PEOPLE v. VALENTINE

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Ronald Edward VALENTINE, Defendant and Appellant.

H001410.

Decided: July 23, 1987

Frank O. Bell, Jr., Public Defender, John Plotz, Deputy Public Defender, San Francisco, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Ann K. Jensen, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

A jury convicted Ronald Edward Valentine of one count of first-degree burglary, five counts of second-degree burglary, and four counts of petit theft with a prior felony conviction.  (Pen.Code, §§ 459, 460, 666.)   He was sentenced to serve nine years in the state prison, and he appeals from the judgment of conviction.

As grounds for reversal, Valentine contends (1) that his extrajudicial statements were unlawfully obtained and improperly used against him at trial, and (2) that his motion for a mistrial, based upon “witness misconduct,” was erroneously denied.   He further contends that the evidence showed merely “petty fraud” rather than burglary, and therefore the judgment, if not reversed, should be modified accordingly.

We find no error which warrants a reversal, and we therefore affirm the judgment.

I.

The convictions stemmed from a series of swindles accomplished by Valentine over a period of approximately 21 months.   The details varied in each instance, but the general method of operation ran something like this:

Valentine would enter a business establishment (e.g., an ice cream parlor, a beauty salon, or a motion picture theater) and would explain to an employee that he, Valentine, was to deliver some merchandise to the proprietor, who invariably was absent at the time.   The merchandise (television sets, stereo equipment, or a video cassette recorder), Valentine would say, was presently situated in a warehouse;  and therefore he needed some cash to rent a truck, and perhaps a hand dolly, to retrieve the goods and deliver them.   Valentine would convey the impression that he had had previous dealings with the proprietor.   The reluctant employee would try to contact the proprietor by telephone, without success.   Valentine would then persuade the employee to advance the cash (either out of the till or out of the employee's pocket) so the merchandise could be delivered.   Valentine would promise to return shortly with the merchandise, and would then abscond.   Subsequently it would develop that the proprietor knew nothing of the transaction or of Valentine.   Of course, none of the promised goods ever was delivered.   By this means Valentine managed to obtain between $58.00 and $78.00 from each of his commercial gulls.

A variation on this theme occurred when Valentine entered a garage attached to a dwelling house, where he spoke with an occupant of the house.   There Valentine conned the occupant out of $100.00, with a promise that he would return shortly with a television set which had been ordered (supposedly) by the occupant's former roommate (who had recently moved, and of course was not present at the time).   Hence the count of first-degree burglary.

Valentine's most recent cozenage (attempted in a motion picture house) ended in disaster.   A suspicious employee kept him waiting while she pretended to call her employer, instead, she called the police.   One of the responding officers, Fred Porras, placed Valentine under arrest for burglary.

II.

Valentine was not happy.   At the scene, according to Officer Porras, “[h]e told me that he had some witnesses there, an attorney from the American Civil Liberties Union.   He also told me that he had handed a tape recorder to him while I wasn't looking and I don't recall the exacts words of—but there was quite a few.   He was talking pretty fast and almost rambling on.”  “[H]e was very angry.   There was some slight resistance in the handcuffing procedure and he then became verbally abusive.”  “There was a little swearing and more threatening of suing and there was some mention of—of the charge, that it was not a good charge.”  “I recall that he said he hadn't broken in, it was not a burglary.”

Valentine was transported to the police station, a process which took only a few minutes.   There he was placed in what Officer Porras described as “our preprocessing room where we normally conduct our prebooking forms, felony affidavits, photographing of suspects prior to taking them to the jail.”   Then, according to Porras, “I was just about to fill out my prebooking form, and I told him that I was very proud to meet him because I had not met anyone who could—I don't remember the exact word, I referred to conning people, or taking money from people, but with—by deceit.   And I told him that he was going to be famous, that the news media would pick up on the story and that he'd probably be on T.V. and the newspapers.”  “He seemed to appreciate what I was saying, he seemed to be calming down and I could see a smile starting to show on his face.”  “I started asking him questions about the prebooking form, his name, date of birth, and—and then I asked him what his occupation was.”   “He stated he was a con man and he had conned a thousand people in Palo Alto.”

