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District Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ray PROCTOR, Defendant and Appellant.*

Cr. 5475.

Decided: December 21, 1955

D. Wendell Reid, Van Nuys, Paul P. Selvin, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Norman Sokolow, Deputy Atty. Gen., for respondent.

Defendant was accused by information of soliciting another to commit the crime of burglary. Penal Code, § 653f. He chose to be tried by the court without a jury and the case was by stipulation submitted on the evidence recorded at the preliminary hearing. He was adjudged guilty of having violated Penal Code, § 650 1/2, a lesser and included offense. His motions for a new trial, for a stay of execution, to set aside and arrest the judgment, and his application for probation were all denied. He was sentenced to imprisonment in the county jail for six months. He has appealed from the judgment, and the order denying his motion for a new trial on the grounds that (1) the proposition that section 650 1/2 is a lesser and necessarily included offense is incompatible with section 653f; (2) a violation of section 650 1/2 requires proof of injury to person or property of another or an endangerment of public peace or open outrage of public decency, none of which is required in proof of a violation of section 653f; (3) the evidence does not support the judgment.

On July 23, 1954, one Gerald G. Cohen, a Los Angeles police officer met appellant at about 5:15 p. m. The officer was accompanied by Officer Morales as they visited appellant at the latter's residence on Magnolia Boulevard in Los Angeles County. It stood to the rear of a real estate office. Morales introduced Cohen as ‘Jerry Michelli, a good friend’; appellant promptly remembered ‘Michelli’; boasted of his own good memory and explained that that was the reason he stayed out of trouble. As the men sat in appellant's living room discussing the latter's business, appellant gave ‘Michelli’ two keys. As he tendered the keys to the officer, appellant remarked that he had a ‘way where we can all make a fast buck * * * The people normally are not home during the day and you guys can go over there and take out whatever you want. The best thing to take is money or jewelry as I can get rid of jewelry the easiest.’ He suggested that the officers call, knock and if some one answered, they might say they were selling magazine subscriptions; if no one answered, they should open the door, make sure no one was there, take whatever they wished, but to remember that he would expect a ‘cut.’ He explained that both homes were furnished and some money or jewelry would be found; that the inmates would be gone. He thereupon supplied Officer Cohen with the street addresses of the two houses whose doors the keys fitted and appellant stated that he would have other things for them to do and warned them to throw away the keys after using.

Officer Cohen called successively at the houses of Haskell and Lanark Streets. At the first he found Mrs. Dillingham at home, informed her that he was a policeman, inserted the key he had received from appellant and opened the door. Finding no one at the Lanark address, he unlocked the door, removed the key and relocked the door. Appellant was arrested on August 4, 1954. Immediately thereafter, Cohen called on him at the Valley jail without disclosing his official identity. Appellant promptly inquired whether Cohen had been to the two houses. To the officer's reply that he had been to one house where men were at work and he did not enter, appellant said, ‘That's fine; I don't think they know anything about that.’ Mrs. Dillingham testified that her home was 7356 Haskell Avenue; that she saw the officer unlock her front door; that she did not know appellant and had not given him any key. Mrs. Miller testified that she lived at 10549 Lanark Street, Sun Valley. She displayed her key to her home which the judge laid by the side of the key that appellant had given to Cohen, and found them identical. She had not consented that anyone might take anything from her home.

Penal Code section 653f provides that every person who solicits another to commit burglary may be imprisoned in the county jail or in the state prison, but that ‘such offense must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.’

Appellant contends that section 650 1/21 includes indispensable elements which are not necessary to a violation of section 653f2 .

Although the trial court acquitted appellant of having violated section 653f, it convicted him of a lesser offense, necessarily included in 653f, to wit a violation of section 650 1/2. The basis for such conclusion is the provision of the latter section which makes a criminal of any person who does an act which endangers the public peace or outrages public decency whether such purpose is accomplished or not. The solicitor is also guilty of a misdemeanor. Appellant contends that a violation of section 650 1/2 requires proof of matters not required to prove a violation of section 653f. But the portion of 650 1/2 which relates to section 653f forbids the wilful commission of an act which seriously endangers the public peace. Also, the act of soliciting a person to commit a burglary necessarily involves endangering the public peace and the outraging of public decency, inhibited by section 650 1/2. It could not, with reason, be denied that the act of soliciting a person to burglarize the homes of his neighbors involves a breach of the peace which includes all violations of the public peace including the offense of disturbing the public tranquility of a community. Who could doubt that the act of enticing a person to burglarize the homes of a community would, when publicized, cause consternation and alarm? If it will do that, it tends to induce another to disturb the peace and quiet of the community. Inasmuch as burglary, like trespass, involves an invasion of property rights and is a ‘menace to the preservation of public peace and order,’ it is unavoidable that to solicit the performance of a burglary includes the commission of an act which seriously endangers public peace. This is emphasized by a consideration of the court's observation that the phrase ‘breach of the peace’ is to be taken in its generic sense. In re Emmett, 120 Cal.App. 349, 357, 7 P.2d 1096. Not only does the act of abetting a felony constitute a major crime, but one who threatens to do so may be compelled to give an undertaking that he will not execute his threat. Penal Code, §§ 701–714. Inasmuch as the statute denouncing burglary is designed to protect property and habitation, one who threatens to burglarize a home may be forced to give security against his criminal act.

