People v. Bratis, Cr. 16033

• Court: California Court of Appeals
• Writing for the Court: SIMS
• Citation: 141 Cal.Rptr. 45,73 Cal.App.3d 751
• Decision Date: 29 September 1977
• Docket Number: Cr. 16033
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. John BRATIS, Peter Bratis, and Dennis Anthony Cambitsis, Defendants and Appellants.

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141 Cal.Rptr. 45 73 Cal.App.3d 751 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
John BRATIS, Peter Bratis, and Dennis Anthony Cambitsis, Defendants and Appellants. Cr. 16033. Court of Appeal, First District, Division 1, California. Sept. 29, 1977.
Hearing Denied Nov. 25, 1977.

[73 Cal.App.3d 754]

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Harry Schenk, Los Angeles, George T. Davis, San Francisco, Joseph C. Morehead, San Francisco, for appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P.

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O'Brien, Asst. Atty. Gen., William D. Stein, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for respondent.

[73 Cal.App.3d 755] SIMS, Acting Presiding Justice.

The three defendants have appealed from orders placing them on probation following their conviction of conspiracy, in violation of section 182 of the Penal Code, to violate sections 19666 and 19667 of the Business and Professions Code, which respectively prohibit and punish as misdemeanors the alteration or counterfeiting of any parimutuel ticket, and the possession of any altered, forged or counterfeit parimutuel ticket. They were also each found guilty of both substantive offenses, but imposition of sentence was suspended on those counts.

In identical briefs the defendants John Bratis and Dennis Cambitsis contend that sections 19666 and 19667 of the Business and Professions Code are void for vagueness because they fail to provide adequate notice of prohibited conduct, and that the failure of the jury to return a general verdict on the conspiracy charge deprived the court of jurisdiction to enter judgments of conviction (orders admitting each defendant to probation) on that charge, and that the failure of the jury to render a clear and precise verdict rendered such convictions improper. The defendant Peter Bratis advances similar contentions; and the defendant John Bratis alone additionally contends that the evidence is insufficient to sustain his conviction on any of the charges. A review of the record and the applicable law reflects that the statute and charges are framed with sufficient certainty; that the court properly found that the jury had convicted the defendants of conspiracy; and that the evidence is sufficient to sustain the conviction of John Bratis. The orders admitting the defendants to probation must be affirmed.

The testimony introduced by the prosecution, which was apparently accepted by the jury, showed that some nine months before the events giving rise to their arrest, the defendant Peter Bratis and one Al Livas, who was subsequently arrested with him, ¹ arranged with a firm to secure some rubber stamps which would reproduce numbers and words duplicating cutouts which they produced as exemplars. The cutouts were recognized as being numbers off of parimutuel tickets. An employee of the manufacturer notified the Federal Bureau of Investigation of what had been requested, and, at its request, kept the bureau advised of developments. The order was made in Bratis' name, although Livas conducted much of the negotiations. The testimony of two clerks of the manufacturer conflicted as to whether Bratis or Livas picked up the [73 Cal.App.3d 756] rubber stamps in July 1975, but Livas apparently picked up a second order in August.

On January 20, 1976, Peter Bratis, whose picture had been circulated by law enforcement officials, apparently as a result of the tip from the rubber stamp company, was recognized at the Bay Meadows racetrack. John Bratis was with him. The following day the two Bratis brothers and Cambitsis rented a van from Hertz Rent-A-Truck in South San Francisco, and secured some disposable furniture pads which were placed over the windows of the van.

Later that day John Bratis and Cambitsis were observed together at the racetrack. The former was observed as he picked up discarded parimutuel tickets. Later John was seen as he left the parked van and approached and met Cambitsis. Subsequently, after a photo finish of the fifth race John Bratis was observed going through some bushes. He yelled in the direction of the yellow van and received apparent recognition from Cambitsis, who leaned out the window of the van. John was taken into custody, and officers went to the van. There they found Peter Bratis, Cambitsis and Livas, altered and genuine parimutuel tickets, and materials for altering the tickets.

The three defendants testified and denied any complicity in connection with the alteration

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of the tickets. They all attributed any wrongdoing solely to Livas. I

Business and Professions Code section 19666 reads: "No person shall alter or counterfeit, or attempt to alter or counterfeit, any parimutuel ticket."

Section 19667 provides: "No person shall knowingly have in his possession any altered, forged, or counterfeit parimutuel ticket."

