Opinion
D069152
10-25-2017
THE PEOPLE, Plaintiff and Respondent, v. KARL ERIC WINCHELL, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD259043) APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed as modified and remanded with directions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Karl Eric Winchell on nine counts of embezzlement (Pen. Code, § 506) and one count of grand theft (§ 487, subd. (a)). The jury found true a sentencing allegation that Winchell had engaged in a pattern of related conduct involving a loss of over $100,000. (§ 186.11, subd. (a)(1).) It found not true the allegation that the losses arose from a common scheme or plan. (§ 12022.6, subds. (a)(1), (b).) The jury acquitted Winchell on 15 counts of embezzlement (§ 506), 22 counts of grand theft (§ 487, subd. (a)), six counts of petty theft (§ 484), and eight counts of embezzlement against an elder or dependent adult (§ 368, subd. (d)). The jury was unable to reach a verdict on two additional counts of petty theft, and the trial court declared a mistrial as to those counts.
Further statutory references are to the Penal Code.
The court imposed and suspended execution of a sentence of nine years eight months in prison. It granted Winchell probation with a condition that he serve 365 days in local custody.
Winchell appeals. He contends (1) the court erred in its jury instructions by misstating the elements of the crime of embezzlement (and erroneously denied his motion for new trial on that ground), (2) his convictions must be consolidated into a single conviction for embezzlement under People v. Bailey (1961) 55 Cal.2d 514 (Bailey), (3) the court erred by refusing to provide a jury instruction on the statute of limitations for embezzlement, (4) the court erred by discharging a juror during trial on the ground that she did not pay attention to the testimony of two prosecution witnesses, and (5) he cannot validly be convicted for embezzlement and grand theft based on the same conduct and his conviction for grand theft should be reversed or stricken. The Attorney General concedes the merit of Winchell's last contention, though he argues that the conviction for embezzlement should be stricken and the conviction for grand theft remain. For reasons we will explain, we accept the Attorney General's concession but agree with Winchell that the conviction for grand theft, not embezzlement, should be stricken. We disagree with Winchell's remaining contentions. We will therefore modify the judgment to strike Winchell's conviction for grand theft and the stayed sentence thereon. The judgment is affirmed as modified.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
Winchell owned and operated a jewelry store in the La Jolla area of San Diego for several decades. His business included accepting jewelry from customers to sell on consignment. It was not unusual for a piece of jewelry to sit for months or years before it was sold. It is also not unusual for small jewelry stores like Winchell's to send items to stores in other parts of the country in the hope that they will sell more quickly or at a higher price.
In 2013, James Hall gave Winchell a $13,000 engagement ring to sell on consignment. Hall later found a buyer for the ring and requested that Winchell return it. Winchell told Hall it was being offered for sale on a roadshow in another part of the country but, when pressed, gave a number of other explanations why he could not return it. Hall contacted the police, who told him he should pursue civil remedies. Hall filed an action in small claims court, but he became frustrated. Winchell told Hall he had sold the ring for $16,000 or $17,000 and that Hall should "forget about it" because it would cost more than that in attorney fees to pursue litigation. Hall decided to picket Winchell's store in La Jolla. He made a sign and spent at least two weeks protesting outside the store. A local newspaper, the La Jolla Light, printed an article about Hall and his allegations.
The jury acquitted Winchell on one count involving Hall and was unable to reach a verdict on the other. All of the other named victims in this section were the subjects of counts on which Winchell was convicted.
Meanwhile, another customer, Nat Klein, had given Winchell a $35,000 bracelet to sell. Klein saw Hall picketing outside Winchell's store and asked Winchell to return the bracelet. Winchell said the bracelet was with a broker in Chicago. Klein demanded it be returned via overnight delivery at Klein's expense; he had not known the bracelet was in Chicago. Klein returned to the store two days later, but Winchell told him the bracelet had been sold. Winchell claimed the broker was in Africa, but he heard about the sale from a friend named Jonathan White. Winchell was not able to provide contact information for White, and Klein's own research did not turn up any such person. A few weeks later, Winchell claimed the broker had disconnected his telephone line and could not be reached. Winchell said he would pay Klein what he was owed after he sold some real estate. Klein demanded payment, but he did not receive anything. Klein later filed a civil lawsuit against Winchell, obtained a writ of attachment against certain real estate Winchell owned, and eventually settled the lawsuit for $39,000.
