People v. Mercier CA4/1

Filed 6/10/21 P. v. Mercier CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077320
Plaintiff and Respondent,
v. (Super. Ct. No. SCE389186)
JEANNIE ELLEN MERCIER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Andrea S. Bitar, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and
Respondent.
Jeannie Ellen Mercier was supposed to care for her elderly aunt, who
was diagnosed with dementia and moved into an assisted living facility.
Despite receiving payments from her aunt’s long-term care insurance
company covering her aunt’s expenses at the facility, Mercier failed to pay
her aunt’s bills. She cashed out her aunt’s savings account and spent her
pension and Social Security income, mostly on casino and Facebook expenses.
When her aunt died, her bank accounts were empty, and she owed the
assisted living facility over $34,500.
A jury convicted Mercier of various theft-related offenses. On appeal,
Mercier contends her constitutional due process rights were violated by the
prosecution’s delay in bringing charges against her, but she fails to establish
prejudice from any delay, which was reasonably attributable to law
enforcement’s investigation of the allegations. Mercier also contends the trial
court erred in denying her motion for judgment of acquittal (Pen. Code,
§ 1118.1),1 arguing she had a good faith belief she was entitled to her aunt’s
money as compensation for taking care of her over the years. However, the
evidence presented at trial adequately supports the inference that Mercier
had the felonious intent required to support the convictions. We affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A felony complaint filed in March 2019 charged Mercier with financial
elder abuse (§ 368, subd. (e); count 1), grand theft (§ 487, subd. (a); count 2),
theft by embezzlement (§ 506; count 3), and identity theft (§ 530.5, subd. (a);
count 4). The complaint alleged the charged crimes were related felonies, a
material element of which was fraud, and that the resulting loss exceeded
$100,000, within the meaning of section 186.11, subdivision (a)(3), and
further alleged that Mercier would not be eligible for probation because she
unlawfully took in excess of $100,000 in the commission of the charged
crimes, within the meaning of section 1203.045.
1 Statutory citations are to the Penal Code.
2
At trial, the prosecution established that the victim, Delores M., had
worked for Pacific Bell for about 30 years before retiring in 1988. She owned
a home in San Diego where she had lived since 1968. She received income
from Social Security and a pension. She also owned stocks and had other
investments. She had an insurance policy for long-term care and a life
insurance policy. By 2001, her husband had passed away, and Delores lived
alone.
Mercier—Delores’s niece—moved in with her in 2001. At the time,
Mercier was in her mid-40’s, and Delores was around 70 years old. Mercier
did not pay rent. In 2004, Mercier borrowed $2,000 from her sister
S. Anderheggen. Mercier told Anderheggen she needed the money for
textbooks, fixing the brakes on her truck, and a few other things, which did
not seem unusual to Anderheggen until she learned that Mercier had also
borrowed $2,000 from Delores, purportedly to pay the same expenses.
Mercier only repaid Anderheggen half of what she borrowed. Anderheggen
testified that there were times when Mercier was working full time but did
not have money to pay expenses like car repairs or insurance, and Mercier
would ask her aunt for money.
In 2004, Delores executed a notarized power of attorney designating
Mercier with the power of attorney and Anderheggen as the successor power
of attorney in the event Delores died or became incapacitated. That same
year, Delores also executed a trust agreement indicating that her property
was to be distributed evenly between Mercier and Anderheggen upon
Delores’s death. Mercier was designated as the trustee and Anderheggen
was designated as the successor trustee.
Mercier became unemployed in 2012.
3
In 2013, Delores suffered from anxiety, deteriorating eyesight, and
other health problems. In December of that year, Mercier called the
paramedics after Delores fell and was unable to get up. Delores spent three
to four weeks in a skilled nursing facility during December 2013 and January
2014. Anderheggen and Mercier went through Delores’s documents at that
time, to get Delores’s “affairs in order,” because they believed she was near
the end of her life. When Anderheggen visited Delores at the nursing facility,
Delores seemed “pretty much comatose.” Anderheggen did not believe
Delores could manage her own care or finances. Mercier told Anderheggen a
doctor had diagnosed Delores with dementia or Alzheimer’s.
Anderheggen recalled from the documents she reviewed at that time
that Delores had “substantial amounts” in her bank accounts, perhaps
around $50,000. Mercier later gave Anderheggen $10,000 as her half of
Delores’s money, but Anderheggen subsequently gave $8,800 of that money
back when Mercier claimed she needed it to pay Delores’s monthly expenses.
At that time, Anderheggen did not suspect Mercier was committing financial
abuse.
Anderheggen testified that, after January 2014, Delores’s health
improved. Still, her eyesight and hearing were poor, and her dentures
needed repair. Anderheggen felt Delores was not being appropriately cared
for and wanted to have her dentures and hearing aids repaired and her
eyesight checked, but Mercier, who was in control of Delores’s finances,
resisted. When Delores was lucid, she would express anxiety about her
financial situation to Anderheggen. Anderheggen testified that, “during her
lucid moments[, Delores] knew what her financial status was and she knew
what [Mercier’s] habits were, so she was concerned.”
