People v. Phillips CA1/5 ( 2016 )

Filed 8/16/16 P. v. Phillips CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A142990
v.
DARRYL KEITH PHILLIPS, (San Mateo County
Super. Ct. No. SC079372A)
Defendant and Appellant.
Darryl Keith Phillips began a relationship with retired schoolteacher Janice Lacy,
then isolated her from her family, took control of her financial affairs, and failed to
ensure she received medical treatment for her diabetes. When police investigated,
Phillips claimed he had power of attorney to make decisions and speak for Janice.1 After
living with Phillips for three years, Janice was found in a profoundly demented mental
state and suffering from life-threatening high blood sugar. Phillips was convicted by a
jury of elder abuse and preparation of false evidence for use in an official inquiry. He
argues his convictions are not supported by sufficient evidence. We affirm the
convictions but correct a conceded error in the calculation of Phillips’s presentence
custody credits.
1
For simplicity and clarity, first names are used for persons who share the same
surname with others involved in this case.
1
I. BACKGROUND
In a November 2013 information, Phillips was charged with felony elder abuse
(Pen. Code, § 368, subd. (b)(1)),2 felony falsification of a document to be used in
evidence (§ 134), and misdemeanor obstruction of an officer in the course of her duties
(§ 148, subd. (a)(1)). It was alleged he had five prior felony convictions within the
meaning of section 1203, subdivision (e)(4), three prior felony convictions within the
meaning of section 1170.12, subdivision (c)(2), and had served a prior prison term within
the meaning of section 667.5, subdivision (b).
The following evidence was presented at trial. As of the summer of 2010, Janice
was a retired home economics teacher living independently in her Menlo Park home. She
had close and loving relationships with her four children and their families, who visited
Janice regularly, and gathered at Janice’s home to celebrate holidays. In June 2009,
Janice’s daughter, Nichelle, and Nichelle’s children moved in with Janice, and they lived
together harmoniously. Janice managed her own affairs, including cooking, driving,
shopping, house cleaning, bill paying, and her personal hygiene. She had been diagnosed
hypertension in 1998 and with diabetes in 2002, but her condition was “very well
controlled” with prescription medications.
In August 2010, Janice met Phillips. Phillips, who had been homeless, moved into
Janice’s home three or four days later, staying in Janice’s bedroom. Janice’s son, Billy,
described his first encounter with Phillips as “real eerie.” Nichelle said Phillips made her
feel “[u]ncomfortable, unsettling, mysterious,” and he had made no effort to speak to her
or her two daughters while in Janice’s home. Shortly after Labor Day 2010, the four
siblings met with Janice at her house to express their concerns. Janice “basically said that
she would think about things and she’ll let us know and . . . we’re all adults and it’s really
her business.”
In November 2010, Phillips posted a three-day notice of eviction on Nichelle’s
bedroom door, but Janice tore it up. In December 2010, when Nichelle was home sick,
2
Undesignated statutory references are to the Penal Code.
2
he gave her another eviction notice and argued with her. Nichelle got help from a legal
aid agency and offered in a letter to move out by March, but she found the letter “taped
on [her] bedroom door saying ‘no’ in big letters.” During a subsequent unlawful detainer
court hearing, the judge asked Janice if she agreed with a proposed move-out date and
Janice looked at Phillips. When the judge told her not to look to Phillips for guidance,
Janice was unable to answer the judge’s question. When Nichelle moved out in
February 2011, Phillips was hostile, tried to start a fight with one of her friends, and
called the police to falsely accuse Nichelle of trying to stab him.
After moving out, Nichelle could not call Janice because Phillips had turned off
the home phone and taken away Janice’s cell phone. She could not go to Janice’s house
because the court had ordered her not to return. At one point, Nichelle received a letter
from Janice that was obviously written by someone else (based on spelling and other
errors) that was “like a promissory note to give her money and she’ll give us money.”
Janice turned 65 in November 2011. Nichelle saw Janice at a family gathering in
2012 or 2013, and Janice “wasn’t able to keep up the conversation. She would always
ask questions after we [made] a statement.”
