People v. Love

• Citation: 168 Cal.Rptr. 591,111 Cal.App.3d Supp. 1
• Decision Date: 15 August 1980
• Docket Number: Cr. A
• Court: California Superior Court
• Parties: 111 Cal.App.3d Supp. 1 THE PEOPLE, Plaintiff and Respondent, v. Ruby Jean LOVE, Defendant and Appellant. 17102. Appellate Department, Superior Court, Los Angeles County, California

Page 591

168 Cal.Rptr. 591

111 Cal.App.3d Supp. 1

THE PEOPLE, Plaintiff and Respondent, v. Ruby Jean LOVE, Defendant and Appellant.

Cr. A. 17102.

Appellate Department, Superior Court, Los Angeles County, California.

Aug. 15, 1980.

Peter A. Ross, for defendant and appellant.

Burt Pines, City Atty., Rand Schrader and Betzi E. Franklin, Deputy City Attys., for plaintiff and respondent.

PROCEDURAL FACTS

BIGELOW, Acting Presiding Judge.

In a consolidated complaint defendant was charged with two counts of violation of Penal Code section 647, subdivision (b) (solicitation of an act of prostitution); count I alleged the date of that occurrence as September 30, 1978, and count II the date of the second occurrence was alleged as October 17, 1978. Before commencement of trial, defendant admitted an alleged prior conviction of violation of Penal Code section Facts: Count I (Sept. 30, 1978):

647, subdivision (b). The jury was unable to agree on a verdict on count II and a mistrial was declared. Defendant was found guilty on count I and thereafter was sentenced. Defendant appeals from the judgment. We reverse.

A police officer testified that while working the vice detail in the Hollywood area he was in plain clothes, driving an unmarked police vehicle; that the defendant was the driver of another vehicle, and that there was another female in that car as a passenger; that about 4:20 a. m. on September 30, 1978, defendant pulled her car up along side of his vehicle and asked him if he was looking for a "date." There followed, according to the police officer's testimony, a conversation between the defendant and him that finally evolved to the point that defendant stated the asking price of $75 for an act of sexual intercourse. Defendant and her female companion were arrested for solicitation of an act of prostitution (Pen.Code, § 647, subd. (b)).

Count II (Oct. 17, 1978):

A police officer of Japanese descent, working undercover as a part of the "Asian Task Force," testified that at 11:15 p. m. on October 17, 1978, he was in plain clothes at the corner of San Pedro and First Streets when a car honked at him and pulled up along side of him; defendant was the passenger and another female was driving; defendant asked him if he would like to engage in sexual acts and touched the officer in his groin area. According to the officer's testimony, defendant asked him how much money he could give and he stated, in feigned broken English, that money was no problem. He testified that the two women agreed to meet him and a friend in the parking lot of the Otani Hotel, located at 120 South Los Angeles Street in downtown Los Angeles, later that evening. The officer further testified that he met defendant and her female companion as planned and that they went with him to his hotel room in the Otani Hotel; that he had $220 in marked bills; that defendant told him it would cost $100 for her and $100 for her friend, to which he agreed. The officer testified that he told the women to relax, put his jacket containing a wallet with the marked bills on the bed as "bait," went into the bathroom and took a shower; that while in the bathroom he talked on the telephone to his fellow officers about what had happened; that when he left the bathroom he found the women gone and his money missing from his wallet. He further testified that he found that his fellow officers had arrested the two women outside of his room, and that they brought them back into the room where the officers seated the women on the couch; that later the missing marked money was found behind that part of the couch where defendant had been seated. Defendant was arrested for grand theft (Pen.Code, §§ 484, 487), but was later charged only with solicitation of an act of prostitution (Pen.Code, § 647, subd. (b)).

Defendant's Testimony

Defendant testified that as to the incident in count I (Sept. 30, 1978), the police officer mixed up part of what he claims she said to him with what her female passenger actually said to him and vice versa. She further testified that while she did flirt with the police officer she did not solicit him to engage in sex for money.

As to the incident in count II (Oct. 17, 1978), she testified that she and a different female companion did have a conversation with that police officer, did agree to meet him later at the Otani Hotel, and did go up to his room with her female friend. She did overhear some talk about money between her female friend and the officer. She further testified that when the officer went in to take a shower, she was scared, the two of them left the room and were arrested outside. She said that her female friend secretly told her she had taken the officer's money. Defendant denied that at any time during this incident she had solicited that police officer to engage in sex for money.

