Petition for Writ of Certiorari — Anderson v. California (No. 483)

Geet Or

j JAMES R RROWNING (LE

IN THE

Supreme Court of the United States

October Term, 1961

DOUGLAS ANDERSON and FRED PADILLA.

Petitioners,

VS.

STATE OF CALIFORNIA.

PETITION FOR WRIT OF CERTIORARI TO

THE STATE OF CALIFORNIA AND TO

THE SUPREME COURT OF THE STATE

OF CALIFORNIA. |

RUSSELL E. PARSONS.

Suite 1010

448 South Hill Street

Los Angeles 13, California

Attorney for Petittoners,

Dougias Anderson and Fred Padilla

HARRY E. WEISS

and

SHELDON W. ANDELSON.

448 South Hill Street

Low Angeles 1. Calitormia

Of Counsel

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WESTERN PRINTING COMPANY. WHITTIER, OXBOW 8.1722

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TOPICAL INDEX

ae Pace

Opinions Below 000... NOSES EA SUL ae tee Sa 3

a os q

Cieeetenrn Preseited i 5)

LIL LL ET AE Q

Statement Of The Case 0%. nnnmnneen se aye b

Specifications Of Error. ......... PCs lan ee ae Say

Statement of Facts Pertinent To The Appeal... 8

The Legal Proceedings In Nevada... 00000 . U

pees i sree .................... FB

PN ec ip a aaa, eT se hey 14

1. The Superior Court Of The State Of Califor-

nia (Trial Court), In And For The County Of

Los Angeics, Did Not Have Jurisdiction Over

The Offense Alleged, If It Be One, Which

Was Committed Within The State Of Nevada.

The Matter Had Not Progressed To The Point

In California Where Any Public Offense Was

Committed Within Its Jurisdiction. The Su-

preme Court OF The State Of California Was

li Error. The Defendants Were Denied Dae

Process Of Law By Being Required To Stand

ll Index

Pave

Trial Within The State Of California, When,

In Truth And In Fact, If Aziy Offense Was

Committed, It Was Within The State of Ne-

vada, And Nevada Accepted Jurisdiction To

The Point Of Holding The Petitioners To

Answer And Filed An Information Against

Them In The Trial Court. It Was A Denial

Of Due Process Of Law In Violation Of The

Constitution Of The United States 2...

a a.) ca dapper

Index Wh

TABLE OF CASES AND AUTHORITIES CITED

Cases

‘>

Page

baa ou Meets, FF A, a Bae nai tices

People v. Ashlev, 42 Cal. 2d 246, 258 oo WG

People v. Butfum, 40 Cal. 2d 709 2... 15, 17, 19

People v. Coe, 171 Cal. App. 2d 186 ccc cnn 16

People v. Franquelin, 109 Cal. App. 2d 777 0... 17

People v. Gallardo, 41 Cal. 2d 57, 66 002... ois

People v. Miller, 2 Cal. 2d 527 ........... Passa unacaiiviels 17

People v. Otterman, 154 Cal. App. 2d 193, 200 ..... 16

=a

a

Authorities

Penal Code, Sections 2701) amd T78a cece: 15

ee Re ee:

Penal Cede, Tete STD) acini nace nsec ty 1G

ge | |. SR CCD eer tan o

Aes ec PURI I ip sssiedhdnisnsecnenes. nsasoohendamnncs aston 5)

28 U.S.C., Section 2101(d) ................. farina oe

IN THE

Supreme Court of the United States

October Term, 1961

Dicaistcaadoes Seer

DOUGLAS ANDERSON and FREI) PADILLA.

Petitioners,

~~ VS.

STATE OF CALIFORNIA.

PETITION FOR WRIT OF CERTIORARI TO

THE STATE OF CALIFORNIA AND TO

THE SUPREME COURT OF THE STATE

_ OF CALIFORNIA.

Petitioners, Douglas Anderson and Fred Vadilla,

respectfully pray that a Writ of Certiorari issue to

review the judgments of the Supreme Court of the

State of California, which said judgments affirmed

convictions of grand theft-as alleged in Count I and

attempted grand theft in Count II, of an Information

filed by the District Attorney of the County of Los

Angeles, State of California. The defendants (your

petitioners) were comnitted to the penitentiary for

the term prescribed by law.

2

Thereafter, an appeal was taken and the matter

came on to be heard before the District Court of Ap-

peal of the State of California, in and for the Second

Appellate District, Division Three, in Criminal No.

7150; decision filed December 20, 1960.’

That court, namely the District Court of Appeai,

held that under neither count would the acts of the

defendants (petitioners) in this state (California)

amount to an attempt, and that the trial court did not

have jurisdiction to try or convict defendants of the

offenses charged in the Information. The judgments

were reversed (187 A.C.A. 627; 10 Cal. Rptr. 64).

Thereafter, a petition was filed by the Attorney

(ieneral of the State of California with the Supreme

Court, and that court, on April 20, 1961, reversed the

Appellate Court and affirmed the convictions (55 A.C.

19, p. 659).

A Petition for Writ of Habeas Corpus, or, in the

alternative, for a Writ of Error Coram Nobis, Points

and Authorities, for an Order to Recall the Remittitur,

and for a Rehearing, was filed with the Supreme Court

of the State of California, and the said Petition for

Writ of Habeas Corpus was, by said Supreme Court

of California, denied on the 13th day of September,

1961 (Minutes, Supreme Court of California, A.C. p.

seus bh

IThe District Court of Appeal is an itermediate appellate court im the

State of California.

3

A copy of the said Writ of Habeas Corpus, or, in

the alternative, for a Writ of Error Coram Nobis,

Points and Authorities, for an Order to recall the Re-

nuttitur, and for a Rehearing by the Supreme Court

of California, duly certified by the Clerk of the Su-

preme Court of the State of California, are contained

in the record filed with the Clerk of this Court.

OPINIONS BELOW

The Opinion of the District Court of Appeal of the

State of California, Second Appellate District, Divi-

sion Three, is made a part of the record herein, duly

cerufied by the Clerk of the Supreme Court of Cali-

fernia, filed herewith, and is reported at 187 A.C.A.

627 (10 Cal. Reporter 64). A copy of the said District

Court's Opinion is attached hereto in the Appendix,

marked Exhibit ‘A.’

A copy of the Petition for Hearing in the Supreme

Court of the State of California, by the Attorney Gen-

eral of the State of California, is contained in the

record, duly certified and filed herewith.

A copy of the Opinion of the Supreme Court of the

State of California, which said Opinion was rendered

April 20, 1961, is filed herewith, duly certified by the

Clerk of the Supreme Court of the State of California,

and is reported in 55 A.C. 19, p. 659. A copy of said

Opinion of the Supreme Court is attached hereto in

the Appendix, marked Exhibit *B."’

4

The Petition for Writ of Habeas Corpus was filed

with the Clerk of the Supreme Court on or about the

19th dav of August, 1961, and was by that court denied

September 13, 1961. (See Minutes, California Supreme

Court, A.C., Minutes, p. ....... ). No Opinion was filed.

The Supreme Court order merely provided: ** Petition

for Writ of Habeas Corpus denied,’* bearing the nun-

her of the Supreme Court, No. 6964, Anderson and

Padilla on Habeas Corpus.

JURISDICTION

I.

The Petition for Writ of Habeas Corpus, or, in the

Alternative, for a Writ of Error Coram Nobis, Points

and Authorities, for an Order to Recall the Remittitur,

and for a Rehearing before the Supreme Court of the

State of California, was filed on or about the 19th day

of August, and was by the Supreme Court of California

denied on September 13, 1961.

The statutory provisions believed to confer upon

this Court jurisdiction to review the judgment or order

denying the Petition for Writ of Habeas Corpus, or,

in the alternative, fora Writ of Error Coram Nobis,

and to Reeall the Remittitur, and for a Rehearing, are

28 UUS.C., Seetion 210E(d). Rules 2b and 22 (1) of

5

this Court, 28 U.S.C., Section 1207, and 28 U.S.C,

Section 2101.

QUESTIONS PRESENTED

The Superior Court of the State of California. in

and for the County of Los Angeles, the trial court. did

not have jurisdiction over an offense if it be one which

Was cominitted within the State of Nevada.

{

STATUTES INVOLVED

Section 487(1), Penal Code, California:

“Grand theft is theft conmitted in any of the

following cases:

1. When the money, labor or real or personal

property taken is of a value cecle two hundred

dollars ($200) ; provided, that when domestic fowls,

avocados, citrus or deciduous fruits, nuts and arti-

chokes are taken of a value exceeding fifty dollars

($50); provided, further, that where the money

labor, real or personal property is taken by a ser-

vant, agent or employee from his principal or em-

ployer and aggregates two hundred dollars ( $200 )

or more in any 12 consecutive month pe riod, then

the same shall constitute grand theft... .

