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District Court of Appeal, Fourth District, California.

William BUCK, Petitioner, v. The SUPERIOR COURT of the State of California, Respondent, The PEOPLE of the State of California, Real Party in Interest.

Civ. 7841.

Decided: December 17, 1964

Trope & Trope and Sorrell Trope, Beverly Hills, for petitioner. Kenneth Williams, Dist. Atty., of Orange County, and George J. Jeffries, Deputy Dist. Atty., for respondent and real party in interest.

Petitioner was arrested and charged with two counts of theft, in violation of Penal Code, sections 484 and 487. A preliminary hearing was held in the Municipal Court, Anaheim-Fullerton Judicial District, which hearing resulted in petitioner being held to answer in respondent Court. An information was filed therein by the District Attorney of Orange County, charging petitioner not only in two counts with theft, in violation of sections 484 and 487 of the Penal Code, but in addition, also in two counts, with violation of Penal Code, section 470 (forgery). Petitioner moved respondent Court to set aside the information pursuant to the provisions of subdivision 2 of Penal Code, section 995, to wit:

‘That the defendant had been committed without reasonable or probable cause.’

This motion was denied and the case was set for trial. Petitioner seeks from this court a writ of prohibition ‘demanding said court to desist from any further proceedings in said action.’

Petitioner is an aluminum siding salesman. The charges here arose out of two separate sales of siding made by him. One sale was to a Mr. and Mrs. May, the other to a Mr. and Mrs. Whorley. In each sale, petitioner is alleged to have produced for signature of the parties a sheaf of forms consisting of a white top copy, under which there was a pink and yellow copy, all separated by carbon paper. The fourth and bottom paper, apparently a deed of trust form, was not separated from the third (yellow) copy by carbon paper. The top sheet contained the caption, ‘Lien Contract’ and ‘Do Not Record.’ Just below this, in bracketed bold type, appears, among other admonitions, the following: ‘Notice to the buyer: (1) Do not sign this agreement before you read it or if it contains any blank space.’ Below this, in smaller type in the body of the instrument, appears this language: ‘* * * in addition to any other right or remedy given to the holder hereof, the undersigned hereby grants to the holder hereof a deed of trust to the above described real property as security for the faithful performance of his, her or their obligation under this contract.’

From testimony in the record, it appears that the question of the obligations being secured by deeds of trust on the respective properties was discussed and in each instance the parties told petitioner that they wanted no mortgage or trust deed encumbering their property and they received petitioner's assurance that there would be no deed of trust or mortgage. It seems, however, that after the Mays and the Whorleys had signed on the top sheet of their respective ‘Lien Contracts,’ petitioner pushed the bottom of the top three sheets up, exposing only the bottom of the fourth or last sheet which the parties were asked by petitioner to sign and did sign without seeing what appeared thereon above their signatures. It is charged that this last sheet was a deed of trust, the blanks of which had not been filled in at the time but were subsequently filled in by typewriter after the victims had been tricked into signing them, whereas the blanks on the lien contract forms were filled in in handwriting at the time of the signing.

Respondent Court and the People of the State of California, the latter being real party in interest, maintain that he method above outlined of obtaining the Mays' and Whorleys' signatures to the respective deeds of trust constitutes not only a violation of Penal Code, section 484, defining theft, but also constitutes ‘forgery,’ in violation of Penal Code, section 470.

Petitioner argues that he was not charged with forgery prior to the preliminary hearing, but that said charge appeared for the first time in the information filed in respondent Court. He maintains also that ‘there is absolutely no evidence in the transcript of the commission of the offense of forgery * * *’

Petitioner denies that he tricked the alleged victims into signing the deeds of trust, but places no emphasis on any claim that there is insufficient evidence in the record to legally support such a finding by the Municipal Court in binding the petitioner over. Petitioner does maintain, and places all of his emphasis on the point, that even though he should admit for the sake of argument that the alleged victims were tricked into signing the deeds of trust, this would not constitute theft under the provisions of Penal Code, sections 484 and 487, for the reason that the instrument itself, which was the object obtained through the trickery, has no ascertainable intrinsic value within the meaning of those code sections. As the proposition is stated by petitioner:

‘The scope of this Memorandum deals with the topic of whether a deed of trust given to secure a just debt or obligation has a value other than a mere intrinsic value, and more particularly whether such a deed of trust has an ascertainable extrinsic value within the meaning of California Penal Code Sections 484 and 487.’

