People v. Bompensiero

In an amended indictment, appellant Frank Bompensiero, together with Charles Lyon and Louis Trapani and certain John Does and certain unindicted coconspirators, to wit, Charles Berry, Harry W. Steetle and Al Y. Bennett, were charged in count one with the crime of conspiracy to commit the crime of asking or receiving bribes by a public officer, to wit, Charles Berry, executive officer of the State of California (District Liquor Control Officer of the State Board of Equalization). Eight overt acts alleged to have taken place in San Diego County in furtherance of the conspiracy were set forth, i.e., (1) That defendant Lyon called one Patterson on the telephone on January 20, 1953; (2) that Lyon instructed Patterson to make an application for an on-sale general liquor license about November 16, 1952; (3) that on January 20, 1953, Lyon instructed Patterson to bring him $7,000; (4) that defendant Trapani, about August 23, 1952, instructed two Ghio brothers to collect $7,500; (5) that about October 10, 1952, defendant Trapani instructed them to apply for an on-sale general liquor license; (6) that appellant Bompensiero, about February 27, 1951, instructed one Gillenberg to apply for a seasonal liquor license; (7) that about October 25, 1952, Bennett instructed one Gillenberg to obtain $2,500; and (8) that about December 15, 1952, defendant Trapani instructed one Schoenbeck to gather together $7,000. Counts two through nine charged certain defendants with the crimes of attempted grand theft, grand theft, and asking, receiving and agreeing to receive bribes, but appellant Bompensiero was not named as a defendant in these counts of the amended indictment. In count ten, appellant Bompensiero, defendants Berry and Bennett and certain John Does, were charged with violating section 68 of the Penal Code (asking and receiving bribes by public officers or employees) and it was alleged that on or about the 3d day of April, 1951, the named defendants did ask, receive and agree to receive a bribe from Ernest Gillenberg in the sum of $5,000. Count eleven likewise charged violation of Penal Code section 68, naming appellant Bompensiero, Berry, Bennett and certain John Does, alleging that on October 25, 1952, they did ask, receive and agree to

Bompensiero moved to set aside the indictment and the trial as to him was continued due to the pendency of a proceeding in prohibition. (See Bompensiero v. Superior Court, 44 Cal.2d 178 [ 281 P.2d 250 ].) Trial was then had as to defendants Lyon, Berry, Bennett and Tapani which resulted in verdicts of guilty as to said named defendants and their convictions were affirmed on appeal by this court in People v. Lyon, 135 Cal.App.2d 558 [ 288 P.2d 57 ], except as to Berry whose appeal was dismissed. On April 18, 1955, following the making and denial of certain motions and the filing of an amended indictment in which counts ten and eleven were amended by adding the word “receive,” the matter proceeded to trial before a jury as to defendant Bompensiero. Verdicts were returned by the jury finding him guilty as charged in counts one, ten and eleven of the amended indictment. His motion for new trial was denied. Judgment was pronounced and he was sentenced to imprisonment in the state prison. He appeals from the judgment and the order denying his motion for a new trial.

The first of appellant’s numerous contentions on appeal is that the court erred in striking from the record appellant’s verified statement alleging bias and prejudice on the part of the trial judge. This contention is without merit. The record shows that on or about September 17, 1954, appellant filed in the instant action a statement that the trial judge was biased and prejudiced against him. This statement was stricken by the trial court and on appeal, the Supreme Court in Bompensiero v. Superior Court, 44 Cal.2d 183 , supra, held that the trial judge was not in error in striking the statement on the ground that the remarks attributed to the trial court showed so little basis for claiming personal bias or prejudice against Bompensiero as to justify the conclusion that the charge of disqualification was sham and frivolous and on the further ground that Bompensiero’s statement was not verified and was therefore formally defective. On April 18, 1955, appellant filed another document

In Ephraim v. Superior Court, 42 Cal.App.2d 578 [ 109 P.2d 378 ], it was held that statements of disqualification of a judge are insufficient as a matter of law unless the facts constituting the alleged disqualification are set forth, and that mere allegations setting forth the conclusions of affiant do not comply with section 170 of the Code of Civil Procedure. In People v. Lyon, supra, 135 Cal.App.2d 558 , 584-585, the appellant contended, as here, that the trial court failed to comply with section 170 of the Code of Civil Procedure with respect to his own claimed disqualification and this court there held that the refusal of the trial judge to submit the claim of disqualification asserted by Lyon, a codefendant of appellant Bompensiero herein, for consideration was proper.

