[845]Opinion
KREMER, P. J. A jury convicted Adam Jeffers of two counts of pandering (Pen. Code,1 § 266i, subd. (b)) and two counts of pimping (§ 266b). The court denied probation and committed Jeffers to the California Youth Authority. Jeffers appeals, claiming denial of his right to counsel, prosecutorial misconduct, insufficient evidence for one pandering count and the unconstitutionality of section 1203.065. We affirm the judgment.
I
Pandering and Pimping as to Beth R.
In June 1984 driving near San Francisco with a woman named Cherita, Jeffers picked up hitchhiking 15-year-old Rhode Islander Beth R. and her 15-year-old friend Kelly A. Beth and Kelly were without money or food and needed clothing. Jeffers said he knew a way for them to make $400 a day. Beth thought Jeffers was talking about prostitution.
Jeffers paid for a hotel room for Beth, Kelly and Cherita in San Francisco. Jeffers bought shoes for Beth and Kelly. Beth, Kelly and Cherita showered, dressed and prepared to go out as prostitutes. Before leaving, they discussed prostitution with Jeffers. Jeffers said to charge $50 for intercourse. Jeffers told Cherita to tell Beth and Kelly about prostitution. Jeffers also said if the police picked them up, they should give false names and ages, claim they lost their identification, and stick to their story. The girls went over their story with Jeffers several times. Jeffers told the girls to “Go out there.”
Jeffers drove the girls to a San Francisco location where they were to get “dates.” Within half an hour, the vice squad stopped the girls, interrogated them, told them to go home and released them.
The girls returned to the hotel room and told Jeffers what happened. Jeffers said: “We’ll stay here tonight, but in the morning we’re going to go back to San Diego ... because there’s too much heat up here.” Jeffers told the girls they would work in San Diego.
The next day Jeffers drove Cherita, Beth and Kelly to San Diego. Jeffers paid for food and a motel in San Diego. Jeffers gave the girls condoms and said they were to be used at all times. After Beth dressed in Cherita’s clothes, Jeffers drove the girls to downtown San Diego for prostitution. Jeffers gave the girls two phone numbers, one to reach him if a problem arose or they [846]wanted to be picked up and the other if they were arrested. Downtown the girls looked for “dates.” Beth worked five or six hours that night and performed three acts of prostitution.
Every night for a week and a half, Beth worked for Jeffers as a prostitute. Jeffers told Beth to stay in the motel room during the day. The girls drove to their work locations in Jeffers’s sister’s car provided by Jeffers. Jeffers recommended areas for the girls to work. Jeffers gave Beth a false birth certificate to use in obtaining an identification card from the Department of Motor Vehicles. Jeffers said he would bail out Beth if she were arrested.
Beth talked to Jeffers three or four times each night by phone about how business was going. Jeffers sometimes said the girls were doing very well. When business was poor, Jeffers told the girls to try someplace else.
Upon returning to the motel room each night, Beth left her earnings on a table for Jeffers, keeping none for herself. Cherita and Kelly also put their earnings on the table. Once Beth gave Jeffers her earnings directly. Another time Beth told Jeffers she had lost $300 or $350; Jeffers said, “Don’t ever let it happen again.” Beth engaged in about 40 to 50 acts of prostitution. She gave Jeffers all the money she earned.
Beth felt she would not have become a prostitute without Jeffers’s help in providing a room, clothes, food, money, false identification, phone numbers and promise of bail.
Eventually police arrested Beth. She told police about Jeffers. The police said she would not be charged if she testified against Jeffers.
II
Pandering and Pimping as to Rosemary T.
In early 1984 while working at a donut shop, 19-year-old Rosemary T. met Jeffers. Rosemary thought Jeffers was a pimp because the store was a hangout for pimps and Jeffers “was around there all the time.” Rosemary also knew other girls worked for Jeffers. Rosemary told Jeffers she wanted to work for him. Jeffers said Rosemary could make good money. Rosemary thought Jeffers was referring to working as a prostitute. Rosemary had earlier worked as a prostitute in Los Angeles for two nights.
