People v. Martin

the Smart & Final with the intent to commit theft and was therefore not eligible for relief under Proposition 47.

STANDARDS OF REVIEW

The record is viewed in the light most favorable to the trial court's ruling with a presumption that the order is correct. ( People v. Johnson (2016) 1 Cal.App.5th 953 , 960, 205 Cal.Rptr.3d 246 .) The court's review of the meaning of a voter initiative is de novo. ( In re J.L. (2015) 242 Cal.App.4th 1108 , 1114, 195 Cal.Rptr.3d 482 .) Factual findings of the trial court are reviewed "for substantial evidence and the application of those facts to the statute de novo." ( People v. Johnson , supra , at p. 960, 205 Cal.Rptr.3d 246 .)

DISCUSSION

" 'On November 4, 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act....' [Citation.] 'Proposition 47 makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).' [Citation.]" ( People v. Morales (2016) 63 Cal.4th 399 , 404, 203 Cal.Rptr.3d 130 , 371 P.3d 592 .)

Proposition 47 also created a new resentencing provision, to wit, section 1170.18. Under that statute, "[a] person currently serving a sentence for a conviction ... of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section ('this act') had this act been in effect at the time of the offense may petition for a recall of sentence ... to request resentencing in accordance with ... [s]ection 459.5...." ( Id . subd. (a).) If, on the other hand, "[a] person ... [had] completed his or her sentence for a conviction, ... of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application ... to have the felony conviction or convictions designated as misdemeanors." ( Id . subd. (f).)

Section 459.5, a statute added by Proposition 47, created a new crime of shoplifting, a misdemeanor offense that punishes certain conduct that previously would have qualified as a burglary. Now codified, section 459.5, subdivision (a) provides in relevant part: "Notwithstanding Section 459 [ (the burglary statute) ], shoplifting is defined as entering a commercial establishment with intent to commit larceny while that establishment is open during regular business hours, where the value of the property that is taken or

those convicted of forgery and of identity theft, means the voters did not intend to limit relief for those convicted of second degree commercial burglary. The statute, he asserts, requires a liberal construction.

The People argue defendant entered the commercial establishment with the intent to commit forgery, not larceny, and intent to commit larceny is distinct from intent to commit forgery. Forgery, they argue, is " 'the act of signing the name of another with intent to defraud and without authority, or of falsely making a document, or of uttering the document with intent to defraud.' " They assert forgery does not require asportation of property, whereas larceny requires trespassory taking and the carrying away of property without the owner's consent. They argue there is no evidence the voters intended to grant Proposition 47 relief to all defendants convicted of second degree commercial burglary.

Section 459.5, subdivision (b) provides: "Any act of shoplifting as defined in subdivision (a) shall be charged as shoplifting. No person who is charged with shoplifting may also be charged with burglary or theft of the same property." Thus, in the typical case, if the conduct leading to a defendant's burglary conviction would qualify as "shoplifting" under Proposition 47, he or she would have been charged with a misdemeanor had section 459.5 been in place at the time, instead of being charged with burglary. Indeed, one guilty of shoplifting could not have been charged with burglary at all.

This leads to the question before us: had section 459.5 been in effect at the time of defendant's offense, could defendant have been charged with burglary, or was his conduct, instead, an act of shoplifting within the meaning of

e.g., People v. Lawrence (2000) 24 Cal.4th 219 , 223-224, 233, 99 Cal.Rptr.2d 570 , 6 P.3d 228 [claiming the defendant's "initial crime was the shoplifting theft of a bottle of brandy from a market" where the defendant was seen leaving the store through a closed check-stand with the brandy partially secreted under his jacket]; Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865 , 902-903, 81 Cal.Rptr.2d 58 , 968 P.2d 958 [in case regarding judicial misconduct, describing charges against a trial court defendant as shoplifting when she hid developed film under a blanket and did not

that the use of the word larceny, embezzlement, or the like, can be seen as a way of describing a specific type of conduct that is criminalized by the theft statute-not necessarily as the invocation of each and every type of theft. ( Vidana , supra , at p. 649, 206 Cal.Rptr.3d 556 , 377 P.3d 805 ["Nor does the Legislature's continued use of the terms 'larceny' (or 'theft') and 'embezzlement' in various statutes transform larceny and embezzlement into different offenses. Rather, these terms are simply different ways of describing the behavior proscribed by those statutes."].)

