Callan v. Superior Court In and For San Mateo County

• Decision Date: 18 June 1962
• Citation: 204 Cal.App.2d 652,22 Cal.Rptr. 508
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas J. CALLAN, Jr., Petitioner, v. SUPERIOR COURT IN AND FOR the COUNTY OF SAN MATEO, Respondent. Civ. 20431.

Page 508

22 Cal.Rptr. 508

204 Cal.App.2d 652

Thomas J. CALLAN, Jr., Petitioner, v. SUPERIOR COURT IN AND FOR the COUNTY OF SAN MATEO, Respondent.

Civ. 20431.

District Court of Appeal, First District, Division 1, California.

June 18, 1962.

Aaronson, Cohn & Dickerson, San Carlos, for petitioner.

Stanley Mosk, Atty. Gen., John S. McInerny, Edward P. O'Brien, Deputies Atty. Gen., San Francisco, for respondent.

SULLIVAN, Justice.

Defendant Thomas J. Callan, Jr., seeks a writ of prohibition restraining the Superior Court of San Mateo County from taking further action upon an indictment charging him with 52 felony crimes.

The indictment, returned by the grand jury on November 2, 1961, accuses petitioner and one Sergie Gregoriev of the following crimes, all of which are conspiracies in violation of section 182 of the Penal Code: 20 counts of conspiracy to commit grand theft; 8 counts of conspiracy to commit forgery; 8 counts of conspiracy to offer false or forged instruments to be filed of record; 8 counts of conspiracy to make a false certificate or writing by a notary public; and 8 counts of conspiracy to procure and execute fraudulent conveyances. ¹ On November 27, 1961, petitioner moved to set aside the indictment on the grounds that petitioner had been indicted without reasonable or probable cause, that the 20 counts charging conspiracy to commit grand theft should be dismissed as a matter of law and that as a matter of law the 52 conspiracy counts should be consolidated. On November 30, 1961, the motion was granted as to the 8 counts charging conspiracy to procure and execute fraudulent conveyances and petitioner thereafter entered a plea of not guilty to each of the 44 remaining conspiracy counts. Petitioner then filed the present petition for a writ of prohibition. (Penal Code, § 999a.) We denied the petition as to all counts of the indictment except counts 1 through 20 inclusive, which charge conspiracy to commit grand theft, and as to said 20 counts ordered an alternative writ of prohibition to issue. Our discussion is therefore confined to the above 20 counts.

The gist of the alleged criminal enterprise is the acquisition of 20 parcels of land. Each of these is individually and separately covered by one of the 20 counts before us. All 20 parcels are alleged to have been conveyed to the defendant Gregoriev by 8 quitclaim deeds from grantors who are claimed to be fictitious and not the record owners of the property. The signatures of all 8 grantors ² were acknowledged by the defendant Callan as notary public. Gregoriev, thereafter, by one grant deed, conveyed 18 of the 20 parcels to the United States Mortgage Corporation, a corporation, of which Callan and his brother are the only officers, directors and stockholders. United States Mortgage Corporation thereupon commenced an action to quiet title to such 18 parcels under the Destroyed Land Records Relief Law, sometimes referred to as a McEnerney action.

Each of the 20 counts in identical language charges '[t]hat the said SERGIE GREGORIEV and THOMAS J. CALLAN, JR., and each of them, on and between July 8, 1959, and February 1, 1961, at and in the County of San Mateo, State of California, did wilfully, unlawfully and feloniously conspire, combine and agree together to commit the crime of Grand Theft, a felony.' All except 2 of the 20 counts allege four similar overt acts committed in pursuance of the object of the conspiracy. These may be summarized as follows: Overt Act 1: That on a specified date, not the same in all counts, Callan acknowledged the signature of the grantor of the quitclaim deed purporting to convey to Gregoriev the particular parcel of property covered by the count in question. Overt Act 2: That on a specified date, not the same in all counts, the defendant Gregoriev recorded said quitclaim deed. Overt Act 3: That on a specified date, ³ the defendant Gregoriev executed a grant deed purporting to convey to United States Mortgage Corporation the particular parcel covered by the count in question. Overt Act 4: That on February 15, 1961, the defendant Callan, acting in the capacity of an officer of United States Mortgage Corporation, filed an action to quiet the title in the United States Mortgage Corporation as to the particular parcel. Two of the 20 counts (counts 12 and 19) allege only the first two overt acts and no others.

