Filed 7/26/16 P. v. Wiggins CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A143183
v.
GREGORY K. WIGGINS, (San Francisco County
Super. Ct. No. SCN218951)
Defendant and Appellant.
Defendant Gregory K. Wiggins appeals following his convictions for multiple
counts arising primarily from his procurement of grant deeds transferring real property
from two separate victims—both under conservatorship at the time—to him. He argues
(1) certain counts are barred by the statute of limitations, (2) the trial court erred in failing
to instruct the jury on the claim-of-right defense, (3) various evidence was improperly
admitted, and (4) no substantial evidence supports enhancements alleging he took
property valued at over $500,000. We affirm.
BACKGROUND
Information
The operative second amended information charged appellant with eight counts.
Count 1 charged him with grand theft of a loan for $540,000, the property of Rosia Hart
and World Savings Bank. (Pen. Code, § 487, subd. (a).)1 Counts 2 through 6 alleged,
1
All subsequent section references are to the Penal Code, unless otherwise indicated.
1
with respect to victim Rosia Hart: theft, embezzlement, forgery, or fraud on an elder
(§ 368, subd. (d); count 2); filing a false instrument, a grant deed (§ 115, subd. (a); count
3); making a false statement to a notary public (§ 115.5, subd. (b); count 4); identity theft
(§ 530.5, subd. (a); count 5); and embezzlement of a $540,000 loan (§ 503; count 6).
Counts 7 and 8 involved victim Kenneth Wilson: filing a false instrument, a grant deed
(§ 115, subd. (a); count 7); and identity theft (§ 530.5, subd. (a); count 8). As to all
counts, the information alleged appellant engaged in a pattern of related felony conduct
involving the taking or loss of more than $500,000 (the white collar crime enhancement).
(§ 186.11, subd. (a)(2).) It further alleged as to counts 1 through 6 that appellant took
property exceeding $200,000. (§ 12022.6, subd. (a)(2).)
Evidence Regarding Kenneth Wilson
In 2004, a court appointed a conservator of the person and the estate for Wilson.
A conservatorship of the person means the conservator takes care of the personal needs of
the conservatee, such as medical needs. A conservatorship of the estate means the
conservator takes care of the conservatee’s financial matters. Wilson’s conservatorship
proceedings were initiated because he gave away $70,000 to someone who claimed to be
his godson. As of mid-2005, Wilson exhibited behaviors such as having no memory of a
meeting that happened one week earlier and believing his long-deceased mother was still
alive.
Wilson consistently identified appellant as a long time friend. A case manager for
Wilson’s conservator testified appellant was present several times when she met with
Wilson at Wilson’s home. Wilson told the case manager that appellant had made
improvements to his home, and the case manager saw evidence of painting inside
Wilson’s house. Another employee of Wilson’s conservator testified Wilson did not
have any family or other friends in his life.
Around October 2005, Wilson’s court-appointed probate attorney, Judith Hehir,
learned that Wilson was attempting to transfer title to his house to himself and appellant.
Shortly thereafter, in October 2005, Hehir met with Wilson and appellant. When
appellant was present, Wilson told Hehir he wanted to transfer the property to himself
2
and appellant, but when Hehir asked Wilson outside of appellant’s presence whether he
wanted to give away his property, he said he was not sure. Hehir told Wilson and
appellant that Wilson could not transfer his property while he was under a
conservatorship. Appellant said he did not know that but he now understood.
In November 2005, Wilson signed a deed transferring his interest in his residence
from himself as the sole owner to himself and appellant as joint tenants. In a joint
tenancy, each joint tenant has a 50 percent interest in the property and inherits the other
tenant’s share. The deed was notarized in the presence of appellant and Wilson, neither
of whom informed the notary that Wilson was under a conservatorship at the time. The
notary testified that, had she known Wilson was conserved, she would not have notarized
the document because conservatees cannot “sign for themselves” to transfer real property.
After learning of this transaction, Hehir met again with appellant and Wilson and
was again “very clear” that Wilson could not transfer his property. In December 2005, an
attorney for Wilson’s conservator wrote appellant a letter informing him that Wilson was
under a conservatorship and suffering from dementia, and that appellant could not take
property from him without going through the conservator. In January 2006, a lawyer
retained by appellant sent a written response to this letter. Wilson’s conservator
subsequently filed a petition to rescind the grant deed; in December 2006, the deed was
ordered rescinded.
