People v. Murphy

Decision Date13 June 1963
Citation382 P.2d 346,59 Cal.2d 818,31 Cal.Rptr. 306
CourtCalifornia Supreme Court
Parties, 382 P.2d 346 The PEOPLE, Plaintiff and Respondent, v. Don M. MURPHY et al., Defendants and Appellants. Crim. 7224.

Harold Cutler, Gladys Towels Root and Eugene V. McPherson, Los Angeles, for defendants and appellants.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

SCHAUER, Justice.

Defendants Don M. Murphy and Dianna Kay Hargrove appeal from judgments of conviction entered upon jury verdicts finding each to be guilty of one count of pimping (Pen,Code, § 266h) and two counts of statutory rape (id., § 261, subd. 1). Defendants were sentenced to state prison on all three counts.

Defendants' principal grounds of attack are that the trial court committed prejudicial error (1) in denying their motion for a continuance by reason of surprise when the People amended the information in an assertedly material respect on the morning of trial, and (2) in unduly restricting the exercise of their right to cross-examine the complaining witness in relation to matters vital to their defense. The record substantiates these contentions, and we have concluded that the judgments of conviction should be reversed.

The nature of defendants' contentions makes it necessary to summarize first the evidence taken at the preliminary examination. The materiality of that evidence in resolving the issues on appeal will become readily apparent as the case develops.

The sole witness at the preliminary was Pamela Louise Laron, the 17 year-old complainant. She testified that in June 1960 a man named Al Le Tate introduced her to the defendants at the Seneca Apartments; that defendants proposed to her that she engage in prostitution for them; that she answered she 'knew nothing about prostitution,' but they said they would tell her what to do, where to go, and how much to charge. Miss Laron then told of committing five specific acts of prostitution assertedly arranged for her by defendants, and testified that she gave the receipts therefrom to defendants. The first act, she said, was committed with one Jim Prince at the Sunset Towers, for $100; the second with one Jim McDonald at the Beverly Hills Hotel, for $35. Miss Laron testified in detail as to the circumstances of each of these acts, relating how defendant Hargrove arranged the appointment, how one of the defendants drove her to and from the place of assignation, and how she paid over the proceeds to defendants. (As will hereinafter be more fully discussed, none of this testimony was true.) Miss Laron went on to testify that the three other asserted acts of prostitution were committed with men whose names she did not remember, but that each act took place at defendant's apartment where she lived for several weeks. On cross-examination Miss Laron at first denied but then admitted that she had worked as a prostitute before meeting these defendants.

By information defendants were charged in Count I with pimping and in Count II with pandering. Defendants' motion to dismiss (Pen.Code, § 995) was granted as to the latter count, and the People filed an amended information charging defendants in Count I with pimping and in Counts II and III with statutory rape. Count II charged that 'on or about the 1st day of July, 1960' defendants did 'aid and abet Jim Prince to have and accomplish an act of sexual intercourse with' Miss Laron, who was then 17 years old; Count III charged that 'on or about the 3rd day of July, 1960' defendants did 'aid and abet Jim McDonald' to commit the same crime with Miss Laron. Defendants entered pleas of not guilty to each count.

At the time the cause was called for trial, however, the district attorney moved to further amend the information by striking from Count II the name of Jim Prince and inserting in lieu thereof the words 'John Doe William,' and by striking from Count III the name of Jim McDonald and inserting in lieu thereof the words 'John Doe Bob.' The amendment was allowed over defendants' strenuous protest, and defendants' motion for a continuance by reason of surprise was denied. The court ordered the trial to proceed forthwith and it did without even the procedural incident of an arraignment on the information as thus materially amended.

As well as having starred at the preliminary examination, Miss Laron was the People's principal witness at the trial. She testified that defendants were told she was 17 years old at the time she was introduced to them, but that defendants said 'they were still going to try me' even though she was a minor; that they had her hair dyed platinum blonde and bought her some clothes 'that made me look older and more presentable'; that defendant Hargrove (an admitted prostitute) then displayed her 'trick book' containing listings of customers ('tricks') and told Miss Laron that she 'was never to try to get a client of (her) own' but 'must always work through them'; and that defendants provided her with room and board and spending money.

