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Court of Appeal, Second District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Terry Wayne ROSS, Defendant and Respondent.


Decided: December 19, 1984

Robert H. Philibosian, Dist. Atty. of Los Angeles County, Donald J. Kaplan and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant. Wilbur F. Littlefield, Public Defender of Los Angeles County, Laurence M. Sarnoff, Damon Swank and John Hamilton Scott, Deputy Public Defenders, for defendant and respondent.


The People appeal from an order of the trial court granting defendants, who were convicted of pandering, probation in a manner contrary to the provisions of former Penal Code section 266i.1  We affirm.


Defendant-respondent Ross and his companion codefendant-respondent Story,2 persuaded two minor females to be prostitutes.   Both defendants were charged with two counts of pimping and two counts of pandering.   Following a plea of guilty by both defendants to one count of pandering, the remaining charges were dismissed.

At that time, section 266i read as follows:  “Except as provided in Section 1203.065 and notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person convicted under this section unless the person is required to serve a term of imprisonment in the state prison for three years as a condition of probation.” 3

The trial court found the section's mandatory imposition of a three-year prison term as a condition of probation to be disproportionate to the crime and thus in violation of the constitutional prohibition against cruel or unusual punishment.   It also found the section to be in conflict with section 1203.1 and an interference with the court's inherent authority to grant probation.

The court suspended criminal proceedings against both defendants and placed them on probation conditioned upon service of one year in county jail as to Ross and 180 days in county jail as to Story.   This appeal by the People followed.


1. People's Right to Appeal

In criminal cases, the People have no right of appeal except under the limited circumstances set forth in section 1238.   Relying on section 1238, subdivisions (a)(4), (5) and (6), the People argue the order granting probation is appealable.

Subdivision (a)(4) of section 1238 grants the People the right to appeal “[a]n order arresting judgment.”   A motion in arrest of judgment is an application on the part of the defendant, and is based on defects in the accusatory pleading.   Such a motion is clearly not involved in this case, and section 1238, subdivision (a)(4) is therefore not applicable.

Subdivision (a)(5) of section 1238 allows the People to appeal from “[a]n order made after judgment, affecting the substantial rights of the people.”   Here, the trial court suspended the imposition of sentence and granted probation.   Since no sentence was imposed, there was no judgment, and the People thus do not have the right to appeal under subdivision (a)(5).  (People v. La Fave (1979) 92 Cal.App.3d 826, 828–829, 156 Cal.Rptr. 63;  People v. Orrante (1962) 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480.)

 Subdivision (a)(6) of section 1238 provides that the People may appeal from “[a]n order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.”   In our view, this subdivision does not require “the procedural formalism of the trial court first imposing the punishment and then reducing it.”  (People v. Orrante, supra, 201 Cal.App.2d 553, 558, 20 Cal.Rptr. 480.)   Here, the trial court's grant of probation conditioned on spending one year in county jail was in direct violation of the statutory (section 266i) mandate permitting probation only if conditioned upon spending three years in state prison.

Since the effect of the court's order was to modify the verdict or finding 4 by reducing the statutorily required punishment, the order is appealable under subdivision (a)(6) of section 1238.  (People v. Orrante, supra, 201 Cal.App.2d 553, 20 Cal.Rptr. 480, 557–558.)

2. Cruel or Unusual Punishment

 The trial court erred in determining that a three-year minimum state prison confinement condition of probation is constitutionally invalid as constituting cruel or unusual punishment.

The trial court's finding that “in my opinion the last paragraph [of section 266i] is completely disproportionate to the crime.   Therefore, it's cruel or unusual” is totally unsupported and in excess of its authority.   A defendant must overcome a considerable burden in challenging a penalty as cruel or unusual.  (People v. Wingo (1975) 14 Cal.3d 169, 121 Cal.Rptr. 97, 534 P.2d 1001.)  “The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature.   Perhaps foremost among these are the definition of crime and the determination of punishment.  [Citations.]  While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’  [Citations.]”  (Id. at p. 174, fn. omitted, 121 Cal.Rptr. 97, 534 P.2d 1001.)

