Opinion
F052817
9-3-2008
THE PEOPLE, Plaintiff and Respondent, v. ATTILA BELA HORVATH, Defendant and Appellant.
Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
Appellant Attila Bela Horvath was convicted after court trial of violating Penal Code section 368, subdivision (e) by stealing more than $12,000 from Ross Anderson, who was then 97 years old. The court admitted appellant to probation for a period of five years with conditions including service of four months in jail, payment of victim and criminal restitution, attendance at Gamblers Anonymous meetings and completion of 300 hours of community service.
Unless otherwise specified all statutory references are to the Penal Code.
Appellant contends the court improperly denied his motion for acquittal. We disagree and will affirm.
FACTS
Because appellants sole issue is the denial of his acquittal motion that was made at the close of the Peoples case-in-chief, the statement of facts sets forth the evidence as it stood at that point. (See People v. Camp (1980) 104 Cal.App.3d 244, 247; People v. Trevino (1985) 39 Cal.3d 667, 695 (Trevino).)
I. Andersons Testimony
Anderson was 98 years old when he testified. His vision and hearing were poor.
In 1986, Anderson met appellants mother, Maria Horvath, when he placed his wife in the Creekside Rest Home in Sonora, which Maria owned and operated. Andersons wife died a few months later. Anderson moved into a small house that was located behind the large main house in which the patients lived. He helped Maria care for patients in exchange for free room and board. Maria eventually closed the rest home.
After Anderson had a heart attack in 1994, he moved into the main house. Anderson did not pay Maria for his room and board. However, he periodically gave Maria money to help her maintain the property. Anderson gave Maria $10,000 in 1989, $7,500 during the period of 1997 to 1999, and he paid off a mortgage of $ 66,000 on her property. Anderson gave Marias son, Geza Horvath, about $12,000 to pay off expenses from a business venture.
Anderson owns a house on Shaws Flat Road that he rented to Wanda Spenny after he moved to the small house. Spenny has paid $525 per month rent for the past 20 years. Anderson pays for repairs to the house. At some point in time, Anderson added Marias name on the title to the Shaws Flat Road house because she took care of him and because she is a very good woman.
Anderson also has a part ownership in a parcel of real property near the Yosemite Park entrance. Appellant was aware of Andersons interest in this property because they discussed it.
In 1999, appellant and his family moved from Pacific Grove into the small house.
Maria developed Alzheimers disease and appellant placed her in a residential care facility in 1999 or 2000. Anderson continued to reside in the main house. Appellant helped Anderson prepare food. Appellant also helped Anderson drop off, pick up and open his mail. Appellant did not help Anderson write out his checks to pay for bills. Appellant occasionally picked up and paid for Andersons prescription medicines.
Appellant began asking Anderson for money shortly after appellant and his family moved into the small house. Although appellant did not tell Anderson what he intended to use the money for, Anderson surmised that he needed it to pay for food and gasoline. Anderson gave appellant "a pretty good sum of money" almost every month. Anderson testified that he usually signed the checks and that appellant filled in the amount. Most of the time appellant would tell Anderson the amount of the check. However, on several occasions the checks appellant cashed were for significantly more money than Anderson thought he was giving to appellant. Anderson was shocked at the amount of money appellant needed, but he did not say anything to appellant about it because "we were friends, I felt sorry for him." Anderson did not expect repayment. Appellant never told him that he was borrowing the money or that he would pay Anderson back.
Over the years, Anderson gave appellant "many thousands of dollars" to help maintain the property and cover everyday expenses. Anderson never asked for an accounting because he "figured we were pretty good friends, so it was just a friendly gesture on my part." However, during redirect examination Anderson was shown checks payable to appellant during 2005 totaling over $22,000. Anderson was "astounded" and testified that all of these checks "are fake." Anderson did not understand who wrote these checks.
Anderson also gifted money to appellant and appellants wife, Dawn Horvath. Other than for a birthday or Christmas gift, Anderson testified that he never wrote a check payable to Dawn because he did not feel any closeness or warmth toward her.
