People v. Zambia

Filed 6/2/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S173490

v. )

) Ct.App. 2/5 B207812

)

JOMO ZAMBIA, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. LA055997

____________________________________)

Defendant Jomo Zambia was convicted of pandering in violation of Penal

Code section 266i, subdivision (a)(2),1 which defines pandering as encouraging

“another person to become” a prostitute.2 Here, the target of defendant‟s

1 All further statutory references are to the Penal Code.

2 The full text of section 266i follows:

“(a) Except as provided in subdivision (b), any person who does any of the

following is guilty of pandering, a felony, and shall be punishable by

imprisonment in the state prison for three, four, or six years:

“(1) Procures another person for the purpose of prostitution.

“(2) By promises, threats, violence, or by any device or scheme, causes,

induces, persuades, or encourages another person to become a prostitute.

“(3) Procures for another person a place as an inmate in a house of

prostitution or as an inmate of any place in which prostitution is encouraged or

allowed within this state.

“(4) By promises, threats, violence, or by any device or scheme, causes,

induces, persuades, or encourages an inmate of a house of prostitution, or any

(footnote continued on next page)

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encouragement was an undercover police officer. He contends that section 266i,

subdivision (a)(2) does not apply when the target is already a prostitute or an

undercover police officer acting as one. The trial and appellate court rejected this

argument. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 8, 2007, Officer Erika Cruz was working undercover as a street

prostitute in Los Angeles. Defendant drove past her, looked in her direction, made

a U-turn, and stopped about 15 feet across the street from her. Defendant lowered

his window and told Cruz to get into his truck. When Cruz asked why, defendant

said he was a pimp. The officer told him to back up so they could talk. As he did

(footnote continued from previous page)

other place in which prostitution is encouraged or allowed, to remain therein as an

inmate.

“(5) By fraud or artifice, or by duress of person or goods, or by abuse of

any position of confidence or authority, procures another person for the purpose of

prostitution, or to enter any place in which prostitution is encouraged or allowed

within this state, or to come into this state or leave this state for the purpose of

prostitution.

“(6) Receives or gives, or agrees to receive or give, any money or thing of

value for procuring, or attempting to procure, another person for the purpose of

prostitution, or to come into this state or leave this state for the purpose of

prostitution.

“(b) Any person who does any of the acts described in subdivision (a) with

another person who is a minor is guilty of pandering, a felony, and shall be

punishable as follows:

“(1) If the other person is a minor 16 years of age or older, the offense is

punishable by imprisonment in the state prison for three, four, or six years.

“(2) If the other person is under 16 years of age, the offense is punishable

by imprisonment in the state prison for three, six, or eight years.”

2

so, Cruz called Officer Paschal, her “security officer” to report that she was

possibly “working a pimp.”

Standing by the defendant‟s open passenger-side window, Officer Cruz saw

cell phones on the truck‟s center console. Defendant again told her to get in the

truck, repeating that he was a pimp. Cruz asked what defendant meant. He said

that he would “take care of [her]” and asked how much money she had in her

possession. Hearing that she had $400, defendant said if she gave the money to

him, he would provide her with housing and clothing.

Officer Cruz hesitated, telling defendant she was not comfortable.

Defendant told her he was a legitimate businessman, showed her a business card,

and said he would not “strong-arm” her, which Cruz understood to mean to take

her money by force. Cruz testified that defendant used an aggressive tone of voice

and demeanor. She characterized him as acting like a “gorilla pimp,” or one who

uses “verbal threats and violence to get their way and to scare prostitutes into

working for them.” Cruz asked defendant if she could continue to work the same

neighborhood. Defendant told her she could and that he would “just take care of

[her].”

At this point, Officer Cruz alerted her backup unit. Defendant was arrested

and charged with one count of pandering. (§ 266i, subd. (a)(2).)

In addition to Officer Cruz‟s testimony summarized above, Officer Paschal

testified that pimps commonly provide condoms to their prostitutes, and use

multiple cell phones to contact them. When she arrested defendant, Paschal found

cell phones, condoms, and a business card on the truck‟s console. Paschal testified

that pimps often give their prostitutes a business card with a phone number to

3

facilitate contact.3 Paschal also explained that pimps often have prostitutes work

on the street to solicit sex acts for money. The prostitutes turn their money over to

the pimp, who provides food, clothing, and other services.

Defendant did not testify. His mother testified that he lived at her home

and worked in her family-owned janitorial business. Defendant would usually

work between 6:00 p.m. and 12:30 a.m. He carried one working mobile phone,

but also had a broken one in his car, along with a third that he had borrowed from

a friend. She explained that defendant was clumsy and often broke his phones.

She recognized two of the three phones found in defendant‟s vehicle as well as

defendant‟s business card from the family business.

Defendant‟s fiancée testified that his work hours varied, but that he would

often return to his jobsite to pick up equipment in the early morning. She

recognized the three cell phones found in defendant‟s truck, and had no reason to

believe defendant was a pimp.

Defendant was convicted by jury and sentenced to four years in prison.

The Court of Appeal affirmed.

DISCUSSION

At issue here is the proper construction of section 266i, subdivision (a)(2),

which provides in pertinent part that any person who “[b]y promises, threats,

violence, or by any device or scheme, causes, induces, persuades, or encourages

another person to become a prostitute” is guilty of pandering.

3 Sergeant Alan Kreitzman, who was in charge of the investigation, testified

that pimps carry business cards and show them to prospective prostitutes to give

the appearance of legitimacy.

4

“In construing any statute, we first look to its language. [Citation.] „Words

used in a statute . . . should be given the meaning they bear in ordinary use.

[Citations.] If the language is clear and unambiguous there is no need for

construction, nor is it necessary to resort to indicia of the intent of the

Legislature . . . .‟ [Citation.] „If the language permits more than one reasonable

interpretation, however, the court looks “to a variety of extrinsic aids, including

the ostensible objects to be achieved, the evils to be remedied, the legislative

history, public policy, contemporaneous administrative construction, and the

statutory scheme of which the statute is a part.” [Citation.]‟ [Citation.]” (S. B.

