People v. Warner

• Decision Date: 21 March 1969
• Docket Number: Cr. 3340
• Citation: 270 Cal.App.2d 900,76 Cal.Rptr. 160
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California,Plaintiff and Respondent, v. Roy Hansel WARNER, Defendant and Appellant.

Page 160

76 Cal.Rptr. 160

270 Cal.App.2d 900

The PEOPLE of the State of California,Plaintiff and Respondent, v. Roy Hansel WARNER, Defendant and Appellant.

Cr. 3340.

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

March 21, 1969.

Hearing Denied May 14, 1969.

Robert J. Simpson, San Bernardino, for defendant and appellant.

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

OPINION

TAMURA, Associate Justice.

Following a jury trial defendant was found guilty of conspiracy to commit bookmaking, pronouncement of judgment was withheld and he was granted probation subject to certain terms and conditions. Defendant appeals from the order granting probation and also purports to appeal from the 'judgment.' Judgment not having been pronounced, the purported appeal therefrom must be dismissed. (People v. Jones, 36 Cal.2d 373, 375, 224 P.2d 353.)

The indictment on which defendant was tried included four others (Clyde Clark, Clarice Jeannie Clark, David Simons, also known as David L. Scott, and Patricia Martin.) Clyde Clark and David Simons plead guilty and were the principal witnesses for the prosecution.

Defendant is a boxing and wrestling promotor and owner of the Main Event Bar in San Bernardino. Clyde Clark was a former police officer of the City of San Bernardino. In February 1967 he was an employee of a private detective agency and was assigned on certain nights as a security officer at defendant's bar. On February 15 defendant told Clark that he knew a person who was willing to finance a bookmaking operation in San Bernardino and asked whether he was interested. About a week later, following a purported conversation with Officer Powers of the San Bernardino Police Department with whom he had served, Clark told defendant that if he would finance the operation, he (Clark) would arrange for police protection. A few days later defendant asked Clark to accompany him to Los Angeles to meet some people who were interested in the venture.

On February 23 the two drove to an actor's home in Beverly Hills where they met Casey Tibbs and David Simons; Tibbs was a rodeo rider with whom defendant was acquainted and Simons was purportedly an experienced bookmaker. The group discussed the prospects of a successful operation in the San Bernardino area. Clark indicated that he could arrange for protection; defendant stated that by reason of his wide acquaintance in the area he could provide players; and Tibbs and Simons offered to raise money to finance the venture. It was agreed that defendant and Clark would each receive six percent of the net profits plus $200 per week, and that $200 per week would be appropriated for protection. The group agreed to meet the following Monday at the Main Event Bar and then look for an apartment where the operation would be conducted.

The following Monday defendant, Clark, Simons and Tibbs met at the Main Event Bar and left immediately in Simons' car in search of an apartment. They found a suitable apartment, defendant was returned to the bar, and the others went to the realtor and rented the apartment.

Clark was to arrange for telephone service in the name of 'David Scott' (Simons) but was unable to do so because Simons did not have credit. Pursuant to Clark's request, Simons, who was then still residing in Los Angeles, came to San Bernardino and he, defendant and Clark went to the telephone company. Simons had difficulty in establishing his credit so defendant requested to see the manager. The manager told defendant that if he would guarantee payment of the bills, service would be recommended. Defendant agreed and cosigned for the service. The telephone was installed on March 7.

Following installation of the telephone Simons occupied the apartment during the day and accepted bets. He set up a system whereby bettors were assigned numbers so that a person calling to place a bet would give his number, Simons would check it against his list of assigned numbers and, if the number given was on the list, the bet would be taken. Simons would meet the players once a week; if they won, he would pay them off, and if they lost he would collect. Clark and Simons were each assigned a number.

Meanwhile Clark contacted Officer Powers to arrange protection. Powers reported the matter to his superiors and was instructed to continue meeting with Clark. At one of the meetings Clark paid Powers $50 and in the course of another meeting, when Powers indicated that he had to know the names of the persons involved in order to provide police protection, Clark revealed the names of the individuals including that of defendant.

Two other officers assigned to assist in the investigation met Mrs. Clark and Patricia Martin in a restaurant and were given telephone numbers to call to place bets. One was that of the apartment and the other of Clark's residence. The officers subsequently placed bets by calling the numbers given them.

