Buck v. Superior Court

• Decision Date: 09 February 1965
• Citation: 232 Cal.App.2d 153,11 A.L.R.3d 1064,42 Cal.Rptr. 527
• Court: California Court of Appeals Court of Appeals
• Parties: , 11 A.L.R.3d 1064 William BUCK, Petitioner, v. The SUPERIOR COURT of the State of California, Respondent. The PEOPLE of the State of California, Real Party in Interest. Civ. 7841.

Page 527

42 Cal.Rptr. 527

232 Cal.App.2d 153, 11 A.L.R.3d 1064

William BUCK, Petitioner, v. The SUPERIOR COURT of the State of California, Respondent The PEOPLE of the State of California, Real Party in Interest.

Civ. 7841.

District Court of Appeal, Fourth District, California.

Feb. 9, 1965.

Hearing Denied April 6, 1965.

Tropp & Trope and Sorrell Trope, Beverly Hills, for petitioner.

Kenneth Williams, Dist. Atty. of Orange County, and George J. Jeffries, Deputy Dist. Atty., for respondent and real party in interest.

FINLEY, Justice pro tem. ^*

Petitioner was arrested and charged with two counts of theft, in violation of Penal Code, sections 484 and 487. A preliminary hearing was held in the Municipal Court, Anaheim-Fullerton Judicial District, which hearing resulted in petitioner being held to answer in respondent Court. An information was filed therein by the District Attorney of Orange County, charging petitioner not only in two counts with theft, in violation of sections 484 and 487 of the Penal Code, but, in addition, also in two counts, with violation of Penal Code, section 470 (forgery). Petitioner moved respondent Court to set aside the information pursuant to the provisions of subdivision 2 of Penal Code, section 995, to wit:

'That the defendant had been committed without reasonable or probable cause.'

This motion was denied and the case was set for trial. Petitioner seeks from this court a writ of prohibition 'demanding said court to desist from any further proceedings in said action.'

Petitioner is an aluminum siding salesman. The charges here arose out of two separate sales of siding made by him. One sale was to a Mr. and Mrs. May, the other to a Mr. and Mrs. Whorley. In each sale, petitioner is alleged to have produced for signature of the parties a sheaf of forms consisting of a white top copy, under which there was a pink copy and a yellow copy, all separated by carbon paper. The fourth and bottom paper, apparently a deed of trust form, was not separated from the third (yellow) copy by carbon paper. The top sheet contained the caption, 'Lien Contract' and 'Do Not Record.' Just below this, in bracketed bold type, appears, among other admonitions, the following: 'Notice to the buyer: (1) Do not sign this agreement before you read it or if the contains any blank space.' Below this, in smaller type in the body of the instrument, appears this language: '* * * in addition to any other right or remedy given to the holder hereof, the undersigned hereby grants to the holder hereof a deed of trust to the above described real property as security for the faithful performance of his, her of their obligation under this contract.'

From testimony in the record, the truth of which we must assume for purposes of this decision, it appears that the question of the obligations being secured by deeds of trust on the respective properties was discussed by petitioner with the Mays but not with the Whorleys. The Mays told petitioner that they wanted no mortgage or trust deed encumbering their property and they received petitioner's assurance that there would be none. The Whorleys were not advised that they were signing a deed of trust or that a deed of trust would be recorded against their property. The matter was not discussed by petitioner with the Whorleys. It seems, however, that after the Mays and the Whorleys had signed on the top sheet of their respective 'Lien Contracts,' petitioner pushed the bottom of the top three sheets up, exposing only the bottom of the fourth or last sheet which the parties were asked by petitioner to sign and did sign without seeing what appeared thereon above their signatures. It is charged that this last sheet was a deed of trust, the blanks of which had not been filled in at the time but were subsequently filled in by typewriter after the victims had been tricked into signing them, whereas the blanks on the lien contract forms were filled in in handwriting at the time of the signing.

Respondent Court and the People of the State of California, the latter being real party in interest, maintain that the method above-outlined of obtaining the Mays' and Whorleys' signatures to the respective deeds of trust constitutes not only a violation of Penal Code, section 484, defining theft, but also constitutes 'forgery,' in violation of Penal Code, section 470.

