PEOPLE v. James A. Weiss, Fred Lee Johnson, Gerald Lee Hubbard and Vivian Hubbard, Appellants.*

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. James A. WEISS, Fred Lee Johnson, Addie Estelle Simmons, Gerald Lee Hubbard and Vivian Hubbard, Defendants. James A. Weiss, Fred Lee Johnson, Gerald Lee Hubbard and Vivian Hubbard, Appellants.*

Cr. 5799.

Decided: November 26, 1957

Harold J. Ackerman, Los Angeles, for appellants. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond Momboisse and John S. McInerny, Deputy Attys. Gen., for respondent.

This is an appeal from certain judgments and the orders denying motions for new trials in a number of causes having to do with the crime of abortion.

In an information filed in Los Angeles county, the defendants were charged jointly with the following crimes:

Count I—conspiracy to commit abortion (Penal Code, section 182, subdivisions (1) and (5));

Count II—an abortion on Evelyn Rogers on July 2, 1955 (Penal Code, section 274);

Count III—an abortion on Mrs Eugene Jaderquist on November 23, 1955;

Count IV—an abortion on Nancy Cliff on January 18, 1956;

Count V—an abortion on Dorothy Robinson on January 23, 1956;

Count VI—an abortion on Mary Yoho on January 23, 1956;

Count VII—an abortion on Marion Powell on January 23, 1956.

Each of the defendants entered a plea of not guilty to each count. The case was tried before a jury and the following verdicts were returned:

James A. Weiss was found guilty on counts I, IV, V, VI, and VII, and not guilty as to counts II and III;

Fred Lee Johnson was found guilty on all counts;

Gerald Lee Hubbard and Vivian Hubbard were found guilty on counts I, III, IV, V, VI and VII, and not guilty as to count II;

Addie E. Simmons was found guilty on counts I, III, IV, V, VI, and VII, and not guilty as to count II.

Motions for a new trial for each of the defendants were made, and each such motion was denied, excepting in the case of Addie Simmons, who withdrew her motion for a new trial and later filed an abandonment of her appeal. All defendants were sentenced to the state prison. All defendants excepting Simmons have appealed.

In 1953, Lieutenant Zander of the Los Angeles police department was in the course of conducting an investigation of Vivian Hubbard and her brother, James Weiss, and her son, Fred Johnson, on abortion charges. They were operating from an address on Gault Street, Hollywood, and the officer saw large numbers of girls being taken there. He saw Gerald Hubbard, with his wife Vivian, transporting various women in an automobile to the place where abortions were being committed. Officer Zander knew the relationships which existed between the parties. In conversations with the various women who had been aborted, officer Zander learned that the general method of operating was for the woman seeking an abortion to make a call to ‘Vivian’ at the telephone numbered ‘Albany 2309’; that she would then be directed by the woman who answered the telephone to go to a drive-in restaurant in the area, where she would be met by a woman who would drive her to the location where the abortion would be performed. Zander also learned that at the abortion establishment on Gault Street, in Hollywood, the operations were performed by a man dressed in a white gown and wearing a white cap and mask; also that the woman to be operated on administered anesthetic to herself by the use of a face mask and contraption strapped to her arm. Zander also learned that Fred Johnson and his wife Patty had been seen at the Gault Street house. Further, the officer found that some women were taken to a house in Malibu by Vivian Hubbard for the purpose of being aborted, and that later some women were taken to the home of appellant Johnson and his wife at 7414 Penfield, where they were given further care and treatment. One of the aborted women identified Weiss, by a picture, as being the man who had operated upon her. Arrests were made in May, 1954 as a result of the investigation and Vivian Hubbard, her brother Weiss and her son Johnson were charged with performing illegal abortions. The officers did not have a search warrant on that occasion. Those cases were concluded.

In December of 1954, Zander learned of a suspected abortion ring operating in Long Beach. He found in that case that a woman desiring an abortion would call the telephone numbered ‘Albany 2309’, and would then be referred to another number, where a woman by the name of ‘Vivian’ was contacted concerning arrangements for the performance of the illegal abortion. In January of 1955, Lieutenant Zander heard that Vivian Hubbard was performing abortions at an address on Ocean Avenue in Seal Beach. Acting upon the information he conducted another investigation. He checked with the telephone company and learned that the telephone at the address was listed to James Alexander, which he found was an alias of appellant Weiss.

