PEOPLE v. CRISSUP

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Kenneth Carl CRISSUP, Jr., Defendant and Appellant.

Crim. B003081.

Decided: May 31, 1985

Michael F. Hamud, under appointment by the Court of Appeal, and Linda M. Wilde-Hamud, Montebello, and Deborah Mohr, Pomona, for defendant and appellant. John Van de Kamp, Atty. Gen., Gary R. Hahn and John R. Gorey, Supervising Deputy Attys. Gen., for plaintiff and respondent.

Defendant Kenneth Carl Crissup, Jr., appeals his judgment of conviction of six counts of issuing checks without sufficient funds for their payment.   (Pen.Code, § 476a.) 1  We hold that section 476a is constitutional, but that under In re Dick, infra, the offenses must be listed in chronological order.   Since he can be convicted of only five felony and one misdemeanor counts, we modify the judgment.

FACTS

In January 1982 Crissup opened a checking account at American Commercial Bank.   On May 24, 1982, he closed the account and filed an affidavit of forgery with the bank declaring some of his blank checks had been stolen.   79 checks totaling $10,784 were presented for payment on the closed account.

An amended information charged Crissup with drafting 12 checks between May 15 and May 24, 1982, with insufficient funds for their payment.   Each of four counts charged several checks aggregating over $200;  each of two counts charged one check over $200.   Eleven checks were presented to different Vons Stores and one check was presented to True Value Hardware Store.

The chronological sequence of the checks did not correspond to the numerical sequence of the counts.   For example, Count I charged three checks written on May 20, May 21, and May 20, 1982, for $126.82, $32.57, and $55.85 respectively.   Count V charged three checks written on May 15, May 18, and May 15, 1982, for $50, $60, and $100 respectively.

A jury convicted Crissup of all six counts.   The trial judge sentenced him to one year in the county jail as a condition of five years' probation.

DISCUSSION

Crissup contends that section 476a is unconstitutionally vague because it does not prescribe the method to be used in formulating felony counts where a series of worthless checks exceeds $200.  Section 476a provides in relevant part:  “(a) Any person who ․ willfully, with intent to defraud, makes or draws or utters or delivers any check, or draft or order upon any bank or depository, or person, or firm, or corporation, for the payment of money, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with said bank or depositary, or person, or firm, or corporation, for the payment of such check, draft, or order and all other checks, drafts, or orders upon such funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in the county jail for not more than one year, or in the state prison.  [¶] (b) However, if the total amount of all such checks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed two hundred dollars ($200), the offense is punishable only by imprisonment in the county jail for not more than one year, ․”

Although the information charged Crissup with issuing twelve worthless checks during a ten-day period, the six felony counts did not list the checks in chronological order.   Instead, the checks were charged in an order permitting each count to total a sum as close to $200 as possible.   Therefore, the information charged six felony counts whereas counts charging checks issued in chronological order would only provide five felony counts and one misdemeanor count.

 Due process requires that penal statutes clearly define what is forbidden, because no person should be held criminally responsible for conduct which he could not understand to be proscribed.  (Grayned v. City of Rockford (1972) 408 U.S. 104, 108–109, 92 S.Ct. 2294, 2298–2299, 33 L.Ed.2d 222;  People v. Smith (1984) 35 Cal.3d 798, 809, 201 Cal.Rptr. 311, 678 P.2d 886.)   Explicit standards also prevent discriminatory and arbitrary enforcement:  “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”   (Grayned, supra, 408 U.S. pp. 108–109, 92 S.Ct. pp. 2298–2299.)

 If a general class of offenses can be made constitutionally definite by a reasonable construction of the statute, the court is under a duty to give the statute that construction.  (United States v. Harriss (1954) 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989.)   Such a judicial construction then becomes part of the statute as if it had been amended by the Legislature.   (In re Davis (1966) 242 Cal.App.2d 645, 653, 51 Cal.Rptr. 702.)   Our Supreme Court has construed section 476a in In re Dick (1966) 64 Cal.2d 272, 49 Cal.Rptr. 673, 411 P.2d 561, in a manner obviating the objections Crissup raises here.

