Petition for a Writ of Certiorari — Walker v. California

Supreme Court brief1967

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Text

INDEX -

Opinions Below. . 2. phi ‘eek

Jurisdiction a Wa a ae ee

Questions presented .., , 4 a aa

Statutes involved ...... ere

a re nse Pwo

Reasons for granting the writ . ee

Conclusion Pea eae ee ees

Appendix "A"

- Appendix "BY"

ae | CITATIONS

_ CASES: © : .

a ——————

“Anders v. California, 35 L.W. 4385. . .

‘Baggetti v. Bullitt, 377 U.S. 360...

_ Ellis v.U.-8., 356 U.S. 67 0. ww

‘Estes v. Texas, 361 “SS eee

- Glaccio Vv. Pennsylvania, 382 U.S. 399 °

Gideon v. Wainwright, 381 U.S. 532 . .

Sandoval v. Rattikin, Trustee ses eae

U.S. v. National Dairy Products tiiecuiicbad,

372: U.S. 29 ‘e + * ed e oo e — “3 e \e @ é ae:

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IN THE SUPREME ‘COURT OF THE UNITED STATES”

OCTOBER TERM, MO es «

see CHANDLER J. WALKER,. Petitionér).

NO! oa eal ‘

|: ‘THE PEOPLE OF THE STATE OF CALIFORNIA .

ory

oO:

PETITION FOR ‘A WRIT OF CERTIORARI TO THE

: "SUPREME COURT OF THE STATE. OF CALIFORNIA | :

CHANDLER J, | WALKER, your petitioner, prays that ae

Writ of Certiorati issue to review the denial of his Peti-

tion for Hearing: by the’ Supreme Court of the State of

California entered February 28, 1967; and effective on

issuance of remittitur ‘March 7, 1967.

7 OPINIONS BELOW |

The Minutes of the Supreme Court of the State of

California, denying the Petition for Hearing are reported |

at 65 A. C. No. 30, Minutes 3 and is printed in Appendix

1 "a hereto, infra, p. 20.

- . °

. ;

- "The opinion of the. California District Court of

@ || Appeal, Third Appellate District, as modified January $3:

_s-|/ 1967, is reported at 247 A.C.A, 632, 55 Cal. Rptr. 726,

a and is printed in Appendix: "A" hereto, infra, pl.

. “The Order of Probation of the Superior Court of

g || the State of California in and for the County of Sacramento

. is not reported, but is printed ‘in Appendix "A" hereto,

g || infra, p. 21. i a

s |

10 JURISDICTION ~~. |

11 poe | The Denial of Petition for Hearing by the

: 12 Supreme Court of the State of California was: entered

| 13 |} February 28, 1967; remittitur was issued on said denial

14] march 7, 1967, and is final. |

| 15 as The federal constitutional questions were

| 16 | raised as indicated at PP. 8 and 7; infra.

17: | 3. The jurisdiction of this Court is invoked

18 under the provisions of -28 U. S. Code, Section 1257(3).

1g. | ) Se aula |

. QUESTIONS PRESENTED

Whether petgrioner’ was deprived of his ) rights

protected by the: |

1. Due pcoenes clause of the Fourteenth, Amend-

ment to the United States Constitution in that he was

convicted under penal provisions which were so indefinite

_and vague as to afford no ascertainable standard of

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2. ‘Due process clause of the Fourteenth Amend-

ment to the United States Constitution in that he was 4

denied a fair trial. _ ved

Je Due process clause of the Fourteenth Amend-

ment to the United States Constitution in that he was

‘convicted \when he had no competent counsel to represent him

in the trial court.

STATUTES INVOLVED |

‘The Fourteenth Amendment to the Constitution. “2

the United States provides in pertinent part as follows:

"...nor shall any State deprive any person of .

life, liberty, or property, without due :

process of law;..." :

The statute describing the situations in which

a'Weit of Certiorari may be sought from a state court de-

cision, 28 U. S. Code, Section 1257(3), reads in pertinent

part as follows: _

"By writ of setbsoeuse, ¢. sii the validity

of a State statute is drawn in question on the

ground of its being repugnant to the Consti- .

tution...as where any...right..,is specially

set up or claimed under the Constitution. .of.

--ethe United States." .

The Penal Code sections of the State of California

Laviived herein are set forth in Appendix B, intre. .

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4, 1967, which was thereafter modified on January 5, 1967.

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of appeal. The Third Appellate District Court of Appeal of .

in the District Court of Appeal on January 18, 1967,

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jal STATEMENT i |

CHANDLER J. WALKER (hereinafter referred to as

Petitioner), was charged by the Grand Jury of the County of

Sacramento ne indictment filed on November 24, 1964, — |

with three Counts of the crime of perjury. The case came on

regularly for trial by jury on March 10, 1965; and on March

29, 1965, the jury returned its verdict, finding Petitioner

guilty as charged in each of the three Counts. On April

19, 1965, Petitioner filed a motion for acned euteicebie®

was denied on ‘April 26, 1965..

On April 26, "1965, the passing -cf-jads gment | and

sentence was suspended and probation was granted for a

period of three years, Petitioner ‘being ordered to serve

three months in the County Jail on each of the three Cotice;.

Count I and III to run concurrently with each other and

consecutively with Count II. |

On April 5, 1965,- Petitioner filed timely notice

the State of California rendered its Opinion on January

Petitioner thereafter timely filed his petition for rehearing |

which said petition was denied January 26, 1967.

Petition for Hearing was filed February 6, 1967, in

the Supreme Court of the State of California. On February’

28, 1967, said petition was denied.- Remittitur was issued on|

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said denial March Zs 1967.

| REASONS FOR GRANTING THE WRIT ieee

"Rie n\n aan The Court below has decided a federal question

of substance ina way probably. not in accord with applicable

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| \ decletous: of this Court. California Penal Code Section 118,

din defining perjury, states in substance that every person

who, having taken an oath to testify truthfully, and who

_then wilfully states a falsehood is guilty of perjury. Peti-

tioner was found guilty of this section and said conviction

was upheld on appeal based on California Penal Code Section

121 which states in substance that it is no defense to pro-.

