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People v. Wagner

January 22, 2009


Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Reversed. (Super. Ct. No. 06CF1512).

The opinion of the court was delivered by: Bedsworth, Acting P. J.



In Keeler v. Superior Court (1970) 2 Cal.3d 619, 632, our Supreme Court reminded us that, "Although the Penal Code commands us to construe its provisions 'according to the fair import of their terms, with a view to effect its objects and and to promote justice' (Pen. Code, § 4), it is clear the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false or unusual meanings. [Citation.] Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language. [Citation.]" In this case we reluctantly conclude that adherence to that adjuration requires reversal of this conviction and divergence with some 30-year-old case law.

Latroy Wagner appeals his conviction for the crime of pandering (Pen. Code, § 266i, subd. (a)(2)).*fn1 He contends the court erred by instructing the jury that pandering includes a situation where the defendant encourages or solicits one who is already a prostitute to "change her business relationship," i.e., to work for him rather than continuing to ply her trade without a pimp. We conclude the contention has merit. The Penal Code*fn2 provision Wagner was charged with violating in this case states that pandering occurs when defendant, "[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become aprostitute." (§ 266i, subd. (a)(2).) And the evidence here is undisputed that the young woman Wagner was accused of "inducing" was already a prostitute -- indeed that she was engaged in soliciting business at the very time he is alleged to have been "encouraging" her to begin working for him.

Under those circumstances, Wagner cannot be guilty of a crime defined as "induc[ing], persuad[ing] or encourage[ing]" the young woman "to become a prostitute." The cases which suggest that the described crime would also include a situation in which the defendant encourages one he knows to already be a prostitute "to change her business relations;" i.e., to begin plying her trade in his employ, simply cannot withstand scrutiny, and thus do not support a "modified" instruction which deviates from the statutory language.

In light of our determination that the challenged jury instruction impermissibly expanded the scope of the pandering crime for which Wagner was convicted, his conviction must be reversed, and we do not reach the other issues raised by Wagner on appeal.*fn3


The facts in this case are fairly simple, and for purposes of this appeal, essentially undisputed. On the night of May 12, 2006, Officer Roger Tolusa of the Santa Ana Police Department was driving an unmarked vehicle on a particular portion of Harbor Boulevard in Santa Ana known to be a "track" for prostitutes. Tolusa was posing as a "john," attempting to procure the services of a prostitute. He spotted a young woman, J.H., as she was walking along the sidewalk and occasionally stopping to peer into cars. Tolusa concluded she was a prostitute, and attempted to maneuver his car into position to make contact with her.

Tolusa observed a blue Toyota approach J.H., and saw her turn her head toward the car, apparently because the driver had said something to her through the open window. However, rather than come nearer to the car, J.H. walked away from it at a fast pace. Based upon J.H.'s attempt to avoid contact with the driver, Tolusa believed that J.H. did not regard him as a potential customer. Tolusa consequently suspected that the occupant of the Toyota might be a pimp, and contacted another officer with a request that he keep tabs on the Toyota.

Tolusa then observed the blue Toyota follow J.H., and heard the driver say something to her, although he could not hear clearly enough to discern what was said.

J.H. glanced toward the Toyota, and then toward Tolusa's car. Then after making eye contact with Tolusa, she got into his car and said "let's get out of here," which they did.

J.H. herself testified that she had already been a prostitute for two years at the time of the events at issue here, and that during those two years she had sometimes worked with a pimp. She claimed that both her father and grandfather were pimps, and that she had known pimps all her life. J.H. stated that on the night of May 12, 2006, she was on Harbor Boulevard working as a prostitute when a man she subsequently identified as Wagner called out to her from a car. She could not initially remember what he said, but stated he "was talking like he was a pimp." J.H. ignored him. He called out to her two more times, including imploring her to "come fuck with this pimp" but she continued to ignore him. J.H. felt certain that Wagner was a pimp, rather than a potential customer, so she wanted nothing to do with him.

Tolusa's partner, Officer David Lima, searched Wagner's blue Toyota after officers had stopped him. Inside the car, Lima found multiple cell phones, and other paraphernalia he viewed as consistent with Wagner's being a pimp. While they were searching the car, one of the cell phones rang. Lima answered it, and a woman said "Daddy, Daddy, where are you?" She then reported, to the person she believed owned the phone, that an unidentified male "doesn't want to take me back to the track. He says he needs to get back on the freeway." Lima identified himself as a police officer, and ...

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