Opinion
A152555
07-07-2020
THE PEOPLE, Plaintiff and Respondent, v. LUTHER FELTUS-CURRY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR306160)
Luther Feltus-Curry was convicted by a jury of 27 felonies, including multiple counts of grand theft and making false statements in the sale of securities arising out of a fraudulent investment scheme involving mostly elderly victims. The jury also found two enhancements true. The trial court sentenced Feltus-Curry to 23 years and 8 months in prison and ordered him to pay restitution.
Feltus-Curry contends the judgment must be reversed because the prosecution did not prove it brought the case within the statute of limitations and his trial counsel was ineffective for failing to present evidence he says showed his innocence. He further argues there was insufficient evidence to support one grand theft conviction and there were errors in sentencing and the restitution order. We affirm.
BACKGROUND
In light of the limited issues raised on appeal, we will not provide a detailed recitation of the underlying facts. In this portion of our opinion, we will only discuss the facts generally relevant to the resolution of this appeal. Other material facts will be added in the course of our discussion of specific issues.
At all relevant times, Feltus-Curry was a pastor at a Vallejo church. He taught finance classes to new church members and came to know and advise many of them. Prior to the transactions at issue in this case, he had been licensed to offer and sell securities, but his license expired in February 2008.
Around June 2008, Feltus-Curry was hired by a former business associate, Lori Arzamendi, to work as a marketing representative for Grand Trine LLC, an investment business Arzamendi had formed with Mindy Baransky and Alma Perez. In October 2008, Perez, Arzamendi, and Feltus-Curry formed Philanthropy LLC owned by Grand Trine. In November 2008, Feltus-Curry formed his own business, 180HG LLC. He was its sole owner.
Perez was Feltus-Curry's co-defendant at trial. She was convicted of 11 charges related to the investment scheme. In People v. Perez, Case No. A151724 [filed July 7, 2020] [nonpub. opn.], we affirmed those convictions.
From 2008 to 2010, Feltus-Curry sold securities in the name of Grand Trine, Philanthropy, or 180HG. Many of the investors were members of his church or family members. Generally, he told potential investors their funds would be insured and not be at risk. They would receive returns pursuant to a specific rate and schedule, some as high as 18% every 90 days. He informed them their principal would always be secure. Collectively, they invested hundreds of thousands of dollars into the companies.
The investments obtained by Feltus-Curry were deposited into bank accounts for these various companies. In turn, these proceeds were used to fund a variety of other seemingly improbable investment programs, including joint ventures and "private placement programs" at banks. Funds were also used for what appears to be personal expenses, transferred to other financial institutions or withdrawn.
Eventually, Feltus-Curry informed many of his investors their money was gone. For the most part, their principals were never returned.
On March 14, 2014, a felony complaint was filed against Feltus-Curry and Perez. An arrest warrant issued the same day. The amended information charged Feltus-Curry with 33 felonies: 13 counts of violating Penal Code section 487, subdivision (a) (grand theft), 19 counts of violating Corporations Code sections 25401 or 25540, subdivision (b) (misrepresentation or omission in the sale of a security), and one count of violation Corporations Code section 25541 (operation of a fraudulent security scheme). An aggravated white collar crime enhancement under Penal Code section 186.11, subdivision (a)(2) and an excessive taking enhancement under Penal Code section 12022.6, subdivision (a)(2) were also alleged.
In 2017, the matter was tried to a jury. Feltus-Curry moved for acquittal under Penal Code section 1118.1 on statute of limitations grounds. Two of the charges were dismissed. The jury convicted Feltus-Curry of 27 of the felony counts and found the two enhancements true. The court declared a mistrial as to the counts for which the jury could not reach verdicts. The trial court sentenced Feltus-Curry to a prison term of 23 years and 8 months. Feltus-Curry appeals the judgment.
DISCUSSION
A. Statute of Limitations
Feltus-Curry argues the trial court erred when it denied his motion for acquittal based on the statute of limitations. He contends that when he made the motion, there was no evidence before the jury of the date the prosecution commenced. Without such evidence, he says the prosecution could not prove it commenced the case within the limitations period. In his view, this omission was fatal to the prosecution's entire case and requires all charges against him dismissed.
