THE PEOPLE v. ACE KELLEY (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Shayna Kelley and Ace Kelley, a married couple, were convicted by a jury of second degree robbery with a special finding Shayna had personally used a deadly weapon during the commission of the robbery.¹  Ace was also convicted of forgery, theft of access card account information and receiving stolen property.   The Kelleys appeal from the judgments entered following their convictions, contending the trial court abused its discretion in admitting expert testimony that no one would pay $500 for a street-level prostitute in Hawaiian Gardens to rebut Shayna's testimony the victim, Dale Cavender, had attempted to renege on a deal to pay the Kelleys $500 each to engage in sex.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Summary of the Evidence Presented at Trial

a. The People's evidence

Cavender testified he went to the Hawaiian Gardens Casino in the early evening of March 5, 2009, exchanged approximately $2,500 for casino chips and began gambling at different tables.   At about 9 p.m. Cavender began talking with Shayna and Ace, who had together joined the table where Cavender was gambling.   Cavender testified Shayna was “a little flirtatious,” telling him she was celebrating her birthday and wanted “to have some fun.”   The flirting and sexual innuendos made Cavender uncomfortable because he did not know if Ace was Shayna's husband, boyfriend or just a friend.   After Shayna kept mentioning she wanted Cavender to buy her a drink, he went to the bar;  Shayna followed.

While they were standing at the bar, Shayna told Cavender Ace was just a friend, although she called him her husband, in response to Cavender's question about the nature of their relationship.   Shayna then made sexually explicit remarks, including telling Cavender she and Ace had talked about “her being with another guy and him watching maybe joining him, threesome for her․”  Cavender suggested the three of them go somewhere, offering to get a hotel room after Shayna said they could not return to her home because people were there.   Cavender testified that, although he had been convicted of solicitation for prostitution in 2000, he did not believe the conversation with Shayna was a transaction for prostitution;  she never asked for money to engage in sex and he never offered it.

Cavender and Shayna returned to the tables and continued gambling for several hours.   Close to 1:00 a.m. Cavendar cashed out about $3,200 in chips, putting the money in his front pocket, and drove the Kelleys to a nearby hotel.   Cavender paid for the room, but Shayna presented the hotel clerk with her identification because Cavender could not find his driver's license.

Once in the room, the Kelleys showered for 20 minutes while Cavender watched television.   After the Kelleys finished, Cavender and the couple had sex for several hours.   An exhausted Cavender fell asleep, and then awoke while the Kelleys were having sex on the bed.   Cavender got dressed to leave, but noticed that most of his money was missing.   The Kelleys denied knowing what happened to the money, and Ace showed Cavender his wallet.   Cavender began searching the room and found the money under the mattress.   As Cavender retrieved the money, Ace grabbed him from behind and slammed him into the wall.   While Cavender and Ace struggled, Shayna struck Cavender several times on the head with the hotel room telephone, telling Ace to kill Cavender and get the money.   Cavender, however, was able to escape with most of the money.

A few days later Cavender noticed his gas credit card, which he had with him on the night of the incident, was missing.   Two unauthorized charges were made with the card on March 6 and 7, 2009.   Cavender testified the signature on the March 7 gas station receipt was not his and appeared to be a forgery.

Los Angeles County Deputy Sheriff Bryant Wade testified he responded to the call reporting the incident.   Wade observed Cavender had scrape marks on his legs, right arm, right eye and right side of his nose, and did not appear to be under the influence of alcohol or methamphetamine.   Wade also testified the mattress in the hotel room had been pulled off the bed and all of the drawers in the small cabinets had been opened.   Photographs of Cavender's injuries and the hotel room were introduced into evidence.

b. The defense's evidence

Shayna testified on her own behalf.   She stated she and Ace went to the casino because they had “received [their] income tax return” and wanted to celebrate.   Soon after they arrived Cavender began flirting with her, and eventually she walked to the bar with him where he asked if she was “working.”   Shayna thought Cavender was asking if she was a prostitute.   She testified, “Directly I said no, but I followed with, ‘what if I said [Ace and I] both were?’ ” ²  Cavender told her, “that would be even better,” and asked how much it would cost.   Shayna told him, “$500 each for anything he wanted.”   Cavender agreed, suggesting they go to a nearby hotel, and the two returned to the gambling tables where Shayna confirmed the arrangement with Ace. Cavender and the Kelleys continued gambling for several more hours until Shayna insisted that they leave or else she would go home.

