Nature of the Case
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Facts
D was observed in the men's sportswear department at Nordstrom Rack. Security noted D was carrying a white bag from Saks Fifth Avenue, which at that time was no longer in business in San Diego. D selected a pair of pants and went to the refund counter. Security saw D put the pants in his bag when the clerk turned her back. D took the pants partially out of the bag and removed the price sticker from the waistband. Security telephoned the clerk and instructed her to accept D's return and make sure he signed the return documents. D told the clerk he had received the pants as a gift from his sister and the size was wrong. D wanted a cash refund. D presented identification, and the clerk had him sign a return receipt. D put the cash and receipt in his pocket and began to walk away. D was escorted to the security office. When asked for his return receipt, D took it out of his pocket, ripped it up and swallowed it. The agents handcuffed him and called the police. D had no checks, credit cards or cash other than the $26.99 he had received in the return transaction. After the close of the prosecution's case-in-chief, D's counsel moved for a judgment of acquittal on the petty theft charge on the basis of People v. Lorenzo. P was proceeding under a theory of theft by false pretenses, namely that the sales clerk gave D a refund based on his false representation. The trial court agreed that the actual reliance upon D's misrepresentations was missing, and consequently, there was only evidence of an attempt of theft by false pretenses. The court denied the motion for judgment of acquittal because D had committed theft by larceny. D was convicted and appealed.
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