The PEOPLE of the State of California, Plaintiff and Respondent, v. Geraldine Elizabeth CARMICHAEL, aka Jerry Dean Michael, Edward J. Comstock, Samuel Schlisman, Andrew Farrell, Defendants and Appellants.
Geraldine Elizabeth Carmichael, Edward J. Comstock, Samuel Schlisman and Andrew R. Farrell, along with a number of other individuals who have not appealed, were convicted of conspiracy to commit grand theft and to violate various sections of the Corporations Code. Additionally, with the exception of Farrell, they were convicted of 28 counts of grand theft and three counts of violating the provisions of the California Corporations Code.1 Defendant Farrell was convicted of all of the charges with the exception of one count of grand theft.
This prosecution, which was initiated by an indictment returned by the Grand Jury of Los Angeles County, grew out of the defendants' activities in connection with a scheme which was ostensibly aimed at promoting the production and sale of an automobile know as the “Dale” and represented to be a revolutionary low-cost, high-performance, three-wheel vehicle.
THE TWENTIETH CENTURY MOTOR CAR CORPORATION
At the heart of the scheme was the Twentieth Century Motor Car Corporation (Twentieth Century), a Nevada corporation formed in August of 1974 by defendant Carmichael, who assumed the role of president, and defendants Schlisman and Comstock, each of whom assumed a position as vice president. Twentieth Century was never qualified to issue or sell stock in California.
Fund raising activities of Twentieth Century took three forms: (1) sales of options to purchase cars, (2) sales of dealerships, and (3) sales of stock options of varying types. Several of these latter type investments were sold as a condition of employment to individuals who were hired by Twentieth Century in differing capacities.
The inducement to invest in Twentieth Century came from representations made by defendants in person, as well as in various promotional activities which included newspaper advertisement, appearances by Carmichael on TV and radio shows, demonstrations at auto shows, video cassette presentations and most importantly an elaborate and widely distributed advertising brochure. (We set out the language of that brochure as Appendix A.)
In summary, the representations portrayed a grandiose plan to mass produce the “Dale” commencing with the production of 500 cars in June of 1975, with production increasing to 5,000 cars per month in September 1975, and a total of 88,000 cars in the first year. Distribution was to be accomplished through 1,100 dealerships nationwide.
The “Dale was described as a practically damage-proof automobile which would get upwards of 70 miles per gallon of gasoline and obtain speeds up to 85 mph. Extravagant claims were made as to the stability, roadability and comfort of the vehicle. The sales price was to be approximately $1900.00.
Defendant Carmichael, in interviews on various radio and TV shows, said that the car body was to be made of a high-impact plastic and that she had driven the car at a speed of 35 to 50 miles per hour into a brick wall with no damage to the car or injury to herself. She claimed to have $30,000,000 available as capital for producing the car.
The first objective sign of activity by Twentieth Century was in August of 1974, when a 7,200 sq. ft. office space in Encino was leased for $5,000 per month.
In September of 1974, a 15,000 sq. ft. industrial building in Canoga Park was leased for $1,500 per month, and in December of 1974, two large hangars and other property at the Burbank Airport were leased for $13,700 per month. The building in Canoga Park was designated as a research and development laboratory and apparently the facilities at the airport were to be used to house an assembly line.
During August and September of 1974, various employment opportunity ads appeared in the Los Angeles Times and the Valley News and Green Sheet. Some of these ads indicated an investment of $1,500 to $2,000 would be required. A number of persons who responded to the ads were hired.
By June of 1975, the target date for the first five hundred production models, Twentieth Century had neither the tooling nor the equipment for assembly line production. Nor did it have sufficient capital to acquire the necessary machinery. More importantly, Twentieth Century did not have an operating model that would even approach the capabilities ascribed to the car and apparently had no employee or staff member capable of designing one.
During the end of 1974, and early in 1975, Twentieth Century opened corporate offices in Dallas, Texas. In February of 1975, the State of Texas placed Twentieth Century in the hands of a receiver. Defendant Carmichael departed the scene and was arrested several months later by federal agents in Florida.
In summary, during its rather brief history, Twentieth Century maintained well-appointed offices from which emanated a well-organized promotional campaign. Behind this facade, however, was an insolvent organization lacking the necessary equipment or expertise to match the claims made in the promotion. It was an organization which, in spite of these deficiencies and in the face of two Desist and Refrain Orders in September and December 1974 by the California Corporations Commissioner, continued to solicit and collect money from unsuspecting investors.
Twentieth Century did engage in a certain amount of uncoordinated frenetic activity in an attempt to construct a model which would at least have the appearance of the public perception which Twentieth Century had created of the “Dale” automobile. The result was two, or possibly three, “Jerry built” prototypes made from parts of other regularly manufactured cars. According to expert witnesses, none of these “prototypes” had any of the components or capabilities attributed to the “Dale” by Twentieth Century.
Defendant Carmichael, under the name of Jerry Michael had been convicted in 1961 of conspiracy and issuing checks without sufficient funds. In 1973, defendant Carmichael, along with Comstock and Schlisman, was employed at U.S. Marketing Institute, Inc., a marketing development company in Encino.
One Dale Clifft (not a defendant in any of these proceedings), an engineer with no formal training in automobile design, while working in a friend's home garage, assembled a three-wheeled vehicle he called a “commutercycle.” This vehicle was registered as a motorcycle and was basically a Honda with three wheels, two seats and some tubular framing covered by fabric similar to that used in convertible tops on automobiles. Clifft had never crash-tested the vehicle nor obtained a 50 mile per gallon performance.
A mutual acquaintance introduced Clifft to Carmichael in June of 1974. Shortly thereafter, Clifft entered into an agreement with Carmichael whereby Carmichael obtained the right to the “commutercycle” in exchange for a promise of royalties and a payment of $4,000. The total amount Clifft ever received was $1,001.00.
Carmichael discussed financing the manufacture and production of the Clifft vehicle with a stock broker and was advised of the need for complying with certain regulations in the obtaining of a permit to sell stock. Her response was that such procedure was too time-consuming and “the heck with regulations” and “to hell with permits.”
Defendant Comstock joined defendant Carmichael in the venture in June of 1974, and assisted in forming Twentieth Century. He became the vice president in charge of sales.
