People v. Wetherell

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

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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

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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