Prior to the Supreme Court's decision in In re Dick, supra, innumerable charging possibilities existed, limited only by the legal imagination.   Arguably 51 $1 worthless checks (the $200 limitation was then $50) could be charged as 51 felonies, 1 felony, or several misdemeanors.   However, In re Dick circumscribed the possibilities by establishing the rule that a felony reoccurred each time the statutory misdemeanor dollar limit was exceeded.   (In re Dick, supra, 64 Cal.2d at p. 276, 49 Cal.Rptr. 673, 411 P.2d 561.)

In In re Dick, supra, the defendant had been convicted of seven felonies for issuing seven bad checks totaling approximately $96.   Each check was for an amount under $50 and was charged in a separate count chronologically over a four-month period.   Our Supreme Court held that the issuance of the fourth check, bringing the total dollar amount over $50, was a felony and the first three offenses merged into the fourth.   The remaining counts, relating to checks totaling less than $50, constituted a misdemeanor.   The court then modified the judgment from seven felony convictions to one felony and one misdemeanor conviction.

The court specifically overruled cases which permitted only one felony conviction, regardless of the number and dollar amount of checks written, where the sum total exceeded $50.   The court instead announced a rule of reoccurring felonies:  “[W]hen the felon continues to issue fraudulent checks he cannot do so with complete immunity.   Accordingly, after having committed a felony either by the issuance of a single check or a series of checks the total of which exceeds $50, his issuance of further fraudulent checks or series of checks must be deemed to expose him for a second time to the same penalties as in the case of an original wrongdoer.”  (In re Dick, supra, 64 Cal.2d 272, 276, 49 Cal.Rptr. 673, 411 P.2d 561.)

 We think the decision in In re Dick provided a rational statutory interpretation of section 476a which necessarily requires chronological charging.   This interpretation is implicit in the court's modification of the convictions where the offenses contained in the felony and misdemeanor counts fell in chronological order.   This interpretation inheres in the principle exposing a defendant “for a second time to the same penalties as in the case of an original wrongdoer” where he issues further fraudulent checks after having once reached the dollar ceiling separating a misdemeanor from a felony.  (In re Dick, p. 276, 49 Cal.Rptr. 673, 411 P.2d 561.)   It also assures that all defendants are charged in the same manner because it does not allow the prosecution to have unbridled discretion in determining what checks to aggregate.

Crissup argues that State v. Baker (La.1978) 359 So.2d 110, is persuasive since it concerned similar facts and a worthless check statute.   In Baker fifty-nine worthless checks, passed over a four-month period, were grouped into five felony counts apparently to obtain maximum conviction and sentencing possibilities.   The appellate court held the statute unconstitutionally vague for not specifying criteria for formulating felony counts.  (Id. at p. 114.)  In re Dick answers the arguments common to both Crissup and State v. Baker.

 A statute need not be mathematically exact to be valid nor need it supply “detailed plans and specifications” of prohibited conduct.  (Kelly v. Mahoney (1960) 185 Cal.App.2d 799, 803–804, 8 Cal.Rptr. 521.)   Although we can envision situations where section 476a might be uncertain, those situations are not before us.   Crissup passed 12 worthless checks in reasonably similar amounts during a 10-day period.   The constitutionality of a statute does not depend on conjectured misapplication of its provisions, and a court will not consider every conceivable situation concerning its application.  (People v. Smith, supra, 35 Cal.3d 798, 810, 201 Cal.Rptr. 311, 678 P.2d 886.)

 If Crissup had been chronologically charged in the manner contemplated by In re Dick, supra, he would have been convicted of five felonies and one misdemeanor.

Accordingly, the judgment is modified to show a conviction of five felonies and one misdemeanor and as so modified, affirmed.

FOOTNOTES

1.   All statutory references are to the California Penal Code unless otherwise stated.

GILBERT, Associate Justice.

STONE, P.J., and ABBE, J., concur.

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