Opinion
B240015
01-22-2015
THE PEOPLE, Plaintiff and Respondent, v. NEELAM BHATIA, Defendant and Appellant.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (Los Angeles County Super. Ct. No. PA070208) APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed with directions. Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Neelam Bhatia appeals from the judgment entered following her convictions by jury on six counts of grand theft of personal property exceeding $400 in value (Pen. Code, § 487, subd. (a); counts 1 - 6) with findings she took property exceeding $200,000 in value (Pen. Code, § 12022.6, subd. (a)(2)) and the crimes had the material element of embezzlement and involved a pattern of related felony conduct involving the taking of more than $500,000 (Pen. Code, § 186.11, subd. (a)(2)). The court sentenced appellant to prison for nine years eight months. After reconsideration of this matter in light of People v. Whitmer (2014) 59 Cal.4th 733, we affirm the judgment.
This is the third appellate decision pertaining to this matter. The first was People v. Neelam Bhatia (Feb. 19, 2014, B240015) [nonpub. opn.] (Bhatia I). The second was People v. Neelam Bhatia (July 2, 2014, B240015) [nonpub. opn.] (Bhatia II), a refiling of Bhatia I after, on July 2, 2014, we granted appellant's motion to recall the remittitur to permit appellant to timely file a petition for review and deemed Bhatia I refiled. Our Supreme Court granted review in Bhatia II and transferred the matter to this court with directions to vacate its decision and reconsider the cause in light of People v. Whitmer (2014) 59 Cal.4th 733, a decision rendered after Bhatia II. We vacate our decision in Bhatia II.
FACTUAL SUMMARY
1. People's Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed as to all counts, established as follows. Appellant was a real estate agent with Click and List Realty, Inc. (Click) located in Granada Hills. Click also handled escrows. A California Secretary of State form reflected appellant was the chief financial officer (CFO) and secretary of Click. Codefendant Leroy Sennette was the broker and chief executive officer of Click. As of May 2008, appellant and Sennette were signatories on Click's operating account at Bank of the West (West). In April 2009, appellant was removed as a signatory.
Sennette is not a party to this appeal.
a. Evidence as to Each of Counts 1 Through 6.
(1) Count 1 (Victim Porter Ranch Development Co.).
In October 2008, Nilesh and Dahshita Patel agreed in writing to buy property in Northridge from Shapell Industries, also known as Porter Ranch Development Company (Porter). Appellant, the Patels's real estate agent, chose Click as the escrow company. On December 8, 2008, a title company wired $573,253 into Click's operating account at West, and the Patels became legal owners of the property. Porter never received the amount due for the property. Appellant committed grand theft of money exceeding $400 in value (grand theft) by embezzling the money (count 1).
(2) Counts 2 and 3 (Victims Garcia-Alonso and Martinez).
In January 2009, Rodrigo Garcia-Alonso (Garcia-Alonso) and his wife, Maria Martinez, agreed in writing to buy a house in Northridge. Appellant represented the seller. On January 19, 2009, Garcia-Alonso, using money he had saved over 20 years, gave to appellant at her office a $19,800 deposit check, payable to Click. On January 28, 2009, the check was deposited into Click's operating account at West. On March 24, 2009, Martinez gave appellant a $112,200 cashier's check, payable to Click for the balance of the down payment. The cashier's check was deposited that day into the same account. Appellant committed grand theft of the proceeds of the deposit check and cashier's check (counts 2 and 3, respectively).
(3) Counts 4 and 5 (Victims Bidgoli and Houshmand).
In April 2009, Amir Bidgoli and his wife, Fatemeh Houshmand, agreed in writing to buy a house in Porter Ranch. Appellant was the seller's agent. Appellant told the seller to choose Click as the escrow company. On April 10, 2009, Houshmand gave appellant a $42,000 deposit check. Appellant then gave the check to Joe Panichi, Click's escrow officer. On April 14, 2009, the check was deposited into Click's operating account at West. On August 19, 2009, Houshmand, at the direction of appellant and Panichi, wired $198,238, the balance of the down payment, into Click's operating account at J.P. Morgan Chase Bank (Chase). Appellant committed grand theft of the proceeds of the deposit check and of the $198,238 (counts 4 and 5, respectively).
(4) Count 6 (Victim Shelden).
About July 2009, Ross Shelden agreed to buy a house in Calabasas. A Click employee represented the seller. On July 22, 2009, Shelden wrote a $39,000 deposit check to Click and List Escrow. On July 23, 2009, the check was deposited into Click's operating account at West. In September 2009, Shelden received a deposit receipt indicating his money had been deposited into Comerica Bank. Appellant committed grand theft of the proceeds of the check (count 6).
b. Other Evidence.
In September 2009, Michael Lewis agreed in writing to buy two Lancaster duplexes appellant had listed. Each was $75,000. On September 12, 2009, Lewis gave appellant two $20,000 deposit checks, payable to Click. On September 14, 2009, the checks were deposited into Click's operating account at Chase. In November 2009, appellant told Lewis to bring the final funds for one of the duplexes. Lewis did so, giving appellant a $55,000 check. Appellant committed grand theft of the proceeds of the two deposit checks. 2. Defense Evidence.
