Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS090659.
Premo, J.
The trial court found defendant Brian Henry Jones guilty of seven counts of embezzlement by an employee. (Pen. Code, § 508.) On appeal, defendant contends that the evidence is insufficient to (1) convict under section 508, (2) support the intent-to-deprive element of the offenses, and (3) prove count 6 given that the victim did not testify. We disagree and affirm the judgment.
Further unspecified statutory references are to the Penal Code.
BACKGROUND
Defendant owned and operated Trigger Hill, a guns and ammunition store in Salinas. Trigger Hill sold guns via retail and consignment. In the consignment process, the store offered to sell a customer’s gun for 25 percent of the sales price. When a consigned gun sold, defendant’s employee would deposit the proceeds in the cash register with the daily receipts. After a 10-day waiting period, the buyer had 30 days to pick up the gun. Once the buyer picked up the gun, defendant’s employee would fill out a card showing the sale date, sale price, pick-up date, and net price due to the seller. He or she would then give the card to defendant. About two weeks after the pick-up date, defendant would transmit a check to the seller for the amount due.
In 2005, defendant accepted a large consignment, sold the guns, paid his creditors, and failed to pay the consignor about $23,000. In 2007, defendant knew he had financial problems but continued to take guns on consignment. He then began to neglect the business, and consignors began to complain about not being paid.
Defendant summarizes the evidence at trial as follows: “As to each count, the evidence established that each person named in the complaint consigned one or more guns to Trigger Hill and that Trigger Hill did not pay those people as agreed after their consignments sold.”
“A defendant may be convicted of grand theft upon proof of facts establishing embezzlement, larceny or obtaining money by false pretenses.” (People v. Frazier (1948) 88 Cal.App.2d 99, 102.) Embezzlement “is the fraudulent appropriation of property by a person to whom it has been intrusted.” (§ 503.)
In this case, the information charged defendant with a particular variety of embezzlement described by section 508 as follows: “Every clerk, agent, or servant of any person who fraudulently appropriates to his own use, or secretes with a fraudulent intent to appropriate to his own use, any property of another which has come into his control or care by virtue of his employment as such clerk, agent, or servant, is guilty of embezzlement.”
Defendant focuses upon the words “by virtue of his employment.” From there he argues that “the statue applies to people who are entrusted with property in an employment context.” He then contends that the People failed to establish that he was an employee of his consignors. He states that “agency and employment do not describe the same relationship. A servant or employee works for the employer, while an agent acts for and in the place of the principal for the purpose of bringing the principal into legal relations with third persons. [Citations.] Representation, therefore, seems to be the chief characteristic of agency.” From there, he reasons that “the evidence established a pure contractual relationship, under which each consignor had authority to set a minimum sale price (i.e., dictate the outcome of the agreement), but had no authority to control the manner of performance. In every respect, [defendant] and his consignment business operated independent [sic] of the authority of consignors. Consignors had no control over [defendant] or Trigger Hill’s staff, management activities, sales staff, advertising, license, infrastructure or sales procedure. To the contrary, the evidence showed that in entering into the agreement with Trigger Hill, consignors acquiesced to Trigger Hill’s consignment procedure and policy.”
Defendant’s “fundamental argument... [is] that the terms employment and agency describe different legal relationships and that employment requires a specific showing of authority and control over the employee, which did not exist in this case.”
Defendant concludes that the People charged him with violating the wrong statute. He suggests that the People should have charged him as a “person to whom [property] has been intrusted” (§ 503), fiduciary (§ 506), or bailee (§ 507) rather than as an employee.
Defendant’s analysis is erroneous.
“ ‘ “A fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.... In construing a statute, our first task is to look to the language of the statute itself.... When the language is clear and there is no uncertainty as to the legislative intent, we look no further and simply enforce the statute according to its terms....”... [¶] In examining the language of the statute, we must consider “the context of the statute... and the statutory scheme of which it is a part. ‘We are required to give effect to statutes “according to the usual, ordinary import of the language employed in framing them.”...’... ‘ “If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.”... “When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.”... Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole.’ ” ’ ” (Wright v. Issak (2007) 149 Cal.App.4th 1116, 1120.)
Defendant interprets section 508 as applying to employees but not agents. (See Porter v. Hermann (1857) 8 Cal. 619, 624 [agent is a general term that includes consignees].) But, in general, agents are employees. (See People v. Treadwell (1886) 69 Cal. 226, 236 [“A servant is a worker for another under an express or implied employment; so also is an agent, only he works, not only for, but in the place of, his principal.”].) In any event, defendant’s interpretation of section 508 ignores the language of the statute. Section 508 specifically applies to “clerk[s], agent[s], or servant[s]” who “appropriate” what “has come into his control or care by virtue of his employment as such clerk, agent, or servant.” Stated another way, the language and context of section 508 make clear that the statute applies to those who are employed as agents rather than, as defendant would have it, agents who are employees in an employment context.
INTENT TO DEPRIVE
In determining the sufficiency of the evidence, we “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “Evidence, to be ‘substantial’ must be ‘of ponderable legal significance... reasonable in nature, credible, and of solid value.’ ” (Ibid.)
