Opinion
E052518
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. DARRYL SHAWN CHASTAIN, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Teresa Torreblanca, and Meredith White, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. SWF029705)
OPINION
APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge. (Retired judge of the former Mun. Ct. for the Orange Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Teresa Torreblanca, and Meredith White, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
All statutory references are to the Penal Code unless stated otherwise.
Defendant Darryl Shawn Chastain, an unlicensed plumber, underbid a plumbing job and converted $1,100 due to his employer, Hughes Plumbing and Air Conditioning Incorporated (Hughes Plumbing). A jury convicted defendant of one criminal count of embezzlement. (§ 503.) The court found true the allegation that defendant had sustained a prior prison term. (§ 667.5, subd. (b).) The court sentenced defendant to a prison term of four years, the upper term of three years plus an additional one year for the enhancement.
On appeal, defendant argues he received ineffective assistance of counsel (IAC) and the court committed instructional error, causing cumulative prejudicial error. We reject defendant's fundamental contention that he did not embezzle "property." We affirm the judgment.
II
FACTUAL BACKGROUND
A. Charged Offense
Stephanie W. Atkinson (Atkinson) testified that she owned several rental properties in Hemet. Atkinson had hired Hughes Plumbing several times in the past. She hired Hughes Plumbing once again in May 2009 for the work in question. Atkinson initially obtained a higher quote from Warren Hughes (Hughes), the owner, for about $1,500. Hughes was out of town but he told Atkinson that defendant, a Hughes employee, was in charge while he was away. Defendant came to Atkinson's property, driving a Hughes plumbing truck, with two other men. She left while they were working and she eventually paid defendant $1,100 in cash. She assumed the price had been lowered from $1,500 to $1,100 by Hughes Plumbing. She did not hire defendant instead of Hughes Plumbing.
Hughes testified that he had employed defendant in October 2008 for about a year. Hughes also rented a residence to defendant.
Hughes went to South Dakota from May 6 until May 17, 2009, leaving defendant in charge of the business. Hughes Plumbing had worked for Atkinson in the past. Before leaving for vacation, Hughes received a phone call from Atkinson about repairing the sewer line at 316 Acacia Avenue in Hemet. Hughes and defendant inspected the property together before Atkinson authorized the work. When Hughes returned from vacation, the invoice for the Acacia job was missing. Defendant said he had finished the work but he did not know where the invoice was and he would search for it. After three or four days, Hughes warned defendant he planned to call the police. Atkinson told Hughes that she had paid defendant in cash at his request. Hughes confronted defendant who said he would repay Hughes, after which defendant disappeared without ever repaying Hughes.
B. Uncharged Offense
Randall Ben Nelson (Nelson), the owner of R.B. Nelson Plumbing in Riverside testified that defendant had worked for him for a week in 2006. Defendant used the company credit card without authorization. Defendant also stole checks and cash from two jobs and stole the company van and equipment.
C. Defendant's Testimony
Defendant testified he was employed part-time by Hughes Plumbing but he was also self-employed and starting his own business. He worked intermittently for Hughes Plumbing, the amount of time varying on a weekly basis. Defendant had previously worked for Atkinson as a Hughes employee. Defendant claimed Hughes allowed him to use a van without company markings but defendant purchased materials for his own jobs. In August 2008, Hughes assisted defendant in a job for which defendant was not licensed. Hughes had also referred a job to defendant when he had a conflict.
According to defendant, in May 2009, Hughes gave Atkinson an estimate of $1,500 to repair a sewer line under a concrete driveway but she said that amount was too high. She proposed hiring someone else to excavate the driveway and having Hughes Plumbing finish the work. Defendant offered to do the entire job for an estimate of $1,100. After Atkinson authorized the work, defendant purchased the necessary materials. Defendant used an invoice with his address on it, not a Hughes Plumbing invoice. Atkinson first paid with a check and then asked to pay in cash.
Atkinson separately authorized Hughes Plumbing to do electronic sewer line location for $150, which defendant performed as an agent of Hughes Plumbing.
The episode involving R.B. Nelson Plumbing and the stolen van, cash, and checks was a misunderstanding. But defendant admitted pleading guilty to taking the van. Defendant had various other previous criminal convictions.
Defendant did not possess a plumbing license and always worked as a subcontractor under a licensed plumber. Defendant admitted he was restricted to performing jobs under $500.
III
EMBEZZLEMENT OF PROPERTY
"Embezzlement is the fraudulent appropriation of property by a person to whom it has been [e]ntrusted." (§ 503.) The elements of embezzlement are: "1. An owner entrusted (his/her) property to the defendant; [¶] 2. The owner did so because (he/she) trusted the defendant; [¶] 3. The defendant fraudulently (converted/used) that property for (his/her) own benefit; [¶] AND [¶] 4. When the defendant (converted/used) the property, (he/she) intended to deprive the owner of (it/its use)." (CALCRIM No. 1806.) (People v. Fenderson (2010) 188 Cal.App.4th 625, 636-637.) In this case, the court instructed the jury based on section 503 and CALCRIM No. 1806 but the court did not expressly define "property" to the jury.
A. Ineffective Assistance of Counsel
In closing argument, the prosecutor argued that "property" in this context meant both the job performed for Atkinson and the $1,100 owed to Hughes Plumbing for the work. Defense counsel argued the money was not Hughes's property because defendant had "merely underbid" Hughes Plumbing. On appeal, defendant argues it was IAC for defense counsel to fail to object to the prosecutor's argument about what constitutes property.