Soon after appellant and his family moved into the small house, appellant asked Anderson to put his name on the title to the Shaws Flat Road house. Anderson agreed because he thought that appellant was a very good friend. Anderson learned at a prior court hearing that the name Michael Thompson appeared on the title to the Shaws Flat Road house. Appellant never talked to Anderson about putting Thompsons name on the title and appellant did not tell Anderson that he put Thompsons name on the title to settle a debt appellant owed for Marias care.
Anderson suffered severe stomach pains and was hospitalized on or about February 14, 2006. About two weeks later, Anderson was transferred to Mark Twain Convalescent Hospital (Mark Twain), where he currently resides.
Anderson testified that appellant filled out the forms for him to receive Medi-Cal benefits. Appellant told Anderson "it was quite a job for him." Appellant told him that "he had a problem filling out [the] papers for me," but appellant did not "go into detail." Appellant did not show Anderson any of the forms. Anderson does not recall signing any papers for Medi-Cal.
About a week before Anderson was hospitalized he signed three or four checks for appellant to use in case appellant needed money for "[n]ecessary expenses as they came up." There was no agreement between appellant and Anderson concerning payment of any expenses that Anderson might incur while he was hospitalized. Anderson does not remember signing any blank checks for appellant while he was hospitalized or convalescing at Mark Twain.
Anderson identified 12 checks drawn on his personal checking account at World Savings that were dated between January 29, 2006, and May 25, 2006 (exhibits 1-12). Ten of the checks were payable to appellant and two of them were payable to Dawn. All the checks were deposited into appellants checking account. The elder theft charge is based on these 12 checks. Anderson does not have any memory of the circumstances surrounding the execution of these checks, although he recognized the signature on some of the checks as his. Anderson does not have any idea what bills or expenses the checks were intended to pay. Anderson did not agree to give appellant or Dawn the sums reflected in these 12 checks. He does not remember signing these checks or talking to appellant about them.
Exhibit number 1 is check 4991 payable to appellant for $734, dated January 29, 2006. Anderson testified that he did not write appellants name on the check but the signature looks like his handwriting. He does not remember agreeing to give or loan appellant $734. Exhibit 2 is check 4990 payable to appellant for $1,728, dated January 30, 2006. The word "taxes" is written on the memo line. Anderson testified that he might have signed it but he does not recall agreeing to give or loan appellant $1,728. Exhibit 3 is check 5041 payable to appellant for $2,700 dated February 20, 2006. Anderson did not write appellants name or the dollar amount on it. He did not agree to give appellant $2,700. Exhibit 4 is check 5043 payable to appellant for $750 dated March 3, 2006. The word "taxes" is written on the memo line. He did not agree to give appellant $ 750 for taxes. Exhibit 5 is check number 5044 payable to Dawn for $500 dated March 6, 2006. Anderson testified he did not agree to give Dawn $500 and no one asked him for this sum of money. Exhibit 6 is check 5046 payable to appellant for $430 dated March 14, 2006. Anderson testified that he did not agree to give appellant $430 and he does not have any idea what this sum was to be used for. He did not recognize the signature on this check as his. Exhibit 7 is check 5047 for $300 payable to appellant dated March 29, 2006. Anderson testified the signature could be his. He did not agree to give appellant $ 300 and he does not have any idea what this sum was to be used for. Exhibit 8 is check number 5048 to appellant for $ 1,621 dated April 4, 2006. Anderson testified that it was not his signature on the check. He did not agree to give appellant $ 1,621 and he does not know what this sum was to be used for. Exhibit 9 is check 5057 payable to appellant for $1,725 dated April 17, 2006. Anderson testified that he does not believe it was his signature on this check. He did not agree to give appellant $1,725 and he does not have any idea what this sum was to be used for. Exhibit 10 is check 5059 payable to appellant for $700 dated May 8, 2006. Anderson testified that he did not think it was his signature on this check and that he did not agree to give appellant $700. Exhibit number 11 is check 5049 to appellant for $632 dated May 24, 2006. Anderson testified that he did not think it was his signature on the check and that he did not agree to give appellant $632. Exhibit 12 is check 5060 payable to Dawn for $455 dated May 25, 2006. Anderson testified that the signature on the check was not his and that this check was a forgery. He did not agree to give Dawn $ 455. The parties stipulated that exhibits 1 through 12 were deposited into appellant and Dawns bank account at the Umpqua Bank and that exhibit 9 was returned for insufficient funds.