Petitioner argues that he was not charged with forgery prior to the preliminary hearing, but that said charge appeared for the first time in the information filed in respondent Court. However, section 739 of the Penal Code provides that a defendant may be charged in the information with 'any offense or offenses shown by the evidence taken before the magistrate to have been committed.' Said offense need not have been charged in the complaint or designated in the order of commitment. (People v. Griffin, 106 Cal.App.2d 531, 235 P.2d 424.) He maintains also that 'there is absolutely no evidence in the transcript of the commission of the offense of forgery * * *.'

Petitioner denies that he tricked the alleged victims into signing the deeds of trust, but places no emphasis on any claim that there is insufficient evidence in the record to legally support such a finding by the Municipal Court in binding the petitioner over. Petitioner does maintain, and places much emphasis on the point, that even though he should admit for the sake of argument that the alleged victims were tricked into signing the deeds of trust, this would not constitute theft under the provisions of Penal Code, sections 484 and 487, for the reason that the instrument itself, which was the object obtained through the trickery, has no ascertainable intrinsic value within the meaning of those code sections. As the proposition is stated by the petitioner:

'The scope of this Memorandum deals with the topic of whether a deed of trust given to secure a just debt or obligation has a value other than a mere intrinsic value, and more particularly whether such a deed of trust has an ascertainable extrinsic value within the meaning of California Penal Code Sections 484 and 487.'

It is admitted by petitioner, solely for the sake of resolving this problem, that execution and delivery of the respective deeds of trust were obtained by petitioner through false representation and trickery. The finding of actual fact is for the trial court if this position is denied and the matter is brought to trial.

Respondent concedes that value of the physical instrument itself is negligible and that 'obtaining a trust deed by false pretenses is not grand theft,' but contends that 'one is guilty of theft by false pretenses who induces another to part with property (a written promise to pay money for aluminum siding) in reliance on a false representation (that the agreement to pay the money will be unsecured),' does constitute theft. Respondent contends that, 'The crime is complete at the moment the purchaser contracts in reliance on the misrepresentation,' and that 'It is immaterial that the victim receives what he bargained for and suffers no loss as a result of the transaction.'

Respondent's theory is set forth in the return to the petition, as follows:

'It is the theory of the People of the State of California that the actions and concealments of Petitioner in denying to victims in Count III and concealing from victims in Count I that there would be a trust deed recorded against victims' property as a result of their purchase of aluminum siding constitutes obtaining money by false pretenses in violation of Penal Code section 484 (Theft). This theory is supported by the evidence of the representations and concealments of defendant, and his actions in having the victims sign the bottom of a sheaf of papers as duplicate contracts when the bottom sheets were instead trust deeds.'

A deed of trust has no market or ascertainable value, apart from the obligation it secures. A trust deed merely hypothecates legal title and does not divest the trustor of his ownership in the property. (Wyser v. Truitt, 95 Cal.App. 727, 273 P. 147) Where deeds to real property are obtained by fraud, there is no delivery or passage of title, and the deeds, being worthless, cannot be made the basis of a charge of grand theft. (People v. Nye, 96 Cal.App. 186, 190, 273 P. 837; People v. Sewall, 90 Cal.App. 496, 265 P. 1040.) But here there was something more than an unauthorized taking of a written instrument. Under our facts, admitted for purposes of discussion, petitioner, by active misrepresentation and fraud in the one case and by concealment together with acts of active misrepresentation in the other, induced the victims to incur legal obligations in the sums of $6,000 each. They changed their legal positions as a result of fraudulent acts of commission and omission on the part of petitioner.

In People v. Bryant, 119 Cal. 595, 597, 51 P. 960, 961, defendant sold the victim a promissory note for $500 secured by a deed of trust falsely representing to the victim that the security was good tillable soil, the land of great value and sufficient as security for payment of the note. He was charged under section 532 of the California Penal Code with larceny. In reversing a judgment of the trial court sustaining a demurrer to the indictment, the court said:

'If a person is induced to part with his property by reason of fraudulent pretenses and misrepresentations, he is thereby defrauded of the property so parted with, even though he may eventually make himself whole in some mode not then contemplated. It is not necessary to show that the property has been absolutely lost to him in order to sustain the charge. He is defrauded of his property when he is induced to part with it by reason of the false and fraudulent pretenses and representations, and the offense is complete when by means of such false pretenses, the fraud thereby intended is consummated by obtaining possession of the property sought. * * * 'If the...