*1 S173490. June 2011.] [No. PEOPLE, Plaintiff and Respondent,
THE ZAMBIA, Defendant and Appellant.
JOMO
Counsel *5 Court, and Place, for Defendant under by Supreme Vanessa appointment Appellant. General, Harris, R. Brown, Jr., Dane Kamala D. Attorneys
Edmund G. and Hamanaka, Gillette, General, C. Assistant Pamela Attorney Chief Assistant Roadarmel, Jr., General, Lawrence M. A. Taryle, Paul M. Scott Attorney General, Maline, and for Plaintiff Attorneys Daniels and Rama R. Deputy Respondent.
Opinion in convicted of pandering Defendant Jomo Zambia was
CORRIGAN, J. defines (a)(2),1 which section subdivision of Penal Code violation Penal Code. statutory references are All further Here, as encouraging “another to become” a person prostitute.2 of defendant’s target was an encouragement undercover officer. He police contends that subdivision does not when the target apply is an or undercover officer police acting as one. The trial and court We appellate rejected argument. this affirm.
FACTUAL AND PROCEDURAL BACKGROUND 8, 2007, On June Officer Erika Cruz was undercover as a working street her, in direction, Los Defendant Angeles. drove looked in her past U-turn, made a and about 15 feet stopped across the street from her. Defendant lowered his window and told Cruz into truck. get his When Cruz asked defendant said why, he was The officer told him to back pimp. so, Paschal, so could talk. As he did up they Cruz called Officer her “security officer” to that she was report possibly “working pimp.” window,
Standing defendant’s open passenger side Officer saw Cruz cell on the phones truck’s center console. Defendant again told her to in get truck, that he was a repeating Cruz asked what defendant meant. pimp. He said that he “take would care of and asked how much she money [her]” $400, had in her possession. Hearing that she had defendant said if she gave him, he would her money with provide housing clothing. The full text section 2661 follows: “(a) Except (b), provided any any as person following who does is guilty pandering, felony, punishable imprisonment shall be prison the state three, four, years: or six “(1) person Procures another for the threats, violence, “(2) scheme, By causes, induces, promises, by any or device or persuades, encourages to become a “(3) place Procures for another an prostitution inmate in a house of or as an any inmate of place prostitution encouraged in which or allowed within this state. threats, violence, “(4) scheme, causes, induces, By promises, by any device or persuades, or encourages an inmate of of prostitution, place a house other in which *6 allowed, encouraged or to remain therein as an inmate. artifice, “(5) By by goods, person any fraud or or duress of or or position abuse of of authority, procures confidence or person purpose prostitution, any another for the of or to enter state, place encouraged in which or allowed within to this or come into this state or prostitution. leave this state for purpose of “(6) gives, agrees or give, any money thing Receives or to receive or or of value for procuring, attempting procure, to person purpose for the of come prostitution, or to into this state or leave this state for the of “(b) Any person (a) who does of the acts described in person subdivision with another who is a guilty pandering, felony, punishable minor is of and shall be as follows: “(1) older, years If age the other is a minor punishable by the offense is three, four, imprisonment years. prison in the state for or six “(2) years age, If the other punishable is under 16 the offense is imprisonment three, six, eight in prison years.” the state for hesitated, Defend- she was not comfortable. telling
Officer Cruz card, businessman, aher business showed told her he was a legitimate ant to her, to mean which Cruz understood would not “strong-arm” and said he that defendant used an aggressive Cruz testified take her force. money by a “gorilla like acting She him tone of voice and demeanor. characterized and to their way and violence to get or one who uses “verbal threats pimp,” she could Cruz asked defendant if into for them.” working scare prostitutes her could and Defendant told she to work the same neighborhood. continue he that would take care “just [her].” unit. Defendant was arrested
At Officer Cruz alerted her this point, backup (§ (a)(2).) with one count of charged pandering. above, Officer Paschal In addition to Officer Cruz’s summarized testimony to their use that condoms commonly prostitutes, testified pimps provide defendant, arrested Paschal to contact them. When she cell multiple phones condoms, on the truck’s console. and a business card found cell phones, card their a business with give Paschal testified that often prostitutes pimps that often number to facilitate contact.3 Paschal also explained pimps phone money. work on the street to solicit sex acts prostitutes have food, money clothing, turn their over who pimp, provides prostitutes and other services. he home and
Defendant did not His mother testified that lived her testify. in her business. Defendant would family-owned janitorial usually worked working work between 6:00 and 12:30 a.m. He carried one mobile p.m. car, third he but also a broken one in his with a that had along had phone, and often borrowed from friend. She that defendant was explained clumsy found in defend- broke his She two of three recognized phones phones. from the business. ant’s vehicle as well as defendant’s business card family varied, but that he would Defendant’s fiancée testified his work hours in the She early morning. often return to jobsite pick equipment his up truck, cell and had no the three found defendant’s recognized phones reason believe defendant was pimp. years prison.
