Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF099463A
ROBIE, J.
Defendant Marietta Dabanian was found guilty of three counts of theft and one count of attempted theft in connection with the taking of more than $100,000 from an elderly woman. On appeal, defendant claims numerous errors. As we will explain, we agree with only one of her assertions -- that there was insufficient evidence to convict her of theft relating to an annuity she purchased for the victim under a power of attorney (the Employees Life annuity). Accordingly, we will reverse the judgment as to that conviction only, affirm the judgment as to the remaining convictions, and remand the case for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Born in 1914, Jean Ralston was a retired school principal who lived by herself in an apartment in Stockton. Defendant apparently got to know her sometime in the late 1990’s when Ralston hired defendant to help her with her cleaning. (Defendant had a cleaning business at the time.) By the end of 2003, defendant was also providing care for Ralston. (Defendant operated a care-giving business called Caring in a Time of Need.)
Beginning in the summer of 2003, various people noticed that Ralston’s mental acuity was declining. In January 2004, defendant made an appointment to bring Ralston to a meeting with George Manassero, the attorney who had prepared Ralston’s will and living trust in 2000. At the meeting, defendant discussed creating a power of attorney for Ralston, so that she could be in charge of Ralston’s finances. When Manassero met with Ralston outside of defendant’s presence, he felt that Ralston “just could not articulate or focus on what she really wanted to do.” Accordingly, he did not prepare a power of attorney for her.
A week after meeting with Manassero, defendant took Ralston to meet with a certified estate planner, Stephen Walker. Walker’s understanding was that Ralston wanted to make some changes to her living trust. Walker referred her to Harold Duncan, an attorney with whom Walker had a fee-splitting arrangement. Duncan prepared a new living trust and a new will for Ralston. Under those documents, defendant was to inherit all of Ralston’s property. Duncan also prepared a power of attorney that made defendant her attorney-in-fact and immediately gave defendant control over Ralston’s finances. This document took effect on February 6, 2004.
Later that month, Walker sold Ralston an annuity with Employees Life for an initial premium of $141,106.16. Defendant signed the annuity application pursuant to the power of attorney. Defendant was the primary beneficiary of the annuity. Approximately five days after the purchase of the annuity, another premium payment was made bringing the total premium to $250,000. At the time, Jean Ralston already had an annuity with New York Life that she had purchased a year earlier for a premium of $100,008.44.
In April 2004, Ralston’s credit card was used to purchase plane tickets for defendant and another person to fly round-trip between Sacramento and Los Angeles.
In June 2004, Ralston spent five days in the hospital after she was found to be suffering from congestive heart failure due to coronary artery disease. In July 2004, she was moved to Bayside Landing, an assisted living facility for seniors. The same month, defendant used $3,800 of Ralston’s money to pay for the installation of a flagstone walkway in her backyard, as well as some drainage work in the front of her house. She also used $2,527.50 of Ralston’s money to pay for the refinishing of the hardwood floors in her house.
Sometime in August 2004, defendant met with James Rohleder, the owner of a construction company that specializes in remodels and additions, about remodeling her garage into an office storage area. About halfway through the project, which started November 10 and ended around December 23, 2004, defendant told him that her grandmother was in a care home in Greece and the project needed to get done as soon as possible because she was having problems with her grandmother. This was the first time Rohleder learned the converted garage was not going to be used as an office. Defendant asked him to install a kitchenette (a small bathroom was already part of the plan), but he told her he could not because the permit would not allow it. Defendant ultimately paid Rohleder $42,175 from Ralston’s bank accounts for the remodeling project.
In December 2004, Ralston was staying in a rehabilitation center known as Meadowwood. At that time, Anthony Monaco, Sr., met Ralston and defendant because Ralston shared a room with Monaco’s mother. Defendant told Monaco that Ralston was her mother and said that she was “building a house in the back or alongside of the house for [Ralston] where [defendant] would take her in and take care of her.” Defendant also told Monaco that Ralston was going to be paying her rent, which struck him as odd.
Ralston left Meadowwood just before Christmas 2004. At that time, defendant moved her into defendant’s converted garage.
On January 31, 2005, Employees Life received a request to withdraw 10 percent of the Employees Life annuity plus accumulated interest, which amounted to $35,427.40 in total. A check for that amount made out to Ralston was later deposited into Ralston’s savings account.
After defendant moved Ralston onto her property, she spent additional sums of Ralston’s money on improvements to her home. In February 2005, she paid $6,385 for a “water feature” for her yard, which consisted of a “[f]ive by seven pond with three feet of stream,” “two waterfalls” and “plants.” In March 2005, she spent $1,942.73 on a patio table and four chairs. Around that same time, she paid a landscaping company $3,777.40 to help design a backyard, pour some concrete, and do some demolition. (The entire job was never completed.) She also paid $6,428 toward the purchase and installation of some custom gates. In April 2005, defendant paid $4,000 for the construction of masonry block walls on her property.
In addition to the foregoing expenditures, between December 2004 and April 2005 $4,604.50 in ATM cash withdrawals were taken from Ralston’s checking account and $9,500 in ATM cash withdrawals were taken from her savings account. It did not appear that Ralston had ever taken ATM cash withdrawals from her accounts before. During this same time period, a check card on Ralston’s account was used for $6,556.42 in various transactions, including the purchase of an airline ticket for the man who became defendant’s husband to travel from North Carolina to California and back. Before December 6, 2004, there had been no use of Ralston’s check card.
Defendant and her husband, Dan Ward, met in March 2005, albeit not in person. On April 8, 2005, he flew to California on the ticket purchased with Ralston’s money to meet defendant for the first time face-to-face. Although he supposedly planned only to visit for two days -- his return ticket was for April 10 -- instead he and defendant married on April 16, and he never returned to North Carolina.
Between December 2004 and February 2005, defendant wrote checks to herself from Ralston’s account in the sum of $4,800. Between June 2004 and March 2005, she wrote checks to “Cash” in the sum of $5,900, and in June 2004 she withdrew $8,500 in cash from Ralston’s savings account.
Between December 2004 and April 2005, defendant wrote checks from Ralston’s account to Financial Center Credit Union in the total sum of $3,000, which apparently were payments on a Visa card that belonged to defendant. Between October 2004 and April 2005, she used $7,500 of Ralston’s money to make payments on another Visa card (Aspire) that belonged to her.
Meanwhile, in February 2005, New York Life received a request to withdraw about $10,000 from Ralston’s New York Life annuity. A check was sent to Ralston. Linda Specht, the local financial advisor who was responsible for Ralston as a client, received notice of the withdrawal. She also received notice that defendant had been designated the beneficiary of the annuity. These transactions led her to call New York Life and then pull the file because she “was worried about it.”
