People v. Bradley

• Decision Date: 16 July 1957
• Docket Number: Cr. 5831
• Citation: 152 Cal.App.2d 527,314 P.2d 108
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Esme Maxine BRADLEY, Defendant and Respondent.

Page 108

314 P.2d 108

152 Cal.App.2d 527

The PEOPLE of the State of California, Plaintiff and Appellant, v. Esme Maxine BRADLEY, Defendant and Respondent.

Cr. 5831.

District Court of Appeal, Second District, Division 1, California.

July 16, 1957.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., for appellant.

Forno & Umann, Joseph T. Forno, Harry M. Umann, Burton Marks, Los Angeles, for respondent.

WHITE, Presiding Justice.

The District Attorney of Los Angeles County filed an information wherein defendant was charged with violations of Subsections 1, 2, 3 and 4 of Section 337a of the Penal Code in that on or about August 28, 1956, she engaged in bookmaking; occupied premises for the purpose of bookmaking; receiving and pretending to receive a bet, and recording and registering bets.

Upon her arraignment defendant moved the court to set aside the information pursuant to Section 995 of the Penal Code. The motion was granted and defendant discharged. From the order setting aside the information the People prosecute this appeal.

The record reflects that at the preliminary examination evidence was presented to the committing magistrate that about 4 o'clock on the afternoon of August 28, 1956, defendant was arrested by deputy sheriffs Latimer and Bridges in Apartment A at 1452 West Gardena Boulevard, City of Gardena, County of Los Angeles.

Prior to the arrest, Officer Latimer placed a telephoned call to FAculty 11324, which number he had previously checked to determine its location. That telephone was installed at the aforesaid address. The telephone number was received from a confidential informant and the call itself was placed from a private residence two doors away. Officer Latimer talked to a female voice at the other end of the telephone and from a later conversation with the defendant, after the arrest, was of the opinion that she was the same person to whom he had initially talked when he called on the telephone. Latimer, after dialing the number FAculty 11324, and receiving an answer, stated, 'This is Bill for Dave. I want to bet 5 and 5 in the seventh race on Yalta.' The female voice said, 'O.K.', and asked, 'Who are you?'. Latimer said, 'This is Bill.' The voice stated, 'Yes, but who?' and Latimer replied, 'This is Bill for Dave down at the Normandie Club.' The voice said, 'Well, you should be calling on the other number, shouldn't you?', to which he replied, 'No, that is the number that Dave gave me.' She then said, 'Well, I don't know', and Latimer stated, 'Well, I will tell you what. You take the bet today and we will get straightened out for tomorrow.' She said, 'O.K.' and that was the end of the conversation.

After the conversation, Latimer went outside to the rear of the location, knocked on a door and stated, 'This is the deputy sheriffs, you are under arrest for suspicion of bookmaking.' After approximately ten seconds he knocked again and in a loud voice shouted that they were the deputy sheriffs. There was no response and force was then used on the back door. The officers went in and found the defendant seated inside the location with the telephone in her hand and a red ball-point pen in her other hand. She was sitting at the kitchen table. The officers found numerous professional type betting markers, a National Daily Reporter dated August 28, 1956, a scratch pad, numerous pencils, a telephone with the number FAculty 11324, a radio and Scotch tape in the immediate vicinity of the defendant. The National Daily Reporter dated Tuesday, August 28, was marked People's Exhibit 1 for identification. Six yellow cards held together by Scotch tape with ink notations were marked People's Exhibit 2 for identification. A stack of yellow cards similar to People's Exhibit 2, held together by a rubber band, was marked People's Exhibit 3 for identification. Latimer identified People's Exhibits 2 and 3 as having been first seen on the kitchen table at the place of the arrest on August 28th.

