People v. Randono, Cr. 5604

• Decision Date: 08 May 1973
• Docket Number: Cr. 5604
• Citation: 108 Cal.Rptr. 326,32 Cal.App.3d 164
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Gene RANDONO, Defendant and Appellant.

Page 326

108 Cal.Rptr. 326

32 Cal.App.3d 164

PEOPLE of the State of California, Plaintiff and Respondent, v. Gene RANDONO, Defendant and Appellant.

Cr. 5604.

Court of Appeal, Fourth District, Division 2, California.

May 8, 1973.

Hearing Denied July 6, 1973.

[32 Cal.App.3d 170] Leonard H. McBride, Santa Ana, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Daniel J. Kremer and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

KERRIGAN, Associate Justice.

Defendant and Charles Dreyer were indicted on eleven (11) counts of grant theft (Pen.Code, §§ 484, 487) and one (1) count of attempted grand theft. Defendant's motion to dismiss the indictment (Pen.Code, § 995) was granted as to the attempt charge, and denied as to the others. He waived jury, was tried by the court, and convicted of ten counts of grand theft. The court suspended imposition of sentence and granted probation for three years, on condition that defendant make full restitution and serve 90 days in the county jail. The jail term was stayed pending this appeal from the judgment (probation order).

THE FACTS

Dreyer, testifying under a grant of immunity, was the prosecution's principal witness.

During 1968 and 1969 defendant and Dreyer were partners, operating a bar or restaurant in Newport Beach called Feliciano's. In April 1969, they purchased the Saddleback Inn, a motel, restaurant and bar in Laguna Beach. The Saddleback was then subject to various debts, including a first trust deed held by Laguna Federal Savings and Loan Association. Payments on the note secured by the trust deed, amounting to nearly $4,000 per month, were about fifteen months delinquent.

During the first two weeks of July 1969, defendant and Dreyer discussed the Saddleback's precarious financial condition. The trust deed installments were still delinquent, Laguna Federal was pressing for payment, and other debts were due. Since bankruptcy or receivership seemed inevitable, they felt they might as well take advantage of the situation. They agreed to order some $20,000 worth of liquor for the Saddleback, then transfer it to Feliciano's without ever paying for it. There would never be any payment because there was no money left in the Saddleback Corporation.

Defendant ordered the liquor by telephone from the office at Feliciano's during the period July 15--25. The liquor, of a total value of $20,968.32, was delivered to the Saddleback Inn by eight distributors on July 22, 23, 24 and 30, 1969. ¹

The liquor was taken by car from the Saddleback to Feliciano's, where most of it was stored in an upstairs hallway and men's room. At defendant's direction, Alexander Torbitt, manager of Feliciano's built a wall across the hallway to hide the liquor.

On Thursday, July 31, Laguna Federal obtained an Ex parte order appointing a receiver for the Inn. During the following weekend, defendant, with the help of his son and a U-Haul trailer, removed a large quantity of furniture from the Saddleback to his apartment. At midnight on Monday, August 4, Dreyer met the receiver at the Saddleback and turned over the keys and the books.

On September 12, 1969, Edward Banks, an investigator with the district attorney's office, went to Feliciano's with other officers to execute a search warrant. They kicked down the wall built by Torbitt and seized the liquor. ²

CONTENTIONS ON APPEAL

Defendant's main attack is directed to the sufficiency of the evidence to sustain the judgment of conviction. In particular, he contends that no false pretense was shown, and that Dreyer's testimony was not sufficiently corroborated. He also contends that application of the theft statute to his act as shown by the evidence constitutes a denial of due process of law and that if the evidence shows any crime, it is concealment of assets to defraud creditors (Pen.Code, § 154), not grand theft.

SUFFICIENCY OF THE EVIDENCE

An appellate court must assume in favor of the judgment the existence of every fact reasonably deducible from the evidence. Before the judgment may be set aside, it must appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court. It is the trier of fact, and not the appellate court, which must be persuaded of the defendant's guilt beyond a reasonable doubt. (People v. Newland (1940) 15 Cal.2d 678, 681, 104 P.2d 778; People v. Caruso (1959) 176 Cal.App.2d 272, 276, 1 Cal.Rptr. 428.)

The trial court specifically found that the defendant was guilty of theft by false pretenses. To support a false pretenses conviction, it must be shown that the defendant made a false pretense or representation with intent to defraud the owner of his property, and that the owner was in fact defrauded, in that he relied on the false representation in parting with his property. (People v. Ashley (1954) 42 Cal.2d 246, 259, 267 P.2d 271, cert. den., 348 U.S. 900, 75 S.Ct. 222, 99 L.Ed. 707; People v. Brady (1969) 275 Cal.App.2d 984, 996, 80 Cal.Rptr. 418.)

