Ex parte Mitchell

• Decision Date: 07 September 1950
• Docket Number: Cr. 5025
• Citation: 35 Cal.2d 849,221 P.2d 689
• Court: California Supreme Court
• Parties: Ex Parte MITCHELL

Page 689

221 P.2d 689

35 Cal.2d 849

Ex Parte MITCHELL

Cr. 5025.

Supreme Court of California, in Bank.

Sept. 7, 1950.

John J. Bradley, Max Solomon, Los Angeles, for appellant.

W. E. Simpson, District Attorney, Los Angeles County, Jere J. Sullivan, and Robert Wheeler, Deputies District Attorney, all of Los Angeles, for respondent.

SHENK, Justice.

By this preceeding in habeas corpus the petitioner is seeking her release from the custody of the sheriff of Los Angeles County. She alleges that her conviction was the result of perjured testimony on the part of members of the police department of the city of Los Angeles and that thereby her constitutional rights were unlawfully invaded.

The petitioner was convicted in September 1948 of an attempt to commit the crime of pandering. ¹ The trial was before the court without a jury. She was sentenced to the State Institution for Women at Tehachapi. She filed an application for probation which was granted on condition that she serve one year in the county jail. A motion for a new trial was denied. The judgment and the order were affirmed. People v. Mitchell, 91 Cal.App.2d 214, 205 P.2d 101. A hearing in this court was denied in May, 1949, and the petitioner commenced to serve her time in the county jail. In July, 1949, an investigation was in progress before the county grand jury involving certain members of the Los Angeles police department.

On July 7, 1949, Audrey Davis appeared before the grand jury and was subjected to direct and cross-examination concerning certain matters that had taken place during the course of the prosecution of the petitioner. She was a policewoman in the police department of the city of Los Angeles and was one of the principal witnesses on behalf of the prosecution against the petitioner. At the hearing before the grand jury she stated that she had sworn falsely at the petitioner's trial. She also stated that Charles Stoker had committed perjury at the trial and had influenced her to swear falsely. Stoker was a sergeant in the police department and was the officer to whom Audrey Davis was required to report in the performance of her duties.

After the testimony of Audrey Davis before the grand jury became known to her, the petitioner filed an application for a writ of habeas corpus in the District Court of Appeal, 2nd Appellate District, basing her application upon the same grounds set forth in the present petition. That pplication was denied on August 3, 1949. On August 10th she filed her application for a writ of habeas corpus in this court and the writ was issued. Upon the return to the writ a reference was ordered. The Honorable William F. Traverso, judge of the superior court in and for the city and county of San Francisco, was appointed to take testimony bearing upon the following questions and to make findings of fact thereon:

1. Did any witness who testified at the trial of Marie Mitchell, also known as Brenda Allen, on the charge of attempted pandering, a felony, in action No. 119980 in the Superior Court, Los Angeles County, commit perjury as defined in section 118 of the Penal Code; that is, did any such witness give false testimony as to any material matter which he or she knew to be false?

2. In the event that any such witness so falsely testified, did any representative of the State of California responsible for the presentation of the testimony, including any police officer, cause or suffer such testimony to be introduced knowing that such testimony as given was false?

A hearing was held by the referee in Los Angeles on October 31, 1949. Witnesses were called including the petitioner and Audrey Davis on behalf of the petitioner and Sergeant Stoker on behalf of the respondents. Transcripts of certain testimony before the grand jury and at the petitioner's trial were introduced in evidence. On the basis of all of the evidence introduced, the referee made fourteen specific findings of fact to the effect that the testimony of Audrey Davis and Charles Stoker given at the petitioner's trial was truthful. The answer to the first question was therefore in the negative and it became unnecessary to answer the second question. Following the filing of the findings and report of the referee, the petitioner presented exceptions to the findings. The record before the referee and in turn the record before us in this proceeding consists of the petition for the writ; the respondent's objection to the issuance thereof; the transcript of the oral testimony taken at the hearing before the referee covering 164 pages; the transcript of the testimony of Audrey Davis at the trial of the petitioner, and the transcript of testimony of Audrey Davis and Sergeant Stoker before the grand jury in July 1949.

