Opinion
Rehearing Denied Jan. 16, 1961.
Hearing Granted Feb. 20, 1961.
Opinion vacated 12 Cal.Rptr. 500.
Russell E. Parsons and Harry E. Weiss, Los Angeles, for appellants.
Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Ernest E. Sanchez, Deputy Atty. Gen., for respondent.
VALLEE, Justice.
By information defendants were accused of grand theft and attempt to commit grand theft. Count I accused them of unlawfully taking $4,900 cash from John P. Lane on December 6, 1958. Pen.Code, § 487, subd. 1. Count II accused them of unlawfully attempting to take $4,000 from A. B. Valenzuela The assignments of error are: 1. the information fails to state acts or omissions constituting a public offense with reasonable notice to the accused sufficient to prepare and present a defense; 2. there is no evidence of any element of either offense attempted to be charged shown to have taken place within the jurisdiction of the state of California.
The first assignment of error which, in effect, says neither count of the information states a public offense has no merit. The allegations of the information are stated in the margin. 'Section 952 [Penal Code], which formerly required the pleading to set forth the particular circumstances of the offense charged, as amended, declares that it shall be sufficient if it be 'in any words sufficient to give the accused notice of the offense of which he is accused.' There, in a nutshell, is stated the principle of our present simplified form of pleading a criminal offense--the accused is entitled to notice of the offense of which he is charged but not to the particular circumstances thereof, such details being furnished him by the transcript of the testimony upon which the indictment or information is founded.' People v. Beesly, 119 Cal.App. 82, 85-86, 6 P.2d 114, 115; People v. Braddock, 41 Cal.2d 794, 799, 264 P.2d 521. 'Notice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate (or the grand jury); defendant is entitled to such transcript under section 870 (or § 925) of the Penal Code.' People v. Roberts, 40 Cal.2d 483, 486, 254 P.2d 501, 503; People v. Yant, 26 Cal.App.2d 725, 730, 80 P.2d 506.
Count I: 'The said Douglas Anderson and Fred Padilla are accused by the District Attorney of and for the County of Los Angeles, State of California, by this information, of the crime of Grand Theft in violation of Section 487, Subdivision 1, Penal Code of California, a felony, committed as follows: That the said Douglas Anderson and Fred Padilla on or about the 6th day of December, 1958, at and in the County of Los Angeles, State of California, did will-fully, unlawfully and feloniously take Forty Nine Hundred and 00/100 Dollars ($4900), in money lawful money of the United States, the personal property of John P. Lane.'
The information is so worded as to give defendants notice of the offenses with which they were charged. It meets the requirements of Penal Code, §§ 951 and 952. At no time during the trial did defendants assert they were unaware of the charges made against them. The judgments do not, because of the form of the information, deprive defendants of due process of law, as they assert. See People v. Quinn, 94 Cal.App.2d 112, 116, 210 P.2d 280; People v. Vetri, 178 Cal.App.2d 385, 393-394, 2 Cal.Rptr. 795.
Count I
John P. Lane had known defendant Padilla about a year or more before December 5, 1958. He had placed bets with Padilla on a number of occasions. About December 5, 1958 Padilla telephoned Lane and said he had a business proposition he wanted to make to him. Lane said he would meet him at Pepper Mill Restaurant. Lane Lane went to his bank and withdrew $4,000 cash. The next day McKinny called him and said he had made hotel reservations at the Riviera but had not been able to make plane reservations. He asked Lane to make his own plane reservation. Lane did so. All of the foregoing facts relating to count I took place within the County of Los Angeles, California.
