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People v. Gilbert

Court of Appeals of California, Fourth District, Division One.
Nov 5, 2003
No. D040245 (Cal. Ct. App. Nov. 5, 2003)

Opinion

D040245.

11-5-2003

THE PEOPLE, Plaintiff and Respondent, v. VICTORIA R. GILBERT et al., Defendants and Appellants.


The jury convicted appellants Victoria Gilbert and Gary Kircus each of one count of caretaker theft from an elder exceeding $400 (Pen. Code, § 368, subd. (e)), and convicted Gilbert of one count of willful cruelty to an elder (§ 368, subd. (b)(1)). The court sentenced Gilbert to the upper term of four years for caretaker theft, and a consecutive one-year term for willful cruelty to an elder, for a total term of five years. The court suspended imposition of sentence on Kircuss conviction for caretaker theft and granted him five years probation on condition that he serve 365 days in the custody of the County Sheriff.

All further statutory references are to the Penal Code unless otherwise specified.

Gilbert asserts there were instructional errors requiring reversal, and it was improper to impose consecutive terms. Kircus separately asserts there was insufficient evidence to support the jury finding that he was a caretaker within the meaning of section 368.

I

FACTUAL BACKGROUND

A. Prosecution Case

In December 2000 the victim, 87-year-old Lloyd Riggs (Lloyd), needed a new in-home care provider. Lloyds children (Al and Peggy) interviewed Gilbert for the job; Kircus (Gilberts boyfriend) was also at the interview. During the interview, Gilbert stated she was a registered nurse and Kircus stated he was a U.S. Marshal; both of those statements were later found to be false. Al and Peggy hired Gilbert to live in Lloyds home and provide care for him starting in January 2001. This arrangement lasted until March 15, 2001, when Gilbert and Kircus were arrested for the alleged offenses against Lloyd.

Initially, Gilbert was to reside in Lloyds home as his sole caretaker. However, shortly after Gilbert moved in, Kircus also moved in (with Lloyds consent) to "help out" in caring for Lloyd. Kircus took care of some care tasks, including ordering household groceries through an Internet grocer, doing laundry for Lloyd, and going to the drugstore, the bank, and the post office for Lloyd.

Although Al and Peggy were pleased with the care provided by Gilbert for the first two weeks after she moved in, they thereafter became concerned because Lloyds medical condition appeared to be deteriorating. Al and Peggy also learned Gilbert had fired Dr. Masungalia, Lloyds longtime doctor, apparently because Masungalia had refused to renew Lloyds prescriptions without a doctors visit. Gilbert reassured them that she was taking Lloyd to see a new doctor (Dr. Graham); later Al and Peggy learned Dr. Graham had never seen (or even heard of) Lloyd.

In late February, Gilbert directed the post office to forward all mail addressed to "Victoria Rachel Riggs" at Lloyds home address to a mailbox rented by Gilbert at a mailbox facility. Lloyd did not give Gilbert permission to use his last name and was not aware she was using it. After police arrested Gilbert, they searched the mailbox and found packages addressed to "Victoria Riggs" that contained goods ordered from J.C. Penney and apparently charged to a J.C. Penney credit card account in the names of Lloyd and "Victoria Riggs." Lloyd was unaware that a J. C. Penney credit account had been opened in his and "Victoria Riggs" name or that any purchases had been made from J. C. Penney.

Sometime after Gilbert was arrested, Al and Peggy received a phone call from a J. C. Penney store informing them that items ordered by "Victoria Riggs" were ready for pick-up. They informed police, who went to the store and found numerous items, including monogrammed bath towels with Kircuss initials on them, purchased with Lloyds credit account.

In February 2001 Gilbert used Lloyds Bank of America credit card without Lloyds permission to pay $5000 to Mr. Brodsky, an attorney who was representing her son in a criminal case. Lloyds credit card was also used without his permission to pay for airline tickets issued to Kircuss parents, a wire transfer of $600 payable to Kircus, a bail bondsmans charge of $150, and more than $600 in fees owed by Gilbert to a storage facility.

