People v. Pangelina, Cr. 20187

• Decision Date: 27 March 1981
• Docket Number: Cr. 20187
• Citation: 172 Cal.Rptr. 661,117 Cal.App.3d 414
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Leah PANGELINA and Debra Ann Frazier, Defendants and Appellants.

Page 661

172 Cal.Rptr. 661

117 Cal.App.3d 414

PEOPLE of the State of California, Plaintiff and Respondent, v. Leah PANGELINA and Debra Ann Frazier, Defendants and Appellants.

Cr. 20187.

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

March 27, 1981.

Daniel R. Marlow, Oakland, for defendant and appellant pangelina.

Quin Denvir, State Public Defender, Peter R. Stilte and Richard S. Kessler, Deputy State Public Defenders, San Francisco, for defendant and appellant Frazier.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Thomas A. Brady and Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

NEWSOM, Associate Justice.

The present appeal arises under the following circumstances.

An indictment returned by the Santa Clara Grand Jury on August 30, 1978, charged appellants and four named codefendants with conspiracy (Pen.Code, § 182) to keep a house of prostitution (Pen.Code, § 315). On September 13, 1978, appellants were arraigned, entered a plea of not guilty, and waived time; they did not, however, join with their codefendants in expressly reserving the right to demur.

On October 16, 1978, codefendant Gloria Washington made various pretrial motions, including motions for a postindictment preliminary hearing and to suppress, in which she was subsequently joined by appellants. On January 22, 1979, defendants' motions to set aside the plea and for a postindictment preliminary hearing were argued and submitted. ¹ The court denied the motions, reserving defendants' rights to withdraw the pleas for the purpose of demurring.

A subsequent hearing on the same motions was held on February 2, 1979. The motion to suppress was continued at defense counsel's request. In a memorandum decision filed February 8, 1979, the motion for a postindictment preliminary hearing and to withdraw pleas was granted as to all defendants except appellants, who had failed to "reserve a demurrer" at the time of entering their plea.

Following this ruling, on March 7 and 13, 1979, appellants Pangelina and Frazier, respectively, withdrew their previously entered time-waivers and demanded a trial within the statutory time. A trial was set and on March 20, 1979, various pretrial motions (none of which involved suppression of evidence), were unsuccessfully made and jury selection commenced. Subsequently appellants informed the court of a request for a ruling on a motion to suppress, and the court "reserved jurisdiction" to rule. On the following day, March 21, 1979, while jury selection was still in progress, the court ruled that appellants had waived their right to a suppression motion by failing to pursue it prior to trial. The jury was sworn on March 27, 1979; on that same date appellants renewed the motion to suppress, which was denied on the ground that appellants had failed to show newly discovered evidence as required by Penal Code section 1538.5, subdivision (h).

Appellants next moved for a mistrial on March 28, 1979, and again on March 29, 1979; both motions were denied. On April 5, 1979, the jury found appellants guilty of conspiracy.

A probation hearing was held on August 21, 1979. Appellants were both granted three years probation: Frazier's on the condition that she serve six months in county jail, and Pangelina's on the condition that she serve nine months in the county jail.

The essentially undisputed factual background reveals the following.

The prosecution resulted from an investigation, by the vice unit of the San Jose Police Department, of suspected prostitution at 345 East Williams Street in San Jose the investigation having followed a telephone call from Max Luy, manager of the building in which the illegal activities were allegedly occurring.

During the ensuing months police officers kept the building under surveillance. Little of significance was observed except that several women, including appellants, were seen leaving the premises with men.

Suspicious nevertheless, on April 26, 1978, Officer Ruibola placed a call to a telephone number listed in "Berkeley Barb" advertisement which he believed to be connected with prostitution. Ruibola was directed to a pay phone in the vicinity of 345 East Williams Street (hereinafter the building) and then to a fast-food restaurant to await a pick-up car which never arrived.

On June 2, 1978, Officer Raymond Ireland responded to another "Berkeley Barb" advertisement which read: "Looking for variety? Well, we have it and would like to entertain businessmen. Call Joy, 408-998-0706." He was directed to a phone booth in the vicinity of the building where he spoke with a woman whose voice was identified as that of codefendant Pamela McConnell. Ireland was told to go to apartment No. 305 (hereinafter referred to as the apartment) in the building.

Upon arriving, Ireland was met by codefendant Leah Pangelina and invited inside. ² Codefendant Gloria Washington, who appeared to be in charge, asked if he was a police officer and "frisked" him.

