Lead Opinion
Opinion
Introduction
Thе People appeal from an order suspending the proceedings and granting defendant probation.
Statement of Facts
Defendant formerly worked as a civilian traffic officer for the Los Angeles Police Department. During her employment, she met Patricia Isgro (Isgro), another traffic officer. The two saw each other occasionally and had brief conversations at work in April 1979; defendant was then transferred and there was no further contact between the two.
In July 1983, defendant telephoned Isgro at work. Isgro was surprised to hear from defendant and also curious, having heard defendant had been arrested recently. They arranged to meet at a restaurant, where defendant told Isgro she had left the police department and was now a prostitute. Defendant was writing a book, “From Cop to Call Girl,” describing her exploits with the police deрartment and further escapades as a prostitute. Defendant offered Isgro a job as her secretary, knowing Isgro previously had worked as a secretary for the police department; Isgro laughed at the offer. Defendant also told Isgro her life had greatly improved, and she was now earning several thousand dollars a month.
Isgro left the meeting with no plans to see defendant again; defendant was a known prostitute, and Isgro did not wish to jeopardize her position with the police department by associating with defendant. Nevertheless, defendant continued to telephone Isgro at the police station; Isgro told station personnel she did not want to take the calls and told them to tell defendant she was out of the station. Defendant left messages for Isgro, who did not respond to them.
Isgro telephoned defendant from the police station several times; these calls were monitored and tape recorded by the detectives. Isgro also made a visit to defendant’s apartment, wearing a body wire; again, her conversation with defendant was taped. During the course of their conversations, defendant arranged Isgro’s “date” with defendant’s friend.
Defendant’s friend, Harry, owned a service station and serviced defendant’s automobile for free. Harry liked older women who were tall and big. Defendant was young, small and short, whereas Isgro was 50 years old, 6 feet tall, 200 pounds and buxom—exactly what Harry liked. Isgro would keep all the money Harry paid her. Defendant indicated prostitution would only be a part-time job for Isgro—Isgro acknowledging not too many customers would be interested in a woman of her description—and Isgro could still work as defendant’s secretary.
Defendant explained Harry and his friend Bill got together on Saturday afternoons and “played” with two prostitutes at Bill’s office; Isgro was to be Harry’s date on these occasions while defendant or another woman would be with Bill. Bill was influential in the restaurant business and could provide many contacts and introductions to defendant, a budding authoress.
During the course of the conversations, defendant provided descriptions of her work as a call girl, told Isgro about other people in the business аnd some of their well-known clients. Defendant also told Isgro more about her book, especially the chapters dealing with her relationship with the police department and sexual escapades with other officers. At one point, defendant sought reassurance Isgro was not setting her up for an arrest; Isgro was able to reassure her.
Defendant finally arranged for Isgro to contact Harry. Isgro telephoned Harry and the two arranged to meet at a restaurant the following day. The meeting never took place, however; defendant telephoned Isgro to let her know Harry’s daughter was sick and Harry would be unable to keep the date.
Procedural Background
Defendant was convicted of pandering in violation of Penal Code section
The punishment for pandering is a state prison term of three, four or six years. (§ 266i.) Section 1203.065, subdivision (a), prohibits probation for a convicted panderer.
Contentions
I
The People contend the trial court erred in granting defendant probation rather than sentencing her to state prison as required by section 1203.065.
II
The People further contend, in the event the order is reversed, defendant should be resentenced according to law.
Discussion
I
The People contend the trial court erred in granting defendant probation rather than sentenсing her to state prison as required by section 1203.065. We agree.
In granting probation to defendant, rather than the statutorily required prison term, the trial court stated: “I think in this case it would be unconstitutional to send this lady at the present stage of her life, to say that she must do a minimum of three years state prison. [1] I will note that robbers are eligible to two years and certainly she in no way is—even robbers are even given probation; and she in no way is anyplace on the level with robbers.
