PEOPLE v. DEPTOWICZ

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Leonora L. DEPTOWICZ, Defendant and Appellant.

No. B118828.

Decided: February 03, 1999

Kevin C. McLean, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, and Richard B. Cullather, Deputy Attorney General, for Plaintiff and Respondent.

Defendant timely appeals from the judgment of conviction entered on November 26, 1997.

PROCEDURAL AND FACTUAL BACKGROUND

A cashier's check in the sum of $88,925.74, dated May 3, 1994, made out to Leonora L. Deptowicz (hereinafter “appellant”) by John Alton was deposited that same date to her personal savings and checking accounts in the Bank of America.   A second check in the sum of $21,000 dated November 17, 1993, was deposited to appellant's checking account.   As a result of these transactions, appellant was charged by information on July 11, 1996, with violations of the law.

On June 23, 1997, a jury found appellant guilty of theft by a caretaker from an elder, in violation of Penal Code section 368, subdivision (c),1 and guilty of grand theft of personal property, in violation of section 487, subdivision (a).   In addition, the jury found to be true as to each of these counts the allegation that the taking was greater than $50,000 within the meaning of section 12022.6, subdivision (a)(1).   Appellant was denied probation and was sentenced to state prison for three years on the section 368 conviction, the court striking the one year sentence for the taking.   As to the section 487 conviction, appellant was sentenced to two years plus one year for the taking, which sentence was suspended.   In addition, appellant was ordered to make restitution to the estate of John Alton in the sum of $109,925.74 with credit against that sum for the sale of a home in her name.   Appellant was ordered to pay a restitution fine in the sum of $200.   Appellant was credited appropriately with 231 days for time served in custody.

The prosecution presented evidence that John Alton, at the age of 88, “married” 2 Billie Weinstock in 1989.   They lived together from 1988 to the date of her death in late January 1993.   According to Darren Weinstock, Alton was, at the time of his marriage, a lively, intellectual man who swam, played chess and was “ a lot of fun.”   He was also described as “charming,” “witty” and “frugal.”   In 1991, when Billie Weinstock's health began to decline, appellant and another person were hired to care for her.   At about the same time, John Alton's physical and mental health began to decline.   He became forgetful and less active.

At Billie Weinstock's funeral, Alton fell and broke his hip.   He underwent hip replacement surgery and then moved into an assisted living retirement facility.   It was noticed that Alton became slower, more forgetful and often repeated himself.   Appellant was hired to help to care for Alton, who continued to deteriorate mentally.   In August 1993, at appellant's instance, Alton moved across the street from his care facility into a very small apartment.   He was not well cared for in that apartment, no longer having linen or maid service and with no one to provide his meals.

In December 1994, Darren Weinstock, Billie's grandson, was told by Alton that his checks were bouncing and he did not know the reason why.   Darren found a six-month old bank statement of Alton's which indicated he had $120,000 in the bank.   Upon investigation by Darren and the bank, it was determined that Alton had purchased two cashier's checks in the sum of $88,925.74.   The first check, dated April 19, 1994, and bearing No. 16581233, was from funds in his City National Bank account;  it was made out to John Alton.   The second check, dated May 3, 1994, and bearing No. 16581359, was made in exchange for the first check.   The address on the bank account had been changed in March of 1994 to that of appellant.   After this discovery, Darren caused Alton to be moved back to the retirement facility and told appellant not to see Alton any more.

In January 1995, Los Angeles County Deputy Sheriff Mary Parker was assigned the task of investigating the case.   She testified that when she first met him in January, Alton was disheveled and seemed somewhat confused about having lost his money.   He did not know where his money had gone and was surprised and upset to know that appellant was in possession of it.   She next met with Alton in March 1995.   At that time, he was more disheveled and did not remember her or that all of his money was gone.   He had no recollection of closing out his account.   In July 1995, when Deputy Parker next saw Alton, he was more confused, did not remember Deputy Parker or know that his money had been taken.   When he was told that appellant had his money, he said she was not supposed to have it.   Deputy Parker last saw Alton in May 1996.   At that time, he was bedridden and very confused.   She determined that there were many checks drawn on Alton's account and cashed by appellant which came to a total far in excess of services which appellant rendered.   In Parker's seven years of experience, it is typical in elder fraud cases for a caretaker to charge excessive amounts for care and to isolate the elder in order to make him or her more dependent on the caretaker.

A neuropsychologist, Dr. Paul Satz, an expert in the study of brain behavior, testified for the prosecution.   He interviewed John Alton in January 1996, when he was 95 years old and suffering from Alzheimer's disease.   The doctor diagnosed him as “charming, lovely, social, visually animated, he was jovial, but demented as all get out.   He was lost.   He was, unfortunately, in another world.”   He had profound impairment in all domains of his cognition.   He was demented, meaning that he had gross impairment of his ability to solve problems, to remember, to learn, to see spatial relationships, to think, to evaluate, to consent, or to know what was going on in his life.

