Filed 11/16/17

                            CERTIFIED FOR PUBLICATION

                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



THE PEOPLE,                                       D070902

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. SCD255318)

JACK H. KAUFMAN,

        Defendant and Appellant.


        APPEAL from a judgment of the Superior Court of San Diego County,

Robert F. O'Neill, Judge. Affirmed.

        John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne

McGinnis, and Jennifer B. Truong, Deputy Attorneys General, for Plaintiff and

Respondent.

        On what can only be described as an unusual set of facts, a jury convicted Jack

Kaufman of grand theft of personal property belonging to his longtime friend Dr. Steven
Emmet. (Pen. Code, § 487, subd. (a).)1 At trial, the prosecution's theory was that

Kaufman: (1) sold Emmet a promissory note on property owned by Aaron Reinicke; (2)

renegotiated the note with Reinicke and reconveyed the property to him free and clear

without telling him that Emmet owned the note or informing Emmet of the transaction;

and (3) deprived Emmet of Reinicke's final payment of around $36,000 on the note. The

prosecution claimed the evidence supported conviction for grand theft by larceny, and the

jury was instructed on only that theory of theft.

       On appeal Kaufman claims that to the extent any crime occurred, it was theft by

false pretenses as to Reinicke, not larceny as to Emmet. Accordingly, he maintains, the

trial court instructed the jury on the wrong offense allegedly committed against the wrong

victim. As he did at trial, he also argues there was no theft because Emmet exercised his

right of recourse, allowing Kaufman to renegotiate the note with Reinicke. Kaufman

contends that Emmet's alleged attempt to extort repayment from Kaufman was a defense

to the crime of larceny, and he asserts the trial court prejudicially erred when it refused to

admit relevant evidence or instruct the jury on that defense. The People oppose each of

these contentions, but argue the court committed sentencing error in ordering summary

probation.

       We affirm. Viewing these unusual facts in the light most favorable to the verdict,

we conclude substantial evidence supports Kaufman's conviction for grand theft by

larceny, and the trial court properly instructed the jury on that offense. We find no basis


1      Further references are to the Penal Code unless otherwise specified.

                                              2
to conclude that a victim's attempted extortion of the defendant presents a valid defense

to a charge of theft by larceny. Even if it were a valid defense, the evidence Kaufman

sought to introduce came in at trial and did not present substantial evidence of extortion

to warrant a jury instruction. Finally, we reject the People's claim of sentencing error and

conclude that by ordering summary probation, the trial court classified Kaufman's offense

as a misdemeanor by operation of law.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In January 2002 Kaufman sold an office property to Reinicke, taking back a

$55,000 promissory note secured by a second trust deed. Reinicke was to repay the note

at seven percent interest over 10 years, in monthly installments of around $365 credited

toward both interest and principal, with a balloon payment at the end of the 10-year

period. The note permitted Reinicke to repay the note early in full or in part at any time

before maturity without penalty.

       Kaufman and Emmet had a 25-year personal and professional relationship. In

November 2002 Kaufman proposed that Emmet buy the Reinicke note as an investment

vehicle for his pension plan. On December 2, 2002, Kaufman sent Emmet a letter

offering to sell the note at a discounted rate of $45,000, and stating that Kaufman

"personally guarantee[d] [for] the full performance of the maker of the note as to the

$45,000 paid for the discounted note." Emmet said he understood this language to mean

that Kaufman personally guaranteed repayment of not only the $45,000 principal, but

also the investment as a whole. At trial Kaufman claimed he had only offered Emmet a

right of "recourse," with Kaufman guaranteeing repayment of only the $45,000 principal.

                                             3
In total, Emmet expected to receive around $80,000 at the end of 10 years, making it an

attractive investment.

       Emmet bought the note from Kaufman for $45,000 and recorded an assignment of

deed of trust at the San Diego County Recorder's Office. Kaufman instructed Reinicke in

writing to direct payments to Emmet, but he never told him he had sold the note to

Emmet.2 Emmet received monthly checks directly from Reinicke, but at times Reinicke

missed payments and Kaufman would send Emmet a check directly.

       In December 2010 with a $40,000 balance remaining on the note, Reinicke

approached Kaufman to renegotiate the terms. Kaufman offered a 10 percent discount if

he repaid the balance in full by the end of the month, and Reinicke accepted. Reinicke

thought Kaufman still owned the note when he gave him two cashier's checks totaling

$36,732. On December 23, 2010, Kaufman executed a "Substitution of Trustee and Full

Reconveyance" representing that he was the "legal owner and holder" of the Reinicke

promissory note. Reinicke recorded the reconveyance at the San Diego County

Recorder's Office on March 4, 2011.

       Shortly after the reconveyance, on January 2, 2011, Kaufman sent Emmet an

email stating, "Reinicke is having financial difficulties and I have decided to bite the

bullet—I am going to be making payments to you under my guarantee to you . . . . [¶] I

need to pick up the original note and trust deed asap so I can put maximum pressure on


2      Kaufman disputed Reinicke's assertion and presented a letter he had sent to
Reinicke in 2002 notifying him of the assignment to Emmet. Reinicke did not recall
receiving that letter or being told of the assignment.

                                              4
Reinicke." Emmet replied, "[W]e appreciate your putting the pressure on him . . . and

we're happy to make you a copy of the note . . . ." He never gave Kaufman the original

note. From that point forward, Kaufman made occasional payments of around $365 to

Emmet. Emmet received one payment in January 2011, another seven months later, and

another four months after that; Kaufman never made up payments for the months missed.

       Kaufman testified at trial that Emmet exercised his right of recourse in December

2010 before Reinicke asked for an early payoff discount. He claimed he had asked

Emmet to give him a copy of the note and trust deed in January 2011 in order to put

pressure on Reinicke in an unrelated transaction. However, Emmet testified he never

agreed to assign the note to Kaufman and always believed the note remained in his name.

       In July 2012 Emmet emailed Kaufman, "i think reinicke is about 6 months

behind . . . what will it take to bring him up to date . . . and keep him there?" Kaufman

replied that Reinicke was "gradually making up the delinquencies" and suggested "it

makes good sense to work with him." In September 2012 Emmet asked Kaufman, "is he

ever going to pay this? as you advised me what a great deal this is . . . how do we get out

of this or bring him up to date?" Kaufman replied he would pick up a check from

Reinicke personally and deliver it to Emmet. Two months later Emmet emailed again

about Reinicke's missed payments, and Kaufman wrote, "Will meet with him myself in

January [2013] and get a specific plan to bring account current and stay current first

certain." In December Emmet wrote to Kaufman that Reinicke was "about a year

behind" and asked when he would make up missed payments. Kaufman replied, "I will

see as I have told you that reinke [sic] will pay—i am guaranteeing it as you know."

                                             5
Emmet pressed Kaufman that the note was due in full many months ago, in February

2012. Kaufman replied that Reinicke needed more time to pay it off and stated an

extension was part of the original deal. Emmet responded that he had no documentation

of having authorized an extension on the note.

      At some point Emmet called Reinicke himself about the missed payments.

Reinicke told Emmet he had repaid the note in full in 2010. Emmet was shocked because

he had never given Kaufman authority to negotiate early repayment and continued to

believe he owned the note. Nevertheless, Emmet trusted Kaufman and did not know

Reinicke; he initially assumed what Reinicke had told him was not true.

