People v. Carter

• Decision Date: 29 May 1961
• Docket Number: Cr. 1559
• Citation: 13 Cal.Rptr. 541,192 Cal.App.2d 648
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Willis E. CARTER, Defendant and Appellant.

Page 541

13 Cal.Rptr. 541

192 Cal.App.2d 648

PEOPLE of the State of California, Plaintiff and Respondent, v. Willis E. CARTER, Defendant and Appellant.

Cr. 1559.

District Court of Appeal, Fourth District, California.

May 29, 1961.

Rehearing Denied June 22, 1961.

Hearing Denied July 26, 1961.

Willis E. Carter, in pro. per., for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Judge.

In an amended information, appellant Willis E. Carter and defendant Charles Coldiron were charged with conspiracy, in that on April 4, 1959, they did falsely and maliciously conspire and agree, together and with Edward J. Greenwell and diverse other persons, to falsely and maliciously indict and cause to be indicted another person, to wit, Gerald Grant Graham, for a crime, and to procure him to be charged and arrested for a crime, in violation of Penal Code, § 182, subdivision 2. The overt acts charged are: (1) that on May 29, 1959 they caused a report to be filed with the police department that a pistol and other property had been stolen from a parked car in Newport Beach; (2) that on May 31, 1959 they caused to be placed before the police chief information that a certain unnamed person was carrying on illegal activities and was keeping illegal articles in a vehicle bearing license number HUS-661; (3) that on June 12, 1959, they mailed a letter to the police of having witnessed a theft from a vehicle and giving the license number of the thief's car as HUS-661; (4) that on June 18, 1959, they gave a report to the police of contraband in a certain car and its location.

Count II charged appellant Carter and defendant Coldiron with conspiracy, in violation of Penal Code, § 182, subdivision 5, on April 4, 1959, in that they gave false evidence of violation of conditions of parole by said Graham to cause him to be returned to prison. The overt acts consisted of: (1) relating certain facts to a parole officer; (2) on May 29, causing a report to be made to the police that a pistol and other property had been stolen from a parked car; (3) on May 30, giving information to the police that a person was carrying on illegal activities, and that the said individual kept contraband in a car bearing license number HUS-661; (4) on June 12, mailing a letter to the police reporting theft from car by the operator of a vehicle with license number HUS-661; and (5) on June 18, notifying the police of contraband in a certain car and its location.

Carter was also alleged to have suffered prior convictions for the felonies of grand larceny, first degree burglary, attempted grand theft, and assault with a deadly weapon, and with serving terms of imprisonment in the state prison therefor. Defendant Carter, represented by counsel, entered a plea of not guilty to Counts I and II. Carter admitted the prior felony convictions as charged. The information was dismissed as to defendant Coldiron. The jury returned a verdict of guilty on both Counts I and II as to Carter, hereinafter referred to as 'defendant.' A motion for a new trial was denied. He was sentenced to state prison on each count, sentences to run concurrently.

Evidence

In his brief, defendant Carter concedes (without admitting) that the evidence establishes that overt acts 2, 3 and 4 in Count I, and overt acts 3, 4 and 5 in Count II have been proven as against defendant, but claims that they were solely and directly committed by defendant and that there is no evidence that any other person, named or unnamed, had a part therein and accordingly argues that there could be no conspiracy to commit said acts. Citing such authority as People v. Talbott, 65 Cal.App.2d 654, 151 P.2d 317; People v. MacMullen, 134 Cal.App. 81, 82, 24 P.2d 794; People v. Comstock, 147 Cal.App.2d 287, 294, 305 P.2d 228.

Appellant then recites that as to overt act, 1, Count I and overt act 2, Count II, the evidence clearly shows that two of the parties named, Coldiron and himself, were involved in this transaction, but claims they were not acting in concern or according to a common scheme or plan and with a corrupt intent. As to overt act 1, Count II, he claims the conflict of evidence in this respect is predicated on conclusions and therefore does not constitute a real conflict, particularly as to the allegation as to false evidence being used to cause Graham to be returned to prison. Citing such authority as People v. Flack, 125 N.Y. 324, 26 N.E. 267, 269, 11 L.R.A. 807; People v. Bowman, 156 Cal.App.2d 784, 320 P.2d 70.

