PEOPLE v. MANN (1993)

A jury found Allen Bernard Mann guilty of petty theft (Pen.Code,1 §§ 484/488) and Mann admitted three prior theft offenses.   The court sentenced him to the upper term of three years in prison for petty theft with a prior theft conviction (§§ 484/488, 666).   Mann appeals, contending his conviction must be reduced to attempted petty theft since no property was severed from the victim's possession.   Together with amicus curiae, he alternatively asserts he should be retried on the lesser included offense of attempted theft by false pretenses because he failed to fool the intended victim, rendering the theft incomplete.²  We reverse and remand for a new trial.

FACTUAL BACKGROUND

On February 10, 1992, salesperson Keri Hennessey was on duty in the basement of a Sears store.   She saw Mann get off the escalator empty-handed.   He took a comforter from a shelf, brought it to the cash register, and asked for a refund.   Hennessey inquired whether he had a receipt.   He said he did not have it with him.   Hennessey asked for a California driver's license.   Mann said he did not have one but had a Kentucky license.   Hennessey took the license, wrote the license number on a return slip, and asked Mann to fill out the slip.   He asked if he could look around because he might want to exchange the comforter for another one.

Mann went toward the back wall and Hennessey went upstairs the back way so he would not know where she was going.   She met a security guard and reported what Mann had done.   The security guard said he had seen it and told her to go back to the register.   She did so.   A security guard telephoned her and authorized her to take the comforter from Mann and give him money.

Mann approached the register with another comforter less expensive than the first and asked for an exchange.   Hennessey said since he did not have a receipt, she could not give him the extra cash back, but could only make an even exchange.   He said he wanted a refund and would have his wife come in later and choose a comforter.   Hennessey gave Mann a refund of around $86.90.

Mann left the register and headed toward the escalator.   Sears loss prevention manager Timothy Mabee and security agent James Dee, who had observed and taped Mann via a video camera, placed him under citizen's arrest, took him to the security office, and summoned the police.   Mabee recovered $86.47 in cash from Mann and a receipt memorializing the refund.

Mann told Mabee he had purchased the comforter for his mother sometime before Christmastime.   A few minutes later, he said he had bought it on February 6, 1992.   Mabee put the stock number of the comforter into the computer and learned that there had been no sales for that number on February 4 through 10;  the only activity was the return by Mann.

PROCEDURAL BACKGROUND

The information charged Mann with petty theft with three prior convictions.   At the close of the People's case, defense counsel made a motion for judgment of acquittal (§ 1118.1).   He argued Mann committed attempted petty theft by bringing the comforter to the register and asking for a refund;  he did not intend to take the comforter;  and although he intended to steal money by this subterfuge, because Sears employees knew what he was doing and consented to give him the money, there was no trespassory taking.   He requested an instruction on consent.

The prosecutor argued Mann committed larceny by taking the comforter from the shelf and claiming ownership with the intent to take and use it for his own purposes, either by leaving the store with it or obtaining a refund;  mere movement of the property was asportation;  removing the comforter from the display, handing it to the cashier, and requesting a refund constituted petty theft;  and Sears did not consent to the theft, consent was irrelevant, and it did not negate Mann's specific intent.   The prosecutor did not oppose the giving of an instruction on attempted petty theft as a lesser included offense if Mann requested this instruction.

The court denied the motion for judgment of acquittal, and instructed on attempted petty theft but not consent.   After the jury returned its verdict, defense counsel made a motion to reduce the conviction to attempted petty theft (§ 1181, subd. 6), arguing there was no asportation.   The People opposed the request.   The court took the motion under submission then apparently denied it.³

DISCUSSION

 Mann contends his conviction must be reduced to attempted petty theft since no property was severed from Sears's possession, or he should be retried on the lesser included offense of attempted theft by false pretenses because he failed to fool Sears, rendering the theft incomplete.

Section 484, subdivision (a) provides in pertinent part:

“Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, ․ or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, ․ is guilty of theft.”