Porras advised Valentine of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 478–479, 86 S.Ct. 1602, 1629–1630, 16 L.Ed.2d 694).   Valentine waived them and agreed to talk to Porras.   In the ensuing twenty-minute discussion Valentine said “that he'd conned a thousand people and that he'd been doing this for fourteen years.”   Valentine claimed he had committed no crime “because he was taking money from people that believed they were purchasing stolen property.”  “He said again that he didn't feel that he committed a burglary because he didn't break in.”

III.

At trial Valentine did not testify or present any evidence.   His counsel argued to the jury that there had in fact been transactions between Valentine and the absent proprietors, but the proprietors would not acknowledge them because they believed they were getting “hot goods.”

IV.

Before trial Valentine moved in limine to exclude from evidence any statements he had made to Porras prior to being advised of his Miranda rights.  (See, e.g., Saidi-Tabatabai v. Superior Court (1967) 253 Cal.App.2d 257, 258, 266–267, 61 Cal.Rptr. 510.)   After listening to testimony of Porras and the arguments of counsel, the court denied the motion.   The court expressly told defense counsel that its ruling in limine was not final, and that the issue could be raised again at trial.   But when Porras testified at trial, Valentine interposed no objection based upon the Miranda issue.1

Valentine now acknowledges that the lack of an objection at trial ordinarily would preclude him from raising a Miranda issue on appeal;  but if so precluded, he argues, then he was denied the effective assistance of trial counsel.   We decline to leap from the Miranda -violation frying pan into the incompetence-of-counsel fire because, as we will explain, we find no merit in Valentine's Miranda arguments.

A. Pre-Admonition Statement

Valentine first contends that his pre-Miranda statement—to the effect that he was a “con man”—should not have been admitted in evidence, citing People v. Rucker (1980) 26 Cal.3d 368, 386–389, 162 Cal.Rptr. 13, 605 P.2d 843.

The defendant in Rucker was convicted of first-degree murder and robbery.   At trial, the defense was diminished capacity.   To rebut that defense the prosecution was allowed to introduce evidence of a “booking” interview of the defendant which was conducted by two police officers.   The interview was by no means routine;  the police interrogated the defendant at length concerning his physical characteristics, educational history, military service, and employment;  and no Miranda warnings were given.   The California Supreme Court reversed the judgment.   In passing on the “booking” issue the court made several comments worthy of note here.  “The Miranda safeguards are not necessary at a proper booking interview at which certain basic information is elicited having nothing to do with the circumstances surrounding any offense with which the defendant has been charged․  The limited information needed at a booking procedure is required solely for the purposes of internal jail administration, not for use in connection with any criminal proceeding against the arrestee.   When use of this information is confined to those proper purposes, its elicitation cannot be considered incriminatory.”  (Id., at p. 387, 162 Cal.Rptr. 13, 605 P.2d 843.)  “[¶] Jail officials still retain the right to satisfy a demonstrated need for certain basic information concerning the arrestees in their custody.   This need can be accommodated by permitting the state to obtain from an arrestee the basic, neutral information that is necessary for proper jail administration, but forbidding the state from using the arrestee's responses in any manner in a subsequent criminal proceeding.   Therefore, Miranda warnings need not be given at a booking interrogation, since the information acquired cannot be put to any incriminatory uses.”   (Id., at p. 389, 162 Cal.Rptr. 13, 605 P.2d 843, italics in original and supplied.)

