People v. Lack CA2/6

Filed 6/15/16 P. v. Lack CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B260164 (Super. Ct. No. 1335893) Plaintiff and Respondent, (Santa Barbara County)

v.

DAVID JAMES LACK,

Defendant and Appellant.

David James Lack appeals from the judgment entered after a jury convicted him of one count of grand theft by embezzlement from an individual and two counts of grand theft by false pretenses from two banks. (Pen. Code, § 487, subd. (a).)1 As to each count, the jury found true an allegation that the value of the property taken exceeded $200,000. (§ 12022.6, subd. (a)(2).) The jury also found true an aggravated white collar crime enhancement involving the taking of more than $500,000. (§ 186.11, subds. (a)(1) & (2).) Appellant was sentenced to prison for nine years, eight months. Appellant contends that the trial court abused its discretion by excluding evidence of lending practices in the banking industry. In addition, he contends that the evidence is insufficient to support his convictions. We affirm.

1 Unless otherwise stated, all statutory references are to the Penal Code.

Facts Theft by Embezzlement from Mary Belle Snow Mary Belle Snow (Snow) and appellant were friends. Appellant told her that he was going to start a bank in Southern California and was looking for investors. He gave her a prospectus for the new bank, which was named Smart Federal, Inc. (Smart Federal). Snow decided to purchase 30,000 shares for $300,000. On March 3, 2008, she gave a check for that amount to appellant. The check was payable to Smart Federal. Appellant told her that he would deposit the check into an "escrow account until such time as the investors were put together, however many that would be, to take it to the next step." On March 10, 2008, the $300,000 check was deposited into Smart Federal's bank account. Before the deposit, the account had a balance of only $25. After the deposit, two checks totaling $241,000 were drawn on Smart Federal's account and deposited into appellant's personal bank account. On April 21, 2008, the balance in Smart Federal's account was $8,232.45. Appellant told Snow that he had taken her money. He said that he would "take the full responsibility for [her] $300,000" and was "working on replacing it." But Snow did not get her money back, and Smart Federal never opened for business. Theft by False Pretenses from Bank of Santa Barbara In April 2007 the Bank of Santa Barbara loaned appellant $700,000. Appellant's loan application misrepresented his financial situation. He said that he had assets totaling $2.05 million and no liabilities except an installment loan on an automobile with a balance of $15,773. In fact, appellant did not own the most valuable assets - a $1.3 million residence and $500,000 in real estate investments. He had a negative net worth of several hundred thousand dollars. Relying on appellant's personal financial statement, a bank employee recommended that the loan be approved. Later, the bank increased appellant's line of credit to $1.2 million. Appellant defaulted on the loan.