People v. McCann

The defendant appeals from a conviction involving six “bad cheeks.” An information charging her and her husband with these offenses, i.e., violations of Penal Code section 476a, was in three counts; the first thereof involved one check in the sum of $90; the second thereof involved three checks totaling $64.41; and the third thereof involved two checks totaling $75. The husband pled guilty and the defendant pled not guilty. Trial by jury was waived. By stipulation, the People’s case was submitted on the preliminary transcript. Following such, the defendant moved for a dismissal, which was denied. Thereupon, she put on her defense which, in substance, was based upon the claim that she acted in the premises under the command, coercion and threats of her husband. (See Pen. Code, § 26, subds. Seven and Eight.) The trial judge found the defendant guilty on all counts; suspended imposition of sentence; and placed her on 10 years’ probation, with a 30 day jail-sentence condition.

The defendant presents 14 questions on appeal Avhich, when analyzed, are resolved into six issues, to wit:

(1) Sufficiency of the evidence to sustain the conviction;

(2) Alleged errors in the admission of evidence on cross-examination of the defendant and her husband;

(3) Alleged errors in rulings respecting her defenses;

(4) Whether more than one felony was committed;

(5) Whether the period of probation was excessively harsh; and

(6) Whether the rule announced in People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ] requires a reversal.

Sufficiency of Evidence

The attack upon the sufficiency of the evidence to support the charges against the defendant asserts an alleged lack of proof that she had aided and abetted her husband. The prosecution contended the defendant was responsible as an aider and abettor, and also as a coconspirator. The court found the defendant guilty under both theories.

Prior to the offenses in question the husband had been convicted and placed on probation because of previous bad check charges. Among other terms of probation he was required to remain in Los Angeles County; to refrain from opening a bank account; and not to have any blank checks in his possession. The defendant knew of these terms of probation. She and her husband moved to San Diego without consent of the probation officer of Los Angeles County. Shortly thereafter she opened bank accounts in three banks, each for a small amount, i.e., $3.50, $5.00 and $5.00; used her maiden name in doing so; gave a different fictitious address at each bank; obtained blank checks from the banks in question ■ and gave them to her husband. She claims that she opened these accounts, obtained these checks, and gave them to him because he commanded her to do so, and threatened to kill her, himself, and her children if she refused. Contemporaneously the husband opened bank accounts in two other banks.

The charge in Count 1 involved a $90 check bearing the signature of “Lawrence Hillman,’’ a fictitious person, payable to the husband and endorsed by him. The blank check used for this purpose was one of those obtained by the defendant when she opened one of her accounts and bore the number assigned to that account.

The charge in Count 2 involved three checks. One was in the sum of $24.41; was signed by the defendant; was drawn on a bank in which the husband had opened an account; and the check used was a counter check furnished by the payee,

The third count involved two checks. One was in the sum of $25; was signed by the husband; was drawn on a bank in which the defendant had opened an account; and was upon a check obtained by the defendant, bearing her account number. The other was in the sum of $50; was signed by the husband; and drawn on an account opened by him.

In addition to the evidence heretofore noted, establishing actual participation by the defendant in some of the offenses set forth in the information, it also appeared that she had accompanied her husband on all of the occasions when each of the foregoing checks was issued and passed, although on some of them she was not in the immediate presence of the payee.

Under the circumstances aforesaid, evidence that the defendant obtained and gave her husband blank checks which he used in the commission of the offenses involving those checks is sufficient to sustain the finding of the court that she aided and abetted him in committing those offenses (generally see People v. Barker, 53 Cal.2d 539 , 542 [ 2 Cal.Rptr. 467 , 349 P.2d 73 ]; People v. Pedesclaux, 216 Cal.App.2d 1 , 5 [ 30 Cal.Rptr. 574 ]; People v. Ellhamer, 199 Cal.App.2d 777 , 781 [ 18 Cal.Rptr. 905 ]; People v. Koomer, 188 Cal.App.2d 676 , 678-680 [ 10 Cal.Rptr. 607 ]); and evidence that she signed the counter check described in Count 2 is sufficient proof of her participation in the offense involving that check. The finding of the trial court that the defendant was guilty of these offenses is supported by substantial evidence.

