Hutchins v. Municipal Court

• Decision Date: 17 August 1976
• Citation: 132 Cal.Rptr. 158,61 Cal.App.3d 77
• Court: California Court of Appeals Court of Appeals
• Parties: Lynn Louis HUTCHINS, Plaintiff and Respondent, v. MUNICIPAL COURT OF SANTA MONICA JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Defendant and Respondent; The PEOPLE of the State of California, Real Party in Interest and Appellant. Civ. 47065.

Page 158

132 Cal.Rptr. 158

61 Cal.App.3d 77

Lynn Louis HUTCHINS, Plaintiff and Respondent, v. MUNICIPAL COURT OF SANTA MONICA JUDICIAL DISTRICT, COUNTY OF LOS ANGELES, State of California, Defendant and Respondent The PEOPLE of the State of California, Real Party in Interest and Appellant.

Civ. 47065.

Court of Appeal, Second District, Division 5, California.

Aug. 17, 1976.

Rehearing Denied Sept. 8, 1976.

Hearing Denied Oct. 14, 1976.

Burt Pines, City Atty., Los Angeles, David Perez, Chief Asst. City Atty., Madeleine I. Flier, Deputy City Atty., Chief, Sp. Prosecutions Div., Richard M. Helgeson, Deputy City Atty., Chief, Special Trials Section, and Gary M. Pohlson, Deputy City Atty., Los Angeles, for real party in interest and appellant.

Herbert M. Rosenthal, San Francisco, and Robert M. Sweet, Los Angeles, for amicus curiae, The State Bar of Cal., on behalf of real party in interest and appellant.

Donald C. Smaltz, Los Angeles, Michael D. Scott, Beverly Hills, and Thomas M. Indovina for plaintiff and respondent.

No appearance for defendant and respondent.

ASHBY, Associate Justice.

Respondent Lynn Louis Hutchins (hereinafter 'respondent'), a licensed California attorney at law, was charged in a misdemeanor complaint with aiding and abetting and conspiring with certain persons acting as runners or cappers in the solicitation of business for him. Business and Professions Code section 6151 defines a runner or capper as 'any person . . . acting in any manner or in any capacity as an agent for an attorney at law . . . in the solicitation or procurement of business for such attorney at law . . ..' Business and Professions Code section 6152 makes it 'unlawful for any person . . . to act as a runner or capper for any such attorneys or to solicit any business for any such attorneys . . ..' Business and Professions Code section 6153 makes such act a misdemeanor.

The amended misdemeanor complaint specifically charged in count I '(t)hat on or about 5:20 P.M., on November 8, 1973 and for a period of 48 hours thereafter, at and in the County of Los Angeles, and City of Los Angeles, State of California, a misdemeanor, to wit: Violation of Section 6152 of the California Business and Professions Code of the State of California was committed by LYNN LOUIS HUTCHINS who at the time and place last aforesaid did counsel and aid the commission of such misdemeanor in violation of Section 659 of the California Penal Code and did act as a principal as that term is defined in Penal Code Section 31 in that he did aid and abet, and advise and encourage a person to wit: William Stiger and John Doe aka 'Luce' in that person(')s individual capacity and (in) his capacity as a private and public employee and for a firm, corporation, partnership, and association to act as a runner and capper for an attorney, as that term is defined in Business and Professions Code Section 6151, and to solicit business for such attorney . . ..'

In count III of the amended complaint it was charged that respondent, 'Luce' and Stiger violated Penal Code section 182 in that they did 'conspire among themselves and with other persons . . . to commit a misdemeanor to wit: violation of Section 6152 of the Business and Professions Code of the State of California(, t)he intendment being that Stiger and Luce or either of them would act as cappers and solicit business.' It is alleged that during the 48 hours following a traffic accident at 5:20 p.m. on November 8, 1973, Stiger and Luce drove the accident victims to various locations, told them that they would see a lawyer the next day and that respondent is a good lawyer, had them sign a form which pertained to legal services, and drove them to the law offices of respondent.

The superior court issued a peremptory writ of prohibition commanding the municipal court to desist and refrain from taking any further action or proceeding in the matter, adopting respondent's contention that although the runners or cappers involved in such conduct are subject to criminal prosecution, the attorney is not. The People appeal. The State Bar appears as amicus in support of the People. We hold that respondent's contention is without merit and therefore we reverse.