Appellant concedes evidence was introduced that between December 2008 and September 2009, about $1.6 million was wired from Click's operating account into an Ameritrade account with respect to which appellant was the sole beneficiary.
In defense, appellant claimed others were responsible for the fraudulent transfers of funds and, asserting a claim-of-right defense, she maintained that money transferred from Click's account to her T. D. Ameritrade (Ameritrade) account represented commissions owed to her.
ISSUES
Appellant claims (1) the trial court committed misconduct, (2) appellant's convictions on counts 2 through 6 must be reversed, (3) if not, appellant's convictions on counts 3 and 5 must be reversed, (4) appellant was denied effective assistance of counsel, (5) the prosecutor committed misconduct, and (6) cumulative prejudicial error occurred. Respondent claims the abstract of judgment must be corrected.
DISCUSSION
1. Nonprejudicial Judicial Misconduct Occurred.
Appellant claims the trial court's examination of witnesses at trial constituted misconduct. She cites several alleged instances; we have considered all of them but we discuss below representative samples and italicize challenged questions or statements emphasized by appellant in her opening brief. As discussed below, we conclude nonprejudicial judicial misconduct occurred.
a. Pertinent Facts.
(1) Alleged Judicial Misconduct During the Presentation of the People's Evidence.
(a) Calapini's Testimony.
Morick Calapini, a customer service manager for West, testified for the People about online transactions. Appellant sought to demonstrate Sennette and appellant had control of the West operating account and Sennette probably made the transfers from that account after appellant was removed as a signatory. During Calapini's testimony, the court asked if someone could still transfer money online nefariously or improperly after their name had been taken off the account. Calapini testified the online information code would not change and the court asked, "So somebody that already knew that could still work that . . . [¶] . . . [¶] . . . to their benefit?" (Italics added.)
Calapini testified that because Sennette was the only signatory, Sennette was probably the person who came to the bank and made a particular withdrawal, "but there is [sic] instances where there is a transaction where somebody knows somebody." The court asked, "So you're saying the bank could screw up and . . . a teller or some bank officer, because they knew someone to be a signatory in the past, might assume that that person was still the signatory?" (Italics added.)
(b) Tapia's Testimony.
Los Angeles Police Officer Eugene Tapia, the investigator in this case, testified that during his investigation he never found out who wired the money in the accounts. The court asked, "Counsel just asked you did you determine who forwarded the money to those accounts and you said you didn't know; but they were all accounts in the defendant's name, correct, and no one else?" (Italics added.)
Tapia testified that during his investigation he concluded appellant was involved with the theft of the money, and Tapia arrested her. Appellant then asked Tapia if there were others involved, and the prosecutor posed a relevance objection. The court said, "Sustained, unless there is a specific offer of proof that can pinpoint how it specifically relieves your client, if she is responsible. And I don't think that can be done. The issue is did she do what the People allege she did, regardless whatever everybody else may have been doing, unless somebody set her up to be the patsy. Why they would send money to her account, though, is beyond me and that's the issue, if she is the only one who had access." (Italics added.)
(c) Banki's Testimony.
During direct examination, Carlo Banki, Senior Deputy Commissioner for the Department of Real Estate, testified to the effect appellant took various continuing education courses, including an ethics course and a course on handling trust funds, but her actions contradicted what she had learned. It was common that licensees who had been disciplined had taken all the continuing education courses. The court said, "Are you saying based on the classes she indicated she took such as ethics, trust fund handling and so forth, in your opinion she wasn't too dumb to know what was right and what was wrong?" (Italics added.)
(2) Alleged Judicial Misconduct During the Presentation of Defense Evidence.
(a) Appellant's Testimony.
The challenged judicial comments discussed below involve comments to appellant and mainly pertain to money, operating accounts, and escrow accounts. Appellant testified Garcia-Alonso gave a $19,800 check to her, she gave it to Panichi, the escrow officer, and he must have deposited it in the bank. The court repeatedly reminded appellant she testified Garcia-Alonso's check went into a bank rather than an escrow account. The court said, "You said into the bank. You believe he put it into the bank?" (Italics added.) The court asked, "Not an escrow account?" (italics added) and later, "Wasn't that money supposed to go into an escrow account?" (Italics added.) The court stated, "And you just said 'a bank' " (italics added) and "And you heard it went into the bank, you just said." (Italics added.) The court later stated, "But you said it went into a bank, not an escrow account" (italics added) and "You just said it went into a bank." (Italics added.)
Appellant testified she found out during trial that for a few weeks she had been CFO of Click. Appellant did not know what a CFO of a real estate company did. Appellant had a real estate license but did not remember what a CFO did for a corporation. The court asked, "Are you saying you were made the chief financial officer without ever being told it; and it is a surprise to you when this trial began and evolved into what it has become; and by looking at this document . . . [¶] . . . [¶] . . . for the first time you were aware that you were a designated C.F.O.?" (Italics added.) The court commented, "So it is all a surprise to you," (italics added) and asked, "You don't know when [appellant's term as CFO] . . . began and you don't know when it ended?" (Italics added.)
