Opinion
WARD, J. In the trial court, petitioners Brent Howard Wooten and Daniel Robert Mendoza (defendants) stand charged with pimping and pandering. According to the evidence at their preliminary hearing, they worked as managers at the Flesh Club. The Flesh Club appears to have been mainly a standard “strip joint.” However, it also offered semiprivate rooms in which, for $240, plus an optional gratuity, a customer could watch two naked women perform sexual acts on each other for approximately nine minutes.
Defendants seek review of the trial court’s refusal to set aside the information. They contend there was insufficient evidence of “prostitution,” and hence insufficient evidence of either pimping or pandering, because (1) the women sexually touched only each other and not the customer, and (2) the only customer shown by the evidence was an undercover police officer, who, defendants argue, lacked the necessary intent to obtain sexual arousal or gratification.
We agree with defendants as to the first point. We will hold that the definition of “prostitution” requires physical contact between the prostitute and the customer. Because there was no physical contact between the women and the customers, there can be no underlying crime of prostitution. Without prostitution, there is insufficient evidence of either pimping or pandering. Hence, defendants’ motion to set aside the information should have been granted. Because we reverse the trial court’s denial of defendants’ motion on this ground, we need not address the merits of defendants’ other contentions.
[425]I. Factual Background
The following facts were shown at the preliminary hearing.
The main room of the Flesh Club consisted of a stage on which nude dancers performed. It was surrounded by chairs and couches; the couches were used for lap dances. A separate room, called the V.I.P. Room, included five to 10 booths. Each booth was about five feet square and furnished with two small couches and a lamp on a table. The entrance to each booth was partially covered by a sheer curtain. On May 4, 9, 16, 22, and 26, 2000, Officer Mark Aranda and Officer Jerry Valdivia visited the Flesh Club, posing as customers. Officer Valdivia was in a wheelchair, pretending to be disabled, to facilitate his operation of a hidden video camera.
During each visit, the officers went into one of the booths with two female dancers. For about nine minutes, the dancers performed sexual acts on each other.
On May 4, 2000, Officer Valdivia paid each of the dancers $100, plus a $10 tip. On May 9, 2000, he was told that the price had gone up to $120, of which the “house” would receive $45. Thus, on all other dates, he paid each dancer $120, sometimes adding a $5 to $10 tip.
On May 4, 2000, the dancers involved were “Angel” and “Cat.”1 Defendant Mendoza was a manager employed by the Flesh Club. From time to time, he looked into the booth and wrote something on a clipboard.
On May 22, 2000, the dancers involved were “Veronica” and “Anaya,” and Veronica and “Malibu.” Defendant Wooten was another manager employed by the Flesh Club. From time to time, Wooten came around with a clipboard and checked on the dancers.
On May 26, 2000, the police executed a search warrant at the Flesh Club. Anaya and “Exotica” told police the charge for a V.I.P. Room show was $120 per dancer. Exotica said $75 of this went to the dancer and $45 went to the management at the end of the night. She said the managers kept track of how much the “house” should receive by walking around and taking notes on what each dancer was doing.
[426]II. Procedural Background
A felony complaint was filed charging Mendoza with four counts, all allegedly committed on May 4, 2000: pimping2 and pandering3 with respect to Angel, and pimping and pandering with respect to Cat. The same complaint also charged Wooten with six counts, all allegedly committed on May 22, 2000: pimping and pandering with respect to Veronica, Anaya and Malibu. After a preliminary hearing, defendants were held to answer.
An information containing the same charges was filed. Defendants filed a motion to set aside the information.4 They argued that there was no underlying prostitution because “the customer d[id] not receive sex for his money.” (Capitalization omitted.) They also argued there was no prostitution because the particular customers involved, the police officers, did not pay the dancers with the intent that they and/or the dancers be sexually aroused or gratified. The trial court denied the motion.
Thereafter, defendants filed a petition for writ of prohibition in this court.5 Originally, we denied the petition summarily. The Supreme Court, however, granted defendants’ petition for review and transferred the case back to us with directions to issue an order to show cause. We hereby comply.
