People v. Mason

• Decision Date: 15 February 1968
• Docket Number: Cr. 12688
• Citation: 66 Cal.Rptr. 601,259 Cal.App.2d 30
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Bryant MASON, Defendant and Appellant.

Page 601

66 Cal.Rptr. 601

259 Cal.App.2d 30

The PEOPLE, Plaintiff and Respondent, v. William Bryant MASON, Defendant and Appellant.

Cr. 12688.

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

Feb. 15, 1968.

Rehearing Denied March 5, 1968.

Hearing Denied April 10, 1968.

William A. Crim, under appointment by the Court of Appeal, and defendant in pro. per., for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Mark W. Jordan, Deputy Attys. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendant was charged in four counts with forgery of a check for $128 with intent to defraud (Pen.Code § 470), forgery of a fictitious name on two checks, in the amount of $51 each, with intent to defraud (Pen.Code § 470), issuing a check without sufficient funds with intent to defraud (Pen.Code § 476). Defendant was also charged with a prior conviction of forgery, a felony, on September 11, 1951, and two other prior convictions of forgery, both felonies, on March 31, 1956, and March 24, 1958.

Defendant pled not guilty to each count and denied each prior. Defendant moved to have the cause transferred to federal court, which was denied. Defendant moved to be relieved of counsel and he proceeded in Propria persona. Proceedings were suspended pending determination of removal proceedings in the United States District Court. When those proceedings resulted in an order of remand, the case was again placed on the calendar of the state trial court. After a trial by jury, defendant was found guilty on all counts and the jury found 'the alleged prior felony' to be true. A motion for a new trial was made and denied, probation was denied, and defendant was sentenced to state prison on all four counts, the sentences being ordered to run concurrently.

Defendant has appealed from the order denying his motion for a new trial and from the judgment. We dismiss the attempted appeal from the order denying a new trial, since that order is not appealable (Pen.Code § 1237); we affirm the judgment.

Defendant went to the police station to report that certain checks had been stolen. At a later date, the police received some checks with defendant's name on them, and defendant was contacted. Defendant claimed he knew nothing about it and offered to submit a handwriting exemplar. On July 18, 1963, defendant filled out a handwriting exemplar for Detective Smith of the forgery detail. Defendant offered to fill it out, he was not in custody at the time, he was not under arrest, nor was he a suspect on a criminal charge; he filled the card out voluntarily.

On October 23, 1963, Norman Fisher, a friend of Mrs. Harrell, gave her a check for $128 purportedly signed by Carl Gordon payable to defendant and endorsed by defendant. Mr. Fisher told her that defendant gave him the check. The check was deposited and came back. Carl Gordon did not sign the check nor did he give anyone permission to sign. Defendant worked on Mr. Gordon's books.

On October 23 defendant gave William Otto, a mechanic, two $51 checks payable to defendant, purportedly signed by J. Mortimer Casper. Defendant endorsed the checks and he gave defendant cash.

On December 23 defendant gave a $129 check payable to deSilva and Company, signed by defendant as maker, in return for merchandise. The check was returned marked 'insufficient--account closed.'

Detective Smith was unable to find any Carl Gordon other than the one he was already acquainted with, nor was he able to find anyone named J. Mortimer Casper or Lasper.

An auditor for Security First National Bank found no checking account for William Bryant Mason. An operations officer for the United California Bank found no credit arrangement for J. Mortimer Casper, or Lasper, and found no arrangement for honoring the check of Carl Gordon.

William Bowman, a handwriting expert, formed the opinion that the handwriting on all four checks was the same as the endorsement of William Bryant Mason, and the same as the signature exemplar card.

Defense counsel, and defendant in his in pro. per. brief, assign numerous errors.

