I respectfully dissent. The Legislature has broadly defined “prostitution” as “any lewd act between persons for money or other *439consideration,” (Pen. Code, § 647, subd. (b)) without specifying who the persons must be. The majority concludes, based on a dictum in People v. Hill (1980) 103 Cal.App.3d 525 [163 Cal.Rptr. 99], that this language is ambiguous. The “rule of lenity,” however, applies only “[w]hen ... the language of a penal law is reasonably susceptible of two interpretations . . . .” (People v. Robles (2000) 23 Cal.4th 1106, 1115 [99 Cal.Rptr.2d 120, 5 P.3d 176], italics added.) One errant dictum doth not an ambiguity make.
I would hold that the statutory definition of “prostitution” does require a sexual contact between at least two people, but not necessarily between the prostitute and the customer. In response to defendants’ other contentions, I would also hold that the pimping and pandering statutes do not necessarily require a completed act of prostitution. The pimping statute can be satisfied by proof that the defendant derived support from money paid for another’s agreement to perform an act of prostitution. Here, regardless of Officer Valdivia’s actual intent, there was sufficient evidence that he paid the women for agreeing to perform an act of prostitution. Similarly, the pandering statute can be satisfied by proof that the defendant caused an inmate of a place where prostitution is encouraged or allowed to remain therein. Once again, regardless of Officer Valdivia’s actual intent, there was sufficient evidence that prostitution was allowed or encouraged in the Flesh Club.
I need not repeat here the majority’s generally excellent summary of the facts. I merely add that, no matter what the women whom the majority describes as “dancers” did on the main stage, their activities once inside the booth were not remotely terpsichorean. These included oral copulation, digital vaginal penetration, and vaginal penetration with a vibrator. Also, there was evidence that dancers at the Flesh Club sometimes made sexual contact with other customers and that defendants knew dancers sometimes made sexual contact with customers. Indeed, the dancer whose nom de guerre was “Malibu” offered to give Officer Aranda a “hand job,” but he declined.
I
The Definition of “Prostitution” for Purposes of Pimping and Pandering
A. Standard of Review.
It should be borne in mind that defendants seek review of the trial court’s refusal to set aside the information. “Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. *440[Citation.]” (People v. Lewis (1990) 50 Cal.3d 262, 289 [266 Cal.Rptr. 834, 786 P.2d 892].) “ ‘ “ ‘Evidence that will justify a prosecution need not be sufficient to support a conviction. . . . An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.]’ ” ’ [Citations.]” (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1027 [13 Cal.Rptr.2d 551, 839 P.2d 1059], quoting People v. Uhlemann (1973) 9 Cal.3d 662, 667 [108 Cal.Rptr. 657, 511 P.2d 609], quoting Taylor v. Superior Court (1970) 3 Cal.3d 578, 582 [91 Cal.Rptr. 275, 477 P.2d 131], quoting Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197].) I agree with the majority, however, that we review questions of statutory interpretation de novo.
B. The Touching Requirement.
My analysis, like the majority’s, begins with the seminal case (no pun intended) of People v. Freeman (1988) 46 Cal.3d 419 [250 Cal.Rptr. 598, 758 P.2d 1128], There, the Supreme Court noted that People v. Hill, supra, 103 Cal.App.3d 525 had defined “lewd act” for purposes of prostitution so as to require that “ ‘the genitals, buttocks, or female breast, of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.’” (Freeman, supra, at p. 424, italics omitted, quoting Hill, supra, at pp. 534-535.)
Freeman then held that “in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification.” (People v. Freeman, supra, 46 Cal.3d at p. 424.) Thus, it adopted that portion of the Hill definition which required such a sexual purpose. However, it did not adopt that portion of the Hill definition which required the prostitute to touch the customer. To the contrary, it expressly refused to decide “[w]hether or not prostitution must always involve a ‘customer’ . . . .” (Freeman, supra, at p. 424.)
In Hill, the defendant accepted $300 for delivering a boy to a customer who turned out to be an undercover police officer. (People v. Hill, supra, 103 Cal.App.3d at p. 528-529.) The defendant claimed to have been assured that all the customer had in mind was “a nude photo session.” (Id., at p. 530.) Nevertheless, he was convicted of pimping and pandering. (Id., at p. 528.) The appellate court reversed because the trial court had defined “prostitution” in terms of “lewd or dissolute acts between persons” but had never defined “lewd or dissolute acts.”
