PEOPLE v. BERGER

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District Court of Appeal, First District, Division 1, California.

The PEOPLE of the State of California, Plaintiff and Respondent. v. Alfred BERGER, Defendant and Appellant.

Cr. 2989.

Decided: September 27, 1954

Morris M. Grupp, San Francisco, for appellants. Edmund G. Brown, Atty. Gen. of the State of California, Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty., City and County of San Francisco, William B. Acton, Asst. Dist. Atty., Irving F. Reichert, Jr., Deputy Dist. Atty., San Francisco, for respondent.

Alfred Berger and Nellie Kelly Carlton were indicted upon two counts charging violation of section 182 of the Penal Code. Each count charged that Berger and Carlton conspired, combined and agreed together and with other persons whose names were unknown to the grand jury. Count One charged a conspiracy to commit the crimes of grand theft and petty theft; Count Two, to violate section 590 of the Police Code of San Francisco which requires a municipal license for the solicitation of gifts for charitable, patriotic or philanthropic purposes, and imposes misdemeanor penalties for violations.

As to Carlton, the jury disagreed, thus failing to convict or acquit on either count. Berger was convicted on both counts. The court sentenced him to the state prison for the term prescribed by law, on each count, and then suspended both sentences on condition that he be confined in the county jail for one year and then remain on probation for five years, as to each count, the terms of confinement and periods of probation to run concurrently. He has appealed from the judgment, from an order denying his motion for new trial, and from an order denying his motion in arrest of judgment. He assigns a number of errors, points which can the more satisfactorily be discussed if we first narrate some of the significant facts disclosed by the evidence.

Berger entered the publishing business in 1946 at 435 Duboce Avenue, with a publication called The Pacific Veteran. He employed several telephone salesmen who solicited advertising over the telephone; this method of solicitation continued until the time of trial. In August, 1946, he changed the name of his publication to the Veterans Post and in 1949 he moved to 1119 Mission Street. Publication was irregular and unpredictable. In 1950 he hired Nellie Kelly Carlton. In 1950, 1951 and 1952, he also published the Jewish Star. In addition, he did business under the name of the Best Publishing Co.

The business was conducted as follows: Telephone solicitors working from booths on the premises were paid a commission of 25% of the money realized from these solicitations. There were about eight solicitors working, very few staying for any length of time. The names of the persons to be solicited were given to the solicitors by Berger, by Carter Graham (sometimes referred to as Graham Carter) and by Nellie Carlton. Graham was the sales manager and Carlton the office manager. In the latter part of 1951 the solicitors used a sales talk which focused upon the great need for blood for our servicemen. They also said that the money they received would be used to transport people to the blood bank and to form blood donor groups in factories and other business establishments; and that the money collected would be used to publicize the need for blood on radio and television. One former employee testified that she had heard Graham used the ‘pitch’ over the phone. Graham instructed the solicitors as to the method of making solicitations. Graham gave the solicitors ‘pitch sheets' which had to do with the need for blood. He stated that this need was to be publicized by a series of radio, television and newspaper programs. Berger and Graham told the solicitors that radio broadcasts were being made by the Veterans Post. Berger listened to the solicitors making their ‘pitch.’ Berger himself solicited funds. One of the solicitors testified that Berger and Graham referred to some contributors as ‘suckers.’

Photostatic copies of bank records were introduced showing total deposits for 1951 for the Best Publishing Co. of $41,086.25 and for the months of January to March, 1952, deposits of $11,794.97; for the months of February, 1951, through March, 1952, $12,892.10 was deposited in an account for the Jewish Star.

A number of persons who had been solicited testified that they had been asked for money which was to be used for opening a blood collection center; for radio and television programs to publicize the need for blood; for cab fares to take donors to the blood bank; and to buy blood. Except for some radio and television programs, our attention has been called to no evidence of expenditures for any of these purposes, nor have we found any such in the record.