Janice’s son, Billy, visited Janice’s house once or twice a week from 2010 through
2013. Janice was always in a back room. Billy “could kind of tell [Janice] wasn’t taking
her medicine because she . . . couldn’t remember.” She was no longer able to carry on a
conversation and repeatedly asked the same question. She was also losing weight, and
her condition continued to deteriorate over time. After Nichelle moved out, the property
fell into disrepair. The grass had died, bushes were overgrown, and the inside of the
house was a cluttered mess, all of which was a stark change from the property’s prior
condition. Eventually, surveillance cameras were installed “everywhere.” Phillips
became “[v]ery controlling” and did not want visitors. He and Janice sometimes talked
to Billy through the window rather than opening the front door.
When Janice’s daughter, Karen, visited after Labor Day 2010, Phillips always
remained in sight and the interaction between Janice and Karen was very limited, with
Janice answering yes or no to Karen’s questions. Janice almost never wanted to go out
3
with Karen. When Karen visited, “it got to the point where I was waiting outside . . .
anywhere from 20 to 30 minutes before I was . . . let in.” Phillips became very
aggressive, acting like he did not want Karen to see her mother, and Janice was very
passive toward Phillips. Janice showed lapses in memory and became more confused
over time.3 When Karen asked if Janice had been to a doctor recently, Janice said it was
none of Karen’s business.
At a June 2012 family event, Karen and Janice made a plan to visit Janice’s sister
in Fresno the following August. Karen sent Janice a letter reminding her of the plan, but
when Karen arrived at Janice’s house Janice was not prepared and said she could not go
on the trip. Karen convinced her to go and reminded her to pack her medicine. In
Fresno, Janice told Karen she was not taking any medicine. She repeatedly seemed
confused. After the trip, Karen reported the situation to Adult Protective Services (APS).
On August 13, 2012, APS social worker Susann Woods went to Janice’s house for a
welfare check. Janice would not let Woods in the house. Woods could see the house was
messy and cluttered, but she did not detect any health or safety hazards. Janice did not
seem frail, fearful, demented, or dirty, and she said she was fine and did not need help.
Janice said she lived alone, drove, shopped, and managed her own money. Woods closed
the case.
After the August 2012 trip, Karen was no longer allowed in the house and was
unable to talk to Janice, even through the window or by phone. Karen continued to write
to Janice, but she never received a response or any evidence that Janice had received the
letters.
In August 2013, Billy went to Janice’s house to take Janice to see a doctor.
Phillips told Billy he could not see her. Billy called the local police and three officers
came to the home and knocked on the front door. Phillips said from a window they could
not “see my wife” and should get off “my property.” Janice never came out of the house,
3
Nichelle’s, Billy’s and Karen’s descriptions of Janice’s mental deterioration and
Phillips’s efforts to isolate Janice were corroborated by Billy’s girlfriend and a former
student of Janice’s who regularly visited her.
4
but Billy saw her through a window. The police notified APS about the incident. Karen
had also contacted police and APS in September to report her concerns about Janice.
APS social worker Gwyn Luong made an unannounced visit to Janice’s home. Phillips
answered the door and identified himself as Janice’s husband. He said Janice’s children
were “after the house” and the police had already visited and everything was fine. He
said Janice was asleep, but after Luong persisted he brought Janice to the door. Janice
stood behind Phillips at the door, which was “very, very slightly ajar.” When Luong
asked how Janice was, Phillips told Janice to say she was fine and Janice said she was
fine. Luong asked Phillips to let Janice speak for herself, but he continued to do all the
talking. Luong asked to speak to Janice alone, but Phillips refused. Phillips and Janice
declined all help and closed the door.
On Friday, October 4, 2013, at 1:30 p.m., Luong returned to Janice’s home with
Menlo Park Police Officer Felicia Byars and another officer. A videorecording of the
encounter was played for the jury. Phillips again answered the door and refused to let
them inside because “we” did not want them there. He was very defensive, asking for the
officers’ names and badge numbers. Eventually, he brought Janice to the door, but she
stood behind him and he repeatedly said she did not want to talk to the officers or Luong.
Phillips claimed Janice was his wife and he had power of attorney, which allowed him to
speak for her. However, he refused to show any documentation. At Phillips’s prompting,
Janice told the officers she did not want to talk to them. Byars asked to speak to Janice
alone but was never able to do so. Phillips was loud and confrontational, and he
continually interrupted. He prompted Janice to make specific statements, encouraged her
not to cooperate, urged her to assert her Fifth Amendment rights and demand a lawyer
during questioning, and kept insisting that Janice did not want to talk.