On May 2, 2005, New York Life received a request for full surrender of the annuity, which had about $100,000 in it. A New York Life representative called Specht to remind her there would be a surrender charge. Based on her conversation with the New York Life representative, Specht called the sheriff. That led to a criminal investigation of defendant for the financial abuse of an elder. In turn, that investigation led to the filing of a complaint against defendant in March 2006 for 15 counts of theft from an elder by a caretaker and one count of attempted theft from an elder by a caretaker.
The case came to trial in September 2006. As we will explain in greater detail below, following the close of the prosecution’s case-in-chief the number of theft counts was reduced from 16 to 5. Count 1 alleged theft involving cash, checks, the payments toward the two Visa accounts, the purchase of plane tickets, and expenditures made at two stores (Cabbage Rose and La De Da). Count 2 alleged theft regarding checks written to defendant’s business, Caring in a Time of Need. Count 3 alleged theft regarding the payments made for improvements to defendant’s home. Count 4 alleged theft regarding the Employees Life annuity. Finally, count 5 alleged attempted theft regarding the New York Life annuity.
The jury found defendant guilty of three of the theft counts and the attempted theft count. Before the jury completed its deliberations on the remaining theft count (count 2, involving checks written to defendant’s business), the prosecution dismissed it for insufficient evidence. The jury then found true an enhancement allegation that the amount taken was more than $100,000. The trial court denied defendant’s new trial motion, declined her request for probation, and sentenced her to an aggregate term of four years in prison.
Defendant points out that the abstract of judgment incorrectly shows she was convicted on this count. Because we will be remanding this case for resentencing, a new abstract will be required in any event, so we need not direct the trial court to correct the current abstract.
DISCUSSION
I
Wheeler/Batson refers to People v. Wheeler (1978) 22 Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79 [90 L.Ed.2d 69], which prohibit the use of peremptory challenges to remove prospective jurors based solely on a presumption of bias from the prospective jurors’ membership in an identifiable group.
Defendant contends the trial court erred in denying her Wheeler/Batson motion regarding the prosecutor’s use of a peremptory challenge against a Hispanic juror. We find no error.
“Prospective jurors may not be excluded from jury service based solely on the presumption that they are biased because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citations.] A defendant bears the burden of establishing a prima facie case of Wheeler error. [Citation.] If the court finds a prima facie case has been shown, the burden shifts to the prosecution to provide race-neutral reasons for the questioned peremptory challenges. [Citation.] The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation.] ‘Jurors may be excused based on “hunches” and even “arbitrary” exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.]’” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) “Once a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its conclusion.” (Id. at p. 1126.)
Here, defendant asserts Wheeler error in the prosecutor’s peremptory challenge of Prospective Juror C. According to defendant, the prosecutor “did not . . . articulate any credible reason for removing [Prospective] juror [C.]” and “her use of three of her first four peremptory challenges” to excuse Hispanic jurors, including Prospective Juror C., “strongly suggests her reasons for removing [Prospective] juror [C.] [were] a sham.”
Prospective Juror C. identified herself as a real estate loan officer or mortgage broker. She said she had never sat on a jury before, was not married, and had no children. She did not recall ever having dealt with anybody in her line of work that “might not be all there” or appeared “to be suffering from some sort of dementia or memory loss or something of that sort.” She had “[n]ever given . . . any thought” to sitting on a jury. Although she had been “subpoenaed” for jury duty “like four or five times,” she had never made it to voir dire before.
After the prosecutor exercised a peremptory challenge to excuse Prospective Juror C., defense counsel made “a Wheeler objection and motion,” asserting that three of the four jurors the prosecutor had excused with peremptory challenges were, or appeared to be, Hispanic, including Prospective Juror C. The trial court agreed a prima facie case of Wheeler error had been shown and asked the court to explain her “reason for excluding the three Hispanic jurors.” With regard to Prospective Juror C., the prosecutor stated as follows: “[F]irst of all, I thought she looked Italian. I didn’t know that she was Hispanic. She is a mortgage broker, that is true. I just -- she’s never had any dealings with [the] elderly. She’s never worked with anybody that seemed to suffer from any sort of dementia or have any experience along some of those lines. [¶] She’s not married. She doesn’t have any children. I just felt that she might be suited for a different -- a different case. It had nothing to do with what her background was. [¶] Like I said, I didn’t even know she was Hispanic.”
On appeal, defendant no longer contends the prosecutor challenged the other two Hispanic prospective jurors for discriminatory reasons. Accordingly, our analysis addresses only the challenge to Prospective Juror C.
The trial court accepted the prosecutor’s explanation, stating, “I don’t think [the prosecutor] has excused [Prospective Juror C.] because of her race. I think she excused her for other race neutral reasons . . . . I accept her reasoning.”
We find no error in the trial court’s ruling. The prosecutor’s explanation that she did not know Prospective Juror C. was Hispanic and that she excused her because she was not married, did not have any children, and had not had any experience with anybody suffering from dementia constituted “adequate neutral reasons” for the peremptory challenge to Prospective Juror C. (People v. Alvarez (1996) 14 Cal.4th 155, 197.) The question was not whether the prosecutor had a good reason for challenging the prospective juror, only whether the reason the prosecutor offered was legitimate, i.e., not a mere surrogate or proxy for group membership. (See ibid.) Moreover, substantial evidence supports the trial court’s implicit finding that the prosecutor’s reasons for excusing Prospective Juror C. were genuine. (See ibid.) “Because the prosecutor’s ‘neutral explanations’ indeed ‘related to [the] individual [juror] and related directly to this case,’ the superior court’s finding of genuineness was supported by substantial evidence.” (Id. at p. 198.) It is also worth noting that any suggestion of group bias as a basis for the prosecutor’s challenge to Prospective Juror C. was substantially undercut by the fact that the trial court determined the other two Hispanic prospective jurors were excused for reasons unrelated to their race, and defendant does not challenge that aspect of the court’s ruling on appeal. Accordingly, we find no merit in defendant’s claim of Wheeler/Batson error.
II
Number Of Convictions
Defendant contends that because the conduct underlying all three counts of theft and the one count of attempted theft occurred “pursuant to a continuing overall scheme or plan,” she could properly be convicted of only a single count of theft. We disagree.
“[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.) This rule is sometimes referred to as the Bailey doctrine, after People v. Bailey (1961) 55 Cal.2d 514. (See, e.g., People v. Drake (1996) 42 Cal.App.4th 592, 596.)
In Packard, the court stated that “[w]hether there were separate independent takings or one general scheme is a question of factbased on the particular circumstances of each case.” (People v. Packard, supra, 131 Cal.App.3d at p. 626.) Defendant contends “[t]his is incorrect.” In her view, the question of whether a “series of takings . . . were made pursuant to one overall scheme or plan . . . presents a mixed question of law and fact.”
