PEOPLE v. CLARK

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Gene CLARK, Defendant and Appellant.

Cr. 5413.

Decided: September 16, 1982

Gayle Guynup, under appointment by the Court of Appeal, Santa Rosa, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Joel E. Carey and J. Robert Jibson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Robert Gene Clark appeals from a judgment after being found guilty by a jury of violating Penal Code section 476a, subdivision (a), fraudulent presentation of checks with insufficient funds.

The sole issue in this appeal is whether Government Code section 7480, subdivision (b), which permits a law enforcement officer to obtain bank records when he certifies that a crime report has been filed, requires that the law enforcement officer do so under penalty of perjury.   We conclude it does for the reasons hereinafter stated.

On January 5, 1980, appellant presented three checks, written on his own personal account, to Randy Wise, the manager of Straw Hat Pizza in Visalia.   Wise was acquainted with appellant, who had previously been employed as an assistant manager at Straw Hat.   The checks were in the amounts of $110, $20 and $75, respectively.   On the same day, Wise also cashed a third-party check payable to appellant.   In addition, a fourth check in the amount of $35 was presented for cashing by appellant's wife three days later on January 8.

The checks were subsequently returned unpaid.   The evidence indicated they had been drawn on an account which had been opened in November 1973 and closed in October 1974.   Wise did not report the bad checks until three months after the checks had bounced.   Wise testified he wanted to give appellant the opportunity to make good on the checks.   Wise had already reimbursed Straw Hat out of his own pocket.

Appellant testified on his own behalf and said he had the money a couple of weeks prior to the time he was arrested and that he offered to pay it to Wise.   He further testified he then left the money in a trust account with his attorney.   Wise learned that the funds had been placed in the trust account on the day of the preliminary hearing.   Appellant testified that at no time did he ever intend to trick Wise or defraud Straw Hat Pizza.

At a pretrial motion to suppress evidence pursuant to Penal Code section 1535.5, appellant moved to suppress any and all bank records seized by the Tulare County Sheriff's office or the Visalia Police Department.   During the course of the investigation, Investigator Grossman of the Visalia Police Department sent a form letter to the Security Pacific Bank.   In the letter, Investigator Grossman certified that a crime report had been filed which involved the fraudulent use of checks drawn upon the bank.   The letter requested certain bank records pertaining to appellant.   Pursuant to the request, the bank turned over to the police the signature card and the account number and address of appellant.   This record indicated appellant's account had been closed.   It is conceded by both parties that while Officer Grossman certified that a crime report had been filed, he did not do so under penalty of perjury.

Appellant contends the court below should have granted the motion to suppress the bank records on the ground that they were obtained in violation of Government Code section 7480, subdivision (b), which is a part of the California Right to Financial Privacy Act.

Chapter 20 of the Government Code (§§ 7460–7493) is entitled “Governmental Access to Financial Records.”   As stated in section 7461 of the Government Code, the California Legislature enacted chapter 20 after finding that “Procedures and policies governing the relationship between financial institutions and government agencies have in some cases developed without due regard to citizens' constitutional rights.”   Furthermore, “The confidential relationships between financial institutions and their customers are built on trust and must be preserved and protected.”   The purpose of chapter 20 “is to clarify and protect the confidential relationship between financial institutions and their customers and to balance a citizen's right of privacy with the governmental interest in obtaining information for specific purposes and by specified procedures as set forth in this chapter.”

Under certain limited circumstances, financial data can be acquired where fraudulent conduct is suspected.  Government Code section 7480 specifies the procedure to be utilized in obtaining such information.   Subdivision (b) of this statute provides in pertinent part as follows:

“When any police or sheriff's department or district attorney in this state certifies to a bank, credit union, or savings and loan association in writing that a crime report has been filed which involves the alleged fraudulent use of drafts, checks or other orders drawn upon any bank, credit union, or savings and loan association in this state, such police or sheriff's department or district attorney may request a bank, credit union, or savings and loan association to furnish, and a bank, credit union, or savings and loan association shall supply, a statement setting forth the following information with respect to a customer account specified by the police or sheriff's department or district attorney for a period 30 days prior to and up to 30 days following the date of occurrence of the alleged illegal act involving the account: ․”  (Emphasis added.)

