## Facts

- Theodore Charles Whight opened a checking account at Tri Counties Bank and received an ATM card without an expiration date and without overdraft protection.
- After the account became slightly overdrawn and Whight failed to cure the deficiency, the bank closed the account and treated the ATM card as canceled.
- Safeway stores allowed customers to obtain cash using ATM cards through terminals connected to a Wells Fargo system that typically sought approval from the issuing bank.
- When Wells Fargo could not communicate with the issuing bank, the system generated “stand-in” approval codes; Safeway would dispense cash and later verify the transaction.
- After the account was closed, Whight repeatedly used the ATM card at four Safeway stores over several weeks, receiving stand-in codes due to a system error and obtaining more than $19,000 in cash.
- A jury convicted Whight of four counts of fraudulent use of an access card (Cal. Penal Code § 484g) and four counts of grand theft by false pretenses (Cal. Penal Code §§ 484(a), 487, 532), and the trial court found a prior-prison-term allegation true (Cal. Penal Code § 667.5(b)).

## Issues

1. Whether sufficient evidence supported grand theft by false pretenses, including whether Safeway “relied” on Whight’s implied misrepresentation when an automated authorization system was used.
2. Whether sufficient evidence supported access-card convictions under Penal Code § 484g, including proof that the bank provided the required written notice of revocation to show Whight’s knowledge of revocation.

## Decision

- The court affirmed the four convictions for grand theft by false pretenses.
- The court reversed the four convictions for fraudulent use of an access card under Penal Code § 484g due to insufficient evidence of the required written revocation notice.
- The court otherwise left in place the remaining judgment as modified in sentencing matters addressed outside the published discussion.

## Legal Principles

- Theft by false pretenses requires proof that (1) the defendant made a false pretense or representation, (2) with intent to defraud, and (3) the victim parted with property in reliance on the representation.
- A false representation for false pretenses may be established by conduct and may be express or implied.
- Presenting an ATM card to obtain cash can imply a representation that the card is valid and that the user is authorized to obtain the funds.
- Use of a computerized verification system does not preclude reliance where the victim dispenses property based on the transaction despite the system not actually providing a true approval.
- For Penal Code § 484g based on use of a revoked access card, the prosecution must prove the defendant used the card with knowledge of revocation; absent proof the issuer provided the required written notice of revocation, evidence of knowledge is insufficient.

## Conclusion

The court held that Safeway could rely on Whight’s implied representation of authorization when it dispensed cash on stand-in codes, supporting theft-by-false-pretenses convictions, but it reversed the access-card convictions because the prosecution did not prove written notice of revocation sufficient to establish Whight’s knowledge that the card had been revoked.


People v. Whight, 36 Cal. App. 4th 1143 (Cal. Ct. App. 1995)