The statute of limitations is a substantive matter which the district attorney must plead and prove by a preponderance of the evidence at trial. (People v. Zamora (1976) 18 Cal.3d 538, 564-565, fns. 26 & 27.) Penal Code section 803, subdivision (c), states the limitations periods for grand theft and fraud do not commence until the discovery of the offense. (Pen. Code, § 803, subd. (c).) Penal Code section 801.5 requires that Penal Code section 803 subdivision (c) offenses including grand theft and fraud to "be commenced within four years after discovery of the commission of the offense, or within four years after the commission of the offense, whichever is later." (Pen. Code, § 801.5.) A prosecution commences with the issuance of an arrest warrant. (Pen. Code, § 804, subd. (d).)
"In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal." (Pen. Code. § 1118.1.) Appellate courts "review independently a trial court's ruling under section 1118.1 that the evidence is sufficient to support a conviction." (People v. Cole (2004) 33 Cal.4th 1158, 1213.)
When an appellate court is reviewing a statute of limitations question after a conviction for the charged offenses, the proper question is whether the record demonstrates that the crime charged actually fell within the applicable statute of limitations. (People v. Smith (2002) 98 Cal.App.4th 1182, 1192-1193 (Smith).) "When a statute of limitations issue has been tried to a jury, on appeal the question becomes whether there was substantial evidence to support the jury's implied findings." (People v. Le (2000) 82 Cal.App.4th 1352, 1361 (Le).)
At the conclusion of the prosecution's case-in-chief, Feltus-Curry and his co-defendant Perez moved under Penal Code section 1118.1 for a judgment of acquittal on all counts on the grounds of insufficient evidence that prosecution was timely under the four-year statute of limitations. They argued the victims waited too long to take action after discovering the theft. Counsel for all parties discussed the date prosecution commenced for statute of limitations purposes with the court and all settled on March 14, 2014. The trial court then granted Feltus-Curry's motion on two counts (counts 32 and 33 related to victim Rena V.) but denied the motion as to all others. When trial resumed, the People rested, and without presenting additional evidence, so did the defense.
The court went on to instruct the jury, including the following: "A defendant may not be convicted of use of scheme to defraud in connection with the sale or offer to sell securities[;] [o]ffer to sell or offer of sale of securities by means of false statement or a material omission[; or] grand theft, unless the prosecution began within four years of the date the crimes were discovered or should have been discovered. [¶] The present prosecution began on March 14th, 2014. 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 had been committed. [¶] The People have the burden of proving by a preponderance of the evidence that the prosecution in this case began within the required time. [¶] . . . To meet the burden of proof by a preponderance of the evidence, the People must prove that it is more likely than not that the prosecution in this case began within the required time." Neither party objected to this instruction.
In closing argument, Feltus-Curry's counsel observed that the prosecution "completely disregarded the [s]tatute of [l]imitations" and argued to the jury: "I know this is the first time you're hearing about [the statute of limitations], but dates matter. . . . [Y]ou as jurors have to decide whether or not they filed this case within the Statute of Limitations. And the Statute of Limitations is four years from the point they knew of the fraud or should have known of the fraud." Feltus-Curry's counsel went on: "[The prosecutor] was to prove that none of these people knew or should have been aware of fraud up until March 14th, 2010; that none of these people knew or should have known that fraud was occurring in '08, '09, 2010 . . . . Reasonable, diligent investors would have figured it out before that . . . ."
In rebuttal, the prosecutor reiterated that the prosecution began on March 14, 2014, and that "[t]he 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 prosecutor then argued that "the point when a crime should have been discovered" must account for the circumstances under which each of the victims knew Feltus-Curry. She observed that most of them knew him at least a decade, if not longer, from attending the same church where he was a pastor and taught classes. She argued such circumstances were to be used in determining when a victim "ought to have known" of the fraud. The jury returned guilty verdicts on 27 counts.
We shall not reverse the jury's convictions on these counts or dismiss them. These cases are instructive.
