Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR 902994
Ruvolo, P. J.
Appellant was convicted of three counts of unlicensed contracting; two counts of diversion of funds by a contractor; and one count each of perjury and solicitation of perjury. We reverse his conviction for solicitation of perjury, which is not supported by substantial evidence. We reject his challenges to the other counts of which he was convicted, and to the fine imposed by the trial court as a condition of probation.
Some of the counts of which appellant was convicted in the present case are factually unrelated, while others fall into factually related groups. In order to organize the facts as chronologically as possible, we will discuss the counts in a different order than that in which they appear in the information.
Count Seven: Unlicensed Contracting (Espinoza)
Appellant dropped out of school when he was in the ninth grade, and started doing construction work. He admittedly did not have a contractor’s license in 2001 and 2002.
In December 2000, Rafael Espinoza approached appellant about remodeling his garage into an office and a small bedroom. Appellant agreed to do the work for $2,000. When appellant looked at the project, he suggested that he could, instead, convert the garage into a master bedroom for an additional $1,000, so that the whole project would cost a total of $3,000 including materials and labor. Espinoza agreed, and in February 2001, he gave appellant a check for $800 as an initial payment. Appellant wanted a down payment of half the total price, but Espinoza could not afford to give him more than $800. Appellant took a piece of vinyl siding off the garage so that he could try to match it.
Appellant testified that he did not recall how much he told Espinoza he would charge for the work.
Appellant told Espinoza that he could not start working on the project immediately, because he had another job in progress. Around the time Espinoza gave appellant the check, appellant dropped off some framing lumber, sheet rock, insulation, and other materials, and a stove. Espinoza did not make a list of the materials, but estimated that they were worth “not even close” to $800. Appellant, on the other hand, testified that all of the money Espinoza gave him was spent on materials. Appellant left the materials at Espinoza’s house, but never returned the piece of siding he had taken.
When appellant told Espinoza that his workers would start on the job the next day, Espinoza replied that he wanted to get a permit for the work first. That was the last contact they had. Appellant testified that he understood Espinoza was going to obtain the permit and then get back to him, but he never heard from him.
Counts Four and Six: Diversion and Unlicensed Contracting (Hill)
Beverly Smith was a long-time family friend of appellant’s, and in the fall of 2002, appellant was living in a house that Smith owned. At around that time, Smith started working at a beauty salon owned by Sherri Hill.
Hill wanted someone to install an additional sink, and to do some other remodeling work in Hill’s salon. Smith recommended appellant. On September 18, 2002, Hill and appellant entered into a written contract under which appellant agreed to purchase and install a new countertop and install Smith’s exiting sink into it; frame, drywall, and paint a wall; change some electrical units, and install some appliance hookups. The price for the job was $1,200, including the cost of materials.
Hill initially paid appellant $500 in advance, and was to pay the balance due when he completed the job. On October 4, 2002, appellant asked Hill to advance him an additional $600 against the contract price so that he could pay what he owed Smith for her house for that month. Hill gave appellant a check in that amount, with Smith’s name as the payee.
Smith confirmed that appellant turned Hill’s check over to her as a payment for the house.
Appellant never completed the job he had contracted to do for Hill. He did only a little electrical work; some framing, and some of the plumbing. At one point, he explained to Hill that he could not work for three weeks due to an injury, but even after the three weeks were over, he neither came back to finish the job nor contacted Hill. After two months, Hill sent a friend to tell appellant his services were no longer needed, and to get back the key she had given appellant. Hill then paid a friend to install the appliances. Appellant testified that Smith told him not to install the sink he had agreed to put in, because it was not going to be needed after all.
Appellant testified that he told Hill his injury would prevent him from working for two months.
Counts Three and Five: Diversion and Unlicensed Contracting (Flores)
Appellant’s contracting job for Bulmaro Flores was the genesis not only of counts three and five, but also, indirectly, of counts one and two. By the time of appellant’s trial, Flores had known him for at least eight years, originally as a coworker. In 2001, appellant helped Flores fix a trailer for between $3,000 and $4,000. Flores was satisfied with appellant’s work on that project, so when Flores wanted some remodeling work done on an older house he purchased in November 2002, he hired appellant to perform it.
Flores hired appellant to do three phases of work on the house, each for a fixed price that included both labor and materials. Their agreements was not in writing. First, appellant agreed to install doors, windows, and sheet rock in the bedrooms and living room for $7,000. While that work was in progress, appellant agreed that after Flores himself demolished the existing walls and floors in the kitchen and bathroom, appellant would refurbish those two rooms, essentially in their entirety, for $8,000. Finally, appellant agreed to install floor tile in the kitchen for $1,500.
Appellant’s description of the scope of the work he agreed to do was somewhat at variance with that given by Flores, but the difference is not material to the issues on appeal.
