People v. Sica

Defendants were convicted of a conspiracy to violate section 337a of the Penal Code and each subdivision thereof. They have appealed from the judgment and from the order denying their motion for a new trial on the grounds of the insufficiency of the evidence and errors of law in certain rulings that occurred during the trial.

The evidence established that Chaiken and Weisbart were proprietors of a service station on North Main Street, in Los Angeles, where from time to time they were visited by defendants Joseph and Alfredo (Fred) Sica. Having suspected unlawful acts were being committed by the four men, the police installed a dictaphone in the station and established a listening post at a distance of about 300 feet. Between the post and the station was a chain link fence through which the officers looked directly into the station to observe all who came and departed. The officers knew Joe and Fred Sica and the sounds of their voices. Many of the telephonic conversations coming in were recorded while the officers listened to and made notes of all the conversations concerning which they testified. The incoming calls were received at periodic intervals from “Carmen” at which times bets on horse races which had been received by Joe and Fred Sica, Weisbart and

“Carmen,” who' participated in'the telephonic conversations with-those at the. service station, was-defendant Wil

Defendants’ first contention is that the evidence is insufficient to establish a conspiracy. The gist of a criminal conspiracy is a corrupt agreement of two or more persons

The contention of Joe Sica that the evidence relative to a conspiracy merely shows suspicion and association is in disregard of the record. The evidence is that the apartment on North Laurel Avenue had been rented to Fred Sica and Williams and that it was being used as a “phone spot.” The voice of Williams was identified as that of the person who called herself “Carmen.” Fred Sica was caught at 1 o’clock in the morning delivering top sheets and betting markers to Chaiken’s mailbox, to which he had a key. These top sheets contained the agent’s numbers “22” and “44” which had been assigned to Chaiken and Weisbart by Joe Sica who had made arrangements for the delivery of the sheets. Bets on horse races were taken at the gasoline station by Chaiken and Weisbart. They telephoned them to Williams, who used the name “Carmen” when she called. Both Joe and Fred

Joe Sica contends the evidence is insufficient to show him to be a coconspirator. The testimony, however, of the police officers justifies the inference that he was one of the principal operators of the bookmaking activities at the service station. In one conversation in which he was identified as a participant there was a discussion concerning a bet on a horse named “Peaches” which had been erroneously applied to another horse. To avoid mistakes of this nature, Joe instructed Chaiken and Weisbart to give the number of the race when they called the races in, stating he did not take quarter horses and they ought to know better than that. The conversation continued with a discussion over the settlement of accounts between himself and the other two men. Also, he had a later conversation with them regarding their taking expenses and his giving them credit. He not only gave them instructions as to the handling of bets, but told them how much expenses they were to get and under what circumstances they were to get commissions. Also he told them he was going “to service” two of their customers. He assigned certain other bettors to them. He indicated he tallied up the sheets at the end of the day, and made arrangements for the delivery of them to Chaiken’s house at night. He took calls from “Carmen” while at the station, and on one occasion he telephone in a bet giving instructions to scratch it if it was too late. He assigned numbers “22” and “44” to Chaiken and Weisbart. It is significant these numbers appeared on the top sheets in the possession of Williams at her apartment, and were on the top sheets delivered by Fred to Chaiken’s house. These conversations and circumstances not only support an inference that Joe was a part of the conspiracy but justify the further inference that he was directing its operations.

Joe Sica further argues that the court erred in admitting in evidence against him (1) the documents, together with the notations thereon, recovered by the officer from the Williams apartment; (2) testimony concerning the acts and statements of his brother Fred upon his arrest; and (3) the recordings of the conversations of the other defendants at the gas station. He bases this contention on the general rule that before evidence of the acts and declarations of an alleged conspirator is admissible against another defendant the fact of the conspiracy must be proved. (Code Civ. Proc., § 1870, subd. 6; People v. Steccone, supra, p. 238.) This principle was not violated. As pointed out in the Steccone ease, the issue of conspiracy need be proved only to the extent of establishing prima facie evidence of such fact. It need not be established beyond a reasonable doubt before such evidence

The admissibility of the recorded conversations of the other defendants falls within a recognized exception to the general rule since the facts from which the conspiracy is to be inferred are so enmeshed with other facts going to constitute the crime and so interwoven with conversations of this defendant that it is difficult to separate them. While it is the general rule that proof of the existence of the conspiracy ordinarily should precede proof of the acts or declarations of a coconspirator made pending the conspiracy and in aid and furtherance of the common design, that rule is not unyielding. Sometimes, for the' sake of convenience, evidence of the acts and declarations of an alleged conspirator is admitted before sufficient proof of the conspiracy is given. (People v. Matthew, 68 Cal.App. 95 , 107 [ 228 P. 417 ]; People v. Griffin, 98 Cal.App.2d 1 , 48 [ 219 P.2d 519 ]; People v. Ferlin, 203 Cal. 587 , 599 [ 265 P. 230 ].) Furthermore, any evidence received by virtue of this practical exception is necessarily received conditionally, for in the final analysis the jury must first pass judgment on the question as to whether the asserted conspiracy has been proved. (People v. Steccone, supra, p. 238; People v. Griffin, supra, p. 53.) Also, the order in which the evidence in a trial is admitted is a matter within the sound discretion of the trial court. (People v. Ferlin, supra, p. 599; People v. Griffin, supra, p. 53.) There was no abuse of such discretion.