The testimony before the grand jury shows that during the period from July 1959 to January 1961 Gregoriev was named as grantee on 8 separate quitclaim deeds from 8 individual grantors, covering anywhere from 1 to 4 parcels of property, and altogether 20 parcels. Each of the deeds was shown to bear a notarial certificate of acknowledgment by the defendant Callan. The record also shows the execution of a grant deed by Sergie Gregoriev and Florence Gregoriev to United States Mortgage Corporation on February 1, 1961, and the commencement of the quiet title action by such corporation on February 15, 1961. The complaint to quiet title was verified by petitioner.

Willard Crown, a deputy assessor of San Mateo County, testified that at the request of the district attorney's office he had examined the official records of the San Mateo County Assessor's office to determine who were the assessed owners of the 20 parcels of land here involved on March 2, 1959. The witness gave the names of such assessed owners as disclosed by the records. He also testified that although he checked the records back to 1908 or 1909 individually for each of the 20 parcels, he did not find as assessed owners or in any way referred to in the records, any of the names of the grantors appearing on the quitclaim deeds to Gregoriev.

Jack Jones, an inspector employed by the district attorney's office, testified that after checking various common records and sources of information such as telephone and city directories for San Mateo County, San Francisco and other communities in the bay area, death records and voters' registration records in San Francisco and San Mateo County, credit bureaus, records of the Department of Motor Vehicles and Bureau of Criminal Identification and Investigation, as well as records of certain Y.C.M.A. hotels, ⁴ he was unable to locate any of the 8 grantors of the quitclaim deeds. He also testified that during a conversation he had with Callan on July 13, 1961, the latter admitted to him that he did not personally know any of the grantors, and when asked if the grantors personally signed the deeds in his presence, Callan refrained from giving an answer and referred Jones to Callan's attorney. ⁵

Richard Harris, a title insurance company escrow officer, testified that at the request of Gregoriev he paid delinquent taxes for, and thereby redeemed, several of the 20 parcels of property. While in the employ of another title company he had handled accommodation escrows for the redemption of 3 additional parcels of the 20 involved and had billed the defendant Callan for the amount of the delinquent taxes paid. Harris testified that Gregoriev was the person with whom he dealt and that he could not explain how Callan's name or the name of Callan Realty appeared on the escrow transaction.

Al Rocchi, a representative of another title insurance company, produced records of certain accommodation escrows pertaining to some of the 20 parcels of land, which disclosed that the defendant Callan had been billed for the taxes paid, that Callan had ordered preliminary title reports for two of the parcels and Gregoriev for 7 of the parcels. This witness also searched the titles of the 20 parcels but did not find that any of the persons named as grantors on the 8 quitclaim deeds ever appeared of record as having any interest in said property.

There was also read to the grand jury an unsigned, transcribed statement in question and answer form, given by the defendant Gregoriev to a deputy district attorney and an investigator. ⁶ Gregoriev stated that he received no money at all as a consideration for his conveyance of the 18 parcels to the United States Mortgage Corporation but that '[w]hen the time came, we would decide what the breakdown would be * * *. We haven't worked out anything that's solid * * * nothing has been worked out, the percentage.' In response to questions as to whether the property would be subsequently sold and what percentage he would get, Gregoriev stated that '[w]hen you hold that many lots, you're certainly not buying them just to keep them. * * * I just did it that way--no particular reason, no financial adjustment, on a percentage basis if and when the property was sold.' He stated that he had the title companies pay the taxes on the parcels involved, that he then reimbursed the title companies, using his own money, that he had not yet been reimbursed by United States Mortgage Corporation and did not 'know exactly how they will be worked out.' According to Gregoriev, Callan had gone out with him to try to acquire some of the parcels and '[y]ou could say that' they were 'both sort of working together on this.' Although at first stating that Callan put up no money to pay any of the delinquent taxes, he subsequently admitted that 'I really don't remember all of it. He might have put up some.'

According to Gregoriev, he received the quitclaim deeds in the following manner: He advertised for tax delinquent properties in San Francisco newspapers. The persons who eventually became the grantors on the quitclaim deeds contacted him by telephone or mail. All were in San Francisco. They would agree to accept amounts varying from $25 to $100 for their interest in the property. He would mail the quitclaim deed to them as directed, always to a hotel or in care of general delivery. He never personally met any of the 8 grantors. He paid them by sending cash by mail, was not furnished with any telephone numbers by them, and retained no correspondence bearing on the transactions. Gregoriev admitted in the above statement...