People v. Pogre

• Decision Date: 03 November 1986
• Docket Number: No. 1748,1748
• Citation: 188 Cal.App.3d Supp. 1,234 Cal.Rptr. 590
• Court: California Superior Court
• Parties: 188 Cal.App.3d Supp. 1 The PEOPLE, Plaintiff and Appellant, v. Catherine Lynn POGRE, Defendant and Respondent. Crim. A. Appellate Department, Superior Court, Santa Clara County, California

Page 590

234 Cal.Rptr. 590

188 Cal.App.3d Supp. 1

The PEOPLE, Plaintiff and Appellant, v. Catherine Lynn POGRE, Defendant and Respondent.

Crim. A. No. 1748.

Appellate Department, Superior Court, Santa Clara County, California.

Nov. 3, 1986.

As Modified March 27, 1987.

Leo Himmelsbach, Dist. Atty., and Hilda D'Esopo, Deputy Dist. Atty., for plaintiff and appellant.

Doron Weinberg and Larson & Weinberg, San Francisco, for defendant and respondent.

CHAPMAN, Presiding Judge.

Statement of the Case.

Defendant, Catherine Pogre was charged in the Municipal Court, Santa Clara County Judicial District with a violation of Penal Code section 647(b), which provides: "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: ... One who solicits or who engages in any act of prostitution. As used in this subdivision, 'prostitution' includes any lewd act between persons for money or other consideration." She was also charged with having suffered a prior conviction for the same offense.

A jury trial was conducted commencing on May 13, 1985, and on May 15, 1985, the prosecutor rested. The court thereupon granted defendant's motion for a judgment of acquittal pursuant to Penal Code section 1118.1, which provides: "In a case tried before a jury, the court on motion of the defendant ... at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."

Thereafter, on June 12, 1985, the defendant moved to seal all records of the arrest and prosecution pursuant to Penal Code section 851.8, subdivision (e). ¹ Without hearing any additional evidence, and apparently basing its decision on the trial record, the trial court granted the motion and ordered all records of the arrest and prosecution to be sealed. The district attorney appeals this order. ²

The issues on appeal were briefed by the parties, and oral arguments were heard on May 1, 1986. The matter was thereupon ordered submitted for decision. Thereafter, upon consideration of the briefs, we noted that the defendant takes the position that the trial court's decision was based on its assessment of the evidence presented at the trial, and that the prosecutor had not presented this court with a transcript of the trial. Therefore, we set aside our order submitting the matter and ordered the record augmented to include the trial transcript. We have reviewed that transcript, and set forth herein our understanding of the evidence adduced at the trial, and again ordered the matter submitted for decision.

Statement of Facts.

Officer George, of the San Jose Police Department, was assigned to the vice unit to investigate escort agencies dealing in prostitution. On February 13, 1984, Officer George responded to an advertisement in the yellow pages of the phone book advertising a service called the "Empress Escorts".

In preparation Officer George went to the EZ-8 motel and reserved two adjoining rooms. Officer George planned to use one room supported by a radio transmitter, and to have back-up officers in the other. He then made a telephone call to Empress Escorts. A female answered the phone and informed him that the escort services would cost $160 per hour, and asked the caller his name and address. The female ended the conversation by saying someone would call shortly. ³

A few minutes later, another female called and asked directions to the motel. She gave her name as Melissa, and gave a description of herself. Forty minutes later the second female called again and said her car had broken down. Officer George then drove an undercover police car to pick her up. He identified defendant, Catherine Lynn Pogre, as the person he picked up and drove back to his motel.

The defendant, Catherine Lynn Pogre, is a lawyer with a prior conviction for soliciting an act of prostitution.

Once in the room defendant asked Officer George for some identification. He showed her a card without a picture. She then demanded to see an identification card with a picture. Officer George refused, saying it would give her the means for blackmail. She continued to demand to see an identification with a picture. He again refused and asked her to leave.

At the door defendant said she knew he was not a cop, but that he was acting like one. He invited her back in to talk about it. When he closed the door she asked him for the $160 cash, which he gave her in city funds. Defendant then told Officer George to take his clothes off, because cops did not like to take their clothes off. Officer George then went into the bathroom, took his clothes off, wrapped a towel around himself and came out. At this point he found defendant on the telephone and heard her say: "Yes, he has I.D." Defendant then took her clothes off.

