People v. Kronemyer

Dist., Fourth Div. Feb. D000062. One. 1987.] [No. PEOPLE, Respondent, v.

THE Plaintiff and KRONEMYER, Appellant. ROBERT E. Defendant Counsel Baerwitz,

Ball, Hunt, Hart, Murray and Dimichele Anthony Brown & Donn Appellant. for Defendant and White, Kamp, General, Assistant Attorney

John K. Van de Steve Chief Foster, Millar, General, Attorney Motley, Keith Robert M. Frederick R. I. General, and Jr., Wayne, Deputy Attorneys and for Plaintiff M. Howard Respondent.

Opinion WORK, J. Kjronemyer judgment convicting —Attorney appeals a Robert Code,1 grand (Pen. 118) him of of and eleven counts of perjury four counts § $25,000 (§487, subd.l), findings thefts exceeded theft with true two 12022.6, 12022.6, $100,000 (§ and subd. (§ (a)) subd. others exceeded two he (b). making After full to the of the client from whom restitution estate $936,000, prison was found to have stolen more than he was sentenced to $80,000.2 eight fined years, for attorney

Kronemyer’s convictions from acts committed while the arose he man, charges Baily, Dr. Jr. theft elderly and conservator for an Joshua L. The alleg- municipal bonds, money Kronemyer savings concerned accounts during perjury charges arose from edly Baily from 1977. The embezzled conservatorship Kronemyer which accountings filed in 1977 and 1978 People after argued Baily became senile property. omitted the stolen Kronemyer and conceal enabling an illness in June to steal assets accountings. omitting conservatorship property the theft from the Baily gave property him the for lifetime Kronemyer claims consideration care, perjury have His defense to the condition claims to fulfilled. require interpret accounting charges that he did the estate not complete Baily’s gifts to which were before the conservator- including him ship was established. count, argue exception of that substan-

With the one does not Rather, he support judgment. contends tial evidence does acquittal, support provides of because the record substantial evidence corroborating delaying prosecution Baily precluded until after died coupled trial court procedure, at trial. This with numerous specified. statutory 1All references are the Penal Code unless otherwise had 2Kronemyer to which his victim interest in substantial trust assets also disclaimed all residuary Baily’s designated beneficiary estate. him and in the errors, fair a multitude allegedly deprived him of a trial. He further claims injury pretrial rulings, evidentiary rulings, instruc- and voir dire of errors compel tions, sentencing reversal. errors follow, we conclude there no statute limitations

For the reasons prosecuting any charged. We affirm the four convictions the crimes bar larceny theft of funds from perjury grand count based on for and one eight We convictions theft Dr. four bank accounts. reverse Kronemyer, in the instruc- property entrusted to because of material defect defining find error. tion embezzlement. We no other reversible Background Factual posture appeal requires of this we and detail extensive convoluted

history Baily-Kxonemyer relationship. of the affluent, becoming Kronemyer, Baily Dr. was an

Before client of Joshua reticent, man, Gibbs, attorney, pay his elderly who insisted his Kerber but personal and his bills. and his wife were social taxes most of Gibbs also Baily Bailys Kelly his In Lishie as friends and wife. hired later, housekeeper. normally Baily years When Mrs. died reserved two Baily society. Kelly’s driving him withdrew further from duties included routinely him Diego. During Kelly San drove to various around 1970’s accounts, well as to financial institutions where he maintained his stock attorney. and broker arranged represent Baily

In Kronemyer Gibbs for to and assume keeping attorney-role performed. Baily began the same Gibbs had basic municipal Kronemyer’s keeping. certain bonds in office for safe In 1972 Baily trip state, attorney Kronemyer power when he gave took out of savings pay one account his June tax. over income Baily holographic will and retaining Kronemyer, Before had written a publication proposed his trea- generally designed fund scientific codicils naming all and proper and classification of mollusks tise dedicated to 3,000 brachiopods provided printing coast. will on America’s west This museums, work, free to universities hard-bound sets of his to be distributed $800,000 and a of between and similar institutions at an estimated cost point, Baily dollars, Baily’s estate. At some substantially the bulk of million tech- Kronemyer becoming work was because of modem obsolete told personal bequests increasing to his He nology. then executed further codicils San niece-in-law, her who had moved Baily, Kamilla children niece, died, Ellen and her children area wife and his Brown Diego after his he executed a fourth codicil Pennsylvania. Later who lived in A naming executor. fifth for his brother dealing with a trust $5,000 $10,000 bequest and her childrens’ Kamilla’s codicil raised equalize bequests codicil to Daily In executed a seventh each. late respective families. to Ellen’s and Kamilla’s Corwin, and became his from Dr. Edwin

Daily lived across the street 4, 1977, Daily lethargic Corwin found patient On June in November 1976. hospital. Daily noncommunicative, him to a While and admitted pass- possession Daily’ssavings account of all hospitalized, took documents, telling Kelly wanted to hold them and other financial books place. in a safe mid-June, Daily’s condi- Corwin found mental Daily

After was released confused, lethargic, reluctant to markedly; he was tion had deteriorated previ- dementia. The forgetful. diagnosed Corwin senile communicate and usually unaware name and ously Daily alert did not know the President’s regained his normal Daily never day the week. Corwin believed complicated comprehend state; capacity to or evaluate mental had lost the owned; longer no understand recall what he could legal documents or will, gift Although or tax a deed of a return. meaning of a codicil to a August perma- improved by he soon memory for recent events Daily’s physicians, three defense-called regressed. jury also heard nently admitting attending physician Vega (the and including Dr. Frederick De La opthamologist), and Dr. John Robuck Scripps), Wayne (an Monsees Dr. nothing question Daily’s mental Vega to (a psychiatrist). De La observed hospital in Monsees testified that in 1977. functioning while he was impaired no mental he observed during January eye a examination diagnosis. He concluded challenged Corwin’s Finally, Dr. Robuck function. pseudodementia, caused a disorder known as Daily suffered from mood produce impaired memory and diffi- depressive episode major which can a thinking. in culty private hospital, Daily was attended returning home from the

After disoriented; would and generally confused testified he was nurses. Several showered; forget why he summoned just would forget he had eaten or day, month memory; not know the nurse; hallucinate; faulty did would had Kronemyer for signed had documents told one of them he year; or and they were. knowing what without illness, his who saw him after Daily’s friends and relatives

Several physical faculties. in his mental and significant deterioration noticed a clinging and being frightened, him as Cumulatively, they characterized affectionate; write; concentrate, very child-like; to read forgetful; unable Daily in had a close rela- Kamilla, first met senile; who and confused. illness, found him brilliant his she tionship him his wife. Defore and people. displays After his release with few of affection to very formal function, being in unable hospital, significantly he declined mental from the him; becoming people demonstrative who had visited to remember people; inca- related conduct; appearing way child-like in the he pable understanding legal document. illness, Baily’s Baily’s Kronemyer increasingly involved with

After became family placed photograph of his regularly He visited him existence. put photograph of himself and his Baily’s residence and later a framed affairs, decisionmaking Baily’s for family Baily’s bedroom. He assumed all spent writing determining food and nurses and how much would be Kronemyer angry Kelly when Baily’s pay account to the bills. checks deposit given Baily’s key Baily. to Kamilla told him she had safe box bequest hospitalization, Baily Kelly increase his After his told he would prepare When her to call the documents. to her and directed complied come, Baily again. call him When she he failed to ordered her to by Kronemyer money. Krone- Baily she was admonished not to talk to about 5, 1977, myer July Baily Baily came to the residence on and had execute July 25, Kronemyer Baily eighth again an codicil. On went to the residence prepared Kelly where he he had summoned into bedroom and told her Baily’s Baily signed a codicil to will. covered codicil document, paper signature showing. with a This sheet of so line was codicil, bequest History Diego the ninth limited the Natural to the San publishing Baily’s manuscript $50,000 Museum for and divided his parts, part go Kronemyer, residual estate into six one identified years regarded codicil as close friend for 25 as a son. whom The Offenses 8) Munic- Baily’s Savings (Counts Through 5 and Grand Accounts Theft of

ipal (Counts Through 13) Bonds 11 through Krone- through eight Counts five and eleven thirteen are based on myer’s municipal Baily’s Baily’s sale of certain of bonds and closure of six of purported gift by savings Kronemyer accounts. obtained deeds of executed bonds, savings municipal dated Baily covering the cited accounts and one 4, 1977, 1, accompanied April July document was and the other 1977. Each letter, Kronemyer by designation setting forth additional assets from which pay gift tax on the to which it related.3 was authorized to the 1977, prosecution argued April gift actually July 4 in after 3The documents were drafted closed, August Similarly, prosecution argued savings in accounts were 1977. 15, gift July gift return were time after November 1977. The tax documents drafted some 19,1977. documents, July 5, 1977, relating though The dated was filed on December to these 15, Kronemyer penalty filing payment closed a late for after November 1977. return included 15, deposit prosecution argued Baily’s the bonds listed in safe box in November 1977. The 1, 1977, gift deposit Kronemyer July were stored in the safe box and that stole documents then drafted back-dated documents. them on November and 12, 1977, July Kronemyer Baily two particularly, on closed accounts More Jolla, $30,682.27 containing at Federal in La one and the other Central deposited proceeds own at San $10,631.06. (Count 5.) He in his account 9, August 1977, account and transferred Diego Federal. On he closed that 14,1977, July at America. he closed to his trust account Bank of On funds $8,287.26 Bank, $15,613.05 First at Baily’s at California three of accounts: Imperial 6), $22,707.64 Baily’s Savings (count from account at that bank and 90-day 7). deposited proceeds savings certif- (count and He these into Loan 9, August he closed that account name Central Federal. On icate his Kronemyer proceeds, Kronemyer and Trust deposited and into the 15, And, July 1977, Kronemyer withdrew at Bank of America. on Account Diego and $14,257.65 Baily from account maintained at San Trust an deposited (Count those into an account in his Savings 8.) Bank. He funds August 9, 1977, Savings, he later First Federal which closed own name at his deposited proceeds into accounts. another Baily’s municipal proceeds Kronemyer also bonds and received the sold $148,018.88 (count 11) Kronemyer check to him. payable of a the form deposited this check his law client trust account.4 On December into firm’s 13, 1977, municipal he had from hé sold additional bonds which obtained November, receiving deposit payable a check made Baily’s safe box $52,197.91. 12.) wife In (Count March him and for municipal payable Baily’s remaining and received a check made sold bonds $615,000. (Count gener- All approximately 13.) wife to him and his for funds up Kronemyer’s above or later ated transactions sooner wound personal accounts. Charges Through 4)

Perjury (Counts conservatorship. September perjury out On charges arose Davis, conservatorship at the 1977, petition was filed Olivia opposed Kamilla filed a request Baily and the Browns. petition seeking to be named conservator. On October counter accounting of all condition file an Kronemyer was named conservator on processed in the properties he had Baily’s financial transactions petition. signed an filing On October he 12 before months all of perjury, representing he had handled accounting penalty under of checking Diego at San Trust through financial account Baily’s transactions inventory savings list accounts Savings and Bank. The did not closed, personally had their Kronemyer had nor even hint he obtained requires sepa attorneys 8-101(A) to maintain of the Rules of Professional Conduct 4Rule deposited. which all funds are to for of clients into client be rate trust account the benefit prohibited commingling any present here, attorneys are Except from circumstances not for clients. with those of their of their funds

329 and their municipal bonds Baily’s Further, reference to it omitted proceeds. (Count 1.) proceeds. appraisement inventory signed a final 5,1978, Kronemyer January

On within Baily’s assets all of perjury declaring it identified penalty of under sale of report the November 1977 possession. He did not knowledge 2.) proceeds. (Count Baily’s or their bonds accounting and 13, 1978, Kronemyer filed a first current December

