1 Filed 3/19/15 P. v. Thompson CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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THE PEOPLE, Plaintiff and Respondent,

v. REGINALD THOMPSON, Defendant and Appellant. C073755 (Super. Ct. No. SF120611A)

Defendant Reginald Thom pson committed theft from several individuals and a cemetery in connection with hi s mortuary business. Convic ted by jury of seven theft crimes and sentenced to six years eight mont hs, he appeals. He contends that the evidence was insuffici ent to support the conv iction on two of the counts and that the trial court imposed an unauthorized sentence for one of the counts. Only the last contention has merit, so we modify and affirm the judgment.2 BACKGROUND This case arose because of defendant’s d ealings in the mortua ry business. Over the course of several years, defendant took clients’ money not inte nding to provide the agreed-upon services, failed to refund an overpayment, or fa iled to place funds given to him on a “pre-need” basis into a trust account as required by law. He also issued a check to a cemetery without sufficien t funds to cover the check. A jury convicted defendant of the following crimes: Count 1: theft from an elder (Pen. C ode, § 368, subd. (d); Minnie Bethea); Count 2: theft from an elder (Pen. C ode, § 368, subd. (d); Preston Campbell); Count 3: theft from an elder (Pen. Code, § 368, subd. (d); Willie Smith); Count 4: theft from an elder (Pen. C ode, § 368, subd. (d); Clemmie Owens); Count 5: misdemeanor theft from an el der (Pen. Code, § 368, subd. (d); Janie Case); Count 6: grand theft (Pen. Code, § 368, subd. (d); Lodi Memo rial Cemetery); and Count 7: misdemeanor petty theft (Pen. Co de, § 484, subd. (a); Patricia Miller). The facts underlying counts 4 and 7 are discussed later. The trial court sentenced defendant to an aggregate term of six years eight months, with three years eight months to be served in county jail. Additional details of sentencing are discussed later. DISCUSSION
I Sufficiency of Evidence “In reviewing a sufficiency of evidence claim, the re viewing court’s role is a limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire reco rd, a rational trier of fact could find the defendant guilty beyond a reas onable doubt. [Citations.] On appeal, we must view the3 evidence in the light most fa vorable to the People and must presume in support of the judgment the existence of ever y fact the trier could reasonably deduce from the evidence. [Citation.]” ’ [Citations.]” ( People v. Smith (2005) 37 Cal.4th 733, 738-739.) We must accept any reasonable inference the jury mi ght have drawn from the evidence. ( People v. Rodriguez (1999) 20 Cal.4th 1, 11.) A. Theft from an Elder (Count 4) Penal Code section 368, subdivision (d ) proscribes theft from an elder – here, Clemmie Owens, who was 86 at the time of th e theft. Defendant contends there was insufficient evidence to suppor t the conviction in count 4 for theft from an elder because, although Owens was an elder, the evidence does not suppor t a finding that there was a theft. The contention is without merit. Penal Code section 484, subdivision (a ), defines theft: “Every person who shall feloniously steal, take, carry, lead, or drive away the personal propert y of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any fals e or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report fals ely of his or her wealth or me rcantile character and by thus imposing upon any person, obtains credit a nd thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.” A theft conviction will be upheld as long as there is sufficient evidence of any relevant theory of theft. ( People v. North (1982) 131 Cal.Ap p.3d 112, 117-118.) 1. Facts In January 2012, Owens’s daughter pa ssed away, and defendant was called to provide mortuary services. Owens paid for th e services. Shortly after that, in May 2012, Owens’s husband passed away. Defendant also provided mo rtuary services for his4 passing, paid for by Owens. Owens’s ni ece, Crystal Williams, assisted with the arrangements. At the time of her daughter’s funeral, Owens paid defendant with a cashier’s check. However, she accidentally overpaid defendant. Defendant noticed the overpayment before the daughter’s funera l and told Owens and Williams about it. Williams spoke to defendant a day or two after the funeral, and defendant said he was going to get the overpayment back to Owens. On the day that Owens’s husband passe d away, defendant went to the Owens home and gave Owens a check for $3,625. 25 to refund the overpayment for the daughter’s mortuary services. Against th e advice of family members who were suspicious of defendant because he had not previously refunded the overpayment, Owens wanted defendant to provide the mortuary services. She trusted him. Defendant recommended that the amount of the check go toward mort uary services for Owens’s husband, but Williams and Owens rejected that option. Owens paid separately, including an insurance policy, for the mortua ry services for her husband. Owens deposited the check from defend ant in her bank account, but it was returned because there were insufficient funds in defendan t’s bank account. Williams had numerous discussions with de fendant about the funds, asking him to pay or at least to make up a payment plan, but defendant said he was having financial problems. Defendant testified that, after the funeral of Owens’s daughter, Owens asked him to hold onto the overpayment