Defendant was convicted and sentenced four by jury The Court of affirmed. Appeal
DISCUSSION subdivi At issue here is the construction proper (a)(2), “[b]y which in pertinent part any person sion provides *7 3 Kreitzman, investigation, carry Sergeant charge pimps in of the testified that Alan who was legitimacy. give appearance the of prostitutes and them to prospective business cards show 972 threats, violence, scheme, causes, induces, or
promises, any device persuades, encourages to become a of prostitute” guilty pandering. statute,
“In we look construing any first to its language. [Citation.] in ‘Words used a statute . . . should be the given meaning they bear in use. If the ordinary is clear and there language unambiguous is no [Citations.] construction, need for nor is it to resort necessary to indicia of the intent of . Legislature . . .’ ‘If the more than language one permits [Citation.] however, reasonable a interpretation, court looks “to of variety extrinsic aids, achieved, remedied, the ostensible including be the evils to objects be the legislative history, administrative con public policy, contemporaneous struction, and the scheme of which statute is a part.” [Citation.]’ (S. B. Beach 374, v. Berti Properties (2006) Cal.4th 39 [Citation.]” 379 [46 “ 380, 713].) 138 Cal.Rptr.3d P.3d A statute ‘must be a reasonable and given common sense consistent with and interpretation inten apparent purpose lawmakers, nature, tion of the rather than technical in which practical upon ” (City will result in wise rather application than mischief policy absurdity.’ Poway City v. San Diego 847, (1991) 229 Cal.App.3d 858 Cal.Rptr. [280 v. 368], quoting DeYoung City San 11, Diego (1983) 147 18 Cal.App.3d “ 722].) ‘The of a statute be Cal.Rptr. meaning not determined from may [194 sentence; context, a single word or the words must be construed to the same provisions relating subject matter must be harmonized to the ” (Lakin v. Watkins Associated Industries extent possible.’ 6 Cal.4th 179].) 863 P.2d Cal.Rptr.2d [25 argues Defendant that section (a)(2)’s “to become a does not include prostitute” is or is as one. The prostitute, posing argue that the better view is that People “to become a means to future acts of “engage prostitution,” status regardless victim’s at time of defendant’s encouragement. cases, With single an unbroken line exception, with beginning Bradshaw People Cal.App.3d Cal.Rptr. 256] Bradshaw, (Bradshaw), has rejected defendant’s In argument. defendant tried an undercover persuade officer to work in a house of police under The his defendant was under charged supervision. “ ” 266i with causing, inducing, ‘procuring, persuading encouraging’ (Bradshaw, trial, victim to become a At prostitute.4 prosecution contended that while the did not cause the officer “to successfully encouraged become he her to do so and thus violated prostitute,” former charged court specifically noted that the defendant was not under (Bradshaw; they applied statutes to houses of fn.
973 (Bradshaw, 423.) at The (b) (a)(2)) p. of section 266i. (now subdivision has a defendant (b) includes “cases where court held that former subdivision a to re-enter the to be prostitute solicited one whom he believes former he to be one whom believes presently and a defendant who solicits profession (Bradshaw, 426.) Accord- a to her at p. business relations.” change prostitute Bradshaw stands for the can be convicted that a defendant ingly, proposition a posing even if the target pandering prostitute, one, the “business relations.” target change if the defendant to encourages (Ibid.)5 Bradshaw and have concluded
Our courts have followed repeatedly to recruiting both someone that the “to become includes an existing trade the first and encouraging enter the for time prostitution officer, him or else under undercover to work for someone an prostitute, v. Hashimoto People (1976) 54 (See some new business type relationship. (Hashimoto); People Patton 862, v. 865-866 Cal.App.3d Cal.Rptr. [126 848] v. (Patton); People 211, (1976) 63 218 Cal.App.3d Cal.Rptr. 533] [133 (DeLoach).) DeLoach 333 207 Cal.App.3d Cal.Rptr. 831] [254 have the of the statute in this reaching Courts noted purpose Hashimoto, supra, 862, the ran outcome. In 54 defendant a travel Cal.App.3d the tourists. An undercover officer with agency catering foreign spoke had “been informed that he was work hiring girls she saying (Id. 865.) him.” at The defendant said would refer to the officer those p. he his Told that clients of who were the services of seeking client, $50 rate $75 the defendant a reduced charged negotiated officer per referrals, he for his that the volume of customers would offset urging supplied (Ibid.) the discounted convic- affirming In the defendant’s pandering price. tion, noted, the court “The of the statute anti-pandering [citation] all ‘cover the various ramifications the social evil of pandering crime, them with a view of effectively include all in definition (Id. 866.) at It condemned.’ combating sought p. evil be [Citations.]” new launching not wanted to of a Legislature only stop concluded “by discouraging career but also prostitute’s persons to prevent other than from augmenting expanding prostitute’s (Id. at of available operation, increasing supply prostitutes. [Citations.]” People Montgomery 867; 24 P.2d see also v. 47 p. Cal.App.2d [117 Court Murgia Municipal (1975) 437], other grounds on disapproved 286, 301, 44].) P.2d This analysis fn. 11 Cal.3d CaLRptr. necessarily argued “encourage” implied also and that “to become” Bradshaw success persuasive not have been a before defendant’s activities. means that victim could (Bradshaw, necessary held that “success is not court (b) ‘encourage’ the word as used of section proscribed element of offense (Id. 266i.” *9 that when a and to a recognizes protection offers pimp support prostitute income, return some the or all her offer increases the the likelihood that activities, will be her prostitute able maintain an outcome expand at odds with squarely goal. Patton,
