Opinion
Page __
__ Cal.App.2d __ 310 P.2d 94 PEOPLE of the State of California, Plaintiff and Respondent, v. Bernard P. CALHOUN, Defendant and Appellant. Cr. 1099. California Court of Appeals, Fourth District April 24, 1957Rehearing Denied May 20, 1957.
Hearing Granted June 19, 1957.
[310 P.2d 95] John W. Preston, Los Angeles, William P. Mahedy, San Diego, Charles H. Carr, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., James Don Keller, Dist. Atty., Jack R. Levitt, Deputy Dist. Atty., San Diego, for respondent.
BARNARD, Presiding Justice.
The defendant, with William G. Bonelli and certain John Does, were charged in an indictment with conspiring to violate section 5002.5 of the Elections Code, it being alleged that they, together with ten unindicted co-conspirators, conspired to commit the crimes of soliciting, asking and receiving political contributions from persons licensed to see liquor by the Board of Equalization, such contributions being for use in campaigns for the reelection of Bonelli as a member of that Board. In second and third counts they were charged with conspiring to do acts injurious to public morals and to pervert and obstruct [310 P.2d 96] justice, and with having agreed to prepare false papers and records for fraudulent purposes for use in proceedings and inquiries authorized by law, in violation of section 182, subd. 5 of the Penal Code.
For well known reasons Mr. Bonelli was not available for the trial, and the trial proceeded as to this defendant alone. A jury found him guilty on all three counts, his motion for a new trial and his application for probation were denied, and judgment was entered providing for imprisonment and fines. He has appealed from the judgment and from the order denying his motion for a new trial.
On a former application for a writ of prohibition, Calhoun v. Superior Court, 46 Cal.2d 18, 291 P.2d 474, the Supreme Court, in reviewing the evidence before the grand jury, briefly outlined the pattern of the plan which was followed in various counties in soliciting, receiving and using campaign contributions from liquor licensees in connection with the 1950 and 1954 campaigns of Bonelli for reelection to the Board of Equalization. Among other things, it was pointed out that checks for contributions from retail liquor licensees were made payable to the National Democratic Club, the Aldine Printing Company, the Woolever Press, and a fictitious company known as the Allid Printing Company; that Calhoun was general counsel and 'Public Relations Man' for the Southern California Spirits Foundation, an association composed of wholesale liquor distributors whose members paid regular dues which were supposed to be used for certain purposes only; that another fund existed known as the 'Research and Public Relations Fund' to which the Spirits Foundation was the largest contributor but which contained other contributions arranged for by Calhoun; that as a practical matter Calhoun exercised control over the expenditure of the money in this fund; that on his instructions large amounts were drawn on this fund by checks payable to cash, and other checks were drawn in payment of bills presented by the above-named printing companies and an advertising company for expenses in connection with the Bonelli campaign; that these funds and checks were manipulated in various ways; and that the evidence indicated that a check payable to Calhoun, as trustee, was used to replace several small checks made payable to Aldine and signed by retail liquor licensees. The court there summarized the testimony of several of the witnesses.
