People v. Phillips

Robert W. Phillips and Thomas P. Rose were convicted of two counts of grand theft and one count of conspiracy to commit grand theft. Both appealed and presented a joint opening brief. However, on April 14, 1960, this court upon Rose’s request dismissed the appeal as to him. We now have before us the appeal of Phillips.

He claims the evidence to be insufficient to sustain the conviction of conspiracy (Count I) or to sustain the convictions of grand theft. (Counts II and III.) The basis of the convictions is the obtaining from one Barz his equity in certain real property through false pretenses. In addition to the attack upon the sufficiency of the evidence appellant Phillips claims error in (1) the court’s instruction concerning the responsibility of one who joins an existing conspiracy, (2) error in receiving certain testimony designed to show common plan, scheme and design, and (3) error in refusing certain instructions concerning common scheme and design. We have concluded that appellant’s points are not well taken.

So far as sufficiency of the evidence is concerned we must deal with a reporter’s transcript of 3,186 pages and briefs aggregating 295 pages. Having found the evidence to be sufficient we are not under obligation to review the same in an effort to convince counsel or others of the soundness of our conclusion. Pores v. Purity Milk Co., 135 Cal.App.2d 305 , 309 [ 287 P.2d 169 ] : “It is not the province of a reviewing court to comment on each evidentiary conflict or disagreement or to present a detailed argument on the sufficiency of the evidence to support the findings.” Sonkin v. Hershon,

We have examined the evidence in the light of the rules laid down in People v. Daugherty, 40 Cal.2d 876 [ 256 P.2d 911 ], and many other eases, refraining from a weighing of the proofs or inferences and remembering that “ 1 “before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground” of insufficiency of the evidence, “it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. • • . We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.” If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. . . .’” (P. 885.)

Count II charges Phillips and Rose with grand theft (Pen. Code, § 487, subd. 1), through inducing Peter Barz and Aurora Barz to part with their equitable interest in real property of a value exceeding $200, which inducement was brought about by false pretenses. Peter Barz owned the Shore Motel representing an investment of $95,000, and advertised it for sale. He thus met appellant Phillips who was engaged in dealing in real estate. Phillips endeavored without success to interest Barz in various properties, including Holiday Motel, an orange grove, a Colorado River ranch, a Russian River resort, a Chinchilla farm and a Clear Lake resort. Finally he offered a three-way deal which Barz accepted and which involved Rex Dettre’s obtaining the Shore Motel,

On February 12, 1954, Phillips was informed that the second trust deed on Rancho Motel, upon which he and one Lindemann had a third lien, had been foreclosed. He thereupon asked Barz to come to his office. Barz had previously complained, “I did not receive any payment which I was supposed to receive on the 1st of January. I did not receive the two thousand dollars that I was supposed to receive on the 10th of January. ‘Well,’ he said, ‘be patient; everything is going to straighten out by itself. ’ . . . ‘Well, I hope so, because I am broke, I have got to have some money. ’ That was that.” When Barz arrived on February 13th and asked for the money, Phillips said: “ ‘I haven’t got the money, but you can get it in a couple of days. ’ ‘ On what ? ’ I said to him. He said, ‘On the Rancho Motel,’ he said. Then I said to him, ‘I thought you were going to give me the trust deed on the Hopi.’ He said, ‘But this is the better,’ he said, ‘and all you have to do,’ he said, ‘is just sign this paper that you accept this trust deed. In a couple of days the local bank is going to refinance that motel and you are going to get the full amount what the trust deed calls for.' ” Barz signed, and Phillips said: “ ‘In a few days everything will be straightened up, then you are going to get the $10,000.00,’ or whatever the amount of the trust deed called for.” Thereupon Barz took over a $10,000 third trust deed on the Rancho Motel. Upon returning home he found a letter advising him of the fact that the second mortgage on the Rancho Motel had been foreclosed. He telephoned Phillips, saying: “ ‘Tomorrow morning I am coming over to your office and see if you can repair it.’ I said, ‘Up to now I trusted you wholly,’ I says, ‘but from now on I doubt if you are honest,' and he repeated, he says, ‘ Come over to the office, maybe we can do something. ’ ” “ Mr. Phillips told me that there must be some misunderstanding because the local bank was going to refinance and I was going to get my money in full, so to be patient, and that the following day I shall go to his office and he is going to explain it to me more in detail. ’ ’ When seen on the following day Phillips “said there must be some misunderstanding. He said, ‘Don’t worry,' he says, ‘we are going to take care of it and stop the foreclosure and have the thing refinanced. ’ . . . Then I said to him, ‘Well, let’s forget the whole thing, and give me the original trust deed that you promised me from the Hopi House.’ ‘Well,’ he said, ‘maybe we can work it out.’ ” Then

