People v. Richard (114 Cal. App. 3d 824, 1981)

Opinion

JEFFERSON (Bernard), J.

By indictment, defendants Dean Pic’l, an attorney, and Randall James Martin were charged with committing a number of felony offenses. In count I, defendants were charged with conspiracy, a felony, in violation of Penal Code section 182. It was alleged that defendants conspired to commit the crime of extortion, in violation of Penal Code section 520, the crime of bribing a witness, in violation of Penal Code section 136 1/2, the crime of attempting to induce a witness to withhold true testimony, in violation of Penal Code section 137, the crime of compounding a felony, in violation of Penal Code section 153, the crime of receiving, concealing, selling, and withholding stolen property, in violation of Penal Code section 496, and the crime of obstructing justice, in violation of Penal Code section 182, subdivision 5. Twenty-two overt acts were alleged as part of the conspiracy. The dates of the conspiracy were set forth as July 30, 1978, to August 8, 1978.

In count II, defendants were charged with committing the offense of extortion on August 7, 1978, in violation of Penal Code section 520. In count III, defendants were charged with committing the offense of bribing a witness not to attend trial, in violation of section 136 1/2 of the Penal Code. The date of this offense was alleged to be August 7, 1978. In count IV, defendants were charged with committing the offense of attempting to induce a witness to withhold true testimony, in violation of Penal Code section 137—the date of this offense alleged to be August 7, 1978. In count V, it was alleged that defendants had committed, on August 7, 1978, the offense of compounding a felony, a violation of Penal Code section 153. In count VI, defendants were charged with the offense of receiving stolen property, in violation of Penal Code section 496, the date of this offense being August 7, 1978. In count VII, defendant Martin alone was charged with committing, on August 3, 1978, the offense of receiving stolen property, a violation of Penal Code section 496.

In counts I, II and VI, it was alleged that a principal in each offense charged was armed with a firearm within the meaning of section 12022, subdivision (a), of the Penal Code.

The motion of each defendant for a postindictment preliminary hearing was denied. Their motions to set aside the indictment, made pursuant to Penal Code section 995, were granted as to counts III, IV and V—but denied as to counts I, II, VI and VII. Defendants also made motions for polygraph examinations of witnesses and to strike the allegations in count I relating to objects of the conspiracy. These motions were denied. Defendants made motions to be informed of any formal grant of immunity to witnesses for the prosection. These motions were granted. Martin’s separate motion to suppress evidence was denied.

As the result of a jury trial, defendants Pic’l and Martin were found guilty as charged in counts I (conspiracy), II (extortion), and VI (receiving stolen property). Defendant Martin was found guilty as charged in count VII (receiving stolen property). The jury found that each defendant was armed with a firearm within the meaning of Penal Code section 12022, subdivision (a), as alleged in counts I, II, and VI. Defendants’ motion for a new trial were denied. Defendant Martin was granted probation on certain conditions. Defendant Pic’l was sentenced to state prison for six years on count I, three years on count II, and two years on count VI. The sentences on counts II and VI were made to run concurrently with one another and consecutive to the sentence imposed on count I. The sentences on counts II and VI were stayed, with the stay to beome permanent upon service of the sentence on count I, and the findings that Pic’l was armed were stayed. Credit was granted to each defendant for presentence custody. Each defendant has appealed from the judgment of conviction.

I

The Factual Summary

In July 1978, Mr. Kerhulas owned a specially built drag-racing car— generally referred to as a “dragster”—and a trailer upon which to transport it. On the evening of July 28, 1978, he participated in races at Orange County International Raceway. About 11 p.m., he put the dragster on the trailer and used his truck to tow the trailer to the apartment of friends, Kenny and Pat Green, who lived in Tustin. He parked the truck and trailer in the street, and stayed overnight in the Tustin apartment.

When he went outside about 9 a.m. the following morning, the truck and trailer with the dragster thereon were gone, including a racing car differential and other automobile accessories that were in the truck. He reported the missing property to an officer in the Orange County Sheriff Department. The approximate value of the stolen property was $120,000. Kerhulas placed an ad in the National Dragster Magazine, offering a reward of $2,000 for information leading to the return of the property. He also informed “racing people” that his property had been stolen. The property was not insured. Kerhulas wanted to get his property back as soon as possible because, among other things, he earned a significant portion of his income from drag racing.

On August 3, 1978, defendant Martin, assisted by two friends, Lara and Selevich, transported the stolen differential, one of the accessory items on the truck, to Blair’s Speed Shop in Pasadena, a shop which is engaged in selling new and used parts and equipment for racing cars. Martin offered to sell the stolen differential to Mr. Lukens, owner of the shop, for $150. Lukens noticed that the differential was specially constructed for a racing dragster, and that it was worth about $1,000. By reason of the cheap price offered, Lukens concluded that the differential might be stolen. By pure coincidence, Pat Green, with whom Kerhulas was staying in Tustin when the dragster was stolen, was employed at Lukens’ Blair’s Speed Shop. Lukens told her that the differential offered for sale by Martin might be the stolen differential belonging to Kerhulas. Pat Green then telephoned the police and Kerhulas.

Officers came to the Lukens shop immediately and arrested Martin and his companions, Lara and Selevich. Kerhulas came to the Lukens shop and identified the differential as part of the stolen property. Later that day, Kerhulas and friends went to Martin’s house. Kerhulas told Martin, who had been released on bail through the efforts of defendant Pic’l, that he would give Martin $3,000 if the dragster and his other stolen property were returned to him. Kerhulas did not tell Martin that criminal charges would not be pressed against Martin if the stolen property were returned. Martin told Kerhulas that he did not have the dragster, but would find out about it, and then get back to Kerhulas later.

Soon thereafter, Martin telephoned Kerhulas and suggested that they meet at a restaurant to discuss how much Kerhulas would pay to get his property back. They met in the restaurant; Martin directed Kerhulas to a restroom, where Martin patted down Kerhulas to determine whether Kerhulas had a bugging device upon his person. Martin told Kerhulas that the dragster had been cut in half, and that he would be in contact with Kerhulas.

Later, a man, who did not identify himself, telephoned Kerhulas at the Green apartment and said that he had talked with Martin; that they were arranging to get Kerhulas’ property back, and he would soon contact Kerhulas as to the details.