Anderson testified that he only saw appellant a couple of times after he was transferred to Mark Twain. He does not recall appellant telling him that he needed some money during any of these visits and he does not remember appellant asking to borrow money from him. Anderson did not agree to give Dawn any money while he was hospitalized. He does not remember talking to appellant about the checks with his signature on them and he does not remember writing the checks. Appellant did not show Anderson any tax bills and Anderson does not remember talking to appellant about taxes during this time period.
Yet, during cross-examination Anderson testified that he does not know of any time that appellant used his money without his permission and he does not remember appellant taking any checks from him without his permission. Anderson testified that he is "not part of the people that are charging [appellant] with whatever."
Anderson does not recall writing other checks while he was hospitalized. Anderson testified that it was not his signature on check number 5061 payable to Mark Twain for $1,085 dated June 7, 2006 (exhibit 20). Anderson does not remember signing check number 5071 payable to Mark Twain for $1,335 dated August 6, 2006 (exhibit 13). Anderson does not recall writing a check for $100 to Spenny, or a check for $100 to Father Wolf Krismanits.
Anderson eventually gave his checkbook to Nancy White, who is the social services director at Mark Twain, after she asked to keep it for him.
After Anderson was transferred to Mark Twain, he asked Spenny to look at his bank statements to see if there was anything unusual occurring. However, he is not certain why he asked her to do so, stating "Well, I dont know at the time why I did come — I was just wondering myself, why I did ask. I dont know. I didnt trust Attila for something or other, that had something to do with it, apparently, as far as I can remember." Defense counsel asked Anderson if he recalled Spenny showing him some checks that appellant had written to himself. Anderson answered, "Attila wrote checks to himself?" Defense counsel replied, "Right. There were checks that had been written to Attila and signed by you for amounts more than you thought. Do you remember that?" Anderson responded, "No, I dont recall, sir."
On or about July 25, 2006, Anderson attended a meeting with Spenny, the prosecutor, a police officer and others to investigate whether appellant was stealing money from appellant. Afterward, Anderson signed a new power of attorney revoking appellant in favor of Spenny.
Anderson recalled telling Diana Arvin, who is the business manager at Mark Twain, he thought appellant was paying his bills for him with the money from the disputed checks. He was surprised when Spenny showed him how much money he owed Mark Twain and he was concerned about whether he could stay there or not.
Anderson wrote a letter to appellant that was postmarked July 24, 2006 (exhibit 26). Therein, Anderson wrote that he hoped he had not done anything "to displease" appellant. Anderson also wrote that appellant was "one very special man" and that he has "the greatest respect and admiration and a deep respect and sincere feeling of and fellowship, sir."
At some point during the five years prior to his hospitalization, appellant wrote a will leaving his personal property to appellant and the rest of his estate to charity. Sometime after July of 2006, Anderson changed his will and left his entire estate to Spenny. Anderson did not recognize his signature on the new will. Anderson testified that "[q]uite a bit, a few things," that he looked at during his testimony are "kind of a blur."
II. Wanda Spennys Testimony
Spenny met Anderson 20 years ago when she began renting the Shaws Flat Road house. She began delivering her rent check to Anderson about 10 years ago, after Anderson stopped driving. At some point, she began to deposit the rent check directly to his bank account. She usually took mail to Anderson every week or spoke with him on the telephone. After Maria was transferred to a care facility, Spenny felt that she was not "as welcomed" to visit Anderson. On a couple of occasions, appellant asked her not to see Anderson because he was not feeling well. This did not make sense to her because she previously visited Anderson when he was sick and Anderson always told her to wake him up if he was sleeping.
