P. v. Dabanian

Filed 11/21/08 P. v. Dabanian CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Defendant Marietta Dabanian was found guilty of three counts of theft and one count of attempted theft in connection with the taking of more than $100,000 from an elderly woman. On appeal, defendant claims numerous errors. As we will explain, we agree with only one of her assertions -- that there was insufficient evidence to convict her of theft relating to an annuity she purchased for the victim under a power of attorney (the Employees Life annuity). Accordingly, we will reverse the judgment as to that conviction only, affirm the judgment as to the remaining convictions, and remand the case for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Born in 1914, Jean Ralston was a retired school principal who lived by herself in an apartment in Stockton. Defendant apparently got to know her sometime in the late 1990s when Ralston hired defendant to help her with her cleaning. (Defendant had a cleaning business at the time.) By the end of 2003, defendant was also providing care for Ralston. (Defendant operated a care-giving business called Caring in a Time of Need.)

Beginning in the summer of 2003, various people noticed that Ralstons mental acuity was declining. In January 2004, defendant made an appointment to bring Ralston to a meeting with George Manassero, the attorney who had prepared Ralstons will and living trust in 2000. At the meeting, defendant discussed creating a power of attorney for Ralston, so that she could be in charge of Ralstons finances. When Manassero met with Ralston outside of defendants presence, he felt that Ralston just could not articulate or focus on what she really wanted to do. Accordingly, he did not prepare a power of attorney for her.

A week after meeting with Manassero, defendant took Ralston to meet with a certified estate planner, Stephen Walker. Walkers understanding was that Ralston wanted to make some changes to her living trust. Walker referred her to Harold Duncan, an attorney with whom Walker had a fee-splitting arrangement. Duncan prepared a new living trust and a new will for Ralston. Under those documents, defendant was to inherit all of Ralstons property. Duncan also prepared a power of attorney that made defendant her attorney-in-fact and immediately gave defendant control over Ralstons finances. This document took effect on February 6, 2004.

Later that month, Walker sold Ralston an annuity with Employees Life for an initial premium of $141,106.16. Defendant signed the annuity application pursuant to the power of attorney. Defendant was the primary beneficiary of the annuity. Approximately five days after the purchase of the annuity, another premium payment was made bringing the total premium to $250,000. At the time, Jean Ralston already had an annuity with New York Life that she had purchased a year earlier for a premium of $100,008.44.

In April 2004, Ralstons credit card was used to purchase plane tickets for defendant and another person to fly round-trip between Sacramento and Los Angeles.

In June 2004, Ralston spent five days in the hospital after she was found to be suffering from congestive heart failure due to coronary artery disease. In July 2004, she was moved to Bayside Landing, an assisted living facility for seniors. The same month, defendant used $3,800 of Ralstons money to pay for the installation of a flagstone walkway in her backyard, as well as some drainage work in the front of her house. She also used $2,527.50 of Ralstons money to pay for the refinishing of the hardwood floors in her house.

Sometime in August 2004, defendant met with James Rohleder, the owner of a construction company that specializes in remodels and additions, about remodeling her garage into an office storage area. About halfway through the project, which started November 10 and ended around December 23, 2004, defendant told him that her grandmother was in a care home in Greece and the project needed to get done as soon as possible because she was having problems with her grandmother. This was the first time Rohleder learned the converted garage was not going to be used as an office. Defendant asked him to install a kitchenette (a small bathroom was already part of the plan), but he told her he could not because the permit would not allow it. Defendant ultimately paid Rohleder $42,175 from Ralstons bank accounts for the remodeling project.

In December 2004, Ralston was staying in a rehabilitation center known as Meadowwood. At that time, Anthony Monaco, Sr., met Ralston and defendant because Ralston shared a room with Monacos mother. Defendant told Monaco that Ralston was her mother and said that she was building a house in the back or alongside of the house for [Ralston] where [defendant] would take her in and take care of her. Defendant also told Monaco that Ralston was going to be paying her rent, which struck him as odd.

Ralston left Meadowwood just before Christmas 2004. At that time, defendant moved her into defendants converted garage.

On January 31, 2005, Employees Life received a request to withdraw 10 percent of the Employees Life annuity plus accumulated interest, which amounted to $35,427.40 in total. A check for that amount made out to Ralston was later deposited into Ralstons savings account.

After defendant moved Ralston onto her property, she spent additional sums of Ralstons money on improvements to her home. In February 2005, she paid $6,385 for a water feature for her yard, which consisted of a [f]ive by seven pond with three feet of stream, two waterfalls and plants. In March 2005, she spent $1,942.73 on a patio table and four chairs. Around that same time, she paid a landscaping company $3,777.40 to help design a backyard, pour some concrete, and do some demolition. (The entire job was never completed.) She also paid $6,428 toward the purchase and installation of some custom gates. In April 2005, defendant paid $4,000 for the construction of masonry block walls on her property.

In addition to the foregoing expenditures, between December 2004 and April 2005 $4,604.50 in ATM cash withdrawals were taken from Ralstons checking account and $9,500 in ATM cash withdrawals were taken from her savings account. It did not appear that Ralston had ever taken ATM cash withdrawals from her accounts before. During this same time period, a check card on Ralstons account was used for $6,556.42 in various transactions, including the purchase of an airline ticket for the man who became defendants husband to travel from North Carolina to California and back.^[1] Before December 6, 2004, there had been no use of Ralstons check card.

