The People v. Tupper

• Decision Date: 23 December 2010
• Docket Number: A125301,Mendocino County Super. Ct. No. SCTMCRCR0775971
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. LEAH TUPPER, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent,

v.LEAH TUPPER, Defendant and Appellant.

A125301

Mendocino County Super. Ct. No. SCTMCRCR0775971

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Filed: December 23, 2010

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Leah Tupper appeals from a conviction for embezzlement and burglary. A jury found that defendant, the bookkeeper for a preschool, failed to deposit into the school's bank account numerous cash payments received for children's tuition and converted the payments to her own use. She challenges her conviction on various grounds, none of which has merit, but we conclude that minor corrections must be made with respect to the terms of her probation.

Background

Defendant was charged by first amended information with one count of grand theft by embezzlement (Pen. Code, ¹ § 503) and one count of second degree burglary (§§ 459, 460). There was evidence at trial of the following facts.

Nancy Pollard was the director of Little Lambs Preschool in Fort Bragg from 2003-2005. Pollard testified that defendant was the bookkeeper at Little Lambs from 2003 through mid-November 2005. In that role, she was required to deposit and enter intothe computer tuition payments and to generate monthly statements for the parents. Tuition payments were to be deposited into the school checking account. When a parent gave a payment to a staff member, the money was to be recorded on an intake sheet along with the child's name, the date of receipt, whether the payment was by cash or check, the check number or the receipt number if the payment was made in cash, and the initials of the person making the payment. The money along with a copy of the receipt was placed in a zippered pouch kept in a locked cupboard.

Pollard and defendant were the two people who most often received cash payments. Pollard and defendant were the only two people with access to the locked cupboard while defendant worked there, and so far as Pollard was aware the cupboard was not broken into during that period. Defendant was also responsible for preparing a "breakdown sheet" that reflected payments made on behalf of each child, itemizing whether the payment was for materials, tuition, or late fees. Defendant prepared a handwritten deposit slip itemizing cash and checks being deposited. Normally defendant placed the cash and checks in her purse and told Pollard that she was going to make a deposit.

Defendant left her position with Little Lambs on November 15, 2005, for health reasons. Pollard did not suspect any wrongdoing at that time. After defendant left, Pollard conducted an audit that revealed missing funds. The audit revealed several occasions on which no cash deposit had been made, although a parent, Tom Humecky, had receipts for payments on some dates on which there were no deposits. Pollard identified 68 cash payments that had not been deposited, totaling $12,525.50. All of the deposit slips for deposits that were made on dates of those payments but did not include missing payments were in defendant's handwriting. The breakdown sheets that should have reflected the missing deposits were also in defendant's handwriting.

In February 2006, Pollard met with defendant; Daniel Fowler, the pastor of the church that ran the preschool; and Deborah McCullough, the new bookkeeper. Fowler asked defendant about an $800 cash payment from Humecky that had not been deposited.

Defendant told Fowler she thought it was strange that the money had not been deposited and added, "I didn't steal the money."

Humecky testified that his son had attended Little Lambs Preschool since March 2005. He paid his son's tuition in cash to whichever staff member was on duty at the time. He remembered making payments to Pollard, McCullough, and defendant. When he paid, he was given a receipt signed by the staff member who took the payment. He recalled making an $800 payment to defendant and receiving a receipt from her. A copy of the receipt was admitted in evidence. Humecky identified 12 cash payments he made in 2005. He received a monthly statement from Little Lambs for payments he had made.

Sergeant Charles Gilchrist of the Fort Bragg Police Department testified that he interviewed defendant in August 2006. Defendant denied taking any money from the preschool.

Carol Steele testified that she had 30 years of experience in the banking industry and that she had special experience reviewing bank statements to determine the amount of deposits. Steele was also an elder of the church that operates the preschool and was asked by Pollard to audit the Little Lambs bank statements and other documents. Steele reviewed the parents' ledgers for payments that were recorded as cash, the intake sheets, and the bank statements for the preschool checking account to see if cash was listed on the deposit slips. For her final audit, Steele said, "I started with the amounts that I had listed on the original one... and I did a paper trail. I started from those figures and those dates, went back to the parents' ledgers, confirmed the dates and the amounts, and then I went to the checking account deposit slips for that day and the next day, and then I went to the savings account deposit tickets to look to see if the cash deposits were there." Steele performed this review for September 2003 through November 2005. She determined that "a little over $12,000" should have been deposited that was not.

In defense, four members of defendant's community testified to her reputation for truth and honesty.

A jury found defendant guilty of both grand theft by embezzlement and burglary. The court placed her on probation for five years, conditioned on, among other things, serving 120 days in jail and seeking and obtaining "meaningful employment." Among various fees and penalties defendant was ordered to pay was an $87 fine purportedly pursuant to section 1202.5.

Discussion

Unanimity instruction

Defendant argues that because multiple instances of criminal conduct were alleged and argued, the trial court should have instructed the jury that it was required to agree on the specific instances in order to find her guilty of embezzlement or burglary.

"The purpose behind a unanimity instruction is that: 'when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed in the words of CALJIC No. 17.01 or 4.71.5 or their equivalent that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.' " (People v. Winkle (1988) 206 Cal.App.3d 822, 826.) However, "[a] unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct. [Citation.]... 'The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.' " (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)

Defendant relies on People v. Ferguson (1982) 129 Cal.App.3d 1014 to argue that a unanimity instruction was required. In that case, the defendant was charged with one count of check fraud for passing 35 checks with insufficient funds. "Appellant opened a checking account at [a] Wells Fargo Bank with a deposit of over $300. One week later, appellant closed the account claiming he had lost his checkbook. Using the balance of the closed account and an additional $200, appellant opened another account at the same bank. This account was closed less than a month later. [¶] Appellant wrote about 35 checks on the two accounts; the checks were written over a 2-month period and involved more than 20 payees. These checks were never paid because the accounts had beenclosed or had insufficient funds. Most of the checks bore a notation of 'promissory note' or 'not for deposit'; this notation was often written illegibly in small letters over the account number on the check." (Id. at pp. 1018-1019.) In rejecting the argument that the crime fell within the continuous course of conduct exception, the court noted, "The acts here involved different victims, at separate times and were only connected by the fact that they were committed by the same individual utilizing a single modus operandi." (Id. at p. 1021.)

The Attorney General relies on People v. Daniel (1983) 145 Cal.App.3d 168 in support of the application here of the continuing course of conduct exception. In Daniel the defendant was charged in one count with grand theft from a single victim in excess of $25,000. The evidence was that he took smaller amounts from this victim on numerous occasions by various means. The appellate court rejected the contention that a unanimity instruction was required as to that count, reasoning that the charges against the defendant "alleged that [he] engaged in a continuous course of conduct of theft from a single victim over a period of five months with a single fraudulent intent or objective. Both the prosecuting and defense attorneys and the judge conducted the case according to this theory during the entire course of this protracted trial. None of the individual acts of taking by appellant was established to be in excess of $25,000. The jury must have concluded, therefore, that the appellant did indeed engage in a continuous course of conduct with a single fraudulent intent and that he obtained property in excess of $25,000." (Id. at p. 175.)²

In People v. Thompson, supra, 36 Cal.App.4th 843, ...