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District Court of Appeal, Second District, Division 4, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Don M. MURPHY and Darlene Williams, True Name: Dianna Kay Hargrove, Defendants and Appellants.

Cr. 7663.

Decided: July 31, 1962

Gladys Towles Root, Eugene V. McPherson and Harold Cutler, Los Angeles, for defendants and appellants. Stanley Mosk, Atty. Gen., William E. James, Gilbert F. Nelson, Asst. Attys. Gen., for plaintiff and respondent.

On October 20, 1960, defendants appeared in court for preliminary hearing. At this proceeding Pamela Louise Laron testified to an informal arrangement in which she had agreed to work for defendants as a prostitute. She testified to five specific acts of prostitution which were arranged for by defendants, and for which defendants received the amounts of cash that were paid to Miss Laron by the male patrons. The first act of prostitution regarding which she testified was with a Jim Prince at the Sunset Towers; the second with a Jim McDonald at the Beverly Hills Hotel; and the remaining three with ‘two college boys' and ‘a fat man,’ all of which took place at defendant's apartment.

Defendants were charged in an information filed November 3, 1960, with the crimes of pimping in violation of section 266h, and of pandering in violation of section 266i, both of the Penal Code. On December 5, 1960, the charge of pandering was dismissed. Both defendants entered pleas of not guilty to the charge of pimping. On January 31, 1961, the information was amended to include two charges of the crime of rape in violation of section 261, subd. 1 of the Penal Code. The first rape charge accused that defendants ‘did wilfully, unlawfully and feloniously aid and abet Jim Prince to have and accomplish an act of sexual intercourse with and upon Pamela Louise Laron who was then and there a female person under the age of eighteen years * * *.’ The second rape charge accused that defendants did ‘aid and abet Jim McDonald’ in a commission of the same crime. Defendants were then arraigned on the amended information, and they entered pleas of not guilty as to each count.

On March 16, 1961, the cause was called for trial. At that time the district attorney moved to amend the information by striking from the first rape charge the words ‘Jim Prince’ and inserting in lieu thereof the words ‘John Doe Williams', and by striking from the second rape charge the words ‘Jim McDonald’ and inserting in lieu thereof the words ‘John Doe Bob.’ Over defendants' objections the motion to amend by interlineation was granted. Defendants moved for a continuance by reason of surprise and on the ground that the amendments materially altered the information requiring additional time in which to prepare a defense to the amended charges. Defendant's motion for continuance was denied, and the trial proceeded forthwith without an arraignment on the information as amended by the interlineations.

At the trial Pamela Louise Laron testified that some of her testimony at the preliminary hearing was erroneous due to confusion, namely that the acts of prostitution committed with Jim Prince and Jim McDonald took place prior to the time when she had met defendants. Miss Laron testified that during July 1960 she moved into an apartment which defendants were sharing while they held themselves out as husband and wife. Defendants were informed that Pamela was only seventeen, but they stated that they were still going to try her even though using a minor would be taking a big chance. Defendants paid between $60 and $70 to have her hair dyed, and they purchased clothing for her which was intended to make her look older. During the four weeks that Pamela lived with defendants, she was given food, lodging and expense money. In return Pamela agreed to work for defendants as a prostitute.

During July 1960 defendants arranged for two college boys to come to their apartment. Pamela had sexual intercourse with both of them for which each paid her $20. Pamela gave the money to defendant Hargrove. Pamela engaged in another act of prostitution at a later date with a ‘fat man’ for which she received $20 which was turned over to defendant Hargrove. On July 14, 1960, Pamela engaged in an act of prostitution at the Statler-Hilton Hotel which was arranged for by defendants and for which she received $25 which was turned over to defendant Murphy.

The owners of the apartment which had been leased to defendants testified that they had observed Pamela Laron coming and going from the apartment during the month of July 1960. A police officer testified that when he arrested defendant Hargrove in Nevada she stated that ‘things * * * frightened her and she took off to Las Vegas.’ Defendant Hargrove testified on her own behalf denying that she arranged customers for Pamela Laron, or took money from her. Other witnesses were called by the defense for the purpose of impeaching the testimony of Pamela Laron.

After all the evidence had been heard, the jury found defendants guilty on all three counts charged by the amended information. Defendant Murphy's motion for new trial was denied, and he was sentenced to state prison for the term prescribed by law, sentences on each count to run concurrently. Not until this time was it disclosed to the trial court that defendant Hargrove was under eighteen years of age. Defendant Hargrove was thereupon certified over of the juvenile court for further proceedings. Having been found not fit for consideration under the juvenile court law, she was remanded back to the jurisdiction of the adult calendar for probation and sentence. Motion for new trial was denied, as was her application for probation. She was sentenced to state prison on all three counts, sentences to run concurrently. This is an appeal prosecuted by each defendant from the orders denying motions for new trial and the judgments of conviction.

