Tuesday, September 16, 2003
Ex-Employee’s Conviction for Defrauding Law Firm Upheld
By DAVID WATSON, Staff Writer
A man who used his position as the first computer administrator for a Long Beach law firm in an attempt to steal money intended to be used for software licenses was properly convicted of theft crimes, this district’s Court of Appeal ruled yesterday.
In an unpublished portion of a ruling certified for partial publication, Div. Seven rejected claims by Kevin D. Traster, who represented himself at trial, that he was denied his constitutional right to assistance of counsel. In the published portion, the appellate panel agreed Traster was convicted under the wrong larceny theory and remanded the case for resentencing.
Justice Earl Johnson Jr. explained that Traster, who operated a consulting business called Pen, Paper, Mouse Ink, became the first computer administrator for Demler, Armstrong and Rowland in 1997. Among his responsibilities was converting the office from WordPerfect to Microsoft Word.
In 1999 he told the firm’s administrator, Susan Stevens, that the firm needed to purchase Microsoft software licenses for all of its computers, and suggested they could be obtained from Billpoint Company at a discounted rate. The firm’s partners approved using the firm’s credit card to purchase 65 Windows 98 and Microsoft Office licenses for about $37,000.
In fact, Billpoint was a Internet credit card processing company with which Traster had established an account for Pen, Paper, Mouse Ink, and he quit his job at the law firm a few days after processing the credit card transaction.
A few months later Traster went to work for an oil and paint recycling company in Compton, also advising the company it needed to purchase additional software licenses and offering to obtain them at a discount. The company wrote checks totaling over $90,000, payable to Traster, for the licenses.
He was terminated a few months later after managers and officers reported they found him difficult to work with and that computer problems at the company were not being resolved. But before leaving, he obtained an additional $40,000 check, which he told the chief operating officer represented the last of three payments for the licenses.
Both the law firm and the recycling company were unable to find any licenses after Traster left, and when they contacted him to ask about them received confusing and sometimes illegible faxes purporting to be copies of the licenses. Eventually Traster admitted to officers of the recycling company that he had never bought licenses, and he was arrested by Compton police in 2000.
Traster was convicted after a jury trial of two counts of grand theft by false pretenses. That, Johnson said, was the wrong theft theory.
Larceny by false pretenses requires an intent on the part of the victim to transfer title to the property to the defendant, the appellate justice explained, and neither of Traster’s employers intended the money to go to him. The offense actually established by the evidence in the case was larceny by trick, Johnson said.
“The evidence in the present case established the victims provided appellant funds, or access to funds, to purchase specified property,” Johnson wrote. “Specifically, both victims intended to acquire Microsoft licenses and provided appellant funds for the express purpose of purchasing Microsoft licenses, and for no other reason. Representatives from both the law firm and the company consistently testified the only reason they provided appellant funds was because he promised to use the funds to acquire Microsoft licenses on their behalf. No representative from either firm even suggested appellant received the funds unconditionally to use as he wished. Thus, the record evidence establishes beyond dispute the firms did not intend to pass title to the money until or unless it was spent for the specified purpose of purchasing Microsoft licenses, and then only to the ultimate vendor or supplier of the Microsoft licenses.”
But the error was harmless, Johnson said, since the only effect was to increase the prosecution’s burden of proof—a result of the fact that false pretences requires corroboration. Only a modification of the verdict to reflect the proper theory was required, he said.
Johnson also noted that Traster never got possession of any proceeds from the law firm’s credit card transaction. The charges were initially blocked by Billpoint because they exceeded its $2,000 per transaction limit, and were later cancelled by one of the firm’s partners before Traster’s consulting company account could be credited.
As a result, Johnson said, Traster could only be convicted of attempted grand theft on the count involving the law firm, and resentencing would be required.
With regard to Traster’s assistance-of-counsel claims, Johnson said Traster was appropriately warned at several stages of the proceedings of the dangers of representing himself and chose to do so anyway. Though there was a failure to readvise him of his right to counsel and to appointed counsel when he was arraigned on a refiled felony information before Los Angeles Superior Court Judge Victoria M. Chavez, that error was harmless, Johnson reasoned, since the record established it was “reasonably probable appellant was aware he had the right to appointed counsel even without an explicit readvisement at his second arraignment.”
Presiding Justice Dennis M. Perluss and Los Angeles Superior Court Judge Aurelio Munoz, sitting on assignment, concurred.
The case is People v. Traster, B158270.
Copyright 2003, Metropolitan News Company