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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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