People v. Kageler
| Decision Date | 01 June 1973 |
| Docket Number | Cr. 21847 |
| Citation | 108 Cal.Rptr. 235,32 Cal.App.3d 738 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Russell A. KAGELER, Defendant and Appellant. |
Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Schwab, and Donald F. Roeschke, Deputy Attys. Gen., for plaintiff and respondent.
In a one count information the defendant was charged with grand theft in violation
of section 487, subdivision 1, of the Penal Code; a jury convicted him. The trial was preceded by a motion to dismiss pursuant to section 995 of the Penal Code and followed by a motion for a new trial pursuant to section 1181 of the Penal Code--they were both denied. Following a 90 day commitment to the Department of Corrections and the obtaining of a diagnostic report (section 1203.03 Penal Code) the defendant was granted formal probation for a period of five years predicated upon the suspension of the proceedings. One of the conditions of probation was that the defendant spend the first year in the county jail. He now appeals, contending that he is entitled to a reversal on one, or all, of the following grounds:
1. Under the 'best evidence rule' the trial court erroneously permitted the People to play a copy of the tape recording of a conversation the police had with appellant;
2. The trial court should have instructed the jury on its own motion as to the law of accomplices;
3. The trial court erroneously failed to answer a question of the jury;
4. The trial court should have instructed the jury that the nonexistence of Transamerica Mining Corporation and Robert J. Black had not been established and that evidence in this regard should be viewed with caution;
5. Because the defense obtained new evidence pertaining to Black and the Transamerica Mining Corporation, the trial court erroneously denied appellant's motion for a new trial.
Our analysis of the defendant's contentions in the context of the factual situation giving rise to his conviction leads us to the conclusion that they are void of merit, individually and collectively, and accordingly we affirm the judgment of conviction.
This 'Love Story' began on June 3, 1970, at the Cedars of Lebanon Hospital when Aurora Eslava met the defendant; she was a nurse and he was a patient. Six days later she moved into his apartment. The defendant's talk of affection and marriage continued unabated after the common law joinder, but soon thereafter a new topice of conversation was added; the finances of Aurora's 70 year old mother, Teresa, and her 70 year old father, Isabelo.
It seems that Isabelo Eslava had recently received $7000 in an accident settlement and that he and his wife wanted to bring this and their life savings to California from Connecticut where they were then residing. Aurora went east to help them drive across the county. While there she called the defendant and sought his transcontinental financial advice as to whether or not her elderly parents should drive across the country with their money and some bonds which they owned. The advice which, unfortunately, was heeded, was to send everything to the defendant by registered mail. A savings passbook for an account showing a balance of $14,510.68 and the bonds were sent to the defendant.
When the elderly Eslavas arrived in California, they were induced by the defendant, using Aurora as an apparently love sick and unsuspecting agent, to put $10,000 in a bank account in the names of defendant and Aurora 'in trust' for Teresa Eslava, and $4,510.68 in another bank account in the name of the defendant alone. The inducement to set up the first account was to have a 'younger' person's name on the account so that the state would not claim it if anything should happen to the older person; the inducement for the second was to permit defendant to invest the money for the Eslavas as well as giving them easy access to cash without the necessity of withdrawing from the $10,000 account--for which the defendant obviously had other plans.
All this time the elder Eslavas were under the impression that their daughter and defendant were man and wife, and, indeed, he had given her a ring ('charged') to prove it. The 'marriage' lasted about as long as the money did, from June to November.
In August of 1970 the defendant withdrew $2,800 from the smaller account and invested it in mutual fund stock, which he put in his name. The proffered explanation to the Eslavas was that this would facilitate further buying and selling. In September the defendant obtained a $1000 personal loan, using the mutual fund stock as security. In November the defendant withdrew the entire $10,000 from the account ($1,500 in cash and $8,500 in a cashier's check), forfeiting all interest and giving the questioning bank the false reason that it was needed for medical purposes. A letter to this effect was dictated by the defendant, typed by Aurora, and signed by Eslava, who did not read the contents.
