People v. Guastella

• Decision Date: 25 May 1965
• Docket Number: Cr. 10070
• Citation: 234 Cal.App.2d 635,44 Cal.Rptr. 678
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. LaVonne Marian GUASTELLA, Defendant and Appellant.

Page 678

44 Cal.Rptr. 678

234 Cal.App.2d 635

The PEOPLE of the State of California, Plaintiff and Respondent, v. LaVonne Marian GUASTELLA, Defendant and Appellant.

Cr. 10070.

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

May 25, 1965.

Rehearing Denied June 9, 1965.

Hearing Denied July 21, 1965.

Kate Whyner, Hollywood, under appointment by District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., George J. Roth, Deputy Atty. Gen., for respondent.

KAUS, Justice.

Appellant was convicted of violating Penal Code, § 476a by making and uttering six checks knowing that at the time she did not have sufficient funds or credit with the various banks on which the checks were drawn.

The dates and amounts of the six checks involved were as follows:

January 12, 1962 $40.00

January 12, 1962 $35.00

March 13, 1963 $45.00

March 13, 1963 $45.00

March 13, 1963 $45.00

August 11, 1963 $35.00

The three checks of March 13, 1963 were charged in count 1 of the indictment, the other three in count 2.

The victims were various markets and business establishments in the Los Angeles area. There is no need to detail the evidence. Suffice it to say that the evidence admitted, and properly admitted as the law then stood, was amply sufficient to justify the convictions. True, appellant testified to facts which, if accepted, would have constituted a defense. She was apparently not believed.

New concepts force us to review this, as many other records before us, with hindsight.

The only victims who were able to identify appellant as the person who passed the checks were two of those who accepted them on March 13, 1963. As far as the other four checks are concerned, the prosecution relied on an admission by appellant that she had signed the checks, made to Officer Glasgow of the Los Angeles Police Department at the Santa Barbara Sheriff's office. He testified that he had a conversation with the defendant concerning the present charges, that he showed her the checks in question and asked her whether she had written them. She admitted having done so, coupling her admission with certain exculpatory statements, some of which were slightly inconsistent with her later defense. Most of the rest of the conversation, however, was a fairly correct preview of what she later testified to. On the stand she also admitted to being the person who signed the checks. We do not know why she was at the sheriff's office, nor whether she was in custody there, nor, if she was, whether she regained her freedom after the interview. The record does show that Officer Glasgow arrested her on the present charges early in December. The Santa Barbara conversation had taken place on November 25.

The statements made by appellant to Officer Glasgow were mere admissions of one element of the charges against her; however without them the prosecution would not have had a prima facie case on four of the checks. If they were illegally obtained we must disregard the fact that appellant confirmed her admission on the stand. (Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; People v. Dixon, 46 Cal.2d 456, 296 P.2d 557.) Nor can we rely on the possibility that the jury, as was its right under Code of Civil Procedure, § 1944, compared the signatures and found them all to be written by the same person, because neither of the two victims who identified appellant as the person who presented the checks to them, testified that they saw her write them.

The question is whether the statements were improperly admitted. Here we are met with a problem not uncommon in records of cases tried before Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; and People v. Dorado, 62 Cal.2d ----, 42 Cal.Rptr. 169, 398 P.2d 361. ¹ None of the participants at the trial knew that later on the admissibility of incriminating statements made by the defendant would be judged in the light of the four tests laid down in those cases: 1. Had the investigation begun to focus on a particular suspect? 2. Was the suspect in custody? 3. Had the authorities carried out a process of interrogation that lent itself to eliciting incriminating statements? 4. Had the defendant been effectively informed of his right to counsel and of his right to remain silent? People v. Stewart, 62 Cal.2d ----, 43 Cal.Rptr. 201, 400 P.2d 97, ² establishes that as far as the last inquiry is concerned, the People must affirmatively show that the defendant had been properly cautioned. The reason for the rule is stated to be that it cannot be assumed that the authorities complied with constitutional principles not yet announced. While this is, of course, true, it is of no help in determining whether or not a point has been reached where the constitutional principles come into play, that is to say whether or not the accusatory stage had been reached.

