People v. Zambia

51 Cal.4th 965

254 P.3d 965

127 Cal.Rptr.3d 662

11 Cal. Daily Op. Serv. 6676

2011 Daily Journal D.A.R. 7998

The PEOPLE, Plaintiff and Respondent,

v.Jomo ZAMBIA, Defendant and Appellant.

No. S173490.

Supreme Court of California

June 2, 2011.

OPINION TEXT STARTS HERE Superior Court, Los Angeles County; Dennis E. Mulcahy, Temporary Judge.^*Vanessa Place, Los Angeles, 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.CORRIGAN, J.

[51 Cal.4th 969 , 254 P.3d 967]

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.[fn2] HERE, the target of defendant's 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.

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.

“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, 46 Cal.Rptr.3d 380, 138 P.3d 713.) 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, 280 Cal.Rptr. 368, quoting DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.) “ ‘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, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

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, 107 Cal.Rptr. 256 ( Bradshaw ), has rejected defendant's 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, 107 Cal.Rptr. 256.) 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, 107 Cal.Rptr. 256.) 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, 107 Cal.Rptr. 256.) 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, 865–866, 126 Cal.Rptr. 848 ( Hashimoto ); People v. Patton (1976) 63 Cal.App.3d 211, 218, 133 Cal.Rptr. 533 ( Patton ); People v. DeLoach (1989) 207 Cal.App.3d 323, 333, 254 Cal.Rptr. 831 ( DeLoach ).)

Courts have noted the purpose of the pandering statute in reaching this outcome. In Hashimoto, supra, 54 Cal.App.3d 862, 126 Cal.Rptr. 848, 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, 126 Cal.Rptr. 848.) 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, 126 Cal.Rptr. 848.) 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, 126 Cal.Rptr. 848; 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 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, 133 Cal.Rptr. 533, 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, 133 Cal.Rptr. 533.) 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, 133 Cal.Rptr. 533.) 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, 133 Cal.Rptr. 533.)

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, 133 Cal.Rptr. 533.) 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, 133 Cal.Rptr. 533.)

DeLoach, supra, 207 Cal.App.3d 323, 254 Cal.Rptr. 831, shows how defendant's theory here could be used to subvert the goal of the statute, and insulate predatory behavior from punishment....