There was evidence that a few television programs were put on but that they were commercial in character and terminated in January, 1951. Lasky, general manager of KPIX, testified that Bonded Television Co. (of which Berger was owner) was designated as the beneficiary of advertising contracted for by Schwalb Co. (television wholesaler) for certain television shows. The program consisted of veterans' information, activities and interviews; one of the programs was partially devoted to interviewing a Red Cross representative regarding the need for blood. Six fifteen-minute television programs were put on. The contract which provided for more shows was terminated on January 25, 1951, by Schwalb Co. Each program cost $144 for time (this did not include any costs for talent). The names Berger, Veterans Post or Jewish Star did not appear on the station records. These programs were introduced as being presented by Sentinel Television in cooperation with Bonded Television Co.; there was a commercial in the middle of the program and it closed with an acknowledgment of sponsorship. Sherman, an employee of an advertising agency and account executive for Schwalb Co., testified that he had discussions with Berger about the television programs; that they discussed the putting on of additional programs, programs of a minimum of 13 weeks; that these discussions were terminated when Berger said that he could not afford to pay for additional programs. Schwalb Co. had nothing to do with the format of the programs, this being handled by Berger. In so far as the advertising agency was concerned, these programs were designed to sell T.V. sets. The program was terminated by Schwalb Co. because it did not sell T.V. sets. There was evidence that one-half of the cost of these programs was paid by Best Publishing Co. and the other half by Schwalb Co. Arthur, an employee of KSAN radio station, testified that although no time was given to Berger, Berger had contacted him about spot announcements; that after investigation, they refused to deal with him. These conversations had to do with announcements concerning the need for blood. November 9, 1951, Berger paid KSAN $30 for spot announcements but no announcements were made.

It was stipulated that none of the defendants had ever obtained a permit as required by section 590 of the Police Code of San Francisco.

(1) Was it error for the court to admit in evidence photostatic copies of papers and documents which were illegally obtained from Berger?

March 12, 1952, upon affidavit of a deputy district attorney, the municipal court issued a warrant for the search of Berger's business premises, authorizing the seizure of property described as ‘certain documents, papers, letters, books, records, bank records and checks, business records, corporate books, which were and are being used as the means of committing a felony * * *,’ and directing that such property be brought before the court.

This warrant was executed by representatives of the district attorney and of the San Francisco police department. They removed numerous papers, records, documents and files, including tens of thousands of cards. Berger's counsel estimates the number of items at 150,000.

The officer's return of the search warrant to the municipal court stated that these records were needed as evidence in a proceeding then pending before the grand jury and should be retained by the office of the district attorney. Thereupon the municipal court made an order that the seized property ‘may be retained as evidence by the district attorney.’

March 13, 1952, the day following the seizure, Berger moved the municipal court for an order quashing the warrant. This motion was denied.

April 18, 1952, he petitioned the superior court for a writ of mandate requiring the municipal court to return the property to him. July 2, 1952, Honorable William T. Sweigert ordered that the writ be granted. In an accompanying well considered and thoroughly documented opinion, he held that the affidavit used in support of the application for the search warrant failed to set forth any ‘facts tending to establish this ground [that the documents and records in question were being used as the means of committing, and with intent to commit, a public offense], or probable cause for believing it to exist * * *’.

Concerning the urge that the documents should not be ordered returned because they were needed in a pending criminal proceeding, Judge Sweigert said: ‘Nor is it sufficient for respondents to assert, as they do assert herein, that the particular documents and records are necessary as evidence in a pending criminal proceeding. As the court said in Stern v. Superior Court, supra, [76 Cal.App.2d 772, 782, 174 P.2d 34], ‘While our courts have held that evidence illegally obtained may be admitted in evidence, there can be no justification for any court abusing its own process to secure the production of evidence in plain violation of the constitutional and statutory guarantees against illegal searches and seizures.’