Beginning in May 2005 Andersons bank statements were sent to the Shaws Flat Road address. After Anderson entered Mark Twain, he asked Spenny to review his bank statements. One day Anderson received an insufficient funds notice from World Bank for check 5057 payable to appellant for $1,725 dated April 17, 2006 (exhibit 9). Spenny told Anderson about the insufficient funds notice and Anderson asked her to go to his bank and inquire about it. Spenny discussed the insufficient funds notice with Wendi Thiel-Cook, who is the manager of the Sonora branch of World Savings Bank. Spenny never told anyone that she thought the Horvaths were taking money from Anderson without his permission.
III. Kim Everlys Testimony
Kim Everly is employed as a nurses assistant at Mark Twain. Appellant introduced himself to Everly when Anderson was admitted to Mark Twain. Appellant told Everly that he "was in charge of Ross Andersons care and finances." Everly subsequently saw appellant and Anderson together on three occasions, all occurring within a one-month period during the spring of 2006.
On the first occasion, Everly entered Andersons room when appellant was visiting. Anderson introduced appellant to Everly. Everly excused herself and went to care for appellants roommate. She overheard appellant say, "[T]his needs to be signed." Anderson asked appellant what it was for and who it was to be paid to. Appellant said, "Dont worry about that, Ill take care of it, this is going to take care of your bills." She looked over and "watched [appellant] flip approximately six checks" for Anderson to sign. Everly clearly recalled that appellant said, "[T]hese will pay your bills," because Anderson repeatedly asked, "Whats this for, whos this paying" and "[W]hats this going to take care of[?]"
A few days later, Everly saw appellant walk into Andersons room carrying a black trash bag. When she walked into Andersons room, 20 or 30 pieces of mail were piled on Andersons bed. Appellant was holding envelopes and they were conversing.
Approximately a week later, Everly saw appellant sitting on Andersons bed with the checkbook in his hand. She saw Anderson signing more checks. She did not hear appellant say anything to Anderson.
Everly thought the amount of checks Anderson was signing was unusual because it "seemed over an [sic] abundance for someone in a care facility." She reported her concern to Nancy White and told a few other coworkers about it.
Anderson wrote a check payable to Everlys daughter as a birthday gift. Everly turned the check into the office.
IV. Pamela Venables Testimony
Pamela Venable is the admissions director at Mark Twain. Anderson was admitted on February 27, 2006. Appellant met with Venable. Appellant gave her a copy of his power of attorney for Anderson. Venable told him about the Medicare per day share of cost that accrues after the first 20 days of skilled services. Appellant said that Anderson would not have enough money to pay his share of cost. Venable and appellant reviewed the form that makes responsible parties aware of how to apply for Medi-Cal. Appellant told her he was familiar with the process because he had a family member in another facility. Venable asked appellant questions about Andersons finances and wrote appellants responses on a form that is used to establish that finances were discussed with a responsible party. Appellant told her that Anderson did not own any real estate. Appellant estimated Andersons monthly social security as $908, his monthly pension as $104 and his checking account balance as $600. Appellant acknowledged that the form was true to the best of his knowledge. Venable did not fill out the Medi-Cal application for appellant.
At some point in time, Anderson was qualified for Medi-Cal. Medi-Cal is paying the cost of Andersons residence at Mark Twain, with the exception of Andersons $1,300 per month share of the cost.
V. Nancy Whites Testimony
Nancy White is the social services director at Mark Twain. A staff member told her that Anderson had checks in his possession. White asked Anderson if he would like her to keep his checks safe for him. At that point he declined. About a month later, White obtained Andersons checkbook.
White had contact with appellant on three occasions. On the third occasion, appellant handed her a check payable to Mark Twain. Appellant gave her this check after she had taken possession of Andersons "other checks."
VI. Diana Arvins Testimony
Diana Arvin is the business manager at Mark Twain. Beginning in March of 2006, she sent monthly coinsurance bill statements to appellants address in Sonora because appellant and Dawn were listed as the responsible parties for Anderson. When she did not receive payment, she made monthly phone calls and left messages asking for a return phone call.
On July 20, Spenny called Mark Twain to speak to Anderson. Arvin told Spenny that she was trying to contact appellant. On that same day, Arvin had a conversation with Anderson during which she asked him if he signed the $1,625 check payable to appellant that had not cleared because of insufficient funds. Anderson replied, "I havent signed any checks."
