Opinion
D074830
04-22-2020
THE PEOPLE, Plaintiff and Respondent, v. CARLOS H. MANJARREZ, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Daniel Rogers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD261283) APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed and remanded with directions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Daniel Rogers, Christopher Beesley and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
From about 2008 through 2015, Matthew Sam Mazur, president and chairperson of U.S. Medical Instruments (USMI), often in the presence of Carlos H. Manjarrez, USMI's vice-president and product design engineer, misrepresented to many individuals that USMI was a profitable, high net worth company that manufactured and successfully sold a patented, retractable hypodermic syringe called the SafeSnap syringe and would soon be acquired by a large pharmaceutical or medical instruments company. In fact, USMI did not manufacture or sell any finished products during that period and its 17-year patent for the SafeSnap syringe expired in 2012. Based on those and other misrepresentations, Mazur and Manjarrez persuaded many individuals to invest money in USMI.
Following a jury trial, Manjarrez was convicted of 30 offenses, including 13 counts of securities fraud, nine counts of grand theft, two counts of theft from an elder adult, one count of conspiracy to commit grand theft, and five counts of failing to file a tax return. The jury also found true certain related enhancement allegations. On appeal, Manjarrez contends: (1) there is insufficient evidence to support his count 7 conviction for theft from an elder adult; (2) there is insufficient evidence to support his count 6 conviction for securities fraud; (3) his five-year aggravated white-collar crime enhancement (Pen. Code, § 186.11, subd. (a)(2) ) must be stricken because the count to which it was attached in the third amended information (i.e., count 46) was dismissed by the court and the enhancement was not adequately pled regarding any other counts; and (4) the amended abstract of judgment must be modified to reflect the correct amounts of victim restitution ordered by the court. As we explain post, we agree with Manjarrez only on his last contention and therefore affirm his convictions on counts 6 and 7, modify the amended abstract of judgment, and remand with directions that the court clerk file a second amended abstract of judgment.
Mazur and Manjarrez were jointly tried, but separately sentenced on their respective convictions. Because they filed separate appeals, we address only Manjarrez's appeal in this opinion.
All statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
For brevity, we focus our discussion on those facts that are relevant to the convictions and enhancement that Manjarrez challenges on appeal.
USMI was incorporated in 1991. In 1995, it obtained a 17-year patent on the SafeSnap retractable syringe, which Mazur claimed prevents accidental transmission of blood-borne pathogens. After 2001, USMI did not earn any net income. From 2006 through 2014, USMI did not manufacture or sell any finished products. From 2008 through 2011, USMI reported annual net losses on its tax returns ranging from about $1.8 million to almost $3.5 million.
Mazur and Manjarrez persuaded people to invest money in USMI based on false representations that it was a successful and profitable medical device company and that they would obtain a substantial return on their investments on its purported imminent sale to a reputable pharmaceutical or medical instrument company. To aid in their scheme, Mazur and Manjarrez obtained estimates of USMI's value from certain financial institutions, which valuations were based on false information provided by Mazur and Manjarrez.
Counts 5 through 7 (Victim Donald). In 2012, Helen Peters (Helen) and Mazur were acquaintances who reconnected at their San Diego high school reunion. Before returning to Chicago, Helen went to Mazur's "glamorous" Mount Soledad home, which he falsely stated he owned. Mazur told her that he owned USMI, which was worth billions of dollars and from which he had made millions of dollars. He claimed USMI had two manufacturing plants, its SafeSnap syringe was used worldwide, and top pharmaceutical companies were interested in buying USMI.
Two months later, Mazur saw Helen in Chicago while he purportedly was there meeting with pharmaceutical companies that were interested in buying USMI. Mazur described to Helen the SafeSnap syringe, which sounded fantastic to her based on its safety features and cost savings to hospitals and clinics. Because of his representations regarding USMI's success and his La Jolla home, Helen believed Mazur was a knowledgeable financial person.
The following month, Helen returned to San Diego to visit her father, Donald Peters (Donald), who was 95 years old and legally blind. Donald lived independently in Oceanside, but was assisted several days a week by his neighbor, Melanie. Mazur picked up Helen from the airport, drove her to Donald's Oceanside home, and met Donald. While at Donald's home, Mazur claimed to be a "tax guru" and offered to help Donald with his taxes and place all of Donald's tax information onto a computer disc. During Helen's visit that month, Mazur visited her and Donald a couple of times. During one visit, Mazur brought Manjarrez along, introducing him as USMI's vice-president. During another visit, Mazur claimed to know a lot about trading stocks and offered to help Donald with his trades.
After Helen returned to Chicago, she and Mazur communicated by text messages and phone calls. Mazur told her he had been visiting Donald, given him small gifts, and told him he would take him golfing. Mazur told Helen that he added himself as a signatory to Donald's brokerage account so that he could make trades for Donald. Mazur also told her that he talked Donald into liquidating his assets so he could give Helen and her half-siblings early inheritances. Mazur told her that she would receive almost $1 million, which he wired into her account by the end of November 2012.
In December 2012, Mazur told Helen that in order to save taxes he had talked Donald into changing his trust by forming a new trust and limited partnership between Donald and Helen, which would own his Oceanside home and securities. The equity in Donald's home was about $600,000 and his stocks and bonds were worth more than $2 million. Helen signed a quitclaim deed that Mazur told her was necessary to transfer Donald's home to the new trust/partnership.