‘However much this court believes that the proceedings of the District Attorney in this particular case have been well intentioned and for a good purpose; however much the court might surmise that petitioner herein might be a knave and a public nuisance; such feelings would not justify the approval of a procedure which is potentially more dangerous to the public, and its constitutional rights and welfare, than any such defendant could ever be. * * *’

By judgment entered July 16, 1952, the superior court ordered the search warrant quashed and that all property seized be returned to Berger. Subsequently, a peremptory writ to that effect was issued.

Meanwhile, prior to the making of the superior court's order for the return of Berger's records and papers, a representative of the district attorney made photostatic copies of many of the papers and cards—such thereof as he believed could be introduced in evidence to show the commission of the alleged crime. The fact that such photostats had been made was not disclosed to Berger nor to the court during the pendency of the proceedings before Judge Sweigert, nor was permission of the municipal court sought for the making or retention of such photostats.

Subsequently, learning that photostats had been made, Berger instituted a new mandamus proceeding, this time for the delivery to him of all copies which the district attorney had made. It appears from statements of counsel during the trial that the superior court ruled in the second mandamus proceeidng that the photostats could be retained by the district attorney, and that no appeal had yet been taken for findings had not yet been filed or judgment entered. Berger's counsel in his closing brief says, ‘For fourteen months by every maneuver possible while these mandate proceedings were pending, appellant delayed the criminal trial.'1 Yet, the district attorney still had in his possession the photostats of the illegally seized and returned documents, and was offering them in evidence.

Honorable Melvin I. Cronin, the judge who presided at the trial, indicated considerable reluctance but felt constrained by the law to admit these photostats into evidence. He said in part: ‘It does seem very frankly to be an abuse, in my mind, but I don't establish the law. The law is made by the higher courts, and it has been made in the case of People v. Mayen [188 Cal. 237, 205 P. 435, 24 A.L.R. 1383], and that is the one that gives us the principle to go by. * * * It does seem to be an abuse, though, to go out and illegally search the place and seize things, and Judge Sweigert wrote a very fine opinion in that matter. I concur entirely with his opinion in that other matter, but I still don't think that will in any way allow me to deprive the District Attorney legally of the right to introduce these photostatic copies in evidence.’

This rule that evidence is evidence no matter how illegally obtained was formulated at least as early as 1922. It found expression in People v. Mayen, 1922, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383. There the defendant, prior to the impaneling of the jury, moved for an order requiring the district attorney to return to him papers and other articles which had been seized under a clearly invalid search warrant. The motion was denied. Later, when some of the papers were offered in evidence, defendant objected upon the same ground but his objection was overruled. Upon his appeal from a judgment of conviction the judgment was affirmed. The Supreme Court found that no federal question was involved and held that the ‘parties aggrieved should be left to independent action to protect their constitutional rights, and obtain redress for their infringement, and if in such a proceeding error is committed, it should be determined in some appropriate method of review upon its own record, and not collaterally on appeal from a judgment of conviction in a criminal case in which the seized property was used as evidence.’ 188 Cal. at page 255, 205 P. at page 442. That leaves the litigant to the hazard of his independent remedies. Admissibility does not depend upon ‘exhaustion’ or ‘reasonable pursuit’ of such other remedies. He must get his papers and all copies of his papers back into his own possession before the opposite party tenders them in evidence.

The subsequent decisions, reviewed in People v. Kelley, 22 Cal.2d 169, 172–173, 137 P.2d 1, and in People v. Channell, 107 Cal.App.2d 192, 198–199, 236 P.2d 654, demonstrate that this is the governing rule, one from which no mere intermediate appellate court, such as ours, may deviate. Reluctantly we hold that the photostatic copies were not rendered inadmissible as evidence by the fact that they were made from documents which, as abundantly appears, were illegally seized and taken from the possession of the appellant.

