People v. Ruster, Cr. 12525

• Decision Date: 27 January 1975
• Docket Number: Cr. 12525
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Donald RUSTER, Defendant and Appellant.

Page 10

119 Cal.Rptr. 10

44 Cal.App.3d 873

PEOPLE of the State of California, Plaintiff and Respondent, v. Gary Donald RUSTER, Defendant and Appellant.

Cr. 12525.

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

Jan. 27, 1975.

For Opinion on Hearing, see 129 Cal.Rptr. 153, 548 P.2d 353.

Jimmie E. Tinsley, San Francisco (Court-appointed), for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

ARATA, ^* Associate Justice (Assigned).

Defendant Gary Donald Ruster appeals from judgments of conviction entered on jury verdicts finding him guilty of grand theft (count 1) and forgery (counts 2-14). Count 15 of the indictment charged the defendant with perjury but was dismissed during the course of the trial. The facts upon which the indictment was founded may be summarized as follows: On the afternoon of January 19, 1972 defendant presented a weekly questionnaire form to an attendant at the Human Resources Development (HRD) office in San Jose, establishing his eligibility for unemployment insurance; this form was completed and signed in the name 'Gary Roster,' social security No. 549940478. Upon presentation of the questionnaire he was given a pay certification card for $65 which defendant signed as Gary Roster and took to a cashier's window in the same office. A counter supervisor of HRD noticed that defendant appeared to resemble a photograph posted on the office bulletin board as one wanted by the department for questioning concerning possible violations of the Unemployment Insurance Code; the supervisor instructed the cashier to stall the defendant until he could summon a department investigator. While defendant was still at the cashier's window, but after he had received the $65, the investigator approached defendant and identified himself as an investigator. Thereupon defendant turned and ran toward the exit. He was apprehended inside of the building, taken to an office and questioned by the HRD investigator. After receiving identification material from the defendant he was asked 'why he was running.' To this defendant replied, 'I don't know, scared, I guess' or something similar. Then defendant volunteered this statement: 'How did you catch me so soon?' The defendant was detained at the HRD office until the arrival of police about ninety minutes subsequent to his detention. The identification received by the department investigator was a California driver'a license in the name of Gary Donald Ruster, a Teamsters card in the name of Gary Ruster showing his address as Local 85, San Francisco, and a social security card bearing No. 564560708. Defendant was questioned for less than an hour while awaiting arrival of the police; during this time he was advised of his constitutional rights and signed a 'Miranda waiver' (there is no Miranda issue on this appeal). During the questioning at the HRD office the investigator noticed nothing unusual or abnormal in the appearance of the defendant nor in his ability to respond to the questions.

At the police station defendant was again warned as to his constitutional rights and further questioned. During the police interrogation, lasting about an hour, defendant appeared nervous, high-strung and short of breath; the latter appearing to the officer as approaching a state of hyperventilation. The officer attempted to put defendant at ease by removing his handcuffs, words of reassurance and providing a paper bag, a commonly known aid to relieve hyperventilating persons. The attempt to relieve the hyperventilation preceded the questioning. The officer's general description of the defendant's demeanor and appearance during the questioning was stated by him as being rational, though scared, but no more scared than four or five hundred others that he had questioned under similar circumstances. During this interrogation defendant gave consent to a search of his automobile. In the trunk of the automobile the police found a tool-box containing nine manila envelopes each bearing a different name and social security number, with indications of dates and times at which appearances were to be made at various HRD offices where claims had been filed. Each envelope contained literature and cards issued by HRD. Some but not all of the envelopes indicated that payments in varying amounts had been paid on the claims indicated. Through the lead of a social security number found on one of these envelopes it was discovered that the various names on the envelopes were names of students at the University of California Medical School who had never filed claims for unemployment insurance. The defendant was booked on the day of his arrest and later freed on bail. ¹ On March 22, 1972, a search warrant was issued out of Santa Clara County directing search of defendant's automobile, home and an attached garage in San Mateo County. The alleged location of the home was based upon information given by defendant at the time of his arrest concerning his place of residence, later verified by independent investigation. In the resultant search various documents were seized and later introduced in the trial as Exhibits 58 through 82. These exhibits are generally described as Teamsters' cards and papers bearing various names other than Ruster, various documents bearing varying social security numbers, blank Teamsters' cards, blank Treasury Department applications for social security cards, a California driver's license in the name of David Samuel Livingston bearing defendant's photograph and his true home address, and items of correspondence from HRD addressed to names other than Ruster or Roster and also addressed to post office boxes.

