Opinion
Cr. 3504
11-19-1958
The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank CAMODEGA, Defendant and Appellant. *
Robert H. Kroninger, Oakland, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Frank CAMODEGA, Defendant and Appellant. *
Nov. 19, 1958.
Hearing Granted Jan. 14, 1959.
Robert H. Kroninger, Oakland, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.
MARTINELLI, Justice pro tem.
Defendant appeals from a judgment of conviction on two counts, attempt to commit grand theft and attempt to commit extortion.
On August 30, 1957, defendant was charged by information with the felony, attempt to commit grand theft. A jury trial was waived and during the trial an amended information was filed charging in a second count the attempted extortion. Defendant was found guilty on both counts and was sentenced to serve concurrent terms in the state prison.
The evidence shows that William Murphy, the complaining witness, purchased a bar from one Joseph Vetromile in January 1957. Monthly payments on the purchase price were made to appellant who issued receipts signed by Vetromile. (Unknown to Murphy his debt had been assigned to appellant.)
On approximately June 15, 1957, Murphy discussed with appellant the possibility of removing from the contract of sale and from the beer and wine license the name of Murphy's common-law wife. Appellant stated that to accomplish this would require a 'fix' but that the man who really owned the bar had powerful friends in Sacramento and it could be accomplished if Murphy would pay $720. Murphy was told by appellant that there were three violations against the bar reported in Sacramento to the State Board of Equalization. Appellant indicated that the real owner of the bar could get the license cleared for the $720.
Actually there were no violations reported but Murphy believed appellant and attempted to raise the money requested. When he was unable to raise the money, Murphy contacted his lawyer who contacted the district attorney and the State Board of Equalization.
It had been arranged that appellant would go to Murphy's apartment on the evening of June 18 to collect the $720. Their conversation at the meeting was recorded by police officers. Appellant stated that the old man or 'John' had paid the $720 and that if he was not reimbursed, Murphy would be out of business. He further stated that, 'When you break your word with him, Bill, you might as well fold that * * * joint.' When the conversation was completed, appellant was placed under arrest.
Subsequently appellant gave several statements to the police in which he said that he had tried to get the $720 from Murphy by falsely representing that he could get the alleged violations 'fixed.' He admitted that the money was to be for his own use.
At the trial appellant told a different story. He stated that he had returned from the East on June 8 and was informed that Murphy had been trying to contact him. They met and Murphy expressed fear that his common-law wife had gotten him into difficulty with the liquor authorities. Appellant promised to see what he could do and on the next day was informed by one Gerald Brown, an agent of the 'State Board of Investigation' that there were several complaints against the bar. Brown stated that the matter could be fixed by a payment of between $500 and $720.
Appellant testified that he told Murphy about this and Murphy asked him to do what he could in the matter. He denied intending to take Murphy's money for his own use.
It is first contended that there was no evidence of a specific intent to commit a crime nor was there a direct ineffectual overt act done toward its commission.
Both the specific intent and the direct ineffectual overt act are necessary elements of the offense of attempt. People v. Werner, 16 Cal.2d 216, 105 P.2d 927; People v. Wallace, 78 Cal.App.2d 726, 742, 178 P.2d 771; Penal Code, § 664. Appellant's statement to the police that he made false representations and that he was trying to get $720 from Murphy for his own use afford sufficient evidence to establish specific intent.
The contention that there was no direct ineffectual act toward commission of the crime also is without merit.
In People v. Werner, 16 Cal.2d 216, 105 P.2d 927, 929, cited by appellant, one McNeil had been charged with grand theft. The defendant, Werner, approached McNeil's attorney and stated that for about $2500 he could get the chief deputy district attorney to 'kick this case out of the District Attorney's office.' Unknown to the defendant a secret arrangement was made between his wife and McNeil to meet the following day. At that meeting it was agreed that when Mrs. Werner and defendant met McNeil that evening, McNeil was to inform defendant that the money would not be available until the following day. McNeil was to 'slip' the money to Mrs. Werner in the event her husband left the room.
McNeil did not believe defendant's representation and informed the district attorney of these events. When the Werners returned to meet McNeil, much of their conversation was heard by agents of the district attorney. Werner left the room for a short period and McNeil handed to Mrs. Werner a package purportedly containing $10,000. As the Werners left McNeil's house, they were arrested. From a conviction of attempt to commit grand theft Werner appealed.