“Since reasonable men differ as to whether the punishment here is proportionate to the crime we must defer to the Legislature, for it has the ‘broadest discretion possible ․ in specifying punishment for crime.’ ”   (In re Foss (1974) 10 Cal.3d 910, 937, 112 Cal.Rptr. 649, 519 P.2d 1073.)   As pointed out by the California Supreme Court:  “The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will;  in appropriate cases, some leeway for experimentation may also be permissible.”  (In re Lynch (1972) 8 Cal.3d 410, 423, 105 Cal.Rptr. 217, 503 P.2d 921.)

The trial court's personal belief that the punishment or the requirement of serving three years is completely disproportionate to the crime and therefore cruel or unusual may be arguable.   As a trial court's act, its conclusion was error.   It was beyond the authority of the trial court to so declare for several reasons.   On the issue of proportionality of sentence to crime, it does not appear that the court took any evidence which it examined by the tests described below.   Nor did it make any review of the kind or of the matters and information described below.   Moreover, even under such tests, it does not appear that the Legislature exceeded its constitutional power to enact laws fixing punishment.

The Eighth Amendment to the United States Constitution commands that cruel and unusual punishment shall not be inflicted.   That command applies to the several states by operation of the Fourteenth Amendment.  (Robinson v. California (1952) 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758.)   Additionally, our state Constitution similarly provides:  “Cruel or unusual punishment may not be inflicted․”  (Cal. Const. art. I, § 17.)   In assessing whether punishment is cruel or unusual, the test is not whether a punishment is merely disproportionate, but rather whether it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”  (In re Lynch, supra, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 503 P.2d 921;  In re Foss, supra, 10 Cal.3d 910, 919, 112 Cal.Rptr. 649, 519 P.2d 1073.)

The Lynch court adopted a three-part analysis to aid in determining whether a certain penalty is cruel or unusual:  (1) evaluation of the dangerousness of the offense and the offender to society (id. at p. 425, 105 Cal.Rptr. 217, 503 P.2d 921);  (2) a comparison of “the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious” (id. at p. 426, 105 Cal.Rptr. 217, 503 P.2d 921;  emphasis in original);  and (3) “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.”   (Id. at p. 427, 105 Cal.Rptr. 217, 503 P.2d 921;  emphasis in original.)   (Recently reiterated in Solem v. Helm (1983) 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637.)

We consider first the nature of the offense in this case and its effect on society, as required under the first part of the Lynch analysis.   In doing so we must bear in mind that “[t]he legislation with which we are here concerned involves an attempt at the treatment of a sociological problem whose solution has puzzled the best thought of mankind from the beginning of organized society, ․” (People v. Barbiere (1917) 33 Cal.App. 770, 775, 166 P. 812.)  “The purpose of the anti-pandering statute (§ 266i) is to ‘․ cover all the various ramifications of the social evil of pandering and include them all in the definition of the crime, with a view of effectively combating the evil sought to be condemned.’  [Citations.]”  (People v. Fixler (1976) 56 Cal.App.3d 321, 327, 128 Cal.Rptr. 363.)   Moreover, “[t]he pandering statute and section 266h (pimping) are both designed to discourage prostitution by discouraging persons other than the prostitute from augmenting and expanding a prostitute's operation, or increasing the supply of available prostitutes.  [Citations.]”  (People v. Hashimoto (1976) 54 Cal.App.3d 862, 867, 126 Cal.Rptr. 848.)