In June 1984 after not seeing Jeffers for some time, Rosemary phoned him and said she wanted to go. Jeffers picked up Rosemary in his car and dropped [847]her off on Rosecrans to work. Rosemary worked for a few hours but had no “dates.”
The next night Rosemary went by bus to El Cajon Boulevard without Jeffers’s knowledge and engaged in three acts of prostitution, earning $95. Rosemary unsuccessfully tried to reach Jeffers by phone that night. The next day Rosemary gave Jeffers the $95 and told him how she earned the money. Jeffers had earlier bought Rosemary a dress.
Rosemary went out another night but made no money. Rosemary phoned Jeffers and said she could not get any dates and wanted to come home. Jeffers told her to come home. The next night Rosemary went out and engaged in one act of prostitution. She used the money to pay for a room. Jeffers had paid for her room on an earlier night. Rosemary called Jeffers and asked if she could come in; Jeffers said yes.
Rosemary worked one more night, earning $30 for performing sex acts. She called Jeffers. Jeffers told her to stay out longer. She did not comply; instead she got her “stuff” and left. Later that day Jeffers saw Rosemary in a friend’s car. Jeffers told her to pull over. She complied and got out of the car. Jeffers asked Rosemary why she left and where she had been all day. Rosemary told Jeffers she had been babysitting and did not want to work for him anymore. Jeffers was angry, slapped Rosemary’s face and told her to get the money she made the night before and go back downtown. Jeffers said: “Nobody fucks with my pimping.” Rosemary feared Jeffers. She went to Los Angeles.
About two months later Rosemary’s sister received two threatening phone calls, one from a man saying Rosemary had started a job and was going to finish it. Rosemary’s mother also received a call from Jeffers. Rosemary called the police about the threatening phone calls, described what happened and identified a picture of Jeffers as the person to whom she gave the money. The police led Rosemary to believe charges would be filed against her if she did not testify.
While working for Jeffers as a prostitute, Rosemary gave him her earnings or used the money to pay for her room. Jeffers knew the money was from prostitution. Rosemary felt Jeffers in return would bail her out and provide her with protection, food and clothing.
III
On August 6, 1984, the People filed a felony complaint against Jeffers; Jeffers was arraigned in municipal court represented by retained counsel [848]Brian McCarthy. On August 9,1984, at a bail review hearing with McCarthy present, the court appointed the Franklin & Robinson Defense Group to represent Jeffers. On August 10, 1984, Franklin & Robinson was confirmed as appointed counsel; Jeffers was arraigned on an amended complaint. On August 15, 1984, Pat Robinson from Franklin & Robinson represented Jeffers at a bail review hearing.
On August 29, 1984, the preliminary hearing was held with Jeffers represented by Robinson and cocounsel Michael Berg from Franklin & Robinson. Jeffers was bound over to superior court.
On September 11, 1984, the People filed an information charging Jeffers with pandering and pimping as to Beth and pandering, pimping and battery as to Rosemary. On September 12, 1984, represented by Robinson, Jeffers was arraigned in superior court.
On October 25, 1984, Robinson represented Jeffers at the readiness hearing and argued an unsuccessful motion to dismiss under section 995; trial was confirmed for November 13, 1984. Trial trailed until November 21, 1984, when Robinson appeared for Jeffers to seek a continuance. The court continued the trial until January 14, 1985.
On January 14, 1985, when the matter was called for trial, Robinson told the court she was involved as individually appointed counsel in another trial but could arrange to have another attorney from Franklin & Robinson handle Jeffers’s defense. Robinson also said Jeffers wanted to hire his own counsel. The court told Jeffers: “You have a trial date set for today. If you wished to retain counsel, it should have been done weeks ago and certainly not the day of trial. I have a trial court for you.” The court trailed the matter to the next day.
