People v. Gingles

• Decision Date: 19 June 1973
• Docket Number: Cr. 10560
• Citation: 32 Cal.App.3d 1030,108 Cal.Rptr. 744
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Wayne Everett GINGLES, Defendant and Appellant.

Page 744

108 Cal.Rptr. 744

32 Cal.App.3d 1030

PEOPLE of the State of California, Plaintiff and Respondent, v. Wayne Everett GINGLES, Defendant and Appellant.

Cr. 10560.

Court of Appeal, First District, Division 1, California.

June 19, 1973.

Richard John Frick, San Francisco, for defendant-appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Joyce F. Nedde, Herbert F. Wilkinson, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

SIMS, Associate Justice.

Defendant has appealed from an order admitting him to probation ¹ following his conviction of credit card forgery in violation of subdivision (2) of section 484f of the Penal Code. ² Defendant was charged with this offense ³ and two prior felony convictions. Following a plea of guilty and denial of the priors, his motion to dismiss the information for lack of probable cause under section 995 of the Penal Code was denied September 30, 1971. Thereafter a writ of prohibition was denied by the Court of Appeal on November 10, 1971, ⁴ and court records indicate that the defendant's petition for a hearing in the Supreme Court was denied December 9, 1971. On December 13, 1971, he withdrew his plea of not guilty and pleaded guilty to the offense charged in the information. The two prior convictions were stricken by the court. At the same time the public defender filed on behalf of the defendant a 'Statement In Support Of Request For Certificate Of Probable Cause' supported by points and authorities raising the contentions advanced on this appeal. Following the entering of the order admitting him to probation on January 5, 1972, the defendant filed a notice of appeal and a request for a certificate of probable cause as required by section 1237.5 of the Penal Code. This certificate was issued February 2, 1972.

Defendant contends that the facts brought out at the preliminary hearing demonstrate that the offense he committed was the misdemeanor offense proscribed by section 484g ⁵ of the Penal Code, and that it was improper to charge him with and convict him of the felony forgery charge. This claim is predicated upon the principle that where an offense falls within the provisions of a general statute and also within the provisions of a special statute, the latter statute should be applied. It is concluded that the rpovisions enacted at the time of the revision of sections dealing with credit card offenses demonstrate an intent that a violator may be prosecuted under any statute he violates, and that in any event the facts giving rise to the offense charged fell specifically within the provisions of subdivision (2) of section 484f. The order must be affirmed.

The facts of this case are not in dispute and were elicited at the preliminary hearing.

Mrs. Verna Herring testified that on the evening of July 11, 1971, she was at a dance and bar in Napa. The next day she discovered that someone had taken her wallet out of her pocket at the dance. The wallet was recovered in front of a radio station later that morning, but some money and credit cards made out to John T. Herring, including two Penney's, one Sears, one Montgomery Ward, and one Union Oil, were missing. No one had been given permission to use these cards.

On July 12 defendant presented the Sears credit card to a sales clerk at Sears Roebuck in Sun Valley. He purchased underwear, socks, and a shirt with the total purchase amounting to less than $40. The clerk made out a sales slip for the items using the credit card, and defendant signed the sales slip as Mr. John Herring.

After defendant left with the purchases, the security manager discovered that the credit card was stolen. He followed defendant to another location in the store, where defendant attempted to make another purchase, and asked to see the credit card. The clerk handed it to him and he saw Mr. Herring's signature on the back. The security officer asked defendant for some identification, and defendant showed him a wallet full of credit cards with John Herring's name on them. The manager then discovered that defendant's name was Gingles and not Herring.

I

Section 470 of the Penal Code provides, in pertinent part, 'Every person who, with intent to defraud, signs the name of another person . . . knowing that he has no authority so to do . . . is guilty of forgery.' The section also evidences the Legislature's intent to punish anyone who 'falsely makes, alters, forges, or counterfeits' any one of some fourscore types of written instruments; or who 'counterfeits or forges the seal or handwriting of another,' or who 'utters, publishes, passes, or attempts to pass, as true and genuine,' any of the instruments referred to, 'knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage or defraud any person,' or who 'with intent to defraud, alters, corrupts, or falsifies' certain designated records.

