People v. Ganatta, 80SA101

• Decision Date: 14 December 1981
• Docket Number: No. 80SA101,80SA101
• Citation: 638 P.2d 268
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Pete GANATTA, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 268

638 P.2d 268

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Pete GANATTA, Defendant-Appellee.

No. 80SA101.

Supreme Court of Colorado, En Banc.

Dec. 14, 1981.

Gus Sandstrom, Dist. Atty., Michael Kupecz, Deputy Dist. Atty., Pueblo, for plaintiff-appellant.

No appearance for defendant-appellee.

LEE, Justice.

The defendant, Pete Ganatta, was convicted by jury of pandering, keeping a place of prostitution, pimping, and conspiracy to commit both pimping and pandering, based upon activities at the 85 Club in Pueblo, Colorado. ¹ After the guilty verdicts were returned, the court granted the defendant's motion for judgment of acquittal on the pimping and conspiracy to commit pimping charges. The district attorney appealed pursuant to section 16-12-102, C.R.S. 1973 (1978 Repl.Vol. 8). We reverse the district court and reinstate the jury verdict of guilty on pimping and conspiracy to commit pimping.

In May of 1977, Pueblo police officers were investigating alleged prostitution activities occurring at the 85 Club, a nightclub and bar managed by Pete Ganatta. The police enlisted the aid of Tad Puckett, a private citizen, who agreed to act as an informant in the case and to go to the 85 Club. Shortly after entering the bar, the barmaid asked Puckett and undercover police officer Larry Buckallew if they wanted company. The two assented and were approached by two women offering sexual services. The Pueblo police had previously given Tad Puckett currency, the serial numbers of which had been recorded. Puckett then gave Cynthia Goree a $50 bill and a $5 bill to purchase her services. Goree told him to leave the club through the front door and to meet her in a motel located in back of the club. Puckett then observed Goree walk behind the bar counter and talk to the defendant, Pete Ganatta. She appeared to hand him the money which she had received from Puckett. She then left the club through the rear door. Goree and Puckett then met at a motel room and engaged in sexual relations. A few minutes later the police entered the motel room and found Puckett and Goree disrobed. Both were taken into custody and Goree was charged with prostitution; Puckett's arrest was a sham. The police then arrested Pete Ganatta and charged him with promoting sexual immorality, ² pimping, pandering, keeping a place of prostitution, and conspiracy. At the time of his arrest, Ganatta had in his possession the currency that Puckett had given to Goree, as well as several hundred dollars in cash and checks, which he claimed were his "personal money."

At trial on the charges, the prosecution presented evidence that the 85 Club was managed and owned by Pete Ganatta, possibly in partnership with his brother, Frank Ganatta, and that prostitutes had been operating out of the club at Pete Ganatta's direction or with his approval. Ganatta supervised the employment of women as exotic dancers and purportedly shared their profits from prostitution. A former prostitute who had worked at the 85 Club testified that prostitutes at the 85 Club would pay Mr. Ganatta the money they received from their customers for sexual services, usually $52, in return for a key to a room in the motel in back of the nightclub, which he also owned, where they would engage in sex for hire. Later, Ganatta would settle with the women by paying them one-half of the amount given to him, less $2 which was payable to the cocktail waitress as a tip. Testimony corroborating the cost of prostitution was offered by several individuals who had on numerous occasions paid to engage in sexual activities with the prostitutes at the 85 Club. There was testimony that checks written to "cash" in amounts of $52, which were seized from Ganatta at the time of his arrest, had been written by customers to pay prostitutes for their sexual services. In addition, bank records from Pete Ganatta's business account for the 85 Club were introduced into evidence, indicating that large amounts of cash and checks in amounts of $52 or multiples thereof, written to "cash" and endorsed by Mr. Ganatta, had been deposited into his checking account.

At the close of all the evidence on November 5, 1979, the trial judge indicated to counsel that he intended to grant a judgment of acquittal on the charges of pimping and conspiracy to commit pimping, due to insufficiency of evidence. On the following day, the trial judge again addressed the attorneys but informed them that he had changed his mind and had decided to submit all charges to the jury. These two oral orders were simultaneously signed as minute orders on November 9, 1979. However, on November 7, 1979, the jury returned a verdict of guilty on all charges, including the pimping and conspiracy to commit pimping charges.

