Kim v. Superior Court

• Decision Date: 14 February 2006
• Docket Number: No. B185850.,B185850.
• Citation: 136 Cal.App.4th 937,39 Cal.Rptr.3d 338
• Court: California Court of Appeals
• Parties: Jeongrye KIM, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest.

39 Cal.Rptr.3d 338

136 Cal.App.4th 937

Jeongrye KIM, Petitioner, v.The SUPERIOR COURT of Los Angeles County, RespondentThe People, Real Party in Interest.

No. B185850.

Court of Appeal, Second District, Division 7.

February 14, 2006.

As Modified February 23, 2006.

Law Offices of Larry P. Adamsky and Larry P. Adamsky, Tarzana, for petitioner.

No appearance for Respondent.

Rochard J. Delgadillo, City Attorney, Debbie Lew, Managing Assistant City Attorney, and Renee Rich, Deputy City Attorney, for Real Party in Interest.

ZELON, J.

In this petition for writ of mandate or prohibition, we hold that words alone can constitute an act in furtherance of an agreement to engage in an act of prostitution, providing that the statements made are unequivocal and unambiguous in moving the parties toward the agreed act.Finding that to be the case here, we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 2005, Los Angeles Police Department undercover officers arrested petitionerJeongrye Kim for agreeing to engage in an act of prostitution at the Balboa Therapy Center in Van Nuys.

On June 24, 2005, on behalf of real partythe People of the State of California, the Los Angeles City Attorney charged Kim with a misdemeanor violation of disorderly conduct, commonly known as prostitution.(Pen.Code,¹ § 647, subd. (b), hereafter § 647(b).).The complaint pled that Kim had "agree[d] to engage in an act of prostitution."

On June 29, 2005, Kim demurred on the ground that the complaint failed to plead the specific act in furtherance of the agreement to engage in prostitution, denying her due process of law.(§§ 647(b),952and1004, subds. (2), (4), (5).)

On July 21, 2005, the City Attorney filed an amended complaint, alleging that Kim had "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."

That same day, after hearing argument, the respondentSuperior Court overruled Kim's demurrer.The court held that "[w]ords in conspiracy and agreements can always be in furtherance" of the agreement to engage in prostitution.

On August 4, 2005, Kim petitioned for a writ of mandate or prohibition and a request for an immediate stay before the Appellate Department of the Superior Court.On August 17, 2005, the Appellate Department denied the petition and request for stay.

Kim timely filed the instant petition for a writ of mandate or prohibition.We issued an order to show cause.

DISCUSSION

I.STANDARD OF REVIEW

This case presents an issue of law: whether words alone can satisfy the "actsin furtherance" requirement of the statute.We review matters of statutory construction de novo.(Carver v. Chevron U.S.A., Inc.(2002)97 Cal.App.4th 132, 142, 118 Cal.Rptr.2d 569;Baker-Hoey v. Lockheed Martin Corp.(2003)111 Cal.App.4th 592, 596, 3 Cal.Rptr.3d 593;see alsoSmith v. Rae-Venter Law Group(2002)29 Cal.4th 345, 357, 127 Cal.Rptr.2d 516, 58 P.3d 367[independent review appropriate where issue involves the proper interpretation of a statute and its application to undisputed facts].)

The objective of statutory interpretation is to ascertain and effectuate legislative intent.The first step in determining that intent is to scrutinize the actual words of the statute, giving them a plain and common sense meaning.(Hughes v. Board of Architectural Examiners(1998)17 Cal.4th 763, 775, 72 Cal.Rptr.2d 624, 952 P.2d 641.)If there is no ambiguity in the statutory language, a court must presume that the Legislature meant what it said, and the plain meaning of the statute governs.(Lennane v. Franchise Tax Bd.(1994)9 Cal.4th 263, 268, 36 Cal.Rptr.2d 563, 885 P.2d 976.)

Only when the statutory language is ambiguous and susceptible to more than one reasonable interpretation do "we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.[Citations.]"(Nolan v. City of Anaheim(2004)33 Cal.4th 335, 340, 14 Cal.Rptr.3d 857, 92 P.3d 350.)"[A] subsequent expression of the Legislature as to the intent of [a] prior statute, although not binding on the court, may properly be used in determining the effect of a prior act."(California Emp. etc. Com'n v. Payne(1947)31 Cal.2d 210, 213-214, 187 P.2d 702.)