III. Analysis
A. The Trial Court Erred in Denying Defendants ’ Motion to Set Aside the Information
Defendants contend that the trial court erred in denying defendants’ motion to set aside the information because the conduct complained of fails to meet the definition of prostitution under section 647, subdivision (b). Hence, without prostitution, there can be no pimping or pandering. The People disagree and argue that the scope of the statute includes the sexual conduct that occurred at the Flesh Club.
[4271]. Standard of Review
The trial court must grant a motion to set aside the information if “the defendant ha[s] been committed without reasonable or probable cause.”6 The denial of such a motion is reviewable by way of a petition for writ of prohibition.7
There is no factual dispute in this case. The only issue to be resolved is whether the alleged conduct constitutes “prostitution” under section 647, subdivision (b), in order to determine whether defendants have been “committed without reasonable or probable cause” for the crimes of pimping and pandering. “The proper interpretation of statutory language is a question of law which this court reviews de novo, independent of the trial court’s ruling or reasoning. [Citations.]”8
Accordingly, we apply the de novo standard in determining whether the sexual conduct alleged herein constitutes prostitution under section 647, subdivision (b). If the conduct constitutes prostitution, the trial court properly denied the motion. If, however, the conduct fails to constitute prostitution, as a matter of law, then the trial court should have granted the motion to set aside the information because, without the underlying offense of prostitution, there would be no reasonable or probable cause to commit defendants for the crimes of pimping and pandering.
2. Legal Background
a. Definitions of Pimping, Pandering, Prostitution and Lewd Act
Pimping is committed by “any 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 ”9
Pandering, as relevant here, is committed by “any person who . . . :
“(1) Procures another person for the purpose of prostitution, [|] • • • [10
[428]“(4) By promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate.”10
In People v. Freeman, the Supreme Court stated that the definition of prostitution is derived from section 647, subdivision (b) because the pandering statute does not define prostitution.11 Section 647, subdivision (b) states that “ ‘prostitution’ includes any lewd act between persons for money or other consideration.” Hence, the definition of prostitution, and ultimately, the definition of pimping or pandering, depends on what sexual conduct is considered to be a “lewd act.”
“Lewd conduct” has been defined by Pryor v. Municipal Court,12 and People v. Hill.13 In Freeman, the Supreme Court noted that in Pryor, it defined “lewd conduct” as “ ‘touching of the genitals, buttocks, or female breast, for the purpose of sexual arousal, gratification, annoyance or offense . . . .’ [Citation.]” for purposes of section 647, subdivision (a).14, 15 The Supreme Court also noted that in Hill, a lower court had followed Pryor by defining “lewd act,” for purposes of section 647, subdivision (b), so as to require that “ ‘the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.’ ”16
b. The Rule of Lenity
The People argue that the sexual conduct that occurred at the Flesh Club constitutes prostitution, as defined under section 647, subdivision (b), because the statute does not state that there must be touching between the customer and the prostitute. Section 647, subdivision (b) simply states that prostitution “includes any lewd act between persons for money or other [429]consideration.” Defendants, however, argue that the conduct does not satisfy the statutory definition of prostitution because courts have defined “lewd act,” which was not defined by the Legislature, as requiring the touching between a customer and a prostitute.
Hence, it appears that, under the current status of the law in California, the definition of prostitution is susceptible to different interpretations.
“When language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit. The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.”17
“ ‘Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability. [Citation.] (“[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity”).’ [Citation.] . . . [C]riminal penalties, because they are particularly serious and opprobrious, merit heightened due process protections for those in jeopardy of being subject to them, including the strict construction of criminal statutes.”18
Keeping the rule of lenity in mind, we shall determine whether the sexual conduct that occurred at the Flesh Club constitutes “lewd acts” to fit the definitional requirement of “prostitution”.
3. The Sexual Conduct Alleged Herein Does Not Constitute Prostitution
In this case, the evidence is undisputed. There was evidence that the dancers touched each other’s genitals; there was no evidence, however, that the dancers touched either of the officers except to shake hands with them. The issue, therefore, is whether a customer’s observation of sexual conduct between two dancers, in exchange for consideration, constitutes a lewd act for purposes of prostitution.
