Opinion
Cr. 5186
12-30-1954
The PEOPLE of the State of California, Plaintiff and Respondent, v. Grady C. TERRY and Lloyd Fred Rossi, Defendants. * Lloyd Fred Rossi, Defendant and Appellant.
William H. Rosenthal, Marshall Gumbiner and Joseph Ostrow, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Grady C. TERRY and Lloyd Fred Rossi, Defendants. *
Lloyd Fred Rossi, Defendant and Appellant.
Dec. 30, 1954.
Rehearing Denied Jan. 10, 1955.
Hearing Granted Jan. 28, 1955.
William H. Rosenthal, Marshall Gumbiner and Joseph Ostrow, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.
SHINN, Presiding Justice.
By information, Grady C. Terry and Lloyd Fred Rossi were accused of offering and giving a bribe to one Norman Moore, alleged to be a ministerial officer, employee and appointee of the City of Los Angeles, in violation of section 67 1/2 of the Penal Code. They were also accused of the additional offense of bribery in violation of section 137 of the Penal Code in that they did offer money and promise to give to Norman Moore and John Malick, persons about to be called as witnesses, a bribe upon the understanding and agreement that the testimony of such persons about to be called as witnesses would be influenced. It was alleged that defendant Terry, under the name of G. C. Wood, had been convicted in Oklahoma of offering a forged instrument for sale, a felony, and had served a term of imprisonment therefor in the state prison.
In a nonjury trial defendants were acquitted on the first count of the information and convicted on the second. It was found that Terry had suffered the former conviction. Proceedings were suspended and each defendant was granted three years' probation and fined $400. Rossi appeals. Points on appeal are (1) insufficiency of the evidence and (2) that if Rossi did violate the law, he was entrapped into the violation.
In our summary of the evidence we shall state the facts that were established by the testimony of Norman Moore, a Los Angeles police officer, and shall disregard the testimony of the defendants in the few respects in which it was contradictory of that of Moore.
Terry operated a restaurant and bar on Seventh Street in Los Angeles. Rossi operated a similar establishment on Seventh Street. Police Officer Moore and Terry had been acquainted for about six years. About four months prior to the events which led to the arrests, Terry and Moore had met in Division 7 of the Municipal Court. Terry made a proposition to Moore, to be referred to later, with respect to obtaining money from persons arrested by Moore for violation of the liquor laws. Rossi's bartender was arrested by Moore and his 'partner.' At about 2:00 p. m., on July 24th, at Terry's invitation, Moore and Officer Malick entered Terry's cafe. Terry, ascertaining that Moore had made the arrest, stated that Rossi was a friend of his and asked if something could be done for him, that 'it would be the price of a couple of boxes of cigars'; Moore said, 'Well, I don't know about that,' and started to leave the place. As he passed out the door, Terry tapped him on the shoulder, held up two fingers and whispered 'two hundred.' Terry also asked to see the officers again that night. Moore and Malick then went to the Central Police Station and had a conversation with their sergeant. At about 6:00 p. m. Moore again went to police headquarters; at about 8:30 p. m., Moore, Malick and Sergeant Thompson went to Terry's place, but Terry was not in; by 9:30 he had not arrived. At about 10:50 p. m., Moore and Malick entered Terry's place; Sergeant Thompson was standing across the street. The officers talked with Terry. Moore asked Terry what the 'deal' was. Terry said it would be worth $200 if Moore could do something for Rossi. Moore said he might be able to do 'something along that line' but would have to have 'something to go on' and that it would take 'at least $50 to get started.' In this conversation with Terry, Moore reminded him of the previous conversation outside of Division 7. When asked to relate that conversation, Moore testified: 'I asked him what the deal was on making these ABC pinches. Mr. Terry stated that the only thing I would have to do is make ABC pinches and that he would go to the bar the next day and just happen to be in there. He said, 'Of course the owner will tell me about receiving a pinch and I will tell him that I might be able to do something for him.' He says, 'The only thing you have to do is when you make the arrest is to substitute the drink that you take with a non-alcoholic beverage or change your testimony in some way.' He said, 'It will be worth $500 or $1,000 or whatever we can get on the thing.'' Moore was asked: 'Was that the substance of the conversation, that part of the conversation, that you had with Terry at around 10:50 p. m. on July 24th' and he answered 'That is correct, sir.' Terry testified that the arrangement with Moore was made when they had met in Division 7, on a previous occasion, and that Moore re-stated, it in the 10:50 p.m. meeting. Moore, recalled for further testimony, did not dispute this testimony