Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P06CRF0480
HULL, J.A jury convicted defendant Susan Grace Bettencourt of seven counts of grand theft by embezzlement. (Pen. Code, § 487, subd. (a).) The court suspended imposition of sentence and placed defendant on five years’ probation subject to various conditions, including a 365-day jail term.
On appeal, defendant contends: (1) the court erred in denying her motion to dismiss six of the seven counts as the thefts were committed pursuant to a common plan; (2) error in failing to instruct the jury with the rule of People v. Bailey (1961) 55 Cal.2d 514 (Bailey); (3) insufficient evidence to support the convictions; and (4) prosecutorial misconduct. We affirm the judgment.
FACTS AND PROCEEDINGS
Ladd Segroves owns and operates an auto repair business in Garden Valley. He maintains a business checking account, which he and his wife Nancy Thornton also use for their personal finances. The business also has a Visa debit card.
In 2004, Segroves hired defendant to be his office manager. Segroves did not like to work in the office and generally delegated financial matters to defendant. Defendant was an independent contractor who would be paid $8 an hour, 40 hours a week, for a total salary of $320 a week. Her hours would vary at times, but she was not authorized any overtime.
Defendant’s duties were to pay the bills, rent, taxes, and utilities, write tickets for automotive repair work, collect money from clients, and order parts. She was authorized to use the Visa card for business expenses, and to sign checks for business expenses and payroll, including her own paychecks.
The bank eventually objected to defendant signing her own paychecks, so Segroves stopped that practice and would sign blank paychecks for defendant, who would then fill them out. Segroves did not authorize defendant to open cell phone accounts, use the debit card for personal purchases, use the checking account to pay for personal items, or write checks to defendant’s family members.
In 2005 Segroves started to share office space with Patricia Michaud, who owned a tow truck. Michaud started to help Segroves with writing checks and making deposits when defendant was sick. She noticed discrepancies between the checks and the ledger and brought them to Segroves’s attention. They then obtained records from the bank and examined the business’ financial records.
Michaud and Segroves determined defendant made numerous unauthorized expenditures from Segroves’s business account for the benefit of herself and her family. The expenditures were summarized in a series of exhibits prepared by Michaud and admitted as People’s exhibits.
Examining paycheck stubs, canceled paychecks, and pages from the company check register, Michaud and Segroves determined defendant overpaid her wages by $12,560.66. They also found defendant made $10,564.29 in unauthorized withdrawals from the business checking account. Among these were unauthorized checks to defendant’s husband and daughter totaling $3,078.27, and for defendant’s own benefit totaling $3,894.60. With Segroves’s help, Michaud also identified $1,003.40 in unauthorized purchases with the company Visa card, and $4,789.13 of purchases at Sam’s Club. Defendant also opened unauthorized cellular phone accounts with MCI and Nextel in Segroves’s name, paying those companies $1,484.98 from the business checking account.
Nancy Thornton testified that she and her husband briefly had a membership at Sam’s Club. She examined receipts from Sam’s Club paid by the business checking account and determined she had not made any of the purchases set forth in those receipts.
El Dorado County Deputy Sheriff Terrie Cissna interviewed defendant about the allegations. Defendant initially denied knowledge of financial improprieties at Segroves’s business. Deputy Cissna observed defendant became noticeably nervous whenever she was asked about allegations or discrepancies in the firm’s finances.
Defendant eventually admitted some of the transactions were for her personal use such as purchases at Sam’s Club and Costco, Nextel, and payments to her mortgage company, claiming she reimbursed the business afterwards or drew a smaller salary to compensate. While initially denying writing checks on the business account to her family members, defendant eventually admitted to writing some to her husband, telling the deputy this was a way to pay herself when Segroves was not around to sign her paycheck. She also admitted making a mortgage payment with a check from the business account and using a business check to get a dumpster to clean her house.
Segroves was called as a defense witness and testified he never authorized a raise for defendant. He admitted signing weekly paychecks in excesses of $320 for defendant, but explained that he would sign blank checks, trusting her to fill in the correct amount.
DISCUSSION
I Thefts as a Common Plan
Defendant was convicted of seven counts of grand theft, count I for overpayment of wages totaling $12,560.66; count II for $10,564.29 in unauthorized bank withdrawals; count III for issuing $3,078.27 in unauthorized checks to non-employees; count IV for issuing $3,894.67 in unauthorized checks; count V for $1,003.40 in unauthorized Visa purchases; count VI for $4,789.13 in unauthorized Sam’s Club purchases; and Count VII for $1,484.98 in unauthorized payments to MCI and Nextel.