because she ha d not made any decisions about her own and her husband’s later burials. When Owens’s husband passed away, he was called to the Owens’s home and was asked to bring a check for the balance of the overpayment. He understood that Owens would cas h the check. He testified that the check was returned for insufficient funds b ecause he had paid expenses for the funeral of Owens’s husband and he had not yet received th e payment on the insurance po licy, which was to pay, in part, for the services. He had asked Owens not to cash th e check until he received the5 money on the insurance policy. Defendant claimed that, when he eventually received payment on the policy, it was fo r about $2,900, rather than the $4,500 face value of the policy, because a loan had be en taken out on the policy. Defendant admitted he never reimbursed Owens for overpayment on the daug hter’s mortuary services, but he claimed that he never intended to steal from Owens. 2. Analysis The trial court instructed the jury on several theories of theft, including theft by embezzlement. Because the evidence concerning the theft from Owens was sufficient on an embezzlement theory, we need not discuss other possible theories. According to the instruction, which defe ndant does not challenge as inaccurate, the People must prove that: “1. An owner or the owner’s agent en trusted his or her property to the defendant; “2. The owner or owner’s agent did so because he or she trusted the defendant; “3. The defendant fraudulently converted or used that property for his own benefit; “AND “4. When the defendant converted the fu nds or used the property, he intended to deprive the owner of its us e.” (CALCRIM No. 1806.) Defendant argues that there was insuffi cient evidence of embezzlement because (1) Owens did not entrust the money to him and (2) he had no intent to deprive Owens of the money. Neither argument is well taken. While a mere creditor-debtor relationship is insufficient to establish the entrusting element of embezzlement, there need not be a fiduciary relati onship. Instead, the element is satisfied if there is a relati onship of trust and confidence. ( People v. Wooten (1996) 44 Cal.App.4th 1834, 1845.) He re, Owens allowed defendant to retain the overpayment6 temporarily because she trusted him. Theref ore, it was more than a mere cred itor-debtor relationship. Defendant violated Owens’s trust. Defendant argues that, because the mone y from Owens was not for a “pre-need” contract for mortuary services, the governi ng statutes did not re quire him to put the money in a trust. That argument, however, is beside the point. It was unnecessary for the prosecution to establish a fiduciary or trusto r-trustee relationship to prove embezzlement. Concerning intent to deprive Owens of th e use of her money, defendant says that “there is no evidence that [he] had a specific in tent to steal or any fraudulent intent at the time that Owens gave him the cashier’s ch eck as payment.” Embezzlement, however, does not require intent to deprive at that time the money is obtained. In contrast to other theft offenses, for embezzlement the intent to deprive the owne r of the use of the property need not exist at the ti me the property was entrusted to th e perpetrator; rather, the intent must exist only as of the time of the misappropriation. ( People v. Green (1980) 27 Cal.3d 1, 54, citing People v. Smith (1863) 23 Cal. 280 [if intent to steal is lacking at time of acquisition of property, offense is not larceny but may be embezzlement].) In any event, the jury could have r easonably rejected defendant’s self-serving testimony that he never intended to deprive Owens of the money. ( People v. Harbert (2009) 170 Cal.App.4th 42, 58.)
B. Petty Theft (Count 7) In count 7, defendant was convicted of petty theft from Patricia Miller. Defendant contends the evidence was insuffi cient to support the conviction because: (1) the victim and defendant had no contra ctual relationship, (2) there is no evidence defendant intended to take the money by fa lse pretenses when he agreed to provide services, and (3) the victim paid defendant afte r she already knew defendant had not delivered the agreedupon casket. The conten tions are without merit.7 1. Facts Rickey Cook passed away in May 2012. Cook’s sister, Patricia Miller, contacted defendant to provide mortuary services. Ronnie Cook, a nephew of both Rickey Cook and Patricia Miller, entered into a contract with defendant for those services in the amount of $1,695. Defendant agreed to prov ide a “New Pointe oval” casket, which was valued at $665. The nephew paid a $300 deposit, and defendant was given a life insurance policy to cover th e remaining balance. On the day set for the grav eside service, the family we nt to the cemetery, but the body was not there. Miller ca lled defendant, who apologized for not being there and said that he had not received the money from the insurance policy, which was for the casket. Miller told defendant to bring the body and that they would pay him. The family was upset about the situation, and they proceeded with the graveside service without a body. The family tried to reach defendant by telephone, but he did not respond until four days later. When Miller spoke to him, she was still upset because defendant still had the body. They agreed to meet at the cemetery the next day, that defendant would bring the body to be buried, and Miller would take ba ck the insurance policy and pay defendant by check. As agreed, defendant delivered the body and the insurance policy to the cemetery the next day, and Miller gave defendant a ch eck for $1,395, the amount remaining due on
