Adam Ramirez and Willie Ramirez duped Home Federal Savings and Loan Association of San Diego into crediting Adam Ramirez’s $10 savings account at the Redondo Beach branch with $1.5 million, based upon a fictitious “wire transfer” of funds.
On February 6 Adam Salas Ramirez approached Gloria Dias, branch manager of the Redondo Beach branch of Home Federal Savings and Loan Association of San Diego, indicating that he would like to establish a savings account so that a large amount of money could be “wire transferred” into it. He indicated he and his associates were in the process of buying the Cockatoo Inn in Hawthorne, that he expected a wire transfer of $1.5 million, that he would probably immediately withdraw $900,000 of the money, but might invest $500,000 of the remaining funds at Home Federal.
On February 7, Adam Ramirez telephoned Miss Dias and indicated he and his associates would use Home Federal. He asked what bank should be used for the wire transfer. She said Home Federal used the Bank of America for wire transfers. He said he and his associates would rather use another bank. Miss Dias checked with Kaye Hobson of the wire transfer department in Home Federal’s main office in San Diego. Mrs. Hobson told her to try to convince appellant to use the Bank of America but that if appellant insisted, to use United California Bank rather than lose the account. Adam Ramirez spoke to Miss Dias later in the day and said his associates definitely did not want to use the Bank of America. She told him he could use United California Bank (UCB). She gave him Home Federal’s wire transfer account number at UCB and instructed him to have the wire transfer made to the attention of Kaye Hobson at the Home Federal main office in San Diego.
Linda Robertson was Kaye Hobson’s secretary, and was vaguely familiar with the fact that a wire transfer was expected. On the morning of February 8, while Kaye Hobson was out of the office, Miss Robertson received a phone call for Mrs. Hobson. She asked if she could take a message. The man at the other end of the line said, “This is Garcia of Union Bank.” He asked Robertson if she knew anything about the $1.5 million wire transfer they were receiving. She replied she did not know the details but could take a message. He said they had received the $1.5 million for Ramirez at Redondo Beach and gave her an account number.
Shortly thereafter, Gloria Dias called Linda Robertson to find out if the money had been received. She said it had. Mrs. Hobson returned to her office and Robertson gave her a similar message. Unfortunately, she failed to mention the names “Garcia” or “Union Bank” and thus neither Miss Dias nor Mrs. Hobson was alerted to the discrepancy from the original plan. Mrs. Hobson instructed Miss Dias how to credit Adam Ramirez’s account and that withdrawals could be made immediately.
Adam Ramirez spoke to Gloria Dias on the phone the morning of February 8 and was told the funds had been received. He asked if he could send someone in to pick up a cashier’s check for $900,000. She said he could if he sent written authorization. Later that day Joe Torres came in with a note signed by Adam Ramirez requesting that a cashier’s check for $900,000 be released to his nephew, Joe Torres. The signature on the note matched Adam Ramirez’s signature card and Miss Dias authorized the withdrawal, handling Joe Torres a cashier’s check for $900,000 payable to Adam Ramirez.
On February 9, Adam Ramirez and Carol Boyer came into the Redondo Beach branch and withdrew another $100,000 as follows: a cashier’s check for $46,500, payable to Carol Boyer; a cashier’s check for $35,997.39, payable to Champion Chevrolet; a cashier’s check for $8,900, payable to Foundation Mortgage; a cashier’s check for $5,010, payable to American Express; and $3,602.61 in cash to Adam Ramirez. Adam indicated he would come back the following Monday to sign papers to place the remaining $500,000 into a long-term account.
On February 8, Adam Ramirez took the $900,000 cashier’s check to the California First Bank in Lomita and opened an account. The manager, Clyde Baumgardner, told Adam the account could not be credited until the check cleared. He and Adam agreed the matter could be expedited by Clyde Baumgardner’s hand delivering the check to the Home Federal Redondo Beach branch. On February 9, Mr. Baumgardner took the check to Home Federal where it was exchanged for a $900,000 cashier’s check payable directly to California First Bank. Clyde Baumgardner deposited the check in the California First account Adam Ramirez had opened the previous day.
On February 10, Adam Ramirez withdrew $777,000 from the California First account in cashier’s checks as follows: $500,000, payable to appellant Willie Ramirez; $250,000, payable to Carol Boyer; $15,000, payable to Willie Ramirez; and $12,000, payable to Farber and Company.
On February 10, Willie Ramirez brought the $15,000 check into California First Bank and cashed it. On February 13, Willie Ramirez brought the $500,000 cashier’s check into California First Bank. He asked if he could cash it or open an account. At a teller’s suggestion, the $500,000 check was broken down into a series of $50,000 checks. Willie Ramirez obtained a cashier’s check for $6,695.70, payable to Mid-County Chrysler, and $1,000 in cash. He opened a checking and savings account for approximately $92,000. He had eight $50,000 checks remaining. He wanted to cash them but was told the bank did not have that much cash. An order was placed for a large amount of cash so that the bank could cash the checks in a couple of days.
On February 13, Adam Ramirez withdrew $78,450 from the California First account as follows: a cashier’s check for $75,000, payable to Carol Boyer; a cashier’s check for $1,450, payable to Long Beach Moped; and $2,000 in cash.
