People v. Ross

• Decision Date: 26 April 1972
• Docket Number: Cr. 20902
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. Sanford Allan ROSS, Defendant and Respondent.

Page 703

100 Cal.Rptr. 703

25 Cal.App.3d 190

The PEOPLE, Plaintiff and Appellant, v. Sanford Allan ROSS, Defendant and Respondent.

Cr. 20902.

Court of Appeal, Second District, Division 3, California.

April 26, 1972.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., Joseph P. Busch, Dist. Atty., Harry Wood, Head, Appellate Div., and Robert J. Lord, Deputy Dist. Atty., for appellant.

Minsky, Garber & Rudof and Bernard W. Minsky, Los Angeles, for respondent.

THE COURT:

In each of five counts of an information the defendant Sanford Allan Ross was accused of the crime of grand theft. (Pen.Code, § 487, subd. 1.) His motion under section 995 of the Penal Code was granted and the information was set aside. The People have appealed from the order setting aside the information. (Pen.Code, § 1238(a)(1).)

Between February 8 and April 1, 1971, the defendant, who was a licensed automobile dealer, bought thirteen used vehicles from Automotive Rental Sales, Inc. In a total of five sales, the defendant sold those vehicles in March and April of the same year to Glen Organ Ford and Valley Dodge. At that time, the mileage represented on the odometers was less than the mileage so shown at the time the defendant bought the vehicles by a variance of 14,000 miles on three of the vehicles to over 30,000 on some of the other vehicles, including 43,000 on one of the vehicles. Each vehicle was sold for over $200. Both Scott Hamilton and Frank Van Buskirk of Glen Organ Ford and Frank Melton of Valley Dodge testified at the preliminary hearing that they would not have purchased these vehicles from the defendant had they known that the odometers had been changed as to the mileage registered.

The People contend that the provisions of section 11713, subdivision (n), of the Vehicle Code ¹ do not preclude prosecution of the defendant for theft under section 484 of the Penal Code. The defendant contends that where a general statute (Pen.Code § 484) and a specific statute (Veh.Code, § 11713, subd. (n)) encompass the same offense, 'they cannot stand together, and the specific statute will prevail.'

',2] The fundamental test as to whether statutes are in conflict with each other is the legislative intent. If it appears that the statutes were designed for different purposes, they are not irreconcilable, and may stand together.' (People v. Lustman, 13 Cal.App.3d 278, 288, 91 Cal.Rptr. 548, 555.) Section 484 of the Penal Code is intended to prevent the theft of another person's property, including the obtaining of the property or money of another by false pretenses, whereas the purpose of section 11713, subdivision (n), of the Vehicle Code, which relates to regulation of persons holding a dealer's license, is to cause such persons not to 'disconnect, turn back, or reset the odometer of Any motor vehicle . . .' (Italics added.) Thus, under section 11713, subdivision (n), of the Vehicle Code it is unlawful to reset the odometer of any motor vehicle, and the offense may be committed irrespective of whether such vehicle is sold to another person after such resetting. But to bring a case within the proscription of section 484 of the Penal Code requires further action, such as the transfer of the automobile upon which the odometer has been reset to another person with the specific intent to fraudulently obtain money or property from that person, acting in reliance upon the false representation as to mileage.

In People v. Phillips, 64 Cal.2d 574, 581--582, 51 Cal.Rptr. 225, 414 P.2d 353, a contention was made that under the circumstances of that case section 1714 of the Health and Safety Code, which provides that it is a misdemeanor to make specified false representations with respect to the diagnosis and treatment of cancer, precluded a determination that the defendant was guilty of the felony of grand theft under section 484 of the Penal Code. The court said (at page 582, 51 Cal.Rptr. at page 231, 414 P.2d at page 359): 'We cannot accept the proposition that the misdemeanor section forecloses the felony prosecution. A conviction for grand theft requires proof that the victim relied on defendant's representations and that he actually parted with value. (Citations.) No such requirements need be met in prosecutions under Health and Safety Code section 1714. Accordingly, we may infer that the Legislature intended the new statute to supplement, not supplant, Penal Code section 484.' (See People v. Cohen, 12 Cal.App.3d 298, 320--321, 90 Cal.Rptr. 612, wherein it was held that prosecution for grand theft (Pen.Code, § 484) was not precluded by section 556 of the Insurance Code.)

,4] In the present case, as previously stated, establishment of the commission of the misdemeanor defined by section 11713, subdivision (n), of the Vehicle Code does not require proof that the accused fraudulently induced another person to part with value. Accordingly, it is manifest that the Legislature did not intend that the provisions of section 11713, subdivision (n), of the Vehicle Code should supplant the provisions of section 484 of the Penal Code in a case of the nature of that herein involved. That section of the Vehicle Code did not preclude prosecution of the defendant for grand theft under the Penal Code.

Nor does the 'actual loss,' as the defendant asserts, determine the existence of theft or the degree thereof. 'If the victim is induced to part with money or property in exchange for other property fraudulently misrepresented, the crime is committed; it is not a defense that no permanent loss occurred; the victim is defrauded if he did not get what he bargained...