People v. Bresin
| Citation | 53 Cal.Rptr. 687,245 Cal.App.2d 232 |
| Decision Date | 27 September 1966 |
| Docket Number | Cr. 11984 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Melvin BRESIN, Defendant and Appellant. |
Paul M. Posner, Los Angeles, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., Gerald H. Genard, Deputy Atty. Gen., for plaintiff and respondent.
Defendant appeals following his conviction in a jury trial of two counts of grand theft (Pen.Code § 487), two counts of forgery (Pen.Code § 470), and two counts of procuring a forged instrument to be recorded (Pen.Code § 115). The imposition of judgment was suspended and defendant was granted probation.
The charged offenses arose out of two separate incidents in which defendant, an aluminum siding salesman, secured purchasers of his employer's siding material. We state the evidence viewed (as we must) in the light most favorable to the People.
On September 24, 1964, defendant went to the home of Mr. and Mrs. Shelton. He explained to them that he was an executive with Bay City Home Builders (he was in fact a salesman for that company). He could, he informed them, have his company install aluminum siding on their home for the total price, including interest charges, of $2,850. The Sheltons told defendant that they would not be interested if it meant there would have to be a second trust deed on their home. Mr. Shelton testified:
'A Well, when we was talkin', one of the first things I say, I say, 'There be no trust deed on my property.' That was one of--
'Q Do you recall what it was that you were discussing that made you raise that question?
'A Well, during this time was were discussin' the price and the total price and the down payment, and how I would pay this money for this job. So that's why I wanted to inquire that point before we go any further. Before any paper work was done at all, I want to get that well understood I would not give a trust deed, second trust deed on my house.'
Defendant assured the Sheltons that it would not be necessary for them to sign a trust deed. He then asked to see the deed to their property, explaining that he wanted to make sure they were buying the property on which the siding would be installed. The Sheltons were also told by defendant that they would get a twenty-year written guarantee on the siding and in addition a year's supply of aluminum foil. A contract was then signed by Mr. and Mrs. Shelton.
After the siding was installed the next day, defendant came to the Sheltons' home and presented them with a second contract. This contract contained a total price figure of $4,585.65 for the job completed. After arguing at length that this was not the price quoted by defendant, the Sheltons signed the second contract. Mr. Shelton testified:
'Q When he asked you to sign it, what did you tell him?
The Sheltons as it turned out had, in fact, also signed a second trust deed on their property, which was filed with the county recorder. Their signatures were witnessed by defendant's signature. They testified that they did not recall signing it and never saw it until the district attorney showed it to them. They had not read the documents they signed. They would not have purchased the siding if they had known their obligation was to be secured by a trust deed. They never received any written guarantee on the siding and only a few packages of aluminum foil were delivered.
Mr. and Mrs. Jackson were also contacted by defendant during the month of September 1964. The came to their home and told them that he was selling aluminum siding with a lifetime guarantee. He said that he picked their home because it was a nice location and would be a good advertisement for his company. He indicated that pictures would be taken of the house with the siding installed and would be seen in a magazine. Mr. Jackson told defendant that he was mainly interested in having an extra room built onto his home because he had thirteen children and only three bedrooms. Defendant told the Jacksons that if they would agree to purchase the siding he would add the extra room as part of the deal. The total cost would be $2,850, and payments would be about $70 a month. They signed a printed form with blank spaces which defendant said was a contract. Mrs. Jackson told defendant she did not want the siding if it meant an additional encumbrance on their house. Defendant assured them that there would be no encumbrance. He stated that he would take their deed with him to make sure the county records indicated that they were the legal owners.
Defendant brought the deed back a few days later. He told the Jacksons that he had 'talked it over', and had concluded that $70 a month payments would be 'pretty high' for them to pay and that it probably would be better if they did not add the extra room. That way, the monthly payments could be brought down to about $50. Instead, he said that he would bring them 'enough material to frame the room' and they could do it themselves. The Jacksons then signed a contract which contained the provision that they pay $54.59 a month for 84 months. The total price of $4,585.56 was not computed and listed on the contract. Neither Mr. or Mrs. Jackson recalled signing a trust deed. Mr. Jackson testified that he saw the trust deed for the first time when it was shown to him in the district attorney's office. They were not told they would have to sign one. As was the case with the Sheltons a trust deed was in fact signed by the Jacksons with defendant again being the subscribing witness. Mr. and Mrs. Jackson would not have entered into the contract if they had known there would be a trust deed. Nor would they have entered into the contract if they hd realized the price was $4,585.56 instead of what they had agreed upon, namely, $2,850. They did not receive the promised material to frame the extra room. They would not have agreed to sign the contract if they had known they would not receive the framing material.
Defendant first contends there is insufficient evidence to support the judgment. We have concluded this position lacks merit, that the jury's determination that defendant was guilty of each of the charges brought is supported by substantial evidence.
As to the two grand theft counts the evidence showed that defendant committed the offense in each instance by inducing the victims to part with value. In a nutshell it established that he told both the Sheltons and the Jacksons that no trust deed would be required as part of their respective contracts; trust deeds were in fact required; by this deception defendant induced the Jacksons and the Sheltons to become obligated to pay substantial sums of money. That the defendant harbored the requisite intent to defraud could most certainly be inferred. The testimony of the Jacksons and the Sheltons plainly establishes that they would not have entered into the contracts were it not for defendant's false representations. As the evidence above recited indicates, other false representations were shown to have been made by defendant which the jury could also have found constitute elements of grand theft by false pretenses.
Defendant argues that since the alleged victims testified they could read, their carelessness in failing to read the documents presented to them before signing absolved him from any criminal liability. The rule however is clear that '* * * (People v. Gilliam, 141 Cal.App.2d 749, 752, 297 P.2d 468, 470.)
It is further maintained that the testimony of the alleged victims that they did not know they were signing trust deeds was so discredited that it was utterly unbelievable and therefore constituted no evidence at all. To support such assertion defendant points chiefly to the testimony of the People's witnesses that although they could read they failed to observe that they were signing trust deeds. Defendant also notes there was evidence that Mrs. Shelton and Mr. Jackson each wrote letters at defendant's direction, after the contracts were consummated, which referred to trust deeds; and further, that they made no complaint until contacted by the police over six months later. The jury was presented with the problem of judging the...
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