People v. Villarino

• Citation: 86 Cal.Rptr. 338,7 Cal.App.3d 56
• Decision Date: 28 April 1970
• Docket Number: 3761,Cr. 3760
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Ralph VILLARINO, Defendant and Appellant.

Page 338

86 Cal.Rptr. 338

7 Cal.App.3d 56

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ernest Ralph VILLARINO, Defendant and Appellant.

Cr. 3760, 3761.

Court of Appeal, Fourth District, Division 1, California.

April 28, 1970.

[7 Cal.App.3d 58] Louis C. Novak, San Diego, under appointment by Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Jimmie T. Tinsley, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

WHELAN, Associate Justice.

This is a consolidation of two appeals by Ernest Ralph Villarino (defendant). The appeal in #3761 is from a judgment imposing sentence following the revocation of probation in an offense involving narcotics. That appeal was taken because probation was revoked following defendant's conviction of forgery in the case in which appeal #3760 was taken. For that reason the appeal in #3760 will first be discussed.

APPEAL IN CASE #3760

Defendant was charged in three counts and convicted of having forged the name of L. E. Eubanks, Jr., in the endorsing of three checks cashed respectively by Geno Ferrante, Gene Spurgeon and James Young; the first two on May 19, 1966 and the third on May 18, 1966.

The check cashed by Ferrante was endorsed in his presence by defendant. As identification, defendant had displayed a California driver's license issued in the name of Eubanks, the number of which Ferrante noted on the bank of the check.

The other two checks had been tendered by a woman. In each case the woman endorsed the check 'Mrs. L. E. Eubanks.' The woman for whom Young cashed the check displayed as identification an Illinois driver's license in the name of Eubanks. Young saw the woman leave the store of which he was manager and get into a yellow Thunderbird car, whose license number (HZX 855) he wrote on the back of the check. A black-haired man had been in the car behind the steering wheel.

As a part of the prosecution's case, Gary Johnson testified that on a certain day he had cashed a check made payable to L. E. Eubanks, Jr. (Johnson check). It had been presented to him the day before by a woman and it bore the endorsement 'L. E. Eubanks'; the woman also endorsed it in Johnson's presence, but he told her he did not have money enough on hand to cash the check. The woman returned the next day and presented the same check, when Johnson cashed it for her. Johnson observed on both days that the woman was pregnant.

Another check, payable to and bearing the endorsement 'E. R. Mendez' and dated May 6, 1966, was cashed in a market. The endorsement 'E. R. Mendez' was by the same hand that placed the first endorsement on the other checks mentioned.

Yet another check was presented by a man on May 18, 1966 to Margaret Nash, who called the drawee bank and was told the check was a stolen check. She then called the police station, but when she had done so the man had left and was seen to get into a 1958 yellow Thunderbird. The check bore the endorsement 'L. E. Eubanks' by the same hand that had placed a like endorsement on the other checks mentioned. The first endorser on all the checks had placed a Reed Street address after the endorsements.

Logan Richard Eubanks, Jr., was a member of the U.S. Navy. In September of 1965 he lost and never recovered a wallet containing his California vehicle operator's license and a similar license issued to him by the state of Illinois. The number of his California license was that taken by Ferrante from the license produced by defendant; the number of his Illinois license was that taken by Young from the license displayed to him when he cashed the check for the woman.

Eubanks had not endorsed any of the checks in question, was not and had never been married, and had never been employed by H. B. Wolff Construction Company, against whose account the checks purportedly were drawn.

From December 1965 until August 1966 defendant was employed by Aeroquip Corporation Robot Plant, of which Harry Foster was manager. Defendant had had issued to him an identification card on which Foster's signature, 'H. Foster,' appeared. Foster had not made any of the signatures 'H. Foster' that appeared on the face of the checks. Those signatures, in the opinion There was expert testimony that the endorsements 'L. E. Eubanks' on the checks cashed by Ferrante, Spurgeon and Young were all by the same hand. The second endorsements, 'Mrs. L. E. Eubanks,' on the checks cashed by Spurgeon and Young were made by one person, but by a different person from the maker of the first endorsements.

of a handwriting expert, had been copied from a genuine signature 'H. Foster' such as appeared on defendant's identification card.

Caroline Villarino was subpoenaed by the People. After having been sworn as a witness, she testified that she was the wife of defendant. Defendant then raised the claim of marital privilege, which was allowed and the witness was excused. The sole purpose of the prosecution in calling her was to have her identify herself as defendant's wife.

