People v. Kunkin

• Decision Date: 02 April 1973
• Docket Number: Cr. 16387
• Citation: 507 P.2d 1392,107 Cal.Rptr. 184,9 Cal.3d 245
• Court: California Supreme Court
• Parties: , 507 P.2d 1392, 57 A.L.R.3d 1199 The PEOPLE, Plaintiff and Respondent, v. Arthur Glick KUNKIN et al., Defendants and Appellants. In Bank

Page 184

107 Cal.Rptr. 184

9 Cal.3d 245, 507 P.2d 1392, 57 A.L.R.3d 1199

The PEOPLE, Plaintiff and Respondent, v. Arthur Glick KUNKIN et al., Defendants and Appellants.

Cr. 16387.

Supreme Court of California,

In Bank.

April 2, 1973.

As Modified on Denial of Rehearing May 2, 1973.

H. Peter Young, Los Angeles, Albaum & King, Walter H. King and Mel Albaum, Santa Monica, for defendants and appellants.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Ronald M George and William R. Pounders, Deputy Attys. Gen., for plaintiff and respondent.

Norman G. Rudman, Hollywood, Lionel S. Sobel, Los Angeles, and Walter L. M. Lorimer, Beverly Hills, as amici curiae on behalf of defendants and appellants.

WRIGHT, Chief Justice.

The Los Angeles Free Press (Free Press), its editor and owner, Arthur Glick Kunkin, and its reporter, Gerald Robert Applebaum, were each indicated on two counts of receiving stolen property (Pen.Code, § 496) ¹ for allegedly taking possession of two documents which had been removed from the Los Angeles office of the Attorney General by Jerry M. Reznick. ² At trial, after the close of the prosecution's case, the court on defense motion acquitted Free Press and Kunkin on the count pertaining to one of the documents. (See § 1118.1.) The related charge against Applebaum for receipt of the same document was dismissed with the prosecutor's consent after the jury was unable to agree on a verdict as to that count. (See § 1385.) The jury found each defendant guilty of one count of receiving stolen property, and defendants appeal from the judgment entered as to the Free Press and the orders granting probation to Kunkin and Applebaum. For reasons hereinafter set forth, we conclude that there was no substantial evidence to support one of the essential elements of the crime of receiving stolen property and, accordingly, we reverse the judgment.

While Jerry Reznick was employed as a mail clerk at the Los Angeles office of the Attorney General he removed a copy ³ of a personnel roster of the Bureau of Narcotic Enforcement ⁴ which listed the names, home addresses and home telephone numbers of undercover narcotics agents throughout the state. It was not marked 'secret' or 'confidential.' The copy of such document constitutes the 'property' found by the jury to have been received by defendants. ⁵

Reznick took the roster to the office of the Free Press where he met Applebaum. Reznick asked Applebaum whether the Free Press would publish the roster and Applebaum replied that he did not know. Although Applebaum feared 'there might be trouble' if such a document were published, he said that he would nevertheless consult his editor. When Reznick asked if he would be paid for providing the roster, Applebaum explained that, subject to approval by his superiors, the standard fee paid for information actually used in an article was $20. Reznick then departed.

Reznick returned a week later with the roster. Although Applebaum still could not promise that the Free Press would publish the roster, Reznick left the document on the reporter's desk and insisted that the newspaper not reveal its source of information. No agent of the newspaper promised to pay for the roster and Reznick was never paid for it.

On August 8, 1969, the Free Press published the roster verbatim in its feature article. The following headlines, inter alia, accompanied the article: 'Narcotics Agents Listed,' 'There should be no secret police,' and 'Know your local Narc.' The text editorialized that police personnel should live openly in the community which they serve. ⁶ On an ensuing television interview, Kunkin acknowledged his role in publishing the list and stated that he was satisfied as to its authenticity. He explained that the roster was appended to the editorial 'for dramatic effect.'

