call.” Davis responded, “whoever is available with the
best schedule, all I could tell you is you’re available . . . it’s a 24-
hour service, it’s 24 hours, and not one worker is gonna be

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working for 24 hours. Follow me? That’s a lot of work.” Davis
next said, “Personally, I’m not into games . . . [a]ll I do is just . . .
street pimp.” McClendon asked what that meant. Davis laughed
and said, “Obviously I have my own creative ways of
saying . . . .”3 McClendon then said, “I’m the one doing all the
fucking,” to which Davis responded, “I’m gonna enjoy it.”
At some point during her conversation with Davis at the
restaurant, McClendon gave a signal to the sheriff’s deputies who
were present on the scene. The deputies approached the table
where Davis and McClendon were seated. They arrested Davis.
The deputies also searched Davis’s car. In it, they found between
50 and 100 flyers with images of women and the words “Jobs”
and “Qualifications.”
2. The Prior Undercover Investigation of Davis for
Pandering
In addition to Furuyama and McClendon, the People called
as a witness at trial Los Angeles Police Department Officer Erika
Kirk, who had conducted a previous undercover investigation of
Davis for pandering that led to Davis’s arrest and subsequent
conviction in 2009 for attempted pandering. Over Davis’s
objection, the trial court permitted Kirk to testify under Evidence
Code section 1101, subdivision (b), regarding Davis’s misconduct
in the prior case to prove that Davis intended to commit the
charged offense in this case.4 The court informed the jury that
3 According to the transcript of the recording admitted at
trial, ellipses indicate inaudible portions of the conversation.
4 On appeal, Davis does not challenge that ruling. Thus, we
do not address it.

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the parties stipulated that Davis was convicted of attempted
pandering based on the events described in Kirk’s testimony.
Kirk testified that her investigation arose from a flyer
Davis posted that contained the words, “Attention Ladies, Pimp”
and a photograph of a torso. Posing as an interested person, Kirk
called the phone number on the flyer. A man who turned out to
be Davis answered and asked her to “send a face pic.” Davis also
told her, “I have tricks that wanna spend big money,” referred to
himself as “your pimp,” and said, “We need to get you to work.”
After several phone calls and text messages over a period of
three weeks, Kirk arranged to meet Davis in a restaurant. When
they met there, Davis told Kirk that he would put her to work
along the Sepulveda corridor and in a casino, that she would
earn $300 an hour because he wanted to run a high-end business,
and that he would provide her with housing and take care of her,
including her hair and nails.
B. The Trial Court Instructs the Jury on Pandering by
Encouragement and Declines To Instruct on Attempted
Pandering by Encouragement
At the jury instruction conference, the People requested
that the trial court instruct the jury on pandering by
encouragement, not pandering by procurement. Davis did not
object. The court accepted the People’s request and instructed
the jury on pandering by encouragement.
Davis requested an instruction on the lesser included
offense of attempted pandering, which the court understood to
mean attempted pandering by encouragement The court declined
to give that instruction, stating that it did not “see how, with the
evidence presented in this trial, that any jury would convict on

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the lesser-included offense of attempted pandering and not on the
charged crime of pandering.”
In closing argument, both the prosecutor and Davis’s
counsel framed the case as involving alleged pandering by
encouragement and stated the central issue was whether Davis
encouraged McClendon to become a prostitute. Neither side
made any reference to pandering by procurement.
C. The Verdict and Sentence
Although the trial court instructed the jury on pandering
by encouragement, the verdict form it provided asked the jury to
decide whether Davis was guilty of the pandering by procurement
charge in the information, which never was conformed to the
proof at trial. Davis made no objection, however, to the variance
between the instructions and the verdict form. On June 11, 2015,
the jury found Davis “guilty of the crime of pandering by
procuring in violation of . . . section 266i[, subdivision] (a)(1) . . . .”
On July 15, 2015, the court conducted a bench trial on
allegations in the information that Davis had suffered five prior
felony convictions for which he served prison terms (§ 667.5,
subd. (b)).5 The court found those allegations to be true. It
sentenced Davis to the upper term of six years on the pandering
conviction, plus separate one-year enhancements under section
667.5, subdivision (b), for each of the five prior prison terms, for
an aggregate prison term of 11 years. Two of the sentence
enhancements were based on convictions Davis had suffered for
5 Before the start of the jury trial on the pandering charge,
the court granted Davis’s motion to bifurcate the trial on the
allegations of the prior convictions.