This section, as amended in 1927, redefines theft “by consolidating within such definition various ‘criminal acquisitive techniques' which were the subject of different common-law-defined larcenous offenses.”  (People v. Darling (1964) 230 Cal.App.2d 615, 618, 41 Cal.Rptr. 219.)   This redefinition did not, however, change the elements of the included theft offenses.   (Ibid.)  “[A] judgment of conviction of theft, based on a general verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.”  (People v. Ashley (1954) 42 Cal.2d 246, 258, 267 P.2d 271.)  “Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an ‘unlawful taking’ has been proved.”   (Ibid.)

 Theft, “the felonious taking of the property of another without his consent with intent to deprive him thereof,” includes larceny and obtaining money by false pretenses.  (People v. Goodman (1958) 159 Cal.App.2d 54, 61, 323 P.2d 536.)   Larceny requires the taking of personal property from the owner's possession without consent;  asportation of that property;  and an intent, without claim of right, to deprive the owner of the property wholly and permanently.  (Callan v. Superior Court (1962) 204 Cal.App.2d 652, 667, 22 Cal.Rptr. 508.)   Theft by false pretenses occurs where the defendant makes a false representation with the intent to defraud the owner of his or her property, and the owner is in fact defrauded.  (People v. Ashley, supra, 42 Cal.2d at p. 259, 267 P.2d 271;  People v. Fujita (1974) 43 Cal.App.3d 454, 467, 117 Cal.Rptr. 757.)  “In other words, as in any other case of fraud, the injured party must have been induced to part with his property in reliance on the false representation.”  (People v. Lorenzo (1976) 64 Cal.App.3d Supp. 43, 46, 135 Cal.Rptr. 337.)  “The distinction between larceny and obtaining money or property by false pretenses turns on a question of title.”  (Callan v. Superior Court, supra, 204 Cal.App.2d at p. 668, 22 Cal.Rptr. 508.)   The defendant who obtains property by larceny does not obtain title, while the defendant who obtains property by false pretenses does obtain title.  (Perkins & Boyce, Criminal Law (3d ed. 1982) False Pretenses, § 4.C.1., pp. 374–375, 389;  La Fave & Scott, Substantive Criminal Law (1986) § 8.7(d), pp. 392–393.)

Here, the prosecutor's theory was that Mann had committed larceny by taking the comforter.   Conceivably, when Mann removed the comforter from the shelf and gave it to the cashier he intended to take it home with him (larceny) if he were unsuccessful in obtaining a cash refund (theft by false pretenses).   We need not resolve this issue, however.   Defense counsel requested an instruction concerning consent and in his motion for judgment of acquittal argued Mann committed the lesser offense of attempted theft by false pretenses.

 An attempt requires a specific intent to commit a crime and a direct, unequivocal act performed toward that end.  (People v. Camodeca (1959) 52 Cal.2d 142, 145, 338 P.2d 903.)   Mere preparation is insufficient.   (Ibid.)  “ ‘[T]here must be some appreciable fragment of the crime committed [and] it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.’ ”   (Ibid., citations omitted.)

In People v. Camodeca, supra, 52 Cal.2d 142, 338 P.2d 903, the defendant held a contract of sale and collected the monthly payments on William Murphy's bar.   He told Murphy that removing the name of Murphy's “common-law wife” from the contract and beer and wine license would require a “fix,” and that Department of Alcoholic Beverage Control charges against the bar could also be fixed if Murphy gave Camodeca $720 for persons in Sacramento.   Although there were in fact no reported violations, Murphy believed Camodeca's misrepresentations and unsuccessfully tried to raise the money.  (Id. at p. 144, 338 P.2d 903.)   The California Supreme Court affirmed Camodeca's conviction of attempted grand theft, noting his conduct went beyond preparation, the only other necessary act being his receipt of the money, and the evidence established specific intent to obtain money by false pretenses.   (Id. at pp. 145, 149, 338 P.2d 903.)   The court observed attempted theft by false pretenses does not require the intended victim be deceived by or rely on the misrepresentations.  (Id. at pp. 145–147, 338 P.2d 903.)

