People v. McCann
| Decision Date | 12 April 1965 |
| Docket Number | Cr. 1647 |
| Citation | 233 Cal.App.2d 561,43 Cal.Rptr. 789 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Bonnie McCANN, Defendant and Appellant. |
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jack K. Weber, Deputy Atty. Gen., for plaintiff and respondent.
The defendant appeals from a conviction involving six 'bad checks.' An information charging her and her husband with these offenses, i. e., violations of Penal Code & 476a, was in three counts; the first thereof involved one check in the sum of $90; the second thereof involved three checks totaling $64.41; and the third thereof involved two checks totaling $75. The husband pled guilty and the defendant pled not guilty. Trial by jury was waived. By stipulation, the People's case was submitted on the preliminary transcript. Following such, the defendant moved for a dismissal, which was denied. Thereupon, she put on her defense which, in substance, was based upon the claim that she acted in the premises under the command, coercion, and threats of her husband. (See Pen.Code § 26, subds. 7 and 8.) The trial judge found the defendant guilty on all counts; suspended imposition of sentence; and placed her on 10 years' probation, with a 30 day jail sentence condition.
The defendant presents fourteen questions on appeal which, when analyzed, are resolved into six issues, to wit:
(1) Sufficiency of the evidence to sustain the conviction;
(2) Alleged errors in the admission of evidence on cross-examination of the defendant and her husband;
(3) Alleged errors in rulings respecting her defenses (4) Whether more than one felony was committed;
(5) Whether the period of probation was excessively harsh; and
(6) Whether the rule announced in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, requires a reversal.
The attack upon the sufficiency of the evidence to support the charges against the defendant asserts an alleged lack of proof that she had aided and abetted her husband. The prosecution contended the defendant was responsible as an aider and abettor, and also as a co-conspirator. The court found the defendant guilty under both theories.
Prior to the offenses in question the husband had been convicted and placed on probation because of previous bad check charges. Among other terms of probation he was required to remain in Los Angeles County; to refrain from opening a bank account; and not to have any blank checks in his possession. The defendant knew of these terms of probation. She and her husband moved to San Diego without consent of the probation officer of Los Angeles County. Shortly thereafter she opened bank accounts in three banks, each for a small amount, i. e., $3.50, $5.00 and $5.00; used her maiden name in doing so; gave a different fictitious address at each bank; obtained blank checks from the banks in question; and gave them to her husband. She claims that she opened these accounts, obtained these checks, and gave them to him because he commanded her to do so, and threatened to kill her, himself, and her children if she refused. Contemporaneously the husband opened bank accounts in two other banks.
The charge in Count 1 involved a $90 check bearing the signature 'Lawrence Hillman', a fictitious person, payable to the husband and endorsed by him. The blank check used for this purpose was one of those obtained by the defendant when she opened one of her accounts and bore the number assigned to that account.
The charge in Count 2 involved three checks. One was in the sum of $24.41; was signed by the defendant; was drawn on a bank in which the husband had opened an account; and the check used was a counter check furnished by the payee, which was filled in by the husband before being signed by the defendant. Another check in this count was for the sum of $20; was signed by the husband; and was drawn upon a bank in which he had opened an account. The third check in this count was in the sum of $20; was signed by the husband; was drawn on a bank in which the defendant had opened an account; and was on a check obtained by the husband, bearing her account number.
The third court involved two checks. One was in the sum of $25; was signed by the husband; was drawn on a bank in which the defendant had opened an account; and was upon a check obtained by the defendant, bearing her account number. The other was in the sum of $50; was signed by the husband; and drawn on an account opened by him.
In addition to the evidence heretofore noted, establishing actual participation by the defendant in some of the offenses set forth in the information, it also appeared that she had accompanied her husband on all of the occasions when each of the foregoing checks was issued and passed, although on some of them she was not in the immediate presence of the payee.
