People v. Amata

• Citation: 270 Cal.App.2d 575,75 Cal.Rptr. 860
• Decision Date: 11 March 1969
• Docket Number: Cr. 7203
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Mario Carl AMATA, Marion Leroy 'Mike' Elliott and Richard Alan Gilmore, Defendants and Appellants.

Page 860

75 Cal.Rptr. 860

270 Cal.App.2d 575

The PEOPLE of the State of California, Plaintiff and Respondent, v. Mario Carl AMATA, Marion Leroy 'Mike' Elliott and Richard Alan Gilmore, Defendants and Appellants.

Cr. 7203.

Court of Appeal, First District, Division 3, California.

March 11, 1969.

Rehearing Denied April 10, 1969.

Hearing Denied May 8, 1969.

Toff, Gordon & Royce, Frank T. Jolly, Mountain View, for appellants.

Thomas C. Lynch, Atty. Gen. of State of California, Robert R. Granucci, Timothy G. Laddish, Deputy Attys. Gen., San Francisco, for respondent.

DAVID, Associate Justice pro tem. ^*

Appellants appeal their convictions and sentences, having been found guilty as charged in a four-count indictment filed in the Superior Court of Santa Clara County.

Count one charged them with conspiracy (Pen.Code, § 182) to violate Penal Code, section 475 (possession of unfinished counterfeit travelers checks and money orders, with intent to complete and utter them), specifying twelve overt acts from August 1, 1967 through November 9, 1967.

Count two charged them with violation of Penal Code, section 475 (possession of unfinished counterfeit checks, with intent to complete and utter them) on or about November 5, 1967.

Count three charged another such violation on or about November 8, 1967.

Count four charged appellant Amata with a violation of Penal Code, section 475a (possession of a completed check, with intention to pass the same) on or about November 5, 1967.

Counts one and three also charged appellant Gilmore with being armed with a deadly weapon at the time of the offense charged; and count two as amended charged Gilmore with being armed with a concealed deadly weapon. The indictment also charged that all offenses were linked together in their commission.

The appellants having been found guilty upon each count applicable to them by the jury were sentenced to state prison for the terms prescribed by law, the sentences to run concurrently. No sentence was imposed as to count one. (Cf. In re Romano, 64 Cal.2d 826, 51 Cal.Rptr. 910, 415 P.2d 798). During the course of the proceedings, each appellant's motions for change of venue, and for dismissal of the case under Penal Code, section 995 were denied; and motions of Amata and Elliott for reduction of bail were denied. Appellants' motions for new trial likewise were denied.

Appellants claim, 'Surely, it was clearly proved that the reason the Appellants had the checks in their possession at the time of the arrest was to effect a sale to a buyer of counterfeit checks'; that consequently, the evidence failed to show possession of travelers checks with intent to defraud; that their arrests and convictions were the result of entrapment, and also, that the trial court erred in not giving one of several instructions tendered relative to entrapment, concerning burden of proof; that a tape recording of a conversation between an appellant and Richards, as prosecuting witness, was 'wiretap' evidence, received in evidence to appellants' prejudice; that this was inadmissible, though secured by a private investigator, without the warnings appropriate under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; that their trial was not fair, due to 'unsupported and prejudicial statements' made in the public press; and hence, their convictions were contrary to due process of law; that the bail for appellants was excessive, depriving them of their rights under the Eighth and Fourteenth Amendments to the United States Constitution; that the grand jury indictment was defective, since allegedly based on testimony contrary to that given on the trial; that there was prejudicial misconduct of the district attorney in producing two crates of counterfeit Bank of America travelers checks in the courtroom, which could have prejudiced the jury, though the same were not admitted in evidence; and that there was a denial of due process of law, because allegedly, the prosecution failed 'to bring forth all of the evidence.'

Finally, it is claimed that appellants' joint trial for conspiracy under Penal Code, sections 182 and 1098 constitutes a denial of due process of law and requires reversal.

In October 1967, in the course of another investigation for the Bank of America, Irving J. Richards, employee of a firm of private investigators, was introduced to one Pedro Torres, in Miami, Florida, by an informant Kaufman. Torres told Richards he was in charge of a counterfeit travelers check operation, and could get him counterfeit Bank of America travelers checks at 22 cents on the dollar. At this time $50 counterfeit checks of the bank were being distributed about the United States.

When advised of this offer, the bank retained Richards to investigate. Richards thereupon instructed Kaufman in Miami to get samples of the counterfeits from Torres. Kaufman, in Miami, told Torres' son he wanted to reach Torres. The reply to Kaufman was a call to him from Arizona by Elliott, who gave him a telephone number, which Kaufman relayed to Richards.

