People v. Schultz

Decision Date17 December 1965
Docket NumberCr. 5113
Citation238 Cal.App.2d 804,48 Cal.Rptr. 328
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Lori SCHULTZ, Defendant and Appellant.

Kenneth C. Zwerin, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen. of State of California, Edward P. O'Brien, Horace Wheatley, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

On this appeal from the judgment of conviction for violating Penal Code section 266i 1 (pandering), defendant, Lori Schultz (also known as Shirley Schultz), raises a number of issues. The facts pertinent to each of these issues will be discussed in our consideration of the separate issues.

The Jurisdiction of the Court at the Time of Judgment to Correct the Error Which it Made in Previously Stating That it Found Defendant Guilty of Violating Section 266h Instead of Section 226i

By grand jury indictment defendant and Gilbert Schultz were charged with three felonies: Count one of the indictment contained a charge of conspiracy (violation of § 182), count two a charge of pandering (violation of § 266i), and count three a charge of pimping (violating of § 266h). Trial by jury was waived and the matter was heard before the court without a jury. At the conclusion of the trial the court indicated that it found Gilbert Schultz not guilty on all counts. It then stated that as to defendant 'there could be no guilt as to the pimping charge under the evidence. * * * So, that leaves only the pandering charge.' Subsequently, at the continued hearing, after argument by the attorneys, the court indicated its findings as follows: '* * * I am convinced beyond a reasonable doubt that the defendant is guilty of the charge of pandering. I can come to no other conclusion. So, the Court finds the defendant not guilty as to Count One, alleging a conspiracy, not guilty as to Count Two, charging pimping, and the Court finds the defendant guilty as charged as to the crime of pandering, a violation of Section 266h of the Penal Code as charged in Count Three.'

The matter was then continued for a hearing on defendant's motion for probation and for pronouncement of judgment. At this continued hearing, which was held some eight weeks later, the court became aware of the fact that it had previously announced a conviction of defendant for a violation of section 266h as charged in count three of the indictment and found her not guilty of a violation of section 266i as charged in count two. The error was declared by the court to be clerical, whereupon the trial judge announced that the records of the court were corrected to read that defendant was found guilty of violating section 266i, i. e., the crime of pandering as set out in count two of the indictment, and not guilty as to counts one and three. 2 The trial court then proceeded to pronounce judgment. The minutes of these proceedings do not reflect the subject correction but they do indicate that defendant having been found guilty of violating section 266i judgment and sentence therefor were pronounced by the court.

In relation to this action taken by the trial court defendant now argues on appeal that 'The court, having found appellant not guilty of pandering, lacked jurisdiction, after the entry of this judgment, to set it aside and sentence appellant on this count [count two].' 3 In considering this contention, we note initially that a court, in criminal as well as civil cases, has inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts. (People v. Flores, 177 Cal.App.2d 610, 613, 2 Cal.Rptr. 363; People v. Bueno, 177 Cal.App.2d 235, 238, 2 Cal.Rptr. 62; In re Roberts, 200 Cal.App.2d 95, 97, 19 Cal.Rptr. 147.) This rule allowing correction of clerical error, whether made by the clerk, counsel, or the court itself, is to be distinguished from the situation involving judicial error, which can only be corrected by appropriate statutory procedure. (Lankton v. Superior Court, 5 Cal.2d 694, 696, 55 P.2d 1170; Estate of Burnett, 11 Cal.2d 259, 262, 79 P.2d 89; Maxwell v. Perkins, 116 Cal.App.2d 752, 755, 255 P.2d 10; People v. Papayanis, 101 Cal.App.2d Supp. 918, 920, 226 P.2d 91.) The distinction between clerical error and judicial error is that the former is inadvertently made while the latter is made advertently as the result of the exercise of judgment. (Lankton v. Superior Court, supra, 5 Cal.2d p. 696, 55 P.2d 1170; Allen v. Allen, 138 Cal.App.2d 706, 711, 292 P.2d 581; Uhl v. Johnson, 141 Cal.App.2d 659, 665, 297 P.2d 493.)

