SERIES 1100 SEX OFFENSES
F 1156 Loitering: For Prostitution (PC 653.22(a))
TABLE OF CONTENTS
F 1156.1 Titles And Identification Of Parties
F 1156.1 Inst 1 Loitering: For Prostitution—Title
F 1156.1 Inst 2 Identification Of Prosecution And Defendant
F 1156.2 Loitering: For Prostitution—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1156.3 Loitering: For Prostitution—Language That Is Argumentative, Confusing, Etc.
F 1156.3 Inst 1 Loitering With Intent To Commit Prostitution (PC 653.22): Instruction On Statutory “Relevant Circumstances” As Improper Pinpoint Instruction
F 1156.4 Loitering: For Prostitution—Burden Of Proof Issues
F 1156.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1156.5 Loitering: For Prostitution—Elements And Definitions
F 1156.5 Inst 1 Jurors Must Consider Relevant Evidence
F 1156.6 Loitering: For Prostitution—Defense Theories [Reserved]
F 1156.7 Loitering: For Prostitution—Preliminary Fact Issues [Reserved]
F 1156.8 Loitering: For Prostitution—Unanimity/Duplicity/Multiplicity [Reserved]
F 1156.9 Loitering: For Prostitution—Lesser Offense Issues [Reserved]
F 1156 Notes
F 1156 Note 1 Loitering: For Prostitution—CALCRIM Cross-References And Research Notes
F 1156 Note 2 Loitering With Intent To Commit Prostitution (PC 653.22): Constitutional Challenge
F 1156 Note 3 Sex Crimes: Entrapment
Return to Series 1100 Table of Contents.
F 1156.1 Titles And Identification Of Parties
F 1156.1 Inst 1 Prostitution: Agreeing To Engage In Act—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1156.1 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 1156.2 Loitering: For Prostitution—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1156.3 Loitering: For Prostitution—Language That Is Argumentative, Confusing, Etc.
F 1156.3 Inst 1 Loitering With Intent To Commit Prostitution (PC 653.22): Instruction On Statutory “Relevant Circumstances” As Improper Pinpoint Instruction
*Modify CC 1156 as follows:
[Delete Paragraph 5, Circumstances (1) through (5) and the last two paragraphs].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Improper To Instruct On Specific Circumstances—People v. Pulliam (1998) 62 CA4th 1430 held that the “relevant circumstances” in PC 653.22 sufficiently narrow the statute to avoid constitutional challenge. (See FORECITE F 1156 Note 2.) However, Pulliam did not authorize instruction of the jury upon these specific factual circumstances. By relating specific “established” facts to the legal issue of intent, CALCRIM 1156 is an improper argumentative pinpoint instruction which favors the prosecution. (People v. Wright (1988) 45 C3d 1126, 1137; see also People v. Roberts (1992) 2 C4th 271, 313; People v. Wharton (1991) 53 C3d 522, 570-71.)
In Wright, the court condemned special instructions that “would invite the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact” because such instructions are argumentative and therefore belong in the argument of counsel and not in the instructions to the jury. (Id. at p. 1135.) Yet this is precisely what CC 1156 does. It focuses the jury on certain “established circumstances” and implies that such circumstances may raise an inference favorable to the prosecution on the disputed issue of intent. “In a proper instruction, ‘[w]hat is pinpointed is not specific evidence as such, but the theory of the defendant’s case.’ [Citation.]” (Emphasis in original. Wright, supra, at 1137.) An instruction which does not pinpoint a theory, “but instead ask[s] the jury to consider the impact of specific evidence, [a]lthough neutrally phrased…may nevertheless be rejected as argumentative under Wright….” (People v. Daniels (1991) 52 C3d 815, 871.)
Nor should there be a distinction between pinpoint instructions which favor the defense as opposed to those which favor the prosecution. “There should be absolute impartiality as between the People and the defendant in the matter of instructions ….” (People v. Moore (1954) 43 C2d 517, 526-27; accord, Reagan v. United States (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610]; see also FORECITE PG VII(C)(21).)
Accordingly, the improper reference to specific circumstances should be deleted from CC 1156.
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 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
FORECITE CG 6.5 [Instructions Must Be Balanced Between Defense and Prosecution]
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 16.456a.
F 1156.4 Loitering: For Prostitution—Burden Of Proof Issues
F 1156.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1156.5 Loitering: For Prostitution—Elements And Definitions
F 1156.5 Inst 1 Jurors Must Consider Relevant Evidence
*Modify CC 1156, paragraph 6, as follows:
You should Also consider whether any of these activities occurred in an area known for prostitution.
Points and Authorities
See FORECITE F 105.2 Inst 1.
F 1156.6 Loitering: For Prostitution—Defense Theories[Reserved]
F 1156.7 Loitering: For Prostitution—Preliminary Fact Issues[Reserved]
F 1156.8 Loitering: For Prostitution—Unanimity/Duplicity/Multiplicity [Reserved]
F 1156.9 Loitering: For Prostitution—Lesser Offense Issues[Reserved]
F 1156 Note 1 Loitering: For Prostitution—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1150 Notes
See FORECITE F 1151 Notes
See FORECITE F 1152 Notes
See FORECITE F 1153 Notes
CALCRIM 1150 [Pimping]
CALCRIM 1151 [Pandering]
CALCRIM 1152 [Child Procurement]
CALCRIM 1153 [Prostitution: Engaging in Act]
CALCRIM 1154 [Prostitution: Soliciting Another]
CALCRIM 1155 [Prostitution: Agreeing to Engage in Act]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1156 Note 2 Loitering With Intent To Commit Prostitution (PC 653.22): Constitutional Challenge
A loitering /prostitution statute may be subject to constitutional challenge unless it includes a specific intent to commit prostitution. Some courts have struck down statutes prohibiting “loitering for prostitution” laws. (See e.g., Brown v. Anchorage (AK 1978) 584 P2d 35; Profit v. Tulsa (OK 1980) 617 P2d 250; see also City of Chicago v. Morales (1999) 527 US 41 [144 LEd2d 67; 119 SCt 1849] [criminal liability for loitering without any apparent purpose violates due process. The majority and concurring opinion concluded that “apparent purpose” is too vague because it leaves the decision of who is violating the law to the police].) The statutes in those states were interpreted to permit conviction even though the loiterer had no intent to commit prostitution. Hence, these statutes were struck down because they permitted conviction based on the fact that the defendant was a known prostitute and hence the liability was based on status in violation of the federal constitution. In California, the prostitution/loitering statute (PC 653.22) has been interpreted to require a specific intent to commit prostitution. (People v. Pulliam (1998) 62 CA4th 1430, 1434; see also FORECITE F 18.61 n1 [Constitutional Challenge To HS 11532: Loitering With Intent To Commit Drug Offense].)
CALJIC NOTE: See FORECITE F 16.455 n1.
F 1156 Note 3 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.