Opinion
H040606
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. VINCENT ROBERT EPPSTEIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1082010)
Defendant Vincent Robert Eppstein was convicted by jury trial of one count of theft from a dependent adult (Pen. Code, § 368, subd. (d)) and three counts of grand theft (§§ 484, 487, subd. (a)). The jury also found true two excessive taking allegations (§§ 186.11, subd. (a)(1) & (a)(2) [loss exceeds $500,000], 12022.6, subd. (a)(2) [loss exceeds $200,000]). The court committed defendant to state prison for a term of six years.
Subsequent statutory references are to the Penal Code unless otherwise specified.
The court imposed the three-year middle term for the theft from a dependent adult count, and it imposed and stayed under section 654 two-year terms for each of the grand theft counts. The court also imposed a consecutive three-year term for the section 186.11 enhancement and imposed and struck the punishment for the section 12022.6 enhancement. Defendant was ordered to pay restitution of over $1 million.
On appeal, he contends that (1) the trial court prejudicially erred in admitting a group of spreadsheets under Evidence Code section 1521 because the spreadsheets contained inadmissible hearsay, (2) the trial court prejudicially erred in permitting a prosecution witness to testify about her preparation of the "allocations" on the spreadsheets because her testimony was based on inadmissible hearsay, (3) the court prejudicially erred in restricting cross-examination of two prosecution witnesses, (4) the three grand theft convictions constituted just one offense and must be aggregated into a single conviction, and (5) defendant's trial counsel was prejudicially deficient in failing to challenge one of the grand theft counts on statute of limitations grounds. We reverse the judgment because the trial court prejudicially erred in admitting hearsay evidence. We also conclude that defendant's three grand theft counts must be aggregated into a single grand theft count.
I. Facts
Kim Brockington and defendant became friends when they were teenagers. Defendant was a few years older than Brockington. Brockington, who was an only child, looked upon defendant as a "big brother" and "put complete trust" in him. Her father treated defendant "as a very close member of our family."
Brockington started using drugs in high school. In 2001, when Brockington was about 30 years old, she began using methamphetamine. She continued to use methamphetamine regularly until 2006. Between 2001 and 2006, Brockington was arrested four times for possession of methamphetamine.
The Brockington family lived in a house on Arundel Court. Brockington's grandmother originally lived in a house on Quinto Way; she moved into the Arundel house sometime between 1998 and 2002. The Quinto house was then rented out. Brockington's grandmother also owned a house on Greenleaf that she rented out. In 2001 or 2002, Brockington purchased her grandmother's house on Quinto and began living there.
In March 2003, Brockington's grandmother died, and Brockington became responsible for her grandmother's assets as the trustee of her trust. In September 2003, Brockington obtained a "hard money loan" of $200,000 on the Greenleaf house to pay inheritance taxes on her grandmother's estate. After her grandmother's death, Brockington's drug use "increased dramatically." Brockington began spending about $100 to $120 a week on methamphetamine. As her drug use increased, her life "started to spiral and get out of control." She stopped working and was not able to pay her bills on time.
At some point, Brockington moved back into the Arundel home. There was a mortgage on the Arundel home, which Brockington's father was paying until 2004. Brockington's parents wanted to get a loan to remodel the Arundel home. At defendant's suggestion, title to the Arundel home was transferred from Brockington's mother to Brockington on the premise that her credit was better than her mother's credit. Thus, by 2004, Brockington was managing all of her family's finances and controlled all three properties. The Quinto and Greenleaf houses had no mortgages.
Due to her drug addiction, Brockington was not able to "deal with day-to-day expenses" so she asked defendant to help her. In February 2004, defendant and a mutual friend, John Hofer, arranged for two additional hard money loans of $55,000 and $39,000 secured by the Greenleaf house. Brockington agreed to use the $39,000 loan to pay defendant and Hofer for their assistance in getting the loans and to compensate defendant for the help that he had agreed to provide to Brockington in managing her finances in the future. Defendant told a good friend of his that he was managing Brockington's finances, and she was giving him "a few bucks for to help her out." Brockington told her attorney that defendant was her financial advisor and that he controlled her money. Defendant and Hofer insisted that Brockington immediately list the Greenleaf property for sale with "a realtor of their choosing" and sell it within six months.
In April 2004, Brockington and defendant opened a joint account at Bank of the West (the joint account). Brockington had wanted this account to require dual signatures on the checks, but the bank "would not set it up that way." The purpose of this account was to provide funds for "day-to-day expenses" for Brockington and her mother while Brockington was being treated for her substance abuse. She entrusted defendant, whom she considered her "best friend," with control of all of her finances. However, Brockington never agreed to allow defendant to use money from the joint account for his own purposes. Brockington had a debit card associated with the joint account, but she had no credit card. Defendant gave Brockington permission to use one of his credit cards to pay for some of her expenses, and he paid for her charges on this credit card. He also sometimes charged things for her on one of his 16 other credit cards.
Defendant also used this credit card. Over $125,000 was charged on this credit card account between June 2004 and July 2007.
Defendant had several bank accounts. He had a Bank of the West personal account (the personal account), another Bank of the West account for his business, A Lotta Bounce, (the business account), and a bank account at Alliance Credit Union (the Alliance account).
The Greenleaf house sold in May 2004 for $812,000. When the escrow on Greenleaf closed, defendant was paid $17,080 out of the escrow for his assistance. After all of the hard money loans and other costs were paid off, Brockington cleared $418,527.35 from the sale of the Greenleaf house, and this money went into a Merrill Lynch account (the Merrill Lynch account) that Brockington opened in May 2004 as a joint account with her mother. Brockington allowed defendant to have online access to the Merrill Lynch account so that he could transfer money from it to the joint account to pay her expenses. Defendant was the only person receiving monthly statements for the joint account.
Brockington had received a $1 million cash offer for the house, but the realtor selected by defendant and Hofer rejected that offer.
In June 2004, Brockington made what she thought was a $47,000 investment in defendant's business using money from the Merrill Lynch account. He told her that her investment would make her his "partner" in the business. At about the same time, defendant transferred $27,000 from his business account into the joint account. After this, he transferred, in three separate transactions, a total of $17,800 from the joint account into his business account. He also used $7,000 from the joint account to pay for a Rolex for himself and a diamond for his wife.
In June 2004, defendant told Brockington that she could "make ten percent interest" by loaning a friend of his money to purchase a car. Based on this representation, Brockington authorized defendant to use $34,000 of her money to purchase a Chevy Tahoe. She was supposed to receive the monthly payments by the payments being deposited in the joint account. Defendant told his friend that he would purchase a Chevy Tahoe for cash and sell it to her. She agreed to pay him $750 per month for seven years. Defendant used $34,872 from the joint account to buy the vehicle. His friend began paying $750 a month in August 2004 by depositing cash into the joint account.
The monthly deposits into the joint account continued until July 2007. The friend continued paying after that, but the payments were deposited into one of defendant's personal accounts. The payments deposited into defendant's personal accounts amounted to around $35,000. In April 2011, three months before the end of the seven years, she stopped making payments because she was having financial difficulties, and defendant threatened to sue her.
