People v. Kennedy

• Decision Date: 01 March 1962
• Docket Number: No. 7793,7793
• Citation: 19 Cal.Rptr. 683,200 Cal.App.2d 814
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorenzo KENNEDY and Mae Bell White, Defendants, Lorenzo Kennedy, Defendant and Appellant.

Page 683

19 Cal.Rptr. 683

200 Cal.App.2d 814

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lorenzo KENNEDY and Mae Bell White, Defendants Lorenzo Kennedy, Defendant and Appellant.

No. 7793.

District Court of Appeal, Second District, Division 1, California.

March 1, 1962.

John H. Marshall, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., and S. Clark Moore, Deputy Atty. Gen., for respondent.

FOURT, Justice.

This is an appeal from a judgment of conviction of assault with a deadly weapon in violation of section 245 of the Penal Code, and pimping in violation of section 226h of the Penal Code.

In an information filed on February 16, 1961, in Los Angeles County, the appellant and his codefendant Mae Bell White were charged with assaulting Alice Robertson on January 1, 1961, with a deadly weapon and in count 2 the codefendants were charged with pimping, in that the codefendants knowing Alice Robertson, a female person to be a prostitute, lived and derived support and maintenance from the earnings of her prostitution.

Appellant pleaded not guilty. In a trial without a jury appellant was found guilty as charged in counts 1 and 2. A motion for a new trial was denied. Probation was denied and appellant was duly sentenced. The appeal is from the judgment.

A resume of some of the facts is as follows: Alice Robertson in 1959 was 19 years of age and employed in a restaurant. Mae White came into the place of business where Alice was employed and talked with her. Later that same day Mae White and Alice Robertson met the appellant and talked with him with reference to prostitution. Appellant took Miss Robertson onto the streets with the codefendant White. The appellant told Alice Robertson that he wanted her to be his woman, that she would give him her money and he would pay the rents, take care of the bills and give her such money as she might need. Later that night Miss Robertson had several acts of prostitution. The codefendant White was with her and showed her the places where she could conduct her activities, advised her what to charge and how much she should pay for the rented room or rooms.

Later when Miss Robertson resided on Budlong Street the appellant paid the rent for her facility. Each night after Miss Robertson and the codefendant White completed their prostitution activities appellant would pick them up and take them to his house where the women would give to him the money which they had acquired during the evening. Miss Robertson gave the appellant, during the early part of 1959, more than $1000.00. Appellant also rented an apartment for Miss Robertson on 27th Street. She worked for the appellant through 1959 and 1960. In her work as a prostitute she obtained considerable sums of money and gave the same to the appellant.

Before January 1961 Miss Robertson went to the appellant's house to stay, where she continued to obtain money for the appellant from her work as a prostitute. On January 1, 1961, Miss Robertson told appellant that she wanted to leave and an argument ensued with reference to another girl in whom appellant was apparently then interested. Miss Robertson asked for the key to the back of the car so that she could secure some of her things and clothes from the car. Appellant apparently did not see fit to give Miss Robertson the key as she desired and she started through a doorway and he immediately commenced to throw certain things at her. She called the police. He had a stick and beat her upon the head with it. He also hit her in the mouth with his fist. She ran downstairs and was followed by the appellant. At the bottom of the stairs Miss Robertson fell down. She told the appellant that if he hit her again she was going to have him put in jail. The appellant called codefendant White and told her to beat the brains out of Miss Robertson. Codefendant White then took the stick which appellant had and struck Miss Robertson upon the head. As a result of the melee Miss Robertson had to have eight stitches taken in her head and lost a tooth. The police arrived and stopped the brawl. On January 2, 1961, an officer talked with appellant and asked appellant how he happened to become involved in the matter, to which appellant replied, 'Well, you know, Kelley, that we have to keep these girls in line.'

Appellant asserts that the evidence was insufficient to support the pimping charge, that the court erred in refusing to permit certain evidence to be introduced, and further that he was prejudiced by his own attorney's putting into issue the matter of trial counsel's integrity.

Appellant also contends that there was no showing made to the effect that he used the money which he received from Miss Robertson in his support and maintenance. There is no merit to the contention. See People v. Giambone, 119 Cal.App.2d 338, 340, 259 P.2d 10, 11, where it is stated:

'In order to establish that the accused lived and derived support and maintenance from the earnings of prostitution it is not necessary for the prosecution to prove that the money was expended for that purpose. People v. Navarro, 60 Cal.App. 180, 212 P. 403. It is not a defense that the accused had a sufficient income from other sources, People v. Coronado, 90 Cal.App.2d 762, 766-767, 203 P.2d 862, where it was said that opulent violators of the statute are certainly more odious than impecunious ones.' (See People v. Courtney, 176 Cal.App.2d 731, 740, 1 Cal.Rptr. 789.)

The appellant received considerable money from Miss Robertson, whom he knew to be a prostitute, and under the circumstances the evidence is sufficient to support the pimping charge.

We likewise think that there is no merit to the assertion by the appellant to the effect that the trial judge erred in treating certain hereinafter referred to matters as irrelevant and immaterial. During the cross-examination of Miss Robertson she was asked whether she had been in other fights. The court in effect sustained an objection to the question. It is the rule that when the evidence shows an attack on someone other than the defendant such evidence is not admissible. (People v. Keys, 62 Cal.App.2d 903, 912, 145 P.2d 589; People v. Wong, 83 Cal.App.2d 60, 69, 187 P.2d 828; People v. Soules, 41 Cal.App.2d 298, 305-306, 106 P.2d 639.)

The evidence under some circumstances may have been pertinent as to the codefendant White but it was not admissible as to appellant.

Counsel failed in his duty to point out to the court wherein such evidence was proper. (People v. Murdeck, 183 Cal.App.2d 861, 868, 7 Cal.Rptr. 293.) Furthermore in this case the witness answered the question in the negative before the objection was made and the answer was never stricken from the record.

While cross-examining a police officer counsel asked if Miss Robertson was booked following the disturbance here in question and the policeman answered in the affirmative. The officer was then asked if she was booked on a charge of assault with a deadly weapon and an objection was immediately made to such question and was sustained by the court. Counsel gave no reason as to why he wished such evidence to be introduced. If it was for the purpose of impeaching Miss Robertson by showing former arrests it was not proper. (People v. Hamilton, ...