Section 664, Penal Code, California:

“Every person who attempts to commit any

crime, but fails, or is prevented or intercepted in

the perpetration thereof, is punishable, where ne

6

provision is made by law for the punishment of

such attempts as follows:

1. Offense punishable by five years or more.

If the offense so attempted is punishable by im-

prisonment in the state prison for five years, or

more, or by imprisonment in a county jail, the

person guilty of such attempt is punishable by

imprisonment in the state prison, or-in a county

jail, as the case may be, for a term not exceeding

one-half the longest term of imprisonment pre-

scribed upon a conviction of the offense so at-

tempted;... ”’

STATEMENT OF THE ASE

By an Information filed by the District Attorney

of the County of Los Angeles, State of California, the

petitioners were charged as follows:

Count I: The said DOUGLAS ANDERSON and

FRED PADILLA are accused by the District At-

torney of and for the County of Los Angeles, State of

California, by this information, of the crime of

GRAND THEFT in violation of Section 487, Subdi-

vision 1, Penal Code of California, a felony, committed

as follows: That the said DOUGLAS ANDERSON

and FRED PADILLA on or about the 6th day of

December, 1958, at and in the County of Los Angeles,

State of California, did willfully, unlawfully and felon-

iously take Forty Nine Hundred and 00/100 Dollars

($4900), in money lawful money of the United States,

the personal property of John P. Lane.

7

Count II: For a further and separate cause of

action, being a different offense of the same class of

crimes and offenses as the charge set forth in Count

i hereof, the said DOUGLAS ANDERSON and FRED

PADILLA are aceused by the District Attorney of

and for the County of Los Angeles, State of California,

by this information, of the crime of ATTEMPTED

GRAND THEFT in violation of Section 487, Subd.

1 P.C. and See. 664 P.C., a felony, committed as fol-

lows: That the said DOUGLAS ANDERSON and

FRED PADILLA on or about the 27th day of January,

1959, at and in the County of Los Angeles, State of

California, did willfully, unlawfully and feloniously

attempt to take Four Thousand and 00/100 Dollars

($4000), in money, lawful money of the United States,

the personal property of A. B. Valenzuela.”’

Thereafter, the defendants (petitioners) were tried

by jury and convicted. Motions for new trial were

denied. Judgment was pronounced sentencing the peti-

tioners to the penitentiary. They appealed to the Dis-

trict Court of Appeal of the State of California, an

intermediate appellate court, and the convictions were

reversed.

Thereafter, a Petition for Heamne before the Su-

preme Court of the State of Califormia was granted,

and the Supreme Court of the State of Cahformia, by

its decision, reversed the District Court of Appeal and

affirmed the judgment of the trial court.

8

SPECIFICATIONS OF ERROR

The Superior Court of the State of California, in

and for the County of Los Angeles, would not have

jurisdiction to try an offense, if any, which was com-

mitted within the State of Nevada. It amounted to a

denial of due process of law, in violation of the Four-

teenth Amendment of the Constitution of the United

States, and denied to these defendants a fair trial. The

Superior Court of the State of California had no jur-

isdiction to proceed, and the decision of the learned

Supreme Court of the State of California is in viola-

tion not only of due process of law, but of its own de-

visions.

STATEMENT OF FACTS PERTINENT TO THE

APPEAL

One, John P. Lane, had known defendant, peti-

tioner Padilla about a year before December 5, 1958.

He had placed bets with Padilla. Padilla talked with

Lane about a business proposition. He introduced An-

derson to Lane under the name of McKinny, and as a

vambler from Las Vegas who had a system making it

impossible to ‘ose at roulette; that they knew the

dealers; that both Padilla and Anderson were well

known in Las Vegas as ‘‘marked”* men; and that they

needed a reputable businessman to front) for them.

They were broke and needed a businessman to front

and provide a bankroll. Lane was asked if he could

9

raise $5,000. He said he could. He asked what per-

centage of the winnings he would receive, and it was

agreed that he would get fifty percent (50%). Lane

was told to make his own reservations to Las Vegas,

which he did. Petitioners and Lane met in Las Vegas.

After arrival there, Lane was asked how much money

he had, and he said $4,000, and Anderson stated it

would take $5,000. Lane said he could, and he did, cash

a check for $1,000. Anderson met Lane and they went

to the Star Dust, a hotel and gambling casino. Lane

bought some chips and won a little bit of money at the

“erap table.’’ Sometime later in the evening, Ander-

son said, ‘‘It’s getting kind of late. We'd better cash

that money in $100 chips so we will be ready to play

roulette at 7:20. Why don’t you go ahead and continue

playing, and I will run over and get the $100 chips at

the cashier's window, and [ will be right back with your

chips. Then you can start playing roulette at 7:20.”

Anderson said, in response to an inquiry by Lane,

‘they won't give you $100 chips at the table. You have

to get them at the cashier’s window.” Lane gave

McKinny $4,900 in $100 bills with which to buy the

chips. McKinny went to the window, where Lane saw

him, and Lane turned to the dice table. Later when he

looked up, he did not see Anderson. He gambled about

fifteen minutes. He did not see MeKinny after that.

(Anderson is known as Mehinny).

Later in Los Angeles, Lane talked with Padilla and

Hy ; “NU 4

10

accused him of “setting him up.” Padilla said, ** Hon-

est, Johnny, I didn’t have nothing te do with it. I never

knew he ran out with the money.”* Later, Padilla gave

Lane a note for $4,900. The note was not paid prompt-

lv, and Lane complained to the District Attorney of

Los Angeles County.

The second count related to one, Valenzuela, who

was introduced to Padilla, and Padilla told him ‘the

had a deal in Las Vegas where they could make

inoney.’’ Valenzuela met Padilla and Anderson at a

gambling elub in Gardena, Los Angeles County, and

they talked about a deal to clean up in Las Vegas.

Valenzuela had contacted the District Attorney and

there was some recording at Valenzuela’s room. Padilla

went to Valenzuela’s house that evening. The investi-

gators from the District Attorney's office were intro-

dueed as oil men. Padilla and Valenzuela went out

for a drink and returned, at which time Padilla told

Valenzuela they were to play dice and black jack. Val-

enzuela showed Padilla a large roll of bills and said

he had $4,000. Padilla was arrested as he left the room.

11

THE LEGAL PROCEEDINGS IN NEVADA

The petitioners were charged in the Justice Court

of Las Vegas Township, in and for the County of

Clark, State of Nevada, in Case No. 103, Docket 17-A,

with a felony, in that ‘ton or about the 7th day of

December, 1958, at and within the County of Clark,

State of Nevada, being then and there bailees of

#4900.00 lawful money of the United States, the prop-

erty of JOHN PL. LANE, for the purpose of changing

same into chips, did then and there wilfully, unlawfully

and feloniously convert the same to their own use with

the intent to permanently deprive the owner thereof.

Therafter, a) preliminary examination was con-

ducted before the said court: witnesses were called and

testified, and the defendants were held to answer for

the crime of embezzlement.

Thereafter, in the Eighth Judicial District Court

of the State of Nevada, on or about August 7, 1959, in

Case No, $52, the District Attorney of the County of

Clark, State of Nevada, at Las Veeas. Nevada, filed

an Information entitled, **The State of Nevada, Plain-

tiff, vs. Douglas Roger Anderson and Fred Padilla,

also known as Freddie Estabal Padilla, Defendants,”

heinge the petitioners in this case. Said Information

charged that the defendants on or about the 7th dav

of December, 1958, at and within the County of Clark,

State of Nevada. beim them and there baihees of

4000.00. lawful moneys of the United States. the prop

12

erty of John P. Lane, for the purpose of changing

same into chips, did then and there wilfully, unlaw-

fully, and feloniously convert the same to their own

use with the intent to permanently deprive the owner

thereof, contrary to the form, force and effect of stat-

utes in such cases made and provided and against the

peace and dignity of the State of Nevada.

Thereafter, the said Information was dismissed.

SUMMARY OF ARGUMENT

It is our contention that from the facts in this case,

as hereinbefore related, no offense was committed with-

in the State of California, and, in fact, the complaining

witness was a party to a criminal proceeding in the

State of Nevada, involving the same transaction, as

shown by the summary hereinbefore set forth. A com-

plaint was filed in Nevada, in the Justice Court of Las

Vegas township, in and for the County of Clark, State

of Nevada, charging these defendants with having ob-

tained $4,900 from J. B. Lane, as bailee, ‘*for the pur-

pose of changing the same into chips and then and

there converting the same to his own use with intent

to permanently deprive the owner thereof."" As a mat-

ter of fact, a preliminary examination was held in

Nevada. The defendants were held to answer, and sub- |

sequently the District Attorney of the Eighth Judicial

Distriet Court of the State of Nevada filed au Infor-

Ination, pursuant to the order of the Justices Court,

13

holding these defendants to answer, and the Informa-

tion was couched in similar language. The Information

was subsequently dismissed, but Nevada is the state

within which the offense, if any, was committed, and

Nevada accepted and pursued jurisdiction.