      When Emmet inquired of Kaufman in early January 2013, Kaufman told him that

the deed Reinicke paid off was not the trust deed attached to the note Emmet had

purchased. Kaufman also agreed to pay Emmet the remaining $38,000 on the Reinicke

note, plus missed payments, pursuant to his personal guarantee. On January 22, 2013,

Kaufman sent Emmet an email stating,

          "Reinke [sic] in light of his discussion with you is thinking that he
          has some leverage or advantage to get more favorable terms than I
          had originally offered him back when—so I have decided in light of
          my promise to you from day one that the payment is guaranteed by
          me personally and with full recourse—to do the following.

          "1. I am sending today the $368 or so check due for this month;

          "2. I am going to pay each following month $368 or more against
          the note and arrearages [ . . . ];

          "3. I am going to Pay the full balance due your plan plus the
          arrearages no later than July 31, 2013;



                                            6
          4. At the time of payoff—your plan is to assign back to me the note
          and security and I will pursue the matter with Reinke [sic] at that
          time.

          "The end result will be that your [pension] plan will have received
          exactly what was promised."

Emmet understood this language to mean that Kaufman would pay off the full balance of

outstanding principal and interest due on the note by July 31, 2013.

       Kaufman did not send the funds, and in August 2013, Emmet pressed him to pay

the $55,000 face value of the note, minus whatever principal had been paid over the

years. Emmet wrote, "as you have seen from the documents i sent you the second trust

deed was repaid completely by reineke [sic] LAST YEAR . . . and you did not mention

this or forward that money to me. exactly how much did mr. reineke pay you?" After a

heated exchange between the parties as to the amount of principal remaining on the

Reinicke note, Kaufman agreed to pay Emmet $45,000 to settle the matter.

       In late August Kaufman sent Emmet a check for $45,852, but it did not clear due

to insufficient funds. Kaufman told him he had stopped payment on the check, believing

it had gotten lost in the mail. Emmet requested another check. Kaufman sent a second

check for the same amount in early September. At trial Kaufman claimed Emmet had

agreed to hold that check as collateral while Kaufman secured funding; Emmet denied

there was any such agreement.

       On October 1, 2013, Kaufman asked Emmet to hold the second check for another

two weeks so that he could secure a third-party loan. Emmet refused that request as

"unacceptable," said he would deposit the check, and "should it bounce [he would] have


                                            7
to make some difficult but necessary decisions." He denied intending his statement that

he would decide "what steps need to be taken" as a threat, but that is how Kaufman

claimed he took it. Emmet deposited the check, but it did not clear due to insufficient

funds. Kaufman wrote, "I just noticed that you deposited the check which we agreed you

would hold until I got the coverage arranged. It will not clear as you well know. Not

sure what you are trying to do." Emmet contacted law enforcement.

       In September 2015 Kaufman was charged with one count of grand theft of

personal property belonging to Emmet (§ 487, subd. (a)) and two counts of writing

checks with insufficient funds (§ 476a, subd. (a)). The latter two counts were dismissed

pursuant to a section 995 motion in October 2015.

       The case proceeded to a jury trial in April 2016. The People presented the

testimony of Emmet, Reinicke, and records custodians from the San Diego County

Recorder's Office and Wells Fargo. Reinicke testified he was unaware of the 2002

assignment to Emmet and believed Kaufman owned the note when he reconveyed the

property in 2010. Emmet testified he was unaware of the 2010 reconveyance and was

never told at any point that he no longer owned the note.

       Kaufman testified in his defense. He claimed he had guaranteed only the $45,000

principal Emmet paid on the note, and that Emmet exercised his right of recourse in

2010, allowing Kaufman to extinguish the note without informing Emmet. He claimed

he agreed to settle the matter with Emmet in 2013 for $45,000 solely to maintain their

friendship. When confronted with various emails he sent Emmet in 2012 and 2013

suggesting Reinicke still owed money and that Kaufman would meet with Reinicke in

                                            8
person, Kaufman claimed that he was referring to his own obligations as guarantor of the

Reinicke note.

       The jury convicted Kaufman of grand theft. In June 2016 the trial court sentenced

him to summary probation and ordered him to pay Emmet $36,732 in restitution, as

stipulated by the parties.3

                                       DISCUSSION

       Kaufman was charged with grand theft under section 487, subdivision (a), for the

theft of "money, labor, or real or personal property taken . . . of a value exceeding nine

hundred fifty dollars ($950)." Theft, in turn, is defined in section 484, subdivision (a):

          "Every person who shall feloniously steal, take, carry, lead, or drive
          away the personal property of another, or who shall fraudulently
          appropriate property which has been entrusted to him or her, or who
          shall knowingly and designedly, by any false or fraudulent
          representation or pretense, defraud any other person of money, labor
          or real or personal property, or who causes or procures others to
          report falsely of his or her wealth or mercantile character and by thus
          imposing upon any person, obtains credit and thereby fraudulently
          gets or obtains possession of money, or property or obtains the labor
          or service of another, is guilty of theft."

Section 484 consolidates the offenses of larceny, theft by false pretenses, and

embezzlement into the single crime of "theft." (People v. Gonzales (2017) 2 Cal.5th 858,

865–866 (Gonzales).)



3      The court noted at sentencing that "there were figures thrown out at trial that were
all over the place" as to the amount of damage Emmet incurred" and that "the jury had
not been asked to make specific findings as to the amount of restitution." The parties
agreed on $36,732, the final payment made by Reinicke, to avoid a lengthy restitution
hearing.

                                              9
       Kaufman contends his conviction should be reversed for insufficient evidence of

grand theft by larceny as to Emmet and argues prejudicial error in the failure to instead

instruct the jury on grand theft by false pretenses as to Reinicke. He claims Emmet's

alleged extortion was a proper defense to the crime of larceny and challenges the trial

court's evidentiary ruling and refusal to instruct the jury on that ground. We address

these contentions in turn and either find no error or conclude any error was harmless. We

further reject the People's contention that the grant of summary probation was erroneous.

1.     The Crime of Theft in a Historical Context

       Because several of Kaufman's arguments are premised on the notion that a

different theory of theft should have been pursued in this case, we start with a brief

background of the three crimes consolidated under the crime of "theft." Early criminal

laws in most American states adopted Great Britain's 18th century division of theft into

three separate crimes. (People v. Vidana (2016) 1 Cal.5th 632, 639 (Vidana).) This led

to " 'seemingly arbitrary distinctions' " between the offenses and the burden posed for the

prosecution. (Ibid.) " 'For instance, it was difficult at times to determine whether a

defendant had acquired title to the property, or merely possession, a distinction separating

theft by false pretenses from larceny by trick.' " (Ibid.) " 'It was similarly difficult at

times to determine whether a defendant, clearly guilty of some theft offense, had

committed embezzlement or larceny.' " (Ibid.) In 1927 California joined many states in

consolidating the separate offenses of larceny, false pretenses, and embezzlement into the

single crime of theft. (Id. at pp. 639–640.) The Legislature also enacted section 490a,

which provides: "[w]herever any law or statute of this state refers to or mentions larceny,

                                              10
embezzlement, or stealing, said law or statute will hereafter be read and interpreted as if

the word 'theft' were substituted therefor." (Vidana, at p. 641.)

       " 'The purpose of consolidation [in 1927] was to remove the technicalities that

existed in the pleading and proof of these crimes at common law.' " (Gonzales, supra,

2 Cal.5th at p. 865.) But it did so only to a point. Although the crimes were consolidated

under the general crime of "theft," the underlying elements did not change; "to prove its

commission, the evidence must establish that the property was stolen by larceny, false

pretenses, or embezzlement." (Id. at pp. 865–866; see Vidana, supra, 1 Cal.5th at

pp. 641–642 [same].)