of Terry's. This significance of Terry's testimony is that Moore did not deny any part of it. Moore told Terry that he wanted him (Terry) to handle the case; he asked Terry if he (Terry) could give him something on account and Terry said he could not, 'that the guy Rossi wasn't worth a dollar to him.' Terry said he (Terry) didn't what any money out of it; that Moore said to Terry: 'You see, are we going to run into all these troubles on all these other deals with me if I go on the other deals with you?' Terry said: 'I don't know what the score is. I am just trying to tell you.' Moore asked, 'How about all these other deals?' To which Terry replied, 'I can't tell you that. In other words, I don't know. I don't think anybody would get any money advanced on any of these.' Terry then said he would have to talk with Rossi. The officers remained and reported to Sergeant Thompson, who was nearby. Terry went to see Rossi, told Rossi that he had known Moore for five or six years and volunteered to get Moore to help out Rossi. Moore testified that after this conversation Terry returned to his cafe and reported to Moore that he had talked with Rossi and had told Rossi it might cost him 'a few hundred dollars'; that Rossi said 'see what you can do', that he had fired his bartender, and that Terry had said to Rossi, ' No, you can't go chicken on the damn thing because you bing-bing-bing.' Rossi said 'Hell, I know that' and Terry said 'You'd be taking a pinch every day if you were to go rotten on it.' Terry, after relating this conversation with Rossi to Moore, said 'he'll go for $500.' Shortly thereafter the officers and Terry went to Rossi's place, Moore and Rossi were introduced and the three had a conversation on the sidewalk. Rossi asked what the deal was. Moore inquired of Rossi whether Terry had not explained it and Rossi replied that Terry had said 'it was $500 bucks,' but that he had been 'taken for $1,500 once' and 'would like to put the thing in escrow or work something along those lines.' Moore declined. Moore testified that Terry told Rossi 'that we needed $50 now and the rest could come after the pinch was taken care of * * * that he would personally guarantee the $50 and that if we didn't do something for him he would get the $50 back.' And Officer Moore testified that Terry also told Rossi in Moore's presence 'that if he welshed on this deal he would take a pinch every day. Mr. Rossi said, 'Well, I am not trying to welsh on this thing * * * I just want to have all the facts straight.' He then asked me if I wanted the $50 now. I told Mr. Rossi he would have to see Mr. Terry on that thing; that Mr. Terry was handling all of the details.' Terry and Rossi went inside and in a few minutes returned and Terry handed Moore $50 in bills. Moore took the money, which he turned over to headquarters. The bills were received in evidence.
Both Terry and Rossi testified for the defense. Lest it be thought that Rossi made admissions at the trial which would militate against the defense of entrapment, we may refer briefly to his testimony. It was to the effect that Terry came to him and volunteered to intercede on his behalf with Moore; that Rossi stated that he did not wish to meet Moore; that Terry brought Moore and Malick to Rossi's place of business unsolicited by Rossi and without his knowing that they were coming and that the first he knew of their coming was when Terry informed him that they were there. He testified that Terry told him that Officer Moore's son was ill and that he needed $50 that night; that in the conversation with Moore, Terry said 'we need the $50 tonight and if you should welsh on the deal a pinch could be made every day'; that Officer Moore assented by nodding his head; that Rossi said 'I'm not trying to welsh on any deal. I want to know the facts.' When Rossi and Terry went inside, Rossi told Terry it was a shake-down to get $50 and Terry agreed, but Rossi testified that he never authorized Terry to pay any money to Moore. The arrest of the bartender was the only one that had been made at Rossi's place. Rossi said he suggested that the transaction go through escrow because he wanted to find out what Moore wanted; Moore said he needed $50 that night. There was some talk about trouble Rossi might have with the State Board of Equalization. Rossi testified that he did not agree to pay the $50, did not pay it and that at no time did he intend to pay the officer not to testify against him. Terry gave the money to Moore and guaranteed to Rossi that he (Rossi) would lose nothing by it. He (Rossi) thought that Terry could get Moore to talk favorably to someone on the State Board and that he (Rossi) was not particularly interested in talking to Moore. However, it was clear to Rossi that Terry and Moore expected him to eventually pay $500. Officer Sillings testified that in an interview with Rossi at Police Headquarters, on July 27th, Rossi stated that on July 23rd Terry had offered to intercede with Officer Moore and that he, Rossi, had stated that he 'naturally wanted to meet the officer and talk it over with him.'
