People v. Starr

• Decision Date: 24 September 1970
• Docket Number: Cr. 16009
• Citation: 89 Cal.Rptr. 906,11 Cal.App.3d 574
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Nicholas STARR, Defendant and Appellant.

Page 906

89 Cal.Rptr. 906

11 Cal.App.3d 574

The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Nicholas STARR, Defendant and Appellant.

Cr. 16009.

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

Sept. 24, 1970.

Hitt & Murray and Anthony Murray, Long Beach, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Thomas Kallay, Deputy Atty. Gen., for plaintiff and respondent.

FOURT ^*, Associate Justice.

This is an appeal from a judgment of conviction of one count of bribery.

In an indictment filed in Los Angeles on December 28, 1967, defendants Karl L. Rundberg and Robert Nicholas Starr were charged in count 1 with bribery in violation of the provisions of section 68 of the Penal Code in that they did on or about the 30th day of March 1967 in the County of Los Angeles corruptly receive from Keith Smith a bribe, namely, office furniture and equipment for the purpose of influencing the votes of defendants and upon the agreement that the votes, opinions and actions of defendants upon official matters then pending before them in their official capacity as members of the Board of Harbor Commissioners of the City of Los Angeles and upon matters which might thereafter be brought before the defendants in their official capacity should be corruptly influenced. Count 2 had to do with the receipt of $6,047.58 in money from Smith.

In a jury trial each defendant was found guilty as charged in count 1 and not guilty as to the charge contained in count 2. Each defendant was sentenced to the state prison and then granted probation under certain terms and conditions. Karl Rundberg appealed from the judgment. He passed away before that appeal was heard and this court ordered on April 30, 1969, that his appeal be abated. Starr appealed from the order granting probation.

A re sume of some of the facts is as follows: appellant was appointed to the Board of Harbor Commissioners on August 31, 1965, for the term ending July 1, 1970. The appointment was confirmed by the City Council on September 8, 1965, and he was sworn in as a member of the Board on September 8, 1965. He resigned at the request of the Mayor on June 27, 1967, the resignation to take effect upon the confirmation of a successor. A successor was appointed.

Mr. Donald Silver, a pathologist, was the owner of Medical Science Laboratory, Inc.; in the summer of 1966 negotiations between him and appellant and Rundberg were entered into with reference to Rundberg's and appellant's purchasing certain shares in the laboratory business. Appellant and Rundberg came into the business as associates (one-third each) and about April 1967 the building facilities of the business were removed to a location on Vermont Boulevard. Appellant was in charge of the administration of the business Rundberg served as president and Dr. Silver functioned as Director of Laboratories.

In about June of 1968 the secretary-treasurer of Warren Imports Interiors saw, on the premises of the Medical Science Laboratories, certain furniture, consisting among other items of a large executive desk, three black leather chairs, a red table, screens, wooden panels, conference table and chairs and a back unit for an executive desk. The major items mentioned excepting the screens were billed by Warren Imports Interiors to Keith Smith on December 29, 1965, at the Pacific Trade Center. The screens were billed on May 4, 1966. The value of these items according to the billing was $14,650.70.

Keith Smith was a real estate developer in the area of the harbor and he either owned or had a controlling interest in several corporations which did business with the harbor commissioners. Among such corporations were Altamira, Inc., Altamira Construction Company, San Sebastian Development Company, Fieldale, Inc., and the Trade Center Development Corporation. Smith had several matters before the Harbor Commissioners, among others, a lease by the Harbor Department for certain space in the Pacific Trade Center (a Smith building) for $160,125.00 per year dated October 5, 1965, and which was still in effect during the periods with which we are concerned. Starr voted for the execution of such lease. Also there was a lease of space by the Harbor Department from San Sebastian Development Company in a building to be constructed by San Sebastian Development Company on Terminal Island at an annual rental of $303,000.00. Starr voted to approve the lease and later voted in favor of an assignment from San Sebastian Development Company to Trade Center Development Corporation. Starr also voted favorably on an application for a revocable permit for the use of a building on Terminal Island by Altamira Construction Company and further Starr was involved in an application by Channel Investment Company for a large hotel to be constructed on Harbor Department land. Smith's Altamira Construction Company was to do the architectural work on the project and was to be paid $35,000 for certain preliminary work if the lease was granted. There was further an application for a 50-year lease for the construction of a multi-million dollar World Trade Center. Starr voted for the granting of the lease and later voted in favor of an assignment of the lease to Trade Center Development Corporation.