The court later asked, "Well, where do you think the money came from that went into the Click and List operational account that . . . you were dipping into to trade to Ameritrade or wire to Ameritrade? [¶] . . . [¶] . . . All right. That you were taking from that account and transferring on your own with Mr. Sennette's approval, where did you think that money came from? [¶] . . . [¶] . . . And where did it come from? Forget belonging to the company. It is in their account. They say possession is 9/10th of the law. Where did it come from, did you have any knowledge, whatsoever?" (Italics added.)
Still later, the following occurred: "The Court: So you are saying that they were going to pay you on an installment basis for commissions that were three, four, five years old; and whenever it came up, you would tell him, hey, I need some money, could we work it off against the commissions owed to you; is that it? [¶] . . . [¶] . . . Well, something to that effect. I don't want anybody to be misled. You tell us exactly what was understood."
Later, the following occurred: "The Court: I want to get something straight. When you say your 'personal money,' . . . your personal money did come from the commissions from your real estate transactions. You didn't have any other business when you say your 'personal money,' right? [¶] . . . [¶] . . . And you hadn't inherited that? [¶] . . . [¶] . . . And you hadn't won the lotto?"
Later, the court stated, "Let me ask you one other question. Wouldn't all the money that's coming in to pay off loans, for example, the [$]500,000 plus, with [Porter], shouldn't that have been in a separate escrow account? [¶] . . . [¶] . . . Did a bell go off or a red flag come up for you when you realized that in the operating account of this little real estate company there was hundreds of thousands of dollars? How could that be? Doesn't the money go from the escrow account to the people who were entitled to it? You got your commissions, and then, the money is disbursed to everybody in your little corporation so they can have their monthly or weekly draw. How would an account at Click and List have $500,000 in it? [¶] . . . [¶] . . . Forget the deficit. Tell me how it would be that that operating account would have a half a million dollars in it when that is money that would normally be disbursed for profits and wages? Why would there be [$]500,000 in a Click and List account? [¶] . . . [¶] . . . When you were taking money out of that account, as you say, to even a balance that was owed, . . . did you ever wonder why is there so much money in this account? Shouldn't this have been disbursed if it is profits or . . . shouldn't it have gone to escrow companies if it was escrow money? [¶] . . . [¶] . . . [Y]ou were the C.F.O?"
Still later, the prosecutor asked, "On the 25th, there was only $800 in your account at the T.D. Ameritrade, after $82,000 was deposited on the 25th, is that correct . . . ?" Appellant replied yes. The following then occurred: "[By the Prosecutor:] Q You needed some more money? [¶] The Court: If she wanted to trade. [¶] By [The Prosecutor]: Q If you wanted to trade. I am sorry, if you wanted to trade. [¶] [Appellant]: Your Honor, that's not true. [¶] The Court: I am just asking. Could you continue trading with that balance? You couldn't, could you? [¶] [Appellant]: No, but it is also my personal checking account. [¶] The Court: I am not concerned about that. I just wanted to know. Can you trade without a balance?" (Italics added.) Later, the court asked, "Were you trying to distance yourself from other transactions and open that new account? [¶] . . . [¶] . . . So it would be harder to find what you were doing?" (Italics added.)
Subsequently, the prosecutor asked, "Who would wire money to your account if you didn't do that and use that language [i.e., from Neelam Bhatia for credit to Neelam Bhatia]?" The court asked, "Did anybody owe you money so that you would be getting windfalls or money owed to you from strangers or third parties? [¶] . . . [¶] . . . What [the prosecutor] wants to know, was this money you sent to yourself? It didn't come from other people, did it?" (Italics added.)
(b) Alan Wallace's Testimony.
Alan Wallace, a defense expert, was an attorney and a real estate broker. The court asked Wallace, "You said the broker is responsible for the trust account, correct? [¶] . . . [¶] . . . That doesn't mean that if a licensed sales agent somehow or another was taking money from that account by some scheme, that that person isn't liable for criminal responsibilities. It just means that the broker is also liable as the person responsible for the overall supervision of that." Wallace asked if the court was asking Wallace to assume there was a trust account for purposes of the court's question, and the court said, "Yes, somehow or another, an employee in the office was able to loot it. [¶] . . . [¶] . . . By some scheme or strategy. They are [sic] held harmless because the broker is in control of that. The broker goes down on the liability, but the person that has been taking from it can still be prosecuted." (Italics added.) Wallace replied in the affirmative.
Subsequently, the following occurred: "The Court: What if the agent isn't even getting their money for the commissions out of sales for a long time, you would expect them to not let it ride indefinitely? [¶] The Witness: You would think the agent would have said, 'Hey, what is going on here?' [¶] The Court: 'Could I see the books?' " The court later asked, "What if an agent knew that money was going into a general operating account that should be going into separate escrow accounts for individual transactions, and also knew that they hadn't been paid a lot of commissions. Are they entitled to just go into the general account with money that should have been put into escrow accounts and withdraw from that on their own, self-help? [¶] . . . [¶] . . . You don't know of any self-help law case that says they can do that, take the law into their own hands in that regard?" (Italics added.)
