Filed 6/29/16 P. v. Leach CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----




THE PEOPLE,                                                                                  C080051

                   Plaintiff and Respondent,                                        (Super. Ct. Nos.
                                                                                 CM041594 & CM040367)
         v.

ERICA LYNN LEACH,

                   Defendant and Appellant.




         In case No. CM041594, defendant Erica Lynn Leach entered a no contest plea to
theft from an elder or dependent adult. (Pen. Code, § 368, subd. (d)(1).)1 The court
dismissed the remaining count (grand theft) with a waiver pursuant to People v. Harvey
(1979) 25 Cal.3d 754. In case No. CM040367, defendant entered a no contest plea to
forgery (§ 470, subd. (d)), reduced to a misdemeanor on the People’s motion. The court
dismissed the remaining counts (identity theft & misdemeanor grand theft) with a Harvey


1   Undesignated statutory references are to the Penal Code.

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waiver. The court also dismissed case No. CM040958 with a Harvey waiver.2 The court
sentenced defendant to county prison for the upper term of four years for elder theft and a
concurrent one-year term for misdemeanor forgery.
       Defendant appeals. She contends the trial court erroneously relied on certain
aggravating factors, that is, the vulnerability of the victim and that defendant took
advantage of a position of trust. As she claimed in the trial court, she argues these factors
are elements of the offense of elder theft. We find no error. Defendant also contends that
the trial court imposed an unauthorized fine under section 672. We conclude that the fine
was authorized under the offense statute, section 368, subdivision (d)(1), and will modify
the judgment to reflect the proper code section. As modified, we will affirm the
judgment.
                                          FACTS
       Defendant was a home care provider for Alice H., an elderly woman. Alice’s son
set up a bank account, gave Alice a bank card with the personal identification number
(PIN) written on a piece of paper, and put them in Alice’s wallet. Alice would give
defendant the bank card with a list of items to purchase. Defendant also “organized”
Alice’s jewelry. Several insured pieces were missing. In January and February 2013,
defendant stole $12,500 worth of property from Alice (case No. CM041594).
       In August 2013, defendant took a wallet from her neighbor and tried to use the
debit card to obtain cash from an automated teller machine (ATM). Defendant used the
card to make a purchase at two locations, one of which was a fast food restaurant ($34)
where defendant signed the neighbor’s name (case No. CM040958).




2  In case No. CM040958, defendant was charged with failure to appear with a special
allegation (§ 12022.1) after she failed to appear for further arraignment in case
No. CM040367.

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       The probation officer recommended that the court deny probation and impose the
upper term for elder theft (case No. CM040367). In recommending denial of probation,
the probation officer cited defendant’s minimization of her criminal behavior during the
probation interview; defendant’s lack of remorse; defendant’s failure to take
responsibility in that she “blamed her predicament on her drug and alcohol use and the
desire to please her husband”; defendant’s lack of sincerity in expressing her ambitions;
defendant was an active participant; the circumstances of the crime were more egregious
when compared to other instances, noting Alice was elderly and needed extra supervision
of a care provider; defendant took advantage of a position of trust, stealing $12,500 worth
of property in a short period of time; defendant’s crimes were increasingly serious,
having been previously convicted in 2003 of a theft-related offense; defendant’s inability
to comply with terms and conditions of probation given her “nomadic lifestyle, history of
alcohol and substance abuse, lack of family ties, and sporadic employment”; and
defendant posed a danger to others if not imprisoned. In recommending the upper term,
the probation officer cited the victim’s vulnerability; the monetary loss which exceeded
$12,000; the crime indicated planning in that defendant targeted elderly victims, gained
their trust, and then stole from them; defendant took advantage of a position of trust; and
defendant’s crimes were increasingly serious. The probation officer noted in mitigation
that defendant had completed two previous grants of probation in Minnesota. In
recounting the investigation, the probation officer noted that the daughter of another
elderly victim reported that during defendant’s care, there were purchases for fuel for a
vehicle but the victim did not own a vehicle. Defendant’s own relative turned defendant
in after defendant’s husband (the relative’s cousin) accused defendant of stealing from
her elderly clients and storing some of the stolen property at the relative’s house. Alice’s
son recovered some of Alice’s paintings and jewelry from the relative’s house.
       Defense counsel filed a statement in mitigation and sought a grant of probation
based on defendant’s lack of a prior felony record (two prior misdemeanor convictions).

