PEOPLE v. WHITMER

Appellant’s Petition for Review

Cal.February 28, 2013

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA No. THE PEOPLE OF THE STATE OF CALIFORNIA 2D 231038 Plaintiff and Respondent, LOS ANGELES GA079423 vs. JEFFREY ALLEN WHITMER, Defendant and Appellant PETITION FOR REVIEW SUPREME COURT FOLLOWING DECISION BY COURT OF APPEAL FILED SECOND APPELLATE DISTRICT, DIVISION FOUR FEB 28 2013 Frank A. McGuire Clerk Deputy Jolene Larimore P.O. Box 3718 San Dimas, CA 91773 (909) 599-0848 State Bar #55829 Attorney for Petitioner RECEIVED FER 24 2013 CLERK SUPREME COURT P a d TOPICAL INDEX PAGE PETITION FOR REVIEW 1 ISSUES PRESENTED FOR REVIEW 2 REASONS FOR REVIEW 2 STATEMENTOF FACTS 3 ARGUMENT: I. THERE WAS NO GRAND THEFT PROVEN. 4 ll. MULTIPLE CONVICTIONS FOR OFFENSES COMMTITED PURSUANT TO GENERAL PLAN ARE PROHIBITED. 6 CONCLUSION 7 AUTHORITIES CITED People v. Bailey (1961) 55 Cal.2d 514 People v. Brooks (1985) 166 Cal.App.3d 24 People v. Garcia (2002) 28 Cal.4th 1166 People v. Guiton (1993)4 Cal.4th 1116 People v. Kronemyer (1987) 189 Cal.App.3d 314 il. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff and Respondent, VS. JEFFREY ALLEN WHITMER, Defendant and Appellant No. 2D 231038 LOS ANGELES GA079423 PETITION FOR REVIEW TO: HONORABLE CHIEF JUSTICE AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA: Petitioner and appellant JEFFREY ALLEN WHITMERpetitions this Court for review following the published decision of the Court of Appeal, Second Appellate District, Division Four, filed on January 28, 2013, affirming the convictions for 20 counts of grand theft of an automobile. (Pen. Code, § 487, subd. (d)(1).) Appellant was sentenced to consecutive sentences on 13 counts of grand theft. The appellate court reversed the convictionsforfalse financial statements and directed thetrial court to strike those convictions. A copyof the opinion is attached hereto as Appendix A. ISSUES PRESENTED FOR REVIEW Whetherpetitioner can lawfully be convicted of grand theft auto when the items shownto be involved were motorcycles and motorized dirt bikes? Whether People v. Bailey (1961) 55 Cal.2d 514 prohibited consecutive sentences on the 13 counts whenthe thefts were committed pursuantto a single scheme, and the prosecution persuadedthe jurorsto find the great taking enhancementonthe basis of a single scheme? (Pen. Code, § 12022.6) REASONS FOR REVIEW Review is necessary to makeclear that a penal statute means whatit says, and the trial court cannot change the meaning of a statute by wrongfully instructing the jury contrary to the plain meaningof the statute. In the context of statutory interpretation the main principle is that “we presumethe Legislature meant whatit said.” (People v. Garcia (2002) 28 Cal.4th 1166, 1172.) Review is necessary, as suggested by the appellate court, to clarify the holding in Bailey. STATEMENT OF FACTS Petitioner, while acting as manager for a motorcycle dealership, arrange d for what turnedoutto be the fraudulent sale of 20 motorcycles, motor ized dirt bikes, all terrain vehicles, and similar recreational vehicles. T he suspected sales were made between August and December 2009. On some days, multip le sales were made. In each of the transactions the loan was obtained though fraud or the credit card used was fraudulent. Petitioner maintained that he had no knowledge ofany fraud. The Information accused petitioner of multiple counts of “grand theft auto, in violation of Penal Code, section 487(d)(1), afelony.” It was alleged th at petitioner took an automobile. Eachof the stolen items were identified by a model and VIN number. However, as the evidence showed, there were no automobiles taken, but instead, motorcycles, off road vehicles, dirt bikes, or recreational vehicles were taken. The jury returned verdicts which read: “We, the jury, find the defendant, guilty of the crime of grand theft auto, in violation of Penal Codesection 487(d)(1), a felony, who onor about... did unlawfully take an automobile, (described by model and Vin number).” (CT 194) These are ineffective verdicts in that the evidence does not support the verdict. ARGUMENT I. THERE WAS NO GRAND THEFT AUTO PROVEN. The appellate court agreed that the offense defined in Penal Code, section 487(d)(1) did not include thetheft of motorcycles or other similar vehicles. (Opinion,p. 9) However, the appellate court concluded thatthe errors in the information, instructions, argument, and verdict forms were not prejudicial. However, as discussed in the Opening Brief, there were important reasons whythelegislature distinguished betweenthe taking of any item overa certain value and the taking of certain important items taken regardless of value. A motorcycle is not an automobile and thus the taking of a motorcycleis not entitled to the greater protection of the law which punishes the taking of the listed items as grandtheft. The error the lower court madein changing the jury instruction is a serious error whichthis court should not approve byfinding harmlesserror. The lower court changed the law tofit the form. “Weconcludethat the term ‘automobile’ does not encompassall motor vehicles.” (Opinion, p. 11.) This is not a technical defect in the verdict that can be corrected. Petitioner has been convicted of an offense not proven. The lowercourt instructed the jurors that the theft of an automobile or motor vehicle is grand theft. In light of the evidence whichclearly showed a motorcycle was taken and not an automobile,it is clear that the jurors followed the misstated instruction and foundpetitioner guilty of stealing a motor vehicle. 