People v. Dell

• Decision Date: 15 July 1991
• Docket Number: No. B043674,B043674
• Citation: 283 Cal.Rptr. 361,232 Cal.App.3d 248
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary DELL aka Winifred Strand, Defendant and Appellant.

Page 361

283 Cal.Rptr. 361

232 Cal.App.3d 248

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mary DELL aka Winifred Strand, Defendant and Appellant.

No. B043674.

Court of Appeal, Second District, Division 7, California.

July 15, 1991.

As Modified on Denial of Rehearing

Aug. 9, 1991.

Review Denied Oct. 16, 1991.

[232 Cal.App.3d 251] Dennis A. Fischer, Santa Monica, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., Linda C. Johnson, Supervising Deputy Atty. Gen., and Sanjay T. Kumar, Deputy Atty. Gen., for plaintiff and respondent.

JOHNSON, Associate Justice.

Appellant, Mary Dell, aka Winifred Strand, appeals from a judgment of conviction after a jury trial for one count of pimping and two counts of pandering in violation of Penal Code sections 266h and 266i. We find the various assignments of error do not warrant reversal and affirm the judgment below.

FACTS AND PROCEEDINGS BELOW

Because there is no challenge to the sufficiency of the evidence to sustain the convictions, the facts may be briefly summarized.

Undercover police conducted a ten-month investigation of the Rendezvous Escort Agency which was suspected of being a front for prostitution. Appellant promoted the Rendezvous Escort Agency by placing advertisements in the yellow pages of telephone directories.

During the investigation undercover officers called the advertised number and requested an escort be sent to their hotel room. The dispatcher took the name and location of the caller and inquired if the hourly fee of $200--$300 would be paid by cash or credit card. If the caller indicated credit card, the dispatcher would verify the caller's credit with the credit card company and receive authorization for the charge. The dispatcher then contacted one of the escorts to make the "outcall." The escort would then call the customer to ensure the location was in fact as indicated and to hopefully screen out policemen or other undesirable men. Upon arrival at the designated location, the escort would request the fee up front; and if payment was by credit card, would prepare the voucher and get the customer's signature and verify identification. The escort would then telephone the dispatcher to say that everything was all right.

With the formalities completed, the escorts would then completely undress and offer condoms for the officers' use. The escorts either volunteered the sex acts they would perform, or the officers inquired as to what they could expect for the fee. The typical response was sexual intercourse and oral copulation.

When the escorts left they again called the dispatcher to arrange a location to drop off the agency's portion of the escorts' proceeds.

Appellant was linked to the operation by evidence she personally hired and trained some of the dispatchers. Telephone company personnel testified she personally placed and authorized the telephone page advertising for the Rendezvous Escort Agency. Evidence was also introduced she had call forwarding facilities and a telephone system in place to link her personal residences with the dispatch locations. There was also testimonial evidence appellant personally visited the dispatch location weekly to pick up the receipts.

As part of the undercover operation, a police officer posing as a representative of the Diner's Club credit card company had a meeting with appellant to explain several customers had disputed charges attributed to her company. At this meeting appellant announced she would change the merchant account name for credit card purchases to L.A. Services Company to help to jog her customers' memory as to the purpose of the charge. Appellant executed documents making this change as "owner" of the L.A. Services Company. Subsequent credit card charges made by the police officers during the investigation of the escort agency bore the name L.A. Services Company on the voucher.

Searches of appellant's home and the dispatch location revealed lists of regular customers with their sexual preferences and lists of "jerks" and suspected police officers. At the dispatch location police recovered a schedule of the agency's fees and a commission schedule for the dispatchers based on the escorts' fees.

After a trial by jury, appellant was convicted as charged on all three counts. She appeals from the judgment of conviction.

DISCUSSION

I. REPLACEMENT OF THE TWO REGULAR JURORS WITH ALTERNATES WAS PROPER.

Appellant contends it was reversible error for the court to dismiss two regular jurors without a hearing to demonstrate good cause for the dismissal.

Penal Code section 1089 describes the situations in which a regular juror may be properly substituted for an alternate. "If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the court may order him to be discharged and draw the name of an alternate...." (Pen.Code, § 1089.) Thus, the grounds for use of the alternates are: 1) death of a juror; 2) illness of a juror; 3) good cause shown to the court; and, 4) request of a juror for good cause.

