Opinion
A147100
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH WITHAM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR664154)
Joseph Witham (appellant) appeals from a judgment entered after a jury convicted him of theft from an elder or dependent adult (Penal Code, § 368, subd. (d)) and grand theft (§ 487, subd. (a)), and the trial court placed him on probation. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2015, an information was filed charging appellant with: (1) theft from an elder or dependent adult (count 1, § 368, subd. (d)); and (2) grand theft (count 2, § 487, subd. (a)). The jury found appellant guilty as charged, and the trial court placed him on probation with various conditions including that he serve one year in county jail and complete a drug treatment program.
In 1998, appellant's maternal grandparents, Edward and Alpha Heise, created a family trust (the Trust) and designated themselves trustees, trustors, and beneficiaries of the Trust. The Trust initially designated appellant as the first trustee substitute. It also provided, "If a Trustee cannot administer the trust because of physical or mental incompetency, or otherwise cannot act during any period of incompetency, that Trustee shall be considered to have ceased to act as Trustee for purposes of this provision." The Trust owned various assets including bank accounts and real properties in Santa Rosa and Cazadero.
In 2003, Edward and Alpha Heise executed an addendum to the Trust, designating their daughter Edna Witham—appellant's mother—as the first trustee substitute, and designating appellant as the second trustee substitute. The addendum removed the provision that a trustee would be considered as having ceased to act as trustee should he or she become physically or mentally incompetent. The Trust provided that if Edward predeceased Alpha, Alpha and Edna Witham would serve as co-trustees, and that if Alpha predeceased Edward, Edward and appellant would serve as co-trustees.
Because Edward and Alpha Heise share the same last name, in the interests of clarity we refer to them by their first names. We intend no disrespect.
Edward died in 2005. In 2009, Alpha executed a durable power of attorney designating appellant her attorney in fact. After Edward's death, Alpha and Edna Witham served as co-trustees until Edna Witham died in February 2012. Shortly thereafter, Alpha added appellant as the joint account holder to two personal bank accounts at Exchange Bank that were not part of the Trust, which she had previously jointly held with Edna Witham. That same day, Alpha and appellant also opened a joint personal checking account at Exchange Bank.
In April 2012, Alpha moved into the Five Palms Care Home (Five Palms), which provides assisted living for people who have dementia or otherwise need assistance with daily living activities. The monthly fee for residence and services at Five Palms was $3,000. At the time, appellant told the administrator of Five Palms that Alpha was starting to forget things like making meals and dressing, and that he was unable to take care of her. Although Alpha was able to follow instructions and communicate her needs, her doctor testified she would not have been able to make important financial decisions at that time. Alpha was diagnosed with mild cognitive impairment in April 2012, and as of December 2012, she was described by her doctor as "pleasant but quite confused." By January 2014, she was diagnosed with dementia and was confused and disoriented; she went from using a walker to using a wheelchair.
Initially, appellant visited Alpha regularly and delivered supplies she needed every month. He began to visit less and less after the first year, and in late 2014, he stopped visiting. In September, October, and November of 2014, the monthly fee checks to Five Palms bounced. Five Palms tried to reach appellant by sending him text messages and calling him; he did not respond. On December 29, 2014, Five Palms gave written notice to appellant, with a copy to the state ombudsman who advocates for the elderly, that if the fees were not paid, Alpha would be evicted on January 29, 2015. Thereafter, the ombudsman arranged to have the Trust's bank accounts frozen and arranged for payment of the outstanding fees to Five Palms.
Records were introduced at trial showing that between August 2014 and July 2015, appellant gambled at Graton Resort and Casino (Graton Casino) and suffered net losses of $73,567.80. Evidence was introduced showing that funds belonging to the Trust were transferred into appellant's own accounts. For example, renters who moved into one of the Trust's real properties in May 2013 paid the monthly $1,675 rent to appellant, and appellant deposited the checks, totaling $13,400 as of 2014, into his own account at Community First Credit Union. There was also a check from an insurance company made out to Alpha that was deposited into appellant's account.
