P. v. Winslow
Filed 11/6/13 P. v. Winslow CA2/6
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IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
GREG LOREN WINSLOW,
Defendant and
Appellant.
2d Crim. No.
B233380
(Super. Ct. No.
2009006776)
(Ventura
County)
Greg Winslow was head
coach of the Ventura College
"Pirates" men's basketball team.
Over a four-year period, he received in excess of $60,000 in donation
checks from team sponsors. Instead of
submitting these checks to the college in accordance with a policy he helped
develop, he deposited them into a checking account he opened for his son's
youth basketball team, the similarly named "V-Town Pirates." During the same period, Winslow wrote more
than $9,000 in checks to himself, $20,000 in checks made payable to
"cash," and an $800 check to his wife. He also wrote checks to pay for repairs to
his boat and for a family vacation rental.
After Winslow was fired, he turned over $20,620 in cash he claimed to
have withdrawn from the account for a renovation of the team's locker room.
Winslow testified that
he believed his superior had authorized him to use the "off-campus"
account for Pirates donations and team-related expenditures. He admitted knowing, however, that he lacked
any authority to write checks for personal expenses. When asked why he never reimbursed the college
for the check he wrote for his family's vacation rental, he said it was because
he had spent a greater amount of his own money on team-related expenses. When asked the same question with regard to
the check he wrote for repairs to his boat, he merely offered that he "forgot"
writing the check.
A jury convicted Winslow
of misappropriation of public funds (Pen. Code,
subd. (a)), and neglecting to pay over public money (§ 425).
probation which included terms that he serve one year in county jail and pay
$45,000 in restitution. Winslow appeals,
contending the evidence is insufficient to support his conviction under section
425. Relying on Stark v. Superior Court (2011) 52 Cal.4th 368 (Stark), Winslow also contends his conviction under section 424 must
be reversed for instructional error. He further
claims the court committed reversible error by failing to sua sponte instruct
the jury that good faith/mistake of fact is a defense to the section 487 charge
of grand theft by embezzlement.
We accept the People's
concession that Winslow's conviction under section 425 must be reversed because
he does not qualify as an "officer" within the meaning of the
statute. As to the section 424 charge,
we conclude the error in failing to instruct the jury that Winslow could not be
found guilty unless he knew, or was criminally negligent in failing to know,
that he acted without legal authority (Stark,
supra, 52 Cal.4th at p. 377) is harmless in light of Winslow's admission
that he knew the checks he wrote to pay for personal expenses were
unauthorized. This admission also
renders harmless any error in failing to instruct that good faith/mistake of
fact was a defense to the section 487 charge of grand theft by
embezzlement.
STATEMENT OF FACTS
Prosecution
In 1999, Winslow was
hired by Ventura College (the College) to serve as head coach of the
"Pirates" men's basketball team (the Pirates). In the fall of 2003, Winslow and Nancy
Frederickson became the College's co-athletic directors and were overseen by
Dean of Athletics Steven Tobias.
Prior to 2004, the
policies regarding the submission of donations to the College's sports programs
and the distribution of those funds were informal and unwritten. In 2004, Winslow, Frederickson, and Tobias
developed and formalized the policies in a written fiscal policy that was
discussed at the annual coaches' meeting. Pursuant to that policy, donations are
generally made by check to the Ventura College Foundation (the Foundation) or
the Ventura College Athletic Association (the Association)
which the donation is intended. All
donations must go through the Foundation and be deposited into the trust or
agency account the College has set up for each department. As relevant here, any donations a coach
received for the Pirates were to be given to either the athletic secretary or
the student business office (SBO) for deposit into the trust account
specifically designated for the Pirates (the trust account). All such donations are considered the property
of the Ventura County Community College District (the District).
Coaches seeking access
to funds in a trust account had to submit a requisition form or utilize a
purchase requisition process as set forth by the District. Coaches also received a credit card to pay for
team travel, meals, and equipment, and a petty cash fund was available for
reimbursement of incidental travel expenses. Expenses for tournaments and for items such as
trophies and field paint were to be paid for out of the trust accounts through
the normal procurement process. If
actual expenses exceeded the amount requested, the coach could submit receipts
and request reimbursement. Winslow was
fully reimbursed for such out-of-pocket expenses on numerous occasions. All coaches were instructed that it would be a
violation of commission on athletics (COA) rules to use District funds to pay
for a student athlete's living expenses or for the repair of damage the athlete
caused to property where he or she lived.