A pander is a person who procures another person for the purpose of prostitution, or who by promises, threats or violence persuades or encourages another person to become a prostitute.  (§ 266i.)   As used in section 266i, prostitution means indiscriminate sexual intercourse between persons for money or other considerations.  (People v. Hill (1980) 103 Cal.App.3d 525, 534, 163 Cal.Rptr. 99.)   Pandering is a social evil.  (People v. Fixler, supra, 56 Cal.App.3d 321, 327, 128 Cal.Rptr. 363.)   The pander commonly preys on very young women.   Many in this group have experienced difficulties in the home, in school or on the job, or have become dependent on drugs, making them particularly vulnerable to the pander's promises of easy money.  (Jennings, The Victim as Criminal:  A Consideration of California's Prostitution Law (1976) 64 Cal.L.Rev. 1235, 1252.)   In this case, the two women involved were almost but not yet 18 years old.   Defendant had met them at the Greyhound bus station in Long Beach.   He described them as “dirty and hungry” at the time, and successfully persuaded them to become streetwalkers, promising them nice clothes and 40% of the earnings.

Mary Lindsay, who served as Superintendent of New York City's House of Detention for Women from 1964 to 1968, describes the typical prostitute as immature, insecure and frightened.  (Lindsay, Prostitution—Delinquency's Time Bomb (1970) 16 Crime & Delin. 151, 155.)   It is not uncommon for a pimp to get his streetwalkers (victims in reality) addicted to drugs to prevent them from escaping his sphere of influence.  (Id. at pp. 152–153;  Jennings, supra, at p. 1244.)   Even if the prostitutes escape drug addiction, once they have an arrest record it becomes much more difficult to leave their world in view of problems persons with arrest records have in finding legitimate employment, thus inhibiting rehabilitation.  (Id. at p. 1247.)   Additionally, commercialized sexual activity adversely affects the community.   It facilitates the spread of sexually transmitted diseases.   And “[t]he environment in which street prostitution in particular occurs appears to be conducive to other kinds of criminal behavior, perhaps because prostitution itself is a criminal offense.”  (Id. at pp. 1243–1244.)

Considering the serious consequences which the crime of pandering has not only on those procured as prostitutes but also on the community, the three-year minimum prison term is not so unduly harsh as to shock the conscience.

We now consider the second aspect of the Lynch analysis:  a comparison of the penalty for pandering with the penalty imposed in this state for other crimes which defendant-respondent has suggested.   The punishment for rape has a range of three, six or eight years.  (§ 264.)   Though pandering also carries a three-year minimum sentence, its middle range penalty is four years and the upper range six years, in both instances less than those imposed for rape.   Robbery perpetrated in an inhabited dwelling house carries the same penalty as that imposed for pandering.   Both have a punishment range of three, four or six years (§§ 213.5, 266i).   But armed robbery carries a minimum penalty of four years (§§ 213, 12022.5), while setting off an explosive with intent to commit murder carries a minimum of a five-year term (§ 12308).   Defendant did not show and has not shown here that pandering is punished disproportionately more severely in California than other, more serious, offenses.

The third and last step in the Lynch analysis is to compare the challenged penalty with the punishment prescribed in other states for the same offense.   Defendant argues that since he did not use force and did not have a prior record, his conduct would have constituted only a misdemeanor in a number of states, with maximum punishments ranging from 30 days in jail in South Carolina (CLSC 16–15–110), to two years in custody in North Carolina (GSNMC 14–204).   The fact that a few states choose to treat the offense of pandering as a misdemeanor under certain circumstances is not dispositive of the constitutional issue before us.  “Lynch does not require or advise that we conform ‘our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’ ”  (In re Orosco (1978) 82 Cal.App.3d 924, 930, 147 Cal.Rptr. 463.)   Although pandering occurs in all states, the severity of the problem may differ from state to state, thus calling for a different solution by the Legislature.  (Ibid.)  It may be judicially noted that pandering is an especially serious problem in California, particularly Southern California, where the proximity of the entertainment and other seemingly “glamorous” industries and lifestyles attract many young persons, whose needs for shelter and food make them vulnerable to exploitation by panders.