On all penalty perjury he had set forth asserting report under of conservator 4, 1977, to Baily November from expenditures he had made on behalf appropriated from property he Kronemyer omitted the November 1978. proceeds) and he had sold and their including municipal (which bonds Baily, (Count 3.) tax refund. perjury an penalty of 1, 1978, Kronemyer signed under February On all declaring a true statement of appraisement, it contained inventory and possession. Again, it failed to knowledge and Baily’s assets within his (Count 4.) Kronemyer had received. Baily’s property which mention Through 18) Attorney (Counts Checks Via Fee Grand Theft Kronemyer withdrew remaining Baily were on monies These counts based Specifically, attorney guise of fees. his client trust account in the from payable to 18, 1977, deposited certain checks July into his trust account Electric; Bank; $375 Gas and from Pacific Baily ($8,090.93 from the Girard $6,000 the trust account $121.60 check on Medi-Care), from and wrote a “Transfer bearing the notation payable Kronemyer Kronemyer, made depositing August (Count 14.) On after Baily fees from Dr. Account.” account, Kronemyer wrote a Baily trust payable checks into his several $1,000, “Transfer bearing the notation firm account for check to his on that 2, 1977, 15.) September Krone- (Count On Baily to fees from Dr. Account.” a check on deposited payable Baily and then wrote myer several checks with the same notation. 1,000 payable $ to his firm account for made trust trust 13, 1977, Kronemyer deposited into his September (Count 16.) On $10,000 check on payable Baily and wrote two made account checks 17.) Finally, on (Count to his firm with the same notation. the trust account $1,000 for the trust account 3, 1977, Kronemyer wrote a check on October Baily Dr. to fees from firm, “Transfer bearing the notation payable to his September 1977.” monthly retainer account for Background Procedural grand theft and counts charged counts

Kronemyer was 1982, 24, allegingthe offenses was filed June original indictment perjury. The trial, Kronemyer unsuccessfully moved in 1977 and 1978. Before occurred (former ground three-year statute of limitations for dismissal on the the deliberation, three-day a elapsed. Following jury 800) had a trial § perjuries grand The and twelve thefts. Kronemyer convicted of four probation upper years the term of and was sentenced to three court denied he 12022.6, 13, years pursuant the section on with an additional two count for (b), middle term’s terms subdivision and to three consecutive one-third remaining imposed concurrently, eight a were years. total of terms pursuant except stayed 654. two-year the term for count was section imposed $80,000 in The court also fines. Kronemyer’s Bar

The Statute Does Not Prosecution of Limitations challenges dismiss informa Kronemyer the trial court’s refusal to by three-year tion of limitations stated and indictment as barred statute prosecution (c),5requiring grand theft former section subdivision discovery. perjury years or after their within three Miller, neighbor, friend and contends David these no than “discovered” facts sufficient to alert him to crimes later September 1978, years than the indictment. He asserts more three before victim, a eligible Miller was an discoverer under section 800 because was a of the Natural aggrieved party, or at least an because of his role as director Further, History beneficiary Baily’s Museum which was residual estate. knowledge impel investigate man to was sufficient to reasonable Kamilla, beneficiary, a will matter. also contends “discovered” years indictment was filed.6 alleged more three before the offenses than prosecution this explain, As does not bar we shall the statute of limitations were Kronemyer’s crimes or because neither Miller nor Kamilla discovered activity, suspicious of his criminal aware of facts to make them sufficient purpose triggering they qualify for the former nor did as discoverers (c). section subdivision period of

Although subject, on the limitations the statute silent People Cal.App.3d Swinney (1975) section 800 has construed been repealed 1984, chapter 1270, subdi section 1. Former 5Former section 800 was Statutes pertinent part: grand [perjury] (c) repeal provided in “An indictment for theft... vision before municipal or, appropriate, found, where ... shall be an arrest warrant issued justice years discovery.” its court within three after alleges 6Basically, the crimes were not occurred in 1977 and the information crimes attorney from a April information until when an assistant district received discovered death, private following Baily’s precisely, April day Assistant citizen. More Attorney approached by regarding Kennedy matter. David Miller District William investiga later, Approximately Kennedy from Ellen Brown month received a letter tion followed. Cal.Rptr. People (disapproved grounds on other v. [120 148] 538, 564-565, Cal.Rptr. 784, (1976) fn. 26 557 P.2d Zamora 18 Cal.3d [134 75]), commencing either the or law from the date victim enforcement personnel which, investigated diligence, learn of facts when with reasonable People person (Accord would make v. that aware a crime had occurred. Zamora, supra, pp. Here, victim, Baily, 562,571-572.) at the direct Dr. never any Kronemyer any knew of perjury. theft or does not contend law enforce- put person ment official knew facts which would have that on notice before 1981. Kamilla,

Kronemyer although claims Miller and neither direct victims nor officers, reported law qualify enforcement as discoverers. No California deci- operation specifically discovery triggers sions have addressed whose scope the statute or the of the term “victim.”7 major policy protect

A underlying former section 800 is to individuals having against charges from to defend after material facts have themselves passage become obscured (Toussie of time. v. United States People 858]; 397 U.S. 114-115 L.Ed.2d 90 S.Ct. accord Zamora, supra, 538, 546.) 18 Cal.3d

However, when delay legal is created the fraudulent machinations process appointed of one who uses the court’s to have himself conservator estate, Here, of his victim’s sympathize. it is difficult to made every prevent discovery any obviously effort to activity. criminal While he prevent detected, being certainly intended to his ‍​​​​​​​​​‌​​​‌​‌​​‌‌‌‌‌‌​​​‌​‌​​​‌​‌​​​‌​‌‌‌‌​​‌‍crimes from ever consciously delay discovery. Having acted to create the maximum thus acted, he complain should not now heard be he would have desired to have been tried sooner. tolling upon relies on other states’ statutes based concealment specifically designate persons persons other than law enforcement Stat., particular, (Alaska

direct victims as “discoverers.” In Alaska 12.10.020), Stat., (111. 3-6) (Mont. Illinois Ann. ch. and Montana Code § § Ann., persons capacity represent §45-1-205) legal refer to with a However, represent person legal capacity victim. one does not have a appointment authority. Kronemyer’s statutory absent court contention they residuary were Miller and Kamilla had the because beneficiaries represent legal capacity Probate Code section 2616 interest under interpretation phrase. merely strains the Probate Code section 2616 persons petition probate designates standing in a action so the court appears twenty-one tolling only five of least states with a statute 7California to be one of specific persons qualify discovery designate who as “discoverers.” related to which fails to disposed a alleged wrongfully to have concealed or of may examine others property. petitioner may any be The a creditor or ward’s or conservatee’s However, prospective expectancy in the estate. person having an or interest herself, legal petitioner really representing only him or and the is that petitioner. standing in the capacity flowing from this section is to create a Illinois, “legal represent capacity and Alaska statutes refer to to Montana persons with to aggrieved person,” while other states similar statutes refer an Or, Ohio, as “legal duty represent aggrieved party.” the to in the case of with Ann., person.” “legal representative aggrieved (See of Ohio Rev. Code the Illinois, legal capacity in the We believe term used §2901.13.) persons “having legal is with synonymous and Alaska statutes a Montana party. interpretation This with duty” represent aggrieved to is consistent every designating may a state who be discoverer for the the statutes of triggering by limiting the class those purpose of the statute limitations to crime, person legal a persons are either the direct victim of the a who offense, person relationship a duty report standing legal to or within a duty rise act in victim’s gives direct victim which to a law to to the behalf. Miller, contends, event, museum, as a Kronemyer director of offenses; and, aggrieved party alleged even victim or of the under is a Zamora, discovery triggered of the above facts the statute Swinney and However, while was a of the museum which limitations. Miller director will, residuary beneficiary personally itself a under is powers represent had the museum’s aggrieved. As a director he certain to Kronemyer “victim” suggests since an institutional could interest and that crime, representatives a its must deemed to be discover be never injure financially. it From this of offenses which “discoverers” However, report motive the crime. statute argues that Miller had a pеrsons motivated to designed to influence who are not otherwise is not prevent persons directly suspicious do affected report conduct to so. It is persons legal investigate timely duty those who have a by the crime or denying suspected speedy prosecute activities from criminal criminal trial. by anyone argues begin discovery run on the statute should matter, subject

who, special in the victim or of some interest because He likely report the offense. contends reasonably discover and is person be deferred discovers the crime should statute when no such other the matter by law which do consider discovery enforcement. states until denoting persons problem by victim address this competency of direct Here, that having capacity to act for the victim as discoverers. legal person legal No other had the person Kronemyer himself as conservator. person having law to act for Baily. A status as matter of to act for status quasi-identity so that incompetent’s with the incompetent is invested an incompetent legal notice to the person is treated as notice to that neighbors, friends or bringing No such status is vested purpose of suit. incompe- degree concern for the interest regardless of their relatives require a class sense fairness and common victim. We do not believe tent public, neighbors, general all members of the to include of “discoverers” investigate or who fail to nieces-in-law of victims residuary beneficiaries suspicions wrongdoing. mere officials of advise law enforcement Baily’s especially interested in affairs Kronemyer argues Miller was he not define the a discoverer. While does be considered therefore should phrase “persons interested in the class, notes the such a he limits of Georgia.8 trigger a of limitations prosecution” has been used to statute (State However, applied the cases referred to phrase as to the facts of App. 888], Taylor v. State (1980) 154 Ga. S.E.2d v. Brannon persons were either App. 667]) S.E. each involved who (1931) 44 Ga. 64 [160 agency. victims or members of a law enforcement direct event, had information any In Miller has not been shown to have sufficient occurred, any special legal put had nor did he have him on notice a crime to him relationship obligating the victim to act on the latter’s behalf or agencies. Factually, Miller and the report the matter to law enforcement History longtime involvement with the Natural had a mutual victim 1975, Baily had as director. In told Miller he where Miller served Museum gotten receipt. At Kronemyer for which he had "not given certain bonds to Baily Miller also was suggestion, stated he would obtain one. Miller’s Kronemyer serving Baily’s accoun- early as 1975 about both as concerned lawyer. tant and except spoke Miller to tell Baily became ill he never of his estate to

After “well day History would be remembered” him the Natural Museum some copy final received a January February In or Miller by him. with the appointing as conservator inventory and the order September 13, through October 1977. accounting period for the Baily receipt which had discussed for bonds Later Miller was shown receipt which were referred to bonds He noticed the with Miller 1975. supporting his that discov 8Kronemyer’s Model Penal Code as contention reference to the disingenuous. “any person That reference is interested” in the victim is include erers should relating the victim is a minor to sexual crimes where of information limited to discoverers tolling statute, general incompetent. section contains a The Model Penal Code or otherwise “a material element 1.06, offense which limits the discoverers in subdivision which discovery fidiciary obligation year after within one a breach of which is either fraud or represent person legal duty aggrieved party an aggrieved who has a an offense offense____” Thus, applying party the Model Penal Code party not a to the who is himself contrary here. Kronemyer’s his contentions be case would conservatorship accounting. suspect wrong- did not in the Miller not listed speculating may have handled in a manner doing, merely the bonds been require inventory. be on the not them to listed did must have discovered the no Kronemyer contends that Miller offenses September 22, when, knowing Kronemyer had time later at one than inventory, in the held which had not been listed sworn some of bonds concluding stating facts and must be he memorandum these “this wrote a However, Miller anything knew other investigated.” there no evidence Baily previously had received from than certain bonds which reported inventory. had on one Miller’s earlier information not been inventory had no to believe that later obtained in 1975 and he reason however, did, listed Miller notice omission and should have them. investigated. His concerns were because believed it should be suspected merely then wrongdoing, because believed the criminal but possessions. Baily forgotten some of his It is not incompetent may have suspected Kronemyer currently held unlisted Miller even these established inventory. Further, in the it not deliberately not listed them bonds or had depletion any his estate Miller knew of will or that of shown the terms missing bonds affect museum. virtue of would putting facts her notice of less so Kamilla aware of Even beneficiary was a possible wrongdoing. Although she knew she criminal will, legal capacity Baily. she to act under the had no purposes triggering of limitations under a similar For the of the statute though offi statute, discovery have even tolling a was held not to occurred suspicion have created a cials facts which would learned substantial Super A.2d (Com. 748].) Pa. Simi wrongdoing. v. Hawkins supra, People Swinney, Cal.App.3d the court larly, in period on concealed thefts triggering of a of limitations concluded loss; requires an requires discovery a it awareness more than mere Thus, “discovery” calls for agency. a loss occurred virtue criminal Here, crime, merely Miller Kamilla loss. neither nor awareness of the diligence missing. duty to exercise reasonable knew were While a the bonds do may policy affairs that direct victims looking justify after one’s own wrongdoing, policy is no reason so to evidence of criminal there uncover persons who are impose duty in order benefit criminals such a on third concealing of their crimes. actively engaged evidence statute, discovery of a we believe as a thief to the benefits Insofar is entitled victims, persons are than those who direct it extend no further should crime, persons report investigate and those persons having legal duty and imposed by guardian, law or who are clothed with status conservator equivalent, express statutory in the absence of direction. Unduly Trial Did Commit Reversible Error Court Not