Defendant is mistaken. That application of the Bailey doctrine in a particular case is a question of fact is apparent from many cases -- most notably, the two cases cited in Packard that defendant contends do not support that proposition. In the first of those cases, Bailey itself, our Supreme Court stated that “[t]he test applied . . . in determining if there were separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents. . . . [¶] Whether 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.” (People v. Bailey, supra, 55 Cal.2d at p. 519, italics added.)
In the second case, People v. Sullivan (1978) 80 Cal.App.3d 16, which involved multiple charges of grand theft, the trial court refused a jury instruction proffered by the defense that would have told the jurors that if they found the acts of the defendant were committed pursuant to one general intent or impulse they could find that the acts constituted a single offense. (Id. at pp. 18-19.) The appellate court concluded the refusal to give that instruction was error. (Id. at p. 21.) The court further noted as follows: “The evidence did not compel the conclusion that only one offense was involved in the takings alleged in counts two and five through twelve. However, since substantial evidence exists to this effect, the trial court erred in failing to give the instruction requested by appellant, which would have permitted the jury to pass upon the question of whether the acts were committed pursuant to one general intent or impulse and one plan.” (Ibid., italics added.)
It appears clear from Bailey and Sullivan that whether a series of takings from a single individual constituted one theft or multiple thefts is a question of fact. Nonetheless, defendant argues it is a question of law “because the courts in . . . Packard . . . and People v. Brooks (1985) 166 Cal.App.3d 24, 31-32, would not have been able to reverse convictions based on the Bailey doctrine if its application presented only a question of fact.” Again, defendant is mistaken.
Packard involved theft by fraudulent invoices where the victim, Paramount Studios, paid the defendant several times a month over a period of three years. (People v. Packard, supra, 131 Cal.App.3d at p. 625.) The prosecutor charged the theft as three counts, one for each year, and in a bench trial the court convicted the defendant on all three counts. (Id. at pp. 625-626.) On appeal, the defendant argued that “as a matter of law there was a single theft pursuant to one intention and general plan or scheme to steal money from Paramount.” (Id. at p. 626.) He also argued that “the only reasonable conclusion supported by the evidence [wa]s that all the takings were pursuant to one general intent and scheme” and that, “[i]n any event, . . . there [wa]s no reasonable basis in the record for concluding that [he] had three separate schemes, each based neatly on calendar years, as distinguished from either one general scheme or a separate theft for each invoice and payment.” (Ibid.) The appellate court found merit in the defendant’s arguments. (Ibid.) Moreover, the court went on to note that even the People did not “specifically contend that there [wa]s a basis in the evidence for an inference of fact that appellant had three separate yearly schemes.” (Ibid.) The People’s justification for the three separate counts rested not on evidence of the defendant’s intent, but on an interpretation of Penal Code section 487 that the appellate court concluded was erroneous. (Packard, at p. 626.) Accordingly, the court concluded that “[i]n the absence of any evidence from which it could reasonably be inferred that appellant had three separate intents and plans, the only reasonable conclusion supported by the record is that appellant had a single continuing plan or scheme for stealing money from Paramount. [Citation.] Appellant should have been convicted of only a single grand theft.” (Id. at p. 627.)
Properly read, Packard is entirely consistent with the rule that whether a series of takings from a single individual constituted one theft or multiple thefts is a question of fact. Packard simply recognized that where the evidence supports only one reasonable conclusion on the question, it may be resolved as a matter of law -- just as every question of fact may be. (See West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 985 [“issues of fact become those of law where . . . the facts are undisputed and permit of only one conclusion”].)
Brooks is of no greater assistance to defendant. There, the defendant, who ran an auction business, was convicted of “13 counts of felony grand theft and 1 count of misdemeanor theft” based on the fact that after he conducted an auction on a particular day in 1980, “Fourteen consignors of equipment sold at this auction never received the proceeds from the sale of their machinery.” (People v. Brooks, supra, 166 Cal.App.3d at pp. 24, 27.) On appeal, the appellate court concluded “that the instant thefts from a single fund arising from a single auction, when seen in the light of the prosecution’s own theory of a common scheme of ‘kiting’ auction proceeds, were the product of a general intent or overall plan, with but a single ultimate object and thus punishable as a single offense under Penal Code section 654.” (Brooks, at p. 31.)
Brooks is of no assistance to defendant for at least two reasons. First, the Brooks court did not expressly address the question of whether the issue before it -- how many thefts the defendant had committed -- was a question of fact or a question of law. Second, Brooks conflated the question of whether multiple convictions are permissible under the Bailey doctrine with the entirely separate question of whether multiple punishment is permissible under Penal Code section 654. (See People v. Garcia (1990) 224 Cal.App.3d 297, 308-309 [criticizing Brooks on this basis].) For these reasons, we find Brooks unpersuasive on the question at issue here.
Thus, under the case law, the question of whether a series of takings from a single individual constituted one theft or multiple thefts is a question of fact. Defendant contends, however, that “[t]he parties below . . . treated the application of the Bailey doctrine as a question of law,” and this appears to be true inasmuch as they argued to the trial court over how many counts of theft could properly be charged but did not submit the issue to the jury.
Following the close of her case-in-chief, the prosecutor moved to amend the information to charge only nine counts where it had previously charged 16. Defense counsel argued that under the Bailey doctrine “[t]his is all one course of conduct” and “[i]t should be one count.” The court decided that five of the counts the prosecutor wanted to charge separately were “distinct from the remaining counts” but were not distinct from one another, so the court allowed an amended information containing five counts to be filed. Immediately thereafter, the court explained to the jurors that the number of counts had been reduced from 16 to 5, but told them they were to “disregard” “the reason for the reduction of counts” and simply “make a decision as to whether or not the defendant is guilty or not guilty of any or all of the counts.” Consistent with this admonition, the trial court ultimately instructed the jury that “[e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.”
At no point did defendant argue in the trial court that the question of how many thefts had occurred, if any, should be submitted to the jury under an instruction of the sort offered in Sullivan. Thus, it appears the parties did treat the issue as a question of law for the court to decide. Maintaining that approach on appeal, defendant essentially argues that the trial court erred in allowing the case to proceed on more than one count of theft because, as a matter of law, she had only “one continuing overall scheme or plan” and thus only one count of theft could properly be maintained against her.
Likewise, on appeal defendant does not assert error in the failure to give such an instruction. Accordingly, we do not address that question.
That the parties treated the issue as one of law for the court to decide is further supported by the fact that, in moving for a new trial, defendant argued that “[t]he court erroneously failed to consolidate all charges into a single count.”