On August 6, 1978, the same man telephoned Kerhulas again and said that he was part of a group who stole cars and trucks, tore them down, and relicensed them; that the Kerhulas deal had gotten into the wrong hands, but that they were going to get Kerhulas’ dragster and other property back in exchange for payment of $3,000 by Kerhulas. This unidentified man also told Kerhulas that Martin was part of the group; but that Martin was in the lower part of the group while he was higher up in the group; he explained that Martin made a big mistake; that he, the caller, wanted to do Martin a favor and get him out of a jam. This telephone caller further told Kerhulas that Kerhulas would never have gotten his property back if Martin had not “screwed up.” The telephone caller then described a plan for the return to Kerhulas of his stolen property.

Later that day, the unidentified man telephoned Kerhulas again and advised him that Kerhulas was to meet Martin; that Martin would show Kerhulas half of the property and Kerhulas was to give Martin $3,000; that thereafter Kerhulas would get his stolen property back. Kerhulas was also told that he would have to sign a release not to prosecute Martin; that the telephone caller would contact his attorney to see how the matter would be handled; again this telephone caller said he would get back to Kerhulas. The unidentified telephone caller telephoned Kerhulas again the next day, August 7, gave some further details, but indicated that Kerhulas would have to receive another telephone call later that day at which time the final deal would be made for return of the stolen property to Kerhulas.

After receiving this last call, Kerhulas contacted the deputy sheriffs, and they came to the apartment where Kerhulas was staying and attached a recorder to the telephone. About 6 p.m., Kerhulas received a telephone call from a man who identified himself as defendant .Pic’l. Pic’l said that a client had asked him to handle the matter; that Pic’l had arranged to have Kerhulas’ property left at the house of Pic’I’s friend, Steiner; and that he, Pic’l, would prepare, for signature by Kerhulas, a document setting forth that Kerhulas would agree not to prosecute Martin.

That evening, Kerhulas received three more telephone calls, each of which was recorded, from the man who identified himself as Pic’l. In the last call, at about 11 p.m., Pic’l told Kerhulas to meet him at a restaurant in Pomona and bring $2,500 with him, and be prepared to sign an agreement not to prosecute Martin.

Kerhulas arrived at the restaurant about 11:30 p.m. A radio transmitter was attached to one of Kerhulas’ legs. Kerhulas met defendant Pic’l at the restaurant and gave Pic’l an envelope which contained $2,500. Pic’l gave Kerhulas a nonprosecution agreement to sign. Pic’l stated that he had prepared the agreement himself; that the people he represented were “flaky” in getting into something they did not know how to handle by “ripping off” Kerhulas’ property. Pic’l also remarked to Kerhulas: “It’s not everyday a guy can take a dragster and dispose of it.” As requested by Pic’l, Kerhulas signed the agreement not to prosecute, and gave it and $2,500 to Pic’l. Kerhulas testified that he gave the money to Pic’l in order to get his stolen property back as soon as he could; that he was afraid he would never get his property back if he refused to pay Pic’l and refused to sign the agreement not to prosecute. Kerhulas stated that he did not feel that he was paying the reward he advertised in the magazine and that he felt that he had to sign the non-prosecution agreement in order to get his property back.

After he signed the agreement and gave the money to Pic’l, Pic’l commented that he, Kerhulas, was a respectable citizen. The two left the restaurant together, at which time Pic’l said that he had Kerhulas’ gun which had been stolen along with the dragster and other property. Pic’l gave Kerhulas a paper upon which was written the address of Steiner’s house, 3526 Holt Avenue, West Covina. Pic’l told Kerhulas that he could now go to Steiner’s house and pick up his property.

Kerhulas, who was in contact with surveilling officers by the radio transmitter attached to his leg, drove to the Steiner address and recovered about $70,000 worth of the stolen property. Previously, Kerhulas had received back the truck and trailer, worth about $50,000.

In the meantime, a surveilling officer, West, saw Pic’l arrive at the rendevous restaurant in a Lincoln Continental, and subsequently leave the restaurant with Kerhulas. He saw Pic’l and Kerhulas talking. Then Kerhulas got into his car, and Pic’l got into the Continental. Officer West followed both cars to the vicinity of the Steiner home at 3526 Holt Avenue. Officer West and other officers caused Pic’l’s car to stop in order to arrest him. When Pic’l got out of his car, he said: “It’s under the front seat.” Officer West looked into the car and saw a revolver in a holster on the floorboard under the driver’s seat. An officer retrieved the revolver and determined that it was loaded with five cartridges. An officer asked Pic’l where the letter was that the victim signed; Pic’l then gave the officer the agreement not to prosecute signed by Kerhulas. When booked, an envelope containing $2,500 was removed from Pic’l’s trousers.

In a taped interview made soon after his arrest, Pic’l told Officer West that he, Pic’l, would not have returned Kerhulas’ stolen property if Kerhulas had refused to pay the $2,500 and had refused to sign the agreement not to prosecute. At no point in that taped interview did Pic’l claim that the $2,500 paid by Kerhulas to him was a reward. Pic’l also admitted having had telephone conversations with Kerhulas with respect to arrangements for the return of the stolen property to Kerhulas.

Kerhulas testified at trial that in all of his conversations with defendants Pic’l, Martin, and the anonymous telephone caller, neither he nor any of those persons used the word, reward, for return of his property. Kerhulas stated that the $2,000 reward he offered in the magazine was a reward for return of his property intact; that the terms of his offer of reward were never met because his property was not returned intact; rather, the dragster had been cut in half, and it cost him $2,862 to have it repaired; also Kerhulas testified that he never recovered $6,000 worth of the stolen property.

Steiner testified at trial that on August 7, 1978, about 7 p.m., Pic’l came to his house and asked whether he, Pic’l, could store some things there which were going to be returned to the owner thereof in a few hours. Pic’l said the things were stolen, and offered to pay Steiner for use of Steiner’s property. Steiner agreed to let Pic’l use his property for this temporary storage. About 7:30 p.m., Pic’l returned to Steiner’s house in a Lincoln Continental, together with two men in a truck and a trailer with a dragster on it. The two men unloaded the dragster and auto parts while Pic’l talked with them. Steiner admitted in his testimony that, after Pic’l was arrested, he, Steiner, lied to the officers in telling them that the property was not stolen. He did this in order “to save my skin and Mr. Pic’l’s.”