The Supreme Court held that Werner's acts were merely acts of preparation 'looking to the possible furture perpetration of the offense of grand theft.' It was held that there was no direct ineffectual act '* * * whereby, but for extraneous circumstances, he would have perpetrated the offense of grand theft.' The court was apparently influenced by the evidence of the agreement between the appellant's wife and McNeil and the fact that the money was passed to Mrs. Werner the day before the appellant was to receive it. In People v. Parrish, 87 Cal.App.2d 853, at page 857, 197 P.2d 804, at page 806, the court distinguished the Werner holding on this basis, finding it '* * * clearly inapplicable to the present case since the acts of the defendant in such case were obviously preparatory, the defendant, E. P. Werner, not intending to commit any overt acts until the day following the performance of the acts urged as overt acts.'
People v. Hickman, 31 Cal.App.2d 4, 87 P.2d 80, 82, involved an appeal from a conviction of an attempt to commit grand theft. Defendant, an attorney, had been retained by one Fauset, the prosecuting witness, to represent him in a matter involving a liquor license. After the license had been indefinitely suspended, defendant was attempting to get it restored and he informed Fauset that new difficulties had arisen and it was 'going to take more money' implying that it was necessary to bribe the members of the Board of Equalization. On the day the license was restored Fauset executed and delivered to defendant a promissory note for $1,500. The appellate court concluded that the jury undoubtedly found that Fauset did not believe defendant's representation and that he never intended to pay the installments on the note. It was found that the evidence was sufficient to support the verdict of guilty of attempt to commit grand theft.
In the instant case appellant represented that $720 was necessary to change the names on Murphy's license and to 'fix' the reported violations against this license. Murphy promised to try to obtain this amount and appellant met Murphy on June 18 for the purpose of collecting the money. The only difference between the facts here and those in the Hickman case is that, here, appellant was arrested before he received the money while in the Hickman case, the victim delivered a promissory note with no intent to make payments on that note. It would seem that the only further act necessary to consummate the crime of grand theft by appellant was the receipt of the $720.
'It is useless to undertake to reconcile the authorities on the subject of what constitutes an attempt and what is mere preparation. To a very great extent each case must stand upon its own facts. * * * Generally speaking, the attempt, as distinguished from mere preparation, consists of some direct movement toward the consummation of the intended crime after the preparations have been made. * * * It is sufficient if the overt acts reach far enough toward the accomplishment of the intended offense to amount to the commencement of its consummation.' People v. Lanzit, 70 Cal.App. 498, 504-505, 233 P. 816, 819.
Appellant's act of meeting Murphy on June 18 for the purpose of obtaining the $720 is sufficient to constitute a direct ineffectual overt act done toward the commission of grand theft.
It would appear that appellant is correct in the contention that his acts could not constitute an attempt because the prosecuting witness, Murphy, was not deceived by appellant's alleged representations.
In the Werner case, discussed above, the Supreme Court, after holding that there was no direct ineffectual act sufficient to constitute an attempt, stated: 'However, even if we were to concede, without deciding, that the record sufficiency discloses both an intent and a direct ineffectual overt acy by appellant toward the commission of a theft of the $2,500, the evidence still would not warrant his conviction either of theft or attempted theft for the reason that the prosecuting witness not only consented to the taking or attempted taking but actually delivered the property or money into the hands of the alleged offender.' 16 Cal.2d at page 223, 105 P.2d at page 932. At a later point in the opinion the court stated, 'We are satisfied that there cannot be a theft or an attempted theft of a person's property when voluntarily and without compulsion of any sort and uninfluenced by any false or fraudulent representations, he actively hands it over to the alleged thief for the purpose of apprehending him as a thief or as an attempted thief--however reprehensible the latter's intent may be--for under such circumstances the essential element of lack of consent is missing.' 16 Cal.2d at page 225, 105 P.2d at page 933.
While respondent's argument that the above-quoted portions of the Werner case constitute dicta might be supported because the Supreme Court had first decided that there was no attempt on the ground that there was no direct ineffectual overt act, this second ground could be considered an alternative ground. 'It is well settled that, where two independent reasons are given for a decision, neither one is to be considered mere dictum, since here is no more reason for calling one ground the real basis of the decision than the other.' Bank of Italy National Trust & Savings Ass'n v. Bentley, 217 Cal. 644, 650, 20 P.2d 940, 942. At any rate even if this ground is considered dicta it cannot be ignored as there would appear to be no other Supreme Court decisions discussing this specific point of law.
While the evidence shows that Murphy was deceived at the time the representations were made by appellant on June 15, the acts of appellant at that time had not yet gone beyond the point of mere preparation. The direct ineffectual overt act essential to constitute an attempt occurred when appellant met Murphy on June 18. It is apparent that at that time Murphy was no longer deceived and the necessary element of lack of consent was missing, hence the attempt aborted prior to consummation.
Appellant cites only one case which follows the statement in the Werner case that there cannot be an attempted theft when the victim voluntarily and uninfluenced by false representations actively hands over the money for the purpose of apprehending the thief. People v. Schroeder, 132 Cal.App.2d 1, 6-7, 281 P.2d 297.