Before filing the lawsuit, however, Klein contacted the San Diego Police Department. He met with Meryl Bernstein, a police sergeant, and told her he believed Winchell had stolen from him. Bernstein told Klein it was a civil matter, but she asked a police officer to take a report to document Klein's claim.
A few months later, Hall contacted police again and met with Bernstein. Because two individuals had now reported Winchell, Bernstein opened a criminal investigation. She received information from the San Diego County District Attorney's Office that three other individuals had also complained about Winchell. Bernstein went to Winchell's store with another police officer and met one of the individuals who had complained. Winchell initially told the individual it was not a good time to talk, but he relented when Bernstein entered the store and identified herself as a police officer. Winchell returned seven pieces of jewelry to her and wrote her a $2,100 check for pieces that had been sold.
While Bernstein was at the store, Brenda Stores entered and accused Winchell of being a thief. Stores had left a $2,200 ring with Winchell and paid $75 for refashioning or modification. She had asked Winchell to return the ring numerous times. She once saw Hall outside picketing Winchell's store and asked Winchell about it. Winchell replied that Hall was upset because the government had confiscated his "blood diamonds," i.e., diamonds sold to finance wars and other violent activity. Stores spoke to Bernstein and then went back to speak with Winchell. Winchell told Stores her ring had been stolen. Stores inquired about a police report, or insurance, and then asked Winchell to pay her the cost of the ring. Winchell asked for her card and said he would call her. He did not call Stores and never returned her ring or her $75 payment.
Six weeks later, Bernstein noticed that Winchell's jewelry store was vacant. A sign in the window indicated that Winchell was relocating and listed a telephone number and website address. The La Jolla Light ran a follow-up article about the allegations against Winchell that quoted Bernstein. In response, Bernstein received dozens of calls from potential victims.
Four months later, Bernstein obtained a search warrant for Winchell's residence, vehicles, and storage units. Winchell told police, "I don't understand why you are here. I paid off the people I owe, and the others just have to ask for their property back." As a result of the search, among other things, police officers seized 46 pieces of jewelry, 27 of which were matched to alleged victims. At a later meeting, Winchell provided around 12 additional pieces of jewelry to police. Winchell examined the seized jewelry and appeared to know exactly to whom each piece belonged. Details regarding additional victims are provided below.
Amanda Wyatt-Austin gave Winchell an $11,500 wedding band to sell on consignment. Winchell said it would not take long to sell. Two years later, Winchell told Wyatt-Austin he had a potential buyer and asked her to bring an appraisal for the ring. She did so. Winchell later told her the sale did not go through. Wyatt-Austin went to the store several more times, but Winchell dissuaded her from taking back the ring, either telling her it would sell or claiming it was at another store. Almost a decade after she gave Winchell the ring, Wyatt-Austin saw people picketing outside his store. (Wyatt-Austin worked nearby.) Wyatt-Austin asked Winchell about her ring, but he acted like he did not know her. Wyatt-Austin eventually talked to police, but she never recovered her ring.
Jane (or Jeanne) Emerson brought several items of jewelry to Winchell for sale or refashioning. Emerson and her mother had done business with Winchell several times in the past. This time, Emerson gave Winchell a $4,500 sapphire bracelet for sale on consignment, a ring to be reappraised, and a necklace for refashioning. (The ring had previously been appraised at $9,075.) Winchell sold the sapphire bracelet, but only for $1,000. He claimed the stones were pale blue and not worth much money. Winchell insisted on sending the ring to Chicago for appraisal because it was antique, but Emerson was nervous. Winchell reassured her by claiming he had insurance. When Emerson later asked about the ring, Winchell gave different reasons why it had not been appraised. Emerson asked Winchell to return the ring, but Winchell delayed and provided various excuses over the next year. Emerson went to Winchell's store on the day it closed. Winchell saw her but did not talk with her in person. Instead, he called her on her cell phone and told her not to worry, he would be opening another store in about a month. Emerson called Winchell several times thereafter, but his voicemail was full. She contacted police after reading an article about Winchell in the local paper. Winchell never returned her ring or necklace, nor did he provide compensation.