Beach Properties v. Berti (2006) 39 Cal.4th 374, 379.) A statute “ „must be given

a reasonable and common sense interpretation consistent with the apparent

purpose and intention of the lawmakers, practical rather than technical in nature,

which upon application will result in wise policy rather than mischief or

absurdity.‟ ” (City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847,

858, quoting DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18.)

“ „The meaning of a statute may not be determined from a single word or

sentence; the words must be construed in context, and provisions relating to the

same subject matter must be harmonized to the extent possible.‟ ” (Lakin v.

Watkins Associated Industries (1993) 6 Cal.4th 644, 659.)

Defendant argues that section 266i, subdivision (a)(2)‟s phrase “to become

a prostitute” does not include encouraging a person who is already a prostitute, or

is posing as one. The People argue that the better view is that “to become a

prostitute” means to “engage in any future acts of prostitution,” regardless of the

victim‟s status at the time of a defendant‟s encouragement.

With a single exception, an unbroken line of cases, beginning with People

v. Bradshaw (1973) 31 Cal.App.3d 421 (Bradshaw), has rejected defendant‟s

5

argument. In Bradshaw, the defendant tried to persuade an undercover police

officer to work in a house of prostitution under his supervision. The defendant

was charged under section 266i with “procuring, causing, inducing, persuading

and encouraging” the victim to become a prostitute.4 (Bradshaw, at p. 423.) At

trial, the prosecution contended that while the defendant did not successfully cause

the officer “to become a prostitute,” he encouraged her to do so and thus violated

former subdivision (b) (now subd. (a)(2)) of section 266i. (Bradshaw, at p. 424.)

The court held that former subdivision (b) includes “cases where a defendant has

solicited one whom he believes to be a former prostitute to re-enter the profession

and a defendant who solicits one whom he believes presently to be a prostitute to

change her business relations.” (Bradshaw, at p. 426.) Accordingly, Bradshaw

stands for the proposition that a defendant can be convicted of pandering even if

the target is already a prostitute, or a person posing as one, if the defendant

encourages the target to change “business relations.” (Ibid.)5

Our courts have repeatedly followed Bradshaw and have concluded that the

phrase “to become a prostitute” includes both recruiting someone to enter the

prostitution trade for the first time and encouraging an existing prostitute, or an

undercover officer, to work for him or someone else under some type of new

business relationship. (See People v. Hashimoto (1976) 54 Cal.App.3d 862, 865-

4 The court specifically noted that the defendant was not charged under the

pandering statutes as they applied to houses of prostitution. (Bradshaw, supra, 31

Cal.App.3d at p. 423, fn. 3.)

5 Bradshaw also argued that “encourage” implied success and that “to

become” necessarily means that the victim could not have been a prostitute before

defendant‟s persuasive activities. (Bradshaw, supra, 31 Cal.App.3d at p. 424.)

The court held that “success is not a necessary element of the offense proscribed

by the word „encourage‟ as used in subdivision (b) of section 266i.” (Id. at p.

425.)

6

866 (Hashimoto); People v. Patton (1976) 63 Cal.App.3d 211, 218 (Patton);

People v. DeLoach (1989) 207 Cal.App.3d 323, 333 (DeLoach).)

Courts have noted the purpose of the pandering statute in reaching this

outcome. In Hashimoto, supra, 54 Cal.App.3d 862, the defendant ran a travel

agency catering to foreign tourists. An undercover officer spoke with the

defendant saying she had “been informed that he was hiring girls to work for

him.” (Id. at p. 865.) The defendant said he would refer to the officer those

clients of his who were seeking the services of a prostitute. Told that the officer

charged $75 per client, the defendant negotiated a reduced rate of $50 for his

referrals, urging that the volume of customers he supplied would offset the

discounted price. (Ibid.) In affirming the defendant‟s pandering conviction, the

court noted, “The purpose of the anti-pandering statute [citation] is to „cover all

the various ramifications of the social evil of pandering and include them all in the

definition of the crime, with a view of effectively combating the evil sought to be

condemned.‟ [Citations.]” (Id. at p. 866.) It concluded that the Legislature not

only wanted to stop the launching of a new prostitute‟s career but also to prevent

prostitution “by discouraging persons other than the prostitute from augmenting

and expanding a prostitute‟s operation, or increasing the supply of available

prostitutes. [Citations.]” (Id. at p. 867; see also People v. Montgomery (1941) 47

Cal.App.2d 1, 24, disapproved on other grounds in Murgia v. Municipal Court

(1975) 15 Cal.3d 286, 301, fn. 11.) This analysis recognizes that when a pimp

offers protection and support to a prostitute in return for some or all of her income,

the offer increases the likelihood that the prostitute will be able to maintain or

expand her activities, an outcome squarely at odds with the statutory goal.

In Patton, supra, 63 Cal.App.3d 211, the defendant encouraged a teenage

runaway, who had been working as a prostitute, to come work for him. He offered

7

her housing, bail money when needed, and other inducements. Convicted of

pandering, the defendant raised the very question involved here, arguing: “[A]

woman cannot become a prostitute if she already is one . . . .” (Id. at p. 215.)

While he acknowledged that Bradshaw and Hashimoto stood against him, the

defendant relied on out-of-state cases and “sound considerations of public policy.”

(Patton, at p. 217.) He urged solicitation of a “virtuous woman” was more

blameworthy than the encouragement of an established prostitute who would

“generally have been coarsened by previous acts of prostitution.” (Id. at pp. 217-

218.)

The Patton court rejected the defendant‟s claim, noting, “The fallacy

involved in this reasoning is the assumption that the Legislature was concerned

only with actual, rather than potential, harm.” (Patton, supra, 63 Cal.App.3d at p.

218.) Thus, the focus is not on the character of a defendant‟s target, but on the

social harm inherent in the defendant‟s conduct. The Patton court agreed with

Bradshaw and Hashimoto, noting, “A substantial potential for social harm is

revealed even by the act of encouraging an established prostitute to alter her

business relations. Such conduct indicates a present willingness to actively

promote the social evil of prostitution.” (Patton, at p. 218.)