Wilson was deceased at the time of trial but a video recording of his 2007
conditional examination was played for the jury.2 He did not recall signing the 2005 deed
or that he was conserved, and believed he had last seen his long-deceased mother that
morning. Although he had never thought about making appellant a co-owner of his
house, if his mother were no longer alive he might do so.
Evidence Regarding Rosia Hart
In May 2006, Rosia Hart was placed under a temporary conservatorship of her
estate. Dr. Abraham Nievod, a neuropsychologist, examined Hart in the summer of 2006
2
A transcript of the recording was admitted into evidence.
3
and testified she had early dementia, impaired memory, and below average intelligence.
He concluded Hart was extremely vulnerable to being manipulated and lacked
contractual capacity. Hart told Dr. Nievod that she could not maintain her accounts and
depended on appellant to handle her financial matters.
Herbert Thomas was appointed as her temporary conservator. In June 2006,
Thomas met with Hart and appellant at a laundromat Hart operated in a commercial
property she owned on Newhall Street in San Francisco (the Newhall property). Thomas
learned that before the conservatorship, Hart and appellant had entered into a business
venture to develop the Newhall property. As part of this venture, in 2005 Hart deeded the
Newhall property to an LLC. An operating agreement for the LLC showed that Hart
contributed all the capital and had all the voting power; appellant contributed “services”;
and the economic interests were split evenly between the two. Also in 2005, appellant
gave Hart a joint tenancy in a residential property he owned in Hercules (the Hercules
property). Hart told an investigating officer in 2011 that appellant gave her the interest in
the Hercules property as “collateral” because he had no money to put into their joint
venture.
At the June 2006 meeting, Thomas explained to Hart and appellant that he had
been appointed Hart’s conservator and would be taking over her finances. Appellant was
present at the November 16, 2006 court hearing at which Hart’s temporary
conservatorship became permanent. Four days later, on November 20, 2006, Hart and
appellant signed a quitclaim deed transferring title to the Hercules property from Hart and
appellant as joint tenants to appellant as his sole property. On January 7, 2007, Hart and
appellant signed a grant deed conveying the Hercules property to appellant. A few days
later, appellant obtained a loan of $540,000 from World Savings Bank, secured by a deed
of trust on the Hercules property.3
Hart testified at trial. She met appellant around 2004. Appellant helped her in the
laundromat and she trusted him with her bills and business income. Hart testified that
3
The parties stipulated that the loan payments were current at the time of trial.
4
around 2005 to 2007, appellant would bring her documents to sign and she would sign
them because she trusted him. When she signed the deed granting the Newhall property
to the LLC, she did not know what she was signing. Hart testified she was with appellant
when he removed her name from the Hercules property, but she did not know what the
quitclaim deed was when she signed it and she did not recognize the grant deed.
Appellant presented testimony by a police inspector who interviewed Hart in
2011. Hart told the inspector that appellant approached her around 2005 about a business
venture involving the Newhall property and she agreed. Appellant told her he had no
money but would give her an interest in the Hercules property as collateral. Later,
appellant said he was going to take her off the Hercules property and she agreed,
assuming he would quit his joint venture in the Newhall property.
Jury Verdict, Sentencing, and Post Trial Motions
The jury found appellant guilty on all counts and found true all of the
enhancements. The trial court imposed a term of four years on count 2 and an additional
five years for the white collar crime enhancement. Concurrent terms of three years, plus
concurrent terms of five years for the white collar crime enhancements, were imposed on
counts 1, 3, and 7. The court stayed the terms on the remaining counts and white collar
crime enhancements pursuant to section 654; the section 12022.6 enhancements (alleging
a loss over $200,000) were stricken under section 1385. The court imposed a fine of
$1,080,000 pursuant to the white collar crime enhancement. (§ 186.11, subd. (c).)
Shortly after sentencing, appellant filed a motion to dismiss count 1 as barred by
the statute of limitations because the information did not allege, and the People did not
prove, that World Savings Bank could not have reasonably discovered the theft before
February 17, 2007, four years before the prosecution of the crime commenced. Appellant
also argued that, if the court dismissed count 1, the white collar crime enhancements as to
all counts must be stricken. The court granted the motion to dismiss count 1 but declined
to strike the white collar crime enhancements as to the remaining counts or reduce the
white collar crime enhancement fine.