4
In February 2014, Delores moved into an assisted living facility. John
Gaidry, an internal medicine doctor with a practice in geriatrics, reviewed
the physician’s report prepared in January 2014 for Delores’s admission to
the assisted living facility. Delores was diagnosed with dementia with
behavioral disturbances, difficulty walking, and abnormal posture. Delores
was described as exhibiting “[c]onfused, disoriented, inappropriate behavior,
aggressive behavior, [sun]downing behavior, . . . [ability] to follow
instructions, depress[ion].” In January 2014, Dr. Gaidry signed a letter
noting that Delores was no longer able to make personal, medical, or
financial decisions. Dr. Gaidry did not independently recall treating Delores,
but based on the information in the medical records, he opined that a patient
in Delores’s condition would be capable of reliably conveying her emotional
state but would be incapable of understanding the nature and consequences
of gifting property.
In June or July 2014, Anderheggen approached San Diego County
Adult Protective Services as well as local police and sheriff’s departments
because she suspected Mercier was taking advantage of her position as the
power of attorney. In September 2014, she confronted Mercier with
allegations of lack of care and mismanagement of finances and requested an
accounting of Delores’s funds. In October 2014, Mercier sent Anderheggen an
e-mail stating that Delores had been diagnosed by three separate doctors as
having advanced dementia and that Delores was incapable of making her
own financial decisions. Mercier acknowledged that Anderheggen wanted to
receive Delores’s bank records, and threatened to obtain a restraining order
preventing Anderheggen from contacting Mercier. Around that time, when
Delores wanted to change her power of attorney designation from Mercier to
5
Anderheggen, Anderheggen helped Delores speak with an administrator at
the assisted living facility, but they were unsuccessful in making a change.
At trial, the prosecutor showed Anderheggen checks drawn from
Delores’s account, dated between March and December 2014 and made
payable to Delores or to Mercier. Anderheggen testified the handwriting
appeared to be Mercier’s and that Delores would have been unable to write
checks during that time because her hands shook and her sight was poor.
K. Franklin, the administrator at the assisted living facility, testified
that Delores was a resident at the facility from February 2014 until August
2015. Facility documents indicated that Mercier was the responsible party
for Delores for financial and healthcare purposes. According to Franklin,
Mercier visited Delores once or twice a month (“if that”) and sometimes
brought her food. The facility billed Delores’s monthly invoices to Mercier
but also submitted them for payment to Delores’s insurance company.
Franklin understood that the insurance company would send Mercier a check
for Delores’s benefit, and Mercier would then write a check to the assisted
living facility. In May 2014, Franklin noticed that payments were not being
made. When questioned, Mercier told Franklin she was not receiving
payments and suggested the insurance company was not receiving the
invoices. Franklin tried to work with Mercier to straighten out the payment
issue and “wanted to believe that [Mercier] was . . . working with [the
insurance company] to help get payments,” but when Franklin ultimately
contacted the insurance company, they confirmed they had made a payment
for each billing period. Because of the missed payments from Mercier,
Delores was “downgraded” from a private room to a shared room. When
Delores left the facility, she had outstanding balances exceeding $34,500.
6
Mercier moved to Oregon in May 2015. She moved Delores to Oregon
to live with her in August 2015. Delores died in October 2015. The cause of
death was listed as Alzheimer’s disease. When she died, she had no cash
remaining in her accounts and there were no proceeds from the sale of her
home. Delores’s life insurance policy paid $17,000, of which Anderheggen
received $5,000.2 There was no other distribution of Delores’s estate.
K. Ingram, a senior specialist with San Diego County Adult Protective
Services (APS), first received a referral regarding Delores from her sister
(Mercier’s mother) in June 2014. When Ingram met with Delores at the
assisted living facility, Delores told her she was concerned that Mercier was
spending her money and living in her home, which had a reverse mortgage on
it. Ingram interviewed Mercier by phone. Mercier provided Ingram with “a
lot of . . . background information on [Delores] and her medical problems and
how she ended up in the facility” but did not talk about the financial abuse
allegations. They agreed to speak again. In a subsequent conversation,
Mercier told Ingram she had cashed out $50,000 of Delores’s savings and
spent it on “household bills” and “bills for . . . Delores,” and she was using
Delores’s Social Security and pension of $2,200 per month “to pay the bills
and to live on.” Mercier did not notify the mortgage company that Delores
was no longer in the home because the house “was going to be willed to her.”
Mercier told Ingram Delores’s long-term care policy paid $188 per day for
Delores’s care, which she claimed cost $130 per day.
Mercier’s disclosures caused Ingram concern; she told Mercier the
money she managed for Delores had to be used or saved for Delores’s benefit,
that she should notify the reverse mortgage company Delores was no longer
2 Anderheggen agreed to receive $5,000, instead of the $8,500 she was
entitled to, because Mercier said she needed the money to repair her truck.
7
living in the home, and that she should keep complete and accurate records of
Delores’s finances and how she managed them. Ingram informed Mercier
that she wanted to meet to discuss her management of her aunt’s finances,
and they made an appointment to meet in person; however, Mercier later
called to postpone that meeting.3 They never met in person.
Based on her conversations with Mercier, Ingram confirmed the
allegations of financial abuse. In July 2014, Ingram referred the case to the
California Department of Justice.4
In September 2014, a special agent with the California Department of
Justice Bureau of Medi-Cal Fraud and Elder Abuse, Jeffrey Colburn, was
assigned to investigate an allegation of financial abuse of Delores by Mercier.