It would serve no useful purpose to repeat here the factual matters summarized in the opinion in the prohibition case. The same facts appear in the record here, but more in detail and with additional evidence. At the trial 59 witnesses testified for the prosecution, and 17 for the defendant. The reporter's transcript contains 2498 pages, including the testimony of the defendant which takes up 370 pages. His explanations of his various acts in handling these funds and what he did in connection with Bonelli's campaigns are hardly consistent with his innocence in connection with these charges, and apparently his explanations were no more convincing to the jury than they appear to be from reading the record. He spent many thousands of dollars from funds of the Spirits Foundation and Research Fund without direct authorization for the particular expenditures, the checks being made to the same printers and advertisers as were the checks of the retail licensees. None of them showed on their face that they were for Bonelli's campaign, and the way many checks were issued, receipts handled, and entries made on the records kept seems to have been designed to conceal that fact. Calhoun ordered a large amount of the printing for Bonelli's campaign, conferred with Bonelli and with the printers, and cashed certain checks and had others issued in their place before paying some of these bills. In many instances individuals and firms were told to send checks to these printing companies, and later received invoices for printing which they had never ordered or received. Several witnesses testified that they were told to do this by Calhoun. He told one Casteel, who offered to make a contribution [310 P.2d 97] to Bonelli's 1954 campaign, to make the check payable to the National Democratic Club. When Casteel objected, Calhoun said to make it to the Aldine Printing Company and that 'Well will see that you get a bill for printing or something of that sort and that will take care of it.' One member of the Spirits Foundation testified that he asked Calhoun at several meetings where the funds of the Foundation were being spent and was told by several people, and possibly by Calhoun, that he 'probably better not know.' There is a great deal of evidence that checks from liquor licensees, which were solicited, were solicited, were payable to these printing firms which were doing large amounts of printing for the Bonelli campaigns, and that Calhoun took a large part in the operations in that connection which were carried on for the purpose of securing the reelection of Bonelli. Many inferences reasonably to be drawn from the evidence fully support the conclusion that he was an active participant in a conspiracy carried on for that purpose. There was evidence that in four instances Calhoun agreed to help hotels in getting suspensions of their licenses reduced or set aside, as a result of which contributions for Bonelli's campaigns were received. Calhoun was charged not only with soliciting but with receiving such contributions, and the evidence shows that, aside from the dues paid into the Spirits Foundation, he received political contributions from six other concerns and individuals which were used for the benefit of the Bonelli campaign. He admitted telling Casteel how to make a contribution to Bonelli, and the evidence indicates that he had good reasons for refusing to answer 47 questions when he appeared before the grand jury. While he insisted that he had used the dues paid in by the members of the Spirits Foundation strictly in accordance with the authorization and desires of the members of that organization, several members testified that they did not know how he was using this money and that they would not have approved of its being used in that way. He testified on the stand that in 1954 he spent more time with Bonelli than in any prior campaign, primarily because of Proposition No. 3; that '* * * it is almost impossible to segregate the two campaigns'; that 'The bills that I paid were bills he (Bonelli) always gave to me and asked if I could take care of. That was the net result. I paid those bills directly to the parties who had sent in the bills and paid them by check'; that 'I think all of the payments that went for Bonelli's bills came out of the Research and Public Relations Fund.' When asked why he had paid this money into the Bonelli campaign he replied that he did it because the members of the association had to keep Bonelli on their side; and that 'They had to conduct their business under Mr. Bonelli's direction and the liquor business is very highly regulated and suspensions can be had very easily for violations, intentional or otherwise, many times unintentional.' When asked why he had claimed his privilege and refused to answer certain questions before the grand jury, he replied: 'Because I thought it would lead into a series of questions about expenditures for Bonelli and I had been advised prior to going before the grand jury not to answer those questions.'
Although not separately stated or argued, the appellant's basic contentions are that he was the mere agent of the Spirits Foundation, and that his acts and conduct in receiving and handling funds and paying bills in connection with Bonelli's campaigns were solely those of such an agent; that these funds came from regular dues paid by the members, and were in no way solicited; and that if any conspiracy existed the evidence is not sufficient to connect him with the acts and conduct of Bonelli and other actors in any such conspiracy. As pointed out in Calhoun v. Superior Court, supra, the evidence there referred to was sufficient to justify inferences contrary to these contentions. While the court was there concerned only with whether the evidence was sufficient to show probable cause the evidence here, with the inferences which may [310 P.2d 98] reasonably be drawn therefrom, is amply sufficient to sustain the implied finding that in many, or most, of his activities in connection with these matters the appellant was not acting merely as the agent of the Spirits Foundation, and that he was a member of and took part in a conspiracy to solicit and receive money from liquor licensees for use in the Bonelli campaigns. Many of the specific points raised by the appellant are largely based upon the contentions that the evidence was not sufficient to show the existence of any conspiracy, or if one existed that he had any connection with it.