Between December 2004 and February 2005, defendant wrote checks to herself from Ralstons account in the sum of $4,800. Between June 2004 and March 2005, she wrote checks to Cash in the sum of $5,900, and in June 2004 she withdrew $8,500 in cash from Ralstons savings account.

Between December 2004 and April 2005, defendant wrote checks from Ralstons account to Financial Center Credit Union in the total sum of $3,000, which apparently were payments on a Visa card that belonged to defendant. Between October 2004 and April 2005, she used $7,500 of Ralstons money to make payments on another Visa card (Aspire) that belonged to her.

Meanwhile, in February 2005, New York Life received a request to withdraw about $10,000 from Ralstons New York Life annuity. A check was sent to Ralston. Linda Specht, the local financial advisor who was responsible for Ralston as a client, received notice of the withdrawal. She also received notice that defendant had been designated the beneficiary of the annuity. These transactions led her to call New York Life and then pull the file because she was worried about it.

On May 2, 2005, New York Life received a request for full surrender of the annuity, which had about $100,000 in it. A New York Life representative called Specht to remind her there would be a surrender charge. Based on her conversation with the New York Life representative, Specht called the sheriff. That led to a criminal investigation of defendant for the financial abuse of an elder. In turn, that investigation led to the filing of a complaint against defendant in March 2006 for 15 counts of theft from an elder by a caretaker and one count of attempted theft from an elder by a caretaker.

The case came to trial in September 2006. As we will explain in greater detail below, following the close of the prosecutions case-in-chief the number of theft counts was reduced from 16 to 5. Count 1 alleged theft involving cash, checks, the payments toward the two Visa accounts, the purchase of plane tickets, and expenditures made at two stores (Cabbage Rose and La De Da). Count 2 alleged theft regarding checks written to defendants business, Caring in a Time of Need. Count 3 alleged theft regarding the payments made for improvements to defendants home. Count 4 alleged theft regarding the Employees Life annuity. Finally, count 5 alleged attempted theft regarding the New York Life annuity.

The jury found defendant guilty of three of the theft counts and the attempted theft count. Before the jury completed its deliberations on the remaining theft count (count 2, involving checks written to defendants business), the prosecution dismissed it for insufficient evidence.^[2] The jury then found true an enhancement allegation that the amount taken was more than $100,000. The trial court denied defendants new trial motion, declined her request for probation, and sentenced her to an aggregate term of four years in prison.

DISCUSSION

I

Wheeler/Batson^[3]Error

Defendant contends the trial court erred in denying her Wheeler/Batson motion regarding the prosecutors use of a peremptory challenge against a Hispanic juror. We find no error.

Prospective jurors may not be excluded from jury service based solely on the presumption that they are biased because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds. [Citations.] A defendant bears the burden of establishing a prima facie case of Wheeler error. [Citation.] If the court finds a prima facie case has been shown, the burden shifts to the prosecution to provide race-neutral reasons for the questioned peremptory challenges. [Citation.] The prosecutor need only identify facially valid race-neutral reasons why the prospective jurors were excused. [Citations.] The explanations need not justify a challenge for cause. [Citation.] Jurors may be excused based on hunches and even arbitrary exclusion is permissible, so long as the reasons are not based on impermissible group bias. [Citation.] (People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.) Once a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great deference to its conclusion. (Id. at p. 1126.)

Here, defendant asserts Wheeler error in the prosecutors peremptory challenge of Prospective Juror C. According to defendant, the prosecutor did not . . . articulate any credible reason for removing [Prospective] juror [C.] and her use of three of her first four peremptory challenges to excuse Hispanic jurors, including Prospective Juror C., strongly suggests her reasons for removing [Prospective] juror [C.] [were] a sham.

Prospective Juror C. identified herself as a real estate loan officer or mortgage broker. She said she had never sat on a jury before, was not married, and had no children. She did not recall ever having dealt with anybody in her line of work that might not be all there or appeared to be suffering from some sort of dementia or memory loss or something of that sort. She had [n]ever given . . . any thought to sitting on a jury. Although she had been subpoenaed for jury duty like four or five times, she had never made it to voir dire before.

After the prosecutor exercised a peremptory challenge to excuse Prospective Juror C., defense counsel made a Wheeler objection and motion, asserting that three of the four jurors the prosecutor had excused with peremptory challenges were, or appeared to be, Hispanic, including Prospective Juror C. The trial court agreed a prima facie case of Wheeler error had been shown and asked the court to explain her reason for excluding the three Hispanic jurors. With regard to Prospective Juror C.,^[4]the prosecutor stated as follows: [F]irst of all, I thought she looked Italian. I didnt know that she was Hispanic. She is a mortgage broker, that is true. I just -- shes never had any dealings with [the] elderly. Shes never worked with anybody that seemed to suffer from any sort of dementia or have any experience along some of those lines. [] Shes not married. She doesnt have any children. I just felt that she might be suited for a different -- a different case. It had nothing to do with what her background was. [] Like I said, I didnt even know she was Hispanic.