       In its current formulation, larceny is the trespassory taking and carrying away of

personal property of another with the intent to permanently deprive the owner of

possession. (People v. Williams (2013) 57 Cal.4th 776, 781–782 (Williams); People v.

Davis (1998) 19 Cal.4th 301, 305 (Davis); CALCRIM No. 1800; § 484, subd. (a).)

Embezzlement occurs where "the owner entrusted property to the defendant, the owner

did so because he or she trusted the defendant, the defendant fraudulently converted the

property for his or her own benefit and, in doing so, the defendant intended to deprive the

owner of its use." (People v. Beaver (2010) 186 Cal.App.4th 107, 121 (Beaver); see

CALCRIM No. 1806; § 503.) And theft by false pretenses "involves the consensual

transfer of possession as well as title of property." (Williams, at p. 788.) It occurs where

" '(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



                                             11
property to the defendant in reliance on the representation.' " (Ibid.; see CALCRIM No.

1804.)

2.       Sufficiency of the Evidence

         Kaufman challenges the sufficiency of the evidence supporting his conviction for

grand theft of personal property belonging to Emmet. He contends there was no theft

because Emmet exercised his right of recourse. To the extent any crime occurred, he

argues it was either theft by false pretenses as to Reinicke, or perhaps embezzlement as to

Emmet, but neither theory was included in the jury instructions.

         Their common law origins can make alternative theories of theft complicated and

confusing in a specific case, particularly one with unusual facts such as these. We agree

that the alternative theft-related theories posited by Kaufman present different and

perhaps even reasonable ways to view the evidence. But the fact there are reasonable

alternative theories does not necessarily make the theory presented to the jury improper.

Viewed in the light most favorable to the verdict, we conclude substantial evidence

supports Kaufman's conviction for grand theft by larceny.

         a.    Legal principles guiding review

         On review for substantial evidence we apply a well settled standard. "[W]e must

determine whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime . . . beyond a reasonable doubt. We review the entire record in the light most

favorable to the judgment below to determine whether it discloses sufficient evidence—

that is, evidence that is reasonable, credible, and of solid value—supporting the decision,

                                             12
and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We

neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We

presume in support of the judgment the existence of every fact the jury reasonably could

deduce from the evidence. [Citation.] If the circumstances reasonably justify the

findings made by the trier of fact, reversal of the judgment is not warranted simply

because the circumstances might also reasonably be reconciled with a contrary finding."

(People v. Jennings (2010) 50 Cal.4th 616, 638–639.)

       Jury unanimity is not required as to the theory of theft. (Vidana, supra, 1 Cal.5th

at p. 643, citing People v. Nor Woods (1951) 37 Cal.2d 584, 586 ["it is immaterial

whether or not [the jury] agreed as to the technical pigeonhole into which the theft fell"].)

"[T]he particular case need not ultimately fit into one category to the exclusion of the

others. The offenses are so related that, on different interpretations of the facts, the same

acts may sometimes fall under two or even all three categories." (2 Witkin, Cal. Criminal

Law (4th ed. 2012) Property, § 3, p. 23; see People v. Dimitrovich (1961) 194 Cal.App.2d

710, 718–719 [same facts supported conviction under all three theories of theft].)

       A theft conviction must be affirmed if there is sufficient evidence to support any

theory of theft as to which the jury was properly instructed. (People v. Kagan (1968) 264

Cal.App.2d 648, 658.) It is a separate question whether a theft conviction may be upheld

on a theory of theft as to which the jury was never instructed. (Vidana, supra, 1 Cal.5th

at p. 643, fn. 9 [noting but declining to address an apparent conflict in Court of Appeal

decisions because jury was instructed on both applicable theories].) In People v.

Fenderson (2010) 188 Cal.App.4th 625 (Fenderson), for example, the court suggested

                                             13
that a conviction for grand theft could be affirmed even if embezzlement, not larceny,

was the appropriate theory and the jury was not instructed on embezzlement. (Id. at

pp. 635–637.) By contrast in Beaver, supra, 186 Cal.App.4th 107, the court reversed a

conviction for grand theft because the evidence supported theft by false pretenses, but the

jury was only instructed on larceny.4 (Id. at pp. 124–125.)

       This would be a different case had the jury been instructed on all three theories of

theft. We could simply review the evidence to determine whether it supported any

theory. But here the jury was only instructed on a single theory—theft by larceny from

Emmet.

       As Kaufman argues, the prosecution may have been able to present its case on a

theory of theft by embezzlement of money belonging to Emmet. (See People v. Riordan

(1926) 79 Cal.App. 488, 493 (Riordan) [agent embezzled note proceeds belonging to

principal].) During closing arguments, the prosecutor stated Kaufman "stayed in the

middle of this," "stayed in between those two parties," and that Emmet had not

"authorize[d]" him to negotiate early repayment on the note. There was also evidence at

trial that Kaufman had at times stepped in to collect payments for Emmet when Reinicke

fell behind.




4     It would appear that at least some of the disparate results in these cases can be
reconciled by analyzing whether the lack of a proper instruction in any way lessened the
prosecution's burden of proof. (Compare, e.g., Beaver, supra, 186 Cal.App.4th at p. 125
with People v. Counts (1995) 31 Cal.App.4th 785, 793.)

                                            14
       We also agree that the prosecution may have been able to present its case on a

theory that Kaufman committed theft by false pretenses of money belonging to Reinicke.

Reinicke gave Kaufman $36,732 relying on his belief that Kaufman still owned the note.

In purporting to renegotiate early repayment, Kaufman never told Reinicke he had sold

the note. Although Kaufman claimed he owned the note after Emmet exercised his right

of recourse, a jury could reasonably reject that claim. The reconveyance document

further satisfies the corroboration requirement as to Kaufman's false representation.

(§ 532, subd. (b).)5

       But the fact that the evidence might have suggested a different theory of theft—

such as embezzlement as to Emmet or theft by false pretenses as to Reinicke—does not

affect our analysis of whether there is substantial evidence to support Kaufman's

conviction under the theory presented to the jury. Even if the same evidence might have

supported conviction on a different theory, the critical question is whether substantial

evidence supports Kaufman's conviction for grand theft by larceny.

       b.     Application

       The prosecution's theory of larceny was that Kaufman misappropriated $36,732

given to him by Reinicke that "rightfully belonged to Dr. Emmet" under the note. As a


5       In defending their decision not to argue theft by false pretenses, the People
contend Reinicke did not own the $36,732 he gave to Kaufman due to Emmet's lien. But
as Kaufman correctly states, regardless of Emmet's lien, Reinicke had both title and
possession of that money until he gave it to Kaufman. Kaufman obtained that money on
the false pretense that he could reconvey title free and clear of all liens to Reinicke. This
fact pattern likely could have supported a charge of theft by false pretenses as to
Reinicke.

                                             15
result Kaufman "stole over $36,000 from Dr. Steven Emmet." The jury was instructed on

theft by larceny under CALCRIM No. 1800.

       "The elements of theft by larceny are well settled: the offense is committed by

every person who (1) takes possession (2) of personal property (3) owned or possessed by

another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries

the property away. [Citations.] The act of taking personal property from the possession

of another is always a trespass unless the owner consents to the taking, freely and

unconditionally, or the taker has a legal right to take the property. [Citation.] The intent

to steal or animus furandi is the intent, without a good faith claim of right, to permanently

deprive the owner of possession. [Citation.] And if the taking has begun, the slightest

movement of the property constitutes a carrying away or asportation." (Davis, supra, 19

Cal.4th at p. 305.)

