BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1060 (Cogdill) 0
As Introduced February 16, 2010
Hearing date: April 6, 2010
Penal Code
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PANDERING
HISTORY
Source: California District Attorneys Association
Prior Legislation: AB 1303 (Miller) - Ch. 818, Stats. 1997
SB 1796 (Committee on Public Safety) - Ch. 405,
Stats. 2004
Support: California Peace Officers' Association; California
Police Chiefs Association; California State Sheriffs'
Association
Opposition:None known
KEY ISSUE
SHOULD PANDERING BE DEFINED TO INCLUDE CIRCUMSTANCES WHERE THE
DEFENDANT INDUCES, PERSUADES, ENCOURAGES OR CAUSES A PERSON TO
ENGAGE IN PROSTITUTION, REGARDLESS OF WHETHER OR NOT THAT PERSON HAS
BEEN A PROSTITUTE?
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PURPOSE
The purpose of this bill is to define pandering to include
circumstances where a defendant, by promises, threats, violence
or any device, induces, persuades, encourages or causes a person
to prostitute himself or herself, regardless of whether or not
the person has been or is a prostitute.
Existing law states any person who does any of the following is
guilty of pandering, a felony, and shall be punishable by a
prison term of three, four, or six years; the prison term is
three, six or eight years where the crime involved a minor under
the age of 16 (Pen. Code 266i, subd. (a)):
Procures another person for the purpose of prostitution.
Causes, induces, et cetera, another person to become a
prostitute.
Procures another person a place in a house or place of
prostitution.
Persuades or encourages a person to remain in a house or
place of prostitution through promises, threats, or scheme.
Procures another person for prostitution by fraud,
duress, abuse of confidence or authority.
Commercial exchange in connection with procuring another
person for prostitution.
Existing decisional law holds that a defendant cannot be
convicted of pandering in a case where the person the defendant
induced, encouraged, caused or persuaded to be a prostitute was
a prostitute at the time of the incident underlying the
pandering charges. (People v. Wagner (2009) 170 Cal.App.4th
499.)
This bill abrogates the holding in Wagner by specifically
providing that pandering occurs regardless of whether or not the
person encouraged, caused, induced or persuaded had been a
prostitute.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house . .
. (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, California "spends more on corrections
than most countries in the world," but the state
"reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
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passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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1. Need for This Bill
According to the author:
In a recent case, People v. Wagner, the 4th district
Court of Appeals held that the statute establishing
the offense of pandering, defined by "causing,
inducing, persuading, or encouraging another person to
become a prostitute", does not apply to a situation in
which a defendant has induced or encouraged a person
currently engaged in prostitution to commence working
for him or her.
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In Wagner, a police officer posing as a "John" watched
the defendant trying to recruit a current prostitute,
to leave her pimp to work for him. The jury convicted
the defendant of pandering. The court of appeal,
departing from 30 years of case law, reversed the
conviction, ruling that the crime of pandering does
not apply to a situation in which the defendant
induces a person currently engaged in prostitution to
work for him or her.
This ruling ignores the fact that there is harm in the
act of pandering, regardless of whether the recruit is
already engaged in prostitution. Just as we should
prevent a person from inducing another to become a
prostitute, we must not condone the act of encouraging
continuing prostitution.
2. People v. Wagner (2009) 170 Cal.App.4th 499: Defendant is not
Guilty of Pandering if the Person Induced or Persuaded to
Become a Prostitute was a Prostitute at the Time of the
Charged Incident
As explained in the statement by the sponsor quoted in Comment #
1, the purpose of this bill is to abrogate the decision of the
Court of Appeal, Fourth Appellate District, Division Three,<2>
in People v. Wagner (2009) 170 Cal.App.4th 499. The court in
that case found that the defendant, a pimp, was not guilty of
pandering where he sought to induce or persuade a working
prostitute to work for him.
In Wagner, an undercover police officer posing as a prostitution
customer saw defendant Latroy Wagner drive alongside prostitute
JH and attempt to speak to her. JH turned and walked quickly
away from Wagner's car. The officer concluded that Wagner was a
pimp and requested that another officer stop Wagner's car.
As the officer continued to observe him, Wagner followed JH and
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<2> The jurisdiction of Division Three of the Fourth District
Court of Appeal is Orange County.
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again attempted to speak to her. JH got into the officer's car
and asked him to drive away from the area.
Wagner was arrested and charged with pandering. At the trial,
the prosecution requested that the court modify the jury
instructions for pandering. The prosecutor requested the court
to instruct the jury that pandering includes inducing or
persuading a prostitute to "change her business relations."
Although trial court found the phrase "to change her business
relations" to be somewhat vague, the court modified the
instruction so as to include that phrase. Wagner was convicted
of pandering.
Wagner appealed his conviction. He argued that the pandering
statute included an element that the defendant induced or
persuaded a person who was not a prostitute to become a
prostitute. As JH was a prostitute at the time of the charged
offense, Wagner was not guilty of pandering. The appellate
court agreed with Wagner and reversed his conviction.
This bill was introduced to specifically provide that a
defendant is guilty of pandering if he or she induces,
persuades, encourages a person to prostitute himself or herself,
regardless of whether or not the person has been a prostitute.
Essentially, it appears that the intent of this bill is to
define pandering to include cases where a pimp solicits a
prostitute to ply his or her trade under the defendant's
supervision or control.
SHOULD PANDERING INCLUDE CIRCUMSTANCES WHERE A PIMP ATTEMPTS TO
ENCOURAGE, INDUCE, CAUSE OR PERSUADE A WORKING PROSTITUTE TO
WORK FOR THAT PIMP?
3. Issue Whether or not This Bill Substantially Expands the
Pandering Laws Beyond the Existing Policy
The court in Wagner noted that the Legislature had taken "pains
to be precise in what it was prohibiting." (People v. Wagner,
supra, 170 Cal.App.4th 499.) That is, existing law on pandering
prohibits a person from using some sort of coercion or
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inducement to bring someone into the sex trade who is not
working as a prostitute. The law appears intended to curb
expansion of prostitution and perhaps prevent corruption of
those who are not in that business. The author and sponsor
argue that this bill is consistent with existing laws and policy
concerning prostitution, pimping and pandering.
Existing crimes apply where a person commits an act of
prostitution. Existing laws impose felony penalties upon
persons who make a living or derive income through exploitation
of prostitutes. The court in Wagner essentially held that prior
appellate decisions had extended the pandering law well beyond
the meaning in the statute. Arguably, this bill would
significantly expand the pandering statute.
WOULD THIS BILL SIGNIFICANTLY EXPAND THE CRIME OF PANDERING?
ARE EXISTING PENALTIES ADEQUATE TO PUNISH PIMPS AND DETER
POTENTIAL PIMPS?
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