In the instant case, as is clear from the trial court's discussion as to defendant's guilt on the pandering charge and her innocence of the pimping charge, the error which it made in finding defendant guilty of a violation of section 266h as charged in count three of the indictment--in reality the pimping charge--and finding her innocent as to count two, which charged a violation of section 266i--in reality the pandering charge--was patently an inadvertent error. Such findings were obviously contrary to the intention of the court as it in fact indicated at the time of entering judgment, and accordingly, as discussed above, the court possessed inherent power to correct its clerical error.

The Legality of the Search of Defendant's Apartment

A second issue which defendant raises on appeal concerns the admissibility into evidence of certain objects which were found by the police in defendant's apartment at the time of her arrest. In particular defendant urges that the police lacked probable cause to arrest defendant and consequently that the search which they conducted incident to this arrest was illegal. The evidence upon which the trial court concluded that the arrest and search were legal consisted solely of the testimony of Officer Checchi, who was with the Prostitution Detail of the Bureau of Special Services of the San Francisco Police Department. He testified as follows: At about midnight on July 30, 1964 he was called to the Fairmont Hotel to investigate alleged prostitution activities. At the hotel he and his partner, Officer White, followed two girls, one the prosecution's witness, Nancy Slater, to room 2202, where they overheard the occupant of that room ask the girls to 'take care of' his two friends in rooms 1500 and 2307. 'This was agreed upon' and the officers followed the girls to room 1500 where Nancy was let in. Checchi then testified that he overheard a conversation between Nancy and the male occupant of room 1500 in which Nancy agreed to have sexual intercourse with the man at an agreed price provided he was able to perform the act; that they attempted the act, but it was not completed; and that following their attempt, Nancy said to the male: "Could you call Lori for me at EXbrook 7-0751?" Checchi then overheard Nancy telling the party on the other end of the telephone "* * * I am all finished and I am leaving now. I am coming right back." As Nancy left the apartment, Checchi placed her under arrest. Checchi testified that upon being questioned Nancy told him that the number she had called belonged to Lori Schultz at 1090 Montgomery Street, Apartment 103. Checchi then stated that this Lori Schultz had been under investigation since 1962 for prostitution activities.

Approximately an hour and a half after receiving the information from Nancy, Checchi and White went to defendant's apartment. When Checchi told defendant that he 'wanted to talk to her about an arrest of a sixteen-year old girl made this evening which implicated her,' defendant started to slam the door. Checchi then pushed the door open and placed defendant under arrest. In the search of defendant's apartment immediately following her arrest, Checchi found a telephone with the number EXbrook 7-0751; an indexed address wheel and a white address book, which are the type of records customarily found in a call girl operation; and a scratch pad with the notation: "12 Midnight. Mr. X, (room) 2307. Mr. Y, 1500." 4 Checchi also testified that his investigation revealed that persons named Mr. X and Mr. Y were registered at the Fairmont Hotel as occupants of rooms 2307 and 2202, respectively, on the night of July 30, 1964. In addition, Checchi found a two-piece lavender suit hanging in defendant's closet, which fit the description of the suit which Nancy had told Checchi defendant had purchased for her. Checchi testified, with respect to this suit, that Nancy told him it was located in defendant's closet and was being kept there until Nancy could pay for it through her earnings.

Defendant moved to suppress the admission of the aforementioned articles found in defendant's apartment at the time of her arrest, namely, the address wheel, address book, scratch pad and lavender suit, and also to strike Checchi's testimony concerning these exhibits, on the ground that they were seized as a result of an illegal search. The motions were denied and the articles were admitted into evidence.

In considering the propriety of the trial court's ruling upholding the arrest of defendant and the incident search and seizure, we note that a police officer may make an arrest without a warrant and conduct an incidental search where he has reasonable cause to believe that the accused has committed a felony. (§ 836; People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Cedeno, 218 Cal.App.2d 213, 218, 32 Cal.Rptr. 246.) Reasonable or probable cause is shown if a man of ordinary care and prudence would be led to believe and conscientiously entertain an honest and strong suspicion that the accused is guilty. (People v. Torres, supra, 56 Cal.2d p. 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Cedeno, supra, 218 Cal.App.2d p. 219, 32 Cal.Rptr. 246.) Such reasonable cause to justify an arrest and search may be derived from the personal observations...

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