       We conclude there is substantial evidence to support the jury's findings on each of

the elements of grand theft by larceny.

       First, the jury could reasonably infer that Kaufman took personal property. The

Penal Code defines personal property broadly. (§§ 491–495.) The $36,732 at issue

would qualify. (See People v. Traster (2003) 111 Cal.App.4th 1377, 1388–1389 [larceny

involving misappropriation of funds]; People v. Bunyard (2017) 9 Cal.App.5th 1237,

1244 ["The taking of money can constitute larceny."].)

       Larceny requires a trespassory taking of property owned or possessed by another.

(Davis, supra, 19 Cal.4th at p. 305.) Kaufman argues the People named the wrong victim

because "Emmet held neither title nor possession of the money [Kaufman] received from

                                             16
Reinicke." This is not the typical case in which a thief takes property directly from the

owner's possession. Here, an intermediary (Kaufman) took property ($36,732) before its

rightful owner (Emmet) received it. Thus, before turning to the evidence, we consider

whether, as a matter of law, Emmet had a sufficient interest in Reinicke's final payment

on the note for Kaufman's conduct to constitute a trespassory taking.6

       Although not addressed by the parties, English common law authorities suggest

that where a third party gives an employee property to deliver to his or her employer, the

employee is not guilty of larceny "until the goods have in some way been placed in the

employer's actual or constructive possession." (2 Witkin, Cal. Criminal Law (4th ed.

2012) Crimes Against Property, § 18, pp. 43–44, italics added; see 3 Wharton, Criminal

Law (15th ed. 2015) § 363 ["if the servant, after acquiring possession of the property but

before delivering it to his master, appropriates the property to his own use, he cannot be

guilty of larceny because there is no taking from the possession of another"].) Until that

point, the taking is embezzlement because the employee or agent has lawful possession of

funds that belong to the employer or principal. (People v. Frazier (1948) 88 Cal.App.2d

99, 103 (Frazier) [noting that when sales agent received payment for merchandise, "the



6      Kaufman argues there was no taking of Emmet's personal property because
Emmet retained ownership of the note and trust deed. "Of course, the trust deeds were
merely pieces of paper without intrinsic value, but as long as they remained of record,
they represented a security interest in the real property." (People v. Glass (1960) 181
Cal.App.2d 549, 553.) We think the contention is more appropriately framed as whether,
given the note and trust deed, Emmet had ownership or a right to immediate possession
of the $36,732 delivered by Reinicke.


                                            17
funds were lawfully in his possession but belonged to [the principal]"].)7 Were this

principle to apply, Kaufman could ostensibly defeat his larceny conviction on grounds

the taking was not trespassory as to Emmet because Emmet had yet to possess Reinicke's

final payment on the note.

       Curiously, civil and criminal cases diverge in evaluating the trespass element.

Civil conversion and larceny both require trespass. (Moore v. Regents of University of

California (1990) 51 Cal.3d 120, 126 [conversion requires interference with plaintiff's

ownership or right of possession]; Davis, supra, 19 Cal.4th at p. 305 [larceny requires a

trespassory taking].) Embezzlement does not. (Vidana, supra, 1 Cal.5th at p. 639

[embezzlement, unlike larceny, involves " 'an initial, lawful possession of the victim's

property, followed by its misappropriation' "].) A sales agent who pockets sales proceeds

commits conversion of the principal's funds. (Fischer v. Machado (1996) 50 Cal.App.4th

1069, 1073 [rejecting claim that principal had no specific right to funds received by

agent].) Yet that same agent commits embezzlement, not larceny, because the initial

taking is deemed lawful (non-trespassory). (Frazier, supra, 88 Cal.App.2d at p. 103.)



7       "For larceny there must be a trespass in the taking: the thief must take the property
out of the victim's possession, which means that he cannot already have it in his
possession. For embezzlement, on the other hand, the property must already be in the
embezzler's lawful possession when he misappropriates it." (3 LaFave, Substantive
Criminal Law (2d ed. 2003) § 19.6(e), p. 106.) Justice Oliver Wendell Holmes, Jr. then
at the Massachusetts Supreme Court, found this distinction "not very satisfactory" and the
result of "historical accidents in the development of the criminal law, coupled, perhaps,
with an unwillingness on the part of the judges to enlarge the limits of a capital offense,"
as larceny was at the time. (Commonwealth v. Ryan (Mass. 1892) 30 N.E. 364, 364–
365.)

                                             18
       This peculiar divergence between civil and criminal theft likely reflects their

distinct origins. Early larceny law addressed public harms—"breaches of the peace" that

were "likely to result in violence." (Williams, supra, 57 Cal.4th at p. 783; People v. Olivo

(N.Y. Ct. App. 1981) 420 N.E.2d 40, 42 (Olivo).) Trover, the origin of civil conversion,

addressed private harms that were not considered "a matter for societal intervention."

(Olivo, at p. 43 fn. 4; PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil &

Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) Over time, courts narrowed larceny in

some respects to avoid enlarging what was then a capital offense; thus, those who came

to possess another's property lawfully without trespass did not commit larceny.

(Williams, at pp. 783–784.) But courts also broadened larceny in other respects to better

protect private property. (Id. at p. 783.) "During this evolutionary process, the purpose

served by the crime of larceny obviously shifted from protecting society's peace to

general protection of property rights." (Olivo, at p. 43; see generally, Fletcher, The

Metamorphosis of Larceny (1976) 89 Harv. L.Rev. 469.) With criminal and civil theft

now serving the same purpose, it may be appropriate to revisit the scope of larceny's

trespassory taking element. It is the same act, whether prosecuted by the People

criminally as larceny or civilly litigated by the victim as conversion.8



8       Larceny's trespass element has been broadened in other contexts. (See Davis,
supra, 19 Cal.4th at pp. 305–306, 317 [finding trespassory taking of a shirt where
defendant tried to "return" it for store credit; although store consented to customers
handling its merchandise and knowingly gave defendant store credit before apprehending
him, it did not consent to defendant's taking possession of its shirt with the intent to steal
it].)

                                              19
       Ultimately, we need not tread new ground because there is no evidence that

Kaufman came into lawful possession of Reinicke's payment as Emmet's agent. As we

discuss post, the record shows Renicke did not instruct Kaufman to direct the final

payment to Emmet, and Emmet never consented to Kaufman taking possession of

Reinicke's final payment.9 In this unique scenario, Kaufman's taking can only be

described as trespassory as to Emmet.

       The parties have not cited, nor have we found, California authorities addressing

the trespass element of larceny under similar facts. Our independent research has yielded

several non-California cases supporting our conclusion that Kaufman's taking from

Emmet was trespassory for purposes of larceny.

       Hall v. State (Ark. 1923) 257 S.W. 61 (Hall) directly addressed whether larceny

could occur if property was diverted before it could reach its rightful owner, who was the

named victim. (Id. at p. 64.) Defendant Hall served on a state board that owed money to

a corporation for goods received. (Id. at p. 62.) The board issued payment vouchers.

Hall presented these vouchers to the state auditor, who issued warrants on the treasury

that were made payable to the corporation. Hall lacked the authority to collect money

due to the corporation on the warrants. Despite this, he went to the state treasurer's

office, indorsed the warrants in his name, and pocketed the proceeds. (Ibid.) Charged

with larceny and embezzlement, he was convicted only of larceny. (Id. at p. 62.)


