People v. Kronemyer (189 Cal. App. 3d 314, 1987)

Opinion

WORK, J.

—Attorney Robert Kjronemyer appeals a judgment convicting him of four counts of perjury (Pen. Code, § 118) and eleven counts of grand theft (§487, subd.l), with true findings two thefts exceeded $25,000 (§ 12022.6, subd. (a)) and two others exceeded $100,000 (§ 12022.6, subd. (b). After making full restitution to the estate of the client from whom he was found to have stolen more than $936,000, he was sentenced to prison for eight years, and fined $80,000.

Kronemyer’s convictions arose from acts he committed while the attorney and conservator for an elderly man, Dr. Joshua L. Baily, Jr. The theft charges concerned municipal bonds, savings accounts and money Kronemyer allegedly embezzled from Baily during 1977. The perjury charges arose from conservatorship accountings Kronemyer filed in 1977 and 1978 which omitted the stolen property. The People argued Baily became senile after an illness in June 1977, enabling Kronemyer to steal the assets and conceal the theft by omitting the property from the conservatorship accountings. Kronemyer claims Baily gave him the property in consideration for lifetime care, a condition he claims to have fulfilled. His defense to the perjury charges was that he did not interpret the estate accounting to require including Baily’s gifts to him which were complete before the conservator-ship was established.

With the exception of one count, Kronemyer does not argue that substantial evidence does not support the judgment. Rather, he contends that because the record provides substantial evidence in support of acquittal, delaying prosecution until after Baily died precluded his corroborating Kronemyer at trial. This procedure, coupled with numerous trial court errors, allegedly deprived him of a fair trial. He further claims a multitude of errors in pretrial and voir dire rulings, evidentiary rulings, injury instructions, and errors in sentencing compel reversal.

For the reasons which follow, we conclude there is no statute of limitations bar to prosecuting any of the crimes charged. We affirm the four convictions for perjury and one count of grand theft based on the larceny of funds from Dr. Baily’s four bank accounts. We reverse eight convictions for theft of property entrusted to Kronemyer, because of a material defect in the instruction defining embezzlement. We find no other reversible error.

Factual Background

The posture of this appeal requires we detail the extensive and convoluted history of the Baily-Kxonemyer relationship.

Before becoming a client of Kronemyer, Dr. Joshua Baily was an affluent, but reticent, elderly man, who insisted his attorney, Kerber Gibbs, pay his taxes and most of his personal bills. Gibbs and his wife were also social friends of Baily and his wife. In 1963, the Bailys hired Lishie Kelly as a housekeeper. When Mrs. Baily died two years later, the normally reserved Baily withdrew further from society. Kelly’s duties included driving him around San Diego. During the 1970’s Kelly routinely drove him to various financial institutions where he maintained accounts, as well as to his stock broker and attorney.

In 1971, Gibbs arranged for Kronemyer to represent Baily and assume the same basic attorney-role that Gibbs had performed. Baily began keeping certain municipal bonds in Kronemyer’s office for safe keeping. In 1972 when Baily took a trip out of state, he gave Kronemyer power of attorney over one savings account to pay his June income tax.

Before retaining Kronemyer, Baily had written a holographic will and codicils generally designed to fund publication of his proposed scientific treatise dedicated to the proper naming and classification of all mollusks and brachiopods on America’s west coast. This will provided for printing 3,000 hard-bound sets of his work, to be distributed free to museums, universities and similar institutions at an estimated cost of between $800,000 and a million dollars, substantially the bulk of Baily’s estate. At some point, Baily told Kronemyer his work was becoming obsolete because of modem technology. He then executed further codicils increasing personal bequests to his niece-in-law, Kamilla Baily, and her children who had moved to the San Diego area after his wife died, and his niece, Ellen Brown and her children who lived in Pennsylvania. Later in 1972, he executed a fourth codicil dealing with a trust for his brother naming Kronemyer executor. A fifth codicil raised Kamilla’s bequest to $10,000 and her childrens’ to $5,000 each. In late 1976, Daily executed a seventh codicil to equalize the bequests to Ellen’s and Kamilla’s respective families.

Daily lived across the street from Dr. Edwin Corwin, and became his patient in November 1976. On June 4, 1977, Corwin found Daily lethargic and noncommunicative, and admitted him to a hospital. While Daily was hospitalized, Kronemyer took possession of all Daily’s savings account passbooks and other financial documents, telling Kelly he wanted to hold them in a safe place.

After Daily was released in mid-June, Corwin found Daily’s mental condition had deteriorated markedly; he was confused, lethargic, reluctant to communicate and forgetful. Corwin diagnosed senile dementia. The previously alert Daily did not know the President’s name and was usually unaware of the day of the week. Corwin believed Daily never regained his normal mental state; had lost the capacity to comprehend or evaluate complicated legal documents or recall what he owned; and could no longer understand the meaning of a codicil to a will, a deed of gift or a tax return. Although Daily’s memory for recent events improved by August 1977, he soon permanently regressed. The jury also heard three defense-called physicians, including Dr. Frederick De La Vega (the admitting and attending physician at Scripps), Dr. Wayne Monsees (an opthamologist), and Dr. John Robuck (a psychiatrist). De La Vega observed nothing to question Daily’s mental functioning while he was in the hospital in 1977. Monsees testified that during a January 1978 eye examination he observed no impaired mental function. Finally, Dr. Robuck challenged Corwin’s diagnosis. He concluded Daily suffered from a mood disorder known as pseudodementia, caused by a major depressive episode which can produce impaired memory and difficulty in thinking.

After returning home from the hospital, Daily was attended by private nurses. Several testified he was generally confused and disoriented; would forget he had just eaten or showered; would forget why he summoned the nurse; would hallucinate; had a faulty memory; did not know the day, month or year; and told one of them he had signed documents for Kronemyer without knowing what they were.

Several of Daily’s friends and relatives who saw him after his illness, noticed a significant deterioration in his mental and physical faculties. Cumulatively, they characterized him as being frightened, clinging and child-like; forgetful; unable to concentrate, read or write; very affectionate; senile; and confused. Kamilla, who first met Daily in 1949, had a close relationship with him and his wife. Defore his illness, she found him brilliant and very formal with few displays of affection to people. After his release from the hospital, he significantly declined in mental function, being unable to remember the people who had visited him; becoming demonstrative in his conduct; appearing child-like in the way he related to people; and incapable of understanding a legal document.