DeLoach, supra, 207 Cal.App.3d 323, shows how defendant‟s theory here

could be used to subvert the goal of the statute, and insulate predatory behavior

from punishment. Barbara DeLoach had been repeatedly incarcerated for various

felonies, including armed robbery. Paroled from her most recent imprisonment,

she returned to live with her two daughters, ages 10 and 14, supplementing her

welfare income by prostitution. To avoid police suspicion, she often took her

older child, S., with her while she plied her trade. One night, a potential customer

asked for an interlude with S., rather than with DeLoach. DeLoach urged her

8

daughter to accept the solicitation, but S. refused. A few days later, they

encountered the same man and DeLoach threatened to beat S. if she did not go

with him. The man engaged in multiple sex acts with S. and gave her $70, which

DeLoach demanded when S. was returned by the customer. Several weeks later,

DeLoach turned S. over to the same man, who again paid her for a sexual

encounter. (Id. at pp. 331-332.) DeLoach was charged with multiple crimes,

including two counts of pandering. She was convicted on both counts. On appeal,

she conceded guilt of the first offense. Challenging the other count, however, she

argued that she could not be convicted of pandering on the second occasion

because she had already made S. a prostitute. Thus, because S. was already a

prostitute, DeLoach argued she could not be convicted of causing her to become

one during the second incident. (Ibid.)

The Court of Appeal correctly rejected DeLoach‟s argument that, because

she had coerced S. to act as a prostitute the first time, she was insulated from

punishment for pandering the second time. The court stated, “[DeLoach] did not

transform S. into a prostitute for all time the first time she forced her daughter to

go with [the customer]. The interpretation of Penal Code section 266i urged by

appellant would require us to stigmatize the victim in this case as with a new form

of Scarlet Letter. We decline to do so.” (DeLoach, supra, 207 Cal.App.3d at

p. 334.)

The interpretation urged by defendant could also lead to mischievous and

potentially absurd results. (See City of Poway v. City of San Diego, supra, 229

Cal.App.3d at p. 858.) Trial court and appellate inquiry might be required to tease

out just who might qualify as an “active prostitute.” Would the defense be

available only if the pimp‟s overture was made while his target was actually

engaged in soliciting? Would people qualify as active prostitutes only if that was

9

their sole occupation, or would occasional resort to prostitution be sufficient?

Would it make a difference if the prostitute also had legitimate employment?

Would a hiatus of weeks or months transform an “active prostitute” into a former

or inactive one? There is nothing in the legislative history or decades of case law

that even remotely suggests an intent to raise these esoteric inquiries.

The language of the pandering statute describes current conduct on the part

of the defendant: inducing and encouraging. That current conduct is aimed at

producing subsequent conduct by the target: that the target thereafter engage in

acts of prostitution following a defendant‟s inducement or encouragement. To

encourage an established prostitute to change her business relationship necessarily

implies that a defendant intends a victim “to become a prostitute” in the future

regardless of her current status. We also think it safe to say that someone who

encourages another to become a prostitute is seldom giving disinterested advice

about a possible career path. The phrase “encourages another person to become a

prostitute” can readily be understood to encompass the goal that the target

“become a prostitute” in the future for the benefit of the encourager or some other

pimp. (§ 266i, subd. (a)(2).) This interpretation of the pandering statute is

consistent with long-standing case law and the Legislature‟s intent to combat

pandering and prostitution.

It is also significant that section 266i has been amended six times since

Bradshaw was decided in 1973, without any attempt by the Legislature to alter the

interpretation set out above. “When a statute has been construed by the courts,

and the Legislature thereafter reenacts that statute without changing the

interpretation put on that statute by the courts, the Legislature is presumed to have

been aware of, and acquiesced in, the courts‟ construction of that statute.” (People

v. Bouzas (1991) 53 Cal.3d 467, 475.) In Bouzas, the statutes at issue were

10

amended 10 times over 73 years without any attempt to alter the courts‟ consistent

interpretation of them. We concluded that “the Legislature acquiesced in and

ratified the judicial interpretation of the . . . [statutes], and intended that the present

version . . . receive a like interpretation.” (Ibid.) Here, we have a similar pattern

of legislative inaction signaling acquiescence, as there exists “both a well-

developed body of law interpreting a statutory provision and numerous

amendments to a statute without altering the interpreted provision . . . .” (Olson v.

Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1156.)

People v. Wagner (2009) 170 Cal.App.4th 499, is the lone exception to the

Bradshaw line of cases. There, the defendant was convicted under section 266i,

subdivision (a)(2) after he unsuccessfully tried to pressure an active prostitute to

come work for him. (Wagner, at p. 502.) He argued that the trial court erred by

giving a modified jury instruction specifying that pandering occurs when “the

defendant encourages or solicits one who is already a prostitute to „change her

business relationship.‟ ” (Ibid.) The Court of Appeal reversed the defendant‟s

conviction and criticized the established case law set out above as “utterly

unconvincing.” (Id. at p. 506.) The Wagner court concluded that the settled

interpretation in place for decades was wrong because it is impossible to solicit a

woman who was “currently” a prostitute to become one. (Id. at pp. 509-511.) It

stated, “We feel this statute is clear. The language defining the crime as occurring

when a defendant induces or encourages someone else to „become a prostitute‟

seems fairly clear in its exclusion of efforts to importune someone currently

engaged in that profession to change management. If the Legislature had wanted a

more broadly applicable provision, it could have easily replaced the phrase

„become a prostitute‟ with the phrase „engage in prostitution.‟ We cannot simply

assume it meant the latter when it said the former.” (Id. at p. 509.)