_secution for perjury that the accused did not take the oath

to tell the truth but merely caused an officer, who could-

administer the oath, to certify that the oath had been taken.|

518 (1966):

These ewe statutes when read together, then, purport to

state, as interpreted by the California Courts below, that

one can be guilty of perjury, that is, wilfully testifying

under oath to a falsehood, even theugh that person is not

under oath. . donde

| ‘The vagueness of die statutory provisions cer- -

tainly appear: on their face. As stated in Giaccio v. 7

Pennsylvania, 382 U. S. 399, 15 L.ed. 2d 447, 86 S. Ct.

"It is sonehiighed that a law fails to meet

the requirements of the due process clause if

it is so vague and standardless that it leaves

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decide, without any

aa ublic uncertain as to the conduct it .

prohibits or leaves jatese and jurors free to

egally fixed standards js

what is prohibited rand what is not in each . e

particular case." Role

“See also Baggett v. Bullitt, 377 U. S. 360, 12 Led. 24 @

377, 84S. Ct. 1316. | 7 i .

“With inna to the instant case the vagueness of sy

‘the statutory scheme is even more evident. As stated in

numerous. United States Supreme Court: opinions a statutory |

scheme is not. looked at in the abstract, but rather as

applied to the facts before the court. See U. S. v.

National Dairy Products Corporation, 372 U. S. 29, 9 L.ed.

2d°561, 83 S. Ct. 594, reg. den. 372 U.S. 961, 10 L.ed. 24

33, 83 S. ct. 1011. Here petitioner was. prosecuted for

signing his name to a deed of trust, asia witness, when he

had in fact not witnessed the signatures of the trustors, .

even though the notary public stated on direct examination

and cross examination ‘that he had not sworn the petitioner

prior to his signing said trust deed.

2. Petitioner was denied. a late trial because of

the adverse publicity prevalent in the Sacramento area re-

garding aluminum siding personnei, coupled ‘with the numerous

\ ene by the prosecution that petitioner was one of the- |

‘\tevede shoe boys.'' During the period. of the trial herein,

state and local law enforcement agencies were prosecuting

members of the aluminum siding industry for their. sharp

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- cution remarks. relating to the aluminum siding industry. The

- District Attorney, could. not help but influence the jury. —

Court, ‘in the landmark’ case of Gideon v. Wainwright, 372

7 practices in lst procuring customers for aluminum siding con-

perjury, was in effect found guilty of being a "guede shoe

1628, and cages cited therein.

Sixth Amendment to the Constitution of the United States,

now incorporated into ‘the Fourteenth Amendment and made

accused had the right to. counsel in a state court prosecu-

tion. In-its reasoning the court stated at pages 344-345:

tracts. Petitioner, though supposedly’ being prosecuted for

boy" by’ association with the aluminum siding industry. The

record is replete with irrelevant testimony as well as prose+

local press carried front page stories on the. industry as a

whole, and these, coupled with the argument “of the Deputy.

* Trial by jury and a fair hearing by the Court, as” s opposed to Salt

a hearing in the newspapers and the community as a whole, on |

long been the criteria set down by this Honorable Court.

Estes v. Texas, 381 U.S. 532, 14 L.. ed. 2d 543, sedi S. Ct.

3. Petitioner, in the trial court; was denied his

constitutional right to the assistance of counsel; The

applicable to the States, provides in part that: "...and

to have the Assistance of Counsel for his defence." This

U. S. 335, 9 L.ed. 2d 799, 87S. Ct. 792, held that an

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"4 defendant's need for & lawyer is nowhere

better stated than in the moving words of Mr.

Justice Sutherland in Powell v. Alabama:

genta yr to be heard would be, in many

cases, of little avail if it did not compre- —

hend the right to be heard by counsel. Even .

the intelligent and educated layman has small

and sometimes no skill im the science of law.

If charged with crime, he is incapable, generally,

of determining for himself whether the indictment .

is good or bad. He is unfamiliar with the rules

of evidence. Left without the aid of counsel

he may be put on trialwithout a proper charge,

and convicted upon inc etent evidence; or

evidence irrelevant to the issue or otherwise

inadmissible. He lacks both the skill and |

knowledge adequately to prepare his defense, .

even though he have a perfect one. He re-

quires the guiding hand of counsel at every

step in the proceedings against him. Without

it, though he be not guilty, he faces the

danger of conviction because he does not know _..

pi Py mena his innocence.’ 287 U. S.,

at 68-69. a? |

In discussing the right to counsel,. this Court,

_ as well as the Constitution, refers to the "Assistance of

Counsel."" This certainly must imply that counsel be compe-_

tent to render the needed assistance to the accused. If ~

~ such counsel not be competent ‘then he could no more aid

the accused in determining whether an: indictment is good |

than could the accused himself. ‘So also if his counsel

not be competent then he could not determine or properly

raise the unconstitutional nature of a statute under which

the accused was charged. |

mt A reading of the transcript illustrates that

‘trial counsel in the instant case nowhere raised the

‘constitutional argument that the statutory scheme under

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prosecutor.

which the petitioner was convicted is void for vagueness. ©

The only constitutional issue presented to the trial court

for its consideration was whether a fair trial had been

| allowed the petitioner. Cir. p. 41} et seq.) ..