5
DISCUSSION4
I. Statute of Limitations
Appellant argues Counts 2 through 6 (relating to Rosia Hart) are barred by the
statute of limitations as a matter of law or, in the alternative, the trial court erred in failing
to submit the issue to the jury. We affirm.
A. Background
On November 20, 2006, Hart conveyed her interest in the Hercules property to
appellant by a quitclaim deed. Andrew Schultz, the attorney for Hart’s conservator,
learned of the quitclaim deed on or before December 20, 2006. On January 6, 2007, Hart
signed the grant deed conveying her interest in the Hercules property to appellant. On
January 17, 2007, appellant obtained the $540,000 loan secured by the deed of trust on
the Hercules property.
Schultz testified that he first learned of the grant deed and loan on February 21,
2007. He further testified that, after learning of the quitclaim deed in December 2006, he
did not look into other transfers of title on the Hercules property. He explained, “this was
certainly a surprise that there had been a deed recorded. We did not expect there to be
further activity, particularly a loan, because we had recorded [the conservator’s] Letters
of Conservatorship on title.”5 The Letters of Conservatorship were recorded specifically
in reference to the Hercules property. Schultz continued, “when I record the Letters in
the chain of title, what I thought was, ‘Well, these Letters are on title. If there’s a title
company that goes looking, they’re gonna see this and they’re gonna know there’s a
conservatorship and Ms. Hart lacks capacity, and they won’t undertake any transactions
4
In his reply brief, appellant argues the People’s brief should be stricken for exceeding
the word limit. Appellant relies on the word limit set forth in California Rules of Court
rule 8.204; however, that rule applies to civil appeals. The People’s brief is well within
the word limit for briefs filed in criminal appeals. (Cal. Rules of Court, rule 8.360(b)(1).)
5
Letters of Conservatorship are issued by the court following the appointment of a
conservator and provide evidence of the conservator’s authority.
6
that involve her.’ So -- and so that’s why, because the Letters had been recorded, we
thought, you know, she was protected to that extent.”
Appellant does not dispute that counts 2 through 6 were based on the January 2007
grant deed and/or deed of trust, rather than the November 2006 quitclaim deed.
B. Analysis
Appellant contends the applicable statute of limitations is four years after the
discovery of the commission of the offense or within four years after the completion of
the offense, whichever is later. (§§ 801.5, 803, subd. (c).) The People do not dispute this
is the applicable statute of limitations for purposes of counts 2 and 6, and we will assume,
without deciding, that this statute of limitations applies to counts 2 through 6.6
“In applying the discovery requirement, ‘[L]ack of actual knowledge is not
required to bring the “discovery” provision . . . into play. The crucial determination is
whether law enforcement authorities or the victim had actual notice of circumstances
sufficient to make them suspicious of fraud thereby leading them to make inquiries which
might have revealed the fraud.’ ”7 (People v. Petronella (2013) 218 Cal.App.4th 945,
956.) The People have the burden of proving the prosecution is not barred by the statute
of limitations by a preponderance of the evidence. (People v. Smith (2002) 98
Cal.App.4th 1182, 1187 (Smith).)
Both parties agree that prosecution of these counts for statute of limitations
purposes commenced on February 17, 2011, when an arrest warrant issued. (See § 804.)
6
The People argue the statute of limitations for counts 3 through 5 is five years pursuant
to section 801.6. We need not decide this issue because we conclude, assuming the
statute of limitations is four years, no reversible error occurred.
7
“For purposes of determining whether a particular person’s discovery of facts will be
deemed to trigger the running of the statute of limitations,” the criminal discovery
statutes extend to “ ‘those persons who are clothed with a status imposed by law [such as
a victim’s] guardian, conservator or equivalent . . . .’ ” (People v. Moore (2009) 176
Cal.App.4th 687, 692–693.) The parties both assume, as do we, that Schultz falls within
these parameters.
7
Therefore, the question is whether the offenses could reasonably have been discovered
before February 17, 2007.