Lane arrived in Las Vegas the next day. He checked into the Riviera and found a note waiting for him which read: 'Dan McKinny will call you shortly. Unable to meet you at the airport.' McKinny called him shortly and asked him whether he had come alone and brought the money. Lane said he had $4,000. McKinny said it would take $5,000 'to swing the deal.' Lane said, 'Well, that creates no problem. I will go down and cash a check for a thousand dollars at the hotel.' He then went to a hotel on the 'Strip' where he had credit and cashed a check for $1,000. He returned to his room. McKinny arrived shortly. In a few minutes the telephone rang and a person asked Lane if 'Don McKinsey' was there. Lane said, 'Don McKinsey, or do you mean Dan McKinney?' The voice said, 'Yes, I mean Dan McKinney.' McKinny talked on the phone and in a few minutes a man came into the room. He was introduced to Lane as Bob Cox. Cox had a dealer's apron sticking out of his pocket. Cox told Lane that McKinny 'was well known in Las Vegas, knew all the pit bosses and everything else, and he was a professional gambler, and how he was taking different casinos and never did an honest day's work in his life, or words to that effect. And he said, 'It's a sure cinch that you can't lose any money at this system.'' Cox left. Lane and McKinny started down to the casino. On the way Lane asked, 'Well, where are we heading for now?' McKinny replied, 'We will go over to the Star Dust. This is where we will be playing.' They arrived at the Star Dust about 7 p. m. McKinny said, 'Well, it's a little early yet. The fellows I know, they are not around the casino right now. They come on at 7:20. Why don't you try your luck at the crap table?'
Lane bought a hundred dollars worth of $5.00 chips, 'made a few passes with the dice, and won a little bit of money.' About 10 minutes later McKinny punched Lane on the shoulder and said, 'I's getting kind of late. We'd better cash that money Lane contacted Padilla in Los Angeles by phone on December 8 and this conversation occurred:
'Lane: Mr. Padilla, it was a fine way you set me up.
'Padilla: What do you mean, Johnny?
'Lane: You know darn well what I mean. It was a con game all the way and you had a part in it.
'Padilla: Honest, Johnny, I didn't have nothing to do with it. I never knew he ran out with the money. Can I see you?
'Lane: Well, you better get over and see me quite fast.'
Padilla went over the next morning and in the conversation said, 'I never believed Doug Anderson would do that.' Lane asked, 'Why did you introduce him to me as Dan McKinney?' Padilla 'put his hands up to his face and made no comment.' Padilla then said he would try to get Lane's money back for him. A week later Padilla said he was unable to locate McKinny, calling him Anderson, that he knew Lane had been 'taken' for the money and if given time he would get it back. On December 18 Padilla gave Lane a demand note for $4,900. The note was not paid and Lane reported the transaction to the district attorney.
Count II
A. B. Valenzuela was introduced to Padilla about January 1, 1959. He saw him again about January 25. Padilla told Valenzuela 'he had a deal in Las Vegas that would make some money'; they would go to Las Vegas but he would have to contact his partner and they would meet the next evening at the Embassy Club in Gardena; Padilla said 'he had things fixed'; they 'could clean up,' and 'probably make ten, twelve thousand dollars in a night.'
Valenzuela went to the Embassy Club the following evening. Padilla came in with a man he introduced to Valenzuela as 'Bill.' Bill is defendant Anderson. Bill had a dark, 'handlebar mustache' and wore a wig. They told Valenzuela how they would 'work'--Bill would lead, Valenzuela would 'stay ten or twelve feet behind him,' and when he told him (Valenzuela) 'the pitch was on', he was 'to go and start gambling.' Valenzuela was told he would finance 'the deal' and would have to have about four to five thousand dollars. Profits were to be shared three ways, with expenses 'off the top.' He was told that when they had everything ready they would call him. Valenzuela gave Padilla his business card with his telephone number on it.
Padilla called Valenzuela the next day, said he had everything ready, and he would meet him that evening. Valenzuela then contacted the district attorney and two investigators went to his home. They set up a recording device in his bedroom and remained with him. Padilla telephoned again and said he would be at Valenzuela's home at 8:30. Valezuela said he had $4,000 in cash. Padilla said it was a good deal and made some reference to the reservations. Padilla went to Valenzuela's home about 7:30 that evening. Valenzuela introduced the investigators as 'oil men.' Padilla was arrested as he was about to leave. One of the investigators asked him, 'What's the situation in this matter and how did you get mixed up in it?' Padilla hung his head for a moment and the investigator asked him, 'Freddie, don't you want to tell me the story on it?' Padilla replied, 'I don't know how I got mixed up in it. I'm ashamed of it.' The investigator said, 'It's pretty obvious that this situation is a similar one to the John Lane case.' Padilla answered, 'I didn't get one dime of the money.' One of the investigators asked Padilla how he arrived there. He said he had been driven by a 'Filipino' boy he knew as Joe. The other investigator saw a Cadillac circling the block. Other officers stopped the Cadillac. Defendant Anderson was driving it. He did not have a wig or a mustache. Valenzuela asked Anderson, 'Where in the hell in your mustache?' Anderson said, 'Who are you? I don't even know you.' Valenzuela replied, 'The hell you don't. * * * you're wearing the same shirt you had on last night.' Anderson made no comment. All of the facts relative to count II took place within the County of Los Angeles, California.
