People v. Sullivan

• Decision Date: 24 July 1962
• Docket Number: Cr. 33
• Citation: 23 Cal.Rptr. 558,206 Cal.App.2d 36
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Tony Ernest SULLIVAN, Defendant and Appellant.

Page 558

23 Cal.Rptr. 558

206 Cal.App.2d 36

The PEOPLE, Plaintiff and Respondent, v. Tony Ernest SULLIVAN, Defendant and Appellant.

Cr. 33.

District Court of Appeal, Fifth District, California.

July 24, 1962.

Hearing Denied Sept. 11, 1962.

Stanley Mosk, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Barry L. Bunshoft, Deputy Atty. Gen., Sacramento, for respondent.

Tony Ernest Sullivan, appellant in pro. per.

BROWN, Justice.

The defendant was charged in Fresno County with two counts of passing forged instruments--the first count for $31,626, and the second count in the sum of $18,600. He was also charged with two prior convictions--one for grand theft for which he served a term in San Quentin; and an insufficient funds conviction in Kern County for which he served a term in Los Padres. He was arraigned, pleading 'Not guilty' to both counts.

At the trial on October 30 and 31, 1961, he waived his right to counsel, instead electing to represent himself. He had previously dismissed two court-appointed attorneys, Messrs. Ara Ohanesian and Tom Okawara. The jury found him guilty of both counts. He waived referral of the case to the Probation Office, and was thereupon denied probation and sentenced to imprisonment in the California State Prison. Defendant has appealed from the judgment of conviction.

The defendant attempted to open two checking accounts and two savings accounts at the State Center Bank in San Joaquin, tendering for deposit two checks in the amounts hereinabove referred to drawn on the Pismo Beach Branch of Bank of Anerica, where he had no account. He was informed that the State Center Bank would have to send the checks to the Pismo Beach Branch of Bank of America for collection before he could draw checks on the accounts, and the bank manager gave him a collection receipt for each check. Immediately prior to his attempting to open these accounts he had given a $3700 check drawn on the State Center Bank to an automobile agency at Arroyo Grande, and a check to his landlady for $510 on November 14, 1960, which she tried to collect on November 23, 1960.

The checks for $31,626 and $18,600, signed with the name 'H. E. Ward,' as maker, were forwarded for collection and ultimately were returned, marked 'Unable to Locate Account.' Said H. E. Ward and the defendant had conducted business relations years ago for a period of three months. Mr. Ward had had an account at the Pismo Beach Branch of Bank of America as administrator of his grandfather's estate in 1937, and a personal account up to 1951 or 1952.

On November 21, 1960, because of information received from the automobile dealer about the $3700 check, the Chief of Police of Arroyo Grande found defendant in Morro Bay and questioned him there. Then he placed defendant under arrest for investigation of fictitious checks. The defendant told the Chief that he had deposited certain checks in San Joaquin, produced the collection receipts, and claimed that he used the name of Ward as an alias. The Chief having taken defendant to the County Jail in San Luis Obispo, booked him and while in the restroom, the defendant flushed the two collection receipts down the toilet.

How the appellant was going to cover the checks which were deposited in the State Center Bank drawn on the Pismo Bank is not clear. There is no evidence of his intent to deposit the alleged cashier's checks in the Pismo Bank except that he said he planned to put these cashier's checks in an account which he intended opening at that bank.

In the trial defendant admitted signing the name of Ward to the two checks, but argues that since he used the name 'H. E. Ward' as an alias only, he did not forge the signature of the true H. E. Ward. He said that he had used the name 'Ward' since 1939 to prevent his estranged wife from attaching his bank accounts. He testified that he had an account in an Arizona bank under that name; that he had had two cashier's checks in his possession at the time he was arrested and that what he flushed down the toilet at the San Luis Obispo County Jail were the two cashier's checks. Defendant refused to tell the court and the jury the name of the bank of origin of these cashier's checks, or the amounts thereof.