Brodsky testified he had a telephone conversation with Gilbert during which Gilbert claimed Lloyd, her employer, had authorized her to place the $5000 charge on Lloyds credit card. Brodsky asked to speak with Lloyd to confirm the charges were authorized. A man came to the phone, identified himself as Lloyd, and confirmed the charge could be placed on Lloyds credit card. However, Brodsky testified the voice he heard on the phone was "definitely not" the voice of an 87-year old man.

Ms. van Bibber at the storage facility received a telephone call on March 2, 2001, from a man claiming to be Lloyd. The man stated he was Gilberts father, gave Lloyds credit card number to van Bibber, and authorized van Bibber to use that credit card to pay the storage fees owed by Gilbert. Ms. van Bibber testified the man she spoke with did not appear to have the voice of an elderly man.

In mid-February 2001 Gilbert telephoned Ms. Lewis, an officer at Lloyds bank. Gilbert stated she had a check for $2500, payable to Lloyd, and wanted to negotiate the check and use the funds to purchase a cashiers check to pay off a Bank of America credit card. Lewis stated the bank could only accommodate that transaction if Lloyd came into the bank. After Lewis finished speaking to Gilbert, Lewis telephoned Al (who had a power of attorney over Lloyds account) and told Al of the conversation. Later that day, Gilbert again telephoned Lewis and expressed anger that Lewis had telephoned Al. Because Lewiss suspicions were aroused, she examined Lloyds account and noticed that many checks payable to Kircus had come through for payment. Lloyd was unaware that any checks on his account had been issued to Kircus.

Lloyd testified that, because he trusted Gilbert, he would often sign blank checks she presented for his signature.

Al began to more closely scrutinize property in Lloyds house after receiving Lewiss telephone call. In early March, Al noticed a newly purchased "nostalgia" music system at Lloyds home. When Al asked Gilbert about it, she stated she brought it from her home; in truth, Lloyds Mobil credit card had been used to buy the music system. Lloyd did not give Gilbert or Kircus permission to use his credit card to buy the music system. Also in early March, Lloyds credit card was used to purchase a big screen television set that was delivered to Lloyds home. When Lloyd noticed the television set, Gilbert told Lloyd that it came from her house in La Jolla. Al testified that when he and Peggy visited Lloyd and were told Gilbert had purchased the television set on Lloyds behalf, Al asked Lloyd how he liked his new television set, and Lloyd responded "its not my T.V.," but when Gilbert said "yes, its your T.V.," Lloyd looked startled. Lloyd did not give permission to Gilbert to use his credit card to purchase the television set.

By mid-March 2001 Al and Peggy noticed Lloyds physical condition was deteriorating; they also had misgivings about Gilbert because of the television incident and the telephone call from the bank officer. They called the police and, on March 15, 2001, police came to Lloyds home and arrested Gilbert and Kircus. In a search incident to the arrests, a credit card belonging to Lloyd was found in Kircuss wallet. Gilberts purse contained nine different identifications (including Lloyds drivers license), a blank check belonging to Lloyd and Opal Riggs (Lloyds deceased wife), and a contract signed by Gilbert, Kircus and Lloyd that appeared to have been altered.

B. The Defense

Kircus testified in his own defense that he did not represent himself to be a federal marshal and Gilbert did not represent herself to be a registered nurse. When Lloyd hired Gilbert, it was understood that both Gilbert and Kircus would live at Lloyds home but that Gilbert would be the primary caretaker. Kircus voluntarily ran errands for Lloyd without compensation and Lloyd gave Kircus his Mobil credit card to use for gas because Kircus was running errands for Lloyd using Kircuss car. Kircus never saw Lloyd sign a blank check; instead, the checks signed by Lloyd were always filled out. Kircus testified the numerous checks made payable to Kircus were either to reimburse advances he made on Lloyds behalf, or because Lloyd needed cash and therefore made checks payable to Kircus, which Kircus then cashed and returned the proceeds to Lloyd. Lloyd also bet daily on horse races, and the $600 wire transfer to Kircus was to set up an offshore account for Lloyds betting hobby.

Kircus testified that Lloyd purchased the nostalgia music system as a gift for Gilbert and Kircus. Lloyd also purchased, as a wedding present to Gilbert and Kircus, the airline tickets to fly Kircuss parents to California for Kircuss planned wedding to Gilbert. Kircus was present and overheard Lloyd authorize Brodsky to charge his fee to Lloyds credit card; this was a loan that was subject to a written repayment agreement. Gilbert told Kircus that it was Peggy who had purchased the big screen television set.

The written agreement found in Gilberts purse, which was signed by Lloyd and defendants, stated "[Gilbert] works for me. She is my nurse and she makes $1400 per month." Lloyd agreed his signature was on this document and was something he would have signed. However, the document went on to state: "She has been with me [since January] of 2001, I have made her a loan on Bank of America Card of 2,500.00, [which] she is going to make [payments] on said bank card and any other [okayed] charges by me[, Lloyd, are] to be paid by [Gilbert]. She [also uses Lloyds Mobil] Card and makes said payment on that card as well. The above has been [okayed] by me [in] February, 2001. Thanks." Lloyd testified he did not sign anything containing the italicized language; the document appeared to have been altered and the language added to the document at a later date.

II

ANALYSIS

A. The Omission of CALJIC No. 14.03

The trial court instructed the jury with CALJIC 14.05 that the charged offense of grand theft required a finding that Gilbert and Kircus obtained possession of Lloyds personal property "with the specific intent to deprive [Lloyd] permanently of his property." Gilbert argues there was evidence she used Lloyds credit cards intending to repay Lloyd for the amounts she charged, and therefore she did not have the requisite intent to permanently deprive Lloyd of his money. Accordingly, Gilbert argues, the trial court was obligated sua sponte to instruct the jury with CALJIC No. 14.03, and that omitting this instruction was not harmless beyond a reasonable doubt.

CALJIC No. 14.03, entitled "Theft Intent-Further Defined," states the "specific intent [required] [which is an element of the crime of ___] [and ___] is satisfied by either an intent to deprive an owner permanently of his or her property, or to deprive an owner temporarily, but for an unreasonable time, so as to deprive him or her of a major portion of its value or enjoyment." (CALJIC No. 14.03 (7th ed. 2003).)

A court is obligated sua sponte to instruct on general principles of law that are commonly and openly connected to the facts of the case and are necessary to the jurys understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) However, if a courts instructions correctly describe the general principles of law governing the issues of the case, a defendant who wishes any clarifying or amplifying instructions must request them. (People Estrada (1995) 11 Cal.4th 568, 574; People v. Carpenter (1997) 15 Cal.4th 312, 391-392.)

The trial courts instruction correctly recited the elements of grand theft, including the specific intent required for the offense: that the defendant took the property with the specific intent "to deprive [Lloyd] permanently of his property." (Italics added.) Although Gilbert concedes this instruction correctly describes the intent element for theft (People v. Avery (2002) 27 Cal.4th 49, 54 (Avery)), she asserts that Avery superimposed on the term "permanently" a technical, legal meaning that differs from its commonplace meaning, and this technical meaning triggered an obligation sua sponte to instruct on its technical meaning. (People v. Estrada, supra, 11 Cal.4th at pp. 574-575.) She argues that Avery, although leaving undisturbed the rule that the element of intent to permanently deprive can be satisfied in its colloquial sense of intending to forever deprive the owner of his or her property, held the intent element can also be established in a nonliteral sense when a defendant intends to deprive the owner of his or her property only temporarily but for an extended period of time that deprives the owner of a major portion of its value or enjoyment. (Avery, supra, at pp. 54-58.) She asserts that because there was some evidence she intended to repay Lloyd, and hence intended only a temporary deprivation that would not have deprived Lloyd of the value or enjoyment of his funds, the trial court was obligated sua sponte to instruct on Averys principles with CALJIC No. 14.03.