The defendant took the money and went to Texas, purportedly to invest in 'Transamerica Mining,' which the defendant contends was a subsidiary company of 'Transamerica Corporation.' This transaction, according to the defendant, was consumated with one Robert J. Black, whom the defendant met either in California or Mexico--depending upon which version, if any, is to be believed. The defendant received two stock certificates for 2500 shares each, at least this is what 'he believes.' We need not detail here the many explanations which the defendant gave from the witness stand, as ingenious and circuitous as they were; they would unnecessarily burden this opinion. But certainly of interest to the trier of fact was the defendant's testimony that these stock certificates were made out in his name, paid for with the Eslava's $10,000 in an initial deposit of $1500 cash 'front money to show my good faith . . . almost immediately when I got off the plane.' He received no receipt for the initial payment but paid an 'additional $7000 balance' the following day which then went into a joint bank account for Mr. Black and the defendant. It need hardly be added, but the stock certificates were left with the peripatetic Mr. Black, none of which, or whom--the two stock certificates or Mr. Black--appeared at the trial.
Also while in Texas the defendant ordered by telephone the sale of a large portion of the mutual fund stock for which he personally received $1300. His implausible explanation for this to the now doubting, albeit tardy, Aurora was that he wanted to see if the sale of the stock was possible.
It will come as no surprise to the reader that the elder Eslavas never got any of their money back, realized no profit from their 'son-in-law's' stock transactions--let alone ever saw the stock. In all fairness, however, it should be stated that he did return to the Eslavas their bonds--upon the suggestion of the investigating officer just days before his arrest.
The defense was one of a completely misunderstood series of financial transactions by a philanthropic would be son-in-law who was only interested in improving the financial lot of the Eslavas and in ultimately marrying their daughter. ('I told her that when I went back to work and we were financially set, we could probably make it to Vegas.')
The investigating officer recorded a conversation he had with the defendant and, in rebuttal, a portion of it was played to the jury. This was done by the use of a copy of the original tape recording and it was also done over the objection of the defendant. Here is the portion of the conversation that was played to the jury:
'Q How did you meet him in the first place?
'A I met him while I was on vacation.
'Q Where?
'A In Mexico.
'. . ..xic
'Q Do you have any business cards or anything that further identifies him as to his account in Transamerica?
'A No, sir, I don't.
'Q How did you meet him in the first place?
'A I met him while I was on vacation.
'Q Where?
'A In Mexico.
'Q That when you went to Guadalajara?
'A Right.
'Why did you go to Guadalajara in the first place?
'A I went to Guadalajara in the first place really, to be honest, Mr. Hambly, I had had a head injury, and I couldn't work--they wouldn't let me go back to work, so I went on--'
The record is not clear as to why a rerecording was played instead of the recording itself; however, it is of no moment as both the original and 'copy' were in the court room and available for inspection by the defendant. It was admissible; there was no error. It is contended that this admission into evidence violated the best evidence rule; this is simply not so, as three sections of the Evidence Code clearly demonstrate. They are sections 1500, 1510, and 250, and they provide in that order:
'A copy of a writing is not made inadmissible by the best evidence rule if the writing has been produced at the hearing and made available for inspection by the adverse party.'
"Writing' means handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.'
'An accomplice is one who is liable to be prosecuted for the identical offense charged against the defendant on trial.
'To be an accomplice, the person must have knowingly and with criminal intent aided, promoted, encouraged, or instigated by act or advice, or by act and advice, the commission of such offense.' (CALJIC 3.10.)
...
To continue reading
Request your trial
-
53 Cal.3d 1179A, People v. Beardslee
...error, however, was harmless. A violation of section 1138 does not warrant reversal unless prejudice is shown. (People v. Kageler (1973) 32 Cal.App.3d 738, 746, 108 Cal.Rptr. 235.) Defendant has not shown There was no possible prejudice to defendant from the court's refusal to answer the ju......
-
People v. Medina
...effects. But, as explained below, it is unlikely that any such clarification would have aided defendant. (See People v. Kageler (1973) 32 Cal.App.3d 738, 746, 108 Cal.Rptr. 235 [showing of prejudice As was evident from the foreman's inquiry, the jury was primarily concerned with whether a s......
-
People v. Hill
...had read. We first reject the People's contention that defendant waived this issue by failing to object. (See People v. Kageler (1973) 32 Cal.App.3d 738, 746, 108 Cal.Rptr. 235; People v. Chagolla (1983) 144 Cal.App.3d 422, 432-433, 193 Cal.Rptr. 711.) Although defense counsel stated he did......
-
People v. Jennings
...82, 89, 206 Cal.Rptr. 468; People v. Chagolla (1983) 144 Cal.App.3d 422, 432-433, 193 Cal.Rptr. 711; see also People v. Kageler (1973) 32 Cal.App.3d 738, 745-746, 108 Cal.Rptr. 235 [addressing § 1138 violation only].) Although defendant argues the error impinged on his constitutional right ......