 The Attorney General argues that the Rucker rule was “overruled” by the enactment of Article I, section 28, subdivision (d) of the California Constitution (otherwise known as Proposition 8).   Indeed, one Court of Appeal has suggested as much in People v. Herbst (1986) 186 Cal.App.3d 793, 798–800, 233 Cal.Rptr. 123.   We agree, for the following reasons:

The Rucker opinion was filed January 29, 1980.   On May 12, 1980 the United States Supreme Court rendered its opinion in Rhode Island v. Innis (1980) 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297, in which it considered the definition of the word “interrogation.”   Among other things the court said this:  “[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect․  But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.”  (Id., at pp. 301–302, 100 S.Ct. at pp. 1689–1690, fns. omitted, italics in original.)   Though the court did not expressly so state, we think that in excluding words and actions “normally attendant to arrest and custody” from the definition of “interrogation,” it meant to exclude routine booking inquiries.  Innis thus reinforces the proposition that “[d]espite the breadth of the language used in Miranda, the Supreme Court was concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment.”  (United States ex rel. Hines v. LaVallee (2d Cir.1975) 521 F.2d 1109, 1112–1113, cert. den. (1976) 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101, accord, United States v. Gotchis (2d Cir.1986) 803 F.2d 74, 79.)   A majority of the federal circuit courts which have considered the question have held that incriminating evidence derived from a routine booking interview is admissible despite the fact that no Miranda warnings were given.  (See, e.g., United States v. Taylor (4th Cir.1986) 799 F.2d 126, 128;  United States v. McLaughlin (8th Cir.1985) 777 F.2d 388, 391–392;  United States v. Sims (11th Cir.1983) 719 F.2d 375, 378–379, cert. den. (1984) 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703;  United States v. Avery (6th Cir.1983) 717 F.2d 1020, 1024–1025, cert. den. (1984) 466 U.S. 905, 104 S.Ct. 1683, 80 L.Ed.2d 157;  United States v. Booth (9th Cir.1981) 669 F.2d 1231, 1237–1239;  United States v. Prewitt (7th Cir.1977) 553 F.2d 1082, 1085–1086;  United States v. Menichino (5th Cir.1974) 497 F.2d 935, 940–941;  contra, United States v. Downing (6th Cir.1981) 665 F.2d 404, 406;  Proctor v. United States (D.C.Cir.1968) 404 F.2d 819, 820–821.)   Clearly, the rule announced in Rucker is not mandated by the United States Constitution.

Furthermore, since Rucker was decided the California Supreme Court has held that “[t]he express intent of section 28(d) is to ensure that all relevant evidence be admitted.   That purpose cannot be effectuated if the judiciary is free to adopt exclusionary rules that are not authorized by statute or mandated by the Constitution.”  (In re Lance W. (1985) 37 Cal.3d 873, 889, 210 Cal.Rptr. 631, 694 P.2d 744.)

 We acknowledge our duty to follow decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)  In re Lance W., supra, 37 Cal.3d at p. 889, 210 Cal.Rptr. 631, 694 P.2d 744 holds that exclusionary rules not mandated by the United States Constitution are no longer acceptable in California.   Therefore we conclude that the advent of the constitutional amendment, i.e., article I, section 28, subdivision (d) of the California Constitution, abrogated the Rucker exclusionary rule.   Accordingly, we find no error in the admission of Valentine's pre-admonition statement.

B. Post-Admonition Statements

Valentine next contends that his Miranda waiver was not voluntary because it was obtained by flattery.   He relies upon People v. Honeycutt (1977) 20 Cal.3d 150, 141 Cal.Rptr. 698, 570 P.2d 1050, which holds that “[w]hen the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary for the same reason that an incriminating statement made under police interrogation without a Miranda warning is deemed to be involuntary.”  (Id., at pp. 160–161, 141 Cal.Rptr. 698, 570 P.2d 1050.)