When the Supreme Court decided Stewart and declared that it could not be presumed, on a silent record, that the authorities had complied with a constitutional principle not yet announced, it acted on the overwhelming balance of probabilities. In Dorado the court had cited only one single county--Contra Costa--where to its knowledge suspects were already being advised of their right to counsel. (People v. Dorado, 62 Cal.2d ----, 42 Cal.Rptr. 169, 398 P.2d 361.) ³ We cannot say that there is an equal balance of probabilities that the accusatory stage has been reached, whenever the record is silent on the question, or, as in the present case, incomplete. It is our view that we should not reverse in cases such as this unless the appellant can show from the record that she was entitled to a caution. Only then does the presumption declared in Stewart come into play. ⁴

Looking at the record before us, we cannot say that it establishes, even prima facie, that the accusatory stage had been reached in Santa Barbara on November 25.

We cannot assume, as the Supreme Court did in Stewart, that the first requirement--focusing--was met because appellant was apparently in custody. There the defendant had been arrested on the very charge to which his confession related and concerning which suspicion had begun to focus on him. Here we do not know the charge, if any, on which appellant was arrested in Santa Barbara, if indeed she was in custody at all. We do know that she was not arrested by Officer Glasgow for several days.

Granting that probably the course of the interrogation was such that it lent itself to eliciting incriminating statements--it certainly was successful in that respect--we cannot otherwise find any support in the record for the proposition that the accusatory stage had been reached with respect to the charges of which she was subsequently convicted.

There are several elements to a violation of Penal Code, § 476a. (People v. Rush, 172 Cal.App.2d 431, 435, 341 P.2d 788.) While it is safe to assume that Officer Glasgow was in possession of the six checks in question as a result of complaints made by the victims and was obviously investigating the possibility that a crime or a series of crimes had been committed, there is nothing to indicate that he knew anything except that somebody had uttered six checks which had been dishonored. Appellant had used three different names in cashing the checks, none of them the one under which she was charged and had used yet a fourth name to open one of the accounts against which several of the checks were written. We do not know under what name she went at the Santa Barbara Sheriff's office. Officer Glasgow may well have wondered whether he was talking to the maker of one or all of the checks. We cannot say that at the time of this conversation suspicion had focused on appellant.

Applying what we believe to be the proper rule on appeal of cases tried before Escobedo, we must hold that appellant has not shown that the accusatory stage had been reached. ⁵

Appellant complains that because of Penal Code, § 654 she may be punished for only one offense, but not for more than one. She is correct in stating that she has standing to raise the matter in spite of the concurrent sentences. (People v. Quinn, 61 Cal.2d 551, 555-556, 39 Cal.Rptr. 393, 393 P.2d 705; People v. Nor Woods, 37 Cal.2d 584, 586, 233 P.2d 897.) We cannot agree, however, with her basic point.

People v. Martin, 208 Cal.App.2d 867, 25 Cal.Rptr. 610, decided well after Neal v. California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, the leading case interpreting Penal Code, § 654, held that while issuing a check with insufficient funds and grand theft constitute indivisible criminal conduct, the issuing of a series of checks in violation of Penal Code, § 476a involved separate transactions, not subject to the provisions of Penal Code, § 654. Appellant does not quarrel with that holding. Her argument is based upon an extremely subtle theory not advanced in People v. Martin, supra, for the very good reason that at that time People v. Kennedy, 210 Cal.App.2d 599, 26 Cal.Rptr. 696, on which appellant relies, had not been decided by this court. In Kennedy defendant had issued four checks totaling $85.00. He was charged in four separate counts under 476a, found guilty on each count and sentenced to four concurrent state prison terms. It was held that issuance of one or more checks, the total of which does not exceed $50,00, is not a felony, that the issuance of one check for more than $50.00, or several checks aggregating more than $50.00 was a felony and that Kennedy had committed only one felony. Appellant apparently relies on language we employed in Kennedy and which is set forth in the...