People v. Massengale

Opinion

JEFFERSON, J.

Oliver Massengale, Jr., and Charles Arthur Massengale appeal from the judgments following their convictions on separate charges as follows: Count I extortion of Myra Teed (Pen. Code, § 518), count II attempted extortion of Olive Fetherolf (Pen. Code, § 524), and count III obtaining a signature by extortionate means from Olive Fetherolf (Pen. Code, § 522).

The defendants pleaded not guilty, waived jury trial and submitted the matter on the transcript of the preliminary hearing. Motions for new trial were denied and the court sentenced appellants to one year in the county jail on counts I and II and 180 days on count III, all sentences to run concurrently. He then granted probation to each defendant (a period of two years for Charles and three years for Oliver) upon conditions, inter alia, that each spend the first 90 days in the county jail.

[692]

Defendants first contend that the evidence against each is insufficient as to each respective count to sustain the conviction of either.

The defendants Massengale forcibly entered upon the property surrounding certain single family dwellings and, over the objection of the elderly female occupants, trimmed trees and shrubbery, thereafter extracting high prices for their unsolicited services. The precise facts of the case are set forth at length in a prior published opinion of this court wherein the preliminary hearing proceedings were reviewed and the evidence deemed sufficient to bind the defendants over for trial. The matter having been submitted for trial on the preliminary transcript without additional evidence, we hereby adopt the statement of facts as heretofore published.

(People

v.

Massengale

(1968) 261 Cal.App.2d 758, 759-762 [68 Cal.Rptr. 415].) The evidence obviously sustains the convictions of the defendants Massengale.

Defendants contend that neither can properly be convicted of violating both section 524 (count II, attempted extortion from Mrs. Fetherolf) and section 522 (count III, extortion of signature from the same victim). The elements of the two offenses are distinct, and neither is necessarily included within the other. Attempted extortion, under section 524, requires an intent to obtain property or an official act (see Pen. Code, § 518 defining extortion and