THE PEOPLE, Respondent, v. JAMES TARANTINO, Appellant, 45 Cal. 2d 590

THE COURT.- — Defendants Tarantino and Eichenbaum were indicted on one count of conspiracy to commit extortion (Pen. Code, § 182) and three counts of extortion (Pen. Code, § 518). Defendant Tarantino alone appeals from a judgment of conviction entered on a jury verdict of guilty on all four counts and from an order denying his motion for a new trial. Tarantino (herein sometimes called defendant) published a weekly magazine and made weekly radio broadcasts.

Nine witnesses testified that they had been “blasted” or threatened with “blasting” by defendant, but that he stopped his attacks and threats after they paid money to Bichenbaum, sponsored advertisements in defendant’s magazine, and, in one case, agreed to sell the magazine to the public. Much of the evidence against defendant consisted of recordings of conversations in his hotel room introduced over objection that they had been obtained in violation of the provisions of the United States Constitution and the California Constitution against unreasonable searches and seizures.

An inspector in the San Francisco Police Department testified that at the suggestion of the district attorney and the chief of inspectors he employed a sound engineer and had a locksmith make a key to defendant’s hotel room. In December, 1951, the engineer, acting under the direction of the inspector and using the key that the locksmith made, entered defendant’s room and installed a microphone behind a small hole in the ceiling. Wires from the microphone were strung up the airshaft, across adjacent roofs, and into an apartment that the police and district attorney had rented in a nearby building.

The inspector and the engineer testified that they acted without defendant’s knowledge or permission. From December, 1951, until February, 1953, the police listened to every sound that was made in defendant’s room. They did not consider all of the conversations they overheard relevant to the investigation, but recorded only those they considered “pertinent” and “interesting.” The recordings, totalling 198 reels of tape or approximately 500 hours of listening time, were edited by the district attorney and the police, arranged according to subject matter, and rerecorded in part on composite tapes.

The district attorney introduced 60 selected excerpts in evidence, and since they related to threats, promises, and demands for money, they constituted corroborative evidence of the testimony of the prosecution’s witnesses. Defendant contends that this evidence was obtained by unconstitutional means (Irvine v. California (1954), 347 U.S. 128, 132 [74 S.Ct. 381, 98 L.Ed. 561]; Wolf v. Colorado (1949), 338 U.S. 25, 27 [69 S.Ct. 1359, 93 L.Ed. 1782]) and should therefore have been excluded (People v. Cahan (1955), 44 Cal.2d 434, 444 [282 P.2d 905] ; People v. Berger (1955), 44 Cal.2d 459, 462 [282 P.2d 509]).

The district attorney contends, however, that

section 653h of the Penal Code permits the police to install and use a dictograph as was done in this case and that unless the

section is unconstitutional the recordings were not obtained in violation of the Constitutions.

Section 653h provides that “Any person who, without the consent of the . . . occupant, installs or attempts to install or use a dictograph in any house, room, [or] apartment ... is guilty of a misdemeanor; provided, that nothing herein shall prevent the use and installation of dictographs by a regular salaried peace officer expressly authorized thereto by the head of his office or department or by a district attorney, when such use and installation are necessary in the performance of their duties in detecting crime and in the apprehension of criminals. ’ ’ It was pointed out in People v. Cahan, supra, that this

section “does not and could not authorize violations of the Constitution” and that the proviso under which the officers in that case and this case “purported to act at most prevents their conduct from constituting a violation of that

section itself.” (44 Cal.2d at 437.) Since the statute does not purport to authorize any installations whatever, to interpret the proviso as authorizing conduct that the Constitution prohibits would not only render it subject to attack on that ground (Irvine v. California (1954), supra, 347 U.S. 128, 132), but read into it words that are not there. Moreover, installations by police officers that violate the constitutional provisions cannot be made lawful by the authorization of the head of the police department or the district attorney.

Those provisions protect the people from unreasonable invasions of their privacy by the police, and the determination of what is reasonable cannot be left to them. “Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law.

The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.” (McDonald v. United States (1948), 335 U.S. 451, 455 [69 S.Ct. 191, 93 L.Ed. 153] ; see also United States v. Jeffers (1951), 342 U.S. 48, 51 [72 S.Ct. 93, 96 L.Ed. 59] ; Johnson v. United States (1948), 333 U.S. 10, 14 [68 S.Ct. 367, 92 L.Ed. 436] ; United States v. Lefkowitz (1932), 285 U.S. 452, 464 [52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775]; Drayton v.

