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Name: People v. Acosta
Case #: G049326
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/12/2014

Penal Code section 502.5, which criminalizes removal of improvements from a mortgaged property, is constitutional. Defendants’ refinanced home went into foreclosure. The trust deed listed fixtures as part of the security collateral. Before they moved out, the defendants, who were licensed real estate agents, seriously damaged the property and removed a number of fixtures, causing the lender to suffer substantial losses. A jury convicted the defendants of removing improvements/fixtures from their foreclosed home (Pen. Code, § 502.5) and found true an allegation that the taking exceeded $65,000 (§ 12022.6, subd. (a)). On appeal they claimed the statute is unconstitutionally vague and other errors. Held: Affirmed with modification. Section 502.5 prohibits a borrower from intentionally harming a lender by removing or disposing of certain expressly enumerated items “or other part of the freehold that is attached or affixed to such premises as an improvement thereon.” This terminology, including “affixed” and “part of the freehold” is not vague and what is prohibited by the statute can be understood by the average person.

The court’s definition of “fixture” was proper. Defendants challenged the court’s definition of “fixture,” which was derived from Civil Code section 660, because it did not require the trier of fact to consider the objective manifestations of the intent of the party making the annexation to the residence. There was no error. Section 660 provides, in pertinent part, that a thing is deemed affixed to land (and is thus a fixture) when it is “permanently resting upon [land] as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts or screws.” The statute incorporates permanence as the objective manifestation of the annexing party’s intent. This comports with the requirement of section 502.5 that the defendants disposed of property which was attached/affixed to the residence as an improvement, as additions to property lacking permanence normally will not affect value or desirability.

A great taking enhancement does not require that a defendant personally take or damage property. Monique Acosta claimed the great taking enhancement (Pen. Code, § 12022.6, subd. (a)) applies only when a defendant personally takes property exceeding $65,000. She claimed the modified CALCRIM No. 3220 instruction given, which applied the enhancement to a defendant who either personally removed or permitted another to unlawfully remove property, was erroneous. There was no error. Although the commentary to CALCRIM No. 3220 criticize this court’s decision in People v. Fulton (1984) 155 Cal.App.3d 91 (which allowed vicarious liability), the failure to apply vicarious liability to the great taking enhancement would lead to absurd results. This could result in a less culpable defendant receiving more severe punishment when the mastermind of the offense did not actually take the property, or no enhancement being found where the proof was insufficient to show which defendant took the property. The holding in People v. Walker (1976) 18 Cal.3d 232, that an enhancement does not provide for vicarious liability unless expressly stated in the statute, is limited to cases involving deadly weapons or infliction of great bodily injury.

Probation supervision costs should not be made a term of probation. The reasonable costs of probation are collateral and an order for payment may not be a term of probation. Probation terms modified to provide a separate order for payment.