The defendant is charged [in Count ______] with pandering.
To prove that the defendant is guilty of pandering, the People must prove that:
[1. The defendant (persuaded/procured) <insert name> to be 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(;/.)]
<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 leave California for the purpose of prostitution)(;/.)]
<Give element 2 when instructing on specific intent; see Bench Notes>
[2. The defendant intended to influence <insert name> to be a prostitute(;/.)]
<Give element 3 when defendant charged with pandering a minor>
3. <insert name> was (over the age of 16 years old/under the age of 16) at the time the defendant acted.]
A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money [or other compensation]. 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.]
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 (19750 15 Cal.3d 286, 301 fn. 11 [124 Cal.Rtpr. 204, 540 P.2d 44].)
There is a conflict in the case law about the intent required to prove pandering. (See People v. Mathis (1985) 173 Cal.App.3d 1251, 1256 [219 Cal.Rptr. 693] [pandering under former § 266i(b) (now § 266i(a)(2)) requires a specific intent to influence a person to become a prostitute]; but see People v. Montgomery, supra, 47 Cal.App.2d at p. 16 [pandering does not necessarily involve specific intent].) The trial court must decide whether to give bracketed element 2 on specific intent.
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, 1001-1002 [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].)
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].)
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 [113 Cal.Rptr. 195] [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, 1001-1002 [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].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 70-78.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.11 (Matthew Bender).
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.)
See Related Issues section to CALCRIM No. 1150, Pimping.
(New January 2006)