People v. Whitmer
230 Cal. App. 4th 906
| Cal. Ct. App. | 2014Background
- Whitmer remanded; Supreme Court limited review to Bailey issue and held single grand theft conviction when applicable.
- Whitmer held defendant may be convicted of multiple grand thefts only under Bailey framework; Whitmer narrowed applicability to appellant here.
- Appellant Whitmer was charged with 21 counts of grand theft of an automobile and 7 counts of false financial statements initially; one grand theft and one false statement count were dismissed; 20 grand theft and 14 false statements remained after amendments.
- Trial evidence showed appellant, as dealership manager, directed offline credit card sales and forged signatures for fictitious buyers involving motorcycles and ATVs; vehicles were misrepresented or financed via false documents; MSOs were replaced with copies.
- Aiding and abetting not charged; evidence showed appellant directly perpetrated the fraud; 14 counts of making false financial statements lacked substantial evidence and were reversed; remaining grand theft convictions were largely limited by Bailey/Whitmer analysis.
- Remanded for resentencing consistent with Whitmer and for handling of 12022.6 enhancement; base term count remains as Count 3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Grand theft of automobile vs. other vehicles | Whitmer contends automobile theory misapplied | Whitmer argues broader vehicle scope mischarged | Automobile not equivalent to motor vehicle; error limited but not prejudice |
| Constitution of making false financial statements as lesser included | Whitmer asserts statements included in grand theft | Vincent/legislation show no written statement required | Not a lesser included offense; convictions reversed for Counts 14,16,18,20,24,26,28,30,32,34,36,38,40,42 |
| Sufficiency of evidence for making false financial statements | Evidence supported falsified statements | No written representations of ability to pay by buyers | Convictions based on credit card transactions lack substantial evidence; reversed for those counts |
| Aiding and abetting instruction | Prosecution theory included direct perpetration | No aiding-and-abetting theory supported | No instructional error; defendant liable as direct perpetrator |
| Ineffective assistance of counsel | Counsel failed to object to amendments | Not necessary; evidence supported charges | Moot due to remaining resolutions; not basis for reversal |
Key Cases Cited
- People v. Bailey, 55 Cal.2d 514 (Cal. Sup. Ct. 1960s (Bailey)) (establishes framework for multiple grand theft convictions under Bailey)
- People v. Whitmer, 59 Cal.4th 733 (Cal. 2014) (limited application of grand theft counts post-Whitmer; one conviction permissible)
- People v. Ortega, 19 Cal.4th 686 (Cal. 1998) (grand theft scope and value concepts under §487(d)(1))
- People v. Thomas, 43 Cal.App.3d 862 (Cal. App. 1974) (grand theft defined; automobile vs. motor vehicle distinction)
- People v. Guiton, 4 Cal.4th 1116 (Cal. 199**) (Guiton/Green rule on multiple theories of guilt)
- People v. Reed, 38 Cal.4th 1224 (Cal. 2006) (elements test for inclusion of offenses)
- People v. Vincent, 19 Cal.App.4th 696 (Cal. App. 199) (fictional names and lack of written financial representations)
- People v. Sandoval, 140 Cal.App.4th 111 (Cal. App. 2006) (informal amendment doctrine for information)
- People v. Davis, 19 Cal.4th 301 (Cal. 1998) (consolidation of theft offenses; elements preserved)
- People v. Vy, 122 Cal.App.4th 1209 (Cal. App. 2004) (substantial evidence standard for appellate review)