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People v. Ellis5/28/2003
ion much greater than a bottle a day, frequent verbal arguments over drinking, and a recent bout of alcohol withdrawal in July 1999. . . . ttempts to keep Ms. Michelis to no more than one bottle of wine a day has been difficult . . . ." Dr. Crawford stated that Michelis experienced a decline in social and cognitive skills over the last five years, and " er judgment and ability to manage her financial affairs deteriorated severely over one year ago." As to diagnosis, Crawford concluded Michelis suffered from alcohol dementia with Wernicke-Korsakoff Syndrome. She explained that her diagnosis was "consistent with the chronic effects of heavy alcohol consumption causing confabulation, paranoia, memory-deficits, impaired judgment and loss of insight." She believed that Michelis's condition was "permanent and with continued alcohol use certainly going to decline."
While contradictory, this evidence and the reasonable inferences drawn from it support the court's finding that Michelis "could have been competent as a witness at any time since July 1999." The arguments submitted by the parties, and the court's specific reference to competency "as a witness," belie defendant's claim on appeal that the court confused the standards of "competency" for purposes of establishing an involuntary conservatorship and "competency" to testify. Moreover, it was sheer speculation that Michelis would have provided exculpatory testimony at trial even if she had been competent to testify. Michelis was the victim of defendant's criminal acts and later told police and others that defendant had coerced her into transferring her assets. The court's ruling did not prevent defendant from introducing in support of her case the deed and two documents signed by Michelis in the presence of the notary on June 24, 1999.
Defendant failed to establish for the court the "particular factual context" in which her specific claim of prejudice could be evaluated. (Shleffar, supra, 178 Cal.App.3d at p. 946.) Having concluded the record supports the court's finding of no prejudice, we need not consider the adequacy of the justification provided by the prosecution. (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911.)
II. Election of Specific Acts
Defendant also moved in limine for an order directing the prosecution to elect which specific acts it was relying on to prove the theft-based offenses. The court ruled the prosecution had to identify the specific transactions it alleged constituted theft in count two. At the same time, it found that counts five, six and seven -- alleged unauthorized use of credit cards in violation of section 484g -- contemplated a course of conduct over a three-month period and no election was required. On appeal, defendant contends she is entitled to reversal because the court's ruling denied her the constitutional right to notice of the specific acts charged "in a highly complex case . . . ." We reject that contention.
Where the evidence shows several distinct potentially criminal acts, and only one is charged, the prosecution must, upon demand, make a pretrial election of the specific act on which it intends to rely for conviction. However, no election is required "where the various acts do not constitute distinct potential crimes but rather one continuous course of criminal conduct." (People v. Salvato (1991) 234 Cal.App.3d 872, 882 (Salvato).)
The continuous course of conduct exception to the election requirement arises in two contexts. "`The first is when the acts are so closely connected that they form part of one and the same transaction . . . . [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts
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