Opinion
No. B263026.
12-08-2015
THE PEOPLE, Plaintiff and Appellant, v. DOUGLAS LEE McGOWAN, Defendant and Respondent.
[Modification of opinion (242 Cal.App.4th 1; ___ Cal.Rptr.3d ___), upon denial of rehearing.]
THE COURT.—IT IS ORDERED that the opinion filed herein on November 12, 2015, be modified as follows:
Delete the second full paragraph on page 20 [242 Cal.App.4th 20, advance report, 5th full par.] that begins, "The Attorney General tries to distinguish. . .," and replace the paragraph with the following text:
The Attorney General tries to distinguish Packard by asserting that "there were two distinctive plans, not one ongoing scheme." She claims that, when defendants changed their strategy for overbilling in response to the Library's decision in 2006 to solicit bids for maintenance services, the change in the defendants' approach constituted a new scheme under Bailey. To the contrary, the "overarching scheme" (Whitmer, supra, 59 Cal.4th at p. 741) was to take money from the Library by overbilling for services. A change in some of the details in effectuating that overarching scheme did not constitute a new or different overarching scheme.
The facts of Bailey are analogous. In that case, the defendant was convicted of grand theft for taking welfare money while misrepresenting her circumstances. She claimed to be a single person when she was living with a man as husband and wife. At first, she claimed that the man was a renter in her home. But when a social worker told her that the man's income would be considered in determining her eligibility for assistance, she told the welfare department that the man had left the home, even though he had not. (Bailey, supra, 55 Cal.2d at pp. 515-516.) The Supreme Court held that these facts supported one conviction for grand theft, rather than a petty theft conviction
[242 Cal.App.4th 971c]
for each welfare payment, because the ongoing welfare payments were "motivated by one intention, one general impulse, and one plan. . . ." (Id. at p. 519.)
As in Bailey, the details of defendants' scheme in this case changed when necessary to continue the taking. That change in details did not constitute a different grand theft under the Bailey doctrine.
This modification does not change the judgment.
The petition for rehearing is denied.