People v. Hess

• Decision Date: 31 August 1970
• Docket Number: Cr. 3938
• Citation: 90 Cal.Rptr. 268,10 Cal.App.3d 1071
• Court: California Court of Appeals Court of Appeals
• Parties: , 43 A.L.R.3d 643 The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald L. HESS and Terry Lee Hess, Defendants and Appellants.

Page 268

90 Cal.Rptr. 268

10 Cal.App.3d 1071, 43 A.L.R.3d 643

The PEOPLE of the State of California, Plaintiff and Respondent, v. Donald L. HESS and Terry Lee Hess, Defendants and Appellants.

Cr. 3938.

Court of Appeal, Fourth District, Division 1, California.

Aug. 31, 1970.

Rehearing Denied Sept. 11, 1970.

Hearing Denied Oct. 28, 1970.

[10 Cal.App.3d 1074] Gilbert E. Newton, El Cajon, under appointment by the Court of Appeal, for defendants and appellants.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jimmie E. Tinsley, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice.

Appellants Donald L. and Terry Lee Hess, husband and wife, were jointly charged and convicted by jury of five felonies; grand theft as defined in Penal Code section 487(1), two counts of forgery Briefly summarized, and viewed in the light most favorable to the People, the evidence reveals:

(Pen.Code § 470), and two counts of grand theft as defined in Penal Code section 487(3) (horse theft). Mrs. Hess was also charged with four prior forgery convictions, one of which she admitted; the other three were found to be true. Appellants were both sentenced to prison on all five counts, with Counts I and II ordered to run consecutively. In addition, Mrs. Hess was fined $5,000. They appeal from the judgments of conviction.

(1) Appellants agreed to board two horses, a mare named Stardust and her colt named Golden Boy, Jr., for their owner, Mrs. Lenore K. Thompson. In return they were to receive the use of the mare and the right to breed her and keep all foals. Mrs. Thompson did not agree to give or sell the horses to appellants.

(2) By presenting two forged bills of sale and a statement of loss to the Arabian Horse Club Registry of America, located in Chicago, Illinois, appellants obtained a duplicate registration certificate for a full-blooded arabian mare named Ingaia. Ingaia was at all times stabled by her real owner in Iowa; she was worth in excess of $3,000.

(3) Knowingly using the false certificate and fraudulently representing Stardust to be Ingaia, appellants sold Stardust to Mr. and Mrs. Hendrix, who purchased her only because they believed her to be Ingaia and a full-blooded arabian mare.

(4) Mr. and Mrs. Hendrix agreed to pay appellants $1,000 for the mare; $550 was actually paid by them on account of the agreement.

(5) Stardust was in fact half arabian and half Welsh pony, worth between $150 and $200.

(6) What happened to Golden Boy, Jr. is not clear, except he was never returned to Mrs. Thompson by appellants.

At trial appellants unconvincingly claimed Mrs. Thompson had given them both horses, represented Stardust to be Ingaia, and furnished them with the forged bills of sale and statement of loss. They also contended they sold the mare in good faith, believing her to be Ingaia. The jury rejected their claims and accepted the contrary evidence elicited by the People. Appellants do not question the sufficiency of the evidence to support the judgments. On appeal they make the following contentions:

(1) Evidence was improperly admitted to show that Mrs. Hess refused to give a sample of her disguised backhand writing.

(2) Post litem motam handwriting examplars were improperly admitted in evidence.

(3) Evidence of a phone conversation was admitted without foundation.

(4) The court erred in refusing one of the petty theft instructions.

(5) The court improperly allowed a witness to refresh her memory from a memo written more than a year after the events occurred.

(6) Defendants were denied due process of law and a fair trial by the prejudicial misconduct of the trial judge.

DISCUSSION

I

The signatures on the forged bills of sale and claims of loss used to effect the sale of Stardust as Ingaia were written with a backhand slant. Mrs. Hess, among others, gave an examplar of her handwriting to a district attorney's investigator. Although the exampler contained a small amount of backhand writing, the People's handwriting expert, while noting many simlarities, found it inadequate to make a definitive comparison with the forged documents. Before trial and on motion, the prosecution obtained an order requiring Mrs. Hess to furnish an additional sample of her backhand writing. On advice of counsel, she refused to furnish the sample. Over objection, the prosecution produced evidence of the refusal, and argued it to the jury as raising an inference of guilt.