United States (1953), 205 F.2d 35, 37.) It is true that the secret entry of defendant’s room and the hiding of the microphone were done by the engineer, a private person, and that a lawless search and seizure by a private person acting in a private capacity is not a violation by a state or federal agency of constitutional guaranties. (Burdeau v. McDowell (1921), 256 U.S. 465, 475 [41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159].) The engineer, however, was employed by the district attorney and the police department He worked under the direct supervision of an inspector of police, and was paid with public funds.

Accordingly, his installation of the microphone as an agent of public officials and the clandestine eavesdropping by the police violated the constitutional provisions. (Irvine v. California (1954), supra, 347 U.S. 128, 132; Wolf v. Colorado (1949), supra, 338 U.S. 25, 27.) Evidence so obtained must be excluded. (People v. Cahan (1955), supra, 44 Cal.2d 434, 444; People v. Berger (1955), supra, 44 Cal.2d 459, 462.) The People contend, however, that the admission of the evidence did not result in a miscarriage of justice and that the judgment must therefore be affirmed. (Cal. Const., art.

VI, § 4%.) In support of this contention it is urged that the verdicts were supported by the testimony of 21 witnesses, that several of these witnesses testified that defendant committed acts of extortion similar to those with which he was charged, and that one of the acts of extortion for which he was indicted, that charged in Count 2, occurred before the microphone was hidden in his room.

As to Count 2 it appears to us that the evidence, entirely independent of that illegally obtained, convincingly, if not overwhelmingly, establishes guilt, and, for the reasons hereinafter more particularly stated, we conclude that the verdict on this count should not be disturbed. As to Counts 1 (conspiracy of defendants Tarantino and Eichenbaum to commit extortion), 3 (extortion from Rourke), and 4 (extortion from Armstrong), the illegally obtained recordings contain evidence immediately and directly tending to prove the charged offenses.

The 60 excerpts of illegally obtained recordings were played repeatedly to the court and jury. They contained the names of the complaining witnesses and defendant’s recorded remarks connected these names, insofar as Counts 1, 3 and 4 are concerned, with threats and demands for money. Since the recordings clearly constituted a substantial and important part of the evidence pertinent to the last mentioned counts, it cannot be said that the verdicts as to those counts rested on evidence independent of them. (See Stevens v.

Snow (1923), 191 Cal. 58, 67 [214 P. 968].) Accordingly their admission in evidence deprived the defendant of a fair trial and resulted in a miscarriage of justice which necessitates a new trial as to such counts. The circumstances of the commission of the offense against Paul Ylasoff, Count 2, as related in his testimony, are as follows: He had known Tarantino and Eichenbaum since 1950. In 1950 Eichenbaum came into the Club Continental, a bar operated by Ylasoff, and “told” Ylasoff to put an advertisement in Tarantino’s magazine, Hollywood Life.

Ylasoff said that he did not care to advertise his bar in Tarantino’s magazine. Eichenbaum said, “You don’t have to do that, just put a blood bank ad in there.” Ylasoff agreed to place the advertisement and paid $25. In 1951 Ylasoff operated both the Club Continental and a card room. Eichenbaum came into the card room in July or August, 1951, and said that Tarantino was “awfully mad” at Ylasoff and was going to “blast” him on his radio program the next day. At Ylasoff’s request Eichenbaum placed a telephone call to Tarantino and Ylasoff talked with him.

Tarantino told Ylasoff that Ylasoff was “getting away with murder, booking horses, and a crap game,” and that Tarantino was going to “blast” him. Ylasoff said, “What can I do to make up? ... I don’t want you to blast me on the air tomorrow, otherwise I’ll have to close up the place.” Tarantino replied that Ylasoff should talk with Eichenbaum. Eichenbaum talked further with Tarantino on the telephone, then told Ylasoff that Tarantino would “forget the incident” for $500. Ylasoff protested against the amount. After further negotiations they agreed upon a figure of $200.

Also Eichenbaum told Ylasoff, “you will have to put an ad in there to keep him quiet.” Ylasoff agreed to this. He paid the $200 and was billed for but did not pay for an advertisement in Hollywood Life. As stated, the offense charged in Count 2 occurred, according to the testimony of Ylasoff, in July or August, 1951. The listening and recording device by which evidence was illegally obtained was not installed until December, 1951. There is no mention in the evidence obtained by the device of the alleged offense against Ylasoff.

