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The People v. Elizabeth Karen Loeblich

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Yolo


March 24, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ELIZABETH KAREN LOEBLICH, DEFENDANT AND APPELLANT.

Super. Ct. No. CR072775

The opinion of the court was delivered by: Mauro,j.

P. v. Loeblich CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Elizabeth Karen Loeblich was convicted of grand theft and embezzlement and sentenced to three years in state prison. She contends on appeal that the trial court failed to instruct the jury sua sponte on the affirmative defenses for "claim of right" and "mistake of fact," and also on the appropriate burden of proof.

We conclude that substantial evidence does not support sua sponte instructions for "claim of right" or "mistake of fact" defenses, and the trial court did not err in failing to instruct on those defenses or on defendant's burden of proof in connection with those defenses. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Helen Loeblich died in 2004, leaving four children: Judith, Daryl, Richard, and defendant.*fn1 Judith was executor of Helen's estate and was charged with distributing the proceeds from Helen's retirement account, various insurance policies, and stocks. Judith was charged with distributing certain stock proceeds equally to each of the 11 grandchildren.

Defendant's daughter Anastassia (also known as "Stassi") was one of Helen's 11 grandchildren. At the time of Helen's death in 2004, Stassi was 23 and living with defendant. Defendant purchased food, clothing and medication for Stassi. Stassi had cerebral palsy, epilepsy, depression and post-traumatic stress disorder. According to her sister and her doctor, Stassi functioned at a fairly high level despite her various disabilities. She learned to walk and she was mainstreamed at school. She received a certificate of completion from high school and went on to take a number of college classes. She did not do well in general education classes such as English or math, but she could balance a checkbook.

Judith distributed approximately $78,000 in stock to Stassi, depositing the stock in a Charles Schwab account in Stassi's name to make sure Stassi received it. Judith felt that Stassi was "not very good at handling money" and did not understand the value of what things cost.

Defendant maintained her own individual savings account at the Yolo Federal Credit Union. On December 24, 2004, she received her inheritance disbursement in the amount of $57,794.27, which she deposited into her savings account. As of January 31, 2005, the balance in the account was $3,054.68.

In early 2005, defendant authored a number of letters to Charles Schwab authorizing Schwab to cash out Stassi's stock and deposit the proceeds from the Schwab account into a checking account at the Yolo Federal Credit Union held jointly by defendant and Stassi. She told Stassi to sign the letters because she needed the money. Afraid to say no because defendant often got angry and yelled at her and said terrible things to her, Stassi signed the letters authorizing the transfer of funds.

Using money from the joint checking account, defendant made numerous purchases of antiques, fine art and jewelry from Clars Auction Gallery (Clars), an auction house she frequented on a regular basis. Stassi did not want defendant to purchase antiques with money from the account, and did not consent to her doing so. Nonetheless, defendant spent large amounts (e.g., $14,724.45, $5,978.70 and $8,079.58) at Clars for items including glass and silver vases, frames, sterling silver compotes, a leopard coat, garden statues, paintings, figurines, and furniture.

Between February 2005 and June 2006, defendant made numerous transactions using checks and cash drawn from the joint checking account, many of which Stassi had not authorized. During that time period, the balance in Stassi's Charles Schwab account went from $44,000 to $40.19. Defendant told Julie Harlow, an acquaintance from church, that she was spending down Stassi's account as fast as she could, explaining that she was buying antiques with Stassi's money to "protect" Stassi's assets. A representative from Clars would later testify that antiques are not a safe alternative to the stock market and they do not operate as an asset shelter.

In February 2005, Julie reported that Stassi's living situation was unsafe, observing that Stassi had no access to a telephone and there were places in the home where she could not maneuver due to objects in her way. Julie undertook efforts to help Stassi by contacting Judith to set up a special needs trust for the remainder of Stassi's inheritance and by looking into ways to recover the portion of Stassi's inheritance spent by defendant.

In August of 2005, Stassi moved out of defendant's home and in with Julie. Defendant became enraged when she learned that Stassi would not be returning home. She went to Julie's home and tried to enter the house, but Julie locked the door and called 911.

The next day, Stassi and Julie went to defendant's home to retrieve Stassi's belongings. Julie, who was not permitted to enter the house, could hear Stassi and defendant yelling inside. Later, with Julie's assistance, Stassi contracted with a trust management service to receive her monthly income and pay her bills.

When Stassi learned there was no money left in the Schwab account, she and Julie sought advice from attorneys.

