People v. Dorsey

• Decision Date: 16 December 1974
• Docket Number: No. 1662,1662
• Citation: 118 Cal.Rptr. 362,43 Cal.App.3d 953
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerome Wallace DORSEY, Defendant and Appellant.

Page 362

118 Cal.Rptr. 362

43 Cal.App.3d 953

The PEOPLE, Plaintiff and Respondent, v. Jerome Wallace DORSEY, Defendant and Appellant.

No. 1662.

Court of Appeal, Fifth District, California.

Dec. 16, 1974.

As Modified Dec. 30, 1974.

[43 Cal.App.3d 956] James L. Rankin, Santa Cruz, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Sacramento, for plaintiff and respondent.

OPINION

FRANSON, Associate Justice.

Appeal from judgments of conviction of two counts of violation of Penal Code section 476a (insufficient fund checks). Walter Osborn, Jr., Judge. Affirmed.

Because appellant does not challenge the sufficiency of the evidence to support the convictions, we will recite only those facts necessary to the issues raised.

In January of 1973, appellant made two purchases at the Sears store near Bakers-field, paying for both of the purchases by personal check. The first purchase of a set of radial tires was made on January 27, 1973, through a Sears clerk named Miss Look, who testified that appellant wrote a check in the amount of $314.22 in her presence. She said appellant did not say anything to her about not having any credit arrangements with his bank. Miss Look identified a check, People's Exhibit 1, as the check appellant gave her, and she identified appellant as the man who gave her the check.

The second purchase from Sears occurred the following day, January 28, 1973, when appellant bought an electric typewriter from a Sears clerk named Linda Adams. Miss Adams testified that appellant gave her a personal check for $263.45. She identified People's Exhibit 2 as the check appellant gave her. Miss Adams said that appellant said nothing to her about the possibility that there might be insufficient funds in his account to cover the check.

Evidence of appellant passing three other bad checks at the Sears store between November 28, 1972, and December 16, 1972, was also introduced.

Mr. Bryant, the assistant security manager at the Sears store who had the responsibility of following up on bad checks passed to Sears, stated that he was aware of several problem checks passed at Sears by appellant. Two of these checks, People's Exhibit Nos. 1 and 2, upon which Counts I and II of the information were based, were returned, stamped 'account closed.' The other checks were returned, stamped 'not sufficient funds.' Bryant also reported receiving a letter from appellant about December 26, 1972, in which appellant apologized about the bad checks, said they were the result of a domestic problem, said he also had about a dozen checks out to other stores, and said he would make partial payments until everyone was satisfied. He also stated in the letter, 'I guess I could go to jail. That is your prerogative; however, then nobody would get paid.' Bryant said that in accordance with Sears' normal procedure, a letter and a mailgram should have been sent to appellant asking him to come in and make arrangements to take care of his checks, but he did not know of his own knowledge whether or not this was actually done.

The Sears security manager, Thomas S. Knight, testified that he had had a conversation with appellant wherein he told appellant he would have to go to the police with the checks unless appellant covered them immediately. Appellant did not cover the checks and Knight went to the police about two weeks after this conversation.

Harry Rubin, the operator of a pawn shop in Bakersfield, testified that appellant pawned his newly purchased Sears electric typewriter at Rubin's pawn shop on February 12, 1973, for $25.

Lawrence Putnam, the operations officer of the American National Bank where appellant had his joint checking account with his wife, testified that he was the custodian of the bank's records and that all the records involved were kept in the normal course of business. Testifying from his records, Putnam stated that appellant and his wife opened their checking account on October 3, 1972, and that bank records indicated that the bank had closed the account on January 18, 1973, at which time it was overdrawn $150.18. Putnam stated that the bank closed the account because of numerous insufficient fund items presented and because no deposits had been made after December 4, 1972.

According to Putnam, it was the bank's policy to mail a notice to the holders of the account whenever the bank closed an account but he could not state from his own knowledge that such a letter was sent to appellant. Putnam testified that the bank's records showed that some 46 items went through the bank's computer on appellant's account between November 30, 1972, and January 18, 1973, that were rejected due to insufficient funds, but that this did not necessarily mean 46 separate overdrawn checks because individual checks might be put through several times before being marked in such a way that the computer would not accept them.

