Wooten v. Superior Court
113 Cal. Rptr. 2d 195, 2001 Daily Journal DAR 11606, 93 Cal.App.4th 422 (2001)
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Rule of Law:
Under California Penal Code § 647(b), the crime of prostitution requires a 'lewd act' involving physical sexual contact between the prostitute and the paying customer. An act where a customer pays to observe performers engage in sexual acts with each other, without any physical contact with the customer, does not constitute prostitution.
Facts:
- Brent Howard Wooten and Daniel Robert Mendoza worked as managers at the Flesh Club, a strip club.
- In addition to standard stripteases, the Flesh Club offered shows in semiprivate V.I.P. rooms.
- For a fee of approximately $240, a customer could watch two naked female dancers perform sexual acts on each other for about nine minutes.
- The dancers touched each other's genitals and breasts, but did not engage in any sexual touching with the customers.
- On several occasions in May 2000, undercover police officers Mark Aranda and Jerry Valdivia posed as customers and paid for these V.I.P. room shows.
- Wooten and Mendoza were observed monitoring the dancers during these shows and taking notes on clipboards.
- Evidence indicated that a portion of the fee paid by the customers went to the club's management.
Procedural Posture:
- A felony complaint was filed in the trial court charging Brent Howard Wooten and Daniel Robert Mendoza with multiple counts of pimping and pandering.
- Following a preliminary hearing, the trial court held the defendants to answer on the charges.
- The prosecution subsequently filed an information containing the same charges.
- Wooten and Mendoza filed a motion in the trial court to set aside the information, arguing there was no evidence of the underlying crime of prostitution.
- The trial court denied the motion to set aside the information.
- Wooten and Mendoza filed a petition for a writ of prohibition with the Court of Appeal, which was summarily denied.
- The California Supreme Court granted the defendants' petition for review and transferred the matter back to the Court of Appeal with directions to issue an order to show cause.
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Issue:
Does the term 'lewd act' within the statutory definition of prostitution in California Penal Code § 647(b) require physical sexual contact between the prostitute and the paying customer, such that two dancers performing sexual acts on each other for a customer's paid observation does not constitute the underlying crime of prostitution?
Opinions:
Majority - Ward, J.
Yes. The term 'lewd act' under the California prostitution statute requires physical sexual contact between the prostitute and the customer. The court held that precedent, specifically the definition of 'lewd act' from People v. Hill and its subsequent citation in People v. Freeman, established that prostitution involves bodily contact between the service provider and the client. The statutory language, 'any lewd act between persons for money,' is ambiguous as to which persons must be involved. Applying the rule of lenity, which requires that ambiguous criminal statutes be interpreted in favor of the defendant, the court adopted the narrower definition requiring customer-prostitute contact. Because the undisputed evidence showed the dancers only touched each other and not the undercover officers, no 'lewd act' meeting the legal definition of prostitution occurred. Without the underlying crime of prostitution, the pimping and pandering charges against Wooten and Mendoza must fail.
Dissenting - Richli, Acting P. J.
No. The statutory definition of prostitution does not require physical contact between the prostitute and the customer. The dissent argued that the plain language of the statute, 'any lewd act between persons for money,' is not ambiguous and does not specify that one of those persons must be the customer. The majority's reliance on the contact requirement from People v. Hill was misplaced, as that part of the opinion was non-binding 'dictum' and was not adopted by the Supreme Court in People v. Freeman. The dissent contended that the majority's interpretation creates absurd public policy outcomes where paying for sex is not prostitution simply because the payor is not a physical participant. Furthermore, the dissent argued that pimping and pandering do not require a completed act of prostitution, and the evidence was sufficient to show the Flesh Club was a place where prostitution was encouraged or allowed, thereby supporting the charges against the managers.
Analysis:
This decision significantly narrows the legal definition of prostitution in California by establishing a bright-line rule requiring physical contact between the provider and the customer. It creates a legal distinction between direct prostitution and voyeuristic 'live sex shows,' potentially insulating establishments that offer such shows from pimping and pandering prosecutions. The ruling highlights the judiciary's application of the rule of lenity, placing the burden on the Legislature to explicitly broaden the statutory language if it intends to criminalize such conduct. This case serves as a key precedent for interpreting the scope of sex work-related statutes and the requirement for fair warning in criminal law.