11

The Attorney General argues that Wagner rests on the misplaced notion that

the Legislature intended to narrowly define and restrict the acts that constitute

pandering. We agree. Wagner literally and narrowly reads the phrase “to become a

prostitute” found in section 266i, subdivision (a)(2), in isolation from the remaining

words and provisions of the pandering statute. Such an approach is contrary to

established principles of statutory construction. Our obligation in this case is to

construe section 266i to ascertain the intent of the Legislature and give effect to the

intended purpose of the statute. “The words of the statute must be construed in

context, keeping in mind the statutory purpose, and statutes or statutory sections

relating to the same subject must be harmonized, both internally and with each other,

to the extent possible. [Citations.] Where uncertainty exists consideration should be

given to the consequences that will flow from a particular interpretation. [Citation.]

Both the legislative history of the statute and the wider historical circumstances of its

enactment may be considered in ascertaining the legislative intent.” (Dyna-Med, Inc.

v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)

Considering subdivision (a)(2) in the context of the other provisions of the

statute reveals that the intent and purpose behind section 266i, subdivision (a)(2) is to

prohibit a person from encouraging a prostitute to work under his aegis or that of

someone else, regardless whether the target being solicited is already a working

prostitute.

Subdivision (a) contains six subparts. As noted, subdivision (a)(2), proscribes

conduct that “[b]y promises, threats, violence, or by any device or scheme, causes,

induces, persuades, or encourages another person to become a prostitute.” (§ 266i,

subd. (a)(2).)

Subdivision (a)(1) criminalizes the “[p]rocur[ing of] another person for the

purpose of prostitution.” (§ 266i, subd. (a)(1), italics added.) Whether taken literally

12

or figuratively, there is no reason to conclude the term “another person” as used in

subdivision (a)(1) would not encompass both prostitutes and nonprostitutes, as either

can plainly be “procured” for the purpose of prostitution.

Subdivision (a)(3) criminalizes “[p]rocur[ing] for another person a place as an

inmate in a house of prostitution or as an inmate of any place in which prostitution is

encouraged or allowed within this state.” (§ 266i, subd. (a)(3), italics added.) Here

again, the term “another person” encompasses all persons, regardless of their current

employment pursuits.

Subdivision (a)(4) criminalizes conduct that “[b]y promises, threats, violence,

or by any device or scheme, causes, induces, persuades, or encourages an inmate of a

house of prostitution, or any other place in which prostitution is encouraged or

allowed, to remain therein as an inmate.” (§ 266i, subd. (a)(4), italics added.)

Subdivision (a)(4) does not use the term “another person.” But it specifically

proscribes targeting those who are already in “a house of prostitution.” In short,

subdivision (a)(4) applies to active prostitutes.

Subdivision (a)(5) criminalizes conduct that “[b]y fraud or artifice, or by

duress of person or goods, or by abuse of any position of confidence or authority,

procures another person for the purpose of prostitution, or to enter any place in which

prostitution is encouraged or allowed within this state, or to come into this state or

leave this state for the purpose of prostitution.” (§ 266i, subd. (a)(5), italics added.)

Once again, the term “another person,” as used in subdivision (a)(5), applies to any

solicited target, active prostitute or otherwise.

Finally, subdivision (a)(6) authorizes the prosecution of anyone who

“[r]eceives or gives, or agrees to receive or give, any money or thing of value for

procuring, or attempting to procure, another person for the purpose of prostitution, or

to come into this state or leave this state for the purpose of prostitution.” (§ 266i,

13

subd. (a)(6), italics added.) The term “another person” as used in this subdivision also

applies to any victim, regardless whether that victim is already acting as a prostitute.

In conducting our statutory analysis, we reiterate that “[t]he words of [a]

statute must be construed in context, keeping in mind the statutory purpose, and

statutes or statutory sections relating to the same subject must be harmonized, both

internally and with each other, to the extent possible.” (Dyna-Med, Inc. v. Fair

Employment & Housing Com., supra, 43 Cal.3d at p. 1387.) Subdivision (a)(1), and

(a)(3) through (a)(6), of section 266i, when harmonized and read together in context,

plainly envision that any solicited “person,” whether an active prostitute or not, may

be the target of unlawful pandering. The plain intent and purpose behind all the

provisions of section 266i, taken together, is to deter pimps or others from

establishing new working relationships in the unlawful prostitution trade. Our

appellate courts have long recognized that California‟s pandering statute “ „cover[s]

all the various ramifications of the social evil of pandering and include[s] them all in

the definition of the crime, with a view of effectively combating the evil sought to be

condemned.‟ ” (Hashimoto, supra, 54 Cal.App.3d at p. 866.)

It would be unreasonable and inconsistent to give the term “another person” a

different meaning in subdivision (a)(2) from the meaning that term has when used in

other subdivisions of the same statute. (§ 266i, subd. (a)(2).) Long-standing authority

explains how the phrase “to become a prostitute” can and should be construed in

harmony with the intent and purpose of the statute as a whole. Because Wagner

brought to light ambiguity in the statutory language, we also look beyond the words

of the provision to the Legislature‟s intent in enacting it. (S. B. Beach Properties v.

Berti, supra, 39 Cal.4th at p. 379.)

Defendant‟s reasoning rests on the flawed “assumption that the Legislature

was concerned only with actual, rather than potential, harm.” (Patton, supra, 63

14

Cal.App.3d at p. 218.) “[T]he relevant social policy question is the potential for

harm which defendant‟s conduct reveals. A substantial potential for social harm is

revealed even by the act of encouraging an established prostitute to alter her

business relations. Such conduct indicates a present willingness to actively

promote the social evil of prostitution.” (Ibid.) As noted, the Legislature intended

section 266i to “ „cover all the various ramifications of the social evil of pandering

and include them all in the definition of the crime, with a view of effectively

combating the evil sought to be condemned.‟ ” (Hashimoto, supra, 54 Cal.App.3d

at p. 866, quoting People v. Montgomery, supra, 47 Cal.App.2d at p. 24.) 6

6 Legislative intent in support of a broad interpretation of the phrase

“encourages another person to become a prostitute” is exemplified by the

Legislature‟s 1969 enactment of Assembly Bill No. 818 (1969 Reg. Sess.)

section 2, amending section 266i. The amendment expanded the definition of

pandering “by providing that pandering consists of procuring any prostitute—

male or female—for prostitution. The act need not relate to a house of

prostitution.” (Assem. Com. on Criminal Procedure, Digest of Assem. Bill No.

