P. v. Watkin

Filed 10/17/06 P. v. Watkin CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Marc Allen Watkin appeals from judgment entered after a jury found him guilty of embezzlement for failing to return a rental car. He contends there is no substantial evidence that he intended to injure or defraud the victim, and that the prosecutor engaged in misconduct during argument to the jury. We disagree and shall affirm the judgment.

Factual and Procedural History

Defendant was charged by information with embezzlement (Pen. Code,[1] § 504a - count one), unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a) - count two), and carrying a loaded firearm (§ 12031, subd. (a) - count three). He eventually pleaded no contest to count three, and count two was dismissed at the close of the prosecution’s case for insufficient evidence. The evidence with respect to the embezzlement charge may be summarized as follows.

On December 14, 2004, defendant rented a Cadillac Deville from Enterprise Rent-A-Car (Enterprise) in Antioch, California, utilizing a Wells Fargo credit card for payment. In entering the transaction, defendant provided Enterprise with his driver’s license, the address and phone number of his permanent address in San Francisco, the address and phone number of the Antioch Ramada Inn where he was temporarily staying, and the telephone number of his parents who lived in Fresno. Under the terms of the rental agreement, defendant was to return the vehicle on December 18, and Enterprise was authorized to bill his credit card for any charges incurred beyond the initial four-day rental. The rental agreement contained the following paragraph, taken verbatim from Vehicle Code section 10855: “Whenever any person who has leased or rented a vehicle willfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be presumed to have embezzled the vehicle.”

On December 20, two days after defendant was to have returned the vehicle, he telephoned Enterprise and requested an extension on the rental until December 21. The Enterprise employee with whom he spoke agreed to the extension and noted the change in the computerized records.

Defendant again failed to return the vehicle on the extended due date. Enterprise employees attempted to contact him over the next several weeks. On December 22 and 23, 2004, the Enterprise employee from whom defendant had originally rented the car called and left messages at each of the contact telephone numbers defendant had provided. She left one message with a man who answered the telephone at his parent’s home in Fresno. The branch manager similarly tried to contact defendant by telephone on January 13 and February 22, 2005. On both occasions he was unsuccessful and on February 22 he drove to defendant’s San Francisco neighborhood in an attempt to find the car. Unable to locate the vehicle, he left his business card wedged into the front door of defendant’s apartment.

An Enterprise Loss Control Specialist repeatedly called defendant’s phone numbers between February 4 and February 15, 2005. On February 15, for example, she telephoned defendant’s Fresno contact number and told the woman who answered the phone that she was from Enterprise and that it was imperative that she speak with defendant. On February 14, she mailed a demand letter by certified mail to defendant’s San Francisco address notifying him that he was no longer authorized to use the vehicle and reiterating the rental contract language that failure to return the car within five days of the due date would constitute embezzlement. On February 16, she sent another demand letter by certified mail to the Fresno address provided by defendant. She confirmed that both of these demand letters had been delivered.

On February 27, an Antioch police officer on routine patrol observed in a stall at the Heritage Inn in Antioch a Cadillac matching the description in a stolen vehicle report. The car was recovered that day and defendant was arrested.

Defendant testified that he lived in San Francisco for many years, but that in late 2004 he considered moving to Antioch. On December 14, 2004, he took a train to Antioch, checked into the Ramada Inn, and rented the vehicle in question at the Enterprise office. He testified that although the initial rental period was four days, he was told by an Enterprise employee that his credit card would be charged if he kept the car longer. Consequently, he believed he could keep the car for as long as he liked. Defendant further testified that over the next several weeks he called Enterprise repeatedly and asked to extend the rental period. On each occasion, according to defendant, the Enterprise clerk approved the extension and told him that his credit card would be charged. Defendant testified he called Wells Fargo three times (in December 2004, and January and February of 2005) to determine whether payments had been made to Enterprise on his behalf.