Steve Braun had purchased jewelry from Winchell numerous times. When he went to Winchell's store to inquire about a diamond, Winchell suggested a business opportunity: Winchell would find a diamond for Braun to purchase, and Winchell would later resell it at a higher price. Braun would keep the profits, and Winchell would earn a commission on the sale. A few months later, Winchell said he found a diamond ring, and Braun gave him $38,000 to purchase it. Winchell told Braun he appraised the ring at $55,000. Braun never saw the diamond itself or a bill of sale for it. When Braun asked about the diamond, Winchell said it was at another store. Braun regularly asked about the status of the sale, but Winchell alternately gave excuses for why it had not sold or expressed optimism that it would soon sell. When Braun visited the store again, he discovered it was closed. Braun called Winchell on his cell phone. Winchell claimed he was opening another store and would get Braun the diamond. Braun tried to contact Winchell again, but his voice mail was always full. He saw an article in the local paper about the allegations against Winchell and went to the police. Braun has not received the diamond Winchell allegedly purchased or been compensated for his investment.
Jennifer Kagnoff brought a $10,000 set of diamond earrings to Winchell to sell on consignment. Kagnoff had done business with Winchell before. She went to Winchell's store but did not see her earrings. Winchell assured her they were at a show in another part of the country. Kagnoff went to the store again, and Winchell claimed the earrings were with Winchell's daughter at a show in Las Vegas. Winchell said he would return the earrings by Valentine's Day if they did not sell. Kagnoff returned at the end of April, but Winchell's store had closed. Winchell never contacted her. Kagnoff called police after seeing a newspaper article about Winchell.
Hawley Winter gave Winchell a pair of diamond earrings, a necklace, and a diamond to sell on consignment. Winter asked for updates, but Winchell became more evasive over time. One day, Winchell walked away from Winter when she attempted to talk with him. Although she asked for her jewelry back, Winchell never complied. He always gave excuses. Winter contacted police after talking with Hall. She never received her jewelry back or any compensation.
Barbara Cohen asked Winchell to sell a $2,200 diamond and gold wedding ring on consignment. Cohen later gave Winchell two watches to sell on consignment as well. She had done business with Winchell before and had been happy with their relationship. Cohen saw her property on display, but it did not sell. Winchell discouraged her from taking the property back. Cohen contacted police after reading a newspaper article about Winchell's store closing. It had been 12 years since she gave Winchell the ring. She also attempted to contact Winchell, but his voice mail was full. At Winchell's preliminary hearing, Cohen told him she just wanted her property back. He said to give him a few weeks and he would either return the jewelry or compensate her. A defense investigator later called Cohen and told her that Winchell could not talk to her. Cohen never received her property or any compensation.
Sandra Moulton gave Winchell a $4,800 sapphire pin in 2010 to be refashioned into a necklace. Moulton's mother-in-law had a long business relationship with Winchell. Moulton and her husband had also purchased jewelry from Winchell. Before she passed away, Moulton's mother-in-law had given Winchell a $3,200 gold ring for sale on consignment. Moulton became responsible for it after her death. Moulton also gave Winchell four semiprecious stones valued at $300 to $400 to make into necklaces. Later, when Moulton asked about the pin, Winchell claimed it had been stolen along with some other items Moulton's husband had purchased. Winchell claimed had been seized by police as evidence and could not be returned yet. When Moulton asked about her mother-in-law's ring, Winchell claimed he was taking it to Las Vegas for sale. Moulton eventually learned Winchell's store had closed and wrote him a letter. In the letter, Moulton asked for an itemized receipt for the pin allegedly in police custody and for an opportunity to retrieve her remaining jewelry. Moulton later wrote a letter to police, with a copy to Winchell, about getting her property back. Police contacted Moulton about their investigation of Winchell. After researching the issue herself, Moulton learned that Winchell had been robbed in 2007, but neither the date nor the circumstances matched the date Winchell had told her. Winchell did not contact her after his store closed. Moulton never received her property or any compensation.
At trial, Winchell presented testimony from two character witnesses, who believed he was truthful and honest. Winchell's civil attorney, a jewelry business expert, and several other witnesses also testified.
Winchell testified in his own defense. He disagreed with Hall's version of events and believed the newspaper articles about him were inflammatory. A large number of people contacted Winchell about their jewelry, and he met with many of them. Winchell denied stealing any jewelry and gave explanations for the missing items. He said Wyatt-Austin's diamond, Store's ring, Braun's diamond, and Moulton's items were all stolen at various times. He claimed Klein's bracelet and Emerson's ring went missing or disappeared after they were sent to other parts of the country. Kagnoff's earrings were still with another store and had not been sold; Winchell claimed she had not asked for their return. He believed Winter's items were in a misfiled envelope; he would need Winter's help to identify them. Winchell said he could not find Cohen's items after police searched his residence.
