Opinion
F051324
4-21-2008
THE PEOPLE, Plaintiff and Respondent, v. NAAZIM ABDUL HAMED, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Party Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Naazim Abdul Hamed stands convicted, following a jury trial, of grand theft (Pen. Code, § 487; count 11). Special allegations that he intentionally took more than $50,000 and $150,000 (§ 12022.6, subds. (a)(1) & (a)(2); special allegation Nos. 3 & 4, respectively), and that the amount of the theft exceeded $100,000 (§ 1203.045; special allegation No. 5), were found not true. Imposition of sentence was suspended, and Hamed was placed on probation subject to various terms and conditions, in addition to which he was ordered to pay victim restitution in the amount of $630,000. He now appeals, raising various claims of error. For the reasons that follow, we will modify his sentence by striking the probation revocation fine, but otherwise affirm.
All statutory references are to the Penal Code.
Hamed was made jointly and severally liable with codefendant Khadijah Ghafur, who was convicted of count 11, as well as numerous counts arising, for the most part, from her use of public funds to pay her personal debts and obligations. Neither Ghafur nor a third codefendant, Kehinde Solwazi, is before us on this appeal.
FACTS
I
PROSECUTION EVIDENCE
During the mid-1990s, Khadijah Ghafur spearheaded the creation of a nonprofit organization called Heritage Development Corporation (HDC), which was developed as a social service organization for the education of Muslim women and children. In 1996 or 1997, HDC purchased approximately 440 acres in the foothills of Tulare County, near Miramonte. This property, which was called Baladullah, came to be home to 30 to 50 families. Concerns about the educational needs of the school-aged children living at Baladullah led to the development of an independent-study program conducted through Sierra Summit charter school and, ultimately, to creation of Gateway Academy Charter School (Gateway). Gateways charter petition was approved by the governing board of the Fresno Unified School District (FUSD) in October 1998.
Gateway first began to have students during the 2000-2001 school year. It started with 200 students at two sites in Fresno. Hamed had students of his own prior to becoming affiliated with Gateway, and he brought a number of them with him to Gateway. Ultimately, he became Gateways chief administrative officer. Ghafur, Gateways superintendent and president of its board of trustees, was his boss.
Hamed recruited other educators to participate in Gateway. One such person was Alfonso Uribe, who became involved with Gateway in spring of 2000, when Hamed asked him to serve as a consultant. Ghafur subsequently offered Uribe the position of chief academic officer/principal, effective at such time as there were enough students to warrant, and a sufficient guarantee of average daily attendance (ADA) funds to support, that position. Uribe became Gateways principal in March or April 2001.
Uribe termed the number of students the "lifes blood" of a charter school, because the California Department of Education pays ADA money based on the number of students and their attendance. A school receives a set amount of money per student per year to operate the school, but the money is not all received up-front. The amount is predicated on the number of days a student is in attendance. If a school were not part of Gateway, Gateway would not be able to collect ADA funding for that schools students. According to Uribe, although it would not be improper for a school to have a list of potential students in order to plan for future operation, it would be improper to have those students included in the enrolled students for whom the school received money.
Charter schools were required to submit a report to FUSD for each 20-day attendance period. Judi Sommarstrom worked for Larry Powell, FUSDs associate superintendent, and received student enrollment and attendance reports from all of FUSDs charter schools. If Sommarstrom did not receive one in a timely manner from Gateway, which happened on occasion, she contacted Ghafur or Hamed. She did not know, however, who actually compiled the reports.
Habibah Amatussalam was Gateways registrar. Hamed was her direct boss. As registrar, Amatussalam collected applications from parents who wanted their children to attend Gateway, and she made sure the necessary paperwork was in order. This information was kept in Gateways files. In addition, each school site submitted attendance sheets to her once a month. From these, she prepared the student body count and attendance reports, which she gave to Hamed and, if Ghafur asked, to Ghafur.
In spring of 2000, Karl Yoder was asked by people in the financial industry whether he could help structure financing for Gateway. Yoder first contacted either Ghafur or Hamed by telephone, then met with them in Fresno, whereupon he became involved in business transactions with them. During his dealings with Gateway, it was Yoders perception that Ghafur and Hamed were operating Gateway jointly, as a team. This was his perception from general contact with both of them.
At the time, Yoder, through his firm Delta Public Finance, was an independent financial advisor to municipal entities, including charter schools. The use of municipal bonds and similar financing by charter schools was then a relatively new field within the larger field of municipal bonds.
In April 2001, Yoder was involved in obtaining a loan for Gateway. This was done by means of a note for $945,000. Wedbush Morgan Securities (Wedbush) underwrote the bond for the funding. At the time, Gateway reported an enrollment of between 500 and 700 students.
Some witnesses referred to the financial transaction as a bond, while others termed it a note. As the phraseology and differences between the two (if any) are not important for purposes of this appeal, we use the terms interchangeably.
All told, Yoder was involved in four fundings for Gateway. The first, on or about August 28, 2000, was in the amount of $256,000, and was sold to broker-dealer ML Stern & Company. The April 2001 funding was the second one. The third, on or about September 27, 2001, was in the amount of $630,000, and was also sold to Wedbush. It is this funding that is the subject of count 11. The fourth funding, on or about December 19, 2001, was in the amount of $265,000.
California uses County Offices of Education to distribute monies to school districts and charter schools. Charter schools can choose to either be direct funded, meaning they receive their monies from the County Office of Education, or to receive their funds through their sponsoring school district. The first year, Gateway chose to have money come through the school district. The second year, Gateway chose to be direct funded. Between November 30, 2000 and September 6, 2001, FUSD paid Gateway a total of more than $1.6 million in public funds, which consisted of a combination of monies received from the State of California and Gateways share of local property taxes, each of which was based on the ADA that was generated. The first two checks, issued November 30, 2000, and January 2, 2001, were based on the ADA that was projected to be generated by Gateway. In 2001, the disbursements were based on the ADA that was generated from actual attendance in the prior school year.
In May or June 2001, Hamed met with Jacquie Canfield, FUSDs fiscal services administrator, regarding ADA funding. Hamed was trying to understand why Gateway was not receiving as much money as he thought it should, since enrollment had grown considerably since the beginning of the 2000-2001 school year. Canfield explained that an ADA payment is for a certain time frame, and Gateways growth had occurred after that period. In addition, once the ADA is established for a charter school, the school will see the same amount of money the following school year until it completes a state report that will be certified the following February. Thus, Gateway would not be receiving any more money for the additional students until approximately February 2002. This news surprised Hamed, and Canfield got the impression he was a little nervous.
Near the time Gateways headquarters moved from its facility on F Street to a site on Shields (which occurred sometime after July 4, 2001), Hamed requested access to the student records and attendance records. Amatussalam saw this as a problem, because she generated the body count reports from the attendance records, and was strict concerning what happened to the documents and who had access to them. The documents detailed which students were prospective students and which students were fully enrolled. Amatussalam did not submit prospective students to FUSD for the purpose of generating ADA funds. The actual student count was submitted by her to Hamed, and it was his responsibility to send that information to FUSD. It was also his responsibility to prepare the ADA reports.
During this time, Amatussalams working roster, which contained information on all students who applied and not just those who were actually enrolled, was sent to FUSD. When FUSD complained, Hamed and Ghafur asked Amatussalam whether she had sent the list. Ultimately, Hameds wife admitted sending it. Hamed told his wife not to send anything and not to touch anything she found on anyones desk. For Amatussalam, this did not explain how Hameds wife came to have the working roster, as it had not been printed or distributed, but instead was kept on Amatussalams computer. In Hameds presence, his wife said that Hamed told her to send the document to FUSD.
Amatussalam reported this incident to Ghafur, who said she would look into it. At some point, Amatussalam paid to have locks put on the file cabinets, and she then kept the student files locked. She also paid for a computer person to come in and network the computers, so that everything that could be accessed without a problem was placed in a shared file, while passwords were assigned to sensitive information. This caused problems, because Hamed wanted access to the files, and staff would not comply. Both Hamed and the facilitator at one of the outside sites asked Amatussalam to unlock her files, but she refused, as documents had been changed, attendance sheets had been altered, and there were files with missing records. Although Amatussalam had no information that Hamed had anything to do with that, it caused her concern when Ghafur announced to the staff of the registration office that Hamed was their immediate supervisor, had the power to hire or fire, and was to receive access to the records as he requested. After the move to the Shields facility, there was no lock on the door to Amatussalams office, and the file cabinets did not lock. The student enrollment list on Amatussalams computer remained passworded, however.
