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The People v. Jomo Zambia

June 2, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOMO ZAMBIA, DEFENDANT AND APPELLANT.



Los Angeles County Super. Ct. No.LA055997

The opinion of the court was delivered by: Corrigan, J.

Ct.App. 2/5 B207812

Defendant Jomo Zambia was convicted of pandering in violation of Penal Code section 266i, subdivision (a)(2),*fn1 which defines pandering as encouraging "another person to become" a prostitute.*fn2 Here, the target of defendant's encouragement was an undercover police officer. He contends that section 266i, subdivision (a)(2) does not apply when the target is already a prostitute or an undercover police officer acting as one. The trial and appellate court rejected this argument. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 8, 2007, Officer Erika Cruz was working undercover as a street prostitute in Los Angeles. Defendant drove past her, looked in her direction, made a U-turn, and stopped about 15 feet across the street from her. Defendant lowered his window and told Cruz to get into his truck. When Cruz asked why, defendant said he was a pimp. The officer told him to back up so they could talk. As he did so, Cruz called Officer Paschal, her "security officer" to report that she was possibly "working a pimp."

Standing by the defendant's open passenger-side window, Officer Cruz saw cell phones on the truck's center console. Defendant again told her to get in the truck, repeating that he was a pimp. Cruz asked what defendant meant. He said that he would "take care of [her]" and asked how much money she had in her possession. Hearing that she had $400, defendant said if she gave the money to him, he would provide her with housing and clothing.

Officer Cruz hesitated, telling defendant she was not comfortable. Defendant told her he was a legitimate businessman, showed her a business card, and said he would not "strong-arm" her, which Cruz understood to mean to take her money by force. Cruz testified that defendant used an aggressive tone of voice and demeanor. She characterized him as acting like a "gorilla pimp," or one who uses "verbal threats and violence to get their way and to scare prostitutes into working for them." Cruz asked defendant if she could continue to work the same neighborhood. Defendant told her she could and that he would "just take care of [her]."

At this point, Officer Cruz alerted her backup unit. Defendant was arrested and charged with one count of pandering. (§ 266i, subd. (a)(2).)

In addition to Officer Cruz's testimony summarized above, Officer Paschal testified that pimps commonly provide condoms to their prostitutes, and use multiple cell phones to contact them. When she arrested defendant, Paschal found cell phones, condoms, and a business card on the truck's console. Paschal testified that pimps often give their prostitutes a business card with a phone number to facilitate contact.*fn3 Paschal also explained that pimps often have prostitutes work on the street to solicit sex acts for money. The prostitutes turn their money over to the pimp, who provides food, clothing, and other services.

Defendant did not testify. His mother testified that he lived at her home and worked in her family-owned janitorial business. Defendant would usually work between 6:00 p.m. and 12:30 a.m. He carried one working mobile phone, but also had a broken one in his car, along with a third that he had borrowed from a friend. She explained that defendant was clumsy and often broke his phones. She recognized two of the three phones found in defendant's vehicle as well as defendant's business card from the family business.

Defendant's fianceee testified that his work hours varied, but that he would often return to his jobsite to pick up equipment in the early morning. She recognized the three cell phones found in defendant's truck, and had no reason to believe defendant was a pimp.

Defendant was convicted by jury and sentenced to four years in prison. The Court of Appeal affirmed.

DISCUSSION

At issue here is the proper construction of section 266i, subdivision (a)(2), which provides in pertinent part that any 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.

"In construing any statute, we first look to its language. [Citation.] 'Words used in a statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature . . . .' [Citation.] 'If the language permits more than one reasonable interpretation, however, the court looks "to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part." [Citation.]' [Citation.]" (S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 379.) A statute " 'must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.' " (City of Poway v. City of San Diego (1991) 229 Cal.App.3d 847, 858, quoting DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18.) " 'The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.' " (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 659.)

Defendant argues that section 266i, subdivision (a)(2)'s phrase "to become a prostitute" does not include encouraging a person who is already a prostitute, or is posing as one. The People argue that the better view is that "to become a prostitute" means to "engage in any future acts of prostitution," regardless of the victim's status at the time of a defendant's encouragement.