Arvin asked White to call appellant. White called appellant and left a message. When appellant returned Whites call, White transferred the call to Arvin. Arvin asked appellant why Andersons account had not been paid. Appellant told her that he did not know that Anderson owed any money to Mark Twain. He told her that he thought Anderson had 100 days of Medicare coverage. He said that he was not aware of any share of cost. Arvin re-explained the copayment obligations to appellant. When Arvin asked appellant why he did not respond to her efforts to contact him, appellant did not reply.
Arvin called the ombudsmans office to report suspected financial elder abuse and filled out "an SOC form for the state."
On July 25, 2006, a meeting was held between Anderson, Arvin, ombudsman Kathi Toepel, the prosecutor, Sonora Police Department Investigator Hal Prock and a representative from Adult Protective Services to discuss "where [Andersons] money was going" and "the checks that were written." Anderson "said that he had not signed those checks."
On July 26, 2006, Arvin sent appellant a certified letter containing a statement regarding financial responsibilities, a notice regarding standards for Medi-Cal eligibility and a letter stating that she did not know why Andersons share of the cost was not being paid. Appellant signed for the letter and he left a message for her on July 27, 2006. Arvin returned his call on July 28, 2006. Appellant told her that Anderson did not have any money. Arvin asked him where the money had gone and appellant told her that he did not have any idea where it went. Appellant told her that to settle the account Anderson would have to sell his house. Appellant also told Arvin that he had an appointment with a Medi-Cal worker. Appellant promised to speak to her after he settled matters with Medi-Cal.
On August 7, 2006, Arvin found on her desk check number 5071 payable to Mark Twain for $1,335 and dated August 6, 2006 (exhibit 13). Arvin knew that sometime in early July Andersons checks had been removed from his possession. She was concerned whether there was money to cover this check in Andersons account. Arvin telephoned World Savings and spoke to Wendi Thiel-Cook. Based on this conversation, Arvin wrote void across the check.
VII. Wendi Thiel-Cooks Testimony
Wendi Thiel-Cook is the manager of the Sonora branch of World Bank. She testified that she telephoned Anderson after she spoke with Spenny in April 2006. Anderson did not know why he did not have enough money in his account to cover the check that was returned for insufficient funds. Anderson told her that appellant was supposed to be paying his bills and "that he signed checks for Attila to pay check — to pay his bills."
On July 5, 2006 Anderson called Thiel-Cook and told her that he needed checks and that he wanted them to have the Shaws Flat Road address on them. The new checks were sent to Spenny on July 7, 2006. Thiel-Cook knew that Anderson did not want checks with the old address to be honored.
On August 7, 2006, Arvin called World Bank and inquired about check number 5071 payable to Mark Twain for $1,335 (exhibit 13). Thiel-Cook explained that World Bank would not accept the check because it did not have the new address on it and told Arvin to write void on the check.
Thiel-Cook reviewed Andersons checking account history and noticed that a lot of checks had been written to appellant and his wife. During the period of April 2005 to April 2006, money that was deposited to Andersons account would quickly be depleted. Thiel-Cook testified that the signatures on some of the checks cashed in 2005 were difficult to match with Andersons signature cards.
VIII. Hal Procks Testimony
Sonora Police Department Investigator Hal Prock testified that he called appellant on July 18, 2006. Appellant told him that he had a power of attorney for Anderson and said that he was paying Andersons bills and helping Anderson obtain Medi-Cal. Appellant said he was doing "like a spenddown on Mr. Andersons account, that he was taking the money out of the account for Mr. Anderson so that the state basically wouldnt take his money and so hed qualify for the Medi-Cal, and that was the standard procedure." Appellant did not tell Prock how much money he was taking out of Andersons account or tell Prock where the money from Andersons account was going. Appellant said that he was not paying anything on the monthly copay bill owed to Mark Twain because he was attempting to obtain Medi-Cal for Anderson.
