Opinion
A129351
12-22-2011
THE PEOPLE, Plaintiff and Respondent, v. JAMES MCCAIN HAYS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR901178-A)
A jury convicted James McCain Hays of the theft of property from an elder. At the behest of defendant and his mother, the victim borrowed $60,000 from her bank to be used to help the Hays family purchase their residence. Rather than using the money for that purpose, defendant spent most of the funds to purchase personal consumption items for himself. On appeal, defendant maintains there was no substantial evidence in the record to support either of the theories of theft—larceny and embezzlement—on which the jury was instructed. We agree, and reverse his conviction for elder abuse.
I. BACKGROUND
Defendant was charged by information with theft and embezzlement of the property of an elder (Pen. Code, § 368, subd. (d); count I) and perjury (§ 118; count II). The complaint further alleged defendant intentionally took, damaged, and destroyed property that had a value exceeding $50,000 (§ 12022.6, former subd. (a)). Defendant pleaded not guilty and denied the special allegation.
All further statutory references are to the Penal Code unless otherwise indicated.
Codefendant, Billie J. Hays, who is defendant's mother, was charged with count I in the information. For purposes of clarity, and meaning no disrespect, we will use "Billie" when we refer to Billie J. Hays by name in this opinion.
Jury trial commenced on May 26, 2010. The jury returned its verdict on June 15, 2010, acquitting Billie, but finding defendant guilty of both charges against him, and finding the special allegation true. The trial court sentenced defendant to five years in prison. A. Trial Evidence
We summarize the evidence in the light most favorable to the judgment. (People v. Davis (1995) 10 Cal.4th 463, 509.)
As of 2000 or 2001, Billie and her husband, Bob Hays, had rented a residence on Palm Drive in Lakeport for approximately 15 years. Until Bob Hays passed away in 2000 or 2001, the rent had always been paid on time. In 2001, the Hayses's rent was $600 per month. Sometime after Bob passed away, defendant and his wife and children moved into the Palm Drive residence with defendant's mother. The property owner, Paulette Bogetti, began having problems collecting the rent. She called up Billie who told her that her son was handling her affairs. Bogetti contacted defendant who would sometimes pay the rent but, according to Bogetti, it "became a battle to have the rent paid on time," until she "finally had had enough." She began eviction proceedings and around the same time put the house on the market to sell.
Bogetti received an offer to purchase the property from the Hays family in May 2001, which she accepted. In June 2001, a loan the Hays family had been approved for was withdrawn due to credit issues. At some point in the process, defendant told a mortgage broker who had been assisting the Hays family he had an "ace in the hole," a friend of the family who could step up to the plate and be a lender for him. He described her as "an elderly Oriental lady that . . . had some money [and] was also a family friend."
Shirley Ow-Yang Barnes was 79 years old in early 2001 and lived in Clearlake Oaks. She and Billie had been friends since about 1980. Barnes also considered defendant to be her friend. Barnes testified Billie came to her a couple of times and asked her for money to pay the rent. On July 19, 2001, Barnes gave Billie a check for $2,000, and she loaned Billie another $1,000 on July 30. Barnes did this because Billie was her friend. Billie paid her back only $100 of the loan.
Defendant and Billie later approached Barnes and told her they were attempting to buy the Palm Drive house. Barnes testified: "They claimed they are my friends. They claim that they are being evicted from their home, that's why they said they have to buy the home or else move out, so I feel sorry." She further testified: "Billie—they both approached me. Billie approached me and say she being evicted and they have to buy the home or else they don't have any place to live, that's why I feel bad about them being evicted. And I give them the money to buy the home. And [defendant] the same way. He and the mother both." Asked what she "trust[ed] them to do with that money," Barnes testified, "They said they were going to buy the house. They were being evicted and wanted to buy the house."