4 Evenif the appellate court’s informal amendment d octrine applied and the information could be considered to have been a mended,the lower court’s changingof the law to fit the form was fundamenta lerror. Contrary to the appellate court’s opinion, there was prosecutor ar gument,jury instructions, and verdict formsthat suggested to the jury that a convict ion for the charged offense of grand theft auto, hinged on the finding that the item s stolen were motor vehicles. In the absence of the erroneousinstruction, the jurors could not have returned a guilty verdict for taking motorcycles whenthe verdict form required a finding that an automobile was taken. (Opinion, 16) At no time did the prosecutor argue that petitioner was guilty because he took an item worth more than $400, the alternative theory of gui lt discussed by the appellate court. (Opinion,p. 16) Thus, the Guiton (People v . Guiton (1993) 4 Cal.4th 1116, rule allowingfor affirmanceof verdict, is not applicable, as there were not multiple theories proposed. Petitioner was clearly convicted on the basis of a wrong theory , the only theory presented to the jurors. Petitioner has been convicted of an offense on evidencethat clearly showed he did not committhatoffense. The g uilty verdicts must be reversed. I. MULTIPLE CONVICTIONS FOR OFFENSES COMMITTED PURSUANT TO GENERAL PLAN ARE PROHIBITED. The appellate court agreesthat this court in People v. Bailey, supra, held that several thefts individually eligible for treatment as grand theft nonetheless constitute a single crime if done according to “one plan.” (Opinion, p. 25.) However, the appellate court disagreed in the application of this holding to the facts of this case, and foundthatpetitioner committed separate grand thefts. (Opinion, p. 28) Petitioner urges this court to follow the application of the Bailey rule in People _v. Kronemyer (1987) 189 Cal.App.3d 314 and People v. Brooks (1985) 166 Cal.App.3d 24, and conclude that petitioner acted pursuant to one schemeto take as many vehicles pursuant to a similar plan as possible, and thus only one offense was committed, although committed on different dates and involved different transactions. CONCLUSION Petitioner therefore respectfully urges this court to grant review, and upon review, to find that the trial court erred in changing the lawinits instru ctions andto reverse the verdict as not being based on the evidence; and to clarify the Bailey holding andto find thatpetitioner committed but one offense. DATED:February 22, 2013 Respectfull: submitte d, Jolené Larimore P.O. Box 3718 San Dimas, CA 91773 (909) 599-0848 State Bar #55829 Attorney for Petitioner CERTIFICATE OF WORD COMPLI ANCE I certify that this Petition for Review contai ns 1419 words. Respectfully submitted, 7 Cue j ( bb. wy(abet? Ny aw Jolene Zarimore DATED: February 22, 2013 Attorney for Petitioner APPENDIX A CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA - SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, — Vv. JEFFREY ALLEN WHITMER, Defendant and Appellant. B231038 - (Los Angeles County Super. Ct. No. GA079423) _oJRT OF APP EAL- SECOND Ds eI 1D ~ an 28 2013 - Clerk JOSEPH ALANEOSERT ! — Deouty Clerk APPEAL from a judgmentofthe Superior Court ofLos Angeles County, Candace Beason, Judge. Reversed in part, affirmed in part, and remanded with directions. Jolene Larimore, under appointmentby 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 and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent. Appellant Jeffrey Allen Whitmer challenges his convictions on 20 counts of grand theft and 20 counts of making false financial statements. He contends he was unlawfully convicted of grand theft and making false financial statements; in addition, he maintainsthat his judgment of conviction must be reversed due to insufficiency of the evidence,instructionalerror, sentencing error and ineffective assistanceof counsel. Although wehold that grandtheft of an automobile does not encompass the theft of motorcycles and motorized dirt bikes, we determinethat appellant suffered no prejudice from the charging of grand theft of an automobile based on the taking of motorcycles, motorized dirt bikes, and related vehicles. We further conclude that he has shownreversible error only with respect to 14 counts of makingfalse financial statements. Wetherefore reverse his convictions under these counts, and otherwise affirm the judgment. In rejecting appellant’s contentions, we conclude that under Peoplev. Bailey (1961) 55 Cal.2d 514 (Bailey), a defendant may be convicted of multiple counts of grand theft based on separate anddistinct acts of grand theft committed pursuant to a single scheme. As other appellate courts have adopted a contrary interpretation of Bailey, we urge the Supreme Court to clarify the holding in Bailey. RELEVANT PROCEDURAL BACKGROUND On July 20, 2010, an information wasfiled, charging appellant with 21 counts of grand theft of an automobile (Pen. Code, § 487, subd. (d)(1)), 7 counts of making false financial statements (Pen. Code, § 532a), and 14 countsoftheft of access cards or account information (Pen. Code, § 484e, subd. (d).)