9     Kaufman misstates the question in arguing he took the $36,732 from Reinicke
with Reinicke's consent. Kaufman was charged with theft of personal property as to
Emmet, so the relevant question is whether Emmet gave consent.

                                             20
       On appeal, Hall claimed there was insufficient evidence to support his larceny

conviction absent "direct proof that the warrants had been delivered" to the corporate

victim. (Hall, supra, 257 S.W. at p. 63.) Rejecting this contention, the court noted that

Hall's "wrongful act . . . constituted a constructive delivery to the rightful owner of the

warrant." (Id. at p. 64.) Hall "had no authority to have the warrant delivered to himself

for the corporation" and could not "take advantage of his own wrong and escape the

penalties . . . by saying that the warrant was never delivered to its rightful owner." (Ibid.)

Moreover, because "[h]e was never rightfully in possession of the warrant or the money

derived by cashing it," he could only be guilty of larceny, not embezzlement. (Ibid.)

       Similarly, in England v. United States (5th Cir. 1949) 174 F.2d 466 (England), a

federal appeals court concluded that a defendant was properly charged with larceny

where he intercepted and cashed a check made payable to another. (Id. at pp. 467–468.)

The defendant argued the information should have been dismissed because it alleged the

check was the property of the named payee, who had yet to receive it. Rejecting that

contention, the court noted that the defendant's "taking it away alone prevented [the

payee] from receiving it," and he therefore could not be heard "to make so fine a point of

ownership." (Id. at p. 468.)

       Finally, in Pearlstein v. State (Md.App. 1988) 547 A.2d 645 (Pearlstein), the

defendant Pearlstein was one of the principal owners of Old Court Savings & Loan,

Incorporated (Old Court), a corporation that was one of two partners in a series of real

estate development joint ventures. The second partner was a developer who served as the

managing partner. The joint venture agreement provided that the two partners would

                                              21
split a real estate commission on the developed properties. When the developer sought to

pay Old Court its share of the commissions, Pearlstein directed that the checks be made

out to a personal entity he controlled, thereby wrongfully diverting the funds. (Id. at

p. 652.) Charged with larceny from Old Court, Pearlstein argued that Old Court was not

the owner of the diverted funds. The court disagreed, holding that the savings and loan

had a sufficient interest in the diverted funds to be the victim of larceny. (Id. at pp. 652–

653.)

        Here, Kaufman was not authorized to accept Reinicke's final payment on Emmet's

behalf, and Kaufman's wrongful conduct is what prevented Emmet from receiving the

checks. Following the reasoning of Hall, England, and Pearlstein, Kaufman's

interception of Reinicke's final payment was trespassory as to Emmet, even though it

occurred before Emmet received that payment. (Cf. Riordan, supra, 79 Cal.App. at

p. 493 [authorized agent embezzled note payments belonging to principal]; Frazier,

supra, 88 Cal.App.2d at p. 103 [authorized agent embezzled sales proceeds belonging to

principal].) Kaufman's wrongful intervention effected a constructive delivery of the

payment to Emmet, making Kaufman subject to a charge of larceny.

        As to Kaufman's claim that the People named the wrong victim because Emmet

continued to own the note, we observe that Hall affirmed a larceny conviction where the

named victim continued to have a legal right to payment. As is true in this case, Hall

might have been charged with theft from the state treasury just as Pearlstein might have

been charged with theft from the developer. Instead, both were properly convicted of

theft from the intended recipient of the funds. Similarly, England upheld a larceny

                                             22
charge where the named victim presumably retained the right to payment for services he

had rendered. The rule to be distilled from these otherwise diverse cases is that a thief

who intercepts a payment intended by the payor for a payee cannot be heard to complain

because the prosecutor named the wrong victim. (Hall, supra, 257 S.W. at p. 64;

England, supra, 174 F.2d at p. 468; Pearlstein, supra, 547 A.2d at p. 652.)

       Turning to the record, the evidence at trial showed that Emmet had a security

interest in repayment under the note. Reinicke had to make monthly payments of about

$365 but could repay the note early without penalty. In 2010 Reinicke gave Kaufman a

payment of $36,732 to be applied to the note. Reinicke did not authorize Kaufman to do

anything else with the money, and he mistakenly believed that Kaufman still owned the

note. Kaufman kept the money instead of transferring it to Emmet. Emmet, in turn,

denied giving Kaufman authority to negotiate early repayment. He never thought he lost

ownership of the note. In 2013 when Emmet complained about Reinicke's mounting

delinquencies, Kaufman told him he would pay the full balance plus arrearages and then

have Emmet "assign back to me the note and security and I will pursue the matter with

Reinke [sic] at that time." This evidence supported Emmet's testimony that he always

thought he owned the note.

       In short, there is sufficient evidence that Kaufman committed a trespassory taking

of property intended for and rightfully belonging to Emmet. Emmet had a right to

payments under the note, and the final payment was not in Kaufman's lawful possession

when he stole it.



                                             23
       The next element of larceny is asportation, or the "carrying away of stolen

property." (People v. Williams (2013) 57 Cal.4th 776, 787.) "[T]he slightest movement

may constitute asportation." (People v. Gomez (2008) 43 Cal.4th 249, 255.) By taking

money from Reinicke and keeping it for himself, Kaufman satisfied the asportation

element. The jury heard evidence that Kaufman had yet to repay the balance due plus

arrearages, as he had promised, by trial.

       The final element is intent. (Davis, supra, 19 Cal.4th at p. 305.) The jury could

reasonably infer that Kaufman possessed the requisite intent to permanently deprive

Emmet of possession. Kaufman's efforts to conceal his renegotiation and receipt of

$36,732 from Reinicke support an inference of consciousness of guilt. (People v.

Thornton (2007) 41 Cal.4th 391, 438–439 [evidence suggesting consciousness of guilt

"may be evidence tending to prove, in light of all the evidence the trier of fact hears, that

a criminal defendant knew he or she committed a crime"].) Kaufman never

acknowledged receiving money from Reinicke until after Emmet spoke to Reinicke

himself two years later. In the meantime, Kaufman continued to make sporadic monthly

payments and used language in his emails to Emmet suggesting that Reinicke was still

obligated under the note. At one point, when Emmet pressed Kaufman about mounting

delinquencies, Kaufman agreed to pay him an extra $36,000, roughly the amount

received from Reinicke. As of August 2013 Kaufman still had not told Emmet how

much Reinicke had paid him for reconveyance. The parties ultimately agreed to settle the

matter for around $45,000; Kaufman sent two checks, both of which did not clear due to

insufficient funds.

                                             24
       On appeal, as he did at trial, Kaufman asserts a defense based on claim of right.

"The claim-of-right defense provides that a defendant's good faith belief, even if

mistakenly held, that he has a right or claim to property he takes from another negates the

felonious intent necessary for conviction of theft or robbery. At common law, a claim of

right was recognized as a defense to larceny because it was deemed to negate the animus

furandi—or felonious intent to steal— of that offense." (People v. Tufunga (1999) 21

Cal.4th 935, 938.) "One cannot intend to steal property which he believes to be his own.

He may be careless, and omit to make an effort to ascertain that property which he thinks

his own belongs to another; but so long as he believes it to be his own, he cannot

feloniously steal it." (People v. Devine (1892) 95 Cal. 227, 231.)