By January 2005, defendant had transferred $322,519.83 from the Merrill Lynch account into the joint account. In January 2005, Brockington entered a residential treatment program. While she was in the program in January and February 2005, she had no access to her bank accounts and was not permitted to leave the facility. In February 2005, while Brockington was in this residential treatment program, defendant told Brockington that she was running out of money. He told her that she needed to refinance the Arundel house, which at that point had mortgage payments of $1,100 a month. In April 2005, she agreed to a refinancing that brought in proceeds of $77,183.58, which were deposited into the joint account. Defendant transferred $59,000 of that amount into his personal account without Brockington's authorization on the same day that the funds were deposited into the joint account. He also transferred additional amounts from the joint account to his personal and business accounts.
In June and July 2004, over $140,000 was transferred from the Merrill Lynch account into the joint account. In August and September, over $90,000 was transferred. In October, it was over $55,000. The transfers continued in this same fashion.
Brockington relapsed in April 2005. She went to live in a sober living environment in June 2005, where she remained until late December 2005. In May or June 2005, defendant again told her "we need more money" and suggested a refinancing of the Quinto house. She agreed to a refinancing of the Quinto house, and, in June 2005, it produced proceeds of $141,296.21, which were deposited into the joint account. The next day, defendant electronically transferred $8,500 from the joint account into his personal account, obtained a cashier's check for $72,300 drawn on the joint account and deposited it into his Alliance account, and electronically transferred $150 from the joint account to his business account.
In September 2005, Brockington agreed to a second refinancing of the Quinto house, and the proceeds of $82,461.15 were deposited in the joint account. Defendant transferred about $48,000 of that amount into his personal and business accounts on the same day that the funds were deposited in the joint account.
At the end of 2005, Brockington relapsed again, and in January 2006 she entered another residential treatment program. In January 2006, she agreed to a second refinancing of the Arundel house, and the proceeds of $196,487.65 were deposited in the joint account. On the same day as those funds were deposited, $10,000 was electronically transferred to defendant's personal account, and he obtained a $120,000 cashier's check from the joint account and deposited it into his Alliance account. The next day, he electronically transferred $874.44 from the joint account into his business account. He told Brockington that he was transferring the $120,000 to "set aside 18 months house payments, taxes and insurance" for her two homes.
Brockington relapsed in May 2006, and she was arrested. She again entered a residential treatment program in June 2006 and afterwards went into a sober living environment facility. In July 2006, Brockington agreed to a third refinance of the Quinto house, and the proceeds of $71,931.42 were deposited into the joint account. Over the next two days, nearly $70,000 was extracted from the joint account using multiple electronic transfers and a counter check and put into defendant's personal accounts. Brockington lived in a sober living environment facility from July 2006 through January 2007.
In November 2006, the Arundel house was refinanced a third time, and the proceeds of $111,033.90 were deposited into the joint account. Within a couple of days, defendant extracted over $45,000 from the joint account by means of cashier's checks. Within a couple of weeks, defendant had extracted in excess of $44,000 more from the joint account and placed it in his personal and business accounts.
Brockington completed her sober living environment program in early 2007. She moved back in with her parents at the Arundel house, and she rented out the Quinto house. She remained sober thereafter. Throughout the period from 2004 to 2007, Brockington never suspected that defendant was taking her money. She assumed that she was responsible for spending it all. Brockington had authorized defendant to use her funds to pay for her and her family's expenses, and these expenses were considerable. When the Arundel house was remodeled in 2004, defendant used Brockington's funds to pay for the construction. The construction cost about $40,000. When Brockington's father needed cash, he would ask Brockington, and she would obtain it from defendant. Occasionally, defendant would buy a pack of cigarettes for Brockington's mother. In 2006, Brockington used her funds to buy her father a used car for $6,000 or $7,500. Brockington's father also received checks from defendant for about $23,000 between 2004 and 2007, which were usually to reimburse him for household expenses.
These cash advances totaled no more than $2,000 over the entire 2004 to 2007 period.
In 2006, Brockington bought a used motorcycle from defendant for $31,000.
In March 2007, Brockington was notified by the bank that the mortgage payments were not being made. She asked defendant to explain, and he "got mad at me." She continued to seek an explanation from him, but he "got madder until he just would not even talk to me at all." He told her "to go to hell." Brockington began looking at her finances and "started to ask questions then about what happened to the money that should have been" in the joint account. She started to suspect that a lot of money was missing from the joint account. After she obtained some statements from the bank, she noticed that over $100,000 had disappeared from the joint account during a single two-month period.
By May 2007, she had begun to suspect that defendant had taken her money, but she did not know how much money was missing. In July 2007, defendant took the small amount of remaining money out of the joint account. Eventually, Brockington consulted an attorney, who told her she should report the matter to the police. Brockington reported the matter to the police in October 2007. In November 2008, Brockington filed a civil lawsuit against defendant alleging that he had stolen money from her. In March 2009, defendant filed a bankruptcy petition. His petition listed as a disputed debt to Brockington damages alleged to be $800,000.
It was not until June 2009 that a police detective actually met with Brockington to investigate her October 2007 report of defendant's thefts. The police obtained the bank records, which demonstrated that defendant had taken money from the joint account and put it into his personal and business accounts. They determined that over $1 million had been deposited in the joint account from the sale of the Greenleaf house and the multiple refinances of the Arundel and Quinto houses. Each time there was a large deposit into the joint account, within a day there would be a large withdrawal of money from that account, with the money going into one of defendant's personal or business accounts. A total of $494,422.68 was transferred from the joint account to defendant's personal and business accounts. Defendant used not only the joint account but also his personal and business accounts to pay Brockington's expenses.
About $235,000 went into defendant's personal Bank of the West account. About $245,000 went into defendant's Alliance account. About $14,000 went into defendant's business account. About $77,000 was transferred back into the joint account from defendant's personal and business accounts. $47,000 of that amount was funds that had been transferred from the Merrill Lynch account to defendant's business account.
Throughout the period when he had access to Brockington's funds, defendant spent money lavishly. In June 2004, defendant purchased a $6,300 Rolex and an $8,650 diamond engagement ring, which he gave to his wife. Defendant paid for this expense and some of his other expenses with Brockington's funds from the joint account. Defendant spent money during this period on auto detailing, motorcycles, service and improvements to motorcycles, motorcycle accessories, Segways, a go-kart, cash advances, a new bed for defendant and his wife, defendant's property taxes, repairs to defendant's Lexus, multiple trips to Florida, his father's burial, a trip to Las Vegas, defendant's honeymoon on Maui, a trip to Las Vegas with his wife, and attorney's fees for defendant's divorce attorney. Defendant and his wife purchased a home that cost almost $600,000 in the summer of 2005. Their monthly payments for the mortgage, taxes, and insurance were $3,600.
On the loan application, defendant claimed that his and his wife's income was $16,000 a month.
Despite his lavish spending, his personal sources of funds were quite limited. At the beginning of this period, defendant had credit card debt of about $42,000. At the end of the period, he had about $97,000 in credit card debt. Defendant's wife gave him about $1,000 a month from her earnings to cover her share of expenses. She made about $14 an hour. Over the period from 2004 to 2007, defendant's own sources of funds amounted to no more than $504,083.89.
Robert Allen Gorini, one of the prosecution's forensic accountants, examined defendant's tax returns from 2004 through 2007 to see if defendant had sufficient income to support his level of spending. In 2004, the business expenditures of defendant and his wife exceeded their total reported income by at least $20,000. Those expenditures did not include their living expenses for food, clothing, entertainment, and other things. In 2005, defendant's business expenses exceeded his income by almost $4,000. In 2006, his income exceeded his business expenses by just $10,810. In 2007, his income exceeded his business expenses by $27,107.