Our Supreme Court recognized, "literal application of section 490a would render many statutes nonsensical." ( Vidana , supra , 1 Cal.5th at p. 647, 206 Cal.Rptr.3d 556 , 377 P.3d 805 .) "Although [the Supreme Court] long ago said that 'the essence of section 490a is simply to effect a change in nomenclature without disturbing the substance of any law' [citations], it does not appear [the Court has] ever applied section 490a to effect a change in nomenclature or to change the language of any statute." ( Ibid . fn. omitted.) We see no reason to do so here.

The long-defined, but narrow, subset of the crime of theft, "larceny," was specifically included in the definition of shoplifting. To read or interpret section 459.5 as if the word "theft" were substituted for the word "larceny" would be utilizing section 490a, designed " 'simply to effect a change in nomenclature without disturbing the substance of any law' " ( Vidana, supra , 1 Cal.5th at p. 647, 206 Cal.Rptr.3d 556 , 377 P.3d 805 ), to change the language of a statute and broaden the historical definition of larceny to include all forms of theft. However, because the intent of the electorate is paramount, we must further consider whether the electorate intended a broader meaning for larceny.

c. Section 459.5 and voter intent.

When interpreting a voter initiative, we may " ' " 'refer to other indicia of the voters' intent, particularly the analyses and arguments contained in the official ballot pamphlet.' " ' " ( People v. Arroyo , supra , 62 Cal.4th at p. 593, 197 Cal.Rptr.3d 122 , 364 P.3d 168 .) Ultimately, " '[w]e may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.' " ( Park, supra , 56 Cal.4th at p. 796, 156 Cal.Rptr.3d 307 , 299 P.3d 1263 .) In this process the court presumes the electorate is " 'aware of existing laws and judicial constructions in effect at the time legislation is enacted' [citation],

describes how Proposition 47 would change the punishment for each specific crime. As the analysis explains, "the measure reduces the penalties for the following crimes: [¶] ... [¶] ... Shoplifting. Under current law, shoplifting property worth $950 or less (a type of petty theft) is often a misdemeanor. However, such crimes can also be charged as burglary, which is a wobbler. Under this measure, shoplifting property worth $950 or less would always be a misdemeanor and could not be charged as burglary." (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, p. 35.)

This explanation does several things to support the conclusion that the electorate intended not only a narrow definition of larceny in the proposed shoplifting statute, but also the use of the historical definition of larceny. First, the analysis specifically describes shoplifting as "a type of petty theft." (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, p. 35.) This description not only associates shoplifting with a specific type of crime, petty theft, but further identifies shoplifting as only a subset of that crime. At a minimum, then, the voters would expect shoplifting to be narrower than petty theft if relying on this description. Second, the analysis differentiates shoplifting from burglary, explaining that shoplifting is sometimes charged as burglary, as opposed to the petty theft of which it is a subset, and explicitly preventing that future practice. ( Ibid .) Thus, voters relying on these statements would expect that shoplifting would be treated differently from burglary if Proposition 47 is passed. Finally, the analysis treats shoplifting as an existing crime, listing it with other known crimes which already have statutory definitions such as grand theft, receiving stolen property, writing bad checks, forgery, and drug possession, while consistently

scope of shoplifting to larceny, which is a subset of petty theft.

It is true the definition of shoplifting under Proposition 47 invokes the structure and phrasing of California's burglary statute. (See §§ 459, 459.5.) We do not conclude from this, however, that the term larceny in section 459.5 should be understood more broadly than its historical definition. While the language and placement of the new shoplifting offense is facially subject to such an interpretation, adopting such an interpretation runs contrary not only to the language choices within the statutory scheme of Proposition 47, but also to the expressed intent of the voters to differentiate shoplifting from burglary.