Appellant first argues the statute of limitations should be triggered by the
discovery of the quitclaim deed in December 2006 because the January 2007 grant deed
“merely duplicated the same transfer of title” accomplished by the quitclaim deed. As an
initial matter, we fail to see how this argument impacts count six, which by its terms is
based on the loan, an act that did not “merely duplicate[]” the quitclaim deed. In any
event, we reject the argument. The grant deed may have effectively constituted the same
transfer as the quitclaim deed, though we note there are differences between the two.
(Klamath Land & Cattle Co. v. Roemer (1970) 12 Cal.App.3d 613, 618 [“A grant deed
unquestionably transfers an after-acquired title” while, “[a]s a general rule, a quitclaim
deed does not operate to transfer an after-acquired title”].) Nonetheless, in executing and
recording the grant deed, appellant committed a separate act. Appellant has cited no
authority for the proposition that the statute of limitations for a separate act starts running
before the act even occurs simply because it was duplicative of a previous act, and we
decline to adopt such a rule.
Appellant next argues the statute of limitations began on the dates the grant deed
and deed of trust were executed because the crimes “were discovered, or should have
been[] discovered, before then.” (Italics added.) He relies again on the fact that in
December 2006 there was actual knowledge of the transfer of Hart’s interest in the
Hercules property to appellant. Again, we fail to understand how Schultz did or could
have discovered the grant deed and deed of trust before these acts took place.
Finally, appellant argues the question of whether the grant deed and deed of trust
could reasonably have been discovered before February 17, 2007, was a question for the
jury.8 Assuming Schultz’s knowledge of the quitclaim deed could constitute evidence
that he reasonably should have discovered the grant deed and deed of trust before
8
The People suggest appellant forfeited this issue by failing to raise it below; appellant
contends he sufficiently raised it. We need not decide the issue because we find no
reversible error.
8
February 17, 2007, we conclude it is not reasonably probable the jury would have so
found. (Smith, supra, 98 Cal.App.4th at p. 1193 [“the proper standard for evaluating an
alleged erroneous failure to instruct on the statute of limitations is the traditional state
prejudice standard set out in People v. Watson (1956) 46 Cal.2d 818”]; see also People v.
Thomas (2007) 146 Cal.App.4th 1278, 1290 [reviewing failure to instruct regarding
statute extending statute of limitations for error under Watson standard], disapproved of
on another ground by People v. Shockley (2013) 58 Cal.4th 400; but see People v. Stanfill
(1999) 76 Cal.App.4th 1137, 1154 [reviewing failure to instruct on statute of limitations
pursuant to standard in Chapman v. California (1967) 386 U.S. 18, 36 (Chapman)].)
Schultz’s uncontradicted testimony was that, even after he learned of the quitclaim deed,
he had no reason to suspect further activity affecting title to the Hercules property
because Hart’s Letters of Conservatorship were recorded and would have been
discovered by a title search. In light of this uncontradicted testimony,9 we conclude it is
not reasonably probable the jury would have found that the grant deed and deed of trust
could reasonably have been discovered before February 17, 2007. Any error in failing to
present the issue to the jury was harmless.10
II. Claim-of-Right Defense
Appellant argues the trial court committed prejudicial error in refusing to instruct
the jury on a claim-of-right defense and the error violated his due process rights. We
reject the contention.
“The claim-of-right defense provides that a defendant’s good faith belief, even if
mistakenly held, that he has a right or claim to property he takes from another negates the
felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999)
9
Appellant does not claim he was precluded from presenting any evidence on this issue.
10
We reject appellant’s contention that the failure to submit the statute of limitations
issue to the jury violated his constitutional right to present a defense. As noted above,
appellant does not contend there was any evidence relevant to this issue that the trial
court excluded, and appellant cites no authority that the failure to instruct the jury on the
statute of limitations constitutes a violation of the right to present a defense.
9
21 Cal.4th 935, 938 (Tufunga).) “A defendant need not show his mistaken claim-of-right
was reasonable. An unreasonable belief that he had a legal right to take another’s
property will suffice so long as he can establish his claim was made in good faith.”
(People v. Romo (1990) 220 Cal.App.3d 514, 518 (Romo).) “ ‘[A] trial court is not
required to instruct on a claim-of-right defense unless there is evidence to support an
inference that [the defendant] acted with a subjective belief he or she had a lawful claim
on the property.’ ” (Tufunga, supra, at p. 944.) “ ‘ “In evaluating the evidence to
determine whether a requested instruction should be given, the trial court should not
measure its substantiality by weighing the credibility [of the witnesses] . . . . Doubts as to
the sufficiency of the evidence to warrant instructions should be resolved in favor of the
accused.” ’ ” (Ibid.)