In supra, Cal.App.3d encouraged teenage who had been as a He runaway, come work for him. working prostitute, needed, her offered bail when and housing, other inducements. money here, Convicted the defendant raised the pandering, very involved question woman cannot become a if she . .” arguing: (Id. already is one . . prostitute “[A] 215.) at heWhile p. acknowledged Bradshaw and Hashimoto stood him, the defendant relied on against out-of-state cases and “sound consider- (Patton, 217.) ations of at He public solicitation of a policy.” p. urged “virtuous woman” was more than an blameworthy encouragement of established who would been prostitute have coarsened “generally by previous (Id. 217-218.) acts of at prostitution.” pp. claim,
The Patton court the defendant’s “The rejected noting, fallacy involved in this reasoning is the that the con- was assumption Legislature actual, cerned only with rather than harm.” (Patton, potential, supra, Thus, focus is not on character of a defendant’s Cal.App.3d on but the social harm inherent in the target, defendant’s conduct. The Patton Hashimoto, court with Bradshaw and “A agreed noting, substantial potential for social harm is revealed even act of an established to alter her business relations. Such conduct indicates a present willingness actively (Patton, the social evil of promote prostitution.” DeLoach, how shows defendant’s here theory statute, could be used to subvert the and insulate goal predatory from behavior Barbara DeLoach had been punishment. incarcer- repeatedly felonies, ated including for various armed Paroled her most robbery. from recent she returned to live two imprisonment, with her daughters, ages her welfare income To avoid supplementing by prostitution. police child, S., she often took her older with her her while she suspicion, plied S., trade. One customer asked for an with night, interlude rather potential solicitation, than with DeLoach. DeLoach her urged daughter accept later, but S. refused. A few encountered the same man days they DeLoach threatened to beat S. if did with man she not him. The go engaged $70, sex acts with S. and her which gave DeLoach demanded multiple later, when S. was returned customer. Several weeks DeLoach man, turned over to same her S. for a sexual encounter. again paid crimes, (Id. at DeLoach 331-332.) including was with pp. charged multiple two counts of She convicted both On she was on counts. pandering. appeal, however, count, she the other the first offense. guilt Challenging
conceded occasion on the second not be convicted of pandering she could argued Thus, already S. a because S. was she made because had her to causing she could not be convicted of DeLoach argued prostitute, (Ibid.) one the second incident. become during that, because argument Court DeLoach’s correctly rejected of Appeal time, from she insulated had coerced S. to act as a the first was she *10 stated, did the second time. The court for punishment pandering “[DeLoach] her all time the first time she forced not transform S. into a for prostitute to of Penal Code go with The daughter interpretation customer]. [the the this case to victim in stigmatize 266i would us urged by require appellant (DeLoach, to do so.” as with a new form of Scarlet Letter. We decline Cal.App.3d 207 at p. lead and
The defendant could also to mischievous interpretation urged by San City City Diego, supra, (See 229 Poway absurd results. v. potentially of of to Trial court be and inquiry might required appellate defense tease out as “active Would the just might who an qualify prostitute.” was be available if the overture was made while his only target pimp’s actually engaged only Would active soliciting? prostitutes people qualify if that was be their sole would occasional resort to occupation, prostitution sufficient? Would make a the had legitimate it difference if also prostitute “active a hiatus of or months transform an Would weeks employment? a former or inactive one? is in the nothing legislative into There prostitute” raise of case law that even an intent to history remotely suggests decades these esoteric inquiries. on
The of the describes current conduct statute language pandering the That conduct is inducing the of defendant: and current part encouraging. that thereafter aimed at conduct the the target: target producing subsequent by encour in acts of a defendant’s inducement or engage following To an to her business established agement. encourage change that become a defendant intends victim “to relationship necessarily implies it her current also think regardless in the future of status. We prostitute” to another to become a say encourages safe someone advice about a career giving seldom disinterested possible path. can be understood
“encourages readily become a prostitute” that the in the future target “become encompass goal (§ (a)(2).) of This the benefit some other encourager pimp. with case statute is consistent long-standing interpretation pandering and law and the intent combat Legislature’s It is has been amended six times also section 266i significant 1973, since Bradshaw was decided in any attempt Legislature without by 976
to alter the set out above. “When a statute been construed has interpretation courts, and the thereafter reenacts that statute without Legislature courts, on that changing interpretation Legislature statute put of, in, been aware presumed have and the courts’ construction acquiesced 467, (People (1991) that statute.” v. 53 Cal.3d Bouzas Cal.Rptr. [279 Bouzas, 1076].) In 807 P.2d the statutes at issue were amended 10 times over 73 without to alter the courts’ years consistent attempt interpretation , of them. We concluded that “the in and ratified the Legislature acquiesced [statutes], judicial of the . . . intended that interpretation present (Ibid.) Here, version . . . receive a like we have a similar interpretation.” inaction pattern legislative as there exists “both a signaling acquiescence, of law body well-developed interpreting numerous provision amendments to a statute without altering . . . .” interpreted provision (Olson v. Automobile Club Southern 42 Cal.4th California 882].) P.3d Cal.Rptr.3d [74 881],