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burglary and petty theft with a prior, respectively. The trial
court denied Davis’s request to stay the imposition of those
enhancements pending resolution of an application that Davis’s
counsel stated that she recently had filed on Davis’s behalf under
Proposition 47 to designate as misdemeanors his convictions for
burglary and petty theft with a prior.
Davis timely appealed from the judgment.
Three months after Davis appealed, the trial court that had
entered the judgments on Davis’s convictions for burglary and
petty theft with a prior granted Davis’s Proposition 47
application to designate those convictions as misdemeanors.
DISCUSSION
A. Davis’s Challenges to the Pandering Conviction Lack Merit
Davis claims that there is insufficient evidence to support
his pandering conviction and that the trial court committed
prejudicial error in failing to instruct the jury on the lesser
included offense of attempted pandering. Evaluating Davis’s
claims through the prism of pandering by encouragement, we
conclude that they are meritless.
1. The Law on Pandering
Section 266i, subdivisions (a)(1) through (a)(6), sets forth
six different ways in which the offense of pandering can be
committed. (People v. Zambia (2011) 51 Cal.4th 965, 977-978; see
also People v. Lax (1971) 20 Cal.App.3d 481, 486 [§ 266i’s
subdivisions “do not state different offenses but merely define the
different circumstances under which the crime of pandering may
be committed”].) One of those ways is pandering by procurement,

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which occurs when a person “[p]rocures another person for the
purpose of prostitution.” (§ 266i, subd. (a)(1).) Another way to
commit pandering is by encouragement. This occurs when a
person “[b]y promises, threats, violence, or by any device or
scheme, causes, induces, persuades, or encourages another
person to become a prostitute.” (Id., subd. (a)(2).) Both
pandering by procurement and pandering by encouragement are
specific intent crimes. (Zambia, supra, at p. 980.) The chief
difference between them is that the former requires successful
procurement of a person for prostitution while the latter does not
require successful encouragement of a person to become a
prostitute. (See People v. Bradford (1973) 31 Cal.App.3d 421,
425-426.)
2. Davis’s Challenges to the Pandering Conviction
Should Be Evaluated Under the Rubric of Pandering
by Encouragement
Davis was charged with pandering by procurement.
However, the trial proceeded on the theory that Davis committed
pandering by encouragement, and the trial court instructed the
jury on pandering by encouragement, using CALCRIM No. 1151,
Alternative 1B. The instruction stated, “The defendant is
charged with pandering in violation of Penal Code section 266i.
[¶] To prove that the defendant is guilty of pandering, the People
must prove that: [¶] 1. The defendant used promises or any
device or scheme to encourage Deputy McClendon to become a
prostitute; [¶] 2. The defendant intended to influence Deputy
McClendon to become a prostitute. [¶] It does not matter

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whether Deputy McClendon was a prostitute already or an
undercover police officer. . . .”6
The verdict form, however, was based on the information,
not the instruction. Thus, when the jury convicted Davis of
pandering, it found him guilty of pandering by procurement.
On appeal, the parties’ briefs addressed Davis’s challenges
to the conviction under pandering by encouragement, without
any mention of the variance between the instruction and the
verdict form. Primarily because pandering by procurement
requires proof of success while pandering by encouragement does
not, we asked for supplemental letter briefs on whether Davis’s
challenges to his pandering conviction should be reviewed under
pandering by procurement, pandering by encouragement, or both;
whether Davis was prejudiced by the instruction on pandering by
encouragement; and whether Davis forfeited any claim of error
arising from the variance. In his letter brief, Davis changed
course from his opening and reply briefs and urged that we
evaluate his claims under pandering by procurement only. The
People adhered to their position that the claims should be
evaluated under pandering by encouragement only.
We conclude that Davis forfeited any claim of error arising
from the variance between the pandering by procurement charge
6 The instruction’s reference to McClendon’s work as an
undercover police officer embodies the principle that “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 office.” (People v. Zambia, supra, 51 Cal.4th at
p. 981.) The instruction also defined prostitution, consistent with
the definition set forth in CALCRIM No. 1151.