Appellant argues there was substantial evidence he held a good faith belief that
Hart and Wilson consented to give him their property.11 With respect to Hart, he points
to the testimony that in 2011, Hart told a police inspector she had told appellant he could
take her off the Hercules property. He also points to evidence that he solely owned the
Hercules property prior to adding Hart as collateral for their Newhall property venture,
and that his interest in the Newhall property was voided after Hart’s conservatorship.
With respect to Wilson, appellant argues substantial evidence is provided by evidence
that he and Wilson were close friends, Wilson wanted to grant appellant an interest in his
home, and appellant made improvements on the house.
11
At trial, appellant only requested the instruction with respect to Hart. There is a split in
authority regarding whether the trial court has a sua sponte duty to instruct on the claim-
of-right defense where supported by substantial evidence. (Compare People v. Russell
(2006) 144 Cal.App.4th 1415, 1429 [“If the defendant relies on a claim-of-right defense
or if there is substantial evidence that supports the defense and the defense is not
inconsistent with the defendant’s theory of the case, the trial court must instruct sua
sponte on the defense.”] with People v. Hussain (2014) 231 Cal.App.4th 261, 269 [“Since
the claim of right defense, like accident or mistake of fact, serves only to negate the
mental state required for grand theft, . . . the trial court had no duty to instruct sua sponte
on it.”].) We need not weigh in on the issue because we conclude there was no
prejudicial error in any event.
10
We need not decide whether there was substantial evidence to support the
instruction because even if failing to instruct the jury was error, the error was harmless
under any standard. (See People v. Salas (2006) 37 Cal.4th 967, 984 [noting “[w]e have
not yet determined what test of prejudice applies to the failure to instruct on an
affirmative defense” and assuming, without deciding, “the more rigorous Chapman test
applies”].) To succeed on a claim-of-right defense, the jury would have to believe not
only that appellant held a good faith belief that Hart and Wilson consented to give him
their property, but also that he held a good faith belief that he could effect the transfer of
property without going through Hart’s and Wilson’s conservators. (Romo, supra, 220
Cal.App.3d at p. 518 [claim-of-right defense established where the defendant held a good
faith belief that “he had a legal right to take another’s property”]; People v. Stewart
(1976) 16 Cal.3d 133, 140 [claim-of-right requires showing that the defendant
“believe[d] he was acting lawfully”].)
Appellant does not dispute this proposition but argues the evidence was
inconclusive regarding whether he knew Hart and Wilson could not transfer property and,
in any event, this was a question for the jury to decide. While we agree with appellant’s
second point, it does not assist him. The jury necessarily decided this issue in finding
appellant guilty, with respect to both Hart and Wilson, of filing a false or forged
instrument.12 The jury was instructed that an element of the charge was: “When the
defendant did the act, he knew that the document was false or forged.” The evidence was
undisputed that the documents were not forged. The only basis for these counts was that
the grant deeds were false because Hart and Wilson were under conservatorships at the
time and therefore could not legally transfer property. By convicting appellant on these
counts, the jury necessarily found that he knew Hart and Wilson could not legally transfer
property at the time they signed the grant deeds. Therefore, even if the trial court had
12
The parties dispute whether the jury’s verdict on the embezzlement count conclusively
establishes the jury would have rejected a claim-of-right defense. We need not decide
this issue.
11
instructed the jury on the claim-of-right defense, we find beyond a reasonable doubt the
jury would still have convicted appellant of the theft counts.
III. Admission of Evidence
Appellant argues certain evidence was improperly admitted and he was prejudiced
by the admission. Appellant forfeited many of these challenges by failing to object
below. We reject his remaining challenges.
A. Evidence Regarding Civil Proceedings
Appellant first points to evidence that the grant deed transferring Wilson’s home
to Wilson and appellant jointly was subsequently rescinded. The attorney for Wilson’s
conservator testified to this fact on cross-examination; appellant did not object to this
testimony. On redirect, the attorney again testified that the grant deed was set aside,
adding that appellant “was ordered to pay costs and fees, which he never did.” Appellant
objected on hearsay and relevance grounds. The trial court struck the statement regarding
fees and costs and instructed the jury to disregard it.
