Opinion
Cr. 6134
8-22-1958
PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph CASTALDIA, Defendant and Appellant. *
Kenneth W. Gale and David A. Fall, San Pedro, for appellant. Edmund G. Brown, Atty. Gen., and Carl Boronkay, Deputy Atty. Gen., for respondent.
PEOPLE of the State of California, Plaintiff and Respondent,
v.
Joseph CASTALDIA, Defendant and Appellant.
Aug. 22, 1958.
Hearing Granted Oct. 15, 1958.
Kenneth W. Gale and David A. Fall, San Pedro, for appellant.
Edmund G. Brown, Atty. Gen., and Carl Boronkay, Deputy Atty. Gen., for respondent.
VALLEE, Justice.
In a jury trial defendant was convicted of having unlawfully accepted a bet on January 19, 1957 on a horse race. Pen.Code, § 337a, subd. 6. He appeals from the judgment and the order denying his motion for a new trial. He first contends the evidence is insufficient to sustain the verdict.
In January 1957 Officer Trotsky of the Los Angeles Police Department was conducting an investigation of bookmaking in the harbor area in San Pedro. In the course of his investigation he saw defendant at least twelve times and noted his conduct. On various days defendant was seen frequenting the Bank Cafe and the Bamboo Cafe, a few doors away. Defendant would walk back and forth in one bar and then go out to another bar. In the back part of the bars unknown males would walk up to defendant, look at a 'scratch sheet,' have a conversation with defendant, and hand him currency. On several occasions defendant was seen standing in the doorway of the Bamboo Cafe. On two occasions unknown males walked up to defendant in the doorway, looked at his 'scratch sheet,' had a short conversation with him, and handed him currency.
About 3:45 p. m. on January 19, 1957 Officer Trotsky saw defendant enter the Bank Cafe and stand around the back part of the room by a street entrance for a short while. Two persons approached defendant, looked at a 'scratch sheet' or a National Daily Reporter, had a short conversation with him, and handed him some money. About 4 p. m. Officer Trotsky walked from the bar into the men's rest room. Shortly thereafter defendant and a person unknown to the officer went into the rest room and stood by the doorway between the vestibule and the rest room proper. Officer Trotsky testified: the unidentified person said to defendant, 'Make this 7 and 3, and 8 and 4; make it 20 to win on each,' and then handed defendant two pieces of currency; the unidentified person said, 'No. 5 is Terrang, isn't it?'; defendant replied, 'That's right'; defendant had both his hands in front of him and his head was pointing downward, said, 'Arrivedechi,' and the two men left.
The National Daily Reporter, or 'scratch sheet,' was a daily publication containing a list of races, the horses that were going to run on the particular day at tracks throughout the United States, and their handicap positions. Horse players in the County of Los Angeles use the 'scratch sheet' as a guide, using the number of the race and the handicap position to bet on a particular horse. The terms used by the unidentified person in his conversation with defendant signified a bet on a horse race, the 7 and 3 meaning the seventh race, third horse, and the 8 and 4 meaning the eighth race, fourth horse. The 'scratch sheet' for January 19, 1957 showed that the horse scheduled to run that day in the seventh race at Santa Anita occupying the third handicap position was 'Terrang.'
The foregoing facts, all of which were proved by competent evidence, fully sustain the verdict. People v. Burch, 118 Cal.App.2d 122, 123-125, 257 P.2d 44; People v. Chaney, 147 Cal.App.2d 740, 741-742, 305 P.2d 955; People v. Lomento, 155 Cal.App.2d 740, 318 P.2d 707.
Defendant asserts the court erred in allowing Officer Trotsky to testify to the meaning and significance of the words and figures used in the conversation between defendant and the unidentified person. Officer Trotsky was fully qualified as an expert on bookmaking matters. It is settled that the customary manner in which bookmaking is conducted and the significance of terminology employed in bookmaking are proper subjects of expert testimony. People v. Newman, 24 Cal.2d 168, 174-176, 148 P.2d 4, 152 A.L.R. 365; People v. Race, 151 Cal.App.2d 678, 684, 312 P.2d 322.