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and conviction, and the pandering by encouragement theory of
the case and instruction.
Contrary to Davis’s contention in his letter brief, there was
no misdirection or surprise by the prosecutor that led the trial
court to give an inapplicable instruction. The prosecutor
announced in his opening statement that the People would be
proceeding on the theory of pandering by encouragement. Davis
did not object to the variance between the information and the
declared theory of the case. The People then presented evidence
that sought to prove that Davis encouraged an undercover law
enforcement officer to become a prostitute. There was no
objection from Davis to the variance between the pleading and
the proof. Next, consistent with the evidence that was presented
at trial, the People asked the trial court to instruct the jury on
pandering by encouragement, using Alternative 1B in CALCRIM
No. 1151. Davis acceded to this request. In closing argument,
both the prosecutor and Davis’s counsel made their presentations
to the jury in terms of pandering by encouragement; pandering
by procurement was not mentioned by either attorney. Finally,
Davis failed to object to the variance between the instruction on
pandering by encouragement and the verdict form’s reference to
pandering by procurement. It was not until our request for
supplemental briefing that Davis complained about the variance.
This was too late. He thus forfeited any claim of error arising
from the variance. (See People v. Maury (2003) 30 Cal.4th 342,
427 [forfeiture due to failure to object to variance between
pleading and proof]; People v. Jones (2003) 29 Cal.4th 1229, 1259
[forfeiture due to failure to object to asserted error in the verdict
form].)

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Forfeiture aside, we also conclude that Davis was not
prejudiced by the variance. Davis claims that prejudice inheres
in the fact that the verdict form manifests his conviction for an
offense on which the jury was not instructed. He asserts that
there is “no authority which could allow the sufficiency of the
evidence to be evaluated under a criminal statute other than for
which [a defendant] was convicted.”
Davis overlooks Lax, which furnishes that authority, and in
a pandering case no less. In Lax, the charge against the
defendant in the information was “couched in the language of”
section 266i, subdivision (a)(3) (formerly subd. (c)) (People v. Lax,
supra, 20 Cal.App.3d at p. 487), which states that pandering may
be committed by “[p]rocur[ing] for another a person a place . . . in
a house of prostitution . . . .” (§ 266i, subd. (a)(3).) The People
proceeded at trial, however, on a theory of pandering by
encouragement, and the jury was instructed on that theory.
(Lax, supra, at p. 487.) The jury found the defendant “guilty as
charged” in the information. (Id. at p. 483.) Notwithstanding the
variance between the charge, on the one hand, and the proof and
instruction on the other, the court in Lax concluded that the
defendant was not prejudiced because he “knew what he had to
defend against and made his defense accordingly; and at no time
[did] he ever claim[] he was misled.” (Id. at p. 487.)
The same can be said about Davis in this case. He knew
from the outset of the trial that the theory of pandering by
encouragement on which the case was tried deviated from the
pandering by procurement charge in the information. Davis
failed to show in his letter brief that he was caught off guard by
the prosecutor’s change of theories and hence was unprepared to
defend the case on the new theory.

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Yes, the People’s change of theory from pandering by
procurement to pandering by encouragement may have made it
easier to obtain a pandering conviction. That is because, in
proceeding under a pandering by encouragement theory, the
People did not have to prove that Davis successfully encouraged
McClendon to become a prostitute. By contrast, had the case
been tried on a pandering by procurement theory, the People
would have had to prove that Davis successfully procured
McClendon for prostitution. And based on the evidence
presented at trial, the People may not have been able to show
successful procurement. That the variance between the
information and the theory of the case may have lightened the
People’s burden does not mean, however, that Davis was
prejudiced by it. The question is whether the variance impeded
Davis’s ability to mount a defense to the evidence the People
presented at trial. (People v. Lax, supra, 20 Cal.App.3d at
p. 487.) The answer to that question is no. Indeed, Davis’s
counsel conceded at oral argument that the variance caused no
prejudice to Davis.
Davis suffered no prejudice from the variance for the
additional reason that the punishment for pandering by
procurement is identical to the punishment for pandering by
encouragement: “imprisonment in the state prison for three, four,
or six years.” (§ 266i, subd. (a).)7 The jury’s finding that Davis
7 Our conclusion that Davis was not prejudiced defeats
Davis’s claim, made in his letter brief, that his trial counsel’s
failure to object to the instruction on pandering by
encouragement constituted ineffective assistance of counsel. (See
People v. Johnson (2015) 60 Cal.4th 966, 979-980 [to establish
ineffective assistance of counsel, a defendant must show that

