225 Cal. App. 4th 310
Cal. Ct. App.2014Background
- Rowe impersonated the victim and posted an online ad titled “Carmel Valley Freak Show” offering adult entertainment while the victim’s husband was away.
- G.M. and J.M. responded to the ad; Rowe exchanged messages and sent a victim’s photo; Rowe urged visits to the victim’s home during business hours and implied coercive sex.
- Two felony counts were charged: solicitation to commit forcible sodomy and solicitation to commit forcible rape (Pen. Code, § 653f, subd. (c)).
- At preliminary hearing, the magistrate dismissed the counts under section 871, finding no strong suspicion of the requisite specific intent to cause the crimes.
- The People moved to reinstate under section 871.5; the superior court denied the motion, affirming the magistrate’s dismissal.
- The appellate court reversed, holding the magistrate erred by not holding Rowe to answer the solicitation charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the magistrate err in dismissing the solicitation charges? | People argue sufficient evidence showed intent to cause forcible acts. | Rowe contends there was no strong suspicion of intended forcible crime. | Yes; magistrate erred; charges must be reinstated. |
| Is there a rational ground to believe Rowe solicited the crimes via the postings and replies? | People contend the postings and replies show a plan to have sexual activity occur at the victim’s home. | Rowe argues actions involved consenting acts or noncriminal solicitation of consensual activity. | Yes; there was a rational ground to believe Rowe solicited forcible sex. |
Key Cases Cited
- People v. Plumlee, 166 Cal.App.4th 935 (Cal. App. Dist. 2nd App. Dist. 2008) (standard for reviewing section 871.5 reinstatement decisions)
- People v. Dawson, 172 Cal.App.4th 1073 (Cal. App. Dist. 2nd App. Dist. 2009) (independent review when magistrate’s factual findings are not binding)
- In re Ryan N., 92 Cal.App.4th 1359 (Cal. App. Dist. 4th App. Dist. 2001) (solicitation offense completes upon the request with requisite intent)
- People v. Saephanh, 80 Cal.App.4th 451 (Cal. App. Dist. 2nd App. Dist. 2000) (twofold purpose of protecting inhabitants from solicitations)
- People v. Bell, 201 Cal.App.3d 1396 (Cal. App. Dist. 4th App. Dist. 1988) (solicitation doctrine regarding whether solicitee’s intent negates solicitation)