People v. Miles & Sons Trucking Service, Inc.

Plaintiff appeals from orders setting aside an information upon motion by defendants under Penal Code, section 995.

The controversy arises out of a general contract for the construction of a public highway; a subcontract for hauling dirt; the employment of truck drivers by the subcontractor; and the alleged violation of tariff regulations, illegal employment practices and failure to comply with record keeping requirements.

The information was in 36 counts. Count I alleged a conspiracy, under Penal Code, section 182, subdivision 1, to commit the crimes defined by designated sections of several California codes. Count II alleged a conspiracy, under Penal Code, section 182, subdivision 4, “to obtain . . . labor by false pretenses and false promises with fraudulent intent not to perform such promises.” Counts III through XVIII alleged violations of Labor Code, section 1778. Counts XIX through XXXIV alleged violations of Penal Code, sections 484 and 487, subdivision 1, in obtaining labor by false pretenses. Count XXXV alleged a violation of Penal Code, section 134. Count XXXVI alleged a violation of Public Utilities Code, section 3801.

Defendants moved to set aside the information pursuant to the provisions of Penal Code, section 995. The court granted their motions by separate orders, upon .the dual grounds, as indicated in a written memorandum of decision, (1) the defendants had not been legally committed as to certain of

On appeal the People limit their attack upon the orders setting aside the information to its effect on specific counts or parts thereof; assert the conclusion of lack of jurisdiction of the magistrate is without foundation; and contend the evidence establishes probable cause to believe defendants were guilty of (1) the offense of conspiracy, as alleged in count I, to violate Labor Code, sections 1777 and 1814, Public Utilities Code, sections 3801 and 3802, and Penal Code, sections 484 and 487, subdivision 1, (2) the offense of conspiracy alleged in count II, (3) the offenses of grand theft alleged in counts XIX, XX, XXV, XXVI, and XXX, and (4) the offense of violating Public Utilities Code, section 3801 as alleged in count XXXVI. The failure to assert error in the orders as they affect the information in other respects is equivalent to an abandonment of the appeal from that part of those orders. (Eistrat v. Irving Lbr. & Moulding, Inc., 210 Cal.App.2d 382 , 390-391 [ 26 Cal.Rptr. 520 ]; Estate of Scott, 90 Cal.App.2d 21 , 24 [ 202 P.2d 357 ].)

Probable cause for commitment by a magistrate is shown ‘ if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it”; or, stated otherwise, ‘‘if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.” (Bom pensiero v. Superior Court, 44 Cal.2d 178 , 183-184 [ 281 P.2d 250 ].)

Thus, the probable cause issue on appeal as respects count I of the information is whether the evidence is sufficient, under the foregoing rule, to show defendants conspired to violate Labor Code, sections 1777 and 1814, Public Utilities Code, sections 3801 and 3802, and Penal Code, sections 484, and 487, subdivision 1.

The trial judge filed a written opinion in the case which may be considered to discover the process by which he arrived at his decision, and to determine whether in doing so he applied correct rules of law. (Union Sugar Co. v. Hollister Estate Co., 3 Cal.2d 740 , 750 [ 47 P.2d 273 ]; Coakley v. Ajuria, 209 Cal. 745 , 749 [ 290 P. 33 ].)

Among other things, the judge stated in this opinion: ‘ That the evidence does establish that there were many violations of

In substance, to the extent relevant to the issues in the case at bench, Labor Code, section 1777 provides a contractor or subcontrator who neglects to keep accurate records of the "actual per diem wages paid to every workman” employed by him in connection with public work is guilty of a misdemeanor; Labor Code, section 1814 provides a contractor or subcontractor who neglects to keep an accurate record showing the actual hours worked by each workman employed by him in connection with public work is guilty of a misdemeanor; Public Utilities Code, section 3801 provides every highway permit carrier and its agent who violates designated provisions of the Public Utilites Code or fails to comply with any rule or regulation of the Public Utilities Commission is guilty of a misdemeanor; Public Utilites Code, section 3802 provides a person "other than a highway carrier” who violates such provision or fails to comply with such rule or regulation, or who "procures, aids or abets any highway carrier ’ ’ in such violation or failure is guilty of a misdemeanor; Penal Code, section 484 provides every person who, "by any false or fraudulent representation or pretense,” defrauds any other person of labor is guilty of theft; and Penal Code, section 487, subdivision 1, provides when the value of the labor in question exceeds $200 the offense is grand theft, a felony.

