(Super. Ct. No. 72-005202)
The opinion of the court was delivered by: Nicholson , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found defendant Myron Wayne Daniel guilty of fraudulent use of an access card to obtain cash in excess of $400 (Pen. Code, § 484g)*fn1 and grand theft (§ 487, subd. (a)). The trial court also found true allegations that defendant was twice previously convicted of a serious felony pursuant to sections 1170.12, subdivisions (a) through (d), and 667 subdivisions (b) through (i).
Defendant raises numerous issues on appeal. He contends his convictions for grand theft and fraudulent use of an access card violate the prohibition against dual convictions for the same crime. He further contends that his convictions for grand theft and fraudulent use of an access card should be reversed based on insufficient evidence.
Defendant claims the trial court erred in failing to instruct the jury to view his out-of-court statement with caution. And, he claims his out-of-court statement was not an "admission" and thus the trial court erred in instructing the jury that it could convict the defendant based upon that statement and "slight other evidence."
Finally, defendant claims the trial court's order compelling him to reimburse Placer County for attorney fees should be stricken because the court failed to determine whether he had the present ability to pay those fees. For the reasons discussed below, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
In 1972, Helen Elmer (Elmer) purchased a home in Tahoe City, California, along with her daughter, Wendy Parkman (Parkman), and Parkman's siblings. Elmer lived in the home for a period of time, then moved to Florida where she currently resides. Parkman, who lives in San Francisco, then took over maintenance of the home.
In February 2007, the sewer line under the house backed up into the toilet and through the shower drain. "Roto-Rooter" was hired to clear the line; they cleared the line but recommended Parkman replace it. Roto-Rooter estimated it would cost between $8,000 and $10,000 to replace the sewer line.
Parkman sought a second bid for replacing the sewer line. Parkman contacted defendant's company, Mountain Plumbing, whom she had used in the past for smaller plumbing jobs. Parkman went to defendant because she had worked with him in the past, thought defendant "was a nice guy," and she wanted to get an estimate from a small business.
Sometime between February and June 2007, defendant and Parkman met to discuss the job. Defendant told Parkman "he could probably do it for . . . 6 to 8 thousand, but rather than making a commitment to a certain price, because of the unknown issues, [Parkman] agreed that [they] would do it for . . . time and materials." The price did not include the cost of a "street dig." If a street dig were required, that was to be paid according to "time and materials."
Parkman wrote defendant a check for $2,000 to begin the work. They made no arrangements for regular invoicing and no completion date was set. Parkman just assumed it would go forward as a "step-by-step, see what happened, day-by-day kind of process." They agreed defendant would use Elmer's credit card to pay for materials and Parkman would write defendant checks for his time.
In July 2007, defendant called Parkman and "asked permission to withdraw some money from [Elmer's credit card] account" to cover some additional expenses. Parkman agreed he could withdraw $2,000 and gave him Elmer's credit card number over the phone. Parkman assumed she would receive an accounting of the money taken and how it was used, but she did not discuss that with defendant. Defendant contacted Parkman again in August 2007 and asked for permission to withdraw more money from Elmer's credit card account. Parkman thanked defendant and told him to "get what you need," which defendant indicated was $2,500.
During the course of the project, defendant also suggested Parkman have the water shut-off valve replaced. Parkman agreed to the additional work and defendant told her it would cost an additional, $500 to $1,000. Defendant also told Parkman that large boulders were blocking the sewer's path and would need to be removed, and the line would have to veer around trees.
In September 2007, defendant called Parkman and told her the project was essentially done but he needed to withdraw another $2,500 from Elmer's credit card account in order to complete the job. Defendant indicated the only thing left to do was to use gravel or dirt to level out the ditch he dug for the sewer line. Parkman assumed the cost to level the ditch was included in the $2,500 he was asking for, or she would receive an invoice for any additional cost. Because, according to defendant, the project was now over, Parkman asked defendant to send her a final invoice.
Parkman never received a final invoice. She attempted to contact defendant but "didn't get any response." She continued leaving messages for defendant until October, when she "shrugged [her] shoulders and went on with life."
In January 2008, Elmer contacted Parkman and asked if the job was finished. Parkman, who still had not been to the Tahoe City house since defendant told her the job had been completed, told Elmer the job was finished in September 2007. Elmer told Parkman that defendant had taken more money from Elmer's credit card account in November and December 2007. Parkman told Elmer she had not given defendant permission to make those withdrawals. Parkman contacted the Placer County Sheriff's Department.
Meanwhile, Elmer contacted her credit card company and disputed the charges. Elmer's credit card company then requested a "chargeback" from defendant's bank, Wells Fargo. Wells Fargo notified defendant of the impending chargeback and gave him a deadline to challenge the disputed amount. Defendant never responded. And, while defendant's bank statement did not show any chargebacks, attempted chargebacks, or claims of fraud, his account was terminated by Wells Fargo in February 2008 because of an outstanding "collections" balance.
Investigating Elmer's claims, Detective Brian Carmazzi contacted defendant on the telephone and told defendant he was investigating a "fraud case." Detective Carmazzi said he needed documentation from defendant "to support his defense," and indicated he wanted to hear defendant's "side of the story." Defendant said he would gather the documentation and call the detective back. Defendant never called him back. Detective Carmazzi attempted to find defendant at the business address for Mountain Plumbing but it was only a post office box. Detective Carmazzi also tried to find defendant at ...