Defendant Farrell had no connection with any of the other defendants until he went to work for Twentieth Century in August of 1974. He was given various titles of “Expeditor,” “Director of Acquisitions,” and “General Manager.” At some point he became a vice president. In February of 1975, after the departure of Carmichael, he was elected acting president.
Defendant Schlisman was one of the original incorporators of Twentieth Century. He began work with the organization in September of 1974. He assumed the position of a vice president and was apparently assigned the role of establishing dealerships.
NATURE OF THE CONTENTIONS ON APPEAL
Defendant Carmichael, the primary figure in Twentieth Century, does not challenge the sufficiency of the evidence. Her contentions are essentially directed to procedural matters.
The remaining defendants, while urging certain procedural errors also contend that the evidence is insufficient to prove that they were guilty of wrongdoing. They argue that they were, in effect, “taken in” by defendant Carmichael and were unaware of any illegality in the operation of Twentieth Century.
1. The Penal Code Section 995 Motion to Set Aside The Indictment.
Defendant Carmichael moved the superior court to set aside the indictment under Penal Code section 995. She argued that she had been denied an opportunity to testify fully before the grand jury, that the deputy district attorney had mis-instructed the grand jury on the law of theft, and that she had been granted immunity. The motion was denied and she assigns that denial as one of her claims of error on appeal.
Defendant Carmichael was invited to testify before the grand jury and did so. Her testimony was essentially that she and her colleagues actually intended to produce the “Dale” automobile, establish the dealerships and sell the cars and that they did everything possible to try to meet the time schedule but were thwarted by the actions of the Corporations Commissioner and the authorities in Texas.
During her testimony she responded to questions posed by the deputy district attorney and also presented a narrative discourse on the operations of Twentieth Century. Her testimony was interrupted when she launched into a diatribe which included such matters as an alleged scandal involving Los Angeles Times Publisher, Otis Chandler, allegations that “General Motors is still effectively controlled by the DuPont family,” that “IT&T owns a controlling interest in ABC TV,” the “New York Stock Exchange controls the SEC,” that “Joseph Kennedy manipulated a stock exchange swindle in the 1930s,” and that “Merrill-Lynch is named in suits an average of once a year but nothing is ever done about it.”
Our examination of the record satisfies us that defendant had adequate opportunity to present her evidence to the grand jury. She was simply curtailed in her improper attempt to lecture the jury on irrelevant matters.
During the grand jury proceedings the deputy district attorney made some comments to the grand jury concerning the law of grand theft—more specifically, that form of theft described as obtaining property under false pretenses. The tenor of those comments was that the crime of obtaining property by false pretenses would be committed if, at the time of obtaining the investor's money, defendants made false representations, even though they may have intended ultimately to build the “Dale” car, and that in obtaining money to finance production of the car, the use of false pretenses to attract investors would be a crime, notwithstanding a good faith intention to produce the car.
The deputy district attorney's comments to the jury were correct statements of the law. In any event, incorrect statements of the law by the deputy district attorney would not be grounds for setting aside the indictment. The validity of an indictment in terms of the evidence and the applicable law is for the court to determine in a hearing on a motion under Penal Code section 995. (People v. Gordon, 47 Cal.App.3d 465, 120 Cal.Rptr. 840.) The motion to set aside the indictment was properly denied.
Prior to commencement of the grand jury proceedings the California Corporations Commissioner had issued two subpoenas duces tecum in September and December of 1974 for books, records and documents in the files of Twentieth Century. Corporate records were produced in response to those subpoenas by employees of Twentieth Century. None of the individuals who responded to the subpoenas asserted any privilege against self-incrimination.
Corporations Code section 25531 provides an immunity from prosecution to persons who, after validly asserting a privilege against self-incrimination, are required to produce records or testify before the Corporations Commissioner.
As noted, no one involved with Twentieth Century ever validly asserted the privilege. Beyond that, no individual may assert the privilege as a bar to disgorging corporate records. (Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678; Brovelli v. Superior Court, 56 Cal.2d 524, 15 Cal.Rptr. 630, 364 P.2d 462.) Defendant Carmichael was not granted immunity.
2. Defendant Carmichael's Representation.
Under the heading that she was denied her right to be represented by counsel at the trial, defendant Carmichael makes a number of assertions, all of which focus on the trial court's refusal, after jury selection had commenced, to accede to defendant's request that a private attorney, which defendant specifically named, be appointed to represent her at public expense.
Defendant's claim in this regard is a classic example of the all-too-often-used ploy of attempting to create a basis for appeal by bedeviling a conscientious trial judge with alternating demands to be afforded propria persona status and to be represented by counsel, without any real desire that either of the demands be granted.
Defendant Carmichael was arraigned on June 3, 1975 and entered a plea of not guilty. At that time she was represented by private counsel. Three weeks later, Carmichael and her counsel appeared and joined in a request that counsel be relieved and a public defender be appointed in his stead.
In conjunction with that request, the defendant personally stated that she would like to be appointed as “pro per co -counsel.” Ruling on that motion was deferred.
A deputy public defender made numerous pre-trial appearances on behalf of the defendant. This situation continued until February 20, 1976. On that date, defendant requested to be permitted to proceed in pro per. Hearing on that request was put over until February 25, 1976.
On that latter date, after patiently and meticulously discussing with defendant the ramifications and disadvantages of pro per status, the trial court found that defendant voluntarily and knowingly waived her right to be represented by counsel.
Faced with the possibility of a long and complex trial involving multiple defendants, whose interests might not all coincide with that of defendant Carmichael, the trial judge suggested to the public defender and to defendant Carmichael the possibility that the public defender be appointed as “standby” counsel prepared to re-enter the case in the event the defendant, for one reason or another, became incapable of continuing to represent herself. That suggestion was rejected by both the defendant and the public defender. The public defender also refused to act in an advisory capacity.
On April 5, 1976, after a number of hearings during which the trial court demonstrated extreme concern for defendant's rights and an intense desire to see that she was adequately represented, a private attorney was appointed at public expense to act as advisory counsel. This attorney had been selected by the defendant from a list of available attorneys which the court provided.
Jury selection began on June 1, 1976. On that date, defendant requested that her advisory counsel be elevated to the status of co-counsel. That request was denied. After eight days of jury selection, defendant moved to be relieved of her pro per status and to have her advisory counsel appointed to fully represent her.
