People v. Cohen

• Citation: 90 Cal.Rptr. 612,12 Cal.App.3d 298
• Decision Date: 26 October 1970
• Docket Number: Cr. 15353
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Theodore Abraham COHEN and Susan Cohen, Defendants and Appellants.

Page 612

90 Cal.Rptr. 612

12 Cal.App.3d 298

The PEOPLE, Plaintiff and Respondent, v. Theodore Abraham COHEN and Susan Cohen, Defendants and Appellants.

Cr. 15353.

Court of Appeal, Second District, Division 1, California.

Oct. 26, 1970.

Rehearing Denied Nov. 24, 1970.

Hearing Denied Jan. 14, 1971.

[12 Cal.App.3d 304] Theodore A. Cohen in pro per.

Howard Meyerson, James H. Davis, Los Angeles, and Richard C. Voorhies, for appellant Susan Cohen.

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

THOMPSON, Associate Justice.

Theodore A. Cohen appeals from a conviction of: (1) conspiracy to commit grand theft and forgery and to obtain money by false pretenses; and (2) nine counts of grant theft. Susan Cohen appeals from a conviction of one count of grand theft. We modify the judgment to comply with Penal Code, section 654 and to correct a clerical error, and affirm the judgment as modified as to Theodore A. Cohen. The judgment as to Susan Cohen is reversed.

Facts of Offense

Stated in the light most favorable to the judgment, the record discloses the following. On May 4, 1964, appellant Theodore Cohen, an attorney-at-law, met with Jacob Fishter, a field claims representative for State Farm Automobile Insurance Group, to discuss the claim of Cohen's clients against State Farm. In order to support Cohen's claim to a settlement of $3,000, Fishter prepared a statement of a fictitious eyewitness purporting to establish the liability of State Farm's insured. Thedore Cohen obtained the forged signature 'Martha Ruggles' upon the statement. Fishter, pursuant to his authority, prepared a $3,000 draft payable to Paula and Reuben Goldstein (Mr. Cohen's clients) and to Theodore Cohen. He delivered the draft to Cohen who said that he 'would take care of Fishter.'

A few days later, Mr. Cohen met Fishter for lunch at the La Brea Inn and gave him four $100 bills. At that meeting, and at another about a week later, they agreed that when Fishter had 'claims with possibilities' Cohen would supply fictitious medical reports and statements, Fishter would issue State Farm drafts in payment of claims in favor of fictitious claimants and deliver them to Cohen, and Cohen would cash the drafts through his bank account. Cohen and Fishter agreed 'to split 50-50.'

On eight separate occasions, Theodore Cohen and Fishter implemented the plan and presented claims of fictitious claimants. On each occasion, Fishter issued a State Farm draft which Cohen cashed. On each occasion, they shared in the proceeds of the fraudulently obtained funds. The drafts ranged in amount from a low of $412.50 to a high of $2,250. The larger drafts were payable to the fictitious client and 'Theodore Cohen, his attorney.' The smaller drafts were payable to the fictitious client alone. On a ninth occasion, Fishter and Cohen prepared a fictitious claim in the name of Susan Cooper, Mrs. Susan Cohen's maiden name. The claim sought damages for purported injuries suffered in an accident at Dodger Stadium in which Mrs. Cohen had not been a participant. False medical reports were prepared by Mr. Cohen and a false report of the accident was prepared by Fishter. Susan Cohen signed the claim. Fishter prepared a draft in the amount of $475 in payment of the false claim and gave it to Mrs. Cohen who cashed it. Fishter received one-half of the face ammount of the draft.

Issues on Appeal

Appellants' opening brief contains 107 ¹ contentions. We discuss those worthy of extended treatment in the body of this opinion and dispose of appellants' other contentions, eliminating duplication, in the appendix to it.

Appellants' contentions include the following: (1) They attack the validity of the composition of the grand jury which returned the indictment upon which the prosecution of the case at bench is based; (2) Theodore Cohen contends that the court erred in permitting him to represent himself pro. per.; (3) Susan Cohen contends that the trial court erred in permitting Theodore Cohen to represent her; (4) They contend that their conduct is proscribed by Insurance Code, section 556 and that it is

therefore not punishable as grant theft or conspiracy to commit grand theft; (5) They contend that the court erred in ruling on their motions re discovery and in quashing a subpena duces tecum; (6) They contend that the trial court erred in denying defense motions for continuance; (7) Theodore Cohen contends that the court improperly convicted him of conspiracy while [12 Cal.App.3d 306] acquitting those charged as his coconspirators; (8) Theodore Cohen contends that the judgment is in error because it is contrary to the conclusion announced by the court and because it imposes double punishment contrary to Penal Code, section 654.

