Opinion
D068100
02-07-2018
THE PEOPLE, Plaintiff and Respondent, v. RONALD DUANE DUNHAM, Defendant and Appellant.
Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD246838) APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed in part; reversed in part. Elizabeth Garfinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Between 2004 and 2007, Ronald Duane Dunham (and his agents) persuaded a number of elderly victims to invest over a million dollars with him, ostensibly to purchase undeveloped "lots" of land in Cherokee Village, Arkansas, and/or support Dunham's real estate development efforts there. As alleged by the People, Dunham intentionally misled the victims regarding material facts and, in one instance, embezzled funds with which he was entrusted. Dunham told the victims he would increase land values through the marketing and development of a retirement community, but did not inform them that a third party possessed the exclusive contractual right to sell tax delinquent lots and had a practice of selling its sizeable inventory of lots via online auction—all of which could negatively impact property values and the success of any development venture. The San Diego County District Attorney's Office (D.A.) began investigating Dunham in 2011 after lawyers that had filed a civil lawsuit against Dunham alerted the D.A. to Dunham's possible criminal wrongdoing.
If two victims invested together, the complaint named them as victims together under any given count. For simplicity, we sometimes refer to a couple that invested together by one of their names or in the singular. We further refer to the victims by their first names to protect their privacy interests. We intend no disrespect.
A jury convicted Dunham of 20 counts of grand theft (Pen. Code, § 487, subd. (a)), elder theft (§ 368, subd. (d)), and securities fraud (Corp. Code, §§ 25401, 25540), and found true allegations relating to the amount of losses sustained by individual victims and in aggregate (§§ 186.11, subd. (a)(2), 1203.045, subd. (a), 12022.6, subd. (a)(1)). In addition, the jury found that Dunham's crimes were timely prosecuted in 2013.
Further unspecified statutory references are to the Penal Code.
The jury also convicted Dunham of one count of perjury with respect to a 2012 declaration he filed in a civil lawsuit. (§ 118, subd. (a).) Dunham does not make any particular arguments contesting his perjury conviction, and we do not specifically address it.
On appeal, Dunham challenges the sufficiency of evidence to support his convictions and contends the crimes were not timely prosecuted because the victims had constructive knowledge of the crimes more than four years prior to the date that his prosecutions began. Dunham further contends the trial court committed multiple errors in (1) admitting evidence of prior uncharged acts and his declaration from a civil suit; (2) instructing the jury; and (3) sentencing. Finally, Dunham contends the prosecutor committed misconduct that rendered the trial fundamentally unfair. The parties agree that Dunham could not be convicted of both grand theft and elder theft as to the same victim/transaction because grand theft is a lesser included offense of elder theft.
For reasons we will explain, we reverse Dunham's convictions for grand theft (counts 1, 4, 6, 9, 12 & 18), where grand theft was necessarily included in elder theft. We conclude his remaining convictions are supported by sufficient evidence, were timely prosecuted, and are not reversible on any ground asserted by Dunham. Accordingly, we affirm his remaining convictions.
FACTUAL AND PROCEDURAL BACKGROUND
Cherokee Village was a small northeastern city in the State of Arkansas, with a population of around 4,500 people. The area contained approximately 20,000 undeveloped lots, typically purchased and sold by individuals. The suburban improvement district (SID) maintained the community's roads and amenities (golf courses, lakes, and recreation centers) and provided for its safety needs. Lot owners were required to pay an annual improvement district tax or assessment to the SID; otherwise, the SID could initiate enforcement proceedings that would result in the lots' foreclosures.
At any given time, thousands of lots were in a state of tax delinquency, and the SID experienced continuing financial difficulties as a result. In 2002, two longtime inhabitants of Cherokee Village, Eben Daggett and Ron Rhodes, formed American Land Company (ALC). ALC wished to sell tax delinquent lots to new owners who would pay their taxes, thereby generating revenue for the SID. In November 2002, ALC entered a contract with the SID in which the SID granted ALC the exclusive right to market and sell foreclosable tax delinquent lots (delinquent lots). ALC agreed to pay the SID 5 percent of the gross sales price of any delinquent lot that ALC sold. The contract automatically renewed for five-year terms.
ALC began marketing and selling delinquent lots through an online auction, eBay. On eBay, "the market priced the lots," i.e., the highest bidder would obtain a listed lot. Later, ALC also sold delinquent lots to "dealers," or people who wished to purchase more than 10 lots at a time. According to Rhodes, between 2002 and 2007, the highest price for a general lot, around one-third of an acre in size, was about $3,000 or $3,500.
In 2004, Dunham became interested in Cherokee Village, and Rhodes and Daggett met with him to discuss the dealer program. They explained to him ALC's contract with the SID, including how ALC was able to obtain good title to the delinquent lots and market/sell them. The trio also discussed the prices the lots would sell for on the open market. Dunham wanted to market lots in California.
In March 2004, Dunham proposed a purchase agreement to ALC (letter of intent), which ALC firmly rejected. Dunham sought to obtain 1,000 delinquent lots from the SID's inventory of lots on certain specified terms, including: (1) ALC would cease "all sales and marketing efforts" of lots on the Internet; (2) ALC would agree to a noncompetition agreement; and (3) ALC would give Dunham the exclusive right to market and sell the SID's inventory of delinquent lots for a certain time period. In response, ALC refused to cease its Internet sales; would not agree to not compete under any circumstances; and refused to give Dunham exclusive marketing rights. ALC never subsequently altered its marketing practices and continued selling delinquent lots on eBay. The effect of ALC's continued sales of delinquent lots on its own terms was to compete on pricing. Dunham obtained from ALC two options to purchase a block of 400 lots for $1,000 each.
At the outset, Dunham focused his efforts on selling lots to the victims, but before long, he also sold membership interests in Gold Coast Real Estate Fund, LLC (GCREF), a company he managed. Dunham convinced some of the victims to contribute their purchased lots to GCREF in return for an interest in GCREF. The proposed business of GCREF, according to its private placement memorandum (PPM), included the sales of lots and development of homes in Cherokee Village. Dunham arbitrarily valued lots and interests in GCREF, and on four or five occasions directed his administrative assistant to falsify investors' signatures on required documentation.
Dunham represented to the victims that he controlled in excess of 5,000 lots and that once he controlled all the lots, he was going to build environmentally friendly homes, run a big media campaign, and mark up the prices of the lots. Dunham offered the victims more than just a "dirt lot" in Cherokee Village; he offered a "package of development," i.e., the professional services of Dunham's company to finance, build homes, and/or sell the lots. Dunham did not, however, inform any of the victims of the ALC-SID contractual arrangement described ante. Although the PPM warned of general investment risks, it did not disclose to investors the ALC-SID contract, ALC's exclusive marketing rights, and Dunham's unsuccessful attempts to obtain ALC's rights.
Douglas Fisher and Purvey Martin, paid agents of Dunham, induced almost all of the victims to invest with Dunham. Fisher and Martin were insurance agents by trade with little or no experience in real estate investments; Dunham persuaded both of them to invest in Cherokee Village lots. Dunham told Fisher and other investors: (1) he owned a "broker dealer" firm on Wall Street; (2) he had done about 4,000 real estate deals and was extremely successful in real estate; and (3) he had gained invaluable real estate experience while growing up from his family's business. Fisher was highly impressed by Dunham's apparent success and would relay Dunham's background and plans to his insurance clients.
Dunham regaled Fisher and Martin with his development plans, including a national marketing campaign using celebrity Ed McMahon as a spokesperson. Dunham assured them that his marketing and development plans would increase lot values in a short period of time. He held investor events in his office, on a yacht, and in a La Costa hotel. Dunham did not tell Fisher and Martin anything about the ALC-SID contract, ALC's ability to sell delinquent lots and its practice of doing so on eBay, and ALC's refusal to agree to a noncompetition agreement or to grant him the exclusive right to market delinquent lots. As a result, neither Fisher nor Martin informed their clients and friends about those facts; had they known, they would not have invested in Cherokee Village or recommended the investment to others. Beverly D.'s Lots (Grand Theft, Elder Theft, and Securities Fraud, Counts 1-3) and Promissory Note (Grand Theft and Elder Theft, Counts 4-5)
In 2006, Fisher suggested to his client, Beverly D., a widowed homemaker, that she invest in Cherokee Village. Fisher informed her of what Dunham had said about the project and Dunham's considerable success and experience in real estate. Furthermore, Beverly was told that it would take only one year to achieve a profit, she did not need to do anything but hang on to the investment, there would be an Ed McMahon "publicity program," and Dunham's company would sell the lots for her. In March 2006, Beverly invested $68,999 for nine lots. Beverly attended Dunham's yacht party, where she was introduced to Ed McMahon and where Dunham referred to the attendees as his "family." She continued paying taxes on the lots every year. She did not at any time know the lots' market value and did not know how to sell them. She knew nothing about ALC or its activities; she trusted Fisher and relied on his investment advice.
In October 2006, Beverly was persuaded to invest more money with Dunham. Fisher took her to Dunham's office, where Dunham advised her to borrow $350,000 using the equity in her home and give the money to him to invest. Her home was already paid off, and Beverly was reluctant to invest such a large sum of money and incur a new debt. Dunham assured her that she needed a mortgage interest tax deduction and he would invest the money in GCREF and other real estate. She wire-transferred $350,000 to a bank account for the benefit of "Ron Dunham/Gold Coast Partners." In exchange, Dunham gave Beverly a promissory note with a two-year maturity and stated interest rate of 12 percent.
In October 2008, Beverly called Dunham to get her money back, but he claimed not to have the money to repay her. He wanted to renegotiate the terms of her note and stretch out its due date for up to five years. Dunham's failure to pay Beverly back felt like a "crime to [her]," but she did not think about calling the police. In terms of her specific knowledge of facts, she knew only that he had not paid her back when he originally said he would. Beverly hired a lawyer to communicate with Dunham about repayment, but the lawyer advised her against accepting Dunham's terms. Subsequently, a friend told Beverly about the Gaston & Gaston (Gaston) law firm; she first spoke to a Gaston lawyer in late May or June 2009. Beverly ultimately joined a civil lawsuit led by Gaston in order to get repaid. As of Dunham's trial, she still owned her lots and had not been repaid. Raymond and Caroline M.'s Lots (Grand Theft, Elder Theft, and Securities Fraud, Counts 6-8)
Raymond M. had been retired since 1991 and was formerly a project coordinator for a telephone company. In 2006, he and his wife needed money to take care of their ailing mothers. He talked to Fisher, who suggested they invest in Cherokee Village lots. Fisher was very excited about the project, had purchased lots for himself, and informed them of Dunham's impressive background. Raymond was further informed that Dunham would advertise the lots as a resort with the assistance of Ed McMahon, the lot prices would double as a result, and in a short time period "Dunham's group" would sell the lots for investors. In February 2006, Raymond invested $149,941 to purchase 20 lots (at about $7,500 per lot). He and his wife had no intention of moving to Cherokee Village, and they expected to profit from the lots' sales in about a year. He had no knowledge of the ALC-SID contractual arrangement.
Between May 2006 and December 2007, Raymond did some Internet research on lot prices and questioned Fisher on what seemed like low property values. Raymond was assured by Fisher and Dunham that the lot values were in the range of $11,000 to $14,000 and that Dunham was working on the Ed McMahon commercial. Raymond first met with Gaston in June 2009 because he realized that "nothing [was] happening" to run an Ed McMahon television commercial or increase the lot values. Raymond still had no information regarding the ALC-SID arrangement. At the time of trial, Raymond had paid $21,000 in property taxes on his lots and believed they were each worth $1,200 based on the listed sales price of a neighboring lot. Jay and Marilyne A.'s Lots (Grand Theft, Elder Theft, and Securities Fraud, Counts 9-11)
Marilyne A. contacted Fisher for investment opportunities, who suggested she purchase lots in Cherokee Village. Fisher told her that the Dunham group would run an Ed McMahon television commercial to advertise lots, and then sell or develop the lots for investors. Fisher told her that Dunham was "very well-versed in this type of real estate." In March 2006, Marilyne purchased six undeveloped lots for $46,084, with the intention of profiting from their sales when the Dunham group sold the lots for them. Marilyne considered keeping one of her six lots to build on, but her primary motive was to realize a profit by the time she retired in 2010.
