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Name: People v. Whitmer
Case #: B231038
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 10/21/2014

Although a motorcycle is not an “automobile” under Penal Code section 487, subdivision (d), conviction for theft of motorcycle affirmed because defendant suffered no prejudice. On remand from the California Supreme Court (People v. Whitmer (2013) 59 Cal.4th 733 [finding that a defendant may be convicted of multiple thefts based on separate counts of theft, even if committed pursuant to a single scheme]), Whitmer challenged his convictions for theft of motorcycles and making false financial statements. Held: Reversed in part. Whitmer was a finance manager for a dealership. In conjunction with others, he processed false sales documents for 20 motorcycles, ATVs and dirt bikes, for which the dealership was not paid. He was convicted of 20 counts of theft under Penal Code section 487, subdivision (d), which makes theft of an automobile grand theft. The term “automobile” in subdivision (d) does not include all motor vehicles; it is ordinarily defined to mean a four-wheeled self-propelled vehicle designed to transport people. There is no evidence the Legislature intended the term to be broadly construed as any vehicle. However, Whitmer suffered no prejudice from the charging error because the jury was instructed he could be convicted of grand theft under section 487 if he took property valued at more than $400 (Pen. Code, § 487, subd. (a)) or took an automobile or motorcycle. Appellant raised no objection to either theory, so impliedly consented to submission of both theories to the jury. Here, Whitmer was convicted based on a legally valid theory because the evidence reflected that none of the vehicles was valued at less than $9,100, or more than $22,000. The jury also made a special finding that Whitmer had taken property worth more than $200,000.

Whitmer’s convictions for making false financial statements need not be reversed as lesser included offenses of the grand thefts. The application of the elements test reflects that grand theft, whether of property exceeding a value of $400 or by larceny or trick, may be committed without submission of a written false financial statement. Thus, making false financial statements is not a lesser included offense of grand theft.

Sufficient evidence supports Whitmer’s convictions for grand theft. Because the Supreme Court’s decision in Whitmer applies prospectively, appellant may be convicted of only one count of grand theft. His sufficiency claim fails because there is ample evidence he directly perpetrated all of the thefts.

The evidence did not support all of Whitmer’s convictions for making false financial statements. Whitmer challenged his convictions for making false financial statements that were based on credit card transactions. To violate Penal Code section 532a, a defendant must knowingly make a false financial statement in writing intending that it be relied upon as proving an ability to pay. The evidence reflected no such representations, requiring reversal of those counts.