People v. Lustman

• Decision Date: 03 December 1970
• Docket Number: Cr. 17456
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jack A. LUSTMAN, Defendant and Appellant.

Page 548

91 Cal.Rptr. 548

13 Cal.App.3d 278

The PEOPLE, Plaintiff and Respondent, v. Jack A. LUSTMAN, Defendant and Appellant.

Cr. 17456.

Court of Appeal, Second District, Division 5, California.

Dec. 3, 1970.

Rehearing Denied Dec. 21, 1970.

Hearing Denied Jan. 28, 1971.

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 John H. Darlington, Deputy Atty. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

Defendant is appealing from the conviction of three counts (I, II and IX) of grand theft (Pen.Code § 487(1)) and two counts (VI and VII) of forgery by fictitious name (Pen.Code § 470). Defendant was found not guilty of the remaining four counts of the nine count information. All of the violations are felonies. After waiver of trial by jury, the case was submitted on the transcript of the preliminary hearing, with some additional testimony taken at the trial.

Defendant contends that the violations of which he was convicted are activities proscribed by Unemployment Insurance Code sections 2101 and 2102, and that he can only be prosecuted for misdemeanors, as provided by those code sections.

The facts are that defendant devised a scheme in which he created a fictitious company-employer ('Roberts Engineering Co.'), and in the name of that fictitious company-employer, reported earnings for fictitious employees during the times mentioned in the information. At the preliminary hearing, State Department of Employment investigators testified that no company by the name of 'Roberts Engineering Co.' at any of the addresses given by defendant on his claim forms, nor at the addresses listed on the forms purportedly filed by 'Roberts Engineering Co.,' in fact existed at the times mentioned. The investigators further established that they could not find anyone by the name of 'Thomas O. Roberts' at any of the residence addresses listed on the employer's forms. The prosecution produced an apartment manager from one of the addresses listed who said she had a tenant named Thomas Roberts, whom she identified as the defendant. The prosecution further produced three additional witnesses who knew the defendant as Jack Lustman, Ed Lee, and Thomas Roberts, respectively. During the trial, the prosecution placed into evidence a certified copy of a California driver's license in the name of 'John Edward Lee,' imprinted with a photograph of the likeness of defendant, whose true name is Jack Lustman.

Because of the common relationship of certain of the evidentiary facts to certain of the counts, we first deal with Counts I and IX, then with Counts VI and VII, and lastly with Count II.

Count I of the information (charging a violation of Pen.Code § 487(1)) was based upon a fraudulent disability claim presented to the State of California, Department of Employment (hereinafter referred to as Department). On May 17, 1967, defendant filed a claim for disability benefits in the name of Jack Lustman. The application form executed by defendant indicated that he had last worked on November 18, 1966. The Department then forwarded a form to the named last employer, 'Roberts Engineering Co.' (later proved to be a nonexistent and fictitious employer). The Department's form sought wage information and the reason for work stoppage. This form was returned to the Department, signed in the name of the fictitious employer, Roberts Engineering Co., and indicated that defendant had earned $200 during his last full week of work. On June 15, 1967, defendant had forwarded a letter to the Department enclosing a purported copy of his income tax W--2 form showing the same fictitious employer and indicating that defendant had earned $4,400 during the last three calendar quarters of 1966. The Department initially had denied any benefits, but after recomputations based upon the W--2 form, made an award of $1,274, payable at $49 per week. On July 26, 1967, a check for $98 was issued to defendant and forwarded to a Beverly Hills post office box address. A Department investigator observed defendant remove from the post office box the envelope containing the check. The investigator saw the check at the time defendant asked him to read the amount of the check, stating, 'I cannot tell without my glasses.' A subsequent check for $112 was mailed to defendant. Both checks were endorsed and negotiated, and paid by the State of California.

Defendant was subsequently arrested at his apartment. During the search of defendant's apartment, copies of correspondence and the employer's copy of forms in the company name of 'Roberts Engineering Co.' were found.

