People v. Goldstein

• Decision Date: 08 November 1955
• Citation: 136 Cal.App.2d 778,289 P.2d 581
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bill GOLDSTEIN, Defendant and Appellant. Cir. 5402.

Page 581

289 P.2d 581

136 Cal.App.2d 778

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bill GOLDSTEIN, Defendant and Appellant.

Cir. 5402.

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

Nov. 8, 1955.

Jess Whitehill, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Elizabeth Miller, Duputy Atty. Gen., for respondent.

ASHBURN, Justice pro tem.

Defendant Bill Goldstein was indicted for grand theft and conspiracy to commit grand theft. Also indicted and tried with him were Jay Rich and his wife, Betty Rich. Goldstein and Jay Rich were convicted. Betty Rich was acquitted. Defendant Goldstein made a motion for new trial which was denied. Probation was granted him and other proceedings in the case were suspended. He appeals from the order denying new trial and from the 'verdict and final judgment.' His is the only appeal with which we are now concerned. One Hyman Kean was also named as a conspirator, but was not indicted and became the prosecution's chief witness.

The substance of the charge was that Kean and one Mark Price were engaged in the perpetration of fake automobile accidents and collecting fraudulent claims from insurance companies based thereon; that Kean arranged with the defendants Rich to participate in such a fraud; that defendant Goldstein joined the conspiracy; that a prearranged collision was had between Goldstein's truck, driven by him, and Rich's automobile which he was operating that fraudulent claims for damages were presented by the Riches and the Keans to Goldstein's insurer, National Automobile and Casualty Insurance Company; that they resulted in payments by the insurance company of amounts totaling $2,750, part of which went to the defendant Goldstein.

Appellant's primary claim is that the evidence is insufficient to warrant a finding of conspiracy and in the absence thereof there could be no finding of the consummation of the grand theft. The rule which must guide us in examining this contention is stated in People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911, 916, as follows: 'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt. "* * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury." See also People v. Gutierrez, 35 Cal.2d 721, 727, 221 P.2d 22; People v. Hatton, 114 Cal.App.2d 195, 196, 249 P.2d 901. We therefore adopt in our statement of facts that evidence which tends to support the judgment, rather than any conflicting testimony which was designed to prevent such a result. The following statement is based principally upon the testimony of Hyman Kean.

Kean, who had known Goldstein and Rich for years, went with Mark Price on or about July 27, 1953, to see the Riches, asked Jay Rich to go in on an accident which would be set up and said the money that was to be derived therefrom would be split three ways. Price told him he would have another party hit a car and the Riches would be participants in the accident; that Mr. and Mrs. Rich would occupy the automobile that would be hit and they were to be injured. Reference was made to the insurance company and the splitting of the moneys received. Kean was to get a commission for introducing the Riches to Price. On or about August 14th there was another conversation between the same persons wherein it was said that after the accident the person that was to be hit would go to the hospital; that that would look better and if there was another party involved that would bring in more money. Price again indicated that Mr. Rich was to go to the hospital and Mrs. Rich was to take a part in the accident. The exact manner in which it was to be brought about was not stated in detail. Rich, the husband, said that if it was all right, if Kean thought it safe, he would take part in it, and he was assured that Price had made many cases before, that he had been at it for many years and had never had any trouble.

Shortly before August 15th, Kean and Price called at Goldstein's market to see him, but he was out. Soon thereafter Kean went alone to see Goldstein, who was busy waiting on customers in his market (at Fairfax and Oakwood in the city of Los Angeles), but nevertheless carried on a running conversation. Kean asked if he had insurance on his car. Defendant replied in the affirmative. He was then asked if he would go in on an accident with Kean and he made no definite reply, just listened. It was explained to him that there would be three persons included in the accident, that in order to get money he, Goldstein, would have to hit a car and if there were three people involved that the money would be split three ways. Asked if he had a car or a truck, defendant said he had both, and Kean suggested that the truck would be preferred. Shortly thereafter, Kean and Goldstein had another conversation at the market, and the latter was asked if he would come in on an accident. He said: 'What is it; how would it take place?' and was told that several people would be involved and he would get one-third of the money. While the details of the proposed accident were not spelled out, Kean said he would have a party in the car and Goldstein would arrive from the back and hit the car lightly, not to hurt anybody. Goldstein made no audible commitment, but when asked if he would go in on the venture he nodded his head up and down, in an affirmative manner.