I

Defendant's counsel asserts that there was an improper waiver of counsel because the court failed to inquire into the matter of defendant representing himself. The record reveals that the court made an inquiry, asking the defendant if he was appearing without counsel. When defendant said 'yes' the court asked defendant if he would like to have the public defender represent him. The defendant said, 'No, I would not, your Honor.' Then the court again asked defendant if he refused the public defender, and defendant again refused. The total interrogation was brief and it shows no effort on the part of the trial court to ascertain either that defendant was aware of the problems that he would face, or that defendant was capable of self-representation. ¹ On the face of that record, it would appear that the trial court had not fulfilled its duty and that the waiver was ineffective. ² However, we now have before us the reporter's transcript of the trial, together with numerous petitions and motions filed by defendant in propria persona in this court and in the Supreme Court, as well as in the federal proceedings hereinafter discussed. From these documents, it seems clear that defendant was, in fact, aware of the nature of the proceedings in which he was involved and that he was an capable as any layman is likely to be of representing himself. It follows that the error in not conducting a full inquiry was not prejudicial and that we now know that the waiver of counsel was freely and intelligently made.

II

Defendant contends that the prior offenses were not properly before the jury and that, in any event, they were not properly presented to the jury.

Since defendant had denied the priors as alleged, the entire information, including the allegations with reference to prior offenses may properly be read to the jury (Pen.Code § 1093), and the issue raised by the denial must be submitted to and determined by the jury. (People v. Hoerler (1962) 208 Cal.App.2d 402, 25 Cal.Rptr. 209; People v. Kingsbury (1945) 70 Cal.App.2d 128, 160 P.2d 587.)

However, the trial court, in performing its duty of reading the information to the jury, after reading the four charging counts, read to the jury only those portions of the information relating to two of the three alleged priors--namely alleged convictions on September 11, 1951, and on March 24, 1958; an alleged conviction on March 31, 1956, was not then mentioned. Near the end of the trial the deputy district attorney informed the court that two of the three priors alleged in the information were, actually, misdemeanors and not felonies. The two priors mistakenly pleaded were the first two--the alleged conviction on September 11, 1951, of which the jury had theretofore been advised, and the alleged conviction on March 31, 1956, of which the jury had not theretofore been advised. The trial court thereupon instructed the jury that it was to consider only the alleged 1958 prior. That instruction was in the following terms:

'THE COURT: Ladies and gentlemen of the jury, the Court wishes to advise you that the defendant in the Information before the Court has been charged with the prior conviction of three separate felonies and insofar as the evidence is now concerned, you are only to pass upon whether or not he has been convicted of the one felony under date of March the 24th, 1958, the Court having granted the defendant's motion to dismiss the charges as to the prior--two prior felony convictions, the one of September, 1951, and the one of the 31st of March, 1956.

'So you're to only pass upon the question of his conviction under date of the 24th of March, 1958.'

It is argued that the confusion over the alleged priors was prejudical. We do not agree. While the jury might well have been puzzled by the reference at the close of the trial to a 1956 conviction not previously brought to its attention, still it was told specifically that the only issue before it was that relating to the 1958 conviction. The verdict form submitted related only to one prior and the verdict was in that form. We do not think that the jury was actually confused as to the issue finally submitted to it.

III

In addition to proper instructions on the duty of the jury to pass on the truth of the allegation of the prior felony, the trial court instructed it (in accordance with CALJIC No. 54--B), as follows:

'The fact that a witness had been convicted of a felony, if such be a fact, may be considered by you (for only one purpose, namely,) in judging the credibility of that witness. The fact of such a conviction does not necessarily destroy or impair the witness's credibility, and it does not raise a presumption that the witness has testified falsely. It is simply one of the circumstances that you are to take into consideration in weighing the testimony of such a witness.'

No other instruction on the effect of a prior felony conviction was given nor, so far as the record discloses, requested.

It is now argued that the court should also have given CALJIC No. 33, or a similar instruction, to the effect that prior offenses were only to be considered by them for the limited purpose of showing identity, common scheme or design, or motive. Not only is defendant foreclosed from raising the point on appeal by reason of his failure to request such an instruction in the trial court, but we can see no basis for it in the record. All that we know of the prior offense is that it was for forgery. There is nothing in the record that would have suggested that that conviction shed any light on defendant's guilt of the offenses for which he was on trial. While, under these circumstances, it would have been proper for the trial court, had it been requested so to do, to have instructed the jury, in terms, that they should not consider the alleged prior at all on the issue of guilt, we can see...