Composition of Grand Jury

Appellants contend that the grand jury which returned the indictment which is the basis of the prosecution against them was illegally constituted. They argue that: (1) Penal Code, section 911 imposes a religious test for qualification of grand jurors; (2) The exclusion of lawyers, physicians, and lawyers' wives from the grand jury denied appellants representation upon the grand jury of persons of their class; (3) Penal Code, section 897, which states the qualifications of grand jurors, is unconstitutionally vague and ambiguous; (4) Rule 29 of the Los Angeles Superior Court dealing with the selection of grand jurors in that court is contrary to state law; and (5) The process of selection of the grand jurors excluded an identifiable element of the community. We conclude that the record and law do not support the contention.

Religious Test. Penal Code, section 911 states: 'The following oath shall be taken by each mumber of the grand jury: 'I will support the Constitution of the United States and of the State of California * * *, so help me God. '' Appellants argue that section 911 in effect imposes a requirement of belief in God as a prerequisite for service on a grand jury and thus violates the First Amendment of the United States Constitution.

We do not so construe Penal Code, section 911. The provisions of section 911 must be read in conjunction with Code of Civil Procedure, section 2096 which states: 'When a person is sworn who believes in any other than the Christian religion he may be sworn according to the peculiar ceremonies of his religion if there be any such.' An atheist or agnostic 'believes in any other than the Christian religion.' Code of Civil Procedure, section 2096 thus excuses the nondeist from affirming a belief in God as a prerequisite to service on a grand jury.

Appellants' argument must also fail by reason of the record before us. Unconstitutionality of the grand jurors' oath has no effect on appellants' rights unless the phrase 'so help me God' in the oath as worded in Penal Code, section 911 barred some person from serving on the grand jury. Appellants' contention that the questioned phrase is unconstitutional is not accompanied by a showing that it barred anyone from grand jury service. To the contrary from the record it is equally possible to conclude that persons were permitted to serve on the grand jury without expressing the challenged phrase.

It is conceivable that the oath stated in Penal Code, section 911 might be applied in practice to impose a religious test which might be unconstitutional. We do no reach that problem on the record of the case at bench. There is no factual showing that Penal Code, section 911 is so applied.

Exclusion of lawyers, physicians, and lawyers' wives. Appellants contend that the grand jury which indicted them was unconstitutionally formed because lawyers, physicians, and lawyers' wives were excluded from it. Appellants Theodore and Susan Cohen note that they are, respectively, a lawyer and a lawyer's wife and that their nonappealing codefendant is a physician. They base their argument that persons of a like status were excluded from the grand jury upon Penal Code, sections Appellants' contention is unsupported by the record in one respect. While Code of Civil Procedure, section 200 exempts attorneys-at-law and practicing physicians from service, nothing in that section exempts the wives of lawyers. Neither does Rule 29 of the Los Angeles Superior Court, which is the only other basis of exclusion upon which appellants rely. At the time of selection of the grand jury which indicted appellants, Rule 29(b) provided as follows: 'Spouses of judges and commissioners of the Superior Court and the Municipal Court and attorneys known to be in active practice shall not be nominated for Grand Jury service.' The rule is undoubtedly ambiguous. It can be construed as referring to two classes of persons, one consisting of spouses of judges and commissioners and the other of attorneys known to be in active practice. It may also be construed as referring to spouses of judges, commissioners, and attorneys. We conclude that the grammatical structure of the rule indicates that the former meaning is the one intended. Otherwise the word 'and' used as a conjunction between Superior Court and Municipal Court is awkward surplusage. Moreover, Rule 29(b), to the extent that it purported to limit the discretion of the Superior Court judges of Los Angeles County in selecting grand jurors to an extent not specified by state law, cannot be construed as mandatory in its limitation. (People v. Teitelbaum, 163 Cal.App.2d 184, 329 P.2d 157, hearing denied in Supreme Court.) Los Angeles Superior Court Rule 29(b) thus did not by its terms exclude spouses of lawyers from service on the grand jury. The record contains no other evidence purporting to establish that they or any other persons, except attorneys-at-law, physicians, and spouses of judges and commissioners, were excluded.

894 and 897 which exempt from the class eligible for grand jury service persons specified in Code of Civil Procedure, sections 200--202,...