Special Agent Colburn interviewed Mercier’s mother, the reporting party,
who informed him that Mercier was spending Delores’s money. In January
2015, he interviewed Delores at the assisted living facility.5 Delores told him
she did not give Mercier permission to spend Delores’s money, except to pay
for Delores’s doctor visits and prescription medications.
3 Mercier’s attorney contacted Ingram to schedule an appointment, but
Ingram did not return the attorney’s call. At trial, Ingram could not recall
why she did not call the attorney other than stating that “our cases are
confidential.”
4 Ingram also made referrals to the local police department and the San
Diego County Public Guardian, an agency which conducts investigations and
petitions the court for conservatorship of individuals unable to manage their
funds.
5 Special Agent Colburn testified that he made sure to interview Delores
in the morning based on the reporting party’s advice that Delores was more
“with it” earlier in the day. He acknowledged that Delores seemed
“somewhat confused at times” but she was able to answer some of his
questions and “her answers were appropriate.”
8
Special Agent Colburn obtained records from a local casino showing
that, during 2013, Mercier deposited and/or played approximately $170,000
and received back approximately $172,000, with an approximate net win of
$1,500. During 2014, Mercier deposited and/or played approximately
$422,000 and received back approximately $407,000, with an approximate
net loss of $14,000.6 A representative from another local casino testified
that, during 2013, Mercier won nearly $15,000 worth of jackpots but
experienced a net loss of over $10,600 and, during 2014, she won over
$61,000 worth of jackpots but experienced a net loss of over $14,700.
During his investigation, Special Agent Colburn was unable to uncover
any information that showed Mercier was gainfully employed.
In February 2015, Special Agent Colburn obtained a search warrant for
Delores’s and Mercier’s bank records. This initial warrant sought bank
documents from December 1, 2013 through January 31, 2015. Colburn
subsequently suffered an accident at work, which resulted in the case being
reassigned to Investigative Auditor Kelvin Trieu in March 2016.
Investigative Auditor Trieu obtained additional records dating from
January 31, 2015 through December 31, 2015. He began reviewing and
analyzing the subpoenaed bank records on November 1, 2016.7
6 These amounts were confirmed through the testimony of the casino’s
marketing strategy manager based on the casino’s electronic records.
7 At trial, Trieu testified that he “lost count” of the pages of bank records
he analyzed in connection with the case. There were 200 pages of bank
statements alone. Each transaction reflected on the bank statements was
accompanied by supporting documentation and receipts. He last received
financial records from the bank in August 2018; before this, he was unable to
complete his analysis.
9
Delores and Mercier had accounts at the same bank.8 There were also
two credit card accounts. Investigative Auditor Trieu testified that, for
purposes of efficiency, and due to his lack of knowledge with respect to
charges incurred prior to the statement periods, he attributed all payments
made to the credit card accounts as being made for Delores’s benefit. He
further testified that, in performing his analysis, he strove to be
“conservative and consistent,” and when he was confronted with questionable
payments (for example, for credit card payments, gasoline, or bank fees), he
attributed them as being made “for the benefit of Delores.”
Investigative Auditor Trieu’s investigation revealed that an insurance
company made payments of over $75,500 on Delores’s long-term care policy,
but only about $64,000 of those payments were deposited into Delores’s bank
accounts. Initially, the checks were issued to Delores at her San Diego home
address, where Mercier was living. Beginning in May 2015, when Mercier
moved to Oregon, the checks were sent to an Oregon address.
The bank records reflected Delores received income payments from
Social Security and her pension. Through his analysis of bank account
transactions, Investigative Auditor Trieu determined that Mercier spent over
$122,250 on casino and Facebook expenses during the 16-month period from
January 2014 through April 2015 (when Delores was in the assisted living
facility). Analyzing the bank records and financial information spanning the
entire two-year period, Investigative Auditor Trieu concluded that Mercier
8 Delores’s account had five “subaccounts”: a primary savings account, a
checking account, an “11-month liquid certificate,” a money market and
savings accounts, and credit card account. Mercier’s account had two
“subaccounts”: a checking and a savings account. Delores was listed as a
joint owner of Mercier’s account.
10
“overspent” approximately $161,000 of Delores’s money on payments not
made for Delores’s benefit.
During his investigation, Investigative Auditor Trieu provided financial
documents to an investigator from the Medicaid Fraud Unit of Oregon’s
Department of Justice; that investigator interviewed Mercier in Oregon in
April 2017. Mercier told the investigator she had moved from Oregon to
California in 2001 to live with Delores and, since 2012, was not employed, but
rather spent her time taking care of her aunt. The investigator showed
Mercier documents reflecting financial transactions from her and Delores’s
bank accounts. Mercier admitted that she had made the casino and Facebook
expenditures reflected in the records during the time her aunt was living at
the facility. Mercier said she felt the money “was compensation . . . she was
owed for the time that she had spent prior to her aunt going into the nursing
home, taking care of her aunt.” Mercier told the investigator she believed she
was entitled to $300 per month for “power of attorney fees,” and that she
went to the casinos because she needed a break from taking care of her aunt.
