California Court of Appeal Jun 30, 2016 No. D066952Unpublished
Filed 6/30/16 P. v. Moore CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066952
Plaintiff and Respondent,
v. (Super. Ct. No. SCD236506)
TARA VIRGINIA MOORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F.
Fraser, Judge. Affirmed in part, reversed in part, and remanded for resentencing.
Steven M. Schneebaum, P.C., Steven M. Schneebaum and Arin Melissa Brenner;
The Law Offices of Nicholas J. Moore and Nicholas Moore for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Alastair J.
Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Tara Virginia Moore guilty of grand theft and embezzlement from
Berkley and Anderson (Berkley/Anderson counts); grand theft of military survivor
benefits from the Department of Defense (military benefits count); financial elder abuse
and grand theft from Dr. Dragica Markovich (Dr. Markovich) (Markovich counts); and
forgery of a brokerage account statement, all felonies. (Pen. Code, §§ 487, subd. (a),
508, 368, subd. (d), 470, subd. (d).)1 The jury returned true findings of aggregate loss on
the counts involving Anderson, military benefits, and Dr. Markovich (§ 12022.6, subd.
(a)(1)-(3)), and sustained the aggravated white collar criminal enhancement (§ 186.11,
subd. (a)(2)).2
On November 7, 2014, the trial court sentenced Moore to a total term of 15 years
eight months, as follows: count 1 (Berkley grand theft), eight months; count 2 (Berkley
embezzlement), two years, stayed; count 3 (Anderson grand theft), eight months, plus a
sentencing enhancement of eight months under section 12022.6, subd. (a)(2) (aggregate
loss); count 4 (Anderson embezzlement), two years, stayed under section 654, plus a two-
year enhancement for aggregate loss, also stayed; count 6 (grand theft of federal military
benefits), eight months plus a four-month enhancement for aggregate loss; count 7
(Markovich financial elder abuse), four years plus a three-year sentencing enhancement
1 Unless specified, further statutory references are to the Penal Code.
2 The jury acquitted Moore on a charge of defrauding the Department of Veterans Affairs. The jury was unable to reach a verdict on whether Berkley's aggregate losses exceeded $1.3 million and whether Moore forged a real estate purchase and sale agreement. In the interests of brevity, we do not discuss those charges except where relevant to the issues raised on appeal.
2
for aggregate loss; count 8 (Markovich grand theft), two years, stayed, plus a three-year
aggregate loss enhancement, also stayed; and count 10 (forgery), eight months. The trial
court ordered all sentences to run consecutively and imposed an additional consecutive
five-year term pursuant to the aggravated white collar criminal enhancement. The trial
court ordered Moore to pay restitution to her victims, and imposed various fines and fees.
Moore argues the trial court improperly permitted the unrelated offenses to be
consolidated for trial, which led the jury to believe she had a criminal disposition. She
contends the trial court further erred when it allowed the prosecution to present character
evidence, including evidence of uncharged crimes, thereby creating a substantial danger
of undue prejudice against her.
With respect to the Berkley/Anderson counts, Moore contends the trial court
violated her constitutional right to compulsory process when it denied her request to
admit a witness's conditional examination in evidence. She argues the prosecutor
committed misconduct by arresting that witness and facilitating his deportation to prevent
him from testifying at trial. Moore asserts the trial court erred when it did not exclude
documents seized as a result of a defective search warrant. She argues grand theft
(§ 487) and embezzlement (§ 508) are not separate offenses.
With respect to the allegation of grand theft of military survivor benefits, Moore
contends the state does not have jurisdiction to adjudicate theft of federal military
benefits. Alternatively, she argues the federal government is not a "person" under state
law, and therefore a charge of grand theft does not apply.
3
As to the Markovich counts, Moore argues the admission into evidence of the
videotaped conditional examinations of her former husband, Commander Bogoljub
(Bobby) Markovich (Cdr. Markovich), and his mother, Dr. Markovich, deprived her of
her Sixth Amendment right to confront the witnesses against her. Moore contends there
was not an adequate showing that either witness was unavailable to testify at trial, and
she did not have an adequate opportunity to cross-examine Dr. Markovich because her
conditional examination occurred prior to any discovery in the case. Moore asserts the
prosecution's theory of theft by false pretenses is incorrect as a matter of law, and the
appropriate charge should have been larceny by trick. She claims financial elder abuse
was incorrectly charged as a separate crime rather than as a sentencing enhancement to
the underlying count of grand theft.
Moore contends the forgery count is defective because brokerage account
statements are not negotiable or transferable and therefore do not come within the
meaning of section 470. Finally, Moore claims the Berkley/Anderson, military benefits
and Markovich counts involved different methods of commission and were not
interrelated, and therefore did not constitute a pattern of related felony conduct for
purposes of imposing the aggravated white collar criminal enhancement penalties under
section 186.11, subdivision (a)(2).
We conclude that Moore's convictions for grand theft from Berkley and Anderson
(counts 1 & 3) must be reversed. The trial court instructed the jury on three theories of
theft, including theft by embezzlement, which has the same elements as embezzlement.
The record does not show on which theory of theft the jury convicted Moore. After
4
review, we accept the People's concession that Moore's conviction for grand theft
(count 8) from Dr. Markovich must be reversed because grand theft is a lesser included
offense of financial elder abuse, and the charges were based on the same conduct. We
also conclude that the trial court erred when it determined Cdr. Markovich was
unavailable to testify as a witness at trial and admitted into evidence his conditional
examination. We nevertheless determine that the constitutional violation was harmless
beyond a reasonable doubt. Finally, we conclude that a brokerage account statement is
not a document or instrument within the meaning of section 470, and necessarily reverse
Moore's conviction for forgery (count 10). In all other respects, the judgment is affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND3
Overview of Charges
The People alleged Tara Virginia Moore was guilty of grand theft and
embezzlement of more than $3 million from her employers, William Berkley and Richard
Anderson, resulting in the loss of a commercial property lease in Vista and Berkley's
successful restaurant, Jack's La Jolla (Jack's). The People also charged Moore with
defrauding the Department of Defense and in a separate count, the Department of
Veterans Affairs, of more than $65,000 each by falsely claiming she had not remarried in
order to continue receiving military survivor benefits. Moore was charged with grand
3 Additional factual and procedural background is set forth in the Discussion where relevant to the specific issue raised on appeal.
5
theft and financial elder abuse for obtaining $1.837 million in loans from her then
mother-in-law, Dr. Markovich, for a development project that did not exist. The People
charged Moore with two counts of forgery for adding her name to Dr. Markovich's
brokerage account statement and falsifying a real estate purchase and sale agreement.
The People also alleged that Moore engaged in a pattern of fraud and embezzlement
involving two or more related felonies resulting in the loss by another person of more
than $500,000 under section 186.11, subdivision (a)(2) (aggravated white collar criminal
enhancement).
The Berkley/Anderson Counts
In 1993, Richard Anderson, an investor, and William Berkley, an entrepreneur
who specialized in buying and renovating poorly performing real property, purchased an
office and retail complex in San Diego County.4 Berkley hired Tara Moore to work in
the office and show office space to prospective clients. Berkley found Moore to be "quite
resourceful." Moore's duties expanded to include bookkeeping and payroll functions,
collecting rents, depositing checks, and paying bills.
In 1998, Anderson and Berkley sold their original property at a significant profit.
They purchased other properties, creating a separate business entity and bank account for
each property. As Anderson and Berkley's holdings increased, Moore's responsibilities
expanded. She collected rents, entered data in the financial software application, paid
4 Generally, Anderson owned the properties and Berkley managed them and received a share of the profits when a property was sold. Their precise business arrangements are not relevant here.
6
expenses, handled incoming and outgoing mail, answered the telephone, and was
responsible for providing financial records to certified public accounting firms for tax
purposes. Moore's salary ranged from $35,000 to $42,000 a year.
Berkley purchased the Tierrasanta Gateway Center (TGC). He sold TGC in
approximately 2002. He was not aware the bank account that was established for TGC
revenue and expenses remained open after TGC was sold.
Anderson and Berkley acquired a ground lease in a commercial property in Vista,
known as the Burlington Coat Factory (BCF) property. The BCF landlord initiated legal
proceedings after not receiving monies due him, and Berkley and Anderson lost the lease.
Total rental income from the BCF lease was $559,442. However, Berkley and Anderson
learned later that only $53,041 was deposited in the BCF bank account, and there were
more expenses attributed to BCF than were justified.
Anderson purchased an undeveloped 10-acre property in Rancho Bernardo (RB
project or RB property) in 1997, and set up a partnership with Berkley to develop it.
Anderson invested approximately $3 million to acquire the property, grade the site and
prepare it for development. In 2001, Berkley relinquished his interest in the RB Project
to Anderson.
In approximately 2005, Moore told Berkley that Anderson was going to sell the
RB property to her at an attractive price and offered Berkley a 25 percent interest if he
would invest in the project. During the next three years, Moore talked to Berkley about
investing in the RB Project. She said she had sufficient financial resources for the deal.
Moore told Berkley she had hired an architect to do a preliminary study, identified a
7
prospective tenant, and obtained a soils report. At trial, Anderson testified he still owned
the RB property. He never discussed selling it to Moore. After Berkley relinquished his
interest in 2001, Anderson retained sole ownership of the RB property and did not have
any other partners.
In 2002, after selling his other properties, Berkley purchased a property at the
corner of Girard Avenue and Wall Street in La Jolla. He leased a portion of the property
to tenants, including his own real estate management company. His rental income paid
for 90 percent of his operating expenses. Berkley personally invested $7 million or
$8 million to develop the other portion of the property. His restaurant, Jack's La Jolla,
opened in 2005. Berkley opened a second restaurant and a nightclub at the same site in
2006.
Jack's was an immediate success. Nevertheless, near the end of 2006, Jack's
started having cash-flow problems. Checks to employees and vendors were returned for
insufficient funds. Moore was doing all the accounting for Berkley's businesses with
advice from Consadine & Consadine, a certified public accounting firm. Moore hired her
brothers to help her with Berkley's accounting. She named her operation The Brevard
Group.
In 2007, Consadine & Consadine told Berkley the company's bank deposits were
off by a large amount and could not be reconciled. Jan Jenkins, a consultant hired to
resolve accounting problems, had problems getting the financial information she needed
from Moore. As a result, only some of the recommended accounting functions were
implemented. In March 2008, Moore changed Berkley's accounts to another bank just as
8
Berkley was getting online access to his accounts. She switched banks again in
December 2008.
In April 2009, the California Board of Equalization (the BOE) contacted Berkley
and told him Jack's owed more than $500,000 in unpaid sales taxes. Berkley learned
Moore had an unauthorized power of attorney giving her authority to work with the BOE.
Moore had concealed from Berkley the BOE notices of unpaid tax liability.
Berkley also learned Moore had written a $100,000 check out of his business
account to pay for her wedding and personal expenses. He discovered the TGC bank
account was still open and the account statements were sent to Moore's post office box.
At trial, Berkley testified that more than $1.28 million in rent checks from his other
companies was deposited in the TGC bank account after TGC was sold.
Moore claimed she had loaned money to Jack's from her personal accounts. She
approached Berkley about buying Jack's, claiming Berkley owed her $2 million. To
show she had the resources to purchase the property, Moore presented a Morgan Stanley
account statement listing her, Dr. Markovich and Cdr. Markovich as owners of a
brokerage account valued at $1.957 million. Berkley verified there were no accounts
with Moore's Social Security number held at Morgan Stanley.
Berkley asked his accounting firm, Consadine & Consadine, to conduct a review
of his company's financials. After review, Consadine & Consadine informed Berkley
that Moore was involved in a classic embezzlement scheme. Berkley banned Moore
from the premises. He hired a new manager with more than 30 years of experience in the
restaurant business. The new manager took over the accounting for Jack's. There were
9
no more checks returned for insufficient funds. The restaurant was doing well.
However, in late July 2009, the BOE suddenly confiscated all the money in Berkeley's
bank account.
Berkley was exhausted. On July 30, 2009, he abruptly closed Jack's. Jack's 120
employees lost their jobs. Berkley's net worth went from $15 million to owing more than
$1 million. Berkley hired a forensic accountant and filed for bankruptcy. In an office at
Jack's, the forensic accountant found three of Moore's personal bank statements showing
Moore made unusually large deposits in March, April and May 2008. The accountant
suggested Berkley contact the district attorney.
Forensic review of the bank accounts of Moore and the Anderson/Berkley
business entities showed that starting in approximately 2003, Moore began diverting rent
checks payable to the Anderson/Berkley businesses to her personal use. Moore deposited
the rent checks directly into her own bank account or into the TGC account and then to
her bank account. She also began to write checks to herself from the Anderson/Berkley
businesses. Moore concealed these transactions, in part, by recording them as payments
to legitimate vendors, and providing falsified registers to the accounting firms for tax
purposes. On occasion, Moore would make a deposit into Berkley's account from her
own bank account. She recorded some of those funds as personal loans from her to
Berkley.
A forensic accountant examined the Brevard Group's records and determined its
primary function was to fabricate accounting records. The Brevard Group did not file
taxes, send invoices for its work, or record payroll. The forensic accountant concluded
10
that of monies belonging to Anderson, Moore deposited $499,572 directly into her bank
account, and $1,270,942 into the TGC account and from there into her bank account.
Moore returned $429,298 to Anderson as a "loan." She redirected $3,140,534 in
Berkley's funds to her bank account, returning $942,901 to him as a "loan."
The Military Benefits Count
The Survivor Benefit Plan was enacted by Congress in 1972 to provide benefits to
surviving spouses and dependent children of deceased military retirees. (Pub.L.
No. 92-425, 86 Stat. 706, enacted Sept. 21, 1972, 10 U.S.C. §§ 1447-1455.) It is
administered by the Defense Finance and Accounting Services (DFAS), a service agency
to the Department of Defense. If a surviving spouse under the age of 55 years remarries,
he or she is no longer entitled to receive benefits. The surviving spouse is required to
sign a Certificate of Eligibility (COE) each year attesting that he or she "did not marry in
the past year."
Moore married Robert Moore, a United States Navy pilot, in 2003. He died from
cancer in May 2005 while on active duty. Moore filed an application for DFAS military
survivor benefits on June 8, 2005.
In October 2005, Moore married Cdr. Markovich, a pilot in the United States
Navy and Robert Moore's best friend. Moore asked Cdr. Markovich to keep the marriage
a secret out of respect for her late husband. They never lived together. Moore and
Cdr. Markovich divorced in February 2009. Two weeks later she married David Fox.
After her marriage to Cdr. Markovich, Moore signed COE forms in October 2006,
May 2007, July 2007, and March 2008 stating she had not married in the past year. After
11
she married Fox, Moore signed COE forms in July 2010 and May 2011 stating she had
not married in the past year. She received a total of $74,829 from DFAS. In 2011,
Moore's account was suspended and the matter was referred to Naval Criminal
Investigative Services.