In essence the second assignment of error is that on the foregoing facts the superior court did not have jurisdiction to try and convict defendants.
The Penal Code provides for punishment of all persons who commit a part of a crime within this state or who, with intent to commit a crime, do any act within this state in execution or part execution of such intent which culminates in the commission of a crime in another state. Pen.Code, §§ 27, subd. 1, 778a.
Penal Code, § 27: 'The following persons are liable to punishment under the laws of this state:
Penal Code, § 778a: 'Whenever a person, with intent to commit a crime, does any act within this state in execution or part execution of such intent, which culminates in the commission of a crime, either within or without this state such person is punishable for such crime in this state in the same manner as if the same had been committed entirely within this state.'
In People v. Buffum, 40 Cal.2d 709, 256 P.2d 317, it was held that these sections, construed in the light of the general principle that ordinarily a state cannot impose punishment for acts done outside its territory, require that the acts of the defendants within this state amount to at least an attempt. The court said (at page 716, 256 P.2d at page 320,):
'It is apparent from the authorities which have discussed subdivision 1 of section 27 and similar statutes in other jurisdictions that such a provision can apply where the acts done within the state are sufficient to amount to an attempt to commit a crime but not otherwise. * * * To read such a statute as authorizing the punishment by one state of acts which do not amount to an attempt but are merely preparatory to the commission of a crime in another state would seem tantamount to an effort to regulate conduct in the other jurisdiction. [Citation.]
'Section 778a of the Penal Code should also be construed as applying only where the acts done within the state amount to an attempt. By its terms the section is limited to acts done 'in execution or part execution of' an intent to commit a crime, and these words are comparable to the expression 'in whole or in part' as used in subdivision People v. Miller,
People v. MacDonald,The sole question is whether under each count the acts of defendants in this state amounted to an attempt to violate Penal Code, § 487, subd. 1.
Grand theft under Penal Code, § 487, subd. 1, is included in theft as defined in Penal Code, § 484, (People v. Coe, 171 Cal.App.2d 786, 792-793, 342 P.2d 42), which in turn includes larceny by trick and device and obtaining property by false pretenses. People v. Otterman, 154 Cal.App.2d 193, 205, 316 P.2d 85. 'Although the crimes of larceny by trick and device and obtaining property by false pretenses are much alike, they are aimed at different criminal acquisitive techniques. Larceny by trick and device is the appropriation of property, the possession of which was fraudulently acquired; obtaining property by false pretenses is the fraudulent or deceitful acquisition of both title and possession. * * * The elements of the several types of theft included within section 484 have not been changed, however, and a judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.' People v. Ashley, 42 Cal.2d 246, 258, 267 P.2d 271, 279. If the acts of defendants committed in California amount to attempts to commit grand theft, they were attempts to commit larceny by trick and device.
'In order to establish an attempt, it must appear that the defendant had a specific intent to commit a crime and did a direct unequivocal act toward that end.' People v. Gallardo, 41 Cal.2d 57, 66, 257 P.2d 29, 35. 'Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter and the act must not be equivocal in nature.' People v. Buffum, 40 Cal.2d 709, 718, 256 P.2d 317, 321; People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308, 98 A.L.R. 913. 'Preparation is devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement toward the commission after the preparations are made.' People v. Franquelin, 109 Cal.App.2d 777, 784, 241 P.2d 651, 655.
The conduct of defendants within this state warranted a finding by the jury that defendants had the specific intent to obtain the money of each of the prosecuting witnesses through trick and device and that the contacts were made with them expressly for the purpose of laying the ground work to that end. The crucial question is whether the representations made by defendants amount to direct unequivocal acts which would lead to culmination of the offenses unless interrupted by circumstances independent of any actions on their parts.
