People v. Albert

Defendant was charged by indictment of a violation of section 653f of the Penal Code with having solicited Michael Flores Angulo to commit the crime of murder of Pearl Albert, who was the defendant’s wife. He was found guilty by a jury and was sentenced to the state prison for the term prescribed by law, with execution stayed pending appeal. His motion for a new trial was denied. He appeals from the judgment and from the order denying his motion for a new trial.

Appellant does not challenge the sufficiency of the evidence to sustain the conviction, hence we shall summarize the evidence as shown by the record primarily insofar as it is relevant to the grounds upon which defendant seeks reversal.

Pearl Albert, defendant’s wife, was married to him in 1941, and soon thereafter suffered a serious illness resulting in a gradual paralysis so that by 1959 she was almost completely paralyzed, and when not in bed, was confined to a wheel chair. She and defendant separated in 1953, and in a property settlement agreement growing out of divorce proceedings, defendant guaranteed the payment of a stipulated monthly amount for her support.

Angulo resides in the town of Agoura in the San Fernando Valley. On either March 8th or 10th, 1959, defendant, whom Angulo had known for approximately one year, went to Angulo’s home, and in a private conversation with Angulo, which lasted about fifteen minutes, said that his wife was giving him a lot of difficulty, that he wanted her out of the way, and that it was worth $5,000 to him. After the conversation was over, Angulo first went to the State Highway Patrol and within a day or so to the downtown headquarters of the Los Angeles Police Department. Angulo related to the police his conversation with the defendant, and at their suggestion, the defendant was telephoned and Angulo told him that he

The following grounds for reversal are urged:

Error in Receiving Recorded Conversation

Defendant contends that the wire recording obtained by the use of the concealed Minifon was illegally obtained by a fraudulent entry into defendant’s automobile, and hence, under People v. Cahan, 44 Cal.2d 434 [ 282 P.2d 905 , 50 A.L.R.2d 513 ], inadmissible. In support of this contention the defendant relies chiefly upon People v. Tarantino, 45 Cal.2d 590 [ 290 P.2d 505 ], which is clearly distinguishable in that the entry there was made into premises without permission and constituted a trespass, and that a hidden microphone was installed with wires leading to a nearby building where the recordings were made. The uncontroverted evidence here is that it was defendant who first invited Angulo into the automobile and that it was only after Angulo attempted to avoid holding a conversation in the car that he did get in at defendant’s insistence. Here there was no “clandestine eavesdropping” (People v. Tarantino, supra, p. 595) for the defendant knew that whatever he said to Angulo could be repeated by him to others. Where the defendant “freely consents to an entry or search, ... his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable” (People v. Michael, 45 Cal.2d 751 , 753 [ 290 P.2d 852 ]). Where the entry is by invitation of the defendant, a secret recording of a vis-a-vis conversation is not inadmissible as violative of the search and seizure provisions of the United States Constitution (4th and 14th Amendments) or of the California Constitution (art. I, § 19), whether the recording be by means of a self-contained recording device (People v. Wojahn, 169 Cal.App.2d 135 , 142-145 [ 337 P.2d 192 ] (hearing den.) ; People v. Goldberg, 152 Cal.App.2d 562 , 573 [ 314 P.2d 151 ] (hearing den.)), or by means of a concealed wireless transmitter where the recording is made at another location. (People v. Avas, 144 Cal.App.2d 91 , 98-99 [ 300 P.2d 695 ] (hearing den.); People v. Mackenzie, 144 Cal.App.2d 100 , 106-107 [ 300 P.2d 100 ] (hearing den.).)

The obvious purpose of section 653h was to proscribe electronic eavesdropping and not the recordation of a face to face conversation, the recreation of which would probably be more accurate from the recording than from the memory of the participants.

Error in Withdrawing Issue from Jury

Defendant’s argument here is obscure as we are unable to determine precisely what “issue” he contends was withdrawn from the jury. Apparently analogizing from the established procedure in case of a confession, he contends that the evidence of the manner in which Angulo arranged the second meeting with defendant, and the evidence as to the circumstances under which Angulo entered defendant’s car involving the question of consent and having been heard by the jury before the trial court ruled on the admissibility of Angulo’s testimony of the recorded conversation and the Minifon recording itself, the issue of whether the search or seizure was legal or illegal should have been submitted as an issue of fact to the jury. If this be defendant’s contention it is not tenable. The same contention was argued in People v. Gorg, 45 Cal.2d 776 [ 291 P.2d 469 ], and the court said at page 781: “Defendant urges, however, that the same procedure should be followed as in the case of a confession, where the trial court initially determines the question of admissibility and then instructs the jury to disregard the confession if they find that it was not freely and voluntarily made. The rule of the confession cases is justified by the fact that the jury must necessarily be informed of the circumstances surrounding the confession properly to evaluate it. The probative value of the evidence obtained by a search or seizure, however, does not depend on whether the search or seizure was legal or

It is not contended that any of the evidence heard by the jury involving the question of consent was not relevant or material on the issue of guilt nor that any of such evidence was prejudicial.