Defendant Joe Sica urges that the court erred in admitting the testimony of the police officers with respect to the conversations in the gasoline station and over the telephone on the grounds that the admission of this evidence violated the

Joseph Sica makes the further contention that the testimony concerning the “intercepted” telephone messages were improperly admitted because they were secured in violation of the Federal Communications Act (48 Stats, at L. 1064, 1103, 47 U.S.C. 605), which contains provisions making it an offense for any person to intercept and divulge to another, without the consent of the sender, the contents or substance of any wire communication. There is no merit in this argument. In a state court, the contents of telephone messages intercepted without the consent of the sender are admissible notwithstanding such interception was in violation of the Federal Communications Act. (People v. Channell

All defendants attack the admission of testimony given by the police, officers on these additional grounds: (1) the court erred in permitting the officers to testify as to their opinions of the identity of the speakers whose voices they were listening to at various stages of the recorded conversations after the jury had already heard the original recordings; (2) the use by the officers of memoranda to refresh their recollections of conversations was improper, since the memoranda were not prepared by the officers themselves or under their immediate direction, but were notes independently transcribed -by a police stenographer and collectively corrected and revised by the testifying officers; and (3) the best evidence and hearsay rules were violated by the evidence thus introduced. From the preceding observations it is clear that on the issue of identification of the participants in the conversations, testimony of a witness who recognizes a voice and uses this identification to name the speaker is properly admissible (People v. Lorraine, 28 Cal.App.2d 50 , 54 [ 81 P.2d 1004 ];

Defendants’ contention that the memoranda used to refresh the recollection of the officers was improperly prepared cannot be sustained. The requirements of section 2047 of the Code of Civil Procedure were fully satisfied by the nature of the writing used to refresh the officers’ recollection. The transcriptions made by the stenographer under the direction of the police officers came from recordings of conversations which had been concurrently overheard by the officers. These transcriptions were corrected by the officers to correspond with what each had actually heard soon enough after the conversations to make the memoranda accord with their recollections while the events were still fresh in their memories. That a witness may refresh his memory with a memorandum so prepared is abundantly supported. (People v. Deckert, 77 Cal.App. 146 , 151 [ 246 P. 157 ]; People v. Amaya, 44 Cal.App.2d 656 , 658 [ 112 P.2d 942 ]; People v. Zammora, 66 Cal.App.2d 166 [ 152 P.2d 180 ].) The record shows that the officers simply used the memoranda to refresh their memories as to information directly obtained by them.

There is no merit in defendants’ attempt to characterize the officers’ testimony as an expert opinion or as an interpretation of evidence already before the jury on which the latter were competent to form their own conclusions. No error may be predicated on the use by the officers of the memoranda to refresh their recollection of the things they had heard and whom they remembered to have said them. ■

In the light of this discussion, it must appear obvious .that defendants’ contention that the admission of the police "officers’ testimony was a violation of the best evidence rule "is based upon a misconception of that rule. Under the facts herein the rules that “a written instrument is itself the best possible evidence of its . . . contents” (Code Civ. Proc., § 1829) and that an “original writing must be produced and proved” are inapplicable. The issue before the court did not relate to the contents of a document or even to what ; context the recordings contained, but rather to the substance ■ of conversations concerning unlawful transactions which were

Defendants other than Joe Sica raise the further objection that sufficient foundation was not laid for the admission of the testimony of the police officers as to the conversations in the gas station. The officers established that a dicta-phone was placed in the station near the business telephone and that they set up a Pentagon recording machine in their listening post, that they could hear the conversations held in the station and identify some of the speakers by their voices with which they had already become familiar. They identified the. voices of other defendants by conversations held with them after their arrest. “There are other ways of identifying voices than by seeing the speaker.” (People v. Pustau, 39 Cal.App.2d 407 , 414 [ 103 P.2d 224 ].) Such identification may be made ás a result of conversation with the defendant after his arrest as well as before. (People v. Kulwin, supra, p. 110.) The officers were also aided in their identification by the names used in the conversations, and by observation of the physical presence of the parties whom they had seen many times at the station and listened to over a period of time. The foundation for the admission of the .officers’ testimony was sufficiently established. (People v. Schultz, 18 Cal.App.2d 485 , 488 [ 64 P.2d 440 ]; People v. Pustau, supra, p. 414; People v. Collins, 80 Cal.App.2d 526 , 535-536 [ 182 P.2d 585 ]; People v. Kulwin, supra, p. 110.)

That the conversations recorded by the officers were those of the defendants is virtually demonstrated. Joe Sica identified his own voice on the recordings and also identified the voice of his brother Fred and those of Chaiken and Weisbart. The failure of these defendants to deny their participation in any of the recorded conversations justified the jury in drawing an inference unfavorable to them on this issue. (California Constitution, art. I, § 13; People v. Adamson, 27 Cal.2d 478 , 490-491 [ 165 P.2d 3 ].)

Since no judgment was pronounced against defendants Fred Sica, Williams, Chaiken and Weisbart, each of tbeir purported appeals from the judgment is dismissed.

Moore, P. J., and McComb, J., concurred.

A petition for a rehearing was denied August 21, 1952, and appellants’ petitions for a hearing by the Supreme Court were denied September 4, 1952.