Defendant made it clear that the motion was conditioned on the appointment of this specific attorney. She rejected appointment of the public defender under any circumstances. That motion was denied.
The trial continued with defendant acting as her own attorney with appointed advisory counsel. At the close of the evidence, the trial court did permit the appointed counsel to make the argument to the jury on defendant's behalf.
We observe that at no time was there any suggestion that the public defender had a conflict which prevented him from representing defendant. Defendant, although she had ample opportunity to do so, never called the court's attention to any deficiency in the representation which the public defender did provide. In short, the public defender was at all times ready, willing and able to assume the representation of the defendant as counsel of record. He, however, quite reasonably and properly eschewed any secondary role which would require him to subordinate his professional status to the caprice of the defendant.
Defendant's attitude was one of wanting to “run the show” or in the alternative, have the public pay for an attorney whom she selected, all the while refusing the services of a qualified attorney for which the public was already paying. In this posture, case law is against her. (In Re J. G. L., 43 Cal.App.3d 447, 117 Cal.Rptr. 799; People v. Hall, 87 Cal.App.3d 125, 150 Cal.Rptr. 628.)
In view of defendant's assertion of her right to represent herself and her voluntary and intelligent waiver of counsel, the trial court had no choice but to grant her initial request. (Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 262.)
When defendant ostensibly changed her mind and asked to be relieved of her pro per status, the trial court in granting such a motion would have been required to appoint the public defender. (Pen.Code, § 987.2.) We are not required to solve the dilemma that might have resulted had the public defender refused at that point to enter the case, because defendant rejected any suggestion of appointment of the public defender.
We do observe, however, that if the maneuver defendant attempted in this case were to be approved, any defendant could circumvent the appointment of the public defender by the simple device of first requesting to proceed in pro per, requesting appointed advisory counsel and then, when the trial reached the stage where it would become impractical for the public defender to re-enter the case, asking for relief from the pro per status to be followed by appointment of the advisory counsel as full representative of the defendant. Neither the Constitution of the United States, the Constitution of the State of California, nor decisions of the Supreme Court of California mandate such an assault on the public treasury.
Defendant's purported request to be relieved of her pro per status was, in reality, nothing more than an attempt to secure appointment of her own selected private counsel at public expense. (People v. Elliott, 70 Cal.App.3d 984, 139 Cal.Rptr. 205; People v. Cruz, 83 Cal.App.3d 308, 147 Cal.Rptr. 740, are inapposite.)
We conclude that the trial court scrupulously complied with the requirements of the law. Defendant was not deprived of any constitutional right to counsel.
3. Motion to Suppress.2
Defendant moved pretrial, pursuant to Penal Code section 1538.5, to suppress three categories of evidence, to wit, (1) bank and corporate records pertaining to Twentieth Century, (2) two “Dale automobiles” seized in Los Angeles, and (3) one “Dale automobile” recovered in Texas. The motion was denied. Defendant assigns the denial as error.
As is so often the case, defendant does not, with any degree of specificity, designate just what records were sought to be suppressed and their significance, if any, as evidence in the case. The motion was apparently addressed generally to records of corporate accounts kept in several banks and internal records of the corporation itself.
This documentary evidence was obtained by the Commissioner of Corporations through the use of subpoenas duces tecum authorized to be issued by him pursuant to Corporations Code section 25531. That section prescribes that in the case of non-compliance with such subpoenas, the superior court shall conduct a hearing to determine whether compliance should be ordered.
In the case at bench none of the bank records were introduced into evidence. Hence defendant was not harmed by the denial of suppression. As to the internal corporate records there was a refusal to comply with at least one of the subpoenas and after a hearing, at which Twentieth Century was represented by counsel, the superior court ordered compliance. Presumably the other subpoenas were voluntarily complied with.
The subpoenas duces tecum were legal processes which comported with the requirements of Burrows v. Superior Court, 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590, and Carlson v. Superior Court, 58 Cal.App.3d 13, 129 Cal.Rptr. 650, since they required a court order after an adversary hearing to enforce compliance. (Compare Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525.)
As to the two “Dale automobiles” seized in Los Angeles, neither was ever offered or admitted into evidence. They were, however, seized pursuant to a valid search warrant. Defendant's contention in this regard totally lacks merit.
The one “Dale automobile” used as evidence in the trial was delivered in Dallas, Texas, to the District Attorney of Los Angeles County by the duly appointed court receiver of Twentieth Century. Transfer of the vehicle occurred only after two adversary hearings in the Texas courts concerning the validity of the receivership and a restraining order against Twentieth Century. The transfer was ultimately effected pursuant to a specific court order therefor.
The procedure which was employed in Texas was legal and proper pursuant to Texas and federal law. (Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452; Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406.) It follows that the receipt and use of the evidence in California was proper.
It must be remembered that this item of evidence which defendant sought to suppress had previously been on public display at Twentieth Century headquarters and in auto shows in California. The use of it as evidence before the jury was not exactly the result of the ferreting out of a previously concealed item of property. The motion to suppress was properly denied.
4. The Claim of Jury Coercion.3
The trial of this case lasted over seven months. The jury deliberated for about eleven days and then reported that it was deadlocked on all counts. The court requested the jury to continue deliberation and gave an instruction on the desirability of reaching a verdict. For want of a better term, we will call the instruction a highly modified “Allen” type instruction.4 Defendant of course contends that this was error, citing People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997. There was no error.
Even though the instruction that was given does not appear to contain those portions of the “Allen” instruction that were condemned in Gainer, we need not dwell on the issue because the jury was reconstituted after the instruction was given.
As we will discuss, infra, after the giving of the challenged instruction, one of the jurors was excused for illness and was replaced by an alternate juror. The court then instructed this newly constituted jury, in accordance with the mandate of People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742, to set aside all past deliberations and begin anew to consider the evidence. After four more days of deliberation, the verdicts were returned. It must be presumed that the jury followed the “Collins” instruction.
5. The Excusing of One of the Jurors.
On January 19, the day following the giving of the challenged “Allen” instruction, the trial court excused a juror after being advised by sheriff's department personnel in charge of the jury that the juror had been removed from the hotel, where the jury was sequestered for the previous night, and admitted to a hospital.
A document was delivered to the court by a deputy sheriff describing the juror's condition and indicating that the juror would be hospitalized for a minimum of three days.