Defendant's counsel fervently urges us to reexamine the rule and declare it inapplicable to such a case as this, but it is not competent for us to modify this rule. Possibly our state Supreme Court might wish to reexplore the situation in response to the invitation so to do which the Supreme Court of the United States extended as recently as February of this year. That court was discussing the admissibility of evidence illegally obtained and the incidence of the fourth amendment through the medium of the fourteenth amendment to the Constitution of the United States. During the course of that discussion the court said: ‘Never until June of 1949 did this Court hold the basic search-and-seizure prohibition in any way applicable to the states under the Fourteenth Amendment. At that time, as we pointed out, thirty-one states were not following the federal rule excluding illegally obtained evidence, while sixteen were in agreement with it. Now that the Wolf doctrine, Wolf v. People of State of Colo., 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, is known to them, state courts may wish further to reconsider their evidentiary rules.’ Irvine v. People, 347 U.S. 128, 74 S.Ct. 381 at page 384, emphasis added.

(2) Is the evidence sufficient to support an implied finding that, as to Berger, the alleged conspiracies were formed and existed?

The jury's disagreement as to defendant Carlton does not of itself vitiate the conviction of Berger. Carlton was not the sole alleged coconspirator. Other persons, whose names were unknown to the grand jury, were alleged as coconspirators. See People v. McCollum, 26 Cal.App.2d 89, 96, 78 P.2d 1030. The evidence of Graham's participation would support a finding that he and Berger entered into the conspiracy charged.

It is true, as appellant emphasizes, that no ‘witness testified that he, or any other person entered into any corrupt or other agreement or combine with appellant.’ But conspiracies are rarely proved that way. ‘A conspiracy can generally be established only by circumstantial evidence. It is not often that the direct fact of a common unlawful design can be proved other than by the establishment of independent facts bearing on such design.’ People v. Robinson, 43 Cal.2d 132, 271 P.2d 865, 868.

The evidence summarized earlier in this opinion supports the jury's implied findings that Berger conspired with Gramam to commit the offenses charged.

It was not necessary that Graham be a business partner instead of an employee of Berger. Nor is it especially significant that Berger conducted his business before Graham's affiliation with him in much the same manner (solication of ads by telephone, for example) as he did thereafter.

As to the over acts, it is not necessary to prove commission of all of them by all of the conspirators. ‘It is sufficient if the jury found that at least one of the conspirators committed at least one of the overt acts alleged.’ People v. Shaw, 115 Cal.App.2d 597, 601, 252 P.2d 670, 673. Among the overt acts charged were these: That after the formation of the conspiracy and since March 1, 1951, and in pursuance of the objects of the conspiracy, Alfred Berger and Nellie Kelly Carlton maintained and occupied premises at 1119 Mission Street, San Francisco; caused to be printed a newspaper known as Veterans Post; caused telephone calls to be made in San Francisco and elsewhere; and employed telephone salesmen. The evidence supports the implied finding that Berger performed each of those acts. It was also charged as overt acts, that Berger and Carlton stole $10 from E. J. Furrer, $10 from Theodore C. Muegge, D.D.S., and $40 from Vernon Shea. There is substantial evidence that Berger performed each of those acts. Berger says there is no evidence that he ‘knew’ of any of these three solicitations but he does not contend the solicitations were not made by his agents or that he did not receive the money. As to the $40 from Vernon Shea, he claims there is a fatal variance between pleading and proof in that Shea contributed but $20, not $40. That does not impress us as a fatal variance. Even if it were, the proof of his commission of any of the other overt acts mentioned was adequate to sustain the charge.

Some 30 or more persons testified concerning solicitations made of them by telephone. The district attorney announced that he planned to call 15 or more additional witnesses to testify to similar solicitations. The trial court announced that further testimony of such witnesses would be cumulative and that more should not be called by the district attorney. Defense counsel and the district attorney were in accord with those views as expressed by the court. Yet, Berger now argues that testimony concerning so small a number out of some 150,000 telephone calls is inadequate. He should not be heard to object to that which the district attorney did or failed to do upon the understanding which both counsel had with the trial court. Moreover, that is an argument which at most bears upon the weight the trier of the facts should give to the evidence.