Defendant’s argument that the court “withdraw the questions of fact relating to the manner in which Angulo obtained access into defendant’s automobile from the jury even to the extent that the evidence reflected on the credibility of the People’s witnesses” is not borne out by the record. The court properly reserved for itself the decision on admissibility, but did not withdraw the issue of the witnesses’ credibility from the jury, if it was in any way affected by the evidence relating to the prior conversation between Angulo and the defendant prior to the conversation in the car.

Error in Admitting Entire Transcript of Angulo’s Television Appearance

Angulo testified that during the car conversation the defendant gave him $50, consisting of two $20 bills and one $10 bill, which were identified by him and received in evidence. He further testified that defendant said that he would bring “the rest of the money later on in the week.” This testimony obviously created an inference that the $50 was a down payment to Angulo in return for his agreement to do away with Mrs. Albert. On cross-examination defendant sought to dispel this inference and to impeach Angulo by confronting him with a limited portion of the transcript of a television appearance made by Angulo. Prom this transcript, it appeared that the television interviewer related to Angulo a purported statement of the defendant that he (defendant) had given Angulo $50 because Angulo had told defendant that his (Angulo’s) daughter was in need of an operation. Angulo was asked by the interviewer what he had to say to that and Angulo replied: “That’s the excuse I told him I needed the money for” and also that he did tell the defendant that he needed the money. Unexplained, this created an apparent contradiction in Angulo’s testimony. To explain this apparent inconsistency, the prosecution, over defendant’s objection, was permitted to put into evidence other portions of the same interview which, in substance, were a repetition of Angulo’s testimony of the car conversation and to the effect that defendant agreed to pay Angulo $1,000 to kill Mrs. Albert and

The “entire conversation” rule (Code Civ. Proc., § 1854) does not permit reception of other portions of a conversation which are not explanatory of that which has been brought out by the adversary, and which are intrinsically inadmissible. (People v. McCoy, 25 Cal.2d 177 , 187 [ 153 P.2d 315 ]; Crosby v. Martinez, 159 Cal.App.2d 534 , 539 [ 324 P.2d 26 ].) However, it is well established that when the defense has endeavored to discredit a prosecution witness by calling attention to a part of a prior statement apparently inconsistent with the witness’ testimony at the trial, the district attorney may properly question the witness as to the other parts of the statement for the purpose of explaining the apparent inconsistencies. (People v. Ferdinand, 194 Cal. 555 , 562-563 [ 229 P. 341 ]; People v. Kennedy, 21 Cal.App.2d 185 , 200 [ 69 P.2d 224 ]; People v. Miller, 56 Cal.App. 472 , 477 [ 206 P. 89 ]; People v. Valencia, 27 Cal.App. 407 , 409 [ 150 P. 68 ].)

Error in Playing Tape Recording of a Wire Recording

Defendant asserts error by the receipt in evidence of a tape recording made from the Minifon wire recording of the ear conversation. An officer of the scientific investigation division of the police department was examined at length as to the manner in which the tape recording was made and testified that it accurately reflected the exact words on the wire recording. The only grounds of objection urged by defendant to the introduction of the tape recording are that it was illegally obtained by use of the Minifon, that there was no sufficient foundation for its introduction and that it was secondary evidence.

Defendant now vaguely hints at the fragility of the wire recording and the potentiality of a tape recording not disclosing sections of the wire recording which might be cut out, yet he makes no claim that the tape recording is not itself a recording of the entire Minifon wire recording.

The foundation for the admission of the tape recording was entirely sufficient and it is settled that, a proper foundation having been established, re-recordings are admissible in evidence. (People v. Wojahn, supra, 169 Cal.App.2d 135 , 146; People v. Porter, 105 Cal.App.2d 324 , 330-331 [ 233 P.2d 102 ].)