First, it noted that “lewd conduct,” for proposes of a related statute, Penal Code section 647, subdivision (a), had been held to require “ ‘the touching of *441the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense . . . .’ ” (People v. Hill, supra, 103 Cal.App.3d at p. 534, fn. omitted, quoting Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636].) It held that, to avoid vagueness, “lewd act,” for purposes of Penal Code section 647, subdivision (b) had to be defined similarly. (Hill, supra, at p. 534.)
Next, it noted that Penal Code section 647, subdivision (a) could be violated by the lewd conduct of a single person. By contrast, Penal Code section 647, subdivision (b) required a lewd act “between persons.” (People v. Hill, supra, 103 Cal.App.3d at p. 534.) It therefore modified the definition. It held: “[F]or a ‘lewd’ or ‘dissolute’ act to constitute ‘prostitution,’ the genitals, buttocks, or female breast[] of either the prostitute or the customer must come in contact with some part of the body of the other for the purpose of sexual arousal or gratification of the customer or of the prostitute.” (Id., at pp. 534-535.) It concluded that the trial court’s failure to define “lewd and dissolute acts” was prejudicial because the jury could have found the defendant guilty even if it believed his testimony that he did not expect the customer and the boy to make sexual contact. (Id., at p. 535.)
There was no evidence in Hill of any sexual contact, actual or contemplated, between the boy and anybody other than the customer. Hill therefore defined a “lewd act” in terms of a contact between the prostitute and the customer. But this portion of Hill’s definition of prostitution is sheer dictum. “It is axiomatic that an opinion is not authority for an issue not considered therein. [Citation.]” (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 243 [45 Cal.Rptr.2d 207, 902 P.2d 225].)
The statute itself requires only a “lewd act between persons for money or other consideration.” (Pen. Code, § 647, subd. (b).) It does not specify that one of those persons must be the prostitute and another must be the customer. Indeed, the majority concedes that “this broad definition of prostitution could plausibly be interpreted to include sexual conduct between two dancers, for money or other consideration from a customer . . . .” (Maj. opn., ante, at p. 431.) It further concedes that the Hill definition requiring a touching between the prostitute and the customer was unnecessary to the decision and that Freeman declined to adopt any such requirement. (Maj. opn., ante, at pp. 431-432.) Nevertheless, it concludes that, in light of Freeman and Hill, the statute is so ambiguous as to trigger the “rule of lenity.”
Not so. “[T]his rule ‘ “ ‘is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.’ . . .” *442[Citations.] Courts will not construe an ambiguity in favor of the accused if “such a construction is contrary to the public interest, sound sense, and wise policy.” [Citation.]’” (People v. Williams (1996) 49 Cal.App.4th 1632, 1638-1639 [57 Cal.Rptr.2d 448], quoting In re Ramon A. (1995) 40 Cal.App.4th 935, 941 [47 Cal.Rptr.2d 59].) The statute itself is clear. Applying it to this case, there clearly were “lewd acts” (i.e., genital touching) “between persons” (i.e., the dancers).
Hill could not create an ambiguity that was not already in the statute. For example, in People v. Ledesma (1997) 16 Cal.4th 90 [65 Cal.Rptr.2d 610, 939 P.2d 1310], the Supreme Court noted that several appellate courts had construed Penal Code section 12022.5 to mean that, when a defendant is convicted of assault with a firearm, imposition of a personal firearm use enhancement was discretionary; several others had held it was mandatory. (Ledesma, supra, at p. 93.) The Supreme Court held it was mandatory. (Id., at pp. 93-102.) The defendant argued that the court should apply the rule of lenity. It refused to do so, because it found that Penal Code section 12022.5 “is not ambiguous when considered in historical perspective.” (Ledesma, supra, at p. 101.) Thus, Ledesma teaches that multiple appellate opinions interpreting a statute and reaching opposite conclusions do not make that statute ambiguous. A fortiori, the one vagrant dictum in Hill cannot suffice to make the present statute ambiguous.
“ ‘Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability. [Citation.] (“[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity”).’ [Citation.]” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313 [58 Cal.Rptr.2d 855, 926 P.2d 1042], quoting Liparota v. United States (1985) 471 U.S. 419, 427 [105 S.Ct. 2084, 2089, 85 L.Ed.2d 434].) However, as I will discuss in more detail in part II, post, there is no due process right to rely on dicta. Moreover, if an otherwise clear statute could be deemed ambiguous based on a single court’s erroneous dictum, the rule of lenity would be turned on its head—the courts would be subverting the Legislature’s exclusive power to define crimes.