Defendant paid no state or federal taxes in 2002 through 2007. For the entire period of 2004 through 2007, his total income was $13,941 (less than $300 per month). Gorini's figures did not take into account any gifts, worker's compensation payments, personal loans, or personal injury settlements that defendant might have received during this period. At some point during that period, defendant inherited $50,000 and a car. He was receiving social security payments of $1,137.50 per month in 2006 and 2007, and these were accounted for in Gorini's assessment of defendant's income.
The police interviewed defendant in December 2009, and he adamantly denied that he had ever agreed to help Brockington with her finances or to pay her bills while she was undergoing treatment. He also denied that he had ever used the joint account or any of Brockington's other money to pay any of his own personal expenses or to give to friends. Defendant told the police that he and his wife had a combined income of $38,000 a year and were able to pay a $2,200 per month mortgage payment. He denied that he had ever purchased a Rolex or a Harley-Davidson or any other motorcycle. Defendant also denied that he had obtained cashier's checks from the joint account and deposited the money into his own personal account. Defendant did say that he had paid some of Brockington's bills at her request. He admitted that he had obtained a $34,000 cashier's check on the joint account to purchase the Chevy Tahoe, and he claimed that Brockington had asked him to put the title in his name. He also admitted that he then had title put in his friend's name, named his company as the lienholder, and had the friend agree to pay him $750 per month for seven years for the vehicle. Defendant denied that Brockington had ever invested any money in his business.
The defense case at trial was composed of character witnesses who testified to defendant's honesty and other witnesses who testified that Brockington was a profligate spender. Defendant's trial counsel's closing argument was predominantly an attack on Brockington's credibility.
II. Discussion
A. Spreadsheets
Defendant contends that the trial court prejudicially erred in allowing the prosecution to introduce into evidence spreadsheets that contained "attribution columns" that were based on non-documentary evidence. The "attribution columns" attributed each charge on a credit card, withdrawal from a bank account, or payment from a bank account to either Brockington, defendant, or "unknown." Defendant claims that the information in the "attribution columns" was hearsay and was not admissible under Evidence Code section 1521.
These exhibits contained pink highlights for periods when Brockington was in jail, in a sober living environment, or in a residential treatment center. Defendant complains on appeal about the fact that the spreadsheets "color-coded" the time when Brockington was in custody or in a treatment facility and noted when she had first used the credit card. Since this was not the basis for his objection below, we deem this contention forfeited.
The Attorney General contends that the information in the attribution columns (1) was "properly admitted under Evidence Code section 1521," (2) was "not hearsay" because it was entitled "Alleged Eppstein Expenses," and (3) was properly admitted because the jury was instructed that the attribution columns were admitted for a limited purpose. In her view, the spreadsheet "attribution columns" "were simply admitted to save the prosecution from presenting each expense line by line, and drawing out appellant's trial."
1. Background
Vera Delene Waltrip was a paralegal employed by the prosecutor's office. She reviewed more than 10,000 pages of documents, which included bank and credit card statements and checks, and prepared two spreadsheets, exhibits 3 and 4. Exhibit 3 listed "verbatim" every charge on defendant's many credit cards throughout the 2004 to 2007 period, and exhibit 4 itemized "verbatim" every action taken in connection with the joint account, the Merrill Lynch account, and defendant's personal and business accounts.
Exhibits 3 and 4 each included columns that were headed "by or for Brockington," "alleged expenses for or by Eppstein [defendant]," and "unknown." These columns attributed to Brockington, defendant, or "unknown" each of the expenditures listed on the spreadsheets. Waltrip had made attribution determinations based on documents, multiple interviews with Brockington (most of which were recorded), interviews with Brockington's father and defendant's ex-wife, and reports from other investigators who had interviewed people and conducted research. Waltrip testified that during her interviews of Brockington, Brockington reviewed the expenditures reflected on bank and credit card statements and identified those that were hers and those that were defendant's. The expenditures that she was not sure about were placed in the "unknown" category.
Exhibit 3 attributed to defendant $23,081.21 for his own charges on the credit card that he had given to Brockington, to Brockington $90,925.71, and to "unknown" $8,466.46 for charges on that credit card. It also attributed to defendant $241,149.85 for his own expenses on his other credit cards, to Brockington $56,738.61, and to "unknown" $41,699.69 for expenses on his other credit cards.
Exhibit 4 attributed to defendant $73,361.75 in expenditures from the joint account. It also contained attributions for each expense from defendant's personal and business accounts. Exhibit 4 stated that defendant had paid from his Alliance checking account $109,360.12 for Brockington's expenses and $141,225.95 for his own expenses and that he had paid another $53,677.39 for his own expenses from his Alliance savings account. It attributed $4,000.63 in expenses from the Alliance checking account and $9,500 from the Alliance savings account to "unknown." Exhibit 4 attributed to defendant $38,214.11 for his own expenses from his business account, $3,568.70 for Brockington's expenses, and $1,279.38 for "unknown" expenses from that account.
Several other exhibits were prepared by the prosecution's forensic accountants based on the information in the attribution columns in exhibits 3 and 4. Exhibit 8, for instance, attributed to defendant $73,361.75 in expenditures and $42,346.48 in cash withdrawals from the joint account.
Forensic accountants Gorini and Edward Fischer testified for the prosecution. Gorini had sat in on the recorded interviews with Brockington and her father. Gorini and Fischer had prepared the additional exhibits based on exhibits 3 and 4.
It also stated that $13,754.70 (or possibly $15,500) from the joint account had been used to pay defendant's credit card payments. And it stated that defendant had received $989.98 in "[e]xcess [c]redit [c]ard [p]ymts."
The prosecution sought admission of exhibits 3 and 4 under Evidence Code sections 1521, subdivision (a) and 1523, subdivision (d). The defense contended that these exhibits contained "inadmissible hearsay because they purport to categorize transactions as either 'authorized' or 'unauthorized' . . . ." The defense pointed out that the attributions of the transactions were based on interviews. "None of those interviews would be admissible by themselves, and the mere fact that the prosecution has summarized those interviews and transposed the information obtained from them into a series of spreadsheets cannot make them so."
The defense also objected to testimony by one of the forensic accountants about the source of his information regarding attribution of various expenditures. The court overruled the defense objection to testimony and exhibits prepared by this forensic accountant.
The court " 'ruled that the spreadsheets were admissible under the Secondary Evidence Rule [(Evidence Code section 1521)] and that to exclude them would cause undue consumption of time.' " After the court made that ruling, defendant's trial counsel objected to " 'certain columns of the spreadsheets,' " and the court ordered that the " ' " Notes" ' " be excluded and that "the word ' "Alleged" ' " be " 'inserted to the column attributing expenses to the defendant and [thereby] re-titled, " ' "Alleged Expenses of Eppstein." ' " The court " 'then ruled that [those] columns were admissible under the Secondary Evidence Rule and to avoid an undue consumption of time.' "
The prosecutor and the defense thereafter stipulated that information in the spreadsheets was "a true and accurate reflection of the bank records," and that "the data was entered correctly." Defendant's trial counsel told the court: "And in further discussions with the court, we decided that . . . the way to remedy this, so as not to be prejudicial to Mr. Eppstein, is to change the column that says [Eppstein's] expenses to saying alleged [Eppstein's] expenses. So that the jury understands that this is [Brockington's] characterization. [¶] We still believe it's hearsay, but we don't know a better way to go about it. And I think that does provide a remedy to show that it's [Brockington's] expenses." The court asked counsel to confirm the nature of the stipulation. "So the records in the spreadsheet, there is a stipulation that they will come in as there is no dispute as to the accounts, the purchases, the payments, the amount of the charges, the bate stamps, the bank fees, other than those two columns alleged Eppstein expenses and unknown?" Defendant's trial counsel said "Yes."