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was guilty of pandering by procurement is thus essentially a
technical defect that has no ramifications for Davis. We can
disregard a technical defect in a verdict form when the intent
behind the jury’s verdict is clear. (See People v. Johnson (2015)
61 Cal.4th 734, 785.) Here, the jury unmistakably intended to
convict Davis of pandering by encouragement because that is the
theory of pandering that was presented to the jury at trial and on
which the jury was instructed.
3. Substantial Evidence Supports the Pandering
Conviction
Davis contends the evidence is insufficient to support his
pandering conviction. According to Davis, the evidence showed
that he was recruiting McClendon for lawful escort services. We
review this challenge to the conviction under the substantial
evidence standard, which seeks to determine whether, “‘“on the
entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.]”’” (People v. Smith
(2005) 37 Cal.4th 733, 738-739.) In applying this standard, “‘“we
must view the evidence in the light most favorable to the People
and must presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.”’”
(Id. at p. 739.) Nor do we resolve witness credibility issues or
conflicts in the evidence, because that is the jury’s province.
(People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Applying this standard, there was sufficient evidence that
Davis committed the offense of pandering by encouragement.
The language that Davis used in the flyers, his statements in the
counsel’s deficient performance was prejudicial, among other
requirements].)

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multiple conversations he had with McClendon over the phone
and then during their meeting at the restaurant, and Kirk’s
testimony about the events leading to Davis’s 2009 conviction all
provided a reasonable basis for the jury to find that Davis
encouraged McClendon to become a prostitute.
To begin with, Furuyama testified that, based on his
experience in conducting pandering investigations, women
working as prostitutes commonly receive as compensation exactly
what Davis’s flyers advertised: care for hair and nails, and
“smokes.” Furuyama also testified that, based on his experience,
the phrase “escort services” on such flyers is a red flag for
prostitution-related activities. So too, Furuyama said, was
Davis’s use in his conversations with McClendon of the words
“street pimp” to describe himself and “trick” to describe
customers of the services that McClendon would be providing.
Furuyama testified that a “pimp” is a person who organizes and
controls prostitutes and receives money from their acts of
prostitution, and the term “trick” refers to a prostitute’s
customer.
To be sure, Davis never explicitly told McClendon that the
work he was asking her to do involved prostitution, as opposed to
legitimate escort services. Further, it was McClendon, not Davis,
who raised the topic of sex in their conversations.
On the other hand, Davis’s statement to McClendon, “you
already understand what the job was based on,” in response to
her comment that her friend’s job as an escort involved “fucking”
as well as “dancing and massaging,” could lead the jury rationally
to conclude that Davis was encouraging her to engage in
prostitution. The jury could draw the same inferences from
Davis’s statement to McClendon at the restaurant that he would

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“enjoy it,” in response to her comment that she would be the one
“doing all the fucking.” Indeed, it may have been significant to
the jury that, whenever McClendon raised the topic of sex during
their conversations, Davis never denied that the job would
involve sex acts. And Davis’s use of a false name (Shermen
Williams) on the flyers and when answering the first call from
McClendon, as well as his recurring expression of concern to
McClendon that she might be a police officer, could have
prompted the jury to believe that Davis’s business was unlawful,
not a lawful escort service.
The jury also could have concluded that Davis intended to
commit pandering by encouragement based on the events that
Kirk described regarding Davis’s pandering in a prior case.
(People v. Leon (2015) 61 Cal.4th 569, 597-598 [evidence of a
defendant’s past criminal acts can be probative under Evid. Code,
§ 1101, subd. (b), of the defendant’s intent to commit a similar
crime].) Kirk’s testimony revealed clear parallels between the
2009 pandering case against Davis and this case. Those parallels
reasonably could have informed the jury’s decision to convict
Davis.
In sum, based on our review of the record, we reject Davis’s
challenge to the sufficiency of the evidence supporting his
pandering conviction.
4. Any Error in Declining To Instruct the Jury on
the Lesser Included Offense of Attempted Pandering
Was Harmless
The trial court must instruct the jury not only on the crime
charged by the prosecution, but also on lesser offenses of the
crime charged and supported by the evidence. (People v. Barton

