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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frederick B. RICHMOND, Defendant and Appellant.

No. A070221.

Decided: March 25, 1996

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Martin S. Kaye and Sharon Rosen Leib, Deputy Attorneys General, San Francisco, for plaintiff and respondent. Christopher R. Inama, San Carlos, for defendant and appellant.


In this case we hold that theft by false pretenses is not committed where a store investigator was not deceived by the pretense, even though a store clerk was, because the investigator's knowledge is imputed to the victim owner.   We therefore reverse the conviction of Frederick B. Richmond for petty theft with a prior (Pen.Code, § 666).


Richmond attempted a fraudulent exchange of merchandise at a Mervyn's store.   An investigator employed by the store, Michael Anthony Scammon, who was working in a video camera surveillance room, received a telephone report that a customer had exchanged merchandise without a receipt.   Scammon located Richmond on a video camera and watched him approach a display of t-shirts, select two of them, and take them to a cash terminal.   Richmond placed both shirts on the counter, made a tapping motion on one of them, and pushed one toward the clerk, Mary Chan, who then completed an exchange transaction.   Richmond took one of the shirts, never having paid for it, and left the area.   At that point, Scammon telephoned Chan and confirmed that the transaction had been an exchange.   He and two partners then detained Richmond inside the store.   Richmond admitted to Scammon that he had exchanged one of the shirts for the other, telling Chan that the one was too small.

As part of a negotiated disposition, Richmond agreed to a court trial based on the preliminary hearing transcript.   The judge found him guilty of petty theft with a prior and imposed a lower term of 16 months, doubled to 32 months under the Three Strikes law (Pen.Code, § 667, subd. (e)(1)).


 Richmond correctly contends that because Scammon was not deceived, the only offense committed was attempted theft by false pretenses, and the judgment must be reversed due to insufficiency of the evidence.

 An essential element of theft by false pretenses is that the owner “must have been induced to part with [the] property in reliance on the false representation.”  (People v. Lorenzo (1976) 64 Cal.App.3d Supp. 43, 46, 135 Cal.Rptr. 337, italics added.)   Absent reliance on the pretense—e.g., where the owner was not actually deceived—the offense can be no more than attempted theft.  (Id. at p. 47, 135 Cal.Rptr. 337.)

In Lorenzo, a grocery store manager saw the defendant switch price tags on merchandise and pay a clerk at less than the correct price.  (Id. at pp. 45–46, 135 Cal.Rptr. 337.)   The appellate court held there was no theft by false pretenses because the manager had been aware of and had not relied on the pretense.  “Since the manager is the agent of the victim-market owner and his knowledge is that of the victim (Civ.Code, § 2332) we cannot hold on these facts that theft by false pretenses was established.”  (Lorenzo, supra, 64 Cal.App.3d Supp. at p. 47, 135 Cal.Rptr. 337.) 1  The present case is not materially different.

At Richmond's preliminary hearing, the magistrate relied on the fact that the clerk, Mary Chan, was deceived.   That point is inconsequential.   Mervyn's, not Chan, was the owner of the merchandise and thus the victim.   Chan and Scammon were both Mervyn's agents, and while Chan had no knowledge of the deception, Scammon did, and his knowledge is imputed to Mervyn's.   The victim, Mervyn's, was not deceived.

This was the conclusion in Walker v. State (1953) 89 Ga.App. 101, 78 S.E.2d 545, where the defendant charged store merchandise to a closed account.   The store clerk was deceived, but the store's credit department was not, having refused further credit to the defendant.   The court held:  “A company is chargeable with the composite knowledge acquired by its officers and agents acting within the scope of their duties.  [Citations.]  It follows therefore that the act of one servant or agent of a corporation which is the result of ignorance of the facts on the part of that individual does not serve the same purpose, in a legal sense, as ignorance on the part of the corporation, where the corporation, being a composite entity, has acquired knowledge of the facts from other sources.”  (89 Ga.App. 101, 78 S.E.2d at p. 549, original italics;  accord, State v. Mullin (Iowa 1975) 225 N.W.2d 305, 308–309.)   In other words, the composite knowledge of two agents—one deceived but the other not—made the victim aware of the deception, and thus the element of reliance was absent.   The situation here is the same.

The People argue that until the transaction was completed, Scammon “only suspected, but did not know,” that Richmond had made a false exchange.2  But Scammon certainly knew something was amiss, and his testimony indicates he more than suspected, but believed, that there had been a false exchange.   He testified, “We called Mary Chan to confirm that the transaction was finished and it was an ․ exchange.”  (Italics added.)   His asserted intent to “confirm”—rather than, for example, “determine”—that there had been a false exchange indicates he believed such had occurred.   If he believed there had been a false exchange, he was not deceived.3

We therefore reverse the judgment of conviction of petty theft with a prior.   Richmond's offense was attempted theft.4


The judgment is reversed.

KING, Associate Justice.

PETERSON, P.J., and HANING, J., concur.

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