Opinion
A154726
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. ROGER KUO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN223940)
Defendant Roger Kuo ran a business, The Finest Watches, that sold luxury watches. After several customers accused him of defrauding them, he was charged with 10 counts of grand theft. A jury acquitted him of three of the counts but convicted him of the remaining seven, and the trial court placed him on probation for five years with a condition that he serve a year in jail.
On appeal, Kuo contends that (1) insufficient evidence supports his convictions; (2) the trial court erred by failing to give a unanimity instruction and answering a related jury question; and (3) the jury should have been instructed on and allowed to hear argument involving the accomplice liability of his only employee, who testified for the prosecution. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Finest Watches
When Kuo was growing up, his parents ran a jewelry business in San Francisco. After he graduated from college with a degree in business administration, he worked as a salesperson for the family business. Because of his personal interest in watches, he "started introducing watches into their inventory and selling them."
Kuo started his own jewelry business in late 1999, and he ran it from his parents' store. He eventually switched his focus to selling watches, primarily online, and incorporated the business as "TheFinestWatches.com" in 2005. The same year, he hired Jessica C. as a full-time employee, and they later moved to an office in the Tiffany Building.
Jessica C. testified that Kuo hired her as his "assistant" to do "pretty much anything that needed to be done, whether it was outward facing" by interacting with clients "or back end logistics of . . . running his business." She also performed personal tasks for him, such as picking up his daughter. Although she originally worked in the office, she eventually transitioned to work mostly from home.
Kuo, who testified in his own defense, said he hired Jessica C. "to be the bookkeeper and handle all of the financial stuff." He explained that he "hated accounting" and intended for her to "handle that entire part of the business, everything to do with the numbers." He "relied on her knowledge and expertise in accounting, and then also [an] accountant's sometimes instructions to her."
The Finest Watches was not an authorized dealer of any watch manufacturers. Instead, the business operated "in the gray market," acting as a middleman between authorized dealers from which it bought watches and clients to whom it resold watches. The business sold watches primarily through its own website, in contrast to authorized dealers, who are not allowed to sell watches online. The business also listed watches on eBay and Chrono24, an online marketplace for watches.
Despite the high prices of the watches, The Finest Watches had low margins, netting about two percent per transaction. According to Kuo, "business was extremely good the first 10 years," but in late 2010 "business became more difficult" because of the financial crisis. Not only were consumers less interested in buying luxury goods, but Swiss watch manufacturers cut production, making it harder to find particular watches.
The business's website, whose content was written by Kuo, listed thousands of watches, claiming that "TheFinestWatches.com takes pride in its large inventory of quality timepieces." One of the website's slogans was "buy it today, wear it tomorrow." Although there were usually about 12,000 watches listed on the website, the business generally had no more than 50 watches "actually on the premises at any given time." Jessica C. agreed that "the business model . . . was not to keep things in stock in an inventory, but rather to go out and find watches after [the business] receive[d] money from a customer."
As to most of the thousands of watches listed, the website directed customers to contact the business to ascertain availability. Some watches were listed as "in stock," however, which Jessica C. testified meant either that the watch was in the business's physical inventory or that the watch was on an authorized dealer's inventory list. The Finest Watches generally received such lists from vendors on a weekly or monthly basis, but the lists were not updated "in real time," and a watch's appearance on a list did not guarantee that the dealer still had it. Jessica C. testified that entry level watches costing under $10,000 were generally easy to find but more expensive watches were not. Nevertheless, Kuo would list rarer watches as "in stock" based on inventory lists that might be outdated, and she testified that she had numerous disagreements with him about the practice.
Customers could place orders for watches on TheFinestWatches.com but could not pay through the website. Rather, once the business received an order, Kuo would determine whether it was available from another dealer and, if so, contact the customer to confirm he or she wished to purchase it. Dealers generally would not send Kuo a watch he had ordered until receiving full payment.
The business occasionally handled consignment sales as well. Generally, consignment agreements established the price at which the piece would be sold or provided that any reasonable offers would be relayed to the customer.
The money customers paid to The Finest Watches would "wind up in a big pot and just [be] spent down as needed." Jessica C. testified that she was "responsible for checking [the business accounts] and relaying" information about them, including balances and the status of unpaid checks, to Kuo "on a daily basis." According to her, once the business began struggling Kuo was "[p]rimarily" responsible for prioritizing which checks needed to be paid to avoid having others bounce. She testified, "[I]t was a vicious circle of who do we pay first. Unfortunately, there were times when . . . the funds that were there were not enough to cover the checks. And more often than [not], . . . there was not much that could be done because simply the funds weren't there." Thus, money a customer sent to purchase a particular watch would often be used to pay other business expenses instead. The Finest Watches entered payment plans with some customers to pay refunds, and money from new sales was sometimes used to make these payments.
Jessica C. testified that, in addition to receiving a paycheck, Kuo withdrew money from the business account for his personal expenses, including his "mortgage, daughter's tuition, medical bills[, and] . . . daily expenses." Kuo characterized these as capital withdrawals. At his request, Jessica C. sometimes transferred money from the business account to his personal account to pay for specific personal expenses, such as a cake for his daughter's birthday party. As the business's financial troubles mounted, she and Kuo fought about his use of the company's money. She believed that "deep down he realized" that he was using too much of the business's money, "but he was always very, very optimistic that there [would] always be another sale, or somehow it will be made up." It was her belief that he always intended to fulfill any order he took, even if it was "very difficult when the account's often in the negative."
B. The Transactions Leading to Kuo's Convictions
As do the parties, we omit detailed discussion of the transactions underlying the counts of which Kuo was acquitted. Nor do we discuss the testimony of the other defense witnesses, which primarily consisted of character testimony, testimony from other customers about successful transactions, and testimony from other dealers about industry practices and some of the transactions at issue.
Kuo was arrested in January 2014, and The Finest Watches was forced to start shutting down at the end of that year. He was tried in 2018 and convicted of seven counts involving six customers. Four of the counts were argued to the jury on an embezzlement theory, and the remaining three counts were argued to the jury on a theory of theft by false pretenses.
1. Garrett H. - embezzlement of diamond ring
In December 2008, Garrett H. entered a consignment agreement with Kuo's business to sell a three-carat diamond. Kuo testified that he gave Garrett H. an initial estimated value of $18,000 to $22,000, although the agreement provided that the consignment price would be determined after the diamond was officially graded. The agreement also provided that any "reasonable offers will be relayed to the consignor for approval," which Garrett H. agreed he understood to mean that Kuo was not "allowed to just sell . . . the diamond without telling [him]."
