Wooten

Michael Wooten appeals from the judgment entered on a jury verdict convicting him of one count of felony grand theft. (Pen. Code, § 487.) 1 The jury determined that appellant obtained $10,000 from a construction lender by misrepresenting to the lender that the money would be used to pay a specified licensed general contractor for supervising a construction project. In fact, appellant, who was not a licensed contractor, personally supervised the construction and kept the money for himself and his partner. This is grand theft.

Appellant contends: (1) the trial court erroneously restricted the presentation of defense evidence; (2) the prosecution could not, as a matter of law, establish theft on a false pretense theory; and (3) the jury was erroneously instructed. We affirm.

Facts

Appellant and his partner, Frank Marasco (Marasco), were the principals of Darrik-Marten Company (Darrik-Marten), a firm engaged in real estate development. They obtained a $550,000 loan from Community Group Funding, Inc. (CGF) to construct a subdivision in Santa Paula. The two-page loan agreement states, “[t]he loan will consist of the following disbursements:” (1) $110,000 to Darrik-Marten;…

I respectfully dissent.

Appellant represented that payment was sought for supervision of the project by Gary Johnson, a licensed contractor, when in fact the money was ultimately paid to appellant’s firm because appellant supervised the project himself. There is no dispute that the money received was a reasonable fee for supervision of the project. Neither is it contended that appellant’s supervision caused the project to fail. Essentially, appellant was convicted because he lied. His “lack of candor,” to use appellant’s euphemism, was perhaps immoral and dishonest. But was it a crime?

A position letter by the Attorney General to the Governor dated July 6, 1965, supporting the enactment of Penal Code 1 sections 484b and 484c stated that Senate Bill No. 722 was designed to meet the urgent problem created by the misapplication of construction funds and “to deter the major malefactor who by his breach of trust injures a homeowner or a financial institution. . . .” Who was injured here? The only reason this “crime” came to light was because of the district attorney’s investigation into an unrelated matter. The “victim” did not feel harmed enough to complain about it. My *1851…

Michael Wooten appeals from the judgment entered on a jury verdict convicting him of one count of felony grand theft. (Pen. Code, § 487.) [1] The jury determined that appellant obtained $10,000 from a construction lender by misrepresenting to the lender that the money would be used to pay a specified licensed general contractor for supervising a construction project. In fact, appellant, who was not a licensed contractor, personally supervised the construction and kept the money for himself and his partner. This is grand theft.

Appellant contends: (1) the trial court erroneously restricted the presentation of defense evidence; (2) the prosecution could not, as a matter of law, establish theft on a false pretense theory; and (3) the jury was erroneously instructed. We affirm.

Appellant and his partner, Frank Marasco (Marasco), were the principals of Darrik-Marten Company (Darrik-Marten), a firm engaged in real estate development. They obtained a $550,000 loan from Community Group Funding, Inc. (CGF) to construct a subdivision in Santa Paula. The two-page loan agreement states, "[t]he loan will consist of the following disbursements:" (1) $110,000 to…