Yvonne Stephens testified that on the evening of July 30 or 31, 1978, Gary Oxenham and defendant Martin came to her house in a camper truck. Oxenham told her, in Martin’s presence, that they had finally done “the big one”—that he and Martin had gone to Tustin looking for a trailer and, by accident, had found a trailer with a “heck of a bigger package with it”—a gigantic racing car worth about $100,000; that he and Martin stole the truck, trailer, and racing car; that he did not know what to do with the racing car, but he could use the truck and trailer. Martin suggested cutting up the racing car or making it disappear. Oxenham said that he did not want to waste the racing car, and he would try to get some money for it. Oxenham and Martin stored the truck in her garage that evening and the next day unloaded things from it and put them also in her garage.

Ms. Stephens also testified that, on August 3, 1978, she overheard several telephone calls which Oxenham made from her house. Before he made the first call, he told her that he was calling defendant Pic’l. He made the call and asked for Pic’l. He told Pic’l that he, Oxenham, had gotten a racer; that his friend, Martin, had been busted trying to get rid of an engine or something; and Oxenham wanted Pic’l to get Martin out of jail. Later that day, Martin came to her house. Then Oxenham told Ms. Stephens that he was going to call Kerhulas, whose phone number he had obtained from credit cards and identification in the dragster. Oxenham, in the presence of Martin, then telephoned Kerhulas. During that conversation, Oxenham became angry, stating that he did not want the racing car and would “flame it,” cut it up, and deliver it to Kerhulas in a small basket. After that telephone conversation, Oxenham told her that a deal was set up, that Kerhulas was all for handling it without the cops involved, but that he, Oxenham, could not do anything about the deal until he talked with Pic’l.

In another telephone call by Oxenham from her home that day, Ms. Stephens heard Oxenham tell Kerhulas that Oxenham wanted $3,500, but would settle for less than $3,000; that he did not think $3,000 was asking too much for a $180,000 racing car. Oxenham also told Kerhulas: “I have bosses just like you have got bosses,” and that he was going to leave it up to his attorney to handle it. After one of the telephone conversations, Oxenham told Ms. Stephens about the deal with Kerhulas, and said that he, Oxenham, did not need the racing car, but he wanted to keep the trailer; he did not want the police involved, and if he had his way he would just meet Kerhulas and get it over with; but he did not think Pic’l would go for it.

On August 7, 1978, Ms. Stephens heard another telephone call by Oxenham wherein he asked for Pic’l, and then told Pic’l that he could not see why he should keep a racing car for which he had no use, when he could sell it back to the owner for $3,000. He asked Pic’l to handle it for him, and asked: “Will it be conspiracy?” When Oxenham said that to Pic’l, he, Oxenham, looked at Ms. Stephens, and smiled. Oxenham told Pic’l that he wanted some money out of the deal because he went to all the trouble of stealing the dragster, and that he would not take less than $3,000. Soon thereafter, Ms. Stephens received a telephone call from Pic’l, who asked for Oxenham. Oxenham came to the phone, and she heard him ask Pic’l whether the deal was set to go. She also heard Oxenham say that he did not want “any screwups.” After that conversation, Oxenham told her that Pic’l was going to contact Kerhulas to work out the arrangements, and then Pic’l would call Oxenham.

Ms. Stephens testified that Oxenham and Martin made other telephone calls from her house on the day of August 7, 1978, attempting to find a truck to move the dragster. About 8 p.m. that evening, Oxenham left her house, stating to her that he had to “step on it” if he was going to have time to pick up a truck and trailer to move the dragster. Oxen-ham also told Martin to stay with Ms. Stephens. Later that evening, Pic’l’s secretary telephoned Ms. Stephens, attempting to find Pic’l. While Ms. Stephens and Martin remained in the house, Martin became upset and said that something was going to happen because too many people knew about “this damned thing.” About 4:30 a.m. on August 8, 1978, Oxenham came to the door. He appeared depressed, and said: “Pic’l got busted. Kerhulas screwed us.”

Ms. Stephens recalled another occasion in late July or early August 1978, wherein Oxenham telephoned Pic’l and said that he, Oxenham, had stolen the type of truck that Pic’l wanted, but that Pic’l would have to be patient because the truck broke down—that Pic’l would have to wait until he, Oxenham, had time to get another truck. Oxenham told Stephens that he was going to deliver the truck to Pic’l.

Ms. Stephens was not arrested; neither was she granted immunity from prosecution. On September 13 or 14, 1978, an officer searched her house with her consent. She voluntarily gave the officer her telephone records. She also voluntarily made a detailed tape-recorded statement to the officer regarding the activities of Oxenham, Martin and Pic’l. The tape-recorded statement was substantially similar to her testimony described previous herein.

II

Contentions on Appeal

On this appeal, defendants advance numerous contentions in an effort to secure a reversal of their judgments of conviction.

A. Defendant Martin’s Contentions

Defendant Martin argues that the trial court erred in the following particulars: (1) in denying his motion to strike count VII; (2) in denying his motion to suppress evidence; (3) in denying his motion to strike the allegations in count I with respect to objects of the conspiracy; (4) in receiving evidence of other crimes; (5) in receiving hearsay testimony of Oxenham as an adoptive admission; (6) in receiving evidence of alleged prior consistent statements of Ms. Stephens; (7) in receiving evidence of his (Martin’s) extrajudicial statement to officers; (8) in denying his motion for a “1538.5 hearing” as to admissibility of evidence of certain telephone calls; and (9) in refusing his requested instruction on “threats and menaces” (CALJIC No. 4.40).

In addition, Martin contends that the evidence does not support the finding of his guilt beyond a reasonable doubt, and that the deputy district attorney engaged in prejudicial misconduct in argument to the jury.

