People v. Cooper

• Decision Date: 25 July 1978
• Docket Number: Cr. 30418
• Citation: 83 Cal.App.3d 121,147 Cal.Rptr. 705
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Paul Allen COOPER, Defendant and Respondent.

Page 705

147 Cal.Rptr. 705

83 Cal.App.3d 121

The PEOPLE of the State of California, Plaintiff and Appellant, v. Paul Allen COOPER, Defendant and Respondent.

Cr. 30418.

Court of Appeal, Second District, Division 5, California.

July 25, 1978.

Hearing Denied Sept. 20, 1978.

[83 Cal.App.3d 124] John K. Van De Kamp, Dist. Atty. of Los Angeles County; Harry B. Sondheim, Head, Appellate Div., Eugene D. Tavris, Deputy Dist. Attys., for plaintiff and appellant.

Kanarek & Berlin, Van Nuys, for defendant and respondent.

KAUS, Presiding Justice.

The People appeal from an order of the Superior Court setting aside pursuant to Penal Code section 995 the amended information charging defendant with forgery. (Pen. Code, § 470.)

FACTS PRELIMINARY HEARING

Brian Harvey was president of Alflex Corporation in Gardena, a manufacturer of electrical wire, cable, conduit and aluminum coil sheet. In late October or early November 1974, Harvey entered into an oral agreement with defendant, the terms of which were as follows: defendant was to be marketing manager of a New Jersey corporation which Harvey had recently acquired; defendant would be paid a salary of $2,000 a month and would get a bonus if the new venture was successful; Harvey would pay the difference between the appraised value of defendant's home and the selling price plus closing costs; Harvey would also pay for the moving expenses of defendant and his family.

Elmer Steinkuhler, marketing manager for Alflex Corporation, spoke to defendant Defendant moved to New Jersey in late 1974 or early 1975. In March 1975, Harvey decided to close down the New Jersey company because of financial difficulties. He telephoned defendant and informed him of his imminent termination. Defendant said he was disappointed since he had moved his family to the east. He requested to be permitted to handle Alflex Corporations' flexible conduit marketing in the east. Harvey told defendant that he "felt that he (defendant) wasn't really equipped to handle the marketing of that type of commodity."

about his impending move in December 1974. When defendant mentioned that Harvey was paying all of his moving expenses, Steinkuhler inquired if he had a written contract to that effect. Defendant answered, "I don't have a contract on this. I have taken his word."

In August 1975, Harvey was served with a copy of a verified complaint, filed in Los Angeles, in which defendant and his wife Linda were plaintiffs and Harvey and Alflex were named as defendants. The complaint alleged three causes of action: "Breach of Written Contract; False Representations; Breach of Third Party Beneficiary Promise in Written Contract."

The first cause of action alleged breach of a written employment contract that defendant Cooper had entered into with Harvey on November 3, 1974, in Gardena, California. The complaint further stated, "A true copy of said contract is attached hereto; marked Exhibit "A", and by reference made a part hereof." The attached copy was a three page document entitled "Contract of Employment" with the signatures of Brian L. Harvey and Paul Cooper at the end. It purported to hire defendant "for a term of five years" on certain conditions: that defendant would receive an annual salary increase of ten percent; that he would be paid a "minimum bonus of 20%" of his annual salary level; and that, because defendant's wife would have to leave her job, she would be reimbursed in an amount equal to her average salary for the months of October 1974 through January 1975 "until she commences employment at any new location." Other generous fringe benefits were provided for.

Damages prayed for in the complaint totaled $142,000 on the first cause of action, $142,000 plus $244,000 in punitive damages on the second cause of action, and $7200 on the third. Attached to the back of the complaint was a verification bearing defendant's signature in which he declared under penalty of perjury that the contents were "true of (his) own knowledge. . . ."

Harvey hired Messrs. Goldberg and Melendres of the law firm of Loeb and Loeb to represent him in the civil action brought by the Coopers. Pursuant to a stipulation between the attorneys for Harvey and the Coopers, Melendres was loaned the original purported contract of employment which was the subject of the lawsuit. Two questioned documents experts examined the contract and determined that the signature of "Brian L. Harvey" was not authentic.

Early in October 1975, Goldberg and Melendres contacted the district attorney's office and showed the contract and the reports of the questioned document experts to Investigator Robert Ewen. On October 21, 1975, during a deposition at the offices of Loeb and Loeb relating to the civil suit, Ewen seized the contract.