Exhibit 3 was admitted into evidence without further objection during Waltrip's testimony. The attribution column in exhibit 3 attributed to defendant $241,149.85 for charges on his credit cards during the relevant period. The attribution column in exhibit 4 attributed to defendant $38,214.11 in expenses paid from the joint account during the relevant period. During Waltrip's testimony about exhibit 3, the court admonished the jury: "[W]hen you see the column of charges that are attributed to Mr. Eppstein, remember that they are alleged. So as you see it, if it says Eppstein charges, you're not to assume that there is other evidence, other than what is being testified to. [¶] And again this witness is testifying as to what she was told and also what she verified through different documents, but the column should say alleged Eppstein expenses." The jury was also read a stipulation: "The spreadsheets prepared by the District Attorney's office were culled from data and the voluminous financial documents . . . . [¶] . . . [S]uch documents cannot be examined in court without great loss of time. [¶] Therefore the parties stipulate that the spreadsheets accurately reflects [sic] transactions being made to include the day, the amount and the payee."
Brockington testified at trial that defendant not only allowed her to use one of his credit cards, he also "would use his other cards to pay" for things for her. She had reviewed every item on the spreadsheets. "[I]f they were places or things that I knew I had never been to or that I knew weren't mine, those were attributed to Mr. Eppstein. [¶] If they were places or things that I knew were mine or my family's, I'd put those in [the] column with mine. [¶] And if they were ones that I wasn't sure like a grocery store or something that I did not remember on certain dates, those would be applied to unknown." Having known defendant for many years, she knew "his habits and his likes and dislikes," which made it easier for her to identify his expenses. She testified that she did not identify any expense as defendant's unless she was absolutely positive that the expense was his. The only items she attributed to defendant were "expenses that were for things that we knew were his." However, with one exception, Brockington did not testify about any of the specific expenses that she had attributed to defendant. The only things that she testified that she knew that he "liked" were "auto detail," "Harley Davidsons," "Rolex watches," and "Sports' memorabilia." The one specific expense that Brockington attributed to defendant was a $7,000 payment to Joe Escobar Diamonds that she testified arose from defendant's purchase of a Rolex watch for himself. Brockington testified that, of the $1.05 million that she had entrusted to defendant and he had spent, she had authorized only $541,000 in expenditures. The authorized expenditures were for her expenses during the three-and-a-half-year period from March 2004 to July 2007.
On cross-examination, she admitted that she had originally claimed that charges for a Metro PCS phone could not be hers but had later told the prosecutor that they might be hers.
However, one of the forensic accountants testified that the amount should be $558,000.
Defendant's ex-wife, Ann McDonald, testified at trial and identified some of the expenses on exhibit 3 that she could attribute to defendant. She had examined exhibit 3 and prepared a list that itemized several trips she and defendant had taken and businesses that they patronized. But for a few specific examples, neither her list nor her testimony specified the amounts of the expenses she attributed to defendant, though some of those amounts could be determined by cross-referencing her list and testimony with exhibit 3. For instance, she testified that she had received a diamond ring from defendant that came from Joe Escobar Diamonds in June 2004, but she did not know how much it had cost. Exhibit 3 showed a $6,138 credit card charge in June 2004 at Joe Escobar Diamonds for a Rolex and a diamond ring. Exhibit 4 showed a $7,000 payment from the joint account to Joe Escobar Diamonds in June 2004.
McDonald testified that she and defendant had gone to Maui for their honeymoon in November 2004. Exhibit 3 showed about $2,150 in charges in Hawaii in November 2004. McDonald testified that she and defendant had visited Florida two times between 2004 and 2006, one trip being in December 2004. She could not recall when the other trip had been. She recalled that they had taken flights, rented a car, and eaten at restaurants, but she did not identify the amount of the expenses associated with those trips. Exhibit 3 showed about $1,050 in charges in Florida during the December 2004 period. They had taken a road trip to Washington in April 2005. Exhibit 3 showed a number of small charges that appeared to be associated with this trip. She and defendant had taken two trips to Southern California, one of which was in June 2006. She testified that, while in Southern California, defendant had spent $1,105 at California Speedway for her to drive a racing car. Exhibit 3 showed the $1,105 charge and about $610 in other charges in Southern California in June 2006. In March 2007, they went to Las Vegas. Exhibit 3 showed about $1,520 in charges associated with this trip.
McDonald testified that defendant had purchased a go-kart for $600, a mattress for $1,000, and dance lessons for $800. She testified that defendant had purchased two motorcycles between 2004 and 2007. McDonald also testified that, at some point between 2004 and 2006, defendant purchased as many as five or six "jumpy houses" for his business. McDonald thought one of them might have cost $2,800. Without dates or payees, it was not realistically possible to link these purchases to transactions shown on exhibits 3 and 4. McDonald identified the restaurants that they frequented, the stores they shopped at, their doctors, and other vendors they used, but she did not specify the times or amounts of any specific charges associated with them.
For example, McDonald testified that she and defendant frequently ate at "Outback," "Fontana, the Elephant Bar, the Fish Market, the Iron Skillet," "the Cinnabar Hills Country Club," "Shadow Brook [sic]," and "La Foret." She also testified that they paid, among many, nail salons, Nextel, Verizon, their chiropractor and dentist, Nordstrom's, a water company, Comcast, Lamps Plus, and their insurer. They shopped at Albertson's, bought a new stove and a trash compactor, furniture, a safe, motorcycle accessories, pet food, Rotten Robbie's gas, cigarettes, and Segways.
The court instructed the jury that the expert witnesses were permitted to consider Brockington's out-of-court statements, but the jury was to consider those statements "only to evaluate the expert's opinion" and could "not consider those statements as proof that the information contained in the statement is true."
The prosecutor argued to the jury: "[Y]ou maybe [sic] wondering, do we have to go through 4,000 line items that are in these 8 by 14's [(the spreadsheets)] that are here?[] Because they're broken down by way of spreadsheet for every credit card purchase, every bank account transfer. What I would suggest to you, and you're free to look at it right down to every page, but might I suggest to you to look at the back page of each account, on the back page of each credit card [spreadsheet] because the summary is down there for you, that tells you how much was used by Mr. Eppstein, and how much was used by Kim, what the unknowns are. You can go through that. [¶] But if you want to go through each and every line item, especially the credit cards and start comparing them with, for instance, the testimony of Ann McDonald or Kim Brockington as to what expenses are his, what restaurants he liked to frequent, the airline tickets. Look through them and you'll see the allocations of these expenses are exactly what the witness testified to, that Kim went to great length, multiple interviews with Delene Waltrip at the office to try to go through each and every line item to see who is responsible for them."
The spreadsheets in the exhibits were extra wide pages with very small print.