The investigation in the present case began in June, 1955. In July, 1955, Zander was contacted by an investigator for the State Medical Board, Mr. Meade, who told him that he was investigating a report concerning Evelyn Rogers, who was confined in a local hospital as a result of complications arising from an illegal abortion performed upon her. The investigator told Zander that Mrs. Rogers had reported to him that she had arranged for the abortion after having been contacted by telephone by a woman named ‘Vivian’ from a telephone number with a Diamond prefix. She had also told the investigator that she had been instructed to go to the Clock Drive-in restaurant in Long Beach; that when she had gone there she had been driven from the drive-in by a young man in a green Mercury automobile to a house in the Naples area of Long Beach, where the abortion was performed. She further had told the investigator how the operation had been performed, namely by a man dressed in a white surgical gown wearing a white cap and mask, assisted by a man who had instructed her on the use of the anesthetic to be administered to her by way of a facial mask strapped to her wrist. Later, the investigator learned from Mrs. Rogers the number of the automobile which has been used to transport her, and the investigator gave Zander this information. Zander also learned through Mrs. Rogers that the house where the abortion was committed was located at 159 Syracuse Walk, Long Beach. A check at the telephone company disclosed that the telephone located at that address was listed to Frank Johnson. Based on the description of one of the men furnished by Mrs. Rogers, and his own prior knowledge, Zander suspected that Frank Johnson was in reality the appellant Fred Johnson. The house at the address on Syracuse Walk was rented to Johnson on June 6, 1955.

Officer Zander checked out the information supplied by Mrs Rogers and discovered that the Albany telephone number she had given him was an answering service. Zander called the Albany number and asked how he could locate Gerald Hubbard and the person at the answering service referred him to Hubbard's home at 6701 Sunnybrae Avenue, Canoga Park, and gave him a telephone number with a Diamond prefix to call. The officer was then referred to another number, Diamond 7–0583, and this number was listed to Hubbard at the Sunnybrae address. There was an extension of that telephone to the Johnson home at 7414 Penfield.

About November 21, 1955, Zander learned that Eugene Jaderquist had contacted officer Bates of the police department and had told the officer that his wife had made arrangements to have an abortion performed; that she had talked with a woman named ‘Vivian’ on the telephone at a number with a Diamond prefix. Jaderquist said his wife had been told to go to the Long Beach Airport, where she would be met by a woman who would take her to the doctor. Later Jaderquist called officer Bates and Zander heard him tell Bates that his wife had been picked up by a woman in a black Mercury car and driven to a house in Belmont Shore with the number 5460, where the abortion was performed. A search of the area by Zander led to the discovery of the house located at 5460 The Toledo, where most of the abortions in the present case were performed. When Zander located the house, he saw a black 1950 Cadillac automobile parked in front of the place, and by checking found it was registered to Harry Umann, whom he knew to be the attorney for Weiss, Johnson and Hubbard. He also ascertained that the house had been rented by Vivian Hubbard on July 9, 1955, and that the telephone in the place was listed to Gerald Hubbard.

On January 16, 1956, Zander placed the house at 5460 The Toledo under surveillance and a watch was placed and maintained at the airport. At the house the police saw the frequent arrivals and departures of Addie Simmons in the black Cadillac above mentioned, with large numbers of girls who would enter for a while and then be driven away in the same vehicle. They also saw Addie Simmons pick up and later return the girls to the airport. The officers saw Weiss and Johnson entering and leaving 5460 The Toledo.

On February 1, 1956, officer Zander called the telephone numbered Diamond 7–0583 and he recognized the voice of the person answering the telephone as being appellant Gerald Hubbard. Zander represented himself as being a Frank LaPeer and made arrangements for an abortion to be performed on a woman he identified as Clara Martel, and whom he supposedly had gotten pregnant. Hubbard told the officer the price for the abortion would be $350, and told him to bring the girl to a restaurant in Long Beach. Hubbard assured Zander the operation would be performed by a ‘real fine doctor and an M.D.’ and that ‘this was no fly-by-night operation.’