In People v. Posten (1980) 108 Cal.App.3d 633 (Posten), the expiration of the statute of limitations on the face of the information was overlooked in the trial court and circumstances sufficient to toll the limitations period were neither alleged in the information nor proven at trial. (Id. at p. 648.) At oral argument before the court of appeal, the defendant conceded he had been incarcerated in an out-of-state prison during the time in question. (Ibid.) Thus, the court concluded the defect did not require reversal. (Ibid.) It explained: "Nothing in the case law requires reversal or retrial for jurisdictional defects when those defects are as a matter of law cured on the undisputed record . . . . To decide otherwise in this case would be to require further proceedings at the trial level which could be of no legal benefit to the appellant but which would most certainly waste his time and the taxpayers' money." (Id. at pp. 648-649.)
In People v. Lewis (1986) 180 Cal.App.3d 816 (Lewis), the defendant was convicted of involuntary manslaughter. (Id. at p. 819.) After the crime was committed in 1980, a warrant was "promptly" issued for the defendant's arrest but he could not be located until 1984. (Id. at p. 820.) The information was filed more than three years after the crime was committed and did not include any tolling allegations. (Id. at p. 821.) For the first time on appeal, the defendant argued a defense under the statute of limitations, which was three years. (Ibid.) The court observed that "the failure to plead and prove facts showing timely commencement of the action was an error of jurisdictional proportions." (Ibid.) The court held, however, that "the error . . . was not prejudicial and [did] not require a reversal of the defendant's conviction. This [was] so because the issuance of a valid warrant for [the] defendant's arrest shortly after the commission of the crime [was] an undisputed fact and the issuance of the arrest warrant tolled the limitations period as a matter of law. The existence of an event tolling the period being an undisputed fact, the error in failing to plead that event or to prove it to the jury [was] harmless." (Ibid.)
In People v. Castillo (2008) 168 Cal.App.4th 364 (Castillo), the defendant also presented a statute of limitations of defense, arguing there was no substantial evidence to support the jury's finding that the prosecution against him for sexual assault began before the statute of limitations expired. (Id. at p. 366.) The court held that when a prosecution commenced was a legal question that was submitted to the jury in error. (Id. at pp. 374-376.) It concluded the error was harmless, however, because the date the information was filed—a matter of public record—demonstrated that the statute of limitations did not expire before the prosecution against the defendant commenced. (Id. at pp. 366, 375-379.) The court reached this result even though the charging document was not in evidence before the jury. (Id. at p. 377.)
Here, substantial evidence supports the jury's findings that the prosecution was timely. In reaching the 27 guilty verdicts it returned against Feltus-Curry, the jury impliedly found each of them were timely prosecuted, that is, the prosecution began within four years of when Feltus-Curry's victims must or should have known of his crimes. The issuance of the warrant for Feltus-Curry's arrest on March 14, 2014 is an undisputed fact. The date of issuance of the warrant provided sufficient proof that the prosecution commenced on March 14, 2014, the date the statute of limitations tolled. (See Lewis, supra, 180 Cal.App.3d at p. 821.) The parties litigated Feltus-Curry's statute of limitations defense, and the court instructed the jury with the March 14, 2014 date. Even without the warrant before the court at the time of Feltus-Curry's motion for acquittal under section 1118.1, the jury's verdicts comported with the parties' arguments and the court's instruction and should not be reversed. (See id.; Castillo, supra, 168 Cal.App.4th at p. 377.)
Further, most of the victims related to the convictions Feltus-Curry now challenges testified that he solicited them for money sometime between 2008 and 2010 and they realized they had been victimized within the limitations period, that is, within the four-year period prior to the start of the prosecution. Dan F., who invested his nearly $105,000 retirement bonus in 2008, testified that he realized his money was gone in 2011, when Feltus-Curry told him it was gone. Martin S., who invested approximately $10,000 in 180HG in 2008, testified that Curry told him his money was gone in a September or October 2011 meeting. Lilah B., who invested $55,000 in Philanthropy in 2009, testified that Feltus-Curry informed her that her money was gone "after 2010." Jeanette D., who initially invested $50,000 in Grand Trine in 2008 and an additional $331,000 in 180HG in April 2010, learned at some point her money was gone, and that she discussed her dealings with the Department of Justice investigator sometime in 2013. Ida R., who invested $50,000 in Philanthropy in November 2008, testified that Feltus-Curry told her she lost her money after November 2010, when she had prepared a written request to withdraw some of the interest from her investment. Gwendolyn D., who invested $78,000 in Philanthropy in 2008, learned her money was gone in April or May 2011.
