17 Cal.App.5th 370
Cal. Ct. App.2017Background
- In 2002 Kaufman sold a promissory note (held by Reinicke) to Emmet for $45,000 and promised personal guarantee/recourse; Emmet recorded the assignment.
- In 2010 Reinicke paid Kaufman $36,732 as an early-payoff under a renegotiation; Kaufman reconveyed title to Reinicke and did not notify Emmet.
- Emmet continued to believe he owned the note, later demanded payment when payments lagged, and ultimately learned Reinicke had paid Kaufman in 2010.
- Kaufman made sporadic payments to Emmet thereafter, promised to pay the balance by July 31, 2013, but failed; settlement checks bounced.
- Prosecutor charged Kaufman with grand theft as to Emmet (larceny theory); jury convicted; court sentenced Kaufman to summary (informal) probation and restitution of $36,732.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for grand theft by larceny as to Emmet | Evidence shows Kaufman intercepted $36,732 destined for Emmet and kept it — supports larceny conviction | Kaufman says no trespassory taking because Emmet had not yet possessed the funds and had allegedly exercised recourse; at most false pretenses as to Reinicke or embezzlement | Court: Substantial evidence supports larceny as to Emmet — Kaufman wrongfully intercepted payment, asportation and intent proven; claim-of-right rejected by jury |
| Failure to instruct on theft by false pretenses (as to Reinicke) | (People) Prosecutor chose theory and tried larceny as to Emmet; instruction on false pretenses not required sua sponte | Kaufman: evidence supported false-pretenses theft as to Reinicke; court should have instructed on that theory | Court: No sua sponte duty to instruct on an uncharged theory involving a different victim; larceny instruction was supported by substantial evidence |
| Claim-of-right / recourse defense | N/A | Kaufman: reasonably believed he had right to funds (recourse/guarantee), negating felonious intent | Court: Jury rejected claim-of-right; concealment and other evidence negate good-faith belief; claim-of-right instruction was given and properly resolved |
| Extortion by victim as a defense / admissibility of related evidence | N/A | Kaufman: Emmet threatened criminal prosecution to extract payment; extortion should be a defense and emails admitting threat were admissible | Court: Victim’s alleged threats do not negate elements of larceny and are not a defense; evidentiary exclusion harmless because same emails were later admitted; no instruction required |
| Sentencing—summary probation for a felony-wobbler | People: summary probation unauthorized for felony; remand for resentencing as felony | Kaufman: summary probation was ordered and thus converted the offense to a misdemeanor by operation of law | Court: By ordering summary (informal) probation and showing no intent to preserve felony jurisdiction, the court effectively classified the offense as a misdemeanor; judgment affirmed |
Key Cases Cited
- People v. Gonzales, 2 Cal.5th 858 (Cal. 2017) (consolidation of larceny, false pretenses, embezzlement under "theft"; underlying theory must be proved)
- People v. Vidana, 1 Cal.5th 632 (Cal. 2016) (background on historical consolidation of theft offenses)
- People v. Williams, 57 Cal.4th 776 (Cal. 2013) (elements of larceny and theft-by-false-pretenses explained)
- People v. Davis, 19 Cal.4th 301 (Cal. 1998) (trespassory taking and asportation elements of larceny)
- People v. Beaver, 186 Cal.App.4th 107 (Cal. Ct. App. 2010) (reversal where evidence supported false pretenses but jury instructed only on larceny as to same victim)
- Hall v. State, 257 S.W. 61 (Ark. 1923) (interception of payment intended for another can be larceny)
- England v. United States, 174 F.2d 466 (5th Cir. 1949) (cashing/intercepting check payable to another supports larceny)
- Pearlstein v. State, 547 A.2d 645 (Md. Ct. Spec. App. 1988) (diversion of funds intended for a payee supports larceny)