PERRY v. People of the State of California, Real Party in interest.*

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District Court of Appeal, Second District, Division 3, California.

John Woodford PERRY, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF LOS ANGELES, Respondent, People of the State of California, Real Party in interest.*

Civ. 25722.

Decided: October 11, 1961

John Woodford Perry, in pro. per. No appearance for respondent. William B. McKesson, Dist. Atty., of Los Angeles County, Los Angeles, Harry B. Sondheim, Pacific Palisades, Harry Wood, and Robert J. Lord, Deputy Dist. Attys., Los Angeles, for real party in interest.

Prohibition to arrest further proceedings in an action titled People, etc. v. Perry except to dismiss the information.

By information petitioner Perry, referred to as Perry, was accused of grand theft in that he obtained $800 from Edna Joslyn by false representations or pretenses. His motion to dismiss the information on the ground it did not appear from the evidence before the committing magistrate that a public offense had been committed and therefore he had been held to answer without reasonable or probable cause, was denied. (Pen.Code, §§ 871, 995.)

Edna Joslyn was secretary and cashier of Canada Life Insurance Company, called Canada. On and before March 23, 1961 Alvin Fredrickson was employed by Canada as an agent. Fredrickson was endeavoring to induce Perry to buy substantial life insurance. During the discussions Perry told Fredrickson he needed an $800 loan and he would pay $200 for use of the money for a week. Perry also told Fredrickson he had borrowed and extended his credit to the limit. Fredrickson told Perry he did not have the money to make the loan but he would make a few calls to see whether he could find someone who might be interested in making it.

Fredrickson contacted his fellow employee, Miss Joslyn, about making the loan. She indicated she might be interested. Fredrickson told her Perry was willing to pay $1,000 for a week's loan of $800; that Perry would give his check for $1,000 payable to her to be held one week by Fredrickson; that Atkins Properties (a real estate concern engaged in arranging loans) was handling a second loan in escrow for Perry on certain realty from which payment would be made to Perry within a week.

On March 23, 1961 Fredrickson telephoned Perry from Canada's office. After some preliminary talk Fredrickson brought Miss Joslyn in on a connecting telephone and a three-person conversation took place. Fredrickson introduced Miss Joslyn to Perry. Miss Joslyn asked Perry whether he wanted a loan of $800 for a week. Perry said, ‘Yes.’ She said to Perry, ‘I understand you will give me a demand of a thousand dollars on an escrow of a second loan on a piece of property that you own at 3660 Aureola.’ Perry said, ‘Yes.’ Miss Joslyn testified: ‘And then I said, ‘Well, I would like to be assured’—as he told Mr. Fredrickson that the Atkins Properties was handling his loan in escrow—‘I would like to be assured that somebody from the Atkins Property have this escrow.’ I [he] said, ‘I will introduce you to Mr. Williams and he will tell you.’ So Mr. Williams came on the phone and I said, ‘Mr. Williams, I want to be assured of this escrow. Does Mr. Perry have an escrow about to be paid within a week on this second loan of this property on Aureola?’ And he said, ‘Yes.’ I said, ‘Do you know of any—do you know of any obstacles that might prevent this money being paid to him out of this escrow?’ And he said he didn't. So I said, ‘Well, may I place a demand for a thousand dollars against this escrow?’ And he said, ‘Yes.”

In the telephone conversation and in a meeting with Miss Joslyn and Fredrickson the next day, Perry said that he did not have sufficient funds in the bank but he would give his check payable to Miss Joslyn for $1,000. It was arranged that Fredrickson would hold the check for five days and if the $1,000 was not paid to Miss Joslyn out of the second loan negotiated by Atkins, Fredrickson could deliver the check to Miss Joslyn and Perry would arrange otherwise to cover the check. On March 24, 1961 Miss Joslyn gave Perry $800 and he delivered to her his check for $1,000. She handed it to Fredrickson to hold for the agreed five days. On March 24 Perry also gave Miss Joslyn a written demand on Atkins to pay $1,000 to her from the second loan of $12,500, negotiated by Atkins. Miss Joslyn delivered the demand to Atkins on the 24th.

No payment was made to Miss Joslyn within the five days. Fredrickson then delivered the $1,000 check to her and she accepted it. When it became apparent that the $1,000 was not going to be paid to Miss Joslyn within the five days by or through Atkins or from the escrow with respect to the second loan, Perry told her he could not raise the money to cover the $1,000 check except by paying a lending party an exorbitant $350 for a short term $1,000 loan. Miss Joslyn agreed to discuss the matter further and to have another meeting with Perry at Atkins. As a result, Perry gave to Miss Joslyn and she accepted a written demand on Atkins authorizing payment to her of $1,200 out of the $12,500 loan negotiated by Atkins for Perry on the Aureola Street property. Perry also mailed to Miss Joslyn his check for $1,200 payable to her, nothing on the check, ‘Account closed.’ He explained the notation to her by stating he had no funds in the bank at the time to cover the check and could only raise money by paying exorbitant interest.