In the case of Anders v. California, 35 L.W. 4385,

No. 98 = October Term, 1966, the Court discusses counsel for

the accused as necessarily, being an advocate and not merely

acting as amicus curiae. See also Ellis v. United States,

356 U. S; 674, 675 (1958). | |

Mr. Justice Fortas, with whom Mr. Justice Douglas

joined, in. dissenting from the denial of certiorari in

Sandoval et ux. v. Rattikin, Trustee,385 U. S. 901,

expresses his concern with the need for competent counsel

to fulfill the Constitutional requirement of the Sixth

Amendment, at page 902:

"To some extent,.a lawyer's client like ! |

a doctor's patient must suffer the consequences |

of his champion's mistakes. But there are. limits;

and the courts are and should be = to re-

lieve the client of his lawyer's default when-

ever that is feasible and does not result in

unfairness to others. See Mr. Justice Black's

dissent from the denial of certiorari in

Santana v. United States, ante p. 848,"

Counsel here went through the motions of defending

‘petitioner but nowhere raised the constitutionality of the

Penal Code Sections here involved, or the conduct of the

The trial record establishes that the petitioner

was improperly prejudiced in the minds of the jury and their |

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passions "inflated in each of the following respects, without

objection being raised by. trial counsel:

| .-

The prosecution was permitted to introduce

‘evidence of fraud and chicanery on the part

of the defendant's salesmen which was un- .

connected in any way with defendant on the

‘charges before the Court. (Tr. 300, 301,

316, 317).

‘The prosecution was permitted to impugn

- defendant by intruducing- evidence that

defendant made no investigation of his sales- a |

men before employment. (Tr. 376).

The prosecution was permitted to impugn de-

fendant by introducing evidence that defendant

_. had no knowledge whether the salesmen had

- local permits. (Tr. 367, 368, 370, 373).

The prosecution was permitted to impugn

defendant by evidence that:

(a) The contract. price for work ‘wetcins

substantial. sums returned to them by.

check or cash in the nature of a rebate.

(Tr. 394, 398).

(b) ‘The fact of these rebates was not

reported by defendant to his supplier,

Alcoa Aluminum Co. (Tr. 398).

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. to mention the rebates to Alcoa,

' This lack of timeliness in raising an objection

based on the United States Constitution has so far prevented

a. reversal of the conviction, and is raised in this Court _

of last. resort by. attorneys for the petitioner because of

our duty to preserve his constitutional rights. in our own

role as advocates,

a CONCLUSION.

‘ a“

For the reasons set forth above, it is respectfully

submitted that this Petition for a Writ of Certiorari

should be granted.

CLARENCE H. PEASE

. LALLY, MARTIN, CHIDLAW & VIETS

- Clarence-H. Pease

‘CLARENCE H, PEASE

Attorneys for Petitioner

DATED: May 31, 1967

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of perjury. _ (Pen. Code, sec. 118.) Pronouncement of ee

will follow a statement of the facts.

' provement business specializing in the sale of aluminum

i Appendix a ‘al

IN THE COURT OF APPEAL OF. THE STATE OF CALIFORNIA |

‘IN AND FOR THE THIRD APPELLATE DISTRICT

| _ (Sacramento)

THE PEOPLE OF THE STATE OF CALIFORNIA

.. ') 3 Criminal No.3886

Plaintiff and Respondent, .

)

| )

vs. ; F ) F

Saba )

CHANDLER J. WALKER, )

)

. ' Filed: Jan. 4,.1967

Defendant and Appellant.

Chandler Z. Walker was convicted of three cdunts

judgment was suspended and probation granted. He pro-

perly appeals’ from the order etattius probation. |

The crucial question ‘presented on this appeal io

whether an oath was taken by Walker before a notary pu-

blic. with sufficient foxmality to permit a charge of per-

jury within the meaning of section 118 of the Penal Code.

We hold there were irregularities in the manner in

' which the notary administered the oath to Walker but? \eoungiite

an oath was adninistered ‘and that perjury was proved.

Other points’ urged for reversal are without merit and the

judgment should be affirmed. Explanation of our holding

Walker was the former owner of the West Coast

Construction Company, and as such he was in the home im- +

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products. He employed salesmen whom he described as

' “independent contractors." - These salesmen actually

secured the orders. .

Three sales by the Walker. organization are in-

volved in three counts of perjury prosecutions on which

Walker was convicted: A discussion of one of these

sales in detail will suffice for the purposes of this

opinion.

This was a sale by these "independent contractors"

_to Willis Dunbar and his wife. They agreed to have

- aluminum siding and a roof and canopy placed on their

"home for the sum of $3, 000. To their knowledge they

signed only a credit report and a Job authorization or- -

der. These were in the form of a printed pad with car-

bon paper inserted between counterparts. The. salesman

told the Dunbars that they would have to sign a third

7 copy of the credit application because the carbon paper _

had not shown.an impression of their signatures on the

third counterpart. They did so, believing they were

only signing the credit a aeariatatiaieaatl A work completion.

order was signed upon completion of the job. Dunbar

testified that at no time did he sign a deed ‘of trust;

Mrs. Dunbar's testimony was similar to that of her hus-

band's; and she too testified that she never knowingly

gigned a deed of trust. In fact the proposition that a

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deed of trust would be given had never been discussed.

A deed of trust was introduced: signed by the Dun-

bars. It also included what was proved to be the signa-

ture of Walker “as witness." A form in the following

language appears thereon: ee & ¢-

"(P] ersonally appeared Chandler J. Walker, personally .

‘known to me to be the person whose name is subscribed

to the within Instrument, as a witness thereof, who

being by me duly sworn deposse pare says:. That he re-—

_ sides in Sacramento. and that he was present and saw

Willis F. Dunbar & Lily B. Dunbar personally known to

| him to be the same persons described ‘in and whose names —

| . are subscribed to the within Instrument as Buyers, exe-

cute and deliver the same, and said Buyers acknowledges

(sic) to said affiant that they exécuted the same; and

said affiant subscribed his name thereto as a Witness."