In light of this argument, the question for us on appeal is whether, based on the evidence, a reasonable trier of fact could have found that defendant had separate and distinct intents, or whether, instead, the only reasonable conclusion from the evidence was that defendant had a single, general intent to steal from Ralston. If the former scenario is true, then the trial court did not err in allowing the case to go forward on more than one count; only if the latter scenario is true would any error be shown. Of course, to convince us that only one reasonable conclusion follows from the evidence, defendant must actually set forth the evidence in making her argument. (Cf. Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 782 [appellant challenging sufficiency of the evidence must set forth all material evidence on the point].) This she does not do. Instead, in arguing that she could properly be convicted of only a single count of theft, defendant focuses exclusively on the prosecutor’s opening statement and closing argument to the jury. In defendant’s view, “The prosecution theory was that [defendant] had a single scheme to obtain Ms. Ralston’s money” and “[e]ach individual transaction was simply part of the overall scheme perpetrated by [defendant] for the purpose of obtaining Ms. Ralston’s money.”
It is, however, of no moment to us what the prosecution’s theory may have been, if, based on the evidence, a reasonable trier of fact could have found that defendant had separate and distinct intents. To carry her burden of demonstrating trial court error, defendant had to show us that only one reasonable conclusion followed from the evidence. By failing to set forth all of the relevant evidence on the point, defendant has failed to carry her burden. Accordingly, we find no error.
III
Sufficiency Of The Evidence
Defendant challenges the sufficiency of the evidence to support her convictions on count 4 (theft related to the Employees Life annuity) and count 5 (attempted theft related to the New York Life annuity) and the true finding that she stole more than $100,000. We will address each of those arguments in turn. First, however, we set forth the basic rules governing our review of these arguments.
“The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] ‘“[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.”’ [Citation.] ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’” (People v. Snow (2003) 30 Cal.4th 43, 66.)
“An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
“Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, ‘without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction.’ [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
With these principles in mind, we turn to defendant’s arguments.
A
Count 4 -- The Employees Life Annuity
Defendant contends the evidence was insufficient to support her conviction of theft relating to the Employees Life annuity because “[t]he evidence showed the Employee[s] Life annuity remained in Ms. Ralston’s name” and “[t]he $35,437.40 withdrawn from the Employee[s] Life annuity was deposited into Ms. Ralston’s savings account at the Bank of Stockton.” In short, defendant contends there was no evidence she “took any of the Employee[s] Life annuity.”
At trial, the prosecutor’s theory of theft for count 4 was apparently twofold. First, the prosecutor suggested that defendant committed theft simply by putting Ralston’s money in the annuity because the annuity “wasn’t for the benefit of [Ralston]’s trust. It was for the sole benefit of . . . defendant.” Second, the prosecutor suggested that defendant committed theft by taking the $35,437.40 withdrawn from the annuity.
At trial, the prosecutor justified her theory of theft based on the $35,437.40 withdrawn from the Employees Life annuity by arguing, “[T]hat dollar amount is not included in Count One, Two and Three. We don’t know where that check went. It didn’t go into Jean Ralston’s account. So Jean Ralston never got that money. It was sent to [defendant]’s home.” As defendant points out, however -- and the People now concede -- the evidence showed that the amount withdrawn from the Employees Life annuity was deposited into Ralston’s savings account at the Bank of Stockton.
On appeal, however, the People do not deny that the Employees Life annuity remained in Ralston’s name at all times, and they make no attempt to justify the theft conviction relating to this annuity based on defendant’s mere purchase of it. Instead, the People rely exclusively on defendant’s use of the $35,437.40 she withdrew from the annuity. Specifically, the People argue that “[a]lmost immediately after the [$35,437.40] had been deposited [into Ralston’s savings account], [defendant] started taking large cash withdrawals.” They also point out that shortly after that deposit, “a check for $2,000 drawn on Ms. Ralston’s account was used to pay [defendant’s] Aspire VISA,” and later another “$1,500 was used to pay Aspire VISA.” The People also point to “the money expended by [defendant] for such things as patio and lawn furniture and landscaping.” In the People’s view, the evidence of these expenditures from an account that contained money withdrawn from the Employees Life annuity is sufficient to support defendant’s theft conviction on count 4.
In reply, defendant asserts (among other things) that “[t]he expenditures cited by [the People] to support count four . . . were the subject of count one.” In other words, she contends that if the conviction on count 4 is based on her spending of the money withdrawn from the annuity, that conviction is duplicative of her conviction on count 1 and cannot stand.
This point has merit. The record demonstrates that the expenditures the People now (belatedly) attempt to use to justify the conviction on count 4 were already included not only within the scope of count 1, but also within the scope of count 3.
Count 1 of the amended information covered all of defendant’s cash withdrawals from Ralston’s accounts, as well as her payments toward her Aspire Visa. As detailed above, ATM cash withdrawals were taken from Ralston’s checking and savings accounts between December 2004 and April 2005. Also, between June 2004 and March 2005, defendant wrote checks to “Cash,” and in June 2004 she withdrew $8,500 in cash from Ralston’s savings account. Between October 2004 and April 2005, defendant used Ralston’s money to make payments on her Aspire Visa card. All of these transactions (and more) were covered by count 1, but the People are now attempting to rely on a subset of those transactions (those occurring after the deposit of the funds withdrawn from the Employees Life annuity at the end of January 2005) to justify defendant’s conviction on count 4.
Count 3 is similar. That count covered all of the amounts defendant took from Ralston for home improvement purchases. As detailed above, those purchases began in July 2004 with the installation of a flagstone walkway in her backyard; continued through the fall with the remodeling of the garage; and extended into 2005 with the backyard water feature, the patio table and chairs, the custom gates, and the block walls. All of those transactions fell within the scope of count 3, but the People are now attempting to rely on a subset of those transactions (those occurring after the end of January 2005) to justify defendant’s conviction on count 4.
Plainly defendant cannot be convicted of stealing the same money twice when she took it only once. Since the transactions on which the People seek to rest the conviction on count 4 were already included in counts 1 and 3, we agree with defendant that her conviction on count 4 cannot stand.
B
Count 5 -- The New York Life Annuity
Defendant contends the evidence was insufficient to support her conviction of attempted theft relating to the New York Life annuity because “the prosecution evidence failed to prove [she] had the specific intent to steal the money from the New York Life annuity.” According to defendant, “It was pure speculation [that she] intended to use the money from the New York Life annuity solely for her own benefit” “[g]iven [her] use of a substantial portion of Ms. Ralston’s money to benefit Ms. Ralston.”
This argument fails at the threshold because defendant ignores the standard of review. As this court explained in People v. Sanghera, supra, 139 Cal.App.4th at page 1573, a defendant cannot prevail on a sufficiency of the evidence argument “by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself.” Instead, “to prevail on a sufficiency of the evidence argument, the defendant must present his case to us consistently with the substantial evidence standard of review. That is, the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jury’s verdict. [Citation.] If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jury’s verdict may lie in the evidence he ignores.” (Id. at p. 1574.)