In reviewing defendant's opening brief, which is really not a brief at all, we note that he makes many claims. He states that the judge failed to inform the jury that he was charged with forgery with intent to defraud Mr. Ward and others; that he was denied witnesses in his behalf; that he was denied a copy of the transcript of a previous partial trial which he wanted in order to show that certain of the witnesses were committing perjury, but that he now has a copy of the portion which was transcribed; that the information sent to the Department of Corrections was false; that he wanted the full statement that he gave to Mr. Smith and Mr. Clapp in front of Mr. McKillop, a court reporter in Fresno, read to the jury, but that only picked parts of it were read to 'dirty the friends of the jury.' He further states in his brief that he had a sanity hearing against his will; that he was found sane; that Municipal Judge Hoffman told him he would dismiss the charges providing defendant would pay what they asked him to; that he was arraigned again before Municipal Judge Andreen; that he was refused his witnesses; that he was taken before Superior Judge Popovich and charged with two prior convictions of which he claims he was falsely convicted to which he pleaded 'Not guilty' but that the judge falsely entered in the record that he made a plea of 'Guilty' to these prior convictions; that he was refused his witnesses in the trial before Superior Judge Kellas; that he was illegally sent to Atascadero State Hospital; and that he was falsely and illegally represented by attorney Tom Okawara. He also wants the Department to have all of the records brought before our court.

Many of defendant's complaints relate to matters outside the record before us. Others fail to present issues which may be determined on appeal. They are, therefore, devoid of merit and do not justify discussion. The charges of error which we will consider may be synopsized as follows: (1) that the trial court erred in not instructing the jury that 'intention to defraud' is an element of the crime of forgery; (2) that the trial court abused its discretion by refusing to subpoena certain witnesses requested by defendant; (3) that the trial court abused its discretion in denying defendant a copy of the transcript of a previous partially-completed trial; (4) that the defendant was prejudiced by improper conduct of counsel; and (5) that the defendant did not admit his prior convictions.

The reporter's transcript shows that the clerk of the court did properly read to the jury the information on both charges, each of which stated that the defendant wilfully and unlawfully, with intent to defraud the parties, passed a forged instrument.

1. Review of Claimed Error in Trial Court's Giving Instructions. With regard to defendant's contention that the trial court failed to correctly instruct the jury on the element of intent to defraud, the same will not be reviewed by the appellate court unless these instructions are included in the record on appeal. (Southern Pacific R. R. Co. v. Superior Court, 105 Cal. 84, 38 P. 627; Thomas v. Laguna, 113 Cal.App.2d 657, 660, 248 P.2d 929.)

Rule 33 of the California Rules of Court covers this point. The defendant's notice of appeal contains no request nor motion to augment the record. As this record fails to contain any instructions, it will be presumed that the jury was fully and fairly instructed by the trial court and that there was no error in giving the instructions. (Alexander v. McDonald, 86 Cal.App.2d 670, 671, 195 P.2d 24.)

2. Defendant's Witnesses. At a hearing prior to the trial, defendant requested the issuance of a subpoena for a Ford dealer from Arroyo Grande. This subpoena was issued and the Ford dealer did testify. During the trial defendant requested a second witness to be subpoenaed, his landlady, and the court ruled that the landlady's testimony was not relevant to the issue of intent to defraud, but did order the District Attorney to issue the subpoena. This witness did not testify as defendant did not know her address and the District Attorney could not locate her. It is not the duty of the District Attorney or public officials to locate, or assist an appellant in locating, a witness whose address is unknown to appellant. (People v. Bailey, 91 Cal.App.2d 578, 580, 205 P.2d 418.)

Later on, defendant wanted a subpoena issued addressed to an F. B. I. agent who was supposed to have given him certain advice as to what to do about turning the money over to the F. B. I. or that defendant did not have to turn the money over, and his request for a subpoena was refused by the court on the grounds that this testimony would be irrelevant.

'The crime of forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud.' (People v. McKenna, 11 Cal.2d 327, 332, 79 P.2d 1065; People v. Hawkins, 196 A.C.A. 939, 944, 17 Cal.Rptr. 66; Penal Code, § 470.) Testimony which might indicate that defendant had sufficient funds to cover the check in question is irrelevant to the issue of false making with intent to defraud; and testimony that any third party advised him not to disclose the whereabouts of alleged funds, the third party having no personal knowledge that the funds existed, is even more irrelevant. This would have been an error only if defendant could show that the witnesses could offer relevant and material testimony. (In re Finn, 54 Cal.2d 807, 8 Cal.Rptr. 741, 356 P.2d 685.) There is nothing in the record to show that defendant requested additional or further subpoenas or had any refusal of the same by the court, nor did he ask for any other witnesses.

Def...