IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
August 31, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
COLLEEN AGNES BENTON, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF104588A)
The opinion of the court was delivered by: Butz , J.
P. v. Benton
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 salary to $5,000 a month in 2005 or 2006 as compensation for both her secretarial and supportive services for him.*fn2
I. September 2006 Videotaped Interview of the Victim
Considering proof of the mental state of the victim to be "the crux of this case," the prosecutor made a pretrial motion to admit the videotape of the September 2006 interview of Willis. The motion asserted it did not seek to admit the videotape as proof of the substance of the victim's statements, but as demonstrative evidence of his disoriented mental state at that time, which did not rely on the impressions or credibility of other witnesses. The prosecutor also argued the victim's responses on the tape were admissible as evidence of the mental and physical state of an unavailable witness. In opposition, defendant argued the prosecution did not establish that the victim's condition at the time of the interview was the same as during defendant's commission of the crimes between April 2005 and June 2006, and the images of a confused elderly man would inflame the jury. She also argued the admission of this testimonial evidence would violate her confrontation rights.
At the hearing, the court indicated that while the videotape was evidence of the victim's condition, there was no way adequately to address the confrontation problems its testimonial aspects created. The prosecutor suggested she could play only the outset of the videotape, where the victim answered foundational questions unrelated to the circumstances of the offenses. The court agreed, if the prosecutor could establish a foundation that the victim's condition was the same at the time of the offenses. Defense counsel stated that if the prosecution indeed offered the videotape, the defense would seek to have the entire videotape played to give a more complete picture of the victim's mental state (arguing that his later responses were more focused). The trial court indicated that would be defense counsel's choice.
During trial, the parties and the court returned to the issue of the September 2006 videotaped interview to make a final determination. Defense counsel first pointed out that the prosecutor had failed at this point to ask witnesses to compare their observations of the victim during the charged period with his condition as depicted on the videotape. The prosecutor made an offer of proof that the witness presently testifying, the police officer who had interviewed Willis in July 2006, could attest that his condition at that time was the same as on the September 2006 video. Defense counsel stated his opposition to admission of any part of the videotape, but indicated that if the court was inclined to admit it, asked that the full tape be admitted pursuant to Evidence Code section 354. The court then noted that defense counsel's objection "under Crawford" was preserved. (Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177].)
The police officer testified that in the video Willis appeared slightly more tired, but otherwise his condition seemed the same as when the officer had spoken with him in July. Willis's former doctor viewed the video and said Willis appeared significantly worse than when he had last seen Willis, before his admission to a nursing home in August 2006.
Disputing the weight to be given the officer's testimony that Willis's condition in July 2006 was substantially the same as in the videotape, defendant argues there was an absence of evidence to establish the foundational fact that his condition during the charged period was comparable to that depicted on the video. Defendant further contends that whatever minimal value the videotape might have had in establishing the victim's mental state was outweighed by the risk that it would inflame the jury's sympathies for him (citing case law involving victim-impact evidence in the penalty phase of a capital trial (e.g., People v. Prince (2007) 40 Cal.4th 1179, 1289 (Prince)). Finally, defendant makes the cursory assertion that the court's failure to give an instruction sua sponte limiting the jury from relying on the victim's statements in the video violated her right to confrontation.
On the question of foundation, the evidence that the videotape accurately reflected the victim's condition at the time of the offenses was tenuous, but sufficient. The homecare worker, consistent with the police officer's observations in July 2006, had testified that Willis was in an extremely confused mental state throughout 2006. Willis's doctor noted a significant overall decline after February 2005. The trial court thus did not abuse its discretion in finding a sufficient foundation.
As we are not here involved with a videotaped tribute to a murdered victim (see Prince, supra, 40 Cal.4th at p. 1289), we cannot say a videotape showing the victim's condition, in light of the testimony of the other witnesses regarding his confused mental state, presented such a risk of emotional bias against defendant for reasons unrelated to her guilt that we could find an abuse of discretion in the trial court's determination under Evidence Code section 352 that the videotape's probative value outweighed any prejudice from it. (People v. Scheid (1997) 16 Cal.4th 1, 19.)
