Callan v. Superior Court

According to Gregoriev, he received the quitclaim deeds in the following manner: He advertised for tax delinquent properties in San Francisco newspapers. The persons who eventually became the grantors on the quitclaim deeds contacted him by telephone or mail. All were in San Francisco. They would agree to accept amounts varying from $25 to $100 for their interest in the property. He would mail the quitclaim deed to them as directed, always to a hotel or in care of general delivery. He never personally met any of the 8 grantors. He paid them by sending cash by mail, was not furnished with any telephone numbers by them, and retained no correspondence bearing on the transactions. Gregoriev admitted in the above statement that he told Callan about the receipt of each deed and usually how much he had paid for it. He stated that the purpose of the conveyance of the several parcels of land to United States Mortgage Corporation was to clear the title, although he was unable to recall how the grant deed in question happened to be prepared by the attorney who did so. He stated that “ [t]o a degree” he and Callan were working together to acquire the property and that it could be said that it was for them a joint venture.

Gregoriev, although appearing before the grand jury, claimed his constitutional privilege against self-incrimination. He did, however, testify that Michael Aaronson, an attorney at law, had represented him in connection with real estate matters and waived the attorney-client privilege existing between himself and Mr. Aaronson so that the latter could testify.

Mr. Aaronson, who is one of Callan’s present counsel in the instant matter, thereupon testified that he prepared for Gregoriev the deed by which the latter conveyed the parcels of land to United States Mortgage Corporation. His law firm,

The defendant Callan appeared before the grand jury. He stated that he and his brother were the sole officers, directors and stockholders of United States Mortgage Corporation. He testified that the action to quiet title was commenced, as we have indicated above, only as an accommodation to Gregoriev, that he, Callan, paid nothing to Gregoriev for the latter’s conveyance to United States Mortgage Corporation and that there were no financial arrangements of any nature between them. He loaned Gregoriev $200 for attorney’s fees in connection with the quiet title action. He also admitted notarizing the quitclaim deeds, although the grantors named therein did not personally appear before him. He received preliminary title reports on some of the parcels before Gregoriev executed the grant deed to United States Mortgage Corporation. Callan’s testimony also showed his activity in contacting persons who appeared to have some interest in 2 of the 20 parcels. In one instance he was apparently instrumental in obtaining a deed to Gregoriev from certain heirs of a deceased' owner whose title had not been cleared. In another instance, he sought to have the person claiming an interest contact Mr. Aaronson.

Eight witnesses who had some interest in 10 of the parcels, some of whom were not owners of record, also testified before the grand jury. All of them stated that they had never heard of any of the persons designated as grantors in the quitclaim deeds to Gregoriev. Three of them stated that they had been contacted by Callan or his attorney relative to a possible sale of their interest. They refused the offers.

Petitioner’s principal attack on the first 20 counts of the indictment is on the ground that, as a matter of law, the

The testimony therefore supports a reasonable belief that the defendants entered into an agreement having for its object the acquisition of the parcels of land involved. As stated in Lorenson v. Superior Court, supra, 35 Cal.2d 49 , 57-58: “Direct proof of a formal understanding between parties to the conspiracy is not required as the basis of an indictment or information. ‘ [i]t was not necessary for the State to prove that the parties actually came together, mutually discussed their common design, and after reaching a formal agreement set out upon their previously agreed course of conduct. The extent of the assent of minds which are in-, volved in a conspiracy may be, and from the secrecy of the crime usually must be, inferred by the jury from the proofs of the facts and circumstances which, when taken together, apparently indicate that they are parts to the same complete whole. (People v. Jones, 136 Cal.App. 722 [ 29 P.2d 902 ] ; People v. Benenato, 77 Cal.App.2d 350 [ 175 P.2d 296 ].)’ (People v. Burton, 91 Cal.App.2d 695 , 708 [ 205 P.2d 1065 ].) ”

However there is no competent evidence in the record as to what the defendants intended to do with the property after the quiet title action had been brought to a conclusion. The statements made by Gregoriev, in the absence of Callan, to various members of the district attorney’s staff were hearsay as to Callan and therefore incompetent evidence. Statements made by one defendant outside the presence of his co-defendant, not in furtherance of the alleged conspiracy and, after consummation or frustration of the conspiracy are hearsay as to the latter. (People v. Gilliland (1940) 39 Cal.App.2d 250 , 262 [ 103 P.2d 179 ] ; People v. Roberts, supra, 40 Cal. 2d 483 , 489.) Statements of a conspirator which are not made in furtherance of the conspiracy are not admissible against his coconspirator. (See 4 Wigmore, Evidence (3d ed.) § 1079; Witkin, California Evidence, p. 264.) Gregoriev’s statements were not in furtherance of the conspiracy; they were undoubtedly made after the conspiracy had been frus

