Filed 2/11/14 (unmodified opn. attached)



                                       CERTIFIED FOR PUBLICATION



               IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                 FOR THE COUNTY OF VENTURA
                                           APPELLATE DIVISION




 THE PEOPLE,                                        )   Ventura County Superior Court Case
                                                    )   Number 2010038277
                  Plaintiff and Respondent,         )
                                                    )   ORDER MODIFYING OPINION,
                  vs.                               )   CERTIFYING OPINON FOR
                                                    )   PUBLICATION
 BRIAN WETHERELL,                                   )   [NO CHANGE IN JUDGMENT]
                                                    )
                  Defendant and Appellant.          )
                                                    )



        THE COURT:
        It is ordered that the opinion filed herein on January 3, 2014, be modified as follows:

        1.       On page 5, footnote 2 should be deleted.

        2.       All subsequent footnotes are to be renumbered.

        There is no change in the judgment.

       For good cause it now appears that the opinion should be published in the Official
Reports and it is so ordered.


                                                        KENT M. KELLEGREW
                                                        Presiding Judge, Appellate Division




                                                   1
Filed 1/3/14; pub. order 1/27/14   (unmodified version)



                                   CERTIFIED FOR PUBLICATION




               IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                   FOR THE COUNTY OF VENTURA
                                        APPELLATE DIVISION




 THE PEOPLE,                                              )
                                                          )
                   Plaintiff and Respondent,              )
                                                          ) Ventura County Superior Court Case
                   vs.                                    ) Number 2010038277
                                                          )
 BRIAN WETHERELL,                                         )
                                                          )
                   Defendant and Appellant.               )
                                                          )

THE COURT:

       APPEAL from a judgment from the trial court in the Superior Court of Ventura County,
Hon. Matthew P. Guasco, Hon Kent M. Kellegrew and Hon. Nancy L. Ayers, Judges. Judgment
was affirmed.

         Trial Judge:
         Kevin G. DeNoce

         Counsel:
         Gregory D. Totten, District Attorney and W. Taylor Waters, Deputy District Attorney,
         for Plaintiff/Respondent

         David McDuffie for Defendant/Appellant




                                                          2
                                          OPINION AND JUDGMENT
           Defendant and appellant, Brian Wetherell (“appellant”), appeals his conviction following
his plea of no contest to a misdemeanor count of diverting construction funds in violation of
Penal Code, Section 484b. Appellant argues that the judgment of conviction and sentence should
be reversed because his prosecution for the charged offense is time-barred. Specifically,
appellant argues that the charged offense is governed by the three-year limitations period
provided by Penal Code, Section 801. Plaintiff and respondent, the People (“respondent”),
argues that violation of Penal Code, Section 484b is a crime, “a material element of which is
fraud,” within the meaning of Penal Code, Section 803, subdivision (c), thus bringing
prosecution of the charged offense within the four-year limitations period of Penal Code, Section
801.5. It is undisputed that the prosecution commenced later than three years but within four
years after the acts which serve as the basis of the charged offense.
           We hold that the offense of diverting construction funds in violation of Penal Code,
Section 484b, although not one in which the specific intent to defraud is an essential element for
conviction, is nonetheless a crime in which fraud is a “material element” for purposes of
applying the four-year statute of limitations pursuant to Penal Code, Sections 801.5 and 803,
subdivision (c). Accordingly, prosecution of the charged offense is not time-barred, and we
affirm the judgment of conviction and sentence.
                            FACTUAL AND PROCEDURAL BACKGROUND
           The prosecution of this case began with the filing of a complaint on October 16, 2009,
alleging that appellant violated Penal Code, Section 484b, diverting construction funds, a felony,
as well as Business & Professions Code, Section 7159, subdivision (d), excessive demand for
down payment, a misdemeanor.1 Both charged offenses were alleged to have been committed
by appellant on or about April 5, 2006. Through a series of procedural events which are not
summarized here, including amending, dismissing, and re-filing of charges, the current

1
    All further statutory references are to the Penal Code unless otherwise specified.



                                                             3
incarnation of the charges are as misdemeanors. Appellant was arraigned on and entered pleas of
not guilty to the misdemeanor charges alleged.
        On September 12, 2011, the case was assigned to a trial department for hearing on
appellant’s motion to dismiss for lack of jurisdiction based upon the bar of the statute of
limitations and for a jury trial. The parties briefed the statute of limitations issues before the trial
court. Appellant argued that the charged offenses are subject to the three-year limitations period
of Section 801. Respondent argued that the prosecution is governed by the four-year limitations
period of Section 801.5 and Section 803, subdivision (c) (fraud a “material element” of the
offense).
        On September 14, 2011, the trial court denied appellant’s motion to dismiss. The trial
court concluded that, based upon the authorities presented by the parties and the legislative
history and intent of Section 484b and Section 803, subdivision (c), the charged offenses are
subject to the four year limitations period of Section 801.5, not the three-year limitations period
of Section 801. It is undisputed that prosecution of the charged offenses began more than three
years but sooner than four years after the date the crimes were committed.
        On May 9, 2012, appellant entered his plea of no contest to Count 1, a misdemeanor
violation of Section 484b. Count 2 was dismissed on motion of respondent in light of the plea.
A restitution hearing was conducted by the trial court on June 14 and June 23, 2012, during
which testimony was taken concerning the monetary loss suffered by the victim, a homeowner
who had contracted with appellant concerning a construction project. At the conclusion of the
restitution hearing, the trial court suspended the imposition of sentence and placed appellant on
unsupervised probation for 36 months. Among the terms and conditions imposed, the trial court
ordered that appellant serve 30 days in jail and pay restitution to the victim in the amount of
$52,692, plus interest at the rate of 10% per annum beginning April 5, 2006, until paid in full.
The jail sentence was stayed pending payment of restitution in full.
        Appellant filed a notice of appeal of the judgment of conviction and sentence on June 25,
2012.