Defendant's trial counsel argued to the jury: "When you see spreadsheets . . . , when you see beautifully color coordinated spreadsheets that summarize multiple conversations with Kim, it makes the spreadsheets seem like they're the gospel truth." He emphasized that the validity of the information on the spreadsheet depended on Brockington's credibility. "If Kim Brockington is lying, then how do you know that Vince Eppstein used any of her money or spen[t] any of her money without her consent." "[E]ven if she is not lying, she has a serious memory problem. How can she be relied upon given her memory." Defendant's trial counsel also claimed that Brockington might have "authorized" defendant to spend her money on his own expenses. He argued that "the spreadsheets are useless." "All of these numbers are based on Kim Brockington's categorization of alleged Eppstein expenses versus by or for Kim Brockington's expenses."
The prosecutor responded: "I haven't heard one piece of evidence offered by defendant to say that this expense allocated to Mr. Eppstein, should be moved over here, nothing."
2. Analysis
Defendant contends that the trial court prejudicially erred in overruling his hearsay challenge to the admission of the "attribution columns" in exhibits 3 and 4. The Attorney General contends that the information in the attribution columns was "properly admitted under Evidence Code section 1521."
Evidence Code section 1521 provides: "The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: [¶] (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion. [¶] (2) Admission of the secondary evidence would be unfair." (Evid. Code, § 1521, subd. (a), italics added.)
"Secondary evidence, of course, must comply with the rules governing the admissibility of evidence generally, including relevance (Evid. Code, § 351) and the hearsay rule (id., § 1200 et seq.)." (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1070, fn. 2.) "The secondary evidence rule . . . 'does not excuse the proponent [of the evidence] from complying with other rules of evidence, most notably the hearsay rule.' [Citations.] A writing that passes muster under the secondary evidence rule is not necessarily admissible. The writing 'still may be inadmissible because of other exclusionary rules of evidence, such as hearsay, opinion, privilege, or irrelevancy.' " (Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974, 994-995.)
The attribution columns in exhibits 3 and 4 did not qualify for admission under Evidence Code section 1521 because they were not admitted to prove the "content of a writing" and were not "otherwise admissible." On the contrary, they were admitted to provide a summary of out-of-court hearsay statements by Brockington and McDonald attributing expenses to defendant. " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) Because the attribution columns were admitted to show that defendant was responsible for these expenses, these attributions were admitted for their truth.
The Attorney General contends that the attribution columns were "not hearsay" because they were entitled "Alleged Eppstein Expenses" and the court instructed the jury that the attribution columns "are alleged" and "you're not to assume that there is other evidence, other than what is being testified to." She maintains that defendant's hearsay challenge "is misplaced" because the attribution columns were not offered to prove their truth but instead were "offered by the prosecution simply as a compilation of the expenses paid out of the joint account which were allegedly incurred by appellant."
Neither the titling of the columns nor the court's instruction eliminated the hearsay nature of the content in the attribution columns. First, a document containing inadmissible hearsay is not magically turned into admissible nonhearsay by putting the word "alleged" at the top of the document. The attribution columns had no relevant nonhearsay purpose. The sole purpose of the attribution columns was to prove that defendant had taken more than $200,000 or more than $500,000 from Brockington, rather than some lesser amount, in order to prove the enhancement allegations. If the attribution columns in exhibits 3 and 4 were not admitted for their truth, they had no relevance at all.
The Attorney General asserts that the prosecution relied on the testimony of Brockington and McDonald "to prove that those expenses were actually incurred by appellant, and that they were not authorized by Kim Brockington." Neither Brockington nor McDonald testified regarding the vast majority of the expenses allocated in the attribution columns. They simply testified that they had provided the information that Waltrip used to produce the attribution columns. For example, although McDonald identified a number of businesses that she and defendant patronized, there were enormous numbers of charges attributed to defendant that were not associated with any of these businesses. No nonhearsay evidence was introduced at trial to explain why charges to the following businesses were attributed to defendant: Public Storage, Whole Foods, Beverages and More, Bonfante Gardens, Bed and Bath, Vitamin World, Internet Magic, Safeway, Sertech, Rite Aid, Target, Intellius, The Gap, Honda, Spin City Bicycles, Network Solutions, Kaiser, Payless, Ace Hardware, PW Supermarket, Longs, and Ticketmaster. This is just a sample of the attributions that were not explained by any nonhearsay evidence. Even though Brockington testified that she reviewed exhibit 3 and that it was correct, her trial testimony did not address the specific charges attributed to defendant on exhibit 3. Likewise, although McDonald's trial testimony addressed some of the specific charges, most of them were not addressed. Hence, it is not correct that the prosecution relied on their testimony to establish the attributions of charges to defendant on exhibit 3.
Second, the court's instruction that the jury was "not to assume that there is other evidence, other than what is being testified to" did not tell the jury that it could not consider the attribution columns for their truth because the court told the jury in the same instruction that "this witness [Waltrip] is testifying as to what she was told and also what she verified through different documents . . . ." (Italics added.) Since the jury would have reasonably understood that Waltrip was "testifying" to the information in the attribution columns, the court's instruction permitted the jury to accept her testimony about the hearsay information contained in the attributions columns as evidence of the truth of the attribution columns. (See also People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13 [limiting instructions are inadequate to prevent use of expert's hearsay testimony about out-of-court statements for the truth of those hearsay statements].)
The Attorney General claims that "the jury was instructed that to the extent Waltrip testified she put a particular expense in a particular column, the jury was not to consider this evidence for the truth of the matter." The three reporter's transcript pages that she cites do not provide support for this claim.
On the first of these three pages, the court overruled a defense hearsay objection to the prosecutor's question to Waltrip asking her what Brockington had told Waltrip a particular charge "related to." The charge in question was the first one that Brockington had herself made on defendant's credit card. In response to the objection, the prosecutor asserted that this question was "[n]ot for the truth of the matter, your honor, why she put it in one column versus another." The court responded, "[i]t will be allowed for that purpose." There was no instruction to the jury, and the question did not concern expenditures attributed to defendant. The other two pages document a sidebar discussion outside the presence of the jury. That discussion concerned a defense "speculation" objection to a question having nothing to do with attributions. The court sustained the objection. There was no instruction or admonition to the jury that Waltrip's testimony about attributions to defendant could not be considered for its truth.
The Attorney General also contends that the admission of the "attribution columns" was proper because this evidence was "simply admitted to save the prosecution from presenting each expense line by line and drawing out appellant's trial." We do not doubt that the enforcement of the rules of evidence increases the length of many trials by placing on the prosecution the burden of producing admissible evidence to prove charged allegations. Nevertheless, no law permits a court to allow the prosecution to prove its case with inadmissible hearsay "simply . . . to save the prosecution" the time that would be required to prove its case with admissible evidence. As the Attorney General fails to identify any hearsay exception that might have applied to the attribution columns, and we have not discovered any, the trial court erred in admitting the attribution columns.
The next question is whether the trial court's error was prejudicial. Although defendant argues in passing that his due process rights were violated by the admission of the attribution columns, he provides no explanation or argument as to why the erroneous admission of this evidence was not simply a state law error. We apply the standard of harmless error review applicable to state law errors. "No judgment shall be set aside, or new trial granted, in any cause, on the ground . . . of the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) "[A] 'miscarriage of justice' should be declared only when . . . it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.) " 'Under the Watson standard, prejudicial error is shown where " ' "after an examination of the entire cause, including the evidence," [the reviewing court] is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" ' [Citation.]" (People v. Wilkins (2013) 56 Cal.4th 333, 351 (Wilkins).)
