People v. Kovach

• Decision Date: 16 November 1961
• Docket Number: Cr. 7311
• Citation: People v. Kovach, 197 Cal.App.2d 80, 16 Cal.Rptr. 876 (Cal. App. 1961)
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Theodore B. KOVACH, Defendant and Appellant.

Page 876

16 Cal.Rptr. 876

197 Cal.App.2d 80

PEOPLE of the State of California, Plaintiff and Respondent, v. Theodore B. KOVACH, Defendant and Appellant.

Cr. 7311.

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

Nov. 16, 1961.

Theodore B. Kovach, appellant, in pro. per.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Carlos F. Borja, Jr., Deputy Atty. Gen., for respondent.

SHINN, Presiding Justice.

The Grand Jury of Los Angeles County returned an indictment of Theodore B. Kovach, accusing him of six offenses of grand theft, namely, the unlawful taking of $500 from Sarah Glade, $1,000 from Sarah Glade, $1,500 from Sarah Glade, $2,000 from Richard Moss, $1,000 from Frank Graves and $3,200 from Hubert Gary. In a nonjury trial he was convicted of all offenses and was sentenced to state prison. He appeals from the judgment in propria persona and represents himself on the appeal.

In the early stages of the case defendant was represented by counsel. A motion for dismissal under section 995 of the Penal Code was made with respect to each of the six counts, and was denied. Defendant then relieved his attorneys of their employment and in writing substituted himself in their stead. Thereafter, the public defender was appointed as counsel for defendant. Trial by jury was duly waived. It was stipulated that the court might read and consider the testimony taken before the Grand Jury, reserving the right of either side to produce further evidence. No additional evidence was produced. Testimony was given by Sarah Glade, Richard Moss, Frank Graves, Hubert Gary, and others. Defendant did not testify.

Upon three occasions defendant represented to Mrs. Glade that he was representing a syndicate in the purchase of houses that had to be moved because of freeway construction; he was associated with a friend in the State Division of Highways from whom he obtained valuable information and that the houses could be quickly sold at a substantial profit. Mrs. Glade first gave defendant $500 to be used in the purchase of houses and for an interest in the profits when the houses would be sold. Shortly thereafter, defendant returned the $500 and $200 in addition. Upon the same representations and promises by defendant and for the same purpose Mrs. Glade gave defendant $1,000 and the following month upon the same representations for the same purpose she gave defendant $1,500. She testified that he had returned to her $1,300. It was stipulated that defendant was deemed to have testified that he returned $2,700 to Mrs. Glade.

To Richard T. Moss defendant represented that he was purchasing some land from the California Division of State Highways, that he needed $7,000 to close an escrow on the purchase and that he had another escrow pending for the sale of the property for $15,000. Upon this representation and the promise that Mr. Moss would share in the profits, he gave defendant $2,000.

To Frank Graves defendant made the same representations he had made to Mrs. Glade, namely, the money would be used for the purchase of houses that were being sold, due to freeway construction. On the promise of a share of profits that would be made when the houses were sold, Mr. Graves gave defendant $1,000.

To Hubert L. Gary defendant made representations that he was purchasing a house through the Division of Highways which could be sold at a profit and needed additional money to complete the purchase price. On defendant's promise that Mr. Gary would share in the profits Gary gave defendant $3,200. Later he returned to Gary $800.

In the transactions with each of the victims defendant gave them two postdated checks, one representing the amount of the investment and the other the anticipated profit. He also issued his promissory notes, postdated, for the amount of each investment and anticipated profits. To each of the victims defendant represented that he had connections with the Division of Highways which enabled him to learn of advantageous purchases to be made. Defendant had no bank accounts to cover the checks, and returned no money except as previously stated.

Defendant was called to the stand by the People and when questioned whether he had received the amounts with which the victims had parted he refused to answer upon the advice of his attorney and the provisions of section 1323.5 of the Penal Code, which provide that an accused is deemed a competent witness only at his own request.

Upon representations that he was making arrangements for representation by counsel on the appeal and by means of other excuses and pretexts urged to the court, defendant succeeded in delaying the filing of his opening brief for more than a year. The delay has accomplished nothing for defendant except to keep him out of prison.

Defendant states his first point as 'Insufficiency of the evidence to establish guilt beyond a reasonable doubt.' One phase of the claim of insufficiency of the evidence is that the district attorney stated he would prove larceny by trick and device and then produced evidence that would only tend to prove embezzlement or obtaining property by false pretenses. Defendant's discussion of the elements of these offenses is wasted effort. It has been held repeatedly that a conviction of grand theft is supported by evidence that the accused was guilty of embezzlement, of larceny or obtaining property by false pretenses. Of the many cases declaring this principle, we select at random People v. Brown, 114 Cal.App.2d...