1155. Prostitution: Agreeing to Engage in Act
The defendant is charged [in Count ______] with agreeing 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 agreed to engage in an act of prostitution with someone else;
2. The defendant intended to engage in an act of prostitution with that person;
3. In addition to agreeing, the defendant did something to further the commission of an act of prostitution.
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 conduct that furthers the commission of the act of prostitution may happen before, after, or at the same time as the agreement to engage in prostitution.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
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].
Specific Intent Required. Pen. Code, § 647(b).
Act in Furtherance Required. Pen. Code, § 647(b).
Act in Furtherance May Precede Agreement. In re Cheri T. (1999) 70 Cal.App.4th 1400, 1407-1408 [83 Cal.Rptr.2d 397]; contra, People v. Davis (1988) 201 Cal.App.3d Supp. 1, 4-5 [247 Cal.Rptr. 359].
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).
(New January 2006)