People v. Mazur

Full title: THE PEOPLE, Plaintiff and Respondent, v. MATTHEW SAM MAZUR, Defendant and…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Nov 19, 2019

No. D073268 (Cal. Ct. App. Nov. 19, 2019)

Opinion

D073268

11-19-2019

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW SAM MAZUR, Defendant and Appellant.

Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, Acting P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD261283) APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed in part, reversed in part, and remanded for resentencing. Nancy E. Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.

From about 2008 through 2015, Matthew Sam Mazur, president and chairperson of U.S. Medical Instruments (USMI), misrepresented to many individuals that USMI was a profitable, high net worth company that manufactured and successfully sold a patented, retractable hypodermic syringe called the SafeSnap syringe and would soon be acquired by a large pharmaceutical or medical instruments company. In fact, USMI did not manufacture or sell any finished products during that period and its 17-year patent for the SafeSnap syringe expired in 2012. Based on those and other misrepresentations, Mazur, along with Carlos Manjarrez, USMI's vice-president, persuaded many individuals to invest money in the company.

Following a jury trial, Mazur was convicted of 35 offenses, including 19 counts of securities fraud, 10 counts of grand theft, two counts of grand theft from an elder adult, one count of conspiracy to commit grand theft, two counts of filing a false tax return, and one count of failing to file a tax return.¹ The jury also found true certain related enhancement allegations. On appeal, Mazur contends: (1) his five-year aggravated white collar crime enhancement (Pen. Code, § 186.11, subd. (a)(2))² must be stricken because the count to which it was attached in the third amended information (i.e., count 46) was dismissed by the court and the enhancement was not adequately pled regarding any other counts; (2) the 20 aggregate takings enhancements imposed by the court under former section 12022.6 must be stricken because his underlying convictions were not final before that enhancement statute was repealed by its own terms on January 1, 2018, pursuant to its sunset clause; (3) there is insufficient evidence to support his count 5 conviction for grand theft and count 7 conviction for grand theft from an elder adult; and (4) his count 5 and 27 grand theft convictions must be dismissed because they are lesser included offenses of his count 7 and 33 convictions for grand theft from an elder adult. As we explain post, we agree with Mazur only on his last contention and therefore reverse only his convictions on counts 5 and 27, affirm his remaining convictions, and remand for resentencing.

1 Mazur and Manjarrez were jointly tried, but separately sentenced on their respective convictions. Because they filed separate appeals, we address only Mazur's appeal in this opinion.

2 All statutory references are to the Penal Code unless otherwise specified.

FACTUAL AND PROCEDURAL BACKGROUND³

3 For brevity, we focus our discussion on those facts that are relevant to the convictions and enhancements that Mazur challenges on appeal.

USMI was incorporated in 1991. In 1995, it obtained a 17-year patent on the SafeSnap retractable syringe, which Mazur claimed prevents accidental transmission of blood-borne pathogens. After 2001, USMI did not earn any net income. From 2006 through 2014, USMI did not manufacture or sell any finished products. From 2008 through 2011, USMI reported annual net losses on its tax returns ranging from about $1.8 million to almost $3.5 million.

Mazur and Manjarrez persuaded people to invest money in USMI based on false representations that it was a successful and profitable medical device company and that they would obtain a substantial return on their investments on its purported imminent sale to a reputable pharmaceutical or medical instrument company. To aid in their scheme, Mazur and Manjarrez obtained estimates of USMI's value from certain financial institutions, which valuations were based on false information provided by Mazur and Manjarrez.

Counts 5 through 7 (Victim Donald). In 2012, Helen Peters (Helen) and Mazur were acquaintances who reconnected at their San Diego high school reunion. Before returning to Chicago, Helen went to Mazur's "glamorous" Mount Soledad home, which he falsely stated he owned. Mazur told her that he owned USMI, which was worth billions of dollars and from which he had made millions of dollars. He claimed USMI had two manufacturing plants, its SafeSnap syringe was used worldwide, and top pharmaceutical companies were interested in buying USMI.

Two months later, Mazur saw Helen in Chicago while he purportedly was there meeting with pharmaceutical companies that were interested in buying USMI. Mazur described to Helen the SafeSnap syringe, which sounded fantastic to her based on its safety features and cost savings to hospitals and clinics. Because of his representations regarding USMI's success and his La Jolla home, Helen believed Mazur was a knowledgeable financial person.

The following month, Helen returned to San Diego to visit her father, Donald Peters (Donald), who was 95 years old and legally blind. Donald lived independently in Oceanside, but was assisted several days a week by his neighbor, Melanie. Mazur picked up Helen from the airport, drove her to Donald's Oceanside home, and met Donald. While at Donald's home, Mazur claimed to be a "tax guru" and offered to help Donald with his taxes and place all of Donald's tax information onto a computer disc. During Helen's visit that month, Mazur visited her and Donald a couple of times. Once, Mazur brought Manjarrez, introducing him as USMI's vice-president. Mazur and Manjarrez told Helen that if she invested a million dollars in USMI, she could get her money back at any time and would be paid 9 percent interest. During another visit, Mazur claimed to know a lot about trading stocks and offered to help Donald with his trades.

After Helen returned to Chicago, she and Mazur communicated by text messages and phone calls. Mazur told her he had been visiting Donald, given him small gifts, and told him he would take him golfing. Mazur told Helen that he added himself as a signatory to Donald's brokerage account so that he could make trades for Donald. Mazur also told her that he talked Donald into liquidating his assets so he could give Helen and her half-siblings early inheritances. Mazur told her that she would receive almost $1 million, which he wired into her account by the end of November 2012. Soon thereafter, Manjarrez called Helen and persuaded her to invest almost $1 million in USMI. Helen was to receive a promissory note to be repaid in one year with monthly interest payments.

In December 2012, Mazur told Helen that in order to save taxes he had talked Donald into changing his trust by forming a new trust and limited partnership between Donald and Helen, which would own his Oceanside home and securities. The equity in Donald's home was about $600,000 and his stocks and bonds were worth more than $2 million. Helen signed a quitclaim deed that Mazur told her was necessary to transfer Donald's home to the new trust/partnership.

In June 2013, Mazur invited Donald and Melanie to lunch at a La Jolla restaurant. Melanie drove Donald to the restaurant and saw Mazur and Manjarrez standing outside the restaurant. After they were all seated at a table, Donald stated he was cold and asked Melanie to return to the car and get his sweater. During the time Melanie was away from the table, Mazur and Manjarrez had Donald sign three financial documents. When Melanie approached, she saw Mazur whisk away the paperwork and saw Donald holding a pen. Suspicious, Melanie requested copies of the documents that Donald had signed. After lunch, she and Donald went to USMI's office to get copies of the documents that Donald had signed. While Mazur appeared to work on getting the copies, he "droned on and on" about USMI's vitamins and injectables. Eventually, she and Donald left the office without copies of the documents. Unbeknownst to Donald and Melanie, the documents that Donald signed at the lunch consisted of an agreement making Mazur a general partner in the new trust/partnership, a USMI common stock purchase agreement, and an authorization allowing Mazur access to Donald's Scottrade brokerage funds.

On arriving at Donald's home, Melanie and Donald discussed the fact that he had signed documents without reading them. Helen called Mazur and asked him what documents Donald had signed. Mazur replied that the documents related to Donald's taxes. When she asked for copies of the documents, Mazur stated he would drop off copies at Donald's home, but he did not subsequently do so.

A few days after the June 2013 lunch at which Donald signed the three documents, Mazur went to Donald's Scottrade brokerage office, presented Donald's signed stock trade authorization, and requested that $500,000 be transferred from Donald's brokerage account to USMI's bank account. When Scottrade's office manager called Donald about Mazur's requested transfer, Donald replied, "I don't I don't know what you're talking about." Mazur then took the phone from the manager and told Donald that the brokerage office needed his driver's license. Mazur told Donald that he would pick him up and drive him to the brokerage office. When Mazur returned with Donald, Donald presented his driver's license to the manager, who then executed Mazur's requested $500,000 wire transfer from Donald's brokerage account to USMI's bank account.