The trial court accepted the prosecutors explanation, stating, I dont think [the prosecutor] has excused [Prospective Juror C.] because of her race. I think she excused her for other race neutral reasons . . . . I accept her reasoning.

We find no error in the trial courts ruling. The prosecutors explanation that she did not know Prospective Juror C. was Hispanic and that she excused her because she was not married, did not have any children, and had not had any experience with anybody suffering from dementia constituted adequate neutral reasons for the peremptory challenge to Prospective Juror C. (People v. Alvarez (1996) 14 Cal.4th 155, 197.) The question was not whether the prosecutor had a good reason for challenging the prospective juror, only whether the reason the prosecutor offered was legitimate, i.e., not a mere surrogate or proxy for group membership. (See ibid.) Moreover, substantial evidence supports the trial courts implicit finding that the prosecutors reasons for excusing Prospective Juror C. were genuine. (See ibid.) Because the prosecutors neutral explanations indeed related to [the] individual [juror] and related directly to this case, the superior courts finding of genuineness was supported by substantial evidence. (Id. at p. 198.) It is also worth noting that any suggestion of group bias as a basis for the prosecutors challenge to Prospective Juror C. was substantially undercut by the fact that the trial court determined the other two Hispanic prospective jurors were excused for reasons unrelated to their race, and defendant does not challenge that aspect of the courts ruling on appeal. Accordingly, we find no merit in defendants claim of Wheeler/Batson error.

II

Number Of Convictions

Defendant contends that because the conduct underlying all three counts of theft and the one count of attempted theft occurred pursuant to a continuing overall scheme or plan, she could properly be convicted of only a single count of theft. We disagree.

[I]n a series of takings from the same individual, there is a single theft if the takings are pursuant to one continuing impulse, intent, plan or scheme, but multiple counts if each taking is the result of a separate independent impulse or intent. (People v. Packard (1982) 131 Cal.App.3d 622, 626.) This rule is sometimes referred to as the Bailey doctrine, after People v. Bailey (1961) 55 Cal.2d 514. (See, e.g., People v. Drake (1996) 42 Cal.App.4th 592, 596.)

In Packard, the court stated that [w]hether there were separate independent takings or one general scheme is a question of factbased on the particular circumstances of each case. (People v. Packard, supra, 131 Cal.App.3d at p. 626.) Defendant contends [t]his is incorrect. In her view, the question of whether a series of takings . . . were made pursuant to one overall scheme or plan . . . presents a mixed question of law and fact.

Defendant is mistaken. That application of the Bailey doctrine in a particular case is a question of fact is apparent from many cases -- most notably, the two cases cited in Packard that defendant contends do not support that proposition. In the first of those cases, Bailey itself, our Supreme Court stated that [t]he test applied . . . in determining if there were separate offenses or one offense is whether the evidence discloses one general intent or separate and distinct intents. . . . [] Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. (People v. Bailey, supra, 55 Cal.2d at p. 519, italics added.)

In the second case, People v. Sullivan (1978) 80 Cal.App.3d 16, which involved multiple charges of grand theft, the trial court refused a jury instruction proffered by the defense that would have told the jurors that if they found the acts of the defendant were committed pursuant to one general intent or impulse they could find that the acts constituted a single offense. (Id. at pp. 18-19.) The appellate court concluded the refusal to give that instruction was error. (Id. at p. 21.) The court further noted as follows: The evidence did not compel the conclusion that only one offense was involved in the takings alleged in counts two and five through twelve. However, since substantial evidence exists to this effect, the trial court erred in failing to give the instruction requested by appellant, which would have permitted the jury to pass upon the question of whether the acts were committed pursuant to one general intent or impulse and one plan. (Ibid., italics added.)

It appears clear from Bailey and Sullivan that whether a series of takings from a single individual constituted one theft or multiple thefts is a question of fact. Nonetheless, defendant argues it is a question of law because the courts in . . . Packard . . . and People v. Brooks (1985) 166 Cal.App.3d 24, 31-32, would not have been able to reverse convictions based on the Bailey doctrine if its application presented only a question of fact. Again, defendant is mistaken.

Packard involved theft by fraudulent invoices where the victim, Paramount Studios, paid the defendant several times a month over a period of three years. (People v. Packard, supra, 131 Cal.App.3d at p. 625.) The prosecutor charged the theft as three counts, one for each year, and in a bench trial the court convicted the defendant on all three counts. (Id. at pp. 625-626.) On appeal, the defendant argued that as a matter of law there was a single theft pursuant to one intention and general plan or scheme to steal money from Paramount. (Id. at p. 626.) He also argued that the only reasonable conclusion supported by the evidence [wa]s that all the takings were pursuant to one general intent and scheme and that, [i]n any event, . . . there [wa]s no reasonable basis in the record for concluding that [he] had three separate schemes, each based neatly on calendar years, as distinguished from either one general scheme or a separate theft for each invoice and payment. (Ibid.) The appellate court found merit in the defendants arguments. (Ibid.) Moreover, the court went on to note that even the People did not specifically contend that there [wa]s a basis in the evidence for an inference of fact that appellant had three separate yearly schemes. (Ibid.) The Peoples justification for the three separate counts rested not on evidence of the defendants intent, but on an interpretation of Penal Code section 487 that the appellate court concluded was erroneous. (Packard, at p. 626.) Accordingly, the court concluded that [i]n the absence of any evidence from which it could reasonably be inferred that appellant had three separate intents and plans, the only reasonable conclusion supported by the record is that appellant had a single continuing plan or scheme for stealing money from Paramount. [Citation.] Appellant should have been convicted of only a single grand theft. (Id. at p. 627.)