B. Defendant Pic’l’s Contentions

In substance Pic’l argues (1) that the trial court erred in not giving an instruction, sua sponte, that Oxenham was an accomplice as a matter of law and that his testimony required corroboration and could not be used to corroborate testimony of other accomplices; (2) that the trial court erred in not holding that the testimony of Stephens as to statements made by Oxenham implicating Pic’l, and testimony of Kerhulas as to statements attributed to the unidentified telephone caller, “ostensibly” Oxenham, constituted inadmissible hearsay, and denied Pic’l’s constitutional right to confrontation of witnesses; (3) that the trial court erred in not holding an evidentiary hearing, sua sponte, on newly discovered evidence in connection with Pic’l’s motion for a new trial; (4) that Pic’l was denied his constitutional right to effective assistance of trial counsel in that his trial counsel failed to block inadmissible hearsay evidence; failed to request an instruction that Oxenham was an accomplice as a matter of law; failed to invoke Pic’l’s right to confrontation of witnesses; and failed to seek an evidentiary hearing on the motion for a new trial; (5) that the trial court erred in not giving, sua sponte, an instruction, or, defense counsel was constitutionally ineffective in not requesting such instruction, with respect to Pic’l’s state of mind of an innocent intent in receiving the stolen property to return it to its rightful owner in the belief that the owner and Pic’l’s client had entered into an agreement for payment of a reward to the client; (6) that it was error for the deputy district attorney to wrongfully withhold from the defense information of telephone records of Ms. Stephens; (7) that the seizure of her telephone records without a search warrant constituted an illegal search, and that any evidence secured as a result of such seizure was inadmissible as fruit of the poisonous tree; (8) that the trial court erred in requiring Pic’l to divulge the name of his client— Oxenham—in violation of the lawyer-client privilege; (9) that the trial court erred in receiving, and his trial counsel was constitutionally ineffective in not objecting to, testimony of Ms. Stephens as to a “confession/admission” of Oxenham made, assertedly, after termination of the conspiracy by the arrests of Martin and Pic’l; (10) that the prosecution knowingly permitted false evidence to be presented by witness Stephens in that the prosecution knew that one Sprague was “planning to give wilfully false testimony” and Stephens was permitted to testify as to “some of this known false testimony”; (11) that the evidence does not support Pic’l’s conviction beyond a reasonable doubt; (12) that the trial court erred in permitting the prosecutor to inquire of Pic’l’s character witnesses whether their opinion of Pic’l’s reputation for honesty and veracity would be changed if they had known that Pic’l had filed a petition in bankruptcy; (13) that Pic’l’s defense of entrapment was valid as a matter of law; (14) that Pic’l could not properly be sentenced to a term of six years on count I—conspiracy—in that such sentence is excessive because it is more than the sentence applicable to the underlying substantive charge; (15) that the prosecutor wrongfully withheld from defense counsel evidence which the prosecutor knew he would use for character impeachment; and (16) that the trial court abused its discretion in not granting a new trial.

Ill

Martin’s Appeal

A. Any Error in the Trial Court’s Denial of the Motion to Strike Count VIH

In count VII of the indictment defendant Martin was accused of violating section 496 of the Penal Code on August 3, 1978. It was alleged that he had received, concealed, sold, and withheld stolen property, to wit, a Ford differential, for a drag-racing car. We take note of the fact that in count VI, this same defendant was accused of violating the same Penal Code section 496, but on a different date—August 7, 1978. The stolen property involved in count VI was also different. It was alleged to consist of a Walther 9 mm. pistol, a windscreen, a nose section, a camper-shell, a floor jack, 2 wheels and tires, a steering rod, a starter, a generator, 3 tool boxes, a parts bin, and other spare parts.

Martin argues that all of the acts alleged in counts VI and VII were obviously committed pursuant to a single criminal design, intent or plan to possess stolen property. Consequently, he should have been accused in one count only of violating Penal Code section 496 and that the Ford differential should have been a part of the property listed in count VI.

The evidence establishes that the offense charged in count VII was committed on August 3, 1978, when Martin was arrested while attempting to sell the stolen differential at Blair’s Speed Shop. The offense charged in count VI was predicated on the fact that, on August 7, 1978, defendant Pic’l and Oxenham—the latter a coconspirator of defendant Martin—attempted to sell the stolen property referred to in count VI to Kerhulas, the owner from whom the property had been stolen, for the sum of $2,500 and the execution of a nonprosecution agreement. Concealing of stolen property constitutes a continuing offense. (See Williams v. Superior Court (1978) 81 Cal.App.3d 330, 343 [146 Cal.Rptr. 311].) But the offense involving the Ford differential was completed and came to an end upon Martin’s arrest on August 3, 1978. The possession and concealing of the stolen property described in count VII continued until August 7, 1978, when Pic’l and Oxenham attempted to sell back to the victim Kerhulas the remaining stolen property for the sum of $2,500 and the execution of a nonprosecution agreement. Hence, the trial court did not err in denying the motion to strike count VII.

B. The Denial of Martin’s Motion to Suppress Evidence

Martin contends that it was error for the trial court to deny his motion to suppress evidence. This claim of error is based on the premise that there was no probable cause for his arrest at Blair’s Speed Shop. The evidence sought to be suppressed was the Ford differential and statements made by Martin following his arrest.

A motion to suppress evidence, made pursuant to Penal Code section 1538.5, involves a full-scale adversary hearing on the issues before the court sitting as a finder of fact. (People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal.Rptr. 13, 507 P.2d 621]; People v. Superior Court (Keithley) (1975) 13 Cal.3d 406, 410 [118 Cal.Rptr. 617, 530 P.2d 585].) In a suppression-of-evidence hearing, the power to judge credibility of witnesses, to resolve conflicts in testimony, to weigh the evidence and to draw factual inferences is vested in the trial court. On appeal, all factual conflicts must be resolved in support of the trial court’s disposition of the motion (People v. Martin (1973) 9 Cal.3d 687, 692 [108 Cal.Rptr. 809, 511 P.2d 1161]); and the trial court’s findings, whether express or implied, must be upheld if they are supported by substantial evidence. (Lawler, supra, 9 Cal.3d 156, 160; Keithley, supra, 13 Cal.3d 406, 410.)

Probable cause to make a warrantless arrest exists when a state of facts known to the arresting officer would lead a man of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person arrested is guilty of a felony offense. (Martin, supra, 9 Cal.3d 687, 692; People v. Harris (1975) 15 Cal.3d 384, 389 [124 Cal.Rptr. 536, 540 P.2d 632].) It is hornbook law that the test is not whether the evidence upon which the officer acts in making the arrest is sufficient to convict, but only whether the person arrested should stand trial. (People v. Ingle (1960) 53 Cal.2d 407, 413 [2 Cal.Rptr. 14, 348 P.2d 577]; see People v. Maltz (1971) 14 Cal.App.3d 381, 390 [92 Cal.Rptr. 216].)

At the hearing of defendant Martin’s suppression-of-evidence motion, evidence was introduced establishing that on August 3, 1978, Officer Prodonovich received a radio broadcast directing him to Blair’s Speed Shop in Pasadena to investigate three suspects who were attempting to sell stolen merchandise there. The broadcast included physical descriptions of the suspects and their automobile, a red Mustang. The officer arrived there about 2:15 p.m., saw Martin and two men near a red Mustang in the parking lot. Officer Prodonovich then spoke to Mr. Lukens, the owner of the shop.

Lukens told the officer that Martin and the two men had come to the shop and stated that they wanted to sell some spare parts; that Lukens accompanied them outside, looked into the trunk of the Mustang, and saw a differential that appeared to be especially built for a racing car. Lukens said that he was aware that three days previously, in Orange County, a dragster, its trailer, and spare parts had been stolen from a race driver while the driver was staying with Pat Green, an employee of Blair’s Speed Shop. Lukens said that the differential in the trunk appeared to him to be the same as the described stolen differential. Lukens informed Officer Prodonovich that Martin offered to sell the differential to Lukens for $150; that Lukens’ suspicions were aroused because the differential was worth more than $1,000; that Lukens went back into the shop and spoke with Pat Green, who said that the differential was one of the stolen items; that Lukens then told her to call the police.

After speaking with Lukens, Officer Prodonovich spoke with Pat Green. She told him that theft of the dragster had been reported to police in Orange County; she gave him the telephone number of the officer in Orange County who was investigating the theft. Officer Prodonovich telephoned that number, and was told by the investigating officer that the theft had been reported and the stolen property included a dragster and a spare differential that was made specially for a racing car.

After having the above conversations with Lukens and Green in the Speed Shop, Officer Prodonovich went outside to the parking lot and placed defendant Martin under arrest. The officer then opened the trunk of the Mustang and seized the differential.

The evidence set forth above was clearly ample to support the trial court’s finding of probable cause for Officer Prodonovich to arrest Martin for the felony of possessing stolen property. Hence, no error was committed by the trial court in denying defendant Martin’s suppression-of-evidence motion.

C. The Denial of Martin’s Motion to Strike Certain Allegations of Count I as to Objects of the Conspiracy

Defendant Martin contends that since the trial court set aside counts III, IV, and V of the indictment, pursuant to motion under Penal Code section 995, the court erred in denying his motion to strike from count I—the conspiracy count—the allegations that Martin conspired to commit the substantive crimes involved in the dismissed counts. The dismissed counts were count III (bribing a witness), count IV (attempting to induce withholding of testimony), and count V (compounding a felony).

This contention is lacking in merit. A criminal conspiracy exists when two or more persons agree to commit a crime and d<3 an act in furtherance of the agreement. (People v. Cockrell (1965) 63 Cal.2d 659, 667 [47 Cal.Rptr. 788, 408 P.2d 116]; People v. Van Eyk (1961) 56 Cal.2d 471, 478 [15 Cal.Rptr. 150, 364 P.2d 326]; People v. Brown (1969) 272 Cal.App.2d 623, 627 [77 Cal.Rptr. 650].) In order to prove the commission of the offense of conspiracy, it is not necessary to show that the purpose or object of the conspiracy was in fact accomplished. (People v. Robinson (1954) 43 Cal.2d 132, 140 [271 P.2d 865]; People v. Witt (1975) 53 Cal.App.3d 154, 169 [125 Cal.Rptr. 653].) Even though the evidence was insufficient to establish that Martin committed the substantive offenses involved in counts III, IV and V, such insufficiency is no bar to there being evidence sufficient to establish a conspiracy on the part of Martin, to commit those substantive offenses as charged in count I of the indictment.

D. Was It Error to Admit Evidence That Martin Had Committed an Offense Other Than Those Charged Against Him?

Over defendant Martin’s appropriate objection, the trial court permitted Yvonne Stephens to testify that Oxenham, in the presence of defendant Martin, told her that Oxenham and Martin had stolen Kerhulas’ dragster. The clear inference from this testimony is that Martin remained silent in the face of this accusatory statement by Oxenham. No count of the indictment charged Martin with theft of the dragster. It is Martin’s position, therefore, that since he was not charged with theft of the dragster, the sole purpose of the testimony that he stole the dragster was to improperly show his disposition or propensity to commit a crime of which he was not charged as evidence that he committed the various crimes for which he was on trial.

We start our discussion of this contention of Martin by recognizing certain generally accepted principles. Even assuming that evidence is properly introduced that a defendant committed a crime other than that for which he is on trial, such evidence cannot be introduced if it violates one of the exclusionary rules such as the exclusionary hearsay rule. Thus, Yvonne Stephens’ testimony about Oxenham’s statement to her in the presence of Martin is a hearsay statement by Oxenham and is inadmissible (Evid. Code, § 1200, subd. (b)) unless it qualifies for admissibility under some exception to the hearsay rule. Defendant Martin’s silence in the face of Oxenham’s accusatory statement about the dragster theft becomes significant in order to create the exception to the hearsay rule for a party’s adoptive admission. (Evid. Code, § 1221.)

Assuming, as we do, that Oxenham’s statement in defendant Martin’s presence, complies with the requirement for the exception to the hearsay rule for a party’s adoptive admission, we next consider the question of whether the evidence of the statement is barred from admissibility by Evidence Code section 1101, subdivision (b). If evidence that Martin stole the dragster—which constitutes character-trait evidence—has no relevancy to prove any fact of consequence in the case before us other than his disposition or propensity to steal, as proof that he committed the offenses for which he is on trial, such evidence is barred from admissibility as character-trait evidence by virtue of Evidence Code section 1101, subdivision (b).

The People argue that this evidence of Martin’s commission of the crime of theft of the dragster had relevancy apart from proof of Martin’s criminal-offense character trait of a disposition or propensity to commit theft. The additional relevant facts, assert the People, include the facts of “motive,” “intent” and “knowledge.” Relevant issues in the case at bench certainly included the issues of whether defendant Martin committed the acts constituting the offenses of conspiracy, extortion, receipt, concealment and sale of items of stolen property—as charged in counts I, II, VI and VII, respectively. “[W]hen the commission of a criminal act [the crime for which defendant is on trial] is a disputed issue, evidence of motive may become relevant to that issue. Motive is itself a state-of-mind or state-of-emotion fact. Motive is an idea, belief, or emotion that impels or incites one to act in accordance with his state of mind or emotion. Thus, evidence, offered to prove motive, that defendant committed an uncharged offense meets the test of relevancy by virtue of the circumstantial-evidence-reasoning process that accepts as valid the principle that one tends to act in accordance with his state of mind or emotion.” (Jefferson, Cal. Evidence Benchbook (1978 supp.) Special Problems Related to Relevancy, § 21.4, p. 218.) (Italics added.)