the contract. The casket the defendant br ought the body in, however, did not appear to be the casket in the agreement. M iller testified that it looked lik e a cardboard box with felt on it. Because some family me mbers were getting angry, Mille r told defendant to leave, which he did. Miller knew there had to be a difference in the value of the casket ordered and the casket provided, but she did not know what that difference was. The value of the casket pr ovided by defendant was $395, which was $270 less than the value of the agreed-upon casket.8 Defendant testified that he did not prov ide the agreed-upon casket because he had not received payment and did not have money for the casket. Instead, he put the body in a “county cover,” which is a simple casket cove red with cloth. Defendant did not talk to the family at the cemetery abou t the casket discrepancy because he was told to leave.9 2. Analysis The trial court instructed the jury on theft by false pretenses. Because the evidence concerning th e theft from Owens was sufficient on a false pretenses theory, we need not discuss other possible theories. According to the instruction, which defe ndant does not challenge as inaccurate, the People must prove that: “1. The defendant knowingly and inten tionally deceived a property owner or the owner’s agent by false or fra udulent representation or pretense; “2. The defendant did so intending to persuade the owner or the owner’s agent to let the defendant or another person take possession and owners hip of the property; “AND “3. The owner or the owner’s agent let the defendant or another person take possession and ownership of th e property because the owner or the owner’s agent relied on the representation or pretense .” (CALCRIM No. 1804.) a. Contractual Relationship Defendant provides no authority for his co ntention that he cannot be guilty of theft by false pretenses from Miller because ther e was no contractual relationship between Miller and defendant. The failure to c ite authority forfeits the contention. ( People v. Stanley (1995) 10 Cal.4th 764, 793 [failure to cite authority waives appellate review of issue].) In any event, we kn ow of no such authority. If defendant took Miller’s money by false pretenses, we see no need for a contractual relationship. b. Intent at the Time Contract Signed Defendant argues that there is no evidence that he intended to take the money by false pretenses when he entere d into the contract with Miller’s nephew. We need not consider this argument because there was suffi cient evidence that defendant intended to10 take the money by false pretenses when he later took the check from Miller, as we discuss next. c. Victim’s Knowledge Defendant argues that there is insuffici ent evidence that he committed theft by false pretenses when he took the check fro m Miller at the cemetery. We disagree. Defendant admits that he delivered a ca sket that was worth $270 less than the agreed-upon casket. Also, defendant accepte d a check for the full agreed-upon amount. He claims, however, that doing so was not a fa lse pretense or a misrepresentation because Miller knew “it was a different and cheaper ca sket when [defendant ] delivered the body in the casket.” While there can be no doubt that Miller knew it was a different casket, there is no evidence in the record that Miller knew it wa s worth $270 less than the agreed-upon casket. Therefore, defendant’s substitution of the cheaper casket and his acceptance of the amount that included the more expensive casket was evidence from which the jury could infer that he misrepresented to Miller th at he was giving her a casket worth the higher amount, $665 . He did not tell Miller the delivered casket was worth less, and he did not offer to reduce the pric e that included the mo re expensive casket. The only authority defendant cites for his argument that he did not take the money from Miller by false pretenses is People v. Williams (2013) 57 Cal.4th 776, at page 787, which does nothing more th an recite the elements of theft by false pretenses. We conclude that the ev idence was sufficient that: (1) defendant knowingly and intentionally deceived M iller by false or fraudulent representation or pretense; (2) defendant did so intending to persuade Miller to give him the check for the full amount agreed on; and (3) Miller let defenda nt take the check b ecause she relied on defendant’s implication that he was giving her the full value agre ed on. The evidence was therefore sufficient to sust ain the conviction for theft by false pretenses in count 7.11 II Sentence for Petty Theft Defendant contends, and the Attorney General agrees, th at the trial court imposed an unauthorized senten ce for count 7, misdemeanor petty theft. The maximum jail time for petty theft under Penal Code section 490 is six months. The trial court, however, imposed a concurrent one-year jail term. Si nce the sentence is unauthorized, we must correct it to six months. ( People v. Scott (1994) 9 Cal.4th 331, 354.) DISPOSITION The term imposed for count 7 is modified to a concurrent six months. As modified, the judgment is affirmed. The tria l court is directed to prepare an amended abstract of judgment and to send it to the Department of Correcti ons and Rehabilitation.

NICHOLSON , Acting P. J.

We concur:

BUTZ , J.

MURRAY , J.