We do not see how anyone could read the record without being convinced that Terry believed he had an understanding with Moore that Moore was willing to accept bribes and that it was with that belief that Terry first volunteered to help Rossi out of his difficulty, believing that Rossi could be persuaded to pay something for Moore's assistance. It is equally clear that Rossi was reluctant to become involved and that even after extreme pressure had been put upon him, he was not willing to pay any money. To be sure he did not protest Terry's putting up the $50 and gave tacit consent to paying $500 after 'it was all over' or the prosecution was 'killed' by Moore, but this was after he had been threatened with repeated arrests if he failed to pay.
Out of the mouth of Moore came the story of the sordid and unconscionable transaction. To be sure Terry broached the scheme to the officer, but the latter agreed to the plan. Whatever may have been in Terry's mind, it was in the mind of Moore to entrap someone into offering a bribe. There was, of course, no entrapment of Terry. He suggested the scheme to Moore. In order to have it understood that they were not working at cross purposes, Moore reminded Terry of the arrangement they had made some months before. That arrangement, it will be recalled, was that they were to get from $500 to $1,000 in return for Moore's efforts to defeat a prosecution after arrests made by Moore for violation of the liquor laws. Moore testified: 'Q. Now, Officer Moore, did Mr. Terry at any time offer you $500 to do any specific thing? Answer that yes or no. 'A. Yes. 'Q. He did. What did he offer you $500 to do? 'A. Well, the first time was outside of Division 7, as I testified at the preliminary hearing, approximately four months prior to this particular arrest. 'Q. We are talking about this particular case involving Mr. Rossi and this transaction of the 24th of July. Now, did Mr. Terry offer you $500 at any time? 'A. I kind of take it's all kind of one case now.'
When the former discussion was re-stated by Moore and the amounts mentioned, Terry undertook to get $500 from Rossi. Moore, as we have seen, testified that it was 'all one deal,' meaning, we assume, that it was a deal between himself and Terry pursuant to the original understanding. And, as we have seen, Moore even asked Terry about other arrests or deals, again referring to the original arrangement that Terry was to solicit bribes for Moore. It is immaterial what Terry's motives or expectations were, whether he believed he would share in any money Rossi might part with, or wished to help Rossi out of trouble, or to fatten the purses of the officers. He acted throughout as the emissary and confederate of Moore, whose motive, by his own admissions, was to use Terry for the purpose of ensnaring Rossi, and then to arrest them both.
The law of entrapment has been expounded by all the courts. However, it has the meaning and only the meaning approved in People v. Bradford, 84 Cal.App. 707, 712, 258 P. 660, 662, that "where the criminal intent originates in the mind of the entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him therefor no conviction may be had." We venture to say that no court has ever held the law to be otherwise. It would not be without profit that those who are charged with the enforcement of the laws, including prosecutors and judges, both below and above, should become acquainted with and reflect upon some of the views on the subject that have been expressed by men of great wisdom and learning in the law. It was said in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 213, 77 L.Ed. 413, 418: 'The federal courts have generally approved the statement of Circuit Judge Sanborn in the leading case of Butts v. United States [8 Cir., 273 F. 35, 38, 18 A.L.R. 143], supra, as follows: 'The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. Here the evidence strongly tends to prove, if it does not conclusively do so, that their first and chief endeavor was to cause, to create, crime in order to punish it, and it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it,'' and in the concurring opinion of Justices Roberts, Brandeis and Stone: 'There is common agreement that where a law officer envisages a crime, plans it, and activates its commission by one not theretofore intending its perpetration, for the sole purpose of obtaining a victim through indictment, conviction and sentence, the consummation of so revolting a plan ought not to be permitted by any self respecting tribunal. Equally true is this whether the offense is one at common law or merely a creature of statute. Public policy forbids such sacrifice of decency. The enforcement of this policy calls upon the court, in every instance where alleged entrapment of a defendant is brought to its notice, to ascertain the facts, to appraise their effect upon the administration of justice, and to make such order with respect to the further prosecution of the cause as the circumstances require. * * * The doctrine rests, rather, on a fundamental rule of public policy. The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention. Quite properly it may discharge the prisoner upon a writ of habeas corpus. Equally well may it quash the indictment or entertain and try a plea in bar. But its powers do not end there. Proof of entrapment, at any stage of the case, requires