The appellant first contends that the court erred in telling the jury that although Bonelli was not present at the trial the jury would have to try each and all acts committed by Bonelli as though he were present and being tried. It is argued that the court thereby implied that if Bonelli was guilty of conspiring with any of the named but unindicted conspirators other than Calhoun, then Calhoun would also be guilty; that Bonelli could be guilty and Calhoun innocent of the crime charged, and it was reversible error 'to indissolubly connect them together'; and that there was no evidence reasonably tending to show that there was conspiracy between Bonelli and Calhoun.
The judge told the jury, in effect, that there would be no change in the testimony because of the absence of Mr. Bonelli; that the case would have to be tried on the same basis as if Bonelli were present and represented by counsel; and that '* * * you have to try each and every act that he committed, if there was a conspiracy here, try each and every act within the conspiracy, if one existed, as though he were sitting down there'. (Emphasis added.) Where the existence of a conspiracy is established evidence of the acts and declarations of the conspirators in furtherance of the conspiracy is admissible, and the judge in no way intimated that a conspiracy did exist or that any act was done within the scope of any conspiracy. In a prosecution for conspiracy it is not essential to the conviction of a co-conspirator that another or all other co-conspirators shall be tried and convicted. People v. Gilbert, 26 Cal.App.2d 1, 78 P.2d 770. Where the conspirators are not jointly tried, the admissibility of evidence as to the conspiracy may well be the same and the co-conspirator be liable for the acts of the other conspirators done in furtherance of the conspiracy. No error appears in this connection.
It is contended that the court erred in admitting in evidence hundreds of pages of testimony relating to matters occurring before the formation of the alleged conspiracy, and in the absence of any evidence that any conspiracy existed or that defendant was a member thereof if one existed. It is argued that the court admitted the testimony of the first 20 witnesses without any showing that a conspiracy existed or that the defendant was a member thereof, and that 'the great bulk of the testimony of the other thirty-nine witnesses for the State also failed to show that a conspiracy existed between Bonelli and defendant to solicit, ask and recelive campaign contributions for Bonelli from liquor licensees of the Board of Equalization.' The record does not bear out the contention that 20 witnesses were allowed to testify before any evidence was introduced to establish the existence of a conspiracy. The testimony of the first witness, Al Tossas, was sufficient to establish, prima facie, the conspiracy charged in the first count. Count 2 was established by the second witness called, Mary Forsythe, and Count 3 by the third witness, Raymond McCullough. It was not necessary to connect the defendant with the conspiracy at the beginning of the evidence, or before any other evidence of a conspiracy was received. As the defendant concedes, the court had a reasonable discretion as to the order of proof and there is nothing to indicate that this discretion was abused. It is well settled that a conspiracy may be established by direct evidence or by circumstantial evidence, or a combination of both; that it need not be shown that the parties entered into a definite agreement but is sufficient if they [310 P.2d 99] positively or tacitly come to a mutual understanding to accomplish the act and unlawful design; that the evidence may cover many transactions, extend over a long period of time, and show acts which occurred some time before the alleged formation of the conspiracy, so long as the facts shown have some bearing or some tendency to prove the ultimate facts in issue; and that any competent evidence which tends to prove the existence of the conspiracy or any competent acts or declarations tending to prove a common design, is admissible. People v. Stevens, 78 Cal.App. 395, 248 P. 696; People v. Lyon, 135 Cal.App.2d 558, 288 P.2d 57; People v. Steccone, 36 Cal.2d 234, 223 P.2d 17; People v. Chait, 69 Cal.App.2d 503, 159 P.2d 445; People v. Malone, 20 Cal.App.2d 1, 66 P.2d 216. No particular evidence is pointed out in this connection as being inadmissible and the contention that all of this evidence was inadmissible for the reasons stated is without merit.