In late 1960 Perry had agreed to buy realty at 3660 Aureola Street from the owner, and an escrow with respect thereto had been opened with Washington Escrow Company. Prior to meeting Miss Joslyn, Perry had made a down payment and had made additional deposits in the escrow.

Grace Ginns of Atkins testified that in the first part of 1961 Perry told her he was buying the Aureola Street property; he had made a deposit in escrow with Washington Escrow Company; he had secured a first loan from Great Western Savings and Loan Association; he had requested her to obtain a second trust deed loan on the property for $12,500; he had signed the mortgage loan broker's papers; she had ‘a lender who would make the loan’; the loan was not completed because Atkins did not receive the papers on the first deed of trust from Washington Escrow Company. Miss Joslyn did not receive any part of the $1,000 from Atkins or from Perry.

Sometime after February 8, 1961 the seller of the Aureola Street property notified Washington Escrow Company to terminate the escrow for the purchase of the property because he claimed Perry had not met his obligations thereunder. He did not send a copy of the notice to Perry. And he did not inform Perry he ‘would close the escrow’ until the first part of April, 1961.

The foregoing is the evidence that was before the magistrate. The prosecution introduced no evidence showing the terms of the Washington Escrow Company escrow or the cancellation of that escrow or notification to Perry of any cancellation. Likewise, the prosecution introduced no evidence that Perry's statements he had secured a $34,000 first loan on the property were false.

The crime of grand theft is committed when a person knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of property of a value exceeding $200. (Pen.Code, §§ 484, 487.) To establish the commission of the crime of grand theft ‘sounding in false pretenses,’ as the charge is made here, these factors must be proved: (1) the making of false representations of past events or existing facts as distinguished from a mere expression of opinion or promise of future action; (2) the representations were known to be false and were made with intent to defraud the owner of his property; and (3) the owner was actually defrauded in that he parted with his property in reliance on the false representations. People v. Jones, 36 Cal.2d 373, 377, 224 P.2d 353; People v. McNear, 190 Cal.App.2d 541, 12 Cal.Rptr. 124.

There was no evidence warranting a reasonable belief that Perry made any false representation to perpetrate a fraud. The evidence shows Perry had entered into a bona fide agreement and escrow for the purpose of purchasing the Aureola Street property from a Mrs. Dolan; that he had made a down payment and payments into the escrow; that he had a commitment for a $34,000 first trust deed loan; and that he had a commitment for a $12,500 second trust deed loan. Perry told Miss Joslyn and Fredrickson his credit was extended to the limit; and when it appeared probable the $1,000 would not be paid from the escrow within five days, he gave Miss Joslyn and she accepted the $1,200 demand and his check for that amount with his explanation that he had no money in the bank.

The only statement of Perry which could be considered false is that he owned the property. This was not a material representation for these reasons: if the loan went through he would have owned the property and Miss Joslyn would have received her money; if it did not go through she would not have received her money even if Perry had owned the property.

Neither the evidence nor any justifiable inference which can be drawn therefrom warranted a reasonable belief that Perry had an intent to defraud Miss Joslyn when he borrowed the $800.

There was no evidence that Miss Joslyn relied on any representation of Perry. On the evidence, Miss Joslyn relied on the representations of Fredrickson and of Atkins rather than on any representation of Perry, and she was willing to take an utterly unconscionable and usurious return on her loan to Perry. Her acceptance of the second demand on Atkins for $1,200 clearly indicates she recognized Perry had no intent to defraud. If she was misled, it was by statements of Mr. Williams of Atkins assuring her that Perry had an escrow from which the funds would be paid within one week from a second loan; that he (Williams) knew of no obstacle that might prevent the proceeds of that loan being paid to Perry; and that she could place a demand for $1,000 against the escrow. Although the testimony of Miss Joslyn to be quoted was erroneously stricken on motion of Perry, appearing in propria persona, it shows conclusively that she did not rely on any representation of Perry. She testified: ‘Well, to be perfectly frank with you, if we are going to separate that from the preliminaries, everything depended on what the Atkins people assured me that he had a loan being due to him in cash within a week. That was where I hinged my whole decision. * * * Q. Did you give Mr. Perry the $800 on March 24 in reliance that the check for $1,000 that he gave you on the same date would be good? A. Well, no. He told me that he didn't have sufficient funds to cover that check in there, and I never attached much importance to that check. I thought it was just additional security. The importance I attached to was this escrow. I never attempted to cash that check or either one of them.’

We hold there was no evidence that a public offense had been committed.

Let a peremptory writ of prohibition issue as prayed.

VALLEÉ, Justice.

SHINN, P. J., and FORD, J., concur.