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(1995) 12 Cal.4th 186, 190.) A lesser offense is necessarily
included within a greater offense if the elements of the greater
offense or the facts alleged in the accusatory pleading include all
of the elements of the lesser offense. (People v. Smith (2013) 57
Cal.4th 232, 240.) However, “‘[a]n instruction on a lesser
included offense must be given only if there is substantial
evidence from which a jury could reasonably conclude that the
defendant committed the lesser, uncharged offense, but not the
greater, charged offense.’” (People v. Nelson (2016) 1 Cal.5th 513,
538.) On appeal, we independently determine whether the trial
court erred by failing to instruct on a lesser included offense. (Id.
at p. 538.)
The failure to instruct on a lesser included offense is
reversible error if and only if it is reasonably probable that the
defendant would have obtained a more favorable result absent
the error. (People v. Thomas (2012) 53 Cal.4th 771, 814; People v.
Breverman (1998) 19 Cal.4th 142, 177-178.) Although the
evidence may be legally sufficient to support an instruction on a
lesser included offense, the relative weight of the evidence may
compel the conclusion that there is no reasonable probability that
the failure to instruct affected the result. (People v. Beltran
(2013) 56 Cal.4th 935, 956; Breverman, supra, at pp. 177-178.)
Davis claims the trial court committed prejudicial error in
denying his request for a jury instruction on the lesser included
offense of attempted pandering. He argues that the jury could
have reasonably found that he asked McClendon to leave the
restaurant with him because he intended to use the opportunity
while they were outside to encourage her to engage in
prostitution, but he was thwarted in that effort when she refused
to go outside. According to Davis, everything up to that point

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constituted, at most, attempted pandering, and not actual
pandering.
We consider it highly unlikely on the evidence in this case
that the jury could have found Davis guilty of attempted
pandering by encouragement had it been afforded that option.
Indeed, we are hard-pressed to think of factual circumstances in
which a defendant could be found guilty of attempted pandering
by encouragement, but not pandering by encouragement. In
virtually all pandering by encouragement cases, the defendant
will be either guilty of pandering by encouragement or not guilty
of pandering by encouragement; the middle ground of attempted
pandering by encouragement rarely would exist.8
But even if the jury could have found that, up to the point
he was arrested at the restaurant, Davis was not encouraging
McClendon to become a prostitute but only attempting to do so,
such a finding was not reasonably probable. Thus, any error by
the trial court in failing to instruct on attempted pandering was
harmless.
The evidence of Davis’s guilt of pandering by
encouragement was strong. His flyers offering “housing, hair,
nails, smokes, and food” in exchange for working in “adult
entertainment and escort services”; his use of the terms “street
pimp” and “trick” in discussing the work with McClendon; his
approving reaction when McClendon said that her friend’s escort
8 For example, it is possible that a conviction for attempted
pandering by encouragement might lie if the only evidence was a
communication from the defendant encouraging the intended
recipient to become a prostitute but that never reached the
intended recipient because it was sent to the wrong address or
phone number.

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job involved “fucking” as well as “dancing and massages”; his use
of a false name and avoidance of any explicit mention of what the
job entailed; and his expressed concern that McClendon was
working with law enforcement all suggested rather unmistakably
that he was encouraging McClendon to engage in prostitution.
Defendant’s prior conduct in encouraging Kirk to engage in
prostitution using flyers with similar language is further
evidence that he was encouraging McClendon to engage in
prostitution.
In sum, we conclude that there is no reasonable probability
that the jury would have found Davis guilty of only attempted
pandering had the court instructed the jury on that lesser
included offense.
B. The Reduction of a Felony Conviction to a Misdemeanor
Under Proposition 47 Invalidates a Sentence Enhancement
Based on That Conviction When the Judgment of Which the
Enhancement Is a Part Has Yet To Become Final
In sentencing Davis, the trial court imposed five separate
one-year enhancements under section 667.5, subdivision (b)
(§ 667.5(b)) based on prior felony convictions for which he served
prison terms. Davis challenges the validity of two of those
enhancements, one of which was based on a prior conviction for
burglary, and the other on a prior conviction for petty theft with a
prior. Both of those convictions were reduced to misdemeanors
under Proposition 47 after the trial court imposed the sentence in
this case. Davis claims that the reduction of the convictions to
misdemeanors rendered the associated enhancements unlawful.