It is contended that the court erred in admitting over objection the testimony given by the defendant before the 1954 grand jury. It is argued that the established rule that a person cannot be compelled to be a witness against himself in a criminal case was thus violated; that section 1323.5 of the Penal Code provides that an accused person shall at his own request, but not otherwise, be deemed a competent witness; that the defendant was subpoenaed before the grand jury and therefore was not a voluntary witness and did not testify at his own request; and that his testimony before the grand jury was used at the trial merely to show that he had refused to answer some 47 questions before the grand jury on the ground that his answers might tend to incriminate him. People v. Talle, 111 Cal.App.2d 650, 245 P.2d 633 is cited in support of this contention.
The defendant was subpoenaed before the grand jury but he testified there voluntarily. he took an oath to tell the truth but refused to take an oath of secrecy and was not required to do so. He was told at the beginning that he had the right to refuse to answer any or all questions and, after stating that he understood his rights in the matter, he proceeded to testify. He answered some sixty questions before claiming any privilege, and a great many questions thereafter. His testimony before the grand jury takes up 114 pages of the transcript. Except for a few pages in which he refused to answer certain questions on the ground that this might tend to incriminate him, he disclosed a willingness to answer all questions about his acts, and went into a great deal of detail in explaining his transactions and his handling of funds and checks in connection with the matters under investigation. When asked whether he felt he had not done anything wrong he replied: 'I still am going to invoke the constitutional privilege on any question dealing with Mr. Bonelli or his campaign. Now, that's my position.' He also expressed a willingness to answer questions concerning certain checks with the understanding that this did not tie in with Mr. Bonelli. The defendant was a lawyer and with full knowledge of his rights willingly testified before the grand jury. His willingness to testify when he knew it was not necessary, and his evident desire to fully explain, at that time and place what he had done with the funds under his control and all of his acts in connection with the matters under investigation, with the exception noted, sufficiently disclose that he was testifying at his own request, within the meaning of the statute. He later testified at the trial giving in great detail his version of all of his acts and conduct in connection with these same matters. Having voluntarily testified at great length, with full knowledge of his rights, he waived the right to claim, under section 1323.5 of the Penal Code, that he had not been a competent witness before the grand jury. While his testimony before the grand jury might better have been used after he testified at the trial by way of impeachment, the testimony in question was material, if not as an admission at least as an accusatory statement, with the defendant's reaction thereto. While some of the facts here are [310 P.2d 100] slightly different, it must be held that such cases as People v. Byers, 5 Cal.2d 676, 55 P.2d 1177, People v. Kynette, 15 Cal.2d 731, 104 P.2d 794, and People v. Walsh, 47 Cal.2d 36, 301 P.2d 247, are applicable here, rather than People v. Talle, supra, and that no reversible error appears in this connection.
It is contended that the court erred in permitting one Pettigrew to testify that Stanley, the manager of the Ambassador Hotel in Los Angeles, told him that he had arranged with the defendant to fix the hotel's suspension of its liquor licenses. It is argued that this was hearsay and the court emphasized the error by telling the jury that Stanley was one of the conspirators in this case, if a conspiracy existed. While this was hearsay, no prejudice appears since other witnesses testified directly as to what had occurred and the defendant admitted on the stand that he had intimated to Stanley that a campaign contribution 'might be helpful to his case', and that 'I just said it (giving money on Bonelli's behalf) might be helpful.'
It is contended that the court erred in allowing one Kennedy to testify that either Bonelli or the defendant owed him a balance of $13,692.00 for billboard advertising in the 1954 election. It is argued that Kennedy testified that he had billed this amount to the Research Fund, which it had not paid; that the defendant himself owed nothing to Kennedy, and if he did it was not material to the matter of the conspiracy; and that one purpose of bringing in this testimony was 'to pillory defendant before the jury as a deadbeat.' Kennedy testified that Calhoun had ordered him to do this work and to bill it to the Research Fund, and there was evidence that this work was for the Bonelli compaign and not for Proposition No. 3. There was a great deal of evidence on this matter, including a long explanation of it by defendant while on the stand. It was an incidental part of the entire transaction and it cannot reasonably be supposed to have affected the result.