Defendants' first contention is that it was error to deny the motion for continuance after the information was allowed to be amended by interlineation on the first day of the trial. Penal Code section 1009 provides: ‘The court in which an action is pending may order or permit an amendment of an * * * information * * * for any defect or insufficiency, at any stage of the proceedings * * * [T]he trial * * * shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted.’ The determination as to whether a continuance is necessary to prevent prejudice to substantial rights of the defendant is a matter for the trial court's discretion, and its ruling should not be disturbed unless there is a clear abuse of judicial discretion. (People v. Bloemsma, 171 Cal.App.2d 261, 340 P.2d 350.)

Defendants cite People v. Hembree, 143 Cal.App.2d 733, 299 P.2d 1043, in support of their contention that there was an abuse of judicial discretion in the case at bar which prejudiced the substantial rights of defendants. In the Hembree case the refusal of a reasonable continuance was held to be an abuse of discretion where after the prosecution had rested and after one defense witness had testified the information was amended so as to abandon the original charge of robbery, and substitute the new charges of grand theft and assault with a deadly weapon. In the instant case the amendment related only to a defect in specifically naming individuals who were aided and abetted by defendants in the commission of the crime of rape. Section 1009 of the Penal Code authorizes the information to be amended at any stage of the proceedings so as to charge any offense shown by evidence taken at the preliminary examination. Here, the preliminary examination showed that five persons were aided and abetted in committing rape on the person of Pamela Laron. While the information named only two of the five persons, the defendants should not have been surprised or unprepared to defend when the information was amended to name two of the persons who were shown at the preliminary examination to have been so aided and abetted. The trial court properly exercised its discretion in denying defendants' motion for a continuance.

The second contention on appeal is that it was error for the trial court to fail to arraign defendants on the amended information where the defendants lodged objection to the amendment. In People v. Walker, 170 Cal.App.2d 159, 164, 338 P.2d 536, 539, it was stated, ‘* * * the rule [requiring arraignment on an amended information] has been relaxed that if the defendant makes no demand or objection and is convicted upon a trial without having entered a plea the objection that there was no plea is waived and is unavailable to him.’ There must be a demand for an arraignment and an objection specifically raised to the failure to arraign. After the defendants' objection to the motion to amend was overruled, the defendants remained silent and allowed the matter to proceed to trial without objection concerning the failure to arraign. The defendants thereby waived their right and are precluded from raising the issue on appeal.

The third contention on appeal is that the evidence produced at trial established entirely different offenses from those shown at the preliminary hearing. Defendants assert that this places them in danger of being twice in jeopardy for the same offense. This contention is without merit. The jury found defendants guilty of offenses charged in the amended information which were clearly shown by evidence offered at the preliminary hearing: namely, aiding and abetting two college boys and a fat man in the commission of the crime of rape upon the person of Pamela Laron. No danger of double jeopardy can arise from the fact that two of the offenses which were testified to at the preliminary hearing were shown by the evidence at the trial not to have been committed by defendants.

The next contention is that the evidence is not sufficient to sustain the judgment of conviction. To warrant a reversal on the ground of insufficiency of evidence, it must appear that the testimony which was relied upon by the trier of the fact was inherently improbable. (See People v. Carr, 170 Cal.App.2d 181, 338 P.2d 479.) While the testimony of the prosecution's chief witness, Pamela Laron, was somewhat confused and at times contradictory, it was not inherently improbable. Her testimony was substantiated by defendant Hargrove's admission that they took Pamela into their apartment and fed and clothed her. The police officer's testimony which established defendant Hargrove's flight at the time of arrest also confirms the incriminating testimony. There was substantial evidence to support the jury's finding of guilt and the judgment of conviction.

The final contention is raised only by the defendant Dianna Hargrove, who was sixteen years of age at the time of the commission of the offenses charged. She contends that the Superior Court lacked jurisdiction to proceed without first having referred the matter to the juvenile court and having that court remand it back with defendant to be tried as an adult in accordance with the provisions of section 825 of the Welfare and Institutions Code. This section restricting jurisdiction of courts over juveniles must be read together with section 826 of the Welfare and Institutions Code as an entire enactment. (People v. Lavandera, 108 Cal.App.2d 431, 239 P.2d 30.) Section 826 provides, ‘Whenever * * * it is suggested or appears to the judge * * * that the person charged was, at the date the offense is alleged to have been committed, under the age of 18 years, such judge * * * shall immediately suspend all proceedings * * *.’

Here, there was no suggestion that defendant Hargrove was under 18 years of age until after the case had been presented. This fact was revealed to the court for the first time by newly substituted defense counsel. The statute does not require the judge to make an independent investigation concerning the age of a defendant where there are no facts present which would suggest or make it appear that the defendant is a minor. Defendant was certified to the juvenile court as soon as the judge was advised of the probable status of the defendant as a minor. There was no error here.

The judgments and orders denying motions for new trial are affirmed.


BURKE, P. J., and BALTHIS, J., concur.