http://www.courts.ca.gov/opinions/nonpub/B261156.PDF
http://www.courts.ca.gov/opinions/nonpub/B261156.DOC
I just realized that Justice Sanjay Kumar was brought in just to hear this one case. Justice Kumar was appointed for this case and up to April 11, 2016 which is Monday, i.e. "Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until April 11, 2016." This case is over Monday morning. That means the opinion was probably written a while back and they decided to release it late Friday.
Justices pro tem are appointed by the Chief Supreme Court Justice, "When there are vacancies on the Court of Appeal, the Chief Justice of the Supreme Court temporarily assigns a judge from the superior court to sit as a Court of Appeal justice." This means Chief Supreme Court Justice Tani appointed Kumar. Kumar will do as the Supreme Court instructs him. I think this was intentional judge change situation. One Justice didn't want to ruin his reputation, bend to the will of his boss, i.e. money, power of Gary Michelson over ex-DA Steve Cooley. Another Judge was willing to do as he was told so he can hopefully be appointed, elected (?) Appeals Court Judge. Here's a great article on "gaming the system" with "visiting judges." "Judge," "Justice" doesn't make a difference It's people with power and corrupt influence abusing the system for personal gain and evil agendas.
http://animaladvocates.us/eliminate%20assigned%20judges.pdf
In this case which is State v two individuals, having the State Supreme Court Justice appoint her personal friend Justice is conflict of interest. Of course she chose Kumar who will do as she tells him. Our judicial system is so effed up. Richard and Neil had the most wonderful attorney any person could have, law and evidence were in their favor and they still lost.
Here's the proof of the relationship. Ex DA Steve Cooley good buds with Chief Supreme Court Justice who is good buds with Kumar. Notice she'd appointed him to fill vacancies in the Appeals court for 16/24 months. That's quite a few cases to throw here and there. I will bet that Kumar voted pro DA, State, friend of someone wealthy and powerful every time. Steve Cooley also endorsed Judge Kumar.
http://www.sabasc.org/Blog/2012/June/SABA-endorses-Judge-Sanjay-Kumar.aspx
Notice Richard Mosk in oral argument basically stated there is no case because there is no evidence of any crime. If the state didn't know how much Richard and Neil paid for a property, they could never tell if they made a profit or lost money. As I remember from part of the trial they did lose money at times. It's shocking that the opinion states that it doesn't matter if any money was made or lost.
I believe Justice Richard Mosk didn't want to go along with the corruption in this case. He took a medical leave to get off the case. The state who was the prosecutor in the case selected Kumar to sit the rest of the case. Conflict of interest much? Of course Kumar will agree with other Justices because he so very much wants to be a Justice instead of just a Judge. New Justices always just concur their first year at least. Justice Richard Mosk finally retired I feel because he was sick of the corruption. He was probably tired of being told to go along with the corruption as a favor to Gary's money bought political friends. Mosk was nearing retirement anyway. They let him retire before they released the opinion. The timing is just too coincidental.
I just fully read the opinion. There is no justice. It reminds me of my appeal. The Justices' arguments, evidence make no sense. It goes completely against the law, evidence, case citations, common sense...
Justices were
Justice Sanjay Kumar
http://www.metnews.com/articles/2013/kuma121913.htm
Justice Paul Turner
http://www.courts.ca.gov/2474.htm
Justice Sandy R Kriegler
http://www.courts.ca.gov/2434.htm
Notice it's "unpublished." That means it can never be used as a case citation in other cases.
Filed
4/8/16 P. v. Powers CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
PHILLIP RICHARD POWERS et al.,
Defendants and Appellants.
|
B261156
(Los Angeles County
Super. Ct. No. BA409225)
|
APPEAL from
the judgments of the Superior Court of Los Angeles County, Craig Richman,
Judge. Affirmed.
MLG Automotive
Law, Jonathan A. Michaels and Kianna C. Parviz, for Defendants and Appellants.
Kamala D.
Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, and David A. Voet, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________
Defendant Neil David Campbell introduced his friend,
wealthy doctor Gary Michelson, to defendant Phillip Richard Powers. The three men established a business
relationship in 2000 in which Powers secured investment property in Costa Rica
for Michelson, for the ostensible purpose of growing and harvesting teak. The relationship unraveled after several
years, with Michelson alleging that Campbell and Powers operated a scheme
designed to entice him into purchasing unsuitable land at inflated prices,
while secretly overcharging Michelson on the land and siphoning off millions of
dollars for their own self-interest.
The district
attorney filed a felony complaint charging 140 counts against defendants, which
was reduced to five counts by the time of trial. The jury returned one guilty verdict, of
grand theft in count 46 (which was referred to at trial as count 3), in
violation of Penal Code section 487, subdivision (a).[1]
The jury made a special finding that the
charge in count 46 was filed within the statute of limitations, but the
excessive taking allegations under sections 186.11, subdivision (a)(2) and
12022.6, subdivision (a)(4), were not true.
The jury found defendants not guilty of grand theft in the four
remaining counts.
Probation
was denied as to both defendants. Powers
was sentenced to three years in county jail pursuant to section 1170,
subdivision (h), on condition he serve 217 days in county jail with 888 days
suspended. Campbell was sentenced to two
years in county jail. Defendants filed
timely notices of appeal.
Jointly represented by one
attorney on appeal, defendants raise the following issues: (1) there is insufficient evidence to support the conviction of grand theft in count 46; (2) there is overwhelming evidence that count 46 is
barred by the statute of limitations; (3) the trial court erred in failing to instruct the
jury that the prosecution withheld evidence; (4) section 1157 requires the
convictions in count 46 be reduced to misdemeanors; (5) pursuant to Proposition
47, the count 46 convictions must be reduced to misdemeanors; and (6) if the
convictions are reduced to misdemeanors, the convictions are barred by the one-year
statute of limitations.
DISCUSSION
Sufficiency of the
Evidence
Defendants
first contend the evidence is insufficient to support the conviction in count
46. Defendants reason that the evidence
is constitutionally inadequate because: (1) the prosecution presented inconsistent
evidence that Michelson sent $759,600 to Costa Rica to pay for properties
obtained by defendants; (2) Michelson testified that he actually received each
of the properties in count 46 so there could not have been a theft of $759,600;
(3) the prosecution theory that defendants inflated the price of
the property before selling it is incorrect
because “Michelson himself testified on cross-examination that he did not know
how much of the $759,600 was stolen” and “Michelson knew that Powers was taking
a commission for his services of acquiring the property, and also knew that
Powers was buying the property, marking it up, and selling it;” (4) a professional
services agreement between Powers and Michelson did not limit the amount of
commission Powers was to earn from each sale, and although Michelson testified
that Powers was limited to taking no more than 6 percent, the prosecution
presented no document memorializing a 6 percent limit on commission.
the property before selling it is incorrect
because “Michelson himself testified on cross-examination that he did not know
how much of the $759,600 was stolen” and “Michelson knew that Powers was taking
a commission for his services of acquiring the property, and also knew that
Powers was buying the property, marking it up, and selling it;” (4) a professional
services agreement between Powers and Michelson did not limit the amount of
commission Powers was to earn from each sale, and although Michelson testified
that Powers was limited to taking no more than 6 percent, the prosecution
presented no document memorializing a 6 percent limit on commission.
We reject
the challenge to the sufficiency of the evidence. The inadequate statement of facts presented
by defendants in their briefing forfeits the issue on appeal.
Standard of Review and the
Requirement of a Complete Statement of Facts
“In
addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Johnson (1980)
26 Cal.3d 557, 578.) The appellate court
presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. (People
v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991)
52 Cal.3d 1210, 1237.) The same standard
applies when the conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th
1117, 1124.) Although it is the jury’s
duty to acquit a defendant if it finds the circumstantial evidence susceptible
of two reasonable interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be convinced of
the defendant’s guilt beyond a reasonable doubt. (Ibid.)” (People
v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“Thus, to
prevail on a sufficiency of the evidence argument, the defendant must present
his case to us consistently with the substantial evidence standard of
review. That is, the defendant must set
forth in his opening brief all of the material evidence on the disputed
elements of the crime in the light most favorable to the People, and then must
persuade us that evidence cannot reasonably support the jury’s verdict. (See People v. Dougherty (1982) 138
Cal.App.3d 278, 282.) If the defendant
fails to present us with all the relevant evidence, or fails to present that
evidence in the light most favorable to the People, then he cannot carry his
burden of showing the evidence was insufficient because support for the jury’s
verdict may lie in the evidence he ignores.”