For those victims who did not testify as to when they were told or when they discovered their money was gone, there was still sufficient evidence that the charges related to them were filed within the limitations period. Mark J., who invested tens of thousands of dollars between 2008 and 2009 said it was anywhere from January through April 2010 when Feltus-Curry told him he could not withdraw funds from his investment amd he felt "something wasn't right." Marshall M., who invested $160,000 in 180HG in 2009, testified he never got these funds back, but 180HG's bank records showed disbursements to Marshall M. for $3,000 each on April 28, May 26, June 28, August 1, and August 2, 2010.
Under these circumstances, whether or not the victims unreasonably delayed reporting Feltus-Curry's fraudulent activity was a question for the jury. (See People v. Petronella (2013) 218 Cal.App.4th 945, 956 (Petronella).) The guilty verdicts on each of the 27 felony counts demonstrates the jury determined they were timely prosecuted. For the victims who said they did not learn their money was lost until Feltus-Curry told them in late 2010 or in 2011, their testimony was sufficient evidence of a timely prosecution. Whether or not Mark J. felt reassured by Feltus-Curry's message that his investment was safe, a jury could reasonably determine that such assurances did not trigger the limitations period. The multiple disbursements to Marshall M. provided a basis for the jury to conclude the statute had not yet been triggered. Since the statute of limitations was litigated, presented to the jury, and decided, there is no basis to reverse the convictions as time-barred.
Feltus-Curry argues the prosecution was required to introduce evidence of the date the prosecution commenced in its case in chief so the court and jury could resolve the issue of whether the prosecution commenced within the limitations period. He says there was no such evidence when he made his acquittal motion. No matter. "When a statute of limitations issue has been tried to a jury, on appeal the question becomes whether there was substantial evidence to support the jury's implied findings." (Le, supra, 82 Cal.App.4th at p. 1361.) "Nothing in the case law requires reversal or retrial for jurisdictional defects when those defects are as a matter of law cured on the undisputed record." (Posten, supra, 108 Cal.App.3d at p. 648; see also Smith, supra, 98 Cal.App.4th at pp. 1192-1193.) The arrest warrant is in the record, and Feltus-Curry cannot dispute that it was issued on March 14, 2014. Feltus-Curry's counsel voiced no objection when the court settled on March 14, 2014 for its section 1118.1 statute of limitations analysis. Accordingly, the jury was properly instructed that the prosecution commenced on that day. Counsel argued the statute of limitations to the jury. The victims testified about their discovery of his crimes. We will not reverse 27 convictions for untimeliness when the date the prosecution commenced is clearly evidenced in the record, the jury was instructed on the date, and the matter was tried to the jury. Substantial evidence supports the jury's implied findings that the victims discovered Feltus-Curry's criminal conduct within the limitations period.*
The court's ruling on Feltus-Curry's section 1118.1 motion for acquittal further underscores both his acceptance of the March 14, 2014 date as the date prosecution commenced, and the court's determination of the date as a settled issue. The court granted Feltus-Curry's motion on two counts (counts 32 and 33) on timeliness grounds based on March 14, 2014 as the date the statute of limitations tolled. The tolling issue, although not placed in evidence before the jury, was litigated and decided, and the jury so instructed. The prosecution's failure to put it into evidence does not constitute reversible error.
People v. Le (2000) 82 Cal.App.4th 1352 (Le), does not compel a different result. There, the defendants, who were convicted for grand theft and insurance fraud, appealed on the ground that the prosecution had not shown the action was commenced within statute of limitations. (Id. at p. 1355.) The prosecution presented arrest warrants issued within three years of the offenses, but those warrants were issued in a case that had been dismissed. (Id. at pp. 1356, 1359.) The defendants argued the earlier arrest warrants could not commence the current prosecution and that the prosecution failed to prove that the arrest warrants had a tolling effect that would save the indictment. (Id. at pp. 1357-1358.) The court agreed with the defendants that, although issuance of the arrest warrants may have commenced an earlier prosecution, it did not commence the prosecution that resulted in the conviction, which began with a county grand jury indictment. (Id. at p. 1357.) The court reversed the convictions and barred retrial because the county grand jury indictment was not issued within the limitations period. (Id. at pp. 1361-1362.) Here, there is no question the prosecution against Feltus-Curry commenced on March 14, 2014, when the sole arrest warrant issued.