The making of false representations may amount to an attempt to commit theft. See People v. Camodeca, 52 Cal.2d 142, 338 P.2d 903, in which the only further act necessary to consummate the crime of grand theft was actual receipt of the money by the defendant. Where a defendant, with the intent to defraud, makes false representations designed to lead another without further word or act by defendant to transfer possession of his property to the defendant People v. Chapman,
People v. Harden,In the present case defendant Padilla introduced defendant Anderson by a fictitious name. Anderson disguised himself by wearing a wig and heavy mustache. Defendants told Lane they had a system which made it impossible to lose at roulette; that even if something went wrong, 'they knew the dealers and they knew the pit boss and everything else, and they were sure that it was a sure thing; you couldn't lose any money whatsoever.' Lane was to make the bets. Padilla told Valenzuela 'he had a deal in Las Vegas that would make some money * * *, he had things fixed and we could clean up; we'd probably make ten, twelve thousand dollars in a night.' 'Bill [Anderson] said that he would lead, and then I'd stay ten or twelve feet behind him, and when he told me the pitch was on, for me to go on and start gambling.'
We are of the opinion the representations come within the range of acts comprising preparation but are insufficient as acts amounting to attempts. Defendants' representations that they had a system for winning or that they had it fixed so they could not lose resulted in Lane's taking his funds to Las Vegas and were sufficient to have resulted in Valenzuela's doing likewise. But they were not directed to the transfer of the prosecuting witnesses' money of defendants; they were directed toward arranging situations in which the prosecuting witnesses would have the money in cash on their persons at a place conducive to fast transfer of cash. They did not tend to set in motion circumstances sufficient to culminate in the commission of the crimes.
In each instance some further unequivocal act by defendants in Las Vegas was required before either Lane or Valenzuela would have had cause to part with his money. Nowhere in the record is there evidence that they were to transfer possession of their money to defendants as part of defendants' represented scheme. On the contrary, Lane testified that he was to make the bets and Valenzuela testified that he was to start gambling when Anderson told him 'the pitch was on.' The direct act which led to Lane's transfer of his money to Anderson was Anderson's fraudulent statement to Lane in the Star Dust casino at Las Vegas: I will run over and get the $100 chips at the cashier's window, and I will be right back with your chips.' Although the criminal scheme had its beginnings in this state, it appears that, whether by design or fortune, defendants' acts in this state were not such direct and unequivocal acts as would have led to the consummation of the crimes unless interrupted by circumstances independent of the will of defendants.
As said in People v. Buffum, 40 Cal.2d 709, at page 718, 256 P.2d 317, at page 321:
'No case has been cited or found which holds that persons can be convicted of an attempt to commit abortions The People argue the court had jurisdiction on the theory of 'continuing trespass,' citing People v. Case, 49 Cal.2d 24, 28, 313 P.2d 840. The case is not in point. In Case, the prosecuting witness worked for the defendant in Anchorage, Alaska. They took a plane from Anchorage to Portland, Oregon. While the prosecuting Witness was asleep enroute the defendant took her money. On arriving in Portland he admitted to her he had taken it. By false promises to return the money and by threats, he forced her to accompany him to several places, eventually to Los Angeles where they both obtained employment. He was later charged and convicted under Penal Code, § 487, subd. 1. On review the defendant contended the trial court lacked jurisdiction. The Court stated (at page 28, 313 P. at page 843), the defendant 'committed a 'continuing trespass,' which is expressly recognized by our statutes and cases. * * * Section 497 of the Penal Code plainly indicates the Legislature's intent to denounce and punish as larceny the bringing into this state of personal property stolen in another country or state.' These sections are applicable to situations where the defendant brings the property stolen into this state. 'This view rests on the theory that since the rights of possession and ownership remain in the true owner, every act of the thief in the removal of the property is, in contemplation of law, a new taking and carrying away, a complete larceny in itself.' People v. Case, supra, 49 Cal.2d 24, 29, 313 P.2d 840, 843. At bar there was no evidence showing that the money obtained in Las Vegas was brought back to California. The theory of 'continuing trespass' is not applicable.