Appellants concede it would have been proper to require Mrs. Hess to furnish samples of her normal writing or printing. Their objection is to the backhand sample where a backhand slant was not Mrs. Hess' natural writing style. They argue, 'It is unfair to compel the accused to write in an unnatural hand, disguised in the same manner as the forged writing, in order to facilitate identification.' The contention is not supported by authority. The privilege against self-incrimination is a bar against compelling communication or testimony; it does not prevent compelling the accused from becoming the source of real or physical evidence. Schmerber v. State of California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908, 916: '* * * (the privilege) offers no protection against compulsion to submitting to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, To assume a stance, to walk, or To make a particular gesture.' (Ibid. emphasis added) Assuming a stance, or making a particular gesture, require the suspect to do something artificial or unnatural, yet the court in Schmerber indicates such requirements are permissible. In United States v. Wade, 388 U.S. 218, 223, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149, 1155, the Supreme Court specifically held requiring a defendant to repeat the words uttered by a robber was permissible and did not violate his privilege against self-incrimination. Furthermore, it is clear from the testimony of the handwriting expert, the preparation of a backhand examplar by Mrs. Hess would not tend to lead to a mistaken identification. Rather it would have facilitated either her identification or her elimination as the author of the forged documents. The order requiring Mrs. Hess to provide a backhand handwriting examplar was proper and, under the rationale of People v. Ellis, 65 Cal.2d 529, 536--538, 55 Cal.Rptr. 385, 421 P.2d 393, it was also proper for the People to prove she had refused to comply with the order.

II

During the defendants' case, Mrs. Hess testified Lenore Thompson told her the mare in question was Ingaia and gave her the two bills of sale and the statement of loss which proved to be forged. Her testimony implied Mrs. Thompson was responsible for the forged documents. In rebuttal the People recalled their handwriting expert. He testified he had compared the forged documents with known samples of Mrs. Thompson's handwriting and found the handwriting on the forged documents was not Mrs. Thompson's. Admittedly the handwriting samples were obtained from Mrs. Thompson after the controversy and litigation began.

As a general rule, a handwriting specimen made for the occasion, and post litem motam, may not be used for comparison purposes, and admission of opinion evidence based upon such comparison to corroborate a witness' testimony is error. (People v. Briggs, 117 Cal.App. 708, 711--712, 4 P.2d 593; People v. Golembiewski, 25 Cal.App.2d 115, 119, 76 P.2d 717; People v. Sauer, 163 Cal.App.2d 740, 744--746, 329 P.2d 962; People v. Villarino, 7 Cal.App.3d 56, 67, 86 Cal.Rptr. 338.) However, as appellants' concede, the forged handwriting in this case was disguished in a backhand slant. Positive identification or elimination by comparison with the forged documents required examplars written in backhand. Since none of the persons upon whom suspicion focused (Mrs. Hess, Mr. Hess and Mrs. Thompson) naturally wrote in backhand, obviously no such pre-existing handwriting specimens were available. ¹

The rule barring use of post litem motam handwriting specimens is not universally followed. (See People v. Sauer, Supra, 163 Cal.App.2d 740, 745, 329 P.2d 962; 29 Am.Jur.2d, Evidence, § 810, pp. 902--903.) It is subject to the exception which permits a cross-examiner to demand and use a handwriting sample obtained in open court. (People v. Villarino, Supra, 7 Cal.App.3d 56, 67, 86 Cal.Rptr. 338.) We think the rule presupposes existing samples, adequate for comparison purposes, will normally be available, and we doubt the rule should be applied where the questioned writing is in a disguised style precluding the preexistence of samples which will enable an expert to make a definitive analysis. In any event, the evidence of appellants' guilt is overwhelming, and their explanation of what transpired is completely unconvincing. If error occurred in connection with the admissibility of the handwriting testimony, we are convinced no miscarriage of justice occurred. Assuming error, we are precluded from reversing the judgment because of it by Article VI, section 13 of the California Constitution. (People v. Watson, 46 Cal.2d 818, 835, 299 P.2d 243.)

III

Over defense objection, Larry Robertson, the owner of the genuine arabian horse Ingaia, was permitted to testify concerning a telephone call he received in the fall of 1966 from a person who identified herself as Terry Lee Hess of Jamul, California. Appellants contend no foundation was laid for the admission of the telephone call because Robertson admitted he had never met Terry Lee Hess, had only the one conversation with her, and could not identify her voice. The contention is without merit. The identity of a party to a telephone conversation may be established by circumstantial as well as direct evidence. (People v. Davis, 210 Cal.App.2d 721, 738, 26 Cal.Rptr. 903; People v. Goodman, 159 Cal.App.2d 54, 62, 323 P.2d 536.)

'(I)dentity of a party to a telephone conversation may be established by proof of...