Furthermore, we must select a construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.(Torres v. Parkhouse Tire Service, Inc.(2001)26 Cal.4th 995, 1003, 111 Cal.Rptr.2d 564, 30 P.3d 57.)"And, wherever possible, `we will interpret a statute as consistent with applicable constitutional provisions, seeking to harmonize Constitution and statute.'[Citation.]"(People v. Superior Court(Zamudio)(2000)23 Cal.4th 183, 193, 96 Cal.Rptr.2d 463, 999 P.2d 686.)

II.AN ACT IN FURTHERANCE OF AN AGREEMENT TO ENGAGE IN AN ACT OF PROSTITUTION CAN BE VERBAL

At issue is the interpretation of "act in furtherance" under section 647(b).Kim contends that as a matter of law her "utterances" cannot constitute an "act in furtherance" of an agreement to engage in an act of prostitution.She asserts that both legislative intent and case law support this view.We disagree.

A.Legislative History

Section 647 provides: "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶] . . . [¶](b) Who solicits or who agrees to engage in or who engages in any act of prostitution.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. . . ."(§ 647(b).)

The provision expanding section 647(b) to permit conviction for an agreement to engage in an act of prostitution was added by the Statutes of 1986, chapter 1276, section 1, pages 4457-4459(Sen. BillNo. 2169).Senator David Roberti sponsored the bill on behalf of the City of Los Angeles.(Assem. Com. on Pub. Safety, Analysis on Sen. BillNo. 2169 (1985-1986 Reg. Sess.)as amendedAug. 11, 1986, p. 1.)At the time of the bill's introduction, unlike 24 other states with prohibitions against agreements to engage in lewd acts for money, California law barred only prostitution and its solicitation.(Ibid.)According to the proponent, "most prostitutes kn[e]w that if they wait[ed] until a customer mention[ed] money or sex, and then simply approve[d] the conditions, they[could not] be found guilty of soliciting prostitution.Consequently, street-wise prostitutes rarely `solicit[ed]' prostitution, and undercover officers posing as customers often [were] unable to make arrests for prostitution."(Ibid.)The legislation was, therefore, "intended to give police another enforcement tool" on "prostitution laws that [were] difficult to enforce."(Ibid.)

Senate Bill 1276 initially prohibited only the agreement to engage in an act of prostitution.(Sen. BillNo. 2169 (1985-1986 Reg. Sess.) as introduced Feb. 20, 1986.)To minimize false arrests, entrapment and use of the entrapment defense, however, the bill was amended prior to passage to include the language requiring an act in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act.(Sen. BillNo. 2169 (1985-1986 Reg. Sess.)as amendedAug 11, 1986; Sen Com. on Judiciary, Analysis on Sen. Bill. 2169 (1985-1986 Reg. Sess.) as introduced Feb. 20, 1986, pp. 4-5;Assem. Com. on Pub. Safety, Analysis on Sen. BillNo. 2169 (1985-1986 Reg. Sess.) as introduced June 30, 1986, pp. 2-3;Assem. Com. on Pub. Safety, Analysis on Sen. BillNo. 2169 (1985-1986 Reg. Sess.)as amendedAug. 11, 1986, pp. 3-4.)

In developing the act in furtherance requirement under section 647(b), the Legislature did not precisely define what such an act would be.It neither expressly included nor excluded verbal acts.The legislative reports, however, referred both to the law of attempt (§ 21a) and conspiracy (§§ 182,184) for general guidance.(Assem. Com. on Pub. Safety, Analysis on Sen. BillNo. 2169 (1985-1986 Reg. Sess.)as amendedAug. 11, 1986, pp. 2-3.)The Legislature noted that "the act must be in furtherance of an act of prostitution, itself, i.e., a lewd act."(Id. at p. 3.)It contemplated whether the following acts would be in furtherance of violating section 647(b): "driving around the block, after an observed conversation with a suspected prostitute,""act directly lead[ing] to sexual contact, e.g., undressing," and "transfer of money."(Ibid.)The legislative analysis did, however, state that "[u]nder this bill, overt acts in furtherance of prostitution (e.g., entering a car) must be committed following the agreement.Thus, acts committed before final agreement as to the price for or the nature of the lewd act may not give rise to prosecution."(Ibid.)

B.Case Law

In Gaylord v. Municipal Court(1987)196 Cal.App.3d 1348, 242 Cal.Rptr. 486(Gaylord), the first decision to interpret the language at issue, we held that section 647(b)"clearly makes an `act in furtherance' an essential element of the offense of...