Defendant was charged in count 1 of the first amended information with theft or embezzlement from a dependent adult by a person who is a caretaker (Pen. Code, § 368, subd. (e)),*fn2 and in counts 2, 3, 4 and 5 with grand theft (Pen. Code, §§ 484, subd. (a), 487, subd. (a)). A jury convicted her on counts 1, 2, 3, 4 and 5. The court sentenced defendant to three years in state prison and imposed fees and fines, including victim restitution in the amount of $87,379.89.

Defendant filed a timely notice of appeal.

DISCUSSION

I Defendant contends the trial court erred in failing to instruct the jury sua sponte on the affirmative defenses of "claim of right" and "mistake of fact."

We review challenges to jury instructions de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We reverse only if there is a reasonable probability that had the court given the instruction at issue, the result would have been more favorable to the defendant. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)

A Regarding the "claim of right" instruction, defendant contends the trial court should have instructed the jury sua sponte that her "bona fide belief of a right or claim to the property taken . . . even if mistaken . . . negates the element of felonious intent," and further that her belief in the mistaken facts "need not be reasonable."

The trial court has a duty to instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Earp (1999) 20 Cal.4th 826, 885.) "Included within this duty is the '. . . obligation to instruct on defenses, . . . and on the relationship of these defenses to the elements of the charged offense . . .' where '. . . it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense . . . .' [Citation.]" (People v. Stewart (1976) 16 Cal.3d 133, 140 (Stewart); see also People v. Shelmire (2005) 130 Cal.App.4th 1044, 1058-1059 [the court's duty to instruct sua sponte on a defense only arises if there was substantial evidence supportive of the defense].) Substantial evidence is "evidence which is reasonable, credible, and of solid value." (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not consider the credibility of witnesses in determining whether there is substantial evidence. (People v. Elize (1999) 71 Cal.App.4th 605, 615.)

The California Supreme Court explained 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 the "claim of right" 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.)

Here, defendant contends there was substantial evidence to support an instruction on the "claim of right" defense because the evidence showed she "had a good faith belief in her right to spend her daughter's funds, that she believed Stassi was capable of consent, and that [defendant] was authorized by Stassi's actions to convert Stassi's money into other assets or spend those funds on their mutual upkeep." According to defendant, she told Stassi she was using Stassi's money to buy antiques in order to protect Stassi's assets, that Stassi would get the house and everything in it when defendant dies, and that defendant "openly discussed" spending down Stassi's account. Defendant claims Stassi never objected and, in fact, expressed gratitude when defendant delivered some of Stassi's belongings to Julie's house.

Defendant further points to the following: that Stassi attended antique auctions with defendant and kept track of bids defendant made; Stassi was not good at handling money but understood she had stocks in a Schwab account and understood that her signature on the letter to Schwab gave Schwab permission to transfer the stock proceeds to the joint account; Stassi was not under a conservatorship or a guardianship, and there "were no legal restrictions" on the joint account; that Schwab verified letters signed by Stassi by calling Stassi; Stassi got good grades in high school, took Japanese, and went to the senior prom; Stassi fought with defendant and was able to yell at her and say "no" to her; Stassi had a cell phone and was able to write some of her own checks; Stassi knew defendant paid for many of the things Stassi needed, such as medical insurance, food, and the mortgage on the house in which Stassi "had a room, a bathroom, and pets"; and Stassi was competent to close the joint checking account and pay for her books at college using a voucher.

The foregoing assertions do not provide substantial evidence of defendant's good-faith belief in her claim of right to the property. At most, these assertions suggest that Stassi may have had the capacity to understand what was happening with her property and the opportunity to object. But the overwhelming evidence in the case indicates that defendant did not have a good-faith belief in her claim of right to the property. There was substantial evidence that Stassi had cerebral palsy, epilepsy, depression and post-traumatic stress disorder. Although she functioned at a fairly high level, she did not do well in general education classes such as English or math. Judith felt that Stassi was "not very good at handling money" and did not understand the value of what things cost. Nonetheless, defendant told Stassi to sign the transfer letters she authored because defendant needed the money. Stassi was afraid to say no because defendant often got angry and yelled at her and said terrible things to her. Stassi did not want defendant to purchase antiques with money from the account, and did not consent to her doing so. But defendant told Julie that she was spending down Stassi's account as fast as she could. A representative from Clars testified that antiques are not a safe alternative to the stock market and they do not operate as an asset shelter. Julie eventually felt that Stassi's living situation was unsafe. Julie undertook efforts to help Stassi by contacting Judith to set up a special needs trust for the remainder of Stassi's inheritance and by looking into ways to recover the portion of Stassi's inheritance spent by defendant. Defendant went to Julie's home but Julie locked the door and called 911. Later, Julie heard defendant and Stassi yelling at each other. This record does not provide substantial evidence that defendant had a good-faith belief in a claim of right to the property.