Appellant also cites trial court comments reflecting alleged hostility towards appellant and her counsel, and trial court comments that occurred outside the presence of the jury.
During its final charge to the jury, the court, using CALCRIM No. 200, instructed the jury, "You must decide what the facts are. It is up to all of you, and you alone to decide what happened, based only on the evidence that has been presented to you in this trial." The court, using CALCRIM No. 222, told the jury, "You must decide what the facts are." The court, using CALCRIM No. 226, instructed the jury "You alone, must judge the credibility or believability of the witnesses." The court also, using CALCRIM No. 3550, cautioned the jury, "It is not my role to tell you what your verdict should be. Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be." We will present additional facts where pertinent below.
b. Analysis.
At the outset, we might very well have concluded as to all of the above alleged instances appellant's claim is unavailing because she waived any judicial misconduct issues by failing to object. (Cf. People v. Abel (2012) 53 Cal.4th 891, 914 (Abel).) However, we address the merits of appellant's claim to forestall a claim of ineffective assistance of counsel. (Cf. People v. Turner (1990) 50 Cal.3d 668, 708.)
Evidence Code section 775 provides, in relevant part, "The court, on its own motion . . . may call witnesses and interrogate them the same as if they had been produced by a party to the action, . . . ." Section 775 codifies traditional case law. Our Supreme Court has recognized it is not merely the right but the duty of a trial judge to see the evidence is fully developed before the trier of fact and to assure ambiguities and conflicts in the evidence are resolved to the extent possible. (People v. Carlucci (1979) 23 Cal.3d 249, 255.)
However, "Trial judges 'should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.' [Citation.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1237-1238.) "Jurors rely with great confidence on the fairness of judges, . . ." (Id. at p. 1233.)
Accordingly, "A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution." (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207.) A trial court's behavior that conveys disdain for key defense witnesses and their testimony constitutes misconduct. (Sturm, supra, 37 Cal.4th at p. 1240.) Similarly, "A trial court commits misconduct if it ' "persists in making discourteous and disparaging remarks to a defendant's counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge." ' " (Id. at p. 1238.)
A trial judge " 'must not become an advocate for either party or under the [guise] of examining witnesses comment on the evidence or cast aspersions or ridicule on a witness.' " (People v. Cummings (1993) 4 Cal.4th 1233, 1305.) "The trial judge's interrogation 'must be . . . temperate, nonargumentative, and scrupulously fair. . . . ' [Citation]." (People v. Hawkins (1995) 10 Cal.4th 920, 948; accord, People v. Harris (2005) 37 Cal.4th 310, 350 (Harris); see Cal. Code Jud. Ethics, canon 3B(5) ["A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as (1) bias or prejudice, . . ."].)
We have set forth the trial court's examination of witnesses. The examination reflected ridicule, indicated to the jury the court's convictions, and contained persistent discourteous and disparaging remarks that discredited the defense and created the impression the court was allying itself with the prosecution. The court's questions and comments also reflected disdain for defense favorable testimony, and plainly conveyed the court did not believe such testimony. We hold the trial court's examination of witnesses constituted judicial misconduct.
Appellant asserts the trial court had a sua sponte duty to curb prosecutorial misconduct. The trial court had no such duty. (People v. Zambrano (2007) 41 Cal.4th 1082, 1153; People v. Jones (1997) 15 Cal.4th 119, 182.)
However, our analysis does not end there, because " ' "we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial." ' [Citation.]" (Abel, supra, 53 Cal.4th at p. 914, italics added.) Our Supreme Court stated in Abel, "We make that determination on a case-by-case basis, examining the context of the court's comments and the circumstances under which they occurred. [Citation.] Thus, the propriety and prejudicial effect of a particular comment are judged by both its content and the circumstances surrounding it. [Citation.]" (Ibid.)
In Harris, the Supreme Court considered the above prejudice determination in the context of a defendant's claim the trial court exhibited judicial bias during the court's examination of the defendant. (Harris, supra, 37 Cal.4th at pp. 346, 348.) The defendant claimed on appeal "the court overstepped its bounds with respect to the tone, form, and number of questions posed." (Id. at p. 350.)
Harris stated it did not endorse some of the questions of the trial court in that case, and other questions of the trial court were inappropriate. (Harris, supra, 37 Cal.4th at p. 350.) Nonetheless, Harris stated, "On the facts of this case, . . . we find no prejudice. We must assume that jurors followed their instruction not to 'disbelieve any witness' or to decide the facts based on anything the court said or did, and to disregard any intimations or suggestions the court may have made regarding the believability of any witness. (CALJIC No. 17.32.) Further, the evidence of guilt was strong and the weaknesses in defendant's assertions of innocence would have been apparent to the jury even absent the court's questions. It is not reasonably probable the jury would have reached a different guilt verdict had the court refrained from asking these questions. (People v. Watson (1956) 46 Cal.2d 818, 836.)" (Id. at pp. 350-351.)