In addition to his
duties at the College, Winslow also coached "the V-town Pirates," a
youth basketball team on which his son played. In November 2003, Winslow opened a
"booster" bank account at Commerce County Bank (CCB)
Wise Pirate Basketball Account" (the Pirate account).
the Pirate account was ostensibly opened for the V-Town Pirates, Winslow put
all of the donations he received for the Pirates into the account. From November 2003 until April 2008, he
deposited a total of $85,298 into the Pirate account. Of that total, $60,554 was from checks made
payable to either the Pirates or the College.
During the lifetime of the account, Winslow wrote checks to himself that
totaled $9,242.50. He also wrote checks
made payable to "cash" that totaled $24,270, only $3,450 worth of
which had a memo stating their purpose.
was deposited into Winslow's personal account at the bank, and a check for $800
was made payable to his wife. In July
2004, he wrote a check for $2,321.21 to pay for repairs to his boat. In February 2006, he wrote a check for $1,100
to pay for half of his vacation rental at Seacliff Beach. Another check written in March 2006 for $1,469
was written to pay off a personal loan from Wise.
In June 2005, Winslow
wrote a $307.66 check from the Pirate account to buy paint for a three-unit
rental property Winslow rented from Wise on behalf of Pirates team members. Winslow testified that he knew the College would
not approve this expenditure. In 2007,
Winslow wrote a $1,450 check from the Pirate account to pay the first month's
rent on another apartment he rented for members of the Pirates. He also wrote checks to buy mattresses for
Pirates team members.
Winslow rented the
College's gym to Gabriel Kirkham and Richard Thomas on behalf of the
"Ventura Heat" youth basketball club in violation of the College's
rules and policies. From 2005 through
2008, Thomas gave Winslow a total of $4,175 in checks that were made payable to
"Pirate Basketball" or "Ventura County Pirates." Winslow deposited the checks into the Pirate
account. In 2008, the Ventura Heat and
the V-Town Pirates co-hosted a fundraising tournament at the gym and split the
profits. At Winslow's direction, Thomas
wrote a $1,000 check to "Pirate Basketball" and a $2,600 check made
payable to Winslow.
Ricci Ruffinelli was the
Association's president and Winslow's friend.
On November 3, 2007, Ruffinelli attended a fundraiser dinner and gave
Winslow a donation check payable to the Pirates. Two days later, Ruffinelli read an article in
the Ventura County Star (the Star) disclosing that Winslow had an off-campus
account at CCB.
title="">[7]
Ruffinelli showed Tobias
a copy of the check and asked if the Foundation had an account at CCB. Tobias subsequently asked Ruffinelli to give
a copy of the check to Dr. Robin Calote, the College's president. Ruffinelli told Winslow about the request and
said he would demand the College get a subpoena if Winslow requested. Winslow declined and said, "Well, if
they know about that, then I probably need to just resign." Winslow added that the College did not allow
coaches to have off-campus accounts and that he had a good chance of losing his
job.
Joe Kreutz was the CEO
of CCB. After reading the Star article
about the Pirate account, Kreutz asked Winslow to clarify the purpose of the
account. Winslow said the account was
for the V-Town Pirates. On December 13,
2007, Winslow drafted a letter at Kreutz's request stating, "I, Greg
Winslow, am the owner of Account 101002921, which I established at County
Commerce Bank on November 25th, 2003.
The account holds only funds belonging to V-Town Pirates, an
unincorporated club basketball team operating under the AAU rules." On April 2, 2008, Winslow closed the Pirate
account at Kreutz's request with a check made payable to Winslow for the
balance of $1,522.70.
Wise testified he was
not aware of the Pirate account and did not give Winslow permission to include
his name on it. Wise did not sign the
signature card and his driver's license number, zip code, and mother's maiden
name were all inaccurately stated. In
May or June 2008, Winslow went to Wise's office and said, "Hey, Kevin,
they found the account." When Wise
said he did not know what Winslow was talking about and did not remember
opening any account, Winslow insisted that they had opened the account together
and instructed him to say as much to the Ventura County District Attorney's
(D.A.) Office. Winslow subsequently said
that he wanted Wise to tell the D.A.'s office that the check he had written him
on the Pirate account to pay off Wise's personal loan was actually for
rent. Wise pointed out that the check
was written almost a year after the Pirates team members had moved out and
reiterated that Winslow had already paid the remaining portion of the back rent
he owed.