On February 3, 1956, at about 8:00 o'clock p. m., Zander and a group of other officers entered the house at 5460 The Toledo and arrested Addie Simmons, Weiss and Johnson. Upon entering the house, the officers first met Simmons and arrested her and then ran to the upstairs bedroom. While going up the stairs they met Johnson, who, upon seeing them, tried to warn Weiss. Zander and a photographer entered the bedroom and took a picture of the scene and of Weiss dressed in a white surgical gown with a white mask over his face. Weiss and Johnson were arrested, the house was searched and a large amount of various types of surgical equipment and paraphernalia commonly used in abortions was taken into possession.

After the arrests just mentioned, those defendants were placed in custody. Officers Wahlke and Galindo were directed to go to the Hubbard home at 6701 Sunnybrae in Canoga Park and arrest Gerald Hubbard. After about a forty-five minute wait Hubbard appeared and entered the house. The officers then knocked on the door and when Hubbard answered the knock he asked them in. Galindo was known to Hubbard. Galindo told Hubbard that he was under arrest on an abortion charge and told him of the arrests at the The Toledo address, and further told Hubbard that he (Hubbard) was ‘in on it.’ Hubbard asked, ‘Well, how deep am I in on it?’ The house was searched and some papers and notes were recovered which indicated that Hubbard had taken some telephone calls from various women who had called the telephone numbered Diamond 7–0583 to arrange for an abortion. Exemplars of handwriting indicated that Gerald Hubbard and Vivian Hubbard had written the notes found in the house. One of the notes reflected the call Zander had made when he had arranged for the abortion to be performed on the fictitious ‘Clara Martel.’ While Hubbard was talking to the two officers, he said, ‘I knew that was Sergeant Zander on the phone I talked to the other day,’ and then indicated that he didn't want to talk about it any further. At the police station on the night of the arrests, Zander saw Hubbard and after an exchange of greetings Hubbard said to Zander, ‘I thought I recognized your voice the other day. It is nice to talk to you again.’

Count I charged a conspiracy to commit abortions, and that in furtherance of the conspiracy the defendants committed some ten overt acts such as the renting of the houses, the installation of the telephones, the meeting and transporting of the women to the house at 5460 The Toledo for the performing of the abortions, Zander's talk with Hubbard over the telephone and various other acts which it appears unnecessary to mention.

Count II charged the abortion on Evelyn Rogers in July, 1955. Mrs. Rogers was pregnant and desired the abortion. Without going into all of the details, suffice it to say that Mrs. Rogers had a call from a woman who said she was ‘Vivian,’ and that she, Vivian, could help her; that the cost would be $350, and the operation would be performed in Long Beach; that Mrs. Rogers should go to the Clock Drive-in restaurant the following Saturday about 1:00 o'clock p. m., where she would be met by a man in a green car. Mrs. Rogers went to the drive-in as directed, met a young man, was taken to the house at 159 Syracuse Walk in the Naples area of Long Beach, where she was met by Johnson and a man in a white mask and gown. She gave one of them $350, and was then advised of the anesthetic device and how to use it, she was then aborted, and then was driven back to the drive-in. She later became ill and called her family doctor who had her hospitalized. While in the hospital she talked to investigator Meade, as heretofore set forth.

Count III charged the abortion of Margaret Jaderquist. She wanted to terminate a pregnancy, and consulted with a doctor who referred her to a woman known as ‘Vivian’ and a telephone number with a Diamond prefix. She called the telephone number and spoke with a woman who identified herself as Vivian and who quoted her the price of $350 for the abortion. She was directed to the airport and upon going there with her husband was met by Addie Simmons. Simmons told her husband he could pick up his wife at a named bar and then left with Mrs. Jaderquist and another woman to drive to 5460 The Toledo. When Mrs. Jaderquist entered the house she was met by Johnson who escorted her upstairs, where she saw a man in a white mask. She gave $350 to Johnson and was instructed in the use of the anesthetic and was aborted.