In addressing the issue of cruel or unusual punishment, it must be borne in mind “in our tripartite system of government it is the function of the legislative branch to define crimes and prescribe punishments, and ... such questions are in the first instance for the judgment of the Legislature alone.” (In re Lynch (1972)
It is a defendant’s burden to prove the punishment prescribed for his or her offense is unconstitutional. (People v. Wingo (1975)
Lynch holds a punishment is cruel or unusual if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (
The Lynch court fashioned a three-pronged test to aid in determining whether a particular punishment is unconstitutionally disproportionate to the offense for which it is imposed; the test is not determinative, but is a tool to aid in the court’s inquiry. (Smith v. Municipal Court
In applying the first prong of the test, the court may look at such factors as the amount of gain involved, the violence or nonviolence of the crime, and whether anyone was injured in its commission. (Id., at p. 425.) The evaluation of the defendant’s culpability includes consideration of both the injury to the victim and to society. (See In re Grant (1976)
Another consideration under the first prong is the penological purposes of the prescribed punishment. (In re Foss (1974)
Howevеr, the current determinate sentencing laws emphasize punishment rather than rehabilitation and fix determinate terms without regard for the characteristics of the individual offender. (Smith v. Superior Court, supra, 78 Cal.App.3d at pp. 598-599; see Pen. Code, § 1170, subd. (a)(1); In re Eric J., supra,
Pandering, as defined in section 266i, includes a broad spectrum of behaviors and degrees of culpability. Proscribed behavior ranges from procuring another for the purpose of prostitution (subd. (a)) or by promises encouraging another to become a prostitute (subd. (b)) to the use of threats or violence to induce another to become a prostitute (subd. (b)) or receiving
As noted in George, Legal, Medical and Psychiatric Considerations in the Control of Prostitution (1962) 60 Mich. L.Rev. 717 (hereafter George), “[o]f all the groups [involved with prostitution] reached by penal law, penal sanctions are most appropriately and usefully levied against those who pander. The pander[er] facilitates entry into and practice of prostitution ...; his [or her] forcible removal therefore reduces the number of recruiters of those who are only latent prostitutes into the ranks of the confirmed. The convicted pander[er] probably will not be reformed, and the cause of his [or her] activity may in fact be in part psychological, but at least he [or she] will be kept out of circulation for a time, and upon his [or her] release... will probably be an object of considerable police interest in his [or her] future activities____” (At p. 757, fn. omitted.)
In the instant case, defendant sought out Isgro, an acquaintance, and repeatedly attempted to interest Isgro in becoming a part-time prostitute. Defendant did not use force, threats or violence, a fact which places her conduct at the lower end of the range of culpability. Nevertheless, it involved encouraging another—who worked in law enforcement and had not previously expressed an interest in practicing prostitution—to become a prostitute and facilitating her entry into prostitution. While Isgro did not suffer the injuries which might have resulted had she actually become a call girl, she was bothered by defendant’s repeated attempts to contact her at work and concerned contact with defendant might jeopardize her job. Thus, there was some injury to the victim of the crime. _
There also was personal gain involved. Although defendant would not receive any money for arranging Isgro’s contact with Harry—Isgro was to keep all the money she earned—yet she would benefit by pleasing Harry and his friend, Bill. Harry gave her free automotive work and Bill had the connections which could aid defendant in her writing career. While the amount of gain cannot be measured monetarily, it undeniably was there.
Based on the foregoing, and bearing in mind thе purpose of the penalty is punishment, we cannot conclude the denial of probation and mandatory
Turning to the second prong of the Lynch test, inasmuch as the challenged punishment here is denial of probation, rather than the length of the sentence, the comparison to be made is with other Penal Code provisions granting or denying probation to other offenders. (See In re Grant, supra,
Additionally, it must be remembered “[t]he Constitution does not require, nor is it reasonable to expect, perfect symmetry in a scheme of criminal proscription and punishment enacted in response to ever-changing problems evolving over the 125-year history of the state. Assessment of the comparative evil and comparative danger attached to diverse forms of anti-social conduct remains a uniquely legislative function into which [the] cоurt may plunge only in clear instances of gross and indefensible miscalculation.” (People v. Serna (1975)
Penal Code section 1203.065, subdivision (a), which proscribes probation for one convicted of pandering, carries the same proscription for those convicted of other sex offenses: pimping (Pen. Code, § 266h); procure
Probation may not be granted to those who commit certain felonies while using a firearm (§ 1203.06, subd. (a)), who intentionally inflict great bodily injury during the commission of the felony (§ 1203.075), or who, during the commission of the crime, inflict great bodily injury on a victim who is age 60 or older, blind, paraplegic or quadriplegic (§ 1203.09). Some recidivists are denied probation. (§§ 1203.06, subd. (a)(2); 1203.066, subd. (a)(5); 1203.07, subd. (a)(3); 1203.08; 1203.085.) Also, probation may not be granted to persons convicted of selling or possessing for sale certain amounts of heroin, phencyclidine (PCP) or other controlled substances, of manufacturing or possessing ingredients for manufacturing PCP, or using or encouraging a minor in certain PCP-related offenses. (§ 1203.07.)