In 1965 defendant Miles entered into a contract with the State of California to construct a portion of Highway 8. In March of the succeeding year defendant Fratianno Trucking Company entered into a subcontract with defendant Miles to haul dirt on an hourly basis. Defendant Fratianno represented the trucking company in all phases of the transaction. The Public Utilities Commission’s tariff regulations prescribed minimum hourly and tonnage rates for hauling. In an apparent effort to evade these regulations, it was agreed

The conspiracy and criminal objectives charged in count I of the information are shown in part by evidence of violations of Labor Code, sections 1777 and 1814, Public Utilities Code, sections 3801 and 3802, and Penal Code, section 484. However, it is appropriate to note that proof of criminal conspiracy is not dependent upon proof of accomplishment of its objectives or purposes, except in those instances where the only overt act alleged is the commission of the criminal object of the conspiracy. (People v. Guerrero, 22 Cal.2d 183 , 187 [ 137 P.2d 21 ]; People v. Shaw, 115 Cal.App.2d 597 , 601 [ 252 P.2d 670 ] ; People v. Klinkenberg, 90 Cal.App.2d 608 , 635 [ 204 P.2d 47 , 613].)

It is our conclusion the evidence before the magistrate satisfies the requirement of probable cause to believe the three defendants conspired to commit the offenses defined in the aforesaid code sections.

Defendant’s contention on appeal that Labor Code, sections 1777 and 1814, and Public Utilities Code, sections 3801 and 3802 merely provide penalties for violations of designated rules and regulations rather than declaring such violations are crimes, is without merit.

Defendants contend the provisions of Public Utilities Code, sections 3801 and 3802 declaring, respectively, that any corporate officer or agent of a highway permit carrier, or any person other than a highway carrier, who “procures, aids, or abets” any highway permit carrier in its violation of or failure to comply with any statutory or commission rule or regulation is guilty of a misdemeanor include all criminal agreements in the premises; are part of a special statute; and foreclose application of the general conspiracy statute, i.e., Penal Code, section 182, subdivision 1, under the general rule stated in 1 Wharton’s Criminal Law and Procedure 191. There is no merit to this contention. Conspiracy “is not synonymous with aiding or abetting or participating.” (People v. Malotte, 46 Cal.2d 59 , 65 [ 292 P.2d 517 ]; People v. Jones, 228 Cal.App.2d 74 , 83 [ 39 Cal.Rptr. 302 ].)

The offense alleged in count II of the information is premised upon the conspiracy defined in Penal Code, section 182, subdivision 4, i.e., “to obtain money or property by false pre

The attack upon the ruling of lack of probable cause to commit defendants on the grand theft charges is limited, on appeal, to counts XIX, XX, XXV, XXVI and XXX.

The issue is whether the evidence shows defendants by false pretense and representation defrauded the truck drivers named in these counts of their labor.

The trial judge in his memorandum opinion, stated: “Theft is defined as ‘The felonious taking and removing of personal property with intent to deprive the rightful owner of it. ’ The record in this case does not show such a taking of personal property. It does show that certain truekdrivers were paid less than what they were entitled to receive by reason of the Public Utilities Code and the Labor Code, but it does not show that the defendants took or received any of the earnings of said truekdrivers. ’ ’

The charge in the information is not that defendants took personal property from the truck drivers, but that they defrauded the truck drivers of labor by false pretense and representation.