In 2008, Marilyne did Internet research, read a few blogs, and learned that Cherokee Village was generally a "bad investment." She stopped paying taxes on her lots. At some point, she learned from Fisher that a group was suing Dunham to try and get their money back. She did not want to be involved in litigation and thought she had just made a bad investment. She knew nothing about the ALC-SID contractual arrangement and her decision to invest would have "absolutely" been impacted had she known of it. David and Joyce M.'s Lots (Grand Theft, Elder Theft, and Securities Fraud, Counts 12-14) and Investment in GCREF (Securities Fraud, Count 15)
David M. was referred to Dunham through Martin. David had managed a bank's properties (e.g., branch offices) for many years of his career, but had not sold real estate since the 1960's. Joyce M. was a former actress. They were retired when they turned to Martin for investment advice, and they trusted him because he was a good friend. Martin called Dunham a "genius" at real estate and brought him to the couple's house. Dunham described his plans to market the properties, develop them into homes, and resell them for investors. David and Joyce did not intend to live in Cherokee Village or hold on to the properties for long; rather, they needed money for retirement.
In 2005, David invested $50,000 to purchase 13 lots. Subsequently, he and his wife visited Cherokee Village and observed the surroundings. They also attended Dunham's marketing seminars. In February 2007, Dunham persuaded them to contribute their deeded lots to GCREF, and they paid an additional $6,400 in recording and transfer fees. In exchange, they received an interest in GCREF with a stated "paper" value of $98,000.
In 2008 or 2009, David asked whether he could get his money or lots back, but Dunham stated that he could not return anything back yet due to the downturn in the real estate market. David was aware that the economy was in a deep recession and believed that he still held a valuable investment in GCREF. Every year between 2007 and 2012, Dunham sent him a schedule K-1 financial statement showing the value of David's investment ranging between $80,000 to $100,000.
In February 2011, Joyce called Dunham to ask for the couple's money back, to which Dunham responded that he had no money to give her. In or after September 2011, Dunham sent David a letter disclosing a confrontational meeting he had had with another victim, James W. In the letter, Dunham accused James of spreading "misinformation" about the real estate fund, blamed ALC and the SID for keeping property values low, and referenced a lawsuit that Dunham had filed against ALC. Subsequently, David spoke to James.
The incident involving James was documented in a police report.
David was unable to recoup any cash from Dunham. He testified that his decision to invest would have been impacted had he known in advance about ALC's contract with the SID. James and Allison W.'s Investment in GCREF (Grand Theft and Securities Fraud, Counts 16-17)
In 2006, James painted cars for a living. He had recently sold his home and wished to invest the proceeds while he was doing volunteer work. Martin, who was a very close friend, suggested that he invest in Cherokee Village, relaying to James everything he knew from Dunham about GCREF. Martin told James that Dunham's company would develop lots it had acquired at a "good price" and build efficient "smart homes" on the lots. Martin also told James that GCREF would likely pay a 10 percent dividend within a year of operations. James was not informed, prior to investing, of ALC's contractual arrangements with the SID or any of ALC's activities. In December 2006, James invested $250,000 in GCREF. He and his wife then lived abroad for over a year.
In March 2008, James had not received a dividend and began asking Martin and Dunham questions about the fund's operations. Dunham consistently reassured him that the project was delayed, but ongoing. In 2009, James asked orally, and then in writing, for his investment back. Dunham asked him to be patient, told him everything was fine, and told him that he was working on returning his investment. In August 2009, Dunham stated in an e-mail that he may be able to repay James in the next 60 days. In February 2010, Dunham offered to return half of James's investment in the form of property rather than cash.
James first met with Gaston in 2010, but was unable to join the civil lawsuit against Dunham. In September 2011, James confronted Dunham at his home and demanded the return of his money, which prompted Dunham to call the police. Dunham continuously sent James his annual K-1 financial statements through 2013 showing James's fund "value" of over $232,000. Herbert T. and Elizabeth G.'s Lots (Grand Theft, Elder Theft, and Securities Fraud, Counts 18-20)
Herbert T. met Dunham in the late 1970's and trusted Dunham's investment advice over the years. In November 2004, Dunham persuaded Herbert and his wife to invest about $96,200 to purchase lots in Cherokee Village. According to Herbert, "[Dunham] said they had exclusive rights to those properties, those lots. He also said that Ed McMahon was going to be the spokesperson on television commercials to sell these properties. Thirdly, they were going to build state of the art eco-friendly houses, large retirement community on those properties . . . . [T]he value of those lots would go up dramatically, and that's how we would make money, by selling them." Herbert had no experience selling real estate and did not expect to sell the lots; rather, "Dunham and company were going to sell them." Based on what Dunham told him, Herbert expected to realize a profit without needing to do anything except provide Dunham money.
In December 2006, Dunham convinced Herbert to transfer his lots to GCREF. Herbert did not suspect anything was amiss with his investment until he heard that Dunham had filed a lawsuit against ALC and the SID, which was after October 2009. Dunham had not previously told Herbert anything about ALC and, to the contrary, claimed he had "exclusive rights" to sell lots in Cherokee Village. Had Herbert known about the ALC-SID contractual arrangement, he would not have invested in Cherokee Village.
Events Leading to Dunham's Criminal Case
Dunham did not follow through with developing a retirement community in Cherokee Village or running a national marketing campaign. Although unknown to the victims, in early 2008 Ed McMahon prohibited Dunham from using his name or likeness in connection with promotions of Cherokee Village. To the victims, Dunham blamed the real estate market, which experienced a significant "crash" around 2008 and remained depressed on a national scale through 2010. Dunham believed, however, that if he could gain control of more lots from ALC, GCREF investors could still realize a profit. Between 2008 and 2009, Dunham and Charles S., who was hired by Dunham as a lobbyist for GCREF, tried to obtain ALC's agreement to sell GCREF's lots. In the fall of 2009, when their negotiations with ALC failed, Dunham and Charles decided to sue ALC in Arkansas to try and invalidate ALC's contract with the SID. During the course of that lawsuit, Charles learned that the SID was in the process of foreclosing, or had foreclosed, on the lots owned by GCREF. The Arkansas lawsuit, which was unsuccessful, ended in 2011.
Meanwhile, in February 2009, a group of plaintiffs represented by Gaston filed a civil lawsuit against Dunham, alleging various claims including breach of contract and fraud. Beverly and Raymond joined the lawsuit in September 2009. Dunham was deposed in December 2009, and his testimony revealed: (1) he did not own a broker/dealer firm on Wall Street; (2) 90 percent of his career had been spent selling insurance; (3) he had engaged in 20 or 25 real estate transactions since the 1970's; and (4) when he was growing up, he worked in his family's restaurant.
Through the discovery process, the plaintiffs' law firm received a "document dump" from Dunham (consisting of 11 full banker's boxes of documents) in March 2011. After reviewing those documents, plaintiffs' counsel learned the extent of Dunham's prior dealings with ALC, believed Dunham had engaged in criminal wrongdoing, and contacted law enforcement authorities. According to plaintiffs' counsel, their individual clients had "no idea" about Dunham's dealings with ALC.
The D.A.'s investigator, Michael Brown, began investigating Dunham. Brown executed search warrants and uncovered additional relevant documents in Dunham's home. Investigator Brown, who specializes in financial crimes, also interviewed dozens of witnesses and visited Cherokee Village. Through his investigation, Brown discovered that none of the victims were informed, prior to investing their money, of ALC's exclusive right to sell thousands of tax-delinquent lots and, also, many of the victims were told misleading information regarding Dunham's background.
Furthermore, through his investigation, Brown learned that Dunham had set up a highly complicated web of entities, bank accounts, and financial transactions to hide his assets and divert the victims' assets for his own use. For example, Dunham, in 2012, obtained the agreement of apparently unsuspecting third parties to hold what they believed was Dunham's money in their names, transfer it elsewhere, and make Dunham's payments. On paper, Dunham did not appear to profit from the sale of his Laguna Beach home since he placed the home in a trust and caused a trustee (Trustee) to sell the home and wire the proceeds to the bank account of a company called Rodan Enterprises, LLC (Rodan). Rodan was controlled by Dunham, but he made another person the manager and an account signatory. At Dunham's direction, the manager caused Rodan to loan $100,000 to the Trustee and $500,000 to another entity, Chambesy. Dunham caused Chambesy to pay interest to yet another friend, who then used the money to pay Dunham's rent and personal expenses.
Investigator Brown enlisted the assistance of Lisa Medina, a forensic auditor, to analyze 78 bank accounts on which Dunham was a signatory or listed as a control person between 2006 and 2013. Medina reported that Beverly's, Marilyne's, and Raymond's money had been deposited into a trust account entitled "Ronald D. Dunham Trust," which Medina could see he used to pay personal expenses like mortgage, alimony, child support, and taxes. On October 20, 2008, when Beverly's promissory note matured and Dunham supposedly could not pay her back, he was actually a signatory to bank accounts holding approximately $1.9 million. Medina further reported that David's and James's money had been deposited into Dunham-controlled business accounts. Dunham routinely transferred funds from his business and personal accounts into his "Ronald D. Dunham Trust" account—"like his left hand giving money to his right"—and back out to his business and personal accounts. Investigator Brown arrested Dunham in March 2013. Criminal Case Proceedings
In March 2013, the People filed an initial felony complaint against Dunham, including the following people as victims: (1) Beverly, (2) Raymond and Caroline, and (3) Jay and Marilyne. In June 2013, the People amended its complaint to include three more couples as victims: (1) David and Joyce, (2) James and Allison, and (3) Herbert and Elizabeth.
Dunham's first trial resulted in a mistrial. His second trial commenced in October 2014. Dunham was arraigned on and pleaded not guilty to the fourth amended information. Over approximately five weeks, the jury heard the testimony of nearly 30 live witnesses; watched videos of Dunham speaking at a marketing seminar and testifying at a civil deposition; and reviewed dozens of exhibits. Investigator Brown presented a chart at trial showing the named victims, events that witnesses had testified about such as the "document dump," the dates Dunham's prosecution began, and the elapsed time between the events and prosecution.
Prior to closing arguments, the People filed a sixth amended information to correct a "scrivener's error." In the sixth amended information, as to each count, the People alleged (1) the date the victim discovered the crime; (2) the circumstances of his or her discovery; and (3) that the reason why the victim did not have actual and constructive knowledge of the crime earlier than the stated date was that they "were [led] to believe their money was still safe . . . ." Dunham was arraigned on the sixth amended information, waived a formal reading of it, and pleaded not guilty.
On December 15, 2014, the jurors returned their guilty verdicts. The jury also found: (1) three victims sustained a loss exceeding $65,000 (§ 12022.6, subd. (a)(1)); (2) two victims sustained a loss exceeding $200,000 (§ 12022.6, subd. (a)(2)); (3) Dunham committed a theft exceeding $100,000 in value (§ 1203.045, subd. (a)); and (4) Dunham committed two or more related felonies, of which a material element was fraud or embezzlement and involved a pattern of related felony conduct, and the aggregate losses exceeded $500,000 (§ 186.11, subd. (a)(2)).
In 2015, the court held a sentencing hearing at which it denied Dunham's request for probation and imposed a 12-year prison sentence. Dunham filed a timely notice of appeal.
DISCUSSION
I. Sufficiency of Evidence to Support Convictions
A. Legal Principles
1. Grand Theft
The crime of theft may be committed by false pretenses or embezzlement. (People v. Davis (1998) 19 Cal.4th 301, 304-305.) If the defendant took more than $950, the crime is grand theft. (§ 487, subd. (a).)