Similarly, in the present case we must assume that jurors followed the court instructions set forth in CALCRIM Nos. 200, 222, 226, and 3550, previously discussed. (Cf. Abel, supra, 53 Cal.4th at p. 916.) In the last of these, the court told the jury, "Do not take anything I said or did during the trial as an indication of what I think about the facts, the witnesses, or what your verdict should be." Our Supreme Court has described the presumption jurors understand and follow instructions as the " 'crucial assumption underlying our constitutional system of trial by jury.' " (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
Indeed, at the beginning of the trial, the court told the jury not to take anything the court said or did during the course of the trial as an indication of what the court thought about the facts, witnesses, or what the verdict should be. The court indicated it would ask questions from time to time if it thought something was ambiguous or needed to be clarified. Both at the beginning of trial, and during recesses, the court repeatedly told the jury to keep an open mind. The court indicated in the jury's presence multiple times the jury was the final arbiter of the facts and outcome. We also note appellant's citations of misconduct comprise about 22 pages of her opening brief, as compared with over 3,900 pages of trial proceedings reflected in nine volumes of the reporter's transcript.
Further, in the present case the evidence of guilt was strong and the weaknesses in the defense case would have been apparent to the jury even absent the court's conduct. Except for appellant's contention post that People v. Whitmer (2014) 59 Cal.4th 733 barred all but one grand theft conviction in this case, there is no dispute as to the sufficiency of the evidence supporting appellant's convictions. Beyond that, appellant concedes evidence was introduced that between December 2008 and September 2009, about $1.6 million was wired from Click's operating account into an Ameritrade account with respect to which appellant was the sole beneficiary. Appellant testified she was just a real estate agent, but a Secretary of State form reflected she was CFO and secretary of Click. Appellant testified she had nothing to do with escrow, but Christian Asouad, the president of a loan company that transacted business with Click, testified, "Joe Panichi, the escrow officer, was out of the picture" and appellant was "my new escrow officer." In connection with the Patel transaction, appellant signed a refund check for escrow fees, as well as a $50,000 check to Porter as a partial payment.
Moreover, Houshmand testified that after she paid money to buy the Porter Ranch house, appellant and her husband came to Houshmand's home on August 31, 2009, and said Houshmand's "money by mistake went to other accounts" and they were "raising fund[s] in the office." Appellant said she would sell her gold and close the deal for Houshmand.
On September 2, 2009, Houshmand went to Click's office and spoke with appellant, her husband, and Sennette in an effort to get Houshmand's money back. Appellant, her husband, and Sennette were smiling while Houshmand was crying and shaking. Houshmand testified that later that evening, appellant called Houshmand and said, "we found the money. . . . We are wiring the money to the title company to close the deal." The deal never closed.
Appellant testified she knew as early as 2005 that funds had been misappropriated from Click's escrow division and "a lot of money [was] missing from every file." The $50,000 check appellant had signed as a refund to Porter was dated January 14, 2009, i.e., prior to the grand thefts at issue in counts 2 through 6. It is not reasonably probable the jury would have reached a different guilt verdict had the court refrained from its conduct. No prejudicial judicial misconduct or violation of appellant's right to a fair trial occurred. 2. The Jury Properly Convicted Appellant on Counts 2 through 6.
On February 28, 2013, this court granted appellant's request that this court take judicial notice of: (1) the March 16, 2011 formal public admonishment of Judge Harvey Giss by the Commission on Judicial Performance, (2) the unpublished opinion in People v. Lorta (May 18, 2009, B200270) [nonpub. opn.], (3) the unpublished opinion in People v. Johnson (Sep. 8, 2010, B215843) [nonpub. opn.], and (4) the unpublished opinion in People v. Coakley (Oct. 23, 2012, B231522) [nonpub. opn.], each of which documents was attached to appellant's request. We have considered these documents; in any event, our holding would be the same without them.
a. Pertinent Facts.
The information alleged six counts of grand theft. Count 1 alleged on or about December 9, 2008, appellant committed grand theft of $573,253.53 from Porter. Count 2 alleged on or about January 19, 2009, appellant committed grand theft of $19,800 from Garcia-Alonso and Martinez. Count 3 alleged on or about March 24, 2009, appellant committed grand theft of $112,000 from Garcia-Alonso and Martinez. Count 4 alleged on or about April 10, 2009, appellant committed grand theft of $40,000 from Bidgoli and Houshmand. Count 5 alleged on or about August 19, 2009, appellant committed grand theft of $198,238 from Bidgoli and Houshmand. Count 6 alleged on or about July 23, 2009, appellant committed grand theft of $39,000 from Shelden.