The evidence establishes probable cause to believe Pratianno Trucking Company and Pratianno obtained the labor of the truck drivers named in counts XIX and XX of the information by the false pretense each of them, in compensation for labor, would receive the total gross income of the truck he was driving, less expenses for fuel and upkeep; that a part of this income would be paid to him in cash and the remainder applied to the purchase of the truck from his employer ; and the cash payment would equal 30 percent of the gross income. The owner-operator status of truck drivers on the job was imperative to compliance by Miles with the tariff and prevailing wage regulations governing its operation. Circumstances established by the evidence support the belief Miles aided and abetted Pratianno Trucking Company and Pratianno in defrauding the truck drivers by the false

Defendants contend there is no showing the truck drivers relied upon the false pretense. This conclusion is premised upon the claim the evidence shows the truck drivers had other reasons for accepting and continuing their employment by Fratianno Trucking Company. Even assuming this claim is correct, there was evidence showing the false pretense, although not the sole inducing cause, in fact materially influenced the drivers to accept employment under the terms designated. This evidence supplied the element of reliance essential to the offense. (People v. Ashley, 42 Cal.2d 246 , 259 [ 267 P.2d 271 ] ; People v. Kassab, 219 Cal.App.2d 687 , 690-691 [ 33 Cal.Rptr. 494 ]; People v. Phillips, 186 Cal.App.2d 231 , 239 [ 8 Cal.Rptr. 830 ].) Defendants’ arguments are directed to the weight of the evidence showing reliance rather than its sufficiency to support a finding of probable cause to believe reliance occurred.

Defendants also contend the evidence does not establish the value of the labor of which each truck driver was defrauded exceeded the $200 grand theft requirement. For the purpose at hand “in determining the value of services received the contract price shall be the test.” (Pen. Code, § 484.) In the case at bench the misrepresented contract price was 100 percent of the gross income from the trucks, less expenses for fuel and upkeep; the truck drivers were paid 27 percent of the gross income; and, under these circumstances, the value of the services fraudulently obtained was an amount equal to 100 percent of the gross income from the trucks less 27 percent and expenses for fuel and upkeep. The evidence supports a showing this amount as to each of the subject trucks exceeded $200.

Defendants further contend the grand theft charges are premised solely on a failure to pay the prevailing wage which is punishable by the civil penalties prescribed by Labor Code, section 1775; the latter section is a specific statute applicable to the situation at hand; and application of the general statute which punishes obtaining services by fraud is foreclosed under the rule stated in People v. Swann, 213 Cal.App.2d 447 , 449 [ 28 Cal.Rptr. 830 ], The rule relied upon does not apply to the circumstances of this case. There is a substantial distinction between the fraud involved in failing

Contrary to defendants ’ contention, the issue at hand is not concerned with the effect, if any, an adjudication by the commission might have on the outcome of the criminal proceeding, and we make no determination respecting this matter. (See, however, Pub. Util. Code, § 3806.)

In his memorandum opinion the trial judge expressed his opinion on the jurisdictional issue several times. In each instance he stated the lack of jurisdiction was in “this Court” —the superior court.

Lack of jurisdiction in the superior court is not a ground for setting aside an information under Penal Code, section 995. However, lack of jurisdiction in the magistrate may be asserted under subdivision 1 of that section. (People v. McConnell, 82 Cal. 620 [ 23 P. 40 ]; Ex parte Moan, 65 Cal. 216 , 217-218 [ 3 P. 644 ].) We have treated the issue accordingly.

The trial judge indicated some of the issues upon which he ruled “perhaps should have been raised by demurrer” but he “thought it best to rule upon the points at this time so that they might be raised on appeal.” Apparently the jurisdictional issue was one of these points. Our decision is based upon the issues raised by the motion. We make no determination respecting the sufficiency of the information in light of objections that might be raised by demurrer. In similar vein it should be noted our recital of the facts is

The orders are reversed insofar as they set aside the information with respect to count I as it charges a conspiracy to violate Labor Code, sections 1777 and 1814, Public Utilities Code, sections 3801 and 3802 and Penal Code, section 484, counts XIX and XX, charging grand theft, and count XXXVI, charging a violation of Public Utilities Code, section 3801. In all other respects the orders are affirmed.

Brown (Gerald), P. J., and Whelan, J., concurred.