P. v. Talton

Filed 8/14/06 P. v. Talton CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed in part, reversed in part, and remanded with instructions.

Herbert Klein (Klein) hired Mary Alice Talton to serve as daytime caretaker for his wife Marjorie Klein (Mrs. Klein), who suffers from dementia. In 2003 Klein became aware of financial irregularities involving unauthorized use of his checks and credit cards. Talton came into possession of, and tried to deposit into her own account, several of Klein's checks that he did not authorize and that his wife did not sign.

A jury acquitted Talton of one count of second degree burglary (count 4: Pen. Code,^[1] § 459), but convicted her of conspiracy to defraud the Kleins (count 1: § 182, subd. (a)(4)), caretaker theft from an elder (count 2: § 368, subd. (e)), grand theft (count 3: § 487, subd. (a)), two counts of possession of forged items (counts 5 & 7: § 475, subd. (a)), and one count of second degree burglary (count 6: § 459).

The court sentenced Talton to the middle term of three years in state prison for her conviction of caretaker theft from an elder (count 2), and to concurrent two-year prison terms for her convictions of possession of forged items (count 5) and second degree burglary (count 6). Under section 654, the court stayed imposition of the two-year prison terms for the convictions of conspiracy to defraud (count 1), grand theft (count 3), and possession of forged items (count 7).

Talton appeals, contending there was insufficient evidence to convict her of conspiracy (count 1). She also argues that her conviction of grand theft (count 3) must be reversed because it is a lesser included offense to that of grand theft from an elder (count 2). The People agree that count 3 is a lesser offense necessarily included in count 2 and must be reversed. We affirm the conspiracy conviction, reverse the grand theft conviction, and otherwise affirm the judgment.

FACTUAL BACKGROUND

Klein hired Talton in 2000 to care for his ailing wife. Klein, who was 87 years old at the time of the trial, still worked and hence needed to hire caregivers to watch his 86-year-old wife, who had suffered a stroke and was succumbing to dementia. He found Talton through a hiring agency called Lenora's Assisted Living Services, Inc. (Lenora's) and welcomed her into the family. Talton was responsible for taking care of Mrs. Klein during the day. According to both Gwendolyn Coleman (who was hired from the same agency as Talton and worked the nightshift for the Kleins) and Klein, Coleman and Talton were treated very well, like part of the family.

Klein testified that in 2003, after he returned from a cruise around Cape Horn, his assistant showed him some checks that did not look right. He was shocked to see that some of the checks had been forged, some under his name and others under Mrs. Klein's name. He stated that most were "not very good forgeries," and the amounts "amaze[d]" him. Klein became so alarmed when he discovered a forged $300 check payable to San Diego Gas & Electric (SDG&E) that he called the chief executive officer of SDG&E to ask that she look into it. When Klein first noticed the financial abnormalities, he did not initially suspect Talton because he trusted her.

The fact that many of the questionable checks were made out to Talton spurred Klein's suspicion of financial impropriety on Talton's part. However, Klein had been suspicious of Talton before and faulted himself for not being as direct with her as he should have been. Klein recalled writing checks payable to Talton on rare occasions. The usual purpose for Klein's writing personal checks to Talton included reimbursing her for groceries, working overtime on weekends, and occasionally lending her money when checks from Lenora's bounced.

Klein testified that some of the checks he remembered writing to Talton had been altered to reflect a larger amount than he had signed for. Some of the checks also bore Mrs. Klein's signature. Klein testified those checks must have been forged because to his knowledge Mrs. Klein had stopped writing checks after her stroke in 2000.

Talton's handwriting expert, Daniel Vomhoff, testified that the two checks written to SDG&E─the $300 check and the $190 check (discussed, post)─were not signed by either Klein or Mrs. Klein.

Klein collected all of the questionable checks and put them in a pile on a desk in his home. At the time, Klein, Mrs. Klein and Talton were the only people in the home. A short time later, Klein saw Talton go out to her car for a few minutes. Within an hour, Klein discovered the checks were missing from the desk. Klein called his daughter to ask for her help finding the checks, and Talton assisted. Klein's daughter testified that Talton told her she (Talton) had found the checks in the garage under Mrs. Klein's car. Klein testified that some of the checks that had been made payable to Talton were still missing.

Two of the forged checks were used to pay SDG&E utility bills to settle the delinquent accounts belonging to Talton and her downstairs neighbor Margaret Pearson. Talton and Pearson knew each other before the events in question. The property manager of their apartment complex testified she had seen Talton and Pearson talking together near their apartments.

On May 13, 2003, SDG&E sent a notice to Pearson that her utility bill payment was delinquent. About two weeks later, on May 28, SDG&E shut off Pearson's utility service. A video surveillance camera captured Pearson depositing the first forged and stolen check (No. 3182, hereafter referred to as the $300 check) at an SDG&E office that same day. The second check (No. 3342, hereafter referred to as the $190 check) was deposited at the same SDG&E office and credited to Talton's SDG&E account about a week later. No video recording was available to place Talton at the SDG&E office and in possession of the $190 check at the time it was deposited. However, SDG&E investigator Gilbert Moya testified that on June 5 someone from SDG&E delivered a "shut off" notice to Talton's residence giving her 10 days to pay her account. Moya indicated that a $190 check was credited to Talton's SDG&E account through use of an automatic payment machine on June 6 at 6:11 a.m. Talton's shift at the Kleins' home began at 7 a.m. Moya testified that whoever made the deposit into Talton's SDG&E account had to know her account number.

After some investigation, Klein learned that both of the checks had been credited to settle delinquent accounts, and one of those accounts was Talton's. After Lenora's notified Talton that she was suspected of stealing from the Kleins, Talton admitted in a written statement that she had violated Lenora's policies by allowing Pearson into the Kleins' home on occasion to care for Mrs. Klein without Klein's knowledge or permission, a terminable offense.

Derrick Poirier, a physical therapist employed by the Kleins from 1999 until 2003, testified that he occasionally saw a woman named Margaret in the Klein home. Poirier stated that the name "Pearson" sounded familiar to him, but he could not positively identify Pearson when shown a photograph of her. Poirier also testified that on several occasions he saw Talton help Mrs. Klein write and sign checks by guiding her hand through the motions. Poirier accepted checks made out in this fashion when on occasion Klein forgot to leave him a check for his services. Klein was always notified about the check writing as it pertained to paying Poirier.

Outside of working for the Kleins, Talton enjoyed gambling at Indian casinos throughout San Diego County. Several times between May and July of 2003, Talton went to casinos to play bingo and made cash withdrawals from ATM's there, sometimes making multiple withdrawals in a single trip. Specifically, Karen Moulton, a customer service officer at Talton's bank, indicated that in May, June and July of 2003, Talton made many cash withdrawals from ATM's at the casinos. Talton withdrew $125 on May 27 at Sycuan; unspecified amounts on June 2 at Rincon and on June 4 at Sycuan; three unspecified amounts on June 9 at Sycuan; $104 on June 13 at Sycuan; $204 twice (i.e., $408) also on June 13 at Viejas; $203 on June 16 at Wildcat Canyon near Barona; $64 and $204 on June 30 at Sycuan; and several additional withdrawals in July. At the same time Talton was frequenting these casinos, many of the suspected fraudulent checks were being deposited into Talton's account. Also during this time frame, the two SDG&E checks in question were stolen and used to pay off the delinquent SDG&E accounts of Talton and Pearson.

STANDARD OF REVIEW

"'"When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence─i.e., evidence that is credible and of solid value─from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt."' [Citations.] When undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment. [ Citation.]" (People v. Hill (1998) 17 Cal.4th 800, 848-849.) This standard of review applies in cases in which the People mainly rely on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)

DISCUSSION

I.

SUFFICIENCY OF THE EVIDENCE (CONSPIRACY)

Talton contends there was a lack of sufficient evidence to convict her of conspiring with Pearson to defraud the Kleins (count 1). We reject this contention.

A. Applicable Legal Principles

"[A] criminal conspiracy exists when two or more persons agree to commit a crime and do some overt act in furtherance of the agreement. [Citations.]" (People v. Brown (1969) 272 Cal.App.2d 623, 627-628.) The California Supreme Court has explained that "[d]isagreement as to who the coconspirators were or who did an overt act, or exactly what that act was, does not invalidate a conspiracy conviction, as long as a unanimous jury is convinced beyond a reasonable doubt that a conspirator did commit some overt act in furtherance of the conspiracy. When two or more persons combine to commit a crime, the jury need not agree on exactly who did what as long as it is convinced a particular defendant committed the crime regardless of what that defendant's precise role may have been. Sometimes there may be uncertainty as to which of two persons did what, but no doubt that each, or at least a particular defendant, was guilty of the crime." (People v. Russo (2001) 25 Cal.4th 1124, 1135-1136.)

B. Allegations

In count 1 of the information, the People alleged that Talton conspired with Pearson to cheat and defraud the Kleins of property. The information also alleged three overt acts pursuant to the conspiracy and in furtherance of the object thereof: (1) Talton stole multiple checks belonging to the Kleins, including the $300 check, while acting as caregiver to Mrs. Klein; (2) Talton gave the $300 stolen check to Pearson; and (3) Pearson entered the premises of SDG&E and presented the $300 check for payment on her delinquent utility account. The alleged third overt act is uncontested. Talton concedes "[t]here is no question that [Pearson] paid her SDG&E bill with a check stolen from the Kleins."

C. Analysis

Talton maintains that for her to be tied to the conspiracy, the jury must have found true the first two overt act allegations, i.e., that Talton stole the $300 check from the Kleins, and then gave the check to Pearson. Talton contends "[t]here was no evidence presented that [she] stole [the $300 check] from the Kleins, [or] that she gave it to [Pearson]." We reject this contention.

From the substantial evidence described in the factual background section, ante, a rational trier of fact could have found Talton guilty of conspiracy beyond a reasonable doubt as charged in count 1. Both Talton and Pearson, who were neighbors and had been seen talking to one another near their apartments, had delinquent SDG&E accounts. At the time Pearson deposited the stolen and forged $300 check into her account, SDG&E had already cut off her utility service, giving her a motive to steal to get her power turned back on.

When the $190 check was deposited into Talton's SDG&E account about one week later, Talton had also received a shutoff notice from SDG&E the previous day and was facing the imminent termination of her own utility service. During this time period, Talton was frequently gambling at local casinos and was withdrawing substantial amounts of cash from the casino ATM's. Talton's inability to pay her utility bill gave her an identical motive to steal. Circumstantial evidence indicates Talton went to the SDG&E office to deposit the $190 check to pay her utility bill. The check was deposited at 6:11 a.m. at a machine that required knowledge of Talton's account number. Furthermore, Talton's shift at the Kleins' began at 7 a.m. A reasonable trier of fact could conclude that Talton deposited the $190 check. Talton was caring for an elderly woman─Mrs. Klein─who was succumbing to dementia. Since Talton and Mrs. Klein were usually alone in the home during the day, the jury could reasonably have concluded beyond a reasonable doubt that Talton stole the $190 check.

The questionable checks that Klein placed on a desk disappeared under suspicious circumstances when Talton was the only person in the home other than the Kleins. Later, Talton told Klein's daughter that she (Talton) had found the checks under Mrs. Klein's car. However, some of the checks made payable to Talton were still missing. This point is significant because the fact that Talton said she found the checks in the garage, under Mrs. Klein's car, put Talton in sole possession of the questionable checks with no one else around, giving her ample opportunity to dispose of certain checks that implicated her in theft. A rational trier of fact could find that because some checks were still missing after Talton "found" the stack of checks, Talton attempted to dispose of incriminating evidence, suggesting consciousness of guilt. The foregoing substantial evidence, though circumstantial in nature, supports the jury's findings that (1) Talton and Pearson agreed to defraud the Kleins, and (2) Talton committed overt acts in furtherance of the object of the conspiracy by stealing the forged $300 check and giving it to Pearson.

Citing Klein's testimony, Talton asserts that "[t]he strongest evidence received by the jury indicating that [she] wasn't a part of a conspiracy, is that when [she] learned that [Pearson] had used a check stolen from the Kleins to pay her SDG&E bill she angrily confronted her. [Klein] overheard [Pearson] apologizing to [Talton]." Talton mischaracterizes Klein's testimony.

On cross-examination, the following exchange occurred between defense counsel and Klein:

"Q. Do you remember calling up [Talton] and talking to [her] about the [$300] check?

"A. I don't recall that.

"Q. Do you remember that [Talton] was on a cell phone with you and went downstairs and confronted one of her neighbors about the check?

"A. I do remember that.

"Q. You remember listening on the other end of the phone when this happened, correct?"

"A. I do.

"Q. And you heard the person downstairs Margaret Baker also known as [Pearson] saying I am very sorry Mary; is that true? [¶] . . .

"A: I don't recall precisely what I heard, but it could be that. I don't know."

Talton offers these excerpts from Klein's testimony as proof that Pearson, not she, stole the $300 check, and thus she did not participate in a conspiracy with Pearson to defraud the Kleins. Talton mischaracterizes Klein's testimony by suggesting it shows Klein overheard Pearson apologizing to Talton. The reporter's transcript shows that Klein's recollection of the conversation was inconclusive because he testified he did not know whether he heard Pearson apologize to Talton. The defense presented no corroborating evidence to prove that Pearson apologized to Talton for allegedly stealing the $300 check. Furthermore, the jury did not find this "strong" evidence compelling and reasonably could have found that Talton staged the "apology."

Quoting People v. Brown (1989) 216 Cal.App.3d 596, 600 (Brown) for the proposition that "where the proven facts give equal support to two inconsistent inferences, neither is established," Talton asserts that "[i]t is just as plausible that [Pearson] stole the checks on her own while watching [Mrs. Klein] or that [Coleman] stole the check and forged it for [Pearson]. The evidence equally supports both scenarios and there is no reasonable inference that can be drawn that supports one scenario over the other." Coleman was the caregiver who worked the nightshift for the Kleins.

Viewing the entire record in the light most favorable to the judgement, as we must (People v. Hill, supra, 17 Cal.4th at p. 848), we reject Talton's assertion that "[t]he evidence equally supports" the two alternative scenarios she offers. With respect to the first alternative scenario─that Pearson and Coleman conspired to defraud the Kleins without Talton's participation─Talton offers the opinion testimony of Vomhoff, the more experienced of her defense handwriting experts, that the signature on the $300 check was "more consistent" with Coleman's writing sample than with Talton's. This testimony does not establish that Coleman either stole the $300 check or gave it to Pearson. Talton ignores Coleman's testimony that she (Coleman) had not met Pearson before the preliminary hearing in this matter.

With respect to the second alternative scenario─that Pearson acted alone─Talton argues, without citation to the record, that Pearson "had the opportunity" to steal the $300 check, and she was the only person who benefited from the use of that check. The People do not dispute that Pearson was in the Klein home. Poirier, the physical therapist, testified that "on a couple different occasions" he had seen someone named Margaret in the Klein home and that the name Margaret Baker or Pearson sounded familiar. When Poirier was shown a photograph of Pearson, he could not positively identify her as the woman he occasionally saw around the Klein home. Further complicating the feasibility of this scenario is the fact that defense counsel did not ask Poirier to estimate the approximate date or month that Pearson was in the Klein home. Such information would set up an appropriate timeline that would allow a reasonable trier of fact to conclude that Pearson was in the home with access to the Kleins' checkbook, around the time that the $300 check was deposited at SDG&E. Thus, we reject this theory due to a lack of substantial evidence. After reviewing the evidentiary record in the light most favorable to the judgment, and considering the strong circumstantial evidence from which a rational juror could have concluded that Talton stole the $300 check and gave it to Pearson pursuant to their conspiracy, we conclude that Talton's two alternative scenarios are not "just as plausible" as the conspiracy found by the jury.

II.

LESSER INCLUDED OFFENSE (GRAND THEFT)

Talton also argues that her conviction of grand theft (count 3) must be reversed because it is a lesser included offense to that of grand theft from an elder (count 2). The People agree that count 3 is a lesser offense necessarily included in count 2 and must be reversed.

"[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]" (People v. Lopez (1998) 19 Cal.4th 282, 288.) A defendant may not be convicted of both a greater and a lesser included offense. (People v. Pearson (1986) 42 Cal.3d 351, 355.) "Courts should consider . . . only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes." (People v. Reed (2006) 38 Cal.4th 1224, 1231.)

Under section 368, subdivision (e), a caretaker's theft from an elder person expressly incorporates as an element of the offense a violation of "any provision of law proscribing theft, embezzlement, forgery, or fraud," the theft being petty or grand depending on the amount taken.^[2]

Here, Talton could not have committed grand theft from Mrs. Klein, an elderly person, in violation of section 368, subdivision (e) (count 2) without also committing grand theft in violation of section 487, subdivision (a).^[3] Because Talton was convicted of both the greater offense of grand theft from an elder and the lesser included offense of grand theft, her conviction of the latter must be reversed. (People v. Pearson, supra, 42 Cal.3d at p. 355.)

DISPOSITION

The portion of the judgment convicting Talton of grand theft is reversed. In all other respects the judgment is affirmed. The matter is remanded to the trial court with instructions to the court clerk to (1) correct the abstract of judgment dated December 8, 2005, by deleting the portion showing that Talton was convicted of grand theft (count 3: § 487, subd. (a)), and (2) forward a copy of the corrected abstract of judgment to the Department of Corrections.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

IRION, J.

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^[1] All further statutory references are to the Penal Code.

^[2] Section 368, subdivision (e) provides: "Any caretaker of an elder or a dependent adult 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 that elder or dependent adult, is punishable by imprisonment in a county jail not exceeding one year, or in the state prison for two, three, or four years when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value exceeding four hundred dollars ($400), and by a fine not exceeding one thousand dollars ($1,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, when the moneys, labor, goods, services, or real or personal property taken or obtained is of a value not exceeding four hundred dollars ($400)." (Italics added.)

^[3] With exceptions not applicable here, section 487, subdivision (a) provides: "Grand theft is theft committed in any of the following cases: [¶] (a) When the money, labor, or real or personal property taken is of a value exceeding four hundred dollars ($400) . . . ."