California Criminal Jury Instructions (CALCRIM) (2017)

1150. Pimping

Download PDF
(ii) Pimping, Pandering, Prostitution
1150.Pimping (Pen. Code, § 266h)
The defendant is charged [in Count ] with pimping [in violation
of Penal Code section 266h].
To prove that the defendant is guilty of pimping, the People must prove
that:
1. The defendant knew that <insert name> was a
prostitute;
[AND]
<Alternative 2A—money earned by prostitute supported defendant>
[2. The (money/proceeds) that <insert name> earned as
a prostitute supported defendant, in whole or in part(;/.)]
<Alternative 2B—money loaned by house manager supported defendant>
[2. Money that was (loaned to/advanced to/charged against)
<insert name> by a person who (kept/managed/was
a prostitute at) the house or other place where the prostitution
occurred, supported the defendant in whole or in part(;/.)]
<Alternative 2C—defendant asked for payment>
[2. The defendant asked for payment or received payment for
soliciting prostitution customers for <insert
name>(;/.)]
<Give element 3 when defendant charged with pimping a minor.>
[AND
3. <insert name> was a minor (over the age of 16
years/under the age of 16 years) when (he/she) engaged in the
prostitution.]
Aprostitute is a person who engages in sexual intercourse or any lewd
act with another person in exchange for money [or other compensation].
Alewd act means physical contact of the genitals, buttocks, or female
breast of either the prostitute or customer with some part of the other
person’s body for the purpose of sexual arousal or gratification.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised April 2011
892
0184
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In element 2, use the appropriate alternative A–C depending on the evidence in the
case.
Give element 3 if it is alleged that the prostitute was a minor. Punishment is
enhanced if the minor is under the age of 16 years. (Pen. Code, § 266h(b).)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [855 P.2d 391].)
Defenses—Instructional Duty
If necessary for the jury’s understanding of the case, the court must instruct sua
sponte on a defense theory in evidence, for example, that nude modeling does not
constitute an act of prostitution and that an act of procuring a person solely for the
purpose of nude modeling does not violate either the pimping or pandering statute.
(People v. Hill (1980) 103 Cal.App.3d 525, 536–537 [163 Cal.Rptr. 99].)
AUTHORITY
• Elements. Pen. Code, § 266h.
Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103
Cal.App.3d 525, 534–535 [163 Cal.Rptr. 99]; People v. Romo (1962) 200
Cal.App.2d 83, 90–91 [19 Cal.Rptr. 179]; Wooten v. Superior Court (2001) 93
Cal.App.4th 422, 431–433 [113 Cal.Rptr.2d 195] [lewd act requires touching
between prostitute and customer].
• General Intent Crime. People v. McNulty (1988) 202 Cal.App.3d 624,
630–631 [249 Cal.Rptr. 22].
• Proof Person Is a Prostitute. People v. James (1969) 274 Cal.App.2d 608,
613 [79 Cal.Rptr. 182].
• Solicitation Defined. People v. Smith (1955) 44 Cal.2d 77, 78–80 [279 P.2d
33].
• Good Faith Belief That Minor Is 18 No Defense to Pimping and
Pandering. People v. Branch (2010) 184 Cal.App.4th 516, 521–522 [109
Cal.Rptr.3d 412].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 67–69.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.11[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1150
893
0185
COMMENTARY
Solicitation
In deciding there was sufficient evidence of solicitation, the court in People v.
Phillips (1945) 70 Cal.App.2d 449, 453 [160 P.2d 872], quoted the following
definitions:
“[S]olicit” is defined as: “To tempt . . . ; to lure on, esp. into evil, . . . to
bring about . . . ; to seek to induce or elicit . . . .” (Webster’s New
International Dictionary (2d ed.)). “. . . to ask earnestly; to ask for the purpose
of receiving; to endeavor to obtain by asking or pleading; . . . to try to obtain
. . . . While it does imply a serious request, it requires no particular degree of
importunity, entreaty, imploration or supplication.” (58 C.J. 804–805.)
General Intent
The three ways of violating Penal Code section 266h are all general intent crimes,
as held in People v. McNulty (1988) 202 Cal.App.3d 624, 630–631 [249 Cal.Rptr.
22]:
[D]eriving support with knowledge that the other person is a prostitute is all
that is required for violating the section in this manner. No specific intent is
required . . . . Receiving compensation for soliciting with knowledge that the
other person is a prostitute is the only requirement under the first alternative of
violating section 266h by solicitation. Under the second alternative to pimping
by soliciting (soliciting compensation), . . . if the accused has solicited for the
prostitute and has solicited compensation even though he had not intended to
receive compensation, he would nevertheless be guilty of pimping. Pimping in
all its forms is not a specific intent crime.
LESSER INCLUDED OFFENSES
• Attempted Pimping. Pen. Code, §§ 664, 266h; see People v. Osuna (1967) 251
Cal.App.2d 528, 531 [59 Cal.Rptr. 559].
• There is no crime of aiding and abetting prostitution. People v. Gibson (2001)
90 Cal.App.4th 371, 385 [108 Cal.Rptr.2d 809].
RELATED ISSUES
House of Prostitution
One room of a building or other place is sufficient to constitute a house of
prostitution, and one person may keep such a place to which others resort for
purposes of prostitution. (People v. Frey (1964) 228 Cal.App.2d 33, 53 [39
Cal.Rptr. 49]; see Aguilera v. Superior Court (1969) 273 Cal.App.2d 848, 852 [78
Cal.Rptr. 736].)
Receiving Support
A conviction for living or deriving support from a prostitute’s earnings does not
require evidence that the defendant received money directly from the prostitute, or
that the defendant used money received from the prostitution solely to pay his or
CALCRIM No. 1150 SEX OFFENSES
894
0186
her own living expenses. (People v. Navarro (1922) 60 Cal.App. 180, 182 [212 P.
403].)
Unanimity Instruction Not Required
Pimping is a crime “of a continuous ongoing nature and [is] therefore not subject
to the requirement that the jury must agree on the specific act or acts constituting
the offense.” (People v. Dell (1991) 232 Cal.App.3d 248, 265–266 [283 Cal.Rptr.
361]; People v. Lewis (1978) 77 Cal.App.3d 455, 460–462 [143 Cal.Rptr. 587]
[living or deriving support from prostitute’s earnings is an ongoing continuing
offense].) Proof of an ongoing relationship between the defendant and the prostitute
is not required. (People v. Jackson (1980) 114 Cal.App.3d 207, 209–210 [170
Cal.Rptr. 476].)
SEX OFFENSES CALCRIM No. 1150
895
0187