It is admitted by petitioner, solely for the sake of resolving this problem, that execution and delivery of the respective deeds of trust were obtained by petitioner through false representation and trickery. The finding of actual fact is for the trial court if this position is denied and the matter is brought to trial.

The value of the physical instrument itself is negligible. The fact is not questioned, however, that the amounts which the respective deeds of trust purported to secure were in each instance in excess of the $200 specified in Penal Code, section 487.

Respondent's theory is set forth in the return to the petition, as follows:

‘It is the theory of the People of the State of California that the actions any concealments of Petitioner in denying to victims in Court III and concealing from victims in Court I that there would be a trust deed recorded against victims' property as a result of their purchase of aluminum siding constitutes obtaining money by false pretenses in violation of Penal Code section 484 (Theft). This theory is supported by the evidence of the representations and concealments of defendant, and his actions in having the victims sign the bottom of a sheaf of papers as duplicate contracts when the bottom sheets were instead trust deeds.’

We do not agree that respondent's theory concerning theft is bourne out by the facts as they are made to appear. Petitioner actually obtained no money by false pretense. All he did obtain, under our accepted factual situation, was a transfer in trust of legal title to the real property to secure an admitted obligation. The parties have given us very little in the way of authority or discussion to assist us in deciding whether, under the law as it pertains to theft, petitioner obtained anything worth $200 or more which the victims had not intended.

A deed of trust has no market or ascertainable value, apart from the obligation it secures. A trust deed does not divest the trustor of his ownership in the property. (Wyser v. Truitt, 95 Cal.App. 727, 273 P. 147.) Where deeds to real property are obtained by fraud, there is no delivery or passage of title, and the deeds, being worthless, cannot be made the basis of a charge of grand theft. (People v. Nye, 96 Cal.App. 186, 190, 273 P. 837; People v. Sewall, 90 Cal.App. 476, 265 P. 1040.)

The debt obligation itself is admitted by the victims in each instance and it is not claimed by respondent that any portion thereof has been collected by recourse to the deeds of trust. As yet, nothing of value has been taken from the victims through use of the illegally obtained instruments. We therefore cannot find that the alleged depredations by petitioner which confront us here constitute theft. We are not faced with the problem as it would have been had petitioner obtained payment of all or part of the obligations through recourse to the deeds of trust.

Turning now to the two counts charging forgery, Penal Code, section 470, provides in part:

‘Every person who, with intent to defraud, * * * falsely makes, alters, forges, or counterfeits, any * * * deed, lease, indenture, writing obligatory, * * * or to let, lease, dispose of, alien, or convey any * * * lands, * * * or other estate, real or personal, * * * or * * * passes, or attempts to pass, as true and genuine, any of the above named * * * knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person * * * is guilty of forgery.’

In People v. Nesseth, 127 Cal.App.2d 712, 719–720, 274 P.2d 479, 483, the following statements appear:

‘That the correct rule is that the procuring of a genuine signature to an instrument by fraudulent representations constitutes forgery is supported by these well reasoned authorities: [citing many cases]. * * *

‘Likewise, the rule is established in California that alteration of a document without authority with the intent to defraud may constitute forgery and that such alteration may consist of the insertion of matter in the document in question after it has been signed. (People v. McKenna, 11 Cal.2d 327, 332, 79 P.2d 1065; People v. Jones, 100 Cal.App. 550, 554, 280 P. 555.)’ [Emphasis ours.]

Where a person who has no intention of selling or encumbering his property is induced by some trick or device to sign a paper having such effect, believing that paper to be a substantially different instrument, the paper so signed is just as much a forgery as it would have been had the signature been forged. (Conklin v. Benson, 159 Cal. 785, 791, 116 P. 34, 36 L.R.A.,N.S., 537; Wright v. Rogers, 172 Cal.App.2d 349, 362, 342 P.2d 447.)

From these cases and the quoted portion of Penal Code, section 470, it is quite apparent that the evidence in the record is ample to support the finding by the Municipal Court that ‘* * * a public offense has been committed, and there is sufficient cause to believe the defendant is guilty thereof * * *.’ (Pen.Code § 872.)

The charge of ‘theft,’ in violation of Penal Code, sections 484 and 487, as charged in two counts of the information, does not, however, from the standpoint of the legal definition, find such support in the record, and as to these two counts the writ is hereby granted. As to the two counts of forgery, the writ is hereby denied.



FINLEY, Justice pro tem.* FN* Assigned by the Chairman of the Judicial Council.

GRIFFIN, P. J., and COUGHLIN, J., concur.

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