Appellant started Flores’s project in November 2002. Flores paid him in installments, starting with a payment of about $3,000 to buy materials. Flores paid appellant in cash, and at first, he did not keep records of what he had paid appellant, but he later decided he wanted to do so. He prepared dated receipts showing that he had paid appellant $6,300 and then another $8,000, as well as a later, undated receipt for $1,300 for the floor tiles. The dates on the first two receipts did not reflect the actual dates on which Flores had made the payments. Appellant admitted signing these receipts, but testified at trial that they were blank at the time, and did not reflect the actual price of the work he did. Then, in late December 2002, appellant asked Flores for another $1,000, which Flores paid him without making out a receipt.
Appellant did most of the work he was supposed to do for Flores, but not all of it. The tasks appellant left undone included putting sealing and trim around windows and doors, and installing an interior door, baseboards, electrical outlet covers, and electrical connections for the kitchen appliances. Flores ended up doing these tasks himself, or paying others to do. Flores used his own wood to finish the trim, even though appellant was supposed to provide the materials. Flores gave appellant money to buy a new kitchen sink, but appellant never provided one, so Flores finally told him to reinstall the original one.
Appellant testified that at the time he stopped working on Flores’s project, the two men had a falling out because Flores still owed him $5,200, and wanted appellant to do additional work without charging for it.
Flores was dissatisfied with some aspects of the work appellant did, such as the joints in the sheetrock, the floor tiling, and the toilet installation. When appellant stopped working, he took the unused portion of the materials away. This was all material that appellant had brought to the site for the job, however; none of it belonged to Flores.
Count One: Perjury
Sometime during 2002, appellant apparently fell behind on his child support obligations with respect to his children by two different women, whom we will refer to as the support obligees. In the fall of 2002, the Lake County Department of Child Support Services (DCSS) initiated efforts to collect the delinquent child support payments from appellant. As part of those efforts, appellant was served with an order to attend a judgment debtor’s examination (the debtor exam) at the Lake County Superior Court, so that DCSS could inquire into appellant’s assets, income, and employment history during the preceding year.
The debtor exam occurred on December 4, 2002. At the debtor exam, appellant was sworn in by the clerk; instructed by a court commissioner to answer under oath all questions put to him; and then directed into a jury room to be questioned by Daniel Sean Navarro, an investigator for the Lake County District Attorney’s Office. Appellant’s attorney, Karen Evans, went into the jury room with appellant and Navarro, as did the two support obligees. Patricia Shaw White, an attorney with DCSS, came into the jury room about 30 minutes after the debtor exam started, and remained until it ended about 30 minutes later. The debtor exam proceedings in the jury room were not reported by a court reporter or otherwise recorded.
In the jury room, Navarro asked appellant to respond to each question on a three or four-page preprinted form questionnaire used for debtor exams. While he was doing so, the support obligees became upset and accused appellant of giving false answers, and the parties began yelling at one another. The resulting noise was loud enough to prompt the court commissioner to send bailiffs to the jury room to restore order.
During the debtor exam, Navarro wrote down appellant’s answers as he gave them, both on the questionnaire and on separate pages of notes. By the time of appellant’s trial in the current case, which occurred in August 2007, Navarro had little or no independent recollection of appellant’s answers, and his testimony was based primarily on his notes. The questionnaire had a space for the debtor to sign under penalty of perjury, but Navarro did not ask appellant to sign it.
Appellant told Navarro that he worked for a plumbing company during part of 2002, but was no longer working there. When appellant explained that he had done some remodeling work, the support obligees mentioned specific jobs, prompting appellant to confirm that he had done a remodeling job for Flores that involved tiling, electrical work, and windows.
According to Navarro’s interpretation of his notes, appellant told him that he had charged Flores $5,200 for the entire job, which consisted of $2,200 for materials, $1,500 for other people’s labor, and $1,500 for appellant. Some of the information Navarro wrote down in his notes came from the support obligees rather than from appellant, and Navarro did not recall what information came from which source. Navarro was positive that the figures he wrote down about the Flores job came from appellant, however, because the support obligees would not have known that information.
Appellant testified he told Navarro that he did not know how much money he had already received for the Flores job, and that the $5,200 was only what Flores still owed him, not the entire price of the job. White had an “unspecific recollection” that appellant told Navarro that he had done some work for Flores for which appellant had not yet been paid, and it “sound[ed] familiar” to her that appellant gave Navarro a breakdown of what Flores owed him, as between the total cost and the various elements of it.
Navarro did not recall whether he interpreted what appellant told him about the cost of the Flores job to mean that appellant had already collected the money or was still owed it. Navarro was certain, however, that appellant never told him that Flores had paid appellant anything more than $5,200 for the work appellant did for him. Navarro may have asked appellant whether Flores still owed him money for the job, but he was not sure. Navarro did record that appellant answered “No” to a general question as to whether anyone owed appellant any money.
Technically, this was true as to Flores, because given appellant’s unlicensed status, any promise by Flores to pay him additional funds was legally unenforceable. (Bus. & Prof. Code, § 7031; Great West Contractors, Inc. v. WSS Industrial Construction, Inc. (2008) 162 Cal.App.4th 581, 587-588.)