If it be assumed that, by analogy, the provisions of section 1118 of the Penal Code authorized the trial court to acquit the defendant upon her motion to dismiss after presentation of the People’s case for insufficiency of the evidence, the denial of that motion was not error because at this juncture the evidence was not insufficient to warrant a conviction. (Generally see People v. Faber, 29 Cal.App.2d Supp. 751 , 758-759 [ 77 P.2d 921 ].)

Error in Admission of Evidence

Over objection, the defendant and her husband were

Alleged Errors re Defenses

The defendant also contends that the evidence establishes, as a matter of law, that she acted in the premises upon the command, under the coercion and in fear of her husband, and that, for this reason, her conduct was not criminal. This contention disregards, among other things, the fundamental rule on appeal in favor of the judgment requiring this court to assume the trial court rejected the testimony in support of this defense. The record supplies ample legal reason for refusing to believe such testimony. (People v. Acosta, 45 Cal.2d 538 , 542 [ 290 P.2d 1 ]; Miller v. Johnson, 214 Cal.App.2d 123 , 125 [ 29 Cal.Rptr. 51 ].) In this regard the defendant further contends that there is a presumption that she was acting under the command or coercion of her husband within the meaning of section 26, subdivision Seven of the Penal Code. However, this section relates only to misdemeanors. The offenses of which the defendant was convicted were felonies.

Upon submission of the ease, the trial judge expressed his views in the premises and, among other things, stated: “And then you get into the defenses. The burden passes from the People to the defendant to establish the defendant’s defense.”

Excessively Harsh Probationary Terms

Defendant contends that the probationary terms are harsh because they extend over 10 years. The probation officer’s report showed that the defendant and her husband were involved in passing bad checks approximating $700. The defendant, as a condition of probation, is required to make reimbursement. Her ability to reimburse is a factor attendant upon the length of probation. Furthermore, as probation is a favor, the length of the probationary period may not be questioned provided it is within the time prescribed by law. The court did not abuse its discretion in the premises.

Effect of Dorado Buie

This case was tried before the decision in People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ] had announced an exclusionary rule respecting incriminatory statements made by an accused under specified circumstances. On appeal the defendant contends the admission of the incriminatory statements made by her constituted prejudicial error.

At the preliminary examination, a police officer testified that in response to his interrogation the defendant stated, in substance, that, acting under the command, coercion and threats of her husband, she had opened accounts in four banks under her maiden name, one of which was not involved in the subject offenses; had obtained blank checks, the numbers on which identified these accounts; had given these checks to her husband at his request; was with her husband when all of the checks involved in these offenses were written by him; and signed the counter check described in Count 2 of the information. This testimony, together with all other testimony taken at the preliminary examination, was submitted to the trial court as the People’s case in chief by stipulation of both the prosecution and the defendant. As noted, the defendant’s defense to the subject offenses was that she acted involuntarily; in response to the command, coercion and threats of her husband; and without criminal intent. She and her husband both testified in support of this defense and in the course

Although the status of the case at the time the defendant made her motion to dismiss did not include the testimony by the defendant and her husband reiterating the incriminatory statements made by her to the officer, there then was ample evidence, exclusive of these statements, showing that she had opened the subject bank accounts, obtained blank checks that thereafter were used by her husband, furnished an exemplar of her signature to one of the banks, and personally signed the counter check in the presence of the payee therein named, thus establishing her participation in the offenses with which she was charged. In the event she had chosen not to put on her case, this evidence would have been uncontradicted; its credibility was not dependent upon the corroborative effect of the statements made to the officers; and we see no reason why the trial court would not have found her guilty.

Under the circumstances aforesaid, if the admission of the incriminatory statements in question had any effect upon the case it was “relatively insignificant,” and was not prejudicial within the scope of the decision in People v. Dorado, 62 Cal.2d 338 [ 42 Cal.Rptr. 169 , 398 P.2d 361 ], or the reason for