People v. Luizzi

• Decision Date: 22 December 1960
• Docket Number: Cr. 7290
• Citation: 187 Cal.App.2d 639,9 Cal.Rptr. 842
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Louis LUIZZI, also known as Frank L. Marta, Defendant and Appellant.

Page 842

9 Cal.Rptr. 842

187 Cal.App.2d 639

PEOPLE of the State of California, Plaintiff and Respondent, v. Frank Louis LUIZZI, also known as Frank L. Marta, Defendant and Appellant.

Cr. 7290.

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

Dec. 22, 1960.

Hearing Denied Feb. 15, 1961.

Julian I. Harmon, Beverly Hills, for appellant.

Stanley Mosk, Atty. Gen., and George W. Kell, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant was convicted by a jury of four counts of forgery, all alleged to have occurred on the same day and involving the same amount. Each count charges forgery and uttering in violation of Section 470, Penal Code. From the judgment of conviction and order denying his motion for new trial defendant appeals. He contends that the People failed to prove 'the elements of the crime of forgery as specifically alleged in the information,' that the deputy district attorney committed prejudicial error in cross examination, that Officer Woodring was biased and prejudiced against him, and that there is insufficient evidence to support the jury's verdicts.

'Where there is substantial evidence in support of the jury's determination it must be upheld' (People v. Caritativo, 46 Cal.2d 68, 72, 292 P.2d 513, 515; People v. Eggers, 30 Cal.2d 676, 185 P.2d 1); applying this rule and viewing the evidence and all inferences reasonably to be drawn therefrom in the light most favorable to the judgment (People v. Newland, 15 Cal.2d 678, 104 P.2d 778; People v. Crooker, 47 Cal.2d 348, 303 P.2d 753; People v. Kerr, 37 Cal.2d 11, 229 P.2d 777), we are satisfied that the evidence hereinafter set forth is more than ample to sustain the jury's verdicts.

All checks (Exs. 1 through 4) were dated and passed in various food markets the same day, August 28, 1959; each bore the name of Richard B. Bardwil as the drawer, Joseph G. Carr, as the payee, and on the reverse side the endorsement 'Joseph G Carr 4731 Waring Ave LA, Calif'; and each check was drawn for the sum of $88.78. Bardwil is an attorney at law with offices in the same building as that of defendant; the four checks (Exs. 1, 2, 3 and 4) are the check forms used by Bardwil in his law business; he is the only one authorized to sign his name to checks and the name 'Richard B. Bardwil' on the face of each check is neither his signature nor in his handwriting and was not authorized by him; during the time in question Bardwil was away from his office attending the American Bar Convention and upon his return he was notified by his secretary and an associate that his check book was missing; Bardwil is acquainted with defendant, having represented him in a personal injury matter about three weeks before leaving for the convention; and defendant was in Bardwil's office several times during that period. It was established through an examiner of questioned documents and handwriting expert, from a handwritten exemplar (Ex. 5) which he asked for and received from the defendant and which defendant wrote in his presence, that the name 'Joseph G. Carr' and the address on the back of each check were written by the same person who wrote Exhibit 5. In addition a second handwriting expert testified that in his opinion the endorsement on the reverse side of each check (Exs. 1, 2, 3 and 4), 'Joseph G. Carr 4731 Warning Ave LA, Calif' was written by defendant who also wrote Exhibit 5.

In connection with Count I, Jack Goodman, manager of the Star Market in Monterey Park, identified defendant as the man who presented Exhibit 1 for payment and who represented himself as Joseph G. Carr, showing Goodman as identification a temporary driver's permit. Although Goodman authorized the check for encashment, he also directed Hatch, an employee, to follow defendant and obtain his license number. Defendant was 'in a hurry' and Hatch had to run to keep up with him. He follow him to his car and as defendant left he saw the license number, remembering only a portion of it, which he gave to Goodman. Goodman at the time wrote on the check? 'KZ7051.' Hatch described the automobile as about a 1958 Cadillac, pink convertible, with white top, which description Goodman also recorded on the check. Hatch identified the man as the defendant. The check was dishonored by the bank.

As to Count II, Robert Sorenson, owner of Bob's Fine Foods in Rosemead, identified defendant as the man who early in the morning of August 28th or August 29th brought a check to him inside the front door of the market. Defendant asked him whom he should see to get a check 'o. k.'d.' Sorenson 'o. k.'d' it with a small 'R' and returned it to defendant; Harriet Tiner, a clerk, cashed the same and identified the man who presented it as the defendant. It was returned by the bank dishonored.