After Baily’s illness, Kronemyer became increasingly involved with Baily’s existence. He visited him regularly and placed a photograph of his family in Baily’s residence and later put a framed photograph of himself and his family in Baily’s bedroom. He assumed all decisionmaking for Baily’s affairs, determining how much would be spent for food and nurses and writing the checks on Baily’s account to pay the bills. Kronemyer was angry when Kelly told him she had given Baily’s safe deposit box key to Kamilla Baily.

After his hospitalization, Baily told Kelly he would increase his bequest to her and directed her to call Kronemyer to prepare the documents. When he failed to come, Baily ordered her to call him again. When she complied she was admonished by Kronemyer not to talk to Baily about money. Kronemyer came to the Baily residence on July 5, 1977, and had Baily execute an eighth codicil. On July 25, Kronemyer again went to the Baily residence where he summoned Kelly into the bedroom and told her he had prepared a codicil to Baily’s will. Baily signed the codicil which Kronemyer covered with a sheet of paper so only the signature line was showing. This document, the ninth codicil, limited the bequest to the San Diego Natural History Museum for publishing Baily’s manuscript to $50,000 and divided his residual estate into six parts, one part to go to Kronemyer, identified in the codicil as Baily’s close friend for 25 years whom he regarded as a son.

The Offenses

Grand Theft of Baily’s Savings Accounts (Counts 5 Through 8) and Municipal Bonds (Counts 11 Through 13)

Counts five through eight and eleven through thirteen are based on Kronemyer’s sale of certain of Baily’s municipal bonds and closure of six of Baily’s savings accounts. Kronemyer obtained purported deeds of gift executed by Baily covering the cited savings accounts and municipal bonds, one dated April 4, 1977, and the other July 1, 1977. Each document was accompanied by a designation letter, setting forth additional assets from which Kronemyer was authorized to pay the tax on the gift to which it related.

More particularly, on July 12, 1977, Kronemyer closed two Baily accounts at Central Federal in La Jolla, one containing $30,682.27 and the other $10,631.06. (Count 5.) He deposited the proceeds in his own account at San Diego Federal. On August 9, 1977, he closed that account and transferred the funds to his trust account at Bank of America. On July 14,1977, he closed three of Baily’s accounts: $8,287.26 at California First Bank, $15,613.05 at that bank (count 6), and $22,707.64 from Baily’s account at Imperial Savings and Loan (count 7). He deposited these proceeds into a 90-day savings certificate in his name at Central Federal. On August 9, he closed that account and deposited the proceeds, into the Kronemyer and Kronemyer Trust Account at Bank of America. And, on July 15, 1977, Kronemyer withdrew $14,257.65 from an account Baily maintained at San Diego Trust and Savings Bank. (Count 8.) He deposited those funds into an account in his own name at First Federal Savings, which he later closed on August 9, 1977, and deposited the proceeds into another of his accounts.

Kronemyer also sold Baily’s municipal bonds and received the proceeds in the form of a $148,018.88 (count 11) check payable to him. Kronemyer deposited this check into his law firm’s client trust account. On December 13, 1977, hé sold additional municipal bonds which he had obtained from Baily’s safe deposit box in November, receiving a check made payable to him and his wife for $52,197.91. (Count 12.) In March 1978, Kronemyer sold Baily’s remaining municipal bonds and received a check made payable to him and his wife for approximately $615,000. (Count 13.) All funds generated by the above transactions sooner or later wound up in Kronemyer’s personal accounts.

Perjury Charges (Counts 1 Through 4)

The perjury charges arose out of Baily’s conservatorship. On September 13, 1977, a petition for the conservatorship was filed by Olivia Davis, at the request of Kamilla Baily and the Browns. Kronemyer opposed and filed a counter petition seeking to be named conservator. On October 5, 1977, Kronemyer was named conservator on condition he file an accounting of all Baily’s financial transactions and properties which he had processed in the 12 months before filing the petition. On October 18, 1977, he signed an accounting under penalty of perjury, representing he had handled all of Baily’s financial transactions through a checking account at San Diego Trust and Savings Bank. The inventory did not list the savings accounts which Kronemyer had closed, nor even hint he had personally obtained their proceeds. Further, it omitted reference to Baily’s municipal bonds and their proceeds. (Count 1.)

On January 5,1978, Kronemyer signed a final inventory and appraisement under penalty of perjury declaring it identified all of Baily’s assets within his knowledge or possession. He did not report the November 1977 sale of Baily’s bonds or their proceeds. (Count 2.)

On December 13, 1978, Kronemyer filed a first current accounting and report of conservator asserting under penalty of perjury he had set forth all expenditures he had made on behalf of Baily from November 4, 1977, to November 3, 1978. Kronemyer omitted the property he appropriated from Baily, including municipal bonds (which he had sold and their proceeds) and Baily’s 1977 tax refund. (Count 3.)

On February 1, 1978, Kronemyer signed under penalty of perjury an inventory and appraisement, declaring it contained a true statement of all of Baily’s assets within his knowledge and possession. Again, it failed to mention Baily’s property which Kronemyer had received. (Count 4.)

Grand Theft Via Attorney Fee Checks (Counts 14 Through 18)

These remaining counts were based on Baily monies Kronemyer withdrew from his client trust account in the guise of attorney fees. Specifically, on July 18, 1977, he deposited into his trust account certain checks payable to Baily ($8,090.93 from the Girard Bank; $375 from Pacific Gas and Electric; and $121.60 from Medi-Care), and wrote a $6,000 check on the trust account made payable to Kronemyer and Kronemyer, bearing the notation “Transfer to fees from Dr. Baily Account.” (Count 14.) On August 3, after depositing several checks payable to Baily into his trust account, Kronemyer wrote a check to his firm on that account for $1,000, bearing the notation “Transfer to fees from Dr. Baily Account.” (Count 15.) On September 2, 1977, Kronemyer deposited several checks payable to Baily and then wrote a check on the trust account for $ 1,000 made payable to his firm with the same notation. (Count 16.) On September 13, 1977, Kronemyer deposited into his trust account two checks made payable to Baily and wrote a $10,000 check on the trust account to his firm with the same notation. (Count 17.) Finally, on October 3, 1977, Kronemyer wrote a check on the trust account for $1,000 payable to his firm, bearing the notation “Transfer to fees from Dr. Baily account for monthly retainer for September 1977.”

