Opinion
H044608
10-26-2018
THE PEOPLE, Plaintiff and Respondent, v. DONALD SCOTT RAINEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 16CR02833)
A jury convicted defendant Donald Scott Rainey of first degree burglary with another person present (Pen. Code, §§ 459, 667.5, subd. (c)(21)); theft from an elder (§ 368, subd. (d)); and embezzlement (§ 504a). Rainey contends on appeal that we must reverse his convictions because the offense of burglary does not extend to an entry with the intent to commit nonlarcenous theft, and because insufficient evidence supports all three counts. We reject Rainey's interpretation of the burglary statute, and we conclude sufficient evidence supports his convictions for first degree burglary and theft from an elder.
All further statutory references are to the Penal Code unless otherwise indicated.
We agree that there is insufficient evidence supporting Rainey's conviction of embezzlement as charged in count 3 and reflected on the verdict form—namely, embezzlement of property sold under a contract of purchase not yet fulfilled, in violation of section 504a. Nevertheless, we conclude that embezzlement as defined by section 503 is a lesser related offense of the type of embezzlement charged under section 504a, and we find sufficient evidence of the former. We modify the judgment of conviction for count 3 to reflect a conviction for embezzlement in violation of section 503.
I. FACTS AND PROCEDURAL BACKGROUND
Rainey was charged by complaint. Count 1, charging first degree burglary, alleged that Rainey entered Charles Ackerman's residence "with the intent to commit larceny and/or any felony," while "another person, other than an accomplice, was present in the residence" (§§ 459; 667.5, subd. (c)(21)). Count 2 alleged that Rainey "committed theft, embezzlement, fraud, and/or identity theft with respect to the property . . . of an elder" against Charles Ackerman. Count 3 charged that Rainey committed "the crime of embezzlement, in violation of Penal Code section 504a," in that he "fraudulently remove[d], conceal[ed] and/or dispose[d] of personal property of another in his . . . possession, under a contract of purchase not yet fulfilled." Rainey waived his right to a preliminary hearing, and the complaint was deemed the information. After trial, the jury returned guilty verdicts on all counts and found true the allegation. Because Rainey challenges the sufficiency of the evidence underlying his convictions, we discuss the facts elicited at his trial in some detail.
The complaint also listed Helen Ackerman, Charles Ackerman's wife, as a victim of counts 1 and 2.
While the complaint also alleged that Rainey took property worth more than $65,000 (§ 12022.6, subd. (a)(1)), this allegation was never submitted to the jury.
Charles Ackerman, a longtime coin collector, was approximately 87 years old when he received a telephone call in August 2015 from a woman who identified herself as "Delana" from Vintage World Coin. Over the course of several phone calls, Ackerman became convinced that Vintage World Coin was "a real up-and-up outfit," and he told Delana that he was interested in selling his coins. At some point, Ackerman agreed to meet with Delana's boss, Chris Roberts.
Ackerman initially identified the caller from Vintage World Coin as "Elena," but testified on cross-examination that her name was "Delana." He did not provide a last name. We refer to her as "Delana" because that is consistent with portions of Ackerman's testimony and also with Rainey's testimony identifying the woman as "Delana Fountain."
On the afternoon of September 23, 2015, Roberts and Rainey arrived at Ackerman's house in Santa Cruz in a car rented by Rainey. Roberts talked to Ackerman for about an hour. Rainey did not speak during their conversation, and Ackerman believed Rainey was Roberts's "helper." Ackerman told Roberts that he had previously been defrauded by another coin dealer in Texas when he bought coins that the dealer never sent to him before going out of business. Roberts told Ackerman that he had, in fact, bought the other dealer's customer list but not his "vault," and Roberts did not have Ackerman's coins.
Ackerman was eager for Roberts and Rainey to sell his coin collection for him; he "was ready to deal." Roberts and Ackerman agreed that Roberts and Rainey "would take the coins and sell them for [Ackerman], and . . . they would make a commission, and they would send [Ackerman] the cash." Roberts told Ackerman that he "should sit back and just collect the money." Ackerman gave Roberts a list of his coins, which included a "1915 $10 Indian [head] . . . riv[e] d'or." Rainey loaded Ackerman's boxes of coins into the rental car. Roberts indicated that Ackerman would receive a check for the coins once they had been sold. Rainey asked Ackerman whether he knew how to contact them, and Roberts replied that Ackerman had their phone number.
Neither man gave Ackerman a timeline for the sales process, although Roberts mentioned that some of the coins may need to be certified or graded. Ackerman thought he would receive the money from the sale of his coins in a couple of months. Roberts called Ackerman in early October and "told [him] to just relax; they would do the work." Ackerman began to check on the sale of his coins, leaving approximately six messages for Roberts with Delana.
Daniel Kedem was a wholesale coin dealer. On October 12, 2015, approximately three weeks after Ackerman gave Roberts and Rainey his coins to sell, Kedem received an email from Rainey listing an inventory of coins in Rainey's possession. Kedem understood that Rainey wanted him "to put prices on it [and] to buy it all." Three of the coins on Rainey's inventory list were the same kind of coins that Rainey had received from Ackerman. Kedem made a deal to purchase some coins from Rainey, including "a 1915 $10 Indian head . . . rive d'or." Kedem described the "Indian head" as "kind of unique." On October 14, 2015, Rainey received $82,000 for the coins he sold to Kedem. Part of that payment was made with a cashier's check in the amount of $40,000, which Rainey deposited into a Vintage World Coin account that he controlled. Ackerman did not receive any money from Rainey or Roberts for this sale.