In February 2011, D.A.
Investigator Greg Hayes received a call from Winslow's trial counsel informing
him that he would be receiving evidence from Winslow's private investigator,
Gene Thayer. Thayer subsequently gave
Investigator Hayes a sealed manila envelope containing $20,620 in cash.
Defense
Winslow testified in his
own defense. He claimed he was unaware
of any new rules or fiscal policies being enacted in 2004. He did not recall seeing the College's
written policy and denied participating in its development. He did, however, fully understand the
College's donation and procurement process and knew how to obtain money from
the trust account. He also knew he had
to obtain receipts for all expenditures.
In August 2003, Tobias
told Winslow that funding was being reduced and advised him to avoid building
up the trust account because the College "could take it." The following month, Winslow asked Tobias to
explain how he expected Winslow to keep the trust balance down. Tobias told Winslow to be creative and
finance the men's basketball program any way he could. Winslow interpreted this to mean that he
should not put the College's name on any booster account he might have. Although Tobias never actually told Winslow to
open an off-campus account, Tobias had "alluded to an off-campus
account" and the two of them had "discussed an off-campus account and
how they used to do it with football, and we discussed to not build up our
trust account." He knew the
donations to the Pirates belonged to the College and admitted that "the
whole intention of having an off-campus account [was] so the school couldn't
take it." Tobias frequently told
Winslow to "keep it on this side of the street," which Winslow
understood to mean that he should not get the College's administration
involved.
Winslow used the Pirate
account for both the Pirates and the V-Town Pirates. He wrote separate accountings on a steno pad
he kept in his office. He also had a
file in which he kept receipts for purchases he made for the V-Town Pirates out
of the Pirates account. He was unable to
produce the steno pads or the receipts because he was not allowed to take them
when he was escorted out of his office.
Pirates expenses.
Winslow deposited the
"huge majority" of fundraising revenue into the Pirate account. He did not put it into the trust account
because "you would get penalized for having a lot of money built up . . .
." By "penalized," he
meant that "big-ticket" items would be purchased with funds from the
trust account. Otherwise, Tobias would
find another source of funding.
Winslow denied trying to
keep the Pirate account a secret. He
always intended to use the account for both the Pirates and the V-Town Pirates.
When asked whether he wanted the College
to know about the account, Winslow replied that he "didn't have a thought
one way or the other." He
acknowledged that Tobias never asked him to pay for anything out of the Pirate
account and that he never wrote a single check on the account to the College.
Winslow testified that
in August 2004 Tobias told him to round up the coaches who had off-campus
accounts. Softball coach Susan Johnson
and baseball coach Don Adams accompanied Winslow to Tobias's office later that
day. Before anything was discussed,
Tobias answered a telephone call and waved them out of his office. The next day, Winslow heard Tobias ask
another coach if he had an off-campus account.
Winslow claimed that he
told several people about the Pirate account. Although he could not recall telling Alan Dikes,
knew about [the] account because it wasn't a secret."
Winslow offered
explanations for several of the checks he wrote on the Pirate account. Some of the checks he wrote to
"cash" were used for "team bonding" activities like
bowling, laser tag, movies, and meals. Winslow
wrote the $2,321.21 check for repairs on his boat and the $1,100 check for his
family's vacation rental because he did not have his personal account checkbook
with him at the time. He kept the
checkbook for the Pirate account in his basketball bag, which was all he had
with him at the time. He thought he
could pick up the boat and pay the invoice later, but the person at the counter
did not know him and would not allow him to take the boat without paying the
bill. Winslow was only five miles from
his house, yet decided not to go home and get his own checkbook because the
repair shop had stayed open after hours for him. He never reimbursed the Pirate account
because he forgot he had written the check.
At the time he wrote it, he had spent $8,000 to $9,000 of his own money
on the Pirates. He offered no
documentary proof of these expenditures.
Winslow claimed that he
wrote the $1,100 check for the vacation rental because the woman who rented the
property would not take a credit card and Winslow only had the Pirate account
checkbook with him. Winslow thought the
woman was going to hold the check until he replaced it with a personal check. After the check was cashed, he did not
reimburse the Pirate account because he had already spent thousands of dollars
of his own money on the team.
