McNulty

Defendant was charged and convicted by a jury of three counts of pimping (Pen. Code, § 266h), three counts of pandering (§ 266i), one count of conspiracy to commit pimping and one count of conspiracy to commit pandering (§ 182).

The court sentenced defendant to prison for a total of eight years, the maximum allowable term. There were no factors in aggravation or mitigation so the court gave him the midterm of four years as to one count and four years consecutive thereto as to three of the remaining counts, restrained only by the double-the-base-term prohibition of section 1170.1, subdivision (g). Defendant had no prior felony arrests.

Defendant appeals, contending: (1) the court should have instructed the jury that pimping was a specific intent crime; (2) the court should have instructed sua sponte that section 647, subdivision (b), soliciting or engaging in prostitution, is a lesser included offense of section 266h; (3) the court committed error in failing to instruct sua sponte on CALJIC No. 2.23; (4) the mandatory minimum penalty of three years in state prison for conviction of section 266h and section 266i is unconstitutionally cruel and/or unusual punishment as was…