Davis

[Opinion certified for partial publication. [*] ]

OPINION

HUFFMAN, P.J.

Appellant (Davis) was convicted of violation of Penal Code section 647, subdivision (b) [1] on the theory that she agreed to "engage in act of prostitution." Davis contends that the trial court erred in its interpretation of that portion of section 647, subdivision (b) [2] which requires an act be done in furtherance of the agreement. Davis also contends that since the conviction was based upon an invalid theory of law this court should not affirm the conviction on an alternate theory, even if we find substantial evidence to support such theory. We agree and reverse the conviction.

According to the settled statement, on March 29, 1987, about 10:25 p.m. San Diego police officers acting in an undercover capacity contacted Davis and another woman, Rochelle Moore (Moore), standing on a street corner. Moore asked one of the officers if he was looking for a "date" to which he responded, "yes." Thereafter Moore opened the door, entered the car and sat next to the officer. Davis immediately followed and sat next to Moore and the door of the car. Moore inquired as to whether the officer had a room to which he…