People's Rebuttal Testimony

Before the trial began, defendant admitted a prior conviction of solicitation for an act of prostitution (Pen.Code, § 647, subd. (b)) which was alleged in the consolidated complaint. Penal Code section 1025 then provides that the charge of the previous conviction must not be read to jury, nor alluded to at the trial. At the time defendant admitted the prior conviction her attorney also objected to the People going into the defendant's prior record. The trial court responded that the defendant admitting the prior conviction does not preclude the People "from going into the prior convictions, and prior scheme and plan and intent are part of the crimes." Upon defendant's further objection to the People bringing in any prior conviction, the trial court responded "He cannot allude to the conviction, only produce testimony concerning what happened underlying that particular event."

After defendant testified, the defense rested its case. The reporter's transcript of the oral proceedings contains the following: "(A conference was had at the bench to discuss the People's rebuttal evidence of prior events, which evidence was ruled admissible)." The record on appeal does not reveal the contents nor the details of this conference. From this entire record we hold that the defendant properly objected to the proposed rebuttal testimony by the People, which consisted of the testimony of Police Officer Day. His testimony followed immediately after the conference referred to above.

Police Officer Day testified that on the eighth day of December 1977, he was the police officer in charge of the Hollywood vice detail. He stated that approximately 10 p. m. that evening he was supervising an undercover police vice operation in the Hollywood area near Sunset Boulevard and Mansfield Avenue. He testified that while he and a deputy city attorney were walking on Sunset Boulevard they were met by defendant and another female individual, both of whom were also walking. He further testified to a conversation between defendant and himself which finally resulted in defendant soliciting him for money (at least $20) for an act of sex. He arrested defendant for a violation of Penal Code section 647, subdivision (b).

Error in Admitting Evidence of Prior Uncharged Crime:

This error as a ground of appeal is not raised by appellant in the engrossed statement on appeal. Nevertheless, it does appear to the satisfaction of this court that the record on appeal (which includes the reporter's transcript of all of the oral proceedings had in the trial court) fairly and fully presents the evidence and other proceedings necessary for a decision thereon. (Cal. Rules of Court, rule 184(b).) As part of the instructions to the jury, the trial court gave a modified version of CALJIC No. 2.50 (Evidence of Other Offenses) (3d ed.) wherein he limited the purpose for which such evidence was received and for which it might be considered by the jury. The jury was instructed that such evidence could be considered only in determining if it tends to show "one or more of the following:

"(1) the identity of the person who committed the crime, if any, of which the defendant is accused;

(2) a motive for the commission of the offense;

(3) the existence of the intent which is a necessary element of the crime charged in this case; or,

(4) a characteristic method, plan or scheme in the commission of the acts in this case."

The trial court was correct in recognizing the existence of the restrictive rule as to limited admissibility of other crimes evidence. Such evidence is highly prejudicial and the general rule is that it must be excluded. (People v. Thomas (1978) 20 Cal.3d 457, 464, 143 Cal.Rptr. 215, 573 P.2d 433.) The exceptions which allow admissibility "Evidence Code Section 1101, subdivision (a) provides generally that evidence which establishes a person's character or trait of character such as evidence that a person has committed crimes or acts of misconduct on certain occasions, is inadmissible when offered to prove his conduct on a specified occasion. However, subdivision (b) of Evidence Code section 1101 provides for the admissibility of character trait evidence in the form of evidence of wrongful acts or crimes committed by a person on various occasions if such evidence is relevant to prove some fact other than such person's disposition or propensity to commit such acts. The nature of these other facts as relevant facts to be proved apart from the fact of the person's propensity or disposition to commit such criminal acts is not described in subdivision (b) of Evidence Code section 1101 except by way of illustrations "such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"; such a listing is obviously not intended to be all-inclusive.

of other crimes evidence are few in number and are set forth in the Evidence Code as interpreted by judicial decisions of the appellate courts. These principles are clearly and skillfully set forth in People v. Thompson (1979) 98 Cal.App.3d 467, at page 474, 159 Cal.Rptr. 615, at...