People v. Kronemyer

• Court: California Court of Appeals
• Writing for the Court: WORK
• Citation: 189 Cal.App.3d 314,234 Cal.Rptr. 442
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert E. KRONEMYER, Defendant and Appellant. D000062.
• Decision Date: 11 February 1987

Page 442

234 Cal.Rptr. 442 189 Cal.App.3d 314 The PEOPLE, Plaintiff and Respondent,
v.
Robert E. KRONEMYER, Defendant and Appellant. D000062. Court of Appeal, Fourth District, Division 1, California. Feb. 11, 1987.
As Modified March 5, 1987.
Review Denied May 14, 1987.

[189 Cal.App.3d 324]

Page 447

Ball, Hunt, Hart, Brown & Baerwitz, Anthony Murray and Donn Dimichele, Los Angeles, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Keith I. Motley, Robert M. Foster and M. Howard Wayne, Deputy Attys. Gen., for plaintiff and respondent.

WORK, Associate Justice.

Attorney Robert Kronemyer appeals a judgment convicting him of four counts of perjury (PEN.CODE, § 118)¹ and eleven counts of grand theft (§ 487, subd. 1), with true findings two thefts exceeded $25,000 (§ 12022.6, subd. (a)), and two others exceeded $100,000 (§ 12022.6, subd. (b)). After making full restitution to the estate of the client from whom he was found to have stolen more than $936,000, he was sentenced to prison for eight years, and fined $80,000. ²

Kronemyer's convictions arose from acts he committed while the attorney and conservator for an elderly man, Dr. Joshua L. Baily, Jr. The theft charges concerned municipal bonds, savings accounts and money Kronemyer allegedly embezzled from Baily during 1977. The perjury charges arose from conservatorship accountings Kronemyer filed in 1977 and 1978 which omitted the stolen property. The People argued Baily became senile after an illness in June 1977, enabling Kronemyer to steal the assets and conceal the theft by omitting the property from the conservatorship accountings. Kronemyer claims Baily gave him the property in consideration for lifetime care, a condition he claims to have fulfilled. His defense to the perjury charges was that he did not interpret the estate accounting to require including Baily's gifts to him which were complete before the conservatorship was established.

With the exception of one count, Kronemyer does not argue that substantial evidence does not support the judgment. Rather, he contends that because the record provides substantial evidence in support of acquittal, delaying prosecution until after Baily died precluded his corroborating Kronemyer at trial. This procedure, coupled with numerous trial court [189 Cal.App.3d 325] errors, allegedly deprived him of a fair trial. He further claims a multitude of errors in pretrial and voir dire rulings, evidentiary rulings, in jury instructions, and errors in sentencing compel reversal.

For the reasons which follow, we conclude there is no statute of limitations bar to prosecuting any of the crimes charged. We affirm the four convictions for perjury and one count of grand theft based on the larceny of funds from Dr. Baily's four bank accounts. We reverse eight convictions for theft of property entrusted to Kronemyer, because of a material defect in the instruction defining embezzlement. We find no other reversible error.

FACTUAL BACKGROUND

The posture of this appeal requires we detail the extensive and convoluted history of the Baily-Kronemyer relationship.

Before becoming a client of Kronemyer, Dr. Joshua Baily was an affluent, but reticent, elderly man, who insisted his attorney, Kerber Gibbs, pay his taxes and most of his personal bills. Gibbs and his wife were also social friends of Baily and his wife. In 1963, the Bailys hired Lishie Kelly as a housekeeper. When Mrs. Baily died two years later, the normally reserved Baily withdrew further from society. Kelly's duties included driving him around San Diego. During the 1970's Kelly routinely drove him to various financial institutions where he maintained accounts, as well as to his stock broker and attorney.

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In 1971, Gibbs arranged for Kronemyer to represent Baily and assume the same basic attorney-role that Gibbs had performed. Baily began keeping certain municipal bonds in Kronemyer's office for safe keeping. In 1972 when Baily took a trip out of state, he gave Kronemyer power of attorney over one savings account to pay his June income tax.