Garrett H. also understood that once the diamond sold at an agreed-upon price, Kuo was entitled to a 10 percent commission fee and Garrett H. would receive the balance within a "reasonable" amount of time. The consignment agreement provided that either party could terminate it at any time, which Garrett H. understood to mean that he could "take [the diamond] back at any time," since he remained the owner despite transferring possession to Kuo.
Garrett H. testified that over the next few months, after he was told that movement on a sale was "very slow," he repeatedly contacted the business to try to get the diamond back. Finally, after leaving several unreturned messages, Garrett H. received an appraisal of the diamond in April 2009. Jessica C., who was trained to appraise gemstones, prepared a report based on an outside organization's grading of the diamond that stated "the total approximate replacement value" of the diamond was $35,032. Kuo testified that this figure represented the cost to buy the diamond "brand new, at the extreme highest retail value," not the proceeds that could be expected from a consignment sale.
Garrett H. continued to call once every week or two throughout the following year to check on the consignment's status, but his calls were rarely answered or returned. Bank records showed that the diamond sold for $24,684 in January 2010 and that The Finest Watches spent $25,000 on the same day the funds were available in its bank account. Garrett H. was not informed of the sale.
In December 2010, about two years after entering the consignment agreement, Garrett H. notified The Finest Watches that a family friend of his was interested in buying the diamond. He said the friend might be willing to offer $25,000, but both Jessica C. and Kuo told him that no one would pay that price for the diamond. Garrett H. stated that he would leave that up to his potential buyer and indicated he wanted the diamond back.
Kuo then informed Garrett H. that he "hadn't had [the diamond] for a while" because he had sold it to a wholesaler who then sold it to a private party. Garrett H. was unhappy, since Kuo never relayed an offer to him, and he told Kuo he would "rather have the stone back" so he could sell it to his friend. Kuo said he could not get the diamond back, and he would not tell Garrett H. when the sale had occurred or what amount he received for it.
Kuo, however, testified that Jessica C. handled the consignment and he was unaware the diamond had sold. Kuo claimed he merely told Garrett H. that the diamond was still with another dealer who was trying to sell it. According to Kuo, after he learned from Jessica C. that the diamond had in fact sold, he asked her to pay Garrett H. Kuo claimed he did not realize until trial that the diamond had sold 11 months before his conversation with Garrett H.
Garrett H. testified that Kuo sent him a "deposit check" for $5,000, which Kuo testified was a figure Jessica C. decided was appropriate. Garrett H. did not cash the check because he did not want that interpreted as his acceptance of the transaction. He testified that he repeatedly called and told Kuo that he would not cash the check and wanted the diamond back.
Eventually, Garrett H. did cash the check, because he felt he "had no other recourse" and wanted to recover at least some of the money owed. He continued to call the business regularly throughout 2011, but "there was no response at all." In 2013, after investigating his legal options and being contacted by the district attorney, Garrett H. traveled from his home in Los Angeles to meet with Kuo in person to, in Garrett H.'s words, "try to solve this and make me whole."
Kuo agreed to Garrett H.'s proposal that he write several post-dated checks to cover the balance owed. Garrett H. successfully cashed the first check, but the second check bounced. Garrett H. asked Kuo to ensure there were sufficient funds in the account, but the check still would not go through. Finally, after Kuo's arrest in 2014, he informed Garrett H. that he could deposit the checks, and Garrett H. was finally able to cash them. He ultimately received about $21,000 for the diamond, which Kuo testified was within the range Garrett H. had been told to expect.
2. Christina B. - embezzlement of $16,100
In 2011, Christina B. decided to buy her husband a nice watch for his fortieth birthday. They decided to trade in his existing watch, a broken Cartier, to help pay for the new watch. The Cartier store in San Francisco referred her to Kuo, who told her the broken watch's trade-in value was $900. She and Kuo communicated over the next few months about "which watches [for her husband] he might be able to get and the pricing." Her husband wanted to try watches on in person before deciding on a model, and she testified that Kuo "explained that he didn't have them all in stock. That he would be able to obtain them from his dealers for [the couple] once [they] made a decision."
Christina B.'s husband was interested in an Audemars Piguet watch, which Kuo said he could obtain for $17,000, minus the trade-in value of the Cartier. Christina B. testified that Kuo said "he would be getting it through a dealer," who had "one left in stock." On April 14, 2011, she confirmed that she wanted to purchase the watch and provided Kuo with a shipping address. The emails documenting these exchanges were introduced into evidence.
The next day, Christina B. sent a wire transfer for $16,100, the full amount owed, to The Finest Watches. Over email, Kuo confirmed that once he received the money, he "should have the watch within a few days so it will probably be shipped out late next week." Records showed that the business received the wire transfer on April 15, and most of the money was spent the same day.
On April 19, Jessica C. sent an email to Christina B. confirming the payment was received. Jessica C. indicated it could take up to 10 business days to receive the watch from the supplier, at which point it would be shipped overnight to Christina B.
Paperwork introduced by the defense showed that The Finest Watches sent a purchase order to another dealer on April 26. Kuo testified that the dealer had earlier indicated the watch was available, and he sent the purchase order after unsuccessfully attempting to confirm by phone. According to Kuo, it turned out the dealer actually had the watch in a different dial color than Christina B. wanted. Jessica C. spoke to Christina B. on April 29, and Christina B. said she still wanted the original dial color, black. Within a few days, Jessica C. sent an email to Christina B. asking if she was "flexible on the type of metal in the watch," which had stainless steel and titanium versions. Christina B. confirmed that, as she had said in a previous email, she wanted the stainless steel version with a black dial.
Christina B. testified that Jessica C. responded that staying with the originally requested watch was fine and she would "update the order." Kuo had told Christina B. that both versions cost $17,000, so she did not think that there "would be any problem." She testified, "[T]here was never any communication to us that one would be available and the other wouldn't be or that one was harder to find or that there would be any different pricing."
Kuo claimed he found out around May 12 that the watch's price had increased on May 1, and his "understanding" was that Jessica C. informed Christina B. of this. He found the correct watch with another dealer and sent a purchase order on May 24.
Christina B., however, testified that she called the business numerous times throughout May and June but was unable to reach Kuo until mid-June. At that point, he told her about the price increase and said he needed more money to get the watch. Christina B. refused to pay the increase, pointing out that he received her money well before the increase, and she "left the call with the understanding that he would be getting the watch." She did not hear back from him, and when she finally reached him in early July he said "his dealer was on vacation and that [the watch] would be to him by the middle of July."
Christina B. did not hear from Kuo by mid-July, so her husband, whose "birthday had come and gone," called him. Kuo told her husband that "he would give the money back." Her husband responded that Kuo had "had [their] money since April" and they "just want[ed] the watch at this point." After further discussion, however, Christina B. and her husband decided they wanted to find the watch elsewhere.