[430]Hill stated that “bodily contact between the prostitute and the customer is required” to be a lewd act.19 In Hill, the defendant was charged with pimping and pandering.20 An undercover officer testified that the defendant agreed to supply him with a teenage boy in exchange for $300. The defendant showed up at the officer’s hotel room with a teenage boy, commented that the boy “knew what to do sexually,” and accepted a payment of $300. After the defendant left, the boy offered to engage in either oral copulation or sodomy.21 The defendant testified that it was his understanding that the officer wanted to use the boy only as a nude model for a photo session.22
The appellate court reversed because the trial court had defined “prostitution” for the jury in terms of “lewd or dissolute acts” without defining “lewd or dissolute acts.” Thus, the Hill jury was never informed that “to constitute ‘prostitution,’ the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.”23 The court then stated that “[s]uch bodily contact between the prostitute and the customer is required to satisfy the constitutional mandate of Pryor in light of the provisions of Penal Code section 647, subdivision (b), which define ‘prostitution’ as including ‘any lewd act between persons for money or other consideration.’ (Italics added.)”24
After Hill came Freeman. In Freeman, in the course of producing and directing an “adult” film called Caught from Behind, Part II, the defendant hired and paid actors and actresses to perform sex acts, including sexual intercourse, oral copulation, and sodomy. As a result, the defendant was convicted of pandering.25
In Freeman, the Supreme Court relied upon Hill’s definition of prostitution, that “ ‘the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.’ ”26 Freeman itself, however, did not analyze whether any contact between the prostitute and the customer was necessary. Instead, Freeman decided the case based on the second prong of Hill’s definition: That there [431]was no evidence that the defendant paid the acting fees for the purpose of sexual arousal or gratification of the defendant or the actors.27
Applying the Hill definition of prostitution, the Supreme Court commented: “One contention of defendant is that requisite to the crime of prostitution is the existence of a ‘customer’ and there being no ‘customer’ here, no prostitution was involved and therefore no procurement for purposes of prostitution and no pandering. We find it unnecessary to address that contention. Whether or not prostitution must always involve a ‘customer,’ it is clear that in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification.”28 It therefore concluded: “There is no evidence that defendant paid the acting fees for the purpose of sexual arousal or gratification, his own or the actors.’ Defendant, of course, did not himself participate in any of the sexual conduct. Defendant, the payor, thus did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution.”29
Then, the court went on to hold, alternatively, that: “[E]ven if defendant’s conduct could somehow be found to come within the definition of ‘prostitution’ literally, the application of the pandering statute to the hiring of actors to perform in the production of a nonobscene motion picture would impinge unconstitutionally upon First Amendment values.”30
Hence, the definition of “lewd acts,” as it would apply to the facts in this case, is unclear.
The statute, section 647, subdivision (b), defines “prostitution” as “any lewd act between persons for money or other consideration.” Although this broad definition of “prostitution” could plausibly be interpreted to include sexual conduct between two dancers, for money or other consideration from a customer, Hill and Freeman support a different interpretation: That a lewd act, an element of prostitution, requires touching between the prostitute and the customer, even if the customer is simply an observer of sexual acts between two prostitutes.
We recognize that in Hill, the only two persons involved were the male prostitute and the undercover officer, and the court was not confronted with a situation where a customer would not be involved in sexual activity with [432]the prostitute. We also recognize that, although Freeman adopted the Hill definition of “lewd act,” Freeman limited its application of the Hill definition to the second prong—whether the defendant paid the acting fees for the purpose of sexual arousal or gratification of the defendant or the actors. Nevertheless, there are no reported cases that deviate from or disapprove of the definition of “lewd act” espoused in Hill and relied upon in Freeman.
The dissent urges us to ignore Hill’s definition of prostitution as requiring contact between a prostitute and a customer, and Freeman’s sole citation to the Hill definition of “prostitution” under section 647, subdivision (b), because it “is sheer dictum.”31 We disagree.