(People v. Sanghera (2006) 139
Cal.App.4th 1567, 1574.)
“An
appellant’s opening brief must: [¶] . .
. [¶] (C) Provide a summary of the
significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C). “An appellant must fairly set forth all the
significant facts, not just those beneficial to the appellant. (Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881.)” (In re S.C. (2006) 138 Cal.App.4th 396,
402.)
Briefing by Defendants on Appeal
The record in this case includes eight volumes of
reporter’s transcripts, five of which contain trial testimony. Fifteen witnesses testified for the
prosecution and two for defendants.
Approximately 150 exhibits were received at trial.
The statement of facts in
defendants’ opening brief mentions the name of one witness—alleged victim Gary
Michelson—and cites to eight exhibits.
The first four paragraphs are devoted to trial testimony and evidence,
primarily highlighting evidence favorable to the defense. The final nine paragraphs included in the
statement of facts section of the opening brief describe the procedural history
of the case with no reference to the evidence presented at trial. Defendants’ reply brief fares no better,
again failing to address the totality of the evidence from trial in the light
most favorable to the prosecution. By
way of comparison, the statement of facts in the respondent’s brief filed by
the Attorney General is 10 pages long.
In an effort to cure the defect in
briefing so that the sufficiency of the evidence contention could be reached on
the merits, this court solicited additional briefing after oral argument to
clarify the evidence pertaining to count 46.
We specifically directed the parties to “discuss in detail whether or
not the emails that were first adduced at trial during the prosecutor’s closing
argument, which neither appellants nor respondent discussed in their respective
briefs, provide sufficient evidence to support the count 46 convictions.”
Defendants’ letter brief failed to
set forth the contents of the e-mails.
Instead, defendants argued that “it is crucial to understand the
skepticism with which this extremely prejudicial evidence must be viewed” due
to a break in the chain of custody, a meritless issue not presented on appeal
nor pertinent to this court’s request for specific briefing. Thereafter, defendants’ letter brief goes on
to describe the e-mails as “disjunctive, unclear, confusing and in no way offer
any evidence supporting the Count 46 conviction.” Defendants then discuss what the e-mails do
not establish, referring to the cost of the properties, what Michelson paid,
and the absence of e-mail reference to any property related to count 46. Thus, defendants failed to discuss the actual
contents of the e-mails in the light most favorable to the judgment.
In contrast, the Attorney General
responded to the court’s request for additional briefing with a summary of the
various e-mails she contends demonstrate defendants’ fraudulent scheme. Without conducting a comprehensive summary of
the entirety of the Attorney General’s review of the e-mails, it is sufficient
to note that the Attorney General cites to e-mails between defendants
that: suggest inflating prices of
property by millions of dollars to be sold to Michelson without telling him;
discuss destroying original documents; refer to raising the price of properties
to Michelson by 35 percent over what they paid; identify funds received from
Michelson for properties covered by the charge in count 46; set forth
defendants’ fear that Michelson would find out Campbell had been receiving more
than half of what Powers received on the property sales and they could end up
“in a lawsuit right now with [Powers’s] bank records open on his desk with
possibly both of us in jail, broke, or both”; and discuss the need to hide
“about $6M worth of profits and make it look like part of the acquisition
costs.”
Analysis
Based on
the above description of the briefing, we have no difficulty concluding
defendants have forfeited their claim of insufficiency of the evidence. At no point have defendants set forth all of
the material evidence relating to count 46 in the light most favorable to the
People. Under these circumstances,
defendants have not sustained their burden of showing the evidence was
insufficient. (People v. Sanghera, supra,
139 Cal.App.4th at p. 1574.)
Statute of Limitations
Defendants
argue that the statute of limitations under section 803, subdivision (c)(1) for
grand theft was triggered no later than March 15, 2006, based on Michelson’s
testimony that he knew “something was very wrong” when he learned for the first
time that “[Powers] was taking multiple levels of commissions.” They contend that the felony complaint filed
on March 21, 2013, was filed beyond the limitations period. Defendants also argue that the theft alleged
in count 46 was completed in 2005 , and Michelson was reasonably suspicious
throughout 2005, expressing concern about the transactions and the commissions
Powers was receiving, and asking for copies of all purchase agreements and
corresponding checks for the first time.