Under FUSDs memorandum of understanding, charter schools were required to present a proposed budget to FUSD. They were also required to present projections twice a year, and actuals at the end of the year. The budgets needed to be reasonably accurate. The original budget that Gateway submitted in June for the 2001-2002 school year was similar to that for the 2000-2001 school year and was somewhat less than $2 million. In September 2001, however, there was a meeting about Gateway obtaining a loan. The budget submitted at that time was more than $7 million. Moreover, Gateways unaudited actuals showed a deficit of approximately $1 million, increasing to about $1.3 million. FUSD wanted to understand the difference and why the estimated actual submitted in June showed a positive number, and Hamed was one of the people to whom Canfield spoke about this. At some point, FUSD asked for documentation from Gateway on how it would be able to grow to 1,000 ADA when it had been at 250 ADA the prior year. None of the information provided by Gateway allayed FUSDs concerns over Gateways negative number.
An "unaudited actual" is a charter schools representation, to the best of its knowledge, of its revenues, expenditures, assets, and liabilities for the prior fiscal year. It is not a projection, meaning, in this instance, that Gateway had spent $1.3 million more than it had taken in during 2000-2001. Part of the deficit could have resulted if Gateway had hired additional teachers for students added after the ADA calculation period, in which case it would have had the expense of the teachers, but would not have received revenue yet for the additional students.
On several occasions in July and August 2001 — particularly August — Ghafur and Hamed requested Yoders assistance in obtaining additional funding for Gateway. In September 2001, Yoder became involved in securing further funding for Gateway. During that time, he spoke with both Ghafur and Hamed about Gateways student enrollment numbers. When Yoder received a solicitation from Gateway, formally requesting to borrow an additional amount, he asked that a budget be provided. On September 18, 2001, he received, by means of a facsimile that bore Hameds name on the cover sheet, Gateways projected fiscal year 2001-2002 budget. The cover sheet stated that the budget was based on 1,450 students enrolled in the schools population. Yoder then telephoned Hamed and indicated his desire to see a student list. Yoder requested the enrollment list because this funding, unlike the earlier one, was based on actual enrollment as opposed to projections. Accordingly, Yoder wanted to see names of students to verify they were actually enrolled, and he told this to Hamed.
The April 2001 funding was to cover the expected cash flow shortfall in the coming year, based on Gateways projections in April of what its student count would be in the fall. Thus, neither Delta Public Finance (Yoders company) nor Wedbush required actual enrollment numbers, aside from the actual enrollment as of April. In conjunction with the April 2001 funding, Yoder received the projected student numbers from Hamed.
In a memorandum from Ghafur dated June 29, 2001, Yoder received a current student count, as well as projections of student counts for the fall. According to Islah Abdul-Hafeez, Gateways compliance director and consultant, Ghafur asked her, in June, to make a growth projection, and Abdul-Hafeez prepared something regarding an increase of 300 students. Ghafur subsequently told her that The report was incorrect, and gave it to Hamed. According to Abdul-Hafeez, who conceded she was paraphrasing, Ghafur told Hamed to do whatever was needed to get the loan from Delta. Ghafur and Hamed were the only two who dealt with Delta Finance.
After Yoder spoke to Hamed, he received, by way of a facsimile bearing Hameds name and what purported to be his signature, an enrollment list showing a count of 1,352 students. According to Amatussalam, who could not say whether the signature actually belonged to Hamed, the list was not accurate. For instance, it included students from the Patricia Young, Oscar Romero, Ezra, and Faaidah Learning Centers, none of which were part of Gateway in September 2001. In addition, some of the pages had cut-and-paste lines or areas where it appeared something had been whited out. Part of the document came from Amatussalams working documents, which she kept on her computer. Thus, some of the student names on the student enrollment list sent to Yoder were the same as those on the student waiting list Amatussalam had created in June 2001, at Ghafurs request, and had sent to Ghafur. In September 2001, Gateway did not have 1,352 students, although actual enrollment was roughly 900. After September 11, the correct figure might have been 701, as two schools were kicked out of their sites.
In the enrollment list Yoder received in conjunction with the September 2001 funding, there were 1,227 student names, but a confirmed student count of 1,352. Yoders understanding of the difference was the count at the Ezra Learning Center. As the document stated that the student count was confirmed, Yoders understanding was that those students were enrolled, but the names were incomplete.
According to enrollment reports submitted by Gateway to FUSD, when Gateway opened in September 2000, it had a total of 167 regular students and 31 independent study students at its various school sites. In May 2001, at the end of the first school year, Gateway had a total of 597 regular students and 83 independent study students at its sites. These were the enrollment numbers; attendance, which was reported to FUSD for generating ADA, was derived from the number of students who actually attended the various schools and was usually lower, given that some enrolled students did not attend on a given day due to illness or other reasons. According to Gateways enrollment reports for the 2001-2002 school year, Gateway had a total of 701 students for the school years first attendance period, which ended September 14, 2001. For that report, Gateway did not submit a number for the Patricia Young and Oscar Romero sites, which were no longer affiliated with Gateway, nor did it report the Ezra Learning Center or Faaidah school as being part of Gateway.
When Yoder received the enrollment list, he noticed there was a shortfall between the number of names and the 1,450 figure contained in the projected budget. The main purpose of the document was to verify the actual enrollment count. Yoder stated this to Hamed and advised him that the enrollment count was crucial for this funding, because enrollment was what determined the money flowing to the school, and the notes could not be repaid without the enrollment that was being shown. When Yoder asked why the 1,352 number did not match the 1,450 figure, Hamed said that 1,450 was the actual student count, but they only had 1,352 names. In addition, Yoder had several conversations, probably on a daily basis, with both Hamed and Ghafur, concerning the need for the funding, the timing of the funding, and the population count. Yoder confirmed that 1,352 was a "hard" number as opposed to a projection.
At no time did Hamed say Gateway actually had 701 students enrolled in September 2001, although, in April 2001, Gateway was projecting an enrollment of 700 for the 2001-2002 fiscal year. At some point during the two-year period in which Yoder dealt with Gateway, however, there was a time when he asked for enrollment figures, and Hamed said he could not provide those, but then called in the registrar and said she could. Yoder was "[r]elatively confident" that this did not happen in September, however, because the enrollment count was very crucial at that time. Yoder was aware that, in September 2001, ADA money was approximately $4,500 per student. Thus, an enrollment of 700 would have generated about $3.5 million. Nevertheless, if Yoder had known Gateways enrollment in September 2001 was approximately 700, and with the April bond issue already outstanding, he would not have recommended the $630,000 funding to Wedbush. Similarly, if Gateway had received the April funding based on a projected enrollment of 700, then solicited a second loan with a showing that enrollment was still at 700, Yoder would not have recommended the second loan. The loan was needed in the first place to cover projected growth and the cost associated with it until the money came in from the state later in the year. If Gateway had not grown over its previous projection, there would have been no solid financial reason why it would have needed additional money.
In September 2001, Yoders relationship to Gateway was that of a financial advisor. As such, his duties entailed assisting Gateway in preparing documentation in a financing package and showing that package to broker dealers and investment banks as potential investors. The relationship did not entail acting on Gateways behalf, but instead acting as intermediary between Gateway and broker/underwriter firms. He contracted with Wedbush in conjunction with the September 2001 funding, and worked primarily with Richard Grossman, a public finance investment banker at Wedbush, in that regard. Yoder passed the student enrollment list on to Wedbush, so Wedbush could use it in its review and decision whether to loan the money.
After Yoder contacted Grossman about this transaction, Grossman surreptitiously visited two of Gateways sites. Although he was not there to verify student numbers, he went to see whether the school existed at the sites named to him by Yoder. At each, he saw either teachers and students in classrooms or students and parents entering and leaving the campus.