! Accompanying the charges was an allegation that appellant took, damaged,or | 1 _All further statutory citations are to the Penal Code, unless otherwise indicated. destroyed property valued at more than $200,000 (§ 12022.6). Appellant pleaded. not guilty and denied the specialallegation. | At the prosecutor’s request, the trial court dismissed one countofgrand theft of an automobile and one count of makingfalse financial statements. After the presentation of evidence,the trial court amendedthe information to replace the charges of theft of access cardsor account information (§ 484e, subd. (d)) with charges ofmaking false financial statements (§ 532a). The jury found appellant guilty on all counts, as amended, and foundthespecial allegation to be true. The | trial court sentenced appellantto a total term of imprisonment of 12 years. In imposing the sentence, the court stayed punishment underall the counts ofmaking false financial statements (§ 654). FACTS A. Prosecution Evidence | 1. Overview The prosecution submitted evidencethat appellant, 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, appellant arranged fraudulent sales to fictitious buyers, using falsified financing agreements andcredit purchases, resulting in monetary losses to the dealership.2 2 Mor’s nameis stated in different waysin the record. For simplicity, we refer tohim as “Mor”or “Mordichi.” 2, Background Jerome Gilding owned Temple City PowerSports, a business located in San Gabriel that sold and serviced motorcycles, motorized dirt bikes, ATVs, andjet skis. Because Gilding devoted mostofhis time to dealerships he owned in Temecula and other locations, he employed a sales managerto operate the dealership, maintain its inventory, and supervise the salesstaff, including employees inits finance department. | | | Customers ofthe dealership negotiated purchases with salespersons. The dealership made sales to customers whoentered into financing agreements or paid with credit cards. In such cases, after the salesperson reached an agreement with the customer regarding an item and the manner of payment, the transaction was referred to the sales manager for approval. If approved, the transaction wassentto the dealership finance department, which collected the information necessary to processthe financing agreementor credit card sale. Whenthe dealership sold an item to a customer whofailed to make the loan payments or used a badcredit card, the dealership incurred a “charge back,”that is, took responsibility for the loss on the transaction. According to Gilding, to prevent charge backs, the dealership’s policy was to require customers to make purchases in person and to present two formsofidentification. | | Ordinarily, when credit card purchases were made, thecard was swiped through a credit card machine, which instantaneously sent information regarding the purchaseto the pertinent bank. An approvalor denial was received from the bank within a few seconds. In contrast, if the machine wasset for an “offline” or “forced” sale, the machine recorded the transaction but sent no information to the bank. As a result, no immediate credit approval or denial was generated; instead, information regarding the transaction was transmitted to the bank at the end ofthe business day. Gilding did not permit offline sales. Associated with each vehicle sold by the dealership is a document known as the “manufacturercertificate of origin” (MSO). The vehicle’s original MSO can be used to establishtitle to the vehicle in other states and countries. The dealership retained the original MSOafter a sale unless the vehicle was sold to an out-of-state purchaser or transferred to another dealer. The dealership had contractual obligations to several manufacturersnot to sell vehicles for exportation outside the United States. | In 2009, appellant was the dealership’s sales manager, and Alex Barrera was employed as a salesperson. Eric Van Hek workedin the financial department until August or September 2009, when he was replaced by Richard Carlos. In late August or early September 2009, Gilding told appellant not to deal with Mordichi Mor, whohad engagedin a fraudulent transaction at the dealership in 2008. 3. Offenses Carlos testified that he was a finance managerat the dealership forsix to eight months. He hadlittle prior experience with financial operations. According to Carlos, appellant ran the dealership and directed his activities. In the fall of 2009, Carlos often saw a person he knew as “Mordichi” talking to appellant in the dealership. After meeting with Mordichi, appellant directed Carlos to process sales transactions involving customers Carlos had never met, contrary to the dealership’s policy. Wheneverthe transaction involved acredit card, appellant told Carlos to process it as an offline sale. Carlos prepared the paperwork for eachtransaction and gave it to appellant, who returned the documents to him with the customer’s signature. Carlos heard appellant direct other employees to deliver the purchased vehicles to Mordichi’s home and obtain the customers’ signaturesthere. In December 2009, when Carlos received phonecalls from banks attempting to locate the customers, he broughtthe calls to the attention of appellant, who said 5 he wouldtake care of thern. After a fraud inquiry began, Carlos overheard appellant suggest to investigating police officers that appellant did not know Mor’s | full name. Later, Carlos saw appellant shredding some documents. Appellant directed Carlos notto place the shredded documentsin the dealership’s dumpster, but to dispose ofthem elsewhere. Angela Wilcox, a dealership employee,testified that during the fall of 2009, she saw appellant with Mor many timesin the dealership. At appellant’s request, she gave appellant original MSOsfrom the dealership’s files related to deals appellant arranged with Mor. Later, she overheard appellanttell police officers that he was unsure of Mor’s name, even though Morwasa well known customer whose name and address were in the dealership’s computer system. Afterward, Carlos told her that appellant