The crimes for which probation is denied fall roughly into four categories: “serious” felonies involving use of a firearm or great bodily injury to the victim, violent sex offenses, sex and drug offenses involving minors, and other sex and drug offenses. The last category, which includes the instant offense of pandering, may not involve “innocent victims,” as do the crimes in the other categories; they way not even involve a “victim,” as in the case of possession of the ingredients for manufacturing phencyclidine. These crimes nevertheless may be considered “ ‘serious and deadly offense[s] against society.’ ” (People v. Madden (1979)
As with the sale of heroin, pandering may not directly injure the victim, but it may lead to the victim’s death, illness or involvement in other crimes. (See Jennings, The Victim as Criminal: A Consideration of California’s Prostitution Law (1976) 64 Cal.L.Rev. 1235.) Additionally, prostitution is viewed as “immoral to an offensive degree, condemning] women to a degrading existence which will make social derelicts of them within a relatively short period of time and is a major source of disease.” (George, supra, 60 Mich. L.Rev. at p. 744.) Because of the effects of prostitution upon those involved
Defendant points to a number of other offenses which she characterizes as more serious than the instant offense, but the conviction of which does not preclude probation for the violator. She lists the offense specified in section 288, commission of lewd or lascivious acts against a child under age 14; however, as previously noted, probation may be denied many violators of this section under section 1203.066, rather than under section 1203.065 which prohibits probation for panderers.
Probation is available to those who commit spousal rape (§ 262), a potentially violent crime. However, there is a rational reason for such preferential treatment: there is a greater potential for rehabilitation of such rapists and for rebuilding their relationships with their spouses and families. (People v. Acevedo (1985)
Abduction by force, menace or duress for marriage or defilement (§ 265) or to live in an illicit relationship (§ 266b), although they may involve more force against the victim than pandering, do not involve prostitution and its attendant evils. For this reason, the Legislature may have determined a lesser penalty—allowance of probation—than that prescribed for pandering was appropriate.
Violation of section 266g includes placing or permitting the placement of one’s wife in a house of prostitution, leaving her there or permitting her to remain there. While placing one’s wife in a house of prostitution is as reprehensible as pandering, merely permitting her to remain there does not require as much culpability. Inasmuch as the statute may be violated by such inaction, the Legislature could have taken this into account in allowing probation for violators.
Unlawful sexual intercourse, oral copulation or sodomy where consent is induced by false or fraudulent representation with intent to create fear (§ 266c) does not involve violence, although it does involve some degree of coercion. It is not necessarily more serious than pandering, so a lesser punishment may be appropriate.
Abduction or procurement by fraudulent inducement for the purpose of prostitution (§ 266a), or taking away a person under age 18 from the person’s guardian, without the guardian’s consent, for the purpose of prostitution (§ 267) are of similar seriousness as рandering, yet one convicted of these
There also is a possibility of probation for those who commit other offenses, which may not involve sexual conduct, and which might be considered more serious than pandering. For example, unarmed robbers, burglars, arsonists or some rapists may be eligible for probation. Even those who commit the above offenses, as well as murder, kidnapping or assault with intent to commit murder, while armed with a weapon other than a firearm may be given probation in unusual cases where the interests of justice will best be served thereby. (§ 1203, subd. (e)(1).)
That some sex offenses similar to pandering have lesser penalties may be more indicative of a legislative oversight resulting from the piecemeal enactment of criminal penalties, rather than indicative of a gross disproportionality of punishment requiring judicial intervention. (See People v. Serna, supra, 44 Cal.App.3d at pp. 720-721.) More difficult is the fact probation may be allowed in certain circumstances for those who commit violent and serious felonies, but it is absolutely prohibited for those convicted of pandering. While pandering may be considered a serious crime, these other crimes may be viewed as more serious, yet a lesser penalty is prescribed. That a lesser penalty is available for those who commit the more serious crimes is indicative of a disproportionate punishment, but this in itself does not establish the harsher penalty as cruel or unusual. (People v. Wingo, supra, 14 Cal.3d at pp. 178-179.)
