People v. Koch

• Decision Date: 29 January 1970
• Docket Number: Cr. 15376
• Citation: 84 Cal.Rptr. 629,4 Cal.App.3d 270
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Harland Wilbur KOCH, Defendant and Appellant.

Page 629

84 Cal.Rptr. 629

4 Cal.App.3d 270

The PEOPLE, Plaintiff and Respondent, v. Harland Wilbur KOCH, Defendant and Appellant.

Cr. 15376.

Court of Appeal, Second District, Division 4, California.

Jan. 29, 1970.

Hearing Denied March 25, 1970.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

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

JEFFERSON, Associate Justice.

Defendant appeals from his conviction in a nonjury trial of conspiracy to commit grand theft (Pen.Code § 182) and grand theft (Pen.Code § 487, sub. 1).

In October 1965 the Department of Employment received a prospective employer registration form for a business known as Service, Incorporated, signed by one Peter Daley as owner. In March 1966 it received a form reporting wages paid during the preceding quarter period by Peter Daley, of Service Incorporated, 131 East Fifth Street, to four employees, including an employee named Lawrence McAllister. An adjustment form was subsequently filed for the same business adding another employee, one Earl Mack, who was reportedly paid $1,752 in wages during the same period. Thereafter, a registration claim form for unemployment compensation was submitted to the Department by a person signing his name as Earl Mack.

In July 1966 an employer registration form for the Hogan Construction Company, 262 1/2 Pacific Avenue, Redondo Beach, was filed with the Department signed by one George Hogan as owner. A quarterly return and report of wages form was then filed for the same business, reporting that one John Quinn had been paid $1,766 for the period. An unemployment registration claim form was subsequently filed by a person who signed his name John Quinn, and who listed his last employer as George Hogan. Thirteen claim cards were thereafter submitted by the person signing his name as John Quinn and twelve pay order cards were made, each signed John Quinn, indicating a total payment to him in unemployment compensation of $780.

From the testimony of a handwriting expert, it was established that Lawrence McAllister prepared and signed the employer registration and report of employee earnings forms for the purported businesses, Service, Incorporated and Hogan Construction Company. It was further established that defendant signed John Quinn on the thirteen claim cards and signed the same name on each of the pay order cards, taking payment as the former employee of George Hogan; that defendant also prepared the preliminary claim form signing the name Earl Mack as the ex-employee of Service, Incorporated.

In fact no such business as Service, Incorporated or Hogan Construction Company existed. The address given for the Hogan Construction Company, 262 1/2 Pacific Avenue, Redondo Beach, was the address of a building sold to the city for urban renewal. It had never had a business in it known as Hogan Construction Company. The address, 131 East Fifth Street, given as the address of Service, Incorporated, was the address of a liquor bar owned by Robert Pasieczny. The latter had observed both defendant and McAllister in his bar in the past, although he did not recall whether they were together. McAllister frequented the bar. In January 1966, as a favor to McAllister, Mr. Pasieczny received mail, which McAllister said would be sent, from the Department of Employment addressed to Pete Daley. Mr. Pasieczny turned the mail over to McAllister.

No evidence was offered by defendant on the issue of his guilt.

Despite defendant's assertion to the contrary, substantial evidence was presented to uphold his conviction of the conspiracy charge. The evidence shows that defendant obtained unemployment benefits after making false claims, based on non-existent former employment, using the fictitious name John Quinn. He also registered a claim under another fictitious name (Earl Mack), falsely stating that he was the exemployee of another non-existent employer. McAllister registered both dummy businesses, reporting John Quinn and Earl Mack as employees, thus making possible the effectuation of the fraud. Certainly, the evidence supports the reasonable inference that the benefits were secured in pursuance of a scheme concocted between defendant and McAllister.

Nor do we find merit in defendant's contention that the registration and claim forms introduced by the People as exhibits were admitted without adequate foundation. The authentication requirement that there be evidence sufficient to support a finding that the writings were what the People claim (see Evid.Code, § 1400), was met. The testimony of the Department employees establishes that the registration and claim forms were filed with the Department. The evidence shows that they were fraudulent and that they were prepared by defendant and McAllister.

These exhibits were not hearsay since they were not offered 'to prove the truth' of their contents (see Evid.Code, § 1200). The prosecution's case rested on their being false. On the other hand, the twelve pay cards, introduced in another exhibit, were hearsay since they contained the extra-judicial declaration that the amounts represented were paid to defendant. But the People laid a proper foundation for their introduction under the business records exception. (Evid.Code, § 1271.)

However, defendant's conviction of grand theft must be reversed. In the light of People v. Gilbert, Cal., 82 Cal.Rptr. 724, 462 P.2d 580 (filed December 23, 1969) decided during the pendency of this appeal, we must conclude that for the acts charged defendant should not have been prosecuted under Penal Code, section 487, subdivision 1; but rather, for the misdemeanor offense covered under Unemployment Insurance Code, section 2101. In Gilbert the court concluded that 'the special provision of the Welfare and Institutions Code dealing with welfare fraud (§ 11482) precludes prosecution of such fraud under the older general theft provision of the Penal Code (§ 484).' Whereas in Gilbert the applicable section was Welfare and Institutions Code, section 11482, here the applicable section is Unemployment Insurance Code, section 2101. Section 11482 provides: 'Any person other than a needy child, who willfully and knowingly, with intent to deceive, makes a false statement or representation or knowingly fails to disclose a material fact to obtain aid, or who, knowing he is not entitled thereto, attempts to obtain aid or to continue to receive aid to which he...