People v. Whight (36 Cal. App. 4th 1143, 1995)

Opinion

SPARKS, Acting P. J.

Defendant Theodore Whight discovered that the automated teller machine (ATM) card connected to his defunct checking account could still be used to obtain cash at four local Safeway stores. For several weeks he availed himself freely of this happenstance to obtain thousands of dollars. This led to his conviction by a jury of four counts of fraudulent use of an access card or “ATM” theft (Pen. Code, § 484g; undesignated references are to this code) and four counts of grand theft by false pretenses (§§ 484, subd. (a), 487, 532). In a bench trial, the court found true the allegation that defendant had served a prior prison term. (§ 667.5, subd. (b).) Defendant was sentenced to state prison for a total unstayed term of six years. The court also imposed a $500 restitution fine and ordered $19,460 in restitution to be paid to Safeway pursuant to Government Code former section 13967, subdivision (c).

We consider two questions in the published portion of this opinion. The first is whether Safeway relied upon defendant’s misrepresentations within the meaning of the crime of grand theft by false pretenses. Defendant was able to obtain large amounts of cash from the Safeway stores because the computer verification system was not working properly. Defendant contends that the only misrepresentation he made was that his ATM was valid and Safeway did not rely on this but rather upon the computer authorization. For the reasons which follow, we reject the claim.

The second relates to the ATM convictions. Defendant contends his convictions for ATM theft are fatally flawed because the evidence is insufficient to establish that the bank gave written notice of the revocation of his ATM card. We agree and therefore reverse the convictions for ATM theft.

In the unpublished portion of the opinion, we consider and reject defendant’s claim that only one crime of grand theft by false pretenses was committed because there was only one victim. Thus, we will affirm the four convictions for grand theft by false pretenses. In that unpublished portion we also hold that the $500 restitution fine was improperly imposed but reject defendant’s remaining sentencing contentions.

The Crimes

Defendant opened a regular checking account at Tri Counties Bank (the bank) in Chico in January 1991. He was issued an ATM card which bore no expiration date. This card did not offer any overdraft protection and could be used only with the checking account. Thereafter, monthly statements for his checking account were sent to defendant by the bank at his post office box. Defendant originally deposited $3,750.99 into his checking account. By June 1991 defendant’s account was overdrawn by $6.17. In accordance with the bank’s normal practice, defendant was mailed a letter stating that his account was overdrawn, that his bank statement and canceled checks would be held at the bank and if no deposits were made to cover the shortage, the account would be closed. As a bank employee explained it, the letter advised defendant that “if a deposit is not made the account will be closed before the next statement date. Please contact customer service, and it lists a phone number. We enclosed with this same, this letter, letting the customer know that the account will be closed if a deposit is not made to bring the account either to a zero balance to close it or to a positive balance to keep it open.” On July 10,1991, no deposit having been made, the bank closed the account because of the negative balance. From the bank’s viewpoint, when defendant’s checking account was closed, his ATM card was simultaneously canceled and revoked.

Despite the cancellation by the bank, defendant continued to use his ATM card, mainly at local Safeway markets. Safeway allows customers to make purchases and receive cash back by using ATM cards. Safeway’s practice was to verify the cards through the use of a computer system operated by Wells Fargo Bank (Wells Fargo). Wells Fargo would report a code to Safeway which approved or disapproved of the proposed transaction. In some cases Wells Fargo would not be able to link up with the customer’s bank or otherwise verify the card. If this lasted for more than about 30 seconds, Wells Fargo would report a “stand in” code to Safeway. Upon receipt of this code, Safeway would approve the transaction.

It appears that there was an error in the Wells Fargo computer, which repeatedly failed to notify Safeway that defendant’s ATM card was invalid. In March and April 1992, defendant was able to use his ATM card at four different Safeway markets in Butte County. He would purchase a small item, then use his ATM card to pay for the item and to receive cash back, usually $200 at a time, often more than once a day. He received a total of over $19,000. During that time his ATM card was rejected at two other (non-Safeway) markets.

Typically, defendant went to the Safeway stores at differing hours and when he used his card he did so quickly and attempted to conceal it from the view of the store employees. At the time of his arrest, defendant admitted knowing his checking account was closed. A search of his residence revealed Safeway receipts detailing the ATM transactions, a checkbook which did not contain any recent notations and over $5,000 in cash.

Defendant did not testify, but after his arrest he told an interrogating officer he had an open account with the bank and that in January 1992, he deposited $50,000 in the account, but could not say where he obtained those funds. He believed a computer “hacker” employed by Safeway had altered his account balance. Not surprisingly, the jury rejected this secondhand explanation and convicted defendant of all the charges.

Discussion

I. ATM Thefts

Defendant first contends the evidence is insufficient to establish that he received adequate notice that his ATM card had been revoked. We agree.

The second amended information charged defendant with four counts of violating section 484g, commonly referred to as “ATM card theft.” It alleged that defendant “with intent to defraud use[d] an access card which [he] knew was forged, expired and revoked for the purpose of obtaining money, goods, services and anything else of value.” Despite this catch-all pleading, defendant’s card was neither expired (see § 484d, subd. (3)) nor forged. Instead, the People’s sole theory at trial was that defendant’s ATM card had been “revoked” and the jury was instructed only on this component of the crime.

