People v. Goldstein

• Decision Date: 27 November 1956
• Docket Number: Cr. 3241
• Citation: 146 Cal.App.2d 268,303 P.2d 892
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent. v. Edward H. GOLDSTEIN, Defendant and Appellant.

Page 892

303 P.2d 892

146 Cal.App.2d 268

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

Cr. 3241.

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

Nov. 27, 1956.

Rehearing Denied Dec. 12, 1956.

Hearing Denied Dec. 27, 1956.

Morris Oppenheim, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., for respondent.

PER CURIAM.

Appellant was found fuilty by a jury on both counts of an information, the first of which accused him of attempted violation of Penal Code Section 288a committed on or about November 1, 1953 with Billy Hoss, and the second violation of section 288a committed on the same date with John Ritesman, and was sentenced to San Quentin, the sentences to run concurrently. He appeals from the judgment on both counts asserting mainly with respect to the first count that there was no evidence of facts constituting a punishable attempt to commit the alleged offense, nor that any such act was committed about November 1, 1953, and with respect to the second count, that he was convicted on uncorroborated evidence of one or two accomplices.

The only accusatory evidence was the testimony, to the following effect, of Hoss and Ritesman. In November 1953, Hoss was 20 and in the Navy, Ritesman a cement mason of 22 out of work. Both testified that about November 1, 1953, they together visited defendant after midnight at his home in Los Altos following an appointment made by telephone. Hoss testified that he had been there several times before and that he was friendly with defendant, Ritesman that he had once before seen defendant when somebody showed defendant's home to him, but that he did not know him personally. They were received by defendant in his living roon. There was nobody else present. Hoss introduced Ritesman to defendant. They had some conversation and drinks and then defendant said he wanted to talk to Bill (Hoss). Hoss went with him into a bedroon. Hoss testified that defendant asked him about Johnny (Ritesman). In the course of the conversation he asked questions which Hoss understood to mean whether Ritesman would consent to anything. Asked whether he knew a short word for homosexual acts, he said that he had heard it as a 'blow job'; that he did not remember that defendant had said it like that, but that the way it was put was if he would consent. Hoss answered that he did not know and that he would have to find out for himself. When asked what defendant did what respect to Hoss himself he said: 'Well, one time he kind of got a little funny with me, you know, patting my legs, and, you know, tried to play around and everything. He was going up my leg; in other words like I was a girl and had intentions.' Hoss moved away and told him that he didn't like any of that sort of thing. On cross-examination Hoss testified that this patting and the rebuff had not taken place the evening when he visited defendant with Ritesman, but the first time he visited defendant to swim in his pool in the summer of 1952. When Hoss and defendant came back to the living room they had another drink and then defendant said he would like to talk to Ritesman. They went into the bedroom and there and them, according to the testimony of Ritesman, the offense took place. Ritesman first resisted somewhat but when defendant persisted he gave way voluntarily and accepted ten dollars from defendant before they went back to the living room. According to Hoss, defendant and Ritesman stayed away half an hour or more. Hoss testified that when they left defendant gave him also ten or fifteen dollars. It was brought out in the cross and redirect examination of Hoss, that Hoss and Ritesman went there because they were broke and needed some money. Hoss told Ritesman that he would probably get some money and why. When Hoss phoned defendant that he was coming, defendant asked him whether he was going to bring somebody with him. 'I said probably, because before I always brought somebody with me. I didn't want to go alone and that was the deal.' One of the reasons given why he did not wish to go to defendant alone was that then he would have to fight all day to stay away from him. Defendant paid him to come up there. 'I mean he figured if I came there would be some other guys.' It was quite a long time ago that a boy had introduced him to defendant. Since that time he had made many a trip to defendant's house with sailors from Moffett Field and such boys, and nearly every time he went he got money. He denied, however, that there was an understanding that he was supposed to receive money for bringing the boys up there. He did not know whether anything wrong or ungentlemanlike went on there, although there were a few remarks made and everything. He didn't speak to Ritesman about a blow job or such. Ritesman also denied that any such thing had been discussed with Hoss. Defendant took the stand, confirmed the visit of the boys in the living room but denied everything else. A sister-in-law of defendant testified that since October 5, 1953 until some time in 1954 she had been living at defendant's house with her three children; that they occupied both bedrooms and during that period were never absent at night. Defendant slept in a trailer.