Starting first with the statutory scheme of Proposition 47, a rote application of the broader term of theft to the text of the shoplifting statute assumes that the electorate was either unable to or did not desire to

the crime of burglary, as opposed to petty theft, there would be scant authority to expand the meaning of larceny.

Given the broader support for the conclusion that larceny, as used in the shoplifting statute, should be understood to encompass its historical definition, neither inclusion of the shoplifting statute in the burglary section of the Penal Code, nor the general similarities between the language used to define the crime and the offense of burglary, nor the existence of limiting factors with respect to the crime of forgery are compelling evidence that the word larceny should be understood to mean theft generally. As such, the proper interpretation of larceny as used in the shoplifting statute is the historical definition of the crime.

Defendant Did Not Commit the Crime of Shoplifting

In this case, defendant's use of a forged check caused Smart & Final to willingly transfer title to certain goods to defendant. Because Smart & Final intended to pass title to the goods through the sale, defendant's crime satisfies the elements of theft by false pretenses, not larceny or larceny by trick. (See Williams , supra , 57 Cal.4th at p. 788, 161 Cal.Rptr.3d 81 , 305 P.3d 1241 ["Here too defendant did not commit larceny. Walmart, through its store employees, consented to transferring title to the gift cards to defendant. Defendant acquired ownership of the gift cards through his false representation, on which Walmart relied, that he was using valid payment cards to purchase the gift cards."]; People v. Nor Woods (1951) 37 Cal.2d 584 , 586, 233 P.2d 897 [if the victim intended that only possession of the property should pass at the time of the sale, the defendant was guilty of larceny by trick or device, but if the victim intended that title should pass, the defendant was guilty of obtaining property by false pretenses]; People v. Edwards (1925) 72 Cal.App. 102 , 113, 236 P. 944 ["It is essential in such cases that the owner shall intend to part with the possession only, and not to pass the title as well. If he intends to pass both the possession and the title, the transaction, though it may amount to the crime of obtaining property by false pretenses, will not constitute larceny."], disapproved on other grounds by In re Estrada (1965) 63 Cal.2d 740 , 748, 48 Cal.Rptr. 172 , 408 P.2d 948 .) None of the facts supporting defendant's crimes show an intent to commit larceny, as opposed to theft by false pretenses.

affirm the judgment of the trial court. Section 459.5's use of the term "larceny" does not include all forms of theft. Defendant's felony conviction for second degree burglary, for entering a commercial establishment and acquiring merchandise by use of a forged check, is not subject to recall of sentence and resentencing under section 1170.18, subdivision (a) or designation as a misdemeanor under section 1170.18, subdivision (f), because his conduct would not have constituted a violation of section 459.5 had that section been in effect at the time of his offense.

FACTUAL AND PROCEDURAL BACKGROUND

On July 10, 2009, defendant entered a Smart & Final in Clovis, California, and purchased alcohol, candy, toilet paper, and other items. Defendant paid with a check, number 2241, and provided his identification to the cashier. The cashier manually entered the check information into the register and, believing the check was valid, allowed defendant to leave with the goods he had purchased when the transaction was complete. As a result, defendant was sold $192.26 worth of goods.

Defendant later returned to the store and again bought alcohol and snack items. He again paid with a check, number 2242, and provided his identification to the cashier. Defendant's identification matched the information on the check and the clerk accepted the check believing it to be valid. As a result, defendant was sold $306.38 worth of goods.

Both checks were tied to the payroll account of a business called The Allergy Center. When the checks cashed, the bookkeeper for the company noticed both that they were out of order and that the company name was not on them. Defendant was not authorized to write checks on behalf of the company and was not known by the bookkeeper.

Defendant was convicted on six counts relating to the two forged checks; two counts of identity theft (§ 530.5, subd. (a)), two counts of second degree commercial burglary (§ 459, subd. (b)), and two counts of check forgery (§ 475, subd. (c)). In bifurcated proceedings, defendant was found to have several prior convictions and to have served several prior prison terms. Defendant received a sentence of six years in prison.

