People v. Lewis, Cr. 8439

CourtCalifornia Court of Appeals
Writing for the CourtKINGSLEY; BURKE, P. J., and JEFFERSON
Citation222 Cal.App.2d 136,35 Cal.Rptr. 1
PartiesThe PEOPLE, Plaintiff and Respondent, v. Howard Stanton LEWIS, Philip Thomas Brylke, and James William Jones, Defendants and Appellants. The PEOPLE, Plaintiff and Respondent, v. James William JONES, Defendant and Appellant.
Docket NumberCr. 8439,8444
Decision Date07 November 1963

Page 1

35 Cal.Rptr. 1
222 Cal.App.2d 136
The PEOPLE, Plaintiff and Respondent,
Howard Stanton LEWIS, Philip Thomas Brylke, and James William Jones, Defendants and Appellants.
The PEOPLE, Plaintiff and Respondent,
James William JONES, Defendant and Appellant.
Cr. 8439, 8444.
District Court of Appeal, Second District, Division 4, California.
Nov. 7, 1963.

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[222 Cal.App.2d 139] Thomas W. Cochran, Long Beach, for defendants and appellants.*

Stanley Mosk, Atty. Gen. and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

The present appeals are from judgments of conviction on a group of charges originally contained in three separate indictments. As a result of proceedings taken in the trial court (and not questioned here) two of the indictments were consolidated and that case (#244636) was, as to defendant Jones (the sole appellant therein), submitted to the trial court, without a jury, on the transcript of the grand jury proceedings. The other indictment (#244634) was tried before a jury, resulting in verdicts adverse to appellants. We consider first the appeals from the judgments in the case tried to a jury.

In case #244634, appellants, together with other persons not appellants here, were charged in Count I with conspiracy (Pen.Code, § 182) to commit: (a) grand theft auto (Pen.Code, § 487, subd. 3); (b) grand theft (Pen.Code, § 487, subd. 1); (c) kidnapping for the purpose of robbery with injuries inflicted (Pen.Code, § 209); and (d) robbery (Pen.Code, § 211).

Eight overt acts were alleged as having been committed in furtherance of the conspiracies; six alleged the sale or attempt to sell certain stolen automobiles by the use of counterfeit documents; one alleged the forcible entry into a home, assault, robbery and kidnapping of its occupants; one alleged the possession of counterfeit documents by one of the co-conspirators.

[222 Cal.App.2d 140] Counts II, V, VII, VIII and X charged the grand theft of the automobiles involved in six of the overt acts; Counts III, IV, VI, IX and XI charged grand theft in the taking of the money received in the several sales involved in the same overt acts. 1

The jury found defendants Jones and Lewis guilty of conspiracy to commit grand theft and of conspiracy to commit grand theft auto, as charged in Count I, and guilty as charged in the other counts; it found defendant Brylke guilty of conspiracy to commit robbery, but not guilty as to the other charges. Thereafter, as a result of proceedings in the trial court, prison sentences were pronounced against Brylke on the single charge of conspiracy to rob and against Jones and Lewis on the charges other than the conspiracies to kidnap and to rob. 2 The other charges were dismissed.

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Jones and Lewis concede that there is sufficient evidence in the record to establish the commission of all of the overt acts which are alleged as part of Count I of the indictment. They also concede that, if they were proved to have been members of the alleged conspiracy, it need not be proved that they had participated personally in the various overt acts. Their contention is that the evidence was not sufficient to prove their membership in the conspiracy.

The testimony of Nancy Dolores Billings, a co-conspirator against whom the charges were dismissed, clearly and positively implicated both Jones and Lewis in four of the automobile thefts and sales which were involved in the conspiracy charge and in the sundry substantive counts. In brief, Mrs. Billings testified to her participation in the sales of the stolen vehicles involved in overt acts 1, 2, 5 and 6; that Jones and Lewis either together or separately directed her activities in detail in connection with each of the transactions; in certain instances one or the other would tell her where to pick up a particular car out of a parking lot and where to take it for exchange of license plates and registration[222 Cal.App.2d 141] certificate and for subsequent sale; she would give the proceeds from the sales to Lewis and Jones together or to one or the other. The contention is that Mrs. Billings was an accomplice and that her testimony was not properly corroborated as required by section 1111 of the Penal Code. 3

The People meet this contention by arguing, first, that Mrs. Billings was an involuntary participant in the alleged conspiracy and, therefore, not one whose testimony required corroboration. (People v. Westek (1948) 31 Cal.2d 469, 190 P.2d 9; People v. Roberts (1947) 82 Cal.App.2d 654, 187 P.2d 27; People v. Battilana (1942) 52 Cal.App.2d 685, 126 P.2d 923.) They base this contention on the fact that Mrs. Billings testified that she protested against selling any stolen cars after defendant Lewis disclosed to her that the first car she sold for him was stolen; that he then threatened her by stating she would sell more automobiles for him when requested to do so if she knew what was good for her, and that she better not go to the police if she knew what was good for her.

