BOMPENSIERO v. SUPERIOR COURT

EDMONDS, J.

By this proceeding in prohibition, Frank Bompensiero challenges the jurisdiction of the superior court to try him upon an indictment which names him as one of several persons who participated in the acceptance of bribes by a public official. He questions the sufficiency of the indictment to charge, and of the evidence before the grand jury to establish, the alleged crimes. He also attacks the trial judge's action in striking from the record a statement disputing the qualification of the judge to rule upon preliminary motions.

According to the evidence before the grand jury, Charles E. Berry was District Liquor Control Administrator of San Diego and Imperial Counties. It was the practice of the Board of Equalization to rely upon the recommendation of the district administrator as to the issuance of a new on-sale liquor license. Berry was the sole official in the district empowered to make such a recommendation.

Several owners of cafes or restaurants in the district testified that they paid substantial sums of money in excess of the statutory fee to obtain a new license. In a typical transaction the owner, having made unsuccessful application to the office of the district administrator, would contact a third party intermediary who assertedly could arrange to have the license issued. Upon payment to that person of several thousand dollars, the owner was instructed to renew his application with the assurance that a license would be forthcoming. After a new application, the license issued through normal channels.

Several persons were named in the indictment with Bompensiero as having acted as intermediary between Berry and the restaurant owners. However, in only one transaction is Bompensiero directly linked with the granting of a license. The evidence in that regard is as follows:

In the winter of 1950, Gillenberg approached Provart, an employee in the district administrator's office, and discussed the possibility of obtaining a seasonal on-sale license. After two or three of such conversations, Provart spoke to Berry about the matter. They agreed that Gillenberg could qualify for a license, but Provart was instructed to tell him it would cost $5,000 to have it issued. A counterproposal of $3,500 was made to Provart and conveyed to Berry. They discussed the advisability of having Bompensiero "talk to" Gillenberg, and Provart was told to tell Gillenberg that "Frank will come and see him."

A man who identified himself as "Frank B." called upon Gillenberg and told him he could get a license but it would cost $5,000. When Gillenberg expressed doubt, he was told to ask Provart if "Frank B. is all right and if I know what I am talking about." Provart assured him that Frank B. could be depended upon.

A short time later, Gillenberg made application for a seasonal license. Two or three weeks passed without action upon it. He then received a telephone call instructing him to meet Frank B. in the lobby of a designated hotel and to have the money with him. There he met the man previously identified to him as Frank B., and they discussed payment. A cashier's check for $5,000 at first was refused, but after further conversation the check, which when presented to the grand jury bore the indorsement "Frank Bompensiero," was accepted. The license was issued in April, 1951, and soon afterwards, Berry gave Provart $400 as his share of the "Gillenberg deal."

Gillenberg had been told by Bompensiero that after a year from the time the seasonal license would be issued, he could reapply and receive a general license. Such an application was made by Gillenberg in October, 1952. After about three weeks in which no action upon the application was taken, a man identifying himself as Bennett called upon Gillenberg. Bennett told him he could obtain a general license only after payment of $2,500. Gillenberg agreed and paid the amount to Bennett in cash. A few days later he reapplied for the general license, and it was issued.

The indictment was returned on September 1, 1954. In Count I, Bompensiero and several other persons are accused of "Conspiracy to Commit the Crime of Asking and Receiving Bribes by a Public Officer" in that they "within 3 years last past . . . did agree to ask and receive bribes on behalf of Charles Berry." Eight overt acts in furtherance of the alleged conspiracy are asserted, including Bompensiero's instruction to Gillenberg, on February 27, 1951, to apply for a seasonal license and Bennett's demand for $2,500 for a general license made on October 25, 1952.

In Count X, it is alleged that Bompensiero and others on April 3, 1951, "did ask and agree to receive" a bribe from Gillenberg upon an understanding that the vote, opinion or action of Berry upon matters officially before him would be influenced. A similar charge is made in Count XI, in which it is asserted that Bompensiero and others "did ask and agree to receive a bribe" from Gillenberg on October 25, 1952. The indictment also included several other charges against Bompensiero.

When arraigned, Bompensiero moved to quash the indictment and filed a written demurrer to it. All of the counts against him were dismissed except Counts I, X and XI, with regard to which his motion was denied and the demurrer overruled. He then filed an "Affidavit and Application for Removal of Trial Judge." The court ordered the document stricken on the ground that it was frivolous and sham.