On December 15, 2014, defendant filed a petition pursuant to Proposition 47 to have his second degree commercial burglary convictions reduced to misdemeanor violations of section 459.5, and to be resentenced. His petition was later supplemented with additional briefing from counsel. On May 4, 2015, the trial court held a hearing and denied defendant's petition noting that, because defendant was likely out of prison, the petition should be treated

as an application for modification. The trial court concluded that, because forgery was "not a theft," defendant had not entered

pay for it]; People v. Davis (1998) 18 Cal.4th 712 , 734, 76 Cal.Rptr.2d 770 , 958 P.2d 1083 [" 'For example, the shoplifter who surreptitiously enters a store with the intent to steal commits burglary even though his or her clandestine effort to slip merchandise into a jacket does not necessarily threaten anyone's personal safety.' "]; People v. Ewoldt (1994) 7 Cal.4th 380 , 394, fn. 2, 27 Cal.Rptr.2d 646 , 867 P.2d 757 [in the course of an example regarding the admission of prior bad act evidence, describing shoplifting as a defendant leaving the store without paying for an item]; see also Ewing v. California (2003) 538 U.S. 11 , 18, 38-41, 123 S.Ct. 1179 , 155 L.Ed.2d 108 (dis. opn. of Breyer, J.) [in case considering California's three strikes law, describing offense of hiding three golf clubs in one's pants as shoplifting]; Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097 , 1106, 139 Cal.Rptr.3d 396 [taking firewood without paying for it raises reasonable suspicion of shoplifting]; Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783 , 787, 792-793, 27 Cal.Rptr.3d 494 [describing confession to concealing lingerie under one's clothing and leaving without paying for the items as an admission to the allegation of shoplifting]; Miller v. Superior Court (2004) 115 Cal.App.4th 216 , 223, 8 Cal.Rptr.3d 872 [describing conduct from prior case, where the defendant walked out of store without paying for items of clothing, as shoplifting]; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 , 540, 126 Cal.Rptr.2d 14 [shoplifting arrest arose from incidents where mother stole items by removing security tags from them].)

Defendant, however, contends larceny, as used in section 459.5, includes the act of paying for goods with a forged check obtained using a stolen identity.

Larceny has historically been differentiated from the similar crime of theft by false pretenses. Indeed, this differentiation is one of the historical difficulties leading to California's current theft statute. (See Williams , supra , 57 Cal.4th at p. 785, 161 Cal.Rptr.3d 81 , 305 P.3d 1241 ["For instance, it was difficult at times to determine whether a defendant had acquired title to the property, or merely possession, a distinction separating theft by false pretenses from larceny by trick."].) To commit larceny, one must engage in a trespassory taking, which includes the unwilling transfer of possession of the property, and then carry away the ill-gotten goods. ( Id. at p. 787, 161 Cal.Rptr.3d 81 , 305 P.3d 1241 .) However, where one falsely convinces another to willingly transfer title to those same goods, the crime committed is not larceny, but theft by false pretenses, and no asportation requirement need be met. ( Ibid. )

b. Section 490a.

The People assert defendant's argument relies on a broader definition of theft, resulting from an application of section 490a to the shoplifting statute.

Section 490a, enacted in 1927, provides: "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall

["[T]he 1927 amendment to section 484 did not repeal or cross-reference then existing embezzlement and false pretenses statutes. These embezzlement and false pretenses statutory schemes continue to be in effect today."].) Indeed, recognizing these independent meanings, the Legislature has continued to utilize the names of historical theft offenses in more modern statutes. ( Id. at pp. 645-646, 206 Cal.Rptr.3d 556 , 377 P.3d 805 [providing several examples].) The result from the consolidation of historical theft-related offenses and the concomitant enactment of section 490a, is

'and to have enacted or amended a statute in light thereof.' " ( People v. Superior Court ( Cervantes ) (2014) 225 Cal.App.4th 1007 , 1015, 171 Cal.Rptr.3d 86 , see People v. Licas (2007) 41 Cal.4th 362 , 367, 60 Cal.Rptr.3d 31 , 159 P.3d 507 .) " ' "Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different intention existed." ' " ( People v. Licas , supra , at p. 367, 60 Cal.Rptr.3d 31 , 159 P.3d 507 .)