Bompensiero, in points two, three, four and five of his opening brief, claims that the trial judge had no jurisdiction to pass upon the preliminary motions and demurrer, to sit as a trial judge, to hear and pass on appellant’s motion for a new trial, and to pronounce judgment. These four contentions are based upon the premise that the trial court erred in striking from the record the “Statement of personal bias and prejudice of judge” and since we have concluded that the statement was properly stricken, it follows that the court had jurisdiction to pass upon the matters stated in said points two, three, four and five.

Appellant contends that the evidence was insufficient to support the verdicts and the judgment. The consideration of this contention involves a somewhat lengthy statement of the testimony produced by the prosecution.

Charles J. Cameron testified as follows: He was employed by the Board of Equalization in San Diego from September 1, 1947 until the time of trial and after July 1, 1948. his superior officer was Charles E. Berry. Prior to the fall of

Al Tossas testified that one William Cook instructed him to come to San Diego for the purpose of selling seasonal licenses and to collect campaign funds for the William G. Bonelli campaign. He was asked to check several locations for the possibility of the issuance of seasonal licenses and was told to quote the price in one or two cases. He was told that this money was to apply to the campaign fund or to pay accumulated bills. Mr. Cook told him to use as a part of his sales talk the statement that after a period of time it would be possible to convert a seasonal into a general license. He picked up money on seasonal licenses in Orange and San Bernardino Counties and carried sealed envelopes from Charles Berry, the district liquor control administrator of San Diego and Imperial Counties to William Cook and vice versa. He stated also that he had received $500 from Frank

Ira M. Provart testified that he was formerly employed by the Board of Equalization as liquor control officer in El Centro and as such was acquainted with Charles Berry, who was the administrator in the San Diego and Imperial County area. He was asked by Ernest Gillenberg, who operated the Barbara Worth Café in Jacumba, if it would be possible that he could get a seasonal license. He, Provart, brought this to Mr. Berry’s attention and Berry told him to tell Gillenberg that he could but it would cost him $5,000. Gillenberg said he could afford only $3,500, which statement he relayed to Mr. Berry. Berry asked him if he thought Frank Bompensiero could talk to him and when and Provart said “I suppose so,” and Berry said to tell Mr. Gillenberg that Frank would come and see him. “He asked me to stop and see Mr. Gillenberg so I stopped in Mr. Gillenberg’s place in Jacumba and told him a man by the name of Frank B. would come to see him. He asked me his name and I said “I don’t think you will remember his full name, but he will make himself known to you when he comes in”; that Gillenberg came to the El Centro office and made an application for an on-sale seasonal license, saying that Frank told him to make an application; that Frank Bompensiero told him he had met Gillenberg in the Grant Hotel and had received a check from him; that Frank Bompensiero told him he was to have delivered to him a sum of money, alone, but instead he came with his wife and that he had some trouble dodging around the pillars, trying to keep away from her; that Bompensiero further stated that to avoid being apprehended with the money he had made arrangements with a former employee to shake hands with him and “palm off” whatever he had received; that Mr. Berry had told him that he needn’t expect very much out of this because by the time it was cut 10 or 11 ways, there wouldn’t be much for him; that later Mr. Berry handed him $400 in an envelope, saying, “This is your share of the Gillenberg deal” and that in a subsequent conversation about Gillenberg, Frank Bompensiero said “Well, I hope that so- and-so will sell his place because he just talked too much.”

Ernest M. Gillenberg testified that in 1951 he acquired a seasonal cocktail license for the Barbara Worth Café in Jacumba; that Frank Bompensiero came into his place early in 1951 and told him he could get him a seasonal license but it would cost $5,000 in cash money and that after he had

Louis C. Davis, handwriting expert, testified as to the signature on Prank Bompensiero’s booking sheet and bank signature card and stated that in his opinion the endorsement “Prank Bompensiero” on the back of the $5,000 cashier’s check was the signature of the same person who had signed the booking sheet and bank signature card.

Thomas B. Colby testified that he operated a country club prior to April of 1952; that he saw Mr. Berry and was told it would be impossible to secure a liquor license; that Louis Trapani told him it would cost $5,000 for a seasonal license and that it would have to be in cash; that he received a call asking him to bring the money and pay it at the Santa Anita race track and that he did so and was told to put in his application and thereafter he received a seasonal license; that he was told that later in the year, when a new batch of licenses would be available, he could convert the seasonal into a general on-sale license for $2,500 extra; that later Trapani asked him for $2,500 more, which he paid, and that he applied for and received a general license.