The trial court exhibited the document to defense counsel and described his communication with the sheriff's personnel during the preceding night and earlier that morning. A deputy sheriff was in court and stated that she had seen the juror at the hospital at 12:15 a. m. on January 19. The juror was at that time confined to a bed with an intravenous feeding apparatus attached to her arm.
The court announced its intention to excuse the juror as medically unable to continue to serve. No objections were interposed by any of the defendants.
Defendants later moved for a new trial on the ground that the juror had been improperly excused. They produced evidence that the excused juror had been holding out for an acquittal. They also produced some evidence in an effort to establish that the sheriff's personnel had misled the judge as to the juror's condition and had brought about the juror's admission to the hospital, by refusing to handle the juror on an outpatient basis.
The overwhelming evidence produced by both sides, which evidence included the testimony of doctors at the hospital, however, clearly established that the juror, an elderly woman, was in fact seriously ill and in need of hospital treatment.
A motion for a new trial is directed to the sound discretion of the trial court as is the question of the excusing of a juror from further service. (People v. Greenwood, 47 Cal.2d 819, 306 P.2d 427; In re Mendes, 23 Cal.3d 847, 153 Cal.Rptr. 831, 592 P.2d 318.)
Penal Code sections 1089 and 1123 permit the replacing of a juror with an alternate when a juror, because of illness, appears to the trial court to be unable to continue. The exercise of the court's discretion in making such a determination must be tested against the evidence which was before the court at the time, and which provided the basis for the court's action.
The correctness of the court's decision in discharging the jury in this case and denying a motion for a new trial on the grounds of that discharge, is unassailable since those decisions were based on uncontroverted evidence of the juror's illness and incapacity. We will not disturb the trial court's determination of either issue.
By discussing and disposing of defendants' contentions in regard to the excusing of the juror, we do not wish to be understood as holding that, even if true, they would have constituted a proper grounds for a new trial under Penal Code section 1181.
6. Defendant Carmichael's Prior Convictions.
Prior to trial, defendant admitted the two prior felony convictions alluded to earlier. The judgment contains a recital of those convictions as well as a third conviction which the Attorney General concedes was improperly included.
The Attorney General further concedes that under the principle of In re Yurko, 10 Cal.3d 857, 112 Cal.Rptr. 513, 519 P.2d 561, defendant's admission of two priors must be set aside because of the trial court's failure to advise defendant of the possible sentence enhancement that could result therefrom. We have concluded that to return the case to the trial court for a retrial on that limited issue would be an idle act. Because of the age of the prior convictions, enhancement of the sentence on that basis is not possible. (Pen. Code, § 667.5(d).) We therefore have concluded that all reference to the priors should be stricken from the judgment.
Defendant Carmichael's brief contains a number of additional claims of error which we have carefully considered. We have determined that they are so lacking in arguable merit that we need not further lengthen this opinion by including any discussion of them.
THE REMAINING DEFENDANTS
1. The Conspiracy Charge.
Central to the prosecution's case against all defendants was the theory that they were, by mutual agreement, working together to promote investments in Twentieth Century. The persons who invested money in one or the other of the three types of offerings presented by Twentieth Century, in so doing, usually dealt with two or more of the defendants in varying combinations.
The People produced no direct evidence that defendants formally entered into an agreement but relied on the inferences to be drawn from the evidence and especially on the fact that on differing occasions each of the defendants made identical or similar representations concerning the attributes of the “Dale” and the schedule for producing it.
From the common theme, which permeated the defendants' representations, and the overwhelming proof of the impossibility of the representations ever being realized, the jury obviously concluded that defendants had agreed together to pursue the investment promotion scheme knowing of the falsity of the representations being made.
A conspiracy exists when two or more persons undertake by agreement or common design to commit an unlawful act or a series of unlawful acts. In order to prove the existence of a conspiracy it is not necessary that the evidence show a formally articulated agreement, either oral or written. It is sufficient to prove that a mutual understanding or common design existed between the alleged co-conspirators and that fact, like any other, can be proved circumstantially. (People v. Aday, 226 Cal.App.2d 520, 533-534, 38 Cal.Rptr. 199; People v. Massey, 151 Cal.App.2d 623, 312 P.2d 365; People v. Fujita, 43 Cal.App.3d 454, 117 Cal.Rptr. 757.)
While it is true that in order to establish the existence of a criminal conspiracy it must be shown that the parties each individually harbored an intent to commit an unlawful act, that intent may be inferred from their knowledge of the illegality of the intended objective of the conspiracy, which knowledge may also be proved circumstantially. (People v. Donahue, 46 Cal.App.3d 832, 120 Cal.Rptr. 489; Bompensiero v. Superior Court, 44 Cal.2d 178, 281 P.2d 250; People v. Saugstad, 203 Cal.App.2d 536, 21 Cal.Rptr. 740.)
Defendants were charged with conspiracy to commit, inter alia, the crime of grand theft. More specifically, as the evidence discloses, they were charged with conspiring to commit that form of theft denominated as obtaining property by means of false pretenses.
A conspiracy may contemplate multiple objectives. In addition to grand theft, the conspiracy here was also alleged to have the objective of selling securities in violation of various sections of the Corporations Code.
If the evidence proves the existence of a conspiracy to commit at least one of several objectives, a conviction is proper even though the proof fails as to the other objectives. (People v. Garrison, 80 Cal.App.2d 458, 181 P.2d 738; People v. Scott, 224 Cal.App.2d 146, 36 Cal.Rptr. 402.)
Here the incorporation in Nevada of Twentieth Century is clear evidence that an agreement or common design existed among the several incorporators, which included Carmichael, Schlisman and Comstock. The evidence discloses that defendant Farrell later joined in that agreement and that over a period of time all defendants were, by agreement or common design, working together to further the interests of the organization.
From that point on the question becomes one of whether this agreement or common design was criminal in nature. Our role is to determine whether there is any substantial evidence from which the jury could infer that defendants, in furtherance of the agreement or common design, knowingly intended to commit illegal acts.
However sincere the defendants may have been in their desire or intent to attempt at some time to produce the “Dale” automobile, the undisputed fact is that at the time they represented to the various victims in the case the proven capabilities of the car and the certainty of the production schedule, these representations were in fact false and were made for the purpose of inducing the victims to part with their money.