Just as I find no basis in the language of the statute for the majority’s requirement that the customer touch the prostitute, I also find none in public policy. Under the majority’s interpretation, if a father paid a woman to have sex with his son, or a businessman paid a woman to have sex with his client, there would be no prostitution, even though there would be if the son or the *443client paid the woman directly. Similarly, if a man paid another man to have sex with his wife while he watched, for his own sexual gratification, there would be no prostitution. If, however, the wife paid a man to have sex with her while her husband watched, so her husband could obtain sexual gratification, there would be prostitution. In each of these situations, regardless of who the payor is, there is an exchange of sex for money. That is the quintessence of prostitution.
The majority also reasons that “there are no reported cases that deviate from or disapprove of the definition of ‘lewd act’ espoused in Hill and relied upon in Freeman.” (Maj. opn., ante, at p. 432.) Something similar could be said in every case of first impression—by definition, there are no reported cases that disagree with whatever the majority decides. Actually, however, two reported cases have held that, where someone pays two models so he or she can photograph them having sex with each other, prostitution is committed. (People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1977) 75 Cal.App.3d 523, 529 [142 Cal.Rptr. 338]; People v. Fixler (1976) 56 Cal.App.3d 321, 325 [128 Cal.Rptr. 363].) Admittedly, Freeman expressly disapproved both of these cases. (People v. Freeman, supra, 46 Cal.3d at p. 428 & fn. 6.) It disapproved them, however, only “[t]o the extent [they] hold that the payment of wages to an actor or model who performs a sexual act in filming or photographing for publication constitutes prostitution regardless of the obscenity of the film or publication . . . .” (Id., at p. 428, fn. 6, italics added.) That is, it disapproved them only to the extent that they conflicted with the First Amendment aspect of the opinion. Otherwise they remain good law. Here, as I will discuss further below, defendants do not rely on the First Amendment. There was substantial evidence that the dancers’ “performances” were obscene; defendants do not argue otherwise. Accordingly, Van de Kamp and Fixler both support my conclusion that prostitution does not require a touching between the customer and the prostitute.
C. The Intent Requirement.
Defendants also argue, alternatively, that under Freeman prostitution requires that “the money or other consideration must be paid for the purpose of sexual arousal or gratification.” (People v. Freeman, supra, 46 Cal.3d at p. 424.) They claim Officer Valdivia’s only purpose was to investigate a suspected crime; thus, there was no evidence that he was seeking sexual arousal or gratification, either for himself or for the dancers. They conclude: “[T]he dancers did not violate Penal Code [s]ection 647(b) .... If the dancers did not violate Penal Code [s]ection 647(b) then [defendants] cannot be guilty of pimping and pandering as a matter of law.” *444Penal Code section 647, subdivision (b), however, has been amended since Freeman was decided. In 1983, when the offenses in Freeman were committed (People v. Freeman, supra, 46 Cal.3d at p. 422), it provided that disorderly conduct was committed by any person “[w]ho solicits or who engages in any act of prostitution. As used in this subdivision ‘prostitution’ includes any lewd act between persons for money or other consideration.” (Pen. Code, former § 647, subd. (b), as amended by Stats. 1977, ch. 426, § 1, p. 1441.)
In 1986, it was amended to provide, as it does now, that disorderly conduct is committed by any person “[w]ho 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. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, beside the agreement, be done within this state in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, ‘prostitution’ includes any lewd act between persons for money or other consideration.” (Pen. Code, § 647, subd. (b), as amended by Stats. 1986, ch. 1276, § 1, pp. 4457-4458, italics added.)
Thus, Penal Code section 647, subdivision (b), as amended, does not require a completed act of prostitution. A would-be prostitute can violate it merely by agreeing to engage in an act of prostitution. This is true even if the ostensible customer lacks the intent necessary for a completed act of prostitution. I may therefore assume there was no evidence that Officer Valdivia intended that he or the dancers be sexually aroused or gratified. I may further assume that, because he lacked this intent, the sexual acts did not constitute “lewd acts” within the statutory definition of “prostitution.” Even if so, however, the dancers had no way of knowing that Officer Valdivia lacked such an intent. As far as they could tell, he was the usual “John,” with a John’s usual intent. It follows that, even assuming Officer Valdivia’s hidden intent prevented there from being a completed act of prostitution, there was sufficient evidence that the dancers violated Penal Code section 647, subdivision (b).