As our Factual Summary reveals, there was evidence the victims in counts 1 through 6 gave money to purchase real estate and the funds were placed in Click's operating accounts at West and/or Chase (not in escrow accounts). Moreover, there was evidence as to counts 2 through 5, that the above funds placed in Click's operating accounts were transferred to appellant's Ameritrade account. There was also evidence money was transferred from Click to appellant's Ameritrade, Options Express, and personal Chase accounts. Accordingly, appellant concedes in her opening brief, "Shortly after the money was deposited into one of [Click's operating accounts at West and Chase], it was moved into one of appellant's personal stock trading accounts or her savings account. (See, e.g., [supporting citations to the reporter's transcript as to each victim in this case] . . . .)" (Italics added.) Appellant also, citing the reporter's transcript, concedes in her opening brief that "all the money transferred from the Click & List operating accounts went to appellant's personal investment and savings accounts." Further, appellant's testimony provided evidence that funds obtained from Garcia-Alonso were placed in the Ameritrade account, which at one point reflected insufficient funds for trading.
Finally, appellant concedes in her opening brief, "[t]he timing of these transfers [i.e., transfers from Click's operating accounts at West and Chase into appellant's personal stock trading accounts or her savings account] coincided with times in which the investment account balances were too low to trade stocks. (See, e.g., [supporting citations to the reporter's transcript].)" (Italics added.) The jury convicted appellant, and made true findings as to the Penal Code section 12022.6, subdivision (a)(2) and Penal Code section 186.11, subdivision (a)(2) allegations, as previously indicated.
During the March 7, 2012 sentencing hearing, the trial court analyzed whether appellant properly suffered multiple convictions on counts 1 through 6 for purposes of People v. Bailey (1961) 55 Cal.2d 514 (Bailey), and whether Penal Code section 654 barred multiple punishment on those convictions. A careful review of that analysis reveals that, although the trial court occasionally joined these two analytically distinct issues (e.g., the trial court occasionally joined "scheme" language of Bailey with "divisibility" language of section 654), the trial court clearly concluded appellant properly suffered multiple convictions for purposes of Bailey because she did not commit any of the underlying thefts pursuant to a single scheme but instead devised separate schemes or separate plans to steal based on when her need for money arose. The court sentenced appellant to prison for nine years eight months, including a consecutive term on each of counts 1 through 6.
b. Analysis.
As discussed (see fn 1, ante), our Supreme Court transferred this matter to us for reconsideration in light of People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer). In a supplemental brief, appellant claims she cannot be convicted of more than one count of grand theft. We disagree. In Whitmer, our Supreme Court, interpreting Bailey, supra, 55 Cal.2d 514 (Whitmer, supra, 59 Cal.4th at p. 741), held "a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme." (Whitmer, at p. 735; id. at p. 742.) However, Whitmer observed that post-Bailey, pre-Whitmer appellate cases interpreting Bailey (Whitmer, at pp. 739-740) had "consistently held that multiple acts of grand theft pursuant to a single scheme cannot support more than one count of grand theft." (Whitmer, at p. 742, italics added.) Those appellate cases were decided during the period from 1978 through 1987 and were the law at the time of the defendant's offenses. (Id. at pp. 735, 739, 742-743.) Whitmer disapproved those appellate cases to the extent they were inconsistent with Whitmer's interpretation of Bailey. (Id. at pp. 735, 741.)
After our Supreme Court transferred this matter to this court for reconsideration in light of Whitmer, the parties filed supplemental briefs as authorized by California Rules of Court, rule 8.200(b)(1).
However, Whitmer stated, "given the numerous, and uncontradicted, [appellate] decisions over a long period of time that reached a conclusion contrary to ours, we believe today's holding is . . . an unforeseeable judicial enlargement of criminal liability for multiple grand thefts. Accordingly, that holding may not be applied to defendant." (Whitmer, supra, 59 Cal.4th at p. 742.) Thus, Whitmer concluded the defendant could not be convicted of more than one count of grand theft. (Ibid.)
In the present case, there is no dispute, and we conclude, appellant's grand theft convictions on counts 1 through 6 were based on "separate and distinct acts of theft" (Whitmer, supra, 59 Cal.4th at pp. 735, 737-738). Whitmer's holding that a defendant properly may suffer multiple grand theft convictions based on separate and distinct acts of theft governs the present case unless it is governed by the post-Bailey, pre-Whitmer appellate cases that "consistently held that multiple acts of grand theft pursuant to a single scheme cannot support more than one count of grand theft." (Id. at p. 742, italics added.)
In the present case, as to count 1, appellant committed grand theft from Porter. As to each of counts 2 and 3, appellant committed grand theft from Garcia-Alonso and Martinez. As to each of counts 4 and 5, appellant committed grand theft from Bidgoli and Houshmand. As to count 6, appellant committed grand theft from Shelden. However, each of the thefts referred to in counts 1 through 6 were separate and distinct transactions occurring on different dates and involving the taking of different sums of money. Further, the means by which appellant accomplished the thefts, as well as what the proceeds represented, frequently differed. As to count 1, the $573,253.53, part of the purchase price, was wired. As to count 2, the $19,800, a deposit, was in the form of a check. In count 3, the $112,000, the balance of a down payment, was in the form of a cashier's check. In count 4, the $42,000, a deposit, was in the form of a check. In count 5, the $198,238, the balance of a down payment, was wired. In count 6, the $39,000, a deposit, was in the form of a check. As to counts 2 and 3, the money was actually paid by different persons; Garcia-Alonso gave appellant the $19,800 check but Martinez gave appellant the $112,000 cashier's check. As to counts 1, 2, 3, 4, and 6, the moneys were deposited into Click's operating account at West while, as to count 5, the money was wired into Click's operating account at Chase.