People Wagner is the Cal.App.4th Cal.Rptr.3d There, lone Bradshaw line to the exception cases. the defendant was *11 266i, (a)(2) convicted under section subdivision after he tried unsuccessfully to 502.) an active to come work for him. at (Wagner, pressure prostitute He p. that trial court argued erred a modified by giving instruction jury that occurs when “the specifying encourages defendant or solicits pandering ” one who is (Ibid.) her already to business prostitute ‘change relationship.’ The Court of reversed the defendant’s conviction and criticized the Appeal (Id. established law set out case above as at “utterly unconvincing.” The Wagner court concluded that the settled in for interpretation place decades wrong was because it is to solicit a woman was impossible (Id. stated, to become It “currently” 509-511.) one. “We pp. feel this statute clear. The defining the crime when a language occurring or induces someone else to encourages ‘become a seems prostitute’ clear in fairly its exclusion of efforts to importune currently engaged someone in that to If the had change wanted a profession management. Legislature more it could have broadly applicable provision, easily replaced phrase ‘become a with the in We ‘engage cannot prostitute’ phrase prostitution.’ (Id. assume it meant the latter said the simply when it former.” Wagner rests on General that Attorney argues misplaced notion that the intended Legislature to define and restrict acts narrowly Wagner We constitute and reads the agree. literally narrowly pandering. 266i, “to (a)(2), become found in section subdivision isolation from the words and of the statute. remaining provisions Such an established of construc approach contrary principles tion. Our in this case construe section ascertain the obligation is to 266i to intent and effect to intended statute. Legislature give purpose context, “The statute in mind the words of the must be construed keeping the same relating sections or statutory and statutes statutory purpose, other, the extent harmonized, each and with both internally be must subject be given should exists consideration Where uncertainty possible. [Citations.] from a interpretation. [Citation.] that will flow particular to the consequences circum- the wider historical the statute and history Both the legislative the legislative in ascertaining be considered enactment may stances of its Com. (1987) 43 Housing Fair & Employment Inc. v. (Dyna-Med, intent.” 1323].) 743 P.2d Cal.Rptr. Cal.3d the other (a)(2) provisions in the context of subdivision Considering 266i, behind section reveals the intent purpose of the statute from (a)(2) is to subdivision prohibit else, the target whether of someone regardless under his or that aegis work a working solicited is being noted, (a)(2) pro- As (a)
Subdivision contains six subparts. threats, violence, device by any conduct that “[b]y promises, scribes induces, to become scheme, causes, another person or encourages persuades, (§ (a)(2).) subd. a prostitute.” (a)(1)
Subdivision criminalizes “[p]rocur[ing of] added.) Whether (a)(1), italics (§ for the purpose prostitution.” the term “another there is reason to conclude taken no literally figuratively, both prostitutes would not encompass as used in subdivision person” can be as either plainly “procured” nonprostitutes, *12 person for another (a)(3) Subdivision criminalizes “[p]rocur[ing] inmate of in any or as. an place as an inmate in a house of prostitution place 266i, (§ state.” allowed within this is or encouraged which prostitution encom the term “another (a)(3), added.) person” italics Here again, subd. of their current regardless employment pursuits. all persons, passes threats, criminalizes that (a)(4) “[b]y conduct promises, Subdivision scheme, causes, induces, encour violence, or or persuades, or device by any in which an inmate a house other prostitution, any place or ages of of 266i, allowed, (§ therein as an inmate.” to remain or encouraged prostitution term “another (a)(4) does not use the added.) Subdivision (a)(4), subd. italics in who are already those targeting But it proscribes specifically person.” short, to active (a)(4) applies In subdivision “a house of prostitution.” prostitutes. artifice, fraud or “[b]y conduct (a)(5) criminalizes
Subdivision or of confidence abuse of any position or or goods, or duress of another authority, procures person for the of or to enter purpose prostitution, any state, in which place or allowed prostitution encouraged within this or to come into this state or leave this state for the of purpose prostitution.” 266i, (§ (a)(5), added.) subd. italics Once the term again, “another person,” used in (a)(5), subdivision solicited applies any active or target, otherwise.
Finally, (a)(6) subdivision authorizes prosecution anyone or or to receive gives, agrees or or give, any money “[Receives of value thing procuring, attempting for the procure, purpose or to come prostitution, into this state or leave this state for the purpose 266i, (§ prostitution.” (a)(6), added.) subd. italics The term “another person” victim, as used in this subdivision also applies any regardless whether that victim is already acting as prostitute.
In our conducting we reiterate statutory analysis, words “[t]he context, statute be must construed in in mind the keeping [a] statutory and purpose, statutes sections to the same relating must subject harmonized, other, be both and internally with each to the extent possible.” Com., (Dyna-Med, Inc. v. Fair & Employment Housing Cal.3d at supra, (a)(1), (a)(3) Subdivision (a)(6), of through when context, harmonized and read together envision that plainly solicited not, whether “person,” an active be the may of unlawful target behind pandering. intent and plain all the provisions of section 266i, taken is to deter together, or others from pimps new establishing working in the unlawful trade. relationships Our appellate courts “ have long recognized that California’s statute pandering all the ‘cover[s] various ramifications of the social evil of them all in include[s] crime, the definition of the with a view of effectively the evil combating ” to be sought (Hashimoto, condemned.’ It would be unreasonable and inconsistent to give term “another a different person” meaning from the that term meaning has when used in other subdivisions of the (§ same statute. (a)(2).) how the Long-standing authority “to become a explains can and should be construed in with the intent and harmony *13 of the statute purpose as a whole. Because Wagner to brought light ambiguity in the we also look the statutory language, beyond words of the provision Berti, the intent in Legislature’s (S. it. B. Beach enacting v. Properties supra, 379.) 39 Cal.4th at p.