There can be periods of time when the victim of Alzheimer's does have the ability to understand what is going on.   The doctor testified that Alzheimer's disease is a slow, insidious progression downhill.   Dr. Satz and Dr. Donebrum, a post-doctoral fellow at the Neuropsychiatric Institute and Hospital at the UCLA School of Medicine, administered to Alton two diagnostic tests.   They were the mini-mental state examination and the dementia rating scale.   They assessed his memory and his problem-solving ability.   Dr. Satz concluded that Alton was almost at “․ end stage, meaning that he couldn't get much worse․”  Using backward progression analysis, the doctor concluded that as far back as 1993, Alton was demented, or at best, had severe cognitive impairment.   Accordingly, it is exceedingly doubtful that in March 1994, he would have been able to consent to and to be fully aware of the nature of the act of transferring his funds.   At the time of the doctor's examination, Alton was physically able to write out a check at the doctor's request.

The defense presented its countervailing evidence.   Dr. Victor Warren Henderson, a neurologist, professor at the University of Southern California, and specialist in the study of Alzheimer's disease, testified that in 1993, Alton was not demented.   This opinion was based upon the doctor's examination of Alton's 1993 hospital records, generated when he had undergone hip surgery, and the notes of Alton's internist.   These records did not contain any comment regarding Alton's mental status.   In the doctor's opinion, Alton's hearing disability may have affected his performance on tests given to him to determine the level of his dementia.   The doctor did not examine John Alton and did not speak with any persons who knew him in 1992 through 1994.

Other witnesses for the appellant testified that Alton appeared to understand everything that was going on;  that he wanted to live with appellant and her family;  that he did not like the Weinstocks because they seemed only interested in money;  that he was not forgetful, nor did he appear confused.   There was testimony that he traveled to Las Vegas, Vienna, and Israel;  that he moved out of the retirement facility because he was not happy there;  that after he moved into the apartment, he asked appellant to write checks for the rent;  that Alton changed the address on his bank account to appellant's address because he knew he would be moving in with her family.   Appellant testified that she often advanced money for Alton's expenses and he reimbursed her by check.   She stated that Alton gave her a check for $21,000 to give one-half to her children and the other half to purchase a car.   The check for $88,925.74 was given to her by Alton for the purchase of a house which, in fact, she bought.   She stated that when she attempted to move Alton into the house in January of 1995, she could not find him.

CONTENTIONS OF THE PARTIES

Appellant argues that there was no substantial evidence that the transfer of money from Alton to appellant was made without the consent of Alton.   Dr. Katz's opinion was based on sheer speculation.

Respondent asserts that the evidence was more than sufficient to support the conviction.   In addition, respondent argues that the judgment of conviction must be modified to impose (1) a parole revocation fine pursuant to section 1202.45;  (2) a state penalty assessment pursuant to section 1464;  and (3) a county penalty assessment pursuant to Government Code section 76000.

DISCUSSION

 Appellant contends that her conviction is not supported by substantial evidence.   Appellant sets forth a summary of the evidence presented by the defense to contravene the allegations and evidence of the prosecution.   We have, as we are required to do, reviewed the entire record in the light most favorable to the prosecution and have assumed the existence of every fact the trier of fact reasonably could deduce from the evidence.   We conclude that a rational trier of fact could have determined that the evidence presented was sufficient to establish the essential elements of the crimes charged by proof beyond a reasonable doubt.  (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560;  People v. Hernandez (1988) 47 Cal.3d 315, 345, 253 Cal.Rptr. 199, 763 P.2d 1289;  People v. Johnson (1980) 26 Cal.3d 557, 576-577, 162 Cal.Rptr. 431, 606 P.2d 738;  People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.)

 The standard for review of the sufficiency of the evidence to support a criminal conviction is a determination of whether the evidence in the record reasonably supports a finding of guilt beyond a reasonable doubt.   This court may not substitute its view of the evidence in place of the view of the jury.  (People v. Bean (1988) 46 Cal.3d 919, 933, 251 Cal.Rptr. 467, 760 P.2d 996.)   The test on appeal requires that the evidence be substantial.   It is substantial if it is “ ‘of ponderable legal significance ․ reasonable in nature, credible, and of solid value․’ ”  (People v. Bassett (1968) 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777.)   It is the sole province of the jury or trial judge to determine the credibility of witnesses.  (People v. Barnes (1986) 42 Cal.3d 284, 303, 228 Cal.Rptr. 228, 721 P.2d 110.)