Finally, we disagree that defendant waived the issue of any violation of her right to confrontation, and assuming the videotape in fact violated her federal confrontation rights, any error in admitting the video is harmless beyond a reasonable doubt. Regardless of the importance that defendant and the prosecutor ascribed to evidence of the victim's mental condition, it was of only tangential relevance to the crime of embezzlement. It may have explained how defendant was able to obtain the victim's signatures more easily, but she still would have been guilty of embezzlement if the victim had been fully cognizant and simply placed full trust in her representations. As for the victim's responses on the video, the evidence we have summarized above renders harmless any possible reliance the jury may have placed on them in the absence of limiting instructions.
II. The Burglary
The trial court instructed the jury it needed to find that defendant entered a building with the intent to commit theft in order to convict her of burglary. The court provided separate instructions on three different types of theft. As embezzlement was the only one supported by substantial evidence, we presume it is the theory on which the jury relied. (People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129.)
Defendant argues that "implicit in section 459 is the requirement that the person enter the building with the intent to commit theft or any felony therein. (People v. Conley (1963) 220 Cal.App.2d 296[, 299].)[*fn3 ] Evidence that a person entered a residence with the intent to commit a felony elsewhere cannot support a burglary." Defendant argues she did not convert the victim's money to her personal use until after she left his residence, when she cashed the checks that she had him sign, and therefore she could not have intended to commit embezzlement when she entered the residence.
Defendant acknowledges a line of authority under which a defendant can commit burglary upon entering a residence with the intent to commit an ongoing criminal transaction that will be completed elsewhere. (People v. Ortega (1992) 11 Cal.App.4th 691, 693, 696 [entry with intent to commit extortion that will be completed elsewhere]; id. at pp. 694-695, citing People v. Nunley (1985) 168 Cal.App.3d 225, 229, 231 [entry of lobby of apartment building with unconsummated intent to enter one of the apartments]; People v. Nance (1972) 25 Cal.App.3d 925, 927, 932 [entry of gas station's office to turn on pump switch to steal gas]; and People v. Wright (1962) 206 Cal.App.2d 184, 191 [entry of one building to gain access through door to attached shed to steal tires]; see People v. Guthrie (1983) 144 Cal.App.3d 832, 845-846 [in rejecting requirement that defendant knows residence is inhabited, notes "California decisions have rejected the invitation to read into the burglary statutes a requirement that a defendant enter premises with the intent to commit a crime 'therein.'"].) We note this line of authority was more recently invoked in People v. Griffin (2001) 90 Cal.App.4th 741, 748-749 (entry with intent to assault in course of search for person) and People v. Kwok (1998) 63 Cal.App.4th 1236, 1240, 1247-1248 (entry with intent to facilitate assault in same home on subsequent occasion). Defendant does not cite any authority that criticizes this proposition. She simply asserts it is contrary to the underlying purposes of the law of burglary stated in People v. Gauze (1975) 15 Cal.3d 709, 715 (protecting occupants of a residence from dangerous situation attendant to intruder's entry, rather than to deter the intended crime) and People v. Montoya (1994) 7 Cal.4th 1027, 1042-1043 (protecting possessory rights from invasion), neither of which her crime implicates.
We decline to depart from this settled line of authority absent contrary controlling authority. Defendant entered the victim's home to obtain his signatures on checks that she later used to convert his property. The evidence is thus sufficient to establish an intended course of conduct at the time of the entry.
III. Burglary as a Violent Felony
Defendant next argues "[t]he application of the occupied residence enhancement to [defendant] [§ 667.5, subd. (c)(21)], while perhaps technically accurate, is a troubling result and not what the voters intended with the passage of Proposition 21." She contends this is an absurd result "even if a facial literal reading of the statute could support it."