This form was signed by Leonard C. Silvani, a notary |

public. . The form is partially a printed form. The per-

Sonalized portions were proved to have been written in

by Walker who presented the instrument to Silvani to be

notarized. ; | | .

Walker, who testified in-his own behalf, admitted

‘that he had not seen the Dunbars sign the deed of trust.

His defense to the tii of perjury was that he was not

under oath when he appeared before the notary. mS

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. Silvani, the notary, testified that Walker was

under oath. In addition to being a notary, Silvani was

engaged in the real estate mortgage business. He tes-

tified that Walker, periodically during the period when

the transactions involved in the prosecution occurred,

had called upon him to perform notarial duties. His

testimony as to the manner in which he had administered

the oath is equivocal. We have set forth material por-

tions in a footnote.l

. lon direct examination he testified: "Q. [D]id

you swear him to the contents of that a¢knowledgment?—

So in essence, and correct me if I'm wrong, you asked .

Mr. Walker whether or not he had observed the Dunbars °

place their signatures to that document? A. Yes.

Q. And he said 'yes'? A. Yes. Q. And you asked him

whether or not the contents of that. acknowledgment were

true, is that correct? A. I don't recall asking him.

Q. To what you would swear him is true, is that correct

(Mr. Railey [the prosecuting attorney] then raised his

hand demonstrating to the witness what he meant)? .

A. Yes. Q. And what was his response to that? A. ‘He

replied yes. Q. All right, that's what I-want to know.

- + «+ Q. Altogether, approximately how many.times ...

had Mr. Walker appeared before you and been sworn? ...

Q. That he observed the signatures of these trustors to

these Deeds of Trust? A. I'd say several. I don't.

know exactly.". -. a

He testified on cross-examination when asked how

he had administered the oath to Walker: “Well, there

was nothing--nothing physical. I asked Mr. Walker, 'Did

you witness that signatures'? And I mentioned the name

of the trustors and he replied affirmatively and then I

might add that in this inception when I first started -

notarizing documents for him that I told him at that

_ time any documents notarized you had to be under oath to.

have them notarized. And maybe the format wasn't what

it should be, but--he was under oath. There was no

(continued on next page) Pass

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The evidence regarding the other charges is.

similar. It is unnecessary to discuss them in detail.

The prosecution showed with reference to the charge in-

||| volving other customers (Houston and Herise Brengettsey) .

that Walker had told a deputy district attorney that he

had signed the deed of trust as a witness to their sig-

natures but without actually having been presept when.

, ie E

_ they signed; that he had written up the certificate be-

‘fore presenting it to Silvani and had obtained -Mr. Sil-

vani's signature 4s the notary and’ that the notary's

seal had been affixed. (He also stated that in all

cases this procedure was for the purpose of making it

possible for him to record the deeds of trust.)

' (contiriued from page 4).

raising of the hand or anything. I asked him if he wit-

nessed. the signatures and he had." ; :

Later he testified:: ". . . I considered he was

under oath, and he knew-it."

In response to a question by the court: | "(W] hen

Mr. Walker came in to your office, did he raise his right

‘hand and solemnly swear that the writing he was going to

make was the truth, the whole truth and nothing but the

truth, did he do that? A. Not in that terminology, no."

On redirect: "Q. .. . Now are you convinced that

he understood he was swearing to the authenticity of those

Signatures? A. Yes. Q. Would you tell him? A. Would

I tell him he was swearing to the authenticity? Q. Yes.

A. I would tell him that."

- 5 -

As to his understanding about being under oath

‘Walker had stated to the attorney: "Q. And ec. tdvens, -

did you appear before him personally at that time? A.

Yes, I did. Q. And. did he administer an oath? A. I

would say so. Q. Yes. Now had you really witnessed

‘their signatures on this. document? A, Set had. not. °2 ‘

Government Code section 27287 . provides in part |

here material: "[B]efore an instrument can be recorded

its execution shall be acknowledged “a the person exe-

| cuting it ° = - or proved by sen iaiaictatties witness Be

2In his testimony at the trial Walker rétracted

this statement. After having admitted he had not ac-

tually witnessed any of the signatures on the\ deeds of

‘trust,.he testified on direct examination a. Do

you recall the details on each time you we (before.

Silvani to have his proof of signature as witness no-

tarized] on each particular one? A.- No. .Q. You

don't recall any? A. I don't recall the details, no.

» « « Q. Do you have any explanation as to why you

appeared before Mr. Silvani and said that you witnessed

the signatures'’when you weren't the one that did wit-

ness them; somebody else did. Do you have any explana-

tion for the jury and the court? A. Well, I treated it--

this, prior to the first contact with the District

Attorney's Office--I treated the deeds of trust ina

rather careless and light fashion. ...

He Later testified: "Q. Well, if you don't re-

call--I mean, your, testimony is you don't recall having

transacted the notarization, so you couldn't recall as °

a basis where you admit you were sworn or administered

an oath? The question is -- [A colloquy between coun-

sel and the court followed] 9. Mr. Walker, on any

occasion did Mr. Silvani swear you in and did you take

an oath on any of the notarizations involved in this

/ proceeding, or at any time? A. No. Q. And I'm making ~

/ reference to the raising of the hand and things like

that? A. No."

» 6 @

- and the acknowledgtient of proof CMe EEO as prescribed

_by daw.”

An "acknowledgment" is not here involved;. there

was a purported . proof by a purported subscribing wit- /

ness with a ‘purported sworn certificate. Such proof,

of course, under oath, with the notary’ & certificate is

a prerequisite to geoordation: (Govt. Code, sec. 27287,

supra.) The evidence ‘Shows Walker knew this. It was

his purpose to obtain a recordation of the deed of trust

established to have been obtained. fraudulently. The

—_

‘latter act is not that for /which he was being prosecuted.

This does not’mean that knowledge of the necessity of .

an oath is unimportant.