On January 15, 1985, Attorney Max Ruffcom was present from Franklin & Robinson. Ruffcom told the court he was “prepared to take this case out.” Attorney Nicholas De Pento was also present. De Pento told the court Jeffers wanted Robinson to represent him but she was in trial so Jeffers asked De Pento to represent him; De Pento agreed to enter the case only if there were a continuance. The court asked Jeffers why he was dissatisfied with Franklin & Robinson. Jeffers said: “I think I would be better represented by someone who had more time to be interested in the case.” Jeffers also said he would “feel a lot happier” with De Pento. The court denied Jeffers’s motion to substitute counsel as not timely. The matter was sent to a trial court.
On January 16, 1985, Jeffers renewed his motion for continuance to permit De Pento to assume his defense. The People opposed Jeffers’s motion [849]as untimely, unduly delaying and inconvenient to prosecution witnesses. The court denied Jeffers’s motion. The court found “the reasons stated are not sufficient ... [and] the motion is not timely.
IV
At trial Beth testified for the People. The People also introduced into evidence the preliminary hearing testimony of unavailable witness Rosemary. Jeffers did not testify or present any evidence.
The jury found Jeffers guilty of pandering and pimping as to Beth and as to Rosemary. The court dismissed the battery count on the People’s motion after the jury was unable to reach a decision on this charge.
The court denied Jeffers probation. In committing Jeffers to the Youth Authority, the court determined as six years the prison term to which he would have been sentenced, representing a six-year middle term for pandering as to Beth, a concurrent four-year middle term for pandering as to Rosemary and stayed six and four-year terms for pimping. (§ 654.)
V
Jeffers contends the trial court prejudicially violated his rights to due process and counsel of his choice by denying his motion for continuance on the first day of trial. Jeffers asserts he showed good cause for a continuance by promptly and justifiably seeking to substitute retained counsel upon discovering his defense would be assigned to a different and inadequately prepared appointed attorney. We disagree.
“The right to the effective assistance of counsel ‘encompasses the right to retain counsel of one’s own choosing.’ ” (People v. Courts (1985) 37 Cal.3d 784, 789 [210 Cal.Rptr. 193, 693 P.2d 778].) Further, “due process of law comprises a right to appear and defend with retained counsel of one’s own choice.” (People v. Blake (1980) 105 Cal.App.3d 619, 623 [164 Cal.Rptr. 480]; accord People v. Courts, supra, at p. 790.)
The trial court must “ ... ‘make all reasonable efforts to ensure that a defendant financially able to retain an attorney of his own choosing can be represented by that attorney.’ [Citation.] To this end, ‘the state should keep to a necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources____’ [Citation.]” (People v. Courts, supra, 37 Cal.3d at p. 790.) The right to counsel of one’s own choosing “... ‘can constitutionally be forced to yield only when it will result in significant prejudice [850]to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ [Citations.] The right to such counsel ‘must be carefully weighed against other values of substantial importance, such as that seeking to ensure orderly and expeditious judicial administration, with a view toward an accommodation reasonable under the facts of the particular case.’ [Citation.]” (Ibid.)
Generally the trial court has discretion whether to grant a continuance to permit a defendant to be represented by retained counsel. (People v. Courts, supra, 37 Cal.3d at p. 790.) “The right of a defendant to appear and defend with counsel of his own choice is not absolute.” (People v. Rhines (1982) 131 Cal.App.3d 498, 506 [182 Cal.Rptr. 478]; People v. Blake, supra, 105 Cal.App.3d at p. 624 [164 Cal.Rptr. 480].) “A continuance may be denied if the accused is ‘unjustifiably dilatory’ in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at the time of trial.’ [Citation.]” (People v. Courts, supra, 37 Cal.3d at pp. 790-791.) In deciding whether the trial court’s denying a continuance was so arbitrary as to deny due process, this court “looks to the circumstances of each case, ‘ “particularly in the reasons presented to the trial judge at the time the request [was] denied.” ’ [Citations.]” (Id. at p. 791.)