Procedural Background

Kronemyer was charged with 14 counts of grand theft and 4 counts of perjury. The original indictment was filed June 24, 1982, alleging the offenses occurred in 1977 and 1978. Before trial, Kronemyer unsuccessfully moved for dismissal on the ground the three-year statute of limitations (former § 800) had elapsed. Following a jury trial and a three-day deliberation, Kronemyer was convicted of four perjuries and twelve grand thefts. The court denied probation and he was sentenced to the upper term of three years on count 13, with an additional two years pursuant to the section 12022.6, subdivision (b), and to three consecutive one-third middle term’s terms for a total of eight years. The remaining terms were imposed concurrently, except the two-year term for count 11 was stayed pursuant to section 654. The court also imposed $80,000 in fines.

The Statute of Limitations Does Not Bar Kronemyer’s Prosecution

Kronemyer challenges the trial court’s refusal to dismiss the information and indictment as barred by the three-year statute of limitations stated in former section 800, subdivision (c), requiring prosecution for grand theft or perjury within three years after their discovery.

Kronemyer contends David Miller, Baily’s friend and neighbor, “discovered” facts sufficient to alert him to these crimes no later than September 1978, more than three years before the indictment. He asserts Miller was an eligible discoverer under section 800 because he was a victim, or at least an aggrieved party, because of his role as a director of the Natural History Museum which was a residual beneficiary of Baily’s estate. Further, his knowledge was sufficient to impel a reasonable man to investigate the matter. Kronemyer also contends Kamilla, a will beneficiary, “discovered” the alleged offenses more than three years before the indictment was filed. As we shall explain, the statute of limitations does not bar this prosecution because neither Miller nor Kamilla discovered Kronemyer’s crimes or were aware of sufficient facts to make them suspicious of his criminal activity, nor did they qualify as discoverers for the purpose of triggering former section 800, subdivision (c).

Although the statute is silent on the subject, the limitations period of section 800 has been construed in People v. Swinney (1975) 46 Cal.App.3d 332, 344 [120 Cal.Rptr. 148] (disapproved on other grounds in People v. Zamora (1976) 18 Cal.3d 538, 564-565, fn. 26 [134 Cal.Rptr. 784, 557 P.2d 75]), as commencing from the date either the victim or law enforcement personnel learn of facts which, when investigated with reasonable diligence, would make that person aware a crime had occurred. (Accord People v. Zamora, supra, at pp. 562,571-572.) Here, the direct victim, Dr. Baily, never knew of any theft or perjury. Kronemyer does not contend any law enforcement official knew facts which would have put that person on notice before 1981.

Kronemyer claims Miller and Kamilla, although neither direct victims nor law enforcement officers, qualify as discoverers. No California reported decisions have specifically addressed whose discovery triggers the operation of the statute or the scope of the term “victim.”

A major policy underlying former section 800 is to protect individuals from having to defend themselves against charges after material facts have become obscured by the passage of time. (Toussie v. United States (1970) 397 U.S. 112, 114-115 [25 L.Ed.2d 156, 90 S.Ct. 858]; accord People v. Zamora, supra, 18 Cal.3d 538, 546.)

However, when the delay is created by the fraudulent legal machinations of one who uses the court’s process to have himself appointed conservator of his victim’s estate, it is difficult to sympathize. Here, Kronemyer made every effort to prevent discovery of any criminal activity. While he obviously intended to prevent his crimes from ever being detected, he certainly consciously acted to create the maximum delay in discovery. Having thus acted, he should not now be heard to complain he would have desired to have been tried sooner.

Kronemyer relies on other states’ tolling statutes based upon concealment which specifically designate persons other than law enforcement persons and direct victims as “discoverers.” In particular, Alaska (Alaska Stat., § 12.10.020), Illinois (111. Ann. Stat., ch. 38, § 3-6) and Montana (Mont. Code Ann., §45-1-205) refer to persons with a legal capacity to represent the victim. However, one does not have a legal capacity to represent any person absent court appointment or statutory authority. Kronemyer’s contention that because they were residuary beneficiaries Miller and Kamilla had the legal capacity to represent Baily’s interest under Probate Code section 2616 strains the interpretation of the phrase. Probate Code section 2616 merely designates persons with standing to petition in a probate action so the court may examine others alleged to have wrongfully concealed or disposed of a ward’s or conservatee’s property. The petitioner may be a creditor or any person having an expectancy or prospective interest in the estate. However, that petitioner is really representing him or herself, and the only legal capacity flowing from this section is to create a standing in the petitioner.

Illinois, Montana and Alaska statutes refer to “legal capacity to represent an aggrieved person,” while other states with similar statutes refer to persons with the “legal duty to represent aggrieved party.” Or, as in the case of Ohio, the “legal representative of aggrieved person.” (See Ohio Rev. Code Ann., §2901.13.) We believe the term legal capacity as used in the Illinois, Montana and Alaska statutes is synonymous with persons “having a legal duty” to represent the aggrieved party. This interpretation is consistent with the statutes of every state designating who may be a discoverer for the purpose of triggering the statute of limitations by limiting the class to those persons who are either the direct victim of the crime, a person with a legal duty to report the offense, or a person standing within a legal relationship to the direct victim which gives rise to a duty in law to act in the victim’s behalf.

Kronemyer contends, in any event, Miller, as a director of the museum, is a victim or aggrieved party of the alleged offenses; and, even under Swinney and Zamora, his discovery of the above facts triggered the statute of limitations. However, while Miller was a director of the museum which was itself a residuary beneficiary under Baily’s will, he is not personally aggrieved. As a director he had certain powers to represent the museum’s interest and Kronemyer suggests that since an institutional “victim” could never discover a crime, its representatives must be deemed to be “discoverers” of offenses which injure it financially. From this Kronemyer argues that Miller had a motive to report the crime. However, the statute is not designed to influence persons who are not otherwise motivated to report suspicious conduct to do so. It is to prevent persons directly affected by the crime or those persons who have a legal duty to investigate and timely prosecute criminal activities from denying a suspected criminal a speedy trial.