Count Two: Solicitation of Perjury
After the debtor exam, by which time Flores had paid appellant all the money reflected in the receipts, appellant stopped by Flores’s house and told him that “someone from CPS [sic was going to come to my house to ask me how much I had paid [appellant].” According to Flores, appellant “told me to tell them that I had paid him $5,000,” and Flores agreed to do so, though he told appellant he wanted him to finish the work on his house in return.
Flores understood, correctly, that appellant was using the term “CPS” to refer to something having to do with unpaid child support.
Appellant recounted this conversation differently. He testified that he asked Flores to tell DCSS that Flores and appellant agreed that the $5,200 that Flores still owed appellant could be paid to DCSS instead, to be applied to appellant’s child support debt. In any event, Flores and appellant each testified unequivocally that appellant did not ask Flores to come to court and lie, or even to come to court at all.
PROCEDURAL HISTORY
On October 14, 2005, an information was filed charging appellant with seven counts: (1) perjury at the debtor exam regarding the amount of money appellant had received from Flores (Pen. Code, § 118 ); (2) solicitation of Flores to commit perjury (§ 653f, subd. (a); (3) and (4) two counts of diversion of funds received to purchase labor and materials for a construction project that was not completed (diversion of funds, § 484b); and (5), (6), and (7) three counts of engaging in the business of acting as a contractor without a license (Bus. & Prof. Code, § 7028).
All further unspecified statutory references are to the Penal Code.
Though the information did not specify the victims of the diversion of funds counts, the jury instructions made clear that count 3 related to Flores and count 4 related to Hill.
Appellant moved for acquittal as to all counts under section 1118.1 at the close of the prosecution’s case in chief, but the trial court denied the motion. After two partial days of deliberation, the jury at appellant’s trial found him guilty on all counts. Appellant’s two motions for new trial, and another posttrial motion, were denied.
Appellant’s first motion for new trial was based solely on a challenge to the sufficiency of the evidence. His other posttrial motion and his ensuing second motion for new trial are discussed in detail post.
On June 23, 2008, the trial court entered a judgment of conviction, but suspended imposition of sentence, and placed appellant on formal probation for five years. The conditions of probation included 300 days in jail, but the trial court granted appellant’s motion for bail pending appeal. As one of the conditions of probation, appellant was ordered to pay a $4,500 fine under Business and Professions Code section 7028, subdivision (b), plus a penalty assessment of $12,600. Appellant’s notice of appeal was filed on the same day.
DISCUSSION
1. Posttrial Motions
Procedural Background
After the jury rendered its verdict, appellant’s sentencing was continued several times, at his request, in order to allow his attorney time to file a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531), which was followed by a renewed motion for new trial and a nonstatutory motion to set aside the conviction. In support of the Pitchess motion, appellant’s counsel explained that he had “recently been informed that Sean Navarro’s employment with the Lake County District Attorney’s Office may have been terminated for misconduct,” that the prosecution had not informed him of this fact, and that he had not known it prior to trial.
Appellant filed his Pitchess motion on December 13, 2007. After an in camera hearing on January 28, 2008, at which the trial court reviewed relevant documents, the court ordered the county to disclose that during Navarro’s employment at the Lake County District Attorney’s Office, Navarro made an anonymous report that a person who was receiving public assistance was doing so fraudulently, and that after an investigation, it was concluded that Navarro’s allegations were unfounded. (We will refer to this series of events as Navarro’s unfounded report.) After some delay, the existence of Navarro’s unfounded report was disclosed to appellant’s counsel in a letter from the county counsel’s office dated February 20, 2008.
On March 25, 2008, appellant’s counsel filed a second motion for new trial based on Navarro’s unfounded report. This was followed by a nonstatutory motion for new trial on the ground that the prosecution’s failure to disclose Navarro’s unfounded report to appellant’s counsel prior to trial constituted a Brady violation. (Brady v. Maryland (1963) 373 U.S. 83.) After a hearing on April 28, 2008, both motions were denied.
Analysis
Appellant’s first argument with respect to his posttrial motions is that this court should review the documents examined in camera by the trial court in connection with the Pitchess motion, to determine whether anything additional should be disclosed, particularly given that Navarro’s employment with the district attorney’s office was apparently terminated for cause. Respondent does not oppose the request, but in the present case, the record is sufficient to enable us to determine that this procedure is not necessary. We have reviewed the reporter’s transcript of the in camera hearing, and it is clear from the face of that record that there was no information that should have been disclosed in response to appellant’s Pitchess motion other than the information that was ultimately provided to him.
Second, appellant argues that his second motion for new trial or his nonstatutory motion to set aside his conviction should have been granted. In light of the substantial evidence supporting appellant’s perjury conviction, as discussed in more detail post, we are not convinced that the trial court abused its discretion in denying appellant’s motion for new trial based on the newly discovered evidence of Navarro’s unfounded report.