The statute contains a special, technical definition of the term “revoked.” “ ‘Revoked access card’ means an access card which is no longer authorized for use by the issuer, that authorization having been suspended or terminated and written notice thereof having been given to the cardholder.” (§ 484d, subd. (7), italics added.) The emphasized portion of the statute requires that the issuer give written notice to the cardholder that authorization to use the card has been suspended or terminated.

Here the uncontradicted evidence established that the bank sent only a warning letter threatening to close the account. The bank later closed the account and canceled the card. But no evidence was adduced showing that the bank ever gave written notice to defendant that either his card had been suspended or terminated or that his checking account had been closed. Struggling with the issue, the Attorney General suggests that it is “a reasonable inference that [defendant] was sent the closing statement, like all previous account statements, by Tri Counties Bank in the regular course of business.” But there was no evidence that the bank, in the regular course of its business, sent statements to depositors after their accounts had been closed. Even more damaging to the prosecution, there is no evidence that a monthly checking account statement would say anything about the ATM card, much less that its use had been suspended or terminated.

In order to prove the type of ATM theft charged in this case, the prosecution was required to prove that defendant used the card knowing it had been revoked. For purpose of this crime, a card is revoked if, and only if, the issuer has (1) suspended or terminated its use, and (2) “written notice thereof [has] been given to the cardholder.” (§ 484d, subd. (7).) Because there is no evidence that the bank gave written notice to defendant that the ATM card had been suspended or terminated, the convictions for violation of section 484g cannot stand.

II. False Pretenses

Defendant next contends his convictions for grand theft by false pretense must be reversed because “Safeway relied on the code issued by Wells Fargo, rather than [defendant’s] presentation of his ATM card, in approving [defendant’s] request for money.” This leaky contention cannot hold water.

Theft by false pretenses is committed by “[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, . . (§ 532, subd. (a).)

“To support a conviction of theft for obtaining property by false pretenses, it must be shown: (1) that the defendant made a false pretense or representation, (2) that the representation was made with intent to defraud the owner of his property, and (3) that the owner was in fact defrauded in that he parted with his property in reliance upon the representation.” (Perry v. Superior Court (1962) 57 Cal.2d 276, 282-283 [19 Cal.Rptr. 1, 368 P.2d 529]; see also People v. Fujita (1974) 43 Cal.App.3d 454, 467 [117 Cal.Rptr. 757]; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Property, § 602(3), p. 681; Fricke & Alarcon, Cal. Criminal Law (10th ed. 1970) Larceny—False Pretenses, p. 293.) We are here concerned with causation or reliance.

The representation need not be in the form of an oral or written statement; it may also consist of conduct. “The false pretense may consist in any act, word, symbol, or token calculated and intended to deceive. It may be either express or implied from words or conduct.” (People v. Randono (1973) 32 Cal.App.3d 164, 174 [108 Cal.Rptr. 326].) Thus, when defendant proffered his ATM card he impliedly represented, falsely, that it was valid. (See People v. Ali (1967) 66 Cal.2d 277, 281 [57 Cal.Rptr. 348, 424 P.2d 932]; Blackledge v. United States (D.C.App. 1982) 447 A.2d 46, 51-52. See also Comment (1960) 48 Cal.L.Rev. 459, 491.) Reliance on a false representation may be, and in some cases must be, inferred from the evidence. (Perry v. Superior Court, supra, 57 Cal.2d at p. 285; People v. Hong Quin Moon (1891) 92 Cal. 41, 42 [27 P. 1096].) However, if the evidence establishes that the victim did not rely on the false pretense, a conviction cannot stand. Defendant maintains that because the Safeway employees did not merely hand him cash upon presentation of the card, but instead verified the card through the computer system, Safeway did not actually rely on his implied representation and therefore he did not commit the crime of theft by false pretenses. In short, he urges there was no substantial evidence of the reliance element of the crime.

It is true that “[f]or false pretenses it is necessary that the swindler’s misrepresentation cause the victim to pass title to his property or money to the swindler. Looking at the matter from the point of view of the victim, the same thought may be expressed thus: for false pretenses it is required that the victim pass title to his property in reliance upon the swindler’s misrepresentation.” (2 LaFave & Scott, Substantive Criminal Law (1986) False Pretenses, § 8.7(c), pp. 390-391, italics in original and fn. omitted.) Thus, “[e]ven though a false representation is made and property obtained by the person making the representation, no prosecution will lie where the complainant parted with his property to the accused from some cause other than such false representation since to constitute this offense the representation must have been a material element in proximately causing the complainant to part with his property and without which he would not have done so. . . .” (Fricke & Alarcon, op. cit. supra, p. 295, citations omitted; see also 2 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against Property, § 612, at p. 695.) Consequently, “[i]f the owner did not rely on the false pretense in parting with his property, then a conviction cannot be sustained.” (People v. Smith (1984) 155 Cal.App.3d 1103,1149 [203 Cal.Rptr. 196]; see also Note, Attempted Grand Theft by False Pretense Where Victim Is Not Deceived (1960) 33 So.Cal.L.Rev. 227; Annot., False Pretense—Attempts (1966) 6 A.L.R.3d 241; Annot., False Pretense—Failure to Deceive (1934) 89 A.L.R. 342.)

As Witkin and Epstein note, the reliance or causation element of the crime may be found lacking in three typical situations: “(1) Where the complainant knew the representation was false, or did not believe it to be true. [Citation.] m (2) Where, even if he believed it, he did not rely on it, but investigated for himself or sought and relied on other advice. [Citations.] [