People v. Sica

• Decision Date: 07 August 1952
• Docket Number: Cr. 4781
• Citation: 112 Cal.App.2d 574,247 P.2d 72
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. SICA et al.

Page 72

247 P.2d 72

112 Cal.App.2d 574

PEOPLE v. SICA et al.

Cr. 4781.

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

Aug. 7, 1952.

Rehearing Denied Aug. 21, 1952.

Hearing Denied Sept. 4, 1952.

Russell E. Parsons, Los Angeles, for appellant Joseph Sica.

Philip Erbsen, Los Angeles, for appellants Weisbart and Chaiken.

Joseph H. Wolf, Los Angeles, for appellants Alfredo Gerardo Sica and Emilie Ann Williams.

Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendants were convicted of a conspiracy to violate section 337a of the Penal Code and each subdivision thereof. They have appealed from the judgment and from the order denying their motion for a new trial on the grounds of the insufficiency of the evidence and errors of law in certain rulings that occurred during the trial.

The evidence established that Chaiken and Weisbart were proprietors of a service station on North Main Street, in Los Angeles, where from time to time they were visited by defendants Joseph and Alfredo (Fred) Sica. Having suspected unlawful acts were being committed by the four men, the police installed a dictaphone in the station and established a listening post at a distance of about 300 feet. Between the post and the station was a chain link fence through which the officers looked directly into the station to observe all who came and departed. The officers knew Joe and Fred Sica and the sounds of their voices. Many of the telephonic conversations coming in were recorded while the officers listened to and made notes of all the conversations concerning which they testified. The incoming calls were received at periodic intervals from 'Carmen' at which times bets on horse races which had been received by Joe and Fred Sica, Weisbart and Chaiken were reported to her. Commencing on March 31, 1951, the officers heard and took recordings of the conversations at the station over a period of 13 days. Chaiken reported a cash bet by 'Ernie' on 'Short Sale' at Bay Meadows, and a bet on 'Carry Message,' $2 to win. Weisbart took a call from 'Carmen,' gave it to Chaiken who in turn placed a bet for 'Fred,' parlayed from 'Pater' to 'Slow Poke,' and placed a bet for 'Frank' on 'Miss New Year.' April 3d Chaiken forwarded cash bets for 'Lloyd' on 'Royal Saint,' 'Sun Rene,' 'Deep Secret' and 'Baby Battler,' running at Bay Meadows. Chaiken called in two bets 'across the board' on 'Gray Arrow,' for 'Frank' and took a bet from 'Duff,' $5 across the board on 'Baby Battler.' These he reported to 'Carmen.' When that lady called, Weisbart told her he had some bets and 'Freddie would call them in.' April 4th Chaiken forwarded a 'round robin' on 'Thelma Bago' and 'Battlefield' and two bets on 'British Isles' and one on 'Trade Winds' for one 'Fred.' Chaiken reported other bets to Carmen. When she called on April 5th, to inquire whether they had other bets, Chaiken reported a bet for 'Sam' to win on 'Loose Change,' and bets on 'Solano,' 'American Glory,' 'Dispatcher,' 'Don Conejo' and 'Bangston.' Subsequently Weisbart and Chaiken reported to Carmen bets on 'Chick's Delight,' 'Sponsor,' 'High Notion,' 'Powder Dry,' 'Grog's Swizzle,' 'Chick's Delight,' 'Presidente,' 'The Bam,' 'Pacomialad,' 'Vistison,' 'One Pint,' 'Mucho Hosso,' 'Yeckes,' 'Foxy Green' and 'Great Dream.' During the 13 days' lookout, 'Carmen' called constantly on the telephone in the service station and received names of bettors, horses, amounts of bets and race tracks. At the station the conversations were about bettors and their successes, race tracks in the east, horses currently running, the amounts and names of bettors. Each of the male defendants was at the station daily or called on its telephone to engage in conversations about betting. In some instances Joe Sica instructed his codefendants on the art of handling bets, specified the amounts of expense money to be advanced to agents, assigned numbers to them, and arranged for the checking of sheets every night and for them to be left at Chaiken's home on South Houser Boulevard.