Mercier also admitted she made expenditures from Delores’s account to her
son’s prison trust account when Delores was living in the facility. She told
the investigator that Delores had sent her son money before and so she
continued to send it after Delores moved into the facility. Mercier eventually
told the investigator “she figured that maybe she had spent money that she
shouldn’t have.”
An attorney and law professor specializing in trust and estate law
testified as an expert for the prosecution. He testified that the power of
attorney, also known as an attorney in fact or agent, has a responsibility to
hold and maintain the principal’s assets for the benefit of the principal and to
act on the principal’s behalf, for the principal’s benefit. The agent owes five
11
legal duties to the principal: to observe the standard of care that a prudent
person would observe in dealing with the property of another person; to
ensure that the principal’s assets are kept in the principal’s name and are not
commingled with the agent’s own assets; to act solely in the principal’s
interest and for the benefit of the principal and to avoid conflicts of interest;
to communicate so that the principal is aware of what the agent is doing and
the agent knows what the principal wants; and to maintain receipts and
records for transactions conducted on the principal’s behalf. An agent is
entitled to reasonable compensation, which in San Diego is around $30 to $40
per hour.
The expert testified that the only services Mercier properly performed
as Delores’s agent when Delores was living in the facility were ensuring the
invoices were sent to the insurance company and depositing the insurance
checks. These services could not have accounted for over $160,000 in
reasonable compensation. The expert would allocate one hour per month for
these services.
The expert testified that it would be a violation of the agent’s legal
duties to accept a gift from the principal, knowing the principal lacked the
capacity to gift it. An agent who uses a principal’s money to gamble at a
casino is violating her legal duties by acting outside the standard of care of
what a prudent person would do in dealing with another’s property, by failing
to act solely in the principal’s interest, and by creating a conflict of interest.
Two witnesses were called to testify for the defense. A. Castillo was
employed as a certified nursing assistant and medical technician at the
assisted living facility when Delores lived there. Castillo testified she took
care of Delores; they were very close and had a good relationship. Castillo
saw Mercier at the facility once or twice a week. Mercier visited more often
12
in the beginning and “in the end not so much because she was working on the
house.” Mercier frequently brought Delores food, and if Delores requested
anything, like pants, a shirt, or skin cream, Castillo would call Mercier, and
Mercier would bring it. Castillo was surprised when Mercier moved Delores
from the facility because Delores was happy there.
Delores’s long-time friend, B. Potter, testified she visited Delores at the
assisted living facility several times. Potter recalled that every time she
visited Delores, Delores stated she did not want to die in the facility, and she
wanted to go to Oregon with Mercier. Potter emphasized the facility was a
“happy” and “nice” place, but Delores did not want to stay there.
During closing arguments, the prosecutor argued the evidence
overwhelmingly supported the conclusion that Mercier stole well in excess of
$100,000 of her aunt’s money and used it for her own purposes—mostly
casino gambling and Facebook—while failing to pay her aunt’s bills, causing
Delores to be downgraded to a shared room at the assisted living facility, and
ultimately moved Delores away to Oregon, where she died in debt. The
defense argued Mercier was open and honest with investigators about
spending the money and truthfully believed she was entitled to it as
compensation for taking care of her aunt during the years before she moved
into the assisted living facility.
The jury found Mercier guilty on all counts and found true the
allegation that her conduct resulted in a loss exceeding $100,000 with respect
to counts 1 through 3 only. The trial court struck the section 186.11
allegation “for all purposes” as to each of the counts and sentenced Mercier to
the midterm of two years on count 2 and imposed but stayed terms on
counts 3 and 4.
13
DISCUSSION
I
Precharging Delay
A. Applicable Law
“A defendant’s state and federal constitutional speedy trial rights (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1) do not attach before the
defendant is arrested or a charging document has been filed. [Citation.]
Nonetheless, a defendant is not without recourse if a delay in filing charges is
prejudicial and unjustified. The statute of limitations is usually considered
the primary guarantee against overly stale criminal charges [citation], but
the right of due process provides additional protection, safeguarding a
criminal defendant’s interest in fair adjudication by preventing unjustified
delays that weaken the defense through the dimming of memories, the death
or disappearance of witnesses, and the loss or destruction of material
physical evidence [citation].” (People v. Abel (2012) 53 Cal.4th 891, 908
(Abel).) “A defendant seeking relief for undue delay in filing charges must
first demonstrate resulting prejudice, such as by showing the loss of a
material witness or other missing evidence, or fading memory caused by the
lapse of time.” (Ibid.)
“A [due process] claim based upon the federal Constitution requires a
showing that the delay was undertaken to gain a tactical advantage over the
defendant.” (People v. Catlin (2001) 26 Cal.4th 81, 107; see United States v.
Lovasco (1977) 431 U.S. 783, 795 (Lovasco).) Under California constitutional
standards, both negligent and purposeful delay in bringing charges may,
“when accompanied by a showing of prejudice, violate due process.” (People v.
Nelson (2008) 43 Cal.4th 1242, 1255 (Nelson).) However, if the delay was
14
merely negligent, a greater showing of prejudice is required to establish a due
process violation. (Id. at pp. 1255-1256.)
Because California law is at least as favorable for the defendant with
respect to the justification for the delay, California courts apply the
California constitutional due process standard. (People v. Cowan (2010)
50 Cal.4th 401, 430-431 (Cowan); Nelson, supra, 43 Cal.4th at p. 1251 [“[T]he
exact standard under [the federal] Constitution is not entirely settled” but
California law “is at least as favorable for defendant in this regard,” so “we
can and will apply California law.”].)