Black’s Law Dictionary defines “dictum” as follows: “A statement, remark, or observation. Gratis dictum-, a gratuitous or voluntary representation; one which a party is not bound to make. Simplex dictum-, a mere assertion; an assertion without proof.”32 In Hill, the court specifically analyzed the definition of prostitution under section 647, subdivision (b). Thereafter, Hill concluded that the words, “ ‘any lewd act between persons for money or other consideration’ ”33 required “bodily contact between the prostitute and the customer ... to satisfy the constitutional mandate of Pryor.”34 The definition of prostitution was central to the resolution of the holding in Hill. Hence, we cannot agree with the dissent that the definition of prostitution in Hill was “sheer dictum.” „
In light of the rule of lenity, that criminal statutes must “ ‘provide fair warning concerning conduct rendered illegal,’”35 and the policy of California “to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit[,] . . . [d]efendant[s] [are] entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.”36 Given the ambiguity in the definition of “lewd act,” defendants are entitled to a resolution of the ambiguity in their favor: “To the extent that the language or history of [a statute] is uncertain, this ‘time-honored interpretive guideline’ serves to ensure both that there is fair warning of the boundaries [433]of criminal conduct and that legislatures, not courts, define criminal liability. [Citations.]”37
Hence, we conclude that the definition of prostitution under section 647, subdivision (b), as interpreted by Hill and applied by Freeman, requires sexual contact between the prostitute and the customer. In this case, it is undisputed that there was no sexual contact between the dancers and the officers. Without sexual contact, there can be no prostitution. Without the underlying crime of prostitution, there can be no pimping or pandering.
The People point to a Wisconsin case, State v. Kittilstad,38 in support of the claim that the alleged conduct constitutes prostitution under California’s statute. Kittilstad is distinguishable.
In Kittilstad, the defendant, a Lutheran minister, let a series of young men stay at his home while they were studying at a local college. He repeatedly offered each of them money if they would have sex with a woman and let him watch. Each of them refused.39 The Wisconsin Supreme Court held that these actions, as shown at the preliminary hearing, supported a charge of solicitation of prostitution.40 The defendant argued the conduct he had allegedly solicited did not constitute prostitution because he was only “attempting to facilitate voyeurism, not the providing of sex for a fee.”41 The court disagreed: “[U]nder the defendant’s interpretation [the solicitation statute] would not apply to a situation in which a father pays someone to have sex with his son or a businessman pays someone to have sex with his client. [Citation.] [f] The exclusion of these situations from the reach of the broad language of [the solicitation statute] would be unreasonable.”42 “Although it may be true that the crime of prostitution more typically involves the direct and knowing exchange of money by one person in return for sex from the other person, the plain language of [the prostitution statute] extends to other situations.”43
Wisconsin’s statute states that a person is guilty of prostitution if that person “requests to commit an act of sexual gratification, in public or in private, involving the sex organ or one person and the mouth or anus of another for anything of value” or “requests to commit an act of sexual contact [434]for anything of value.”44 Hence, under the Wisconsin statute, the conduct alleged in Kittilstad constituted prostitution because the defendant requested that the young men engage in sexual conduct in exchange for money. If California’s statute contained the language that was included in Wisconsin’s statute, the sexual conduct alleged herein could constitute prostitution. California’s statute, however, is different. Section 647, subdivision (b) simply states that prostitution includes “any lewd act between persons for money or other consideration.” And as discussed above, California courts have defined lewd acts as requiring physical contact between the prostitute and customer.
Moreover, the People’s reliance on State v. Taylor,45 an Arizona case, is also misplaced. In Taylor, undercover officers investigated activities at the Ellwest Stereo Theatre in Phoenix, Arizona, which “ ‘caters to the sexual fantasies of the desperate.’”46 Ellwest contained film booths with graphically sexual movies and an arena where “dancers” displayed and fondled their vaginas and breasts. Additionally, the theatre offered shows in a closet-sized booth which had “a clear glass window, a telephone, a trash can for used tissues, one coin slot for tokens, and a larger slot for bills.”47 Customers could view nude dancers from a distance of two feet through the window. A dancer advised a customer by phone that she would perform for a tip of $20. A customer could engage other women in sex acts for an additional $20 for each person.48 One of the dancers, who was also the manager of Ellwest, was convicted of four prostitution-related crimes 49 The Arizona appellate court affirmed the defendant’s convictions because the Arizona statute “does not require sexual contact with the customer; it was written sufficiently broadly to encompass a sexual transaction for a customer who engages only as voyeur.”50
Taylor is not instructive because the statute defining prostitution in Arizona differs from California’s statute. “Arizona defines ‘prostitution’ as ‘engaging in or agreeing or offering to engage in sexual conduct with another person under a fee arrangement with that person or any other person.’ [Citation.]”51 Arizona’s statute is clear, and the sexual conduct that occurred at the Flesh Club, if prosecuted in Arizona, would clearly constitute prostitution. California’s statute, however, defines prostitution as “any lewd act between persons for money or other consideration.” The phrase “lewd [435]act” has been interpreted to require sexual contact between the prostitute and the customer. Hence, California’s statute was not written “sufficiently broadly to encompass a sexual transaction for a customer who engages only as voyeur.”52
The dissent argues that two cases, People ex rel. Van de Kamp v. American Art Enterprises, Inc.53 and People v. Fixler54 support its conclusion that prostitution does not require a touching between the customer and the prostitute.