Appellant first suggests any testimony about court orders regarding the grant deed
was inadmissible hearsay. He forfeited this argument with respect to the first such
testimony by failing to object below. (Evid. Code, § 353, subd. (a); People v. Pearson
(2013) 56 Cal.4th 393, 438 (Pearson).) Although he objected to the second testimony, he
suffered no prejudice from any error regarding testimony that the grant deed was
rescinded because this evidence was already before the jury. With respect to the new
testimony about fees and costs, appellant contends the limiting instruction was
insufficient to cure the prejudicial testimony. “ ‘Juries often hear unsolicited and
inadmissible comments and in order for trials to proceed without constant mistrial, it is
axiomatic the prejudicial effect of these comments may be corrected by judicial
admonishment, absent evidence to the contrary the error is deemed cured.’ ” (People v.
McNally (2015) 236 Cal.App.4th 1419, 1428–1429 (McNally).) “ ‘It is only in the
exceptional case that “the improper subject matter is of such a character that its effect . . .
cannot be removed by the court’s admonitions.” ’ ” (Id. at p. 1429.) This is not such an
exceptional case.
12
Appellant also challenges testimony that a money judgment was entered against
appellant and the LLC regarding the Newhall property. Appellant objected below on
hearsay grounds. After the witness testified that he had personal knowledge of the
judgment, the trial court overruled the objection. On appeal, appellant renews his
argument that the testimony was hearsay. The witness testified only that judgment was
entered. Appellant does not dispute the witness’s testimony that he had personal
knowledge of this fact. While testimony regarding any factual findings contained in that
judgment may have been hearsay, no such testimony was elicited. Appellant also argues
the testimony was irrelevant. He did not object on relevance grounds below and has
therefore forfeited this argument. (Pearson, supra, 56 Cal.4th at pp. 437–438 [hearsay
objection in trial court not sufficient to preserve claim on appeal that evidence was
irrelevant].)
B. Evidence That Appellant Unduly Influenced Hart and Wilson
Appellant challenges a variety of testimony he characterizes as evidence that he
unduly influenced Hart and Wilson. We reject these challenges.
Appellant argues certain testimony from the case manager for Wilson’s
conservator was irrelevant, hearsay, and lacked foundation. However, no such objections
were raised below during this testimony.13 Similarly, appellant did not object below to
Dr. Nievod’s testimony that he became aware of Hart’s case after being contacted by
Adult Protective Services and Schultz because they were concerned she was a victim of
undue influence and they were in the process of filing a conservatorship petition based on
their determination she had been the victim of financial fraud. These challenges are
therefore forfeited. (Pearson, supra, 56 Cal.4th at p. 438.)
Appellant challenges testimony that one witness’s understanding, based on
reviewing the pleadings in Hart’s conservatorship petition, was that the conservatorship
was initiated because Hart was subject to undue influence in her financial affairs.
13
Contrary to appellant’s suggestion, objections on other grounds are not sufficient to
preserve his claims. (Pearson, supra, 56 Cal.4th at pp. 437–438.)
13
Appellant did not object at the time, but at the next recess requested a limiting instruction
that the testimony solely reflected the witness’s understanding of the pleadings and was
not offered for the truth. The jury was so instructed. We are not persuaded that the
limiting instruction was insufficient to cure any error in the testimony’s admission.
(McNally, supra, 236 Cal.App.4th at pp. 1428–1429.) Although appellant argues on
appeal that the evidence was also irrelevant, this contention was not raised below and is
therefore forfeited.
Appellant objects to testimony of a witness’s opinion that Hart eventually believed
she may have been taken advantage of by appellant. The trial court overruled appellant’s
hearsay and relevance objections. Appellant renews these objections on appeal. Any
error in admitting the testimony was harmless, as Hart testified to substantially the same
thing.
Finally, appellant objected to testimony by Thomas, Hart’s conservator, that
documents included in Hart’s conservatorship petition indicated the conservatorship was
initiated because of concerns about an individual who had control of Hart’s assets. The
trial court overruled appellant’s hearsay objection. The testimony on its face related only
what was in the conservatorship petition. In any event, the jury heard essentially the
same testimony from Dr. Nievod, so any error was harmless.
