PEOPLE v. BURT

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. John James BURT, Defendant and Appellant.

Cr. 5267.

Decided: February 21, 1955

Martha Malone Jefferson, Bernard S. Jefferson, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for respondent.

In an information filed by the District Attorney of Los Angeles County, defendant was accused of a violation of section 653f of the Penal Code, in that he solicited another to commit and join in the commission of the crime of extortion. Defendant pleaded not guilty, trial by jury was waived and the cause was tried by the court. The People's case was submitted upon the testimony adduced at the preliminary examination and further evidence presented at the trial. Defendant was adjudged guilty and his motion for a new trial denied. Proceedings were suspended and defendant granted conditional probation.

From the ‘judgment’ (see Penal Code, Sec. 1237), and the order denying his motion for a new trial defendant prosecutes this appeal.

The factual background surrounding this prosecution may be epitomized as follows:

On March 8, 1954, at about 4:00 o'clock in the afternoon, defendant approached Joyce Hampton and her sister at an Owl Drug Store in the city of Los Angeles. He asked Joyce Hampton if she would be interested in a position paying approximately $400 a week. He asked her if he could call her or suggested that she might call him. Mrs. Hampton said she would prefer calling him. He gave her the name of the hotel where he was staying and told her she could reach him there.

On March 10, 1954, at about 8:00 in the evening, the defendant and Joyce Hampton met at her home. He told her he wanted her to go to various hotels and meet middleaged men, and attract their attention so that they would want to make dates with her. She was then to suggest to them the idea of taking her to Tijuana. Once there, she was to contact a man in Tijuana, and then she and her escort would register at a motel. In the motel, the man she had contacted was to represent himself as a police officer. He was to come into the room and when he discovered Joyce Hampton was supposed to be a minor, he would accept money as a bribe very reluctantly. On Friday, the 12th of March, the defendant called Joyce Hampton on the telephone and said he had made arrangements for her to go out with the defendant's supervisor on Monday night, the 15th. The defendant informed her not to feel sorry for the supervisor, that he would be ‘set up as the first victim’.

The defendant and Joyce Hampton met again the following Monday, the 15th, at her home. At that time, the defendant told her that the supervisor had been called out of town and that he would not be going along that evening. Joyce Hampton then asked him to give her the details of how he wanted her to go through with the ‘job’. He told her she was to meet middle-aged men and go down to Tijuana. He told her he had made definite arrangements over the previous weekend with his contact in Tijuana. Upon reaching Tijuana, Joyce Hampton was to call the contact, Arnold. The rest of the scheme can best be told by the testimony of Joyce Hampton:

‘The Witness: He told me—he said ‘When you get down to Tijuana, you call Arnold and then when you go to have dinner or what not, then he will come in to where you are and he will know that you are there. Then when you go to the hotel,’ he said, ‘You and your victim will be in the room.’ He said, ‘You might possibly have to remove your dress in order to make it look more logical,’ He said, ‘and once there then Arnold will come in and knock on the door and he will come inside.’

‘Then he told me that Arnold would ask for identification and I was to tell him that I was 21 or 22, and then this Arnold was to ask for identification and I was to show him any card at all and he was to say, ‘Well, you are a minor. I am very sorry, but we will have to take you in,’ and then if the man didn't—if the victim didn't think of bribing or attempting to bribe the police officer, I was supposed to become hysterical and tell him to pay him off, tell him to ‘Pay him off. Pay him off. I can't go to jail. I can't,’ and then very reluctantly the policeman, or Arnold, was supposed to accept the bribe.'

Joyce Hampton's sister was present at the conversation at the Owl Drug Store on March 8, 1954, and the conversation of March 15, 1954.

On March 13, 1954, Joyce Hampton made contact with the Police Department. Arthur E. Winter of the Bunco-Fugitive Division, Los Angeles Police Department, was one of the investigating officers in this case. On March 15, 1954, he was at Joyce Hampton's house at 5626 Smiley Drive, Los Angeles. He was present at the house when a listening device was installed at approximately 4:30 p. m. The microphone was attached to the rear of the television set in the living room. The recording device was in the bedroom, adjacent to the living room. It was possible to listen to what was being said through the microphone at the time it was being recorded. The device was in working condition at the time it was installed.

