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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Gerald SESSLIN, Defendant and Appellant.

Cr. 13155.

Decided: June 28, 1967

Hollopeter & Terry and Don H. Terry, Pasadena, for defendant and appellant. Thomas C. Lynch, Atty. Gen., Daniel J. Kremer and August J. Ginocchio, Deputy Attys. Gen., for plaintiff and respondent.

Defendant and one Harper were accused in seven counts of forgery and in two counts of grand theft.   In a nonjury trial, defendant was found guilty on one count of forgery ($5,800.00 check), and the other counts were dismissed.   Defendant appeals from the judgment.

Appellant contends that he was arrested pursuant to an invalid warrant of arrest;  and, therefore, that exemplars of his handwriting, made at the request of officers after his arrest, were obtained by illegal search and were not admissible in evidence.

It was stipulated that the People's case might be submitted on a transcript of the preliminary examination;  and that the exhibits received in evidence at said examination might be received in evidence at the trial.

During the riots in Watts in 1965, a large number of checks and money orders were stolen from various business establishments in that area.   Two of the checks, for $4,575.00 and for $5,800.00, which were drawn on banks outside California, were deposited in an account in the Commerce City Bank in the City of Commerce, California, in order to facilitate payment from the account before the checks would “clear” the drawee bank.   It is not disputed that those two checks were forged.

On November 27, 1965, Mr. Applegate, an officer of the Commerce City Bank, received a telephone call from the defendant who was a customer of the bank.   Defendant asked Mr. Applegate whether he “wanted to earn some money.”   Defendant also said that he could not “discuss it on the phone,” and asked Mr. Applegate to come to his (defendant's) house on Pine Street in Bell Gardens.

Mr. Applegate went to the house about 6:30 p.m. and defendant told him that a woman would come into the bank with cashier checks “from all over the country” and would deposit them in the bank;  and that if Mr. Applegate would accept them without putting a “hold” on the funds, then he (Applegate) could “make two thousand bucks and some more later.”

About December 1, 1965, Mr. Applegate received another telephone call wherein the defendant referred to the “deal”;  and Mr. Applegate replied that he did not want any part of it.

About December 12, 1965, the check for $5,800.00, payable to the order of Carol Owen, and purportedly signed by Norman Whitt as drawer, was deposited in an account at the bank in the name of Wallace C. King.   The name “Wallace King” was written on the back of the check, and a deposit slip presented with the check was signed, “Wallace C. King.”

On January 12, 1966, Jack A. Hargraves, a police officer, signed a felony complaint, consisting of nine pages.   The first page of the complaint is in substance as follows:  Jack Hargraves, being first duly sworn on oath, upon information and belief complains and says that on December 16, 1965, in the County of Los Angeles, the crime of forgery of fictitious name in violation of section 470 of the Penal Code was committed by Gerald Sesslin and Frank Wesley Wright Harper, who at said time and place, did wilfully, unlawfully, fraudulently and feloniously make, pass, utter and publish a certain fictitious check and order in writing for the payment of money in the sum of $457.00 knowing said check to be fictitious, with intent then and there to cheat and defraud Nellie Allen, City of Commerce Bank, and Handy Payments.

Each of the remaining eight pages of the complaint (pages 2 through 9) relates to one of the remaining eight counts, regarding other fictitious checks allegedly made and passed by defendant and Harper.   Each page contains statements similar to those on page 1, except that the amount of the check involved and the names of the persons allegedly defrauded are different.   Page 3 relates to the $5,800.00 check, and states that defendant and Harper made, passed, uttered and published said check with intent to defraud and cheat Betty Guth, City of Commerce Bank, and Central National Bank, Oklahoma City.

On January 12, 1966, a judge of the municipal court issued a warrant of arrest, directed to any peace officer of the state, which warrant recites in part as follows:  Complaint on oath having this day been laid before me that the crime of “470 PC (7 cts) and 487 PC (2 cts)” has been committed, and accusing defendant Gerald Sesslin thereof, you are thereof commanded forthwith to arrest the above named defendant.

On January 13, 1966, the defendant was arrested pursuant to the warrant, while he was at his office.   He was advised that he had a right to remain silent;  that he was entitled to an attorney;  and that anything he said could be used against him in court.   The arresting officers asked defendant whether he would give them a handwriting exemplar.   Defendant replied in the affirmative, and gave the officers an exemplar of his handwriting.   Several hours later, defendant made another exemplar at the police station.