Kronemyer argues the statute should begin to run on discovery by anyone who, because of some special interest in the victim or the subject matter, is reasonably likely to discover and report the offense. He contends that only when no such other person discovers the crime should the statute be deferred until discovery by law enforcement. The states which do consider the matter of competency of the direct victim address this problem by denoting persons having the legal capacity to act for the victim as discoverers. Here, that person is Kronemyer himself as conservator. No other person had the legal status to act for Baily. A person having status as a matter of law to act for an incompetent is invested with the incompetent’s quasi-identity so that notice to that person is treated as legal notice to the incompetent for the purpose of bringing suit. No such status is vested in neighbors, friends or relatives regardless of their degree of concern for the interest of the incompetent victim. We do not believe fairness and common sense require a class of “discoverers” to include all members of the general public, neighbors, residuary beneficiaries or nieces-in-law of victims who fail to investigate or advise law enforcement officials of mere suspicions of wrongdoing.

Kronemyer argues Miller was especially interested in Baily’s affairs and therefore should be considered a discoverer. While he does not define the limits of such a class, he notes the phrase “persons interested in the prosecution” has been used to trigger a statute of limitations in Georgia. However, the phrase as applied to the facts of the cases referred to (State v. Brannon (1980) 154 Ga. App. 285 [267 S.E.2d 888], and Taylor v. State (1931) 44 Ga. App. 64 [160 S.E. 667]) each involved persons who were either direct victims or members of a law enforcement agency.

In any event, Miller has not been shown to have had sufficient information to put him on notice a crime had occurred, nor did he have any special legal relationship to the victim obligating him to act on the latter’s behalf or to report the matter to law enforcement agencies. Factually, Miller and the victim had a mutual longtime involvement with the Natural History Museum where Miller served as director. In 1975, Baily told Miller he had given certain bonds to Kronemyer for which he had "not gotten a receipt. At Miller’s suggestion, Baily stated he would obtain one. Miller also was concerned as early as 1975 about Kronemyer serving both as Baily’s accountant and lawyer.

After Baily became ill he never spoke of his estate to Miller except to tell him some day the Natural History Museum would be “well remembered” by him. In January or February 1978, Miller received a copy of the final inventory and the order appointing Kronemyer as conservator with the accounting for the period September 13, 1976, through October 2, 1977. Later Miller was shown a receipt for the bonds which Baily had discussed with Miller in 1975. He noticed the receipt referred to bonds which were not listed in the conservatorship accounting. Miller did not suspect wrongdoing, merely speculating the bonds may have been handled in a manner which did not require them to be listed on the inventory.

Kronemyer contends that Miller must have discovered the offenses no later than September 22, 1978, when, knowing Kronemyer had at one time held some of Baily’s bonds which had not been listed in the sworn inventory, he wrote a memorandum stating these facts and concluding “this must be investigated.” However, there is no evidence Miller knew anything other than certain bonds which Kronemyer had previously received from Baily had not been reported on one inventory. Miller’s earlier information was obtained in 1975 and he had no reason to believe that the later inventory should have listed them. Miller did, however, notice the omission and believed it should be investigated. His concerns were not because of suspected criminal wrongdoing, but merely because he believed the then incompetent Baily may have forgotten some of his possessions. It is not established Miller even suspected Kronemyer currently held these unlisted bonds or had deliberately not listed them in the inventory. Further, it is not shown Miller knew the terms of Baily’s will or that any depletion of his estate by virtue of the missing bonds would affect the museum.

Even less so was Kamilla aware of any facts putting her on notice of possible criminal wrongdoing. Although she knew she was a beneficiary under the will, she had no legal capacity to act for Baily.

For the purposes of triggering the statute of limitations under a similar tolling statute, a discovery was held not to have occurred even though officials learned substantial facts which would have only created a suspicion of wrongdoing. (Com. v. Hawkins (1982) 94 Pa. Super 57 [439 A.2d 748].) Similarly, in People v. Swinney, supra, 46 Cal.App.3d 332, 337, the court concluded the triggering of a period of limitations on concealed thefts requires more than mere discovery of a loss; it requires an awareness the loss occurred by virtue of a criminal agency. Thus, “discovery” calls for awareness of the crime, not merely the loss. Here, neither Miller nor Kamilla knew the bonds were missing. While a duty to exercise reasonable diligence in looking after one’s own affairs may justify a policy that direct victims do so to uncover evidence of criminal wrongdoing, there is no policy reason to impose such a duty on third persons in order to benefit criminals who are actively engaged in concealing evidence of their crimes.

Insofar as a thief is entitled to the benefits of a discovery statute, we believe it should extend no further than those persons who are direct victims, persons having a legal duty to report and investigate crime, and those persons who are clothed with a status imposed by law as guardian, conservator or equivalent, in the absence of express statutory direction.

The Trial Court Did Not Commit Reversible Error in Unduly Restricting Voir Dire

Kronemyer next argues the court committed reversible error in not letting him ask potential jurors about their experiences with elderly people. Kronemyer states he desired to voir dire prospective jurors to determine whether their personal life experiences in observing and interacting with elderly persons would make them unable to objectively weigh his defense that the elderly Baily knowingly gave him almost a million dollars in bonds and cash, and made him a beneficiary of a trust and in the residuary of his estate.

In particular, Kronemyer elicited from the first panelist that her 72-year-old grandfather was senile, suffered from loss of memory in the early stages of his senility, described the objective signs of his forgetfulness and that he fluctuated between a very confused state and one in which he seemed very clear. He was then precluded from asking whether she could imagine elderly persons being so afraid of loneliness that they would try to insure their security by giving gifts, presents, money, or promises of money to somebody. The defense then attempted to ask the second panelist about the state of mental health of a 97-year-old neighbor whose physical health was described as “pretty good.” The court rejected this effort and refused to allow inquiry about personal experiences. The court did allow Kronemyer to generally question on the subject as long as he did not go into personal experiences. Kronemyer claims his voir dire was so restrictive he was unable to inquire specifically whether the prospective juror could imagine an elderly client and his attorney becoming so close the client would bequeath or give the attorney money, and to follow up with an inquiry as to “what they think about that.”

