People v. Baldwin

By an information filed January 4, 1961, both defendants were charged in Count I with a violation of section 26104, subdivision (a), Corporations Code (selling a security without a permit) and in Counts III and IV with grand theft; defendant H. Gael Baldwin alone was charged with grand theft in Count II. After a trial by jury defendant H. Gael Baldwin (hereinafter referred to as “Gael”) was found guilty on all four counts and defendant Catalina Baldwin (hereinafter referred to as “Catalina”) was found guilty on Counts III and IV (i.e., found not guilty on Count I). Each defendant’s motion for new trial was denied and each was sentenced to the state prison, the sentences on the several counts to run concurrently. Defendants appeal from the judgments of conviction.

A résumé of the facts set forth in the light most favorable to supporting the judgments is as follows:

Catalina stated further to Mrs. Aguilar that defendants were going to start a chain of hotels and they would need the services of Mr. Aguilar as manager. Also, that Mrs. Aguilar should go to Peru to assist defendants in trying to get artists and professors to start a cultural center in Lima.

After these conversations Mrs. Aguilar wrote Catalina a brief letter stating that, although her husband was temporarily unemployed, he had just sold some property, the proceeds of which they were to live on during the summer and, although they would be desperately up against it at the end of the summer, if the defendants wished to live on the Aguilar's resources for the summer they offered $500 to the defendants.

Catalina had separate conversations with Mr. Aguilar in which she stated that she was very interested in Mr. Aguilar’s efforts at selling the Harvard Classics; that she would like to buy two sets as soon as possible. Mr. Aguilar told her that this would amount to some $750, and Catalina replied that this meant nothing because they were going to be rich; that in Peru they had been bidding for a big contract against a ruthless rich man; that the defendants had been honest and had not offered bribes. That defendants had sold everything they had in order to get the money needed to secure the

Gael stated to Mr. Aguilar that defendants were planning to construct a city outside of Lima and set up a string of hotels all over South America; that defendants were in possession of a unique Geiger counter that discovered uranium in their mine from a distance of 5 miles and that it was almost foolproof in the discovery of oil; that defendants wanted the Aguilars to come to Peru with them and that they wanted to make the Aguilars millionaires.

Catalina further told Mr. Aguilar that defendants were not selling stock in the company that they were setting up for the uranium mine; that they had been receiving phone calls three times a week from Mr. McCone urging them to get started on the mine because the uranium was needed; that Howard Hughes of Hughes Aircraft was begging to loan them $200,000 for capitalization of the mine as working capital. Catalina then asked Mr. Aguilar if instead the Aguilars could loan them $10,000; that if the Aguilars could, then defendants could give Mrs. Aguilar a title as a consultant in the corporation from which she could draw $500 a month for life or at least for five years; that defendants could repay the Aguilars the loan right away. Mr. Aguilar informed Catalina that Mrs. Aguilar owned some securities but that he would never ask her for her stocks and bonds. Catalina then replied that she would ask Mrs. Aguilar.

The Aguilars made two payments to defendants, one by check drawn on the Aguilars ’ account in the Security First National Bank in the sum of $2,500, and the other in the form of a check of the B. F. Hutton Company for $3,500, payable to Mrs. Aguilar, and endorsed by her. Both of these transactions took place on June 30, 1959.

After the Aguilars had given the $6,000 to defendants they received back from the defendants, on or about July 16 or 17, $500 and then on July 21 another cheek for $1,000. These two checks were delivered by Gael and Mr. Aguilar told him that the Aguilars had to have the rest of their money. Gael replied that the money was in Neiv York, that they actually had it in New York and would pay it. However, the only money received on the $6,000 loan was the $1,500 and the defendants were not accessible again to the Aguilars after July 21.

In exchange for the $6,000 loan, Gael made out a check for $6,500, payable to Mrs. Aguilar and the check was postdated to July 15, 1959. The Aguilars attempted to cash this check on two occasions but it was rejected each time.

After defendants’ check was rejected on approximately July 17, 1959, Mr. Aguilar stated that they (Aguilars) tried several times to contact defendants and finally Mr. Aguilar saw Gael going into his hotel on about July 23. Gael stated that he was leaving town. Mr. Aguilar told Gael that he (Aguilar) knew that Gael was a fraud and that the police

Mr. Bhodimer, the owner of the “mine,” was very old and there was an affidavit from doctors that it would be fatal for him to come to court. A cashier’s cheek dated June 30, 1959, endorsed by Mr. Bhodimer under the endorsement of Gael was introduced in evidence. The record shows that the extension of the option was in the form of a letter dated June 25, 1959, stating that the option of October 1, 1958, was being extended effective on the payment to Mr. Bhodimer of $5,000. Mr. Kuhfus testified that his option ended July 31, 1959.