Properly read, Packard is entirely consistent with the rule that whether a series of takings from a single individual constituted one theft or multiple thefts is a question of fact. Packard simply recognized that where the evidence supports only one reasonable conclusion on the question, it may be resolved as a matter of law -- just as every question of fact may be. (See West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 985 [issues of fact become those of law where . . . the facts are undisputed and permit of only one conclusion].)

Brooks is of no greater assistance to defendant. There, the defendant, who ran an auction business, was convicted of 13 counts of felony grand theft and 1 count of misdemeanor theft based on the fact that after he conducted an auction on a particular day in 1980, Fourteen consignors of equipment sold at this auction never received the proceeds from the sale of their machinery. (People v. Brooks, supra, 166 Cal.App.3d at pp. 24, 27.) On appeal, the appellate court concluded that the instant thefts from a single fund arising from a single auction, when seen in the light of the prosecutions own theory of a common scheme of kiting auction proceeds, were the product of a general intent or overall plan, with but a single ultimate object and thus punishable as a single offense under Penal Code section 654. (Brooks, at p. 31.)

Brooks is of no assistance to defendant for at least two reasons. First, the Brooks court did not expressly address the question of whether the issue before it -- how many thefts the defendant had committed -- was a question of fact or a question of law. Second, Brooks conflated the question of whether multiple convictions are permissible under the Bailey doctrine with the entirely separate question of whether multiple punishment is permissible under Penal Code section 654. (See People v. Garcia (1990) 224 Cal.App.3d 297, 308-309 [criticizing Brooks on this basis].) For these reasons, we find Brooks unpersuasive on the question at issue here.

Thus, under the case law, the question of whether a series of takings from a single individual constituted one theft or multiple thefts is a question of fact. Defendant contends, however, that [t]he parties below . . . treated the application of the Bailey doctrine as a question of law, and this appears to be true inasmuch as they argued to the trial court over how many counts of theft could properly be charged but did not submit the issue to the jury.

Following the close of her case-in-chief, the prosecutor moved to amend the information to charge only nine counts where it had previously charged 16. Defense counsel argued that under the Bailey doctrine [t]his is all one course of conduct and [i]t should be one count. The court decided that five of the counts the prosecutor wanted to charge separately were distinct from the remaining counts but were not distinct from one another, so the court allowed an amended information containing five counts to be filed. Immediately thereafter, the court explained to the jurors that the number of counts had been reduced from 16 to 5, but told them they were to disregard the reason for the reduction of counts and simply make a decision as to whether or not the defendant is guilty or not guilty of any or all of the counts. Consistent with this admonition, the trial court ultimately instructed the jury that [e]ach of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.

At no point did defendant argue in the trial court that the question of how many thefts had occurred, if any, should be submitted to the jury under an instruction of the sort offered in Sullivan.^[5] Thus, it appears the parties did treat the issue as a question of law for the court to decide.^[6] Maintaining that approach on appeal, defendant essentially argues that the trial court erred in allowing the case to proceed on more than one count of theft because, as a matter of law, she had only one continuing overall scheme or plan and thus only one count of theft could properly be maintained against her.

In light of this argument, the question for us on appeal is whether, based on the evidence, a reasonable trier of fact could have found that defendant had separate and distinct intents, or whether, instead, the only reasonable conclusion from the evidence was that defendant had a single, general intent to steal from Ralston. If the former scenario is true, then the trial court did not err in allowing the case to go forward on more than one count; only if the latter scenario is true would any error be shown. Of course, to convince us that only one reasonable conclusion follows from the evidence, defendant must actually set forth the evidence in making her argument. (Cf. Road Sprinkler Fitters Local Union No. 669 v. G & G Fire Sprinklers, Inc. (2002) 102 Cal.App.4th 765, 782 [appellant challenging sufficiency of the evidence must set forth all material evidence on the point].) This she does not do. Instead, in arguing that she could properly be convicted of only a single count of theft, defendant focuses exclusively on the prosecutors opening statement and closing argument to the jury. In defendants view, The prosecution theory was that [defendant] had a single scheme to obtain Ms. Ralstons money and [e]ach individual transaction was simply part of the overall scheme perpetrated by [defendant] for the purpose of obtaining Ms. Ralstons money.

It is, however, of no moment to us what the prosecutions theory may have been, if, based on the evidence, a reasonable trier of fact could have found that defendant had separate and distinct intents. To carry her burden of demonstrating trial court error, defendant had to show us that only one reasonable conclusion followed from the evidence. By failing to set forth all of the relevant evidence on the point, defendant has failed to carry her burden. Accordingly, we find no error.