As grounds for issuing the writ of prohibition Bompensiero contends that the trial judge exceeded his jurisdiction in striking the "statement and affidavit" from the record. He also argues that the evidence before the grand jury is insufficient to establish probable cause for believing him guilty of the offenses charged in Counts I and XI. Count X, he asserts, on its face shows the bar of the statute of limitations.

[1] The ground of asserted disqualification of the trial judge is "personal bias and prejudice" against Bompensiero, allegedly demonstrated by two statements made by him while presiding over a separate trial of some of the persons named in the indictment. In that proceeding, Bompensiero was called as a witness for the prosecution and refused to answer on the ground that his testimony might tend to incriminate him. Several other witnesses were called and claimed the same privilege. During arguments upon a motion for a new trial, the trial judge remarked that he had "believed the witnesses for the prosecution" and expressed the opinion that "if the Board of Equalization wants to do their duty, I think what they should do, instead of picking on these fellows that came in here, they should also revoke the licenses of those that were called before a body, under oath, and refused to testify on the ground that whatever testimony they might give would tend to incriminate them." Bompensiero asserts that he holds a liquor license and thus is in the category mentioned in the latter statement.

These remarks, made in a criminal prosecution in which Bompensiero was only indirectly involved and without indication that he was being singled out, show so little basis for claiming personal bias or prejudice against Bompensiero as to justify the conclusion that the charge of disqualification is sham and frivolous. In that circumstance, the trial judge was not in error in striking the statement and affidavit. ( Cf. People v. Darby, 114 Cal.App.2d 412, 439 [ 250 P.2d 743]; People v. McCullough, 100 Cal.App.2d 101, 111 [ 223 P.2d 37].) [2] There is also another basis for the order. Section 170 of the Code of Civil Procedure requires that, in a court of record, a statement of disqualification of the trial judge "shall be verified by oath in the manner prescribed by section 446 of this code for the verification of pleadings." Bompensiero's statement was not verified and, upon that ground, is formally defective and was properly stricken out. ( Cf. People v. Kirk, 98 Cal.App.2d 687, 693 [ 220 P.2d 976].)

With regard to the sufficiency of the evidence to support the indictment, Bompensiero urges that Count I charges only a single, general conspiracy to ask for or receive bribes on behalf of Berry. As he views the evidence before the grand jury, it does not show that he conspired with any of the other persons accused of being intermediaries for Berry, but connects him only with Berry and Provart. The count may not reasonably be construed as charging a series of isolated conspiracies, he argues, but even if it may be so read, the only one which includes him terminated more than three years before the indictment was returned and is barred by section 800 of the Penal Code.

[3] Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. ( People v. Nagle, 25 Cal.2d 216, 222 [ 153 P.2d 344].) An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. ( Lorenson v. Superior Court, 35 Cal.2d 49, 56, 59 [ 216 P.2d 859]; cf. Greenberg v. Superior Court, 19 Cal.2d 319, 322 [ 121 P.2d 713].)

[4a] The evidence before the grand jury presents a close question as to whether it shows probable cause to believe a general conspiracy existed and that Bompensiero was a part of it. The similarity of manner in which contact was made with the restaurant owners and the bribery accomplished tends strongly to suggest a common plan of participation, although that evidence alone probably would not show Bompensiero's connection with it. However, Berry's discussion with Provart concerning the advisability of having Bompensiero "talk to" Gillenberg suggests some reason to suppose he would agree to do so, possibly because he had acted in a similar capacity previously. Bompensiero's statement to Gillenberg in regard to the issuance of a general license after a year implies knowledge of the manner in which Berry and his associates generally operated. Also, in each case the bribe given for a general license was either $7,000 or $7,500; the requirement that Gillenberg pay an additional $2,500 for the general license after paying $5,000 for the seasonal one, was consistent with this pattern.

[5] The rule governing the sufficiency of the evidence to justify a suspicion of a conspiracy has been summarized as follows: "Direct proof of a formal understanding between parties to the conspiracy is not required as the basis of an indictment or information. `[I]t was not necessary for the State to prove that the parties actually came together, mutually discussed their common design, and after reaching a formal agreement set out upon their previously agreed course of conduct. The extent of the assent of minds which are involved in a conspiracy may be, and from the secrecy of the crime usually must be, inferred by the jury from the proofs of the facts and circumstances which, when taken together, apparently indicate that they are parts to the same complete whole.'" ( Lorenson v. Superior Court, supra, 35 Cal.2d 57-58.) [4b] The grand jury was justified in the belief that each of the transactions in which a bribe was accepted was part of a single general conspiracy to invoke a bribe for each new liquor license issued throughout the district.