Another witness testified that defendant's wife had given birth to a child some four months before the trial, which was in November 1966.

After defendant's wife appeared on the witness stand, Johnson identified her as the woman for whom he had cashed the check.

A 1958 Thunderbird, license #HZX 855, was registered in the name of defendant and his wife.

The handwriting expert gave his opinion that the endorsement 'L. E. Eubanks' on all the checks presented for cashing had been made by defendant, based upon comparisons of the endorsements with known exemplars of defendant's handwriting and signature. The name 'H. Foster' on the face of the checks might have been written by the same hand. All appeared to have been written by a left-handed penman.

DEFENSE WITNESSES

Testimony on behalf of defendant was that of his wife and his sister-in-law.

The testimony of the sister-in-law suggested the possibility defendant's Thunderbird car might have been away from San Diego on May 18 and 19.

Defendant's wife testified she had found the Eubanks wallet and contents; she had also found the blank check forms that were used and had filled in the face of the checks and had signed the name 'H. Foster' thereon; in February 1966 she had met a man named 'Gary,' last name unknown, through a friend named 'Frank,' last name unknown; the exact residence address of each was also unknown; Gary had made the first endorsement 'L. E. Eubanks, Jr.' on the checks that bore that endorsement and the endorsement 'E. R. Mendez' and he had cashed some of the checks, using one of the Eubanks' driver's licenses which she gave to him. Mrs. Villarino was shown a check dated June 3, 1966, made payable to L. E. Eubanks, Jr., signed 'H. Foster' and bearing an endorsement 'L. E. Eubanks, Jr.' with a Reed Street address. That, also, she said, had been endorsed and cashed by Gary.

She had cashed the checks that bore the second endorsement 'Mrs. L. E. Eubanks.'

She was recalled for further cross-examination as to an impeaching statement after the district attorney had once said he had no further questions; and was asked about the prior impeaching statement; she was also asked by the district attorney to sign her own name, the name 'Mrs. L. E. Eubanks,' and the name 'H. Foster' twice, which she did, spelling 'Foster' as 'Forster.'

REBUTTAL

In rebuttal, the handwriting expert stated the endorsement 'L. E. Eubanks, Jr.' and the street address thereunder on the June 3 check clearly were written by a different person than the endorsements on the other six checks. So, also, it appears to us.

He testified further, based upon his examination of the handwriting specimens given in court by Mrs. Villarino, that she had not written the signature 'H. Foster' on any of the checks.

Defendant's sister-in-law testified that Mrs. Villarino, on the day she testified and before testifying, had told the witness:

'* * * she was going to take all the blame for Ernie because she couldn't be without him for any length of time.'

CONTENTIONS ON APPEAL

Defendant's contentions may be summarized as follows:

The district attorney was guilty of prejudicial misconduct in calling defendant's wife as a witness after defense counsel had made it known that defendant would not waive his privilege against her testifying.

Because of that prejudicial misconduct, as a result of which defendant's wife was identified as the woman for whom Johnson had cashed the check, defense counsel had no choice but to call her as a witness in the hope of establishing a defense.

It was error to permit defendant's wife to be asked, over objection, to give samples of her handwriting; and it was error, also, to permit the handwriting expert to use such exemplars, given during the course of trial, for purposes of comparison.

ALLEGED MISCONDUCT OF THE DISTRICT ATTORNEY

Defense counsel, out of the presence of the jury, informed the court that Mrs. Villarino had been subpoenaed by the prosecution, that defendant intended to exercise the marital privilege; ¹ counsel sought a ruling the wife need not respond to the subpoena. The district attorney stated it was not his intention to have Mrs. Villarino do anything more than produce herself as physical evidence and to state whether she was defendant's wife.

The court ruled the witness should appear, and that the privilege should be asserted after she had been sworn.

Defendant cites People v. Solis, 193 Cal.App.2d 68, 13 Cal.Rptr. 813, in which it was held reversible misconduct for the district attorney to call the defendant's wife as a witness in the face of a prior warning there would be an objection. The court in Solis said:

'(I)n the case now before this court the People knew in advance that such procedure would serve no purpose except unfairly to prejudice the appellant. Justice does not consist of the mechanical application of rules of procedure without regard to the circumstances...