Appellant had his own trust—the Joseph L. Witham Trust—which had an account at Community First Credit Union. Appellant also had a personal account at Patelco Credit Union and a brokerage account at Scottrade, and owned a house in Forestville, and duplexes in Santa Rosa that had been given to him by his grandparents.
A fraud examiner at Exchange Bank—where appellant and Alpha had personal joint accounts—testified that he began investigating appellant as a suspect on May 14, 2014, after receiving a telephone call from the Sonoma County District Attorney's Office. The examiner conducted an analysis of the checking account and found there was a significant change in 2014 in the way the account was being used. In 2013, there were no cash withdrawals from the account; in contrast, in 2014, there were cash withdrawals totaling $71,581, and no cash deposits. Surveillances videos revealed that all of the cash withdrawals were made by appellant. Records showed there were large transfers from an account held by the Trust into the Exchange Bank accounts between November 2013 and December 2014, totaling over $80,000. Included were transfers totaling $40,000 over the course of four days in December 2014 and a $27,500 transfer on October 15, 2014, followed by nine withdrawals by appellant between October 17 and October 21, 2014. Because appellant was systematically withdrawing cash "very quickly" after the transfers, the account was "drained of money" and there was not enough money to clear the monthly fee checks to Five Palms.
On January 16, 2015, appellant was interviewed by a detective from the Santa Rosa Police Department. Asked about a $15,000 transfer from a Trust account to an Exchange Bank account on December 18, 2014, appellant said, "That was for a roof on the Cazadero." When the detective said, "Oh so they have a new roof . . . in the Cazadero house," appellant replied "Well [unintelligible] yeah." When the detective said, "Okay so . . . if I drive out to the Cazadero house . . . there's gonna a be a new roof out there," appellant said, "There might not be a new roof because I don't know that it needed the roof."
Asked about a $25,000 transfer on December 19, 2014, appellant said "Ah that was for removal of ah Danbeck [another property]. Basement we ah the walls had mold." He said, "[T]hat's been done and finished." Asked about a $27,500 transfer on October 14, 2014, appellant said "It might have been probably, ah actually um start work on river house, Forestville."
Asked about Graton Casino, appellant said he had spent approximately $200,000 there in six months, playing slots and blackjack. He said, "Me and Graton Casino, I consider it a two hundred thousand dollar investment . . . ." He explained he was only "tryin' to help people out" by spending money there. Asked about money that had been withdrawn from the Exchange Bank accounts, appellant said he was only doing what his grandmother would want him to do with the money. When the detective asked, "she would want you to be goin' to the casino and losing money," appellant said, "Yes, she'd want me to. Yes. You know why? She'd understand that it helped people." When the detective said, "You're not acting on your grandmother's behalf," appellant responded, "Yes I am sir." Appellant said he had her best interest in mind, and that she has "plenty of financial assets to take care of her the rest of her life" and "still has money available and plenty of other people in this world to care for her." When the detective reminded appellant, "your grandma almost got evicted," appellant responded, "You know what, because people are stealing my God damn paperwork. I wasn't aware of it."
In February 2014, appellant reported to Exchange Bank and to police that he had been the victim of fraud. The fraud involved checks in the amount of $4,750, $2,300, and $2,400, upon which appellant's signature had been forged. On that case, there were criminal charges filed and the perpetrator pleaded guilty. --------
The detective testified at trial that when he went to the Cazadero house "to look at the property and the roof to see if there was any evidence of any repairs being done," he did not see any evidence of repairs. He also went to the Danbeck house "to inspect to see whether mold repair work had been done there." He "looked through every room of the house, and there was no evidence of any recent work being done." He also did not see any mold.
DISCUSSION
Appellant's counsel has filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, and asks this court to independently review the entire record to determine if it contains any issues which would, if resolved favorably to the appellant, result in reversal or modification. We have examined the entire record and have found no reasonably arguable appellate issue, and we are satisfied that counsel has fully complied with his responsibilities. (People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment is affirmed.
/s/_________
McGuiness, P.J. We concur: /s/_________
Pollak, J. /s/_________
Siggins, J.