Error in Reading Transcript of Tape Recording

A reporter, experienced in making transcripts from tape and Minifon recordings, made and identified a

Error in Limitation of Cross-examination of Mrs. Albert

Mrs. Albert, wife of the defendant, was called as a witness by the prosecution and testified that defendant had been paying her alimony from which the jury might draw an inference of the defendant’s motive to have her murdered. By cross-examination and an offer of proof, counsel for defendant sought to establish that Mrs. Albert wanted her husband defended; that she helped to raise his bail and that

Misconduct of Prosecuting Attorney

Defendant claims seven instances of alleged prejudicial misconduct by the prosecuting attorney during the examination of witnesses and during his argument to the jury. We have scrupulously examined each such claim of misconduct and find none, much less reversible error resulting therefrom. In approaching a claim of prejudicial misconduct, we find the general rule in People v. Berryman, 6 Cal.2d 331 , 337 [ 57 P.2d 136 ], recently quoted in People v. Lyons, 50 Cal.2d 245 , 262 [ 324 P.2d 556 ], as follows: “The general rule regarding misconduct of the district attorney which tends to and is likely to result in prejudice to the defendant is that where no objection is made to such misconduct by the defendant, or where objection is made and the court sustains the objection and properly admonishes the jury, the misconduct claimed to be prejudicial to defendant’s rights will not furnish grounds sufficient to justify the granting of a new trial or the reversal of the judgment. [Citation.] There are two exceptions to this general rule. One is where the case is closely balanced and there is grave doubt of defendant’s guilt, and the acts of misconduct are such as to contribute materially to the verdict, a miscarriage of justice results requiring a reversal. [Citations.] The other exception is where the act done or remark made is of such a character that a harmful result cannot be obviated or cured by any retraction of counsel or instruction of the court. In such cases the misconduct will furnish ground for a reversal of the judgment, even where proper admonitions are given by the court. [Citations.] ”

In only one instance did defendant offer any objection.

The one instance to which objection was made concerns part of the prosecutor’s argument to the jury as to defendant’s character as exemplified by his reducing his offer from $5,000 to $1,000, and then only having $50 with Mm which he gave to Angulo, and in connection with this argument, the prosecutor predicted that if Angulo had proceeded and murdered Mrs. Albert, he never would have received anything more from the defendant. Defendant, without citing authority, contends this constituted a statement of the prosecutor’s belief unsupported by any evidence. The contention is untenable. (See People v. Reznick, 75 Cal.App.2d 832 , 841 [ 171 P.2d 952 ].) The statement was a mere prediction, and not the assertion of a belief in an existing fact based upon evidence not before the jury.

The prosecution called Mrs. Albert as a witness to testify concerning defendant’s financial obligations to her as furnishing a possible motive for his solicitation. Defendant contends the calling of Mrs. Albert as a witness was prejudicial because her hopelessly crippled condition as evident to the jury aroused their pity and corresponding prejudice against the defendant. No objection was made by the defendant to her appearance and no contention is now made that her testimony was not relevant or material.

Defendant cannot complain of incidental prejudice, if any, created by her appearance.

Another instance' of claimed misconduct, and to which defendant voiced no objection at the trial, includes an inadvertent misquotation of one word in a statute which was immediately cured by the defendant’s objection. Another claimed instance is based upon a request of the prosecuting attorney for an exemplar of a witness’ handwriting. Still another was a comment by the district attorney, during argument, that regardless of Angulo’s credibility, the evidence from the recordings was sufficient to convict. In none of these do we find prejudicial misconduct of the prosecuting attorney.

Error in Instructions

(1) The court instructed concerning defendant’s

(2) The defendant submitted an instruction on the corroboration required under Penal Code, section 653h, reading in part as follows: “The corroboration must tend to connect the defendant not with said Angulo, but with the alleged offense itself” (emphasis supplied). The court modified the requested instruction by eliminating the emphasized words. In view of the fact that the same instruction submitted by defendant began as follows: “Evidence of the defendant’s acquaintance with Michael Flores Angulo is not of itself sufficient corroboration required by law” we see no error in the modification by elimination of repetitive provisions. Having instructed on the specific point that defendant’s acquaintance with Angulo is not of itself sufficient corroboration, the court then generalizes that corroboration must tend to connect the defendant with the alleged offense.

(3) Defendant complains of the court’s modification of two other instructions on corroboration requested by him. The modification consisted of deleting unnecessary adjectives and reference to specific testimony. As modified, the instructions were each a correct general statement of the principle involved.

(4) The court refused to instruct that installation of a dictograph in a vehicle without consent was a misdemeanor and an unlawful search and seizure. We have already determined that this was a question of law and not an issue for the jury.

(5) Having adequately instructed on determining the credibility of witnesses, an additional instruction offered by defendant and refused was not only redundant, but was not a complete or correct statement of the law.

(6) The court gave CAL JIG instructions Numbers 1 and 21. Without citation of authority defendant asserts error in refusal to give a proffered instruction which is essen

The'demonstrability of defendant’s guilt is established by the irrefutable, immutable and imperishable recordation of Ms own voice in making his nefarious proposition to Angulo. Defendant received a fair trial, free of prejudicial error.

Judgment and order denying motion for new trial are affirmed.

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

A petition for a rehearing was denied August 9, 1960, and appellant’s petition for a hearing by the Supreme Court was denied September 7, 1960.