Friday, December 27, 2013
Appeals Court Upholds Charter School Controller’s Theft Conviction
Panel Says Unauthorized Taking of Back Pay Not Covered by Claim-of-Right Defense
By KENNETH OFGANG, Staff Writer
The former controller of a Long Beach charter school was properly convicted of theft for diverting more than $40,000 of the school’s money to her personal use, the Court of Appeal for this district has ruled.
Div. Two Tuesday affirmed the conviction of Lisa Kalem-Grabow, who was sentenced to two years in jail for taking the money from New City Public School. The court rejected Kalem-Grabow’s contention that Los Angeles Superior Court Judge Charles D. Sheldon gave an inadequate instruction on her claim-of-right defense.
Prosecutors said Kalem-Grabow carried out the bulk of the misappropriation in June 2010, when the school was in transition because its executive director and development director were leaving and it was unclear whether Kalem-Grabow would be kept on by the new leadership.
After obtaining a letter from the outgoing executive director, Ted Hamory, saying she was entitled to $5,000 severance on her “last day,” which was to be July 2, 2010, along with any unused vacation pay, Kalem-Grabow arranged to have two checks issued to herself, one for more than $5,500 and one for more than $26,000, and deposited the checks into her account.
The larger check did not list a payee on the school’s ledger. A part-time bookkeeper testified that she was told by Kalem-Grabow to void that check out of the payroll system, so as to make it appear that the money was never transferred.
The school’s new executive director, Sabrina Lee Bow, who took over in late June 2010, asked Kalem-Grabow to stay on to oversee a construction project. Several months later, however, Bow was reviewing financial records and noticed that the two checks had been issued to Kalem-Grabow.
She hired a certified fraud examiner, who verified that the two checks had cleared. Kalem-Grabow was placed on leave pending investigation. The ensuing probe revealed that Kalem-Grabow had gradually increased her own salary after the school reduced it along with those of other administrators, in 2009-2010, and that she had bribed the bookkeeper, providing her with six months of health insurance in exchange for voiding the $26,000 check, then told the bookkeeper not to cooperate with an audit.
Prosecutors also presented evidence that before coming to New City, Kalem-Grabow worked as a finance director at Para Los Ninos school for nearly three years, and that during that time she spent nearly $6,000 of the school’s money without authorization, including more than $4,200 to pay her property taxes.
Kalem-Grabow did not dispute taking the money from New City, but said she thought it was owed to her.
Sheldon instructed on claim of right, basing the instruction on CALJIC No. 9.44. The instruction says that a defendant lacks the specific intent necessary to commit theft if he or she has a “good faith claim of right” to the property, but that the necessary intent exists if the defendant is not claiming title to specific property, but “is attempting to satisfy, settle, or otherwise collect on a debt, liquidated or unliquidated, and specifically intends permanently to deprive the victim of their property in furtherance thereof.”
On appeal, the defense argued that—instead of CALJIC No. 9.44—the judge should have given CALCRIM No. 1863, which lacks the language about collecting a debt, and which says the defendant has a defense if, based on the totality of the evidence, she “believed in good faith that [she] had a right to the specific property or a specific amount of money, and [she] openly took it.” The instruction also states that a claim may be in good faith even if it is “mistaken or unreasonable.”
Justice Judith Ashmann-Gerst rejected the argument in an unpublished opinion. Sheldon’s instruction, she said, explained the “sufficiently common” concept that a mistaken or untenable belief may still be in good faith.
The jurist went on to say that under California case law, an attempt to collect a debt, including wages or severance, by taking the money without authorization is not covered by the claim-of-right defense. Given this, Ashmann-Gerst concluded, the evidence that Kalem-Grabow took the money without notice to, or approval of, the school’s administrators rendered any inadequacy in the jury instructions harmless beyond a reasonable doubt.
The Los Angeles Times reported in 2003 that prosecutors had decided there was insufficient evidence to prosecute Kalem-Grabow on charges she misappropriated more than $100,000 from USC, where she worked as a financial officer for 11 years, in part by placing her husband on the law library payroll. The newspaper said she had reached a civil settlement with the university, for an undisclosed sum.
Attorneys on appeal were Christopher Love, under appointment by the Court of Appeal, for the defendant, and Deputy Attorneys General Steven D. Matthews and Timothy M. Weiner for the prosecution.
The case is People v. Kalem-Grabow, B240395.
Copyright 2013, Metropolitan News Company