P. v. Smith

Filed 3/2/06 P. v. Smith CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of the County of Los Angeles, William R. Hollingsworth, Judge. Affirmed.

David L. Polsky, by appointment by the Court of Appeal under the California Appellate Project, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Supervising Deputy Attorney General, Lance E. Winters, Supervising Deputy Attorney General, for Plaintiff and Respondent.

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Defendant and appellant Craig Allen Smith (defendant) appeals his conviction by a jury of one count of attempted theft of more than $400 from an elder or dependent adult by a caretaker (Pen. Code, §§ 368, subd. (e); 664.)[1] Defendant contends there was insufficient evidence that he committed a direct but ineffectual act towards a completed theft to support his conviction for attempted theft. Specifically, he argues that the evidence showed an attempted withdrawal of funds from the victim's bank account for deposit into a joint account subject to withdrawal by both the victim and defendant, and that this evidence was insufficient to show an attempt to steal those funds. Defendant further contends the trial court committed prejudicial error by failing to instruct the jury sua sponte that the crime of theft by larceny requires a taking accomplished by a trespass and that trespass is absent if the victim consented to the taking.

We hold as follows: There was substantial evidence that defendant, with the intent to steal the victim's property, was implementing a plan to do so. The joint account defendant established with the victim was simply a vehicle for achieving that goal. The evidence was sufficient to support defendant's conviction of attempted theft from an elder. The doctrine of invited error bars defendant from challenging the trial court's failure to instruct on consent as an element of theft by larceny because defendant's trial counsel objected to the very instruction defendant claims should have been given. The trial court did not err by failing to instruct the jury that consent is a defense to theft by larceny. A duty to instruct on a given defense arises only if there is substantial evidence to support that defense (People v. Panah (2005) 35 Cal.4th 395, 484; People v. Shelmire (2005) 130 Cal.App.4th 1044, 1058), and the record discloses no substantial evidence to support consent as a defense in this case. We therefore affirm the judgment.

BACKGROUND

A. The Victim and Her Relationship with Defendant

The victim, Ann Chambers, was in her mid-80s when she met defendant, who is 36 years younger. At the time, she owned several rental properties and had more than $ 3 million in various cash accounts. Ms. Chambers lived in a condominium unit next door to her nephew, Richard Lacombe. Mr. Lacombe helped manage and maintain his aunt's properties, and often drove her to places she wished to go. Mr. Lacombe was an authorized signatory on Ms. Chambers' bank accounts pursuant to a power of attorney effective August 1998. At trial, Ms. Chambers described Mr. Lacombe as her â€