Turning finally to the third prong of the Lynch test, it may be noted the test is based on the assumption “the vast majority of [other] jurisdictions will have prescribed punishments for this offense that arе within the constitutional limit of severity; and if the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness.” (In re Lynch, supra,
According to the figures compiled by the parties, four states do not have criminal statutes proscribing the type of behavior at issue here. (Maryland, Massachusetts, Minnesota and Virginia.) Twenty-two states class the
Twenty-four states and the District of Columbia consider pandering a felony. The majority of these provide for a prison term in the one to five year range. Where a minimum term of imprisonment is prescribed, two states require six months’ imprisonment (Ohio, Rhode Island), six states make it one year (Arizona, Connecticut, Illinois, North Carolina, Nevada, Wyoming), three states have a two-year minimum sentence (Idaho, Indiana, Missouri) and only one other state besides California, New Jersey, sets the minimum term at three years.
While the maximum term in most states is five years, four have lesser maximum terms of two and one-half or three years. (Arizona, Illinois, North Carolina, Wyoming.) Six have greater máximums: Nevada shares a six-year maximum with California, two states have seven-year maximum terms (Delaware, Pennsylvania), Indiana has an eight-year maximum, and two states have twenty-year maximum terms (Idaho, Michigan).
It does not appear that any other state prohibits probation for those convicted of pandering. In this regard, California’s punishment is more severe than that of its sister states. However, the actual punishment received by panderers in California—a term of imprisonment of three, four or six years (Pen. Code, § 266i)—is comparable to penalties which may be received in much of the rest of the nation. While on the high side, it is not grossly excessive in relation to the other states (roughly half the nation) which consider pandering a felony. Thus, the third prong of the test does not indicate constitutional interference is required. (People v. Main, supra,
While the punishment for pandering in California is undoubtedly harsh, particularly where, as here, the crime does not involve force or violence and falls at the lower end of the range of culpability, we cannot say it is so disproрortionate to the crime that it “shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra,
Defendant’s age does not count as a factor in her favor. It was a factor in Dillon, where defendant was only 17 and immature, functioning like a younger child. {Id., at pp. 483, 488.) Defendant here is an adult; there is no evidence of immaturity or other considerations which would render her less culpable on account of her age. She also was educated, a high school graduate with college credits, and had 10 years’ experience working as a traffic officer for the Los Angeles Police Department. Her age, education and experience do not call for special treatment.
Moreover, unlike the defendant in Dillon, who because of his immaturity was unable to see the risk his conduct created or to extricate himself from the dangerous situation in which he found himself without panicking {id., at p. 488), defendant here was well aware of the risk she created when she contacted Isgro and encouraged her to become a prostitute. In her September 9 conversation with Isgro, defendant stated: “ ... I’m placing myself in a great deal of jeopardy by even mentioning this to you____” In a conversation on September 16, defendant asked Isgro: “You wouldn’t set me up, would you?” Isgro asked for an explanation, and defendant indicated she meant Isgro wouldn’t inform the vice officers. Defendant further explained she was concerned, in that a friend of hers was “busted” the previous night because the friend did something “stupid,” taking a call from someone she did not know without checking it out first. Defendant averred: “ ... I don’t plan to do anything stupid. The most stupid thing I’m doing is ... is doing this with you.” Clearly, defendant realized the jeopardy she was placing herself in by arranging for Isgro to become a prostitute for Harry.
It is true defendant had no previous criminal convictions. However, she freely admitted prior criminality; she told both the probation department and the Department of Corrections she was a prostitute or “call girl.” She also indicated she planned to continue in prostitution, which she believed should be legalized, when returned to the community. She did, however, state the intention to desist from any further pandering activity, which she recognized as a serious offense.
Based on the foregoing, we cannot conclude the punishment of imprisonment is grossly disproportionate to defendant’s culpability. She knew what she was doing, she knew there were risks, but she went ahead with the crime. Although the probation department and Department of Corrections noted she was otherwise a good candidate for probation, nothing in the record mandates such lenient treatment. Accordingly, the trial court erred in finding section 1203.065 unconstitutional as applied to defendant and in granting her probation.
II
The People further contend defendant should be resentenced according to law. Again, we agree.
