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Court of Appeal:
Prostitute Is Entitled to Restitution of Pilfered Earnings
Writ Granted Ordering Pimp to Pay $340,500 to Woman He Forced Into Prostitution
By a MetNews Staff Writer
The First District Court of Appeal on Friday granted a writ of mandate directing that a pimp be ordered to make restitution in the amount of $340,500, plus interest, to a woman he forced into prostitution and whose earnings he confiscated.
Solano Superior Court Judge William J. Pendergast had denied the request by the woman for restitution of her earnings on the ground that prostitution is a criminal offense. He explained:
“I can see the public policy arguments on both sides, and frankly, I think the public policy arguments favor H.B.’s position, but this Court is cognizant of the fact that I’m a judge, not a legislator, and public policy decisions are for the legislature, and I do not wish to cross the lines, as it relates to separation of powers.”
Reversal came in an opinion by Contra Costa Superior Court Judge Joni T Hiramoto, sitting on assignment to Div. Four.
The moneys were sought from Lamar Deshawn Hall, who had pled no contest to human trafficking and pimping. Pendergast did order restitution in the amount of $31,336 for Social Security payments Hall stole and for damage to the credit rating of the woman, identified as “H.B.”
Hiramoto’s Opinion
Hiramoto pointed to the wording of the restitution statute, Penal Code §1202.4, as it pertains, in subd. p., to persons convicted of Penal Code §236.1, human trafficking. It says:
“[T]he court shall, in addition to any other penalty or restitution, order the defendant to pay restitution to the victim in a case in which a victim has suffered economic loss as a result of the defendant’s conduct.”
The acting justice wrote:
“[B]ecause Hall took all of the money H.B. earned from the acts of prostitution Hall forced her to undertake, she “suffered economic loss as a result of the defendant’s conduct.”…Accordingly, the plain meaning of the statute strongly suggests that the trial court had a duty to ‘require that’ Hall pay ‘restitution to’ H.B. for that loss.”
Hall’s Argument
Hall pointed out that the subdivision goes on to say:
“In determining restitution pursuant to this section, the court shall base its order upon the greater of the following: the gross value of the victim’s labor or services based upon the comparable value of similar services in the labor market in which the offense occurred, or the value of the victim’s labor as guaranteed under California law, or the actual income derived by the defendant from the victim’s labor or services or any other appropriate means to provide reparations to the victim.”
Prostitution is not part of the “labor market,” he argued, and there is no value that is legally “guaranteed.” Hiramoto responded:
“But Hall’s conclusion does not follow from his premises. Even if it were true that in H.B.’s case there are no ‘similar services in the [legal] labor market’ and no guaranteed ‘value of the victim’s labor,’ that would only mean that those two methods of calculating restitution would yield a result of zero. Fortunately for H.B., the statute prescribes a third method based on ‘the actual income derived by the defendant from the victim’s labor or services.’ This was the method relied upon in H.B.’s request for restitution, and in the language of subdivision (p), ‘the greater of’ the methods for determining restitution.”
Two Footnotes
The jurist said in a footnote that “there is reason to doubt Hall’s assumption that this statutory language refers only to legal labor markets,” adding that “the legislative history of subdivision (p) suggests that forced prostitution was one of the kinds of labor the Legislature had specifically in mind.” In another footnote, she remarked:
“In holding that restitution is required for forced prostitution under the circumstances present here, we do not reach the question of whether the value of any other illegal activity constituting labor or services is similarly recoverable.”
The Office of Attorney General, arguing in favor of H.B.’s position as an amicus, said:
“In this case, the superior court misinterpreted the statute- creating an added requirement that the earnings cannot be the product of commercial sex. By definition, victims of sex trafficking are forced to engage in commercial sexual acts at the hands of their exploiter. The superior court’s interpretation swallows up the statute and misses its purpose: to allow human trafficking victims such as H.B. a chance to recover from the devastating physical, mental and financial harm caused by the defendant. The superior court’s interpretation would instead allow those convicted of sex trafficking to keep the money that they derived from financially exploiting victims, rather than justly compensating them.”
The case is H.B. v. Superior Court (Hall), A168069.
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