Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Superior Court County of Los Angeles, Stephen A. Marcus, Judge, No. BA327413-01
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Appellant Anthony Bright was convicted by jury of pandering by encouraging. (Pen. Code, § 266i, subd. (a)(2).) The trial court sentenced him to the low term of three years in state prison. Appellant is statutorily ineligible for probation under section 1203.065, subdivision (a). He was awarded 80 days of presentence custody credit, including 26 days of good time/work time credit. Appellant contends: 1) the trial court misinstructed the jury on the elements of pandering; 2) it failed to instruct on the lesser included offense of attempted pandering; and 3) his sentence constitutes cruel and unusual punishment. We affirm.
All further statutory references are to the Penal Code unless otherwise stated.
FACTS
Prosecution Evidence
On August 10, 2007, at approximately 10:30 p.m., Los Angeles Police Officers Asia Hodge and Leanne Hoffman were posing as prostitutes in the area of 48th Street and Figueroa in Los Angeles. This area is known as the "Figueroa Corridor," for its high rate of prostitution activity. Seven or eight other female officers in the same detail were also posing as street prostitutes.
Officer Hodge waved at motorists and engaged in conversations with pedestrians who approached her. A black Ford Fusion, driven by appellant, slowly circled the block two to three times. He parked across the street and watched Hodge for five to ten minutes through the open driver's side window.
Appellant drove away, returned several minutes later and stopped several feet from Hodge. She approached his car and saw a woman in the front passenger seat. Appellant said, "'I'm a pimp, bitch. I'm a pimp, bitch. How much money do you have for me, bitch?''' Hodge answered, "'I ain't got shit for you.'" Appellant responded, "'Well, get the fuck away from my car, you out-of-pocket bitch'" and drove away. Hodge testified she understood that appellant was asking if she had any money to give to him.
Officer Hodge relayed her conversation with appellant to Officer Hoffman, who was standing nearby. Several minutes later appellant reappeared. Hoffman crossed the street to get closer to the car, which had slowed down and stopped. She walked toward the open passenger side window, and said to appellant, "'Hey what's up?'" and told him he had a "nice ride." Appellant responded, "'Hey baby, what you got?'" and "'I'll take care of you. I'll do you right.'" Hoffman asked him to park at the curb. She then noticed a woman reclining in the front passenger seat. Hoffman said to appellant, "'Hey, what you got?'" He responded, "'I got a lot. What you got?'" He asked if she was coming with him, and how much money she had.
Knowing that many prostitutes would get into a pimp's car, Hoffman said, "'Hey, I'm not going to give you anything until you tell me what you're going to do for me.'" Appellant responded that he would take care of her, buy her a car and get her a nice place. Hoffman asked what she would have to give appellant and he said, "'Bring me a G.'" To confirm the transaction she asked, "'A thousand dollars a night?'" Appellant answered, "'Yeah. You bring me that.'"
Hoffman inquired whether she had to give appellant one hundred percent. She was aware that most prostitutes must give all their earnings to their pimps. Hoffman wanted to know if she made $1,200 a night, whether she would have to give appellant the extra $200. Appellant answered, "'No. Just bring me a G and we're good.'" Hoffman asked these questions to ascertain whether appellant understood the street vernacular and wanted to procure her as a prostitute. She said, "'So you're going to take care of me, because my man don't do shit for me."" Appellant repeated that he would take good care of Hoffman and she said, "'Okay. Well, go meet me by my room,'" and she began walking towards a nearby hotel. Appellant drove in the opposite direction. Hoffman gave a prearranged signal and police officers pulled appellant over and arrested him.
At trial, Hoffman testified that the term "bitch" connotes property owned by the pimp. An "out-of-pocket" prostitute is one who has no cash on her because she has made no money. A prostitute does not approach a pimp unless she has money to offer him. It is not uncommon for a pimp to be in the company of a female while pandering. The woman can be a girlfriend or a "bottom bitch," a woman who supervises other prostitutes and helps the pimp recruit them.
