Is it a crime of larceny by trick rather than theft by trick?

In People v. Curtin (1994) 22 Cal.App.4th 528, the court held that when the defendant entered a bank, cashed a check made out to himself but drawn on the account of another depositor without permission or authorization, the crime was that of obtaining property by false pretenses, not that of larceny by trick. (Id. at p. 532.) The court explained, "'Although the crimes of larceny by trick . . . and obtaining property by false pretenses are much alike, they are aimed at different criminal acquisition techniques.'" (Id. at p. 531.) The court continued, "Defendant's misrepresentation of himself as a depositor . . . was certainly a trick or device. But he used it to acquire possession and title to the money, not merely possession. The bank did not give defendant the money on any understanding as to its limited use; rather, believing he was [the depositor], the bank gave defendant the money to keep or use as he would." (Id. at p. 532.)

A defendant seeking relief under section 1170.18 "'"has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense he is asserting."'" (People v. Sherow (2015) 239 Cal.App.4th 875, 879.) Here, defendant failed to establish that he entered the Walmart with the intent to commit larceny rather than theft by false pretenses.

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