Starr and Rundberg each owned one-third of Medical Science Laboratories and through negotiations by Rundberg, Medical Science Laboratories supposedly purchased the furniture heretofore referred to from Fieldale, Inc., a solely owned Smith Corporation. The furniture was delivered to Medical Service Laboratories on March 30, 1967, and part of it was returned sometime later. Rundberg and Poortinga, Smith's controller, supposedly arrived at a price of $6,500 for the furniture retained by Medical Science Laboratories which had supposedly cost San Sebastian Development Company in excess of $14,000 when new. Medical Science Laboratories was never billed for the furniture, no invoice was ever sent to Medical Science Laboratories and no chattel mortgage or conditional sales agreement was ever executed for the furniture. The third associate in Medical Science Laboratories, Dr. Silver, was never told by his associates that the furniture came from Smith or one of the latter's corporations. The books of Medical Science Laboratories indicate that the furniture was acquired from Starr and Rundberg and no liability item is recorded either to Smith or any of his corporations.

Starr was questioned by a representative of the district attorney on October 30, 1967, at which time supposedly the district attorney was unaware of the furniture transaction. Starr was asked among other things, whether Smith had anything to do with Medical Science Laboratories and Starr replied in effect that Smith had no interest in it--that Rundberg had talked with some of the Smith construction people who had done some work on the laboratory facility and that such work had been paid for and that there were no other transactions between Smith an Medical Science Laboratories.

On about December 11, 1967, Starr was again questioned by a representative of the district attorney and at that time he admitted that Medical Science Laboratories had received some furniture from Smith.

At the trial the jury was instructed that 'Evidence of an oral admission of the defendant ought to be viewed with caution.'

Apparently no instruction was offered or given defining an admission such as is set forth in CALJIC 2.71. No instruction to the effect that the corpus delicti must be proved independent of any admission was given or offered by either side.

The jury, according to the minutes of the court, was instructed on July 11, 1968, and retired and started to deliberate at 10:45 a.m. of that date. A verdict was not reached on the first day of deliberation and the jury was then locked up overnight and resumed their deliberations at 9 a.m. on July 12, 1968. A verdict was not reached on July 12, 1968, and the jury was again locked up for the night. Deliberations were resumed on July 13, 1968, at 9 a.m. and at 5:55 p.m. the jury returned the verdicts of guilty on count 1 and not guilty on count 2 as to both defendants. In other words, the jury deliberated for three full days. The record on the motion for a new trial indicates quite clearly that all of the jurors voted for the not guilty verdict as to count 2 and then voted for the guilty verdict as to count 1 after at least some of the jurors engaged in conduct which raises a question regarding the validity of the verdict. (See People v. Hutchinson, 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132.)

Appellant makes many contentions; however, under the circumstances, it appears that it is only necessary to consider one of them, namely, the failure to give the instruction with reference to the establishment of the corpus delicti.

The Attorney General admits that it was error to fail so to instruct but argues that the evidence of the corpus delicti was amply established by the testimony of several witnesses and that the error was not prejudicial.

Our Supreme Court as early as 1875 in People v. Thrall, 50 Cal. 415, 416, said: 'But even if we assume against the prisoner that, besides his own extra-judicial confessions, there was evidence given at the trial tending to prove the Corpus delicti, the instruction asked would not, for that reason, be the less pertinent, nor would it be of less importance that the jury should be instructed that his guilt could not be established alone by his extra-judicial statements or confessions.'

In People v. Quarez (1925), 196 Cal. 404, 408--409, 238 P. 363, 364, the court stated: "The rule is clearly established in this state that the extrajudicial statements or admissions of a defendant, in the absence of other evidence of the commission of the crime charged against him, are insufficient to establish his guilt (citations); and they are equally insufficient to...