The summary of minimum punishments furnished by the People shows that Indiana imposes a minimum sentence of six years for pandering, while Delaware and New Jersey impose a three-year minimum prison term for the offense, as California does.   A number of states impose a two-year minimum sentence, while others require service of a one-year minimum sentence, with still others imposing a minimum sentence ranging from 60 days to 6 months.   Though in this regard California may be at the upper end of the spectrum, its three-year minimum sentence is by no means extreme in comparison to the minimum sentence imposed in other jurisdictions.5

We conclude that the three-year minimum prison term for pandering does not constitute cruel or unusual punishment.

 We also conclude the trial court exceeded its jurisdiction in substituting its judgment for that of the Legislature as to the appropriateness of the mandatory three-year-length of imprisonment.   A trial court “must comply with the statutorily mandated sentence and the trial court has no discretion to ‘make its own ad hoc adjustment to fit what it perceives as equity and justice.’  [Citation.]  This is so because the Legislature has the sole authority to determine the appropriate punishment for criminal behavior.  [Citation.]”  (People v. Jackson (1981) 121 Cal.App.3d 862, 176 Cal.Rptr. 166.)

Although the Eighth Amendment prohibits punishment which either involves the unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime, Eighth Amendment judgments should neither be nor appear to be merely the subjective views of judges.  (Rhodes v. Chapman (1981) 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59;  Rummel v. Estelle (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382.)

Even as a reviewing court in discharging whatever oversight responsibility may be required of us under the Eighth Amendment, we cannot assume that the Legislature did not consider and weigh the competing considerations in fixing penalties.  (Rhodes v. Chapman, supra, 452 U.S. at p. 352, 101 S.Ct. at p. 2402.)

At bench the trial court did not identify any facts, policies, reasons, historic precedents, arguments or legislative studies to support its conclusion that three years in prison was too long or grossly disproportionate.   Without some studies and some solid and supported reasons, the declaration is merely one judge's personal view of what is too long.   The court here reviewed nothing which the Legislature had before it or considered when the Legislature enacted section 266i.   It thus erred and it failed to follow the presumption that the Legislature did study the problem and arrived at its best judgment after such study.  (See Rhodes v. Chapman, supra, at p. 367, 101 S.Ct. at p. 2410 (conc. opn. of Brennan, J.).)

3. Conflict Between Statutes

When defendant Ross was sentenced, section 266i permitted a trial court to grant probation but only on the condition that the defendant serve a three-year prison term.   The amount of time required by the condition was the same as the low term in the case of one sentenced without probation under the same section.   This was an unusual feature.

At the probation and sentencing hearing, the trial court stated;  “․ the section as drafted eliminates the discretion of the court in giving an appropriate sentence for the particular crime” and is “․ in conflict with 1203.1 which unequivocally states if you put a person on probation, that person can be given up to one year as a condition of probation.”

Under section 1203.1, a trial court has the power to impose conditions of probation.   As a condition of probation, the trial court “may imprison the defendant in the county jail for a period not exceeding the maximum time fixed by law in the instant case․”  (§ 1203.1.)   Section 19a provides in pertinent part that no person shall be sentenced to confinement in the county jail for more than one year as a condition of probation upon conviction of either a felony or a misdemeanor.   Read together, sections 1203.1 and 19a place an unqualified one-year ceiling upon a county-jail commitment as a condition of probation in felony cases.  (People v. Bailey (1983) 140 Cal.App.3d 828, 830, 189 Cal.Rptr. 918.)

The law at issue in this case, however, did not abrogate a trial court's statutorily-authorized discretion under section 1203 whether or not to grant probation.   The problem arises in the challenged law's mandate that probation be conditioned upon a three-year prison term.

As to the three-years imprisonment term of probation, the trial judge stated:  “․ This case looking at the record or lack of record of the defendants would not warrant a state prison sentence, in my judgment․”

Irrespective of the trial judge's personal view and in light of the legislative mandate expressed in the clear and unequivocal words of the statute, 266i, itself that “NOTWITHSTANDING ANY OTHER PROVISION OF LAW” probation be conditioned upon a three-year prison term, it is arguable whether the trial court was correct in declaring any conflict and thereby granting probation not conditioned upon such prison term.  (Emphasis added.)