On November 3, 2015—approximately three weeks after Kedem bought the coins from Rainey—Rainey called Ackerman and said that Ackerman's gold coins were being certified, which would take a few weeks. Ackerman continued to wait for his money. At some point in early December, Delana told Ackerman that she would send him an inventory of the coins they had received from him and that they were going to hold a coin show at the end of the month. That phone call in December 2015 was the last time Ackerman heard from Delana, Roberts, or Rainey, despite leaving messages for them through January 2016. Ackerman never received any money for his coins, and he never got the coins back. The parties stipulated that the coins Ackerman gave to Rainey and Roberts to sell had a value of $42,745.50.
The prosecutor called two witnesses, David Bergler and Ann Latimer, pursuant to Evidence Code section 1101, subdivision (b), as proof of Rainey's common scheme or plan. On September 21, 2015, two days before they went to Ackerman's house, Rainey and Roberts went to Bergler's home in Gresham, Oregon, to evaluate some of his coins. At Roberts's suggestion, Bergler agreed to have Rainey and Roberts sell his coins so that they could then use the sales proceeds to purchase different coins for him that would better appreciate in value. Rainey and Roberts left Bergler's home with coins worth $128,618, which was about half of Bergler's coin collection. Several of the coins were the same kind of coins that Kedem would later purchase from Rainey in October 2015.
The evidence regarding Bergler and Latimer was also admitted as proof of Rainey's identity, intent, and lack of mistake or accident.
Bergler kept in contact with Roberts over the next couple of months. One day in November 2015, Roberts called Bergler to say that he and Rainey were in town and they wanted to look at the rest of his coins. After they arrived at Bergler's house, Rainey stated that the coins they had gotten from him in October were not worth enough to cover the price of the coins they intended to purchase for his portfolio. Bergler brought out the remainder of his coin collection and, after Rainey looked through the coins, agreed that Rainey and Roberts could take those coins to sell for him, with the understanding that the sales proceeds would also be used to purchase different coins for his portfolio. Rainey and Roberts left with the additional coins, which were worth $120,625. Bergler did not receive any money from Roberts or Rainey; nor did they ever return his coins.
Bergler did receive some silver coins from Rainey and Roberts, but Bergler had not asked for these coins and was not interested in them because they were recent silver coins and Bergler collected older gold coins.
In September 2015, when Latimer was 77 years old, Rainey called her and introduced himself, stating that he had taken over a coin dealership that she had done business with in the past and that he had changed its name to Vintage World Coin. Rainey told Latimer that he was interested in seeing her coin collection and offered to meet her when he was in Northern California.
Rainey and Roberts met with Latimer on September 22, 2015—the day before they met with Ackerman—first at a restaurant and then at Latimer's home in Orinda, California. When Latimer showed Rainey and Roberts her coins, they offered to take them and have them evaluated to determine their current value. Rainey and Roberts would then send her a "proposal." Rainey and Roberts loaded Latimer's coins into the trunk of their car and left. After receiving an email and a couple of messages from Rainey, Latimer never heard from him or Roberts again. Latimer had purchased the coins for $52,500. Latimer did not get the coins back and did not receive any money for them.
Rainey testified that he owned Vintage World Coin, located in Nederland, Texas, and that he hired Roberts as a salesperson in late 2014. Delana Fountain began working as a salesperson for the company six months later. Roberts became a signatory on the business's bank account in 2015.
In mid-September 2015 while Rainey was in Los Angeles, Roberts called and asked him to attend a client meeting in Portland. Rainey met Roberts in Portland, and they arrived at Bergler's house together. While Rainey was in Portland, Delana called him and said she had arranged for them to meet with Ackerman on September 23, 2015, because Ackerman wanted to sell his coins. Rainey testified that "Delana set . . . up" the whole Ackerman deal. Ackerman's coins "were supposed to be liquidated as—and given cash." At the meeting with Ackerman, Rainey and Roberts told him that they would ship the coins back to Texas, liquidate them, and send Ackerman a check. Rainey stated that, when he put Ackerman's coins into the rental car, all he planned to do was to ship them back to the office in Texas because Delana was going to sell them. Rainey and Roberts did not make a specific offer to Ackerman about how much they would charge him to sell his coins. Rainey shipped Ackerman's, Latimer's, and Bergler's coins to Texas a few days after meeting with Ackerman.
Rainey testified that he began a romantic relationship with a woman who lived in Pennsylvania during this time, and he was in the office infrequently from the end of October 2015 through April 2016. Rainey trusted his employees to take care of the Ackerman deal; he was unaware of what happened with Ackerman's coins because his employees did not tell him. "I wasn't hands on in the office, and I wasn't paying attention." Rainey testified that he first learned that Ackerman had not gotten the money for his coins when a detective called Roberts on April 27, 2016. Rainey intended to review his coin inventory to see if he could cover Ackerman's claim, but he was arrested before he made it back to the office.