Prior to the September 2001 funding, Grossman spoke with Ghafur and Hamed in order to review the documentation. He contacted Hamed because Hamed was the person in charge of finance for Gateway. When Grossman asked Hamed what the student enrollment and ADA were at that time, since, at the time of the April 2001 funding, Gateway had had 700 students and was expanding, Hamed stated the student enrollment number was 1,350. Grossman asked for documentation, which was sent to Yoder. Yoder provided Grossman with the student enrollment list, dated September 18, 2001, and purportedly from Hamed, that showed an enrollment number of 1,352 students. It was explained to Grossman — he believed by Yoder and Hamed — that the list comprised students who were actually enrolled in Gateway, not a prospective population. In turn, Grossman presented this document to Wedbushs underwriters.
In making the decision to fund and finance, Grossman placed equal significance on the September 2001 actual enrollment figure and on the expected increasing student population. If 701 students would have generated approximately $3.5 million in ADA funds, that would have been enough to cover Gateways notes and operation of its school facilities. Based on his calculations, Grossman normally still would have recommended that Wedbush issue the bonds. Grossman believed, however, that reference to 701 students described a hypothetical situation, as, to his knowledge, there were never 701 students enrolled at Gateway in September 2001. Had the true enrollment been 701 students, Grossman would not have recommended the issue to Wedbush, because he was told there were 1,350 students.
The student enrollment list was also received by Robert "Cap" Harlan of Wedbush. The list was provided by Gateways financial advisor, Delta Financial. In this respect, Karl Yoder was the individual from Delta Financial with whom Wedbush dealt with respect to the September 2001 funding. Wedbush relied on the information provided to it. The list contained 1,227 individual student names and showed a total student count of 1,352. The student enrollment was "by far and away" the most important factor Wedbush used in underwriting, since the source of money that schools can receive — hence, the source of money to service the bond issue debt — is based very strongly on the number of students enrolled, due to ADA funding.
Wedbush created a term sheet for the funding, which gave the basic terms of the transaction, the borrower, the interest rate, the amount borrowed, the maturity date, and the basic materials of issue. The term sheet, which was disseminated to Wedbushs brokers and correspondent brokers, contained a brief description of Gateway that was created by Wedbush and stated that Gateways enrollment was approximately 1,350. Wedbush obtained this enrollment figure from Gateways student list, but did not independently try to verify it. If Wedbush had known that Gateway was actually reporting some 700 students, Harlan "seriously doubt[ed]" it would have underwritten the September 2001 offering, as that number of students would not have been enough to service both debt issues and allow the school to pay its operating costs. In short, Wedbush relied "very heavily" on the 1,352 student number in underwriting the loan. Wedbush only cared about confirmed students, not projected increase.
Wedbush did not receive anything directly from Gateway, but instead received all communications through Yoder.
According to Harlan, Wedbush took the list of 1,272 actual names as being a very accurate list of Gateway students. He did not see a major difference between that number and the 1,352 total. The most important list was the list with the actual students names. That list of 1,272 students was enough to support the underwriting.
In September 2001, Sharon Liska was senior vice-president of investments with Wedbush at its branch office in Anchorage, Alaska. As a broker, she advised clients on their portfolios, what to buy, and where to place their money. In this capacity, she regularly had contact with Cap Harlan, manager of Wedbushs bond department in Los Angeles, with respect to the sale of bonds.
In September 2001, Liska, who had 30 to 40 clients who were interested in short-term investments, was contacted by someone from Wedbushs Los Angeles office about Gateway bonds. She in turn contacted Harlan to question him about the bonds, which were for a term of 13 months and paid an unusually high rate of nine percent taxable interest. Harlan represented to Liska that the Gateway bonds were backed by the $40-million budget of FUSD and double A-rated. Liska did not receive information about Gateways budget; her concern was FUSDs budget, because Gateway was a charter school of FUSD and, to her knowledge, the Gateway bonds were backed by FUSDs budget. With respect to Gateways enrollment, Harlan told Liska that there were 1,500 currently-enrolled students, with expansion to 3,000 to 3,500 within the next few months. When she asked him for the exact current enrollment figure, he told her either 1,351 or 1,352. The student enrollment numbers were one of the initial factors on which she relied.
Bond issues run from junk bonds to triple A-rated. Anything above triple B is considered investment grade. Typically, double A-rated are the most secure bonds investors can buy without actually having to get an insurance policy on the bond. They are secured for the full faith and credit of the issuing agency, which, as far as Liska was concerned, was FUSD. Wedbush Morgan were the underwriters.
Harlan denied ever telling Liska that the September 2001 funding was double A-rated or backed by FUSDs $40 million budget. The Gateway bonds were non-rated, which, by definition, made them high-risk. The term sheet for the April issue specifically noted the bonds as non-rated and as suitable only for aggressive investors, primarily because Gateway was a start-up operation with no track record. The September 2001 term sheet did not say anything about the bonds being high-risk, although, in Harlans opinion, it should have.
Harlan denied ever telling Liska that Gateway had 1,500 students enrolled. Yoder did not recall telling anyone that Gateway had 1,500 students, but admitted he possibly may have done so as an approximation. Yoder had no direct dealings with either the brokers or the investors.
Liska did not receive anything in writing from Harlan. It was her normal practice to rely on verbal information in situations like this, where Wedbush was underwriting the bond and it was a "hot issue," i.e., a stock or bond that was expected to sell out within a short time as soon as it hit the market.
As a result of the information she received from Harlan, Liska contacted those among her clients who were looking for investment-grade, short-term bonds. Eight of these clients — including her father and uncle — were involved in the Gateway funding. These people invested a total of $270,000. Liska spoke to each of them individually and told them she had a double A-rated, short-term bond issue that was a bridge bond (a type of bond issued if someone — typically, a municipality — is expecting to come into permanent, long-term financing and needs short-term financing in the interim), and that it would mature in 13 months and pay nine percent. She did not recall telling them specifically about the student enrollment numbers; although she would have, had anyone inquired about them, most clients are not interested in knowing what a bond issue is for, but simply want to know what return they will get on their investment. None of Liskas investors requested enrollment figures from her. The investors would have relied on her telling them that there was an increasing demand, which statement would have been made based on the figures Harlan gave her.
Liska testified that she had seven clients who invested a total of $260,000. When she was asked to give each individual name and amount, however, there were eight clients who invested a total of $270,000.
Although Ghafurs name was brought up as the person from whom Wedbush got its information, Liska never spoke to anyone with Gateway, nor did anyone from Gateway make any representations directly to her with respect to the bond. She presented her investors with the facts that had been given to her, and they decided whether to invest. She did not undertake independent verification of what Harlan told her. He was head of the bond department; it was the bond departments job to do the research. Liska expected to be able to rely on her bond department for information, and she felt the bond department did a "sloppy" job in this instance and that Wedbushs bond department should never have brought this bond to market because Gateway was already in violation of its charter at the time Wedbush did so. Had she known these were not bridge bonds, were nonrated, and that there was not more backing to them, she would not have bought them. Ultimately, this bond was not satisfied and so the bondholders were never repaid.
In September 2001, Wedbush contacted broker Paul Dixon with an offer involving the Gateway bond, and Dixon worked through Wedbush, with whom he had a longstanding relationship through the securities firm for which he was an independent contractor, on the issue. Upon receiving the call from Wedbush, Dixon wanted to know where the revenues to pay the bond would come from and how they would be handled. In response, he received a term sheet from Wedbush. A term sheet lists the highlights of the bond issue and gives pertinent information, including the amount of the bond, the sources of the security, the maturity of the bond, and the interest rate. The broker can then determine whether he or she wants to sell the bond, based on that information, and will bring up those points to his or her clients in presenting the bond to them.
Dixon dealt almost entirely with Norm Ryan with respect to the Gateway bond. At the time, Ryan was head of Wedbushs municipal trading department and was trying to start their municipal bond underwriting department. Dixon did not deal with Cap Harlan with respect to these particular bonds. Although he had heard of Karl Yoder, he did not deal with him, either.
Dixon relied on information contained in the term sheet, specifically the student enrollment number for Gateway, which was given as approximately 1,350. Dixon understood charter schools to receive approximately $5,000 per student from the State of California, with the amount tied to ADA. In addition, when he asked Wedbush to clarify what the term sheet meant, in terms of security, by an intercept mechanism, he was told that the state would make the payment to a bank, which would hold the funds in what amounted to an escrow account, and then payments to the bondholders would be released from that account. It was stressed to Dixon that the people at the charter school would have no control over that. In addition, because a lien was placed on all property, funds, and future income (according to the term sheet), if the state never made a payment, Gateway would ultimately be responsible for payment on the bonds.