Officer Winter heard the conversation by means of the device, and identified the voices of the persons involved in the conversation as the defendant, Mr. Burt, Mrs. Hampton and her sister, Mrs. Ryan. The conversation took place on the same day the device was installed, at approximately ten minutes after 7:00 and ended approximately at a quarter to 8:00 The substance of the conversation, in the words of Officer Winter, is as follows:

‘A. Well, there was a knock on the door and somebody opened the door and the defendant said, ‘Hello there,’ and Mrs. Hampton said, ‘Good evening, Mr. Burt.’ They then went into the room and the defendant said, ‘Everything is all fixed.’ He says, ‘We can't miss,’ and she went on. She asked him ‘How do we go about it?’ He says, ‘Oh, by the way.’ He said, ‘My boss won't be with us tonight. We will be alone.’ And he then said that he would talk to her further in his car while they were driving downtown. She said, ‘No.’ She said, ‘Let's get the thing straightened out here and go over the details and then we will go downtown and go out and have a time,’ and he started to relate that he had a Mexican by the name of Arnold in Tijuana who was a former police officer and who had a gun and a badge, and that he would pose as a police officer and that she was to induce her client to go to Tijuana with her. As they reached Tijuana, why, she was to contact Mr. Arnold; that he was coming to the cafe, if they were having a drink, that she could have a drink with a man and not suggest what cafe they would go to, but if the client suggested having a drink she was to go along with him.

‘While at the cafe she was to excuse herself and call Mr. Arnold. He was to come in and take a look at she and the cline (client?) and then he would go to a designated hotel, and to make it look natural, that he would be talking with the desk clerk at the time they registered in the hotel or motel. He named off a couple of hotels and motels that were in Tijuana, and he said he couldn't see how the deal would possibly miss, and that he would, at a given signal, why, his friend Arnold would come into the room and place the man under arrest; that they would get the money from the man on the promise of not arresting him, and that he had a man lined up who was his supervisor, and he name was Bob Eldred, and that he knew he would be a good victim because he had some property and some money in the bank, and they discussed how much they could get out of it, and he said, ‘Well, at least $1,000.00’ He said, ‘I will have this Arnold come in at the right time,’ and he said, ‘then when the agreement is made to get the money,’ he said, ‘we will have Arnold tell the client that he will let him go,’ but that he will detain Mrs. Hampton, hold her as hostage in case the client would give Arnold a check and didn't have enough cash with him, and give him a check, why, they would hold Mrs. Hampton as a hostage until the check cleared the bank, and that Arnold would take the client and see that he left Tijuana.

‘He said, ‘He might even follow him as far as the border,’ and that everything was fixed in Tijuana, the Chief of Police was taken care of, and there was no possibility of them getting into any trouble.

‘He said, ‘We will start on a small scale. We will just rent one room in a motel, and pretty soon we will be able to rent the whole motel when things get going.’'

The tape recording was offered and received in evidence as People's Exhibit 1.

After listening to the foregoing conversation the police officer placed defendant under arrest and interrogated him as to when he ‘conceived the idea of taking middle-aged men to Tijuana’, to which defendant replied that about four months previously, that ‘he had been working on different schemes for approximately a year, and about four months ago he had gone to Tijuana and while there he got to thinking that American people didn't have any rights there and that it would be a perfect spot to commit this type of shakedown. He couldn't see how he could possibly go wrong, and that he contacted a mexican cab driver there by the name of Arnold, and that Arnold had agreed to pose as a police officer.’