Citing People v. Zamora (1976)
18 Cal.3d 538, 561-562, defendants also make the argument that the statute of
limitations period began to run in 2005 when Michelson, as a reasonably prudent
person, would have been suspicious of fraud.
Standard
of Review
“When an
issue involving the statute of limitations has been tried, we review the record
to determine whether substantial evidence supports the findings of the trier of
fact. (People v. Ruiloba (2005)
131 Cal.App.4th 674, 681-682; People v. Padfield (1982) 136 Cal.App.3d
218, 226.) Statutes of limitation must
be strictly construed in favor of a defendant.
(People v. Zamora (1976) 18 Cal.3d 538, 574 (Zamora).) The statute of limitations is not an element
of the crime; although the prosecution has the burden of proving the criminal
action was commenced within the applicable limitations period, its burden of
proof is by a preponderance of the evidence.
(Id. at p. 565,
fn. 27; People v. Smith (2002) 98 Cal.App.4th 1182, 1187.)” (People
v. Castillo (2008) 168 Cal.App.4th 364, 369.)
The
four-year statute of limitations for grand theft “does not commence to run
until the discovery of the offense . . . .”
(§ 803, subd. (c)(1).) In
addition, the statute of limitations is tolled for “a maximum of three years
during which the defendant in not within the state . . . .” (Id.
at subd. (d).)
The “lack
of actual knowledge is not required to bring the ‘discovery’ provision of
[former] section 800 into play. The
crucial determination is whether law enforcement authorities or the victim had
actual notice of circumstances sufficient to make them suspicious of fraud
thereby leading them to make inquiries which might have revealed the
fraud.” (People v. Zamora, supra, 18
Cal.3d at pp. 571-572, italics omitted.)
It is settled that discovery of
loss by a victim is alone insufficient to commence the running of the
limitations period. (People v. Petronella (2013) 218
Cal.App.4th 945, 956; People v. Soni (2005) 134 Cal.App.4th 1510, 1518;
People v. Crossman (1989) 210 Cal.App.3d 476, 481.) “‘For the purposes of triggering the statute
of limitations under a similar tolling statute, a discovery was held not to
have occurred even though officials learned substantial facts which would have
only created a suspicion of wrongdoing.
(Com. v. Hawkins (1982) 294 Pa.Super 57.) Similarly, in People v. Swinney [1975]
46 Cal.App.3d 332, 337, the court concluded the triggering of a period of
limitations on concealed thefts requires more than mere discovery of a loss; it
requires an awareness the loss occurred by virtue of a criminal agency. Thus, “discovery” calls for awareness of the
crime, not merely the loss.’ (People
v. Kronemyer (1987) 189 Cal.App.3d 314, 334; italics in original.)” (People
v. Crossman, supra, at p. 481.)
Facts
Relating to the Statute of Limitations Issue
Our review
of the record reveals the following facts constituting substantial evidence to
support the jury’s finding.
Michelson’s
purchases of Costa Rican properties increased in 2005. David Cohen, Michelson’s financial advisor,
was responsible for obtaining the necessary documentation for Michelson’s tax
returns. He at first tried to rely on
documents provided by Michelson to reconcile purchases and expenses, but the
documents were not sufficient,[2]
so he turned to Powers for help. Powers
wrote to Michelson on November 29, 2005 (Exh. No. 133), with a variety of
explanations for why complete documentation was unavailable, including an
inability to make copies, family disputes among sellers, and confusing payment
schedules. He expressed a desire to
create a new system to provide “a much clearer and transparent picture of all
our transactions in the future” while assuring Michelson that “[t]he most
important thing here is to know that all these transactions over the last few
years have been done with great diligence . . . .” In 2005, Cohen told Michelson something was
very wrong. Michelson then told Powers
that Cohen thought something was wrong because they could not get the
records. Cohen and Michelson repeatedly
asked Powers for documentation at the end of 2005 through 2006. Powers
promised the documents, but they were never sufficient.