The Markovich Counts
Cdr. Markovich believed Moore, Berkley and Anderson were business partners
and Moore was working on the RB Project. Cdr. Markovich helped Moore with what she
said were expenses for the RB Project. When he had exhausted his savings, credit and
home equity, Cdr. Markovich suggested they ask his mother for a loan.
In October 2006, Cdr. Markovich telephoned his mother and Moore explained the
RB Project to her. Moore told Dr. Markovich the permits for the project were about to
expire and she need $135,000 to protect her investment. Moore said she expected to
make $24 million to $30 million on the RB Project. Dr. Markovich agreed to lend
$135,000 to Moore. Moore made repeated requests for money, each time telling
Dr. Markovich she needed a specific amount of money for a specific purpose for the RB
Project. In total, Moore received approximately $1.837 million from Dr. Markovich.
Dr. Markovich began to worry about depleting her life savings to help her son and
daughter-in-law. In October 2007, Moore and Cdr. Markovich signed a promissory note
agreeing to pay Dr. Markovich the amount of $1,551,472.17, plus an unspecified amount
of interest. Moore began paying $4,000 a month to Dr. Markovich. In approximately
May 2008, Moore and Cdr. Markovich signed a second promissory note, agreeing to pay
$700,000 to Dr. Markovich by August 31, 2008. Moore showed Dr. Markovich a real
12
estate contract for sale for a property in La Jolla, telling Dr. Markovich she would pay her
$700,000 when the sale was final. Moore made monthly payments totaling $72,000 to
Dr. Markovich from November 2007 to April 2009. She did not make the $700,000
payment. Berkley later testified he was the sole owner of the La Jolla property listed on
the real estate contract and Moore did not have any interest in the property.
Dr. Markovich learned the RB Project did not exist when Moore filed for
bankruptcy and listed her as a creditor. Dr. Markovich's attorney missed a filing deadline
and the debt was discharged in bankruptcy. (See In re Owen-Moore (2010) 435 B.R.
685.)
A forensic use of funds analysis showed that of the $1.837 million received from
Dr. Markovich, Moore used $844,410 for personal expenses and $133,727 to support the
Brevard Group. She returned $687,270 to Berkley and $172,065 to Anderson from the
Markovich funds.
II.
DISCUSSION
A. Claim of Improper Consolidation of Charges
Moore argues the joinder of the military benefits and Markovich counts to the
Berkley/Anderson counts denied her due process of law.
1. Additional Factual and Procedural Background
In September 2011, in case No. CD236506, the People filed a four-count felony
complaint alleging Moore committed theft offenses against Berkley. In November 2011,
in case No. CD237444, the People filed a three-count felony complaint alleging Moore
13
committed theft and elder abuse offenses against Dr. Markovich. In December 2011, the
People filed an amended complaint in case No. CD236506 alleging Moore committed
theft offenses against Anderson.
On May 16, 2012, the People filed a motion to consolidate the Berkley/Anderson
counts with the Markovich counts. In its motion, the People said an additional charge of
theft of military survivor benefits would be filed in case No. CD236506. Moore filed an
opposition to the People's motion for consolidation.
On June 1, 2012, the trial court ruled that the Berkley/Anderson and Markovich
counts involved the same class of crimes as defined in People v. Kemp (1961) 55 Cal.2d
458 (Kemp). The trial court said the alleged offenses were connected and it would be
impossible to separate the evidence. In addition, Moore did not show she would be
prejudiced by consolidation. The trial court found that the cases were not highly
inflammatory, one was not weaker than the other, and consolidation would conserve
judicial resources and public funds. Accordingly, the trial court ordered the
Berkley/Anderson and Markovich counts consolidated for trial.
On June 6, 2012, Moore was arraigned on the consolidated complaint, which
included a new charge of grand theft of military survivor benefits. Moore did not file a
motion to sever the military survivor benefits count from the Berkley/Anderson and
Markovich counts.
2. Statement of Law and Standard of Review
"Section 954 provides that an accusatory pleading may 'charge two or more
different offenses connected together in their commission . . . or two or more different
14
offenses of the same class of crimes or offenses . . . .' " (People v. Mendoza (2000) 24
Cal.4th 130, 160 (Mendoza).) Offenses are " ' "connected together in their commission"
when they are [] linked by a " 'common element of substantial importance.' " ' " (Id. at
p. 160; see Kemp, supra, 55 Cal.2d at p. 476; Alcala v. Superior Court (2008) 43 Cal.4th
1205, 1217 (Alcala).) Offenses are of the same class when they possess common
characteristics or attributes. (People v. Kraft (2000) 23 Cal.4th 978, 1030 (Kraft).)
"The law prefers consolidation of charges." (People v. Ochoa (2001) 26 Cal.4th
398, 423.) Consolidation ordinarily avoids the increased expenditure of funds and
judicial resources that may result if the charges are tried in two or more separate trials.
(People v. Soper (2009) 45 Cal.4th 759, 772 (Soper).) Where the statutory requirements
for joinder are met under section 954, "a defendant must make a clear showing of
prejudice to establish that the trial court abused its discretion" in granting a motion for
consolidation. (Mendoza, supra, 24 Cal.4th at p. 160; People v. Ochoa (1998) 19 Cal.4th
353, 409 [same standards apply to motion to consolidate and motion for severance].) In a
noncapital case, the factors to be considered in a motion for consolidation or severance
are the cross-admissibility of the evidence in separate trials; whether some of the charges
are likely to unusually inflame the jury against the defendant; and whether a weak case
has been joined with a strong case or another weak case so that the total evidence may
alter the outcome of some or all of the charges. (Mendoza, at pp. 160-161.) These
factors are not of equal weight. If the evidence on each of the joined charges would have
been admissible under Evidence Code section 1101 in separate trials on the other charges,
then any inference of prejudice is dispelled. (People v. Jenkins (2000) 22 Cal.4th 900,
15
948 (Jenkins).) In other words, the cross-admissibility of the evidence is sufficient to
negate prejudice without any further showing. (Ibid.)
In an appeal from consolidation or denial of severance, we consider the record that
was before the trial court at the time of the ruling, not the evidence or arguments that may
have developed later. (People v. Thomas (2012) 53 Cal.4th 771, 798; People v. Ochoa,
supra, 19 Cal.4th at p. 409.) The appellant has the burden of establishing a prejudicial
abuse of discretion. (People v. Balderas (1985) 41 Cal.3d 144, 171.)
3. Consolidation Is Proper Because the Offenses Are of the Same Class
The trial court did not err in ruling that the Berkley/Anderson and the Markovich
offenses are the same class of crimes. Although Kemp, the case on which the trial court
relied, concerns the "connected together in their commission" test under section 954
(Kemp, supra, 55 Cal.2d at pp. 467-477), case law supports the trial court's finding that
the Berkley/Anderson and the Markovich offenses are of the same class. (Kraft, supra,
23 Cal.4th at p. 1030 [unrelated homicide offenses are of the same class]; People v. Lucky
(1988) 45 Cal.3d 259, 276 [robbery and murder charges are of the same class because
they share common characteristics as assaultive crimes against the person].)
Embezzlement and theft by false pretenses are varieties of the crime of theft. (People v.
804, 841.) This rule does not prohibit admission of evidence of uncharged misconduct
when such evidence is relevant to establish some fact other than the person's character or
disposition, such as identity, common plan, or intent. (Evid. Code, § 1101, subd. (b);
People v. Edwards (2013) 57 Cal.4th 658, 711.) Evidence of uncharged crimes is
20
admissible to prove identity, common design or plan, or intent only if the charged and
uncharged crimes are sufficiently similar to support a rational inference of identity,
common design or plan, or intent. (People v. Walker (2006) 139 Cal.App.4th 782, 796
(Walker).)
3. Analysis
a. Uncharged Acts
Moore does not support her assertion the trial court erred by admitting evidence of
uncharged crimes by appropriate reference to the record. (Cal. Rules of Court, rule
8.204(a)(1)(C) [the statement of any matter in the record shall be supported by
appropriate reference to the record].)5 Instead, Moore cites the prosecutor's closing
arguments in support of her assertion. After reviewing the prosecutor's closing argument,
we infer Moore is complaining about references to uncharged misconduct in the course of
her employment prior to the time period alleged in the indictment: July 30, 2003, to
March 13, 2009, in the Berkley counts; and August 8, 2003, to August 29, 2008, in the
Anderson counts.
Statements by counsel are not evidence. (People v. Richardson (2008) 43 Cal.4th
959, 1004.) "It is not the duty of a reviewing court to search the record for evidence on a
point raised by a party whose brief makes no reference to the pages where the evidence
can be found." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011,
italics added.) We deem this issue forfeited on appeal. (In re S.C. (2006) 138
5 Further rule references are to the California Rules of Court.
21
Cal.App.4th 396, 406-407 [when an appellant's brief makes no references to support the
claims, the reviewing court can simply deem the contention to lack foundation and, thus,
to be forfeited].)
Even if the issue was not forfeited, any evidence showing that Moore started
diverting Anderson/Berkley rent checks to her own account prior to July or August 2003
would have been admissible to show identity, common design or plan, or intent. The
charged and any uncharged crimes in the Anderson/Berkley counts were identical in
nature, and show a continuous course of conduct. (Walker, supra, 139 Cal.App.4th at
p. 796.)
b. The Court Did Not Err When It Allowed Owen to Testify
The defense objected to the testimony of Moore's former husband, John Owen,
stating it was not relevant. The trial court ruled the evidence was relevant to show a
starting point for Moore's income, and was not unduly prejudicial.
Moore and Owen started living together in 1990, married in 1995, separated in
1997, and divorced in 2002. Owen testified Moore worked for a property management
company when they were married. They were not wealthy and lived paycheck to
paycheck. Owen and Moore lived in a rented apartment. Owen had no knowledge of
Moore's finances after they separated in 1997. He did not see any change in her
economic circumstances from 1997 to 2002.
22
On appeal, Moore argues Owen's testimony had no probative value and created a
danger of undue prejudice.6 (Evid. Code, § 352.) She complains his testimony informed
the jury Moore "had been married multiple times, playing on an obviously sexist trope
that oft-remarried women are manipulative or gold-diggers, certainly flawed, and morally
suspect."
We conclude that the trial court properly exercised its discretion in admitting
Owen's testimony under Evidence Code section 352. Owen's limited testimony tended to
show Moore came from modest circumstances and was not financially independent. His
testimony was relevant to show Moore's only income was from her employment and she
did not have other financial resources. We reject Moore's speculative claim that evidence
of her marriage to Owen was prejudicial because the jury would infer she was a gold-
digger. Owen did not cast Moore in a bad light. Evidence is not prejudicial under
Evidence Code 352 "merely because it undermines the opponent's position or shores up
that of the proponent." (People v. Doolin (2009) 45 Cal.4th 390, 438.)
c. Moore Has Forfeited the Claim of Error in Admitting Character Evidence in the Markovich Conditional Examinations
The defense objected to the admission of Dr. Markovich's and Cdr. Markovich's
statements concerning Moore's marriages and birth of her child with Robert Moore, and
6 Despite its inclusion in the portion of appellant's opening brief addressing claims of admission of improper character evidence, Owen's testimony did not show Moore had any propensity to commit misconduct, and was not character evidence as defined in Evidence Code section 1101, subdivision (a). Under rule 8.204(a)(1)(B), the argument should have been structured under its own heading. We disregard the noncompliance. (Rule 8.204(e)(2)(C).)
23
Dr. Markovich's opinions about Moore's character. The parties agreed to redact the
objectionable material from the videotapes and transcripts of the conditional exams.
After the edited videotapes were shown to the jury, the trial court said to counsel,
"We are outside the presence of the jury. Gentlemen, I have to admit I think you should
go back to film school for editing purposes. I thought we'd edited some of that stuff out."
The prosecutor said, "I edited out what [the defense] wanted out."
The court responded, "Okay. As long as both sides want it, that's fine. I just was a
little surprised." Defense counsel did not object.
Moore's argument is wholly without merit. The appellant has the burden to
provide an adequate record on appeal to allow the reviewing court to assess the purported
error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Although Dr. Markovich's and
Cdr. Markovich's original conditional examinations are in the appellate record, the
portions of their conditional examinations that were admitted in evidence are not in the
appellate record. Therefore, this court cannot assess the purported error, if any.
(Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955 [a reviewing court will
"decline to find error on a silent record"].)
Second, the record shows that Moore had an opportunity to redact objectionable
material from the conditional examinations that were admitted into evidence. Here, the
prosecutor told the trial court he "edited out what [the defense] wanted out" from the
conditional examinations. Moore did not object to any evidence that was presented to the
jury in the edited conditional examinations. Thus, Moore has forfeited the argument on
appeal. (Dakota H., supra, 132 Cal.App.4th at pp. 220-221.)
24
C. The Berkley/Anderson Counts
Moore asks this court to set aside the convictions on the Berkley/Anderson counts.
She argues she was deprived of the testimony of a key defense witness in violation of her
Sixth Amendment right to compulsory process. Moore contends counts 2 and 4
(embezzlement) should be set aside as duplicative of counts 1 and 3 (grand theft). Moore
further contends counts 1 and 3 should be set aside because the People introduced
evidence that was obtained through an invalid search warrant, and the trial court erred
when it allowed a police detective to opine Moore was engaged in a criminal enterprise.
1. The Right to Compel the Presence of a Witness
Moore contends the prosecutor committed misconduct by interfering with her
constitutional right under the Sixth Amendment to call a key defense witness, Max
Gascoine, to testify on her behalf. Moore contends Gascoine's testimony would have
supported her claim that the money she allegedly embezzled was reimbursement for
expenses she incurred on her employers' behalf. According to Gascoine, Berkley was a
micromanager who closely reviewed financial information and directed Moore to
commingle funds in various banks accounts. Moore argues the prosecutor committed
misconduct by arresting Gascoine during the course of the investigation into Moore's
criminal case, threatening Gascoine with prosecution during his conditional examination,
failing to grant him immunity, and turning him over to federal authorities for deportation
before trial. Moore further contends the trial court violated her rights under the Sixth
Amendment by excluding Gascoine's conditional examination from evidence.
25
a. Additional Factual and Procedural Background
In 1998, Berkley hired Gascoine for a sales position with one of his companies.
At that time, Moore was employed as a receptionist. According to Gascoine, Moore was
not good with computers. He began to help her input financial information into a
software program and produce spreadsheets. Gascoine continued to help Moore with
accounting work until approximately 2006, when he left to start his own business. When
Moore filed for bankruptcy, she hired Gascoine to help prepare bankruptcy records,
schedules and statements of accounts. He later helped her prepare for her criminal case.
After Moore was indicted, Gascoine signed a statement asserting he witnessed
Berkley instruct Moore to personally pay expenses that he did not want on the books.
