People v. Burgess

Appellant was charged in five counts with accepting bribes (Pen. Code, § 68) and in a jury trial was found not guilty on count I and guilty on counts II through V. He appeals from the judgment and from the order denying his motion for a new trial. Since the sufficiency of the evidence to sustain the conviction is not questioned, we may condense our summary of the voluminous record except as it relates to appellant’s specific assignments of error.

Appellant was employed as a Driver’s License Examiner for the Department of Motor Vehicles at the Hope Street office in downtown Los Angeles. He resided in Alhambra. During 1957 he had dealings at his home with each of the four persons identified in the counts on which he was found guilty. Each of these persons (all foreign born and recent immigrants) testified that he had given appellant the sum

In urging reversal of the judgment, appellant contends (1) that the trial court erred in admitting evidence which he insists was the product of an unlawful arrest, and (2) that the district attorney was guilty of prejudicial misconduct in questioning appellant in such a manner as to suggest to the jury that he had perpetrated other similar offenses in addition to those charged.

During April, 1957, appellant’s activities were the subject of an intensive investigation by Mr. Fitzpatrick and Mr. Beckwith, investigators (Veh. Code, § 136) employed by the Department of Motor Vehicles. The investigation disclosed that the accident-death and injury rate on licenses which appellant had issued was appreciably higher than the normal. During the course of their investigation, Fitzpatrick and Beckwith interrogated approximately 20 people who stated that they had gone to appellant’s home, paid him $20 and obtained driver’s licenses without passing the required qualifying tests. Moreover, the investigators received oral communications from an officer of the California State Highway Patrol to the effect that a collateral investigation of appellant’s activities was being conducted by that department.

The investigators established contact with a Mr. Klementich, who told them that he had been a runner for appellant, had taken a number of people to his home in Alhambra, where appellant had issued licenses to them for the sum of $20 each. For about two weeks prior to April 30, 1957, the investigators had appellant’s house in Alhambra under periodic surveillance from about dusk to approximately midnight. During this time they observed a number of vehicles coming to appellant’s residence, from which adults, mostly male, would alight and enter appellant’s residence, remaining there from 30 to 45 minutes and then departing. The investigators observed Klementich come to the house with different people on four different occasions before they became personally acquainted with him.

Mr. Nicholas Bobrick was employed by the investigators to pose as a recent immigrant to this country and to attempt to obtain a driver’s license from appellant. For the purposes of the investigation, Mr. Bobrick used the name Nikola Bradovic, and obtained an immigrant’s card in that name.

Bobrick returned to appellant’s residence in the company of Klementich on the evening of April 29, 1957. During both interviews, radio equipment was strapped to Bobrick’s body, and by this device the conversations within the house were overheard by the investigators who were sitting with a radio receiver in a car parked a short distance from appellant’s residence. After entering the house, Bobrick observed appellant fill out the application form. At appellant’s direction, Bobrick placed his thumb print thereon. Appellant then gave Bobrick a temporary license, whereupon Bobrick said aloud, in English, “Thank you, Mister” which was a prearranged signal to inform the investigators that the deception had been successful and the illegal transaction completed. The investigators left the vehicle and approached appellant’s front door, just as Bobrick and Klementich were about to depart. They entered appellant’s residence, and informed appellant that he was under arrest. The investigators displayed their identification cards and badges to appellant, and placed appellant under restraint.

During their search of the premises, Fitzpatrick and Beckwith uncovered a number of documents which were thereafter

Vehicle Code, section 136, provides that investigators and other designated officers of the Department of Motor Vehicles shall have the powers of peace officers for certain specified purposes. However, it is unnecessary for us now to decide the debatable question whether this section authorized Fitzpatrick and Beckwith to make the arrest here in question in their capacity as peace officers. This is so because the evidence above recited afforded ample basis for the trial court’s finding that the investigators were justified in making the arrest in their capacity as private persons. (Pen. Code, § 837; People v. Ball, 162 Cal.App.2d 465 , 468 [ 328 P.2d 276 ]; cf. People v. McCarty, 164 Cal.App.2d 322 , 328 [ 330 P.2d 484 ].)

The authority of a private citizen to make an arrest is spelled out in Penal Code, section 837, as follows: “A private person may arrest another: 1. For a public offense committed or attempted in his presence. 2. When the person arrested has committed a felony, although not in his presence. 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”

In Coverstone v. Davies, 38 Cal.2d 315 , 320 [ 239 P.2d 876 ], the Supreme Court construed former section 836, subdivision 1, of the Penal Code (identical in terms with present § 837, subd. 1) and expressly declared that an arrest by a peace officer was authorized “. . . when ‘circumstances exist that would cause a reasonable person to believe that a crime had been committed in his presence.’ ” In view of the identical language employed in section 837, subdivision 1, of the Penal Code, it would appear that a

Without question, the evidence above recited is more than adequate to sustain the trial court’s implied determination that there was probable cause for the investigators’ actions. They had every reason to believe that when their decoy, Bobrick, gave the prearranged signal, the driver’s license had been given in exchange for the money paid and without the required tests. Indeed, the unusual circumstance here revealed is the jury’s action in acquitting appellant on this count. However, the acquittal, or conviction, of appellant has no bearing on the legality of the arrest. As stated in Coverstone v. Davies, supra, 38 Cal.2d 315 , 319: “The fact that [the persons arrested] were exonerated in the criminal proceeding has no bearing upon the legality of the arrest. (Cf. Neves v. Costa, 5 Cal.App. 111 , 118 [ 89 P. 860 ]; Wilson v. Loustalot, 85 Cal.App.2d 316 , 325 [ 193 P.2d 127 ], to the effect that the finding of guilt in the subsequent criminal proceeding cannot legalize an arrest unlawful when made. The converse would appear to be equally true.) Since it is settled that a peace officer may lawfully make an arrest for a public offense committed or attempted in his presence (Pen. Code, § 836), the critical question presented in this case is whether the acts done in the presence of the arresting officer justified the arrest being made without a warrant.” The critical question is precisely the same in the instant case and must be answered in the affirmative.