Defense Evidence
Destiny Gaines is appellant's girlfriend. She testified that he is employed as a mechanic. Gaines stated that they were on their way to a nightclub on the night of the offense. They had attempted to call a friend, Devin, but had not reached him. At a stop sign, a woman approached appellant's car, and he said, "'Get away from my car, you out-of-pocket bitch.'" As they began driving, another woman approached appellant's car. She told him he had a "nice ride," and said she had $500 and a room. Appellant drove off and was arrested a short time later.
Devin is appellant's close friend. On the night of the offense, Devin and his girlfriend were planning to double date with appellant and Destiny. They were going to meet at Devin's house, but appellant and Destiny never arrived.
DISCUSSION
Appellant argues that the trial court violated his state and federal constitutional rights by misinstructing the jury on the elements of pandering. As a result, he was convicted of conduct that is not prohibited under the pandering statute. Section 266i, subdivision (a)(2) provides that a person is guilty of pandering who "[b]y promises, threats, violence, or by any device or scheme causes, induces, persuades or encourages another person to become a prostitute." (Italics added.)
The trial court instructed the jury with a modified version of CALCRIM No. 1151, adding the language "or continue to be a prostitute." The modified instruction read: "The defendant is charged in Count 1 with pandering. [¶] To prove that the defendant is guilty of pandering, the People must prove that [¶] 1. The defendant used promises, or any device or scheme to persuade or encourage Officer Hoffman to become a prostitute or continue to be a prostitute. [¶] AND 2. The defendant specifically intended to influence Officer Hoffman to be a prostitute or continue to be a prostitute." (Italics added.) Appellant contends the trial court erred by modifying the instruction so that it applied to women who were already employed as prostitutes as well as those who were not. The court indicated that the additional language was taken from the CALJIC jury instruction on pandering. (CALJIC No. 10.71.) It made the requested modification, over defense counsel's objection.
Claims of instructional error are questions of law subject to our independent review. (People v. Alvarez (1996) 14 Cal.4th 155, 217.) We may affirm the jury's verdict despite the error if it appears beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Sakarias (2000) 22 Cal.4th 596, 625; People v. Flood (1998) 18 Cal.4th 470, 504.) We reject the People's contention that appellant has waived his argument by failing to object on constitutional grounds. An appellate court may address instructional error, even in the absence of an objection, if the defendant's substantial rights were affected. (§ 1259.)
Thirty years of authority have established that section 266i is violated when an individual "encourages" a woman to become a prostitute or solicits one who is already a prostitute to "change her business relations." (People v. Bradshaw (1973) 31 Cal.App.3d 421, 426.) The term "encourage" does not imply success. (Id. at p. 425; People v. Hashimoto (1976) 54 Cal.App.3d 862, 866.) It is immaterial that the woman solicited is already a prostitute. (Bradshaw, at pp. 425-426.)
The rationale is that "[a] substantial potential for social harm is revealed even by the act of encouraging an established prostitute to alter her business relations. Such conduct indicates a present willingness to actively promote the social evil of prostitution." (People v. Patton (1976) 63 Cal.App.3d 211, 218.) The pandering statute was intended to discourage persons, other than a prostitute, from "expanding a prostitute's operation, or increasing the supply of available prostitutes." (People v. Hashimoto, supra, 54 Cal.App.3d at p. 867.)
In Bradshaw, the seminal case interpreting section 266i, the defendant "encouraged" an undercover policewoman to become a prostitute by having three conversations with her concerning entering a house of prostitution under his supervision, and splitting her profits with him. The court determined that section 266i was not limited to recruiting "innocent women" into the field of prostitution. It construed the statute to include the solicitation of a woman "who [the defendant] believes presently to be a prostitute to change her business relations." (People v. Bradshaw, supra, 31 Cal.App.3d at p. 426 .)
