People v. Stark

Opinion

PUGLIA, P. J.

— A jury convicted defendant of willful diversion of construction funds (Pen. Code, § 484b) and found the taking exceeded $25,000 (Pen. Code, § 12022.6, subd. (a)). Imposition of sentence was suspended and defendant was granted probation for five years.

[1181]

In the published part of this opinion we shall reject defendant’s contention that the trial court erred in instructing the jury that willful diversion of construction funds is a general intent crime.

1

Finding no error, we shall affirm.

In 1989, Doctors Steven Johnson and Douglas Martin contracted with defendant, doing business as Stark Construction, to build a medical facility for approximately $350,000. The project was begun in October 1989, and as various phases of the project were completed, defendant received partial payment from a construction loan obtained by the doctors. With these payments defendant was to pay the subcontractors and materialmen who had either performed work or provided materials for the job.

By February 15, 1990, defendant had received three draws from the construction loan, totalling about $245,000. On March 1, the doctors received several calls from subcontractors and materialmen informing the doctors they had not been paid. The doctors discussed the matter with defendant and it was agreed the doctors would thereafter write the checks to the subcontractors and materialmen. The building was completed on March 1. On March 16 the doctors issued approximately $70,000 in checks to subcontractors and material suppliers from the fourth draw.

When the doctors continued to receive calls from people who were supposed to have been paid, but had not been paid, from the first three draws, they again confronted defendant. Defendant informed the doctors he had been experiencing financial difficulties on other jobs and some of the money from the medical building project had been spent to defray costs incurred for those jobs. Defendant promised to repay the money as the other jobs progressed.

Months later, when money owed subcontractors and material suppliers still had not been paid, the doctors contacted the Contractor’s State License Board and the district attorney. The doctors estimated defendant’s diversion of the funds cost them approximately $46,000.