California Court of Appeals, Fourth District, Third Division
Appeal from a judgment of the Superior Court of Riverside County No. SWF10001774, Mark Mandio, Judge.
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Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant Robert Conrad Acosta.
Ann Hopkins, under appointment by the Court of Appeal, for Defendant and Appellant Monique Evette Acosta.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Under Penal Code section 502.5, a borrower under a loan secured by real estate may not intentionally harm the lender by removing statutorily specified improvements from the encumbered premises. Section 502.5 was amended to read in its present form some 91 years ago. Despite the age of the statute, we have not found a single appellate opinion, published
or unpublished, in which an appellate court has reviewed a conviction under the statute. It appears we have been tasked with being the first to do so.
A jury convicted defendants Robert Conrad Acosta and Monique Evette Acosta of violating section 502.5 by taking improvements or fixtures from their foreclosed home. The jury found true the allegation that defendants took or damaged property causing a loss of over $65, 000, for purposes of a “great taking” enhancement. (§ 12022.6, subdivision (a)). The court placed them on probation for five years on condition they serve jail time of 270 days.
On appeal defendants argue section 502.5 is unconstitutionally vague and that the court improperly instructed the jury on the definition of the word “fixture.” Monique further contends the court erred by instructing the jury that the great taking enhancement encompasses vicarious liability. Finally, defendants contend that payment of probation supervision costs should not have been made a condition of probation.
We agree the court should have ordered defendants to pay probation costs as a separate order, rather than as a condition of probation. In all other respects, we affirm the judgment.
In May 2007, defendants borrowed about $700, 000 from San Diego Metropolitan Credit Union (the lender) by refinancing the mortgage loan on their home. The lender had the home appraised before approving the loan. The appraiser found the house was “a customized home in a tract area.” It was “exceptional” and had many upgrades. The exterior upgrades included stone work, a wood gate, a courtyard, a patio, a fireplace, a swimming pool with a waterfall and a spa, and an exterior shower. Inside the house, the kitchen cabinets, countertops, backsplash, and appliances were upgraded, as were the staircase banister, the carpet, and a custom wet bar with wine racks. The appraiser factored in the upgrades in estimating that the home’s value was $705, 000.
The lender relied on this appraisal in determining the amount of the loan it made to defendants. The deed of trust listed “fixtures to the home” as part of the security collateral. The deed of trust specified that, “fixtures now or hereafter a part of the property” were part of the secured property. Tina Medrud, who managed foreclosed properties for the lender, explained at trial
that a fixture is anything affixed to the property, whether it is screwed in, bolted in, drilled in, hardwired, stapled or glued to the walls.
Defendants rented the home to Patrick Dunham and his family from December 1, 2008 to January 15, 2010. When the Dunhams moved out, they left the home in “pristine” condition. They moved out because Robert asked them to vacate the house so that Robert could try to refinance the home as owner occupied.
On June 8, 2010,  Medrud told Robert, who was living in the house, that he could stay there until June 30, even though a June 14 foreclosure sale was scheduled for the house. Medrud agreed not to start eviction proceedings, so long as the property was given to her in good condition on July 1.
Monique e-mailed Medrud on June 9. Monique said they would not leave the house in good condition unless the lender gave them $10, 000 in return for the keys. Monique wrote, “$10, 000 plus will maybe get me and my aunt to move out of this home in good condition, ” with multiple exclamation points.
From early June through June 14, when defendants moved out, they seriously damaged the property. Monique cut down a tree in the back yard and pushed it into the swimming pool. Both defendants pulled up plants in the back yard. Inside the house, there was spray paint on the walls. Monique put black dye on the master bathroom grout. In order to bring a heavy bar down from the upstairs game room, Robert and a neighbor used a sledge hammer to pull out wrought iron posts from the staircase. While defendants were at home, someone used the sledge hammer to tear apart or demolish a whirlpool hot tub in the back yard. Stonework between the swimming pool and the whirlpool hot tub was damaged and removed. In the kitchen, the cabinet doors, drawers, countertops, and appliances were removed. Wooden beams attached to the ceiling of the entryway were removed. Half of the rock facing on the house was gone and the rocks were lying on the ground. The garage door and the entry gate were gone. Defendants moved things out of the house into storage pods. A big semi-truck also moved things away from the house.
After 5:00 p.m. on June 14, Monique e-mailed Medrud that defendants had vacated the property. A neighbor checked the door from the garage into the house, the main front door, and two French doors going into the house, and determined that all those doors were locked.
The house did not sell to a third party at the foreclosure sale, and the lender thus acquired the property.
The next day Medrud went to the property and saw “total destruction.” The exterior façade was torn off, with bricks lying on the ground. The gate and light fixtures were missing. Inside, every appliance was removed; every plumbing pipe was broken; every outlet was smashed in. All the countertops were missing. The pool was destroyed; the pool equipment was destroyed; the pool pumps were cut; the air conditioning units were ...