People v. West

SWAIN, J.

Defendant was found guilty by a jury of one count of violation of section 41.08 of the Los Angeles Municipal Code (procuring) after trial on a four-count complaint. Count IV of the complaint alleges that the defendant did willfully and unlawfully cause, procure, induce, persuade and encourage another person to patronize prostitutes and houses of prostitution, direct and conduct another person to a prostitute, etc. She appeals from the order granting probation (mistakenly denominated the judgment of conviction), contending that the court erred in refusing to instruct the jury as to the defense of entrapment. We agree.

As held in

People

v.

Lindsey

(1949), 91 Cal.App.2d 914, 916-917 [205 P.2d 1114] : “Entrapment is the conception and planning of an offense by an officer and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. Persuasion or allurement must be used to entrap. [Citation.] The officer must induce the defendant to commit a crime which he would not have committed without such inducement. [Citation.] It is not the entrapping of a criminal that the law frowns upon but the seduction of innocent persons into a criminal career by its officers. [Citation.]” As the court said in

People

v.

Alamillo

(1952), 113 Cal.App.2d

[925]

617, 620 [248 P.2d 421] : if there was any evidence deserving of any consideration whatever, upon the issue of entrapment, the court should have instructed the jury upon the doctrine applicable to that issue.” In the instant matter, a vice squad officer testified substantially as follows: A bartender handed him a business card, and posing as a college student, he thereupon went directly to the motel managed by defendant. The officer told defendant: “Jess sent me.” Defendant replied, “Do you want a room?” He answered: “I am alone.” Defendant then said: “Oh, you want a girl?” He replied: “I guess so.” Then defendant made two telephone calls and told him that the two prostitutes she had contacted were unavailable. This incident was the subject of Count I. The officer testified to a similar occurrence on the occasion which was the subject of Count II. On the occasion which was the subject of Count III, defendant gave him a business card with the names “Anne” and “Kay” and “Flower Motel” written thereon, and sent him to the Flower Motel, where he was unable to locate a girl. As to Count IY, on which defendant was convicted, the officer testified that he went to the Flower Motel, located Kay, established the elements of a prostitution charge, arrested her, and then returned to defendant’s motel, where defendant told him Kay had been arrested but that she knew of another prostitute in a bar. These four incidents took place over a period of five weeks. However, according to defendant’s testimony, it- was the officer, not defendant, who first broached the subject of obtaining a girl for immoral purposes. She testified that he came to her motel about 10 times during a two-month period, importuning her each time to find a girl for him. She repeatedly told him that she didn’t have any girls and to stop bothering her. After the officer had come back seven or eight times, defendant sent him to see Kay at the Flower Motel, “thinking maybe she could help him; that I didn’t know anybody . . . I wanted to get rid of him.”