PEOPLE v. SMITH

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District Court of Appeal, Fourth District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Dewey SMITH, Defendant and Respondent.

Cr. 1009.

Decided: September 27, 1954

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for appellant. Edgar G. Langford, San Diego, for respondent.

Defendant was charged with the crime of Pimping. Penal Code Sec. 266h. A preliminary hearing was had and he was held to answer to the Superior Court. Following his arraignment in that court, he moved to set aside the information. This motion was granted and the People appeal from the order granting it.

The trial court at the hearing on the motion indicated that mere solicitation for a prostitute was insufficient and that, without a showing of receipt of compensation for such solicitation or division of moneys received, no probable cause existed to hold the defendant to answer to a charge of violation of section 266h of the Penal Code. The People here contend that solicitation for a prostitute, known to be such by the defendant, constitutes the crime of Pimping as defined in the Penal Code; that it was not necessary to show receipt of compensation therefor or division of moneys; and that the order dismissing the information for the lack of such showing must be reversed. We are in accord with this contention.

The first paragraph of section 266h of the Penal Code provides:

‘Any male person who, knowing a female person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of her prostitution, or from money loaned or advanced to or charged against her by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for her, is guilty of pimping, a felony, and is punishable by imprisonment in the state prison for not less than one year nor more than 10 years.’

It is apparent that this statute provides that one who: (1) lives; or (2) derives support or maintenance from the earnings of prostitutes or prostitution; or who (3) solicits for such prostitute, or (4) receives compensation for soliciting for her, is guilty of pimping, and that the foregoing enumerated acts, singly or together, constitute the crime of pimping as defined in this section. The statute contains the disjunctive particle ‘or’ separating the various acts constituting the offense of pimping.

In People v. Cimar, 127 Cal.App. 9, 15, 15 P.2d 166, 168, 16 P.2d 139, the court, in discussing the statute denouncing pandering (now Penal Code Sec. 266i) stated that the crime of procuring a female for a house of prostitution is clearly made separate and distinct from the other statutory offense of inducing a female to enter such a house by means of “promises, threats, violence by or any device or scheme” and that the statute distinguishes these different offenses by separating them with the disjunctive preposition ‘or’.

In People v. Giambone, 119 Cal.App.2d 338, 259 P.2d 10, the defendant was charged with soliciting and receiving compensation for soliciting for a prostitute and living and deriving support and maintenance in whole or in part from the earnings and proceeds of prostitution, and the court said the statute creates separate offenses, namely, soliciting for a prostitute, and living and deriving support and maintenance from the earnings of prostitution.

A conviction of soliciting under the statute here involved was affirmed on appeal in People v. Phillips, 70 Cal.App.2d 449, 160 P.2d 872, where the first count of the information charging defendant with deriving support from the earnings of a prostitute was dismissed and the defendant was tried and convicted on a second count charging him with soliciting for a prostitute.

The transcript of the preliminary examination reveals the following facts: One Samuel Carranza, during the early morning hours of April 24, 1954, was in the vicinity of the Phillipine Village in San Diego, when the defendant came up to him and asked him if he wanted a girl. Carranza answered ‘yes.’ The defendant told him to walk up to Sixth Avenue. As Carranza did this, a girl came out between two cars and defendant then ‘picked up’ Carranza and the girl and drove a short distance, where the defendant parked the car and got out. Carranza paid the girl $4, but did not see what she did with the money. He had an act of sexual intercourse with her in the back seat of the car, following which she said some one was coming and she got out of the car and left. A police officer driving in this vicinity saw the defendant's parked car and defendant standing near it. He saw a female Negro in the rear seat of the car and Carranza lying in the seat. The officer then arrested the defendant and asked him what he was doing there. Defendant replied that ‘he had come to that house to visit his sister-in-law but that there was no one at home.’ When asked if the car was his, defendant stated that he did not know anything about it. However, he later admitted ownership of the car and when asked if he had brought the sailor to that location, stated that he had never seen him before.

The evidence was amply sufficient to justify the order holding the defendant to answer to the Superior Court on the crime charged. People v. Platt, 124 Cal.App.2d 123, 268 P.2d 529. We conclude that the statute here involved was not aimed solely at preventing participation in the proceeds of prostitution but that it was also aimed at soliciting for prostitution and denounced those who either solicited or directly or indirectly derived support and maintenance or received compensation as a result of solicitation for prostitution.

The order setting aside the information is reversed.

MUSSELL, Justice.

GRIFFIN, Acting P. J., concurs.