Bompensiero v. Superior Court In and For San Diego County

Citation281 P.2d 250,44 Cal.2d 178
CourtUnited States State Supreme Court (California)
Decision Date18 March 1955
PartiesFrank BOMPENSIERO, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR SAN DIEGO COUNTY, and Judge John A. Hewicker, Respondents. L. A. 23513.

Augustine, Bryans, Ragen & O'Connor, San Diego, and Frank Desimone, Downey, for petitioner.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., James Don Keller, Dist. Atty., and Barton C. Sheela, and Jack R. Levitt, Deputy Dist. Attys., Los Angeles, for respondents.

EDMONDS, Justice.

By this proceeding in prohibition, Frank Bompensiero challenges the jurisdiction of the superior court to try him upon an indictment which names him as one of several persons who participated in the acceptance of bribes by a public official. He questions the sufficiency of the indictment and of the evidence before the grand jury to establish the crimes charged. He also attacks the trial judge's action in striking from the record a statement disputing the qualification of the judge to rule upon preliminary motions.

According to the evidence before the grand jury, Charles E. Berry was District Liquor Control Administrator of San Diego and Imperial Counties. It was the practice of the Board of Equalization to rely upon the recommendation of the district administrator as to the issuance of a new on-sale liquor license. Berry was the sole official in the district empowered to make such a recommendation.

Several owners of cafes or restaurants in the district testified that they paid substantial sums of money in excess of the statutory fee to obtain a new license. In a typical transaction the owner, having made unsuccessful application to the office of the district administrator, would contact a third party intermediary who assertedly could arrange to have the license issued. Upon payment to that person of several thousand dollars, the owner would be instructed to renew his application with the assurance that a license would be forthcoming. Upon a new application, the license would then be issued through normal channels.

Several persons were named in the indictment with Bompensiero as having acted as intermediary between Berry and the restaurant owners. However, in only one transaction is Bompensiero directly linked with the granting of a license. The evidence in that regard is as follows:

In the winter of 1950, Gillenberg approached Provart, an employee in the district administrator's office, and discussed the possibility of obtaining a seasonal on-sale license. After two or three of such conversations, Provart spoke to Berry about the matter. They agreed that Gillenberg could qualify for a license, but Provart was instructed to tell him it would cost $5,000 to have it issued. A counter proposal of $3,500 was made to Provart and conveyed to Berry. They discussed the advisability of having Bompensiero 'talk to' Gillenberg, and Provart was told to tell Gillenberg that 'Frank will come and see him.'

A man who identified himself as 'Frank B.' called upon Gillenberg and told him he could get a license but it would cost $5,000. When Gillenberg expressed doubt, he was told to ask Provart if 'Frank B. is all right and if I know what I am talking about.' Provart assured him that Frank B. could be depended upon.

A short time later, Gillenberg made application for a seasonal license. Two or three weeks passed without action upon it. He then received a telephone call instructing him to meet Frank B. in the lobby of a designated hotel and to have the money with him. There he met the man previously identified to him as Frank B., and they discussed payment. A cashier's check for $5,000 at first was refused, but after further conversation the check, which when presented to the grand jury bore the indorsement 'Frank Bompensiero', was accepted. The license was issued in April, 1951, and soon afterwards, Berry gave Provart $400 as his share of the 'Gillenberg deal.'

Gillenberg had been told by Bompensiero that after a year from the time the seasonal license would be issued, he could re-apply and receive a general license. Such an application was made by Gillenberg in October, 1952. After about three weeks in which no action upon the application was taken, a man identifying himself as Bennett called upon Gillenberg. Bennett told him he could obtain a general license only after payment of $2,500. Gillenberg agreed and paid the amount to Bennett in cash. A few days later he re-applied for the general license, and in a few weeks it was issued.

