People v. Asta

• Decision Date: 16 May 1967
• Docket Number: Cr. 317
• Citation: 251 Cal.App.2d 64,59 Cal.Rptr. 206
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Samuel Junior ASTA, Defendant and Appellant.

Page 206

59 Cal.Rptr. 206

251 Cal.App.2d 64

PEOPLE of the State of California, Plaintiff and Respondent, v. Samuel Junior ASTA, Defendant and Appellant.

Cr. 317.

Court of Appeal, Fifth District, California.

May 16, 1967.

[251 Cal.App.2d 67] Belli, Ashe, Gerry & Ellison, San Francisco, for appellant.

Thomas C. Lynch, Atty.Gen., Doris H. Maier, Asst. Atty. Gen., and Raymond M. Momboisse, Deputy Atty. Gen., Sacramento, for respondent

OPINION

GARGANO, Associate Justice.

Appellant was indicted by the grand jury of Sacramento County and ultimately convicted after jury trial of six counts of extortion in violation of section 518 of the Penal Code and one count of attempted extortion in violation of section 524 of the Penal Code. He appeals from the judgment of conviction.

Appellant operated a service in Sacramento County known as a fidelity shopping service which was offered to merchants in order to ascertain whether their employees were embezzling. Under this service appellant or members of his staff would make purchases at the client's store posing as casual shoppers and would observe the conduct of the client's employees. Suspicious activity would then be reported to the client, and if it appeared that an employee had been embezzling, he would be interrogated by appellant in the presence of the client. The interrogation was conducted pursuant to a provision of the service agreement which read as follows:

'In addition to the consideration set forth in the first paragraph hereof, you are authorized to interrogate on our behalf, any presently employed or past employed personnel in connection with violations of cash procedures, misappropriated funds and/or merchandise, and to take whatever action you deem necessary to recover same. Further, we authorize you to retain 50% Of all funds and/or of the cash value of all merchandise recovered by your efforts.'

Appellant does not challenge the sufficiency of the evidence in connection with Counts 2, 3, 5 and 7. Thus, a brief re sume of the facts as to these counts is sufficient. In each instance appellant, during the interrogation of an employee under investigation, accused the employee of theft and threatened him with criminal prosecution, jail, and loss of reputation; ultimately appellant secured a confession and the repayment of money. Moreover, in each instance the payment of money was an arbitrary sum set by appellant, and it was usually greater than the amount which the employee admitted stealing. Payment of this money was extracted from the employee with the promise that he would remain free if he reformed and made restitution.

The specific facts with respect to Counts 1, 4 and 6, when viewed in the light most favorable to the respondent, are substantially as follows:

Count 1--Attempted Extortion--Billy Hilton

Mr. Rancourt, the owner of the Carmichael Honda Company of Sacramento, contacted the District Attorney of Sacramento County in July 1965, with the complaint that he was experiencing shortages of funds at his place of business. After explaining what they had in mind, the members of the district attorney's staff requested him to contact appellant and act as if he were an employer whose employees were embezzling funds from him. In the meantme the district attorney's office contacted Billy Hilton, one of Mr. Rancourt's employees, and requested him to act as if he were stealing from his employer. Hilton was instructed to act frightened and to appear guilty during any interrogation by appellant. He was also instructed to admit that he had stolen money after a certain amount of interrogation.

On July 21, 1965, Mr. Rancourt contacted the appellant by telephone and made arrangements to hire him. On July 30 he was informed by appellant that Billy Hilton was stealing and an interview was suggested. At that time he told Mr. Rancourt not to say anything during the interrogation, but to just sit there and answer yes or no, and implied that Mr. Rancourt should answer in the affirmative.

