People v. Robertson

• Decision Date: 04 February 1959
• Docket Number: Cr. 6064
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Randall Hunt ROBERTSON, Defendant and Appellant.

Page 938

334 P.2d 938

167 Cal.App.2d 571

The PEOPLE of the State of California, Plaintiff and Respondent, v. Randall Hunt ROBERTSON, Defendant and Appellant.

Cr. 6064.

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

Feb. 4, 1959.

Randall Hunt Robertson, appellant, in pro. per.

Stanley Mosk, Atty. Gen., Norman H. Sokolow, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendant appeals from a judgment, after trial by jury, whereby he was convicted of three counts of grand theft (Sec. 487(1), Penal Code) and one count of petit theft, being a lesser and included offense than that charged in the fourth count of the information. The trial court denied motion for new trial and his application for probation, and sentenced defendant to the state's prison for the term prescribed by law and to the county jail for six months, the terms to run concurrently.

The prosecution arose out of defendant's activities in securing fraudulent charge accounts at various business establishments. Count I involved the theft from Butler Brothers of household appliances and other merchandise valued in excess of $600; Count II charged the unlawful taking from May Company's Wilshire store of jewelry and other articles over the value of $200; Count III pertained to the theft of merchandise worth more than $1,000 from J. W. Robinson Co., and Count IV involved a similar unlawful transaction with I. Magnin and Company respecting articles valued in excess of $200.

Appellant contends that the evidence was insufficient to convict him on Counts I, II and III; the district attorney and trial judge were guilty of prejudicial misconduct; errors occurred in the admission of certain evidence and errors were committed in the giving and refusing of certain instructions.

Preliminarily, appellant's notice of appeal was tardily filed, being in the form of a telegram dispatched by appellant and received by the clerk on the third day following the expiration of the ten-day statutory period. The attorney general having raised the point in respondent's brief, appellant in his closing brief has set forth certain matters explanatory of the late filing, and we have entertained a countershowing by the respondent which tends to negative appellant's claims. Although appellant's showing falls short of the 'clear and positive testimony' found in People v. Slobodion, 30 Cal.2d 362, 181 P.2d 868, 870, we are disposed to consider the appeal on its merits.

Appellant challenges the sufficiency of the evidence to support his conviction on Counts I, II and III. The first of such counts, as heretofore noted, involved his transactions with Butler Brothers where, it appears, in December of 1956, he applied in writing for credit, and represented on the application form that he had a bank account with the Palm Springs office of Bank of America and was listed with Dunn and Bradstreet. Appellant told the credit interviewer he owned Spectrum Electronics at a given address and had been in that business for one year. A thirty-day charge account was opened, and appellant charged merchandise totalling more than $100 over a three-month period. On January 7, 1957, a washer and dryer, valued at $520.30 were delivered to the appellant at his residence address upon his representations in the credit application. This purchase was not, however, charged to appellant's account, but delivered with a conditional sales contract. Appellant did not sign the contract and the machines were subsequently repossessed by the seller upon receipt of information that the appellant was in custody. No loss was sustained by the store, although appellant paid no part of the merchandise charged under the thirty-day account.

It was established that appellant never had an account in any form during November and December of 1956 with the bank at Palm Springs, and his only connection with Spectrum Electronics consisted of a short period of employment, by the real owners, to obtain television sets for demonstration and to secure a Dunn & Bradstreet rating for the firm. A pending agreement by which appellant would become a partner never materialized. Prior to December 20, 1956, there was no record of any Dunn & Bradstreet report on appellant, individually.

Appellant took the stand in his defense and under cross- examination made the following admissions: That he had misrepresented certain facts in the Butler Brothers' credit application and credit applications at other stores; that his income for the entire year of 1956 was between three and four thousand dollars and that he had charged over three thousand dollars' worth of merchandise in the months of December, 1956, and January, 1957; that before such charges he had contracted other debts which were unpaid; that there were civil judgments outstanding against him; that earlier in 1956 he had charged a $5,000 bracelet for which he did not pay, but pawned for $950.

The foregoing facts, pursuant to the recognized rule on appeal, have been summarized in a light most favorable to respondent. Thereunder, we are required to assume in favor of the verdict every fact which the jury could reasonably have deduced from the evidence and to refrain from drawing contrary inferences (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778). Neither the law of this state nor these facts support appellant's claims concerning the insufficiency of the evidence to support his conviction.

It is now well established that the offense of grand theft includes the crimes of larceny by trick and device and obtaining money by false pretenses (People v. Ashley, 42 Cal.2d 246, 258, 267 P.2d 271), and a judgment of conviction of grand theft based on a general verdict of guilty, as here, can be sustained if the evidence discloses the elements of one of the two consolidated offenses (People v. Massey, 151 Cal.App.2d 623, 658, 312 P.2d 365); 'Larceny by trick and device is the appropriation of property, the possession of which was fraudulently acquired' (People v. Ashley, supra, 42 Cal.2d 258, 267 P.2d 279); stated otherwise, '(i)f a person, with a preconceived design to appropriate the property to his own use, obtains possession of it by means of fraud or trickery, the taking is larceny' (People v. Mills B. Sing 42 Cal.App. 385, 391, 183 P. 865, 867), or 'if the victim intends title to pass at some time later than the delivery, or upon the fulfillment of some condition not then performed, there may be a larceny.' People v. Beilfuss, 59 Cal.App.2d 83, 89-90, 138 P.2d 332, 336. Here the household appliances were delivered to appellant's residence upon the strength of credit fraudulently obtained from the vendor by virtue of a palpably preconceived design to misrepresent his financial standing, his personal holdings and his occupation status. Also, though obliged to do so, appellant neither signed nor returned the contract which was delivered with the merchandise in question. The inference of larcenous intent was clearly deducible from the foregoing, as was the further inference that the vendor would not have parted with possession except for its reliance upon the fulfillment of a proper credit standing which, in appellant's case, was manifestly unobtainable in the light of his several admissions hereinbefore recounted. He cites to us the case of People v. Potter, 90 Cal.App. 94, 265 P. 365, where merchandise was obtained as the result of a representation that defendant had a deposit of $6,000 in a certain bank. This involved a different situation from that in the case at bar where the evidence established that appellant had no account of any kind with the bank of which he claimed to be a depositor. Nor is there any merit to appellant's implied suggestion that Butler Brothers did not sustain a loss in excess of $200 since the machines were repossessed. In cases of this kind financial loss is not a necessary element of the crime (People v. Talbott, 65 Cal.App.2d 654, 659, 151 P.2d 317).

As to Count II, the record reveals that on December 12, 1956, appellant sought credit from May Company's Wilshire store and filled out an application card. He falsely told the interviewer that he was a doctor of osteopathy with offices on Santa Monica Boulevard. The Credit...