the court to stop the prosecution, direct that the indictment be quashed, and the defendant set at liberty. If in doubt as to the facts it may submit the issue of entrapment to a jury for advice. But whatever may be the finding upon such submission the power and the duty to act remain with the court and not with the jury.' Other cases are Cline v. United States, 8 Cir., 20 F.2d 494; United States v. Healy, D.C.Mont., 202 F. 349, 350; United States v. Eman Mfg. Co., D.C.Colo., 271 F. 353, 356; United States v. Lynch, D.C.N.Y., 256 F. 983; United States v. Echols, D.C.Tex., 253 F. 862; United States ex rel. Hassel v. Mathues, D.C.Pa., 22 F.2d 979; People v. Gallagher, 107 Cal.App. 425, 290 P. 504; Sam Yick v. United States, 9 Cir., 240 F. 60; Woo Wai v. United States, 9 Cir., 223 F. 412, 415; People v. Mills, 178 N.Y. 274, 70 N.E. 786, 67 L.R.A. 131.
Whenever an accused relies upon the defense of entrapment, the factual question is presented whether the accused or, in the usual case, the officer who made the arrest, conceived the commission of the act constituting the offense and the further question whether the officer encouraged and induced the accused to commit the act. These questions can be answered only through a reasonable and logical consideration of the evidence. If all the evidence in the case, both direct and circumstantial, proves the facts which constitute entrapment, the trial court is powerless to ignore it and to make determinations of fact contrary thereto. There can be no facts known to the court other than those that are deemed to be known to all men and those that are established by the evidence in the case. Inferences must have a rational basis in the facts proved. They cannot be taken from the thin air.
The grave questions presented to us on the appeal cannot be passed off with the remark that we are bound by the trial court's determinations of fact upon conflicting evidence. There was no conflict in the evidence as to any material fact.
The trial court impliedly found that Rossi and not Moore and Terry originated the plan of bribery. The positive evidence of all the witnesses was to the contrary. The trial court impliedly found that Terry and Rossi were acting independently of any arrangement with Moore. The uncontrovertable testimony of Moore was to the contrary. He sent Terry to Rossi after reminding him of the arrangement they were to get from $500 to $1,000 as a bribe, and Terry raised the demand from $200, which he had suggested to Moore, to $500. And Moore inquired of Terry concerning other possible victims from whom money might be obtained. The trial court impliedly found that Moore and his confederate Terry did not induce Rossi to consent to the payment of a bribe. The evidence of Moore and of Terry and of Rossi was that Moore and Terry not only held out to Rossi the hope of benefit to be gained through the bribery of Moore but also threatened him with successive arrests if he refused to pay the money which they demanded. Even the most inexperienced and poorly trained police officer should know that it would be a crime for him to extort money from a citizen under threat of arrest. Officer Moore was acting in collaboration with his superiors. It is surprising that they should have shared the too common belief that the ends of law enforcement justify the employment of unlawful means. It is a benighted and recidivous belief entertained by some unthinking individuals who have no understanding or appreciation of the time and effort it has taken in our own county to bring about protection of its citizens from brutality and oppression at the hands of the organized power of the State. Such beliefs and practices deserve only rebuke and repudiation by the courts.
There is one feature of the case which, alone, is sufficient to require a reversal of the judgment. If Rossi gave tacit consent to the payment of money to Moore it was not the sort of consent that would make him the giver of a bribe. Moore knew, before he ever met Rossi, that Terry had told Rossi that unless he came through with the money he would be subjected to repeated arrests. Moore and Terry and Rossi testified that Terry repeated that threat in the presence of Moore. Terry and Rossi testified that Moore expressed his agreement by nodding his head. Moore did not deny that he had expressed his approval of Terry's threat. Moore and Terry were not satisifed with mere efforts at persuasion. They felt it necessary to employ threats. This was not an ordinary case of entrapment. The plan of Moore and Terry was preconceived. Rossi was not only caused to believe that Moore might help him but he was put in fear of the police. We would not have thought it could happen that a citizen would be convicted of bribery for paying or agreeing to pay money to a policeman under threats that if he refused to pay he would be subjected to repeated arrests upon trumped-up charges. How, we ask, was Rossi to know what false charges might be made against him through the activities of the pair who brazenly solicited bribes? Of what undefined and non-existent violations was he to be accused? Trouble with the police in the precarious business of dispensing liquor could cost him his license. He was an unwilling victim. We cannot agree that the law will permit a citizen to be branded as a criminal by the unlawful means that were employed by Moore and Terry.