The People primarily prosecuted Dunham under a theory of theft by false pretenses, which involves the fraudulent or deceitful acquisition of another's funds. (People v. Ashley (1954) 42 Cal.2d 246, 258 (Ashley).) To support a conviction of theft by false pretenses, the People must show that the defendant made a false pretense or representation with intent to defraud the owner of his or her property, and that the owner was in fact defrauded. (Id. at p. 259.) Theft by false pretenses can be committed by suppressing a fact that makes the other communicated facts likely to mislead. (People v. Mace (1925) 71 Cal.App. 10, 21.) A false pretense "may consist in any act, word, symbol, or token calculated and intended to deceive. It may be either express or implied from words or conduct." (People v. Randono (1973) 32 Cal.App.3d 164, 174.) An intent to defraud may be inferred from the acts or admissions of the accused or from surrounding circumstances. (People v. Leon (1958) 163 Cal.App.2d 791, 793.)
"The false pretense or representation must have materially influenced the owner to part with his property, but the false pretense need not be the sole inducing cause." (Ashley, supra, 42 Cal.2d at p. 259.) The element of reliance or causation may be established regardless of whether an investigation would have revealed the defendant's false representations; a victim need not investigate. (People v. Whight (1995) 36 Cal.App.4th 1143, 1152-1153.) " 'Reliance may be inferred from all the circumstances.' " (People v. Miller (2000) 81 Cal.App.4th 1427, 1440-1441.)
Regarding Beverly's $350,000 promissory note, the People prosecuted Dunham under a theory of theft by embezzlement. " 'Embezzlement is the fraudulent appropriation of property by a person to whom it has been [e]ntrusted.' (§ 503.) The elements of embezzlement are '1. An owner entrusted his/her property to the defendant; 2. The owner did so because he/she trusted the defendant; 3. The defendant fraudulently converted that property for his/her own benefit; [and] 4. When the defendant converted the property, he/she intended to deprive the owner of its use.' " (People v. Fenderson (2010) 188 Cal.App.4th 625, 636 (Fenderson), quoting CALCRIM No. 1806.)
2. Elder Theft
Elder theft expressly incorporates, as an element of the offense, the violation of any provision of law proscribing theft or embezzlement, and adds an additional element that the defendant "knows or reasonably should know that the victim is an elder or a dependent adult." (§ 368, subd. (d).) An elder person is 65 years of age or older. (§ 368, subd. (g).)
3. Securities Fraud
Corporations Code sections 25401 and 25540 criminalize the sale of securities by means of oral or written communications that either contain false or misleading statements or omit material facts. (People v. Simon (1995) 9 Cal.4th 493, 496.) Securities fraud can be committed, not only by making "an untrue statement of a material fact," but also by "omit[ting] to state a material fact necessary to make the statements made, in light of the circumstances under which the statements were made, not misleading." (Corp. Code, § 25401.) A fact is material if there is a substantial likelihood that a reasonable investor would consider it important in reaching an investment decision, under all the circumstances. (People v. Butler (2012) 212 Cal.App.4th 404, 421 (Butler).)
A " '[s]ecurity' " includes an investment contract and interest in a limited liability company. (Corp. Code, § 25019.) " 'Whether a particular instrument is to be considered a security within the meaning of the statute is a question to be determined in each case. In arriving at a determination the courts have been mindful that the general purpose of the law is to protect the public against the imposition of unsubstantial, unlawful and fraudulent stock and investment schemes and the securities based thereon.' " (People v. Figueroa (1986) 41 Cal.3d 714, 736, 740 [determination of facts relevant to whether instrument is a security "was for the jury in the first instance, not for the trial court"].)
4. Standard of Review
The standard of review for determining a claim of insufficient evidence in a criminal case is well established. "[W]e review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Stanley (1995) 10 Cal.4th 764, 792.) "This standard applies whether direct or circumstantial evidence is involved." (People v. Catlin (2001) 26 Cal.4th 81, 139.) If the verdict is supported by substantial evidence, we will not substitute our evaluations of the witnesses' credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
B. Grand Theft as a Lesser Included Offense of Elder Theft
The parties agree that grand theft is a lesser included offense of elder theft and that Dunham could not be convicted of both crimes for the same criminal acts. A defendant may not be convicted of both a greater and lesser included offense. (People v. Sanchez (2001) 24 Cal.4th 983, 987.) Dunham does not contest that the People established his knowledge of the victims' ages. We therefore reverse Dunham's convictions for grand theft on counts 1, 4, 6, 9, 12, and 18 relating to elderly victims and any true findings on attendant loss enhancements (§ 12022.6, subd. (a)(1), (2)). As we discuss next, we affirm Dunham's convictions for elder theft.
The trial court imposed a sentence on the grand theft counts but stayed them pursuant to section 654. The court struck any section 12022.6, subdivision (a), loss enhancements for sentencing purposes.
C. Substantial Evidence Supports Dunham's Remaining Convictions
Dunham's convictions for elder theft, grand theft as to James and Allison, and securities fraud are supported by sufficient evidence. The jury could have found that Dunham made a number of false promises or misleading statements in light of the information he knew. Numerous witnesses testified regarding essentially the same story, mutually corroborating each other's testimony. Dunham, either explicitly or implicitly and directly or through his agents, represented to the Fisher-referred victims that he was inordinately experienced and qualified to manage the proposed real estate investment project. In reality, he had spent 90 percent of his adult career selling insurance, had never owned a Wall Street brokerage firm, had not been involved in thousands of real estate transactions, and did not have a family background in real estate. Substantial evidence supports that Dunham misrepresented his qualifications.
Further, Dunham, either explicitly or implicitly and directly or through his agents, represented to the victims that he was able to increase property values after running a marketing campaign, based on controlling a sufficiently large number of Cherokee Village lots. The jury could find that such a representation was false and/or misleading in light of Dunham's knowledge that he did not control SID's inventory of lots. Dunham knew he did not possess the ability to increase Cherokee Village lot values in the manner that he led the victims to believe he did. He had an obligation to disclose ALC's exclusive right to market delinquent lots in order to make other representations he made to the victims not misleading. (E.g., Rogers v. Warden (1942) 20 Cal.2d 286, 289 ["the rule has long been settled in this state that although one may be under no duty to speak as to a matter, 'if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells, but also not to suppress or conceal any facts within his knowledge which materially qualify those stated. If he speaks at all, he must make a full and fair disclosure' "].)
This case is comparable to that of People v. Gordon (1945) 71 Cal.App.2d 606, 612-613, in which the defendants engaged in a fraudulent scheme reselling desert lands to unsophisticated and elderly investors based on representing that the land could be drilled for oil and sold/leased to major oil companies at a great profit. (Id. at p. 612.) In reality, oil companies rarely drilled for oil on any lands they acquired in the area and had only ever acquired land at nominal prices. (Id. at pp. 621-622.) Defendants failed to disclose the true nature and value of the subdivided land. (Id. at pp. 613-618.) Similarly, Dunham promised the victims that he would be able to sell their lots for a significant profit, while failing to disclose that ALC held the right to sell thousands of lots for much lower prices. Also like in People v. Gordon, the victims were under the false impression that Dunham was exceptionally qualified in valuing real estate. (See id. at p. 623 [defendants "asserted a superior knowledge of the lands and rare opportunities to acquire them not available to others"].)
Dunham's specific intent to defraud could be inferred from his own statements and a number of surrounding circumstances, including his knowledge of and failure to disclose the ALC-SID arrangement and availability of lots on eBay; his failure to return some portion of investors' money when he had the opportunity to do so; his failure to inform investors when Ed McMahon disassociated from the project; Dunham's instructing his administrative assistant to falsify signatures on documentation; his arbitrary setting of the lots' value; his diversion of victims' assets for personal use; the elaborate manner in which he concealed assets; and, as we will discuss, Dunham's conduct in other investment schemes.
Moreover, the People established the elements of reliance (false pretenses) and materiality (securities fraud). All the victims referred to Dunham by Fisher and Martin relied to a great extent on their referrers' advice, who in turn relied on Dunham's representations. Dunham interacted directly with victim Herbert. Based on Fisher's, Martin's, Herbert's, and other victims' testimony, the jury could reasonably find that Dunham's false and misleading representations "materially influenced" the victims to invest their money with him. (Miller, supra, 81 Cal.App.4th at p. 1440.) The victims were not in a position to assess the project's viability on their own, and none of them decided to invest based solely on their own assessments. Additionally, various witnesses testified that (1) a manager's qualifications and experience are important to the success of any real estate development project; and (2) control over a significant portion of Cherokee Village lots was critical to the success of Dunham's venture. On this record, the jury could find that Dunham's qualifications and the ALC-SID contractual arrangement (including ALC's exclusive right to sell thousands of delinquent lots) were important facts to a reasonable investor in considering whether to invest.
As to Beverly's promissory note, sufficient evidence supports Dunham's conviction for grand theft by embezzlement. Beverly's age, inexperience, and circumstances made her vulnerable. Dunham effectively became her financial advisor, likening her to "family." Beverly trusted him because Fisher trusted him. She took out a home equity loan and gave $350,000 to Dunham because he reassured her that she would obtain a tax benefit, he would invest it in GCREF, and she would profit in two years' time. Instead, Dunham used the money to pay for his personal expenses. He took elaborate measures to conceal his assets and appear insolvent. The jury's verdict was supported by substantial evidence. (See Fenderson, supra, 188 Cal.App.4th at p. 641 [elderly victim's caregiver who exceeded her authority and withdrew $300,000 from victim's bank accounts for caregiver's own use was guilty of embezzlement].)
For the same reasons we have already discussed, sufficient evidence also supports Dunham's convictions for securities fraud. On appeal, Dunham principally contends the Cherokee Village "lots" did not qualify as securities under the Corporations Code. As to interests in GCREF, Dunham acknowledges that they were securities and mainly argues that statements to GCREF investors were not misleading when considered with the PPM's disclosures.
A transaction is an investment contract, and therefore a security, if it satisfies the "federal test" described in SEC v. W.J. Howey Co. (1946) 328 U.S. 293, 298-299 (Howey). (Consolidated Management Group, LLC v. Department of Corporations (2008) 162 Cal.App.4th 598, 610.) "Under the federal test, an investment contract consists of an investment of money in a common enterprise with the expectation of profits produced by the efforts of others." (Reiswig v. Department of Corporations for State of California (2006) 144 Cal.App.4th 327, 335.) The test disregards form for substance and focuses on economic reality. (Ibid.)
In Howey, the Supreme Court analyzed certain land transactions and discussed that they were investment contracts. (Howey, supra, 328 U.S. at pp. 299-300.) The court noted that the investors, who resided in distant localities and lacked proper experience or the desire to develop the land themselves, were offered "an opportunity to contribute money and to share in the profits of a large citrus fruit enterprise managed and partly owned by respondents." (Ibid.) The court further discussed the unfeasibility of individual development and the investors' reliance on "respondents or third parties with adequate personnel and equipment . . . to achieve their paramount aim of a return on their investments." (Id. at p. 300.) The land sales contracts and warranty deeds served as a convenient way to determine the investors' "respective shares in this enterprise." (Ibid.)
Here, like in Howey, Dunham offered investors an opportunity to contribute money and to share in the profits of a Cherokee Village retirement community, which would be managed, sold, and partly owned by Dunham. The lots represented the victims' "shares in [the] enterprise." (Howey, supra, 328 U.S. at p. 300.) None of the California victims had any ability to develop homes in Arkansas, and they expected "Dunham and company" to sell their lots for them. The victims were relying on Dunham to bring professional management, homebuilding, and financing experience to the project. They had no desire to live in Arkansas themselves, except possibly Marilyne who would consider it after first realizing a profit. The victims sought a return on their investment, and a profitable retirement community required a certain volume of lots to succeed. On a whole, and considering the purpose of our securities laws to protect the public from fraudulent investment schemes, the Cherokee Village lot transactions qualified as investment contracts.
Regarding Dunham's sales of interests in GCREF, the jury necessarily found that the PPM and related documentation did not adequately negate misleading oral statements made to David and James. Substantial evidence supports the jury's finding. Assuming the victims read the PPM in full, many of the disclosures were boilerplate and did not inform investors that ALC possessed the exclusive right to market delinquent lots or any implications from the ALC-SID contractual arrangement. The jury reasonably found that Dunham made materially misleading statements to the investors in GCREF, which were not corrected or clarified by the PPM.
