People v. Williams

• Decision Date: 21 December 1973
• Docket Number: Cr. 23580
• Citation: 36 Cal.App.3d 262,111 Cal.Rptr. 378
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Kermit WILLIAMS, Defendant and Appellant.

Page 378

111 Cal.Rptr. 378

36 Cal.App.3d 262

The PEOPLE of the State of California, Plaintiff and Respondent, v. Johnnie Kermit WILLIAMS, Defendant and Appellant.

Cr. 23580.

Court of Appeal, Second District, Division 5, California.

Dec. 21, 1973.

Rehearing Denied Jan. 10, 1974.

Hearing Denied Feb. 21, 1974.

[36 Cal.App.3d 264] Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Norman H. Sokolow and Bradley A. Stoutt, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

Defendant appeals from a judgment (order granting probation) following his conviction by jury trial of embezzlement in violation of Penal Code section 508. ¹ Appellant was on duty as a truck driver for Union Oil Company from midnight to 10 a.m. on Sunday, November 14, 1971. He was instructed to take 6,100 gallons of super gasoline and 2,400 gallons of regular gasoline from the Union Oil Terminal located at 135th and Broadway in Los Angeles to service station No. 4687, in Thousand Oaks, Ventura County, owned by Ray Blackburn. A replenishment delivery ticket signed by appellant was the invoice to station 4687 for his November 14, 1971, delivery. According to the ticket appellant delivered 6,270 gallons super and 2,280 gallons of regular to the station at a price to the dealer of $.304 per gallon super and $.273 per gallon regular. The delivery occurred while the station was closed. According to the ticket there were 1,300 gallons of super and 1,000 gallons of regular in the tanks of the dealer prior to the delivery of the gas from the truck. This figure is obtained by the driver by 'sticking the tank' upon arrival. A gauge stick for sticking into the dealer's tanks to determine the gallonage prior to replenishment was part of the truck's equipment.

A second delivery was made by another driver to Blackburn's station at approximately 9 p.m. Sunday evening, November 14, 1971. That driver measured the tanks and determined that prior to his delivery there were 6,980 gallons of super and 2,290 gallons of regular in the dealer's tanks. He added 2,300 gallons of super and 6,300 gallons of regular.

Mr. Blackburn arrived at his station Monday morning, November 15, and found two invoices for deliveries made to his station between November 13 and 15. Blackburn kept a monthly profit guidebook which revealed the gas sold each day at his station. It recorded the meter readings and the tank stickings each day at the close of business. Employees who opened the station the next day would double check these readings to make sure they were correct. Based on his records for November 13 and 14 and the sticking of his tanks, Blackburn concluded that he was short almost 2,000 gallons, 1,091 gallons of super and 904 gallons of regular. Blackburn requested Charles Richardson, a dealer sales representative for Union Oil Company, to inventory and station. He did so on November 15 and concluded that there was a shortage of 1,047 gallons super and 1,442 gallons regular. Frank Forester, senior auditor, performed a stock reconciliation on November 17 and concluded that a shortage of 967 gallons super and 829 gallons regular was sustained at the station on November 14. He concluded that the shortage was due to the fact that there was more gasoline in the dealer's tank prior to appellant's delivery than was represented by appellant on the delivery replenishment ticket and that appellant delivered less gasoline than represented on the ticket. For instance, appellant should have obtained a figure of 2,267 gallons of super in the tank prior to delivery instead of appellant's recorded figure of 1,300 gallons, and appellant put 5,303 gallons into the tank rather than the 6,270 gallons he reported.

The prosecution then presented evidence that appellant delivered the missing gasoline to the service station of Han Ho Choe located on Crenshaw Boulevard in Los Angeles. Forester performed a stock reconciliation on Choe's station which revealed an overage of 2,122 gallons of super as of 8 a.m. on November 14, 1971. Choe had a delivery entered on November 13 or 14 from Union Oil of which Union Oil had no record. There were three checks from Mr. Choe deposited in appellant's checking account, $300 on November 19, $300 on November 11, and $288 on November 4.