Defendant relies on the focus on gang violence and the increase in serious juvenile crimes in the title of the initiative (and in its findings and declarations) that amended the statute defining violent felonies. (Ballot Pamp., Primary Elec. (Mar. 7, 2000), text of Prop. 21, p. 119 (hereafter Mar. 2000 Pamp.).) She also cites the finding--listed after the amendments modifying the existing subdivisions of section 667.5 and adding threats to victims or witnesses (subd. (c)(20)) and use of guns (subd. (c)(22)), along with burglary of an occupied residence (subd. (c)(21))--that "these specified crimes merit special consideration . . . to display society's condemnation for these extraordinary crimes of violence against the person." (Mar. 2000 Pamp., p. 124.)*fn4 She asserts her nonviolent burglary by contrast rests on conduct at the periphery of the underlying crime. She separately argues that the trial court did not recognize its discretion to find that the statute does not apply (apparently sua sponte).
A. Assertion of a Nonviolent Burglary
Ordinarily, if statutory language is clear and unambiguous, we do not have anything to construe and therefore do not consult extrinsic indicia of intent. (Rehman v. Department of Motor Vehicles (2009) 178 Cal.App.4th 581, 586 (Rehman).) However, if the literal meaning of a statute would be at odds with its purpose, we may construe it to avoid this result. (Id. at p. 587.)
Defendant does not explain how we are to "construe" the statute to avoid its application to her. As noted in the previous section, it is the potential for violence with which burglary is concerned, particularly when an occupant is in the residence, not whether there was or was not in fact a violent intrusion. This is in keeping with the general concern in the initiative with violent crimes. We would need therefore to find some subtle basis for distinguishing defendant's crime categorically from any other nonviolent burglary, before then declaring this hypothetical category outside the purpose of the statute. A plausible manner of "interpreting" the statute in this manner eludes us.
Though defendant's crime may not be one of the most common types of residential burglary included within the net the electorate cast in 2000, this does not create a result so incongruous that we may engage in the exceptional course of departing from the plain meaning of a statute. (People v. Baldwin (2010) 189 Cal.App.4th 991, 1004; cf. Rehman, supra, 178 Cal.App.4th at p. 588 [application of statute literally results in applying conflicting standards in same administrative proceeding].) Defendant committed a burglary while the victim was present in his home. This satisfied the statute. We reject her primary claim to the contrary.
B. Trial Court's Discretion
In support of her alternative claim that the trial court was unaware of its discretion to disregard the jury finding of an occupied residence, she cites People v. Garcia (2004) 121 Cal.App.4th 271, which held only that where a trial court neglected to submit an occupied-residence allegation to the jury, it could make the finding on its own as part of sentencing because the defendant was not entitled to a jury determination. (Id. at pp. 276, fn. 4, 277-280.) Defendant does not provide any authority for the trial court to ignore a jury finding that the burglary was of an occupied residence. We therefore reject her argument.
IV. Section 654
In sentencing defendant on her conviction for theft from an elder, the trial court stated, "on that one, the Court is also going to choose the midterm of three years. However, because of the Penal Code Section 654, the Court will run those sentences concurrently." Defendant maintains, and the People concede, that the sentence on the elder theft conviction must be stayed if section 654 precludes multiple punishment as a single course of conduct. (People v. Flowers (1982) 132 Cal.App.3d 584, 588-589.) We agree and will modify the judgment accordingly.
V. Custody Credit
We note a computational error that the parties have overlooked. Defendant had nine days of actual custody, for which the trial court initially awarded four days of conduct credit. Reminded that the burglary was a violent felony, the court stated, "The credit, instead of being four days, will be one day," but then added inexplicably, "We'll give her credit for two days rather than four." The abstract of judgment awards two days of conduct credit. We shall direct the trial court to correct this error as well, as 15 percent of nine days is one day (ignoring the fraction), not two days. (§ 2933.1.)
The sentence on the conviction for theft from an elder (count one) is stayed. As thus modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment, reflecting this modification and reducing the conduct credit to one day (§ 2933.1), and forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: ROBIE , Acting P. J. DUARTE , J.