The jury heard a number of phone calls between Roberts and Rainey, made from the Santa Cruz County jail in June and July 2016, when Roberts was in custody and Rainey was out on bond. Several of the calls included discussions of how Roberts told the investigator in Santa Cruz that Rainey was not present at Ackerman's house for the meeting. Roberts told Rainey, "I don't know if you even have charges in California anymore. [¶] . . . [¶] You weren't here." Rainey answered, "Right." Roberts then said, "I've already interviewed with the detective and two different attorneys that are meeting with the DA, so they're aware you weren't here." Rainey replied, "OK." On another call, Roberts told Rainey that he had spoken with a civil attorney about filing a suit for injuries he incurred from his ankle monitor. He told Rainey that the attorneys "saw me and looked at my ankle and said I got a hell of a law suit. Um, they just paid an $8 [m]illion law suit last month. Um, so anyway I'm willing, you're my business partner, I'm willing to give you half but I need you to, I need you to take care of me." The parties stipulated that on December 7, 2016, Roberts was convicted of embezzling from Ackerman.
Consistent with Rainey's testimony, Rainey's defense at trial was that Roberts was to blame for the victims' losses. Rainey's trial counsel argued, "[I]t's plain that Mr. Roberts was the mover and shaker here." "Mr. Rainey wasn't paying attention, and he trusted his office to take care of business, and they were plainly not taking care of business, and it appears that people were hurt by that." Characterizing Rainey as a "doofus," defense counsel told the jury, "There is no jury instruction that says if it's Mr. Rainey's business, he's responsible for everything that Mr. Roberts does."
The jury found Rainey guilty of the three charges and determined that a person other than an accomplice was present in the residence during the burglary. The trial court stated at Rainey's sentencing, "These people were very . . . vulnerable. Mr. Ackerman had a very sharp mind, but he barely could walk. . . . And I was amazed at how sharp his mind is, but he was taken by a con man." Referring to the Ackermans, the trial court observed: "They believed this man was going to come help them, and they invited him into the house, invited him to enter without knowing that at the time he entered he had the intent to rip them off, but he clearly did." The trial court sentenced Rainey to the upper term of six years for the burglary conviction and imposed concurrent three-year terms for his convictions of elder theft and embezzlement, which the court stayed pursuant to section 654.
II. DISCUSSION
Rainey asserts that his burglary conviction must be reversed because the burglary statute does not encompass an entry with the intent to embezzle, and that all three of his convictions must be reversed because they are not supported by sufficient evidence. We discuss each claim in turn.
A. Burglary: Entry with Intent to Commit Nonlarcenous Felony Theft
Section 459 provides that "[e]very person who enters any house . . . with intent to commit grand or petit larceny or any felony is guilty of burglary." Rainey contends that the crime of burglary does not include an entry with the intent to commit nonlarcenous theft, such as embezzlement. Rainey asserts that "[t]he plain language of the [burglary] statute prohibits entry with the intent to commit larceny," and " 'larceny requires a trespassory taking, which is a taking without the property owner's consent.' " Rainey argues that, because the text of section 459 specifically mentions "grand larceny," its reference to "any felony" must implicitly exclude all theft felonies other than larcenous thefts because otherwise the reference to "grand larceny" is surplusage. Moreover, Rainey states that the reference to "larceny" in the burglary statute is limited to the common law theft offense of larceny, rather than encompassing all common law theft offenses. Finally, Rainey contends that the policy consideration that animates the burglary statute—namely, a concern for personal safety—does not arise when a person voluntarily invites a wrongdoer into his or her home.
Whether section 459 encompasses an entry with the intent to commit nonlarcenous felony theft is a question of statutory interpretation subject to de novo review. (See People v. Garcia (2016) 62 Cal.4th 1116, 1122.) We conclude that Rainey's arguments run aground both on the text of section 459 and on case law interpreting the provision.
In support of his argument that the burglary statute reaches only larceny among the theft crimes, Rainey relies primarily on Justice Chin's dissenting opinion in People v. Gonzales (2017) 2 Cal.5th 858, 877-884 (Gonzales) (dis. opn. of Chin, J.). In Gonzales, the California Supreme Court addressed the Safe Neighborhoods and Schools Act (the Act). The Act created a new misdemeanor offense of shoplifting that targets conduct that previously could have been characterized as felony second degree burglary, in violation of section 459. (Gonzales, supra, at pp. 863-864.) In reaching its conclusion that the Act's definition of misdemeanor shoplifting encompassed the defendant's conduct, the Gonzales court reviewed the common law history of theft offenses, California's consolidation of multiple common law theft offenses in 1927 into a single provision, and the reference to "larceny" in section 459. In its analysis, the court relied upon the text of section 490a (enacted as part of the 1927 consolidation), which states, "Wherever any law or statute of this state refers to or mentions larceny, embezzlement, or stealing, said law or statute shall hereafter be read and interpreted as if the word 'theft' were substituted therefor." (§ 490a.) In its discussion of section 490a and subsequent case law, the court appeared to conclude that the reference to "larceny" in the burglary statute includes all of the common law theft offenses, not just larceny. (Gonzales, supra, at pp. 866-869.)