 Applying the stated standard, we conclude for the reasons which follow that there is substantial evidence which supports beyond a reasonable doubt the finding of the jury.   First, Dr. Satz, an expert in the field of dementia, offered his expert opinion, predicated upon an examination of and testing of Alton that it was probable that at the time Alton signed his money over to appellant, he was suffering from dementia to a degree that he did not know what he was doing.   It was within the province of the jury to accept this opinion and to reject the contradictory opinion of Dr. Henderson.   Second, Alton executed checks for the total sum of all the money he had, approximately $110,000, to a person who was not a relative or long time friend, but was simply someone who recently had been hired to care for him.   By the execution of those checks, Alton left himself destitute of money to supply his daily needs.   Such behavior is out of character for a frugal man not bereft of his judgment.

Of equal significance was the testimony that Alton had no realization, until told, that appellant was in possession of his money and his statements several times that she was not supposed to have it.   Not to be overlooked is the fact that Alton began losing his ability to play chess and to remember things right after his partner died in January of 1993.   Finally, none of the money in appellant's possession was used for Alton's benefit.   The home that was purchased with his money never entertained his presence.   This evidence is, in our view, substantial and supportive of the judgment beyond doubt.

 We next address the matter of the mandatory restitution fine and penalty assessments.   The Attorney General points out that the trial court omitted imposing a mandatory restitution fine pursuant to section 1202.45.   That section requires that when the sentence includes a period of parole,3 there be imposed an additional fine in the same amount, which fine is to be suspended unless parole is revoked.   Appellant's state prison sentence of three years was subject to a period of parole.   Respondent Attorney General also argues that appellant is subject to mandatory penalty assessments pursuant to sections 1202.4, subdivision (a)(2), 1464, and Government Code section 76000.

 Respondent is correct.4  The trial court in this case omitted to impose these increments.   It is within our power to correct such an omission, inasmuch as the responsibility is jurisdictional.  (People v. Parker (1998) 67 Cal.App.4th 200, 202, 78 Cal.Rptr.2d 868;  People v. Martinez, supra, 65 Cal.App.4th at p. 1520, 77 Cal.Rptr.2d 492;  People v. Hong (1998) 64 Cal.App.4th 1071, 1084, 76 Cal.Rptr.2d 23.)   We decline to do so in this case.

 We unfortunately have seen all too many cases where the trial court has failed to impose the mandatory fine and the prosecutor has been silent.   It is our expectation that the matter will be raised in the trial court before we are asked to correct it.  “[Such] omissions are primarily the responsibility of the sentencing court, and of the prosecutor.   A prosecutor's [role] includes both obtaining a conviction consistent with justice, and assuring that a correct lawful sentence is imposed.   Prosecutors must take care to explicitly request all particulars of appropriate relief at sentencing hearings, to monitor minute orders and abstracts of judgment to make sure that sentences are recorded accurately and completely, and where they are not, to request the trial court to correct erroneous orders.”  (People v. Parker, supra, 67 Cal.App.4th at p. 203, 78 Cal.Rptr.2d 868.)   Following the lead of the Parker court, we do in this case, and shall in the future, generally decline to correct at the appellate level this type of error in judgments.

 To the extent that an omission results in an unauthorized sentence, it may be corrected at any time.  (People v. Scott (1994) 9 Cal.4th 331, 354, 36 Cal.Rptr.2d 627, 885 P.2d 1040;  People v. Serrato (1973) 9 Cal.3d 753, 763-765, 109 Cal.Rptr. 65, 512 P.2d 289, overruled on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1, 189 Cal.Rptr. 855, 659 P.2d 1144.) Prosecutors are quite capable of bringing to the attention of the trial court any jurisdictional sentencing omission.   The trial court, if alerted to an omission will, we are confident, faithfully perform its duty to ensure the rendition of a proper judgment.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   All further statutory references are to the Penal Code unless otherwise specified.

2.   Alton and Weinstock performed their own ceremony at home in the presence of friends.   There is no indication in the record that there was a registration of the “marriage.”

3.   A sentence imposed under section 1168 or section 1170 must include a period of parole, unless waived.  (§ 3000;  3 Witkin & Epstein, Cal.Criminal Law (3d ed.   1989) Punishment for Crimes, § 1734, p.2051.)

4.   Unless otherwise provided by statute, section 1464 provides for a state penalty assessment to be levied in the sum of $10 for every $10 (or fraction thereof) of any fine imposed on a convicted defendant, and Government Code section 76000 provides for a county penalty assessment that must be levied by the trial court in the sum of $7 for every $10 (or fraction thereof) of every fine.   Thus, it is required that as to every fine imposed for a criminal conviction, state and county assessments of approximately 170 percent of the amount of the fine be ordered by the trial court.  (See, e.g., People v. Martinez (1998) 65 Cal.App.4th 1511, 1521-1522, 77 Cal.Rptr.2d 492;  People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1695, 44 Cal.Rptr.2d 575.)

DUNN, J.* FN* Judge of the Municipal Court for the Long Beach Judicial District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

SPENCER, P.J., and ORTEGA, J., concur.