had asked him to dispose of shredded documents off the dealership’s premises. | . Gilding testified that in mid-December 2009,a credit card companytold him that credit card usage had increasedat the dealership, and that he should expect charge backs. Heinitiated an inquiry that uncovered 20 potentially fraudulent sales of motorcycles, motorized dirt bikes, ATVs, and recreational vehicles at the dealership from August 4 to December8, 2009. Barrera wasthe salespersonin all the sales, each of which involved one of seven purported buyers. Noneofthe purported buyers was Mor. Thefirst two sales were processed by Van Hek, and the remaining sales were processed by Carlos. Fourteen of the transactions involved offline credit sales, and six involved financing agreements. The dealership incurred a charge back on each sale ranging from $9,100 to $21,479.80, resultingin losses exceeding $250,000. In addition, the original MSOsforthe vehicles in the dealership’s files had been replaced by copies, even though the transactions were notofthe type that required the dealership to transfer the original MSOto the purchaser. » Shortly after Gildingdiscovered the potentialfraud, Barrera stopped appearing for work. On December 15, 2009, Los Angeles County Sheriff's Department Detective David Swansoninterviewed appellant regarding the © potential fraud. Appellant described Mor as a person who “hung around”the dealership, but denied that Mor washis friend. Appellant further stated that Mor. had introduced the actual buyers to him and recommended them as customers. Later, El Monte Police Department Detective Armando Valenzuela determinedthat the identification information provided for the buyers on the sales documents wasfalse, and that the existence of the buyers could not be established. Healso discovered that several of the vehicles had been shippedtoIsrael. — On February 16, 2010, Detective Valenzuela, accompanied by El Monte Police Department Detective Brian Villa, interviewed appellant. Appellant initially stated that “somebody named Mordichai”hadreferred the purchasers, who appeared in personat the dealership. Whenthe detectives replied that they had information establishing that appellant personally knew Mor, he became agitated and asked, “Am I underarrest?” The detectives then arrested him. After receiving Miranda warnings,> appellant stated that Mor had “got[ten] the ball rolling” on the transactions, that Van Hek had taught him how to dooffline transactions, and that he had participated for“personal gain” because he faced “somebad timesat home economically.” Appellant also acknowledgedthat none ofthe purchasers cameto the dealership. 3 Miranda v. Arizona (1996) 384 U.S. 436. _ B. Defense Evidence Appellanttestified that he had only a professionalrelationship with Mor , whooften brokered transactionsat the dealership. Appellant denied t hat Gilding warned him notto do business with Mor, that he arranged the fraudulentsa les with Mor,or that he directed employeesto deliver the vehicles to Mor. He also d enied any knowledge that the sales were fraudulent when they weretransacte d. According to appellant, Carlos had primary responsibility for the financial aspects of the transactions. Appellant’s role in a transaction waslimite d to approving the salesperson’s initial agreement with the customer before it mov ed to a financial manager. If the customer chose to pay by credit card, the financial manager was responsible for collectingthe payment through the credit card machine;ifthe customerchoseto finance the purchase,the financial manager was responsible for obtaining the relevant documentation. In each case, the purchase documents were then transmitted to Gilding’s Temecula dealershipforfinal processing before they were returned to Temple City Power Sports. Appellant furthertestified that after the fraud was discovered,he told police officers that he was unsure of Mor’s name because people referred to Mor in different ways. Later, in February 2010, when appellant met with Detectives Valenzuela and Villa, Villa acted in an insulting and threatening manner. Appellant denied having admitted any misconduct during the interview.4 Ryan Morgantestified that in the fall of 2009, appellant directed him to deliver vehicles to the home of someone he knew as “Mordichi.” In signing for the deliveries, Mordichi used the nameofthe person identified in the contract. 4 Appellant acknowledgedtelling the detectives that the purchasers had personally appeared in the dealership,buttestified that in saying this he was relying on information from other people. Stephen Valdez, a dealership salesperson, testified that he accompanied Morgan during one such delivery. DISCUSSION Appellant contends (1) that he was unlawfully convicted of grand theft of an automobile, (2) that he was improperly convicted of multiple counts of grand theft, (3) that he was unlawfully convicted of making false financial statements,(4) that ‘there is insufficient evidence to support his convictions,(5) that the trial court erred in failing to instruct on aidingand abetting liability, and (6) that he received ineffective assistance of counsel. As explained below,he has established reversible error only with respect to 14 of his 20 convictions for making false financial statements. A. Grand Theft ofan Automobile Appellant contends he was unlawfully convicted of grand theft of an automobile because that crime does not encompass motorcycles, off road dirt bikes, ATVs, and otherrecreational vehicles. He thus arguesthat the information improperly charged him with multiple instances of the crime, that the jury received erroneousinstructions regarding it, and that the jury’s verdicts fail for want of sufficient evidence. As explained below, we agreethat the crimeis limited to the theft of automobiles, but conclude that the errors in the information, instructions, and verdict forms were not prejudicial. 