As a result, Christina B. called Kuo back within a week and told him they wanted to accept his offer and have their money and the broken Cartier returned. Kuo told her the Cartier had been sold, so Christina B. told him she would accept a $17,000 refund. Kuo said he wanted to think about it, and when they spoke again he said he would rather deliver the Audemars Piguet as promised. Christina B. agreed, on the condition that he ship the watch by August 5. According to Kuo, however, he intended to obtain the watch for her only if she paid the price increase.
Kuo did not provide Christina B. with a tracking number by the given deadline, and he did not respond when she attempted to reach him. She then informed him that she and her husband would take legal action against him. The couple hired a lawyer, who put together a payment plan, but Kuo declined to sign it. In February 2013, he sent them a $2,500 check without explanation, which they did not cash because "clearly he owed [them] a lot more." Eventually, the couple sued Kuo and obtained a judgment of over $20,000, money they had not collected by the time of trial in this matter.
3. Fernando M. - embezzlement of watch and $20,000
In 2011, Fernando M. bought an Omega watch from The Finest Watches. Satisfied with the transaction, he contacted Kuo around the end of that year to purchase a Patek Philippe model 5059G watch. According to Kuo, he located the watch with a dealer in Italy, and they agreed on a price of about $47,000. Kuo notified Fernando M. that with markup the total sale price would be $55,000.
Fernando M. testified that he sent Kuo several checks totaling $47,000 toward the total price of $55,000, but months went by and the 5059G never materialized. According to Kuo, Fernando M. failed to pay him the full price in time, and the Italian dealer sold the watch. Kuo and Fernando M. disagreed about what happened next, but ultimately, in place of a 5059G, Kuo sent Fernando M. a Patek Philippe World Timer watch worth about $33,000 and a Panerai watch worth about $14,000, plus $4,400 in interest.
A friend of Fernando M.'s saw the World Timer and became interested in it. Fernando M. thought about selling it because he still wanted the 5059G. In October 2012, he reached out to Kuo, who said the 5059G was "still available" for $57,000. In May 2013, Fernando M. and Kuo agreed that Fernando M. would give Kuo the World Timer to sell on consignment and an additional $20,000, and Kuo would obtain the 5059G. The consignment agreement required Kuo to pay Fernando M. the proceeds of any sale within 10 days of receiving them. Fernando M. sent the additional $20,000 to Kuo.
Kuo testified that although Fernando M. promised "a guaranteed sale" to his friend, the friend never followed through with Kuo to buy the World Timer. Fernando M. asked The Finest Watches to continue to try to sell the World Timer for him, and Kuo eventually sold it to another client for $33,500 in September 2013. Kuo testified that he did not send the proceeds to Fernando M., however, because he considered the money payment toward the 5059G he was still trying to find. Kuo believed the original agreement no longer applied, including any obligation to relay offers to Fernando M., "because this was no longer [Fernando M.'s] deal with [his friend], this was [Kuo's] deal."
Fernando M. testified, and the business's notes indicated, that Kuo did not tell him the World Timer had been sold until April 2014. Kuo told Fernando M. he had sold the World Timer for $25,000, "significantly less" than what Fernando M. was expecting given that the consignment agreement specified a sale price of $33,000. Kuo explained that the $33,500 price he ultimately sold it for in September 2013 consisted of $25,000 in proceeds due to Fernando M. plus a 30 percent markup for The Finest Watches, and the $33,000 figure did not reflect the profit Fernando M. could expect from a sale.
Fernando M. testified that he never received the $25,000, a 5059G, or his $20,000 deposit back. According to Kuo, the 5059G was available from another dealer throughout this time, but Fernando M. never paid the outstanding balance due. Kuo claimed it was always his intent to obtain the 5059G for Fernando M., and he never meant to keep the proceeds from the World Timer's sale or the $20,000 deposit for himself instead of as a credit toward the 5059G.
4. Julia W. - theft by false pretenses of $30,380
Julia W. testified that in June 2011, she decided to buy her husband a watch for his birthday the following month. She emailed the business about a preowned Cartier watch listed as available on TheFinestWatches.com. Kuo told her the preowned watch was no longer available but said he had an unused version of the same model that she could buy for slightly more money.
Julia W., a New York resident, sat for a conditional examination before opening statements, because she was unavailable to testify later in the trial. A video recording of her examination was admitted into evidence and played for the jury.
According to Julia W., she "made it very clear that [she and her husband] were going to be out of the country for this birthday trip . . . and [she] would need the watch within about a week's time . . . . So [Kuo] said that was no problem." It was her understanding that the watch was in Kuo's inventory and he would send it to her "as soon as [she] paid for it." She testified that in reliance on Kuo's statement that he had the watch, she decided to buy it. Kuo, however, testified that he never told her he had the watch. In fact, he had merely located it for purchase from another dealer.
On July 7, Julia W. wired $30,380 to The Finest Watches. Although she expected to get the watch by July 9 or 10, it was not until July 11, two days before she said she needed it, that the business confirmed it would begin processing her order. After repeated calls, Julia W. finally reached Kuo, who said he did not have the watch. Kuo later explained to her that he "was actually getting it from someone else, and the person [he] was supposed to get it from didn't have it any[]more."
Kuo testified that he could have delivered the watch to Julia W. on time had she sent the wire transfer more quickly. According to him, the business did not actually receive her funds until July 12. He then called the dealer to order it, and the dealer said another customer had put it on hold.
After being informed that the watch was unavailable, Julia W. insisted that Kuo wire her money back immediately, and he promised to take care of it. But when she got back from her trip several days later, the money was not in her account. She repeatedly called and emailed Kuo, but he was hard to reach. When she did speak to him, he "never gave a coherent answer" about what was going on, offering various excuses about why he could not repay her.
Kuo claimed he kept trying to obtain the watch while Julia W. was on vacation but agreed to issue a refund once she demanded one. He testified that he told Jessica C. to issue the refund in installments, since they did not have enough money to pay back the full amount. He blamed Jessica C. for failing to execute the payment plan, after which Julia W. sued him. Julia W. and Kuo reached a settlement under which he eventually repaid the money with interest, three years after she first sent it.
5. Barbara E. - theft by false pretenses of $27,500
Barbara E., a resident of France, testified that she contacted Kuo in September 2011 to purchase a Rolex watch he advertised for sale through another website. In an email, Kuo confirmed he had two of the particular model she wanted "in stock," and he said he could send it to her two to three days after receiving payment. In fact, the watches were with another dealer. According to Kuo, when he wrote, "We have two in stock," he "neglected to include . . . the last three words 'with our dealer,' " because he "was probably in a rush or thinking of something else."
