Wooten

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…

I respectfully dissent. The Legislature has broadly defined “prostitution” as “any lewd act between persons for money or other *439 consideration,” (Pen. Code, § 647, subd. (b)) without specifying who the persons must be. The majority concludes, based on a dictum in People v. Hill (1980) 103 Cal.App.3d 525 [ 163 Cal.Rptr. 99 ], that this language is ambiguous. The “rule of lenity,” however, applies only “[w]hen ... the language of a penal law is reasonably susceptible of two interpretations . . . .” (People v. Robles (2000) 23 Cal.4th 1106, 1115 [ 99 Cal.Rptr.2d 120 , 5 P.3d 176 ], italics added.) One errant dictum doth not an ambiguity make.

I would hold that the statutory definition of “prostitution” does require a sexual contact between at least two people, but not necessarily between the prostitute and the customer. In response to defendants’ other contentions, I would also hold that the pimping and pandering statutes do not necessarily require a completed act of prostitution. The pimping statute can be satisfied by proof that the defendant derived support from money paid for another’s agreement to perform an act of prostitution. Here, regardless of Officer Valdivia’s actual…

Dennis L. Stout, District Attorney, Grover D. Merritt, Lead Deputy District Attorney, and Mary L. Andonov, Deputy District Attorney, for Real Party in Interest.

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 semi-private 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…