These defendants never, at any time, waived the

right to assert jurisdiction, and jurisdiction itself c¢an-

not be waived, but, in fact, can be urged at any time,

and it has been raised in California in the District

Court of Appeal, which ruled in favor of the peti-

tioners, and it was again asserted before the Supreme

Court of the State of California.

14

ARGUMENT

I.

The Superior Court Of The State Of California (Trial

Court), In And For The County Of Los Angeles,

Did Not Have Jurisdiction Over The Offense Al-

leged, If It Be One, Which Was Committed Within

The State Of Nevada. The Matter Had Not Pro-

gressed To The Point In California Where Any

Public Offense Was Committed Within Its Juris-

diction. The Supreme Court Of The State Of Calli-

fornia Was In Error. The Defendants Were Denied

Due Process Of Law By Being Required To Stand

Trial Within The State Of California, When, In

Truth And In Fact, If Any Offense Was Commit-

ted, It Was Within The State Of Nevada, And

Nevada Accepted Jurisdiction To The Point Of

Holding The Petitioners To Answer And Filed An

Information Against Them In The Trial Court

It Was A Denial Of Due Process Of Law In Viola-

tion Of The Constitution Of The United States.

The Penal Code provides for punishment of. all

persons who comunit a part of a crime within this State,

or who, with intent to commit a crime, do any act within

this State, in execution or part execution of such in-

15

tent, which culminates in commission of a erime in

another state. (Pen. Code, Sections 27(1)? and 778a°.)

In People © Baffum, 40 Cal. 2d 709, it was held

that these sections, construed in the light of the general

principle that ordinarily a state cannot impose pun-

ishment for acts done outside its territory, require that

the acts of the defendants within this state amount te

at Jeast an attempt. The court said (p. 716):

“It is apparent from the authorities which

have discussed subdivision | of seetion 27 and sim-

ilar statutes in other jurisdictions that such a pro-

vision can apply where the acts done within the

state are sufficient to amount to an attempt. to

commit a crime but not otherwise... . To read

such a statute as authorizing the punishment by

one state of acts which do not amount to an attempt

but are merely preparatory to the commission of

a erime im another state would seen; tantamount

to an effort to regulate conduct in the other juris-

diction. (Citation. )

“Section 778a of the Penal Code should also

he construed as applying only where the acts done

within the state amount to an attempt. By its

terms the section is limited to acts done ‘in exeeu-

tion or part execution of* an intent to commit a

erime, and these words are comparable to the ex-

*Penal Code. section 27: “The following persons are liable to punishment

under the laws of this state:

“1 All persons who commit, in whole or in part. any crime within

this state...”

*Penal Code. section 7784: “Whenever a person. with intent to commit a

crime, does any act within this state in execution or part execution of such

intent. which culminates in the commussion of a crine cither within or without

Uhis state such person is punishable for such crime an this state in the same

manner as afl the saine had been committed entirely within this state.”

16

pression ‘in whole or in part’ as used in subdivi-

sion 1 of section 27. The statute further requires

that what is done in the state nust be of such a

nature that it ‘culminates’ in the conuuission of an

offense, and this is analogous to the requirement

in attempt cases that there must be a ‘direct’ in-

effectual act towards consummation of the crime.

(Cf. People v Miller, 2 Cal. 2d 527, 530 (42 P.

308).) Our construction of section 778a is in ac-

cord with the decision in People v. MacDonald,

supra, 24 Cal. App. 2d 702, 709-711, which held

that the section did not warrant a conviction for

contracting an incestuous marriage where it ap-

peared that the defendant and his daughter, while

in California, formed an intent to marry and then

traveled on a train from California to Arizona, in

which jurisdiction the ceremony was performed.

The question is whether under each count the acts

of the defendants in this State amounted tu an attempt

to violate Penal Code, Section 487(1).

Grand Theft under Penal Code, Section 487(1), 1s

included in theft as defined in Penal Code, Section

484, (People v. Coe, 171 Cal. App. 2d 786, 792-3), which

in turn includes larcency by trick and device and ob-

taining property by false pretenses. (People v. Otter-

man, 154 Cal. App. 2d 193, 205.) ** Although the crimes

of larceney by trick and device and obtaining property

by false pretenses are much alike, they are aimed at.

different criminal acquisitive techniques. Larceny by

trick and device is the appropriation of property, the

li

possession of which was fraudulently acquired ; obtain-

ing property by false pretenses is the fraudulent or

deceitful acquisition of both title and possession. .. .

The elements of the several types of theft included

Within section 484 have not been changed, however,

and a judgment of conviction of theft. based on a eeri-

eral verdict of guilty, can be sustained only if the evi-

dence discloses the elements of one of the consolidated

offenses.”" (People cv. Ashley, 42 Cal. 2d 246, 258.) 11

the acts of defendants comnutted in California amount

to attempts to commit grand theft, they were attempts

to commit larceny by trick and device.

‘In order to establish an attempt, it must appear

that the defendant had a specific intent to commit a

crime and did a direct unequivocal act toward that

end.’ (People v. Gallardo, 41 Cal. 2d 57, 66.) °° Prep-

aration alone is not enough, there must be some ap-

preciable fragment of the crime committed, it must be

in such progress that it will be consummated unless in-

terrupted by circumstances independent of the will of

the attempter and the act must not be equivocal in

nature.”" (People v Buffum, 40 Cal. 2d 709, 718: Peo-

ple v. Miller, 2 Cal. 2d 527, 5380.) ° Preparation is de-

vising or arranging the means or measures necessary

for the commission of the offense. The attempt is the

Airect movement toward the commission after the prep-

met toms are made” (People vo Franquelin, VOY Cal,

App. 2d 777, 784.)

18

The question is whether the representations made

by defendants amount to direct, unequivocal acts which

would lead to consummation of offenses unless inter-

rupted by circumstances independent of any actions

on their part made by the petitioners.

The most that can be said here, we respectfully

urge, is that Padilla introduced Anderson by a ficti-

tious name. Anderson was disguised and the defend-

ants told Lane they had a system which made it im-

possible to lose at roulette; that even if something

went wrong, ‘‘they know the dealers and they knew the

pit boss and everything else, and they were sure that

it was a sure thing; you couldn't lose any money what-

soever.”" Lane was to make the bets. Padilla told Val-

enzuela, **He had a deal in Las Vegas that would make

some money; he had things fixed and we could clean

up: we would probably make $10,000 or $12,000 in a

night." Anderson said he would lead; they would stay

10 or 12 feet behind him and when he told them the

piten was on they would start gambling.

The most that can be said, we respectfully urge, is

that these representations came within the range of

acts comprising some preparation, but are insufficient

asx acts amounting to attempts. Nothing was done in

California to put this plan or scheme in effect by which

they were deprived of their money. These representa-

tions, nor any of them. were sufficient to bring about

the transfer of the money of the prosecuting witnesses,

19

Who apparently were willing to enter into any scheme

to win at gambling in Las Vegas. But none of these

representations were sufficient to obtain possession of

the money, Something had to be done in Nevada to

set this entire plan into operation. Even the details of

how they would expect to win were not discussed in

California; there were no representations that the mon-

ey was to be transferred to these petitioners as part of

the plan. As a matter of fact, Lane testified that he

was to make the pitch and Valenzuela was to. start

vambling when they were told ‘the pitch was on." The

only thing which produced the delivery of the money

was the statement by Anderson to Lane, ‘tin Las Vegas”

in the gambling casino, “TI will run over and get the

#100 chips at the cashier’s window and T will be right

back with vour chips.”” It was not the plan or scheme

by which the proseention witnesses hoped to win at

eambling, but some other means which finally cost

them their money. The crime, if anv, was committed

in its entirety in Nevada. The decision of the Supreme

Court of California is against its own decisions.

As was said in People v. Buffum, 40 Cal. 2d 709

(p. 718):

**No case has been cited or found which holds

that persons can be convicted of an attempt. te

commit abortions if they do no more within the

state than make arrangements for transportation

and then take women from Califormia to Mexico

20

for the purpose of performing abortions upon

them in that country. It is our opinion that, under

the rules set forth in the Miller case (2 Cal. 2d

527), such conduct is merely preparatory and does

not constitute a direct, unequivocal act done toward

the commission of the offense specified by section

274 of the Penal Code.” 3

The Appellate Courts of California have repeatedly

held that jurisdiction may not be waived or stipulated,

and the decision by the Supreme Court of California,

we respectfully urge, flies in the face of its own pro-

nouncement, as hereinbefore set forth.

As was said in Jn re Garrity, 97 CA, 2d, 372, **The

lack of jurisdiction may not be waived |or stipulated.”

The procedural due process rule to be applied here,

it is respectfully urged, requires that [the state court

must give full force and effect to the mandatory pro-

cedural mandate of the statutes of the state where the

offense, if any, was committed. The procedural due

process requirements of the Fourtenth|Amendment to

the Constitution of the United States |jecommand this,

we respectfully urge. See Rochin v. Californa, 342 US.