Wilma Jo Swanson worked as a branch manager for Wells Fargo Bank in the summer of 2001. In June or July 2001, Barnes contacted Swanson about obtaining a loan from Wells Fargo secured by her home. Barnes introduced her to defendant and Billie, describing them as her "longtime friends." Defendant did most of the talking. Barnes told Swanson "[s]he was borrowing the money so that they wouldn't be kicked out of their house. That they needed to buy a house and that was what the money was to be used for."
Wells Fargo subsequently approved the loan and on August 10, 2001, Barnes defendant, and Billie returned to Swanson's branch bank. Barnes signed a fixed rate note in the amount of $60,000 on that date, which was secured by Barnes's home. Also on August 10, Barnes and Billie opened a checking account in both their names with the Hayses's Palm Drive address as the account holders' listed address (hereafter the Palm Drive account). An ATM/debit card linked to the account was issued to Billie; Barnes did not want one. On August 16, 2010, loan proceeds of $60,000 were deposited into Barnes's own checking account at Wells Fargo, which she held in her own name. The next day, $60,000 was transferred from Barnes's account to the Palm Drive account.
On August 10, 2001, using a temporary check provided by the bank, defendant wrote a check for $8,000 from the Palm Drive account made payable to Ray Parmentier (signed by defendant as "BJ Hays") for the purchase of a boat. The check did not clear when Parmentier first tried to cash it. When Parmentier resubmitted the check after August 17, it cleared. Another check written by "BJ Hays" on August 10 from the Palm Drive account was made payable to Tim Compton for $2,000. That check was for partial payment toward the purchase of a Ford Bronco by defendant. That check did not go through, but defendant wrote Compton three additional checks on the account in September 2001 totaling $6,000 to purchase the Bronco.
Defendant's perjury conviction, which is not in issue on the this appeal, was based on the fact that he falsely reported to the Department of Motor Vehicles, under penalty of perjury, that he had purchased the Bronco for $100.
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In addition to defendant's purchases of a boat and car, scores and scores of withdrawals continued to be made from the Palm Drive account after August 17, 2001, either by electronic debit (sometimes by defendant) or by check, until the account became overdrawn in March 2002. Among other expenses, the account was used to pay for rent on the Palm Drive residence, food, restaurant meals, gas, a cell phone, monthly cell phone service, stereo equipment, sporting goods including a bicycle, auto tires, computer hardware and software, and office supplies. The great majority of these expenses were incurred by defendant. Until the account became overdrawn, automatic monthly payments of $462.34 were also withdrawn from the account and applied to repayment of Barnes's $60,000 loan.
When Barnes learned from the bank that the account was overdrawn and a loan payment was overdue, she tried contacting Billie but could not get a hold of her. Barnes thought it was strange they had not made the loan payment because "they said they wanted the money to buy the house and being evicted." She drove to Lakeport and found defendant. She said, "Jim, the payment is due. . . . [D]on't you think you better make payment for the loan[?]" Defendant did not answer her but finally responded, "all right," when she pressed him to contact the bank about making a payment. Barnes left feeling he had no intention of paying. When Barnes later learned no loan payment had been made, she contacted defendant again, but he did not respond. At that point, Barnes went to the authorities and reported what had happened.
When an investigator contacted defendant on July 8, 2002, he stated "he had nothing to do with the loan and he did not have access to the funds." Defendant repeated that claim to the investigator 10 days later. B. Jury Instructions
The jury received the following pertinent instructions:
"The defendants are charged in Count 1 with theft of property from an elder. [¶] To prove that a defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed theft or embezzlement; [¶] 2. The property taken was owned by an elder; [¶] 3. The property, goods, or services obtained was worth more than $400; AND [¶] 4. The defendant knew or reasonably should have known that the owner of the property was an elder. [¶] To decide whether a defendant committed theft or embezzlement, please refer to the separate instructions that I will give you on those crimes. [¶] An elder is someone who is at least 65 years old. [¶] Property includes money, labor, or real or personal property." (CALCRIM No. 1807.)
