People v. Martin

• Court: California Court of Appeals
• Writing for the Court: HERNDON; FOX, P. J., and ROTH
• Citation: People v. Martin, 228 Cal.App.2d 677, 39 Cal.Rptr. 669 (Cal. App. 1964)
• Decision Date: 27 July 1964
• Docket Number: Cr. 9435
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kim MARTIN, Defendant and Appellant.

Page 669

39 Cal.Rptr. 669

228 Cal.App.2d 677

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kim MARTIN, Defendant and Appellant.

Cr. 9435.

District Court of Appeal, Second District, Division 2, California.

July 27, 1964.

Bazar & Epstein, Ira S. Epstein, Beverly Hills, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Rose-Marie Gruenwald, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

Defendant appeals from the judgment entered against her following a nonjury trial wherein she was convicted of the crime of pandering in violation of section 266i of the Penal Code.

The information upon which the prosecution was based charged defendant in substantially the same language found in subsection (c) thereof, i. e., that defendant did procure an identified female person 'a place as inmate in a house of prostitution.' This subsection also proscribes the procuring for a female person a place 'as an inmate of any place in which prostitution is encouraged or allowed within this State; * * *.' (Emphasis added.)

Although defendant makes passing argument in support of her contention that certain evidence was obtained as the result of an illegal search and seizure, this assignment of error is so wholly devoid of merit that we may dispose of it in summary fashion. First, no objection to the evidence was made upon this ground in the trial court, and, therefore, error in its admission cannot be urged for the first time on appeal. Secondly, no evidence was introduced which tended to indicate that the officers had no warrant for the arrest or search, and, in the total absence of any such evidence, it will be presumed on appeal that the arrest and search were lawful. Finally, contrary to appellant's bald and unsupported assertion, a search incident to a lawful arrest is still legally permissible in California.

While defendant's second and primary assignment of error challenges the sufficiency of the evidence, it is clear that the only actual issue presented is the following: May a person be convicted of the crime of pandering when the acts of prostitution were committed in the prostitute's own apartment?

The evidence, which is essentially without conflict, establishes that a woman, hereafter referred to as 'Mary', advised a male acquaintance that she was in urgent need of money to enable her to visit her child who was seriously ill in an eastern state. She knew from a prior incident that this man probably could secure her entree into the industry of the prostitute and she indicated her willingness to engage in that profession.

This man took her to the defendant's residence where she again expressed her need for money and her willingness 'to work'. Defendant told Mary, 'You know that my cut--the cut is 60-40.' Mary agreed to this whereupon appellant took her telephone number, asked her when she wanted to work and then told her that she would call her. She called Mary three times that day; told her on each occasion that she was sending a man over, described him and what he was going to do and how much he was going to pay.

Later that day, after Mary had performed an act of sexual intercourse with each of these men, she met with defendant and gave her the agreed share of the money received. Defendant told Mary that she would have more work for her, but Mary left town and performed no further services as a prostitute. At the time of defendant's arrest in her apartment several 'trick books' were found. ¹

In her brief, appellant asserts that Mary 'was not compelled in any way to go to a house maintained by the defendant and it is respectfully submitted that such evidence is required to support a conviction thereunder.' If by this statement, appellant intends to indicate her belief that some form of mental or physical compulsion is a necessary element of the crime of pandering, such belief, of course, is mistaken. The applicable law is stated in the following quotation from People v. Montgomery, 47 Cal.App.2d 1, 12-13, 117 P.2d 437:

'Appellant also takes exception to the trial court's instruction to the effect that under the provisions of the pandering statute, if the evidence discloses that defendant acceded to the importunities of a wanton woman and at her request found her a place in a house of prostitution, the defendant is just as guilty of the offense of pandering as though he had induced...