An intercept mechanism was indeed set up in this case, but it was scheduled to go into effect in February 2002, when repayment on the loans was supposed to start.
Based on the term sheet, Dixon contacted several of his clients. He told them that the investment was a school bond issued by a charter school; that the school had a certain number of students and that the state was required to pay a certain amount; and that, based upon the revenues coming in versus the expenditures they showed, it looked like a very solid bond issue. Two agreed it would be a good investment; Karyl Atherton paid $5,000, and Gene and Frances Senger paid $25,000. They relied on the information Dixon gave them, which he received from Wedbush — specifically, that there was an intercept mechanism in place, that the funds were coming from the State of California, and that the state was required to pay the average daily attendance because this was a certified charter school. In terms of the enrollment number, the investors relied on the fact the term sheet said there were approximately 1,350 students in the sense that, had the number been significantly less, Dixon probably would not have offered them the bond, since in his mind, it would have been a degradation of the security from the first bond issue to the second. The fact the enrollment numbers had improved significantly since the April 2001 funding, at which time Wedbush had reported that Gateway had nearly 700 students, gave Dixon a degree of confidence that this particular bond was very secure. Dixon based all of his thinking on the current number of students, as that was where the money was coming from. Taking the number of students Gateway had and the amount of funding it would get for those students, compared to its liabilities, this looked like a good bond. If Dixon had been told Gateway had approximately 700 students enrolled at the time of the second offering, it would have meant to him that enrollment was flat or slightly declining and yet the school was coming back for more money. Under such circumstances, he would have decided not to sell the bond.
Dixon, who had previously been involved with Wedbush in Gateways April 2001 funding, did not provide a copy of the term sheet to the investors, as it was not an official document that could be made available to them.
According to Gene Senger, Dixon said that the bonds were much safer than the municipal bonds Senger had been buying, and that the money was put up for the students. Senger recalled Dixon saying that Gateway had 700 students at the time, and later it went up to 1,200 students. Senger heard another figure after that, of 1,350. In any event, there were 700 students to start with, and Gateway received $4,500 per student. Senger relied on the student numbers as reported to him by Dixon, the fact there was an intercept mechanism, and Dixons representation that Gateway had had a years experience with the school district already with no trouble. With respect to whether the student enrollment number had grown from April 2001 to September 2001, Senger recalled Dixon saying Gateway was expecting more students; that the school had started with 400 students, had 700 at the time Senger purchased the bond, and expected enrollment to go up to 1,250. Senger, who was 82 years old at the time of trial with a memory he said "isnt the best," admitted he could be mistaken about the number of students Dixon reported to him, and that he heard the 1,350 number from Dixon. However, Senger denied relying on the 1,350 figure, which he believed he got after he had already purchased the bonds. When interviewed by a Department of Justice representative in 2003, he stated that Dixon said Gateway had 700 students enrolled in September 2001.
Dixon had no recollection of telling Senger that, in September 2001, Gateway had 700 students. Since Senger purchased the second bond issue, Dixon believed he would have told him what was in the offering circular, which was the 1,350 number. If Dixon had said anything about 700 students, it would have been in reference to the previous bond issue.
As the underwriter with respect to the September 2001 funding, Wedbush purchased the bond/note from the issuer (Gateway) and resold it to investors. All told, 17 investors purchased the September 2001 bond, through seven different brokers. Gateway was paid the $630,000, less Wedbushs commission and Yoders fee, within a few days after the underwriting closed. None of the bondholders received any of their principle on this funding. FUSD revoked Gateways charter on January 16, 2002, following Gateways repeated failure to completely address issues raised by a compliance review process FUSD implemented for all charter schools in spring 2001.
II
DEFENSE EVIDENCE
We have combined the evidence presented by all defendants.
In April 2001, Yoder received a document from either Hamed or Ghafur, stating that Gateway anticipated an increase in enrollment from 550 to 700 students in fiscal year 2001. On or about June 22, 2001, Yoder received a facsimile transmission from Hamed that, unlike the subsequent cover sheet for the list showing a student enrollment of 1,352, did not bear a signature and had a header that included Hameds name and a telephone number. On or about June 29, 2001, Yoder received a student list from Ghafur that showed a student count of 1,112, including the waiting list for the main campus at Fruit and Dakota. In light of the September 2001 enrollment list, Yoder believed Gateway had had about 550 students at the end of the fiscal year and, as of April, an enrollment of 700 was being projected for fall. That enrollment projection kept rising, however, so that over the summer, it grew to 1,000, and, by September, Gateway actually had slightly more than 1,300 students enrolled. Gateway never reported to Yoder a student enrollment of 701 in September 2001.
Yoder was unable to recall whether other facsimiles he received from Hamed also had a header. He denied creating or altering the facsimile cover sheet for the September 2001 enrollment list, creating any student numbers, or making up any documentation to support the September 2001 funding. He denied signing Hameds name to the cover sheet.
Yoder did not recall Hamed ever telling him that the student enrollment in September 2001 was exactly 1,352 students, but he did recall Hamed saying in several conversations that the enrollment count was in the range of 1,300 to 1,500. Yoder was certain that what was conveyed to him was a current, actual student count and not a projection or expectation. When the September list said "student count confirmed" without listing names, Yoder took it to mean that it was not a projection, but instead the numbers were actual students whose names were not available for that list.
In October, Hamed and Ghafur mentioned that September 11 had impacted enrollment. For the December 2001 funding, Yoder did not have an updated student enrollment list and was working off of the list from the September funding. At an in-person meeting at Gateway in December, Yoder talked to both Ghafur and Hamed about the September 2001 student enrollment list. In December 2001, Hamed told Yoder there were 1,352 students. Yoder did not recall an exact conversation with Ghafur, but it was clearly indicated by both Ghafur and Hamed that the student enrollment list essentially was unchanged. They mentioned that a Sunnyvale school had closed, but that enrollment definitely was well above 1,000. They did not tell Yoder they had around 700 students; if they had, he would not have been involved in funding in December 2001. Similarly, if they had said they had 701 students in September 2001, he would not have been involved in that funding, either.
In 2001, Lewis Wiley was director of accounting and payroll for FUSD. As such, his responsibilities included assisting the charter schools with their unaudited actuals. In terms of Gateway, Wiley was in contact mostly with Hamed at first, and then with Islah Abdul-Hafeez. On October 1, 2001, Wiley inquired of Abdul-Hafeez about some of the numbers in the unaudited actuals Gateway had submitted for the fiscal year ending June 30, 2001. Wiley wanted to know why the unaudited actuals were so different from the budget Gateway had submitted. Abdul-Hafeez explained that enrollment had jumped significantly compared to what had been expected, due to the opening of additional sites and new promotions that had attracted more students. She stated that Gateway had had a student enrollment of 300 in September 2000, a student enrollment of 750 in June 2001, and a student enrollment of 1,450 in September 2001. Wiley did not recall anyone from Gateway other than Abdul-Hafeez stating that Gateway had 1,450 students enrolled in September 2001. The 1,450 number raised concerns for Wiley because it was a large amount of growth. However, it was not necessarily unusual for charter schools to have budget projections that were incorrect or discrepancies between their budgets and unaudited actuals, or to have incorrect projected student enrollment figures.
Rommie Horn began working for Gateway just prior to summer 2001. Horn was athletic director and did some substitute teaching. Hamed introduced Horn to Gateway, but it was Ghafur who hired him. Hamed was his immediate supervisor. It was Horns belief that Ghafur was Hameds boss. Hamed would say that Ghafur was putting pressure on Hamed to make sure Horn was doing what he was supposed to be doing. Also, whenever Horn had a question regarding subjects such as pay, transferring to a different campus, or going into the classroom instead of being athletic director, Hamed would say he (Hamed) had to check with Ghafur to make sure it was all right.