Dunham points out that David and Joyce visited Cherokee Village and attended Dunham's seminars before converting their lots into GCREF shares and that James and Allison represented themselves as accredited investors, i.e., possessing a net worth of over $1 million. Regardless, none of the victims learned of ALC's contractual arrangement with the SID by visiting Cherokee Village or by attending Dunham's seminars. Those events did not contradict what victims had been told. In addition, an offeror/seller of securities may not make false statements in connection with the offer of a security regardless of whether an investor is accredited. (Corp. Code, § 25401; 17 C.F.R. § 230.500 [transactions exempt from registration requirements but not antifraud or state securities laws]).
In summary, substantial evidence supports Dunham's convictions for elder theft, one count of grand theft as to James and Allison, and securities fraud (counts 2, 3, 5, 7, 8, 10, 11, 13, 14, 15, 16, 17, 19 & 20).
II. Statute of Limitations
Dunham contends that counts 1-20 were not prosecuted within the statute of limitations; in particular, he asserts that the People did not meet its burden at trial to prove that the victims did not have constructive knowledge of fraud by March 18, 2009 (as to counts 1-11) or June 21, 2009 (as to counts 12-20) (the 2009 dates). Relatedly, Dunham claims the jury was incorrectly instructed, and given confusing verdict forms, on the statute of limitations.
As we explain, we conclude Dunham has forfeited his arguments with regard to the instructions and verdict forms and, in any event, failed to establish reversible error. We further conclude that the People met its burden to prove that the victims did not constructively discover Dunham's crimes by the 2009 dates, i.e., the victims were not aware of any facts that would have alerted a reasonably diligent person in the same circumstances to the fact that a crime or fraud may have been committed.
A. Additional Background
Prior to trial, Dunham filed a motion to dismiss the case as time barred, contending that the named victims constructively discovered the crimes by February 2009, when a group of plaintiffs represented by Gaston initiated their civil lawsuit against Dunham. The trial court heard evidence on the constructive knowledge issue with regard to Beverly, Raymond, and Marilyne, and ruled that the counts involving them as victims were not time barred as a matter of law (counts 1-11). Subsequently, the People added counts involving the remaining victims. The court heard all of the victims' testimony at the preliminary hearing and denied Dunham's section 995 motion to set aside the operative information.
During trial, the People called the victims as witnesses to testify regarding the extent of their knowledge of Dunham's actions and their Cherokee Village investments. The People also called Gaston attorneys and Investigator Brown to testify about how they came to suspect Dunham's criminal conduct. After closing arguments, the jury was instructed regarding the statute of limitations. The parties agreed on the instruction, based on CALCRIM No. 3410, as follows:
"A defendant may not be convicted of Counts 1 to 20 unless the prosecution began within 4 years of the date the crimes were discovered or should have been discovered.
"In regards to Counts 1-12, the prosecution began on March 18, 2013.
"In regards to Counts 13 to 20, the prosecution began on June 21, 2013.
"A crime should have been discovered when the victim was aware of facts that would have alerted a reasonably diligent person in the same circumstances to the fact that a crime may have been committed.
"The People have the burden of proving by a preponderance of the evidence that prosecution of this case began within the required time. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the People must prove that it is more likely than not
that prosecution of this case began within the required time. If the People have not met this burden, you must find the defendant not guilty of the crimes alleged in Counts 1-19."
In addition, the parties agreed on the verdict forms, which required the jury to write whether Dunham was "guilty" or "not guilty" of the charged offenses. For counts 1-20, the forms called for the jury to write in the word(s) "had" or "had no" to complete the following sentence in pertinent part: "And we further find that the above offense victim of said offense or a law enforcement agency chargeable with the investigation and prosecution of said offense [Had] [Had No] actual or constructive knowledge of said offense within 4 years of the date the prosecution began . . . ." (special finding).
After deliberating, the jury found Dunham guilty and wrote in the word "had" to complete the special finding sentences for counts 1-20.
Outside of the jury's presence, the prosecutor expressed his concerns regarding the verdict forms. The prosecutor believed the jury intended to return a finding of timely prosecutions, but the wording on the verdict forms was confusing because a victim's actual or constructive knowledge of the offense within four years of the date the prosecution began could mean a timely or untimely prosecution. Defense counsel agreed there was a problem and suggested that having the jury write "had no" actual or constructive knowledge would be an unambiguous way for the jury to return a special finding of timely prosecutions if that was the jury's intention. Defense counsel did not object to the court's proposed resolution of speaking to the jury and sending the jury back to further deliberate and/or clarify its special finding if necessary.
In the jury's presence, the court stated that it was "unclear to the court if the jury was finding that the prosecution was timely . . . or whether it was untimely . . . ." The prosecutor indicated that the jury needed to find that the victims "had no" actual or constructive knowledge in order to find Dunham guilty. The court clarified the prosecutor's statement by informing the jury that Dunham could be found "guilty but be outside the statute of limitations, or he can be found guilty and it's within the statute of limitations." The court's final comment to the jury was, "The way I read this [(the forms)] is that you found him guilty on all 21 counts, but you found it was outside the statute of limitations . . . [¶] . . . if that's your verdict, that's your verdict, or [clarify] if it needs to be clarified."
After further deliberations, the jury changed the verdict forms to say that the victims or law enforcement " 'had no' actual or constructive knowledge of [the] said offense within 4 years of the date the prosecution began . . . ." The court then proceeded to poll each juror regarding his or her special finding. The court stated as follows: "I'm going to ask a further clarification since we had that confusion. As to the statute of limitations, was it your finding that the . . . action was filed within the statute of limitations, and that they [(the victims)] had no prior knowledge prior to that . . . ." (Italics added.) Each juror responded, "yes."
B. Instructions and Verdict Forms
Dunham claims the verdict forms and instructions related to the statute of limitations rendered his trial fundamentally unfair. He first argues the verdict forms' use of the terms "actual knowledge" and "constructive knowledge" did not correspond with the language used in CALCRIM No. 3410, which refers to when a crime was "discovered or should have been discovered." As counsel failed to object, the claim is forfeited and, in any event, we conclude that the terms "actual or constructive knowledge" on the verdict forms were reasonably clear and are not what made the forms problematic. "In general, a verdict form need not restate the legal principles provided in proper instructions. Indeed, as a rule it is not reversible error to fail to provide the jury with a verdict form at all [citation] though plainly it is the better practice." (People v. Ochoa (1998) 19 Cal.4th 353, 427-428.) Although a verdict form may not state principles "contrary to the instructions given" (Byrum v. Brand (1990) 219 Cal.App.3d 926, 938), the use of the terms "actual or constructive knowledge" did not contradict the instructions that a prosecution must begin within four years of when a crime is discovered (actual knowledge) or should have been discovered (constructive knowledge).
Dunham next argues that the verdict forms asked an irrelevant question because neither of the special finding options properly resolved the pertinent issue of whether the prosecutions began within four years of the date the crimes were discovered or should have been discovered.
We preliminarily conclude that Dunham forfeited this argument. " 'Failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected.' " (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-264, quoting Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521; see People v. Cleveland (2004) 32 Cal.4th 704, 754 [failure to object to court's actions regarding verdict forms forfeits issue on appeal].) Here, defense counsel did not object to any of the proceedings related to the jury's findings on the statute of limitations, including the court's instructions and questions, prosecutor's arguments, and verdict forms. The alleged defect in the special finding options was readily apparent and discussed at length by the court and counsel. Dunham's counsel agreed with the court's suggested method of addressing the jury regarding the verdict forms and then polling the jury regarding its special finding. Dunham's claim is forfeited.
Indeed, if a special finding on the statute of limitations was required at all, then, as the People concede, the verdict forms should have more appropriately inquired whether the victims or law enforcement had actual or constructive knowledge of the offenses "more than" four years before the date the prosecutions began.
Nevertheless, we conclude the error was harmless because the jury unmistakably found the prosecutions were timely. (See Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1244 [defective special verdict form is subject to harmless error analysis].) A verdict is to be given a reasonable intendment and construed in light of the issues submitted to the jury and the instructions of the court. The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272.) " '[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice.' " (People v. Jones (1997) 58 Cal.App.4th 693, 710-711.) A general verdict of guilty as charged necessarily includes a finding that the prosecution was timely. (People v. Allen (1941) 47 Cal.App.2d 735, 748 (Allen).)
In this case, the jury was properly instructed on the statute of limitations based on CALCRIM No. 3410, which informed the jury that if the People did not meet its burden of proving timely prosecutions, the jury must find Dunham "not guilty." Had the jury written nothing on the special finding portion of the verdict form, its general guilty verdict was a sufficient finding that the prosecutions began within four years of the date the crimes were discovered or should have been discovered. No special verdict or finding was required. (Allen, supra, 47 Cal.App.2d at p. 748.)
However, since the jury was asked to make a special finding, we construe the jury's intention in light of the proceedings. The jury initially wrote that the victims or law enforcement "had" actual or constructive knowledge of the offenses within four years of when the prosecutions began, which could mean a timely prosecution if, for instance, the victim first acquired knowledge of the offense in 2011, or could mean an untimely prosecution if a victim had knowledge of the offense by 2009. We are convinced the jury found the prosecutions timely, since it was informed that leaving the forms unchanged meant a finding that the prosecutions began "outside the statute of limitations," which the court stated was a permissible outcome, but the jury chose instead to change the verdict forms to the "had no" option, which the jury had been told would indicate a timely prosecution. When polled, the jury confirmed its special finding that the action was filed within the statute of limitations. Under the circumstances, the jury unmistakably found Dunham guilty and that the prosecutions began within the statute of limitations.
Due to the ambiguity in language on the verdict forms, we conclude the court did not err in addressing and asking the jury to clarify its special finding. (See § 1156 ["If the jury do not, in a special verdict, pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, or if they find the evidence of facts merely, and not the conclusions of fact, from the evidence, as established to their satisfaction, the court shall direct the jury to retire and return another special verdict. The court may explain to the jury the defect or insufficiency in the special verdict returned, and the form which the special verdict to be returned must take."].)
Dunham identifies a particular error in the jury instruction and verdict form for count 15, securities fraud relating to David and Joyce's investment in GCREF. The instructions and form for count 15 listed the date prosecution began as June 21, 2013, even though count 15 was added on December 2, 2014. We conclude that Dunham's claim has been forfeited since defense counsel agreed to the date that prosecution began. (People v. Simmons (2012) 210 Cal.App.4th 778, 794 [defendant's failure to request a specific instruction regarding the date that crimes had to have been committed in order for prosecution to be timely was forfeited when information was facially sufficient]; People v. Smith (2002) 98 Cal.App.4th 1182, 1193 [trial court has no sua sponte duty to instruct on statute of limitations].)
Furthermore, we conclude the error was harmless beyond a reasonable doubt. (People v. Bell (1996) 45 Cal.App.4th 1030, 1065-1066.) The jury implicitly found that David and Joyce had no actual or constructive knowledge of the offense as of June 21, 2009, four years before June 21, 2013. Based on our review of the record and as discussed in further detail post, neither David nor Joyce learned of any new or additional facts between June 2009 and December 2010 that would have alerted a reasonably diligent person in the same circumstances to the fact that fraud had occurred. Instead, the couple continued to expect that they would eventually receive a return on their investment. Thus, there was no prejudice from the alleged instructional error.
C. Whether the People Met Its Burden of Proof
Dunham contends that the People failed to prove at trial that each victim lacked constructive knowledge of fraud by the 2009 dates. The People assert that the victims could not have reasonably discovered Dunham's fraud by the 2009 dates. We conclude that the People met its burden to prove at trial that it was not possible for the victims to discover fraud prior to the 2009 dates with the exercise of reasonable diligence. (People v. Zamora (1976) 18 Cal.3d 538, 566 (Zamora).)