In People v. Hashimoto, supra, 54 Cal.App.3d 862, an undercover policewoman posed as a prostitute to investigate claims of prostitution. She contacted the defendant, who owned a travel agency. He offered to provide her with a steady supply of clients if she would agree to a lower price for her services. The court held that, by making the proposal, the defendant was inducing or encouraging a female to continue in the profession and "change her business relations by reducing her price in exchange for volume." (Id. at p. 866.)
The Fourth District addressed a challenge to a modification of CALCRIM No. 1151 in People v. Wagner (2009) 170 Cal.App.4th 499. There, a male undercover police officer posed as a "john," attempting to secure the services of a prostitute. He followed the defendant as he drove through an area known for prostitution activity. The defendant approached a woman, spoke to her through his open window, and she walked quickly away.
At trial, the woman testified she had been a prostitute for two years at the time of the alleged offense. She had walked away from the defendant's car because she believed him to be a pimp, rather than a potential customer. The prosecutor requested a modified version of CALCRIM No. 1151 to indicate that the pandering statute applies to defendants who solicit women who are already working as prostitutes. He argued that modification would avoid juror confusion because the instruction seemed to apply only to the solicitation of women who were not prostitutes. (People v. Wagner, supra, 170 Cal.App.4th at pp. 504-505.) The trial court made the requested modification and the defendant was convicted of pandering.
The additional language specified that the prohibition on pandering "'applies to cases in which a defendant solicits one whom he believes presently to be a prostitute to change her business relations.'" (People v. Wagner, supra, 170 Cal.App.4th 499, 504.)
The appellate court reversed the defendant's conviction. It concluded that, despite Bradshaw, Hashimoto and Patton, section 266i clearly provides that the offense is committed when a person induces or encourages another to "become a prostitute." No reference is made to a woman who is already a prostitute. The statutory language necessarily excludes an individual's efforts to encourage one who is currently a prostitute to "change management." The court noted that the Legislature could have replaced the phrase "become a prostitute" with "engage in prostitution," had it wished a broader application. (People v. Wagner, supra, 170 Cal.App.4th at p. 509.)
Following Wagner, Division 5 of the Second District issued a decision interpreting section 266i, but that case did not involve a claim of instructional error. (People v. Zambia (2009) 173 Cal.App.4th 1221, review granted August 19, 2009, S1734891.) There, a female undercover officer posed as a prostitute. The defendant identified himself as a pimp, and offered to provide her with housing and clothing in exchange for her earnings. The Zambia court concluded that the defendant's statements constituted encouragement within the meaning of the statute. (Id. at p. 1227.) The court added that it was unnecessary to address Wagner on the merits. Nevertheless, it stated that Wagner was factually distinguishable because the woman solicited in that case was already a prostitute, while the woman solicited in Zambia was a policewoman and had not engaged in prostitution. (Zambia, at p. 1227.)
We agree that, like Wagner, the trial court erred by modifying CALCRIM No. 1151 to include the language "continue to be a prostitute." The modification finds support only in case law and deviates from the statutory language by adding a category of women that were excluded from section 266i.
However, it is not reasonably probable that the instructional error contributed to the verdict. (People v. Sakarias, supra, 22 Cal.4th at p. 625.) Appellant offered to provide Hoffman with protection and material goods in exchange for profits she earned from prostitution. Hoffman testified to the street vernacular used to effect such a transaction. It was the actions of appellant which were under scrutiny, not the status of the women he approached. Any jury would have concluded, beyond a reasonable doubt, that appellant was engaged in pandering. The alleged instructional error was harmless beyond a reasonable doubt. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Flood, supra, 18 Cal.4th at pp. 490, 502-504.)
Attempted Pandering
Appellant argues that the trial court erred by refusing defense counsel's request to instruct the jury on the lesser included offense of attempted pandering. He contends that the evidence was sufficient to warrant such an instruction because he did not complete the offense. Rather than following Hoffman to her hotel room, he drove in the opposite direction. Moreover, his girlfriend testified that he was not a pimp or involved in illegal activity.