Section 218. of the Penal Code provides in part

that "Every person who, having taken an oath that he

_ will testify, declare, depose or certify truly before ~

any competent . . - person, in any of. the cases in. which

such an Oath may by law be administered, wilfully and

contrary to such oath, states as ‘true any material

Matter which he knows to be false. . . is guilty of

perjury."

A false statement pursuant to the proof or:

acknowledgment of an instrument before a notary public

may be the basis of a charge of perjury. (Ex parte -/

Carpenter, 64 Cal. 267; Civ.. Code, sec. 1181; ‘gee also —

-7-

~nessing the signatures to an instrument in writing.

| was administered in an irregular manner, or that the

People v. Teixeira, 59 Cal.App. 598.) This rule, of

‘course, applies to an oath administered by a notary on.

_a proof by a subscribing witness.

To convict one. of the crime of perjury in vio-.

fation of Penal Code section 118 it must be proved that

| the defendant: . {1) took an oath that’ he would testify,

declare, depose or certify truly before (2) a cenpenent

| tribunal or person (3) that such oath was taken in a

ease in which an oath may be lawfully administered, .and

(4) that the accused wilfully and contrary to such oath

stated as true, a material fact which he knew was false.

(People v. Gilbert, 217 Cal.App.2d 662, 666; People Vv.

Baranov, 201 Cal.App.2d 52, 57-58.) | :

The manner of administering an oath in "an action

‘or proceeding” is carefully spelled out. (Code Civ.

Proc., b6c. 2094.) Singularly enough we find no spe-

¢ial form prescribed for the administering of an oath |

when,.as here, a party is certifying to his act of wit-

' Section 121 of the Penal Code provides: “It is

no-defense to a prosecution for perjury that the oath

person accused of perjury did not go before, or was not

in the presence of, the officer purportizig to aGuensotes.

the oath, if such accused caused or procured such

| officer to certify that the oath had been taken or

“ig administered. “ |

3 Although no California authority, applying this

4 section has been cited by counsel’ (and we find wails

5 with facts paralleling those of the case at bench, there .

6 are cases which-assist us in determination of the pro-

7 blem presented. |

8 In Peters v. City and County of San Francisco,

9 41 cal. 2a 419, our Supreme Court has stated (at p. 426):

10 “The claim: may be regarded as a 'verified' one within the

11 meaning of the statute although plaintiff did not appear

12 before a notary to sign the verification. (C£. Germ Ve

13 City & County of San Francisco, 99 Cal.App.2d 404 [222

14 P.2d 122] [involving an identical provision in the city

15 charter). The object of requiring verification is to

16 hold the claimant responsible for any’ false statements

17 made in the claim, and, as pointed out in the Germ

18 ouee,. it is no defense to a prosecution for perjury

19 that the person accused of swearing falsely ‘did not go

20 before, or was not. in the presence 6f, the officer

21 purporting to administer the oath, if such accused

22 ownees or procured such officer to certify that the

23 ‘| - dats had been taken or administered, ' (Germ v. City &

24 County of dan Peanciecd, 99 Cal.App.2d 404, 413-414

25 || [222 p.2d 122]; Pen. Code, sec. 121; see People v.

re (2 9s aor

: |

‘Darcy, 59 Cal.App.2d 342 [139 P.2d 118].) It may’ be.

inferred from the evidence that plaintiff ‘was aware

that she was seauives eo sign the verification under -

oath, and her attorney caused the notary te SOECEST

that. plaintiff had sworn to the statement made in the

claim. | Accordingly, it appears that there has been

substantial compliance with the statutory requirement

of verification." | |

The case’ before us shows, we think, closer com-

pliance with the requirements of oath-administration

than was present in Peters,. supra.

In People v. Brown, 125 Cal.App.2d 83, it was

held (at p.88) that it was not necessary that the words

given that defendant had raised his hand in making

his statement. (Here Silvani had indicated on direct

examination that Walker had raised his hand, but the

weight’ of this testimony was, it must be recognized,

lessened by his admission on cross-examination that

“there was nothing physical" in the adninistering of .

the oath. Also when ‘the court asked the compound and

leading question, re a .. did he raise his right hand

and eaten swear that the writing he was going to

make [NB, that Walker had already made the writing]

was the ‘ruck, the whole truth and nothing but the

"oath", “swear” or-"depose" be used. There evidence was

: ’

a ad .

fA FPL OE IY TOLLE EK TU ‘ Ltinjaibhciel rw , eager ?

Ped IOP + Ds ae C1 eR Eten oA) kia iS tn be thins Di Pom ae en SS SES Se eee

. a :

ey truth, aid he do that? the answer was: "Not in that -

2 terminology, no." Unexplored was the. exact, or the

3 gist: of,.the terminology which was used. (See foot-

4 {| note l.) AN

5 In People v. Darcy, 59 Cal.App.2d 342, the court

. 6 states (at p, 350): "A person who, being required by

7 || law to make a sgatement under cath, willfully and

8 knowins ay falsifies such statement; purportedly made

9 sates oath, in any particular, is guilty of perjury

10 as a matter of law ‘whethex or not the oath was in fact

11 | taken (sec. 129), rr and ‘the: offense is complete upon

12 || delivery of the affidavit to another person, with the in-~

13 tent that it be uttered or published as true,"

14 ‘turning to other juriedictions, we. find cases

15 with facts siniiaz to the case before us.

16 In State v. Anderson tmens.) 285 P.2d 1073, a

17 - deputy sheriff went before a county judge and as a- .