Before retaining Kronemyer, Baily had written a holographic will and codicils generally designed to fund publication of his proposed scientific treatise dedicated to the proper naming and classification of all mollusks and brachiopods on America's West Coast. This will provided for printing 3,000 hard-bound sets of his work, to be distributed free to museums, universities and similar institutions at an estimated cost of between $800,000 and a million dollars, substantially the bulk of Baily's estate. At some point, Baily told Kronemyer his work was becoming obsolete because of modern technology. He then executed further codicils increasing personal bequests to his niece-in-law, Kamilla Baily, and her children who had moved to the San Diego area after his wife died, and his niece, Ellen Brown and her children who lived in Pennsylvania. Later in 1972, he executed a fourth codicil [189 Cal.App.3d 326] dealing with a trust for his brother naming Kronemyer executor. A fifth codicil raised Kamilla's bequest to $10,000 and her childrens' to $5,000 each. In late 1976, Baily executed a seventh codicil to equalize the bequests to Ellen's and Kamilla's respective families.

Baily lived across the street from Dr. Edwin Corwin, and became his patient in November 1976. On June 4, 1977, Corwin found Baily lethargic and noncommunicative, and admitted him to a hospital. While Baily was hospitalized, Kronemyer took possession of all Baily's savings account passbooks and other financial documents, telling Kelly he wanted to hold them in a safe place.

After Baily was released in mid-June, Corwin found Baily's mental condition had deteriorated markedly; he was confused, lethargic, reluctant to communicate and forgetful. Corwin diagnosed senile dementia. The previously alert Baily did not know the president's name and was usually unaware of the day of the week. Corwin believed Baily never gained his normal mental state; had lost the capacity to comprehend or evaluate complicated legal documents or recall what he owned; and could no longer understand the meaning of a codicil to a will, a deed of gift or a tax return. Although Baily's memory for recent events improved by August 1977, he soon permanently regressed. The jury also heard three defense-called physicians, including Dr. Frederick De La Vega (the admitting and attending physician at Scripps), Dr. Wayne Monsees (an ophthalmologist), and Dr. John Robuck (a psychiatrist). De La Vega observed nothing to question Baily's mental functioning while he was in the hospital in 1977. Monsees testified that during a January 1978 eye examination he observed no impaired mental function. Finally, Dr. Robuck challenged Corwin's diagnosis. He concluded Baily suffered from a mood disorder known as seudodementia, caused by a major depressive episode which can produce impaired memory and difficulty in thinking.

After returning home from the hospital, Baily was attended by private nurses. Several testified he was generally confused and disoriented; would forget he had just eaten or showered; would forget why he summoned the nurse; would hallucinate; had a faulty memory; did not know the day, month or year; and told one of them he had signed documents for Kronemyer without knowing what they were.

Several of Baily's friends and relatives who saw him after his illness, noticed a significant deterioration in his mental and physical faculties. Cumulatively, they characterized him as being frightened, clinging and child-like; forgetful; unable to concentrate, read or write; very affectionate; senile; and confused. Kamilla, who first met Baily in 1949, had a close relationship with him and his wife. Before his illness, she found him brilliant [189 Cal.App.3d 327] and very formal with few displays of affection to

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people. After his release from the hospital, he significantly declined in mental function, being unable to remember the people who had visited him; becoming demonstrative in his conduct; appearing child-like in the way he related to people; and incapable of understanding a legal document.

After Baily's illness, Kronemyer became increasingly involved with Baily's existence. He visited him regularly and placed a photograph of his family in Baily's residence and later put a framed photograph of himself and his family in Baily's bedroom. He assumed all decision-making for Baily's affairs, determining how much would be spent for food and nurses and writing the checks on Baily's account to pay the bills. Kronemyer was angry when Kelly told him she had given Baily's safe deposit box key to Kamilla Baily.

After his hospitalization, Baily told Kelly he would increase his bequest to her and directed her to call Kronemyer to prepare the documents. When he failed to come, Baily ordered her to call him again. When she complied she was admonished by Kronemyer not to talk to Baily about money. Kronemyer, came to the Baily residence on July 5, 1977, and had Baily execute an eighth codicil. On July 25, Kronemyer again went to the Baily residence where he summoned Kelly into the bedroom and told her he had prepared a codicil to Baily's will. Baily signed the codicil which Kronemyer covered with a sheet of paper so only the signature line was showing. This document, the ninth codicil, limited the bequest to the San Diego Natural History Museum for publishing Baily's manuscript to $50,000 and divided his residual estate into six parts, one part to go to Kronemyer, identified in the codicil as Baily's close friend for 25 years whom he regarded as a son.

THE OFFENSES

Grand Theft of Baily's Savings Accounts (Counts Five Through Eight) and Municipal Bonds (Counts Eleven through Thirteen)

Counts five through eight and eleven through thirteen are based on Kronemyer's sale of certain of Baily's municipal bonds and closure of six of Baily's savings accounts. Kronemyer obtained purported...