The trial court found Jeffers’s request for continuance was untimely and unsupported by sufficient reasons. Jeffers has the burden to show “an abuse of judicial discretion in the denial of his request for continuance to secure new counsel.” (People v. Rhines, supra, 131 Cal.App.3d at p. 506.) Jeffers has not met his burden.
Nothing in the record suggests Jeffers made a good faith, diligent effort to obtain retained counsel before the scheduled trial date. In August 1984 Franklin & Robinson as a group was appointed counsel for Jeffers. We may infer Jeffers knew his defense might be handled by anyone from Franklin & Robinson, not necessarily Pat Robinson individually. Despite such knowledge Jeffers waited until the first day of trial in January 1985 to attempt to obtain substitution of retained counsel. Jeffers made no showing he was financially unable to retain counsel earlier. On this record the court reasonably found Jeffers’s motion for continuance on the day of trial was untimely.
Where a continuance is requested on the day of trial, the lateness of the request may be a significant factor justifying denial absent compelling circumstances to the contrary. (People v. Courts, supra, 37 Cal.3d at p. 792, fn. 4.) Here Jeffers did not present the trial court with compelling circumstances supporting his late request for continuance. Ruffcom told the court he was “prepared to take this case out.” Jeffers made no contrary [851]showing Ruffcom was unprepared or otherwise unable to provide adequate representation. Further, the fact Jeffers may have felt happier with Robinson or De Pento than with Ruffcom was an inadequate reason for a continuance on the day of trial. Jeffers was on notice five months before trial of the possibility someone from Franklin & Robinson other than Pat Robinson might handle his defense. A “[d]efendant’s right to counsel does not include the right to be represented by a particular deputy public defender.” (People v. Stroble (1951) 36 Cal.2d 615, 629 [226 P.2d 330].) Similarly, Jeffers’s right to appointed counsel did not include the right to be represented by a particular member of the Franklin & Robinson group. (Cf. Drumgo v. Superior Court (1973) 8 Cal.3d 930, 934 [106 Cal.Rptr. 631, 506 P.2d 1007, 66 A.L.R.3d 984].) Although Jeffers’s personal relationship with Pat Robinson was important (Smith v. Superior Court (1968) 68 Cal.2d 547, 561 [68 Cal.Rptr. 1, 440 P.2d 65]), the Sixth Amendment does not guarantee a “ ‘meaningful relationship’ between an accused and his counsel.” (Morris v. Slappy (1983) 461 U.S. 1, 14 [75 L.Ed.2d 610, 621, 103 S.Ct. 1610].) Moreover, during the five months before trial Jeffers had the opportunity to substitute retained counsel if he desired, but he did not do so.
In opposing Jeffers’s motion for continuance, the prosecutor expressed a valid concern about the inconvenience to witness Beth who had to travel from the east coast to testify. The trial court could reasonably find a continuance here would adversely affect the orderly administration of justice. (People v. Courts, supra, 37 Cal.3d at p. 794; People v. Johnson (1970) 5 Cal.App.3d 851, 858-859 [85 Cal.Rptr. 485].)
The trial court acted within its discretion in denying Jeffers’s motion for continuance, given his request’s untimeliness, its lack of legally sufficient reasons and its adverse effect on the orderly administration of justice. (People v. Lau (1986) 177 Cal.App.3d 473, 479 [223 Cal.Rptr. 48]; People v. Johnson, supra, 5 Cal.App.3d at p. 858.)
VI
Jeffers contends the prosecutor’s comments to the jury about his failure to testify constituted prejudicial error under Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229]. We disagree, finding any error to be harmless.
Jeffers’s counsel argued to the jury: “The judge will instruct you as to what the law is in this case. Your duty is to be a judge of the evidence. One of the instructions in the law is that Mr. Jeffers, in deciding whether or not to testify, may rely on the state of the evidence. Mr. Jeffers may rely on the failure of the prosecution to prove their case beyond a reasonable doubt [852]against him. No lack of testimony on the part of Mr. Jeffers will supply a failure of proof to the People. After all, he’s the accused. He doesn’t have to prove that he’s innocent. It’s a constitutional right, and you’ll be instructed, for a defendant, Mr. Jeffers in this case, not to testify if he chooses. You must not draw any inference from the lack of testimony from Mr. Jeffers. You will be instructed that you must never discuss in this matter nor permit the failure of Mr. Jeffers to take the stand to enter into your deliberations in any way. You can’t even talk about it.
