People v. Oppenheimer

• Citation: 26 Cal.Rptr. 18,209 Cal.App.2d 413
• Decision Date: 09 November 1962
• Docket Number: Cr. 8044
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant-Respondent, v. John G. OPPENHEIMER, Defendant and Respondent-Appellant.
• Court: California Court of Appeals

Page 18

26 Cal.Rptr. 18

209 Cal.App.2d 413

The PEOPLE of the State of California, Plaintiff and Appellant-Respondent, v. John G. OPPENHEIMER, Defendant and Respondent-Appellant.

Cr. 8044.

District Court of Appeal, Second District, Division 1, California.

Nov. 9, 1962.

Rehearing Denied Nov. 26, 1962.

Hearing Denied Jan. 3, 1963.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., County of Los Angeles, Harry Wood, and Harry Sondheim, Deputy Dist. Attys., for appellant.

John G. Oppenheimer, respondent, in pro. per.

FOURT, Justice.

This is an appeal by the plaintiff from an order setting aside an indictment following a motion made by the defendant under the provisions of section 995, Penal Code. The defendant filed a cross-appeal from the order of the court 'insofar as it limits the dismissal of the case to the provisions of section 995 * * *'

In an indictment filed in Los Angeles County on July 19, 1961, the appellant was charged in four counts with violating the provisions of section 523 of the Penal Code. ¹

The first count of the indictment set forth that the defendant did on January 27, 1961, '* * * feloniously, with the intent to extort money and property from Frank G. Swain, send and deliver to said Frank G. Swain a certain letter and writing, which said letter and writing did then and there express and imply and was adapted to imply a threat to do an unlawful injury to the person and property of the said Frank G. Swain.'

The second, third and fourth counts of the indictment were in identical form with reference to letters written to A. Curtis Smith, Harold P. Huls and Harold C. Shepherd, respectively.

The defendant was arraigned on July 21, 1961. On August 4, 1961, a petition for a writ of habeas corpus was denied. Defendant entered 'pleas of once in jeopardy and former conviction.' On August 17, 1961, before Judge Coleman, the defendant's motion under section 995, Penal Code, was heard and denied. A demurrer was overruled. Defendant pleaded not guilty, 'Former judgment of conviction and acquittal * * * Once in jeopardy * * * Not Guilty by Reason of Insanity.'

The defendant filed an affidavit of prejudice and the cause was transferred back to Department 100 for resetting for trial and other matters. In another department (113) of the court, on September 1, 1961, the defendant's plea of double jeopardy and 'former conviction' was argued and denied. After various and sundry appearances and motions the cause was assigned to the court of Judge Gitelson on September 19, 1961, for trial on September 21, 1961. The defendant on September 21, 1961, sought a continuance upon the grounds that he had petitioned the District Court of Appeal for a writ of prohibition. That petition was filed in the District Court of Appeal on August 30, 1961, and set forth, among other things, that the superior court had on August 17, 1961, improperly denied his motion under section 995, Penal Code. Furthermore in that petition defendant set forth practically all of the matters which he has set forth in this Judge A. Curtis Smith planned to be away from the County of Los Angeles on the date to which the case was continued for trial and it was stipulated that his deposition could be taken on September 22, 1961.

appeal, namely, among others, that the indictment was void, stale, prior jeopardy, res judicata and many other reasons why the proceedings should be stopped. That petition was denied by Division 3 of the District Court of Appeal on September 11, 1961. The trial judge continued the case to October 16, 1961, for trial upon motion of the defendant.

On September 25, 1961, the defendant made an application to the Supreme Court for a hearing of the prohibition proceedings. Defendant set forth in that application what had occurred in the District Court of Appeal and further set forth that the indictment 'lacks probable cause,' that 'the evidence before the grand jury fails to show the existence of reasonable or probable cause that section 523, Penal Code has been violated by petitioner, as charged, or anyone, for that matter, either in January, 1961 or at any other time' and further he set forth practically all of the matters presently urged in this proceeding. That petition for a writ of prohibition was unanimously denied by the Supreme Court on October 11, 1961.

The deposition of Judge A. Curtis Smith was taken on September 22, 1961. The trial of the case was continued to October 19, 1961. On October 19, 1961, the defendant's renewed motion under section 995, Penal Code, was heard and ordered submitted. On October 30, 1961, Judge Gitelson made an order, which stated in part as follows:

'* * * there is no probable cause to believe that a crime is thereby charged; therefore, the motion under 995 solely and only, however, upon the ground that defendant has been indicted without reasonable or probable cause, is granted.'