In Honeycutt a police officer engaged the defendant in a half-hour discussion, during which they talked of former acquaintances and the officer made disparaging remarks about the murder victim.   At the end of the half hour the defendant agreed to talk about the homicide.   A court reporter was obtained, the defendant was advised of his Miranda rights for the first time, and the defendant then waived them and confessed.   At trial the officer candidly testified that it was his duty to get the defendant to talk, and that he “ ‘could see that [defendant] was softening up.’ ”  (Id., at p. 158, 141 Cal.Rptr. 698, 570 P.2d 1050.) The California Supreme Court condemned the use of psychological techniques to secure a defendant's decision to waive Miranda rights before the Miranda warnings themselves are given.  “The self-incrimination sought by the police is more likely to occur if they first exact from an accused a decision to waive and then offer the accused an opportunity to rescind that decision after a Miranda warning, than if they afford an opportunity to make the decision in the first instance with full knowledge of the Miranda rights.”  (Id., at p. 160, 141 Cal.Rptr. 698, 570 P.2d 1050.)   But the court also recognized “that routine booking questions and responses as to a defendant's identity and other statistical information do not render involuntary a later waiver of constitutional rights.”  (Id., at p. 159, 141 Cal.Rptr. 698, 570 P.2d 1050.)

 Here, unlike the situation in Honeycutt, Officer Porras' flattery was not intended to elicit a confession from the inception of the conversation.   Porras testified that at the jail following the arrest Valentine “was still very mad at me, and he was still yelling at me and I could see he was real angry, and so I tried to calm him down by talking with him.”   Evidently the problem was not one of getting Valentine to talk, as he was talking a good deal;  the problem was to placate him.   Once that had been achieved Porras proceeded to ask routine booking questions which had nothing to do with the offenses or with securing a waiver of Miranda rights.   The questions actually put—name, date of birth, occupation—were not of the sort that Officer Porras should have known were reasonably likely to elicit the incriminating response actually given.   Therefore there was no “interrogation” of Valentine, up to the point he volunteered that he was a “con man.”   Valentine's admission was plainly voluntary, apparently the product of his cockiness.

Even if we were to assume (and we do not so concede) that Valentine's pre-admonition statement was obtained in violation of Miranda principles, we nevertheless would find no error.   The United States Supreme Court has held “that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.”  (Oregon v. Elstad (1985) 470 U.S. 298, 105 S.Ct. 1285, 1298, 84 L.Ed.2d 222.)  “Far from establishing a rigid rule, we direct courts to avoid one;  there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary.   The relevant inquiry is whether, in fact, the second statement was also voluntarily made.   As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.   The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative.”  (Ibid., fn. omitted.)

 In this case no contention is made that the Miranda warnings were inaccurate or incomplete as given, or that Valentine failed to waive them knowingly and intelligently.   The only argument is that Valentine's waiver was not voluntary, an argument which, in light of the surrounding circumstances and the entire course of the police conduct, we cannot accept.

We find no error in the admission of Valentine's post-admonition statements.

V.

Valentine next contends that Officer Porras engaged in misconduct on the witness stand, by alluding to other crimes Valentine might have committed.   Therefore, argues Valentine, the court erred in denying his motion for a mistrial.   We pause to examine the record.

Officer Porras testified that on March 17, 1985 he heard a radio broadcast about “suspicious circumstances” occurring at a local theater.   Porras was asked what went through his mind.   He replied, “Well, I was personally aware of about at least—close to ten cases involving a similar M.O. that was—method of operation, that was used to obtain money from small businesses in the Palo Alto area.”  “The name associated, that I had been told about, and it was only over the last week was the name Ronald Vallentyne [sic ].”

At this point defense counsel objected, and the trial court sustained the objection.   The court then admonished the jury as follows:  “The jury is admonished that anytime any matter is stricken from the record you're to treat it as though you never heard of it.   The rules of evidence require firsthand evidence, not hearsay.   There are some exceptions to the rule, of course, but what this officer may have heard from other cases do not come under any exception, so the jury should disregard it and should decide the case based on the evidence brought out in the trial, direct observations of the parties, not on hearsay.”   The court asked defense counsel if he was satisfied with the admonition, and defense counsel replied, “Thank you.   I am satisfied.”