1. Legal Principles
"The statute of limitations for defendant's crimes was four years 'after discovery of the commission of the offense . . . .' (Pen. Code, § 801.5, see § 803, subd. (c).) 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.' [(Zamora, supra, 18 Cal.3d at pp. 571-572.)] 'However, discovery of a loss by the victim alone is insufficient to trigger the running of the limitations period: "Literally, . . . discovery of a loss, without discovery of a criminal agency, is not enough." [Citation.]' (People v. Soni, supra, 134 Cal.App.4th at p. 1518; see People v. Lopez (1997) 52 Cal.App.4th 233, 246, fn. 4.) 'The question is whether there is sufficient knowledge that a crime has been committed.' (People v. Crossman (1989) 210 Cal.App.3d 476, 481.)" (People v. Petronella (2013) 218 Cal.App.4th 945, 956 (Petronella).)
Moreover, even when facts are sufficient to arouse suspicion in a reasonable victim, subsequent reassurances by the defendant may operate to reasonably allay concerns and delay the discovery of the fraud. (See Garrett v. Perry (1959) 53 Cal.2d 178, 181-182 [trial court could reasonably find that plaintiff's suspicions "were allayed by defendant's subsequent reassurances"]; Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 966 ["Even if the plaintiff discovers some suspicious circumstances, his reliance is reasonable if the defendant allays his doubts with further assurances."]; Brownlee v. Vang (1965) 235 Cal.App.2d 465, 476 [defendant's "[f]urther representations . . . , designed to allay the suspicions of the plaintiff, were themselves misrepresentations calculated to deceive. That they accomplished their purpose should not now redound to the benefit of the defendant."]; Blackman v. Howes (1947) 82 Cal.App.2d 275, 279, ["A buyer is not chargeable with knowledge of conditions which he fails to discover because of some deception of the seller. [Citations.] When . . . the buyer has only a suspicion of fraud and the seller lulls the buyer into inaction by a false representation, the seller will not be permitted to assert that the buyer lost his rights by accepting the assurance of the seller that there was no fraud. [Citation.]"].)
"The issues of when [the victim] actually learned of defendant's fraud and whether, through the exercise of reasonable diligence, it could have discovered the fraud earlier, presented questions for the jury to decide. [Citation.] 'When an issue involving the statute of limitations has been tried, we review the record to determine whether substantial evidence supports the findings of the trier of fact.' [Citations.]" (Petronella, supra, 218 Cal.App.4th at pp. 956-957; Zamora, supra, 18 Cal.3d at p. 573 [reviewing record for substantial evidence to support the jury's implied findings that reasonable diligence was exercised to discover the fraud by a date within three years of date of prosecution].)
2. The Record and Analysis
In our view, a victim's retention of Gaston's attorneys, who alleged in a civil suit that Dunham committed fraud in promoting Cherokee Village, constituted circumstances sufficient to make the victim suspicious of fraud; a victim did not need to know specific misrepresentations that Dunham made or exactly how he committed fraud in order to trigger the running of the limitations period. Nevertheless, in this case the victims' first contacts with Gaston occurred within the limitations period, or, the victims did not contact Gaston or have notice of the lawsuit's allegations. Whether the victims could have earlier interacted with Gaston was an issue for the jury to decide.
Regarding Beverly, she knew in October 2008 that Dunham failed to pay her back on her promissory note, but at the same time, he made various offers to renegotiate the loan, including to extend the note's maturity date out for five years. Dunham blamed the real estate market for his need to repay Beverly at a later date, and the real estate market had, in fact, "crashed." Under the circumstances, a reasonable victim would not have been on notice of fraud or a crime. "[D]iscovery of a loss by the victim alone is insufficient to trigger the running of the limitations period[.]" (People v. Soni (2005) 134 Cal.App.4th 1510, 1518.) Although Beverly stated at trial that Dunham's failure to repay felt like a "crime to [her]," the jury could reasonably infer that she was speaking in a colloquial sense since the only fact she knew was that he was seeking to pay her later than he had initially promised. The first meeting Beverly had with Gaston was in May or June 2009, and she testified that she hired Gaston in order to get repaid. Accordingly, the initiation of Dunham's prosecution in March 2013 was timely.
Regarding Raymond, he observed seemingly low lot prices in 2006 and 2007, but was reassured by Dunham and his agents that the lot prices were actually much higher. A jury could reasonably find that Raymond was not on notice of fraud since Dunham purported to be an expert in real estate, claimed to possess special knowledge regarding the Cherokee Village real estate market, and promised to increase prices after running a marketing campaign. Based on Dunham's and Fisher's assurances, Raymond believed that Dunham was still working on an Ed McMahon commercial. It was only through the passage of time that Raymond came to suspect Dunham had lied about the project. Raymond's first contact with Gaston was in June 2009. The initiation of Dunham's prosecution in March 2013 was timely.
Regarding Marilyne, in 2008 she had to decide whether to continue paying real estate taxes on her lots. She went online and read a few blogs, including comments by "disgruntled people," which generally indicated that Cherokee Village was a "bad investment" and that Dunham was not being truthful about the project's prospects. Given the downturn in the real estate market, Marilyne decided she had simply made a bad investment and would not keep paying taxes on her lots, effectively accepting an investment loss. She learned at some point that a group was suing Dunham, but did not want to get involved in litigation. The question before us is whether, on this record, Marilyne could be charged with knowledge of Dunham's fraud by March 2009. We think not. The jury could reasonably find that unattributed blog comments were not sufficient to put Marilyne on notice of fraud and that she reasonably declined to retain an attorney for what she believed was merely an unsuccessful investment.
Regarding James, Dunham informed him that the project was delayed by the economy and Dunham's illness. Throughout 2009, Dunham reassured James that it was only a matter of time before Dunham could return his money. For instance, in August 2009, Dunham said he might be able to repay James in 60 days. In February 2010, Dunham offered to partially repay James with lots. Meanwhile, James received annual K-1 financial statements showing the value of his investment in GCREF. Under the circumstances, the jury could find that Dunham's promises to return James's investment delayed his discovery of fraud. Likewise, contrary to Dunham's assertion on appeal, the jury could find that the PPM for GCREF would not have caused a reasonable investor to suspect fraud, since the document contained fairly boilerplate language of investment risks. James did not contact Gaston until 2010.
Herbert did not suspect anything was wrong with his investment until he heard about Dunham's Arkansas lawsuit against ALC, which did not begin until at least October 2009. Herbert viewed Dunham as his financial advisor and trusted him like a family member.
Finally, regarding David and Joyce, our review of the record persuades us that they were not on notice of fraud prior to 2011. Knowing that the real estate market had "plummeted" in 2008, they accepted Dunham's explanations for delays and why he could not yet return the couple's money in 2008 or 2009. They had no reason to suspect that their investment in GCREF was gone. Dunham told them that the market had gone down, he had been ill, he needed more time to increase property values, and things were still moving forward. David continued believing he held a substantial investment in GCREF as shown on his K-1 financial statements that Dunham sent him every year through 2012. Substantial evidence supports a finding that the couple had no reason to suspect fraud before June 2009.
However, at some point after September 2011, Dunham sent David a letter disclosing the Arkansas lawsuit against ALC and the ALC-SID contractual arrangement. At that point, with the exercise of reasonable diligence, Dunham's fraud could have been discovered. David and Joyce's constructive knowledge of fraud in 2011 would mean that Dunham was timely prosecuted in 2013 (as to counts 13-14) and 2014 (as to count 15).
In summary, substantial evidence supports the jury's implied finding that a reasonably prudent person in each of the victim's positions would not, with the exercise of reasonable diligence, have discovered that he or she was the victim of fraud by March or June 2009. Counts 1-20 were not barred by the statute of limitations.
D. Denial of Pretrial Motion
Dunham argues the People did not meet their burden of proving the prosecutions were timely at the preliminary hearing, and his section 995 motion to set aside the operative information should have been granted. "[A]n erroneous denial of a section 995 motion justifies reversal of a judgment of conviction only when a defendant is able to demonstrate prejudice at trial flowing from the purportedly inadequate evidentiary showing at the preliminary hearing." (People v. Crittenden (1994) 9 Cal.4th 83, 136-137.) "Where the evidence produced at trial amply supports the jury's finding, any question whether the evidence produced at the preliminary hearing supported the finding of probable cause is rendered moot." (Ibid.) Because the evidence received at trial supports the jury's finding of timely prosecutions, Dunham's contention with regard to his section 995 motion is moot.
III. Evidentiary Issues
A. Evidence of Prior or Other Misconduct
Dunham argues the court improperly admitted evidence of his prior or other misconduct. The People moved in limine under Evidence Code section 1101, subdivision (b), to introduce evidence regarding Dunham's dealings with other investors and their failed investments to show his intent to defraud the Cherokee Village victims. Defense counsel objected on the ground that the evidence was essentially propensity evidence. The court granted the People's motion and stated that it would allow the evidence for the purpose of showing "intent or absence of mistake." We summarize some of the evidence below.
1. Admitted Testimony
During trial, the jury heard testimony from G.S, Steven D., John N., and Charles. The jury was instructed at the start of G.S.'s testimony that it could only consider his testimony as evidence of intent to defraud. At the behest of Dunham in 2005, G.S. exchanged his Laguna Beach property worth over $2 million for Cherokee Village lots of supposedly equal value. Dunham guaranteed G.S. would recoup a large amount of cash in a year. In 2006, instead of paying him back, Dunham convinced G.S. to transfer the lots to a company called "Vision," which would sell the lots "through an infomercial." G.S. complied, but never got any money out of the deal. Dunham later told him that someone else in Cherokee Village was selling lots for less than Dunham could, causing the investment to fail.
To the extent Dunham challenges the testimony of witnesses Lance Hall and Herbert as improperly admitted prior acts evidence, the claim is forfeited for his failure to specifically object to their testimony. Hall and Herbert were percipient witnesses. Moreover, their testimony was not improperly admitted for the same reasons discussed herein.
The jury was similarly instructed that Steven's testimony was being introduced for the limited purpose of showing intent to defraud. Steven and his wife gave Dunham $200,000 to invest in an energy company (Stirling), which Dunham said "would go public" in six or 12 months. The company did not go public or "go anywhere," and eventually went bankrupt. Steven and his wife also invested $280,000 in GCREF. In 2008, Steven discovered problems with the finances of GCREF and organized a meeting with Dunham to get some answers. According to Steven, Dunham misspent the funds of GCREF, e.g., overpaid himself management fees, did not have supporting paperwork for over a half million dollars in Cherokee Village properties, spent $652,000 to purchase a Laguna Beach property unrelated to Cherokee Village, purchased art for his office, spent excessively on attorney fees, and funded his own health insurance. Steven believed that Dunham "use[d] assets from the Gold Coast Real Estate Fund for his personal needs."
John was also advised by Dunham to invest in Stirling before it went public. John contributed over $200,000 to Rodan. Dunham told him that Rodan was holding shares in a company called JRM Ventures, which in turn held shares in Stirling. Dunham further told John that he would not lose money because he was a part owner of Rodan, but later refused to recognize John's ownership interest. John lost his entire investment.
Charles had been a lobbyist for Stirling and testified that Stirling "never had any generic plans or real plans to go public." Because Charles was heavily invested in GCREF, he worked with Dunham to try and alleviate or undo the ALC-SID contractual arrangement. During their legal proceedings against ALC, Charles found out that all of the lots held by GCREF had been or were being foreclosed for failure to pay taxes. In Charles's opinion, Dunham's telling GCREF investors that lots were worth $7,200 "was a scam" because Dunham knew he could buy a lot for $700. Further, Charles believed that "there was never a market in Cherokee Village. Mr. Dunham fabricated the market in Cherokee Village."
2. Analysis
Under Evidence Code section 1101, subdivision (a), evidence of prior misconduct is generally not admissible to prove an individual has a propensity to commit crimes in general or the crimes charged. However, such evidence is admissible to prove some other fact such as motive, opportunity, intent, preparation, knowledge, identity, or absence of accident or mistake. (Evid. Code, § 1101, subd. (b); People v. Balcom (1994) 7 Cal.4th 414, 422 (Balcom); People v. Kipp (1998) 18 Cal.4th 349, 369.) Evidence of other acts or uncharged crimes is admissible to prove that a defendant possesses the requisite specific intent in the charged crime. (People v. Gallego (1990) 52 Cal.3d 115, 171 [where defendant admitted act of killing but denied intent to kill, evidence that defendant had killed others was admissible to prove intent and motive].)
