People v. Aguilar

California Court of Appeal Jun 17, 1963 No. Crim. 8583Published

Before: Files

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Holding. The court held that the defendant's arrest and forced entry were lawful, the jury's verdicts were not necessarily inconsistent, and the trial judge's improper communication with the jury via the bailiff did not require reversal absent a showing of prejudice.

Issues

Whether the forced entry and subsequent arrest were illegal.
Whether the jury's acquittal on the bookmaking count rendered the convictions on other counts inconsistent.
Whether the trial judge's communication with the jury through a bailiff constitutes reversible error without a showing of prejudice.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The forced entry into the house and the subsequent arrest were not illegal.”

“It is clearly improper for the trial judge to instruct the jury through the agency of the bailiff.”

“Defendant’s failure to offer any evidence as to the contents of the communication justifies the application of the familiar rule that prejudice will not be presumed.”

FILES, J.

In separate counts of the information defendant was charged with violation of Penal Code, section 337a, subdivisions 1 (bookmaking), 2 (occupying an enclosure for recording bets), 4 (recording a bet), and 6 (making or accepting a bet). A jury found defendant not guilty of violating subdivision 1 and guilty of the other three counts. The trial court suspended proceedings and placed defendant on

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probation for one year, conditioned upon payment of a $150 fine. Defendant appeals from the order granting probation.

Beyond question the evidence is sufficient. Deputy Sheriff Mardiros received information which led him to believe that a bookmaker was using the telephone number Ludlow 1-6418. At the sheriff’s request the telephone company supplied the street address of the residence where that telephone was located. Deputy Mardiros and four other deputies went to the vicinity of the house. From a nearby public telephone Deputy Mardiros telephoned Ludlow 1-6418 and placed bets on horse races. After the party answering had accepted the first bet, Officer Mardiros signaled to the other deputies. The others ran to the door of the house, knocked, and shouted, “Sheriff’s Department,” two times. There was no response so the officers forced the door. As they entered they saw defendant seated at a table with a telephone receiver in his hand. On the table were a National Daily Reporter, the racing section of the Los Angeles Herald Express, and several other papers which were later identified as betting markers. One of the officers took the telephone instrument and spoke to Officer Mardiros, who was still on the line. On the margin of the newspaper appeared notations of the bets which Officer Mardiros had made over the telephone. Defendant admitted to the officers that the notations were in his handwriting, and “he had only been doing this a short time and that he had, I believe he stated, 15 or so bettors and that he bankrolled his own action. ...”

At the trial defendant took the witness stand and testified concerning the manner in which the officers had broken into the house. He did not deny that he had accepted and recorded the wager, nor did he deny the admissions to which the officers testified.

The forced entry into the house and the subsequent arrest were not illegal.

People v. Aguilar

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FILES, J.

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