But in the case at bench, the People offer no explanation, and we are unable to supply an explanation, of how Martin’s theft of the dragster—an offense not charged against him—could provide a “motive” as proof that Martin acted in conformity with such “motive” and committed the acts involved in the charged offenses for which he was on trial, to wit, conspiracy, extortion, or receipt, concealing and sale of stolen property.

However, theft by Martin of the dragster did have relevancy on other issues of “intent” and “knowledge,” urged by the People. Evidence of Martin’s theft of the dragster would constitute evidence having a “tendency in reason” to prove that he had the requisite “intent” required for the charged offenses of conspiracy, extortion and possession, concealment and sale of stolen property. (See People v. Moreno (1976) 61 Cal.App.3d 688 [132 Cal.Rptr. 569]; People v. Thompson (1972) 25 Cal.App.3d 132 [101 Cal.Rptr. 683].) In addition, evidence that Martin stole the dragster of Kerhulas was relevant to the issue of “knowledge,” an element of the crimes charged in counts VI and VII of receiving stolen property. If Martin had participated in the theft of the dragster, this fact would certainly provide him with knowledge that the special differential from that racing car which he offered to sell to Blair’s Speed Shop was stolen property. (See Thompson, supra, 25 Cal.App.3d 132.)

Defendant Martin relies upon People v. Gibson (1976) 56 Cal.App.3d 119 [128 Cal.Rptr. 302], in asserting that, even if the Yvonne Stephens’ evidence had some relevancy other than character-trait evidence, it should have been excluded under Evidence Code section 352 because the danger of undue prejudice outweighed its probative value. It is true that “[t]he significant teaching of Gibson is that, although Evid C § 352 gives the trial judge wide discretion, it is a discretion that must be exercised with discerning care in connection with the question of the admissibility of other-crimes evidence offered against a defendant, because of the inherently prejudicial nature of such evidence as constituting character-trait and propensity evidence.” (Jefferson, Cal. Evidence Benchbook (1978 supp.) supra, at p. 218.) But we do not find in the case at bench that the probative value of the evidence that Martin stole the dragster was substantially outweighed by the danger of undue prejudice to mandate a holding that the trial court abused its discretion under Evidence Code section 352 in admitting such evidence.

We also take note of the fact that the trial court instructed the jury by giving a modified version of CALJIC Instruction No. .2.50. This instruction told the jury that evidence of commission by Martin of a crime other than that for which he was on trial was not to be considered to prove that he was a person of bad character or that he had a disposition to commit crimes, and that it was to be considered only for the limited purpose of determining whether it tended to show motive, intent, knowledge, or existence of conspiracy. Although it was error for the trial court to leave the words “motive” and “existence of conspiracy” in the instruction, there was little danger that the jury was misled to defendant Martin’s prejudice.

E. The Trial Court Properly Held That Oxenham’s Hearsay Statement—Made in the Presence of Defendant Martin—That Oxenham and Defendant Martin Had Stolen the Dragster, Was Admissible Against Martin as a Party’s Adoptive Admission

Under part D above, we considered the admissibility of Oxenham’s hearsay statement to Yvonne Stephens that he and defendant Martin had committed the theft of the dragster in light of Martin’s objection that the evidence was inadmissible as character-trait propensity evidence proscribed by Evidence Code section 1101. We assumed, for purposes of our ruling on admissibility, that declarant Oxenham’s accusatory statement, made to Yvonne Stephens in the presence of defendant Martin, satisfied the requirements for the exception to the hearsay rule for a party’s adoptive admission. (Evid. Code, § 1221.) Defendant Martin also contends, however, that Oxenham’s hearsay statement was inadmissible as hearsay evidence and that it did not satisfy the requirements for a party’s adoptive-admission hearsay exception.

The thrust of Martin’s argument against admissibility goes to the question of whether Martin was present when Oxenham made the statement to Stephens. During Yvonne Stephens’ direct examination, she unequivocally testified that Oxenham’s statement, that he and Martin were the ones who stole the dragster, was made in the presence of defendant Martin.

But on cross-examination, she testified that she could not remember whether Martin was present or not. Defense counsel then moved to strike that testimony on the lack-of-foundational ground that Martin’s absence when the Oxenham statement was made precluded the statement from being considered an adoptive admission of Martin; defense counsel also requested that the jury be admonished accordingly.

The trial court indicated that Martin’s motion to strike would be denied but that the jury would be admonished to disregard the testimony if the jury found that Martin was not present when Oxenham made the statement; however, defense counsel indicated that he stood upon his motion to strike and only desired a jury admonition upon the testimony being stricken. The trial court reiterated the ruling that Yvonne Stephens’ testimony established admissibility of Oxenham’s statement as an adoptive admission. In so ruling, the trial court noted that Stephens’ testimony was not strong evidence and that defense counsel could certainly comment to the jury upon the conflict in her testimony with respect to whether defendant Martin was present when Oxenham made the statement.

We observe that it is a well-settled evidentiary rule of law that evidence of another person’s hearsay statement is admissible, against a party as an adoptive admission if such party, with knowledge of the content of such statement, has, by words or conduct, manifested his adoption of such statement or manifested his belief in the truth of such statement. (Evid. Code, § 1221.)

Manifestation by a party of the adoption of, or belief in the truth of, another person’s hearsay statement—especially an accusatory-type statement—frequently comes from evasive or equivocal replies. (People v. Richards (1976) 17 Cal.3d 614 [131 Cal.Rptr. 537, 552 P.2d 97]; People v. Preston (1973) 9 Cal.3d 308 [107 Cal.Rptr. 300, 508 P.2d 300]; People v. Edmondson (1976) 62 Cal.App.3d 677 [133 Cal.Rptr. 297].) But a party’s conduct of silence in the face of another hearsay statement of the accusatory type is equally efficacious in denoting an adoption of, or a belief in, the truth of such statement if the circumstances are such that it would be reasonable, normal or expected for a party to speak up and deny the truth of the statement if the statement is false. (See Edmondson, supra, 62 Cal.App.3d 677; People v. Cooper (1947) 81 Cal.App.2d 110 [183 P.2d 67].)