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Based on our reading of section 667.5(b) and Proposition 47, we
agree.9
1. Relevant Statutory Provisions
“‘[S]ection 667.5(b) . . . provides a special sentence
enhancement for [a] particular subset of “prior felony convictions”
that were deemed serious enough by earlier sentencing courts to
warrant actual imprisonment. . . .’” (People v. Jones (1993) 5
Cal.4th 1142, 1148.) Imposition of the enhancement “requires
proof that the defendant ‘“(1) was previously convicted of a felony;
(2) was imprisoned as a result of that conviction; (3) completed
that term of imprisonment; and (4) did not remain free for five
years of both prison custody and the commission of a new offense
resulting in a felony conviction.”’ [Citation.]” (People v. Abdallah
(2016) 246 Cal.App.4th 736, 742 (Abdallah).) “Courts sometimes
refer to the fourth requirement, which exempts from the
enhancement defendants who have not reoffended for five years,
as ‘“‘washing out’”’ . . . ‘“because it carries the connotation of a
crime-free cleansing period of rehabilitation after a defendant has
9 The People argue that we cannot consider Davis’s
Proposition 47 challenge to the sentence enhancements because
he did not challenge them in the trial court; he merely asked the
court to stay imposition of the enhancements pending disposition
of an application to reclassify the convictions on which the
enhancements would rest. This argument is mistaken. Davis
contends that the enhancements became unlawful once the
associated convictions were reduced to misdemeanors. An
unlawful sentence can be corrected at any time, even when its
propriety is raised for the first time on appeal. (People v. Scott
(1994) 9 Cal.4th 331, 354.)

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had the opportunity to reflect upon the error of his or her ways.”’
[Citations.]” (Ibid.)
Proposition 47 reclassified as misdemeanors certain
criminal offenses that were previously classified as felonies or
wobblers (crimes that can be punished as either felonies or
misdemeanors). It also established procedures for persons
convicted of those crimes to recall their felony sentences and have
them reduced to misdemeanors. (People v. Rivera (2015) 233
Cal.App.4th 1085, 1091.) Specifically, section 1170.18,
subdivision (a) (section 1170.18(a)) provides a mechanism by
which a person who was on the date of Proposition 47’s
enactment serving a felony sentence for an offense that
Proposition 47 reduced to a misdemeanor may petition to recall
that sentence and seek resentencing. To be eligible for
resentencing under section 1170.18(a), the petitioner must
demonstrate that the sentence that he or she is serving is “‘“for a
crime that would have been a misdemeanor had Proposition 47
been in effect at the time the crime was committed.”’” (People v.
Rivas-Colon (2015) 241 Cal.App.4th 444, 449.) Subdivision (b) of
section 1170.18 provides, in turn, that a petitioner who is eligible
for resentencing “‘shall have his or her sentence recalled and be
“resentenced to a misdemeanor . . . unless the court, in its
discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.” [Citation.]’
[Citation.]” (People v. Hall (2016) 247 Cal.App.4th 1255, 1261.)
Section 1170.18, subdivisions (f) and (g), provide similar relief for
persons who have completed felony sentences for offenses that
Proposition 47 reclassified as misdemeanors; these provisions
authorize such persons to file an application to have their
convictions designated as misdemeanors. (§ 1170.18, subds. (f),