It is contended that the court erred in admitting the testimony of one Tomerlin concerning payment of attorney's fees to the defendant, and concerning his payment of $4,500 to his employee, Dennis Moore; and in admitting evidence that Calhoun paid $3,000 from the funds of the Spirits Foundation to Leonard Wilson as attorney's fees in defending Charles E. Berry in a prior action. It is argued with respect to the Tomerlin matters that this testimony was hearsay, that it is not shown to have any connection with the offenses charged in the indictment, and that there was no evidence of what Moore did with the money. With respect to the Berry matter it is argued that the question was not relevant to any issue in this case. The Tomerlin matter was in connection with the Wilton Hotel, and was one of the four hotel matters above mentioned. There was evidence that Tomerlin gave the money to Moore upon instructions from Calhoun in connection with an effort to have the suspension of a liquor license revoked, and that no legal work or appearance was made by Calhoun. Calhoun had told Tomerlin that someone would contact him for certain money which was to go to Bonelli, and it was material although it was not directly shown exactly where the money went. The Berry matter, while not very material, was one of a long list of things done by the various conspirators.
It is contended that the court erred in admitting 'hundreds of pages of testimony concerning the deposits of cash and checks by' one Snyder in the bank account of the National Democratic Club, and disbursements from said fund by Snyder; in admitting the testimony of Al Weigel and other witnesses concerning deposits in and checks drawn upon the Research and Public Relations Fund; and in admitting scores of checks, deposit slips, invoices and other documents without showing that the defendant was connected therewith, and without first establishing prima facie the existence of a conspiracy and that the defendant was as member thereof. These contentions are based on the basic claims that no conspiracy was established, and that it was in nowise shown that the defendant took any part [310 P.2d 101] in any conspiracy. These basic contentions are not supported by the record, and these various matters were properly admitted under the well established rules governing the receipt of evidence for the purpose of establishing a conspiracy.
Finally, it is contended that the defendant was not given a fair and impartial trial because of certain statements made by the trial judge, and because the district attorney was guilty of prejudicial misconduct in certain respects. Complaint is made that the trial judge improperly commented on the defendant's appearances as attorney in cases before the Board of Equalization by saying that he (the trial judge) had practiced law for 25 years and had never appeared before the Board; that the judge asked the defendant why he did not draw checks on these funds directly to Mr. Bonelli; that he compared the defendant to a real estate broker who represents both parties and is the agent of both; and that in a long talk before giving his instructions he made many inaccurate statements which were likely to mislead the jury. In this latter contention it is stated that the court said 'During this proceeding I am always right; I am never wrong'; that in referring to the testimony of Mr. Kennedy he said 'He is in the hole about $13,000. Well, he was unhappy and you can't blame him'; that he dragged in an illustration based on the payment of a bribe to a mythical judge; that he stated that assuming there was a conspiracy over a period of many years you could bring in evidence to show what was done during all of those years; that he told the jury that if there was a conspiracy Mr. Stanley was one of the co-conspirators; that he used an illustration in one of his statements which was only a slight variation of a chart used by the district attorney; that he told the jury that two sections of the Elections Code were involved in this case; and that he told the jury that this case was to be tried as though the alleged co-conspirator Mr. Bonelli was present, and that 'you have to try each and every act that he committed.' It is argued that the judge thus implied that any lawyer that practiced before the Board must be a 'shyster'; that he practically told the jury that the defendant was the agent of the contributors to Bonelli's campaigns and also was the agent of Bonelli; that he thus assumed facts which were not proven, and virtually compelled the jury to infer that a conspiracy existed and that defendant and Stanley were members thereof; and that these statements, in effect, amounted to charging the jury as to matters of fact, and constituted an invasion of the province of the jury.