1. Grand Theft Ourinquiry requires us to examine the statutory scheme regarding grand theft. Generally, “thecrime oftheft is divided into two degrees, grand theft and petty theft. (§ 486.) Grand theft, therefore, is not a separate offense, but simply the higher degree ofthe crime of theft. [{] Section 48 7 defines. grand theft to include theft of property worth more than $400 (subd. (a)) and the theft of an automobile (subd. (d)[(1)}).” (Peoplev. Ortega (1998) 1 9 Cal.4th 686, 696,italics omitted, disapproved on another ground in People v. Ree d (2006) 38 Cal.4th 1224, 1228.) Underthestatute, theft of an automobile constitutes gr and theft regardless ofits value. (People v. Thomas (1974) 43 Cal.App.3d 862, 870.) 2. Underlying Proceedings The information initially charged appellant with 21 counts of gr and theft of an automobile (§ 487, subd. (d)(1)), one ofwhich waslater dismissed at the beginningofthe trial. During the trial, the prosecution presente d evidence that appellant orchestratedthe theft of 20 motorcycles, motorized dirt bike s, ATVs, and other recreational vehicles, each ofwhich was valued at no less t han $9,100. In instructing the jury, the trial court stated that appellant was charged wi th grandtheft in violation of section 487. The court further told the jury: “ Ifyou ~ conclude that the defendant committed a theft, you must decide whe therthe crime was grand theft or petty theft. [{] The defendant committed grand theft ifh e stole property worth more than $400. Theft of an automobile or a motor vehicle is grand theft.” (Italics added.) Later, during closing arguments,the prosecuto r statedthat each stolen vehicle was the subject of a “[section] 487 charge” or “orand theft auto” charge, and maintained that the term “auto” encompassed motor vehicles, including motorcycles and ATVs. | The verdict form for each grand theft count asked the jury to determine whether appellant was guilty of “grand theft auto, in violation of . . .[s]ection 487[, subdivision] (d)(1)” regarding a specified vehicle. (Upper case omitted.) 10 _ Therecord discloses no objection by appellantto the instructions, prosecutor’s argument, or verdict forms. The jury found appellant guilty on all counts, and also foundthat he had taken property worth more than $200,000. 3. “Automobile” The initial question we confront is whether the term “automobile,” as used in subdivision (d)(1) of section 487, is equivalent to the term “motor vehicle,” as the instructions and the prosecutor informed the jury. We conclude that the term “automobile” does not encompassall motor vehicles. | Because our research has disclosed no decision addressing the question before us, we confrontan issue ofstatutory interpretation. “‘In construing a ‘statute, our task is to determine the Legislature’s intent and purpose for the enactment. [Citation.] We look first to the plain meaningofthe statutory language, giving the wordstheir usual and ordinary meaning. [Citation.] If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant whatit said. [Citation.] ...’ [Citations.] We examinethe statutory language in the context in which it appears, and adopt the construction that best harmonizesthe statute internally and with related statutes. [Citations.]” (People v. Palmer (2005) 133 Cal.App.4th 1 141, 1149, quoting People v. Garcia (2002) 28 Cal.4th 1166, 1172.) In addition, we may examinethestatute’s legislative history. (People v. Palmer, supra, 133 Cal.App.4th at p. 1149.) The term “automobile,” as commonly understood, does not encompassall motor vehicles. Theterm is ordinarily defined to mean particular type of motor vehicle, namely, a four-wheeled self-propelled vehicle intended to transport people. (Webster’s 3d New Internat. Dict. (2002) p. 148 [‘a us[ually] 4-wheeled automotive vehicle designed for passengertransportation on streets and roadways and commonly propelled by an internal-combustion engineusing a volatile fuel (as 1] gasoline)’]; Merriam-Webster’s Collegiate Dict.( 1995) p. 78 [‘‘a.. . four-wheeled automotive vehicle designed for passenger tra nsportation”].) Nor does subdivision (d)(1) of section 487 disclos e any legislativeintent to attach a broader meaningto the term. Generally, u nder the principle of expressio unius est exclusio alterius, “‘the expression of certain t hings in a statute necessarily involves exclusion of other things not expressed .. * [Citation.|” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987 ) 43 Cal.3d 1379, 1391, fn. 13). Here, subdivision (d)(1) of section 487 states that g rand theft is committed when “the property taken is any of the following: [{] . - - A n automobile, horse, mare, gelding, any bovine animal, any caprine animal, mule ,jack, jenny, sheep, lamb, hog, sow,boar, gilt, barrow, or pig.” It is well establ ished that the Legislature’s intent regarding this provision wasto designate theft o f the enumerated items as grand theft regardless of their value. (People v. Thom as, supra, 43 Cal.App.3d at p. 870.) Because the items following the term “auto mobile” are carefully and precisely specified, the provision exhibits nointent to use the term “automobile” broadly to mean “motorvehicle,” for purposes of provi ng grand theft withouta demonstration of the stolen item’s value. Our conclusionfinds additional support in the le gislative history of section 487, subdivision (d)(1), and related statutes. Asenact ed in the 19th Century, the predecessor of section 487, subdivision (d)(1), exe mpted only animals from the proof of value requirement. (See People v. Townsley ( 1870) 39 Cal. 405, 406.) In 1905, the Legislature enacted former section 499b , the so-called “‘j oy-rid[ing] statute,” which established as a crime the act of dr iving or temporarily using “any automobile, bicycle, motorcycle or other vehicle” wi thout the owner’s consent. (Stats. 