The term “in his presence” is liberally construed. (See People v. Lavender, 137 Cal.App. 582 , 586-589 [ 31 P.2d 439 ].) Presence is not mere physical proximity but whether the crime is “. . . apparent to the officers’ senses” (People v. Brown, 45 Cal.2d 640 , 642 [ 290 P.2d 528 ]). The “senses” include those of hearing and smell. (People v. Bock Leung Chew, 142 Cal.App.2d 400 , 402-403 [ 298 P.2d 118 ]; People v. Chong Wing Louie, 149 Cal.App.2d 167 , 169-170 [ 307 P.2d 929 ].) Moreover, a public offense may be committed in an officer’s presence when his auditory perception is effected by an electronic device. (People v. Bradley, 152 Cal.App.2d 527 , 532 [ 314 P.2d 108 ].)

Although the argument is somewhat loosely stated, the substance of appellant’s second contention is that the trial

Among the documents seized on the occasion of appellant’s arrest was a loose-leaf calendar on which in his handwriting were numerous names and figures indicating that he had used it as an appointment memorandum. Appellant testified in his own behalf and was extensively questioned by his counsel with reference to the notations on the calendar. He testified that he had used it from time to time to record the results of qualifying examinations given to applicants at his home. On his direct examination, he identified several names on the calendar other than those of the persons mentioned in the information. He explained that the numerals below the names indicated the results of eye tests administered to such persons. He also testified from the calendar concerning the results of eye tests which he had administered in connection with the applicants named in the information. He categorically denied receiving from these applicants the sums which they previously had testified they paid appellant. Again on cross-examination appellant unequivocally stated that he had never taken anything in excess of the statutory fee from any applicant.

On cross-examination, and without objection from appellant, the deputy district attorney further questioned appellant with respect to other names that appeared on the calendar, eliciting the fact that he had examined the named persons in his home in connection with their applications for licenses. However, at a later stage in the cross-examination, appellant’s counsel interposed the objection that a similar question exceeded the scope of the direct examination. This objection was overruled and the prosecutor continued to question appellant concerning his dealings with a number of other applicants. All of appellant’s answers were to the effect that his transactions were regular and proper in every respect.

Thereafter, the district attorney was permitted, over appellant’s objection, to ask appellant whether he had accepted the sum of $20 from each of four persons whose names appeared on the calendar but who were not parties to any of the transactions charged in the information. In each instance, appellant categorically denied accepting any sum in excess of the lawful fee.

There is some logic in the argument that appellant opened the door to the cross-examination of which he now complains by testifying on direct concerning several of the same series of transactions. However, for the purposes of this appeal we may assume the correctness of appellant’s contention that the cross-examination exceeded the scope of the direct and transgressed the limitations set in People v. McCarthy, 88 Cal.App.2d 883 , 888-889 [ 200 P.2d 69 ], and other decisions therein discussed. As we shall later point out, a holding that there was error in this respect would not justify a reversal.

Appellant further argues that the failure of the prosecutor to call the available witnesses in rebuttal demonstrates that the cross-examination with reference to appellant’s dealings with such witnesses was conducted in bad faith. We cannot agree. Assuming that the testimony of these witnesses would have impeached appellant and would have tended to prove him guilty of other similar crimes, such testimony would have been objectionable. It has been held that impeaching testimony of this character introduced in rebuttal after the defense has rested puts a defendant at an undue disadvantage. (People v. McCarthy, supra, 88 Cal.App.2d 883 , 888; People v. Rodriguez, 58 Cal.App.2d 415 , 418-419 [ 136 P.2d 626 ] ; People v. Schmitz, 7 Cal.App. 330 , 360-361 [ 94 P. 407 , 419, 15 L.R.A. N.S. 717 ].) Therefore, if the prosecutor had called these witnesses, and if they had impeached appellant’s self-exonerating testimony, undoubtedly we would have been presented with a much more serious assignment of error than that which now confronts us.

As stated in People v. Watson, 46 Cal.2d 818 , 836 [ 299 P.2d 243 ] ‘miscarriage of justice’ should be declared only when the court, ‘ after an examination of the entire cause, including the evidence, ’ is of the ‘opinion ’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” Applying the foregoing test to the record before us, we are of the opinion that it is not reasonably probable that a result more favorable to the appellant would have been reached in the absence of the error of which complaint is here made. If we entertained any doubt on the subject we would be constrained to give appellant the benefit of it. (People v. Campbell, 162 Cal.App.2d 776 , 787-788 [ 329 P.2d 82 ] ; People v. Gibson, 165 Cal.App.2d 685 , 689-690 [ 332 P.2d 113 ].)

The judgment and order denying new trial are affirmed.

Fox, P. J., and Ashburn, J., concurred.

A petition for a rehearing was denied May 25, 1959, and appellant’s petition for a hearing by the Supreme Court was denied June 24, 1959. Schauer, J., was of the opinion that the petition should be granted.