DISCUSSION

'1] All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commision, . . . are principals in any crime so committed.' (Pen.Code, § 31; see People v. Durham, 70 Cal.2d 171, 181, 74 Cal.Rptr. 262, 449 P.2d 198; People v. Villa, 156 Cal.App.2d 128, 133--134, 318 P.2d 828.) The aiding and abetting law can even be applied where by statutory definition the defendant would be Incapable of committing the substantive offense by himself. (E.g., Matter of Application of Kantrowitz, 24 Cal.App. 203, 204--205, 140 P. 1078 (man may aid in the rape of his wife); People v. Hernandez, 18 Cal.App.3d 651, 657, 96 Cal.Rptr. 71 (woman may aid in the rape of another woman); People v. Elliott, 241 Cal.App.2d 659, 665, 50 Cal.Rptr. 757 (woman may aid male pimp); People v. Wallin, 32 Cal.2d 803, 806--809, 197 P.2d 734 (defendant may aid another to be accessory to defendant's own crime).)

2] Moreover, where two or more persons agree that they will commit an unlawful act or achieve a lawful object by unlawful means, and in furtherance of the agreement commit an overt act towards achievement of their object, they are guilty of conspiracy. (Pen.Code, § 182; see People v. Morales, 263 Cal.App.2d 368, 375, 69 Cal.Rptr. 402; People v. Fujita, 43 Cal.App.3d 454, 471, 117 Cal.Rptr. 757.)

Respondent contends that notwithstanding these principles an attorney who employs runners and cappers to solicit business for him is not subject to criminal prosecution. Although the briefs of both parties and amicus are very thorough, none has been able to cite a controlling case involving the same factual situation, and each relies on various analogies. Respondent cites four California cases and one United States Supreme Court case to support his argument that the laws of aiding and abetting and conspiracy are not applicable to his alleged conduct in this case. In Ex parte Sullivan, 17 Cal.App. 278, 119 P. 526, an unmarried man was charged with living in a state of cohabitation and adultery with a married woman in violation of Penal Code section 269a. The court granted a writ of habeas corpus, noting that adultery is defined as the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife, and that since the petitioner was not a married person he was incapable of committing the offense. The court declined to uphold the prosecution on an aiding and abetting theory, suggesting that it would be contrary to legislative intent. The Supreme Court followed Sullivan in In Re Cooper, 162 Cal. 81, 85, 121 P. 318, another adultery case, declining to apply Penal Code section 31, on the ground that Penal Code section 269a excluded the idea of any criminal offense on the part of the unmarried person on account of such participation alone.

In Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206, a man and a woman took a trip across state lines for the purpose of illicit sexual relations. The woman consented to the trip for such purpose. Both the man and the woman were convicted of conspiracy to violate the Mann Act. Referring to the language of the statute ('any person who shall knowingly transport . . . any woman or girl for . . . any . . . immoral purpose') the court found that the failure of the statute to provide any punishment for the woman evidenced a congressional intent that she should not be punished if her only role was her mere acquiescence in the transportation for the intended purpose, and the court therefore reversed the convictions, citing In Re Cooper.

People v. Buffum, 40 Cal.2d 709, 256 P.2d 317, was a prosecution against a doctor and another man for conspiracy to perform abortions in violation of Penal Code section 274. On the issue of whether the women who obtained the abortions were accomplices so as to require corroboration of their testimony, the Supreme Court held that they were not, because they were not subject to prosecution for the same crime of which the defendant was convicted. A woman who obtained an abortion on herself was subject to prosecution for violation of a different statute, Penal Code section 275. The court held that the specific statute controlled the general, and that therefore the woman could not be prosecuted for violating Penal Code section 274 or for conspiracy to violate it. (Id. at pp 720--722, 256 P.2d 317.) The court indicated that the conspiracy statute did not apply 'where the statutes defining the substantive offense disclose an affirmative legislative policy that the conduct of one of the parties involved shall be unpunished. (Citing Gebardi; citations omitted.) Similarly, the rule should not be applied where, as here, the Legislature singles out one of the parties for special treatment by enacting a statute which deals only with the conduct of that person and provides for a lesser punishment than is given to the other party.' (Id. at pp. 722--723, 256 P.2d at p. 324.) Finally, the Buffum rationale was recently applied in Williams v. Superior Court, 30 Cal.App.3d 8, 106 Cal.Rptr. 89, to prevent the elevation of a simple misdemeanor act of prostitution into a felony by charging the prostitute with conspiracy with her pimp.

From these cases respondent attempts to distill a 'rule' that 'where a statute defines an offense which necessarily involves joint action, but provides no punishment for the conduct of one of the participants, that participant cannot be charged as principal, co-conspirator or aider and abettor in the substantive offense committed by the other party.' Respondent argues that since ...