Gascoine said Berkley directed him to code Berkley's personal expenses as business
expenses, and to send misleading transaction histories to Anderson's certified public
accountant. He also stated Berkley instructed Moore to commingle funds from various
business accounts.
Gascoine's signed statement was brought to the prosecutor's attention. During his
investigation, the prosecutor learned Gascoine was in the country illegally and was using
another person's Social Security number. The prosecutor charged Gascoine with identity
theft. He pleaded guilty and was subject to deportation after sentencing.
Moore noticed a conditional examination for Gascoine, who was in local custody
awaiting sentencing. The trial court was concerned about proceeding in the absence of
Gascoine's criminal trial lawyer (Counsel), and continued the proceedings to allow
Counsel to be present.
26
At the conditional examination, which occurred after Gascoine was sentenced,
Counsel generally objected to the examination going forward, stating he had advised
Gascoine to assert his privilege against self-incrimination. Counsel could not identify
any area of questioning that would place Gascoine at risk of self-incrimination. The trial
court overruled the objection as speculative, and said if Gascoine were placed at risk in
the examination, the court would allow him to claim the privilege if he clearly was going
to incriminate himself.
At the conditional examination, Gascoine testified about Berkley's business
practices, his monthly review of financial information, and Moore's lack of expertise with
computer software. Gascoine said he prepared routine reports, attached them to bank
statements with the cancelled checks, and gave them to Berkley for his review.
On redirect, the defense questioned Gascoine about a signed addendum to his first
statement. In the addendum, Gascoine claimed he deposited money at Berkley's direction
into various bank accounts, including receipts from Burlington Coat Factory tenants in
the TGC bank account, in Moore's absence. The prosecutor objected to the questioning
on the ground the addendum had not been disclosed to the People. The trial court
directed the defense to provide a copy to the prosecution.
When court proceedings resumed, defense counsel told the trial court the
prosecutor had engaged in witness intimidation by providing police reports to Counsel to
deliver to Gascoine before he resumed testifying. The prosecutor confirmed he had
provided Counsel with the addendum and two police investigative reports. The
prosecutor said Gascoine's statement showed he knew about the accounting and
27
reconciliation of the TGC account, which Moore used to facilitate a major part of her
embezzlement. The prosecutor told the trial court he felt obligated to inform Counsel
instead of proceeding with questioning that could potentially lead to Gascoine's criminal
liability for aiding and abetting Moore's fraud.
Counsel asked for more time to review the documents with Gascoine. He said he
would "absolutely" advise Gascoine to assert his right against self-incrimination in view
of the documents he had just received and the district attorney's representations. The trial
court suggested the prosecutor could grant immunity to Gascoine. The prosecutor replied
he did not have the authority. The trial court said the prosecutor was not trying to
intimidate the witness and continued the proceedings to allow Counsel to review the
police reports with Gascoine.
At the continued hearing, Gascoine invoked his privilege against self-
incrimination. Defense counsel asked the trial court to order the prosecution to grant
immunity to Gascoine. The trial court said it was without authority to do so. Gascoine
was deported before Moore's trial began.
During pretrial proceedings, the prosecution moved to exclude Gascoine's
conditional examination from evidence. Over defense objection, the trial court granted
the motion and rejected the defense's suggestion that the trial court admit portions of
Gascoine's testimony. The trial court said it would reconsider its ruling if the parties
agreed on which portions should be admitted. There is no indication in the record that
the parties ever reached an agreement to admit into evidence a portion of Gascoine's
testimony.
28
b. Legal Principles
The Sixth Amendment to the United States Constitution sets forth several
fundamental protections for criminal defendants, including the right to compel the
testimony of those who have favorable evidence. (People v. Jacinto (2010) 49 Cal.4th
263, 268 (Jacinto); U.S. Const., 6th Amend. ["in all criminal prosecutions, the accused
shall enjoy the right . . . to have compulsory process for obtaining witnesses in his
favor"].) "The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the right to present the
defendant's version of the facts as well as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the right to confront the prosecution's
witnesses for the purpose of challenging their testimony, he has the right to present his
own witnesses to establish a defense. This right is a fundamental element of due process
of law." (Washington v. Texas (1967) 388 U.S. 14, 19.)
"This constitutional guarantee, generally termed the compulsory process clause,
applies in both federal and state trials. (Washington v. Texas[, supra,] 388 U.S. 14 [6th
Amend.'s compulsory process clause is incorporated into the 14th Amend.'s due process
clause, making it applicable in state prosecutions].)" (Jacinto, supra, 49 Cal.4th at
p. 268.) The California Constitution similarly guarantees compulsory process as a basic
component of a fair trial. (In re Martin (1987) 44 Cal.3d 1, 30 (Martin).)
"A criminal defendant's rights under the compulsory process clause can be
infringed in several ways. 'They include, for example, statements to defense witnesses to
the effect that they would be prosecuted for any crimes they reveal or commit in the
29
course of their testimony. [Citations.] They also include statements to defense witnesses
warning they would suffer untoward consequences in other cases if they were to testify
on behalf of the defense. [Citations.] Finally, they include arresting a defense witness
before he or other defense witnesses have given their testimony.' ([Martin], supra, 44
Cal.3d at pp. 30-31.)" (Jacinto, supra, 49 Cal.4th at p. 269.)
To prevail on a claim of prosecutorial violation of the right to compulsory process,
a defendant must establish three elements. (In re Williams (1994) 7 Cal.4th 572, 603.)
First, the defendant must show the prosecutor's conduct was "entirely unnecessary to the
proper performance of the prosecutor's duties and was of such a nature as to transform a
defense witness willing to testify into one unwilling to testify." (People v. Mincey (1992)
2 Cal.4th 408, 460 (Mincey); In re Williams, at p. 603; People v. Lucas (1995) 12 Cal.4th
825A, 457 (Lucas). The defendant is not required to show that the prosecutor acted in
bad faith or with improper motives. (Martin, supra, 44 Cal.3d at p. 31.)
If prosecutorial misconduct is established, the defendant must show the
misconduct was a substantial cause in depriving the defendant of the witness's testimony.
(Martin, supra, 44 Cal.3d at p. 31.) The defendant "is not required to prove that the
conduct under challenge was the 'direct or exclusive' cause. . . . Rather, he need only
show that the conduct was a substantial cause. . . . The misconduct in question may be
deemed a substantial cause when, for example, it carries significant coercive force . . .
and is soon followed by the witness's refusal to testify . . . ." (Ibid., citations omitted.)
Finally, if causation is shown, the defendant must demonstrate "the testimony he was
unable to present was material to his defense." (Lucas, supra, 12 Cal.4th at p. 457.)
30
c. Analysis
Moore's argument the prosecutor committed misconduct by arresting Gascoine
and by facilitating his deportation is wholly without merit. Gascoine's arrest did not turn
him into an unwilling witness. Gascoine testified at length in his conditional examination
before the defense introduced his addendum without having provided it to the
prosecution. Moreover, the parties were fully aware of Gascoine's pending deportation.
The defense noticed Gascoine's conditional examination precisely because she knew he
was likely to be deported after he was sentenced. The prosecutor did not object when the
defense asked the trial court to declare Gascoine to be a material witness and delay his
remand into federal custody. When the trial court delayed the conditional examination to
allow Gascoine to consult with Counsel, the prosecution asked the trial court to issue an
order to produce him for the continued hearing.
In addition, Moore has forfeited the argument the prosecutor committed
misconduct by facilitating Gascoine's deportation. (Dakota H., supra, 132 Cal.App.4th at
pp. 121-122.) After Gascoine asserted his Fifth Amendment rights, the trial court said it
was not going to hold him as a material witness, subjecting him to deportation. The
defense attorney responded, "As a practical matter, if he's not going to testify under the
advi[c]e of counsel, even keeping him here for prelim or trial would be a futile gesture
and not practical under the circumstances."
Similarly, we are not impressed with the argument that the prosecutor committed
misconduct by refusing to grant immunity to Gascoine. Moore asserts defense counsel
asked the prosecutor to grant immunity. Our review of the record shows when Counsel
31
said he would advise Gascoine to assert his right against self-incrimination (after
reviewing the police reports), the trial court said, "There is the practical aspect, but the
[district attorney] could give him immunity."
The prosecutor responded, "I don't have that authority to do that at this time, Your
Honor."
The trial court said, "I know you don't."
Defense counsel remained silent during this discussion about immunity, and has
forfeited this argument on appeal. (People v. Arias (1996) 13 Cal.4th 92, 159 (Arias)
[failure to object waives a misconduct claim on appeal unless an objection would have
been futile]; see also In re Williams, supra, 7 Cal.4th at p. 609 [California cases
uniformly reject claims that a criminal defendant has the power to compel testimony by
forcing the prosecution to grant immunity].) Several days later, defense counsel asked
the trial court to order the prosecution to provide judicial immunity to Gascoine. The
trial court declined, stating such an order would violate the doctrine of separation of
powers. Moore has not challenged this ruling on appeal. (See Lucas, supra, 12 Cal.4th
at p. 461 [expressing doubt the trial court has inherent authority to grant immunity];
In re Williams, at p. 610 [vast majority of cases in California and other jurisdictions reject
the notion a trial court has inherent power to confer immunity on a witness called by the
defense].)
Moore raised the issue of prosecutorial misconduct after learning the prosecutor
provided police reports to Counsel. She now contends in providing those reports, the
prosecutor was threatening Gascoine with prosecution should he testify on Moore's
32
behalf. Our analysis is informed by the California Supreme Court's decision in Lucas. In
that case, the defendant argued the prosecutor, through intimidation and threats,
transformed witnesses who were willing to testify on the defendant's behalf into
witnesses who refused to testify. (Lucas, supra, 12 Cal.4th at p. 457.)
In Lucas, the trial court raised the issue whether witness A should be represented
by independent counsel. In A's presence, the prosecutor said witness A had a prior
narcotics conviction and was a suspect in another matter. The defense claimed the
prosecutor's remarks were a threat to prosecute witness A should he testify for the
defense. (Ibid.) The trial court also raised concerns that witness B might incriminate
himself and insisted the second witness consult independent counsel. The prosecutor,
without addressing witness B or threatening prosecution, said there was no evidence to
show that more than one person was involved in the crime, however, someone who
testified he was with the defendant shortly before the crime occurred could not be ruled
out as an accomplice. (Id. at p. 458.)
The Lucas court ruled with respect to witness A, the record clearly showed it was
the trial court, not the prosecutor, who raised concerns about the possibility that witness
A would incriminate himself. Further, the prosecutor's comments were not threats
directed to witness A. As to witness B, the Lucas court said: "In any event, whether or
not it was proper for the prosecutor to point out in front of the witness that the latter could
not be ruled out as an accomplice under the facts of the case, it is clear that the
prosecutor's comment was not a substantial cause of the witness's decision to refuse to
testify. Rather, the record demonstrates that before the prosecutor made the allegedly
33
coercive statement, [the witness's] counsel had already advised [the witness] to invoke his
privilege against self-incrimination . . . ." (Lucas, supra, 12 Cal.4th at p. 458.)
Here, the trial court, not the prosecutor, raised concerns that Gascoine might
incriminate himself. The trial court continued the conditional examination until Counsel
was present. Counsel objected to the examination, stating he had advised Gascoine to
invoke his privilege against self-incrimination. At that point in time, Counsel was not
aware of any information that would tend to incriminate Gascoine, and the trial court
overruled Counsel's objection. The trial court said if Gascoine were placed at risk in the
examination, the court would allow him to claim the privilege. When the prosecutor
learned Gascoine had signed an addendum that could be interpreted as implicating him in
Moore's criminal activities, the prosecutor turned over the statement and two law
enforcement investigative reports to Counsel.
As in Lucas, it is clear the trial court was the first to raise the possibility Gascoine
might incriminate himself were he to testify. Although the trial court initially was more
concerned about the effect of incrimination in Gascoine's own criminal proceedings, the
trial court said Gascoine could assert the privilege if he was placed at risk during the
examination. Like Lucas, in providing material to Gascoine's counsel, the prosecutor
merely offered information relevant to this concern. "[T]he prosecutor's comments were
not threats directed to the witness. (Cf. People v. Warren (1984) 161 Cal.App.3d 961,
971-976 [threat that witness would be prosecuted for any crimes revealed in testimony];
People v. Robinson (1983) 144 Cal.App.3d 962, 970 [threat that charges will be filed];
United States v. Hammond (5th Cir.1979) 598 F.2d 1008, 1012-1013 [threat of 'untoward
34
consequences' if witnesses testified].)" (Lucas, supra, 12 Cal.4th at p. 458.) After
reviewing the documents with Counsel, Gascoine invoked his right against self-
incrimination. Under these circumstances, as in Lucas, it was obvious no competent
attorney would have advised the witness to testify. (Lucas, at p. 458.)
Further, the prosecutor's delivery of Gascoine's signed statement and police reports
to Counsel was in keeping with the trial court's concerns about Gascoine's constitutional
rights. The record does not indicate the prosecutor engaged in conduct that was "entirely
unnecessary to the proper performance of the prosecutor's duties and was of such a nature
as to transform a defense witness willing to testify into one unwilling to testify."
(Mincey, supra, 2 Cal.4th at p. 460.) Rather, the record shows the prosecutor acted in a
manner that safeguarded the protections afforded to Gascoine by the right to counsel and
the right to avoid self-incrimination. (Morrow v. Superior Court (1994) 30 Cal.App.4th
1252, 1262, citing Maine v. Moulton (1985) 474 U.S. 159, 171.) Moore's right to
compulsory process under the Sixth Amendment was not violated.
2. The Trial Court Did Not Err in Excluding Gascoine's Conditional Examination
Moore contends the trial court abused its discretion by excluding Gascoine's
conditional examination from evidence. Relying on cases examining the admission or
exclusion of newspersons' testimony in criminal cases under the shield law, Moore argues
the trial court erred when it did not balance the relevant factors in determining whether
Gascoine's conditional examination would be admitted in evidence, and further erred by
35
not considering less drastic alternatives other than striking Gascoine's conditional
examination in its entirety.
The People state the trial court properly excluded Gascoine's testimony under
Evidence Code sections 3527 and 356,8 and argue the straightforward application of state
evidentiary rules does not implicate a defendant's constitutional rights. The People
further contend in view of the overwhelming evidence of Moore's guilt, any error in
excluding Gascoine's conditional examination was harmless beyond a reasonable doubt.
a. Additional Factual and Procedural Background
In ruling on the People's motion to exclude Gascoine's testimony, the trial court
said:
"Max Gascoine. That was a very interesting hearing that we held with him, and the fact that he invoked his Fifth Amendment rights. Actually, he invoked them during what I would deem to be the more critical questions regarding this case. . . . His prior testimony was broad, unfocused and not as pertinent to the questions that he invoked his Fifth on, and that concerns me a lot. And since he's not here, it would not be fair to either party because he has as many questions unanswered as he does questions that he answered. So based on that, his testimony is out. . . . I thought about trying to go through and cherry pick things out. That gets into a big problem."