“It is firmly established that ‘ “[f]raudulent intent is an essential element of the offense of embezzlement.” ’ [Citations.] More precisely, this requires a specific intent to steal. [Citations.] In other words, ‘[t]o constitute embezzlement, the property must be appropriated or converted with the intent... to deprive.’ [Citations.] Consequently, mere conversion is not sufficient to establish embezzlement; rather the conversion must have been with the intent to defraud.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 361.)
Defendant contends that the evidence is insufficient to prove that he intended to deprive the consignors of their property at the time of the conversion. He points to evidence supporting his position, such as his testimony to the effect that he “unintentionally spent consignment money.” And he ignores the evidence supporting the judgment, such as his admission to his employee during a conversation regarding his consignors’ complaints about not being paid that he needed to be “robbing Peter to pay Paul.”
Defendant argues that the employee clarified on cross-examination that the context of the conversation was about defendant not being able to buy merchandise rather than not being able to pay consignors. Not so. The colloquy is as follows:
Defendant’s admission is sufficient evidence of his intent to defraud at the time of the conversion. Defendant was free to argue to the trial court, as he does here, that the phrase was merely a “colloquialism” or taken out of context (ante, fn. 2).
We add that evidence of defendant’s similar 2005 embezzlement of $23,000 supports the finding of intent in this case. Evidence Code section 1101, subdivision (b) permits the admission of evidence of other misconduct, not for the purpose of proving the defendant’s bad character but “when relevant to prove some fact (such as motive, opportunity, [or] intent...)....”
Moreover, the arguments that defendant was distracted in his business and never “learned that money belonging to the consignors... was on deposit” or did not “personally convert[] [the] money” are of no moment. “When [defendant] received payment for the [guns] the funds were lawfully in his possession but belonged to [his consignors].” (People v. Frazier, supra, 88 Cal.App.2d at p. 103.) Thus, defendant was obligated to give the funds to his consignors when he received them or at a later contractual transmission time. When he did not, he necessarily intended to deprive his consignors of their funds when the funds were due to the consignors. The trial court recognized this reality in announcing its decision: “75 percent of that was... the consignment money; it was not his money. He took the money, used it for his own purposes without the knowledge or consent of the people whose money it was. That, essentially, amounts to a theft. And I think what took place here fits right in the definition of embezzlement.”
Defendant’s point that the trial court expressed doubt about specific intent, “questioned whether gross negligence could justify a finding of specific intent, ” and asked for briefing on the question is of no moment. The trial court convicted defendant and the evidence supports the finding of specific intent.
“Evidence Code section 664 provides that ‘[i]t is presumed that official duty has been regularly performed’ and scores of appellate decisions, relying on this provision, have held that ‘in the absence of any contrary evidence, we are entitled to presume that the trial court... properly followed established law.’ [Citation.] This rule has been applied in both civil [citations] and criminal [citations] proceedings and a number of criminal cases unequivocally hold that the rule encompasses a presumption that the trial court applied the proper burden of proof in matters tried to the court. [Citations.] In the typical criminal case in which a jury trial is waived, the judge, of course, does not normally publicly announce that he is applying [the proper burden of proof], but simply finds the defendant guilty or not guilty of the charged offense.” (Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914, fn. omitted.) Defendant points to nothing in the record to affirmatively show that the trial court convicted him by finding gross negligence rather than specific intent. And, as we have mentioned, the trial court announced a theory of specific intent applicable to consignment cases (“He took the money, used it for his own purposes without the knowledge or consent of the people whose money it was”).
COUNT 6
Defendant contends that the evidence is insufficient to convict him of embezzlement from Richard Almand. He points out that “Richard Almand did not testify at trial, nor was any testimony specific to Almand presented.” There is no merit to this contention.
Defendant stipulated to the admission in evidence of People’s exhibit 1A, which was a list of names. And he concedes that People’s exhibit 1A is a “spreadsheet indicating that Almand consigned two guns to Trigger Hill, which sold in September and October 2007.” During cross-examination, the prosecutor showed defendant exhibit 1A and questioned him about it. The relevant colloquy is as follows.
“Q. Okay. But you said you didn’t intend to steal money
“A. Correct.
“Q. --from these people, but you acknowledge the fact that you--the gun was given to you by these people?
“A. I do.
“Q. And it was sold, and that the money did not go to these people, as designed by a consignment agreement?
“A. That is correct.”
All the elements of embezzlement are present from this evidence. Almand employed defendant as his agent to sell two guns on consignment; defendant sold the guns; defendant did not transmit the money due to Almand. And, since the money due to Almand from the sale belonged to Almand, defendant’s failure to pay Almand when he received the money or when he was otherwise obligated to pay Almand supports a finding of defendant’s intent to deprive.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.
“Q. Okay. And you had a conversation with [defendant] about merchandise and having to purchase merchandise for inventory and not being able to pay for it; is that correct?
“A. That is correct.
“Q. And when [defendant] talked to you about robbing Peter to pay Paul, that was part of the conversation?
“A. That was part of that conversation.”
Thus, the colloquy is ambiguous, at best. Either (1) defendant told his employee that he could not pay his consignors because he was robbing Peter to pay Paul and part of the conversation was about not being able to pay for inventory, or (2) as defendant would have it, the employee mistakenly testified on direct examination that defendant could not pay his consignors because he was robbing Peter to pay Paul and corrected the mistake on cross-examination. The trial court implicitly resolved the ambiguity against defendant’s interpretation of the employee’s testimony.