       Kaufman argues Emmet exercised the right of recourse before Kaufman

renegotiated the note with Reinicke in December 2010. Consequently, Kaufman claims

Emmet was only entitled to recover the guaranteed principal amount of $45,000, which

he received, and not any part of the $36,732 payment. Kaufman made the same argument

at trial, both in his testimony and during his counsel's closing arguments. At Kaufman's

request, the court instructed the jury with CALCRIM No. 1863 [Defense to Theft or

Robbery: Claim of Right]. The jury necessarily rejected this defense in returning a

guilty verdict. Based on Kaufman's efforts to conceal the taking, a jury could reasonably

find that Kaufman lacked a good faith belief that he had a right to the $36,732 he took

from Reinicke. As the trial court instructed the jury, a defendant's concealment of the

taking negates the claim-of-right defense. (CALCRIM No. 1863; see People v. Wooten

(1996) 44 Cal.App.4th 1834, 1848–1849.) The jury reasonably rejected Kaufman's

                                            25
affirmative defense. That the evidence could also support a contrary finding does not

warrant reversal. (People v. Jennings, supra, 50 Cal.4th at p. 639.)

       In sum, substantial evidence supports Kaufman's conviction for grand theft by

larceny in taking $36,732 owned by Emmet.

3.     Failure to Instruct on Theft by False Pretenses

       As noted, the jury here was only instructed on theft by larceny, not embezzlement

or theft by false pretenses. Kaufman challenges the court's failure to instruct on theft by

false pretenses under CALCRIM No. 1804. Citing Beaver, supra, 186 Cal.App.4th 107

and People v. Curtain (1994) 22 Cal.App.4th 528 (Curtain), he argues the crime, if

anything, was theft was by false pretenses, not larceny, and that the failure to instruct on

the correct crime resulted in prejudicial error.10

       The People initially proposed giving CALCRIM No. 1804 on theft by false

pretenses but later withdrew the request. Kaufman submitted a packet of jury instructions

that contained only CALCRIM No. 1800 [Theft by Larceny]. At the conference on jury

instructions, the court stated, "Then we have [CALCRIM No.] 1804. 'Theft by False

Pretenses.' Defense counsel is objecting and the People are properly saying they are

withdrawing that instruction, so we will not give 1804." Kaufman's counsel in no way

challenged the court's characterization.

       Kaufman argues, and the People do not dispute, that the doctrine of invited error

does not apply to prevent him from challenging the failure to give CALCRIM No. 1804


10     Kaufman does not argue the trial court should have instructed on embezzlement.

                                             26
on appeal. " 'The doctrine of invited error is designed to prevent an accused from gaining

a reversal on appeal because of an error made by the trial court at his behest. If defense

counsel intentionally caused the trial court to err, the appellant cannot be heard to

complain on appeal.' " (People v. Marshall (1990) 50 Cal.3d 907, 931.) Nevertheless,

the invited error doctrine does not apply where the trial court has a sua sponte duty to

instruct. (People v. Graham (1969) 71 Cal.2d 303, 319.) "The trial court is charged with

instructing upon every theory of the case supported by substantial evidence, including

defenses that are not inconsistent with the defendant's theory of the case." (People v.

Montoya (1994) 7 Cal.4th 1027, 1047 (Montoya).)

       Here, as we have already explained, there was substantial evidence to support the

prosecution's theory of the case—a theft by larceny as to Emmet. We reject, however,

Kaufman's claim that the court had a sua sponte duty to instruct the jury on theft by false

pretenses under CALCRIM No. 1804. Because Kaufman was charged only with theft as

to Emmet, there was no error in failing to instruct on false pretenses, a theory of theft that

would apply only as to Reinicke. Such instruction would have had no connection with

any theory of the case or any defense presented at trial. (Montoya, supra, 7 Cal.4th at

p. 1047.)

       Kaufman appears to overlook that it is the prosecutor's role to decide whom to

charge and what charges to bring. (People v. Birks (1998) 19 Cal.4th 108, 129, 134

(Birks).) It goes without saying that the same set of facts might reasonably support

different charges. When the prosecution files an accusatory pleading, it assumes the

obligation to prove only the elements of the stated charge and any lesser offense

                                              27
necessarily included therein. (Id. at p. 128.) "Unless the defendant agrees, the

prosecution cannot obtain a conviction for any uncharged, nonincluded offense." (Ibid.)

The rationale for requiring sua sponte instruction on lesser-included offenses is that the

jury may consider all supportable crimes necessarily included within the charge itself,

thus encouraging the most accurate verdict permitted by the pleadings. (Id. at pp. 118–

119.) That rationale does not extend to uncharged lesser related offenses (id. at p. 133);

nor would it apply to the uncharged, unrelated offense of theft of personal property from

a different victim. In short, the trial court did not have a sua sponte duty to instruct the

jury with CALCRIM No. 1804.

       Beaver and Curtain do not require a different result. In Beaver, there was

insufficient evidence to support the defendant's conviction for larceny from his employer,

and the evidence instead suggested by false pretenses from that same victim. (Beaver,

supra, 186 Cal.App.4th at pp. 123–124.) The court reversed the grand theft conviction

because the jury was not instructed on the appropriate theory of theft. (Id. at p. 125.)

Likewise, in Curtain, where the evidence supported theft by false pretenses but the jury

had only been instructed on larceny by trick (as to the same victim), the court reversed

the conviction. (Curtain, supra, 22 Cal.App.4th at p. 531.) Here, by contrast, there was

sufficient evidence to find grand theft by larceny from Emmet, i.e., the theory tried and

instructed. That theft by false pretenses might have been charged and proven as to a

different victim did not warrant a sua sponte instruction on that offense.




                                              28
4.     Extortion as an Alleged Defense

       At trial Kaufman sought to present a defense that his prosecution for grand theft

resulted from his refusal to give in to Emmet's attempted extortion. On appeal Kaufman

argues the trial court prejudicially erred in denying his pretrial motion in limine to admit

evidence that Emmet threatened criminal prosecution if Kaufman failed to pay him. He

also argues the court erred by failing to instruct the jury that Emmet's alleged extortion

was a defense to grand theft. Kaufman claims the court's rulings should be reviewed

under Chapman v. California (1967) 386 U.S. 18 (Chapman) because they deprived him

of his constitutional rights to present a defense theory and to a jury determination of all

facts pertaining to his guilt or innocence.

       The People respond that attempted extortion is not a defense to larceny and that

the trial court properly refused to admit irrelevant evidence of alleged extortion or

instruct the jury as to a nonexistent defense. The People further argue that any error was

harmless because the evidence ultimately came in at trial and was "so innocuous" it did

not suggest extortion. We agree.

       a.     Procedural background

       During motions in limine, Kaufman sought to admit evidence that his prosecution

was a result of Emmet's resort to extortion to collect a debt, arguing Emmet's statement in

an email that he would "have to determine what steps need to be taken" if he did not

receive payment by a particular date was an implied threat of criminal prosecution. The

prosecution opposed Kaufman's motion, arguing Emmet's attempts to extort payment

from Kaufman were not a lawful defense to theft by larceny. Kaufman made an offer of

                                              29
proof that Emmet's threats to go to the police every time he felt he was owed money was

"extortion, plain and simple" and that Kaufman "ought to be able to bring to the jury's

attention as to the motivating factor why this case [is] in trial in the first place." The trial

court denied Kaufman's motion, agreeing with the prosecution that extortion was not a

defense to criminal prosecution.