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Defense counsel argued that defendant had entered a plea at an early stage of the
proceedings and, contrary to the probation officer’s recommendation, defendant was
remorseful. Defense counsel noted that defendant had applied for a residential treatment
program for her substance abuse problem. Defense counsel argued, “It goes without
saying that a person convicted of Section 368[, subdivision] (d), of the Penal Code, theft
from an elder or dependent adult, means that the victim is particularly vulnerable. Also,
when the theft is committed by someone whom the elder or dependent adult trusts, the
defendant, like Ms. Leach, has taken advantage of a position of trust.” Defense counsel
acknowledged that there was great monetary loss. He argued that the theft was “not
carried out with a great deal of sophistication.”
       At sentencing, the court stated it had read and considered the probation report,
various letters, and defendant’s statement in mitigation, and intended to deny probation
and impose the upper term in county prison with no mandatory supervision. The People
agreed.
       Defense counsel opposed the intended sentence, citing defendant’s lack of prior
felony convictions. He disagreed with the probation officer’s comment that defendant
minimized her criminal behavior and lacked remorse, noting that defendant had prepared
a written statement reflecting that she was remorseful and that she was seeking treatment
to address her addictive problems, thus taking responsibility. Defense counsel disagreed
with the probation officer’s listing of the factor that defendant was an active participant,
noting “that would pretty much make everybody inappropriate for probation.” Defense
counsel also disagreed with the probation officer’s statement that defendant’s crimes
were more egregious when compared to incidents of the same crime, stating simply that it
was “not true.” With respect to defendant’s conviction of theft from an elder, defense
counsel stated that by the nature of the offense, “unfortunately that means that she has
taken advantage of someone who is extremely vulnerable” and “took advantage of a
position of trust because she was a caregiver to the victim” which again, “given the

                                              4
nature of this crime it’s really endemic to the very charge itself.” Although the amount of
the victim’s losses was “a sizable amount,” defense counsel stated that he had seen
greater amounts in theft and fraud cases. Defense counsel took issue with the probation
officer’s evaluation that defendant’s crimes were increasing in seriousness (although
acknowledging defendant had a misdemeanor conviction in 2003) and with probation’s
comment that defendant’s willingness to comply with probation was suspect because of
her nomadic lifestyle (suggesting that would violate defendant’s rights to equal protection
& to associate). Defense counsel also noted that defendant had entered her pleas at an
early stage of the proceedings. He argued for drug treatment.
         The prosecutor opposed probation, noting that defendant had previously
completed drug treatment but had a pending driving under the influence charge in
Minnesota. The prosecutor argued that defendant’s offenses involved a certain amount of
sophistication, took “incredible” advantage of the situation with Alice, making her “much
more vulnerable than just the fact that she was elderly but that she was dependent on the
defendant for her care.” The prosecutor argued that defendant abused her position of
trust.
         Defense counsel responded that although defendant had relapsed after previous
treatment for her addiction, it did not mean she would never be able to resolve her
addiction problem.
         The trial court denied probation, citing the vulnerability of the victims, defendant
was an active participant in the crimes, the manner in which the crimes were committed
demonstrated criminal sophistication, defendant took advantage of a position of trust or
confidence to commit the crimes, and the likelihood that if not imprisoned, defendant
would be a danger to others. For elder theft, the court imposed the upper term, finding
the factors in aggravation outweighed those in mitigation. In aggravation, the court
found that Alice was “particularly” vulnerable, the manner in which the crime was
carried out indicated planning, and defendant took advantage of a position of trust or

