People v. Gordon

• Decision Date: 24 April 1975
• Docket Number: Cr. 24383
• Citation: 47 Cal.App.3d 465,120 Cal.Rptr. 840
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Donna Y. GORDON, Defendant and Appellant.

Page 840

120 Cal.Rptr. 840

47 Cal.App.3d 465

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donna Y. GORDON, Defendant and Appellant.

Cr. 24383.

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

April 24, 1975.

Hearing Denied July 3, 1975.

[47 Cal.App.3d 469] Paul M. Posner, Beverly Hills, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow, Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

COMPTON, Associate Justice.

Defendant was indicted by the grand jury of Los Angeles County for one count of violation of Penal Code section 653f (solicitation of a bribe). Prior to trial defendant moved under Penal Code section 995 to set aside the indictment. That motion was denied and in the jury trial which followed defendant was found guilty as charged. She appeals the judgment of conviction and among other things contends that her motion under section 995 should have been granted.

The indictment alleged that on or about the 3rd of January 1973, the defendant did 'willfully and unlawfully and feloniously solicit another to offer, accept and join in the offer acceptance of a bribe.' According to the evidence the person alleged to have been solicited was Officer Joseph Stanley of the Los Angeles Police Department who was at the time in question assigned to the narcotic detail.

FACTS

Defendant was an attorney at law and shared office space with another practitioner Mr. Bane. Mr. Bane had formerly been a member of the staff of the City Attorney of the City of Los Angeles. During that tenure he had become acquainted with Officer Stanley.

At some point late in the year 1972, defendant contacted Mr. Bane and stated that she knew where there was a two or three pound quantity of cocaine to be seized. She inquired whether Mr. Bane believed Officer Stanley would be interested and whether he could be trusted. Mr. Bane replied in the affirmative. Defendant asked Mr. Bane to contact Officer Stanley.

Mr. Bane mentioned the matter to Officer Stanley and the officer expressed an interest in seizing the cocaine. Mr. Bane advised the defendant of Officer Stanley's interest.

In late December of 1972, the defendant called Officer Stanley at the Administrative Narcotics Division of the Los Angeles Police Department and inquired if he had discussed with Mr. Bane the two or three pounds of cocaine and whether he was interested in seizing the cocaine and making an arrest. Officer Stanley stated that he was an arrangements were made for the defendant and Officer Stanley to meet. Defendant gave the officer her business and home telephone numbers.

On January 3, Officer Stanley called defendant at her office and a meeting was arranged at the building of the Los Angeles Community College Board of Trustees. That same afternoon Officer Stanley went to the agreed location. He saw the defendant sitting in the gallery observing a meeting of the board. Defendant nodded to Officer Stanley and the two went to a coffee shop located in the building.

In the conversation that followed defendant told the officer that she had a client who 'wanted someone taken care of.' The officer asked her if she meant 'killed' and she replied 'no' that she meant 'discredited'. She identified the person whom her client wanted discredited as Monroe Richman, a member of the Los Angeles Community College Board of Trustees. She stated that her client was highly politically oriented and that he, the client, had inquired of her if it could be arranged to have Mr. Richman 'planted' which a quantity of narcotics and then arrested. Defendant also stated in that conversation that 'she wouldn't even consider a situation like this unless it was worth money for everybody concerned.' Defendant suggested that narcotics be planted either on Mr. Richman's person or in his car. Defendant offered to provide Officer Stanley with information upon which to effect the arrest of a person in possession of two or three pounds of cocaine and then asked if it would be possible to take a portion of that seized cocaine and plant it on Mr. Richman. Officer Stanley replied that it was possible. Defendant indicated that 'it might be worth around $10,000.' There were subsequent conversations between the two concerning the acquisition of the cocaine. On January 10, 1973, Officer Stanley called the defendant at her home and surreptitiously recorded the conversation which in part went as follows:

'STANLEY: I wanna talk about the original 2 to 3 pounds.

GORDON: Um-hum.

STANLEY: All right. We gotta have that for our supply.

GORDON: I don't know if I'm gonna be able to get that.

STANLEY: You don't think--you don't think you're gonna be able to get that?

GORDON: I'm not sure about that. Assuming I can't get that, can we still do this other thing?

STANLEY: Well, assuming you can't get the 2--3 pounds of coke, I don't know how we can come upon with any other cocaine.

