## Facts

- Brent Howard Wooten and Daniel Robert Mendoza managed an adult entertainment club with a main room for nude dancing and a separate VIP room with semi-private booths.
- Undercover officers visited the club several times, paid a set fee to enter VIP booths with two dancers, and observed the dancers perform sexual acts on each other for several minutes.
- The evidence showed the dancers did not sexually touch the paying customer during the VIP booth sessions; the paid experience was to watch the dancers’ conduct.
- On one occasion, a dancer offered an officer a manual sex act, but there was no evidence club management knew of the offer or that such offers were common.
- After the investigation, the prosecution charged Wooten and Mendoza with pimping and pandering based on the VIP booth activity as the alleged underlying prostitution.

## Issues

1. Whether the VIP booth conduct constituted “prostitution” when the dancers engaged in sexual conduct only with each other and had no physical sexual contact with the paying customer.
2. If there was no prostitution, whether the evidence could support pimping and pandering charges that depend on an underlying act of prostitution.

## Decision

- The Court of Appeal granted writ relief and directed the trial court to grant defendants’ Penal Code § 995 motion to set aside the information.
- The court held the statutory definition of prostitution, for purposes of pimping and pandering, requires physical contact between the prostitute and the customer.
- Because the evidence showed no physical contact between dancers and customer, there was no underlying prostitution.
- Absent prostitution, the pimping and pandering counts lacked sufficient evidentiary support and could not proceed.
- The court did not decide defendants’ separate argument concerning whether undercover officers lacked the subjective intent for sexual arousal or gratification.

## Legal Principles

- For purposes of California’s pimping and pandering framework, “prostitution” requires physical sexual contact between the prostitute and the customer in exchange for money.
- A paid sexual performance where the customer pays to watch participants engage in sexual acts with each other, without sexual contact with the customer, does not by itself constitute prostitution.
- Pimping and pandering are derivative offenses; without evidence of an underlying act of prostitution, charges for pimping and pandering cannot be sustained.
- When the prosecution’s probable cause showing for pimping and pandering rests solely on conduct that does not meet the legal definition of prostitution, the information must be set aside under Penal Code § 995.

## Conclusion

The court required dismissal of pimping and pandering charges because the paid VIP booth performances involved no sexual contact between dancers and customer, and thus did not constitute prostitution as required to support derivative pimping and pandering offenses.


Wooten v. Superior Court, 93 Cal. App. 4th 422, 113 Cal. Rptr. 2d 195 (Ct. App. 2001)