Defendant spent much of January looking for work and visiting friends in the Antioch area. He testified that he moved from the Ramada Inn, where he had told Enterprise he would be staying, to the nearby Heritage Inn because it was a “better hotel” with “bigger” rooms. On cross-examination, defendant said that he lived alone in San Francisco, and that he had first checked into the Ramada Inn on the day he rented the vehicle. He insisted that Enterprise employees had repeatedly assured him that he could keep the car as long as he wanted and that Enterprise would charge his credit card for the additional usage. Defendant said that although he spent much of his time in Antioch in late 2004 and early 2005, he occasionally returned to his San Francisco apartment to pick up clothing and to check the mail.

Defendant initially said he used the telephone in his room at the Ramada Inn when he called Enterprise and Wells Fargo. He also testified that he had not called his parents at any time when he was in Antioch. However, on cross-examination defendant acknowledged that he may have called his parents from his hotel room, and that he might have called Enterprise and Wells Fargo from a pay phone.

Defendant further testified that when he called Wells Fargo to check his credit card transactions, he was not told of any problem with the account. The manager of the Concord branch of Wells Fargo bank confirmed from defendant’s credit card records that between December 22, 2004, and February 9, 2005, Well Fargo had made payments totaling $3,150 to Enterprise on defendant’s behalf.[2] On cross-examination, the branch manager acknowledged that his records would not indicate instances in which payment authorization had been denied.[3]

On rebuttal, a sales manager for the Ramada Inn testified that defendant had made telephone calls from the hotel as early as December 10, 2004, and that the hotel records indicated he had called his San Francisco apartment four times: on December 28 and 30, 2004, and on January 3 and 12, 2005. The sales manager also stated that she had spoken to defendant three times and that she eventually ordered him to leave the hotel because other guests had complained about noises from his room.

The manager of the Antioch Heritage Inn testified that hotel records showed that defendant made 17 phone calls from his hotel room between January 31, 2005, when he checked in, and February 27, 2005, when he was arrested. No calls were made to the Enterprise office and one nine-minute call was made to the home of defendant’s parents in Fresno.

Prior to trial, defendant requested that the court redact the paragraph concerning Vehicle Code section 10855 before admitting the rental agreement into evidence. Defendant argued that the language would “have the tendency to confuse the jury or to kind of change the scope of what the jury is supposed to be focusing on.” The trial court denied defendant’s request, observing that the terms of the contract and defendant’s awareness of those terms were important issues.

The prosecutor later requested a special jury instruction reciting the section 10855 paragraph. The trial court refused to give such an instruction in light of Carella v. California (1989) 491 U.S. 263, in which the United States Supreme Court held Vehicle Code section 10855 to be unconstitutional because it created a mandatory rebuttable presumption of guilt. Defendant requested the court to prohibit the prosecutor from making any reference to section 10855. The court cautioned the prosecutor not to argue that the paragraph correctly reflected the law of California, but permitted the prosecutor to read to the jury any language from the rental agreement and to argue that the paragraph was relevant to defendant's knowledge and understanding of the contract.

In closing argument, while discussing the evidence tending to show that defendant had wrongfully retained the vehicle, the prosecutor argued: “I really wanted to emphasize this point. It’s not their burden. [Defendant is] the one that’s supposed to return this car. It’s not up to them, it is to him. He agreed and signed this contract to return this vehicle. And how do you know he knew? How do you know that he knew he was supposed to return this vehicle? Of course, there’s the contract. But if you read this contract there’s a point where he signed and he acknowledges that he read this entire agreement. He agreed with it, and he understood it. What else put the defendant on notice? This is the language that was included in the four demand letters and the contract, and the fact that Samantha, she said she went over the contract, the whole contract with him. So the defendant was well aware of this. And just to give you a precursor, you’re not going to see this in the jury instruction packet. This is something just to put him on notice. It’s not a law that necessarily applies in this case. It’s more in the broader sense, hey, listen, he knew what was going on, and he knew he was supposed to return this vehicle. And it told him repeatedly in those letters, and on the contract they went over with him, that whenever any person who has leased or rented a vehicle, willfully and intentionally fails to return the vehicle to its owner within five days after the lease or rental agreement has expired, that person shall be presumed to have embezzled the vehicle. That’s what he was notified of, and that’s what put him on notice, that just hammers it home, hey, you have to return this vehicle.”