In June 2013, Mazur invited Donald and Melanie to lunch at a La Jolla restaurant. Melanie drove Donald to the restaurant and saw Mazur and Manjarrez standing outside the restaurant. After they were all seated at a table, Donald stated he was cold and asked Melanie to return to the car and get his sweater. During the time Melanie was away from the table, Mazur and Manjarrez had Donald sign three financial documents. When Melanie approached, she saw Mazur whisk away the paperwork and saw Donald holding a pen. Suspicious, Melanie requested copies of the documents that Donald had signed. After lunch, she and Donald went to USMI's office to get copies of the documents that Donald had signed. While Mazur appeared to work on getting the copies, he "droned on and on" about USMI's vitamins and injectables. Meanwhile, Manjarrez opened a computer to USMI's website. Eventually, she and Donald left the office without copies of the documents. Unbeknownst to Donald and Melanie, the documents that Donald signed at the lunch consisted of an agreement making Mazur a general partner in the new trust/partnership, a USMI common stock purchase agreement, and an authorization allowing Mazur access to Donald's Scottrade brokerage funds.
On arriving at Donald's home, Melanie and Donald discussed the fact that he had signed documents without reading them. Helen called Mazur and asked him what documents Donald had signed. Mazur replied that the documents were related to Donald's taxes. When she asked for copies of the documents, Mazur stated he would drop off copies at Donald's home, but he did not subsequently do so.
A few days after the June 2013 lunch at which Donald signed the three documents, Mazur went to Donald's Scottrade brokerage office, presented Donald's signed stock trade authorization, and requested that $500,000 be transferred from Donald's brokerage account to USMI's bank account. When Scottrade's office manager called Donald about Mazur's requested transfer, Donald replied, "I don't I don't know what you're talking about." Mazur then took the phone from the manager and told Donald that the brokerage office needed his driver's license. Mazur told Donald that he would pick him up and drive him to the brokerage office. Mazur and Manjarrez took Donald to the brokerage office where he presented his driver's license to the manager, who then executed Mazur's requested $500,000 wire transfer from Donald's brokerage account to USMI's bank account.
Manjarrez delivered copies of the three documents to Donald about a month after the June lunch. When Melanie read the documents to Donald, he became upset. Donald stated the documents were not what he had agreed to and asked her to contact adult protective services and the police. In late August 2013, a police report was filed and Donald informed police that he was legally blind.
Melanie sent copies of the documents to Helen, who was shocked when she learned Mazur was a partner in the new trust/partnership and had trading authority. Mazur did not return Helen's phone calls. In September 2013, Helen confronted Mazur at his office. Mazur was angry that Donald had reported him to adult protective services and threatened to ruin Helen and her family.
Third Amended Information. Following an investigation regarding Donald and other potential victims, the prosecution filed a third amended information charging Mazur and Manjarrez with multiple counts of securities fraud, grand theft, and other financial offenses. It charged Manjarrez with 51 counts committed against 16 victims. At trial, the jury found Mazur guilty on 30 counts and found true related enhancement allegations, as follows: (1) one count of conspiracy to commit grand theft (§§ 182, subd. (a)(1), 487) with an enhancement of victim losses in excess of $200,000 (§ 12022.6, subds. (a)(2), (b)) (count 1); (2) four counts of grand theft (§ 487, subd. (a)) (counts 8, 12, 14, & 34); (3) three counts of grand theft (§ 487, subd. (a)) with enhancements of victim losses in excess of $65,000 each (§ 12022.6, subd. (a)(1)) (counts 2, 10, & 27); (4) two counts of grand theft (§ 487, subd. (a)) with enhancements of victim losses in excess of $200,000 each (§ 12022.6, subd. (a)(2)) (counts 5 & 21); (5) two counts of theft from an elder adult (§ 368, subd. (d)) with one enhancement of a victim losses in excess of $200,000 (§ 12022.6, subd. (a)(2)) and one enhancement of a victim losses in excess of $65,000 (§ 12022.6, subds. (a)(1), (b)) (counts 7 & 33); (6) six counts of securities fraud (Corp. Code, §§ 25401, 25540, subd. (b)) (counts 9, 13, 15, 35, 38, & 43); (7) three counts of securities fraud (Corp. Code, §§ 25401, 25540, subd. (b)) with enhancements of victim losses in excess of $200,000 each (§ 12022.6, subd. (a)(2)) (counts 6, 22, & 26); (8) four counts of securities fraud (Corp. Code, §§ 25401, 25540, subd. (b)) with enhancements of victim losses in excess of $65,000 each (§ 12022.6, subd. (a)(1)) (counts 3, 11, 24, & 41); (9) five counts of failing to file a tax return with intent to evade a tax (Rev. & Tax. Code, § 19706) (counts 52, 53, 54, 55, & 56); and (10) one aggravated white-collar crime enhancement with victim losses in excess of $500,000 (§ 186.11, subd. (a)(2)). The trial court subsequently found true an on-bail enhancement allegation related to one of the securities fraud counts (§ 12022.1, subd. (b)) (count 43).
The court sentenced Manjarrez to a total term of 21 years eight months and ordered him to pay over $2 million in victim restitution. Manjarrez timely filed a notice of appeal.
DISCUSSION
I
Substantial Evidence to Support Manjarrez's Count 7 Conviction
Manjarrez contends there is insufficient evidence to support his count 7 conviction for theft from an elder adult. In particular, Manjarrez argues that the evidence does not show he made any false pretense or representation to Donald or aided and abetted, or conspired with, Mazur in committing theft by false pretense or embezzlement. As explained post, we conclude there is substantial evidence to support Manjarrez's count 7 conviction based on the theory that he aided and abetted Mazur's theft from Donald by false pretense.