However, I do not rest my opinion on this point. Despite defendants’ evident concession that pimping and pandering can be premised on any violation of Penal Code section 647, subdivision (b), the pimping and pandering statutes both speak in terms of “prostitution,” not in terms of a violation of Penal Code section 647, subdivision (b). Yet under Penal Code section 647, subdivision (b), as amended, not every violation constitutes *445“prostitution.” Rather, I believe that, even aside from the amendments to Penal Code section 647, subdivision (b), pimping and pandering do not require a completed act of prostitution.
It is vital to remember that both this case and Freeman involve a charge of pandering, not a charge of prostitution as such. The defendant in Freeman was charged under Penal Code section 266i, subdivision (a)(1), which applies to “ ‘[a]ny person who: . . . [procures another person for the purpose of prostitution ....’” (People v. Freeman, supra, 46 Cal.3d at p. 423.) It has long been held that pandering under this subdivision does not require a completed act of prostitution. (People v. Osuna (1967) 251 Cal.App.2d 528, 531-532 [59 Cal.Rptr. 559].)
Given the facts in Freeman, the prosecution’s theory was that the defendant was both the payor and the panderer. Indeed, in a footnote, the Supreme Court questioned whether “the very acting fees by which defendant ‘procured’ the actors (‘for the purpose of prostitution’) [could] also constitute the payment necessary to establish the ‘prostitution’ for which the actors are assertedly being ‘procured.’ ” (People v. Freeman, supra, 46 Cal.3d at p. 425, fn. 5.) It did not hold, however, that the defendant lacked the intent necessary for prostitution. Its crucial holding was that “[defendant, the payor, thus did not engage in either the requisite conduct nor did he have the requisite mens rea or purpose to establish procurement for purposes of prostitution.” (Id., at p. 425, italics added, in. omitted.)
Admittedly, the court in Freeman reasoned, in part, that “in order to constitute prostitution, the money or other consideration must be paid for the purpose of sexual arousal or gratification.” (People v. Freeman, supra, 46 Cal.3d at p. 424, italics omitted.) But Freeman is virtually unique in that the alleged panderer and the alleged payor were the same person. Thus, if the payor lacked the intent necessary for prostitution, the panderer could not help but be aware of that fact. In the ordinary case, the alleged panderer and the alleged payor are different people. Thus, the panderer can procure a prostitute for the purpose of prostitution, even assuming the payor—unbeknownst to both the panderer and the prostitute—lacks the intent necessary for a completed act of prostitution.
Moreover, here defendants are charged under a different subdivision of the pandering statute than the defendants in Freeman. They are charged under Penal Code section 266i, subdivision (a)(4), which applies to any person who causes “an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein . . . .” (Pen. Code, § 266i, subd. (a)(4).) Once again, the statute does not require a *446completed act of prostitution. Here, the dancers intended to engage in acts of prostitution; they were prevented from doing so, if at all, only by Officer Valdivia’s hidden intent. Thus, there was sufficient evidence that the Flesh Club was a place where prostitution was allowed and even encouraged.
At times, the majority opinion seems to accept that pandering requires a completed act of prostitution. (E.g., maj. opn., ante, at pp. 424, 427, 433; but see id., at p. 436.) It therefore minimizes the significance of Malibu’s offer of a “hand job.” Even if, as the majority holds, prostitution requires the prostitute to touch the customer, there was ample evidence that dancers did make sexual contact with other customers and that defendants were aware of this. Thus, her offer to commit prostitution would support a charge of pandering in connection with each date upon which she made this offer.
Defendants are also charged with pimping. Pimping requires that the defendant know that another person is a prostitute. (People v. McNulty (1988) 202 Cal.App.3d 624, 630 [249 Cal.Rptr. 22].) A “prostitute” for this purpose is a person who indiscriminately offers to perform sexual intercourse or other lewd acts between persons for hire. (See People v. Schultz (1965) 238 Cal.App.2d 804, 812 [48 Cal.Rptr. 328]; People v. Head (1956) 146 Cal.App.2d 744, 748 [304 P.2d 761].)
Pimping also requires either (1) deriving support from the earnings of another’s act of prostitution or (2) soliciting. (People v. McNulty, supra, 202 Cal.App.3d at p. 630.) Under the deriving-support prong of the statute, the prostitute must have earnings from prostitution, and the defendant must knowingly derive support from such earnings. (People v. Tipton (1954) 124 Cal.App.2d 213, 217-218 [268 P.2d 196].) Under the soliciting prong of the statute, “there must be either the receipt of compensation for soliciting for a prostitute or the solicitation of compensation for soliciting for a prostitute. [Citation.]” (People v. McNulty, supra, 202 Cal.App.3d at p. 630, italics omitted.)
