Filed 7/7/26 P. v. High CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085745
Plaintiff and Respondent,
v. (Super. Ct. No. SCD301998)
EILEEN HIGH,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Laura H. Parsky, Judge. Affirmed.
Jonathan Grossman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene Sevidal, Assistant Attorney General, Eric A.
Swenson and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A jury convicted Eileen High of three counts of theft of more than $950
from an elder (Pen. Code,1 § 368, subd. (d)), after she stole money from her
mother’s bank account. The trial court placed her on three years formal
probation. On appeal, she contends her convictions are not supported by
substantial evidence and the trial court failed to properly instruct the jury on
the elements of the charged offense. We find no error and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
High lived in Oceanside with her elderly mother, Donnis, for several
years. After Donnis moved into a nursing home, she gave High access to her
bank account to pay some bills, such as paying Donnis’s monthly rent via
Zelle.2 It was not a joint account, and Donnis did not make High a co-signer.
Donnis did not give High permission to take money for herself or to pay her
own bills.
On February 1, 2023, High attempted to make two transfers from
Donnis’s account to herself via Zelle, but the bank denied the transactions.
On February 3, 2023, High successfully transferred $1,000 from Donnis’s
account to herself via Zelle. Donnis did not give High consent to transfer the
money. On June 2, High transferred $1,500 from Donnis’s account to herself
via Zelle without Donnis’s authorization. Then on July 5, High transferred
an additional $1,000 from Donnis’s account to herself via Zelle without
1 Further unspecified statutory references are to the Penal Code.
2 Zelle is a digital payments network that allows users to send and
receive money instantly between bank accounts. (See Baldwin Hackett &
Meeks, Inc. v. Early Warning Servs., LLC (2025) 153 F.4th 656, 659, fn. 3.)
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Donnis’s authorization. The money from the Zelle transfers was all deposited
into High’s bank account.
Meanwhile, Donnis attempted to access her bank account online, but
the password had been changed. She contacted the bank and set a new
password. Twice more she received notifications that someone had changed
her password. Ultimately, Donnis’s social worker took her to the bank where
she froze her account. Then they reported the unauthorized account activity
to police.
High testified that Donnis could not have money accumulate in her
bank account because she was getting financial assistance. So occasionally
High transferred money from Donnis’s account to her own. High would use
that money to take care of Donnis and would offer to give the money back at
any time if Donnis asked.
High denied knowledge of the transfers from Donnis’s account to
herself in June and July 2023 and explained her own bank account was
hacked at that time. She admitted making one transfer from Donnis’s
account to herself in February 2023 to pay Donnis’s rent for the entire year.
When asked why she would need to transfer money to herself to pay Donnis’s
rent when Donnis’s bank records showed rent payments were made directly
to the landlady, High theorized that the landlady was taking double rent
payments.
DISCUSSION
I.
High’s Convictions Are Supported by Substantial Evidence
The People’s theory of liability against High was theft by larceny. High
contends the evidence presented at trial is insufficient to support her
convictions under this theory.
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When considering a challenge to the sufficiency of the evidence to
support a conviction, we view the record in the light most favorable to the
judgment to determine whether it contains substantial evidence so that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. (People v. Collins (2025) 17 Cal.5th 293, 307 ; Jackson v. Virginia
(1979) 443 U.S. 307, 319.)
Under section 368, subdivision (d)(1), a noncaretaker “who violates any
provision of law proscribing theft” of more than $950 from an elder is guilty of
a felony. “Theft, in turn, is defined in section 484, subdivision (a) . . . .
Section 484 consolidates the offenses of larceny, theft by false pretenses, and
embezzlement into the single crime of ‘theft.’ ” (People v. Kaufman (2017)
17 Cal.App.5th 370, 378–379 (Kaufman).) “Although the crimes were
consolidated under the general crime of ‘theft,’ the underlying elements did
not change; ‘to prove its commission, the evidence must establish that the
property was stolen by larceny, false pretenses, or embezzlement.’ ” (Id. at
p. 379.)
Theft by larceny requires proof that the defendant committed a
trespass by taking property owned by another without the owner’s consent
and with the intent to deprive the owner of the property permanently, and
“moved the property, even a small distance, and kept it for any period of time,
however brief.” (CALCRIM No. 1800.) “The act of taking personal property
from the possession of another is always a trespass unless the owner consents
to the taking freely and unconditionally or the taker has a legal right to take
the property.” (People v. Davis (1998) 19 Cal.4th 301, 305.)
High argues she did not “move” Donnis’s money because “[m]oney was
transferred electronically, but nothing was physically carried.” She also
argues she did not commit a trespassory taking because Donnis consented to
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High accessing her bank account to make certain transactions and, thus,
High had possession of all the funds in the account.
First, High did not have to physically move money from Donnis to
herself for her conduct to satisfy the asportation element of larceny. For
generations, larceny charges have been premised on the transfer of funds via
bank draft without the physical movement of cash. (See, e.g., Kaufman,
supra, 17 Cal.App.5th at pp. 375, 382, 387 [asportation element of larceny
satisfied where defendant misappropriated funds by accepting cashier’s check
from third party for funds that were owed to the victim]; People v. Burns
(1911) 16 Cal.App. 416, 418–419 [larceny charge premised on defendant
presenting bank draft purportedly signed by the victim, which caused bank to
deposit funds from victim’s account into account controlled by defendant].)