Given the evidence in this case and appellant's previously mentioned concessions concerning the evidence, we conclude there was evidence from which a jury reasonably could infer appellant did not commit any of the thefts at issue in counts 1 through 6 pursuant to a "single scheme" (Whitmer, supra, 59 Cal.4th at p. 742). (Cf. People v. Jaska (2011) 194 Cal.App.4th 971, 983-984, fn. 10.) It follows Whitmer's holding, that a defendant may suffer multiple grand theft convictions based on separate and distinct acts of theft, applies here and appellant's convictions on counts 1 through 6 were proper. 3. No Ineffective Assistance of Counsel Occurred.
Whitmer concluded the jury in that case, by finding true the section 12022.6, subdivision (a)(2) allegation, necessarily found the defendant's grand thefts arose "from a common scheme or plan" within the meaning of section 12022.6, subdivision (b). However, in Whitmer, losses exceeded $200,000 only by aggregation of losses. (Whitmer, supra, 59 Cal.4th at pp. 735-736.) The jury in the present case, by finding true the section 12022.6, subdivision (a)(2) allegation, did not necessarily find appellant's grand thefts arose "from a common scheme or plan." This is so because the jury in the present case could have found true the subdivision (a)(2) allegation based solely on the $573,253 loss pertaining to count 1, i.e., the jury in the present case did not have to aggregate losses in order for them to exceed $200,000.
Appellant claims the trial court erroneously failed to instruct sua sponte her thefts were pursuant to one intention, one general impulse, and one plan. Even assuming this issue was not a defense with the result any trial court duty to so instruct would have arisen only in response to a defense request for such an instruction, and even assuming the trial court could not have rejected such a request on the ground such an instruction would have been inconsistent with appellant's claim-of-right defense, no prejudicial error resulted, under any conceivable standard, from the alleged trial court error in light of the evidence appellant's thefts at issue in counts 1 through 6 were separate and distinct, the evidence they were not committed pursuant to a single scheme, and appellant's concessions concerning the evidence.
Appellant claims her trial counsel provided ineffective assistance of counsel by failing to object during the following colloquies.
During Banki's direct examination by the prosecutor, Banki testified concerning the impropriety of commingling trust funds. The following later occurred: "[By the Prosecutor:] Q. If you put it into a T.D. Ameritrade account and you start to pay your child's tuition that's theft, right? [¶] A. Yes. I'm involved only to the point of revocation of that person's license. The theft is criminal. As far as [the Department of Real Estate] is concerned I have to make that distinction." As to this testimony, the court explained, "[Banki is] testifying because this is a subject matter that's beyond common knowledge and requires some sophistication to know and understand. [¶] He's not stating at this time that she committed theft. That will be for the jury to decide. [¶] You will get instructions defining what the definition of theft and/or embezzlement is, and you will make your decision when it's the appropriate time whether or not those instructions apply to this case and how they apply. [¶] So I just want it understood that this witness was giving a hypothetical response and was not usurping the power of the jury when he said something is theft." (Italics added.)
During cross-examination of Banki by appellant's counsel, Banki testified to the effect during the investigation he revoked the broker's license for the broker's lack of supervision, and revoked appellant's license for violations of the real estate commissioner's regulations. The following then occurred: "[By Appellant's Counsel:] Q When you say her lack of supervision, . . . when the complaint came in were you looking at fraud? [¶] A. Yes. [¶] Q. . . . And during the course of your investigation when it was all finalized was fraud included? [¶] A. Yes. [¶] Q Or was it just negligence? [¶] A. . . . [T]he accusation that I filed on this case there is many violations, one of which was 10176(a), which under Business and Professions Code is misrepresentation and fraud. It's like dishonest acts." (Sic.) (Italics added.)
Appellant claims her trial counsel provided ineffective assistance of counsel by failing to object to (1) Banki's direct examination testimony "suggest[ing]" appellant was guilty of theft and (2) Banki's cross-examination testimony appellant was "guilty of fraud and misrepresentation." Appellant suggests Banki made other improper comments. None of appellant's arguments have merit. The record sheds no light on why appellant's trial counsel failed to act in the manner challenged, the record does not reflect said counsel was asked for an explanation and failed to provide one, and we cannot say there simply could have been no satisfactory explanation. (Cf. People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.)
Moreover, as to Banki's direct examination testimony, he answered a hypothetical question and did not testify appellant committed the crime of theft. Fairly read, Banki's testimony on that issue indicated he was not concerned with a criminal action but only a real estate license violation. The trial court's jury admonition concerning Banki's answer cured any harm.