Restricting Voir Dire argues the court committed reversible error in not next letting potential jurors experiences elderly people. him ask about their with prospective jurors states he desired to voir dire to determine personal experiences observing their interacting whether life elderly persons objectively weigh would make them unable to his defense elderly Baily gave that the knowingly him almost a million dollars in bonds cash, beneficiary residuary and made him a and in a trust of his estate. particular, Kronemyer

In panelist elicited from the first that her senile, 72-year-old grandfather memory early suffered from loss of in the stages senility, objective signs forgetfulness of his described the of his very fluctuated between a confused in which state and one he seemed very precluded clear. He asking imagine was then from whether she could elderly persons being they try so afraid of loneliness that would to insure security by giving gifts, presents, money, promises their money to some- body. attempted panelist The defense then to ask the second about the state 97-year-old neighbor of mental health of a physical whose health was “pretty good.” rejected described as The court this effort and refused to allow inquiry personal experiences. Kronemyer gener- about The court did allow to question ally subject long personal experiences. on the go as as he did not into inquire claims his voir dire was so restrictive he was unable to specifically prospective juror imagine elderly whether the could an client and attorney bequeath becoming give so attorney close the client would or money, up inquiry they to follow with an as to “what think about that.” questions reasonably designed was entitled “to ask to intelligent peremptory challenges assist in the exercise of whether or not such questions likely grounds are challenge also to uncover sufficient to sustain a 392,407 317, (People (1981) Cal.Rptr. for cause.” v. Cal.3d Williams 29 [174 However, may prospec 869].) employed 628 P.2d voir dire not be to educate “ jurors particular compel... a tive on the facts of case ‘to to commit [them] particular way, prejudice against a for or themselves to vote to ... [them] case, particular party, argue [them], a to to or to instruct indoctrinate ... ” p. 408; (Id., quoting ... in matters of law.’ v. West Coast Rosseau [them] 878, Cal.Rptr. People Cal.App.2d 655]; (1967) House Movers 256 882 [64 Cal.App.3d 1141, Cal.Rptr. 128].) v. 1145 Neverthe Helton 162 [209 less, phrased fairly questions legitimately designed dire voir disclose bearing life have a direct

personal juror’s personality or which features a exercise of upon challenge or reveal attitudes relevant to the a for cause they may merely because peremptory challenge be excluded intelligent an People v. juror (See line defense. a as to the defendant’s tend educate Cal.Rptr. Cal.App.3d 163].) (1983) Wells refusing inquiry the trial court erred allow We believe competent, a prospective they imagine that but jurors as to whether could voluntarily gift a to his her lonely, elderly might make substantial or client yes person A attorney. questions be or no. The answеr to such would either arguably subject to gift a is who not conceive that such could occur could event, any having open in this In being for an mind case. excused cause not person challenge. though Even a inquiry peremptory legitimate it is scenario, suggests imagine” such a this revelation finds it “difficult to concerning impartiality directly questions of such a relevant additional case, person’s irrespective that person juror of this to be a facts impartial personal any aside atti verbal he or she could be set assurance personal experiences tudes. A verbal statement or she will set aside facts, alone, concerning particular standing does and/or attitudes state impartial juror. In order for a person will be a fair and not establish court, necessary to party, make a determination it is and even the such they strongly experiences know nature of those and attitudes how experiences personal judging set are held. An averment that one can aside strength, simply may not be aware of a case of little value because one developed perhaps existence, which have because of even the of biases Williams, supra, experiences. (See People 29 Cal.3d personal v. 402-404.)

Nonetheless, has discretion to contain voir a trial court considerable Wells, Cal.App.3d supra, 149 (People dire within reasonable limits. v. Helton, 726; supra, Cal.App.3d 1145.) For People see also argumentatively. are instance, questions may rejected be worded incorrect, may Here, imagine” questioning well be you “can form of the it remedy inquiry subject into the matter contains is not to curtail but question. party rather to force a to reframe the but hand, prejudicially dire is reversible voir not On the other restrictive Williams, 392, potential where People supra, ruled that per se. v. 29 Cal.3d law, materiality to the particular doctrine of its issues only bias relates to a denying evaluating prejudicial effect in the should be reviewed case here, we find Applying a similar standard subject. voir dire on that defense, i.e., lonely, elderly, that a inquiry directly relevant to the is bequested liquid major assets and wealthy gave share of his client Here, attorney. where portion estate to his of the remainder his substantial gifts allegedly immediately occurred before and after the client became mentally debilitated, even objective person the most might reasonably be expected to doubt the Kronemyer’s fact, bona fides of In version. with the publicity surrounding reported attorneys defalcations of toward their clients and client’s property, we falling believe it is a matter within the cate- “ gory of those ‘which community population either the local large or the commonly strong known to feelings may harbor significantly ... skew ” Williams, (See People deliberations in fact.’ supra, 408, v. 29 Cal.3d quoting United (D.C. States v. 1973)475 Thus, Robinson Cir. 381.) F.2d scope inquiry we find the of the to be exceptionally relevant.

We carefully have read dire, the entire record of voir evaluating prejudice, that, Williams, mindful People unlike the facts in supra, 29 Cal.3d ruling the court’s did completely not foreclose the inquiry defense into the relevant area. The defense prospective voir dire of most jurors extremely cursory attempt and with questions no depth ask even permitted in the by the trial court. The only defense peremptory exercised one challenge. Given the relevant information which could upon proper have been elicited questions within the rules, confines of the trial court’s prejudice. there is no Properly Perjury Was Convicted (His Count One Preconservatorship Accounting) alleged

Count one Kronemyer committed perjury preconservator- on his ship accounting filed on October 1977. His defense was that under a interpretation reasonable probate requiring court’s order accounting, the accounting literally true. He claims the court erred in (1) entering judgment prosecution his favor at case; the close of the (2) excluding evidence supporting defense; prejudicially changing jury a subtle defining instruction “process” the term after the defense had upon relied argument. it in final Acquittal

The Motion for probate The conditionally granted court Kronemyer’s petition for appointment Baily’s conservator on “fully condition first account for all properties transactions and the any way the conservatee in financial processed by petitioner during immediately the months preceding filing petition.” accounting listed financial transactions of conducted for

Baily through joint checking account from which he paid routinely bonds, bills. He did savings not list transfer of Baily stated, accounts and checks Kronemyer from to himself. penalty under perjury, that he handled all proposed financial transactions of the conser- during period vatee through checking the account No. 10291038 maintained

338 Bank, Sаvings Diego and Main proposed at San Trust the conservatee Diego, San 92101. Broadway, California

Office 540 probate may reasonably court be Kronemyer argues the order of the only listing the financial interpreted requiring a routine transactions as years Baily.” had with Because “all he had over the through the accounts Kronemyer had “over was the one had the bill-paying this account except required nothing transac Baily, he he was to list years” with assumed through He not include financial transactions through account. did tions this bonds, accounts, they bank and checks because acquired Baily’s he nothing do with that account. had denied,

Kronemyer’s acquittal for under section 1118.1 was motion interpre- Kronemyer’s because the trial court believed reasonableness Here, question was correct. a of fact. The trial court tation remained hearing in which following a contested probate order was made court’s period of time both before after court was made aware that for some acting lawyer, been as his accountant and Baily’s disability, had was Krone- his affairs. The order made insure handling was all financial required by fiduciary strict myer affairs had conducted these financial accounting Baily. unquestionably relationships existing towards person satisfy probate Kronemyer was a who could court that ordered carry fiduciary obligations of a conservator of out the strict be trusted to requested person and It was because concerns that Krone- Baily’s estate. dealing Baily’s property myer might improprieties committed have Therefore, very least, hearing. at the the trial during the contested raised allowing go jury. was correct the issue to court anyone interpretation else Kronemyer argues his and not that of must though a prevail given. is Even declarer knows ambiguous when an order interpretation person interpretation contrary is to the found his question, posing long as the declarer states the literal making an so order interrogator, he, light meaning attributed truth “in that (Bronston answers,” support perjury conviction. questions it will not 568, L.Ed. 2d 93 S.Ct. (1973) 409 v. United States U.S. [34 Cal.Rptr. 641, In 10 Cal.3d 595]; see re Rosoto However, Kronemyer’s that “all 980].) contention A.L.R.3d P.2d properties any way of the conservatee financial transactions and ambiguous so that the trial processed by petitioner” as matter lawof simply granted acquittal not correct judgment have court should that, beyond doubt as to Krone juryA could find a reasonable on this record. interpreted only way, reasonably one myer, could be the court’s order deliberately he handled all lied when declared period during through bill-paying the relevant financial transactions checking account. prosecution prove claims the had to he did not believe interpreted way

the court order could be to in claims have so done acquittal order judgment to avoid a equates under section 1118.1. He facts of this with in v. (6th 1967) case those United States Wall Cir. F.2d ques where the court “There no stated: was evidence to show what the tion meant to Mrs. Wall when she answered it. In the absence of such evidence, falsity no could determination be made to the of her answer.” (Id. p. 400.) The granted court therefore held the district should court have judgment acquittal. However, in theWall defendant was whether asked she trips” person. had “ever been on with a certain When she denied this she was convicted peijury she leaving evidence that had been observed person. motel with phrase trip” room that The court found that the “on a traveling together someone could mean either staying together, or and interpretations prosecutor because there were two reasonable had to show the question defendant staying together. understood related A similar fact situation is in Cowley (9th 1983) discussed United States Cir. Here, however, 720 F.2d 1037. correctly Kronemyer’s trial court found suggested interpretation plausible properly was not denied his motion judgment acquittal. Testimony

Exclusion of excluding expert next claims the trial in court erred testi mony probate probate prac that the order meaning court’s had no definite tice. trial, Kronemyer proposed

At experi- attorney, years call an with 26 specialist ence and a in probate practice, phrase to testify any way “in processed by probate orders, him” commonly was not used had been never probate order, known him to be in meaning no fixed had conservatorship probate practice. However, agreed The court refused. it permit testify provision the witness to there was no in the Probate Code accounting for an period appointment for the preceding the of a conservator. The trial court did not abuse its discretion.

Kronemyer claims language he was entitled to show the in the order had meaning experienced probate However, no among practitioners. fixed even prosecution except anything never contended this an that order was one, extraordinary specifically designed unique fit the of this situa- needs proposed testify tion. expert interpret witness was not to as an probate meaning phrase special court order. The fact the has no settled probate jurors meaning proceedings argued clear made to the prosecution’s predicated extensively. Kronemyer’s claim the on its case argument he, experienced lawyer, a well educated and should have he was entitled to rebut intended to cover and that the was

known what order meaning among experienced no fixed even the order had by showing this experience is, disingenuous. Kronemyer’s education and practitioners, again, matters, particular conservatorship personal involvement in the and his made, unique relevant back- during which the order was is the proceedings showing experienced prosecution’s argument. A that another for the ground phraseology seen such an order and its was not probate lawyer had never Code, The mate- way in no undercuts that contention. in the Probate defined privy proceedings the the Kronemyer was rial facts here are that experience uniquely background and in the role tailored and his order espe- arguably This made him attorney for fiduciaries. fiduciary and of to disclose all financial transactions cially order was intended aware the totally upon of estate which had bearing the condition accounting period. during the administered Jury The Instruction by unilaterally the trial court erred

Kronemyer meritlessly contends any way processed by,” relating phrase “in modifying to the an instruction upon originally agreed argued jury in reliance had after counsel upon instruction. any way processed phrase “The ‘in agreed original instruction was meaning no fixed or defined 1977 has

by’ in ... order October [the] ‘processed’ English language and probate practice. The used the order dispose of, by largely some take attend to or as follows: to care defined transaction).” procedure (like process other similar loan or routine phrase argued would had the court instruct During argument the defense “processed” meant, practice meaning probate and that or definite no fixed of, order, dispose some care attend to “to take the context of argued only largely proсedure.” From this the defense largely routine bill-paying routine, account. repetitive matter handled savings bonds) accounts and Further, (gifts of extraordinary transactions proved beyond least it could not be not fall within that definition or at would gifts were included. Kronemyer knew that such reasonable doubt “Now, phrase any way ‘in actually given was: The instruction no fixed or defined 1977 has processed by’ in ... order October [the] English part Code. The order uses meaning. It’s not of the Probate of, care attend to or language, process is defined as follows: to take talking are about attor- dispose largely routine matter— and we some other similar people—like proceeds—process of loan or neys, lay transaction, to some end. or a series of actions directed ‘pro- College definition of how American Webster and New “That’s the great No what it means. English language. Should mean cessed’ used in the and asked the modified instruction mystery.” objected The defense wording. original It refused. to substitute the court violates section 1093.5