       Kaufman submitted a proposed jury instruction as to the claimed defense. The

proposed instruction was based loosely on CALCRIM No. 1830, which provides, in

relevant part, that to prove a defendant guilty of extortion, the People must prove:

           (1) "The defendant threatened to accuse another person . . . of a
           crime"; (2) when making the threat, the defendant intended to use
           that fear to make the other person consent to give the defendant
           money; (3) as a result of the threat, the other person consented to
           give the defendant money; and (4) As a result of the threat, the other
           person then gave the defendant money."

Kaufman proposed the following modified instruction:

           "Extortion by the alleged victim is a defense to theft or robbery. If
           you find that the alleged victim threatened to accuse the defendant of
           a crime; AND as a result of the threat, the defendant was prosecuted,
           you must find him not guilty."

The trial court rejected Kaufman's request and did not instruct the jury that extortion was

a defense to larceny. The court determined Emmet's email to Kaufman "was not a

sufficiently qualifying event for extortion" because Emmet merely stated he would

consider his remedies if Kaufman did not pay and "[t]here is nothing to preclude

someone from going to the police if they think they have a right to."




                                               30
       b.     Extortion is not an implied affirmative defense to grand theft

       Kaufman urges that we find extortion by the victim to be a defense to grand theft

by larceny. He cites cases discussing California's policy interest in avoiding the abuse of

criminal process to coerce payment. (People v. Beggs (1918) 178 Cal. 79, 81 (Beggs)

[attorney told thief he would be sent to prison if he did not pay the attorney's client much

more than the value of the items taken]; People v. Umana (2006) 138 Cal.App.4th 625,

628 (Umana) [underage minor threatened to report man she had dated for sexual assault

if he did not pay her money]; Morrill v. Nightingale (1892) 93 Cal. 452, 456 (Morrill)

[plaintiff abused criminal process in securing arrest warrant to compel defendant to sign

promissory notes].) He claims that by not recognizing the defense, we would sanction

the very extortion the law prevents "because Emmet will have been able to resort to the

criminal process to collect his debt."

       Kaufman's argument raises a pure question of law subject to de novo review.

(People v. Rells (2000) 22 Cal.4th 860, 870.) He admits he has not found any authority

suggesting attempted extortion by a victim provides a defense to criminal prosecution for

grand theft by larceny. The cases he cites indicate only that if the facts supported it, the

People could charge Emmet with extortion for abusing the criminal process. (Beggs,

supra, 178 Cal. at p. 81; Umana, supra, 138 Cal.App.4th at p. 628; Morrill, supra, 93

Cal. at p. 456; §§ 518, 519.) These authorities do not suggest alleged extortion by the

victim should be an affirmative defense to the crime of larceny by the defendant.

       Nor are we persuaded by the logic of Kaufman's argument that we should

recognize a victim's attempted extortion as a defense to theft by larceny. Some defenses

                                             31
serve to overcome or negate essential elements of the crime charged. (People v. Bolden

(1990) 217 Cal.App.3d 1591, 1601 (Bolden).) Emmet's alleged threats to Kaufman were

after the fact of the alleged taking and do not tend to negate any element of larceny, such

as a taking of personal property, possession or ownership, consent, asportation, or intent.

(See CALCRIM No. 1800.) Had Kaufman paid the $36,732 to Emmet, as the jury

necessarily found he was obligated to do, there would be no liability for larceny

notwithstanding that Emmet might have demanded more.

       Kaufman seems to be suggesting that a victim's attempt to extort a civil settlement

by threatening criminal theft charges should be an affirmative defense to a larceny

prosecution. "[A]n affirmative defense is one which does not negate any element of the

crime but is new matter which excuses or justifies conduct which would otherwise lead to

criminal responsibility. For example, necessity is a defense which admits, for the sake of

argument, the elements of the charged offense, but offers a justification to avoid criminal

culpability." (Bolden, supra, 217 Cal.App.3d at p. 1601.)

       The short answer to Kaufman's contention is that two wrongs don't make a right.

If a victim threatens criminal prosecution of a thief in order to extort a payment, the thief

is still guilty of theft. The fact that the victim may also be guilty of a crime does not

exonerate the thief.

       Because we find no basis to conclude that a victim's attempted extortion is a

defense to the crime of larceny, we find no error in the court's exclusion of irrelevant

evidence or refusal to instruct the jury on an invalid defense. Further, as we discuss



                                              32
below, even if extortion were a valid defense to larceny, we would find no prejudicial

error.

         c.     Any error in the evidentiary ruling was harmless

         During pretrial motions in limine, Kaufman sought to introduce Emmet's

statement in an email that he would "have to determine what steps need to be taken" if he

did not receive payment by a certain date. He claimed the statement was an implied

threat of criminal prosecution. On appeal, Kaufman challenges the court's denial of his

motion to admit the proffered evidence. He argues the evidence was probative of

Emmet's attempts to extort, which in turn was relevant to his claimed extortion

defense.11

         Despite the trial court's pretrial ruling, Emmet's statement that he would "have to

determine what steps need to be taken" nevertheless came in at trial. Thus, even if the

court abused its discretion in excluding the proffered email, we conclude any error was

harmless in light of the subsequent admission of the same evidence. The jury considered

a September 2013 email in which Emmet wrote that if a check did not arrive by

September 16, "then my offer in respects to the loan and to the second trust deed, will be

null and void and i will have to determine what steps need to be taken." Kaufman

testified that he considered this statement as a threat to seek criminal prosecution, but

11     For the first time on appeal, Kaufman also argues that the evidence was relevant to
impeach Emmet's credibility. His failure to seek admission of the evidence for
impeachment purposes results in forfeiture of that claim on appeal. (See People v. Seijas
(2005) 36 Cal.4th 291, 302; People v. Davis (1995) 10 Cal.4th 463, 502.) In any event,
as we explain, the evidence Kaufman sought to introduce did come in at trial, rendering
any claimed error harmless.

                                              33
Emmet denied intending it in that manner. The jury also considered Emmet's similar

statement in October 2013 that if the second check for $45,000 did not clear, "i will have

to make some difficult but necessary decisions." During closing arguments, Kaufman's

counsel argued that Emmet threatened criminal prosecution if he did not repay the

Reinicke note by a date certain and that ultimately, Emmet "makes good on his threat by

complaining to the D.A. investigator."

       Thus, any error in denying Kaufman's pretrial motion to admit the evidence was

harmless under any standard. (People v. Watson (1956) 46 Cal.2d 818, 826; Chapman,

supra, 386 U.S. at p. 24.)

       d.     There was no related instructional error

       Threatening to do something that a person has a legal right to do does not

constitute extortion. (CALCRIM No. 1830; People v. Schmitz (1908) 7 Cal.App. 330,

370 (Schmitz).) The trial court reasonably found that the evidence at best amounted to

Emmet stating he would consider his options if Kaufman failed to pay. These "threats"

would not constitute extortion as a matter of law, even if extortion were a valid defense.

(Schmitz, at p. 370.)

       Schmitz is instructive. In that case, the defendant charged with extortion for

threatening a restaurant owner that if debts were not paid, he would prevent the restaurant

from obtaining a liquor license. (Schmitz, supra, 7 Cal.App. at p. 366.) The court

concluded this "threat" could not amount to extortion because "[t]o procure property from

others by a mere threat to do a lawful act is not a crime." (Id. at p. 368.) As the court

explained, "Anyone has the right to go before the board of police commissioners, if that

                                             34
body will hear him, and object to the granting of a license to sell liquors to a person who

is keeping a place in violation of the law. He has the right to threaten to do so." (Ibid.)

