People v. Pic'l, Cr. 34317
| Decision Date | 20 January 1981 |
| Docket Number | Cr. 34317 |
| Citation | 114 Cal.App.3d 814,171 Cal.Rptr. 102 |
| Parties | The PEOPLE, Plaintiff and Appellant, v. Dean Richard PIC'L, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
John K. Van De Kamp, Dist. Atty., Harry B. Sondheim, Robert N. Jorgensen, and Dirk L. Hudson, Deputy Dist. Attys., for plaintiff and appellant.
John M. Polakovic, Pomona, for defendant and respondent.
In an indictment, defendants Dean Richard Pic'l and Randall James Martin were accused of committing the following felony offenses: in count I, the offense of conspiracy, in violation of Penal Code section 182; in count II, the offense of extortion, in violation of Penal Code section 520; in count III, the offense of bribing a witness not to attend trial, in violation of Penal Code section 1361/2; in count IV, the offense of attempting to induce a witness to withhold true testimony, in violation of Penal Code section 137; in count V, the offense of compounding a felony, in violation of Penal Code section 153; and in count VI, the offense of receiving and concealing stolen property, in violation of Penal Code section 496. In count VII, defendant Martin only was accused of the offense of receiving and concealing stolen property, separate and apart from the offense charged in count VI, in violation of Penal Code section 496.
Both defendants made motions to set aside the indictment (Pen. Code, § 995). Defendant Pic'l's motion was heard first and was granted on December 19, 1978, as to counts III, IV, and V, but denied as to counts I, II, and VI. 1 The People have appealed from the order of December 19, 1978, made pursuant to defendant Pic'l's motion, setting aside counts III, IV, and V of the indictment. (Pen. Code, § 1238.) 2
We summarize first the evidence presented in the grand jury proceedings.
In the early morning hours of July 30, 1978, there was stolen in Tustin a racing car, truck, trailer, related items, and a gun all belonging to Douglas Kerhulas. On August 3, 1978, defendant Martin attempted to sell part of the stolen property, a special rear end or differential, to Mr. Lukens at Blair's Speed Shop in Pasadena for $150. Since this differential was worth more than $1,000, Mr. Lukens became suspicious and telephoned the police. Kerhulas, the owner of the stolen property, was also notified.
Police officers and Kerhulas came to the shop. Kerhulas identified the differential as part of his stolen property. Kerhulas was given the name of the person who had possession of his property. Thereafter Kerhulas had a telephone conversation with defendant Martin in which Martin agreed that he would seek to have the stolen property returned to Kerhulas upon payment by Kerhulas of $3,000.
On August 6, 1978, a man who did not identify himself telephoned Kerhulas and said that he and Martin were among a group that stole the property, and he confirmed the arrangement whereby the property would be returned to Kerhulas for $3,000 but also upon condition that Kerhulas would sign a nonprosecution agreement. On August 7, 1978, the same man again telephoned Kerhulas and said that Kerhulas would subsequently get detailed instructions for getting his property back.
After these telephone calls, Kerhulas contacted the police and they attached a recording device to Kerhulas' telephone. Thereafter, defendant Pic'l telephoned Kerhulas and said that Kerhulas would have to pay $2,500 and sign a nonprosecution agreement in order to get his property back. Subsequently, Pic'l and Kerhulas met at a restaurant. This meeting was under surveillance by police officers who were in voice contact with Kerhulas through a radio transmitter affixed to Kerhulas' leg. At this restaurant meeting, Kerhulas paid $2,500 in cash to defendant Pic'l and signed and gave to Pic'l also a nonprosecution agreement which had been prepared by Pic'l.
Defendant Pic'l and Kerhulas left the restaurant in separate cars and went to one Steiner's house where Pic'l had arranged for the stolen property to be stored and where Kerhulas would be able to retrieve it. The officers who had followed Pic'l and Kerhulas to the Steiner premises arrested Pic'l as he drove from the Steiner premises. They removed from Pic'l's pockets $2,500 in $100 bills and the nonprosecution agreement. The officers also found in Pic'l's car the loaded gun which had been stolen from Kerhulas.
It is of significance that in a conversation with the officers, Pic'l stated that he would not have returned the property to Kerhulas if Kerhulas had not paid the $2,500.
The nonprosecution agreement signed by Kerhulas provided as follows:
In granting the motion to set aside counts III, IV, and V of the indictment and denying the motion to set aside counts I, II, VI and VII, the trial court concluded that, as to court III the bribing of a witness not to attend trial the nonprosecution agreement could reasonably be interpreted only as an agreement by the victim not to seek criminal charges against anyone; that there was nothing in the agreement or in the evidence before the grand jury that could lead to an inference that the victim was agreeing not to attend the trial or hearing of any action. The trial judge also stated that there could be no offense under the evidence as to count III because the victim was only a "feigned cooperator in signing the agreement."
The court voiced similar reasons for setting aside count IV the attempt to induce the withholding of testimony except that the comment that the offense could not have been committed by reason of the victim being a "feigned cooperator" did not apply.
As to count V the compounding of a felony the trial court remarked that the commission of that offense was impossible because the victim was working with the police and never intended to carry out anything he promised in the agreement.
As we shall articulate below, we agree with the trial court that the evidence before the grand jury required the setting aside of counts III, IV and V of the indictment and permitting the action to go to trial on the remaining counts only.
In count III of the indictment, the defendants were charged with a violation of Penal Code section 1361/2. This section provides: "Every person who gives or offers or promises to give to any witness or person about to be called as a witness, any bribe upon any understanding or agreement that such person shall not attend upon any trial or other judicial proceeding, or every person who attempts by means of any offer of a bribe to dissuade any such person from attending upon any trial or other judicial proceeding, is guilty of a felony."
The case of Lichens v. Superior Court (1960) 181 Cal.App.2d 573, 5 Cal.Rptr. 539, involved a prosecution under Penal Code section 1361/2. In Lichens, the evidence at best established that "the only purpose of the bribe was to induce (the victim) to 'drop the case' (an act which would have required the consent of the district attorney at that time), not that (the victim) would not attend upon the trial and hearing of said action." (Id. at p. 576, 5 Cal.Rptr. 539.) The Lichens court held that such evidence failed to show the essential elements of Penal Code section 1361/2. Thus, as a matter of law, there was no reasonable or probable cause for returning the indictment.
Similarly, in the case before us, as the trial court noted, Kerhulas, the victim, merely agreed "to seek the dismissal of all criminal charges which may have been filed relative to this matter and to do everything within my power to prevent the filing of any additional charges against any person." The...
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