Winslow knew it was
improper to use College funds to pay for his personal expenses. He also knew he was not authorized to take
money from the College, but believed that "as a coach [he] could take
money from the men's basketball program." Winslow could not say whether he thought he
was entitled to reimburse himself for personal expenditures he made on behalf
of the Pirates, yet admitted he had done so on more than one occasion.
Winslow also knew the
College would not have authorized paying for the repair of damage to Wise's
rental property. He nevertheless wrote a
check on the Pirate account to buy paint for Wise's property because he thought
it was "the right thing to do." Winslow also knew it was a violation of COA
rules to buy mattresses for Pirates team members. Whenever Winslow wrote a check on the Pirate
account to buy a mattress for a team member, the team member gave him cash and
Winslow deposited it into the Pirate account. He also knew it would be a violation of the
rules to pay rent on behalf of any team members, and denied doing so. He merely collected rent from team members
who rented Wise's property and gave it to Wise.
When Wise required a check, Winslow kept the cash he collected and wrote
Wise a check from Winslow's personal bank account. On one occasion, Winslow paid the rent for
another apartment with a cashier's check he obtained after depositing cash into
the Pirate account and writing a check on the account.
In late 2007, Kreutz
called Winslow and asked him to come to the bank with documentation on the
V-Town Pirates. Winslow went to the bank
and gave Kreutz the team roster and a copy of its registration. Kreutz expressed concern for CCB's
shareholders due to the news stories regarding the Pirate account. To protect the bank, Kreutz asked Winslow to
sign a letter Kreutz had drafted stating that the Pirate account only held
funds belonging to the V-Town Pirates. Winslow
testified that although this statement was false, he signed the letter to
satisfy Kreutz.
Winslow challenged the
accuracy of Ruffinelli's testimony and speculated that he had conflated two or
three different conversations. When
Ruffinelli spoke to Winslow about the check in January 2008, Winslow had no
intention of resigning. He later told
Ruffinelli that he was resigning.
Winslow testified that
the $20,620 in cash he turned over in February 2011 was going to be used to
refurbish the Pirates' locker room. In
spring 2004, Tobias told Winslow the renovation would cost around $30,000 and
that Winslow was responsible for raising the money. After speaking to Tobias in spring 2004,
Winslow became "a lot more aggressive about putting money off campus"
because he "wanted to raise money to redo the basketball part of the
locker room, and [he] didn't want the school to be able to take that
money." He began withdrawing cash
from the Pirate account and storing it in a fanny pack so he could hire workers
for the refurbishing. Whenever Winslow
went to CCB to obtain cashier's checks,
"locker room fund" and placed it in the fanny pack. Winslow also put the balance of the Pirate
account (about $1,500) in the fanny pack after he closed the account.
When asked why he
withdrew cash from the Pirate account in a piecemeal fashion instead of merely
withdrawing the money when he needed it, Winslow said it was "[b]ecause my
understanding from Mr. Tobias was to not build up a large amount in your
accounts. And I knew I was going to need
cash to do the locker room fund. So I
never let the account get very big." The prosecutor asked Winslow to acknowledge
that Tobias was referring to building up money in the trust account rather than
the Pirate account, and Winslow replied, "I can't tell you what he was
referring to." Winslow later added
that "if I had a lot of money in my off-campus account, . . . then maybe
[Tobias] would ask me or require me to purchase something, you know, a large
item, ticket item ourselves instead of have the school pay for it." Winslow admitted, however, that Tobias had no
way of knowing how much money was in the Pirate account and had never asked
Winslow to pay for anything out of that account.
In August 2008, Winslow
brought the fanny pack with the money to his trial attorney's office. After meeting with his attorney, he put the
fanny pack and its contents in a fire safe at his mother's house. On February 1, 2011, Winslow took the fanny
pack and its contents back to his attorney's office and gave it to his
investigator. Winslow did not list the
money as cash on hand when he declared bankruptcy pursuant to the advice of
counsel.
On cross-examination,
Winslow testified that all of the money in the fanny pack was withdrawn from
the Pirate account and that he did not touch the money after the account was
closed in April 2008. On rebuttal, the
prosecution established that two of the bills in the fanny pack were not released
into circulation until well after the Pirate account had been closed.
Tobias testified that he
had no knowledge of the Pirate account prior to the investigation and denied
ever suggesting to Winslow that he should open such an account. Had Tobias known about it, he would have
taken action because it would be a violation of the College's policy. Although the District had the right to take
money from the trust account, it was Tobias's understanding that all donations
to the men's basketball program had to be spent on that program.
