People v. Serna

MOORE, P. J.

The plaintiff appeals from an order setting aside the information wherein Serna was accused of grand theft. Defendant’s motion was made upon the grounds that: (1) Defendant was committed without probable cause; (2) that a public offense had not been charged; and (3) that the transcript of the preliminary trial disclosed at most a series of petty thefts (Pen. Code, sec. 995).

Defendant is an alien residing in Los Angeles County. He applied to the State Relief Administration for unemployment relief. His application was filed October 4, 1937, in which he made the statement that he was unemployed and that no member of his family had any source of income. However, at the time of his application, his wife had been employed since the preceding September by the California Walnut Growers Association, with whom she continued until April, 1938, and through which she earned the sum of $459.89. The relief furnished defendant amounted to $347.76 which was paid to defendant in semi-monthly installments of $28.98 each.

The sole question for determination as stated by the Attorney-General is “whether the defendant can be charged with the crime of grand theft or whether he is only chargeable with a series of petty thefts.” Because of the fact that the total sum received from the state exceeded $200, which is the value necessary to constitute the crime of grand theft, and because defendant made a written application containing a false statement prior to receiving any relief, the argument is made that all sums received by defendant from the State Relief Administration, after having made his application, are parts of one plan, one design, one taking from the state. In support of this contention, appellant cites section 484 of the Penal Code and certain decisions.

(People

v.

Sing,

42 Cal. App. 385 [183 Pac. 865];

People

v.

Dillon,

1 Cal. App. (2d) 224 [36 Pac. (2d) 416] ;

People

v.

Fleming,

220 Cal. 601, 610 [32 Pac. (2d) 593].) Where a party commits a series of successive acts of taking as “the result of a single felonious intent, moved by a single, unintermittent force, such series constitutes only one.continuous act”, one offense against the state.