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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Thomas INGRAM, Defendant and Appellant.

No. D027853.

Decided: July 09, 1998

Deanna F. Lamb, under appointment by the Court of Appeal, Santa Clara, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, Thomas Ingram was convicted of petty theft with a prior theft conviction (Pen.Code,2 §§ 484/666) and commercial burglary (§ 459).   In a separate proceeding, the trial court found Ingram had three serious/violent prior felony convictions or “strikes” (§ 667, subds. (b)-(i)) and had served three prior prison terms (§ 667.5, subd. (b)).

The trial court sentenced Ingram to state prison for 25 years to life under the Three Strikes law on the petty theft with a prior count.   The sentence on the burglary count was stayed pursuant to section 654, and the prior prison term enhancements were stricken.

Ingram appeals, contending it was error to (1) allow evidence of his drug usage to show a motive for his current crimes, (2) deny his section 1118.1 motion to dismiss the petty theft charge because of insufficient evidence, and (3) not instruct on attempted theft by false pretense or larceny by trick or device.   Ingram also contends the court erroneously found he had served three prior prison terms rather than two.   He also challenges the instruction on reasonable doubt.


A. The Instant Crimes

On August 8, 1996, between 12:40 and 12:45 p.m., Ingram was observed in the men's sportswear department at Nordstrom Rack by Charles Harris, a loss prevention agent for the store.   Harris noted Ingram was carrying a white bag from Saks Fifth Avenue, which at that time was no longer in business in San Diego.

Ingram selected a pair of pants and went to the refund counter.   Harris saw Ingram put the pants in his bag when the clerk turned her back.   Later, Ingram took the pants partially out of the bag and removed the price sticker from the waistband.

As Ingram was waiting in line to return the pants, Harris telephoned the clerk, Alexandria Jacques, and instructed her to accept Ingram's return and make sure he signed the return documents.   Harris also telephoned his colleague, Thomas Walsh, and asked him to come to the floor and assist him.

Harris then stood in the return line;  he was behind Ingram, and there was one person between them.   Harris heard Ingram tell Jacques that he had received the pants as a gift from his sister and the size was wrong.   Ingram wanted a cash refund.   Jacques telephoned a sales clerk for a price check, and Ingram disagreed with the quoted price, saying he believed the pants sold for a higher price.   Ingram presented identification, and Jacques had him sign a return receipt.

Ingram put the cash and receipt in his pocket and began to walk away.   Harris approached Ingram and showed him his security badge.   Walsh walked up behind Ingram, and the two loss prevention agents escorted Ingram to their office.   When the agents asked Ingram for his return receipt, Ingram took it out of his pocket, ripped it up and swallowed it.   The agents handcuffed Ingram and called the police.

Ingram had no checks, credit cards or cash other than the $26.99 he had received in the return transaction with Jacques.

B. Ingram's Admission of Prior Bad Acts

In the spring of 1996, Ingram asked Kathy Iverson, a former girlfriend, if she would accompany him to Nordstrom to obtain cash to buy drugs.   Ingram told Iverson he would get an item, usually clothing, and return it for cash;  he did not need a receipt.   In this manner, Ingram said he would net a couple hundred dollars.   Ingram would save store bags to use in his scheme.

Iverson declined to go with Ingram that day.   A couple of weeks later, after getting in a fight with Ingram, Iverson telephoned Nordstrom and reported Ingram's return scam.

C. Ingram's Prior Activity at Nordstrom

On June 24, 1996, Ingram attempted to return a sweater at the Horton Plaza Nordstrom.   Ingram did not have a receipt, and the price ticket on the sweater did not have a “shank code sticker,” which is part of the store's inventory control system and proof that an item had been sold.  (The shank code sticker is generated at the time of a sale and placed on the back of the price ticket.)   David Dicarlo, the manager in charge that day, gave Ingram a cash refund, but warned Ingram that in the future he would have to have identification and a receipt, and the tags would have to be attached to the item.

On July 14, 1996, Ingram attempted to return a tie without a receipt or price tag at the Horton Plaza Nordstrom.   Ingram was upset when Carol Julian, the manager in charge that day, refused the return.   Ingram pointed out he had identification and he always returned items without a receipt.  (Nordstrom's policy is to give cash refunds without a receipt.)

On July 21, 1996, Ingram attempted to return items at the Nordstrom in La Jolla;  the items had price tickets but no shank code stickers.   Terry Ota, the acting manager of the store, said the items appeared to have been taken from a display.   When the return was refused, Ingram said he always returned items at the store without a receipt.   Ingram went to the customer service office and complained.


I. * 

II. Petty Theft Charge

With respect to the petty theft charge, Ingram mounts a two-prong challenge:  (1) it was error not to grant his section 1118.1 motion to dismiss the count, and (2) the court did not properly instruct on theft because it failed to instruct on the various applicable theories of theft.   For the reasons stated below, we find the section 1118.1 motion should have been granted;  accordingly, it is not necessary to address the instructional issue.

