People v. Norwood

• Decision Date: 19 June 1972
• Docket Number: Cr. 20825
• Citation: 26 Cal.App.3d 148,103 Cal.Rptr. 7
• Court: California Court of Appeals Court of Appeals
• Parties: , 11 UCC Rep.Serv. 118 The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul A. NORWOOD, Defendant and Appellant.

Page 7

103 Cal.Rptr. 7

26 Cal.App.3d 148, 11 UCC Rep.Serv. 118

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul A. NORWOOD, Defendant and Appellant.

Cr. 20825.

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

June 19, 1972.

Hearing Denied Aug. 16, 1972.

[26 Cal.App.3d 151] G. Tom Thompson, Compton, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Charles, P. Just, Kenneth M. Malovos, and Marjory Winston Parker, Deputy Attys. Gen., for plaintiff and respondent.

AISO, Associate Justice.

Defendant Paul A. Norwood and Willie Curtis Andrews ¹ were charged by information with four separate violations of Penal Code section 475a. Counts I and II specified the instrument involved in each of those counts as 'a completed warrant.' The specific pleading of counts III and IV alleged, in part, possession of 'a completed money order . . . with the intent to defraud Frank Gentile and American Express.' A prior robbery conviction was also alleged against defendant.

A court sitting without a jury granted defendant's motion to acquit pursuant to Penal Code section 1118 as to count IV only and denied it as to counts I, II, and III. At the conclusion of the defense case, it found defendant guilty on said three counts. No disposition was made as to the alleged prior felony conviction. ² Probation was denied. Defendant was sentenced to concurrent one year terms in the county jail on the three counts, with credit for time spent in custody (four months) prior to imposition of sentence. Defendant appeals from the judgment.

Defendant contends: (1) the trial court erred in denying his motion under Penal Code section 1118 as to counts I, II, and III; and (2) the evidence is insufficient to support and convictions. This court upon its own motion asked for supplemental briefing on whether a county warrant, such as those introduced in proof of counts I and II, comes within the purview of Penal Code section 475a ³ which specifies only 'a completed check, money order, or traveler's check.' We have concluded that the judgment insofar as counts I and II are concerned must be reversed for the reasons which we shall set forth below, but No Corpus Delicti Under Counts I and II.

that it should be affirmed as to count III. We defer detailed summarization of the evidence until after we dispose of counts I and II on legal grounds and then take up the assignments of error urged by defendant as to his conviction on count III.

We note In limine that we may properly consider whether the corpus delicti of a violation of Penal Code section 475a was established by the introduction of a Los Angeles County 'Auditor Controller's General Warrant' in proof thereof, even though the issue was not raised by defendant either in the trial court or before us. An appellate court may note errors not raised by the parties if justice requires it. (Silber v. United States (1962) 370 U.S. 717--718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798, 799; People v. Renchie (1962) 201 Cal.App.2d 1, 7, 19 Cal.Rptr. 734; People v. Ross (1961) 198 Cal.App.2d 723, 730, 18 Cal.Rptr. 307.) The failure of an accusatory pleading to state a public offense is not waived by a defendant's failure to demur (Pen.Code, § 1012; People v. Smith (1894) 103 Cal. 563, 566, 37 P. 516) or to move in arrest of judgment (People v. Grinnell (1908) 9 Cal.App. 238, 239--240, 98 P. 681). A matter normally not reviewable upon direct appeal, but which is shown by the appeal record to be vulnerable to habeas corpus proceedings based upon constitutional grounds may be considered upon direct appeal. (People v. Bautista (1970) 6 Cal.App.3d 344, 351--352, 85 Cal.Rptr. 688; People v. Glaser (1965) 238 Cal.App.2d 819, 824, 48 Cal.Rptr. 427, cert. den. 385 U.S. 880, 87 S.Ct. 164, 17 L.Ed.2d 107.) If the statute under which a defendant is convicted does not prohibit the conduct proved, a writ of habeas corpus will issue. (In re Zerbe (1964) 60 Cal.2d 666, 668, 36 Cal.Rptr. 286, 388 P.2d 182; In re Bevill (1968) 68 Cal.2d 854, 863, 69 Cal.Rptr. 599, 442 P.2d 679.) A conviction where no evidence supports the offense charged has been held to violate the due process provisions of the Fourteenth Amendment. (Cf. Thompson v. Louisville (1960) 362 U.S. 199, 206, 80 S.Ct. 624, 629, 4 L.Ed.2d 654, 659; Shuttlesworth v. Birmingham (1965) 382 U.S. 87, 93--95, 86 S.Ct. 211, 214--216, 15 L.Ed.2d 176, 180--182.)