Barz relied upon the various representations, express and implied, made to him by Phillips. It is not essential that he rely upon them exclusively. “The false pretense or representation must have materially influenced the owner to part with his property, but the false pretense need not be the sole inducing cause.” (People v. Ashley, 42 Cal.2d 246 , 259 [ 267 P.2d 271 ].) A partial investigation by the victim of false pretenses does not as a matter of law preclude reliance upon them; it merely presents a question of fact for the jury. Barz did make inquiries of the owner of a frozen food locker in Norwalk, California, and received some information from him but such an investigation did not begin to go far enough to discover the truth. The freezer property is in Texas and Barz was in California. (See People v. Robertson, 167 Cal.App.2d 571 , 577-578 [ 334 P.2d 938 ] ; 35 C.J.S., § 22, p. 664; 23 Cal.Jur.2d, § 37, pp. 90-92.) Moreover, if it were to be said that Barz was “incredibly credulous and greedy, . . . that does not absolve defendant from guilt.” “On the criminal side it is recognized that 1 [t]he guilty party is prosecuted in the interest of the people of the state, and not in the interest of the party defrauded. ’ (People v. Skidmore, 123 Cal. 267 , 268 [ 55 P. 984 ].) Foolish reliance by the victim of a preposterous fraud does not require that one who has violated the statute should go free on that account. ‘In determining in cases like the present whether the defrauded party really believed and acted upon the representations of the accused it is proper to consider whether they were of a character to probably induce belief in his mind or in the mind of any person of ordinary intelligence; but the law as it is at this day understood does not make it essential to conviction that the pretenses must have been such as would probably deceive such a person; the guilt of the accused does not depend upon the degree of folly or credulity of the party defrauded; the rule invoked affords no defense against a criminal charge.’” (People v. Gilliam, 141 Cal.App.2d 749 , 751-752 [ 297 P.2d 468 ].)

Count III. After Phillips told Barz he could not give him the Hopi House trust deed as above related, Barz brought a lawyer, Mr. Pitts, into the situation. He told Phillips, among other things: “ ‘You’d better do better here with Mr. Barz because everything that is here, I can’t make from head to tail.’ ” Phillips offered “ ‘to reverse the Clear Lake resort to Mr. Barz.’ ” Pitts said: “ ‘Well, at least it is close by, you can go over and look at it, and it will be better than in Texas with all this paper that is not worth the ink it is written on. ’ ’ ’ Phillips declared that he had a first mortgage of $30,000 against the resort and was willing to wipe it out and make an exchange for it. “So I told him all the trust deeds I got, I would give him, and he would give me the Clear Lake. . . . Mr. Phillips said he is going to make an

At this point Rose was introduced into the conspiracy (discussed infra) as an active participant. About February 19, 1954, Barz called Phillips saying he was worrying because his lawyer and the Merced [Mercedes] bank had told him “the frozen bank in Merced, was also in foreclosure.” Phillips opined it could not be as he knew nothing about it. When Barz remarked that he was coming over tomorrow Phillips replied: “ [H]e said, ‘you come over there. I got something good for you, some good news for you. ’ ’ ’ When Barz arrived on the 20th Phillips said, “ ‘Don’t worry, don’t worry anything about it, I got a rich man in the next office.' ” “I says that I was very much worrying about it, worrying about what the lawyer told me, and I said I was so upset I did not want to see my 30 years of hard labor disappear into thin air. And he calmed me down, ‘Don’t worry,’ he says, ‘next door in the main office,’ he said, ‘this man is a millionaire,’ he says, ‘He is very much interested about your—about the freezer because he used to have a freezer himself, and he wants to make a present to his brother-in-law. ’ ” Barz was then introduced to Rose who in Phillips’ presence made a proposal to exchange Wawona Lodge at Big Bear Lake for the trust deeds held by Barz, saying, “ ‘I have got the motel so-and-so,’ he said, ‘I am willing to make an exchange with your trust deeds because I know all about the freezer plant and I want to make a present to my brother-in-law, which he is a butcher by trade. ’ ” But Barz replied: “ ‘ I am not interested because I have got my head full already with motel. ’ ’ ’ Later, in April, Barz met with Rose and Dettre in Phillips’ office. Phillips said “that Mr. Rose has got a lodge, Malibu Lodge, which consists of a restaurant and a few cabins, it is a beautiful location, that I should go there and take a look, that it was a going concern. . . . He said that he had a good income and that he hated to part but there was some difference between Mrs. Rose and the present tenants, that they couldn’t get together, that is the reason they wanted to get rid of it. ... I said, ‘If it is

Count I charges conspiracy between Phillips, Rose, Gluskin, Ryan and others, to commit the crime of grand theft. Overt act number 6 alleged in the indictment is the obtaining of the agreement for exchange of the Shore Motel, and number 11 is obtaining the exchange agreement upon the Malibu Lodge.

“The gist of a criminal conspiracy is a corrupt agreement of two or more persons to commit an offense prohibited by statute, accompanied by some overt act in furtherance of the objects of the agreement. [Citations.] The existence of the conspiracy may be established by circumstantial evidence. [Citation.] The agreement may be inferred from the acts and conduct of the defendants in mutually carrying out a common purpose in violation of the statute. [Citations.] It is not necessary that the overt acts be criminal. [Citation.] If such acts are done as a step toward the furtherance of the conspiracy they are

“If in their endeavors to achieve the same end, the defendants pursued a common purpose by their several, respective acts, each contributing his part, the jury is warranted in concluding that all were involved in a conspiracy to effect a common object.” (People v. Frankfort, 132 Cal.App.2d 610 , 624 [ 282 P.2d 1002 ].)