With Phillips by her side, Janice said she did not have any problem with Phillips
and was not afraid of him. Luong asked Janice to tell her Phillips’s name and Janice
drew a blank until Phillips told her, “Darryl Phillips.” When again asked for Phillips’s
name, Janice did not answer as Phillips kept interrupting. Byars asked Janice about her
diabetes and Phillips interrupted, saying Janice did not have diabetes and did not need a
5
doctor. Byars asked Janice to call her children, and Phillips said that Janice wanted her
children to leave her alone because they were living off of her. Janice eventually said,
“They’re not my kids,” but Byars and Luong were not able to get her to explain what she
meant as Phillips kept interrupting. At Phillips’s prompting, Janice said she did not want
to talk any longer. The visit ended and the officers said they would return with a search
warrant. Luong testified that Janice did not seem to understand what was going on, and
Luong was concerned that Janice’s memory was impaired. Byars, who was qualified as
an expert in elder abuse and related financial crimes, felt she was not able to effectively
evaluate Janice’s condition based on the encounter.
Later in the afternoon of October 4, 2013, Phillips and Janice went to a notary
public to have a power of attorney form notarized. The notary noticed the document had
blank areas. Phillips directed Janice to write her initials and other information at
designated spots on the form, which Janice did and then signed the document. After the
notary prepared and attached the notarization form, she noticed the name typed under
Janice’s signature did not match the name on Janice’s driver’s license (the name typed
under the signature line included the last name of Janice’s second husband). Phillips
crossed out the discrepancy, picked up the document with the notary form attached, and
abruptly left the store.
On Saturday, October 5, 2013, Byars returned to Janice’s house with other
officers, placed Phillips under arrest, and assessed Janice’s condition with the help of
paramedics. Janice could not reliably state her birthdate, age or address. She
acknowledged she had diabetes and was not taking any medication. Janice said she did
not see her children because they “sort of are not what they . . . used to be . . . . [I]t’s
been a long time.” She said, “[T]hey wanted to take up, I think, take up some of my
little, little, I don’t know, what can I call it? They didn’t like the, the idea of it, so, so
. . . .” She said Phillips’s name was “Dale.” She did not know how long Phillips had
lived with her, what day or year it was, or who the president was. A paramedic
determined that Janice’s blood sugar level was 377—a dangerously high level that can
cause altered mental states and organ damage. She also had high blood pressure
6
(160 over 98). Byars determined that Janice was not cognitively able to make her own
decisions and took her into protective custody as a gravely disabled person. In the
ambulance, Janice’s blood sugar was measured at 590, which is life-threatening. Janice
was unable to say how many siblings, daughters or grandchildren she had, and she could
not draw a simple picture of a clock. She was admitted to the hospital to get her blood
sugar and blood pressure under control.
At Phillips’s request, Byars retrieved the power of attorney form from inside
Janice’s house. The document showed it was printed from the email account of
“99darr@live.com” at 3:12 p.m. on October 4, 2013. Byars later interviewed Phillips at
the police station. A videorecording of the interview was played for the jury. Phillips
repeatedly insisted he obtained the power of attorney form before Byar and Luong came
by on October 4, but he declined to sign a statement to that effect under penalty of
perjury. Phillips acknowledged Janice had memory problems—“she doesn’t remember
anything”—and said he took care of paying her bills and cooking her meals. When asked
if it was correct that he was “assuming responsibility for her as a caretaker,” Phillips
responded “correct” and “totally.” Phillips again asserted he had power of attorney for
Janice and said, “Durable power of attorney means that I do the thinking for her.” After
he was told he would be charged with elder abuse based on Janice’s medical condition,
however, Phillips said he was in charge of Janice’s finances but not her medical care. He
also claimed that Janice had no medical issues. He acknowledged she was not taking any
medication and had not seen a doctor in three years. Phillips said Janice was not diabetic
“irregardless what the doctor says.” He knew she was not diabetic because he did not see
any symptoms of sickness in her such as coughing. Her high blood sugar was not a
problem because she exercised regularly, and not taking medication did not affect her.
Phillips acknowledged he and Janice had a sexual relationship. He called her his
common law wife and said they loved each other even if she could not remember his
name. Phillips said he had “kicked all her mooching ass family out” of Janice’s home.
