Opinion
F049567
5-30-2007
THE PEOPLE, Plaintiff and Respondent, v. BEVERLY ANN TERRY, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted appellant Beverly Ann Terry of embezzlement. She contends she was denied due process because the trial court failed to instruct the jury fully on the defense of claim of right. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Terry was employed as the office manager for J2 Engineering from December 18, 2000, through November 26, 2002. She was given check signing authority around April 2001, and added to her duties was the specific responsibility to pay company bills and purchase company office supplies. As a general rule, company expenses were paid by check or company credit card.
In November 2002, Terry went out of state for a one-week vacation. During her absence, another employee, Naomi Tan, filled in for Terry. Tan noticed a company check written to a masseuse. She looked through the check register and found about 10 payments from company funds had been made to the masseuse over a six-month time period. Tan checked with the owner, Jim Flynn, who knew of no reason why the company would be paying a masseuse.
Shortly after Terry returned from her trip, she got into an argument with Tan and quit her job. Tan, along with a new bookkeeper, then followed the companys year-end procedures regarding payment of expenses. During this process, Tan discovered that 11 payments had been made to Retailers National Bank on a Target charge card, although the company had no such card.
Further investigation revealed that Terry had paid personal automobile insurance, car payments, telephone bills, credit card accounts, and other personal expenses with company checks. The payments had been coded and recorded as legitimate company expenses under various account headings.
When initially questioned by police, Terry stated that the personal payments were simply a mistake. She also claimed that she did not know how to enter account headings properly.
In March 2004, Terry was charged with embezzlement. In May 2004, Terry agreed to plead guilty in exchange for an indicated sentence. On August 16, 2004, Terry appeared at sentencing after having sent a letter to the trial court claiming she was innocent. The sentencing was continued to August 2004, when Terry was allowed to withdraw her guilty plea and a not guilty plea was entered.
At trial Terry claimed that no one ever told her not to pay for company expenses on her personal credit card. She stated that payments to personal accounts of hers had been reimbursement for office expenses. Terry also testified that she had spoken to Flynn about her financial troubles and that he had offered to pay for the massage treatments, to assist with car and computer payments, and had told her she could cut herself a $2,500 check from company funds.
Terry was found guilty of the embezzlement charge. She was placed on formal probation for a period of three years.
DISCUSSION
Terry contends the trial court violated her due process right by failing to issue full and complete instructions to the jury on her claim-of-right defense. We are not persuaded.
Embezzlement is defined as the "fraudulent appropriation of property by a person to whom it has been intrusted." (Pen. Code, § 503.) Section 511 codifies the claim-of-right defense and provides in relevant part that "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." When a claim-of-right defense is supported by the evidence, the trial court must instruct sua sponte on the defense. (People v. Creath (1995) 31 Cal.App.4th 312, 319.)
A bona fide belief of a claim of right, even if mistaken, is sufficient to negate the felonious intent element of embezzlement. (People v. Romo (1990) 220 Cal.App.3d 514, 517.) If an individual honestly believes that he or she is authorized to take and use property, the fraudulent intent element of embezzlement is absent. (People v. Stewart (1976) 16 Cal.3d 133, 139.)
Terrys defense at trial was that she honestly believed she had a right to the funds she was accused of embezzling. She requested the jury be instructed with two special instructions regarding her claim-of-right defense. The trial court issued both instructions, which read: "It is a defense to the charge of embezzlement if the defendant was under the belief that she was acting within the scope of her authority" and "Lack of concealment may be considered by you as evidence of a good faith belief that the defendant was acting within the scope of her authority and as evidence of lack of fraudulent intent." Terry now maintains the instructions were incomplete because they did not include the "mistaken or unreasonable" good faith belief language now contained in Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 1863.
During trial the trial court had a chambers conference regarding jury instructions. Counsel and the court then discussed instructions on the record. Prior to identifying each instruction that would be issued, the trial court notified counsel that "if you [have] a particular objection or argument, please speak up as I go through each one." There was no comment from the defense. After identifying all the instructions the trial court intended to give to the jury, including the special instructions requested by the defense, the trial court asked counsel if there were "[a]ny other comments on those." Defense counsel affirmatively responded that the defense had "[n]othing" to add.
If a defendant believes the instructions are incomplete or unclear, he or she has a duty to request clarifying language. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.) This principle should apply, especially when a trial court has been asked to issue special instructions on a defense that the defendant claims to be relying upon and those special instructions have been proffered by the defendant. (See People v. McPeters (1992) 2 Cal.4th 1148, 1191 & fn. 2 [trial court has no sua sponte duty to instruct in a manner contrary to defendants request and an appellate attack is barred by the doctrine of invited error].)
But, Terry claims, the sua sponte duty of the trial court to instruct a jury properly overcomes the failure of defense counsel to object. Assuming that is so, any error is harmless.
The evidence established that Terry did not "openly and avowedly" appropriate funds from J2 Engineering as required by section 511 in order to establish a defense of claim of right. (§ 511.) Terry wrote checks to her creditors and for her personal expenses, but recorded the expenditures as legitimate company expenses in an obvious attempt to conceal her activities. For example, payment of Terrys personal telephone bill was recorded as office phones; payments on her Universal credit card were recorded as company dues and subscriptions; payments on her personal Capitol One credit card were recorded as office supplies or as payments to other legitimate company vendors; multiple payments on Terrys personal auto loan from Fireside Thrift were recorded as payments to other company vendors; and checks were recorded as issued to Dell Catalogue Sales for company supplies, when they were issued to Terrys creditors.
Additionally, when initially questioned, Terry maintained that payment of her personal expenses from company accounts was a mistake; no claim of right was asserted. Later, during the trial, Terry testified that many of the payments on her personal accounts were reimbursements to her for office supplies she had purchased or that the payments had been authorized by the owner, Flynn. These latter statements are consistent with the language of the special instructions that she believed she was "acting within the scope of her authority" in making the challenged payments.
We think the standard instructions given, together with the special instructions Terry requested, amply educated the jury concerning the defense Terry presented. We conclude Terrys claim of prejudicial instructional error is unfounded.
DISPOSITION
The judgment is affirmed.
We concur:
WISEMAN, Acting P.J.
DAWSON, J. --------------- Notes: All further statutory references are to the Penal Code unless otherwise specified.