People v. Churchill

• Decision Date: 27 October 1967
• Docket Number: Cr. 12528
• Citation: 63 Cal.Rptr. 312,255 Cal.App.2d 448
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. James CHURCHILL, Defendant and Appellant.

Page 312

63 Cal.Rptr. 312

255 Cal.App.2d 448

The PEOPLE of the State of California, Plaintiff and Respondent, v. James CHURCHILL, Defendant and Appellant.

Cr. 12528.

Court of Appeal, Second District, Division 5, California.

Oct. 27, 1967.

Gilbert F. Nelson, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Harold J. Smotkin, Deputy Atty. Gen., for plaintiff and respondent.

HUFSTEDLER, Associate Justice.

Appellant Churchill was by information charged with the following felonies: count I, violation of section 211 of the Penal Code, armed robbery of Joel Robinson on 22 October 1965; count II, violation of section 496 of the Penal Code, receiving Joel Robinson's credit cards on 28 October 1965; count III, violation of section 211 of the Penal Code, armed robbery of Moe Pollner on 28 October 1965; count IV, violation of section 487(3) of the Penal Code, theft of Esther Campos's automobile on 28 October 1965; count V, violation of section 484a(b)(6) of the Penal Code, using Joel Robinson's credit card without authority and with intent to defraud for the purpose of obtaining property from the Broadway Department Stores, Inc., and others on 22 October 1965; counts VI, VII, and VIII, violations of section 459 of the Penal Code, burglary of different locations of the Broadway Department Stores on 22 October 1965; and count IX, violation of section 459 of the Penal Code, also burglary of a Broadway Department Store on 28 October 1965. Churchill was the sole defendant named in counts II and III but was jointly charged with a codefendant in the remaining seven counts.

At the time of trial Churchill personally and his private counsel stipulated with the prosecuting attorney to submit the cause on the transcript of the preliminary hearing, each side reserving the right to offer additional evidence. No further evidence was offered. A jury trial was waived. The court found Churchill guilty as charged in counts II, III, IV, V and IX, and found the burglary to be of the second degree. Churchill was sentenced to state prison for the term prescribed by law on each count of which he was convicted, the sentences to run concurrently. Churchill appeals from the judgment of conviction.

On appeal Churchill contends: (1) He could not be punished for both theft of the motor vehicle (count IV) and burglary (count IX) because both acts constituted a single criminal transaction within the meaning of section 654 of the Penal Code; (2) he could not be prosecuted and convicted for violating section 496 of the Penal Code, a general statute proscribing receiving stolen property, for the receipt of credit cards (count II) because the facts of the offense parallel the acts proscribed by a specific credit card statute, section 484a of the Penal Code, and therefore Churchill was subject to prosecution and conviction solely for violating the special statute; (3) he could not be prosecuted for nor convicted of violating section 459 of the Penal Code, burglary, because entry for the purpose of theft by unauthorized use of a credit card is likewise comprehended by a special statute, section 484a of the Penal Code.

Summary of the Evidence

On October 22, 1965, Joel Robinson was stopped in downtown Los Angeles by Churchill's codefendant and another man, whom Mr. Robinson did not clearly observe. The codefendant stopped Mr. Robinson, exhibited a gun and ordered him into an alley, stating: 'Lookie here, lookie here, get in here before I kill you.' The codefendant took approximately $80 in cash, assorted credit and identification cards, and glasses from Mr. Robinson, then struck him in the head. On the same date Churchill and his codefendant entered a Broadway Department Store in Hollywood. Churchill, using Robinson's stolen credit card, charged a number of items of merchandise, in each instance signing the charge slip with the name 'Joel Robinson.'

On the evening of October 27, 1965, Mrs. Esther Campos's station wagon was stolen. Mrs. Campos testified that she had left a dealer's suspension receipt in her automobile on the night it had been taken.

On October 28, 1965, Mr. Moe Pollner was approached by Churchill, who said to Pollner, 'Let me have your wallet.' Mr. Pollner saw that Churchill had a gun, and he gave Churchill his wallet, which contained about $51 and some credit and identification cards.

Also on October 28 Churchill and his codefendant entered a Broadway Department Store in the Crenshaw District. Churchill selected several shirts and presented Joel Robinson's credit card to the saleswoman. The operations manager of the Broadway, who knew that Robinson's charge card had been stolen, found out that Churchill was in the store from a telephone verification of the charge card. Before Churchill could sign the charge slip, he and his codefendant were arrested.

Churchill was searched at the time of his arrest and the stolen credit and identification cards of both Robinson and Pollner were found in his possession, as well as the dealer's suspension receipt that had been taken from Mrs. Campos's stolen automobile. A Broadway security officer located the Campos automobile after he had been advised by a fellow security officer that Churchill and his codefendant matched the descriptions of the persons who had been illegally using a charge plate in the Hollywood store. The security officer searched the car and found a loaded Colt .45 gun hidden beneath the front seat. Fingerprints taken from the rear-view mirror inside the Campos automobile matched the fingerprints of Churchill's codefendant.

No Double Punishment

Churchill's argument that his conviction for burglary should be merged with a conviction for grand theft of the Campos automobile pursuant to section 654 of the Penal Code is without merit. Regardless of whether the theft of the automobile was a part of a single course of conduct intended to culminate in a burglary, section 654 does not prevent punishment of both the burglary and the auto theft because the offenses were committed against different victims, Mrs. Campos and the Broadway respectively. (In re Ford (1967) 66 Cal.2d --- ^*, 57 Cal.Rptr. 129, 424 P.2d 681.) Churchill was properly sentenced on each of those two counts.

Count II Stated No Public Offense

Churchill could not be charged with or convicted of violating section 496 of the Penal Code for receiving stolen credit cards. '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.)' PEOPLE V. ALI (1967) 66 CAL.2D --- , ---,^** 57 Cal.Rptr. 348, 350, 424 P.2d 932, 934.

Count II of the information does not state a public offense. If we strike out as surplusage the reference to section 496 of the Penal Code, a public offense is stated only if the averments remaining in the pleading are sufficient to charge a violation of section 484a, despite the fact that section 484a is not named. (People v. Reddick (1959) 176 Cal.App.2d 806, 820, 1 Cal.Rptr. 767.) The subsections of section 484a which could be conceivably applicable are subsections 1, 2 and 3, each of which requires a specific intent which is not alleged in the information. ¹

The People argue that we can disregard the word 'credit' in the information charging receipt of stolen credit cards and as thus read a public offense is stated. In charging an offense the People could have averred the property taken in general terms or they could have omitted the description of the property. (Pen. Code, § 952.) The People did neither. We cannot treat the reference to credit cards as an immaterial misdescription of the property. The difficulty with the information is not that the description of the property was not specific or was mistaken, but rather that the property specifically designated could not be the subject of...