"To prove that a defendant is guilty of theft by Larceny, the People must prove that: [¶] 1. The defendant took possession of property owned by someone else; [¶] 2. The defendant took the property without the owner's consent; [¶] 3. When the defendant took the property he or she intended to deprive the owner of it permanently or to remove it from the owner's possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property; [¶] AND [¶] 4. The defendant moved the property, even a small distance, and kept it for any period of time, however brief." (CALCRIM No. 1800.)
"To prove that a defendant is guilty of theft by embezzlement, the People must prove that: [¶] 1. An owner entrusted her property to the defendant; [¶] 2. The owner did so because she trusted the defendant; [¶] 3. The defendant fraudulently converted that property for his or her own benefit; [¶] AND [¶] 4. When the defendant converted the property, he or she intended to deprive the owner of its use. [¶] A person acts fraudulently when he or she takes undue advantage of another person or causes a loss to that person by breaching a duty, trust or confidence. [¶] A good faith belief in acting with authorization to use the property is a defense. [¶] In deciding whether the defendant believed that he or she had a right to the property and whether he or she held that belief in good faith, consider all the facts known to him or her at the time he or she obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith. [¶] Intent to restore the property to its owner is not a defense." (CALCRIM No. 1806.)
"The defendants are charged in Count 1 with theft. [¶] The defendants have been prosecuted for theft under two theories: Larceny and theft by embezzlement. [¶] Each theory of theft has different requirements, and I have instructed you on both. [¶] You may not find the defendant guilty of theft unless all of you agree that the People have proved that the defendant committed theft under at least one theory. But all of you do not have to agree on the same theory." (CALCRIM No. 1861.)
II. DISCUSSION
Defendant contends his conviction for theft of property from an elder must be reversed because no substantial evidence supports either theory of theft—theft by larceny or theft by embezzlement—on which the jury was instructed. For the reasons discussed below, we agree and reverse his conviction on that count.
When the sufficiency of the evidence is challenged on appeal, the court reviews the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758; People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, including reasonable inferences based on the evidence and excluding inferences based on speculation or conjecture. (People v. Tran (1996) 47 Cal.App.4th 759, 771-772.)
California consolidated its theft statutes in 1927 to include the common law crimes of larceny, embezzlement, false pretenses, and other theft-related crimes. (People v. Cuellar (2008) 165 Cal.App.4th 833, 837.) Although consolidated, the offenses are "aimed at different criminal acquisitive techniques" and have different substantive elements. (People v. Ashley (1954) 42 Cal.2d 246, 258.) While a general verdict of guilt under section 484 may be sustained on evidence establishing any one of the consolidated theft offenses, the offense shown by the evidence must normally be one on which the jury was instructed and thus could have reached its verdict. (People v. Curtin (1994) 22 Cal.App.4th 528, 531; but see People v. Fenderson (2010) 188 Cal.App.4th 625, 641 [rejecting per se reversal rule in such circumstances, especially where the instructional error actually increases the prosecution's burden of proof].) A. Larceny
"The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away." (People v. Davis (1998) 19 Cal.4th 301, 305 (Davis).) "The act of taking personal property from the possession of another is always a trespass unless the owner consents to the taking freely and unconditionally or the taker has a legal right to take the property." (Ibid., fns. omitted, italics added.)
Barnes testified she agreed to the loan to allow Billie and defendant to obtain $60,000 for a home. She also testified both defendant and his mother approached her for the money, both of them wanted to buy the house, and she gave "them" the money to buy the home. In a DVD recording of a 2002 interview with Barnes by a police investigator that was played for the jury, Barnes stated she understood when she transferred the money to the joint account that defendant was going to get the money and use it to purchase the house. When asked specifically whether it was Billie or defendant she gave the money to, Barnes responded, "They both approached me."
