(Super. Ct. No. SF104588A)
The opinion of the court was delivered by: Butz , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Colleen Agnes Benton of theft from an elder (Pen. Code, § 368, subd. (d)),*fn1 committing a burglary while the victim was present in the home--a finding that made the offense a violent felony--(id., §§ 459, 667.5, subd. (c)(21)), and resisting a peace officer (id., § 148, subd. (a)(1)). It also sustained an allegation that defendant took more than $100,000 in money from the victim, but did not sustain an allegation that she took more than $150,000. (Id., § 186.11, subd. (a)(3).) Defendant had earlier entered a plea of guilty to possessing drug paraphernalia. (Health & Saf. Code, § 11364.) The court struck the valuation finding for insufficient evidence and sentenced defendant to state prison for four years, noting that Penal Code section 654 precluded punishment for the elder theft conviction, but imposed concurrent terms for all four offenses. The court limited defendant's presentence conduct credits to 15 percent of actual custody (id., § 2933.1, subd. (a) [which imposes this limitation where there is a conviction for a violent felony, regardless of any other provision of law]).
On appeal, defendant contends the trial court erred in admitting a videotaped interview with the victim. She argues the evidence is legally insufficient to support the burglary verdict because she did not complete the target crime of theft within the victim's home. She claims the facts underlying the burglary are not within the "intent" of the voters who amended the categories of violent felonies, and therefore it does not come within the statute. Finally, she maintains (and the People concede) that the trial court erred in imposing a concurrent term for the theft conviction under section 654, rather than imposing a stay on the sentence because it arose out of a single course of conduct that included the burglary. We agree as to the final point and shall affirm the judgment as modified, as well as direct the trial court to correct an error in the abstract of judgment regarding defendant's conduct credit.
The victim, Harold Willis (Willis or the victim), was born in 1919, and admitted to the California State Bar in 1946. Primarily a probate lawyer, Willis was also general counsel for a hospital and sat on its board. Defendant began working for Willis in 1998 as his legal secretary at a salary of $1,400 per month.
Willis had never married or had children, but around 2000, then in his 80's, his relatives and others noticed his mental functioning began to deteriorate, particularly after the death of his brother-in-law in 2003. The hospital relieved Willis of his position as general counsel in 2002 as a result of his declining performance, and, then 85, he was not renominated to its board in 2004. He told a long-time social companion that even though his law practice was losing money, he did not want to close it. She thought he enjoyed the prestige of being the longest practicing attorney in the area. Willis also resisted the urgings of his relatives to close his practice.
After injuring his back in February 2005, Willis was essentially bedridden and never returned to his office. His doctor detected a significant overall decline after this point. An attorney friend did not believe Willis had any grasp of what was happening at his office, which Willis admitted he had not visited in six months. The friend was disturbed when Willis told him his secretary, defendant, was continuing to bring him papers to sign. When his friend told Willis he had stopped by the office and there did not seem to be any work going on, Willis said he was supporting the office from his savings.
A homecare service worker assigned to Willis testified Willis was in an extremely confused mental state by 2006. Defendant continued to bring checks for Willis to sign and discussed his finances with him. Willis's social companion, who visited him shortly before he was moved to a nursing home in August 2006, saw defendant's boyfriend, Kurt Edwards, bring checks for Willis to sign. She thought this odd because Willis was not going to the office any longer. Co-defendant Edwards, who had pleaded guilty to elder theft, testified that he had worked as a process server for Willis, but by 2006 he was providing him with supportive services in his home. Edwards observed defendant bring Willis legal papers and checks to sign. Edwards admitted receiving more money from Willis than he was due for his services.
Willis's nephew noticed bank deficiency notices when he was making repairs in Willis's home in early June 2006. He and his sister took Willis to the bank the next day to go over the accounts. After a review of the amount of money spent on the law office, Willis at last agreed to close it. His niece contacted the police, and provided bank statements for a period from 2005 to 2006. An officer took Willis's statement in July 2006. The police videotaped a September 2006 interview with Willis at his nursing home. Willis died a few months before the 2009 trial.
An investigative auditor determined that in 2005 and 2006, checks payable to defendant (which she presented at the bank for cash) totaled $131,000 and $54,000, respectively (rounded). From 2002 through 2004, similar transactions totaled nearly $250,000. Checks issued to her boyfriend, Edwards, and presented for cash totaled $81,000 (rounded) from 2002 to 2006. In her interview with the police, defendant said Willis had given her a raise in ...