Defendant’s the reasoning rests on flawed that the “assumption Legislature actual, was concerned with only (Patton, rather than harm.” potential, supra, 63 at relevant social the Cal.App.3d p. is policy question “[T]he for harm defendant’s conduct reveals. A substantial potential which potential for social harm is revealed even the act of an established to alter her business relations. Such conduct indicates present {Ibid.) of As the social evil willingness actively prostitution.” promote “ noted, ‘cover all the Legislature intended section 266i various ramifications of the social evil of and include them all in the pandering crime, definition of the with a view the evil effectively combating sought of ” (Hashimoto, supra, 866, to be condemned.’ at Cal.App.3d quoting People Montgomery, supra, 24.)6 v. Cal.App.2d
Consideration of the intent subdi violate section required vision also reveals additional with the narrow problems interpretation Wagner of that subdivision defendant and the court. We note that proffered by there is a in the intent act authority regarding to commit an of split required Cal., (See Judicial Council of Crim. Instns. Bench pandering. Jury People Montgomery, 1151, Notes to CALCRIM No. 999-1000.) In pp. 16, held that court does not page pandering Montgomery stated, intent. The court “The crime require specific of pander does not involve the ing necessarily of intent. . . . question specific [A]ll is ... is the commission of required one of the acts set forth any [in statute], and the intent pandering only is that the act be required voluntarily done or with full of its performed by person charged, knowledge nature. . . . takes a in the Anyone knowingly evil part practice condemned is of a violation of the guilty law of the state of his regardless (Ibid.) mind with relation to the act in question.” procures any Bill No. 818 Pandering No. In women person this male prostitute, enforcement letter to they laws male or female—for added.) Com. The 6 Legislative addition, definition of legislation, any person, derive dealing on Criminal Legislature to become a to become an inmate of a house of for June R. summed Statutes refer to female support houses of other with against (1969 intent pandering “by providing legislation provides McKinnon on Assem. Bill No. 818 and the female up prostitution Procedure, understood from the Reg. commercialized prostitution. Assemblyman support situation: “The intent of this measure is to Sess.) rather than males earnings Digest and related exemplified of a broad The prostitutes, then pimp, that the crime of Assem. Bill No. 818 act need not relate to a house of existing that pandering both of which have offenses amending prostitution, prostitution.” interpretation prostitute, male only, may law Robert activities. . . . . We have had Legislature’s pimps, (1969 recognized pandering section rather than female consists of rather than the commit [1] (Assemblyman Beverly, and houses of Reg. (1969 266i. [][] Sess.) complicated the crime of The amendment expanded Reg. procuring plug author complete enactment of existing prostitution." Aug. procuring Sess.) existing “encourages prostitution, prostitutes only. Robert G. thrust 11, 1969, any when a procuring only Assembly May the efforts of pimping Pimping loopholes upon prostitute— of a female Assembly Beverly, (Assem. person [f] us the italics when Bill By [1] *14 v. Mathis People (1985) 173 Cal.Rptr. But in 693], “a intent to the court concluded that pandering requires specific The Mathis court explained: “It become a influence a to person prostitute.” cause, induce, another the defendant or persuade encourage person requires or a and the causing, inducing, encouraging persuading to become prostitute; threats, violence or device or scheme. any must be promises, accomplished the crime is the in the of both of these elements of necessity Implicit intent to influence a to become inference of a specific person and, in a of such a mental state is to be circumstantial likely While evidence case, be inferred from acts of the intent to influence well given may therefrom, law, assistance, as a matter of ‘we cannot extrapolate proved must be drawn. Intent inference be ....’” is what must [to influence] (Id. omitted.) fn. intent crime. Its commis
We here that is a clarify specific pandering intend to or otherwise influence sion persuade requires as that has been here. This “to become a target phrase interpreted (a)(2) effectuates the and construction of section subdivision knowing statute, criminalize the intent of the which is to pandering purposeful “another conduct of any seeking encourage person” person trade. The or another the prostitution work with panderer pimp plying “encourages and broader construction of long-standing phrase to become a unlawful focus on defendant’s prostitute” places intent, character or actions and rather than victim’s making targeted the determinative factors for conviction. occupation as a whole reflects a legislative Defendant also that section 266i argues in the case to those who target nonprostitutes except intent to limit pandering in houses working prostitutes (a)(4), which on subdivision punishes Defendant relies threats, violence, or or device by any one who “[b]y promises, panderer scheme, causes, induces, a house of or an inmate of encourages persuades, in which is encouraged other place prostitution, remain therein as an inmate.” allowed, added.) Defendant (Italics argues under continue to be a that if someone to encouraging “to remain” is redundant. (a)(4)’s then (a)(2), subdivision subdivision phrase is flawed. Defendant’s analysis address the issue (a)(3) specific of section 266i
Both subdivision brothel, and in a (a)(3) placing brothels. Subdivision prohibits inmate to a brothel compelling prohibits “to become (a)(3) nor uses remain there. Neither subdivision intended subdivision out that the Legislature The People point prostitute.”
981 brothels, and to address the coercive inherently atmosphere brothel, there, recognizing victims to them delivering acting keep are evil whether or the the sufficiently acts not actor encourages pressures (a)(2)’s victim “to become” a once Neither there. use (a)(4)’s “to become” nor subdivision use of “to remain” refers to phrase victim, the activities of the but instead focuses on the conduct. panderer’s our Accordingly, (a)(2)’s of subdivision use of the “to interpretation become” a (a)(4)’s does not render subdivision “to remain” lan- redundant. The affirmed here guage harmonizes the various interpretation subdivisions of section in a 266i reasonable manner. It carries out intent to combat the social Legislature’s evils inherent in recruitment for acts of the trade prostitution, by and perpetuation management support offered and by coercive and pimps, particularly socially dysfunctional activities associated with brothels.7 we conclude that the
Accordingly proscribed activity someone “to become a forth in prostitute,” set subdivi (a)(2), sion includes of someone encouragement who is an active or undercover prostitute, officer. v. People Wagner, supra, police 170 499, People v. 1, and Montgomery, supra, Cal.App.4th are to the disapproved extent are they inconsistent with this opinion.