'Carmen,' who participated in the telephonic conversations with those at the service station, was defendant Williams, an intimate of Fred Sica, sometimes known as Ann Starke. After the officers had arrested Fred Sica, near Chaiken's home on Houser Boulevard at 1:00 A.M. on April 12, they discovered in his automobile a telephone bill to Ann Starke for apartment 1 at an address on North Laurel Avenue. They caused Fred to recover from Chaiken's mail box an envelope containing betting markers and top sheets which contained '22,' the agent's number, the names of bettors, also betting markers, indicating bets on horses, also a white sheet with '44,' an agent's number and the names of bettors, the status of their accounts, and other inculpatory proof. Later, on the same day, a police officer gained admittance into the 1421 address on Laurel Avenue, and after 'Carmen' had denied knowledge of the 'sheets,' the officer found them in the secret compartment of a chair. Included in the package thus recovered were: California Digest for the four preceding days, betting markers and top sheets. On one of the sheets for the 12th was the number '44' and the names of bettors; on another was '22.' Also, there were markers for the same day for other bettors under agents '10,' '11,' '99' and '88.' The officer found Ann Starke's telephone bill for $40.91, marked paid March 12. She stipulated that the notations on all papers found in her possession were in her handwriting as well as the notations on the top sheets and betting markers for horse races, taken from Fred Sica's car and Chaiken's mail box. The California Digest for April 12 showed that Miss Williams had recorded the winners and the mutuels for Laurel and Jamaica Race Tracks. Also in the apartment was a photograph of 'Carmen' and Fred Sica whom she had known since 1946 and who had assisted her to move in. Prior to her arrest she had telephoned the service station: 'Carmen; have you got anything'? Officer Lestelle answered: 'No, not just yet.' He recognized her voice when she called again. The top sheets and betting markers were shown by expert proof to contain the code numbers, name of agent, rundown on names of bettors, amounts wagered on various horses, showing their index number to win, place or show, and the amount to be collected from the bettors. Many other items showing the character and extent of the defendants' operations were introduced into evidence but they are of kindred import to those recited above.

Defendants' first contention is that the evidence is insufficient to establish a conspiracy. The gist of a criminal conspiracy is a corrupt agreement of two or more persons to commit an offense prohibited by statute, accompanied by some overt act in furtherance of the objects of the conspiracy. Pen.Code, secs. 182, 184; People v. Brownstein, 109 Cal.App.2d 891, 892, 241 P.2d 1056; People v. Pierce, 110 Cal.App.2d 598, 243 P.2d 585. The existence of the agreement may be established by circumstantial evidence. People v. Steccone, 36 Cal.2d 234, 237-238, 223 P.2d 17. The agreement may be inferred from the acts and conduct of the defendants in mutually carrying out a common purpose in violation of the statute. People v. Benenato, 77 Cal.App.2d 350, 358, 175 P.2d 296; People v. Brownstein, supra. It is not necessary that the overt acts be criminal. People v. Gordon, 71 Cal.App.2d 606, 628, 163 P.2d 110. If such acts are done as a step toward the furtherance of the conspiracy they are sufficient. People v. Gilbert, 26 Cal.App.2d 1, 23, 78 P.2d 770. Further, the overt act may be accomplished by only one of the conspirators and yet be sufficient, for all the members of the conspiracy are bound by all acts of all members done in furtherance of the agreed plot. People v. Creeks, 170 Cal. 368, 374, 149 P. 821; People v. Pierce, supra. Applying these principles it is clear the jury was amply warranted in drawing the inference that a plan and agreement existed among the defendants to carry on a bookmaking enterprise in violation of the various subdivisions of section 337a of the Penal Code and that the acts performed by the several defendants were in accordance with and in furtherance of such plan and agreement.

The contention of Joe Sica that the evidence relative to a conspiracy merely shows suspicion and association is in disregard of the record. The evidence is that the apartment on North Laurel Avenue had been rented to Fred Sica and Williams and that it was being used as a 'phone spot.' The voice of Williams was identified as that of the person who called herself 'Carmen.' Fred Sica was caught at 1:00 o'clock in the morning delivering top sheets and betting markers to Chaiken's mail box, to which he had a key. These top sheets contained the agent's numbers '22' and '44' which had been assigned to Chaiken and Weisbart by Joe Sica who had made arrangements for the delivery of the sheets. Bets on horse races were taken at the gasoline station by Chaiken and Weisbart. They telephoned them to Williams, who used the name 'Carmen' when she called. Both Joe and Fred Sica gave instructions to Chaiken and Weisbart with reference to their taking of bets and relaying them to Williams. The bettors handled by Chaiken and Weisbart were those for whom Williams accounted at her apartment. They included LaPorte whose telephone number was given to her so she could call him direct for his bets. The conversation at the station centered around betting and settling up of accounts and bets by all defendants except Williams. Such evidence, without going further, goes far beyond mere suspicion and association, and shows a well-organized business being operated by these defendants in a consciously cooperative fashion in violation of section 337a, supra.

Joe Sica contends the evidence is insufficient to show him to be a co-conspirator. The testimony, however, of the police...