A. Proceedings Below

After the close of the prosecution's case-in-chief, Ingram's counsel moved for a judgment of acquittal on the petty theft charge on the basis of People v. Lorenzo (1976) 64 Cal.App.3d Supp. 43, 135 Cal.Rptr. 337.   Up to this point, the prosecutor was proceeding under a theory of theft by false pretenses, namely that the sales clerk gave Ingram a refund based on his false representation.   The trial court agreed with defense counsel that an element of theft by false pretenses-actual reliance upon Ingram's misrepresentations-was missing, and consequently, there was only evidence of an attempt of theft by false pretenses.   However, the court denied the motion for judgment of acquittal because it found there was sufficient evidence that Ingram had committed theft by larceny.   The court reasoned that by taking the pants Ingram acted with the intent to steal them for the money and in the alternative for the pants themselves.   Hence, under the court's rationale, if Nordstrom did not give him the cash refund, Ingram's plan was to leave the store with the pants.   The prosecutor adopted this theory in his closing argument.

B. The Law of Theft

Section 484, subdivision (a), provides in pertinent part:

“Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, ․ 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, ․ is guilty of theft․

Section 484, as amended in 1927, redefined theft “by consolidating within such definition various ‘criminal acquisitive techniques' which were the subject of different common-law-defined larcenous offenses.”  (People v. Darling (1964) 230 Cal.App.2d 615, 618, 41 Cal.Rptr. 219.)   This redefinition did not, however, change the elements of the included theft offenses.  (Ibid.) “[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 (1954) 42 Cal.2d 246, 258, 267 P.2d 271.)

At issue here are two forms of theft-larceny and theft false pretenses-because these were the two theories advanced below.

 Larceny requires the taking of personal property from the owner's possession without consent;  asportation of that property;  and an intent, without claim of right, to deprive the owner of the property wholly and permanently.  (Callan v. Superior Court (1962) 204 Cal.App.2d 652, 667, 22 Cal.Rptr. 508.)   For our purposes, two of these elements are particularly relevant:  taking of property without the owner's consent;  and intent to steal without a claim of right.

 The common law crime of larceny was said to require a “ ‘trespass in the taking.’ ”  (2 LaFave & Scott, Substantive Criminal Law (1986) § 8.1, p. 328.)   If the owner of the property actually consents to the defendant's taking his property, there is no trespass in the taking and hence no larceny.   Larceny by trick or device provides for an exception to the no-consent requirement for common-law larceny.   Larceny by trick or device occurs when the defendant obtains possession of (but not title to) another's property by fraud or trickery;  fraud vitiates consent and takes the place of the trespass.  (See People v. Edwards (1925) 72 Cal.App. 102, 113, 236 P. 944, disapproved on another ground in In re Estrada (1965) 63 Cal.2d 740, 748, 48 Cal.Rptr. 172, 408 P.2d 948.)   Larceny by trick or device is a form of larceny and not a separate crime.  (2 LaFave & Scott, op. cit. supra, §§ 8.1, p. 330, 8.2, p. 339, fn. 35.)

However, if one, through false representations and with the intent to steal, obtains both possession and title to property there cannot be common-law larceny.   The statutory crime of theft by false pretenses was created to fill the gap.  (2 LaFave & Scott, op. cit. supra, § 8.7, p. 383;  2 Witkin & Epstein, Cal.Crim. Law (2d ed.   1988) § 602, pp. 680-681.)

 Theft by false pretenses occurs where the defendant makes a false representation with the intent to defraud the owner of his or her property, and the owner is in fact defrauded.  (People v. Ashley, supra, 42 Cal.2d at p. 259, 267 P.2d 271.)  “In other words, as in any other case of fraud, the injured party must have been induced to part with his property in reliance on the false representation.”  (People v. Lorenzo, supra, 64 Cal.App.3d Supp. at p. 46, 135 Cal.Rptr. 337.)

 “The distinction between larceny and obtaining money or property by false pretenses turns on a question of title.”  (Callan v. Superior Court, supra, 204 Cal.App.2d at p. 668, 22 Cal.Rptr. 508.)   The defendant who obtains property by larceny does not obtain title, while the defendant who obtains property by false pretenses does obtain title.  (Perkins & Boyce, Criminal Law (3d ed.   1982) False Pretenses, § 4.C.1., pp. 374-375, 389.)   As explained by our Supreme Court:

“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.”  (People v. Ashley, supra, 42 Cal.2d at p. 258, 267 P.2d 271, italics added.)

