People v. Holstun

In an information defendant Holstun and one Thomas Burke were charged, in count 1, with conspiracy to commit grand theft; in count 2 with grand theft; and in count 3 with conspiracy to violate certain sections of the Alcoholic Beverage Control Act. Burke pleaded guilty as to count 1, and further proceedings as to him were continued to a later date. Holstun pleaded not guilty as to the three counts. In a jury trial Holstun was found guilty on count 3, and not guilty on count 2. The jury could not agree upon a verdict as to count 1; and a mistrial was declared as to that count. (Later count 1 was dismissed.) Holstun was sentenced, on count 3, to imprisonment in the county jail for one year. He appeals from the judgment and the order denying his motion for a new trial.

In count 3 it was alleged that Holstun and Burke committed the crime of conspiracy to violate the regulatory provisions of the Alcoholic Beverage Control Act in that about July, 1957, they unlawfully conspired together to violate the provisions of sections 25657, 25658, and 25663 of said act.

As overt act 1, it was alleged therein that said defendants “employed female persons commonly known and described as ‘B’ girls to solicit the purchase of drinks of intoxicating beverages for said female persons and for male customers on premises operated by said defendants. ’ ’

As overt act 2, it was alleged that the defendants “served and caused to be served drinks of intoxicating beverages to minor persons in on-sale premises.”

As overt act 3, it was alleged that the defendants 11 employed two minor girls, . . . [Judy and Connie], to act as so-called ‘B’ girls, that is, to solicit male customers of on-sale liquor premises to purchase drinks of intoxicating beverages for said minor girls and male customers.”

As overt act 4, it was alleged that the said minor girls (Judy, and Connie) “did solicit the purchase of drinks of intoxicating beverages under the direct instructions of the said defendants” at the Gyro Room and the Captain’s Table.

Appellant asserts that certain code sections, involved herein, are unconstitutional; the court erred in instructing the jury; and the evidence was insufficient to support the verdict.

At various times, beginning in 1953, the defendant Holstun (appellant) owned and operated six bars or saloons in Long Beach. At the time of the alleged offenses involved herein, he was operating four of the bars. Two of the bars he was then

On April 25, 1957, about 11 p.m., a sailor entered, the Gyro Room, and at that time he had more than $500 on his person. Rusty, a girl employee in that bar, introduced him to Judy, another girl employee therein. Then he and Judy sat at a table and he bought drinks for her and himself. Soon thereafter, another girl employee therein, by the name of Connie, sat at the table with them. Judy and Connie “wanted” champagne, and he bought it for them. Rusty waited on them. He bought at least three or four bottles of champagne. When a bottle was brought to the table he paid for it with a $20 bill. He was intoxicated and did not notice whether each bottle was a new bottle or the same bottle that had been on the table. He also drank some beer and a drink known as a screwdriver, consisting of vodka and orange juice. He was affectionate with the girls. There was a discussion about the three of them going to an apartment. They remained at the table until approximately' 2:30 a.m., when he, Judy, and Connie left the barroom. They entered a taxicab and traveled several blocks. Then they walked down a stairway to the beach. During the walk the girls had their arms around his waist and he had his arms around their necks. When they arrived at the beach Connie 1 ‘ disappeared. ’ ’ While he and Judy continued along the beach, he put his hand in his pocket and found that all his money, except $11, was gone. Thereupon they returned to the boulevard. A taxicab, in which Connie was riding, came there and stopped for a second. Judy jumped into the cab, and the cab went away. He telephoned the police. Soon thereafter the police arrested Judy and Connie.

Judy was 19 years of age. Two or three days before April 25, she was employed by Burke to work at the Gyro Room. Burke introduced her to appellant (Holstun) and said that appellant was the owner of the place. Neither Burke nor appellant asked her how old she was. With respect to her duties, Judy testified that she was supposed to be a cocktail waitress; Burke told her to “hustle up” the drinks and keep the drinks coming in, to sit down and drink with the customers, and try to get them to buy as much champagne as possible; about 11 p.m. on April 25, she sat at a table in the Gyro Room with a sailor (McWilliams) ; she observed that he had a large amount of money consisting principally of $20 bills; part of the money was counted in her presence, and that

Connie was 20 years of age. On April 25, about 11:30 p.m., she entered the Gyro Boom and sat at the bar and drank beer. She told appellant that she was Judy’s roommate. She testified that appellant asked her if she would like to work for him; she asked him what she would have to do • he said that all she would have to do would be to sit with the customers and drink, and promise them anything; he told her he would guarantee $50 a week, that some girls made from $15 to $25 a night in tips or what they can “take the fellow for”; soon

Rusty testified that, when she was 19 years of age, she was employed by Burke to wait on the tables at the Gyro Room and to drink with the customers if so requested by them; on April 25, while she was in that bar but was not working there at that time, appellant asked her if she would like to make some money by serving the table where Judy, Connie, and a sailor were sitting; appellant told her that the sailor had a considerable amount of money and they would like to have it; she waited on the table and took champagne to the table about three times; Burke told her when to take the first bottle away from the table.

Five other girls, who had been employees of appellant, testified in substance the same as Judy, Connie, and Rusty had testified with respect to the general instructions given by appellant and Burke regarding duties. The five other girls testified that appellant and Burke had instructed them to associate and drink with the men customers and induce them to spend money. They also testified that they followed those instructions.

Mr. McGrail testified that in April, 1957, when he was paying for a highball which he had ordered in the Gyro Room, he handed a $100 bill to the bartender; there was a delay in giving the change; meanwhile, two girls came to his table and drank from “bottles that were labeled champagne”; he asked them who was paying for their drinks; they told him not to worry; about an hour later, Burke came to the table and gave him $60 as change.

The testimony of appellant on direct examination was in effect a denial of the statements and acts attributed to him, in the testimony of the prosecution witnesses, with respect to the duties of the girls or the instructions to them as employees. On cross-examination, he testified that Judy told him that the sailor had a considerable amount of money; he (witness) told her to talk to Burke; his purpose in te&ing her to talk to Burke was that she should tell Burke that a man was there to spend money; he would not have told Judy to “get all you can,” but he might have given her a word of praise, and it was probable that he gave her “a little urge”; he was in

Mary Ambrosio, called by the People as a rebuttal witness, testified that she was a police officer; pursuant to an assignment she went to the Gyro Room on April 30, 1957, and told appellant she wanted to work for him; appellant said he would like to employ her; he told her she Avould receive $10 a day if she stayed there; she said she receiA^ed more than that where she had Avorked, and she had received “so much” on every drink she sponsored; he said he could not do anything like that but he would split “50-50” with her on champagne, and that a smart girl could make $90 a week there and that “plenty of them do.”

Appellant asserts that section 182 of the Penal Code, under which he is charged with conspiracy in count 3, is unconstitutional. That section provides that if two or more persons conspire to commit any crime, they are punishable as follows: when they conspire to commit any felony, they shall be punishable in the same manner as is provided for the punishment of said felony; when they conspire to do any other acts described in said section, they shall be punishable by imprisonment in the county jail for not more than one year, or in the state prison for not more than three years, or by a fine or both fine and imprisonment. Appellant argues to the effect that he and Burke could have been charged with violating sections 25657, 25658, and 25663 of the Business and Professions Code, referred to in the information, or Avith an attempt to violate those sections, and then, if they were convicted, they would have been subject only to misdemeanor punishment, whereas they were charged with conspiring to violate those same sections and, having been convicted, they became subject to felony punishment; and that such discrepancy between the punishments deprives him of his constitutional right of equal protection of the laws. He argues further that such a discrepancy is unfair in that the punishment for agreeing to commit a misdemeanor is far greater than the punishment would be if the misdemeanor were actually committed. In People v. Keene, 128 Cal.App.2d 520 , it was said at page 529 [ 275 P.2d 804 ] : “Conspiracy is a distinct offense from the actual commission of the offense or offenses forming the object of the conspiracy; and the fact that the conspirators succeeded in perpetrating the acts which of themselves constitute the offense or offenses which they conspired to

Appellant asserts further that section 25657 of the Business and Professions Code (referred to in the information as having been violated by appellant) is unconstitutional in that it is so vague and uncertain that it violates the due process clause of the Constitution. That section provides, in part, that it is unlawful “For any person to employ, upon any licensed on-sale premises, any hostess or entertainer for the purpose of procuring or encouraging the purchase or sale of alcoholic beverages, or to pay such hostess or entertainer a percentage or commission on the sale of alcoholic beverages for procuring or encouraging the purchase or sale of alcoholic beverages on such premises.” Appellant argues that the section is vague and uncertain in that it fails to define the word “hostess” which is used therein; and that the meaning of that word is left open to speculation and conjecture. He quotes from the testimony of Judy, Connie, Busty and others wherein the girls are referred to as waitresses, and argues that the girls employed by appellant were not hostesses. In Cooper v. State Board of Equalization, 137 Cal. App.2d 672 [ 290 P.2d 914 ], a license to sell intoxicating liquor had been revoked on the basis that the licensee had violated said section 25657 and other statutes. In that case there was evidence that waitresses solicited male customers to purchase drinks for them and that the waitresses received money from the bartender for soliciting the purchases. It was contended therein that said section and another section (Pen. Code, § 303) were void for uncertainty. (The word “hostess” was not discussed specifically therein.) The court said at page 680: “Appellants argue that the language of the statutes ‘to employ . . . any person for the purpose of pro