Defendant was found guilty of embezzlement and placed on probation for three years. He filed a timely notice of appeal.

Discussion

I. Defendant’s Conviction for Embezzlement is Supported by Substantial Evidence

The Penal Code defines embezzlement as “the fraudulent appropriation of property by a person to whom it has been intrusted.” (§ 503.) Section 504a further provides that “[e]very person who shall fraudulently remove, conceal or dispose of any goods . . . leased or let to him by any instrument in writing . . . knowing them to be subject to such lease . . . 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.” The intent to deceive for the purpose of injuring or defrauding the rightful owner is thus a necessary element of the offense. (People v. Eddington (1962) 201 Cal.App.2d 574, 577-578; People v. Swenson (1954) 127 Cal.App.2d 658, 663.)

Defendant contends that there is insufficient evidence to support the finding of fraudulent intent. “ ‘ “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.” ‘ “ (People v. Hill (1998) 17 Cal.4th 800, 848-849.) “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.” (Id. at p. 849.)

Defendant concedes that he concealed the vehicle’s location from its rightful owner and that he did not have Enterprise’s permission to retain the car for the two-month period. Defendant argues, however, that the vehicle was used for “the very purpose for which it was originally ‘entrusted,’ “ that is, as a rental vehicle. He points out that there is no evidence that he “ever attempted to transfer title to himself or to any other person, that he ever relinquished or abandoned possession, that he altered the vehicle’s appearance or license plates in any manner, or that he removed it from the area in an apparent effort to avoid future discovery.” He asserts that the evidence establishes that he merely failed to notify Enterprise where the the car was located, and the fact that Enterprise received some reimbursement belies the inference that he intended to defraud the company. At most, he argues, the evidence reflects an intent to breach the terms of his rental agreement.

We reject defendant’s characterization of the evidence for several reasons. Defendant initially rented the vehicle for four days, from December 14 to 18, 2004, and it was undisputed that he received verbal authorization to keep the vehicle until December 21. However, contrary to defendant’s testimony that he received approval to retain the car beyond that date, the testimony of Enterprise employees provided substantial evidence that he never received such authorization. While the mere failure to return Enterprise’s vehicle by the due date is insufficient to establish the requisite intent, defendant was not simply delinquent by a day or two, but by more than two months. Moreover, the record is replete with evidence of attempts to notify defendant of the need to return the car. The Enterprise employee from whom defendant had originally rented the car, the Enterprise branch manager, and the Enterprise loss control specialist all testified that they repeatedly attempted, through phone messages, mailings, and home visits, to contact defendant in order to demand return of the vehicle. These messages were left in ways from which the jury was entitled to infer that defendant must have received some, if not all, of them. This inference was strengthened by defendant’s admission that he occasionally returned from Antioch to his San Francisco apartment to check his mail, the evidence that defendant called his San Francisco apartment at least four times from Antioch, and testimony refuting his assertion that he had not called his parents’ home where messages for him had been left. From this evidence, the jury could reasonably find that defendant knew he was not entitled to retain possession of the car and that he was intentionally withholding it in defiance of the owner’s demand that he return it. (See People v. Baker (1923) 64 Cal.App. 336, 342 [embezzlement of automobile established where evidence “sufficient to warrant the inference that appellant converted the car to his own use in a manner and for a purpose inconsistent with the owner’s rights and inconsistent with the nature and purposes of the bailment, and that he did so with a fraudulent and felonious intent”].)