“If the defendant establishes prejudice, the prosecution may offer
justification for the delay; the court considering a motion to dismiss then
balances the harm to the defendant against the justification for the delay.”
(Nelson, supra, 43 Cal.4th at p. 1250.) If the defendant does not establish
prejudice, there is no need for the court to determine if the delay was justified
or engage in the balancing process. (Serna v. Superior Court (1985) 40 Cal.3d
239, 249 (Serna).)
“Prejudice is a factual question to be determined by the trial court.
(People v. Hill (1984) 37 Cal.3d 491, 499 (Hill).) “We review for abuse of
discretion a trial court’s ruling on a motion to dismiss for prejudicial
prearrest delay [citation], and defer to any underlying factual findings if
substantial evidence supports them [citation].” (Cowan, supra, 50 Cal.4th at
p. 431.)
B. Additional Background
APS specialist Ingram first received a referral regarding Delores in
June 2014. After investigating, Ingram referred the case to the California
Department of Justice, the local police department, and the San Diego
County Public Guardian in July 2014.
15
Special Agent Colburn of the California Department of Justice was
assigned to the case in September 2014. He interviewed Delores at the
assisted living facility in January 2015. Colburn obtained records from local
casinos demonstrating that Mercier had gambled significant sums of money
during 2013. In February 2015, Special Agent Colburn obtained a search
warrant for Delores’s and Mercier’s bank records. In May 2015, Mercier
moved to Oregon and then moved Delores to Oregon, where she died in
October 2015.
Special Agent Colburn suffered an accident at work which prompted
the reassignment of the case to an investigative auditor in March 2016. The
investigative auditor obtained a second search warrant for bank records
covering an expanded scope of time, and, in November 2016, the auditor
began an extensive analysis of the financial documents, which were so
numerous the auditor “lost count” of the number of pages.
After receiving some of the documents and information from
California’s investigators, an investigator from the Oregon Department of
Justice interviewed Mercier in April 2017 in Oregon. Mercier claimed to
have been unemployed and caring for Delores since 2012. Mercier admitted
she had made the gambling and Facebook expenditures, claimed she
considered that money to be compensation for time she spent as Delores’s
caregiver, and acknowledged that “maybe she had spent money that she
shouldn’t have.”
The investigative auditor from California’s Department of Justice
received a final batch of financial records from the bank on August 14, 2018;
only then was he able to complete his analysis.
16
A warrant for Mercier’s arrest was issued in March 2019, and in May
she was arrested in Oregon and extradited to California. Mercier’s trial was
conducted during November and December 2019.
Prior to trial, Mercier moved to dismiss the case, claiming the delay in
bringing the charges violated Mercier’s due process rights. Mercier argued
that during the delay, Delores died, causing her to be unable to testify in
Mercier’s defense. Mercier posited that Delores would have “testif[ied] that
her niece was permitted to sell her belongings and accept payment for the
care [Mercier] provided to [Delores] in her old age . . . .” Mercier further
argued that the delay caused witnesses’ memories to dim and rendered “key
evidence” unavailable, seriously impairing her defense. In opposition, the
prosecutor contended Mercier had not demonstrated “actual or substantial
prejudice,” and further contended that any prefiling delay was reasonably
attributable to the duration and thoroughness of law enforcement’s
investigation. The prosecutor argued that Mercier had been interviewed
during the summer of 2014 and thus was on notice regarding allegations of
financial abuse. Prior to trial, the trial court indicated its tentative decision
was to deny the motion, as Mercier had failed to make a showing of prejudice.
The trial court took the matter under submission so that it could consider the
evidence offered at trial. At the close of the prosecution’s case, counsel
renewed Mercier’s motion to dismiss for violating her due process rights. The
trial court denied the motion, stating, “Any prejudice suffered by the defense
is miniscule as it pertains to the issues at hand. There is nothing to suggest
that Ms. Mercier’s case would have been any better off had it been tried any
time sooner than it was. The issue of fading memories pertain[s] to a lot of
tangential matters, nothing this [c]ourt deems as pivotal to a determination
whether or not this defendant did or did not commit the crimes as alleged.”
17
C. Analysis
Mercier contends reversal is warranted because the delay in bringing
charges violated her due process rights. She argues she suffered prejudice
because during the delay, Delores died and the memories of three witnesses
faded. Mercier contends that Delores’s testimony would have supported
Mercier’s claim that expenditures were made as compensation for the many
years Mercier spent caring for Delores. Evidence indicated that by January
2014—months before initial allegations of wrongdoing were made in June
2014—Delores’s dementia was so advanced that she was already incapable of
making personal, medical, and financial decisions, and Mercier, as her power
of attorney and designated trustee, was entrusted with responsibility for
Delores’s finances. Consistent with the expert’s testimony, even if Delores
had gifted her money to Mercier at this point, it would have been a violation
of Mercier’s duties to accept the gift knowing that Delores lacked the capacity
to gift it. Moreover, Mercier’s contention that Delores’s testimony would have
been favorable to her defense is contradicted by Delores’s statements to
Special Agent Colburn in January 2015 that Mercier did not have permission
to spend her money, except to pay medical expenses. There is no evidentiary
support for Mercier’s claim that, had Delores been capable of testifying, her
testimony would have supported Mercier’s defense. Mercier’s claim of
prejudice on this basis is purely speculative. (People v. Jones (2013)
57 Cal.4th 899, 923 (Jones) [trial court properly rejects claim of precharging
delay where defendant’s “evidence of prejudice is speculative”].) Based on
Delores’s statements to Mercier’s sister and the APS specialist, there was no
reason to believe that Delores “would have supplied exonerating, rather than
incriminating, evidence” if she had testified at trial. (People v. Cordova
(2015) 62 Cal.4th 104, 120.)
