People v. Ali

• Decision Date: 27 March 1967
• Docket Number: Cr. 10182
• Citation: 424 P.2d 932,57 Cal.Rptr. 348,66 Cal.2d 277
• Parties: , 424 P.2d 932 The PEOPLE, Plaintiff and Respondent, v. Nanga-Parbet ALI, Defendant and Appellant. In Bank
• Court: California Supreme Court

Page 348

57 Cal.Rptr. 348

66 Cal.2d 277, 424 P.2d 932

The PEOPLE, Plaintiff and Respondent, v. Nanga-Parbet ALI, Defendant and Appellant.

Cr. 10182.

Supreme Court of California,

In Bank.

March 27, 1967.

Rehearing Denied April 26, 1967.

Nanga-Parbet Ali, in pro. per.

Andrew L. Tobia, Sacramento, under appointment by Supreme Court, and Morgan R. Rodney, Los Angeles, under appointment by Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for plaintiff and respondent.

McCOMB, Associate Justice.

Defendant appeals from a judgment, after trial before a jury, on verdicts finding him guilty on three counts of violating section 484a, subdivision (b), paragraph (6), of the Penal Code.

Facts: The record shows that in each of the three alleged offenses defendant used a credit card which did not belong to him, and which he was not authorized to use, for the purpose of obtaining tires, the value of which was over $50. In each instance, he signed an invoice which has been stamped with the credit card.

In the first instance, the tires were put on an automobile at defendant's direction. In the second and third transactions, delivery of the tires was not made to anyone, because the fraudulent use of the credit card had been discovered.

Questions: First. Is it a crime under section 484a, subdivision (b), paragraph (6), of the Penal Code, which codifies credit card offenses, for an unauthorized holder of a credit card to use the card for the purpose of obtaining goods of a value over $50 by signing an invoice therefor with a false name, when prior to delivery of the goods his intent to defraud is discovered?

Yes. As to the second and third counts, defendant contends that the statute as enacted did not advise him with sufficient clarity that the use of a credit card obtained and held in violation of paragraph (3) of subdivision (b) of Penal Code section 484a is an additional crime even where the attempt to obtain goods, services, or other things of value fails of its purpose.

Paragraph (6) of subdivision (b) of Penal Code section 484a provides: '(b) Any person who:

'* * *(

'(6) Knowingly Uses or attempts to use for the purposes of obtaining goods, property, services or anything of value, a credit card which was obtained, or is held by the user, under circumstances which would constitute a crime under paragraphs (1), (2) or (3) of this subdivision, is also guilty of a misdemeanor if the total amount of goods, property or services or other things of value so obtained by such person does not exceed fifty dollars ($50), or is also guilty of a felony, if the total amount of goods, property or services or other things of value so obtained by such person exceeds fifty dollars ($50).' (Italics added.)

Section 484a of the Penal Code was clearly intended to codify into one section all credit card offenses formerly prosecuted under various sections of the Penal Code; and, as a result of its enactment, a person charged with an offense involving a credit card may not be prosecuted therefor under the general statutes. (People v. Swann, 213 Cal.App.2d 447, 451 (2b), 28 Cal.Rptr. 830.)

The following rules of statutory construction are here applicable:

'The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.' (Pen.Code, § 4.)

'In the construction of a statute * * * the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.' (Code Civ.Proc., § 1858.)

'In the construction of a statute the intention of the Legislature * * * is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.' (Code Civ.Proc., § 1859.)

'Once the intention of the Legislature is ascertained it will be given effect even though it may not be consistent with the strict letter of the statute.' (People v. Black, 45 Cal.App.2d 87, 94, 113 P.2d 746, 750 (hearing denied by Supreme Court).)

By the language used in the statute, the Legislature has clearly shown an intention to include Attempts to use illegally held credit cards, i.e., unsuccessful efforts to use credit cards.

As pointed out above, defendant contends that he was not sufficiently apprised that if he attempted to use an illegally held credit card but failed to accomplish his purpose, he would be guilty of a criminal offense under the statute.

In People v. Hallner, 43 Cal.2d 715, 720--721 (6, 7), 277 P.2d 393, 396, this court said: '* * * '(r)easonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible.' (Citation.) A statute will not be declared void as being indefinite if it contains 'a reasonably...