Officer Trotsky used a 'scratch sheet' dated January 19, 1957 as a basis for his testimony respecting bookmaking practices in the County of Los Angeles and the significance of the numbers and the name 'Terrang' used in the conversation between defendant and the unidentified person. The 'scratch sheet' used by the officer was received in evidence over defendant's objection. He asserts error. There was no error. The 'scratch sheet,' although not found in the possession of defendant, was properly received in evidence not for the purpose of establishing the truth of what appeared therein but for the purpose of establishing that the conversation between defendant and the unidentified person was not without meaning but was part of a system used by bookmakers generally. People v. Renek, 105 Cal.App.2d 277, 283-284, 233 P.2d 43.
During the voir dire examination of the jury, juror Angela R. Kennedy, in response to questions of defendant's counsel, stated there was nothing in the nature of a bookmaking case to cause her to hesitate to sit as a juror; and if some of the events took place in a bar that would not prejudice her in any manner; she would not suffer herself to be biased against defendant; she would consider the case solely on the evidence; and felt she could keep a free and open mind until all the evidence was in. During the voir dire examination juror James Russell stated that the fact the case might involve gambling or that some of the events might have taken place in a barroom would not prejudice him and that he would answer the questions asked Mrs. Kennedy the same way she did.
The verdict was returned on May 22, 1957. In support of his motion for a new trial defendant filed several affidavits. One was by his counsel who had tried the case. This affiant stated that on July 8, 1957 he interviewed Angela R. Kennedy, who was one of the jurors who heard the case and rendered the verdict. Angela R. Kennedy stated to him that: during her service as a juror in the case she commuted from her home to court and returned by bus; on returning to her home from court she transferred at Sixth and Harbor Boulevard in San Pedro; at the close of the first day of the trial she transferred at that point; after transferring and while waiting for the bus to depart, she had a conversation with the bus driver, named Joe, with whom she had been acquainted for more than ten years; during the conversation with the bus driver she told the driver she was a juror in a bookmaking case, that the defendant was Joseph Castaldia, that the case arose out of bets allegedly made in January 1957 at the Bamboo Hut and Bank Cafe in San Pedro, that she was going to stop at those establishments sometime and find out what kind of establishments they were, that the driver told her that during the month of January 1957 the police had arrested a number of bookmakers in the area of those cafes; she told the affiant she did not remember the exact number of bookmakers the driver told her had been arrested but she believed it was either 14 or 17; the driver told her there were a great many bookmakers at almost any establishment in the area.
A second affidavit was by Joseph Gualeni. This affiant stated: he was a bus driver; he has been acquainted with Angela R. Kennedy for 15 years; during the month of May 1957 at about 5 p. m. he had a conversation with Mrs. Kennedy in his bus while it was waiting to commence a scheduled run; Mrs. Kennedy asked him if he knew the exact location of the 'Bamboo Hut'; he told her he was uncertain as to the exact location but he believed it was located on Sixth Street in San Pedro just west of the Bank Cafe; Mrs. Kennedy told him the 'bookie' involved in the case in which she was sitting as a juror was someone from San Pedro who was picked up in the area; the case involved the 'Bamboo Hut' and she was going to take a look at it sometime; near the end of the conversation Mrs. Kennedy stated 'that she had no respect for bookmakers and that she wished that they would throw the book at all of them and put all of them away' and 'that the defendant in the case, on which she was then presently sitting, as a juror, didn't have a chance that the jury on which she was then sitting was going to throw the book at him on the following morning'; 'on occasions and dates prior to the aforesaid conversation, and at times when the subject of gambling was mentioned in the aforesaid bus or buses, the aforesaid Angela R. Kennedy did, in the presence of affiant, state that she had a dislike for gambling and persons who gambled.'
The third affidavit was by Charles W. Eddy, one of the jurors in the case. This affiant stated that: 'during the morning that said case was argued and given to the jury and while eleven of the jurors were in the jury room awaiting the arrival of a juror named Angela Kennedy, who was late, so that said matter could be resumed; one of the jurors circulated a certain newspaper article among the other jurors' (the pertinent part of the article is set out in the margin ); 'That after about the third ballot, Mr. James Russell, who was the foreman of said jury, stated that he could explain about bookmaking to the other jurors. Mr. Russell stated that he knew a great deal about things such as bookmaking for he had in fact lost his house to a bookmaker. That thereafter the said Mr. Russell spent approximately fifteen minutes explaining to the other jurors the use of a scratch sheet, how bets were made and about various means of gambling. That during the discussions and balloting, juror Angela R. Kennedy, stated that there was not enough evidence to convict the defendant, but that she just couldn't turn him loose. Said juror further stated that she was thoroughly familiar with the area in which the Bank Cafe was situated; that at every shoe shine stand, cigar stand or news-stand, one could buy a scratch sheet and place a bet anywhere.' Other affidavits of defendant and his counsel affirmatively showed that both were ignorant of the facts stated in the foregoing affidavits until after the rendition of the verdict.