Manjarrez also argues there is insufficient evidence to support his count 5 conviction for grand theft, but notes that conviction was dismissed by the court as a lesser included offense of his count 7 conviction. Because Manjarrez does not appeal his count 5 conviction, we restrict our discussion to his count 7 conviction.
A
At trial, the prosecution relied on the theories of false pretense and embezzlement in support of its grand theft counts. The trial court instructed with CALCRIM No. 1804 on the false pretense theory of theft, stating:
"To prove a defendant is guilty of theft as a perpetrator by the theory of theft by false pretense, the People must prove that:
"1. The defendant knowingly and intentionally deceived a property owner by false or fraudulent representation or pretense; AND
"2. The defendant did so intending to persuade the owner to let the defendant take possession and ownership of the property; AND
"3. The owner let the defendant take possession and ownership of the property because the owner relied on the representation or pretense. [¶] . . . [¶]
"A false pretense is any act, word, symbol, or token the purpose of which is to deceive.A false pretense may be either express or implied from words or conduct. (People v. Whight (1995) 36 Cal.App.4th 1143, 1151.) However, a false pretense that is not in writing must be corroborated. (People v. Gentry (1991) 234 Cal.App.3d 131, 138.)
"Someone makes a false pretense if, intending to deceive, he does one or more of the following:
"1. Gives information he knows is false; [¶] OR
"2. Makes a misrepresentation recklessly without information that justifies a reasonable belief in its truth; [¶] OR
"3. Does not give information when he has an obligation to do so; [¶] OR
"4. Makes a promise not intending to do what he promises. [¶] . . . [¶]
"An owner relies on false pretense if the falsehood is an important part of the reason the owner decides to give up the property. The false pretense must be an important factor, but it does not have to be the only factor the owner considers in making the decision. If the owner gives up the property some time after the pretense is made, the owner must do so because he or she relies on the pretense."
The trial court instructed with CALCRIM No. 1806 on the embezzlement theory of theft, stating:
"To prove a defendant is guilty of theft as a perpetrator by the theory of theft by embezzlement, the People must prove that:
"1. An owner entrusted his or her property to the defendant; [¶] AND
"2. The owner did so because he or she trusted the defendant; [¶] AND
"3. The defendant fraudulently converted or used that property for his own benefit; [¶] ANDEmbezzlement involves the taking of personal property from its owner without the owner's consent with the intent to deprive the owner permanently of the property. (MMM Holdings, Inc. v. Reich (2018) 21 Cal.App.5th 167, 185.)
"4. When the defendant converted or used the property, he intended to deprive the owner [of] it.
"A person acts fraudulently when he takes undue advantage of another person or causes a loss to that person by breaching a duty, trust or confidence. . . ."
The court also instructed with CALCRIM No. 1861, stating in part: "You may not find a defendant guilty of theft unless all of you agree that the People have proved that defendant committed theft under at least one theory [i.e., either theft by false pretense or theft by embezzlement]. But all of you do not have to agree on the same theory."
The court instructed with CALCRIM No. 400 regarding criminal liability based on aiding and abetting, stating: "A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted the perpetrator, who directly committed the crime." It further instructed with CALCRIM No. 401 on aiding and abetting, stating:
"To prove that a defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that:
"1. The perpetrator committed the crime;
"2. The defendant knew that the perpetrator intended to commit the crime;
"3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; AND
"4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime.
"Someone aids and abets a crime if he knows of the perpetrator's unlawful purpose and he specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of the crime.
"If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor.
"If you conclude a defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor."
The court also instructed with CALCRIM Nos. 416 and 417 on conspiracy as a theory of criminal liability, stating, inter alia, that "[a] member of a conspiracy is criminally responsible for the acts or statements of any member of the conspiracy done to help accomplish the goal of the conspiracy."
In addition to the instructions on theft, described ante, the court instructed with CALCRIM No. 1807 on the offense of theft from an elder adult of an amount greater than $950, stating:
"The defendant is charged in Counts 4, 7, 33, 36, 39, and 44 with Theft from an Elder Adult, in violation of Penal Code section 368[, subdivision] (d).
"To prove that the defendant is guilty of [theft from an elder adult] as a perpetrator, the People must prove that:
"1. The defendant committed theft; [¶] AND
"2. The property taken was owned by an elder adult; [¶] AND
"3. The property, goods, or services obtained was worth more than $950; [¶] AND
"4. The defendant knew or reasonably should have known that the owner of the property was an elder adult.
"To decide whether the defendant committed theft, please refer to the separate instructions that I have given you on that crime and theories of liability. In this case, the prosecution's theory of theft for these charges is theft [by] false pretenses and theft by embezzlement.
"An elder is someone who is at least 65 years old."
Section 368, subdivision (d), provides: "A person who is not a caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or fraud, . . . and who knows or reasonably should know the victim is an elder or a dependent adult, is punishable . . . ." If the value of the property taken from an elder adult exceeds $950, the defendant may be punished by a fine of up to $10,000 or by imprisonment for two, three, or four years, or by both that fine and imprisonment. (§ 368, subd. (d)(1).) Alternatively, the court may punish the defendant with a fine of up to $2,500 or by imprisonment in a county jail for up to one year, or both that fine and jail imprisonment. (§ 368, subd. (d)(1).) Manjarrez does not dispute that the evidence showed he and Mazur knew, or should have known, that Donald was at least 65 years old at the time of the alleged theft against him. In fact, he was 95 years old at the time.
