People v. Knighton

• Decision Date: 19 April 1967
• Docket Number: Cr. 2577
• Citation: 250 Cal.App.2d 221,58 Cal.Rptr. 700
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Leslie KNIGHTON, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 700

58 Cal.Rptr. 700

250 Cal.App.2d 221

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Leslie KNIGHTON, Defendant and Appellant.

Cr. 2577.

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

April 19, 1967.

[250 Cal.App.2d 222] William Leslie Knighton, in pro. per.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip M. Rosten, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

McCABE, Presiding Justice.

By information defendant was charged in Count I with the offense of issuing a check without sufficient funds in violation of Penal Code 476a, and in Count II defendant was charged with unlawful taking of personal property of Garner Ford, to wit, an automobile, a violation of Penal Code 487 (Grand Theft). Additionally, the information alleged a prior conviction in the State of New Mexico for issuing worthless checks, a felony, and that defendant had served a term of imprisonment in that state prison. Before trial and out of the presence of the jury, defendant admitted the prior conviction of the felony as alleged in the information.

The charges against the defendant arise out of his attempted purchase of a 1963 Ford automobile from Garner Ford, a local Ford agency, in February 1963. At the trial according to the testimony of a salesman, Mr. Testa, the defendant came onto the Garner Ford used car lot on Saturday, February 2, 1963. He assertedly indicated to Testa that he was a newcomer to California from the east, but was employed locally as a mechanical engineer at Hunter Engineering. After looking at many used cars, he stated he had enough money to pay for a car, but needed some of it to get 'settled.' Testa testified the defendant told him he had a 1962 Thunderbird which he hoped to sell and if he did so his financial problems would be resolved.

Mr. Testa urged that the defendant make a down payment and finance the balance of the purchase price on a conditional sales contract through Garner Ford, but defendant refused by stating he could get funds through Hunter Engineering's credit union. After looking at some other cars, defendant left the used car lot indicating he wanted to look around some more.

The following day, Sunday, February 3, the defendant returned to the lot and finally selected a 1963 Ford. Testa drew up a purchase other, indicating a purchase price of $2,738.80, which defendant signed. The defendant alleged he had forgotten his checkbook and asked for a Security First National Bank counter check. Testa offered to allow him to sign a one-day contract but defendant refused and insisted on the counter check. Testa complied and defendant filled out the counter check. Defendant assertedly could not remember his account number and stated he would replace the counter check with his personal check, which he did on February 4. Becoming cautious, Testa told the defendant he couldn't hold the check and it would be deposited in the normal course of business. Although defendant assured Testa the check was good, Testa told him he would have to make it good if he didn't have funds to cover it. Defendant took delivery of the auto on this date.

Several days later Testa took defendant's check to the Riverside Main Office of Security First National Bank to negotiate it, but on presentment the check was dishonored. Testa attempted to contact detendant at Hunter Engineering, but defendant, although employed there, had not reported to work. Defendant could not be contacted at his residence address. The 1963 Ford was purportedly recovered three weeks later in Bakersfield, California. At the trial and upon cross-examination, Mr. Testa admitted, in his employment, he was on a straight commission only and was financially responsible for the auto if not recovered.

An assistant cashier from the bank testified as a part of the prosecution's case that the defendant had in fact opened an account on February 4, 1963, with an initial deposit of $203.94, but the account later became overdrawn and was closed by the bank on March 26, 1963. No credit arrangements had been made by the defendant.

The defendant, represented by court appointed counsel, testified he had looked at various automobiles on February 2, 1963, but had not discussed financing. When he returned to the lot on February 3, a Sunday, he selected a 1963 Ford Fairlane and Testa wrote up a sales order. Then, according to the defendant, he asked to see a sales manager to discuss a matter which he did not feel Testa had authority to dispose of. This request was granted by Teata. Defendant then told the sales manager in Testa's presence, that he didn't have any money at present, but needed a car to get to work the following day. Testa then suggested financing, but defendant stated he could not obtain financing through a bank since Ford Motor Credit Company had just repossessed his car. Defendant did state he could obtain a loan through his company's credit union. Defendant testified the parties agreed defendant could draw a counter check on a bank and the sales manager would hold it for ten days. Defendant then signed the papers and took possession of the car. The following day, after he had opened a commercial account, he replaced the counter check with a personal check, dated February 4, and gave it to the sales manager who initialled it at the bottom. Defendant testified he was assured by the sales manager the check would be held for later deposit.