DISCUSSION
I
Winchell first contends the trial court erroneously instructed the jury regarding the elements of embezzlement. The court gave the form instruction on theft by embezzlement, CALCRIM No. 1806, slightly modified as follows: "Now, the defendant is charged in various counts with grand theft by embezzlement in violation of Penal Code section 506. [¶] To prove the defendant is guilty of this crime, the People must prove that, one, an owner entrusted his or her property to the defendant; two, the owner did so because he or she trusted the defendant; three, the defendant fraudulently converted or used that property for his own benefit; and four, when the defendant converted or used the property, he intended to deprive the owner of its use. [¶] A person acts fraudulently when he or she takes undue advantage of another person or causes a loss to that person by breaching [a] duty, trust or confidence."
" 'In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instructions in a manner that violated the defendant's rights.' [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction." (People v. Smith (2008) 168 Cal.App.4th 7, 13.) " 'Errors in jury instructions are questions of law, which we review de novo.' " (People v. Fenderson (2010) 188 Cal.App.4th 625, 642.)
Embezzlement is defined by statute: "Every trustee, banker, merchant, broker, attorney, agent, assignee in trust, executor, administrator, or collector, or person otherwise entrusted with or having in his control property for the use of any other person, who fraudulently appropriates it to any use or purpose not in the due and lawful execution of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose . . . is guilty of embezzlement . . . ." (§ 506.)
Winchell claims the court's jury instruction did not accurately convey the meaning of the terms "fraudulent" or "fraudulently" in the statute. In his view, the court's instruction defining the term as "tak[ing] undue advantage of another person or caus[ing] a loss to that person by breaching [a] duty, trust or confidence" created an ambiguity regarding the mental state required for embezzlement. He claims the instruction allowed the jury to find him guilty based on mere negligence, i.e., the breach of a duty. He points out that fraudulent intent, not mere negligence, has long been recognized as an essential element of embezzlement. (See People v. Talbot (1934) 220 Cal. 3, 13; Breceda v. Superior Court (2013) 215 Cal.App.4th 934, 956.)
As Winchell recognizes, however, the intent required for embezzlement is the intent to deprive the owner of his or her property or its use. (See People v. Casas (2010) 184 Cal.App.4th 1242, 1247; People v. Riley (1963) 217 Cal.App.2d 11, 17-18.) The fourth element of the jury instruction provided by the court embodies this idea: "[W]hen the defendant converted or used the property, he intended to deprive the owner of its use." Under the court's instruction, the jury was required to find this intent in order to find Winchell guilty of embezzlement. Unlike People v. Whitney (1953) 121 Cal.App.2d 515, 519-520, cited by Winchell, the essential element of fraudulent intent was not omitted from the court's jury instruction. It was included as part of the instruction's fourth element. (See People v. Fenderson, supra, 188 Cal.App.4th at pp. 636-637 [approving the elements of embezzlement as stated in CALCRIM No. 1806].) Winchell has not shown any reasonable likelihood that the jury understood the court's instruction in a manner that violated his rights.
We likewise disagree with Winchell's claim that the court's jury instruction created an ambiguity regarding the intent required for embezzlement. The intent requirement is stated in the jury instruction's fourth element. The requirement that the defendant act fraudulently is an additional requirement under the instruction; it does not affect or negate the intent requirement. Again, Winchell has not shown any reasonable likelihood that the jury understood the court's instruction in a manner that violated his rights. And, for the same reason, the court did not err in denying his motion for new trial that made the same argument.
To the extent Winchell contends the instruction, while correct, could be made clearer, he has forfeited such a contention by failing to object in the trial court. (See People v. Valdez (2004) 32 Cal.4th 73, 113.) In light of our conclusion, however, we need not consider the Attorney General's argument that Winchell forfeited his main contention that the instruction was incorrect for failing to object. Winchell's contention is rejected on its merits.
II
Winchell next contends he could not be convicted of multiple counts of embezzlement and grand theft under Bailey, supra, 55 Cal.2d 514, because the counts all arose from the same intent, plan, or scheme. He argues they must be consolidated into a single count of embezzlement or, in the alternative, all of the embezzlement counts must be so consolidated.