With a single exception, an unbroken line of cases, beginning with People v. Bradshaw (1973) 31 Cal.App.3d 421 (Bradshaw), has rejected defendant's argument. In Bradshaw, the defendant tried to persuade an undercover police officer to work in a house of prostitution under his supervision. The defendant was charged under section 266i with "procuring, causing, inducing, persuading and encouraging" the victim to become a prostitute.*fn4 (Bradshaw, at p. 423.) At trial, the prosecution contended that while the defendant did not successfully cause the officer "to become a prostitute," he encouraged her to do so and thus violated former subdivision (b) (now subd. (a)(2)) of section 266i. (Bradshaw, at p. 424.) The court held that former subdivision (b) includes "cases where a defendant has solicited one whom he believes to be a former prostitute to re-enter the profession and a defendant who solicits one whom he believes presently to be a prostitute to change her business relations." (Bradshaw, at p. 426.) Accordingly, Bradshaw stands for the proposition that a defendant can be convicted of pandering even if the target is already a prostitute, or a person posing as one, if the defendant encourages the target to change "business relations." (Ibid.)*fn5

Our courts have repeatedly followed Bradshaw and have concluded that the phrase "to become a prostitute" includes both recruiting someone to enter the prostitution trade for the first time and encouraging an existing prostitute, or an undercover officer, to work for him or someone else under some type of new business relationship. (See People v. Hashimoto (1976) 54 Cal.App.3d 862, 865-866 (Hashimoto); People v. Patton (1976) 63 Cal.App.3d 211, 218 (Patton); People v. DeLoach (1989) 207 Cal.App.3d 323, 333 (DeLoach).)

Courts have noted the purpose of the pandering statute in reaching this outcome. In Hashimoto, supra, 54 Cal.App.3d 862, the defendant ran a travel agency catering to foreign tourists. An undercover officer spoke with the defendant saying she had "been informed that he was hiring girls to work for him." (Id. at p. 865.) The defendant said he would refer to the officer those clients of his who were seeking the services of a prostitute. Told that the officer charged $75 per client, the defendant negotiated a reduced rate of $50 for his referrals, urging that the volume of customers he supplied would offset the discounted price. (Ibid.) In affirming the defendant's pandering conviction, the court noted, "The purpose of the anti-pandering statute [citation] is to 'cover all the various ramifications of the social evil of pandering and include them all in the definition of the crime, with a view of effectively combating the evil sought to be condemned.' [Citations.]" (Id. at p. 866.) It concluded that the Legislature not only wanted to stop the launching of a new prostitute's career but also to prevent prostitution "by discouraging persons other than the prostitute from augmenting and expanding a prostitute's operation, or increasing the supply of available prostitutes. [Citations.]" (Id. at p. 867; see also People v. Montgomery (1941) 47 Cal.App.2d 1, 24, disapproved on other grounds in Murgia v. Municipal Court (1975) 15 Cal.3d 286, 301, fn. 11.) This analysis recognizes that when a pimp offers protection and support to a prostitute in return for some or all of her income, the offer increases the likelihood that the prostitute will be able to maintain or expand her activities, an outcome squarely at odds with the statutory goal.

In Patton, supra, 63 Cal.App.3d 211, the defendant encouraged a teenage runaway, who had been working as a prostitute, to come work for him. He offered her housing, bail money when needed, and other inducements. Convicted of pandering, the defendant raised the very question involved here, arguing: "[A] woman cannot become a prostitute if she already is one . . . ." (Id. at p. 215.) While he acknowledged that Bradshaw and Hashimoto stood against him, the defendant relied on out-of-state cases and "sound considerations of public policy." (Patton, at p. 217.) He urged solicitation of a "virtuous woman" was more blameworthy than the encouragement of an established prostitute who would "generally have been coarsened by previous acts of prostitution." (Id. at pp. 217-218.)

The Patton court rejected the defendant's claim, noting, "The fallacy involved in this reasoning is the assumption that the Legislature was concerned only with actual, rather than potential, harm." (Patton, supra, 63 Cal.App.3d at p. 218.) Thus, the focus is not on the character of a defendant's target, but on the social harm inherent in the defendant's conduct. The Patton court agreed with Bradshaw and Hashimoto, noting, "A substantial potential for social harm is revealed even by the act of encouraging an established prostitute to alter her business relations. Such conduct indicates a present willingness to actively promote the social evil of prostitution." (Patton, at p. 218.)