7 "A trial court has broad discretion to exclude relevant evidence under Evidence Code section 352 'if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (People v. Linton (2013) 56 Cal.4th 1146, 1181.)
8 "The purpose of [Evidence Code section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed." (Arias, supra, 13 Cal.4th at p. 156.)
36
Defense counsel responded: "There might be a bright line prior to redirect — or
recross."
The Court said:
"If you two can . . . find something you both can agree on, I'll revisit it, but there is a huge [Evidence Code section] 356 issue. And as I indicated, he kind of shut down at the point where I would say I was kind of perking up, because those really were the questions that needed to be answered. . . . So I am always open to revisiting rulings . . . . I want to give you both a fair trial, and I want to give the jurors the information they need to make a decision. But this is a very good example of my primary responsibility . . . to keep both of you focused on presenting the relevant information for the jury to make their decision, not to go off on tangents . . . ."
b. Legal Principles
A defendant has a constitutional right to have compulsory process for obtaining
witnesses in his favor.9 (U.S. Const., 6th Amend.; Jacinto, supra, 49 Cal.4th at p. 268.)
This right "cannot be deemed to include the right to call a witness who cannot be
subjected to proper cross-examination." (Fost v. Superior Court (2000) 80 Cal.App.4th
724, 736 (Fost).) When a defense witness invokes his or her right against self-
incrimination, especially after the witness has testified on direct, the People cannot
" ' " 'fully amplify his testimony by inquiring into the facts and circumstances
surrounding his assertions, or by introducing evidence through cross-examination which
9 Contrary to Moore's assertion, the factors used to determine whether to compel a newsperson to testify in a criminal trial are not applicable here. (See Delaney v. Superior Court (1990) 50 Cal.3d 785, 808-813.) Those factors are used by the defendant to overcome a prima facie showing by a newsperson that he or she is entitled to withhold information under the shield law. (Id. at p. 808.)
37
explains or refutes his statements or the inferences which may necessarily be drawn from
In deciding whether to strike the testimony of a defense witness who has refused
to answer one or more questions, the trial court should examine the motive of the witness
and the materiality of the answer. (Reynolds, supra, 152 Cal.App.3d at p. 47.) The trial
court should also consider if "less severe remedies are available before employing the
'drastic solution' of striking the witness's entire testimony." (Seminoff, supra, 159
Cal.App.4th at p. 526.) Alternatives "include striking part of the testimony or allowing
the trier of fact to consider the witness's failure to answer in evaluating his credibility."
(Ibid.) "Striking a witness's entire testimony is, of course, a 'drastic solution,' only to be
employed 'after less severe means are considered.' " (Fost, supra, 80 Cal.App.4th at
p. 736.)
c. Analysis
We reject the argument that the trial court should not have stricken Gascoine's
entire testimony because the People had the opportunity to cross-examine him. Gascoine,
38
who testified as a defense witness, asserted his Fifth Amendment right on redirect after
defense counsel introduced Gascoine's prior statement stating that Berkeley had directed
him to deposit tenants' checks in the TGC bank account in Moore's absence, but before
the prosecution had the opportunity to cross-examine him. The issue had not arisen
during the direct examination and cross-examination. The trial court found that
Gascoine's statement was directly relevant to the charges against Moore whereas his prior
testimony was broad and unfocused.
The record belies Moore's contention the trial court did not consider other
remedies other than completely striking Gascoine's testimony. The trial court considered
admitting selected portions of Gascoine's conditional examination but determined such
"cherry-picking" would contravene Evidence Code section 356, which provides that "if
part of an act, conversation, declaration, or writing is placed in evidence, the adverse
party may inquire into 'the whole on the same subject.' " (Arias, supra, 13 Cal.4th at
p. 156.) The trial court informed the parties if they reached an agreement to admit a
portion of Gascoine's conditional examination at trial, the trial court would revisit its
exclusionary ruling.
In Sanders, the reviewing court said "there is solid support, both judicial and
scholarly, for the proposition that when one or two questions asked during cross-
examination are at stake and those questions relate to a collateral matter such as the
nonparty witness's credibility, the trial court need not strike the entirety of that witness's
direct testimony." (Sanders, supra, 189 Cal.App.4th at p. 556.) For example, in People
v. Robinson (1961) 196 Cal.App.2d 384, a witness refused to identify the buyer of the
39
stolen property, the trial court struck the portion of the witness's testimony relating to the
disposition of the stolen articles. (Id. at p. 386.) In upholding the Robinson court's
decision not to strike the witness's entire testimony, the reviewing court said " 'the
witness refused to answer but one question which, though relevant to the credibility of
the witness, had no bearing on the actual elements of the crime of burglary with which
the defendant was charged.' (Id. at p. 389.)" (Reynolds, supra, 152 Cal.App.3d at p. 48.)
Here, the trial court did not abuse its discretion in striking Gascoine's entire
testimony. Gascoine refused to testify about matters that were relevant to the actual
elements of embezzlement and theft. He did not refuse, as did the witness in People v.
Robinson, supra, 196 Cal.App.2d 384, 386, to answer one or two questions that had no
bearing on the defendant's innocence or guilt. Rather, Gascoine asserted his right against
self-incrimination, which prevented any cross-examination on matters going to the heart
of the Anderson/Berkley charges against Moore. Excluding Gascoine's conditional
examination, although drastic, was a legitimate response to his refusal to answer any
additional questions about his statement about Moore's practice of depositing checks
from Berkley's tenants into the TGC account. In view of the totality of the
circumstances, we cannot conclude that the trial court abused its discretion when it
determined there were no reasonable alternatives other than excluding the entirety of his
testimony. (Fost, supra, 80 Cal.App.4th at p. 735 ["Where a witness refuses to submit to
cross-examination, or is unavailable for that purpose, the conventional remedy is to
exclude the witness's testimony on direct."].)
40
3. Given the Jury Instructions, Moore May Not Be Convicted of Both Grand Theft and Embezzlement
Moore contends she cannot be convicted of both grand theft of personal property
(§§ 484, 487) and embezzlement by a clerk, agent or employee (§ 508) because they are
the same crime and, in her circumstances, were based on the same conduct. She argues
embezzlement is not an independent crime but merely an alternative definition of theft.
Moore maintains that section 508 merely clarifies the definition of embezzlement as a
variety of theft under section 484 and does not constitute a separate offense.10
a. Legal Principles and Standard of Review
"In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. 'In California, a single act or
course of conduct by a defendant can lead to convictions "of any number of the offenses
charged." [Citations.]' [Citation.] Section 954 generally permits multiple conviction."
(People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 (Reed).) "A judicially created
exception to the general rule permitting multiple conviction 'prohibits multiple
convictions based on necessarily included offenses.' " "If the statutory elements of the
greater offense include all of the statutory elements of the lesser offense, the latter is
necessarily included in the former." (Ibid. at p. 1227; id. at pp. 1229, 1231.)
10 In support of her argument that grand theft and embezzlement are not separate offenses, Moore relies on People v. Vidana (2015) 233 Cal.App.4th 666, review granted April 1, 2015, S224546. The California Supreme Court is currently reviewing whether a person can be convicted of both embezzlement and grand theft by larceny for the same conduct, or only of the single crime of theft. As we explain, because the jury instructions here included theft by embezzlement, we need not reach this issue.
41
"Theft is the unlawful taking of the property of another" and "includes the crimes
of larceny, embezzlement, larceny by trick and device and obtaining property by false
pretenses." (People v. Creath (1995) 31 Cal.App.4th 312, 318.) Under section 484,
"[e]very 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. . . ." (§ 484, subd. (a).) As relevant here, grand theft
is theft of money in excess of $950. (§ 487, subd. (a).)
Theft offenses have been consolidated into the single crime of theft under section
484, but their respective elements have not been changed. (People v. Williams (2013) 57
Cal.4th 776, 786; People v. Ashley (1954) 42 Cal.2d 246, 258 ["The purpose of the
consolidation was to remove the technicalities that existed in the pleading and proof of
these crimes at common law."].) A "judgment of conviction of theft, based on a general
verdict of guilty, can be sustained only if the evidence discloses the elements of one of
the consolidated offenses." (People v. Ashley, supra, at p. 258.)
Embezzlement is the fraudulent appropriation of property by a person to whom it
has been entrusted. (§ 503.) Under section 508, "[e]very clerk, agent, or servant of any
person who fraudulently appropriates to his own use, or secretes with a fraudulent intent
42
to appropriate to his own use, any property of another which has come into his control or
care by virtue of his employment as such clerk, agent, or servant, is guilty of
embezzlement." (Ibid.) "The crime of embezzlement requires the existence of a 'relation
of trust and confidence,' similar to a fiduciary relationship, between the victim and the
perpetrator." (People v. Wooten (1996) 44 Cal.App.4th 1834, 1845.)
Theft by larceny is committed by " 'every person who (1) takes possession (2) of
personal property (3) owned or possessed by another, (4) by means of trespass and
(5) with intent to steal the property, and (6) carries the property away.' " (People v. Brock
has no requirement of asportation. Theft by false pretenses requires only 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, supra, 57 Cal.4th
at p. 787.)
Moore's contention that she cannot be convicted for embezzlement under section
508 and embezzlement as a variety of theft under section 484 raises a question of law,
which we review de novo. (In re Taylor (2015) 60 Cal.4th 1019, 1035.)
b. Additional Factual and Procedural Background
In an amended information, the People charged Moore with two counts of grand
theft and personal property from Berkley and Anderson in violation of section 487,
subdivision (a) (counts 1 & 3) and two counts of fraudulent appropriation by clerk, agent,
or employee in violation of section 508 (counts 2 & 4). In addition, counts 5 and 6
43
alleged grand theft from federal government agencies, and count 8 alleged grand theft
from Dr. Markovich.
The defense objected to a jury instruction treating all thefts as if they were the
same, arguing such an instruction would allow the jury to apply all theories of theft to
each charge whether justified by the evidence or not. The defense requested a different
instruction for each count of theft, based on the theory of theft applicable to that count.
The prosecutor stated, "I think the jury is entitled to be instructed on all different
theories of theft that can apply in this case based on their understanding and
determination of what the facts are." The prosecutor said the instruction was merely
designed to tell the jury what the applicable law is.
The trial court said it liked the simplicity of presenting the different theories of
theft to the jury, and instructed the jury: "The defendant has been prosecuted for grand
theft under Counts 1, 3, 5, 6, & 8 under several theories: grand theft by larceny, grand
theft by embezzlement, and grand theft by false pretenses. [¶] Each theory of theft has
different requirements. [¶] 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." The instructions
then set forth the definitions of grand theft by larceny, grand theft by embezzlement, and
grand theft by false pretenses.
The trial court also instructed the jury: "The defendant is charged in Counts 2 & 4
with fraudulent appropriation by a clerk, agent or employee in violation of . . . section
508. To prove that the defendant is guilty of each of these crimes, the People must prove
44
that: [¶] 1. The defendant was an employee/agent of William Berkley under Count 2;
/ Richard Anderson under Count 4; [¶] 2. The defendant committed grand theft by
embezzlement of property with a value in excess of $950 or more from William Berkley
under Count 2/ from Richard Anderson under Count 4; and [¶] 3. The property taken
came into the defendant's control by virtue of her employment." The jury also received
CALCRIM No. 1806, which describes the elements of embezzlement under sections 484
(theft) and 503 (embezzlement).
In instructing the jury about the elements of proof of grand theft by embezzlement
and embezzlement, each of the three jury instructions stated: "[T]he People must prove:
[¶] 1. An owner or the owner's agent entrusted his property to the defendant; [¶] 2. The
owner or owner's agent did so because he trusted the defendant; [¶] 3. The defendant
fraudulently converted or used that property for her own benefit; [¶] AND [¶] 4. When
the defendant converted or used the property, she intended to deprive the owner of its
use."
During closing argument, the prosecutor told the jury there were three different
theories of theft that applied under counts 1, 3, 5, 6 and 8 — theft by larceny, theft by
embezzlement, and theft by false pretenses. The jury could use multiple theories or a
single theory to determine that the defendant unlawfully took money from the people
named in the counts.
In verdict forms for counts 1 and 3 (grand theft), the jury found the defendant
guilty of the crime of grand theft of personal property, in violation of section 487,
subdivision (a). In counts 2 and 4 (embezzlement), the jury found the defendant guilty of
45
the crime of fraudulent appropriation by clerk, agent or employee, in violation of section
508.
c. Analysis
Moore contends she cannot be convicted of both grand theft of personal property
(§§ 484, 487) and embezzlement by a clerk, agent or employee (§ 508) because they are
the same crime and in her circumstances, were based on the same conduct. She argues
embezzlement is not an independent crime but merely an alternative definition of theft.
We reject the argument that embezzlement is merely a variety of theft and not an
independent crime. "[T]he California Legislature's consolidation of larceny, false
pretenses, and embezzlement into the single crime of theft did not change the elements of
those offenses . . . ." (People v. Williams, supra, 57 Cal.4th at p. 786.) " 'Although the
offense of theft has been substituted for the offenses of larceny, embezzlement and
obtaining money or property by false pretenses, no elements of the former crimes have
been changed. The elements of the former offenses of embezzlement and larceny and the
distinction between them' continue to exist." (People v. Nazary (2010) 191 Cal.App.4th
727, 741 (Nazary).) In Nazary, this court held that a defendant may be convicted of both
embezzlement, in violation of section 508, and grand theft by an employee, in violation
of section 487, subdivision (b)(3). (Nazary, at p. 742.) This court stated, "[T]he offense
of grand theft by an employee is essentially the same as the offense of grand theft by
larceny, with the additional finding that the defendant was an employee of the victim."
(Id. at p. 741.)
46
Here, in contrast to Nazary, the jury instructions for grand theft did not contain an
instruction for grand theft by employee, which does not require the property to have been
entrusted to the defendant, and is therefore a different crime than embezzlement.
(Nazary, supra, 191 Cal.App.4th at p. 742.) Instead, the jury was given an instruction on
"grand theft by embezzlement," which included, word for word, the same elements
necessary to sustain a conviction on a charge of embezzlement. Thus, Moore's argument
her convictions for grand theft and embezzlement were based on the same conduct and
describe the same crime has merit.
"In deciding whether multiple conviction is proper, a court should consider only
the statutory elements." (Reed, supra, 38 Cal.4th at p. 1229.) "Under the elements test, if
the statutory elements of the greater offense include all of the statutory elements of the
lesser offense, the latter is necessarily included in the former." (Id. at p. 1227.) Here, the
jury instruction on the crime of grand theft by embezzlement included all the elements of
embezzlement. Under the elements test set forth in Reed, we conclude that multiple
conviction on theories of grand theft by embezzlement and embezzlement based on the
same set of facts is improper.