818 (1969 Reg. Sess.) May 5, 1969.)

The Legislature understood that then-existing law recognized pandering as

procuring only women for houses of prostitution. Assemblyman Robert Beverly,

author of Assembly Bill No. 818, summed up the situation: “The intent of this

measure is to plug existing loopholes in laws dealing with prostitution and related

offenses . . . . [¶] We have had thrust upon us the male prostitute, and the female

pimp, both of which have complicated the efforts of enforcement against

commercialized prostitution activities. [¶] The existing Pimping and Pandering

Statutes refer to female prostitutes, male pimps, and houses of prostitution. [¶]

By this legislation, any person, rather than males only, may commit the crime of

pimping when they derive support from the earnings of any prostitute, rather than

female prostitutes only. [¶] In addition, the legislation provides that the crime of

pandering is complete when a person procures any other person for the purpose of

prostitution, rather than the procuring of a female person to become an inmate of a

house of prostitution.” (Assemblyman Robert G. Beverly, letter to June R.

McKinnon on Assem. Bill No. 818 (1969 Reg. Sess.) Aug. 11, 1969, italics

added.)

15

Consideration of the intent required to violate section 266i, subdivision (a)(2)

also reveals additional problems with the narrow interpretation of that subdivision

proffered by defendant and the Wagner court. We note that there is a split in

authority regarding the intent required to commit an act of pandering. (See Judicial

Council of Cal., Crim. Jury Instns. (2011) Bench Notes to CALCRIM No. 1151,

p. 1000.) In People v. Montgomery, supra, 47 Cal.App.2d at page 16, the court held

that pandering does not require specific intent. The Montgomery court stated, “The

crime of pandering does not necessarily involve the question of specific intent. . . .

[A]ll that is required . . . is the commission of any one of the acts set forth [in the

pandering statute], and the only intent required is that the act be voluntarily done or

performed by the person charged, with full knowledge of its nature. . . . Anyone who

knowingly takes a part in the evil practice condemned is guilty of a violation of the

law regardless of the state of his mind with relation to the act in question.” (Ibid.)

But in People v. Mathis (1985) 173 Cal.App.3d 1251, 1256, the court

concluded that pandering requires “a specific intent to influence a person to become a

prostitute.” The Mathis court explained: “It requires the defendant to cause, induce,

persuade or encourage another person to become a prostitute; and the causing,

inducing, encouraging or persuading must be accomplished by promises, threats,

violence or any device or scheme. Implicit in the necessity of both of these elements

of the crime is the inference of a specific intent to influence a person to become a

prostitute. While evidence of such a mental state is likely to be circumstantial and, in

a given case, the intent to influence may well be inferred from acts of assistance, „we

cannot extrapolate therefrom, as a matter of law, that the inference must be drawn.

Intent [to influence] is what must be proved . . . .‟ ” (Id. at p. 1256, fn. omitted.)

We clarify here that pandering is a specific intent crime. Its commission

requires that a defendant intends to persuade or otherwise influence the target “to

16

become a prostitute” as that phrase has been interpreted here. This construction of

section 266i, subdivision (a)(2) effectuates the purpose and intent of the pandering

statute, which is to criminalize the knowing and purposeful conduct of any person

seeking to encourage “another person” to work with the panderer or another pimp in

plying the prostitution trade. The long-standing and broader construction of the

phrase “encourages another person to become a prostitute” places the focus on the

defendant‟s unlawful actions and intent, rather than making the targeted victim‟s

character or occupation the determinative factors for conviction.

Defendant also argues that section 266i as a whole reflects a legislative intent

to limit pandering to those who target nonprostitutes except in the case of prostitutes

working in houses of prostitution.

Defendant relies on section 266i, subdivision (a)(4), which punishes as a

panderer one who “[b]y promises, threats, violence or by any device or scheme,

causes, induces, persuades or encourages an inmate of a house of prostitution, or

any other place in which prostitution is encouraged or allowed, to remain therein

as an inmate.” (Italics added.) Defendant argues that if encouraging someone to

continue to be a prostitute is pandering under subdivision (a)(2), then subdivision

(a)(4)‟s phrase “to remain” is redundant. Defendant‟s analysis is flawed.

Both subdivision (a)(3) and (a)(4) of section 266i address the specific issue

of brothels. Subdivision (a)(3) prohibits placing a person in a brothel, and

subdivision (a)(4) prohibits compelling or encouraging a brothel inmate to remain

there. Neither subdivision (a)(3) nor (a)(4) uses the phrase “to become a

prostitute.” The People point out that the Legislature intended subdivision (a)(3)

and (a)(4) to address the inherently coercive atmosphere in brothels, recognizing

that delivering victims to a brothel, or acting to keep them there, are sufficiently

evil acts whether or not the actor encourages or pressures the victim “to become” a

17

prostitute once there. Neither subdivision (a)(2)‟s use of the phrase “to become”

nor subdivision (a)(4)‟s use of “to remain” refers to the activities of the victim, but

instead focuses on the panderer‟s conduct. Accordingly, our interpretation of

subdivision (a)(2)‟s use of the phrase “to become” a prostitute does not render

subdivision (a)(4)‟s “to remain” language redundant. The interpretation affirmed

here harmonizes the various subdivisions of section 266i in a reasonable manner.

It carries out the Legislature‟s intent to combat the social evils inherent in

recruitment for acts of prostitution, the perpetuation of the trade by the

management and support offered by pimps, and the particularly coercive and

socially dysfunctional activities associated with brothels.7

Accordingly we conclude that the proscribed activity of encouraging

someone “to become a prostitute,” as set forth in section 266i, subdivision (a)(2),

includes encouragement of someone who is already an active prostitute, or

undercover police officer. People v. Wagner, supra, 170 Cal.App.4th 499, and

People v. Montgomery, supra, 47 Cal.App.2d 1, are disapproved to the extent they

are inconsistent with this opinion.