In order to understand the nature of the charge of perjury, it is necessary to relate in some detail the facts in support of the judgment of conviction and the testimony taken before the grand jury.

At the petitioner's trial Audrey Davis testified to the following effect: She was a policewoman who worked under the direction of Sergeant Stoker. Stoker told her that he suspected that prostitutes were living at a certain hotel and that he was suspicious of the management of the hotel. He instructed her to reside at the hotel and pose there as a prostitute to see if she could obtain information to substantiate his suspicions. He gave her the number of a telephone exchange service that he believed was being used by prostitutes generally and told her to try to become listed on that exchange. She established a residence at the hotel as directed and became acquainted with some of the people there. She attempted to subscribe to the telephone exchange service but was unsuccessful. After about three weeks, in the afternoon of May 2, 1948, the petitioner called her at the hotel, identified herself as Brenda Allen, and said she had a mutual friend who had given her Audrey Davis' telephone number. She said she understood that Audrey Davis was a prostitute who was out of work, and said she would like to talk over a business proposition with her. An appointment for an hour later was made. The petitioner gave Audrey Davis instructions as to how to reach her address and furnished her the petitioner's telephone number. This was the same number that Stoker had given her as the number of the telephone exchange service. Audrey Davis then telephoned Stocker and told him what had happened. Prior to that time Stoker had never mentioned the petitioner's name to Audrey Davis or said that his purpose was to obtain information about the petitioner. Stoker told Audrey Davis to see the petitioner according to her arrangement. He told her that he would also proceed to the house and would hide outside in order to be available for assistance if trouble developed. Audrey Davis went to the petitioner's house and found her in her front yard flower garden. They went inside the house and engaged in conversation. The petitioner said she conducted a house of prostitution and gave various details of her operations. She questioned Audrey Davis about her experience and ability in that activity, and then told her she would arrange for a medical examination in order that she could start to work. The petitioner stated that she would telephone her the next day about eleven o'clock in the morning regarding the examination. The petitioner then called a taxicab by telephone for Audrey Davis. While they were waiting for the taxicab, an unidentified man called at the front door; the petitioner admitted him and escorted him to another part of the house. The petitioner returned and told Audrey Davis that the man was 'an old customer' who was a 'thirty dollar trick' and that if she wanted to make fifteen dollars quickly, she could 'take the trick.' The policewoman made excuses. The petitioner said that she had expected another girl to be available, and urged Audrey Davis to engage in an act of prostitution with the unidentified man. The taxicab arrived and Audrey Davis left, explaining that she had an appointment. On the next day about eleven o'clock in the morning, the petitioner again telephoned Audrey Davis. She said she was unable to have her see a doctor that day, but would arrange for an examination the next day. She told Audrey Davis that after the examination she could definitely start employment the next day at one o'clock in the afternoon. She also said that one of her girls might leave that night and if so Audrey Davis could begin work earlier. She asked Audrey Davis to telephone her about eight o'clock in the evening to find out whether she should begin work earlier. Audrey Davis called several times, but each time was informed that the petitioner was not available.

According to the petitioner's allegations Sergeant Stoker testified at the trial that Audrey Davis called him and stated that the petitioner had called her by telephone; that he went to the petitioner's address and concealed himself across the street in some shrubbery before Audrey Davis arrived; that he saw Audrey Davis arrive, saw an unidentified man arrive later, and saw Audrey Davis leave.

Before the grand jury Audrey Davis testified that Sergeant Stoker had persuaded her to tell falsehoods at the petitioner's trial in order to bolster his case against the petitioner. In particular she stated that she had testified falsely in saying that the petitioner had made the original telephone call to her. She said that she herself had made that call. She said that when the Sergeant had given her the telephone number of the exchange service, he had informed her that it was the number used by the petitioner and had instructed her to use the number to call the petitioner in order to try to secure employment with her as a prostitute. She further testified that she did not call Stoker or anyone else to inform him that she was going to the petitioner's house, so that in her opinion Stoker was not telling the truth when he...