We also defendant’s reject contention that there was insufficient evidence that he to become a encouraged anyone Officer Cruz testified that defendant offered his services as a by her he would pimp telling her with provide and protection, housing, if she turned her clothing earnings over to him. Defendant twice identified himself as a assured Officer pimp, area, Cruz that she could continue to work in the same that he promised would “take care of The evidence was sufficient and supports [her].” judgment.8 7 Defendant claims that if we affirm the Appeal, pandering Court of either would become a lesser included pimping merge offense of By with it. This contention lacks merit. statutes, express requirements respective pimping a conviction of necessarily does not 266i; constitute a pandering. conviction of (Compare 266h with see 2 Witkin & Epstein, § § (3d 2000) 70, Cal. Criminal Law ed. Against Decency, Sex Offenses and Crimes p. 382 § pandering, crime of [“[T]he as defined P.C. is distinct pimping from that of [citation].”].) possible It is committing to commit one offense without the other. reject We People Avery (See also defendant’s contention lenity applicable. that the rule of 1]; 27 Cal.4th Cal.Rptr.2d P.3d Epstein, 1 Witkin & Cal. Criminal (3d 2000) Crimes,
Law ed. Introduction only rule applies § if the court can [“The intended; guess do no more than legislative body what egregious there must be an ambiguity uncertainty rule.”].) justify invoking 8 To the extent argues that defendant that he anything could not be convicted of more than attempted pandering possibility because there was no that Officer Cruz would become prostitute, the contention fails. The statute complete is clear that the crime of threats, “encourages when the defendant to become a prostitute” “promises,
DISPOSITION is affirmed.
The Court of Appeal’s judgment *16 Bamattre-Manoukian, J.,* Baxter, J., Chin, J., J., C. Cantil-Sakauye, concurred. Encouraging another“to become a
KENNARD, J., Dissenting. person 266i, Code, (a)(2); all further (Pen. is a subd. felony. prostitute” § Code.) Penal within that Falling statutory language, references are to the holds, an active of someone who is “encouragement already majority ante, 981.) I I disagree. become a (Maj. p. prostitute. opn., And a defendant how one can “become” what one is. already cannot fathom who, here, officer in the mistaken belief solicits an undercover police intent of encouraging is a lacks the specific the officer already prostitute a “to become” prostitute. person I undercover, Cruz, Police Officer Erika working
In June Los Angeles Boulevard in Van Defendant Jomo Nuys. as a on posed Sepulveda her, U-tum, his truck across the street Zambia drove made a stopped past her, truck. When she asked him why, from and told her to into his get he would take care of her by providing defendant said he was a pimp, adding Defendant was then arrested. clothing. her with food and 266i, (a)(2).) The Court of (§ subd. Defendant was convicted of pandering. conviction, the majority today. as does Appeal upheld
II 266i, (§ another “to become prostitute.” The law prohibits The “become” word (a)(2).) unambiguous. language plain subd. another; to enter into some state from one state to means pass “[t]o state, new assuming receiving from another or by condition by change matter, 2d (Webster’s character.” additional or a new or qualities, properties added; New see also Webster’s 9th Internat. Dict. italics p. New Or, law 139.) leading dictionary, as defined in Dict. Collegiate p. violence, (§ (a)(2).) requirement There is no by any device or . . . .” subd. scheme (Bradshaw, requirement there a Nor is succeed. that, high only present probability who selecting targets, panderer choose those his target. not the panderer, and intent of the Again, the focus is on the actions success. District, assigned by the Chief Appellate Appeal, the Court of Sixth *Associate Justice of VI, of the California Constitution. pursuant to article section 6 Justice the word (Black’s “become” denotes a from one condition to another. change (4th 1968) Law rev. ed. For Dictionary example, is a already officer or cannot be “to become” a police physician encouraged officer or a because in either situation the is not police physician, a new status. one who is a cannot be acquiring Similarly, (§ (a)(2).) “to become” a encouraged In to the holding statute’s contrary, majority goes beyond Nor do plain language. decisions relied on prior appellate majority its support holding. *17 that,
The v. *18 no more. ... If to do the law but says, divines He is what wrongly. required free to do so. certainly its it is clarify wants to Legislature requirement, ukase, conduct or by judicial punish are not to criminalize We empowered reach. To attempt within its brought penal has not Legislature that which the California of of a violation of the separation powers provision to do so is 1558-1559 v. Kroncke 70 Cal.App.4th Constitution.” (People J.).) P. (cone. Acting & dis. of Corrigan, opn. Cal.Rptr,2d 493] Bradshaw, it that since The considers significant majority decided, amended the pandering has Legislature was inaction times, This holding. the Bradshaw abrogating six without statute asserts, in this indicates legislative acquiescence the majority the Legislature, But, is ante, 975-976.) noted this court recently, holding. (Maj. pp. opn., “ from legislative intent concerning legislative conclusions reluctant ‘to draw ” 1120.) A Cal.4th at Farley, supra, inaction.’ (People silence or Bradshaw, that, on sound legal prin is not grounded decision like court’s through soundness ante) legal simply cannot (see acquire ciples the decision. action to abrogate lack of Legislature’s statutory a rule of on holding by relying tries to its justify The majority The in context. are to be construed of a statute construction that words to become “another encouraging person at issue prohibits provision a the statute’s other also use The notes that subdivisions prostitute.” majority the term states: “another person.” majority (a)(2) the context of the other of subdivision