On March 15, 2006, Powers wrote a letter to Cohen (Exh. No. 41) summarizing property purchases in 2005, and reflecting that Powers received commissions averaging 5.6 percent but varying substantially in percentage among the various properties. This was the first time Michelson learned that Powers was taking multiple levels of commissions. He was concerned with what Powers was doing, but was not suspicious. In a letter to Michelson dated May 18, 2006 (Exh. No. 20), Powers identified additional properties to purchase and indicated he would be requesting funds. He also wrote, “The accounting issue is almost completed, so they tell me, and should be sent out to you next week . . . .”
On March 15, 2006, Powers wrote a letter to Cohen (Exh. No. 41) summarizing property purchases in 2005, and reflecting that Powers received commissions averaging 5.6 percent but varying substantially in percentage among the various properties. This was the first time Michelson learned that Powers was taking multiple levels of commissions. He was concerned with what Powers was doing, but was not suspicious. In a letter to Michelson dated May 18, 2006 (Exh. No. 20), Powers identified additional properties to purchase and indicated he would be requesting funds. He also wrote, “The accounting issue is almost completed, so they tell me, and should be sent out to you next week . . . .”
Michelson
went to Costa Rica from March 23-26, 2006, intending to hire another person,
Andres Marten, to take over his operations.
On March 24 and 25, 2006, Michelson toured the properties that had been
purchased, finding them neither lush nor densely planted with trees. Defendants assured Michelson the properties
did not look lush because it was the dry season, and that the properties were
70 percent planted with teak trees.
In 2007, Michelson filed a criminal
complaint in Costa Rica and a civil action against Powers. Before learning that Campbell had received
over $1 million from the transactions, Michelson bought out Campbell’s share of
the business for $500,000, which was more than its value.
Analysis
Substantial
evidence supports the jury’s finding that count 46 was not barred by the
statute of limitations. Contrary to
defendants’ argument, the statute of limitations period did not commence, as a
matter of law, when Michelson learned on March 15, 2006, that Powers was
collecting multiple levels of commissions.
Michelson testified he was concerned with what Powers was doing, but he
specifically testified he was not suspicious.
The jury could take into account Michelson’s testimony that Powers was
actually collecting less than the 6 percent commissions agreed to by the
parties, as evidence that a reasonably prudent person in Michelson’s position
had no reason to suspect criminal wrongdoing.
The jury could rationally conclude the concerns expressed by Michelson
were a product of communication problems dating back to 2001. Significantly, Powers continued to secure
properties for Michelson to purchase, and Powers assured Michelson in his
letter dated May 18, 2006, that the accounting issues were almost
completed.
We also reject defendants’
contention that the statute of limitations was triggered in 2005 when Michelson
knew “something was very wrong.”
Michelson explained that he told Powers that Cohen felt something was
wrong with the production of documentation.
Michelson never testified that either he, or Cohen, believed the
existence of a criminal agency was the root cause of the problem obtaining the
documents needed for tax preparation purposes.
The jury could rationally conclude that the problem presented amounted
to proof of communication issues relating to transactions in a foreign country,
rather than the existence of a criminal agency.
Viewed in the light most favorable
to the judgment, we hold that a rational trier of fact could find that
Michelson was unaware of either a loss or the existence of a criminal agency
until he personally observed the state of the purchased land on March 24 and
25, 2006, during his visit to Costa Rica.
Defendants have not established a violation of the statute of
limitations as a matter of law.
Refusal to Instruct on Withholding of Evidence by the Prosecution
Defendants
argue that the prosecution failed to turn over a computer hard drive seized
from Powers in Costa Rica, and that the trial court erred in refusing to
instruct the jury on the discovery failure pursuant to CALCRIM No. 306. Defendants argue they had specifically
requested disclosure of all evidence pursuant to the discovery provisions of
section 1054.1 prior to trial, but the hard drive was not included in the
prosecution’s discovery. Defendants
argue the discovery failure “was extremely concerning” because the prosecutor
showed the jury “extremely prejudicial emails allegedly sent between
defendants” and there was “no proper chain of custody for the computers that
were seized from Powers’s home in Costa Rica.”