“The production of all evidence, you’ll be instructed, is not required. The only evidence that you’ve heard with respect to the charges against Mr. Jeffers is the testimony of Ms. [R.] and the former testimony of Ms. [T.]. That’s the only evidence.”
During rebuttal the prosecutor argued to the jury: “Now, he wants you to believe that Beth was up here and that she lied to you; that because she wanted to be a prostitute, that you shouldn’t believe anything else she said. Let’s look at that statement. She told you that she made that statement because she wanted to look bad to make the defendant look better. The defendant, after her testimony, called her, begged her not to testify, trying to persuade her not to testify. And that’s what she did. But she told you what happened out there the best that she could recall, and she didn’t want to add anything that she couldn’t recall. She couldn’t recall that he addressed to her a price. She didn’t want to testify to that. But it wouldn’t even matter if she did want to become a prostitute, because he continued encouraging her, helping her, assisting her throughout the time that she was out here. And that’s all that’s necessary for pandering. He continued to take her money, knowing it was from acts of prostitution, and that’s all that’s necessary for pimping. It didn’t matter if she wanted to become a prostitute, even though that statement doesn’t make any sense when you look at the rest of her statement, because she didn’t engage in prostitution when she was coming out here. She didn’t have any money. She never, never did it until the defendant brought up the idea, and she had nothing. So whether you believe that statement or not, I don’t think it discredits her complete testimony, and it didn’t change the fact about what the defendant did, which completes the crimes.
“Now, you see the defendant sitting there. He’s been sitting here throughout these proceedings. He’s young, and as an individual, you sit there and you can sympathize with what might happen to him. But that’s not how you can reach your verdict. Your verdict must be reached based only on the facts.
“Now, the defense attorney has stated to you that you come in here with your common senses and not to let them go out the door when you deliberate. [853]But there’s one thing else you can’t do, and that is, you can’t add to the evidence. The defendant has not testified in this case.”
Jeffers immediately objected and sought a mistrial based on the prosecutor’s comments about his refusal to testify. The court observed the prosecutor had not finished her sentence and later denied Jeffers’s motion. The court said: “[B]asically I don’t think it was a comment. I think it was a statement. A statement of fact. Something that generally you stay away from, but it was also brought up in defense’s argument.”
Later the court instructed the jury: “It is a constitutional right of the defendant in a criminal trial that he may not be compelled to testify. You must not draw any inference from the fact that he does not testify. Further, you must not discuss that matter nor permit it to enter, either, into your deliberations in any way.
“In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant’s part will supply a failure of proof by the People so as to support a finding against him on any such essential element.
“A defendant in a criminal action is presumed to be innocent until his guilt is proven, and in case of reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.
“This presumption places upon the state the burden of proving beyond a reasonable doubt____”
Comment on a defendant’s failure to testify violates the Fifth Amendment’s self-incrimination clause by imposing a penalty for exercising a constitutional privilege and making assertion of the privilege costly. (Griffin v. California, supra, 380 U.S. at p. 614 [14 L.Ed.2d at pp. 109-110, 85 S.Ct. 1229].)