The jury found Manjarrez guilty of, inter alia, grand theft against Donald under count 5. The jury also found Manjarrez guilty of theft from an elder adult under count 7, which count was based on the underlying theft committed against Donald alleged in count 5. The court dismissed his count 5 conviction as a lesser included offense of his count 7 conviction. The court imposed a sentence of three years for his count 7 conviction and struck the related section 12022.6, subdivision (a)(2) allegation. It then stayed execution of that three-year sentence pursuant to section 654.
B
When a conviction is challenged on appeal for insufficient evidence to support it, we apply the substantial evidence standard of review. (People v. Vines (2011) 51 Cal.4th 830, 869; People v. Johnson (1980) 26 Cal.3d 557, 578.) In so doing, we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence to support the conviction. (Vines, at p. 869; Johnson, at p. 578.) Substantial evidence is evidence that is reasonable, credible, and of solid value such that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Cochran (2002) 103 Cal.App.4th 8, 13.)
C
Contrary to Manjarrez's assertion, we conclude there is substantial evidence to support his count 7 conviction of theft from an elder adult (i.e., Donald). As discussed ante, Mazur falsely told Helen, Donald's daughter, that he owned his Mount Soledad home, that USMI was worth billions of dollars, that USMI had two manufacturing plants, that its SafeSnap syringe was used worldwide, and that top pharmaceutical companies were interested in buying USMI. Mazur's false representations led Helen to believe he was a knowledgeable financial person. After Helen introduced Mazur to Donald, Mazur claimed to be a "tax guru" and offered to help Donald with his taxes and place all of Donald's tax information onto a computer disc. Mazur subsequently told Donald he knew a lot about trading stocks and offered to help Donald with his trades. During one visit to Donald's home, Mazur brought Manjarrez along and introduced him to Donald as USMI's vice-president. Mazur befriended Donald by frequently visiting him, giving him small gifts, and telling him he would take him golfing. Mazur added himself as a signatory to Donald's brokerage account so that he could make trades for Donald. Mazur persuaded Donald to change his trust by forming a new trust and limited partnership between Donald and Helen, which would own his Oceanside home and securities worth about $2 million.
When Donald and Melanie arrived at the June 2013 lunch meeting at a La Jolla restaurant, Mazur and Manjarrez were standing outside. While Melanie was away from the table, Mazur and Manjarrez had Donald, who was 95 years old and legally blind, sign three financial documents without reading them. Donald and Melanie did not know the documents that he signed consisted of an agreement making Mazur a general partner in the new trust/partnership, a USMI common stock purchase agreement, and an authorization allowing Mazur access to Donald's Scottrade brokerage funds. Mazur repeatedly resisted requests by Melanie and Donald for copies of the documents that Donald had signed at the restaurant. After the lunch, Donald and Melanie went to USMI's office to get copies of the signed documents. While Mazur "droned on and on" about USMI, Manjarrez opened a computer to USMI's website. Donald and Melanie eventually left without copies of the documents.
A few days after that lunch, Mazur went to Donald's Scottrade brokerage office, presented his stock trade authorization, and requested that $500,000 be transferred from Donald's account to USMI's bank account. When the office manager called Donald about Mazur's requested transfer, Donald replied, "I don't I don't know what you're talking about." Mazur then intervened, took the phone from the manager, and told Donald that the brokerage office needed his driver's license. Mazur and Manjarrez then picked up Donald and drove him to the brokerage office where Donald presented his driver's license to the manager. The manager then executed Mazur's requested $500,000 wire transfer from Donald's brokerage account to USMI's bank account. About a month later, Manjarrez delivered copies of the signed documents to Donald. When Melanie read the documents to Donald, he became upset because the documents were not what he had agreed to.
Based on the above evidence, we conclude that there is substantial evidence to support Manjarrez's count 7 conviction for theft from an elder adult based on the theory of theft by false pretense. In particular, the jury reasonably could infer that Helen repeated to Donald the false statements Mazur made to her regarding his wealth and USMI's financial success and prospects. Furthermore, the jury reasonably could infer that Mazur knowingly and intentionally deceived Donald by falsely telling him that he was a tax guru and, in effect, a stock trading expert and by persuading him to change his trust by forming a new trust and limited partnership between Donald and Helen for the false reason that it would save taxes. Importantly, the jury also reasonably could infer that Mazur knowingly and intentionally deceived Donald, who was legally blind, to sign documents at the lunch meeting in Melanie's absence that Donald had not agreed to and that instead actually gave Mazur the authority to, inter alia, access his Scottrade brokerage funds. Mazur thereafter used that authority to take $500,000 from Donald's brokerage account and transfer it to a USMI bank account. Based on the evidence, the jury reasonably could find that Mazur, as a direct perpetrator, made false representations and/or pretenses to Donald, knowing them to be false, with the intent to persuade Donald to let him take possession and ownership of Donald's property (i.e., his Scottrade brokerage funds) and that Donald let Mazur take possession and ownership of that property because he relied on Mazur's false representations and/or pretenses. Furthermore, the jury reasonably could find that Manjarrez aided and abetted Mazur's commission of theft from an elder adult. The evidence shows Manjarrez knew that USMI was not a successful business and "investors" in USMI stock would not get their money back. Based on Manjarrez's awareness of Mazur's previous crimes against, and misrepresentations to, other victims and his presence with Mazur and Donald at the lunch meeting, with Mazur and Donald at USMI's office after the lunch meeting, and with Mazur and Donald at the Scottrade brokerage office a few days later, the jury reasonably could infer Manjarrez knew that Mazur intended to commit that crime against Donald. In particular, the jury could also infer therefrom that Manjarrez knew that Mazur possessed the three documents that he (Mazur) intended to have Donald sign at the lunch meeting and that Mazur had arranged for a notary public to be present to acknowledge Donald's signatures thereon. The jury could also infer that, before or during Mazur's commission of the crime, Manjarrez specifically intended to, and did in fact, aid, facilitate, promote, encourage, or instigate Mazur's commission of the crime. The evidence supports a finding that Manjarrez was aware of, and in many cases participated in, Mazur's previous crimes against other victims and intended to aid and abet Mazur in committing the theft against Donald. In particular, the evidence supports findings that Manjarrez aided Mazur in getting Donald to sign the three documents, delaying giving copies of those documents to Donald, and ultimately transferring $500,000 from Donald's brokerage account to USMI's account and thereby completing the theft. The jury also reasonably could infer that Manjarrez's words and conduct described ante, including his presence at the lunch meeting, USMI's office after the lunch meeting, and at the brokerage office a few days later, did in fact aid and abet Mazur's commission of the theft against Donald. Accordingly, there is substantial evidence to support Manjarrez's count 7 conviction for theft from an elder adult based on the theory of theft by false pretense. To the extent Manjarrez argues otherwise and cites evidence and inferences therefrom that would have supported contrary findings by the jury, he misconstrues and/or misapplies the substantial evidence standard of review.