III

Sufficiency Of The Evidence

Defendant challenges the sufficiency of the evidence to support her convictions on count 4 (theft related to the Employees Life annuity) and count 5 (attempted theft related to the New York Life annuity) and the true finding that she stole more than $100,000. We will address each of those arguments in turn. First, however, we set forth the basic rules governing our review of these arguments.

The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] [I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citation.] The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.)

An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellants burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise. To meet that burden, it is not enough for the defendant to simply contend, without a statement or analysis of the evidence, . . . that the evidence is insufficient to support the judgment[] of conviction. [Citation.] Rather, he must affirmatively demonstrate that the evidence is insufficient. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

With these principles in mind, we turn to defendants arguments.

A

Count 4 -- The Employees Life Annuity

Defendant contends the evidence was insufficient to support her conviction of theft relating to the Employees Life annuity because [t]he evidence showed the Employee[s] Life annuity remained in Ms. Ralstons name and [t]he $35,437.40 withdrawn from the Employee[s] Life annuity was deposited into Ms. Ralstons savings account at the Bank of Stockton. In short, defendant contends there was no evidence she took any of the Employee[s] Life annuity.

At trial, the prosecutors theory of theft for count 4 was apparently twofold. First, the prosecutor suggested that defendant committed theft simply by putting Ralstons money in the annuity because the annuity wasnt for the benefit of [Ralston]s trust. It was for the sole benefit of . . . defendant. Second, the prosecutor suggested that defendant committed theft by taking the $35,437.40 withdrawn from the annuity.^[7]

On appeal, however, the People do not deny that the Employees Life annuity remained in Ralstons name at all times, and they make no attempt to justify the theft conviction relating to this annuity based on defendants mere purchase of it. Instead, the People rely exclusively on defendants use of the $35,437.40 she withdrew from the annuity. Specifically, the People argue that [a]lmost immediately after the [$35,437.40] had been deposited [into Ralstons savings account], [defendant] started taking large cash withdrawals. They also point out that shortly after that deposit, a check for $2,000 drawn on Ms. Ralstons account was used to pay [defendants] Aspire VISA, and later another $1,500 was used to pay Aspire VISA. The People also point to the money expended by [defendant] for such things as patio and lawn furniture and landscaping. In the Peoples view, the evidence of these expenditures from an account that contained money withdrawn from the Employees Life annuity is sufficient to support defendants theft conviction on count 4.

In reply, defendant asserts (among other things) that [t]he expenditures cited by [the People] to support count four . . . were the subject of count one. In other words, she contends that if the conviction on count 4 is based on her spending of the money withdrawn from the annuity, that conviction is duplicative of her conviction on count 1 and cannot stand.

This point has merit. The record demonstrates that the expenditures the People now (belatedly) attempt to use to justify the conviction on count 4 were already included not only within the scope of count 1, but also within the scope of count 3.

Count 1 of the amended information covered all of defendants cash withdrawals from Ralstons accounts, as well as her payments toward her Aspire Visa. As detailed above, ATM cash withdrawals were taken from Ralstons checking and savings accounts between December 2004 and April 2005. Also, between June 2004 and March 2005, defendant wrote checks to Cash, and in June 2004 she withdrew $8,500 in cash from Ralstons savings account. Between October 2004 and April 2005, defendant used Ralstons money to make payments on her Aspire Visa card. All of these transactions (and more) were covered by count 1, but the People are now attempting to rely on a subset of those transactions (those occurring after the deposit of the funds withdrawn from the Employees Life annuity at the end of January 2005) to justify defendants conviction on count 4.

Count 3 is similar. That count covered all of the amounts defendant took from Ralston for home improvement purchases. As detailed above, those purchases began in July 2004 with the installation of a flagstone walkway in her backyard; continued through the fall with the remodeling of the garage; and extended into 2005 with the backyard water feature, the patio table and chairs, the custom gates, and the block walls. All of those transactions fell within the scope of count 3, but the People are now attempting to rely on a subset of those transactions (those occurring after the end of January 2005) to justify defendants conviction on count 4.

Plainly defendant cannot be convicted of stealing the same money twice when she took it only once. Since the transactions on which the People seek to rest the conviction on count 4 were already included in counts 1 and 3, we agree with defendant that her conviction on count 4 cannot stand.

B

Count 5 -- The New York Life Annuity

Defendant contends the evidence was insufficient to support her conviction of attempted theft relating to the New York Life annuity because the prosecution evidence failed to prove [she] had the specific intent to steal the money from the New York Life annuity. According to defendant, It was pure speculation [that she] intended to use the money from the New York Life annuity solely for her own benefit [g]iven [her] use of a substantial portion of Ms. Ralstons money to benefit Ms. Ralston.

This argument fails at the threshold because defendant ignores the standard of review. As this court explained in People v. Sanghera, supra, 139 Cal.App.4th at page 1573, a defendant cannot prevail on a sufficiency of the evidence argument by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself. Instead, to prevail on a sufficiency of the evidence argument, the defendant must present his case to us consistently with the substantial evidence standard of review. That is, the defendant must set forth in his opening brief all of the material evidence on the disputed elements of the crime in the light most favorable to the People, and then must persuade us that evidence cannot reasonably support the jurys verdict. [Citation.] If the defendant fails to present us with all the relevant evidence, or fails to present that evidence in the light most favorable to the People, then he cannot carry his burden of showing the evidence was insufficient because support for the jurys verdict may lie in the evidence he ignores. (Id. at p. 1574.)