Justice Chin disagreed with this reading of the burglary statute. "When the Legislature used the common law word 'larceny' in 1872 in defining burglary, it meant larceny, not embezzlement and not false pretenses. In 1927, when the Legislature changed the law of theft, it did not also, sub silentio, change the law of burglary." (Gonzales, supra, 2 Cal.5th at p. 883 (dis. opn. of Chin, J.).) Seizing on Justice Chin's dissent in Gonzales, Rainey argues that the use of the word "larceny" in the burglary statute implicitly excludes all other types of theft from section 459.
"[D]issenting opinions are not binding precedent." (People v. Lopez (2012) 55 Cal.4th 569, 585.) Further, the California Supreme Court and the Courts of Appeal have repeatedly stated that the burglary statute encompasses nonlarcenous thefts. For example, in People v. Parson (2008) 44 Cal.4th 332, 354, the California Supreme Court "reject[ed] the [defendant's] contention that [he] could not have been found guilty of burglary (or burglary murder) for merely intending to 'con' [the victim] out of money" because "[a]n intent to commit theft by a false pretense or a false promise without the intent to perform will support a burglary conviction." (See also People v. Williams (2013) 57 Cal.4th 776, 789, fn. 4 [observing that "if a defendant enters a store with the intent to commit theft by false pretenses . . . , and if that defendant, while fleeing, kills a store employee, that defendant can be convicted of felony-murder burglary"].) Courts of Appeal have similarly held that "the term 'larceny' as used in the burglary statute should be read to include all thefts." (People v. Nguyen (1995) 40 Cal.App.4th 28, 31; see also, e.g., People v. Dingle (1985) 174 Cal.App.3d 21, 30.)
The reference in section 459 to "any felony" confirms that courts need not rely on the complex history of theft crimes in California to conclude that section 459 encompasses nonlarcenous felony thefts. (See People v. Salemme (1992) 2 Cal.App.4th 777-778 [upholding burglary conviction where a defendant entered the victim's home for the purpose of selling fraudulent securities after concluding "a person who enters a structure enumerated in Penal Code section 459 with the intent to commit any felony is guilty of burglary except when he or she (1) has an unconditional possessory right to enter as the occupant of that structure or (2) is invited in by the occupant who knows of and endorses the entrant's felonious intent"]; People v. Kwok (1998) 63 Cal.App.4th 1236, 1245 (Kwok) ["Where the facts and circumstances of a particular case and the conduct of the defendant reasonably indicate his purpose in entering the premises is to commit larceny or any felony, the conviction may not be disturbed on appeal" (italics added)].) Rainey has not cited any cases that hold that the phrase "any felony" in section 459 excludes nonlarcenous felony theft crimes, and we are not persuaded by his argument in support of such a reading.
There is no question that Rainey's conduct constituted a felony rather than a misdemeanor, since the stipulated value of the stolen property was $42,745.50. Indeed, Rainey's own trial counsel correctly described the law when he told the jury that "most of us forget ourselves and understand burglary as breaking into someone's home without their permission, and that is actually not the definition. It's entering someone's home with a felonious intent, an intent to steal or commit some other felony, and the crime itself is the act of entry with that bad idea."
We agree with Rainey that " '[b]urglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence.' " (People v. Gauze (1975) 15 Cal.3d 709, 715.) But we do not find that this recognition demonstrates a legislative intent to exempt an entry with the intent to commit nonlarcenous theft from the offense of burglary.
Rainey's argument for a limited reading of burglary has been raised before and rejected. Dual purposes underlie the burglary laws. (People v. Montoya (1994) 7 Cal.4th 1027, 1043.) In addition to protecting personal safety, the burglary statutes equally guard against an invasion of a possessory right. (Ibid.) Nor has Rainey brought our attention to a case that holds that a burglary conviction is proper only if the entry endangered the victim. Moreover, this case—involving an elderly victim who had difficulty walking and who invited two younger men into his home and showed them property worth thousands of dollars—is a poor vehicle to argue that burglaries involving nonlarcenous crimes do not pose any potential dangers to their victims.
In sum, because it is consistent with the provision's text and case law and not inconsistent with its animating purpose, we conclude that section 459 includes an entry to commit any felony "theft," whether that be by an unlawful taking or embezzlement.
By its reference to "petit larceny," section 459 also reaches some misdemeanor theft crimes. (People v. Martinez (2002) 95 Cal.App.4th 581, 584 [entry with intent to take shower and thereby to use soap, shampoo, and water sufficient to constitute burglary].) The scope of the section's application to misdemeanor crimes, however, is not raised in this appeal, and we do not address it.
B. Rainey's Sufficiency-of-Evidence Challenges
Rainey challenges his convictions of counts 1, 2, and 3, arguing the jury heard insufficient evidence to convict on each. "When reviewing the sufficiency of evidence to support a criminal conviction, we ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] We view the whole record in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence to determine whether the record discloses substantial evidence. [Citations.] 'Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.' [Citation.]" (Kwok, supra, 63 Cal.App.4th at p. 1245.) We discuss each conviction separately.
1. First Degree Burglary
Rainey contends that his burglary conviction must be reversed because there was insufficient evidence that he entered Ackerman's home with the intent to commit theft. In particular, Rainey argues that the jury heard insufficient evidence that he entered the house with intent to commit theft by larceny (that is, taking Ackerman's coins without Ackerman's permission) or theft by embezzlement under a contract of purchase not yet fulfilled, the type of embezzlement proscribed by section 504a and charged in count 3 of the information. We affirm the conviction based on the substantial evidence in the record that Rainey entered Ackerman's home intending to commit theft by embezzlement, as it is described in section 503, which sets out the crime's general definition. Reaching this conclusion requires a consideration of the types of theft that were—and were not—included in the jury instructions to determine whether sufficient evidence supports the crimes they referenced.