Tony M. Silva, a motel operator, testified that A1 Bennett came to see him and asked if he wanted a seasonal license, saying it would cost him $5,000; that he agreed and gave him $1,000 down payment and later $2,000 and the final $2,000 when he went to sign an application; that he was given a receipt each time; that these receipts were taken by Bennett; that Bennett, after the final payment, told him to see Mr. Berry; that he did so and Mr. Berry had the papers ready and that he then obtained the seasonal license; that he later obtained a new issue general license after Bennett came to see him again and that Bennett said he would charge $2,500 for it; that he gave Mr. Bennett the money without obtaining a receipt and was sent over to the board, where the papers were again ready.

Harry C. Patterson, operator of a tavern having a beer and wine license, testified that he acquired an on-sale general license by contacting Charles Lyon in Los Angeles; that Lyon told him he would have to pay $8,000 for the license and told him to see Berry at the equalization board; that he told Berry he had seen Lyon and was told by Berry that Lyon was one of the best friends that anybody ever had; that he received an on-sale general license and paid $1,000 to Mr. Lyon; that he did not obtain a receipt from him and was told by Lyon that he couldn’t give him one; that he did not pay the balance of the $8,000 although Lyon twice asked him for it, once saying that Mr. Bonelli was getting impatient; that Lyon told him to bring the balance of the money in a sealed envelope.

Cottardo Ghio testified that Berry told him they weren’t

Ernest Bernardini testified that he operated a restaurant in San Diego under a beer and wine license; that Mr. Trapani and Mr. Ghio came to his place of business and told him that if he wanted an on-sale general liquor license it would cost him $7,000; that he was told by Trapani that the money would have to be paid in $50 and $100 bills; that he did not pay any money and did not receive a liquor license although he had made out an application.

Frank Cerda testified that he owned a tavern, the Mission Inn in Oceanside; that in the fall of 1953 he attempted to get an on-sale general license and filled out a preliminary application form; that thereafter Harry Steetle came to see him and asked him to go outside to his car to talk in regard to his liquor license; that Steetle told him he could get him a license for $4,700 in cash; that he did not talk to Steetle again and did not obtain a license.

Harold F. Dodds testified that he was an operator of a restaurant and bar and acquired a newly issued general on-sale license from the board of equalization; that he" filled out a preliminary application and was then contacted by Harry Steetle, who told him there was a license available and it was to cost him $4,500 for the new issue; that he borrowed the money to purchase the license and took the money up to Bennett’s office. He gave Bennett $3,500 and a note for $1,000; that Bennett placed a ’phone call, saying Harold would be over; that he went to the State Board of Equalization and saw Mr. Berry, who had his preliminary application on his desk; that he then filled out a formal application and received a liquor license.

H. F. Millspaugh, a resort owner, testified that in the fall of 1953 he attempted to get a liquor license from the State Board of Equalization in San Diego; that he filled out a preliminary application and a few days later received a telephone call from Bennett asking him to come to his office;

It is evident from the testimony of the witnesses named that there was sufficient substantial evidence to sustain the verdict of the jury finding appellant guilty of counts 1, 10 and 11 of the indictment. As to the conspiracy count, the evidence set out shows that prior to the fall of 1953, when licenses were available, anyone desiring such a license would have to talk to Mr. Berry, the district administrator, and that he was the only person who accepted applications for formal liquor licenses. After the fall of 1953, preliminary applications were issued to everyone who had a license or a lot, but Berry secured them, and only with his approval could a formal application be filed. Such applications approved by Berry were never turned down by the board in Sacramento. The market value of on-sale general licenses in 1952 and early 1953 was around $12,500 and thereafter around $7,500. Until July 1, 1954, the fee required by the state for the issuance of an on-sale license was $525 in the city of San Diego and $325 in the county area. The witness, A1 Tossas, was instructed by one Cook to come to San Diego for the purpose of selling seasonal licenses and to collect campaign funds for the William G. Bonelli campaign. Tossas picked up money on seasonal licenses in Orange and San Bernardino Counties and carried sealed envelopes between Berry and Cook, and in 1950 he received $500 from appellant as contributions for Bonelli’s campaign. The witness Provart arranged the Gillenberg transaction through Berry and appellant in which Gillenberg paid $5,000 in cash to appellant for a seasonal license and later paid $2,500 to A1 Bennett for a

In People v. Lyon, supra, several of the witnesses in the instant action testified substantially the same as in the instant action and this court there held that only one conspiracy was charged and that the court and the jury were justified in believing that each of the transactions disclosed by the testimony was a part of a single and general conspiracy to ask and receive bribes in connection with the issuance or proposed issuance of such liquor licenses. The same reasoning and ruling applies in the instant case.