165:

**However, this Court too has its responsibility.

Regard for the-requirements of the Due Process

Clause ‘‘inescapably imposes upon|this Court an

exercise of judgment upon the wholp course of the

proceedings Crestulting ina convietion) in order

to ascertain whether they offend those canons of

21

decency and fairness which express the notions of

justice of English-speaking people even toward

those charged with the most heinous offenses.”

” CONCLUSION

WHEREFORE, petitioners respectfully pray that

a Writ of Cert orarl be granted directed to the State

of California, to the end that a full hearing may be

had herein, and to the end that these petitioners be

eranted a new trial, with orders to dismiss the proceed-

ings in California for the-reasons hereinbefore set

forth; and fer such other and further relief as to the

Court may seem just in the premises.

Respectfully submitted,

RUSSELL EF. PARSONS,

Attorney for Petitioners,

Douglas Anderson and

Fred Padilla.

HARRY E. WEISS

and

SHELDON W. ANDELSON,

Of Counsel.

EXHIBIT “A”

Opinion of the District Court of Appeal, Second Ap-

"pellate District, Division Three, State of California,

filed Dec. 20, 1960.

ocumenenal

(Crim. No. 7150. Second Dist., Div. Three. Dec. 20),

1960. ]

THK PEOPLE, Respondent, v. DOUGLAS ANDER-

SON et al., Appellants. —

APPEALS from judgments of the Superior Court

of Los Angeles County. Benjamin Landis, Judge. Re-

versed.

Prosecution for grand theft and attempt to commit

grand theft. Judgments of conviction reversed.

Russell E. Parsons and Harry E. Weiss for Ap-

pellants.

Stanley Mosk, Attorney General, William FE. James,

Assistant Attorney General, and Ernest. E. Sanchez,

Deputy Attorney General, for Respondent.

2

VALLEE, J.—By information defendants were ac-

cused of grand theft and attempt to commit grand theft.

Count I accused them of unlawfully taking $4,900 cash

from John P. Lane on December 6, 1958. (Pen. Code,

§ 487, subd. 1.) Count II accused them of unlawfully

attempting to take $4,000 from A. B. Valenzuela on

January 27, 1959. (Pen. Code, §\ 487, subd. 1, 664.)

A jury found them guilty of both offenses. Mo-

tions for new trials were denied. Each defendant ap-

peals from the judgment sentencing him to state prison.

The assignments of error are: 1. The information

fails to state acts or omissions constituting a publie

offense with reasonable notice to the accused sufficient

to prepare and present a defense; 2. there is no evi-

denee of any element of either offense attempted to

be charged shown to have taken place within the juris-

diction of the State of California.

The first assignment of error which, in effect, says

neither count of the information states a public offense

has no merit. The allegations of the information are

stated in the margin.’ ‘‘Section 952 [ Pen. Code], which

\Count I: “The said Dovotas ANDERSON and Frep PapiILita are accused

by the District Attorney of and for the County of Los Angeles, State of Cali-

fornia, by this information. of the crime of Granp Tuer in violation of Section

487, Subdivision 1, Penal Code of California, a felony, committed as follows:

That the said Douctas ANDERSON and Frep PapILLa on or about the 6th day

of December, 1958, at and in the County of Los Angeles, State of California,

did willfully, unlawfully and feloniously take Forty Nine Hundred and 00/100

Dollars ($4900), in money, lawful money of the United States, the personal

property of John P. Lane.”

Count II: “For a further and separate cause of action. being a different

offense of the same class of crimes and offenses as the charee set forth in Count

I hereof, the said DouGLas ANDERSON and Frep PapiLta are accused by the

3

formerly required the pleading to set forth the par-

ticular circumstances of the offense charged, as amend-

ed, declares that it shall be sufficient if it be ‘in any

words sufficient to give the accused notice of the of-

fense of Which he is accused.” There, in a nutshell, is

stated the principle of our present simplified for of

pleading a criminal of fense—the accused is entitled to

notice of the offense of which he is charged but not to

the particular cireumstances thereof, such details being

furnished him by the transcript of the testimony upon

which the indictment or information is founded." (Peo-

ple v. Beesly, 9 Cal. App. 82, 85-86 [6 P. 2d 114, 970]:

People v. Braddock, 41 Cal. 2d 794, 799 [264 P. 2d

921].) ‘Notice of the particular circumstances of the

offense is ziven not by detailed pleading but by the

transcript of the evidence before the committing mag-

istrate (or the grand jury); defendant is entitled to

such transcript under section 870 (or $925) of the Penal

Code.” (People v. Roberts, 40 Cal. 2d 483, 486 [254 P.

2d dO1): People vr. Yant, 26 Cal. App. 2d 725, 730 [80

DP. 2d 506].)

The information is so worded as to give defendants

notice of the offenses with which they were charged.

It meets the requirements of Penal Code. sections 951

District Attorney of and for the County of Los Angeles. State of California

by this information. of the crime of Attemptep Granp THEFT in violation of

Section 487. Subd. 1 P.C. and Sec. 664 P.C. a felony. committed as follows:

That the said Dovcias ANDERSON and Frep Papinta on or about the 27th

dav of January. 1959 at and in the Counts of Taos Aneeles State of California

did willfully, unlawfully and felomiously atletipt te take Four Thousand one

v0 100 Dollars ($4,000.00). in money, lawful moneys of the United States the

personal property of A. B Valenzuela.”

4

and 952. At no time during the trial did defendants

assert they were unaware of the charges made against

them. The judgments do not, because of the form of

the information, deprive defendants of due process of

law, as they assert. (See People v. Quinn, 94 Cal. App.

2d 112, 116 [210 P. 2d 280]; People v. Vetri, 178 Cal.

App. 2d 385, 393-394 [2 Cal. Rptr. 795].)

Count I

John P. Lane had known defendant Padilla about

a year or more before December 5, 1958. He had placed

bets with Padilla on a number of occasions. About

December 5, 1958, Padilla telephoned Lane and said he

had a business proposition he wanted to make to him.

Lane said he would meet him at Pepper Mill Restau-

rant. Lane went to the restaurant. Padilla came in

with another man whom he introduced to Lane as ** Dan

MeKinny.”’ McKinny is defendant Anderson. MceKin-

ny wore a wig, a long, heavy mustache, and heavy

rimmed glasses. Lane asked Padilla what he had in

mind. Padilla said MeKinny was a professional gam-

bler from Las Vegas; they had a system which made

it impossible to lose at roulette, that even if something

went wrong, “they knew the dealers and they knew

the pit boss and everything else, and they were sure

that it was a sure thing: vou couldn't Jose any money

whatsoever.” Lane asked why he was needed. MeRinny

said both he and Padilla were well Known and marked

K)

men in Las Vegas and they needed a reputable busi-

nessman to front for them; he had won as much as

#60,000 by his system and had bought his home in Las

Vegas with those winnings. Lane again asked why they

needed him since they were doing so well. They told

him they were broke and needed a businessman not

only to front for them but also to provide a bank roll.

MeKinny asked Lane whether he could raise four or

five thousand dollars. Lane said he could and asked

what his portion of the winnings would be. He was

told he would receive 5) per cent and MeKinny and

Padilla would divide the other half. They told Lane

he was going to make the bets. MeKinny told) Lane

they would make plane reservations for him on TWA

and hotel reservations for hin at the Riviera Hotel in

Las Vegas. He was told to go alone. As they left the

restaurant, Padilla said to MeKinny, ‘Don't: forget

my share.’” MeKinny replied, ‘'T will see vou next

week,”’

Lane went to his bank and withdrew $4,000) cash.

The next dav MeKinny called him and said he had

made hotel reservations at the Riviera but had not been

able to make plane reservations. He asked) Lane to

make his own plane reservation. Lane did so, All the

foregoing facts relating to count T took place within

the county of Los Angeles, California.

Lane arrived in Las Veeas the next day. He cheeked

into the Riviera and founda note waiting for him whieh

6

read: **Dan MeKinny will eall you shortly. Unable to

meet you at the airport.”” MeKinny called him shortly

and asked him whether he had come alone and brought

the money. Lane said he had $4,000. McKinny said it

would take $5,000 “to swing the deal."’ Lane said,

‘Well, that creates no problem. I will go down and

cash a check for a thousand dollars at the hotel.”’ He

then went to a hotel on the **Strip"’ where he had credit

and cashed a check for $1,000. He returned to his room.

MeKinny arrived shortly. In a few minutes the tele-

phone rang and a person asked Lane if ‘*Don MceKin-

sev"’ was there. Lane said, **Don McKinsey, or do vou

mean Dan MeKinney ?”’ The voice said, ** Yes, T mean

Dan MeKinney.’? McKinny talked on the phone and in

a few minutes a man came into the room. He was in-

troduced to Lane as Bob Cox. Cox had a dealer’s apron

sticking out of his pocket. Cox told Lane that MeKinny

‘‘was well known in Las Vegas, knew all the pit bosses

and everything else, and he was a professional gambler,

and how he was taking different casinos and never did

an honest day’s work in his life, or words to that effeet.