Rronemyer claims the court’s modification of all instructions request must advise counsel the court on of counsel states give rule is to argument. This given commencement of to be before jury. Material argue case to the parties opportunity intelligently an may deprive a upon departures agreed instructions modifications and from Supp. 1, Cal.App.3d (1978) 83 (.People a fair trial. v. Sanchez defendant of de minimis. It Cal.Rptr. here to be 850].) We find the modification argu- the defense instruction nor undercut changed neither the thrust of the ment. the order was

Rronemyer argues of the court’s comment that the insertion what great and should mean it English language, mystery was of no However, meaning. means, negates his contention the order had no obvious There, by originally proposed instruction. this concern is not even met probate meaning merely fixed or defined the court states that it had no phrase ambig- proposed way suggested the practice. The instruction in no meaning. uous, in the context this case it has no obvious or that of language in the Kronemyer’s complaint is relied on second had phrase attended to proposed argue covered matters instruction wording procedure.” changed the largely “some routine When the court directed “like a series of actions “largely routine matter” and added ... end,” includable argument gifts he claims his were not to some vitiated. Rrone- inventory they extraordinary beсause were transactions was established, repetitive method procedures an myer claims routine connote account, i.e., recurring event, paying through joint handling some bill proce- handled, imply thing ‍​​​​​​​​​‌​​​‌​‌​​‌‌‌‌‌‌​​​‌​‌​​​‌​‌​​​‌​‌‌‌‌​​‌‍being not the routine matters that it is the while statement, closing Thus, handling, latter that is routine. under the dure for not done procedure it was would not be a routine because savings accounts incorrectly states Rronemyer does not contend the instruction regularly. argument his law, prejudiced alterations his case because onlv that the modifica- he been forewarned jury would have been different had argu- jury with his However, given comparison of the instruction as tions. substantially given is suggest prejudice. The instruction not ment does talking “we are interjection, proposed. The trial court’s to the one identical simple that the matters people,” reminder attorneys, lay is a about of those matters judged in the context routine are to be be characterized as Kronemyer’s argu- prejudice lawyers. did not This modification dealt with dictionary mean definition should court’s comment the ment. The further special means, great emphasizes there is no mystery,” merely it “no what technical definition issue. Properly Dr. Cross-examination

The Trial Court Limited Defense Corwin error

Kronemyer next the trial court committed reversible contends impeachment by establishing Dr. Miller told by preventing his Corwin suspicions Kronemyer Corwin had recommended Corwin of his and that prosecution testimony. Although a witness to the who would corroborate right safeguard to a and is is an essential fair trial cross-examination ‘“ judicially regarded “greatest legal engine as the ever invented for ’ ” Cal.App.3d discovery (People of the truth” v. Gutierrez Cal.Rptr. 130]), 547 187 we conclude the trial court did abuse its discre [ excluding this line under Evidence Code section tion of cross-examination 352. concerning Baily from length

Dr. Corwin testified at his belief suffered hospitaliza- continuously approximately the time his senile dementia from of identify property or Baily tion death. He could not his until his stated forming charges. Dr. comprehend gift of the theft documents the basis physi- disputed by testimony lay witnesses and diagnosis was Corwin’s personal concerning Corwin his cians. wished to cross-examine against Kronemyer relationship suggest with Miller Corwin was biased Thus, Kronemyer offered to personal in his convictions. had a interest prove fishing partners; Miller of his and Corwin were told Corwin Miller suspicions Baily’s affairs certain regarding Kronemyer’s handling of and that appear invеntory; in the filed Baily gave Kronemyer bonds did not prosecution Baily’s had laya who observed Corwin told the witness support testimony. demeanor and could compe- potential highly jury’s ability

A to the witness’s bias is relevant (See People (1980) 27 tently credibility. her v. Green Cal.3d evaluate his or see, Code, 780, 1, Cal.Rptr. 1, 468]; (f); P.2d Evid. subd. 19-20 609 § [164 1190, Cal.Rptr. Cal.App.3d 1192 e.g., People (1983) Adams 149 v. [197 prof- However, speculative 623].) nature minimal relevance of the First, ruling within its testimony fered shows the court’s was well discretion.9 suggest Miller personal relationship does not itself between Corwin and mani- that a in favor Miller would Any hypothetical suggestion, bias. bias proffered admitting rejecting evidence and 9“The court is vested with discretion trial appeal discretion unless is a manifest abuse of that its will not be reversed on there decision 354.)” Const., 13; Code, 352, 353, miscarriage VI, resulting justice. (Cal. Evid. art. in a §§ § People Cal.Rptr. 814]; Love (1977) Cal.App.3d see also v. (People Wein [137 Cal.Rptr. Cal.App.3d 532].) 940-941 by being suggestive against anyone fest itself further of Corwin’s bias as to pure speculation.10 Further, prejudiced, whom Miller was Dr. Corwin’s diagnosis essentially gave of senile dementia was stated the declaration he September Baily organ when he stated suffered from chronic brain syndrome. discovery inventory Miller’s that the did not refer to the bonds 1978; thus, previously had received made in Dr. Corwin’s diagnosis predated of senile may dementia conversation he have had with Miller about the testimony bonds. Corwin’s trial consistent diagnosis his 1977 may apprised inventory and that he have been testifying trial, knowledge may before and that this have influenced his testimony tangentially speculative trial is so as to have almost no relevance on the issue to which he testified.

Further, the prosecution potential fact Dr. Corwin told the of a witness cooperative prosecution confused mental state shows he is a face, witness. On its cooperates prosecution that a witness with the is a fact; cooperation neutral imply Although does not bias. identification of a testify supportive witness who could diagnosis implies to facts of Corwin’s establishing his interest in credibility, his own this is not the kind of bias implying hostility defendant; toward presumably all witnesses can be deemed to have an establishing credibility interest in their with the trier of properly fact. The court limited cross-examination Dr. Corwin. Permitting

The Trial Court Did Err Not the Prosecution to Kronemyer Attorney’s Fiduciary Cross-examine on His Awareness of an Responsibility Properly Significance to Clients and Limited the of Such Evidence

Kronemyеr permit- contends the trial court committed reversible error ting prosecution imply to professionally accepting he was unethical in Baily’s gifts. Further, compelled jurors that the he instructions to conclude subject professional discipline was to accepting gifts for and that the breach of ethics was guilt. relevant to their decision on his Propriety Regarding the Prosecution’s Cross-examination Profes- Responsibility sional indepen- Baily testified he mentioned to that he should seek

dent gift.11 counsel the first mention of Krone- intent to make a substantial myer repeat repeated gift did Baily not this advice when his intention. any event, early 10In defense counsel established in its cross-examination of Corwin neighbor good Miller was his and a friend of his since 1956. 11Kronemyer very emphatic, (Kronemyer) only saying was not would feel more that he Baily independent “comfortable” if consulted advice. cross-examination, Bar Kronemyer was if he knew the State

On asked a disciplined receiving gifts from clients and that there existed lawyers accepted his lawyers gifts. such Over presumption undue influence where attorney-client objection, Kronemyer was asked was aware the whether relationship nature and that Civil Code section is of a strict and confidential presumption influence) apply to (creating a of undue is deemed dealings attorney an and his client. contractual between and, inquiry irrelevant even contends this line was relevant,12 prejudicial Evidence section 352. if was under Code Cal.App.3d People is a case like

This Stein attorney’s Cal.Rptr. jury was it could consider an 299], where the advised prove fiduciary tending a a of his duties to client as violation factor words, the specific embezzlement. In other underlying intent the crime of professional finding the rules of conduct jurors were told a Stein violated Here, specific bootstrapped finding a intent to embezzle. could be into Kronemyer’s version of the events impeaching the evidence is limited to surrounding purported gifts.

However, relevantly Kronemyer’s here the evidence sheds doubt purported gifts. unlikely knowledgeable it is This because version client, accept gifts especially from one whose lawyer would substantial presumption of age undue influence obvious and loneliness would bolster Instead, potential discipline. Baily if setting gifts and bar leading to aside the so, competent Kronemyer, do making gift was desirous of such a Baily have made knowledgeаble experienced lawyer, would sure gifts aside the avoid independently later efforts to set advised defeat disciplinary action. directly relevant was intended to elicit information

The cross-examination People’s defense, of donor rebutting to wit: lack theory to the prudent attorney to avoid knowledgeable a would seek intent. It assumed indepen- presumption requiring his client to obtain by of undue influence preserve reputation. Krone- counsel, gift, also his only dent not to but Baily knowledge require to obtain myer’s conceded and his failure to permissible no donor intent existed independent counsel raises the inference a party suggests review gifts —no was intended. The lack of third series that, except evidentiary guided by principles as otherwise for review are the basic 12We admissible; statute, rele provided by evidence includes “evidence all evidence is such relevant declarant, having any tendency credibility hearsay reason of witness or vant to the consequence prove disprove any disputed of the action” fact to the determination that is or determining Code, 210); relevance. (Evid. vested with wide discretion and the trial courts § support Green, cases, any supra, 1,19.) (People evidence that tends 27 “In criminal v. Cal.3d Cal.App.3d Whitney (1978) presumption People v. 76 is relevant.” or rebut the of innocence 863, Cal.Rptr. 301].) 869 [143 Accordingly, desire to avoid donor intent. inquiry was directed toward having probative evidence value. Jury Instruction jury prevent

The court instructed the the law attorneys does not being they from beneficiaries in receiving gifts wills draw nor from from emphasized clients. The court being unprofes was not tried for However, sional conduct. the instruction lawyer also stated: can be “[A] discipline subject receiving gift for bequest or from a client where the gift keeping is more than a one in relationship modest with the he has with client, attorney and the has not sent client lawyer to another for regarding proposed gift bequest.” consultation The court then added unhelpful phrase: “Whether [Kronemyer’s] were actions ethical or uneth ical, under the Conduct, Rules of Professional may by be you considered only deciding the facts of the case. You ^[11] may not find the defendant guilty any charge upon based a belief that his conduct was unethical.” Although it is difficult to determine what “facts of the case” were intended by instruction, this it jurors is clear the impression could have been under no Kronemyer’s guilt predicated or innocence upon any finding prоfessional emphasize point, misconduct. To this the court stated: “undue influence... is a civil rather than a criminal matter and in itself cannot form prosecution. the basis for a criminal It consists of acts or conduct which the testator’s will is person. overcome the will of another Importuning, speak. People’s so to That’s not either theory, part nor is it of this case. Is that clear everybody?”

The court’s lawyer statement that a subject discipline can be receiving gift a substantial from a sending client without that client to lawyer explain another for a lawyer consultation not disciplined does can be presumption under those circumstances undue is not if influence (See Magee (1962) rebutted. v. State Bar 58 Cal.2d 429-430 [24 Cal.Rptr. 839, 374 P.2d 807]; Eschwig see also (1969) State Bar 1 Cal.3d Cal.Rptr. 352, 662]; 459 P.2d 35 A.L.R.3d Dixon v. State Bar [81 Cal.Rptr. 30, Further, 32 Cal.3d 321].) P.2d independent dispositive. However, lack of instructions, counsel is not clarity, prejudice even if not a model of did Kronemyer. Admitting Uncharged

The Trial Court Erred in of Evidence Acts Involving Tax Refund Checks'13 permitting regarding Kronemyer’s 13Because we conclude the trial court erred in evidence disposal Baily’s conduct, of tax in refunds 1978 and 1979 as evidence of similar criminal we arguments objections do not address his alternative have the court should deemed his to admissibility being part as based in on 352 Evidence Code section or should have decided sponte. the issue sua 346 Kronemyer cashed permitting

The court in evidence that erred prior in Baily’s proof engaged in as embezzle tax refunds 1978 1979 criminal, Further, adjudicated although these had never been ments. acts jury they prior the told the were crimes. court $9,000 Kronemyer approximately in the amount of received tax refunds checks, Baily’s Baily tax When endorsed the 1977 and 1978 returns. in Kronemyer put savings in did not list them them his own account and conservatorship accountings. they refunds the 1978 or 1979 He claims were an due of a 1977 transaction when made which became because told, Baily generously When told overage payment advance taxes. keep they (“When him the when the refund comes to refunds were received. in, conservatorship it yours.”) The refunds were received after the report they only he did not them because established claims part represented gifts predated conservatorship and never which the were consequences Although Kronemyer gift of knew the tax of Baily’s estate. gift any gift surprisingly, transaction he never filed tax return. Not prosecution transactions, proved be although these never to believed crimes, Kronemyer’s propensity Baily’s property steal under the inferred guise gifts and then lie under about that fact. oath (b)