When one of the theories presented to a jury is legally inadequate, reversal
generally is required unless " 'it is possible to determine from other portions of the verdict
that the jury necessarily found the defendant guilty on a proper theory.' " (People v.
Perez (2005) 35 Cal.4th 1219, 1233 (Perez).) In addition to a theory of grand theft by
embezzlement, the jury was instructed on theories of grand theft by larceny and grand
theft by false pretenses. Here, the record does not indicate on which theory or theories
47
the jury convicted Moore of grand theft on counts 1 and 3.11 " '[W]hen the prosecution
presents its case to the jury on alternate theories, some of which are legally correct and
others legally incorrect, and the reviewing court cannot determine from the record on
which theory the ensuing general verdict of guilt rested, the conviction cannot stand.' "
(Brock, supra, 143 Cal.App.4th at p. 1282.) Accordingly, we reverse Moore's
convictions for grand theft by embezzlement on counts 1 and 3.
Because we determine defendant's convictions for grand theft (counts 1 & 3) must
be set aside, we need not consider the argument her convictions on counts 1 and 3 should
be reversed because the People introduced evidence that was obtained through an invalid
search warrant, and the trial court erred when it allowed a police detective to opine
Moore was engaged in a criminal enterprise.12
11 Another theory of theft that was presented to the jury, grand theft by larceny, requires trespass, and does not appear to be factually supported by the evidence. "[W]hen one of the theories presented to a jury is factually inadequate, such as a theory that, while legally correct, has no application to the facts of the case, we apply a different standard. [Citation.] In that instance, we must assess the entire record, 'including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.' [Citation.] We will affirm 'unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.' " (Perez, supra, 35 Cal.4th at p. 1233.)
12 In her reply brief, Moore argues the admission of illegally obtained evidence and the detective's opinion tainted the entire trial. We need not address arguments raised for the first time in the reply brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 471, fn. 19 [declining to address additional claims with respect to an argument raised in the opening brief].)
48
D. The Military Benefits Count
Moore contends her conviction for grand theft from the DFAS Survivor Benefit
Plan should be set aside. Moore argues the establishment and enforcement of the
Survivor Benefit Plan is exclusively within the province of the federal government, and a
state court lacks jurisdiction to consider whether a person has defrauded the federal
government. Alternatively, she contends the federal government is not "a person" within
the meaning of the Penal Code, which states "the word 'person' includes a corporation as
well as a natural person." (§ 7.)
1. Additional Factual Background
As we have discussed, the Survivor Benefit Plan is a monthly entitlement paid to a
surviving spouse or the family of a person who dies on active duty. (10 U.S.C. §§1447-
1455.) A surviving spouse who remarries before the age of 55 years is no longer entitled
to receive benefits. (10 U.S.C. § 1450(b)(2).) To determine continued eligibility, a
surviving spouse is required to sign a Certificate of Eligibility (COE) form every year.
After remarrying, Moore signed six COE forms. In each form, she checked a box
stating "I did not marry in the past year." Each COE form stated, "Penalty for presenting
false claims or making false statements in connection with claims. Fine of not more than
$10,000 or imprisonment for not more than 5 years, or both ([18 U.S.C. §] 1001)."
Moore, who is less than 55 years old, received a total of $74,829 from DFAS
while remarried.
49
2. Legal Principles and Standard of Review
Moore contends the state lacks jurisdiction to prosecute violations of the Survivor
Benefit Plan. She argues: (1) the governing statute empowers the Secretary of the Navy
to authorize the recovery of amounts erroneously paid under the plan and gives the
Secretary the authority to waive recovery,13 therefore the state cannot prosecute an act
that may not be a crime under federal law; (2) it would be contrary to public policy to
allow every local prosecutor in the 50 states to prosecute virtually every instance of
alleged fraud against the federal government that occurred in that state. Moore, citing
English v. General Electric Co. (1990) 496 U.S. 72, 79 (English), a leading case on
federal preemption,14 states she is not asserting "the provisions for punishment for
13 Section 1453(b) of title 10 of the United States Code provides: "Recovery of an amount erroneously paid to a person under this subchapter is not required if, in the judgment of the Secretary concerned — (1) there has been no fault by the person to whom the amount was erroneously paid; and (2) recovery of such amount would be contrary to the purposes of this subchapter or against equity and good conscience."
14 There are four types of federal preemption: express, field, conflict and obstacle. (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th at 929, 935.) Express preemption arises when Congress explicitly defines the extent to which federal legislation preempts state law. (English, supra, 496 U.S. at p. 78.) "Second, in the absence of explicit statutory language, state law is preempted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a 'scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' or where an Act of Congress 'touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.' " (Id. at p. 79.) Third, conflict preemption exists when simultaneous compliance with both state and federal law is impossible. (Hillsborough County v. Automated Medical Labs. (1985) 471 U.S. 707, 713; Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 815.) Finally, obstacle preemption occurs when the challenged state law " ' "stands as an obstacle to the 50
proven fraud 'occupy the field'." Moore does not explicitly discuss whether the other
types of preemption apply, and her primary arguments are not supported by citation to
case law.
Making a false statement or a false claim to a federal government entity is
proscribed by 18 United States Code section 1001. This provision states: "Whoever, in
any matter within the jurisdiction of any department or agency of the United States,
knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious or fraudulent statements or representations, or
makes or uses any false writing or document knowing the same to contain any false,
fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or
imprisoned not more than five years, or both."
Jurisdiction over violations of 18 United States Code section 1001 is conferred by
18 United States Code section 3231, which provides: "The district courts of the United
States shall have original jurisdiction, exclusive of the courts of the States, of all offenses
against the laws of the United States. [¶] Nothing in this title shall be held to take away
or impair the jurisdiction of the courts of the several States under the laws thereof." The
first sentence of 18 United States Code section 3231 "establishes two general principles:
first, federal district courts may exercise jurisdiction over federal criminal offenses, and
second, state courts may not do so. At a minimum, therefore, 18 United States Code
section 3231 displaces state court jurisdiction over the direct prosecution, conviction, and
accomplishment and execution of the full purposes and objectives of Congress." ' " (Viva!, at p. 936.)
51
imposition of federal criminal punishment for violations of federal criminal statutes." (In
re Jose C. (2009) 45 Cal.4th 534, 542 (Jose C.).) The second sentence of 18 United
States Code section 3231 recognizes that the states are "independent sovereigns
possessing inherent police power to criminally punish conduct inimical to the public
welfare, even when that same conduct is also prohibited under federal law." (Jose C., at
p. 544.)
The power to create and enforce a criminal code is one of the principal
"prerogatives of sovereignty." (Heath v. Alabama (1985) 474 U.S. 82, 93; People v.
Drolet (1973) 30 Cal.App.3d 207, 211 ["In the exercise of its police power, each state has
the right to enact laws to promote public health, safety, morals and welfare."].) "[I]t is
settled law that the same act may constitute an offence against the United States and
against a State, subjecting the guilty party to punishment under the laws of each
government . . . ." (Crossley v. California (1898) 168 U.S. 640, 641.) "Thus, Congress
may pass a law barring a particular act and imposing a specific punishment, and a state
legislature may pass a state law barring the same act and imposing a different specific
punishment, as well as vesting jurisdiction over violations of the state law in its state
courts, without encroaching upon the exclusive jurisdiction of the federal courts to
adjudicate violations of the federal law and impose the federal punishment." (Jose C.,
supra, 45 Cal.4th at p. 545.)
In other words, while 18 United States Code section 3231 "grants federal courts
exclusive jurisdiction over the prosecution of federal offenses [to the federal courts], it
does not do so over the punishment of acts criminalized by federal law; to the extent state
52
law also establishes sanctions for those acts, state courts retain jurisdiction under their
own state laws to hear cases and impose punishment." (Jose C., supra, 45 Cal.4th at
p. 545; People v. Kelly (1869) 38 Cal. 145, 150 ["The State tribunals have no power to
punish crimes against the laws of the United States, as such. The same act may, in some
instances, be an offense against the laws of both, and it is only as an offense against the
State laws that it can be punished by the State, in any event."].)
The Constitution created a federal government of limited powers, while reserving
a generalized police power to the states. (U.S. v. Morrison (2000) 529 U.S. 598, 618,
fn. 8, citing New York v. United States (1992) 505 U.S. 144, 155-157.) In areas of
traditional state regulation, the reviewing court assumes that the historic police powers of
the state are not to be superseded unless that was the clear and manifest intent of
Congress. (Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 974.) Under our federal
system, the states have the principal responsibility for defining and prosecuting crimes.
(Abbate v. United States (1959) 359 U.S. 187, 195.) Theft has been prosecuted in
California since at least 1856. (See, e.g., People v. Taylor & McLane (1856) 1
Cal.Unrep. 19 [theft of golddust].) The theft statutes at issue here, sections 484 and 487,
were enacted in 1872 as part of the original Penal Code of California. (People v.
Salvador (1886) 71 Cal. 15, 16-17.)
We apply a de novo standard of review to questions of law. (Farm Raised Salmon
Cases (2008) 42 Cal.4th 1077, 1089, fn. 10.)
53
3. Analysis
We reject the argument that state trial courts lack jurisdiction over the charge of
theft of military benefits because Congress designated the decision whether an offense
has been committed to the Secretary of the Navy (10 U.S.C. § 1453), and there is no
federal statute, other than the general prohibition against making a false statement under
18 United States Code section 1001, that criminalizes the theft of military survivor
benefits.
The United States Court of Appeals rejected a similar argument in U.S. v. Roberts
(2008 7th Cir.) 534 F.3d 560. In that case, Roberts made false statements to the Veteran's
Administration (VA) to obtain disability compensation benefits, which were paid to him
for several years. When he sought additional benefits, the VA determined he did not
qualify for compensation benefits and discontinued payments. While Roberts's appeal of
the VA decision was pending before the United States Court of Appeals for Veterans
Claims, a federal grand jury returned an indictment charging Roberts with providing
materially false information to the VA to fraudulently obtain veterans' benefits and wire
fraud. (Id. at pp. 566-567.)
On appeal, Roberts argued the district court should have dismissed the criminal
fraud charges for lack of jurisdiction because his case was pending in the Court of
Appeals for Veterans Claims. The Court of Appeals rejected his argument, stating
"[a]lthough both the criminal case in the district court and the benefits appeal before the
Court of Appeals for Veterans Claims involve the question of whether Mr. Roberts made
false statements in his veterans' benefits claims, the criminal prosecution is independent
54
of the administrative review process." (U.S. v. Roberts, supra, 534 F.3d at p. 568; see
also State v. Herrera (2013) 315 P.3d 311, 316 [administrative review of forfeiture of
veterans' benefits is a different matter from a criminal prosecution].) The reviewing court
also stated Roberts did not cite any statutory or regulatory provision that would bar
criminal prosecution until a veteran's benefits adjudication becomes final. (U.S. v.
Roberts, supra, at p. 568.)
Similarly, unless additional state protections against double jeopardy apply
(§ 656), a criminal case in state court is independent of a federal criminal prosecution.
(People v. Homick (2012) 55 Cal.4th 816, 839-840; People v. Belcher (1974) 11 Cal.3d
91, 96-97 [the Constitution does not bar prosecution and conviction for the same act by
both the state and federal governments].) As in U.S. v. Roberts, supra, 534 F.3d 560,
Moore does not cite any statutory, regulatory or case law that would bar a criminal
prosecution, whether state or federal, in favor of the administrative review process. (Cf.
id. at p. 568.)
Moore also argues theft of military benefits cannot be prosecuted in state court
because then "virtually every instance of alleged fraud against the United States would be
a State crime." This is a public policy argument for the Legislature. Unless the statute in
question has been preempted by Congress or dual federal and state prosecution is barred
by a state's enhanced protection against double jeopardy, fraud in obtaining federal
benefits may be subject to criminal prosecution under state law proscribing such conduct.
(See, e.g., State v. Herrera, supra, 315 P.3d at pp. 317-318 [state court has jurisdiction
over fraud prosecution of two defendants for allegedly fraudulently obtaining funds from
55
the VA]; State v. Wallace (2005) 828 N.E.2d 125, 129-130 [prosecution of defendant
under Ohio theft statute for committing theft against the Social Security Administration is
not preempted by federal law]; Commonwealth v. Morris (1990) 575 A.2d 582, 583
[federal law imposing a penalty for improperly obtaining Social Security benefits does
not preempt state criminal prosecution for theft by deception based on same conduct];
People v. Lewis (1998) 693 N.E.2d 916, 920 [state court has jurisdiction to prosecute
theft of fraudulent unemployment benefits from the United States Railroad Retirement
Board]; see also State v. Ochoa-Lara (2015) 362 P.3d 606, 610-612 [prosecution of
defendant under Kansas identity theft statute for falsely using another person's Social
Security card is not preempted by federal law].)
Finally, we address Moore's contention that her conviction for theft of military
survivor benefits must be reversed because the federal government is not a "person"
under section 7 and therefore cannot be the victim of the crime of theft. In making her
argument, Moore relies on the plain meaning of the term "person," and does not cite any
case law in support of her interpretation. However, under California case law, the term
"person" includes a governmental entity.
In People v. Diamondstein (1919) 42 Cal.App. 490, 491, the term "person" was
expressly construed to include a county. The Diamondstein court stated, "While the
political subdivision of the state denominated a 'county' is not in strictness a corporation,
at the same time it requires no stretching of the plain intent of the criminal statute to say
that [the theft statute] was designed to make punishable the stealing of personal properly
from any ownership whatsoever." (Ibid.; see also People v. Shirley (1961) 55 Cal.2d 521,
56
523-524 [upholding grand theft conviction from a county], People v. Strub (1975) 49
Cal.App.3d Supp. 1, 3 [county is a "person" for purposes of criminal prosecution for
welfare fraud], People v. Dale (1966) 239 Cal.App.2d 634, 639 [state agency can be the
victim of theft]; cf. People v. Crow (1993) 6 Cal.4th 952, 957-958 [defrauded county
agency was a victim within the meaning of the restitution statutes].) Moore does not cite
any authority, and we have not located any in our independent research, to support her
argument that a federal governmental agency is not a "person" within the meaning of
section 7 and therefore cannot be the victim of theft.
E. The Markovich Counts
Moore contends her convictions for financial elder abuse and grand theft from
Dr. Markovich should be set aside because the trial court violated her constitutional right
to confront the witnesses against her. In addition, Moore contends the People's theory of
theft by false pretenses was inapplicable as a matter of law, and the conviction for
financial elder abuse should be reversed because section 368, subdivision (d) does not
constitute a separate offense, but instead imposes additional penalties on a person who
has violated any provision of the law proscribing theft, embezzlement, forgery or fraud
when the victim is an elder.