Appellant argues that the term certified to a bank in writing requires an affirmation under penalty of perjury.   The trial court below, in a written ruling, rejected appellant's contention and held that the absence of penalty of perjury language in Government Code section 7480, subdivision (b), was dispositive.  “If the [L]egislature had desired to impose perjury as a penalty for untruthful statements knowingly made in a section 7480(b) certification, it would have expressly said so.”

Appellant's argument is based on two theories.   First, appellant points out that prior to 1976, if a bank were a victim of fraud by someone passing worthless checks, there was no need for a prior judicial determination, and a law enforcement officer could contact a bank in writing or by oral request to review the suspect's bank records.   Appellant argues that the intent of the Legislature when it passed Government Code section 7480, subdivision (b), was to require that every request to a bank “be in writing with a certificate concerning the crime report.”   Appellant contends the Legislature intended to add a “protective devise in order to preserve the right of privacy of bank customers,” citing Government Code section 7461, subdivision (c).

Secondly, appellant contends the term certify means to testify in writing and that the latter “implies an oath in order to have some judicial supervision of law enforcement access to bank records.”

We find only one case that has specifically discussed Government Code section 7480, subdivision (b).  (People v. Muchmore (1979) 92 Cal.App.3d 32, 154 Cal.Rptr. 488.)   In Muchmore, the defendant pleaded guilty and was convicted on one count of passing bad checks with intent to defraud in violation of Penal Code section 476a.   Pursuant to Government Code section 7480, subdivision (b), the police sent a form letter to the bank stating a criminal report had been filed against the defendant and asked for information on his account.   On appeal, Muchmore attempted to complain of a lack of compliance with the provisions of the code section.  (Muchmore, supra, at p. 35, 154 Cal.Rptr. 488.)   However, he never raised the issue at the trial court and the appellate court held that he could not complain of a lack of compliance with the statute on appeal.  (Ibid.)  Muchmore also contended that the police were obligated to advise him at the same time they sent the request to the bank.   The court disagreed.  (Id., at pp. 35–36, 154 Cal.Rptr. 488.)   In addition, the court held that Government Code section 7480, permitting police access to bank records without probable cause to arrest, did not violate the guaranty of privacy contained in California Constitution, article I, section 1.  (Muchmore, supra, at pp. 36–37, 154 Cal.Rptr. 488.)

Respondent basically contends the judicial supervision argued by appellant is provided in other sections of the Financial Privacy Act in the form of subpoena and/or search warrant requirements to obtain customers' financial records.   (See, e.g., Gov.Code, §§ 7474–7476.)   Therefore, respondent contends the judicial supervision rationale cannot support the interpretation of the certification requirement urged by appellant.

Black's Law Dictionary (5th ed.) page 207 defines certify as follows:  “To authenticate or vouch for a thing in writing.   To attest as being true or as represented.”   Black's defines attest as “to affirm to be true or genuine.”   (Id., at p. 117.)   Webster's Third New International Dictionary (1961) page 367 defines certify to mean:  “to attest, esp. authoritatively or formally ․ to confirm ․ to inform with certainty ․ to guarantee.”   In addition, respondent stresses Black's definition of the term certificate.   This definition defines a certificate by a public officer as a “statement written and signed, but not necessarily sworn to, which is by law made evidence of the truth of the facts stated for all or for certain purposes.”  (Black's Law Dict., supra, at p. 205, emphasis added.)   Respondent stresses that in no definition of certify is it mentioned that the statement or declaration must be made under penalty of perjury.

Even though the dictionary definitions of the word certify are not that helpful to appellant, we believe California Code of Civil Procedure section 2015.5 and Penal Code section 118a are persuasive of appellant's position.

 Code of Civil Procedure section 2015.5 provides that a declaration under penalty of perjury is the legal equivalent of an affidavit:

“Whenever, under any law of this state or under any rule, regulation, order or requirment made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.”

We believe this section to mean that if a statute of this state requires that some information be certified, it must be done so under penalty of perjury, signed by the appropriate person, with the date and place of execution subscribed thereon.   In other words, all the police officer would have had to do in the instant case was to state, “I certify under penalty of perjury that the foregoing is true and correct,” sign his name, and give the date and place of execution.

We further note it has been held that a penalty of perjury declaration may be used to support the issuance of an arrest warrant.  (People v. Nagel (1970) 4 Cal.App.3d 458, 461, 84 Cal.Rptr. 353.)   We believe that just as a declaration made under penalty of perjury may support the issuance of an arrest warrant, a declaration under penalty of perjury may support the government's acquisition of bank records pursuant to Government Code section 7480, subdivision (b).