The very best that can be said for the defendants, other than Carmichael, is that the representations were made recklessly without any reasonable basis for belief that those representations were true. That conduct was sufficient to establish the offense of obtaining property under false pretenses. (People v. Ashley, 42 Cal.2d 246, 267 P.2d 271; People v. Bowman, 24 Cal.App. 781, 142 P. 495; People v. Schmitt, 155 Cal.App.2d 87, at 109, 317 P.2d 673.)
Assuming arguendo that the defendants, other than Carmichael, as they contend, were unaware of the technical requirements of the Corporate Securities Law and were unaware that they were in fact selling securities in violation of the law, the judgment of conviction on the conspiracy charge would nevertheless be valid on the basis of the evidence that they conspired to obtain property by the use of false pretenses. Further, as a co-conspirator each defendant would be chargeable with the substantive crimes committed by the other co-conspirators in furtherance of the conspiracy. (People v. Kauffman, 152 Cal. 331, 92 P. 861; People v. Schader, 62 Cal.2d 716 44 Cal.Rptr. 193, 401 P.2d 665; 1 Witkin, Cal. Crimes, § 121, p. 114.) We will discuss the substantive securities violations, infra.
We now turn to the evidence as to the individual defendants.
(a) Defendant Schlisman
Viewing the evidence in the light most favorable to support of the judgment according to the usual rule governing appellate review (People v. Henderson, 19 Cal.3d 86, 137 Cal.Rptr. 1, 560 P.2d 1180; People v. Mosher, 1 Cal.3d 379, 82 Cal.Rptr. 379, 461 P.2d 659), the evidence as to defendant Schlisman discloses the following:
In October of 1974, Wayne Provisor went to Twentieth Century offices in Encino and talked to Schlisman. Schlisman told him that the “Dale” would get 50 to 90 miles to the gallon and would go about 85 miles per hour, that he (Schlisman) had personally driven the car into an abutment at twenty miles an hour with no damage to the car. Schlisman gave Provisor a copy of the brochure.
Schlisman further told Provisor that by the use of a “drag meter”, one of the “Dale” cars had been operated for an equivalent of 85,000 miles, and when the engine was thereafter dismantled it exhibited no signs of wear. Provisor paid $1,869 for an option to purchase the “Dale.”
The uncontroverted evidence is that Twentieth Century never acquired a “drag meter.” One of the employees had obtained an estimate of the cost of a “drag meter.” The estimate ranged from $750,000 to over a million dollars. Further, no car existed which could have been tested on the “drag meter.”
William McCullough, after seeing a TV newscast in mid-November of 1974, went to the Twentieth Century office in Encino and first talked to Jay Gardner.5 Gardner represented that tests had shown that the “Dale” achieved 70 miles per gallon of gasoline, and would stand impacts up to 30 miles per hour with little or no damage. McCullough received one of the brochures.
When McCullough indicated an interest in investing, Gardner brought defendant Schlisman into the conversation. Schlisman, thereafter, confirmed the various selling points of the car. He advised McCullough that Twentieth Century could not presently sell stock in California but that McCullough could invest by purchasing a demand note. The note would represent a loan to the corporation which could be redeemed in stock if and when the company “went public.” He said that the stock was selling at $3 a share in Nevada, that at the next board meeting the price would probably be raised to $5 and would undoubtedly be raised to $10 on “going public.”
For a $1,000 investment, Schlisman told McCullough that he could obtain an interest which represented 334 shares of stock. McCullough gave Schlisman a check for $1,002 and received a demand note redeemable in stock.
On November 16, 1974, a Ronald Ponce de Leon went to Twentieth Century in Encino and viewed the showing of a TV tape cassette. He also spoke to Jay Gardner who told him that the “Dale” would be produced by June of 1975, and would sell for under $2,000. He represented that it would weigh 1,000 pounds, be very stable and get 70 miles per gallon.
Ponce de Leon returned two days later and spoke to Schlisman. Schlisman gave Ponce de Leon several pamphlets concerning dealerships as well as one of the “Dale” brochures.
Schlisman told Ponce de Leon he could have a dealership in North Hollywood with a ten mile radius for $34,000. The mechanics of this arrangement were that Ponce de Leon would purchase 21 cars at $1,600 each and then when the “commissioner saw that everything was real” he would be given a dealership.
Schlisman also told Ponce de Leon the following:
(1) That 88,000 cars would be produced the first year;
(2) That the “Dale” body would be made of material seven times harder than steel;
(3) That a bullet had been fired at one of the cars from 1 1/212 feet and did not penetrate;6 and
(4) That a TV commercial had been prepared showing a tank running over a “Dale” and a Chevrolet. The Chevrolet was demolished but the “Dale” remained operable.
Based on these representations Ponce de Leon decided to buy two automobiles and gave Schlisman $400 in exchange for an option on two cars.
When Richard Cooper applied for employment with Twentieth Century in September of 1974, he was responding to an ad which appeared in the Valley News and Green Sheet. He first talked to defendant Schlisman who showed him a copy of the brochure.
Schlisman told him that 35 officers of the company could buy stock in the company, that the total stock would be 250,000 shares and that at that time approximately 180,000 shares had been sold. Schlisman then took Cooper into defendant Carmichael's office and Schlisman left the room. Thereafter Carmichael offered Cooper 5,000 shares before January 1 at one dollar with an option to purchase 5,000 after January 1 at $10 a share. Cooper invested $5,000. His main reason for going to work for Twentieth Century was because of the stock option.
Inasmuch as the foregoing evidence is clearly sufficient to establish that Schlisman was engaged in a conspiracy with Gardner, Carmichael and the others, evidence concerning the representations made to various other victims by other defendants was also admissible against him.
(b) Defendant Comstock
Comstock was one of the original incorporators of Twentieth Century. In August of 1974, Ronald Caley answered an ad in the Los Angeles Times regarding the formation of a security guard company. He went to the Encino office of Twentieth Century and talked to Comstock. Comstock immediately began discussing the “Dale” car which was to be in production in June of 1975. Comstock stated the stock was selling for one dollar a share but after January 1, it was expected to go to $10 a share. Caley talked to Carmichael and Comstock together and Comstock offered Caley stock at one dollar a share. Caley purchased a stock subscription certificate for $2,000. In October, Caley began working for Twentieth Century as a security guard.