Union Oil trucks were equipped with a tachograph. This was a device attached to the speedometer cable of the truck which measured on a wax-coated chart with three steel styli the revolutions of the engine, the vehicle's speed, the distance traveled by the vehicle and time. An expert in interpretations of tachographs, Mr. Martineau, testified that as the tachograph revealed the miles traveled and where during the course of travels stops occurred, he could, by knowing the point of departure, eliminate alternative routes from that point and determine the route actually taken. He was retained by Union Oil Company to locate the 'coffee stop' indicated on appellant's tachograph chart for November 14, 1971. He determined from the chart that the location of the 'coffee stop' was the intersection of Crenshaw and Adams in Los Angeles, the location of Choe's service station. The tachograph indicated that appellant stopped at 5:54 a.m. and left in eight minutes at 6:02 a.m. This was consistent with the delivery of the missing gasoline to Choe since 300 to 400 gallons per minute could be run through the truck's bypass valve. Martineau concluded from the tachograph that appellant then left Choe's station and went in the direction of Blackburn's station in Thousand Oaks by driving north on the San Diego Freeway through Sepulveda pass. However, the tachograph box was then opened, which caused it to stop recording.

The prosecution also introduced evidence of similar conduct by appellant on October 31, 1971, to show knowledge, intent and common scheme or plan. On that date appellant was dispatched with 6,190 gallons of super and 2,430 gallons of regular to be delivered to station No. 5285 at 21471 Brookhurst in Huntington Beach. The delivery records indicated that these amounts had been delivered. However, a tank sticking by the lessee of that station, Douglas Wilson, indicated that he was short 1,338 gallons of super and 964 gallons The tachograph chart on appellant's truck was in good working order. Out of seven tachograph charts where appellant was the driver, six had been tampered with. There were no leaks in the gas tanks at Blackburn's and Wilson's service stations, and the pumps were properly calibrated.

of regular. This shortage was confirmed by an audit by Union Oil. Mr. Martineau examined appellant's tachograph chart for October 31, 1971, and concluded that an 11-minute stop which appellant indicated as 'traffic' was located at Crenshaw and Adams in Los Angeles.

Appellant testified in his own behalf, denying that he ever delivered gasoline except as instructed. He testified that on November 14 he left the Harbor Freeway at Vernon Avenue and went back to Denny's at Vermont and El Segundo where he met another driver, Russ Richards, for coffee. He then went to Blackburn's station in Thousand Oaks by way of the Harbor and Hollywood Freeways, not the Santa Monica and San Diego Freeways, and delivered his gasoline. As to the October 31, delivery appellant testified that he delivered his gasoline to Wilson's station in Huntington Beach, then made a wrong turn on the freeway on his way back to Los Angeles, and eventually got caught in a traffic jam near the Caliseum due to a football game. He testified that he met Mr. Choe early in 1970 and was a regular customer at Choe's station, since he lived nearby. He borrowed money on many occasions from Choe. Choe testified to his friendship with appellant, and how he had loaned money to appellant. Their procedure was that appellant would write Choe a postdated check, Choe would then write appellant a check for the loan, and Choe would hold appellant's postdated check until the loan was repaid.

Appellant contends that the Superior Court of Ventura County lacked jurisdiction and that the court erred in admitting Martineau's testimony, Blackburn's business records and evidence of the October 31 incident. We find these contentions without merit.

JURISDICTION

Appellant contends that the Superior Court of Ventura County was without jurisdiction because the venue could properly be laid only in Los Angeles County. He contends that no part of the crime was committed in Ventura County. The information charged appellant with embezzlement in violation of Penal Code section 508 in the following language, in that 'being an agent or servant of the Union Oil Company of California, he did fraudulently appropriate to his own use for secrete with the fraudulent intent to appropriate to his own use the property of the Union Oil Company of California of a value greater than $200.00, which property came into his control or care by virtue of his employment as such agent or servant.' He contends that under the prosecution theory of the case the gasoline was entrusted to him at the Union Oil Company Terminal in Los Angeles, and was appropriated by him for his own use when it was delivered to the service station of Han Ho Choe, also located in Los Angeles County, and that the crime was completed at that point. He contends that the acts he committed in Ventura County, that is, the falsification of the amount of gasoline delivered to Blackburn's station in Thousand Oaks, were not part of the crime but merely an effort to conceal his prior misappropriation of the gasoline in Los Angeles County. We find that the evidence is sufficient to sustain venue in Ventura County.

Penal Code section 781 provides: 'When a public offense is committed in part in one jurisdictional territory and in part in another, or the...