[6] In this situation, the prosecution of the crime charged in Count I is not barred. Proof that one of the overt acts in furtherance of the conspiracy occurred after the time before which the statute of limitations would be a bar is sufficient, and evidence of acts occurring before that time may be received to show the conspiracy. ( People v. Gordon, 71 Cal.App.2d 606, 629 [ 163 P.2d 110].) Here, several overt acts are alleged to have occurred within three years prior to the date the indictment was returned.

[7] Bompensiero correctly contends that there is no direct evidence which connects him with the offense charged in Count XI. However, since a general conspiracy reasonably may be supposed to have existed, prosecution under this count may proceed upon the theory that a criminal offense in furtherance of the conspiracy is charged.

Bompensiero argues that under section 800 of the Penal Code, the applicable period of limitation for the offense charged in Count X is three years. He points out that it is there alleged that the offense was committed on or about April 3, 1951, more than three years preceding the return of the indictment. The position of the attorney general is that the six-year period specified for "the acceptance of a bribe by a public official or a public employee" is applicable.

An indictment for any other felony than murder, the embezzlement of public money, the acceptance of a bribe by a public official or a public employee, or the falsification of public records, must be found, and information filed, or case certified to the superior court, within three years after its commission. An indictment for the acceptance of a bribe by a public official or a public employee, a felony, must be found, and the information filed, or case certified to the superior court, within six years after its commission."

[8] Count X does not charge that he accepted a bribe, but only that he "did ask and agree to receive" a bribe. However, the offense charged in that count is in the language of section 68 of the Penal Code, which in turn is similar in wording to other provisions which prescribe punishment for a public official who "asks, receives, or agrees to receive" a bribe. ( Cf. Pen. Code, §§ 86, 93, 165.) There is no provision which expressly makes punishable "the acceptance of a bribe by a public official or a public employee." Reasonably construed, section 800 refers to those statutes under which a public official who "asks, receives, or agrees to receive a bribe" may be punished.

Another argument is that Bompensiero is not a "public official or a public employee," and is charged only with aiding and abetting a public official to receive a bribe. Construed strictly in his favor, he asserts, section 800 may not be read as prescribing the six-year period for one, not a public official, who merely participates in the receipt of a bribe.

In jurisdictions where aiding and abetting the commission of a criminal act is made a distinct offense, the statute of limitations which controls prosecution for the criminal act is held not to apply to the offense of aiding and abetting. The general statute of limitations applicable to "other offenses" is held to control. ( Dinklage v. State, (Tex.Crim. App.) 117 S.W.2d 111, 112; State v. Patriarca, 71 R.I. 151 [ 43 A.2d 54, 58, 160 A.L.R. 387].) But in the Patriarca case it was specifically stated that a different rule might apply when the Legislature has removed the distinction between one who commits a crime and one who aids in its commission. The court said that it "must follow the common law, as long as our legislature does not abrogate it and declare accessories before the fact to be principals." (P. 58.) And in State v. Bachmeyer, 247 Wis. 294 [ 19 N.W.2d 261], it was held that the statute of limitation applicable to the substantive offense applies to one who participates as a principal.

[9] Section 971 of the Penal Code provides in part: "The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of a felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, shall hereafter be prosecuted, tried, and punished as principals. . . ." (Emphasis added.) Reasonably construed, this section expresses a legislative intent to abolish the distinctions made at common law as to the various types of participants in the commission of a crime and to make all of them subject to the same procedural and substantive limitations.

[10] Section 800 of the Penal Code provides no exception to this rule. Contrary to Bompensiero's position, it does not specify a period of limitation based upon the identity of the offender, but differentiates among the types of criminal acts. It places in one category "any other felony than murder, the embezzlement of public money, the acceptance of a bribe by a public official or a public employee, or the falsification of public records." (Emphasis added.) It places in another category the "acceptance of a bribe." Because Bompensiero may be prosecuted, tried and punished as principal for the criminal act of "acceptance of a bribe by a public official," Count X of the indictment is not barred by limitation.

The peremptory writ is denied and the alternative writ discharged.

Gibson, C.J., Shenk, J., Traynor, J., Schauer, J., and Spence, J., concurred.