*1 Dist., Sept. 1971.] Two. 4514. Div. No. Fourth [Crim. PEOPLE, Plaintiff and
THE Respondent, HEMMER, Defendant VERONICA Appellant. CHARLENE *3 Counsel
Cohen, H. for Stokke & Owen Allan Stokke Defendant and Appellant. General, James, J. Evelle E. Assistant Attorney William Attorney Younger, General, Hemar, General, and Richard P. for Plaintiff Deputy Attorney and Respondent.
Opinion By information GABBERT, Charlene Hemmer was appellant charged J. one of grand Code, 484-487, with count theft in violation of Penal sections and with one count of an automobile in unlawfully viola driving taking tion of Vehicle Code section 10851. After a motion set aside infor to Code, 995, denied, mation under Penal was and defendant entered a of not a found her plea guilty, Penal sec guilty Code violating (grand theft). tions denied; 484-487 motion for a new trial was Appellant’s were and she proceedings was three suspended granted years’ probation conditions, subject various terms and including psychiatric counseling. aAs term of she was also ordered to a probation, serve total of on 77 days, weekends, in the Orange County jail.
The facts show leased a 1969 Pontiac automobile appellant from Richard 30, 1969, 5, T. Smith for the period October 1969. Smith September form, testified the information on the lease required including appellant’s address, had license, been obtained from her driver’s and stated appellant she was employed by Amusement Lackey in Artesia. Smith Company 9,289 testified it, also the leased auto had miles on and was equipped tires, in original good condition. Lemoore, Smith recovered the vehicle in California on December 13,798 1969; it, the vehicle had miles on had Smith three replace it tires on to return safely Orange County.
The lease form contained a the lessee would the lessor provision notify if the vehicle was be not to returned at the end of the lease On period. October Smith received call from woman telephone (appellant this During vehicle. return of the caller) was the regarding
testified she be all would conversation, right,” caller “a days told the couple Smith it,” was returned if the car could do about much and “there wasn’t [he] to which offices did maintain any lease not after the Smith period. Los Counties. Angeles Orange returned outside could be leased vehicle number returned, called the Smith telephone vehicle was When also unable disconnected. He was and found it had given which appellant he went to When Amusement Lackey her through Company. locate address, someone else living in a mobile home park, given space there. ad- 17, 1969, letter to Smith mailed certified appellant’s
On October “Moved, further dress; left no address.” In returned marked the letter was to a Mrs. vehicle, Smith, on several occasions spoke to locate attempts Mrs. be a friend or relative of the knew to close appellant. whom he Welch had given, the address which lived behind appellant Welch directly home mobile park. Beach, McCammon, in Long of an house manager
O. P. apartment June rented an to the appellant testified he had apartment lease was August name of Mrs. Donald Pointer. On under the *5 and his wife Charlene George Ap- over Lackey [the defendant]. signed this on October left 1969. pellant apartment McBlain, the Vernon of the mobile home manager park, testified appel- address until June and had lant had lived at the mobile home park however, had lived there after McBlain seen July not 1969. appellant, on oc- at her in the mobile home several with Mrs. Welch address park casions. 11, 1969,
On December Smith received a call from phone appellant Fallon, looking heard the were Nevada. said had from she Appellant police her; her filed her Smith informed he had a criminal against for complaint she had given for to return the leased vehicle. told Smith failing Appellant Hanford, in the vehicle to on October California. George Lackey California, Lemoore, arrested, 11, 1969, on in was December Appellant warrant; she denied her as on a traffic at. the time of her arrest identity name. gave Charlene Hemmer another defense, her had lived with For the Mrs. Welch testified appellant peri- testified she had told Smith on during 1969. Mrs. Welch odically September had left the vehicle at the Rod Rimmer Pontiac three occasions appellant Hanford, in California. Garage testified when she leased the did vehicle she not intend to
Appellant theft; it, commit fraud or her reason for not the vehicle embezzle returning was because had three bad tires and earlier the vehicle was unsafe drive. Had tires she would have returned the vehicle. She been adequate on he did also stated when she Smith October not telephoned time at he state which wanted the vehicle returned. any particular Appel- Welch, had lant further testified she written Mrs. her to have Smith asking She had left the the vehicle. leased vehicle at the Rimmer pick Garage up closed, on a when the was and told Sunday no one she had left it. garage She further testified Smith had the mobile home address from copied park license, him her driver’s she had even told she was though staying Mrs. Welch. November,