The evidence shows that defendant Carter, who had been previously convicted of felonies and served time therefor in state prison, ran a tire-mold casting business in Lynwood. He had several employees, including Charles Coldiron and Edward J. Greenwell, who were alleged to be coconspirators. Defendant's business partner was Mary Skolich; another employee was James Carr. Carter's wife knew a Mrs. Lester (also referred to as Mrs. Ebersole) who had a daughter named Fran Lester. Fran had a boyfriend named Jerry Graham who was on parole from the state prison. He had several prior convictions on check charges and had three children by a former wife whom he was not supporting. Apparently Fran's mother was opposed to this relationship. Defendant and Mrs. Ebersole met and discussed this situation as to how it could be broken up, for fear of Fran becoming a delinquent. As a result, Mrs. Ebersole and defendant visited Louis P. Carney, Graham's parole officer, and fully discussed the matter and related Graham's past and present conduct and record to him and indicated Graham was not suitable to be on parole. At that time, Carter falsely represented that he was Mrs. Ebersole's attorney and he left a letter with Carney directed to the chairman of the adult authority, setting forth many claimed reasons why his parole should be revoked. Carter claimed that Graham was not really married to Fran, and accordingly they were living an adulterous life. Apparently they had been married in Mexico before Graham's divorce had become final and they were remarried in June 1959. In the last week in May, Fran received a purported bulletin from the police, giving Graham's police record. It was not a true record. Fran showed it to her husband and they turned it over to the police.

About May 27, 1959, Graham reported to the Newport Beach Police Department indicating there was a rumor that the police were looking for him. A few days later the chief of police received, on his doorstep, an anonymous letter, stating in general that the writer's teen-aged daughter had become involved in smoking marijuana cigarettes through inducement of a suspect known as Jerry (Graham's first name). It gave his automobile license number as HUS-661. A car bearing this number was driven by Graham. It also related that his address was 2411 1/2 East Sixteenth Street, Newport Beach. The letter stated that this person kept a narcotics outfit in a bundle underneath the rear seat of his car and kept heroin in a pocket of his suit coat hanging by the rear window. It also claimed that he possessed a gun which he kept in the car. A telephone call, apparently emanating from Carter's place of business, was received by one McCarthy, a used car dealer, purporting to be a call from the police department asking if Graham had purchased a certain car from him and informing him that it was being used for illegal purposes and reference was made to 'a man named Graham.' Later, McCarthy received a letter containing a purported police record of Graham.

Several weeks later, the police received another letter, dated June 12, signed 'James Carr, P.O. Box 1445, Salinas,' stating that about May 28 he and his wife were en route to San Diego and stopped at Howard's Restaurant; that his wife went in and he lay down in the rear seat of the car to rest; that a man driving a car with license number HUS-661 was looking in the glove compartments of several parked cars nearby and took articles from one of them. It appears that Charles Coldiron had previously reported to the police that a pistol belonging to him had been stolen while he was parked at Howard's Restaurant that night. The serial number of it was given to the police by Coldiron. On June 18, the police went to 2411 1/2 East Sixteenth Street to contact Graham. Graham, after questioning, insisted on the police searching his car. Under the rear seat was found a Browning automatic pistol with the same serial number reported by Coldiron. A narcotics kit was found under the seat of that automobile. The car was taken to the police station for further search. At that time, defendant Greenwell was noticed observing the search from across the street and he had a conversation with one of the officers at that time. Later that day, the police received a telephone call stating:

'This morning there were two officers up at 2409 16th Street. They shook down the guy's car, but apparently didn't find anything. My interest in the case is that I am a neighbor. I live right across the court from that guy, and last week I was in the garage, I happened to notice that under the rear seat of his automobile he has a gun and a narcotics kit.'

The person calling refused to identify himself. The police officer, after hearing defendant Carter talking, stated that he believed it to be the same voice. Telephone records substantiated certain calls on given dates as originating from Carter's place of business. The officer went to Carter's place of business and discovered Coldiron working there. He and Carter were arrested and several articles, including a typewriter and paper, were seized and comparisons made of the typewritten letters, and they were identified as having been written on that type of machine. These letters and other documents, including a similar letter sent to the parole officer, were introduced at the preliminary examination in the Newport...