Officer Porras thereafter testified about arresting Valentine, transporting him to jail, the flattery, the booking interview, the advice of Miranda rights, and Valentine's subsequent statements.   Then Porras testified, “He—during that time I asked him if he had committed those ten cases that I had suspected that he had done over the last—I think it was about—.”  Defense counsel immediately objected, and the objection was sustained.   Counsel moved for a mistrial, which was denied.   The court immediately admonished the jury thus:  “The jury is admonished to disregard it.   They can handle it.   We're talking about only the cases that are charged here.   Whether he was confronted with other cases, what he said about those, what the officer thought about those is purely irrelevant and immaterial.   And so put it out of your minds.”

At the conclusion of the evidence the court instructed the jury that “You must not consider for any purpose any offer of evidence that was rejected or any evidence that was stricken out by the court.   Such matter is to be treated as though you never heard of it.”

Valentine argues that the foregoing admonitions were not sufficient to cure the error, because Porras' mention of the “ten cases” was so prejudicial as to be irremediable.   He relies upon two appellate opinions which we now discuss briefly.

In People v. Ozuna (1963) 213 Cal.App.2d 338, 28 Cal.Rptr. 663 the defendant was convicted of voluntary manslaughter.   At trial a police officer testified that the defendant had said (after his arrest) that he was an ex-convict.   A defense motion for a mistrial was denied, but the trial court struck that portion of the officer's testimony and admonished the jury to disregard the defendant's alleged statement.   The Court of Appeal reversed, noting (1) that the officer's testimony had been “calculated” by the prosecutor;  (2) that the “prior conviction was patently irrelevant to the issues”;  and (3) that the admonition to the jury did not remove the harmful effect of the officer's testimony, because “it cannot be said the evidence of guilt was so strong as to preclude a finding of innocence.”  (Id., at pp. 341–342, 28 Cal.Rptr. 663.)

In People v. Roof (1963) 216 Cal.App.2d 222, 30 Cal.Rptr. 619 the defendant, 19 years of age, was convicted of two counts of grand theft.   He had promised to install radio equipment in the cars and trucks of his customers, and then, after receiving the money, had failed to deliver.  “It was a close question whether defendant was merely a visionary and impractical young man or a budding confidence man at the age of 19.”  (Id., at p. 227, 30 Cal.Rptr. 619.)   At trial a police officer testified that the defendant had said (after his arrest) that he had been charged with the crime of contributing to the delinquency of a minor, and that “that's where the money went.”   (Id., at p. 225, 30 Cal.Rptr. 619.)   The trial court said, “All right, we can forget about that,” but no request was made to strike the officer's testimony, and no request was made to admonish the jury.   The Court of Appeal reversed the judgment.  “We are of the opinion that an admonition of the court to the jury to disregard the testimony in question would have been unavailing and that it is of no consequence that none was given or requested.”  (Id., at p. 225, 30 Cal.Rptr. 619.)  “It is the effect of the officer's statement, and not the motive behind it, which is determinative of the question whether the case of defendant was substantially impaired.”  (Id., at p. 227, 30 Cal.Rptr. 619.)   The court took especial note of the fact that the officer's testimony had not been planned by the prosecutor.  “[¶] It seems evident that the district attorney knew what was in the memorandum from which the officer was testifying, and that he was cautioning the officer to omit the statement of defendant that he had been charged with contributing to the delinquency of a minor.   It appears clearly from the record that such was the purpose of the district attorney, and that he expected that the witness would omit the objectionable statement.”  (Id., at p. 225, 30 Cal.Rptr. 619.)