Tobias denied ever using
the phrase "keep it on this side of the street." He also denied ever discussing off-campus
accounts with any of the College's coaches.
Tobias never told anyone that former men's basketball coach Phil
Matthews had an off-campus account, and he had no reason to believe Matthews
ever had such an account. He
did
recall telling the coaches about instances where trust accounts for athletic
programs at other colleges in the state had been "raided" by the
college's leadership.
Tobias knew that one of
the college's instructors had an off-campus account for the school's cheer
squad. He believed this account was
permitted because the cheer squad is not governed by the COA and the District
did not allow any of the College's funds to be spent on the squad. Tobias also knew that women's softball coach
Susan Johnson had an off-campus account from 2002 to 2007, but the account was
for an off-campus club team and was never used for the College's team.
Tobias denied telling
Winslow he could refurbish the men's basketball locker room with funds raised
for the men's basketball program. The
College received $117 million under Measure S in 2002, and some of that money
was earmarked for the locker room.
According to Tobias, the money that Winslow had purportedly set aside
"wouldn't [have gone] very far to renovate anything in that locker
room."
title="">[11]
Dikes testified that
Tobias was present at an August 2007 dinner meeting when Ruffinelli mentioned
that Winslow had an off-campus account.
Tobias did not respond, which led Dikes to believe Tobias knew about the
account and did not object to it. A few
weeks later, Tobias told Dikes he had spoken to Ruffinelli about a donation
check that had been deposited into an off-campus account. When Dikes said he was not surprised that
Winslow had an off-campus account, Tobias asked, "You mean [Winslow] has
an off-campus account?" Dikes testified,
"if [Tobias] actually did know about this off-campus account at that time,
he should get an academy award because he absolutely
looked
shocked." Tobias got up, stomped
around, and asked, "How long have you known about this?" Dikes told Tobias that he assumed he knew
about the account because it had been mentioned during the dinner meeting. Tobias responded that he thought they were
talking about Matthews' old account.
Jeff Theiler was
Winslow's assistant coach from 2004 to 2007.
Theiler had heard Tobias say, "keep it on this side of the
street." Theiler interpreted the
phrase to mean that information should not be disclosed to the College's
administration, whose offices were across the street. Theiler also recounted the incident when
Tobias asked Winslow "to round up" everyone who had an off-campus
account. Winslow told Theiler about the
Pirate account later that same day.
Don Adams, the College's
baseball coach, had also heard Tobias use the phrase, "keep it on this
side of the street." On two
different occasions, Winslow was present when Tobias asked Adams if Adams had
an off-campus account. Adams truthfully
answered in the negative on both occasions.
Wayne Lorch, a certified
public accountant, reviewed the banking records and spoke to Winslow about the
purpose of each transaction. Based on
his examination of Winslow's personal account at CCB and Winslow's proffered
explanations with regard to various expenditures, Lorch prepared a schedule
indicating that Winslow spent $27,938.05 of his own funds on behalf of the
Pirates between December 17, 2003, and March 20, 2008. Lorch also determined that distributions from
the Pirate account on behalf of the Pirates during the same period totaled
$49,586.28. On cross-examination, Lorch
acknowledged he had not conducted an independent audit and that his conclusions
were based solely on what Winslow told him. Winslow did not offer any receipts or other
documentation from which Lorch could have determined how the cash was actually
spent. Lorch explained, "[W]e
interviewed [Winslow] to get what his explanation is of these transactions, and
. . . we relied without exception on those representations to us."
Winslow also called
several witnesses who opined he has a reputation for honesty and integrity.
DISCUSSION
I.
Winslow
claims the evidence is insufficient to support his conviction for neglecting to
pay over public money in violation of section 425 because he does not qualify
as an "officer" under the statute.
The People correctly concede the point.
Section 425 provides
that "[e]very officer charged with the receipt, safe keeping, or
disbursement of public moneys, who neglects or fails to keep and pay over the
same in the manner prescribed by law, is guilty of [a] felony." "Officer" in this context means a
"public officer," i.e., one with "a tenure of office" to which
"some portion of the sovereign functions of government" has been
delegated. (Dibb v. County of San Diego (1994) 8 Cal.4th 1200, 1212.)