 Penal Code section 118a provides as follows:

“Any person who, in any affidavit taken before any person authorized to administer oaths, swears, affirms, declares, deposes, or certifies that he will testify, declare, depose, or certify before any competent tribunal, officer, or person, in any case then pending or thereafter to be instituted, in any particular manner, or to any particular fact, and in such affidavit willfully and contrary to such oath states as true any material matter which he knows to be false, is guilty of perjury.   In any prosecution under this section, the subsequent testimony of such person, in any action involving the matters in such affidavit contained, which is contrary to any of the matters in such affidavit contained, shall be prima facie evidence that the matters in such affidavit were false.”

We believe Penal Code section 118a provides that if one willfully certifies or swears to a belief in the existence of any particular fact knowing this fact to be false, he is guilty of perjury.   The object of this code section is “to punish those who institute litigation by making false affidavits respecting the facts to which they will testify ․”  (Code Comrs.' Notes, 47 West's Ann.Pen.Code (1970 ed.) p. 258.)

 We conclude that if the word certify is to mean anything, it should mean that the information stated is made under penalty of perjury.   It is clear the Legislature did intend to add protective devices in order to preserve the right of privacy of bank customers when it passed the California Right to Financial Privacy Act.   From this we can only conclude that when a statute uses the term certify it means that the certification must be made under penalty of perjury pursuant to California Code of Civil Procedure section 2015.5.

 As we have concluded it was error to obtain appellant's bank records without the police officer certifying under penalty of perjury that a crime report was filed, our next task is to determine if the error was prejudicial to appellant.   Appellant contends that the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 applies as appellant's federal and state constitutional rights were violated.   This contention, however, has no support in the law.

The error in the instant case does not violate federal constitutional standards.  (United States v. Miller (1976) 425 U.S. 435, 442–443, 96 S.Ct. 1619, 1623–1624, 48 L.Ed.2d 71.)   Neither does the error violate appellant's right of privacy under California law.   While the Supreme Court in Burrows v. Superior Court (1974) 13 Cal.3d 238, 118 Cal.Rptr. 166, 529 P.2d 590 held that a bank customer has a reasonable expectation of privacy in his bank records, the court also stated that “if the bank is not neutral, as for example where it is itself a victim of the defendant's suspected wrongdoing, the depositor's right of privacy will not prevail.”  (Id., at p. 245, 118 Cal.Rptr. 166, 529 P.2d 590, emphasis added.)   In the instant case, the bank was not neutral with respect to appellant's Penal Code section 476a violations.   Since bad checks were presented to and dishonored by the bank, the bank was a potential victim of appellant's wrongful acts.  (People v. Superior Court (Abrahms) (1976) 55 Cal.App.3d 759, 770, 127 Cal.Rptr. 672;  People v. Johnson (1975) 53 Cal.App.3d 394, 396–397, 125 Cal.Rptr. 725.)   Hence, there was no unconstitutional deprivation of appellant's right of privacy in the instant case.   Rather, pursuant to our holding, supra, there was a violation of statutory procedures set out in the Government Code which enable law enforcement officials to acquire certain bank records of depositors.

 Government Code section 7489 provides that “[¶] Evidence obtained in violation of this chapter [Governmental Access to Financial Records] is inadmissible in any proceeding except a proceeding to enforce the provisions of this article.”   Thus, Government Code section 7489 creates a statutory exclusionary rule.   When state standards have been violated, the state is free to apply its own state harmless-error rule.  (Cooper v. California (1967) 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730.)   Hence, we conclude the appropriate standard of prejudice to follow in the instant case is that governed by People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243:  Is it reasonably probable that a result more favorable to appellant would have been reached in absence of the error?  (Id., at p. 836, 299 P.2d 243.)   We conclude in the negative.

The most damaging evidence obtained through the bank records was the fact that appellant's checking account had been closed for a long while.   However, the checks returned to the Straw Hat were stamped “Account Closed” and the testimony of Randy Wise regarding the multiple returned checks was equally as damaging to appellant.   We conclude it is not reasonably probable that a more favorable result to appellant would have been reached in absence of the error.

The judgment is affirmed.

ZENOVICH, Acting Presiding Justice.

PAULINE DAVIS JOHNSON and MARTIN,* JJ., concur.