On the other hand, in People v. Curtis (1965) 232 Cal.App.2d 859, 43 Cal.Rptr. 286, defense counsel, in cross-examining a prosecution witness, suddenly encountered the statement that “․ I also knew of his [the defendant's] criminal record.”  (Id., at p. 867, 43 Cal.Rptr. 286.)   Defense counsel asked for an admonition which, a sentence or two later, was granted:  “Well, the jury will disregard that last statement.”  (Ibid.)  Then defense counsel moved for a mistrial, which was denied.   On appeal from the judgment of conviction, the Court of Appeal held that “[t]he trial judge was justified in his denial of defendant's motion for mistrial.   He had instructed the jury to disregard the nonresponsive reply regarding defendant's criminal record and, although he had inadvertently failed to rule on the motion to strike, there was effectually a granting of the motion and the jury would have so understood it.”  (Ibid.)  While conceding error (id., at p. 868, 43 Cal.Rptr. 286), the appellate court found the error harmless (id., at p. 871, 43 Cal.Rptr. 286).

In People v. Szarvas (1983) 142 Cal.App.3d 511, 191 Cal.Rptr. 117 the defendant was convicted of grand theft, i.e., copying commercial recordings without the permission of the record companies.   At trial a prosecution investigator testified that the defendant had between 500 and 700 “bootleg records” in his store.   At the conclusion of the defense case the trial court gave a lengthy admonition to the jury, telling them to disregard any testimony or evidence concerning “bootleg records.”   On appeal from the judgment of conviction, the defendant claimed error in the inadequacy of the admonition, citing People v. Roof, supra, 216 Cal.App.2d 222, 30 Cal.Rptr. 619.   The Szarvas court disagreed, saying that the defendant's reliance on Roof was “misplaced.”  (People v. Szarvas, supra, 142 Cal.App.3d at p. 524, 191 Cal.Rptr. 117.)  “[I]n the case at bench, the testimony only related to possession of bootleg records.   This is quite different from the risk of prejudicing the jurors' minds with a prior crime.”  (Ibid.)

The case before us shares some particulars with, but is not totally consistent with, the cases just cited.   First:  It does not appear from the record that the prosecutor purposefully sought the “ten cases” testimony from Officer Porras.   In the first instance the prosecutor asked Porras “what went through your mind” when he heard the original broadcast.   Perhaps the prosecutor meant to establish probable cause for arrest;  but probable cause does not amount to a conviction, and if Porras had simply said “There was a familiar ring about the method of operation,” no objection would have been sustainable.   In any event the court's admonition to the jury was, by trial counsel's own statement, satisfactory.   In the second instance Porras' statement about the “ten cases” came quite unexpectedly, not in response to a prosecutor's question.   The court's admonition was prompt, specific, and it reinforced the previous admonition.

Second:  The prosecution's case was quite strong.   Witnesses from four commercial establishments and one residence testified to Valentine's system and identified Valentine as the culprit.   Valentine himself bragged about having “conned a thousand people.”   No evidence was presented for the defense.   With six solid incidents properly presented to the jury, we cannot think that allusion to other incidents affected the jury's verdict.

Third:  What came before the jury in this case (prior to admonitions) was not a statement or admission of uncharged crimes, but rather Officer Porras' suspicion that Valentine had committed other swindles.   Apparently Porras had encountered a number of similar cases, but he did not know that Valentine was the offender.   The trial judge quite correctly cut off Porras' speculations and instructed the jury to disregard them.   No evidence of uncharged crimes ever reached the jury.

We do not condone the courtroom conduct of Officer Porras, whether it was willful or witless.   Reference to the “ten cases” plainly was error, and the trial court recognized it as such.   Law enforcement officers would be well advised to heed a trial judge's ruling which prohibits allusion to specified facts.