Although returned appellant Orange County she early Sinith, did call Rimmer even she had left the at though vehicle pot Hanford, On her Garage. return to she retrieved from the garage, vehicle Lemoore, drove to in a used the there. She car two more put garage times and other let use it also. did not people Appellant strip repaint, numbers, identification obliterate or hide the vehicle. raises four contentions: major
(1) Her motion for a new trial should have been the basis of granted on evidence which indicated she did have psychiatric the mental capacity theft; commit to formulate intent to grand on the
(2) finding guilt The evidence was insufficient support theft; count of grand
(3) set aside the information under Penal Her motion denied, bound over solely and she was erroneously improperly *6 10855, and the of the found in Code section basis Vehicle presumption California; without a of showing in jurisdiction should not
(4) effect of two Instructions as the statutory presumptions the are unconstitutional. have also given. urges Appellant presumptions been case, we the latter two In view of our reach only disposition arguments. Information Motion To Set Aside The
The Properly Was Denied the at the hearing first contends magistrate preliminary Appellant of on the the her to answer cause and basis solely held without probable 1058 is This argument Vehicle Code section 10855.1 contained in
presumption without merit. 995, denial of mo test the a Penal Code reviewing in examination, whether the the conducting is magistrate preliminary
tion could conscientiously as a man of caution and acting ordinary prudence, v. (Taylor Superior of of the accused. guilt entertain a strong suspicion Court, 578, 131]; Rideout v. 3 Cal.3d P.2d 477 Cal.Rptr. [91 Court, 197]; 432 P.2d Superior 67 Cal.2d Cal.Rptr. [62 Roth, 49].) 443-444 People Cal.Rptr. v. Cal.App.2d thereon be set aside An information will not be prosecution if there is some rational for ground assuming possibility prohibited (Rideout been of it. offense has committed and accused is guilty an Court, Superior supra.) reasonable doubt beyond Guilt required; v. Superior (Taylor all that is of a reasonable required guilt. probability Court, supra.) of time that
Considering the length beyond stipulated was lease which the car the fact returned agreement during kept, appellant car, and failed to the lessor of the location Orange County notify she leased and the incorrect which she at time allegedly address gave car, we conclude the evidence the magistrate’s finding supported existed, grand reasonable cause her with theft. The probable charge an of em could have drawn inference magistrate reasonably committing bezzlement from these facts from the Vehicle wholly apart presumption Code section 10855. court argument had no jurisdiction try
Appellant’s superior because the case evidence taken at failed an preliminary hearing show within embezzlement state is evidence without merit. The equally sup- the reasonable inference an intent to the leased embezzle vehicle ports time the formed at the lease was rather than at some time later out- signed, side California.
Constitutional Considerations found in Penal Code section maintains presumptions (b)2 and Vehicle Code section are unconstitutional any person who has 1Vehicle reads: “Whenever leased or *7 wilfully intentionally a vehicle fails vehicle to rented and to return the its owner days agreement within five after the expired, person lease or rental has shall be presumed to have embezzled the vehicle.”. (b), provided “Except section subdivision reads: as 2Penal Code in Section Code, by of Vehicle theft if presumed 10855 the intent to commit fraud is one who or rented the of personal property pursuant has leased to a contract another written fails the the personal days to return to its owner 20 after owner has property within
1059 clause of Fourteenth Amendment because of the the violations due process violate the to a trial in criminal constitutionally they right jury protected case, and arbitrary. are and because irrational they the the in both Penal
Although was instructed on jury presumptions (b), section and Vehicle section we Code subdivision Code not reach the whether the effect of a need an instruction as to question which an of a crime for convic establishes necessary element presumption violates the to a trial jury tion under the Fourteenth right protected Here, discuss, Sixth Amendments. as we the evidence on shall pro duced by should not been instructed as to the jury have appellant, of the effect Thus retrial the will be to find presumptions. required all conviction, elements of for the crime without necessary instruc as to tion the trial determines there is assuming judge presumptions, evidence sufficient to sustain a nonexistence of finding presumed fact. bench, however,
As the trial in the by court case at interpreted of the under Penal Code subdivi major portion section presumption (b), is irrational and sion and thus violates the due clause arbitrary process of the Fourteenth Amendment. Amendment,
Under due clause of the process Fourteenth must be regarded criminal as irrational or and hence arbitrary, presumption unconstitutional, at unless can least be said with substantial assurance fact is more not to flow likely than from the fact on presumed proved States, is (Turner which it made to v. United U.S. 398 depend 396 [24 642]; States, Leary L.Ed.2d S.Ct. United 6U.S. L.Ed. 2d S.Ct. 1532].)