In reliance on Kuo's representations, Barbara E. decided to buy the Rolex. Kuo sent her a sales invoice and told her he could hold the watch for two more days. Within 24 hours, she wired $27,500, the full purchase price, to the business. She was unable to reach Kuo until several days later, however, at which point he stated that he received the money too late and no longer had the watch. Business records showed the transferred money was received and spent the same day.
Barbara E. found this "strange," since Kuo said he had two watches and had promised to hold one for her. According to Kuo, however, the two watches had different dial colors, and she had made it clear she was interested in only one of them.
Barbara E. and Kuo agreed he would find the watch for her somewhere else. She testified that after a week or so, Kuo told her he had found the watch with another dealer and had wired the money for its purchase. But "nothing happened," and Barbara E. tried to contact Kuo every day to resolve the situation. He told her "he didn't understand why the dealer wasn't sending it to him."
Kuo testified, and phone records corroborated, that he made hundreds of calls to dealers while attempting to locate the Rolex for Barbara E. He claimed that in late 2011, he sent a purchase order to a dealer who had the watch and asked Jessica C. to send the payment, but she cancelled the purchase. He asked her to pay for it again, but the dealer sold it to someone else by January 2012.
In spring 2012, after several months had passed, Barbara E. finally told Kuo she wanted to cancel her order. According to her, Kuo told her "he couldn't refund and that he had never paid the dealer and that he didn't have [her] money." She proposed a payment plan for refunding her money, since she knew he did not have enough money to pay back the full amount. Kuo initially made the payments on time, but stopped paying that summer, which he blamed on Jessica C. The payments later resumed, and Barbara E. received all but $8,000 of her money back by February 2014.
6. Nathan S. - theft by false pretenses of $34,775
Nathan S. testified that in June 2013, he wanted to obtain a particular Vacheron Constantin watch for a friend. He saw that TheFinestWatches.com had "the same exact watch" listed for a price of $34,775, several thousand dollars less than the list price. Nathan S. testified that he called Kuo, who confirmed that the watch was "in stock."
Kuo, however, stated that he never used the term "in stock" when talking to Nathan S. In emails, Kuo referred to the watch as "available," and he testified he did so only after locating it with another dealer. Kuo admitted that he should have corrected Nathan S. when the other man referred to the watch as "in stock."
Nathan S. asked for a photograph of the watch, and he testified that Kuo emailed "a picture of the watch showing that they had it physically there." Kuo claimed that he understood Nathan S. to be requesting merely "an actual picture" instead of "a stock photo out of a catalog or on the website," and the photograph he sent was "not the watch he's going to get." Kuo also told Nathan S. he could get a better price if the watch was special ordered from somewhere else, but Nathan S. wanted the watch as soon as possible and elected to purchase the watch Kuo supposedly had in his inventory.
Nathan S. sent Kuo a check for the full purchase price. He received email confirmation that his check was received and that "the watch [would] ship once the check clears." The check was deposited on June 13, but Nathan S. did not get shipping details. Jessica C. testified that much of Nathan S.'s money was transferred to Kuo's personal account between June 13 and 20.
A few weeks later, Nathan S. emailed Kuo to ask why he had not yet received the watch. Kuo responded, "I will check with the dealer next week. They are closed this week." This was the first time Kuo mentioned a dealer, and Nathan S. testified that he would not have bought the watch if Kuo had not said it was "in stock."
According to Kuo, the check did not clear until June 28. At that point, he called the dealer several times, but he did not hear back. Eventually, on July 12, the dealer told him the watch was no longer available but promised to get another one. Kuo then told Nathan S. that "the watch isn't in stock any[]more, we had to special order."
The Finest Watches had a policy that special orders required a 30 percent, nonrefundable deposit. Kuo testified that the special-order policy was reflected on the website and customer invoices, but he did not necessarily convey it verbally to customers.
Knowing the watch was discontinued, Nathan S. did not believe that a special order was possible, and he asked for a refund. Kuo responded that since "it was a special order," he would refund only 70 percent of the money. Nathan S. agreed because, in his words, "I thought [Kuo] was a fraud. Any dollar I could get in my pocket at that time I would take."
Kuo testified that he told Jessica C. to issue the 70 percent refund to Nathan S., and he confirmed to Nathan S. that a check would be sent. But Kuo also testified that he unsuccessfully tried to get the watch from the same dealer throughout the next several months and did not cancel the order with that dealer until the spring of 2014. Kuo testified that at that time, Jessica C. tried to set up a payment plan with Nathan S., but they could not agree to terms. Nathan S. never got any of his money back and never received the watch.
C. Procedural History
Kuo was charged with 10 felony counts of grand theft from nine customers. The jury acquitted him of three counts involving customers not discussed above and convicted him of the remaining seven counts, two of which pertained to Fernando M. The jury also found that the offenses involved "a pattern of related felony conduct and . . . the taking of more than one hundred thousand dollars."
The charges were brought under Penal Code section 487, subdivision (a). All further statutory references are to the Penal Code.
This allegation was found true under section 186.11, subdivision (a).
The trial court suspended imposition of the sentence on the counts involving Garrett H., Barbara E., Nathan S., and Fernando M., and it placed Kuo on five years of formal probation with the condition that he serve one year in county jail. It reduced the counts involving Julia W. and Christina B. to misdemeanors and sentenced Kuo to consecutive terms of six months in jail for each.
II.
DISCUSSION
A. Substantial Evidence Supports the Convictions.
Kuo claims that insufficient evidence supports his convictions. In evaluating such claims, " 'we review the whole record to determine whether . . . [there is] substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (In re George T. (2004) 33 Cal.4th 620, 631.) Instead, reversal is required only if " 'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Section 484, subdivision (a) provides: "Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft." Under section 487, subdivision (a), grand theft is established "[w]hen the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950)."
Larceny, embezzlement, and theft by false pretenses were originally separate crimes. (People v. Vidana (2016) 1 Cal.5th 632, 639 (Vidana).) In 1927, legislation was passed to consolidate them into the single offense of theft " 'to remove the technicalities that existed in the pleading and proof of these crimes at common law.' " (Id. at p. 642.) Thus, for almost 100 years it has been " 'unnecessary to specify in the accusatory pleading the kind of grand theft with which the defendant is charged.' " (People v. Fenderson (2010) 188 Cal.App.4th 625, 635.) In addition, "a jury need not unanimously decide what form of theft a defendant committed." (Vidana, at p. 643.)
The 1927 legislation did not alter the elements of the various types of theft, and " 'a judgment of conviction of theft, based on a verdict of guilty, can be sustained only if the evidence discloses the elements of one of the consolidated offenses.' " (Vidana, supra, 1 Cal.5th at p. 642.) "In other words, the crime is called theft, but to prove its commission, the evidence must establish that the property was stolen by larceny, false pretenses, or embezzlement." (People v. Gonzales (2017) 2 Cal.5th 858, 865-866.)