Penal Code Section 1054.1 and
CALCRIM No. 306
Section 1054.1 provides in
pertinent part as follows: “The
prosecuting attorney shall disclose to the defendant or his or her attorney all
of the following materials and information, if it is in the possession of the
prosecuting attorney or if the prosecuting attorney knows it to be in the
possession of the investigating agencies:
[¶] . . . [¶] (c) All relevant
real evidence seized or obtained as a part of the investigation of the offenses
charged.” The disclosure is to be made
at least 30 days prior to trial. (§
1054.7.) Upon finding a violation of the
criminal discovery statutes, the court “may advise the jury of any failure or
refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).)
CALCRIM No. 306 provides in
pertinent as follows: “Both the People
and the defense must disclose their evidence to the other side before trial,
within the time limits set by law. Failure
to follow this rule may deny the other side the chance to produce all relevant
evidence, to counter opposing evidence, or to receive a fair trial. [¶] An
attorney for the (People/defense) failed to disclose: ________ <describe evidence that was not
disclosed> [within the legal time period]. [¶] In
evaluating the weight and significance of that evidence, you may consider the
effect, if any, of that late disclosure.
[¶] [However, the fact that the
defendant’s attorney failed to disclose evidence [within the legal time period]
is not evidence that the defendant committed a crime.] [¶] <Consider
for multiple defendant cases> [¶] [You
must not consider the fact that an attorney for defendant ________ <insert
defendant’s name> failed to disclose evidence when you decide the
charges against defendant[s] ________ <insert names of other
defendant[s]>.]”
Analysis
We need not address the merits of
this contention, as defendants have failed to establish the prejudice necessary
to justify reversal of the judgment.
Defendants’ opening brief admits the hard drive was seized from Powers’s
home in Costa Rica. There is nothing in
the record to suggest the e-mails presented to the jury do not accurately
reflect what was on the hard drive.
Although defendants contend there was insufficient proof of chain of
custody of the hard drive, on appeal they make no substantive argument on this
issue supported by citation of authority.
As noted by the trial court,
defendants were aware of the existence of the hard drive and the e-mails from
the time of the preliminary hearing, and although a general discovery request
for all relevant evidence was made in a timely fashion, defendants never
expressly asked for production of the hard drive. Under the circumstances of this case, it is
not reasonably probable defendants would have received a more favorable result
had the court instructed the jury pursuant to CALCRIM No. 306. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818,
836.)
Reduction to
Misdemeanor Theft under Penal Code Section 1157
Defendants argues the information
alleged a theft in excess of $400, the jury was not instructed under current
law that a grand theft is committed by the taking in excess of $950, the jury
returned no verdict finding the amount of the loss in count 46, and pursuant to
section 1157, the verdict must be construed to be petty theft. Although defendants are correct the
information alleged only a taking in excess of $400 and the jury was not
instructed on the dollar amount required for grand theft, we conclude there is
no basis to reduce the offense to petty theft under the circumstances of this
case.
Penal Code Section 1157, Related
Statutes, and Applicable Case Law
“Whenever a defendant is convicted
of a crime or attempt to commit a crime which is distinguished into degrees,
the jury, or the court if a jury trial is waived, must find the degree of the
crime or attempted crime of which he is guilty.
Upon the failure of the jury or the court to so determine, the degree of
the crime or attempted crime of which the defendant is guilty, shall be deemed
to be of the lesser degree.” (§
1157.) “Theft is divided into two
degrees, the first of which is termed grand theft; the second, petty
theft.” (§ 486.) “[S]ection 952 states, in part: ‘In charging theft it shall be sufficient to
allege that the defendant unlawfully took the labor or property of
another.’ It is not required that the
charging document specify whether the alleged crime constitutes grand theft or
petty theft. (People v. Anderson
(1961) 55 Cal.2d 655, 657.)” (People v. Ortega (1998) 19 Cal.4th 686,
696-697 (Ortega).)