Finally, as to the nonstatutory motion based on the alleged Brady violation, we reach the same result. Given the state of the evidence, we are not convinced that Navarro’s unfounded report was material, in the sense that there was a reasonable probability that appellant would not be convicted of perjury if the jury had known the additional facts. In any event, it is clear under the case law that the prosecution was not required, or even permitted, to review Navarro’s personnel file to determine whether or not it contained material that needed to be disclosed to the defense under Brady. (People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1474-1476.)
Sufficiency of Evidence Supporting Perjury Conviction
The elements of perjury are: (1) that the defendant took a required or authorized oath (or its equivalent) before a competent tribunal or officer; (2) that the defendant intentionally made a statement under that oath, with knowledge that the statement was false; and (3) that the defendant’s false statement was material to the proceeding in which the oath was taken. (§ 118, subd. (a); see Cabe v. Superior Court (1998) 63 Cal.App.4th 732, 735; People v. Guasti (1952) 110 Cal.App.2d 456, 463; CALCRIM No. 2640; 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 60, p. 1151.) In addition, the falsity of the statement must be established either by the testimony of more than one witness, or by the testimony of one witness that is corroborated by other evidence. (§ 118, subd. (b).)
In the present case, appellant attacks the sufficiency of the evidence to establish that (1) appellant’s alleged false statement under oath was made before a competent tribunal; (2) appellant’s alleged false statement was material; and (3) the falsity of the statement was established in accordance with the corroboration requirement.
In addressing appellant’s contentions, we follow well-established principles governing challenges to the sufficiency of the evidence in criminal appeals. “We ‘ “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” ’ [Citations.] We presume ‘ “in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1251.)
Statement Under Oath Before Competent Tribunal
Appellant does not dispute that the court commissioner before whom he was sworn was competent and authorized to administer an oath for a debtor exam. Rather, appellant argues that Navarro was not a “competent tribunal,” and thus that he cannot be prosecuted for perjury based on a statement made to Navarro in the jury room, outside the commissioner’s presence. Appellant bases this argument primarily on Nebel v. Sulak (1999) 73 Cal.App.4th 1363. (See also Jogani v. Jogani (2006) 141 Cal.App.4th 158 [false statement made during debtor exam, which was not credited or relied on by court under whose auspices that exam was conducted, could not serve as basis for application of judicial estoppel against party making statement].)
As the case law recognizes, “debtor examinations often occur informally, in the hallway outside the courtroom or in an adjacent room.” (Nebel v. Sulak, supra, 73 Cal.App.4th at p. 1369; see also Jogani v. Jogani, supra, 141 Cal.App.4th at p. 173.) Nebel v. Sulak, supra, 73 Cal.App.4th at pages 1368-1369, held that even when a debtor exam is conducted in order to enforce a judgment obtained in small claims court, where parties cannot be represented by counsel, the debtor exam itself must be conducted by a judicial officer or a member of the State Bar of California. (See Code Civ. Proc., § 708.140, subd. (b).)
Appellant argues, based on that holding, that since Navarro was not a judge, commissioner, licensed attorney, or duly appointed referee, Navarro was not competent to conduct the judgment debtor examination. Therefore, he contends, any false statement that appellant made to Navarro was not made before a “competent tribunal” within the meaning of section 118.
This proposition is not supported by Nebel v. Sulak, supra, 73 Cal.App.4th 1363, which reversed an injunction barring an observer from attending debtor exams conducted by a non-attorney debt collector. Moreover, appellant’s argument misses the point. The “competent tribunal” before which appellant took the oath to tell the truth was not Navarro, it was the court commissioner. Appellant does not dispute that the court commissioner was a competent tribunal, and that appellant swore before the commissioner to tell the truth in the debtor exam. Appellant has not cited any authority holding that under these circumstances, where the questioning itself is conducted by someone other than the tribunal, but subject to its authorization and control, the proceeding is beyond the reach of section 118. Furthermore, even if it was improper for Navarro, rather than his supervising attorney, White, to conduct the actual debtor exam, that irregularity is utterly irrelevant to whether defendant violated the oath he took before the court commissioner. Thus, there was substantial evidence establishing the challenged element of the perjury charge.
Materiality
Appellant next argues that even if he falsely told Navarro that Flores only paid him $5,200, there is insufficient evidence of the materiality of this statement to support a perjury conviction. He argues that by the time of the debtor exam in early December 2002, he could be presumed to have spent all the money Flores paid him in November, and thus the information about how much Flores paid him was not material to his current ability to pay his accrued unpaid child support.
A false statement is “material” if it probably could have influenced, or might have been used to affect, the outcome of the proceeding in connection with which it is made. (People v. Feinberg (1997) 51 Cal.App.4th 1566, 1575.) Obviously, the amount of income appellant derived from his contracting business during the period leading up to the debtor exam was material to DCSS’s efforts to collect his child support. Even if the money Flores paid appellant had been spent by the date of the debtor exam, it was important to know the amount, in order to assess appellant’s earning capacity, and the likelihood that he could be concealing assets in some fashion. Based on White’s testimony that an individual’s underreporting of assets and income affects DCSS’s ability to enforce child support orders, there was sufficient evidence to justify the jury in concluding that any false statements to Navarro by appellant regarding how much Flores paid him were material.
