People v. Wilkins

• Citation: 287 P.2d 555,135 Cal.App.2d 371
• Decision Date: 12 September 1955
• Docket Number: Cr. 3093
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Jean WILKINS and Bob Wilkins, Defendants and Appellants.

Page 555

287 P.2d 555

135 Cal.App.2d 371

The PEOPLE of the State of California, Plaintiff and Respondent, v. Jean WILKINS and Bob Wilkins, Defendants and Appellants.

Cr. 3093.

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

Sept. 12, 1955.

Rehearing Denied Sept. 27, 1955.

Hearing Denied Oct. 5, 1955.

Leslie C. Gillen, San Francisco, for appellants.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

BRAY, Justice.

Defendants were indicted and tried on three felony counts. Defendant Jean was found guilty on count III alone, defendant Bob on count II alone. From the judgment entered thereon and the order denying a new trial, both defendants appeal.

Questions Presented.

1. Sufficiency of the evidence under count II.

2. Court's refusal to order production of police records of Mrs. Peterson, Pat and Anita.

3. Instructions: (a) accomplices; (b) husband and wife not competent witnesses.

4. Error in polling the jury.

5. Is 'pandering' a misdemeanor only and therefore the superior court lacked jurisdiction?

Record.

Count I of the indictment charged defendants with violation of section 182, Penal Code (conspiracy), by conspiring to commit the crime of pandering, Stats.1911, p. 9; Deering's Gen.Laws, Act 1906; now Penal Code, § 266i. Count II charged both with the crime of pandering, by procuring a girl named Pat a place as an inmate in a house of prostitution. Count III charged both with the crime of pandering, by procuring Anita a place as an inmate in such a house. The jury acquitted defendant Jean on counts I and II but convicted her on count III. It acquitted defendant Bob on counts I and III but convicted him on count II.

1. Evidence--Count II.

The only charge of insufficiency of evidence is directed to the conviction of defendant Bob under count II. This charge is based primarily upon the fact that both Bob and Jean were acquitted of the conspiracy charge (count I). It is contended that there was no evidence that he personally procured a place for Pat, and although the evidence showed that Jean did so, he cannot be held as an aider and abettor because Jean was found not guilty on this count.

The evidence showed the following facts: Jean and Bob were husband and wife. Jean operated a call girl business, at first from an apartment occupied by her and Bob, and later from an apartment across the hall from one they occupied. She had an arrangement with taxi drivers to produce customers, paying the drivers a percentage of the fees collected by the girls. A driver would telephone the apartment, stating he had a customer. Either Jean or Mrs. Peterson, employed by Jean as a dispatcher, would instruct the driver to take the customer to a designated hotel. Then Jean or Mrs. Peterson would phone one of the call girls and instruct her to go to the designated hotel (sometimes she was sent there in advance) and get a room for herself and the customer, giving as the name of both, a name suggested to her over the phone. Then the dispatcher would phone the hotel and reserve a room in that name. The girl would deduct from the fee paid her by the customer, her agreed share. The balance would sometimes be left in a dresser drawer of the room, sometimes given directly to Jean, and sometimes left in an envelope at Mickey's Cigar Store. At the request of both defendants, Stanley, Jean's brother, permitted his name to be used as the proprietor of that store. Stanley's name was on the signature card for the store's bank account but it was not his signature. Bob occasionally made deposits in this bank account.

On occasion there were six call girls being used, including Anita and Pat. Pat was employed by Jean as a prostitute early in 1951. Under instructions from Jean or the dispatcher she would meet or take customers to a specified hotel. Three hotels were used by Jean for the call girl operation, the Lansdale, Uptown and DeWalt, but apparently Pat only worked in the latter two of them. After deducting her part of the fee collected in each instance, she would place the balance of the money in an envelope with her name on it, and leave it at Mickey's Cigar Store. Occasionally Pat left other girls' envelopes there.

