People v. Hill
| Decision Date | 19 March 1980 |
| Docket Number | Cr. 34488 |
| Citation | 163 Cal.Rptr. 99,103 Cal.App.3d 525 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Donald Alex HILL, Defendant and Appellant. |
Thomas F. Coleman, Los Angeles, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Ellen Birnbaum Kehr, Deputy Attys. Gen., for plaintiff and respondent.
JEFFERSON, * Associate Justice.
In count I of an information, defendant was charged with the felony offense of pimping, committed on January 27, 1978, in violation of Penal Code section 266h. It was alleged that the pimping offense had been committed by defendant in knowing that Eugene Griswald was a prostitute and then willfully and unlawfully living and deriving support and maintenance in whole and in part from the earnings and proceeds of Griswald's prostitution. In count II of the information, defendant was charged with the felony offense of pandering, committed on the same date in violation of section 266i of the Penal Code. It was alleged that the offense of pandering was committed by the defendant willfully and unlawfully procuring Eugene Griswald, a male person, for purposes of prostitution.
Defendant entered a plea of not guilty and was tried by a jury. The jury found defendant guilty as charged in both counts of the information. Proceedings were suspended and defendant was granted probation for three years subject to certain specified terms and conditions including spending the first 90 days in county jail. Defendant has appealed from this judgment of conviction.
Defendant primarily advances two contentions with respect to errors committed below. One contention is that the jury instructions given by the court were inadequate and erroneous and that the trial court had a duty, sua sponte, to give adequate instructions. The second contention advanced by defendant is to the effect that he received inadequate assistance of counsel by reason of the failure of defense counsel to request any instructions at all or to object to the erroneous and inadequate instructions given.
I
The Factual Background
On the date in question, Peter Waack was a member of the Los Angeles Police Department and was working as an undercover vice officer. Upon receiving certain information from Police Officer Samprone, Waack looked at an advertisement in the Advocate newspaper, a publication sold in newspaper vending machines, adult book stores and adult theaters. The advertisement started off with the phrase, "warm, wet and wild," and stated the name "Don" with a phone number listed for a nude photograph. About 7:30 p. m., Waack called the phone number indicated in the advertisement. The phone was answered and Waack stated he wanted to speak to Don. The individual answering the phone said that he was Don. Waack indicated that his name was Peter; Don's response was "(o)h yes, Tim had told me you were going to call."
Don then asked Waack if he was interested in obtaining a young 15-year-old boy. Waack said he was interested. Don indicated that it was expensive and would cost $300. Waack replied that the price was satisfactory. Waack advised Don that he was staying at the Marriott hotel at the airport and gave Don his room number and telephone number. Don indicated that he had a friend that he would bring to Waack's hotel room that evening.
Around 9 p. m., the phone rang in Waack's room at the Marriott hotel. Waack answered and the caller identified himself as Don. Waack recognized the voice as being the same as the voice in the earlier telephone call to the number contained in the advertisement. Don indicated that he would have to drive to the Valley to pick up his friend who was named Gene. Don said that he would bring Gene to Waack's room, but it would be at approximately 11 p. m. About 11 p. m., the phone rang in Waack's room and the voice on the other end of the phone again identified himself as Don and said that he would be there in about 30 minutes.
Shortly thereafter there was a knock on Waack's door. Waack opened the door and the individual at the door stated that he was Don. Waack identified Don as Donald Hill, the defendant. Defendant entered the room and requested the $300. Waack indicated that he would not pay the money until he saw the individual who was to be brought to him, fearing otherwise that it would be a rip-off. Defendant told Waack that his friend Gene knew what he would be required to do and that he knew what to do sexually, but that he did not care for S & M 1 and beatings.
Defendant then left and returned shortly with a young man who was introduced as Gene, whose true name was Eugene Griswald. It was established that Griswald was 17 years of age at the time. Griswald sat in a chair while defendant and Waack went into the bathroom. Waack testified that he again stated his qualms to defendant about being ripped off and that defendant told him not to worry, that Gene knew what to do sexually but simply didn't care for S & M and the beatings. Waack and defendant then returned to the room and, in the presence of Griswald, Waack handed $300 to defendant. Defendant then left, stating that he would be back after one hour to pick up Gene.
After defendant left, Waack asked Griswald what he would do, and Griswald replied that he would engage in an act of oral copulation and an act of sodomy. Griswald then started to get undressed. By prearranged signals, other officers who were in the hotel came forth and arrested defendant in the hallway, and then came into Waack's room and placed Griswald under arrest.
Defendant's defense was to the effect that he had received a telephone call from Tim Stiller before Waack's call, indicating that Stiller had a friend named Peter who was staying at the Marriott hotel and that defendant should send over someone young-looking that would be used as a model for a photo session and nothing else. Defendant then called Griswald for the purpose of having him be a nude model for photographs to be taken by Peter. Defendant denied telling Waack that Gene knew what to do sexually. Defendant stated that he told Griswald over the phone that he was wanted for a nude photo session and would receive $40 for his services as a model.
Griswald was called as a witness by the prosecutor and testified that defendant had called him to be a model for photographs to be taken in the nude. Officer Samprone testified that, after his arrest, Griswald waived his Miranda rights and stated that, when defendant called him and said he had a job for him, it meant that he was to have sex with someone in the hotel room. Officer Samprone also testified that Griswald stated that he was to receive $40 for his services that evening.
II
The Question of Whether the Instructions Were Erroneous and Inadequate
The trial judge gave the following instruction defining the offense of pimping: "Every person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of such person's prostitution, or who solicits or receives compensation for soliciting for such person, is guilty of pimping." This instruction was substantially in the language of Penal Code section 266h. 2
In addition, the court gave an instruction defining the term "prostitution" used in Penal Code section 266h without explanation as including "sexual intercourse, sodomy oral copulation, or other lewd or dissolute acts between persons in return for money or other consideration." (Emphasis added.) The trial court also gave instructions defining oral copulation and sodomy. However, no instruction was given defining "other lewd or dissolute acts" the terms used in the instruction defining "prostitution."
Defendant advances the argument that the instruction defining pimping was misleading. Defendant asserts that the instruction defining the offense of pimping was so ambiguous that the jury may well have considered that the offense of pimping had been committed if the only act committed by defendant was that of soliciting a customer for Griswald without receiving any compensation for such solicitation or attempting to receive any compensation therefor.
Defendant makes reference to the phrase in the instruction that one commits the offense of pimping "who solicits or receives compensation for soliciting for such person" (a prostitute). In People v. Smith (1955) 44 Cal.2d 77, 79, 279 P.2d 33, 34, the court points out that this phrase is properly interpreted to limit commission of the offense of pimping through solicitation to a "soliciting compensation for soliciting for a prostitute, and not by merely soliciting a customer." Undoubtedly, the jury in the case at bench might well have interpreted the pimping instruction given by the trial court as creating an offense for merely soliciting a customer for Griswald without receiving or expecting compensation.
It was thus error for the trial court not to expand upon the pimping instruction by pointing out that, for soliciting a customer for a prostitute to constitute the offense of pimping, a defendant had to solicit compensation for his service of solicitation. But in the instant case, as in the Smith case, the evidence clearly established that defendant received compensation for any solicitation of the customer Waack for Griswald as a prostitute. Hence, the failure of the trial court to further define the offense of pimping constituted a nonprejudicial error.
There was little danger in the case at bench that the jury would consider that the prosecution had established the first alternative of the pimping offense against defendant that defendant was a person who with knowledge that Griswald was a prostitute, lived, or derived support from the earnings of Griswald's...
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