People v. Shira

• Decision Date: 30 September 1976
• Docket Number: Cr. 28561
• Citation: 62 Cal.App.3d 442,133 Cal.Rptr. 94
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Ray SHIRA, Defendant and Appellant. The PEOPLE of the State of California, Plaintiff and Respondent, v. Vickie Lynn DICKINSON, Defendant and Appellant. The PEOPLE of the State of California, Plaintiff and Respondent, v. Ben Timothy PLANCHARD, Defendant and Appellant. The PEOPLE of the State of California, Plaintiff and Respondent, v. Glenn Everett THOMPSON, Defendant and Appellant. The PEOPLE of the State of California, Plaintiff and Respondent, v. Edward HAGEN, Defendant and Appellant.

Page 94

133 Cal.Rptr. 94

62 Cal.App.3d 442

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Ray SHIRA, Defendant and Appellant.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Vickie Lynn DICKINSON, Defendant and Appellant.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ben Timothy PLANCHARD, Defendant and Appellant.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Glenn Everett THOMPSON, Defendant and Appellant.

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

Cr. 28561.

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

Sept. 30, 1976.

Hearing Denied Dec. 2, 1976.

Samuelson & Carlin, and Gary R. Carlin, Long Beach, for defendants and appellants.

Robert W. Parkin, City Prosecutor, and Robert R. Recknagel, Asst. City Prosecutor, for plaintiff and respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Roger W. Boren, Deputy Attys. Gen., as amicus curiae on behalf of respondent.

John K. Van De Kamp, Dist. Atty., Harry B. Sondheim, Head, Appellate Division, and Eugene D. Tavris, Deputy Dist. Atty., Los Angeles, as amicus curiae on behalf of respondent.

HANSON, Associate Justice.

THE CASE

The nine consolidated cases at bench, emanating from the Long Beach Municipal Court, involve the legality of the game called RINGO. The case comes up on appeal from a final judgment of conviction for operating an illegal lottery as defined in Penal Code section 319 ¹ (hereinafter section 319).

The five (5) named defendants/appellants Charles Ray Shira, Vickie L. Dickinson, Ben Timothy Planchard, Glenn Everett Thompson, and Edward Hagen (hereafter defendants) The defendants appealed to the appellate department of the superior court which reversed the judgment of the trial court on each of the above referred to actions holding RINGO was not a lottery (Judge Alarcon dissenting) and certified the opinion for publication in the Advance California Appellate Reports. Thereafter, the case was ordered transferred to this court for hearing and decision pursuant to Rule 62(a), California Rules of Court. ⁵

were convicted, following a jury trial, of violation of either Penal Code section 320 ² (contriving, preparing, setting up, proposing and drawing lottery) or Penal Code section 322 ³ (aiding or assisting in setting up, managing or drawing a lottery) and of violating Municipal Code section 4140.7 ⁴ (carrying on and conducting a game of chance played with balls).

THE FACTS

The cases at bench arose out of a game called RINGO conducted by defendants in the amusement zone at 130 West Pike, Long Beach, California, on August 23, 1974, and September 3, 1974. It was stipulated at the trial that defendant Shira had been issued a 100-seat 'Amusement-Skill' business license on June 6, 1974, by the City of Long Beach to operate RINGO for an annual fee of $5,700. ⁶

The premises where RINGO was played were at all times open to the public at large and no admission fee to enter the premises was charged to any person. The rules and mechanics of the game substantially as hereinafter described were conspicuously posted on the premises and distributed to the public at large.

The game called RINGO consists of numerous individual games played over a period of time. Each game is played in three phases as follows:

PHASE I

All persons participating in the game sit at one of twenty tables. Each table contains five seats. Each seat is opposite and three to four feet from a peg. Each person is given one small red ring free of charge.

Each person who successfully tosses the red free ring (approximately 1 1/2 inch inside diameter) over the peg (approximately 1 inch outside diameter) opposite his seat is given two 'Bingo' cards free of charge and is allowed to participate in the second phase without charge.

Each person who is unsuccessful in encircling the peg with the free red ring could, but is not obligated, to buy as many white rings (approximately the same size as the red ring) as desired for 25 cents each and receives two 'Bingo' cards with each white ring purchased.

If he is successful in encircling the peg with any purchased white ring, his 25 cents is refunded and the player is allowed to keep the two 'Bingo' cards and enter the second phase of the game.

If the player is unsuccessful in tossing any white ring over the peg, the operators retained the 25 cents.

