APPEAL from a judgment of the Superior Court of Yolo County, Warriner, Judge. (Super. Ct. No. 0858)
The opinion of the court was delivered by: Scotland, J.*fn2
CERTIFIED FOR PUBLICATION
A jury convicted Todd Robert Dixon of pandering. (Pen. Code, § 266i, subd. (a)(2); further section references are to this code). As was charged here, a person who "[b]y promises, threats, violence, or by any device or scheme causes, induces, persuades or encourages another person to become a prostitute" is guilty of pandering. (§ 266i, subd. (a)(2).)
Defendant's conviction was based on a text message he sent to 17-year-old L.N. that read, "'U with me, 1 night, $200 or more.'" On appeal, defendant contends there was insufficient evidence to support his conviction because "a person who seeks sex for himself, and uses the money as an inducement, is not a panderer." We agree.
As California's Supreme Court has explained over one hundred years ago in a similar context, a "pander[er]" is one "'who procures the gratification of the passion of lewdness for another.'" (People v. Roderigas (1874) 49 Cal. 9, 11 (hereafter Roderigas), italics added.) Since there was no evidence of that in this case, we shall reverse defendant's conviction.
In light of our conclusion, we need not address defendant's other claims of error.
Defendant was a family friend of L.N. In December 2007, when defendant was 39 or 40 years old, L.N. received a call from him on her cell phone. L.N. was 17 years old. Defendant asked if L.N. was alone because he wanted to discuss something private and personal. He then asked what she was doing for New Year's Eve. L.N. replied that she was baby-sitting her younger brother. Defendant asked whether she wanted to make a quick, easy $200. She responded, "[i]t depends," and asked if he wanted her to baby-sit his children. Defendant said that was possible but then started joking about the $200. Defendant ended the call by saying he would call back when it was "legit."
Fifteen minutes later, L.N. received a text message from defendant that read, "'U with me, 1 night, $200 or more.'" One and a half to two hours later, L.N. received another text message that read, "[W]hat do you say?" L.N. concluded that defendant was not talking about baby-sitting and instead was wanting to be alone with her for "sexual intercourse or something like that."
L.N. went home and showed the text messages to her parents. The next day, L.N. and her stepfather went to the police department. Using L.N.'s cell phone, a detective sent and received the following text messages:
"[Detective]: Thinkin bout wat u ...