7 Defendant claims that if we affirm the Court of Appeal, pandering would

either become a lesser included offense of pimping or merge with it. This

contention lacks merit. By the express requirements of the respective statutes, a

conviction of pimping does not necessarily constitute a conviction of pandering.

(Compare §§ 266h and 266i; see 2 Witkin & Epstein, Cal. Criminal Law (3d ed.

2000) Sex Offenses and Crimes Against Decency, § 70, p. 382 [“[T]he crime of

pandering, as defined by P.C. 266i, is distinct from that of pimping [Citation].”].)

It is possible to commit one offense without committing the other.

We also reject defendant‟s contention that the rule of lenity is applicable.

(See People v. Avery (2002) 27 Cal.4th 49, 58; 1 Witkin & Epstein, Cal. Criminal

Law (3d ed. 2000) Introduction to Crimes, § 24, p. 53 [“The . . . rule applies only

if the court can do no more than guess what the legislative body intended; there

must be an egregious ambiguity and uncertainty to justify invoking the rule.”].)

18

We also reject defendant‟s contention that there was insufficient evidence

that he encouraged anyone to become a prostitute. Officer Cruz testified that

defendant offered his services as a pimp by telling her he would provide her with

protection, housing, and clothing if she turned her earnings over to him.

Defendant twice identified himself as a pimp, assured Officer Cruz that she could

continue to work in the same area, and promised that he would “take care of

[her].” The evidence was sufficient and supports the judgment.8

8 To the extent that defendant argues that he could not be convicted of

anything more than attempted pandering because there was no possibility that

Officer Cruz would become a prostitute, the contention fails. The statute is clear

that the crime of pandering is complete when the defendant “encourages another

person to become a prostitute” by “promises, threats, violence, or by any device or

scheme . . . .” (§ 266i, subd. (a)(2).) There is no requirement that defendant

succeed. (Bradshaw, supra, 31 Cal.App.3d at p. 425.) Nor is there a requirement

that, in selecting his targets, the panderer choose only those who present a high

probability of success. Again, the focus is on the actions and intent of the

panderer, not the target.

19

DISPOSITION

The Court of Appeal‟s judgment is affirmed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

CHIN, J.

BAMATTRE-MANOUKIAN, J.

Associate Justice of the Court of Appeal, Sixth Appellate District, assigned

by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

20

DISSENTING OPINION BY KENNARD, J.

Encouraging another person “to become a prostitute” is a felony. (Pen.

Code, § 266i, subd. (a)(2); all further statutory references are to the Penal Code.)

Falling within that statutory language, the majority holds, is “encouragement of

someone who is already an active prostitute” to become a prostitute. (Maj. opn.,

ante, at p. 18.) I disagree. I cannot fathom how one can “become” what one

already is. And a defendant who, as here, solicits an undercover police officer in

the mistaken belief that the officer already is a prostitute lacks the specific intent

of encouraging another person “to become” a prostitute.

I

In June 2007, Los Angeles Police Officer Erika Cruz, working undercover,

posed as a prostitute on Sepulveda Boulevard in Van Nuys. Defendant Jomo

Zambia drove past her, made a U-turn, stopped his truck across the street from her,

and told her to get into his truck. When she asked him why, defendant said he was

a pimp, adding he would take care of her by providing her with food and clothing.

Defendant was then arrested.

Defendant was convicted of pandering. (§ 266i, subd. (a)(2).) The Court

of Appeal upheld the conviction, as does the majority today.

II

The law prohibits encouraging another “to become a prostitute.” (§ 266i,

subd. (a)(2).) The language is plain and unambiguous. The word “become”

1

means “[t]o pass from one state to another; to enter into some state or condition by

a change from another state, or by assuming or receiving new properties or

qualities, additional matter, or a new character.” (Webster‟s 2d New Internat.

Dict. (1941) p. 242, italics added; see also Webster‟s 9th New Collegiate Dict.

(1988) p. 139.) Or, as defined in the leading law dictionary, the word “become”

denotes a change from one condition to another. (Black‟s Law Dictionary (4th

rev. ed. 1968) p. 195.) For example, a person who already is a police officer or a

physician cannot be encouraged “to become” a police officer or a physician,

because in either situation the person is not acquiring a new status. Similarly, one

who already is a prostitute cannot be encouraged “to become” a prostitute.

(§ 266i, subd. (a)(2).)

In holding to the contrary, the majority goes beyond the pandering statute‟s

plain language. Nor do prior appellate decisions relied on by the majority support

its holding.

III

The majority notes that, with a single exception (People v. Wagner (2009)

170 Cal.App.4th 499 (Wagner)), previous Court of Appeal decisions have held

that a person who is already a prostitute can be encouraged “to become a

prostitute” (§ 266i, subd. (a)(2)). But, as Wagner has pointed out, those cases lack

a sound legal basis for their holdings. The majority rejects that criticism.

The first of the decisions relied on by the majority is People v. Bradshaw

(1973) 31 Cal.App.3d 421 (Bradshaw). That decision candidly acknowledged that

People v. Frey (1964) 228 Cal.App.2d 33 (Frey), on which Bradshaw based its

holding, did not actually address the issue of what “to become” means in the

context of the pandering statute (Bradshaw, at p. 426). As Justice Bedsworth, the

author of Wagner, succinctly put it: Bradshaw “was groping for a solution

2

without any precedential illumination.” (Wagner, supra, 170 Cal.App.4th at

p. 507.)

Nevertheless, the Bradshaw holding that the pandering statute can be

violated by encouraging one who is already a prostitute to become a prostitute was

then followed in People v. Hashimoto (1976) 54 Cal.App.3d 862, 866 and People

v. Patton (1976) 63 Cal.App.3d 211, 216-218. Neither determined whether the

Bradshaw holding went beyond the scope of the statutory language (as in my view

it did). Instead, both Hashimoto and Patton looked to the social evil of pandering

as justification for their holdings. (Hashimoto, supra, 54 Cal.App.3d at p. 866;

Patton, supra, 63 Cal.App.3d at p. 218.) Today, the majority, citing Hashimoto

and Patton, does the same. (Maj. opn., ante, at pp. 6-8.) To hold otherwise, the

majority asserts, would insulate predatory behavior from punishment. (Id. at p. 8.)