Although the section does not mention credit cards it was held applicable to credit card forgery in People v. Searcy (1962) 199 Cal.App.2d 740, 743--745, 18 Cal.Rptr. 779. (See also People v. Liberto (1969) 274 Cal.App.2d 460, 463, 79 Cal.Rptr. 306.) In the Searcy case the court indicated that in the absence of a rule to the contrary there was no reason that the defendant could not be charged and convicted of more than one crime even though they arose out of the same course of conduct. (Id., 199 Cal.App.2d at p. 744, 18 Cal.Rptr. 779.) (Section 654 would preclude punishment for any but the most serious offense.) The court in that case noted that the adoption of section 484a of the Penal Code (Stats.1961, ch. 813, § 1, p. 2090) ⁶ did not indicate that the section 470 did not embrace the acts charged. (Id. at p. 744, 18 Cal.Rptr. 779.) In fact section 470 not only refers to signing the name of another, but also refers to falsely making or forging 'any . . . contract . . . due bill for the payment of money . . . (or) receipt for . . . property, . . .'

Nevertheless, after the adoption of section 484a, it was held in People v. Swann (1963) 213 Cal.App.2d 447, 28 Cal.Rptr. 830, that offenses occurring after the adoption of that section should be prosecuted and punished under section 484a and not under section 470. The court stated, 'It seems clear that the Legislature by enactment of section 484a evidenced an intent to state the penal law with respect to misuse of credit cards and to provide appropriate penalties for varying degrees of such offenses. Formerly, criminal laws governing credit card offenses came under various sections of the Penal Code, e.g., section 484 (theft), section 470 (forgery) and section 485 (lost property). (Citations.)' (213 Cal.App.2d at p. 451, 28 Cal.Rptr. at p. 832.) It expressly noted 'The People's argument that the signing of the credit invoices should be separated from the 'use' of the credit card making such signing separately chargeable as forgery is without merit. Certainly the Legislature in enacting section 484a, Penal Code, contemplated false or unauthorized signatures on credit invoices by parties engaged in the misdemeanor use of credit cards under subsection (6) of subdivision (b) of the statute since such signatures are required of credit card users in the customary use of such cards.' (Id., at p. 451, 28 Cal.Rptr. at p. 832.)

This analysis was an application of the general principle expressed in section 1859 of the Code of Civil Procedure as follows: 'In the construction of a statute the intention of the Legislature . . . is to be pursued, if possible; and when a general and (a) 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.' (See also People v. Gilbert (1969) 1 Cal.3d 475, 479--480, 82 Cal.Rptr. 724, 462 P.2d 580; In re Williams (1969) 1 Cal.3d 168, 172--173, 81 Cal.Rptr. 784, 460 P.2d 984; In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593; Williams v. Superior Court (1973) 30 Cal.App.3d 8, 15, 106 Cal.Rptr. 89; People v. Superior Court (1971) 14 Cal.App.3d 935, 945--949, 92 Cal.Rptr. 545; In re Greenfield (1970) 11 Cal.App.3d 536, 542--543, 89 Cal.Rptr. 847; People v. Scott (1968) 259 Cal.App.2d 589, 591-- 593, 66 Cal.Rptr. 432; People v. Churchill (1967) 255 Cal.App.2d 448, 452, 63 Cal.Rptr. 312 (disapproved on another issue People v. Bauer (1969) 1 Cal.3d 368, 378, 82 Cal.Rptr. 357, 461 P.2d 637), and cf. Id., 255 Cal.App.2d at pp. 453--454, 63 Cal.Rptr. 312; People v. Wood (1958) 161 Cal.App.2d 24, 29--30, 325 P.2d 1014; and People v. Silk (1955) 138 Cal.App.2d Supp. 899, 900--902, 291 P.2d 1013.)

In People v. Ali (1967) 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932 the court approved People v. Swann, supra, and citing it stated, '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. (Citations.)' (66 Cal.2d at p. 279, 57 Cal.Rptr. at p. 350, 424 P.2d at p. 934.)

In 1967 the Legislature repealed section 484a (Stats.1967, ch. 1395, § 1, p. 3258) and enacted new, comprehensive provisions dealing with credit card matters as sections 484d through 484i of the Penal Code. (Id., §§ 2--7, pp. 3258--3260.) The new statute included a section which reads: 'This act shall not be construed to preclude the applicability of any other provision of the criminal law of this state which presently applies or may in the future apply to any transaction which violates this act.' (Id., § 8, p. 3260. See In re Williams, supra, 1 Cal.3d 168, 173, fn. 2, 81 Cal.Rptr. 784, 460 P.2d 984.)

The report of the 1967 Assembly Committee on Criminal Procedure states at page 16: 'Section 9 (Sic, ultimately 8) of the bill provides that any transaction...