And he said, ‘Tt’s a sure cineh that vou can’t lose any

money at this system.” ’’ Cox left. Lane and MeKinnv

started down to the casino. On the way Lane asked,

‘Well, where are we heading for now ?*’ MeKinny re-

plied, “We will go over to the Star Dust. This is where .

we will be playing.”? They arrived at the Star Dust

about 7 p.m. MeRinny said, Well. it’s a little carly

vet. The fellows | know, they are not around the casine

7

right now. They come on at 7:20. Why don't you try

your luck at the crap table?”

Lane bought a hundred dollars wortb of $5.00 chips,

‘made a few passes with the dice, and won a little bit

of money.”’ About 10 minutes later MeKinny punched

Lane on the shoulder and said, “It's getting kind of

late. We'd better cash that money in $100 chips so we

will be ready to play roulette at 7:20. Why don't you

go ahead and continue playing, and | will run over

and vet the $100 chips at the cashier's window, and |

will be right back with your chips. Then you can start

playing roulette at 7:20." Lane asked, **Well, can't |

vet the chips here? MeKinny replied, *‘No, they won't

vive vou $100 chips at the table. You have to get them

at the eashier’s window."* Lane gave MceKinny $4,900

in $100 bills with which to buy chips. He watched

McKinny go to the cashier's window, then turned to

the dice table and threw the dice. In about 15 seconds

he looked up and MeKinny was no longer in sight. He

continued to gamble about 15 minutes when he realized

he had been “*taken.”” He reported the transaction to

the security officer in the casino and returned to Los

Angeles the following morning. He did not see MeKin-

ny after he gave him the money.

Lane contacted Padilla in. Los Angeles by phone on

December 8 and this conversation occurred: Lane:

“Ar. Padilla it was a fine way vou set me up.” Padillie:

“What do vou mean, Johnny 2" Lane: You know darn

8

well what I mean. It was a con game all the way and

you had a part in it.” Padilia: ** Honest, Johnny, |

didn't have nothing to do with it. I never knew he ran

out with the money. Can I see you?” Lane: ** Well,

you better get over and see me quite fast.“" Padilla

went over the next morning and in the conversation

said, ‘*I never believed Doug Anderson would do that.”’

Jane asked, **Why did yeu introduce him to me as

Dan McKinney?” Padilla **put his hands up to his

face and made no comment.”’ Padilla then said he

would try to get Lane’s money back for him. A week

later Padilla said that he was unable te locate MceKinny,

calling him Anderson, that he knew Lane had been

‘*taken”’ for the money and if given time he would get

it back. On December 18 Padilla gave Lane a demand

note for $4,900. The note was not paid and Lane re-

ported the transaction to the district attorney.

Count TI

A. B. Valenzuela was introduced to Padilla about

January 1, 1959. He saw him again about January 25.

Padilla told Valenzucla ‘the had a deal in Las Vegas

that would make some money”; they would go to Las

Vegas but he would have to contact his partner and -

they would meet the next evening at the Enmibasss Club

In Gardena; Padilla said “he had things fixed’*; they

“could clean up,” and “tprobably make ten. twelve

thousand dollars in a night.’’

9

Valenzuela went to the Embassy Club the following

evening. Padilla came in with a man he introduced to

Valenzuela as ** Bill,"* Bill is defendant Anderson. Bill

hada dark, “handlebar mustache’ and wore a Wig.

They told Valenzuela how they would ‘*work“—Bill

would lead, Valenzuela would “‘stay ten or twelve feet

behind him,’ and when he told him ( Valenzuela ‘*the

pitch was on,” he was “*to go on and start gambling.”’

Valenzuela was told he would finance “the deal” and

would have to have about four to five thousand

dollars. Profits were to be shared three ways, with ex-

penses ‘off the top.” He was told that when they had

everything ready they would call him. Valenzuela gave

Padilla his business card with his telephone mamber on

it.

Padilla called Valenzuela the next day, said he had

evers thing ready, and he would meet him that evening.

Valenzuela then contacted the district attorney and two

investigators went to his home. They set upa recording

device in his bedroom and remained with him. Padilla

telephoned again and said he would be at Valenzuela’s

home at 8:30. Valenzuela said he had ¥4.000 in cash,

Padilla said it was a good deal and made some refer-

ence to the reservations. Padilla went to Valenzuela’s

home about 7:30 that evening. Valenzuela introduced

.

the investigators as “toil men” Te and Padilla went

out for about PS minutes and dad ao drink. Ob thers

return, the investigators were in the bedroom with the

10

sound equipment on, Padilla told Valenzuela they were

to play dice and blackjack in Las Vegas. Valenzuela

showed him what purported to be $4,006 in $100 bills;

he had #100 bills on the outside and $1.00 bills on the

inside.

Padilla was arrested as he was about to leave. One

of the investigators asked him, ** What's the situation

In thes matter and how did vou get mixed up i it?”

Padilla hung his head for a moment and the investiga-

tor asked him, *' Freddie, don't vou want to tell me the

story-on it?" Padilla replied, °°] don’t know how J

vet mixed up init. I’m ashamed of it.” The investi-

cator said, ‘It’s pretty obvious that this situation is

a similar one to the John Lane case.”* Padilla answered,

“} didn't get one dime of the money.”” One of the in-

vestigators asked Padilla how he arrived there. He

said he had been driven by a ** Filipino” boy he knew

as Joe. The other investigator saw a Cadillac circling

the block. Other officers stopped the Cadillac. De-

fendant Anderson was driving it. He did not have a

wig ora mustache. Valenzuela asked Anderson, ** Where

in the hell is vour mustache 7° Anderson said, ** Whe

are vou? T don't even know vou.” Valeazuela replied,

The hell vou don't... vou’re wearing the same shirt

vou had oon last might.” Anderson made no comment.

All of the facts relative to count TT took place within

the county of Los Angeles. California.

11

In essence the second assignment of error is that

on the foregoing facts the superior court did not have

Jurisdiction to try and convict defendants.

The Penal Code provides for punishment of all per-

sons Who commit a part of a crime within this state

or Who, with intent to commit a crime, do any act with-

in this state in execution or part execution of such in-

tent which culminates in the commission of a criae in

anotherstate. (Pen. Code, oo 27, subd. 1,7 778a.")

In People v. Buffum, 40 Cal. 2d 709 [256 P. 2d

317], it was held that these sectious, construed in the

hight of the general principle that ordinarily a state

cannot pose punishment for acts done outside its

territory, require that the acts of the defendants within

“this state amount to at least an attempt. The court said

(p. 716):

“Tt is apparent from the authorities which have

discussed subdivision 1 of seetion 27 and similar stat-

utes in other jurisdictions that such a provision can

apply where the acts done within the state are suffi-

cient to amount to an attempt to commit a crime but

not otherwise... . To read such a statute as author-

2Penal Code, section 27: “The following persons are hable to punishment

under the laws of this state:

“1. All persons who commit. in whole or in part. any crime within this

state... .”

3Penal Code. section 778a: “Whenever a person. with intent to commit a

crime, dues any act within this state in execution of part execution of such in

tent. which culminates in the comunissign of a crune. either within or without

this state such person is punishable for such crime in this state in the same

manner as if the same had been commitied entirely within this state.”

i

12

izing the punishment by one state of aets which do not

wnount to an attempt but are merely preparatory to

the commission of a crime in another state would seem

tantamount to an effort to reeulate conduct in the other

Jurisdiction. [ Citation. ]

*Seetion 778a of the Penal Code should also he

construed as applying only where the acts done within

the state amount to an attempt. By its terms the see-

tion is limited to acts done ‘in execution or part execu-

tion of* an intent to commit a crime, and these words

are comparable to the expression ‘in whole or in part’

as used in subdivision 1 of section 27. The statute fur-

ther requires that what is done in the state must be of

such a nature that it ‘eulminates* in the commission of

an offense, and this is analogous to the requirement

in attempt cases that there must be a ‘direct’ ineffect-

ual act, towards consummation of the crime. (Cf. Peo-

ple vy. Miller, 2 Cal. 2d 527, 530 [42 P. 2d 308].) Our

construction of section 778a is in accord with the de-

cision in People v. MacDonald, supra, 24 Cal. App. 2d

702, 709-711 [76 P. 2d 121], which held that the see-

tion did not warrant a conviction for contracting an

incestuous marriage where it appeared that the de-

fendant and his daughter, while in California, formed

an intent to marry and then travelled on a train froni

California to Arizona, in which jurisdiction the cere-

mony was performed.”

13

The sole question is whether under each count the

‘acts of defendants in this state amounted to an attempt

to violate Penal Code, seetion 487, subdivision 1.