An intent to repay embezzled funds is not a defense to a theft charge. (People v. Colton (1949) 92 Cal.App.2d 704, 709-710.) However, under some circumstances, evidence that after the taking the defendant acted in a manner consistent with an intent to restore the property to the owner is admissible to support a defense that the defendant acted "consistent with a nonlarcenous intent at the time of the taking." (People v. Edwards (1992) 8 Cal.App.4th 1092, 1098-1101.) Gilberts evidence on this issue was admitted at trial, and the inferences to be drawn from this evidence as to her intent were fully explored during closing argument. Because Avery does not hold an embezzler should be acquitted if the jury finds property was taken with the intent to return it in the near future, but instead merely held that an intent to temporarily take property can under some circumstances satisfy the permanently deprive element of theft, there was no sua sponte obligation to instruct the jury with CALJIC No. 14.03.

B. The Omission of CALJIC No. 4.35

Gilbert argues the trial court was obligated sua sponte to give the mistake of fact instruction (CALJIC No. 4.35) because a defendants honest belief he was authorized to take property, even though mistaken, is a defense to a theft charge. (People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 5-11; People v. Stewart (1976) 16 Cal.3d 133, 141.) Gilbert argues that because Peggy and Al authorized Gilbert to use Lloyds credit cards and checking account to purchase new furniture to improve Lloyds living conditions, there was substantial evidence to support a jurys finding that Gilbert honestly believed she was authorized to make other purchases for Lloyd that would improve his living conditions, including the new linens from J.C. Penneys, the extravagant music system and television set, and lavish groceries. Accordingly, argues Gilbert, the court should have instructed the jury with CALJIC No. 4.35.

Even assuming the trial court should have instructed with CALJIC No. 4.35, we are convinced the omission was harmless beyond a reasonable doubt. Gilbert does not explain how her mistaken belief regarding her authority to make purchases for Lloyds benefit would have been relevant to her belief as to her use of Lloyds credit card for her personal benefit, paying for items including her sons criminal defense, airline tickets issued to Kircus parents, the wire transfer of $600 to Kircus, the bail bondsmans charge of $150, or over $ 600 in fees she owed to the storage facility. Because the jurys verdict on the theft count necessarily rejected Gilberts defense that her personal use of the credit cards was pursuant to an agreed loan-and-repayment arrangement, we are convinced beyond a reasonable doubt the jury would have convicted Gilbert of grand theft even had it been instructed to consider her subjective belief as to purchases she made on Lloyds behalf.

C. Consecutive Sentencing

Gilbert argues that there is insufficient evidence to support imposing a consecutive term for the conviction on willful cruelty to an elder (§ 368, subd. (b)(1)) in addition to the term for caretaker theft, and the former term should be stayed under section 654. Gilbert argues she had only a single intent and objective— to steal Lloyds property—and her abuse and neglect of Lloyd was to cause him to physically deteriorate and become mentally confused to facilitate her intent and objective of stealing his assets.

Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is sufficiently divisible that it gives rise to more than one act within the meaning of section 654 depends on the "intent and objective" of the actor. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Because the statute is intended "to ensure that defendant is punished `commensurate with his culpability [citation], its protection has been extended to cases in which there are several offenses committed during `a course of conduct deemed to be indivisible in time. [Citation .]" (People v. Harrison (1989) 48 Cal.3d 321, 335.) However, "[i]t is defendants intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.]" (Ibid.) If the offenses are merely incidental to one objective, the "defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]" (Ibid.) "If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct." (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)