Kim Marie Heier, a secretary, testified that she worked for Comstock who was a vice president. In the course of her employment she typed out car options, dealership agreements and employee contracts for Comstock. Another employee, Sarah Ann Freeman, testified that in October of 1974, Comstock asked her to work for stock rather than a salary for a couple months. This secretary testified to a conversation with Comstock in which they discussed the financial situation at Twentieth Century. Comstock stated that a favorable article in Dun & Bradstreet was occasioned by his bribing the Dun & Bradstreet reporter with a car.
The foregoing is only a portion of the evidence against Comstock but it is clearly sufficient to justify the jury's finding that he was part of the conspiracy and knew of the illegal nature of the venture.
(c) Defendant Farrell
The evidence shows that defendant Farrell was active in the operation of Twentieth Century. In the early stages he was instrumental in acquiring the leases on the real property as befitted his title of “director of acquisitions.” He later became a vice president.
In January of 1975, one George Gaines invested $10,000 in Twentieth Century on the basis of representations by defendant Farrell. Farrell told Gaines that a machine was being manufactured to produce the car's body and that as far as production was concerned they were “ready to go.” He told Gaines that testing showed that the car was impossible to tip over, had a mileage performance of 70 miles per gallon and would go around 60 miles per hour.
He told Gaines that for $10,000 he could buy 2,000 shares of stock and that the company would lease a 707 airplane to fly Gaines to Dallas to pick up the actual shares of stock. In exchange for a $10,000 check, Gaines was given a $10,000 demand note redeemable in stock. Farrell filled in the blank spaces and signed it as vice president.
In January, Charles Atkinson went to Twentieth Century headquarters and talked first to a man named White who was also a co-defendant and not a party to this appeal. He was then turned over to defendant Farrell. He told Farrell he had some money to invest. Farrell told him the company was sound and had three million dollars in reserve besides operating capital, that some autos were already being assembled in a suburb of Los Angeles. Farrell gave him a brochure and told him that the car would get around 70 miles to the gallon. Atkinson gave Farrell a check for $5,000 and received a demand note. Atkinson was assured that he would be getting stock rather than an interest return on his money.
In January of 1974, one Herbert Kiesel went to the Twentieth Century office to buy shares of stock. He spoke to defendant Farrell. Farrell told him that he was vice president and gave him a brochure. Kiesel gave Farrell a check for $500. Farrell gave Kiesel a demand note signed A. R. Farrell, vice president for Elizabeth Carmichael.
2. The Grand Theft Charges.
(a) Defendant Schlisman
Defendant Schlisman contends that there was no evidence of an intent by any of the defendants to permanently deprive the victims of their money or property. He contends that the failure of the trial court to instruct the jury that the crime of grand theft required such intent was error.
The crime of obtaining property be means of false pretenses, which is a form of theft in California, requires only an intent to defraud the victim into parting with the title to his property, even for a temporary period. (People v. Bowman, supra, 24 Cal.App. 781, 142 P. 495; 21 Cal.Jur.3d, Criminal Law, § 2592, pp. 422-425; 1 Witkin Cal.Crimes, Crimes Against Property, § 403, pp. 375-376.)
The court fully and correctly instructed the jury on the requirements of the crime of obtaining property by means of false pretenses. Evidence of defendant Schlisman's intent to defraud was overwhelming.
The representations which defendant Schlisman made on several occasions to different victims were demonstrably false. The statement by Schlisman that he had driven the car into an abutment, was undoubtedly known by him to be false, simply because it could not and did not happen. Concerning representations as to the capabilities of the automobile and the production schedule, it is hard to conceive of how Schlisman could not have known of their falsity. At the very least those representations were recklessly made without the availability of any information which could have reasonably justified a belief that they were true.
Another item of evidence offered against Schlisman was that, prior to trial, and after a court appearance by Schlisman, he approached an investigator from the Department of Motor Vehicles who was walking in the hall of the courthouse with the deputy district attorney. According to the investigator, Schlisman stated “we didn't steal any money.” “It was a kite.”
Defendant argues that that statement should have been suppressed as having been obtained in violation of the rule enunciated in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. The rule from Massiah is that a defendant who has been charged with a criminal offense and has retained counsel may not be interrogated in the absence of his counsel. Massiah is inapposite here. The evidence is clear that defendant Schlisman was not interrogated but simply volunteered the statement.
(b) Defendants Farrell and Comstock
The evidence recited above under the discussion of the conspiracy charge was also sufficient to support the substantive counts of grand theft. As we have previously stated, a co-conspirator is chargeable with crimes committed by his co-conspirator in furtherance of the conspiracy. (People v. Kauffman, supra, 152 Cal. 331, 92 P. 861; People v. Schader, supra, 62 Cal.2d 716, 44 Cal.Rptr. 193, 401 P.2d 665; 1 Witkin, Cal. Crimes, § 121, p. 114.)
3. The Corporate Security Violations
The California Corporations Code contains regulations governing the sale of securities within the State of California. Corporations Code section 25540 imposes criminal sanctions for violating those regulations. As pertains to this case the most significant requirement for selling or offering to sell securities to the public in California is that of qualifying the stock and obtaining a permit from the Corporations Commissioner. (Corp. Code, §§ 25110, 25113.)
Under Corporations Code section 25110, a permit is required before offering to sell securities in this state or accepting an offer to buy securities in this state regardless of where the securities may have been issued.
Corporations Code section 25019 defines security, inter alia, as any note, stock, investment contract or a right to subscribe to or purchase any of the foregoing. An investment contract has been defined as a security device by which the issuer raises funds for the conduct of a business venture or enterprise by offering to the public at random an opportunity to invest in the enterprise with an expectation of some tangible or intangible benefit and the money so solicited is used to operate the enterprise with only passive participation by the investor. (Dahlquist, Regulation and Civil Liability Under the California Securities Act, 33 Cal.L.Rev. 343, 360; Silver Hills Country Club v. Sobieski, 55 Cal.2d 811, 13 Cal.Rptr. 186, 361 P.2d 906.) The demand notes redeemable in stock and the stock options were securities. The public offering was at random, and in each instance a tangible benefit, to wit, a share in the profits was expected by the investor with only passive participation by him.