We hold as to counts I and II that the essential elements of a violation of Penal Code section 475a were not established. The accusatory pleading specified a 'warrant'; the evidence was a Los Angeles County 'Auditor Controller's General Warrant,' which is not a check, a money order, or a traveler's check explicitly enumerated in the section.

A. The Warrant Not a Check. The pertinent formal portions of the warrant ⁴ read:

                                                        16-66
                                                        -----
                                                        1220
                

"AUDITOR CONTROLLER'S GENERAL WARRANT

COUNTY OF LOS ANGELES

The Treasurer of the County of Los Angeles will pay

to the order of:

                                    Apr 1 1971
                                    Los Angeles, California
                [Name and address of payee filed in]    $161.00
                                                            GENERAL FUND
                         Approved
                

Mark H. Bloodgood Auditor-Controller By

[facsimile signature] J. S. Rasmussen"

In form, this is essentially the same as the warrant set forth in Dana v. City and County of San Francisco (1861) 19 Cal. 486, 491. It was there held that the instrument was not negotiable, only an assignment of a right to funds notwithstanding the words 'to the order of' preceding the payee's name. In essence, the doctrine of a 'holder in due course' was held inapplicable to the instrument. Dona has been followed in California. (See: Bank of Santa Cruz County v. Bartlett (1889) 78 Cal. 301, 303, 20 P. 682; Ser-Vis v. Victor Valley Irr. Dist. (1923) 190 Cal. 732, 740, 214 P. 223; A. G. Spalding & Bros. v. Contra Costa County (1936) 12 Cal.App.2d 262, 264, 55 P.2d 520.) ⁵

The terms 'draft' or 'check' may at times encompass a non-negotiable instrument under the Uniform Commercial Code (§ 3104, subd. (3)), but this warrant nonetheless is not a check. To be a check the instrument must be a draft drawn on a bank and made payable on demand. (Uniform Com.Code, § 3104, subd. (2)(b).) A draft is an order to pay a sum certain in money, signed by the drawer, payable on demand or at a definite time, and to order or bearer. (Uniform Com.Code, § 3104, subds. (1) and (2)(a).) 'An 'order' is a direction to pay and must be more than an authorization or request.' (Uniform Com.Code, § 3102, subd. (1)(b).) 'An instrument which states that it is payable at a bank is not of itself an order or authorization to the bank to pay it unless the bank is the drawee.' (Uniform Com.Code, § 3121.)

The only reference to a bank on the warrant in question is the esoteric symbol 16--66/1220; the denominator (routing symbol) indicating the Los Angeles Federal Reserve Bank by '1220' and the numerator (transit number) indicating that the bank is a Los Angeles bank by '16,' and the specific bank in Los Angeles by '66.' (See 2 Cal. Commercial Law (Cont.Ed.Bar 1964) § 9.11, pp. 160--161.) Just as a serial number on a given check is not considered a part of the instrument in determining its legal nature, the routing and transit code numbers are not to be considered a part of the instrument in resolving its legal incidents. (See Hart and Willier, Essential Attributes of Commercial Paper, 1 N.M.L.Rev. (1971) 479, 494.)

Although it does not define the term 'check-warrant form,' ⁶ Government Code section 53911 empowers a county, among other local governmental entities, to convert such an instrument into a check. ⁷ However, we find no 'direction to the depository of the funds to pay the funds to the order of the payee' nor even the name of the depository on the face of the warrant. The Attorney General has not called our attention to any official document, dehors the warrant, of which we can take judicial notice to ascertain whether the County of Los Angeles has opted to exercise this statutory authorization, nor has he offered to prove such a document upon a remand of the cause to the trial court. This statute, in any event, amounts to legislative recognition that the normal county warrant is not a check.

Applying the foregoing criteria to the warrant in question, we hold that it is not a check.

B. The Warrant Not a Money Order. The term, 'money order,' may encompass non-negotiable as well as negotiable instruments. ⁸ It may be issued by a governmental agency, ⁹ a bank, ¹⁰ or a private person or entity authorized to issue same. ¹¹ The essential characteristic common to all these various types of money orders is that it is purchased for the purpose of paying a debt or to transmit funds upon the credit of the issuer of the money order. At the time of its purchase, the purchaser pays to the issuer the principal amount of the money order and usually also pays a fee to the issuer for the issuance of the instrument or the transmission of the principal amount represented by it. No such consideration was paid by the payee or any other lawful holder to cause the warrant in question to be issued. Lacking this essential characteristic of a money order, we find the warrant not to be a money order.

C. The Warrant Not a Traveler's Check. One glance at the warrant dispenses with the need of further elucidation on this point.

D. Section 475a Restricted to Checks, Money Orders, and Traveler's Checks. Penal Code section 475a specifies only these three types of commercial paper; it contains no omnibus catch-all phrase, such as 'or any instrument for the payment of money.' This is in great contrast with other sections in the same chapter of the Penal Code. For...