Hamed presented evidence of his good character for truth, honesty, and integrity. He testified on his own behalf that he first met Ghafur in late 1999, when he was already working as a regional manager for One to One Learning Foundation, a charter school. He assisted in putting together a management team and a team of professionals, including Al Uribe, that facilitated the ultimate launching of Gateway, which, at the time, had been chartered, but which had only an administrative staff.
In 2000, Gateway obtained a $250,000 grant from the state. This was the first money the school received, and it was enough to begin organizing. Hamed, who had years of experience in nonprofit business services, recommended to Ghafur and the personnel staff to engage an accountant to ensure full oversight and control of the reporting of finances received from governmental agencies. An accountant was hired, but strictly for payroll. In approximately July 2000, Gateway obtained its first students.
Hamed formally became Gateways chief administrative officer sometime in 2000. His wife worked as his secretary in a volunteer capacity. Although Hamed had a strong recommendation relationship with Gateways board, he did not have the power to hire and fire.
Hameds duties involved administrative oversight of Gateways sites and departments, and assisting in the day-to-day operations of the organization. With respect to the collection of attendance and student enrollment reports, Hamed had an oversight function in relation to the registrar. Everything was organized to flow through the department of the registrar, and ultimately to Hamed in summary form or whatever specified form he needed to prepare reports for external organizations, primarily FUSD.
Student information was conveyed to outside sources for purposes of ADA funding. For a student to qualify for ADA funding, documents such as birth certificate, immunization record, and acceptable form of identification had to be on file. Based on where Xs were placed on the monthly forms Hamed received from the registrars office, Hamed could tell how many students qualified for ADA funding. Only students who met all requirements and qualified for ADA funding were reported to FUSD. A student could have been enrolled in Gateway and attending school, but would not have been claimed for ADA funding if the necessary documents were not on file.
The dispute between Hamed and Amatussalam arose because Amatussalam could not provide all of the necessary information on some of the students she was reporting as being enrolled. Hamed refused to report the students who were not verified. This type of problem occurred often. The school sites sent monthly attendance reports to Amatussalam, but were also required to send a duplicate copy to Hamed to calculate the ADA they earned. In some instances, the reports Amatussalam gave Hamed at the end of the month did not reconcile with the figures that had been reported to him through the copies sent by the sites. Hamed had to reduce a number of figures Amatussalam reported, causing philosophical problems between them. When Amatussalam complained to Ghafur, Ghafur instructed her to give Hamed access to the records, but Amatussalam never did. She also changed the locks and put a password on her computer. Hamed was Amatussalams supervisor only in theory; in reality, all department heads reported directly to the superintendent (i.e., Ghafur) and the board. Because Amatussalam would not give him access to the records, Hamed could only fulfill his reporting duties through the secondary mechanism of the summary reports she provided to him. She provided a monthly body count, which gave him the number and grade level of enrolled students who had accrued ADA funding for the month. The body count was solely numerical and had no names attached. Although Hamed felt Amatussalam was insubordinate on a number of occasions, he did not recall an incident in which she confronted him about sending a working copy of her enrollment list to FUSD. No one in his office, including his wife, had access to Amatussalams files, and Hamed did not recall any incident in which his wife said he had told her to send the information to FUSD.
On September 19, 2001, Hamed delivered a memorandum to Amatussalam in which he asked for a complete list of students enrolled for the 2001-2002 fiscal year. He made the request because he had heard Abdul-Hafeez tell someone Gateway had 1,450 students and that documents reporting that enrollment were being prepared. Amatussalam complained to Ghafur the day after Hamed made the request. In November, Amatussalam presented Hamed with an enrollment list showing approximately 980 students.
The student list with the attached facsimile cover that purportedly was signed by Hamed, gave "student count confirmed" in response to a process undertaken by the registrars office to have the director of the particular learning center verify whether the parents intended to enroll their children at Gateway. These were not students who were actually enrolled. Similarly, students shown as being on a waiting list were not considered enrolled. Hamed denied compiling the list or extracting it from Amatussalams computer, or seeing it prior to preparation for trial. He denied signing the facsimile cover sheet, that the document bore his actual signature, and transmitting the document to Yoder.
Hamed may have sent facsimiles to Yoder in September 2001, although he did not recall sending any directly. When Abdul-Hafeez became compliance officer, there was a protocol that mandated that all information sent outside the organization by anyone first had to be reviewed by her and passed on to the superintended before it went out. Thus, if Hamed sent a facsimile, it was with authorization from his supervisor. Facsimiles from Hamed bore a header, which the one to Yoder did not have.
Hamed denied ever telling Grossman that Gateway had 1,352 students enrolled in September 2001. Gateways enrollment at that time was 701 students. Hamed presented that information to Yoder in September 2001, in the form of a budget based on an actual enrollment of 550 in June 2001, with a projected enrollment of 700 at the beginning of the new academic year. In turn, Hamed received, on Yoders letterhead, a document showing a bridge loan program for Gateway based on the scenario of an enrollment of 700 for the 2001-2002 fiscal year. Gateways board asked Hamed also to generate budget scenarios based on enrollment of 1,000 and 1,450 students. These were never representations of actual enrollment. Hamed admitted giving Yoder a student enrollment number of 1,450, but only as a budget projection. Hamed denied that Yoder ever said he needed to confirm the student number or asked for a confirmed student number or list of names. Hamed denied giving Yoder an enrollment list of 1,352 students, which included learning centers he knew were no longer part of Gateway.
Hamed understood Delta Financial to have loaned money to Gateway. His perception of Delta was that it either represented a financial institution or an institution that had funds available for bridge loans to charter schools. When he signed the intercept letter, which he believed included the $630,000 loan, he was signing to protect Delta and anyone associated with the lending process. He had no idea of the source of the funds or that private investors would be purchasing bonds from Wedbush. Yoder never explained this; there was no discussion between him and Hamed beyond the fact that Yoder would facilitate acquisition of the funds necessary for the bridge loan.
In January 2001, Ghafur and other members of the executive board wrongly accused Hamed of trying to start his own charter school with someone. Until that time, Hamed had maintained the check register for Gateway. He was told he was not to be involved in Gateways financial affairs, and Ghafur told him he was on probation for 90 days. As he was never told he had been removed from probation, he believed he was still on probation in September 2001. As being placed on probation made him feel despondent and ostracized, he would never have been involved with Ghafur in a scheme to steal money from bondholders. In addition, although he was unsure whether he and Ghafur belonged to the same Muslim sect, they did not have the same Tabliq, meaning the direction in which they focused their attention as far as leadership was concerned. Thus, there were basic ideological differences between them, such that Hamed "[a]bsolutely" would not have been involved in a common plan or scheme with her.
Hamed, who was not a member of Gateways board, attended board meetings when invited by the board to give special reports, including budget. Those sometimes included student enrollment figures as related to budget. Minutes for the October 2, 2001, board meeting, at which Ghafur was present, indicated Gateway had 1,400 students, although the source of that figure was not stated. As chief administrative officer, Hamed had access to enrollment information through the registrars office. However, the minutes did not show Amatussalam or Abdul-Hafeez as attending that meeting. The only attendees who would have been in a position to give that information were Hamed and Ghafur. The number did not come from Hamed.
Until the beginning of this case, Hamed was chairperson of the nine-member board of a mosque in Fresno. He had held this elected position for two years. In his capacity, he had access to hundreds of thousands of dollars that belonged to the mosque. He neither took, nor was ever questioned about taking, money that did not belong to him. In addition, he previously was treasurer of a mosque in San Francisco for over seven years, and never took, nor was questioned about taking, any of that money. Hamed denied ever trying to defraud anyone in this case; in fact, he tried to protect the lenders by signing the intercept letter.
DISCUSSION
I
DENIAL OF BATSON-WHEELER MOTION
By way of joinder in the briefs filed by Ghafur in case No. F051164 (see Cal. Rules of Court, rule 8.200(a)(5)), Hamed contends the trial court erred by failing to find a prima facie case of discrimination and, hence, by denying the defense motion pursuant to Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). We disagree.