Because we affirm Manjarrez's count 7 conviction based on the reasoning ante, we need not, and do not, decide whether there is also substantial evidence to support that conviction on the alternative theories of theft by false pretense based on his direct perpetration of, or conspiracy in committing, that crime or theft by embezzlement.
D
We also reject Manjarrez's assertion that there is insufficient evidence to support his conviction on count 7 because the prosecution during trial requested instructions on additional theories of theft. In particular, the prosecution sought instructions on the alternative theories of theft by larceny and theft by trick. The prosecution explained that the theories of theft by false pretense and theft by embezzlement may not apply to the evidence presented at trial (i.e., that those theories "simply [don't] apply when [Donald] doesn't knowingly turn over the money and he doesn't rely on anything . . . or—there was not a false pretense"). The prosecution further stated: "I just don't believe [theft by false pretense] applies to the facts in this case as to [Donald]."
However, the trial court concluded the prosecution had presented sufficient evidence to support findings on the elements of theft by false pretense and, presumably, theft by embezzlement and denied the prosecution's request for instructions on additional theories of theft. The court thereafter instructed on the theories of theft by false pretense and theft by embezzlement for counts 5 and 7 and the jury found Manjarrez guilty on those counts. Contrary to Manjarrez's assertion, we conclude that the prosecution's doubt during trial about the most appropriate theory or theories for the count 5 and count 7 theft charges based on the evidence presented does not show there is insufficient evidence to support his conviction on count 7. The trial court properly concluded, as we concluded ante, that the record contained substantial evidence to support a guilty verdict on count 7. Furthermore, to the extent Manjarrez asserts that the prosecution's statements constitute an irrevocable "admission" that there is insufficient evidence to support those convictions, he does not cite, nor are we aware of, any authority to support that assertion. Accordingly, we conclude Manjarrez has not carried his burden on appeal to show there is insufficient evidence to support his conviction on count 7.
II
Substantial Evidence to Support Manjarrez's Count 6 Conviction
Manjarrez contends there is insufficient evidence to support his count 6 conviction for securities fraud committed against Donald. In so doing, he incorporates the arguments he made, as described ante, in contending there is insufficient evidence to support his count 7 conviction for theft from an elder adult.
Count 6 alleged that Manjarrez violated Corporations Code sections 25401 and 25540, subdivision (b). Corporations Code section 25401 provides that securities fraud can be committed by making "an untrue statement of a material fact" or omitting "to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading." (See People v. Simon (1995) 9 Cal.4th 493, 510.) A fact is material if there is a substantial likelihood that a reasonable investor would consider it important in reaching an investment decision under all the circumstances. (People v. Butler (2012) 212 Cal.App.4th 404, 421.) The court instructed the jury on the elements of count 6 offense.
Based on our review of the record, we conclude there is substantial evidence to support Manjarrez's count 6 conviction for securities fraud. In particular, as discussed ante, the jury reasonably could infer that Manjarrez was present at the lunch when Mazur falsely represented to, or omitted to inform, Donald about the true nature of the three documents he presented to Donald for his signature and acknowledgement by the notary public. The jury could infer that Manjarrez knew those representations were false or omitted material information necessary to make Mazur's statements not misleading. One of the three documents Donald signed was a USMI stock purchase agreement. The jury reasonably could find that a stock purchase agreement is an investment contract and therefore a "security" within the meaning of Corporations Code section 25019. (Cf. People v. Figueroa (1986) 41 Cal.3d 714, 736, 740 [determination of whether an instrument is a "security" is for jury to decide in each case].) Based on the evidence discussed in part I, ante, the jury reasonably could find that Manjarrez aided and abetted Mazur in procuring Donald's signature on the USMI stock purchase agreement (i.e., a security) based on those false representations or omissions of material fact. Based, in part, on our discussion in part I, ante, we conclude there is substantial evidence to support Manjarrez's count 6 conviction for securities fraud committed against Donald based on an aiding and abetting theory. To the extent Manjarrez argues otherwise and cites evidence and inferences therefrom that would have supported a contrary finding by the jury, he misconstrues and/or misapplies the substantial evidence standard of review.