Admittedly, the trial court's concern is understandable in view of the fact that under the former section here on review the three-year imprisonment condition of probation was the same as the amount of time which a defendant would be required to serve if probation were denied and he was sentenced.   But that feature did not necessarily create any conflict between the several statutes or any ambiguity in the wording of section 266i the controlling statute as it then read.   Even if some difference, in effect or purpose, between the two forms of confinement, i.e., whether by reason of probation or by reason of sentence, cannot be discerned by us or by the trial court and even if the three-year similar requirement as a condition of probation would seem to serve no public policy or benefit to the defendant, it is questionable whether the trial court was empowered to ignore the statute or treat it as a mistake or redundancy.

Provided it does not impose cruel or unusual punishment, and creates no clear conflict, the Legislature's decision, whether wise or foolish, as to how to deal with a particular crime is an exercise of its exclusive constitutional power.   Within this described scope the Legislature in the exercise of that power may limit the power of the trial court to grant or deny probation and may establish the conditions thereof.

Notwithstanding the foregoing general observations, we conclude that with reference to the probation aspects of the statute here involved, it is not necessary for us to resolve any questions of constitutionality, conflict or interference with the trial court's discretion nor is a reversal warranted in the matter before us for the following reasons.

At oral argument, the Deputy State Public Defender mentioned, in response to our question, that based on information available to him this appears to be the only case which arose under the law at issue here.   The People did not contest this.   The law in question was on the books barely six months when it was replaced with a new law prohibiting any grant of probation to someone convicted under section 266i.   As indicated, we recognize the power to define crimes and fix penalties is vested exclusively in the Legislature.  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617.)   Within the exercise of that power is the power to declare that in certain cases probation may not be granted.  (People v. Tanner (1979) 24 Cal.3d 514, 519, fn. 3, 156 Cal.Rptr. 450, 596 P.2d 328.)

 We do not resolve the issue whether the challenged law was a valid exercise of the Legislature's power to fix penalties, or whether, in allowing the trial court to grant probation only if conditioned upon a mandatory three-year prison term, it constituted an impermissible encroachment upon the trial court's traditional powers.   As noted earlier, the challenged law was in effect for only a very short period, and this case appears to have been the only one arising under that law.   Any holding as to the validity of the challenged law would therefore establish no precedent for future cases.   Defendant has already served one year in the county jail as a condition of probation.   It would seem that by now he has adjusted his life to the terms of probation including the punishment assessed.   Even if we were to agree with the People that the probation was unauthorized under the law, to resentence defendant to a three-year prison term under the challenged law, under the unique circumstances of this case, would be unnecessarily harsh.  (See People v. Tanner (1979) 24 Cal.3d 514, 521–522, 156 Cal.Rptr. 450, 596 P.2d 328.)

Accordingly, the order granting probation is affirmed.


1.   Unless otherwise indicated, all statutory references are to the California Penal Code.   Also, unless otherwise indicated, all references to “section 266i” are to the former section 266i as it read prior to the 1983 amendment.

2.   Codefendant Story died after the People's appeal was filed.   As to her, therefore, the appeal is moot.

3.   Effective June 14, 1983, sections 266i and 1203.065 were amended by deleting from section 266i the probationary-grant provision and adding to section 1203.065 a provision prohibiting probation to anyone convicted under section 266i.

4.   A plea of guilty is the equivalent of a verdict of a jury, rendering it unnecessary for the trial court to make any finding.   (People v. Orrante, supra, 201 Cal.App.2d 553, 557, 20 Cal.Rptr. 480;  People v. McDaniels (1958) 165 Cal.App.2d 283, 285, 331 P.2d 450.)

5.   The People's summary shows that with respect to the maximum punishment for pandering not involving force, which is the offense here, 24 states impose a penalty ranging from 18 months to six years, with the remainder of the states imposing a maximum sentence ranging from seven to twenty years.   The maximum punishment in California is six years.

BEACH, Associate Justice.

ROTH, P.J., and GATES, J., concur.