Count IV charged the abortion of Nancy Cliff. She placed a telephone call and talked with a woman named Vivian about an abortion, the price of $350 was quoted, and she was instructed to be at the airport. Addie Simmons picked her up there and drove her with another young girl to 5460 The Toledo. At the house the same course was followed as is set forth in counts II and III. She was told that if there were any difficulties to call Vivian at Diamond 7–0583, and was then returned to the airport.

Count V charged the abortion of Dorothy Robinson. She was given the Diamond telephone number by a friend and she called and talked with a ‘Vivian.’ Later she was directed to a place where she would be picked up. She was picked up by Addie Simmons and was taken to a house where substantially the same procedure took place as heretofore related in the other instances.

Count VI charged the abortion of Mary Yoho. She desired to terminate a pregnancy and a doctor gave her the telephone number Diamond 7–0583 and told her to call and to ask for ‘Vivian.’ She did as directed. She arranged for the money and was told to go to the airport where she and a girl she later learned to be Marion Powell were picked up by Addie Simmons and taken to 5460 The Toledo. Substantially the same course was followed in her case as in the others already related. She had trouble thereafter and called the name and number which had been given to her, namely Vivian, at Diamond 7–0583, and was told by Vivian to return for further care. She did so return and was treated.

Count VII charged the abortion of Marion Powell. She was referred to Vivian and called her by telephone and made the usual arrangments as heretofore set forth. She was picked up at the airport, taken to the The Toledo house, met by the same people, aborted and returned to the airport.

Appellants' first contention is that the searches of the premises at 5460 The Toledo and 6701 Sunnybrae were illegal because the officers did not have sufficient reason to believe that a felony had been committed at either place, and that the evidence seized therefrom was therefore inadmissible at the trial. The facts as heretofore set forth clearly show that there is no merit to such contention. The arrests came about after careful, painstaking and well-planned police work based upon reliable information. Knowing what they did from their own observation and from what they had learned from those who had been aborted, it would have been difficult for the police to imagine that the defendants were doing anything other than operating an illegal abortion establishment. The fact that the police, in 1954, prior to the decision in People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, may have secured some evidence and information which may have assisted them in ferreting out the alliance in 1956, does not alter the situation. Certainly the police are not required to ignore all that they have learned in the past. The Cahan case merely changed a rule of evidence in this state. See, People v. Moore, 140 Cal.App.2d 870, 295 P.2d 969; People v. Wickliff, 144 Cal.App.2d 207, 212, 300 P.2d 749; People v. Jaurequi, 142 Cal.App.2d 555, 298 P.2d 896.

The second contention of appellants is that the trial court committed prejudicial error by allowing the prosecution to take two exhibits, which were in the court's possession, prior to trial in order to subject them to further examination. After the jury had been selected the district attorney requested permission to withdraw two exemplars of the handwriting of Vivian Hubbard and Gerald Hubbard which had been introduced at the preliminary hearing as exhibits. Appellants objected and argued that they had a right to be present at any examination and that it should be conducted in open court. At the time of the withdrawal, the exhibits had not been marked for identification nor introduced into evidence in the trial court. Later on, over objection, the two exhibits were introduced into evidence and a police handwriting expert testified in relation to them. Appellants rely upon what was said in the case of People v. Ramirez, 113 Cal.App.2d 842, at pages 849 to 852, 249 P.2d 307. However, in the Ramirez case the exhibits had been introduced into evidence prior to the time they were withdrawn. Further, the withdrawal was done without the knowledge of the defendant, and too, there were comments by the judge which were uncalled for. As we view it, none of the circumstances of the Ramirez case is present here. The appellants had the right to have their own expert examine the exhibits after the police expert had concluded his examination, but no request therefor was made. (See, People ex rel. Knight v. Eames, Co. Ct., 115 N.Y.S.2d 248, on the problem of orders of withdrawal generally.) We find no prejudicial error in the course which was followed by the trial court.

