People v. Moore

• Decision Date: 14 November 1997
• Docket Number: No. F025271,F025271
• Citation: 69 Cal.Rptr.2d 56,59 Cal.App.4th 168
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8669, 97 Daily Journal D.A.R. 14,039 The PEOPLE, Plaintiff and Respondent, v. Donald Evans MOORE, Defendant and Appellant.

Page 56

69 Cal.Rptr.2d 56

59 Cal.App.4th 168, 97 Cal. Daily Op. Serv. 8669,

97 Daily Journal D.A.R. 14,039

The PEOPLE, Plaintiff and Respondent, v. Donald Evans MOORE, Defendant and Appellant.

No. F025271.

Court of Appeal, Fifth District, California.

Nov. 14, 1997.

Certified for Partial Publication. ^*

As Modified Dec. 18, 1997.

Karen L. Landau, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Harry Joseph Colombo and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, Presiding Justice.

Appellant Donald Evans Moore stands convicted, following a jury trial, of conspiracy to misappropriate public funds (PEN.CODE, §§ 182¹, subd. (a)(1); 424, subd. 1; count 1), conspiracy to obtain money by false pretenses (§ 182, subd. (a)(4); count 2), and grand theft by false pretenses (§ 487, subd. (a); count 3). The jury further found that the funds taken exceeded $150,000 within the provisions of section 12022.6, subdivision (b), and $100,000 within the provisions of section 1203.045, subdivision (a). Following denial of his motion for new trial, appellant was sentenced to a total unstayed term of five years in prison and ordered to pay a $200 restitution fine. After a further hearing, he was ordered to pay restitution in the amount of $200,118.63. This timely appeal followed.

FACTS

Prior to January 1994, Dennis Stowe was the superintendent of the Lost Hills Water District (LHWD or the district). His responsibilities encompassed repairing and maintaining the system, including purchasing equipment and arranging for its installation. As of November 1993, Danny Howard was a maintenance foreman with the district. His duties included overseeing employees who were doing repair work and operations. Stowe was Howard's immediate supervisor; Phillip Nixon, manager of LHWD, was Stowe's immediate supervisor.

In November 1993, Verta Rolin, who worked in LHWD's business office, brought it to Howard's attention that certain materials may not have been delivered. She showed him some invoices, after which Howard checked to see if the items had been installed. He then contacted Nixon. The two discussed the invoices, which were from SMS Industrial Supplies and were for items that would be used in the repair of the LHWD system. ² Howard told Nixon that the merchandise was not there and that something suspicious was going on.

Nixon examined the district's records of past expenditures. Generally, the invoices bore a listing of the location of the items so that LHWD would know where the work was being done. The invoices would come in from the businesses from which the supplies were being purchased. Stowe would receive the invoices, note where the repairs were being performed, sign the invoices to show that the goods were received, and then route them to the administrative office in Bakersfield. Nixon would review the invoices, which would then go to accounts payable. Checks would be prepared; the board of directors would vote on the payments at their monthly meeting; and checks would then be issued. Based on the invoices received, checks were issued to SMS and D.E. Moore between January 1991 and December 1993. Most of these invoices were hand-written, although a few were computer-generated. Appellant owned both businesses.

Nixon later met with Howard and looked at several different locations that were noted on the invoices. He did this to see if the items listed on the invoices had been received at a particular site. The materials shown on the invoices were not there. During 1991 through 1993, if a canal gate or canal turnout had been repaired in the district, Howard would have been involved. Everything had to go through Stowe to be ordered; Howard would have been the one to request such an order. It would have been impossible for Stowe to have replaced four or five canal gates without Howard's knowledge. Howard did not ask Stowe to replace canal gates as shown on the invoices, nor were any in need of replacement.

Where canal gates were involved, the sites in question all had Waterman gates and the invoices bore Waterman's part codes. Waterman Industries is a wholesaler that sells mainly to distributors. It had no records of selling anything to SMS or D.E. Moore between December 1990 and December 1993. However, it did have records showing the sale of canal gates to Courtesy Pneumatic. LHWD had purchased canal gates from Courtesy Pneumatic in the past. Howard never saw any sort of canal gate or Waterman parts delivered to the district by appellant.

Some of the items supposedly sold to LHWD were very heavy and would have required a large truck to move and a forklift to unload. ³ Verta Rolin only saw appellant deliver small items that he carried in his pickup truck. She never saw him with a larger truck. Appellant would have been unable to haul Waterman canal gate parts in his truck. Howard never saw him deliver many of the items listed on the invoices. However, Howard admitted that he did not have knowledge of everything that was delivered to the district.