"The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciously or unconsciously biased against him or her. [Citation.]" (People v. Jackson (1992) 10 Cal.App.4th 13, 17-18.) Peremptory challenges may properly be used to remove jurors believed to entertain specific bias, i.e., bias regarding the particular case on trial or the parties or witnesses thereto. (Wheeler, supra, 22 Cal.3d at p. 274.) However, "`[a] prosecutors use of peremptory challenges to strike prospective jurors on the basis of group bias — that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds" — violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.] [Citation.]" (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
"There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.]" (People v. Bonilla (2007) 41 Cal.4th 313, 341.) "The United States Supreme Court has ... reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. `First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the racial exclusion" by offering permissible race-neutral justifications for the strikes. [Citations.] Third, "[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponent of the strike has proved purposeful racial discrimination." [Citation.] [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 541, quoting Johnson v. California (2005) 545 U.S. 162, 168 (Johnson). The California Supreme Court has "endorsed the same three-part structure of proof for state constitutional claims. [Citations.]" (People v. Bell, supra, 40 Cal.4th at p. 596; Wheeler, supra, 22 Cal.3d at pp. 280-282.)
With these principles in mind, we turn to the motion in this case.
F.C. was one of the first 18 prospective jurors called to the box. In response to the questions asked of all prospective jurors, she stated that she was a stay-at-home mother with two children, ages 18 and 13; lived in east Fresno; her household included her mother, a security guard; and she was not related or close to anyone in law enforcement, and was not acquainted with any witnesses, court employees, attorneys, or other jurors. She had not previously served on a jury. She replied negatively when asked by Hameds attorney whether anything about the length of the case (six to eight weeks) would cause her problems with taking care of her home or children, whether she had seen any media coverage on this case, and whether she knew anything about the Muslim faith. Under questioning by the prosecutor, this occurred:
"MR. ALVAREZ: Mrs. [C.], you stated that youre a stay-at-home mother with two children. What, if any, occupation did you have outside the home?
"[F.C.]: Excuse me?
"MR. ALVAREZ: Your job, did you have a job other than being a stay-at-home mother?
"[F.C.]: No.
"MR. ALVAREZ: You primarily
"[F.C.]: Braid hair."
The prosecutor used his third peremptory challenge to excuse F.C. All defense counsel immediately objected, and the trial court noted and reserved the objection. Outside the presence of the prospective jurors, Mr. Criego, counsel for Ghafur, objected that F.C. was the only apparent African-American in the jury pool, the prosecutor asked her relatively insignificant questions, and F.C. displayed no concerns or characteristics any different from other prospective jurors. Thus, he argued, the People had no challenge to F.C. other than one that was racially motivated. Mr. Moore, counsel for Solwazi, emphasized that F.C. was the only African-American seated in the jury box, she gave no answers showing a bias toward either side or an inability to follow the law, and all of the defendants were African-American. Mr. Jennings, counsel for Hamed, also noted that all three defendants were African-American, and argued it was unfair to strike the only prospective juror of the same race in the box. This ensued:
"THE COURT: Well, Im a little concerned about that one comment about this being the only apparent African American on the jury. I believe there is at least one other out in the audience....
"MR. JENNINGS: I saw one more too, but there is no guarantee that shes even going to get within the box that we can even voir dire her.
"THE COURT: Well, I think with the number of challenges, theres a pretty good guarantee. But the record should reflect that there is another potential African American in the audience.
"MR. CRIEGO: But I failed to notice that. Im not saying there isnt. I just didnt see one. But I do know ... even exclusion of one single prospective juror the same race or ethnic background as the defendant automatically constitutes a prima facie case when that juror is the only group member on the panel....
"MR. MOORE: Your Honor, the circumstantial evidence is such for the Court to inquire [sic] the prosecution to make an explanation that shows that the exercise of this peremptory challenge is race neutral.
"THE COURT: Okay. Well, maybe you can add a little more to that. Hes disqualified or at least used his peremptory on two other jurors, one of which was white and one of which was Hispanic.
"MR. MOORE: But if he used them at all, hed have to use them on people other than African Americans cause only one African American was on the panel.
"THE COURT: That doesnt make in itself a showing of prejudice; does it?
"MR. MOORE: Your Honor, what it requires at this point is ... to call upon the prosecution to ... make a reasonable showing, a reasonable explanation why they struck this apparently well-qualified African American juror.
"MR. JENNINGS: And likewise, Judge, you know, in the court of law were not concerned just about the actual facts. Were concerned about the appearance of justice. Just on the face of it, there appears to be no reason other than racial issue in terms of her being the only black on the panel.
"THE COURT: And so, lets go back to stage one here. And your request is what, Mr. Criego?
"MR. CRIEGO: My request is for the Court to ask Mr. Alvarez why he struck that particular individual.... My understanding is as soon as solitary group is struck, the prosecutor must justify that challenge.
"MR. ALVAREZ: Thats not true. Theres a misunderstanding, Your Honor, but Ill submit it. [¶] ... [¶]
"THE COURT: Theres no obligation till I find a reasonable inference; right?
"MR. CRIEGO: Thats correct.
"MR. ALVAREZ: Thats Johnson versus California, 125 Supreme Court, 2410.... [¶] ... [¶]
"THE COURT: Based on my review so far ... I think its clear that the last juror released appeared to be African American as defendants in this action are. However, at this point Im going to find the defendants have failed to make a prima facie case in that I think based on the initial peremptories used there has not been focus on that particular race. And I really dont see any other statement indicating a racial factor involved here at this point. However, that may still be an issue should there be another exclusion on that basis. So deny the request at this point."
The prosecutor ultimately used 15 peremptory challenges toward prospective trial jurors. An African-American woman was seated on the jury that tried the defendants.
Hamed now says the trial court erred by failing to find a prima facie showing of discrimination with respect to the prosecutors peremptory strike of F.C. "In order to make a prima facie showing, `a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class. [Citation.] The high court [has] explained that `a defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Citation.] `An "inference" is generally understood to be a "conclusion reached by considering other facts and deducing a logical consequence from them." [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 186; Johnson, supra, 545 U.S. at pp. 168-170 & fn. 4.)
African-Americans are a cognizable group for purposes of Batson and Wheeler. (People v. Alvarez (1996) 14 Cal.4th 155, 193.)
"Though proof of a prima facie case may be made from any information in the record available to the trial court, the [California Supreme Court has] mentioned `certain types of evidence that will be relevant for this purpose. Thus the party may show that his [or her] opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He [or she] may also demonstrate that the jurors in question share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his [or her] opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he [or she] is, and especially if in addition his [or her] alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the courts attention. [Citations.]" (People v. Bell, supra, 40 Cal.4th at p. 597.)
"[W]hen a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. [Citations.] As with other findings of fact, we examine the record for evidence to support the trial courts ruling." (People v. Howard (1992) 1 Cal.4th 1132, 1155.) This standard of review "is consistent with" the United States Supreme Courts reiteration in Johnson "of the applicable rules, which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the `totality of the relevant facts. [Citation.]" (People v. Gray, supra, 37 Cal.4th at p. 186; see Johnson, supra, 545 U.S. at p. 168.) "Because Wheeler motions call upon trial judges personal observations, we view their rulings with `considerable deference on appeal. [Citations.]" (People v. Howard, supra, 1 Cal.4th at p. 1155.)
The California Supreme Court has stated that a finding of no prima facie case will be affirmed "where the record suggests grounds upon which he prosecutor might reasonably have challenged the jurors in question." (People v. Farnam (2003) 28 Cal.4th 107, 135; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1101.) Hamed essentially argues this standard is outdated, since Johnson makes it clear that a party complaining of racial discrimination during voir dire makes a prima facie case of group bias if his or her allegations lead to the mere inference of discrimination. While we note that the California Supreme Court has employed the standard post-Johnson (see, e.g., People v. Bonilla, supra, 41 Cal.4th at p. 341; People v. Guerra, supra, 37 Cal.4th at p. 1101), we need not decide whether Hamed is correct: "`[W]e have reviewed the record and, like the United States Supreme Court in Johnson ... [we] are able to apply the high courts standard and resolve the legal question whether the record supports an inference that the prosecutor excused a juror on the basis of race. [Citation.]" (People v. Guerra, supra, 37 Cal.4th at p. 1101.)
