PEOPLE v. PIC (1981)

In an indictment, defendants Dean Richard Pic'l and Randall James Martin were accused of committing the following felony offenses: in count I, the offense of conspiracy, in violation of Penal Code section 182; in count II, the offense of extortion, in violation of Penal Code section 520; in count III, the offense of bribing a witness not to attend trial, in violation of Penal Code section 1361/2; in count IV, the offense of attempting to induce a witness to withhold true testimony, in violation of Penal Code section 137; in count V, the offense of compounding a felony, in violation of Penal Code section 153; and in count VI, the offense of receiving and concealing stolen property, in violation of Penal Code section 496. In count VII, defendant Martin only was accused of the offense of receiving and concealing stolen property, separate and apart from the offense charged in count VI, in violation of Penal Code section 496.

Both defendants made motions to set aside the indictment (Pen. Code, s 995). Defendant Pic'l's motion was heard first and was granted on December 19, 1978, as to counts III, IV, and V, but denied as to counts I, II, and VI.^[FN1] The People have appealed from the order of December 19, 1978, made pursuant to defendant Pic'l's motion, setting aside counts III, IV, and V of the indictment. (Pen. Code, s 1238.)^[FN2]

I

A Summary of the Facts

We summarize first the evidence presented in the grand jury proceedings.

In the early morning hours of July 30, 1978, there was stolen in Tustin a racing car, truck, trailer, related items, and a gun all belonging to Douglas Kerhulas. On August 3, 1978, defendant Martin attempted to sell part of the stolen property, a special rear end or differential, to Mr. Lukens at Blair's Speed Shop in Pasadena for $150. Since this differential was worth more than $1,000, Mr. Lukens became suspicious and telephoned the police. Kerhulas, the owner of the stolen property, was also notified.

Police officers and Kerhulas came to the shop. Kerhulas identified the differential as part of his stolen property. Kerhulas was given the name of the person who had possession of his property. Thereafter Kerhulas had a telephone conversation with defendant Martin in which Martin agreed that he would seek to have the stolen property returned to Kerhulas upon payment by Kerhulas of $3,000.

On August 6, 1978, a man who did not identify himself telephoned Kerhulas and said that he and Martin were among a group that stole the property, and he confirmed the arrangement whereby the property would be returned to Kerhulas for $3,000 but also upon condition that Kerhulas would sign a nonprosecution agreement. On August 7, 1978, the same man again telephoned Kerhulas and said that Kerhulas would subsequently get detailed instructions for getting his property back.

After these telephone calls, Kerhulas contacted the police and they attached a recording device to Kerhulas' telephone. Thereafter, defendant Pic'l telephoned Kerhulas and said that Kerhulas would have to pay $2,500 and sign a nonprosecution agreement in order to get his property back. Subsequently, Pic'l and Kerhulas met at a restaurant. This meeting was under surveillance by police officers who were in voice contact with Kerhulas through a radio transmitter affixed to Kerhulas' leg. At this restaurant meeting, Kerhulas paid $2,500 in cash to defendant Pic'l and signed and gave to Pic'l also a nonprosecution agreement which had been prepared by Pic'l.

Defendant Pic'l and Kerhulas left the restaurant in separate cars and went to one Steiner's house where Pic'l had arranged for the stolen property to be stored and where Kerhulas would be able to retrieve it. The officers who had followed Pic'l and Kerhulas to the Steiner premises arrested Pic'l as he drove from the Steiner premises. They removed from Pic'l's pockets $2,500 in $100 bills and the nonprosecution agreement. The officers also found in Pic'l's car the loaded gun which had been stolen from Kerhulas.

It is of significance that in a conversation with the officers, Pic'l stated that he would not have returned the property to Kerhulas if Kerhulas had not paid the $2,500.

The nonprosecution agreement signed by Kerhulas provided as follows: “I, DOUG KERHULAS, owner of a certain 1977 Chevrolet pickup, bearing California License Number 1E43451, and a special contruction (sic) trailer bearing California license number UB7406, as well as a top fuel dragster and miscellaneous parts, all of which were recently taken from my possession, for the purpose of reobtaining their possession, do hereby agree as follows: (P) A. I accept from Dean R. Pic'l, Attorney-at-Law, that portion of the aforesaid property that he was able to recover. (P) B. I hereby release the said Dean R. Pic'l from any and all liabilities which may arise by virtue of his participation in this matter and acknowledge that he has acted solely as an intermediatary (sic) for the purpose of resolving this matter. (P) C. I agree to seek the dismissal of all criminal charges which may have been filed relative to this matter and to do everything within my power to prevent the filing of any additional charges against any person. I hereby acknowledge full restitution and request the dismissal of all criminal charges pursuant to Penal Code Sections 1377 and 1378. As consideration for the restoration to me of my property, I shall refuse to prosecute criminal charges against anyone, or, in the alternative, shall be fully responsible for damages.”