18
Mercier further argues that she was prejudiced because three
witnesses had lapses of memory when they testified at trial. She fails to
demonstrate, however, how any witness’s memory lapse caused her prejudice.
The first witness, Dr. Gaidry, the admitting physician at the assisted living
facility, had no independent recollection of treating Delores, but he was able
to rely on records completed at the time he provided services to provide
relevant testimony. Mercier claims the doctor was unable to provide “specific
testimony regarding [Delores’s] mental state,” but he testified regarding
Delores’s documented dementia diagnosis and explained that she exhibited
“[c]onfused, disoriented, inappropriate behavior, aggressive behavior,
[sun]downing behavior,” and depression. Dr. Gaidry also testified regarding
his records which documented Delores’s inability due to dementia to make
personal, medical, or financial decisions. Although he could not
independently recall treating Delores, Dr. Gaidry was able to opine, based on
the information contained in the medical records, that a patient in Delores’s
condition would be capable of reliably conveying her emotional state but
would be incapable of understanding the nature and consequences of gifting
property.
The second witness, K. Franklin, an administrator at the assisted
living facility where Delores was admitted in February 2014, could not
independently remember how long Delores stayed at the facility or specific
details regarding payment for Delores’s care, but she was able to refer to
facility records that established that Mercier was the responsible party for
Delores for financial and healthcare purposes. She recalled missed payments
on Delores’s behalf and further recalled working with Mercier to ensure the
insurance company received the monthly invoices. She testified she “wanted
to believe that [Mercier] was . . . working with [the insurance company] to
19
help get payments,” but when she ultimately contacted the insurance
company, it confirmed it had made payments for each billing period—casting
doubt on Mercier’s suggestion that the insurance company was to blame for
the missed payments. She further recalled that, due to the missed payments,
Delores was “downgraded” from a private room to a shared room.
The third witness, K. Ingram, the APS specialist who performed the
initial investigation and referral of the case, was unable to independently
recall some specific information relating to the investigation, but she was
able to refresh her memory with her notes and report prepared in connection
with that investigation. She testified that she confirmed the allegations of
financial abuse based on Mercier’s statements that she had cashed out
$50,000 of Delores’s savings and spent it on “household bills” and “bills
for . . . Delores,” and that she was using Delores’s Social Security and pension
“to pay the bills and to live on.”
Although these three witnesses were unable to recall certain specific
facts during their testimony, each was able to refresh his or her recollection
with documents and was thereafter able to testify regarding relevant
material facts. “Prejudice to a defendant from precharging delay is not
presumed.” (Abel, supra, 53 Cal.4th at pp. 908-909.) Mercier failed to make
an affirmative showing of prejudice here and her conclusory statements
regarding the witnesses’ faded memories are insufficient to meet her burden.
(See id. at p. 909 [“defendant made no showing that [a witness’s] recall would
have been more specific had she been contacted earlier”]; Serna, supra,
40 Cal.3d at p. 250 [showing of actual prejudice “ ‘must be supported by
particular facts’ ” and not “ ‘by bare conclusionary statements’ ”].) As to
Dr. Gaidry, Mercier contends he “could only testify as to generalities” rather
than provide “specific testimony regarding [Delores’s] mental state.” But as
20
already noted, the doctor was able to refresh his recollection and testify based
on contemporaneously prepared medical records documenting Delores’s
condition. Mercier does not explain how additional testimony regarding
Delores’s mental state while at the assisted living facility would benefit,
rather than harm, her defense. Mercier’s arguments regarding the
remaining witnesses are similarly conclusory and speculative. She contends
the administrator did not independently remember how long Delores stayed
at the assisted living facility or “details . . . regarding payment for [Delores’s]
care.” But she does not explain why these details were needed to establish
the amount of funds Mercier spent on herself, as she contends, or why the
actual financial records available to her (and her own admissions) were not
sufficient for this purpose. And while Mercier contends the APS specialist
“could only proceed based on her notes or her report,” she acknowledges the
witness was able to refresh her recollection. As already discussed, this
witness was able to testify on relevant issues.
In sum, Mercier does not adequately explain what evidence was
rendered unavailable or how her defense was impaired because of the
witnesses’ dimmed memories. Mercier has therefore failed to establish any
prejudice from the delay. The trial court’s determination that any prejudice
from the delay was “miniscule” is thus supported by substantial evidence.
(Hill, supra, 37 Cal.3d at p. 499; Cowan, supra, 50 Cal.4th at p. 431.)