                                                   4
                                        APPEALABILITY
       The judgment of conviction and sentence is appealable. (§ 1466, subd. (b)(1).) The right
to appeal a misdemeanor judgment of conviction and sentence exists without the need for
issuance of a certificate of probable cause. (People v. Woods (1978) 84 Cal.App.3d 149, 154.)
The jurisdictional bar of the statute of limitations is not waived on appeal following entry of a no
contest plea. (See People v. Zamora (1977) 18 Cal.3d 538, 547.)
                                          DISCUSSION
                                                 I.
                                   STANDARD OF REVIEW
       The question of whether a prosecution is barred by the statute of limitations is one of law
concerning a jurisdictional defect. Resolution of that question is based upon undisputed
procedural facts. Moreover, resolution of the statute of limitations jurisdictional question
depends upon our construction of the relevant statutes, a purely legal task. Accordingly, we
exercise our independent judgment on review of the issues in this appeal. (Pugliese v. Superior
Court (2007) 146 Cal.App.4th 1444, 1448.)
                                     II.
        SECTION 484b IS AN OFFENSE, A MATERIAL ELEMENT OF WHICH
         IS FRAUD, WITHIN THE MEANING OF SECTIONS 801.5 AND 803(c)

       The statute of limitations serves valuable purposes in a criminal prosecution. Chief
among them are the avoidance of prejudice to both the People and the defendant resulting from
the loss of evidence with the passage of time, as well as respect for the right of a defendant to a
speedy trial. (People v. Zamora, supra, 18 Cal.3d at pp. 546-547.) The bar of the statute of
limitations is a jurisdictional defect which cannot be waived by the defendant. (Id. at p. 547.)
       Section 801 establishes a three-year statute of limitations for offenses punishable as
felonies, even though those same offenses may be prosecuted as misdemeanors. The charged
offense in this case – violation of Section 484b – may be prosecuted as either a felony or a
misdemeanor. It was initially filed as a felony and later amended to a misdemeanor.
       Section 801.5 is an exception to section 801 and provides as follows:

                                                  5
       “Notwithstanding Section 801 or any other provision of law, prosecution of any
       offense described in subdivision (c) of Section 803 shall be commenced within
       four years after discovery of the commission of the offense, or within four years
       after completion of the offense, whichever is later.”

       Section 803, subdivision (c), provides in pertinent part as follows:
       “A limitation of time prescribed in this chapter does not commence to run until
       the discovery of an offense described in this subdivision. This subdivision applies
       to an offense punishable by imprisonment in the state prison or imprisonment
       pursuant to subdivision (h) of Section 1170, a material element of which is fraud
       or breach of a fiduciary obligation . . . .” (Emphasis added.)

       Section 803, subdivision (c) goes on to list specific offenses within its ambit. It is
undisputed that the charged offense here – violation of Section 484b – is not included in that list.
It has been held, however, that the list contained in Section 803, subdivision (c) is not
exhaustive. (People v. Guevara (2004) 121 Cal.App.4th 17, 25.) The question in this appeal is
whether a violation of Section 484b is one in which “a material element . . . is fraud” within the
meaning of Section 803, subdivision (c).
       Appellant correctly argues that violation of Section 484b is a general intent crime in
which specific intent to defraud is not an element essential for conviction. (People v. Stark
(1994) 26
Cal.app.4th 1179, 1182-1183.) Respondent, however, also is correct that this observation does
not dispose of the question of whether, for purposes of the statute of limitations, a violation of
Section 484b is one in which a material element is fraud within the meaning of Section 803,
subdivision (c).
       In determining whether an offense is one in which a material element is fraud within the
meaning of Section 803, subdivision (c), we must determine if Section 484b is intended by the
legislature to punish and deter fraudulent conduct, not whether or not a specific intent to defraud
is an explicit element of that offense. (People v. Fine (1997) 52 Cal.App.4th 1258, 1265; People
v. Guevara, supra, 121 Cal.App.4th at pp. 25-26; People v. Bell (1996) 45 Cal.App.4th 1030,
1060-1061.) If the crime is intended by the legislature to punish and deter fraud, then the
delayed discovery provisions of Section 803, subdivision (c), and the four-year limitations period