While there is little discussion of shoplifting in the analyses and arguments contained in the voter information guide, what is there supports the conclusion that obtaining merchandise by use of a forged check does not constitute larceny as that term is used in section 459.5.

The analysis by the Legislative Analyst provides a summary of the " Proposal " made by Proposition 47. (See Voter Information Guide, Gen. Elec. (Nov. 4, 2014), analysis of Prop. 47 by Legis. Analyst, pp. 35-36.) This proposal identifies several specific crimes, their existing penalties, and

using language suggesting individuals are regularly incarcerated for committing such crimes. (Voter Information Guide, Gen. Elec., supra , analysis of Prop. 47 by Legis. Analyst, pp. 35-36 ["the measure reduces the penalties for the following crimes"; "about 40,000 offenders annually are convicted of the above crimes"; "the above crimes are nonserious and nonviolent, most offenders are currently being handled at the county level"].) As such, one reading the analysis would conclude that the crime of shoplifting already exists and, knowledgeable about the general description of the crime in California case law to that point ( People v. Superior Court ( Cervantes ), supra , 225 Cal.App.4th at p. 1015, 171 Cal.Rptr.3d 86 ), would likely understand the crime to be limited in line with the historical definition of larceny.

The text of Proposition 47 also slightly supports this conclusion. While the summary statements ahead of Proposition 47's text only vaguely define the specific scope of the proposition with respect to modifications to the criminal law, it does include some limiting language. The "Findings and Declarations" provides that the law will be enacted "to maximize alternatives for nonserious, nonviolent crime" and the "Purpose and Intent" of the law is to "[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession." (Voter Information Guide, Gen. Elec., supra , text of Prop. 47, §§ 2, 3, subd. (3), p. 70.) By identifying as nonserious crimes only petty theft and drug possession, the same type of crimes actually modified by the amendments to the Penal and Health and Safety Codes in the proposed text of Proposition 47, the voter information guide demonstrates an intent by the electorate to limit the effects of the law to changing just those types of crimes. As a result, the available evidence does show an intent by voters to limit the

distinguish between larceny and other forms of theft when enacting the new and amended laws. But this notion is undermined by the language choices made within Proposition 47. In the shoplifting statute, "larceny" is differentiated from "theft." The statute uses larceny in the definition of shoplifting, but protects shoplifters from discretionary charging choices by adding that no person "charged with shoplifting may also be charged with burglary or theft of the same property." (§ 459.5, subd. (b).) This choice of wording within the statute at issue confirms the electorate thought larceny was something different than other forms of theft. There would be no rational purpose for choosing different words to convey the same meaning if larceny and other forms of theft were intended to be wholly overlapping terms. (See Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334 , 343, 110 Cal.Rptr.3d 628 , 232 P.3d 625 [rejecting argument which "contravenes the principle that 'when different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is compelling that a difference in meaning was intended' "].) In addition, at least one other modification to the Penal Code brought by Proposition 47 identified theft generally as opposed to larceny specifically. (§ 490.2, subd. (a) ["obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft"].) Within the overall scheme of Proposition 47, then, it appears the electorate intended to differentiate larceny from theft.

Section 459.5's placement following the offense of burglary in the broader Penal Code does not meaningfully rebut this conclusion. As discussed ante , the intent of the electorate to differentiate shoplifting from burglary is demonstrated both through the express association of shoplifting with a subset of the crime of petty theft and through the explicit goal of preventing conduct which could be charged as shoplifting from continuing to be charged as burglary. The decision to frame the crime of shoplifting in the general form of the burglary statute is consistent with the stated intent to differentiate the offense in such a way that a burglary charge could no longer be utilized for low value larcenies, while ensuring only that a specific subset of crimes would be eliminated from the burglary statute. This goal is supported not only by the language previously discussed, but also by the express authority to continue charging burglary with respect to high value larcenies, which fall outside the definition of shoplifting. (See § 459.5, subd. (a) ["Any other entry into a commercial establishment with intent to commit larceny is burglary."].)