Appellant also asserts that the court erred in not instructing the jury as to the meaning of the words “hostess” and ‘ ‘ B girls, ’ ’ as used in the information. He did not request such an instruction. He argues that the court of its own motion should have given such an instruction so that the jury would have known the meaning of the charge in count 3. The court gave an instruction which stated the substance of said section 25657 of the Business and Professions Code. It also gave an instruction to the effect that, as a prerequisite for determination of guilt, the jury must find that an overt act was committed, as alleged in the information. The information

Appellant asserts further that the court erred in refusing to instruct the jury, as requested by appellant, that if the crime of conspiracy to violate the Alcoholic Beverage Act, as alleged in count 3, was committed by anyone, then under the evidence and as a matter of law Burke, Judy, Connie, Rusty, and four other girls (specifically mentioned in the requested instruction) were accomplices. The four other girls, who had been employed as waitresses at some of appellant’s bars, testified in substance the same as Judy, Connie, and Rusty had testified regarding their duties and the instructions given them by appellant. The court instructed the jury properly with reference to the definition of an accomplice and with reference to the requirement that the testimony of an accomplice must be corroborated. Also an instruction was given which was to the effect that the jury should determine from the evidence whether a witness was an accomplice, unless the court specifically instructed the jury that a witness was an accomplice. There was a given instruction, with reference to count 3, that as a matter of law Burke was an accomplice. The jury was also instructed that a barmaid or bartender could be guilty of conspiracy to violate said act, and that a person need not be a licensee or a manager of a bar to be guilty of so conspiring, but that any person who entered into an agreement with one or more persons that they would join together to violate the act was guilty of conspiracy. Reference should be made to the three sections of the Business and Professions Code which it is alleged that appellant and Burke conspired to violate. Section 25657, subdivision (a), which

Section 25658, subdivision (a), provides: “Every person who sells, furnishes, gives . . . any alcoholic beverages to any person under the age of 21 years is guilty of a misdemeanor, (b) ...(c) Any on-sale licensee who knowingly permits a person under the age of 21 to consume any alcoholic beverage in the on-sale premises, whether or not the licensee has knowledge that the person is under the age of 21 years, is guilty of a misdemeanor. ’ ’

Section 25663 provides: “Every person who employs or uses the services of minors in or on that portion of any premises, during business hours, which are primarily designed and used for the sale and service of alcoholic beverages for consumption on the premises is guilty of a misdemeanor. ’ ’

Even if it be assumed that those witnesses were accomplices, it appears that the evidence was sufficient to show that their testimony was corroborated. As above stated, appellant testified he saw Judy, Connie, and the sailor at the table, and saw them drinking champagne; Judy told him that the sailor had a considerable amount of money; he told her to tell that to Burke; he might have given Judy a “word of praise” regarding her conduct with the sailor, and it was probable that he gave her “a little urge.” The court did not err prejudicially in refusing to give said requested instruction.

Appellant contends further that the evidence was insufficient to support the verdict of guilty of conspiracy to violate said sections 25658 and 25663, as charged in count 3. He argues that there was no evidence that he knew that Judy, Connie, or Rusty was a minor; and there was no evidence that he conspired with any one to sell to, or furnish the girls with, any alcoholic beverage or to employ them, knowing that they were minors. The jury could infer from the evidence that he knew that those girls were minors. He did not ask their age. It is reasonable to assume that their appearances placed him on notice that there was a question as to their minority. The jury could infer that the acts and conduct of appellant and Burke in employing Judy, Connie, and

The judgment and the order denying the motion for a new trial are affirmed.

Shinn, P. J., and Vallée, J., concurred.

A petition for a rehearing was denied February 17, 1959, and appellant’s petition for a hearing by the Supreme Court was denied March 25, 1959.