Cavender and the Kelleys left the casino and checked into a hotel;  Shayna confirmed she had provided the hotel clerk with her identification and filled out the registration form.   After they arrived in the room Cavender gave Ace ten $100 bills, which Ace placed underneath the mattress.   Cavender then asked Ace if he wanted to get high, and Ace agreed.   Cavender gave Ace a plastic bag with a white powdery substance, and Ace asked if Cavender had anything “to chop the lines up with.”   Cavender handed him “some sort of card.”   While the two proceeded to ingest the drugs, Shayna went into the bathroom because she was pregnant and wanted to “separate herself” from the drug use.   Shortly thereafter, the three proceeded to have sex for two to three hours.

After Cavender and the Kelleys finished having sex, Ace went to the bathroom to clean up.   While Ace was in the shower, Cavender quickly got dressed and reached for the money Ace had put under the mattress.   Shayna testified she “went to grab [Cavender] and stop him because that [was] the money that [she] and [her] husband had worked for.”   However, Cavender pushed her onto the bed and they started fighting over the money.   Although Shayna was screaming for Ace, he did not hear anything over the noise of the shower.   After a few minutes Cavender was able to overpower Shayna and leave the room.

Ace did not testify on his own behalf or call any witnesses.

c. The trial court's ruling permitting expert testimony on the prevailing price for street-level prostitution transactions in Hawaiian Gardens

After defense counsel presented its case, the prosecution sought to introduce expert testimony from Detective Kathleen Miller, a member of the Los Angeles Sheriff's Department's vice morals crew for the major crimes bureau, regarding the prevailing price for street-level prostitution transactions in Hawaiian Gardens to rebut Shayna's testimony Cavender had agreed to pay her and Ace $500 each to engage in sex.

Following voire dire to establish Detective Miller was qualified to testify as an expert (she had never done so before), defense counsel objected on the ground her experience differed from the facts of the case.   Counsel for Shayna argued, “I believe that ․ Detective Miller ․ would not necessarily qualify as an expert in this particular case with regard to her knowledge and experience.   Particularly, in the fact that she has indicated that her training not only as undercover, but also in relationship to training other individuals, is that of street level transactions, massage parlors or in and out-calls, which would highly differ than the situation we have here.   We don't have a street level transaction.   We don't have a massage parlor or in and out-call type of situation.   That, plus the fact that she has indicated she has never qualified as an expert in this field other than in areas where she has actually been [a] percipient witness or [a] member of [the] transaction.”

The trial court ruled, “I think [Detective Miller's] experience and training qualifies her to testify as an expert and as far as the [sic ] not being exactly the same thing, that goes to the weight of her opinion as opposed to allowing it at all.   I think there can be some argument made that this is a little similar, although not exact as to what she has been involved in.”

d. Detective Miller's testimony

Detective Miller testified the price charged by street-level prostitutes at the Hawaiian Gardens Casino was between $60 and $120.   She explained a “street-level” prostitute is one that the customer “just made contact with within the ․ casino and, therefore, ․ he didn't make a call to her to come to him or she didn't make a call to him to come to her.” ³

Although Detective Miller acknowledged prostitutes working for escort services, such as the one operated by Heidi Fleiss, could receive $1,000 to $3,000 for an all-night session, she stated, “That would be maybe Beverly Hills.   Something like that nature.   It is not going to be in Hawaiian Gardens or Bellflower or Lakewood[.]  [T]he men, especially with the economy the way it is today, they are not going to pay this much.”

2. The Jury's Verdict and Sentencing

The jury found Shayna guilty of second degree robbery and found true the special allegation she had used a deadly weapon (the hotel room telephone).   The trial court sentenced her to an aggregate state prison term of three years, consisting of the low term of two years for robbery plus one year for use of a deadly weapon.

The jury found Ace guilty of second degree robbery, forgery, theft of access card account information and receiving stolen property.   The court sentenced him to an aggregate state prison term of five years eight months, consisting of the upper term of five years for robbery, plus the middle term of eight months for forgery.   Sentence for the remaining counts was stayed pursuant to Penal Code section 654.