The third contention made by appellants is that it was prejudicial error to allow the witness Rogers to testify as to a telephone conversation she had with an unidentified person who represented himself to be an attorney of one of the people who had performed the abortion on her. Mrs. Rogers had, with the police, visited the general scene and neighborhood where she had been aborted. She later received a telephone call from a person who inquired about her physical difficulties and whether she was in a hospital, and in the conversation she was asked in substance if she had been down to where the abortion was committed and she stated ‘No.’ In the course of the questioning, while she was a witness, she was asked if the caller had identified himself, and without objection she answered, ‘I believe he may have said that he was Vivian's attorney * * *.’ She was then asked to relate, and over objection did relate, the conversation between them. She said that she was asked by the caller if she knew Mr. Meade and if she had gone to Long Beach to point out the house. The evidence was not introduced to prove the truth of the matter asserted, but merely to prove the fact that the witness had been contacted and impliedly intimidated. See, People v. Cunha, 107 Cal.App.2d 382, 386, 237 P.2d 12. Surely, it was proper to show that an agent of the defendant contacted the witness. See, People v. Burke, 18 Cal.App. 72 91, 122 P. 435; People v. Kendall, 111 Cal.App.2d 204, 213, 244 P.2d 418. Who would have known of Vivian, of the abortion, of the state medical board investigator—who would be particularly interested in the health of Mrs. Rogers following the abortion, and whether she had pointed out the house where the abortion had been committed? Certainly the appellants were vitally interested in knowing whether Mrs. Rogers had contacted the police. Under the circumstances of this case, there was no prejudicial error in allowing the witness to testify as to the conversation.

The fourth contention of appellants is that the court unduly and impropely restricted the cross-examination of the witness Eugene Jaderquist regarding his conversation with the police prior to the time the appellants committed the abortion on his wife. We have read the record carefully and we find no errors in the rulings of the court. The trial court has a wide discretion over cross-examination. People v. Morlock, 46 Cal.2d 141, 149, 292 P.2d 897; People v. Winston, 46 Cal.2d 151, 157, 293 P.2d 40. Cross-examination should be confined to matters which have been elicited from the witness on direct examination. Code Civ.Proc. § 2048; People v. Watson, 46 Cal.2d 818, 826, 299 P.2d 243.

Appellants' fifth contention is that the district attorney was guilty of prejudicial error in his argument to the jury. The district attorney argued that (1) the appellants were operating an abortion mill; (2) the women who submitted to such abortions were in danger of suffering great physical injury and (3) the showing of more abortions would have no effect upon the evidence actually introduced. In most of the instances which are now claimed to be erroneous there was no objection made and in such instances the failure to object constitutes a waiver. People v. Hampton, 47 Cal.2d 239, 241, 302 P.2d 300; People v. Sutic, 41 Cal.2d 483, 496, 261 P.2d 241; People v. Eggers, 30 Cal.2d 676, 185 P.2d 1; People v. Codina, 30 Cal.2d 356, 362, 181 P.2d 881. In any event, we believe the argument made was well within the permissible limits of argument. See, People v. Planagan, 65 Cal.App.2d 371, 407, 150 P.2d 927; People v. Eggers, supra, 30 Cal.2d at page 693, 185 P.2d 1.

The sixth contention of appellants is that they were denied the right to a speedy trial. The record shows that they expressly waived any right which they might have had in such regard. See, Stewart v. Superior Court, 132 Cal.App.2d 536, 537, 282 P.2d 582; In re Lopez, 39 Cal.2d 118, 119, 245 P.2d 1; People v. Hocking, 140 Cal.App.2d 778, 780, 296 P.2d 59.