It may well be that encouraging a prostitute to work for a pimp is

“predatory behavior” that warrants social sanction. But, as I pointed out earlier at

pages 1-2, the majority‟s holding goes beyond the Legislature‟s plain language in

the pandering statute. By reading into the statute words that are not there and by

ascribing to the statutory phrase “to become a prostitute” a meaning that the words

do not support, the majority has improperly expanded the statute‟s prohibited

conduct. Decreeing what conduct is punishable is exclusively the domain of the

Legislature. (People v. Farley (2009) 46 Cal.4th 1053, 1119.)

“Although the Penal Code commands us to construe its provisions

„according to the fair import of their terms, with a view to effect its objects and to

promote justice‟ (Pen. Code, § 4), it is clear the courts cannot go so far as to create

an offense by enlarging a statute, by inserting or deleting words, or by giving the

terms used false or unusual meanings. [Citation.] Penal statutes will not be made

to reach beyond their plain intent; they include only those offenses coming clearly

3

within the import of their language. [Citation.]” (Keeler v. Superior Court (1970)

2 Cal.3d 619, 632.)

Those well-established principles of statutory construction have been aptly

restated: “When the government requires its citizens to do something under threat

of penal consequence, its pronouncement must be clear. A citizen is not obligated

to guess what conduct is required or suffer a criminal penalty if he divines

wrongly. He is required to do what the law says, but no more. . . . If the

Legislature wants to clarify its requirement, it is certainly free to do so. We are

not empowered to criminalize conduct by judicial ukase, or to punish that which

the Legislature has not brought within its penal reach. To attempt to do so is a

violation of the separation of powers provision of the California Constitution.”

(People v. Kroncke (1999) 70 Cal.App.4th 1535, 1558-1559 (conc. & dis. opn. of

Corrigan, J.).)

The majority considers it significant that since Bradshaw, supra, 31

Cal.App.3d 421 was decided, the Legislature has amended the pandering statute

six times, without abrogating the Bradshaw holding. This inaction by the

Legislature, the majority asserts, indicates legislative acquiescence in this holding.

(Maj. opn., ante, at p. 10.) But, as noted recently, this court is reluctant “ „to draw

conclusions concerning legislative intent from legislative silence or inaction.‟ ”

(People v. Farley, supra, 46 Cal.4th at p. 1120.) A court‟s decision that, like

Bradshaw, is not grounded on sound legal principles (see p. 2, ante) cannot

acquire legal soundness simply through the Legislature‟s lack of action to abrogate

the decision.

The majority tries to justify its holding by relying on a rule of statutory

construction that words of a statute are to be construed in context. The statutory

provision at issue prohibits encouraging “another person to become a prostitute.”

4

The majority notes that the statute‟s other subdivisions also use the term “another

person.” The majority states:

“Considering subdivision (a)(2) in the context of the other provisions of the

statute reveals that the intent and purpose behind section 266i, subdivision (a)(2) is

to prohibit a person from encouraging a prostitute to work under his aegis or that

of someone else, regardless whether the target being solicited is already a working

prostitute.

“Subdivision (a) contains six subparts. As noted, subdivision (a)(2),

proscribes conduct that „[b]y promises, threats, violence, or by any device or

scheme, causes, induces, persuades, or encourages another person to become a

prostitute.‟ (§ 266i, subd. (a)(2).)

“Subdivision (a)(1) criminalizes the „[p]rocur[ing of] another person for

the purpose of prostitution.‟ (§ 266i, subd. (a)(1), italics added.) Whether taken

literally or figuratively, there is no reason to conclude the term „another person‟ as

used in subdivision (a)(1) would not encompass both prostitutes and

nonprostitutes, as either can plainly be „procured‟ for the purpose of prostitution.

“Subdivision (a)(3) criminalizes „[p]rocur[ing] for another person a place

as an inmate in a house of prostitution or as an inmate of any place in which

prostitution is encouraged or allowed within this state.‟ (§ 266i, subd. (a)(3),

italics added.) Here again, the term „another person‟ encompasses all persons,

regardless of their current employment pursuits.

“Subdivision (a)(4) criminalizes conduct that „[b]y promises, threats,

violence, or by any device or scheme, causes, induces, persuades, or encourages

an inmate of a house of prostitution, or any other place in which prostitution is

encouraged or allowed, to remain therein as an inmate.‟ (§ 266i, subd. (a)(4),

italics added.) Subdivision (a)(4) does not use the term „another person.‟ But it

5

specifically proscribes targeting those who are already in „a house of prostitution.‟

In short, subdivision (a)(4) applies to active prostitutes.

“Subdivision (a)(5) criminalizes conduct that „[b]y fraud or artifice, or by

duress of person or goods, or by abuse of any position of confidence or authority,

procures another person for the purpose of prostitution, or to enter any place in

which prostitution is encouraged or allowed within this state, or to come into this

state or leave this state for the purpose of prostitution.‟ (§ 266i, subd. (a)(5),

italics added.) Once again, the term „another person,‟ as used in subdivision

(a)(5), applies to any solicited target, active prostitute or otherwise.

“Finally, subdivision (a)(6) authorizes the prosecution of anyone who

„[r]eceives or gives, or agrees to receive or give, any money or thing of value for

procuring, or attempting to procure, another person for the purpose of prostitution,

or to come into this state or leave this state for the purpose of prostitution.‟

(§ 266i, subd. (a)(6), italics added.) The term „another person‟ as used in this

subdivision also applies to any victim, regardless whether that victim is already

acting as a prostitute.” (Maj. opn., ante, at pp. 12-13.)