Such is the case here. Resting her argument on the assertion that she used a substantial portion of Ms. Ralstons money to benefit Ms. Ralston, defendant ignores the reasonable inference the jury was entitled to draw from its finding (the evidentiary basis of which defendant does not challenge on appeal) that defendant stole other sums from Ralston. Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence. (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.) Here, the jury reasonably could have inferred from all the facts and circumstances -- including the fact that defendant stole other sums from Ralston -- that defendant intended to steal the money from the New York Life annuity when she attempted to secure a full surrender of the $100,000 in that annuity in May 2005. Accordingly, the evidence was sufficient to support defendants conviction on count 5.

C

Aggravated White Collar Crime Enhancement

Defendant contends the evidence was insufficient to support the jurys finding that she took more than $100,000 from Ralston. We disagree.

At the time applicable here,^[8]subdivision (a)(1) of Penal Code section 186.11 provided in pertinent part that [a]ny person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of more than one hundred thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of which he or she has been convicted, by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3). This is known as the aggravated white collar crime enhancement. (Pen. Code, 186.11, subd. (a)(1).) At the time applicable here, when the amount taken was more than $100,000 but not more than $150,000, the additional term of imprisonment was one year. (Pen. Code, 186.11, subd. (a)(3); former Pen. Code, 12022.6, subds. (a)(1) & (2).)

Here, the jury found that defendant was guilty of two or more felonies which involved the taking of more than $100,000 within the meaning of Penal Code section 186.11, subdivision (a)(3). It is this finding defendant challenges. Essentially, she contends the evidence was sufficient only to support a finding that she took, at most, $8,282.95.

Her challenge to the evidence supporting the enhancement finding is twofold. First, with respect to the various takings that made up count 1, defendant contends the evidence was sufficient only to sustain a conviction of [her] having taken $4,985.45, which consisted of the combined cost of the plane tickets, the payments to [defendant]s credit card, and the payments to the retail stores Cabbage Rose and La De Da. With respect to the other $35,304.50 related to this count -- which consisted of ATM withdrawals, checks written to cash, and checks written to [defendant] -- defendant contends [t]he prosecution did not present evidence from which any reasonable juror could have concluded that [she], as the primary caretaker of Ms. Ralston, intended to use the money . . . for her own benefit and not for the benefit of Ms. Ralston.

This argument suffers from a fatal flaw similar to the one we found in the previous argument relating to count 5. Essentially defendant contends that absent specific evidence of what she did with the money she took from Ralstons accounts, the jury could not find that she intended to steal that money, given the evidence that she was the primary caretaker of Ms. Ralston and thus likely . . . spent much of the money for Ms. Ralstons benefit. The problem with defendants argument is that it ignores the reasonable inferences regarding defendants intent the jury was entitled to draw from all of the facts and circumstances of the case, including the fact that defendant stole other sums from Ralston to pay for plane tickets, pay off her own credit cards, make purchases for herself, and improve her home -- sums that defendant does not now dispute.^[9] From all the facts and circumstances -- including the theft of these other amounts -- the jury reasonably could have inferred that defendant intended to steal the $35,304.50 that she removed from Ralstons accounts by means of ATM withdrawals, checks written to cash, and checks written to herself.

The second aspect of defendants challenge to the evidence supporting the enhancement finding relates to count 3, which involved expenditures to improve her home. Of the more than $77,000 of Ralstons money that defendant acknowledges she spent on home improvements, she contends only $3,297.50 was arguably used solely to benefit [defendant] and not Ms. Ralston. This amount consists of $2,527.50 . . . spent to refinish the hardwood floors in the dining room, hallway and three bedrooms in [her] home and $770.00 . . . spent to paint [her] daughters bedroom. As for the remainder, defendant contends she could not be convicted of taking the following amounts:

(1) $42,175.00 . . . spent renovating the garage into a guest cottage for Ms. Ralston;

(2) $16,856.02 [spent] building walls and gates to [defendants] home and the guest cottage;

(3) $9,077 [spent] to lay concrete and install a flagstone patio between [defendants] home and the guest cottage; and

(4) 8,539.46 [spent] decorating the backyard.^[10]

Defendant contends she could not be convicted of taking the foregoing amounts because, in her view, these expenditures benefitted Ms. Ralston and therefore could not have constituted theft because Ms. Ralston was not permanently deprived of her property. Specifically, defendant contends Ralston lived in the [guest] cottage for approximately five months from January 2005 through May 2005. With respect to the walls and gates, defendant contends [i]t is well known that people with dementia have the tendency to wander and forget how to get home and thus they were provid[ed] for Ms. Ralstons protection. As for the concrete and flagstone patio, defendant argues they made walking from the cottage to [defendant]s home easier than if [Ralston] had to walk through grass. Finally, with respect to the decorations, defendant contends they created a more pleasant and relaxing environment for Ms. Ralston to spend her days.