PHASE II

All those persons remaining in the game after the red and white ring toss (phase I) is completed are required to cover a row of numbers with penny sized white chips, in any direction, on any one of their 'Bingo' cards (no two cards are exactly alike and the center number is free) as the matching or corresponding numbers were called out on a random basis from a squirrel cage type device containing 75 consecutively numbered ping pong balls. The numbers called are also indicated on an electrical sign for viewing by the players. The first person or persons who successfully cover a row of numbers qualifies for the final phase of the game.

PHASE III

Those person(s) who first successfully cover a row of numbers on their 'Bingo' cards during phase II are provided, without charge, three larger rings to be thrown over a thicker peg. No one other than the 'Bingo' winner(s) are permitted to participate in this final portion of the game.

The person who successfully throws at least one of the three larger rings (3 1/4 inch inside diameter) over the thick peg (2 inch outside diameter) wins the prize.

The prizes vary from $10, $15 to $25 depending on the type of game. The larger prizes are given when the entire card is required to be covered in a 'blackout' or 'cover all' 'Bingo' game during phase II. The amount of the prize is declared prior to the commencement of each game.

The person who is unsuccessful in encircling at least one of the three large rings over the peg wins nothing and the game is over.

The reporter's transcript of the trial ⁷ reflects that the prosecution and defense evidence was primarily directed at the issue as to whether skill or chance predominates in the RINGO game.

Testimony at the trial established the success factor of tossing the small red and white rings (phase I) and one of the three larger rings (phase III) over the pegs as follows:

A. The small red and white rings (phase I)--The prosecution witness, arresting Officer Harry Welch of the Long Beach Police Department, testified, based on personal experience and observation, that the success factor of encircling a small peg with a small red or white ring is 25 percent and the likelihood of failure is 75 percent.

Defendants' expert witness Dr. Robert Dilworth, a Professor of Mathematics specializing in probabilities and statistics, testified, based on experiments with RINGO consisting of 160 games conducted with ten student players, that the success factor of tossing one of the small red or white rings over the peg is 12 percent and the likelihood of failure is 88 percent. For the sake of brevity, the defense expert testimony as to success and failure percentages on the small rings will be used for discussion purposes. The result would be the same if prosecution testimony was used.

B. The three large rings (phase III)--Prosecution witness Officer Welch testified that from 85 percent to 90 percent who Officer Welch further testified in respect to the small red or white ring tossing portion of the game (phase I) that since the rings were not exactly concentric but a 'little bit egg-shaped, lopsided', with a weight differential, it is 50--50 skill and chance; that about 1,000 'Bingo' cards were confiscated and that in his opinion 'Bingo' is strictly a game of chance and that chance also predominates in RINGO. ⁸

win at 'Bingo' in phase II could get at least one of the three large rings on the peg and that 10 percent to 15 percent miss on all three rings.

Defense witness Dr. Robert Dilworth testified that in his opinion the difference in size and weight of the rings had very little effect and skill predominated in the ring throwing portion of RINGO (phases I and III) and that in his opinion skill dominates over chance as to who will win a prize in RINGO. He testified on cross-examination that no one could win a prize without winning at 'Bingo' (phase II).

Defense witness Gary Lorden, also a Professor of Mathematics who participated with Dr. Dilworth in his experiments with RINGO, testified that in his opinion the game of RINGO is predominantly a game of skill. During cross-examination of Dr. Lorden, the following colloquial occurred:

'Q Doctor, isn't the Bingo portion of the game the predominant determiner of who gets to throw those larger rings for the prize?

'A I'll go further than that, and say that it is the absolute determiner of who gets to throw the large rings for the prize. There's no question about it.'

Defendant Hagen testified that he had previously operated 'Bingo' games at various locations and has been connected with RINGO for about twelve years; that he is proficient in tossing rings over pegs and shows players at 'The Pike' the technique in holding the rings. He testified that he 'drew up' and originated the game of RINGO but a friend of his (a Harry Lee) had it patented. He denied he had told Officer Welch that no one could operate a RINGO game without his consent and permission and that he (Hagen) had the patent.

On rebuttal, Officer Welch testified that, 'He (Hagen) told me that he was there to assist (defendant) Shira in setting up and operating the game of Ringo. He said that he held the patent rights on Ringo; also that he was the owner of a horse race room in Las Vegas, Nevada. He said that he had control over where the game of Ringo would be operated. When questioned regarding his control over the game and not being on the business...