At this point we take up the competing arguments of the parties. Callan contends that the evidence furnishes no rational ground for assuming the commission of the offense charged. It is his position that the above scheme which we have outlined cannot constitute a conspiracy to commit grand theft since one “cannot steal property by a forged instrument.” In support of this proposition he cites People v. Nye (1929) 96 Cal.App. 186 [ 273 P. 837 ] and People v. Dadmun (1913) 23 Cal.App. 290 , 294 [ 137 P. 1071 ], Petitioner obviously refers to that portion of the opinion in People v. Nye dealing with a count in an information charging grand theft of certain deeds. The court held that since the deeds were obtained by fraud and there was neither delivery nor passage of title, they were worthless and could not be made the basis of a charge of grand theft. People v. Dadmun, involving an indictment charging grand larceny of a deed, held that the deed being undelivered was not a written instrument within the meaning of section 492 of the Penal Code and could not be a subject of larceny. Such eases offer no solution to the problem before us.

Respondent seeks to uphold the indictment on two bases: (1) That it does not accuse Callan of conspiracy to commit grand theft of real property but simply to commit grand theft. The forged deeds, when placed of record, so runs this argument, constituted a “public false pretense” and operated as a continuing inducement to persons interested in the property, ultimately being the means of obtaining money from the eventual purchasers. (At oral argument respondent presented for the first time the claim that the forged deeds also constituted a false pretense to the court from which, as part of their plan, the alleged conspirators would obtain a judgment under the McEnerney Act. Respondent has not cited, nor have we been able to find, any authority in support of this last point. We need not give it further attention.) (2) That the indictment and the transcript of the grand jury testimony, when examined together, indicate that the subject matter of the theft alleged in each count is the particular parcel of real property described in the overt acts alleged

In Bradford v. Trapp, supra, 49 Cal.App. 493 , upon which respondent relies, the defendants Trapp purchased real property and received a deed to it, which was forged but which they believed to be valid. After the defendants entered into possession, they commenced an action and obtained a judgment under the so-called McEnerney Act, pursuant to proceedings in all respects regular and in conformity with the statute. In an action in equity brought against them by the true owner of the property to vacate the McEnerney judgment, it was held that such judgment was final and conclusive even against the true owner, although the defendants’ title established in the McEnerney action was based upon a forged deed. The court stated: " The forged deed in evidence was the equivalent of perjured testimony, and it is the settled law of this state that a judgment cannot be set aside because it is predicated upon perjured testimony. There must be an end to litigation. [Citations.]

“Since the McEnerney suit brought in as defendants all persons claiming any estate in the property in dispute, respondent was in law a party thereto just as though he had been expressly named therein. The court had jurisdiction of the subject matter and of the parties, and the decree operated upon all persons claiming or having any claim to any estate, right, or title in the property in question.” (49 Cal.App. at p. 496.)

It is to be noted that the defendant purchasers in the Bradford case were the parties who commenced the MeEnerney action and that they were not parties to the forgery. Thus the case is distinguishable from the alleged conspiracy now before us, where, under the grand jury evidence, the sellers were parties to the forgery and commenced the McEnerney action. Nevertheless, the Bradford case is offered in support of the proposition that the McEnerney judgment which the alleged conspirators contemplated obtaining would be a judgment in rem and would enable these defendants to pass good title to a bona fide third party purchaser. In such

In summary, then, respondent urges that two rational grounds can be found for the conspiracy before us: First, it was a conspiracy to steal money (or other thing of value) from the eventual future purchasers of the property. Secondly, it was a conspiracy to steal the real property itself from the present owners.

Theft is defined by section 484 of the Penal Code in the following language: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property ... is guilty of theft. ...” (Emphasis added.) Although the crimes of larceny, embezzlement, obtaining money by false pretenses and kindred offenses have been consolidated by the provisions of section 484 into the single crime of theft, the elements of the several offenses have not been changed thereby. (People v. Jones (1950) 36 Cal.2d 373 , 376-377 [ 224 P.2d 353 ]; People v. Ashley (1954) 42 Cal.2d 246 , 258 [ 267 P.2d 271 ] ; People v. Myers (1929) 206 Cal. 480 , 483 [ 275 P. 219 ].) As is stated in People v. Ashley, supra: “The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses. (People v. Nor Woods, 37 Cal.2d 584 , 586 [ 233 P.2d 897 ].)” (42 Cal.2d at p. 258.)