The instruction given to the jury on burglary instructed jurors that, to convict Rainey of this crime, the People had to prove beyond a reasonable doubt that, when Rainey entered the building, "he intended to commit theft." It also directed the jury, "[T]o decide whether the defendant intended to commit theft, please refer to the separate instructions that I will give you on those crimes."
Rainey does not assert that the trial court's instruction on burglary was erroneous, nor does he claim inadequate notice of the charges against him.
The jury received three theft-related instructions: theft defined (CALCRIM No. 1800); theft by embezzlement (CALCRIM No. 1806); and theft from an elder or dependent adult (CALCRIM No. 1807). Among other elements, CALCRIM No. 1800 defining theft stated, "A person commits theft when he [¶] . . . [¶] takes the property without the owner's consent. . . ." The embezzlement instruction was taken from CALCRIM No. 1806, which is the pattern instruction on embezzlement. The instruction given to the jury on theft from an elder or dependent adult did not independently define a theft crime but, instead, required, among other elements, that the prosecution prove that the defendant "committed theft or embezzlement." Rainey did not object to the wording of any of these instructions.
CALCRIM No. 1806 was modified to insert a statutory reference to section 504a. However, CALCRIM No. 1806 does not include all of the elements of the crime proscribed by section 504a, and the instruction was not modified to include those elements. We discuss this issue in part II(B)(3), post. There is no information in the record clarifying why the trial court gave the pattern instruction for section 503, omitted the key statutory element of section 504a, but nonetheless substituted the number "504a" for "503" in the jury instruction.
The instruction defining theft given to Rainey's jury described the common law crime of larceny. "Larceny 'is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away.' " (People v. Vidana (2016) 1 Cal.5th 632, 639 (Vidana).) To constitute larceny, the taking must be " 'trespassory,' " "which is a taking without the property owner's consent." (People v. Williams (2013) 57 Cal.4th 776, 788.)
We agree with Rainey that there is not substantial evidence to support a determination that he entered Ackerman's residence with the intent to commit theft by larceny as the offense is generally defined and as reflected in CALCRIM No. 1800. In particular, there was no evidence of the second element of the crime, that Rainey "[took] the property without the owner's consent." The only evidence presented at trial was that Ackerman consented to Roberts and Rainey driving away with his coins.
Embezzlement, the other theory of theft on which the jury was instructed, is "the fraudulent appropriation of property by a person to whom it has been intrusted." (§ 503; Vidana, supra, 1 Cal.5th at p. 639.) Although the Penal Code contains a number of statutes proscribing specific types of embezzlement, "[e]mbezzlement is covered generally by [section] 503." (2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Property, § 29, p. 53.) For the reasons set forth below, we determine that a reasonable trier of fact could have found beyond a reasonable doubt that Rainey entered Ackerman's home with the intent to embezzle Ackerman's coins, as that crime is defined in section 503.
"Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence. [Citations.] Whether the entry was accompanied by the requisite intent is a question of fact . . . . [Citation.] 'Where the facts and circumstances of a particular case and the conduct of the defendant reasonably indicate his purpose in entering the premises is to commit larceny or any felony, the conviction may not be disturbed on appeal.' " (Kwok, supra, 63 Cal.App.4th at p. 1245.)
A reasonable jury could infer that Rainey and Roberts targeted Ackerman generally because of Ackerman's age and specifically because they knew that Ackerman was vulnerable to fraud. The jury heard evidence that Roberts got Ackerman's name from a customer list he bought from a dealer who had previously defrauded Ackerman. Approximately one month before Rainey entered Ackerman's home, Rainey's associate Delana established a rapport with Ackerman over the course of several phone calls. Ackerman agreed to meet with Roberts, and Rainey and Roberts arrived at his home in a car rented by Rainey. After meeting for about an hour, it was agreed that Rainey and Roberts would take Ackerman's coins, worth over $42,000, sell them, and send him the sales proceeds, less a commission. Rainey loaded Ackerman's coins into his rental car and left with them. Less than three weeks later, Rainey emailed Kedem a list of his coin inventory, which included three of the same kinds of coins that Rainey had received from Ackerman. Two days later, Kedem purchased $82,000 in coins from Rainey. One of the coins purchased was a "unique," gold, "1915 $10 Indian head . . . rive d'or"—the same type of coin that Ackerman owned. That same day, Rainey deposited a $40,000 cashier's check into a bank account that he controlled. Rainey gave none of this money to Ackerman.
Over the next few months, Ackerman repeatedly called Vintage World Coin requesting updates on the progress of the sale of his coins. Most of his calls went unanswered. Rainey never informed Ackerman that he had sold any of his coins. To the contrary, Rainey told Ackerman that his gold coins were still being certified. The last information Ackerman received from anyone at Vintage World Coin was that they were holding a coin show at the end of December 2015.