II

The Trial Court Properly Set Aside Counts III, IV and V of the IndictmentA. The Trial Court's Analysis

In granting the motion to set aside counts III, IV, and V of the indictment and denying the motion to set aside counts I, II, VI and VII, the trial court concluded that, as to court III the bribing of a witness not to attend trial the nonprosecution agreement could reasonably be interpreted only as an agreement by the victim not to seek criminal charges against anyone; that there was nothing in the agreement or in the evidence before the grand jury that could lead to an inference that the victim was agreeing not to attend the trial or hearing of any action. The trial judge also stated that there could be no offense under the evidence as to count III because the victim was only a “feigned cooperator in signing the agreement.”

The court voiced similar reasons for setting aside count IV the attempt to induce the withholding of testimony except that the comment that the offense could not have been committed by reason of the victim being a “feigned cooperator” did not apply.

As to count V the compounding of a felony the trial court remarked that the commission of that offense was impossible because the victim was working with the police and never intended to carry out anything he promised in the agreement.

As we shall articulate below, we agree with the trial court that the evidence before the grand jury required the setting aside of counts III, IV and V of the indictment and permitting the action to go to trial on the remaining counts only.

B. Count III The Offense of Bribing a Witness or a Prospective Witness not To Attend Trial

In count III of the indictment, the defendants were charged with a violation of Penal Code section 1361/2. This section provides: “Every person who gives or offers or promises to give to any witness or person about to be called as a witness, any bribe upon any understanding or agreement that such person shall not attend upon any trial or other judicial proceeding, or every person who attempts by means of any offer of a bribe to dissuade any such person from attending upon any trial or other judicial proceeding, is guilty of a felony.”

The case of Lichens v. Superior Court (1960) 181 Cal.App.2d 573, 5 Cal.Rptr. 539, involved a prosecution under Penal Code section 1361/2. In Lichens, the evidence at best established that “the only purpose of the bribe was to induce (the victim) to ‘drop the case’ (an act which would have required the consent of the district attorney at that time), not that (the victim) would not attend upon the trial and hearing of said action.” (Id. at p. 576, 5 Cal.Rptr. 539.) The Lichens court held that such evidence failed to show the essential elements of Penal Code section 1361/2. Thus, as a matter of law, there was no reasonable or probable cause for returning the indictment.

Similarly, in the case before us, as the trial court noted, Kerhulas, the victim, merely agreed “to seek the dismissal of all criminal charges which may have been filed relative to this matter and to do everything within my power to prevent the filing of any additional charges against any person.” The nonprosecution agreement also provided that the victim “shall refuse to prosecute criminal charges against anyone.” Kerhulas did not undertake any agreement that he would “not attend upon any trial or other judicial proceeding.” (Pen. Code, s 1361/2.) Moreover, the evidence clearly showed that, by reason of Kerhulas' contact and cooperation with the police, he was merely feigning cooperation with defendant Pic'l in signing the agreement, and did not enter into any real “understanding or agreement” to carry out its terms.

In claiming error by the trial court in setting aside count III, the People rely upon People v. Broce (1977) 76 Cal.App.3d 71, 142 Cal.Rptr. 628, and People v. Thomas (1978) 83 Cal.App.3d 511, 148 Cal.Rptr. 52. We find nothing in Broce or Thomas which weakens the rationale of Lichens. Accordingly, we find no error in the trial court's order setting aside count III of the indictment.

C. Court IV The Offense of Attempting To Induce the Withholding of True Testimony

In count IV of the indictment, it was charged that defendants violated section 137 of the Penal Code. Section 137 provides: “(a) Every person who gives or offers, or promises to give, to any witness, or person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced is guilty of a felony. (P) (b) Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false testimony or withhold true testimony is guilty of a felony, punishable by imprisonment in the state prison for two, three, or four years. (P) As used in this subdivision, ‘threat of force’ means a credible threat of unlawful injury to any person or damage to the property of another which is communicated to a person for the purpose of inducing him to give false testimony or withhold true testimony. (P) (c) Every person who knowingly induces another person to give false testimony or withhold true testimony not privileged by law is guilty of a misdemeanor. (P) (d) At the arraignment, on a showing of cause to believe this section may be violated, the court, on motion of a party, shall admonish the person who there is cause to believe may violate this section and shall announce the penalties and other provisions of this section.”