Carol Boyer had a checking account at the Bank of San Pedro, which had never had a larger deposit than $660. On February 9, $5,000 was deposited to this account. On February 10, Adam Ramirez and Carol Boyer entered the Bank of San Pedro and presented the $250,000 cashier’s check from California First Bank, payable to Carol Boyer. They deposited $42,000 in Carol Boyer’s checking account and received the following: $8,000 cash; a $100,000 cashier’s check, payable to Adam Ramirez; and a $100,000 cashier’s check, payable to Mario Bustos. That day, Carol Boyer cashed another $8,000 check at her bank. On February 13, Adam Ramirez and Carol Boyer entered the Bank of San Pedro and exchanged the $100,000 check payable to Mario Bustos for two $50,000 checks payable to Adam Ramirez. They also deposited a $75,000 check, payable to Carol Boyer, into Carol Boyer’s account but withdrew $8,000 in cash.
On February 13, Willie Ramirez entered the Home Federal Redondo Beach branch and presented a note signed by Adam Ramirez requesting a check for $400,000 payable to Willie Ramirez. After verification of Adam Ramirez’s signature, a $400,000, check was delivered to Willie Ramirez.
Between February 11 and February 14, Adam Ramirez and Carol purchased many thousand dollars’ worth of clothing, jewelry, appliances and home furnishings, in addition to the three cars they purchased on February 9 from Champion Chevrolet, and they arranged with Farber and Company, an export packing firm, to ship the merchandise to Ecuador.
Home Federal’s mistake was not discovered until February 14 when Mrs. Hobson became alarmed that she had not yet received written confirmation of the wire transfer, as was the usual custom. Upon checking, she discovered that there was no Garcia at Union Bank, and Home Federal never received $1.5 million for Adam Ramirez.
On February 14, Adam Ramirez was arrested at Los Angeles International Airport boarding a flight to Ecuador. He had in his possession the $100,000 cashier’s check payable to him from Bank of San Pedro and the two $50,000 cashier’s checks payable to him from the Bank of San Pedro. At the home of Adam and Willie’s brother, Henry Ramirez, the $400,000 Home Federal cashier’s check payable to Willie Ramirez was recovered. Henry also turned over to the police the eight cashier’s checks for $50,000 each, payable to Willie Ramirez, and the cashier’s check for $6,695.70, payable to Mid-County Chrysler.
Adam Ramirez testified in his own defense. Willie Ramirez did not. Adam Ramirez testified that he and Willie were planning to invest in a restaurant in South America, that Willie was supposed to be arranging the loan with a loan broker, and that he, Adam Ramirez, assumed the loan had been arranged and that he was entitled to make the withdrawals and spend all the money which he did. Carol Boyer testified that Adam Ramirez kept secret from her the details of his business transactions and that she also thought the money had been legitimately obtained.
By jury trial appellants Adam Ramirez and Willie Ramirez were found guilty of grand theft (Pen. Code, § 487, subd. 1). The jury also found true the allegation that the loss exceeded $100,000 (Pen. Code, § 12022.6, subd. (b)). Carol Boyer was charged as a codefendant but was acquitted.
Adam Ramirez and Willie Ramirez were sentenced to state prison. They appealed.
Adam Ramirez and Willie Ramirez contende the evidence is insufficient to support the two-year enhancement of their sentences. Adam Ramirez and Willie Ramirez argue the enhancement is applicable only if the victim’s ultimate out-of-pocket loss exceeds $100,000 and there is no chance of recovery. Adam Ramirez and Willie Ramirez argue that although $1.4 million was withdrawn from the Home Federal account, it was up to the prosecution to prove that Home Federal did not recover at least $1.3 million of it. They argue that some cashier’s checks were recovered unspent, that Carol Boyer had safety deposit boxes where some of the cash might be kept and might be subject to seizure, that some of the checks to merchants and other third parties (which themselves totaled more than $100,000) may have been stopped, and that Home Federal might recover some of its losses by disposing of the merchandise Adam and Carol Boyer purchased.
The Court of Appeals of California, Second District, Division Five, found no merit to this argument.
Adam Ramirez contended that the element of reliance necessary for theft by trick and theft by false pretenses was missing. He contends Home Federal relied solely upon the phone call from “Garcia” and the advice of Linda Robertson and Kaye Hobson, and not upon anything said by Adam. However, the circumstances justified the inference that the mysterious “Garcia” was either Adam Ramirez, Willie, or some coconspirator. Moreover, Adam proposes to ignore the statements by him “setting up” the victim, indicating that $1.5 million would be transferred to his account. The jury could reasonably infer the Home Federal employees relied upon these statements as well.
Willie argued the theft was complete upon the crediting of Adam Ramirez’s account with $1.5 million and therefore Willie was guilty only of receiving stolen property. However, until money was “withdrawn” from the account, the element of asportation was missing.
The judgments were affirmed by the Court of Appeals of California, Second District, Division Five.
The facts summarized above are excerpted from what was written by Court of Appeals of California, Second District, Division Five. More information is available from the source documents: 34081, 34526, 36126, Court of Appeals of California, Second District, Division Five, August 21, 1980, opinion of Ashby with Stephens and Hastings concurring.