The definition of “prostitution” espoused in Fixler, and adopted in American Art Enterprises, was clarified in Hill. As the dissent points out, Fixler held that prostitution is committed when someone pays two models for the purpose of photographing the models having sex with each other.55 Four years later, Hill revisited the definition of prostitution. Hill recognized that three years after Fixler, the Supreme Court defined “lewd conduct,” under section 647, subdivision (a), as conduct involving “ ‘the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense, . . .’ ”56 Hill then went on to recognize that prostitution, proscribed by section 647, subdivision (b), constituted an essential element of the crimes of pimping and pandering under sections 266h and 266L Thereafter, the court stated that “[application of the Pryor holding to the concept of a ‘lewd’ or ‘dissolute’ act as a part of the term ‘prostitution’ involved in Penal Code sections 266h and 266i, compels a decision that, for a ‘lewd’ or ‘dissolute’ act to constitute ‘prostitution,’ the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute. Such bodily contact between the prostitute and the customer is required to satisfy the constitutional mandate of Pryor in light of the provisions of Penal Code section 647, subdivision (b), which define ‘prostitution’ as including ‘any lewd act between persons for money or other consideration.’ (Italics added.)”57
Moreover, as the dissent also recognizes, the Supreme Court in Freeman disapproved of Fixler and American Art Enterprises to the extent that the cases held “that the payment of wages to an actor or model who performs a [436]sexual act in filming or photographing for publication constitutes prostitution regardless of the obscenity of the film or publication so as to support a prosecution for pandering under section 266i.”58 Also, in defining prostitution, Freeman looked to the definitions espoused in Pryor and Hill, not to the definitions in Fixler or American Art Enterprises.
Therefore, the validity of the definition of prostitution pronounced in Fixler and American Art Enterprises, at best, is questionable. Given the different definitional interpretations the courts have adopted for “prostitution,” the rule of lenity applies. Hence, defendants are “entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.”59
We conclude that, because there were no lewd acts, i.e. no touching between the dancers and the customers, the conduct alleged herein failed to constitute “prostitution” under section 647, subdivision (b). Without the underlying crime of prostitution, there can be no pimping and pandering under sections 266h and 266i.
Moreover, the dissent alludes to public policy considerations and points to a number of hypotheticals in which a person pays to watch sex being performed. The dissent contends that “regardless of who the payor is, there is an exchange of sex for money. That is the quintessence of prostitution.”60 The dissent’s broad definition of prostitution may implicate public policy considerations.
For better or worse, our society has developed a tolerance for a wide variety of exchanges of sex for money. By our opinion, we are not approving of the acts performed at the Flesh Club. Nor do we approve of the other manifestations of sex for money with which our society now contends. Currently, there are numerous ways in which a person can pay money and see a performance of sex. Many of these circumstances are admittedly remote: pornographic home videos, pornographic computer websites, pay for view television, peep show theaters, and movie houses. Not so remote are the sex acts performed as a part of stage plays in front of live audiences. The performances in this case, by two women in a booth in a “theater,” is different from the other performances only in degree. The dissent’s definition of prostitution would include not only the Flesh Club presentations but any sex act performed on stage and, in theory, other presentations as well.
As objectionable as the performances are in this case, we are loath to find a public policy requirement that the acts be criminalized under existing law. [437]Our Supreme Court found no public policy reason in Freeman to criminalize sex acts being recorded on film for distribution to potentially millions of people of all ages. While we offer no defense for the performances at the Flesh Club, at least it can be said that they are given to a small audience in an establishment which limits its clientele.