Evidence introduced at trial showed lessor Smith made written demand certified letter for by the return of the leased Penal Code vehicle. (b), intent to establishes commit theft fraud by if the leased presumed is not returned within 20 after property days returned, however, such demand. The certified letter marked here ” “Moved, left no address. In the absence of lessee proof actually letter, receivéd demand it cannot be said assurance that substantial intent to commit theft more not likely than to exist when written only demand and failure to return are To shown. intent to commit presume an theft where demand letter received, is sent but not where the leased - returned, is a conclusion from an property presumes unrelated premise registered following made written demand expiration certified or mail agreement rented, or lease rental property for return of the leased or if so one presents to the owner identification which a false or name or bears fictitious address purpose obtaining agreement." for the the lease or rental *8 1060 (See States v. United Leary Turner test. also thus violates the and
and Romano, 279]; 210, Tot v. United 86 136 S.Ct. 382 U.S. L.Ed.2d [15 Stevenson, States, 1241]; v. 1519, People 63 319 463 L.Ed. S.Ct. U.S. [87 297]; People P.2d 376 58 Cal.2d 797-798 Cal.Rptr. [26 Johnson, 99]; The Unconstitution 258 Cal.Rptr. Cal.App.2d 341; Ashford ality Statutory Presumptions, Criminal 22 Stan.L.Rev. Of In Due Presumptions, Assumptions, And Process Criminal and Risinger, Cases, 165; Statutory Criminal Pre Constitutionality Yale The L.J. Of 141.) sumptions, U.Chi.L.Rev. is
However, violate due if it con- does the section appear process both of letter and receipt demand strued require sending proof within the lessee, 20-day as well failure to the leased property as return retrial, demand dealing Thus of the presumption period. portion that be unless shows return should not considered the evidence and manner, in lessee received letter lessor sent demand requisite letter, the 20-day the leased was not returned within property statutory period. Presumptions
Instructions On been instructions con- should not have given argues jury Appellant of the found in Code the effect Penal cerning presumptions Vehicle Code section 10855. Both instructions were (b), subdivision at trial over the of as to their she appellant given objections applicability; instructions themselves. attacked the language precise Code, (b). Section Subdivision Penal The was instructed under the contained Penal jury presumption (b).3 is presumption presumption Code, burden of affecting (Pen. evidence. subd. producing § (c).)4 It is a established no other presumption implement public policy, than to facilitate a determination of action in which the the particular (Evid. Code, 603.) presumption Its effect “. . . is to applied. require § the trier of fact to assume the existence fact unless and presumed evidence until is introduced which would of its non support finding existence, in case the which shall trier fact the existence determine nonexistence of the fact from the evidence presumed regard and without Code, (Evid. 604.) the presumption.” § contends should not have been instructed on
3Supra, footnote 2. (See type Thayer 4This presumption normally called presumption. Thayer, 313-352.) Preliminary (1898) Treatise On Evidence pp. *9 (b), since in Penal contained presumption of the absence to a finding evidence was introduced sufficient support fraud, she commit testified embezzle, or commit theft. intent vehicle, fraud or theft. Evi- to commit the had no intent embezzle the vehicle failure to return the showing introduced her dence was also by tires, had been con- the lessor the condition of was due to the unsafe believed, the evi- of the car. the location three regarding tacted times If intent to of lack of a finding dence have been sufficient support would commit fraud. theft by sufficient to a of the lack of intent finding
With evidence support case, and fraud, from the the commit theft by disappeared presumption effect should not have been given.5 legislative an as its instruction comment the effect Evidence describing committee on Code evidence, notes: “Such burden of of a producing affecting presumption con the absence of a a merely assumption presumption preliminary the nonexist a evidence, i.e., sufficient to sustain finding introduced, evidence trary the trier of evidence fact. If contrary ence of the presumed rise to the facts gave from the inferences arising fact must weigh ...” the conflict. and resolve evidence against contrary presumption the burden of evidence is relied “If a affecting presumption producing on, sustain determine whether there is evidence sufficient to must judge If evi a fact. there is such of the nonexistence of finding presumed about it dence, and the need say nothing judge disappears presumption in his instructions. ...”
