People v. Miller

• Court: California Court of Appeals
• Writing for the Court: ASHBURN; FOX, P. J., and HERNDON
• Citation: People v. Miller, 22 Cal.Rptr. 786, 205 Cal.App.2d 116 (Cal. App. 1962)
• Decision Date: 26 June 1962
• Docket Number: Cr. 7989
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward John MILLER, Defendant and Appellant.

Page 786

22 Cal.Rptr. 786

205 Cal.App.2d 116

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward John MILLER, Defendant and Appellant.

Cr. 7989.

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

June 26, 1962.

G. Vernon Brumbaugh, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Mario A. Roberti, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was charged in four counts with violations of subdivisions 1, 2, 4 and 6 of § 337a of the Penal Code, relating to bookmaking. The count relating to subdivision 4 was dismissed and a conviction resulted on the other three counts, the cause being tried on the transcript of the preliminary hearing. One prior conviction was proved and defendant was sentenced to six months on each count, the sentences to run concurrently. He bases his appeal on the contention that the evidence is not sufficient to sustain a conviction on any of the three counts and also on the contention that certain evidence was erroneously admitted.

The conviction was based on the testimony of Officer Richard E. Geon of the Los Angeles Police Department, assigned to the Administrative Vice Division. Officer Geon 'is an expert in the way and manner in which bookmaking is conducted in Los Angeles County, including signs, symbols, language, and paraphernalia used therein.' Geon was permitted to testify, for purposes of probable cause only, that before the arrest he was told by his immediate superior that by dialing HU 3-7777, wagers could be made on horse races. Through the telephone company he found that number registered to 1616 Ingraham Street, apartment 102 in Los Angeles. He then went to that address, entered the hallway, and ascertained the location of apartment 102. From a public telephone in the hallway he dialed the above number. For purposes of establishing probable cause only, the following testimony was admitted: 'THE WITNESS: The phone was answered by a male voice who stated, 'Hello.' At this time I said, 'This is J. W. for 700.' The male voice replied, 'Just a minute.' After a short pause the male voice said, 'Go ahead.' I said, 'In the second at Hollywood give me two across on That's My Man, and two across on Solid Lad, and in the third give me two across on Pay Off and five to show on Uncle Dibby.' I asked this person, 'Did you get all of it?' The male voice replied, 'Yes.' I stated that, 'I will call you later,' and I then hung up the phone.'

Geon then joined his partner in forcing entry into the apartment. They proceeded to the bedroom where Geon observed defendant and placed him under arrest. A subsequent search revealed two 3 X 5 pads with ink notations, market exhibits 1 and 4 and a National Daily Reporter, dated May 20, 1961, the date of the arrest, marked exhibit 3. Exhibit 2 was a handwriting exemplar with defendant's handwritten name on it, the date May 20, 1961, and the initials R. F. K.

With respect to exhibit 1 the officer testified as follows: 'In my opinion this is a recordation of a wager, to wit, in the second race at Hollywood Park, the horse in the 6th handicapped position, $2.00 to win, $2.00 to place, $2.00 to show. I also observed the initials J. W. followed by the word for 700. Q And in your opinion what is the meaning of that, sir? A In my opinion J. W. would be the identification of a bettor wishing to place a wager on a horse race at Hollywood Park, and 700 would be the identification agent for whom the bettor was coming in.' Geon was then asked his opinion as to the relation of figures on exhibit 1 to the bets he placed over the telephone. Over defendant's objection that the question assumed facts not in evidence, was incompetent, irrelevant, and immaterial, and called for surmise and conjecture, the officer was permitted to testify as follows: 'In correlating these figures with the National Daily Reporter for May the 20th, 1961, and in interpreting these numerals they represent the identical coded figures of the purported wager which I placed over the telephone at this time. MR. KOTCHICK: Q And are you able to explain at this time, Officer Geon, which numbers here led you to arrive at this opinion that you have just stated? A Well, these numbers, for example, 27 indicate that in the second race the horse in the 7th handicapped position, $2.00 to win, $2.00 to place, $2.00 to show, and directly below this the numerals 32 followed by the figures 2, 2, 2, indicate a $2.00 win, $2.00 place and $2.00 show wager in the third race, the horse in the second handicapped position. And below this the numerals 33, followed by the figures 5S indicate a $5.00 show wager on the horse in the third handicapped position in the third race. Q And is this a track in the United States, Officer? A Yes, sir, Hollywood Park.'

Exhibit 3, the National Daily Reporter, was described as being used by bookmakers and bettors.

Exhibit 4 was described as a list of agents with whom the bettors are doing business when they phone their bets. Officer Geon stated that the bettors refer to one of these agents when they call the number so that bookmakers can determine whether they are legitimate bettors. The witness then stated that in his opinion, exhibits 1, 3 and 4, when taken together, constitute bookmaking paraphernalia.

Officer Geon also testified to the following: 'I asked the defendant how long he had been a bookmaker. He replied that he had been taking bets for about eight days. I asked him how he got into the business. He stated that he had met a man in a bar who told him that he could make some extra money by taking bets over his telephone.'

Following Officer Geon's testimony it was stipulated that a handwriting expert would testify, if called, that defendant's handwriting on exhibit 2 was made by the same person as the handwriting on exhibit 1.

It should also be noted that no defense was presented, and 'the failure of the defendant to explain or deny evidence presented against him, when it is in his power to do so, may be considered * * * as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable the defendant are the more probable.' (People v. Adamson, 27 Cal.2d 478, 489, 165 P.2d 3, 9.)

Under ...