Kronemyer was entitled “to ask questions reasonably designed to assist in the intelligent exercise of peremptory challenges whether or not such questions are also likely to uncover grounds sufficient to sustain a challenge for cause.” (People v. Williams (1981) 29 Cal.3d 392,407 [174 Cal.Rptr. 317, 628 P.2d 869].) However, voir dire may not be employed to educate prospective jurors on the particular facts of a case “ ‘to compel... [them] to commit themselves to vote a particular way, to prejudice ... [them] for or against a particular party, to argue the case, to indoctrinate ... [them], or to instruct ... [them] in matters of law.’ ” (Id., at p. 408; quoting Rosseau v. West Coast House Movers (1967) 256 Cal.App.2d 878, 882 [64 Cal.Rptr. 655]; People v. Helton (1984) 162 Cal.App.3d 1141, 1145 [209 Cal.Rptr. 128].) Nevertheless, fairly phrased voir dire questions legitimately designed to disclose personal features of a juror’s personality or life which have a direct bearing upon a challenge for cause or to reveal attitudes relevant to the exercise of an intelligent peremptory challenge may not be excluded merely because they tend to educate a juror as to the defendant’s line of defense. (See People v. Wells (1983) 149 Cal.App.3d 721, 726 [197 Cal.Rptr. 163].)

We believe the trial court erred in refusing to allow inquiry of prospective jurors as to whether they could imagine that a competent, but lonely, elderly client might voluntarily make a substantial gift to his or her attorney. The answer to such questions would be either yes or no. A person who could not conceive that such a gift could occur is arguably subject to being excused for cause as not having an open mind in this case. In any event, it is a legitimate inquiry for a peremptory challenge. Even though a person only finds it “difficult to imagine” such a scenario, this revelation suggests additional directly relevant questions concerning the impartiality of such a person to be a juror on the facts of this case, irrespective of that person’s verbal assurance he or she could be impartial and set aside any personal attitudes. A verbal statement he or she will set aside any personal experiences and/or attitudes concerning a particular state of facts, standing alone, does not establish that person will be a fair and impartial juror. In order for a party, and even the court, to make such a determination it is necessary to know the nature of those experiences and attitudes and how strongly they are held. An averment that one can set aside personal experiences in judging a case is of little value because one simply may not be aware of the strength, or perhaps even the existence, of biases which have developed because of personal experiences. (See People v. Williams, supra, 29 Cal.3d 392, 402-404.)

Nonetheless, a trial court has considerable discretion to contain voir dire within reasonable limits. (People v. Wells, supra, 149 Cal.App.3d 721, 726; see also People v. Helton, supra, 162 Cal.App.3d 1141, 1145.) For instance, questions may be rejected which are worded argumentatively. Here, the “can you imagine” form of the questioning may well be incorrect, but the remedy is not to curtail inquiry into the subject matter it contains but rather to force a party to reframe the question.

On the other hand, restrictive voir dire is not prejudicially reversible per se. People v. Williams, supra, 29 Cal.3d 392, ruled that where potential for bias relates only to a particular doctrine of law, its materiality to the issues in the case should be reviewed in evaluating the prejudicial effect of denying voir dire on that subject. Applying a similar standard here, we find the inquiry is directly relevant to the defense, i.e., that a lonely, elderly, wealthy client gave the major share of his liquid assets and bequested a substantial portion of the remainder of his estate to his attorney. Here, where the gifts allegedly occurred immediately before and after the client became mentally debilitated, even the most objective person might reasonably be expected to doubt the bona fides of Kronemyer’s version. In fact, with the publicity surrounding the reported defalcations of attorneys toward their clients and client’s property, we believe it is a matter falling within the category of those “ ‘which either the local community or the population at large is commonly known to harbor strong feelings that may ... significantly skew deliberations in fact.’ ” (See People v. Williams, supra, 29 Cal.3d 392, 408, quoting United States v. Robinson (D.C. Cir. 1973)475 F.2d 376, 381.) Thus, we find the scope of the inquiry to be exceptionally relevant.

We have carefully read the entire record of voir dire, evaluating prejudice, mindful that, unlike the facts in People v. Williams, supra, 29 Cal.3d 392, the court’s ruling did not completely foreclose the defense inquiry into the relevant area. The defense voir dire of most prospective jurors was extremely cursory and with no attempt to ask questions even in the depth permitted by the trial court. The defense exercised only one peremptory challenge. Given the relevant information which could have been elicited upon proper questions within the confines of the trial court’s rules, there is no prejudice.

Kronemyer Was Properly Convicted of Perjury in Count One (His Preconservatorship Accounting)

Count one alleged Kronemyer committed perjury on his preconservatorship accounting filed on October 18, 1977. His defense was that under a reasonable interpretation of the probate court’s order requiring the accounting, the accounting was literally true. He claims the court erred in (1) not entering judgment in his favor at the close of the prosecution case; (2) excluding evidence supporting his defense; and (3) prejudicially changing a subtle jury instruction defining the term “process” after the defense had relied upon it in final argument.

The Motion for Acquittal

The probate court conditionally granted Kronemyer’s petition for appointment as Baily’s conservator on condition he first “fully account for all financial transactions and the properties of the conservatee in any way processed by petitioner during the 12 months immediately preceding the filing of the petition.” The accounting listed only financial transactions Kronemyer conducted for Baily through the joint checking account from which he routinely paid Baily’s bills. He did not list any transfer of bonds, savings accounts and checks from Baily to himself. Kronemyer stated, under penalty of perjury, that he handled all financial transactions of the proposed conservatee during the period through checking account No. 10291038 maintained by the proposed conservatee at San Diego Trust and Savings Bank, Main Office at 540 Broadway, San Diego, California 92101.

Kronemyer argues the order of the probate court may be reasonably interpreted as requiring only a listing of the routine financial transactions through “all the accounts he had had over the years with Baily.” Because this bill-paying account was the only one Kronemyer had had “over the years” with Baily, he assumed he was required to list nothing except transactions through this account. He did not include financial transactions through which he acquired Baily’s bonds, bank accounts, and checks because they had nothing to do with that account.

