Whight

Defendant Theodore Whight discovered that the automated teller machine (ATM) card connected to his defunct checking account could still be used to obtain cash at four local Safeway stores. For several weeks he availed himself freely of this happenstance to obtain thousands of dollars. This led to his conviction by a jury of four counts of fraudulent use of an access card or “ATM” theft (Pen. Code, § 484g; undesignated references are to this code) and four counts of grand theft by false pretenses (§§ 484, subd. (a), 487, 532). In a bench trial, the court found true the allegation that defendant had served a prior prison term. (§ 667.5, subd. (b).) Defendant was sentenced to state prison for a total unstayed term of six years. The court also imposed a $500 restitution fine and ordered $19,460 in restitution to be paid to Safeway pursuant to Government Code former section 13967, subdivision (c).

We consider two questions in the published portion of this opinion. The first is whether Safeway relied upon defendant’s misrepresentations within the meaning of the crime of grand theft by false pretenses. Defendant was able to obtain large amounts of cash from the Safeway stores…