18 jf result of the statements he made a complaint was pre-

19 pared. The complaint stated: "Duane Anderson being 7

20 duly sworn, en oath says ie oe ts After the complaint

21 was: prepared-it was executed by the deputy and a warrant

22, was issued and a party arrested. In the prosecution»

23 i for perjury against the deputy, he claimed that he was

24 not under oath, as the judge charged with administering

25 || ' the oath, signed the same in silence and without state-

26 . vee | | - «# 2 |

o OY 2H hm ww D-H

ments or questions to the deputy. There was at the

time a Kansas statute requiring the laying of the

right hand on the Holy’Bible in the taking of an oath.

The court said, however, *. - it is common knowledge

' that such requirements are not always complied with

strictly. The question is whether .. under the circum-

iam what was done was (a] ... . nullity." The

court pointed out that the deputy read the statement —

after the judge prepared it’ and further commented:

"surely some weight must be given to opening state-

ments of the complaint and to the physical acts of the

party even though statutory formalities were not ob-

served." The theory of the court was that there was

nothing to show that there was a design by either the

judge or Anderson to have Anderson “unsworn." Thus,

silence did not- outweigh the wording of the SunSnesanee

‘and the actual signing in viewoF the fact. that there

was nothing from which it could be concluded that: the

party intended not to be sworn. In the case at bench.

Walker not only read the statement, he had prepared it.

There ‘is a comprehensive note (as of 1927) in 51

American: tow Reports 840 on cases covering the formali-

ties required in the administering of oaths. The note

is annotation to a reported case, Atwood v. State of

Mississippi (Miss.) 111 So. 865, 51 A.L.R. 836. There

~ -~ fF

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16 |

— PONG AP CLI IE IE AIS AD UO ad ee} nemmymaccsonen pres ae SS grpe,

bmw tot, 3h LAA RO 1 NO CAE LAA A OE th ak APO 800 ik in Ripa s+ 6s 7 2 lac and 2 hee

. +

‘

the questioned "oath" was administered by a justice of

‘the peace to an affidavit for a search warrant. The

officer did not require the affiant to hold up his hand

to be sworn, nor was there formal oral administration

of the oath; but as the opinion states (on Pp. 838 of 51

A.L.R.). "the evidence shows, without conflict, ‘that both.

the affiant and the justice of the peace knew and réalized

that an oath-was necessary before a search warrant could .

be obtained, and that they considered what was done at.

the time the oath was signed by the affiant and the-

warrant issued by the justice of the peace to be suf-

ficient in law to constitute an oath. . .. Both of

them ‘understood, without anything being saia@l to that

effect, that the affiant was making the necessary affi-

davit to obtain the search warrant.”

In the note in 51 American Law Reports 840 et

seq. other authorities expressing rigid rules are cited

as well as those stating iibesad rules. We take the

position that the California Legislature, by the pro- °

; visions of Penal Code section 121, has committed this

state to a liberal policy in ruling upon the ‘question

whether compliance with formalities in oath taking has

' ’ ; -

been had. We pay willing obedience to that rule. The

busy business world of today inevitably spawns informality

in the performance of ceremonial functions, particularly |

- 13 -

aie Sa ae en eae ee

_ those which are (at least “in some respects) \. the ves-

‘‘tiges of a more ritualistic era. We look, modernly,

to wabotance- neue than form. In the field of law Tato

which this case falls the manifested intent with which

an act is done should weigh more heavily than the ob-

servance of punctiliousness in its ceremonial aspects.

Symbolism should not. be confused with solemnization.

Here, _ aithough considerably Goubt attends the testimony,

both of the notary and of defendant Walker as to just

what acts did occur when the "proof" was made and cer-

cified to, there is no question whatever: about the

following: (1) Walker himself pygpared--wrote out--

the very form which states, "Chandler J. Walker oe «

being by me duly sworn deposes and says ee did rid Walker

‘had ‘the specific intent to make the statement as a sworn

‘statement, and he was well a that the instrument

would be regarded as one sworn to--to the end that it

‘could be placed of record; (3) he approached the* notary.

to have the necessary form notarized; (4) he was informed

by the notary to the effect that he, Walker, would be

regarded as being under. oath, and (5) both the notary.

and Walker regarded the latter as being ‘under oath. We

hold under the facts related there was sufficient sub-

stantial evidence -before the. jury, adequately instructed,

_to justify its implied finding that the formalities of

A es -14- Ke | aan

oath taking had been complied with.>

1 ;

2 Walker also contends that adverse publicity hed on

3 a profound prejudicial effect upon the fairness of hike -

rt trial. It is asserted that there waé ‘almost a fairly

| 5 front page feature story in the local press setting

6 |} forth accusations made against "inethical practices in

“9 the aluminum siding industry." ee: 7

8 The record does not show any motion for a diaiage

9 of venue made. A defendant may not claim for the first

10 time on appeal that. he was depsived of a fair trial em

ql eon an unbiased jury because of newspaper publicity

eT | where with full imowledge of the publicity he made no -:

13 objection and failed to move for a change of venue.

14 | (People v. Magee, 217 Cal.App.2d 443.) Moreover, there

15 is no stiowing in this record either of the extent or

16 || Come ee, apna |

hood Even on’ the question as to whether there was

17 | actually a hand-raising ceremony there is conflict.

“+ - Silvani's direct testimony that there was suffers by —

18} his statements on cross-examination, particularly his.

‘negative answer to the judge's question. (Sce foot-

19 |; note.1, supra.) But Walker acknowledged that on one

occasion at least he had been sworn. Silvani testified

20 there was a solemnization ceremony of some sort. Our

; code spells out no particular words which must be used;

21 on the contrary it condones informality of fact. Where —

i there is a conflict in the testimony a reviewing court

‘Goes not reweigh; we do not have to be convinced of a .

fact necessary to establish guilt beyond a reasonable

doubt; our inguiry ends when we find substantial evidence

from which a jury reasonably could be so convinced.

(People v. Hall, 62 Cal.2d 104, 109-110; People v. Ro-

-pbillard, 55 Cal.2d 88, 93; People v. Daugherty, 40 Cal.

