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District Court of Appeal, Fourth District, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Cleon Mulford BARKER and Lillie Belie Barker, Defendants and Appellants. *

Cr. 1527.

Decided: October 15, 1959

Joseph A. Katz, San Bernardino, and Sherman, Weissman & Meryers, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., and Elizabeth Miller, Deputy Atty. Gen., for respondent.

It was charged in the information that defendants Cleon Mulford Barker and Lillie Belle Barker, husband and wife, committed the crime of grant theft (violation of sec. 487, Penal Code) by feloniously stealing personal property of one James P. Gillis exceeding in value the sum of $200. After a plea of not guilty the jury returned a verdict of guilty as charged as to both defendants and a motion for a new trial was denied. Each was granted conditional probation, involving county jail sentences, fines, restitution and return of four trust deeds and notes.

The complaining witness, Dr. Gillis, lived in Los Angeles and owned section 13, located at Kramer Junction, near Boron, San Bernardino County. Previously he had real estate dealings with defendants. In the early part of September, 1956, he telephoned to Mr. Barker at his office and told him he had received an offer of $25 per acre for that section, with a down payment of $3,200 and no commission. He asked Barker what he thought of the deal. Barker told him it was not enough and it should be worth about $50 per acre. Barker told him that he thought he could obtain that amount for it and Gillis told him he would be pleased if he did. About one month later, Gillis talked to Barker in the latter's office and Barker told him it was not worth $50 an acre but it should be worth $35 or $40 per acre. On October 14th one Marsh, a broker from Venice, went to defendants' office and said he intended to buy land in that vicinity and that defendant Barker told him defendants' family doctor owned section 13; that he was 95 years old and not now proficient in his practice; that he was selling for a low down payment for income; and that this property could be bought for $50 per acre. Marsh showed interest and later returned and talked to both defendants. Barker showed him the property. Again on November 1st Marsh and his wife visited defendants' office, talked with both defendants and asked if the price could be reduced. He was told the doctor would not sell for less. The Marshes made an offer of $45 per acre and left a $500 deposit with defendants. Receipts were signed. A few days thereafter Barker telephoned Dr. Gillis and said he tried to obtain a buyer for section 13 but had been unsuccessful, and said he had a buyer for $25 per acre and that was the best he could do. When reminded of the previous offer of $25 per acre, without commission, defendant Barker said he would not be too hard on him and they could get together later and figure out the commission. Dr. Gillis inquired of the reliability of the prospective purchaser at $25 per acre and defendant Barker assured him the party was reliable. Dr. Gillis consented to the deal. Defendant Barker did not mention the name of the prospective buyer and did not tell him it was defendant Barker's wife who was buying it. About November 7, March telephoned and Mrs. Barker answered. He inquired about not receiving escrow instructions in reference to the sale of section 13 to him. She said she had been unable to contact Dr. Gillis. The next day Marsh drove to appellants' office and both defendants told him that the doctor had sold his property to Barker's sister, a Mrs. MacDonald, who was a nurse. who traveled a lot, and since the doctor was in need of immediate cash she would sell it to him for the same price and terms they had offered Gillis.