Analysis
The substantive charge in count 46
was grand theft. There was never a
suggestion in the trial court that, if defendants were guilty, the crime was
anything less than grand theft. The
defense position at trial was that defendants were not guilty; they did not
contend they were guilty of petty theft.
The trial court read the
information to the jury immediately prior to the opening statements of
counsel. The jury was told that count 46
alleged that defendants committed grand theft of money exceeding $400, in the
amount of $759,600, which was used to purchase Costa Rican parcels 5-85742,
5-29451, 5-34097, and 5-2962. As pled,
count 46 involved a charge that was unmistakably grand theft.
The jury convicted defendants of
the offense as charged. The verdict form
on count 46 stated that the jury found defendants “guilty of the crime of GRAND
THEFT OF PERSONAL PROPERTY, in violation of Penal Code Section 487(a), a
felony, as charged in Count 3 of the
Information.” (Italics added.) As charged in the information, defendants
committed grand theft of $759,600.
It is of no moment that the jury
found not true the two excessive taking special allegations alleged as to count
46. The allegation under section 186.11,
subdivision (a)(2)—that the taking resulted in a loss of more than $500,000—was
not applicable because this enhancement allegation requires commission of two
or more felonies, and defendants were only convicted of one felony. The excessive taking allegation under section
12022.6 was also inapplicable, because it alleged a cumulative loss greater
than $2.5 million. Here there was no
cumulative loss, and the amount of the theft in count 46 was far less than $2.5
million. There was no basis for the jury
to find true the second excessive taking allegation.
The trial court’s failure to
instruct on the $950 loss required for grand theft is harmless beyond a
reasonable doubt. (Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Mil (2012) 53 Cal.4th 400,
413-414.) By finding defendants guilty
as charged, the jury necessarily found a taking far in excess of $950. (See People
v. Preciado (1991) 233 Cal.App.3d 1244, 1247-1248 [jury verdict finding
defendant guilty of residential burglary as charged in the information
sufficient to fix the offense as burglary in the first degree].) The essence of count 46 was that Michelson
would not have wired $759,600 to Powers for the purchase of the properties
identified in count 46 had he known defendants were engaged in a scheme to
misrepresent the costs and quality of the properties, with the intent of
converting substantial portions of Michelson’s investments to their own
use.
Defendants persistently argue on
appeal that the offense in count 46 could amount to no more than a petty theft
because Michelson did not ultimately suffer a loss on his investments. From this premise, they contend the jury did
not necessarily find a theft of $950 or more.
This is incorrect, because loss to the victim is not an element of theft
by trick or device. (People v. Traster (2003) 111 Cal.App.4th
1377, 1390 [“The elements of theft by trick and device are: ‘(1) the obtaining of the possession of the
property of another by some trick or device; (2) the intent by the person so
obtaining possession to convert it to his own use and to permanently deprive
the owner of it; and (3) that the owner, although parting with possession to
such person, does not intend to transfer his title to that person’”].)
We are satisfied that any error in
failing to instruct on the $950 loss required for grand theft was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S.
18, 24.)
Reduction to a
Misdemeanor Pursuant to Proposition 47
Defendants next argue that pursuant
to the ameliorative provisions of Proposition 47, the conviction in count 46
must be reduced to a misdemeanor because there is no proof the value of the
property taken exceeded $950. (See §
490.2 [obtaining any property by theft where the value does not exceed $950
shall be treated as a misdemeanor].) We
reject the contention. As discussed in
the preceding section of this opinion, defendants took property by theft with a
value far in excess of $950. Section
490.2 has no application in this case.
Application of
Misdemeanor Statute of Limitations
Finally, defendants contend that
because, in their view, they were convicted of a misdemeanor, the one-year
statute of limitations applicable to misdemeanors applies, and the conviction
in count 46 is time-barred. We have
rejected the contentions that the conviction should be treated as a
misdemeanor. As a consequence, the
misdemeanor statute of limitations has no application.
DISPOSITION
The judgments are affirmed.
KRIEGLER, J.
We
concur:
TURNER, P. J.
[2] Having difficulty getting
information from Powers in Costa Rica was a problem dating back to 2001.
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