Superior Court of California, Appellate Division, Ventura
Filed Date 2/11/14
Pub. Order 1/27/14 (unmodified version)
APPEAL from a judgment from the trial court in the Superior Court of Ventura County, Hon. Matthew P. Guasco, Hon Kent M. Kellegrew and Hon. Nancy L. Ayers, Judges, Kevin G. DeNoce Trial Judge
Gregory D. Totten, District Attorney and W. Taylor Waters, Deputy District Attorney, for Plaintiff/Respondent
David McDuffie for Defendant/Appellant
ORDER MODIFYING OPINION, CERTIFYING OPINION FOR PUBLICATION
It is ordered that the opinion filed herein on January 3, 2014, be modified as follows:
1. On page 5, footnote 2 should be deleted.
2. All subsequent footnotes are to be renumbered.
There is no change in the judgment.
For good cause it now appears that the opinion should be published in the Official Reports and it is so ordered.
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, ...