Manjarrez delivered copies of the three documents to Donald about a month after the June lunch. When Melanie read the documents to Donald, he became upset. Donald stated the documents were not what he had agreed to and asked her to contact adult protective services and the police. In late August 2013, a police report was filed and Donald informed police that he was legally blind.

Melanie sent copies of the documents to Helen, who was shocked when she learned Mazur was a partner in the new trust/partnership and had trading authority. Mazur did not return Helen's phone calls. In September 2013, Helen confronted Mazur at his office. Mazur was angry that Donald had reported him to adult protective services and threatened to ruin Helen and her family.

Third Amended Information. Following an investigation regarding Donald and other potential victims, the prosecution filed a third amended information charging Mazur and Manjarrez with multiple counts of securities fraud, grand theft, and other financial offenses. It charged Mazur with 51 counts committed against 17 victims. At trial, the jury found Mazur guilty on 35 counts and found true related enhancement allegations, as follows: (1) one count of conspiracy to commit grand theft (§§ 182, subd. (a)(1), 487) with an enhancement of victim losses in excess of $200,000 (§ 12022.6, subds. (a)(2), (b)) (count 1); (2) four counts of grand theft (§ 487, subd. (a)) (counts 8, 12, 14, & 34); (3) three counts of grand theft (§ 487, subd. (a)) with enhancements of victim losses in excess of $65,000 each (§ 12022.6, subd. (a)(1)) (counts 2, 10, & 27); (4) three counts of grand theft (§ 487, subd. (a)) with enhancements of victim losses in excess of $200,000 each (§ 12022.6, subd. (a)(2)) (counts 5, 19, & 21); (5) two counts of grand theft from an elder adult (§ 368, subd. (d)) with one enhancement of a victim loss in excess of $200,000 (§ 12022.6, subd. (a)(2)) and one enhancement of a victim loss in excess of $65,000 (§ 12022.6, subds. (a)(1), (b)) (counts 7 & 33); (6) eight counts of securities fraud (Corp. Code, §§ 25401, 25540, subd. (b)) (counts 9, 13, 15, 18, 35, 38, 43, & 45); (7) four counts of securities fraud (Corp. Code, §§ 25401, 25540, subd. (b)) with enhancements of victim losses in excess of $200,000 each (§ 12022.6, subd. (a)(2)) (counts 6, 20, 22, & 26); (8) seven counts of securities fraud (Corp. Code, §§ 25401, 25540, subd. (b)) with enhancements of victim losses in excess of $65,000 each (§ 12022.6, subd. (a)(1)) (counts 3, 11, 17, 24, 28, 29, &41); (9) two counts of filing a false tax return (Rev. & Tax. Code, § 19705, subd. (a)(1)) (counts 49 & 50); (10) one count of filing a false tax return with intent to evade a tax (Rev. & Tax. Code, § 19706) (count 51); and (11) one aggravated white collar crime enhancement with victim losses in excess of $500,000 (§ 186.11, subd. (a)(2)). The trial court subsequently found true on-bail enhancement allegations related to two of the securities fraud counts (§ 12022.1, subd. (b)) (counts 43 & 45).

The court sentenced Mazur to a total term of 35 years eight months and ordered him to pay about $3 million in victim restitution. Mazur timely filed a notice of appeal.

DISCUSSION

I

Aggravated White Collar Crime Enhancement

Mazur contends that his five-year aggravated white collar crime enhancement (§ 186.11, subd. (a)(2)) must be stricken because the count to which it was attached in the third amended information (i.e., count 46) was dismissed by the court and was not adequately pled regarding any other counts.

A

Section 186.11, subdivision (a)(1), sets forth the "aggravated white collar crime enhancement," providing: "Any person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than one hundred thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of which he or she has been convicted, by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3). . . . The aggravated while collar crime enhancement shall only be imposed once in a single criminal proceeding. . . ."

Section 186.11, subdivision (a)(1), further provides: "For purposes of this section, 'pattern of related felony conduct' means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, characteristics, and that are not isolated events. For purposes of this section, 'two or more related felonies' means felonies committed against two or more separate victims, or against the same victim on two or more separate occasions." If the taking or victim loss exceeds $500,000, the additional term of punishment for an aggravated white collar crime enhancement is two, three, or five years in prison. (§ 186.11, subd. (a)(2).)

The purpose of the aggravated white collar crime enhancement is to provide for greater punishment for those criminals who engage in a pattern of fraudulent activity that results in a larger amount of accumulated takings or victim losses. (People v. Martinez (2017) 10 Cal.App.5th 686, 725; People v. Williams (2004) 118 Cal.App.4th 735, 747.) Section 186.11, subdivision (b)(1), provides: "The additional prison term and penalties provided for in subdivisions (a), (c), and (d) shall not be imposed unless the facts set forth in subdivision (a) are charged in the accusatory pleading and admitted or found true by the trier of fact."

B

Following counts 1 through 46, the third amended information alleged:

"AGGRAVATED WHITE COLLAR ENHANCEMENT: And it is further alleged that [Mazur] committed two or more related felonies, a material element of which is fraud and embezzlement, which involved a pattern of related felony conduct which involved the taking and resulted in the loss by another person and entity of more than five hundred thousand dollars ($500,000), within the meaning of PENAL CODE SECTION 186.11[, subdivision] (a)(2)."

At trial, the court instructed the jury on the section 186.11, subdivision (a)(2), allegation with a modified version of CALCRIM No. 3221, as follows:

"So if you find one or both defendants guilty of two or more counts of fraud in the offer or sale of a security, i.e., securities fraud, as charged in Counts 3, 6, 9, 11, 13, 15, 17, 18, 20, 22, 24, 26, 28, 29 to 32, 35, 38, 41, 43, and 45, you must then decide whether the People have proved the additional allegation that the defendant engaged in a pattern of related felony conduct that involved the taking of, or resulted in the loss by another person of[,] more than $500,000.

"To prove this allegation, the People must prove that: One, the defendant committed two or more related felonies, specifically securities fraud; and, two, fraud or embezzlement was a material element of at least two related felonies committed by the defendant; and, three, the related felonies involved a pattern of related felony conduct; and, four, the pattern of related felony conduct involved the taking of[,] or resulted in the loss by another person of[,] more than $500,000.

"A pattern of related felony conduct means engaged in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events.

"Related felonies are felonies committed against two or more separate victims, or against the same victim on two or more separate occasions.

"Fraud is a material element of securities fraud.

"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved."

In a special verdict, the jury found true the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation.

C

Mazur primarily argues that his five-year aggravated white collar crime enhancement (§ 186.11, subd. (a)(2)) must be stricken because the count to which it was attached in the third amended information (i.e., count 46) was dismissed by the court. Count 46 had charged Mazur with an act of securities fraud, alleging:

"On or about and between April 14, 2011 and March 19, 2015, [Mazur] and [Manjarrez] did willfully and unlawfully engage, directly and indirectly, in [an] act, practice, and course of business which operates and would operate as a fraud and deceit upon any person, in connection with the offer, purchase, and sale of any security in violation of CORPORATIONS CODE SECTION 25541."

The section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation followed count 46 in the third amended information.

During trial, Mazur requested that the court dismiss count 46 pursuant to section 1181.1 or that it exercise its discretion to dismiss count 46 under section 1385. Before jury deliberations, the court dismissed count 46 pursuant to section 1385. In so doing, the court stated that its dismissal of count 46 "does not dismiss the aggravated white collar crime enhancement which is not attached to that count. It just follows it in the Information."