Shortly before the time arrived for perpetrating the collision Price, who had been managing the enterprise up to that date, got into an argument with Mrs. Kean, who ordered him out of her home, and thereafter Mr. Kean took over the conduct of the venture. On the evening of August 19th the Riches went to the Kean residence and Mr. Rich was told by Kean about the argument with Price; also that he, Kean, had somebody other than Price's party in mind and would call him; that he knew a fellow that he had talked to a few days before who had nodded his head. He asked Rich if he would go through with the accident that night and was told that it was all right with Rich if it was all right with Kean and if he could get the proper party to do the hitting. Then Kean suggested to his wife that they go do some shopping. He had previously learned from defendant's brother, Joe Goldstein, that defendant customarily closed the market about 9:00 o'clock on alternate evenings and then drove south on Fairfax to Venice Boulevard on his way home. Kean on this occasion suggested that they go to Fairfax to shop and told Rich he would do the shopping while they were sitting in the car and he would call 'this party' about the accident. Rich agreed. The four of them, Kean, Rich and the two wives, then drove in Rich's Oldsmobile to a place on Fairfax Avenue which was between Olympic Boulevard and Pico Street, and parked the car on the west side of the street facing south. This was opposite the Bagel Delicatessen and Restaurant, which was on the east side of the street. Kean then crossed the street, went into the Bagel, made a telephone call, using the number of Goldstein's market; when someone answered he asked to talk to Bill Goldstein, was told to hold the wire a minute; then Goldstein answered te call, Kean recognized his voice and said: 'This is Hy. I am down at Pico and Fairfax.' Also: 'Bill, I am down here on Fairfax between--right across from the Bagel Delicatessen Restaurant and I want you to come down and I will be over there and, well, I am there right now, and I want you to come down there soon.' And, 'give me a clopp' which, according to the witness, was a Yiddish expression meaning 'hit me.' Goldstein said 'Okay' and the fact that he understood the word 'clopp' is evidenced by his prompt compliance with the request. In about 10 minutes Kean, who had come out of the restaurant and was in front of it on the east sidewalk, saw Goldstein's truck, which he recognized, coming southerly on Fairfax at a rate of about 20 to 25 miles an hour. Rich was at the wheel of the Oldsmobile parked at the west curb. When Kean saw the truck approaching he gave Rich a signal of some kind, Rich pulled out from the curb into the path of the truck which hit his car in the left rear and according to Goldstein's later statement caused it to travel toward the west curb, ending up with the front end on the sidewalk. Kean testified that he had no recollection of having given a signal to Goldstein, although he definitely did give one to Rich. In a statement later given by Goldstein to the adjuster for the insurance company he said that as he approached the point of the collision he looked to the east briefly, then turned his head and found the Rich car directly in front of him. It is true in a criminal case as in civil actions that a statement against interest made by a party constitutes original and independent evidence of the facts so stated. People v. McGoldrick, 107 Cal.App.2d 171, 174, 236 P.2d 597; 19 Cal.Jur.2d § 397, p. 136. It is fairly inferable that Goldstein saw the signal given to Rich, but regardless of that he knew what he was to do, he hit the intended car and at the place desired by Kean. Immediately after the impact Kean crossed the street and Goldstein got out of the truck and went to the Rich car. Mr. Rich was slumped down with his head over to the side near the door, groaning, moaning and seemed to be in pain. His wife testified that 'he grabbed for his head and started to groan. * * * I didn't know where he had been hit or what had hit...