There was no contradiction of the facts stated in the affidavits.
Defendant asserts jurors Kennedy and Russell were guilty of misconduct; that he was entitled to a new trial because of such misconduct; and that the court erred in denying his motion therefor.
Penal Code, section 1181, provides: 'When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: * * * '2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property; '3. When the jury has * * * been guilty of any misconduct by which a fair and due consideration of the case has been prevented; '4. When the verdict has been decided * * * by any means other than a fair expression of opinion on the part of all the jurors.'
The conduct of a juror in giving false answers to questions asked of him during selection of the jury constitutes misconduct or irregularity on his part sufficient to warrant the granting of a new trial. Sherwin v. Southern Pacific Co., 168 Cal. 722, 726, 145 P. 92; Gackstetter v. Market Street Ry. Co., 10 Cal.App.2d 713, 723, 52 P.2d 998. Affidavits may be received as to occurrences during the trial which tend to prove the existence of prejudice in the mind of a juror that would prevent him from acting impartially where the state of mind is charged to have been entertained and concealed during his voir dire examination. People v. Galloway, 202 Cal. 81, 92, 259 P. 332. An exception to the rule excluding affidavits of jurors to impeach the verdict permits the use of jurors' affidavits to show occurrences during the deliberations of the jury or the trial tending to disclose bias of a juror or another circumstance existing at the time of the voir dire examination which if truthfully declared in answer to questions actually put on voir dire would have been a basis for challenge for cause, but which was concealed by untruthful answers and could not have been detected by the party prejudiced before the end of the trial. Shipley v. Permanente Hospital, 127 Cal.App.2d 417, 421, 274 P.2d 53, 48 A.L.R.2d 964.
People v. Galloway, 202 Cal. 81, at page 92, 259 P. 332, at page 336, says: 'We think the proper rule is this: That under section 1181, subd. 3, it is within the power of the trial court to grant to an accused a new trial because of misconduct of a juror whether such misconduct consists of failure to disclose a prejudicial mind at the time he is sworn or whether such misconduct arises after he is sworn as a member of the trial jury, subject, of course, to the qualification that such misconduct will not be considered sufficient where the accused has failed to exercise diligence in the premises or has knowledge prior to the verdict of such misconduct; nor will it avail an accused when, from a consideration of the whole case, it can be seen that he has suffered no injury therefrom. In other words, a safe rule applicable to the situation would be that the court would not be warranted in setting aside a verdict on account of such misconduct unless from a review of the entire case it can be seen that the accused has not only been diligent but has suffered an injustice by reason of the action of such juror. "The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution. Upon this proposition all the authorities agree.' [Citations.] 'The holding announced above is in harmony with the declarations of practically all the text-writers. * * * '[202 Cal. at page 93, 259 P. at page 337.] Then, too, our Constitution, section 7 of article I, provides: 'The right of trial by jury shall be secured to all and remain inviolate.' A defendant is entitled to a speedy public trial by an impartial jury, and we think this right is denied him where there are upon the panel one or more jurors who have actual bias against the prisoner and have concealed or withheld the fact on their voir dire. In such case the jury is not omni majores exceptione. * * * '[202 Cal. at page 94, 259 P. at page 337.] 1 Hayne on New Trial and Appeal, page 226, states that rule as follows: 'Sec. 45. If a Juror be Examined as to his Qualifications and He does not Answer Truly, a New Trial will be Granted.--Where the party has examined the jurors concerning their qualifications, and they do not answer truly, it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing his right of peremptory challenge.''