III
Aggravated White Collar Crime Enhancement
Manjarrez contends that his five-year aggravated white collar crime enhancement (§ 186.11, subd. (a)(2)) must be stricken because the count to which it was attached in the third amended information (i.e., count 46) was dismissed by the court and was not adequately pled regarding any other counts.
A
Section 186.11, subdivision (a)(1), sets forth the "aggravated white collar crime enhancement," providing: "Any person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than one hundred thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of which he or she has been convicted, by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3). . . . The aggravated while collar crime enhancement shall only be imposed once in a single criminal proceeding. . . ."
Section 186.11, subdivision (a)(1), further provides: "For purposes of this section, 'pattern of related felony conduct' means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events. For purposes of this section, 'two or more related felonies' means felonies committed against two or more separate victims, or against the same victim on two or more separate occasions." If the taking or victim loss exceeds $500,000, the additional term of punishment for an aggravated white collar crime enhancement is two, three, or five years in prison. (§ 186.11, subd. (a)(2).)
The purpose of the aggravated white collar crime enhancement is to provide for greater punishment for those criminals who engage in a pattern of fraudulent activity that results in a larger amount of accumulated takings or victim losses. (People v. Martinez (2017) 10 Cal.App.5th 686, 725; People v. Williams (2004) 118 Cal.App.4th 735, 747.) Section 186.11, subdivision (b)(1), provides: "The additional prison term and penalties provided for in subdivisions (a), (c), and (d) shall not be imposed unless the facts set forth in subdivision (a) are charged in the accusatory pleading and admitted or found to be true by the trier of fact."
B
Following counts 1 through 46, the third amended information alleged:
"AGGRAVATED WHITE COLLAR ENHANCEMENT: And it is further alleged that [Manjarrez], committed two or more related felonies, a material element of which is fraud and embezzlement, which involved a pattern of related felony conduct which involved the taking and resulted in the loss by another person and entity of more than five hundred thousand dollars ($500,000), within the meaning of PENAL CODE SECTION 186.11[, subdivision] (a)(2)."At trial, the court instructed the jury on the section 186.11, subdivision (a)(2), allegation with a modified version of CALCRIM No. 3221, as follows:
"If you find one or both defendants guilty of two or more counts of fraud in the offer or sale of a security [i.e., securities fraud] as charged in Counts 3, 6, 9, 11, 13, 15, 17, 18, 20, 22, 24, 26, 28, 29 to 32, 35, 38, 41, 43, and 45, you must then decide whether the People have proved the additional allegation that the defendant engaged in a pattern of related felony conduct that involved the taking of, or resulted in the loss by another person of[,] more than $500,000.
"To prove this allegation, the People must prove that: One, the defendant committed two or more related felonies, specifically securities fraud; and, two, fraud or embezzlement was a material element of at least two related felonies committed by the defendant; and, three, the related felonies involved a pattern of related felony conduct; and, four, the pattern of related felony conduct involved the taking of[,] or resulted in the loss by another person of[,] more than $500,000.
"A pattern of related felony conduct means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events.
"Related felonies are felonies committed against two or more separate victims, or against the same victim on two or more separate occasions.In a special verdict, the jury found true the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation.
"Fraud is a material element of securities fraud.
"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that this allegation has not been proved."
C
Manjarrez primarily argues that his five-year aggravated white collar crime enhancement (§ 186.11, subd. (a)(2)) must be stricken because the count to which it was attached in the third amended information (i.e., count 46) was dismissed by the court. Count 46 had charged Manjarrez with an act of securities fraud, alleging:
"On or about and between April 14, 2011 and March 19, 2015, [Mazur] and [Manjarrez] did willfully and unlawfully engage, directly and indirectly, in [an] act, practice, and course of business which operates and would operate as a fraud and deceit upon any person, in connection with the offer, purchase, and sale of any security in violation of CORPORATIONS CODE SECTION 25541."The section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation followed count 46 in the third amended information.
During trial, Mazur requested that the court dismiss count 46 pursuant to section 1181.1 or that it exercise its discretion to dismiss count 46 under section 1385. Before jury deliberations, the court dismissed count 46 pursuant to section 1385. In so doing, the court stated that its dismissal of count 46 "does not dismiss the aggravated white collar crime enhancement which is not attached to that count. It just follows it in the Information." After trial, the court denied Manjarrez's motion for new trial in which he argued that because the white collar crime enhancement was attached to count 46, that enhancement must be dismissed with count 46.
Based on our review of the record, we conclude that the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation was not attached to count 46 as Manjarrez argues, but simply followed it sequentially in the third amended information. First, enhancements alleged in the third amended information, other than the section 186.11, subdivision (a)(2), enhancement allegation, were expressly attached to certain counts. For example, in connection with count 43 for securities fraud alleged against Manjarrez, the third amended information stated: "And it is further alleged that the above felony offense was committed while [Manjarrez] was released from custody on bail . . . within the meaning of . . . SECTION 12022.1[, subdivision] (b)." In contrast, the section 186.11, subdivision (a)(2), enhancement allegation had no language expressly, or implicitly, connecting it to only count 46. Unlike the count 43 enhancement allegation, the section 186.11, subdivision (a)(2), allegation did not begin with the connecting phrase, "And it is further alleged that the above felony offense was committed while . . . ."
