People v. Conway, Cr. 22928

• Decision Date: 31 October 1974
• Docket Number: Cr. 22928
• Citation: 117 Cal.Rptr. 251,42 Cal.App.3d 875
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Keith CONWAY and Leo Mercado, Defendants and Appellants.

Page 251

117 Cal.Rptr. 251

42 Cal.App.3d 875

The PEOPLE, Plaintiff and Respondent, v. Keith CONWAY and Leo Mercado, Defendants and Appellants.

Cr. 22928.

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

Oct. 31, 1974.

Gladys Towles Root, Los Angeles, for defendant and appellant Keith conway.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., and Donald J. Oeser and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

STEPHENS, Associate Justice.

By indictment, defendant Keith Conway (appellant) ¹ and codefendants Lloyd Conway, Leo Mercado, and Carlos Reynaldo were charged in Count I with violation of Penal Code section 487 ² (grand theft). In Count II, appellant Keith Conway and codefendant Lloyd Conway were charged with grand theft, in violation of Penal Code section 487. In Counts III through V, appellant and codefendants Lloyd Conway and Leo Mercado were also charged with violation of section 487. Appellant pleaded not guilty to all counts. His motion to set aside the indictment pursuant to Penal Code section 995 was denied. He waived trial by jury, and his motion pursuant to Penal Code section 1538.5 was also denied. The prosecution stipulated that Business and Professions Code section 17500 (false advertising) could be considered as a lesser included offense. ³ It was also stipulated that the case be submitted on the transcript of the grand jury proceedings. ⁴ Appellant was found guilty on all five counts of uttering false or misleading statements in violation of Business and Professions Code section 17500. He was sentenced to three years summary probation, which would terminate upon the payment of a total fine of $2,000. Appellant appeals from the judgment.

Facts

This case involves the sale of automobiles by allegedly false representations made to members of the general public by Pasadena Motors, ⁵ an automobile dealership located in Pasadena, California. Appellant was the president of the dealership; defendant Lloyd Conway was the general manager; defendant Mercado was the sales manager; and defendant Reynaldo was a used car salesman. ⁶

The five counts of grand theft alleged in the indictment are based upon testimony concerning five separate sales transactions, all of which had the common element of a customer receiving something of lesser value than bargained for after having relied on representations made by either appellant, Lloyd Conway, Mercado or salesmen. Their actions can be categorized as follows: used cars were sold as new cars; merchandise was switched between bargain and delivery; agreed upon sales price was inflated in favor of the seller when it was finalized in the written contract; and buyers who received automobiles in need of repairs were denied these repairs by Pasadena Motors' failure to honor warranties or to keep promises made at the time of sale.

Count I:

On September 1, 1969, Jose S. Alcalde went to Pasadena Motors, where he met codefendant Reynaldo. Alcalde told Reynaldo in Spanish that he was looking for a transportation vehicle. Reynaldo indicated that he had a 1965 Chevrolet which was in good condition and had a one year guarantee. Alcalde agreed to purchase the car, and was introduced to the sales manager, codefendant Mercado. Mercado reaffirmed the fact that the car was covered by a one year warranty. Alcalde signed the contract, which he understood included insurance, and put down a check for $490 as the down payment. The following day, Alcalde was involved in an accident with the Chevrolet because the brakes went out. He returned to Pasadena Motors and spoke to Mercado, who told him, 'You don't have to worry. I'm going to fix that car.' However, he informed Alcalde that Alcalde would have to pay for the damage. Alcalde then went to Mr. Kusada's office. Kusada, who took care of the credit and insurance end of the transaction, told Alcalde that he would have to sign up for more insurance or he would lose the car and his job. Kusada also told Alcalde to write down all the things that needed to be repaired on the Chevrolet. Alcalde wrote down that the brakes, radio and the emission of heavy smoke needed to be fixed. Mercado promised that he was going to repair the car.

Fifteen days later, Alcalde returned to pick up his car. After driving a few blocks, he noticed that the same heavy smoke was being emitted from his exhaust. As a result, he returned to Pasadena Motors and complained to Mercado, who told him that he had done everything he promised to do and that he was not going to do anything else. Alcalde asked for his money back, but Mercado refused.