The evidence also established that, within a two-day period of his meeting with Ackerman in Santa Cruz, Rainey made similar agreements with two other coin collectors, Bergler and Latimer. His promises to those individuals went similarly unfulfilled. Bergler lost coins worth $250,000. Latimer, who, like Ackerman, was over seventy-five years old, lost coins worth $52,000.
Rainey's defense at trial was that Roberts was responsible for the victims' losses. The jury rejected that defense, and they had ample reason to do so. Rainey was present during all of the meetings with Ackerman, Bergler, and Latimer. Rainey carried Ackerman's coins to a car that he had rented. Rainey shipped Ackerman's coins to Texas. Rainey reached out to Kedem to sell some of Ackerman's and Bergler's coins. Rainey deposited the $40,000 cashier's check into his account the same day that he received the check from Kedem. Rainey called Ackerman to tell him (falsely) that his coins were being certified. The jail calls show an agreement between Roberts and Rainey for Roberts to lie to the Santa Cruz investigators by telling them that Rainey was not present at Ackerman's house. Roberts told Rainey, "[Y]ou're my business partner." The trial judge, who presided over the trial, observed at sentencing that, when Rainey entered Ackerman's house, Rainey "clearly" "had the intent to rip them off."
Rainey does not argue that there was insufficient evidence presented at his trial that he entered Ackerman's residence with the intent to commit the offense of embezzlement as it is generally defined under section 503. Instead, he maintains that there was not substantial evidence that he entered Ackerman's residence with the intent to embezzle Ackerman's coins subject to a contract of purchase not yet fulfilled, which is the specific type of embezzlement codified in section 504a. Rainey correctly observes that there was no evidence of a sales contract between Rainey and Ackerman, but he fails to establish why such proof forms a necessary element of his burglary conviction.
That provision states, "Every person who shall fraudulently remove, conceal or dispose of any goods, chattels or effects, leased or let to him by any instrument in writing, or any personal property or effects of another in his possession, under a contract of purchase not yet fulfilled, and any person in possession of such goods, chattels, or effects knowing them to be subject to such lease or contract of purchase who shall so remove, conceal or dispose of the same with intent to injure or defraud the lessor or owner thereof, is guilty of embezzlement." (§ 504a.)
We recognize that count 3 of the information charged a violation of section 504a, pertaining to a contract of purchase not yet fulfilled, and that the trial court's jury instruction on theft by embezzlement referenced section 504a in its title and in its first paragraph, which stated that Rainey had been "charged . . . with . . . embezzlement in violation of Penal Code section 504a." Apart from these references to the number "504a," however, there was no mention of the distinctive element of embezzlement under section 504a—a contract of purchase not yet fulfilled—in any aspect of the trial, including in any jury instructions. Moreover, with respect to the first degree burglary charge in count 1, Rainey was charged with entering Ackerman's residence "with the intent to commit larceny and/or any felony."
The text of the embezzlement instruction given at Rainey's trial was taken from the pattern instruction on embezzlement, CALCRIM No. 1806. It informed the jury of the elements of embezzlement in violation of section 503 by instructing that the People had to prove that Ackerman entrusted his property to Rainey because he trusted him and that Rainey fraudulently converted the property for his own benefit, intending to deprive Ackerman of its use. (See Vidana, supra, 1 Cal.5th at p. 639; People v. Riley (1963) 217 Cal.App.2d 11, 17 [listing elements of embezzlement].) Rainey does not challenge the embezzlement instruction given at his trial, and there is no question that Rainey's embezzlement constituted a felony given the value of Ackerman's coins. As the burglary statute merely requires proof of intent to commit "any felony," and as the jury was instructed on the elements of general embezzlement, we see no reason why the prosecution should have been obligated to prove that Rainey intended a particular type of embezzlement when he entered Ackerman's home.
We conclude substantial evidence supports the jury's determination that, when Rainey entered Charles Ackerman's house, he did so with the intent to commit theft by embezzlement of Ackerman's property. We also agree with Rainey that there was not substantial evidence that he intended to commit theft by larceny. When, as here, a charge is presented to the jury based on alternate theories of guilt, one of which is factually insufficient, reversal is not required as long as "a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton); see also Griffin v. United States (1991) 502 U.S. 46, 49 (Griffin).) As we explained above, there is substantial evidence that Rainey entered Ackerman's residence with the intent to commit theft by embezzlement, which constituted a valid basis for the verdict. The prosecutor argued that Rainey entered Ackerman's home with "the intent to fraudulently appropriate th[e] coins for [his] own use," and the jury separately convicted Rainey of embezzlement. These factors confirm that the verdict rested on a valid ground, and we have found no "affirmative indication in the record" otherwise. (Guiton, supra, at p. 1129.) Accordingly, we conclude that Rainey's first degree burglary conviction is supported by substantial evidence.
2. Theft from an Elder
Raising similar arguments, Rainey contends that his conviction of theft from an elder must be reversed because there is not substantial evidence that he intended to or did commit theft by larceny or theft by embezzlement against Ackerman. Rainey argues that "his conviction for elder theft (count 2) relied on the same theft and the same embezzlement instruction as the burglary count" and his "elder theft conviction must also be reversed because there was no substantial evidence Rainey either intended those crimes or committed them." We conclude otherwise.
