People v. Neder

• Decision Date: 20 April 1971
• Docket Number: Cr. 18107
• Citation: 94 Cal.Rptr. 364,16 Cal.App.3d 846
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Felix David NEDER, Defendant and Appellant.

Page 364

94 Cal.Rptr. 364

16 Cal.App.3d 846

The PEOPLE of the State of California, Plaintiff and Respondent, v. Felix David NEDER, Defendant and Appellant.

Cr. 18107.

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

April 20, 1971.

Hearing Denied June 17, 1971.

Richard H. Levin, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., Geoffrey S. Cantrell, Deputy Atty. Gen., for plaintiff and respondent.

REPPY, Associate Justice.

Defendant, Felix David Neder, was charged by information with three counts of forgery (Pen.Code, § 470) and with a prior felony conviction for robbery. Involved were Sears sales invoices for $18.90 (count I), 22.04 (count II), and $44.05 (count III). After a plea of not guilty and submission upon the transcript of the preliminary hearing, defendant was found guilty as charged as to all three counts. He was sentenced to county jail for 180 days on each count, the sentences to run concurrently.

Sears had issued to Miss Vera Gruskin two credit cards. She kept one in her wallet and the other, unsigned, in a jewelry box in her room.

On April 4, 1969, codefendant, Mariquita Dene Fish, accompanied by defendant, used Gruskin's credit card with Gruskin's name printed on the front and signed on the back to make purchases from three clerks at a Sears store. Codefendant gave Margaret Flores, a clerk, the card to purchase a dress. Mrs. Flores wrote up an invoice sales slip and imprinted the card on it. Codefendant signed the slip. Defendant was with her throughout.

Neal Smith, another clerk, saw defendant and codefendant selecting merchandise. They purchased men's garments, a bush jacket, a high-fashion jacket, and two men's scarves. Codefendant presented the card to smith, Smith imprinted it upon an invoice sales slip, and codefendant signed the slip. During a lengthy wait for approval of the card by the credit department, defendant spoke about the sale to Smith.

Defendant and codefendant purchased five pairs of men's pants, all the same size, from a third clerk, Carol Whitmore. Mrs. Whitmore showed defendant the parcel and told him the price. Defendant said, 'She's the one with the money' (referring to codefendant). Codefendant presented the credit card, Mrs. Whitmore imprinted the card upon an invoice sales slip, and codefendant signed the slip.

Miss Gruskin, after having been advised that someone had been using a Sears credit card of hers, discovered that the credit card she kept in her jewelry box was missing. She identified the card used to make the above sales as hers.

The signature on the back of the card and the signatures on the three invoice sales slips, although stating her name, were not hers. She had not given any one permission to sign and use her credit card and did not know who had done so.

Defendant contends on appeal that:

1. The evidence was insufficient to support the judgment of conviction.

2. Only one crime was committed and punishment on all three counts was a violation of Penal Code section 654.

3. It was error to prosecute him under Penal Code section 470 as opposed to Penal Code section 484f.

4. His rights were violated by the submission of the case on the transcript of the preliminary hearing by trial counsel.

5. He was denied adequate representation by counsel.

I. Sufficiency of the Evidence.

Unless it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion below, a judgment of conviction will not be reversed on appeal for insufficiency of the evidence. (People v. Redmond, 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) The evidence in the instant case is sufficient to support a conviction on the theory of aiding and abetting.

To aid and abet means to instigate, encourage or aid with guilty knowledge of the wrongful purpose of the perpetrator. (People v. Flores,269 Cal.App.2d 666, 669, 75 Cal.Rptr. 231.) Although mere presence at the commission of a felony by another is insufficient to prove aiding and abetting, presence is evidence for consideration in determining guilt. (Id.)

In People v. Flores, Supra, a conviction was sustained where the evidence showed that the defendant, knowing that the codefendant, his sister-in-law, was unemployed, drove her to and from an aquarium supplies store, there selected tropical fish for purchase, stood two feet behind the codefendant as she used a stolen credit card to make the purchases and sign the name of the card owner, carried out the purchases, and later told the store owner that the aquarium supplies purchased were for him.

