SERIES 1100 SEX OFFENSES
F 1153 Prostitution: Engaging In Act (PC 647(b))
TABLE OF CONTENTS
F 1153.1 Titles And Identification Of Parties
F 1153.1 Inst 1 Prostitution: Engaging In Act—Title
F 1153.1 Inst 2 Identification Of Prosecution And Defendant
F 1153.2 Prostitution: Engaging In Act—Tailoring To Facts: Persons, Places, Things And Theories
F 1153.2 Inst 1 Tailoring To Facts
F 1153.3 Prostitution: Engaging In Act—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1153.4 Prostitution: Engaging In Act—Burden Of Proof Issues
F 1153.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1153.5 Prostitution: Engaging In Act—Elements And Definitions
F 1153.5 Inst 1 “Lewd”—Implied Moral Depravity
F 1153.5 Inst 2 Separate Enumeration Of Combined Elements
F 1153.5 Inst 3 Committed vs. Engaged
F 1153.6 Prostitution: Engaging In Act—Defense Theories [Reserved]
F 1153.7 Prostitution: Engaging In Act—Preliminary Fact Issues [Reserved]
F 1153.8 Prostitution: Engaging In Act—Unanimity/Duplicity/Multiplicity [Reserved]
F 1153.9 Prostitution: Engaging In Act—Lesser Offense Issues [Reserved]
F 1153 Notes
F 1153 Note 1 Prostitution: Engaging In Act—CALCRIM Cross References And Research Notes
F 1153 Note 2 Prostitution During Performance: Requirement That Performance Be “Obscene” Under The First Amendment
F 1153 Note 3 No Such Crime As Aiding And Abetting Prostitution
F 1153 Note 4 Sex Crimes: Entrapment
Return to Series 1100 Table of Contents.
F 1153.1 Titles And Identification Of Parties
F 1153.1 Inst 1 Prostitution: Engaging In Act—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1153.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1153.2 Prostitution: Engaging In Act—Tailoring To Facts: Persons, Places, Things And Theories
F 1153.2 Inst 1 Tailoring To Facts
*Modify CC 1153, paragraph 2, as follows [added language is underlined; deleted language is stricken]:
To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully engaged in sexual intercourse or a lewd act with someone else _______________ <name of person alleged to have engaged in sex with defendant> in exchange for money [or other compensation].
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1153.3 Prostitution: Engaging In Act—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1153.4 Prostitution: Engaging In Act—Burden Of Proof Issues
F 1153.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1153.5 Prostitution: Engaging In Act—Elements And Definitions
F 1153.5 Inst 1 “Lewd”—Implied Moral Depravity
*Modify CC 1153, paragraph 2 and 3 as follows [added language is underlined; deleted language is stricken]:
To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully engaged in sexual intercourse or a lewd sexual act with someone else in exchange for money [or other compensation].
A lewd sexual act means touching the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification of either person.
Points and Authorities
See FORECITE F 1150.5 Inst 1.
F 1153.5 Inst 2 Separate Enumeration Of Combined Elements
*Modify CC 1153, paragraph 2, as follows [added language is underlined; deleted language is stricken]:
To prove that the defendant is guilty of this crime, the People must prove that the defendant:
1. Had [sexual intercourse] [committed a lewd act] with _______________ <name of person alleged to have engaged in sex with defendant>;
2. Did so willfully engaged in sexual intercourse or a lewd act with someone else;
3. In exchange for money [or other compensation].
Points and Authorities
See FORECITE F 3500.2 Inst 1.
F 1153.5 Inst 3 Committed vs. Engaged
*Modify CC 1153, paragraph 2, as follows [added language is underlined; deleted language is stricken]:
To prove that the defendant is guilty of this crime, the People must prove that the defendant willfully engaged in committed sexual intercourse or a lewd act with someone else in exchange for money [or other compensation].
Points and Authorities
See FORECITE F 1120.5 Inst 1.
F 1153.5 Inst 4 Prostitution: Acts In Furtherance Of Agreement Must Occur After The Agreement (PC 647(b))
*To be added at end of CC 1153:
An act is not done in furtherance of the “prostitution agreement” unless it occurs after the agreement is reached.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Post-Agreement Acts Only—PC 647b states that “no agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, 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 (1988) 201 CA3d Supp 1, 4-5, 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. (1999) 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.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 16.420a.
F 1153.6 Prostitution: Engaging In Act—Defense Theories[Reserved]
F 1153.7 Prostitution: Engaging In Act—Preliminary Fact Issues[Reserved]
F 1153.8 Prostitution: Engaging In Act—Unanimity/Duplicity/Multiplicity [Reserved]
F 1153.9 Prostitution: Engaging In Act—Lesser Offense Issues[Reserved]
F 1153 NOTES
F 1153 Note 1 Prostitution: Engaging In Act—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1150 Notes
CALCRIM 1150 [Pimping]
CALCRIM 1151 [Pandering]
CALCRIM 1152 [Child Procurement]]
CALCRIM 1154 [Prostitution: Soliciting Another
CALCRIM 1155 [Prostitution: Agreeing to Engage in Act]
CALCRIM 1156 [Loitering: For Prostitution]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
Annotation, Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness or assignation—modern cases, 77 ALR3d 519 and Later Case Service.
F 1153 Note 2 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 (1970) 1 C3d 821, 826 [“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. (1991) 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 (1999) 75 CA4th 347, 361-62 44] [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.)
CALJIC NOTE: See FORECITE F 16.420 n2.
F 1153 Note 3 No Such Crime As Aiding And Abetting Prostitution
See People v. Gibson (2001) 90 CA4th 371, 385-86 [only possible offense is that of pimping (PC 266h(a))].
CALJIC NOTE: See FORECITE F 16.420 n3.
F 1153 Note 4 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