Even if there was some greater reason to associate the crime of shoplifting with

The burglary statute has used the term larceny since at least 1892. (See People v. Barry (1892) 94 Cal. 481 , 482, 29 P. 1026 ["Viewed in the light of section 459 ..., which says: 'Every person who enters any house, room, store, ... with intent to commit grand or petit larceny, or any felony, is guilty of burglary,'-the ruling of the court is correct."] italics omitted.) Thus, regardless of the soundness of the conclusion, it is, at least as an initial matter, reasonable to consider whether the Legislature in 1927 considered the impact of section 490a on the burglary statute and proceeded despite the potential broadening of that statute. (See People v. Nguyen (1995) 40 Cal.App.4th 28 , 31, 46 Cal.Rptr.2d 840 ; compare People v. Myers (1929) 206 Cal. 480 , 485, 275 P. 219 [finding that nomenclature change effected by § 490a did not disturb the substance of any law, making it "unimportant to dwell upon the contention that this section is ineffectual to interpret the word 'larceny' to mean 'theft' in section 459"] with People v. Parson (2008) 44 Cal.4th 332 , 354, 79 Cal.Rptr.3d 269 , 187 P.3d 1 ["An intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction."].)

However, no historical similarities can be found here, where the electorate chose to enact a statute utilizing the term "larceny," despite later referring to related conduct as "theft," knowing both that the word larceny retained its historical elements and that the definition of theft and the application of section 490a effected a simple change in nomenclature which did not " 'wipe out the common-law definition of larceny, nor ... destroy the universal meaning of the word wherever English is spoken' " ( People v. Myers , supra , 206 Cal. at p. 485, 275 P. 219 ). (See Williams , supra , 57 Cal.4th at p. 789, 161 Cal.Rptr.3d 81 , 305 P.3d 1241 .)

For his part, defendant argues the overall statutory scheme of Proposition 47 shows the electorate did not intend to limit the underlying crimes for which resentencing on a second degree commercial burglary conviction would be appropriate. Pointing to the fact that Proposition 47 bars one who has been convicted of both forgery and identity theft from having their forgery conviction considered a misdemeanor even where the value of the forgery was below $950, defendant contends that the lack of a similar limitation on charges related to shoplifting offenses demonstrates a clear intent not to limit which offenses are eligible to qualify as a shoplifting offense. We disagree. The limitations added to the forgery statute serve to differentiate minor offenses of forgery, where a misdemeanor conviction has been deemed appropriate, from crimes such as identity theft, where the electorate has chosen to ensure that greater punishments remain available. That such a provision was added does not detract from the ability of the electorate to similarly limit the scope of relief available by utilizing specific words in a

statute rather than unique clauses. Here, the evidence is persuasive that the electorate's choice of the word "larceny" was an inherently limiting phrase to the meaning of the crime. Once utilized, there was no reason to additionally limit the scope of the offense. In contrast, no similarly limiting word could be used to differentiate forgery without the use of identity theft, from forgery involving the use of identity theft. As such, it was reasonable for the electorate to approve of additional limiting language and the decision to do so bears no relationship to the definition of larceny in the shoplifting statute.

Defendant argues in reply that consent obtained by fraud is ineffective and thus his taking should be considered trespassory. Defendant's argument misses the common law distinction between theft by false pretenses and larceny by trick. It is not the fraudulent consent that matters in this analysis, but what conduct was fraudulently induced. Where only a transfer of possession is fraudulently induced, the fraud does, indeed, invalidate the voluntary transfer of possession and one remains guilty of larceny (albeit by trick or device) if one obtains the property with the intent to convert it to their own purposes. (See People v. Edwards , supra , 72 Cal.App. at p. 113, 236 P. 944 ["It is well settled that a taking, within the definition of larceny, occurs when a person, with a preconceived design to appropriate the property to his own use, obtains possession of it by means of fraud or trickery. In such case the fraud vitiates the transaction, and the owner is deemed still to retain a constructive possession of the property."].) However, where the fraud effectuates a transfer of title, the cases cited in the above paragraph show it is not larceny but theft by false pretenses that has occurred under the common law. ( Ibid . )

Nor, contrary to defendant's argument, is the ultimate desire to obtain and leave with goods a defining fact in the analysis.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

HILL, P.J.

PEÑA, J.