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(g).) Section 1170.18, subdivision (k) (section 1170.18(k)),
provides that “[a]ny felony conviction that is recalled and
resentenced under subdivision (b) or designated as a
misdemeanor under subdivision (g) shall be considered a
misdemeanor for all purposes, except that such resentencing
shall not permit that person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction
[for various firearm prohibitions].”
2. Because the Judgment Against Davis in This Case
Was Not Final When His Prior Felony Convictions for
Burglary and Petty Theft with a Prior Were Reduced
to Misdemeanors Under Proposition 47, the
Enhancements Associated with Those Convictions Are
Invalid
In Abdallah, we construed section 1170.18(k)’s “for all
purposes” language to encompass section 667.5(b) sentence
enhancements imposed after a felony conviction on which an
enhancement rests has been reduced to a misdemeanor under
Proposition 47. Applying that interpretation, we held that
because the pertinent prior conviction of the defendant in
Abdallah already had been reduced to a misdemeanor by the
time of his sentencing, he “was not a person who had committed
‘an offense which result[ed] in a felony conviction’ within five
years after his release on parole for his prior conviction” within
the meaning of section 667.5(b)’s washing out requirement;
therefore, we invalidated the sentence enhancement that was
based on that conviction. (Abdallah, supra, 246 Cal.App.4th at
p. 746.)

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Abdallah does not control here because the trial court
imposed the enhancements that Davis challenges before the
convictions on which those enhancements rested were reduced to
misdemeanors under Proposition 47. Davis asked the trial court
to stay imposition of the enhancements pending disposition of his
Proposition 47 application; the court declined that request and
imposed the enhancements. Thus, unlike the defendant in
Abdallah, Davis already had been sentenced when the
convictions were reduced to misdemeanors. Nevertheless, we
conclude that section 1170(k)’s “for all purposes” language applies
to the enhancements that Davis is challenging because the
judgment of which the enhancements are a part was not final
when the convictions were reduced to misdemeanors.10
In concluding that the benefits of reclassification of an
offense under Proposition 47 apply to section 667.5(b) sentence
enhancements in nonfinal judgments, we adopt the analysis and
reasoning of Division Two of the Fourth District in People v.
Evans (2016) 6 Cal.App.5th 894, review granted February 22,
2017, S239635. In that case, as here, the defendant asked the
trial court to stay imposition of a section 667.5(b) sentence
enhancement based on a prior felony conviction until after a
hearing on a Proposition 47 petition to reclassify that conviction
as a misdemeanor. The court declined that request; it imposed
10 A judgment becomes final when the availability of an
appeal and the time for filing a petition for certiorari have
expired. (People v. Kemp (1974) 10 Cal.3d 611, 614.) The
judgment against Davis was not final when the convictions on
which the challenged enhancements rest were reduced to
misdemeanors because Davis’s appeal from the judgment was
pending before us.

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the sentence and entered judgment. The defendant appealed the
judgment. As happened to Davis, while Evans’s appeal was
pending, the prior conviction on which the enhancement rested
was reduced to a misdemeanor under Proposition 47. (Id. at
p. 904.)
The Court of Appeal in Evans held that because the
judgment was not final at the time the prior conviction was
reduced, the enhancement was subject to Proposition 47 under
the rule of In re Estrada (1965) 63 Cal.2d 740. (People v. Evans,
supra, 6 Cal.App.5th at pp. 902-903.) The Estrada rule provides
that, absent evidence to the contrary, a statutory amendment
mitigating criminal punishment is presumed to apply
retroactively to all defendants whose judgments were not yet
final on the operative date of the amendment; the rule is an
exception to the ordinary presumption in section 3 that statutes
apply prospectively only. (People v. Brown (2012) 54 Cal.4th 314,
323.) As the court in Evans explained, “[t]he Estrada rule is
based on legislative intent. ‘When the Legislature amends a
statute so as to lessen the punishment it has obviously expressly
determined that its former penalty was too severe and that a
lighter punishment is proper as punishment for the commission
of the prohibited act. It is an inevitable inference that the
Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply
to every case to which it constitutionally could apply. The
amendatory act imposing the lighter punishment can be applied
constitutionally to acts committed before its passage provided the
judgment convicting the defendant of the act is not final.’
[Citation.]” (Evans, supra, at p. 903, italics omitted.)