We conclude that the evidence amply meets the test: ‘The decision of the jury, which has been approved by the trial judge in the denial of a motion for a new trial, will not be set aside on appeal unless there is no substantial evidence upon any hypothesis whatsoever to support the verdict of the jury and the conclusion of the trial court.’ People v. Robinson, supra, 43 Cal.2d 132, 271 P.2d 868.

(3) Did the court err in sustaining objections to questions by Berger, upon cross examination of a prosecution witness, designed to ascertain the number of letters of inquiry mailed by the district attorney to persons whom Berger had solicited, and the number responding who claimed misrepresentations had been made?

We do not perceive that such a question was within the scope of the direct examination of that witness and defendant has failed to show that it was. Moreover, the information it might elicit would be hearsay and thus incompetent as proof of any material or relevent fact.

(4) Is there sufficient evidence of a conspiracy to commit grand theft?

There is no evidence that more than $40 was taken from any one person, far less than the amount required to constitute grand theft, Pen.Code, § 487, and, of course, even though the aggregate of petty thefts may have amounted to many thousands of dollars, they can not be added together and merged to constitute grand theft.

But the test is what Berger and others ‘conspired’ to commit, not what they accomplished. The jury impliedly found that they ‘conspired’ to commit grand theft as well as petty theft. The trial judge approved that finding by denying a new trial. We too must approve because we can not say that ‘there is no substantial evidence upon any hypothesis whatsoever to support’ that finding. People v. Robinson, supra, 43 Cal.2d 132, 271 P.2d 865.

The evidence indicates that this was a conspiracy to obtain donations in any amount by false representations. The parties to the offense were willing to take any amount that was offered. Indeed, the solicitors did not specify any sum. They asked generally for ‘donations' and ‘no particular amount’ was involved. They asked for ‘money’ in general and for ‘contributions' in general. The jury was warranted in finding that the conspiracy contemplated taking any sum, great or little and thus constituted a conspiracy to commit grand theft as well as petty theft.

(5) There was but one conspiracy, one agreement, not two; hence, but one offense, not two.

The evidence is substantial that Berger and Graham agreed and conspired to commit grand theft and petty theft and to do so by soliciting funds without the license prescribed by municipal ordinance.

‘The conspiracy, that is to say, the unlawful agreement or combination, is one offense, no matter how diverse its objects.’ People v. Cossey, 97 Cal.App.2d 101, 110, 217 P.2d 133, 140. It necessarily follows that to prove two conspiracies, two agreements must be shown. Where, as in this case, the evidence as to an agreement is circumstantial, there being no direct evidence that the parties entered into an agreement, can it be said that the same evidence, covering the same period of time and the same acts gives rise to an inference that two agreements have been entered into? We think not. To permit such an inference to be drawn from the sole fact that two or more crimes were contemplated or committed is neither logical nor sound. The burden is upon the prosecution to show that two agreements have been entered into. People v. Cossey, supra, 97 Cal.App.2d 101, 111, 217 P.2d 133. It does not sustain that burden where as here the record shows that the crimes which were intended to be committed can not be separated as to time, as to acts, or as to other circumstances which might give rise to the inference that two independent conspiracies had been entered into.

In such a case, it is competent and proper, under authority of section 1260 of the Penal Code, for the reviewing court to modify the judgment to provide for punishment of but one offense. People v. Cossey, supra, 97 Cal.App.2d 101, 114, and 115, 217 P.2d 133 and cases there cited. The modification which in this connection we are making is not intended to and does not modify, impair or affect the orders heretofore made by the trial court suspending sentence and granting probation. Those orders will continue operative until and unless modified by the trial court.

(6) Were photostatic copies of certain records and papers erroneously admitted in evidence?

The originals were of two classes: (a) A certain bank's ledger sheets of the accounts of two of its depositors, the Best Publishing Company and the Jewish Star, and (b) the records and papers which were illegally taken from Berger's office and later returned to him.