Assuming arguendo that Mazur did not forfeit this argument, as the People assert, by not raising it or objecting to the enhancement below, we conclude that the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation was not attached to count 46 as Mazur argues, but simply followed it sequentially in the third amended information. First, enhancements alleged in the third amended information, other than the section 186.11, subdivision (a)(2), enhancement allegation, were expressly attached to certain counts. For example, in connection with count 45 for securities fraud alleged against Mazur, the third amended information stated: "And it is further alleged that the above felony offense was committed while [Mazur] was released from custody on bail . . . within the meaning of . . . SECTION 12022.1[, subdivision] (b)." In contrast, the section 186.11, subdivision (a)(2), enhancement allegation had no language expressly, or implicitly, connecting it to only count 46. Unlike the count 45 enhancement allegation, the section 186.11, subdivision (a)(2), allegation did not begin with the connecting phrase, "And it is further alleged that the above felony offense was committed while . . . ."

Second, the language of the section 186.11, subdivision (a)(2), enhancement allegation cannot reasonably be construed as applying to only one count (e.g., count 46). In particular, that allegation included the phrase, "it is further alleged that [Mazur] committed two or more related felonies." (Italics added.) Therefore, it is implicit, if not explicit, within any section 186.11, subdivision (a)(2), allegation that there be at least two underlying felony offenses to which that allegation is attached or related. Because count 46 alleged only one felony offense (i.e., Corp. Code, § 25541), it could not, by itself, provide the "two or more related felonies" required for the section 186.11, subdivision (a)(2), enhancement allegation. Therefore, it cannot reasonably be inferred that that enhancement allegation was attached solely to count 46, despite the fact that it followed count 46 sequentially in the third amended information. Rather, a reasonable interpretation of the third amended information is that the section 186.11, subdivision (a)(2), enhancement allegation followed count 46 because it was alleged to relate to two or more of the felony offenses charged in the counts preceding it (i.e., counts 1 through 46).⁴ Accordingly, contrary to Mazur's assertion, the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement was not dismissed together with count 46 when the trial court dismissed count 46.⁵

4 To avoid any ambiguity in future accusatory pleadings, a better practice for the prosecution would be to expressly list those counts to which a section 186.11 enhancement allegation relates.

5 Contrary to Mazur's assertion, the fact that the "charge summary" at the beginning of the third amended information erroneously listed the aggravated white collar crime enhancement adjacent to count 46 does not persuade us that that enhancement, which followed count 46 sequentially, related only to count 46 and not the other alleged fraud or embezzlement felonies preceding that allegation (i.e., counts 1 through 45).

Two cases cited by Mazur in support of his argument are factually and procedurally inapposite to this case and do not persuade us to reach a contrary conclusion. In People v. Nilsson (2015) 242 Cal.App.4th 1 (Nilsson), cited by Mazur, an information alleged, inter alia, two counts of grand theft and one count of offering a bribe to a public employee. (Id. at pp. 6, 14.) A section 186.11 enhancement was alleged regarding the two grand theft counts, but not the bribery count. (Nillson, at pp. 8, 14-15.) Although the jury found the defendant guilty on the two grand theft counts and found the related section 186.11 enhancement true, the jury further found that the two grand thefts were not separate and distinct offenses. (Nillson, at pp. 8, 15.) Therefore, the trial court struck one of the grant theft counts pursuant to People v. Bailey (1961) 55 Cal.2d 514. (Nilsson, at pp. 13, 15.) However, the court did not strike the related section 186.11 enhancement, finding the remaining grand theft conviction and bribery conviction constituted the related felonies for that enhancement. (Nillson, at p. 15.) On appeal, Nilsson struck the section 186.11 enhancement, concluding that the trial court erred because that enhancement was not alleged in connection with the bribery count, and the jury did not find that the bribery offense was one of the two related felonies required for that enhancement. (Nillson, at pp. 16-17.) Because in this case the jury found Mazur committed two or more related felonies (i.e., securities fraud counts) for which the aggravated white collar crime enhancement was alleged in the third amended information, Nilsson is both factually and procedurally inapposite to this case.

In People v. Arias (2010) 182 Cal.App.4th 1009, cited by Mazur, the appellate court struck section 664, subdivision (a), enhancements related to two attempted murder convictions because the prosecution failed to properly allege those enhancements (i.e., it did not allege the offenses were committed willfully, deliberately, and with premeditation). (Arias, at pp. 1016-1017, 1021.) Because in this case the third amended information properly alleged the elements for a section 186.11, subdivision (a)(2), enhancement and the jury found that allegation true, Arias is both factually and procedurally inapposite to this case.

D

Mazur alternatively argues that the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement must be stricken because it was not properly pleaded and proven. We disagree.

"The primary function of [an accusatory] pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights." (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) Enhancements must be alleged in an accusatory pleading and either admitted by the defendant or found true by the trier of fact. (§ 1170.1, subd. (e).) In particular, section 186.11, subdivision (b)(1), provides that an aggravated white collar crime enhancement "shall not be imposed unless the facts set forth in subdivision (a) are charged in the accusatory pleading and admitted or found to be true by the trier of fact." In addition, a defendant has "a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his [or her] crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 747.)

Section 186.11, subdivision (a), as quoted above, sets forth the elements for an aggravated white collar crime enhancement. Therefore, to impose that enhancement, an accusatory pleading must allege, inter alia, that the defendant committed two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct and result in takings or victim losses exceeding certain monetary amounts (i.e., exceeding either $100,000 or $500,000). (§ 186.11, subds. (a)(1), (2).) In this case, the third amended information properly pleaded the elements for an aggravated white collar crime enhancement, alleging that Mazur: "committed two or more related felonies, a material element of which is fraud and embezzlement, which involved a pattern of related felony conduct which involved the taking and resulted in the loss by another person and entity of more than [$500,000], within the meaning of . . . SECTION 186.11[, subdivision](a)(2)." Contrary to Mazur's assertion, the fact that the section 186.11 allegation did not expressly state which counts of the information that allegation related to, did not deprive him of fair notice. Rather, as discussed ante, the sequential placement of that allegation after count 46 supports a reasonable inference that it was alleged as to all counts preceding the allegation that involved fraud or embezzlement (i.e., 16 counts of grand theft, six counts of theft from an elder adult, 23 counts of securities fraud, and one count of conspiracy to commit grand theft as alleged in counts 1 through 46). Therefore, the third amended information placed Mazur on notice that the section 186.11 enhancement was alleged as to those 46 counts (i.e., counts 1 through 46). To give Mazur fair notice of that enhancement allegation, it was not necessary that the information specify each and every count to which it related.⁶ (Cf. People v. Riva (2003) 112 Cal.App.4th 981, 1001 [§ 12022.53, subd. (j), "only requires the facts necessary to sustain [a § 12022.53] enhancement be alleged in the information; it does not say where in the information those facts must be alleged or that they must be alleged in connection with a particular count in order to apply to that count."].) Mazur does not cite any case holding otherwise.⁷ Accordingly, the third amended information provided Mazur with fair notice of what was alleged against him (i.e., § 186.11, subd. (a)(2), aggravated white collar crime enhancement as to counts 1 through 46) and that he needed to defend against that allegation.

6 Of course, as noted ante, it would be a better practice in the future for the prosecution to expressly list those counts to which a section 186.11 enhancement allegation relates.

7 As discussed ante, Nilsson, supra, 242 Cal.App.4th at p. 1, cited by Mazur, is factually and procedurally inapposite to this case and does not persuade us to reach a contrary conclusion. In Nilsson, because the accusatory pleading specifically alleged the section 186.11 enhancement applied only to the two grand theft counts and not to the bribery count, the accusatory pleading did not put the defendant on notice that the allegation applied to the bribery count. (Nilsson, at p. 17.)