About the middle of November Mrs. Barker saw an escrow agent in San Bernardino and introduced herself as Lillie Belle MacDonald and gave the escrow agent written information signed by her as Mrs. MacDonald, indicating the sale was from Gillis to her. She there also signed and notarized a grant deed from her to Marsh, using that name. About November 15th Marsh received in the mail copies of escrow instructions, thus prepared. March called defendants and complained because the instructions contained a provision for the payment of a first trust deed and four second trust deeds. One of defendants said Mrs. MacDonald would probably pay off the first trust deed and carry the entire balance hereself. He then agreed to be at the title company office on November 19th to meet Mrs. MacDonald and set up the escrow. Marsh appeared but Mrs. MacDonald failed to be there. The escrow was prepared and Marsh took copies with him. On November 20th Dr. Gillis received, by mail, the escrow instructions. He signed them and returned them to the title company. Later, Dr. Gillis received and signed a deed to section 13, to Mrs. MacDonald and mailed it to the title company. He received $16,000 based on a sale of $25 per acre. On December 17th Mrs. Barker telephoned Marsh and demanded the balance of money to close the escrow, saying she was leaving for Chicago and wanted to close it. Marsh had forwarded the check and a recorded grant deed was mailed to him showing the grantor as ‘Lilyan E. MacDonald, a widow’. $28,800 was the purchase price. A few weeks thereafter Barker requested of Dr. Gillis a suggested commission of 10 per cent or $1,600 but indicated he would be willing to accept $800, or that he would accept a deed of 10 acres of similar land owned by Gillis in lieu of his commission. About January 30, 1957, Mr. Barker telegraphed Marsh to send the payments to him rather than to Mrs. MacDonald, claiming she had authorized it and said he would have her send a letter to him to this effect. On January 31, 1957, Marsh received such a letter, apparently signed by Mrs. MacDonald, stating Mr. Barker usually knew where to find her. About March, 1957, Marsh went to defendants' office believing defendant Mrs. Barker was using the name of Mrs. MacDonald and that she was the one who actually purchased the property and she and her husband together were making a secret profit. Both Mr. and Mrs. Barker were thus accused. Mrs. Barker said she had known Mrs. MacDonald for years; that she was a real person; that she (herself) had never used any other name than Barker and that said Mrs. MacDonald was in Michigan. They were asked by Marsh to give him her address and they said they did not care to do so. Previously, Marsh had a handwriting expert compare the claimed signature of Mrs. MacDonald and that of Mrs. Barker and he concluded that both signatures were that of Mrs. Barker. The escrow officer corroborated the transaction with the title company as related by plaintiffs' witnesses.

In defense, the Barkers denied generally all of these conversations and claimed that Marsh had not made an offer prior to the sale to Mrs. MacDonald. Mrs. Barker said that she dealt in many real estate transactions in her former name, MacDonald, and this was such a transaction; that she requested her husband to buy the property for her at $25 per acre and she received $751 at the close of escrow and $180 in subsequent payments.

The main contention of defendants is that the offense with which they are charged was taking personal property by false pretenses whereas the offense attempted to be proved by the People was the taking of real property.

A defendant may be convicted of grand theft upon proof showing either larceny, embezzlement or obtaining money or property by false pretenses. People v. Cannon, 77 Cal.App.2d 678, 688, 176 P.2d 409; Sec. 484, Pen.Code. A conviction of theft based on a general verdict of guilty, can be sustained where the evidence discloses the substantive elements of one of the consolidated offenses. People v. Nor Woods, 37 Cal.2d 584, 233 P.2d 897.

A mere examination of the record clearly indicates that defendants did obtain Dr. Gillis' property by means of a false statement or pretense. This property was obtained by defendants and transferred to the Marshes by means of two separate escrows to accomplish the ultimate taking of the property. By virtue of this agreed transaction these defendants acquired cash in the sum of $751 out of the escrow and the sum of $180 by way of payments. These items exceed the sum of $200 required by statute to constitute grand theft. The evidence would be sufficient to support the allegations of the information if the jury was convinced this money was feloniously taken from Dr. Gillis as a result of the entire transaction. People v. Edwards, 72 Cal.App. 102, 114–115, 236 P. 944, 948. Furthermore, the $500 deposit received by defendant Barker in the first instance from the buyer Marsh, was clearly obtained as the agent of owner Gillis. The appropriation of this sum to defendants' own use by their fraudulent machinations in the escrow proceedings was unquestionably the theft of a sum in excess of $200 and was sufficient of itself to support the verdict of the jury.

It is the general rule that ‘a taking, within the definition of larceny, occurs when a person, with a preconceived design to appropriate the property to his own use, obtains possession of it by means of fraud or trickery. In such case the fraud vitiates the transaction, and the owner is deemed still to retain constructive possession of the property.’ People v. Edwards, supra. On this theory it might be well reasoned that defendants, in concert, acquired and held the title to Gillis' property by such conduct and deception, and as involuntary trustees of a constructive trust refused to account for and appropriated to their own use $12,800, the differential in price misrepresentation. Sec. 2224, Civ.Code; Bainbridge v. Stoner, 16 Cal.2d 423, 106 P.2d 423. Under this theory Dr. Gillis had a legally recognizable interest in the funds sufficient to sustain the affirmation of ownership in the property held by the trustee. People v. Applegate, 91 Cal.App.2d 163, 204 P.2d 689; Rattary v. Scudder, 28 Cal.2d 214, 222, 169 P.2d 371, 164 A.L.R. 1356; Pen.Code, sec. 506; People v. Torp, 40 Cal.App.2d 187, 104 P.2d 542.