Corroboration of Falsity
Finally, appellant contends that the corroboration of falsity requirement was not satisfied, because the only evidence that appellant’s statement at the debtor exam was false was Flores’s testimony regarding the amounts he paid appellant. “To fulfill the minimum requirements of [corroboration of falsity,] there must be at least the positive testimony of one witness furnishing direct evidence of facts that are absolutely incompatible with the innocence of the accused, ‘corroborated by circumstances which, of themselves and independently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused is guilty as charged.’ [Citations.]” (People v. Di Giacomo (1961) 193 Cal.App.2d 688, 693.) As long as there is at least one direct witness to the falsity of the defendant’s allegedly perjured statement, the “corroborative evidence may be circumstantial as well as direct.” (People v. Morris (1971) 20 Cal.App.3d 659, 664, disapproved on another ground in People v. Duran (1976) 16 Cal.3d 282, 292.)
To the extent that portions of appellant’s own testimony corroborated that of Flores, appellant is correct that we cannot consider that testimony in assessing whether appellant’s section 1118.1 motion for acquittal should have been granted. (People v. Cole (2004) 33 Cal.4th 1158, 1212-1213; People v. Ringo (2005) 134 Cal.App.4th 870, 880.)
Appellant notes, correctly, that because the receipts introduced in support of Flores’s testimony by the prosecution were authenticated only by Flores himself, they do not supply independent corroboration of his testimony as required by section 118, subdivision (b). (People v. Bowley (1963) 59 Cal.2d 855.) Nonetheless, there was indirect evidence corroborating Flores’s testimony. The prosecution introduced photographs of Flores’s house, which were taken and authenticated by Navarro, showing its appearance as of January 2003. The extent of the completed and uncompleted work, as shown in those photographs, was sufficient to corroborate Flores’s testimony that appellant contracted with him to do a great deal more than $5,200 worth of remodeling work.
Appellant also points out that in the present case, unlike in most perjury cases, there is no reporter’s transcript or tape recording of the allegedly false statement. Based on this fact, appellant makes the admittedly novel argument that under these circumstances, corroborating evidence was required not only as to the falsity of the allegedly perjured statement, but also to prove that the statement was made.
This argument ignores the fact that such corroborating evidence is in fact present in the record. Navarro’s notes and testimony were not the only evidence of appellant’s statement that the price of the job he did for Flores was $5,200. White testified that Navarro was writing down what appellant told him, and she also recalled, albeit vaguely, that appellant gave Navarro a breakdown of the cost of the Flores job, as Navarro’s testimony and notes described. Even if corroboration of the fact of the statement were required, White’s testimony is sufficient to provide it.
While we do not reach the issue whether corroboration of the making of a perjured statement is required, we do note that the plain language of section 118, subdivision (b), which codifies the corroboration requirement, refers only to “proof of falsity,” and not to proof of any other element of the crime. (See People v. Trotter (1999) 71 Cal.App.4th 436, 440 [“The focus of the corroboration requirement in the perjury statute is on the falsity of the statement, and not the identity of the perjurer.”].)
For all of the foregoing reasons, we are not persuaded that the trial judge erred in denying appellant’s section 1118.1 motion with respect to the perjury count. By the same token, we reject appellant’s argument that his conviction for perjury is not supported by sufficient evidence.
Sufficiency of Evidence of Solicitation to Commit Perjury
In count 2, appellant was charged with soliciting Flores to “commit and join in the commission of the crime of perjury,” in violation of section 653f, subdivision (a). Appellant contends that his conviction for this crime is not supported by the evidence, because there is no evidence that appellant ever asked Flores to make a false statement of fact under oath, and, as discussed ante, a false statement that is not made under oath is not perjury. (See 2 Witkin & Epstein, supra, Crimes Against Governmental Authority, § 60, p. 1151.)
As pertinent here, section 653f, subdivision (a) reads as follows: “Every person who, with the intent that the crime be committed, solicits another to... commit or join in the commission of... perjury... shall be punished by imprisonment in a county jail for not more than one year or in the state prison, or by a fine of not more than ten thousand dollars ($10,000), or the amount which could have been assessed for commission of the offense itself, whichever is greater, or by both the fine and imprisonment.”
Respondent counters that a defendant who asked another person to make an unsworn false statement that would corroborate the defendant’s own perjured statement is thereby guilty of solicitation of perjury. This is not the law. As appellant points out in his reply brief, “a defendant can ordinarily be convicted under a general solicitation statute only if, had the solicitation been successful, the person solicited would have been guilty of the underlying offense.” (People v. Herman (2002) 97 Cal.App.4th 1369, 1382, italics added.) If Flores had done what appellant asked him to do, however, he would have made only an unsworn false statement, so he would not have been guilty of perjury.
A defendant who asks another person to make an unsworn false statement in order to corroborate the defendant’s perjured statement could perhaps be charged with soliciting the other person to become an accessory after the fact. (See generally People v. Duty (1969) 269 Cal.App.2d 97, 103-104.) But soliciting Flores to become an accessory after the fact is not the crime with which appellant was charged, nor is it the one defined by the jury instructions given at his trial.