In Bompensiero v. Superior Court, supra, 44 Cal.2d 178 , 184, the court said:

“The rule governing the sufficiency of the evidence to justify a suspicion of a conspiracy has been summarized as follows: ‘Direct proof of a formal understanding between parties to the conspiracy is not required as the basis of an indictment or information. “ (i)t was not necessary for the

State to prove that the parties actually came together, mutually discussed their common design, and after reaching a formal agreement set out upon their previously agreed course of conduct. The extent of the assent of minds which are involved in a conspiracy may be, and from the secrecy of the crime usually must be, inferred by the jury from the proofs of the facts and circumstances which, when taken together, apparently indicate that they are parts to the same complete whole.” ’ (Lorenson v. Superior Court, supra, 35 Cal.2d [49] 57-58 [ 216 P.2d 859 ].) The grand jury was justified in the belief that each of the transactions in which a bribe was accepted was part of a single general conspiracy to invoke a bribe for each new liquor license issued throughout the district. ’ ’

Bompensiero claims that there was no proof of any agreement between the parties named in the conspiracy count. However, the gist of the crime of conspiracy, under section 182 of the Penal Code, is the unlawful agreement between the conspirators to commit an offense prohibited by statute, accomplished by an overt act in furtherance thereof. The agreement may be inferred from the acts and conduct of the parties in mutually carrying out a common purpose in violation of the statute. (People v. Benenato, 77 Cal.App.2d 350 , 358 [ 175 P.2d 296 ].) In People v. Steccone, 36 Cal.2d 234 , 237-238 [ 223 P.2d 17 ], it is said:

“As a general rule, a conspiracy can only be established by circumstantial evidence ‘for, as the courts have said, it is not often that the direct fact of an unlawful design which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts, bearing more or less closely or remotely upon the common design (5 Cal.Jur. 521); and it is not necessary to show that the parties met and actually agreed to undertake the performance of the unlawful acts (citing authority), nor that they had previously arranged a detailed plan . . . for the execution of the conspiracy (citing authority).’ ”

In People v. Bennett, supra, 132 Cal.App.2d 569 , 575 [ 282 P.2d 590 ], this court, in considering a previous appeal of defendant Bennett, said:

“There was considerable other evidence applicable to all counts which showed a common scheme or design among Berry and the two appellants. Several other witnesses testified to similar experiences in getting licenses for themselves

or their friends, and similar activities on the part of Bennett or Steetle. The evidence discloses that in many instances large sums of cash were paid to Berry, Bennett or Steetle for which receipts were never given; that much secrecy was engaged in by Berry and the appellants in their dealings with potential licensees; that in all cases where such payments were received licenses were issued; and that in every instance where such payments were refused, whatever the reason therefor, no license was ever issued.”

In People v. Vollmann, 73 Cal.App.2d 769 , 786 [ 167 P.2d 545 ], it was held that the offer or solicitation of a bribe need not be stated in express language as such; it is sufficient that the words used carried the import of a bribe and were evidently intended to bear that meaning; and that it is permissible to show the various steps taken by an accused in committing the crime, including preliminary negotiations.

Under the reasoning of the foregoing authorities it is apparent that sufficient facts were proven in the instant case from which the jury could infer that there was a common design and scheme entered into through the agreement of the defendants herein to ask and receive bribes for and on behalf of a public officer or employee and that it is apparent that the design was to obtain bribes in a considerable amount from persons' desiring to obtain liquor licenses in the area over which defendant Berry was the district liquor control officer.

Appellant argues that the evidence is insufficient to sustain the conviction as to count 10 because it was not shown that Gillenberg had an understanding with appellant that the vote or action of Berry was to be influenced by the payment of $5,000. This argument is without merit. A general conspiracy was established and Gillenberg’s testimony shows that he paid appellant $5,000 to obtain a seasonal license. Provart testified that he talked to Berry about the Gillenberg license and Berry told him to inform Gillenberg that it would cost him $5,000. Berry told Provart to tell Gillenberg that Frank would come and see him, and appellant told Provart that he had met Gillenberg in the Grant Hotel and had received a check from him. The testimony of Provart and Gillenberg, together with the evidence of the general conspiracy, was sufficient to support the verdict and judgment as to count 10.

Appellant argues that there was no evidence, direct or indirect, to support the charge in count 11. However, this

Appellant contends that the trial court erred in permitting the prosecution to amend counts 10 and 11 of the indictment. This amendment was accomplished by interlineation, inserting the word “received” between the words “ask” and “agree to receive” in counts 10 and 11. The amendment was proper in charging a violation of section 68 of the Penal Code. A new crime was not thereby charged and the defendant could not claim surprise as he had the transcript of the grand jury proceedings in which the evidence shows that the sums of $5,000 and $2,500 were “received” as bribes on the dates in question. (See Bompensiero v. Superior Court, supra.) Appellant did not request a continuance and offered no protest when the court stated that it was not necessary to rearraign the appellant. He was not prejudiced by the amendment and no error resulted from it. (People v. Finkelstin, 98 Cal.App.2d 545 , 556, 557 [ 220 P.2d 934 ].)