To prove the items in the bank accounts, the prosecution called to the stand one of the bank's tellers. He was shown certain photostatic copies of the ledger sheets of the bank accounts of the depositors mentioned. He testified that he was familiar with all original records of accounts in the bank and that he was familiar with the records of the accounts involved here. He stated that the photostats were true and correct copies of the original ledger sheets and that the originals were on file in the bank and that the originals were kept in the regular course of business.

During the preliminary interrogation of the bank official, counsel for the defense at one point interposed the objection that ‘it is calling for the witness' conclusion,’ adding ‘there are laws specifically devised for the method of introducing photostats.’ When the photostats were actually offered in evidence, the objection was simply ‘that no proper foundation has been laid for the introduction of photostats of anything.’ Our reading of the record indicates that the trial court and the district attorney understood that the basis of the objection was that the originals were not shown to have been lost or destroyed. Appellant's briefs upon this appeal indicate that such was the ground of objection which he, too, had in mind. In his opening brief, at page 62, he asks if these photostats are ‘admissible over objection, without any foundation’ when the originals are in the possession of a bank, and says, at page 67, ‘we are primarily concerned with the objections on the grounds that no proper foundation was laid for the introduction of secondary evidence.’ In his closing brief, at page 24, he says, ‘there is no existing law which permits copies to be introduced where originals are available.’ That, obviously, is too broad a statement, an inaccurate statement.

It is true that there was no showing that the originals had been lost or destroyed. Indeed, the bank teller testified that the originals were on file at the bank. It is also true that the photostats were not submitted in conformance with section 1920b of the Code of Civil Procedure, which requires certification, nor did they qualify under section 1953i of that code, which requires that photostats be made in the regular course of business. However, it is our opinion that under the circumstances here present it was incumbent upon counsel for defendant to make a more specific objection to the introduction of these photostats. In the absence of such specification, we find no error in the ruling of the trial court. ‘An objection must usually be specific and point out the ground or grounds relied upon in a manner sufficient to advise the trial court and opposing counsel of the alleged defect so that the ruling may be made understandingly and the objection obviated if possible.’ People v. Porter, 82 Cal.App.2d 585, 588, 186 P.2d 704, 706, holding that an objection that a “proper foundation has not been laid” was too general. See also People v. Alves, 123 Cal.App.2d 735, 738–739, 267 P.2d 858; Nofziger Lumber Co. v. Solomon, 13 Cal.App. 621, 626–627, 110 P. 474.

The same principle applies to the photostatic copies of records and papers illegally taken from Berger's office. We have examined the portions of the record cited by defendant in his opening brief and we find therefrom that his objection to these photostats (aside from the fact that they were made from records which had been illegally siezed, a question which we have already considered) was simply ‘that there is no proper foundation laid.’ That, like the similar objection to the other photostats was too general.

The testimony that all of the property taken from Berger's office was kept in a locked room until returned to him, and that these photostats were made from some of those documents and papers while in the possession of the district attorney, was a sufficient showing to support the trial judge's implied finding that these photostats were reproductions of the originals.

The judgment is modified to read ‘Whereas, the said Defendant, Alfred Berger, having been duly convicted in this Court of the crime of Felony, to wit: Conspiracy to commit Grand Theft and Petty Theft and to commit a Misdemeanor (Violation of Section 182 of the Penal Code), it is, therefore, ordered, adjudged and decreed that the said Defendant, Alfred Berger, be punished by imprisonment in the State Prison of the State of California, at San Quentin, California, for the term prescribed by law.’ As so modified the judgment and the order denying the motion for a new trial are affirmed. The appeal from the order denying the motion in arrest of judgment is dismissed because taken from a nonappealable order.

FOOTNOTES

1.  The indictment was presented and filed March 27, 1952. Defendants' pleas were entered May 13th and the cause was continued for trial until June 16, 1952. It was thereafter continued from time to time until June 22, 1953, when it actually commenced.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.