People v. Fork, Cr. 4433

• Court: California Court of Appeals
• Writing for the Court: MOLINARI; SULLIVAN, P. J., and SIMS
• Citation: 233 Cal.App.2d 725,43 Cal.Rptr. 804
• Parties: PEOPLE of the State of Callfornia, Plaintiff and Respondent, v. Quincy Leon FORK, Defendant and Appellant.
• Docket Number: Cr. 4433
• Decision Date: 21 April 1965

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43 Cal.Rptr. 804 233 Cal.App.2d 725 PEOPLE of the State of Callfornia, Plaintiff and Respondent,
v.
Quincy Leon FORK, Defendant and Appellant. Cr. 4433. District Court of Appeal, First District, Division 1, California. April 21, 1965.
Hearing Denied June 16, 1965.

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[233 Cal.App.2d 727] Andrew P. Smirnoff, San Francisco, for appellant (under appointment of District Court of Appeal).

Stanley Mosk, Atty. Gen., of State of California, Edward P. O'Brien, Derald E. Granberg, Deputy Attys. Gen., San Francisco, for respondent.

MOLINARI, Justice.

Defendant appeals from the judgment of conviction after a jury verdict finding him guilty of forgery (in violation of Pen.Code, § 470). ¹ The jury also found to be true the allegation in the information as to a prior felony conviction, defendant having denied this allegation.

Questions Presented

1. Was the evidence sufficient to sustain the conviction?

2. Did the trial court err in ruling that defendant's prior conviction was a felony rather than a misdemeanor, thus allowing the jury to consider it?

[233 Cal.App.2d 728] 3. Was the testimony of the police officers as to certain statements which defendant made to them at the time of his arrest improperly admitted into evidence in light of the rule announced in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361.

The Record

On the afternoon of April 30, 1963, defendant entered the Fillmore Cigar Store located at 1701 Fillmore Street in San Francisco. This store displayed a sign in its window advertising that payroll checks could be cashed therein. Upon entering the store, defendant approached the clerk and handed him a check which was imprinted with the name of the Ensign Cafe, No. 1 Market Street. The check, which was dated April 29, 1963, was drawn on the North Beach Branch of the Bank of America for $71.62, and was made payable to the order of Tommy Carpenter. In addition to the check, defendant gave the clerk an Indiana driver's license, dated April 30, 1956, issued to a Tommy Carpenter, of 4151 Graceland Avenue, Indianapolis, Indiana, and a temporary California driver's license in the name of Tommy Carpenter, dated July 18, 1961. As the handed these three documents to the clerk defendant inquired of him 'could this check be cashed?' The clerk in turn showed the check and the two driver's licenses to the store manager, Miss Pins, who did not know defendant's name, but recognized him as having been in the store on other occasions in the past. Miss Pins asked defendant "is this your check?" and "do you work there?" Defendant answered, "yes," whereupon Miss Pins asked defendant if the restaurant was open at that time, defendant replying that the cafe was "closed already."

Following this conversation, Miss Pins telephoned 'Information' in an effort to obtain the telephone number of the Ensign

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Cafe. Upon learning that there was no telephone listing, Miss Pins took the check and the driver's licenses to her uncle, the store owner, who was in the store at the time. The owner then conversed with defendant, questioning him as to his apparent eagerness to regain possession of the check and his hurry to leave the store, defendant having reached over the counter and attempting to pull the check from the owner's hand.

Meanwhile the police arrived, having been sent for by Miss Pins, who showed the officers the check and identification papers and told them of the events which had transpired. One [233 Cal.App.2d 729] of the policemen then questioned defendant regarding the check, defendant responding (according to the testimony of the officer) that it was his check, that it was a check for having worked at the Ensign Cafe, and that Tommy Carpenter was his true name. The police then sent for a patrol wagon, and when it arrived the drivers recognized defendant and addressed him as Quincy Fork.

At the trial the Operations Officer at the North Beach Branch of the Bank of America testified tht the account of the Ensign Cafe had been closed in 1957, that the check in question was not of the magnetic coding type currently in use, and that neither of the two authorized signatures for the Ensign Cafe account, namely, "C' Caldaralla' and "M. A.' Caldaralla,' appeared on the check in question. Further, Officer Hall, who was one of the officers called to the cigar store on the afternoon of April 30, 1963, testified that he was acquainted with the Ensign Cafe and that it had been closed following the conviction and incarceration of its owner.

Sufficiency of the Evidence

Defendant's first contention on appeal is that the evidence is insufficient to sustain the conviction. Initially, we note the well-established rule concerning the scope of review of an appellate court that only where there is no substantial evidence in the record to justify the conclusion reached by the trial court can a court of appeal reverse the judgment of conviction on the ground of insufficiency of the evidence. The function of an appellate court, therefore, is limited to ascertaining from the record whether there is any substantial evidence to support the verdict of the jury. (People v. Carr, 156 Cal.App.2d 462, 464, 319 P.2d 445; People v. Janisse, 162 Cal.App.2d 117, 122, 328 P.2d 11.) Our review, moreover, is bound by the rule that insofar as the evidence is subject to opposing inferences, it must upon a review thereof be regarded in the light most favorable to support the judgment. (Mah See v. North American Acc. Ins. Co. of Chicago, Ill., 190 Cal. 421, 426, 213 P. 42, 26 A.L.R. 123; Hamilton v. Pacific Elec. Ry. Co., 12 Cal.2d 598, 602-603, 86 P.2d 829.)

According to Penal Code, section 470, ² a person commits a forgery when he, 'with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, to, or falsely makes, alters, forges, [233 Cal.App.2d 730] or counterfeits, any * * * check * * *; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above named false, altered, forged, or counterfeited matters, * * * knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; * * *.' Either the forging or the uttering (making use) of the instrument is enough to sustain a conviction. (People v. McKenna, 11 Cal.2d 327, 332, 79 P.2d 1065; People v. Ross, 198 Cal.App.2d 723, 727, 18 Cal.Rptr. 307; People v. Allen, 212 Cal.App.2d 857, 860, 28 Cal.Rptr. 409.) Although the information in the instant case charged defendant with both forging and uttering the check in question, and although the record indicates that the instrument was undoubtedly forged by someone, there does not appear to be evidence in the record which links defendant with

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the actual forgery. Accordingly, defendant's conviction can only be sustained on the basis of an attempt to pass a forged instrument.

Defendant urges that he did not attempt to pass the check. In his testimony at the trial he claimed that he took the checkin trial he claimed that he took the check in had previously made to the named payee, Tommy Carpenter, and that his purpose in presenting the check to the clerk in the cigar store was 'To find out if this check was negotiable, whether it was any good.' He further claims that the testimony of the witness for the prosecution, Miss Pins, corroborated this fact, and that the prosecution failed to establish any attempt by defendant to make use of the check.

As against these contentions we have the following evidence which is supportive of the jury's implied finding that defendant intended and was attempting to pass the check in question: Miss Pins testified that she heard defendant ask the clerk whether the check could be cashed; defendant gave an affirmative answer when she asked "is...