Grand theft under Penal Code, section 487, subdi-

sion 1, is included in theft as defined in Penal Code.

section 484 (People v. Coc, V1 Cal. App. 2d 786, 7a2-

793 [342 P. 2d 43]), which in turn includes larceny by

trick and device and ovcaining property by false pre-

tenses. (People v. Otterman, 154 Cal. App. 2d 198, 205

[316 P. 2d 85].) Although the crimes of larceny by

trick and device and obtaining. property under false

pretenses are much alike, thev are aimed at different

criminal acquisitive techniques. Larceny by trick and

device is the appropriation of property, the Possession

of which was fraudulently acquired; obtaining prop-

erty by false pretenses is the fraudulent or deceitful

acquisition of both title and possession. . 2. The ele-

ments of the several types of theft included within see-

tion 484 have not been changed. however, and a judg-

ment of convietion of theft, based on a veneral verdict

of guilty, can he sustained only if the evidence discloses

-the elements of one of the consolidated offenses." (Peo-

ple v. Ashley, 42 Cal. 2d 246, 258 [267 P. 2d 271].) Tf

the aets of defendants committed in California amount

to attempts to commit grand theft, they were attempts

to commit larceny by trick and device.

Th order te establish in atterepet. tt atist ctpopoecs

that the defendant had a speeifie intent te commit. a

14

crime and did a direct unequivocal act toward that

end.”" (People v. Gallardo, 41 Cal. 2d 57, 66 [257 P. 2d

29].) ‘* Preparation alone is not enough, there must be

some appreciable fragment of the crime committed, it

must be in such progress that it will be consummated

unless interrupted by circumstances independent of the

will of the attempter and the act must not be equivocal

in nature.”’-(People v. Buffum, 40 Cal. 2d 709, 718

[256 P. 2d 317]; People v. Miller, 2 Cal. 2d 527, 530

[42 P. 2d 308].) **Preparation is devising or arrane-

ing the means or measures necessary for the commis-

sion of the offense. The attempt is the direct move-

ment toward the commission after the preparations are

made.” (People v Franquelin, 109 Cal. App. 2d 777,

784 [241 P. 2d 651].)

The conduct of defendants within this state war-

ranted a finding by the jury that defendants had the

specific intent to obtain the money of each of the pros-

ceeuting witnesses through trick and device and that the

contacts were made with them expressly for the pur-

pose of laving the groundwork to that end. The crucial

question is whether: the representations made by de-

fendants amount to direct unequivocal acts which

would lead to culmination of the offenses unless inter-

rupted by circumstances independent of any actions

on their parts.

The making of false representations may amount

to an attempt to commit theft. (See People v. Camo-

lo

deca, 02 Cal. 2d 142 [338 P. 2d 903], in which the only

further act necessary to consummate the crime of grand

theft was actual receipt of the money by the defend-

ant.) Where a defendant, with the intent to defraud,

makes false representations designed to lead another

without further word or act by defendant to transfer

possession of his property to the defendant on the basis

of those representations, the making of the representa.

tions is a direct and unequivocal act toward commission

of the crime. In such a case, the separate crime of

attempt is complete whether the thief ever obtains the

property. Tt is likewise complete in the jurisdiction

where the misrepresentations are made although he

receives the property in another jurisdiction. In the

latter situation, our courts may try and convince the

defendant of the crime of grand theft under the power

eranted by Penal Code, sections 27, subdivision 1. and

T78a. (See People v. Chapman, 55 Cal. App. 192 [203

P. 126], in which the money of the victims was relin-

quished through a correspondent bank in Boston and

credited or paid to defendant by a bank in California:

People v. Harden, 14 Cal. App. 2d 489 [58 P. 2d 675),

in which the money was transferred by the prosecuting

witness to the defendants in Tia Juana: and on receipt

of the money by them, they retumed to San Diego with

part of it in their possession, a ‘continuing trespass."

as later diseussed.) In the ceases cited, the false repre-

sentations were suffietent to set the erie tn tiotton

and to effect the transfer of the property from its

16

owner to the defendants without farther inducement

vr action on their parts.

In the present case defendant Padilla introduced

defendant Anderson by a fictitious name. Anderson

disguised himself by wearing a wig and heavy mus-

tache. Defendants told Lane they had a svstem which

made it impossible to lose at roulette; that even if

something went wrong, “they knew the dealers and

they knew the pit boss and everything else, and

they were sure that it was a sure thing; vou couldn't

lose any money whatsoever."" Lane was to make the

bets. Padilla told Valenzucla ‘the had a deal in Las

Vegas that would make some money .. ., he had things

fixed and we could clean up; we'd probably make ten,

twelve thousand dollars in a night."* ** Bill [Anderson ]

said that he would lead, and then Id stay ten or twelve

feet behind him, and when he told me the pitch was on,

for me to go on and start gambling.”’

We are of the opinion the representations come

within the range of acts comprising preparation but

are insufficient as acts amounting to attempts. De-

fendants’ representations that they had a system for

winning or that they had it fixed so they could not lose

resulted in Lane's taking his funds to Las Vegas and

were sufficient to have resulted in Valenzuela’s doing

likewise. But they were not directed to the transfer

of the prosecuting witnesses’ money to defendants: they

were directed toward arranging situations in which the

prosecuting withesses would have the Hohe ino eash

on their persons at a place conducive to fast transfer

17

of cash. They did not tend to set in motion elreun-

stances sufficient to culminate in the commission of

the grimes.

In each instance some further unequivocal act by

defendants in Las Vegas was required before either

Lane or Valenzuela would have had cause to part with

his money, Nowhere in the record is there evidence

that they were to transfer possession of their money to

defendants as part of defendants’ represented scheme.

On the contrary, Lane testified that he was to make

the bets and Valenzuela testified that he was to start

gambling when Anderson told him ‘the piteh was on.”

The direct act which led to Lane's transfer of his mon-

ev to Anderson was Anderson's fraudulent statement

to Lane in the Star Dust casino at Las Vegas: 1 will

run over and get the $100 chips at the cashier's window,

and T will be right back with vour chips.” Although

the criminal seheme had tis beginnings in this state,

it appears that, whether by design or fortune, defend-

ants’ acts in this state were not such direet and un-

equivocal acts as would have led to the consummation

of the crimes unless interrupted by circumstances in-

dependent of the will of defendants.

As said in People v. Buftum, 40 Cal. td 709 (p. TIS

[256 P. 2d 317]):

‘“*No ease has been cited or found which holds that

persons can be convicted of an attempt to commit abor-

tions if they do no more within the state than make

arrangements for transportation and then take women

18

from California to Mexico for the purpose of perform,

Ing abortions upon them in that country, It is our

opinion that, under the rules set forth in the Miller

ease [2 Cal. 2d 527], such conduct is merely prepara-

tery and does not constitute a direct, unequivocal act

done toward the commission of the offense specified

hy section 274 of the Penal Code."’

The People argue the court had jurisdiction on the

theory of ‘continuing trespass,” citing People ve Case,

49 Cal. 2d 24, 28 [313 P. 2d 840). The case is not in

point. In Case, the prosecuting witness took a plane

from Anchorage to Portland, Oregon. While the prose-

cuiting witness was asleep enroute the defendant took

her money. On arriving in Portland he admitted te

her he had taken it. By false promises to return the

money and by threats, he forced her to aces mmpany him

to several places, eventually to Los Angeles where they

both obtained employment. He was later chareed and

convicted under Penal Code, section 487, subdivision

1° On review the defendant contended the trial eourt

lacked jurisdiction. The court stated (p. 28) the de-

fendant ‘committed a ‘continuing trespass,” which is

expressly recognized by our statutes and cases. . .

*Penal Code, section 487, subdivision 1: “Grand theft is theft committed

in any of the following cases:

“1. When the money, labor or real or personal property taken is of a value

exceeding two hundred dollars ($200:: provided. that when domestic fowls.

avocados. olives, citrus or deciduots fruits. nuts. and artichokes are taken of

a Value exceeding fifty dollars ($50) : provided. further. that where the monev.

r, real or personal property is taken bv a servant. agent or employee from

his principal or employer and aggregates two hundred dollars ($200) or more

in anv 12 consecutive month period, then the same shail constitute grand theft.”

19

Section 497 of the Penal Code plainly indicates. the

Lagislature’s-intent to denounce and punish as larceny

the bringing into this state of personal property stolen

in another country or state." These sections are ap-

plicable to situations where the defendant brings the

property stolen into this state. ‘This view rests on the

theory that since the rights of possession and ownership

remain in the true owner, every act of the thief in the

removal of the property is, in contemplation of law,

a new taking and carrying away, a complete larceny

In itself." (People ve Case, supra, 49 Cal. 2d 24, 29.)

At bar there was no evidence showing that the money

obtained in Las Vegas was brought back to California.

The theory of “continuing trespass" is not applicable,

We hold that under neither count do the acts of

defendants in this state amount to an attempt, and that

the trial court did not have jurisdiction to try or con-

vict defencants of the offenses charged in the infor-

mation.

Shinn, P. J., coneurred.

FORD, J.—I dissent.