Kenneth Sawtelle worked for appellant at appellant's business, SMS Industrial and Welding Supplies. The business carried agricultural supplies with an emphasis on welding. It never sold canal gates. Sawtelle set up computerized inventory and accounts receivable and payable systems for the business. All invoices were printed out from the computer. Even assuming a customer's order was written up by hand, it would be entered into the computer as an invoice and printed up. ⁴

At some point, appellant wanted Sawtelle to fill out, by hand, blank invoice forms. Sawtelle observed other people in the office filling out the forms. The idea was to copy some part numbers onto the forms from some type of list. ⁵ Sawtelle refused to participate and left the company in early 1991.

From late 1991 or early 1992, Laurie Hooker was involved with SMS Industrial Lime Sales. From 1992 to March of 1993, she was also employed by Hooker Brothers Automotive, which was owned by her uncles and father. She was the bookkeeper/secretary. From 1992 through March of 1993, Hooker Brothers shared space with appellant, whose business was SMS Industrial and Welding Supplies. Laurie Hooker never worked for that business. In March of 1993, Hooker Brothers moved to a different location. Appellant's business also moved to the new location.

Laurie Hooker owned SMS Industrial Lime Sales, which did marketing and distribution of lime. Larry Hooker (her father), Jim Hooker (her uncle) and appellant were the other officers of the corporation. Appellant was the chief executive officer or president, but Laurie Hooker owned all of the company's stock at the time. Laurie Hooker drew a salary of $300 per month from the company. That was her only compensation. According to Larry Hooker, SMS Industrial Lime Sales did not show much profit over the three years in question. Larry Hooker had taken about $10,000 in draw since 1992, and did not know the gross volume of business for the company. He was unaware in 1992 or 1993 that approximately $85,000 was written in checks to Dennis Stowe and James Van Pelt on SMS Industrial Lime Sales checking accounts. However, it was not his responsibility to pay the bills, so he did not know what jobs the checks may have been for.

Laurie Hooker signed checks for SMS Industrial Lime Sales. Appellant would bring her blank checks to sign, telling her that he needed to pay some bills. One of the checks--which appellant filled out after she signed it--was for $25,000 and was made payable to Jim Van Pelt. She did not know why the check was written. Another check, which appellant again filled out after she signed it, was made out to Dennis Stowe in the amount of $5,000. Stowe was not an employee of SMS Industrial Lime Sales, nor, to her knowledge, did the company ever do any business with him. ⁶ Appellant asked her to sign the check. A number of other checks were made out to Stowe by appellant or his wife and were signed by appellant and his wife. In addition, there were occasions on which Laurie Hooker made a deposit and then had a cashier's check made out to Dennis Stowe. Appellant directed her to do this. On one occasion, Laurie Hooker personally wrote a check to Stowe for $17,000 on SMS Industrial Lime Sales' business account. Appellant asked her to. She did not question him about it. In each instance when appellant brought blank checks to be signed, he would tell Laurie Hooker that he needed to pay some bills.

James Van Pelt ran a check cashing operation in which he charged one dollar per hundred to cash a check. He had known Stowe for several years and had met appellant a couple of times. On one occasion, appellant wrote a check to Van Pelt for $10,000. Stowe brought Van Pelt the check, and Van Pelt cashed it because Stowe asked him to. On another occasion, Van Pelt cashed a $25,000 check, made out to himself, for Stowe. On both occasions, Van Pelt charged his normal fee to cash the checks. The remainder of the money went to Stowe.

Detective McBride analyzed the invoices submitted to LHWD by appellant. SMS Industrial Supplies and D.E. Moore submitted a total of approximately $344,000 in invoices over a three-year period. McBride also analyzed the checks issued by LHWD to SMS Industrial Supplies and D.E. Moore from 1991 to 1993. Payments totaled $344,293.23. Of this amount, $114,441.62 was deposited directly into the account of SMS Industrial Lime Sales. Of the amount paid to SMS Industrial Supplies and D.E. Moore, only $4,442.36 was on computer-generated invoices. The rest was on hand-written invoices. Of the bank accounts McBride reconstructed during his investigation, checks totaling $155,190 were made payable to Dennis Stowe or James Van Pelt.

DISCUSSION

I.

Failure to Give...