People v. Lewis

• Decision Date: 08 February 1978
• Docket Number: Cr. 30512
• Citation: 143 Cal.Rptr. 587,77 Cal.App.3d 455
• Court: California Court of Appeals Court of Appeals
• Parties: , 3 A.L.R.4th 1185 The PEOPLE, Plaintiff and Respondent, v. Joe LEWIS, Defendant and Appellant.

Page 587

143 Cal.Rptr. 587

77 Cal.App.3d 455, 3 A.L.R.4th 1185

The PEOPLE, Plaintiff and Respondent, v. Joe LEWIS, Defendant and Appellant.

Cr. 30512.

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

Feb. 8, 1978.

Hearing Denied April 6, 1978.

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, Jonathan B. Steiner and Nancy Ann Stoner, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Roger W. Boren, Deputy Attys. Gen., for plaintiff and respondent.

LILLIE, Acting Presiding Justice.

The court found defendant guilty of four separate counts of pimping (§ 266h, Pen. Code.) He appeals from the judgment.

In 1971 Susan, 17 years old, was picked up by defendant and taken to his apartment (210) at 960 South Oxford; thereafter she lived with defendant who was working as a "minister" and "door to door preacher." A month later defendant asked Susan to help him with the rent; he took her to Torchy's bar and, after talking to a man, told Susan to take him to their apartment and have sexual intercourse with him for $20; she did so, and from that time on continuously until February 1976, she worked as a prostitute for defendant giving him all of her earnings. Defendant instructed her how to be a prostitute giving her a "price list type thing," drove her to locations where she solicited customers, stood by while she picked up customers, showed her how to choose customers, arranged for her to take them to his apartment (210), paid the rent on this and other apartments to which she took customers, installed telephone service for solicitation, obtained identification for her in the name of his ex-wife because Susan was a minor and, for over a five-year period took from her all of her earnings as a prostitute. If Susan tried to hold out any money, defendant would give her a beating. Soon defendant quit his job as a "minister" and devoted all of his time to cards, pool, gambling and directing Susan's prostitution business. Susan kept a book of customer's names, phone numbers and other information, and continued to work steady seeing at least 15 to 20 customers a week; her business improved and her prices increased; twice she was arrested for prostitution and defendant bailed her out. During 1973 and 1974 Susan worked out of apartment 210 and turned all the money she received over to defendant; during 1974 she made approximately $28,000; two of her customers were James Henry and George Oshiro.

COUNT I charged defendant with pimping on August 1, 1974. This count refers to a cancelled check (Exh. 2) dated August 1, 1974, made out to $50 cash given by James Henry to Susan for an act of prostitution which check Susan turned over to defendant who endorsed it as "Paul Joseph." COUNT II charged defendant with pimping on July 31, 1975. This count refers to a cancelled check (Exh. 3) made out to $50 cash given to Susan by George Oshiro for an act of prostitution which check she turned over to defendant; it bears the endorsement, "Paul Joseph." COUNT III charged defendant with pimping on October 26, 1975. This charge refers to a cancelled check (Exh. 4) dated October 26, 1974, made out to $75 cash and given to Susan by Oshiro for an act of prostitution which check she turned over to defendant; it bears the endorsement, "Joe Lewis." Susan identified the endorsed signatures on the foregoing checks to be those of defendant. Between 1971 and 1976 defendant worked for six months as a Yellow Cab driver and as a bartender; during this time he held two separate driver's licenses in the names of "Paul Joseph" and "Joe Lewis" respectively.

In January 1975 defendant sent Susan to Fairbanks to engage in prostitution with men working on the Alaska pipeline; she made $2,000, $1,000 of which she sent to defendant, and personally gave him the remaining $1,000. During 1975 Susan made $32,000 in earnings as a prostitute, all of which she gave to defendant. One Evitz, a customer, bought Susan a 1975 Corvette and rented an apartment on South St. Andrews where they lived until November 1975; for her sexual services in 1975 Evitz paid her $20,000 all of which she gave in cash to defendant; defendant continued to maintain apartment 210, and an extension of the phone located there was placed in Susan's apartment on South St. Andrews; when a customer called for an appointment she told him to meet her at apartment 310 which defendant had rented for that purpose. In August 1975 defendant forced Susan to give him the pink slip to the Corvette; she continued to work as a prostitute for defendant, and after Evitz moved out, she moved with defendant into an apartment building on South Manhattan Place in November 1975; she continued to give him all of her earnings from prostitution.

