People v. Turner

440.

This is a statement of the However, correct law. the “con- secutive sentences” must be valid sentences in order to' Authority authorize the Adult so to Here, act. there never was imposed in sentence the second action and the commit- a.valid ment based thereon was likewise invalid. Order affirmed.

Shoemaker, J., Taylor, J., concurred. Dist., 1968.] No. 14531. Second Div.

[Crim. Two. Nov. PEOPLE, THE Plaintiff and Respondent, v. THEOPHALUS

TURNER, Appellant. Defendant

441- Weisman, appointment by Walter L. under the Court of Appeal, Appellant. for Defendant and Lynch, Attorney General, James, William E. Thomas C. Attorney General, Christiansen, Dep- Assistant and Mark L. General, Respondent. uty Attorney for Plaintiff and NUTTER, pro tem.*Appellant was found J. subdivision theft in violation of section testimony on the contained in Code in a ease submitted Penal preliminary hearing plus testimony transcript undisputed. largely They appellant. The facts are appellant on June a situation wherein involve agency a car rental of an written contract with entered into a agreement per of $7 two under a rental automobile for deposit Appellant day $40 made a cash plus a mile. $.07 gave a name and identification. rental but false time of the at about a.m. of Approximately 13 hours after the rental while 25, appellant was arrested June away place approximately from the 20 blocks automobile, rental.

* Assigned Judicial Council. Chairman of the Prosecution employee witnesses consisted of an of the rental agency who made the rental credit card appellant making

whose name used the rental agreement. Appellant purchased testified he the identifi- The owner cation. of the credit card that his testified wallet including his gave credit card had been stolen and he never permission appellant Appel- to use card or identification. lant per- used identification credit card without the mission owner and he testified used the false identifica- tion because he believed could not car rent the on his own Appellant identification. testified that he never intended to deprive the owner of his car intended to return it on the morning when it was had pay any due and cash amount deposit. his excessof Appellant contends that the insufficient ground the verdict on the that there was no evi part his dence of intent on the owner of property wholly permanently. Appellant also con erroneously permitted agent tends that the court rental testify he would not have made the automobile available appellant if he had had known false identifica tion. question appeal to be resolved on this is whether there was substantial evidence to the conclusion of the trial