2d 876, 885.). sf Suey Oe 0%

- 15 -

~~. -

eee ee

SOLER RE RR ee weet ee ee

cer een een RAM ALLY AGERE EN

scope of the adverse publicity: or “that. it was impossible

“ ©

to secure an impartial trial.

X : |

/ Appellant claims that the prosecution inflamed

the jury with reference to.Walker and his salesmen as —

"suece shoe boys” and “aluminum siding racketeers."

‘There is a reference to “suede shoe boys" in: thie argument

by defense . counsel on motion for a new trial. y The dis-

trict’ ‘attorney’ S arguménts to the jury are not in the

recoré. We have no way of knowing. whether the remark.

was made; if made, whether they were objected to or. in

what context the statements were uttered. An appellate

court will not consider statements of error asserted_in—

a breif which are not supported by the record. (People

v. Boyden, 181 Cal.App.2d 48; People v. Deriso, 222 Cal.

App. 24 478. y:

‘Moreover, perjury is a specific intent crime.

(People v. Guasti, 110 Cal.App.2d 456, 464.) As we

have shown, proof by the prosecution that Walker inten-

@ es ras. |

tionally swore falsely to serve his nefarious purposes

was an important factor in the state's case. There was

" overwhelming evidence that his purposes were “iniquitous.

A prosecuting attorney may use appropriate epithets

| warranted by the evidence. {People v. Mitchell, 63 Cal.

2d 805, 809.) We see no ‘reason to exclude such an

epithet —— because it is one properly catalogued @ as

- - 16 -

OEM LP AGED ICR

-being within the vulgate. - .

a oe purported appeal from the order denying the _

motion for new-trial is dismissed. The judgment is

_ affirmed.. > 3 ;

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IN. THE COURT OF APPEAY OF THE STATE OF CALIFORNIA.

“IN and POR THE THIRD APPELLATE DISTRICT

(@edteneste) Hiatt By eee

\ JHE PEOPLE OF THE STATE OF CALIFORNIA, |

- Plaintiff and Respondent,

vs. @

CHANDLER PP WALKER,

® eer eet eee ee

Defendant and Appellant.

MODIFICATION OF OPINION

BY THE COURT: |

The tvpewritten opinion of: tate court in the above

entitled. case filed January 3, 1967, is modified as ‘follows:

On page ll, ‘last Paragraph, strike the word ” judgment”

and insert the’ fol lowing: “atdar granting probation,” The :

_ 3 Criminal No, 3886

sentence will then read: “The order granting probetion. is affirmed, %

PECDLG OF THE STATE OF CALITORIZA eee i

' CHANDEBR 7. WALKER : |

ae ; Pe,

(eewhetorney General (Nelson Kempsky)

™ |

IN THE.

“Bast Gout of Agel of he ate of Gtr

‘THIRD APPELLATE, DISTRICT

vse ee vo le le 2 3 Cpdme, 3686

— sppel dent's petition Zor zchoaring is denied.

," |

ee Ra 3 } | a ee Nae Beat

| 7 “PEERCS, PS Te

winhion 8. Swaigert

. 36S P e Caxvrolil

Resorter of Decisions”

JANS wv G 1967 ° ‘

GIST. COURT CF. eg DIST. :

_ WILFRIED J. KRAMER

Qy-—-

CM eG ee ene oie are

KY Oo

”

IN THE SUPREME COURT

(OF THE

STATE. OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA. - 3 Criminal

CHANDLER J. WALKER.

By the Court: ce 7

Appellant's petition for hearing denied.

DATED: February 28, 1967

(CHANDLER J, WALKER, Defendant.

by a jury of the. ‘crime of Perjury, as charged in Counts 1,

2 and 3 of tie Indictment, and made application for proba-_

‘SUPERIOR COURT OF THE STATE OF CALIFORNIA IN, AND FOR

THE COUNTY OF SACRAMENTO :

Xe. 28702 Department 5

Hon. ELVIN F. SHEEHY R

> Judge of the Superior ~

; al Court

PEOPLE OF THE STATE OF CALTFORNIA, ) $2 . ae

vs. ae ORDER OF PROBATION

WHEREAS, on ‘the 29th day of March, 1965, the said

defendant appeared before ‘the Court and was found Guilty

tion; and

ne WHEREAS, on this date the Court being fully

advised and having considered the report heretofore filed

by the Probation Officer in the above entitled case;

IT IS ORDERED that the matter of passing judgment

and sentence is suspended for a osetia of three (3) years,

‘during which time the defendant, CHANDLER J. WALKER,’ will

be on probation; and | x a, !

IT Is. FURTHER ORDERED that said defendant,

CHANDLER ; WALKER, be and he is hereby confined in the

County Jail of the County of Sacramento for a period of —

‘three (3) months as to Count 1, and that said defendant |

be and he is ici confined in the ‘County Jail of the County

-21- :

o oN ®@ oT eke Bw ND

' o£ Sacramento: for a period of three (3) months as to Count

2, said term to be served consecutively as to the term of |

confinement as to Count 1, and that said defendant be and

‘he is hereby confined in the County Jail of the County ”

of Sacramento for a period of three (3) months as to Count

ae said term to be served concurrently as to the term of

confinement as to Count 2, the same to constitute the first —

six (6) months of this Order of Probation; and | P

‘It is the Order of the Court that you, CHANDLER |

J, WALKER, shall, during your term of Probation, comply in

all-respects with the following General Conditions of pro- |

bation as authorized by the provisions of the Probation sad

Statutes of the. State of California. Further, that you

. shall comply in all respects with any Special Conditions

of Probation contained in your Order of Probation or which

may subsequently be ordered by the Court or the Probation

: 1. Obey all Laws applicable to you. —

2. Live a respectable, honest, and temperate life.

33 Keep only good company and respectable hours. |

. Not frequent or visit any undesirable

establishment or places.