After talking to his attorney, Alcalde returned and told Mercado that he wanted to buy a new car. He had seen Pasadena Motors' newspaper advertisements of a Maverick at only $2,200. Alcalde told Mercado that he wanted a new Maverick at that price, but he was informed that he would have to pay more money because he did not have any credit. Reynaldo took Alcalde to the lot, and Alcalde picked out a new Maverick. He was told by Reynaldo that the car had a five-year or 50,000 mile warranty. Mercado told Alcalde that because of his credit the price of the car would be $2,400. After signing the contract, Alcalde went out to pick up his car. However, he noticed that there were numerous dents in the automobile, that the hood was not matching, and that the car had 900 miles on it. Mercado explained that the car was a new car but that sometimes cars on the lot are hit when other cars are moved.

Sometime after the purchase of the Maverick, Alcalde was contacted by Pasadena Motors and told that he would have to arrange his own financing or they were going to repossess the car. Alcalde went to Bank of America, but they refused to finance the car because it was not a new car and it was more expensive than a new car.

On October 14, Alcalde contacted Ms. Elizabeth Steidel of the Consumer Complaint Center, and he lodged a complaint concerning the purchase of his motor vehicle from Pasadena Motors. Ms. Steidel, accompanying Alcalde, went to Pasadena Motors and talked to the appellant, Keith Conway; she informed appellant that Alcalde had paid more for a used car than a new one and that Alcalde did not know that it was used when he purchased it. Appellant stated that their service company would take care of the car, that they would repair the damages, and that he would give Alcalde a check for $75 to compensate him for what Alcalde believed he overpaid for the vehicle. Alcalde agreed to this arrangement. However, when he took his car to the body shop to be repaired, they refused to fix the car. They told him the car was covered only by a one year or 10,000 mile warranty. The car sold to Alcalde was in fact a used car.

Count II:

On April 11, 1970, Ms. Phyllis K. Wilson and her husband, Willis, went to Pasadena Motors to shop for a car. They talked to a salesman, Mr. Carrier, and told him they were interested in a Mustang. They decided to purchase a 1967 Mustang for $1,895. As part of the purchase price, they wanted to trade in their 1962 pickup for $800. Mr. Marinelli, one of the sales managers, agreed to these amounts, asked Ms. Wilson if she had the pink slip to the truck, and when she indicated that she did, he asked to see it. The manager insisted that 'if you want to make this deal, you better sign (the pink slip).' Ms. Wilson replied that she had to ask her husband, who was test driving the Mustang. The manager responded that 'if you don't sign it now, we're not going to make a deal.' She signed the pink slip because she knew her husband wanted to purchase the Mustang. She was then led into the office of Mr. Kusada, who turned on a tape recorder while he was writing the contract. He told her that she was getting $600 for the trade in. When Ms. Wilson responded that they were supposed to get $800, he proceeded to turn off the tape machine. Every time Ms. Wilson or her husband (who had rejoined them) objected to anything that was not in conformity with what the sales manager had said, the tape recorder would be turned off. The Wilsons were told that they would have to take the $600 because 'A deal is a deal. You signed the pink slip. You don't no longer own the '62 pickup.' Feeling that they were stuck, they signed the contract. They were also told that if they did not procure a cosigner within three days they would forfeit the trade-in and the car they were buying.

Mr. Carrier had told Ms. Wilson that the car was in good mechanical condition. However, Ms. Wilson felt that the car was a 'death trap' since the brakes were not working, the tires were bald, and considerable mechanical work needed to be done. Also, she had been told that there was a five-day trial exchange period and, 'If you don't like it, come in and bring it back, and you can get another car.' When she attempted to get another car within the five-day period, she was told that there was no five-day trial exchange on the car. Codefendant Lloyd Conway told her, 'That's tough. A deal is a deal. You bought that car, you drive it.'

After Ms. Wilson complained to Ford Motor Credit and the DMV, appellant Keith Conway contacted Ms. Wilson. She told him that she was going to let the car be repossessed. He told her that 'You don't want to do that . . .. What can I do to keep you from complaining to them (the DMV)?' Appellant also told Ms. Wilson that he did not know anything about the transaction and that a salesman had done it all. Appellant offered Ms. Wilson '$50 better than any deal that you can get any place else.' Ms. Wilson agreed to purchase a pickup truck. He told her that the payments would be around $60 a month. She agreed. Sometime later, appellant called Ms. Wilson and told her that the truck was ready. Ms. Wilson responded, 'Before we come down again, is it the one you quoted, are the payments $60?' Appellant replied, 'Yes, I got the contract all written out. . . . ...