Ireland expressed a desire to "get laid" and chose codefendant McConnell. The two retired to a bedroom and agreed upon a price of $45, whereupon Ms. McConnell left the room and Ireland signaled to officers waiting outside. Officers Christie, Ruibola and Brown entered the apartment by kicking in the door. ³ Once inside, they took photographs of persons in various stages of undress, questioned the persons on the premises, and subsequently conducted a search. Items seized from the apartment during this search included a card-file with names and addresses of different men, condoms, and a receipt from the "Berkeley Barb" in Gloria Washington's name.

Also seized from a black satchel was a letterhead referring to two businesses: "Washington Enterprises" ("Ralph H." president), located in Berkeley; and "Funky Denims," located in Albany. In Gloria Washington's purse was found a county welfare envelope which contained an A.F.D.C. report listing "Funky Denims" as a source of income. A telephone listed in the name of "Freddie Washington doing business as Funky Denims No. 2, 320 Broadway Street in Oakland, California" had been used to call the apartment over 400 times between April 17, and June 2, 1979. Telephone records also revealed numerous calls made between (1) "Funky Denims" and a public telephone booth in downtown San Jose, and (2) the apartment and a phone listed to Ralph Washington. The identity and role, if any, of Ralph Washington, were never clarified.

Testimony was offered from the vice squad officers concerning prior observations of the defendants approaching men on San Jose streets, and in automobiles registered to Gloria Turner (an alias used by Gloria Washington), Ralph Washington and "Washington Enterprises." Max Luy testified that the apartment was rented to a "Gloria Turner." Additionally, various men, including those in the apartment at the time of the "raid," testified concerning sexual services which they had received from the defendants at the apartment.

On these and related facts, appellants were charged and convicted of conspiracy (Pen.Code, § 182) to keep a house of prostitution, a felony.

The substantive crime of keeping a house of prostitution is merely a misdemeanor. Penal Code section 315 in pertinent part provides: "Every person who keeps a house of ill-fame in this state, resorted to for the purposes of prostitution or lewdness, or who wilfully resides in such house, is guilty of a misdemeanor ; ..." (Emphasis added.) Appellants' first contention is that a conspiracy charge, making felonious conduct which was intended to be punished only as a misdemeanor, is improper.

Appellants concede, as they must, that it is generally proper to charge conspiracy even if in so doing the punishment invoked is more severe than that provided for the criminal conduct which is the objective of the conspiracy. (People v. Koch (1970) 4 Cal.App.3d 270, 276, 84 Cal.Rptr. 629.) Such a rule is based upon the notion that a conspiracy increases the likelihood that the criminal object will be successfully attained, and makes more likely the commission of crimes unrelated to the original purpose for which the combination was formed. (Callanan v. United States (1961) 364 U.S. 587, 593-594, 81 S.Ct. 321, 325, 5 L.Ed.2d 312.) "Thus wrongful conduct by such combination should be criminally punished even when the same acts would be excused or receive a lesser punishment when performed by an individual ; group criminal conduct calls for enhanced punishment, and society has a justifiable right and obligation to intervene at an earlier stage." (People v. Williams (1980) 101 Cal.App.3d 711, 721, 161 Cal.Rptr. 830, emphasis added.)

This general rule, however, is subject to an exception in the case law which precludes the use of a conspiracy charge to elevate criminal conduct to felony status where there appears an "affirmative legislative intent" to impose a lesser punishment or no punishment at all. (Hutchins v. Municipal Court (1976) 61 Cal.App.3d 77, 83, 132 Cal.Rptr. 158.)

Thus, in Gebardi v. United States (1932) 287 U.S. 112, 123, 53 S.Ct. 35, 38, 77 L.Ed. 206, the United States Supreme Court ruled that a woman could not be convicted of conspiracy to violate the Mann Act, based upon the language of a statute directed at "any person who shall knowingly transport ... any woman or girl for ... any ... immoral purpose." The court perceived in the failure of the Mann Act explicitly to condemn the woman's participation beyond her mere consent to being moved, evidence of an affirmative legislative policy to leave her acquiescence unpunished. Similarly, in In re Cooper (1912) 162 Cal. 81, 85, 121 P. 318, cited with approval in Gebardi, it was held that the legislative intent to punish only married persons for adultery (Pen.Code, § 269a) prohibited an unmarried person from being a conspirator or abettor in that offense. (See also People v. De...