People v. Miller

• Decision Date: 11 January 1961
• Docket Number: Cr. 7256
• Citation: 188 Cal.App.2d 156,299 P.2d 243,10 Cal.Rptr. 326
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey MILLER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 326

10 Cal.Rptr. 326

188 Cal.App.2d 156

PEOPLE of the State of California, Plaintiff and Respondent, v. Harvey MILLER, Defendant and Appellant.

Cr. 7256.

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

Jan. 11, 1961.

Hearing Denied March 8, 1961.

P. Basil Lambros and Samuel Z. Winnikoff, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., Doris H. Maier and John F. Foran, Deputies Atty. Gen., for respondent.

FORD, Justice.

The defendant was convicted of the crime of grand theft. Pen.Code, § 487, subd. 1. He has appealed from the judgment and from the order denying his motion for a new trial.

It is asserted that there was prejudicial error in the manner in which inquiry was made as to a prior conviction of a felony in the course of the cross-examination of the appellant. It is further contended that the evidence was not sufficient to sustain the conviction. It is, therefore, necessary to summarize the evidence.

Dorothy Grace Quinn was the person whose property was alleged to have been the subject of the theft. About March 20, 1959, she moved into a duplex on Ventura Boulevard which she had rented. Mr. Paonessa represented the owner, Mr. Capponi. Shortly thereafter she met the appellant when he was constructing some stairs on the premises for the owner. He asked her if she was interested in buying the property. She said that she was but she did not think she would have enough cash for the down payment. The appellant said he thought he could get it for her for a $700 or $800 down payment on a total price of $8,500. He said he was representing the owner. After several conversations, on April 6, 1959, at his request she gave him a down payment of $250 by means of a check payable to his order. He prepared the check and she signed it. On the back thereof, he wrote and signed a statement to the effect that it was a deposit for the purchase of the property at a price not exceeding $8,500, subject to the approval of the owner. Several days later, he told the witness that everything had been arranged, that she was to give him the balance of the down payment, that he could have the papers brought to her, and that it was 'set up' for escrow. He said he had talked to Mr. Capponi. The appellant was then given her check dated April 8, 1959, made to his order for $500. Her sister went with him to the bank on that date to have it cashed. When he was given the check, the appellant wrote on the back of his business card and signed a statement as follows: 'Received from Dorothy Quinn $500.00 which I am holding as balance of down payment on 11154 Ventura Blvd.' He brought her no escrow papers thereafter but did bring a piece of writing paper that appeared to have Mr. Capponi's signature on it. It was therein stated that the price was $8,700 and that there would be no escrow and no termite inspection. She would not accept such terms and the appellant said he would take the paper back and get it straightened out. Within a day or two he returned with Mr. Paonessa. The latter said she still had $500 to pay. She replied that she had already given that to the appellant. Mr. Paonessa said he had not received it. The appellant took her to one side and told her, 'Please do not tell Mr. Paonessa that you have given me any money yet.' She refused his request because the money should be in his hands. On another occasion, both Mr. Capponi and Mr. Paonessa came to see her. Later the same day the appellant came alone and told her that he had spent the money and was very sorry but that he would try to make restitution. That was about August 14, 1959. The appellant was arrested the next day. Of the money that the appellant received from her, only $225 was transmitted to Mr. Capponi. She never bought the property but was given credit for $225 on the rent.

On cross-examination, the witness said that on the day she rented the house Mr. Paonessa talked to her about buying the property but she did not think she had enough cash for a down payment. Mr. Paonessa told her that he was representing Mr. Capponi. She gave Mr. Paonessa cash for the rent for the first month but thereafter paid her rent directly to Mr. Capponi by check. When the appellant first talked to her about the property at her restaurant, he told her he had heard she was interested in buying the property. He said he thought he could work out a deal with Mr. Capponi; that they were very good friends; that he had worked for Mr. Paonessa for 15 years; and that he was sure he could get the property for around $8,500, with a down payment of about $750, if she could 'come up' with that much money. He did not say he was a representative of the owner. Aside from the $225 credited on her rent, the appellant had given her back a total of $175, $125 having been given to her a day or two before the trial. The appellant was going to build a new building on the property. She had seen plans for such construction but she never ordered the plans. A Bob McKay came to see the property with the appellant and she told him she wanted no building done on the property until it was in her name. She did not retain the appellant to build a retaining wall, although he did build one. He did not present her with a bill for the wall. On one occasion, when she thought the deal was going to be completed, she made a loan of $50 to the appellant 'to pay his help.' She gave him that because he had the wall built when she got up that morning. She told him, 'All right, I will advance you $50 and if this deal goes through then that will come out of your commission for selling the property * * *.'