This contention is made in response to defendant’s assertion it would be unfair to sentence her to prison, in that she already has complied with the terms of her probation. Defendant relies on People v. Tanner, supra,
A similar result was reached in People v. Holt (1985)
People v. Gonzales (1979)
In People v. Enriquez, supra,
In the instant case, as in Enriquez, defendant was well aware of the mandatory prison term prescribed by statute as punishment for her offense when she argued for probation. Moreover, she was not required to serve a jail term as a condition of probation. While her probation was conditioned upon her spending 72 days in county jail, this was time already served for the purpose of the diagnostic study by the Department of Corrections. It was not a jail term imposed as punishment. Defendant also was required to perform 120 hours of community service and to obtain psychological counseling; the record does not reveal whether these conditions have been fulfilled. These
The order is reversed and the case remanded for resentencing.
Lucas, J., concurred.
Notes
The order is appealable pursuant to Penal Code section 1238, subdivision (a)(5). (People v. Hames (1985)
All further section references are to the Penal Code.
Section 1203.065, subdivision (a), provides: “Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person convicted of violating subdivision (2) of Section 261, or Section 264.1, or Section 266h, or Section 266i, or Section 266j, or 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm or subdivision 9(c) of Section 311.4.”
These states are: Alabama, Alaska, Arkansas, Colorado, Florida, Georgia, Hawaii, Kansas, Kentucky, Maine, Mississippi, Montana, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, South Carolina, Tennessee, Texas, Vermont and West Virginia.
Dissenting Opinion
I respectfully dissent. While I agree with the majority that Penal Code section 1203.065 is constitutional on its face, I would affirm the trial court’s order on the ground section 1203.065 is unconstitutional as applied to defendant.
As the majority observes at pages 740-741, ante, the statutory definition of pandering encompasses a broad range of behaviors and degrees of culpability. In its effort to combat pandering, the Legislature has provided no one convicted of the crime may be given probation, no matter which end of the spectrum his or her behavior falls into. (§ 1203.065, subd. (a).) Thus, in some instances, this penalty may violate the constitutional prohibition against cruel or unusual punishment. (Cal. Const., art. I, § 17.)
As noted in People v. Dillon (1983)
Under Lynch, a punishment is cruel or unusual if “it is so disproportionate
The Lynch court fashioned several tests to aid in determining proportionality, one of which is especially relevant when examining whether a particular punishment is unconstitutional as applied. (People v. Dillon, supra,
The crime here involved no finanсial gain, no threats, coercion or violence, and no injury. Defendant sought out Isgro, who agreed to meet with defendant out of curiosity; defendant described her life as a call girl and offered to set Isgro up in the same line of work. Only when Isgro expressed further interest did defendant begin to arrange for Isgro’s “date” with Harry. Clearly, defendant’s acts fell at the lowest end of the spectrum of culpability under section 266i.
Additionally, as the trial court observed, this crime did not involve the type of public activity, e.g., solicitation on Hollywood Boulevard, which carries the greatest potential for public offense. (See Jennings, The Victimas Criminal: A Consideration of California’s Prostitution Law (1976) 64 Cal.L.Rev. 1235, 1248.) The arrangements were made privately and discreetly.
In considering defendant’s personal characteristics, the trial court emphasized her age and lack of prior criminal convictions. It also relied upon the recommendations of the probation department and Department of Corrections that defendant was a good candidate for probation.
The trial court took these factors into consideration in placing defendant on probation. It informed defendant she was “out of the prostitution business at this point,” and required her to obey “all laws, orders, rules and regulations of the probation department and of the court.” This requirement of probation, plus the requirement she obtain approved education or employment, serve to assist in defendant’s rehabilitation and distance her from her recent criminal activity. Her failure to follow through with these requirements will result in the revocation of her probation and imprisonment.
In addition, the Department of Corrections’s report stressed defendant’s need to obtain psychological counseling. The trial court’s order, which required defendant to obtain such counseling, was designed to meet defendant’s neеds and lead to her rehabilitation.
The nature of defendant’s offense, her low level of culpability, her lack of a prior criminal record and amenability to probation support the trial court’s conclusion. A mandatory term of imprisonment in state prison for at least three years (§ 266i) is “ ‘out of all proportion’ ” to defendant’s offense (In re Lynch, supra, 8 Cal.3d at pp. 423-424). Therefore, I would hold section 1203.065, as applied to defendant, is cruel or unusual punishment in violation of article I, section 17 of the California Constitution.
A petition for a rehearing was denied April 13, 1987. Spencer, P. J., was of the opinion that the petition should be granted. Respondent’s petition for review by the Supreme Court was denied June 25,1987. Mosk, J., Broussard, J., and Kaufman, J., were of the opinion that the petition should be granted.
People v. Freeman (1987)