Mazur also argues that the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement must be stricken because it was not properly proven. During trial, Mazur's counsel argued that alleged enhancement could only apply to the security fraud counts. The prosecutor agreed and requested that the court modify CALCRIM No. 3221 to reflect that limitation. The court agreed and subsequently instructed the jury that the aggravated white collar crime enhancement allegation related only to the securities fraud counts, as charged in counts 3, 6, 9, 11, 13, 15, 17, 18, 20, 22, 24, 26, 28, 29 to 32, 35, 38, 41, 43, and 45. In its special verdict, the jury found true the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation.⁸

8 Specifically, the jury found: "AGGRAVATED WHITE COLLAR CRIME ENHANCEMENT: And we further find the allegation that [Mazur] committed two or more related felonies, a material element of which is fraud, which involved a pattern of related felony conduct which involved the taking and resulted in the loss by another person and entity of more than five hundred thousand dollars ($500,000), within the meaning of Penal Code section 186.11[, subdivision ](a)(2), to be true."

Contrary to Mazur's assertion, the jury's special verdict form was not inadequate because it did not expressly state the time frame for his pattern of related felony conduct or the related felonies to which it applied.⁹ First, section 186.11, subdivision (a), does not require any particular time frame to be proven for its enhancement allegation to be found true. Second, based on the third amended information and the court's modified CALCRIM No. 3221 instruction, it is nevertheless clear that the jury found Mazur's pattern of related felony conduct occurred during the time period that he committed the 19 counts of securities fraud of which he was found guilty (i.e., counts 3, 6, 9, 11, 13, 15, 17, 18, 20, 22, 24, 26, 28, 29, 35, 38, 41, 43, and 45) and that two or more of those felonies were related for purposes of the enhancement allegation. Accordingly, contrary to Mazur's assertion, the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement was properly proven and found true by the jury. (§ 186.11, subd. (b)(1).)

9 We likewise conclude the court's instruction with a modified version of CALCRIM No. 3221 was not incorrect because it did not expressly state the time frame for Mazur's pattern of related felony conduct or the related felonies to which the enhancement allegation applied.

E

Because we conclude above the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement was properly pleaded and proven, we reject Mazur's assertion that the five-year enhancement imposed by the court was unauthorized and must be stricken. As the People assert, the section 186.11, subdivision (a)(2), enhancement allegation was properly pleaded, the court properly instructed on it, and the jury properly found its elements were proven beyond a reasonable doubt. In imposing the five-year upper term five-year enhancement, the court stated that Mazur took "great advantage" of his victims and that his actions caused them both adverse emotional impacts and devastating financial losses. Based on the record in this case, we conclude the five-year enhancement imposed by the court for the section 186.11, subdivision (a)(2), true finding was not an unauthorized sentence.¹⁰

10 Because we assume Mazur did not forfeit any challenges to the pleading, instructions, and proof of, and sentence imposed on, the section 186.11, subdivision (a)(2), enhancement, we need not, and do not, address his alternative contention that if his counsel forfeited those challenges, he was denied effective assistance of counsel.

II

Section 12022.6 Takings Enhancements

Mazur contends that the 20 aggregate takings enhancements imposed by the court under former section 12022.6 must be stricken because his underlying convictions were not final before that enhancement statute was repealed by its own terms on January 1, 2018, pursuant to its sunset clause and therefore cannot be applied retroactively. We disagree.

A

At the time of Mazur's offenses, former section 12022.6 provided:

"(a) When any person takes, damages, or destroys any property in the commission or attempted commission of a felony, with the intent to cause that taking, damage, or destruction, the court shall impose an additional term as follows:

"(1) If the loss exceeds sixty-five thousand dollars ($65,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted[,] shall impose an additional term of one year.

"(2) If the loss exceeds two hundred thousand dollars ($200,000), the court, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which the defendant has been convicted[,] shall impose an additional term of two years. [¶] . . . [¶]

"(b) In any accusatory pleading involving multiple charges of taking, damage, or destruction, the additional terms provided in this section may be imposed if the aggregate losses to the victims from all felonies exceed the amounts specified in this section and arise from a common scheme or plan. . . .

"(c) The additional terms provided in this section shall not be imposed unless the facts of the taking, damage, or destruction in excess of the amounts provided in this section are charged in the accusatory pleading and admitted or found to be true by the trier of fact. [¶] . . . [¶]

"(f) It is the intent of the Legislature that the provisions of this section be reviewed within 10 years to consider the effects of inflation on the additional terms imposed. For that reason this section shall remain in effect only until January 1, 2018, and as of that date is repealed unless a later enacted statute, which is enacted before January 1, 2018, deletes or extends that date." (Italics added.)

As the parties concede, no later enactment of section 12022.6 occurred before January 2, 2018, nor has since occurred.

In November 2017, the jury found true the former section 12022.6 takings enhancements alleged relating to its guilty findings on 20 counts alleged against Mazur (i.e., 1, 2, 3, 5, 6, 7, 10, 11, 17, 19, 20, 21, 22, 24, 26, 27, 28, 29, 33, and 34). In December 2017, the court sentenced Mazur to a total of 35 years eight months, including enhancements under former section 12022.6.

B

Mazur argues that because he is appealing his convictions and they are therefore not yet final, the aggregate takings enhancements imposed by the trial court under former section 12022.6 must be stricken because that statute was repealed as of January 1, 2018, pursuant to its sunset clause. Citing In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Nasalga (1996) 12 Cal.4th 784 (Nasalga), Mazur argues that because his convictions were not final at the time former section 12022.6 was repealed, he is entitled to the benefit of that repeal. The People argue that those cases are inapposite and do not control our disposition of this issue and that we should instead follow the reasoning of In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.).

Estrada. In Estrada, the California Supreme Court held that a statute that reduces the punishment for an offense will generally apply retroactively to any case in which the judgment is not yet final before the effective date of the statute. (Estrada, supra, 63 Cal.2d at pp. 742, 744-745.) Estrada stated: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final." (Id. at p. 745.)

Although section 3 generally provides that no Penal Code statute " 'is retroactive, unless expressly so declared,' " Estrada concluded that general rule of construction did not apply where it can be discerned from the language of the statute and other factors that the Legislature intended the amended statute to apply to all judgments not yet final. (Estrada, supra, 63 Cal.2d at pp. 746, fn. 1, 747.) Estrada established an exception to section 3's general rule of prospective application, stating: "[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Estrada, at p. 748; see People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1195 (Hajek and Vo).) "Estrada represents 'an important, contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, we will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date.' " (Hajek and Vo, at pp. 1195-1196.) For purposes of the Estrada rule, a judgment is not final so long as courts may provide a remedy on direct review. (In re Pine (1977) 66 Cal.App.3d 593, 594.)

Alternatively stated, Estrada did not weaken the general rule that criminal statutes operative prospectively, but instead " 'articulat[ed] the reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments.' " (Hajek and Vo, supra, 58 Cal.4th at p. 1196.) The Supreme Court recently described its Estrada rule, stating: "The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not." (People v. Conley (2016) 63 Cal.4th 646, 657.)

Since Estrada, it has been held that the outright repeal of a criminal statute without a savings clause generally bars prosecution for violations before the repeal. (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1286.) However, Bourquez held that an express savings clause is not "the only means to save rights in pending actions." (Id. at p. 1284.)

Pedro T. In Pedro T., the court addressed the question of whether a minor who committed an offense during a three-year period of increased punishment pursuant to a statutory amendment but whose conviction was not yet final when the amendment's sunset clause became effective, was entitled to the statute's reinstated lesser punishment. (Pedro T., supra, 8 Cal.4th at p. 1043.) Specifically, in 1989, Vehicle Code section 10851 was amended, effective January 1, 1990, to increase the maximum punishment for vehicle theft from three years to four years. (Pedro T., at p. 1043.) That amendment further provided that the lesser, pre-1990 punishment would be reinstated as of January 1, 1993, unless the Legislature otherwise directed. (Ibid.) Because the Legislature did not so act thereafter, the lesser punishment was reinstated as of January 1, 1993. (Ibid.)