Defendant’s emphasis on the fact that he took no affirmative steps such as transferring title or altering the vehicle’s appearance or license plates, while perhaps relevant, hardly establishes that he was not intentionally disregarding Enterprise’s demands that he return the car. (See People v. Riley (1963) 217 Cal.App.2d 11, 17 [embezzlement occurs “when one receives property lawfully by virtue of the fact that it is entrusted to him, and thereafter he violates his trust and fraudulently converts the property . . . to a use not authorized by the owner”].) The car was discovered by a police officer parked at a location which defendant never disclosed to Enterprise, providing further support for the finding that defendant intentionally withheld the vehicle. (Cf. People v. Eddington, supra, 201 Cal.App.2d 574.) That defendant’s credit card was charged for 67 of the 75 days that he possessed the vehicle does not negate the offense since the rental contract required not simply payment but that defendant return the car by the specified due date. Moreover, defendant’s testimony that he was unaware that numerous charges on his credit card had been declined provides further reason to disbelieve his assertion that he checked regularly to be sure that Wells Fargo was making all necessary payments to Enterprise on his behalf.

In short, there is substantial evidence to support the jury’s finding that defendant knew he was not entitled to retain the car and had the necessary intent to injure and defraud Enterprise.

II. The Prosecutor Did Not Commit Misconduct

Defendant argues that the prosecutor’s reference during closing argument to the contract provision concerning Vehicle Code section 10855 rendered his trial fundamentally unfair by creating the erroneous impression that the jury could presume fraudulent intent based solely upon his failure to return the vehicle. Defendant argues that, as a result, it is entirely possible that the jury convicted him based solely upon his failure to return the vehicle prior to the expiration of the rental contract in violation of Carella v. California, supra, 491 U.S. 263.

This objection was not raised in the trial court and therefore has been waived. “ ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ “ (People v. Hill, supra, 17 Cal.4th at p. 820.) The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity through admonition of the jury, to correct any error and mitigate any prejudice. (People v. Williams (1997) 16 Cal.4th 153, 254.) The one exception to this rule excuses a failure to object if an objection would be futile. (People v. Hill, supra, at p. 820.) Defendant argues that “the trial court’s refusal to sustain other objections to the district attorney’s arguments established the futility of making additional ones.” However, the trial court had cautioned the prosecutor not to suggest that the reference to section 10855 in the rental agreement correctly stated the law of California. Were there a need to correct any misimpression created by the prosecutor’s argument, the trial court provided no reason to assume that an objection would not have been sustained and an admonition given.

Regardless, defendant’s claim lacks merit. “ ‘Improper remarks by a prosecutor can “ ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.’ “ [Citations.] ‘But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ “ ‘ “ (People v. Earp (1999) 20 Cal.4th 826, 858.) Here, the prosecutor did not engage in anything close to deceptive or reprehensible conduct. To the contrary, the prosecutor adhered to the trial judge’s limitation, clarifying to the jury that the reference in the rental agreement to Vehicle Code section 10855 was evidence of the notice that defendant received, not an instruction on the law that applied to this case. The prosecutor referred to the language in the contract to refute the defendant’s assertion that he believed for a span of two months that he could keep the vehicle as long as he liked. The evidence was properly considered for this purpose and the prosecutor engaged in no misconduct.

Disposition

The judgment is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Parrilli, J.

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Analysis and review provided by El Cajon Property line attorney.

[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] At the contract rate of $46.99 per day, these charges covered 67 of the 75 days that this vehicle was in the defendant’s possession.

[3] According to another bank employee, Enterprise received payments for charges on defendant’s credit card in an amount totaling $3,150 as of February 13, 2005, for transactions occurring between December 22, 2004, and February 9, 2005. Additional credit card charges were attempted but declined between February 7 and February 24, 2005, but defendant’s credit card was billed for an additional $200 by Enterprise on February 28, 2005. Defendant testified that he did not remember ever being informed by Wells Fargo that his credit card had been declined.