We see no reason for a different rule to apply to the transfer of funds via
digital payments between bank accounts.
Second, the evidence shows Donnis did not unconditionally consent to
High’s accessing, possessing, or taking all the money in her bank account, or
to High making the specific transfers at issue here. It is undisputed that
Donnis gave High limited, conditional access to certain funds in her bank
account for the restricted purpose of paying specific bills. But Donnis did not
make High a co-owner or a co-signer on the account. And she testified that
she did not authorize High to take money from her account for High’s
personal use nor consent to the transfers underlying the convictions here.
Although High testified at trial that she did not take money from Donnis
without consent, the jury rejected her testimony. And on appellate review for
substantial evidence, we do not reweigh the evidence, assess witness
credibility, or choose between competing inferences. (People v. Stewart (2000)
77 Cal.App.4th 785, 790.) When viewing the conflicting testimony in the
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light most favorable to the judgment, as we must, we find the evidence is
sufficient for a rational trier of fact to have found High guilty beyond a
reasonable doubt of theft from an elder under a theory of larceny.3
II.
The Trial Court Did Not Commit Instructional Error
The trial court instructed the jury on the elements of theft from an
elder under a theory of theft by larceny. It did not instruct on any other
theory of theft liability. High contends that the court failed to properly
instruct the jury on the elements of the offense charged because it should
have instructed on theft by embezzlement instead of larceny.4
We review instructional error claims de novo. (People v. Caparrotta
(2024) 103 Cal.App.5th 874, 902.) “ ‘It is settled that in criminal cases, even
in the absence of a request, the trial court must instruct on the general
principles of law relevant to the issues raised by the evidence. The general
3 Because we find substantial evidence supported High’s convictions
based on the bank transfers, we do not address her argument as to whether a
theft conviction could have been sustained based on her taking Donnis’s other
property.
4 The Attorney General argues High forfeited this claim by failing to
request instructions on a theory of embezzlement at trial. High argues the
forfeiture doctrine does not apply because the trial court had a sua sponte
duty to instruct the jury on every element of the offense. “[F]ailure to object
to instructional error will not result in forfeiture if the substantial rights of
the defendant are affected.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
Because “ascertaining whether claimed instructional error affected the
substantial rights of the defendant necessarily requires an examination of
the merits of the claim—at least to the extent of ascertaining whether the
asserted error would result in prejudice” (People v. Franco (2009) 180
Cal.App.4th 713, 719 [cleaned up]), we exercise our discretion to consider the
argument on appeal.
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principles of law governing the case are those principles closely and openly
connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.’ ” (People v. Smith (2013) 57 Cal.4th 232,
239 (Smith) [citations omitted].) “ ‘That obligation includes instructions on
all of the elements of a charged offense,’ and on recognized ‘defenses . . . and
on the relationship of these defenses to the elements of the charged offense.’ ”
(People v. Rubalcava (2000) 23 Cal.4th 322, 334 [citation omitted].)
“Omitted element error is generally subject to harmless error analysis
under Chapman v. California (1967) 386 U.S. 18.” (People v. Oyler (2025)
17 Cal.5th 756, 838 (Oyler).) “Under this analysis, ‘[w]e must determine
whether it is clear beyond a reasonable doubt that a rational jury would have
rendered the same verdict absent the error’ in omitting a necessary element
of the offense.”5 (Ibid.)
Again, the People charged High under a theory of theft by larceny.
And, as we have explained, substantial evidence supported this theory of
liability. The trial court was required to instruct the jury on the elements of
this theory because it was relevant to the issues raised by the evidence and
necessary for the jury’s understanding of the case. (Smith, supra, 57 Cal.4th
at p. 239.) Thus, the court was not permitted to omit larceny instructions in
favor of instructions on an embezzlement theory, as High suggests. Notably,
5 The Attorney General suggests we should not apply the Chapman
standard because the trial court properly instructed the jury on the elements
of the charged offense. Nevertheless, the Attorney General argues any error
was harmless even under Chapman. We agree, but we also note that for the
reasons we shall discuss in finding the error harmless under Chapman, we
also would find the error harmless under the standard of People v. Watson
(1956) 46 Cal.2d 818 [error harmless where it is not reasonably probable
defendant would have obtained a more favorable result absent the error].
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High does not contend the trial court failed to adequately instruct the jury as
to every element required under the larceny theory. Accordingly, the trial
court fulfilled its duty to instruct on the elements of the crime, as it was
charged. (See Kaufman, supra, 17 Cal.App.5th at p. 390 [finding no error
where trial court instructed on the prosecution’s theory of liability rather
than alternate theory, and noting “it is the prosecutor’s role to decide whom
to charge and what charges to bring” and “[w]hen the prosecution files an
accusatory pleading, it assumes the obligation to prove only the elements of
the stated charge and any lesser offense necessarily included therein”].)
But even if we could find that the court should have instructed the jury
on the theory of theft by embezzlement in addition to larceny, the error was
harmless under either the Chapman or Watson standards. As we have
explained, the evidence supported the theory of theft by larceny. Given the
state of the evidence, “ ‘it is clear beyond a reasonable doubt that a rational
jury would have rendered the same verdict absent the error.’ ” (Oyler, supra,
17 Cal.5th at p. 838.).
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DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.
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