We would reach the same result were we to agree with Hamed that the trial courts reference to a reasonable inference implies that court used an impermissibly stringent standard in making its determination. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1105.) In Johnson, the United States Supreme Court abrogated California authorities holding that, under Batson and Wheeler, "strong likelihood" and "reasonable inference" stated the same standard, to wit, that a defendant was required to show it was more likely than not that the other partys peremptory challenges were based on impermissible group bias. (See, e.g., People v. Johnson (2003) 30 Cal.4th 1302, 1313, 1318.) Nevertheless, we do not believe the United States Supreme Court meant to do away with any requirement of reasonableness, inasmuch as it defined "inference" in terms of the deduction, from facts, of a logical consequence. (Johnson, supra, 545 U.S. at p. 168, fn. 4.)
We find no such inference here. Although the establishment of a prima facie case does not depend on the number of prospective jurors challenged (see People v. Moss (1986) 188 Cal.App.3d 268, 277), as "[t]he exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude" (People v. Silva (2001) 25 Cal.4th 345, 386, italics added), the requisite showing is not made merely by establishing the excused prospective juror was a member of a cognizable group (People v. Alvarez, supra, 14 Cal.4th at p. 198; United States v. Chinchilla (9th Cir. 1989) 874 F.2d 695, 698; see People v. Hoyos (2007) 41 Cal.4th 872, 901).
We do not read the trial courts comments as suggesting it wrongly believed more than one excusal was required before a prima facie case could be established, but instead that the single excusal in this case did not establish a prima facie showing on the facts before it. Assuming the trial court erred in this regard, however, we are able, as we have said, to review the record independently to apply Johnsons standard and resolve the legal question whether the record supports an inference that the prosecutor excused F.C. on the basis of race. (See People v. Bell, supra, 40 Cal.4th at pp. 597-598; People v. Avila, supra, 38 Cal.4th at pp. 553-554.) As we have also said, we find no such inference here.
In the present case, the prosecutor used one of 15 peremptory challenges against an African-American. Such a ratio certainly cannot be considered disproportionate. (See People v. Bell, supra, 40 Cal.4th at p. 598.) Although he struck one of only two African-Americans in the jury pool, "the small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible." (Id. at pp. 597-598.) "To be sure, the ultimate issue to be addressed on a Wheeler-Batson motion `is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. [Citation.] But in drawing an inference of discrimination from the fact one party has excused `most or all members of a cognizable group [citation], a court finding a prima facie case is necessarily relying on an apparent pattern in the partys challenges. Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.]" (Id. at p. 598, fn. 3.) The fact F.C. was the only African-American prospective juror to have been considered at the time of her removal is not dispositive (People v. Guerra, supra, 37 Cal.4th at p. 1101; see People v. Williams (2006) 40 Cal.4th 287, 311); as we have noted, the trial jury included an African-American, which circumstance, while similarly not conclusive, weighs against the finding of a prima facie case (People v. Stanley (2006) 39 Cal.4th 913, 938, fn. 7; United States v. Chinchilla, supra, 874 F.2d at p. 698, fn. 4).
Moreover, the record discloses reasons other than racial or group bias for a prosecutor to challenge F.C. Her answers, whether curt and abrupt or not, certainly may properly be characterized as short and practically monosyllabic. This reasonably could have raised red flags in the prosecutors mind concerning her attitude toward court proceedings in general or this case in particular. More importantly, this was a complicated case. Any prosecutor reasonably could have believed, given the complexity of the evidence, that someone who had never been employed outside the home would not be a desirable juror.
Hamed objects to the Peoples references to F.C.s demeanor. Although F.C.s loquaciousness or lack thereof is reasonably arguable based on matters contained in the record on appeal, her demeanor is not. Pursuant to California Rules of Court, rule 8.204(a)(1)(C) and (e)(2)(C), we disregard those references.
Although we do not undertake comparative analysis at this, the first step in the Batson-Wheeler process (People v. Bonilla, supra, 41 Cal.4th at p. 350), we note that the prosecutor exercised his second peremptory challenge against a prospective juror who had always been a homemaker, and that it appears all trial jurors had at least some employment or business experience.
Hamed cites Johnson, in which the United States Supreme Court stated: "The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process. [Citation.] The inherent uncertainty present in inquires of discriminatory purpose counsels against engaging in needless and imperfect speculation when a direct answer can be obtained by asking a simple question. [Citation.]" (Johnson, supra, 545 U.S. at p. 172.) However, "[t]he quoted caution against speculation must be read in light of the high courts statement that a prima facie case is established when the `defendant satisfies the requirements of Batsons first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred. [Citation.] Once the trial court concludes that the defendant has produced evidence raising an inference of discrimination, the court should not speculate as to the prosecutors reasons — it should inquire of the prosecutor, as the high court directed. But there is still a first step to be taken by the defendant, namely producing evidence from which the trial court may infer `that discrimination has occurred. [Citation.] We have concluded that the evidence alluded to by defendant in the trial court did not support such an inference, nor was such an inference supported by the challenged jurors own statements or anything else in `"the totality of the relevant facts" [citation] that we have seen in our examination of the record ...." (People v. Cornwell (2005) 37 Cal.4th 50, 73-74.)
Hamed and the other defendants having failed to produce evidence sufficient to permit the drawing of an inference that discrimination occurred (Johnson, supra, 545 U.S. at p. 170), the Batson-Wheeler motion was properly denied.
II
SUFFICIENCY OF THE EVIDENCE
Hamed contends the evidence was insufficient to support his conviction on count 11, because it failed to establish the investors relied on the false representation that Gateway had an actual enrollment of 1,352 students in September 2001. We disagree.
The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is "reasonable, credible, and of solid value." (People v. Johnson, supra, at p. 578.) An appellate court must "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). "Where the circumstances support the trier of facts finding of guilt, an appellate court cannot reverse merely because it believes the evidence is reasonably reconciled with the defendants innocence. [Citations.]" (People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)
The jury here was instructed that count 11 alleged theft by false pretenses. "To establish the commission of the crime of grand theft sounding in false pretenses, the following factors must be proved: (1) The making of a false representation; (2) knowledge that the representation is false with intent to deprive the owner of his property; and (3) proof that the owner was actually defrauded and that he parted with his property in reliance on false representations. [Citations.] Intent to defraud is an essential element of grand theft by false pretenses, but such intention is inferable from the facts. [Citations.] Knowledge may also be inferred. [Citation.] [¶] Proof of a false factual representation need not be by words alone; it may be implied from conduct; it may be made either expressly or by implication; the form of the words in which the pretense is couched is immaterial; if the words or conduct are intended to create the impression that defendant is making a representation as to a present fact, the pretense is within the statute. [Citations.]" (People v. Brady (1969) 275 Cal.App.2d 984, 996; see also People v. Reed (1961) 190 Cal.App.2d 344, 353.)
A defendant is guilty of theft by false pretenses if he or she made a false representation or intentionally caused one to be made. (People v. Singh (1995) 37 Cal.App.4th 1343, 1368.) Thus, "`it is not necessary that the false representations be made to the person defrauded in order to convict one of obtaining money or property by false pretenses. A false representation to an agent or clerk has been held a false pretense to the principal." (People v. Pugh (1955) 137 Cal.App.2d 226, 234; accord, People v. Smith (1984) 155 Cal.App.3d 1103, 1147, disapproved on other grounds in Baluyut v. Superior Court (1996) 12 Cal.4th 826, 832-835; People v. Moore (1927) 82 Cal.App. 739, 747.) Moreover, the People need not prove that the defendant personally benefited from the fraudulent acquisition. (People v. Ashley (1954) 42 Cal.2d 246, 259.)
In the context of a theft conviction on a theory of false pretenses, "reliance means that the false representation `materially influenced the owners decision to part with his property; it need not be the sole factor motivating the transfer. [Citation.] A victim does not rely on a false representation if `there is no causal connection shown between the [representations] alleged to be false and the transfer of property. [Citations.]" (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842-1843; accord, People v. Ashley, supra, 42 Cal.2d at p. 259.)