Asserting Beth’s credibility was a crucial issue because of inconsistencies between her testimony at the preliminary hearing and her trial testimony as to whether Jeffers encouraged her to become a prostitute or controlled her actions, Jeffers contends the prosecutor’s comments about his not testifying filled an evidentiary gap in the People’s case by implying Beth’s trial testimony was true because Jeffers did not testify to contradict her testimony despite the opportunity to present his side. Jeffers also contends the prosecutor’s comments filled an evidentiary gap in the People’s case by [854]implying if Jeffers did not possess the requisite mens rea and commit the wrongful acts of pimping and pandering he would have so testified. However, the prosecutor’s statement about Jeffers “sitting here throughout the proceedings” was not a comment about Jeffers not testifying but rather an appeal to the jury not to be swayed by Jeffers’s youth. Further, even assuming the prosecutor’s later comment “defendant has not testified” was susceptible to the inferences asserted by Jeffers, any error was harmless. The prosecutor’s truncated comment followed Jeffers’s counsel’s comment to the jury giving the proper law about the import of Jeffers not testifying. Later the court gave the jury proper instructions about the effect of Jeffers not testifying. Moreover, the People’s case was without evidentiary gaps. The evidence against Jeffers was overwhelming. Lengthy detailed testimony by Beth and Rosemary directly incriminated Jeffers. Jeffers presented no defense. On this record any error in the prosecutor’s comments could have had no significant impact on the jury and was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Vargas (1973) 9 Cal.3d 470, 478, 480-481 [108 Cal.Rptr. 15, 509 P.2d 959].)
VII
Jeffers contends his conviction for pandering as to Rosemary is not supported by substantial evidence. A review of the entire record belies Jeffers’s contention.
Section 266i, subdivision (b) defines as guilty of pandering a person who “by promises, threats, violence, or by any device or scheme, causes, induces, persuades or encourages another person to become a prostitute.”
When Rosemary told Jeffers she wanted to work for him, Jeffers said she could make good money.2 Rosemary called Jeffers and said she was ready to go. Jeffers drove Rosemary in his car to a spot on Rosecrans to prostitute herself. Jeffers bought Rosemary a dress. Jeffers paid for a room for Rosemary. While working as a prostitute, Rosemary called Jeffers and he told her to stay out longer. Rosemary gave Jeffers her earnings from prostitution. Rosemary felt Jeffers in return would bail her out and provide her with protection, food and clothing. When Rosemary told Jeffers she did not want to work for him any longer, Jeffers slapped her face, told her to go back downtown and said; “Nobody fucks with my pimping.” Later Rosemary’s sister received a threatening phone call saying Rosemary had started a job and was [855]going to finish it. The jury reasonably found from this substantial evidence Jeffers was guilty of pandering as to Rosemary.
VIII
Section 1203.065, subdivision (a) reads: “Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person convicted of violating subdivision (2) of Section 261, or Section 264.1, or Section 266h, or Section 266i, or Section 266j, or 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm or subdivision (c) of Section 311.4.”
Jeffers contends section 1203.065, subdivision (a)’s absolute prohibition of probation for violating sections 266h and 266i is unconstitutionally cruel and unusual in the abstract and as applied to him. We disagree.
As a preliminary matter, we observe that the subdivision’s probation ban is not the equivalent of a mandatory state prison term as Jeffers asserts. Jeffers received no such commitment nor is he subject to the minimum three-year prison term of which he complains. Rather, he was committed to the California Youth Authority and granted bail pending appeal. . Barring extension,3 Youth Authority jurisdiction over him will terminate at age 25. (Welf. & Inst. Code, § 1771.) Jeffers is now 23. In addition, controlling law permits parole whenever the Youthful Offenders Parole Board determines “it will be to [his] advantage to be paroled.” (Welf. & Inst. Code, § 1176.)
Even had Jeffers been too old for a Youth Authority commitment, we would not find application of section 1203.065 constitutionally infirm.
Under the doctrine of separation of powers, courts may not lightly encroach upon matters within the Legislature’s domain. (People v. Wingo (1975) 14 Cal.3d 169, 174 [121 Cal.Rptr. 97, 534 P.2d 1001].) In reviewing legislation assertedly imposing cruel and unusual punishment, the court must uphold statutes “ ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ” (Id. at p. 174.)