Byars noted that she had found mortgage information in the house and asked if Phillips
was trying to sell the home. He was evasive at first, but when Byars confirmed she was
7
videotaping the interview, he said, “Okay then, no I’m not.” When Byars asked if Janice
used her credit cards or the computer, Phillips said it was none of her business.
Several medical professionals examined Janice in the hospital and determined she
had severe dementia that could be attributed to her high blood sugar levels. Tests showed
that Janice’s “average glucose on a daily basis was around 350. The . . . fasting blood
sugar should be no higher than 120. So that means she was living in a persistently
elevated blood glucose level and there are many . . . ill effects of that over time.” On one
cognitive assessment test, Janice scored 3 out of 30, with a score of 27 or higher
considered normal. After she was released from the hospital to live with family
members, Janice was “[n]ot able to do pretty much anything for herself. . . . She wears
pull-ups. . . . You have to help her with showers because she don’t know what to do. You
have to tell her when to brush her teeth or how to do it. She basically can’t provide for
herself anymore.” Janice last picked up her medication in December 2011, and one
provider opined that she “became rapidly and profoundly demented” thereafter: “[W]e
will never know at what point it became . . . so severe, but it appears . . . she did not have
the ability to make . . . decisions” required for understanding legal documents.
Before Phillips moved in, Janice never used an ATM or her debit card or made
online financial transactions; she paid her mortgage and bills on time; and she withdrew
about $200–300 per month in cash. After Phillips moved in, she started making large
ATM cash withdrawals, debit card purchases and online payments; she started missing
mortgage payments; and her checking account was often overdrawn. A locked briefcase
full of pre-signed checks was found in Janice’s house. Janice’s medical, vision and
dental benefits were cancelled on her request (apparently by Phillips) in 2012, resulting in
increased monthly retirement payments. Requests were also made in Janice’s name to
cash out her retirement annuity and pension. In an online transaction involving the
“99darr@live.com” email account, her designated death beneficiary was changed from
one of her children to Phillips.
Juanita Sanders, then 72 years old, testified that she began a relationship with
Phillips in 2001, and he moved into her Menlo Park home in 2003. Prior to that time,
8
Sanders had a good relationship with her daughters, whom she saw regularly. Phillips
eventually became “very controlling.” He did not want Sanders to go outside, he
withheld some of her mail, and he would not let her children visit. “They could be
standing outside. [¶] . . .[¶] But he would not let them in.” Phillips had an electronic gate
installed at the house and did not give Sanders the password to open it. Phillips
persuaded her to take out a loan against her house to make some minor repairs and
upgrades. Sanders signed documents Phillips gave her without understanding them fully
or being able to read them because she was legally blind. She later learned that the loan
payments exceeded her retirement income. Phillips spent some of the loan money on
business ventures that were not profitable and apparently opened a stock trading account
in her name. Sanders repeatedly asked Phillips to leave, but he refused and would get
angry with her. On occasions, he grabbed her head, butted her forehead with his, and bit
her cheek. When Sanders finally called the police, and Phillips told her she had received
a three-day notice to quit the premises because she had defaulted on her mortgage and the
home was in foreclosure. Sanders moved in with her daughter, but Phillips remained in
the house five more months, changed the locks, and kept most of Sanders’s belongings.
A jury convicted Phillips on all counts. In a bifurcated proceeding, the jury found
the prior strike allegations true. The court struck two of the prior strikes and sentenced
Phillips to a total prison term of nine years four months, including the upper term of four
years for elder abuse doubled based on a prior serious or violent felony conviction
(§ 1170.12, subdivision (c)(1)), a consecutive 16-month term (one-third the middle) for
preparation of false evidence, and credit for time served on the section 148 conviction.
II. DISCUSSION
A. Care and Custody
Phillips argues there was insufficient evidence he had “care and custody” of Janice
for purposes of his elder abuse conviction. Specifically, he argues “there is not
substantial evidence that Phillips assumed the duties of a medical caretaker or that he
failed to treat a known condition that left untreated would result in great bodily injury or
death.” We have no difficulty affirming the conviction.
9
On review of a sufficiency of the evidence claim, we “review the whole record in
the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v.
Virginia (1979) 443 U.S. 307, 318–319.) “A reviewing court must accept logical
inferences the [fact finder] might have drawn from the circumstantial evidence.
[Citations.] ‘ “A reasonable inference, however, ‘may not be based on suspicion alone,
or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . .
A finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.’ ” ’ ” (People v. Sifuentes (2011)
195 Cal.App.4th 1410, 1416–1417.)
Section 368, subdivision (b)(1) provides: “Any person who knows or reasonably
should know that a person is an elder or dependent adult and who, under circumstances or
conditions likely to produce great bodily harm or death . . . [and] having the care or
custody of any elder or dependent adult, willfully causes or permits the person or health
of the elder or dependent adult to be injured, or willfully causes or permits the elder or
dependent adult to be placed in a situation in which his or her person or health is
endangered” is guilty of an elder abuse crime that is punishable by up to four years in
prison.4 (Italics added.) This statute “may be applied to a wide range of abusive
4
In this case, the jury was instructed that, to “prove that the defendant is guilty of
[elder abuse], the People must prove that: The defendant, while having care or custody
of Janice Lacy, willfully caused or permitted her person or health to be injured; the
defendant while having care or custody of Janice Lacy willfully caused or permitted her
to be placed in a situation where her person or health was endangered; the defendant
caused or permitted Janice Lacy to be injured or be endangered under circumstances or
conditions likely to produce great bodily harm or death; Janice Lacy is an elder and when
the defendant acted he knew or reasonably should have known that Janice Lacy was an
elder; and the defendant was criminally negligent when he caused or permitted Janice
Lacy to be injured or to be endangered. [¶] Someone commits an act willfully when he or
she does it willingly or on purpose. ‘Great bodily injury’ means significant or substantial
10
situations, including within its scope active, assaultive conduct, as well as passive forms
of abuse, such as extreme neglect. (Cf. People v. Smith (1984) 35 Cal.3d 798, 806
[construing identical language in felony child abuse statute].)” (People v. Heitzman
(1994) 9 Cal.4th 189, 197 [construing § 368].)
The term “care” in section 368 “is not at all recondite or mysterious; no definition
is necessary in order to give fair notice, and we doubt any definition could be given
which would use simpler words or ones more likely to be understood. . . . [T]he statute in
question here uses ‘care,’ in apposition to ‘custody’ and in the common sense of
supervision or control, to define the class of persons who have elderly persons under their
care . . . .” (People v. Manis (1992) 10 Cal.App.4th 110, 116–117, disapproved on other
grounds by People v. Heitzman, supra, 9 Cal.4th at pp. 208–209 & fn. 17; see Heitzman,
at p. 208 [favorably citing this passage from Manis].) “The terms ‘care or custody’ do
not imply a familial relationship but only a willingness to assume duties correspondent to
the role of a caregiver.” (People v. Cochran (1998) 62 Cal.App.4th 826, 832 [construing
phrase in § 273ab by analogy to § 368].)5 No express agreement to care for the elder is
necessary. (See People v. Perez (2008) 164 Cal.App.4th 1462, 1471, 1476 [construing
§ 273ab]; see also People v. Morales (2008) 168 Cal.App.4th 1075, 1083 [following
Cochran and Perez on these points in a § 273a case].)
As a preliminary matter, we note the jury could easily have found Phillips had care
or custody of Janice based on his own sweeping admissions during his interview with
Byars. Phillips said Janice “doesn’t remember anything”; he acknowledged that he
“totally” assumed responsibility for Janice “as a caretaker”; and he said the alleged
durable power of attorney “means that I do the thinking for her.” However, even
assuming the jury credited Phillips’s later attempts to distinguish between his assumption
physical injury. It is injury that is greater than minor or moderate harm. An elder is
someone who is at least 65 years old.”
5
Because child and elder abuse statutes are similar in wording and purpose, cases
construing child abuse statutes are persuasive authority regarding shared language in
elder abuse statutes. (See People v. Cochran, supra, 62 Cal.App.4th at p. 832.)
11
of responsibility for Janice’s financial affairs from responsibility for her medical care,
sufficient evidence supports a finding that Phillips had care or custody of Janice for
purposes of her medical care.
An instructive case is People v. McKelvey (1991) 230 Cal.App.3d 399, where the
defendant and his adult sister lived with their elderly mother who suffered from multiple
sclerosis. (Id. at p. 401.) The siblings initially shared caretaking responsibilities for their
mother: defendant cooked and maintained the home and his sister performed her
personal care, including bathing, toiletry and cleaning clothes and linens. When the sister
left because she felt overwhelmed, the defendant continued to cook for his mother but
completely neglected her personal care (allegedly out of respect for his mother’s
modesty), even though he knew no one else was assisting her. He claimed his mother
was alert and in charge of the household and could change her own diapers. (Id. at p.
