People v. Bogart

• Decision Date: 05 May 1970
• Docket Number: Cr. 13244
• Citation: 7 Cal.App.3d 257,86 Cal.Rptr. 737
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Daniel BOGART and June Bogart, Defendants and Appellants.

Page 737

86 Cal.Rptr. 737

7 Cal.App.3d 257

The PEOPLE of the State of California, Plaintiff and Respondent, v. Peter Daniel BOGART and June Bogart, Defendants and Appellants.

Cr. 13244.

Court of Appeal, Second District, Division 2, California.

May 5, 1970.

Hearing Denied July 1, 1970.

Bertram H. Ross, under appointment by the Court of Appeal, Los Angeles, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

McMURRAY, Justice pro tem. ^*

Peter Daniel Bogart, an attorney in this state, and his wife June Bogart were charged by indictment on February 27, 1964 with 40 counts of Felony. After motions under section 995 of the Penal Code resulted in 16 counts being dismissed as to Peter Bogart and two counts being dismissed as to June Bogart, the People appealed from such orders, but proceeded to prosecute the remaining counts of the indictment.

Motion to place proceedings off calendar pending determination of the appeals from the orders dismissing the various counts was denied; Peter Bogart's demurrer to the indictment was overruled and, after due arraignment of defendants with counsel, defendants pleaded, 'not guilty' and 'once in jeopardy.'

Peter Bogart sought and was denied a writ of prohibition. After trial by jury was waived by defendants and their counsel six counts were dismissed by the trial judge as to each of the defendants. The court trial resulted in conviction of Peter Bogart on six counts, three of grand theft violations of Penal Code, section 487(1) and three of forgery of fictitious name, violations of Penal Code, section 470. June Bogart was found guilty of nine counts, four of grand theft, violations of Penal Code, section 487(1), (two of these counts involved thefts from the Department of Employment of the State of California by fraud), four of forgery of fictitious name, violations of Penal Code, section 470, and one of forgery of fictitious endorsement, violation of Penal Code, section 470. Both defendants were found not guilty of the remaining counts of the indictment. After denial of motions for new trial, arrest of judgment and probation, defendants were sentenced to state prison for the term prescribed by law, sentences to run concurrently. This appeal followed.

On March 26, 1965, prior to the commencement of the trial, appellants petitioned for removal of the state prosecution to the United States District Court under Title 2, U.S.C. §§ 1443 and 1446 on the alleged grounds that they had been denied equal protection under the laws and could not enforce in the state courts their civil rights as guaranteed to them under the Constitution and laws of the United States.

Appellants' petitions for removal were denied by the United States District Court and orders remanding each appellant's case to the superior court and certified copies of such orders were filed with the Los Angeles County Clerk. ¹ The record does not contain any notice to the state court of any appeal in the Federal courts, but does indicate that such appeal was taken.

On April 19, 1965, the United States District Court denied a stay of the remand order. On May 10, 1965, the United States Court of Appeals, Ninth Circuit, denied a stay of all proceedings in the state court pending a hearing of the appeal in that court.

On May 28, 1965, the trial was concluded in the state court.

On August 17, 1965, the date set for judgment, appellants were granted a continuance by the trial court to September 28, 1965, to prepare affidavits for motion for new trial. They instead petitioned for a stay in the United States Supreme Court and on September 4, 1965, Associate Justice William O. Douglas of the Supreme Court of the United States ordered that the order of the district court remanding the cause to the Superior Court of the State of California, be stayed pending the timely filing of an appeal in the United States Court of Appeals for the Ninth Circuit, such stay to continue in effect upon the disposition of the appeal.

There is no record in the Superior Court files that this stay order was ever served upon the Superior Court of the State of California in and for the County of Los Angeles, although a copy was admittedly shown to the trial judge on September 28, 1965.

On October 6, 1965, the United States Court of Appeals for the Ninth Circuit issued an order restraining and enjoining the People of the State of California and the Superior Court of the State of California in and for the County of Los Angeles from giving any force or effect to the judgment or judgments of conviction entered on September 28, 1965 and from taking any further proceedings in that action until the expiration of the stay granted by the Honorable William O. Douglas, or until further order from the United States Court of Appeals. The United States Court of Appeals further ordered that the appeal be expedited.