In Connally v. General Const. Co. (1926) 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, the court enunciated the following requirement of certainty for due process of law. "That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either forbids [73 Cal.App.3d 757] or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. (Citations.)" (269 U.S. at p. 391, 46 S.Ct. at p. 127; see also Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110; United States v. National Dairy Corp. (1963) 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561; McKinney v. Parsons (5th Cir. 1975) 513 F.2d 264, 269-270 (cert. den. 423 U.S. 960, 96 S.Ct. 376, 46 L.Ed.2d 289); Bowland v. Municipal Court (1976) 18 Cal.3d 479, 491-492, 134 Cal.Rptr. 630, 556 P.2d 1081; In re Bell (1942) 19 Cal.2d 488, 496, 122 P.2d 22; and 1 Witkin, Cal. Crimes (1963) § 19, pp. 23-24).

Here defendants contend the statutes are unconstitutionally vague because they fail to set forth the standards to be used in determining the nature or degree of alteration necessary to constitute the offense, because they fail to require that the alteration would have to materially affect the rights of the issuer and alterer, and because they fail to require that the alteration be made with the intent to defraud.

To alter has been judicially defined to mean modifying something without changing it into something else. (See Priest v. Housing Authority (1969) 275 Cal.App.2d 751, 756, 80 Cal.Rptr. 145 (construing Lab. Code, § 1720).) It is established that an alteration of a negotiable instrument means a physical alteration of the instrument in such a manner as to mutually affect the rights of the parties. (Borden v. Berg (1965) 232 Cal.App.2d 169, 172, 42 Cal.Rptr. 664.) As used in connection with the forgery statutes in the Penal Code (§ 470 et seq.), it is recognized that alteration is within the definition of forgery and is precise enough to give adequate notice to persons of ordinary intelligence. (See 1 Witkin, op. cit., § 503, p. 458.) Although the sections involved here are found in another code, the juxtaposition of the words "counterfeit" in both sections and the word "forged" in section 19667 makes it clear that the alteration referred to and prohibited is an alteration with intent to defraud, and not a mere innocent mutilation of the parimutuel ticket.

"It is elementary that, if possible, statutes will be so construed as to avoid absurd applications and to uphold their validity. (Citation.) A statute 'will not be given an interpretation in conflict with its clear purpose, and . . . general words used therein will be given a restricted meaning when reason and justice require it, rather than a literal meaning which would lead to an unjust and absurd consequence.' (People v. [73 Cal.App.3d 758] Kelley (1937), 27 Cal.App.2d Supp. 771, 774, 70 P.2d 276; (citation).)" (In re Cregler (1961) 56 Cal.2d 308, 312, 14 Cal.Rptr. 289, 291-292, 363 P.2d 305, 307-308, see also, Bowland v. Municipal Court, supra, 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081; In re Huddleson (1964) 229 Cal.App.2d 618, 621-625, 40 Cal.Rptr. 581; and People v. Buese (1963) 220 Cal.App.2d 802, 804-808, 34 Cal.Rptr. 102; and 1 Witkin,

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op. cit. supra, § 25, p. 28, and 1975 Supp., p. 29.) ²

Furthermore in this case it is clear that the jury was instructed that it had to find the specific intent to defraud and, as well, that the alteration was material. "The rule is well established, however, that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself and that a court will not consider every conceivable situation which might arise under the language of the statute and will not consider the question of constitutionality with reference to hypothetical situations. (Citations.) Petitioner has not shown that the statute is being invoked against him in the aspects or under the circumstances which he suggests, and hence may not be heard to complain." (In re Cregler, supra, 56 Cal.2d 308, 313, 14 Cal.Rptr. 289, 292, 363 P.2d 305, 308; see also Bowland v. Municipal Court, supra, 18 Cal.3d 479, 492, 134 Cal.Rptr. 630, 556 P.2d 1081; People v. Rehman (1967) 253 Cal.App.2d 119, 154, 61 Cal.Rptr. 65, (cert. den. 390 U.S. 947, 88 S.Ct. 1033, 19 L.Ed.2d 1137); and People v. Buese, supra, 220 Cal.App.2d 802, 806, 34 Cal.Rptr. 102.) Defendants are not in a position to complain that the statutes might be applied to a person making an immaterial alteration without any intent to defraud. We consider that when read in their entirety the statutes preclude such a construction. They are sufficiently definite in defining a criminal offense and were...