judge requisite acted within the intent. Specifically we must if determine the use of the false identifi- prove in grand cation is sufficient intent theft. reasonably What inferences deducible from these facts? “Upon appeal, reviewing court is bound view the favorably judgment. (People most of evidence Simpson, 553, 31].) v. 43 Cal.2d But the [275 [trier (People Bassett, discretion is absolute.” of not fact’s] p. Cal.Rptr. 193, 122 at 443 P.2d 777].) Cal.2d [70 ‘“ being unsup a verdict attacked as [W]hen power appellate ported, begins court and ends with any substantial a determination as to whether there dence, evi uneontradicted, will which contradicted (People v. Bas reached conclusion fact].’ [trier 138.) supra, p. sett, at resolving appellate “In that contention the court is a trier of fact determine whether reasonable could prov prosecution that the sustained its'burden have found beyond (People a doubt. ing reasonable 104, Cal.Rptr. (1964) supra, 109-110 v. Hall Cal.2d [41 700], citing Huizenga (1950) 34 284, 396 P.2d Cal. prosecution’s 710].) The burden 669, 2d ‘ conviction, the trier of justify a criminal To heavy one: is a certainty. The reasonably persuaded to a near fact must be reasonably rejected all that under have must therefore trier Hall, supra, at Ac (People v. confidence.’ mines determining the record is sufficient whether cordingly, give only ‘sub credit appellate court can respect this inspires reasonably confi i.e., evidence, stantial’ (People Bassett, supra, ‘of ...” and is solid value’ dence p. 139.) (c) (b) and 484, subdivisions Respondent section cited essence, creat- as, California State of the Penal Code upon of false identifica- fraud the use presumption of ing a said agreement. However, a car rental making of tion in the (see 6 until November not effective sections did become 2348), and thus are 1967, pp. 2347, Cal.'Legislative Service Septem- completed on applicable as trial of this case not opinion the con- express as to Obviously no 21, 1967. we ber legal this effect of presumption. The stitutionality of this presumption is not before us. fol of trial contained At the time a presenting to renter lowing language: “The of identification failure to address and which false or fictitious name or bears a days the lease within 10 after return motor vehicle . . . prima agreement expired, facie evidence or rental has shall be quoted language re of fraudulent intent. . . .” The above also a failure quires false identification but the use of expiration to return the vehicle within subject agreement. The reflects that record term hours police approximately 13 obtained automobile was obviously less than making agreement, rental after the trial, agreement. At the time of sec two-day period upon a of a fraudulent tion 484 created failure to identification conjunction the use of false legis within the stated time. Under the automobile return requirement, eliminating time the stated amendment lative may have sufficient evi 1967, there been November effective appellant. convict dence to “ steal, specific intent taking must be with the permanently of another i.e., to proved possession. is no there deprive him of its Unless 353, (1941) 345, (See People v. Photo 45 C.A.2d larceny. 518; 66, 69, 38 P. People (1894) C. v. Brown 71; 320; 107, 111, (1943) 59 138 P.2d Pillsbury C.A.2d 713; (1956) 482, People 479, Farmer 47 C.2d 304 P.2d CALJIC, (1892) 378; 95 C. People Devine P. Perkins, p. 221, 223; Marshall, p. 729; 222: 80; Clark Nos. ” 804; 863; infra, 385.) 12 A.L.R. 82 A.L.R.2d Wharton § (1 Witkin, Crimes, p. 357.) 383, Cal. § course, taking the intent must exist at the time of the Of carrying away. possessor is “The intent to steal an permanently. One who takes another’s for tem concealment, porary returning it, use or the intention with damages larceny. is in tort for but is not (See liable People (1894) v. Brown 518; Perkins, C. Marshall, p. 86.) 224; 730; Wharton (1 Clark Wit 358.) kin, supra, 384(b), p. § proof The intent here must be established the circumstances and facts at the time of the rental with the pointing use of identification. The evidence false here to the joy-riding than intent is less eases which resulted ground conviction reversals on the there was an intent taking. temporary for a As a result of these cases new statutes “temporary taking.” (See were enacted to cover supra, 384(b), p. 1 Witkin, § People Pillsbury, Cal.App.2d In the ease of 107 [138 for theft was reversed where .conviction falsely defendant obtained of an automobile stating that he wanted to use the car purposes for selling it. The defendant continued to lie whenever he was produce proceeds asked to of the sale or posses surrender sion of the car to the owner. The words of the court pages 111-112 charge against here: The defendant, theft, formerly includes the offenses known as larceny, obtain ing property by pretenses false and embezzlement.Defendant People admit, contends and the that a pretenses case of false appear does not here because defendant obtained no title to This the car. contention is parties well taken. Both agree that the case is not one of embezzlement original because the taking was the same character subsequent as the detention, defendant contending that both were innocent and the viewing both as fraudulent wrongful. Either state of the case would exclude embezzlement from consideration. The question remaining consideration, parties for as both agree, finding whether a that defendant larceny by committed fraud, supported trick or device, No evidence. doubt the fraud, clearly appears trick or By device here. his own admis sions, defendant shown to unmitigated have been an liar,

445 fact, in for the whatever telling story with no foundation automobile, and Miss possession getting purpose of thereby to sur induced story Jerome believed intending part him, not then to of the car to possession render Manikheim, real can be said of Carl with title. The same of this other essential elements Two of the of the ear. owner People (1925) Edwards 72 they stated in v. crime, as are is, clearly appear, that Cal.App. 102, 112-116 P. [236 another, and that it was was the ear defendant. into the sole taken ingredient is an of the offense “But another essential justification, right intent, without claim (15 permanently. property wholly and Cal.Jur. Cal.App.2d 512, 38 516 People (1940) 906; v. Coon [101 People Payne Edwards, supra, p. 116; at v. 565]; 328].) where, And as Cal.App. 108, 111 (1931) 117 [3 in trespass or act of violence involved here, no actual must at original taking, exist the time of the felonious Edwards, taking. (15 People supra; v. Peo- 908; Cal.Jur. Cal.App. 703, 962].) 66 706 Look- ple (1924) White v. [226 ing case, we are unable to see such at the evidence ’’ intent. People Tidmore, Cal.App. The words of the court (intent Cal.Rptr. burglary case), 2d 716 at 444] [32 hearing by Supreme Court, here: denied are suspicious may conceded, That circumstances were be ’ conjecture enough. Since the are but mere surmise necessary quantum to overcome the evidence falls short of the resting and to meet the burden on of innocence doubt, guilt beyond a prosecution reasonable to establish State, supra, (See Roberts cannot stand. conviction State, Cr.Rep. Hooks v. ; Tex. S.W.2d Tenn. [124 128] 546; (Mo.) v. Brown 217 S.W.2d 529]; S.W. State [289 344].) Commonwealth, 197 Va. S.E.2d See Dixon v. Bassett, supra, p. 139, where court lists for were reversed failure to several cases where convictions mind, includ prove intent or other state involving theft and embezzlement. ing cases unnecessary it is to discuss the second conten- Accordingly, appeal. tion on judgment is reversed. J.,