While some of these statements were unnecessary and had better been left unsaid, when they are considered in their context neither error nor prejudice appears. Immediately before making the first statement the court stated that every lawyer has the right to appear before any court or any administrative body, and that 'the purpose of asking the question was to determine whether or not these people that were mentioned actually did appear.' When the defendant was testifying about bills that Bonelli had asked him to pay the court asked 'Why didn't you give him the check?' and the defendant replied that he did not know why he didn't, but that he paid it direct to the party that presented the bill. In talking about an agency the court merely stated, without reference to the defendant, that an agency can work two ways and gave an illustration. Just prior to talking about the agency the court had told the jurors that he was not going to tell them what the evidence was, and he repeatedly told them that they were the sole judge of the evidence, and that if he made any comments on the evidence it should be disregarded. The statement that he was always right was a part of a longer statement explaining to the jury that it must take the law from the court, and that it must be taken that he was correct as to what the law is even though it should later turn out that he was wrong. His statement about Mr. Kennedy being in the hole $13,000 was made with respect to an argument that the liquor licensees were satisfied and did not [310 P.2d 102] ask for their money back. The jury was merely told that the fact that the people who made the contributions were satisfied was not to be considered in this case. His statement about a mythical judge being bribed was used in illustrating why the fact that both parties to an illegal act were satisfied would not be a defense to a criminal charge. The judge did not assume or state as a fact that a conspiracy existed. His statement that Stanley was a co-conspirator, if a conspiracy existed, was justified by the evidence and the jury was correctly told that a number of other unindicted persons were accomplices if a conspiracy did exist. The court did not state that two sections of the Elections Code were involved. He first said that the defendant was charged under section 5002.6, and when his attention was called to the fact that the charge was based upon section 5002.5, he told the jury that he had gotten the two sections mixed up. His statement that this did not make any difference was based on his instruction that the defendant was charged with conspiracy and not with a substantive crime.
With respect to the contention that the district attorney was guilty of prejudicial misconduct, it is claimed that the district attorney said in his opening statement that he would prove certain things which he knew he would not be able to prove, and which he did not prove; that in referring to the defendant's refusal to answer questions before the grand jury the district attorney knew that such evidence was improper because the defendant had not voluntarily testified there; that he improperly used a chart containing inaccurate figures which he knew could not be proven to be true; and that he offered hundreds of pages of testimony and scores of exhibits which were irrelevant to any issue in the case or were pure hearsay. It is argued that this was reversible error, citing People v. Talle, supra. The facts of the Talle case were entirely different from those in the instant case and that case is not controlling here. The things which the district attorney said he intended to prove were proven, most of the evidence claimed to be inadmissible was admissible, and there was nothing to show that the district attorney knew that any evidence he offered was inadmissible, or that he was guilty of prejudicial misconduct. There is nothing in any of the matters here complained of, when considered with the context and with the surrounding circumstances, which discloses prejudicial misconduct or which indicates that the defendant did not receive a fair trial.
There was ample evidence of the existence of a conspiracy to solicit and receive contributions from liquor licensees for use in the Bonelli campaigns. There was strong evidence that the appellant took an active part in such transactions, including some direct evidence and a large amount of circumstantial evidence, that cannot reasonably be reconciled with his innocence. While some of the funds he used in these campaigns may have been legally obtained and used, the evidence abundantly justifies many inferences and inferences most reasonably to be drawn leading to the inevitable conclusion that he also took an active part in obtaining and using other contributions from liquor licensees for the same purpose; and that he manipulated these contributions in various ways through the use of false receipts, invoices for goods never ordered or received, and by switching checks and funds around to accomplish that purpose while concealing the source of the funds.
While some minor errors may appear, as is not unusual in long cases of this nature, these are not sufficient to justify a reversal and it cannot reasonably be said that the appellant did not have a fair trial. We are not of the opinion that any errors which may appear resulted in a miscarriage of justice, within the meaning and intent of Article VI, Section 4 1/2 of the Constitution. It does not appear to us as reasonably probable that a result more favorable to the appellant would have been reached in the absence of any errors which may here appear.
[310 P.2d 103] People v. Watson, 46 Cal.2d 818, 299 P.2d 243.
The judgment and order appealed from are affirmed.
GRIFFIN and MUSSELL, JJ., concur.