.RU

party - The Standing Committee on Consumer Advocacy/ Legal Services, Section, The State Bar of California

party.

Additional

information

such

as

handwriting

analysis

becomes

public

in

a

criminal

trial

or

administrative

hearing.


Remedies

sought

in

a

civil

action

may

also

be

available

through

the

criminal

courts.

In

addition

to

jail

and

fines,

criminal

courts

have

the

power

to

order

restitution

including,

for

example,

the

reconveyance

of

forged

deeds.

Court-ordered

restitution

is

not

dischargeable

in

a

Chapter

7

bankruptcy.

r

Kelly

v.

Robinson

(1986)

479

U.S.

36.]


VI-58


Relying

on

the

Supreme

Court's

reasoning

in

Kelly

.

most

district

courts

considering

the

issue

have

held

that

criminal

restitution

orders

can

not

be

discharged

in

Chapter

13

bankruptcies.

[See,

e.g.,

In

re

Norman

(D.C.

1989)

95

B.R.

771;

Dept.

of

Public

Welfare

v.

Johnson-Allen

(E.D.

Pa.

1988)

88

B.R.

659;

Devenport

v.

Dept.

of

Public

Welfare

(E.D.

Pa,

1988)

89

B.R.

428;

In

re

Ferris

(E.D.

Pa.

1988)

93

B.R.

729,

731;

see

In

re

Heincv

(9th

Cir.

1988)

858

F.2d

548,

550

(dictum

-

"considerable

doubt

whether

the

restitution

order

would

be

dischargeable");

but

see

In

re

Cullens

(1987)

77

B.R.

825.]


Restitution

may

be

ordered

to

victims

who

were

damaged

by

conduct

which

arose

out

of

the

same

business

through

which

named

victims

were

defrauded,

even

though

the

specific

crimes

against

these

victims

were

not

charged.

[See

e.g.,

People

v.

Miller

(1967)

256

Cal.App.2d

348,

355;

64

Cal.Rptr.

20;

People

v.

Lent

(1975)

15

Cal.3d

481,

487;

124

Cal.Rptr.

905;

People

v.

Lippner

(1933)

219

Cal.

395,

399;

26

P.2d

457

(real

estate

fraud).]

The

court,

however,

not

the

probation

officer,

must

determine

the

amounts

and

recipients

of

restitution,

r

People

v.

Cervantes

(1984)

154

Cal.App.3d

353;

201

Cal.Rptr.

187;

but

see

People

v.

Miller

,

supra,

256

Cal.App.2d

348,

350.]


The

vast

majority

of

misrepresentations

are

oral

and

thus

more

easily

proven

where

several

victims

were


VI-59


similarly

defrauded.

Prosecutions

of

white

collar

crimes

usually

do

not

occur

without

sufficient

evidence

of

multiple

victims.

The

testimony

of

many

victims

establishes

a

pattern

which

not

only

accentuates

guilt

but

buttresses

the

credibility

of

individual

victims.


A

myriad

of

agencies

handle

complaints,

but

because

of

interagency

cooperation,

one

need

not

blanket

agencies

with

copies

of

a

complaint.

It

would

be

helpful

to

provide

a

summary

of

the

complaint

including

the

names

of

principals,

a

statement

of

facts,

and

copies

of

documents

to

at

least

one

general

agency

such

as

the

Attorney

General's

Office,

Consumer

Law

Section;

a

local

prosecutorial

agency

such

as

the

Los

Angeles

City

Attorney's

Office,

Consumer

Unit

or

the

Los

Angeles

County

District

Attorney's

Office,

Consumer

Unit;

a

local

consumer

affairs

agency

such

as

the

Los

Angeles

County

Consumer

Affairs

Department;

or

a

local

law

enforcement

agency

such

as

Los

Angeles

County

Sheriff,

bunco/forgery

unit,

or

the

Los

Angeles

Police

Department,

bunco/forgery

unit.


A

copy

should

also

be

sent

to

any

agency

with

authority

over

specific

licensees.


The

following

is

a

summary

of

some

of

the

principal

crimes

likely

to

be

encountered:


VT-60


Theft

fPen.

Code

S

484

\

-

Theft

may

be

by

false

pretenses,

embezzlement

or

trick

and

device.

Theft

includes

falsely

reporting

one's

"wealth"

so

as

to

obtain

credit

fraudulently.

For

example,

a

purchaser

who

obtains

property

by

false

pretenses

and

then

encumbers

the

property

after

giving

false

credit

information

to

a

lender

may

have

committed

two

counts

of

theft

one

against

the

homeowner

and

one

against

the

lender.

If

the

amount

is

over

$400,

the

offense

is

grand

theft.

(Pen.

Code

§

487.)


Pen.

Code

S

484b

-

This

specific

theft

section

deals

with

diversion

of

funds

received

for

labor,

materials,

services

or

equipment

for

construction.

Funds

may

not

be

used

for

other

projects

or

general

business

expenses

even

if

the

work

is

completed

later

with

the

use

of

other

funds,

r

People

v.

Worrell

(1980)

107

Cal.App.3d

50;

but

see

People

v.

Butcher

(1986)

185

Cal.App.3d

929,

940;

229

Cal.Rptr.

910

(no

violation

unless

"wrongful

diversion

is

a

cause

of

the

failure

to

complete

the

project

or

defray

its

expenses").]


Foraerv

(Pen.

Code

S

470^

-

Forgery

includes

not

just

signing

the

name

of

another

with

intent

to

defraud,

but

also:

(1)

altering,

"uttering,"

or

passing

as

true

a

forged

or

altered

document

with

intent

to

damage,

prejudice

or

defraud

a

person,

and

(2)

inducing

a


VI-61


person

to

sign

a

document

by

fraud

or

trickery.

(See

section

on

forgery,

supra.)


Offering

False

or

Forged

Instrument

For

Record

(Pen.

Code

SS

115

and

115.5)

-

Each

false

or

forged

instrument

which

is

procured

or

offered

for

recordation

is

a

separate

violation.

Each

act

of

procuring

or

offering

for

recordation

a

false

or

forged

instrument

is

a

separate

violation.

Except

under

exceptional

circumstances,

probation

cannot

be

granted

to

a

person

who

has

been

previously

convicted

under

this

section

or

who

is

convicted

of

more

than

one

violation,

with

intent

to

defraud,

in

a

single

proceeding

and

whose

violations

resulted

in

a

loss

exceeding

$100,000.


In

addition,

any

person

who

knowingly

files

a

false

or

forged

document

affecting

title

to,

or

encumbering,

real

property

consisting

of

a

single-family

residence

containing

four

or

fewer

dwelling

units

is

subject

to

a

fine

not

exceeding

$75,000

in

addition

to

any

other

penalty.

[Pen.

Code

1 ... 87 88 89 90 91 92 93 94 ... 97
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