It is undisputed that
Winslow was not an "officer" of the College, but was rather a mere
employee. The jury was instructed,
however, that Winslow was guilty of violating section 425 if he was either
"an officer of the school district or
other person charged with the receipt, safekeeping, transfer, or
disbursement of public money."
(Italics added.) This instruction
was erroneous. Although anyone charged
with the handling of public money can be convicted of misappropriation under
section 424, only a public officer can be convicted under section 425. Because Winslow was not a public officer, his
conviction under section 425 must be reversed.
II.
Instructional
Error
A.
Misappropriation
of Public Money (§ 424, subd. (a)(1))
Citing
for misappropriating public money (§ 424, subd. (a)(1)) must be reversed
because the court failed to instruct the jury on the scienter requirement as to
that charge. Although we agree that the
jury should have been so instructed, the error was harmless.
Section 424, subdivision
(a)(1) provides for felony punishment of a person charged with the receipt,
safekeeping, transfer, or disbursement of public moneys, who "[w]ithout
authority of law, appropriates the same, or any portion thereof, to his or her
own use, or to the use of another . . . ."
The jury was instructed that Winslow was guilty of this crime if the
prosecution proved he acted "knowingly and willfully and without authority
of law." The jury was further
instructed that "willfully" in this context "implies simply a
purpose or willingness to commit the act . . . . It does not require any intent to violate the
law, or to injure another, or acquire any advantage."
After Winslow was
convicted, our Supreme Court held that although section 424 is a general intent
crime, it requires "a broader mental state beyond a mere intent to do the
act." (Stark, supra, 52 Cal.4th at p. 395.) The court reasoned that "[w]ithout a
mental state as to legal authorization, a defendant could be convicted of
violating the section 424 provisions by simply acting or failing to act, even
if he was unaware of the facts, as defined by statute, that made his intent
wrongful." (Id. at p. 396.) Accordingly,
"the People must prove, as a matter of fact, both that legal authority was present or absent,
presence or absence." (
or criminal negligence in failing to know the legal requirements underlying the
charges. (Id. at p. 399.) "If
public officials and others entrusted with control of public funds subjectively
believe their actions or omissions are authorized by law, they are protected
from criminal liability unless that belief is objectively unreasonable, i.e.,
is the product of criminal negligence
in ascertaining legal obligations. Public
officials and others should not be criminally liable for a reasonable, good
faith mistake regarding their legal responsibilities. Nor is section 424 intended to criminalize
ordinary negligence or good faith errors in judgment." (Id.
at p. 400.)
As the People
acknowledge, Stark compels us to
conclude the jury should have been instructed that Winslow could not be found
guilty under section 424 unless he knew, or was criminally negligent in failing
to know, that he lacked the authority to commit one or more of the acts upon
which his guilt was predicated. (
64, 78-79 (Bradley).) "When, as here, the court fails to
instruct on an element of an offense, we must review the record to determine if
the error was harmless beyond a reasonable doubt. [Citation.]
The error is reversible '"unless it can be shown 'beyond a
reasonable doubt' that the error did not contribute to the jury's verdict." [Citation.]'
[Citations.]" (
Winslow contends the
jury should have been instructed "that [Winslow's] reasonable good faith
belief that he was following direction from his supervisor, Dean of Athletics
Tobias, was a complete defense because he did not have wrongful criminal intent
when he put money raised for the benefit of the Ventura College men's
basketball team in the Pirate Basketball account." He also claims the determination of his guilt
"hinges on whether [he] knew he was acting without authority to open [the
Pirate account] or whether he held a good faith reasonable belief he had such
authority."
We conclude that the
failure to instruct on the scienter requirement as to the misappropriation
charge was harmless because in testifying, Winslow effectively admitted
possessing the requisite mental state for the crime. (Bradley,
supra, 208 Cal.App.4th at p. 79, quoting People v. Nordberg (2010) 189 Cal.App.4th 1228, 1239 ["'One
situation in which an instructional error in omitting an element of an
[offense] from jury consideration may be found harmless [beyond a reasonable
doubt] is when "the defendant concedes or admits that element." . . .'"].) Winslow admitted writing two checks on the
Pirate account to pay for personal expenses.
