People v. Parker

• Decision Date: 22 September 1970
• Docket Number: Cr. 4025
• Citation: 89 Cal.Rptr. 815,11 Cal.App.3d 500
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Arthur PARKER, Defendant and Appellant.

Page 815

89 Cal.Rptr. 815

11 Cal.App.3d 500

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Arthur PARKER, Defendant and Appellant.

Cr. 4025.

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

Sept. 22, 1970.

Hearing Denied Nov. 18, 1970.

[11 Cal.App.3d 502] Arthur E. Cooper, Long Beach, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Michael R. Botwin, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

KAUFMAN, Associate Justice.

Defendant was charged by information with three counts of forgery (Pen.Code, § 470) and two prior felony convictions. After trial by jury, he was found guilty as charged, probation was denied and he was sentenced, on each count, to state prison for the term prescribed by law, the sentences to run concurrently. Defendant appeals from the judgment of conviction.

Contentions

Defendant makes the following contentions: (1) the court erred in failing to exclude certain evidence seized by the police in an unlawful search of defendant's motel room; (2) the court prejudicially erred in striking evidence of defendant's repayment in connection with count III; and (3) the evidence is insufficient to support the conviction, because defendant's conduct did not constitute forgery.

The Facts

A. Defendant's Employment with the California Veterans Post.

Walter Baxter was the owner and publisher of a Riverside newspaper named the 'California Veterans Post.' He solicited advertising through the use of salesmen who were paid on a commission basis. Salesmen were authorized to deduct the amount of their commission from any payment made by a customer in cash, but they were not authorized to endorse or negotiate any check made payable to the newspaper by a customer. To facilitate telephone solicitation, it was not uncommon for salesmen to use names other than their true names. Sometimes salesmen worked in pairs.

Mr. Baxter had placed an advertisement seeking salesmen. Defendant answered the ad and was employed by Baxter on or about June 4, 1966. Defendant worked one day. He used the name 'Bill Fry.'

Several days later, defendant telephoned Mr. Baxter and informed him that he had sold an ad and that Baxter would be receiving the check therefor in the next few days. The check arrived, and Baxter paid defendant his commission. Thereafter, Baxter had no further communication with defendant, but in about September 1966, another person, Jack Teller, applied for a job as an advertising salesman and indicated that he would be working with a partner. Mr. Baxter issued to Teller for the alleged partner an extra identification card in the name of William F. Martin. Baxter never saw or heard from Teller again, but subsequently, as hereinafter set forth, defendant made use of this identification card.

B. Count I: The Happy Wanderer Check.

On the morning of February 9, 1967 defendant telephoned Mr. Ford, the co-owner of the Happy Wanderer Travel Agency in Barstow. He indicated to Mr. Ford that he represented the California Veterans Post and offered him six advertisements in the newspaper for $25. He received from Mr. Ford a check in that amount made payable to the California Veterans Post and gave Mr. Ford a receipt.

That same morning defendant went to the Top Hat Delicatessen in Barstow and asked Mr. Truel Delote, a part-time employee of the delicatessen, if he would cash the Happy Wanderer check. Mr. Delote knew the maker of the check. He asked defendant for identification, and defendant produced the identification card in the name of William F. Martin. In the presence of Delote, defendant endorsed the check by printing the name 'California Veterans Post.' When asked for further endorsement, defendant printed 'W. F. Martin' on the check. Mr. Delote gave defendant $25 and endorsed the check with a rubber stamp.

After defendant left the delicatessen, as soon as Mr. Delote was free of customers, he telephoned the maker and inquired about the check. He then telephoned the police. Defendant had told Mr. Delote that he was staying at the Desert Inn Motel in Barstow, and Mr. Delote thereafter telephoned defendant and asked him to come in, repay the $25 and pick up the check. This defendant did. As will appear, this check was later found by the police in a search of defendant's motel room.

C. Count II: The Barstow Liquid Gas Check.

On the same morning, February 9, 1967, defendant similarly obtained a $25 check from Mr. Leonard Myers, the owner of Barstow Liquid Gas Company, for advertising in the California Veterans Post. The check was made payable to the California Veterans Post.