Here, the prosecution relied on two theories of grand theft, embezzlement and theft by false pretenses. " 'Embezzlement is the fraudulent appropriation of property by a person to whom it has been [e]ntrusted.' (§ 503.) The elements of embezzlement are '1. An owner entrusted his/her property to the defendant; 2. The owner did so because he/she trusted the defendant; 3. The defendant fraudulently converted that property for his/her own benefit; [and] 4. When the defendant converted the property, he/she intended to deprive the owner of its use.' (CALCRIM No. 1806.)" (People v. Fenderson, supra, 188 Cal.App.4th at pp. 636-637.) The elements of theft by false pretenses are that " '(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation.' " (People v. Williams (2013) 57 Cal.4th 776, 787.)
1. There was sufficient evidence that Kuo embezzled from Garrett H., Christina B., and Fernando M.
Kuo alleges there were two primary deficiencies in the evidence supporting the embezzlement-based convictions. We discuss each in turn.
First, Kuo claims "there was no evidence of a felonious intent to steal from the customer at the time that The Finest Watches disbursed the money that depleted [its] coffers." He argues that absent evidence connecting "any business operating expenditure on [his] part to any particular client's money," there is no "concurrence of actus reus and mens rea."
To begin with, there was substantial evidence that Kuo immediately spent the money he derived from the embezzled property. The proceeds of the sale of Garrett H.'s diamond and Christina B.'s $16,100 were spent as soon as they were received. The timing of when Kuo spent Fernando M.'s $20,000 or the proceeds of the sale of the World Timer watch was less clear. Nevertheless, Jessica C.'s testimony that all the money went into "one pot" to be spent on expenses and that the bank account was usually negative in the business's later years permitted the inference that Fernando M.'s money was immediately spent as well.
There was also substantial evidence that Kuo possessed the requisite intent at the time he spent each customer's money. "[E]mbezzlement does not require an intent to permanently deprive the true owner of his or her property." (In re Basinger (1988) 45 Cal.3d 1348, 1363.) Rather, "[a]n intent to deprive the rightful owner of possession even temporarily is sufficient and it is no defense that the perpetrator intended to restore the property nor that the property was never 'applied to the embezzler's personal use or benefit.' " (Ibid.) Thus, "the necessary mental state may be found to exist whenever a person, for any length of time, uses property entrusted to him or her in a way that significantly interferes with the owner's enjoyment or use of the property." (People v. Casas (2010) 184 Cal.App.4th 1242, 1247; People v. Sisuphan (2010) 181 Cal.App.4th 800, 813-814.) The evidence that Kuo immediately spent money entrusted to him for a particular purpose on business expenses unrelated to that purpose was sufficient to establish the required union of act and intent.
Second, Kuo claims there was insufficient evidence that he had an adequate relationship of trust with any given customer. " '[T]he offense of embezzlement contemplates a principal's entrustment of property to an agent for certain purposes and the agent's breach of that trust by acting outside his [or her] authority in his [or her] use of the property.' [Citation.] It further contemplates a relationship of trust and confidence between the perpetrator and the victim [citation] and a breach of that trust and confidence by 'conversion of trusted funds coupled with the intent to defraud.' " (People v. Selivanov (2016) 5 Cal.App.5th 726, 750.)
According to Kuo, the evidence here establishes only "a sales relationship," not "a trust arrangement," because he acquired both possession and title to the property at issue. Relying on People v. Dougherty (1904) 143 Cal. 593, he argues that "a failed sales arrangement cannot be prosecuted as an embezzlement." In that case, the defendant told the victim that, in exchange for a commission, he could sell 1500 of the victim's sacks to a third party. (Id. at p. 594.) The victim shipped the sacks directly to the third party. (Ibid.) The third party did not realize the victim was involved in the transaction and paid the full sale price to the defendant, who did not give the money to the victim. (Id. at p. 595.) The defendant testified that he bought the sacks outright from the victim and merely failed to pay back his debt. (Ibid.) The Supreme Court concluded there was insufficient evidence of embezzlement because, regardless of whose story was true, the victim never entrusted the sacks to the defendant. (Ibid.)
Dougherty is inapposite. That case merely held that property must first be entrusted to the defendant in order to be embezzled, which does not occur when the property is outright sold to the defendant. Dougherty did not, however, broadly hold that a defendant cannot commit embezzlement in the course of a sales transaction, such as by acting as a middleman. Indeed, subsequent case law is to the contrary. (See, e.g., People v. Maulucci (1962) 205 Cal.App.2d 301, 302-303 [sufficient evidence of embezzlement where defendant sold car on consignment and never paid consignor]; People v. Frazier (1948) 88 Cal.App.2d 99, 102-104 [same where defendant sold victim's trailer but never gave victim sale proceeds].) Here, there was no evidence that Kuo bought outright Garrett H.'s diamond or Fernando M.'s watch or that the money Christina B. and Fernando M. gave Kuo was in exchange for an item purchased from him directly. Rather, in contrast to Dougherty, there was ample evidence that all three clients entrusted their property to Kuo for a particular purpose—to complete a sale or purchase on their behalf—and Kuo converted the property for a different purpose. In conclusion, sufficient evidence supported the embezzlement convictions.
2. There was substantial evidence of theft by false pretenses from Julia W., Barbara E., and Nathan S.
Kuo claims there was also insufficient evidence to support the convictions based on theft by false pretenses because (1) the alleged false promises lacked corroboration as required under section 532, subdivision (b) (section 532(b)), and (2) there was no evidence he knew the stolen property did not belong to his business once the customers transferred it to him. Neither contention is persuasive.
a. The corroboration requirement
A defendant cannot be convicted of theft by false pretenses unless (1) the false pretense was accompanied by "a false token or writing"; (2) "some note or memorandum" of the false pretense is signed or handwritten by the defendant; or (3) "the pretense is proven by the testimony of two witnesses, or that of one witness and corroborating circumstances." (§ 532(b); see CALCRIM No. 1804.) "The circumstances connected with the transaction, the entire conduct of the defendant, and his [or her] declarations to other persons may be looked to for the corroborative evidence contemplated by the law." (People v. Randono (1973) 32 Cal.App.3d 164, 173 [interpreting former version of section 532].)