The People appealed, as heretofore indicated, and defendant filed a cross-appeal.

Judges Frank Swain, Harold Huls and A. Curtis Smith presently and on the dates in question composed the appellate department of the Superior Court in and for Los Angeles County. Apparently the defendant and R. W. Agnew have had some difficulty in the past. In any event the defendant here (prior to the writing of the letters) was a complainant in a criminal case filed in the municipal court (Los Angeles) against R. W. Agnew (case No. 124,429) wherein Agnew was charged with battery. That cause was dismissed because, among other things, the complaining witness (Oppenheimer) did not appear, and was dismissed upon the court's own motion in the interest of justice, in that the evidence did not support the allegations of the complaint. Judge Harold C. Shepherd presided in that case. A purported notice of appeal was filed on September 12, 1960, in that case by Oppenheimer, the complainant therein. The notice read in part 'Notice of appeal filed by John G. Oppenheimer, complainant, agent and attorney in fact for plaintiff.'

A complaint in two counts was filed (prior to the writing of the letters) against Oppenheimer in the municipal court (Los Angeles) charging him with battery (case No. 124,358). The alleged victim in that case was R. W. Agnew. In a jury trial in the court of Judge Shepherd, Oppenheimer was found guilty of one count of the change in the complaint and was sentenced to pay a fine of $100.00 with a $5.00 penalty assessment. The fine apparently was paid.

On November 23, 1960, the three judges of the appellate department of the superior court issued an order to show cause why Oppenheimer should not be adjudged guilty of contempt, in that he was practicing law without a license and attempting to represent the People of the State of California in the purported appeal from the judgment in the case, wherein he was the complainant (People v. Agnew, No. 124,429). Oppenheimer was found guilty of contempt on During the month of December 1960 Oppenheimer had a conversation with an attorney in which the attorney stated in effect, 'John, I understand they nabbed you this time' and Oppenheimer turned red and answered in effect that he was going 'to get even with those goddamn judges.' The attorney thus spoken to urged caution and Oppenheimer reiterated his statements and further said that he was going to put sugar in the gasoline tanks of the respective judges.

December 8, 1960 (in the appellate department of the superior court), and was sentenced to five days in jail and to pay a fine of $250.00 plus a penalty assessment of $12.50. Oppenheimer served the five days and paid the fine and assessment.

On January 27, 1961, Judges Swain and Smith each received a letter in the mail. On January 28, 1961, Judge Huls and Judge Shepherd each received a letter in the mail. Copies of the respective letters and the envelopes in which they were sent are set forth in footnote. ²

On January 31, 1961, Judge Shepherd found an empty envelope which was directly linked to Oppenheimer in the tube leading to the gas tank of his automobile. On March 4, 1961, the judge's car was found to contain sugar in the fuel pump, gas tank, carburetor and other parts thereof.

On March 25, 1961, an envelope which was definitely linked to Oppenheimer, containing sugar, was found in the gas tank of the automobile of Judge Swain.

The police located a typewriter in Oppenheimer's room. It was the opinion of an expert that the letters heretofore referred to and mentioned were written upon the particular typewriter so found and taken. There was other evidence without relating The trial judge apparently was of the belief that the letters were nothing more than the writings of an insane person, that it was in each instance simply the writing of a dissatisfied litigant who wanted to give vent to his feelings about the decisions of the respective judges, that the writer of the letters did not in fact actually demand or seek any money. The court further seemed to be of the belief that if a writing such as any of the letters under consideration was capable of two constructions, one whereby the defendant would be guilty of an offense and one whereby the defendant would be innocent of an offense, then and in such event the court as a matter of law was required to hold that no crime could have been committed because the court must take the construction pointing to innocence. The judge further seemed to feel that the language of the letters, taken on context with the foul and abusive terms therein contained, and the facts and circumstances surrounding the entire matter, is not sufficient to warrant further proceedings. The judge stated in effect that the reference by Oppenheimer as to whether the windows of the respective judges were insured was a simple inquiry comparable to any other simple and unrelated question which might have been put to the respective judges at that time and carried with it no connotation...