Defendant contends that the erroneous admission of the attribution columns was prejudicial with respect to the enhancements, which depended on the precise amount of the funds he took for himself from Brockington. The Attorney General claims that the erroneous admission of the attribution columns was not prejudicial to defendant because "the prosecutor was fully prepared to prove up all the challenged expenses one by one," and "[e]xclusion of the entries in the two challenged columns, then, would not have meant that the challenged evidence was excluded, but only that the prosecution would have proved each and every expense in the [attribution] column on an item by item basis."
Defendant makes no effort to argue that the erroneous admission of the attribution columns could have been prejudicial with respect to his guilt on the substantive counts. The admissible evidence presented at trial overwhelmingly established that defendant had made unauthorized transfers of funds from the joint account and that he had spent substantial amounts of these funds on his own expenses without authorization from Brockington. The attribution columns were not necessary to establish that defendant had taken and spent without authority on his own expenses at least $950 from the Greenleaf funds, at least $950 from the Arundel funds, at least $950 from the Quinto funds, and at least $950 while Brockington was in treatment.
The Attorney General also repeats her claim that adding "alleged" at the top of each attribution column necessarily eliminated any potential for prejudice to defendant. Since the attribution columns provided the only evidence at trial to support most of the attributions of expenses to defendant, the jury plainly did not disregard the attribution columns as merely "alleged."
The Attorney General's novel claim is that an appellate court should simply deem nonprejudicial the erroneous admission of hearsay evidence of critical facts on the premise that the prosecutor would have adduced admissible evidence of those facts if the trial court had excluded the inadmissible evidence. She cites no authority for this claim, and we can find none. This is not a case in which the prosecutor introduced admissible evidence of these same facts and the hearsay evidence may be deemed harmless because it was merely cumulative. Instead, the prosecutor relied almost entirely on the inadmissible evidence to prove precisely how much of Brockington's money defendant had spent on his own expenses. It would be entirely speculative for us to imagine a completely different trial at which the attribution columns were absent and some sort of admissible evidence of each and every attribution was somehow adduced by the prosecutor in their stead. Harmless error review does not involve such speculation. The question before us is whether there is a reasonable chance that the jury would have entertained a reasonable doubt as to whether defendant took more than $500,000 (for the section 186.11 enhancement) or more than $200,000 (for the section 12022.6 enhancement) from Brockington if the attribution columns (and the other exhibits derived from them) had been excluded.
We conclude that the erroneous admission of the attribution columns was prejudicial with respect to the section 186.11 enhancement. The amount of the taking was strongly contested at trial, and the admissible evidence was far from clear that the taking exceeded $500,000. The admissible evidence demonstrated that there were multiple transfers of money from the checking portion of the joint account to defendant's personal and business accounts totaling $494,272.68, but there were also numerous transfers of smaller amounts of money from defendant's personal and business accounts back into the checking portion of the joint account that totaled $70,882.28. Thus, the net amount that defendant transferred from the checking portion of the joint account into his personal and business accounts was $423,390.40. Brockington deposited $12,787.38 into the savings portion of the joint account, and defendant deposited $6,805 from his personal and business accounts into the savings portion of the joint account. Defendant transferred $1,150 from the savings portion of the joint account to his personal and business accounts, so he overall contributed $5,655 from his own accounts to the savings portion of the joint account.
Defendant's transfers from the joint account, a net amount of $417,735.40 from both portions of the joint account, did not exceed $500,000. Furthermore, it was undisputed that he used over $126,000 of the money that he transferred to his personal and business accounts to pay expenses that Brockington admitted were hers. Brockington admitted that her own expenses exceeded $500,000 during the 2004 to 2007 period in question. Defendant also spent some money from the joint account on his own expenses, but without the inadmissible evidence the jury would have had difficulty determining precisely which expenses were attributable to him. Under these circumstances, we conclude that the erroneous admission of the attribution columns was prejudicial as to the section 186.11 enhancement.
Her treatment programs were substantial expenses. The 2005 residential treatment program cost $3,200. The two 2006 programs cost $6,500 each. The 2006/2007 sober living environment facility cost about $600 per month. Her weekly substance abuse counseling, from January 2007 to approximately July 2007, cost $100 a week.
The parties did not distinguish between the two enhancements in their original briefs so we asked them to submit supplemental briefing addressing whether the erroneous admission of the attribution columns was prejudicial as to the section 12022.6 enhancement. In her supplemental brief, the Attorney General contends that the erroneous admission of the attribution columns was harmless as to the section 12022.6 enhancement because Brockington testified that she did not authorize any of the transfers from the joint account into defendant's personal and business accounts. Since these transfers exceeded $200,000, she asserts that the error was not prejudicial as to the section 12022.6 enhancement.
Defendant argues in his supplemental brief that the error was prejudicial as to the section 12022.6 enhancement because the specific expenses attributed to defendant by Brockington and McDonald in their trial testimony did not amount to $200,000. Hence, the jury could determine the amount of Brockington's money that defendant spent on his own expenses only by relying on the attribution columns. He notes that the total amount of the transfers could not establish the amount of Brockington's "loss" under section 12022.6 because it was undisputed that defendant paid many of Brockington's expenses with funds from his personal accounts.
Defendant's argument has merit. Without the attribution columns, it would have been a Herculean task for the jury to even try to determine which charges were attributable to defendant rather than Brockington. The fact that defendant had charged hundreds of thousands of dollars on his credit cards during the three-year period did not establish how much of that amount was for his expenses and how much was for Brockington's expenses since Brockington testified that she charged on one of defendant's credit cards and he charged things for her on his other credit cards. Without the attribution columns, the jury would have encountered great difficulty in determining how much of the money transferred from the joint account was used to pay for Brockington's considerable expenses during that period. The trial testimony attributed only a few specific expenses to defendant and did not address the hundreds of expenses attributed to him on the spreadsheets. Consequently, it would have been difficult, in the absence of the attribution columns, for a jury to find beyond a reasonable doubt that Brockington had suffered a loss of more than $200,000. The attribution columns permitted the jury to bypass that issue by relying on hearsay evidence to establish the amount of those expenses that was attributable to defendant. We therefore conclude that the admission of the attribution columns was also prejudicial as to the section 12022.6 enhancement. Had the erroneously admitted attribution columns been excluded, there is a "reasonable chance" (Wilkins, supra, 56 Cal.4th at p. 351) that the jury would have entertained a reasonable doubt as to whether the amount of Brockington's loss exceeded $200,000.
Consequently, we must reverse the judgment as to the two enhancements and remand for potential retrial on those allegations.
B. Waltrip's Testimony
Defendant contends that Waltrip's testimony about the attributions should have been excluded as hearsay.
The prosecutor asked her: "How would you decide that those charges were attributed to Mr. Eppstein?" Waltrip responded: "Ms. Brockington would tell me this was not her charge. . . . And then I would look at documents to corroborate her statements."
Brockington told Waltrip that some charges were made by her parents.
Like the attribution columns, Waltrip's testimony about her preparation of the exhibits, to the extent that it was admitted for its truth, was hearsay as to the amounts in the attribution columns. Defendant essentially concedes that the erroneous admission of this testimony was not prejudicial with regard to the substantive counts. Since the enhancement allegations must be reversed due to the prejudicial admission of the spreadsheets, we need only rule that Waltrip's testimony about attributions at a retrial of the enhancement allegations must be limited to admissible evidence.
C. Restriction on Cross-examination
Defendant contends that the trial court prejudicially erred in limiting his trial counsel's cross-examination of Brockington and her father about expenses attributed to them.