Kronemyer’s motion for acquittal under section 1118.1 was denied, because the trial court believed the reasonableness of Kronemyer’s interpretation remained a question of fact. The trial court was correct. Here, the probate court’s order was made following a contested hearing in which the court was made aware that for some period of time both before and after Baily’s disability, Kronemyer had been acting as his lawyer, accountant and was handling all his financial affairs. The order was made to insure Kronemyer had conducted these financial affairs as required by the strict fiduciary relationships existing towards Baily. The accounting was unquestionably ordered to satisfy the probate court that Kronemyer was a person who could be trusted to carry out the strict fiduciary obligations of a conservator of Baily’s person and estate. It was requested because of concerns that Kronemyer might have committed improprieties in dealing with Baily’s property raised during the contested hearing. Therefore, at the very least, the trial court was correct in allowing the issue to go to the jury.

Kronemyer argues his interpretation and not that of anyone else must prevail when an ambiguous order is given. Even though a declarer knows his interpretation is contrary to the interpretation found by the person making an order or posing a question, so long as the declarer states the literal truth “in light of the meaning that he, not his interrogator, attributed to the questions and answers,” it will not support a perjury conviction. (Bronston v. United States (1973) 409 U.S. 352, 359 [34 L.Ed. 2d 568, 574, 93 S.Ct. 595]; see In re Rosoto (1974) 10 Cal.3d 939, 949 [112 Cal.Rptr. 641, 519 P.2d 1065, 69 A.L.R.3d 980].) However, Kronemyer’s contention that “all financial transactions and the properties of the conservatee in any way processed by petitioner” was ambiguous as a matter of law so that the trial court should have granted the judgment for acquittal is simply not correct on this record. A jury could find beyond a reasonable doubt that, as to Kronemyer, the court’s order could be reasonably interpreted only one way, and that Kronemyer deliberately lied when he declared he handled all Baily’s financial transactions during the relevant period through the bill-paying checking account.

Kronemyer claims the prosecution had to prove he did not believe the court order could be interpreted the way he claims to have done so in order to avoid a judgment of acquittal under section 1118.1. He equates the facts of this case with those in United States v. Wall (6th Cir. 1967) 371 F.2d 398, where the court stated: “There was no evidence to show what the question meant to Mrs. Wall when she answered it. In the absence of such evidence, no determination could be made as to the falsity of her answer.” (Id. at p. 400.) The court therefore held the district court should have granted a judgment of acquittal. However, in Wall the defendant was asked whether she had “ever been on trips” with a certain person. When she denied this she was convicted of peijury on evidence that she had been observed leaving a motel room with that person. The court found that the phrase “on a trip” with someone could mean either traveling together or staying together, and because there were two reasonable interpretations the prosecutor had to show the defendant understood the question related to staying together. A similar fact situation is discussed in United States v. Cowley (9th Cir. 1983) 720 F.2d 1037. Here, however, the trial court correctly found Kronemyer’s suggested interpretation was not plausible and properly denied his motion for judgment of acquittal.

Exclusion of Testimony

Kronemyer next claims the trial court erred in excluding expert testimony that the probate court’s order had no definite meaning in probate practice.

At trial, Kronemyer proposed to call an attorney, with 26 years of experience and a specialist in probate practice, to testify the phrase “in any way processed by him” was not commonly used in probate orders, had never been known by him to be in any probate order, and had no fixed meaning in conservatorship or probate practice. The court refused. However, it agreed to permit the witness to testify there was no provision in the Probate Code for an accounting for the period preceding the appointment of a conservator. The trial court did not abuse its discretion.

Kronemyer claims he was entitled to show the language in the order had no fixed meaning even among experienced probate practitioners. However, the prosecution never contended anything except that this order was an extraordinary one, specifically designed to fit the needs of this unique situation. The proposed witness was not to testify as an expert to interpret the meaning of the probate court order. The fact the phrase has no special settled meaning in probate proceedings was made clear to the jurors and argued extensively. Kronemyer’s claim the prosecution’s case was predicated on its argument that he, a well educated and experienced lawyer, should have known what the order was intended to cover and that he was entitled to rebut this by showing the order had no fixed meaning even among experienced practitioners, is, again, disingenuous. Kronemyer’s education and experience in conservatorship matters, and his personal involvement in the particular proceedings during which the unique order was made, is the relevant background for the prosecution’s argument. A showing that another experienced probate lawyer had never seen such an order and its phraseology was not defined in the Probate Code, in no way undercuts that contention. The material facts here are that Kronemyer was privy to the proceedings to which the order was uniquely tailored and his background and experience in the role of fiduciary and as attorney for fiduciaries. This arguably made him especially aware the order was intended to disclose all financial transactions bearing upon the condition of Baily’s estate which Kronemyer had totally administered during the accounting period.

The Jury Instruction

Kronemyer meritlessly contends the trial court erred by unilaterally modifying an instruction relating to the phrase “in any way processed by,” after his counsel had argued to the jury in reliance upon the originally agreed upon instruction.

The agreed original instruction was “The phrase ‘in any way processed by’ in ... [the] order of October 7, 1977 has no fixed or defined meaning in probate practice. The order used the English language and ‘processed’ is defined as follows: to take care of, attend to or dispose by some largely routine procedure (like the process of a loan or other similar transaction).” During argument the defense argued the court would instruct the phrase had no fixed or definite meaning in probate practice and that “processed” meant, in the context of the order, “to take care of, attend to or dispose of by some largely routine procedure.” From this the defense argued the only largely routine, repetitive matter Kronemyer handled was the bill-paying account. Further, that extraordinary transactions (gifts of savings accounts and bonds) would not fall within that definition or at least it could not be proved beyond reasonable doubt Kronemyer knew that such gifts were included.

The instruction actually given was: “Now, the phrase ‘in any way processed by’ in ... [the] order of October 7, 1977 has no fixed or defined meaning. It’s not part of the Probate Code. The order uses the English language, and process is defined as follows: to take care of, attend to or dispose of by some largely routine matter— and we are talking about attorneys, not lay people—like the proceeds—process of a loan or other similar transaction, or a series of actions directed to some end.

“That’s the Webster and New American College definition of how ‘processed’ used in the English language. Should mean what it means. No great mystery.” The defense objected to the modified instruction and asked the court to substitute the original wording. It refused.

