Willens v. Superior Court

Opinion

BRAY, J.* Petitioners, raising identically the same questions separately, petition for writs of prohibition and mandate to direct the San Joaquin County Superior Court to halt proceedings in connection with indictment No. 21872 pending against them in said superior court.

Alternative writs of mandate were issued directing the .dismissal of count II of said indictment within 10 days or for respondent to show cause why the count should not be dismissed. Relief was denied as to all other counts of the indictment. Respondent declined to dismiss count II and filed a return.

Sole Question Presented

Were petitioners indicted in count II without reasonable and probable cause?

Record

On December 8, 1970, petitioners were charged in count II with violar tion of section 93 of the Penal Code (judicial officer asking, receiving or agreeing to receive a bribe) in that on or about February 1, 1968, in San Joaquin County, they asked, agreed to receive and received a bribe from Edwin Arioto in the sum of $1,000 upon the agreement and understanding that the opinion and decision of petitioner Willens (then a judge of the [359]superior court) would be influenced in the case of Slakey Brothers of Stockton, Inc. v. Arioto, then pending before him.1 Demurrers to the indictment and motions to dismiss under section 995 were made by petitioners and denied by the trial court.

Evidence

The only direct evidence to support the count II charge is the testimony of Arioto, the defendant in the Slakey case. He testified that that case which was pending before Judge Willens was an important case to- him. Arioto had dealt with petitioner Weisinger on a previous occasion and was aware of the fact that Weisinger at least purported to be a “fixer.” During or shortly after the trial in the Slakey Brothers case, Arioto’s attorney informed him that the case “didn’t look too good.” Arioto proceeded to contact Weisinger to have the case fixed. Weisinger wanted to know who the judge was, and Arioto told him that it was petitioner Willens. Weisinger said he would see what he could do. The following day Weisinger indicated that he had somehow gained access to the case record and told Arioto that the case looked tough, but that he (Weisinger) could “fix” the case for $1,000. Subsequently, Arioto gave the $1,000 to Weisinger. When he gave Weisinger the money, Weisinger said something to the effect that “Everything is taken care of.” The outcome of the Slakey Brothers case was favorable to Arioto.