Count IX of the information (charging a violation of Penal Code section 487(1)) was based upon a fraudulent unemployment insurance claim submitted to the State of Nevada by defendant in the name of 'Ed Lee.' Since defendant was in California at the time of submission of this claim, the California Department processed the claim forms for the State of Nevada, as an agent for Nevada. On March 13, 1967, the Nevada Department of Employment Security received a claim form which had been processed by the Santa Monica office of the California Department, requesting unemployment insurance benefits and showing 'Roberts Engineering Co.' as the former employer; this was signed by 'Ed Lee' as the claimant-employee. This claim was refused on March 20, 1967 on the basis that there was no record of wages filed with the State of Nevada. On March 20, 1967, a request for reconsideration was filed, together with an executed dependency questionnaire, signed by 'Ed Lee.' Accompanying this request for reconsideration was a W--2 form indicating wages earned and paid in Nevada to 'Ed Lee' by 'Roberts Engineering Co.' On the basis of the W--2 form, Nevada changed the benefit payable from zero to $1,066.

On August 8, 1967, a Department investigator saw defendant submit an interstate claim form (used to obtain unemployment benefits from Nevada) at the Santa Monica office of the Department, which form bore the signature 'Ed Lee.' (This was the same investigator who had seen defendant remove the disability-benefits check bearing the name 'Jack Lustman' from the Beverly Hills post office box on July 26, 1967.) This investigator then followed defendant to the Department's disability office.

The State of Nevada received 20 additional interstate claims bearing the signature 'Ed Lee,' and pay warrants by the State of Nevada were issued on these claims. In all, Nevada paid 24 claims in the amount of $61 each and one claim in the amount of $59, by warrants issued to 'Ed Lee.' During a portion of the period in which defendant was receiving unemployment insurance benefits from the State of Nevada, he was concurrently receiving disability benefits from the State of California. ¹

Defendant testified during the trial and admitted receiving unemployment and disability benefits from the State of California and the State of Nevada, but claimed that he attempted to return the amounts received from California, unsuccessfully. Defendant stated he could not recall the exact dates of his employment and layoffs because he had been the victim of a criminal assault just prior to the trial and had sustained a head injury, causing his memory to be faulty.

The forgery counts (VI and VII) of the information were based on two Nevada warrants made payable to 'E. Lee' and endorsed on the reverse side 'Ed Lee.' On April 24, 1967, defendant presented to the Automobile Club of Southern California a Nevada warrant payable to, and endorsed, 'E. Lee,' to be applied against an installment loan account in the name of 'J. A. Lustman.' On July 24, 1967, defendant presented a Nevada warrant payable to and endorsed 'E. Lee' to the Southern California Savings and Loan Association for deposit to an account in the name of 'Ed Lee.' Defendant personally signed a withdrawal slip with the name 'Ed Lee' in the presence of the teller, and the signatures on the warrant and the withdrawal slip were similar.

Count II of the information, (charging a violation of Penal Code section 487(1)) was based upon a fraudulent unemployment insurance claim submitted to the California Department of Employment. On January 5, 1965, an employer's registration form was filed by 'Thomas O. Roberts,' doing business as 'Roberts Engineering Co.' at 601 South Vermont Avenue, Los Angeles, California. Subsequently, quarterly reports for the quarters ending September 1965, December 1965, March 1966, and June 1966 were filed, signed by 'T. O. Roberts.' The quarterly report for September 1965 indicated that 'Roberts Engineering Co.' had one employee, Jack Lustman, and that he had been paid $1,000 during that quarter. The subsequent quarterly reports indicated that there were no employees for the period from October 1965 through June 30, 1966. A quarterly report for the quarter ending September 1966 indicated that 'Roberts Engineering Co.' had gone out of business. On February 28, 1966, defendant filed a claim in the name of Jack Lustman (his true name), indicating that the last day he had worked was August 6, 1965. The Department granted an initial benefit of $500, payable at $40 per week. On March 14, 1966, a request for reconsideration was filed by 'Jack Lustman,' based upon an assertion that he had earned $1,800 instead of $1,000 during the third quarter of 1965. A verification form was sent to 'Roberts Engineering Co.,' which was returned to the Department, indicating that $1,800 in wages had been paid to defendant. As a result of this information, the benefit payable to defendant was increased to $900, payable at $65 per week. For the period March 12, 1966 through April 30, 1966, defendant received eight pay orders in the amount of $40 each. On May 9, 1966, four additional pay orders were issued, one for $5, and three for $65 each. Subsequently, six additional pay orders were...