There are other district courts of appeal decisions which seem to hold contrary to the Werner case holding. People v. Grossman, 28 Cal.App.2d 193, 204, 82 P.2d 76; People v. Hickman, supra, 31 Cal.App.2d 4, 87 P.2d 80; People v. Wallace, 78 Cal.App.2d 726, 741, 178 P.2d 771. The Grossman and Hickman cases were decided prior to the Werner case. In the Wallace case the court, referring to a Missouri case cited by the appellant said: 'Insofar as the Block case [State v. Block, 333 Mo. 127, 62 S.W.2d 428] may intimate that no attempt to secure money by false pretenses can be complete unless the victim relies upon or is deceived by the false pretenses, it is clearly contrary to the California law and to the overwhelming weight of authority elsewhere.' (78 Cal.App.2d 741, 178 P.2d 780, citing the Grossman case.)
An annotation in 89 A.L.R. 342, states that the general rule is that '* * * a distinction is drawn in this respect between the completed crime and the attempt to commit it; it being held that the offense of attempting to obtain money of property under false pretenses may be committed although the prosecuting witness knew that the pretenses were false, or, irrespective of whether they were true of false did not rely on them.'
Respondent attempts to distinguish the instant case on the ground that the money was not given to the appellant while in the Werner and Schroeder cases the money passed to the defendants. It is true that in the Grossman and Wallace cases the defendants were arrested before they could receive the money and in the Hickman case the defendant received a promissory note which the defendant did not intend to honor. This distinction is supported by language in the Werner case, stating that '* * * when a person knows or suspects that a crime affecting him is about to be committed, he may, without being deemed to have consented thereto, remain passive and make no effort to prevent its commission, to the end that the criminal may be apprehended, but he may not actively participate, as here, to the extent of personally delivering his property or what purports to be his property to the offender and upon a prosecution for the theft or attempted theft thereof urge that it was taken or attempted to be taken without his consent--an element essential to a conviction therefor.' (16 Cal.2d at page 224, 105 P.2d at page 932; emphasis added.)
While the cases may be distinguished factually as respondent suggests it would be the equivalent of 'hairsplitting' to make such a distinction. It is a distinction without reason. Since the Werner decision cannot be sufficiently distinguished so as to prevent its application to the instant case, it is binding on this court. The contrary rule is expressed in decisions of the district courts of appeal. It is also expressed by text writers. (Perkins on Criminal Law, pp. 489-494; Wharton's Criminal Law and Procedure, pp. 354-355; 22 Am.Jur. 488.) As stated in a leading Pennsylvania case: 'In the instant case, there was no legal impossibility of consummating the offense, only a factual impossibility--the failure to deceive the intended victim. In such a case, the requisite intent is present. The means are adapted to the end, and, the purpose of the criminal laws being to protect society against those whose intentions are to injure it or its members, no sound reason exists why an attempt such as that here made, the purpose of which was by means of pretensions which were false to obtain money, should not lead to punishment.' Commonwealth v. Johnson, 312 Pa. 140, 167 A. 344, 346, 89 A.L.R. 333.
While the above would seem to express the better, more logical rule our Supreme Court has held otherwise.
Appellant also contends that the evidence was insufficient to support a conviction of attempted extortion.
Penal Code, § 524 provides in part:
'Every person who attempts, by means of any threat, such as is specified in section 519 of this code, to extort money or other property from another is punishable * * *.'
Section 519 provides in part:
'Fear, such as will constitute extortion, may be induced by a threat, either:
'1. To do an unlawful injury to the person or property of the individual threatened or of a third person * * *.'
The evidence shows that on June 18 appellant stated to Murphy that 'the old man' had paid the $720 and that if Murphy didn't 'come up with it' he would jeopardize his business and might as well close up. He indicated that 'the old man' would not stand for not being paid.
These statements appear sufficient to constitute a threat to do unlawful injury to property and it might be possible to infer a threat of bodily harm. As stated in 21 Cal.Jur.2d, Extortion and Blackmail, § 16, pp. 602-603, 'Extortionists seldom speak out boldly and plainly; they prefer to use phrases that are mysterious and ambiguous to the world at large, and that can be understood only in the light of surrounding circumstances, and then only by the party for whom they are intended.'
The injury referred to in section 519, subdivision 1, is one for which and action for the resultant damages can be maintained, or which it merely threatened, could be enjoined in equity if the remedy at law were deemed inadequate. People v. Sanders, 188 Cal. 744, 756, 207 P. 380; People v. Schmitz, 7 Cal.App. 330, 370, 94 P. 407, 419, 15 L.R.A., N.S., 717.
