People v. Cole

Opinion

KEPPY, J. Defendant was charged by information with grand theft, a violation of Penal Code section 487, subdivision 1. Defendant and all counsel waived a jury trial and the cause was submitted on the transcript of the preliminary hearing along with additional evidence and exhibits presented by the defense. Defendant was found guilty and a motion for a new trial was denied. The court ordered the defendant to undergo a 90-day observation period pursuant to section 1203.03, Penal Code. Following this period defendant was returned to the trial court, proceedings were suspended and probation granted. The appeal is from the order granting probation, deemed to be a final judgment. (Pen. Code, § 1237).

Defendant concedes that on a conflicting record there is substantial evidence to support the conviction of grand theft. His only contention on appeal is that the prosecution was collaterally estopped from presenting [334]the evidence which supports the verdict1 by the findings and adjudication in a bankruptcy proceeding in federal court.

By the prosecution evidence the following was proved: that defendant, an equipment dealer, took a used fork lift valued at $10,9002 3on consignment to sell for Wilmington Lumber Company; that Gumming, who was in the lumber business, agreed to buy it on a nondown-payment basis for $12,000; that defendant secured financing for Gumming through U.M. & M. Credit Corporation; that defendant set up a conditional sale contract for $19,000 explaining to Gumming that the difference was a fictitious down payment included to make the contract look suitable to U.M. & M.; that it was customary in the vending of fork lifts for dealer-sellers like defendant to have clear title and for financing agencies like U.M. & M., when nothing was said, to assume that a seller had such title; that the U.M. & M. contract form used by the parties recited that defendant had title; that U.M. & M. delivered its check for $12,000 to defendant; that defendant, intending to defraud U.M. & M., did not turn the funds over to Wilmington, but deposited them in his account against which, known to defendant, there were large checks outstanding; that Gumming defaulted; that defendant, without himself letting U.M. & M. know, and urging Gumming not to let U.M. & M. know, took the fork lift back, made, but promptly failed to consummate an agreement to buy the fork lift from Wilmington himself, and then turned it back to Wilmington who, not knowing of U.M. & M.’s position, shipped it to its head office out of state; that through this maneuver defendant stole $12,500 from U.M. & M.