4. There Was No Evidence That Defendants Had Knowledge About a Dancer’s Offer to Commit Prostitution
We agree with the dissent that section 647, subdivision (b) does not require a completed act of prostitution, and that pimping and pandering do not require a completed act of prostitution. We, however, disagree with the dissent’s conclusion that one of the dancer’s offer of a “hand job” to an officer was sufficient to prove a pimping or pandering charge against defendants.
Pimping, under section 266h, subdivision (a), is committed by “any 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, . . .” The dissent acknowledges that pimping requires a defendant know that another person is a prostitute.61
Moreover, pandering, under section 266i, subdivision (a)(4), is committed by any person who “[b]y promises, threats, violence or by any device or scheme, causes, induces, persuades or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate.” Hence, pandering also requires that a defendant encourage prostitution, whether attempted or completed.
In this case, there is absolutely no evidence that defendants had knowledge that Malibu offered a “hand job” to Officer Aranda. At the preliminary hearing, Officer Aranda testified about his and Officer Valdivia’s investigation of the Flesh Club on May 22, 2000. On that day, after Malibu and Veronica engaged in sexual activity and Officer Valdivia paid the dancers for their performance, Malibu stated that she was willing to perform a hand job on Officer Aranda. No further evidence was presented to follow up on Officer Aranda’s testimony regarding this “hand job” offer.
Officer Aranda also testified about the officers’ investigation of the Flesh Club on May 26, 2000. On that date, Officer Valdivia and Malibu again discussed Malibu performing “a hand job or masturbation” on Officer Aranda. Officer Aranda went on to state that neither defendant walked by or [438]checked on the dancers while they were performing sexual activities in the VIP booth that entire evening. Again, there was no further testimony regarding Malibu’s offer of a “hand job.” No charges were filed for acts that occurred on May 26, 2000.
Hence, there was no evidence presented that either defendant observed Malibu’s offer to give Officer Aranda a “hand job” on either May 22 or May 26. At most, Officer Aranda testified that defendants came by and saw the dancers when they were engaged in sexual activities with each other.
Nevertheless? the dissent argues that Malibu’s offer to commit prostitution supports charges of pimping and pandering simply because defendants had a general awareness of sex acts occurring at the club. The dissent’s reference to this general knowledge, however, has no applicability to the specific acts of pimping and pandering alleged in this felony complaint. The pimping and pandering charges in the complaint relate to specific “dancers”—Angel, Cat, Veronica, Anaya and Malibu, and specific dates—May 4, 2000, and May 22, 2000, not other sexual conduct that may have occurred at the club. In fact, the focus of this case has been that prostitution occurred at the Flesh Club because of the sexual acts between the dancers: throughout the preliminary hearing, briefing on appeal, and oral argument, the prosecution vociferously argued that the sexual acts that occurred between the dancers constituted prostitution.
In sum, although Malibu’s offer of a “hand job” could constitute prostitution, that offer—standing alone—is insufficient to support a charge of pimping or pandering because there was no evidence that defendants knew that Malibu had made such an offer. As stated above, defendants’ knowledge of the prostitution, as alleged in the felony complaint, is an essential element of pimping and pandering.
Disposition
The order to show cause is discharged and the petition for writ of prohibition is granted. Let a peremptory writ of mandate issue directing respondent, the Superior Court of San Bernardino County, to set aside its order denying defendants’ motion to set aside the information under section 995, and to enter a new order granting the motion and setting aside the information.
Gaut, J., concurred.
Cat has also been spelled as “Kat.” For consistency, we will refer to her as Cat.
Penal Code section 266h, subdivision (a). All statutory references will be to the Penal Code unless otherwise indicated.
Section 266i, subdivision (a)(4).
Section 995, subdivision (a)(2).
Section 999a.
Section 995, subdivision (a)(2)(B).
Section 999a.
Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 126 [60 Cal.Rptr.2d 377], overruled on other grounds in Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 40 [91 Cal.Rptr.2d 293, 989 P.2d 720].
Section 266h, subdivision (a).
Section 266i, subdivision (a)(1), (4).
People v. Freeman (1988) 46 Cal.3d 419, 424 [250 Cal.Rptr. 598, 758 P.2d 1128] (Freeman), certiorari denied sub nom. Applegate v. California (1989) 489 U.S. 1017 [109 S.Ct. 1133, 103 L.Ed.2d 194].