The minor committed a vehicle theft in 1991 for which the juvenile court imposed the increased punishment. (Pedro T., supra, 8 Cal.4th at p. 1044.) After the court of appeal affirmed, the California Supreme Court granted review to determine whether the minor was entitled to the lesser punishment that applied after the amendment's sunset clause became operative. (Ibid.) Pedro T. concluded that the Estrada general rule was inapplicable to its case, stating:

"The basis of our decision in Estrada was our quest for legislative intent. Ordinarily when an amendment lessens the punishment for a crime, one may reasonably infer the Legislature has determined imposition of a lesser punishment on offenders thereafter will sufficiently serve the public interest. In the case of a 'sunset' provision attached to a temporary enhancement of penalty, the same inference cannot so readily be drawn.

"Here, in temporarily increasing the penalties for vehicle-taking, the Legislature determined the public safety required a three-year test of stricter punishments [because of the escalating problem of vehicle theft]. . . . Far from determining that a lesser punishment for vehicle theft would serve the public interest, the Legislature expressly declared that increased penalties were necessary. Estrada is not implicated on these facts." (Pedro T., supra, 8 Cal.4th at pp. 1045-1046.)

Pedro T. further stated: "[A] rule that retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings. When the Legislature signals, years in advance, its intention to reduce the punishment for an offense, defendant and counsel have a strong incentive to delay the finality of a judgment in the hope of eventually receiving the lessened, postsunset term. . . . The Legislature could not have intended to encourage such machinations." (Pedro T., supra, 8 Cal.4th at pp. 1046-1047, fn. omitted.) Regarding the Legislature's failure to extend the increased punishment before the sunset clause became operative, Pedro T. stated: "[L]egislative inactivity after the passage of the sunset provision casts no light on the Legislature's intent when it enacted the statute. It is axiomatic that in assessing the import of a statute, we must concern ourselves with the Legislature's purpose at the time of the enactment." (Id. at pp. 1047-1048.)

Pedro T. described the legislative intent underlying a sunset clause and found a savings clause unnecessary, stating:

"We believe the very nature of a sunset clause, as an experiment in enhanced penalties, establishes—in the absence of evidence of a contrary legislative purpose—a legislative intent the enhanced punishment apply to offenses committed throughout its effective period. Because in this case we find no indication of a contrary purpose underlying the Legislature's use of a sunset provision in the 1989 version of Vehicle Code section 10851, we can infer the Legislature understood a difference existed between a limited-duration penalty increase and a permanent penalty amelioration, and so found a saving clause unnecessary. In other words, just as we find this situation distinguishable from Estrada, so could the Legislature." (Pedro T., supra, 8 Cal.4th at p. 1049.)

Accordingly, Pedro T. concluded the minor was subject to the statute's increased punishment even though his judgment was not yet final when the sunset clause became operative and reinstated lesser punishment. (Id. at pp. 1043, 1052.)

Nasalga. In Nasalga, the court addressed the question of whether an amendment to section 12022.6, effective June 30, 1992, that increased the loss amounts required for one-year and two-year enhancements should apply retroactively to a grand theft offense committed before the amendment's effective date but for which the defendant's conviction was not yet final.¹¹ (Nasalga, supra, 12 Cal.4th at pp. 787-788.) Citing In re Kirk (1965) 63 Cal.2d 761 and other cases, Nasalga stated: "[C]ourts have held that amendments, such as the one at issue here, that mitigate punishment by increasing the dollar amount for certain crimes or enhancements, should be applied retroactively, in the absence of a savings clause or other indicia of a contrary legislative intent." (Nasalga, at p. 793.) Because the 1992 amendment did not contain an express savings clause, Nasalga looked for other indications of legislative intent. (Id. at p. 794.) The court concluded that the Legislature indicated that it intended the 1992 amendment to account for the effects of inflation since the statute originally became operative in 1977. (Ibid.) It confirmed that legislative intent by providing that the statute's provisions be reviewed within five years to consider the effects of inflation and by including a sunset clause repealing the statute as of January 1, 1998, unless a new statute were enacted. (Ibid.) The court therefore concluded "the inferred legislative intent in raising the amount necessary for a two-year enhancement from $100,000 to $150,000 is an intent to mitigate punishment for offenders, such as defendant, to reflect the dollar's decline in value." (Id. at p. 795.) Nasalga stated:

11 Specifically, that 1992 amendment to section 12022.6 increased the threshold loss required for the two-year enhancement from $100,000 to $150,000. (Nasalga, supra, 12 Cal.4th at pp. 788-789.) Between April 1990 and July 1991, the defendant took checks worth $124,000. (Id. at p. 788.)

"By requiring review in five years, the Legislature clearly intends to prevent imposition of enhancements for theft of amounts unadjusted to reflect the effects of inflation. If this requirement tells us anything

regarding retroactive or prospective application of the amendments at issue here, it suggests a legislative intent, consistent with the intent underlying the five-year sunset provision, that the amendments apply retroactively so that the severity of the enhancements is proportionate to the value of the amounts stolen." (Nasalga, supra, 8 Cal.4th at p. 797, fn. omitted.)

Nasalga therefore applied the Estrada rule and concluded the 1992 amendment applied retroactively to the defendant. (Id. at pp. 797-798.)

C

In discerning the legislative intent underlying former section 12022.6 and its sunset clause, we must consider the Legislature's purpose at the time it enacted that statute. (Pedro T., supra, 8 Cal.4th at p. 1048.) In 2007, the Legislature amended section 12022.6 to increase the threshold taking or loss amounts for application of its enhancements. (Stats. 2007, ch. 420, § 1.) In amending that statute, the Legislature stated:

"It is the intent of the Legislature that the amendments to Section 12022.6 of the Penal Code by this act apply prospectively only and shall not be interpreted to benefit any defendant who committed any crime or received any sentence before the effective date of this act." (Stats. 2007, ch. 420, § 2, italics added.)

We recognized the prospective application of the 2007 amendments in People v. Green (2011) 197 Cal.App.4th 1485, stating: "Effective January 1, 2008, the Legislature raised the statutory minimum from $50,000 to $65,000 for imposition of the one-year enhancement in subdivision (a) of section 12022.6. [Citation.] The amendment applies prospectively only." (Id. at p. 1489, fn. 3.)

Importantly, in enacting the 2007 amendments to former section 12022.6, the Legislature considered the Assembly Floor Analysis, which stated in part:

" 'Penal Code Section 12022.6, enacted approximately 30 years ago on July 1, 1977, is one of California's original determinate sentencing enhancements. The excessive takings enhancements are extremely important in the prosecution of "white-collar" crime in California. Without the enhancements, the penalties for the theft or destruction of property worth $2.5 million are the same as for the theft of property worth $400. . . .' " (Assem. Floor Analysis, Concurrence in Senate Amendments of Assem. Bill No. 1705 (2007-2008) Reg. Sess.) as amended July 9, 2007.)

Therefore, the legislative history of former section 12022.6 shows the Legislature intended to impose longer prison terms on a defendant who caused property loss in excess of specified threshold amounts.