People v. Dell (1991) 232 Cal.App.3d 248 [283 Cal.Rptr. 361] indicates that pimping, like pandering, does not necessarily require a completed act of prostitution. In Dell, the defendant operated an escort service. During an investigation, undercover officers called the service and requested an escort. The service would ask if the officer was paying by cash or credit card; if he answered that he was paying by credit card, it would verify the card. When the escort arrived, she would obtain payment up front. Next, the officer would get the escort to state that her services included sexual intercourse and/or oral copulation. There is no indication that the officers actually engaged in sex acts with the escorts. Finally, the escorts paid part of their receipts to the defendant’s escort service. (Id., at p. 252.)
*447The defendant was charged with pimping and pandering. (People v. Dell, supra, 232 Cal.App.3d at p. 251.) The trial court gave jury instructions which defined prostitution as sexual intercourse or any lewd act for money or other consideration. It also defined “lewd act” as “ ‘any act which involves the touching of the genitals, buttocks or female breast of one person by any part of the body of another person and is done with the intent to sexually arouse or gratify.’ ” (Id., at p. 263.) During deliberations, the jury asked if an act of prostitution required sexual intercourse. The trial court responded, “ ‘As long as the person has the specific intent to engage in sexual intercourse for money or other consideration, it is not necessary for the person to so engage in actual intercourse.’ ” (Ibid.)
On appeal, the defendant argued these instructions erroneously allowed the jury to find prostitution even in the absence of any physical contact. (People v. Dell, supra, 232 Cal.App.3d at p. 264.) The appellate court disagreed that physical contact was required: “In this case no contradictory evidence was offered to rebut these escorts’ intent to accept money for sexual acts. . . . The jury was also correctly informed an actual act of intercourse is not required to be guilty of an act of prostitution. . . . [Prostitution occurs when the person has the specific intent to engage in either sexual intercourse or lewd acts in exchange for money or other consideration for the purpose of sexual arousal or gratification and takes some step in furtherance of that act.” (Ibid.) Thus, a person’s agreement to engage in an act of prostitution can suffice to render him or her a prostitute, and to render a payment made in consideration of such an agreement the earnings of prostitution.
Here similarly, there can be no doubt that the dancers intended to accept, and did accept, money for the sexual acts. Moreover, there was sufficient evidence that defendants knew the dancers had accepted money for the sexual acts. Once again, as far as either the dancers or defendants knew, the dancers completed acts of prostitution. Even assuming that, solely because of Officer Valdivia’s hidden intent, they did not, they were “prostitutes,” and the money they accepted were the earnings of “prostitution,” within the meaning of the pimping statute.
D. First Amendment Issues.
In their opening brief, defendants expressly disclaim any reliance on “any First Amendment type of defense.” In their reply brief, however, they argue that we should define “prostitution” narrowly to avoid impinging on activity protected by the First Amendment.
“Although constitutional rights are generally said to be personal, a well-established exception is found in the overbreadth doctrine associated with *448First Amendment jurisprudence. [Citation.] Under this doctrine, litigants may challenge a statute not because their own rights of free expression are violated, but because the very existence of an overbroad statute may cause others not before the court to refrain from constitutionally protected expression. [Citations.]
“To succeed in a constitutional challenge based on asserted overbreadth, the [challenger] must demonstrate the statute inhibits a substantial amount of protected speech. [Citation.] ‘[0]verbreadth . . . must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.’ [Citation.]” (In re M.S. (1995) 10 Cal.4th 698, 710 [42 Cal.Rptr.2d 355, 896 P.2d 1365], quoting Broadrick v. Oklahoma (1973) 413 U.S. 601, 615 [93 S.Ct. 2908, 2927-2918, 37 L.Ed.2d 830].) “If a statute, on its face, criminalizes both protected and unprotected conduct, it must be narrowly construed to reach only unprotected conduct. [Citation.]” (People v. Ellison (1998) 68 Cal.App.4th 203, 210 [80 Cal.Rptr.2d 120].)
Absent a factual record demonstrating the existence of a substantial number of instances in which the statute cannot be applied constitutionally, an overbreadth challenge must fail. (New York State Club Assn. v. City of New York (1988) 487 U.S. 1, 14 [108 S.Ct. 2225, 2234-2235, 101 L.Ed.2d 1]; Williams v. Garcetti (1993) 5 Cal.4th 561, 578 [20 Cal.Rptr.2d 341, 853 P.2d 507].) In this case, there is no such factual record; and, as already noted, defendants do not claim the First Amendment applies to their own conduct.