Evidence Code section subdivision authorizes admission prior wrongful prove acts some character-trait evidence the form of specific (People propensity fact an to commit a crime. other than individual’s Cal.App.3d 55, Cal.Rptr. 375].) (1981) 125 70 Such evidence v. Poon [178 perpetrator where is admissible it is relevant to the issue the intent Thompson 27 committing charged (People (1980) as crimes. v. acts Cal.3d 457, Cal.Rptr. People (1978) 315]; v. Thomas Cal.3d [178 Poon, People supra, p. 70.) Cal.Rptr. 215, 433]; 573 P.2d “However, justified cannot be admission of evidence of other crimes question asserting purpose; the remains whether merely an admissible ultimate particular offenses is relevant to the evidence of defendant’s other danger prejudice to dispute. fact in there is inherent Because [Citations.] given jury, such uncharged when evidence of an offense is accused only when admitted [citation], must be received with caution evidence probative outweighs prejudicial value its its effect. [Citations.] (b), the

“Consequently, section subdivision to be admissible under require- satisfy foundational ‘other offered as evidence must certain offense’ time; (2) not ments; charged; crime remote it must be ‘similar’ and, respect merely to other evidence (3) not cumulative Poon, (People v. People ....” may prove use same issue. [Citations.] uncharged supra, p. 71.) Thus, admissibility of an Cal.App.3d at evidence, materiality the facts offense, rests on like all circumstantial

347 sought proved disproved, tendency uncharged to to be or the crime prove disprove fact, policy or rule material and existence of or ascertaining requiring exclusion of “In whether relevant evidence. evidence tendency prove fact, of other crimes has a to the material the court first must ‘ uncharged “logically, naturally, determine whether or not the offense serves ’ and reasonable inference” to that establish fact. The court [Citations.] similarity describing ‘must look behind the label the kind of or relation offense; charged between the it [uncharged] offense and the must examine precise similarity respect elements of between the with offenses to proffered issue which satisfy for the evidence is and itself each link of strong.’ the chain of and reasonably inference between the former the latter is uncharged If connection between the offense and the ultimate [Citation.] dispute clear, fact in is not the evidence should be excluded. [Citations.]” (People Thompson, supra, p. 316, 27 omitted.) v. Cal.3d at fns. prove

“When fact, tends it is evidence to material said to rele be (People vant Thompson, supra, 303,316, 15; evidence.” Cal.3d fn. Evid. Code, words, In §210.) tending prove other reasonably evidence disprove disputed fact is relevant and barred admissible unless statute. Relevancy precise is not alone, applies to a equally restricted factual issue but when it tends to establish fact from which the existence of another fact be directly (People issue can (1979) Cal.App.3d inferred. v. Cordova Cal.Rptr. 852].) 669 [158

Consequently, when evidence is that a offered defendant trial, committed an offense other than for which he relevancy is on its establish some material fact other than a defendant’s character-trait or crimes, propensity probative to commit must be substantial in order for its outweigh danger value to prejudice requiring manifest of undue exclu sion under (People Evidence Code section 352. v. Tassell 36 Cal.3d Cal.Rptr. 567, Jefferson, citing 1], 679 P.2d Cal. Evidence 33.6, (2d p. 1211.) ed. 1982) Benchbook § evidentiary uncharged value of offense evidence cannot be prove logically Kronemyer’s specific

deemed substantial it unless tends present Here, charges. glance, intent to steal first the manner Kronemyer physically property and it to obtained transferred appears substantially charged uncharged himself both the similar in offenses; existed, fiduciary relationship Baily’s ability compre the same diminished, hend and equally deal his financial affairs Krone myer accounts, signed by Baily used documents transfer the bank case, proceeds Further, bonds and to endorse the refunds. the tax each alleges gifts predating conservatorship transfers were gift lacking except Kronemyer’s the evidence is either uncorroborated 348 suspi-

testimony by prepared under corroborated documents and executed or Moreover, apears to have been made under cious circumstances. no transfer gifts. any for suggesting factual circumstances motivation However, prosecution’s theory uncharged acts the is flawed because these by merely describing prior physical to the acts do not establish intent steal attempted with charged Contrast the case where a defendant is committed. showing only pedestrian robbery on facts that he brandished a firearm a night particular away ran at a where the victim late at deserted intersection trial, At hearing any being touched. the defendant without words and without prior approximately is with two occasions at confronted evidence place pedestrians, asked them the same time and he brandished firearm at money, Upon finding jury took it and the defendant their absconded. acts, prior prior physical did commit those his intent to steal those from by proved thefts, probative of his strongly is the and is victims established offense, having during charged by a similar the frustrated the later intent case, Kronemyer’s in to refunds flight. But this intent steal tax victim’s proof Baily to him by mere he had endorse these checks not established may in be and because other reasonable inferences drawn. 1978 any great danger prejudice, of doubts as to Because of the undue specific charged in relevancy uncharged offenses establish intent of against (2 evidence. admissibility crimes should be resolved of such Jefferson, Here, supra, p. 1198.) probative value of the §33.6, at set within uncharged admissibility does meet the standards forth offenses precedent. admitting Accordingly, trial court erred the cited case dealing Kronemyer’s tax refunds evidence theory prior in a manner and on the acts were crimes committed similar tried. being as the acts for which he was with the same intent steal Further, speculate Kronemyer although may intended steal one refunds, finding. do make To jury they was never told need such the tax Here, jurors required relating guilt. were so have a minitrial would an intent they prior these were committed with never told had to find acts They steal, proof necessary that intent.14 were to estsblish the burden In prior by court’s instructions. other flatly told acts were crimes these deposits words, question were of whether the tax refund thefts instruction, admis without trial or conclusively resolved the court’s guilt. sion Cal.App.3d recently People addressed Simon 14Asimilar concern reported conflicting Cal.Rptr. There, apparently we views in discussed 129-135 [228 855]. required proper jury to to find the existence held was for the be standard decisions prior preponderance specific evidence. in the acts intent Excluding Admitting of Error

Other Trial Contentions Conducting Evidence, the Trial and Otherwise alleged laundry in admit Kronemyer list of other errors next sets forth trial, conducting the ting excluding otherwise the cumula and evidence and holdings requires He relies on in he claims reversal. tive еffect of which 313, 113, Cal.Rptr. 125 389 P.2d People 61 Cal.2d (1964) v. Underwood [37 165, Cal.Rptr. Cal.3d People (1982) 31 907 647 937]; v. Cardenas [184 Cal.Rptr. 37 569]; People (1984) v. Cal.3d 436 P.2d and Holt [208 People’s 1207], disagree We with the counterclaim P.2d applies, inapplicable. Theoretically, always is it “cumulative errors doctrine” process and a fair is defendant received due trial. for the litmus test whether allegation Accordingly, and assess cumulative effect of we review each probable jury have reasonably if would reached any errors to see it Holt, (People supra, in v. their absence. a result more favorable defendant Cardenas, p. 907; People 459; People supra, 31 Cal.3d at p. Cal.3d v. 243].) P.2d Watson 46 Cal.2d Kronemyer argues In he in a case summary, has been convicted prosecution upon perception credibility in a largely jury’s turned of his Kronemyer consisting largely evidence. claims the record of circumstantial guilt throughout of his the trial and that shows the trial court was convinced personal feelings worthy belief, and its led it to both favor and he was prosecution. Kronemyer’s actively We address contentions assist seri- atim.

Alleged Evidence Erroneous Exclusion Defense Kronemyer’s Military 1. Record experience,

Kronemeyer attempted military naval introduce argues rejected as Although circa World War II. he the evidence was irrele provisions vant, discretionary of Evidence exclusion was on the based Kronemyer’s potential was that Code section 352. The relevance naval Baily he and shared background support his contention common tended biology, interests; in marine although, Baily’s “naval” interest was histor India, significance Star and Maritime Museum. sailing ical vessel Baily permitted evidence and shared to introduce was history, biology although his evidence naval common interests marine background only minimally military relevant His miniscule indeed. ruling within was well its discretion. to these issues and the court’s Zona Baily’s Marriage Proposal to Gibbs 2. Baily’s lawyer, widow from the

The court excluded evidence Baily Mrs. had testified Gibbs, represented until 1971. Gibbs Kerber who relationship Baily her a social well as a husband had business she his wife. wife died 1965 and Kerber Gibbs died 1971. marriage proof Baily proposed Mrs. would was that Gibbs state offer by Baily stating “I am shortly prefaced after her husband’s death in person seeking alone; you’re pictured Baily lonely alone.” as a The defense companionship willing burdens and make and who was to assume substantial financial it. claims substantial sacrifices order obtain proposal willingness marriage highlighted that and his to assume loneliness Further, responsibility marriage rejec- of a to overcome it. he contends proposal explains compan- marriage why Baily would to seek tion of tend elsewhere, ionship Kronemyer. significance even with of this He claims the prosecution testimony testimony because of is enhanced the introduced was Baily personality, to show was of a that he several witnesses different unemotional, aloof, unlikely and to have suffered self-reliant therefore companionship making lawyer. “buy” gifts to to his from the need showing However, Kronemyer’s ‍​​​​​​​​​‌​​​‌​‌​​‌‌‌‌‌‌​​​‌​‌​​​‌​‌​​​‌​‌‌‌‌​​‌‍purely speculative. There is scenario is no attempt wooing persuade anything 1971 remarks reflected but an to is him. the marry widow found attractive to Whether comment recent impediment marriage is legal of more than a bare statement the lack inat this not even hinted record. Ruling Service

3. Internal Revenue specialist explained gift” transferring prop A tax the “net method of by Kronemyer filing gift the tax returns. erty. gift The net method was used explained the tax he had miscalculated the amount of Because bonds, one necessary Baily that it was to include two additional so purported gift, he wanted purchased later than date of the the testi to bolster his jury complexity informed of such calculations Ruling (76-104) The an Service mony. defense offered Internal Revenue illustrating algebraic calculations which could be used to ascertain several However, gifts. The it the tax involved net trial court ruled inadmissible. already given by the cumulatively supported the extensive evidence it jurors concerning computations. The were expert of such tax the intricacies have thoroughly and could not already advised of the defense contentions correctly misconception expertise needed to under about been gifts. net To the Internal Revenue compute tax liabilities on the extent issue, they cumulative on an were relevant to this are Service illustrations erred, prosecution. If trial court which was not contested issue or other errors. standing it harmless alone combined with Polygraph 4. Evidence polygraph exami- expert opinion results of a trial excluded court stating he never truthfully given Kronemyer showed he answered

nation money him Baily give Baily; never caused property from money or stole mentally Baily misrepresentation; thought decеption or property by him; everything disclosed gifts of bonds to competent the time he made conservatorship accounting October in the order asked for the court order; encompassed by language of the nothing 1977; he believed omitted April gift Baily signed deed of on stated the first was truthful when he April 1, 1977, Baily had stated before 4, 1977, July and that the second on give some of his bonds. he wanted Evidence rejected polygraph evidence under court The trial usurp unreliable, likely jury’s consuming time 352 as Code section court’s decision validity of the trial We need not determine function. inad polygraph makes evidence Code section 351.1 now because Evidence retrial, Therefore, parties. on except stipulation of the missible (1984) 154 (People Seldomridge v. would not be admissible. evidence Cal.Rptr. People Dellinger (1984) Cal.App.3d 377]; Cal.Rptr. Cal.App.3d 503].) 302 [209 polygraph evidence

