Wednesday, February 15, 2006
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C.A. Clarifies Meaning of ‘Acts in Furtherance’ of Prostitution
Words Alone May Be Sufficient to Establish Requisite Intent, Justices Rule
By KENNETH OFGANG, Staff Writer/Appellate Courts
Mere words may constitute an “act in furtherance” of prostitution, the Court of Appeal for this district ruled yesterday.
Div. Seven, in an opinion by Justice Laurie Zelon, denied a petition for writ of mandate or prohibition brought by a woman arrested after she allegedly offered to exchange sex for money at the Balboa Therapy Center in Van Nuys. The would-be customer was an undercover police officer.
The defendant, Jeongrye Kim, was accused of violating Penal Code Sec. 647, which makes it a misdemeanor to solicit, to agree to engage in, or to engage in an act of prostitution. The statute provides in part that a “person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution.”
The Los Angeles City Attorney’s Office charged in its complaint that Kim “agree[d] to engage in an act of prostitution which acts in furtherance, taken individually or together, consisted of the following acts: Defendant placed her right index finger on her mouth and told Officer Gutierrez to be quiet when he asked her if he could have sex with her for a little more money; raised her index finger and said ‘one’ after the officer asked if he could have sex for sixty dollars; stated ‘yes’ after the officer pointed to her groin area and asked if she was clean ‘down there[;]’ responded ‘yes’ when the officer asked whether she had a condom; and instructed the officer to take off his clothes.”
Demurrer Overruled
Kim demurred, contending that none of the conduct alleged in the complaint constituted an act in furtherance of prostitution with the meaning of the statute. Los Angeles Superior Court Commissioner Dennis Mulcahy overruled the demurrer and the Superior Court Appellate Division denied a petition for writ of mandate or prohibition, but the Court of Appeal agreed to hear the case on the merits.
The panel concluded that the trial judge and the Appellate Division were correct in their interpretation of the statute. Zelon explained that the language at issue was added to the statute in 1986, at the request of Los Angeles officials concerned that California law at the time barred prostitution and solicitation, but not agreements to engage in lewd acts for money.
“[S]treet-wise prostitutes,” an Assembly committee reported, were exploiting that omission by waiting for the would-be customer to propose a transaction, knowing that they could not be arrested for solicitation and that officers would not actually engage in sex.
In criminalizing agreements to engage in prostitution, however, the Legislature sought to deter false arrests and entrapment issues by including the acts-in-furtherance requirement, Zelon explained.
Legislative History
The justice reasoned that since the legislative history cites the law of attempt and conspiracy as models for the statute, and since one may be convicted of an attempt or of participating in a conspiracy based solely on words, lawmakers must have intended that words alone be sufficient to constitute an act in furtherance.
“Not all statements will suffice; to constitute an act that satisfies the statutory requirement, the statements must be unambiguous and unequivocal in conveying that the agreed act of prostitution will occur and move the parties toward completion of the act,” the justice declared.
The requirement of an unambiguous and unequivocal verbal agreement to engage in prostitution, the justice went on to say, was met once Kim told the officer to take his clothes off.
Zelon commented in a footnote:
“Although the amended complaint alleged other, earlier statements as additional acts in furtherance, we find those statements too ambiguous to meet the standard we apply. Because multiple acts are not required, however, the demurrer was properly overruled.”
The case was argued on appeal by Larry P. Adamsky for the defendant and Deputy City Attorney Renee Rich for the prosecution.
The case is Kim v. Superior Court (People), B15850.
Copyright 2006, Metropolitan News Company