People v. Richerson

Opinion

ABBE, J.

This is an appeal from a conviction of grand theft as a result of the sale of mortgaged personal property with intent to defraud the mortgagee in violation of Penal Code section 538. The mortgaged property sold consisted of a truck, a compactor and “clam buckets.”

Appellant contends Penal Code section 538 is unconstitutionally vague. That section prohibits sale of mortgaged property permitted to be mortgaged by the provisions of section 2955 of the Civil Code. Appellant

[1008]

points out section 2955 of the Civil Code was repealed in 1963, about 19 years before the transactions for which appellant was convicted.

The repeal of section 2955 of the Civil Code, effective January 1, 1965, coincided with and was incidental to the enactment of the Commercial Code, also effective as of January 1, 1965. The property mortgaged by appellant fits into the description of property allowed to be mortgaged in both former Civil Code section 2955 and Commercial Code section 9102.

It is difficult to believe that there remains a person in this country who does not know that a motor vehicle can be mortgaged. Still, both article I, section 13 of the California Constitution and the Fourteenth Amendment to the United States Constitution declare that no person shall be deprived of life, liberty or property without due process of law. Due process requires, among other things, some level of definiteness in criminal statutes.

The California Supreme Court observed in

Burg

v.

Municipal Court

(1983) 35 Cal.3d 257, 269, footnote 15 [198 Cal.Rptr. 145, 673 P.2d 732], “. . . that due process has never been interpreted so strictly as to require . . . ‘actual’ notice . . .; at most, the cases require ‘fair notice.’ [Citations.]”

“ ‘Fair notice’ requires only that a violation be described with a ‘ “reasonable degree of certainty” ’ [citation] so that ‘ordinary people can understand what conduct is prohibited. ’ [Citation.] The notice provided must be such that prosecution does not ‘trap the innocent’ without ‘fair warning.’ [Citation.]”