On January 13, 1966, the order of the federal district court remanding the cause to the state court, was affirmed by the United States Court of Appeals for the Ninth Circuit. A rehearing was denied on February 21, 1966 and on October 10, 1966, the Supreme Court of the United States made an order in the case of Bogart, et ux. v. California, et al., 385 U.S. 888, 87 S.Ct. 132, 17 L.Ed.2d 117, denying certiorari and other relief.

On November 10, 1967, appellants moved in this court for an order remanding the cause to the trial court with instructions to set aside the order denying the motion for a new trial and the judgments entered by the trial court on September 28, 1965, on the grounds that at the time the trial court denied appellant's motions for new trial and entered judgment the trial court had no jurisdiction to so act, and acted without jurisdiction in view of the fact that a stay of all proceedings had been entered on September 4, 1965, by the Honorable William O. Douglas, Associate Justice of the United States Supreme Court.

On December 14, 1967, the November 10th motion was denied. On January 3, 1968, an application to reconsider was denied. On February 8, 1968, a hearing in the State Supreme Court was denied, and on May 20, 1968, certiorari was denied in Bogart v. California, 392 U.S. 298, 88 S.Ct. 2070, 20 L.Ed.2d 1116.

The appellants first urge that the court had no jurisdiction to enter the judgments or deny appellants' motions for new trial in that there was exclusive federal jurisdiction at that time. Second, appellants contend that the trial court had no jurisdiction to try appellants under state law, as the People in electing to appeal the granting of the 995 motions were estopped from appealing and prosecuting at the same time. Third, appellants urge that the trial judge committed prejudicial error and denied appellants a fair and impartial trial. Fourth, it is contended that the court erred in permitting the receipt in evidence of records in violation of sections 1094 and 2111 of the Unemployment Insurance Code of the State of California. Fifth, appellants state that the judgments are based in part on perjured evidence known to be such by the law enforcement agents who participated in the prosecution of the case. Sixth, appellants complain that the defense conducted for the appellants was a sham and they were denied their constitutional rights to appear and defend by counsel.

Counsel for appellants has commendably, professionally and wisely restricted his argument to the cited contentions of the appellants, and does not urge a detailed review of the evidence, realizing that there was conflict therein and that the determinations of fact of the trial court would be binding upon this court.

The record before us supports the findings of the trial court showing that the appellants obtained merchandise from various stores and merchants through misrepresentations and assuming of fictitious names. The prosecution showed that appellants rented an apartment in an area remote from their home under fictitious names, purchased merchandise from various stores on credit, had the same delivered to that address, and thereafter, surreptitiously removed the personal property to their home and were in possession of various articles of such personal property at the time they were arrested.

Two counts in the indictment relating to grand theft are based upon the fraudulent collection of unemployment insurance payments under fictitious names. These were both in reference to the appellant June Bogart.

The record before us shows that June Bogart obtained monies from the Department of Employment by false representations; it further shows that there was a grand theft committed by her in company with her husband upon Seibu Department Store by giving false credit information and obtaining valuable furniture on the basis of such false information; the evidence also shows that June Bogart in company with her husband was guilty of forgery of a fictitious name by using fictitious names in dealing with J. W. Robinson's Store; that June Bogart was also guilty of forgery of a fictitious name in two instances in dealing with J. W. Robinson and obtained valuable property through such misrepresentations; also June Bogart, together with Peter Bogart, was guilty of forgery of a fictitious name in credit dealings with Butler Bros. Inc., in two transactions; that grand theft under Penal Code, section 487(1) was perpetrated by the two appellants upon the May Company; and that appellant Peter Bogart was guilty of grand theft, a violation of Penal Code, section 487(1) in obtaining a washing machine from Sears, which was of a value of over $200.

It is appellants' contention that the trial court had no jurisdiction to try them under state law as the People had elected to appeal the granting of a motion under section 995 of the Penal Code. In this instance appellants rely exclusively on the case of Anderson v. Superior Court, 66 Cal.2d 863, 864, 59...