Where reasonable minds may differ about a penalty, courts should defer to the Legislature because it has the broadest discretion possible in specifying the punishment for a crime. (In re Lynch (1972) 8 Cal.3d 410, 414 [105 Cal.Rptr. 217, 503 P.2d 921].) Fitting a penalty to a crime is not [856]an exact science; it involves appraising the evil to be corrected, weighing alternatives, considering policy and responding to the public will. Leeway is permissible. (Id. at p. 423.) The test is whether the punishment is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Id. at p. 424.)
In In re Lynch, supra, 8 Cal.3d at pages 425-427, the California Supreme Court adopted a three-part analysis to determine whether a penalty is cruel and unusual: (1) evaluating the dangerousness of the offense and the offender to society; (2) comparing “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious”; and (3) comparing the challenged penalty with punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.
Jeffers contends absolutely barring probation for pimps and panderers is unconstitutional because the crimes of pimping and pandering do not necessarily involve the use or threat of violence. He also attacks section 1203.065 for not distinguishing between first-time and repeat offenders. However, the Legislature has reasonably determined pimping and pandering are dangerous to society. “Pimping and pandering involve the corruption of others. The perpetrator of these offenses encourages, or profits from, the commission of crimes by others. The offenses evidence a ‘readiness to do evil’ [citation] and are ‘extremely repugnant to accepted moral standards.’ ...” (People v. Jaimez (1986) 184 Cal.App.3d 146, 150 [228 Cal.Rptr. 852].) Sections 266h and 266i “are both designed to discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitute’s operation, or increasing the supply of available prostitutes. [Citations.]” (People v. Hashimoto (1976) 54 Cal.App.3d 862, 867 [126 Cal.Rptr. 848].) Panderers commonly prey on very young women. Indeed, here Beth was a teenage runaway. Many victims of panderers have experienced difficulties at home, in school or on the job, or have become dependent on drugs, making them particularly vulnerable to panderers’ promises of easy money. (Jennings, The Victim as Criminal: A Consideration of California’s Prostitution Law (1976) 64 Cal.L.Rev. 1235, 1252.) Further, once a prostitute has an arrest record her chances of rehabilitation and finding legitimate employment are diminished. (Id. at p. 1247.) Additionally, commercialized sexual activity adversely affects the community by flourishing in an environment conducive to other criminal behavior. (Id. at pp. 1243-1244.) The Legislature may constitutionally impose a ban on probation even where a crime does not involve direct violence to another person. (People v. Madden (1979) 98 Cal.App.3d 249, 255 [159 Cal.Rptr. 381].) In light of the dangers pandering and pimping pose to both the prosti[857]tute victim and the community at large, an absolute bar of probation for convicted panderers and pimps is not unreasonable.
Turning to the second prong of the Lynch test, comparing penalties for pimping and pandering with penalties imposed in California for other crimes deemed more serious also leads to the conclusion the Legislature did not act unreasonably in barring probation for pimps and panderers. Jeffers contends section 1203.065, subdivision (a)’s absolute prohibition of probation for pimping and pandering is disproportionate given the heinous, dangerous and violent offenses where probation is permissible in special, limited circumstances under sections 1203, subdivisions (e)(1) and (e)(2), 1203.055 and 1203.09, subdivision (f). However, the statute challenged here is not out of line with other punishments in California. The Legislature has absolutely barred probation for numerous heinous, dangerous and violent crimes more serious than pimping and pandering. (§§ 1203.06, subd. (a); 1203.065, subd. (a); 1203.066, subd. (a); 1203.075, subd. (a); 1203.09, subd. (a) and (b).) (17) Section 1203.06, subdivision (a)’s ban on probation for robbers using a firearm does not constitute cruel and unusual punishment. (People v. Main (1984) 152 Cal.App.3d 686 [199 Cal.Rptr. 683].) Section 1203.065, subdivision (a)’s ban on probation for rape by threat does not constitute cruel or unusual punishment. (People v. Gayther (1980) 110 Cal.App.3d 79, 90 [167 Cal.Rptr. 700].) The Legislature has also absolutely barred probation for certain controlled substances violations. (§ 1203.07, subd. (a).) Section 1203.07, subdivision (a)’s ban on probation does not constitute cruel or unusual punishment. (People v. Madden, supra, 98 Cal.App.3d 249.)