Kronemyer us finesse the issue of whether the asks to ruling as error in the be retrial and review the court’s would admissible on trial, stood, upon law as it and add it to the other current based the then evaluating Kronemyer had a fair trial. accumulated error in whether hearing reliability polygraphic The trial held a full on the of the court jury.15 procedure presence outside the of the This conforms evidence Cal.App.3d Witherspoon Superior the rule established Court erred 24,26-27 Cal.Rptr. argue the trial court does not 615]. testimony purpose trial determining polygraph the is unreliable for the Instead, argues the trial court upon the it received. based evidence reliability, the former jury determine the issue of should have allowed the to there whether being only making preliminary limited the determination permit jury question. sufficient to to decide the is evidence 24.1, proposition that Jefferson, supra, page section cites 403, the trial deciding preliminary Code section fact under Evidence reasonably find jury the existence first determine whether a could judge must make the actual deter jury preliminary fact and then leave it to of the determining foun strays. Code section 403 relates He Evidence mination. personal knowledge relevancy, preliminary where and other facts dational Here, inquiry under Evidence disputed. the court’s authenticity is governed preliminary fact determinations not which covers Code section 405 405, subdivi- Evidence Code section or 404. by Evidence Code sections 403 prior reliability polygraph testimony in a evidence had 15The trial court heard stipulated County 57714). Diego case, People (Super. No. CR Parties here San v. Parrison Ct. determining admissibility. expertise gained in case in use the that the court could part: shall determine the existence or nonexis- (a) states in “The court sion proffered preliminary fact and shall admit or exclude the tence of the question arises.” required by rule of law under which the evidence as procedure Here, reliability polygraph so preliminary fact was the experts meaningfully evalu- perceived could be result testified case. In cases jury accurately used to decide the issues this ated judge’s is final and involving Code section determination Evidence evidence, (See go jury. it does not to the ruling where the is to exclude Cal.App.3d 872, Cal.Rptr. 862].) Chapman (1975) 50 People v. 879 [123 Improperly Kronemyer’s Did Not Restrict The Trial Court Key Prosecution Witnesses Cross-examination power control an inherent to exercise reasonable The trial court has litigation it to insure the proceedings connected with the before over all within justice. The control of cross-examination is orderly administration of court, permitting cross-examination of the trial it to curtail the discretion Only abuse of already covered or irrelevant. a manifest relating to matters (1983) 147 (People v. Beach court’s discretion warrants reversal. Cal.App.3d 612, Cal.Rptr. 381].) 628 [195 dementia, ability Baily lacked testified suffered from senile

1. Dr. Corwin property gift documents and his condition identify his or understand hospitalization in preexisted his 1977. probably concerning Baily notes reflected a conversation with physician Corwin’s India, listing streets over trip the Star the August he had taken to an of of those ship. was asked if one Baily had to that When Corwin traveled India, statement prosecutor’s objection without led to the Star the streets of Baily was question designed was to show was sustained. The grounds of identify at a time surroundings sufficiently to routes traveled of his aware directly While not opined suffering from senile dementia. he was Corwin support theory that at least diagnosis, it tended to the defense rebutting that However, precluded from the defense was not Baily was aware. on occasion by asking the court to take accuracy Baily’s recollection establishing the appar- ruling, The while geography the and street locations. judicial notice of impeded getting incorrect, meaningfully the defense could not have ently fact, unequivocally Baily from and, evidence shows point across this alleged regarding The other errors had moments of awareness. time to time equally are minor. of Dr. Corwin cross-examination Baily mentioned housekeeper, Kelly, was asked whether Lishie 2. The did Kelly When said she he became ill. being before “fond” testimony in deposition know, impeach her with defense tried to not “anything to effect” Baily ever said was whether had which she asked “leading” prosecutor’s objection The as Kronemyer. that he was fond of “leading” question certainly “improper” While the was was sustained. calls “improper,” improperly recognized ground is no labeled it and there that____’’ impede- Again, was no opinion, “anything the effect there an question deposition rephrasing using ment from or defense attempt Kelly’s in an to refresh recollection. effort hospital, mentally in the Baily whether was alert Kelly 3. When was asked scope direct prosecution’s objection question was out of the that direct prosecutor’s position Kelly’s the fact The based on sustained. perception Baily’s testimony only pertained her mental condition after affection, his hospital. displays of She his emotional left the contrasted habits, reading apparent ability work and his to concentrate his habits hospital. Kelly no ever preceding entry that into the There is evidence hospital. Therefore, to allow this Baily was in the failure saw while he prejudicial this inquiry cannot be deemed record. (pre- signing a document Kelly

4. testified that when she witnessed up signature line. sumably codicil) everything was covered but the the ninth signing a made her uncomfortable The defense asked her whether document without sign and whether believed she should not such document she properly irrelevant. reading objections it. court sustained the as Alleged Favoring of the Prosecution The Trial Court’s Disparaging the Defense questions: Example 1: objections Sustaining 1. frivolous defense intentionally, falsely swore to When was asked whether he objection was leading question conservatorship inventory accounting, a in his People rely suggested by Jefferson California sustained. The on the test Benchbook, page question is a supra, volume that Evidence question person leading question “if a would conclude from reasonable way question one suggesting that the examiner is the witness answer However, expect Krone unlikely rather than the other.” as one would anticipating an myer’s question affirmative counsel to ask him the stated response, the answer. A defen question suggest the form of the itself does not questions, and dant, witnesses, responding to like all other is restricted to Thus, his proceed only way deny he can is in narrative. the not allowed to may guilt by way We no reason that answer or innocence is of answer. see unlikely possibility that lawyer by not elicited his own rather than the be However, jurors opportunity in the given cross-examination. he will be the position relating guilt or innocence Kronemyer’s were trial well aware of preju Any error is not pertained to those matters. and his state of mind as it dicial. objections he of the most evidence excluded because

Kronemyer admits However, eventually admitted. as “frivolous” now characterizes impact lengthy evidentiary during the defense complains much of its it lost was so the end of trial defense counsel for admission and struggle prosecutor’s “carping” sustaining to the court’s habit the conditioned in this longer rulings. even We find no merit objection that he no waited complaint. occasionally interjected trial court: The court Objections

2. raised the prosecutor support objections. to his would state them as grounds before the occasions, prejudice. happened we no error or Although on several find this prosecution and Kronemeyer claims the trial court treated presence in differently disparaged and defense counsel defense examples find no mean the list of cited to us and jurors. We have examined ingful in treatment.16 difference complains required allow voir dire exami-

Kronemyer the defense was trial, noting expert they the court witnesses before testified at nation of three prosecution expert. significance require procedure of the this did requested pretrial exami- murky never argument is since defense of this Corwin, Nor, exception prosecution of Dr. witnesses. nation of “expert” opinion; Corwin’s prosecution testify to and Dr. did witness role Baily’s condition opinion upon his direct observance of based prej- argument unarticulable attending physician. Kronemyer’s that some preview prosecutor was allowed to exist because the udice must be deemed to spurious. and allowed to rehearse his cross-examination defense evidence Prejudice Prosecutor’s From the Has Failed to Show Jury Distributing to the a “Guide to Information” prosecutor argument, final of the evidence and before At the close pleading Information,” in the comрaring counts a “Guide to distributed transactions, count allegedly involved each descriptions dates distribution of objection was no to the prosecution exhibits. There a new point during his motion for Kronemyer first raised the document trial. that,” quipping attempt “I was afraid of trial court at humor resulted An occasional question my provoked Honor, your question just “Your last counsel stated

when defense much not,” think we have mind”; responding stated “I don’t “I trust when defense counsel ques unimportance his line of these comments insinuated the contends more.” purport comments. tioning. the and effect those overstates evidence, although juror was introduced each The “Guide” never provided copy. record is to whether with a The silent as juror alternate in the copy jury a room. claimed any juror took into the argu prosecutor the after evidence the retrieved documents absence of that copy ment, possible one went with conclusion that at least further, Kronemyer Bootstrapping states this violates section jury. may given jury papers to all received

limiting be to the the documents instructions, juror’s own (except depositions), the and the in evidence court’s notes. supporting to show the of facts Krone-

We are satisfied the burden state and, below, upon of the myer’s him on the state evidence contention rests it correctly the trial court determined had not been carried. Requires All

The Erroneous Embezzlement Instruction Reversal of Embezzlement Theft Counts Based on lodged reporter’s transcript appeal jury trial instruc on contained a purporting embezzlement

tion to define the elements the crime of jurors fatally failing tell the another’s It is flawed for that conversion of specific property is not embezzlement unless that act is committed with the Thus, deprive person property. jurors conscientiously intent to that find applying guilty this instruction could one of embezzlement without person finding to steal. intended holding

The defective and our it instruction reasons for constitutes revers- following preliminary are set forth whether regarding ible error discussion reporter’s accurately transcript reflects the actual embezzlement instruc- given by tion the court. jurors 22,1983, reporter’s

A. The court March tran- instructed reporter parties script July 1983. The was certified as correct People’s transcript promptly, apparently copies received of the because particulars was made October 1983. One request for its correction in other later, Kronemyer opening (Mar. 1985) years filed his brief and one-half inadequate major ground reversal the embezzlement instruc- alleging as a from CALJIC Seven precise to omissions No. 14.07. tion with a reference later, responded directly Kronemyer’s People argument months reported prejudicially instruction as arguing in their brief the written dispute accuracy transcription until They did not erroneous. argument they questioned integrity. when first its at oral March received, argument, People asked, oral During the March 1986 transcript permission accurately reflected to determine whether certified jurors. reporter compared the court’s instruction to the The court then her against transcript, shorthand notes by inserting and corrected the record property” the words “the for the word “it” in the final clause of the third paragraph; bearing an amendment which had no on the sense of the instruc reported originally tion as and certified. We then remanded the matter to pursuant Court, the trial court to California 12(c), Rules of rule with direc hearings appropriate tions to hold such as it deemed to determine whether actually given reported. the instruction accurately taking was After evidence judge, attorneys, reporter from the trial jurors, the court and several hearing judge reporter incorrectly concluded the court had transcribed the judge’s remarks, given trial substantially that the instruction conformity with ruling CALJIC No. 14.07.17The correctness of this orally argued reasons, following to us in November 1986. For the we superior hearing hold the evidence introduced at the court is insufficient to dispel legal presumption reporter’s transcript certified is correct. (Code Proc., 273; Code, 602.) Civ. Evid. § § court, support conclusions,

To its findings relied on it made from testi- mony taken at hearing. findings These were: reporter, Shulak,

“A. The court Judge Janice found Smith’s voice to be different from the judges. Judge voice of other She was not familiar with style Smith’s understanding Judge and she had trouble on occasion Smith jury. in his instruction to the Judge deep unique gravelly, speaks rapidly,

“B. Smith has a He voice. softly loudly. sometimes and sometimes

“C. Ms. Shulak Judge repeat did not ask Smith to slow down or himself. recording jury “D. Ms. Shulak treats the differently instructions from testimony interrupt judge or evidence. She will not if she does not under- stand what is go jury said. She stated she would written instructions questions any if she had about what was said. third, following, specific

“E. clause of CALJIC 14.07 ‘and there was intent,’ reportеd, sense, grammatically makes no and is incorrect. The pattern speech original is awkward. This is true for both the and the corrected transcript. versions of the Deputy Attorney

“F. It was District Charles Wickersham’s habit and along judge. During custom to read the reading instructions with the specific language hearing finding judge 17No was made as believed was used. case, not ask for a correction Wickersham did Mr. this the instructions read CALJIC 14.07. Judge Smith when instruc- to read the CALJIC habit and custom Judge was Smith’s

“G. It as written.” tions instruction judge whether the attorneys the trial recalled the nor

Neither form shown years in the exact one-half earlier given not three and was or was written whether testifying juror remembered reporter’s No by the notes. room, was jury but each were taken to the copies given instructions they if there. review them were he or she did not certain Rronemyer’s case only reported day reporter she The court testified not the trial given. Although she was jury were during instructions reported him two or three occasions reporter, had judge’s regular she Further, judge’s trial voice previous years. she found the during three every word. soft, very hard to catch requiring her to concentrate to be regularly reporting trials for more However, reporter had been this certified and it was her taking Kronemyer instructions years before than three accu- repeat necessary to insure judge down or when to ask a to slow custom repeat, nor does the judge down or did not ask this trial to slow racy. She might words which question any technical or unusual contain instruction during However, interrupt judge her confusion. it was her habit not cause if there was diffi- go jury written instructions but to to the instructions not very clear and she did occasion, her notes were culty. On this because compare 14.07, her problem she did not had a with CALJIC No. believe she problem judge that have a with the trial writings. with the She did not printed He from in an effort to them verbatim. had instructions forms read independent quoted accurately no of whether he CALJIC No. recollection record, however, portions judge of several 14.07. This shows the ad libbed instructions, adding undoubtedly helpful to comments the standard often hand, legal principles in the other jurors understanding the involved. On which, there are as certain given, other standard instructions omitted words (CALJIC 17.30) incorrectly. law and two Nos. 2.50 and which stated the reported weight the We find few decisions on to be accorded evidence of impeach presumptively reporter’s transcript. habit or custom to a correct People rely Grocery Ralphs on in Prescott v. Co. the discussion Cal.App.2d There, Appeal the had P.2d Court of earlier 61]. transcript regards application reporter’s a as remanded an for correction of jury judge a contested instruction with directions for the trial to himself so, copy actually given. judge did certify a true of the instruction The trial present certifying questioned he had no instruction but recollection printed judge he read it written from the form. The trial then was satisfied as given printed was as certified the form instruction the trial court record alone, printed. Appeal the trial On this the Court substituted certificate Thus, reporter’s transcript. judge’s wording certificate for the in the Prescott party applied present There, objecting significantly differs from the case. appellant’s Further, opening as soon brief. no for correction as it received hearsay reporter, only was the court remarks declaration submitted reporter’s attorneys in affidavits to the effect that the notes included contrast, Here, transcript. exact language contained the instructions; she reporter judge during testified she custom- understood arily against checked her the written instructions on occasion recognize placed participants hearing in We the burden on all the remand, imposed pursuant not which is that conducted to our the least of attempting reporter’s hearing judge, on the in to ascertain whether the notes transcript Although and were in error. the conduct had occurred some three appeared years earlier under conditions where there little likelihood of inde- recollection, pendent People and the the state of the record had known of significance by and the with which erroneous instruction was viewed the appeal year request, we for more than a before their belated justice required giving opportunity to believed the interests of them the best, however, upon proper showing. testimony the correct the record At did, err, prose- if judge shows that the trial did not intend to and he the light not in all relevant circum- cutor did detect it. When viewed the stances, reporter’s and this is not substantial evidence that the notes transcript in are error. erroneously as