“Section 25008 defines a security broadly to protect the public against spurious schemes, however ingeniously devised, to attract risk capital. [[[[Citation.] To effectuate this purpose the courts look through form to substance.” (Silver Hills Country Club v. Sobieski, supra, at 814, 13 Cal.Rptr. at 187, 361 P.2d at 907.)
The jury was properly instructed on the definition of a “security” and the requisite elements of a violation of the relevant Corporations Code sections. There is substantial evidence to support the jury's finding of the facts.
Although Schlisman attacks the trial court's instructions on the intent required for violating the various sections of the Corporations Code, his primary argument in connection with the corporate securities violations, and in this contention he is joined by defendant Farrell, is that he was unaware of the fact that the activity he was engaged in involved the selling of securities which required prior qualification by the Corporations Commissioner.
In short, he and Farrell argue that the jury should have been instructed that a good faith belief, or reliance on the advice of their attorneys, that the activity was lawful should have been considered by the trial court as a possible defense and the jury so instructed.
Corporations Code section 25540 provides penal sanctions for “Any person who willfully violates any provision of this law, …”
The term “willfully” is specifically defined in Penal Code section 7, subdivision (1) as follows:
“The word ‘willfully,’ when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”
Here the trial court instructed the jury in accordance with the above and further that a person who sells a security without meeting the requirements of section 25110 of the Corporations Code has the burden to ascertain, at his peril, whether his acts violated the law and it is no defense that he failed to ascertain whether the security could be legally sold. Further, the court told the jury that a good faith belief or advice of counsel that a certain instrument or transaction does not constitute a security is not a defense to the charge of violating the Corporations Code. This was a correct statement of the law. (People v. Clem, 39 Cal.App.3d 539, 114 Cal.Rptr. 359.)
It is hornbook law that a mistake of law is no defense to a criminal charge, unless that mistake of law is made in reliance upon a statement from an authoritative source. (People v. Aresen, 91 Cal.App.2d 26, 204 P.2d 389; Perkins, Criminal Law, p. 813.) In the case of the Corporate Securities Act, the only authoritative source would be the Commissioner of Corporations or the Attorney General of the State. (People v. Ferguson, 134 Cal.App. 41, 24 P.2d 965; Perkins, Criminal Law, p. 813.)
If persons desiring to sell securities were permitted to do so merely because they had an opinion from a private attorney that such sale was proper, the regulatory scheme would be rendered meaningless and California would return to the era of selling “blue sky.”
Furthermore, in this case, although defendants claimed to have had advice of counsel, when the prosecution attempted to rebut that contention they claimed the attorney-client privilege. Thus they are estopped from asserting that claim on appeal.
THE SEVERANCE ISSUE
Defendants Comstock and Farrell argue that they were prejudiced by refusal to sever their case from that of defendant Carmichael. They claim that this prejudice took three forms: (1) protraction of the trial caused by Carmichael's insistence on representing herself; (2) receipt of a great volume of evidence as to Carmichael's culpability which redounded to their detriment, and (3) detraction from defendants' credibility because of Carmichael's bizarre appearance and conduct.7
Penal Code section 1098 requires that persons jointly charged with an offense be jointly tried. The trial court has discretion to order separate trials. A defendant, however, who would claim error in the trial court's refusal to sever his trial from that of a codefendant has the burden in establishing that that refusal was an abuse of discretion, by affirmatively presenting some legal grounds for a severance.
People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, relied on by defendants, dealt with the issue of the introduction of a confession by one defendant implicating a codefendant. Certain guidelines were laid down in that case which included severing the trials if the confession could not be effectively edited to delete references to the codefendant.
Defendants here would extend the Aranda ruling to the case in which any evidence admissible against only one of several codefendants is likely to be used by the jury to the prejudice of a codefendant. They rely on People v. Massie, 66 Cal.2d 899, 59 Cal.Rptr. 733, 428 P.2d 869. We do not read Aranda or Massie as having such a broad application. The confession of one defendant implicating another defendant remains the touchstone for mandatory severance of persons who otherwise should be tried jointly.
We are not here presented with the Aranda situation. There was no confession by any of the defendants, nor do we have the case of evidence admitted only as to one or the other of several defendants.
Following a prima facie showing of the existence of a conspiracy, the extrajudicial utterances of the various defendants made during the continuance of the conspiracy and in furtherance thereof were admissible against all of the co-conspirators. (Cf. People v. Gant, 252 Cal.App.2d 101, 60 Cal.Rptr. 154; People v. Brawley, 1 Cal.3d 277, 82 Cal.Rptr. 161, 461 P.2d 361.) The bulk of the evidence was admissible against all defendants even though unquestionably a large part of the evidence dealt with Carmichael's activities.
While we can sympathize with the plight of an individual whose codefendant opts for pro per status, we are not prepared to say that that fact alone constitutes grounds for severance. To do so would permit defendants to obtain separate trials by the simple device of having one initially elect to represent himself, a decision which of course is revocable.
Finally we are not persuaded that defendants were prejudiced by Carmichael's appearance and conduct. To be sure the picture they portray of her is a bizarre one indeed. Apparently, however, her appearance and conduct were no different than when the codefendants were working with her in the Twentieth Century promotion. In view of defendants' claim that they relied to a degree on her judgment and representations in their belief in the feasibility of producing the “Dale” and the legality of their conduct, it ill behooves them to now contend that her appearance and conduct were so ludicrous as to engender disbelief.
The judgment as to defendant Carmichael is modified to strike all reference to the prior convictions. As modified the judgment is affirmed. The remaining judgments are affirmed.
The face of the brochure states:
“THE NEW 70 MPG DALE. DOLLAR FOR DOLLAR, THE BEST CAR EVER BUILT!”
The inside of the brochure states as follows:
“TWENTIETH CENTURY MOTOR CAR CORP. INTRODUCES …
A MAXIMUM EFFICIENCY CAR.
THE INCREDIBLE 70 MPG DALE.
MOST EXCITING NEW CAR OF THIS CENTURY.
FOR LESS THAN $2,000.
The eyes of the world are on the amazing new Dale. A masterpiece in automotive design and engineering. A whole new standard of performance, economy, and safety available in no other car on the road today.