Bailey articulated the following test: "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." (Bailey, supra, 55 Cal.2d at p. 519.) "As with all factual questions, on appeal we must review the record to determine whether there is substantial evidence to support a finding that the defendant harbored multiple objectives. [Citations.] The Bailey doctrine applies as a matter of law only in the absence of any evidence from which the jury could have reasonably inferred that the defendant acted pursuant to more than one intention, one general impulse, or one plan." (People v. Jaska (2011) 194 Cal.App.4th 971, 984 (Jaska).)
Three years ago, our Supreme Court clarified the test in Bailey and rejected the interpretation of that test adopted by a number of Court of Appeal opinions. (People v. Whitmer (2014) 59 Cal.4th 733, 740-741 (Whitmer).) But the Supreme Court found that its clarification, which expanded the scope of criminal liability, could not be applied retroactively. " 'Courts violate constitutional due process guarantees [citations] when they impose unexpected criminal penalties by construing existing laws in a manner that the accused could not have foreseen at the time of the alleged criminal conduct.' " (Id. at p. 742.) "[G]iven the numerous, and uncontradicted, Court of Appeal decisions over a long period of time that reached a conclusion contrary to ours, we believe today's holding is . . . an unforeseeable judicial enlargement of criminal liability for multiple grand thefts." (Ibid.) Here, according to the prosecution's allegations, all of Winchell's crimes could have been committed before Whitmer. Because the parties do not directly address these timing issues and their effect on Winchell's due process rights, and given our ultimate conclusion rejecting Winchell's argument on its merits, we will assume without deciding that it would violate due process to apply Whitmer's clarification to him under the circumstances here. We will therefore apply pre-Whitmer authority to determine whether the Bailey test applies. (See People v. Nilsson (2015) 242 Cal.App.4th 1, 14.) Winchell appears to acknowledge that, if Whitmer's clarification of Bailey applied, his crimes would properly be considered separate offenses and his argument would fail. --------
"[T]he following types of evidence are relevant in determining whether a defendant acted pursuant to a single intent in committing a series of thefts: whether the defendant acted pursuant to a plot or scheme [citations]; whether the defendant stole a defined sum of money or particular items of property [citation]; whether the defendant committed the thefts in a short time span [citation] and/or in a similar location [citation]; and perhaps most significantly, whether the defendant employed a single method to commit the thefts [citation]." (Jaska, supra, 194 Cal.App.4th at pp. 984-985.) Given these factors, it is clear that generally a series of crimes will not constitute a single offense where the crimes were committed against multiple victims. (In re David D. (1997) 52 Cal.App.4th 304, 309.) "Bailey does not prohibit multiple convictions where the defendant commits a series of thefts based on separate intents, even if the defendant acts pursuant to the same intent on each occasion." (Jaska, at p. 984.)
Here, although the thefts occurred at the same location, the jury could reasonably find Winchell took the victims' property at various times over a multiyear period. Additionally, Winchell appeared to act opportunistically, not systematically, and there was little evidence of a coherent plot or scheme. (See Jaska, supra, 194 Cal.App.4th at p. 985.) Winchell's victims were unrelated and varied, as was their property. (See People v. Church (1989) 215 Cal.App.3d 1151, 1159 [affirming four separate convictions for thefts from four different medical offices in the same building committed on a single night].) Under all of the circumstances, the jury could reasonably find that Winchell's crimes were separate and distinct and were not committed pursuant to a single intention, general impulse, or plan.
Winchell points out that the prosecution argued, and the jury found true, the allegation that he engaged in a "pattern of related felony conduct," which meant felonies "that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics and that are not isolated events." (§ 186.11, subd. (a)(1).) But this allegation is much broader than the Bailey test, since it encompasses any felonies that are "not isolated events." It does not show that the crimes were committed pursuant to a single intention, general impulse, or plan. Indeed, the jury found not true the allegation that the losses here arose "from a common scheme or plan." (§ 12022.6, subd. (b); id., subd. (a)(1).) Although our conclusion would be the same without that finding, it is nonetheless relevant.