There is brief mention by Tarantino in one of his recorded conversations of “Paul” and “the Continental” but it is not in connection with any extortion. Independently of the recordings, the effect of Vlasoff’s testimony describing the commission of the offense against him is impressively strengthened by the testimony of other witnesses, the victims of Counts 3 and 4 and the victims of extortions not charged against the defendants, showing the pattern of defendant’s criminal operations.

This admissible evidence of other offenses is of such probative, corroborative effect that the record as a whole, notwithstanding its further content of illegally obtained evidence, falls short of leading us to the opinion that as to this count of the indictment (Count 2), defendant’s conviction can be said to constitute a miscarriage of justice. (Cal. Const., art. VI, § 4%.) In this connection it is to be noted that the jury were instructed that “Bach count set forth in the Indictment charges a separate and distinct offense.

You must consider the evidence applicable to each alleged offense as though it were the only accusation before you for consideration, and you must state your finding as to each count in a separate verdict, uninfluenced by the mere fact that your verdict as to any other count or counts is in favor of, or against, the defendants.

They may be convicted or acquitted upon any or all of the offenses charged, depending upon the evidence and the weight you give to it, under the Court’s instructions.” It is to be presumed that the jury obeyed this instruction and was not influenced to return a guilty verdict as to Count 2 upon evidence other than that pertinent to this count. (People v. Dabb (1948), 32 Cal.2d 491, 499 [197 P.2d 1] [it must be assumed that the jury followed instructions that evidence as to offenses of codefendants which was not connected with defendant could not be considered against him] ; People v.

Lamendola (1953), 119 Cal.App.2d 570, 572 [259 P.2d 982] [it must be presumed that the jury followed instructions that they were to consider certain evidence solely for the purpose of impeachment] ; People v. Grimes (1952), 113 Cal.App.2d 365, 371 [248 P.2d 130] [“It will be presumed that the jurors were true to their oaths and followed the various admonitions and instructions of the court,” particularly with reference to evidence of prior similar offenses] ; People v.

Martinez (1937), 19 Cal.App.2d 599, 604 [66 P.2d 161] [it may be assumed that the jury followed the instruction that the extrajudicial statement of each defendant could be considered only as to him and not as to his codefendants] ; People v. Griffin (1935), 9 Cal.App.2d 246, 249 [49 P.2d 321] [it must be assumed that jury heeded the instruction that evidence applicable to one defendant can be considered only as against that defendant].) In addition to the claim that the recordings were inadmissible because they were illegally obtained, defendant presents other contentions.

He urges that he was denied a reasonable opportunity to hear and decipher the illegally obtained recordings before or after excerpts therefrom were received in evidence.. The record shows that defense counsel were offered and did not avail themselves of opportunities to hear the recordings. Defendant urges, further, that the court should have granted his requests for copies of transcriptions, prepared by the prosecution, of those portions of the recordings which were not introduced in evidence.

Defendant, whose conversations were the subject of the recordings and transcriptions, does not suggest what useful purpose would have been served by his counsel’s hearing the recordings or reading the transcriptions; he does not suggest that they contained anything relevant to this case. Defendant complains of the admission of evidence, some properly and some illegally obtained, which tends to show extortions and attempted extortions other than those charged.

Such evidence is relevant to the Vlasoff extortion for it tends to show criminal methods and purposes similar to those shown by the testimony of Vlasoff. (See People v. Costa (1953), 40 Cal.2d 160, 167 [252 P.2d 1], and eases there cited.) Accordingly, such of it as was legally obtained was properly admitted; the portions of it which were unlawfully obtained were merely cumulative of the proof, which as hereinabove discussed, satisfactorily establishes guilt on Count 2 independently of the evidence improperly admitted.

Defendant complains of the admission in evidence of approximately 200 issues of his magazine, Hollywood Life, which were found in his room at the time of his arrest. These magazines are clearly relevant and in themselves constitute overwhelming proof of certain of the elements in the ease against defendant.

He argues, however, that prejudice from the admission of this evidence appears from the facts that the magazines contained not only relevant material but also material not relevant to the crimes charged and that the jury asked for and were allowed to have the magazines in the jury room during their deliberations. ' Defendant’s original objection to the introduction of this evidence was on the sole ground that the prosecution had not shown that defendant edited or wrote the material in Hollywood Life. The prosecution had shown, however, that defendant was its publisher.