"The probative value of this evidence stems from the similarity between the uncharged offenses and the charged offenses . . . ." (Balcom, supra, 7 Cal.4th at p. 427.) "The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . .' [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) A greater degree of similarity is required to prove the existence of a common design or plan. (Ibid.)
The court must further determine whether the probative value of defendant's prior misconduct is "substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; Ewoldt, supra, 7 Cal.4th at p. 404.) We review a trial court's evidentiary rulings for abuse of discretion. (People v. Gray (2005) 37 Cal.4th 168, 202 (Gray).)
We conclude the trial court did not abuse its discretion in admitting evidence of Dunham's prior misconduct for the purpose of showing intent to defraud the Cherokee Village victims and an absence of mistake. His defense was primarily that he had made a mistake and did not intend to defraud investors. Yet in Dunham's current and past investment schemes, innocent investors would fund his companies and suffer the brunt of losses, while he seemed only to benefit from the use of investors' funds. Dunham's dealings with the witnesses was sufficiently similar to his dealings with the victims to negate mistake. Most of the witnesses described the same investment opportunity in Cherokee Village as the one presented to the victims. Regarding investments in Stirling, Dunham told investors the company was soon "going public," which caused them to give him or his companies large sums of money. However, Stirling did not ever have "real plans" to go public, and it eventually went bankrupt. The similar results supported an inference that Dunham probably harbored an intent to defraud.
Although these witnesses' testimony was lengthy, we cannot say the court abused its discretion in implicitly finding that the probative value was not substantially outweighed by the danger of undue prejudice or confusion. The prior act witnesses had more direct interactions with Dunham than the victims. For example, Charles was a coplaintiff with Dunham to sue ALC, and Hall was a real estate agent who visited Cherokee Village with Dunham. They had greater insight into Dunham's plans and state of mind. The witnesses' testimony was no more inflammatory or emotional than the elderly victims' testimony.
Dunham argues the jury was incorrectly instructed that it could consider prior misconduct evidence to determine whether he had a plan or scheme to commit the charged offenses. The People argue the error was harmless in light of the instruction that the evidence could be considered to infer Dunham's intent to defraud, the strong evidence of his guilt, and admonitions to the jury during the witnesses' testimony that the evidence was being introduced on the issue of intent.
Assuming that Dunham's prior misconduct could not be considered as evidence of a common plan, we conclude any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Malone (1988) 47 Cal.3d 1, 22 [error in admitting other-crimes evidence is reviewed under Watson standard].) It is not reasonably likely Dunham would have obtained a more favorable result because evidence of his prior misconduct was properly admitted for the purpose of showing his intent to defraud, and the jury was instructed to consider it for that purpose. (See Gray, supra, 37 Cal.4th at p. 204 [assuming error to admit evidence on the issue of intent to commit rape and sodomy, admission could not have been prejudicial because evidence was properly admitted on the issues of identity and intent to kill].) The jury was specifically so instructed during a few of the witnesses' testimony, and the prosecutor repeatedly argued the jury should consider Dunham's prior misconduct on the issue of intent to defraud, as pertained to the theft by false pretense counts. It is unlikely the evidence was improperly used, and ample evidence irrespective of Dunham's prior misconduct established the elements of each charged offense. There was no reversible error.
B. Dunham's Declaration
Dunham contends the trial court erroneously admitted a declaration he filed in the civil suit because it contained a legal conclusion and/or his expert opinion on a question of securities law. Specifically, Dunham declared that the plaintiffs' 2006 Cherokee Village lot transactions constituted "securities products," and the lots could have been exchanged for units in GCREF. He did not previously object to admitting the declaration on this ground, and the court had no opportunity to rule on whether Dunham's declaration constituted an expert opinion or legal conclusion. His claim on appeal is forfeited. (People v. Nelson (2012) 209 Cal.App.4th 698, 711.) In any event, the declaration was properly admitted as a party admission (Evid. Code, § 1220) and contained facts that were clearly relevant to the "investment contract" analysis. The court did not err.
IV. Jury Instructions
A. Unanimity
Dunham contends the jurors received two improper nonunanimity instructions. First, they were instructed they did not need to agree on the form of theft, as follows: "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." (CALCRIM No. 1861.) Dunham argues that under the evidence presented, the jury may not have unanimously agreed on all the elements of either false pretenses or embezzlement. (People v. Williams (2013) 57 Cal.4th 776, 785-786; People v. Davis (2005) 36 Cal.4th 510, 561; see CALCRIM No. 3500 [standard unanimity instruction].) Second, Dunham argues the jury was erroneously instructed that unanimity was not required as to particular misrepresentations or omissions in the context of securities fraud. We conclude there was no reversible error.
1. Applicable Standards
The jury unanimity requirement ensures that for a conviction to be valid, the defendant is found guilty of the specific crime of which adequate notice has been given in the charges and trial proceedings. (People v. Russo (2001) 25 Cal.4th 1124, 1132 (Russo) [jury did not have to unanimously agree on a specific overt act of conspiracy]; see Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234, 1237-1238.) "Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Russo, at p. 1132.) "On the other hand, where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (Ibid.)
"This requirement of unanimity as to the criminal act 'is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' " (Russo, supra, 25 Cal.4th at p. 1132.) "In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (Id. at p. 1135.)
Where "the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct," and the same basic defense is offered, the jury would not have any reasonable basis for distinguishing between them and are not required to hear the unanimity instruction. (People v. Dieguez (2001) 89 Cal.App.4th 266, 275, citing People v. Stankewitz (1990) 51 Cal.3d 72, 100.)
2. Record and Analysis
During closing argument, the prosecutor told the jury that Dunham was being prosecuted under a theory of theft by false pretenses, except for Beverly's promissory note, where the People's theory was theft by embezzlement. The court instructed the jury that Dunham was charged in counts 1, 6, 9, 12, 16 and 18 with grand theft by false pretenses and in counts 4 and 5 with grand theft by embezzlement, and specified the elements of those offenses accordingly. The jury also received predeliberation instructions, including a requirement that the verdict on each count must be unanimous. (See CALCRIM No. 3550.)
The written instruction for grand theft by false pretenses initially included count 4, but in response to a jury note pointing out the duplication, the court instructed the jurors to disregard count 4 in the grand theft by false pretenses instruction. In any event, because we are reversing Dunham's conviction for count 4, any error in instruction as to count 4 is moot.
We conclude there was no reasonable likelihood the jury did not agree on a "particular crime" because the prosecution elected to prosecute each theft count under a particular theory of theft. (Russo, supra, 25 Cal.4th at p.1134; Davis, supra, 36 Cal.4th at p. 561 [potential error when prosecution does not elect which of two distinct acts of robbery it was relying on to prove robbery].) The jury was instructed to determine whether Dunham was guilty of theft by false pretenses except as to Beverly's promissory note, where the jury was instructed to determine whether Dunham was guilty of theft by embezzlement. Any error in giving CALCRIM No. 1861 was harmless.
The jury was also instructed, in connection with Dunham's securities fraud charges, that Dunham "is accused of having knowingly made multiple misrepresentations or material omissions," and the People "must prove beyond a reasonable doubt that the defendant engaged in this course of conduct." The court instructed the jury that unanimity was not required as to particular misrepresentations or omissions so long as each juror was convinced beyond a reasonable doubt Dunham committed some misrepresentations and material omissions that proved his course of conduct.
The court did not err. (Butler, supra, 212 Cal.App.4th at p. 426 ["jurors were not required to agree on the particular misrepresentations or omissions they relied on for the convictions [for securities fraud] because that finding merely relates to the manner of committing the crime"].) Each count of securities fraud alleged that Dunham sold one security on a specific date. The court instructed the jury on the elements of securities fraud, which required the People to prove Dunham knowingly made a material misrepresentation or omission in connection with the offer or sale of a security. The evidence showed, however, that Dunham made compounding and interrelated false and misleading statements, to deceive his agents Fisher and Martin and, through them, most of the victims. The jurors were not required to agree on the same material misrepresentation or omission to unanimously agree that he was guilty of one crime of securities fraud. (Accord, Russo, supra, 25 Cal.4th at p. 1135.) Thus, there was no instructional error.
B. Instructions on Theft
Dunham argues the court had a sua sponte duty to define the term "obligation" where it was used in the standard instruction for theft by false pretenses. The court instructed the jury with a modified form of CALCRIM No. 1804, which states that a false pretense includes "not giv[ing] information when [defendant] has an obligation to do so." (Italics added.) Similarly, Dunham argues the court had a sua sponte duty to define the "trust" element where it was used in the standard instruction for theft by embezzlement, i.e., Beverly must have entrusted her property to Dunham "because . . . she trusted the defendant." (CALCRIM No. 1806, italics added.)
Trial courts have a sua sponte duty to instruct the jury on general principles of law governing the case, which are those connected with the evidence and necessary for the jury's understanding of the case. (People v. Estrada (1995) 11 Cal.4th 568, 574.) "As to pertinent matters falling outside the definition of a 'general principle of law governing the case,' it is 'defendant's obligation to request any clarifying or amplifying instruction.' " (Ibid.) Likewise, a court's duty to instruct on the general principles of law does not extend to instructions that "pinpoint" a theory of defense. (People v. Webster (1991) 54 Cal.3d 411, 443.)
Here, the trial court gave approved jury instructions regarding the offenses of theft by false pretenses and embezzlement. Defense counsel did not request clarification or amplification of the terms "obligation" or "trusted," and we are not convinced the trial court had a sua sponte duty to do so. The terms are commonly understood, and Dunham has not demonstrated they have different nonlegal and legal meanings. He incorrectly argues the "trust" element in embezzlement requires a fiduciary relationship. In People v. Wooten (1996) 44 Cal.App.4th 1834, the court stated: "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." (Id. at p. 1845.) Wooten does not suggest that a "relation of trust and confidence" may only be achieved through a fiduciary relationship. (Ibid.) The court had no duty to expand upon the meanings of the terms "obligation" and "trust" in the absence of a specific request.
V. Prosecutorial Misconduct
Dunham challenges a number of the prosecutor's statements before the jury as misconduct that he contends rendered his trial fundamentally unfair. Dunham failed to preserve his right to challenge most of the alleged misconduct and, in any event, there was no misconduct.
" ' "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury . . . " 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument. [Citation.]' [Citation.] A failure to timely object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm." (People v. Linton (2013) 56 Cal.4th 1146, 1205.)
A. Alleged Misstatements of Law
During closing argument, the prosecutor stated:
"Either side in this case has the obligation to produce all evidence or call all witnesses imaginable in the case, but if there is logical evidence that could have been presented by either side, it is fair to comment on the defense inability to present other checks and other money."The court sustained defense counsel's objection as a misstatement of law on the burden of proof and admonished the jury that the court would instruct on the issue with a specific instruction. During his closing argument, defense counsel criticized the People for not producing certain evidence regarding ALC and argued that the evidence was nonexistent in light of the fact that the information would be "available particularly" to the government due to subpoena powers. In rebuttal, the prosecutor argued:
"There is an instruction that says neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant, so the defendant is presumed innocent, and we've always told you from day one we have the burden of proof beyond a reasonable doubt. [Dunham] has no obligation to prove anything, and now we're being attacked because we didn't subpoena the eBay records. Well, there is no doubt that [ALC] never stopped selling their eBay lots."Defense counsel did not object to or request an admonition for the prosecutor's rebuttal comments. On appeal, Dunham argues that the prosecutor's rebuttal comments were improper.
The prosecutor did not commit misconduct. The prosecutor was anticipating and rebutting the notion that the People failed to produce certain records to establish ALC's sales of lots on eBay. The jury would not reasonably construe the prosecutor's comments as shifting the burden of proof, since he made clear that Dunham was not required to call any witnesses or produce any evidence and that the People had the burden of proof.