DISCUSSION

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”  (Evid.Code, § 720, subd. (a);  see Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38 [expert is qualified if he or she “has sufficient skill or experience in the field so that his [or her] testimony would be likely to assist the jury in the search for the truth”].)  “The trial court's determination of whether a witness qualifies as an expert is a matter of discretion and will not be disturbed absent a showing of manifest abuse.”  (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)   “Error regarding a witness's qualifications as an expert will be found only if the evidence shows that the witness ‘ “ ‘clearly lacks qualification as an expert.’ ” ' ”  (People v. Farnam (2002) 28 Cal.4th 107, 162.)   The degree of an expert's expertise goes to the weight of the expert's testimony, not its admissibility.  (Ibid.;  cf.  People v. Catlin (2001) 26 Cal.4th 81, 131 [“[q]ualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion”].)

Although the Kelleys argued to the trial court Detective Miller was not qualified to testify because her experience was with street-level prostitution transactions as opposed to the all-night escort service at issue in this case,⁴ on appeal the Kelleys present a slightly different argument.   Citing cases that stand for general principles governing the admissibility of expert testimony,⁵ they essentially contend the dissimilarity renders Detective Miller's opinion unreliable and void of evidentiary value.  (See People v. Gardeley (1996) 14 Cal.4th 605, 618 [“any material that forms the basis of an expert's opinion testimony must be reliable”];  Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135-1136 [“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.  [Citations.]  In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence.”].)

Regardless of how the argument is cast, and even if their new argument on appeal has not been forfeited for failure to raise it below (see People v. Demetrulias (2006) 39 Cal.4th 1, 19-20[“[w]e conclude defendant forfeited the issue of the evidence's admission by his failure to make a timely objection on this ground”];  Evid.Code, § 353, subd. (a) [verdict or finding shall not be reversed by reason of erroneous admission of evidence unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made”] ), the trial court did not abuse its broad discretion in either determining Detective Miller was qualified to testify or admitting the testimony (see People v. Robinson (2005) 37 Cal.4th 592, 630 [“trial court's determination to admit expert evidence will not be disturbed on appeal absent a showing that the court abused its discretion in a manner that resulted in a miscarriage of justice”].) ⁶

Detective Miller, whose qualifications the Kelleys generally do not dispute,⁷ testified that, based on her training, experience and consultation with other law enforcement officers working in casinos, street-level prostitution transactions were those where the prostitute made contact with the client in the casino, just as, believing Shayna's version of events, the Kelleys did with Cavender.   Whether the Kelleys viewed themselves as an exclusive, premium, all-night escort service, not street-level prostitutes, does not render Detective Miller's testimony unreliable or essentially irrelevant.   Cavender admitted he had solicited a prostitute in the past.   Detective Miller's testimony, at a minimum, was admissible to help the jury determine whether Cavender's assertion he had not solicited the Kelleys was credible.   The dissimilarity the Kelleys contend renders Detective Miller unqualified or her testimony unreliable is simply their theory of defense, a theory the jury was entitled to reject after being appropriately informed about the price for various kinds of prostitution services in Hawaiian Gardens.   Moreover, Detective Miller's experience was not entirely dissimilar to the facts of this case.   She testified she was familiar with premium escort services, but repeatedly insisted that “[a] John is not going to pay $500 in Lakewood, Bellflower, Hawaiian Gardens, East L.A., Compton, Century Station.   They are not going to pay it․  Because they can get somebody else that looks just like she does or he does to do the exact same thing for less.   They are not going to pay that much amount of money․  You can walk out onto just about any street and take a look and there's prostitutes out there, Sir.” Thus, the trial court did not abuse its broad discretion in admitting Detective Miller's testimony.

DISPOSITION

The judgments are affirmed.

We concur:

FOOTNOTES

FN1. Because Ace Kelley and Shayna Kelley share the same last name, we refer to them by their first names for convenience and clarity.  (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1466, fn. 1.).  FN1. Because Ace Kelley and Shayna Kelley share the same last name, we refer to them by their first names for convenience and clarity.  (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1466, fn. 1.)