DeLoach, supra, 207 Cal.App.3d 323, shows how defendant's theory here could be used to subvert the goal of the statute, and insulate predatory behavior from punishment. Barbara DeLoach had been repeatedly incarcerated for various felonies, including armed robbery. Paroled from her most recent imprisonment, she returned to live with her two daughters, ages 10 and 14, supplementing her welfare income by prostitution. To avoid police suspicion, she often took her older child, S., with her while she plied her trade. One night, a potential customer asked for an interlude with S., rather than with DeLoach. DeLoach urged her daughter to accept the solicitation, but S. refused. A few days later, they encountered the same man and DeLoach threatened to beat S. if she did not go with him. The man engaged in multiple sex acts with S. and gave her $70, which DeLoach demanded when S. was returned by the customer. Several weeks later, DeLoach turned S. over to the same man, who again paid her for a sexual encounter. (Id. at pp. 331-332.) DeLoach was charged with multiple crimes, including two counts of pandering. She was convicted on both counts. On appeal, she conceded guilt of the first offense. Challenging the other count, however, she argued that she could not be convicted of pandering on the second occasion because she had already made S. a prostitute. Thus, because S. was already a prostitute, DeLoach argued she could not be convicted of causing her to become one during the second incident. (Ibid.)

The Court of Appeal correctly rejected DeLoach's argument that, because she had coerced S. to act as a prostitute the first time, she was insulated from punishment for pandering the second time. The court stated, "[DeLoach] did not transform S. into a prostitute for all time the first time she forced her daughter to go with [the customer]. The interpretation of Penal Code section 266i urged by appellant would require us to stigmatize the victim in this case as with a new form of Scarlet Letter. We decline to do so." (DeLoach, supra, 207 Cal.App.3d at p. 334.)

The interpretation urged by defendant could also lead to mischievous and potentially absurd results. (See City of Poway v. City of San Diego, supra, 229 Cal.App.3d at p. 858.) Trial court and appellate inquiry might be required to tease out just who might qualify as an "active prostitute." Would the defense be available only if the pimp's overture was made while his target was actually engaged in soliciting? Would people qualify as active prostitutes only if that was their sole occupation, or would occasional resort to prostitution be sufficient? Would it make a difference if the prostitute also had legitimate employment? Would a hiatus of weeks or months transform an "active prostitute" into a former or inactive one? There is nothing in the legislative history or decades of case law that even remotely suggests an intent to raise these esoteric inquiries.

The language of the pandering statute describes current conduct on the part of the defendant: inducing and encouraging. That current conduct is aimed at producing subsequent conduct by the target: that the target thereafter engage in acts of prostitution following a defendant's inducement or encouragement. To encourage an established prostitute to change her business relationship necessarily implies that a defendant intends a victim "to become a prostitute" in the future regardless of her current status. We also think it safe to say that someone who encourages another to become a prostitute is seldom giving disinterested advice about a possible career path. The phrase "encourages another person to become a prostitute" can readily be understood to encompass the goal that the target "become a prostitute" in the future for the benefit of the encourager or some other pimp. (§ 266i, subd. (a)(2).) This interpretation of the pandering statute is consistent with long-standing case law and the Legislature's intent to combat pandering and prostitution.

It is also significant that section 266i has been amended six times since Bradshaw was decided in 1973, without any attempt by the Legislature to alter the interpretation set out above. "When a statute has been construed by the courts, and the Legislature thereafter reenacts that statute without changing the interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute." (People v. Bouzas (1991) 53 Cal.3d 467, 475.) In Bouzas, the statutes at issue were amended 10 times over 73 years without any attempt to alter the courts' consistent interpretation of them. We concluded that "the Legislature acquiesced in and ratified the judicial interpretation of the . . . [statutes], and intended that the present version . . . receive a like interpretation." (Ibid.) Here, we have a similar pattern of legislative inaction signaling acquiescence, as there exists "both a well-developed body of law interpreting a statutory provision and numerous amendments to a statute without altering the interpreted provision . . . ." (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1156.)

People v. Wagner (2009) 170 Cal.App.4th 499, is the lone exception to the Bradshaw line of cases. There, the defendant was convicted under section 266i, subdivision (a)(2) after he unsuccessfully tried to pressure an active prostitute to come work for him. (Wagner, at p. 502.) He argued that the trial court erred by giving a modified jury instruction specifying that pandering occurs when "the defendant encourages or solicits one who is already a prostitute to 'change her business relationship.' " (Ibid.) The Court of Appeal reversed the defendant's conviction and criticized the established case law set out above as "utterly unconvincing." (Id. at p. 506.) The Wagner court concluded that the settled interpretation in place for decades was wrong because it is impossible to solicit a woman who was "currently" a prostitute to become one. (Id. at pp. 509-511.) It stated, "We feel this statute is clear. The language defining the crime as occurring when a defendant induces or encourages someone else to 'become a prostitute' seems fairly clear in its exclusion of efforts to importune someone currently engaged in that ...


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