B. The instruction on embezzlement was stated Eighteen charged through in Five follows: “The defendant is Counts theft, grand in with the of the crime of violation commission Information of the Penal Code. of Section 487 entrusted, fraudulently person property has who

“Every to whom been by purpose guilty is of theft appropriates property such ‍​​​​​​​​​‌​​​‌​‌​​‌‌‌‌‌‌​​​‌​‌​​​‌​‌​​​‌​‌‌‌‌​​‌‍to his own use or embezzlement. reporter’s rehearing did filing decision, theft, grand a of 487 of the Penal Code. of the crime of violation section person steals, personal “Every away property the of another with the who takes and carries deprive permanently property guilty specific is the crime of theft intent to the owner of his larceny.

by place prem- theft, actually property the the need be removed from the or “To constitute kept, by perpetrator. it where it was nor need be retained the ises following prove by larceny, each of the elements “In order to the commission of the theft another, proved: belonging person personal property of value be that a took some must consent; person property, knowledge he had or when the took such without the victim’s that person person specific deprive permanently property; the that the intent to other the period obtaining physical possession property by time away control for such such or carried appearing property. in the text above movement of the cited instructions some [The then followed.] count, you agree unanimously the regard if the defendant committed “With to each that required agree theft, guilty, you you as to find the defendant are not should crime committed, larceny particular or embezzlement. form theft defendant whether any grand by you “Now, as to is a theft and if such consent found consent defense guilty count, to such count. must be found not defendant embezzlement, property “Upon was any a defense indictment for it is sufficient that proffered good faith, though avowedly, appropriated openly even a claim of title under claim such is untenable. Baily capacity you good-faith to make “If had that Dr. had the find defendant a belief made, acquit gift good-faith gift you theft must defendant and a belief that counts.”

361 showing the conversion use, without property his own Daily’s property. The deprive Daily of that specific intent to accompanied an alter- finding mere conversion is jury that erroneously told instruction deprive. specific intent to to the native “ an essential element intent is firmly established It is ‘[fraudulent ” Cal.App.2d (1956)143 (People v. offense of embezzlement.’

of the Scholder Talbot, People (1934) 220 Cal. quoting v. 836, 384], P.2d Supp. 839 [300 133, 139 People (1976) 16 Cal.3d v. Stewart 3, 1057]; P.2d see also 13 [28 requires specific precisely, 117, 1317].) More this Cal.Rptr. 544 P.2d [127 11, Cal.App.2d 17-18 217 Riley (1963) (People v. [31 intent to steal. Scholder, Supp., supra, Cal.App.2d at Cal.Rptr. People v. 404]; 658, Cal.App.2d P.2d 838-839; (1954) 127 People v. pp. Swenson [274 words, 391, p. In Witkin, 364.) other 229]; 1 Cal. Crimes “[t]o § embezzlement, appropriated or converted property must be constitute 1980) (14th Law ed. deprive.” (3 Wharton’s Criminal the intent... Law, 1155, p. 404; 187.) Conse 397, p. (rev.), Criminal 18 Cal.Jur.3d § § embezzlement; rather to establish quently, mere conversion is not sufficient Sears, (Kincaid defraud. v. have with the intent to the conversion must been Cal.Rptr. disap 733, 915], Cal.App.2d (1968) 259 Roebuck & Co. [66 Sons, (1970) 3 3d Jerry Inc. Cal. grounds in v. Witt & proved on Scala other 864].) Cal.Rptr. 475 P.2d 359 [90 instruction, it we must review evaluating impact of an erroneous

In given. (People Wright (1985) v. 39 Cal.3d of all instructions in context Swenson, People supra, 127 Cal.Rptr. 212, 1106]; v. 703 P.2d 589 [217 “ Decause, an element Cal.App.2d 665.) absence of essential ‘[t]he light instruc may supplied by another or cured in instruction be one ” p. quoting supra, (People Wright, v. 39 Cal.3d tions as a whole.’ Cal.Rptr. Cal.App.3d 551, 567-568 People Galloway (1979) However, cured. 914].) error was never they if was confused and People argue jury indication the there is no jury read the written

were, pursuant they were entitled to to section accuracy the explain why lay juror would doubt They instructions. do not simple is embez- plainly conversion which states of the court’s instruction perception the law. of Except not an unreasonable lawyers, this is zlement. the were ever sent to Further, evidence the written instructions there is no jury room. People v. in standard defined applied the harmless error

Even if we here mandates Watson, 818,835-837, error the instructional supra, 46 Cal.2d prop- appropriations were evidence shows all counts reversal of property, which counts on Kronemyer. alleged The stolen erty entrusted to municipal negotiated they based, bonds after consists of through 13 are Baily safekeeping Kronemyer’s possession by for placed in had been operation of law when he was Kronemyer’s trust which came to others appropriation proceeds, if with intent of these appointed The conservator. record, Further, embezzlement, the state of this steal, larceny. is earned, withdrawals, guise attorney fees from in the alleged fraudulent (counts through 18) only can be embezzle- account in trust funds the client ments. Did Taint Instruction Not Embezzlement

The Erroneous Savings (Counts Five Theft of the Accounts Convictions They Through Larcenies; Embezzlements Eight) Wеre Not Because savings accounts were larcenies. proceeds from the six The theft of the possession into came conclusively establishes The record proceeds him to withdraw those powers attorney which enabled plan preconceived to steal those assets. part of a as embezzlement Although identified a material error we have informing jury that embezzle instructions, they accurate and clear are person property initially entrusted to the after has been only occurs ment point was fraudulently appropriates it to his own use. That who thereafter paragraphs of embezzlement in three successive three times stressed Where, here, Baily’s savings accounts never the contents of instructions. possession, only through device of Kronemyer’s but into lawfully came preconceived Kronemyer carried out his intent attorney by which powers of complete larceny instructions on them, concededly accurate and to steal this those accounts. Because applicable to the theft of ones were could not have so, embezzlement instruction otherwise defective jury’s verdicts on those counts. tainted him given to savings was

Kronemyer’s was that each account defense pass- obtain gift. deed of He did not in the first April 1977 and identified hospitalized in June 1977. Baily was until after to these accounts books powers July, Kronemyer him execute had Baily was invalided home When closed these particular July 14 and 15. He attorney accounts on proceeds in the respectively, placing all July accounts on was that he Kronemyer’s justification sole solely his control. under accounts him the given to possession which had been merely taking into monies ample explanation upon based April. jurors rejected this preceeding spurious. gift to find the deed evidence savings account precluded claim the Although Kronemyer’s defense to record by Baily, we have examined the him had been entrusted to assets jurors could from which evidence there is credible whether determine those rather than instructions applied the embezzlement reasonably have and that the there is none are pertaining larceny. We satisfied to he gift, is that Kronemyer’s claim of evidence, having rejected credible possession first came into at or before he all these accounts intended to steal them. attorney which allowed him to close powers perma- perpetrator has the intent to larceny is that the keyA element of Here, Krone- property the time it was taken. deprive victim of nently powers using July 14 and accounts on myer withdrew bank closing of 5th, immediate 14th and 15th. The almost attorney executed documents, Kronemyer’s following of these execution each account accounts, compels the conclusion proceeds in his own placing the sign the Baily invalided time he had the these funds at the intended to steal have Kronemyer earlier could Thus, suggest the facts do documents. likelihood the possession accounts. There is no of these come into lawful instruction, rather than those jurors applied the erroneous embezzlement pertaining larceny. Single Savings Takings Theft a Accounts Constitute

The From Offense Baily’s People Kronemyer formed his intent to “loot” argued Baily’s illness and mental deterioration

estate before June 1977 and that implement preconceived plan to steal finally opportunity to this afforded the proceeds assets, appropriate their savings account cash the bonds Thus, People claimed, and the evidence gut Baily’s and otherwise estate. from establishes, Kronemyer did steal the assets indisputably that if plan accounts, preconceived, continuing pursuant single, a he did so funds was Factually, the total of those unlawfully obtain all those funds. four-day period. single in increments over obtained from a victim period plan completed by transactions over single A criminal a series of complete, separate time, requiring documents each the execution Cal.App.3d (1982) 131 (People but one crime. v. Packard constitutes example, People Bailey (1961) 55 Cal.2d Cal.Rptr. 576].) For 626 [182 may recognized a defendant Cal.Rptr. 39], the court 360 P.2d 514 [11 time, and, receive representation from time to a victim make a fraudulent case, the representation. In such single plan and property pursuant to that grand theft. offense of property but one constitutes accumulation may be upon facts and one However, decided its own each case is to be where single victim separate charging grand theft from counts convicted of distinct, separate where separate but not the offenses are shown to be intention, general pursuant one to one appropriations are committed 364

impulse plan. p. 519; People (1978) (Id. accord v. Sullivan 80 and one Cаl.Rptr. People Cal.App.3d 313].) Similarly, in v. Richardson 19 [145 Cal.App.3d Cal.Rptr. (disapproved on other (1978) 853 83 120] [148 Cal.Rptr. 871, People grounds (1979) in v. 24 Cal.3d 682 Saddler [152 four 130]), 597 all but one of convictions P.2d the court reversed attempted attempted County grand had to defraud the theft where defendant presentation plan involving spurious Angeles through of Los a of four forged a payment. in favor of different ficti- warrants for Each warrant separately through intermedi- payee, tious and was to be submitted different $800,000, Although was in excess of payment. aries each warrant for Appeal only a law Court the facts as matter of there was held showed county. $3.2 single plan to steal sum of more than million from the a total People People’s theory of the case at trial similar to that in v. Richardson, Cal.App.3d They supra, argued Kronemyer formed his 83 853. Baily’s intent to steal the estate before June 1977 illness. assets show, They plan taking all alleged, unlawfully and included the facts savings separated required physically The fact funds accounts assets. these single-plan single-offense four transactions does not avoid the rule discussed Bailey, People v. People supra, (See 514. Howes v. Cal.2d also case, Cal.App.2d 969].) 818-819 P.2d On the facts of this single takings through eight five conviction for the described counts six, We affirm count five and counts seven and warranted. therefore reverse However, designated eight. the total amount stolen from all bank accounts Packard, purposes, (People may applicable. for if be used enhancement supra, Cal.App.3d 627.)