Pryor v. Municipal Court (1979) 25 Cal.3d 238 [158 Cal.Rptr. 330, 599 P.2d 636] (Pryor).
People v. Hül (1980) 103 Cal.App.3d 525 [163 Cal.Rptr. 99] (Hill).
Freeman, supra, 46 Cal.3d 419, 424, italics omitted, quoting Pryor, supra, 25 Cal.3d 238, 256.
Section 647, subdivision (a) makes any person “[w]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view” guilty of disorderly conduct, a misdemeanor.
Freeman, supra, 46 Cal.3d 419, 424, italics omitted, quoting Hill, supra, 103 Cal.App.3d 525, 534-535.
People v. Overstreet (1986) 42 Cal.3d 891, 896 [231 Cal.Rptr. 213, 726 P.2d 1288].
People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313 [58 Cal.Rptr.2d 855, 926 P.2d 1042], citing Liparota v. United States (1985) 471 U.S. 419, 427 [105 S.Ct. 2084, 2089, 85 L.Ed.2d 434, 441].
Hill, supra, 103 Cal.App.3d 525, 535.
Hill, supra, 103 Cal.App.3d 525, 528.
Hill, supra, 103 Cal.App.3d 525, 528-529.
Hill, supra, 103 Cal.App.3d 525, 529-530.
Hill, supra, 103 Cal.App.3d 525, 534-535.
Hill, supra, 103 Cal.App.3d 525, 535, italics added.
Freeman, supra, 46 Cal.3d 419, 422.
Freeman, supra, 46 Cal.3d 419, 424, original italics omitted, new italics added, quoting Hill, supra, 103 Cal.App.3d 525, 534-535.
Freeman, supra, 46 Cal.3d 419, 424-425.
Freeman, supra, 46 Cal.3d 419, 424, italics omitted.
Freeman, supra, 46 Cal.3d 419, 424-425.
Freeman, supra, 46 Cal.3d 419, 425.
Dissenting opinion, post, at page 441.
Black’s Law Dictionary (6th ed. 1990) page 454, column 2.
Hill, supra, 103 Cal.App.3d 525, 535, quoting section 647, subdivision (b).
Hill, supra, 103 Cal.App.3d 525, 535.
People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th 294, 313.
People v. Overstreet, supra, 42 Cal.3d 891, 896.
Crandon v. United States (1990) 494 U.S. 152, 158 [110 S.Ct. 997, 1001-1002, 108 L.Ed.2d 132, 140.].
State v. Kittilstad (1999) 231 Wis.2d 245 [603 N.W.2d 732] (Kittilstad).
Kittilstad, supra, 603 N.W.2d 732, 734-735.
Kittilstad, supra, 603 N.W.2d 732, 737-740.
Kittilstad, supra, 603 N.W.2d 732, 738.
Kittilstad, supra, 603 N.W.2d 732, 738-739.
Kittilstad, supra, 603 N.W.2d 732, 739.
Wisconsin Statutes, Crimes, section 944.30, subdivisions (2) and (5), italics added.
State v. Taylor (1990) 167 Ariz. 429 [808 P.2d 314] (Taylor).
Taylor, supra, 808 P.2d 314, 315.
Taylor, supra, 808 P.2d 314, 315.
Taylor, supra, 808 P.2d 314, 315-316.
Taylor, supra, 808 P.2d 314, 316.
Taylor, supra, 808 P.2d 314, 316.
Taylor, supra, 808 P.2d 314, 316.
Taylor, supra, 808 P.2d 314, 316.
People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1977) 75 Cal.App.3d 523 [142 Cal.Rptr. 338] (American Art Enterprises).
People v. Fixler (1976) 56 Cal.App.3d 321 [128 Cal.Rptr. 363] (Fixler).
Dissenting opinion, post, at page 443.
Hill, supra, 103 Cal.App.3d 525, 534, quoting Pryor, supra, 25 Cal.3d 238, 256.
Hill, supra, 103 Cal.App.3d 525, 534-535.
Freeman, supra, 46 Cal.3d 419, 428, footnote 6.
People v. Overstreet supra, 42 Cal.3d 891, 896.
Dissenting opinion, post, at page 443.
People v. McNulty (1988) 202 Cal.App.3d 624, 630 [249 Cal.Rptr. 22], italics added.