It is for the sentencing court to determine a defendants "intent and objective" under section 654. (See People v. Coleman (1989) 48 Cal.3d 112, 162.) An implied finding that the crimes were divisible must be upheld if the evidence supports it (People v. Blake (1998) 68 Cal.App.4th 509, 512), and we therefore review the courts implicit determination of "separate intents" for sufficient evidence most favorably to the judgment, presuming in support of the courts conclusion the existence of every fact the court as trier of fact could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)

There is substantial evidence that Gilbert harbored multiple criminal objectives sufficient for purposes of separate sentences under section 654. Although Gilberts principal goal may have been to steal Lloyds funds for her own financial needs, the evidence permitted the conclusion that in committing each crime Gilbert harbored more immediate and specific objectives that need not be overlooked under a section 654 review. A trier of fact could conclude Gilbert neglected Lloyds physical well-being in violation of section 368, subdivision (b)(1), because her objective was to maximize her personal comfort by obtaining a salary (as well as her room and board) without effort or inconvenience to herself, and providing Lloyd with medical care would have detracted from her personal comfort. Because her intent and objective of living a pampered lifestyle is sufficiently distinct from the her intent and objective of using Lloyds assets to pay for her collateral financial obligations, there is substantial evidence to support consecutive sentences under section 654.

For example, Gilbert tried to renew Lloyds prescriptions by telephone and, upon learning that Dr. Masungalia would require Gilbert to go to the effort of bringing Lloyd into his office to renew these prescriptions, Gilbert simply terminated Masungalia as Lloyds doctor. Additionally, Al testified he noticed the home appeared untidy, as though little effort was being put into the home, and on one occasion he came to the house around 1:00 p.m. and Gilbert was still dressed in her nightgown. Eventually, Al became so concerned about Lloyds condition that he urged Gilbert to make an effort to get Lloyd out of bed and into an exercise routine. Additionally, Gilbert lavishly spent Lloyds money to improve the home where she lived, as well as for the steaks, wine and caviar that Gilbert and Kircus ate, further permitting the inference that one of her intents and objectives was to maximize her personal comfort, and that her neglect of Lloyds health was a by-product of her goal of living a pampered lifestyle.

D. Evidence Supporting Kircuss Conviction

Kircus separately asserts his conviction for caretaker theft from an elder exceeding $400 (§ 368, subd. (e)) is not supported by substantial evidence because the evidence does not support the finding that Kircus was a "caretaker" of Lloyd within the meaning of that statute. Section 368, subdivision (i) defines a caretaker as "any person who has the care, custody, or control of, or who stands in a position of trust with, an elder or a dependent adult." Kircus admitted Lloyd entrusted Kircus with his banking transactions, and sent Kircus "just about every other day" to do Lloyds banking, including cashing checks for Lloyd and returning the cash to him. Kircus was also entrusted with Lloyds credit cards to purchase groceries, gas and prescriptions for him. There is substantial evidence supporting the conclusion that Kircus stood in a position of trust to Lloyd within the meaning of section 368, subdivisions (e) and (i).

Although substantial evidence supports the finding Kircus was a caretaker within the meaning of section 368, subdivision (e), we note that a contrary conclusion would result only in a modification of the conviction to reflect a conviction of section 368, subdivision (d), which proscribes the same conduct as subdivision (e) except that subdivision (d) applies to a noncaretaker who knows or reasonably should know the victim is an elder or dependent adult.

DISPOSITION

The judgments are affirmed.

WE CONCUR: NARES, Acting P. J. and AARON, J.


Summaries of

People v. Gilbert

Court of Appeals of California, Fourth District, Division One.
Nov 5, 2003
No. D040245 (Cal. Ct. App. Nov. 5, 2003)
Case details for

People v. Gilbert

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. VICTORIA R. GILBERT et al.…

Court:Court of Appeals of California, Fourth District, Division One.

Date published: Nov 5, 2003

Citations

No. D040245 (Cal. Ct. App. Nov. 5, 2003)