The jury instructions on count 2 correctly stated that in order to prove that appellant was guilty, the prosecution had to prove that he “requested another person to commit or join in the commission of the crime of perjury,” and that appellant “intended that the crime of perjury be committed.”
The crime of which appellant was actually convicted—solicitation of perjury—could not be proven without evidence that appellant asked Flores to make a false statement under oath. Because there is no evidence that appellant did so, his conviction on count 2 is not supported by sufficient evidence, and must be reversed.
Challenges to Diversion of Funds Convictions
Appellant raises two challenges to his convictions under section 484b on counts 3 (diversion of funds, Flores) and 4 (diversion of funds, Hill). First, he argues that the charges were barred by the statute of limitations, and second, he contends that the convictions are not supported by sufficient evidence. The first question does not involve any disputed factual issues, so we review it de novo as one of law. As to the second, we apply the standard of review for challenges to the sufficiency of evidence, which we have already articulated ante.
Statute of Limitations
Section 484b is a so-called “wobbler” offense: if the amount of funds diverted is $1,000 or more, it can be either a felony or a misdemeanor. The crimes alleged in counts 3 and 4 occurred in 2002. Appellant was first charged with these crimes by means of a complaint filed on November 8, 2004, which charged both counts as felonies. At the conclusion of the preliminary hearing, however, on October 7, 2005, the judge granted appellant’s motion to reduce these counts to misdemeanors. They were then recharged as misdemeanors in the information filed on October 14, 2005.
Appellant now argues that because the original complaint was not filed until more than a year after the charged crimes occurred, the prosecution was barred by the statute of limitations. The statute of limitations for section 484b as a felony is three years; as a misdemeanor, it is one year. (See §§ 801, 805, subd. (b.)
In a criminal case, a statute of limitations defense may be raised at any time, as it is jurisdictional in nature. (People v. Chadd (1981) 28 Cal.3d 739, 757; People v. Soni (2005) 134 Cal.App.4th 1510, 1514; but cf. Cowan v. Superior Court (1996) 14 Cal.4th 367, 371-375 [defendant may knowingly waive statute of limitations in criminal case].) Respondent’s brief does not contend that this argument has been waived or forfeited.
Respondent counters that when a “wobbler” crime is charged as a felony, the statute of limitations is three years, even if the defendant is ultimately convicted only of a misdemeanor, citing People v. Superior Court (Ongley) (1987) 195 Cal.App.3d 165, 169 (Ongley). In his reply brief, appellant responds that Ongley does not apply when, as here, the original complaint charging the crime as a felony is later superseded by an indictment charging it as a misdemeanor.
This argument was rejected in People v. Mincey (1992) 2 Cal.4th 408. In Mincey, the Supreme Court drew the important distinction between how the statutes of limitations apply where the originally charged felony is reduced to a misdemeanor, and where a misdemeanor finding of guilt is based on the lesser included offense of the felony charge. “In California, the statute of limitations in a criminal case may be raised as a time bar at any time. [Citation.] If the offense is an alternative felony/misdemeanor (a ‘wobbler’) initially charged as a felony, the three-year statute of limitations for felonies [citation] applies, without regard to the ultimate reduction to a misdemeanor after the filing of the complaint. [Citation.] If, however, the initial charge is a felony but the defendant is convicted of a necessarily included misdemeanor, the one-year limitation period for misdemeanors applies. [Citations.]” (Id. at p. 453.)
Appellant’s arguments also ignore the language of section 805, which provides: “For the purpose of determining the applicable limitation of time pursuant to this chapter: [¶] (a) An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed.” (Italics added.) The reference to “the punishment actually sought” plainly means that a “wobbler” has a felony statute of limitations even when it is initially pleaded as a misdemeanor. (See People v. Soni, supra, 134 Cal.App.4th at pp. 1517-1518; People v. Sillas (2002) 100 Cal.App.4th Supp. 1, 4-5.) A fortiori, the felony statute of limitations applies where, as here, the crime is initially pleaded as a felony but later recharged as a misdemeanor.
Appellant lastly claims that Ongley, supra, 195 Cal.App.3d 165 is distinguishable, because in the present case, the prosecution never produced any evidence that the crimes were felonies, either at the preliminary hearing or at trial. This argument fails for the reasons already stated. Section 805, subdivision (b) makes the longer limitations period applicable to a wobbler even if the prosecution never seeks to charge it as a felony in the first place. (People v. Soni, supra, 134 Cal.App.4th at p. 1517.) Thus, the statute cannot be read to imply a requirement that the felony charge be supported by some evidence in order to make the longer limitations period applicable. Accordingly, the crimes charged here in counts 3 and 4 were not barred by the statute of limitations.
Sufficiency of Evidence
Appellant also contends that there was insufficient evidence to support his convictions for diversion of funds as to the Flores and Hill projects. Appellant’s argument is premised on an interpretation of what section 484b requires the prosecution to prove. Accordingly, before addressing the state of the evidence on these two counts, we first discuss the elements of the crime with which appellant was charged.