1. Background
Defendant's trial counsel engaged in extended cross-examination of Brockington's father about the funds that defendant had provided to him and had paid toward Brockington family expenses. After many questions about expenses that were indisputably identified on the spreadsheets as Brockington family expenses, the prosecutor objected on relevance grounds to "going over and over again" regarding these undisputed expenses. "The important thing is none of these expenses have been attributed to [defendant]. We can be here all afternoon going over all of this." The court expressed the view that "we're going into too much detail" about undisputed expenses. Defendant's trial counsel argued that the defense was entitled to cross-examine Brockington's father about "his memory" to show that he "is inconsistent" and attack his credibility. The defense asserted that this cross-examination "does goes [sic] to our theory of the case," but it declined to disclose that theory. The trial court reasoned that "[y]ou can argue your case, [but] you're not allowed to confuse the jury" about expenses that are not in dispute. "I'm asking for you to stick to the amounts that were at issue, all right." The court sustained the prosecution's relevance objection. Defendant's trial counsel proceeded to elicit Brockington's father's testimony that he did not recall what items Brockington might have paid for on his behalf.
After Brockington's father had completed his testimony and Brockington had begun her testimony, defendant's trial counsel raised the defense's "concern" about the court's restriction on defense cross-examination. "Our feeling is we must be able to cross examine them on how she spent her money. And by stipulating to the fact that is she agreed to those expenses, in no way did we ever stipulate or would we ever stipulate to the fact that we can't talk about those expenses or effectively cross-examine the witnesses about those expenses to discuss the broad and key issue on how she spent her money." The court responded: "[T]he area that I feel that is relevant, and that you have every right to cross examine her where there are trends, patterns, possibilities that while she's only claiming, let's say, $500 in the Eppstein column, is another $500 in the same general area of possibilities that she only owned up to half but maybe was more than that area, but to go over line by line, just like with Mr. Brockington, check by check by check on issues, on amounts that are not in dispute, I'll give you some leeway as far as your theory of the case that she really spent more than she's owning up to. [¶] I see a relevance there, I'm not precluding you from going over in that area, but to go over now on every expense that she made when there is no nexus to a disputed issue is where my ruling is meant to address." "Here is where I have to draw the line, how much time is it going to consume for you to go after every expenditure that that person made, just to say, wow, you like to spend money remodeling your home. [¶] The point was made. It is not necessary that we dissect it document by document." "If you're going to create general patterns, trends of what she spent her money on, those are valid, with the limitations you are not starting to get cumulative and taking extensive time." "That is an enormous amount of consumption of time."
During cross-examination of Brockington, defendant's trial counsel elicited her testimony that she had paid for the remodeling of her parents' home and for some of the mortgage and property tax payments on their home and some of her parents' other expenses. She also wrote checks to her father for about $24,000. In addition, Brockington paid some of her friends' expenses. When defendant's trial counsel asked whether she had paid for her future husband's attorney's fees for his divorce, the prosecutor objected on relevance grounds, mentioning the prior discussions. The objection was overruled by the court, which said "I'll give defense a little more time to explore some of those." The cross-examination continued with only one minor further objection.
2. Analysis
Defendant contends that the court's restriction of his cross-examination of Brockington and her father violated his right to confrontation and due process.
" 'Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " (People v. Wilson (2008) 44 Cal.4th 758, 794.) "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) "A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
The trial court did not abuse its discretion in restricting unduly time consuming defense cross-examination of Brockington and her father about expenses that had been attributed to Brockington without dispute. The prohibited cross-examination was directed at further testimony concerning undisputed Brockington expenses. The court did not preclude the defense from cross-examining Brockington and her father about the general scope of her expenditures so as "to create general patterns, trends of what she spent her money on . . . ." It merely imposed a limit on questioning about matters that were not in dispute. Further testimony about these undisputed expenses would not have given the jury "a significantly different impression" of the credibility of either witness, so the trial court's restrictions did not violate the confrontation clause. (People v. Quartermain, supra, 16 Cal.4th at pp. 623-624.)
Defendant contends that the purpose of additional cross-examination was to show that "Brockington was generous with her family and friends." He argues that such evidence could have shown that defendant was "the beneficiary of her generosity." Brockington's generosity toward her friends and family was already demonstrated by the testimony she and her father had given. Yet she was adamant that she had not authorized defendant to use hundreds of thousands of dollars of her funds on his own expenses. The trial court's limitations on defense cross-examination did not preclude the defense from making its argument, but there is no indication that further cross-examination would have yielded any support for that theory. In any case, defendant essentially concedes that the court's restriction on cross-examination did not prejudice him as to the substantive counts. The enhancement findings are already being vacated due to the erroneous admission of the spreadsheet attribution columns. Hence, we would not need to consider whether the court's restriction on cross-examination was prejudicial as to the enhancements even if we found that it was an abuse of discretion.
D. Multiple Grand Theft Convictions
Defendant contends that he could not be convicted of three counts of grand theft rather than one count because all three offenses were "committed with one intention, one general impulse, and one plan" rather than separate plans.
The seminal case is People v. Bailey (1961) 55 Cal.2d 514 (Bailey). In Bailey, the issue was whether the defendant "was guilty of grand theft or of a series of petty thefts since it appears that she obtained a number of payments, each less than $200 but aggregating more than that sum." (Bailey, at p. 518.) The California Supreme Court applied the following test: "Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Bailey, at p. 519.) It concluded that the defendant, who had fraudulently received a series of welfare payments, was properly convicted of a single count of grand theft. (Bailey, at pp. 515, 520.)
The California Supreme Court recently overruled Bailey in People v. Whitmer (2014) 59 Cal.4th 733 (Whitmer). It held that "a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme." (Whitmer, at p. 741.) However, the court did not apply its new rule to the facts in Whitmer because a "long, uninterrupted series of Court of Appeal cases . . . have consistently held that multiple acts of grand theft pursuant to a single scheme cannot support more than one count of grand theft." (Whitmer, at p. 742.) Those Court of Appeal cases barred " 'multiple convictions for grand theft when the individual thefts arise from a recognizable plan or scheme, even though each theft is separate and distinct, and involves property or money exceeding the amount needed for grand theft.' " (Whitmer, at p. 739.) Constitutional due process precluded application of the court's subsequent conflicting interpretation to the defendant in Whitmer. (Whitmer, at p. 742.)
The California Supreme Court then applied Bailey to the facts in Whitmer. The defendant in Whitmer had arranged for the fraudulent sale of 20 motorcycles to fictitious buyers on 13 separate occasions. (Whitmer, supra, 59 Cal.4th at p. 735.) "[E]ach count of grand theft was based on a separate and distinct act." (Whitmer, at p. 736.) He was convicted of 20 counts of grand theft, and the jury found true a section 12022.6 allegation. (Whitmer, at pp. 735-736.) The California Supreme Court concluded that only one count of grand theft was permissible. "In finding the [section 12022.6] enhancement allegation true that defendant took property valued at more than $200,000, the jury necessarily found that the grand thefts arose 'from a common scheme or plan.' (Pen. Code, § 12022.6, subd. (b).) The law as it had existed for decades before defendant committed his crimes permitted conviction of only one count of grand theft under those circumstances. Because defendant is entitled to the benefit of that law, he cannot be convicted of more than one count of grand theft." (Whitmer, supra, 59 Cal.4th at p. 742.)
