Opinion
F040501.
10-22-2003
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY RALPH CARRILLO, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, R. Todd Marshall and Armand R. Feliciano, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Timothy Ralph Carrillo, was convicted by a jury of two counts of grand theft (Pen. Code, § 487, subd. (a)) and two counts of theft by false pretenses (§ 532, subd. (a).) The trial court subsequently sentenced appellant to a total term of three years and eight months.
All further references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends the evidence was insufficient to support all of his convictions and, alternatively, that section 532 was impliedly repealed by section 484 thus barring his false pretenses convictions. We agree that the evidence was insufficient to support the grand theft convictions, and will reverse those counts. We reject appellants remaining claims.
This disposition moots appellants remaining contention that grand theft is a lesser included offense of theft by false pretenses.
FACTS
Appellant was employed as a salesman for Valley Home Improvement (VHI) from November 1998 until February 1999, when he disappeared without explanation. VHI is a general contractor handling home improvement projects. VHI did not engage in building new homes. In his position as a salesman, appellant was responsible for finding business for the company and writing contracts.
In January 1999, Jim Morrow, another VHI salesman, entered into a contract with Manuel Reyes for home improvements totaling $ 10,375.50. The contract required a down payment of $75.50. The contract and the down payment were transferred to VHI from Morrow. Morrow stated that appellant accompanied him as an interpreter in making the Reyes contract.
Reyes testified that appellant arrived at his house the day after he had entered into the contract with VHI to correct an error in the contract. Appellant told Reyes that the deposit was supposed to be $375.50 not $75.50. Appellant stated he needed the additional $300 in cash to speed up the process. Reyes gave appellant the money and appellant gave Reyes a new contract. The new contract was for a total amount of $10,375.50 and reflected a deposit of $375.50.
After providing Reyes with the new contract, appellant returned to Reyess home nearly every day to check the progress on the improvements. Appellant told Reyes that he could install a new garage door and drywall in the garage for $1,000 and Reyes agreed to the deal. Appellant asked for the money in cash, which Reyes gave to him after going to the bank. Appellant stated he would return the next day with a contract for the garage work; however, Reyes never saw appellant again after giving him the money.
According to Deborah Warring, an owner of VHI, it is not VHIs practice to have a salesman follow up on a job once the contract has been signed. She testified that appellant never transmitted either the additional $300 deposit or the $1,000 for the garage door to VHI.
Reyes introduced appellant to Maria Barragan while he was doing work for Reyes. Barragan expressed interest in building a new home and appellant told her his company could do the work. Appellant signed a paper indicating that it would cost Barragan $300 for blueprints and $150 for permits to start the project. Barragan paid appellant the money in cash at appellants request. After paying appellant the money, Barragan never saw appellant again except one day when he was driving off in his car. VHI never entered into a contract with Barragan or received money for the blueprints and permits.
DISCUSSION
I. Substantial evidence supports appellants convictions for theft by false pretenses.
Appellant claims the evidence was insufficient to support his theft by false pretenses convictions. Specifically, he contends that the evidence failed to demonstrate that the victims intended to transfer title of the money to appellant, an essential element of the offense. We conclude the evidence is sufficient to support the verdicts.
When the sufficiency of the evidence is challenged on appeal, the court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence and excluding inferences based on speculation or conjecture. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.)
The crime of theft by false pretenses requires proof that (1) the defendant made a false representation or pretense to the owner of the property, (2) with the intent to defraud the owner of the property, and (3) the owner of the property transferred the property to the defendant in reliance on the representation. (People v. Miller (2000) 81 Cal.App.4th 1427, 1440; People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.)
Relying on People v. Delbos (1905) 146 Cal. 734, appellant argues that his conviction of theft by false pretenses was unsupported by the evidence because the victims did not intend to transfer title of their money to appellant. In Delbos, the defendant was convicted of larceny. The victim, who wanted to purchase a house, asked the defendant to prepare a deal for her. The defendant found a seller willing to sell a house for $90. The defendant told the victim that she could buy the house for $500. The victim agreed and gave money to the defendant to complete the deal. (Id. at p. 735.) The California Supreme Court held that the defendant was properly convicted of larceny and not theft by false pretenses. The court explained that it is the intent of the victim that is paramount. If the delivery of the property is intended to pass title, then the crime is theft by false pretenses. (Id. at p. 736.) The court reasoned that the defendant was properly convicted of larceny because the victim did not intend for title to pass to the defendant; rather, she intended to have the defendant simply take possession of the money and transport it to the seller who would then take title of the money.
