California Court of Appeals, First District, First Division
CERTIFIED FOR PARTIAL PUBLICATION [*]
Order Filed 1/8/14
Trial Court San Francisco City and County Superior Court No. 00214256 Hon. Carol Yaggy Trial Judge.
Charles Marson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman and Christopher J. Wei, Deputy Attorneys General Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
BY THE COURT:
It is ordered that the opinion filed herein on December 17, 2013, be modified as follows:
1. On page 11, immediately after the first partial paragraph at the top of the page, insert the following two paragraphs and footnote 10:
Defendant argues that this distinction cannot be maintained because the statement of facts in Williams does not make clear whether the defendant purchased gift cards that were already at the counter, and therefore did not need to be transported prior to purchase, or whether he picked up gift cards located elsewhere in the store and carried them to the counter. Rather, the decision states only that the defendant “bought” the gift cards at the cash register. (Williams, supra, 57 Cal.4th at p. 780.) We acknowledge the ambiguity of the court’s characterization. However, it is not unusual for gift cards in retail stores to be maintained at the cash register. Further, Justice Baxter, in his dissenting opinion in Williams, states “the defrauded cashiers handed defendant the fraudulently purchased (i.e., stolen) [gift] cards, ” suggesting the cards did not come into the defendant’s possession until after the transaction was completed.10 (Id. at p. 800.)
While acknowledging the ambiguity in the Williams account of events, we nonetheless reject defendant’s reasoning. The absence of this distinction would appear to place Davis and Williams into irreconcilable conflict; defendant, at least, proposes no other way of distinguishing them. Yet Williams gives no indication of an intent to overrule Davis on this point, and, in the absence of such an intent, our duty is to attempt to apply both decisions in good faith. For the reasons discussed, the nature of defendant’s conduct is closer to that of the defendant in Davis than that of the Williams defendant. Because the factual distinction we propose is consistent with the language of the Williams court, we find it a meaningful way to reconcile the two decisions.
10 Even Justice Baxter’s statement is not free of ambiguity, however, because, as defendant points out, “[i]f the defendant in Williams had brought a gift card to the counter from a display rack and handed it to the cashier for purchase and activation, there would be a moment when the cashier handed it back.”
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
Margulies, Acting P.J.
Defendant Hoang V. Nguyen was convicted of burglary after he was found by an electronics store security guard to have exchanged more expensive laptop computers for a less expensive printer in the printer’s box. In instructing the jury on theft, the trial court instructed only on the elements of theft by larceny. Defendant argues his intended crime was not larceny but, if anything, theft by false pretenses. Because the jury was not instructed on the elements of theft by false pretenses, he contends, his convictions must be reversed. He also contends the trial court erred in denying a purported Marsden motion and in calculating ...