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F 16.456 n1 Loitering With Intent To Commit Prostitution (PC 653.22): Constitutional Challenge.
(See FORECITE F 16.455 n1.)
F 16.456a
Loitering With Intent To Commit Prostitution (PC 653.22):
Instruction On Statutory “Relevant Circumstances” As
Improper Pinpoint Instruction
*Modify CJ 16.456 as follows:
[Delete Paragraph 2, 3, Circumstances (1) through (5) and the last two paragraphs].
Points and Authorities
People v. Pulliam (98) 62 CA4th 1430 [73 CR2d 371] held that the “relevant circumstances” in PC 653.22 sufficiently narrows the statute to avoid constitutional challenge. (See FORECITE F 18.61 n1.) 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, CJ 16.456 is an improper argumentative pinpoint instruction which favors the prosecution. (People v. Wright (88) 45 C3d 1126, 1137 [248 CR 600]; see also People v. Roberts (92) 2 C4th 271, 313 [6 CR 2d 276]; People v. Wharton (91) 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 CJ 16.456 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 (91) 52 C3d 815, 871 [277 CR 122].)
Moreover, CJ 16.456 paragraph 9 improperly comments on the “probative” value of specific facts in the following passage: “Any circumstance identified in the preceding paragraph should be considered particularly probative if it occurred in an area that is known for prostitution activity.” Such an instruction is improper under Wright because it “implie[s] the weight to be derived from [the evidence].” (People v. Garceau (93) 6 C4th 140, 193 [24 CR2d 664].)
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 (54) 43 C2d 517, 526-27 [275 P2d 485]; 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 CJ 14.456.