Under the circumstances aforesaid, evidence that the defendant obtained and gave her husband blank checks which he used in the commission of the offenses involving those checks is sufficient to sustain the finding of the court that she aided and abetted him in committing those offenses (Generally see People v. Barker, 53 Cal.2d 539, 542, 2 Cal.Rptr. 467, 349 P.2d 73; People v. Pedesclaux, 216 Cal.App.2d 1, 5, 30 Cal.Rptr. 574; People v. Ellhamer, 199 Cal.App.2d 777, 781, 18 Cal.Rptr. 905; People v. Koomer, 188 Cal.App.2d If it be assumed that, by analogy, the provisions of § 1118 of the Penal Code authorized the trial court to acquit the defendant upon her motion to dismiss after presentation of the People's case for insufficiency of the evidence, the denial of that motion was not error because at this juncture the evidence was not insufficient to warrant a conviction. (Generally see People v. Faber, 29 Cal.App.2d Supp. 751, 758-759, 77 P.2d 921.)
676, 678-680, 10 Cal.Rptr. 607); and evidence that she signed the counter check described in Count 2 is sufficient proof of her participation in the offense involving that check. The finding of the trial court that the defendant was guilty of these offenses is supported by substantial evidence.
Over objection, the defendant and her husband were cross-examined by the district attorney with respect to passing other checks. A review of the transcript indicates that the cross-examination was proper, and the court did not err in permitting such. The basis for the objection made was that the cross-examination exceeded the scope of the direct examination. However, several issues were raised by the examination in chief, including the alleged coercion of the defendant by her husband, her knowledge of his operations, her resistence thereto, and her intent in the premises, all of which justified the cross-examination in question. (People v. Aquilante, 208 Cal.App.2d 530, 536, 25 Cal.Rptr. 344.) There was no violation of the rule against self-incrimination. As a further contention respecting this matter, the defendant claims that the examination in question was directed to issues other than those raised by the evidence in the preliminary transcript; that her waiver of a jury trial was conditioned upon a limitation of the trial to the issues thus raised; and that it was error not to confine the trial by the court to those issues. The record establishes that defendant's waiver of a jury trial was not so conditioned and, as heretofore noted, the cross-examination did not exceed the scope of the direct examination presented by her. No error appears.
The defendant also contends that the evidence establishes, as a matter of law, that she acted in the premises upon the command, under the coercion and in fear of her husband, and that, for this reason, her conduct was not criminal. This contention disregards, among other things, the fundamental rule on appeal in favor of the judgment requiring this court to assume the trial court rejected the testimony in support of this defense. The record supplies ample legal reason for refusing to believe such testimony. (People v. Acosta, 45 Cal.2d 538, 542, 290 P.2d 1; Miller v. Johnson, 214 Cal.App.2d 123, 125, 29 Cal.Rptr. 251.) In this regard the defendant further contends that there is a presumption that she was acting under the command or coercion of her husband within the meaning of § 26, subd. 7 of the Penal Code. However, this section relates only to misdemeanors. The offenses of which the defendant was convicted were felonies.
Upon submission of the case, the trial judge expressed his views in the premises and, among other things, stated: Using this statement as a basis for her contention, the defendant claims that the trial court imposed upon her the burden of establishing her 'defense of duress and coercion,' and in making its decision disregarded the rule that evidence which raises a reasonable doubt of a defendant's guilt requires his acquittal even though it does not establish his innocence. (See People v. Long, 15 Cal.2d 590, 605, 103 P.2d 969.) The statement by the trial judge was not directed to the degree of proof...
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Watkins, In re
...In re Dick, supra, 'particularly where it disapproves People v. Kennedy (210 Cal.App.2d 599 (26 Cal.Rptr. 696)) and People v. McCann (233 Cal.App.2d 561 (43 Cal.Rptr. 789)).' The Kennedy and McCann cases, however, were disapproved only with respect to the manner in which they dealt with the......
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Dick, In re, Cr. 9536
...total to $85. The judgment was reversed as to the third as well as the first and second counts. In the later case of People v. McCann, 233 Cal.App.2d 561, 43 Cal.Rptr. 789, a defendant was charged and convicted in three counts with violations of section 476a; in the first count with issuing......