People v. Gibson

• Decision Date: 28 July 1969
• Docket Number: Cr. 14616
• Citation: 79 Cal.Rptr. 693,275 Cal.App.2d 198
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bryan E. GIBSON, Defendant and Appellant.

Page 693

79 Cal.Rptr. 693

275 Cal.App.2d 198

The PEOPLE, Plaintiff and Respondent, v. Bryan E. GIBSON, Defendant and Appellant.

Cr. 14616.

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

July 28, 1969.

Hearing Denied Sept. 24, 1969.

Cohen, Whitfield & Osborne, Oxnard, for appellant.

Thomas C. Lynch, Atty. Gen., and William E. James, Asst. Atty. Gen., for respondent.

PER CURIAM.

In each of the first and third counts the defendant Gibson was accused of conspiring with Paul E. Griffin, Sr., and Paul E. Griffin, Jr., to commit the crime of bribery in violation of sections 165 and 67 1/2 of the Penal Code. ¹ In a nonjury trial he was found not guilty of those charges. The defendant Gibson, however, was found guilty of the offenses of grand theft from Paul E. Griffin, Sr., and Paul E. Griffin, Jr., as charged in the second and fourth counts. His motion for a new trial was denied. The proceedings were suspended without imposition of sentence and he was placed on probation for a period of three years on certain terms and conditions, one thereof being that he pay a fine of $5,000, together with a penalty assessment of $500. The appeal is from the judgment (order granting probation).

Included in the statutory crime of grand theft is the offense of obtaining property by false pretenses. (Perry v. Superior Court, 57 Cal.2d 276, 282--283, 19 Cal.Rptr. 1, 368 P.2d 529.) As stated in Perry (pages 282--283, 19 Cal.Rptr. page 5, 368 P.2d page 533): 'It is provided in Penal Code, section 484, that: 'Every person who shall * * * knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money * * * is guilty of theft.' Subdivision 1 of section 487 of the Penal Code provides, for instant purposes, that grand theft is committed when the personal property taken exceeds $200 in value. To support a conviction of theft for obtaining property by false pretenses, it must be shown: (1) that the defendant made a false pretense or representation, (2) that the representation was made with intent to defraud the owner of his property, and (3) that the owner was in fact defrauded in that he parted with his property in reliance upon the representation. (People v. Ashley, 42 Cal.2d 246, 259, 267 P.2d 271; People v. Jones, 36 Cal.2d 373, 377, 224 P.2d 353; see Perkins, Criminal Law, ch. 4, § 4, pp. 267--268.)'

The sole contention made by the defendant Gibson is that the evidence was insufficient to sustain the first element of that offense, namely, the making of a false pretense or representation to the Griffins on either of the occasions alleged (on or about September 20, 1964, and on or about October 15, 1965). ²

The evidence showed that the defendant Gibson, Mr. Griffin, Sr., and Mr. Griffin, Jr., joined together in a project for the development of approximately 92 acres of land in Chatsworth. The function assigned to the defendant Gibson related to the matters of zoning and land engineering. The land was purchased for $1,300,000. The escrow closed on April 4, 1964. The applicable zoning ordinance of the City of Los Angeles limited the number of dwelling units which could be erected on each acre of land. But if permission could be obtained for more units per acre, the value of the land would be greatly enhanced. The defendant Gibson began his efforts to obtain the necessary conditional use permit for a greater number of units, and on January 3, 1964, met with respect to that subject with the city councilman in whose district the land was then located.

After the planning commission of the city disapproved the application for the conditional use of the property, an appeal was taken to the city council. On October 19, 1964, the city council approved the desired conditional use. Ten councilmen voted favorably. In August 1965 the city attorney expressed the opinion that the permission as to the conditional use was no longer effective because construction had not been timely commenced. Thereafter a resolution was presented to the city council for the purpose of clarifying the terms of the original grant of permission. On November 10, 1965, the resolution received the approval of nine councilmen, but the city attorney ruled that ten affirmative votes were necessary. On December 14, 1965, a resolution clarifying the intent of the council to the effect that the conditional use was still effective was passed by the required ten votes.