A similar result was recently reached in People v. Traster (2003) 111 Cal.App.4th 1377. There, the defendant was convicted of theft by false pretenses. He was hired by the victims to handle their computer problems. The defendant informed the victims that they needed to acquire licenses for their computer software, and the victims authorized the purchases and gave appellant the money to acquire the licenses. The defendant did not purchase the licenses but, rather, converted the money to his own use. (Id. at pp. 1380-1385.) The appellate court held that appellant was improperly convicted of theft by false pretenses because the victims did not intend for the title of the money to pass to the defendant. Instead, they intended to acquire software licenses, and the funds the victims provided to the defendant were for that sole purpose. (Id . at pp. 1388-1389.) Because the victims did not intend for the title of the money to pass until it was used for purchasing the licenses, the defendant never acquired title to the money. As such, his crimes were more properly characterizes as larceny by trick.
Unlike the defendants in Delbos and Traster, appellant was not a mere carrier of the money; he was accepting the money on behalf of VHI. Appellant was working as a salesperson for VHI. Reyes gave appellant $300 in cash for a deposit on work to be done by the company and an additional $1,000 to pay for the installation of drywall and a garage door. Barragan gave appellant $450 for blueprints and permits to construct a new home. When the victims transferred the money to appellant, they intended for title to pass at that moment as compensation for the work to be done. Because appellant was an employee of the company, the jury was entitled to infer that the victims intended for appellant to take immediate title to the money as a representative of the company. Therefore, the facts of the instant case demonstrate that appellant was guilty of theft by false pretenses.
II. The evidence was insufficient to support the grand theft charges.
Appellant contends, and respondent concedes, that his convictions for grand theft must be reversed because they were unsupported by the evidence. Appellant was charged with grand theft that was prosecuted on a theory of larceny. The crime of larceny requires that the victim not consent to the loss of possession of the property. (People v. Davis (1998) 19 Cal.4th 301, 305.) Here the evidence was uncontradicted that both Reyes and Barragan consented to the transfer of their property to appellant. Therefore, the evidence was insufficient to support the grand theft convictions and the convictions must be reversed.
III. Appellant was properly convicted of theft by false pretenses.
Appellant argues that his convictions for theft by false pretenses must be reversed because section 532 has been repealed by implication by section 484. We disagree.
All presumptions are against repeal by implication. (People v. Acosta (2002) 29 Cal.4th 105, 122.)
"The presumption against implied repeal is so strong that, `To overcome the presumption the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation. The courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together. ... Courts have also noted that implied repeal should not be found unless `... the later provision gives undebatable evidence of an intent to supersede the earlier ...." (Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 419-420.)
Here the statutes are not irreconcilable or inconsistent with each other. Section 532, subdivision (a), provides as follows:
"Every person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, or who causes or procures others to report falsely of his or her wealth or mercantile character, and by thus imposing upon any person obtains credit, and thereby fraudulently gets possession of money or property, or obtains the labor or service of another, is punishable in the same manner and to the same extent as for larceny of the money or property so obtained."
In 1927, the Legislature amended section 484, the theft statute, to include the crimes of larceny, false pretenses and embezzlement. (Stats. 1927, ch. 619, p. 1046, § 1.) That statute provides in relevant part:
"(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft...."
The purpose of the amendments to section 484 was to consolidate the theft crimes and "to remove the technicalities that existed in the pleading and proof of these crimes at common law." (People v. Ashley (1954) 42 Cal.2d 246, 258.) Although the crime of false pretenses was integrated into the theft statute, the elements of the crime remained unchanged. (Ibid .)
Appellant argues that because the Legislature consolidated theft by false pretenses along with other theft crimes into one statute, it must have intended to repeal section 532. Indeed, one case has noted: "[T]o the extent indicated by the sameness or the similarity of language and construction of the two statutes, it would seem incontrovertible that the applicable provisions of section 484 have superseded, or in effect, repealed the identical provisions of section 532." (People v. Carter (1933) 131 Cal.App. 177, 182.) We disagree with Carter for two reasons.
First, we note that sections 532 and 484 overlap, in that they both provide punishment for the act of theft by false pretenses. Indeed, as Carter itself noted, "no repugnancy nor inconsistency may be discovered to exist between them. The object or purpose of the two statutes is identical one with the other." (People v. Carter, supra, 131 Cal.App. at p. 182.) Because sections 532 and 484 are not inconsistent with each other, the rule of repeal by implication does not apply. (In re Manuel L. (1994) 7 Cal.4th 229, 235.) Second, we note that the Legislature amended section 532 in 1989, well after Carter was decided, by adding a new subdivision. By amending the statute, the Legislature reenacted it. (Cal. Const., art. IV, § 9.) Therefore, the Legislature cannot be said to have the intent to repeal the subdivision. Therefore, we reject appellants claim that section 532 has been repealed by implication.
DISPOSITION
The convictions on counts 1 and 3, grand theft (§ 487, subd. (a)), are reversed and the cause is remanded for resentencing. In all other respects, the judgment is affirmed.
We Concur: Wiseman, Acting P.J., Gomes, J.