Thus, of the non finding if sufficient to there is evidence support and no instruc fact, the existence of the disappears presumed presumption B.) (3d ed.) (See tion should be CALJIC given. Appendix The trial declined to make the judge by preliminary finding required Evidence Code section it that would ground taking upon be] “[I to invade the . . .” myself jury. contrary, by On province pre- evidence was sufficient to liminarily holding finding. support fact, and therefore not the nonexistence of the giving pre- presumed instruction, the court would have left the free to draw trial sumption evidence, be drawn from the unfettered such normal inferences as could presumed an intent instruction which stated law by presumption to commit theft fraud. function; further unique Thayer presumption is that has no 5“The feature of evidence, van presumption opponent producing the burden of once the satisfies (Note, The Cali proceeds presumption as if the never existed.” the action
ishes and 1439; Code, Presumptions, (1965) Thayer, Pre see Evidence 53 Cal.L.Rev. fornia (1898) 313-352.) pp. Evidence liminary Treatise On Code, Section 10855. Vehicle *10 section 10855.6 Vehicle also instructed under Code jury however, of 484, (b), type section Unlike Penal Code subdivision 10855, is not creates speci Code section which Vehicle presumption 10855, a creates presumption Vehicle Code section conclude fied. We evidence, not have and thus also should the burden of affecting producing of which the state under proof instructions to jury been in the given here existed. e Code affecting
Evidenc section a specifies presumption no evidence is one established to implement public burden of producing action to facilitate the determination of- particular other than policy are is of such in which the Examples presumptions presumption applied. . de therein “. . are Code section 630-645. The Evidence presumptions to be facts that are likely unnecessary proof to signed dispense are to eliminate the need true if not .... intended They solely disputed fact established from the for the trier of fact to reason proven oyer the existence pre forestall argument fact and to presumed the nonexistence fact when there is no evidence tending prove sumed Code, Revision Commission Com (Evid. Law fact.” § the presumed ment.) hand, is a proof
On the other a burden presumption affecting other than established some implement public policy presumption facilitate the determination of the action in which the pre particular (Evid. Code, 605.) no is can such We sumption public § discern applied. based. That section is on which Vehicle Code section policy a to which would normally directed toward only finding logic facilitating evidence unavailable to lead and toward forth normally bringing defendant. available to the Without which is more readily prosecution Code, 660-668), Vehicle (cf. Evid. §§ further underlying public policy the burden of a affecting producing presumption evidence. have
As in the we described concerning presumption procedure (b), Penal the trial court should have Code made determination, under Vehicle Code section whether preliminary would been of the nonexistence of embezzlement have finding supported the evidence. by testified she did not intend to embezzle the property,
failed to return it because the tires were bad and the car was unsafe only
6Supra, footnote 1.
1063 addition, that, to drive. In testified Mrs. Welch she appellant’s request, where than informed lessor Smith the vehicle was located on more believed, evidence, one occasion. This would finding ap- support if lacked the fraudulent intent to embezzle necessary deprive pellant (See People Whitney, owner of his Cal.App.2d property. 449]; Witkin, (1963) 391.)
P.2d Cal. Crimes § of the nonexist- Since the evidence was sufficient to a finding support embezzlement, ence of instruction based upon presumption established Vehicle Code section should have been given. *11 Code, (Pen. theft All of the constituent crimes which comprise grand was cir- the of intent 484-487) intent. Here evidence specific §§ require and the of both cumstantial and was contradicted testimony by appellant essence, in Mrs. Yet the instructions concerning Welch. presumptions, consideration by stating of intent from the jury’s removed question were evidence. presumed from certain facts which in intent was the elements of the was thus of her have all of right to deprived a fair trial. did not receive determined she therefore by crime jury; error. This constituted prejudicial
The is reversed. judgment
Kaufman, J., concurred.