The Attorney General contends that the evidence also supports conviction of larceny by trick or device. We disagree. Larceny by trick or device is the appropriation of property, the possession of which was fraudulently acquired; obtaining property by false pretenses is the fraudulent or deceitful acquisition of both title and possession. (People v. Ashley, Supra, 42 Cal.2d 246, 258, 267 P.2d 271.) Where one is induced to sell property through another's false representations, if the seller intends to pass only possession at the time of sale, the buyer commits the offense of larceny by trick or device, but if the seller intends to pass title, the buyer commits the offense of obtaining property by false pretenses. (People v. Nor Woods (1951) 37 Cal.2d 584, 586, 233 P.2d 897.)

When there is nothing to establish a contrary intent, title to goods passes from seller to buyer on delivery, without regard to when payment is due. (Cal.U.Com.Code, § 2401, subd. (2); Taylor v. Industrial Acc. Com. (1963) 216 Cal.App.2d 466, 474, 30 Cal.Rptr. 877.) It is a misdemeanor for a liquor wholesaler to retain title to alcoholic beverages delivered to a retailer. (Bus. & Prof.Code, §§ 25503(a), 25617.) In the absence of evidence to the contrary, we must presume that defendant's suppliers intended to obey the law (Civ.Code, § 3548) that is, to convey title to defendant or the Saddleback on delivery of the liquor. Consequently, the offense, if any, must have been theft by false pretenses.

If, as here, the conviction rests primarily on the testimony of a single witness (Dreyer) that the false pretense was made, the making of the pretense must be corroborated. (Pen.Code, § 1110; People v. Ashley, Supra, 42 Cal.2d 246, 259, 267 P.2d 271.) The corroboration required by section 1110 is of the making of the pretense. (People v. Beilfuss (1943) 59 Cal.App.2d 83, 91--92, 138 P.2d 332, app. dism., 321 U.S. 746, 64 S.Ct. 529, 88 L.Ed. 1048.) The circumstances connected with the transaction, the entire conduct of the defendant, and his declarations to other persons may be looked to for the corroborative evidence contemplated by the law. (People v. Martin (1894) 102 Cal. 558, 565, 36 P. 952; People v. Frankfort (1952) 114 Cal.App.2d 680, 701, 251 P.2d 401.)

Since Dreyer was defendant's accomplice in the crime, his testimony is also subject to the corroboration requirement of section 1111 of the Penal Code. The prosecution must produce independent evidence which, without aid or assistance from the testimony of the accomplice, tends to connect the defendant with the crime charged. (People v. Perry (1972) 7 Cal.3d 756, 769, 103 Cal.Rptr. 161, 499 P.2d 129.) The corroborating evidence must do more than raise a conjecture or suspicion of guilt, but it need not be direct, nor extend to every detail of the accomplice's testimony or to every element of the crime. It may be circumstantial, and is sufficient, even though slight and entitled to little weight when standing alone, if it tends in some degree to implicate the defendant in such a way as reasonably may satisfy the trier of fact that the accomplice is telling the truth. (Ibid.; People v. Henderson (1949) 34 Cal.2d 340, 343, 209 P.2d 785; People v. Trujillo (1948) 32 Cal.2d 105, 110--111, 194 P.2d 681, cert. den. sub nom. Woodmansee v. California, 335 U.S. 887 (69 S.Ct. 236, 93 L.Ed.2d 426).)

When viewed in the light of these principles, the evidence was more than sufficient to support defendant's conviction on all ten counts of theft by false pretenses.

There is no dispute as to the element of actual fraud: It was stipulated that the distributors delivered the liquor to the Saddleback Inn. (see fn. 1, Supra.) There was no evidence that the dealers were eventually paid or reimbursed, but their ultimate financial gain or loss is immaterial, as the victim's loss is not an element of the crime. (People v. Brady, Supra, 275 Cal.App.2d 984, 995, 80 Cal.Rptr. 418.)

Nor is there any question about the reliance element. Reliance may be inferred from all the circumstances. (Perry v. Superior Court (1962) 57 Cal.2d 276, 285--286, 19 Cal.Rptr. 1, 368 P.2d 529.) The only reasonable inference to be drawn from delivery of 334 cases of liquor under invoices marked with prices and terms of payment is that the dealers expected to be paid, and relied on that expectation in making the deliveries.

The false pretense may consist in any act, word, symbol, or token calculated and intended to deceive. It may be either express or implied from words or conduct. (People v. Brady, Supra, 275 Cal.App.2d 984, 996, 80 Cal.Rptr. 418; People v. Mace (1925) 71 Cal.App. 10, 21, 234 P. 841.) The trial court adopted the prosecution's theory, that the false representations consisted of defendant's implied promises to pay for the ordered liquor, with the intention not to perform. Such a promise...