Furthermore, former section 12022.6's sunset clause, set forth in subdivision (f), provided, as quoted above, that: "It is the intent of the Legislature that the provisions of this section be reviewed within 10 years to consider the effects of inflation on the additional terms imposed. For that reason this section shall remain in effect only until January 1, 2018, and as of that date is repealed unless a later enacted statute, which is enacted before January 1, 2018, deletes or extends that date." (Italics added.) Former section 12022.6's sunset clause became operative without any extension of that January 1, 2018, date or reenactment of that statute to account for the effects of inflation. The repeal of that statute by its own terms was included for the express purpose of allowing the Legislature to review, and potentially adjust, the enhancement thresholds to account for the effects of inflation since its 2007 enactment. There is no evidence of a contrary legislative purpose to ameliorate, or lessen, punishment for defendants who stole property in excess of the monetary threshold amounts during that statute's effective period. We cannot infer from the statute's sunset clause that the Legislature intended a lesser punishment would serve the public interest. In fact, a contrary rule would have the practical effect of arbitrarily removing commensurate punishment for defendants whose cases happened to be pending at the time of the planned repeal before any reenactment of section 12022.6. Moreover, a contrary rule would provide defendants with a strong incentive to delay the finality of a judgment in the hope of eventually receiving the lessened, postsunset term (i.e., no § 12022.6 enhancements), resulting in potential manipulation of criminal proceedings. (Cf. Pedro T., supra, 8 Cal.4th at p. 1047.)

Accordingly, we conclude the Legislature intended for that statute's repeal by its own terms on January 1, 2018, to apply prospectively only. It cannot reasonably be inferred the Legislature intended the repeal of former section 12022.6 by its own terms to impose lesser punishment on those defendants who committed their offenses prior to January 1, 2018, but whose convictions were not yet final. Neither Estrada nor Nasalga are apposite to this case or persuade us to reach a contrary conclusion. In particular, Nasalga was decided in 1997, which was before the 2007 amendments to former section 12022.6 that included the Legislature's expressed intent that those amendments apply prospectively only. Furthermore, Nasalga involved an ongoing increase in the statute's threshold amounts to account for the effects of inflation and therefore did not address the effect of an operative sunset clause. Importantly, Pedro T. stated that "the very nature . . . of a sunset clause . . . establishes . . . a legislative intent the enhanced punishment apply to offenses committed throughout its effective period." (Pedro T., supra, 8 Cal.4th at p. 1049.) Therefore, we conclude former section 12022.6's repeal by its own terms pursuant to its subdivision (f) sunset clause should apply prospectively only. Accordingly, the trial court properly imposed the enhancements under former section 12022.6.

III

Substantial Evidence to Support Count 5 and Count 7 Convictions

Mazur contends there is insufficient evidence to support his count 5 conviction for grand theft and count 7 conviction for grand theft from an elder adult. In particular, Mazur argues that the evidence shows Donald knowingly consented to his (Mazur's) transfer of $500,000 from Donald's Scottrade account to USMI's bank account.

A

At trial, the prosecution relied on the theories of false pretense and embezzlement in support of its grand theft counts. The trial court instructed with CALCRIM No. 1804 on the false pretense theory of theft, stating:

"To prove a defendant is guilty of theft as a perpetrator by the theory of theft by false pretenses, the People must prove that:

"1. The defendant knowingly and intentionally deceived a property owner by false or fraudulent representation or pretense; AND

"2. The defendant did so intending to persuade the owner to let the defendant take possession and ownership of the property; AND

"3. The owner let the defendant take possession and ownership of the property because the owner relied on the representation or pretense. [¶] . . . [¶]

"A false pretense is any act, word, symbol, or token the purpose of which is to deceive.

"Someone makes a false pretense if, intending to deceive, he does one or more of the following:

"1. Gives information he knows is false; [¶] OR

"2. Makes a misrepresentation recklessly without information that justifies a reasonable belief in its truth; [¶] OR
"3. Does not give information when he has an obligation to do so; [¶] OR

"4. Makes a promise not intending to do what he promises. [¶] . . . [¶]

"An owner relies on false pretense if the falsehood is an important part of the reason the owner decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor the owner considers in making the decision. If the owner gives up the property some time after the pretense is made, the owner must do so because he or she relies on the pretense."

A false pretense may be either express or implied from words or conduct. (People v. Whight (1995) 36 Cal.App.4th 1143, 1151.) However, a false pretense that is not in writing must be corroborated. (People v. Gentry (1991) 234 Cal.App.3d 131, 138.)

The trial court instructed with CALCRIM No. 1806 on the embezzlement theory of theft, stating:

"To prove a defendant is guilty of theft as a perpetrator by the theory of theft by embezzlement, the People must prove that:

"1. An owner entrusted his or her property to the defendant; [¶] AND

"2. The owner did so because he or she trusted the defendant; [¶] AND

"3. The defendant fraudulently converted or used that property for his own benefit; [¶] AND

"4. When the defendant converted or used the property, he intended to deprive the owner [of] it.

"A person acts fraudulently when he takes undue advantage of another person or causes a loss to that person by breaching a duty, trust or confidence. . . ."

Embezzlement involves the taking of personal property from its owner without the owner's consent with the intent to deprive the owner permanently of the property. (MMM Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 185.)

The court also instructed with CALCRIM No. 1861, stating in part: "You may not find a defendant guilty of theft unless all of you agree that the People have proved that defendant committed theft under at least one theory [i.e., either theft by false pretense or theft by embezzlement]. But all of you do not have to agree on the same theory."

The jury found Mazur guilty of, inter alia, grand theft against Donald under count 5. The jury also found Mazur guilty of theft from an elder adult under count 7, which count was based on the underlying theft committed against Donald alleged in count 5. The court imposed a sentence of two years for his count 5 conviction and a consecutive two-year enhancement pursuant to section 12022.6, subdivision (a)(2). It then stayed execution of that sentence pursuant to section 654. The court imposed a sentence of three years for his count 7 conviction and a consecutive two-year enhancement pursuant to section 12022.6, subdivision (a)(2). It then stayed execution of that sentence pursuant to section 654.

B

When a conviction is challenged on appeal for insufficient evidence to support it, we apply the substantial evidence standard of review. (People v. Vines (2011) 51 Cal.4th 830, 869; People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence to support the conviction. (Vines, at p. 869; Johnson, at p. 578.) Substantial evidence is evidence that is reasonable, credible, and of solid value such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)

C

Contrary to Mazur's assertion, we conclude there is substantial evidence to support his count 5 conviction of grand theft against Donald. As discussed ante, Mazur falsely told Helen, Donald's daughter, that he owned his Mount Soledad home, that USMI was worth billions of dollars, that USMI had two manufacturing plants, that its SafeSnap syringe was used worldwide, and that top pharmaceutical companies were interested in buying USMI. Mazur's false representations led Helen to believe he was a knowledgeable financial person. After Helen introduced Mazur to Donald, Mazur claimed to be a "tax guru" and offered to help Donald with his taxes and place all of Donald's tax information onto a computer disc. Mazur subsequently told Donald he knew a lot about trading stocks and offered to help Donald with his trades. Mazur befriended Donald by frequently visiting him, giving him small gifts, and telling him he would take him golfing. Mazur added himself as a signatory to Donald's brokerage account so that he could make trades for Donald. Mazur persuaded Donald to change his trust by forming a new trust and limited partnership between Donald and Helen, which would own his Oceanside home and securities worth about $2 million.

At the June 2013 lunch meeting at a La Jolla restaurant, while Melanie was away from the table, Mazur had Donald, who was 95 years old and legally blind, sign three financial documents without reading them. Donald and Melanie did not know the documents that he signed consisted of an agreement making Mazur a general partner in the new trust/partnership, a USMI common stock purchase agreement, and an authorization allowing Mazur access to Donald's Scottrade brokerage funds. Mazur repeatedly resisted requests by Melanie and Donald for copies of the documents that Donald had signed at the restaurant. A few days after that lunch, Mazur went to Donald's Scottrade brokerage office, presented his stock trade authorization, and requested that $500,000 be transferred from Donald's account to USMI's bank account. When the office manager called Donald about Mazur's requested transfer, Donald replied, "I don't I don't know what you're talking about." Mazur then intervened, took the phone from the manager, and told Donald that the brokerage office needed his driver's license. Mazur picked up Donald and drove him to the brokerage office where Donald presented his driver's license to the manager. The manager then executed Mazur's requested $500,000 wire transfer from Donald's brokerage account to USMI's bank account. About a month later, Manjarrez delivered copies of the signed documents to Donald. When Melanie read the documents to Donald, he became upset because the documents were not what he had agreed to.

