Section 1150 | CALCRIM (Jury Instructions)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
In element 2, use the appropriate alternative A–C depending on the evidence in the
case.
Give element 3 if it is alleged that the prostitute was a minor. Punishment is
enhanced if the minor is under the age of 16 years. (Pen. Code, § 266h(b).)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [855 P.2d 391].)
Defenses—Instructional Duty
If necessary for the jury’s understanding of the case, the court must instruct sua
sponte on a defense theory in evidence, for example, that nude modeling does not
constitute an act of prostitution and that an act of procuring a person solely for the
purpose of nude modeling does not violate either the pimping or pandering statute.
(People v. Hill (1980) 103 Cal.App.3d 525, 536–537 [163 Cal.Rptr. 99].)
AUTHORITY
•
Elements. Pen. Code, § 266h.
•
Prostitution Defined. Pen. Code, § 647(b); People v. Hill (1980) 103 Cal.App.3d
525, 534–535 [163 Cal.Rptr. 99]; People v. Romo (1962) 200 Cal.App.2d 83,
90–91 [19 Cal.Rptr. 179]; Wooten v. Superior Court (2001) 93 Cal.App.4th 422,
431–433 [113 Cal.Rptr.2d 195] [lewd act requires touching between prostitute
and customer].
•
General Intent Crime. People v. McNulty (1988) 202 Cal.App.3d 624, 630–631
[249 Cal.Rptr. 22].
•
Proof Person Is a Prostitute. People v. James (1969) 274 Cal.App.2d 608, 613
[79 Cal.Rptr. 182].
•
Solicitation Defined. People v. Smith (1955) 44 Cal.2d 77, 78–80 [279 P.2d 33].
•
Good Faith Belief That Minor Is 18 No Defense to Pimping and Pandering.
People v. Branch (2010) 184 Cal.App.4th 516, 521–522 [109 Cal.Rptr.3d 412].
COMMENTARY
Solicitation
In deciding there was sufficient evidence of solicitation, the court in People v.
Phillips (1945) 70 Cal.App.2d 449, 453 [160 P.2d 872], quoted the following
definitions:
“[S]olicit” is defined as: “To tempt . . . ; to lure on, esp. into evil, . . . to bring
about . . . ; to seek to induce or elicit . . . .” (Webster’s New International
Dictionary (2d ed.)). “. . . to ask earnestly; to ask for the purpose of receiving;
to endeavor to obtain by asking or pleading; . . . to try to obtain . . . . While it
SEX OFFENSES
CALCRIM No. 1150
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does imply a serious request, it requires no particular degree of importunity,
entreaty, imploration or supplication.” (58 C.J. 804–805.)
General Intent
The three ways of violating Penal Code section 266h are all general intent crimes,
as held in People v. McNulty (1988) 202 Cal.App.3d 624, 630–631 [249 Cal.Rptr.
22]:
[D]eriving support with knowledge that the other person is a prostitute is all that
is required for violating the section in this manner. No specific intent is
required . . . . Receiving compensation for soliciting with knowledge that the
other person is a prostitute is the only requirement under the first alternative of
violating section 266h by solicitation. Under the secon