People v. Curtin

Opinion

WERDEGAR, J.

—Dennis Sean Curtin was convicted of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)),

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grand theft (§ 487, former subd. 1) and forgery (§ 470), all arising out of a single incident in which he cashed a check at a bank by misrepresenting himself as one of the bank’s depositors and using a forged signature. He was sentenced to two years in state prison for the burglary, a concurrent term of two years for forgery, and a two-year term stayed under section 654 for theft. On appeal, he contends there was insufficient evidence to support the theft conviction on the only theory presented to the jury, larceny by trick, and the forgery sentence should also have been stayed under section 654.

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We agree with both contentions; accordingly, we reverse the theft conviction and order the judgment modified to reflect a stay of the sentence for forgery. In all other respects, the judgment is affirmed.

Facts

A bank teller identified defendant as the man who cashed an $810 check made out to Dan Hart, a depositor at the bank. Defendant presented a photographic identification card with Hart’s name and defendant’s photograph. The check was drawn on the account of Peter Post and signed “Peter Post.” Post, however, testified it was not his signature and he did not authorize any payment to defendant or Dan Hart. The check defendant cashed was from a new set Post had ordered but never received.

[531]

Discussion

The jury was instructed on only one theory of theft, theft by trick and device. The court gave CALJIC No. 14.05 (5th ed. 1988 bound vol.), which requires, inter alia, that in surrendering possession of the property, the victim of the theft “did not intend to transfer the ownership.” Defendant correctly contends there was no evidence to satisfy this element of the offense.

“Although the crimes of larceny by trick and device and obtaining property by false pretenses are much alike, they are aimed at different criminal acquisitive techniques. Larceny by trick and device is the appropriation of property, the possession of which was fraudulently acquired; obtaining property by false pretenses is the fraudulent or deceitful acquisition of both title and possession. [Citations.] In this state, these two offenses, with other larcenous crimes, have been consolidated into the single crime of theft (Pen. Code, § 484), but their elements have not been changed thereby. [Citations.]”