People v. Stanfill, A082782.

Decision Date09 December 1999
Docket NumberNo. A082782.,A082782.
Citation90 Cal.Rptr.2d 885,76 Cal.App.4th 1137
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Jimmy Wayne STANFILL, Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Joan Killeen, Supervising Deputy Attorney General, Frances Marie Dogan, Deputy Attorney General, for Plaintiff and Respondent.

LAMBDEN, J.

Charged with one felony count of embezzlement by a public officer (Pen.Code, § 504; all undesignated references are to that code), Jimmy Wayne Stanfill was tried by a jury that acquitted him of that crime but found him guilty of the misdemeanor equivalent (§§ 504, 514), as a lesser offense. Granted three years probation conditioned on jail time and his payment of $9,339.05 in restitution, Stanfill appeals claiming misinstruction on the statute of limitations and improper restitution. We will reverse for instructional error.

Background

The trial ran three weeks, involved three dozen witnesses and produced a reporter's transcript topping 2,200 pages. While the parties summarize the testimony in detail, we find the issues adequately framed by a broader overview.

The People showed irregularities in Stanfill's handling of cash and property during his tenure as airport manager for Gnoss Field, Marin County Airport. He had held the job since 1984 and was an employee of the county Department of Public Works (DPW). The prosecution theory was that he began embezzling — keeping cash and obtaining autobody repair tools for his own use — sometime after a wage assignment for child support started in late 1993, reducing his net biweekly salary from $1,144 to between $617 and $944.

Stanfill accepted, insisted on or pressured cash payments from some tenants for hangar rentals, deposits and the like, and he kept cash (up to $1,000) in an envelope in his desk. Cash-paying tenants included Dave Nichols (a good friend of Stanfill's), aircraft mechanic David Upchurch, and Rick Palumbo.

Stanfill also kept airport tools and equipment in places like his home garage and Dave Nichols's hangar. Most of this property was well suited to his personal hobby of autobody repair, and some of it had little or no use in the operation of the airport. Stanfill had general authority to make purchases under $1,000 without prior approval from his supervisor, and such orders increased through the years 1993 to 1996. At the same time, people he employed to do work around the airport encountered a lack of tools, resistance from Stanfill in purchasing them, and a need to borrow tools from the tenants. This was noted by probationers Stuart Ludlow and Eric Johnson, who as part of an adult offender work program did community service work under Stanfill's supervision, including the construction of a wind direction indicator called the tetrahedron. After the tetrahedron was done, Johnson opened a UPS-delivered air shears, a tool which could have been useful to them except that they had no air compressor.

Ludlow owned a computer and graphic design business, and at Stanfill's request, he submitted a bid in September 1995 for a new computer system for the airport. The bid exceeded $5,000, and after it was approved, Ludlow installed and set it up and provided training for it. Stanfill then asked Ludlow to buy a joystick and to provide a bill for manuals instead, since he was going to submit the receipt to the county. Ludlow had reservations about this but did as asked after seeking advice from others. Stanfill used the joystick for games on the computer.

Mike Lockwood was hired by Stanfill as his assistant manager and began work in February 1995. He worked on the tetrahedron project, among other things noted the lack of tools; saw the cash Stanfill kept on hand ($1,100 in $20 bills); and ultimately, during a vacation Stanfill took to a Wisconsin air show in late July and early August 1996, voiced his suspicions of embezzlement to Stanfill's supervisors at DPW.

Several things sparked those suspicions. Lockwood had known of the cash in the desk, had seen Stanfill use some to pay for pizza, found about $200 missing just before the vacation and then found it entirely gone after Stanfill left. Stanfill had also left him instructions to open an expected shipment of runway lights but not to open boxes from other vendors. Lockwood opened certain deliveries from UPS and saw a chain hoist, a bead roller kit, some hydraulic equipment and small hand tools. He knew Stanfill did auto work and kept automotive parts in a tractor shed and a space between two hangars. He had access to the computer but lost it when the new one was installed because Stanfill kept it locked. Ludlow had also come to Lockwood for advice when Stanfill asked him to falsify the joystick receipt. During the vacation, Lockwood spoke with DPW accountant David Uribe and mentioned the lack of tools; Uribe listed various tools that should have been at the airport (but were not). When a tenant came in during the vacation to generate from the computer a list of other airport tenants for an open house, it turned out that Dave Nichols and Rick Palumbo (two cash payers) were not on the list.