Two elements are necessary to establish an attempt,

namely, “a specifie intent to commit a crime and a

‘direct’ ineffectual act done towards its commission.”

(People v. Buaffum, 40 Cal. 2d 709, 718 [256 PL 2d

SI7T].) Tn the prevailing opinton it is stated that the

“conduct of defendants within this state warranted a

20

finding by the jury that defendants had the specifie

intent to obtain the money of each of the prosecuting

Witnesses through trick and device." [ agree with that

statement. (See People v. Darnell, 97 Cal. App. 2d

630, 6384 [218 P. 2d 172]; People v. Lyles, 156 Cal. App.

2d 482, 486 [319 P. 2d 745]; People v. Anderson, 95

Cal. App. 225, 228 [272 P. 755]; People v. Heinrich, 65

Cal. App. 510, 515.) But I believe that, as to each count,

there were acts on the part of the appellants in this

state which were sufficient, when joined with such in-

tent, to constitute an attempt. |

Inherent in the crime of larceny by trick and de-

vice is the obtaining of possession of property by means

of fraud and trickery by one who has a preconceived

design to appropriate such property to his own use.

(People v. Bartges, 126 Cal. App. 2d 763, 770 (273 P.

2d 49]; People v. McCabe, 60 Cal. App. 2d 492, 496

[141 P. 2d 54]; People v. Sing, 42 Cal. App. 385, 391

[183 P. 865].) In each instance, the fraudulent state-

ments and representations made by the appellants con-

stituted the device used by them to further their con-

fidence game. (See People v. Lafha, 174 Cal. App. 2d

312, 314-315 [344 P. 2d 619]; ef. People v. Johnson,

136 Cal. App. 2d 665 [289 P. 2d 90]; People v Darnell,

97 Cal. App. 2d 630 [218 P. 24 172].) In People v. Buf-

fum, supra, 40 Cal. 2d 709, the arranging for transpor-

tation and the actual transportation of the women

formed no part of the crime of abortion and was mere-

ly conduct preparatory in nattire rather than a direct,

21

unequivocal act done toward the commission of the

offense. But in the present case, the respective acts

m this state directed toward each intended victim

formed part of the essence of the crime intended and

constituted an appreciable fragment thereof, As stated

in People v. Von Hecht, 133 Cal. App. 2d 25, at page

39 [283 DP. 2d 764]: *And, once the design of a person

to commit crime is elearly shown, slight acts in fur-

thering of the design will constitute an attempt (?eo-

ple v. Anderson, 1 Cal. 2d 687, 690 [37 P. 2d 67) ).° An

overt act need not be the ultimate act toward the eon-

summation of the design; it is sufficient if it is the

first or some subsequent step directed towards that

end after the preparations are made. (People v. Gib-

son, 94 Cal. App. 2d 468, 470 [210 P. 2d 747]: People

1. Parrish, 87 Cal. App. 2d 853, 856 [197 P. 2d 804].)

i would affirm the judgment.

EXHIBIT “B”

-

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

THE PEOPLE OF THE STATE OF )

( ‘ALIFORNLIA, )

Plaintiff and Respondent, ) Crim.

Vv. > . -a

DOUGLAS ANDERSON and FRED ) :

PADILLA, )

Defendants and Appellants.)

Defendants, Douglas Anderson and Fred Padilla,

were charged in count 1 with grand theft and in count 2

with attempted grand theft. At their trial by jury

evidence as to count 1 showed that defendants set a

lareenous scheme in motion in Los Angeles and con-

summated it in Las Vegas; evidence as to count 2. showed

that they began to carry out a similar scheme in Las

Angeles but did not complete the theft because the vie-

tim was suspicious and notified the authorities. The

jury found defendants guilty as charged. Their mo-

tions for new trial were denied. Defendants appeal

from the ensuing judgements of conviction but not from

9

the orders denying their motions for new trial. Thev

contend that the information fails to allege public of-

fenses with suffieient particularity to give them notice

and opportunity to prepare their defense, and that the

evidence as to each count shows that the acts of de-

fendants in California amounted at most to mere prep-

aration for crime, not to criminal attempts. We have

concluded that these contentions are without merit and

that the judgments should be affirmed.

Sufficiency of the Accusatory Pleading, The in-

formation, essential allegations of which are quoted in

the margin, is ina form which is permitted by, and

has been in common use sinee, the enactment of the

following legislation mm 1927: Stats. 1927, ch. 619,

amended Penal Code, sections 484 threugh 490, and

added section 490a so that the crimes formerly known

as lareeny CGineluding larceny by trick or device), em-

lhezziement and obtaining property by false pretenses

are now all known as theft. Stats. 1927. ch. 612, amend-

ed section 952 to provide that “Tn charging theft it

shall be suffieient to allege that the defendant unlaw-

‘Count 1 alleges that defendants “are accused . of the crime of GRAND

THEFT in violation of Section 487. Sudivision 1. Penal Code of California. a

felony. committed as follows: That [defendants] .. . on or about the 6th dav

of December. 1958. at and in the County of Los Angeles. . . did willfully. un-

lawfully and feloniously take Forty Nine Hundred and 00 1090 Dollars ($4900°

in monev. lawful monev of the United States. the personal property of John

P Lane.”

Count 2 alleges that defendants ‘are accused . of the crime of AT-

TEMPTED GRAND THEFT in violation of Section 487. Subd 1 P.C. and

Sec 664 PC. a felony. committed as follows: That [defendants] on or

about 27th day of Japuary 1959 at and an the Counts of Loc Angeles

dod willfully. uadlawfalls asd felommoush attempt to take Four Thousand and

i 100 Dollars (S#000 0 in money. lawful mones of the United States the

personal properiv of A. B Valenzuela.”

3

fully took the... property of another.”” (Other amend-

ments simplifying the rules of pleading are Stats. 192%,

ch, 610, amending section 959, Stats. 1927, ch. 611,

amending sections 954 and 956, and Stats. 1927, ch. 615,

amending section 951.)

Because of the quoted amendment of seetion 992,

“it was not necessary for the information to allege the

particular type of theft involved, such as false pre-

tenses, embezzlement, or larceny by trick and Gevice.”

(People v. Nor Woods (1951), 37 Cal. 2d 554, 586 [2].)

Notice of the particular circumstances of the offense

is given not by detailed pleading but by transeript of

the evidence before the committing magistrate 2. .;

defendant is entitled to such transcript under section

870... of the Penal Code.’ (People v. Roberts (1953),

40 Cal. 2d 483, 486 [3].)

Prosecution Evidence as to Count 1. John P. Lane

from time to time had placed bets on horses with de-

fendant Padilla for more than a vear prior to Decem-

her 1958. On December 5 Padilla introduced Lane to

defendant Douglas Anderson. Anderson wore a wig

and heavy mustache and was introduced as Dan

McKinny.”* Padilla said that **MeRinny™ was a pro-

fessional gambler from Las Vegas with a roulette sys-

tem by which, according to Lane's testimony, he could

“double or triple my money in the course of a few

hours... . {T]t would he Ia posstble to Jose, and even

if thines did go wrong, they knew the dealers and thes

4

knew the pit boss and everything else, and they were

sure it was a sure thing.”” Defendants explained that

they were “*marked men in Las Vegas, and they needed

a reputable business man to front the deal for them’:

that although **MeKinny™ on several occasions had

won as much as $60,000 by his system, defendants were

currently in need of a *“*bank roll"’ of $4,000 or $5,000.

Lane believed in and relied on defendants’ representa-

-tions until the hereinafter described occasion in Las

Vegas when he decided he had been **taken."” He agreed

to supply the bank roll in return for 50 per cent of the

winnings. It was further agreed that Padilla would

receive one half of ** MeKinny‘s*" share of the winnings.

**McKinny" made a reservation for Lane at a Las

Vegas hotel. Lane withdrew $4,000 from his bank ae-

count and took it to Las Vegas. There “MeKinny™

said that ‘it would take $5,000 to swing the deal’ and

Lane cashed a check for $1,000. °° MeKinny™ repeated

his representations “about this sure proof svstem."” A

man whom ** MeRinny* introduced as °° Bob Cox" told

Lane that **MeKinny ... knew all the pit bosses and

everything else, and he was a professional gambler,

and how he was taking different casinos and never did

an honest day's work in his life... . And he said, ‘It’s

a sure cinch that vou can’t lose any money at this svs-

99

tem.’

“Cox” then left and **MeWKinny'* and Lane went

toa casino. “MeRKinny said. The fellows 1 know,

3)

they are not around the casino mght now, . . .Why

don’t you try vour luck at the crap table 2" Lane cashed

a $100 bill into $5 chips and proceeded to play dice.

**McKinny”™ said, “We'd better cash that money in

$100 chips so we will be ready to play roulette... Why

don't you go ahead and continue playing... and 1

will run over and get the $100 chips... at the cashier's

window.” Lane asked, ‘*Well, can't J get the chips

here 7° **MeKinny” replied, “No; they won't give you

#100 chips at the table.”