After obtaining Andersons bank records, Prock interviewed appellant on August 16, 2006. Appellant confirmed as correct Procks statement that several checks had been signed by Anderson and placed in appellants account. Prock asked appellant why the money was going from Andersons account into appellants account. Appellant replied:
"For many, many years taking care of him and over the past years, uh Ive asked him for some financial help, and I always go to him and ask him whats going on, hey we need a little extra cash or whatever and hes always been grateful and very happy to do this. So um, he got sick in January or February of this year, took really ill and uh I mean I dont have any control over his finances or anything like that. And every time Ive gone to him and asked him. So hes been totally aware, I mean Ive asked him if thats okay [a]nd he said yeah. And I filled out the check and he signed it for me."
Appellant said that Anderson "knows whats been going on so this is a total surprise to me. I have no idea why he would even do this. I know hes been bothered by a lady that keeps bugging him and shes always been a pain in the ass for us. I cant remember her last name, her first name is Wanda." Appellant said that Wanda has "[h]er own agenda" and that "[s]he wants to have control over everything thats happened." Appellant said that "every one of those [checks] was in front of him with his signature on it. You know I asked. Im not going to take shit from him."
Appellant said that the money Anderson gave him "went towards the house, family and everything. Its just total survival, thats all it was." Prock asked appellant if the checks that had "taxes" written in the memo line were intended to help appellant "pay for your taxes." Appellant replied, "Huh, huh. Yep. Just trying to catch up and, and the other thing to, to be honest with you, I mean I didnt really want to tell him what some of the stuff was for, it was just to catch up with everything else. I just asked him if that was okay and he said yeah." Appellant said that Anderson approved appellants placement of Thompsons name on the deed to the Shaw Flats Road house.
After obtaining appellants bank records from December 19, 2005, to June 16, 2006, Prock re-interviewed appellant on August 17, 2006. Prock told appellant that he found a large amount of charges to the Black Oak Casino. Prock said that "$ 75,000 has gone through your banking account since January of this year." Appellant admitted spending money at the casino but said, "whenever we got money from Ross, that went right to the house or whatever, it never went out there." Appellant said that he never used Andersons money to gamble but only "to pay bills or whatever." Appellant said that "most of the checks that we got from him we actually tore up." However, if he "got needy for something or desperate, Id always ask him." When Prock asked appellant if he repaid Anderson the money that Anderson gave him, appellant replied, "We had a gentlemans agreement that when my property sold, and were getting ready to sell, that I would pay him back everything." Appellant said that "probably my biggest downfall is being a terrible bookkeeper." Appellant said that the last time he asked Anderson for money was in June. Appellant said, "And, you know, I knew that he wouldnt have anything anyway, you know, because of his copayments and stuff, this time I asked him, couldnt."
Prock interviewed Everly on two occasions. Everly told him that she saw Anderson sign seven blank checks and give them to appellant. Prock asked Everly if she heard any conversation between appellant and Anderson. Everly told him that they were being secretive and she did not hear any conversation.
IX. Appellants Bank Records
During the period of December 19, 2005, to June 12, 2006, appellant withdrew $22,107.17 from ATMs at the Black Oak Casino and the Jackson Rancheria Casino. Appellant withdrew $9,981.50 from his account at Umpqua Bank. There was $75,215.26 in total checks and ATM and Visa card charges on appellants account during this period. Appellant deposited $37,841.99 to his account in January, $14,258.36 in February, $9,764.29 in March, $9,664.84 in April, $17,642.75 in May and $12,611.64 in June. Part of the January deposit was $29,210.86 that Stewart Title Company wired into his account in January and part of the May deposit was $8,057.95 that was wired into his account pursuant to an escrow form.
Appellant testified for the defense. He said that Anderson gave him approximately $45,000 from May 2001 to December 2005. All of this money was spent on everyday household expenditures. Appellant said that he did not take any money from Anderson without his permission. Appellant said that he asked Anderson for the money on each occasion prior to depositing the disputed 12 checks and that Anderson agreed to give it to him, "[j]ust like over the last six years before that."
DISCUSSION
After the People rested their case-in-chief, appellant moved for acquittal pursuant to section 1118. After reviewing "all of the exhibits, all of [its] notes," the court denied the motion, stating that it "believes there is sufficient evidence before the trier of fact at this time to deny the motion." Appellant challenges this ruling, arguing the People failed to proffer substantial evidence proving that he stole from Anderson. We are not convinced.