Even assuming Mercier sufficiently established some prejudice due to
the lapse in time between the allegations of misconduct and the criminal
prosecution, any prejudice was outweighed by the prosecution’s need to fully
investigate the allegations before bringing charges. “[I]nvestigative delay
does not deprive [a defendant] of due process, even if [the] defense might
21
have been somewhat prejudiced by the lapse of time.” (Lovasco, supra,
431 U.S. at p. 796.)
Mercier contends the investigative delay amounted to a “failure to
attend to the case.” But the evidence presented at trial demonstrated that
there were reasonable explanations for any delay. An initial allegation of
financial abuse was made in June 2014 and investigated by APS before that
agency made its referral to law enforcement. When Special Agent Colburn
initiated an investigation for the Department of Justice, he interviewed
Delores, uncovered evidence regarding Mercier’s gambling expenditures, and
obtained a search warrant for bank records. An accident prompted the case
to be transferred to an auditor who thereafter obtained an additional search
warrant covering an expanded scope of time. Upon obtaining the financial
records, the auditor conducted a painstaking review of voluminous financial
documents. Mercier’s move out of state required California investigators to
coordinate with law enforcement in Oregon, who interviewed Mercier in April
2017. The investigative auditor received a final batch of financial records in
August 2018, after which he was able to complete his analysis. Charges
against Mercier were filed shortly thereafter in March 2019. As the Attorney
General points out, “[Mercier] cannot show negligence simply because her
case may not have been the California Department of Justice’s highest
priority.” Indeed, “[a] court may not find negligence by second-guessing how
the state allocates its resources or how law enforcement agencies could have
investigated a given case. . . . ‘Thus, the difficulty in allocating scarce
prosecutorial resources (as opposed to clearly intentional or negligent
conduct) [is] a valid justification for delay . . . .’ [Citation.] It is not enough
for a defendant to argue that if the prosecutorial agencies had made his or
22
her case a higher priority or had done things a bit differently they would have
solved the case sooner.” (Nelson, supra, 43 Cal.4th at pp. 1256-1257.)
“Against [Mercier’s] weak showing of prejudice, the prosecution’s
justification for the delay was strong. The delay was ‘investigative delay,
nothing else.’ ” (Cowan, supra, 50 Cal.4th at p. 434.) “Rather than deviating
from elementary standards of ‘fair play and decency,’ a prosecutor abides by
them if he refuses to seek indictments until he is completely satisfied that he
should prosecute and will be able promptly to establish guilt beyond a
reasonable doubt.” (Lovasco, supra, 431 U.S. at p. 795; see Nelson, supra,43 Cal.4th at p. 1256 [justification for the delay is strong when there is
“investigative delay, nothing else.”].) Mercier has not established she was
deprived of due process. The trial court did not abuse its discretion when it
denied Mercier’s motion to dismiss for prejudicial precharging delay. (See
Cowan, supra, 50 Cal.4th at p. 431.)
II
Motion for Judgment of Acquittal
At the close of the prosecution’s case, Mercier moved to dismiss the case
pursuant to section 1118.1. The trial court denied the motion. Mercier now
contends that, because she believed in good faith she was entitled to use
Delores’s funds for herself, she lacked the requisite intent to commit the
charged crimes.
Section 1118.1 provides for entry of judgment of acquittal if the
evidence is insufficient to sustain a conviction on appeal. (Jones, supra,
57 Cal.4th at p. 964.) “ ‘The test applied by the trial court in ruling on a
motion for acquittal is the same test applied by the appellate court in
reviewing a conviction for sufficiency of the evidence, namely, to determine
whether from the evidence then in the record, including reasonable
23
inferences to be drawn therefrom, there is substantial evidence of the
existence of every element of the offense charged.’ ” (Ibid.)
“ ‘In reviewing a challenge to the sufficiency of the evidence, we do not
determine the facts ourselves. Rather, we “examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence.’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1215 (Houston).)
Mercier was convicted on four theft crimes: financial elder abuse,
grand theft, theft by embezzlement, and identity theft.
Financial elder abuse makes it a crime for “[a] caretaker of an elder” to
commit “theft, embezzlement, forgery, or fraud . . . with respect to the
property or personal identifying information of that elder . . . .” (§ 368,
subd. (e); CALCRIM No. 1807.) A person is guilty of theft if she “feloniously
steal[s or] take[s] . . . away the personal property of another,
or . . . fraudulently appropriate[s] property which has been entrusted
to . . . her . . . .” (§ 484, subd. (a).)
“ ‘ “The crime of grand theft is complete when a man takes property not
his own with the intent to take it, and a defendant may be convicted of grand
theft upon proof of facts establishing (a) embezzlement, (b) larceny or
(c) obtaining property under false pretenses. . . .” ’ ” (People v. Hussain (2014)
231 Cal.App.4th 261, 272, fn. 5; § 487, subd. (a) [grand theft requires theft of
property with a value exceeding $950]; see also CALCRIM Nos. 1800 and
1801.)
24
Theft by embezzlement occurs when “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 . . . 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; §§ 503 and 506; see also CALCRIM
No. 1806.)
Identity theft requires a showing that “(1) that the person willfully
obtain personal identifying information belonging to someone else; (2) that
the person use that information for any unlawful purpose; and (3) that the
person who uses the personal identifying information do so without the
consent of the person whose personal identifying information is being used.”