Section 7 defines real and personal property: "The words 'real property' are coextensive with lands, tenements, and hereditaments. [¶] . . . The words 'personal property' include money, goods, chattels, things in action, and evidences of debt." Civil Code section 654 also defines property: "The ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others. In this Code, the thing of which there may be ownership is called property."
Case law has long held that "property" has a broadly generic meaning. The word "property" signifies any valuable right or interest protected by law. (Fields v. Michael (1949) 91 Cal.App.2d 443, 449.) "'Property' is a word of very broad meaning and when used without qualification, may reasonably be construed to include obligations, rights and other intangibles, as well as physical things." (U.S. v. Graham (S.D. Cal. 1951) 96 F.Supp. 318, 320.) The word "property" is "a generic one. When unqualified it is sufficiently comprehensive to include every species of estate, both real and personal, whether choate or inchoate. [Citations.]" (Bady v. Detwiler (1954) 127 Cal.App.2d 321, 325.)
In an historic case involving a California law prohibiting the employment of Chinese workers, an early federal court wrote: "'. . . Property is everything which has an exchangeable value, and the right of property includes the power to dispose of it according to the will of the owner. Labor is property, and, as such, merits protection. The right to make it available is next in importance to the rights of life and liberty. It lies, to a large extent, at the foundation of most other forms of property. [Citation.]" (In re Parrott (1880) 1 F. 481, 506.)
A leading decision of the California Supreme Court "approved the following definition: '"The term 'property' is sufficiently comprehensive to include every species of estate, real and personal, and everything which one person can own and transfer to another. It extends to every species of right and interest capable of being enjoyed as such upon which it is practicable to place a money value."' (Yuba River Power Co. v. Nevada Irr. Dist. (1929) 207 Cal. 521, 523.)" (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 165.)
Most recently, California appellate courts have held "property is something that one has the exclusive right to possess and use . . . . '"Courts have said that the word 'property' is 'all-embracing so as to include every intangible benefit and prerogative susceptible of possession or disposition.' [Citations.] [¶] . . . [T]he construction of the word 'property' . . . signifies 'any valuable right or interest protected by law.' [Citations.]"' (Downing v. Municipal Court (1948) 88 Cal.App.2d 345, 350.)" (People v. Kwok (1998) 63 Cal.App.4th 1236, 1250-1251; State of California v. Superior Court (2000) 78 Cal.App.4th 1019, 1027; People v. Kozlowski (2002) 96 Cal.App.4th 853, 866; In re L.T. (2002) 103 Cal.App.4th 262, 265.)
The foregoing authorities confirm that the work authorized by Atkinson and the money she paid constituted property, which was subject to the crime of embezzlement. Although intangible to some extent, the job and the payment received for it were a right or interest with economic value and protected by law. As the owner, Hughes Plumbing had the protected right to control and dispose of the job and the money paid by Atkinson.
We reject a new issue, first raised by defendant in his reply brief, that Hughes Plumbing had no legal right but "merely an 'expectancy.'" (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1152, 1153.) Although defendant argues he could lawfully underbid a job that was obtained through Hughes Plumbing, defendant's argument concedes he was appropriating the existing business of Hughes Plumbing. Furthermore, defendant admits that, as an unlicensed plumber, he was not qualified to undertake plumbing work worth more than $500. Defendant was not legally entitled to charge $1,100 for work performed as an independent contractor.
The prosecutor did not misstate the law regarding what constitutes property. No IAC occurred when defense counsel did not object to the prosecutor's argument. (People v. Padilla (1995) 11 Cal.4th 891, 935-936.)
B. Instructional Error
In a related argument, defendant argues the trial court erred by failing to instruct the jury sua sponte on the meaning of "property." (People v. Gonzales (2010) 183 Cal.App.4th 24, 36.) Defendant has forfeited any claim of error by not requesting clarifying language at trial. (People v. Young (2005) 34 Cal.4th 1149, 1202-1203.)
Notwithstanding defendant's forfeiture, his claim lacks any merit because the jury could not have misunderstood the meaning of property and the jury could not have reached a different verdict. (Cupp v. Naughten (1973) 414 U.S. 141, 146-147; People v. Young, supra, 34 Cal.4th at pp. 1202-1203.) If the jury had been given a definition of property, as discussed above, there is no question that the jury still would have determined that defendant embezzled property from Hughes Plumbing.
On appeal, defendant argues Hughes could not claim to have the exclusive control over the Atkinson work or its value because Atkinson might have hired someone else, such as defendant, to do the job. That was, in fact the argument advanced repeatedly by defense counsel at trial. But substantial evidence amply supported the prosecution's theory of the case that Atkinson hired Hughes Plumbing and Hughes Plumbing employed defendant to do the work. Atkinson herself testified that she hired Hughes Plumbing, not defendant, and that she understood the reduction in price was a reduction from the estimate, rather than a sum paid to defendant. As such, the plumbing job, and the money it generated, was the property of Hughes Plumbing, not of defendant, who embezzled the property from Hughes Plumbing. No additional jury instruction was necessary. Nor would further instruction have benefited defendant.
IV
DISPOSITION
The prosecutor properly described the meaning of property to the jury and the jury did not need further instruction defining property. In the absence of IAC and instructional error, there was no cumulative error. (People v. Mincey (1992) 2 Cal.4th 408, 454.)
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
McKinster
Acting P.J.
Miller
J.