1905, ch. 190, § 1, pp. 184-185, italics added; Peop le v. Thomas (1962) 58 Cal.2d 121, 125, overruled on another ground in People v. Barrick (1982) 33 Cal.3d 115, 135, fn. 9.) In 1913, the Legislature created a si milar offense in 12 enacting the statutory predecessor ofVehicle Code section 10851, which established as a crimethe act of driving any “motor vehicle” without the owner’s consent, and expressly defined “‘automobile’” to mean “all motor vehicles excepting motorcycles.” (Stats. 1913, ch. 326, § 1, p. 639,italics added.) Not until 1927 did the Legislature amendthe predecessor of section 487, subdivision (d)(1), to include “automobile[s]” among the enumerated items. (Stats. 1927, ch. 619, § 4, p. 1047.) Later, in 1996, the Legislature amendedsection 499b to eliminate from it all provisions duplicative of Vehicle Code section 1085 l, which addresses the driving or taking of a “vehicle.” (Stats. 1996, ch. 660, §§ 1-3, pp. 3669-3670.) Under the Vehicle Code, the term “‘vehicle’”is defined broadly to mean ‘‘a device by which any person or property may be propelled, moved,or | drawn upon a highway, excepting a device moved exclusively by human poweror used exclusively uponstationary rails or tracks.” (Veh. Code, § 670.) In view ofthis history, the term “automobile”in section 487, subdivision (d)(1), cannot be regarded as equivalent to “motor vehicle.” The Legislature, in establishing the related crimes, used the term “automobile” in a mannerthat excluded-- at a minimum -- motoreycles. Furthermore, after amendingthe predecessorof section 487, subdivision (d)(1) to include the term “automobile,” the Legislature has undertaken no action suggesting that the term encompasses motorcycles or is equivalent to the broad term “vehicle,” as defined in the Vehicle Code. | | | Appellant was thus improperly charged with grandtheft of an automobile under subdivision (d)(1) of section 487, as the charges wereclearly erroneousto 13 the extent they involved motorcyclesor dirt bikes.5. However,for the reasons | explained below,it is unnecessary for us to determine the full extentof the chargingerror, as appellant suffered no prejudice from it. 4. Grand Theft ofProperty Exceeding $400 in Value In view of the trial proceedings, we further conclude that appellant was properly convicted of a different type of grand theft under subdivision (a) of | section 487, that is, the theft of property worth more than $400. a. Informal Amendmentofthe Information To the extent appellant argues thathe lacked notice that he was charged with grandtheft under subdivision (a) of section 487, his contention fails in light of the so-called “informal amendment doctrine,” which constitutes a judicial recognition that an information may be amended without written alterations to it. (Peoplev. Sandoval(2006) 140 Cal.App.4th 111, 133 (Sandoval).). Generally, the purpose of to provide the accused with reasonable notice of theceean accusatory pleadingis charges.’” (Sandoval, supra, 140 Cal.App.4th at p. 132, quoting People v. Ruiloba (2005) 131 Cal.App.4th 674, 689-690.) Nonetheless, the Penal Code permits — accusatory pleadings to be amendedat any stage of the proceedings “for any defect or insufficiency” (§ 1009), and bars reversal of a criminal judgment “by reason of any defect or imperfection in matter of form which doesnot prejudice a substantial right of the defendant uponthe merits” (§ 960). In view ofthese provisions, “[t]he proceedings in the trial court may constitute an informal amendmentofthe 5 Wedonot address or decide whether the charges were erroneous with respectto _ the ATVsandother recreational vehicles because the record containslittle or no evidence regarding their design and function. 14 accusatory pleading, whenthe defendant’s conduct or circumstances created by him amountto an implied consent to the amendment.” (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings, § 213, p. 418.)6 An instructive application ofthe doctrine is found in People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fh. 3. There, the information charged the defendant with attempted murderand assault with a deadly weapon. (Toro, supra, 47 Cal.3d at p. 972.) In-addition to these offenses, the jury was instructed regarding the offense ofbattery with serious bodily injury, which the instructions and verdict forms erroneously described as a lesser included offense of attempted murder. (/d. at p- 973.) The defendant’s counsel raised no objection to the instructions and verdict form regarding battery with serious bodily injury, or to the jury’s consideration of the offense. (/d. at pp. 977-978.) Noting that such failure to object may be ““““regarded as an implied consentto treat the information as having been amended to include the offense on which the sentence was imposed,”’” our Supreme Court concluded that the defendant had impliedly consented to the submission of the charge to the jury, and had forfeited any contention of error. Ud. at pp. 976-977, quoting People v. Francis (1969) 71 Cal.2d 66, 75.) Here, the jury was instructed that appellant could be convicted of grandtheft under section 487 if it found that “he stole property worth more than $400” or took “an automobile or a motor vehicle.” Although the prosecutorreferred to the 6 Asexplained in Sandoval, “[t]he informal amendmentdoctrine makesit clear that California law does not attach any talismanic significance to the existence of a written information. Underthis doctrine, a defendant’s conduct mayeffect an informal amendmentofan information without the People having formally filed a written amendmentto the information.” (Sandoval, supra, 140 Cal.App.4th at p. 133.) 