251 Cal.App.2d 471, 59 Cal.Rptr. 628
In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria’s telephone answering service, presumably for business purposes.1
On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria’s answering service.2 Mrs. Weeks, in the course of her conversation with Lauria’s office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police.3 She was assured that the operation of the service was discreet and “about as safe as you can get.”4 It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.5
On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modelling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation.6 She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks.7 Lauria defended his service and said that her friends had probably lied to her about having left calls for her.8 But he did not respond to Mrs. Weeks’ hints that she needed customers to make money, other than to invite her to his house for a personal visit to get better acquainted.9 In the course of his talk he said “his business was taking messages.”10
On February 15, Mrs. Weeks talked on the telephone to Lauria’s office manager and again complained of two lost calls, which she described as a $50 and a $100 trick.11 On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.12
On April 1 Lauria and the three prostitutes were arrested.13 Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police.14 When asked if his records were available to police who might come to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name.15 However, his service didn’t “arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them.”16 In a subsequent voluntary appearance before the grand jury Lauria testified he had always cooperated with the police, but he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.17
Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified.18 Subsequently the trial court set aside the indictment as having been brought without reasonable or probable cause.19 The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.20
Whether the evidence presented to the grand jury was sufficient to establish probable cause that Lauria conspired with the three prostitutes to commit prostitution?21
To establish conspiracy the prosecution must prove a tacit mutual understanding to accomplish an unlawful act.22 A supplier of lawful goods or services becomes a participant only upon proof of both knowledge of the illegal use and intent to further that use.23 Intent may be shown by direct evidence or inferred from circumstances including acquisition of a stake in the venture through inflated charges, sale of items with no legitimate use, sales grossly disproportionate to legitimate demand, or the aggravated nature of the underlying crime when it is a serious felony; knowledge alone does not establish intent when the offense is a misdemeanor.24
No. The established facts show Lauria possessed actual knowledge that some customers including Terry were prostitutes using the service for business.2526 He admitted personal use of her services and awareness of her five hundred calls per month. Nevertheless the rule elements for inferring intent remain unsatisfied because the record contains no evidence of inflated charges for the answering service.27 The service possesses multiple legitimate uses by night-club entertainers, nurses, and models.28 No proof was offered that the volume of business with prostitutes was disproportionate to ordinary demand.29
Prostitution is classified as a misdemeanor rather than a felony so knowledge alone supplies no inference of intent to participate.30 Application of these rule elements to the named facts therefore yields no showing of the agreement required for conspiracy.31
The evidence presented to the grand jury was insufficient to establish probable cause that Lauria conspired with the three prostitutes to commit prostitution.32
Related opinions on this issue
Justice Herndon concurred in the judgment.33