THE PEOPLE v. TAYLOR TOUSSAIN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. TAYLOR TOUSSAIN, Defendant and Appellant.

B221370

Decided: January 20, 2011

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Taylor Toussain was convicted, following a jury trial, of two counts of pandering in violation of Penal Code 1 section 266i, subdivision (a)(1).   Following a jury trial waiver by appellant, the trial court found true the allegations that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b).  The court sentenced appellant to a total of nine years, four months in state prison, consisting of the upper term of six years for the count 1 pandering conviction plus one year and four months for the count 2 pandering conviction plus two one-year enhancement terms for the prior prison terms.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his convictions.   We affirm the judgment of conviction.

Facts

On September 23, 2009, Los Angeles County Sheriff's Deputies Angela Pulido and Laura Morales were working undercover in Lynwood, posing as prostitutes.   They were wearing hidden microphones.   Appellant approached the women as they stood in front of the Flamingo Inn on Long Beach Boulevard.   He said, “Hey, baby.”   He told Deputy Pulido that he wanted to teach her.   She asked, “Teach me what?”   Appellant replied that he wanted to take her to Anaheim and make her money.   He stated that the sky was the limit.   Deputy Pulido asked appellant how he was going to make her money.   Appellant said that he would be her “daddy.”   He told her that if she got into his car he would show her how.   Deputy Pulido told him to stop wasting her time.   Appellant drove away.

Appellant returned about five minutes later.   He told Deputy Pulido that she was too good to leave out there.   Deputy Pulido asked appellant what he wanted.   Appellant said that he wanted to be her pimp.   She asked him to repeat his statement.   Appellant said, “I want to be your pimp.”   Appellant told the deputies that he did not deal, that he had his hundred percent but that he would take care of them.   Deputy Pulido later testified that taking care of them meant that he would provide shelter, clothing, clients and protection from danger.   Deputy Morales gave similar testimony.   Deputy Morales asked what they had to do.   Appellant told the deputies to get in the car and he would show them.   Deputy Morales asked appellant what he wanted.   He replied, “I want to make you money.   Get in the car.”   The deputies did not get in the car.   Appellant kept telling them to get in the car.   When they did not, he left.

Appellant returned about ten minutes later.   He said, “You know, I have to come back, baby.   You're too good to be out here on the street.   I'll make you money.”   Deputy Morales asked, “How are you going to make me money?   What do you want me to do?”   Appellant replied, “I'm going to show you how to suck dick and I'm going to show you how to play the game right.”   He again stated that he would take care of the women.   Appellant was then arrested.

Los Angeles County Sheriff's Detective Kathleen Miller, who worked in the Vice unit and assisted the deputies on the above-described operation, testified at trial.   Lynwood is a high prostitution area.   She testified that pimps in that area usually drop off girls and watch from a distance to avoid notice by the police.

In response to a hypothetical, Detective Miller opined that if an individual approached two women on the street, asked them to work for him, indicated that he wanted to be their pimp, described a sex act he would like them to perform and stated that he would get a hundred percent but that he would take care of the women, the individual would be soliciting the women to work for him as prostitutes.   In response to a second hypothetical, Detective Miller opined that the following actions would be consistent with pandering for purposes of prostitution:  An individual leaves a location and returns, tells the women that they are too good to leave there, tells them he wants them to get into his car, promises to take care of them, leaves when the women do not get in the car, returns and repeats his statements and actions and tries to induce them to work for him.

Discussion

Appellant contends that there is insufficient evidence to support his conviction for pandering, and that he is at most guilty of attempted pandering.   We do not agree.

Appellant was charged with violating subdivision (a)(1) of section 266i, which provides in pertinent part:  “[A]ny person who does any of the following is guilty of pandering, a felony, ․:(1) Procures another person for the purpose of prostitution.”   He contends that the word “procure” requires successfully enlisting someone for the purpose of prostitution.   He points out that the undercover police officers never accepted his proposal and had no intention of working for him as prostitutes and so he did not succeed in enlisting them as prostitutes.2

The pandering statute sets out a number of ways that a defendant can commit the offense of pandering.  “The subdivisions of the [pandering] statute do not state different offenses but merely define the different circumstances under which the crime of pandering may be committed.  ‘The commission of any one of the acts described in the foregoing code section constitutes the offense of pandering;  may involve the commission of other acts separately described therein;  and, for this reason, a description of the one act may include the others.  [Citation.]’  [Citation.]”  (People v. Lax (1971) 20 Cal.App.3d 481, 486.)

As relevant here, subdivision (a)(1) uses the phrase “procures another person for purposes of prostitution,” while subdivision (a)(2) provides that a person is guilty of pandering if he “[b]y promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute.” (§ 266i, subd. (a)(2).)   The term “procure” as used in the pandering statute “necessarily implies the use of persuasion, solicitation, encouragement and assistance in achieving the unlawful purpose.”  (People v. Montgomery (1941) 47 Cal.App.2d 1, 12.)   Thus, if a defendant is charged with procuring, “he may be found guilty of such procurement if it is properly established that he either assisted, induced, persuaded or encouraged [a person]” to become a prostitute.  (Ibid.)

The jury was instructed under the Montgomery court's expansive view of the meaning of procurement that appellant was guilty of pandering if he “persuaded Deputy Pulido and Deputy Morales to be a prostitute” and had the requisite intent.  (Italics added.)

“[S]uccess is not a necessary element of the offense proscribed by the word ‘encourage’ as used” in the pandering statute.  (People v. Bradshaw (1973) 31 Cal.App.3d 421, 425;  People v. Hashimoto (1976) 54 Cal.App.3d 862, 866 [“neither success nor consummation of the proposal was a necessary element of a violation of the pandering statute”].)

Similarly, success is not required when a defendant “persuades” another to become a prostitute.   The term “persuade” is defined as “1. To move by argument, entreaty, or expostulation to a belief, position, or course of action. 2. To plead with.”  (Merriam Webster's Collegiate Dict. (10th ed.1995) at p. 868.)   Pleading does not require success.

Appellant contends that Bradshaw, Montgomery, Hashimoto and related cases are wrongly decided, and that the correct understanding of section 266i can be found in People v. Wagner (2009) 170 Cal.App.4th 499.   The actual holding of Wagner has no application to this case, since it involves a woman who was already a prostitute.  (Id. at p. 502.)   We do not find the reasoning of Wagner persuasive, particularly when compared to the well-established line of cases cited in this opinion.

As appellant acknowledges, the evidence is sufficient to show that he made statements to the deputies with the intent that they become prostitutes.   Since success is not required, the fact that the women were undercover officers does not make commission of the crime an impossibility and thereby reduce the offense to an attempted crime.   The conviction stands.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The related issue of whether a defendant violates section 266i by encouraging an undercover police officer to become a prostitute is currently under review by the California Supreme Court.  (People v. Zambia (2009) 173 Cal.App.4th 1221, review granted August 19, 2009, S173490.).  FN2. The related issue of whether a defendant violates section 266i by encouraging an undercover police officer to become a prostitute is currently under review by the California Supreme Court.  (People v. Zambia (2009) 173 Cal.App.4th 1221, review granted August 19, 2009, S173490.)

TURNER, P. J. KRIEGLER, J.