Winchell cites People v. Brooks (1985) 166 Cal.App.3d 24 (Brooks) in support of his argument. In that case, the defendant was an auctioneer. (Id. at p. 27.) The crimes arose from a single auction, in which 14 consignors of equipment sold at the auction did not receive the proceeds of the sales. (Ibid.) Although involving multiple victims, Brooks held that only a single theft conviction could result: "[W]e find 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." (Id. at p. 31.) The reasoning in Brooks has been criticized. (See People v. Garcia (1990) 224 Cal.App.3d 297, 308-309.) But even accepting Brooks at face value, it is distinguishable. Brooks involved a single event, a single fund, and the same exact manner of theft. Here, by contrast, the crimes took place over a period of years, at various times and under various circumstances, such that the jury could reasonably find there was no single intention, general impulse, or plan.
Winchell has not shown the Bailey doctrine should apply here. In light of this conclusion, we need not consider the Attorney General's argument that Winchell forfeited this claim of error by failing to raise it in the trial court.
III
Winchell argues that the trial court erred by refusing to instruct the jury on the statute of limitations. Winchell requested such an instruction on the counts involving Wyatt-Austin and other victims not relevant here.
"It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant's theory of the case [citation]. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' " (People v. Salas (2006) 37 Cal.4th 967, 982.) " 'Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.' " (People v. Flannel (1979) 25 Cal.3d 668, 685.) "On review, we determine independently whether substantial evidence to support a defense existed." (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
A prosecution for embezzlement must be commenced "within four years after discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later." (§ 801.5; see People v. Wong (2010) 186 Cal.App.4th 1433, 1444.) "In applying the discovery requirement, '[L]ack of actual knowledge is not required to bring the "discovery" provision . . . into play. The crucial determination is whether law enforcement authorities or the victim had actual notice of circumstances sufficient to make them suspicious of fraud thereby leading them to make inquiries which might have revealed the fraud.' [Citation.] 'However, discovery of a loss by the victim alone is insufficient to trigger the running of the limitations period: "Literally, . . . discovery of a loss, without discovery of a criminal agency, is not enough." [Citation.]' [Citations.] 'The question is whether there is sufficient knowledge that a crime has been committed.' " (People v. Petronella (2013) 218 Cal.App.4th 945, 956, italics omitted.) "[I]t is discovery of the crime, and not just a loss, that triggers the running of the statute." (People v. Lopez (1997) 52 Cal.App.4th 233, 246, fn. 4.)
Winchell argues that Wyatt-Austin was on notice that a crime had been committed when Winchell retained her ring for years even though he told her initially that it would sell quickly. He claims a reasonable person would have been suspicious of wrongdoing within a year or two after Wyatt-Austin last saw her ring in December 2006. We disagree. At that point, Winchell had not disappeared, and Wyatt-Austin had every reason to believe he was continuing to seek buyers. Winchell himself repeatedly assured Wyatt-Austin that the ring would sell or that he was trying to sell it at another store. Even viewing the evidence in the light most favorable to Winchell, no reasonable juror could find that Wyatt-Austin had sufficient knowledge that a crime had been committed outside the statute of limitations period.
Winchell claims the prosecutor acknowledged in closing argument that Wyatt-Austin should have been suspicious. We disagree. The prosecutor argued, "The defendant asked her interestingly for her to bring in a copy of the appraisal for her ring [in December 2006]. It was on display at the store. And then after she brought in the appraisal to show him, it was suddenly gone. Reasonable inference is because it was sold. She was told when she checked on it, 'I've got a buyer, the deal fell through, wait for the holidays,' et cetera." The prosecutor was not arguing that Wyatt-Austin should have reasonably inferred a crime had been committed at the time. Instead, the prosecutor argued that the jury should reasonably infer a crime had been committed based on the evidence at the time of trial. Winchell's contrary interpretation is unpersuasive.
IV
Winchell argues the trial court erred by excusing a juror during trial, based on the juror's admission that she missed the testimony of two witnesses, Moulton and Cohen. Several days into trial, the juror notified the court that she had seen interactions between two prosecution witnesses and Bernstein, the investigating sergeant, that made her uncomfortable. Under questioning by the court, the juror explained that the witnesses and Bernstein appeared overly friendly and appeared to communicate about the case. As a result, she said, "And the last two witnesses, I wasn't able to concentrate well because I'm thinking should it be questioned every time that they're not being coached or they're not being influenced by Sergeant Bernstein on this case? So I wasn't able to concentrate on the last two especially." After further questioning, the juror confirmed that she "missed the last two witnesses and what they have talked about," including most of what they said. After hearing argument from counsel, and over the objections of the defense, the court excused the juror. The court explained, "I think what she observed between Sergeant Bernstein and Ms. Cohen is kind of moot in light of the fact she didn't hear the last two witnesses. I mean, when I hear her say that, I have to assume that means both direct and cross-examination, so I don't know what else I can do but excuse her. I'm certainly not going to have those witnesses testify all over again."