Relative to Count III, Exhibit 3 was presented to Rudolph Jaques, assistant cashier at the Cracker Barrel Market for encashment; he could not identify the person who presented the same but asked him for identification in the form of a driver's license and wrote on the back of the check 'Temp. D/L' (temporary driver's license), its number and his own initials; the check carried the endorsement of 'Joseph G. Carr' and the Waring Avenue address on the reverse side.

Concerning Count IV, Margaret Burkhart, an employee of Jim's Market in Montebello, was presented with Exhibit 4; she called the manager who 'o.k.'d' the check; she cashed it and gave the man, whom she could not identify, $11.75 worth of groceries and the balance in cash, which she noted on the check with her initials.

At the time of his arrest, defendant told Officer Woodring at the former's office that he borrowed a Cadillac from a lady friend and it was not pink and white but red and white and he had used it in Monterey Park on August 28.

Defendant offered his own testimony and that of his wife and several others in an alibi defense. He testified that on August 28 he was in an all-day meeting with his business partners Carl Guerriero, Jack Thorpe, Matthew Fain and Nick Bufalino; denied that he had ever told Officer Woodring that a girl friend had loaned him her pink Cadillac or that he had ever borrowed a Cadillac for any purpose, that he had anything to do with the checks and that he ever had a temporary driver's license in 1959; and said he owned a 1955 Cadillac convertible, license number KZC517. Guerriero, a used car dealer, testified concerning the meeting in his office on August 28, and that defendant was there all day on both the 28th and the 29th; Thorpe, a dealer in used horse trailers, and Fain, a motion picture actor, testified to the same effect.

Incident to his contention that the evidence is insufficient to support the jury's verdicts is appellant's primary claim that the evidence does not support the offense of forgery of a check as alleged in each count, and forgery of endorsement is not charged therein.

Each count of the information alleges that defendant on August 28, 1959 'did willfully, unlawfully, fraudulently and feloniously make, alter forge and counterfeit a certain check and order in writing for the payment of money,' in a sum of $88.78 and 'did then and there utter, publish and pass the same, knowing that said check was false, altered forged and counterfeited, with intent then and there to cheat and defraud' certain named persons, including Richard B. Bardwil and the Bank of America.

The crime of forgery as denounced by statute (Section 470, Penal Code) consists of either of two distinct acts--the fraudulent making of an instrument, such as a false writing thereof, or the uttering of a spurious instrument by passing the same as genuine with knowledge of its falsity (People v. Lucas, 67 Cal.App. 452, 227 P. 709); and although both acts may be alleged in the conjunctive in the same count in the language of the statute, the offense does not require the commission of both--it is complete when one either falsely makes a document without authority or passes such a document with intent to defraud (People v. Pounds, 168 Cal.App.2d 756, 336 P.2d 219; People v. McKenna, 11 Cal.2d 327, 79 P.2d 1065; People v. Morgan, 140 Cal.App.2d 796, 296 P.2d 75; People v. Murrie, 168 Cal.App.2d 770, 336 P.2d 559), and the performance of one or both of these acts with reference to the same instrument constitutes but a single offense of forgery. People v. Frank, 28 Cal. 507.

Citing People v. Thornburgh, 1906, 4 Cal.App. 38, 87 P. 234; People v. Cole, 1900, 130 Cal. 13, 62 P. 274; People v. Johnson, 1907, 7 Cal.App. 127, 93 P. 1042; and People v. Feldman, 171 Cal.App.2d 15, 339 P.2d 888, appellant argues that an endorsement is no part of a check, that the evidence falls short of forgery of a check as charged and that forgery of endorsement thereon is not alleged in the information. Appellant's position is not sound, for not only is the evidence such that the jury could properly infer that defendant forged the checks alleged and the proof unquestionably shows that he forged the endorsement on the reverse side of each, but under Section 470, Penal Code, and the holding in People v. Jones, 12 Cal.App. 129, 106 P. 724 decided in 1909, forgery of endorsement is properly alleged in each count of the information. In defining forgery, Section 470 specifies numerous instruments that may be the subject of that offense listing by name all kinds and character of writing; and it was early held in People v. Jones, 12 Cal.App. 129, 106 P. 724, that an 'order for the payment of money' within the meaning of that section includes the endorsement of the name of the payee on the reverse side of the check. Said the court therein on page 132 of 12 Cal.App., on page 725 of 106 P.: 'The indorsement of a check is equivalent to an 'order for the payment of money,' and therefore is included within section 470.' In the instant case each count not only alleges forgery of 'a certain check' but specifically includes therein forgery of 'an order in writing for the payment of...