People v. Whight

36 Cal.App.4th 1143 (1995)

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Nature of the Case

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Facts

D opened a regular checking account. He was issued an ATM card which bore no expiration date. There was no overdraft protection, and the ATM card could be used only with the checking account. D deposited $3,750.99 into his checking account. Monthly statements were sent to D. By June 1991 D's account was overdrawn by $6.17. D was mailed a letter stating that his account was overdrawn. The account would be closed by the next statement if the overdraft was not made good. The bank closed the account because of the negative balance. From the bank's viewpoint, when D's checking account was closed, his ATM card was simultaneously canceled and revoked. Despite knowing of the cancellation, D continued to use his ATM card, mainly at local Safeway markets. D took advantage of the fact that the system of verification used by Safeway would approve a transaction without actually verifying funds if the system was unable to link up with D's bank in 30 seconds. The computer that did this function failed to notify Safeway many times that D's ATM card was invalid. D withdrew a total of $19,000. During that time, D's ATM card was rejected at two other (non-Safeway) markets. D went to the store at different times and used his card quickly to conceal it from the view of store employees. At the time of his arrest, D admitted that he knew his checking account had been closed. D was convicted of grand theft by false pretenses. D appealed; Safeway relied upon the code issued by the computer system and not on his presentation of the ATM card.