The judgment is reversed with instructions to the Superior Court to dismiss the cause.
VALLEE, Justice.
I concur.
Rehearing denied.
PARKER WOOD, Justice (dissenting).
I dissent. I cannot agree that the evidence shows, as a matter of law, the commission of the offense as a result of entrapment. In the recent case People v. Braddock, 41 Cal.2d 794, 264 P.2d 521, the appellant therein made such a contention with reference to the evidence therein, but the court held that entrapment was not shown as a matter of law.
In the present case, the bartender in Rossi's saloon was arrested by Officer Moore on July 8, 1953, upon a charge of violating the Alcoholic Beverage Control Act, in that, he sold intoxicating liquor to an obviously intoxicated person. Prior to July 24, 1953, Officer Moore had been subpoenaed as a witness in the trial of the bartender upon that charge. Section 137 of the Penal Code provides: 'Every person who gives or offers * * * to any witness * * * any bribe, upon any understanding * * * that the testimony of such witness shall be thereby influenced * * * is guilty of a felony.' Terry's saloon was about five blocks from Rossi's saloon, and Rossi had known Terry about two years.
Officer Sillings testified that he was present when Rossi was questioned by officers at the police station (after Rossi and Terry had been arrested). Rossi said in that conversation that on July 23, 1953 (the day before Terry first talked to Officer Moore about the bartender), Terry was in Rossi's saloon passing out pamphlets in behalf of a candidate for public office, and they (Rossi and Terry) talked about the arrest of the bartender 'just like someone else would talk about a traffic ticket.' Rossi said that (at that time) Terry asked him if he knew the arresting officers. Rossi said that he replied that he thought one of them was Moore, and Terry said that he had known Moore about five years. Rossi said that the substance of that conversation (between Rossi and Terry--before Terry first talked to Officer Moore about the bartender) was 'that through the influence of Mr. Terry, Officer Moore could do Mr. Rossi some good on his ABC [Alcoholic Beverage Control Act] pinch.' Rossi then said (to the officers who were questioning him), 'So, naturally I wanted to meet the officer and talk it over with him,' and a meeting was arranged for the following night (July 24). The officers asked Rossi what he expected Officer Moore to do. Rossi replied, 'Well, it is a kind of a friendship deal between Terry and I. We are both bar owners in the vicinity and I thought maybe the officer could kind of go easy on the evidence; and if I were found not guilty, then I wouldn't have to go to the State Board [Board of Equalization].' It could be inferred from that testimony that, on the day before Terry first talked to Moore about the bartender's case, Rossi had formed the idea that Officer Moore could do 'some good' in the bartender's case, could be influenced to go easy on the evidence therein, and he (Rossi) 'naturally' wanted to meet the officer and 'talk it over with him.'
