I dissent. The majority opinion correctly *446observes that Penal Code section 484, subdivision (b), as amended effective November 8, 1967, provides in pertinent part that the “intent to commit theft by fraud is presumed ... if one presents to the owner identification which bears a false or fictitious name or address for the purpose of obtaining the lease or rental agreement.” In subdivision (c) of the same section it is provided that “The presumptions created by subdivision (b) are presumptions affecting the burden of producing evidence. ’ ’
Evidence Code section 604 provides: “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced. which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and. without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.” (Italics added.)
It is also correctly pointed out by the majority that this ease was tried prior to the effective date of the 1967 amendment so that the statutory presumption could not have been invoked against the defendant here. And in that connection the following comment is made: 11 At the time of trial, section 484 created a presumption of a fraudulent intent upon a conjunction of the use of false identification and a failure to return the automobile within the stated time. Under the legislative amendment eliminating the stated time requirement, effective November 8, 1967, there may have been sufficient evidence to convict appellant. ’ ’
In its necessary and unavoidable effect, the holding of the majority is this: that in this case tried prior to November 8, 1967, it was improper, as a matter of law, for the trier of the fact to infer from the proven facts the specific intent which the same trier of fact would be required to presume in a case tried after the effective date of the amendment, absent evidence which would support a finding of the nonexistence, of the presumed fact.
Again referring to the presumption created by the 1967 amendment, the majority state: ‘1 Obviously we express no opinion as to the constitutionality of this presumption. The legal effect of this presumption is not before us. ’1
However, to hold that the facts constituting the basis of the statutory presumption are insufficient to support a reasonable inference of the presumed fact is tantamount to a declaration *447that the statutory provision is unconstitutional. As our Supreme Court stated in People v. Stevenson, 58 Cal.2d 794 797 [26 Cal.Rptr. 297, 376 P.2d 297] : “The rule is settled that a presumption of one fact from evidence of another is violative of due process if there is no rational connection between the fact proved and the fact presumed. [Citations.] ’’
Although I believe that there is a rational connection between the fact declared as the basis for the presumption and the fact to be presumed under the presently effective statute, I agree that the instant case requires no holding which would determine the constitutionality of the presumption in question either expressly or by necessary implication. This is so because in the case at bench the basis for the trial court’s finding that appellant entertained the requisite specific intent to steal is not limited to the fact that he obtained possession of the vehicle by the use of false identification. Appellant took the stand and gave testimony designed to explain the reason for his fraudulent course of conduct. A reading of this testimony readily indicates the reasonableness of its rejection by the trial court.
It would be difficult to imagine conduct more dishonest and surreptitious than that of this appellant as disclosed by the instant record. Appellant conceded that he had “purchased” the stolen driver’s license and credit cards of another person in order to obtain possession of the subject vehicle. This preconceived fraud not only enabled appellant to obtain control of a valuable property but it also precluded the owner from knowing where, or to whom, to look for its recovery.
Although appellant testified, by way of explaining his failure to return the vehicle within the lease period, that he had been arrested by the authorities on another charge on the day following the fraudulently obtained lease, there was no other direct evidence on this point. The employee of the leasing agency testified that the car was not recovered until June 28. 1967, four days after the lease had been executed and two days after the car was due back. Its odometer indicated that it had been driven approximately 300 miles.
Lastly, I am unable to see sufficient similarity in the facts found in People v. Pillsbury, 59 Cal.App.2d 107 [138 P.2d 320], to render its holding applicable or persuasive in the instant ease. In Pillsbury the defendant’s true identity and residence were known at all times to the owner of the vehicle. The owner’s agent was in frequent contact with the defendant while he was in possession of the car and, in fact, the defendant “surrendered the car to the owner when the latter *448needed it for his own use, and the owner at that time agreed that the defendant might sell the car.” (Page 112.) In sum, the sole wrong of the defendant in PiUsbury was in deceiving' the owner as to the prospects of an immediate sale to a specified party whereas he merely hoped to sell it to some then' undetermined person and thereby earn a commission. Thé court could but conclude that “ ‘The course of conduct,pur-' sued by [the defendant therein] ... is not compatible with, the ordinary surreptitious activities of a thief.’ ” (Page" 112.) ;
The credibility of witnesses and the inferences to be drawn' from the evidence being within the exclusive province of the, trier of fact, I would affirm the reasoning and the judgment, of the experienced trial judge herein.
A petition for a rehearing was denied December 4, 1968,1 and respondent’s petition for a hearing by the Supreme Court was denied January 15, 1969. McComb, J., was of the opinion that the petition should be granted.