Testifying in his own behalf, defendant admitted having talked with Joyce Hampton and having suggested to her the matter of going to Tijuana with various men and obtaining money through some police officer in Tijuana, but that he did not intend to have her carry through those conversations or perform the acts suggested in the conversations. Rather, his intention was to know Mrs. Hampton socially. He wanted to know her socially because for about seven or eight months previous to his meeting Mrs. Hampton his wife had been pregnant and it had not been possible for him to have sexual relations with his wife during that period. That he began noticing young ladies and was particularly attracted by Joyce Hampton; so he wanted to meet her and know her rather intimately. That he concocted this scheme as a means of impressing her. That he did not intend at any time to permit her actually to go to Mexico with someone and carry through this plan. That when he was asked questions by Mrs. Hampton as to how the plan would work out, he ‘developed the logic of the thing in my mind to satisfy the questions'. Defendant further testified that at no time did he tell Sergeant Winter that he did not intend to have Joyce Hampton ‘go through with the plan’. That he did not do so because he (defendant) ‘was dumb with fear’.

As grounds for reversal appellant first contends that the evidence is not sufficient to sustain the judgment of conviction because it establishes only that he solicited Joyce Hampton in California to join in the commission of the crime of extortion in the Republic of Mexico. That the only acts relating to the crime of extortion which took place in the State of California were that Joyce Hampton was to make a ‘date’ with a man and then suggest to this man that he take her to Tijuana, Mexico, where all the acts with reference to extorting money from the victim were to take place. That the crime of extortion in California is defined and prohibited by sections 518 and 519 of the Penal Code, neither of which sections make reference to the place of commission of the offense of extortion. That therefore, it must be assumed that ‘the Legislature did not intend to regulate conduct taking place outside the borders of the state.’ People v. Buffum, 40 Cal.2d 709, 715, 256 P.2d 317, 320.

Appellant relies heavily upon the case just cited. Therein the accused were charged with a violation of section 182 of the Penal Code in that they conspired to use certain means to induce miscarriages, contrary to section 274 of the Penal Code. As to the factual background, it appears that four pregnant women went to the office of the defendant Dr. Buffum to solicit his aid in inducing miscarriages. Dr. Buffum refused to perform the abortions but took the telephone numbers of three of the women and told cash she would receive a call. Later Dr. Rankin telephoned the women, told them the price they must pay, arranged to meet them at a designated place in Long Beach, California, and indicated that he would transport them to the place where the abortions were to be performed. The fourth woman made similar arrangements with Rankin. The latter met the women at the appointed time and place and drove them in his automobile to Tijuana, Mexico. And, with the assistance of Dr. Rankin, another man performed an operation upon each of the women. Recognizing that under the law of this state no agreement amounts to a conspiracy unless some act in furtherance of the corrupt agreement be done within this state, the Supreme Court pointed out that the object of defendants' agreement as alleged in the indictment was “to violate section 274, Penal Code of the State of California.” That no other unlawful purpose being stated in the indictment defendants could not be punished for conspiracy unless the doing of the thing agreed upon did amount to a violation of section 274. That the statute making no reference to the place of performance of an abortion, it must be assumed that the legislature did not intend to regulate conduct taking place outside the borders of this state, and that for the same reason, section 182 of the Penal Code should not be read as applying to a conspiracy to commit a crime in another jurisdiction. Under the peculiar factual situation present in the Buffum case, the court concluded that the acts of the accused shown in evidence amounted only to ‘preparation’ and not ‘part’ of the crime itself. That to read a statute as authorizing the punishment by one state of acts which do not amount to an attempt to commit a crime, but are merely preparatory to the commission of a crime in another state would seem tantamount to an effort to regulate conduct in the other jurisdiction.

The cause now engaging our attention, is manifestly distinguishable from the foregoing case relied upon by appellant. While, as heretofore pointed out, our law provides that no agreement amounts to a criminal conspiracy unless some act in furtherance thereof be done in this state, the solicitation charged in the instant case under section 653f requires no overt act in furtherance thereof. The crime is complete when the unilateral act of solicitation takes place, without anything further being done. The gist of the offense is the solicitation of another to commit one of the offenses mentioned in section 653f, and does not envision the actual commission of the crime. A person who solicits another to commit or to join in the commission of one of the offenses mentioned in section 653f is guilty of a violation of that section even though the criminal offense solicited to be committed is never in fact committed, and guilt would attach at the time the solicitation was made even though the other person to whom it was addressed rejects the importunity. People v. Humphrey, 27 Cal.App.2d 631, 637, 81 P.2d 588; People v. Haley, 102 Cal.App.2d 159, 164, 165, 227 P.2d 48.

