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District Court of Appeal, First District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Frank H. GRAVES, Jr., Defendant and Appellant.

Cr. 4586.

Decided: June 21, 1965

Richard A. Bancroft, San Francisco, for appellant. Thomas C. Lynch, Atty. Gen. of State of California, Derald E. Granberg, James T. Fousekis, Deputy Attys. Gen., San Francisco, for respondent.

Defendant appeals after jury conviction on November 22, 1963 of three separate counts of check forgeries (Pen.Code § 470). Each of the three checks charged was drawn on the Central Valley National Bank and defendant was the named payee of each. The respective amounts were $308.40, $400.00, and $43.00. Defendant admittedly endorsed his name on the back of each check and deposited the $308.40 check (Count 1) in his account in First Western Bank and the $400.00 check (Count 2) and the $43.00 check (Count 3) in his account at Wells Fargo Bank.

The checks were made out on the regular printed blanks of the Central Valley National Bank. The handwriting on the face of each is in ink and consists of the date, the name of the payee, the amount of the check, and the purported signature of the maker. There were no accounts in such names in said drawee bank. The respective names of the three makers were proven to be fictitious.

On August 27, 1962 an agent of Wells Fargo Bank and an agent of First Western Bank talked to defendant about these and other checks at the defendant's office on Fillmore Street, in San Francisco. Defendant told them that he had received the checks from three different individuals in connection with a real estate transaction. Defendant stated that he did not know much about these persons or where they could be located. All efforts to establish their existence were unavailing.

The agents discussed the matter over the telephone with Inspector Wiebe of the San Francisco Police Department. At his suggestion the agents and the defendant went to his office in the Hall of Justice ‘for purposes of discussion, and to attempt to straighten this matter out.’ There the defendant again stated that he had endorsed and negotiated the said three checks and that they were given to him in connection with a possible purchase of property located on Hayes Street, in San Francisco. Defendant denied having written anything on the face of the checks. At Inspector Wiebe's request defendant wrote out on a sheet of plain white paper everything that was handwritten on each of said checks. He then duplicated these exemplars on a second sheet of the same type of paper.

Inspector Wiebe then took defendant to the District Attorney's office where he again repeated his story, again denying that any of the handwriting on the face of the checks was his but admitting that he had endorsed them on the back. Defendant was ‘booked’ (arrested) at that time, the afternoon of August 27, 1962. No one informed or advised defendant as to any of his legal rights.

The three checks with which defendant was charged herein together with the two pages of exemplars were turned over to criminologist Williams of the San Francisco Police Department for examination. Three or four days later Williams asked Inspector Wiebe to get exemplars on lined paper from defendant, which would more closely imitate the writing on the face of the said three checks.

Inspector Wiebe made such request of defendant, who was then in custody following his arrest. Defendant filled out nine blank checks on printed forms similar to those on which the three checks charged had been filled out. Each of the three checks charged was copied three times, thus providing Williams with nine additional exemplars of defendant's writing.

Williams testified that he requested the additional exemplars after he had been shown the three charged checks and the two pages of exemplars referred to above, adding that ‘It is hard to compare a writing with the printing.’

On cross-examination, the following questions were asked of Williams and the following answers were given in response: ‘Q. But then I understand from Inspector Wiebe that you requested additional signatures, which is now People's Exhibit 17; is that correct? A. Signatures and hand-printing, yes. Q. May I ask why you thought it was necessary to get additional signatures, why wasn't the first signature sufficient, there was—I haven't counted it, but at least 10 times he had written his name. A. I think those are, as I say, written. The material on portions of these [subject] checks, a considerable portion is handprinted, and I needed the printing material.’

The following is from Williams' direct examination: ‘Q. Now, as the result of your study and comparison in connection with your knowledge in this field, do you [have] any opinion as to whether the writer of Exhibits 16 [exemplars given before arrest] and 17 [exemplars given after arrest], the exemplars wrote the material on the face of Exhibits 1, 2 and 3? A. Yes. I have such an opinion. Q. What is your opinion, Mr. Williams? A. My opinion, that the writing on the face of Exhibits 1, 2 and 3 [subject checks] was written by the same person whose writing appears on Exhibits 16 and 17.’

We think that the exemplars written out by defendant at the request of the police, after he had been arrested, constitute evidence which is inadmissible under the rule of People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361. That is, the inquiry as to who had forged the three subject checks had focused on defendant, the defendant had been arrested and taken into custody, the police were seeking to have him make certain written utterances and thus create evidence which would incriminate him, and the defendant had not been informed of his rights to counsel and to refuse to write out more exemplars, and there is no evidence that he had waived either of these rights.

Short of a confession, the defendant could not have made a more incriminating statement than to write out his simulation of the three checks charged. We see no reason to consider the writing here as being in a different category than any other material admission made by a defendant. (See discussion, People v. Collier (May 20, 1965), 234 A.C.A. 675, 681, 44 Cal.Rptr. 465.)

The question remains as to the effect of Article VI, section 4 1/2, of the California Constitution. Under the People's theory of the case, the conviction of defendant is based solely upon the premise that he was the person who had filled out the face of each of the three checks charged. Defendant has consistently denied this, both before the trial and as a witness at the trial. There is no direct testimony to the contrary.

It would be unreasonable to conclude that the jury found defendant guilty on any basis other than that he himself had filled out the checks in question. In so finding, the jury must have relied upon and accepted the testimony of the expert (Williams) that defendant was the person who had done the writing on the face of said checks. The expert admittedly based his opinion in material part upon the evidence which was obtained from defendant in violation of his constitutional rights.

As we stated above, the expert witness pointed out that ‘a considerable portion [of the subject checks] is handprinted, and I needed the printing material.’ This second set of exemplars cannot be construed as being merely a repetition of the first set. On the present state of the record it is a matter of speculation as to whether the expert would or could have given the opinion which he did in the absence of the illegally obtained second set of exemplars. This being so, it was error to admit his opinion in evidence.

We have reviewed the entire cause, including the evidence. After excluding the expert opinion for the reason stated, we have concluded that it is reasonably probable that a result more favorable to the defendant would have been reached if the evidence illegally obtained had not been erroneously admitted. (People v. Watson, 46 Cal.2d 818, 837, 299 P.2d 243.)

The Dorado taint does not attach to the statements made by defendant or to the exemplars written out by defendant before the interview with the District Attorney and the arrest which followed immediately thereafter. These statements and exemplars were given during the investigatory stage and constituted an attempt by defendant to demonstrate to the bank agents and to Inspector Wiebe that he was not the person whose writing appeared upon the face of the checks in question. On the other hand, the tainted exemplars were written by defendant after the accusatory stage had been reached and were made out at the request of the police for the dominant purpose (so far as the police were concerned) of enabling their expert to testify that defendant was the person who had forged said checks.

The judgment is reversed and the purported appeal from the nonappealable order denying a new trial is dismissed.

AGEE, Justice.

SHOEMAKER, P. J., and TAYLOR, J., concur.