15 _ “section 487”offense as “rand theft auto,” and theverdict forms cited subdivision (d)(1) of section 487, nothing in the prosecutor’s argumentor the verdict forms suggested that the propriety of a conviction for grand theft hinged on the | classification of the stolen property as an automobile or motor vehicle. Rather, the instructions informedthejury that it could convict appellant under each countof - grand theft if he stole property exceeding $400. Theinstructionsthuseffectively presented the jury with two distinct theories of grand theft. Because appellant never raised any objection to the instructionsbeforethetrial court, he impliedly consentedto the submission of both theories to the jury.” b. No Reversal Based on Erroneous Theory The remaining question concerning the charges against appellant is whether the presentation of a legally erroneous theory of grandtheft to the jury requires a reversal of the grand theft convictions. The error here is subject to the rule propounded in People v. Guiton (1993) 4 Cal.4th 1116 and in People v. Green (1980) 27 Cal.3d 1, reversed on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 234 (see also People v. Hall (1986) 41 Cal.3d 826, 834). Under the Guiton-Greenrule, “if a jury is presented with multiple theories supporting conviction on a single charge and on review one theory is found legally defective, that is, the theory does not present a legally sufficient basis for conviction, reversal is required unless substantial reasons exist to find that the verdict was based on a legally valid theory.” (People v. Llamas (1997) 51 Cal.App.4th 1729, 1740.) However, “[a]n instructionalerror presenting the jurywith a legally invalid theory 7 Werecognize that an amendmentto the information is improper when no evidence supporting the amended charges waspresented at the preliminary hearing. (People v. Tallman (1945) 27 Cal.2d 209, 213.) Here, however, evidence that the value of each pertinent vehicle exceeded $400 was presented at appellant’s preliminary hearing. 16 of guilt does not require reversal, J. if other parts of the verdict demonstrate that the jury necessarily found the defendantguilty on a proper theory.” (Peoplev. Pulido (1997) 15 Cal.4th 713, 727.) Underthe rule, we will reverse unlessit is. clear beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (People v. Chun (2009) 45 Cal.4th 1172, 1201.) - | Here, the record demonstrates thatthe jury necessarily found appellant guilty undera legally correct theory. In connection with the 20 grandtheft counts,the prosecutor presented evidenceas to the value of each vehicle, including that no - vehicle was valuedat less than $9,100. Asthis evidence was never challenged or disputed attrial, no rational jury could have rejected it. (People v. Nicholson (2004) 123 Cal.App.4th 823, 833.) Accordingly, in convicting appellant under the grand theft counts, the jury could not have determined that appellant took the vehicles without concluding that each vehicle was worth more than $400. Furthermore, in finding appellant guilty on all counts, the jury madea special finding that he had taken property worth more than $200,000. As no single vehicle was shown to be worth more than $21,479.80 -- the maximum value attributed to the most expensive vehicle -- the jury’s finding necessarily reflectedits determination that each of the vehicles was worth morethan $400. (See Peoplev. Guiton, supra, 4 Cal.4th at p. 1131 [stating that other portionsofverdict may show that jury necessarily found defendant guilty on a proper theory].) We therefore conclude that appellant has shown no reversible error, despite the defects in the information, prosecutor’s closing argument, and verdict forms.8 8 Wealso reject appellant’s related contention that his counsel rendered ineffective assistance during the trial by failing to object to (1) the defects in the information and verdict forms, (2) the prosecutor’s closing argument, and (3) the absence of evidence that automobiles had beentaken. To establish ineffective assistance of counsel, appellant must showthat“there is a ‘reasonable probability that, but for counsel’s unprofessional (Fn. continued on next page.) ' 17 B. Multiple Counts ofGrand‘Theft Appellant contends he was erroneously convicted of multiple counts of grand theft undera rule enunciated by our Supreme Court in Bailey, supra, 55 Cal.2d 514. The rule concerns the circumstances under which individualthefts of property or money exceeding the value required for grand theft constitute a single offense or multiple offenses. As explained below, identifying the holding in Bailey regarding the aggregation of grand thefts presents a difficult question of interpretation. We conclude that Bailey supports appellant’s conviction for multiple counts of grandtheft. 