A representative of E. F. Hutton Company testified that a loan was made to Mrs. Aguilar on June 30, 1959, in the sum of $3,400 [Mrs. Aguilar used her stock as security]. A bank representative testified that Gael had an account in the Security Bank from April 1958 to August 1958 and during those five months there was one deposit ticket for $2,000, but the bank had to deposit $14.27 in order to close the account. A representative of the State Division of Corporations testified that there was no record of a permit for defendants to sell stock, nor any permit of any kind for the sale of Peruvian Corporation stock.

Carlton Clark, a detective sergeant with the Los Angeles Police Department extradited defendants from New York and testified that Gael stated to him that he was in the process of forming a Peruvian corporation.

Gael testified and admitted that Besources, Incorporated,

The trial judge sximmed matters up when, just prior to the imposition of sentence he stated in pertinent part:

“The court has weighed and balanced all the considerations which occurred to the court, in an attempt to determine a course of action in this case.

“... [T]his is not the case of an individual aberration, a single aberration. This is a series of takings of money, each of which amounted to grand theft, and in substantial sums. We have a shocking difference between the personal family histories of these defendants and their careers and their procedure in attempting to promote this wild scheme.

“I don’t see how anybody eoxild ever have reposed in these letters and contracts the confidence which they said they did. I think the case of the Aguilars is particularly reprehensible. To take that money, even borrow it, upon these representations, from a family with so many children and such limited finances, and to recognize that they must have struggled in very difficult circumstances to accumulate that amount of money, is, I think, an indication of the characteristics of this project all the way through.

“To the court, it seems to be thoroughly saturated with fraud, and it is the essence of what is known as a ‘confidence game, ’ which relies upon the confidence which the potential victims have in the people who defraud them, because of the fact that their backgrounds are good, and their connections seem to be on an elegant plane, and other matters which appeal to the non-thinking ‘investor’ who turns his money loose in such a wild, fantastic and amazing scheme as this. It is almost on the verge of psychopathy, it seems to the court. ...”

Defendants’ arguments on this appeal fall into two categories—purported misconduct (a) on the part of the trial court and (b) on the part of the district attorney.

In addition to the fact that none of the contentions has merit, defendants failed to make any objections at the time of trial and the rule is well established that defendants cannot raise the issue for the first time on appeal. (See People v. Corrigan, 48 Cal.2d 551 [ 310 P.2d 953 ]; People v. Pedesclaux, 216 Cal.App.2d 1 [ 30 Cal.Rptr. 574 ]; People v. Mathews, 205 Cal.App.2d 543 [ 23 Cal.Rptr. 111 ]; People v. Johnson, 203 Cal.App.2d 624 [ 21 Cal.Rptr. 650 ]; People v. Posada, 198 Cal.App.2d 535 [ 17 Cal.Rptr. 858 ]; People v. Jones, 191 Cal.App.2d 478 [ 12 Cal.Rptr. 777 ]; People v. Miller, 185 Cal.App.2d 59 [ 8 Cal.Rptr. 91 ]; People v. York, 174 Cal.App.2d 305 [ 344 P.2d 811 ].)

It is well established that a trial judge may properly engage in reasonable examination of witnesses during the course of a trial. (People v. Rigney, 55 Cal.2d 236 [ 10 Cal.Rptr. 625 , 359 P.2d 23 ]; People v. Mathews, supra, 205 Cal.App.2d 543 [ 23 Cal.Rptr. 111 ].) What is stated at page 241 of People v. Rigney, supra, is apposite as follows:

“A trial judge may examine witnesses to elicit or clarify testimony (People v. Corrigan, 48 Cal.2d 551 , 555 [ 310 P.2d 953 ]; People v. Ottey, 5 Cal.2d 714 , 721 [ 56 P.2d 193 ]; People v. Carlin, 178 Cal.App.2d 705 , 714-715 [ 3 Cal.Rptr. 301 ]; People v. Montgomery, 47 Cal.App.2d 1 , 18 [ 117 P.2d 437 ].) Indeed, `it is the right and duty of a judge to conduct a trial in such a manner that the truth will be established in accordance with the rules of evidence. ’ (People v. Corrigan, supra, at page 559.) The trial judge, however, must not become an advocate for either party or under the guise of examining witnesses comment on the evidence or east aspersions or ridicule on a witness. (People v. Campbell, 162 Cal.App.2d 776 , 787 [ 329 P.2d 82 ]; People v. Lancellotti, 147 Cal.App.2d 723 , 731 [ 305 P.2d 926 ]; People v. Huff, 134 Cal.App.2d 182 , 187-188 [ 285 P.2d 17 ]; People v. Deacon, 117 Cal.App.2d 206 , 209 [ 255 P.2d 98 ].) ”