GORDON: Maybe the price will just raise a little bit on the whole deal.

STANLEY: Well, can your man bear the traffic?

GORDON: I don't know what the traffic is.

STANLEY: Well, I don't either. What do you think?

GORDON: Well, I'm thinking in terms of 10 ground.

STANLEY: For the whole--For the whole thing 10 grand?

GORDON: Um-hum. That too little?

STANLEY: Well, then what do you and I do with it?

GORDON: I don't care. I'll take a third, you can take three-quarters. You can take--give me a quarter. I don't care. Whatever you think is fair.

STANLEY: All right.

GORDON: Uh--You know I'm not out to--to take 50. I'm not out to take very much at all. It depends.

STANLEY: Okey, well--

GORDON: I'd like--I'd like--uh--you know--a couple--$2500.

STANLEY: All right. But I--

GORDON: I didn't--matter of fact I would like to--if you think that's not enough we may have to go out and make a purchase and let's up it.

STANLEY: Well, I don't know. You're right. We may have to make a purchase.' (Emphasis added.)

The following day the officer called defendant at her office. In that conversation defendant told the officer that she had decided not to be a party to this scheme, that she felt she had a political career ahead of her and she did not want to take a chance on ruining that career. Subsequently the officer made several more contacts with the defendant in an effort to get her to introduce him to her client who originally proposed the scheme. Such meeting, however, was never consummated.

CONTENTIONS ON APPEAL

Defendant contends that there was insufficient evidence to sustain the conviction because there was no evidence that on January 3 she actually solicited the officer to accept the bribe, the argument being that she was 'merely feeling out' the officer.

Solicitation consists of the asking of another to commit one of the specified crimes with intent that the crime be committed. The intent may be inferred from the circumstances of the asking. (People v. Shapiro, 170 Cal.App.2d 468, 338 P.2d 963.)

The solicitation of a bribe need not be stated in any particular language; such a solicitation may be in the form of words which carry the import of a bribe and were evidently intended to be so understood.' (People v. King, 218 Cal.App.2d 602, at 610, 32 Cal.Rptr. 479, 484.)

The jury by its verdict found the defendant did in fact, and with the requisite intent, ask the officer to accept a bribe. On appeal from the judgment of conviction we view the evidence in the light most favorable to supporting the jury's determination and indulge in all reasonable inferences--which the evidence will support. (People v. Reilly, 3 Cal.3d 421, at p. 425, 90 Cal.Rptr. 417, 475 P.2d 649; People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.)

Officer Stanley testified to statements by the defendant from which it could be reasonable inferred that the defendant was asking the officer, in return for the lion's share of $10,000 to arrange to falsely arrest Monroe Richman for possession of narcotics. The jury's verdict is well supported by substantial evidence. The jury could consider defendant's statements subsequent to January 3, in determining her intent on that earlier date. In fact, since the indictment alleged that the crime was committed 'on or about January 3,' the jury could have based its verdict on the aggregate of the conversations between defendant and Officer Stanley.

Defendant next contends that even if the words used by defendant amounted to a solicitation the officer was not solicited to act in his 'official capacity.'

Penal Code section 7, subdivision 6, states: 'The word 'bribe' signifies anything of value or advantage, present or prospective, or any promise or undertaking to give any, asked, given, or accepted, with a corrupt intent to influence, unlawfully, the person to whom it is given, in his action, vote, or opinion, in any public or official capacity; . . .'

It is ludicrous to suggest that the solicitation by the defendant was not intended to affect Officer Stanley's action in his official capacity as a police officer for the City of Los Angeles. While it is true that it is not the official duty of a police officer to 'frame' innocent persons by plainting narcotics on them, it is generally within a police officer's official duties to make arrests. The solicitation here was for the officer to wrongfully and corruptly use his power of arrest in return for money.

The defendant sought out Officer Stanley because he was in fact a police officer and presented the matter for decision by him in his official capacity. (People v. Finkelstin, 98 Cal.App.2d 545, 220 P.2d 934.)

In any event "the giving or receiving of money . . . for the purpose of influencing official conduct is not deprived of its criminal character by the fact that the action contemplated is not within the officer's jurisdiction." (People v. Lips, 59 Cal.App. 381, at 389, 211 P. 22, at 29; People v....