Based on the above evidence, we conclude that there is substantial evidence to support Mazur's count 5 conviction on the theory of grand theft by false pretense. In particular, the jury reasonably could infer that Helen repeated to Donald the false statements Mazur made to her regarding his wealth and USMI's financial success and prospects. Furthermore, the jury reasonably could infer that Mazur knowingly and intentionally deceived Donald by falsely telling him that he was a tax guru and, in effect, a stock trading expert and by persuading him to change his trust by forming a new trust and limited partnership between Donald and Helen for the false reason that it would save taxes. Importantly, the jury also reasonably could infer that Mazur knowingly and intentionally deceived Donald, who was legally blind, to sign documents in Melanie's absence that Donald had not agreed to and that instead actually gave Mazur the authority to, inter alia, access his Scottrade brokerage funds. Mazur thereafter used that authority to take $500,000 from Donald's brokerage account and transfer it to a USMI bank account. Based on the evidence, the jury reasonably could find that Mazur made false representations and/or pretenses to Donald, knowing them to be false, with the intent to persuade Donald to let him take possession and ownership of Donald's property (i.e., his Scottrade brokerage funds) and that Donald let Mazur take possession and ownership of that property because he relied on Mazur's false representations and/or pretenses. Accordingly, there is substantial evidence to support Mazur's grand theft conviction on count 5 on the theory of false pretense.

Likewise, we conclude there is substantial evidence to support Mazur's grand theft conviction on the alternative theory of embezzlement. In particular, the jury reasonably could find that Donald entrusted his Scottrade account to Mazur by giving him authorization to transfer its funds and did so because he trusted him. The jury reasonably could also find that Mazur fraudulently converted or used Donald's Scottrade account for his own benefit by transferring $500,000 from it to a USMI bank account. Finally, the jury reasonably could find that when Mazur converted or used the funds from Donald's Scottrade account, he intended to deprive Donald of it. Accordingly, there is substantial evidence to support Mazur's grand theft conviction on count 5 on the theory of embezzlement. Therefore, whether on a theory of false pretense or embezzlement, the jury properly found that Mazur was guilty of grand theft under count 5.

D

Mazur also contends there is insufficient evidence to support his count 7 conviction for grand theft from an elder adult under section 368, subdivision (d). That statute provides: "Any person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, . . . and who knows or reasonably should know that the victim is an elder or a dependent adult, is punishable . . . ."¹² (§ 368, subd. (d), italics added.) The trial court instructed with CALCRIM No. 1807 on the offense of theft from an elder adult of an amount greater than $950, stating:

12 If the value of the property taken from an elder adult exceeds $950, the defendant may be punished by a fine of up to $10,000 or by imprisonment for two, three, or four years, or by both that fine and imprisonment. (§ 368, subd. (d)(1).) Alternatively, the court may punish the defendant with a fine of up to $2,500 or by imprisonment in a county jail for up to one year, or both that fine and jail imprisonment. (§ 368, subd. (d)(1).)

"To prove that the defendant is guilty of [theft from an elder adult] as a perpetrator, the People must prove that:

"1. The defendant committed theft; [¶] AND

"2. The property taken was owned by an elder adult; [¶] AND

"3. The property, good, or services obtained was worth more than $950; [¶] AND

"4. The defendant knew or reasonably should have known that the owner of the property was an elder adult.

"To decide whether the defendant committed theft, please refer to the separate instructions that I have given you on that crime and theories of liability. In this case, the prosecution's theory of theft for these charges is theft [by] false pretenses and theft by embezzlement.

"An elder is someone who is at least 65 years old. . . ."

We conclude there is substantial evidence to support the jury's verdict finding Mazur guilty of grand theft from an elder adult under count 7. Mazur does not dispute that the evidence showed that Donald was at least 65 years old. In fact, he was 95 years old at the time of the alleged offense. Therefore, the only ground on which Mazur asserts that there is insufficient evidence to support his count 7 conviction is his argument above that there is insufficient evidence to support the underlying offense of grand theft. However, we concluded ante that there is substantial evidence to support the jury's finding that Mazur committed grand theft against Donald under the theory of either false pretense or embezzlement. Because there is substantial evidence to support the jury's finding that Mazur committed grand theft against Donald and that Mazur knew or should have known Donald was at least 65 years old, we conclude there is substantial evidence to support Mazur's conviction of grand theft against an elder adult under count 7.

E

In support of his contention that there is insufficient evidence to support his count 5 and count 7 convictions, Mazur argues that the evidence shows Donald actually consented to his (Mazur's) transfer of $500,000 from Donald's brokerage account to a USMI bank account. In support of his consent argument, Mazur cites a recording of a phone call from a Scottrade broker, Brett Clement, to Donald that occurred a few days after that $500,000 transfer. Because Clement was away from the Scottrade office on vacation on the day that Mazur made the $500,000 transfer, Clement subsequently called Donald to inquire about that transfer. Donald told Clement that Mazur "wanted to make a trade" and that he (Donald) had to go to the Scottrade office and "show my driver's license." (Italics added.) Clement replied that it would be okay if Mazur wanted to "place a trade in the office . . . because he's on the account," but then stated: "I think what happened was because [Mazur] wired the money to his company." Donald replied, "Uh, huh." Clement explained: "And it was for [$500,000] so we just needed to verify that you were aware of that. Yeah, so just a—it was a procedure that's why we needed you to actually get a copy of your driver's license." Donald replied, "I see." Clement continued, stating: "I was actually also giving you a call um, my audit department just wanted me to verify that uh you were aware that the money you wired for [$500,000] was to [Mazur's] corporation, correct?" Donald replied, "I don't even know what we did it for." (Italics added.) Donald then stated: "Just let [Mazur] take care of it." Clement replied: "[B]ut you were okay with sending out [$500,000] to . . . [USMI]?" Donald's reply was unintelligible. Clement continued to explain the transfer, stating: "[$500,000] was wired out . . . to [USMI]." Donald replied, "Okay." Clement stated: "[T]hat company actually is also owned by [Mazur]." Donald replied, "Okay." Clement then asked: "[S]o . . . you were okay with that, right?" Donald replied, "Uh, huh." Clement stated: "Okay, yeah we just wanted to make sure . . . you know that way we're just make sure that you were in full understanding . . . what the money was being sent out for and who it's going to." Donald replied, "Yeah, naturally no one showed me anything in writing [because] I couldn't see it anyway." (Italics added.) Donald continued to explain: "I just thought it was kind of silly for him [Mazur] to have to drive all the way down here you know to get my driver's license, [because] I didn't know what he's doing it for, because I'm letting him you know do my financial work." (Italics added.) Donald stated that he thought that about "the tenth of the month I would get something in writing . . . from that month to report when you send it . . . ." Donald then stated: "[S]o anyway that's alright, that was taken care of." Clement replied, "That was fine—okay." Clement then advised him that "if there's any questions or if anything . . . you don't feel comfortable about the money going out of the account[,] just always give me a call." Donald replied, "I will, I'll do that."

Contrary to Mazur's assertion, the above phone conversation does not indisputably show Donald consented to his [Mazur's] transfer of $500,000 from Donald's brokerage account to a USMI bank account. Construing the evidence and making all reasonable inferences therefrom to support the verdict, we conclude the jury reasonably could infer that Donald's statements during his post-transfer phone call with Clement showed that he was confused about what transaction Mazur had completed regarding his Scottrade account. At the time of the phone call, Donald, who was legally blind, had not yet received copies of the documents that Mazur had him sign at the restaurant. When Donald ultimately received copies of documents about one month later, he stated that they were not what he had agreed to. Accordingly, the jury reasonably could infer that at the time of the phone call with Clement that Donald thought he had given Mazur, at most, authority to conduct stock trades on his behalf and not any authority to transfer funds from his Scottrade account to accounts owned by other persons or entities (e.g., USMI). That inference is supported by Donald's initial explanation to Clement of the reason he (Donald) went to the Scottrade office the day of Mazur's trade (i.e., that Mazur "wanted to make a trade" and that he (Donald) had to go to the Scottrade office and "show my driver's license"). (Italics added.)