402.) Four days after the sister left, the mother was found “in a hospital bed lying in
excrement from her ankles to her shoulders. Maggots, ants and other insects crawled
upon her. She had sores on her legs and complained of the insect bites. Her skin flaked
when [a fireman] brushed the insects away. The house strongly smelled of excrement.”
(Id. at p. 401–402.) The court held there was sufficient evidence that the defendant had
the care or custody of his mother, including her personal care, after his sister had left the
home: “The deplorable condition in which emergency medical persons discovered Mrs.
McKelvey belies defendant’s contentions that she was in charge of the household, could
summon assistance if necessary and could request clean diapers as needed. . . .
[D]efendant was the only physically able, competent adult in the household after [his
sister] left. As such, he was responsible for the care of his paralyzed, incapacitated
mother, including her cleanliness.” (Id. at pp. 404–405, fn. omitted; see People v. Manis,
supra, 10 Cal.App.4th at p. 117 [“any definition of the word ‘care’ would include having
in one’s house a helpless relative, such as the victim, who could not feed herself due to
Alzheimer’s disease”]; People v. Heitzman, supra, 9 Cal.4th at p. 208 [favorably citing
this passage from Manis]; Heitzman, at p. 221 [implying Manis correctly decided on its
facts].)
12
Here, Phillips was the only physically able, competent adult in the household at a
time when Janice inferably had lost the ability to manage her own health care. While a
familial relationship between a defendant and victim is not necessary, we note that
Phillips claimed Janice was his “wife.” He also played an active and dispositive role
isolating Janice from other people who could have assisted her: he caused Nichelle to
leave Janice’s home and impeded visits by all of Janice’s children, and the jury could
have inferred from the evidence that he cut off Janice’s phone access and alienated
Janice’s affections from her children. Phillips emphasizes evidence that Janice’s contact
with her children was not completely cut off, but complete isolation is not required for a
care or custody finding.
Phillips concedes that Janice developed dementia over the course of their
relationship, but he suggests this was not the basis for his conviction. He writes, “Phillips
was not accused of poor care of her dementia. He was accused of not taking her to the
doctor and ensuring she took her medication.” However, the medical evidence supported
an inference that lack of care for Janice’s diabetes caused her dementia and life-
threatening high blood sugar. Phillips’s admissions establish he was aware of Janice’s
diabetes diagnosis and related prescriptions, and he shared his view that Janice did not
need medication or medical attention. Janice’s condition on October 5, 2013, however,
demonstrated Phillips must have been aware that this was not the case, as Janice had
become profoundly demented and had lost the ability to provide even such basic self-care
as showering and brushing her teeth. Even if Phillips did not understand the precise
relationship between Janice’s diabetes and her dementia, he could be held criminally
liable for failing to ensure that Janice, who could no longer make her own health care
decisions, obtained medical attention to assess the cause of her severe mental and
physical deterioration. The financial evidence in the case supported an inference that
Phillips deliberately failed to obtain medical care for Janice, not because he genuinely
believed she did not need it, but because he wanted her to remain demented so that he
could loot her assets and exploit her credit.
The elder abuse conviction is supported by substantial evidence.
13
B. Preparation of False Evidence
Phillips also argues the evidence was insufficient to support his conviction for
preparing false evidence in violation of section 134, which was based on his preparation
of the power of attorney form. He argues the statute does not apply to evidence prepared
to influence a police investigation as opposed to a trial or other official proceeding, and
the power of attorney form he prepared was not “false.” We disagree on both grounds.
Section 134 provides, “Every person guilty of preparing any false or ante-dated
book, paper, record, instrument in writing, or other matter or thing, with intent to produce
it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true,
upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”
(Italics added.) The statute’s “objective is to prevent the fraudulent introduction of
material in a proceeding under the authority of law,” and the phrase “ ‘authorized by law’
is broadly construed to include acts by a legal official acting within the scope of his
authority.” (People v. Clark (1977) 72 Cal.App.3d 80, 84.) In our view, a police
investigation is self-evidently a legally authorized inquiry covered by the statute. Phillips
argues the phrase “any trial, proceeding or inquiry whatever, authorized by law,”
construed in its entirety, “limit[s] the scope of the section to trial or quasi-trial
proceedings or hearings.” But “trial” does not modify the latter two terms “proceeding”
and “inquiry,” and those latter terms self-evidently encompass a range of activities that
lack trial-like features such as advocacy, a neutral arbiter, or cross-examination.