It is undisputed that Ritesman, who voluntarily consented, was an accomplice, People v. Ellis, 137 Cal.App.2d 408, 413, 290 P.2d 266; People v. Battilana, 52 Cal.App.2d 685, 695, 126 P.2d 923, and that under Penal Code Section 1111 his testimony required corroboration. The court so instructed the jury. Appellant contends that the testimony of Hoss was insufficient as corroboration because it required the interpretation and direction of Ritesman's testimony in order to give it value and because Hoss himself was an accomplice having aided and abetted the commission of the act with Ritesman as a procurer. It is true that the corroborative evidence must be in itself of an inculpatory character without the aid of the testimony which is to be corroborated. People v. MacEwing, 45 Cal.2d 218, 225, 288 P.2d 257; People v. Garrison, 80 Cal.App.2d 458, 461, 181 P.2d 738. However, such is the case with the testimony of Hoss apart from the question whether Hoss himself was as accomplice. The corroborative testimony that after midnight defendant received in his home a young man he concededly did not know, together with a mutual friend, that he asked that friend in veiled terms whether the man would consent to homosexual acts, that he thereafter took the unknown young man to a bedroom and stayed there with him for half an hour or more leaving the friend alone, and that when the friend left he gave him ten or fifteen dollars is clearly inculpatory independent of any further evidence. It does not show exactly what act took place in the bedroom, but the corroborating evidence need not establish the actual commission of the offense, the corpus delicti. People v. Yeager, 194 Cal. 452, 473, 229 P. 40; People v. McNamara, 103 Cal.App.2d 729, 740, 230 P.2d 411. It is sufficient that it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness, who must be corroborated, is telling the truth. People v. MacEwing, supra, 45 Cal.2d at page 224, 288 P.2d at page 260. The distinction from People v. Robbins, 171 Cal. 466, 154 P. 317, on which appellant relies, is illuminatory. There the corroborating evidence was only that the defendant and the boy, his alleged accomplice in the sex violation, after a game of tennis went to a bathroom, locked the door, pulled the frosted glass window down and let the water run. The court held that there was nothing unnatural or suspicious in this testimony which could well relate to just washing up after a game. The same can certainly not be said of the corroborative evidence in the case before us.

However, a serious question is presented by appellant's contention that Hoss himself was an accomplice. The testimony of one accomplice cannot corroborate that of another. People v. Clapp, 24 Cal.2d 835, 837, 151 P.2d 237 and cases there cited. An accomplice, defined in Penal Code Section 1111 'as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given', includes 'all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present.' Pen.Code § 971; see also § 31. In this connection to aid and abet means to instigate, encourage, promote or aid with guilty knowledge of the wrongful purpose of the perpetrator. People v. Johnson, 99 Cal.App.2d 717, 732-733, 222 P.2d 335; People v. Best, 43 Cal.App.2d 100, 105, 110 P.2d 504. Accordingly, it has been held that a person who procured opportunity for a sex crime (statutory rape) by providing a room with knowledge of the illegal purpose for which it was to be used, aided and abetted the crime and was punishable as a principal. People v. Wood, 56 Cal.App. 431, 205 P. 698. The aider and abetter is not only guilty of the crime the contemplated commission of which was known to him, but also of the natural and reasonable or probable consequences of the acts which he knowingly aided or encouraged. People v. Beltran, 94 Cal.App.2d 197, 206, 210 P.2d 238; People v. Etie, 119 Cal.App.2d 23, 28, 258 P.2d 1069; People v. King, 30 Cal.App.2d 185, 202, 85 P.2d 928; People v. Simpson, 66 Cal.App.2d 319, 328, 152 P.2d 339...