In denying a hearing, our high court agreed with the court of appeal's analysis and further

explained: "The conjunction of the lawful persuasion inducing the lawful refusal of the

license with the malicious motive instigating the persuasion would not convert the lawful

act of refusing the license into an unlawful one, nor make the resulting injury unlawful or

actionable. In order to make an injury from the lawful act of a third person a cause of

action against the person inducing the act, such act must be procured by some means

which the law denounces as unlawful." (Ibid.)

       Here, the evidence at best suggested Emmet "threatened" to go to law enforcement

when Kaufman did not pay him the money he believed was owed. There is no evidence

or argument that Emmet sought to exert undue influence on law enforcement to press

charges. Thus, even if a victim's extortion were a valid defense to the crime of larceny,

the evidence does not support that Emmet extorted Kaufman when he threatened to, and

did approach law enforcement after Kaufman failed to pay.

       A defendant has a right to have the trial court instruct the jury on any affirmative

defense for which the record contains substantial evidence. (People v. Mentch (2008) 45

Cal.4th 274, 288.) On appeal we "ask only whether the requested instruction was

supported by substantial evidence." (Ibid.) Even if extortion were a valid implied

affirmative defense to larceny, substantial evidence did not support instruction on

extortion. Therefore, the trial court did not err when it refused to give Kaufman's

requested instruction. (People v. Shelmire (2005) 130 Cal.App.4th 1044 ["defendant was

                                             35
not entitled to an instruction on [a] defense because substantial evidence did not support

it"].)

5.       Sentencing Error

         The jury convicted Kaufman of grand theft under section 487, subdivision (a) and

did not indicate in pronouncing the verdict in open court or in its verdict forms whether

the conviction was a felony or a misdemeanor. At the sentencing hearing, the court

stated its inclination to follow the probation department's recommendation for formal

probation and asked for comment. Kaufman's counsel stated the only dispute "has to do

with whether or not Mr. Kaufman should be placed on formal probation or informal

probation"; he argued summary (informal) probation would suffice. The prosecution

disagreed, stating, "formal probation is necessary and required based on the large amount

of restitution in this case." The trial court ordered summary probation, stating, "I will

place Mr. Kaufman on three years—it is going to be summary probation to the court;

however, the offense remains a felony offense, but it is summary probation." The court

stated it "saw no value on placing him on formal probation."

         On appeal, the People argue Kaufman's sentence was unauthorized because a

conviction for a "felony offense" precluded summary probation. They request a remand

for resentencing on felony grand theft.12 Kaufman argues that notwithstanding the trial



12     "Although the People did not file a notice of appeal, an unauthorized sentence may
be corrected at any time." (People v. Pelayo (1999) 69 Cal.App.4th 115, 122.) "[A]
sentence is generally 'unauthorized' where it could not lawfully be imposed under any
circumstance in the particular case. Appellate courts are willing to intervene in the first

                                             36
court's statement that "the offense remains a felony offense," the court classified the

offense as a misdemeanor by operation of law when it ordered summary probation.

       Section 1203 governs the grant of probation at sentencing. "A grant of informal or

summary probation is a 'conditional sentence.' " (People v. Glee (2000) 82 Cal.App.4th

99, 104 (Glee); see § 1203, subd. (a).) "Conditional sentences are authorized only in

misdemeanor cases." (Glee, at p. 104; see People v. Willis (2013) 222 Cal.App.4th 141,

145 (Willis) [same].) Thus, the trial court was not authorized to grant summary probation

for a conviction of felony grand theft.

       The crime of which Kaufman was convicted was a "wobbler," which may be

punished by either "imprisonment in a county jail not exceeding one year or [as a felony]

pursuant to subdivision (h) of Section 1170." (§ 489, subd. (c).) Section 1170 provides

that "a felony punishable pursuant to this subdivision where the term is not specified in

the underlying offense shall be punishable by a term of imprisonment in a county jail for

16 months, or two or three years." (§ 1170, subd. (h)(1).) Under section 17, a felony

automatically converts to a misdemeanor when the judgment imposes a punishment other

than imprisonment under the provisions of section 1170, subdivision (h). (§ 17, subd.

(b)(1); Willis, supra, 222 Cal.App.4th at p. 144–145.) Accordingly, "by ordering

summary probation, the court classified defendant's offense as a misdemeanor." (Willis,

at p. 145.)



instance because such error is 'clear and correctable' independent of any factual issues
presented by the record at sentencing." (People v. Scott (1994) 9 Cal.4th 331, 354.)


                                             37
       Relying on People v. Soto (1985) 166 Cal.App.3d 770 (Soto), the People argue the

court's action in granting summary probation cannot be treated as reducing the offense to

a misdemeanor in light of its statement at sentencing that "the offense remains a felony

offense." In Soto, at the time it granted summary probation the trial court "specifically

stated that it 'does not intend to make it a misdemeanor by sentence' and thereafter during

the probation revocation proceeding deemed the matter a felony." (Id. at p. 775.) The

Soto court found that the court's statement of intent was sufficient to preserve its later

ability to impose a felony sentence if the terms of probation were violated. (Ibid.)

       Critical to Soto's result was the fact that the sentencing court expressly reserved

jurisdiction to impose a felony sentence at a later date. Courts have distinguished Soto on

this basis to reach a different outcome in other similar instances. Glee, supra, 82

Cal.App.4th 99 considered whether a prior conviction for assault with a deadly weapon

constituted a strike within the meaning of the "Three Strikes" law. (Id. at p. 101.) The

court concluded that by granting summary probation on the earlier conviction—

authorized only in misdemeanor cases—the court automatically rendered the crime a

misdemeanor. (Id. at pp. 105–106.) The sentencing court's statement that it was placing

the defendant on " 'felony probation for a period of one year' " before specifying it was

granting " 'summary probation' " did not change what was otherwise an automatic

conversion to a misdemeanor. (Ibid.) Unlike in Soto, the Glee court noted that the

defendant was "not advised that if he violated probation a prison sentence would be

imposed," which "support[ed] the inference that the sentencing court did not intend to



                                              38
retain jurisdiction over appellant with the possibility of later imposing a prison sentence."

(Glee, at p. 105.)

       Similarly, in Willis, the sentencing court imposed summary probation but standard

minute orders designated the charge as a felony. (Willis, supra, 222 Cal.App.4th at

p. 145.) The court concluded that by ordering summary probation, the court classified

the offense as a misdemeanor. (Ibid.) Notwithstanding the minute orders, the reporter's

transcripts revealed "no indication of any intent to classify the offense as a felony."

(Ibid.) Willis distinguished Soto on the basis that the court there "expressly reserved

jurisdiction to pursue the offense as a felony at a later date." (Id. at p. 146.)

       Here, the court's statements are similar to the comments of the court in Soto. As in

Soto, where the court expressed its intent to classify the offense as a felony

notwithstanding the sentence, the trial court here emphasized that the offense remained a

"felony offense." Nevertheless, we conclude this case is more analogous to Glee and

Willis because, as in those cases, the court expressed no intention to preserve jurisdiction

for later felony sentencing. It remarked that it saw "no value in placing [Kaufman] on

formal probation," specified that probation would be "summary probation to the court,"

and modified the probation department's recommendation to delete "any reference to a

probation officer." The court retained jurisdiction solely over the restitution issue, "just

in case, if for whatever reason that comes before the court again." As in Glee and Willis,

by ordering summary probation, the court classified Kaufman's offense as a misdemeanor

by operation of law.



                                              39
                                  DISPOSITION

      The judgment is affirmed.




                                                DATO, J.

WE CONCUR:



NARES, Acting P. J.



IRION, J.




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