There was sufficient corroboration of accomplice testimony to support a grand theft conviction. Appellant, an employee at Sierra at Tahoe ski resort, was convicted of grand theft based on faking an accident in order to collect damages and to obtain medical treatment for a preexisting knee injury. At trial, two of his accomplices testified about the scheme and were given use immunity for their testimony. Appellant argued his conviction for grand theft had to be reversed because there was no corroborating evidence to back up the testimony of his accomplices. The court rejected the argument. A third party, who was not an accomplice, testified about overhearing a conversation in which the individuals first discussed the proposed scheme, and in that conversation appellant suggested he should be the one to take the fall into a hole covered with snow at the ski resort because he had a prior knee injury.
For purposes of a section 12022.6 enhancement, the calculation of the value of property involved the felony is not limited to what the defendant received, but rather encompasses what the victim lost. Appellant argued there was insufficient evidence to sustain an enhancement for a loss to the victim of over $65,000. He noted the medical services he received did not reach this threshold, and argued legal fees incurred by the ski resort should not be included in the calculation because he did not "receive" or "obtain" the legal services paid by the company to resolve an insurance issue. The court rejected the claim. The statute provides for additional punishment when the defendant "takes, damages, or destroys any property in the commission … of a felony." The inclusion of the words "damage" and "destroy" evinces a clear intent that the emphasis is on what the victim lost, not what the defendant gained. This would include the legal fees expended by the victim.
In a case involving theft by false pretenses, a grand theft instruction will not suffice. Appellant argued the jury was not properly instructed on the law pertaining to the offense because the court gave a general grand theft instruction (CALCRIM No. 1800) and not specific instruction on theft by false pretenses, which was the offense shown by the evidence. Respondent countered that the prosecution’s theory at trial was theft by embezzlement. The court found theft by embezzlement was not the offense committed since there was no evidence appellant was in a position of trust and that the company gave him access to property he appropriated for himself. The evidence showed appellant induced the ski resort to give him benefits in reliance of appellant’s claim that he injured himself on the property. This is theft by false pretenses and an instruction on that offense was required. To convict a defendant of theft by false pretenses, it must prove that (1) the defendant made a false pretense or representation to the property owner; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. Moreover, the false pretense must be corroborated. The instructional error cannot be deemed a technical, harmless one because the jury was never asked to decide beyond a reasonable doubt whether there was a representation made by appellant on which the ski resort relied, or the necessary corroboration. The conviction and the attached enhancement were reversed. For purposes of retrial, the court noted there was also instructional error with regard to the section 12022.6 (excessive loss) enhancement. CALCRIM No. 3220, which is specific to this enhancement, should be given.
The legal fees incurred by the employer were properly included in the restitution order. The trial court ordered $40,000 in legal fees to be paid back as part of victim restitution. The employer said it incurred these fees to determine appellant’s legal employment status at the time of the incident (whether to treat it as a worker’s comp. claim or general liability), and to defend a civil case filed against it by appellant. Appellant claimed legal fees on the insurance coverage issue were unnecessary because the total medical expenses paid out were less than the deductible under either policy. The appellate court upheld the order. First, it is not clear from the record that the legal fees claimed were incurred to resolve the legal issue. Also, when it incurred the fees, the employer did not know how much would need to be paid out since appellant made a claim in excess of $400,000. "It was defendant’s criminal conduct that put in motion a series of events that ended up costing [the ski resort] a significant amount of money, including legal fees, to determine how defendant’s medical expenses would be paid." The order was not an abuse of discretion.