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confidence. In mitigation, the court found defendant’s prior performance on probation
was satisfactory. In denying mandatory supervision, the court noted that defendant did
not have family ties in California and had expressed her desire to leave the state.
                                        DISCUSSION
                                               I
       Defendant contends the trial court erred in imposing the upper term for elder theft
in that it found in aggravation that the victim was vulnerable and defendant took
advantage of a position of trust, both of which, she argues, are elements of the offense.
We do not find any error.
       “The elder abuse law is intended to provide special protection for elder adults,
whose advanced age may render them particularly susceptible to criminal opportunists.”
(People v. Eastburn (2010) 189 Cal.App.4th 1501, 1506, fn. omitted.) “The Legislature
finds and declares that crimes against elders and dependent adults are deserving of
special consideration and protection, not unlike the special protections provided for minor
children, because elders and dependent adults may be confused, on various medications,
mentally or physically impaired, or incompetent, and therefore less able to protect
themselves, to understand or report criminal conduct, or to testify in court proceedings on
their own behalf.” (§ 368, subd. (a).) An elder is defined as someone who is “65 years of
age or older.” (§ 368, subd. (g).) A dependent adult is a person who is “between the ages
of 18 and 64, who has physical or mental limitations which restrict his or her ability to
carry out normal activities or to protect his or her rights, including, but not limited to,
persons who have physical or developmental disabilities or whose physical or mental
abilities have diminished because of age.” (§ 368, subd. (h).)
       Section 368 provides, in relevant part, as follows:
       “(d) Any person who is not a caretaker who violates any provision of law
proscribing theft, embezzlement, forgery, or fraud, or who violates Section 530.5
proscribing identity theft, with respect to the property or personal identifying information

                                               6
of an elder or a dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable. . . .”
       “A fact that is an element of the crime upon which punishment is being imposed
may not be used to impose a greater term.” (Cal. Rules of Court, rule 4.420(d).)
       The elements of a violation of section 368, subdivision (d) are: defendant
committed theft, embezzlement, forgery, fraud, or identity theft; the property taken or
personal identifying information used was owned by or that of an elder or dependent
adult; the property, goods, or services obtained was worth more than $950; and defendant
knew or reasonably should have known that the owner of the property or person to whom
the identifying information belonged was an elder or dependent adult. (CALCRIM
No. 1807.)
       Defendant was charged with and convicted of violating section 368, subdivision
(d), that is, a theft-related offense by a person who is not a caretaker against an elder or
dependent adult. It was not alleged that defendant was a caretaker. Alice was described
as “an elder and dependent adult.” (Italics added.) Alice’s age does not appear in the
record.
       The trial court found that Alice H. was “particularly” vulnerable. Defendant states
that she “does not argue that no elderly or dependent adult could ever be particularly
vulnerable, but that the facts of this case do not support that [Alice] was particularly
vulnerable.” We disagree.
       “ ‘As used in the context of [California Rules of Court,] rule 4.421(a)(3), a
“particularly vulnerable” victim is one who is vulnerable “in a special or unusual degree,
to an extent greater than in other cases. Vulnerability means defenseless, unguarded,
unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal
act. . . .” [Citation.]’ [Citation.]” (People v. Esquibel (2008) 166 Cal.App.4th 539, 558.)
       “[A]ggravating a sentence due to ‘particular vulnerability,’ where vulnerability is
based solely on age, is improper when age is an element of the offense. [Citations.]

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However, ‘particular vulnerability’ is determined in light of the ‘total milieu in which the
commission of the crime occurred. . . .’ [Citation.]” (People v. Dancer (1996)
45 Cal.App.4th 1677, 1693-1694 [discussing the young age of the victim of child
molestation], disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th
1117, 1123.)
       A particularly vulnerable victim of elder theft would be someone who is more
vulnerable than a victim of elder theft in other cases. Here, the trial court did not
expressly state what facts it relied upon to make the finding that Alice was “particularly”
vulnerable but it did not cite the victim’s age at all, let alone as the sole basis for the
finding. The record reflects that Alice was described as both elderly and dependent in
that her mental abilities were diminished. Not all elderly people have diminished mental
abilities. But here, Alice’s son had to write down Alice’s PIN on a piece of paper for her
to keep in her wallet with her bank card. Defendant admitted that she knew that Alice
was unable to remember things. Defendant stole numerous pieces of jewelry and
paintings from Alice who did not realize her loss until defendant’s relative turned
defendant in to the police. Using Alice’s bank card, defendant often purchased more than
what was on Alice’s grocery list without Alice recognizing what defendant was doing.
The trial court did not err in finding that Alice was “particularly” vulnerable based on her
age as well as her need for help and supervision due to her diminished mental abilities.
       Defendant contends the trial court erred in finding that defendant took advantage
of a position of trust or confidence to commit the offense. Defendant argues that a
position of trust is an essential element of the crime of elder theft by a caretaker or a
noncaretaker. (§ 368, subds. (d), (e).) Defendant argues that abuse of a position of trust
must be more than the normal abuse that is an element of the offense of elder theft. She
claims the record reflects that she worked with Alice for about two months and there is
not any evidence that she provided any special treatment to Alice. We conclude that a
position of trust is not an essential element of defendant’s crime.