The false pretense as to all three counts was that Kuo indicated he had the desired watch in his possession. Kuo claims there was insufficient corroboration of Julia W.'s testimony that he told her he had the watch, because his emails to her referred only to the watch's being "available" and there was no other writing of his or other witness testimony confirming he said he physically had the watch. But Julia W. emphasized, and Kuo did not contest, that she told him she needed the watch within a week. This evidence supported the conclusion that Kuo told her he had the watch. In addition, as the Attorney General points out, the evidence as a whole "collectively showed that [Kuo] had promised his customers goods and/or services, failed to deliver or perform, and thereafter avoided their phone calls and ignored their e-mails," which "showed a pattern of behavior that was more consistent with dishonesty than inadvertence or negligence." This was sufficient to corroborate Julia W.'s testimony. (See People v. Gentry (1991) 234 Cal.App.3d 131, 139 ["When more than one witness testifies to a defendant's false pretenses, even though made on separate occasions, the multiple witness requirement is met as long as the same type of scheme is involved and the same manner is employed"].)
As to Barbara E., Kuo claims that there was "no writing, token, or other written corroboration that [he] said the watch was 'in stock,' nor was there other evidence to corroborate [her] statement that [he] had told her that." To the contrary, the evidence showed that Kuo used the phrase "in stock" in an email to Barbara E. Indeed, he admitted in his testimony that this statement was inaccurate. Clearly, this was sufficient corroboration under section 532(b) even apart from the greater evidence of Kuo's pattern of misrepresentations.
Finally, Kuo claims that there was insufficient evidence to corroborate Nathan S.'s testimony that Kuo told him the watch was "in stock." But as Kuo agreed, he failed to correct Nathan S. when the other man referred to the watch as "in stock" in an email. In addition, Kuo admitted that despite asking "for a picture of the actual watch," Nathan S. was sent a photograph of a watch that was not the one he would receive. Again, even aside from the collective evidence of Kuo's misrepresentations, these misleading responses to Nathan S.'s expressed belief that the watch was in stock corroborated Nathan S.'s testimony about the false statement.
b. Evidence of Kuo's intent
Kuo also claims that evidence of theft by false pretenses was lacking because there was no "evidence that [he] ever intended to default on any particular customer's transaction at the time [he] received the customer's money." Rather, he claims that "[o]nce [he] received the money as part of a good faith sales transaction, [he] had title to the money and could spend it for any lawful purpose," so at most he was "negligent in his accounting practices in failing to ensure that he had enough money in [the] one pot to pay for the watches ordered by the customers."
As mentioned above, theft by false pretenses requires proof that when the defendant made the false representation, he or she had " 'the intent to defraud the owner of that property.' " (People v. Williams, supra, 57 Cal.4th at p. 787.) The evidence showed that after receiving the customers' money, Kuo quickly used it for purposes other than purchasing their watches, even though he knew he might not be able to obtain the watches easily. He spent Barbara E.'s money the same day it was received. And within a week of depositing Nathan S.'s check, Kuo transferred a substantial portion of the money to his personal account. While what happened to Julia W.'s money was less clear, Kuo testified he received it on July 12 and, by the time she returned from her trip and demanded a refund, he no longer had sufficient funds to pay her back in full. In addition, there was ample evidence that the business was struggling, and we agree with the Attorney General that this permitted the conclusion that Kuo "desperately needed continuing infusions of money to placate his prior customers and the other creditors of The Finest Watches." The jury could infer from Kuo's immediate spending of the customers' money, combined with his actual understanding of the difficulty of finding watches and his financial woes, that he intended to defraud his customers when he falsely told them he had the watches they wanted.
In arguing otherwise, Kuo relies primarily on People v. Devine (1892) 95 Cal. 227, in which the Supreme Court overturned a larceny conviction because evidence of intent was lacking. (Id. at p. 228.) The defendant, a hog farmer, rounded up some hogs and sold them. (Ibid.) Hogs that belonged to his neighbor were accidentally collected and sold as well. (Ibid.) Although the neighbor's hogs had a different brand, there was no evidence the defendant noticed this. (Ibid.) Instead, "all the evidence tend[ed] to prove that he honestly believed [the hogs] were all his own." (Id. at p. 229.) The Court held that "[o]ne cannot intend to steal property which he [or she] believes to be his [or her] own. He [or she] may be careless, and omit to make an effort to ascertain that property which he [or she] thinks his [or her] own belongs to another; but so long as he [or she] believes it to be his [or her] own, he [or she] cannot feloniously steal it." (Id. at p. 231.)
Kuo contends that similar to the Devine defendant, he "believed that all the customers' payments belonged to his corporation from the time of transfer." Even if Kuo's own testimony suggested he believed this, the jury was hardly compelled to credit that testimony. Rather, relying on the evidence discussed above, the jury could also reasonably conclude that Kuo induced his customers to give him money with false promises so he could use it for his own purposes.
B. The Trial Court Did Not Err by Refusing to Give a Unanimity Instruction or in Responding to a Related Question from the Jury.
Kuo claims that the trial court erred by denying his request for a unanimity instruction and responding to a related question from the jury. We are not persuaded.
1. Additional facts
Kuo requested that the jury be instructed with CALCRIM No. 3500, the standard unanimity instruction. He argued that the jury had to "agree on a certain act that is considered to be embezzlement," but the evidence suggested several acts by which "money that was taken from certain customers [was] allegedly used in different places, for example, used for rent, used to pay Jessica's paychecks, used to pay another vendor for another order, used to pay another customer for their debts." The prosecutor responded that the parties never argued "that any specific use is an embezzlement [or not] versus some other specific use" but rather had "painted with a broad brush" in discussing Kuo's conduct. The trial court agreed that no unanimity instruction was required, observing that the People had argued "that the cumulative effect of the course of conduct was the violation in each case, and . . . there was . . . [a] single omnibus unified defense in response to each."
The jury was instructed under CALCRIM No. 1804 on theft by false pretenses. The instruction stated that it applied to the counts involving Julia W., Barbara E., and Nathan S. The jury was also instructed under CALCRIM No. 1806 on embezzlement, which it was told applied to the counts involving Garrett H., Christina B., and Fernando M. Finally, the trial court also gave CALCRIM No. 1861, which instructed, "The defendant is charged in all Counts with theft. [¶] The defendant has been prosecuted for theft under two theories: theft by embezzlement and theft by false pretenses. [¶] Each theory of theft has different requirements, and I have instructed you on both. [¶] You may not find the defendant guilty of theft unless all of you agree that the People have proved that the defendant committed theft under at least one theory. But all of you do not have to agree on the same theory."
During its deliberations, the jury sent the trial court the following note: "Instruction 1861: The cases were divided in the instructions between false pretense and theft by embezzlement. Does Instruction 1861 allow us to decide someone is guilty of false pretense if they're listed as theft by embezzlement or [vice] versa?" The court's written response to the question, which the record does not reveal was discussed with the parties before giving, was, "Yes it does. Thank you."