COUNT IV charged defendant with pimping between January 7 and January 14, 1976. The evidence establishes that in January 1976 defendant sent Susan to Chicago to work a convention; between January 7 and January 14, she earned $1,200 as a prostitute and sent it all by Western Union to defendant.

On February 6, 1976 Susan left defendant and later turned over to police her identification, three years of day-to-day financial records and her "trick book." Her financial records disclose that during the five years she worked for defendant she had turned over to him all of her earnings from prostitution amounting to $150,000.

Defendant testified that he cashed checks Susan received from Oshiro and Henry because he had a bank account and she did not; he worked as a reverend, then as a bartender and finally for Yellow Cab. Basically he denied knowing Susan engaged in prostitution and denied she gave him any checks or money from prostitution or went to Alaska, he received any proceeds from any business in Alaska or any money from Susan in Chicago, they lived together in apartment 210 or that Susan ever "turned any tricks" there or that he ever struck her.

1] There is merit to appellant's contention that his conviction on all four counts charging separate acts of pimping cannot stand because only one continuous course of conduct is involved. At no time on the trial level did defendant raise this issue; however, the court at the close of the People's case in a gratuitous statement ¹ to counsel recognized the problem, as did the prosecutor, ² but it appears that both felt it could be solved at the time of sentence. Thus the court found defendant guilty on each count ³ and at the time for imposition of judgment and sentence suspended the proceedings and granted defendant five years probation ⁴ on certain terms and conditions.

Each of the four counts alleged in the language of the statute a violation of section 266h, Penal Code, and involved the same prostitute; they differ only as to date, but they fall within the period between 1972 and 1976. The pertinent portion of section 266h reads: "Any 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 . . . is guilty of pimping, a felony . . . ." The statutory language points up two considerations the section contemplates an ongoing continuous course of living or deriving support and maintenance from the earnings of a prostitute or proceeds of prostitution; and the gravamen of the offense of pimping is that course of conduct by one knowing the person supplying the earnings to be a prostitute. The record here establishes but one continuous criminal act committed by defendant between 1971 and 1976; however, this one violation was divided into four counts subjecting defendant to multiple convictions for the single offense of pimping.

Although involving different factual situations, the concept that a defendant may not be subjected to multiple convictions for only one criminal act is articulated in People v. Lyons, 50 Cal.2d 245, 275, 324 P.2d 556 (possession of several articles stolen from separate victims, single offense); People v. Smith, 26 Cal.2d 854, 858-859, 161 P.2d 941 (simultaneous receipt of three articles of stolen goods, single offense); People v. Bowie, 72 Cal.App.3d 143, 156, 140 Cal.Rptr. 49 (11 counts of possession of blank and unfinished checks, single offense); People v. Aresen, 91 Cal.App.2d 26, 37, 204 P.2d 389 (two counts of illegal sale of the same stock, single offense) and People v. Puppilo, 100 Cal.App. 559, 562, 280 P.2d 545 (unlawful possession of two pistols, one offense). People v. Neder, 16 Cal.App.3d 846, 94 Cal.Rptr. 364, relied on by the Attorney General, is distinguishable because it was a prosecution under the forgery statute (section 470, Penal Code); it was held that three separate forgeries on three separate sales slips charged on another's credit card constituted separate offenses. Defendant therein relied on the doctrine developed in theft cases whereby several takings may constitute one offense, but because of the language of section 470, the court refused to extend this to forgery. Said the court: "The essential act in all types of theft is taking. If a certain amount of money or property has been taken pursuant to one plan, it is most reasonable to consider the whole plan rather than to differentiate each component part. (Citation.) The real essence of the crime of forgery, however, is not concerned with the end, i. e., what is obtained or taken by the forgery; it has to do with the means, i. e., the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud. Theft pursuant to a plan can be viewed as a large total taking accomplished by smaller takings. It is difficult to apply an analogous concept to forgery. The designation of a series of forgeries...