A questioned documents expert working for the District Attorney's office compared various handwriting exemplars supplied by defendant and Brian Harvey and came to the following conclusions:

1) That defendant had signed the name "Paul Cooper" to the contract; 2) that defendant had signed the name "Paul Cooper" to the verification of the complaint; and 3) that the signature of "Brian L. Harvey" on the contract was either a freehand copy or a tracing of the true signature of Brian Harvey most probably a tracing.

Harvey, of course, testified that the signature on the contract was not his.

The records of the Standard Alarm Company, which operated the burglar alarm systems at Alflex Corporation in Gardena, revealed

that the alarm system was turned on at 5:30 p. m. on November 1, 1974, and that the next entry to the premises was at 5:38 a. m. on November 4, 1974. There was no record of anyone entering or leaving Alflex on Sunday, November 3, 1974.

DISCUSSION

1] Venue. The superior court's order setting aside the information was based in part upon the court's inability to find any evidence that the contract was forged in the County of Los Angeles.

No direct evidence of the location where the alleged forgery took place was presented. To fill this fatal gap, the People now point to language in the verified complaint filed by defendant in which he asserted that the contract of employment was "entered into . . . at Gardena, California." This statement, the People claim, represents an admission of a party (Evid. Code § 1220) and hence is competent evidence of the locus of the forgery.

We cannot accept the People's argument. The theory of their case was that the contract, in its entirety, was a forgery and that the filing of the civil action was an uttering of that forged document. Much of the prosecution case was spent showing that no one had entered or exited the premises of Alflex Corporation in Gardena on November 3, 1974; presumably that evidence was presented to negative the possibility that the contract was entered into on that date, at that location. While we have no quarrel with the proposition that the testimony of a witness can be believed in part and disbelieved in part (see People v. Robinson (1964) 61 Cal.2d 373, 389, 38 Cal.Rptr. 890, 392 P.2d 970), the People would have us hold that the magistrate could use that rule, based on common sense, to perform an impossible mental contortion: to reject defendant's assertion that Harvey "entered into" the contract, but to accept the phrase "in Gardena" which modifies that assertion. Obviously, however, the words "in Gardena" are meaningless by themselves: they become meaningful only in association with the event asserted to have taken place in that location, and the event asserted to have taken place was not the forgery, but the making of a contract. It is patent that the allegation in the complaint was not an admission that the purported forgery took place in Gardena.

Absent evidence of the location where the forgery took place, venue is proper in the county in which the forged instrument was uttered. (See People v. Bihn (1928) 93 Cal.App. 566, 567, 269 P. 939.) Consequently, if the filing of the verified complaint, which incorporated by reference a photocopy of the allegedly forged contract, constitutes an uttering, venue would be proper in Los Angeles County.

The trial court held that the filing of the verified complaint did not constitute an uttering: ". . . I do not believe that . . . there's been an uttering . . . which means doing something with the intent that somebody by this act has been misled in believing it to be genuine and, of course, nobody has been misled up to this point." ¹

We disagree. "To constitute forgery by uttering or passing a forged instrument, as defined in section 470 of the Penal Code, three important factors are requisite: 1. It must be uttered, published, passed, or attempted to be passed, as true and genuine; 2. It must be known by the person uttering or passing it to be false, altered, forged, or counterfeited; 3. It must be with intent to prejudice, damage, or defraud some person." (People v. Smith (1894) 103 Cal. 563, 565, 37 P. 516, 517; People v. Katzman (1968) 258 Cal.App.2d 777, 790-791, 66 Cal.Rptr. 319.) It appears to us that under applicable authorities each of these elements is satisfied by the record before the trial court. In explaining our reasons for this holding, we shall attempt to deal with those of defendant's contentions which we can follow. There can be no question that the forged document is one which satisfies section 470 of the Penal Code. (People v. McKenna (1938) 11 Cal.2d 327, 332, 79 P.2d 1065.) Further if People v. Kagan (1968) 264 Cal.App.2d 648, 657-658, 70 Cal.Rptr. 732, cert. denied 394 U.S. 911, 89 S.Ct. 1027, 22 L.Ed.2d 224, is good law, it is immaterial that what was attached to the complaint in the civil action was not the forged contract itself but a photostatic copy. "Nor can it be doubted that the reproduction of such a false instrument by photocopying it results in the making of another false instrument, which reproduction, if done with intent to defraud and without authority, likewise...