According to Miss Laron's trial testimony the first act of prostitution for defendants took place on July 14, 1960; however, it was not at the Sunset Towers for $100 but, rather, at the Statler Hilton Hotel for $25. In details substantially as elaborate, but by no means identical with those given at the preliminary hearing, Miss Laron testified that defendant Hargrove made the arrangements and told her to go to Room 39 of the Statler Hilton Hotel; that defendant Murphy drove her to the appointment; that she met the customer in Room 39 and that his first name was 'William' but she could not remember his last name; that 'William' paid her $25 after completion of the act; and that she was later met by defendant Murphy and gave him the $25. The witness then testified that shortly thereafter she committed three acts of prostitution arranged by defendants at the latter's apartment: i. e., with a young man named 'Bob,' with another young man whose name she could not remember, and with 'a fat man,' each of whom paid her $20 which she gave to defendant Hargrove.

On redirect examination Miss Laron admitted that at the preliminary examination she had become 'confused' and had given untrue testimony in stating that she had met defendants in June 1960 (it was actually in the middle of July), had lived with them at the Seneca Apartments (it was actually at the Franklin Towers), and at their instigation had committed acts of prostitution with Jim Prince and Jim McDonald; the latter acts, she acknowledged, were actually committed by her before she met these defendants.

Defendant Hargrove took the stand in her own behalf and denied the essential elements of Miss Laron's story; in particular, she denied arranging acts of prostitution for the latter, or taking the proceeds of any such acts. Defendant Hargrove testified that Miss Laron, who had run away from home, had been living with her (defendant Hargrove's) neighbors, Lisa and Dion Diamond; that the latter had a very small apartment, and as a favor to them she agreed to let Miss Laron move in for a few days until she could find herself a place to live; that Miss Laron stayed with her for about a week, then left for a while, then returned for a few days more. Defendant Hargrove testified that Miss Laron 'was not with me continuously. She was there, maybe she would come in for one day and clean up, and put on some fresh clothing, and she would go out with her she had several boy friends when she was with me, young men, and they would come by and pick her up. I never seen them, but I seen them pick her up in the car downstairs, and she would go out, and sometimes she wouldn't be back, and sometimes it would be half a day, sometimes a day, and sometimes longer.' Defendant Hargrove also testified that she bought Miss Laron some inexpensive clothes, some makeup, and a new hairdo, but explained that Miss Laron had only one suit of clothes when she met defendants and 'had been complaining about (the fact that) her hair looked terrible.' The witness further acknowledged giving Miss Laron the name of her bail bondsman, as well as advice on personal hygiene, but explained that she did so because Miss Laron 'was running around with' a number of men at the time and 'told me she went to the beach and would pick up a man on the beach and go home and sleep with him * * *.'

Allen Harmon, security officer of the Statler Hilton Hotel, testified that there is no room number at the hotel corresponding to that given by Miss Laron (Room 39) as the site of her act of prostitution with 'William' assertedly arranged by defendants.

The jury found defendants guilty on all three counts charged in the amended information. Not until that time does it appear to have been discovered that defendant Hangrove was only 16 years old. 1 She was thereupon certified to the juvenile court (pursuant to Welf. & Inst.Code, § 825, now § 603), but that court found her 'not a fit subject for consideration' under the Juvenile Court Law and remanded her to the superior court for further proceedings in the criminal action. Her motion for new trial was denied, as was that of defendant Murphy. On the statutory rape counts the jury had recommended (pursuant to Pen. Code, § 264) imprisonment of each defendant in state prison rather than county jail. The jury, of course, had not known defendant Hargrove's true age; and the prosecuting attorney himself stated that 'had I been aware of her age at the time of the trial, your Honor, in all probability I would not have recommended that the jury return a penalty as to state prison as to her.' Nevertheless the court sentenced each defendant to state prison on all three counts; and when the court was requested to refer defendant Hargrove to the Youth Authority (as she qualified for such consideration under Welfare and Institutions Code section 1731.5), the motion was denied...

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