Since a party’s conduct or words in the face of another’s hearsay statement can be considered an adoption of such statement or a manifestation of belief in the truth of the statement only if the party has knowledge of the content of the other person’s hearsay statement, proof of a party’s knowledge of another’s hearsay statement is crucial. Proof may be circumstantial in nature however. Thus, if silence is to be considered conduct manifesting a belief in the truth of another’s hearsay statement, the statement must have been spoken loud enough, and the party must have been close enough for the inference to be drawn that the party heard the statement.

That a party had knowledge of the content of another’s hearsay statement and then by words or conduct manifested an adoption of, or a belief in, its truth, are preliminary facts to be established for the hearsay statement to qualify as a party’s adoptive admission and admissible under this exception to the hearsay rule. As indicated by the Assembly Committee on Judiciary’s comment to Evidence Code section 403, the existence of these preliminary facts to admissibility of the hearsay statement is to be determined by the standard set forth in section 403. This standard is satisfied if the proponent of the hearsay statement produces evidence of the existence of the preliminary facts that is sufficient for a trier of fact to reasonably find therefrom the existence of such preliminary facts.

In the case before us, the record demonstrates that if defendant Martin was present when Oxenham told Yvonne Stephens that he and Martin had stolen the dragster, Martin had knowledge of the statement and his conduct of silence constituted an adoption of, or belief in, the truth of the statement. Under these circumstances, Oxenham’s hearsay statement was admissible against defendant Martin under the hearsay-rule exception for a party’s adoptive admission.

Martin asserts, however, that since Yvonne Stephens testified on cross-examination that she could not remember whether Martin was present or not when Oxenham made his inculpatory hearsay statement, the preliminary facts for admissibility of Oxenham’s statement as an adoptive admission of defendant Martin were not established. If the trial judge had to be convinced by a preponderance of the evidence of the existence of the preliminary facts of Martin’s knowledge of Oxenham’s statement and Martin’s conduct of silence in response thereto, Martin’s position would be well taken. The trial judge noted that the conflict in Stephens’ direct and cross-examination testimony regarding Martin’s presence when Oxenham made his inculpatory statement cast doubt on the strength of Stephens’ testimony.

But under Evidence Code section 403, the evidence as to the existence of the preliminary facts for admissibility of a declarant’s hearsay statement against a party as the party’s adoptive admission need not convince the trial judge, by a preponderance of the evidence, that such preliminary facts exist. The trial judge needs to be convinced by the lesser burden of proof that the evidence is sufficient for a reasonable trier of fact to find that the preliminary facts exist—irrespective of the fact that the trial judge finds personally that the evidence preponderates in favor of a finding that such preliminary facts do not exist. (See People v. Lebell (1979) 89 Cal.App.3d 772 [152 Cal.Rptr. 840].) In the instant case, the testimony by Stephens on direct examination that defendant Martin was present when Oxenham made his statement inculpating Martin in the theft of the dragster satisfied the prosecution’s burden of proof for admissibility of the statement even though Stephens’ testimony on cross-examination tended to negate the direct-examination testimony as to the presence of Martin when the Oxenham statement was made. (Evid. Code, §§ 1221, 403.)

In addition to being admissible against defendant Martin under the adoptive admission exception to the hearsay rule (Evid. Code, § 1221), Yvonne Stephens’ testimony about Oxenham’s statement to her inculpating defendant Martin in the theft of the truck, trailer and dragster, was admissible against defendant Martin under the coconspirator exception to the hearsay rule set forth in Evidence Code section 1223. This exception would be satisfied whether Martin was present or not when Oxenham made the statement to Stephens.

The requirements of the coconspirator exception to the hearsay rule are (1) that declarant’s statement was made while declarant was participating in a conspiracy to commit a crime or civil wrong; (2) that declarant’s statement was one that was made in furtherance of the objectives of that conspiracy; and (3) that declarant’s statement was made either prior to or during the time that the party against whom the statement is offered was also participating in that conspiracy. The existence of the conspiracy and related circumstances as set forth in the requirements (1), (2) and (3) are preliminary facts to admissibility of a declarant’s statement against a party and must be proved by the proponent of the evidence under the standard of being sufficient for a reasonable trier of fact to find the existence of such facts and not to convince the trial judge of their existence by a preponderance of the evidence.

The summary of the evidence set forth previously herein establishes, without question, that Oxenham made his statement to Yvonne Stephens while he was participating in a conspiracy with Martin and others relating to the stolen truck, trailer and dragster and related parts; that the statement was made in furtherance of the objective of the conspiracy to possess, conceal and dispose of the stolen property for some remuneration; and that the statement was made either prior to or during the time that defendant Martin was participating in that conspiracy. Oxenham’s statement was thus admissible against defendant Martin, even if Martin was not present when the statement was made, as relevant evidence to prove that Martin was in possession of stolen property and concealing the same for ultimate disposition for remuneration as charged against him in the various counts of the indictment.

F. The Admissibility of Prior Consistent Statements of the Witness Yvonne Stephens

Over defendant Martin’s objection, Officer Elliott was permitted to testify regarding out-of-court hearsay statements, made to him by Yvonne Stephens. These statements were consistent with her testimony at trial on direct examination. The prior statements which Stephens had made to Officer Elliott, and to which objection was made by defendant Martin, dealt with Stephens’ assertion that Oxenham had told her that he and defendant Martin had stolen the truck, trailer and dragster; that Oxenham wanted to sell it back to Kerhulas; that Oxen-ham called Kerhulas and wanted him to pay $3,000 to get his property back; that defendant Pic’l called her house one morning and that Oxen-ham became upset because Pic’l had been arrested when he had nothing to do with the actual theft of the property of Kerhulas. All of these prior-to-trial statements made by Stephens to Officer Elliott were consistent with the trial testimony of Stephens on her direct examination.

Martin’s claim of error in the receipt into evidence of these prior statements is that they violated Evidence Code section 791, which sets forth the conditions for admissibility of prior statements of a witness to support such witness’ credibility. Section 791 authorizes admissibility of prior statements of a witness consistent with such witness’ trial testimony to support the witness’ credibility only if (1) evidence of prior inconsistent statements has been introduced to attack the witness’ credibility and the prior statements consistent with the witness’ trial testimony were made before the making of the alleged inconsistent statements; or (2) an express or implied charge has been made that the witness’ trial testimony is recently fabricated or the result of some improper motive and the prior statements consistent with the witness’ trial testimony were made before the motive for fabrication or other improper motive is alleged to have arisen.

