California Criminal Jury Instructions (CALCRIM) (2017)

1151. Pandering

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1151.Pandering (Pen. Code, § 266i)
The defendant is charged [in Count ] with pandering [in
violation of Penal Code section 266i].
To prove that the defendant is guilty of pandering, the People must
prove that:
<Alternative 1A—persuaded/procured>
[1. The defendant successfully (persuaded/procured)
<insert name> to become a prostitute(;/.)]
<Alternative 1B—promises/threats/violence used to cause person to
become prostitute>
[1. The defendant used (promises[,]/ threats[,]/ violence[,]/ [or] any
device or scheme) to (cause/persuade/encourage/induce)
<insert name> to become a prostitute[, although the
defendant’s efforts need not have been successful](;/.)]
<Alternative 1C—arranged/procured a position>
[1. The defendant (arranged/procured a position) for
<insert name> to be a prostitute in either a house of prostitution
or any other place where prostitution is encouraged or allowed(;/
.)]
<Alternative 1D—promises/threats/violence used to cause person to
remain>
[1. The defendant used (promises[,]/ threats[,]/ violence[,]/ [or] any
device or scheme) to (cause/persuade/encourage/induce)
<insert name> to remain as a prostitute in a house
of prostitution or any other place where prostitution is
encouraged or allowed(;/.)]
<Alternative 1E—used fraud>
[1. The defendant used fraud, trickery, or duress [or abused a
position of confidence or authority] to (persuade/procure)
<insert name> to (be a prostitute/enter any place
where prostitution is encouraged or allowed/enter or leave
California for the purpose of prostitution)(;/.)]
<Alternative 1F—received money>
[1. The defendant (received/gave/agreed to receive/agreed to give)
money or something of value in exchange for
(persuading/attempting to persuade/procuring/attempting to
procure) <insert name> to (be a prostitute/enter or
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leave California for the purpose of prostitution)(;/.)]
AND
2. The defendant intended to influence <insert name>
to be a prostitute(;/.)
<Give element 3 when defendant charged with pandering a minor.>
[AND
3. <insert name> was (over the age of 16 years old/
under the age of 16) at the time the defendant acted.]
[It does not matter whether <insert name> was (a
prostitute already/ [or] an undercover police officer).]
Aprostitute is a person who engages in sexual intercourse or any lewd
act with another person in exchange for money [or other compensation].
Pandering requires that an intended act of prostitution be with someone
other than the defendant. A lewd 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.
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that would cause a reasonable person to do [or
submit to] something that he or she would not do [or submit to]
otherwise. When deciding whether the act was accomplished by duress,
consider all the circumstances, including the person’s age and (her/his)
relationship to the defendant.]
[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, February 2012, August 2012, February
2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In element 1, give the appropriate alternative A–F depending on the evidence in the
case. (See People v. Montgomery (1941) 47 Cal.App.2d 1, 12, 24, 27–28 [117 P.2d
437] [statutory alternatives are not mutually exclusive], disapproved on other
grounds in People v. Dillon (19830 34 Cal.3d 441, 454 fn. 2 [194 Cal.Rptr. 390,
668 P.2d 697] and Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301 fn. 11
[124 Cal.Rtpr. 204, 540 P.2d 44].)
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The committee included “persuade” and “arrange” as options in element one
because the statutory language, “procure,” may be difficult for jurors to understand.
Give bracketed element 3 if it is alleged that the person procured, or otherwise
caused to act, by the defendant was a minor “over” or “under” the age of 16 years.
(Pen. Code, § 266i(b).)
Give the bracketed paragraph defining duress on request if there is sufficient
evidence that duress was used to procure a person for prostitution. (Pen. Code,
§ 266i(a)(5); see People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d
869, 94 P.3d 1071] [definition of “duress”].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 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, § 266i.
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] [lewd act requires touching between prostitute and
customer].
• Procurement Defined. People v. Montgomery (1941) 47 Cal.App.2d 1, 12
[117 P.2d 437], disapproved on other grounds in People v. Dillon (1983) 34
Cal.3d 441, 454 fn. 2 [194 Cal.Rptr. 390, 668 P.2d 697] and Murgia v.
Municipal Court (1975) 15 Cal.3d 286, 301 fn. 11 [124 Cal.Rtpr. 204, 540 P.2d
44].
• Proof of Actual Prostitution Not Required. People v. Osuna (1967) 251
Cal.App.2d 528, 531–532 [59 Cal.Rptr. 559].
• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221]; People v. Cochran (2002) 103 Cal.App.4th 8, 13–14 [126
Cal.Rptr.2d 416].
• 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].
• Specific Intent Crime. People v. Zambia (2011) 51 Cal.4th 965, 980 [127
Cal.Rptr.3d 662, 254 P.3d 965].
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• Victim May [Appear to] Be a Prostitute Already. People v. Zambia (2011) 51
Cal.4th 965, 981 [127 Cal.Rptr.3d 662, 254 P.3d 965].
• Pandering Requires Services Procured for Person Other Than
Defendant. People v. Dixon (2011) 191 Cal.App.4th 1154, 1159–1160 [119
Cal.Rptr.3d 901].
• Encouraging Person to Become Prostitute Need Not Be Successful. People v.
Zambia (2011) 51 Cal.4th 965, 980 [127 Cal.Rptr.3d 662, 254 P.3d 965].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 85.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.11[3] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Attempted Pandering. Pen. Code, §§ 664, 266i; People v. Charles (1963) 218
Cal.App.2d 812, 819 [32 Cal.Rptr. 653]; People v. Benenato (1946) 77
Cal.App.2d 350, 366–367 [175 P.2d 296], disapproved on other grounds in In re
Wright (1967) 65 Cal.2d 650, 654–655, fn. 3 [56 Cal.Rptr. 110, 422 P.2d 998].
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
See Related Issues section to CALCRIM No. 1150, Pimping.
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