In the instant case, defendant accompanied codefendant as she made the purchases, and he participated in their selection. Most of the purchases were men's clothing; all of the trousers were the same size. Defendant was with codefendant as she handed the credit card to the clerks and signed Miss Gruskin's name. He talked about the sale with a clerk while waiting for the credit department's approval of the card. Defendant, on one occasion, directed the clerk to codefendant for payment. These circumstances are sufficient to support the inference that the men's garments were being purchased for him and that defendant was well aware of the unlawful means by which the merchandise was being obtained and encouraged and aided codefendant's illegal conduct.

II. Three Separate Punishable Offenses were Committed.

Defendant contends that the three acts of forgery were part of a single plan and therefore constituted a single offense under People v. Bailey,55 Cal.2d 514, 11 Cal.Rptr. 543, 360 P.2d 39. The import of this contention seems to be that he could properly be convicted of only one, as opposed to three, counts of forgery.

Normally, separate acts, whether violating one or more than one statute, are separate offenses, and it makes no difference that the identical statute is violated with the same victim. (1 Witkin, Calif. Crimes, Elements of Crime, § 74, p. 76; see People v. Sanders, 103 Cal.App.2d 200, 229 P.2d 76.)

It has been held that the forgery of several documents at the same time and in the course of one transaction constitutes a separate offense for each instrument. (People v. Gayle, 202 Cal. 159, 162--163, 259 P. 750 (defendant convicted of six separate forgeries where he forged three checks and three contracts that corresponded to the checks); People v. Cline, 79 Cal.App.2d 11, 19--21, 179 P.2d 89 (defendant held guilty of eight separate forgeries where he forged four copies of an affidavit of loss and four copies of an indemnity bond to obtain replacement of one stock certificate).) There would more clearly be separate offenses here, where each forgery was of a separate sales slip for the purchase of different goods from different sales clerks.

Defendant, however, relies on the doctrine developed in theft whereby several takings may constitute one offense. In cases involving theft (by larceny, false pretenses, or embezzlement), where several takings are motivated by 'one intention, one general impulse and one plan,' the entire transaction is held to be a single crime. (People v. Bailey, 55 Cal.2d 514, 518--520, 11 Cal.Rptr. 543, 546, 360 P.2d 39, 42.) Thus, it was held that one offense of grand theft was committed where defendant charged merchandise six times to a fraudulently obtained charge account. (People v. Robertson, 167 Cal.App.2d 571, 576--577, 334 P.2d 938. See also Pen.Code, § 484g providing that where charges on a stolen credit card over a six-month period exceed $200, one offense of grand theft is committed; otherwise, the offense is petty theft.)

In the instant case it is probably true that the forgeries were motivated by a preconceived plan to obtain merchandise from Sears by use of Miss Gruskin's credit card and by forging sales slips. However, we do not feel that the Bailey doctrine should be extended to forgery. That doctrine was developed for the crime of theft to allow, where there is a common plan, the accumulation of receipts from takings, each less than $200, so that the taker may be prosecuted for grand theft as opposed to several petty thefts. ¹ The essential act in all types of theft is taking. If a certain amount of money or property has been taken pursuant to one plan, it is most reasonable to consider the whole plan rather than to differentiate each component part. (See Dawson v. Superior Court, 138 Cal.App.2d 685, 689, 292 P.2d 574.) The real essence of the crime of forgery, however, is not concerned with the end, i.e., what is obtained or taken by the forgery; it has to do with the means, i.e., the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud. Theft pursuant to a plan can be viewed as a large total taking accomplished by smaller takings. It is difficult to apply an analogous concept to forgery. The designation of a series of forgeries as one forgery would be a confusing fiction. ²

Defendant also relies on Penal Code section 654, as interpreted in Neal v. State of California, 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839. That section provides:

'An act or omission which is made punishable in different provisions of this Code may be punished under either of such provisions, but in no case can it be punished under more than one.'

Although section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section, the basic principle it enunciates does. (Neal v. State of California, Supra, 55 Cal.2d 11, 18, fn. 1, 9 Cal.Rptr. 607, 357 P.2d 839.) ³

Section 654 has been applied not only where there has been one act, but also where there has been an indivisible course of conduct. It was held in Neal, supra, at page 19, 9 Cal.Rptr. at page 611, 357 P.2d at page 843, that '(w)...