Furthermore, the jury reasonably could find Donald's subsequent replies to Clement's explanation of the transaction to be ambiguous or vague (e.g., "[u]h, huh;" "I see"). Donald's apparent ignorance or confusion about the transaction was further evidenced by his reply to Clement's explanation that Mazur wired $500,000 to Mazur's corporation. Donald replied: "I don't even know what we did it for." Despite his apparent ignorance or confusion about the transaction, Donald, trusting Mazur, told Clement to "[j]ust let [Mazur] take care of it." Donald later explained that no one had showed him anything in writing on the day of the transaction because he could not see it anyway. To the extent Donald made certain replies that could support an inference that he had agreed to Mazur's transfer of funds, the jury, considering the whole transcript of Donald's phone call with Clement, reasonably could reject that inference and instead reasonably infer that Donald was not aware of Mazur's transfer of $500,000 from his Scottrade account to a USMI account at the time of the transfer and therefore did not consent to the transfer. Therefore, Donald's phone call with Clement a few days after the $500,000 transfer does not indisputably show that Donald consented to the transfer or that there is otherwise insufficient evidence to support Mazur's convictions on counts 5 and 7. To the extent Mazur argues otherwise, he misconstrues and/or misapplies the substantial evidence standard of review.

We also reject Mazur's assertion that there is insufficient evidence to support his convictions on counts 5 and 7 because the prosecution during trial requested instructions on additional theories of theft. In particular, the prosecution sought instructions on the alternative theories of theft by larceny and theft by trick. The prosecution explained that the theories of theft by false pretense and theft by embezzlement may not apply to the evidence presented at trial (i.e., that those theories "simply [don't] apply when [Donald] doesn't knowingly turn over the money and he doesn't rely on anything . . . or there was not a false pretense"). The prosecution further stated: "I just don't believe [theft by false pretense] applies to the facts in this case as to [Donald]."

However, the trial court concluded the prosecution had presented sufficient evidence to support findings on the elements of the theft by false pretense and, presumably, theft by embezzlement and denied the prosecution's request for instructions on additional theories of theft. The court thereafter instructed on the theories of theft by false pretense and theft by embezzlement for counts 5 and 7 and the jury found Mazur guilty of those counts. Contrary to Mazur's assertion, we conclude that the prosecution's doubt during trial about the most appropriate theory or theories for the count 5 and count 7 theft charges based on the evidence presented does not show there is insufficient evidence to support his convictions on counts 5 and 7. The trial court properly concluded, as we concluded ante, that the record contained substantial evidence to support guilty findings on counts 5 and 7. Furthermore, to the extent Mazur asserts that the prosecution's statements constitute an irrevocable "admission" that there is insufficient evidence to support those convictions, he does not cite, nor are we aware of, any authority to support that assertion. Accordingly, we conclude Mazur has not carried his burden on appeal to show there is insufficient evidence to support his convictions on count 5 and count 7.

IV

Lesser Included Offenses

Mazur contends that his count 5 and count 27 grand theft convictions must be dismissed because they are lesser included offenses of his count 7 and count 33 convictions for grand theft from an elder adult. The People agree with his contention, but argue that the matter should be remanded for resentencing.

A

The jury found Mazur guilty on count 5 grand theft involving Donald and count 7 grand theft from an elder adult involving Donald regarding the same criminal conduct (i.e., theft of $500,000). The jury also found Mazur guilty on count 27 grand theft involving Lionel Rentschler, who was born in 1935, and count 33 grand theft from an elder adult involving Rentschler regarding the same criminal conduct.

The court imposed a term of two years for count 5, along with a two-year section 12022.6, subdivision (a)(2), enhancement, but stayed their execution pursuant to section 654. The court imposed a term of three years for count 7, along with a two-year section 12022.6, subdivision (a)(2), enhancement, but stayed their execution pursuant to section 654. The court imposed a consecutive eight-month term for count 27, along with a consecutive four-month section 12022.6, subdivision (a)(1) and (b), enhancement. The court imposed a term of three years for count 33, along with a one-year section 12022.6, subdivision (a)(1) and (b), enhancement, but stayed their execution pursuant to section 654.

B

"Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.) Although section 954 generally permits multiple convictions arising from a single act or course of conduct, "[a] judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.' " (People v. Reed (2006) 38 Cal.4th 1224, 1227.) In determining whether a defendant may be convicted of multiple charged crimes, we apply only the statutory elements test to decide whether one or more crimes are lesser included offenses of a greater offense. (Id. at p. 1231.) Under the statutory elements test, "[w]e inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense." (People v. Ramirez (2009) 45 Cal.4th 980, 985.) If a defendant is found guilty of both a greater offense and a lesser included offense arising out of the same act or course of conduct, the conviction for the lesser included offense must be reversed. (People v. Sanders (2012) 55 Cal.4th 731, 736 (Sanders).)

C

Mazur asserts, and the People agree, that because count 5 grand theft is a lesser included offense of count 7 grand theft from an elder adult and count 27 grand theft is a lesser included offense of count 33 grand theft from an elder adult, count 5 and count 27 must be reversed because those counts arose out of the same act or course of conduct as, respectively, count 7 and count 33. We agree and reverse Mazur's convictions on count 5 and count 27. Because the elements of grand theft are included within the elements of grand theft from an elder adult, grand theft is a lesser included offense of grand theft from an elder adult if it involves the same act or course of conduct. The elements of grand theft from an elder adult include the elements for grand theft and only one additional element (i.e., that the defendant knew or reasonably should have known that the owner of the property was an elder adult). Therefore, counts 5 and 27 are lesser included offenses of, respectively, counts 7 and 33 and must be reversed. (Sanders, supra, 55 Cal.4th at p. 736.)

D

As the People note, reversal of Mazur's conviction on count 5 does not impact his overall sentence because the trial court stayed the execution of the sentences it imposed for both counts 5 and 7 pursuant to section 654. Therefore, the sentence it imposed for count 7 remains the same (i.e., a term of three years for count 7, along with a two-year section 12022.6, subdivision (a)(2), enhancement, with their execution stayed pursuant to section 654).

However, as the People note, reversal of Mazur's conviction on count 27 necessarily impacts his overall sentence because the court imposed a consecutive eight-month term for count 27, along with a consecutive four-month section 12022.6, subdivision (a)(1) and (b), enhancement. Regarding that same conduct, the court imposed a term of three years for count 33, along with a one-year section 12022.6, subdivision (a)(1) and (b), enhancement, but stayed their execution pursuant to section 654. On reversal of Mazur's count 27 conviction, the additional aggregate 12-month term imposed for that count and its enhancement is stricken. In light of that change to the court's sentence resulting from our reversal of count 27, the trial court may consider whether to lift its section 654 stay on the sentence it imposed for count 33 (i.e., a three-year term for count 33, along with a one-year section 12022.6, subdivision (a)(1) and (b), enhancement). Accordingly, we remand the matter for resentencing to allow the trial court to exercise its sentencing discretion regarding count 33 and its related enhancement. (Cf. People v. Sanchez (2016) 245 Cal.App.4th 1409, 1415 [if conviction for which sentence was imposed and executed is reversed, sentencing court may merely lift section 654 stay on execution of sentence for related count].)

DISPOSITION

Mazur's convictions for count 5 grand theft and count 27 grand theft are reversed. In all other respects, the judgment is affirmed. The matter is remanded for resentencing consistent with this opinion.

BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.