B. Former Section 12022.6, subdivision (a)(2) Sentence Enhancement
When Feltus-Curry was sentenced, former Penal Code section 12022.6 required a trial court to impose an additional two years in prison for felonies resulting in a loss greater than $200,000. (See former Pen. Code, § 12022.6, subdivision (a)(2).) The jury found an allegation that Feltus-Curry took, damaged, and destroyed property in excess of $200,000 under section 12022.6, subdivision (a)(2) to be true. The trial court imposed a two-year term for the enhancement.
On January 1, 2018, former Penal Code section 12022.6 sunsetted and was repealed by its own terms. (See former Pen. Code, § 12022.6, subd. (f) ["It is the intent of the Legislature that the provisions of this section be reviewed within 10 years to consider the effects of inflation on the additional terms imposed. For that reason, this section shall remain in effect only until January 1, 2018, and as of that date is repealed unless a later enacted statute, which is enacted before January 1, 2018, deletes or extends that date."].) It was not re-enacted or replaced.
In light of the repeal, Feltus-Curry argues his two-year term for the section 12022.6 enhancement should be stricken because his case is not yet final. He invokes In re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Hajek and Vo (2014) 58 Cal.4th 1144 (Hajek) to support his claim. In Estrada, the Supreme Court held that "[i]t is the rule at common law and in this state that when the old law in effect when the act is committed is repealed, and there is no savings clause, all prosecutions not reduced to final judgement are barred." (Estrada, supra, 63 Cal.2d at pp. 746-747.) In Hajek, the Supreme Court held that under Estrada, a firearm use enhancement imposed on the defendant under section 12001.1 for his use of a pellet gun be stricken. (Hajek, 58 Cal.4th 1144 at p. 1194-1196.) The Legislature repealed the enhancement and redefined pellet guns as firearms only when sold to minors. (Id. at p. 1195.) In light of the legislative determination to reduce punishment for using a pellet gun in a crime, the Supreme Court ordered the defendant's firearm use enhancement stricken and replaced it with an enhancement for use of a deadly or dangerous weapon. (Id. at pp. 1196-1197.)
But neither Estrada nor Hajek controls here. In In re Pedro T. (1994) 8 Cal.4th 1041 (Pedro T.), the California Supreme Court refused to apply Estrada to reduce a sentence for unlawful driving or taking a vehicle after a temporary sentencing increase expired on its own terms. (Id. at pp. 1043-1045, 1053.) The court held Estrada inapplicable to a statutory repeal due to a sunset clause. (Id. at p. 1043.) The existence of a sunset or expiration date for a punishment does not evince a legislative intent to reduce punishment in cases that were not final when the statute expired. (Id. at pp. 1045-1050.) On the contrary, the court observed that "the very nature of a sunset clause, as an experiment in enhanced penalties, establishes—in the absence of evidence of a contrary legislative purpose—a legislative intent that the enhanced punishment apply to offenses committed throughout its effective period." (Id. at p. 1049.) The court concluded the defendant was not entitled to benefit from the statute's sunset because, unlike in Estrada, the clear legislative intent was that those who committed crimes during the period of increased punishment were to receive the increase regardless of when their cases became final. (Id. at pp. 1045-1046.) The court also observed that a contrary rule that "retroactively lessened the sentence imposed on an offender pursuant to a sunset clause would provide a motive for delay and manipulation in criminal proceedings." (Id. at pp. 1046-1047.)
The court's reasoning in Pedro T. applies here. The plain language of the statute shows the Legislature intended to impose longer prison terms on offenders who caused losses in excess of specified threshold amounts. There is no evidence of legislative intent to reduce punishment for persons who stole excessive amounts while the statute was in effect or to strike punishments imposed for offenses committed during that period. The statutory repeal was based on the assumption that inflation could make the monetary threshold in the statute too easy to reach over the decade following enactment. (See former Pen. Code, § 12022.6, subd. (f).) That concern does not apply to Feltus-Curry, who committed his crimes from 2008 through 2010, well before the sunset. Repeal of section 12022.6 is not grounds to strike the two-year sentence enhancement.
