Superior Court of California, Appellate Division, Ventura
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent,
BRIAN WETHERELL, Defendant and Appellant.
Pub. order 1/27/14
APPEAL from a judgment from the trial court in the Superior Court of Ventura County Number 2010038277, Hon. Matthew P. Guasco, Hon Kent M. Kellegrew and Hon. Nancy L. Ayers, Kevin G. DeNoce Judges.
Gregory D. Totten, District Attorney and W. Taylor Waters, Deputy District Attorney, for Plaintiff/Respondent.
David McDuffie for Defendant/Appellant.
OPINION AND JUDGMENT
Defendant and appellant, Brian Wetherell (“appellant”), appeals his conviction following his plea of no contest to a misdemeanor count of diverting construction funds in violation of Penal Code, Section 484b. Appellant argues that the judgment of conviction and sentence should be reversed because his prosecution for the charged offense is time-barred. Specifically, appellant argues that the charged offense is governed by the three-year limitations period provided by Penal Code, Section 801. Plaintiff and respondent, the People (“respondent”), argues that violation of Penal Code, Section 484b is a crime, “a material element of which is fraud, ” within the meaning of Penal Code, Section 803, subdivision (c), thus bringing prosecution of the charged offense within the four-year limitations period of Penal Code, Section 801.5. It is undisputed that the prosecution commenced later than three years but within four years after the acts which serve as the basis of the charged offense.
We hold that the offense of diverting construction funds in violation of Penal Code, Section 484b, although not one in which the specific intent to defraud is an essential element for conviction, is nonetheless a crime in which fraud is a “material element” for purposes of applying the four-year statute of limitations pursuant to Penal Code, Sections 801.5 and 803, subdivision (c). Accordingly, prosecution of the charged offense is not time-barred, and we affirm the judgment of conviction and sentence.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution of this case began with the filing of a complaint on October 16, 2009, alleging that appellant violated Penal Code, Section 484b, diverting construction funds, a felony, as well as Business & Professions Code, Section 7159, subdivision (d), excessive demand for down payment, a misdemeanor. Both charged offenses were alleged to have been committed by appellant on or about April 5, 2006. Through a series of procedural events which are not summarized here, including amending, dismissing, and re-filing of charges, the current incarnation of the charges are as misdemeanors. Appellant was arraigned on and entered pleas of not guilty to the misdemeanor charges alleged.
On September 12, 2011, the case was assigned to a trial department for hearing on appellant’s motion to dismiss for lack of jurisdiction based upon the bar of the statute of limitations and for a jury trial. The parties briefed the statute of limitations issues before the trial court. Appellant argued that the charged offenses are subject to the three-year limitations period of Section 801. Respondent argued that the prosecution is governed by the four-year limitations period of Section 801.5 and Section 803, subdivision (c) (fraud a “material element” of the offense).
On September 14, 2011, the trial court denied appellant’s motion to dismiss. The trial court concluded that, based upon the authorities presented by the parties and the legislative history and intent of Section 484b and Section 803, subdivision (c), the charged offenses are subject to the four year limitations period of Section 801.5, not the three-year limitations period of Section 801. It is undisputed that prosecution of the charged offenses began more than three years but sooner than four years after the date the crimes were committed.
On May 9, 2012, appellant entered his plea of no contest to Count 1, a misdemeanor violation of Section 484b. Count 2 was dismissed on motion of respondent in light of the plea. A restitution hearing was conducted by the trial court on June 14 and June 23, 2012, during which testimony was taken concerning the monetary loss suffered by the victim, a homeowner who had contracted with appellant concerning a construction project. At the conclusion of the restitution hearing, the trial court suspended the imposition of sentence and placed appellant on unsupervised probation for 36 months. Among the terms and conditions imposed, the trial court ordered that appellant serve 30 days in jail and pay restitution to the victim in the amount of $52, 692, plus interest at the rate of 10% per annum beginning April 5, 2006, until paid in full. The jail sentence was stayed pending payment of restitution in full.
Appellant filed a notice of appeal of the judgment of conviction and ...