1. Moore Has Forfeited the Claim She Should Have Been Charged with Larceny by Trick, Not Theft by False Pretenses
Moore contends because Dr. Markovich loaned her the funds at issue, the proper
charge was larceny by trick, not theft by false pretenses. The record shows that, at the
end of the trial, the People announced it was not pursuing a conviction for theft based on
57
the theory of larceny by trick. In response, the defense said it had no "issues" with that.
Accordingly, the trial court did not instruct the jury on the theory of larceny by trick. We
conclude that the issue has been forfeited on appeal by Moore's failure to object at trial.
(Dakota H., supra, 132 Cal.App.4th at pp. 221-222.)
2. Financial Elder Abuse Statute Grand Theft Is a Lesser Included Offense to Grand Theft
Moore contends section 368 is a sentencing enhancement that applies when
specified crimes are committed against an elder, and requests this court strike her
conviction for financial elder abuse (count 7). The People concede error on other
grounds. They assert grand theft is a lesser included offense of financial elder abuse, and
ask this court to strike Moore's conviction for grand theft (count 8). The People
acknowledge Moore's convictions for financial elder abuse and grand theft were based on
the same conduct.
At issue is whether section 368, subdivision (d) operates as a separate offense or
as a sentencing enhancement. It appears to be a question of first impression. Reviewing
courts have assumed section 368, subdivision (d) [theft from an elder] is a separate
offense. (See, e.g., People v. Eastburn (2010) 189 Cal.App.4th 1501 [upholding
conviction for financial elder abuse by forgery]; Brock, supra, 143 Cal.App.4th at
pp. 1282-1283 [overturning conviction for theft against an elder on instructional
grounds]. Moore relies on People v. Adams (2001) 93 Cal.App.4th 1192 for the
proposition that section 368, subdivision (b) is a sentencing enhancement and not a
substantive crime. However, Adams interprets section 368, subdivision (b)(3)(A), which
58
sets forth the sentencing structure for a defendant who has committed "an offense
described in [section 368, subdivision (b)(1)]." (Adams, at p. 1198, italics added.)
As relevant here, section 368, subdivision (d) provides: "Any person who is not a
caretaker who violates any provision of law proscribing theft, embezzlement, forgery, or
fraud . . . with respect to the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the victim is an elder or
a dependent adult, is punishable [as set forth]." (Italics added.) Section 368, subdivision
(d)(1) describes the penalties that apply when the value of property exceeds $950;
subdivision (d)(2) applies when the value of the property taken does not exceed $950.
Thus, section 368, subdivision (d)(1) "provides for an increased penalty when the victim
is a member of the protected class. When, as in this case, the defendant is convicted of
stealing more than [$950] from an elder adult, the normal penalty for grand theft is
increased by one year." (Brock, supra, 143 Cal.App.4th at pp. 1281-1282.)
In construing a statute, our principal task is to ascertain the intent of the
Legislature. We do so by first turning to the words themselves, giving them their
ordinary meaning. (People v. Gardeley (1996) 14 Cal.4th 605, 621.) The statutory
language is construed in the context of the statute as a whole and the overall statutory
scheme. Reviewing courts give significance to every word, phrase, sentence, and part of
an act in pursuance of the legislative purpose. (People v. Canty (2004) 32 Cal.4th 1266,
1276-1277.) In determining intent, we look first to the words of the statute, giving the
language its usual, ordinary meaning. If there is no ambiguity in the language, we simply
apply the words as written. (Gardeley, at p. 621.) "[W]e consider portions of a statute in
59
the context of the entire statute and the statutory scheme of which it is a part, giving
significance to every word, phrase, sentence, and part of an act in pursuance of the
legislative purpose." (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1063.)
Viewed in isolation, it is not clear whether the Legislature intended section 368,
subdivision (d) to apply as a sentencing enhancement when a defendant is convicted of
theft, embezzlement, forgery or fraud against an elder adult, or whether the Legislature
intended to describe a substantive offense. However, section 368, subdivision (l), states
"[u]pon conviction for a violation of subdivision (b), (c), (d), (e), or (f), the court shall
also consider issuing an order restraining the defendant from any contact with the
victim . . . ." (Italics added.) Thus, considering the statute of which it is a part, we
conclude that section 368, subdivision (d) constitutes a substantive offense.
The People correctly observe that "[i]f the statutory elements of one offense
include all of the statutory elements of another offense, a defendant cannot be convicted
of both offenses for the same conduct." (Citing Reed, supra, 38 Cal.4th at p. 1229.)
Section 368, subdivision (d) incorporates the crime of theft, thus including all of its
elements in the offense of financial elder abuse. Therefore, we accept the People's
concession and strike Moore's conviction for grand theft against Dr. Markovich.
3. Right of Confrontation
Moore contends the admission of Dr. Markovich's and Cdr. Markovich's
conditional examinations (Markovich examinations) violated her confrontation rights
under the Sixth Amendment to the United States Constitution. She argues California law
permits the use of conditional examinations in lieu of in-court testimony only in limited
60
circumstances, and the People did not meet its burden to exercise good faith and due
diligence to secure the witnesses' attendance at trial. Thus, Moore contends, there was an
inadequate showing that the witnesses were unavailable to testify at trial. Moore asserts
the trial court did not consider the importance of the witnesses' testimony. She further
contends she was unable to effectively cross-examine the witnesses at the time of their
conditional examinations because discovery was not complete, and she could not
impeach Dr. Markovich's testimony with Cdr. Markovich's contradictory statements.
The People respond Dr. Markovich and Cdr. Markovich were unavailable for trial
as a matter of law under Evidence Code section 240, subdivisions (a)(3) [physical or
mental illness or infirmity] and (a)(5) [despite reasonable diligence, proponent of
witness's statement is unable to procure witness's attendance by court process]. The
People state Dr. Markovich was an elderly woman suffering from acute and chronic
medical conditions and Cdr. Markovich was on active duty in Bahrain. In addition,
Moore had a constitutionally sufficient opportunity to cross-examine the witnesses during
their conditional examinations.
a. Additional Factual and Procedural Background
Dr. Markovich's conditional examination occurred on June 1, 2012.15 Defense
counsel objected to the examination on the ground he did not have appropriate pretrial
15 "[T]he prosecution may apply for a court order compelling a material witness to submit to a conditional examination if the witness 'is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will be unable to attend the trial, or is a person 65 years of age or older, or a dependent adult' (§ 1336, subd. (a))." (People v. McCoy (2013) 215 Cal.App.4th 1510, 1519, italics omitted.) 61
discovery. He pointed out that Moore's computers had been seized by the police, and had
years' worth of e-mail and other records that could be helpful to the defense.
The trial court said, "We're at a point now where we're going to do the exam. The
idea is she is going to be around. We're just hedging our bets, right?" The trial court
stated it was proceeding with the conditional examination out of an abundance of caution
and, if a relevant issue arose during discovery, the defense could bring it to the court's
attention. The examination was recorded on video.
Dr. Markovich testified she had a history of high blood pressure, an enlarged
heart, hypertensive cardiovascular disease, severe spinal stenosis in three discs, diabetes,
hypothyroidism, anemia, constant chest pain and shortness of breath. She had had a five-
vessel heart bypass operation in 1999 and was prescribed a variety of medications. After
the conditional examination, the trial court said he was reluctant to order the transcript of
Dr. Markovich's conditional examination at court expense, saying, "I think she is going to
be fine. She looked in good health."
Cdr. Markovich's conditional examination took place on June 24, 2013. He said
he was transitioning "right now" to Commander United States Naval Forces Central
Command in Bahrain, where he would be deployed for 12 months. As a result, he would
not be available to testify at trial, which at that time was scheduled to begin in November
2013. The trial did not start until June 2014.
On May 27 and 28, 2014, the trial court heard pretrial motions, including the
People's motion to admit the Markovich examinations or to allow Dr. Markovich to
testify by videoconference. Moore opposed the admission of the conditional
62
examinations or videoconference on the ground that the prosecution had not exercised
due diligence to produce the witnesses at trial.
In its moving papers the People stated, "Dr. Markovich is 80 years old and in
failing health. She is unable to travel." With respect to Cdr. Markovich the People
stated, "The witness is active duty military and unable to leave his command during the
time set for trial." A letter jointly signed by Cdr. Markovich and Captain E. B. Cashman
was attached to the motion:
"Commander Bobby Markovich, United States Navy, is assigned to Commander U.S. Naval Forces Central Command (COMUSNAVCENT) located in the Kingdom of Bahrain where he serves as the Deputy Future Operations Director.
"Due to his deployed status and the operational tempo of COMUSNAVCENT, [Cdr.] Markovich is unavailable to participate as a live witness for Tara Moore's trial in June. He is critical to the execution of COMUSNAVCENT operations and his absence would cause an operational gap.
"Additionally, due to the nature of [Cdr.] Markovich's work, and the time difference between San Diego and Bahrain, it is not feasible for him to participate in video teleconferencing or telephone testimony for any extended period of time.
"I understand [Cdr.] Markovich provided extensive video testimony in advance of his deployment in anticipation of his unavailability. I respectfully suggest that you consider use of the video testimony in lieu of live testimony due to [Cdr.] Markovich's operational commitment."
The defense argued the letter, particularly its statement that there would be an
"operational gap" if Cdr. Markovich left his command to testify, was insufficient to
satisfy the requirement of unavailability.
63
The trial court said if "the admiral" wanted a witness pulled off the carrier, the
witness would be on the next plane. If "the admiral" did not, the witness would not be
produced. The trial court said it was very difficult to determine military need. With
respect to Dr. Markovich, the trial court advised the prosecution, "You didn't attach
anything regarding her health. She looked pretty darn good two years ago."
The next day, the prosecution submitted a letter, dated May 21, 2014, from Mark
D. Haugen, M.D., stating:
"My name is Dr. Mark Haugen and I have been taking care of Dragica Markovich since March 6, 2013. The patient has been recently asked to travel to San Diego for a court case. The patient has multiple medical problems including coronary artery disease, hypertensive disease with congestive heart failure, lumbar canal stenosis status post-surgery a little over a year ago, sleep apnea, type two diabetes with complications with vascular disease. She has a history of coronary bypass grafting surgery. The patient also has depression with anxiety which makes her health conditions worse. I feel it would not be advisable for my patient to travel to San Diego for a very stressful legal situation. She two years ago when traveling to San Diego had to take nitroglycerin five times due to angina. Since then she still has blood pressures difficult to control and I think the additional stress will make this worse. Also, the stress will make her diabetes worse and putting her out of her routine will make her sleep apnea worse. All of these stresses would put her at risk for heart disease or a heart event. In addition she recently flared her back so traveling would probably throw out her back which was just repaired with surgery. Therefore, I would not advise her to fly for a deposition or any kind of court case."
Defense counsel acknowledged reviewing the letter.16 The trial court turned its
attention to other motions. Later, in ruling on the various motions, the trial court said the
16 The parties argue whether the letter from Dr. Markovich's doctor, Mark Haugen, M.D., was lodged in the record or marked as an exhibit. The People asked the Clerk of the Superior Court to transmit it to this court as an exhibit. It was not included 64
People met its burden to show that Dr. Markovich was unavailable, stating "there is not a
judge in this country that would force her to come down and testify." The trial court
found that Cdr. Markovich was on active duty and was therefore "by law and by
definition, unavailable." The court granted the People's motions to admit the Markovich
examinations in evidence.
Opening arguments in the trial were presented on June 12, 2014, the conditional
examinations were played for the jury on June 16 and 17, the last witness testified on
July 22,17 and closing argument in the trial concluded on July 28.
b. Legal Principles and Standard of Review
"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him." (U.S. Const., 6th Amend.) The United States Supreme
Court has held that "this bedrock procedural guarantee applies to both federal and state
prosecutions." (Crawford v. Washington (2004) 541 U.S. 36, 42 (Crawford); People v.
Cromer (2001) 24 Cal.4th 889, 892 (Cromer) [the confrontation clauses of both the
federal and state Constitutions guarantee a criminal defendant the right to confront the
in the exhibits transmitted to this court. This court made repeated inquires to the Clerk of the Superior Court, who was unable to locate this document. The parties have made no effort to augment, correct or settle the record on appeal. (See Marks v. Superior Court (2002) 27 Cal.4th 176, 192-194 [setting forth procedures to fill in "gaps" in the record]; rule 8.137.) We obtained a copy of the Haugen letter from the Attorney General's office, which was filed with the Superior Court on May 28, 2014. On our own motion, we ordered the record on appeal augmented with the Haugen letter. (Rule 8.155(a)(1)(A).)
17 The parties agreed to allow the defense to present witnesses out of order. As a result, the prosecution reopened its case-in-chief on July 22.
65
prosecution's witnesses].) The right to confrontation is basically a trial right. It includes
both the opportunity to cross-examine and the occasion for the jury to weigh the
demeanor of the witness. (Barber v. Page (1968) 390 U.S. 719, 725 (Barber).)
The right of the accused to confront the witnesses against her is not absolute. An
exception exists when a witness is unavailable and has given testimony subject to cross-
examination at a previous court proceeding against the same defendant. (Cromer, supra,
24 Cal.4th. 889.) California has codified this exception in section 1291, subdivision
(a)(2) of the Evidence Code. This provision states that "[e]vidence of former testimony is
not made inadmissible by the hearsay rule if the declarant is unavailable as a witness,
and" "[t]he party against whom the former testimony is offered was a party to the action
or proceeding in which the testimony was given and had the right and opportunity to
cross-examine the declarant with an interest and motive similar to that which he has at
the hearing." (Ibid.)
As relevant here, "unavailable as a witness" means the declarant is: unable to
testify at the hearing "because of then-existing physical illness or infirmity"; "[a]bsent
from the hearing and the court is unable to compel his or her attendance by its process";
or "absent from the hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure the declarant's attendance by the
court's process." (§ 240, subd. (a)(3), (4), (5).) "[W]hen the requirements of [Evidence
Code] section 1291 are met, the admission of former testimony in evidence does not
violate a defendant's constitutional right of confrontation." (People v. Herrera (2010) 49
66
Cal.4th 613, 621, citing People v. Friend (2009) 47 Cal.4th 1, 67; see Barber, supra, 390
U.S. at pp. 724-725.)
"A witness who is absent from a trial is not 'unavailable' in the constitutional sense
unless the prosecution has made a 'good faith effort' to obtain the witness's presence at
the trial." (People v. Herrera, supra, 49 Cal.4th at p. 622.) The prosecution must show
that its efforts to locate and produce a witness for trial were reasonable under the
circumstances. (Id. at pp. 622-623.) However, " '[t]he law does not require the doing of
a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the
witness' intervening death), "good faith" demands nothing of the prosecution. But if there
is a possibility, albeit remote, that affirmative measures might produce the declarant, the
obligation of good faith may demand their effectuation.' " (Id. at p. 622, quoting Ohio v.
