Solano County Super. Ct. No. FCR 264620 Trial Court: Solano County Superior Court Trial Judge: Hon. Harry S. Kinnicutt
The opinion of the court was delivered by: Jenkins, J.
CERTIFIED FOR PUBLICATION
Following a jury trial, defendant Sean Ali Grant was convicted of pimping (Pen. Code,*fn1 § 266h, subd. (a) [hereinafter § 266h(a)], assault with a deadly weapon (§ 245, subd. (a)(1)), corporal injury to a cohabitant (§ 273.5, subd. (a)), and false imprisonment by violence (§ 236). He was sentenced to an aggregate term of five years in state prison.
Grant challenges only his conviction for pimping, which was based on an allegation that he "did unlawfully and knowing [a person] to be a prostitute, live and derive support and maintenance in whole or in part from the earnings and proceeds of said person's prostitution." He contends the prohibited conduct for which he was convicted violates his substantive due process right under the Fourteenth Amendment because it criminalizes a person's cohabitation in the household of a known prostitute. We disagree, and accordingly, affirm the conviction for pimping.
FACTUAL AND PROCEDURAL BACKGROUND
Grant was charged with one felony count of pimping in that on or about March 12, 2009, he did "unlawfully," and knowing Burgundi Selvin "to be a prostitute," "live and derive support and maintenance in whole or in part from the earnings and proceeds of [Selvin's] prostitution." At a jury trial held in July 2009, the following evidence was presented relating to the pimping charge.
Grant and Selvin met in 2007 and began an intimate dating relationship as boyfriend and girlfriend. On March 12, 2009, Selvin asked the police to come to the apartment she was then sharing with Grant to assist her in removing some of her possessions. After the police entered the apartment, Grant attempted to stop Selvin from removing her possessions. Grant was angry Selvin had called the police. He opened the bedroom window and jumped from the second-story apartment to the ground. After the police arrested Grant, they took him to the hospital for treatment of his injuries sustained in the jump.
In interviews with the police, Selvin said she and Grant had an altercation during which he physically attacked her. She also said she worked as a prostitute and she and Grant were "living solely off the proceeds of her prostitution." Neither Selvin nor Grant had any other jobs. Grant took photographs of Selvin that appeared in internet ads, he arranged for the internet advertisements of Selvin's prostitution services and he secured an exclusive cell phone number that customers used to contact Selvin. The police confirmed that the telephone number in the internet advertisements rang to Selvin's cell phone, and she identified herself in the photographs in the advertisements. Selvin described her arrangement with Grant: He was present and hiding in a closet in the apartment while Selvin performed acts of prostitution with customers. After the customers left, Grant would take the money that had been left by the customers on a counter in the apartment. Selvin was upset that Grant was keeping some or all of her earnings from prostitution, and the money was not being "fairly distributed." Grant took money that Selvin had received as a tax refund and he spent money on himself. He bought items, such as a laptop, for both of them but then limited her access to those items.
In interviews with the police, Grant said Selvin was mad at him because he was sleeping with another girl. He also said Selvin "was a bona fide ho," she "hos herself out, [and] . . . he's just a photographer." Grant denied that he stayed in the apartment while Selvin performed acts of prostitution, he "actually would leave the apartment while she would do her thing." Grant also said Selvin "was getting all her money," or "she was getting all the money."
At trial, Selvin, testifying pursuant to a subpoena, admitted she did not remember everything she told the police, but what she recalled telling the police was mostly lies. She specifically claimed she had lied to the police about being a working prostitute and being physically assaulted by Grant. When questioned at trial, Selvin claimed she did "reception work," and "worked front desk at hotels." She had been physically assaulted by another girl who was with Grant in the apartment. Grant did not testify at trial.
Section 266h(a) reads: "[A]ny person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping."
Grant argues the prohibition against deriving support from the earnings of a known prostitute in section 266h(a) is unconstitutional because it deprives him of his right of association by prohibiting cohabitation with a known prostitute. According to Grant, the statute essentially prohibits "anyone from receiving any amount of money, for any reason, from a person they know to be a prostitute, regardless of whether the person knows the source of the funds" or has "the purpose to perpetuate the prostitution." He relies on cases decided by the United States Supreme Court, which (a) interpret the Fourteenth Amendment's "guarantee of 'due process of law,' to include a substantive component, which forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest" (Reno v. Flores (1993) 507 U.S. 292, 301-302; Collins v. Harker Heights (1992) 503 U.S. 115, 125; Youngberg v. Romeo (1982) 457 U.S. 307, 320, citing Poe v. Ullman (1961) 367 U.S. 497, 542 [Harlan, J., dissenting]), and (b) concern " 'marriage, procreation, contraception, family relationships, and child rearing and education' " that "identify certain zones of privacy in which certain personal relationships or decisions are protected from government interference." (Roberts v. United States Jaycees (1984) 468 U.S. 609, 631 [O'Connor, J., conc. opn.]; Lawrence v. Texas (2003) 539 U.S. 558, 567, 573-574 (Lawrence) [noncommercial sexual conduct between consenting adults in private home]; Eisenstadt v. Baird (1972) 405 U.S. 438, 440, 453 (Eisenstadt) [contraception]; Meyer v. Nebraska (1923) 262 U.S. 390, 399 (Meyer) [child rearing and education]).
However, unlike the United States Supreme Court's recognition of certain fundamental liberties in Lawrence, supra, 539 U.S. at pp. 575-577; Eisenstadt, supra, 405 U.S. at pp. 440, 453, 458, and Meyer, supra, 262 U.S. at p. 399, with which we have no quarrel, we are here concerned with a prohibition related to commercial sexual conduct. The statute, in pertinent part, only "proscribes living or deriving support in whole or in part (1) from earnings or proceeds of the prostitution of [a person], or (2) from money loaned to [the prostitute], advanced to [the prostitute], or charged against [the prostitute] by any one of three specified persons. . . . It is clear therefore that the section as a whole is designed to discourage [a person] from . . . receiving material gain from the practice of prostitution." (People v. Smith (1955) 44 Cal.2d 77, 79-80.) "Any liberty interest which . . . persons might have in non-commercial and consensual . . . activity conducted between themselves in an atmosphere of privacy . . . would be personal to themselves and certainly would not extend to a third party, ...