We do not believe this evidence is sufficient to make Mrs. Billings an involuntary participant in an alleged crime. The threatened danger must be an immediate danger; a fear of future harm to one's life does not relieve one of responsibility for the crimes he commits. (People v. Otis (1959) 174 Cal.App.2d 119, 125, 344 P.2d 342.) At most, Mrs. Billings' testimony reveals a threat of future bodily harm if she did not cooperate with Lewis.

Corroborating Evidence As To Lewis

William D. Andrews, Special Agent for the Federal Bureau of Investigation, obtained a search warrant from the United States Commissioner with regard to premises at 10392 Florence Avenue, Cypress, Orange County. The day before Agent Andrews obtained the search warrant, Robert Michener, Deputy Sheriff of Los Angeles County, accompanied by his partner, Officer Bensuka, observed Mrs. Billings arriving at these premises and being admitted by defendant Lewis. Mrs. Billings testified that she visited Lewis at this residence and he told her that it was his residence.

In his search of the premises, in cooperation with the Los [222 Cal.App.2d 142] Angeles County Sheriff's Office, Auto Theft Detail, Andrews observed and discovered, among other things, a fully equipped photographic dark room, a speed-graphic camera, a light bar with four

Page 5

lamps, another camera, a device known as an interval camera, a tripod for the light bar, five photographic copies of drivers' licenses designated as operator's No. W444838, (this license bore the name David Farrell, whose name was used by a co-conspirator, Alvin Bert Dillard, in selling two cars, alleged in the indictment as overt acts 3 and 7 in furtherance of the conspiracy) a white cardboard approximately 5 X 7. Taped to the cardboard were two strips, the top one reading 'California License,' and the bottom strip marked 'Must be carried when operating a motor vehicle and when applying for renewal,' an envelope containing nine blank certificates of ownership for an automobile for the State of California, a completed certificate of ownership to a 1959 Cadillac (this automobile was stolen from Leo R. Walker, and is one of the acts alleged to be in furtherance of the conspiracy), Kelly Blue Book, Auto Market Report. Also found was a rubber stamp bearing the Great Seal of California, other date stamps, India Ink, a pen and two pen points, an IBM typewriter, 4 a paper cutter, a photograph of Mrs. Billings (which she testified is a photograph she had had taken at Lewis' request, had given to him, and which appeared on a counterfeit license in the name of Betty Ann Miller, which she used as identification in making sales of stolen cars) and personal identification belonging to David Farrell.

Arthur J. Fitzpatrick, Supervising Special Investigator for the Department of Motor Vehicles, an expert in questioned ownership and registration certificates, testified that the pink slips used in the automobile transactions and those uncovered in the search of the premises occupied by Lewis were made from the same lithoplate.

William L. Bowman, an expert in examining questioned documents with the Los Angeles County Sheriff's Department, testified that, in his opinion the type on the license in the name of Betty Ann Miller (which was taken in the search conducted by Agent Andrews) was from the Remington typewriter identified as belonging to Lewis, and the pink slip [222 Cal.App.2d 143] involved in one of the stolen car transactions was typed on the IBM typewriter found in the search of Lewis' house.

Harold R. Treichler, Deputy Sheriff of Los Angeles County, assigned to the photo laboratory in a supervisory capacity, had devoted his attention to photographing or creating documents by photographic processes over a period of many years. He inspected pictures depicting the photographic work room in the house where Agent Andrews conducted his search. Mr. Treichler was of the opinion that the equipment and arrangements suggested an adequate copy and dark room setup. A copy setup is designed to duplicate whatever may be set up in front of the camera. Items such as the birth certificate and license, found by Agent Andrews, could have been created with use of such equipment. It was also possible, through composite photography, using the items taken in Agent Andrews' search, to create facsimiles of California driver's licenses.

This sampling of the evidence corroborating Mrs. Billings' testimony as to Lewis' participation in the crimes adequately demonstrates that it was not only substantial but overwhelming.

The Corroborating Evidence As To Jones

Jones testified that he knew Lewis during the period when the alleged conspiracy was to have taken place. The owner of the Pioneer Bowl testified that Jones and Lewis were frequently seen together at the Pioneer Bowl and would meet each other there.

Jones admitted that a counterfeit California...

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