Unfortunately, respondent’s brief has not assisted us with this task, as it fails to address appellant’s argument on this point, and does not discuss the cases on which he relies.
Section 484b provides in pertinent part: “Any person who receives money for the purpose of obtaining or paying for services, labor, materials or equipment and willfully fails to apply such money for such purpose by either willfully failing to complete the improvements for which funds were provided or willfully failing to pay for services, labor, materials or equipment provided incident to such construction, and wrongfully diverts the funds to a use other than that for which the funds were received, shall be guilty of a public offense....” Appellant argues, based on People v. Butcher (1986) 185 Cal.App.3d 929 (Butcher), that a contractor cannot be convicted of violating section 484b based solely on the contractor’s failure to complete the work. Otherwise, appellant contends, section 484b unconstitutionally punishes the contractor criminally for a mere debt, unaccompanied by fraud. (See People v. Holder (1921) 53 Cal.App. 45, 50 [“Any legislation that makes it a crime for one to use his own money for any purpose other than the payment of his debts is violative of section 15 of article I of the [C]onstitution of this state, which expressly inhibits imprisonment for debt except in cases of fraud.”].)
In Butcher, supra, 185 Cal.App.3d 929, a contractor who was building a home agreed to be paid in installments by the bank that issued the construction loan, with each installment justified by the items listed in a construction progress report. In fact, the contractor applied the proceeds from a payment not to the particular items listed in the underlying report, but to other costs associated with the same project which the contractor had previously advanced out of his own funds. On appeal from his conviction, the contractor argued that this was not a violation of section 484b. The Court of Appeal agreed, reasoning that “in the absence of a contract requirement that a particular progress payment be allocated to particular costs we see no reason why the contractor may not apply the funds in good faith to defray the bona fide reasonable costs of the project,” even if they were not the specific costs listed in the construction progress report. (Id. at p. 937.)
We have no quarrel with this aspect of Butcher, but it is not applicable to the current facts. Rather, appellant relies on the second aspect of the Butcher court’s opinion, which was issued for the guidance of the trial court on remand. The Butcher opinion went on to comment that if the contractor could show that his failure to complete the construction for the contract price was caused not by the diversion of funds or by any fault of his own, but rather occurred “for reasons wholly attributable to the mistakes of others” (e.g., the failure of the homeowner’s unlicensed architect to design the plans in conformity with the building code), then the contractor could not be convicted of violating section 484b. (Butcher, supra, 185 Cal.App.3d at p. 941, italics added.)
Based on this part of Butcher’s discussion, appellant argues here that his convictions under section 484b must be reversed, because there was no proof that his diversion of funds paid to him by Flores and Hill constituted the sole cause of his failure to complete their projects. We do not read Butcher so broadly, or section 484b so narrowly.
The purpose of section 484b is to “criminalize[] the diversion of construction funds from one project to another. It is intended to protect property owners from ‘harm resulting from the diversion of construction funds.’ [Citation.]... Thus, section 484b is violated... where ‘the contractor fails either to complete the improvements or pay the costs therefor with the money obtained for that purpose.’ [Citation.]” (People v. Wooten (1996) 44 Cal.App.4th 1834, 1847, italics added; see also People v. Stark (1994) 26 Cal.App.4th 1179, 1182-1183 [section 484b is a general intent crime, which “is complete if the wrongful diversion was the cause of failure either to complete the improvement or... to pay for... materials”].) Under this reading of section 484b, which dovetails with the statute’s language, the diversion of funds must result in harm to the property owner, but the prosecution need not prove that the diversion of funds was the sole cause of that harm. It is sufficient to show that the property owner was harmed by the contractor’s own acts or omissions, including, but not necessarily limited to, the diversion of funds.
In the present case, there is sufficient evidence to prove both that appellant used funds from the Flores and Hill projects for purposes other than the one for which they were intended, and that appellant’s own acts and omissions harmed Flores and Hill. As to the Flores project, the record contains substantial, credible evidence that Flores paid appellant all, or nearly all, of the money that appellant had agreed to charge to cover both labor and materials for the entire project, and that despite this, appellant failed to provide Flores with all the contemplated materials (including baseboards, trim, a kitchen sink, outlet covers, and a door), and left Flores’s remodeling project in an uncompleted state. Accordingly, there was sufficient evidence to justify a reasonable jury in drawing the inference that a portion of the funds that Flores paid appellant was intended for purchasing materials; that appellant used some part of that portion of the funds for another purpose; and that Flores was harmed as a result.
As to Hill, it was undisputed that she paid appellant all but $100 of the total price he quoted her, which included materials as well as labor. For that amount, appellant agreed to install a new countertop, do some electrical work, sheetrock and paint a wall, and install hookups for a washer and dryer. Appellant did almost none of the work; did not provide the countertop or all of the materials needed for the other parts of the job; and left Hill’s shop with an unfinished wall and uncompleted appliance connections. As with the Flores count, this evidence was sufficient to entitle the jury to conclude that appellant diverted part of the amount Hill paid him that was intended to cover the cost of the countertop and other materials, and that Hill was harmed as a result.