Hilton was interviewed by appellant on July 31 in the presence of Mr. Rancourt. During the interview appellant accused him of stealing from his employer and pointed out that he would go to jail for such thefts. When Hilton proclaimed his innocence the appellant, among other things, stated that he was giving Hilton an opportunity to pay the money back; that he would have to pay it back anyway should he be lucky enough to get probation; that Mr. Rancourt had been losing $1,000 a month; that he could turn these thefts over to the bonding company, which would then calculate the amount owed and the employee would then have to pay back that amount; that Hilton would never get a job of responsibility the rest of his life; that he would be thrown in jail; that he had been investigation Hilton for many months; that he knew everything about him and his family and how he spent his money; and that if he (Hilton) lied appellant would call the district attorney's office and 'within the hour you will be in jail, mugged, fingerprinted and booked.' Finally, when Hilton admitted stealing $8 or $9 a day, appellant informed him that he calculated that the employee had stolen at least $4,762, and that this was the amount he had to pay. Appellant then dictated a confession, in which Hilton admitted the thefts in that amount. Thereafter, he informed Hilton that the amount had to be paid within 24 hours; otherwise, the bonding company would be notified, and he advised Hilton not to contact a lawyer as such action would merely cost him money and would result in public exposure of his misdeeds. Appellant even went so far as to suggest that the employee's wife should be called to a meeting so that she could be convinced of the thefts committed by her husband.

Count 4--Extortion--Jackson Barry Stevens

Jackson Barry Stevens was employed by the Kid-E-Korral as a shoe salesman and was interviewed by appellant on March 12, 1965. Appellant told him that he (Stevens) had taken money, and that appellant had cash register tapes which allegedly proved this theft. Stevens then asked appellant how much he supposedly had stolen, and appellant calculated the amount but Stevens replied that it was not nearly that much. Appellant replied, 'All right, we'll go to the District Attorney's office.' Stevens said, 'Oh, no, I can't stand that amount.' However, appellant promised to handle the problem confidentially and Stevens finally said, 'O.K. if it won't go any further I'll pay the $600.' Appellant dictated the confession which Stevens wrote out, and subsequently Stevens paid the $600. Stevens testified during appellant's trial that he had not embezzled or misappropriated funds from his employer, and that he paid appellant because he wished to avoid publicity and because of his fear that he would never get another job as a shoe salesman.

Count 6--Extortion--Edward R. Thomas

Edward R. Thomas, who was employed at Lawrence's Department Store, was interviewed by appellant and accused of stealing on February 13, 1965. After Thomas admitted that he had $240 in the bank which he had taken from the store, appellant said that they would call the police and that law enforcement people would take care of the case. Appellant picked up the phone and began dialing a number and told Thomas that he would get hold of the district attorney's office 'unless you want to confess.' Thomas urged that he not call the authorities, however, and appellant began to figure out how much money Thomas had taken. He came up with a total of $3,000. It was also mentioned that Thomas had stolen some clothing so the amount was upped to a total of $3,356. Appellant then dictated a confession and Thomas wrote and signed it. After the confession was signed, appellant called Thomas's father, Mr. Robert H. Thomas, and asked him to come to the store. Upon Robert Thomas's arrival he was confronted with his son's confession. The father stated he was unable to pay that amount, whereupon the appellant said: 'It means--it could mean San Quentin.' Robert Thomas obtained $3,000 from his brother, but before paying this amount to appellant he asked whether the payment would insure that his son would not be prosecuted. Appellant replied that it did so far as he was concerned.

Appellant's Contentions

Appellant presents four main contentions for reversal: that during the trial errors in law occurred which resulted in a miscarriage of justice; that there was insufficient evidence to justify the verdicts of the jury on Counts 1, 4 and 6; that the trial court erred in giving and refusing to give certain instructions to the jury; and that the prosecutor was guilty of prejudicial misconduct.

I--ERRORS

We will deal first with the alleged errors. These errors are (1) that the trial court erred in admitting evidence of alleged offenses not charged in the indictment, (2) that the trial court erred in excluding evidence of appellant's true modus operandi, and (3) that the trial court erred in refusing to allow appellant to call two members of the district attorney's office as witnesses with the guarantee that appellant would be permitted to cross-examine and impeach said witnesses.

1. Appellant concedes that under proper circumstances evidence of other crimes is admissible in a criminal prosecution. He apparently asserts, however, that the court erred in allowing into evidence testimony relating to six incidents not included in any of the offenses charged in the indictment. In this connection, he argues that these incidents did not show that he had committed other acts of extortion, but at worst indicated that he had been rude to persons suspected of stealing from their employers. Thus, he concludes that the evidence degraded him in the eyes of the jury and should not have been admitted. Respondent, on the other hand, contends that the crimes of extortion with which appellant was charged and for which he was convicted were predicated on his threatening his victims with...