People v. Crossman

California Court of Appeal May 11, 1989 No. H003602Published

Before: Agliano

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Holding. The court held that the statute of limitations for grand theft did not bar prosecution because the estate's representative did not have actual or constructive notice of the crime more than three years prior to the filing of the information. The defendant's position of trust and the lack of evidence suggesting a criminal agency for the missing property meant the discovery period had not been triggered.

Issues

Whether the three-year statute of limitations barred the prosecution of grand theft by a public officer.
Whether the estate's representative had constructive notice of the crime sufficient to trigger the statute of limitations.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the triggering of a period of limitations on concealed thefts requires more than mere discovery of a loss; it requires an awareness the loss occurred by virtue of a criminal agency.”

“Thus, ‘discovery’ calls for awareness of the crime, not merely the loss.”

“Defendant used his official position to commit theft and to lend credence to his representation that, having looked for gold coins, he found none. It ill serves defendant to now claim that the police should have seen through his deceit.”

Opinion

AGLIANO, P. J.

Defendant Paul D. Crossman, former senior deputy coroner of Monterey County, appeals from the trial court’s judgment convicting him of three counts of grand theft by a public officer. (Pen. Code, §§ 504/487.)

The sole issue presented is whether the trial court correctly determined that the applicable three-year statute of limitations (Pen. Code, § 801) did not bar prosecution of the offense charged in count 5 of the information.

The information filed on January 29, 1987, alleged in pertinent part that on or about April 28, 1982, defendant misappropriated a number of gold coins, the property of a decedent’s estate; that the crime was not actually discovered until August 14, 1986; and that in the interim period the People did not have constructive knowledge of the offense. Under these circumstances, commencement of prosecution in 1987 was timely. (Pen. Code, §§ 803, subd. (c), 804.)

Facts

The relevant evidence is essentially undisputed. On May 15, 1981, Cyril O’Connor purchased Canadian maple leaf gold coins for $33,879 with funds withdrawn from his bank account. He liquidated the bank account so that his wife could qualify for governmental medical benefits. O’Connor

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disclosed the gold purchase to his neighbor, Reiny Lamm, and also told him that he hid the coins under the stove in his mobilehome.

Mr. O’Connor died on April 26, 1982. As the deputy coroner assigned to investigate O’Connor’s death, defendant spent considerable time in O’Connor’s mobilehome. As later events were to disclose, defendant took advantage of his access to the home to find and convert at least some of the gold coins which O’Connor had acquired.

On July 30, 1982, Alonzo Real, an employee of the public guardian, was appointed conservator of the estate of Tirzah O’Connor, the surviving wife of Cyril O’Connor. Mr. Real immediately began to identify and gather Cyril’s property on her behalf.

The crucial inquiry in this case is whether the statute of limitations commenced to run by virtue of information which came to the attention of Mr. Real. The People and the defendant agree Real was a potential “discoverer” for purposes of the tolling provision of Penal Code section 803, subdivision (c).

People v. Crossman

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AGLIANO, P. J.

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