Such is the case here. Resting her argument on the assertion that she used “a substantial portion of Ms. Ralston’s money to benefit Ms. Ralston,” defendant ignores the reasonable inference the jury was entitled to draw from its finding (the evidentiary basis of which defendant does not challenge on appeal) that defendant stole other sums from Ralston. “Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence.” (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) Here, the jury reasonably could have inferred from all the facts and circumstances -- including the fact that defendant stole other sums from Ralston -- that defendant intended to steal the money from the New York Life annuity when she attempted to secure a full surrender of the $100,000 in that annuity in May 2005. Accordingly, the evidence was sufficient to support defendant’s conviction on count 5.
C
Aggravated White Collar Crime Enhancement
Defendant contends the evidence was insufficient to support the jury’s finding that she took more than $100,000 from Ralston. We disagree.
At the time applicable here, subdivision (a)(1) of Penal Code section 186.11 provided in pertinent part that “[a]ny person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of more than one hundred thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of which he or she has been convicted, by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3).” This is known as the aggravated white collar crime enhancement. (Pen. Code, § 186.11, subd. (a)(1).) At the time applicable here, when the amount taken was more than $100,000 but not more than $150,000, the additional term of imprisonment was one year. (Pen. Code, § 186.11, subd. (a)(3); former Pen. Code, § 12022.6, subds. (a)(1) & (2).)
The statute was amended in 2007. (Stats. 2007, ch. 408, § 1.)
Here, the jury found that defendant was guilty of two or more felonies which involved the taking of more than $100,000 within the meaning of Penal Code section 186.11, subdivision (a)(3). It is this finding defendant challenges. Essentially, she contends the evidence was sufficient only to support a finding that she took, at most, $8,282.95.
Her challenge to the evidence supporting the enhancement finding is twofold. First, with respect to the various takings that made up count 1, defendant contends “the evidence was sufficient only to sustain a conviction of [her] having taken $4,985.45,” which consisted of “the combined cost of the plane tickets, the payments to [defendant]’s credit card, and the payments to the retail stores Cabbage Rose and La De Da.” With respect to the other $35,304.50 related to this count -- which consisted of “ATM withdrawals, checks written to cash, and checks written to [defendant]” -- defendant contends “[t]he prosecution did not present evidence from which any reasonable juror could have concluded that [she], as the primary caretaker of Ms. Ralston, intended to use the money . . . for her own benefit and not for the benefit of Ms. Ralston.”
This argument suffers from a fatal flaw similar to the one we found in the previous argument relating to count 5. Essentially defendant contends that absent specific evidence of what she did with the money she took from Ralston’s accounts, the jury could not find that she intended to steal that money, given the evidence that she “was the primary caretaker of Ms. Ralston” and thus “likely . . . spent much of the money for Ms. Ralston’s benefit.” The problem with defendant’s argument is that it ignores the reasonable inferences regarding defendant’s intent the jury was entitled to draw from all of the facts and circumstances of the case, including the fact that defendant stole other sums from Ralston to pay for plane tickets, pay off her own credit cards, make purchases for herself, and improve her home -- sums that defendant does not now dispute. From all the facts and circumstances -- including the theft of these other amounts -- the jury reasonably could have inferred that defendant intended to steal the $35,304.50 that she removed from Ralston’s accounts by means of ATM withdrawals, checks written to cash, and checks written to herself.
As we explain more fully below, in addition to conceding the sufficiency of the evidence that she stole $4,985.45 in connection with count 1, defendant concedes the evidence was sufficient to find she stole $3,297.50 for home improvement purposes in connection with count 3.
The second aspect of defendant’s challenge to the evidence supporting the enhancement finding relates to count 3, which involved expenditures to improve her home. Of the more than $77,000 of Ralston’s money that defendant acknowledges she spent on home improvements, she contends “only $3,297.50 was arguably used solely to benefit [defendant] and not Ms. Ralston.” This amount consists of “$2,527.50 . . . spent to refinish the hardwood floors in the dining room, hallway and three bedrooms in [her] home and $770.00 . . . spent to paint [her] daughter’s bedroom.” As for the remainder, defendant contends she could not be convicted of taking the following amounts:
(1) “$42,175.00 . . . spent renovating the garage into a guest cottage for Ms. Ralston”;
(2) “$16,856.02 [spent] building walls and gates to [defendant’s] home and the guest cottage”;
(3) “$9,077 [spent] to lay concrete and install a flagstone patio between [defendant’s] home and the guest cottage”; and
(4) “8,539.46 [spent] decorating the backyard.”
Defendant also refers to other expenditures totaling $5,611.23 that do not fall into any of these four categories.
Defendant contends she could not be convicted of taking the foregoing amounts because, in her view, these expenditures “benefitted Ms. Ralston” and therefore “could not have constituted theft because Ms. Ralston was not permanently deprived of her property.” Specifically, defendant contends Ralston “lived in the [guest] cottage for approximately five months from January 2005 through May 2005.” With respect to the walls and gates, defendant contends “[i]t is well known that people with dementia have the tendency to wander and forget how to get home” and thus they were “provid[ed] for Ms. Ralston’s protection.” As for the concrete and flagstone patio, defendant argues they “made walking from the cottage to [defendant]’s home easier than if [Ralston] had to walk through grass.” Finally, with respect to the decorations, defendant contends they “created a more pleasant and relaxing environment for Ms. Ralston to spend her days.”
We reject defendant’s argument. The fact that Ralston may have received some fleeting benefit from defendant’s expenditures to permanently improve her property with Ralston’s money does not mean those expenditures could not be used to meet the monetary threshold for imposing the aggravated white collar crime enhancement. Certainly defendant cites no authority supporting that conclusion; in fact, defendant’s entire argument on this point contains not a single legal citation.
Substantial evidence supports the conclusion that defendant took Ralston’s money with the intent to permanently deprive her of it and was therefore guilty of theft by larceny. (See People v. Davis (1998) 19 Cal.4th 301, 305 [elements of theft by larceny].) That defendant may have permitted Ralston to “benefit” for a time from what defendant did with the money does not make the taking any less of a theft. In the end, the improved property belonged to defendant, not Ralston, and the jury was entitled to include the amounts defendant spent on the improvements in its determination of how much defendant stole from Ralston.
IV
Instructional Error
Defendant contends the trial court erred by failing to give three different jury instructions sua sponte. We will address each of those instructions in turn. First, however, we set forth the legal principles governing a trial court’s duty to instruct the jury sua sponte in a criminal case.
“A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial.” (People v. Ervin (2000) 22 Cal.4th 48, 90.) However, “a trial court’s duty to instruct, sua sponte, or on its own initiative, on particular defenses . . . aris[es] ‘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.’” (People v. Barton (1995) 12 Cal.4th 186, 195.) And while “[a]n accused is entitled on request to nonargumentative instructions that ‘pinpoint’ the theory of the defense,” a trial court has “no sua sponte duty to provide” pinpoint instructions. (People v. Webster (1991) 54 Cal.3d 411, 443.) Finally, the failure to give a required instruction may be deemed harmless when “‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.’” (People v. Wright (2006) 40 Cal.4th 81, 98.)