It was stipulated for the purposes of preliminary hearing that Latimer was an expert in bookmaking as conducted in Los Angeles County. In Latimer's opinion, People's Exhibits 2 and 3 are professional type betting markers. The National Daily Reporter (People's Exhibit 1) contains the races throughout the United States on certain days, it contains the names of the horses, the probable handicap positions, the weights and the probable odds. Latimer took certain notations from People's Exhibit 2 and explained them as meaning the following:

'There is a name Salami and directly below that there is a letter 'P'. Over the numeral '1' and to the right thereof there is a 462, and then a heavy line and then a 10.' In Lattimer's opinion this signified the fourth race at Del Mar Race Track, the second horse called 'Penney a Peck' and the 'P' directly over the numeral 1 means that the horse had placed, the numeral 10 is a $10 win wager on a horse in the fourth race at Del Mar Track. The officer had made a comparison of the notations on People's Exhibit 2 with the National Daily Reporter (People's Exhibit 1) and found on the 28th of August there was a horse named 'Penney a Peck' in the fourth race at Del Mar. The officer made other comparisons with the notations on People's Exhibit 2 and in his opinion they were notations on horses running throughout the United States on the date of the arrest.

While Officer Latimer was at the location the telephone rang and the witness answered it on many occasions. At 4:15 he answered the telephone and a man's voice stated, 'This is Al' and asked, 'Where is the girl?' Latimer said, 'She had to step out for a minute. She went down to the drug store to get some cigarettes. It is O.K. to give it to me.' The voice stated, 'Give me 10 to win and 10 to place on Miss Todd in the seventh race at Del Mar. Don't forget, this is for Al.' At approximately 4:19 a man named Georgie called and said, 'Give me in the eighth race Break the Ice, 5 to win and 5 to place and 5 to show', and he also asked, 'Where is the girl?' The two names mentioned, 'Miss Todd' and 'Break the Ice', were listed in the National Daily Reporter on that date.

Latimer had occasion to talk with the defendant on the date of the arrest. The conversation was held at the location of the arrest. She was questioned as to what she was doing there and she stated she was working a jigsaw puzzle. She was asked her name and she said, 'Max'. She was asked how long she had been bookmaking there and there was no answer. She was told she had been bookmaking there for approximately seven days and there was no answer. Latimer then told her she had been taking approximately between $7,000 and $9,000 a day in bets and there was no response. She was then told that the marks on the National Daily Reporter were in her own handwriting and there was no response. She was told that the marks on these betting markers were in her handwriting and that she wrote them. There was no response.

Defendant Esme Maxine Bradley testified that the officers had forced their way into the premises and that prior to that, about five minutes before, she had received a call from a male voice stating, 'This is Frank for Bill'; that she said, 'You must have the wrong number.' The voice said, 'No, it's all right. This is Frank, the floorman over at the Gardena Club. Bill gave me this number and told me to call it.' She said. 'Well, you had just better have Bill give you another number' and hung up.

She testified that the voice of Officer Latimer 'was not the same voice that had called.'

On cross-examination, the witness stated she did not know the telephone number at that location where she was arrested nor did she know to whom the telephone was registered.

The first question presented is whether there was reasonable cause for the arrest of the respondent and was the subsequent search and seizure lawful. We are satisfied that both queries must be answered in the affirmative. Conceding that the information given to the officer was not of itself sufficient to establish reasonable or probable cause for the arrest, search and seizure (Willson v. Superior Court, 46 Cal.2d 291, 294, 294 P.2d 36) nevertheless, in the instant case, the evidence presented to the court as herein set forth, as to the subsequent telephone conversation had by the officer with respondent, would justify the conclusion that reliance by the officer on the information theretofore given him was reasonable.

Penal Code, Section 836, subd. 1, authorizes an officer to make an arrest when a public offense is committed in his presence. This simply means that such an arrest may be made when circumstances exist that would cause a reasonable person to believe that a crime has been committed in his presence (Coverstone v. Davies, 38 Cal.2d 315, 320, 321, 239 P.2d 876). Acting as they do as guardians of the peace and security of the community and concerned at all times with crime and criminals in a complex society, it is manifest that the utmost that can reasonably be exacted of an officer who arrests without a warrant is that upon the circumstances with which he is confronted, he would be justified in making a complaint upon which a warrant of arrest might issue. In the case at bar, the officer telephoned and asked the person answering the call to place a bet on a certain race and the person replied, 'O.K.'. Under these circumstances and the inferences reasonably to be drawn therefrom can it be said that the officer was without justification...