On July 24 (the next day after Rossi had formed such idea), about 2 p. m., while Officers Moore and Malick were in Terry's saloon, Terry asked Moore if he made the arrest at Rossi's place. Moore replied in the affirmative, and then Terry 'wanted' to know if Moore could do something about the arrest inasmuch as Rossi had just received his whisky license and he did not want a suspension of his license; and Terry said that if Moore could do something for him it would be worth a couple of boxes of cigars. Moore asked what he could do, and Terry suggested that he could fall down and break the evidence. Moore, after stating that he did not know about that, started to leave. As Moore was leaving (about 2:15 p. m.) Terry whispered 'two hundred.' Then Terry said that he would like to see the officers that night. The officers went to the police station and talked with their sergeant. About 10:50 p. m., the officers talked with Terry in front of his saloon, and Moore asked him what the deal was. Terry said Rossi would be worth $200 if Moore could do anything for him. Moore said he might be able to do something along that line but he would have to have something to go on. Terry asked how much and Moore said it would take at least $50 to get started. Terry said he would have to see Rossi, and then he left and walked east (toward Rossi's) on 7th. The deputy district attorney asked Moore (on direct examination) if during that conversation (on July 24 about 10:50 p. m.) any mention was made about a conversation that Terry and Moore had about four months previously in Division 7 (Municipal Court). Moore answered that he directed Terry to the conversation that they had outside Division 7 and asked him what the deal was on making these ABC pinches. Terry then made a statement, quoted in the majority opinion, to the effect that Terry would tell the arrested persons that he could do something for them, that Moore could change his testimony, and it would be worth whatever they could get. Moore testified that that was the substance of the conversation that was had on July 24, about 10:50 p.m. In relating that conversation, he did not state what was said in the conversation that was had four months previously. He said that (on July 24) he directed Terry to that conversation and asked what the deal was on the pinches. (Later in his testimony [p. 183] he said that Terry offered him $500 outside Division 7 about four months previously. Also later [p. 202], the judge said that although it appeared to him that Moore had testified that the conversation [wherein Moore referred to Division 7] occurred on July 24, he wanted to be sure that Moore was not relating the conversation that occurred about four months previously. Terry's attorney said that on his cross-examination he said he was referring to the July 24 conversation and he nailed it down specifically as to the date.) There was no evidence as to what Moore said at that prior conversation. There was no evidence that Moore made any reply or said anything when Terry told him on July 24 what the deal was. In the fourth paragraph of the majority opinion reference is made to the conversation of July 24 at 10:50 p. m. and then it is stated: 'In this conversation with Terry, Moore reminded him of the previous conversation outside of Division 7. When asked to relate that conversation, Moore testified: 'I asked him what the deal was * * *.'' As above stated, the trial judge made an inquiry to be sure that it was not the conversation of four months previously that was then (at the trial) being related by Officer Moore.
After said conversation of July 24 at 10:50 p. m., Moore talked with his sergeant who was across the street.
Later that evening Terry returned to the automobile in which Officers Moore and Malick were sitting. Terry then told Moore that Rossi wanted to meet Moore. About 11:50 p. m. on that day, Moore and Terry went to Rossi's place of business. Then Rossi or Terry said it would be better if they (the three of them) went out on the sidewalk to talk. They went out to a place on the sidewalk about 75 feet from the entrance to Rossi's place of business.
Officer Moore testified that when they were on the sidewalk, Terry told Rossi that Moore was the officer who made the arrest there. Terry said that 'The kid [Moore] is in a hurry; we got to get going on this thing.' Rossi said, 'All right; what is the deal?' Moore said to Rossi, 'Well, didn't Terry give you the details on this thing?' Rossi said, 'Yes, he said it was 500 bucks; but I got taken for $1,500 once, so I would like to put the thing in escrow or work something along those lines.' Moore said that he could not do anything like that. Terry then told Rossi that 'we needed $50 now and the rest could come after the pinch was taken care of,' that 'he [Terry] would personally guarantee the $50 and if we didn't do something for him he would get the $50 back,' and that 'if he [Rossi] welshed on this deal he would take a pinch every day.' Rossi replied, 'Well, I am not trying to welsh on this thing. I just want to have all the facts straight.' Rossi then asked Moore if he 'wanted the $50 now.' Moore replied that Rossi 'would have to see Mr. Terry on that thing; that Mr. Terry was handling all of the details.' Then Terry and Rossi went into Rossi's saloon, and about three minutes later Terry returned and handed five ten-dollar bills to Moore. Then Moore went to the police station and gave the bills to a police lieutenant.
In rebuttal Moore testified that when he saw Rossi and Terry on July 24 he had a wire-recording device, known as a Minifon recorder, on his person--the microphone was under his tie and the unit was strapped under his arm. The device was operating when he saw Rossi and Terry. After the conversation the words that were on the recording were reduced to typewriting at the police station. He compared the typewriting with the recording and the words in typewriting were the same as the words on the recording.