At sentencing, defendant moved to dismiss six of the seven grand theft counts, or alternatively, to stay punishment pursuant to Penal Code section 654, asserting all of the thefts were part of a single common plan subsumed in the first count. The court denied the motion, finding the thefts were not part of a continuous course of conduct.
As imposition of sentence was suspended, defendant properly abandons her contention that the court should have stayed punishment on six of the counts pursuant to Penal Code section 654. But she contends that dismissal was mandated under Bailey because her thefts were all part of a common plan and the trial court did not give a unanimity instruction. We disagree with her contentions.
A. Common Plan
“[I]n a series of takings from the same individual, there is a single theft if the takings are pursuant to one continuing impulse, intent, plan or scheme, but multiple counts if each taking is the result of a separate independent impulse or intent.” (People v. Packard (1982) 131 Cal.App.3d 622, 626 (Packard).) This rule is sometimes referred to as the Bailey doctrine, after People v. Bailey, supra, 55 Cal.2d 514. (See, e.g., People v. Drake (1996) 42 Cal.App.4th 592, 596.)
In Bailey, the defendant contended the trial court had erred in instructing the jury that “if several acts of taking are done pursuant to an initial design to obtain from the owner property having a value exceeding $200, and if the value of the property so taken does exceed $200, there is one crime of grand theft, but that if there is no such initial design, the taking of any property having a value not exceeding $200 is petty theft.” (Bailey, supra, 55 Cal.2d at p. 518.) The Supreme Court found the instruction proper, stating, “[w]hether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.” (Id. at p. 519.) In other words, the question of whether multiple takings are committed pursuant to one intention, general impulse, and plan is a question of fact. (Packard, supra, 131 Cal.App.3d at p. 626.)
As a question of fact, this determination is one for the jury. (People v. Slocum (1975) 52 Cal.App.3d 867, 889.) However, in the absence of any facts in the record that the defendant had separate plans, an appellate court can determine as a matter of law that the defendant should only be convicted of one count of theft. (Packard, supra, 131 Cal.App.3d at p. 626.)
Packard involved only one type of theft, where the defendant, an employee of Paramount Studios, formed a phony production company that billed his employer for the reproduction of nonexistent scripts. (Packard, supra, 131 Cal.App.3d at p. 625.) The thefts were committed for three years, and the People charged the defendant with three counts of grand theft, one count for each year. (Id. at p. 626.)
By contrast, the evidence in the instant case shows defendant took tens of thousands of dollars from her employer Segroves through a variety of distinct means--excessive paychecks, unauthorized withdrawals, checks to family members, use of the Visa card for personal expenses, checks for personal needs, purchases at Sam’s Club, and the opening of and payment on cellular phone accounts--over a period of 19 months. The first overpayment of wages took place on April 30, 2004, while the last happened on November 23, 2005. The charges reflect the numerous ways defendant exploited her position of trust to embezzle money from her employer, with each count reflecting a separate plan to steal money from Segroves. We cannot say that the record is so devoid of evidence supporting separate charges to require us to dismiss six of the seven grand theft counts.
Here, during trial, neither the prosecution nor the defendant argued defendant had committed a series of wrongful acts pursuant to a single plan or intention. Rather, her defense was that all of the expenditures either were for legitimate business purposes or authorized by Segroves. Presumably based on this defense theory, defendant did not request a Bailey instruction. Defendant’s reliance on People v. Sullivan (1978) 80 Cal.App.3d 16 (Sullivan) is thus misplaced as the defendant in that case requested a Bailey instruction. (See id. at p. 21.) Denying defendant’s motion to dismiss six of the seven counts was not error.
B. UNANIMITY INSTRUCTION
When a single count encompasses more than one act on which a jury could find guilt, the People must elect to rely on one such act or the trial court must instruct the jury to convict only on unanimous agreement that the defendant did a particular act. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) But if the acts are so closely connected that they form part of the same transaction, a unanimity instruction is not required. (People v. Jenkins (1994) 29 Cal.App.4th 287, 299.) Even if a unanimity instruction should have been given, the omission is harmless beyond a reasonable doubt if the jury could not reasonably have found that the defendant did some acts but not others charged in the same count. (People v. Deletto (1983) 147 Cal.App.3d 458, 471.)
Defendant incorrectly infers the absence of a unanimity instruction demonstrates the thefts were all part of a single plan.
Although the thefts were not all part of a single common plan, each of the seven counts of grand theft alleged a separate but continuous course of conduct during the relevant time period. Since the thefts within each count were part of the same transaction, a unanimity instruction was not required.
As defendant admits, she had the same basic defense to all of the thefts, that her employer authorized them. This was not a case of different defenses to different acts, each being used to prove the same count. (People v. Diedrich (1982) 31 Cal.3d 263, 283.) If there was error in not giving a unanimity instruction it was harmless under any standard.