Martin asserts that no evidence was introduced of any prior inconsistent statements made by the witness Stephens, nor was any claim made that her trial testimony was the result of any motive for fabrication or other improper motive to warrant receipt of her prior-to-trial statements to Officer Elliott. Martin concedes, however, that Stephens was asked on cross-examination whether she had been granted immunity and that she had replied in the negative, and that it had been elicited from her that no charges had ever been filed against her.

Defendant Martin’s position is patently erroneous. The mere asking of questions on cross-examination relating to whether Stephens had been granted immunity from prosecution and eliciting information from her that no criminal charges had been filed against her clearly constituted an implied charge by the defense that her motive for testifying for the prosecution was to secure immunity from prosecution. Even though she testified that she had not been granted immunity, the question to her created the implication that her testimony lacked credibility and that she had a motive to give false testimony. Stephens’ prior-to-trial statements to Officer Elliott were made before the motive to fabricate arose and, hence, became admissible to support Ms. Stephens’ credibility, pursuant to Evidence Code section 791.

The case at bench is thus not unlike that of People v. Armstrong (1969) 275 Cal.App.2d 30 [79 Cal.Rptr. 668], in which a witness, in answer to a question posed on cross-examination, denied that he had been promised payment to testify for the prosecution. This question posed was held to constitute an implication of motive to fabricate to sanction admissibility of prior statements consistent with the witness’ trial testimony. And in People v. Cannady (1972) 8 Cal.3d 379 [105 Cal.Rptr. 129, 503 P.2d 585], it was brought out that the day before a witness testified, he was told by the prosecutor that the judge might rehear his case. This was held to create an implication of a motive to falsify to justify admissibility of prior-to-trial statements of the witness consistent with his trial testimony, The cases of Armstrong and Cannady constitute compelling authority for the admissibility of the prior consistent statements of Yvonne Stephens to Officer Elliott.

G. Defendant Martin’s Exculpatory Statement to the Police Was Erroneously Admitted Into Evidence

After defendant Martin was arrested on August 3, 1978, he spoke with Officer Moir who asked him where he got the dragster rear end (the differential) he tried to sell to Blair’s Speed Shop. Martin replied that about a month before a friend had given him this rear end for Martin’s helping the friend clear out his garage. Over objection, the trial court permitted Officer Moir to testify to Martin’s making this statement. It is urged by Martin that the trial court’s ruling was error.

Martin asserts that the statement was not voluntarily made and, since the statement was false, that it was erroneously admitted to show his bad character.

On the issue of involuntariness, the trial court conducted an evidentiary hearing (Evid. Code, §§ 402, 405) out of the presence of the jury. Defendant Martin testified that he made the statement after he had been given his Miranda rights and refused to waive them. Hence, the elicitation of the statement, even though exculpatory in character, after he had exercised his Miranda right not to talk without an attorney, made his statement inadmissible under Miranda and People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272]. Martin also testified that he had been promised immunity and the $2,000 reward by the officers if he would talk. But Officers Moir and Mason disputed Martin’s testimony and said that Martin told them he understood his rights but would talk to the officers only about the differential in the absence of an attorney and that he then made the statement about how he had obtained the differential.

The trial court concluded from the testimony introduced at the evidentiary-admissibility hearing that Martin’s statement was made voluntarily and evidence of its making would be admissible before the jury. Where the voluntariness of a defendant’s statement is dependent upon resolution of conflicts in testimony, the appellate court is bound by the resolution made by the trial court. (People v. Jimenez (1978) 21 Cal.3d 595 [147 Cal.Rptr. 172, 580 P.2d 672].)

In the case at bench, however, the determination of voluntariness does not end the inquiry as to admissibility. Defendant Martin’s statement was neither an admission nor confession since it was an exculpatory statement—not an inculpatory or incriminating statement. The statement was thus not offered in evidence by the prosecution as a hearsay statement—offered to prove the truth of the facts asserted in the statement—made admissible by the exception to the hearsay rule for a party’s personal admissions. (Evid. Code, § 1220.)

Martin’s exculpatory statement to the police officers was offered into evidence necessarily by the prosecution as nonhearsay evidence—not offered for its truth. Nonhearsay evidence, as well as hearsay evidence, must meet the test of relevancy to be admissible. Did the statement have a tendency in reason to prove some disputed fact of consequence in the action as required by Evidence Code section 210, which defines relevant evidence? Since Martin did not testify, his extrajudicial exculpatory statement was not admissible to impeach his credibility as a witness.

Defendant Martin’s contention is that his exculpatory statement was admitted on a theory that it tended to show his bad character and untruthfulness since the prosecution’s evidence revealed that his statement, though exculpatory in nature, was actually false. Martin’s point on inadmissibility is well taken. The situation before us is not unlike that presented in People v. Morgan (1978) 87 Cal.App.3d 59 [150 Cal.Rptr. 712], In Morgan it was argued that defendant’s exculpatory statement conflicted with the testimony of a prosecution witness and thus led to an inference that it established that the Morgan defendant had a consciousness of guilt. But the Morgan court rejected this rationale that such a conflict could be said to lead reasonably to an inference that defendant’s statement was proved false and established defendant’s state of mind of consciousness of guilt. The Morgan court held that any such inference of a consciousness of guilt on defendant’s part would amount to rank speculation since the trier of fact had not heard from the defendant as a witness and, hence, would constitute a nonreasonable inference. A nonreasonable inference sought to be drawn from evidence makes such evidence irrelevant and inadmissible since evidence, to be relevant, is limited by Evidence Code section 210 to evidence having a tendency in reason to prove a disputed fact that is of consequence to the determination of the action. We conclude, therefore, that it was error for the trial judge to admit evidence of defendant Martin’s exculpatory statement. We shall consider subsequently the question of whether this erroneous ruling constituted prejudicial error.

H. No Error in the Denial of Defendant Martin’s Motion to Suppress Evidence of Telephone Records

At trial, the prosecution called as a witness Walter Schmidt, custodian of records of General Telephone Company. Schmidt appeared pursuant to a subpoena duces tecum to obtain records of telephone numbers assigned to defendant Pic’l. Prior to Schmidt’s appearance, Yvonne Stephens had testified that Oxenham had made a telephone call to Pic’l in her presence but did not know whether the call from her (213) area code was