After the list was published, Reznick went to Applebaum and asked for the return of the copy of the roster he had provided. Applebaum refused but assured Reznick that the document was locked in a safe place. Following requests made by a deputy attorney general to the Free Press, an attorney of undetermined authorization delivered the copy of the roster to the Attorney General's office. Fingerprints of Reznick, Applebaum and Kunkin were found on the document.

Section 496 provides in subdivision 1: 'Every person who buys or receives any property which has been stolen or which has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, withholds or aids in concealing or withholding any such property from the owner, knowing the property to be so stolen or obtained, is punishable by imprisonment. . . .'

A conviction for receiving stolen property cannot withstand appellate scrutiny unless substantial evidence was presented to the trier of fact that (1) the property was received, concealed, or withheld by the accused; (2) such property had been obtained by theft or extortion; and (3) the accused knew that the property had been so obtained. (People v. Scaggs (1957) 153 Cal.App.2d 339, 352, 341 P.2d 793.)

We will assume, without deciding, that one of the several copies of the roster of personnel of the bureau distributed to the Los Angeles office of the Attorney General was 'property' within the meaning and intended scope of section 496. We will also assuume, without deciding, that the receipt of the roster by defendants was a 'receiving' of property within the meaning and intended scope of section 496. Our discussion will focus on the evidence adduced at trial to prove the latter two elements of the crime of receiving: the received property's stolen status and the receiver's knowledge of this status.

The substantial evidence rule has received extended discussion and express reaffirmation in several of our recent cases. In People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 389, 461 P.2d 659, 669, we observed that 'this court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . . If the circumstances reasonably justify the trial court's findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding. . . . The test on appeal becomes whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt.'

In People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 419, 475 P.2d 649, 651, we emphasized that reasonableness was the ultimate standard under the substantial evidence rule. 'The appellate court must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.' When unsubstantial circumstantial evidence is urged in support of an inference of guilty knowledge, we have not hesitated to find that evidence insufficient. (See People v. Williams (1971) 5 Cal.3d 211, 215--217, 95 Cal.Rptr. 530, 485 P.2d 1146.) 'Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact.' (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 534, 457 P.2d 321, 326.) The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact. '(I)n determining whether the record is sufficient . . . the appellate court can give credit only to 'substantial' evidence, i.e., evidence that reasonably inspires confidence and is 'of solid value. " (People v. Bassett (1968) 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 204, 443 P.2d 777, 788.)

Section 496 applies to the receipt of 'any property which has been stolen or which has been obtained in any manner constituting theft or extortion.' This broad language is intended to include property which has been obtained not only by theft by larceny (i.e., stealing) but also by such other forms of theft as embezzlement. ⁷ We note at the outset, however, that the jury in this case was instructed on the elements of theft by larceny only. Thus even though section 496 applies by its terms to the receipt of property obtained by embezzlement, the convictions below could only have been predicated on the jury's finding that the roster was stolen, not embezzled. We, of course, cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule. (See People v. Montalvo (1971) 4 Cal.3d 328, 335--336, 93 Cal.Rptr. 581, 482 P.2d 205.) The immediate question, accordingly, is whether there is substantial evidence that Reznick committed a theft by larceny apart from the suggestion that, because of his employment, he might have committed theft by embezzlement. ⁸

It has been settled for at least 78 years that theft by larceny requires a specific intent permanently to deprive the rightful owner of his property. 'While the felonious intent of the party taking need not necessarily be an intention to convert the property to his own use, still it must in all cases be an intent to wholly and permanently deprive the owner thereof.' (People v. Brown (1894) 105 Cal. 66, 69, 38 P. 518, 519; see also Witkin, California Crimes (1963) at p. 358.) ⁹

There is scant evidence in the instant case that Reznick intended a permanent deprivation. In the typical case the thief's sale of the property is persuasive proof of such an intention, but one of the many distinctive features of this case is that the alleged receiving involved no sale, at least of the stolen item itself. Reznick did leave the roster with defendants in the expectation that he would receive $20 should the roster result...