Dunham also contends the prosecutor misstated the law regarding securities fraud, unanimity, circumstantial evidence, constructive notice and loss enhancements. In some instances, Dunham did not object to the prosecutor's statements and, when he did, the court sustained his objections. Dunham's counsel did not request any curative admonitions. Based on our review of the record, timely objections and requests for admonition would not have been futile. The court sustained defense objections to perceived misstatements in the law regarding the prosecution's burden and admonished the jury that the court would instruct on that issue (see ante). As a result, Dunham's claim is forfeited as to other alleged misstatements of law. (People v. Edwards (2013) 57 Cal.4th 658, 736.)
Nevertheless, we have reviewed the prosecutor's remarks and conclude there was no misconduct. The prosecutor would typically read the law from the jury instructions, and then go on to apply the law to the facts. The prosecutor reiterated to the jury at the outset of his argument that "the packet" of written instructions was "the official instruction." His explanation of the law was not misleading simply because he emphasized certain legal elements or used shorthand terminology. Closing arguments were relatively long given the number of crimes and facts to review, and the prosecutor was entitled to focus more attention on certain elements to the exclusion of others. If he misspoke, he would go back to the written instructions. The prosecutor's methods were not reprehensible or deceptive.
B. Comments Regarding Deliberative Process
Dunham contends the prosecutor improperly demanded a verdict from the jury and invited them to consider "extraneous factors." The prosecutor urged the jurors to try and reach a verdict, e.g., "Your goal is not to come here and waste your time. Your goal is to have a verdict." The prosecutor had earlier mused to the jury, "Imagine having to do this case over again." Defense counsel's objections were sustained, and he declined the court's offer for a curative admonition.
The claim is forfeited and, in any event, did not rise to the level of misconduct. The court properly instructed the jury to "try to agree on a verdict if you can." The prosecutor corrected himself later on in closing argument to specifically refer to the official instruction and urged the jurors to "be patient" with each other. In context, the prosecutor's comments merely reiterated the jury's responsibilities and did not invite them to consider factors outside of the evidence.
C. Comments Regarding Defense Counsel
Dunham contends the prosecutor frequently denigrated defense counsel, citing instances where the prosecutor argued that defense counsel was misstating the law and an instance where the prosecutor laughed (and later apologized) during counsel's argument that the People had not sufficiently investigated Dunham's real estate experience.
"A defendant's conviction should be based on the evidence adduced at trial, and not on the purported improprieties of his counsel. [Citation.] When a prosecutor denigrates defense counsel, it directs the jury's attention away from the evidence and is therefore improper. [Citation.] In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor's comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter." (People v. Frye (1998) 18 Cal.4th 894, 978.)
Here, Dunham did not object to any of the prosecutor's comments and therefore forfeited his claim. In any case, the prosecutor did not denigrate defense counsel or impugn his integrity. The prosecutor explained that the "lack of investigation" argument was ludicrous, as shown by specific evidence in the case establishing Dunham's lack of real estate experience—his deposition testimony. In addition, when the prosecutor argued that defense counsel had misstated the law, it was in the context of applying a specific legal element to the facts. The prosecutor's remarks were a fair response to defense argument challenging the sufficiency of evidence to meet certain legal elements. In each instance, the prosecutor refocused and redirected the jury to the evidence adduced at trial. The prosecutor's comments were not improper.
D. Use of Hypotheticals
Dunham asserts the prosecutor used unnecessarily inflammatory hypotheticals during his closing argument, and the hypotheticals involved crimes like rape, molestation, and murder. The claim is forfeited to the extent Dunham failed to object and, in any event, did not constitute prosecutorial misconduct. For example, when explaining the difference between direct and circumstantial evidence, the prosecutor used the example of a rape victim's testimony identifying her assailant (direct evidence) versus DNA (circumstantial evidence). The prosecutor was trying to illustrate legal principles relevant to the jury's role, and no reasonable juror would misconstrue the prosecutor's hypothetical examples. (See People v. Davis (1995) 10 Cal.4th 463, 537-538.)
E. Violation of Court Order
Dunham contends the prosecutor intentionally violated the court's order regarding the admission of prior misconduct evidence for a limited purpose. (See pt. III.A.) This claim is meritless. Defense counsel did not object to the jury instructions or the prosecutor's recitation of the law, and the prosecutor repeatedly argued the prior misconduct evidence was introduced to show Dunham's intent to defraud. The record does not support that the prosecutor intentionally violated a court order.
F. Cumulative Error
Dunham contends the cumulative impact of the prosecutor's misconduct and/or trial court's errors requires reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) " '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.' " (People v. Cunningham (2001) 25 Cal.4th 926, 1009 (Cunningham).)
As we have discussed, the prosecutor did not commit misconduct and, in any event, there was no cumulative prejudicial effect. (People v. Martinez (2003) 31 Cal.4th 673, 704.) Additionally, based on our review of the entire record, the trial court's few errors were harmless and did not individually or collectively deprive Dunham of a fundamentally fair trial. "[Dunham] was entitled to a fair trial but not a perfect one." (Cunningham, supra, 225 Cal.4th at p. 1009.) There was no violation of due process.
VI. Sentencing
Dunham contends his sentence must be reversed because (1) certain enhancements were insufficiently alleged; (2) the trial court did not sufficiently explain its reasons for one of its sentencing decisions; and (3) the court did not properly determine whether he was eligible for probation.
A. Sections 186.11 and 1203 .045
Under section 186.11, a defendant who takes more than $500,000 in a fraud-related pattern of felony conduct is subject to an additional prison term and other penalties. (§ 186.11, subd. (a) [aggravated white collar crime enhancement].) "The additional prison term and penalties . . . shall not be imposed unless the facts set forth in subdivision (a) [of section 186.11] are charged in the accusatory pleading . . . ." (§ 186.11, subd. (b)(1).) Under section 1203.045, subdivision (a), a defendant may be ineligible for probation if he is convicted of a theft of an amount exceeding $100,000. "The fact that the theft was of an amount exceeding one hundred thousand dollars ($100,000) shall be alleged in the accusatory pleading . . . ." (§ 1203.045, subd. (b).) A defendant has a "due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 747.)
Dunham contends the prosecution did not adequately plead the aggravated white collar crime enhancement and probation-exclusion provision. (See People v. Nilsson (2016) 242 Cal.App.4th 1, 16 [trial court imposed enhancement based on its own finding that grand theft count was related to bribery count, a relationship neither pleaded in the information nor found by the jury].) The parties apparently agree that the pleadings were sufficient through the fourth amended information, but then the statutory provisions became listed only in the "charge summary" of the fifth and sixth amended information. The People submit that certain text was inadvertently dropped due to a clerical error, which is fairly supported by the record. Dunham's counsel did not object to the sixth amended information or contend it was deficient in any manner.
We conclude the People complied with the pleading requirements of sections 186.11 and 1203.045. In the sixth amended information, under the grand theft, elder theft, and securities fraud counts, the People alleged (1) the transaction date; (2) the victim's name; and (3) the fact that a victim's loss exceeded a certain amount, such as $50,000 or $150,000. Thus, the underlying facts supporting the taking of more than $500,000 in fraud-related counts and the theft of an amount exceeding $100,000 were alleged. The specific statutory provisions under count 20 in the "charge summary" put Dunham on notice that the People sought to establish the aggravated white collar crime enhancement and the probation-exclusion provision based on counts 1 through 20. The statutes do not strictly require the Penal Code section be placed in the same sentence or under the same heading as the underlying facts. (See People v. Riva (2003) 112 Cal.App.4th 981, 1001 [analogous enhancement statute "only requires the facts necessary to sustain the enhancement be alleged in the information; it does not say where in the information those facts must be alleged or that they must be alleged in connection with a particular count in order to apply to that count"].)
Moreover, we are satisfied based on our review of the record that Dunham had adequate notice of the People's intention to seek the enhancements for counts 1 through 20 and considered those counts as related felonies involving fraud and embezzlement. The original complaint alleged, "as to all counts," that Dunham committed a theft exceeding the value of $100,000 within the meaning of section 1203.045, subdivision (a), and that the aggravated white collar crime enhancement applied because "[he] committed two or more related felonies, a material element of which is fraud and embezzlement . . . [and] involved the taking of more than five hundred thousand dollars . . . ." This language was carried through, more or less, to the fourth amended information, on which Dunham was arraigned. Although the wording was inadvertently dropped from the sixth amended information, the underlying factual allegations supporting the white collar crime enhancement and probation-exclusion provision, coupled with the statutory provisions in the charge summary, remained. Finally, instruction No.'s 42 and 43 instructed the jury to determine whether the People had proven the aggravated white collar crime enhancement and probation-exclusion provision based on counts 1 through 20. There was no deprivation of due process.
B. Selection of Upper Term for Section 186 .11 Enhancement
Dunham contends the court erred in failing to state its reasons for sentencing him to the upper term on the aggravated while collar crime enhancement. (§ 186.11, subd. (a)(2).) At the sentencing hearing, the People argued for a 25-year prison term, the probation department recommended approximately 17 years, and defense counsel argued for "supervised probation." The court discussed its reasons for finding that Dunham was ineligible for probation and its belief that a 12-year prison sentence would be appropriate, including the victims' large monetary losses and Dunham's lack of insight regarding the wrongfulness of his actions, countered by his age and lack of criminal history. The court then selected the low term for certain counts of securities fraud and the "full" term of five years on the aggravated white collar crime enhancement to arrive at a total of 12 years. Dunham's counsel did not object to the court's sentence or request any further explanation of the court's reasoning.
The claim is forfeited. "A defendant, or his or her counsel, must object at the time of sentencing if the trial court does not state any reasons or a sufficient number of reasons for a sentencing choice or double-counts a particular sentencing factor, and, if there is no objection, any error is deemed waived and cannot be challenged for the first time on appeal." (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.) In any event, the court sufficiently stated its reasons. The court could have selected the upper term based on only one of several aggravating circumstances the jury implicitly found to be true, including the fact that the crimes involved particularly vulnerable victims, the sophisticated nature of the crimes, Dunham's taking of a large amount of money, or his taking advantage of a position of trust. (Ibid. ["One aggravating factor is sufficient to support the imposition of an upper term."]; Cal. Rules of Court, rule 4.421(a).) Dunham's claim lacks merit.
C. Probation Ineligibility
Under section 1203.045, Dunham was presumptively ineligible for probation, unless the court determined his case was an "unusual case[] where the interests of justice would best be served" by granting probation. (§ 1203.045, subd. (a).) In determining whether a case is "unusual," a court should apply the criteria in rule 4.413(c) of the California Rules of Court. If the court believes the case is unusual, it should apply rule 4.414 of the California Rules of Court in deciding whether to grant probation.
Dunham contends the court did not properly analyze whether his case was "unusual" before denying probation. He has not established an error in the court's analysis. The parties extensively discussed the issue of probation at the sentencing hearing, and the court clearly considered whether Dunham's age, lack of prior criminal record, and purported mental health condition made the case an "unusual" one. The court decided it was not unusual and denied probation, primarily due to the callousness with which Dunham committed the crimes and severity of harm inflicted on elderly victims.
Dunham also argues the court abused its discretion in failing to consider section 1170.9, relating to members of the military who committed their offenses as a result of certain traumatic incidents stemming from their military service. The court did not err because Dunham was not "otherwise eligible for probation" for the court to be required to consider his alleged posttraumatic stress disorder. (§ 1170.9, subd. (b)(1), (2); People v. Ferguson (2011) 194 Cal.App.4th 1070, 1093 ["Alternative sentencing under section 1170.9 is not triggered unless the court actually decides to grant probation."].) The court did not abuse its discretion.
Dunham asserts the court erred in instructing the jury on loss enhancement allegations for individual counts, but because those allegations were stricken for sentencing purposes, this court need not address the issue unless we remand those counts for resentencing. We do not remand any counts for resentencing. Regardless, we conclude the court did not err in instructing the jury. The court followed CALCRIM No. 3220, which instructs on the "amount of loss" under section 12022.6. The victims' losses clearly exceeded the enhancement thresholds.