Róth, P. concurred. majority opinion correctly I dissent.The HERNDON, J. observes that Penal Code section (b), subdivision as amended effective 8, 1967, provides pertinent November part “intent to commit theft pre- fraud is presents sumed ... bears a false or if one to the owner identification which purpose fictitious name or address for the obtaining agreement.” the lease or rental (c) subdivision provided the same section it is presumptions that “The created (b) presumptions affecting subdivision ’’ producing burden of evidence. provides: Evidence Code pre- “The effect of a sumption affecting producing the burden of require the trier of pre- fact to assume existence of the sumed fact unless and until evidence is introduced. which support finding would a nonexistence, of its which case the trier of fact shall determine the or existence nonexistence presumed regard fact from the evidence without to and. presumption. Nothing the in this section shall to be construed prevent drawing the may appropri- that be of inference (Italics added.) ate.” correctly pointed It is also by majority out the that this prior ease was tried to the effective date of the 1967 amend statutory presumption ment so that the could not have been against invoked the And in that here. connection following At trial, comment made: the time of presumption upon 484 created a of a fraudulent intent a con junction of the use of false identification and a failure to legis return the automobile within the stated time. Under the eliminating requirement, lative amendment the stated time may effective November there have been sufficient evi ’’ appellant. to convict dence necessary effect, holding unavoidable the majority prior is this: that this case tried to November law, as a improper, it was matter for the trier of the of proven fact to from the facts the intent which infer presume in trier of fact would to a the same be case amendment, tried the effective date of the absent evi- nonexistence, finding dence which would of presumed fact. the presumption by Again referring to created the 1967 majority Obviously express amendment, opinion we no state: presumption. constitutionality of this as to the ’1 legal presumption us. effect of is not before constituting hold that

However, to the facts the basis of the statutory presumption are insufficient to a reasonable presumed fact is tantamount to declaration inference As our statutory is unconstitutional. provision that Stevenson, 58 Cal.2d Supreme stated Court rule settled : “The Cal.Rptr. 297, 376 P.2d 297] 797 from evidence another one fact presumption of that a no process if rational connection there is due violative of ’’ presumed. proved and fact fact [Citations.] between is a rational connection that there Although I believe as the basis for the fact declared between presently presumed under effective the fact to be holding requires no the instant case agree statute, I presump- constitutionality determine which would necessary implication. expressly or question tion either trial for the in the case at the basis This is so bench because spe- appellant finding entertained court’s to the fact that obtained steal is not limited cific intent to use of false identification. possession the vehicle gave testimony designed Appellant stand and took the explain A reason for fraudulent course conduct. reading testimony readily indicates the reasonableness of this rejection by the trial court. of its imagine more It would be difficult conduct dishonest and surreptitious appellant than that of this as disclosed “purchased” Appellant instant record. conceded that he had person driver’s license and credit cards of the stolen another subject pre- in order to obtain vehicle. This conceived fraud not enabled obtain control precluded it of a but the owner from valuable recovery. knowing where, whom, look for its Although appellant testified, by way explaining his fail- period, ure to return within the lease had vehicle that he charge day authorities on been arrested another on the fraudulently following obtained lease, there was no other point. employee leasing direct on this The agency the car testified that was recovered until 28. June days the lease 1967, four after had been executed and two Its odometer indicated car due back. that it had approximately 300 miles. been driven similarity to see I am unable sufficient in the facts Lastly, Pillsbury, Cal.App.2d 107 found in holding applicable persuasive in the to render Pillsbury identity instant ease. In the defendant’s true at all known times to vehicle. residence were agent frequent inwas contact with defend- The owner’s and, fact, he was in ant while car “surrendered the car to the defendant owner when the latter use, agreed and the owner at that it for his own time needed sum, might (Page 112.) car.” sell the wrong PiUsbury was in deceiving' of the defendant the sole prospects speci- an the owner as to the immediate sale to a merely hoped party to sell it to some fied whereas then' person thereby undetermined earn commission. Thé “ conduct,pur-' course court could but conclude ‘The with, compatible is not sued defendant ... [the therein] ” (Page" surreptitious activities of a ordinary thief.’ ; credibility and the of witnesses inferences be drawn' the, province being within the from the evidence exclusive reasoning fact, judgment, trier of I affirm the would experienced judge trial herein. petition rehearing 4, 1968,1

A for a was denied December respondent’s petition hearing Supreme for a Court January 15, McComb, J., opinion was denied 1969. was of the petition granted. that the should be Dist., No. 33142. Div. Four. Nov. Second [Civ. 1968.] Petitioner, PECK, WINIFRED S. v. WORKMEN’S COM BOARD, PENSATION APPEALS CHALCO ENGI Respondents. al., NEERING et

Case Details

Case Name: People v. Turner

Court Name: California Court of Appeal

Date Published: Nov 18, 1968

Citation: 73 Cal. Rptr. 263

Docket Number: Crim. 14531

Court Abbreviation: Cal. Ct. App.