Opinion
Defendant, Jorge Jose Casas, a salesman at a car dealership, used a trade-in vehicle to follow a customer home to collect the downpayment, a process referred to as “chasing.” However, he did not return to the dealership immediately with the downpayment or the trade-in vehicle, using the vehicle to drive nearly 400 miles in search of drugs to purchase using the cash portion of the downpayment. He was convicted of embezzlement (Pen. Code, 1 §§ 503, 508) following a jury trial and sentenced to state prison.
Defendant initially filed a brief in accordance with the procedures outlined in
People v. Wende
(1979)
BACKGROUND
On January 18, 2008, Clifford B. went to a Ford dealership to purchase a new F-150 truck. Defendant was the salesperson who assisted him in the transaction. Clifford B. was driving a 2004 F-150 truck, which he intended to use as a trade-in. In addition, the purchase agreement called for a downpayment of $1,500. At the time of the purchase, Clifford did not have the
On this occasion, after signing the purchase agreement, Clifford B. drove home in the newly purchased truck, followed by defendant who drove the trade-in vehicle. Normally, salespersons are supposed to drive their own vehicles to “chase” a customer. When they arrived at Clifford’s residence, Clifford gave defendant a check in the amount of $1,000 and $500 in cash. However, defendant did not return immediately with the trade-in truck or the downpayment.
The next day, January 19, 2008, Clifford B. realized he had left something in the old truck that he had traded in, so he called the dealership to arrange to retrieve the item. An assistant sales manager took the call but the trade-in vehicle was missing, along with the keys to the vehicle. Defendant did not show up at the dealership that day, although he was scheduled to work. The sales manager then reported the vehicle as stolen. On January 21, 2008, defendant showed up at the dealership with the trade-in vehicle and the check from Clifford B., but without any cash. When the police arrived, defendant informed the officer he had driven the truck to numerous locations over the two-day period in search of drugs to purchase. The odometer indicated defendant had driven the trade-in vehicle nearly 400 miles. According to defendant’s wife, she drove the only vehicle owned by the couple.
Defendant was arrested and charged with embezzlement (§ 508), as well as driving or taking a vehicle without the owner’s permission. (Veh. Code, § 10851, subd. (a).) It was further alleged that defendant had been previously convicted of a serious or violent felony, within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and one prior conviction for which he had served a prison sentence (prison prior) (§ 667.5, subd. (b)). He was tried by a jury, which convicted him of the embezzlement charge, but deadlocked on the unlawful driving of the vehicle charge. A mistrial was declared as to the vehicle count.
Further proceedings relating to the prior conviction allegations were heard by the jury which found both the strike allegation and the prison prior allegation true. At sentencing, the court dismissed count 2, and sentenced defendant to the midterm of four years (two years, doubled due to the strike) for the embezzlement count, plus one year for the prison prior, for a total
DISCUSSION
In conducting our independent review of the record pursuant to the holding of
People v. Wende, supra,
However, there are decisions that have affirmed convictions for embezzlement after noting that an intent to temporarily deprive the owner of the property is sufficient. (See
In re Basinger
(1988)
Recently, the First District Court of Appeals held that evidence of a defendant’s intent to restore embezzled property was irrelevant because of fraudulent intent, that is, the intent to use the property for a purpose other than that for which the dealership intended.
(People v. Sisuphan
(2010)
The reviewing court noted that the offense of embezzlement contemplates a principal’s entrustment of property to an agent for certain purposes and the agent’s breach of that trust by acting outside his authority in his use of the property.
(People v. Sisuphan, supra,
181 Cal.App.4th at pp. 813-814, citing
People
v.
Talbot
(1934)
It is difficult to reconcile the two lines of cases dealing with contradictory mental states. However, to the extent that the cases are consistent in holding that the gist of the offense of embezzlement is the appropriation to one’s own use of property delivered to him for devotion to a specified purpose other than his own enjoyment of it (see
People v. Hodges, supra,
Here, the owner’s use and enjoyment of the trade-in vehicle and monetary deposit for the truck purchase was interfered with significantly by defendant’s use of the vehicle to travel approximately 400 miles, over the course of two days, in search of drugs, which were purchased with the cash portion of the downpayment. Even if defendant had intended to eventually return both the trade-in vehicle and the money, his appropriation of both, for his own personal use, was significant in duration and incompatible with the owner’s enjoyment or use of the property. 2
Using the definition we have adopted, the proffered evidence was irrelevant, so the exclusion of same by the trial court was not an abuse of discretion. Further, the court’s modification of CALCRIM No. 1806, instructing the jury that an intent to temporarily deprive was sufficient to prove the mens rea of the crime of embezzlement was not error.
The judgment is affirmed.
McKinster, J., and Miller, J., concurred.
Appellant’s petition for review by the Supreme Court was denied September 15, 2010, SI84293. Corrigan, J., was of the opinion that the petition should be granted.