Roberts (1980) 448 U.S. 56, 74, disapproved on another point in Crawford, supra, 541
U.S. at pp. 60-68.)
In determining whether the prosecution's efforts to secure the presence of a
witness meet the constitutional standard of reasonableness, some factors are more
important than others. "First, the more crucial the witness, the greater the effort required
to secure his attendance." (Cook v. McKune (10th Cir. 2003) 323 F.3d 825, 835 (Cook);
accord, People v. Herrera, supra, 49 Cal.4th at pp. 622-623 [circumstances include the
importance of the witness's testimony]; see generally, United States v. Foster (D.C. Cir.
1993) 986 F.2d 541, 543 ["The more important the witness to the government's case, the
more important the defendant's right, derived from the confrontation clause of the Sixth
Amendment, to cross-examine the witness."].) "Second, the more serious the crime for
67
which the defendant is being tried, the greater the effort the government should put forth
to produce the witness at trial." (Cook, at p. 835.) "Third, where a witness has special
reason to favor the prosecution, such as an immunity arrangement in exchange for
cooperation, the defendant's interest in confronting the witness is stronger." (Cook, at
p. 836.) "Fourth, a good measure of reasonableness is to require the State to make the
same sort of effort to locate and secure the witness for trial that it would have made if it
did not have the prior testimony available." (Ibid.)
Other factors bear on whether a witness is unavailable. Where the absence of the
witness results from illness, a court should also consider the nature of the illness and the
probable duration of the illness. (United States v. Faison (3d Cir. 1982) 679 F.2d 292,
297.) Securing the presence of a military witness turns on "the effect that a military
witness's absence will have on his or her unit and whether that absence will adversely
affect the accomplishment of an important military mission or cause manifest injury to
the service." (U.S. v. Jones (N-M. C.M.R. 1985) 20 M.J. 919, 926.)
"We review the trial court's resolution of disputed factual issues under the
deferential substantial evidence standard . . . , and independently review whether the facts
demonstrate prosecutorial good faith and due diligence . . . ." (People v. Herrera, supra,
49 Cal.4th at p. 623, citations omitted.)
c. We Reject the Prosecution's Argument Cdr. Markovich and Dr. Markovich Were Unavailable as a Matter of Law
The People contend Cdr. Markovich and Dr. Markovich (the witnesses) were
unavailable as a matter of law because Cdr. Markovich was on active duty in Bahrain and
68
Dr. Markovich was an elderly woman suffering from acute and chronic medical
conditions. In making this argument, the People disregard the constitutional preference
for in-court testimony. Thus, "[a] witness who is absent from a trial is not 'unavailable' in
the constitutional sense unless the prosecution has made a 'good faith effort' to obtain the
witness's presence at the trial." (People v. Herrera, supra, 49 Cal.4th at p. 622, citing
Barber, supra, 390 U.S. at pp. 724-725.)
In People v. Herrera, supra, 49 Cal.4th 613, the California Supreme Court noted
that Evidence Code section 240, subdivision (a)(5)'s requirement of "reasonable
diligence" was the equivalent of a " 'good faith effort.' " (People v. Herrera, supra, at
p. 622.) Further, even though the term "reasonable diligence" was missing from
Evidence Code section 240, subdivision (a)(4), the Herrera court held that "unavailability
in the constitutional sense nonetheless requires a determination that the prosecution
satisfied its obligation of good faith in attempting to obtain [the witness's] presence."
(People v. Herrera, supra, at p. 623.) Thus, the determination of unavailability must
include an assessment of whether the prosecution made a good faith effort to secure a
witness's presence at trial.
The trial court found that the People met its burden to show that Dr. Markovich
was unavailable, and that Cdr. Markovich was "by law and by definition, unavailable."
The record does not indicate the trial court considered whether the prosecution made a
good faith effort to secure the presence of Cdr. Markovich and Dr. Markovich. There is
no indication the trial court assessed the importance of the witnesses' testimony, the
seriousness of the crime, whether the witnesses had special reason to favor the
69
prosecution, or whether the prosecution had made the same sort of effort to locate and
secure the witness for trial it would have made if it did not have the prior testimony
available. (Cook, supra, 323 F.3d at pp. 835-836.)
This record clearly shows that Cdr. Markovich's and Dr. Markovich's testimony
was crucial to the prosecution. There were no other witnesses to the conversations
between Moore and the Markoviches. The prosecution intended to base its case on
Dr. Markovich's and Cdr. Markovich's testimony. Other evidence merely tended to
corroborate the Markoviches' testimony. Moore was sentenced to seven years on the
Markovich counts. Dr. Markovich was a complaining witness who would benefit from
an order of restitution, as would Cdr. Markovich as her heir.18 Other than making
contact with the witnesses, the record does not reflect what efforts, if any, the prosecution
made to secure their presence at trial. With these observations, we turn our discussion to
whether the trial court erred when it determined Cdr. Markovich and Dr. Markovich were
unavailable.
d. There Is Substantial Evidence to Support a Finding That Dr. Markovich Was Unavailable to Testify
We reject Appellant's contention that there is no evidence to show the nature and
probable duration of Dr. Markovich's medical condition because the Haugen letter was
not marked as an exhibit or lodged with the court. The burden is on the appellant to
produce a complete record for review. Failure to provide an adequate record for review
18 The trial court ordered restitution in the amount of $2,339,000, payable to Dr. Markovich or, in the event of her death, to Cdr. Markovich or his sister.
70
results in forfeiture of the issue on appeal (People v. Dominguez (1981) 121 Cal.App.3d
481, 503), not, as appellant contends, a lack of substantial evidence to support the ruling.
To avoid a claim of ineffective assistance of appellate counsel, on our own motion, we
augmented the record with the Haugen letter. (See fn. 20, ante.)
The Haugen letter permits a reasonable inference that the prosecution asked
Dr. Markovich to travel from Washington State to San Diego to testify at trial.
Dr. Markovich had multiple medical problems including coronary artery disease,
hypertensive disease with congestive heart failure, a fairly recent back surgery, sleep
apnea, type 2 diabetes with complications with vascular disease, and other medical
problems. Dr. Haugen advised against Dr. Markovich traveling to San Diego to testify at
trial, stating the stress would put her at risk for heart disease or a heart event. Thus, there
is substantial evidence to support the trial court's finding Dr. Markovich was unavailable
to testify at trial because of physical illness. (Evid. Code, § 240, subd. (a)(3) [witness is
unable to attend or to testify at the hearing because of then-existing physical illness or
infirmity].) On appeal, Moore questions the validity of the doctor's conclusions for the
first time, and has thus forfeited the argument.
Moore argues she did not have a meaningful opportunity to cross-examine
Dr. Markovich because her conditional examination occurred prior to any discovery in
the case, and therefore the trial court erred when it admitted Dr. Markovich's conditional
examination in evidence. As an example, Moore contends she did not have the
opportunity to impeach Dr. Markovich with Cdr. Markovich's statements contradicting
her testimony. Moore contends the trial court could have ensured she had an adequate
71
opportunity for effective cross-examination by ordering a new conditional examination to
take place in Washington State.
Moore has forfeited the argument there were alternatives to in-person testimony
that would have protected her right of confrontation. The People asked the trial court to
admit Dr. Markovich's conditional examination in evidence or, alternatively, to allow her
to testify by videoconference. The defense opposed allowing Dr. Markovich to testify by
videoconference, and did not propose any alternatives to the admission of the conditional
examination in its opposition papers or at the hearing on the motion. Moore cannot now
complain the trial court erred by not pursuing alternatives to admitting Dr. Markovich's
conditional examination into evidence to protect Moore's confrontation rights.
Further, at the time of the conditional examination, which defense counsel
opposed on the ground of inadequate discovery, the trial court said if a relevant issue
arose during discovery, the defense could bring the issue to the court's attention. Moore
did not identify any issue requiring further cross-examination of Dr. Markovich. Thus,
Moore does not meet her burden to show she was denied a meaningful opportunity to
cross-examine Dr. Markovich.
We conclude the trial court did not err when it determined Dr. Markovich was
unavailable to testify at trial and admitted her conditional examination into evidence.
e. There Is Insufficient Evidence to Show That Cdr. Markovich Was Unavailable
The trial court concluded that securing Cdr. Markovich's presence was entirely
within the discretion of "the admiral," and observed it was difficult to determine military
72
need. As we discussed, the record does not indicate the trial court assessed the
importance of Cdr. Markovich's testimony or considered whether the prosecution had
made a good faith effort to secure his presence at trial.
In criminal trials, " 'unavailability in the constitutional sense does not invariably
turn on the inability of the state court to compel the out-of-state witness's attendance
through its own process, but also takes into consideration the existence of agreements or
established procedures for securing a witness's presence that depend on the voluntary
assistance of another government. [Citation.] Where such options exist, the extent to
which the prosecution had the opportunity to utilize them and endeavored to do so is
relevant in determining whether the obligations to act in good faith and with due
diligence have been met.' " (People v. Foy (2016) 245 Cal.App.4th 328, 346 (Foy),
quoting People v. Herrera, supra, 49 Cal.4th at pp. 626-628; Barber, supra, 390 U.S. at
pp. 723-725 [mere absence of witness from the jurisdiction is not a sufficient ground for
introducing prior testimony because it is often possible to procure the presence of out-of-
state witnesses under modern procedures].)
The record contains no evidence to show the prosecution contacted "the admiral"
or identified a member of the military command with the authority to grant a request for
leave in response to a subpoena to testify at trial. There is nothing in the record to
indicate whether Captain Cashman had the authority to respond to a request for
Cdr. Markovich to appear at trial. The trial court correctly noted it was difficult to
determine military need. However, the trial court need not make that decision. Rather,
the determination of military need is made by the appropriate military command upon a
73
request by the prosecutor to compel the presence of a witness who is serving in the
military. Here, the stated reason for military necessity — that Cdr. Markovich's absence
would cause an "operational gap" — does not appear to meet the standard for compelling
the presence of a military witness, which is "the effect that a military witness's absence
will have on his or her unit and whether that absence will adversely affect the
accomplishment of an important military mission or cause manifest injury to the service."
(U.S. v. Jones, supra, 20 M.J. at p. 926.) Thus, the record does not show that an attempt
to secure Cdr. Markovich's presence would have been futile under the prevailing standard
for military necessity. (Ohio v. Roberts, supra, 448 U.S. at p. 74 ["if there is a
possibility, albeit remote, that affirmative measures might produce the declarant, the
obligation of good faith may demand their effectuation"].)
Further, there is insufficient evidence to support a finding that Cdr. Markovich's
deployment in Bahrain would prevent him from being physically present at trial. At his
conditional examination, which was taken on June 24, 2013, Cdr. Markovich said he was
transitioning "right now" to Bahrain on a 12-month deployment. The record permits the
reasonable inference that at the time of the hearing on the motion to admit the conditional
examination, Cdr. Markovich's 12-month deployment was due to end in four to six
weeks. His letter, dated May 21, 2014, states he was "unavailable to participate as a live
witness for Tara Moore's trial in June." (Italics added.) There is no indication the
prosecution tried to ascertain when Cdr. Markovich's deployment would end and whether
he would be available to testify at the trial in July. Jury selection was not scheduled to
start until the first week of June. The trial court recognized that the Berkley/Anderson
74
allegations would consume the most time. The prosecution in fact was presenting
evidence at trial in the third week in July.
Moore has a "bedrock procedural guarantee" to confront the witnesses against her
at trial. (Crawford, supra, 541 U.S. at p. 42.) In view of the importance of
Cdr. Markovich's testimony and his interest in the outcome of the trial, the lack of
evidence indicating the prosecution contacted the appropriate military command with a
request to allow Cdr. Markovich to testify at trial, and the evidence showing his
deployment was scheduled to end within a short time, we conclude that the trial court
erred in admitting in evidence Cdr. Markovich's conditional examination.
f. The Error in Admitting Cdr. Markovich's Conditional Examination into Evidence Is Harmless Beyond a Reasonable Doubt
Without citation to authority, Moore asserts a confrontation clause error merits
reversal per se. The People contend the conditional examinations were properly admitted
into evidence, and do not address whether any error was prejudicial. We ordered the
parties to submit additional briefing on the issue.
In supplemental briefing, Moore argues the People cannot carry its burden to show
that the constitutional error was harmless beyond a reasonable doubt. She contends
section 532, subdivision (b) provides "the defendant cannot be convicted [of grand theft
by false pretenses] . . . unless the pretense is proven by the testimony of two witnesses, or
that of one witness and corroborating circumstances." Moore maintains all the alleged
misrepresentations were made during telephone conversations between herself,
75
Dr. Markovich and Cdr. Markovich, and without Cdr. Markovich's testimony, there is no
corroborating evidence to support a conviction of grand theft by false pretenses.
The People contend Cdr. Markovich's testimony contributed little to the proof of
Moore's theft from Dr. Markovich, and was not essential to prove Moore's guilt in view
of the other credible evidence against her. In addition to Dr. Markovich's testimony and
the financial documents corroborating her account of the events, Berkley and Anderson
testified Moore never had an interest in the RB property, and the forensic analysis
confirmed that none of Dr. Markovich's money was used for the RB Project.
Under Chapman v. California (1967) 386 U.S. 18, 24, the beneficiary of a federal
constitutional error must prove beyond a reasonable doubt that the error complained of
did not contribute to the verdict. An error that did not contribute to the ensuing verdict is
an error that is " ' "unimportant in relation to everything else the jury considered on the
issue in question, as revealed in the record." ' " (People v. Pearson (2013) 56 Cal.4th
393, 463 (Pearson).) Thus, reversal is required unless the record shows beyond a
reasonable doubt that Moore was not prejudiced by the erroneous admission in evidence
of Cdr. Markovich's conditional examination. (Ibid.)
"To determine whether a confrontation clause violation is harmless beyond a
reasonable doubt, courts consider 'the importance of the witness'[s] testimony in the
prosecution's case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted, and, of course, the overall strength
76
of the prosecution's case.' " (Foy, supra, 245 Cal.App.4th at p. 351, quoting Delaware v.
Van Arsdall (1986) 475 U.S. 673, 684.)
" 'A theft conviction on the theory of false pretenses requires proof 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. Miller (2000) 81
Cal.App.4th 1427, 1440.) If the conviction rests primarily on a single witness testifying
the false pretense was made, the making of the pretense must be corroborated. (Id. at
p. 1441.)
We reject Moore's argument the testimony of a second witness is required to
corroborate the making of the pretense. Instead, "[t]he circumstances connected with the
transaction, the entire conduct of the defendant, and his 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.) Because "the corroborative evidence need
only tend to implicate the defendant in the alleged illegal activity, it may be slight and
entitled to little weight standing alone." (People v. Fujita (1974) 43 Cal.App.3d 454,
470.)