A handwriting expert testified that the handwriting on the exemplars, the signature (Wallace King) on the back of the $5,800.00 check, the signature (Wallace C. King) on the deposit slip, and numerals appearing on the check and on the deposit slip, had been made by the same person.

Appellant contends that he was arrested pursuant to an invalid warrant of arrest;  and, therefore, that exemplars of his handwriting made at the request of officers after his arrest were obtained by illegal search and were not admissible in evidence.   He asserts that the complaint is defective in that it is made upon the information and belief, and not upon the personal knowledge, of Officer Hargraves;  that the complaint does not designate the name of the informant or the source of the officer's information and belief;  and that the complaint does not state facts, but states “merely conclusions of law” couched in the words of the statute (Pen.Code, § 470), as a basis for probable cause for issuance of the warrant.

Section 806 of the Penal Code provides in part as follows:  “A proceeding for the examination before a magistrate of a person on a charge of an offense originally triable in a superior court must be commenced by written complaint under oath subscribed by the complainant and filed with the magistrate.   Such complaint may be verified on information and belief. * * * ” (Italics added.)   Section 813 of the Penal Code provides that “if such magistrate is satisfied from the complaint that the offense complained of has been committed and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant for arrest of the defendant.”  (See Witkin, Cal. Criminal Procedure, § 97, p. 98.)   Thus, the Legislature has expressly provided that the complaint may be made upon the information and belief of the complainant.

Appellant asserts, in effect, that such legislation permitting a complaint to be made upon information and belief is unconstitutional—that decisions of the United States Supreme Court require that the complaint be made upon the personal knowledge of the complainant and that the complainant disclose in the complaint the source of his information.   Citing Barnes v. State of Texas, 380 U.S. 253 [85 S.Ct. 942, 13 L.Ed.2d 818];  Aguilar v. State of Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723];  Giordenello v. United States, 357 U.S. 480 [78 S.Ct. 1245, 2 L.Ed.2d 1503].)

In the Barnes case (cited in oral argument herein), the decision in a memorandum case was as follows:  “The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted.   The judgment is reversed.  Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503;  Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.”

In the Aguilar case, officers seized narcotics pursuant to a search warrant which was issued upon submission by the officers of the following affidavit:  “Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above prescribed premises for the purpose of sale and use contrary to the provisions of the law.”  (378 U.S. 108, at 109, 84 S.Ct. 1509, at 1511.)   The Texas Court of Criminal Appeals ruled that the narcotics were properly received in evidence.   The United States Supreme Court held (p. 115, 84 S.Ct. p. 1514) that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause.   With reference to personal knowledge of the affiants and disclosure of the source of their information, the Supreme Court said (p. 114, 84 S.Ct. p. 1514):  “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, [11 L.Ed.2d 887,] was ‘credible’ or his information ‘reliable.’ ”  [Italics added.]  (See People v. Talley, 65 Cal.2d 830, 840.  56 Cal.Rptr. 492, 423 P.2d 564.)

 In the present case, the complaint, which Officer Hargraves made upon information and belief as permitted by section 806 of the Penal Code, consists of nine pages and includes (1) references to the dates and amounts of the fictitious checks which were allegedly made and passed by defendant and Harper, (2) the places where the checks were made and passed, and (3) the names of the persons whom defendant and Harper intended to defraud.   The complaint was not defective by reason of its having been made upon information and belief, rather than upon personal knowledge or observations of the complainant.   The complainant was not required to disclose specifically in the complaint the source of his information.   Such sources presumably were the persons whose names appear in the complaint as being the persons whom defendant and Harper intended to defraud.   The complaint contains sufficient information with regard to the fictitious checks to establish probable cause for the issuance of the warrant of arrest.   The warrant was valid.

 Furthermore, it does not appear that any question as to the validity of the warrant was relevant to the question of admissibility in evidence of the handwriting exemplars.   After the defendant had been arrested and advised of his rights to counsel and to remain silent, he voluntarily made handwriting exemplars at his office soon after he was arrested, and at the police station several hours later.  (See People v. Graves, 64 Cal.2d 208 [49 Cal.Rptr. 386, 411 P.2d 114].)  It has been held (People v. Zavala, 239 Cal.App.2d 732, 738 [49 Cal.Rptr. 129] ) that the giving of a Nalline test to a defendant does not violate his privilege against self-incrimination or the constitutional provisions against unreasonable search.

The judgment is affirmed.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.