People v. Camodeca

• Decision Date: 12 May 1959
• Docket Number: Cr. 6412
• Citation: 338 P.2d 903,52 Cal.2d 142
• Court: California Supreme Court
• Parties: PEOPLE of the State of California, Respondent, v. Frank CAMODECA, Appellant.

Page 903

338 P.2d 903

52 Cal.2d 142

PEOPLE of the State of California, Respondent, v. Frank CAMODECA, Appellant.

Cr. 6412.

Supreme Court of California, In Bank.

May 12, 1959.

Robert H. Kroninger, Oakland, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., John S. McInerny, Deputy Atty. Gen., J. F. Coakley, Dist. Atty., Alameda, and C. Zook F. Sutton, Deputy Dist. Atty., Oakland, for respondent.

TRAYNOR, Justice.

Defendant held a contract of sale and collected the monthly payments on a bar owned and operated by William L. Murphy. On June 15, 1957, Murphy discussed with defendant the possibility of removing the name of Murphy's 'common-law wife' from the contract of sale and from the bar's beer and wine license. Defendant stated that this could be done but that it would require a 'fix.' He also told Murphy that the Department of Alcoholic Beverage Control had certain charges on file against the bar and that those charges could be fixed and the license cleared if Murphy would give defendant $720 to pass on to certain persons in Sacramento. There were no reported violations in fact, but Murphy believed the misrepresentations and attempted to raise the money. When he was unable to do so he brought the matter to the attention of the district attorney. A meeting between Murphy and defendant was arranged for June 18th, when defendant was to receive the money. By arrangement with Murphy, police officers were hidden near the place of the second meeting, and the conversation was recorded. On learning that Murphy was unable to raise the money, defendant stated that the money had already been paid to the officials in Sacramento by an unnamed man who would be 'unhappy' if Murphy did not make prompt reimbursement. Defendant was then placed under arrest and charged with attempted grand theft.

The trial court, sitting without a jury, found defendant guilty of two counts, attempt to commit grand theft and attempt to commit extortion. The sentences were to run concurrently. Defendant appeals.

'In order to establish an attempt, it must appear that the defendant had a specific intent to commit a crime and did a direct, unequivocal act toward that end. * * *' People v. Gallardo, 41 Cal.2d 57, 66, 257 P.2d 29, 35. 'Preparation alone is not enough, there must be some appreciable fragment of the crime committed, (and) it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter * * *.' People v. Buffum, 40 Cal.2d 709, 718, 256 P.2d 317, 321; see People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308, 98 A.L.R. 913; People v. Van Buskirk, 113 Cal.App.2d 789, 792-793, 249 P.2d 49; People v. Franquelin, 109 Cal.App.2d 777, 783, 241 P.2d 651.

The evidence in the present case is sufficient under the foregoing rules to sustain the conviction of attempted grand theft. Defendant's admissions to the police that he attempted to get the $720 from Murphy by falsely representing that he could get the violations 'fixed' and that the money was to be for his own use, establish a specific intent to obtain money by false pretenses. See Pen.Code, § 484. His conduct in seeking to accomplish that objective went well past the stage of 'mere preparation.' See People v. Buffum, 40 Cal.2d 709, 718, 256 P.2d 317. After his meeting with Murphy and his threats to secure payment of the bribe money, the only further act necessary to consummate the crime of grand theft was actual receipt of the money. This conduct was unequivocal action done toward the commission of the crime (compare People v. Wallace, 78 CalApp.2d 726, 742, 178 P.2d 771; People v. Hickman, 31 Cal.App.2d 4, 7-11, 87 P.2d 80; People v. Arberry, 13 Cal.App. 749, 757-758, 114 P. 411), and is clearly sufficient to sustain the conviction of attempted grand theft.

Defendant contends, however, that his actions did not constitute an attempt to obtain money by false pretenses since his victim was not deceived by and did not rely on the misrepresentations. It is urged that although Murphy may have been deceived at the June 15th meeting, the direct ineffectual act necessary to constitute an attempt did not occur until June 18th, when defendant met Murphy to obtain the money. It is true that at the time Murphy was no longer deceived and that the element of lack of consent, necessary to the substantive crime of grand theft, was missing. Defendant invokes People v. Werner, 16 Cal.2d 216, 105 P.2d 927, for the proposition that to constitute an attempted grand theft the victim must be deceived by and must rely on the false representations of the defendant. In that case, the defendant and his wife represented to a certain McNeil, who was then awaiting trial on grand theft charges, that they could have the charges against him dismissed for a specified sum. McNeil disbelieved their representations and reported the matter to the police, who arranged to trap the defendant when the money was paid to him. McNeil delivered a package supposedly containing the money to the defendant's wife and she and the defendant were then arrested. This court reversed a conviction of attempted grand theft, stating as an alternative ground of decision: 'We are satisfied that there cannot be a theft or an attempted theft of a person's property when voluntarily and without compulsion of any sort and uninfluenced by any false or fraudulent representations, he actively hands it over to the alleged thief for the purpose of apprehending him as a thief or as an attempted thief however reprehensible the latter's intent may be for under such circumstances the essential element of lack of consent is missing.' 16 Cal.2d at page 226, 105 P.2d at page 933. Although there is other authority in this state to the contrary (People v. Wallace, 78 Cal.App.2d 726, 740-742, 178 P.2d 771; People v. Grossman, 28 Cal.App.2d 193, 204, 82 P.2d 76; see also People v. Lavine, 115 Cal.App 289, 300, 1 P.2d 496), the Werner case supports defendant's position that deception of the intended victim and his reliance on the false representations are essential elements of the offense of attempted grand theft by false pretenses.

We are now convinced, however, that the Werner case is unsound in so holding. It failed to recognize the crucial distinction between the completed crime of false pretenses and an attempt to commit such a crime. The overwhelming weight of authority in this country (e. g., People v. Gardner, 144 N.Y. 119, 38 N.E. 1003, 28 L.R.A. 699; State v. Peterson, 109 Wash. 25, 186 P. 264, 8 A.L.R. 652; Williams v. State, 209 Miss. 902, 48 So.2d 598; State v. Phillips, 36 Mont. 112, 92 P. 299; Commonwealth v. Johnson, 312 Pa. 140, 167 A. 344, 89 A.L.R. 333), and in England (e. g., Regina v. Light, 11 Crim.App.R. 111; Regina v. Hensler, 11 Cox.Cr.Cas. 570; Regina v. Roebuck, 7 Cox.Cr.Cas. 126; see 89 A.L.R. 342) holds that in a prosecution for attempted grand theft by false pretenses it is not necessary that the defendant's intended victim be deceived by the falsity of the representations made to him (see also Perkins, Criminal Law 489-494; Wharton, Criminal Law and Procedure 354-355; Williams, Criminal Law 487-490; Miller, Criminal Law 97-101; Sayre, Criminal Attempts, 41 Harv.L.Rev. 821, 850-855; Keedy, Criminal Attempts at Common Law, 102 U.Penn.L.Rev. 464, 486-488).

One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some...