                                                  6
of Section 801.5 apply regardless of whether a specific intent to defraud is an element of the
offense for purposes of conviction. (People v. Guevara, supra, 121 Cal.App.4th at pp. 25-26;
People v. Bell, supra, 45 Cal.App.4th at pp. 1060-1061.)
          For example, in People v. Guevara, supra, 121 Cal.App.4th 17, the court held that a
violation of Elections Code, Section 18203 – filing a false nomination paper – is one in which a
material element is fraud for purposes of Section 803, subdivision (c), and Section 801.5, even
though an intent to defraud is not an element essential for a conviction of that offense. (121 Cal.
App.4th at pp. 24-25.) Although violation of Elections Code, Section 18203 involves only
general criminal intent, its core purpose is to prevent election fraud. (Id. at p. 25.) Accordingly,
a violation of that statute involves fraud as a material element within the meaning of Section 803,
subdivision (c), and the four-year limitations period of Section 801.5 applies to that offense.
(Ibid.)
          In People v. Bell, supra, 45 Cal.App.4th 1030, the court reached a similar conclusion
concerning an offense as to which an intent to defraud is not an element essential to conviction –
Section 115, subdivision (a), filing or recording a false document. (45 Cal.App.4th at pp. 1060-
1061.) The court in People v. Bell reasoned that the core purpose of Section 115, subdivision (a)
is to protect the integrity and reliability of public records from fraud. (Ibid.) Accordingly, that
offense involves fraud as a material element within the meaning of Section 803, subdivision (c)
and Section 801.5. (Ibid.)2
          Here, Section 484b makes it a crime for a contractor “. . . who receives money for the
purpose of obtaining or paying for services, labor, materials or equipment and willfully fails to
apply such money for such purpose by either willfully failing to complete the improvements for
which funds were provided or willfully failing to pay for services, labor, materials or equipment
provided incident to such construction, and wrongfully diverts the funds to a use other than that
for which the funds were received . . . .” We have not identified any published decision



2
 The court which decided People v. Bell expressly departed from that decision on an unrelated issue in the later case
of People v. Athar (2002) 105 Cal.App.4th 479, 129 Cal.Rptr. 351, 360.

                                                          7
answering the question of whether Section 484b either is or is not a crime involving fraud as a
material element for purposes of Section 803, subdivision (c).
        In People v. Howard (1969) 70 Cal.2d 618, our Supreme Court discussed in some great
detail the legislative purposes underlying Section 484b. In the course of that discussion, the
Court observed that “[i]t clearly appears that a contractor guilty of [violating Section 484b] has
also acted against good morals and fair dealing, that his conduct has necessarily prejudiced the
rights of homeowners and of those who may have provided financing, and that his acts likewise
constitute a ‘case of fraud’ within the exception to the constitutional ban on imprisonment for
debt.” (70 Cal.2d at p. 623, emphasis added.) Although the Court in People v. Howard made this
observation in the course of holding that Section 484b as then written did not violate the bar on
imprisonment for debt contained in Article I, Section 10 of the California Constitution, the
statement is a judicial interpretation of Section 484b which carries great weight. (People v.
Guthrie (1983) 144 Cal.App.3d 832, 839.)3
        The Supreme Court’s identification of preventing fraud on homeowners as a core purpose
of Section 484b has been echoed by the published decisions since People v. Howard. (E.g.,
People v. Butcher (1986) 185 Cal.App.3d 929, 937-938 [“The purpose of section 484b is to
punish fraudulent conversion.”]; People v. Worrell (1980) 107 Cal.App.3d 50, 55-56; People v.
Heitz (1983) 145 Cal.App.3d Supp. 8, 14-15.)
        Accordingly, we hold that the offense stated by Section 484b is a crime, “a material
element of which is fraud,” within the meaning of Section 803, subdivision (c). As such, it is
subject to the four-year limitations period of Section 801.5, not the three-year limitations period
of Section 801.




3
  The decision in People v. Howard preceded the amendment of Section 484b to eliminate the element of economic
loss to the property of the homeowner as a result of the diversion of construction funds, a circumstance which does
not affect our reliance upon that decision in this case.

                                                         8
                                        III.
                    PROSECUTION OF THE SECTION 484b CHARGE
                        IN THIS CASE IS NOT TIME-BARRED

       It is undisputed that the prosecution of this case began on October 16, 2009, and that the
acts which serve as the basis of the charged Section 484b offense occurred on or about April 5,
2006. Thus, the prosecution commenced within four years of the criminal act, within the
limitations period set forth in Section 801.5. Therefore, the trial court properly denied
appellant’s motion to dismiss on the ground of the bar of the statute of limitations. The charged
offense to which appellant entered his no contest plea is not time barred.
                                         CONCLUSION
       For the above reasons, we hereby AFFIRM the judgment of conviction and sentence.




                                                 9
