People v. Ellis5/28/2003
over a period of time. [Citation.]'" (Salvato, supra, 234 Cal.App.3d at p. 882, quoting People v. Thompson (1984) 160 Cal.App.3d 220, 224 (Thompson).) In Salvato, the court explained that " ecisions on the continuous course of conduct exception have focused on the statutory language in an attempt to determine whether the Legislature intended to punish individual acts or entire wrongful courses of conduct." (Salvato, supra, at p. 882.) " ertain verbs in the English language denote conduct which occurs instantaneously, while other verbs denote conduct which can occur either in an instant or over a period of time." (People v. Gunn (1987) 197 Cal.App.3d 408, 415 ["harbors, conceals or aids" within the continuous course of conduct exception].) In other cases, the question whether a crime involves a continuous course of conduct for purposes of election turns on the cumulative outcome. (See Thompson, supra, 160 Cal.App.3d at p. 225 [spousal abuse].)
For purposes of charging and conviction, theft offenses may constitute a continuing course of conduct under certain circumstances. In People v. Bailey (1961) 55 Cal.2d 514, 518-519, the Supreme Court held that several takings, each of which constituted petty theft, could be charged as a single count of grand theft when the takings were "all motivated by one intention, one general impulse, and one plan." (See also, People v. Robertson (1959) 167 Cal.App.2d 571, 576-577 [grand theft committed where defendant made six purchases on a fraudulently obtained credit card].) However, in People v. Neder (1971) 16 Cal.App.3d 846 (Neder), the court refused to apply the Bailey doctrine to the crime of forgery. It explained that forgery is not concerned with ends -- what is obtained through the forgery -- but with means -- the act of signing the name of another with the intent to defraud. In contrast, " he essential act in all types of theft is taking. If a certain amount of money or property has been taken pursuant to one plan, it is most reasonable to consider the whole plan rather than to differentiate each component part. [Citation.] . . . Theft pursuant to a plan can be viewed as a large total taking accomplished by smaller takings." (Id. at pp. 852-853.)
Section 484g provides: "Every person who, with the intent to defraud, (a) uses, for the purpose of obtaining money, goods, services, or anything else of value, an access card or access card account information that has been altered, obtained, or retained in violation of Section 484e or 484f, or an access card which he or she knows is forged, expired, or revoked, or (b) obtains money, goods, services, or anything else of value by representing without the consent of the cardholder that he or she is the holder of an access card and the card has not in fact been issued, is guilty of theft. If the value of all money, goods, services, and other things of value obtained in violation of this section exceeds four hundred dollars ($400) in any consecutive six-month period, then the same shall constitute grand theft." (Italics added.)
Defendant challenges the trial court's reading of section 484g as contemplating a six-month continuous course of conduct for grand theft. She argues the language "merely serves as a means for determining the degree of severity of the theft; it does not alter the nature of the crime or the types of conduct proscribed by the statute." (Emphasis in original.) Defendant insists the language of section 484g shows that the Legislature intended to punish individual criminal acts, not an entire course of criminal conduct. She argues Bailey and Neder are inapposite because neither involves issues of election, and neither "discusses whether a series of thefts, such as those in this case, qualifie
Page 1 2 3 4 5 6 7 8 9 California DUI Attorneys
DUI Lawyers
|