“Considering provisions 266i, the statute the intent and behind section reveals purpose (a)(2) subdivision is to from prohibit person else, work under his or that of someone whether the aegis regardless target solicited being already working is noted, (a) (a)(2),
“Subdivision contains six As subparts. pro- threats, violence, scribes conduct or device or ‘[b]y by any promises, scheme, causes, induces, or another to become persuades, encourages 266i, (§ (a)(2).) subd. prostitute.’ (a)(1)
“Subdivision criminalizes the ‘[p]rocur[ing person for of] 266i, (§ added.) subd. (a)(1), italics Whether purpose prostitution.’ taken there no literally figuratively, or is reason to conclude term ‘another as used in subdivision would both person’ (a)(1) not prostitutes encompass as either can be nonprostitutes, plainly ‘procured’ (a)(3) “Subdivision criminalizes for another ‘[p]rocur[ing] place as an inmate in a house of or as an inmate of in which prostitution any place or within prostitution encouraged (§ (a)(3), allowed this state.’ subd. added.) italics Here again, term ‘another all person’ encompasses persons, of their current regardless employment pursuits. threats, (a)(4)
“Subdivision criminalizes conduct that vio- ‘[b]y promises, lence, scheme, causes, induces, or device or any persuades, encourages an inmate a house other prostitution, in which place allowed, encouraged (§ to remain therein as an inmate.’ (a)(4), added.) italics Subdivision does not use term ‘another *19 But person.’ it are targeting those who in ‘a specifically proscribes already short, house of In (a)(4) subdivision to active prostitution.’ prostitutes. applies artifice, (a)(5) “Subdivision that or criminalizes conduct fraud or ‘[b]y by of or duress or abuse of of confidence goods, any or person position another authority, for of or to enter procures person purpose prostitution, state, any which is or allowed within this or place encouraged to come state into this or leave state for the of this purpose prostitution.’ 266i, (§ (a)(5), added.) subd. italics again, Once term ‘another as person,’ (a)(5), used in subdivision to solicited active any or applies target, prostitute otherwise. (a)(6) subdivision authorizes the of
“Finally, anyone prosecution or or agrees money to receive of gives, give, any thing value ‘[Receives 986 for the person purpose to procuring, attempting procure, leave for the or to come into this state or this state
prostitution, purpose added.) (§ (a)(6), subd. italics The term ‘another as person’ prostitution.’ victim, to whether used in this subdivision also that regardless applies ante, 977-978.) as a at already acting (Maj. opn., pp. victim is prostitute.” I that its construction of section 266i’s with disagree majority (a)(2) finds in the statute’s other subdivisions. Reading subdivision support (a)(2) in with the statute’s other subdivisions readily subdivision context subdivisions, that those other which pertain generally procuring shows bearing for the have no on “another person prostitution,” of “another (a)(2)’s language encouragement person prohibiting (Italics added.) a become prostitute.” because, solicited in The Court of held that unlike the Appeal person 499, here solicited defendant Wagner, supra, person Cal.App.4th Cruz, (Officer undercover) not a it need not assess the working was prostitute, of the that section 266i’s subdivision is holding Wagner merits In already when the solicited is a affirming prostitute. inapplicable conviction, however, Court of the requi- defendant’s overlooked Appeal below, lacked site intent for statute. As violating explained intent.
IV Cruz, undercover, that Officer was mistakenly working Defendant thought a crime a A mistake of fact that intent for disproves required Three; 26, (§ re Jennings a to criminal class In liability. defense 645, 906].) R3d As the majority Cal.4th Cal.Rptr.3d [17 ante, a intent crime. (Maj. opn., acknowledges, pandering specific (a)(2)) (§ a statute 980.) Accordingly, violation “ intent a defendant to have the to influence ‘specific requires ” ante, Mathis (maj. People become prostitute’ opn., quoting 693]). Under Cal.Rptr. majority’s 173 Cal.App.3d another “to view conduct statutorily encouraging prohibited who is also a person become prostitute” applies that Officer defendant’s mistaken belief “to become” prostitute, on the intent. In Cruz fact a has no issue of bearing specific was in here, however, who, view, an undercover police a defendant solicits my *20 is a lacks the specific the mistaken belief that the officer officer in 266i, (a)(2), violate section subdivision which prohibits intent to Because the evidence undisputed “to become a another person prostitute.” Cruz believed that Officer was a defendant must have mistakenly shows that the lacked intent to the conviction under prostitute, specific support 266i, conviction, (a)(2). subdivision nonetheless his the By affirming Court of erred. Appeal
Unlike the I would reverse the of the Court of majority, judgment Appeal, which affirmed the trial court’s of conviction. judgment WERDEGAR, J., Dissenting. dissent. I respectfully unambiguous 266i, language of Penal Code section (a)(2) subdivision precludes appli those, cation of that subdivision to like the particular undercover police here, officer whom the defendant believes to be a already One is, if, holds, cannot “become” what one simply as the already majority the statute intent influence requires “to or otherwise specific persuade ” ante, ‘to become a target 980), prostitute’ (maj. defendant cannot opn., be convicted under this subdivision for to recruit into his service a attempting woman the evidence showed he believed to be in the already engaged business of prostitution.