After the verdict was entered, the trial judge granted the defendant's motion for judgment of acquittal on the pimping and conspiracy to commit pimping charges on the basis that the jury had impermissibly "(drawn) an inference from an inference" in order to convict. The prosecution appealed the ruling of the trial court pursuant to section 16-12-102, C.R.S. 1973 (1978 Repl. Vol. 8). We reverse the judgment of acquittal and reinstate the jury verdicts.

I.

Section 16-12-102, C.R.S. 1973 (1978 Repl. Vol. 8), allows the prosecution to appeal questions of law which have precedential value. Since this case involves the legal standard to be applied to evidence of pimping or conspiracy to commit pimping, it merits review under the statute. The language of the pimping statute requires interpretation, although it has been held not to be unconstitutionally vague. See, People v. Johnson, 195 Colo. 350, 578 P.2d 226 (1978); People v. Stage, 195 Colo. 110, 575 P.2d 423 (1978); and, People v. Barron, 195 Colo. 390, 578 P.2d 649 (1978).

A.

Section 18-7-206, C.R.S. 1973 (1978 Repl. Vol. 8), with which defendant was charged, describes the crime of "pimping" as follows:

"Pimping. Any person who knowingly lives on or is supported or maintained in whole or in part by money or other thing of value earned, received, procured, or realized by any other person through prostitution commits pimping, which is a class 5 felony."

In Trozzo v. People, 51 Colo. 323, 117 P. 150 (1911), this court defined the statutory phrase "lives on" as "to be maintained in life, to acquire a livelihood, to subsist with, on or by." This definition, however, does not answer the question of what degree of proof is necessary to establish that one "lives on" money from prostitution.

The defendant argued in his motion for judgment of acquittal that there was insufficient evidence to convict on the pimping charges. The evidence consisted of money and checks payable to cash that were in Ganatta's possession at the time of his arrest and records of deposits to his business bank account in amounts reflecting the $52 cost of prostitutes' services. Therefore, he argued, the jury was able to convict only after drawing an inference that the funds from prostitution were applied to his support, although there had been no evidence offered to prove how the funds had been spent. The trial judge ultimately determined that the jury had drawn an impermissible inference from an inference and granted the judgment of acquittal. We do not agree with this conclusion.

When evidence was offered that Ganatta was an owner and manager of the 85 Club, and that checks payable to "cash," but representing payments for a prostitute's sexual services, were endorsed by him and deposited by him into a business bank account of which he was either sole or part owner, in our opinion, the evidence was sufficient to establish a prima facie case that Ganatta lived on or was supported in whole or in part from funds derived from prostitution.

Undoubtedly, some of the money deposited into the business account may have been derived from legitimate business activities. Nevertheless, we find no merit in the defendant's assertion that in order to be convicted of pimping a person must be maintained solely or substantially by proceeds from prostitution. Rather, the proper inquiry under the statute is whether the defendant knowingly received funds derived from another's prostitution and applied those funds to his support, maintenance, or "living." ³ We find no necessity to promulgate a technical definition of these terms. Instead, we conclude that where the people's evidence establishes that a person knowingly applies a thing of value received through another's act of prostitution to his own benefit, whether it be a business or personal benefit, a prima facie case for proof of the crime of pimping has been made.

California has interpreted similar statutory language in like manner. A California pimping statute provided in part:

"Any male person who, knowing a female person to be a prostitute, shall live or derive support or maintenance, in whole or in part, from the earnings or proceeds of the prostitution of such prostitute, ... shall be guilty of a felony, to wit: pimping." Gen.Laws, Act 1911, as amended in 1921. ⁴

This language has been interpreted to mean that if "such earnings are received knowingly and applied to the support of the accused person, under the circumstances mentioned in the statute, he would be guilty of pimping regardless of his wealth, possessions or legitimate income from other sources .... We do not think the act was intended to favor opulent pimps over impecunious ones." People v. Coronado, 90 Cal.App.2d 762, 203 P.2d 862 (1949). The scope of proof does not necessitate a showing that the money earned from prostitution was actually spent to provide support and maintenance if it may reasonably be inferred that the accused has spent the money or applied it to his benefit. See People v. Giambone, 119 Cal.App.2d 338, 259 P.2d 10 (1953); People v. Kennedy, 200 Cal.App.2d 814, 19 Cal.Rptr. 683 (1962); and People v. Courtney, 176 Cal.App.2d 731, 1 Cal.Rptr. 789 (1959).

Ganatta claimed when...