Rronemyer claims the court’s modification violates section 1093.5 which states the court on request of counsel must advise counsel of all instructions to be given before commencement of argument. This rule is to give the parties an opportunity to intelligently argue the case to the jury. Material modifications and departures from agreed upon instructions may deprive a defendant of a fair trial. (.People v. Sanchez (1978) 83 Cal.App.3d Supp. 1, 7 [147 Cal.Rptr. 850].) We find the modification here to be de minimis. It neither changed the thrust of the instruction nor undercut the defense argument.

Rronemyer argues the insertion of the court’s comment that the order was in the English language, was of no great mystery and should mean what it means, negates his contention the order had no obvious meaning. However, this concern is not even met by the originally proposed instruction. There, the court merely states that it had no fixed or defined meaning in probate practice. The proposed instruction in no way suggested the phrase was ambiguous, or that in the context of this case it has no obvious meaning.

Kronemyer’s second complaint is that he had relied on language in the proposed instruction to argue the phrase covered only matters attended to by “some largely routine procedure.” When the court changed the wording to “largely routine matter” and added “like ... a series of actions directed to some end,” he claims his argument the gifts were not includable in the inventory because they were extraordinary transactions was vitiated. Rronemyer claims routine procedures connote an established, repetitive method of handling some recurring event, i.e., bill paying through a joint account, while routine matters imply that it is the thing being handled, not the procedure for handling, that is routine. Thus, under the latter statement, closing savings accounts would not be a routine procedure because it was not done regularly. Rronemyer does not contend the instruction incorrectly states the law, onlv that the alterations prejudiced his case because his argument to the jury would have been different had he been forewarned of the modifications. However, a comparison of the instruction as given with his jury argument does not suggest prejudice. The instruction given is substantially identical to the one proposed. The trial court’s interjection, “we are talking about attorneys, not lay people,” is a simple reminder that the matters to be characterized as routine are to be judged in the context of those matters dealt with by lawyers. This modification did not prejudice Kronemyer’s argument. The court’s further comment the dictionary definition should mean what it means, “no great mystery,” merely emphasizes there is no special technical definition in issue.

The Trial Court Properly Limited Defense Cross-examination of Dr. Corwin

Kronemyer next contends the trial court committed reversible error by preventing his impeachment of Dr. Corwin by establishing Miller told Corwin of his suspicions of Kronemyer and that Corwin had recommended a witness to the prosecution who would corroborate his testimony. Although the right of cross-examination is an essential safeguard to a fair trial and is judicially regarded as the “ ‘ “greatest legal engine ever invented for the discovery of the truth” ’ ” (People v. Gutierrez (1982) 137 Cal.App.3d 542, 547 [ 187 Cal.Rptr. 130]), we conclude the trial court did not abuse its discretion in excluding this line of cross-examination under Evidence Code section 352.

Dr. Corwin testified at length concerning his belief that Baily suffered from senile dementia continuously from approximately the time of his hospitalization until his death. He stated Baily could not identify his property or comprehend the gift documents forming the basis of the theft charges. Dr. Corwin’s diagnosis was disputed by testimony of lay witnesses and physicians. Kronemyer wished to cross-examine Corwin concerning his personal relationship with Miller to suggest Corwin was biased against Kronemyer and had a personal interest in his convictions. Thus, Kronemyer offered to prove Miller and Corwin were fishing partners; Miller told Corwin of his suspicions regarding Kronemyer’s handling of Baily’s affairs and that certain bonds Baily gave to Kronemyer did not appear in the filed inventory; and Corwin told the prosecution of a lay witness who had observed Baily’s demeanor and could support his testimony.

A witness’s potential bias is highly relevant to the jury’s ability to competently evaluate his or her credibility. (See People v. Green (1980) 27 Cal.3d 1, 19-20 [164 Cal.Rptr. 1, 609 P.2d 468]; Evid. Code, § 780, subd. (f); see, e.g., People v. Adams (1983) 149 Cal.App.3d 1190, 1192 [197 Cal.Rptr. 623].) However, the speculative nature and minimal relevance of the proffered testimony shows the court’s ruling was well within its discretion. First, the personal relationship between Corwin and Miller does not itself suggest bias. Any hypothetical suggestion, that a bias in favor of Miller would manifest itself further by being suggestive of Corwin’s bias against anyone as to whom Miller was prejudiced, is pure speculation. Further, Dr. Corwin’s diagnosis of senile dementia was essentially stated in the declaration he gave September 16, 1977, when he stated Baily suffered from chronic organ brain syndrome. Miller’s discovery that the inventory did not refer to the bonds Kronemyer had previously received was made in 1978; thus, Dr. Corwin’s diagnosis of senile dementia predated any conversation he may have had with Miller about the bonds. Corwin’s trial testimony was consistent with his 1977 diagnosis and that he may have been apprised of the inventory before testifying at trial, and that this knowledge may have influenced his trial testimony is so tangentially speculative as to have almost no relevance on the issue to which he testified.

Further, the fact Dr. Corwin told the prosecution of a potential witness to Baily’s confused mental state only shows he is a cooperative prosecution witness. On its face, that a witness cooperates with the prosecution is a neutral fact; cooperation does not imply bias. Although identification of a witness who could testify to facts supportive of Corwin’s diagnosis implies his interest in establishing his own credibility, this is not the kind of bias implying hostility toward the defendant; presumably all witnesses can be deemed to have an interest in establishing their credibility with the trier of fact. The court properly limited cross-examination of Dr. Corwin.

The Trial Court Did Not Err in Permitting the Prosecution to Cross-examine Kronemyer on His Awareness of an Attorney’s Fiduciary Responsibility to Clients and Properly Limited the Significance of Such Evidence

Kronemyer contends the trial court committed reversible error by permitting the prosecution to imply he was professionally unethical in accepting Baily’s gifts. Further, that the instructions compelled jurors to conclude he was subject to professional discipline for accepting gifts and that the breach of ethics was relevant to their decision on his guilt.

The Propriety of the Prosecution’s Cross-examination Regarding Professional Responsibility

Kronemyer testified he mentioned to Baily that he should seek independent counsel at the first mention of intent to make a substantial gift. Kronemyer did not repeat this advice when Baily repeated his gift intention.

