California Criminal Jury Instructions (CALCRIM) (2017)

1154. Prostitution: Soliciting Another

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1154.Prostitution: Soliciting Another (Pen. Code, § 647(b))
The defendant is charged [in Count ] with soliciting another
person to engage in an act of prostitution [in violation of Penal Code
section 647(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant requested [or <insert other synonyms
for “solicit,” as appropriate>] that another person engage in an
act of prostitution;
[AND]
2. The defendant intended to engage in an act of prostitution with
the other person(;/.)
<Give element 3 when instructing that person solicited must receive
message; see Bench Notes.>
[AND
3. The other person received the communication containing the
request.]
A person engages in an act of prostitution if he or she has sexual
intercourse or does a lewd act with someone else in exchange for money
[or other compensation]. A lewd act means touching 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, when a prostitute and a customer
engage in sexual intercourse or lewd acts, both of them are engaged in
an act of prostitution.
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison
containing a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The
letter was intercepted by prison authorities and, thus, never received by the
intended person. (Ibid.) If there is an issue over whether the intended person
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actually received the communication, give bracketed element 3.
If the defendant is charged with one or more prior convictions, give CALCRIM
No. 3100, Prior Conviction: Nonbifurcated Trial, unless the defendant has
stipulated to the conviction. If the court has granted a bifurcated trial on the prior
conviction, use CALCRIM No. 3101, Prior Conviction: Bifurcated Trial.
AUTHORITY
• Elements. Pen. Code, § 647(b).
Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103
Cal.App.3d 525, 534–535 [163 Cal.Rptr. 99]; 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].
• Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
• Solicitation Requires Specific Intent. People v. Norris (1978) 88 Cal.App.3d
Supp. 32, 38 [152 Cal.Rptr. 134]; People v. Love (1980) 111 Cal.App.3d Supp.
1, 13 [168 Cal.Rptr. 591]; People v. Dell (1991) 232 Cal.App.3d 248, 264 [283
Cal.Rptr. 361].
• Solicitation Defined. People v. Superior Court (1977) 19 Cal.3d 338,
345–346 [138 Cal.Rptr. 66, 562 P.2d 1315].
• Person Solicited Must Receive Communication. People v. Saephanh (2000)
80 Cal.App.4th 451, 458–459 [94 Cal.Rptr.2d 910].
• Solicitation Applies to Either Prostitute or Customer. Leffel v. Municipal
Court (1976) 54 Cal.App.3d 569, 575 [126 Cal.Rptr. 773].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 61–63.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.11[1] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 441, Solicitation: Elements.
CALCRIM No. 1154 SEX OFFENSES
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