People v. Olf

• Decision Date: 22 August 1961
• Docket Number: Cr. 7463
• Citation: 195 Cal.App.2d 97,15 Cal.Rptr. 390
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Irving A. OLF, Sidney N. Floersheim and Sanford Fineman, also known as Sanford Allen, Defendants and Respondents.

Page 390

15 Cal.Rptr. 390

195 Cal.App.2d 97

PEOPLE of the State of California, Plaintiff and Appellant, v. Irving A. OLF, Sidney N. Floersheim and Sanford Fineman, also known as Sanford Allen, Defendants and Respondents.

Cr. 7463.

District Court of Appeal, Second District, Division 2, California.

Aug. 22, 1961.

Rehearing Denied Sept. 15, 1961.

Hearing Denied Oct. 17, 1961.

Stanley Mosk, Atty, Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., of Los Angeles County, Harry Wood, Robert J. Lord, Deputy Dist Attys., Los Angeles, for appellant.

Burke Mathes, Los Angeles, for respondent Sanford Fineman.

Murray M. Chotiner, Beverly Hills, for respondent Sidney N. Floersheim.

James O. Warner, Los Angeles, for respondent Irving A. Olf.

McMURRAY, Justice pro tem.

The People appeal from an order granting respondents' motions to set aside an indictment pursuant to the provisions of Penal Code section 995.

The three respondents here, Irving A. Olf, Sidney N. Floersheim and Sanford Fineman, were charged in the first count of the indictment with the crime of conspiracy in that they conspired to cheat and defraud, to obtain money and property by false pretenses, to violate Penal Code, section 115, and to violate Corporations Code, section 3020(b). In support of this count six overt acts were alleged, five of such acts being violations of Corporations Code, section 3020(b), and the sixth being the holding of a certain conversation.

The second count of the indictment charged only respondent Olf with a violation of Penal Code, section 115, in that he did on October 17, 1958, 'knowingly procure and offer to be filed, registered and recorded, a false instrument, to wit, a verified application for a permit to issue securities, said application being an instrument which, if genuine, might be filed, registered and recorded under the laws of the State of California', and the remaining fourteen counts of the indictment charged respondents Olf and Floersheim with various separate grand thefts committed on dates ranging from November 17, 1957, to December 5, 1958.

Respondent Olf was the president and general manager of Coast Thrift and Loan, herein referred to as 'Coast', a California corporation doing business in Los Angeles County as an industrial loan company. This company secured funds from the public by issuing certificates in the form of savings pass books and used these funds largely to buy conditional sales conracts accompanied by promissory notes. Among the customers of Coast were Pacific Appliance Company, herein called 'Pacific', which was operated by respondent Fineman and California Merchants Investment Corporation, herein called 'CMI', of which respondent Floersheim was the president.

Upon a motion to set aside an indictment under Penal Code, section 995, it is incumbent on the trial court to sufficiently scrutinize the transcript of the proceedings before the grand jury to determine whether there is some legally admissible evidence to support the indictment. As is said in Lorenson v. Superior Court, 35 Cal.2d 49, at page 55, 216 P.2d 859, at page 863: 'An indictment is but an accusation, presented by the grand jury to a competent court, charging a person with a public offense. Pen.Code, sec. 917; Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713.'

The grand jury by the provisions of Penal Code, section 939.8, is enjoined as follows: 'The grand jury shall find an indictment when all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury.'

The mere fact that some incompetent evidence is received by a grand jury does not authorize the setting aside of an indictment if there is evidence otherwise sufficient to support the indictment. People v. Nathanson, 134 Cal.App.2d 43, 284 P.2d 975. In other words, where there is a total absence of evidence to support a necessary element of the crime charged, the indictment will be held to be invalid for that reason. McFarland v. Superior Court, 88 Cal.App.2d 153, 198 P.2d 318. The indictment may be set aside where there is no probable cause to believe the defendant guilty of the crime charged, but in this respect it must be remembered that '[p]robable cause is shown if a man of ordinary caution of prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citation.] An indictment will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.' Bompensiero v. Superior Court, 44 Cal.2d 178, 183, 281 P.2d 250, 254. On such a motion a court may not substitute its judgment as to the weight of the evidence for that of the grand jury. Lorenson v. Superior Court, supra, 35 Cal.2d 49, 216 P.2d 859.

