People v. Moore CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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.

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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.

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 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

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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.

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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.

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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

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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

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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

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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

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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

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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.

Cuccia (2002) 97 Cal.App.4th 785, 796 ["theft ' "includes larceny, embezzlement,

larceny by trick, and theft by false pretenses" ' "].) Thus, we are not persuaded by

Moore's assertion that the trial court abused its discretion by consolidating the

Berkley/Anderson and Markovich counts solely on the basis that each count alleged theft.

(People v. Bradford (1997) 15 Cal.4th 1229, 1315 ["Because both offenses involved

16
murder and thus belonged to the same class of crimes, the statutory requirements for

joinder were satisfied."]; Kraft, at p. 1030 [stating murder offenses were of the same

class].)

4. Consolidation Is Also Proper Under the "Connected Together in Their
Commission" Test

We reject Moore's argument that consolidation of the Berkley/Anderson and

Markovich counts was improper because the offenses were not "connected together in

their commission." (§ 954.) We are not persuaded by Moore's argument that the

consolidated offenses lack a " 'common element of substantial importance' " (Kemp,

supra, 55 Cal.2d at p. 475), because the Anderson/Berkley counts alleged Moore

fraudulently kept money to which she was not entitled, and the Markovich counts alleged

Moore fraudulently took money which she otherwise would not have been given. This

narrow distinction is not relevant for purposes of determining whether the alleged

offenses are "connected together in their commission" (§ 954).

The California Supreme Court states "the Legislature intended a very broad test

for joinder in employing the language ' "connected together in their commission," as that

phrase is used in Section 954.' " (Alcala, supra, 43 Cal.4th at p. 1217, italics added.)

Here, as in other cases, the alleged offenses have the important common element of

illegally depriving another person of his or her property. (Mendoza, supra, 24 Cal.4th at

p. 160 [robberies and commercial burglaries all involved the intent to illegally obtain

property]; Lucky, supra, 45 Cal.3d at p. 276 [consolidation is appropriate where the intent

17
to feloniously obtain money from others " 'runs like a single thread through the various

offenses' "].)

The evidence in the record shows that the Berkley/Anderson and the Markovich

offenses are "connected together in their commission." (§ 954) The time frame within

which the consolidated offenses were allegedly committed shows a continuing course of

criminal conduct. (Mendoza, supra, 24 Cal.4th at p. 160.) Forensic evidence establishes

that Moore used some of the funds she obtained from Dr. Markovich to cover some of

her thefts from Berkley and Anderson, and that she used funds embezzled from Berkley

to make payments to Dr. Markovich. Those payments allowed Moore to perpetuate the

thefts; they bought her more time and more money. In addition, Moore's victims were

similar in that they trusted her. Thus, we conclude that consolidation is also appropriate

under the "connected together in their commission" test under section 954.

5. Moore Does Not Make a Clear Showing of Potential Prejudice

Moore does not meet her burden on appeal to make a clear showing of prejudice.

The cross-admissibility of the evidence between the Berkley/Anderson and the

Markovich counts is sufficient to negate prejudice without any further showing. (Jenkins,

supra, 22 Cal.4th at p. 948.) Here, the evidence would have been admissible under

Evidence Code section 1101 in separate trials on each of the counts. Moore used the

same bank account in each case. Forensic analysis of her bank account showed she gave

a portion of Dr. Markovich's money to Anderson and Berkley. Contrary to Moore's

assertion that the forensic accounting evidence was not relevant to show she defrauded

Dr. Markovich, the forensic evidence was relevant, if not necessary, to prove that the

18
funds Moore obtained from Dr. Markovich for the RB project were not intended to be,

nor were they, used for that purpose. In addition, the forensic evidence shows that Moore

used money she embezzled from Berkley to help her make monthly payments to

Dr. Markovich, thereby allowing her to fraudulently obtain additional funds from her

mother-in-law. Evidence about the RB Project was admissible in both cases. Evidence

in each case supports the inference Moore intended to support her lifestyle by taking

money from others. Thus, the cross-admissibility of the evidence is sufficient to negate

prejudice without any further showing. (Ibid.)

The record shows that consolidation of the charges allowed the parties to present

and contest the evidence in a single proceeding. Moore's alleged crimes spanned many

years. The presentation of forensic evidence concerning Moore's deposits and

expenditures in her bank account was detailed and time consuming, and consolidation

was in the interests of judicial economy. (People v. Ochoa, supra, 26 Cal.4th at p. 423;

Soper, supra, 45 Cal.4th at p. 772.) Thus, the trial court did not abuse its discretion when

granted the People's motion to consolidate the Anderson/Berkley and Markovich counts.

6. Moore Has Forfeited the Claim Concerning the Consolidation of the
Military Benefits Counts with the Other Counts

The hearing on the People's motion to consolidate the Anderson/Berkley and

Markovich counts was held on June 1, 2012. At the hearing and in its motion, the People

stated its intent to file charges against Moore for theft of military benefits. Moore was

arraigned on those charges on June 6. Moore did not file a motion to sever the military

benefits count from the Anderson/Berkley and Markovich counts. The trial court does

19
not have a sua sponte duty to consider severance. (People v. Ramirez (2006) 39 Cal.4th

398, 438.) Thus, Moore has forfeited the argument that the military benefits count was

improperly joined with the other counts. (In re Dakota H. (2005) 132 Cal.App.4th 212,

221-222 (Dakota H.) [party forfeits the right to claim error as grounds for reversal on

appeal when he or she fails to raise the objection in the trial court].)

B. Trial Error Claims

1. Character Evidence

Moore contends the trial court erred in admitting evidence of uncharged crimes,

and other character evidence, including evidence about her first marriage, a pregnancy,

and an opinion she was a bigamist and a drug abuser. Moore asserts the People used

personal allegations about her character to create negative perceptions of her "as a

person, a woman, and a mother." She argues the admission of character evidence and

evidence of uncharged crimes was prejudicial because it allowed the prosecutor to argue

Moore was profoundly dishonest and acted in conformity with her character.

2. Legal Principles

"Character evidence, sometimes described as evidence of propensity or disposition

to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a

specified occasion. (Evid. Code, § 1101, subd. (a).)" (People v. Harris (2013) 57 Cal.4th

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

them.' " ' " (People v. Seminoff (2008) 159 Cal.App.4th 518, 525 (Seminoff), quoting

People v. Reynolds (1984) 152 Cal.App.3d 42, 46 (Reynolds).)

"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." (Fost,

supra, 80 Cal.App.4th at p. 735.) Striking the direct examination is a proper remedy.

However, the court should exercise some discretion in the matter. (People v. Sanders

(2010) 189 Cal.App.4th 543, 554 (Sanders), citing 1 McCormick, Evidence (6th ed.

2006) Cross-examination, § 19, pp. 110, 111.)

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

(2006) 143 Cal.App.4th 1266, 1275 (Brock).) Theft by false pretenses, unlike larceny,

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

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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

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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)."

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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

84
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

85
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.

87