Rossi had been asked, on cross-examination (as a foundation for impeachment), whether he had made certain statements when he was talking with Moore and Terry, and he said that he had not made the statements. One of the questions was whether he had said: 'How do you want to handle it [the $50]? Do you want me to come out and give it to you now?' He answered: 'No, sir. The first part of that, but 'give it to you now' was never said.' Another question was whether Rossi had said: 'The total will be 500, and then we have it killed in the City. In other words, you wouldn't have to kill it up there.' He answered that he did not say that. When Moore was testifying in rebuttal he was asked whether Rossi had made the certain statements which were so referred to on cross-examination of Rossi. Moore, in replying thereto, used the typewritten transcription of the recording to refresh his recollection, and he replied that Rossi had made said statements.
In People v. Braddock, supra, 41 Cal.2d 794, at page 802, 264 P.2d 521, at page 525, it was said: "Where an accused has a pre-existing criminal intent, the fact that when solicited by a decoy he committed a crime raises no inference of unlawful entrapment." In my opinion the question herein regarding entrapment was one of fact for the trial judge and there was ample evidence to support his finding that there was no entrapment. As above shown, the trial judge could have inferred that on July 23, before Terry or Rossi had talked to Officer Moore about Rossi's bartender, Rossi had the idea that Moore could be influenced to go easy on the evidence, and Rossi wanted to meet Moore and talk it over with him. Certainly, in view of the evidence that neither Terry or Rossi talked to Officer Moore about Rossi's bartender before July 24, it cannot be said that such idea which Rossi had on July 23 was implanted by Officer Moore. Certainly that idea could not be attributed to Officer Moore as a result of the conversation between Terry and Officer Moore which occurred four months previously, for the reason there was no evidence herein as to what that conversation was, except that Officer Moore did say that Terry offered him $500. There was no evidence as to what Officer Moore said in reply to that offer. As above shown, the conversation wherein Terry stated 'what the deal was' on the ABC pinches occurred on July 24--the trial judge emphasized that point by stating that he understood that said conversation occurred on July 24, but he wanted to be sure that the witness (Officer Moore) was not relating the conversation that occurred four months previously; and thereupon the attorney for Terry said that in his cross-examination he referred to July 24, and had nailed it down specifically to that date. It seems to me, therefore, that the reference in the majority opinion to what was said in the conversation of four months previously is in error. The statement by Terry to Officer Moore on July 24 as to 'what the deal wash cannot, of course, be assigned as a scheme on the part of Officer Moore which implanted in the mind of Rossi the said idea which he formed on July 23, that Officer Moore could be influenced to go easy on the evidence. I think that Terry's statement, referred to in the majority opinion, that Moore re-stated the previous conversation is without significance since the evidence is to be viewed on appeal in the light most favorable to the judgment of the trial court.
The majority opinion states that Officer Moore sent Terry to Rossi. As I view the evidence, especially with respect to the conversation between Rossi and Terry on July 23, the trial judge might well have found, and probably did find, that Rossi sent Terry to Officer Moore, or that both Rossi and Terry planned to approach Officer Moore. There was testimony by Officer Sillings that Rossi said on July 23 that he wanted to meet Officer Moore and a meeting was arranged for the following night. In my opinion the trial judge could have found, and probably did find, that Terry brought up the matter (with Officer Moore) of doing 'some good' for Rossi's bartender and, Terry having revealed himself as a fixer and racketeer, Officer Moore became a good listener and did not discourage Terry as he brazenly proceeded with his pre-existing ideas as a fixer. The evidence shows that Terry asked Officer Moore if he could do some good on the bartender's case, and offered him a couple of boxes of cigars, then $200, and then $500. Certainly, it cannot be said that Officer Moore promoted those bribery efforts. Also, the trial judge could have found, under the evidence, that Rossi joined Terry in his fixing proposal before Terry talked with Officer Moore about the bartender and before Officer Moore appeared on the scene at Rossi's place. Rossi was not merely a 'passive instrument' in the transaction. He asked what the deal was. He wanted to handle the matter in escrow. He was impeached in material respects. He denied that he asked if he should come out and 'give it [$50] to you now'; and he denied that he said, 'The total will be 500, and then we have it killed in the City.' Officer Moore (using the typewritten transcription of the recording to refresh his recollection) testified that Rossi did make those statements. In my opinion, it was for the judge to say as a matter of fact whether Rossi had a pre-existing intent to commit the offense. I agree with the trial judge. The several quotations, in the majority opinion, from the testimony of talkative Terry indicate the ample opportunity which the trial judge had to judge of his credibility. I would affirm the judgment and the order denying a new trial. --------------- * Vacated 282 P.2d 19.