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       A caretaker means “any person who has the care, custody, or control of, or who
stands in a position of trust with, an elder or a dependent adult.” (§ 368, subd. (i), italics
added.) A noncaretaker means any person who is not a caretaker who commits a theft-
related offense against an elder or dependent adult and knows or reasonably should know
that the victim is an elder or dependent adult. (§ 368, subd. (d).)
       In arguing that a noncaretaker is in a position of trust just like a caretaker,
defendant discusses legislative history (the statement of the bill’s author, the assembly’s
comment, & the legislative counsel’s digest), which we do not consider where, as here,
the statutory language is not ambiguous. “ ‘Our role in construing a statute is to ascertain
the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] In
determining intent, we look first to the words of the statute, giving the language its usual,
ordinary meaning. If there is no ambiguity in the language, we presume the Legislature
meant what it said, and the plain meaning of the statute governs. [Citation.]’ [Citation.]
Thus, ‘[o]nly when the language of a statute is susceptible to more than one reasonable
construction is it appropriate to turn to extrinsic aids, including the legislative history of
the measure, to ascertain its meaning.’ [Citation.]” (Kaufman & Broad Communities,
Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 220.)
       Defendant was hired to be a home care provider. Defendant was convicted of
elder theft by a noncaretaker. (§ 368, subd. (d).) Being a caretaker is not an element of
the offense of which defendant was convicted; thus, defendant did not stand “in a
position of trust.” (§ 368, subd. (i).)
       As previously discussed, defendant was a criminal opportunist and took advantage
of Alice’s diminished mental abilities when defendant was hired to help supervise Alice
who depended on defendant to do so. Defendant committed her offense over two months
and was able to steal over $12,000 worth of property (paintings, jewelry, & money). The
trial court properly cited in aggravation the fact that defendant took advantage of a
position of trust.

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         Moreover, the court also found that the manner in which the crime was carried out
indicated planning and demonstrated criminal sophistication. Defendant does not
challenge this factor on appeal. Defendant stole Alice’s jewelry and pawned it. When
defendant withdrew money from Alice’s bank account for Alice, defendant admitted
taking extra money for herself without Alice’s knowledge or consent. Defendant
recognized that Alice’s mental abilities were diminished. Defendant committed her
offense over a two-month period of time and most likely would have continued had she
not been reported to the police by her own relative. A single instance of stealing one
piece of insured jewelry would most likely have been sufficient to support defendant’s
conviction. Here, defendant’s offense was much worse, having taken other jewelry,
paintings, and money from Alice’s bank account, amounting to several acts over the two-
month period.
         We conclude that the trial court did not err in imposing the upper term for elder
theft.
                                              II
         For elder theft in case No. CM041594, the trial court imposed an $850 fine
pursuant to section 672.3 Because a felony violation of section 368, subdivision (d)(1)
specifies a fine up to $10,000 for the offense, defendant argues section 672 is
inapplicable.4 The People respond that defendant did not object to the trial court’s
reliance upon an improper statute so the issue is forfeited.



3 Section 672 provides: “Upon a conviction for any crime punishable by imprisonment
in any jail or prison, in relation to which no fine is herein prescribed, the court may
impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of
misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the
imprisonment prescribed.”
4 Section 368, subdivision (d)(1) sets forth the punishment: “By a fine not exceeding
two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not

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       The fine was authorized under section 368, subdivision (d)(1); the fine was thus
not authorized under section 672. Had either counsel objected, the trial court would have
undoubtedly cited the proper statutory authority. We will order the judgment modified to
set forth the proper statutory authority for the fine.
                                       DISPOSITION
       The judgment in case No. CM041594 is modified to provide that the proper
statutory authority for the $850 fine is section 368, subdivision (d)(1), rather than
section 672. The trial court is directed to prepare an amended abstract of judgment
accordingly and to forward a certified copy to the county prison. As modified, the
judgment is affirmed.



                                                     /s/
                                                   Blease, Acting P. J.


We concur:



  /s/
Duarte, J.



  /s/
Hoch, J.




exceeding one year, or by both that fine and imprisonment, or by a fine not exceeding ten
thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section
1170 for two, three, or four years, or by both that fine and imprisonment, when the
moneys, labor, goods, services, or real or personal property taken or obtained is of a
value exceeding nine hundred fifty dollars ($950).”

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