Appellant contends that an offense is not a ‘lesser, necessarily included offense’ within another offense if the elements indispensable to the lesser are unnecessary to the greater offense, citing People v. Whitlow, 113 Cal.App.2d 804, 249 P.2d 35, and People v. Kennedy, 133 Cal.App.2d 693, 284 P.2d 898. In the Whitlow case, the accusation was for violations of Health and Safety Code section 11163 (forbidding a physician to furnish a narcotic to another not under his treatment, etc.) and section 11164 (forbidding a doctor to prescribe a narcotic to an addict, etc.). The trial court without a new pleading had reduced the charges to lesser included offenses defined by section 111653 . The latter merely inhibits the issuance of a prescription that is false or fictitious. The defendant pleaded guilty. Subsequently the court set aside the judgments of guilty of violating section 11165 on the ground that in violating that section, the offender must not always violate sections 11163 or 11164. This court held the order to be correct, because a violation of section 11163 does not necessarily involve the issuance of a ‘false or fictitious prescription.’ Under sections 11163 and 11164, one person may furnish a narcotic to another without issuing a prescription, false or fictitious or otherwise.

In the Kennedy case, he was charged with violating section 288a of the Penal Code which proscribes sex perversion. The jury were instructed that the act denounced by section 702 of the Welfare and Institutions Code, to wit, contributing to the delinquency of a minor, is a lesser offense to that forbidden by section 288a and that the jury could find the defendant guilty of violating section 702. Accordingly, a verdict convicting the accused of contributing was returned. It was held that the crime of section 702 was not necessarily included in section 288a because the lesser offense was there applicable ‘only in the event that the victim was a minor of less than twenty-one years of age, an element not required for the crime charged.’ 133 Cal.App.2d at page 694, 284 P.2d at page 899. It cannot be denied that the minority of the victim designated in section 702 is not relevant to the question of guilt under 288a. The age of the violator of the latter is wholly immaterial. Section 1159 of the Penal Code4 was not intended to authorize the trial court to convict the accused of just any lesser offense. It must be included in the greater offense charged. A person accused of having solicited another to commit a burglary, section 653f, is at the same time charged with having committed an act which endangers public peace and outrages public decency. While the trial court might correctly have found appellant guilty under 653f, it was not error to convict him of having violated section 650 1/2 of the Penal Code.

Judgment affirmed.


1.  Penal Code, § 650 1/2: ‘A person who wilfully and wrongfully commits any act which seriously injures the person or property of another, or which seriously disturbs or endangers the public peace or health, or which openly outrages public decency, or who wilfully and wrongfully in any manner, verbal or written, uses another's name for accomplishing lewd or licentious purposes, whether such purposes are accomplished or not, or who wilfully and wrongfully uses another's name in any manner that will affect, or have a tendency to affect the moral reputation of the person whose name is used, generally, or in the estimation of the person or persons to whom it is so used, or who with intent of accomplishing any lewd or licentious purpose, whether such purpose is accomplished or not, personifies any person other than himself, or who causes or procures any other person or persons to identify him, or to give assurance that he is any other person than himself to aid or assist him to accomplish any lewd or licentious purpose, for which no other punishment is expressly prescribed by this code, is guilty of a misdemeanor.’

2.  Penal Code, § 653f: ‘Every person who solicits another to offer or accept or join in the offer or acceptance of a bribe, or to commit or join in the commission of murder, robbery, burglary, grand theft, receiving stolen property, extortion, rape by force and violence, perjury, subornation of perjury, forgery, or kidnaping, is punishable by imprisonment in the county jail not longer than one year or in the state prison not longer than five years, or by fine of not more than five thousand dollars. Such offense must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.’

3.  Section 11165, Health & Safety Code: ‘No person shall issue a prescription that is false or fictitious in any respect.’

4.  ‘The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.’ Penal Code, § 1159.

MOORE, Presiding Justice.

FOX, J., and ASHBURN, Justice pro tem., concur. Hearing granted; McCOMB, J., not participating.

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