Testimony offered at the trial on behalf of the People included proof that the defendant had received thirteen payments of $65 each under the name of Gary Roster, between May 11, 1971 and September 21, 1971; that the defendant had signed the weekly questionnaire cards preliminary to said payments as Gary Roster; that as Gary Ruster defendant had received $1,400 unemployment benefits from April 1970 to August 30, 1971 under a different social security number. At the trial defendant offered no evidence except upon diminished capacity, choosing not to testify on his own behalf. As revealed in counsel for defendant's opening statement the commission of the unemployment insurance frauds charged was admitted but was attempted to be excused as the product of 'self-destructive compulsion' as described by counsel and the psychiatric defense testimony; in other words, as is emphasized by appellant on this appeal, the defense of irresistible impulse. The perjury charge which was dismissed by the court during trial, as above indicated, involved an affidavit made by defendant to qualify him for the services of the public defender.

Appellant Was Improperly Convicted Under Penal Code Sections 470 and 484

Appellant's first contention is that penalties for all unemployment insurance fraud offenses have been codified into Unemployment Insurance Code sections 2101-2113, ² and that therefore it was improper to prosecute and convict defendant under the general provisions of Penal Code sections 470 and 484. This contention was recognized as valid in principle in 1951 in the case of People v. Haydon, 106 Cal.App.2d 105, 234 P.2d 720, where the court decided that predecessor legislation on the subject of punishment for unemployment insurance fraud as found in the Unemployment Insurance Act (Stats.1935, ch. 352, p. 1226; amended Stats.1943, ch. 1111, p. 3051) repealed pro tanto general provisions of the Penal Code. In 1953 the Legislature incorporated the Unemployment Insurance Act into a new statute creating the Unemployment Insurance Code (Stats.1953, ch. 308, p. 1457 et seq.); in this transition the former section 101(a) of the act, as interpreted in Haydon, became, without any substantial change, section 2101 of the code. In arriving at its decision the court in Haydon stressed two principles: 1) legislative intention, i. e., it was apparent that the Legislature intended that all unemployment insurance offenses be prosecuted under the act so that, as misdemeanors, a portion of the fines would go into the unemployment fund (106 Cal.App.2d at p. 108, 234 P.2d 720); and 2) the rule of clemency, which requires the imposition of the less severed penalty where it is imposed by the later of two statutes covering the same offense (106 Cal.App.2d at p. 111, 234 P.2d 720). ³ Whereas the previous provisions regarding the disposition of the fines has been changed by enactment of the code, such money still insures to the fund for the cost of administration of the program (Unemp.Ins.Code, §§ 1558, 1585); therefore the rationale of the Haydon decision is still applicable to this case. ⁴ The rule of People v. Haydon has been followed in People v. Koch, 4 Cal.App.3d 270, 84 Cal.Rptr. 629 and People v. Bogart, 7 Cal.App.3d 257, 86 Cal.Rptr. 737.

Respondent urges that People v. Haydon is not applicable in this case because as interpreted in People v. Lustman, 13 Cal.App.3d 278, 91 Cal.Rptr. 548, the rule applies only to attempts. A careful reading of Haydon clearly establishes that its decision was not confined to attempts; the facts as recited in the first paragraph of the opinion state that the defendant 'received payment' on the fraudulent claim. It is therefore our opinion People v. Lustman should not be considered as controlling in the case at bench. Respondent also relies on People v. Dale, 239 Cal.App.2d 634, 49 Cal.Rptr. 253 as being critical of the rule of People v. Haydon. We accord People v. Dale no weight as an authority because its reference to Haydon is not only dictum, having previously held the appeal from the guilty plea to be without merit under the rule of People v. Adamson, 34 Cal.2d 320, 326, ...