People v. Garland

BROWN (Gerald), J. Defendant, together with James E. Glenn and Amuel O’Neal Miles, was tried by a jury and found guilty of violating Penal Code section 337a, subdivisions 1-4 and 6, relating to bookmaking. After defendant’s motion for new trial was denied, judgment was imposed on one count only of ten counts on which defendant was declared guilty; defendant was granted five years’ probation conditioned upon serving three months in the county jail.

Of the three persons convicted, defendant alone appeals, contending misconduct of the court and district attorney, erroneous instructions to the jury, and error of the court in failing to sentence defendant on the remaining nine counts.

On February 27, 1962, an investigator entered a house in Santa Ana, California, took a seat and leafed through a daily [584]racing form and a scratch sheet. Defendant was seated at a table apparently playing cards with other men and a woman. Bets were made on horses, and there was conversation about betting, someone inquiring for Glenn and defendant telling him he would find Glenn in the bedroom. The investigator returned to the house the following day, observed a woman circulating about with a pad of paper, talking to people including defendant, who made notations on cigarette papers. Race results were received periodically by radio. A telephone rang frequently. The investigator was asked if he wanted anything and after he looked through a racing form, he said he saw no horse upon which he wanted to place a bet. Next day, on returning, the investigator placed a bet with Miles on a horse and when he remarked on his luck in winning and that he might bet again, defendant told him he could not be that lucky twice. Another party inquired how much was paid on wagers and defendant replied, “We pay 30 to win, 15 to place. ’ ’ Miles conferred frequently with defendant who made notations on cigarette papers. On the fourth day the investigator asked defendant to take a bet and defendant referred him to Miles.

The police then raided the house. They found Glenn in the bedroom scooping money off the bed. The toilet was flushing in the bathroom. Defendant had $748 in his possession. Miles and Glenn had $3.00 and $47 respectively. Expert testimony established various items seized and placed in evidence as being “horse parlor” paraphernalia. In the two hours following the raid the phone rang between fifteen and twenty times.

Appellant first contends error of the court in instructing the jury on conspiracy, since the crime of conspiracy was not charged. There is ample evidence from which the jury might have inferred the existence of conspiracy among defendant, Glenn, and Miles to carry on a bookmaking enterprise. Instructions on conspiracy, CALJIC Nos. 931-934, were proper to define “a factual basis upon which, if proven, the acts and declarations of the several coconspirators would be competent evidence against all.” (People v. Ditson, 57 Cal.2d 415, 447 [20 Cal.Rptr. 165, 369 P.2d 714]; People v. Davis, 48 Cal.2d 241, 250 [309 P.2d 1] ; People v. Richardson, 182 Cal.App.2d 620, 623 [6 Cal.Rptr. 61].) There was no error in instructing the jury on conspiracy even though no conspiracy was charged.