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People v. Sisuphan

January 29, 2010


(Marin County Super. Ct. No. SC 154719 A). Hon. Kelly V. Simmons.

The opinion of the court was delivered by: Jenkins, J.


Appellant Lou Suriyan Sisuphan took almost $30,000 from his employer's safe, hoping that a co-worker would be held responsible for its disappearance and terminated. He was convicted of embezzlement (Pen. Code, § 508), and appeals from the judgment of conviction. Sisuphan contends that the trial court erred when it failed to instruct the jury that Penal Code section 512 provided a defense to embezzlement if the evidence showed: (1) that at the time he took the money, he intended to return it, and (2) that he did so voluntarily before criminal charges were filed against him.*fn1 He also asserts that the trial court erred in excluding evidence that he had fully restored the money to the company, claiming this evidence showed he never intended to keep it and therefore lacked the requisite intent for the crime. We reject these contentions and affirm the judgment.


As the Director of Finance at Toyota of Marin (the dealership), Sisuphan managed the financing contracts for vehicle sales and worked with lenders to obtain payment for these transactions. He was responsible for ensuring that the proper paperwork was completed for each sale, and he supervised two finance managers who prepared sales contracts, received payments from customers, and issued receipts for car purchases. Sisuphan complained repeatedly to management about the performance and attitude of one of the finance managers, Ian McClelland (McClelland). Specifically, Sisuphan reported that McClelland made frequent mistakes in preparing paperwork and refused to follow his direction. Errors in paperwork delay the income generated by the dealership and strain its relationships with lenders, which Sisuphan was required to maintain. General manager Michael Christian (Christian) opted not to terminate McClelland "because he brought a lot of money into the dealership."

On July 3, 2007, McClelland accepted a large payment from customer Jill Peacock for the vehicle she purchased. Peacock gave him $22,600 in cash and two checks totaling $7,275.51. McClelland prepared a receipt, placed the cash, both checks, and a copy of the receipt in a large manila envelope, and took the envelope to the company safe in Sisuphan's office. McClelland placed the envelope into the hopper at the top of the safe and turned the handle to rotate the hopper and drop its contents down into the safe. The envelope, which was stuffed with a large amount of cash, did not drop all the way down into the safe and became lodged, with a portion "sticking out." McClelland could not retrieve the envelope or push it completely into the safe, so he decided to cut it and transfer the contents to two envelopes. He paged another salesman for assistance but received no response and asked Sisuphan to keep an eye on the envelope while he went to the showroom. While McClelland was gone, Sisuphan "wiggled" the envelope free, extracted it from the safe, and kept it.*fn2 When McClelland returned, Sisuphan told him "Hey, no problem, [the envelope] dropped into the safe."

Dealership bookkeepers regularly collected payments from the safe and cross-checked these against carbon copies of the receipts in the receipt book. On the morning of July 5, 2007, one of the bookkeepers discovered in this manner that the payment for the Peacock purchase was missing. She placed a post-it note for Sisuphan on the corresponding page of the receipt book, inquiring, "Where's money?" She also notified the controller, the general sales manager, and Christian that a payment was missing. When she asked Sisuphan about the missing payment, "[h]e said they were looking into it." She asked Sisuphan about the money again on two separate occasions that day, and he gave her the same response each time.

Sisuphan was absent from work for the next 10 days (July 6-15) because his father was ill. The bookkeeper continued to leave him messages about the missing money. On July 11, 2007, she sent an e-mail to Christian, the controller, the general sales manager, and Sisuphan about "the check... that has been missing since [July 3]." Christian was initially under the impression that only a check was missing and did not learn until the week of July 11 that the purchase involved a cash payment. Realizing that the matter was more serious than he had believed, Christian followed up with the customer, made a police report, and filed a claim with the dealership's insurer. He called all the managers together and told them he would not bring criminal charges if the money was returned within 24 hours. Sisuphan learned of Christian's amnesty overture either at a meeting or in a telephone conversation, but continued to deny any knowledge of what had happened to the money. Christian notified the dealership's owner of the problem and, at his direction, hired a private investigator, who interviewed a number of employees, including Sisuphan, on July 18, 2007.

On the evening of July 18, 2007, Sisuphan met for several hours with Christian and the general sales manager, Joel Hanson (Hanson), about problems in the finance department, primarily, the accuracy of the paperwork and the dealership's relationships with lenders. They discussed concerns that sloppy management had led to the disappearance of the money and that the incident had impacted morale, causing employees to question one another. Shortly after the meeting ended, Sisuphan returned to Christian's office and admitted that he had taken the money. He claimed he had no intention of stealing it and had taken it to get McClelland fired. He said he had not returned the money during the 24-hour amnesty period because he did not believe Christian's assurance that no punitive action would be taken. Later that night, Sisuphan telephoned Hanson and confessed to him as well. He told Hanson he had taken the money to prove a point-that McClelland was "sloppy" in handling the dealership's money. Christian and Hanson trusted Sisuphan and were shocked that he had taken the money.

The next day, Christian terminated Sisuphan's employment. He prepared a separation report with a narrative that set out the events relating to the missing money and included a summary of Sisuphan's confession. Sisuphan reviewed and signed the report without making any changes and repaid the entire sum of cash he had taken. As defense counsel conceded below, however, "[t]he checks were lost [and] not returned." The customer stopped payment on both checks and reissued them.

A week later, the district attorney filed a criminal complaint against Sisuphan, asserting a felony offense of embezzlement by an employee of property valued in excess of $400 (§§ 487, subd. (a), 508, & 514) and alleging a prior assault conviction (§ 245, subd. (a)(2)) as a sentence enhancement. After waiving a preliminary hearing, Sisuphan was held to answer on this count. In February 2008, he was charged in accordance with the complaint. The matter proceeded to a jury trial on April 15, 2008, and the jury returned a guilty verdict. In June 2008, the trial court sentenced Sisuphan to 120 days in custody and three years probation. Sisuphan filed a timely notice of appeal from the judgment of conviction.


I. Section 512 Does Not Provide a Defense to Embezzlement

Relying largely on principles of statutory construction, Sisuphan contends that section 512 establishes a defense to embezzlement-a "limited amnesty" for those who intend at the time of the taking to return the property and do so before criminal charges are filed. Consistent with his interpretation of section 512, he requested a jury instruction on this purported defense and provided three proposed instructions for the trial court's consideration.*fn3 The trial court rejected his proposed instructions, concluding that restoration of the property may be considered only in mitigation of punishment. Sisuphan contends that the trial court erred in failing to instruct on a defense under section 512 and that "[this] error was exacerbated when the trial court affirmatively mis-instructed the jury": "An intent to deprive the owner of property, even temporarily, is enough. Intent to restore the property to its owner is ...

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