People v. Fontes

Opinion

DUNN, J. After a jury trial, appellant was found guilty, under count II of an information, of occupying a bar on January 7, 1969, with a book, papers and paraphernalia used for bookmaking on horses in violation of Penal Code section 337a, subdivision 2, a felony. The information contained four counts in all, including one count charging bookmaking, each based upon a subdivision of Penal Code, section 337a. One prior felony conviction was charged.1 Proceedings were suspended; appellant was placed on probation for three years and appeals from the order. (Pen. Code, § 1237, subd. 1.) Two points are raised on this appeal.

I. Sufficiency Of The Evidence

The court instructed the jury on that portion of subdivision 2 of Penal Code section 337a pertinent to the evidence as follows: “Every person who, whether for gain, hire, reward or gratuitously, keeps or occupies, for any period of time, any room, place or enclosure, of any kind, or any part thereof, with any books, papers or paraphernalia, for the purpose of recording or registering any bets or wagers, or any purported bets or wagers, upon the result or purported result of any contest or purported contest of skill, speed or power of endurance between horses or other beasts, is guilty of a crime. To constitute this offense it is not necessary, however, that any bets or wagers shall have been made.”2

There was ample evidence to sustain the verdict of guilty. Appellant was seen seated in a booth at “The Burlap Bag”, a bar located at 858 East Kohler in Los Angeles, by police officers very experienced in bookmaking activities. He was observed apparently receiving a bet on a horse race and, when arrested, was found to possess a current copy of a “scratch sheet,” a betting “marker” and a pen. Expert testimony disclosed that the sequence of numbers recorded on the marker was typical of recording methods used by “handbook” operators; that the marker showed the recording of $2 “place” bets on parlays and that racetracks do not accept place bets of this type; that the bets recorded totaled $16 and, when arrested, appellant had [653]this sum on his person; that only “bookies” use this shorthand code method; and that persons intending to bet at the races on their own account customarily mark the scratch sheet or a program and do not use a separate marker. This evidence is sufficient. (Generally, see: 2 Witkin, Cal. Crimes (1963) 561-562, § 610, and cases cited.)