Officer George asked defendant what she did best. She responded by saying: "Whatever you like." or "What do you like best?" Officer George then asked defendant what she didn't like to do. She then asked him the same question. He said: "Well, I would like to get laid." Officer George added that he may have said he wanted sexual intercourse. The defendant said: "O.K., give me a hug," and walked toward him with her arms open.

At this point Officer George gave his cover signal, and the other officers entered and identified themselves as police. Defendant thereupon yelled: "You mother fucker!" and ran toward Officer George, trying to hit and kick him. Defendant was then arrested.

After the arrest they took defendant's picture in the nude, and searched her belongings. In her purse they found the $160 in city funds, a condom, a pager, and a credit card printer.

The district attorney rested on this evidence, and it was on this evidence, that the trial court granted defendant's motion pursuant to Penal Code section 1118.1, and ordered the clerk of the court to enter a judgment of acquittal. And it was on this evidence, apparently, that the trial court later found defendant to be factually innocent of the charge.

Statement of Law.

Defendant contends that the trial court's decision in this matter is binding on the Court of Appeal, and that a judgment of acquittal justifies the trial court in ordering the record to be sealed. Defendant further contends that the procedures, and burdens of proof set forth in section 851.8, subdivision (b) are inapplicable in such a case. We disagree as to each contention.

Defendant does not have a constitutional right to have the record sealed. Whatever his right, it is based entirely on statute. (Loder v. Municipal Court (1976) 17 Cal.3d 859, 132 Cal.Rptr. 464, 553 P.2d 624.) The Loder court lists the many reasons why public interests are served by maintaining accurate records of arrests and prosecutions, (ibid. pp. 864-868, 132 Cal.Rptr. 464, 553 P.2d 624) and concludes, on page 868, 132 Cal.Rptr. 464, 553 P.2d 624: "Taken together, the multiple purposes for which police, prosecutors, courts and probation and parole authorities may consult records of arrests not resulting in conviction thus constitute a substantial governmental interest."

Penal Code section 851.8, subdivision (e), relied upon by the trial court authorizes relief whenever a person is acquitted of a charge only when it appears to the trial judge that the defendant was factually innocent of the charge brought to trial. The procedures for determining whether defendant is factually innocent are set forth in section 851.8, subdivision (b). Despite defendant's contention to the contrary, given the substantial governmental interest involved, as discussed in Loder v. Municipal Court, supra, 17 Cal.3d 859, 132 Cal.Rptr. 46, 553 P.2d 624, we believe a statute setting forth a uniform procedure, and apportioning the burden of proof, to be most desirable. Section 851.8, subdivision (b) provides that the determination of factual innocence is not to be determined on the trial record alone, but the trial judge may also consider declarations, affidavits, police reports, or any other evidence submitted by the parties which is material, relevant and reliable. Furthermore, the statute specifically provides that evidence which might otherwise be considered illegally seized and subject to suppression under Penal Code section 1538.5 is admissible on the issue of factual innocence. In our opinion, evidence excised from the police reports as a sanction for destruction of the tapes, should likewise have been admissible on the issue of factual innocence. In any event, the statutory procedure set forth in section 851.8, subdivision (b) is well designed to present the issue in an orderly manner.

The statute, and case law, leave no room for a conclusion that an acquittal, per se, entitles the accused to have the record sealed. In People v. Glimps (1979) 92 Cal.App.3d 315, 321, 155 Cal.Rptr. 230, the court said: "The language of section 851.8 is unambiguous. Two specific requirements are imposed: (1) there must have been an acquittal, and (2) it must appear to the judge 'presiding at the trial wherein such acquittal occurred that the defendant was factually innocent of the charge.' It is clear that acquittal is one condition of such relief but that not all acquittals justify sealing. Thus, acquittals for technical reasons usually will not justify sealing. Even an acquittal on the merits, which is 'merely an adjudication that the proof at the prior proceeding was not sufficient to overcome all reasonable doubt of the guilt of the accused' ... does not suffice ... The Legislature thus recognized that the requirement of proof beyond a reasonable doubt often results that defendants, who are not factually innocent, are acquitted. It sought by section 851.8, however, to benefit those defendants who, after presentation of...