With these principles in mind, we turn to defendant’s arguments.
A
Mistake Of Fact
Defendant argues the trial court erred in failing “to sua sponte give the mistake of fact instruction in CALCRIM 3406” “because the evidence raised the issue of whether [defendant] believed she had authority to spend Ms. Ralston’s money in the way she did.” We disagree.
“A person who commits an act . . . under a mistake of fact which disproves his or her criminal intent, is excluded from the class of persons who are capable of committing crimes.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1425, citing Pen. Code, § 26, class three.) Consistent with this principle, CALCRIM No. 3406 instructs the jury that if the defendant did not have the required criminal intent or mental state because she mistakenly believed a fact, or if the defendant’s conduct would have been lawful under the facts as she believed them to be, then the defendant is not guilty.
Here, the jury was instructed on three types of theft: theft by larceny, theft by trick, and theft by embezzlement. For each type of theft, the intent element was essentially the same; the jury was instructed that to prove defendant was guilty of theft, the People had to prove that when she took, obtained, or converted the property, she intended to deprive Ralston of it permanently or remove it from Ralston’s or Ralston’s agent’s possession for so extended a period of time that Ralston would be deprived of a major portion of the value or enjoyment of the property.
Under defendant’s argument, the jury should have been instructed on mistake of fact because “all the facts and circumstances of her relationship with Ms. Ralston raised a question of fact with regard to whether [defendant] honestly believed her expenditure of Ms. Ralston’s funds was lawful.” In other words, in defendant’s view, if she honestly believed she was entitled to spend Ralston’s money the way she did, then she could not have intended to deprive Ralston of that money, and her mistake regarding the scope of her authority would have negated the criminal intent required for theft.
Although defendant frames her argument in terms of “mistake of fact,” the cases she cites address the issue in terms of “claim of right.” Thus, in People v. Tufunga (1999) 21 Cal.4th 935, the California Supreme Court explained that in theft cases “‘“[i]t has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property [taken] negates felonious intent. [Citations.] A belief that the property taken belongs to the taker . . . is sufficient to preclude felonious intent.”’” (Id. at p. 943.)
Consistent with this rule, Penal Code section 511 provides that as to the crime of embezzlement, “it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable.” In this context, however, “good faith” means more than simply (as defendant contends) “a belief the defendant actually held.” “‘Whether a claim is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully; the circumstances must be indicative of good faith.’ [Citations.] For example, the circumstances in a particular case might indicate that although defendant may have ‘believed’ he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith.” (People v. Stewart (1976) 16 Cal.3d 133, 140, quoting People v. Martin (1957) 153 Cal.App.2d 275, 283.)
Where it appears a defendant in an embezzlement case is relying on a claim-of-right defense, or there is substantial evidence to support such a defense, the trial court has a duty to instruct the jury on that defense sua sponte. (People v. Stewart, supra, 16 Cal.3d at p. 140.) In the context of a trial court’s duty to instruct sua sponte, “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” (People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.)
Here, defendant contends there was substantial evidence to support a claim-of-right or mistake-of-fact defense essentially because the evidence showed she “had a close and intimate friendship with Ms. Ralston” and Ralston made defendant the beneficiary of her living trust. According to defendant, “Given [her] close relationship with Ms. Ralston and the fact [defendant] was going to receive [Ralston’s] estate upon her death, the evidence raised a question of fact whether [defendant] honestly believed the expenditures were legal.”
We do not agree that the evidence on which defendant relies was such that a reasonable jury could have found it persuasive on the question of whether defendant believed, in good faith, that she was entitled to spend Ralston’s money as she did. It is significant to note that defendant herself did not testify in her own defense. Thus, this is not a case like Stewart, where the defendant, accused of embezzling corporate funds, testified that the person he believed was the sole owner of the corporation “had given him permission to withdraw corporate funds for personal use from time to time.” (People v. Stewart, supra, 16 Cal.3d at p. 138.) Here, defendant relies solely on inferences she believes the jury could have drawn from the evidence presented of her close relationship with Ralston and her status as the beneficiary of Ralston’s estate. But these factors do not support a reasonable inference that defendant believed in good faith she was entitled to indiscriminately spend more than $100,000 of Ralston’s money on the things she did, including substantial improvements to her own home, paying off her own credit cards, and airline tickets for herself and her future husband, who did not know Ralston. Moreover, the closeness of defendant’s relationship with Ralston and her status as the beneficiary of Ralston’s estate cannot be viewed in isolation from the remaining evidence, including (but not limited to) the evidence that when the first attorney to whom she brought Ralston refused to prepare a power of attorney to give her control of Ralston’s money, she quickly found another who would.
Because we do not find any substantial evidence to support a mistake-of-fact or claim-of-right defense, we conclude the trial court did not err in failing to instruct the jury on mistake of fact sua sponte.
B
Entitlement To Reasonable Compensation
Defendant contends the trial court erred in failing to instruct the jury sua sponte that she “was entitled to reasonable compensation from Ms. Ralston’s assets for the value of the services she provided” in “caring for Ms. Ralston.” We find no error.
Defendant premises her argument on Probate Code section 4204, which provides that “[a]n attorney-in-fact is entitled to reasonable compensation for services rendered to the principal as attorney-in-fact.” An attorney-in-fact is “a person granted authority to act for the principal in a power of attorney.” (Prob. Code, § 4014, subd. (a).) Thus, at best, the statute on which defendant relies provides that she was entitled to reasonable compensation for services rendered to Ralston while she was acting as Ralston’s attorney-in-fact under the power of attorney. Defendant, however, contends the jury should have been told that she “was entitled to compensation for her time caring for Ms. Ralston.” Time spent caring for Ralston, however, is not the same as time spent acting as Ralston’s attorney-in-fact.
Defendant also mentions Probate Code section 2623, subdivision (a)(2), which deals with “compensation for services rendered by [a] guardian or conservator as the court determines is just and reasonable.” That statute has no bearing here, however, because defendant has not pointed to any evidence that she was Ralston’s guardian or conservator. Although the power of attorney form did include the word “conservatorship” in its title, the only provision in the form relating to a conservatorship was one that nominated defendant to be appointed as Ralston’s conservator if a conservator were to be appointed.