II Duty to Give a Bailey Instruction
Defendant asserts the court had a sua sponte duty to give a Bailey instruction. Again, we disagree.
A trial court’s sua sponte instructional responsibilities differ between lesser included offenses and affirmative defenses. (People v. Barton (1995) 12 Cal.4th 186, 197.) Even over defense objection, the court must instruct sua sponte on all theories of a lesser included offense that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
On the other hand, the trial court has a sua sponte duty to instruct on affirmative defenses “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Breverman, supra, 19 Cal.4th at p. 157.) Trial courts are not required to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions on possible defenses. (People v. Barton, supra, 12 Cal.4th at p. 197.) Since a defendant can properly object to instructions on particular defenses, before giving instructions on a defense, the court should ascertain whether that is the defendant’s wish. (Id. at pp. 195, 197.)
Contrary to defendant’s assertion, no Bailey instruction was required here. “The evidence did not compel the conclusion that only one offense was involved in the takings alleged....” (People v. Sullivan, supra, 80 Cal.App.3d at p. 21.) Where, as here, the counts reflect “separate and distinct transactions, which occurred on different dates, and involved the taking of different sums of money” a jury can find separate thefts. (People v. Stanford (1940) 16 Cal.2d 247, 251.)
A Bailey instruction would have been inconsistent with defendant’s theory that the transactions were authorized. Because defendant did not rely on the Bailey theory and this defense would have been inconsistent with her defense at trial, the court did not have a sua sponte duty to give a Bailey instruction. Accordingly, there was no error.
III Substantial Evidence
Defendant claims her convictions are not supported by substantial evidence, relying on various alleged inconsistencies in the evidence as to each of the counts. Her point is not well taken.
In reviewing the sufficiency of the evidence to support a conviction, we determine “‘whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.’ [Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under this standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crimes. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jury’s conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518.) In making the determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code, § 312.)
Segroves testified defendant was to be paid $8 an hour for $320 a week, she was not authorized to use the company’s checking account or debit card for personal services or to draw cash from the business account, the company never had or authorized a cellular phone, and she never got a raise. Segroves also testified that he and Michaud went over the business’ bank ledger and Visa statement, determining which payments involved excessive wages, unauthorized payments, withdrawals, and uses of the debit card. Michaud testified to going over the expenditures with Segroves, and determining which ones were excessive or unauthorized. The conclusions were then summarized by Michaud in a series of exhibits she prepared identifying the unauthorized wages, personal expenditures, and uses of the debit card. The exhibits included copies of numerous canceled checks and bill statements for Sam’s club, the Visa card, and the relevant cellular phone companies.
Defendant argues her conviction for theft through overpayment of wages in count I should be overturned because Segroves did not personally testify regarding each disputed paycheck, and because of alleged discrepancies in four of the 70 overpayments identified in Michaud’s exhibit. Michaud’s and Segroves’s testimony that they went over the ledger and determined which paychecks were excessive was more than sufficient to verify the exhibit. The relative handful of alleged discrepancies goes to the credibility of Michaud’s testimony and the exhibit, which we shall not reconsider on appeal.
As to count II, unauthorized withdrawals from the checking account by defendant, defendant asserts insufficient evidence because Michaud could not testify whether the individual withdrawals were authorized, Segroves did not verify the exhibit summarizing the withdrawals, and the only evidence regarding where the money was transferred, defendant’s bank account, came from a hearsay statement.
To the extent that the lack of verification of the withdrawals rendered the documentary evidence, People’s exhibit 2, inadmissible, this is an evidentiary question which defendant forfeited by failing to object. (Evid. Code, § 353.) Segroves testified that defendant was not allowed to withdraw cash from the bank. Although he did not personally verify the exhibit, he testified to going over the transactions with Michaud and determining which were unauthorized. This was sufficient evidence for the jury to conclude defendant embezzled from Segroves through a series of unauthorized withdrawals from Segroves’s business.
For the same reason, we reject defendant’s contention that evidence of the remaining counts was insufficient because Segroves did not personally verify that each transaction was in fact unauthorized. As we have already discussed, Segroves went over the bank transactions with Michaud and determined which were unauthorized. The evidence, as summarized above was more than sufficient to support the convictions in counts III through VII.
IV Prosecutorial Misconduct
Defendant’s final contention is the prosecutor committed misconduct by giving the jury an improper definition of reasonable doubt, told the jury it was defense counsel’s job to “get his client off,” and vouched for a witness’s credibility. She asserts these instances of misconduct warrant reversal, both individually and collectively.