Moreover, the record establishes that even if the sua sponte instruction had been given, the result would not have been more favorable to defendant. (People v. Whisenhunt, supra, 44 Cal.4th at p. 214.) The jury found defendant guilty on counts 1, 2, 3, 4 and 5, even though the trial court instructed the jury on the elements of the lesser-included crime of grand theft by embezzlement, including the following: "A good faith belief in acting with authorization to use the property is a defense. [¶] In deciding whether the defendant believed that she had a right to the property and whether she held that belief in good faith, consider all the facts known to her at the time she obtained the property, along with all the other evidence in the case. The 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. [¶] An intent to deprive the owner of property, even temporarily, is enough. Intent to restore the property to its owner is not a defense."

The foregoing instruction directed the jury that defendant's belief of a right or claim to the property, even if mistaken and even if unreasonable, negates the element of felonious intent. We assume the jury followed the instructions given and nonetheless found against defendant.

Defendant cites Stewart, supra, 16 Cal.3d at pages 139-140, to advance her contention that the trial court's duty was not simply to instruct the jury on the "claim of right" defense, but to "instruct sua sponte on 'the defense of claim of right under [Penal Code] section 511.'"*fn3 But Stewart contains no such requirement. The defendant in Stewart was convicted of grand theft in connection with numerous checks he wrote on his employer's account. (Stewart, supra, at pp. 136-137.) At trial, the defendant's only defense was that he "was actually authorized, or, alternatively, possessed a good faith belief that he was so authorized, to appropriate corporate funds in the manner disclosed in the record." (Stewart, supra, at p. 140.) The jury was instructed with general instructions defining fraudulent intent. (Id. at pp. 141, 142.)

In Stewart, the Supreme Court merely concluded that "the trial court was under an obligation to give, sua sponte, a correct instruction setting forth the general theory relied upon by defendant," and "[t]he failure to give proper instructions necessary for the jury's consideration of the proffered defense constituted prejudicial error." (Stewart, supra, 16 Cal.3d at pp. 140, 142.)

Here, unlike in Stewart, substantial evidence did not support a sua sponte instruction on the "claim of right" defense, and even if the instruction had been given it is not reasonably probable that the result would have been more favorable to defendant. The trial court did not err.

B Defendant further contends that the trial court failed to instruct the jury sua sponte on "mistake of fact" because the jury could have concluded that she "acted under a reasonable belief that she was supporting Stassi and Stassi's needs, that she had consent to use Stassi's money to do so, and that she was authorized to make financial decisions about the best use of those funds and in Stassi's best interests." Again, we find no error.

An act committed under a mistake of fact which disproves any criminal intent is not a crime. (See Pen. Code, § 26, class Three.) However, the failure to instruct on a defense -- sua sponte or even at the defendant's request -- is not error if there was no substantial evidence supporting the defense. (See People v. Rivera (1984) 157 Cal.App.3d 736, 743.)

To demonstrate that there is substantial evidence to support a "mistake of fact" defense, defendant incorporates by reference the same evidence proffered to support her "claim of right" defense. We have already concluded that there is no substantial evidence showing a good-faith belief by defendant that she had a claim of right to the property. Likewise, there is no substantial evidence that she held a "mistaken" belief regarding her entitlement to the property. And again, it is not reasonably probable that the result would be more favorable to defendant had the sua sponte instruction been given. The trial court did not err in failing to instruct sua sponte on "mistake of fact."

II Defendant next contends that the trial court failed to instruct the jury regarding her burden of proof on the defenses of "claim of right" and "mistake of fact." Once again, we disagree.

"The court on all proper occasions shall instruct the jury as to which party bears the burden of proof on each issue and as to whether that burden requires that a party raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt." (Evid. Code, § 502.) But the trial court is only required to instruct on the defendant's burden of proof regarding a defense if substantial evidence supports the defense. (People v. Shelmire, supra, 130 Cal.App.4th at p. 1054 (Shelmire).)

Here, the jury was instructed on defendant's presumption of innocence, on the People's burden of proof of defendant's guilt beyond a reasonable doubt, and on the People's burden to prove each element of each crime beyond a reasonable doubt. As explained above, however, there was no substantial evidence to support sua sponte instructions on "claim of right" or "mistake of fact." Accordingly, the trial court did not err in failing to instruct sua sponte on defendant's burden of proof regarding those defenses. (Shelmire, supra, 130 Cal.App.4th at p. 1059.)

DISPOSITION

The judgment is affirmed.

We concur: BLEASE , Acting P.J. ROBIE ,J.


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