As we have explained, a court’s duty to instruct sua sponte on general principles of law is limited to those principles that are “closely and openly connected with the facts presented at trial” (People v. Ervin, supra, 22 Cal.4th at p. 90), and a court has a duty to instruct on a particular defense “‘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’” (People v. Barton, supra,12 Cal.4th at p. 195). Here, defendant has failed to persuade us that the legal principle regarding her right to reasonable compensation for the services she rendered to Ralston as Ralston’s attorney-in-fact (as distinguished from the services she may have rendered as Ralston’s caregiver) was closely and openly connected with the facts presented at trial. Moreover, defendant points to nothing in the record to show she was relying on the legal principle from Probate Code section 4204 as a defense, and she fails to point to any evidence in the record, substantial or otherwise, supportive of such a defense. Only in broad terms does she assert that “[t]he jury could have considered” the “ATM withdrawals,” “checks to cash,” and payment of “several of her debts directly from Ms. Ralston’s checking or savings account” “in determining whether [she] was simply receiving reasonable compensation for the services she was providing Ms. Ralston.” This alone, however, is not enough to persuade us the trial court had a duty to sua sponte instruct the jury on the right of an attorney-in-fact to reasonable compensation for services rendered in that role. For example, defendant points to no evidence that would provide a reasonable and proportional link between the amount of money she took in ATM withdrawals, checks to cash, and for payment of her debts to services she rendered to Ralston as Ralston’s attorney-in-fact. Under these circumstances, we reject defendant’s claim of instructional error.
C
Fiduciary’s Improper Use Of Funds
Defendant contends the trial court erred in failing to instruct the jury sua sponte “on the difference between civil breach of fiduciary duty and criminal liability for theft.” Again, we find no error.
Defendant relies primarily on People v. Whitney (1953) 121 Cal.App.2d 515 to support her argument. That reliance is misplaced. In Whitney, the appellate court found the jury instructions on embezzlement erroneous primarily because the instructions “omit[ted] the most important element required by the Penal Code sections, the appropriation of such property with fraudulent intent.” (Whitney, at p. 520.) In other words, the Whitney jury received no instruction on the intent element of the crime of embezzlement. “By the instructions thus given and emphasized the jury would naturally understand that any conversion of the trust property was sufficient to establish the criminal offense of embezzlement.” (Whitney, at p. 520.)
The jury was instructed “‘that the four essential elements of the offense of embezzlement are: (1) That defendant was acting in the capacity of an agent; (2) that he obtained and held the money in his trust capacity; (3) that the money belonged to his principal; and (4) that he converted it to his own use in violation of his trust.’” (People v. Whitney, supra, 121 Cal.App.2d at p. 519.)
Here, in contrast, the jury was instructed on the intent element of all three types of theft at issue: theft by larceny, theft by trick, and theft by embezzlement. Under the instructions given, the jury could have convicted defendant only if it found that when she took, obtained, or converted Ralston’s property, she possessed the requisite criminal intent, i.e., the intent to deprive Ralston of her property permanently or remove it from Ralston’s or Ralston’s agent’s possession for so extended a period of time that Ralston would be deprived of a major portion of the value or enjoyment of the property. No similar instructions were given in Whitney, and therefore Whitney has no bearing here. For this reason, we reject defendant’s argument that “the trial court’s instructions defining theft were inadequate.”
V
Denial Of New Trial Motion
Defendant moved for a new trial on three grounds: (1) insufficient evidence; (2) failure to consolidate all of the charges into one charge; and (3) error in the jury instructions regarding elder abuse. In her memorandum of points and authorities in support of her motion, however, defendant did not offer any argument on the third point; instead, she argued there was “a strong possibility that jury misconduct existed.” Her argument on this point was based on a declaration from the jury foreman that “the Power of Attorney was a strong contributing factor” to the jury’s verdicts. Based on the foreman’s declaration, defendant argued that “[t]he jury’s consideration of this separate civil law duty [imposed by the power of attorney] was clearly improper” and constituted “impermissible misconduct.”
In a supplemental memorandum of points and authorities, defendant expanded her argument relating to the power of attorney, arguing: (1) that the trial court should have instructed the jury “that the mere failure to preserve assets was not sufficient to prove theft even though that may be sufficient to establish civil liability”; and (2) that trial counsel was ineffective for failing to offer “appropriate instructions regarding the power of attorney and the intent required for conviction in this case.”
While the attorney who represented defendant at trial was the one who filed her new trial motion and the original points and authorities in support of that motion, a different attorney filed the supplemental points and authorities and argued the motion to the court.
The trial court ruled that the declaration from the jury foreman was inadmissible, trial counsel was not ineffective, and the jury was properly instructed. Accordingly, the trial court denied the new trial motion entirely.
On appeal, defendant contends the trial court erred in striking the declaration of the jury foreman and erred in denying the new trial motion because “the jury instructions were inadequate because they failed to distinguish between a breach of fiduciary duty and theft.” Defendant also contends the trial court “should have granted the motion for new trial based on ineffective assistance of counsel.” We find no merit in any of these arguments.
First, the trial court did not err in determining that the jury foreman’s declaration was inadmissible for the purpose for which defendant sought to use it. As defendant acknowledges, “Upon an inquiry as to the validity of a verdict, . . . [n]o evidence is admissible . . . concerning the mental processes by which [the verdict] was determined.” (Evid. Code, § 1150, subd. (a).) Here, the foreman’s declaration stated that “in coming to our decision to render guilty verdicts upon the defendant, the Power of Attorney was a strong contributing factor.” Clearly this was evidence concerning the mental processes by which the jury reached its verdicts.
Defendant’s contention that the jury foreman’s declaration was not offered “to show the mental process by which the verdict was determined,” but instead “to demonstrate the necessity for an instruction” and “to show legal error concerning an issue related to jury deliberations,” does not alter our conclusion. The evidentiary bar imposed by Evidence Code section 1150 does not turn on the purpose for which the evidence is offered but rather the nature of that evidence. If the evidence at issue concerns the mental processes by which the jury reached its verdict, the evidence is inadmissible, regardless of whether the purpose for offering the evidence is to show legal error or demonstrate the necessity for an instruction.
As for defendant’s argument that the jury instructions were inadequate because they failed to distinguish between a breach of fiduciary duty and theft, we have rejected that argument already in concluding that the trial court had no sua sponte duty to instruct the jury on the difference between breach of fiduciary duty and criminal liability for theft.
Finally, with regard to defendant’s claim of ineffective assistance of counsel, it has long been established that a new trial motion can be granted only on a ground specified in the motion. (People v. Johnston (1940) 37 Cal.App.2d 606, 609; People v. Skoff (1933) 131 Cal.App. 235, 240; see also Malkasian v. Irwin (1964) 61 Cal.2d 738, 745.) Allowing a court to grant a new trial on a ground not raised by the moving party would be the equivalent of allowing the court to grant a new trial on its own motion, an act the court is without authority to do. (See People v. Rothrock (1936) 8 Cal.2d 21, 23-24; People v. Sanders (1990) 221 Cal.App.3d 350, 363.)
Here, as we have noted already, defendant specified only three grounds in his new trial motion: (1) insufficient evidence; (2) failure to consolidate all of the charges into one charge; and (3) error in the jury instructions regarding elder abuse. Consequently, the trial court could not have granted a new trial based on ineffective assistance of counsel even if it had wanted to.