FN2. Shayna testified, although she had never worked as a prostitute, Ace had and shared with her his fantasy of including her in an act of prostitution.   Shayna said she found the whole idea intriguing and was willing to try it.   Shayna also admitted she had previously been convicted of petty theft..  FN2. Shayna testified, although she had never worked as a prostitute, Ace had and shared with her his fantasy of including her in an act of prostitution.   Shayna said she found the whole idea intriguing and was willing to try it.   Shayna also admitted she had previously been convicted of petty theft.

FN3. Detective Miller testified that, “For in-call, out-call, that can go from $100 to $200 where they are actually, you go to the prostitute to her house or her condo or her motel room or she comes to your motel room.”.  FN3. Detective Miller testified that, “For in-call, out-call, that can go from $100 to $200 where they are actually, you go to the prostitute to her house or her condo or her motel room or she comes to your motel room.”

FN4. On appeal Ace describes the services purportedly provided to Cavender as “a premium casino-based escort service, complete with extended social conversation, and mutual drinking and gambling for 2 1/2 to 3 hours, followed by 2 1/2 to 3 hours of extraordinary three-way sex.”.  FN4. On appeal Ace describes the services purportedly provided to Cavender as “a premium casino-based escort service, complete with extended social conversation, and mutual drinking and gambling for 2 1/2 to 3 hours, followed by 2 1/2 to 3 hours of extraordinary three-way sex.”

FN5. Evidence Code section 801, governing the admissibility of expert testimony provides, “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”.  FN5. Evidence Code section 801, governing the admissibility of expert testimony provides, “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:  [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact;  and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”

FN6. The Kelleys' reliance on Parlour Enterprises, Inc. v. The Kirin Group, Inc. (2007) 152 Cal.App.4th 281, 290 for the proposition the facts underlying the expert's opinion must be substantially similar to the facts of the case is misplaced.   In Parlour Enterprises the court held the plaintiff's evidence of lost profits to support its damages calculation was insufficient because the plaintiff's expert relied on projections, not actual operations.   The court stated, “Although prelitigation projections are relevant and admissible, especially when they are prepared by the defendant [citations], the projections must nevertheless be based on facts that are substantially similar to the lost business opportunity.   [Citation.]  There is no evidence that was done here.”  (Id. at p. 290.)   The court's analysis, following from the general principles governing damage awards in injury to business cases based on net profits, is simply not applicable to the question whether an expert is qualified to opine on a particular topic or whether the expert's experience must exactly match the facts of the case upon which the expert is opining..  FN6. The Kelleys' reliance on Parlour Enterprises, Inc. v. The Kirin Group, Inc. (2007) 152 Cal.App.4th 281, 290 for the proposition the facts underlying the expert's opinion must be substantially similar to the facts of the case is misplaced.   In Parlour Enterprises the court held the plaintiff's evidence of lost profits to support its damages calculation was insufficient because the plaintiff's expert relied on projections, not actual operations.   The court stated, “Although prelitigation projections are relevant and admissible, especially when they are prepared by the defendant [citations], the projections must nevertheless be based on facts that are substantially similar to the lost business opportunity.   [Citation.]  There is no evidence that was done here.”  (Id. at p. 290.)   The court's analysis, following from the general principles governing damage awards in injury to business cases based on net profits, is simply not applicable to the question whether an expert is qualified to opine on a particular topic or whether the expert's experience must exactly match the facts of the case upon which the expert is opining.

FN7. In his reply brief Ace states, “Respondent spends a great deal of time arguing that Miller was a highly experienced expert in the field of street-level prostitution transactions.  [Citation.]  But [Ace] never questioned Miller's credentials and 18-year experience.   Respondent's argument fails to address the material difference between the facts of this case-a male-female, all-night exclusive escort service-as opposed to the facts involved in Miller's cases:  single prostitutes engaged in multiple transactions over the course of an evening.”.  FN7. In his reply brief Ace states, “Respondent spends a great deal of time arguing that Miller was a highly experienced expert in the field of street-level prostitution transactions.  [Citation.]  But [Ace] never questioned Miller's credentials and 18-year experience.   Respondent's argument fails to address the material difference between the facts of this case-a male-female, all-night exclusive escort service-as opposed to the facts involved in Miller's cases:  single prostitutes engaged in multiple transactions over the course of an evening.”

ZELON, J. JACKSON, J.