A prosecutor’s behavior violates the federal Constitution when it is so egregious it renders the trial unfair and constitutes a denial of due process. (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Under California law, conduct by a prosecutor who does not render a trial unfair is nevertheless misconduct if it involves the use of deceptive or reprehensible methods in an attempt to persuade the court or jury. (People v. Espinoza (1992) 3 Cal.4th 806, 820.) To preserve a claim of prosecutorial misconduct for appellate review, a defendant must timely object and request an admonition, unless an admonition would be futile. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
A. Reasonable Doubt
Defendant asserts the prosecutor twice gave the jury an improper definition of reasonable doubt during closing argument. First, the prosecutor argued, “So if after comparison and consideration of all of the evidence in this case and any reasonable inferences you can draw from that evidence the best you can say is that it’s possible the defendant is not guilty of these charges, then you don’t have a reasonable doubt and it would be your duty and your responsibility to return a verdict of guilty.”
Defendant contends the argument improperly equates possible doubt with the lack of reasonable doubt. The prosecutor’s argument parallels Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 220, which, as given to the jury, states “[t]he evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.” CALCRIM No. 220 provides a correct definition of reasonable doubt (People v. Stone (2008) 160 Cal.App.4th 323, 331-332; People v. Campos (2007) 156 Cal.App.4th 1228, 1238-1239; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268) and we conclude the argument did not misstate the definition of reasonable doubt.
The second alleged instance of improper argument on reasonable doubt took place on rebuttal, where the prosecutor told the jury the reasonable doubt standard is “a high standard. It’s the highest standard that the law has, but it’s not something that you’re completely unfamiliar with. And I’m not trying to trivialize the burden in any fashion. But you are an adult and you are charged with getting a small child across a very busy street; you’re not going to go out in the street with a small child until you are sure that it’s safe. You want to be as sure as you possibly can because you don’t want anything bad or untoward to happen to the child. I mean, so this is the sort of standard that we apply sometimes in our everyday life. It’s a very high standard, the highest standard that you’re going to run across in a court of law.”
Defendant correctly asserts this argument improperly equated reasonable doubt with decisions made in everyday life, in which a person typically applies a lower standard. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 36 [disapproving explanations of reasonable doubt using examples from everyday life, which reasonable person adjudges in practice by preponderance-of-the-evidence standard].) However, defendant did not object to the instruction and she cannot show that a timely admonition would not have cured the error, so her claim is forfeited.
Defendant contends her claim is nevertheless cognizable on appeal, citing as support People v. Johnson (2004) 119 Cal.App.4th 976, at pages 984-985, where the Court of Appeal concluded it had discretion to consider the defendant’s claim that the court erroneously instructed the jury on reasonable doubt. However, it is one thing to say the court may review an erroneous instruction despite the lack of an objection and quite another to say the court may review a prosecutor’s erroneous elaboration of an instruction. Penal Code section 1259 specifically authorizes a reviewing court to review “any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” (Pen. Code, § 1259.)
But even if this court were authorized to consider defendant’s claim, “‘“[w]hether or not it should do so is entrusted to its discretion.”’” (People v. Johnson, supra, 119 Cal.App.4th at p. 984.) In this instance, the jury was instructed: “You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorney’s comments on the law conflict with my instructions, you must follow my instructions.” “The court’s instructions are determinative in their statement of law, and we presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 21.) Given how easy it would have been for the trial court to clarify any confusion engendered by the prosecutor’s comments had an objection been made, we decline to consider defendant’s claim of misconduct.
B. Other Claims
Defendant asserts two other instances of alleged misconduct; first, that the prosecutor attacked defense counsel’s integrity by arguing it was defense counsel’s “job to get his client off.” He also claims the prosecutor improperly vouched for a witness in closing argument by saying Segroves “is not the person who brings these charges. That’s the district attorney. And charges are brought by someone who’s neutral, who doesn’t have an interest in the outcome.”
The comment on defense counsel’s duty is an attempt to place opposing counsel’s comments in the context of his role as an advocate for his client. It is not misconduct. (See People v. Gionis, supra, 9 Cal.4th at p. 1217 [arguing defense counsel’s “job” is to get the defendant off is not misconduct].)
The other comment only addressed attacks on Segroves’s credibility by defense counsel during closing argument. Defendant also takes this argument out of context. While the prosecutor argued it was the People rather than Segroves who charged defendant, this comment was followed by the statement: “Now I want to be very clear about this. The fact that a person is arrested, that a person is charged, the fact that they are here on trial is no evidence of their guilt.”
Defendant has not shown that the minimal prejudice, if any, in either statement would not have been cured with an objection and admonition, forfeiting the claims. The prosecutor’s comments, viewed individually or collectively, do not warrant reversal.
Disposition
The judgment is affirmed.
We concur: RAYE, Acting P. J., BUTZ, J.