I disagree with the majority that its construction of section 266i‟s

subdivision (a)(2) finds support in the statute‟s other subdivisions. Reading

subdivision (a)(2) in context with the statute‟s other subdivisions readily shows

that those other subdivisions, which pertain generally to procuring “another person

for the purpose of prostitution,” have no bearing on subdivision (a)(2)‟s language

prohibiting encouragement of “another person to become a prostitute.” (Italics

added.)

The Court of Appeal held that because, unlike the person solicited in

Wagner, supra, 170 Cal.App.4th 499, here the person solicited by defendant

(Officer Cruz, working undercover) was not a prostitute, it need not assess the

6

merits of the holding in Wagner that section 266i‟s subdivision (a)(2) is

inapplicable when the person solicited is already a prostitute. In affirming

defendant‟s conviction, however, the Court of Appeal overlooked the requisite

intent for violating the statute. As explained below, defendant lacked that intent.

IV

Defendant mistakenly thought that Officer Cruz, working undercover, was

a prostitute. A mistake of fact that disproves the required intent for a crime is a

defense to criminal liability. (§ 26, class Three; In re Jennings (2004) 34 Cal.4th

254, 277.) As the majority acknowledges, pandering is a specific intent crime.

(Maj. opn., ante, at p. 16.) Accordingly, a violation of the pandering statute

(§ 266i, subd. (a)(2)) requires a defendant to have the “ „specific intent to

influence a person to become a prostitute‟ ” (maj. opn., ante, at p. 16, quoting

People v. Mathis (1985) 173 Cal.App.3d 1251, 1256). Under the majority‟s view

that the statutorily prohibited conduct of encouraging another “to become a

prostitute” also applies to encouraging a person who is already a prostitute “to

become” a prostitute, the defendant‟s mistaken belief that Officer Cruz was in fact

a prostitute has no bearing on the issue of specific intent. In my view, however, a

defendant who, as here, solicits an undercover police officer in the mistaken belief

that the officer is a prostitute lacks the specific intent to violate section 266i,

subdivision (a)(2), which prohibits encouraging another person “to become a

prostitute.” Because the undisputed evidence shows that defendant must have

mistakenly believed that Officer Cruz was a prostitute, defendant lacked the

specific intent to support the conviction under section 266i, subdivision (a)(2). By

nonetheless affirming his conviction, the Court of Appeal erred.

7

Unlike the majority, I would reverse the judgment of the Court of Appeal,

which affirmed the trial court‟s judgment of conviction.

KENNARD, J.

8

DISSENTING OPINION BY WERDEGAR, J.

I respectfully dissent. The unambiguous language of Penal Code section

266i, subdivision (a)(2) precludes the application of that particular subdivision to

those, like the undercover police officer here, whom the defendant believes

already to be a prostitute. One simply cannot “become” what one already is, and

if, as the majority holds, the statute requires the specific intent “to persuade or

otherwise influence the target „to become a prostitute‟ ” (maj. opn., ante, at pp. 16-

17), defendant cannot be convicted under this subdivision for attempting to recruit

into his service a woman the evidence showed he believed already to be engaged

in the business of prostitution.

This is not to say the majority is necessarily wrong about the legislative

intent behind the statute. As the majority observes (maj. opn., ante, at pp. 12-13),

the antipandering provisions of Penal Code section 266i, subdivision (a) cover a

broad range of conduct, including much that ordinarily would involve persons

already working as prostitutes. (See id., subd. (a)(1) [procuring a person for

prostitution], (4) [persuading a person to remain an inmate of a house of

prostitution], (5) [procuring a person for prostitution or inducing a person to travel

for that purpose, by fraud or duress], (6) [giving or taking payment for procuring].)

Reading the statute as a whole, the legislative concern clearly extends to the

1

promotion of the prostitution business generally and is not limited to schemes that

induce new people to join that business.

In subdivision (a)(2) of Penal Code section 266i, however, the Legislature

used clear and unambiguous language that does not extend as far as its evident

intent in the pandering statute as a whole, but rather is restricted to those who are

not, and are not believed by the defendant to be, already regularly engaged in

prostitution. “But when, as here, the statutory language is clear and unambiguous,

to [construe the language according to an intent it does not express] is to assert, in

effect, that the language can be corrected on the ground it resulted from a drafting

error. Courts should use this power to rewrite statutes „with great restraint,‟ only

where „the error is clear and correction will best carry out the intent of the

Legislature.‟ (Bonner v. County of San Diego (2006) 139 Cal.App.4th 1336, 1346,

fn. 9 [44 Cal.Rptr.3d 116].) In the present case, I cannot be sure the language of

[Penal Code section 266i, subdivision (a)(2)] resulted from a drafting error. While

the language is [arguably] contrary to the overall purposes of the [pandering

statute], its inclusion may have been the product of conceptual confusion or failure

to fully consider the problem rather than an error in the drafting process itself.”

(Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 905 (conc.

opn. of Werdegar, J.).) In construing criminal statutes, especially, we should be

cautious about crossing the line between interpretation and revision. Whether to

broaden criminal prohibitions beyond their existing statutory limits “is a

legislative call, not a judicial one.” (People v. Wagner (2009) 170 Cal.App.4th

499, 510.)

2

I agree with the unanimous court in People v. Wagner, supra, 170

Cal.App.4th 499, that the unambiguous language of Penal Code section 266i,

subdivision (a)(2) restricts its application to targets who are not already working as

prostitutes. I would leave it to the Legislature to correct what may well have been

an unintentional limitation on the scope of a criminal prohibition.

WERDEGAR, J.

3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Zambia

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 173 Cal.App.4th 1221

Rehearing Granted

__________________________________________________________________________________

Opinion No. S173490

Date Filed: June 2, 2011

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Dennis E. Mulcahy, Temporary Judge*

__________________________________________________________________________________

Counsel:

Vanessa Place, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant

Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., Scott A.

Taryle, Lawrence M. Daniels and Rama R. Maline, Deputy Attorneys General, for Plaintiff and

Respondent.

*Pursuant to California Constitution, article VI, section 21.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Vanessa Place

Post Office Box 351951

Los Angeles, CA 90035

(323) 934-5898

Rama R. Maline

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles,CA 90013

(213) 897-2287