C. Sufficiency of the Evidence for Grand Theft Conviction
Relating to Marshall M.
" 'In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Golde (2008) 163 Cal.App.4th 101, 108.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) We presume in support of the judgment the existence of every fact the jury could have reasonably deduced from the evidence. (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186.)
The verdict on count 26 against victim Marshall M. for grand theft by false pretenses "requires only that '(1) the defendant made a false pretense or representation to the owner of property; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation.' " (People v. Williams (2013) 57 Cal.4th 776, 787.)
Feltus-Curry claims there was no evidence he made a false or fraudulent representation or pretense, or that M. transferred his money in reliance on any fraudulent representation or pretense. There is no basis to reverse this conviction for insufficient evidence.
M. testified that he received a $160,000 settlement from his ex-wife's wrongful death lawsuit. His original plan was to use the money pay down bills and his mortgage, but Feltus-Curry "had a better view of things" and told him to invest the money into another account. M. was told by Feltus-Curry that he could access his invested money whenever he wanted. M. thought investing with Feltus-Curry meant that he "was going to have the money for a very long time" and that "it was going to be all right." Other evidence indicates M.'s funds were not invested as he thought. A Department of Justice auditor testified that $160,000 from M. was deposited into the bank account of 180HG, the entity Feltus-Curry owned. Asked how the money was used, the auditor explained, "There were several debit activities following that deposit; the significant ones include a $2,500 cash withdrawal and $148,000 transfer to another entity." From this evidence, the jury could reasonably deduce Feltus-Curry falsely represented the nature of the investment to M.
There was also sufficient evidence that M. transferred his $160,000 to Feltus-Curry in reliance on the false representations. "[R]eliance means that the false representation 'materially influenced' the owner's decision to part with his property; it need not be the sole factor motivating the transfer." (People v. Wooten (1996) 44 Cal.App.4th 1834, 1842.) "Reliance may be inferred from all the circumstances." (Id. at p. 1843.) M. plainly stated that he invested the $160,000 and bank records reflect the funds were transferred into Feltus-Curry's 180HG bank account. M. thought the investment described by Feltus-Curry was "tantalizing." By investing the money with Feltus-Curry, M. "thought it was going to be all right" though "it didn't turn out like that." There was sufficient evidence of reliance on Feltus-Curry's false representations.
Feltus-Curry contends M.'s testimony never described a false representation in his testimony and the People do not identify one, noting M. could not recall any of the details of the investment. Feltus-Curry also says M. gave contradictory testimony indicating Feltus-Curry already had M.'s money when they discussed investments.
"We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [Citation.] 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt.' [Citation.] 'Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal.' " (Zamudio, supra, 43 Cal.4th at pp. 357-358.) We must affirm if the circumstances reasonably justify the jury's finding of guilt regardless of whether the circumstances might also reasonably be reconciled with a contrary finding. (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Thomas (1992) 2 Cal.4th 489, 514.)
We recognize that M. could not recall all the details of conversations and at times sounded confused or unclear. But his testimony along with the circumstances of the transfer of funds reasonably justify the jury's guilty verdict. M. believed he could access his investment funds whenever he wanted and that his funds would last a long time. Neither were true. It was reasonable for the jury to infer these beliefs were rooted in false representations made by Feltus-Curry, who made similar statements to others. Further, even though the details of the timing of the transfer were unclear, M.'s reliance on Feltus-Curry's false representations is also sufficiently supported by the evidence. He found the proposed investment tantalizing, so he gave funds to Feltus-Curry to invest rather than pay down bills as he originally intended.
D. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient under an objective standard and that it is reasonably probable that defendant would have achieved a more favorable result in the absence of his trial attorney's deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland).) "[A] court must indulge a 'strong presumption' that counsel'' conduct falls within the range of reasonable professional assistance . . . ." (Bell v. Cone (2002) 535 U.S. 685, 702.) In evaluating such a claim, we "defer[ ] to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) " 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny [citation] . . . courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.' " (People v. Broditt (1998) 61 Cal.App.4th 1312, 1335.) Reviewing courts defer to counsel's reasonable tactical decisions, and a conviction will be reversed only if there could be no conceivable reasons for counsel's acts or omissions. (People v. Jones (2003) 29 Cal.4th 1229,1254.) We independently review the record to determine whether Feltus-Curry has demonstrated his counsel's performance was deficient and if so, that he suffered prejudice. (In re Alvernaz (1992) 2 Cal.4th 924, 944-945.)
When the trial court has denied a motion for new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence but reviewing de novo the ultimate question of whether the facts established demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
Feltus-Curry argues counsel was ineffective for failing to investigate and present evidence that in late November 2008, he and his wife invested $20,000 of their own money in Philanthropy. He says this personal investment reflected his good faith belief in what he was selling investors and had it been presented as evidence, it "would have bolstered the defense in a way that none of the other evidence did."
After the verdict, Feltus-Curry's trial counsel left the Solano County Public Defender's Office. Marlo Nisperos was appointed to represent him through sentencing. On behalf of Feltus-Curry, Nisperos moved for a new trial based in part on trial counsel's alleged failure to investigate defenses related to his personal investment in Philanthropy. At the evidentiary hearing on the motion, trial counsel testified she did not ask an investigator to interview any witnesses. She did not think it would be beneficial to have an investigator speak with victims because most of them were elderly and vulnerable and she saw no upside in having an investigator interrogate them in an effort to find inconsistencies and credibility issues. Trial counsel acknowledged she never spoke to Feltus-Curry's wife or asked an investigator to interview her.
Asked if Feltus-Curry told her that his wife had invested $20,000 in Philanthropy, trial counsel said it sounded familiar, but she could not remember specific conversations with him. But he never told her his wife was one of the victims in the investment scheme. She added: "I specifically don't remember whether or not I was advised or felt she was a victim. Mr. Feltus-Curry may have had conversations with me about the fact that they had invested, but it didn't necessarily play into my tactical decision to not bring her in because the money that you could see, the money going into all their accounts, her name was on it and then it was being spent. . . . . There [were] so many problems in that account that it could have been highlighting . . . her name on it, to then say that she didn't know what was going on and that she was a victim, I don't think would have worked in front of a jury." She also said she did not call Feltus-Curry's wife to testify because "her name [was] on all those accounts with [her husband] on where the money was going in and out." She was concerned his wife would further incriminate Feltus-Curry if she took the stand.
Feltus-Curry also took the stand at the evidentiary hearing. Asked if he ever told trial counsel that his wife was an investor, he responded: "I told her; that's why I kept asking for an appointment. I said: There's things you need to know and understand about what really happened versus what I'm being accused of that you don't know about, and the only way you can find out about them are for us to sit down and talk about us and talk about what is the strategy." He said the appointment never happened. The lawyer never discussed the investment with him.
The trial court denied the new trial motion and rejected the ineffective assistance claim. The court recounted that early on in the proceedings defense counsel had effectively "knocked out" several counts of first degree burglary against Feltus-Curry, which were the most serious charges in the case. Feltus-Curry's trial counsel was also able to eliminate several other counts on statute of limitations grounds. The court expressed another concern about calling Feltus-Curry's wife to testify, observing it could have been "setting a stage where [a spouse] might end up getting charged as an aider and abettor, which seemed a distinct possibility in this case." Further, the court saw no prejudice, observing that "[t]he evidence of guilt was overwhelming."
On this record, there were several rational, tactical, and satisfactory reasons for trial counsel to reject interviewing Feltus-Curry's wife or calling her to testify. She did not want to draw attention to his wife's involvement because her name was on the 180HG accounts that Feltus-Curry formed to further the fraudulent investment scheme and was concerned it would make Feltus-Curry's conduct appear more deliberate. Any argument that portrayed Feltus-Curry and his wife as victims would not have been persuasive to a jury was also reasonable in light of her access to 180HG's bank account, and the debits from that account related to personal and household items. Nor is it clear from either Feltus-Curry or his wife's testimony at the evidentiary hearing that they actually lost the money or never recouped it in some other form. Moreover, it appeared that some of the proceeds from Feltus-Curry's scheme went into accounts he shared with his wife and were used to pay the couple's expenses. Since there was a reasonable risk that the wife's testimony would hurt, rather than help, her husband's case, counsel's decision not to investigate or call her to testify was a reasonable tactical decision. (People v. Bolin (1998) 18 Cal.4th 297, 333 [counsel's decision on what witnesses to utilize is generally deemed a tactical decision which is accorded great judicial deference and generally will not rise to level of reversible error].)
