People v. Wolden

• Decision Date: 09 November 1967
• Docket Number: Cr. 5960
• Citation: 63 Cal.Rptr. 467,255 Cal.App.2d 798
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Russell L. WOLDEN, Defendant and Appellant.

Page 467

63 Cal.Rptr. 467

255 Cal.App.2d 798

PEOPLE of the State of California, Plaintiff and Respondent, v. Russell L. WOLDEN, Defendant and Appellant.

Cr. 5960.

Court of Appeal, First District, Division 3, California.

Nov. 9, 1967.

Rehearing Denied Dec. 8, 1967.

Hearing Denied Jan. 3, 1968.

James Martin MacInnis, San Francisco, for appellant.

Thomas C. Lynch, Atty. Gen., of California, Edward P. O'Brien, Derald E. Granberg, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for respondent.

DRAPER, Presiding Justice.

Defendant was indicted on 10 counts of accepting bribes (Pen.Code, § 68) and one count of conspiracy (Pen.Code, § 182) to accept bribes. One bribery count was dismissed on defendant's motion, and the jury failed to reach a verdict upon another. It found him guilty of the conspiracy charge and eight counts of accepting bribes. He was sentenced to prison and appeals.

Defendant was for many years the tax assessor of the City and County of San Francisco. The essence of the charges is that he accepted bribes to lower assessments upon personal property.

Defendant argues that a 'fictitious rule of law' requiring assessment at fixed percentages of actual value was imposed upon him, and that the jury may have found him guilty of the present charges merely because his 'stewardship' failed to produce taxes upon these amounts.

The record does not bear him out. There was substantial evidence that the common or rule-of-thumb assessment of personal property in his office was based upon 50% Of actual value of inventory, and 25% Of such value of equipment. It was repeatedly pointed out that many factors could contribute to lesser assessments. It was never contended that deviation below this common practice was of itself improper, much less criminal. There was evidence that substantial decreases below this guideline conjoined with payments to the assessor by or on behalf of the beneficiaries. The jury was instructed, and clearly understood, that the issue before it was not whether tax savings were enjoyed by some personal property owners, but whether the assessor accepted bribes for benefits bestowed.

Since it was made clear that there was no rigidity in the 50%--25% Valuation guide, and that there was no violation of law in deviation below that line, there was no error in somewhat restricting defendant's attempted showing of other assessments below these percentages. Further testimony along that line would have unduly cluttered the record (see former Code Civ.Proc. §§ 1868, 2044). For the same reason, the court properly sustained objection to evidence of increases in real property assessments. The court stated it would admit evidence of real property assessment increases if they were premised upon or connected with decreases in personal property assessments. No offer of such proof was made. We find no error in the rulings.

Nor was there error in permitting Newstat to testify whether, on the basis of his experience, he would have allowed certain deductions ordered by defendant. Newstat, a longtime deputy assessor, had for many years been delegated the duty of making just such judgments for the assessor, and he was thoroughly familiar with the practice of the office. Thus his testimony was admissible as that of an expert, or, if he were not so deemed, was proper to show deviation, specially ordered by defendant, from standard office practice which the witness well knew. Moreover, it is by no means clear that objection at trial properly preserved the issue for appeal.

Defendant asserts error in the refusal of his instructions 24 and 26. Both would single out named witnesses for comment on their credibility, and thus were improper (People v. Lyons, 50 Cal.2d 245, 271, 324 P.2d 556). No. 24 charges that testimony of an 'informer', without defining the term, is to 'be considered with caution and weighed with great care.' We find no authority for this asserted rule, nor for the view that the named witnesses were 'informers.' No. 26 suggests that Tooke and Newstat had been granted immunity, and advises that 'such circumstances' may be considered as bearing upon their testimony. Portions of the requested charge, e.g., the statement that defendant can 'offer criticism' of their testimony, are not a proper subject of instruction. These, and some incorrect statements of law, warranted rejection (People v. Housman, 44 Cal.App.2d 619, 628, 112 P.2d 944).

There was evidence that deputy Newstat received payments from benefitted taxpayers, portions of which he passed on to defendant. After instructing the jury that Newstat was an accomplice as a matter of law, the court stated that eight witnesses were not accomplices. As to all other prosecution witnesses, the question whether they were accomplices was left to the jury, on proper definition of the term.

Defendant asserts error in the instruction that Tooke, Skelly, Forbush and Parsons were not accomplices. Before 1915, it was held that the giver and the taker of a bribe, although guilty of different crimes under the code, were accomplices (People v. Coffey, 161 Cal. 433, 119 P. 901, 39 L.R.A.,N.S., 704). In 1915, the statute requiring corroboration of accomplices (Pen.Code, § 1111), was amended to define an accomplice as 'one who is liable to prosecution for the identical offense charged against the defendant on trial' (Stats.1915, c. 457, p. 760). It is recognized that this amendment was directly designed to abrogate the rule of Coffey (People v. Clapp, 24 Cal.2d 835, 838, 151 P.2d 237). Thus when one statute defines a crime which necessarily requires the participation of two or more persons, but fixes punishment for only one of them, and another statute separately provides that the other participant is guilty of a distinct crime, each is guilty of a criminal offense, but the offense of which each is guilty is separate and distinct from that of the other. It follows that the definitions of accessory, aider and abettor (Pen.Code, §§ 31, 971) do not operate to subject either to prosecution under the section proscribing the act of the other, and neither falls within the code definition of an accomplice as to the act of the other (id.). Bribery is such a crime. The giver whose offense is specifically made a crime (Pen.Code, § 67) is not an accomplice in the separate and distinct crime (Pen.Code, § 68) of the receiver (see People v. Clapp, supra, at p. 839, 151 P.2d 237; People v. Brigham, 72 Cal.App.2d 1, 5--7, 163 P.2d 891). By code definition, the giver is guilty only if he gives or offers with intent to influence the officer. The officer who asks or receives payment is guilty only if he does so with the understanding that his official action will be influenced thereby.

Nor are the giver and...