There is no rational basis for assuming that the defendants conspired to commit theft by larceny. The elements of larceny are that: (1) the property stolen be the personal property of another; (2) the taker took the property from the owner’s possession without his consent; (3) the taker asported the property; and (4) he did so with an intent, without claim of right, to deprive the owner of his property wholly and permanently. (People v. Williams (1946) 73 Cal.App.2d 154 , 157 [ 166 P.2d 63 ] ; People v. Cannon (1947)

Respondent’s first theory, namely a theft of money from ultimate purchasers of the property is not based on any competent evidence. As we have pointed out, aside from Gregoriev’s extrajudicial statements there is no evidence that the defendants had an understanding between them to sell the parcels of land. If there were such a proper inference, it would necessarily include the inference that third-party purchasers would part with their purchase money finally and completely—with the title to it as well as its possession. Such theft, contemplated by the defendants, could not be that of larceny. (People v. Tomlinson, supra, 102 Cal. 19 .) Indeed, respondent nowhere urges a conspiracy to commit theft by larceny. Under respondent’s second theory, namely a theft of the real property itself, there, of course, could be no basis in law since real property cannot be the subject of larceny, the statute (Pen. Code, § 484) applying only to personal property.

It is also clear that there is no basis in the grand jury evidence for believing that the defendants conspired to commit theft by embezzlement. To support such an offense, the money or property which is the subject of such offense must have been “entrusted” to the defendants. (Pen. Code, §§ 484, 503.) No such evidence appears.

Finally, we proceed to determine whether, as indeed the respondent appears to urge, it is reasonable to believe that petitioner and Gregoriev entered into a corrupt agreement to commit grand theft by obtaining money or property by false pretenses. At the outset it is clear that real property as well as personal property may be the subject of theft by false pretenses. (Pen. Code, §§ 484, 532; People v. Rabe (1927) 202 Cal. 409 , 416 [ 261 P. 303 ]; People v. Pugh (1955) 137 Cal.App.2d 226 , 236 [ 289 P.2d 826 ].)

The elements of theft by false pretenses are the

We first apply the foregoing principles to respondent’s contention that the conspiracy to commit grand theft had for its object the obtaining of money from purchasers of the property and was in essence a conspiracy to steal money from the future purchasers. No such sales were ever consummated since the conspiracy, if this was its object, never reached such stage of fruition. We must then necessarily examine what the parties contemplated doing in this respect. As we have pointed out, there is no competent evidence from which it can be inferred that the defendants intended to sell the properties to third parties. There is absolutely no evidence identifying third-party purchasers, or specifying the dates or terms of sale. Under the evidence in the record, there were no victims to whom, it might be argued, the defendants conspired to make a false representation or pretense.

Nor do we find a rational basis for a conclusion as to the making of the false representation itself. The grand jury could not reasonably infer from the evidence that the defendants contemplated making an express and direct false claim of ownership to any specific purchaser since the purchasers had not been identified. Respondent, therefore, appears compelled to resort to the theory that the 8 forged quitclaim deeds were a “public false pretense” on the record. Assuming such deeds to constitute a false claim of title, we do not see how it can be inferred that this false pretense or representation would be made to third-party purchasers, so as to furnish this element of the crime. While it is true that a false representation can be made to the general public, as for example through advertising (People v. Pugh, supra, 137 Cal.App.2d 226 , 234; see 35 C.J.S., False Pretenses, § 29, p. 851), in such instances, it is usually found that the false representation is brought to the attention and therefore

Finally, there was no evidence justifying the grand jury in believing that the conspiracy charged was, under respondent’s first theory, one to commit grand theft rather than petty theft. (Pen. Code, §§ 486, 487.) No testimony was presented indicating that the consideration contemplated to be paid was in excess of the sum of $200. The record shows that Paul L. McKay, -a qualified appraiser and the principal appraiser for the County of San Mateo, testified as to the market value of each of the 20 parcels of land at the time of the grand jury hearing. All of such appraisals were in excess of $200, ranging from $400 to as high as $2,000 for the 20 parcels. A conclusion from this testimony as to what the sales price would necessarily be at some indefinite time in the future would be purely speculative.

Taking up respondent’s second contention in support of the indictment, it is obvious that no rational ground can be found for concluding that the defendants conspired to commit a theft of the real property by false pretenses. There is no evidence at all that they intended as the object and purpose of the alleged agreement to make any representations of any kind to the actual owners of the property so as to induce the latter to part with their property. Quite the contrary, the plan seems to have been to circumvent and avoid the real owners entirely. Nor, in our view, is it a reasonable inference from the evidence before the grand jury, that the defendants, by commencing the McEnerney action intended to represent themselves as owners so as to induce the true owners to part with the property. As we view the evidence, the purpose of the McEnerney action seems to have been to clear the title without provoking any inquiry by the true owners.

We hold therefore that there is no competent evidence supporting a reasonable belief that the defendants conspired to commit grant theft. Although it is unnecessary to so state, it is clear that our holding does not preclude the determination of a rational ground for assuming that the defendants under the evidence presented, have committed other offenses, including offenses in violation of section 182 of the Penal Code. In view of our above conclusion, it is unnecessary for us to consider the other arguments advanced by petitioner for the setting aside of the indictment as to the first 20 counts.

Let a peremptory writ of prohibition issue as to counts 1 to 20 inclusive of the indictment.

Bray, P. J., and Tobriner, J., concurred.