On this record, we conclude that there was ample corroborating evidence of the
making of the pretense and that the erroneous admission of Cdr. Markovich's conditional
examination was harmless beyond a reasonable doubt. Dr. Markovich took
contemporaneous notes during her conversations with Moore and Cdr. Markovich about
the RB Project. In her testimony, Dr. Markovich detailed the dates the defendant asked
77
her for money for the RB Project and the reasons she needed the funds. Those reasons
included needing money for permits, a fire analysis, a traffic safety study, a public safety
study, and to secure the site after a landslide. There is no evidence contradicting
Dr. Markovich's testimony on key points. Cdr. Markovich's testimony duplicated his
mother's testimony about Moore's requests for money for the RB Project.
Berkley's testimony corroborates Dr. Markovich's testimony that Moore made
false statements to her about the RB Project. Berkley testified Moore repeatedly
approached him to invest in the development of the RB property. She told him Anderson
had agreed to sell the property to her at an attractive price. Moore told Berkley she hired
an architect to do a preliminary study and may have a prospective tenant. She advised
Berkley about a soils report, and sent a rendering of a proposed building to him.
Anderson testified he still owned the RB property. He was not involved in developing it
with anyone. Anderson never discussed selling the property to Moore.
The evidence showing the RB Project did not exist is uncontroverted.
Dr. Markovich's testimony about the amount of Moore's requests, and the date on which
they occurred, is corroborated by documentary evidence showing the transfer of funds
from Dr. Markovich's brokerage account to Moore's bank account. Expert forensic
accounting testimony demonstrated that Moore primarily used Dr. Markovich's funds for
her personal expenses, and did not make any expenditures on the RB Project. Berkley
testified that Moore sought his investment in the RB Project, which he later learned did
not exist. Moore's conduct with Berkley is sufficient to corroborate Moore's intent to
defraud. (People v. Ewoldt (1994) 7 Cal.4th 380, 402 [recurrence of similar acts tend to
78
negate claim of innocent mental state, and tends to establish the presence of the criminal
intent accompanying such an act].) Thus, the erroneous admission of Cdr. Markovich's
conditional examination was " ' "unimportant in relation to everything else the jury
considered on the issue in question, as revealed in the record." ' " (Pearson, supra, 56
Cal.4th at p. 463.) We conclude that the constitutional error is harmless beyond a
reasonable doubt. (Foy, supra, 245 Cal.App.4th at pp. 350-351.)
F. Forgery
Moore contends her conviction for forgery must be reversed because falsification
of a brokerage account statement does not constitute forgery and there is not substantial
evidence to support the conviction.
1. Additional Factual and Procedural Background
Moore presented the first page of an altered Morgan Stanley account statement to
Berkley to show she had sufficient means to purchase Jack's. Berkley asked Moore to
explain her ownership interest in the account. Moore said Dr. Markovich and
Cdr. Markovich were "dear friends," and she had unilateral access to funds in the
account.
The original brokerage account statement listed "DRAGICA MARKOVICH TOD
MIRYANA GREGG" on one line, "BOGOLJUB MARKOVICH JR" on the next line,
and "SUBJ TO STA RULES" on the third line. The statement was "FOR MONTH
ENDING SEPTEMBER 30, 2006."
The altered brokerage account statement listed "DRAGICA MARKOVICH" on
the first line, "BOGOLJUB MARKOVICH JR" on the second line, and "TARA
79
MOORE" on the third line. The statement was "FOR MONTH ENDING MAY 31,
2009."
2. Legal Principles and Standard of Review
Section 470 states, in pertinent part that every person who, with the intent to
defraud — (a) knowing that he or she has no authority to do so, signs the name of another
person or of a fictitious person to any of the items listed in section 470,
subdivision (d);19 (b) counterfeits or forges the seal or handwriting of another; (c) alters,
corrupts, or falsifies any record of any will, codicil, conveyance, or other instrument, the
record of which is by law evidence, or any record of any judgment of a court or the return
of any officer to any process of any court; (d) falsely makes, alters, forges, or
counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine,
19 The items listed in section 470, subdivision (d) are: "any check, bond, bank bill, or note, cashier's check, traveler's check, money order, post note, draft, any controller's warrant for the payment of money at the treasury, county order or warrant, or request for the payment of money, receipt for money or goods, bill of exchange, promissory note, order, or any assignment of any bond, writing obligatory, or other contract for money or other property, contract, due bill for payment of money or property, receipt for money or property, passage ticket, lottery ticket or share purporting to be issued under the California State Lottery Act of 1984, trading stamp, power of attorney, certificate of ownership or other document evidencing ownership of a vehicle or undocumented vessel, or any certificate of any share, right, or interest in the stock of any corporation or association, or the delivery of goods or chattels of any kind, or for the delivery of any instrument of writing, or acquittance, release or discharge of any debt, account, suit, action, demand, or any other thing, real or personal, or any transfer or assurance of money, certificate of shares of stock, goods, chattels, or other property whatever, or any letter of attorney, or other power to receive money, or to receive or transfer certificates of shares of stock or annuities, or to let, lease, dispose of, alien, or convey any goods, chattels, lands, or tenements, or other estate, real or personal, or falsifies the acknowledgment of any notary public, or any notary public who issues an acknowledgment knowing it to be false; or any matter described in subdivision (b)."
80
any of the items listed in section 470, subdivision (d), knowing the same to be false,
altered, forged, or counterfeited — is guilty of forgery.
A conviction of forgery requires the person utter, publish or pass the forged
document, knowing the document is false, with the specific intent to defraud another
person. (§ 470, subd. (d); see CALJIC No. 15.01.) "An intent to defraud is an intent to
deceive another person for the purpose of gaining a material advantage over that person
or to induce that person to part with property or alter that person's position by some false
statement or false representation of fact, wrongful concealment or suppression of the
truth or by any artifice or act designed to deceive." (People v. Pugh (2002) 104
Cal.App.4th 66, 72; see Lewis v. Superior Court (1990) 217 Cal.App.3d 379, 385-387
[discussing common law background and history of forgery statute].) " ' "Forgery, at
common law, is the false making or material altering, with intent to defraud, of any
writing which, if genuine, might apparently be of legal efficacy, or the foundation of a
legal liability." ' [Citation.] That is evident in section 470 by the detailed attention which
is shown in the listing of instruments which may be made the subjects of forgery."
(Lewis v. Superior Court, supra, at p. 387.)
The issue of whether a brokerage account statement comes within the meaning of
a forgeable instrument is a question of law. Our review is de novo. (In re T.B. (2009)
172 Cal.App.4th 125, 129 [the meaning of a statute is a question of law that is subject to
de novo review].)
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3. Analysis
Section 470 has four subdivisions. Subdivision (a) pertains to the act of signing
the name of another or fictitious person to an item listed in subdivision (b).
Subdivision (a) does not apply here because Moore was not alleged to have signed the
name of another person or a fictitious person to the brokerage account statement.
Subdivision (b) does not apply because Moore was not alleged to have counterfeited or
forged the seal or handwriting of another person. Similarly, subdivision (c) does not
apply because Moore was not alleged to have altered any of the specific instruments
listed in that subdivision. Finally, although subdivision (d) describes Moore's conduct in
falsely altering a document and attempting to pass it as true and genuine, a brokerage
account statement is not among the items listed in subdivision (d). However, the
statutory listing in section 470, subdivision (d) is not exclusive. (People v. Gaul-
Alexander (1995) 32 Cal.App.4th 735, 742 (Gaul-Alexander).)
The People argue the altered brokerage account statement comes within section
470 because Moore used the account statement to show her ownership interest in those
funds and to deceive Berkley into agreeing to a financial transaction. The People claim
the brokerage account statement comes within the meaning of section 470 because it is an
instrument that "if genuine, would create some legal right or obligation" and presenting it
to another person would "have the effect of defrauding one who acts upon it as genuine."
(Gaul-Alexander, supra, 32 Cal.App.4th at pp. 741, 742.)
We are not persuaded by the People's argument. "Making virtually any kind of
false document affords an inference that the maker intends to deceive someone.
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However, only a document with apparent legal efficacy is naturally suited to perpetrate
the kind of deception that is strictly speaking a defrauding." (Lewis v. Superior Court,
supra, 217 Cal.App.3d at p. 388.) An instrument is defined as a " 'written paper or
instrument signed and delivered by one person to another transferring the title to or
creating a lien on property, or giving a right to a debt or duty.' " (People v. Tate (1997)
55 Cal.App.4th 663, 666, quoting Hoag v. Howard (1880) 55 Cal. 564, 565.) In contrast,
a brokerage account statement does not create some legal right or obligation as would, for
example, a check drawn on the brokerage account, a promissory note, or a certificate of
shares. A forged document that was intended to influence the judgment of another
person, but does not create some apparent legal right or obligation, cannot have the effect
of defrauding that person within the meaning of the forgery statute. (People v. Lewis,
supra, at p. 388.)
Our conclusion that a brokerage account statement does not come within the
meaning of section 470 is supported by the well-settled rule that a general statutory
provision is controlled by a special, more specific statutory provision. (People v.
Superior Court (Jimenez) (2002) 28 Cal.4th 798, 808.) In section 523a, the Legislature
criminalized the making of written false statements concerning a person's financial
condition, which is precisely what Moore is alleged to have done. Section 532a provides
in relevant part:
"Any person who shall knowingly make or cause to be made, either directly or indirectly or through any agency whatsoever, any false statement in writing, with intent that it shall be relied upon, respecting the financial condition, or means or ability to pay, of himself or herself, or any other person, firm or corporation, in whom he or she is interested, or for whom
83
he or she is acting, for the purpose of procuring in any form whatsoever, either the delivery of personal property, the payment of cash, the making of a loan or credit, the extension of a credit, the execution of a contract of guaranty or suretyship, the discount of an account receivable, or the making, acceptance, discount, sale or endorsement of a bill of exchange, or promissory note, for the benefit of either himself or herself or of that person, firm or corporation shall be guilty of a public offense." (Id., subd. (1).)
The Legislature did not include the making of false financial statements of the
type described in section 532a in the forgery statute. " 'Where a statute referring to one
subject contains a critical word or phrase, omission of that word or phrase from a similar
statute on the same subject generally shows a different legislative intent.' " (In re
Gerald J. (1991) 1 Cal.App.4th 1180, 1188.) The defendant is entitled to the benefit of
every reasonable doubt, whether it arises out of a question of fact, interpretation of
words, or construction of statutory language. (People v. Davis (1981) 29 Cal.3d 814,
828; In re Rosalio S. (1995) 35 Cal.App.4th 775, 781.)
The cases cited by the People do not assist them. In Gaul-Alexander, a county
parole agent forged a removal order from prison to the county jail in an attempt to
facilitate his escape. (Gaul-Alexander, supra, 32 Cal.App.4th at p. 739.) This was a
violation of subdivision (c) of section 470, respecting court documents, which is not
applicable here. In People v. Russel (1963) 214 Cal.App.2d 445, the defendant forged
another person's signature to obtain college transcripts. There is no evidence to show that
Moore forged another person's signature on the brokerage statement. People v. Thorn
(1934) 138 Cal.App. 714 concerns a complex scheme in the early 1930's in which the
defendant made false entries in the accounts receivable ledger of his company, increased
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the cost of machinery by falsifying receipts, and made other false entries and deposits in
order to increase his company's credit balance and personally profit from the difference
between the real and fictitious cost of the machinery. (Id. at pp. 728-730.) While this
scheme is similar to many of Moore's embezzlement practices, it bears no resemblance to
the charge of forgery for which she was convicted.
We conclude that falsification of a brokerage account statement does not
constitute forgery within the meaning of section 470. Accordingly, we reverse Moore's
conviction for forgery.
G. The Aggravated White Collar Crime Enhancement
Moore claims that the Berkley/Anderson, the military benefits, and the Markovich
counts involved different methods of commission and were not interrelated, and therefore
did not constitute a pattern of related felony conduct within the meaning of section
186.11, subdivision (a)(2). She argues the aggregation of disparate counts resulted in the
imposition of an unduly harsh sentence.
"The purpose of the aggravated white collar crime enhancement [is] to provide a
mechanism for greater punishment for criminals who engage in a pattern of fraudulent
activity that results in a large amount of accumulated takings." (People v. Williams
(2004) 118 Cal.App.4th 735, 747.) Section 186.11 provides: "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
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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)." (§ 186.11, subd. (a)(1).)
" '[P]attern 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." (§ 186.11, subd. (a)(1).) "If the pattern of related felony
conduct involves the taking of, or results in the loss by another person or entity of, more
than five hundred thousand dollars ($500,000), the additional term of punishment shall be
two, three, or five years in the state prison." (§ 186.11, subd. (a)(2).)
Moore's contention she did not engage in a pattern of related felony conduct is
without merit. The record shows that Moore engaged in crimes of theft against Berkley,
Anderson, Dr. Markovich and the Department of Defense. All of the victims were
deceived by "a pattern of fraudulent activity that result[ed] in a large amount of
accumulated takings." (People v. Williams, supra, 118 Cal.App.4th at p. 747.) Moore
defrauded each victim on two or more separate occasions, and used part of the funds
obtained from each victim to cover up her thefts from her individual victims. Moore's
pattern of thefts was interrelated, and did not occur as isolated events. (§ 186.11, subd.
(a)(1).)
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DISPOSITION
We reverse the convictions on count 1 (Berkley grand theft), count 3 (Anderson
grand theft, count 8 (Markovich grand theft) and count 10 (forgery). In all other respects,
the judgment is affirmed. Because section 654 no longer bars the imposition of sentence
on count 2 (Berkley embezzlement) and count 4 (Anderson embezzlement), the matter is
remanded for resentencing and modification of the abstract of judgment.
IRION, J.
WE CONCUR:
BENKE, Acting P. J.
MCDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court reversed the defendant's convictions for grand theft (counts 1, 3, and 8) and forgery (count 10), while affirming the judgment in all other respects. The court held that grand theft is a lesser included offense of financial elder abuse, that the jury instructions on theft were ambiguous, and that a brokerage account statement does not constitute a document or instrument within the meaning of Penal Code section 470.
Issues
Whether the trial court erred in consolidating unrelated offenses for trial.
Whether the trial court violated the defendant's Sixth Amendment right to confront witnesses by admitting conditional examinations.
Whether grand theft is a lesser included offense of financial elder abuse.
Whether a brokerage account statement constitutes a document or instrument under Penal Code section 470.
Disposition. Affirmed in part, reversed in part, and remanded for resentencing.
Quotations verified verbatim against the opinion
“We conclude that Moore's convictions for grand theft from Berkley and Anderson (counts 1 & 3) must be reversed.”
“We also conclude that the trial court erred when it determined Cdr. Markovich was unavailable to testify as a witness at trial and admitted into evidence his conditional examination.”
“Finally, we conclude that a brokerage account statement is not a document or instrument within the meaning of section 470, and necessarily reverse Moore's conviction for forgery (count 10).”