No useful purpose would be served by reproducing portions of the reporter’s transcript. An examination of the record

Defendants’ last contention is that the district attorney was guilty of prejudicial misconduct by “permitting” a witness to testify about Gael's “record.”

This contention is likewise totally without merit. First of all, the record does not support the assertion that the district attorney “permitted” a witness to testify about Gael’s “record.” The reporter’s transcript discloses the following which occurred during the district attorney’s direct examination of Mr. Aguilar:

‘ ‘ Q. Did you continue trying to contact the Baldwins from that date on ?

“A. Yes.

‘ ‘ Q. Will you tell us the things that you did in order to try to locate them ?

“A. I called them up, and they weren’t there, ostensibly, but I knew they were.

“Q. Just tell us what you did, sir. You were not able to locate them ?

“A. That’s right.

“Q. You called the hotel ?

"Q. On several occasions ?

“Q. In August of 1959 did you attempt to locate the Baldwins?

‘ ‘ Q. Did you write letters, or call ?

“A. Yes. There was no point, because they were out of town.

“Q. All right. After you received information that they were out of town, did you make some attempt to locate them, or get into contact with them ?

“A. No.

“Q. When was the next time you saw the Baldwins after July of 1959 ?

“A. I saw them on the day they left, which was, I think, the 22nd or 23rd.

“Q. Of July?

“A. I saw Mr. Baldwin, and I spoke to Mrs. Baldwin.

“Q. Did Mrs. Baldwin tell you she was leaving town at that time ?

“A. No, she did not.

“Q. Did Mr. Baldwin tell you he was leaving town at that time?

“A. Yes, he did.

“Q. What, if anything, did he say?

“A. I saw him going into the hotel, so I stopped him, and I told him I wanted to talk to him. I said, ‘I want to talk to you.’ And I told him, ‘I know the whole situation now. I know that you are a fraud. You are phonies all the way through. The police have told me that they have a record on you going back three years.’

‘ ‘ Q. What, if anything, did Mr. Baldwin say ?

“A. He was very indignant, and said, ‘Why, I’m going to sue anybody who has anything—who says anything of the sort.’ ” (Italics added.)

It is manifest from the above that Mr. Aguilar’s answer to the district attorney’s question was not responsive to that question. There is nothing to indicate that the district attorney “permitted” the answer.

In any event, the record is also clear that defendants’ attorney did not object or move to strike the answer or have the jury admonished to disregard it. Where there is no objection, exception or assignment of error made in the trial court, the claim of misconduct of the prosecuting attorney cannot be raised for the first time on appeal. (People v. Volk, 221 Cal.App.2d 291 [ 34 Cal.Rptr. 351 , 355]; People v. Garland, 215 Cal.App.2d 582 [ 30 Cal.Rptr. 437 ]; People v. Crossley, 213 Cal.App.2d 561 [ 28 Cal.Rptr. 922 ]; People v. Roberts, 213 Cal.App.2d 387 [ 28 Cal.Rptr. 839 ]; People v. Eisenberg, 213 Cal.App.2d 121 [ 28 Cal.Rptr. 583 ]; People v. Stadnick, 207 Cal.App.2d 775 , 779 [ 25 Cal.Rptr. 35 ]; People v. Klavon, 202 Cal.App.2d 765 , 768 [ 21 Cal.Rptr. 99 ].) The present case was not a close ease. After discharging competent counsel which this court had appointed to aid and assist appellants in the presentation of their appeal, appellants sought and received permission to file a so-called supplemental brief [i.e. a supplement to the brief filed by appointed counsel who was discharged by appellants] in their own behalf. The supplement is a large document, approximately 3% inches in thickness, unindexed and unpaged, wherein appellants in effect reargue the factual matters which were presented to the trial court. Such law

There is no reversible or prejudicial error in the record. The evidence of guilt is clear.

The judgments are and each of them is affirmed.

Wood, P. J., and Lillie, J., concurred.

Appellants’ petition for a hearing by the Supreme Court was denied February 19, 1964.