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Proposition 47 is an amendatory statute that mitigates
punishment for certain offenders whom the measure identifies as
having been treated too harshly at sentencing. Punishment that
is mitigated under Proposition 47 is mitigated “for all purposes,”
as section 1170.18(k) states. We agree with the Court of Appeal
in Evans that Proposition 47’s “for all purposes” language must
be informed by the Estrada rule. And under that rule, absent
evidence to the contrary, Proposition 47’s mitigation of
punishment should be extended “to every case to which [that
relief] constitutionally could apply,” which means every case in
which the judgment is not yet final. (People v. Evans, supra, 6
Cal.App.5th at p. 904.) We discern no evidence to the contrary
that would preclude application of Proposition 47 relief to persons
who seek to invalidate nonfinal sentence enhancements
associated with felony convictions that Proposition 47 reduced to
misdemeanors.
In In re Diaz (2017) 8 Cal.App.5th 812, review granted
May 10, 2017, S240888, our colleagues in Division Four of this
district questioned Evans. Over a dissent by Justice Epstein,
Diaz held that “[t]he redesignation under Proposition 47 of a
prior felony conviction to a misdemeanor operates prospectively,
from the date of the redesignation forward, and not retroactively,
as if the conviction always had been a misdemeanor.” (Id. at
p. 817.) The majority in Diaz disagreed with Evans’s
interpretation of Proposition 47. According to the majority, by its
terms, Proposition 47 establishes a mechanism for retroactive
reduction of convictions only; it contains no mechanism for
retroactive reduction of section 667.5(b) enhancements. (Id. at

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p. 818.)11 This is the principal argument the People make in
opposing Davis’s challenge to the enhancement at issue here.
In our view, the Diaz majority’s interpretation of
Proposition 47 discounted the broad sweep of section 1170.18(k)’s
“for all purposes” language and the Estrada rule’s presumption
that Proposition 47’s amendatory relief applies to nonfinal
judgments. Under Diaz, it does not matter if felony convictions
are reclassified as misdemeanors under Proposition 47 a few
minutes after the imposition of enhancements based on those
convictions or (as was the case here) a few months afterwards:
either way, the enhancements must remain in place because the
associated convictions were not yet reclassified when the
enhancements were imposed. We do not read Proposition 47 to
draw a line between an invalid and valid enhancement based on
the date of reclassification of the associated conviction. Drawing
the line based on whether the enhancements were final at the
time of reclassification better comports with the text and purpose
of Proposition 47 and the Estrada rule.12
11 The majority in Diaz stated that Evans was distinguishable
because “[u]nlike the defendant in Evans, Diaz did not obtain
reclassification of [the conviction at issue] while his direct appeal
was pending. He did so after his judgment was affirmed on
appeal . . . .” (In re Diaz, supra, 8 Cal.App.5th at p. 823.) The
majority made clear, however, that notwithstanding this
distinction, it believed that Proposition 47 does not retroactively
invalidate any enhancement, even those that are not final when
the associated felony conviction is reduced to a misdemeanor.
(Id. at pp. 818-823.)
12 The Supreme Court soon will resolve where the line should
be drawn. It has granted review in Evans and other cases
involving retroactive application of Proposition 47 to final and

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DISPOSITION
We strike the two one-year sentence enhancements that
were based on Davis’s prior felony convictions for burglary and
petty theft with a prior for which he served prison terms. As
modified, the judgment is affirmed. The trial court is directed to
forward a corrected abstract of judgment to the Department of
Corrections and Rehabilitation.
SMALL, J.*
We concur:
PERLUSS, P. J. SEGAL, J.
nonfinal section 667.5(b) sentence enhancements alike. (People v.
Valenzuela (2016) 244 Cal.App.4th 692, review granted Mar. 30,
2016, S232900 [lead case]; see also In re Diaz, supra, 8
Cal.App.5th 812, review granted May 10, 2017, S240888; People
v. Johnson (2017) 8 Cal.App.5th 111, review granted Apr. 12,
2017, S240509; People v. Evans, supra, 6 Cal.App.5th 894, review
granted Feb. 22, 2017, S239635; People v. Jones (2016) 1
Cal.App.5th 221, review granted Sept. 14, 2016, S235901; People
v. Williams (2016) 245 Cal.App.4th 458, review granted May 11,
2016, S233539; People v. Carrea (2016) 244 Cal.App.4th 966,
review granted Apr. 27, 2016, S233011; People v. Ruff (2016) 244
Cal.App.4th 935, review granted May 11, 2016, S233201.)
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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