Mr. Putnam also testified that in normal practice an account holder would be notified by mail each time a check was presented on his account for which there were insufficient funds to cover the check. He could not say of his own knowledge, however, that this had been done with regard to appellant's account. During cross-examination, Mr. Putnam identified an American National Bank form letter addressed to appellant and dated January 18, 1973, the date the bank closed his account, as being a standard bank form letter. (Defendant's Exhibit A.) The letter stated that appellant's account was overdrawn in the amount of $150.18 and requested that he check his records and, if the bank was correct, promptly make a deposit to cover the overdraft. The letter made no mention of closing the account. Mr. Putnam could not explain the sending of Defendant's Exhibit A to appellant, and admitted that the postage-meter stamp number on the envelope of Defendant's Exhibit A was the bank's postagemeter number.

Bakersfield Police Detective Strellich testified that he arrested appellant for the crimes charged in this action on February 16, 1973, and that after advising appellant of his constitutional rights, he discussed the crime with him. Strellich said he showed appellant the two Sears checks upon which this case is based and asked appellant if he had not issued the checks with the intent to defraud Sears, knowing that he did not have sufficient funds in his account to cover them. Appellant's reply, according to Strellich, was, 'yes.' Strellich testified further that during his postarrest conference with appellant, he showed appellant the letter to Sears apologizing for the several 'insufficient funds' checks; appellant admitted having written it and said he had a number of other checks out, primarily at liquor stores.

Kern County Deputy Sheriff Nagel testified that while standing guard over appellant and several other prisoners who were sitting in a courtroom awaiting their pretrial hearings, he overheard appellant say to a fellow prisoner, 'I'm guilty as hell but I'm not going to make any deals. They're going to have to prove it. They're going to have to work for it.' Nagel said he noted appellant's name when he was called for his pretrial hearing and then wrote a note relating what he had heard and gave it to a deputy district attorney that same day.

DISCUSSION

Appellant contends that it was prejudicial error to receive the testimony of Mr. Putnam, the operations officer of the American National Bank, concerning the bank's records of appellant's account. He first argues that Putnam's testimony was inadmissible because the records from which he testified were never offered into evidence so that his testimony violated the best-evidence rule. (Evid.Code, § 1500.) However, no objection was made that the testimony violated the best-evidence rule; the only objection being that the testimony was hearsay because an insufficient foundation had been laid for the admission of the testimony under the business records exception to the hearsay rule. (Evid.Code, § 1271.)

The failure to state the specific ground upon which an objection rests waives appellate review of the objection. (Evid.Code, § 353, subd. (a).) Appellant now may not complain that the testimony violated the best-evidence rule.

Appellant's contention that no proper foundation was laid as required under the business records exception ¹ to the hearsay rule is without merit. Putnam brought to court the following records: appellant's signature card, the monthly statements from the date the account was opened until it was closed, and copies of several over-draft of 'NSF' notices that presumably were mailed by the bank to appellant each time an overdraft or NSF check had been presented for payment. Putnam testified that these records were kept by the bank in the regular course of its business. When he attempted to testify as to the contents of the records, appellant's trial counsel objected on the grounds that his testimony would be 'hearsay.' Thereupon, the prosecutor again established that the records were kept by the bank in the regular course of its business; that Putnam was the custodian of the records; that a part of his duties 'is keeping the open as well as the closed records of the bank.' Over a continuing hearsay objection because of 'no foundation,' the trial court permitted Putnam to testify from the records.

Again, we observe that, before an appellate court will give consideration to an objection to evidence, the Specific ground for its exclusion must have been clearly stated to the trial court. (Evid.Code, § 353, subd. (a).) This is particularly true where, as in the instant case, the objection easily could have been cured by the party offering the testimony if the specific reason for the objection had been stated to the trial court. (See People v. Fowzer, 127 Cal.App.2d 742, 746--747, 274 P.2d 471.) The only apparent defect in the foundation required by Evidence Code section 1271 was in the failure of Putnam to testify as to the mode and time of...