Antonio Capponi testified that he owned the property involved and that Mr. Paonessa was managing it for him while he was sick. He himself received nothing from the appellant as a deposit on the property. The appellant never talked to him about selling the property; he never agreed to sell it and did not want to dispose of it. But he did sign a receipt for $225 when Mr. Paonessa asked him to do so. That receipt contained the following language: 'Received from Mrs. Quinn $225.00 as deposit on house on premises 11154 Ventura Blvd. Studio City, Calif. Sale price $8,700.00 Payable $225.00 now, $525.00 on or before April 25, 59[;] buyer takes property subject to 1st TD. [trust deed], payable to Bank of America in an approximate amount of $3,400.00. $4,600 Seller to take back a trust deed for 2 years payable 1% per month on principal, at 8%. Escrow to close on August 10, 1959.' Mr. Paonessa introduced him to the appellant. Mr. Paonessa told him that he had a sale of the property to Mrs. Quinn.

Ada I. Dellinger, the sister of Mrs. Quinn, testified that the appellant said he believed that, 'being friends,' he could obtain the property for Mrs. Quinn with a small down payment. On one occasion he said, 'If I have some money I will go over and discuss it with them.' He further said, 'If I have something to offer him maybe we can get it.' When she asked him about the $500 which had been given him, he stated that he had spent it. The appellant showed her a floorplan which, he said, he had had a freind make; the witness' sister never ordered it. The witness identified a paper as the one which the appellant brought when he came in the company of Mr. Paonessa. ¹ The paper was dated about April 13, 1959. About that time she saw the plans which the appellant brought. On the plans was the date of April 14, 1959.

Ralph D. Paonessa, an attorney at law, testified that during March and April he was managing the property for Mr. Capponi. About April 13 or April 14, the appellant approached him and wanted to know if Mr. Capponi would sell the property. The witness said that he thought that Mr. Capponi did not want to sell the property but, perhaps, he might consider it if he received cash. The appellant said that Mrs. Quinn was interested in buying it. Thereafter he gave the witness $255 as a deposit on the property. The witness believed that the date of his receipt was April 14, 1959. Thereafter, Mr. Paonessa told the appellant that Mr. Capponi did not want to sell the property. The appellant never gave $500 to Mr. Paonessa. Prior to April 13, the appellant asked the witness to draft a form of a letter which the Quinns could use if they wanted to buy the property; the witness did so. This was before the witness received a deposit of $225; the appellant was going to get a deposit and the witness told him to take it subject to the approval of Capponi. At the time the witness went with the appellant to see Mrs. Quinn, he did not know that she had given $750 to the appellant. He further testified: 'I never gave him authority to sell the property, but after the receipt was made for $225, I took the matter up with him and I said 'Mr. Capponi, you are a sick man. Why don't you dispose of it?' That was my suggestion to him.' The witness gave the appellant no authority to accept the $500. On cross-examination, the witness said that about the first part of April he told the appellant of Mrs. Quinn's interest in the purchase of the property. He said to the appellant that, when they went into escrow, he should have cash because Mr. Capponi did not like checks. He believed he made a similar statement as to the down payment. The witness had known the appellant for about 15 years and had 'represented him in a few matters.' Around April 11 or 12, the witness told the appellant that Mr. Capponi might take about $8,700 for the property.

Thomas L. Rogers, a police officer for the city of Los Angeles, testified that the appellant told him that the had spent the money he had obtained from Mrs. Quinn. The officer said that he thought the appellant stated he had lost it in Las Vegas.

Gerald G. Cohen, a police officer for the city of Los Angeles, talked to the appellant on August 14, 1959. The appellant said that he kept the money which he had obtained from Mrs. Quinn. He further said that he did not have permission from anyone to...