Hurwitz, In re

• Decision Date: 19 July 1976
• Docket Number: S.F. 23364
• Citation: 551 P.2d 1234,17 Cal.3d 562,131 Cal.Rptr. 402
• Court: California Supreme Court
• Parties: , 551 P.2d 1234 In re James Spencer HURWITZ on Disbarment.

Page 402

131 Cal.Rptr. 402

17 Cal.3d 562, 551 P.2d 1234

In re James Spencer HURWITZ on Disbarment.

S.F. 23364.

Supreme Court of California,

In Bank.

July 19, 1976.

As Modified on Denial of Rehearing Aug. 18, 1976.

William K. Coblentz and Jonathan M. Rutledge, San Francisco, for petitioner.

Herbert M. Rosenthal, San Francisco, for respondent.

BY THE COURT.

This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar of California that petitioner be disbarred.

Petitioner, who was admitted to the practice of law in 1970, has no prior record of discipline. he was originally indicted on a charge of burglary (Pen.Code, § 459), but at jury trial, was found guilty of the lesser and included offense of unauthorized entry of property (Pen.Code, § 602.5). ¹ In 1974 we referred the matter to the State Bar for a hearing and report as to whether the facts and circumstances surrounding the commission of the offense involved moral turpitude or other misconduct and, if so found, for a recommendation as to the appropriate discipline to be imposed. The single member local administrative committee found that the facts and circumstances surrounding petitioner's violation of Penal Code section 602.5 involved moral turpitude and recommended that he be suspended from the practice of law for one year. The board unanimously adopted the committee's findings but recommended that petitioner be disbarred.

In mid-1972, following the death of her husband, petitioner was retained by Eva Pompei, a long-time family friend, to engotiate sale of the Pompei family's restaurant. Pursuant to her normal routine, on Saturday, July 1, 1972, Ms. Pompei left home approximately 3:30 p.m. to go to the restaurant to work. Approximately 6 p.m. that same day, petitioner, who had not previously been to the Pompei home, arrived there to discuss with Ms. Pompei 'a couple of things of a pressing nature' in connection with the restaurant sale.

Rose Hennessy, a neighbor of Ms. Pompei's observed petitioner standing on the Pompei front porch and periodically glancing toward the street 'to see if someone was around.' After Ms. Hennessy saw petitioner 'jam' to the front door and enter the Pompei house, she contacted Louis Granelli, Ms. Pompei's next door neighbor, and told him what she had just observed.

Granelli immediately asked his wife to telephone the police, grabbed his .22 caliber rifle and proceeded to the Pompei home with his son, Harry, to investigate. After he went up to the front stairs of the Pompei residence, rang the doorbell and observed petitioner momentarily looking out the kitchen window at him, Louis Granelli told his son to go around into the backyard of the Pompei house to investigate.

When Harry Granelli arrived at the back door of the Pompei home, he looked through a rear window and observed petitioner 'hurrying to open the door' and looking 'like he was trying to get out.' Shortly thereafter petitioner opened the rear door of the Pompei house. When Harry Granelli inquired as to what he was doing, petitioner stated that he was a friend of the Pompei family and was there doing some work for Ms. Pompei. At this time, petitioner 'had some old clothes like a sweat shirt on' and was wearing a pair of yellow rubber gloves on his hands.

Petitioner and Harry Granelli proceeded to walk toward the Pompei garage where they were encountered by Louis Granelli who observed petitioner putting some yellow rubber gloves in his back pocket. Louis Granelli's suspicions were further aroused when he asked petitioner what he had been doing in the Pompei home and petitioner stated that Ms. Pompei's son, Walter, had sent him. Granelli knew that Walter Pompei did not even have a key to his mother's house and so ordered petitioner to wait for the police to arrive. At this point, however, petitioner started to walk towards the alley behind the Pompei garage and Harry Granelli had to struggle with petitioner to stop him. While petitioner was being restrained near the alley, the Granellis testified that he reached under his shirt or the waist of his pants and a crowbar dropped to the ground through one of his pantlegs or from the top of his pants.

When the police arrived, they found everything in order in the Pompei home except in one back room where two metal boxes were found open on the floor and various papers were scattered about. A closet door in the room as well as the drawers of a filing cabinet inside the closet were also open. Upon further examination, it was discovered that the area around the doorjamb on Ms. Pompei's front door was splintered and that there were 'pry marks' about one-half inch deep. At petitioner's trial, a police laboratory specialist testified that Ms. Pompei's front door had obviously been pried open with a tool.

Petitioner has persistently maintained that when he arrived at the Pompei residence, the front door was ajar about four to eight inches and that after he rang the doorbell, called 'Eva' several times and received no response, he became concerned for his client's welfare and entered the house. Petitioner asserts that he was inside the home for only a minute or so and did not touch anything or notice any of the rooms in disarray. He further contends that he was about to leave when he saw Louis Granelli running up the front stairs to the house carrying a gun. Petitioner told the committee that he 'took off the back way' because he was 'damn scared that he was going to be blamed for something' because of his previous criminal convictions for burglary. ² According to petitioner, it was as he was going down the back steps of the Pompei home that he 'kind of stumbled over' the crowbar and yellow rubber gloves and 'kind of turned back and picked them up,' although he could not explain why.

The record indicates that petitioner received his B.A. degree from Washington University in St. Louis in 1961 and was studying law at Hastings College of the Law in 1962 when he was indicted on 10 counts of second degree burglary in San Francisco involving the theft of collections of coins and stamps. ³ In accordance with these charges, petitioner pleaded guilty to four counts of burglary. On April 27, 1964, petitioner also pleaded guilty to one count of burglary in St. Louis, in a case involving circumstances similar to those of the burglaries in San Francisco. Subsequent to his release from prison on these various charges, petitioner entered Golden Gate University Law School in 1964, passed the bar examination in 1968 and was admitted to practice law in this state on March 2, 1970.

Petitioner now contends that the facts and circumstances surrounding his conviction of Penal Code section 602.5 do not involve moral turpitude, and that even assuming that such conviction is viewed as involing moral turpitude, the recommended discipline is too severe. Petitioner further alleges that it is improper for this court to review his conviction of Penal Code section 602.5 to determine if the facts surrounding such conviction demonstrate that a burglary was, in fact, committed.

Although the burden is upon one seeking a review of a recommendation of disbarment to show that the decision is erroneous (Bus. & Prof.Code, § 6083, subds. (a) and (c)), or that the board's finding of moral turpitude is not supported by the evidence (Lee v. State Bar (1970) 2 Cal.3d 927, 939, 88 Cal.Rptr. 361, 472 P.2d 449), the question of moral turpitude itself is one of law, the final resolution of which is with this court (In re Higbie (1972) 6 Cal.3d 562, 569, 99 Cal.Rptr. 865, 493 P.2d 97; In re Alkow (1966) 64 Cal.2d 838, 51 Cal.Rptr. 912, 415 P.2d 800). It is our duty to independently examine the record, reweigh the evidence and pass on its sufficiency (Emslie v. State Bar (1974) 11 Cal.3d 210, 220, 113 Cal.Rptr. 175, 520 P.2d 991). The fact that a jury...