People v. Whitmer

Decision Date24 July 2014
Docket NumberNo. S208843.,S208843.
Parties The PEOPLE, Plaintiff and Respondent, v. Jeffrey Allen WHITMER, Defendant and Appellant.
CourtCalifornia Supreme Court

Eric R. Larson, San Diego, under appointment by the Supreme Court, and Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson, Michael C. Keller and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.


Defendant, the manager of a motorcycle dealership, arranged for the fraudulent sales of vehicles to fictitious buyers. A jury convicted him of 20 counts of grand theft for 20 separate fraudulent sales. We must decide whether defendant was properly convicted of a separate theft for each vehicle fraudulently sold, or whether he could be convicted of only one count of grand theft because all of the sales were part of a single scheme. Resolution of the issue requires us to revisit language in People v. Bailey (1961) 55 Cal.2d 514, 11 Cal.Rptr. 543, 360 P.2d 39 (Bailey ) that some Courts of Appeal have interpreted as permitting only one conviction of grand theft in circumstances like this.

We conclude that past appellate courts have interpreted Bailey more broadly than is warranted. We agree with the Court of Appeal in this case that a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme. We disapprove of Court of Appeal decisions that are inconsistent with this conclusion.

However, we also conclude we cannot constitutionally apply this rule to defendant. Under the law that has existed for decades, defendant could only have been convicted of a single count of grand theft. We cannot apply the new rule retroactively to him. Accordingly, and for this reason only, we reverse the judgment of the Court of Appeal, which had affirmed the judgment of conviction for the 20 counts of grand theft.


The Court of Appeal opinion, authored by Justice Manella, summarized the relevant facts: "The prosecution submitted evidence that [defendant], while acting as manager for a motorcycle dealership, arranged for the fraudulent sale of 20 motorcycles, motorized dirt bikes, all-terrain vehicles (ATVs), and similar recreational vehicles. In collaboration with Mordichi Mor, [defendant] arranged fraudulent sales to fictitious buyers, using falsified financing agreements and credit purchases, resulting in monetary losses to the dealership." The Court of Appeal explained that each transaction resulting in a conviction "involved a different vehicle. The 20 transactions occurred on 13 different dates. With the exception of two dates, whenever more than one transaction occurred on a single date, the transactions involved distinct fictitious buyers. On the two dates a fictitious buyer purportedly bought more than one vehicle, the transactions involved separate paperwork and documentation." The value of the stolen vehicles ranged from $9,100 to over $20,000 per vehicle, resulting in a total loss to the dealership of over $250,000.

As relevant here, a jury convicted defendant of 20 counts of grand theft, one count for each of the vehicles fraudulently sold. ( Pen.Code, § 487.) It also found true an enhancement allegation that defendant took, damaged, or destroyed property valued at more than $200,000. (Pen.Code, former § 12022.6, subd. (a)(2).) The court sentenced defendant to prison for a total of 12 years.

Defendant appealed, arguing, among other contentions, that he could be convicted of one count of grand theft only. After analyzing our opinion in Bailey, supra, 55 Cal.2d 514, 11 Cal.Rptr. 543, 360 P.2d 39, and reviewing the cases Bailey cited and later cases interpreting Bailey, the Court of Appeal concluded that defendant was properly convicted of one count of grand theft for each vehicle stolen. Recognizing that "other appellate courts have adopted a contrary interpretation of Bailey, " it "urge[d]" this court "to revisit Bailey, as the guidance it offers regarding the aggregation of grand thefts is difficult to discern."

We granted defendant's petition for review and later limited review to the question of whether he was properly convicted of multiple counts of grand theft.


The evidence shows that each count of grand theft was based on a separate and distinct act. Each transaction resulting in a stolen vehicle, even those transactions occurring on the same date, involved separate paperwork and documentation. We must decide whether defendant was properly convicted of one count of grand theft for each vehicle he stole, as the Court of Appeal found, or whether, as he argues, he can only be convicted of one count of grand theft. Central to this question is the proper interpretation of our opinion in Bailey, supra, 55 Cal.2d 514, 11 Cal.Rptr. 543, 360 P.2d 39.