Lane handed ** Me Kinny" $4,900 and MeKinns

disappeared. Lane continued to play dice for 1 min-

utes, then ] more or less knew that ] was taken.” He

reported the matter to the seeurity officer of the casio

and the sheriff's department of Las Vegas, and after

an unsuccessful seareh for **MeKinny” he returmed to

Los Angeles.

On December $1958, in Los Angeles, Lane got in

touch with Padilla and told him. “ [TP ]t was e fine way

vou set me up.” Padilla said, ‘What do you mean,

Johnny?" Lane replied. “Tt was a con game all the

way and vou had a part in it.” Padilla said, ** Honest,

Johnny, 1 didn't have nothing te do with it” and

agreed to attempt te locate * MeRKinny.” Phe next day

adilla told Lane. “T never beheved Doug Anderson

would do that.” This is the first) ceasion on which

Padille in speakine te bane referred to Mebunny

by his actual name. Lane said.) thought vou dptre

6

duced me [sic] as Dan MeKinny. ... Why did vou

introduce him to me as Dan McKinny ?"' Padilla “put

his hands up to his face and made no comment.”

Thereafter Padilla told Lane ‘that he knew I was

taken for the money, and that if... he couldn't get in

touch with Doug Anderson to get the money back from

him, he would raise the money himself and deliver it

hack to me.”’

On December 18, 1958, Padilla at his own sugges-

tion executed a demand note for $4.900 to Lane. There-

after Padilla repeatedly asked for more time in which

to raise the money and Lane said that if it was not

forthcoming he would report the matter to the Los

Angeles district attorney, which he eventually did. On

January 28, 1959, Lane saw defendant Anderson, with-

out the wig and mustache, in a police lineup and identi-

fied him.

Prosecution Evidence as to Count 2. Adolph Val-

enzuela, a businessman in Los Angeles county, met

Padilla in December 1958 or January 1959. About Jan-

nary 25, 1959, Padilla came to Valenzueia and “said

that hé had a deal in Las Vegas that would make money

. ; We'd probably make ten, twelve thousand dollars

Ina night.”” Padilla arranged for Valenzucla to meet

his *partner."” The **partner,”’ defendant Douglas An-

derson, Wearing a wig and mustache, was introduced

to Valenaiela as Bill’ Defendants agreed to make

at hotel reservation for Valenzuela in Las Vegas. Val-

7

enzucla testified, ‘Bill said that he would lead, and

they... wher he told me the pitch was on, for me to

go on and start gambling ... I was supposed to finance

the deal, about four to five thousand dollars’’: win-

nings were to be divided equally among ** Bill,’ Padilla

and Valenzuela, with Valenzuela‘s expenses “off the

°9

top.

Valenzuela became suspicious of defendants’ rep-

resentations and reported the matter to the office of

the district attorney. On the night of January 27, 1959,

when Padilla visited Valenzuela‘s residence to further

discuss their arrangements, investigators and a tape

recorder were concealed in an adjoining room.

Padilla asked if Valenzvela had the money. Valen-

zuela replied that he did and displaved a roll of bills

which ‘twas supposed to be $4,000, but it wasn't... . 1

had hundred dollar bills on the outside, with $1.00 bills

on the inside.”’

The tape recording of their conversation inelides

the following: Padilla said that the Las Vevas reser-

vation for Valenzuela had been made for the next day:

that “Bill was *treal liked around Las Vegas** and

“good in cards and dice; that the game was “already

fixed.” Valenzuela asked. [Wo ]hat guarantee have T

got ?°° Padilla replied that Bill would **mavbe put

up $1500 himself.” Later during the conversation Vad-

enzvela again asked about a euarantee and Padilla

rephed. You're going to play the hand: vou're going

8

to win the money you put on it’’ Valenzuela asked,

“What is Bill’s last name? Where can I get ahold of

him ?’’ Padilla did not answer the first question but

said, ‘*He hangs around the E) Rancho all the time."

Padilla later said that *‘Bill’* would meet Valenzuela

when he arrived in Las Vegas and introduce the dealer

who would *‘explain you the whole thing.”’

When Padilla indicated his intention of leaving

Valenzuela’s residence, the investigators came from the

next room and announced that he was under arrest.

One of the investigators asked Padilla, ‘‘ What's the

situation‘in this matter and how did you get mixed up

in it?’’ Padilla “*hung his head for a moment, didn't

answer,’ then, questioned again, he said, ‘tI don't know

how I got mixed up in it. I'm ashamed of it."" The in-

vestigator said, “It’s pretty obvious that this situation

is a similar one to the John Lane case."? Padilla re-

plied, “IT didn't get one dime of the money."'

Police officers found defendant Anderson driving

Padilla’s car in the vicinity of Valenzuela‘s residence,

Valenzuela said to Anderson, ** Where m the hell is

your mustache ?’’) Anderson said, “Who are vou? |

don’t even know you.”’ Valenzuela replied, “The hell

you don't... . [¥]ou're wearing the same shirt vou

had on last night.” To this Anderson made no reply.

Defense Evidence. Defendants took the stand. eon-

tradieted much of the prosecution evidence, and gave

asserted|y innocent explanations as to some of their

9

conduct. Their would-be exculpatory testimony was

net beheved by the jury and need not be recounted.

Sufficiency of the Evidence to Show Attempted

(irand Theft in California. The case of People v. Buf-

fum (1953), 40 Cal. 2d 709, 716 [5, 6], holds that under

Penal Code, section 27 (subd. 1)? and section 778a,° a

erime committed in part in California can be punished

here only if the acts committed in California amount

to a criminal attempt, “‘a ‘direct’ ineffectual act. to-

wards consummation of the crime,’ amounting to more

than mere preparation.

The ‘direct’? acts necessary to constitute an at-

tempt to obtain-property by false pretenses can be

simply the making of misrepresentations calculated to

induce the victim to part with his property. (People v.

Camodeca (1959), 52 Cal. 2d 142, 145 [1-5a].) Here the

offense undertaken by defendants in Califomia (and

as to count 1, consummated in Nevada) was not the ob-

taining of property by false pretenses (where the vie-

tim intends to part with title to his property) but rath-

er lareeny by fraud, trick or device (where the vietim

intends to part with possession only). (People vo Nor

Woods (1951), supra, 37 Cal. 2d S84, 586 [4]. People

2Penal Code. section 27: “The following persons are liable to punishment

under the laws of this state:

“1. All persons who commit. in whole or in part. any crime within

this state. . .

Penal Gode. section 77845 “Whenever a person with intent to commit a

crime dees any act within this state an execution of part execution of such

intent. whieh culminates in the commusston of a crime. enther within on without

this state such person is punishable for such crime in this state in the same

inanner as if the same had been committed entirely within this state ~

10

vu. Delbos (1905), 146 Cal. 734, 736.) The making of

nusrepresentations with the requisite specific intent

on the part of defendants, however, can constitute an

attempt to commit the type of theft here involved as

well as the type shown in Camodeca.

Here, as to count 1, the trier of fact could and pre-

sumably did determine that defendants in California,

with the specific intent to consummate theft in Las Vev-

as, did everything necessary to get their victim and his

money to Las Vegas so that defendant Anderson could

get his hands on the money by making the final mis-

representation that he was going to buy chips with it.

As to count 2, the trier of fact could and presumably

did find that defendants similarly did everything nec-

essary to get their victim and his money to Las Vegas

for a like larecenous purpose. The latter scheme, how-

ever, failed because of the victim's lack of perduring

credulity and ensuing complaint to the district attorney.

In our opinion the fact that the scheme in each case

required a final step of fraud, trickery or device out-

side Cuiifornia to complete the continuingly planned re-

duction of the victim's money to the thief’s actual pos-

session did not make the essential acts (misrepresenta-

tions) of defendants in California any the less ** direct”

acts towards consummation of the projected theft.

As to offenses commenced in California and con-

summated without the state we recognize that ‘the

Legislature is not ordinanly concered with regulating

11

conduct in other jurisdictions. * (People v. Burt (1955),

45 Cal. 2d 311, 314 [1]; People v. Buffum (1953), supra,

40 Cal. 2d 709, 716 [1].) But California has a legiti-

mate interest In applying its penal sanctions to those

who by misrepresentations in this state lure persons

and their property from this state to another jurisdic-

tion for the purpose of there appropriating the prop-

erty. We approve and follow the holding of the Dis-

trict Court of Appeal in People v. Chapman (1921),

oo Cal. App. 192, 197, that “the legislature, in subdivi-

sion | of section 27 [ante, footnote 2], has declared, in

effect, that all persons who make in this state any false

or fraudulent representations whereby money or prop-

erty is obtained without the state are punishable just

as though all the acts;had taken place in this state.”

For the reasons above stated the Judgments are af-

firmed.

SCHAUER, ./.

We Concur:

GIBSON, CJ.

TRAYNOR, J.

McCOMB, J.

PETERS, J.

WHITE, J.

DOOLING, J.