People v. Whight

36 Cal. App. 4th 1143, 43 Cal. Rptr. 2d 163 (1995)



 False pretense need not be the sole reason for the victim to part with his money or property. The false pretense or representation must have materially influenced the owner to part with his property, but the false pretense need not be the sole inducing cause. The victim need not investigate. The party so deceived is none the less defrauded of his money although he might have made an investigation and determined that the representations were false. But the rule is equally well established that, where the victim does investigate the representation and relies solely on his investigation rather than upon defendant's representation, the crime of theft by false pretenses is not made out.


Defendant discovered that the automated teller machine (ATM) card connected to his defunct checking account could still be used to obtain cash at four local stores. For several weeks he availed himself freely of this happenstance to obtain thousands of dollars. This led to his conviction by a jury of four counts of fraudulent use of an access card or "ATM" theft ( Pen. Code, § 484g; undesignated references are to this code) and four counts of grand theft by false pretenses (§ 484, subd. (a)487532). In a bench trial, the court found true the allegation that defendant had served a prior prison term. (§ 667.5, subd. (b).) Defendant was sentenced to state prison for a total unstayed term of six years. The court also imposed a $ 500 restitution fine and ordered $ 19,460 in restitution to be paid to Safeway pursuant to Government Code former section 13967, subdivision (c).


Were convictions for ATM theft considered fatally flawed where defendant was not given notice that his card had been suspended?




The court held that the judgment convicting defendant for four counts of ATM theft was reversed because there was no evidence that the bank gave written notice to defendant that the ATM card had been suspended. The court also held that the judgment convicting him of four counts of grand theft by false pretense was affirmed. The court found that the stores had nothing to rely upon except defendant's implicit representation and that the store elected to take the risk and to rely solely on defendant's representation. The court held that the element of reliance or causation was indisputably established.

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