VII. Ineffective Counsel
Dunham argues that if we conclude that any of his claims were forfeited, his trial counsel was ineffective for failing to sufficiently preserve the issue. His argument lacks merit. As we have discussed, even if the issues were properly preserved, there was no reasonable probability that Dunham would have obtained a more favorable ruling. (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).)
We also reject Dunham's assertion that his counsel was ineffective for failing to object to Investigator Brown's "chart" concerning the statute of limitations. In evaluating a claim of ineffective counsel, we must "indulge a strong presumption" that defense counsel's conduct constituted sound trial strategy. (Strickland, supra, 466 U.S. at p. 689.) Here, defense counsel may have reasonably chosen a strategy of focusing on the lack of any crimes to discover rather than appearing to blame the victims for failing to discover some fact. Indeed, counsel's failure to assert certain objections with regard to the statute of limitations proceedings in general was consistent with a strategy that there was no crime, or underlying facts suggestive of a crime, for any investor to discover. In addition, the investigator's chart was based on the evidence and merely showed the amount of time between certain events and the dates of prosecution. On this record, Dunham has not established a claim for ineffective assistance of counsel.
DISPOSITION
The convictions for grand theft involving elder adults (counts 1, 4, 6, 9, 12 & 18) and attendant true findings on loss enhancements are reversed. (See pt. I.B. & fn. 5, ante.) In all other respects, the judgment is affirmed.
NARES, J. I CONCUR: BENKE, Acting P. J. Aaron, J., Dissenting.
The verdict forms asked the jury whether either the victims or law enforcement "had" or "had no" actual or constructive knowledge of the offenses within four years of the date the prosecution commenced. Unfortunately, neither answer would resolve the issue that the question was intended to address, i.e., whether the prosecution was timely under the statute of limitations. As a result, even after the jury changed its response from "had" to "had no," there is no valid jury verdict as to whether the prosecution was timely.
It is possible that in its original verdicts the jury intended to find that the victims knew or should have known that a crime had been committed prior to four years before the prosecution began; there was clearly evidence presented at trial that would support such a finding. Rather than being re-instructed on the law pertaining to the statute of limitations, the jury was essentially told that if it wanted its guilty verdicts to stand, it would have to change its responses to that question on each of the verdict forms. However, because the phrasing in the verdict forms was defective, even after the jury changed its responses from "had" to "had no," there are still no clear verdicts on the issue of the timeliness of the prosecution. For this reason, I would reverse and remand for a new trial.
During closing argument, the prosecutor explained that the People have the burden of proving that prosecution of the case was timely, correctly stating that, "[a] defendant may not be convicted of counts 1 through 20 unless the prosecution began within four years of the date the crimes were discovered or should have been discovered. [¶] A crime should have been discovered when the victim was aware of facts that would have alerted a reasonably diligent person in the same circumstances to the fact that a crime may have been committed" (italics added), i.e., when the victim had actual or constructive knowledge that a crime had been committed.
The verdict forms required two responses from the jury with respect to each count. The verdict forms first asked the jury to find whether Dunham was "guilty" or "not guilty." In addition, the verdict forms required the jury to write in "had" or "had no" to complete the sentence, "And we further find that the above offense victim of said offense (sic) or a law enforcement agency chargeable with the investigation and prosecution of said offense [had] [had no] actual or constructive knowledge of said offense within 4 years of the date the prosecution began . . ." (italics added) as to each offense charged.
The jury returned verdicts finding Dunham "guilty" on counts 1-20 and wrote in the word "had" to complete the special findings. Immediately after the verdicts were read, the prosecutor requested a sidebar conference. During the discussion at sidebar, the prosecutor expressed concern, stating that he interpreted the verdicts as having found Dunham "guilty of everything, but the prosecution is outside the statute of limitations because these people had knowledge of it." The prosecutor further stated that he did not believe that this is what the jury intended, although he provided no basis for his belief. After making these comments, the prosecutor stated, "The court needs to inquire if they intended to find that the prosecution for all these crimes was outside of the statute of limitations or whether it was within the statute of limitations. If the victims had knowledge, then everything is outside the statute of limitations . . . ." (Italics added.)
As noted, the prosecutor had explained to the jury in closing argument that, for purposes of determining whether the prosecution was timely, a crime should have been discovered when the victim was aware of facts that would have alerted a reasonably diligent person in the same circumstances to the fact that a crime may have been committed—i.e., when the victim "had" actual or constructive knowledge that a crime had been committed. Thus, in the prosecutor's understanding, the jury's writing the word "had" on the verdict forms apparently meant that the jury found the prosecution untimely.
However, the verdict forms asked whether the victims had or did not have actual or constructive knowledge that a crime had been committed within four years of the date the prosecution began. As phrased, the question on the verdict forms was irrelevant to a determination of whether the prosecution was timely, and thus fails to resolve the issue.
The verdict forms were clearly defective, as the majority appears to concede. As the majority observes, if the parties were going to ask the jury to make a special finding on the issue of the timeliness of the prosecution, the verdict form should have asked whether the victims or law enforcement "had actual or constructive knowledge of the offenses 'more than' four years before the date the prosecutions began," not "within 4 years" of the date the prosecution commenced. (Maj. opn., at p. 33, fn. 6, italics added.)
After discussing the matter at sidebar, the decision was made to try to get the jury to clarify its verdict. The trial court informed the jury that the court had a question for the jury. The court then stated, "I note for the record that there is out of the 20 counts, there is a statute of limitations issue, and the way the form reads, it's unclear to the court if the jury was finding that the prosecution was timely, meaning there was no actual knowledge prior to the filing or the discovery, or whether it was untimely, meaning that it was outside the statute of limitations, so what I'm going to do is send the jury back to the deliberation room to clarify that on the verdict form." After addressing the jury, the court inquired of the prosecutor whether the court's remarks to the jury were "satisfactory." The prosecutor replied, "I think the jury needs to know that they cannot find the defendant guilty of any charge if . . . ," at which point the court added, "If it's outside the statute of limitations." The prosecutor then stated, "If the victims had knowledge. The only way they can find the defendant guilty is if the victims had no actual or constructive knowledge."
The reporter's transcript does not indicate that the prosecutor's comments were made at sidebar. In fact, the transcript indicates that the sidebar conference had concluded prior to the court addressing the jury and does not indicate that subsequent discussions were at sidebar. If the prosecutor's comments were in fact in the presence of the jury, that would clearly be improper and arguably coercive.
In addition, the prosecutor's statement is legally incorrect. The jury could have found the defendant guilty, and the prosecutions timely, not only if the victims had no actual or constructive knowledge of the crimes up to the commencement of the prosecution, but if they had actual or constructive knowledge within the four-year period before the commencement of the prosecution, but not prior to the four-year period.
Before sending the jury to recommence deliberations, at the prosecutor's request, the trial court inquired of the jury foreperson whether the foreperson understood the court's comments. The foreperson responded, "Further explanation would be beneficial for all jurors." The court addressed the jurors again, stating, "The way I read this is that you found him guilty on all 21 [sic] counts, but you found it was outside the statute of limitations. [¶] If that's your verdict, that's your verdict, or if it needs to be clarified." After deliberating further, the jury inserted the word "no" into each verdict form, so that each of the verdict forms now stated that the victims or law enforcement "had no actual or constructive knowledge of said offense within 4 years of the date the prosecution began." (Italics added.) The court proceeded to poll the jury and recorded guilty verdicts on all counts.
The manner in which the court handled the confusion surrounding the verdict forms exacerbated the problem caused by the fact that the wording of the forms was defective. If the court and counsel believed that the jury's verdicts as to the timeliness of the prosecution required clarification, the proper way to proceed would have been to re-instruct the jury regarding the applicable law, and to provide the jury with verdict forms that posed a meaningful question. However, instead of proceeding in this manner, the court (and the prosecutor, if his comments were audible to members of the jury) in effect informed the jurors that they could not find Dunham guilty unless they changed their answers to the question whether the victims or law enforcement "had" or "had no" knowledge of the crimes "within" four years of the date the prosecution began, from "had" to "had no." Having found Dunham guilty on all counts, the jury dutifully changed its responses on all of the verdict forms from "had" to "had no."
After the jury returned its revised verdicts, the court polled the jury and then addressed the jury, stating, "I'm going to ask a further clarification since we had that confusion. As to the statute of limitations, was it your finding that the prosecution was filed -- let me restate that -- that the action was filed within the statute of limitations, and that they had no prior knowledge prior to that . . . ." The court then polled the jury to obtain a response to the question it had, at that moment, formulated?a question that was not on the verdict forms and as to which the jury presumably had not specifically deliberated.
Putting aside whether it was appropriate to inquire of the jury after it returned its original verdicts, whether the comments that the court (and possibly the prosecutor) made to the jury were improperly coercive, whether the court erred in failing to re-instruct the jury on the law and in failing to provide the jury with a verdict form that was not defective, and whether the court improperly polled the jurors on a question that they had not been asked in the verdict forms, even after the jury changed its responses from "had" to "had no," there remains a fundamental problem with the verdicts. Specifically, contrary to the majority's assertion that "the jury unmistakably found the prosecutions were timely" (maj. opn., at p. 33), there is still no clear verdict as to whether the prosecutions were in fact timely. The revised verdicts state that the victims had no actual or constructive knowledge of the crimes within 4 years of the date the prosecution commenced. However, this is clearly untrue, since all of the victims obviously knew about the actions that form the basis of the charges sometime within four years of the date the prosecution began. That is undisputed. The verdict forms are defective such that neither response requested of the jury, i.e., "had" or "had no," answered the relevant question?whether the victims (or law enforcement) had or did not have actual or constructive knowledge of the alleged crimes prior to four years from the date the prosecution commenced.
The defect in the verdict forms cannot be deemed harmless because there is abundant evidence in the record from which the jury could have found that the victims in fact had actual or constructive knowledge that a crime had been committed prior to four years before the prosecution was initiated. Thus, it is possible that in its original verdicts, the jury intended to find that the victims knew or should have known that a crime had been committed prior to four years before the date the prosecution commenced. It is further possible that after the jury returned its original verdicts and the court and prosecutor questioned those verdicts, and essentially told the jury that they could not find the defendant guilty unless they changed their responses to the question regarding the victims' knowledge, the jury changed its verdicts so that the guilty verdicts would stand.
The majority concludes that any error is harmless because there is sufficient evidence to support findings that the victims did not have actual or constructive knowledge that a crime had been committed prior to four years before the prosecution commenced. However, the jury never made those findings because, as discussed, they were not asked that question. The issue here is not whether there is sufficient evidence to support such findings but rather, that, based on the record, we cannot conclude that such findings were ever made. There was also sufficient evidence from which the jury could have concluded that the victims did have actual or constructive knowledge that a crime had been committed prior to four years before the prosecution began, and thus, that the prosecution was untimely, and they may in fact have intended to make such findings in their original verdicts.
The prosecutor clearly was under the impression that the jury's initial verdicts indicated that they were finding the defendant guilty but also that the prosecution was untimely. It is for this reason that the prosecutor requested that the court inquire of the jury regarding what it intended to find as to the statute of limitations.
Regardless, the fact remains that there is no valid jury verdict as to the timeliness of the prosecution since neither the "had" nor the "had no" verdicts constitute a finding regarding whether the victims or law enforcement had or had no actual or constructive knowledge of the crimes prior to four years from when the prosecution began.
The majority appears to suggest that this question and the jury's verdicts on the question may be ignored, stating, "Had the jury written nothing on the special finding portion of the verdict form, its general guilty verdict was a sufficient finding that the prosecutions began within four years of the date the crimes were discovered or should have been discovered. No special verdict or finding was required." (Maj. opn., at p. 34.) I disagree. While a general guilty verdict is normally a sufficient finding that a prosecution was timely, here, the People chose to submit the question of the timeliness of the prosecution to the jury as a separate inquiry. Under these circumstances, we cannot pretend that the question was never asked and simply accept the guilty verdicts, ignoring the uncertainty surrounding the jury's verdicts on the question of the timeliness of the prosecution of each count and the fact that we have no valid verdict on this question.
Because there is no valid determination of the timeliness of the prosecutions in this case, in my view, the case must be remanded for a new trial.
AARON, J.