Proving Bob's connection with the employment and use of Pat for prostitution are the following circumstances: The original employment of Mrs. Peterson as a dispatcher of call girls including her instruction as to her duties as such was made by Jean in Bob's presence in their joint apartment, which for some time thereafter was used as the place for receiving and transmitting the phone calls used in the call girl business. Later a separate apartment was used, but it was across the hall from that occupied by Jean and Bob. Bob was occasionally in the headquarters apartment while the business of dispatching girls went on. The telephones used in the operation were registered to R. W. Wilkins and one Mrs. J. Richards. Bob once boxed under the name of Richards. Mrs. Peterson worked as a clerk in the DeWalt Hotel during the periods when the call girl operations from the apartment were suspended. However, for both her services as call girl dispatcher and for her services as clerk, she was paid by check of the DeWalt Hotel. Although usually she received her check from the hotel manager, occasionally Bob gave her the paycheck. At one time in 1952 Bob instructed Mrs. Peterson to close up the call girl operation. On April 25, 1951, Pat was arrested for prostitution at the DeWalt Hotel. At the Lansdale Hotel a room had been set aside for Jean's call girls while awaiting calls. A phone was installed to transmit calls from Jean or the dispatcher. A couple of times Bob around midnight entered this room. A couple of times he went to the room to settle disputes between the customers and the girls. The hotel had been charging the call girls' customers $2.50 a room. Bob told the clerk to charge $5. Bob was the real lessee of the DeWalt Hotel, although the lease was in the name of James Ray, a brother of Jean's. At Bob's request, Ray signed the hotel checks in blank. Ray never received any of the profits of the hotel. During the period of the use of the hotel by Jean's operations there was a considerable increase of income from 'transients,' for example, for November, 1950 (prior to its use for prostitution) its income from 'transients' was $212. For November, 1951, that income was $5,082.50 The earnings went to Jean and Bob. An accountant kept the books of the DeWalt Hotel and Mickey's Cigar Store and prepared the income tax returns for Jean and Bob. His charges were paid by DeWalt Hotel checks signed by James Ray. The total income from the cigar store was credited to Jean and Bob, although Stanley Ray's name was used as proprietor.

While the court limited evidence of occurrences prior to July 2, 1950, to the conspiracy charge and the defendants were acquitted of that charge, and from time to time limited acts and declarations of Jean to the conpiracy charge 'unless they constitute specific evidence of the fact of pandering,' the evidence herein mentioned tying Bob into the charge of pandering as to Pat was specific evidence of the fact of pandering.

It is obvious from the foregoing evidence that, while Jean was the manager of the call girl business and employed the girls, Bob was an active partner in it, and participated in the employment of the girls including Pat. But, say the defendants, this participation, at most, was aiding and abetting Jean and as the jury acquitted Jean of the charge of procuring Pat, Bob cannot be held as an aider and abettor of one whom the jury found did not commit a crime. However, Bob's participation was more than that of an aider and abettor. He was an active partner in the business, received a share of Pat's fees, and although he did not himself directly employ Pat, he knew of her employment for himself as well as Jean, and, of course, he knowingly shared the profits from Pat's employment. Thus he was actually a principal. 'It has been held that one who accepts into his house of prostitution a woman 'procured' by another is himself a 'procuror' of the woman' and 'is guilty of procuring a place for her * * *.' People v. Van Way, 108 Cal.App.2d 129, 130, 131, 238 P.2d 56, 57. Here, not only did Bob accept Pat for purposes of prostitution in the DeWalt Hotel of which he was an owner, but through his partner Jean he employed her. Thus there was no error in the court's refusal to give an instructed verdict in favor of Bob on count II or to grant him a new trial thereon.

2. Police Records.

Defendants moved the court to order the production of the cards in the San Francisco Police Department concerning the records of Mrs. Peterson, Pat and Anita, all of whom admitted having been arrested for activities connected with prostitution. Defendants' attorney practically conceded that such records would not be admissible in evidence, but stated that he hoped to obtain information from them which, if not admissible, he could use in the cross-examination of said persons.

In Runyon v. Board etc. of Cal., 26 Cal.App.2d 183, 79 P.2d 101, the court held that parole board records were not subject to public inspection. '* * * the courts have consistently declared that in another class of cases public policy demands that certain communications and documents shall be treated as confidential and therefore are not open to indicriminate inspection, notwithstanding that they are in the custody of a public officer or board and are of a public nature. (23 R.C.L., pp. 160-163.) Included in this class are documents and records kept on file in public institutions, concerning the condition, care, and treatment of the inmates thereof, and the files in the offices of those charged with the execution of the laws relating to the apprehension, prosecution, and punishment of criminals.' (26 Cal.App.2d at pages 184-185, 79 P.2d at page 101; ...