People v. Ray

In a nonjury trial defendant was convicted of bribery. A motion for a new trial was denied. Probation was granted. Defendant appeals from the judgment (order granting probation) and the order denying a new trial.

At the time in question William S. Biddle was and had been for about nine years a police officer of the city of Los Angeles. In February 1959 he was given a number of locations to check, apparently for bookmaking. Between February and June, while in uniform, he saw defendant “more than once.” In February or March he saw defendant at 2128 South Hooper Street, a business establishment. Defendant approached Biddle and said he wanted to talk to him. Biddle said, “All right.” Defendant said his bookmaking activities at 2128 South Hooper were being hampered by the extensive investigations conducted by the police. He asked Biddle if he had a “hard on for him,” or if he had a personal grudge against him and that was why he was investigating his places so much; Biddle told defendant he was not mad at him, he and the police department “had no hard on for him”; it was part of his duties to conduct bookmaking investigations and he would continue to make them at defendant’s locations. Defendant said, “You sure are hurting my business. Can’t I do anything for you?” Biddle replied, “No, there is nothing you can do for me.” They parted.

On June 22, 1959, Biddle, in uniform, went to an alley in south Los Angeles in response to a radio call. Defendant met him and said he wanted to talk to him. Biddle said he would not talk to him because his field supervisor and other officers were in the area. After handling the radio call, Biddle went to his police vehicle. Defendant walked to the vehicle and this conversation occurred: Defendant: “You sure are hurting my bookmaking business. Isn’t there anything I can do for you? Do you want to take a little take?” Biddle: “What do you mean?” Defendant: “Whiskey.” Biddle: “I am not interested in whiskey.” Defendant told Biddle that if he

Between June 22 and 30, Biddle arrested a man named Clemmons on a charge o£ bookmaking at an establishment operated by defendant.

Biddle saw defendant again on June 30,1959, at 2128 South Hooper. Biddle was in the establishment making an arrest of some person and asked “Where’s Tommie Ray?” Defendant entered the premises and told Biddle he would like to talk to him after he was through. Biddle, defendant, and the man under arrest walked out of the establishment. Biddle told the man under arrest to sit in the police car. Biddle and defendant walked to the corner. Defendant asked him why he did not pick up the whiskey. Biddle said he was not interested in whiskey. Defendant: “What are you interested in?” Biddle: “Women.” Defendant: “That can be quite expensive.” Biddle: “That’s right.” Biddle told defendant he did not want to talk to him in uniform while he was working, that if he wanted to talk to him to do it “at an off-duty hour at a designated place.” It was arranged they would meet at a park called South Park in Los Angeles at 10 a.m. on July 3, 1959. Defendant told Biddle he did not want to talk to him in an enclosed building or in either of their vehicles “because of the fear of bugs, ’ ’ the meeting should be a casual one, they would walk through the park and accidentally bump into each other.

About 10 a.m. on July 3, 1959, Biddle, accompanied by other officers in a separate vehicle, went to South Park. He had a microphone with a battery and a transmitter concealed on his person. He entered the park. The other officers did not accompany him. Defendant drove to near the park, left his car, and walked into the park. Defendant met Biddle, and in a low, whispering tone asked him if he were “bugged or wired,” and searched his outer clothing with his hands, feeling parts of his body. Biddle asked how business was, and defendant said, “Bad.” Defendant asked Biddle, “Do you want to take a little take?” Biddle: “Of whiskey?” Defendant: “No.” Biddle: “I thought you were talking about something else.” Defendant: “You name it.” Biddle: “It’s up to you.” Defendant: “Then I’ll have something to go on.” Biddle: “I know five books that you have.” Defendant said he did not have more than three. Biddle: 1 ‘ Oh, come off of it. You’ve got more than three spots.” Defendant laughed, again ran his hands up and down the sides of Biddle’s body, and

The only point urged for reversal is: “It is our contention that the money paid to Officer Biddle by the defendant-appellant Ray was paid only after Ray had been induced to do so by the policeman Biddle. It was entrapment. The idea of obtaining the money from Ray originated in the mind of Biddle; Ray had no intention at any time of bribing the officer.’’ This statement, of course, says the evidence shows as a matter of law that defendant was entrapped. The point cannot be sustained.

Entrapment is a positive defense, imposing on an accused the burden of showing he was induced to commit the offense for which he is on trial. (People v. Schwartz, 109 Cal.App.2d 450 , 455 [ 240 P.2d 1024 ].) Entrapment is not established as a matter of law where there is any substantial evidence in the record from which it may be inferred that the criminal intent to commit the offense charged originated in the mind of the accused. (People v. Malotte, 46 Cal.2d 59 , 64-65 [ 292 P.2d 511 ].) Merely affording an opportunity for the commission of the offense does not constitute entrapment. “Where the doing of an act is a crime, regardless of the consent of anyone, the courts are agreed that if the criminal intent originates in the mind of the accused and the offense is completed, the fact that an opportunity was furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense.’’ (People v. Lindsey, 91 Cal.App.2d 914 , 917 [ 203 P.2d 572 ].) Where an accused has a pre-existing criminal intent, the fact that when solicited by a decoy he commits a crime does not show entrapment. (People v. Benford, 53 Cal.2d 1 , 10 [ 345 P.2d 928 ].)

It is clearly inferable from the evidence that defendant was engaged in bookmaking. He had at least three such establishments and the police were investigating him. About a week before June 22, 1959, defendant approached Officer Biddle. In the course of the conversation he com

The judgment and order denying a new trial are affirmed.

Shinn, P. J., and Ford, J., concurred.