From the evidence of deceit and false representations by the defendants, there seems no other logical inference which could have been made but that the defendants intended, without claim or pretense of right or justification to deprive Dr. Gillis of the sum which Mr. Marsh paid for the land in excess of that which was given to Dr. Gillis.

As to the charge of grand theft alleging the taking of personal property of a value in excess of $200, section 484 of the Penal Code makes it a felony for one to take the personal property of another or fraudulently apropriate property which has been entrusted to him or by false or fraudulent representations defraud any other person of real or personal property. Had the information merely charged a violation of that section, i. e., that defendants defrauded the complaining witness of property in excess of $200 in value, it would have been sufficient to sustain the charge on either theory (i. e. real or personal property). By adding the descriptive word ‘personal’ in the charge it did not change the nature of the offense committed. Defendants were fully informed at the preliminary hearing of the exact transaction they would be required to defend on the trial of the action. Any additional description of the property taken did not constitute a material variance between the charge and the proof, such as would materially prejudice the substantial rights of the defendants, and a conviction of the charge of grand theft, as charged, would sufficiently protect defendants against another prosecution for the same offense. Furthermore, the addition of the word ‘personal’ was not likely to mislead the defendants in the preparation of their defense. People v. Leong Quong, 60 Cal. 107; People v. Prather, 120 Cal. 660, 53 P. 259; Sec. 952, Penal Code; Sec. 960, Penal Code; Sec. 1131, Penal Code; Sec. 956, Penal Code; 26 Cal.Jur.2d 603, 604, secs. 97 and 98; People v. Monteith, 73 Cal. 7, 14 P. 373; People v. Arnold, 20 Cal.App. 35, 127 P. 1060; People v. Williams, 27 Cal.2d 220, 163 P.2d 692; People v. Powell, 34 Cal.2d 196, 208 P.2d 974; People v. Braddock, 41 Cal.2d 794, 264 P.2d 521.

Notwithstanding defendants' contention to the contrary, there was sufficient evidence to show: (1) a theft of property by false pretenses; (2) an intent to commit a fraud; (3) a false representation knowingly and designedly made for the purpose of carrying out a felonious intent; (4) corroboration of any misrepresentation; (5) a false pretense; (6) reliance by Dr. Gillis on a false representation; and (7) that Mrs. Barker knew that her husband had made such false representations. People v. Ashley, 42 Cal.2d 246, 267 P.2d 271; Stegeman v. Vandeventer, 57 Cal.App.2d 753, 759, 135 P.2d 186; People v. Hennessey, 201 Cal. 568, 571, 258 P. 49; People v. Thomas, 103 Cal.App.2d 669, 672, 229 P.2d 836; People v. Reed, 113 339, 352, 248 P.2d 510; People v. Pugh, 137 Cal.App.2d 226, 234, 289 P.2d 826; Penal Code, Sec. 31 and Penal Code, Sec. 1110.

Lastly, defendants argue that an instruction in the language of section 31 of the Penal Code was erroneously given in reference to aiding and abetting, and that the court failed to sufficiently define such terms. They argue that the instruction said: ‘aid or abet’ and accordingly it was erroneous. An examination of the instruction clearly shows it used the words ‘aid and abet’. Therefore, no consideration is given to this claim.

In People v. Ponce, 96 Cal.App.2d 327, 215 P.2d 75, it was said that the court should, on its own motion, define these terms but the court, in that case, nevertheless affirmed the judgment. See also People v. Kelso, 25 Cal.2d 848, 155 P.2d 819. Under the facts of the instant case we reach the same conclusion that no prejudicial error resulted and no different verdict would have been rendered for the sole reason that the trial court failed to define these terms.

Order granting probation and denying a new trial affirmed.

GRIFFIN, Presiding Justice.

SHEPARD, J., concurs.