The opinion of the court was delivered by: Mauro,j.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Sean Julian Lewis, a former City of Sacramento police officer, of grand theft. (Pen. Code, § 487, subd. (a).) The trial court suspended imposition of sentence and granted defendant probation. On appeal, defendant contends the trial court misinstructed the jury that the intent required for theft could be formed after the defendant acquired property from the victim. The Attorney General concedes that the trial court prejudicially misinstructed the jury. We will accept the concession and reverse defendant's conviction.
Moreover, because of the possibility of a retrial, we also address a second issue briefed by the parties. Defendant contends his statements to interrogating peace officers should have been excluded based on the protections afforded by the Public Safety Officers Procedural Bill of Rights Act (POBRA). (Gov. Code, § 3300 et seq.) Specifically, he argues that the failure of his interrogators to advise him of his rights under POBRA rendered his statements involuntary. The record, however, does not support the contention that his statements were coerced. We will conclude that the trial court did not err in denying defendant's motion to exclude the statements.
Victim Maria S. had an intimate relationship with defendant after she separated from her husband. On January 11, 2008, she withdrew $50,443 from her bank account based on the understanding that she would not qualify for Medi-Cal coverage for her children if she disclosed the money. Defendant offered to hold her money in a savings account, and the victim gave defendant the cash. The victim asked defendant to give her a receipt so she could claim the money in case he were killed on duty, but defendant never gave her one.
The victim became concerned because defendant did not return her telephone calls for several days, and when he did call her back and she asked him to return her money, he said he had to give it to her in increments of $9,900, so as not to "flag the IRS" by large withdrawals. Within a month of receiving the victim's money, defendant gave her some money back on three occasions, twice in the amount of $9,900, and once in the amount of either $9,400 or $9,500.
The victim contacted defendant about her money several times, but he made excuses. On March 5, 2008, he sent her a text message claiming that child support garnished all but $5,000 in his bank account. A copy of that text was introduced at trial.
The victim contacted the police, who arranged for her to make a monitored telephone call to defendant on April 16, 2008. According to a transcript of the call, the victim said, "I just need to know when you're going to give me back my twenty thousand, Sean. I need, I need, I really need my money back. . . . It's a fricken lot of money. When are you going to give it back?" Defendant answered: "You act like I have it." The victim reminded defendant that he previously told her child support took the money but left him $5,000; the victim asked where the $5,000 was, that it would be "a start of paying me back." Defendant answered: "Yes, you're right" and "I will get it to you as soon as possible." But the victim never got the rest of her money.
Defendant's former wife testified defendant had always been current in his child support obligations, and a payroll employee testified defendant's child support payments were deducted automatically from his paychecks. A search on April 16, 2008, revealed a shoebox in defendant's closet containing $1,600.
Peace officers questioned defendant on April 16, 2008, and a recording of the interrogation was introduced as evidence. According to a transcript, defendant admitted that the victim gave him $50,000 in cash to hold for her, but claimed that when he found out she had done so in order to obtain some kind of public assistance, he returned it to her in one lump sum within a couple of days. She then began calling him demanding the money, and he repeatedly told her he had returned it and did not have it. Defendant stated that his child support was deducted from his paychecks, and his bank account had never been seized. During the interview, after the police played a recording of the pretext call the victim had placed and asked defendant to explain his answers, he stated he was just trying to appease her to get her off the telephone, because she called him so often. Later the officers confronted defendant with his text message saying that child support took his money except for $5,000; defendant explained that was just something he said to get her to leave him alone.
The day defendant was arrested, April 29, 2008, he signed a document resigning from the police ...