With these rules in mind, a study of the record before this court reveals that although some hearsay evidence may have been received by the grand jury, there is sufficient evidence to support its indictment as to all of the counts excepting Count II thereof. The respondents vigorously contend that there is no admissible evidence to support the indictment.

The record submitted to this court is not a model for future grand jury proceedings nor motions under section 995 of the Penal Code. The transcript of the proceedings before the grand jury is apparently a photostatic copy of the original transcript, which has in places been heavily underlined and marred by marks made with a dark pencil, in many cases almost obliterating the words originally reproduced in typewriting.

The burden which is placed upon a trial court under Penal Code, section 995, is one which requires the court to so scrutinize the questioned record before it, whether it be an information or an indictment, as to ascertain whether there is any admissible evidence which supports the action of the magistrate or the grand jury, as the case may be. Where there is a heavy burden upon busy criminal trial courts, it is apparent that many of such motions can be determined by the district attorney directing the court's attention to specific, concise testimony which supports the charge. However, where, as here, the court determines that an information must be set aside, it is incumbent upon the court to read the entire transcript of the proceedings before the grand jury to determine whether or not there is any evidence which will support that body's determination that a crime has been committed, always bearing in mind the fact that only probable cause must appear. The fact that the trial judge feels, perhaps correctly, that the evidence in the grand jury transcript will not result in an ultimate conviction of the defendants can have no bearing upon his legal responsibility to uphold an indictment if, as is said in Bompensiero v. Superior Court, supra, 44 Cal.2d at page 183, 281 P.2d at page 254: '* * * there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.'

The respondents contend that much of the evidence before the grand jury was inadmissible as being hearsay, and that certain documentary evidence was not only hearsay as to certain of the respondents, but was also objectionable since it was merely a photo copy of the original hearsay documents and, therefore, was also inadmissible.

At the grand jury proceedings, several bankers testified as to various bank records held by them which were photostatic copies of original sheets, deposit slips and checks in the custody of the particular bank. Objection is made that there is no foundation showing that these were business records, and that, in any event, they were hearsay. This contention is without merit since the documents from the files of the respective banks were admissible under the Business Records statute, Code of Civil Procedure, sections 1953e and 1953f. It has been said that: 'The purpose of this act [Code Civ.Proc., § 1953f] is to enlarge the exception to the hearsay rule, to eliminate the necessity of calling as a witness each person who had personal knowledge of the facts recorded, and to substitute the record of the transaction or event.' Cole v. Ames, 155 Cal.App.2d 8, 17, 317 P.2d 662, 668. Here there was testimony before the grand jury identifying the signatures on the various documents as the signatures of the respondents, and the other records produced, as they were, by officers of the several banks would certainly appear to justify the inference that these were business records and not some sort of private memoranda Kept by the witnesses. At the trial of the action, there is no doubt that a better foundation would be laid for the introduction of such exhibits than was laid at the proceedings before the grand jury, but the failure to establish a technical foundation for their admission before that body does not render such exhibits inadmissible. Copies of checks and records of CMI were also introduced, supported by testimony that they had been furnished by Floersheim to one of the witnesses who was a corporation examiner for the Division of Corporations of the State of California. Many of these checks bore the endorsement of respondent Olf on the reverse side and thus would not be subject to the objection that they were hearsay as to him.

The objection that the photostatic copies were not admissible does not appear to be well founded since they appear to be admissible under the Uniform Photographic Copies of Business and Public Records as Evidence Act. (Code Civ.Proc. §§ 1953i and 1953k.) Also certain photostatic copies of the records of a savings and loan association were admissible under the provision of section 1953i of the Code of Civil Procedure in connection with an escrow for the purchase of certain property by respondent Floersheim. Furthermore, the Corporations Commissioner had examined...