The seventh contention of appellants is that the court committed prejudicial error by improperly preventing appellants' counsel from questioning a defense witness which questioning would supposedly have proved an alibi for Gerald Lee Hubbard, and also would have impeached officer Zander. Gerald Lee Hubbard was a member of the Los Angeles Fire Department, and appellants called as their witness a person from the Fire Department to show that Hubbard was on duty on a certain date. The witness repeatedly said that the record he kept would not refresh his recollection in regard to who was on duty on the date in question. The record was read into evidence, which we believe was proper under the circumstances. As is said in Anderson v. Souza, 38 Cal.2d 825, at page 832, 243 P.2d 497, at page 502:

“As to his reading the memoranda into the record, that is permitted when the code says: ‘So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts.’ Where proper foundation has been laid the fact that the writing does not refresh the recollection of the witness does not prevent him from testifying from the writing and if his recollection is not refreshed there would be no other way to testify ‘from the writing’ save to read from it verbatim.” See, also, People v. Keelin, 136 Cal.App.2d 860, 877, 289 P.2d 520.

Appellants' eighth contention is that the court committed prejudicial error by permitting the introduction into evidence of a sample of the handwriting of Gerald Lee Hubbard taken from him while testifying in his own defense. There was no objection raised when the defendant was asked to write various words, only when they were offered into evidence was there any objection. The defendant waived the objection. People v. Wissenfeld, 36 Cal.,2d objection. People v. Wissenfeld, 36 Cal.2d 26 Cal.2d 795, 806, 161 P.2d 369. There was a writing found in the home of the witness which reflected that he had talked to ‘Frank LaPeer’ about ‘Clara Martel.’ The witness denied that he had talked with Zander (using the name of Frank LaPeer) about a Clara Martel. In what more logical way could his credibility be tested than to ask him for a sample of his handwriting and thereby let the jury determine whether he wrote the note found in his house? (See, People v. Zerillo, 36 Cal.2d 222, 227, 223 P.2d 223, with reference to the scope of cross-examination of a defendant who testified in his own defense.) We believe it was proper under the circumstances to ask for, and to introduce into evidence the exemplars of the witness' handwriting to the end that the jury could compare the writing with the writing on the note found in his home, which showed that he had received the telephone calls he claimed he did not receive. People v. Klopfer, 61 Cal.App. 291, 299, 214 P. 878; United States v. Mullaney, C.C., 32 F. 370; Long v. State, 120 Tex.Cr.R. 373, 48 S.W.2d 632, 634; State v. Vroman, 45 S.D. 465, 188 N.W. 746, 748.

The appellant Gerald Lee Hubbard contends that the evidence against him is insufficient to sustain his conviction. In our opinion the evidence was ample to sustain the jury's determination. A reading of the record discloses without question that he was an integral part of the whole conspiracy. He and his wife Vivian were undoubtedly the main moving parties—it was they who made the arrangements for the abortions, distributed the proceeds and secured the necessary establishments where the operations were performed. The telephone at 5460 The Toledo was listed to Gerald Hubbard and the bills were sent to him at that address. Some of the women aborted were transported to and from the various houses in an automobile registered to him. Further, his statements at the time of his arrest showed his knowledge of the abortions. See, People v. Newland, 15 Cal.2d 678 ,104 P.2d 778; People v. Daugherty, 40 Cal.2d 876, 256 P.2d 911.

Gerald Lee Hubbard lastly contends that the trial court committed prejudicial error by incorrectly instructing the jury that Hubbard would be responsible for crimes committed prior to the time he entered into the conspiracy with the other appellants to commit abortions. The court gave CALJIC instruction No. 932. Appellant's argument, simply stated, is that a conspirator is not liable for substantive offenses committed in the furtherance of the conspiracy if those crimes were committed before his entry into the conspiracy. There is no merit in the contention. See, People v. Griffin, 98 Cal.App.2d 1, 44, 219 P.2d 519; People v. Sherman, 127 Cal.App.2d 230, 239–240, 273 P.2d 611; People v. Sears, 138 Cal.App.2d 773, 791, 292 P.2d 663; People v. Goldstein, 136 Cal.App.2d 778, 787, 289 P.2d 581; People v. Brumback, 152 Cal.App.2d 386, 314 P.2d 98.

We find no prejudicial error in the record.

The judgments against each of the appellants on the counts heretofore set forth, and the orders denying motions for new trial are, and each of them is affirmed.

FOURT, Justice.

WHITE, P. J., and DRAPEAU, Justice pro tem., concur.