Here, Barnes consented to transferring the loan proceeds to a joint account to which Billie was a signator, knowing and expecting defendant would also have access to the funds. Barnes retained no control over expenditures from the account. She agreed to have the account statements sent to Billie's address and she declined having her own ATM card. There is also no evidence Billie did not approve the handling of the money by defendant. Billie testified she had no problem with defendant using that account because she regarded it as his money. She allowed defendant to use the ATM card and the checkbook. There was no testimony any funds were expended from the account without Billie's consent. As a co-owner of the account, Billie had full legal authority to permit such expenditures to be made in the absence of a legally enforceable agreement restricting Billie's withdrawal of funds from the account. (Lee v. Yang (2003) 111 Cal.App.4th 481, 489-490.)
While Barnes may have believed and trusted defendant would use the money to purchase the Palm Drive residence, there was no evidence of any legally enforceable agreement to that effect. The conversations the parties had about how the money was going to be used might have supported prosecution on a theory of false pretenses, but the jury was not instructed on that theory. It is immaterial that Barnes might have objected to defendant spending the money as he did. Billie did not object, and the prosecution therefore could not establish the element of a trespassory taking. Accordingly, there was no substantial evidence in the record that defendant committed theft from an elder by means of larceny. B. Embezzlement
"Theft by embezzlement is defined as the fraudulent appropriation of property by one to whom it has been entrusted. [Citations.] The gist of the offense is the appropriation to the defendant's own use of property delivered to him for a specified purpose other than his own enjoyment of it. . . . [¶] . . . [¶] . . . The offense of embezzlement is complete when the agent or trustee diverts the trust money from the trust purpose." (People v. Parker (1965) 235 Cal.App.2d 100, 108-109.) The property or money must be received by the defendant as an agent or bailee of the true owner. (People v. Borchers (1926) 199 Cal. 52, 56.)
It is essential to the commission of the offense that a relation of trust and confidence similar to a fiduciary relationship exist between the owner of the property alleged to have been embezzled and the person alleged to have appropriated it. (People v. Wooten (1996) 44 Cal.App.4th 1834, 1845; People v. Petrin (1954) 122 Cal.App.2d 578, 581 (Petrin).) This generally arises in the context of an employee-employer relationship or other legally recognized fiduciary relationship. (See, e.g., People v. Sprado (1925) 72 Cal.App. 582 [employer-employee]; People v. Hewlett (1951) 108 Cal.App.2d 358 [attorney-client].) An appropriation by the debtor in a debtor-creditor relationship does not constitute embezzlement. (Petrin, at p. 581.)
In our case, the defendant is not an agent of the victim. He and his mother along with Barnes negotiated the loan with Wells Fargo. Barnes agreed to the loan so defendant and Billie could get a home. Barnes was not the intended beneficiary of the arrangement and neither defendant nor his mother acted as her agents. Barnes knew defendant was getting the money and expected him to make the payments on the loan. The money was deposited into the account controlled equally by Barnes and Billie Hays, and the bank statements went to the Hays home.
The money was not being held for Barnes's benefit in any sense. It was provided to the Hays family to obtain a home. Barnes expected the money would not be returned to her but paid off to the bank. From August 2001 to March 2002, the bank deducted set amounts to cover payments on the loan. The relationship between Barnes and the Hays family was that of friendship alone. Borrowing money from Wells Fargo did not make the Hayses fiduciaries of Barnes because of the loan obligation. There was therefore no substantial evidence to sustain the prosecution's embezzlement theory.
Although there was evidence to support defendant's conviction on a theory that Barnes gave him access to the loan proceeds in reliance on a material misrepresentation or pretense the funds would be used to purchase a home, the jury was not instructed on that theory. Defendant's elder abuse conviction cannot be sustained based on a crime, such as false pretenses, that includes elements on which the jury was not instructed. (See CALCRIM No. 1804 [false pretenses requires proof of knowing and intentional deceit, reliance, and a false writing or corroboration, among other elements].)
For these reasons, defendant's conviction for theft of property from an elder must be reversed.
III. DISPOSITION
Defendant's conviction for theft of property from an elder is reversed. The sentence imposed for that count is vacated, and the case is remanded to the trial court for further proceedings.
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Margulies, Acting P.J.
We concur:
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Dondero, J.
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Banke, J.