Second, the language of the section 186.11, subdivision (a)(2), enhancement allegation cannot reasonably be construed as applying to only one count (e.g., count 46). In particular, that allegation included the phrase, "it is further alleged that [Manjarrez] committed two or more related felonies." (Italics added.) Therefore, it is implicit, if not explicit, within any section 186.11, subdivision (a)(2), allegation that there be at least two underlying felony offenses to which that allegation is attached or related. Because count 46 alleged only one felony offense (i.e., Corp. Code, § 25541), it could not, by itself, provide the "two or more related felonies" required for the section 186.11, subdivision (a)(2), enhancement allegation. Therefore, it cannot reasonably be inferred that that enhancement allegation was attached solely to count 46, despite the fact that it followed count 46 sequentially in the third amended information. Rather, a reasonable interpretation of the third amended information is that the section 186.11, subdivision (a)(2), enhancement allegation followed count 46 because it was alleged to relate to two or more of the felony offenses charged in the counts preceding it (i.e., counts 1 through 46). Accordingly, contrary to Manjarrez's assertion, the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement was not dismissed together with count 46 when the trial court dismissed count 46.
To avoid any ambiguity in future accusatory pleadings, a better practice for the prosecution would be to expressly list those counts to which a section 186.11 enhancement allegation relates.
Contrary to Manjarrez's apparent assertion, the fact that the "charge summary" at the beginning of the third amended information erroneously listed the aggravated white collar crime enhancement adjacent to count 46 does not persuade us that that enhancement, which followed count 46 sequentially, related only to count 46 and not the other alleged fraud or embezzlement felonies preceding that allegation (i.e., counts 1 through 44 and 46 alleged against him).
The case Manjarrez primarily cites in support of his argument is factually and procedurally inapposite to this case and does not persuade us to reach a contrary conclusion. In People v. Nilsson (2015) 242 Cal.App.4th 1 (Nilsson), an information alleged, inter alia, two counts of grand theft and one count of offering a bribe to a public employee. (Id. at pp. 6, 14.) A section 186.11 enhancement was alleged regarding the two grand theft counts, but not the bribery count. (Id. at pp. 8, 14-15.) Although the jury found the defendant guilty on the two grand theft counts and found the related section 186.11 enhancement true, the jury further found that the two grand thefts were not separate and distinct offenses. (Id. at pp. 8, 15.) Therefore, the trial court struck one of the grant theft counts pursuant to People v. Bailey (1961) 55 Cal.2d 514. (Nilsson, at pp. 13, 15.) However, the court did not strike the related section 186.11 enhancement, finding the remaining grand theft conviction and bribery conviction constituted the related felonies for that enhancement. (Id. at p. 15.) On appeal, Nilsson struck the section 186.11 enhancement, concluding that the trial court erred because that enhancement was not alleged in connection with the bribery count, and the jury did not find that the bribery offense was one of the two related felonies required for that enhancement. (Id. at pp. 16-17.) Because in this case the jury found Manjarrez committed two or more related felonies (i.e., securities fraud counts) for which the aggravated white collar crime enhancement was alleged in the third amended information, Nilsson is both factually and procedurally inapposite to this case.
D
Manjarrez alternatively argues that the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement must be stricken because it was not properly pleaded and proven. We disagree.
"The primary function of [an accusatory] pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights." (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) Enhancements must be alleged in an accusatory pleading and either admitted by the defendant or found true by the trier of fact. (§ 1170.1, subd. (e).) In particular, section 186.11, subdivision (b)(1), provides that an aggravated white collar crime enhancement "shall not be imposed unless the facts set forth in subdivision (a) are charged in the accusatory pleading and admitted or found to be true by the trier of fact." In addition, a defendant has "a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his [or her] crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 747.)
Section 186.11, subdivision (a), as quoted ante, sets forth the elements for an aggravated white collar crime enhancement. Therefore, to impose that enhancement, an accusatory pleading must allege, inter alia, that the defendant committed two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct and result in takings or victim losses exceeding certain monetary amounts (i.e., exceeding either $100,000 or $500,000). (§ 186.11, subds. (a)(1), (2).) In this case, the third amended information properly pleaded the elements for an aggravated white collar crime enhancement, alleging that Manjarrez: "committed two or more related felonies, a material element of which is fraud and embezzlement, which involved a pattern of related felony conduct which involved the taking and resulted in the loss by another person and entity of more than ($500,000), within the meaning of . . . SECTION 186.11[, subdivision](a)(2)." Contrary to Manjarrez's assertion, the fact that the section 186.11 allegation did not expressly state which counts of the information that allegation related to, did not deprive him of fair notice. Rather, as discussed ante, the sequential placement of that allegation after count 46 supports a reasonable inference that it was alleged as to all counts preceding the allegation that involved fraud or embezzlement (i.e., 16 counts of grand theft, six counts of theft from an elder adult, 22 counts of securities fraud, and one count of conspiracy to commit grand theft as alleged against Manjarrez in counts 1 through 44 and 46). Therefore, the third amended information placed Manjarrez on notice that the section 186.11 enhancement was alleged as to those 45 counts (i.e., counts 1 through 44 and 46). To give Manjarrez fair notice of that enhancement allegation, it was not necessary that the information specify each and every count to which it related. (Cf. People v. Riva (2003) 112 Cal.App.4th 981, 1001 [§ 12022.53, subdivision (j), "only requires the facts necessary to sustain [a § 12022.53] enhancement be alleged in the information; it does not say where in the information those facts must be alleged or that they must be alleged in connection with a particular count in order to apply to that count"].) Manjarrez does not cite any case holding otherwise. Accordingly, the third amended information provided Manjarrez with fair notice of what was alleged against him (i.e., a § 186.11, subd. (a)(2), aggravated white collar crime enhancement as to counts 1 through 44 and 46) and that he needed to defend against that allegation.