GARDNER, P. J. I dissent. a that the defendant rented to their essentials the facts show
Stripped from for a of five car car Mr. Smith days. equipped period a defendant tires which were in condition. The original gave its good address, number, Two false a false and a false employer. telephone Lemoore, later, and in a in months six the car was recovered days garage interim, 4,509 California. In the it driven miles and Mr. Smith had been At had to some tires the car to County. before replace returning Orange arrest, her time of the defendant false name. gave the time the car was communications Mr. During missing, only Smith, (1) (Mr. Smith had call a woman car were: from concerning however, did not know was the defendant and assumed it was some- it else; call)
one in her the defendant said she made testimony, day before the car was back due for an extension of time to return the asking car to which Mr. said that since he could not Smith do request anything (2) about it that it would be all it for a Mrs. right keep days; couple Welch received a letter from the defendant and thereafter called Mr. and said Smith the car was in a in Hanford. garage issued, did was filed Mr. Smith complaint warrant
After car receive a call from had the defendant in which she said she given arrest, she called George over a month the call. her Lackey before After Mr. Smith and asked him to the charges. drop take the that had no intent to wrongfully
The defendant testified she tires; car; that at it had bad that she would have returned it except Hanford, then picked left a street a used car lot in one time she it in behind more, it, drove then it in garage it some let others drive put up again, car was in Lemoore where found. the time the it was During eventually but made no effort to communicate she returned missing, Orange County with Mr. Smith. Her defense me, is overwhelming.
To the evidence of defendant’s guilt difficult more dishonest conduct “It would be to imagine pitiful. record.” as disclosed instant than that of this surreptitious appellant Turner, People v. (Mr. Cal.App.2d Justice Herndon dissenting 263], facts weaker than which the are case in Cal.Rptr. case to be a close one. us.) those in one I do not consider the before *12 strong On the of defendant’s and convincing. the evidence contrary, guilt of the that the to be in their the holding giving correct Assuming majority error, the of instructions two instructions in those was opinion giving my did result in a miscarriage and the manner in which were not they given of justice.
The was as instructed jury thoroughly, fully, properly painstakingly all in all to of law their deliberation. Buried of the to phases necessary these the major- instructions were the found be erroneous by two to proper These two were were not ity. by followed an instruction that presumptions evidence and were to be as such. This lessened not considered instruction the of the to extent became they instructions the that impact challenged worst, a nullity—at the virtually surplusage.
I of these instructions have some about the reservations invalidity case to an stated but this is not grounds appropriate majority, by enter Land” of and disappearing the “Never-Never presumptions. appearing unduly To would reservations these instructions my expound concerning law this add to the of the in area. this dissent and lore prolong nothing erroneous, However, if was done. no injustice even the instructions were I Code section of the instruction on Penal agree that giving because, (b), was subdivision was error at least in not responsive part, to evidence. of The a letter which was returned sending stamped “Moved, de- left no can be as a valid “written address” construed hardly Nevertheless, mand.” I do not would feel that the feel any juror
1065 sent in this case would be a “demand” letter sufficient the presump- put tion into The will effect. told: “Whether some instructions jury will determination of the facts. You will apply your disregard depend upon which instruction state of facts which any applies determine does you (CALJIC 17.31.) not exist.” (b) Penal
Therefore with respect instruction, Hairgrove, v. 18 Cal. People in the case language recent of 142], “Because the App.3d Cal.Rptr. appropriate: [96 especially erroneous instructions we were so are convinced clearly inapplicable, supra, them jury Hairgrove, in disregarded (People its verdict.” reaching 609.) p.
I do with the that the of instructions agree majority complained of intent. matter removed from consideration jury’s question People v. of intent was covered in other Unlike thoroughly instructions. Graham, 153], 71 Cal.2d P.2d where failure Cal.Rptr. error, an instruction was be give found to here defendant reversible was hot of her constitutional deprived have determine right every Thus, constitutional issue presented I take the error to evidence. be of Watson1 Chapman2 rather than From an examination proportions. of case, the entire error, errors, it is that the my opinion complained have not resulted in a find and I no justice miscarriage proba- reasonable bility that a result more favorable to the defendant would have been reached in the absence of these I alleged errors. refuse to a reversal join aof conviction in which the defendant’s is established guilt by overwhelming evidence which reversal is bottomed on as something as instruc- gossamer tions such as these which were buried in mass correct instructions. *13 Although defendant’s trial was not it was fair and the perfect, reached a proper verdict.
I would affirm the judgment.
for a
Respondent’s
hearing by
Court was denied
petition
Supreme
November
1971.
Watson,
1People v.
1065].