People v. Katz

• Decision Date: 17 April 1975
• Docket Number: Cr. 25710
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Edwin Ben KATZ, Defendant and Appellant.

Page 603

120 Cal.Rptr. 603

47 Cal.App.3d 294

The PEOPLE of the State of California, Plaintiff and Respondent, v. Edwin Ben KATZ, Defendant and Appellant.

Cr. 25710.

Court of Appeal, Second District, Division 2, California.

April 17, 1975.

Stuart L. Baron, Beverly Hills, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Roy C. Preminger, Deputy Atty. Gen., for plaintiff and respondent.

BEACH, Associate Justice.

After a trial by jury defendant Katz was convicted of receiving stolen property. He appeals from the judgment of conviction.

FACTS:

Appellant Katz was convicted of receiving property stolen from Aaron Piliavin. Testimony revealed that Mr. and Mrs. Piliavin closed their store at about 6 p.m. on Saturday, July 7. When they returned on Monday, July 9, much of their stock (mostly jewelry and oriental art objects) was missing. Someone had broken in from the adjacent shop and had emptied the safe and some of the shelves. Mr. Piliavin testified that the total cost to him of the missing objects had been $9,168.14; that the replacement cost would be $35,839.52 and that the retail value of the goods was $67,542.

The stolen goods were sold by appellant to Jerome Furman, who in turn sold them to various dealers. The basic question at trial was whether appellant Knew the goods were stolen, for knowledge of the nature of the property is an element of the offense charged. (People v. Vann, 12 Cal.3d 220, 224, 115 Cal.Rptr. 352, 524 P.2d 824.) A related question is what standard to apply to determine whether he had knowledge. ¹

Jerome Furman, who was given immunity from prosecution, testified that he had seen appellant regarding the purchase of antique pocket watches. On July 11, 1973, appellant Katz asked if Furman was interested in a good deal; appellant took him to his office to see some oriental artifacts. The goods were packaged in carboard boxes with newspaper wrapped around them; they were not openly displayed. Appellant told Furman he had just purchased them and needed money for a quick transaction. He did not say anything about selling it on commission. They went to Furman's bank and withdrew $4,000 in $100 bills and a cashier's check for $1,600. Furman loaded the goods and asked for a detailed bill of sale; appellant said he would furnish it later, but even after several phone calls and visits by Furman appellant failed to do so.

Officer William Wighton served a search warrant on appellant on September 28, 1973. At that time, appellant said he bought the lot from Dave Rumgin, a dealer he had seen at previous auctions. Rumgin, according to appellant, wanted $5,000 for the items, and appellant would take a $600 commission. In his statement to the police, he said he got the items on July 7 at about 2 p.m. (According to Mr. Piliavin, they were still in his shop at that time.) Appellant also told the police that he did not give Furman a receipt; at trial, however, he testified that he did give Furman a receipt. Neither appellant nor the police have been able to find a Dave Rumgin.

Freda Clark, who worked in appellant's auctions, testified she heard appellant tell Rumgin he would put the items on consignment and would try to sell them at the auction. She did not recall if appellant asked if Rumgin was a dealer.

Appellant testified in his own behalf. According to appellant, Rumgin came in between 21 and 2 p.m. on July 9 and asked if appellant was interested in buying his stock; Rumgin said he was a traveling antique dealer and was no longer going to do shows. Appellant offered $3,000 or $3,500 for the merchandise, but Rumgin wanted $5,000 so appellant said he would put it up for auction and put a reserve on it. Appellant did not suspect the goods were stolen; he thought Rumgin was a dealer and that the value was fair. He admitted telling Officer Wighton that he did not give Furman a receipt, but he later found the receipt (defendant's D) in the July 11 auction invoices. It would have been impossible to give Furman an itemized invoice; besides, he never demanded one.

Appellant testified that he does receive items from individuals for resale. About 8 to 10 percent of his business comes from private people for auction or to sell at retail.

CONTENTIONS ON APPEAL:

Appellant contends that the giving of CALJIC 14.66, based on Penal Code section 496, was prejudicial error in that:

(1) Penal Code section 496(2) and (3) is unconstitutional as a violation of defendant's right to remain silent and therefore is unconstitutional insofar as it authorizes CALJIC 14.66 as a comment on defendant's exercise of his right to remain silent;

(2) The giving of the instruction violates the principle that the state must prove each element of the crime beyond a reasonable doubt; and (3) Penal Code section 496(2) and (3) is unconstitutional as a partial denial of the right to a jury trial.