He also admitted knowing that these transactions were unauthorized. The only reason he gave for writing the
checks was that he did not have his personal checkbook with him at the
time. Contrary to Winslow's suggestions,
it is also clear that both transactions were matters of convenience rather than
necessity. Winslow's only proffered
reason for failing to reimburse the Pirate account for the check he wrote for
his family's vacation rental was that he "forgot" writing the check. When asked why he never reimbursed the Pirate
account for the other check, he offered that he had spent a greater amount of
his own money on unreimbursed team-related expenses. When confronted with the issue, however,
Winslow expressly declined to express a belief that he was authorized to
reimburse himself in this fashion. He
also admitted reimbursing himself from the Pirate account on more than one
occasion. In light of this testimony, no
reasonable jury would have found that Winslow harbored an objectively
reasonable good faith belief that his actions were lawful.
To the extent Winslow
claimed that he intended to reimburse the College for any of these expenditures
but simply forgot to do so, the jury was correctly instructed that the
repayment of misappropriated funds is not a defense to the charge of
misappropriating public moneys in violation of section 424. "A violation of section 424 is complete
as soon as public money is willfully misappropriated to the defendant's use or
the use of another. '"[I]t is the
immediate breach of trust that makes the offense, rather than the permanent
deprivation of the owner of his property."' [Citations.]" (Bradley,
supra, 208 Cal.App.4th at p. 82.)
claim that Winslow did not know his conduct was a crime is equally
unavailing. (Stark, supra, 52 Cal.4th at p. 397.)
Bradley is instructive. The
defendants in that case were Compton's former mayor, city manager, and a city
council member, all of whom were convicted of misappropriating public moneys in
violation of section 424. The evidence
against the city manager (Johnson) included proof that he used a city-issued
credit card to rent a tuxedo while attending a conference. When the charge was questioned, the defendant
confirmed the rental was a personal expense and promised to write a check to
reimburse the city. He apparently never
did so. (208 Cal.App.4th at p. 71.) In concluding that the failure to instruct
the jury on the scienter element of section 424 was harmless as to Johnson, the
court reasoned in part that "there was evidence that Johnson admitted his
purchases were not authorized. When
questioned by [staff] about the tuxedo rental, Johnson stated that he would
have written a check if he had his checkbook, acknowledging both that he owed
the City for the expense and that the charge was not a City expense." (Id.
at pp. 79-80.)
Winslow's position is no
better. He admitted writing checks to
pay for personal expenses, and also admitted knowing he had no authority to do
so. By stating that he only wrote the
checks because he did not have his personal checkbook with him, Winslow
effectively acknowledged that he owed the College for the expense. Because the crime was completed when Winslow
gave the checks as payment for his personal expenses, his after-the-fact
attempt to justify his failure to reimburse the College is unavailing. In light of his admission that he had the
requisite knowledge, the error in failing to instruct the jury as to that
requirement was harmless beyond a reasonable doubt. (Bradley,
supra, 208 Cal.App.4th at pp. 79-80.)
Winslow argues that
notwithstanding this admission, the error in failing to instruct on the section
424 charge cannot be deemed harmless because (1) the prosecutor's closing
argument emphasized that good faith was not a defense; (2) the jury
deliberations were lengthy; and (3) the jury acquitted Winslow on the charge of
embezzlement by a public officer, clerk, or servant (§ 504). We are not persuaded. Because Winslow admitted knowing that at
least some of the transactions were unauthorized, no reasonable juror could
have found he held an objectively reasonable belief to the contrary. Given the length of the trial, the number of
charges, and the jury's acquittal of Winslow on half of those charges, there is
nothing remarkable in the fact that the jury spent eight hours deliberating.
Also unremarkable is the
fact that the jury acquitted Winslow on the charge of embezzlement by a public
officer, clerk, or servant in violation of section 504. To convict Winslow on that count, the jury
had to find that he acted with the specific intent to defraud. (CALCRIM Nos. 252, 1806.) Although the instruction states that
"[a] good faith belief in acting with authorization to use the
[appropriated] property is a defense," it goes on to provide that
"[t]he defendant may hold a belief in good faith even if the belief is
mistaken or unreasonable. But if the
defendant was aware of facts that made that belief completely unreasonable, you may
conclude that the belief was not held in good faith." (Italics added.) Section 424, by contrast, is a general intent
crime of criminal negligence; as the jury was instructed, "[n]o intent to
steal or defraud is required." A
person who acts with a good faith belief can still be found guilty of criminal
negligence if that belief is objectively unreasonable. (See People
v. Butler (2010) 187 Cal.App.4th 998, 1008-1009.) As we have noted, Winslow's admissions are
fatal to any claim he acted pursuant to an objectively reasonable good faith
belief that his actions were lawful.
