People v. Dubrin

• Decision Date: 08 March 1965
• Docket Number: Cr. 9425
• Citation: 43 Cal.Rptr. 60,232 Cal.App.2d 674
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Stanley DUBRIN, Defendant and Appellant.

Page 60

43 Cal.Rptr. 60

232 Cal.App.2d 674

The PEOPLE, Plaintiff and Respondent, v. Stanley DUBRIN, Defendant and Appellant.

Cr. 9425.

District Court of Appeal, Second District, Division 3, California.

March 8, 1965.

Hearing Denied May 12, 1965.

Hertzberg, Geretz & Leveton, Harrison W. Hertzberg, Los Angeles, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

NOURSE, Justice pro tem.*

Appellant appeals from a conviction of violation of section 487, subdivision 1 of the Penal Code. He contends that the evidence is insufficient to sustain the verdict and judgment.

While the transactions involved are quite complicated there was substantial evidence to establish the following facts: In September, 1957 appellant, through his agent Kassab, acquired a certain piece of real property, hereinafter called the Dumetz property, from a man and wife by the name of Garrison. At that time the property was subject to a trust deed for the benefit of the Bank of America securing a note in the principal amount of $14,400 which Kassab, in writing, assumed. As a part of the transaction by which Kassab secured title she executed a note in favor of the Garrisons for $2,250 secured by a purchase money deed of trust. Appellant knew of these transactions. Prior to December, 1961 the property became subject to a number of attachments against Kassab and the lien of judgments against Kassab. In December, 1961 the Garrisons commenced foreclosure proceedings under the terms of the trust deed given them by Kassab. Appellant, in order to wipe out the attachment and judgment liens against Kassab, induced one Simpson to purchase the Dumetz property at the trustee's sale under the second deed of trust with the understanding that appellant would have the option to purchase the property from Simpson in an amount equal to the amount paid by Simpson plus certain sums for his services. Simpson bid in the property at the trustee's sale. In February, 1962 appellant, through an agent, entered into an escrow to sell the Dumetz property to one Lathan and the escrow holder demanded that the Bank of America deposit a reconveyance of its first trust deed into escrow. In response to this demand the Bank of America placed its reconveyance with the Title Insurance and Trust Company with instructions to record it when it had received for the benefit of the Bank of America the balance due it on its $14,400 note and deed of trust. This escrow was not consummated but the Title Insurance and Trust Company retained in its possession the above mentioned reconveyance. In June, 1962 Simpson executed his note in favor of one McElhose in the sum of $4,500 and executed a deed of trust purporting to secure this note (this was a fictitious transaction inasmuch as while McElhose gave Simpson his check for $4,500 Simpson simultaneously gave MeElhose a check for the same amount which was to be held by McElhose). Simpson caused this trust deed to be recorded and ordered from the Title Insurance and Trust Company a loan policy of title insurance. In his instructions to the Title Insurance and Trust Company relative to the policy to be issued in the name of McElhose, Simpson directed that the trust deed signed by him, and which he recorded, be recorded by the Title Company. Through error the Title Company recorded the reconveyance of the Bank of America's deed of trust and issued its policy showing the $4,500 deed of trust to be a first lien. Simpson testified that he notified the Title Company of its error but the officers of the Title Company, while admitting that Simpson told them they had made an error, stated that he did not specify what the error was. About June 20, 1962 appellant caused to be paid to Simpson the amount of his demand for the monies expended by him in the purchase at the trustee's sale of the Dumetz property and and for the services he had rendered. At this time appellant was told of the error by the Title Insurance and Trust Company and signed an instrument by the terms of which he expressly acknowledged that the property was subject to a first trust deed of $14,400.

At this time appellant directed Simpson to execute a deed to Las Vegas General Enterprises, Inc., a corporation controlled by appellant, hereinafter called 'Las Vegas.' Simpson followed the directions and also caused McElhose to assign the $4,500 note and trust deed to appellant. On June 21, 1962 Las Vegas, at the direction of appellant, entered into an escrow with one Finley through which was to be consummated the sale of the property to Finley for the sum of $22,500. The escrow instructions made no mention of the Bank of America's deed of trust nor did the grant deed placed in the escrow by the seller. The parties to the escrow agreed 'that the down payment shall be $3,250.00 the First Trust Deed shall be $16,000.00 and the Seller agrees to accept $3,250.00 Second Trust Deed.' Finley arranged a loan of $16,000 from a building and loan company to be secured by a first deed of trust. The building and loan company deposited the net proceeds of this loan into escrow. Finley delivered to appellant's secretary the sum of $3,250 in cash and she gave him her check for a like amount which Finley deposited into escrow together with his note for $3,250 and a deed of trust securing the same. Neither Finley nor the building and loan company was told of and did not know of the Bank of America's deed of trust and the Bank of America was not advised of the escrow. The escrow closed on July 10, 1962 and the escrow delivered to appellant a check payable to Las Vegas for the sum of $18,620.97. Appellant gave the check to his secretary and instructed her to procure a cashier's check for $9,250 payable to Fidelity Bank and Hal Gordon and to deposit the balance to the account of Las Vegas. All the money deposited to the Las Vegas account with the exception of $134.69 was withdrawn within two days.

Title Insurance and Trust Company paid Bank of America the amount then due it on the note of $14,400 which had been executed by the Garrisons and on the 25th day of July, 1962 brought suit against appellant. Appellant employed an attorney, one Murray Chotiner, to represent him in this matter. This attorney contacted the attorneys and officers of the Title Insurance and Trust Company. He was called as a witness on behalf of the appellant and appellant's counsel attempted to elicit from him negotiations and conversations between himself and the agents of the Title Insurance and Trust Company but in so doing stated that appellant was not waiving the attorney-client privilege. Objections to this evidence were sustained on the grounds that the questions asked called for hearsay and that the testimony sought to be elicited was irrelevant. Appellant while still asserting the privilege then offered to prove by the witness that he had offered on behalf of the appellant the sum of $5,000 in cash and the balance in installments with security for the payment of such installments. Appellant testified that he had employed this attorney and instructed him to make arrangements to repay the funds and that he had never intended to permanently deprive any one of any money. He further testified that he knew when the escrow closed that he had received a windfall and that until the action was brought against him by the Title Insurance and Trust Company he had made no attempt to return the windfall and that he...