Appellant here did all acts necessary to commit extortion except receive the money. At the first meeting he prepared the victim by representing that the license was in jeopardy. Then at the second meeting he informed Murphy that 'the old man' had paid the $720 to clear the violations and appellant indicated the result if 'the old man' were not reimbursed. It is true that Murphy apparently was not deceived by the original representations, but the effect produced on the person to whom a threat is made is immaterial. People v. Franquelin, 109 Cal.App.2d 777, 783, 241 P.2d 651; People v. Lavine, 115 Cal.App. 289, 300, 1 P.2d 496.
In the Schmitz case, supra, the Supreme Court in denying a hearing stated that '[i]t was * * * lawful for any person, by legitimate persuasion or argument, to endeavor to prevail upon the commissioners to refuse the license, although such person was actuated by a malicious intent to injure the restaurant keepers and cause them pecuniary loss. The conjunction of the lawful persuasion inducing the lawful refusal of the license with the malicious motive instigating the persuasion would not convert the lawful act of refusing the license into an unlawful one, nor make the resulting injury unlawful or actionable.' 7 Cal.App. at pages 370-371, 94 P. at page 421.
Murphy's testimony indicates that he understood appellant's statements to mean that he would lose his license if he did not pay the $720. There was evidence that violations of the Alcoholic Control Act, Bus. & Prof. Code, § 23000 et seq., did occur on Murphy's premises.
If the alleged threat here was only a threat to procure the revocation of Murphy's license, and the revocation was to be achieved by lawful means, then there was not a sufficient threat in the instant case. However, appellant's statements indicate that the revocation would be achieved by unlawful means. The trial court could have found either that the threats involved more than revocation of the license or that the threat was to procure the revocation by unlawful means. The evidence justifies the implied finding that appellant's failure to victimize Murphy was due to his arrest or to the fact that he did nor produce fear in the mind of his victim, not to a change of heart by him. People v. Goldstein, 84 Cal.App.2d 581, 587, 191 P.2d 102. Appellant's intent can be shown by his statements to the police after his arrest. The facts indicate and reasonable inferences therefrom justify the deduction that appellant intended to obtain money from Murphy through false representations and when Murphy indicated that he was unable to raise the money, appellant resorted to an attempted extortion.
Since the attempted grand theft conviction must be reversed, appellant's contention concerning the improper multiple convictions need not be considered.
Penal Code, § 654, cited by appellant, provides in part: 'An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. * * *'
In People v. Brown, 49 Cal.2d 577, 320 P.2d 5, our Supreme Court discusses this code provision and states that it has been applied '* * * not only where there was but one 'act' in the ordinary sense * * *, but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. Where the question is whether a transaction is divisible or indivisible, each case must be resolved on its facts.' 49 Cal.2d at page 591, 320 P.2d at page 14. In the instant case two statutes were involved and it is a question whether appellant's acts were divisible so as to constitute two separate offenses.
Respondent argues that when appellant met Murphy on June 18 and realized that he was going to have difficulty in obtaining the $720, he changed his method of attack and attempted to procure the money by threatening Murphy.
In a different manner of analysis falls the question whether appellant's aggregate or total conduct transpired in an undivided field or enclosure large enough to contain all of the elements of both offenses charged, but so grossly entwined as not to permit of dividing off the field into two distinct zones, one applicable to theft and the other to extortion.
In this process or analysis the question of intent finds a place of serious concern. About his intent to attempt to extort there is no reasonable doubt in the whole record. The intent to consummate the attempted grand theft falls short of its mark; no whatever extent it had proceeded it was outrun by appellant's plan to commit extortion. Appellant had not gone so far in the pursuit of his plan to commit grand theft that he described a boundary about his conduct, encompassing every necessary element of an 'attempt.'
After all, appellant's object was to obtain the sum of $720 by unlawful means, but it was only to obtain $720. He could not take that sum twice any more than one could commit double murder upon one person. The considerations incurred by this analysis pose other questions in the forms: 'If the appellant had actually obtained delivery of the sum of $720 on the occasion of June 18 what crime would be have committed, one or both?' and 'Would he then have acted under the impulse of two intents?' These questions, in the gross, afford a solid base for determination for at the point of receipt of the money both courses of conduct would have endured to the end.
We incline to the view that for the greater part appellant's total conduct consisted of preparations of mixed types culminating in an intent to commit extortion, and that his conduct is better judged according to the views set forth in People v. Brown, 49 Cal.2d 577, at pages 590-593, 320 P.2d 5 and cases therein cited (People v. Coltrin, 5 Cal.2d 649 et al., 55 P.2d 1161).
For the reasons above stated the judgment as to court 1 is reversed and the judgment as to court 2 is affirmed.
KAUFMAN, P. J., and DRAPER, J., concur. --------------- * Opinion vacated 338 P.2d 903.