People v. Dell
232 Cal. App. 3d 248, 91 Cal. Daily Op. Serv. 5580, 283 Cal. Rptr. 361 (1991)
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Rule of Law:
Out-of-court statements of solicitation for prostitution are not hearsay and are admissible as 'verbal acts' or 'operative facts' when offered not to prove the truth of the matter asserted, but to prove that the words of solicitation, which are themselves a part of the criminal transaction, were spoken.
Facts:
- Mary Dell operated the Rendezvous Escort Agency, which she promoted by placing advertisements in telephone directories.
- Undercover police officers conducted a 10-month investigation into the agency, suspecting it was a front for prostitution.
- During the investigation, officers called the agency's advertised number and requested escorts be sent to their hotel rooms for an hourly fee.
- Upon arriving at the designated locations, the escorts offered to perform specific sexual acts, such as sexual intercourse and oral copulation, in exchange for the fee.
- Dell was linked to the operation through evidence that she hired dispatchers, placed the advertisements, and personally collected the agency's receipts weekly.
- In a meeting with an undercover officer posing as a credit card company representative, Dell agreed to change the business's merchant account name to 'L.A. Services Company' to help disguise the nature of the charges to customers.
- Searches of Dell’s home and the dispatch location revealed lists of regular customers with their sexual preferences and fee schedules for the agency.
Procedural Posture:
- Mary Dell was charged in a California trial court with one count of pimping and two counts of pandering.
- Following a trial, a jury found Dell guilty on all three counts.
- Dell appealed the judgment of conviction to the California Court of Appeal, Second District.
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Issue:
Are statements made by escorts to undercover officers offering specific sexual acts for a fee inadmissible hearsay in a pimping and pandering prosecution against the operator of the escort service?
Opinions:
Majority - Johnson, J.
No. Statements of solicitation made by escorts are not inadmissible hearsay because they constitute 'verbal acts' or 'operative facts' of the crime of prostitution. The police officers' testimony about what the escorts said was not offered for the truth of the matter asserted—that is, to prove the escorts would actually perform the specific sex acts they described. Instead, the testimony was offered to prove that the words of solicitation were spoken, which is itself a legally significant event demonstrating that prostitution was occurring. These words are akin to the offer and acceptance that form an oral contract; their utterance has independent legal significance and is a crucial part of the transaction under investigation. Therefore, because the statements were not offered for their truth, they fall outside the definition of hearsay and were properly admitted into evidence.
Analysis:
This decision solidifies the application of the 'verbal acts' doctrine in California criminal law, particularly in cases involving solicitation and prostitution. By classifying words of solicitation as non-hearsay operative facts, the court provides a clear pathway for prosecutors to introduce crucial evidence from undercover operations without facing hearsay challenges. This precedent significantly aids in the prosecution of individuals who facilitate prostitution, such as pimps and panderers, by allowing the words of the prostitutes themselves to be used as direct evidence of the underlying criminal enterprise. The ruling underscores the principle that when the utterance of words itself constitutes a part of the crime, those words are not treated as hearsay.