DISCUSSION:

In his reply brief appellant has abandoned his initial contention that he was not a secondhand dealer and therefore was not within the ambit of section 496(2) and (3) of the Penal Code. We are left with questions regarding the constitutionality of the statute and the instruction based thereon.

Section 496 of the Penal Code makes it a crime for a person to buy or receive stolen property 'knowing the property to be so stolen.' Paragraph 2 of section 496 provides that:

'. . . Every person whose principal business is dealing in or collecting used or secondhand merchandise or personal property, . . . who buys or receives any property which has been stolen . . . under such circumstances as should cause such person, . . . to make reasonable inquiry to ascertain that the person from whom such property was bought or received had the legal right to sell or deliver it, without making such reasonable inquiry, shall be presumed to have bought or received such property knowing it to have been so stolen or obtained. This presumption may, however, be rebutted by proof.'

Paragraph 3 of section 496, in part pertinent here, reads:

'. . . When . . . it shall appear from the evidence . . . that the defendant bought . . . property which had been stolen . . . and that the defendant bought, received, obtained, concealed or withheld such property under such circumstances as should have caused him to make reasonable inquiry to ascertain that the person from whom he bought, received, or obtained such property had the legal right to sell or deliver it to him, then the burden shall be upon the defendant to show that before so buying, receiving, or otherwise obtaining such property, he made such reasonable inquiry to ascertain that the person so selling or delivering the same to him had the legal right to so sell or deliver it.'

In accordance therewith, the jury was instructed in terms of CALJIC 14.66:

'If the evidence establishes beyond a reasonable doubt that the defendant . . . (2) . . . bought or received property which had been stolen or obtained in any manner constituting theft, under such circumstances as should cause such person, agent, employee or representative to make reasonable inquiry to ascertain that the person from whom such property was bought or received had the legal right to so sell or deliver it and (3) that he did not make such reasonable inquiry, you should find that he bought or receive such property knowing it to have been so stolen or obtained.

'The burden is on such a defendant to show that before so buying, receiving, or otherwise obtaining such property, he made a reasonable inquiry to ascertain that the person selling or delivering the property to him had the legal right to sell or deliver it. In the absence of any proof that such a defendant made such reasonable inquiry you must assume that he did not make such inquiry.

'However, if from all the evidence you have a reasonable doubt whether he knew the property was so stolen or obtained, you should find that he did not know it was so stolen or obtained.'

Appellant objects to the presumption and burden of proof in the statute and the instruction.

1. Penal Code section 496(2) and (3) does not unconstitutionally shift the burden of proof.

The elements of the crime of receiving stolen property are '1) that the particular property was stolen, 2) that the accused received, concealed or withheld it from the owner thereof, and (3) that the accused knew the property was stolen. (Citations.)' (People v. Vann, Supra, 12 Cal.3d at p. 224, 115 Cal.Rptr. at p. 355, 524 P.2d at p. 827.) Appellant admits that the first two elements of the crime were proved; he apparently concedes also that substantial evidence would support a finding of knowledge. However, he contends that the jury might have found the element of knowledge not by weighing the evidence to see if the element were proven by the People beyond a reasonable doubt, but by applying the allegedly unconstitutional presumption in Penal Code section 496(2) and CALJIC 14.66.

Appellant contends that the presumption forces him to prove his innocence rather than compelling the People to prove his guilt beyond a reasonable doubt. Actually, his burden is 'to show that before so . . . receiving . . . such property, he made a reasonable inquiry to ascertain that the person selling or delivering the property to him had the legal right to sell or deliver it.' In the absence of proof of such inquiry, the jury must assume he did not so inquire. The absence of inquiry by a secondhand dealer who received stolen property is sufficient under the instruction to require that the jury 'should' find knowledge. However, the presumption operates only if the People have proved beyond a reasonable doubt (a) that the property was stolen, and (b) the existence of circumstances that should cause a reasonable person to make inquiry.

Presumptions in criminal cases have been upheld. In United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658, for...