2. Discussion
Criminal defendants are constitutionally entitled to a unanimous jury verdict. (People v. Hernandez (2013) 217 Cal.App.4th 559, 569-570.) Based on this principle, "[a] unanimity instruction is required where ' "one criminal act is charged, but the evidence tends to show the commission of more than one such act" ' and the prosecution does not ' " 'elect the specific act relied upon to prove the charge.' " ' " (People v. Jackson (2018) 26 Cal.App.5th 371, 380.) "In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime"—in which case the instruction is required—"or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime"—in which case the instruction should not be given. (People v. Russo (2001) 25 Cal.4th 1124, 1135.) We review this claim of instructional error de novo. (People v. Quiroz (2013) 215 Cal.App.4th 65, 73.)
Kuo claims that the two theories of theft presented to the jury involve "inherently different acts—one [false pretenses] involves the initial acquisition of another's property; and the other [embezzlement] involves a subsequent disbursement of another's property." He argues that because "[t]he two acts of acquisition and disbursement necessarily occur[red] at different times and . . . [were] sometimes separated by several months and even years," it was possible that some jurors could believe the criminal act was acquiring the property and others could believe it was disbursing the property.
This is a different theory for why a unanimity instruction was needed than the one Kuo presented to the trial court, which was that multiple acts under a given count could have constituted embezzlement. Although Kuo did not thereby waive the claim he makes on appeal (see People v. Quiroz, supra, 215 Cal.App.4th at p. 73), we do not address the argument he made below.
Binding precedent makes clear that a unanimity instruction is not required just because a defendant could be convicted of theft on more than one theory. In People v. Nor Woods (1951) 37 Cal.2d 584 (Nor Woods), the defendant was convicted of grand theft after he sold a 1949 Ford with an undisclosed lien on it in exchange for money and a 1946 Ford. (Id. at p. 585.) The 1949 Ford was repossessed, but the defendant did not provide a refund or return the 1946 Ford to the victim. (Ibid.) The Supreme Court rejected the defendant's claim that it was error not to instruct the jury that it "must agree on the method by which the theft was committed"—either larceny by trick or false pretenses. (Id. at p. 586.) Which theory of theft applied depended on the intent of the victim at the time he transferred the 1946 Ford and money to the defendant. (Ibid.) The Court explained, "Irrespective of [the victim's] intent, . . . [the] defendant could be found guilty of theft by one means or another, and since by the verdict the jury determined that he did fraudulently appropriate the property, it is immaterial whether or not [the jurors] agreed as to the technical pigeonhole into which the theft fell." (Ibid.) More recently, Vidana affirmed Nor Woods's holding that a jury need not unanimously agree on the theory supporting a theft conviction. (Vidana, supra, 1 Cal.5th at p. 649.)
Kuo suggests that Nor Woods is distinguishable because "[t]here was only one transfer of money and property," whereas here multiple acts might support a finding of guilt. Nor Woods found it "unnecessary to determine under what circumstances the taking of different property from the same person at different times may constitute one or more thefts," because "both the [1946 Ford] and the money were taken at the same time as part of a single transaction whereby [the] defendant defrauded [the victim] of the purchase price of the 1949 Ford," so "there . . . was only one theft." (Nor Woods, supra, 37 Cal.2d at p. 586.) Thus, Nor Woods recognized that a unanimity instruction might be required where more than one type of property was stolen.
The evidence here does not fit the type of fact pattern on which Nor Woods declined to pass, however, because each count against Kuo involved the theft of particular property from a particular individual as part of a single transaction. (See, e.g., People v. Selivanov, supra, 5 Cal.App.5th at pp. 739-740, 752-753 [no unanimity instruction required where defendants convicted of single count of embezzlement based on fraudulent credit-card charges made over period of several years]; People v. McLemore (1994) 27 Cal.App.4th 601, 604-606 [same where defendant could have stolen dress from store either by misrepresenting that his mother previously bought it or by taking it from the store without paying].) Although we acknowledge that the point in time when a particular theft was complete might have varied depending on the method by which it was accomplished, Kuo was still accused of only one ultimate theft of particular property in each count. As a result, the trial court properly declined to give a unanimity instruction.
Kuo also claims that the trial court made a related error in responding to the jury's question about CALCRIM No. 1861. He argues that by affirming that the jury could rely on a theory of theft other than that specified in the instructions, the court "compounded the error from failing to give a unanimity instruction at the outset." Since it was proper to omit a unanimity instruction, this argument fails.
Kuo also argues that the trial court's response impermissibly "expanded the basis by which the jury could convict for each count beyond that which defense counsel understood at the time of closing argument." He relies on Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234, which held that the defendant's first degree murder conviction could not stand where the case was tried on a theory of premeditated murder but the prosecutor successfully requested an instruction on felony murder right before closing arguments. (Id. at pp. 1235-1236.) The Ninth Circuit Court of Appeals concluded that "the prosecutor 'ambushed' the defense with a new theory of culpability after the evidence was already in, after both sides had rested, and after the jury instructions were settled," which allowed "the jury to convict on a theory that was neither subject to adversarial testing, nor defined in advance of the proceeding." (Id. at p. 1237.) By not receiving sufficient notice of the felony-murder theory and thereby having no opportunity to defend against it, the defendant was denied a fair trial. (Ibid.)
The circumstances here are not analogous to those in Sheppard. The theories of embezzlement and theft by false pretenses were presented to the jury, and both the prosecution and the defense focused on the same theory as to each count. Thus, the defense was not at an unfair disadvantage compared to the prosecution. In any case, Kuo does not identify any additional evidence he might have presented had he understood that he could be convicted of each count under either theory. Indeed, he must have understood this was true, as during the conference on jury instructions he affirmatively indicated he did not object to CALCRIM No. 1861. He does not explain why, if that instruction itself was appropriate, the court's response that merely confirmed the instruction's meaning was objectionable. His claim fails.
C. The Trial Court Did Not Err in Its Determinations Involving Jessica C.'s Status as an Accomplice.
Finally, Kuo claims that his convictions must be reversed because the trial court failed to give CALCRIM No. 334 on accomplice testimony. In a related argument, he also challenges the court's ruling precluding the defense from arguing that Jessica C. had an incentive to help the prosecution to avoid criminal liability herself. Neither contention is persuasive.
1. Additional facts
Kuo did not request a jury instruction on accomplice testimony. But during closing argument, his trial counsel addressed Jessica C.'s liability for the charged crimes as follows:
"Jessica [C.] Nobody is calling her a liar. . . . Roger [Kuo] never said that Jessica was a liar, Roger never said that Jessica was a terrible employee. But think about it from her point of view. She's testifying as a prosecution witness. There's no evidence that she was offered immunity for this case. . . .