On cross-examination, Kronemyer was asked if he knew the State Bar disciplined lawyers for receiving gifts from clients and that there existed a presumption of undue influence where lawyers accepted such gifts. Over his objection, Kronemyer was asked whether he was aware the attorney-client relationship is of a strict and confidential nature and that Civil Code section 2235 (creating a presumption of undue influence) is deemed to apply to contractual dealings between an attorney and his client. Kronemyer contends this line of inquiry was irrelevant and, even if relevant, was prejudicial under Evidence Code section 352.

This is not a case like People v. Stein (1979) 94 Cal.App.3d 235 [154 Cal.Rptr. 299], where the jury was advised it could consider an attorney’s violation of his fiduciary duties to a client as a factor tending to prove the specific intent underlying the crime of embezzlement. In other words, the jurors were told a finding Stein violated the rules of professional conduct could be bootstrapped into a finding of his specific intent to embezzle. Here, the evidence is limited to impeaching Kronemyer’s version of the events surrounding the purported gifts.

However, here the evidence relevantly sheds doubt on Kronemyer’s version of the purported gifts. This is because it is unlikely a knowledgeable lawyer would accept substantial gifts from a client, especially one whose obvious age and loneliness would bolster the presumption of undue influence leading to setting aside the gifts and potential bar discipline. Instead, if Baily was desirous of making such a gift and was competent to do so, Kronemyer, as a knowledgeable experienced lawyer, would have made sure Baily was independently advised to defeat later efforts to set aside the gifts and to avoid disciplinary action.

The cross-examination was intended to elicit information directly relevant to the People’s theory in rebutting the defense, to wit: the lack of donor intent. It assumed a prudent and knowledgeable attorney would seek to avoid the presumption of undue influence by requiring his client to obtain independent counsel, not only to preserve the gift, but also his reputation. Kronemyer’s conceded knowledge and his failure to require Baily to obtain independent counsel raises the permissible inference no donor intent existed —no series of gifts was intended. The lack of third party review suggests a desire to avoid donor intent. Accordingly, the inquiry was directed toward evidence having probative value.

The Jury Instruction

The court instructed the jury the law does not prevent attorneys from being beneficiaries in wills they draw nor from receiving gifts from clients. The court emphasized Kronemyer was not being tried for unprofessional conduct. However, the instruction also stated: “[A] lawyer can be subject to discipline for receiving a gift or bequest from a client where the gift is more than a modest one in keeping with the relationship he has with the client, and the attorney has not sent his client to another lawyer for consultation regarding the proposed gift or bequest.” The court then added the unhelpful phrase: “Whether [Kronemyer’s] actions were ethical or unethical, under the Rules of Professional Conduct, may be considered by you only in deciding the facts of the case. [11] You may not find the defendant guilty of any charge based upon a belief that his conduct was unethical.” Although it is difficult to determine what “facts of the case” were intended by this instruction, it is clear the jurors could have been under no impression that Kronemyer’s guilt or innocence was predicated upon any finding of professional misconduct. To emphasize this point, the court stated: “undue influence... is a civil rather than a criminal matter and in itself cannot form the basis for a criminal prosecution. It consists of acts or conduct by which the testator’s will is overcome by the will of another person. Importuning, so to speak. That’s not either of the People’s theory, nor is it part of this case. Is that clear to everybody?”

The court’s statement that a lawyer can be subject to discipline for receiving a substantial gift from a client without sending that client to another lawyer for a consultation does not explain a lawyer can be disciplined under those circumstances only if the presumption of undue influence is not rebutted. (See Magee v. State Bar (1962) 58 Cal.2d 423, 429-430 [24 Cal.Rptr. 839, 374 P.2d 807]; see also Eschwig v. State Bar (1969) 1 Cal.3d 8, 16 [81 Cal.Rptr. 352, 459 P.2d 904, 35 A.L.R.3d 662]; Dixon v. State Bar (1982) 32 Cal.3d 728, 739 [187 Cal.Rptr. 30, 653 P.2d 321].) Further, the lack of independent counsel is not dispositive. However, the instructions, even if not a model of clarity, did not prejudice Kronemyer.

The Trial Court Erred in Admitting Evidence of Uncharged Acts Involving Tax Refund Checks'

The court erred in permitting evidence that Kronemyer cashed Baily’s tax refunds in 1978 and 1979 as proof he engaged in prior embezzlements. Further, although these acts had never been adjudicated as criminal, the court told the jury they were prior crimes.

Kronemyer received tax refunds in the amount of approximately $9,000 on Baily’s 1977 and 1978 tax returns. When Baily endorsed the checks, Kronemyer put them in his own savings account and did not list them in the 1978 or 1979 conservatorship accountings. He claims they were refunds which became due because of a 1977 transaction when Kronemyer made an overage advance payment for Baily’s taxes. When told, Baily generously told him to keep the refunds when they were received. (“When the refund comes in, it is yours.”) The refunds were received after the conservatorship was established and Kronemyer claims he did not report them because they only represented gifts which predated the conservatorship and were never part of Baily’s estate. Although Kronemyer knew the gift tax consequences of any gift transaction in 1977, he never filed any gift tax return. Not surprisingly, the prosecution believed these transactions, although never proved to be crimes, inferred Kronemyer’s propensity to steal Baily’s property under the guise of gifts and then lie under oath about that fact.

Evidence Code section 1101, subdivision (b) authorizes the admission of character-trait evidence in the form of prior wrongful acts to prove some fact other than an individual’s propensity to commit a specific crime. (People v. Poon (1981) 125 Cal.App.3d 55, 70 [178 Cal.Rptr. 375].) Such evidence is admissible where it is relevant to the issue of the intent of the perpetrator in committing the acts charged as crimes. (People v. Thompson (1980) 27 Cal.3d 303, 314 [178 Cal.Rptr. 315]; People v. Thomas (1978) 20 Cal.3d 457, 465 [143 Cal.Rptr. 215, 573 P.2d 433]; People v. Poon, supra, at p. 70.) “However, admission of evidence of other crimes cannot be justified by merely asserting an admissible purpose; the question remains whether the particular evidence of defendant’s other offenses is relevant to the ultimate fact in dispute. [Citations.] Because there is inherent danger of prejudice to the accused when evidence of an uncharged offense is given to the jury, such evidence must be received with caution [citation], and admitted only when its probative value outweighs its prejudicial effect. [Citations.]

“Consequently, to be admissible under section 1101, subdivision (b), the ‘other of