The defendant Gibson succinctly states in his opening brief (references to the record being deleted herein): 'The theft charges against Gibson arose out of the fact that Griffin, Sr., and Griffin, Jr., each made available to Gibson $5,000 on October 1, 1964 (no theft alleged), $5,000 on October 15, 1964 (theft of over $200 alleged in Count II), and $7,000 on October 29, 1965 (theft of over $200 alleged in Count IV). As to Count II, on October 15, 1964, Gibson, Griffin, Sr., and Griffin, Jr., each made out a check to cash for $5,000 on one of his own corporations, the checks were cashed and the $15,000 cash was put in a safe at Gibson's disposal and was at Gibson's request given to him in several installments. As to Count IV, a similar procedure was followed on October 29, 1965, except that the amount involved was $21,500, $7,500 from Gibson, $7,000 from Griffin, Sr., and $7,000 from Griffin, Jr.'

Mr. Griffin, Sr., testified that after the adverse action of the planning commission the defendant Gibson told him and Mr. Griffin, Jr., that he would have to have some money, saying that he 'needed it for changing of the zone and for political purposes.' He did not tell Mr. Griffin, Sr., the specific use which would be made of the money. On one occasion, the defendant Gibson told Mr. Griffin, Sr., that he was not to know what use was being made of the funds. After the question arose as to whether the permission as to the conditional use had expired, the defendant Gibson told Mr. Griffin, Sr., that he would need more money for the same purpose, a portion of the witness' testimony being as follows: 'He said he had to take care of some of his political obligations and use the funds in connection with the zoning. I never knew where the money went.' Mr. Griffin, Sr., never gave the defendant Gibson permission to use the money for any personal purposes whatsoever.

A portion of the testimony of Paul E. Griffin, Jr., was as follows: 'Bryan (Gibson, the defendant) stated that we could go in front of the City Council and request that they clarify their intent when they issued the first special use permit. He stated that we contended that the time had not run out, that it was not the intent of the City Council that we were to have 180 days, but that we had a year to get our first map of record. And we did not agree with the City Attorney's ruling. He said in order to go in front of the council, that he would need--well, again, this is a general--this is not his specific conversation--he stated that he would need approximately $20,000 relative to going in front of the council the second time.'

Mr. Griffin, Jr., further testified as follows: 'Q. * * * And do you recall his telling you at this conversation * * * one, two or three weeks before October 1st, 1964, that he (the defendant) had made some preliminary inquiries and, 'I've contacted several people and I've indicated to them that they'd get paid, and I think before we get through with the commitments that I've made, and with others that will come up, it is going to run around $30,000.' Now, do you recall a conversation to that general effect? A. Yes, to that general effect, yes. Q. All right. And then didn't he also tell you that he would need the money in cash for the purpose of expediting this matter as that's the way they wanted their money? A. He said he would need the money in cash.'

Mr. Griffin, Jr., also testified as follows: 'Q. Do you recall also--you have also testified on direct examination that he (the defendant) said that, 'It's better if you don't know where the money was going,' or words to that effect. Do you recall you testified to that on direct examination? A. Yes, I know that--I don't remember the exact conversation or when it happened, but I was aware that this is--conversations that have taken place.' At a later point in his testimony the witness stated that the defendant said he was to use the money as he saw fit with respect to what they were trying to accomplish and that he was not going to have to account for it.

Every councilman or former councilman, except one who had died, who voted on any occasion when the matter was before the council, testified as a witness. The record is devoid of any evidence in the nature of an offer to bribe or bribery or any form of improper influence brought to bear on any councilman or public employee.

Mr. Tapking testified that his occupation was that of a professional planner. He was employed by the Griffins and the defendant Gibson from April 1963 until April 1966 as the director of planning with respect to the Chatsworth property. The defendant indicated to him that Mr. Menveg would be assisting on the case. With respect to his own duties, Mr. Tapking testified: 'My duties were the same on the project, your Honor. I would present the case, make the presentations before the Planning Commission and the City Council, present the facts, and, if the case was approved, then assist the engineer on the preparation of a tentative map in accordance with the case that we had. In addition, I was given the authority to hire any planning consultants or architect that I needed in conjunction with the work that was pursuant. Consequently, I did hire Hai Tan to assist us. THE COURT: Let me direct you now to your contacts with the public officials. What were your instructions? THE WITNESS: I had no instructions relative to the contacts I made beyond the four councilmen. I took that upon myself and asked Mr. Gibson for permission to talk to these councilmen...