1. Governing Principles | The central issue before us concerns the holding or “ratio decidendi”in Bailey regarding the propriety of multiple grand theft convictions. (United Steelworkers ofAmericav. Board ofEducation (1984) 162 Cal.App.3d 823, 834.) “(The] ratio decidendiis the principle or rule which constitutes the basis of the decision andcreates binding precedent, while dictum is a general argumentor observation unnecessary to the decision which has no force as precedent. [Citation].” (Ubid.) Identifying Bailey’s holding is critical, as a dictum of the Supreme Court is not controlling on appellate courts, althoughit “carries persuasive weight and should be followed where it demonstrates a thorough analysis of the issue or reflects compelling logic.” (Smith.v. County ofLos Angeles errors, the result of the proceeding would have been different, A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Jennings (1991) 53 Cal.3d 334, 357.) For the reasons discussed above,there was no meritorious basis for denying an express request to amendthe information to replace the chargesof grand theft of an automobile with grand theft of property exceeding $400, as ample evidence wasoffered at trial to support the latter charges. Accordingly, had appellant’s counsel raised the objections in question, there would have (Fn. continued on next page.) 18 (1989) 214 Cal.App.3d 266, 297.) Furthermore,dicta of the Supreme Court cannot overrule prior Supreme Court holdings, which remain binding on lowercourts “notwithstanding the dicta. (Trope v. Katz (1995) 11 Cal.4th 274, 286-287.) Generally, “[t]o determine the precedential value of a statementin an opinion, the language ofthat statement must be compared with the facts of the case and the issues raised. Only statements necessary to the decision are binding precedents; explanatory observationsare not binding precedent. [Citations.]” (Western Landscape Construction v. Bank ofAmerica (1997) 58 Cal.App.4th 57, 61.) Nonetheless, “it is often difficult to draw hard lines between holdings and dicta. [Citation.] The basic formulais to take accountoffacts treated by the judge as material and determine whether the contested opinion is based upon them. [Citation.]” (United Steelworkers ofAmericav. Board ofEducation, supra, 162 Cal.App.3d at p. 834.) | Our inquiry follows established principles. Generally, “it is necessary to read the language of an opinionin the light of its facts and the issuesraised, in order to determine which statements of law were necessary to the decision, and therefore binding precedent, and which were general observations unnecessary to the decision.” (Fireman’s Fund Ins. Co.v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1301.) Furthermore, when questions about an opinion’s import arise, the opinion “should receive a reasonable interpretation [citation] and an interpretation whichreflects the circumstances under which it was rendered [citation]” (Youngv. Metropolitan Life Ins. Co. (1971) 20 Cal.App.3d 777, 782), and its statements should be considered in context (see Pullman Co. v. Industrial Ace. Com. (1946) 28 Cal.2d 379, 388). beenno material changein thetrial’s outcome. 19 2. Bailey In Bailey, a womanreceiving welfare payments invited a manto live with her in a marital or quasi-marital relationship, but told the welfare agencythat he was merely her tenant to ensure she continuedto receive the payments. (Bailey, supra, 55 Cal.2d at pp. 515-516.) While the pair cohabited, the womanreceived — numerous welfare payments, each of which wasless than $200, but which totaled more than $200. (id. at p. 518.) She was charged with a single count of grand theft by false pretenses under the predecessor of section 487, subdivision(a), which thendefined grandtheft to include the taking of money exceeding $200. (Bailey, supra, at p. 518.) After receiving an instruction that the womancould be convicted of grandthefts if “several acts oftaking [were] done pursuant to an initial design to obtain from the ownerproperty having a value exceeding $200,” the jury found her guilty as charged. (/d. at pp. 515, 518.) Before the Supreme Court, the woman contendedthat the jury was misinstructed, and that there was insufficient evidence to support her conviction. (Bailey, supra, 55 Cal.2d at pp. 518-519.) In rejecting her contentions and affirming the conviction, the court placed special emphasis on three appellate court decisions, namely, People v.Robertson (1959) 167 Cal.App.2d 571 (Robertson), Dawson v. Superior Court (1956) 138 Cal.App.2d 685 (Dawson), and People v. Lima (1954) 127 Cal.App.2d 29 (Lima). Those cases involved defendants who had used a misrepresentation to commit a series of petty thefts from victim,thereby acquiring property or money cumulatively exceeding the amount necessary to qualify as grand theft, which was then $200. For example, in Robertson, the defendant was charged with three counts of grand theft after he established credit at three separate stores using false information, and then charged numerousitems on different dates totaling more than $200 in value at eachstore. (Robertson, supra, 167 Cal.App.2d at pp. 574-575, 576-578.) Similarly, in Dawson, the 20 defendant was charged with grand theft because she secured more than $200 in welfare payments overa period of time by repeatedly misrepresenting that she had no income. (Dawson, 138 Cal.App.2d at pp. 686-687.) “Andin Lima, the defendant was charged with grandtheft for obtaining overpayments from a grape buyer culmulatively exceeding $200 by arranging for a weighmaster to misweigh multiple deliveries of the defendant’s grapes. (Lima, supra, 127 Cal.App.2d at pp. 30-31.) | oe | In each case, the appellate court affirmed the propriety of agpregating petty thefts for purposes of charging a count of grand theft, relying on the principle that “