Feltus-Curry says "[t]he mere fact that [counsel] claimed to be making tactical decisions does not make that decision reasonable or competent." But there were legitimate reasons to refuse to call Feltus-Curry's wife to the stand, and even now Feltus-Curry cannot say definitively that these reasons would not have overshadowed the "possible" or "potential" benefits of her testimony. We will not second-guess reasonable tactical decisions. (People v. Scott (1997) 15 Cal.4th 1188, 1212 [reviewing courts do not "second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight"].)
Since we conclude counsel's performance was not deficient, we need not address whether her tactics caused any prejudice. "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; see Strickland, supra, 466 U.S. at p. 697 ["there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order [set forth above] or even to address both components of the inquiry if the defendant makes an insufficient showing on one"].)
E. Restitution Award to Marshall M.
"[W]hen a defendant is convicted of a crime involving a victim who 'has suffered economic loss as a result of defendant's conduct' [citation], the court must require the defendant to pay full restitution directly to the victim or victims of the crime . . . . A 'defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.' " (People v. Giordano (2007) 42 Cal.4th 644, 651-652 (Giordano).) Once the People make a prima facie case on the basis of a victim or witness claim, statement or testimony, the burden shifts to the defendant to show that the amount is other than that claimed. (People v. Millard (2009) 175 Cal.App.4th 7, 26, 30 [defendant did not carry his burden to show either that the amount was overstated or the loss had not occurred].) " 'The trial court is not required to order restitution equal to the exact amount of the loss, but it must employ a rational method that makes the victim reasonably whole.' " (Petronella, supra, 218 Cal.App.4th at p. 973.) On appeal, a trial court's restitution award is reviewed for abuse of discretion by asking " 'whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts.' " (Giordano, supra, 42 Cal.4th at p. 663.)
After M. invested $160,000 with Feltus-Curry, he received a series of payments. 180HG's bank records showed total disbursements to M. of $15,000 in increments of $3,000 on April 28, May 26, June 29, August 1, and August 2, 2010. M. stated he never got back his initial $160,000 investment. Following Feltus-Curry's conviction, the prosecution requested $160,000 in restitution to M. At the sentencing hearing, Feltus-Curry's post-conviction counsel informed the court she was just handed the restitution document. The trial court ordered the restitution in accordance with the prosecutor's recommendation and reserved jurisdiction in the event counsel wanted to challenge the order.
Feltus-Curry contends the $160,000 award of restitution to M. was incorrect and must be reduced by $15,000 to $145,000. Again, we disagree.
An objection to the amount of restitution must be raised in the trial court; if it is not, it is forfeited for purposes of appeal. (People v. Anderson (2010) 50 Cal.4th 19, 26, fn. 6 (Anderson).) There is no indication in the record that Feltus-Curry objected to M.'s restitution order or requested a restitution hearing in the trial court. Feltus-Curry's objection to the amount of restitution is deemed waived. (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071; Anderson, supra, 50 Cal.4th at p. 26, fn. 6.)
Feltus-Curry requests we exercise our discretion to consider the matter and asks we invoke "an exception to the general waiver rule that permits a court to consider for the first time on appeal a pure question of law which is presented by undisputed facts." We shall not. "[I]n the interests of fairness to the sentencing court, fairness to the opposing party, and the needs for an orderly and efficient administration of law and judicial economy, a defendant's failure to object in the trial court to the imposition of a restitution fine constitutes a waiver of the right to complain thereof on appeal." (People v. Gibson (1994) 27 Cal.App.4th 1466, 1469.) Had Feltus-Curry sought a hearing or objected in the trial court, the issues he raises regarding the $3,000 disbursements would have been reviewed and the trial court could have considered the evidence to determine whether the payments were a distribution of earnings or a return of principal.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.