People v. Ellis5/28/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant, Mollee Michelle Ellis, worked as a live-in caretaker for 72-year-old Dorothy Michelis for three months in 1999. During that period, defendant acquired an ownership interest in Michelis's home, deposited a $200,000 check signed by Michelis in her separate bank account, and made unauthorized purchases on Michelis's credit cards. Following a lengthy investigation, the Placer County District Attorney filed criminal charges against defendant on June 14, 2001.
A jury convicted defendant of theft of property, a home, by a caretaker from an elder adult (Pen. Code, § 368, subd. (e) -- count one), attempted theft of property, a $200,000 check, by a caretaker from an elder adult (§§ 644 & 368, subd. (e) -- count three), and two counts of fraudulent use of a credit card (§ 484g -- counts six and seven). It also found true allegations that: (1) the theft in count one involved the fraudulent taking of over $100,000 in a pattern of related felony conduct (§ 186.11, subd. (a)); (2) that defendant committed theft of more than $100,000 in count one (§ 1203.045, subd. (a)); and (3) that the thefts in counts one and three involved a loss of more than $150,000 (§ 12022.6, subd. (a)). The court sentenced defendant to an aggregate term of six years and 10 months.
Defendant appeals, arguing: (1) the court erred in denying her motion to dismiss on grounds of unreasonable preaccusation delay; (2) the court erred in failing to require the prosecution to elect which specific acts it was relying on to prove violation of section 484g in counts six and seven; (3) she was denied effective assistance of counsel when her attorney asked about her prior criminal history during direct examination; and (4) the court denied her due process by instructing the jury with CALJIC No. 17.41.1. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, Dorothy Michelis, was a generous woman with a passion for roses. She began to drink heavily after the death of her companion in the mid-1990's. During the spring and summer of 1999, Dr. Roger Hicks treated Michelis for a fractured pelvis, radial nerve palsy in her hand, incontinence, rectal bleeding, poor balance, and chronic alcoholism. She told Hicks in July 1999 that she had cut back from 15 to five drinks of alcohol a day.
Michelis had assets worth approximately $1.2 million. That sum included $450,000 in liquid assets, a home worth $225,000, two cars, and a portfolio of stocks, bonds, and certificates of deposit. In 1999, relatives in Pennsylvania petitioned Placer County for a conservatorship on Michelis's estate. The probate investigator who interviewed Michelis in April 1999 concluded she was "unable to care for her personal needs, and based on her wide fluxion of, of mood, . . . would be susceptible to undue influence by others and therefore not able to manage her finances." The court appointed the Placer County public guardian as temporary conservator in early May 1999. Further investigation by the public guardian's office revealed that Michelis suffered from alcoholism and the beginning stages of dementia.
Michelis opposed the conservatorship because she feared she would be placed in a nursing home. The court terminated the temporary conservatorship on May 27, 1999, based on the representations of Michelis's attorney, Ed Koons, that she had live-in caretaker
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