Rainey was convicted of violating section 368, subdivision (d), which separately penalizes "[a]ny person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5 proscribing identity theft, with respect to the property or personal identifying information of an elder . . . , and who knows or reasonably should know that the victim is an elder or a dependent adult." The statute defines "elder" as "any person who is 65 years of age or older." (§ 368, subd. (g).) Here, there was substantial evidence that Rainey embezzled from Ackerman, when he knew or reasonably should have known Ackerman was an elder.
Our resolution of Rainey's evidentiary challenge to count 1 also dictates our rejection of his challenge to count 2. We agree that there was no evidence of theft by larceny. However, as described in our analysis of the burglary count, we reject Rainey's contention that the element of elder theft referencing embezzlement "required a violation of Penal Code 504a." Just as the burglary count required only evidence of an intent to commit embezzlement, so, too, the elder theft count required only evidence of embezzlement as it is generally defined in section 503. " '[T]o constitute embezzlement [under section 503], the [victim's] property must be appropriated or converted with the intent . . . to deprive.' " (People v. Kronemyer (1987) 189 Cal.App.3d 314, 361, overruled on another ground in People v. Whitmer (2014) 59 Cal.4th 733, 742.) "[T]he gist of th[e] offense is the appropriation to one's own use of property delivered for devotion to a particular purpose other than one's own enjoyment of it." (People v. Kagan (1968) 264 Cal.App.2d 648, 659.)
For largely the same reasons that a reasonable jury could conclude that, when he entered Ackerman's house Rainey intended to commit embezzlement, substantial evidence supported the jury's conclusion that Rainey actually embezzled Ackerman's coins. Ackerman handed his coins over to Rainey because he trusted Rainey to sell the coins for him. Rainey sold at least some of Ackerman's coins to Kedem, pocketed the money he received from Kedem, lied to Ackerman about the status of his coins, and never returned any money or coins to Ackerman. Moreover, the jury heard, as evidence of a common scheme, that Rainey embezzled the coins of two other people, one of whom was also elderly, in the same time period.
Just as with count 1, in light of the valid basis for the elder theft charge—namely, theft by embezzlement—reversal is not required because there is no affirmative indication in the record that the verdict actually rested on the legally inadequate theory of larceny. (See Guiton, supra, 4 Cal.4th at p. 1129; Griffin, supra, 502 U.S. at p. 49.)
3. Embezzlement
Finally, Rainey contends that his conviction of embezzlement pursuant to section 504a must be reversed because "there was no evidence of the necessary contract of purchase." We agree that there is not substantial evidence to support Rainey's conviction of section 504a. However, we conclude that, with Rainey's implicit consent, the jury was instructed on the lesser related offense of embezzlement as proscribed by section 503, and substantial evidence supports his conviction of that offense.
a. Insufficient Evidence of Embezzlement in Violation of Section 504a
Section 504a provides, in pertinent part: "Every person who shall fraudulently remove, conceal or dispose of any goods, chattels or effects, leased or let to him by any instrument in writing, or any personal property or effects of another in his possession, under a contract of purchase not yet fulfilled . . . is guilty of embezzlement." A conviction under section 504a typically involves a defendant who conditionally purchases a good by making a down payment and signing a sales contract to pay the remaining cost, and who then fraudulently conceals or sells the product without fulfilling the terms of the contract. (See, e.g., People v. Eddington (1962) 201 Cal.App.2d 574, 575, 578-579; People v. Swenson (1954) 127 Cal.App.2d 658, 661, 664-665.) Rainey's jury heard no evidence that Rainey was in possession of Ackerman's coins pursuant to a conditional sales contract or any other "contract of purchase not yet fulfilled." (§ 504a.) The prosecutor argued to the jury that Rainey and Roberts left Ackerman's house with the coins but "without a contract." In the absence of any evidence of a "contract of purchase not yet fulfilled," we agree with Rainey that substantial evidence does not support his conviction of section 504a.
b. The Related Offense of Embezzlement Under Section 503
The information charged Rainey in count 3 with embezzlement in violation of "section 504a," and alleged that Rainey "did fraudulently remove, conceal and/or dispose of personal property of another in his/her possession, under a contract of purchase not yet fulfilled." The verdict states that the jury found Rainey guilty of "EMBEZZLEMENT, a FELONY, in violation of Penal Code section 504(A) [sic], as charged in Count 3." In addition, the abstract of judgment reflects that Rainey was convicted in count 3 of "PC 504A." However, the jury was never instructed on section 504a. Our review of the record reveals no mention by either trial counsel or the trial court of the distinctive element of section 504a—namely, a contract of purchase not yet fulfilled. Instead, all discussions of embezzlement in the trial record (other than mere use of the number "504a") pertain to the crime of embezzlement as defined in section 503. Consistent with this record, the trial court instructed the jury on the offense of embezzlement as proscribed by section 503, which prohibits "the fraudulent appropriation of property by a person to whom it has been intrusted." (§ 503.) Rainey made no objection to the embezzlement instruction and never claimed lack of notice when the jury followed the court's instructions and found him guilty of count 3.
Section 504 proscribes a different type of embezzlement from that prohibited under section 504a. Section 504 states in full: "Every officer of this state, or of any county, city, city and county, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of that officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of that person's trust, any property in his or her possession or under his or her control by virtue of that trust, or secretes it with a fraudulent intent to appropriate it to that use or purpose, is guilty of embezzlement." Moreover, section 504 does not have a subdivision (a).