Thereafter, defendant asked that the magazines be excluded from evidence and suggested that only such portions as were pertinent should be received in evidence. The magazines as a whole, and not merely selected portions thereof, were relevant since, as shown by other evidence, they were an instrumentality by which defendant carried out his threats to “blast” his victims and the victims, as Vlasoff testified, were “told” to advertise in the magazine. Tarantino on direct examination testified in effect that he did not commit the extortions charged.

The prosecution, over objection, cross-examined him as to other, similar offenses to which he had not referred in his testimony in chief. He contends that his cross-examination improperly went beyond “matters about which he was examined in chief” (Pen. Code, § 1323). The contention is without merit. Since Tarantino’s testimony on direct examination amounted to a general denial of the truth of the charges against him, “the permissible scope of cross-examination is very wide.” (People v.

Zerrillo (1950), 36 Cal.2d 222, 228 [223 P.2d 223].) The cross-examination here was directed primarily to matters implicit in Tarantino’s general denial, i.e., his purpose and motive, his general plan and scheme. Defendant urges that the following circumstances show that the verdicts were coerced: The jury retired to deliberate on the morning of December 18 and the verdicts were returned on the evening of December 22.

At 4 p. m. on December 19 the jury came into court after they had sent the judge a note signed by the foreman which stated, “We cannot agree on any count.” The foreman told the judge that the division of the jury was nine to three. (At no time was it disclosed how many votes were for acquittal and how many for conviction.) At 10 :40 a. m. on December 21 the foreman gave the judge a note which stated that the jury “stand 11 to 1, and no chance of a change”; another juror had written, “Any further argument is very likely to result in bodily harm to one or more jurors. ’ ’ The judge instructed the jury at some length to consider the case dispassionately, and said, “I might just say, and this is not a threat, that if any juror inflicts any bodily harm on any other juror, I certainly would take care of that situation and deal with it in a manner that would make the offender very sorry that the incident occurred, if it does occur.

Now, that is not a threat; that is just a rather blunt statement, but I beg all of you to put aside any ill feeling that you might have, if you have any. . . . You are not partisans or advocates but judges. Now, if— don’t let any feeling of pride or feeling of personal hurt or animosity prevent you from discussing this case with calmness and with equanimity.” On December 22 the judge received three notes. One, written by the foreman on the night of December 21, stated, “deliberation is proceeding in a friendly atmosphere.

We are determined to continue in this manner whether we eventually reach a verdict or not.” A note from a juror, marked 3:35 p. m., December 22, stated, “The opposed juror states he is withholding information from us until tomorrow morning. He states he is protecting three interests, the State, the defense and the jury.” And another note from the foreman, also marked 3:35 p. m., December 22, stated, “We are not deliberating now and have not been deliberating during many long periods of time previous to this. ...

It is the opinion of everyone that we cannot do any more.” At 4:30 p. m. the judge called the jury into the courtroom and said, “Now, it is your duty, under your oaths as jurors, to deliberate, and to refuse to discuss the case further is a violation of your oaths as jurors. I know that you have been very patient and have been here a long time, and maybe tempers wear thin, but it is your duty to deliberate until the court excuses you.” The judge pointed out that the jury need not be in agreement as to all counts and asked them to deliberate “somewhat further.” At 8:45 p. m. they returned with the verdicts.

There was nothing in the statements of the trial judge, representative portions of which are quoted above, which suggested an opinion as to what verdicts should be reached, nor was there any improper pressure upon the jury to agree. (Cf. People v. Walker (1949), 93 Cal.App.2d 818, 821-825 [209 P.2d 834], and cases there cited and summarized; People v. Crowley (1950), 101 Cal.App.2d 71, 75-78 [224 P.2d 748].) It does not appear that the judge required the jury to prolong their deliberations unduly, particularly in view of the fact that the trial had consumed 44 days.

The judge dealt properly with the suggested “bodily harm to one or more jurors.” We conclude that the record does not support defendant’s claim that the verdicts were coerced. Other arguments of defendant do not relate to matters which could have had a prejudicial effect as to the conviction upon Count 2 and need not be specifically discussed. The judgment and order on Count 2 are affirmed; on Counts 1, 3 and 4 the judgment and order are reversed and the cause is remanded for a new trial.