Opinion Bank # O-207
NOTE: The text of the footnotes appear at the end of the document.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
Plaintiff and Respondent. A068092
RICHARD FRED FINAU, (Contra Costa County
Super. Ct. No. 941160-4)
Defendant and Appellant.
Richard Fred Finau appeals his conviction by jury trial of petty theft with a prior (Pen. Code, § 484. 666) [FOOTNOTE 1] and fraudulent use of another’s access card (§ 484f, subd. (2)). A prior prison term allegation was also found true. (§ 667.5, subd. (b).) He contends there is no substantial evidence of petty theft, and the trial court erred in refusing to instruct the jury on theft by false pretenses.
At approximately 5:00 p.m. on February 13, 1994, appellant entered the Tiger Shop of a Macy’s department store, where he was viewed on a surveillance camera by Macy’s security agent Mark Nagel. He was also seen by Timi Tumbaga, assistant manager of the Tiger Shop. Appellant and a companion were selecting merchandise. Appellant approached the cash register with a plaid shirt. said he was not quite ready, and waited for his companion to finish shopping. Thereafter the companion approached the cash register, gave two additional clothing items to appellant. and Tumbaga began to “ring up” the transaction. Appellant presented a credit card and Tumbaga asked him for photo identification which appellant was unable to produce. Tumbapa told appellant she needed to get the manager’s approval for use of the credit card. Instead, she telephoned store security. She then went into the back room with the credit card and returned approximately ten minutes later after talking with security. “Under the direction of [the] security agent,” Tumbaga completed the credit card transaction. She told appellant the transaction had been approved by the manager and handed him the sales check for his signature. She removed the sensors from the merchandise. She wrote “approved” on the sales check, and circled the approval code and validation of the credit card. The merchandise totaled $253.31. Appellant signed the sales check and Tumbaga returned the credit card to him.
Appellant and his companion then left Macy’s. Approximately thirty feet outside the store exit Nagel and another Macy’s security officer, Ryan Andelin, stopped appellant, identified themselves as security officers, grabbed him from in front and behind and asked to speak with him. Appellant was carrying, a Macy’s bag. Appellant started to struggle and tried to get away. Concord police officer Ivan Menchaca arrested appellant and transported him to the hospital for treatment of injuries to his arm sustained in the struggle.
Menandro Alvarez testified that appellant lived across the street from him, the credit card appellant used at Macy’s was his and he never gave appellant permission to use it. At some unspecified time Alvarez received a call from a Macy’s security officer regarding the credit card, after which he discovered the card was missing.
Appellant contends the evidence supports a conviction for attempted theft. not completed theft. In essence. he argues there is no substantial evidence of petty theft. He claims there was no theft because Macy’s personnel consented to the taking by determining he was not authorized to use the credit card, but processing the transaction anyway.
The People rejoin that there is no evidence that security personnel determined appellant was unauthorized to use the credit card but told Tumbaza to process the card anyway, no evidence that security personnel contacted the credit card company, and it is unknown when Alvarez was contacted by Macy’s security. Alternatively, the People argue that assuming Tumbaga processed the transaction after security determined appellant was not authorized to use the credit card, Macy’s did not consent to the taking because appellant initiated the illegitimate transaction and Tumbaga did not invite it. Instead, the actions were mere “passive assistance.”
The crime of theft requires an unlawful taking, and asportation of the property of another. (§ 484. People v. Sally (1993) 12 Cal.App.4th 1621. 1627.) “The taking . . . must be against the will of the owner or at least without his consent.” (People v. Edwards (1925) 72 Cal.App. 102, 113); 2 Witkin & Epstein. Cal. Criminal Law (2d ed. 1989) Crimes Against Property, § 574. pp. 651-652.) “[W]hen a person knows or suspects that a crime affecting him is about to be committed, he may, without being deemed to have consented thereto, remain passive and make no effort to prevent its commission. to the end that the criminal may be apprehended, but he may not actively participate . . . to the extent of personally delivering his property or what purports to be his property to the offender and upon a prosecution for theft thereof urge that it was taken . . . without his consent.” (People v. Schroeder (1955) 132 Cal.App.2d 1, 6-7.)
If Macy’s had no reason to believe that appellant was using a stolen credit card. it had no cause to detain him. We reject the People’s contention that “Macy’s personnel took no action until appellant left the store.” Under the direction of security personnel. Tumbaga processed appellant’s sales transaction. This included telling appellant the transaction had been approved by the manager, removing the security sensors from the merchandise, requiring appellant to sign the sales receipt, indicating on the sales receipt that the transaction had been approved and the credit card validated. returning the credit card to appellant and giving him the merchandise. Far from being mere “passive assistance,” Tumbaga actively permitted processing of the sales transaction and in so doing effectively consented to the taking. Consequently, no petty theft occurred.
The People argue that if we find appellant improperly convicted of petty theft with a prior, we could instead find him guilty of attempted theft with a prior and remand solely for resentencing. Appellant agrees there is sufficient evidence of attempted petty theft. [FOOTNOTE 2]
The judgment of conviction for petty theft with a prior is modified to reflect a conviction for attempted petty theft with a prior, and the cause is remanded for sentencing thereon. The judgment is otherwise affirmed.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Appellant altered his position at oral argument.