People v. Coyle

Opinion

FILES, P. J.

In superior court case A235383 defendant was charged by information in three counts with pimping (Pen. Code, § 266h), pandering (Pen. Code, § 266i), and placing his wife in a house of prostitution (Pen. Code, § 266g). While his trial was under way the defendant withdrew his plea of not guilty and pled guilty to count I (pimping), and the court dismissed the other two counts. On December 5, 1968, defendant was denied probation and sentenced to state prison. He is here appealing from the judgment.

In superior court case 313913 the defendant was found guilty of pandering (Pen. Code, § 266i) and on March 2, 1966, was placed on three years’ probation. When defendant was sentenced on December 5, 1968, following his guilty plea in case A235383, the court revoked probation in case 313913, and sentenced defendant to state prison on that offense also, the terms to run concurrently. Defendant is appealing from that judgment also, but he has no argument to offer except that the revocation of probation was based upon the 1968 guilty plea, and if that can be overturned he contends the order revoking probation should be reconsidered.

Defendant’s principal contention on appeal is that in the 1968 case the court should have granted his motion to suppress a tape recording of a telephone conversation.

That motion was made prior to trial under the provisions of Penal Code section 1538.5, and was heard on the testimony of Police Officer Brown and of defendant’s estranged wife Virginia, who was the alleged victim of the three offenses charged. The testimony showed that, after Virginia had complained to the police about defendant, Officer Brown suggested that she telephone defendant for the purpose of obtaining a recording of a conversation which could be used to supplement her testimony against him in court. Virginia understood she was not required to do this, but she agreed. Neither Virginia nor defendant was under arrest at the time,

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although a prostitution charge against Virginia was pending. An induction coil was attached, by means of a suction cup, to the earpiece of the telephone used by Virginia, by which means the entire conversation between Virginia and defendant was recorded. The recording was played for the court and transcribed in the record. Its content supports the inference that defendant had in the past procured his wife’s services as a prostitute and was trying to induce her to resume working for him in that capacity.