PEOPLE v. ZAMBIA No. S173490.
51 Cal.4th 965 (2011)
THE PEOPLE, Plaintiff and Respondent, v. JOMO ZAMBIA, Defendant and Appellant.
Supreme Court of California.
June 2, 2011.
Vanessa Place , under appointment by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr. , and Kamala D. 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.
Defendant Jomo Zambia was convicted of pandering in violation of Penal Code section 266i, subdivision (a)(2),
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 so, Cruz called Officer Paschal, her "security officer" to report that she was possibly "working a pimp."
Standing by 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.
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 facilitate contact.
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.
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.
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 [117 P.2d 437], disapproved on other grounds in Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11 [124 Cal.Rptr. 204, 540 P.2d 44].) This analysis
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 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 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
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 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.
People v. Wagner (2009) 170 Cal.App.4th 499 [87 Cal.Rptr.3d 881], 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.)
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).)
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 Cal.App.3d at p. 218.) "[T]he relevant social policy question is the
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, pp. 999-1000.) 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.)
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 (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
The Court of Appeal's judgment is affirmed.
Cantil-Sakauye, C. J., Baxter, J., Chin, J., and Bamattre-Manoukian, 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. 981.) 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.
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.
The law prohibits encouraging another "to become a prostitute." (§ 266i, subd. (a)(2).) The language is plain and unambiguous. The word "become" 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,
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.
The majority notes that, with a single exception (People v. Wagner (2009) 170 Cal.App.4th 499 [87 Cal.Rptr.3d 881] (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 [107 Cal.Rptr. 256] (Bradshaw). That decision candidly acknowledged that People v. Frey (1964) 228 Cal.App.2d 33 [39 Cal.Rptr. 49], 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 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 [126 Cal.Rptr. 848] and People v. Patton (1976) 63 Cal.App.3d 211, 216-218 [133 Cal.Rptr. 533]. 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. 973-974.) To hold otherwise, the majority asserts, would insulate predatory behavior from punishment. (Id. at p. 974.)
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
"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 within the import of their language. [Citation.]" (Keeler v. Superior Court (1970) 2 Cal.3d 619, 632 [87 Cal.Rptr. 481, 470 P.2d 617].)
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 [83 Cal.Rptr.2d 493] (conc. & dis. opn. of Corrigan, Acting P.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 pp. 975-976.) 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. 983, 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
"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 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
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 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.
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 [17 Cal.Rptr.3d 645, 95 P.3d 906].) As the majority acknowledges, pandering is a specific intent crime. (Maj. opn., ante, at p. 980.) 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. 980, quoting People v. Mathis (1985) 173 Cal.App.3d 1251, 1256 [219 Cal.Rptr. 693]). 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, 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
Unlike the majority, I would reverse the judgment of the Court of Appeal, which affirmed the trial court's judgment of conviction.
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 p. 980), 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. 977-978), 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 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
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.
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