In this case illness was the ground for the dismissal of both jurors. After jury deliberations had begun, the court announced its clerk received a phone call from juror number 3. At the court's request the clerk stated for the record the juror "indicated that he had an attack of phlebitis and he wished to be excused because he was feeling very ill." The court announced "Okay. I am excuseing [sic] him. And we called [the prosecutor], who had no objection, and [defense counsel] I understand from [the clerk] said he understood, but he did have an objection because he liked that juror. So I had excused the juror for cause because he was ill. He had a problem during trial."

Approximately one-half hour later, the court again went on record: "We've been waiting--it's now 20 of 10:00. We've been waiting for juror No. 10 to arrive. I was informed by [the clerk] that she received a call from [the juror's] cousin. [The juror] was in an accident and is being taken to the hospital. She indicated that she was sore and she would try to come in tomorrow but she couldn't promise, but she's being taken to the hospital and is in bad shape today. I'm going to have to excuse her for legal cause at this time. I'm assuming--well, I don't know how [defense counsel] feels."

The court's clerk tried unsuccessfully to reach defense counsel, but he was "not in the office." The court announced "Okay. However, [appellant] is present. I'm assuming that maybe [defense counsel] might object again, but he can put his objection on the record. I'm still going to use the two alternates." ¹

In support of her argument that a hearing was required before the regular jurors could be dismissed, appellant relies on several cases construing the third and fourth grounds--good cause shown to the court and at the request of a juror for good cause. These decisions, however, do not directly control the situation of juror illness. The cases appellant cites seem to follow a general pattern: when the reason for disqualification of a juror is not immediately apparent to the court, the proper procedure appears to include a summary hearing to determine the factual basis for the disqualification or the sincerity of the juror's claim he or she is incapable of performing the duties of a juror. (See, e.g., People v. Burgener (1986) 41 Cal.3d 505, 224 Cal.Rptr. 112, 714 P.2d 1251 [error for court to retain juror without a hearing after being put on notice juror using drugs and alcohol and possibly incapable of deliberating]; People v. Hamilton (1963) 60 Cal.2d 105, 32 Cal.Rptr. 4, 383 P.2d 412 [on a charge of bias the court has a limited discretion to determine the facts show an inability to perform the functions of a juror, and that inability must appear in the record as a demonstrable reality]; People v. McNeal (1979) 90 Cal.App.3d 830, 153 Cal.Rptr. 706 [failure to hold hearing to determine bias requires reversal]; People v. Collins (1976) 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742 [legal necessity to discharge because juror stated at hearing could not follow court's instructions and could not decide the case on the law and the evidence presented]; People v. Thomas (1990) 218 Cal.App.3d 1477, 267 Cal.Rptr. 865 [hearing in camera after foreperson accused one juror of bias against police officers]; People v. Compton (1971) 6 Cal.3d 55, 98 Cal.Rptr. 217, 490 P.2d 537 [reversed because double jeopardy had attached after the court dismissed the entire jury instead of holding a hearing to determine actual bias of an alternate juror].)

On the other hand, the determination of good cause for dismissal after a juror's request to be dismissed does not always require a hearing. A juror's disqualification is discretionary with the court and if there is any substantial evidence supporting the decision it will be upheld on appeal. (People v. Farris (1977) 66 Cal.App.3d 376, 386, 136 Cal.Rptr. 45.)

In In re Mendes (1979) 23 Cal.3d 847, 852, 153 Cal.Rptr. 831, 592 P.2d 318, the court explained: "Unless the facts clearly establish a sufficient basis on which to reach an informed and intelligent decision, the court must conduct an appropriate hearing in the presence of litigants and counsel on the question of the juror's ability to serve." Yet the court went on to hold it was not an abuse of discretion to dismiss a juror whose brother had died during the night without a hearing and in the absence of counsel because the circumstances "clearly constituted good cause." (Ibid; see also People v. Hess (1951) 104 Cal.App.2d 642, 680, 234 P.2d 65 [no abuse of discretion in dismissing a juror to allow her to be with her father who had...