C. Evidence Involving Other Properties
Appellant challenges testimony from Schultz that he tried to recover title to a
number of Hart’s properties that appellant or another entity jointly owned. After
appellant objected on hearsay and relevance grounds, the trial court instructed the jury
that the testimony was not asserted for the truth, but solely to explain Schultz’s conduct.
Again, appellant has not persuaded us that the limiting instruction was insufficient.
(McNally, supra, 236 Cal.App.4th at pp. 1428–1429.)
14
Appellant failed to object below to testimony about litigation to recover title on
Hart’s other properties,14 a 2006 police investigation into allegations of financial fraud in
connection with Hart, and Hart’s inability to recall what happened to almost half of the
proceeds from the sale of her residence.15 The challenges are forfeited.
Schultz testified, during cross-examination, that he was told appellant continued to
collect the rent from the Newhall property tenants after the conservatorship was in place.
Defense counsel requested the testimony be limited to use for Schulz’s state of mind, and
the trial court agreed. Appellant now argues the testimony was not relevant. His failure
to object on this ground below forfeits the challenge. Appellant also points to a statement
in the prosecutor’s closing argument referring to appellant’s collection of rents, arguing
the prosecutor used the evidence for the truth despite the limiting instruction. However,
Hart testified without a limiting instruction that appellant collected rents at the Newhall
property. In any event, appellant did not object below to the closing argument statement.
D. Evidence Regarding Hart’s Move to Antioch
Appellant challenges Dr. Nievod’s testimony about Hart’s move to Antioch and
the isolating impact this had on her. Appellant argues the testimony was hearsay and
lacked foundation. He did not raise these objections below and has forfeited them.
IV. White Collar Crime Enhancement and Fine
Appellant argues there was insufficient evidence to support the white collar crime
enhancement. He contends the only evidence connecting a monetary value to the
properties at issue was that the loan from World Savings Bank was for $540,000. He
argues that after the trial court dismissed count 1, this value could no longer be used to
support the enhancements or fine. We disagree.
14
The only defense objection was lack of foundation regarding testimony about the LLC
created to develop the Newhall property. Appellant does not renew this objection on
appeal.
15
After defense counsel objected to a prior question on hearsay grounds, the prosecutor
rephrased the question before the trial court ruled on the objection. Defense counsel did
not renew the objection during the subsequent line of questioning. We note also that Hart
testified she did not know what happened to nearly half of the proceeds from the sale.
15
The white collar crime enhancement, 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 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).)16 The statute further provides that the
additional prison term and penalties “shall not be imposed unless the facts set forth in
subdivision (a) are charged in the accusatory pleading and admitted or found to be true by
the trier of fact.” (§ 186.11, subd. (b)(1).) The statute imposes a fine “not to exceed five
hundred thousand dollars ($500,000) or double the value of the taking, whichever is
greater,” when the facts supporting the enhancement have been found true. (§ 186.11,
subd. (c).) “ ‘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.
Denman (2013) 218 Cal.App.4th 800, 813.)
The parties dispute whether, after count 1 was dismissed, the loss to World
Savings Bank charged in that count could still be considered for purposes of the white
collar crime enhancement. We need not decide this issue. The enhancement applies
where the 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) . . . .” (§ 186.11,
subd. (a)(2), italics added.) In count 6, the jury found appellant guilty of embezzling “a
loan in United States currency in the amount of Five Hundred Forty Thousand Dollars
16
Section 186.11, subdivision (a)(2) provides: “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.”
16
($540,000) on [the Hercules property], the property of Rosia H[art] and World Savings
Bank.” The jury’s conviction on this count is sufficient to support the enhancement,
regardless of whether the loss to World Savings Bank could properly be considered:
appellant’s embezzlement of Hart’s property involved the taking of $540,000. For
similar reasons, appellant’s arguments that World Savings Bank’s loss is reduced because
of his loan repayments and that Hart suffered no loss to her property are unavailing: the
relevant analysis for our purposes is whether the criminal conduct involves the “taking
of” property over $500,000.17
DISPOSITION
The judgment is affirmed.
17
It is unclear whether appellant is also appealing the section 12022.6 enhancements.
However, the trial court struck these enhancements under section 1385 and the People
have not cross-appealed this ruling.
17
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
18