Even if we consider defendant’s argument on its merits, however, we find none. The essence of defendant’s argument is that her trial attorney should have requested instructions on “the distinction between a civil breach of fiduciary duty and theft” because “[i]t was critical for the jury to understand [her] improper spending of money did not by itself constitute theft.” But, as we have explained already, the trial court’s instructions on the elements of theft -- specifically, the criminal intent required for theft -- were adequate for this purpose. The jury was told that it could convict defendant only if it found that when she took, obtained, or converted Ralston’s property, she possessed the intent to deprive Ralston of her property permanently or remove it from Ralston’s or Ralston’s agent’s possession for so extended a period of time that Ralston would be deprived of a major portion of the value or enjoyment of the property. Defendant has not shown that a reasonably competent attorney would have sought further instructions from the court distinguishing the criminal intent required for theft from a civil breach of fiduciary duty, nor has she shown a reasonable probability that she would have obtained a more favorable result if her trial counsel had requested such instructions. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696] [to establish ineffective assistance of counsel, defendant must demonstrate that counsel’s performance was deficient and defendant suffered prejudice as a result].) Accordingly, we find no error in the denial of her new trial motion.
VI
Ineffective Assistance Of Counsel
In addition to arguing that the trial court erred in denying her new trial motion on the ground of ineffective assistance of counsel, defendant pursues a claim of ineffective assistance directly on appeal, asserting that her trial counsel was ineffective because he: (1) “failed to request a jury instruction telling the jury [defendant] was not guilty of a crime if she honestly believed she was spending Ms. Ralston’s money properly”; (2) “failed to request a jury instruction explaining the distinction between a civil breach of fiduciary duty and theft”; and (3) “failed to request a jury instruction instructing the jury [defendant] was entitled to reasonable compensation for the services she provided [Ralston].”
As should be apparent, these assertions of ineffective assistance are similar to defendant’s earlier arguments that the trial court erred in failing to instruct the jury sua sponte. As should also be apparent, our resolution of those earlier arguments foreshadows our resolution of defendant’s claims of ineffective assistance.
First, we have concluded already that any error in the failure to give a mistake of fact instruction was harmless because the factual question posed by such an instruction -- whether defendant honestly but mistakenly believed she had authority to spend Ralston’s money the way she did -- was necessarily resolved adversely to defendant under the theft instructions the jury received. From this conclusion, it necessarily follows that the failure of defendant’s trial counsel to request a mistake of fact instruction did not fall below the standard of a reasonably competent attorney and/or was not prejudicial.
Second, we have concluded already in response to defendant’s argument regarding her new trial motion that defendant has not shown that a reasonably competent attorney would have sought further instructions from the court distinguishing the criminal intent required for theft from a civil breach of fiduciary duty, nor has she shown a reasonable probability that she would have obtained a more favorable result if her trial counsel had requested such instructions. Thus, her second claim of ineffective assistance fails also.
Finally, with regard to the failure to request an instruction on defendant’s right to reasonable compensation for her services, we have already observed that defendant has pointed to nothing in the record to show she was relying on this legal principle from Probate Code section 4204 as a defense and that she has failed to point to any evidence in the record, substantial or otherwise, supportive of such a defense. Under these circumstances, her trial counsel did not render ineffective assistance by failing to request the instruction defendant now advocates.
VII
Denial Of Probation
Defendant contends the trial court abused its discretion in denying her probation. As she acknowledges, however, “The trial court has broad discretion to grant or deny probation, except where otherwise limited by statute, and a decision denying probation will be reversed only upon a clear showing of abuse and that the court acted in a capricious or arbitrary manner.” (People v. Marquez (1983) 143 Cal.App.3d 797, 803.) “A heavy burden is placed on a defendant in attempting to show an abuse of discretion in denying a request for probation.” (Ibid.)
“‘In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) “[I]n determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court’s finding that a particular factor was applicable.” (Id. at p. 1313.)
Here, defendant has not carried her heavy burden of showing an abuse of discretion. In arguing that the trial court abused its discretion in denying probation, defendant proceeds systematically through the relevant factors in rule 4.414 of the California Rules of Court in an effort to persuade us that “[a]lmost all of th[ose] factors . . . suggest [she] should have been granted probation.” The primary problem with defendant’s argument, however, is that she fails to view the factors in the light most favorable to the jury’s verdicts and the trial court’s decision. While some factors relevant to a grant of probation -- such as the fact that defendant had no prior criminal record -- were undisputed, others were disputed, but defendant consistently argues those factors in the light most favorable to her, rather than acknowledging that there was substantial evidence to support the trial court’s findings on those factors.
For example, one of the reasons the trial court cited for denying probation was that defendant’s crimes “involve[d] a significant amount of money. The jury found that this was over $100,000.” Thus, the trial court considered defendant’s crimes serious based on the amount of money involved, and (as we have effectively noted in upholding the aggravated white collar crime sentence enhancement) there was substantial evidence to support this conclusion. In arguing that the trial court should have granted her probation, however, defendant minimizes her crimes, asserting that “[m]uch of the money spent by [defendant] was for Ms. Ralston’s benefit” and that “[t]he improper expenditures appear to be as much the result of [her] mistaken notion about her authority under the power of attorney as criminal intent.” This argument does not give fair weight to the jury’s verdicts, which were supported by substantial evidence.
Although the trial court recognized that defendant’s lack of a prior criminal record was “a significant factor” in her favor, the court nonetheless decided to deny probation because (1) defendant’s crimes involved “a significant amount of money”; (2) Ralston was “particularly vulnerable”; (3) defendant’s actions showed “criminal sophistication,” “premeditation,” and “deliberation”; and (4) defendant’s crimes “took place over a significant period of time.” Defendant has not shown that the trial court’s findings on these factors lacked sufficient evidentiary basis. Moreover, defendant fails to show that when the additional factors to which she now refers -- e.g., she “was not armed with a weapon,” she “did not inflict physical injury to the victim,” “the impact of prison on [defendant] and her family will be devastating,” etc. -- are taken into account, the trial court’s decision to deny probation must be viewed as arbitrary and capricious or beyond the bounds of reason.
The evidence supports the conclusion that defendant stole a substantial sum of money from a vulnerable victim over an extended period of time. Under these circumstances, the trial court acted within its discretion in denying probation, even though defendant had no prior criminal record and other factors may have supported a grant of probation. It is not for us to substitute our judgment for that of the trial court on this issue.
VIII
Conclusion
In conclusion, we reject all of defendant’s argument save one -- there was no substantial evidence to support her conviction of theft relating to the Employees Life annuity (count 4) separate and apart from her convictions on counts 1 and 3. Accordingly, defendant’s conviction on count 4 must be reversed. Because the reversal of count 4 requires the designation of a new principal term, remand for resentencing is appropriate.
DISPOSITION
The judgment with respect to count 4 is reversed; the judgment with respect to counts 1, 3, and 5 is affirmed; and the case is remanded to the trial court for resentencing.
We concur: SCOTLAND , P. J., BLEASE , J.