This is not to say majority about the necessarily wrong legislative intent behind the ante, statute. As the observes majority (maj. opn., 977-978), pp. antipandering provisions Penal Code section (a) conduct, subdivision cover a broad range much that ordi- including would narily id., involve (See as persons already working prostitutes. (a)(1) a for [procuring person (4) prostitution], [persuading person remain an inmate of a house of prostitution], [procuring for inducing to travel for that fraud or purpose, by duress], (6) [giving taking payment the statute as procuring].) Reading whole, concern legislative clearly extends to promotion prostitution business generally is not limited to schemes that induce new join business. people
In 266i, however, subdivision of Penal Code section the Legislature used clear and unambiguous that does language not extend as far as its whole, evident intent in the statute as a but rather is restricted to not, be, those who are and are not believed the defendant to when, here, regularly engaged “But statutory language is clear and unambiguous, the language to an intent it according [construe assert, effect, does not is to express] that the can language be"corrected on it ground resulted from a error. Courts should use drafting this power restraint,’ rewrite statutes ‘with great where ‘the error only is clear and correction will best out the (Bonner intent of the cany Legislature.’ v. County 1336, 1346, San Diego fn. 9 Cal.App.4th Cal.Rptr.3d case, 116].) In the I present cannot be sure the language Code section [Penal (a)(2)] resulted from error. While the drafting language *21 988 statute], its the overall [pandering
[arguably] contrary purposes failure to confusion or of conceptual inclusion have been may product in the itself.” drafting process rather than an error consider the fully problem 876, 44 University Cal.4th v. (Miklosy Regents [80 California J.).) In (conc. construing of Werdegar, P.3d opn. Cal.Rptr.3d 629] line statutes, crossing be cautious about we should criminal especially, broaden criminal prohibitions Whether to between revision. interpretation call, one.” not judicial limits “is legislative their beyond existing 881].) Wagner Cal.Rptr.3d (People Cal.App.4th v. Wagner, supra, in People court I with the unanimous agree Code section of Penal unambiguous language that the Cal.App.4th not already who are targets restricts its application may to correct what Legislature I would leave it to the working prostitutes. criminal on the of a unintentional limitation scope well have been an prohibition. notes with a exception (People Wagner majority single (2009) 170 (Wagner)), 499 Cal.App.4th Court of Cal.Rptr.3d previous [87 881] decisions have held that Appeal who is a can be already prostitute encouraged (§ But, “to become a (a)(2)). as Wagner prostitute” out, has those cases lack pointed a sound basis for their legal holdings. that majority rejects criticism. The first of the decisions relied on v. Bradshaw the People is majority (1973) 31 (Bradshaw). 421 Cal.App.3d Cal.Rptr. That decision [107 256] People Frey candidly acknowledged (1964) v. 228 33 Cal.App.2d [39 49], on which Bradshaw based its Cal.Rptr. did holding, not address actually the issue of what “to become” means in the context of the statute pandering (Bradshaw, Bedsworth, at 426). As p. Justice the author of Wagner, suc- Bradshaw “was it: cinctly for a put solution without groping any precedential illumination.” (Wagner, supra, 507.) 170 at Cal.App.4th p. Nevertheless, the Bradshaw statute holding can be pandering violated one by encouraging who is to become prostitute was then People Hashimoto followed in v. 54 Cal.App.3d 862, 866 v. Patton 211, People Cal.Rptr. 63 [126 Cal.App.3d 848] 216-218 Neither determined whether Bradshaw Cal.Rptr. [133 533]. went holding of the beyond (as in it scope statutory language view my Instead, both Hashimoto and Patton looked to the social evil of did). (Hashimoto, pandering justification for their holdings. supra, 54 Cal.App.3d Patton, 866; at p. at Today, majority, citing Patton, ante, Hashimoto does the same. (Maj. 973-974.) To opn., pp. otherwise, asserts, hold the majority would insulate behavior from predatory (Id. punishment. It well be that may to work for a pimp But, “predatory behavior” that warrants social sanction. as I out pointed ante, 982-983, goes beyond the majority’s holding earlier at pages into the By reading in the statute. Legislature’s language plain “to statutory are there and by ascribing statute words that not the majority that the words do not support, become a a meaning what conduct. Decreeing statute’s prohibited has improperly expanded v. Legislature. (People domain exclusively conduct is punishable 191, 361].) 210 P.3d (2009) 46 Cal.4th Farley Cal.Rptr.3d [96 ‘accord- us to construe its provisions the Penal Code commands “Although terms, and to their with a view to effect its objects to the fair ing import Code, the courts cannot so far as to (Pen. 4), go it is clear promote justice’ § words, statute, deleting enlarging by inserting create an offense by Penal statutes meanings. the terms used false or unusual giving [Citation.] intent; include those they only reach their beyond plain will not be made to of their language. within the coming clearly import offenses [Citation.]” (Keeler (1970) 2 Cal.3d Cal.Rptr. Court Superior 617].) P.2d construction have been well-established aptly Those principles to do under something its citizens government restated: “When requires be clear. A citizen is not its must threat of penal consequence, pronouncement if he or suffer a criminal penalty what conduct is guess required obligated