(People v. Barba (2012) 211 Cal.App.4th 214, 223; § 530.5, subd. (a);
CALCRIM No. 2040.)
“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 . . . intent to steal[] of that
offense.” (People v. Tufunga (1999) 21 Cal.4th 935, 938; § 511 [“Upon any
indictment for embezzlement, it is a sufficient defense that the property was
appropriated openly and avowedly, and under a claim of title preferred in
good faith, even though such claim is untenable. But this provision does not
excuse the unlawful retention of the property of another to offset or pay
demands held against him.”].) The jury was instructed regarding the claim-
of-right defense as follows: “If the defendant obtained property under a claim
of right, she did not have the intent required for the crime of theft. [¶] The
defendant obtained property under a claim of right if she believed in good
25
faith that she had a right to the specific property or a specific amount of
money, and she openly took it. [¶] In deciding whether the defendant
believed that she had a right to the property and whether she held that belief
in good faith, consider all the facts known to her at the time she obtained the
property, along with all the other evidence in the case. The defendant may
hold a belief in good faith even if the belief is mistaken or unreasonable. But
if the defendant was aware of facts that made that belief completely
unreasonable, you may conclude that the belief was not held in good faith.
[¶] If you have a reasonable doubt about whether the defendant had the
intent required for theft and/or embezzlement, you must find her not guilty of
these crimes.” (CALCRIM No. 1863.)
“ ‘[A] bona fide belief, even though mistakenly held, that one has a right
or claim to the property negates felonious intent.’ ” (People v. Selivanov
(2016) 5 Cal.App.5th 726, 768.) “ ‘Whether a claim is advanced in good faith
does not depend solely upon whether the claimant believes he was acting
lawfully; the circumstances must be indicative of good faith.’ ” (People v.
Stewart (1976) 16 Cal.3d 133, 140.)
“The specific intent with which an act is performed is a question of
fact.” (In re Albert A. (1996) 47 Cal.App.4th 1004, 1008; see People v.
Kranhouse (1968) 265 Cal.App.2d 440, 449 (Kranhouse) [“Obviously, the
question of whether defendant possessed the necessary intent to [commit
grand theft] was a factual issue. Whether an act is performed with any
particular specific intent is a question of fact for the trier-of-fact, and where
there is any substantial evidence to support the trier’s finding on such issue,
the finding will not be disturbed on appeal.”].)
Although the defense argued that Mercier’s honesty with investigators
about spending the money demonstrated she truthfully believed she was
26
entitled to it as compensation for taking care of her aunt, the jury was not
required to accept this argument. The evidence presented at trial supports
the jury’s conclusion that Mercier had the felonious intent required to
support her conviction for the theft crimes. As the trustee of her aunt’s trust,
Mercier knew that Delores’s property was to be distributed evenly between
Mercier and her sister upon Delores’s death. Mercier also knew that Delores
had been diagnosed with advanced dementia and was incapable of making
financial decisions. As power of attorney, Mercier was responsible for her
aunt’s finances when her aunt was incapacitated and was duty bound to
observe a reasonable standard of care with respect to Delores’s money and
property, to act in Delores’s best interest, and to maintain records of
transactions conducted on Delores’s behalf.
In spite of these responsibilities, Mercier admitted she cashed out
Delores’s savings and spent her Social Security and pension income. The
evidence established that, during the 16-month period when Delores lived in
the assisted living facility, Mercier spent over $122,250 of her aunt’s money
on casino and Facebook expenses. Despite the fact that Delores’s long-term
care insurance company made payments of over $75,500 to pay for Delores’s
expenses at the assisted living facility, Mercier neglected to make payments
on Delores’s behalf, causing Delores to be moved from a private room to a
shared room and ultimately leaving Delores (and her estate) with
outstanding balances exceeding $34,500. When confronted about the
delinquent payments, Mercier lied and suggested the insurance company
must not have received the invoices, even though the company received the
invoices and made payments for each billing period. Mercier did nothing in
response to her sister’s requests to help Delores with her medical and dental
needs. When her sister requested an accounting of Delores’s funds, Mercier
27
refused to provide information and threatened to obtain a restraining order.
Meanwhile, Mercier was sending her son money for his prison trust account.
After Delores died, Mercier admitted that “maybe she had spent money that
she shouldn’t have.” The jury reasonably rejected Mercier’s defense that
Delores would have consented to any of this.9 The evidence presented at
trial amply supports the jury’s conclusion that Mercier had the felonious
intent required to convict her of the charged crimes. (Kranhouse, supra,
265 Cal.App.2d at p. 449; Houston, supra, 54 Cal.4th at p. 1219 [concluding
the evidence supported the jury’s conclusion that the defendant harbored the
specific intent required to support the conviction].) The trial court did not err
when it denied Mercier’s motion for judgment of acquittal. (Jones, supra,
57 Cal.4th at p. 965.)
9 Mercier tries to support her claim-of-right defense by arguing she was
not legally sophisticated. But the evidence at trial is sufficient to establish
that Mercier had the requisite intent regardless of her lack of legal
sophistication, and she knew Delores did not consent to depleting her bank
accounts so Mercier could gamble hundreds of thousands of dollars while
Delores died in debt to the assisted living facility.
28
DISPOSITION
The judgment is affirmed.
GUERRERO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
29