The essence of the proscription found in Penal Code section 137 is the use of a bribe or other means to obtain an agreement by a witness or prospective witness to withhold the giving of true testimony. In the case before us, as the trial court correctly noted, the grand jury evidence in support of count IV was as fatally flawed as was the evidence to support count III. Thus, the defendants did not seek an understanding or agreement that the victim, Kerhulas, would withhold true testimony or would give false testimony at any trial or judicial proceeding. The nonprosecution agreement sought by Pic'l and signed by Kerhulas was designed for Kerhulas to seek dismissal of pending charges and try to preclude the filing of additional charges. There was no hint of the giving of testimony true or false within the four corners of the nonprosecution agreement. The trial court was correct, therefore, in granting defendant Pic'l's motion to set aside count IV of the indictment.

D. Count V The Offense of Compounding a Felony

In count V of the indictment, defendants were charged with violating Penal Code section 153. Penal Code section 153 provides: “Every person who, having knowledge of the actual commission of a crime, takes money or property of another, or any gratuity or reward, or any engagement, or promise thereof, upon any agreement or understanding to compound or conceal such crime, or to abstain from any prosecution thereof, or to withhold any evidence thereof, except in the cases provided for by law, in which crimes may be compromised by leave of court, is punishable as follows: (P) 1. By imprisonment in the state prison, or in a county jail not exceeding one year, where the crime was punishable by death or imprisonment in the state prison for life; (P) 2. By imprisonment in the state prison, or in the county jail not exceeding six months, where the crime was punishable by imprisonment in the state prison for any other term than for life; (P) 3. By imprisonment in the county jail not exceeding six months, or by fine not exceeding five hundred dollars ($500), where the crime was a misdemeanor.”

The gist of the offense of compounding a crime is that of a defendant's accepting something of value in return for a promise to conceal or to abstain from prosecution of the perpetrator of the crime involved. The offender under Penal Code section 153 is more generally the victim of a crime than anyone else.

But in the case at bench, it is the victim who is paying out money to another rather than receiving property of another in return for a promise to conceal or abstain from prosecuting the guilty party. The evidence before the grand jury does not establish that defendant Pic'l was making any agreement or promise to conceal the theft of Kerhulas' property or to abstain from prosecution of the perpetrators.

As the trial court pointed out, the only possible viable theory of reaching defendant Pic'l is one of considering him as an aider or abettor of the victim Kerhulas who signed the nonprosecution agreement. But the validity of this theory flounders in quicksand the quicksand being the nonreality of any agreement by Kerhulas to conceal the theft of his property or to abstain from prosecuting the perpetrators. Kerhulas' acts of notifying the police and seeking their assistance in catching the perpetrators constitute the very antithesis of any real promise or commitment to conceal or abstain from prosecuting the perpetrators of the theft of his property. There is thus no principal whom defendant Pic'l was aiding and abetting. The trial court, therefore, committed no error in setting aside count V of the indictment.

The order appealed from is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Subsequently, the trial court made the same ruling with respect to defendant Martin's motion to dismiss the indictment except that the separate count VII charged against defendant Martin was also permitted to remain a part of the indictment. The case proceeded to trial by jury on counts I, II, VI, and VII. Both defendants were found guilty on counts I, II, and VI and defendant Martin was found guilty also on count VII. Both defendants have appealed from the judgments of conviction. Their appeal is pending in this court in the case entitled People v. Pic'l and Martin, 114 Cal.App.3d 824, 171 Cal.Rptr. 106, and is decided concurrently herewith.

2.  Penal Code section 1238 permits an appeal by the People from an order dismissing some of the counts of an indictment or information and not others. (People v. Fraijo (1977) 78 Cal.App.3d 977, 980-981, 144 Cal.Rptr. 424.) The People have not appealed from the similar order of dismissal made on defendant Martin's motion.

JEFFERSON,[FN*] Associate Justice. FN* Retired Presiding Justice of the Court of Appeal, sitting under assignment by the Chairperson of the Judicial Council.

L. THAXTON HANSON, Acting P. J., and TITLE, J.,[FN**] concur.