People v. Wooten

Decision Date07 May 1996
Docket NumberNo. B089797,B089797
Citation52 Cal.Rptr.2d 765,44 Cal.App.4th 1834
CourtCalifornia Court of Appeals Court of Appeals
Parties, 96 Cal. Daily Op. Serv. 3270, 96 Daily Journal D.A.R. 5321 The PEOPLE, Plaintiff and Respondent, v. Michael WOOTEN, Defendant and Appellant.

Diane M. Matsinger, Santa Barbara; George C. Eskin, Eskin & Jackson, Ventura, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, Lisa

J. Brault, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, Presiding Justice.

Michael Wooten appeals from the judgment entered on a jury verdict convicting him of one count of felony grand theft. (Pen.Code, § 487.) 1 The jury determined that appellant obtained $10,000 from a construction lender by misrepresenting to the lender that the money would be used to pay a specified licensed general contractor for supervising a construction project. In fact, appellant, who was not a licensed contractor, personally supervised the construction and kept the money for himself and his partner. This is grand theft.

Appellant contends: (1) the trial court erroneously restricted the presentation of defense evidence; (2) the prosecution could not, as a matter of law, establish theft on a false pretense theory; and (3) the jury was erroneously instructed. We affirm.


Appellant and his partner, Frank Marasco (Marasco), were the principals of Darrik-Marten Company (Darrik-Marten), a firm engaged in real estate development. They obtained a $550,000 loan from Community Group Funding, Inc. (CGF) to construct a subdivision in Santa Paula. The two-page loan agreement states, "[t]he loan will consist of the following disbursements:" (1) $110,000 to Darrik-Marten; (2) $172,000 for loan fees, a payment to Darrik-Marten and interest reserves; and (3) $268,000 for construction costs and interest reserves.

The loan agreement does not establish a procedure to be used in requesting disbursements under the loan or state whether CGF could deny such requests. Although Darrik-Marten used letters to request the first two disbursements, it used a voucher to request funds for construction costs, including the payment at issue here. The voucher certified that the payee, Gary Johnson Construction, "actually performed work or labor, ... in connection with, or upon the above described construction project ... and that the sum set forth above [$10,000] actually has been paid or will be paid by the undersigned to the person or firms named."

Before the loan agreement was signed, Darrik-Marten did not discuss with CGF whether it would hire a general contractor for the project. After the agreement was signed, however, appellant and Marasco told CGF that Gary Johnson (Johnson) had been hired as the general contractor and would be paid $16,000. In February 1992, appellant submitted a construction budget to CGF which listed Johnson as the general contractor. Johnson also signed the building permit and subcontracts. In fact, appellant and Johnson agreed that CGF would pay the fee to Johnson, that Johnson would return the fee to Darrik-Marten and that appellant would supervise the project himself.

On March 9, 1992, appellant's partner mailed to CGF a voucher for a $10,000 payment to Johnson. The voucher was accompanied by an invoice from Johnson for "[s]upervision of tract 4753 which includes building of roads [and] cul-de-sac [and] all underground utilities." Marasco also sent a letter falsely stating: "I've included the next draw for our contractor, Gary Johnson, in yesterday's mailing. [p] He won't receive another payment until after all the work is complete, and the City has signed it off. Normally we pay him monthly, but this job shouldn't take more than six weeks. [p] Gary will want to begin right away."

Ten days later, CGF wrote a check to Johnson for $10,000. Appellant gave the check to Johnson and Johnson gave appellant his own check for the same amount. Appellant deposited Johnson's check into the Darrik-Marten account and immediately paid himself $5,000. It is undisputed that $10,000 was a reasonable supervision fee and was $6,000 less than the amount budgeted.

Don Lukens, the owner of CGF, was responsible for approving disbursements under the loan. It was his understanding that the loan agreement did not expressly require Darrik-Marten to use a general contractor or give CGF the right to reject a contractor retained by Darrik-Marten. Nevertheless, Lukens thought it was important to have a general contractor working on the project, and he believed appellant and Marasco when they told him that Johnson would perform as the licensed contractor. He also believed in and relied upon the information contained in Marasco's correspondence.