Thereafter, there followed a series of telephone conversations between Richards, using the name of Danny Bello, and Elliott, who had responded to Kaufman's attempt to contact Torres. Elliott met Richards at the San Francisco airport, stating they had available stolen American Express checks, and some $2,000,000 to $2,500,000 in counterfeit Bank of America travelers checks available to Richards and his 'Mexican syndicate' for 20% To 25% Of face value. Richards, at the instance of Elliott, went to Cleveland, met Gilmore, heard discussions with Amata. Richards was given samples of the counterfeits. Still posing as a potential purchaser, Richards was told he would have to purchase $50,000 face of the counterfeits before the big deal came off. Then Elliott and Amata on air fare advanced by the bank came to San Jose to verify Richards' ability to pay for the million dollar deal. Sergeant Hernandez of the San Jose police, posing as a member of the Mexican syndicate, took them to a safe deposit box where a large sum of money was exhibited to them. Other samples of the counterfeits were left with Richards. Amata returned to Cleveland with the $50,000 face value of the counterfeits in an attache case. He stated there was no deal unless Richards bought these first, since the printer needed the money to produce the larger amount. A compromise deal was made whereby for $60,000, the $50,000 of counterfeits plus the negative and plates would be sold to Richards. The series of negotiations were related on the trial, primarily in respect to count one for conspiracy. It is to be noted that other counts of the indictment related to appellants' possession, completion and negotiation of counterfeit travelers checks for air transportation, at an eating house and at the San Jose Inn.

On the evening of November 8, 1967, the appellants were apprehended at the San Jose airport with the $50,000 face value of counterfeits, and the negative and plates for producing the Bank of America counterfeits. Gilmore when arrested carried a loaded 25 caliber revolver in a pocket inside his waistband.

Indictment followed.

As in all appeals, that evidence which supports the verdicts and sentences is accepted, and the contrary evidence, if any, is rejected. (People v. Estrada, 211 Cal.App.2d 722, 724, 27 Cal.Rptr. 605.)

At the outset, the contention that the grand jury indictment was defective because of a variance with the ultimate proof is untenable. The evidence upon the trial sustained the indictment. We find in the record facts which demonstrated reasonable and probable cause. The trial court properly denied appellants' motion under Penal Code, section 995. (People v. Williams, 27 Cal.2d 220, 226, 163 P.2d 692.)

It was not established that Richards or officers of the law generated in the appellants their original intent to commit criminal acts which they would not have committed but for such inducement. The accused only acted on their pre-existing criminal intent, and the defense of entrapment fails. (People v. Benford, 53 Cal.2d 1, 10, 345 P.2d 928; People v. Sweet, 257 Cal.App.2d 167, 170, 65 Cal.Rptr. 31.)

The evidence here does not show any seduction of innocent people into a criminal act or career by officers of the law or by the bank's investigator.

Even should defendants' uncontradicted testimony have tended to show that they reluctantly were induced to act by repeated requests, gestures of friendship, or appeals to sympathy, the triers of fact were not bound to believe it, nor is an appellate court required to reappraise its effect. (People v. Benford, supra, 53 Cal.2d 1, 345 P.2d 928; People v. Beem, 192 Cal.App.2d 207, 211, 13 Cal.Rptr. 238; People v. Moreno, 237 Cal.App.2d 602, 605, 47 Cal.Rptr. 287.)

Solicitation by a decoy to procure the counterfeit travelers checks is not entrapment as defined in criminal law. (People v. Makovsky, 3 Cal.2d 366, 44 P.2d 536, with some factual similarities to the present case.)

The employment of stratagems for the purpose of apprehending persons already engaged in criminal activities is not entrapment, even though police officers participate in them. (People v. Schwartz, 109 Cal.App.2d 450, 454, 240 P.2d 1024; People v. Burnett, 204 Cal.App.2d 453, 456, 22 Cal.Rptr. 320.)

Appellants would have been equally guilty of the violations charged, even if 'Danny' and 'Eddy' had in fact been what they pretended to be. (Cf. United Liquors, Inc. v. Department of Alcoholic Beverage Control, 218 Cal.App.2d 450, 455, 32 Cal.Rptr. 603.)

The negotiations established that appellants in fact could produce a stock of counterfeit travelers checks. From the standpoint of the bank, the offer to purchase $2,000,000 of such counterfeit checks was no doubt an attempt to discover the extent of appellants' counterfeiting operations, to perhaps retire the entire stock from potential circulation, and likewise to get the negative and...