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Name: People v. Whitmer
Case #: B231038
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 01/29/2013
Subsequent History: Review granted 5/1/2013: S208843

Under People v. Bailey (1961) 55 Cal.2d 514, numerous grand theft counts may be brought based on a series of distinct and separate thefts. Appellant was convicted of 20 counts of grand theft and 20 counts of making false financial statements based on his involvement in the fraudulent sale of motorcycles and dirt bikes at a dealership. He advanced multiple challenges to his convictions on appeal. Held: Affirmed in part; reversed in part. In Bailey the Supreme Court determined the circumstances under which a series of petty thefts could be aggregated to constitute grand theft. However, it also discussed when a series of thefts could be charged as separate offenses, and this was a component of its holding. Declining to follow People v. Kronemyer (1987) 189 Cal.App.3d 314, the Court of Appeal held that a defendant may be convicted of multiple counts where the thefts were separate and distinct and not committed pursuant to a single intent or plan. That was the case here, where the thefts involved multiple vehicles, dates, fictitious buyers, and separate paperwork.

Although grand theft of an automobile does not encompass motorcycles, appellant suffered no prejudice from the charging of grand theft of automobiles. Grand theft of “automobiles” under Penal Code section 487, subdivision (d)(1), which does not require that the vehicle have a value in excess of $400, does not encompass all motor vehicles. However, the errors in the information, instruction, and argument to the effect that grand theft of an automobile included motorcycles, was harmless. Appellant was properly convicted of grand theft of property worth more than $400 based on the “informal amendment” doctrine, which recognizes the information may be amended without written alterations. The jury was instructed on alternate grand theft theories based on the value of the property and the theft of an automobile and appellant never objected to these alternate theories.

The presentation of a legally erroneous theory does not require reversal. Using the rule propounded in People v. Guiton (1993) 4 Cal.4th 1116, the record revealed the jury convicted appellant based on a legally adequate theory, i.e., grand theft based on taking property worth over $400, as the evidence proved no vehicle was worth less than $9,100.

Making false financial statements under Penal Code section 532a, subdivision (1) is not a lesser included offense of grand theft.

There was insufficient evidence of 14 of the counts of making false financial statements. The offense of making false financial statements (Pen. Code, § 532a) includes the element of a false statement regarding ability to pay. Use of a fictitious name alone does not establish the offense absent a false representation affirming the buyer’s ability to pay, which was absent here.