Lukens acknowledged that the loan agreement did not expressly allow CGF to withhold loan disbursements so long as the funds requested were actually used on the project. He testified, however, that he approved the disbursement to Johnson based upon his understanding that Johnson was the licensed general contractor working on the project. Lukens unequivocally testified that he would not have paid Johnson if he had known the truth.

When Darrik-Marten lost the project in foreclosure, appellant got a job managing a small cardroom in Oxnard. He and Marasco then applied for a permit to build their own card room. While the application was pending, the Ventura County district attorney began to investigate appellant. By late spring 1993, appellant knew he was under investigation for making illegal campaign contributions.

The $10,000 payment to Johnson was discovered during the course of that investigation. In early August 1993, Johnson and Lukens agreed that an investigator could tape-record their telephone conversations with appellant. During the first conversation, appellant told Lukens and CGF's attorney that he did not know why Johnson had returned the $10,000 to Darrik-Marten. Appellant also assured Lukens that Johnson actually performed work on the project.

During the second conversation, appellant asked Johnson to exaggerate his involvement in the project: "[H]ere's how I want to couch that, okay? And see, see if you can live with this. [Y]ou helped me get the thing put together on the front end. [p] ... [p] You know, you just walked it with me and told me what we needed to do. That kind of stuff. And ... I want to take the position that we were gonna use you and that, uh, you know, we just decided not to. Um, and that we had already paid you the first installment and when we decided not to use you, you gave us the money back. [p] ... [p] [Johnson]: Jesus, I don't know. Um, because, you know, technically, you know, we lied about this thing. [p] [Appellant]: You know I know that." When Johnson expressed concerns about lying, appellant told him nothing would happen if they both told the same story because, "nobody, nobody can prove it one way or the other, the two of us saying that."

Limitations on the Presentation of Defense Evidence.

At trial, the prosecution argued that the taped telephone conversation demonstrated appellant's consciousness of guilt. Appellant attempted to rebut that inference by explaining that, during the conversations, he believed he had not breached the loan agreement or violated any criminal laws. Instead, appellant believed the district attorney was investigating him to destroy his chances of obtaining a cardroom permit and he felt "confused" and "pressured" by the investigation. Therefore, appellant wanted an explanation that would "make the whole thing go away as quickly as possible...."

Appellant argues that he was denied a fair trial because the trial court prevented him from introducing evidence to corroborate these claims. The argument fails.

Although "wide latitude should be given to cross-examination" the trial court retains discretion to prohibit the introduction of evidence that is confusing or unduly time consuming. Its exercise of that discretion will not be overturned in the absence of a clear abuse. (People v. Cooper (1991) 53 Cal.3d 771, 816, 281 Cal.Rptr. 90, 809 P.2d 865.) There is no indication that appellant's presentation of evidence was limited by anything other than the hearsay rule, appellant's failure to provide proper foundation, and other non-controversial evidentiary rulings. The trial court did not curtail appellant's cross-examination of Johnson and Marasco. Appellant's counsel voluntarily terminated it. The reporter's transcript of Johnson's and Marasco's cross-examination is 35 and 42 pages, respectively.

Similarly, appellant was allowed to explain what he meant by his comments to Johnson and Lukens, the context in which the district attorney's investigation occurred and the effect that investigation had on his state of mind. In sum, appellant presented his version of the facts to the jury and the jury rejected it. No error occurred.

Theft by False Pretenses

A theft conviction on the theory of false pretenses requires proof that (1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. (Perry v. Superior Court (1962) 57 Cal.2d 276, 282-283, 19 Cal.Rptr. 1, 368 P.2d 529; People v. Whight (1995) 36 Cal.App.4th 1143, 1151, 43 Cal.Rptr.2d 163.) In this context, reliance means that the false representation "materially influenced" the owner's decision to part with his property; it need not be the sole factor motivating the transfer. (People v. Ashley (1954) 42 Cal.2d 246, 259, 267 P.2d 271.) A victim does not rely on a false representation if "there is no causal connection shown between the [representations] alleged to be false" and the...

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