The applicable standard of review is well-established. When ruling on an acquittal motion the trial court must determine whether the record contains substantial evidence proving each element of the charged offense. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213.) "Where the [acquittal] motion is made at the close of the prosecutions case-in-chief, the sufficiency of the evidence is tested as it stood at that point." (Trevino, supra, 39 Cal.3d at p. 695.) In reviewing the denial of an acquittal motion, the appellate court considers the record as it stood at the time the motion was made in the light most favorable to the judgment below to determine whether it contains substantial evidence sufficient for a rational trier of fact to have found all of the essential elements of the crime beyond a reasonable doubt. Every reasonable inference that can be derived from the evidence is made in support of the judgment. (Ibid.) In this case, because appellant presented his acquittal motion at the close of the Peoples case-in-chief, we assess the sufficiency of the evidence as it stood at that point. (Ibid.; People v. Camp, supra, 104 Cal.App.3d 244, 247.)
Appellant was convicted of caretaker theft as defined in section 368, subdivision (e), which is part of a statutory scheme enacted by the Legislature to punish those suspected of abusing or neglecting elders or dependent adults. This statutory scheme is modeled after child abuse statutes and is intended to afford the elderly a high level of protection. It recognizes that elderly peoples failing health can render them particularly vulnerable to the type of crimes defined in section 368. (§ 368, subd. (a); People v. Heizman (1994) 9 Cal.4th 189, 202-205.)
To establish a felony violation of section 368, subdivision (e), the People must prove all of the following elements: (1) appellant committed theft, embezzlement, forgery, fraud or identity theft from Anderson; (2) Anderson is an elder or dependent adult; (3) the property taken was worth more than $ 400; and (4) appellant was Andersons caretaker. The term property includes money. (Judicial Council of Cal. Crim. Jury Instns. (2008), CALCRIM No. 1807.)
To establish the underlying crime of theft by larceny, the People must prove all of the following elements: (1) appellant took possession of property owned by Anderson; (2) when appellant took the property, he did not have Andersons consent to do so; (3) when appellant took the property, he intended to deprive Anderson of it permanently; and (4) appellant moved the property and kept it for any period of time. (CALCRIM No. 1800; People v. Catley (2007) 148 Cal.App.4th 500, 505.)
To establish the underlying crime of theft by embezzlement, the People must prove all of the following elements: (1) a relation of trust and confidence existed between appellant and Anderson; (2) pursuant to that relationship, appellant accepted money that Anderson entrusted to him; and (3) with specific intent to deprive Anderson of his money, appellant appropriated or converted it to his own use. (People v. Wooten (1996) 44 Cal.App.4th 1834, 1846.)
The information alleged in count I that appellant committed "theft and embezzlement" from an elder. Because the matter was tried by the court, no jury instructions were given. The prosecutor did not specify the theory of the underlying crime in his closing arguments and the court did not specify whether appellant committed theft by larceny or theft by embezzlement in its verdict. We have set forth the elements of both theories alleged in the information. As will be explained, there is sufficient evidence proving theft by larceny and theft by embezzlement.
Appellant argues that the judgment must be reversed because Anderson gave him the 12 checks in a consensual transfer of approximately $12,000 from Andersons account to appellants account. Appellant argues that the disputed 12 checks are "completely consistent with Mr. Andersons prior generosity and with his prior practice of signing checks for appellant to complete." We are not persuaded. To support this argument, appellant relies on Andersons testimony during cross-examination that he does not know of any time when appellant took his money without his permission, that he does not remember appellant taking any checks from him without his permission, and that he is "not part of the people that are charging [appellant] with whatever." However, this testimony must be considered in conjunction with Andersons testimony that he does not have any recollection of the circumstances surrounding the disputed 12 checks and that he did not agree to give appellant or Dawn the monies represented in these 12 checks (see fn. 3). Although Anderson was extraordinarily generous to members of the Horvath family prior to his hospitalization, such prior generosity cannot be used to impute consent to a subsequent transfer of funds from Andersons account into appellants account. That Anderson might have agreed to give appellant $ 12,000 if appellant had asked him for it is not relevant.
