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Name: People v. Kaufman
Case #: D070902
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/16/2017

Evidence supported conviction for theft by larceny where defendant took proceeds from promissory note by trespass, with intent to steal, and carried away funds. Kaufman sold an office building to Reinicke, taking back a promissory note secured by a second trust deed. Kaufman then sold the promissory note to Emmet without telling Reinicke, although Kaufman told Reinicke to send the note payments to Emmet. Several years later Kaufman offered to discount the note if Reinicke would pay off the balance owed, which he did. For a while, Kaufman sent payments on the note to Emmet, then stopped. He was charged with and convicted of grand theft (Pen. Code, § 487, subd. (a)). Kaufman appealed, arguing the evidence was insufficient to prove grand theft by larceny, and the jury was not instructed on embezzlement from Emmet. Held: Affirmed. Theft by larceny is committed by a person who takes possession of and carries away the personal property of another by means of trespass with the intent to steal. Kaufman took Reinicke’s final payment on the note, which is property. His taking was trespassory because Reinicke did not tell Kaufman to deliver the money to Emmet, because he believed that Kaufman still owned the note. Emmet never consented to Kaufman taking possession of Reinicke’s final payment and Kaufman’s wrongful interception of the final payment effected a constructive delivery of the payment to Emmet. Emmet had a right to payments under the note, so the final payment was not in Kaufman’s lawful possession when he stole it. Further, Kaufman satisfied the asportation element by taking the money from Reinicke and keeping it. His efforts to conceal from Emmet the sale of the note to Reinicke and his renegotiation of the note to obtain the balance owed reflected that he intended to permanently deprive Emmet of possession of the money.

The trial court did not err by failing to instruct the jury on theft by false pretenses. Kaufman argued that the trial court erred by not instructing on theft by false pretenses and embezzlement from Emmet. However, the record reflects the defense objected to instruction on theft by false pretenses. Although the invited error doctrine generally does not apply to the court’s sua sponte instructional duties, in this case there was insufficient evidence to support such a duty as to a theory of theft by false pretenses as to Reinicke, because the charge was theft as to Emmet. There was no error.

The trial court did not err in failing to instruct the jury that victims’s alleged extortion of defendant was a defense to grand theft. Kaufman submitted a proposed jury instruction to the effect that Emmet’s alleged threats to go to police to compel defendant’s payment of the debt is a defense to theft. The trial court rejected the instruction. Alleged extortion by the victim is not an implied affirmative defense to grand theft committed by the defendant. Nor would Emmet’s alleged threats negate any element of larceny, or excuse or justify conduct which would otherwise lead to criminal responsibility.

The trial court’s granting of informal probation converted the offense to a misdemeanor by operation of law. Though Kaufman was convicted of grand theft, the jury did not state in its verdict whether the offense was a felony or a misdemeanor. At sentencing the trial court said the offense remained a felony, but agreed to place Kaufman on summary probation for three years. On appeal, the prosecution argued the sentence was unauthorized because a conviction for a felony offense precluded the granting of summary probation. A grant of informal or summary probation is a “conditional sentence” (Pen. Code, § 1203). Conditional sentences are authorized only in misdemeanor cases. Thus, the trial court was not authorized to grant informal probation in a felony grand theft case. However, the conviction offense is a wobbler and a felony automatically converts to a misdemeanor when the court imposes a punishment other that imprisonment under section 1170, subdivision (h). (Pen. Code, § 17, subd. (b)(1).) The trial court’s statement to the effect the offense remained a felony did not change what was otherwise an automatic conversion to a misdemeanor because the court did not retain jurisdiction for later felony sentencing.

The full opinion is available on the court’s website here: