People v. Stark

26 Cal. App. 4th 1179 (1994)

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Nature of the Case

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Facts

Doctors Johnson and Martin contracted with D to build a medical facility for approximately $350,000. D received progress payments from a construction loan obtained by the doctors. D was to pay the subcontractors and materialmen who had either performed work or provided materials for the job. By February 15, 1990, d had received three draws totaling about $245,000. The doctors received several calls from subcontractors and materialmen stating that they had not been paid. The doctors talked with D and agreed that they would write the checks to the subcontractors and materialmen. The building was completed, and the doctors issued approximately $70,000 in checks to subcontractors and material suppliers from the fourth draw. The doctors continued to receive calls from people who had not been paid. D finally came clean and confessed that he had diverted money to other jobs and promised to pay the money back. After continued nonpayment, the doctors reported the acts to the district attorney. They estimated that $46,000 was missing. D admitted the diversion but always stated his intent was to pay the money back. Penal Code section 484b provides in pertinent part: 'Any person who receives money for the purpose of obtaining or paying for services, labor, materials or equipment and willfully fails to apply such money for the such purpose by either willfully failing to complete the improvements for which funds were provided or willfully failing to pay for services, labor, materials or equipment provided incident to such construction, and wrongfully diverts the funds to a use other than that for which the funds were received, shall be guilty of a public offense . . ..' D was convicted and appealed. D claims that the jury was wrongfully instructed that the crime was a general intent crime.