 Nevertheless on balance we hold the error harmless.   The prosecution's case was strong, and two admonitions were better than one.  “[A]lthough it is not always possible to cure error [by admonition], for example, where the objectionable evidence goes to the main issue and the proof of guilt is not clear and convincing, the jury, under ordinary circumstances, is presumed to obey the court's instructions and disregard the evidence.”  (People v. Duncan (1960) 53 Cal.2d 803, 818, 3 Cal.Rptr. 351, 350 P.2d 103;  accord, People v. Szarvas, supra, 142 Cal.App.3d at p. 524, 191 Cal.Rptr. 117.)   Even if the “ten cases” had never been mentioned, we cannot perceive that Valentine would have obtained a more favorable result at trial.  (Cal. Const., art. VI, § 13;  People v. Watson (1956) 46 Cal.2d 818, 835–836, 299 P.2d 243.)

VI.

Valentine's final contention is that he should have been convicted, if at all, of “petty fraud” under Penal Code section 532, rather than of burglary (Pen.Code, § 459) or petit theft with prior conviction (Pen.Code, § 666).   He relies principally upon the rule that a defendant cannot be prosecuted under a general criminal statute when a special statute prohibits the same activity.  (See People v. Randono (1973) 32 Cal.App.3d 164, 179, 108 Cal.Rptr. 326.)   In evaluating this proposition we begin by examining a bit of statutory history.

Penal Code section 459 (the burglary statute) was enacted in 1872, and ever since then has prohibited entry into specified enclosures “with intent to commit grand or petit larceny or any felony․”  Penal Code section 484 (the larceny statute) also was enacted in 1872, and defined larceny as “the felonious stealing, taking, carrying, leading, or driving away the personal property of another.”  Penal Code section 532 (the “fraud” statute), enacted in 1872, underwent two amendments before coming to rest.   Unchanged since 1905, that statute declares that “[e]very person who knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal, ․ is punishable in the same manner and to the same extent as for larceny of the money or property so obtained.”  (Cal.Stats., 1905, ch. 523, § 4, p. 685.)

In 1927 the Legislature amended Penal Code section 484 (formerly the larceny statute) to make larceny “theft,” and to include within the definition of “theft” the clause “knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property․”  (Cal.Stats., 1927, ch. 619, § 1, p. 1046.)   At the same time the Legislature enacted Penal Code section 490a, which provides that “[w]herever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word ‘theft’ were substituted therefor.”   (Cal.Stats., 1927, ch. 619, § 7, p. 1047.)   The purpose of the amendment was “merely to amalgamate the crimes of larceny, embezzlement, false pretenses and kindred offenses under the cognomen of theft.   No elements of the former crimes have been changed by addition or subtraction.”  (People v. Myers (1929) 206 Cal. 480, 483, 275 P. 219.)   But Penal Code section 459 (the burglary statute) and Penal Code section 532 (the “fraud” statute) remained unchanged.2

As amended, Penal Code section 484 (now the theft statute) contains language (“knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property”) which is virtually identical to that found in Penal Code section 532 (“knowingly and designedly, by any false or fraudulent representation or pretense, defrauds any other person of money, labor, or property, whether real or personal”).   Comparing the two statutes, one Court of Appeal has held:  “[¶] A comparison of the language contained in section 532 with that employed in section 484, as the latter was amended by the statute of 1927, demonstrates the fact that to the extent that section 484 deals with the criminal offense of obtaining money, property or labor by false pretense, the two statutes are nearly identical one with the other.   So limited, and considered thus either as an entirety, or in any one of the said several provisions of each of such statutes, no repugnancy nor inconsistency may be discovered to exist between them.   The object or purpose of the two statutes is identical one with the other.   And to the extent indicated by the sameness or the similarity of language and construction of the two statutes, it would seem uncontrovertible that the applicable provisions of section 484 have superseded, or in effect, repealed the identical provisions of section 532.”  (People v. Carter (1933) 131 Cal.App. 177, 182, 21 P.2d 129.)

 We think the reasoning of the Carter opinion is sound, and that it disposes of Valentine's argument concerning the special versus the general statute.   Here there is no “special” statute;  Penal Code sections 484 and 532, insofar as they describe the crime of obtaining money or property by false pretenses, are virtually identical.   The duplication of statutes does not make one “general” and the other “special.”