We reject defendants argument. The fact that Ralston may have received some fleeting benefit from defendants expenditures to permanently improve her property with Ralstons money does not mean those expenditures could not be used to meet the monetary threshold for imposing the aggravated white collar crime enhancement. Certainly defendant cites no authority supporting that conclusion; in fact, defendants entire argument on this point contains not a single legal citation.

Substantial evidence supports the conclusion that defendant took Ralstons money with the intent to permanently deprive her of it and was therefore guilty of theft by larceny. (See People v. Davis (1998) 19 Cal.4th 301, 305 [elements of theft by larceny].) That defendant may have permitted Ralston to benefit for a time from what defendant did with the money does not make the taking any less of a theft. In the end, the improved property belonged to defendant, not Ralston, and the jury was entitled to include the amounts defendant spent on the improvements in its determination of how much defendant stole from Ralston.

IV

Instructional Error

Defendant contends the trial court erred by failing to give three different jury instructions sua sponte. We will address each of those instructions in turn. First, however, we set forth the legal principles governing a trial courts duty to instruct the jury sua sponte in a criminal case.

A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. (People v. Ervin (2000) 22 Cal.4th 48, 90.) However, a trial courts duty to instruct, sua sponte, or on its own initiative, on particular defenses . . . aris[es] only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195.) And while [a]n accused is entitled on request to nonargumentative instructions that pinpoint the theory of the defense, a trial court has no sua sponte duty to provide pinpoint instructions. (People v. Webster (1991) 54 Cal.3d 411, 443.) Finally, the failure to give a required instruction may be deemed harmless when the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. (People v. Wright (2006) 40 Cal.4th 81, 98.)

With these principles in mind, we turn to defendants arguments.

A

Mistake Of Fact

Defendant argues the trial court erred in failing to sua sponte give the mistake of fact instruction in CALCRIM 3406 because the evidence raised the issue of whether [defendant] believed she had authority to spend Ms. Ralstons money in the way she did. We disagree.

A person who commits an act . . . under a mistake of fact which disproves his or her criminal intent, is excluded from the class of persons who are capable of committing crimes. (People v. Russell (2006) 144 Cal.App.4th 1415, 1425, citing Pen. Code, 26, class three.) Consistent with this principle, CALCRIM No. 3406 instructs the jury that if the defendant did not have the required criminal intent or mental state because she mistakenly believed a fact, or if the defendants conduct would have been lawful under the facts as she believed them to be, then the defendant is not guilty.

Here, the jury was instructed on three types of theft: theft by larceny, theft by trick, and theft by embezzlement. For each type of theft, the intent element was essentially the same; the jury was instructed that to prove defendant was guilty of theft, the People had to prove that when she took, obtained, or converted the property, she intended to deprive Ralston of it permanently or remove it from Ralstons or Ralstons agents possession for so extended a period of time that Ralston would be deprived of a major portion of the value or enjoyment of the property.

Under defendants argument, the jury should have been instructed on mistake of fact because all the facts and circumstances of her relationship with Ms. Ralston raised a question of fact with regard to whether [defendant] honestly believed her expenditure of Ms. Ralstons funds was lawful. In other words, in defendants view, if she honestly believed she was entitled to spend Ralstons money the way she did, then she could not have intended to deprive Ralston of that money, and her mistake regarding the scope of her authority would have negated the criminal intent required for theft.

Although defendant frames her argument in terms of mistake of fact, the cases she cites address the issue in terms of claim of right. Thus, in People v. Tufunga (1999) 21 Cal.4th 935, the California Supreme Court explained that in theft cases [i]t has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property [taken] negates felonious intent. [Citations.] A belief that the property taken belongs to the taker . . . is sufficient to preclude felonious intent. (Id. at p. 943.)

Consistent with this rule, Penal Code section 511 provides that as to the crime of embezzlement, it is a sufficient defense that the property was appropriated openly and avowedly, and under a claim of title preferred in good faith, even though such claim is untenable. In this context, however, good faith means more than simply (as defendant contends) a belief the defendant actually held. Whether a claim is advanced in good faith does not depend solely upon whether the claimant believes he was acting lawfully; the circumstances must be indicative of good faith. [Citations.] For example, the circumstances in a particular case might indicate that although defendant may have believed he acted lawfully, he was aware of contrary facts which rendered such a belief wholly unreasonable, and hence in bad faith. (People v. Stewart (1976) 16 Cal.3d 133, 140, quoting People v. Martin (1957) 153 Cal.App.2d 275, 283.)

Where it appears a defendant in an embezzlement case is relying on a claim-of-right defense, or there is substantial evidence to support such a defense, the trial court has a duty to instruct the jury on that defense sua sponte. (People v. Stewart, supra, 16 Cal.3d at p. 140.) In the context of a trial courts duty to instruct sua sponte, Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Barton, supra, 12 Cal.4th at p. 201, fn. 8.)

Here, defendant contends there was substantial evidence to support a claim-of-right or mistake-of-fact defense essentially because the evidence showed she had a close and intimate friendship with Ms. Ralston and Ralston made defendant the beneficiary of her living trust. According to defendant, Given [her] close relationship with Ms. Ralston and the fact [defendant] was going to receive [Ralstons] estate upon her death, the evidence raised a question of fact whether [defendant] honestly believed the expenditures were legal.