It is not necessary that all the alleged conspirators be found guilty, but it is enough that unlawful concert of action on the part of two of them be established. (People v. Calhoun, 50 Cal.2d 137 , 143 [ 323 P.2d 427 ] ; People v. Gilbert, 26 Cal.App.2d 1 , 26 [ 78 P.2d 770 ].) If Rose and Phillips are shown to have been parties to a conspiracy the dismissal of Rose’s appeal can have no effect upon Phillips’ liability to prosecution and conviction. (Idem.) That they did join in such an unlawful concert of action and did pursue it until Barz had been stripped of practically all of his assets is manifest from the evidence outlined supra in the discussion of Counts II and III, and Phillips was an active participant from beginning to end. The conviction on Count I is adequately supported.

Appellant complains of an instruction given to the effect that one who joins an existing conspiracy “is liable for every act, and is bound by the acts and declarations of each and all the conspirators, done or made in pursuance and furtherance of the said conspiracy.” (CALJIC Instruction No. 932.) This instruction was held in People v. Weiss, 50 Cal.2d 535 , 563-565 [ 327 P.2d 527 ], to be erroneous because it is susceptible of the interpretation of liability for 11 criminal acts done before the person joining the conspiracy became a party thereto. ’ ’ Respondent agrees that that is the case but argues correctly that it cannot be prejudicial to the sole appellant, Phillips, for he was a party to the conspiracy from the beginning. Rose might have complained of this instruction but when his appeal was dismissed at his request the instruction ceased to have any significance in this court.

“It is settled in this state, however, that except when it shows merely criminal disposition [citations], evidence that is relevant is not excluded because it reveals the commission of an offense other than that charged. ‘The general tests of the admissibility of evidence in a criminal case are; . . . does it tend logically, naturally, and by reasonable inference, to establish any fact material for the people, or to overcome any material matter sought to be proved by the defense ? If it does, then it is admissible, whether it embraces the commission of another crime or does not, whether the other crime be similar in kind or not, whether it be part of a single design or not.' ” (People v. Peete, 28 Cal.2d 306 , 314 [ 169 P.2d 924 ].) Fricke on Criminal Evidence (5th ed.), page 289: “In a prosecution for theft by false pretenses proof of false representations and pretenses made to other persons and similar to those made to the complaining witness are admissible to furnish the corroboration required by law in such eases (People v. Brecker, 20 Cal.App. 205 [ 127 P. 666 ]; People v. Whalen, 154 Cal. 472 [ 98 P. 194 ]; People v. La France, 28 Cal.App.2d 152 [ 82 P.2d 465 ]) and, as will be seen in the discussion of those subjects, is generally admissible to prove intent or knowledge or both knowledge and intent.” Witkin on California Evidence, section 136, page 158: “And the cases illustrating the exceptions are so much more numerous than those applying the exclusionary rule that it has been suggested that the true rule could be more realistically stated in affirmative form: That evidence of other crimes is admissible whenever it is relevant to a material issue, and that it should be excluded only where its sole purpose and effect is to show the defendant’s bad moral character (disposi

The foregoing remarks apply to the evidence of Elizabeth K. Jones, Helen Beilsten and Daisy Storms. That of Fred Packard relates only to uncompleted deals between the witness and Phillips and is entirely innocuous. John Plalberg merely testified to his appraisal of the Lake Wood Resort, which testimony does not remotely fall within the Albertson doctrine.

Finally, complaint is made of the court’s refusal to give two proffered instructions concerning proof of other offenses. The following instruction, modeled on CAL JIG 33, was given: 11 Evidence was offered in this case for the purpose of showing that the defendants made similar representations concerning the properties which are the subjects of the grand theft counts in this indictment. This evidence [was] presented by the witnesses, George D. Elliott, Fred M. Packard, Elizabeth K. Jones, Helen Beilsten, John Holberg, and Sergeant Daisy Storms.

“Such evidence was received for a limited purpose only: not to prove distinctive offenses or continual criminality, but for such bearing, if any, as it might have on the question whether the defendants are innocent or guilty of the crimes charged against them in this action. You are not permitted to consider that evidence for any other purpose, and as to that purpose you must weigh such evidence as you do all other in the case.

“The value, if any, of such evidence depends on whether or not it tends to show that there existed in the minds of the defendants a plan, scheme, system or design into which fitted the commission of the offenses for which they are on trial. ’ ’

This covers the subject of defendant’s requested instructions as far as they correctly state the law. However, both were properly refused because they contain improper versions of the governing rule. Specifically, one of them, number 27, contains the following language: “Before you can consider such evidence for any purpose, you must find that the trails-