An attempt to commit a crime consists of a specific intent to commit the offense, and a direct but ineffectual act done towards it commission. (People v. Dillon (1983) 34 Cal.3d 441, 452.) The trial court has a sua sponte duty to instruct on the elements of a lesser included offense when the evidence raises a question whether all the elements of the charged offense are present. (People v. Breverman (1998) 19 Cal.4th 142, 154.) It is not obligated to give such an instruction when there is no evidence that the offense was less than that charged. (Ibid.)
Appellant relies upon People v. Charles (1963) 218 Cal.App.2d 812 to further his argument. There, the defendants approached two cocktail waitresses and outlined a plan under which they could become prostitutes and enter a house of prostitution. The waitresses went to the police and the defendants were ultimately convicted of attempted pandering. The appellate court affirmed their convictions, concluding that the crime was an attempt, rather than a completed offense, because the women did not accept the defendants' proposal. (Id. at p. 819.) Appellant asserts that his offense was likewise an attempt because Hoffman was not a prostitute.
Charles is both factually and legally distinguishable. The defendants in that matter were charged under section 266i, former subdivision (f) with attempting "to procure any female person to become an inmate in a house of ill-fame.... " (People v. Charles, supra, 218 Cal.App.2d at p. 816.) Appellant, however, was charged under section 266i, subdivision (a)(2) with pandering by encouraging another person to become a prostitute. He completed the crime when he told Hoffman he would take care of her in exchange for her earnings of $1,000 per night. What occurred after he made the statement is immaterial. Success is not an element of the offense. (People v. Bradshaw, supra, 31 Cal.App.3d at p. 425; People v. Hashimoto, supra, 54 Cal.App.3d at p. 866.) There was no evidentiary basis to support an attempt instruction.
The current statute prohibits "[p]rocur[ing] for another person a place as an inmate in a house of prostitution...." (§ 266i, subd. (a)(3)).
Cruel and Unusual Punishment
Section 266i provides that pandering is punishable by a term of three, four or six years in state prison. A panderer is statutorily ineligible for probation pursuant to section 1203.065, subdivision (a). Appellant claims that the denial of probation and imposition of a three-year prison sentence constitutes cruel and unusual punishment.
It was noted in the probation report that appellant was age 25 at the time of the offense. He was supported by his mother, with whom he had lived all his life. Appellant's criminal history consisted of two misdemeanor convictions for driving with a revoked or suspended license (Veh. Code, § 14601.1, subd. (a)) and transporting less than one ounce of marijuana (Health & Saf. Code, § 11360, subd. (b)). In 2006, he was arrested, although there was no disposition, for pimping a minor. The probation officer, apparently unaware that appellant was statutorily ineligible, suggested that the court grant him three years felony probation, to include one year in county jail. At sentencing, the court indicated that it could not grant probation, but if it had authority, would impose "something less than a prison sentence."
It is well-established that the absolute ban on probation and the three-year minimum prison term for panderers is not cruel or unusual punishment. (People v. McNulty (1988) 202 Cal.App.3d 624, 635; People v. Jeffers (1987) 188 Cal.App.3d 840, 856-857; People v. Almodovar (1987) 190 Cal.App.3d 732, 742, 746.) It appears that California is the only state that prohibits probation for those convicted of pandering. However, the actual prison sentence imposed--three, four or six years--is comparable to the penalties imposed in other states. (Almodovar, at p. 746.)
"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 disproportionate to the crime that it 'shocks the conscience and offends fundamental notions of human dignity.' [Citation.]" (People v. Almodovar, supra, 190 Cal.App.3d at p. 746.) Despite appellant's youth and lack of a significant criminal history, his sentence does not constitute cruel or unusual punishment.
DISPOSITION
Appellant's conviction of pandering in violation of section 266i, subdivision (a)(2) is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.