People v. Bell

Opinion

GATES, J.

Defendant Kerry V. Bell appeals from the judgment entered following a nonjury trial that resulted in his conviction of solicitation to commit a sexual assault (count I; Pen. Code, § 653f, subd. (c)) and pandering. (Count II; Pen. Code, § 266i, subd. (f).) Probation was denied and he was sentenced to state prison on count II for the midterm of 6 years. The sentence on count I was stayed pending completion of the sentence on count II and then permanently. He contends: [j[] “I. Appellant’s conduct did not constitute a violation of Penal Code section 653(f)(c) since appellant did not solicit anyone to commit a violation of Penal Code section 288. [j[] II. Appellant’s conduct did not constitute a violation of Penal Code section 266(i)(f) since appellant did not agree to give money for the purpose of prostitution, [j]] III. Appellant’s sentence constituted cruel and unusual punishment, [fl] IV. The court erred in sentencing appellant to the six year midterm.”

Viewed in the light most favorable to the judgment as required by the usual rule governing appellate review, the evidence establishes that in mid-June 1985 appellant offered a prostitute $200 to locate a young girl of about five, “preferably [one] that . . . had been fucked before,” for a “date.”

This woman promptly reported the incident to the police. After she had spoken to Dale Barraclough, an officer assigned to the Sexually Exploited Child Unit of the Los Angeles Police Department, she advised appellant she “was trying to set it up” and referred him to Barraclough.

On June 26, 1985, appellant contacted the officer, who agreed to meet him two days later at a restaurant with photographic “samples” of available children. The meeting took place as scheduled and in a conversation, which, unknown to appellant, was recorded, appellant reiterated his desire to have the officer procure a girl six to nine years of age, who had not “been around a male a hundred times,” to engage in sexual intercourse and mutual oral copulation.

The officer advised appellant that for a fee of $300, he would bring the child directly to appellant at a local motel. He further explained that appel

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