Challenge to Fine and Jail Term for Unlicensed Contracting
As conditions of his probation, appellant was ordered to pay a fine of $4,500, plus penalty assessments of $12,600 (collectively the Fine), and to serve a 300-day jail term. The Fine was imposed under Business and Professions Code section 7028, subdivision (b) (section 7028(b)), which provides that a person convicted of unlicensed contracting who has a prior conviction for the same offense must pay a fine of at least $4,500, and serve a jail term of at least 90 days.
Appellant now contends that imposition of the Fine was improper because the prosecution neither pleaded nor proved that he had a prior conviction for unlicensed contracting. As appellant points out, the first formal notice he was given that his prior conviction would be relied on as the basis for a fine under section 7028(b) was in the probation report.
Respondent contends that appellant waived the point by failing to raise it in the trial court. We agree with this contention, and therefore do not reach the merits. Appellant’s response that the Fine was an illegal sentence, which can be challenged at any time, overlooks the fact that he is not challenging a sentence, but rather a condition of probation. (See People v. Mauch (2008) 163 Cal.App.4th 669 [where trial court suspends imposition or execution of sentence and instead grants probation under section 1203.1, any fine or county jail term the trial court imposes is not punishment, but rather condition of probation]; see also League of Women Voters of California v. McPherson (2006) 145 Cal.App.4th 1469, 1479-1481 [person serving jail term as condition of probation in felony case is not imprisoned for conviction of a felony within meaning of constitutional provision disenfranchising imprisoned felons].)
Appellant’s counsel objected to the Fine during one of the sentencing hearings, but only on the ground that it was “an awful [sic] steep penalty,” which appellant would have difficulty paying in addition to restitution. On that basis, counsel asked the court to reduce the amount so as to “make it reasonable.” The prosecutor responded that she did not think the Fine was “inappropriate given the fact that he has a prior conviction for the same thing.” Appellant’s counsel did not argue the point further. At the final sentencing hearing, appellant’s counsel asked the court to stay the penalty assessment, but he did not argue the point appellant now raises on appeal.
In the context of probation conditions, a trial court has broad discretion. The court can regulate or prohibit noncriminal conduct in appropriate circumstances, and can even fashion conditions of probation that impinge on a defendant’s constitutional rights. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Bianco (2001) 93 Cal.App.4th 748, 752, disagreed with on other grounds in People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1445-1447; People v. Lopez (1998) 66 Cal.App.4th 615, 624.) Generally, a condition of probation will not be invalidated unless it “ ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality....’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, abrogated on another ground as recognized in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.) Appellant does not contend that any of these characteristics apply to the Fine imposed here.
A challenge to a probation condition is generally waived by the defendant’s failure to object at the time of sentencing. (People v. Welch (1993) 5 Cal.4th 228, 234-238; but cf. In re Sheena K. (2007) 40 Cal.4th 875, 887 [“a challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law” and therefore is not waived by failure to object in the trial court].) Moreover, even challenges to provisions of actual sentences (as opposed to probation conditions) are “deemed waived on appeal [if they] involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner.” (People v. Scott (1994) 9 Cal.4th 331, 354.)
Appellant’s challenge here is essentially that it was improper to impose the second-offense fine on him as a condition of probation, because the second-offense fine would have been procedurally improper as part of an actual criminal sentence. For the reasons stated above, however, the trial court had the discretion to impose the second-offense fine as a condition of probation even if it would have been invalid as part of appellant’s sentence. Moreover, if appellant had raised his argument in the trial court, the trial court could have taken it into account in exercising its discretion as to the appropriate amount of the fine, considered as a probation condition. Accordingly, we decline to address appellant’s argument for the first time on appeal.
Appellant further argues that if the Fine is reversed, the trial court should be ordered to reconsider the 300-day jail term as well. He asserts that the trial court’s decision to impose a jail term of this length as a condition of probation was “influenced by the mandatory requirement of a 90-day sentence for a second-offense violation of Business and Professions Code section 7028, multiplied by three counts of conviction” in the current case. Because we reject appellant’s argument as to the Fine, we do not reach this issue. We note, however, that the 300-day jail term was imposed as a condition of the probation appellant was ordered to serve as a result of all of his convictions, including those for perjury and diversion of funds as well as his unlicensed contracting convictions. Accordingly, we are not persuaded that the trial judge’s decision as to the appropriate length of jail term was derived solely, if at all, from the 90-minimum sentence provision for a second offense of unlicensed contracting.
DISPOSITION
The conviction for solicitation of perjury (count 2) is reversed. In all other respects, the judgment is affirmed. If the trial court’s stay of the imposition of sentence is dissolved, the trial court shall take into account the reversal of appellant’s conviction on count 2 when imposing sentence.
We concur: Reardon, J. Sepulveda, J.