In Shipley v. Permanente Hospital, supra, 127 Cal.App.2d 417, 274 P.2d 53, 48 A.L.R.2d 964, it was contended the exception is limited to cases of intentional concealment on voir dire. After an exhaustive review of the cases the court stated (127 Cal.App.2d at page 423, 274 P.2d at page 57): 'If the exception is correct in principle there seems no good ground to require proof of intentional (conscious) concealment. The reason for the general rule prohibiting jurors from impeaching the verdict is that 'public policy requires that the sanctity and stability of judicial determinations shall not be subject to the evidence of jurors who may be tampered with * * *.' [Citation.] The valid ground for the making of exceptions is that another interest is considered to outweigh the danger of tampering and instability. The code itself mentions as exception resort to determination by chance. § 657, subd. 2, Code Civil Procedure. The fact that a juror is disqualified by circumstances which if known would have given rise to a challenge for cause but which, notwithstanding sufficient questioning on voir dire intended to reveal the grounds for challenge, were not disclosed by the juror's untrue answers may also be considered to outweigh the ground for the rule. 'The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the Constitution.' [Citations.] The deprivation of this inalienable part of the right to trial by jury without fault of the party prejudiced is independent from the intent of the juror to conceal and the means to show such deprivation should therefore not differ depending on whether the concealment was intentional or not. * * * '[127 Cal.App.2d at page 424, 274 P.2d at page 57.] Against the whole exception it could be said that where the statute states only one situation in which affidavits of jurors may be used the court cannot add others. However this provision of the statute is contained only in subd. 2 of section 657, Code of Civil Procedure, relating to misconduct of jury, not in subd. 1, relating, among other things, to irregularity in the proceedings of the jury by which a party was prevented from having a fair trial so that the reasoning a contrario need not necessarily apply also to such irregularity. [Citation.] The impaneling of a juror who is subject to challenge for cause in consequence of untrue answers which concealed the ground of challenge is certainly such an irregularity.'
The court in People v. Banks, 39 Cal.App.2d 164, at page 167, 102 P.2d 818, at page 819, stated: 'But the judgment must be reversed for additional reasons. In connection with the proceedings on the motion for a new trial, the record reveals the likelihood or possibility of evidence outside of the record influencing the outcome of the trial, as well as the ruling on the motion for a new trial. For example, the trial judge in passing on the motion for a new trial stated the following, referring to the defendant: 'The Court: * * * I still do not believe him. I am satisfied he is a bookmaker; I am satisfied the place that he is hanging around is a bookmaking establishment. In fact, I have seen him in action myself, if that will stop him. Mr. Erbsen (defendant's counsel): Seen him in action? The Court: Yes, down at the Tiffin, and all around there. I have my lunch down there every day.''
We are of the opinion the conduct of jurors Kennedy and Russell in giving false answers to the questions put to them on their voir dire constituted misconduct or irregularity on their part sufficient to warrant a new trial therefor.
The case is a close one. Officer Trotsky was the only witness who testified for the People. At the time he overheard the conversation which he said was between defendant and an unidentified person he was standing at a urinal some 12 feet from the speakers. He had consumed at least five beers that afternoon. He said defendant was wearing a hat. He made no arrest. He did not arrest defendant until January 31, 1957. He did not at any time make any effort to ascertain the identity of the unknown person.
Defendant denied having had the conversation related by Officer Trotsky. He testified: on January 19, 1957 he was employed as a porter at the 'Bamboo Hut'; he had been employed there about two years; he owed Johnny Dee some money; on January 19, 1957, a Saturday, he saw him go into the Bank Cafe; he went into the cafe to pay him; he talked to him in the outer rest room, the bathroom is inside; it was about 4 p. m.; Johnny Dee was the only person he talked to in the rest room that day. Defendant testified further:
'Q. [by counsel for defendant] What did you say to him? A. I said, 'Johnny,' here is $20.00 that I owe you.'--on some money that I owed him.
'Q. How much money? A. I had the balance of $73.00.
'Q. Did you mention $73.00 at the time? A. Yes.
'Q. Did he say anything to you? A. Yes. He said, 'How do we stand?'
'Q. Did you have any conversation with him in regard to how you stood? A. I said, 'I gave you $8, $4 and $20.00.'
'Q. What balance did you owe then? A. $53.00.
'Q. Did you state the balance owed then? A. Yes.
'Q. Had you previously borrowed money from him? A. It was before the holidays.
'Q. Are you referring to the Christmas holidays? A. Yes.
'Q. You previously paid him $8 and $4? A. Yes.
'Q. That day you paid an additional $20? A. Yes.
'Q. How much did you borrow? A. $84.
'Q. You paid him $20.00 and $8.00 and $4.00? A. Yes.
'Q. At the time you had this conversation, as I understand, it was in the outer restroom? A. Yes.
'Q. Did you ever actually enter the restroom itself? A. No, sir.
'Q. Was there someone in the restroom? A. Yes.