"Look at this jury instruction, CALCRIM [No.] 451, liability of corporate officers and agents, which is what Jessica is. She's a corporate officer or agent. In order to prove grand theft, the People must prove that defendant either personally committed or was a direct participant in the crime charged. Jessica can be charged with everything that Roger is being charged with right now because she's a direct participant."
The prosecutor immediately objected and moved to strike, and the trial court granted the motion. Kuo's trial counsel continued,
"Everything [Jessica C.] said on the stand is to benefit her because she's trying to cover herself. She was the main accountant. She did exactly what Roger did in the business. She made phone calls, she made sales. She was autonomous when Roger was away. She knew exactly how the business was run.
"And don't be fooled by [the prosecutor's] characterization of her crime. She wasn't crying [on the stand] about the morality. My memory is that she was crying about those phone calls that she got in the morning that she hated. She was an [integral] part of this business. And she's only testifying for the prosecution so that she wouldn't be next."
The prosecutor again objected and moved to strike, and the trial court again granted the motion. Kuo's trial counsel then stated, "[Jessica C. is] here to testify to benefit herself so that she wouldn't be in trouble," and the prosecutor successfully moved to strike for the final time. Defense counsel concluded, "Of course she's not going to get up there and say yeah, . . . I was responsible for all of this, I was responsible for all the accounts payable[] and receivable[] as the bookkeeper of The Finest Watches. She's not going to say that."
2. Discussion
Under section 1111, "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." If there is sufficient evidence that a witness who gives testimony implicating the defendant was an accomplice, the trial court has a duty to instruct sua sponte on the evaluation of accomplice testimony. (People v. Richardson (2008) 43 Cal.4th 959, 1024.) We review claims of instructional error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.)
" 'An accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant' (§ 1111) and does not include an accessory." (People v. Boyer (2006) 38 Cal.4th 412, 466-467.) To be an accomplice, a witness must have "acted 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' " (People v. Gomez (2018) 6 Cal.5th 243, 279.) In other words, "[p]roviding assistance without sharing the perpetrator's purpose and intent is insufficient to establish that a person is an accomplice." (People v. Carrington (2009) 47 Cal.4th 145, 191.)
In his opening brief, Kuo discusses the law governing accomplice instructions at length, including specific cases holding such instructions were required. He neglects to discuss why substantial evidence required CALCRIM No. 334 here, however, making only the cursory claim that his own "testimony, coupled with other evidence pointing to [Jessica C.'s] involvement in the financial transactions underlying the charges, 'was sufficient to warrant a conclusion by the jury that [Jessica C.] was liable to prosecution' for the same charges as [he]."
In response, the Attorney General argues that "no complaining witness said that [he or she] had given money or property to [Kuo] or The Finest Watches on the basis of any representation by [Jessica C.]" and that Jessica C. "was a mere employee." Kuo then spends eight pages of his reply brief detailing Jessica C.'s involvement in each transaction and the business more generally. "It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of unfairness to the other party." (People v. Tully (2012) 54 Cal.4th 952, 1075.) We thus decline to discuss Kuo's contentions in detail.
Broadly speaking, we agree with Kuo that there was plenty of evidence that Jessica C. performed acts that aided and abetted his commission of the crimes. We also agree that Jessica C.'s status as an employee does not necessarily shield her from liability as an accomplice. (See, e.g., People v. Scofield (1971) 17 Cal.App.3d 1018, 1022-1023, 1026-1027 [employees of doctor who helped him submit fraudulent insurance claims were accomplices].) But the record lacks substantial evidence that Jessica C. acted with the requisite intent. As noted above, embezzlement and theft by false pretenses require an intent to defraud, and aiding and abetting liability requires both knowledge of the perpetrator's intent and an intent to encourage commission of the crime. While Jessica C. knew Kuo was taking money and property from customers and using it to pay his business and personal expenses, there was insufficient evidence that she wished to encourage him to commit theft. Kuo points to the fact that Jessica C. issued her own paychecks to suggest she "financially benefited from diverting money to the business instead of purchasing . . . watches," but we cannot agree that her handling of routine expenses permits the inference that she wished to help Kuo defraud customers. The trial court had no duty to give CALCRIM No. 334 sua sponte.
In a related claim, Kuo contends that the trial court violated his constitutional rights by striking his arguments in closing that Jessica C. had an incentive to lie so she would not be criminally charged. The right to effective assistance of counsel " 'ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process.' " (People v. Bonin (1988) 46 Cal.3d 659, 694, quoting Herring v. New York (1975) 422 U.S. 853, 858.) The right "encompasses the right to have counsel present closing argument." (Bonin, at p. 694.) But it does not require "that closing arguments in a criminal case must be uncontrolled or even unrestrained," and trial courts have "great latitude in controlling the duration and limiting the scope of closing summations." (Herring, at p. 862.) So long as "the defense's opportunity to participate was not significantly limited," the right to counsel is not infringed. (Bonin, at p. 695; see People v. Gurule (2002) 28 Cal.4th 557, 649.)
Kuo fails to demonstrate that the striking of the arguments at issue sufficiently limited the defense's ability to present closing argument. The main case on which he relies, Olden v. Kentucky (1988) 488 U.S. 227, did not involve the right to present closing argument. In that case, the Supreme Court held that the trial court's refusal to allow the defense to impeach the testimony of a victim of an alleged sexual assault with evidence that she and the defendant were having an affair violated the defendant's rights to confrontation and cross-examination. (Id. at pp. 228, 230, 233.)
We agree with Kuo that Olden supports the general proposition that "[e]vidence relevant to a prosecution witness's motive to falsely accuse a defendant out of self-interest is . . . extremely important and manifestly admissible to challenge the complaining witness's credibility." We do not agree, however, that this case is akin to Olden because "the defense was precluded from presenting and arguing the strongest available impeaching evidence . . . and was relegated to a generic argument that [Jessica C.] was testifying 'to benefit her[self]' in some unspecified manner." The challenged rulings barred only arguments about Jessica C.'s credibility that involved her criminal liability, limiting neither the admission of crucial impeachment evidence nor the opportunity to cross-examine her.
Kuo also cites Conde v. Henry (9th Cir. 1999) 198 F.3d 734, in which the Ninth Circuit Court of Appeals held that the trial court violated the defendant's "right to counsel by precluding his attorney from arguing his theory of the defense in closing arguments, namely that the prosecution failed to prove a robbery or an intent to rob," an error that "was compounded by the prosecutor's closing argument, which contended that [the defendant] did commit a robbery and therefore he did intend to rob." (Id. at p. 739.) Here, in contrast, the trial court struck a narrow part of the defense's arguments, and the defense was not barred from questioning Jessica C.'s credibility and urging the jury to accept Kuo's story. In short, the court's limited rulings did not violate Kuo's constitutional rights.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Banke, J. /s/_________
Sanchez, J.