Appellant does not challenge the sufficiency of the evidence proving that Anderson was an elder or dependent adult, that appellant was his caretaker, or that there existed a relationship of trust and confidence between appellant and Anderson. We find that the People proffered substantial evidence of these elements during their case-in-chief.
Children often are loyal to and express fond feelings toward an abusive parent. Sometimes a child even will attempt to justify the parents criminal conduct toward them. Yet, a childs loyalty does not excuse an abusive parent from criminal liability. Similarly, Andersons expression of fondness and loyalty toward appellant does not shield appellant from the criminal consequences of taking $12,000 from Anderson without Andersons prior approval.
Appellant also argues that Anderson delegated to him the task of qualifying him for Medi-Cal and that "spending down" Andersons bank account was part of this process. This argument is equally unconvincing. Anderson testified that appellant told him that he was filling out the forms for Medi-Cal. However, appellant did not go into detail with him. Anderson did not testify that he authorized appellant to "spend down" his bank account as part of the Medi-Cal application or qualification process. There was no evidence presented during the Peoples case-in-chief, other than appellants self-serving statements to Prock, that Anderson consented to appellants act of "spending down" the money in Andersons checking account. Anderson did not testify that he wanted to give the money in his checking account to appellant and Dawn instead of using it to pay for his care at Mark Twain. Anderson did not testify that he wanted appellant to "spend down" the funds in his account and did not make any comments reflecting such a desire to Spenny or a Mark Twain employee. On the contrary, Anderson recalled telling Arvin that he thought appellant was paying his bills for him with the disputed checks. Everly heard appellant tell Anderson that the checks he was signing were to pay his bills. Even if "spending down" is a common practice (as appellant asserts), doing so without Andersons consent is not legal.
Having examined the entirety of the evidence the People presented in their case-in-chief, we conclude that there is substantial proof of all the elements necessary to establish that appellant stole from Anderson under the theories of theft by larceny and theft by embezzlement. Appellant possessed power of attorney for Andersons finances. Anderson signed and gave appellant a few blank checks before he was hospitalized. Everly saw Anderson sign six blank checks at appellants urging. Everly heard appellant tell Anderson that the checks were going to be used to pay Andersons bills. Instead, appellant deposited all the checks into his personal bank account. Anderson testified that he did not agree to give appellant or Dawn the sums reflected in the disputed 12 checks. Anderson recalled telling Arvin that he thought appellant was paying his bills for him with the money from the checks. Anderson told others that he did not remember signing any checks while he was hospitalized. There is no evidence that appellant used any of the money he obtained from the disputed 12 checks to pay Andersons bills or expenses. The two checks that appellant eventually gave to Mark Twain were drawn on Andersons account, not appellants account. Therefore, the money appellant received from the disputed 12 checks was not used for Andersons share of the cost at Mark Twain. At the same time appellant was draining Andersons bank account, he was losing large sums of money at two casinos. This provides a strong motive for appellants theft of Andersons funds.
People v. Catley, supra, 148 Cal.App.4th 500 is instructive. There, the appellate court rejected a challenge to the sufficiency of the evidence supporting a conviction for elder theft. Defendant argued that the victim, Edward Walsh, gifted to her the $17,000 of his funds that she used to buy a new car. The appellate court rejected this argument, concluding that Walsh was not cognitively capable of consent and that his testimony supported a finding that he did not consent to the transfer of funds. The court explained that Walsh "testified he could not remember signing the check, or going to the bank to make the transfer of funds. At times during his testimony, Walsh could not recognize his own signature." (Id. at p. 505.)
Likewise here, even if we were to assume that Anderson was cognitively capable of consenting to the transfer of $12,000 to appellant and Dawn during the relevant period of time, substantial evidence supports the conclusion that he did not do so. Considered in its entirety, the evidence presented by the People is sufficient to establish the elements of theft from an elder under both the theories of theft by larceny and theft by embezzlement. Therefore, the acquittal motion was properly denied.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Wiseman, Acting P.J.
Kane, J.