The third prong of the Lynch analysis is comparing the punishment imposed in California with the penalties imposed by other states for the same crimes. Jeffers contends no other state denies probation eligibility for first time violations of pimping and pandering statutes. However, Massachusetts requires two years in custody before probation eligibility. (Mass. Gen. Laws Ann., ch. 272, § 7 (West 1986).) Further, even if California’s punishment may be more severe than other states’ insofar as mandating three-year minimum incarceration for adult offenders, the mere fact “a majority of other states impose a less severe penalty is not enough to show cruel or unusual punishment.” (People v. Main, supra, 152 Cal.App.3d at p. 696.) The Lynch “techniques are not mechanical—they are not conclusive or dispositive—but only grounds for suspecting the constitutionality of the statute.” (Bosco v. Justice Court (1978) 77 Cal.App.3d 179, 189 [143 Cal.Rptr. 468].) Lynch authorizes “constitutional interference” only where the California penalty is grossly excessive compared to the rest of the nation. (In re Maston (1973) 33 Cal.App.3d 559, 566 [109 Cal.Rptr. 164].) California’s penalties for pimping and pandering are not the nation’s most severe. California’s eight-year maximum punishment for the crimes is less severe [858]than numerous other states’ maximum terms. For example, Delaware’s maximum is 30 years. (Del. Code Ann., tit. 11, §§ 1353, 4205 (1984).) Twenty years is the maximum in Idaho (Idaho Code, § 18-5602 (1986)), Michigan (Mich. Comp. Laws Ann., § 750.455 (West 1986)) and Montana (Mont. Code Ann., § 45-5-603 (1986)). California’s penalties are not grossly excessive or disproportionate compared to those of other states. Moreover, even if California’s absolute ban of probation were deemed suspect under the third prong of Lynch, such punishment is not so disproportionate under the first and second prongs as to be unconstitutional. (Bosco v. Justice Court, supra, 77 Cal.App.3d at p. 189.)
Section 1203.065, subdivision (a)’s absolute ban of probation for pimps and panderers is not cruel or unusual.
Citing People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697], Jeffers contends as applied to him section 1203.065, subdivision (a)’s ban of probation is unconstitutional given the relatively nonviolent facts of his crimes and his youth, intelligence, well-adjusted personality, fairly responsible behavior and minimal prior criminal record. In assessing Jeffers’s contention, we are to “ ... consider not only the offense in the abstract—i.e., as defined by the Legislature—but also ‘the facts of the crime in question’ [citation]—i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (Id. at p. 479.) We are also to consider “whether the punishment is grossly disproportionate to the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) In People v. Main, supra, 152 Cal.App.3d 686, using the Lynch analysis the court held a mandatory 3-year sentence imposed on an 18-year-old robber who used a firearm was not cruel or unusual despite mitigating circumstances including the defendant’s youth, unsophistication and lack of prior criminal record and the fact the gun was unloaded and inoperable.
Jeffers personally promoted, encouraged, directed, assisted and profited from his prostitutes’ acts. His pandering and pimping showed sophistication, planning and premeditation. Jeffers slapped his victim Rosemary to try to force her back to work. Jeffers’s victim Beth was a minor. On this record denial of probation to Jeffers with a Youth Authority commitment was not disproportionate to his crimes or his individual culpability.
Disposition
The judgment is affirmed.
[859]Lewis, J., concurred.
All statutory references are to the Penal Code unless otherwise specified.
The fact Rosemary may have initially approached Jeffers because she wanted to work for him as a prostitute does not preclude a finding Jeffers pandered. (Cf. People v. Bradshaw 973) 31 Cal.App.3d 421, 425-426 [107 Cal.Rptr. 256].)
Extended confinement is theoretically possible under Welfare and Institutions Code sections 1780-1783 and 1800-1803.