Appellant contends that the charge contained in count 10 of the indictment is barred by the statute of limitations. However, this contention was made and considered in Bompensiero v. Superior Court, supra, and by the court rejected. A detailed discussion of this contention is set forth on pages 185 and 186 of that decision and reference is hereby made thereto in answer to appellant’s contention herein.

It is claimed that the trial court erred in overruling appellant’s objections to and in denying his motion to strike the testimony of the People’s witnesses relating to several alleged offenses other than the offense for which appellant was on trial. This testimony was admissible to show the common design of the criminal enterprise and extent of the criminal conspiracy, even though it may have tended to prove the commission of distinct criminal acts. (People v. Collier, 111 Cal.App. 215 , 237 [ 295 P. 898 ].) In People v.

Appellant argues that the accomplices’ testimony was not corroborated. This argument is based upon the false premise that witnesses Gillenberg and Provart and others were accomplices. However, it is well settled that the giver and receiver of a bribe are not accomplices under section 1111 of the Penal Code. (People v. Bennett, supra, 569, 581; People v. Lyon, supra, 558, 576.) Furthermore, the testimony of Gillenberg was corroborated by that of his wife and other witnesses, the files of the board of equalization, the cashier’s check for $5,000, and expert testimony as to appellant’s signature on the back thereof. The rule is that the corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness who must be corroborated is telling the truth. (People v. MacEwing, 45 Cal.2d 218 , 224 [ 288 P.2d 257 ].) It appears, therefore, that there was adequate corroboration of the testimony of the witnesses for the prosecution herein.

It is next contended that the trial court was guilty of misconduct and acted as an advocate on behalf of the prosecution. We are not in accord with this contention. Appellant, in his opening brief, devotes 36 pages to the discussion and statement of many excerpts from the reporter’s transcript which he claims show that the trial court was guilty of misconduct. These excerpts relate mainly to the court’s ruling on the admission of evidence and the claimed restriction of the cross-examination of witnesses. In this connection the court instructed the jury that if during the trial he had said or done anything which may have suggested that he was inclined in favor of the claims or position of either party that the jury should not be influenced by any such suggestion and that his object in asking questions of certain witnesses was to bring out in greater detail facts not then fully covered in the testimony.

Appellant further contends that the trial court committed

Appellant complains that the court, in effect, told the jury (Rep. Tr., pp. 1603, 1607 and 1618) that a conspiracy was established as a matter of law. However, a reading of the transcript in this connection does not bear out appellant’s contention. Appellant further states that the court, in effect, told the jury (Rep. Tr., pp. 1612 and 1614) that the moneys that the various witnesses testified they paid were bribes as a matter of law. We do not so read the instructions. In this connection the court was not instructing the jury that bribes were received as a matter of law but was instructing it as to the provisions of sections 67 and 68 of the Penal Code and as to who were and who were not accomplices.

Appellant complains that the court was acting as an advocate in behalf of the prosecution in his comments regarding accomplices and the weight to be given to their testimony. The record does not support this proposition. The jury was properly told that the testimony of an accomplice could not be used to sustain a conviction unless it was corroborated by evidence tending to connect the defendant with the commission of the offense.

Appellant claims that the court should not have given an example in discussing the law relative to conspiracies. The objection in this connection is that the court misled the jury as to the application of the statute of limitations. However, no prejudicial error appears in that connection as appellant’s argument as to the application of the statute was determined adversely to him in Bompensiero v. Superior Court, supra.

It is argued that the trial court committed error and was guilty of misconduct in that he told the jury that the overt acts were “good overt acts.” However, examination of the court’s instruction in this connection shows that the court did not instruct the jury that the overt acts were good overt acts but stated that overt acts proven were “good overt acts.”

Other complaints of appellant as to the instructions given are likewise without merit. It further appears that many of the instructions offered by appellant were covered by other instructions or did not accurately state the law and no prejudicial error resulted from the refusal to give them.

In view of what we have heretofore said, we deem it unnecessary to pass on other points raised by appellant.

The judgment and order denying motion for new trial are affirmed.

Barnard, P. J., and Griffin, J., concurred.

A petition for a rehearing was denied July 9, 1956, and appellant’s petition for a hearing by the Supreme Court was denied July 24, 1956.