The indictment was returned on September 1, 1954. In Count I, Bompensiero and several other persons are accused of 'Conspiracy to Commit the Crime of Asking and Receiving Bribes by a Public Officer' in that they 'within 3 years last past * * * did agree to ask and receive bribes on behalf of Charles Berry.' Eight overt acts in furtherance of the alleged conspiracy are asserted, including Bompensiero's instruction to Gillenberg, on February 27, 1951, to apply for a seasonal license and Bennett's demand for $2,500 for a general license made on October 25, 1952.

In Count X, it is alleged that Bompensiero and others on April 3, 1951, 'did ask and agree to receive' a bribe from Gillenberg upon an understanding that the vote, opinion or action of Berry upon matters officially before him would be influenced. A similar charge is made in Count XI, in which it is asserted that Bompensiero and others 'did ask and agree to receive a bribe' from Gillenberg on October 25, 1952. The indictment also included several other charges against Bompensiero.

When arraigned, Bompensiero moved to quash the indictment and filed a written demurrer to it. All of the counts against him were dismissed except Counts I, X and XI, with regard to which his motion was denied and the demurrer overruled. He then filed an 'Affidavit and Application for Removal of Trial Judge.' The court ordered the document stricken on the ground that it was frivolous and sham.

As grounds for issuing the writ of prohibition Bompensiero contends that the trial judge exceeded his jurisdiction in striking the 'statement and affidavit' from the record. He also argues that the evidence before the grand jury is insufficient to establish probable cause for believing him guilty of the offenses charged in Counts I and XI. Count X, he asserts, on its face shows the bar of the statute of limitations.

The ground of asserted disqualification of the trial judge is 'personal bias and prejudice' against Bompensiero, allegedly demonstrated by two statements made by him while presiding over a separate trial of some of the persons named in the indictment. In that proceeding, Bompensiero was called as a witness for the prosecution and refused to answer on the ground that his testimony might tend to incriminate him. Several other witnesses were called and claimed the same privilege. During arguments upon a motion for a new trial, the trial judge remarked that he had 'believed the witnesses for the prosecution' and expressed the opinion that 'if the Board of Equalization wants to do their duty, I think what they should do, instead of picking on these fellows that came in here, they should also revoke the licenses of those that were called before a body, under oath, and refused to testify on the ground that whatever testimony they might give would tend to incriminate them.' Bompensiero asserts that he holds a liquor license and thus is in the category mentioned in the latter statement.

These remarks, made in a criminal prosecution in which Bompensiero was only indirectly involved and without indication that he was being singled out, show so little basis for claiming personal bias or prejudice against Bompensiero as to justify the conclusion that the charge of disqualification is sham and frivolous. In that circumstance, the trial judge was not in error in striking the statement and affidavit. Cf. People v. Darby, 114 Cal.App.2d 412, 439, 250 P.2d 743; People ex rel. Department of Public Works v. McCullough, 100 Cal.App.2d 101, 111, 223 P.2d 37. There is also another basis for the order. Section 170 of the Code of Civil Procedure requires that, in a court of record, a statement of disqualification of the trial judge 'shall be verified by oath in the manner prescribed by Section 446 of this code for the verification of pleadings.' Bompensiero's statement was not verified and, upon that ground, is formally defective and was properly stricken out. Cf. People v. Kirk, 98 Cal.App.2d 687, 693, 220 P.2d 976.

With regard to the sufficiency of the evidence to support the indictment, Bompensiero urges that Count I charges only a single, general conspiracy to ask for or receive bribes on behalf of Berry. As he views the evidence before the grand jury, it does not show that he conspired with any of the other persons accused of being intermediaries for Berry, but connects him only with Berry and Provart. The count may not reasonably be construed as charging a series of isolated conspiracies, he argues, but even if it may be so read the only one which includes him terminated more than three years before the indictment was returned and is barred by section 800 of the Penal Code.

Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344. An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. Lorenson v. Superior Court, 35 Cal.2d 49, 56, 59, 216 P.2d 859; cf. Greenberg v. Superior Court, 19 Cal.2d 319, 322, 121 P.2d 713.

The evidence before the grand jury presents a close question as to whether it shows probable cause to believe a general conspiracy existed and that Bompensiero was a...

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