We do not agree that the evidence on which defendant relies was such that a reasonable jury could have found it persuasive on the question of whether defendant believed, in good faith, that she was entitled to spend Ralstons money as she did. It is significant to note that defendant herself did not testify in her own defense. Thus, this is not a case like Stewart, where the defendant, accused of embezzling corporate funds, testified that the person he believed was the sole owner of the corporation had given him permission to withdraw corporate funds for personal use from time to time. (People v. Stewart, supra, 16 Cal.3d at p. 138.) Here, defendant relies solely on inferences she believes the jury could have drawn from the evidence presented of her close relationship with Ralston and her status as the beneficiary of Ralstons estate. But these factors do not support a reasonable inference that defendant believed in good faith she was entitled to indiscriminately spend more than $100,000 of Ralstons money on the things she did, including substantial improvements to her own home, paying off her own credit cards, and airline tickets for herself and her future husband, who did not know Ralston. Moreover, the closeness of defendants relationship with Ralston and her status as the beneficiary of Ralstons estate cannot be viewed in isolation from the remaining evidence, including (but not limited to) the evidence that when the first attorney to whom she brought Ralston refused to prepare a power of attorney to give her control of Ralstons money, she quickly found another who would.

Because we do not find any substantial evidence to support a mistake-of-fact or claim-of-right defense, we conclude the trial court did not err in failing to instruct the jury on mistake of fact sua sponte.

B

Entitlement To Reasonable Compensation

Defendant contends the trial court erred in failing to instruct the jury sua sponte that she was entitled to reasonable compensation from Ms. Ralstons assets for the value of the services she provided in caring for Ms. Ralston. We find no error.

Defendant premises her argument on Probate Code section 4204, which provides that [a]n attorney-in-fact is entitled to reasonable compensation for services rendered to the principal as attorney-in-fact.^[11] An attorney-in-fact is a person granted authority to act for the principal in a power of attorney. (Prob. Code, 4014, subd. (a).) Thus, at best, the statute on which defendant relies provides that she was entitled to reasonable compensation for services rendered to Ralston while she was acting as Ralstons attorney-in-fact under the power of attorney. Defendant, however, contends the jury should have been told that she was entitled to compensation for her time caring for Ms. Ralston. Time spent caring for Ralston, however, is not the same as time spent acting as Ralstons attorney-in-fact.

As we have explained, a courts duty to instruct sua sponte on general principles of law is limited to those principles that are closely and openly connected with the facts presented at trial (People v. Ervin, supra, 22 Cal.4th at p. 90), and a court has a duty to instruct on a particular defense only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case (People v. Barton, supra,12 Cal.4th at p. 195). Here, defendant has failed to persuade us that the legal principle regarding her right to reasonable compensation for the services she rendered to Ralston as Ralstons attorney-in-fact (as distinguished from the services she may have rendered as Ralstons caregiver) was closely and openly connected with the facts presented at trial. Moreover, defendant points to nothing in the record to show she was relying on the legal principle from Probate Code section 4204 as a defense, and she fails to point to any evidence in the record, substantial or otherwise, supportive of such a defense. Only in broad terms does she assert that [t]he jury could have considered the ATM withdrawals, checks to cash, and payment of several of her debts directly from Ms. Ralstons checking or savings account in determining whether [she] was simply receiving reasonable compensation for the services she was providing Ms. Ralston. This alone, however, is not enough to persuade us the trial court had a duty to sua sponte instruct the jury on the right of an attorney-in-fact to reasonable compensation for services rendered in that role. For example, defendant points to no evidence that would provide a reasonable and proportional link between the amount of money she took in ATM withdrawals, checks to cash, and for payment of her debts to services she rendered to Ralston as Ralstons attorney-in-fact. Under these circumstances, we reject defendants claim of instructional error.

C

Fiduciarys Improper Use Of Funds

Defendant contends the trial court erred in failing to instruct the jury sua sponte on the difference between civil breach of fiduciary duty and criminal liability for theft. Again, we find no error.

Defendant relies primarily on People v. Whitney (1953) 121 Cal.App.2d 515 to support her argument. That reliance is misplaced. In Whitney, the appellate court found the jury instructions on embezzlement erroneous primarily because the instructions omit[ted] the most important element required by the Penal Code sections, the appropriation of such property with fraudulent intent. (Whitney, at p. 520.) In other words, the Whitney jury received no instruction on the intent element of the crime of embezzlement.^[12] By the instructions thus given and emphasized the jury would naturally understand that any conversion of the trust property was sufficient to establish the criminal offense of embezzlement. (Whitney, at p. 520.)

Here, in contrast, the jury was instructed on the intent element of all three types of theft at issue: theft by larceny, theft by trick, and theft by embezzlement. Under the instructions given, the jury could have convicted defendant only if it found that when she took, obtained, or converted Ralstons property, she possessed the requisite criminal intent, i.e., the intent to deprive Ralston of her property permanently or remove it from Ralstons or Ralstons agents possession for so exte