People v. Lorenzo

California Court of Appeal Nov 4, 1976 No. A. 14224Published

Before: Cole

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Holding. The court held that a conviction for theft by false pretenses cannot be sustained when the victim's agent is aware of the fraud and does not rely on the defendant's misrepresentations; however, the evidence supports a conviction for attempted theft.

Issues

Whether theft by false pretenses requires reliance by the victim on the defendant's fraudulent conduct.
Whether larceny by trick requires reliance by the victim on the defendant's fraudulent conduct.
Whether a defendant can be convicted of attempted theft when the victim's agent is aware of the fraud and does not rely on it.

Disposition. modified and affirmed; remanded for resentencing

Quotations verified verbatim against the opinion

“The manager at no time relied upon defendant's conduct. Since the manager is the agent of the victim-market owner and his knowledge is that of the victim (Civ. Code, § 2332) we cannot hold on these facts that theft by false pretenses was established.”

“We are of the view, however, that the evidence amply establishes defendant's attempt to commit theft. Reliance is not an element of that offense.”

64 Cal.App.3d 43 (1976) 135 Cal. Rptr. 337 THE PEOPLE, Plaintiff and Respondent,

FRED LORENZO, Defendant and Appellant.

Docket No. A. 14224. Court of Appeals of California, Appellate Department Superior Court, Los Angeles.

November 4, 1976. [45] COUNSEL

Morris L. Davidson for Defendant and Appellant.

John K. Van de Kamp, District Attorney, Harry B. Sondheim and Sterling S. Suga, Deputy District Attorneys, for Plaintiff and Respondent.

OPINION

COLE, Acting P.J.

Defendant appeals from his conviction of theft, in violation of Penal Code section 484, subdivision (a).

Defendant was observed by the manager of a Von's market to switch price tags from one kind of glove to another kind of glove and also to switch price tags placed on chickens. The manager of the store stood five or six feet behind defendant as the latter went through the check-out counter. Defendant paid for a number of chickens, a pair of gloves and other merchandise. Defendant had no conversation with the check-out clerk. Defendant then wheeled the shopping cart into the parking lot where he was arrested by the manager. Among the merchandise in the cart was a pair of gloves which bore a price tag lower than their regular and correct price. Testimony also established that two of the chickens in [46] the cart had price tags on them which were for less amounts than should have been the case. Two other chickens handled by defendant but left by him in the store, and not taken to the check-out counter bore loose price tags that should have been on the two chickens in question which defendant "purchased."

In other words, the evidence convincingly showed (although defendant denied it to be the case) that defendant switched price tags so as to buy merchandise for less than its correct price.

People v. Lorenzo

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