Of course, as noted ante, it would be a better practice in the future for the prosecution to expressly list those counts to which a section 186.11 enhancement allegation relates.
As discussed ante, Nilsson, supra, 242 Cal.App.4th 1, cited by Manjarrez, is factually and procedurally inapposite to this case and does not persuade us to reach a contrary conclusion. In Nilsson, because the accusatory pleading specifically alleged the section 186.22 enhancement applied only to the two grand theft counts and not to the bribery count, the accusatory pleading did not put the defendant on notice that the allegation applied to the bribery count. (Id. at p. 17.)
Manjarrez also argues that the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement must be stricken because it was not properly proven. During trial, Mazur's counsel argued that alleged enhancement could only apply to the security fraud counts. The prosecutor agreed and requested that the court modify CALCRIM No. 3221 to reflect that limitation. The court agreed and subsequently instructed the jury that the aggravated white collar crime enhancement allegation related only to the securities fraud counts as charged in counts 3, 6, 9, 11, 13, 15, 17, 18, 20, 22, 24, 26, 28, 29 to 32, 35, 38, 41, 43, and 45. In its special verdict, the jury found true the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement allegation.
Specifically, the jury found: "AGGRAVATED WHITE COLLAR CRIME ENHANCEMENT: And we further find the allegation that [Manjarrez] committed two or more related felonies, a material element of which is fraud, which involved a pattern of related felony conduct which involved the taking and resulted in the loss by another person and entity of more than five hundred thousand dollars ($500,000), within the meaning of . . . section 186.11[, subdivision ](a)(2), to be true."
Contrary to Manjarrez's assertion, the jury's special verdict form was not inadequate because it did not expressly state the time frame for his pattern of related felony conduct or the related felonies to which it applied. First, section 186.11, subdivision (a), does not require any particular time frame to be proven for its enhancement allegation to be found true. Second, based on the third amended information and the court's modified CALCRIM No. 3221 instruction, it is nevertheless clear that the jury found Manjarrez's pattern of related felony conduct occurred during the time period that he committed the 13 counts of securities fraud of which he was found guilty (i.e., counts 3, 6, 9, 11, 13, 15, 22, 24, 26, 35, 38, 41, & 43) and that two or more of those felonies were related for purposes of the enhancement allegation. Accordingly, contrary to Manjarrez's assertion, the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement was properly proven and found to be true by the jury. (§ 186.11, subd. (b)(1).)
We likewise conclude the court's instruction with a modified version of CALCRIM No. 3221 was not incorrect because it did not expressly state the time frame for Manjarrez's pattern of related felony conduct or the related felonies to which the enhancement allegation applied.
E
Because we conclude above the section 186.11, subdivision (a)(2), aggravated white collar crime enhancement was properly pleaded and proven, we reject Manjarrez's apparent assertion that the five-year enhancement imposed by the court was unauthorized and must be stricken. As the People assert, the section 186.11, subdivision (a)(2), enhancement allegation was properly pleaded, the court properly instructed on it, and the jury properly found its elements were proven beyond a reasonable doubt. In imposing the five-year upper term five-year enhancement, the court noted the "great losses" suffered by Manjarrez's victims. Based on the record in this case, we conclude the five-year enhancement imposed by the court for the section 186.11, subdivision (a)(2), true finding was not an unauthorized sentence and was, instead, properly imposed.
IV
Modification of Amended Abstract of Judgment
Manjarrez contends, and the People concede, that the amended abstract of judgment must be modified to reflect the correct amounts of restitution ordered by the court. We agree.
At the August 31, 2018 sentencing hearing, the court ordered Manjarrez to pay restitution to 13 victims, for a total amount of $2,021,008. The court also ordered that the victim restitution it imposed was to be paid jointly and severally by Mazur and Manjarrez. The original abstract of judgment correctly reflected that the total amount of victim restitution was $2,021,008. However, the amended abstract of judgment subsequently, and incorrectly, stated the total amount of victim restitution was $3,182,008, apparently erroneously including victim restitution for victims Helen and Robert K. for counts Manjarrez was acquitted on and for which the court had not ordered Manjarrez to pay restitution.
A trial court's oral pronouncement of its judgment controls over its abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell) ["An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add or modify the judgment it purports to digest or summarize."] Because it is important that courts correct errors or omissions in abstracts of judgment, an appellate court may correct clerical errors in an abstract of judgment. (Id. at pp. 185-187; In re Candelario (1970) 3 Cal.3d 702, 705 (Candelario).)
Because the amended abstract of judgment contains the three errors described ante, we must correct those errors by modifying the amended abstract of judgment and directing the court clerk to file a second amended abstract of judgment reflecting those modifications. (Mitchell, supra, 26 Cal.4th at pp. 185-187; Candelario, supra, 3 Cal.3d at p. 705.)
DISPOSITION
The judgment is affirmed. The amended abstract of judgment is modified to: (1) delete the restitution ordered for victim Helen in the amount of $1 million and for victim Robert K. in the amount of $161,000; (2) reduce the total amount of victim restitution ordered from $3,182,000 to $2,021,008; and (3) reflect that the victim restitution ordered by the court against Manjarrez is to be paid jointly and severally by Mazur and Manjarrez. The matter is remanded with directions that the superior court clerk file a second amended abstract of judgment reflecting those modifications.
BENKE, Acting P. J. WE CONCUR: DATO, J. GUERRERO, J.