1154. Prostitution: Soliciting Another
The defendant is charged [in Count ______] with soliciting another person to engage in an act of prostitution.
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;
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.>
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.
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 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.
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].
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 (Matthew Bender).
See the Related Issues section of CALCRIM No. 441, Solicitation: Elements.
(New January 2006)