In People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43, 135 Cal.Rptr. 337, the manager of a market saw the defendant switch price tags from one kind of glove to another, switch price tags on chickens, pay for the chickens and gloves, then go to the parking lot where the manager arrested him.  (Id. at p. 45, 135 Cal.Rptr. 337.)   Found in the defendant's possession were a pair of gloves and two chickens with tags showing prices lower than the correct ones.  (Id. at pp. 45-46, 135 Cal.Rptr. 337.)   The reviewing court reduced the theft conviction to attempted theft, noting only the manager's alertness prevented consummation of the crime.  (Id. at pp. 45, 47-48, 135 Cal.Rptr. 337.)   The court also observed that the defendant did not commit theft by false pretenses because the manager failed to rely on his conduct;  he was aware the defendant had switched price tags and allowed him to consummate his scheme in order to arrest him.  (Id. at p. 47, 135 Cal.Rptr. 337.) 3

In City of Kansas City v. Fritz (Mo.App.1980) 607 S.W.2d 837, the defendant entered a department store, tore open a package of curtains, then took the package to a clerk and asked for a refund.   The clerk game him a refund voucher and told him to cash it at the customer accommodation desk.   Store employees, who had watched the defendant and were aware of what he had done, watched him exchange the voucher for cash, and then arrested him.  (Id. at p. 838.)   The reviewing court reversed the conviction of obtaining money by false pretenses, noting the store had not relied on his representation that he had purchased the curtains since the employees knew he had simply removed them from the shelf.  (Id. at p. 839, citing People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43, 135 Cal.Rptr. 337.)

C. Analysis

 On appeal, the standard of review for a motion for judgment of acquittal under section 1118.1 is the substantial evidence test.  (People v. Cuevas (1995) 12 Cal.4th 252, 261, 48 Cal.Rptr.2d 135, 906 P.2d 1290.)   We review the record in the light most favorable to the result below to determine whether it discloses substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.   (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)

 In ruling on the section 1118.1 motion, the trial court correctly found there was no evidence Nordstrom relied upon Ingram's false representation.   This is fatal to a cause of action of theft based on a theory of false pretenses.  (See People v. Lorenzo, supra, 64 Cal.App.3d Supp. at p. 47, 135 Cal.Rptr. 337.) 4

 However, the trial court's reasoning that there was sufficient evidence to go to the jury on a theory of ordinary larceny was erroneous.   Nordstrom, knowing in advance that Ingram's representations were going to be false, willingly gave him the refund money.   This in effect was consent to the taking, which defeats common-law larceny.   Nor can Ingram's actions amount to the form of larceny known as larceny by trick or device because Nordstrom, through its agents, knew Ingram's misrepresentations were false and did not give him the refund on the basis of those misrepresentations.   In other words, because Ingram's fraud was ineffectual, Nordstrom's consent was not vitiated.

 Next we address the theory-propounded by the trial court and adopted by the prosecution-that Ingram's actions amounted to larceny because he had the intent to either steal money by getting a refund or steal the pants if the cash return was denied.   We consider this theory even though it is somewhat speculative with respect to Ingram's state of mind.   In any event, there was insufficient evidence to support a larceny conviction under this theory, because Ingram did not walk away with the pants.   In other words, the crime of stealing the pants was not completed;  at most, the court's hypothesis would support an attempted theft by larceny.

In sum, the evidence was insufficient to support the theft charge on theories of common-law larceny, larceny by trick or device, or theft by false pretenses.   The trial court should have granted Ingram's motion for judgment of acquittal on the petty theft charge.5



The conviction of petty theft with a prior is reversed, and the finding that Ingram served a third prior prison term is reversed.   We further order the trial court to lift the section 654 stay on the burglary sentence so that the defendant may serve the 25-year-to-life sentence on that conviction.   The trial court is directed to amend the abstract of judgment in accordance with these directions and orders, and forward a copy of the amended abstract of judgment to the Department of Corrections.   In all other respects, the judgment is affirmed.


FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote 1, ante.

3.   The Attorney General argues we should reject People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43, 135 Cal.Rptr. 337 because it mistakenly imputed the manager's knowledge to the store.   We disagree.

4.   Under the evidence presented, Ingram properly could have been charged with attempted theft by false pretenses, but the evidence does not support theft by false pretenses because Nordstrom, through its agents, did not rely on Ingram's misrepresentations.

5.   However, after granting the section 1118.1 motion, the trial court could have allowed the prosecution to amend the information to add the lesser-included offense of attempted theft under a theory of theft by false pretenses.  (See fn. 4, ante.)   Ingram intended to commit this crime, and, but for the knowledge of the store employees, would have succeeded.   Under section 1181, subdivision (6), we have the authority to reduce Ingram's conviction to attempted petty theft.   We will not do so because the trial court did not instruct the jury on a theory of theft false pretenses.   We also conclude it would neither serve the interests of justice nor be in the interests of judicial economy to remand for a new trial on attempted petty theft in light of the burglary conviction, which is unassailable.  (See DISPOSITION, post.)

FOOTNOTE.   See footnote 1, ante.

HALLER, Presiding Justice.

BENKE, Acting P.J., and HUFFMAN, J., concur.

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