Moreover, all three terms are modified by the expansive term, “whatever,” strongly
signaling that the terms should be construed liberally rather than strictly.
Phillips claims section 134 has never been construed to apply to police
investigation of crime. However, even if we accept his representation as true, “[t]he fact
that section 134 has not been invoked outside the courtroom is not authority against
permitting such use.” (People v. Clark, supra, 72 Cal.App.3d at p. 84.) The cases cited
by Phillips in fact illustrate that the statute has been given broad application to the
preparation of false evidence for use in public university grievance hearings (id. at 82,
84), in court-ordered drug testing as a condition of probation (People v. Morrison (2011)
14
191 Cal.App.4th 1551, 1554–1556 [preparation of false urine sample]), and in a change-
of-plea proceeding premised on compliance with probation terms (People v. Laws (1981)
120 Cal.App.3d 1022, 1027–1030). Phillips further argues the statute should be
construed in his favor pursuant to the rule of lenity. That rule, however, does not apply
where, as here, the statute is not susceptible of two reasonable interpretations. (See
Morrison, at pp. 1556–1557.)
Phillips’s second argument is that the power of attorney form he prepared was not
false evidence because it was not altered or forged, but “stated exactly what Phillips said
it did,” i.e., that it granted him power of attorney over Janice’s financial affairs. This
district has previously considered the meaning of “false” in section 134 and held: “The
plain language of section 134 does not require that a matter or other thing be altered or
false ‘on its face’ . . . . Whether evidence is ‘false’ under section 134 depends upon what
it is intended to depict or represent as ‘genuine or true.’ In other words, falsity is not an
absolute quality. It can turn upon what the evidence is offered to prove.” (People v.
Bamberg (2009) 175 Cal.App.4th 618, 627.)
The form created by Phillips in October 2013 was false because the document
falsely represented that Janice had knowingly and voluntarily granted Phillips power of
attorney over her affairs at a time when she did not have the mental capacity to do so.
That falsity was material to the police investigation in which Phillips offered the
document: an investigation into Janice’s welfare. On October 4, Phillips invoked his
purported power of attorney to support his claim to speak on Janice’s behalf, which
included a denial that Janice had any medical problems and repeatedly insisting she did
not want to talk to the officers and they should leave. That is, he invoked the power of
attorney to impede investigation into Janice’s welfare. Later that same afternoon, Phillips
took steps to create the power of attorney document, inferably for the same purpose of
impeding further police investigations into Janice’s welfare. The following day, he drew
police attention to the document, which was retrieved from Janice’s home, and he
affirmatively cited it during his interview with Byars as evidence that he had a legal right
to make decisions for Janice, including financial decisions that were under investigation
15
at that time. In sum, sufficient evidence supports a conclusion that Phillips prepared a
false paper with the intent to produce it in a police investigation into potential elder
abuse.
The conviction for violating section 134 is supported by substantial evidence.
C. Presentence Credits
Phillips’s final claim is that the trial court miscalculated his presentence custody
credits, both by undercounting his actual days of custody and by misapplying
section 1170.12, subdivision (a)(5) with respect to calculation of credits pursuant to
section 4019. (See People v. Thomas (1999) 21 Cal.4th 1122, 1125 [§ 1170.12,
subd. (a)(5) does not apply to presentence custody].) The People concede the errors. We
accept the concession and order Phillips’s presentence custody credits to be increased to
657.6
III. DISPOSITION
The judgment is modified to reflect a total of 657 days of presentence custody
credit. In all other respects, the judgment is affirmed. The superior court clerk shall send
a corrected abstract of judgment to the California Department of Corrections and
Rehabilitation.
6
In a separate petition for writ of habeas corpus (No. A148937), Phillips has
raised claims alleging a prosecution and law enforcement conspiracy to kidnap and
murder Janice and challenging the competency of his trial and appellate counsel. We
have denied that petition by separate order filed this date.
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_________________________
Bruiniers, J.
We concur:
_________________________
Jones, P.J.
_________________________
Needham, J.
17