"[T]he reliance or causation element of the crime may be found lacking in three typical situations: `(1) Where the complainant knew the representation was false, or did not believe it to be true. [Citation.] [¶] (2) Where, even if he believed it, he did not rely on it, but investigated for himself or sought and relied on other advice. [Citations.] [¶] (3) Where, although some false representations are proved, the complainant parted with his money or property for other reasons or in reliance on other representations not shown to be false. [Citation.]" (People v. Whight (1995) 36 Cal.App.4th 1143, 1152.) A victim need not investigate before relying; "`[t]he party so deceived is none the less defrauded of his money [although] he might have made an investigation and determined that the representations were false. [Citation.] But the rule is equally well established that, where the victim does investigate the representation and relies solely on his investigation rather than upon defendants representation, the crime of theft by false pretenses is not made out. [Citations.] [¶] ... [¶] On the other hand, the causal chain of reliance is not broken merely because the victim undertakes some investigation. So long as the victim does not rely solely upon his own investigation, sufficient reliance is shown if the victim relied in part upon the defendants representations." (Id. at pp. 1152-1153, fn. omitted.)
"`"[T]he express testimony of a victim of false pretense that he was induced to part with his money by the fraudulent statements of the accused is not essential. It is sufficient if the inference of his reliance could have been drawn from all of the evidence." [Citations.]" (Perry v. Superior Court (1962) 57 Cal.2d 276, 285-286; accord, People v. Whooten, supra, 44 Cal.App.4th at p. 1843; People v. Frankfort (1952) 114 Cal.App.2d 680, 699.) Thus, while the testimony of the victim is, ordinarily, the best evidence of the effect of the false representation, "[t]he jury may be fully satisfied on the testimony of others, and from all of the circumstances in the case, that the representations did induce him to turn over the property to the defendant. [Citation.]" (People v. Schmidt (1926) 79 Cal.App. 413, 418.)
The evidence adduced at trial is set out at length, ante, and we need not repeat it here. Although it may have been preferable for the prosecutor to present testimony from those named as victims in count 11, or at least from the various brokers, we nevertheless conclude the circumstantial evidence was sufficient to support a reasonable inference of reliance. "If a finding is based upon a reasonable inference it is not within the power of the appellate court to set it aside ...." (People v. Adams (1955) 137 Cal.App.2d 660, 668.)
The evidence virtually compels an inference that Wedbush relied on the false enrollment figures and passed the information on to various brokers, either orally or in writing; that the brokers knew of the enrollment representation and its significance, in terms of Gateways funding and ability to repay the loan; and that the brokers based their recommendations to investors thereon. Even assuming the investors themselves never were expressly told Gateway had an enrollment of 1,352 students, they were defrauded based on the false representation intentionally made to the person (broker) on whom, or company (Wedbush) on which, they were relying in buying the bonds. Under circumstances such as this, where it is reasonable and foreseeable for investors to rely on an agent with specialized knowledge — in this case, of bonds and investments — and where it is reasonable to infer the agents would not have recommended the investment had the true enrollment figure been known (or, in the case of Wedbush, that it would not have been involved in the funding), there is a sufficient causal relationship between the false representation and the transfer of the victims money to sustain the conviction. To hold otherwise would be to allow one who intended to and did obtain money or property through fraud, to be absolved of criminal liability due to the fortuitous circumstance that the fraudulent representation was made only indirectly to the victim because it was never expressly communicated to the victim by the agent to whom it was made. This would be an absurd result.
Yoder was Gateways financial advisor. Wedbush considered him to be Gateways representative in Wedbushs dealings with Gateway. Yoder represented a number of charter schools as financial advisor. He basically designed the charter school financing program, which he introduced to Wedbush and for which Wedbush was the underwriter in a number of transactions. Yoder did not view himself as also being an agent for Wedbush; he represented the schools and brought business to Wedbush. Wedbush had no financial or employment relationship with him.
Whether we view Yoder, Wedbush, and/or the brokers as the victims agents to whom the false representations were made, or as Hameds (and Ghafurs) agents in presenting those representations, however indirectly, to the victims, does not matter: The gravamen of the offense lies in Hameds (and Ghafurs) ultimate objective to secure additional funding for Gateway by intentionally inflating the schools enrollment. Whether Hamed (and Ghafur) intended or anticipated that the enrollment figure would be directly communicated to investors likewise is immaterial, since the record amply supports a conclusion they intended the fraudulent figure to be relied on in securing the funding. Had they not, there would have been little or no reason for them to lie about Gateways enrollment. (See Smith v. Superior Court (1970) 5 Cal.App.3d 260, 263-264.)
People v. Singh, supra, 37 Cal.App.4th 1343, is somewhat instructive. In that case, Singh was the driver in staged automobile accidents; his codefendant, Burke, provided subsequent chiropractic care for which he billed the other drivers insurance companies by sending the bills to the attorney representing Singh in his lawsuits against those insurance companies. The attorney then paid Burke from the settlements. (Id. at pp. 1352-1357.) On appeal, Burke claimed he could not be convicted of grand theft on a theory of false pretenses because there was no evidence he or his agents made false representations directly to the insurance companies or their agents. (Id. at p. 1368.) The Court of Appeal rejected this claim, stating, in part: "Here, the lawyers ... were the conduit for the fraudulent claims. Burke sent the billings to the attorneys, knowing they were representing his patients in their personal injury claims and knowing they would forward the billings to the insurers. We assume, arguendo, that Burke knew the billings were fraudulent, as Burke himself does for purposes of this argument. He must then have known he would ultimately be defrauding the insurers by sending the billings to the law firm. Indeed, his billing practices were tailored to facilitate insurance payment. He cannot now hide behind the firm to avoid guilt." (Id. at p. 1369.)
Here, the evidence supports a conclusion Hamed (and Ghafur) intended the false enrollment figure either to be passed on to the ultimate investors, or at least relied upon by Wedbush in undertaking the funding and the brokers in recommending the investment. Regardless of whether the investors relied directly on the false number, or indirectly by relying on their brokers who in turn were relying on the false number, the requisite causal relationship is established.
We recognize that not all of the brokers testified. Those who did, however, testified that they either relied on information concerning enrollment that they obtained directly from someone at Wedbush, or on the term sheet that Wedbush prepared and disseminated and which contained the enrollment number. Jurors reasonably could have concluded the remaining brokers would have been equally diligent in ensuring the existence of a repayment source for the bonds before presenting them to their investor clients. Since the evidence supports a conclusion Wedbush and its personnel obtained their information from Yoder, who in turn obtained the information from Hamed, the circumstantial evidence and reasonable inferences that can be drawn therefrom are sufficient to support the conviction with respect to all of the victim named in count 11.
This is true even with respect to Gene Senger. We recognize he testified that Dixon told him the true enrollment figure. If the evidence establishes the victim did not rely on the false pretense, a conviction cannot stand. (People v. Whight, supra, 36 Cal.App.4th at p. 1151; see People v. Frankfort, supra, 114 Cal.App.2d at p. 699.) Senger conceded, however, that his memory could be faulty. Moreover, Dixon testified that, if he had told Senger anything about 700 students, it would have been in reference to the previous bond issue. By convicting Hamed of count 11 as charged in the information, which alleged, inter alia, that Hamed took $630,000 from 16 investors and named Senger as one of them, jurors necessarily resolved any discrepancies or contradictions adversely to Hamed. We are not permitted to disturb their determination in this regard. (People v. Ashley, supra, 42 Cal.2d at p. 266; People v. Cuccia (2002) 97 Cal.App.4th 785, 796; People v. Schmidt (1956) 147 Cal.App.2d 222, 228; People v. Gordon (1945) 71 Cal.App.2d 606, 622-623.) The same is true with respect to any internal inconsistencies or contradictions in Liskas testimony, or between her testimony and that of Cap Harlan.
In light of the foregoing, we cannot say "`that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) Accordingly, reversal is not warranted. (Ibid.)
III
IMPOSITION OF PROBATION REVOCATION RESTITUTION FINE
As one of the conditions of Hameds probation, the trial court imposed a probation revocation restitution fine pursuant to section 1202.44. This statute went into effect on August 16, 2004, well after Hamed committed the offense for which he was convicted. As the People concede, the constitutional ban on ex post facto laws prohibits imposition of the fine in this case, and it must be stricken. (See Johnson v. United States (2000) 529 U.S. 694, 701; People v. Callejas (2000) 85 Cal.App.4th 667, 675-678.)
DISPOSITION
The judgment is modified by striking the probation revocation restitution fine assessed pursuant to section 1202.44. As so modified, the judgment is affirmed.
We concur:
Harris, J.
Dawson, J.