The trial court may discharge a juror during trial for good cause if the juror "is found to be unable to perform his or her duty. " (§ 1089.) "Although this court reviews for abuse of discretion a court's ruling discharging a juror pursuant to section 1089 [citation], [our Supreme Court has] made clear that such review involves a 'heightened standard [that] more fully reflects an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury.' [Citations.] Specifically, the juror's 'inability to perform' his or her duty 'must appear in the record as a demonstrable reality.' " (People v. Armstrong (2016) 1 Cal.5th 432, 450.)
" 'The demonstrable reality test "requires a showing that the court as trier of fact did rely on evidence that, in light of the entire record, supports its conclusion that [disqualification] was established." [Citation.] To determine whether the trial court's conclusion is "manifestly supported by evidence on which the court actually relied," we consider not just the evidence itself, but also the record of reasons the court provided. [Citation.] In doing so, we will not reweigh the evidence. [Citation.]' [Citation.] We defer to the trial court's credibility assessments 'based, as they are, on firsthand observations unavailable to us on appeal.' " (People v. Williams (2015) 61 Cal.4th 1244, 1262, italics omitted.)
It is well-established that sleeping during trial may be sufficient cause to support a juror's discharge. (See, e.g., People v. Bonilla (2007) 41 Cal.4th 313, 350; People v. Johnson (1993) 6 Cal.4th 1, 21-22; see also Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411 ["[A] jury's failure to pay attention to the evidence presented at trial is a form of misconduct."].) Here, an analogous situation occurred. The juror was unable to concentrate and, by her own admission, missed most of the testimony of two witnesses. It was not a "brief period of lack of concentration," which might be inherent in any trial, as Winchell contends. Instead, it was a substantial and substantive lapse in her obligations as a juror to hear the evidence. "The duty to listen carefully during the presentation of evidence at trial is among the most elementary of a juror's obligations." (Hasson v. Ford Motor Co., at p. 411.) The juror's inability to perform therefore appears as a demonstrable reality from the record, which fully supports the trial court's stated reasons for discharging her. Winchell has not shown any abuse of discretion.
V
Winchell contends he cannot be convicted of both grand theft (§ 487, subd. (a)) and embezzlement (§ 506) for the same conduct. The jury convicted Winchell of both crimes based on his theft of $38,000 that Braun gave him for the ostensible purpose of buying and selling a diamond for profit. Winchell asks that his conviction for grand theft be vacated, so only the conviction for embezzlement remains. The Attorney General agrees Winchell cannot be convicted of both crimes for the same conduct, but he argues grand theft is "arguably a more serious crime" than embezzlement and therefore the latter conviction should be stricken. On reply, Winchell states that either conviction should be reversed.
In People v. Vidana (2016) 1 Cal.5th 632 (Vidana), our Supreme Court undertook a comprehensive review of California's theft statutes. It concluded that grand theft by larceny under section 487, subdivision (a) and embezzlement under section 503 are different statements of the same offense and a defendant may not be convicted of both based on the same conduct. (Vidana, at pp. 635, 648.) The Supreme Court did not address which conviction should remain, and it declined to consider whether striking one conviction or consolidating the convictions was the appropriate remedy. (Id. at p. 651, fn. 18.) It affirmed the disposition of the Court of Appeal, however, which struck the grand theft conviction. (Id. at pp. 635-636, 651.)
Here, the court imposed a sentence based on Winchell's embezzlement conviction but imposed and stayed the sentence based on the grand theft conviction under section 654. This choice reflects the court's determination that embezzlement was the main conviction. We will therefore strike the grand theft conviction, as the Supreme Court affirmed in Vidana.
DISPOSITION
The judgment is modified to strike Winchell's conviction for grand theft on count 30 and the stayed sentence thereon. As so modified, the judgment is affirmed. On remand, the trial court shall prepare an amended order granting probation.
NARES, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.