As to Banki's cross-examination testimony, he did not testify appellant was guilty of the crimes of fraud and misrepresentation. After appellant's counsel effectively asked if Banki had concluded during his investigation that only negligence had occurred (a question apparently intended to minimize evidence of criminality), Banki testified he filed an accusation concerning a specified code section. The court gave instructions to the jury concerning witnesses and expert witnesses. We presume the jury followed the instructions. We reject appellant's ineffective assistance claim as to any of the challenged testimony of Banki. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) 4. No Prejudicial Prosecutorial Misconduct Occurred.
During its final charge, the court instructed the jury with a modified CALCRIM No. 226 (regarding witnesses), and a modified CALCRIM No. 332 (regarding expert witnesses).
Appellant claims the prosecutor committed misconduct during his cross-examination of appellant, and during opening argument, as follows.
a. The Prosecutor's Cross-examination of Appellant.
During cross-examination, appellant testified she lived in the same house with her husband and would talk to him about her daily business. The following then occurred (and we emphasize below what appellant emphasizes): "[By the Prosecutor:] Q And would you have occasion to talk about your finances? [¶] A Yes, being my personal money and being my personal accounts, what has that got to do with Click and List? [¶] Q My question to you -- it has everything to do with Click and List. More importantly, it has everything to do with every victim in this case that is out of their lifetime savings. That's what it has to do with. You asked me a question. Okay. [¶] Now, let's just look at the month of January of 2008. By the way, I have a question to ask you. [¶] Do you have any sympathy towards any of the victims in this case? [¶] A Absolutely."
Appellant claims the above italicized comments of the prosecutor were misconduct. First, appellant failed to object on the ground of prosecutorial misconduct and failed to request a jury admonition with respect to the prosecutor's comments, which would have cured any harm. Appellant waived the issue of prosecutorial misconduct. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Mincey (1992) 2 Cal.4th 408, 471.) Moreover, in light of all of the evidence in this case, we see no reasonable probability the prosecutor's brief and isolated comment or the prosecutor's question could have influenced the jury's guilt determination. (Cf. People v. Medina (1995) 11 Cal.4th 694, 760.)
b. The Prosecutor's Opening Argument.
During the prosecutor's opening argument, the prosecutor commented to the effect (1) appellant testified she was entitled to the money because she was entitled to commissions, but (2) the real crux of the case was appellant did not introduce a single document to support that testimony. The prosecutor also commented he would read some jury instructions about that issue. The prosecutor then stated, "But I want to also say to you that if the prosecutor, that being me, gets a little animated and I do often, I want to say to you that trying to chase this mouse down the street hasn't been easy. . . . And if I get animated and because it's been a long time coming, there is a lot of people that are hurt in this." (Sic.) The court interrupted and asked whether by the word "mouse," the prosecutor was referring, not to appellant, but to the issue, and the prosecutor replied yes.
Later, the prosecutor, reviewing evidence concerning counts 1 through 5, commented as follows. Appellant had Houshmand wire the $198,238 to Chase instead of West so the money would not be traced. As soon as Houshmand wired that money, checks were drawn against it with an illegible signature and it was "that bad of a theft." The prosecutor then stated, "What is worse about it is that the defendant in this case needs to be held accountable for a variety of reasons. And one of them is because of the amount of people that she harmed. I don't know what is worse, literally hurting someone physically or hurting them financially for the rest of their life. . . . Neither one are good. But they are certainly comparable." (Sic.)
The prosecutor later commented to the effect the testimony best demonstrating appellant lacked a good faith belief that she was entitled to the money going into Ameritrade "is "[P]oor Mr. Garcia Alonso . . . [who] gave all his money for this, to purchase a home for his family. . . . [¶] . . . And I thought he was a great guy. He was polite. He was decent, honest, meaningful. And basically . . . testifies that there were two deposits, . . . $19,800, and $112,200. That he never got the correct paperwork. . . . [H]e was given a temporary occupancy and the keys and went in. That he lived there with his family, until finally he was told, you gotta move, you are being evicted. The escrow didn't go through. [¶] We know . . . from the bank records. He was out with his kids and he had to leave our state because he can't live here because it is too expensive because all his money is in her pocket. [¶] Also some degree to my animation. It makes me angry. It's not right." (Sic.)
Appellant claims the above italicized comments of the prosecutor were misconduct. Appellant waived the issue by failing to object on the ground of prosecutorial misconduct and by failing to request a jury admonition with respect to the prosecutor's comments, which would have cured any harm. As to the merits, the challenged comments were not misconduct but were fair comment on the evidence. (See People v. Hill (1998) 17 Cal.4th 800, 819.) 5. The Abstract of Judgment Must Be Corrected.
In light of our above resolution of appellant's claims, we reject her additional claim the trial court committed prejudicial cumulative error.
The court sentenced appellant to prison for nine years eight months. The abstract of judgment reflects the sentence as nine years four months. Respondent claims the abstract of judgment must be corrected. We agree. (Cf. People v. Humiston (1993) 20 Cal.App.4th 460, 466, fn. 3.) We will direct the trial court to do so.
DISPOSITION
The judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting appellant's total prison sentence is nine years eight months.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, Acting P. J. We concur:
ALDRICH, J
Retired Presiding Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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