Dick, In re, Cr. 9536

• Decision Date: 08 March 1966
• Docket Number: Cr. 9536
• Citation: 49 Cal.Rptr. 673,64 Cal.2d 272,411 P.2d 561
• Court: California Supreme Court
• Parties: , 411 P.2d 561 In re Clyde Leroy DICK on Habeas Corpus.

Page 673

49 Cal.Rptr. 673

64 Cal.2d 272, 411 P.2d 561

In re Clyde Leroy DICK on Habeas Corpus.

Cr. 9536.

Supreme Court of California, In Bank.

March 8, 1966.

Clyde Leroy Dick, in pro. per., and Robert N. Beechinor, San Francisco, under appointment by Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien and Robert R. Granucci, Deputy Attys. Gen., for respondent.

PEEK, Justice.

Petitioner, by this application for the writ of habeas corpus, seeks relief from his confinement in San Quentin Prison under a judgment of conviction on seven counts of issuing checks without sufficient funds (Pen.Code, § 476a), with two prior felony convictions. The judgment was affirmed on appeal and is now final. (People v. Dick, 200 Cal.App.2d 424, 19 Cal.Rptr. 317.)

The only issue of substance in this collateral attack on the judgment concerns the propriety of the mult- iple convictions, as felonies, arising out of petitioner's issuance of a series of checks with insufficient funds. Prior to 1995 the issuance of any one check or each subsequent check, regardless of the amounts, constituted violations of section 476a and each violation was a felony. In that year the section was amended by the addition of sub- division (b) to the former language, which was modified in minor res- pects and designated subdivision (a). (Stats.1995, ch. 1862, § 1.) The language of subdivision (b), which qualified subdivision (a), has it- self been modified in minor respects (Stats.1957, First Ex.Sess., 1956, ch. 30, § 1; Stats.1957, ch. 222, § 1), and at the time of the commis- sion of the offenses herein, provided in pertinent part: '(b) However, if the total amount of all such checks, drafts, or orders that the de- fendant is charged with and convicted of making, knowing, or uttering does not exceed fifty dollars ($50), the offense is punishable only by imprisonment in the county jail for not more than one year * * *.' Further provisions of subdivision (b) exclude its relief in instances where an accused has prior, similar convictions. The prior convictions charged and found in the instant case, however, were for unrelated crimes.

The courts have had difficulty in applying subdivision (b). For instance, in People v. Kennedy, 210 Cal.App.2d 599, at page 601, 26 Cal.Rptr. 696, at page 697, it is said: 'While it is clear that the issuance of one or more checks, the total of which does not exceed $50.00, is a misdemeanor, triable in the justice court, and that the issuance of one check for more than $50.00, or several checks which add up to more than $50.00, is a felony, there is nothing in the applicable code sections which specifically answers the question whether the issuance of multiple checks, each for $50.00 or less, but which total more than $50.00, can constitute as many felonies as there are checks.' The court then looked to the intent of the Legislature in the enactment of the amendments to section 476a and concluded that because the punishment might have been excessive in particular applications of the original section, the amendments were intended to create a new offense of issuing multiple checks totaling $50 or less, triable as a misdemeanor, and that a single felony was contemplated by the Legislature when the accused 'wrote the check that brought the total to more than $50.00.' (P. 602, 26 Cal.Rptr. p. 698.) In the Kennedy case the issuance of four fraudulent checks, each for less than $50, were charged in four separate counts and it was the third check which brought the total to over $50. The court did not affirm as to that count, however, but rather as to the fourth count, which brought the total to $85. The judgment was reversed as to the third as well as the first and second counts.

In the later case of People v. McCann, 233 Cal.App.2d 561, 43 Cal.Rptr. 789, a defendant was charged and convicted in three counts with violations of section 476a; in the first count with issuing one check, with insufficient funds, for $90; in the second with issuing three such checks totaling.$64.41; and in the third with issuing two such checks totaling $75. None but the Count I check exceeded $50. Evidently encouraged by the precise holding in the Kennedy case the McCann court stated at page 566, 43 Cal.Rptr. at page 793 that in Kennedy the court held that the issuance of checks in individual amounts not over $50 constituted a felony only when the total exceeded $50, 'and that the issuance of such checks in a total amount exceeding $50, no matter what the total might be, did not constitute the commission of more than one felony.' In accordance with this view of the Kennedy holding, the McCann court modified the judgment before it to show that the defendant was convicted of a first felony offense of issuing the single check in excess of $50, as charged in the first count, and one additional felony offense of issuing checks the total of which was in excess of $50. As modified the judgment was affirmed.

In the instant case, the checks which the jury found defendant issued in violation of section 476a are as follows: $10 on August 26, 1960 (Count I); $20 on August 27, 1960 (Count II); $10 on August 27, 1960 (Count III); $20 on August 30, 1960 (Count IV); $7.05 on August 31, 1960 (Count X); $5.35 on October 22, 1960 (Count XIII); $23.55 on December 22, 1960 (Count IX). Petitioner was acquitted of other charges of violations of section 476a contained in Counts V, VI, VII, VIII, XI and XII.

It appears without dispute, and the People in fact concede, that petitioner was improperly convicted of seven felonies, and is entitled to some relief. We agree with the People's interpretation of the statute that when petitioner issued the check charged in Count IV, making the total of checks issued to that time $60, the violation constituted a felony. Hence petitioner was properly convicted under Count IV, and improperly convicted under Counts I, II and III.

The difficult question concerns Counts IX, X and XIII. In McCann it was held that once an accused has committed a first felony by the issuance of checks each in an amount not over $50 but whose total exceeds $50, he can continue to issue similar checks with immunity insofar as additional offenses are concerned. The People contend that if, after the initial felony is committed, the accused continues to write checks not over $50 in amount, a second felony is committed when he issues the check which causes the total in this second series to...