'Q. What vicinity of the restroom was it in? A. At the urinals. * * *
'Q. How long were you actually in there? A. About a minute and a half.
'Q. Did you leave before Mr. Dee? A. Yes.
'Q. When you left, was there anything said to you by anyone? A. I think he said, 'So long' to me in Italian.
'Q. Can you repeat the words? A. 'Arrividecci,' and something similar to it.
'Q. Is that a term he used or you used? A. No, I never use it. * * *
'Q. What were you wearing on that day? A. I was wearing a trench coat.
'Q. Were you wearing a hat? A. No, sir. * * *
'Q. You handed him some currency? A. Yes.
'Q. What currency did you hand him? A. Four $5.00 bills.
'Q. Did he hand you any currency? A. No, sir. * * *
'Q. During that conversation, was there anything said respecting the word 'Terrang'? A. No, sir.
'Q. It was never used? A. No.
'Q. Did anybody ever ask you what their number something was? A. No.
'Q. And that money returned to him was solely for the payment of a loan? A. Yes.
'Q. Nothing was said about horse racing in any manner? A. No.
'Q. Nothing that referred to horse racing in any manner? A. No.'
John Devlahovich, called in the record Johnny Dee, testified he resides in San Pedro; his business is wholesale ship supplies; the name of his business is 'Dee's Ship Supplies'; he had a conversation with defendant about 4 p. m. on a Saturday in the middle of January 1957 in the vestibule before entering the men's restroom in the Bank Cafe. The witness testified further:
'Q. [by counsel for defendant] You went right into the vestibule then? A. Yes, I went to use the men's room.
'Q. Did you use the men's room? A. No.
'Q. Did you use it? A. No.
'Q. Was anybody in there? A. There was a person there, seemed like he was bending over the urinal. The odor was bad. I walked out and coming out I met Mr. Joe Castaldia.
'Q. You walked out? A. Never entered the restroom.
'Q. You had a conversation in the vestibule of the restroom? A. Yes.
'Q. Would that be in the outer restroom? A. Yes.
'Q. Do you recall the first thing he said to you? A. He said, 'Hello, Johnny.'
'Q. Anything after that? A. He said, 'I want to give you some money I owe you.'
'Q. Did he give you some money? A. He gave me $20.00 and says, 'This $20.00 of the $73.00 I owe you.'
'Q. What denominations did he give you? A. Four $5.00 bills.
'Q. Continue. A. I said, 'How do we stand?'
'Q. What did he reply? A. 'I will give you $8, $4, and $20, which leaves a balance of $53.00.'
'Q. How much did he borrow before? A. $85.00.
'Q. When did he borrow it? A. Before Christmas, I don't remember the particular day.
'Q. Was that the sum and substance of that conversation? A. That is it.
'Q. Did you leave right after that? A. Yes.
'Q. Prior to the time you left did you say anything to him when he left? A. Yes.
'Q. What did you say? A. 'Arrividecci.' * * *
'Q. Was there anything said about the word 'Terrang'? A. No.
'Q. Anybody ever say what number is it? A. I did not hear a thing.
'Q. Your entire conversation was regarding the money you had loaned him? A. Yes.
'Q. And what he had paid back? A. That's right.
'Q. And you left the restroom because of the smell? A. Yes, went out and used the porthole restroom. It is much cleaner.'
In rebuttal Officer Trotsky testified 'Mr. Dee' was not the man he saw with defendant on January 19, 1957, although he only got a glimpse of the person who talked to defendant.
On consideration of the entire record we cannot say that in the absence of the misconduct complained of a different verdict would have been improbable. Consequently, the misconduct constitutes a miscarriage of justice within the meaning of the constitutional provision. Const. Art. VI, § 4 1/2; People v. Newson, 37 Cal.2d 34, 45-46, 230 P.2d 618.
Other errors claimed by defendant are not likely to occur on a new trial and need not be considered.
The judgment and the order denying a new trial are reversed.
SHINN, P. J., and WOOD, J., concur. --------------- * Opinion vacated 335 P.2d 104. 1 'The evidence of police officers is often disregarded. '* * * * * 'We have it from people who have served on juries that some jurors take the position that 'you can't believe any cop.' And yet that same juror had answered no when asked if he had a prejudice against police officers. Otherwise he would have been rejected from serving on the case. Any juror who accepts service on a case involving police testimony who is antagonistic to the police, is dishonest and a disgrace to the jury system. He or she deserves to be reported to the judge.'