The Attorney General relies heavily on People v. Jaska (2011) 194 Cal.App.4th 971 (Jaska), which preceded the California Supreme Court's decision in Whitmer. Jaska had been convicted of five counts of grand theft (in addition to other counts), and the jury had found true section 186.11 and section 12022.6 enhancement allegations. (Jaska, at p. 973.) Jaska had been the office manager for a corporation, and she had been responsible for signing all corporate checks. (Id. at p. 975.) One count was based on Jaska taking money from the corporate petty cash account to pay for repairs to and maintenance for her personal vehicle. (Id. at pp. 976-977.) Two grand theft counts were based on checks she wrote from corporate accounts to pay bills on her two personal credit cards. (Id. at pp. 977-978.) A fourth grand theft count was based on payroll checks that Jaska wrote to herself for an amount greater than her salary. (Id. at p. 978.) The fifth grand theft count was based on Jaska's use of corporate funds to lease a car for her personal use. (Ibid.)
Although Jaska is mentioned in Whitmer, the California Supreme Court neither explicitly approved nor expressly disapproved of Jaska.
Jaska contended on appeal that she could not be convicted of more than one grand theft count because all of the grand theft counts had been committed "pursuant to one intention, one general impulse and one plan." (Jaska, supra, 194 Cal.App.4th at pp. 973-974, 980.) The Fourth District Court of Appeal acknowledged that it was a factual question under Bailey whether Jaska had acted with a single intent, impulse, and plan, and it examined "the record to determine whether there is substantial evidence to support a finding that the defendant harbored multiple objectives." (Jaska, at p. 984.) In the Fourth District's view, "[t]he Bailey doctrine applies as a matter of law only in the absence of any evidence from which the jury could have reasonably inferred that the defendant acted pursuant to more than one intention, one general impulse, or one plan." (Ibid.) The court upheld all five counts because it found that the evidence could have supported a finding that Jaska had separate intents and did not act pursuant to any plan or scheme but simply "in an opportunistic manner." (Jaska, at p. 985.)
The Fourth District's holding in Jaska did not survive the California Supreme Court's decision in Whitmer. In Whitmer, the California Supreme Court concluded that, because the jury's true finding on the section 12022.6 allegation meant that the jury had "necessarily found that the grand thefts arose 'from a common scheme or plan' . . . [, t]he law as it had existed for decades before defendant committed his crimes permitted conviction of only one count of grand theft under those circumstances . . . , [and] he cannot be convicted of more than one count of grand theft." (Whitmer, supra, 59 Cal.4th at p. 742.) In the case before us, as in Whitmer and Jaska, the jury found true a section 12022.6 allegation that "necessarily found" that the three grand theft counts "ar[o]se from a common scheme or plan." (§ 12022.6, subd. (b).) Under the "law as it had existed for decades before defendant committed his crimes . . . under those circumstances[,] . . . he cannot be convicted of more than one count of grand theft." (Whitmer, at p. 742.) We are bound by Whitmer. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, defendant could be convicted of only one grand theft count.
E. Statute of Limitations
Defendant claims that his trial counsel was prejudicially deficient in failing to challenge count 2 on statute of limitations grounds.
Count 2 charged defendant with grand theft based on his taking of funds from the Greenleaf sale during a period from February 2004 to April 2005. The limitations period for grand theft is four years, but it does not begin to run until "discovery" that a crime has been committed. (§§ 801.5, 803, subd. (c)(1).) "[T]he word 'discovery' is not synonymous with actual knowledge. [Citation.] 'The statute commences to run . . . after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry.' " (People v. Zamora (1976) 18 Cal.3d 538, 561-562.) The prosecution of defendant for count 2 commenced on July 15, 2010, when an arrest warrant was issued. (§ 804.) Hence, count 2 would be barred by the statute of limitations only if, prior to July 15, 2006, Brockington had knowledge of facts that would have made a reasonably prudent person suspect wrongdoing.
The information alleged that the offenses were not discovered "until on or about October 16, 2007 when Kim Brockington, shortly after her discharge from a drug rehabilitation center, first realized the money she had received from the sale and refinance of her real estate holdings and entrusted to the defendant had been dissipated from her bank account. Prior to October 16, 2007, Kim Brockington had no actual and constructive knowledge of the crimes because, the defendant continued to lie, conceal, and misrepresent to Kim Brockington that her money was being allocated to bona fide expenses related to her real estate holdings, and, in the exercise of reasonable diligence, the crimes could not have been discovered at an earlier date within the meaning of Penal Code section 803(c)." --------
Defendant maintains that his trial counsel should have challenged count 2 on statute of limitations grounds because a reasonably prudent person would have suspected before July 15, 2006 that funds were being taken without authorization from the joint account. In defendant's view, the fact that he told Brockington in February 2005 that she was running out of money and that she agreed to repeated refinancings thereafter should have led her to suspect that her funds were being purloined since more than $300,000 had been transferred into the joint account by that point. He argues: "[A] prudent person would have pursued a more vigorous inquiry in 2005, when the Greenleaf proceeds were gone, as well as at the time of each of the first four refinances . . . ."
Defendant's contention fails because Brockington lacked the knowledge that would have caused a reasonably prudent person to suspect wrongdoing prior to July 2006. While a reasonably prudent person might not have given defendant total control over her finances, the limitations period did not begin to run when she made a decision that appears imprudent in hindsight. The limitations period began to run only when the facts known to Brockington would have made a reasonably prudent person suspect wrongdoing. Brockington entrusted total control of her finances to her best friend, a person whom she had known for many years and trusted. Once defendant took control of Brockington's finances, he deprived her of any knowledge about the state of her finances by ensuring that only he received the bank statements on the joint account. As a result, Brockington knew only what defendant disclosed to her.
Assuming that Brockington knew that she had cleared over $400,000 from the sale of the Greenleaf house in 2004, this knowledge was coupled with her awareness that she had asked defendant to pay her considerable expenses. In 2004, Brockington knew that the Greenleaf funds had been used to pay for a nearly $50,000 investment in defendant's business, the remodel of the Arundel home, the mortgage payments on the Quinto and Arundel homes, Brockington's treatment, and all of Brockington's other expenses. Because defendant had taken responsibility for disbursing most of these funds, Brockington did not know how much money had been expended from the Greenleaf funds.
A reasonably prudent person would not have suspected wrongdoing unless she knew that the Greenleaf funds could not have been depleted by all of these expenses. This was knowledge that was unavailable to Brockington. Her lack of information did not change as she continued to incur expenses, and defendant continued to pay those expenses. Since there was no indication that Brockington was aware of the extent of her expenses, she could have reasonably believed that her considerable expenses, rather than wrongdoing, were responsible for depleting the additional funds supplied by the subsequent refinancings. It was only in 2007, when she learned that the mortgage payments were not being made, that she had reason to suspect wrongdoing.
Under these circumstances, a reasonably prudent person who was unaware of the disparity between her expenses and her available funds would not have suspected wrongdoing. Since a challenge to count 2 on statute of limitations grounds would have failed, defendant's trial counsel was not prejudicially deficient in failing to make such a challenge.
III. Disposition
The judgment is reversed. The matter is remanded to the trial court with instructions to (1) aggregate the three grand theft counts into a single count, (2) vacate the jury's true findings on the two enhancement allegations, and (3) permit the prosecution to retry those allegations if it so chooses within the statutory period. If the prosecutor declines to retry the enhancement allegations, the court shall resentence defendant on the remaining two counts.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Bamattre-Manoukian, Acting P. J. /s/_________
Grover, J.