Valentine points to a number of cases which have held that offenses involving credit cards could only be prosecuted under the credit card statute, formerly Penal Code section 484a.  (E.g., People v. Ali (1967) 66 Cal.2d 277, 57 Cal.Rptr. 348, 424 P.2d 932;  In re Greenfield (1970) 11 Cal.App.3d 536, 89 Cal.Rptr. 847 [based on events which occurred in 1966];  People v. Scott (1968) 259 Cal.App.2d 589, 66 Cal.Rptr. 432;  People v. Churchill (1967) 255 Cal.App.2d 448, 63 Cal.Rptr. 312;  People v. Swann (1963) 213 Cal.App.2d 447, 28 Cal.Rptr. 830.)   Those cases were rendered obsolete in 1967, when the Legislature reorganized the penal statutes relating to credit cards, and specifically stated:  “This act shall not be construed to preclude the applicability of any other provision of the criminal law of this state which presently applies or may in the future apply to any transaction which violates this act.”  (Cal.Stats., 1967, ch. 1395, § 8, p. 3260;  see People v. Gingles (1973) 32 Cal.App.3d 1030, 1036–1038, 108 Cal.Rptr. 744.)

Valentine also points to other cases in which it has been held that specific statutes preempt the general theft statute.  (E.g., People v. Ruster (1976) 16 Cal.3d 690, 129 Cal.Rptr. 153, 548 P.2d 353 [unemployment insurance fraud];  People v. Gilbert (1969) 1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580 [welfare fraud];  Finn v. Superior Court (1984) 156 Cal.App.3d 268, 202 Cal.Rptr. 732 [fraud in sale of mobile home].)  But each of those cases is distinguishable from this one, for the simple reason that the specific statutes there discussed were not repealed by the 1927 amendment to Penal Code section 484.

In People v. Dingle (1985) 174 Cal.App.3d 21, 219 Cal.Rptr. 707 the defendant was convicted of murder, rape, and burglary.   His conviction was reversed because of the erroneous admission of his confession.   For guidance on retrial the appellate court addressed the burglary question.   The defendant was charged with entering his murder victim's home, placing a long-distance telephone call, and charging the cost to his victim's account.  Penal Code section 502.7, subdivision (a)(1), specifically covered that conduct.   Nevertheless, the appellate court held that such conduct could amount to a burglary.  “We believe the act of defrauding specified in section 502.7, subdivision (a)(1) is a theft akin to false pretenses.   Thus, that act is sufficient to satisfy the theft element in an allegation of burglary and the court need instruct only in the language of section 502.7.”  (Id., at p. 30, 219 Cal.Rptr. 707.)

 In this case there can be no question that Valentine obtained money by means of false pretenses.  (See People v. Shearer (1927) 83 Cal.App. 321, 331–332, 256 P. 611 [money paid for interest in plant held obtained by false pretenses, not by larceny].)  Obtaining money by false pretenses is a form of theft, as is larceny.  (People v. Myers, supra, 206 Cal. at p. 483, 275 P. 219;  Pen.Code, § 490a.)   Whoever enters a specified enclosure with intent to commit larceny (i.e., theft) is guilty of burglary.  (Pen.Code, § 459.)   It follows that whoever enters with intent to commit a swindle can be convicted of burglary, if the necessary intent is proved.

Accordingly the judgment is affirmed.

FOOTNOTES

1.   During the direct examination of Officer Porras at trial, Valentine raised two objections which we discuss in section V of this opinion, post.

2.   In 1947 Penal Code section 459 was amended again, to expand the number of enclosures which could be entered with burglarious intent.  (Cal.Stats., 1947, ch. 1052, § 1, p. 2452.)

BRAUER, Associate Justice.

AGLIANO, P.J., and CAPACCIOLI, J., concur.