Under Freeman, as a matter of state law, “lewd acts” do not include live or filmed performances by adults which are not constitutionally obscene (People v. Freeman, supra, 46 Cal.3d at pp. 425-430)—i.e., which, taken as a whole, (1) the average person, applying contemporary community standards, would find do not appeal to the prurient interest, or (2) do not depict or describe sexual conduct in a patently offensive way, or (3) have serious literary, artistic, political, or scientific value. (Miller v. California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 2614-2615, 37 L.Ed.2d 419]; Bloom v. Municipal Court (1976) 16 Cal.3d 71, 75-77 [127 Cal.Rptr. 317, 595 P.2d 229].) This standard will obviate most, if not all, potentially unconstitutional applications of the prostitution statute. Here, however, the magistrate could reasonably find that the acts the dancers were paid to perform were constitutionally obscene. Thus, the First Amendment does not require any construction of the prostitution statute that would exclude the dancers’ conduct.
*449II
Retroactivity
In their reply brief, defendants also contend that applying the pimping, pandering, and/or prostitution statutes to them would violate due process and ex post facto principles.
“ ‘[A]ny statute “ ‘which makes more burdensome the punishment for a crime, after its commission’ ” violates the ex post facto prohibition of the United States Constitution [citation], and its California counterpart. [Citation.] While this limitation is specifically directed to the legislative, not judicial, branch, the same principle applies to judicial decisions. [Citations.] Thus, “[i]f a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” [Citations.]’ [Citation.]
“ ‘Not all judicial interpretations of statutes having a retroactive effect are prohibited, however. The United States Supreme Court has explained that the Fifth Amendment forbids only the retroactive application of an “unexpected” or “unforeseeable judicial enlargement of a criminal statute.” [Citation.] California case law is in accord. [Citations.]’ [Citation.]
“ ‘ “In the case of judicial construction, due process is not violated merely because the language of the statute is being applied to a particular situation for the first time. . . . Nor do due process concerns of fair warning arise where the language of the statute is not being expanded in an unforeseeable manner even though the case is one of first impression and even if dicta in prior decisions suggested a narrower application. . . .” ’ [Citation.]” (People v. James (1998) 62 Cal.App.4th 244, 274-275 [74 Cal.Rptr.2d 7] [Fourth Dist., Div. Two], quoting People v. King (1993) 5 Cal.4th 59, 79-80 [19 Cal.Rptr.2d 233, 851 P.2d 27], People v. Wharton (1991) 53 Cal.3d 522, 586 [280 Cal.Rptr. 631, 809 P.2d 290], cert. den. (1992) 502 U.S. 1038 [112 S.Ct. 887, 116 L.Ed.2d 790], and People v. Taylor (1992) 7 Cal.App.4th 677, 693 [9 Cal.Rptr.2d 227].)
A holding that prostitution does not require physical contact between the prostitute and the customer is by no means unforeseeable. As already discussed, the applicable statute requires a “lewd act between persons,” but it does not specify who those persons must be. The language in People v. Hill, supra, 103 Cal.App.3d 525 suggesting that the prostitute had to touch the customer was plainly dictum.
*450Likewise, a holding that pimping and pandering do not require a completed act of prostitution is not unforeseeable. With respect to pandering, this is already clear. (People v. Osuna, supra, 251 Cal.App.2d at pp. 531-532.) Moreover, the language of the pandering statute clearly does not require such an act. The language of the pimping statute arguably is more ambiguous on this point; nevertheless, it has been the law since People v. Dell, supra, 232 Cal.App.3d 248 was decided in 1991 that pimping does not require a completed act of prostitution.
Finally, I reject defendants’ reliance on an unpublished decision by the Appellate Division of the Superior Court of Orange County, involving a “ ‘two-girl show’ ” apparently quite similar to those at the Flesh Club. (People v. Vang, No. AP-11529, filed Jan. 12, 2000.) As Witkin notes, “[tjhese unpublished decisions can scarcely be regarded as authority.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 926, p. 963; see also Cal. Rules of Court, rule 977(a).) If defendants relied on such “authority,” they did so at their peril.
I conclude that the pimping, pandering, and prostitution statutes may constitutionally be applied in this case.
The petition of real party in interest for review by the Supreme Court was denied January 29, 2002. Baxter, J., Werdegar, J., and Brown, J., were of the opinion that the petition should be granted.