Lockwood met twice with DPW people, who began looking at records during the vacation. Stanfill returned on Monday, August 5th, and was called in for a meeting the next day with his superiors, Mike Sadjadi and Richard Carlsen, the director and assistant director of DPW. Instead of reporting immediately to DPW as directed, he went to his airport office and was seen working there at the computer on some sort of accounting or tenant documentation. Summoned by phone to DPW, Lockwood came with cash in hand — over $1,400 which he said represented cash hangar-rental payments from Nichols for the past year, plus other cash payments. He explained that tools and equipment were at his home because his truck had broken down after he picked them up. Sadjadi placed him on paid administrative leave, and employees were dispatched to pick up what proved to be a truck full of county equipment from Stanfill's home and more at Nichols's hangar (much of it in original packaging). (Nichols's hangar had been searched by the FBI in May 1995 in connection with a drug investigation.)

There followed further investigation and two more interviews of Stanfill by DPW before he was fired, on September 12th. During the interviews, Stanfill gave varying and sometimes inconsistent accounts. In the second interview, for example, he said $450 in cash had been stolen from his desk in a May 1995 "robbery" (never reported) and that he replaced it with his own funds. He also said he kept Nichols's cash separate in case he needed to track it for the FBI investigation.

The DPW investigation continued with inventories, auditing and invoice examinations. Some recently ordered property was returned for refunds. An investigation by the county sheriff produced further interviews with Stanfill and, ultimately, this prosecution.

At trial, the defense painted Lockwood as a drug user who could not treat tools properly, who experienced friction with Stanfill, and who reported him as a defensive move to save his own job. Stanfill testified. He denied all wrongdoing, pointed to lack of regulations for handling county property, and presented character witnesses.

The jury acquitted on the felony charge and returned a verdict of guilty for the misdemeanor lesser offense of embezzling property of a value not exceeding $400. This connoted at least reasonable doubt by all jurors that Stanfill misappropriated any public funds (part I, post).

In the face of a presentence report recommending restitution exceeding $400, the parties proceeded to a contested restitution hearing. The People presented evidence that an outside audit of the airport records cost the county $8,000 and had disclosed missing items (not recovered from Stanfill) in an aggregate value of $1,339.05. Over defense argument, the court ruled to impose restitution of both sums.

The court suspended imposition of sentence and placed Stanfill on three years' probation with a four-month jail term, the sentence to become conditional on other terms upon payment of the aggregate $9,339.05 restitution.

Discussion
I. Statute of Limitations

Stanfill contends that misinstruction on the statute of limitations applicable to the lesser misdemeanor offense of which the jury found him guilty deprived him of his state and federal constitutional rights to a fair trial and due process. The People respond that there was no error or that any error was harmless. This precise issue was evidently over-looked below by both the parties and the court.1

A. The Instruction

The statute was at issue below but only for the crime as charged, that is, as a felony. Section 504 provides that every county officer or servant (i.e., employee) "who fraudulently appropriates to any use or purpose not in the due and lawful execution of his trust, any property which he has in his possession or under his control by virtue of his trust, or secretes it with a fraudulent intent to appropriate it to such use or purpose, is guilty of embezzlement." Felony or misdemeanor status is not specified there but in section 514, which provides in part: "Every person guilty of embezzlement is punishable in the manner prescribed for theft of property of the value or kind embezzled; ... if the embezzlement or defalcation is of the public funds of ... any county ... within this state, the offense is a felony, and is punishable by imprisonment in the state prison...." The theft provisions at the time of this offense, as relevant here, made felony status dependent on the amount of money or value of property being over $400 (...

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