Defendant took the stand and denied approaching Clark on the subject of bookmaking, denied ever going to the actor's home in Beverly Hills with Clark and denied accompanying Clark, Simons and Tibbs in search of an apartment. His explanation for co-signing for the telephone service was as follows: Clark told him that he had rented an apartment in which to conduct a baby-sitting service, that Simons was to live in the apartment temporarily while assisting Clark in a business survey for realtors, and that he (Clark) was having difficulty obtaining telephone service. Defendant accompanied Clark and Simons to the telephone company and while they were waiting to see the manager, Simons made a telephone call and requested defendant to speak to the party on the line. The other party was Tibbs who requested defendant to co-sign for the service for Simons.

Defendant testified that on March 11 Clark told him that arrangements had been made for police protection and requested him to produce players but that he refused to become involved; that several days later Clark stated that since defendant had co-signed for the telephone service, he was as 'guilty' as Clark and threatened to 'break' the Warners unless defendant joined the conspiracy; that despite the threats defendant refused to become involved even to the extent of visiting the apartment where bookmaking was being conducted; and that following his refusal, Clark's attitude towards defendant became cold and indifferent.

In rebuttal, the prosecution was permitted to introduce, over defendant's objections recorded telephone calls made by defendant's wife to Clark's apartment immediately following defendant's arrest. The calls were recorded by officers who had arrested Clark and his wife. Upon entering and making the arrest, the officers attached an induction coil and recording device to the telephone. When the telephone rang, one of the officers answered. A female voice later identified at that of Mrs. Warner asked whether it was 'Clyde' and the officer answered in the affirmative. Mrs. Warner then asked whether anyone else was present and whether the phone was tapped. She then stated that her husband had just been arrested for bookmaking and continued, 'I'm on my way up there now with the checkbook and everything, so watch your damn step and find out what the hell's going on.' A short time later Mrs. Warner called again and asked 'Clyde?' to which the officer replied, 'No.' Mrs. Warner nevertheless proceeded to ask, 'You find out anything?'; stated that the police had taken her husband; that the bail was set at $5500; that her husband told her to call 'and let you know and see what you could find out'; and concluded by saying, 'Get your ear to the ground, buddy, and find out who in the hell's doing what, who the stool pigeon is.'

Mrs. Warner was called by the defense to explain the calls. She testified that when she was notified of her husband's arrest, she called Clark immediately because she had been told that he had threatened to 'break them' and was concerned that he may have been responsible for her husband's arrest.

Defendant's principal contentions are that the court erred in permitting the prosecution to introduce Mrs. Warner's recorded telephone calls into evidence because (a) the evidence was improperly offered in rebuttal; (b) the evidence constituted inadmissible hearsay; (c) the recordation of the calls violated Mrs. Warner's Fourth Amendment rights. The contentions are non-meritorious.

The evidence was properly received in rebuttal. The order of proof rests largely in the sound discretion of the trial court. (Evid.Code, § 320; Pen.Code, § 1093, subd. (4), 1094; People v. Pike, 58 Cal.2d 70, 93, 22 Cal.Rptr. 664, 372 P.2d 656; People v. Wein, 50 Cal.2d 383, 407, 326 P.2d 457.) The fact that the evidence may have tended to support the People's case in chief did not render it improper rebuttal evidence. (People v. Pike, Supra, 58 Cal.2d 70, 92, 22 Cal.Rptr. 664, 372 P.2d 656.) Unlike People v. Carter, 48 Cal.2d 737, 312 P.2d 665, cited by defendant, where crucial evidence connecting defendant with the crime charged was withheld by the prosecution for rebuttal, evidence of Mrs. Warner's calls was not crucial to the People's case in chief. As will be presently shown, the evidence was properly received to discredit defendant's testimony concerning the nature of his relationship with Clark.

Defendant argues that the evidence was inadmissible under the exception to the hearsay rule permitting declarations of a co-conspirator made during the existence of and in furtherance of a conspiracy to be received against a co-conspirator (Evid.Code, § 1223; People v. Ferlin, 203 Cal. 587, 599, 265 P. 230; People v. Morales, 263 A.C.A. 407, 412, 69 Cal.Rptr. 402) because the requirement that there be some independent evidence that the declarant was a co-conspirator was not met (Evid.Code, § 1223, subd. (c); People v. Ferlin, Supra; People...