Alleged Sentencing Errors. its

Finally, contends the trial court abused discretion $80,000 prison an sentencing eight imposing him to a years term of impose deny probation 8-year term fine. claims it him an He was error first-time, arranged (and 61-year-old, on a offender who had nonviolent made) alleges the erred in complete has now restitution. He further court episode.20 arising single out criminal punishing perjury for both theft and of a Imposition Sentence Denial Probation proba grant deny wide The trial vested with discretion to court is tion, limitation, except subject statutory where and decision otherwise except upon probation appeal a clear denying will not be disturbed sentencing of the other 20We address contentions because of our resolution do not other issues. arbitrary capricious in or an abused its discretion showing the trial court 141, Cal.Rptr. 208,216 589 (1979) 23 Cal.3d (People v. Bolton [152 manner. Cal.Rptr. 683 (1978) 20 Cal.3d People Warner 396]; v. [143 P.2d Cal.Rptr. 796, 807 (1976) 18 Cal.3d 1237]; Pеoples. Edwards P.2d [135 574 Cal.App.3d Marquez Peoples. 995]; P.2d attempting in placed a defendant is Cal.Rptr. 193].) heavy “A burden (People s. request probation.” denying for discretion in an abuse of show “However, never ascribed to p. 803.) courts have Marquez, supra, at ‘[t]he Discretion is potential without restraint.’ judicial discretion a [Citation.] law, principles of ... sound compatible only with decisions ‘controlled warped by prejudice----’ by sympathy or swayed partiality, not free from Bolton, words, p. 216.) In supra, at other 23 Cal.3d (People s. [Citation.]” capricious, however, arbitrary but is an discretion, neither nor is “[t]his principles, legal to be discretion, by fixed impartial guided and controlled law, in a manner to spirit of the and conformity with the exercised justice.” (People impede the ends of substantial and or defeat subserve not Warner, p. supra, 683.) 20 Cal.3d impris- probation him trial court denied Kronemyer’s allegations the probation him, disregard personal for him of a dislike oned because improper the factors of lack of remorse report, an reliance on officer’s supported by lawyer, this record. as a are not his status report, probation the trial indicating it had read and considered After denying probation adequately its reasons for expressly and articulated court Court, within California Rules with relevant criteria set forth consistent crime are and circumstances of the The court stated: “The nature rule 414.21 The victim was only nature. One need look at the amount. a most serious Court, important And to this extremely vulnerable. most defendant professionalism. The defendant took planned and executed the crime Perhaps these crimes. this Court advantage position of trust to commit of a lawyer, and all of us who sit on the defendant is a extra-sensitive because disgrace only not to himself but to lawyers. brought He has were the bench trust; handling his profession he breached legal because Court, Court, Superior in a estate, trying mislead this but perjured documents. series of did; is, that sorry I for what defendant. feel

“I no remorse find personal guilt. for, he has no sense but he was tried and convicted the documents testimony at or on trial I find either from Not that can says it was in court. He me, just made from the statement presented to need not done out of This was It was criminal. It was indeed. judgment. bad Rules Court. are to California to rules 21A11references was, proceedings, at all relative to these greed. The defendant times

but out of standards, wеalthy man. feels The Court therefore it would all of our probation, proba- travesty grant this defendant for those reasons abe will be denied.” tion aspects on two of the court’s statement of reasons for focuses expressed particularly probation, to wit: he no remorse and the

denying lawyer. context, being him a In each is a situation of comment sensitive probation. is proper denying for Whether defendant remorseful is basis whether to appropriate deciding grant to be considered when an factor Although a need 414(d)(9).)22 rule defendant not confess deny probation. (See (People (1969) 71 of lack remorse v. Coleman Cal.2d the inference of avoid Cal.Rptr. 920, 248]), implication there clear 1159, 459 P.2d is no 1168 [80 upon Rather, fact. it finding its of no remorse court rested the trial predicated upon totality viewing of his of the circumstances appears to be Similarly, Kronemyer’s focusing his criminal conduct. of attorney unavailing. he was an His status court’s consideration the trial consummating crimes attorney key an was the his and is and role as upon legitimately relating to crime which trial court significant factor words, the criminal conduct denying probation. In other here relied relationship attorney Baily, his Kronemyer’s the result abuse (rule 414(c)(2)), taking compounding vulnerability the victim conducting advantage position (rule 414(c)(8)), and himself of his of trust sophistication professionalism (rule demonstrating criminal in a manner 414(c)(7)). accurately probation officer set forth various considerations to

The supporting grant probation, as well as factors denial of support a probation. probation report and recommendation are officer’s sentencing in its only, constituting to the court exercise of advisory aids appropriate disposition, may and thus determining be an discretion Warner, supra, 678, 683; entirety. 20 Cal.3d (People v. rejected their Delson, 56, 63; People supra, Cal.App.3d (1981) v. Server 125 People 161 v. Finally, trial court 721, Cal.Rptr. 206].) need not Cal.App.3d 728 [178 support the rejecting grant factors which would its reasons for articulate 799, Cal.App.3d 144 probation. (Cf. People (1983) v. 813 Salazar [193 123, Cal.App.3d People Thompson (1982) v. 138 127 Cal.Rptr. 1]; [187 Cal.App.3d 371 Cal.Rptr. People (1982) 133 612]; Reid [184 Cal.Rptr. 186].) appreciation a relevant of and attitude towards offenses... 22“Defendant’s [constitutes] (People probation.” determining for v. Delson whether he ... a suitable candidate

fact in [is] Cal.Rptr. Cal.App.3d (1984) 244].) 62 161 [207 Section 654 separately punished аrgument may not be reject Kronemyer’s

We they the same perjury because were incident to for the acts of theft and of objective. criminal prohibits multiple punishment single act or omission

Section provisions” “punishable ways by may be different different CaLRptr. People In v. Beamon 8 Cal.3d Penal Code. “ ‘ Supreme “Section 654 has been 905], P.2d Court held: ordinary applied one ‘act’ in the sense ... but where there was but more than one statute and the also where a course of conduct violated problem comprised which could be was whether it a divisible transaction meaning punished more than one statute within the of section 654.” under (People v. Brown ^[1958] 49 Cal.2d 577, 591 [320 P.2d 5].) [II] Whether a gives rise more than criminal conduct is divisible and therefore course of meaning depends objective one act within the of section 654 on the intent and objective, the actor. If all the offenses were incident to one the defendant of punished may for one of such offenses but not for more than one.’ be (Neal v. State of California ^[1960] 55 Cal.2d 11, 19 [9 Cal.Rptr. 607, 357 839]; added.)” P.2d italics robbery kidnapping purpose

In held a of allowed Beamon the court for punishment only robbery kidnapping, for or for not for both because but i.e., objective, single were committed with a intent and rob. both crimes Neal, attempt kill the arson In an arson allowed convictions for both punishment only and murder but for both were committed with one because significantly, kill. More and Neal the defen- the intent to both Beamon episodes single within dants’ frenetic criminal consisted of a series of events simultaneously. a short time frame. Both crimes were committed Contrast here, span significant where there was a time between the theft transactions itself, transaction, complete perjury and act was and each each criminal depended physical acts. none on the other nor involved the same separated Although temporally is from another or the fact that one crime completed in itself make the the other is commenced does not one is before Cal.App.3d Superior (1974) 43 530 (Burris divisible Court criminal acts Cal.Rptr. 368, Cal.Rptr. People (1969) 1 Cal.3d 376 898]; v. Bauer [82 perjury 637, we are that each 1398]), 37 A.L.R.3d satisfied 461 P.2d we now affirm and the theft count was convicted count of one, Kronemyer independent purpose. In separate criminal count had a and accounting an falsely swearing to the contents of perjury was convicted Baily’s estate was condi upon appointment as conservator of which his obtaining purpose of that swearing directly was for the This false tioned. completed already tangential ability to his to conceal the only It is status. charges, savings As to the theft the same is thefts of the accounts. it relates (count January 2), perjured inventories of December true of other, (count 3) February (count 4). As between each two, misrepresented accountings three in counts and four conservator- estate, accounting Kronemyer’s ship preconservatorship related to while the lawyer handling acting solely he was as his Baily’s financial affairs while committing perjury While the intent accountant. same, wit, conservatorship accounting generally the to conceal each was any inquiry into the where- the true extent and value estate assets, period missing to a different of time and abouts of each related separately required was filed because each was law. charged

The facts here from those in Burris where defendant differ theft, practice grand where the perjury, law and theft the unlawful practice which the a result of unlawful of law in defen- was consummated as There, engaged produced perjured it there dant documents. because steal, objective, practice of law perjury and the and unlawful were but one plan goal. merely steps in the That is not the case preliminary toward here.

Disposition: through through judgment eight reversed as to six and eleven counts eighteen. The is affirmed. judgment otherwise

Wiener, P.J., Acting concurred. well as affir STANIFORTH, judgment I concurin of reversal as J*— specified mance of each of the counts. however, agree, the multichorded

I do not with each of the strands of reasoning support admitting trial erred in the conclusion the court offered to unlawfully appro- uncharged portray evidence of acts which evidence, properly grounded fact, priating Bailey’stax refund checks. Such prepositioned appropriate may instructions be cautionary admissible error, legiti- any retrial of the reversed ‍​​​​​​​​​‌​​​‌​‌​​‌‌‌‌‌‌​​​‌​‌​​​‌​‌​​​‌​‌‌‌‌​​‌‍embezzlement counts. evidence, admitting mates our of trial court error in this found conclusion plus taking in the the issues its court’s failure to conduct minitrial on prior uncharged declaring proffered from acts were jury issue capable such are crimes. On counts errors retrial reversed correction. 13, 1987, respondent’s petition rehearing

A March for a denied Supreme May 1987. petition was denied review the Court Appeal sitting assignment under Chair- *Retired Associate Justice of the Court of person of the Judicial Council. notes reporter acknowledged judge this was The day during jury instructions. speaking style. report easiest to because of voice, unique with its wide fluctuation judge’s gravelly, deep and The trial Further, prosecutor stated duly rapid speech were noted. in tone as the court proposed written instructions customarily followed the interrupt or correct court. did not reading them and on this occasion the words articulated prosecutor present recollection of Although had no indicated the court, correct the court the fact he did not by the he believed testimony significance of this correctly. The have been read instruction must he had never corrected prosecutor’s admission that by is diminished an jury trials and felony during more than 70 during instruction judge spanning 20-year career. jury trials number of misdemeanor unknown some printed instructions judge deviated from Further, this the record shows prejudicially to Krone- erroneously stating times, rules at least twice special Moreover, instruction 17.30.) a written myer. (CALJIC Nos. 2.50 People, objection from the warning brought no concededly altered without Here, prosecutor’s only by jury retired to deliberate. after being testimony object about his failure to when CALJIC No. 14.07 was read incorrect, reporter’s transcript or the is not substantial evidence the court substantially read that instruction This “evidence” must be written. weighed against objection significant instruc- fact he made no to other in this tional errors case. testimony judge it was his habit to read the trial

Notes

notes speech impair ability her judge’s pattern was where or voice such as stated; no doubt accurately exactly what was and she had as to understand Moreover, reporting during judge the trial judge this trial. the accurate of this No. affirmatively gave he is satisfied he CALJIC 14.07 here does not state fact, parties stating to the verbatim. In when asked whether recalled I hearing before “whether approximately conference two weeks say he up day, He had that I know.” stated it was correct screwed don’t something I read “exactly if he as that or no recollection read the instruction else.” 1983) (9th Cir. reasoning in United States Marshall We believe transcript appeal applicable. There, reporter’s on contained F.2d which, reported, prejudicially erroneous. jury accurately if instruction brief, appellant’s opening judgе trial made and Immediately receiving transcript flatly reporter’s was incorrect and he stating filed a certificate correctly. significant court found it given had the instruction The circuit reporter her tran- no statement from the effect the record contained say scription inaccurate, judge did not her notes erroneous or that the Moreover, jurors reflected. the court stressed it is what the what her notes after judge say, judge not what the believed he said understood the instruction, containing that is reviewing the written form the intended Marshall, p. important. (United supra, 1196.)18 States v. 488 F.2d Here, experienced reporter judge an court seated closer to the trial than words, accurately judge’s any juror, responsibility whose was to record is not shown to have erred.

the notes submitted on showed its evidence 18After transcript originally was in error. the filed a correct instruction and contain embezzlement, following prove by the the crime of theft “In order to proved: That a relation of trust and confidence existed elements must be pursuant relationship, persons persons; of those two such one between third, was accepted property person; him other there entrusted to fraudulently property deprive person converted the specific intent to or purpose. or to his own use money property defendant and you “If find that or was entrusted him, fraudulently appropriated by it is immaterial whether thereafter directly property was defendant owner money or entrusted to the such acting person the owner.”19 by a third actually states the intent element embezzlement CALJIC No. 14.07 deprive person specific That intent to the other follows: “3. person fraudulently appropriated it to his own property, or converted “third, purpose.” that: there use or this with the court’s statement Contrast prop- specific deprive person fraudulently or converted the intent to jury it purpose.” The instruction told the erty to his own use or defective intentionally Rronemyer if he converted could convict of embezzlement pertinent context, following jury given: each of crimes instructions were “In 19Within information, grand theft, charged namely perjury there must exist the counts of the perpetrator operation specific joint of act or conduct and a certain intent the mind of specific exists, the relates is committed. unless intent crime to it such charged. specific required is “The intent included the definition of the crimes charged through with the commission “The counts 5 18 of information defendant

Case Details

Case Name: People v. Kronemyer

Court Name: California Court of Appeal

Date Published: Feb 11, 1987

Citation: 234 Cal. Rptr. 442

Docket Number: D000062

Court Abbreviation: Cal. Ct. App.