5. Be gainfully employed at employment approved >

by the Probation Officer having your super~ :

vision; not voluntarily change employment |

without having first gained apgroves for such

- change; or if discharged, or if: your employ-

ment is terminated (either permanently or _

temporarily) for any cause whatsoever, you are |.

to notify your Probation Officer within 48 hours.

eee =22-_

a ie pteogoe

‘oo ® N @f A, e&® aA DOD

~~ »- ~F YF KY FY KF &

YN ogo qo & WA NO fF O

“yesidence for more than 2

You are not to remain gg from your regular

ide hours without first

having secured permission from your Probation

Officer. You are to notify your. Probation

- Officer at once of any intended change of ad-

_. dress and the reasons therefor. :

10.

You-are to contribute regularly. to the support

and maintenance of all those for whose si rt

and maintenance you are legally responsible.

You are to follow in all respects any reason-

able instructions given to you by the Probat@pn |

Officer having your supervision. a

-You are to report‘in person to the Division

of Adult Probation at such times and dates as

the Probation Officer having your supervision

‘may direct. (If for any reason beyond your

- control you are unable to report on. your

assigned date and time, you shall communicate

this fact to the Division of Adult Probation.

on or before the assigned date.) —

You shall allow Probation Officers to visit

your home and places of employment at — * e

reasonable times. . eat ou.

- You ‘are hereby advised that failure by you to comply with

all of the foregoing General Conditions of Probation or

any Special Conditions of Probation will make you liable.

(1) to have this probation revoked, extended, or amended

which may result im the imposition of any sentence’ the

Court could have imposed on you before you were placed on

‘probation; (2) your confinement in the County Jail for

intermittent periods; (3) the extension of your probation

up to the maximum provided by law; (4) the change of or .

adding to the conditions of. your probation within the

‘limits of the Probation Statutes. |

A The term of this order of probation shall be three

-23--

POD) 9 ROE hs AGELESS DG IES Mpa ep

13.

Witnessed by:

(3) years.

Done in open Court this 26th day of april, 1965. ee

ATTEST: ie i nae . |

By s/ G. L. Swetzer Swch. Mpp_pi teat ial

Deputy :

g/ Elwin-F. Sheehy —_

Judge of the Superior Court

The foregoing terms and Conditions of Probation have been

explained to’me and I fully understand them and agree

in every particular to abide by them.

Date Med

: Probationer

- Officer ©

Sec. 1203.4, Penal Code: PROBATIONER MAY WITHDRAW

PLEA OF GUILTY

Every defendant who has fulfilled the ced of

his probation for ‘the entire period thereof, or who. shall.

have been discharged from probation prior to the termination

of the ‘period thereof, shall at any time thereafter be

permitted by the court to withdraw his plea of guilty and

enter a plea of not guilty; or if he has been convicted

after a plea of not guilty, the court shall set aside the.

verdict of i icles and in either case the court’ shall tnenes

upon dismiss “the accusations or information against such |

-24-

. a

‘under Section 12021.

defendant, who shall - thereafter. be released from a1 ee

and disabilities resulting From the offense or crime of

which he has been convicted. . The probationer shall be .

authorized in writing; provided, that in ‘any subsequent

prosecution of' such defendant for any other offense, such

prior conviction. may be pleaded and proved and shall have

the same effect as if probation had not been granted or

* Dismissal of an secusation or information pursuant

to this section does not permit a person to own, possess

or have in his custody or control any. firearm capable of

being concealed upon the person or prevent his conviction

informed of this right and privilege ‘in his probation pepers.|

The probationer may make. ‘such application and change of plea’

in person or by attorney, or by the rinre officer

~ the sonamanten or information. dismissed.

nv F Oo

. +92

‘which he

APPENDIX '"'B"'.

California Penal Code Section 118:

"Every. person who, having taken an oath that

he will testify, declare, depose, or certify truly

before any competent tribunal, officer, or person, |

in any of the cases

law be administered

in which such an oath may by

, wilfully and contrary to —

Oe ee Se as true any material matter

ee range von cg

peralty of perjury

such testimony, dec

certification is

of perjury and wilf

material matter whi

guilty of perjury."

ows to be false, and every person who

» deposes, or certifies under

in any of the cases in which

larations, depositions, or

permitted by law under penalty

a. ve as true any

ch knows to be false, is

California Penal Code Section 121:.

"Te is -no. defe

nse to a prosecution for per-

jury that the oath was administered or taken in .

an irregular manner, or that the person accused

of perjury did not

presence of, the of

the oath, if such accused caused or procured such

officer to certify

or administered.

go before, or was not in the

icer purporting to administer

that the oath had been taken >

oN oak a pnp we

~ -

on KK Oo ©

‘14

15°

16 ||

“17

24 |

PROOF OF SERVICE BY MAIL - 1013a, 2015.5 C. C. P.

STATE OF | CALIFORNIA )

ss.

1} County of ‘Sacramento =

L am a citizen of the United States and a covitent

of the Comiy aforesaid; I am over the age of eighteen -

| years and hot a party to the within abéve entitled action;

my business address is 926 J Building, Sacramento, California.

On the | ond day of June _, 1967, I aswwnd

‘the within Petition for a Writ of Certiorari to the Supreme .

Court of the State of California on the below named in said

action, by placing a true copy thereof enclosed in a.

sealed envelope with postage thereon fully prepaid, _in the

United States post office mail box at hecuiinniee, California,

addressed as follows:

Attorney General of t ate of California

500 Wells Fargo Bank Buil a

Fifth Street and Capitol Mal

Sacramento, California 95814

Honorable Thomas C. L “Stat

DATED: This 29d day of June _, 1967,

I declare under ied of sie that the fore-

on shila

Clarence H. Pease -

| going is true and correct.:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.