Winslow admitted using
College funds to pay for personal expenses and other expenditures he knew the
College would neither reimburse nor approve.
Although he claimed that he expended a greater amount of his own funds
on expenses related to the Pirates, he did not purport to believe that he had
the right to reimburse himself for those expenditures. Moreover, he admitted having full knowledge
of the College's fiscal policies and procedures, which plainly prohibited him
from acting as he did. In light of this
evidence, no reasonable juror could have found that Winslow lacked the required
mental state to be convicted under section 424.
The error in failing to instruct the jury on that mental state was thus
harmless beyond a reasonable doubt. (
p. 79.)
B.
Grand
Theft by Embezzlement (§ 487, subd. (a))
Winslow claims the court
committed reversible error by failing to instruct the jury that good faith was
a defense to the charge of grand theft by embezzlement under section 487,
subdivision (a). We disagree.
Our Supreme Court has
recognized that "a defendant's good faith belief, even if mistakenly held,
that he has a right or claim to property he takes from another negates the
felonious intent necessary for conviction of theft or robbery." (People
v. Tufunga (1999) 21 Cal.4th 935, 938.)
A court does not have to instruct on this defense unless there is
substantial evidence "to support an inference that the defendant 'acted
with a subjective belief [that] he or she had a lawful claim on the property.' [Citation.]" (People
v. Russell (2006) 144 Cal.App.4th 1415, 1429-1430, italics omitted.)
"Substantial
evidence is evidence sufficient to 'deserve consideration by the jury,' that
is, evidence that a reasonable jury could find persuasive." (People
v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
Even assuming that there
was substantial evidence to support an instruction on good faith as a defense
to the charge of grand theft by embezzlement, the error was harmless. Although Winslow presented evidence that he acted
in good faith in depositing College funds into the Pirate account and in
withdrawing those funds for team-related expenses, he admitted that he had no
authority to use the funds to pay for his personal expenses. He also disavowed any belief that he had the
right to use the funds to reimburse himself for expenditures he had personally
made on the team's behalf. In light of
this evidence, no reasonable juror could have found Winslow acted with a good
faith belief that he had the right to use College funds to pay his personal
expenses, or for other expenditures he knew the College would neither approve
nor reimburse. Any error in failing to
instruct on mistake of fact/good faith is thus harmless under any standard of
review. (People v. Watson (1956) 46 Cal.2d 818, 836 [no reasonable probability
that error affected verdict]; Chapman v.
California (1967) 386 U.S. 18, 24 [error did not affect verdict beyond a
reasonable doubt]; see also People v.
Salas (2006) 37 Cal.4th 967, 984 [recognizing that the court has yet to
decide which harmless error standard of review applies to the failure to
instruct on an affirmative defense].)
In arguing that the
failure to instruct on the good faith defense as to the section 487 charge was
not harmless, Winslow notes that the jury acquitted him of the section 504
charge pursuant to instructions that included the defense. We can only speculate as to the reasons why
the jury acquitted Winslow on the count charging him with a violation of
section 504. As we have explained, no
reasonable jury would have found that Winslow acted in good faith in using
College funds to pay for his personal expenses.
If the jury so found here, we have no way of knowing whether that
verdict is the result of mistake, lenity, or compromise. (See People
v. Miranda (2011) 192 Cal.App.4th 398, 406.) Whatever the reason, Winslow is not entitled
to "gain further advantage" of that verdict to the extent it is
contrary to the evidence. (See
20, 33.)
DISPOSITION
Winslow's conviction for
neglecting to pay over public money (§ 425) is reversed. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P. J.
HOFFSTADT, J.
>
James P. Cloninger, Judge
Superior Court County of Ventura
______________________________
Madeline McDowell, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Marc A. Kohm, J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All further undesignated
statutory references are to the Penal Code.
guilty on charges of embezzlement by a public officer, clerk, or servant
(§ 504), identity theft (§ 530.5, subd. (a)), making a false
financial statement (§ 532, subd. (a)), forgery (§ 470, subd. (d)),
and dissuading a witness (§ 136.1, subd. (a)). The jury also returned not true findings on
allegations that Winslow took property exceeding $50,000 in value as provided
in former section 12022.6, subdivision (a)(1).