In People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43, 135 Cal.Rptr. 337, the manager of a market saw the defendant switch price tags from one kind of glove to another, switch price tags on chickens, pay for the chickens and gloves, then go to the parking lot where the manager arrested him.  (Id. at p. 45, 135 Cal.Rptr. 337.)   Found in Lorenzo's possession were a pair of gloves and two chickens with tags showing prices lower than the correct ones.  (Id. at pp. 45–46, 135 Cal.Rptr. 337.)   The reviewing court reduced Lorenzo's theft conviction to attempted theft, noting only the manager's alertness prevented consummation of the crime.  (Id. at pp. 45, 47–48, 135 Cal.Rptr. 337.)   It observed that Lorenzo did not commit theft by false pretenses because the manager failed to rely on his conduct;  he was aware Lorenzo had switched price tags and allowed him to consummate his scheme in order to arrest him.  (Id. at p. 47, 135 Cal.Rptr. 337.)

The facts in City of Kansas City v. Fritz (Mo.App.1980) 607 S.W.2d 837 are strikingly similar to the facts in the instant case.   In Fritz, the defendant entered Montgomery Ward, tore open a package of curtains, then took the package to a clerk and asked for a refund.   The clerk gave him a refund voucher and told him to cash it at the customer accommodation center.   Store employees, who had watched Fritz and were aware of what he was doing, watched him present the voucher and obtain cash, then apprehended him.  (Id. at p. 838.)   The reviewing court reversed Fritz's conviction of obtaining money by false pretenses, noting Ward's had not relied on his representation that he had purchased the curtains from Ward's since it knew he had simply removed them from the shelf.  (Id. at p. 839, citing People v. Lorenzo, supra, 64 Cal.App.3d Supp. 43, 135 Cal.Rptr. 337.)

Properly instructed the jury could have found Mann was guilty at most of an attempt.   The crime of theft by false pretenses was not completed because Sears, through its agents, knew the comforter was not Mann's, and failed to rely on his misrepresentations.  (People v. Lorenzo, supra, 64 Cal.App.3d Supp. at p. 47, 135 Cal.Rptr. 337;  People v. Fujita, supra, 43 Cal.App.3d at p. 467, 117 Cal.Rptr. 757.)   The jury could have found the crime of larceny was not completed because there was no asportation or there was no intent to steal the comforter, that is to permanently deprive the owner of it.   (Callan v. Superior Court, supra, 204 Cal.App.2d at p. 667, 22 Cal.Rptr. 508.)

 Furthermore, there is a factual impossibility of consummating the crime of theft by false pretenses where the intended victim is not deceived.   (People v. Camodeca, supra, 52 Cal.2d at p. 147, 338 P.2d 903;  cf. People v. Rojas (1961) 55 Cal.2d 252, 257, 10 Cal.Rptr. 465, 358 P.2d 921 [conviction of receiving stolen property reduced to attempt to receive stolen property where the property had already been recovered by the police when defendants received it].)  “The fact that defendant [is] mistaken regarding the external realities [does] not alter his intention, but simply [makes] it impossible to effectuate it.”  (People v. Rojas, supra, 55 Cal.2d at p. 257, 10 Cal.Rptr. 465, 358 P.2d 921, citing Hall, General Principles of Criminal Law (1947), p. 127.)  “All courts are in agreement that what is usually referred to as ‘factual impossibility’ is no defense to a charge of attempt.   That is, if what the defendant intends to accomplish is proscribed by the criminal law, but he is unable to bring about that result because of some circumstances unknown to him when he engaged in the attempt, then he may be convicted.”  (La Fave & Scott, Substantive Criminal Law, supra, § 6.3(a)(2), p. 42.)

On the evidence here, the jury could have found Mann guilty of attempted theft by false pretenses.   It is far less clear whether it could have found him guilty of attempted larceny because his state of mind at the cash register is unclear.   Given this possibility of two differing interpretations of the evidence, it would be inappropriate for us to exercise our authority under Penal Code section 1181, subdivision 6 to reduce the conviction.   However, because the lack of an instruction on attempted theft by false pretenses denied Mann an opportunity to be convicted of a lesser offense, we reverse and remand for a new trial.

DISPOSITION

Reversed and remanded for a new trial on attempted petty theft.⁴

HUFFMAN, Associate Justice.

BENKE, Acting P.J., and NARES, J., concur.