F 16.420

F 16.420 n1 “Engaged In” vs. “Committed.”

F 16.420 n2 Prostitution During Performance: Requirement That Performance Be “Obscene” Under The First Amendment.

When a charge of prostitution under PC 647(b) is based on conduct between performers and the audience, First Amendment concerns arise. (See Barrows v. Municipal Court (70) 1 C3d 821, 826 [83 CR 819] [“theatrical performances…are prima facie within the ambit of First Amendment protection”]; see also Miller v. Civil City of South Bend (7th Cir. 1990) 904 F2d 1081, 1091-92 (conc.opn. of Posner, J.) revd. sub. nom. Barnes v. Glen Theater, Inc. (91) 501 US 560 [115 LEd2d 504; 111 SCt 2456].)

Accordingly, when the jury is instructed on such a charge it must be informed that obscenity is an element of the charge which must be proven beyond a reasonable doubt. (People v. Janini DEPUBLISHED (99) 75 CA4th 347, 361-62 [89 CR2d 244] [recommending that CJ 16.211 should be given in such a case].)

NOTE: The following requested instruction was refused, among others, by the trial court.

“With respect to the prostitution counts only (PC 647(b)), the defense has produced evidence that the Sahara Theatre is a theater and that the defendant dancers were dancing for a patron at the time of the alleged prostitution. If a substantial portion and purpose of the activity was the performance of the dance, the defendant dancers cannot be convicted of prostitution. For the defendant dancers to be guilty of prostitution, the prosecution must prove beyond a reasonable doubt that lewd conduct, and not the performance of the dance, was the primary purpose of the performance. If you have a reasonable doubt as to whether the primary purpose of the dance was to commit lewd conduct for money, you must acquit.”

(Janini, [Special Instruction No. 4, 75 CA4th at 364.) The Court of Appeal commented that it would have been better to give this instruction than do nothing but that CJ 16.211 is “far superior.” (75 CA4th at 362.)

F 16.420 n3 No Such Crime As Aiding And Abetting Prostitution.

See People v. Gibson (2001) 90 CA4th 371, 385-86 [108 CR2d 809] [only possible offense is that of pimping (PC 266h(a))].

F 16.420a

Prostitution: Acts In Furtherance Of Agreement

Must Occur After The Agreement

(PC 647(b))

*To be added at end of CJ 16.420:

An act is not done in furtherance of the “prostitution agreement” unless it occurs after the agreement is reached.

Points and Authorities

PC 647b states that “no agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act,5 besides the agreement, be done within this state in furtherance of the commission of the act of prostitution by the person agreeing to engage in the act.” In People v. Davis (88) 201 CA3d Supp 1, 4-5 [247 CR 359], the court relied upon the statute’s legislative history to conclude that overt acts in furtherance of prostitution must be committed following the agreement. The court held that “acts committed before final agreement as to the price or the nature of the lewd act may not give rise to prosecution.” (Ibid.; but see In re Cheri T. (99) 70 CA4th 1400 [law of conspiracy is not applicable to PC 647(b); overt act need not follow agreement])

However, CJ 16.420 does not convey this rule to the jury. Without the supplementary language set forth above, the jury could conclude that acts committed before the agreement were “in furtherance” of the agreement and thus sufficient to convict. Hence, the supplementary language should be included in the instruction. (See also Rucker & Overland, California Criminal Forms & Instructions § 44:29A.)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

F 16.420b

Prostitution: Requirement Of Physical Contact Between

Prostitute And Customer

(PC 647(b))

*Add to CJ 16.420:

The defendant may not be convicted of prostitution unless there was physical contact between the alleged prostitute and the alleged customer. Additionally, such contact must be for the purpose of sexual arousal or gratification of the alleged prostitute or alleged customer.

Points and Authorities

Wooten v. Superior Court (2001) 93 CA4th 422 [113 CR2d 195] held that the definition of prostitution in PC 647(b), as interpreted by People v. Hill (80) 103 CA3d 525 [163 CR 99] and People v. Freeman (88) 46 C3d 419, 424 [250 CR 598], requires sexual contact between the prostitute and the customer. Furthermore, without the underlying crime of prostitution there can be no pimping or pandering pursuant to PC 266h. (Wooten, 93 CA4th 430-31.)

For a definition of “physical contact” see FORECITE F 16.420c.

F 16.420c

Prostitution: Definition Of Physical Contact

(PC 647(b))

*Add to CJ 16.420:

To constitute the physical contact for prostitution, the genitals, buttocks, or female breast, of either the alleged prostitute or the alleged customer must come in contact with some part of the body of the other.

Points and Authorities

Wooten v. Superior Court (2001) 93 CA4th 422 [113 CR2d 195].