People v. Conti

• Decision Date: 21 August 1967
• Docket Number: Cr. 11523
• Citation: 253 Cal.App.2d 733,61 Cal.Rptr. 424
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert R. CONTI, Defendant and Appellant.

Page 424

61 Cal.Rptr. 424

253 Cal.App.2d 733

The PEOPLE of the State of California, Plaintiff and Respondent, v. Albert R. CONTI, Defendant and Appellant.

Cr. 11523.

Court of Appeal, Second District, Division 2, California.

Aug. 21, 1967.

Forno & Lewis and Arthur Lewis, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Andrea S. Ordin, Deputy Atty. Gen., for respondent.

ROTH, Presiding Justice.

Appellant was charged by information in four counts with violations of Penal Code, § 337a, subdivisions 1--4, book-making. He waived jury trial. The court found him guilty as charged in Count I (§ 337a, sub. 1, book-making and pool-selling); Count II, (§ 337a, sub. 2, keeping and occupying premises for book-making and pool-selling); and Count III (§ 337a, sub. 3), (receiving, holding and forwarding money in book-making pool-selling.) He was found not guilty on Count IV (§ 337a, sub. 4, recording and registering bets.)

Appellant was sentenced to county jail for 180 days on the three counts, sentences to run concurrently. The sentence was suspended. Appellant was placed on probation for one year, and as a condition of probation, was required to pay a fine of $250.

The sole point raised and argued is the sufficiency of the evidence to sustain the verdicts.

At approximately 1 p.m. on January 7, 1965, Officers Knieriem and MacKenzie of the Los Angeles Police Department Central Vice Unit and Glen Groves, a special agent for the Department of Water and Power, arrived at the Department of Water and Power Shops on North Main Street to investigate alleged book-making activity.

The three men, dressed in plain clothes, staked out the blacksmith shop for about two hours. Officer Knieriem testified he observed numerous people going in and out of the shop, and a number of people reading race sections of racing publications in the general vicinity. Knieriem saw Eulas Klines ¹ seated outside the blacksmith shop reading the National Daily Reporter (a racing publication) and observed money and small slips of paper pass between Klines and persons who talked to him. He did not see appellant or Apodaca on this date, and left when Klines went into the blacksmith shop.

At approximately 11:30 a.m., on January 8, Officer Knieriem returned. He observed Klines sitting outside the blacksmith shop and passing the National Daily Reporter to various persons who made notations on slips of paper and handed them to Klines with money.

Just before noon, Klines entered the shop. Officer Knieriem went into the room adjoining the blacksmith shop from which he could see into the room Klines had entered. He saw appellant and Apodaca playing cards and another man reading the racing section of the Herald-Examiner. Right after the noon whistle sounded, the unnamed man handed some money and a slip of paper to appellant. Appellant took some bills out of his pocket and added this money to it; he gave Apodaca the slip of paper, which Apodaca put in a cigar box in a storage cabinet.

At about 1:10 p.m., appellant and Apodaca came out into the yard and began listening to a transistor radio. They listened to what sounded like race results from Santa Anita. Appellant related information from the radio to Apodaca who made notations on a pad. Appellant then called Klines. He had a short conversation with him, and handed him some money. Klines went to several different people in the area and gave them money, receiving in turn slips of paper. The unnamed man previously observed reading the race section of the Herald-Examiner, came up to appellant and gave him $3.00.

Officer Knieriem contacted his sergeant. The sergeant and Officers Knieriem, MacKenzie, and Murren entered the blacksmith shop and arrested appellant, Apodaca and three other persons for gambling. ² Officer Knieriem advised appellant of his constitutional rights, and appellant stated: 'I know what my rights are. Don't touch anything on the desk.' At the police station, about 15 minutes later, appellant said: 'We have been making book up there only about two weeks, and bookmaking has been going on for years, and no one has ever done anything about it.'

Appellant had $332.02 in his wallet when arrested. Approximately $66.00 was found at the water and power yard. Officer Knieriem also picked up in the shop several copies of the National Dailey Reporter, portions of the Herald-Examiner and Los Angeles Times, and a cigar box containing slips of paper including one headed 'Santa Anita' which in his expert opinion, were non-professional 'betting markers.' In addition, a large pad of paper containing names of horses and amounts paid to win, place, or show was also found, along with two books with appellant's name on them, on one page of which was written 'Place, 26.00 tops,' and 'Show, 13.00 tops.'

In reviewing the evidence to determine its sufficiency to support a judgment, we begin and end with the established rule that an appellate court must assume, in favor of the judgment, not alone the facts established by direct testimony, but in addition, the existence of every fact which may reasonably be deduced or inferred from the testimony. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Chavez, 240 Cal.App.2d 248, 251, 49 Cal.Rptr. 425) 'To warrant reversal, it must be made clearly to appear that, on no hypothesis, is there sufficient substantial evidence to support the conclusion of the lower court. (Citations.)' (People v. Moseley, 240 Cal.App.2d 859, 863, 50 Cal.Rptr. 67, 70.)

Appellant contends that to constitute a violation of section 337a, sub. 1, 'the record must reflect some activity which would constitute a violation of some other Subdivision thereunder.'

The evidence outlined supports a finding that appellant and others accepted wagers on horses, followed the races to determine their outcome, made payments to those who placed winning bets with them and were generally engaged in book-making. Subdivisions 2--4 of the section 337a specify independent violations based on the Manner in which prohibited book-making activity is carried out. While in the course of book-making one or more of these subdivisions may be violated, subdivision 1 prohibits the general activity of book-making, and may be violated irrespective of explicit violations of other subdivisions....