The offense denounced by section 653f of the Penal Code is committed at the time and place when and where the accused makes the solicitation and it suffices if that place is within the jurisdiction of the court. Manifestly, the legislative purpose in enacting the code section here in question was to protect the inhabitants of this state from being led into the paths of evil doing and transgression of law and order. In the accomplishment of that purpose it matters not whether the places suggested by the solicitor for evil doing be within or without the borders of this state. The acts and conduct of appellant herein cannot be regarded as merely preparatory and as not constituting a direct unequivocal act done toward the commission of the offense specified in section 653f, because the gist of the offense is the solicitation, and once that occurs nothing remains to be done to establish a violation of the pertinent code section. Contrary to appellant's contention, the section does not seek to impose punishment for acts done outside the boundaries of California but, for acts done within the state, and no extraterritorial issue is involved.

Appellant further urges that had the legislature intended by section 653f to cover solicitations to commit crimes outside of this state appropriate language would have been used to so indicate as was done in the ‘Gambling Ship Regulation Law,’ adopted in 1929, Deering's California General Laws, Act 2862, wherein it was made unlawful for a person within this state to solicit another to visit any gambling ship and where there was added the phrase, ‘whether such gambling ship be within or without the jurisdiction of the state of California’. However, when viewed in the light of the objectives to be accomplished and the evils sought to be remedied, we are persuaded, for the reasons hereinbefore stated, that a reasonable interpretation of section 653f of the Penal Code here involved, makes manifest the conclusion that it was the legislative intent to denounce as a crime, complete in itself, the solicitation within this State of a person to commit any of the crimes mentioned in said section regardless of the locale where the solicited crime was to be committed. To hold otherwise would, in our opinion, do violence to reason and challenge credulity.

Finally, appellant insists that the evidence is not sufficient to sustain the judgment of conviction because the alleged offense was not proved by the testimony of two witnesses or one witness and corroborating circumstances, as required by Penal Code section 653f. This contention cannot be sustained. There is in the record other corroborating evidence in addition to the testimony of Sergeant Winter and Joyce Hampton. There is the tape recording of the conversation on March 15, 1954, between appellant and Mrs. Hampton in the latter's home, fortified by the testimony of appellant himself at the trial, in which he admits having suggested to Joyce Hampton the plan heretofore outlined, or her going to Tijuana, Mexico, with various men and extorting money from them.

It is a recognized principle of law that the corroborative evidence need not be strong nor even sufficient in itself, without the aid of other evidence, to establish the fact in issue. People v. Tinnin, 136 Cal.App. 301, 305, 28 P.2d 951; People v. Martin, 19 Cal.App. 295, 301, 125 P. 919. And, if the corroborating evidence tends to connect the defendant with the commission of the crime it is unnecessary that it extend to all the elements of the offense or to every fact and detail included in the testimony to be corroborated. People v. Andrew, 43 Cal.App.2d 126, 129, 110 P.2d 459; People v. Black, 45 Cal.App.2d 87, 101, 113 P.2d 746; People v. Martinez, 19 Cal.App.2d 599, 603, 66 P.2d 161. Though the corroborating evidence be slight and circumstantial, it is sufficient if the connection of the accused with the alleged crime may be reasonably inferred from it. People v. Whittaker, 18 Cal.App.2d 396, 399, 63 P.2d 1202; People v. Suter, 43 Cal.App.2d 444, 452, 111 P.2d 23; People v. Wilson, 25 Cal.2d 341, 347, 153 P.2d 720. And, sufficient corroboration may be furnished by the defendant's own testimony or by admissions made by him. People v. Griffin, 98 Cal.App.2d 1, 25, 219 P.2d 519 and cases therein cited. Under the rules just enunciated the corroborative evidence reflected in the record before us answers the demand of section 653f, Penal Code.

For the foregoing reasons the ‘judgment’ (i.e., the order granting probation, see Penal Code, Sec. 1237), and the order denying defendant's motion for a new trial are, and each is affirmed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.