In Bailey, the defendant fraudulently told a welfare office that a man she had been living with had left her home. Later, and due to this misrepresentation, she received a series of welfare payments that she was not entitled to receive. She was convicted of one count of grand theft based on her receiving this series of welfare payments. ( Bailey, supra, 55 Cal.2d at pp. 515–516, 11 Cal.Rptr. 543, 360 P.2d 39.) Each payment, individually, would have constituted petty theft, but the payments totaled more than $200, which at the time constituted grand theft. ( Id. at p. 518 & fn. 3, 11 Cal.Rptr. 543, 360 P.2d 39.) This court had to decide whether the defendant "was guilty of grand theft or of a series of petty thefts since it appears that she obtained a number of payments, each less than $200 but aggregating more than that sum." ( Id. at p. 518, 11 Cal.Rptr. 543, 360 P.2d 39.) The trial court had "instructed the jury that if several acts of taking are done pursuant to an initial design to obtain from the owner property having a value exceeding $200, and if the value of the property so taken does exceed $200, there is one crime of grand theft, but that if there is no such initial design, the taking of any property having a value not exceeding $200 is petty theft." (Ibid. )

We found the defendant was properly convicted of grand theft. "Several recent cases involving theft by false pretenses have held that where as part of a single plan a defendant makes false representations and receives various sums from the victim the receipts may be cumulated to constitute but one offense of grand theft. [Citations.] The test applied in these cases in determining if there were separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents. The same rule has been followed in larceny and embezzlement cases, and it has been held that where a number of takings, each less than $200 but aggregating more than that sum, are all motivated by one intention, one general impulse, and one plan, the offense is grand theft. [Citations.]" ( Bailey, supra, 55 Cal.2d at p. 518–519, 11 Cal.Rptr. 543, 360 P.2d 39.)

Particularly relevant to the issue presented here, the Bailey court added the following: "Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. [Citation.] In the following cases it was held that each receipt of property obtained by false pretenses constituted a separate offense for which the defendant could be separately charged and convicted. [Citations.] Although none of these decisions discussed the rule set forth above, it does not appear that the convictions would have been affirmed had the evidence established that there was only one intention, one general impulse, and one plan. " ( Bailey, supra, 55 Cal.2d at p. 519, 11 Cal.Rptr. 543, 360 P.2d 39, italics added.)

Citing the language italicized in the previous paragraph from Bailey, supra, 55 Cal.2d at page 519, 11 Cal.Rptr. 543, 360 P.2d 39, defendant argues there can only be one grand theft if multiple acts of grand theft are pursuant to a single intention, a single impulse, and a single plan. He further argues the thefts of this case come within this rule. As we explain below, the argument finds support in later Court of Appeal opinions.

Cases the Bailey court cited, but did not overrule, including cases from this court, support finding multiple counts of grand theft in this case. The Court of Appeal reviewed those cases, beginning with People v. Stanford (1940) 16 Cal.2d 247, 105 P.2d 969 (Stanford ). In Stanford, the Court of Appeal explained, "a lawyer entrusted with control of an elderly woman's property obtained her permission to use her funds to buy property for her. ( Id. at pp. 248–249 .) He took title to the property in his own name and made three payments of the entrusted funds for its purchase, each of which exceeded the threshold amount constituting grand theft. ( Id. at pp. 248–250 .) Following his conviction of three counts of grand theft, the Stanford court affirmed, stating:

‘There is no merit in appellant's contention that the entire transaction could not constitute more than one offense, and that the conviction of three separate offenses was error.... In the present case the evidence showed that the thefts referred to in the first three counts of the indictment were separate and distinct transactions, which occurred on different dates, and involved the taking of different sums of money. Such separate transactions constituted separate offenses. [Citations.] ( Id. at pp. 250–251 .)"

The Court of Appeal also reviewed other...

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