Dollar for dollar, it's the best car ever built, and we can prove it! Aerospace technology produced this remarkable automobile to sell for less than $2,000. But that's only the beginning. The Dale is engineered to get 70 miles per gallon. Service is simple and economical, too. Any mechanical part can be replaced, if necessary, in less than 30 minutes.
The Dale has all the punch and power you'll ever want or need. Top speed of 85 miles per hour with a 2-cylinder air cooled, 4-cycle engine. Cruises at 55 mph in velvet-smooth quiet, on air shocks. Rack and pinion steering—the type found on most race cars—give you a positive, secure feel of the road. Handles better than the best handling car you ever drove.
There are no wires in the Dale. No chance of electrical malfunctions. The car is operated electronically through a printed circuit dashboard. All accessories (radio, heater, air conditioner) are simply plugged in.
Safety? You can't drive a safer car. The body and frame are constructed of rocket structural resin … stronger than steel or aluminum, pound for pound. Will absorb over 4 times the impact of a Cadillac, without serious damage. And, passengers are protected by 4 inches of foam padding throughout the cockpit area.
The Dale is today's maximum efficiency car. No other car has or does so much for so little.
THE TRI—WHEEL IDEA. IT'S A JOY RIDE.
You have a surprise coming. The tri-wheel Dale is about to revolutionize the automobile industry. It's the way more automobiles will be designed, from this day forward.
Two wheels up front, one in the rear, produces an amazingly solid, stable, smooth ride. Easier, safer to handle than 4-wheel vehicles. Better traction on ice, snow, and wet surfaces. Won't spin out, even on sharpest curves.
The center of gravity always remains inside the triangular configuration of the 3 wheels. Which means it is impossible for the Dale to roll over, even on sudden 45 degree turns.
The Dale is a product of space age technology … years ahead in design, performance, and safety. And, all at a low price that makes this car a joy to own and drive.
THE FIRST SPACE AGE AUTOMOBILE
Unmistakably the car of the future . . built for today's driving needs. A startling, aerodynamic innovation in design, construction, and efficiency that has, at last, brought the automobile into the space age. The most exciting idea that ever happened to personal transportation.
DESIGNED AND BUILT LIKE IT'S READY TO BE DRIVEN TO THE MOON
Rides like a rocket, yet it's built like a tank. The framework in the Dale is of structural resin … ounce for ounce, the strongest material known. Sledgehammer force won't dent or shatter the body. It's super-solid. And minor scratches won't show because the surface pigment is the same color as the structural material underneath.
Bumpers are energy absorbing. Padding between the bumper and body is high density urothane foam which cushions the impact with greater resistance than any other bumper system on any other car.
The Dale gives you an extra margin of protection in its Rigidex windows. Rigidex has 70 times the impact resistance of safety glass. Only the force of a bullet could penetrate it.
The interior of the Dale is built like a crash helmet … fully reinforced with a leather like padding to safeguard the passengers.
This zippy, high-spirited car gives you more than efficient, economical performance … it defends you against the other cars on the road. That's why we call it the best car ever built, dollar for dollar.
THE DALE WARRANTY
With your purchase of a new 1975 Dale from a 20th Century Motor Car Corporation dealer, 20th Century Motor Car Corporation guarantees to you, except for tires (tire warranty furnished by tire manufacturers) it will pay for the repair or replacements of any part it supplies that is defective in material or workmanship.
This guarantee is good for 15 months from the date of delivery to new car purchaser or 15,000 miles, whichever comes first. All that will be required is that the car be properly maintained and cared for, according to the manufacturers operation manual in the continental limits of the United States or Canada, and that such repairs or replacements be made by a 20th Century Motor Car Corporation dealer.
In the event of a malfunction, call your nearest 20th Century Motor Car Corporation dealer and your car will be towed in to that dealer, free of charge for the period of this warranty.
EXTENDED WARRANTY—For a fee of $100 payable at the time of purchase, the terms of this warranty will be extended to 30,000 miles or 30 months, whichever comes first.
Independent suspension on all wheels. Bucket seats with head restraints. Seat belts with pushbutton buckles for all passenger positions. Two front combination seat and shoulder belts for driver and right front passenger (with reminder light and buzzer). Energy absorbing steering column. Passenger guard door locks. Safety door latches and hinges. Energy absorbing padded instrument panel. Contoured windshield header. Thick laminate popout windshield. Padded sun visors. Safety steering wheel. Side guard beams. Fuel tank impact (dual wall) security. Flow-thru ventilation system with booster fan. Dome lamp. Glove compartment. Disc brakes all wheels. 2-speed electric washer wiper. Computerized ignition system. Side marker lights and reflectors. Parking lamps that illuminate with headlamps. Four-way hazard warning flasher. Backup lights. Inside and outside rear-view mirrors. Lowglare instrument panel top, inside windshield moldings, wiper arm and blade and steering wheel. Safety wheel rims. Fire resistant body. Ash tray. Console box. Horn. Padded armrest. Leather-like fully padded passenger compartment, and an Automatic Transmission.
Type: Aircooled 2 cylinder Opposed
Displacement: 850 cc
Horsepower: 40 hp at 6600 rpm (SAE net)
Carburetor: Downdraft 1-Barrel”
1. The substantive violations of the Corporations Code were (1) offering and selling securities without a permit (Corp. Code, §§ 25110, 25540), (2) selling securities by means of false statements (Corp. Code, § 25401), and (3) employing a fraudulent scheme in the offering or selling of securities (Corp. Code, § 25541).
2. Only defendant Schlisman joins Carmichael in raising this issue.
3. All defendants raise this contention.
4. The instruction was as follows:“Ladies and gentlemen of the jury, in a large proportion of cases and perhaps strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions and not a mere acquiescence in the conclusion of his or her fellow, yet in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that you are selected in the same manner and from the same source from which any future jury must be selected, and there is no reason to suppose the case will ever be submitted to twelve men or women more intelligent, more impartial or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so.”
5. Jay Gardner was convicted along with the other defendants but is not a party to this appeal.
6. Apparently a test of this sort had been tried on one of the “mock ups” but the bullet went completely through the body.
7. Defendant Carmichael claims to be a transvestite who at one time assumed the role of a male but during the course of this trial dressed in a garish fashion and represented herself to be female.
COMPTON, Associate Justice.
FLEMING, Acting P. J., and BEACH, J., concur.