People v. BellPeople v. Bell
Opinion
Defendant Kerry V. Bell appeals from the judgment entered following a nonjury trial that resulted in his conviction of solicitation to commit a sexual assault (count I;
Viewed in the light most favorable to the judgment as required by the usual rule governing appellate review, the evidence establishes that in mid-June 1985 appellant offered a prostitute $200 to locate a young girl of about five, “preferably [one] that . . . had been fucked before,” for a “date.”
This woman promptly reported the incident to the police. After she had spoken to Dale Barraclough, an officer assigned to the Sexually Exploited Child Unit of the Los Angeles Police Department, she advised appellant she “was trying to set it up” and referred him to Barraclough.
On June 26, 1985, appellant contacted the officer, who agreed to meet him two days later at a restaurant with photographic “samples” of available children. The meeting took place as scheduled and in a conversation, which, unknown to appellant, was recorded, appellant reiterated his desire to have the officer procure a girl six to nine years of age, who had not “been around a male a hundred times,” to engage in sexual intercourse and mutual oral copulation.
The officer advised appellant that for a fee of $300, he would bring the child directly to appellant at a local motel. He further explained that appel *1399 lant would be dealing solely with him and that he would “take care of paying everybody.”
After viewing photographs of young nude or partially clad girls, appellant expressed interest in two seven-year-olds, but inquired whether any younger children were available. The officer described a particular five-year-old who could be provided “under close supervision” if appellant “want[ed] . . . something that young.” Appellant indicated he “would like to do it” and the officer agreed to contact him a few days later after he had had an opportunity to “check [appellant] out a little bit.”
Appellant presented no affirmative defense. Appellant’s first contention is unmeritorious. Penal Code
It matters not that appellant did not request Barraclough to engage
personally
in the commission of lewd and lascivious acts upon a child under 14 years of age in violation of Penal Code section 288. It is clear he solicited the officer to facilitate his own commission of that offense and had Barraclough done so, he would have been equally guilty, as a principal, of violating section 288.
(People
v.
Roberts
(1972)
It is, of course, irrelevant for purposes of
Notwithstanding appellant’s assertions to the contrary, Barraclough’s account of his June 28 meeting with appellant, which was corroborated by the recording of that event, amply supported the trial court’s implied finding that appellant, and not Barraclough, initiated the “solicitation.”
Appellant’s contention that he was wrongfully convicted of pandering is equally unpersuasive.
This statute covers a wide range of behavior and we need not here attempt to delineate its full scope, or determine whether its proscriptions would or would not apply to the hypotheticals advanced by appellant. It is
*1400
sufficient for our present purpose to hold that its wording is broad enough to encompass the situation where, as here, one adult offers to pay money to another to induce a young child to engage in sexual activities. (3) Such an interpretation clearly promotes the statute’s goal, which, as we pointed out in
People
v.
Hashimoto
(1976)
Appellant’s claim that prostitution was not contemplated in the instant case because there was no mention of a fee to the child herself also fails. Though prostitution involves “any lewd act between persons for money or other consideration” (
Appellant’s challenges to the propriety of his sentencing are untenable. Although he had no previous criminal record, his intended victim was particularly vulnerable. Furthermore, his actions were premeditated and posed an ongoing danger to society, as demonstrated by the fact he had, by his own admission, sexually assaulted young girls in the past and “went out and did basically the same thing in Nevada when he was released [on bail] here.”
The trial court recognized that “probably the factors in aggravation outweighed] [those] in mitigation,” but nevertheless exercised its discretion in appellant’s favor and found they “balance[d] one another out.” Manifestly, appellant was not prejudiced by this decision.
The pandering statute sets forth two sentencing schemes, one of which increases the punishment when “the other person is under 16 years of age.” Here, of course, the record is replete with evidence that appellant sought a child much younger than 16 and, consequently, the more severe punishment was warranted.
Appellant’s suggestion that a six-year sentence was “far too excessive” because his participation in the offense was “extremely minor” is totally at *1401 odds with the record. Actively seeking out a young child for sexual abuse hardly reflects minimal culpability. On the contrary, appellant’s conduct posed a grave danger both to his intended victim and to society. That he ultimately failed in his efforts demonstrates only that, most fortuitously, he inadvertently had sought the assistance of two individuals unwilling to aid and abet in the prostitution of children.
The judgment is affirmed.
Compton, Acting P. J., and Fukuto, J., concurred.
Appellant’s petitions for review by the Supreme Court were denied August 18, 1988.