At approximately 11 a.m., defendant went to Ted Hallett's Union Gas Station in Barstow and asked Mrs. Maxine Hallett if she would cash the check signed by Mr. Myers. She saw that it was a check from the Barstow Liquid Gas Company, a nearby business establishment, and asked for no identification. Defendant gave no identification. Mrs. Hallett agreed to cash the check, and defendant took the check outside to Mr. Enriquez, an employee of the gas station, who cashed the check. The check was endorsed 'California Veterans Post,' but neither Mrs. Hallett nor Mr. Enriquez saw defendant endorse the check.

Defendant then left the station and, about five minutes later, returned in an automobile with another person. Defendant then purchased $10.75 worth of gasoline and oil, for which he requested and received a receipt from Mr. Enriquez.

At approximately 3 p.m. on the same day, Mr. Myers came into the gas station. When he discovered that defendant had cashed the check, Mr. Myers gave Mrs. Hallett $25 and picked up the check. He then telephoned the police. Myers turned the check over to the police the next day, February 10, 1967.

D. Count III: The B & L Check.

At approximately 3 p.m. on the same day, February 9, 1967, defendant obtained a check in the amount of $25 from the B & L Beverage Company in Barstow under the guise that it was a donation to the Veterans of Foreign Wars. The check was made payable to 'V.F.W.'

Defendant was staying at the Desert Inn Motel, and on the same afternoon, he asked Mr. Burnette, the manager, if he would cash the B & L check. Mr. Burnette agreed to do so, and defendant endorsed the check 'V.F.W.' Mr. Burnette asked defendant to sign his name to the check, and defendant wrote 'W. F. Martin.' Mr. Burnette gave defendant the cash and stamped the check with a rubber stamp. Defendant had no authorization from the Veterans of Foreign Wars to solicit funds nor to endorse its checks.

Later in the day, Mr. Burnette spoke to Mr. Delote at the Top Hat Delicatessen, where defendant had cashed the Happy Wanderer check. After this conversation, Mr. Burnette asked defendant to reimburse the money and pick up the check. Mr. Burnette testified that defendant had subsequently repaid the $25. This testimony of repayment was stricken by the court on the ground that it was irrelevant and immaterial. Inasmuch as defendant was arrested shortly after 9:30 p.m. on February 9, prior to the promised repayment, and in view of the fact that the police obtained possession of the B & L check from Mr. Burnette on the night of the arrest, it is clear that this repayment occurred after defendant's arrest.

E. The Circumstances of Defendant's Arrest and the Search of His Room.

On February 8, 1967, defendant had registered at the Desert Inn Motel. He placed two names on the register, one of which was W. F. Martin, and requested a room with twin beds. The motel manager never saw the other person.

On February 9, at approximately 9:30 p.m., the police arrived at the motel. In the lobby of the motel, in the presence of the motel manager and another officer, Detective James King talked with defendant about the B & L check made payable to the 'V.F.W.' He asked defendant if he represented the V.F.W. in Barstow. Defendant replied that he did. Detective King then asked defendant the name of the Commander of the V.F.W. in Barstow. Defendant replied that he did not know. Defendant also did not know any of the members of the V.F.W. in Barstow. Detective King then stated that he had some friends who were members of the V.F.W. and asked defendant what they might have to say about defendant's cashing a check made payable to the V.F.W. Defendant said 'okay, you got me, you got me, you got the check, what else do you want, are you going to arrest me for forgery?' King replied, 'No, not yet, I want to look into it a little further.'

King then asked defendant whether he had cashed a check at the Top Hat Liquor Store. Defendant replied with a question, 'Did they say that I did,' to which King replied, 'Yes, they did.' Defendant said, 'Well, you have it, you ought to know.' This, of course, was the check which defendant had picked up from Mr. Delote, and the officer did not have it. Detective King asked defendant where the check was, but defendant did not answer.

Defendant kept insisting that he be arrested for forgery, and became boisterous. Detective King placed him under arrest for investigation of forgery and advised him of his rights pursuant to Miranda. After being so advised, defendant stated that he understood his rights and was willing to talk. Defendant acted as if he had been drinking but also as if he understood the questions being asked him, and his answers were responsive although somewhat evasive.

Defendant was placed in a police car and taken to the Barstow Police Department where he was further questioned by Detective King in King's office. About 15 minutes after defendant was arrested, King returned to the motel, contacted the manager and went with the manager and another police officer to defendant's room, which was on the ground floor of the building, the same as the lobby, and about 150 feet from the lobby. Detective King then searched the room. The record is silent as to how entry was effected. It...