Defendant attempted to obtain funds from his credit union, but was unable to do so since he had not yet been employed long enough to be eligible for a loan. Similar attempts to do so at two loan companies were also fruitless.

Defendant failed to tell Garner Ford about his inability to obtain financing. Defendant testified he returned the 1963 Ford about a week after he wrote the check by parking it at night on the street adjacent to the used car lot and placing the keys inside the car on the floorboard. He then walked to the bus station at Fifth and 'F' Street in San Bernardino, took a bus to Los Angeles and returned to the midwest by hitchhiking.

During the cross-examination of defendant, the prosecuting attorney asked the defendant whether he had ever been convicted of a felony. The defendant answered in the affirmative and stated that the conviction was in the State of New Mexico and that he served time for the conviction. No objection was interposed by the defendant to the questions. At the conclusion of the cross-examination on this point, the district attorney sought to introduce into evidence an abstract of judgment of conviction from the State of New Mexico. This was objected to by defendant contending that the impeaching testimony had been admitted and it was unnecessary to have the abstract of judgment admitted into evidence. This objection was argued out of the presence of the jury. The court sustained the objection and the abstract of judgment was not admitted into evidence consequently the jury only had defendant's testimony on this point. As to the effect, if any, of the impeaching testimony of a prior conviction, the trial judge gave the jury CALJIC 52, revised, and CALJIC 54.

After the verdict of conviction and before the pronouncement of judgment and sentence, the defendant made a motion to withdraw his admission of the prior conviction. This matter was set down for hearing. At the hearing the defendant contended that in light of the decisions in In re Woods, 64 Cal.2d 3, 48 Cal.Rptr. 689, 409 P.2d 913; In re Luce, 64 Cal.2d 11, 48 Cal.Rptr. 694, 409 P.2d 918; In re Tucker, 64 Cal.2d 15, 48 Cal.Rptr. 697, 409 P.2d 921, the prosecution was obligated to introduce evidence that during the course of the trial which resulted in prior conviction, the constitutional rights of the defendant had been protected and safeguarded or, after being advised of those rights, he had properly waived them. During the hearing the district attorney moved to strike the alleged prior conviction which motion was granted and the alleged prior ordered stricken. Because of this order, the trial judge was under no obligation to rule on defendant's motion since the issue had become moot.

On this appeal, defendant urges (1) the district attorney's cross-examination on the prior conviction constituted prejudicial error for the prior felony conviction referred to for impeachment purposes was not shown to have been obtained with the required observance of the constitutional guarantee required by Woods, Luce and Tucker, supra, and (2) the testimony of the prosecution's chief witness was spurious and not worthy of belief. Defendant contends the prior conviction may not be used for impeaching purposes since the prior conviction was later stricken and therefore should not have been used for impeaching purposes.

Under the facts of Woods, Luce and Tucker, supra, the prior convictions were used to establish habitual criminality or to elevate a misdemeanor to a felony. In none of these cases was the prior conviction used for impeachment purposes and the enunciations in these cases do not compel us to decide they are controlling in the case at bench.

As stated, the defendant did not object to the use of the prior conviction on the impeachment proceedings and did not raise that specific issue with the trial court during the trial or subsequent to the trial either by motion for new trial or by any other process. Thus for the first time on this appeal, the defendant is raising the issue of the use of a prior conviction for impeachment purposes. By doing so he is collaterally attacking the prior conviction in the State of New Mexico and asserting a federal constitutional question is presented.

Section 2051, Code of Civil Procedure, provides:

'A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular...