IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE A125301

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1 Filed 12/23/10 P. v. Tupper CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. LEAH TUPPER, Defendant and Appellant. A (Mendocino County Super. Ct. No. SCTMCRCR ) Defendant Leah Tupper appeals from a conviction for embezzlement and burglary. A jury found that defendant, the bookkeeper for a preschool, failed to deposit into the school s bank account numerous cash payments received for children s tuition and converted the payments to her own use. She challenges her conviction on various grounds, none of which has merit, but we conclude that minor corrections must be made with respect to the terms of her probation. BACKGROUND Defendant was charged by first amended information with one count of grand theft by embezzlement (Pen. Code, 1 503) and one count of second degree burglary ( 459, 460). There was evidence at trial of the following facts. Nancy Pollard was the director of Little Lambs Preschool in Fort Bragg from Pollard testified that defendant was the bookkeeper at Little Lambs from 2003 through mid-november In that role, she was required to deposit and enter into 1 All statutory references are to the Penal Code unless otherwise noted. 1

2 the computer tuition payments and to generate monthly statements for the parents. Tuition payments were to be deposited into the school checking account. When a parent gave a payment to a staff member, the money was to be recorded on an intake sheet along with the child s name, the date of receipt, whether the payment was by cash or check, the check number or the receipt number if the payment was made in cash, and the initials of the person making the payment. The money along with a copy of the receipt was placed in a zippered pouch kept in a locked cupboard. Pollard and defendant were the two people who most often received cash payments. Pollard and defendant were the only two people with access to the locked cupboard while defendant worked there, and so far as Pollard was aware the cupboard was not broken into during that period. Defendant was also responsible for preparing a breakdown sheet that reflected payments made on behalf of each child, itemizing whether the payment was for materials, tuition, or late fees. Defendant prepared a handwritten deposit slip itemizing cash and checks being deposited. Normally defendant placed the cash and checks in her purse and told Pollard that she was going to make a deposit. Defendant left her position with Little Lambs on November 15, 2005, for health reasons. Pollard did not suspect any wrongdoing at that time. After defendant left, Pollard conducted an audit that revealed missing funds. The audit revealed several occasions on which no cash deposit had been made, although a parent, Tom Humecky, had receipts for payments on some dates on which there were no deposits. Pollard identified 68 cash payments that had not been deposited, totaling $12, All of the deposit slips for deposits that were made on dates of those payments but did not include missing payments were in defendant s handwriting. The breakdown sheets that should have reflected the missing deposits were also in defendant s handwriting. In February 2006, Pollard met with defendant; Daniel Fowler, the pastor of the church that ran the preschool; and Deborah McCullough, the new bookkeeper. Fowler asked defendant about an $800 cash payment from Humecky that had not been deposited. 2

3 Defendant told Fowler she thought it was strange that the money had not been deposited and added, I didn t steal the money. Humecky testified that his son had attended Little Lambs Preschool since March He paid his son s tuition in cash to whichever staff member was on duty at the time. He remembered making payments to Pollard, McCullough, and defendant. When he paid, he was given a receipt signed by the staff member who took the payment. He recalled making an $800 payment to defendant and receiving a receipt from her. A copy of the receipt was admitted in evidence. Humecky identified 12 cash payments he made in He received a monthly statement from Little Lambs for payments he had made. Sergeant Charles Gilchrist of the Fort Bragg Police Department testified that he interviewed defendant in August Defendant denied taking any money from the preschool. Carol Steele testified that she had 30 years of experience in the banking industry and that she had special experience reviewing bank statements to determine the amount of deposits. Steele was also an elder of the church that operates the preschool and was asked by Pollard to audit the Little Lambs bank statements and other documents. Steele reviewed the parents ledgers for payments that were recorded as cash, the intake sheets, and the bank statements for the preschool checking account to see if cash was listed on the deposit slips. For her final audit, Steele said, I started with the amounts that I had listed on the original one... and I did a paper trail. I started from those figures and those dates, went back to the parents ledgers, confirmed the dates and the amounts, and then I went to the checking account deposit slips for that day and the next day, and then I went to the savings account deposit tickets to look to see if the cash deposits were there. Steele performed this review for September 2003 through November She determined that a little over $12,000 should have been deposited that was not. In defense, four members of defendant s community testified to her reputation for truth and honesty. A jury found defendant guilty of both grand theft by embezzlement and burglary. The court placed her on probation for five years, conditioned on, among other things, 3

4 serving 120 days in jail and seeking and obtaining meaningful employment. Among various fees and penalties defendant was ordered to pay was an $87 fine purportedly pursuant to section DISCUSSION Unanimity instruction Defendant argues that because multiple instances of criminal conduct were alleged and argued, the trial court should have instructed the jury that it was required to agree on the specific instances in order to find her guilty of embezzlement or burglary. The purpose behind a unanimity instruction is that: when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No or or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. (People v. Winkle (1988) 206 Cal.App.3d 822, 826.) However, [a] unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct. [Citation.]... The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. (People v. Thompson (1995) 36 Cal.App.4th 843, 851.) Defendant relies on People v. Ferguson (1982) 129 Cal.App.3d 1014 to argue that a unanimity instruction was required. In that case, the defendant was charged with one count of check fraud for passing 35 checks with insufficient funds. Appellant opened a checking account at [a] Wells Fargo Bank with a deposit of over $300. One week later, appellant closed the account claiming he had lost his checkbook. Using the balance of the closed account and an additional $200, appellant opened another account at the same bank. This account was closed less than a month later. [ ] Appellant wrote about 35 checks on the two accounts; the checks were written over a 2-month period and involved more than 20 payees. These checks were never paid because the accounts had been 4

5 closed or had insufficient funds. Most of the checks bore a notation of promissory note or not for deposit ; this notation was often written illegibly in small letters over the account number on the check. (Id. at pp ) In rejecting the argument that the crime fell within the continuous course of conduct exception, the court noted, The acts here involved different victims, at separate times and were only connected by the fact that they were committed by the same individual utilizing a single modus operandi. (Id. at p ) The Attorney General relies on People v. Daniel (1983) 145 Cal.App.3d 168 in support of the application here of the continuing course of conduct exception. In Daniel the defendant was charged in one count with grand theft from a single victim in excess of $25,000. The evidence was that he took smaller amounts from this victim on numerous occasions by various means. The appellate court rejected the contention that a unanimity instruction was required as to that count, reasoning that the charges against the defendant alleged that [he] engaged in a continuous course of conduct of theft from a single victim over a period of five months with a single fraudulent intent or objective. Both the prosecuting and defense attorneys and the judge conducted the case according to this theory during the entire course of this protracted trial. None of the individual acts of taking by appellant was established to be in excess of $25,000. The jury must have concluded, therefore, that the appellant did indeed engage in a continuous course of conduct with a single fraudulent intent and that he obtained property in excess of $25,000. (Id. at p. 175.) 2 In People v. Thompson, supra, 36 Cal.App.4th 843, the defendant was charged with diversion of construction funds. The court distinguished Daniel because, although the charging document alleged a continuing course of conduct and theft of funds in 2 The court held that a unanimity instruction was required as to another count in which the defendant was charged and convicted with theft of more than $25,000 from two different victims where theft from either of the victims could have supported the conviction and the jury might not have been unanimous in determining which act constituted the offense. 5

6 excess of $1,000, the prosecutor distinguished between the various methods defendant allegedly used to divert money: overbilling and applying the excess to other accounts; accepting money and not purchasing the dumbwaiter; and taking money for personal use. Each of these methods involved amounts over $1,000, so the jurors need not have found a continuous course of conduct to convict defendant. The defendant offered different defenses as to each possibility. In holding that a unanimity instruction was required, the court stated, Some jurors could have believed defendant wrongfully misdirected funds to pay other accounts with suppliers, others could have believed he misused the money for the dumbwaiter, and others could have believed he wrongfully took money for himself. Absent a unanimity instruction, the jurors could have unanimously convicted defendant of diversion without agreeing on what he did. (36 Cal.App.4th at p. 852.) The information in this case alleged that defendant committed grand theft by embezzlement between September 1, 2003, and November 30, 2005, by stealing property worth more than $400. The prosecutor argued that defendant yielded to temptation on September 16, 2003, and that on 68 occasions she took the money over that 26-month period of time. The defense was that other people had access to the cash tuition payments and therefore that the prosecution had not met its burden of proving that it was she who stole the money. Defense counsel argued to the jury that the prosecutor had taken 10 instances out of what are supposedly 60-something instances and we re saying there s a pattern here among these few and we re not going to look at these other ones. Although several of the individual instances of theft amounted to more than $400, the embezzlement and burglary charges were treated as a continuing course of conduct by the prosecution and the defense. There was a single victim. 3 The prosecutor argued that there was a pattern as to when the cash was taken and relied on several instances to prove 3 Relying on People v. Ferguson, supra, 129 Cal.App.3d 1014, defendant argues that each parent was a separate victim so that the continuing course of conduct exception does not apply. In Ferguson the defendant wrote bad checks to a number of different individuals, each of whom was a victim of his offenses. Here, defendant stole from a single victim, the preschool; the parents who made the tuition payments were not the victims of the theft. 6

7 that defendant had taken all the money that Pollard and Steele testified was missing. Defendant offered a uniform defense to all of the alleged thefts: that others had access to the money. Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. (People v. Thompson, supra, 36 Cal.App.4th at p. 853.) In this case, the prosecution asserted and the evidence showed a single continuing course of conduct, which the jury could either believe or disbelieve. There was no basis on which different jurors might have found that defendant committed different thefts and thus no need for a unanimity instruction. Even if such an instruction should have been given, there is little likelihood that the jury would have reached a different result if it had received a unanimity instruction. The court did not err in failing to give a unanimity instruction, and any conceivable error was harmless. Evidence of burglary Defendant argues that her conviction for burglary must be reversed because there was insufficient evidence that she had the intent to steal when she entered the preschool on days that (accepting the jury s verdict on the embezzlement count) she misappropriated tuition payments. Indeed, she argues, there is no evidence that [defendant] even knew when the parents would make their payments, such that it could be inferred that because she knew in advance that a parent would... make a payment, she must have intended on that day to misappropriate a payment that came into her hands. When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence that is, evidence that is reasonable, 7

8 credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] [I]t is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] In a case, such as the present one, based upon circumstantial evidence, we must decide whether the circumstances reasonably justify the findings of the trier of fact, but our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. ( People v. Lewis (2009) 46 Cal.4th 1255, , fn. omitted.) Every person who enters any house... or other building... with intent to commit grand or petit larceny or any felony is guilty of burglary. ( 459.) A necessary element to this crime is that the intent to commit the theft or felony must exist at the time of entry. [Citation.] However, in reviewing the sufficiency of evidence to support a burglary finding, the requisite intent is rarely demonstrated by direct proof, and as a result, may be inferred from facts and circumstances. [Citation.] As a result, evidence such as theft of property from a dwelling may create a reasonable inference that there was intent to commit theft at the time of entry. (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.) The fact that defendant embezzled is sufficient evidence that she intended to do so before entering the preschool. (See, e.g., In re Matthew A. (2008) 165 Cal.App.4th 537, 541 [ The[] thefts create a reasonable inference that appellant entered [the] apartment with the intent to steal ]; People v. Manson (1976) 61 Cal.App.3d 102, 208 [ The fact that [defendant] did take the money is a reasonable and logical basis from which the jury could properly infer that he intended to do so prior to entering the residence. ].) That defendant may not have known when parents would make their payments does not mean that when she entered the premises every day she did not intend to misappropriate payments that were made that day. Because the embezzlement occurred so many times 8

9 over such a lengthy period of time the jury reasonably could have inferred that she went to the preschool with the intention to take a cash payment if a parent gave her one that day. If one enters a building intending to steal an object and leaves without committing the theft, either because the object was not there or for any other reason, the crime of burglary has nonetheless been committed. (2 Witkin & Epstein, Cal. Criminal Law, Crimes Against Property (3d ed. 2000) 127, p. 159, citing, inter alia, People v. Shaber (1867) 32 Cal.36, 38 [ the crime would be complete even though it should turn out that, contrary to the calculations of the burglar, the building was empty ].) Moreover, temporal proximity between the entry and the target crime is not essential; if defendant entered the school premises to facilitate the misappropriation of funds either on that day or some future day when payments should be made, the intent was sufficient to support the crime of burglary. (People v. Griffin (2001) 90 Cal.App.4th 741, , citing People v. Kwok (1998) 63 Cal.App.4th 1236, ) Statute of Limitations Defendant argues that she cannot be prosecuted for criminal behavior committed prior to September 20, 2004, because the prosecution of such acts is barred by the statute of limitations. Defendant mistakenly argues that the three year limitation period of section 801 applies. That section provides, Except as provided in Sections 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense. However, section states that Notwithstanding Section 801 or any other provision of law, prosecution for any offense described in subdivision (c) of Section 803 shall be commenced within four years after discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later. Subdivision (c) of section 803 in turn provides a fouryear limitation period for crimes having as a material element fraud or breach of fiduciary duty.... (People v. Guevara (2004) 121 Cal.App.4th 17, 24.) The first crime that the statute specifies as coming within this definition is Grand theft of any type.... 9

10 ( 803, subd. (c)(1).) Grand theft by means of embezzlement, with which defendant was charged, is such a crime and therefore the four-year limitation period of section applies. The prosecution commenced on September 21, 2007, the date that the information was originally filed. ( 804.) The information alleged that defendant committed embezzlement and burglary from September 1, 2003, through November 30, Pollard testified that she did not suspect any wrongdoing when defendant resigned her position as bookkeeper on November 15, 2005, and that McCullough, the new bookkeeper, noticed discrepancies that led Pollard and McCullough to meet with defendant in February 2006 to ask about missing funds. Therefore, defendant s embezzlement was discovered at the earliest some time after November 15, 2005, and prosecution permissibly commenced within four years of discovery. It may be that the four year statute does not apply to the burglary charge, but even under the three-year statute the prosecution was timely because there is substantial evidence that defendant s conduct continued well beyond September 21, Probation condition One of the conditions of defendant s probation is that she seek and maintain meaningful employment.... Defendant objects that the term meaningful is unconstitutionally vague and argues that the term lawful should be used instead. The Attorney General counters that in the context of defendant s convictions for embezzlement and burglary and the court order that she pay restitution, it is obvious that the court s order that [defendant] maintain meaningful employment means she must earn the money to pay these amounts. The Attorney General also argues that inserting the word legal is redundant because another condition requires that defendant obey all laws. Trial courts have broad discretion to set conditions of probation in order to foster rehabilitation and to protect public safety pursuant to Penal Code section (People v. Lopez (1998) 66 Cal.App.4th 615, 624.) No one may be required at peril of 10

11 life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. [Citations.] The operative corollary is that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. [Citation.] [ ]... Thus, a law that is void for vagueness not only fails to provide adequate notice to those who must observe its strictures, but also impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, ) A probation condition is subject to the void for vagueness doctrine, and thus must be sufficiently precise for the probationer to know what is required of him.... (People v. Lopez, supra, 66 Cal.App.4th at p. 630.) Even in context, we believe that meaningful employment is too vague a condition of probation. Meaningful may mean having a meaning or purpose, or significant (Merriam-Webster s 11th Collegiate Dict. (2007) p. 768), either of which may be interpreted in multiple ways when applied to employment. Work may be meaningful, or not, on a number of levels that are not properly the concern of a probation condition such as whether it provides personal satisfaction or social benefit. The court may, however, order defendant to seek paid employment. The proper purpose of the condition is to require defendant to take steps to enable her to pay restitution to the preschool. Requiring her to obtain paid employment will satisfy that objective. [A] condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486.) Since defendant s crimes involved theft and her sentence includes restitution, a requirement of paid employment is reasonably related and will give her adequate notice of what is required. 11

12 Fines The trial court imposed several fines and penalties, 4 including a fine of $87 pursuant to section That section provides that for enumerated offenses, including burglary, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed. Defendant argues that the trial court was required to set forth the statutory basis for the fine, which it failed to do. The Attorney General responds that defendant waived the argument because she did not object to the imposition of the fine below. Defendant s failure to object below did not waive the issue on appeal. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) The trial court derived the $87 amount from the probation report but neither the probation report nor the trial court explicate the manner in which this amount was derived. The only statutory basis for the fine cited in the probation report or the court s order is section , which authorizes a fine of only $10 in addition to any other penalty or fine imposed. Therefore, this fine should be reduced to $10. 4 Defendant was ordered to pay restitution of $12, plus a 10 percent administrative fee of $1, ( ), a restitution fine of $ ( ), a stayed restitution fine of $ ( ), a courthouse security fee of $20 ( ), a collection fee of $35.00 for each separate fine and penalty assessment paid in installments ( 1205), a pre-sentence investigation report fee of $615.00, a supervision fee of $50.00 per month for 60 months, or $1,800.00, in addition to a fine in the amount of $87.00 (including penalty assessments), pursuant to a Penal Code Section

13 DISPOSITION The judgment is affirmed and the matter is remanded for correction of the conditions of probation and the abstract of judgment in conformity with this opinion. Pollak, J. We concur: McGuiness, P. J. Jenkins, J. 13