Penal Code, § 487, subd. 1: 'Grand theft is theft committed in any of the following cases:
We hold that under neither count do the acts of defendants in this state amount to an attempt, and that the trial court did not have jurisdiction to try or convict defendants of the offenses charged in the information.
The judgments are reversed.
SHINN, P.J., concurs.
FORD, Justice (dissents).
I dissent.
Two elements are necessary to establish an attempt, namely, 'a specific intent to commit a crime and a 'direct' ineffectual act done towards its commission.' People v. Buffum, 40 Cal.2d 709, 718, 256 P.2d 317, 321. In the prevailing opinion it is stated that the 'conduct of defendants within this state warranted a finding by the jury that defendants had the specific intent to obtain the money of each of the prosecuting witnesses through trick and device.' I agree with that statement. See People v. Darnell, 97 Cal.App.2d 630, 634, 218 P.2d 172; People v. Lyles, 156 Cal.App.2d 482, 486, 319 P.2d 745; People v. Anderson, 95 Cal.App. 225, 228, 272 P. 755; People v. Heinrich, 65 Cal.App. 510, 515, 224 P. 466. But I believe Inherent in the crime of larceny by trick and device is the obtaining of possession of property by means of fraud and trickery by one who has a preconceived design to appropriate such property to his own use. People v. Bartges, 126 Cal.App.2d 763, 770, 273 P.2d 49; People v. McCabe, 60 Cal.App.2d 492, 496, 141 P.2d 54; People v. Mills B. Sing, 42 Cal.App. 385, 391, 183 P. 865. In each instance, the fraudulent statements and representations made by the appellants constituted the device used by them to further their confidence game. See People v. Lafka, 174 Cal.App.2d 312, 314-315, 344 P.2d 619; cf. People v. Johnson, 136 Cal.App.2d 665, 289 P.2d 90; People v. Darnell, 97 Cal.App.2d 630, 218 P.2d 172. In People v. Buffum, supra, 40 Cal.2d 709, 256 P.2d 317, the arranging for transportation and the actual transportation of the women formed no part of the crime of abortion and was merely conduct preparatory in nature rather than a direct, unequivocal act done toward the commission of the offense. But in the present case, the respective acts in this state directed toward each intended victim formed part of the essence of the crime intended and constituted an appreciable fragment thereof. As stated in People v. Von Hecht, 133 Cal.App.2d 25, at page 39, 283 P.2d 764, 773: 'And, once the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt. People v. Anderson, 1 Cal.2d 687, 690, 37 P.2d 67.' An overt act need not be the ultimate act toward the consummation of the design; it is sufficient if it is the first or some subsequent step directed towards that end after the preparations are made. People v. Gibson, 94 Cal.App.2d 468, 470, 210 P.2d 747; People v. Parrish, 87 Cal.App.2d 853, 856, 197 P.2d 804.
I would affirm the judgment.
Rehearing denied: FORD, J., dissented.
Count II: 'For a further and separate cause of action, being a different offense of the same class of crimes and offenses as the charge set forth in Count I hereof, the said Douglas Anderson and Fred Padilla are accused by the District Attorney of and for the County of Los Angeles, State of California, by this information, of the crime of Attempted Grand Theft in violation of Section 487, Subd. 1 P.C. and Sec. 664 P.C., a felony, committed as follows: That the said Douglas Anderson and Fred Padilla on or about the 27th day of January, 1959, at and in the County of Los Angeles, State of California, did willfully, unlawfully and feloniously attempt to take Four Thousand and 00/100 Dollars ($4,000.00), in money, lawful money of the United States, the personal property of A. B. Valenzuela.'
'1. All persons who commit, in whole or in part, any crime within this state * * *.'
'1. When the money, labor or real or personal property taken is of a value exceeding two hundred dollars ($200); provided, that when domestic fowls, avocados, olives, citrus or deciduous fruits, nuts and artichokes are taken of a value exceeding fifty dollars ($50); provided, further, that where the money, labor, real or personal property is taken by a servant, agent or employee from his principal or employer and aggregates two hundred dollars ($200) or more in any 12 consecutive month period, then the same shall constitute grand theft.'