Although the jury instruction on count 3 stated in its title and in its introductory paragraph that the instruction pertained to section 504a, the substance of the instruction included only the elements of embezzlement as proscribed by section 503. The trial court told the jury that "the People [had to] prove that: [¶] 1. An owner entrusted his property to the defendant; [¶] 2. The owner did so because he trusted the defendant; [¶] 3. The defendant fraudulently converted that property for his own benefit; AND [¶] 4. When the defendant converted the property, he intended to deprive the owner of its use." --------
In light of Rainey's failure to object to the embezzlement instruction given at his trial, whether we must affirm Rainey's conviction on count 3 based on our determination that the jury heard sufficient evidence of section 503 embezzlement but insufficient evidence of section 504a embezzlement depends on the legal relationship between the two provisions. We conclude that, given the elements of the two crimes and Rainey's course of conduct, section 503 is a lesser related offense of section 504a.
"If a lesser offense shares some common elements with the greater offense, or if it arises out of the same criminal course of conduct as the greater offense, but it has one or more elements that are not elements of the greater offense as alleged, then it is a lesser related offense, not a necessarily included offense." (People v. Hicks (2017) 4 Cal.5th 203, 209.) Section 503 is not a lesser included offense of section 504a because section 504a (the greater offense) does not include all of the elements of section 503 (the lesser offense). (See People v. Birks (1998) 19 Cal.4th 108, 117.) Unlike section 504a, the type of embezzlement proscribed by section 503 "requires the existence of a 'relation of trust and confidence,' similar to a fiduciary relationship, between the victim and the perpetrator." (People v. Wooten (1996) 44 Cal.App.4th 1834, 1845.) Section 504a, by contrast, does not require a "relation of trust and confidence," but instead mandates that the perpetrator be a conditional buyer or lessee of personal property "by any instrument in writing" or "under a contract of purchase not yet fulfilled." (§ 504a.) We do not believe that a conditional buyer necessarily is in a relationship of "trust and confidence" with a seller. (See People v. Dougherty (1904) 143 Cal. 593, 595 [stating that "embezzlement . . . is the fraudulent appropriation of property intrusted to an agent" and a purchaser who fails to pay a seller has not committed the crime of embezzlement but instead is simply a "debtor"]; see also 2 Witkin & Epstein, Cal. Criminal Law, supra, § 31, p.55 ["Modern statutes enlarge the class of embezzlers to include persons whose fiduciary relationship is less obvious, e.g., conditional buyers and lessees"].) For this reason, we are not persuaded that section 503 is a lesser included offense of section 504a. Rather than constituting a lesser included offense, section 503 shares some common elements with section 504a and its violation here arose out of the same criminal course of conduct as the crime charged in count 3, rendering it a lesser related offense.
Through its guilty verdict based on the trial court's instructions, the jury necessarily determined that the elements of section 503 were met here, and, as detailed in our discussion of the sufficiency of the evidence for counts 1 and 2, we find there was substantial evidence presented at trial supporting its conclusion. (See II(B)(1)-(2), ante.) Rainey agrees that section 503 is not a lesser included offense of section 504a but asserts that the judgment on count 3 cannot be modified. However, "when a lesser related offense is submitted to the jury without objection, the defendant must be regarded as having impliedly consented to the jury's consideration of the offense, and . . . absent other reversible error the judgment of conviction should be affirmed." (People v. Toro (1989) 47 Cal.3d 966, 970 (Toro), overruled on another point in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) In Toro, the defendant did not object to the instruction of the jury on a lesser related offense. (Id. at pp. 977-978.) The California Supreme Court held that "this failure to object constituted an implied consent to the jury's consideration of the lesser related offense and a waiver of any objection based on lack of notice." (Id. at p. 978, fn. omitted.) Rainey implicitly agreed to the trial court's instruction on the lesser related offense of section 503 when he did not object to the instruction despite ample opportunity to do so during the conference on jury instructions, where the parties reviewed the embezzlement instruction in detail with the court. (See id. at pp. 974, 977-978.)
With Rainey's implicit consent, the trial court instructed the jury on the offense of embezzlement as proscribed by section 503; the jury found Rainey guilty of embezzlement under those instructions; and there is substantial evidence to support Rainey's conviction of that offense. Toro instructs that, under these circumstances, a reviewing court should affirm the defendant's conviction of the lesser related offense. (Toro, supra, 47 Cal.3d at pp. 977-978.) Moreover, the punishment for section 503 is identical to the punishment for section 504a (see § 514), and the punishment on count 3 was stayed pursuant to section 654. For these reasons, we order the trial court to modify the judgment on count 3 to reflect a conviction of section 503 rather than section 504a. (See People v. Baca (1966) 247 Cal.App.2d 487, 491-492, 497; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1324.)
III. DISPOSITION
The judgment is modified as follows: In count 3, Rainey's conviction of embezzlement in violation of Penal Code section 504a is modified to state a conviction of embezzlement in violation of Penal Code section 503. Consistent with the trial court's original sentence on count 3, the three-year term for count 3 is stayed pursuant to section 654. The trial court is ordered to prepare an amended abstract of judgment to reflect the modification to count 3 and to forward a copy to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.