Return to CALJIC Part 9-12 – Contents
F 10.71 n1 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
F 10.71 n2 Pimping/Pandering: Requirement Of Physical Contact Between Prostitute And Customer.
See FORECITE F 10.70 n2.
F 10.71a
Pandering: Not Applicable To Payment Of
Wages To Act Or Model For Film Or Publication
(PC 266i)
*To be added at the conclusion of CJ 10.71:
The payment of wages to an actor or model who performs a sexual act in filming or photographing for a publication is not sufficient to convict the defendant of the charge of pandering.
Points and Authorities
If a person pays a model or actor to perform sexual acts in filming or photographing for publication, the actual sexual conduct is not unlawful so long as it is between consenting adults and not open to the public. (People v. Freeman (88) 46 C3d 419, 429 [250 CR 598].) Moreover, unless the film or publication has been determined to be “obscene,” there is no illegality in the procurement of the sexual act. (Id. at 428, fn 6.)
Therefore, if the charges are founded upon such conduct, or if the defense relies upon such circumstances to negate guilt, the above supplement to CJ 10.71 should be given.
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 10.71b
Pandering: Defined – Inapplicable To Nude Modeling
(PC 266i)
*Add to CJ 10.71 when appropriate:
Nude modeling does not constitute an act of prostitution and, therefore, the act of procuring a person solely for the purpose of nude modeling does not constitute the crime of pandering.
Points and Authorities
In People v. Hill (80) 103 CA3d 525, 537 [163 CR 99], the court held that it was reversible error for the court to fail to sua sponte instruct the jury as set forth above.
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).]
RESEARCH NOTES
See 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.
